Updated August 2004

This Handbook is prepared by The Media & Communications Law Committee of The Florida Bar, and the individual authors and Bar staff who have donated their expertise and time so generously. Included here is information about The Bar's disciplinary procedures.

FLORIDA BAR ATTORNEY DISCIPLINE

The Florida Bar has administered a disciplinary program for the protection of the public, the bar and the integrity of the courts since 1955, expending greater amounts of money in each succeeding year for its operation. For the 2004-05 fiscal year, the discipline operating budget totaled some $10 million with 43.7% of each bar member's $265 membership fees going toward lawyer regulation.

With disciplinary staff in Miami, Ft. Lauderdale, Orlando, Tampa and Tallahassee, The Florida Bar currently receives over 8,800 complaints about Florida attorneys each year. This chapter is designed to clarify the profession's disciplinary program for the nonlawyer.

The rules by which Florida's 74,794 (as of July 1, 2004) attorneys must abide are set forth in the Rules Regulating The Florida Bar, as adopted by the Supreme Court of Florida. The rules serve as the primary basis for disciplinary action when an attorney's conduct falls below the required minimum standards. They define the type of ethical conduct that the public has a right to expect from attorneys.

While approximately 95 percent of the complaints made about attorneys normally reveal no unethical conduct, The Florida Bar reviews each case. Most of the investigation is accomplished by the more than 700 volunteer members (a third of whom are members of the public) serving on 80 circuit grievance committees. If investigation reveals evidence of wrongdoing, the matter is sent to a referee for trial. The referees are selected from trial judges by the chief judge of each circuit under the authority of the chief justice of the Supreme Court of Florida. Staff attorneys working for The Florida Bar serve as bar counsel in most cases.

The disciplinary staff of The Florida Bar consists of 31 attorneys, 10 full-time legal assistants, 26 full-time legal secretaries, 25 part-time investigators, 5 full-time auditors, 5 full-time office managers, 12 full-time clerical staff members, and 3 part-time clerical staff members.

The predecessor of the Rules Regulating The Florida Bar, the Integration Rule, was first adopted by the Supreme Court of Florida in 1950. The Rules Regulating The Florida Bar establish the processes by which the Supreme Court of Florida and state circuit and appellate courts impose discipline on errant attorneys. These rules are under continuous review by the Supreme Court and the Board of Governors of The Florida Bar.

Several disciplinary measures may be imposed against errant attorneys. They are set forth below, ranked in order of their general severity:

Disbarment (2003-04: 43 ordered)

Disbarment is a revocation of an attorney's license to practice law and terminates the attorney's membership in the bar. A former attorney who is disbarred may be admitted again only upon full compliance with rules and regulations governing admissions to The Florida Bar. In other words, the attorney must apply to the Florida Board of Bar Examiners for readmission. Passage of the bar exam is required before the attorney can resume practice. Disbarments after January 1, 1987, are generally for a minimum of five years.

Disciplinary Resignations (2003-04: 20 ordered)

Resignation without leave to reapply results in an attorney's permanent loss of membership in The Florida Bar and the right to practice law in this state. This disciplinary action by the Supreme Court is more severe than disbarment, which allows an individual to seek readmission to the bar at a later date upon compliance with court rules and successful completion of the bar examination. These resignations are considered disciplinary orders and require an admission of wrongdoing. Not all resignations are of a permanent nature. Those not of a permanent nature result in loss of bar membership for a minimum of three years. After the time provided in the order allowing resignation, the former member may reapply for bar membership through either the method stated in the order of resignation or through the method as stated in the rules at the time of the resignation, both of which usually require the member to complete the admission process administered by the Florida Board of Bar Examiners.

Suspension (2003-04: 121 ordered)

A suspension relieves an attorney of the attorney's privilege to practice law but does not terminate bar membership. Attorneys suspended for more than 90 days must prove their rehabilitation to a referee before the Supreme Court will reinstate them. Suspensions range in duration from as short a time as 1 day to as long as 3 years.

