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August 1, 2013
Intent to amend Bar Rule 3-5.2

The Board of Governors of The Florida Bar hereby gives notice of filing with the Supreme Court of Florida, on or about September 15, 2013 a petition to amend the Rules Regulating The Florida Bar. The full text of the proposed amendments is printed below. A copy of this submission may be requested by contacting Elizabeth Clark Tarbert, by email to: eto@flabar.org, by regular U.S. mail to: The Florida Bar, 651 East Jefferson St., Tallahassee 32399-2300 or by calling (850) 561-5780. Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition. Comments should be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.


RULES REGULATING THE FLORIDA BAR

CHAPTER 3 RULES OF DISCIPLINE
SUBCHAPTER 3-5 TYPES OF DISCIPLINE
RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM PROBATION OR INTERIM PLACEMENT ON THE INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT

(a) Petition for Emergency Suspension.


    (1) Great Public Harm. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that an attorneya lawyer appears to be causing great public harm, the Supreme Court of Florida may issue an order suspending the said attorneylawyer on an emergency basis.


    (2) Discipline by Foreign Jurisdiction. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by a certified copy of an order of a foreign disciplinary jurisdiction suspending or disbarring an attorneya lawyer from the practice of law, the Supreme Court of Florida may issue an order suspending the attorneylawyer on an emergency basis. See subdivision (l) of rule 3-7.2.


    A petition for emergency suspension shallwill also constitute a formal complaint. The respondent shallwill have 20 days after docketing by the Supreme Court of Florida of its order granting the bar’s petition for emergency suspension in which to file an answer and any affirmative defenses to the bar’s petition.


    (b) Petition for Interim Probation or Interim Placement on the Inactive List for Incapacity Not Related to Misconduct. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that conditions or restrictions on a lawyer’s privilege to practice law in Florida are necessary for protection of the public, the Supreme Court of Florida may issue an order placing said lawyer on interim probation, the conditions of which shall be as provided in rule 3-5.1(c) ); or placing the lawyer on the inactive list for incapacity not related to misconduct as provided in rule 3-7.13. The Supreme Court of Florida may issue an order placing a lawyer on interim probation, under the conditions provided in subdivision (c) of rule 3-5.1 or placing the lawyer on the inactive list for incapacity not related to misconduct as provided in rule 3-7.13. Such order may be issued upon petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that conditions or restrictions on a lawyer’s privilege to practice law in Florida are necessary for protection of the public. This petition shallwill also constitute the formal complaint. The respondent shallwill have 20 days after docketing by the Supreme Court of Florida of its order granting the bar’s petition for interim probation in which to file an answer and any affirmative defenses to the bar’s petition.


    (c) Trust Accounts. Any order of emergency suspension or probation that restricts the attorney in maintaining a trust account shall, whenwill be served on the respondent and any bank or other financial institution maintaining an account against which said attorneythe respondent may make withdrawals,. The order will serve as an injunction to prevent saidthe bank or financial institution from making further payment from suchthe trust account or accounts on any obligation except in accordance with restrictions imposed by the court through subsequent orders issued by a court-appointed referee. Bar counsel will serve a copy of the Supreme Court of Florida’s order freezing a lawyer’s trust account via first class mail on the bank(s) in which the respondent’s trust account is held.


    (1) The court’s order appointing a referee under this rule may authorize the referee to determine entitlement to funds in the frozen trust account. Any client or third party claiming to be entitled to funds in the frozen trust account must file a petition requesting release of frozen trust account funds with the referee appointed in the case, accompanied by proof of entitlement to the funds.


    (2) Bar counsel and bar auditors will provide information to the appointed referee from bar audits and other existing information regarding persons claiming ownership of frozen trust account funds. The bar will notify persons known to bar staff in writing via regular first class mail of their possible interest in funds contained in the frozen trust account. The notices will include a copy of the form of a petition requesting release of frozen trust account funds, to be filed with the referee and instructions for completing the form. The bar will publish, in the local county or city newspaper published where the lawyer practiced before suspension, a notice informing the public that the lawyer’s trust account has been frozen and those persons with claims on the funds should contact listed Bar counsel within 30 days after publication whenever possible.


    (A) If there are no responses to the notices mailed and published by the bar within 90 days from the date of the notice or if the amount in the frozen trust account is over $100,000, a receiver may be appointed by the referee to determine the person rightfully entitled to the frozen trust funds. The receiver will be paid from the corpus of the trust funds unless the referee orders otherwise.


    (B) In all other instances, a referee shall determine who is entitled to funds in the frozen trust account, unless the amount in the frozen trust account is $5,000 or less and no persons with potential entitlement to frozen trust account funds respond to the bar’s mailed or published notices within 90 days from the date of the notice. In such event, the funds will be unfrozen.


