|The Florida Bar
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;
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.