Probation (2003-04: 36 — may be administered alone or with other sanctions)

An attorney may be placed on probation for any length of time, usually ranging from six months to three years. Conditions of probation may include, but are not limited to, any or all of the following: participation in a drug/alcohol rehabilitation program, psychological counseling, review by and compliance with recommendations of The Florida Bar's Law Office Management Assistance Service (LOMAS), supervision of the attorney's work by another attorney, supervision of the attorney's trust account by a certified public accountant, submission of periodic reports to the Bar, restitution, participation in fee arbitration, passage of the Multistate Professional Responsibility Examination (MPRE), participation in a practice and professionalism enhancement program, and completion of a continuing legal education program. Probation generally accompanies other disciplinary sanctions.

Emergency Suspension/Probation (usually converted into "permanent" discipline; see figures above)

Any attorney who appears to be causing great public harm by misappropriating trust funds or otherwise may be placed immediately on probation or suspended from practicing law in the state by the Supreme Court. In virtually all instances when used, an "emergency suspension" freezes an attorney's trust accounts.

Public Reprimand (2003-04: 46 ordered)

A public reprimand usually stems from a referee trial and may be administered by the Supreme Court of Florida, the Board of Governors of The Florida Bar, the referee or the grievance committee. The order imposing the reprimand is published in the Southern Reporter, a compilation of appeals court actions from Florida and nearby states.

Admonishment (2003-04: 65 administered)

If an admonishment is recommended by a grievance committee, it must be agreed to by the lawyer, the Board of Governors and The Florida Bar. The Supreme Court of Florida may also order an admonishment after appropriate proceedings. Admonishments may be administered by letter or by appearance before the grievance committee, the referee or the Board of Governors.

Receipt of Complaints

The Rules Regulating The Florida Bar require receipt of a written complaint to avoid interpretative errors. Following preliminary review by bar staff attorneys, the complaints are usually sent to a circuit grievance committee for action. At least one grievance committee is appointed in each of Florida's 20 judicial circuits; several circuits have more than one where they encompass sizeable urban areas.

Grievance Committee Procedure

The function and procedures of the grievance committee are comparable to those of a grand jury. The committees investigate complaints to determine whether the facts show probable cause to believe misconduct occurred. If a complaint involves minor misconduct only, the committee may recommend that the errant attorney be admonished. If probable cause is found, a formal complaint will be filed by the Bar with the Supreme Court. Thereafter, the court will have a referee appointed and the matter proceeds to trial. In other words, the committees are to determine if reason exists to believe misconduct occurred, not guilt or innocence.

Confidentiality of Proceedings

The Supreme Court of Florida has removed most of the secrecy surrounding attorney discipline. Any time someone files a complaint against a member of The Florida Bar, that person (as well as any witnesses) is free to discuss the fact that the complaint has been filed and the status of the Bar's investigation. The Florida Bar is required initially to treat a complaint as confidential, but is not required to do so after cases have been closed, after a finding of minor misconduct has been made, or after a finding of probable cause has been made (the determination that a trial is necessary). Public record information and copies of the public record portion of all otherwise public disciplinary files are available to anyone upon reasonable request.

Trial by Referee

If a grievance committee finds probable cause to believe that misconduct has occurred, or if an accused attorney rejects a grievance committee's recommendation for an admonishment, the matter goes to trial before a referee (a trial judge). The trial is neither civil nor criminal in nature. Instead, it is a quasi-judicial, administrative proceeding. The attorney complained against is called the respondent. Staff attorneys prepare a complaint based on the grievance committee finding and represent The Florida Bar. The complaint is filed with the Supreme Court of Florida. The court commands the appointment of a referee and sends the complaint to that referee for trial.

After the trial, the referee prepares a report which includes: 1) findings of fact as to each item of misconduct with which the respondent is charged; 2) recommendations as to whether the respondent should be found guilty of misconduct that would justify disciplinary measures; 3) recommendations as to the disciplinary measures to be applied; 4) a statement of the past disciplinary record of the respondent; and 5) a statement about which party is to bear the costs incurred in the case.

