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July 1, 2013
Changes encourage diversion, will make it easier to get at trust funds

Lawyers will be able to make more frequent use of grievance system diversion programs and clients will have an easier time retrieving their money from the trust funds of emergency suspended lawyers under Bar rule amendments approved by the Board of Governors.

The board, at its May 31 meeting, unanimously approved the recommendation of the Disciplinary Procedure Committee on the amendment to rules 3-5.3 and 3-5.2.

Jay Manuel DPC Vice Chair Jay Manuel noted that, under the current rule, a Bar member can only use a diversion once every seven years. He said that the Hawkins Commission, which reviewed the grievance process, recommended that lawyers be allowed to make more frequent use of diversions if the new diversion was in an area different from a previous diversion.

Manuel said the committee proposed allowing one diversion a year, as long as it was in a different area from previous diversions. For example, a lawyer who received a diversion for a minor trust accounting problem could receive a diversion a year later for an advertising issue. Lawyers could only receive a diversion to the same program once every five years under the proposed rule.

The Bar has diversion programs in ethics, trust accounting, professionalism, advertising, the Bar’s Law Office Management Assistance Service, and stress management, and lawyers may be diverted to Florida Lawyers Legal Assistance, Inc.

The board unanimously approved the recommendation, which now goes to the Supreme Court.

On the emergency suspension issue, the Supreme Court asked the Bar to recommend a procedure to allow clients to have access to funds in the trust accounts of emergency suspended lawyers.

Manuel said the proposed new rule will allow a referee to be appointed to handle claims against a trust account, with clients receiving notice when a trust account has been frozen. A receiver can be used in cases of large trust accounts with a large number of clients, he said.

In cases where there are shortages in the trust account, funds will be distributed pro rata among the clients, he said.

The board unanimously approved that proposal, which will also go to the court.

On another matter, Manuel presented to the board a proposed amendment for Rule 3-5.1 to clarify “indefinite” suspension. Manuel said there are no indefinite suspensions under Bar rules, except in cases when a lawyer is suspended for failure to comply with a court order (which includes failing to comply with a grievance committee subpoena or failing to respond to a Bar inquiry that results in a court-ordered suspension for noncompliance) in which case the suspension lasts until the lawyer complies. He said the change, which will return to the board for a vote at its July meeting, clarifies that distinction.

[Revised: 12-07-2016]