    (d) Referee Review of Frozen Trust Account Petitions. The referee will determine when and how to pay the claim of any person entitled to funds in the frozen trust account after reviewing the bar’s audit report, the lawyer’s trust account records, the petitions filed or the receiver’s recommendations. If the bar’s audit report or other reliable evidence shows that funds have been stolen or misappropriated from the lawyer’s trust account, then the referee may hold a hearing. Subchapter 3-6 will not apply to a referee hearing under this rule. No pleadings will be filed, only petitions requesting release of frozen trust account funds. The parties to this referee proceeding will be those persons filing a petition requesting release of frozen trust account funds. The bar will not be a party to the proceeding. The referee’s order will be the final order in the matter unless one of the parties petitions for review of the referee’s order to the Supreme Court of Florida. The sole issue before the referee will be determination of ownership of the frozen trust account funds. The referee will determine the percentage of monies missing from the respondent’s trust account and the amounts owing to those petitioners requesting release of frozen trust account funds. A pro rata distribution is the method of distribution when there are insufficient funds in the account to pay all claims in full. The referee’s decision is subject only to direct petition for review of the referee’s final order by a party claiming an ownership interest in the frozen trust funds. The petition for review must be filed within 60 days of the referee’s final order. The schedule for filing of briefs in the appellate process will be as set forth in subchapter 3-7 of these rules.


    (e) Separate Funds in Frozen Trust Accounts. The referee will order return of any separate funds to their rightful owner(s) in full upon their filing a petition requesting release of frozen trust account funds with proof of entitlement to the funds. Separate funds are monies deposited into the respondent’s trust account after the misappropriation, which are not affected by the misappropriation, and funds that have been placed into a separate segregated individual trust account under the individual client’s tax identification number.


    (df) New Cases and Existing Clients. Any order of emergency suspension issued under this rule shallwill immediately preclude the attorney from accepting any new cases and unless otherwise ordered permit the attorney to continue to represent existing clients for only the first 30 days after issuance of suchan emergency order. Any fees paid to the suspended attorney during the 30-day period shallwill be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court.


    (eg) Motions for Dissolution. The lawyer may move at any time for dissolution or amendment of an emergency order by motion filed with the Supreme Court of Florida, a copy of which will be served on bar counsel. SuchThe motion shallwill not stay any other proceedings and applicable time limitations in the case and, unless the motion fails to state good cause or is procedurally barred as an invalid successive motion, shallwill immediately be assigned to a referee designated by the chief justice. The filing of suchthe motion shallwill not stay the operation of an order of emergency suspension or interim probation entered under this rule.


    (fh) Appointment of Referee. UpoOn entry of an order of suspension or interim probation, as provided above, the Supreme Court of Florida shallwill promptly appoint or direct the appointment of a referee. On determination that funds have been misappropriated from a lawyer’s trust account as provided above, the Supreme Court of Florida will promptly appoint or direct the appointment of a referee.


    (gi) Hearing on Petition to Terminate or Modify Suspension. The referee shallwill hear a motion to terminate or modify a suspension or interim probation imposed under this rule within 7 days of assignment and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing. The referee shallwill recommend dissolution or amendment, whichever is appropriate, to the extent that bar counsel cannot demonstrate a likelihood of prevailing on the merits on any element of the underlying rule violations.


    (hj) Successive Motions Prohibited. Successive motions for dissolution shallwill be summarily dismissed by the Supreme Court of Florida to the extent that they raise issues that were or with due diligence could have been raised in a prior motion.


    (ik) Review by the Supreme Court of Florida. UpoOn receipt of the referee's recommended order on the motion for dissolution or amendment, the Supreme Court of Florida shallwill review and act upon the referee's findings and recommendations. regarding emergency suspensions and interim probations. This subdivision does not apply to a referee’s final order to determine ownership of funds in frozen trust accounts. These final orders of referee are reviewable by the Supreme Court of Florida only if a party timely files a petition for review pursuant to this rule. Briefing schedules following the petition for review will be as set forth in subchapter 3-7 of these rules.


    (jl) Hearings on Issues Raised in Petitions for Emergency Suspension or Interim Probation and Sanctions. Once the Supreme Court of Florida has granted a petition for emergency suspension or interim probation as set forth in this rule, the referee appointed by the court shallwill hear the matter in the same manner as provided in rule 3-7.6, except that the referee shallwill hear the matter after the lawyer charged shall havehas answered the charges in the petition for emergency suspension or interim probation or when the time has expired for filing an answer. The referee shallwill issue a final report and recommendation within 90 days of appointment. If the time limit specified in this subdivision is not met, that portion of an emergency order imposing a suspension or interim probation shallwill be automatically dissolved, except upon order of the Supreme Court of Florida, provided that any other appropriate disciplinary action on the underlying conduct still may be taken.


    (km) Proceedings in the Supreme Court of Florida. Consideration of the referee's report and recommendation shallregarding emergency suspension and interim probation will be expedited in the Supreme Court of Florida. If oral argument is granted, the chief justice shallwill schedule oral argument as soon as practicable.

    (ln) Waiver of Time Limits. The respondent may at any time waive the time requirements set forth in this rule by written request made to and approved by the referee assigned to hear the matter.

[Revised: 02-13-2014]