The referee's report and record of the proceeding are then filed with the Supreme Court of Florida. Both parties have the right to appeal the referee's report. Whether or not an appeal is filed, the referee's order is not final until approved by the Supreme Court.

Other Disciplinary Proceedings

There are several categories of disciplinary proceedings which do not follow the described pattern. They include:

1. Circuit and district court disciplinary actions;
2. Actions for incapacity;
3. Suspensions for conviction of a felony;
4. Emergency suspension/probation; and
5. Disciplinary resignations.

Circuit Court Proceedings

This proceeding is initiated by a judge of a circuit court. The judge directs the state attorney to file a motion to discipline and the matter is assigned to a circuit judge for trial. The trial judge may recommend the customary disciplinary measures explained earlier. The respondent may appeal the matter to the Supreme Court. Generally, the Bar is not a party to these types of proceedings, which rarely are used.

Physical or Mental Incapacity
There are also provisions for the placement of an attorney who has been adjudicated mentally or physically incompetent on the list of inactive members. In practice, the Bar submits the matter to the supreme court and the court issues an order. The Bar also may seek the same relief for an attorney incapacitated but not adjudicated incompetent. This action is not disciplinary in nature, but is for the protection of the public and the lawyer in question.

Suspensions for Commission of a Felony
An attorney who has committed a felony will be suspended automatically from the practice of law following a determination (plea or verdict) or adjudication of guilt by any court.

Emergency Suspension/Probation
There is also a speedy procedure for the emergency suspension or probation of an attorney who is causing great public harm or misappropriating clients' funds. Both the circuit court proceeding and the routine bar proceeding may move too slowly to protect the public adequately. In such instances, the Bar submits evidence of these serious wrongdoings to the Supreme Court of Florida and usually requests an immediate suspension. These proceedings may be compared to injunctive relief.

Disciplinary Resignations
Attorneys file directly with the Supreme Court of Florida a petition for permission to resign from membership in The Florida Bar. When a petition for disciplinary resignation has been received by the Bar, the Board of Governors reviews the matter to determine if the public interest will be served by the member's resignation. Attorneys who resign after January 1, 1987 may be readmitted only upon application to the Florida Board of Bar Examiners. Attorneys who resigned from the Bar before January 1, 1987, while disciplinary charges are pending against them, can be reinstated to the Bar upon application to and approval by the Supreme Court. The approval process involves a public hearing before a referee in which the resigned attorney must prove rehabilitation. Unless the order of resignation states a longer period, three years must expire before a lawyer who has resigned "for cause" may seek readmission or reinstatement. An attorney who resigns without leave to seek readmission will be barred from applying for readmission.

Clients' Security Fund
To further protect and aid the public, The Florida Bar established a Clients' Security Fund in 1967. Financed by a portion of each bar member's annual membership fees, it makes monetary awards to people who suffer financial losses due to misappropriation of their funds by a Florida Bar member.

Education
The Bar constantly is keeping its members mindful of their responsibility to adhere to professional ethics through several continuing educational programs. Recently the Supreme Court of Florida also has approved continuing legal education requirements for the bar membership.

Staff counsel and The Florida Bar Professional Ethics Committee, upon request, provide ethics opinions to bar members to clarify specific situations. An attorney may request a written opinion if the attorney feels that a particular situation might cause an ethical problem. The committee reviews the facts of the situation and weighs them against the Rules of Professional Conduct and previous ethics opinions before issuing an advisory opinion that acts as a guide for the attorney.

These committee opinions are retained and published periodically in volumes which are sent to Florida Bar members for review and study. To ensure immediate distribution, committee opinions also are printed in the Bar's official publications, The Florida Bar Journal and The Florida Bar News. However, the Bar does not provide advisory ethics opinions on lawyer conduct to the general public. Questions of lawyer conduct should be directed through the appropriate disciplinary system where a proper investigation and determination can be made with appropriate due process safeguards for all concerned.