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March 15, 2016
How the Bar investigates disciplinary complaints

By Mark D. Killian
Managing Editor

While the Bar’s Attorney-Client Assistance Program in Tallahassee handles the initial processing of most complaints against lawyers, once an investigation determines the alleged misconduct may constitute a violation of Bar rules, the case is sent to one of the Bar’s five branch offices for further investigation.

Discipline stats “We go out of our way to make sure due process is observed,” said Adria E. Quintela, director of the Lawyer Regulation Department, adding there are 32 lawyers working in the Bar’s branch offices in Tallahassee, Tampa, Orlando, Ft. Lauderdale, and Miami.

Once the complaint is received at the branch office, it is assigned to a Bar counsel, who will conduct a factual analysis of the case and shepherd that file through the process until its final disposition, Quintela said.

“That Bar counsel will conduct an independent investigation of the alleged misconduct,” said Quintela, adding the Bar’s lawyer will be assisted in that process by staff investigators or auditors.

“The investigators are typically former law enforcement officers and former FBI agents, and they work in conjunction with Bar counsel to investigate the case. They obtain whatever documents are needed and are available to interview witnesses. If it involves any kind of trust accounting issue, each branch has an auditor to examine any financial documents that may be involved.”

Quintela said if Bar counsel determines no rules have been violated, the process can end right there.

“If Bar counsel closes a file, Bar counsel writes a closeout letter and informs both parties that the matter has been closed and why,” she said.

However, if Bar counsel finds sufficient grounds to go forward with the investigation, the complaint is forwarded to one of the Bar’s 81 local circuit grievance committees for additional investigation. The grievance panels are comprised of lawyers and public members and there are typically nine members on each committee appointed by the Board of Governors members in those circuits.

The grievance committees meet monthly and further investigate the files prepared by the branch counsel to determine if there is a basis for the Bar to move forward in its investigation. Quintela said the grievance committee meetings are confidential in nature, and the panels conduct “paper hearings,” which put the respondents on notice of the conduct the Bar is investigating and notes the rules the respondent potentially could be charged with violating.

“The respondents have an opportunity to reply to the committee in writing and, at times, are invited to appear before the grievance committees,” Quintela said.

Typically, it is a member of the grievance committee who will serve as an investigating member on the case. After interviewing witnesses and reviewing evidence, the investigating member makes a recommendation to the grievance committee. Following a hearing, the grievance committee has a number of options: Find no probable cause, or no probable cause with a letter of advice, which ends the case with no discipline; recommend mediation or arbitration of a fee dispute; issue a finding of minor misconduct, which includes an admonishment; recommend diversion to a practice and professionalism enhancement program; recommend deferral of grievance committee review until the conclusion of a parallel criminal or civil case against the accused; or find probable cause, which sends the case to trial.

Quintela said investigations vary in how long they take depending on the complexity of the case, the number of documents to be reviewed, and a number of other factors.

If minor transgressions are found, the grievance committee can divert the matter to a practice and professionalism enhancement program in lieu of disciplinary sanctions.

Diversionary measures can require the errant lawyer to complete ethics school, a trust and accounting workshop, a stress management workshop, or an advertising workshop, or to enter into a contract for practice management assistance or a rehabilitative contract with Florida Lawyers Assistance, Inc. (FLA, Inc.).

Quintela said participation in a diversion program is not considered “discipline,” which would stay on the attorney’s permanent record. If the respondent completes one or more of the diversion programs successfully, “it will not affect their ability to practice,” she said.

If a grievance committee finds probable cause, Bar counsel drafts a formal complaint and files it with the Florida Supreme Court, which will appoint a circuit or county judge to serve as the referee for the case, Quintela said.

For cases not disposed of pretrial (such as by motion to dismiss or motion for summary judgment), the referee conducts a trial of the case and hears witnesses and receives other evidence. The referee then issues a report that contains factual and legal findings, a recommendation of guilt or innocence, and a recommendation of the appropriate sanctions. The referee’s recommendations are not final until approved by the Supreme Court. Once the referee’s report is filed with the Supreme Court, it is reviewed by the Board of Governors. The board and the respondent each have 60 days to appeal a referee’s decision.

Quintela said it is important to note that hearsay is permissible in Bar grievance proceedings.

“People don’t really know that and it really makes a big difference in our cases,” she said.

Quintela said the Board of Governors oversees the prosecution and appeals of disciplinary cases at all stages in the process. The board can overturn a decision to close a disciplinary file and reviews grievance committee actions and reports of referees from disciplinary trials and petitions for reinstatement and decides whether to appeal to the Supreme Court.

The initial review occurs with the designated reviewer — the Board of Governors member from the respondent’s circuit assigned to review that specific case through all stages. The designated reviewer can refer matters to the Board of Governors for review. Even if the designated reviewer agrees with an underlying decision, any single Board of Governors member can request review and debate of a disciplinary case by the board.

Quintela said when review of any disciplinary matter by the Board of Governors is requested, the review first occurs in the Disciplinary Review Committee (DRC), which, with 26 members, is the largest committee of the Board of Governors. The DRC gathers before each of the Board of Governors meetings to review all the disciplinary cases, and to debate those cases referred by designated reviewers or other board members, as well as cases where there is a disagreement among any of the designated reviewers, Bar counsel, and the referee. The DRC makes recommendations to the Board of Governors, which then votes on the DRC’s recommendations.

After the grievance committee makes its decision on probable cause, minor misconduct, or referral to diversion, the findings are forwarded to the designated reviewer. If the designated reviewer disagrees with the grievance committee’s findings, the designated reviewer can send the matter back to the grievance committee for another review or can request review by the Board of Governors. The board can overturn a grievance committee’s findings and enter a finding of probable cause, no probable cause or minor misconduct, or order diversion.

At any time during the proceedings, the Bar and the respondent can enter into a proposed consent judgment to resolve the matter, including disbarments on consent and disciplinary revocations (the voluntary surrender of a license while disciplinary proceedings are pending, which is tantamount to disbarment). The consent judgment will include a guilty plea, proposed sanctions, and other requirements. If a consent judgment is not accepted by both the board and the referee, the case proceeds to trial.

Referees’ decisions following trial, pretrial dispositive orders (such as dismissal or summary judgment), and recommendations regarding reinstatement of a suspended lawyer are reviewed by the Board of Governors. If the board disagrees with any aspect of the referee’s decision, including recommendations of guilt or innocence, recommended sanctions, or recommendations regarding reinstatement of a suspended lawyer, then the Board of Governors can seek review by the Supreme Court.

Quintela said the best way to avoid Bar complaints is to communicate and be honest with your clients.

“If you file something, tell them. If you didn’t file something, missed a deadline, tell them,” Quintela said. “We discipline a number of people who begin with a simple innocent mistake and then compound it by lying to the client, by lying to the judge, and by lying to us. Before you know it, they end up with a higher discipline when it could have been addressed through diversion.”

Quintela said it’s the Bar’s job to get to the bottom of the complaint and ascertain if the lawyer did anything wrong.

“A lot of times they really didn’t do anything wrong. It was a simple misunderstanding between the lawyer and client,” Quintela said.

Parts of this story were gleaned from past News columns written by Brian D. Burgoon of Atlanta, an out-of-state member of the Board of Governors and past chair of the DRC.

[Revised: 01-18-2017]