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April 1, 2013
Plan would expand the use of disciplinary diversion system

Panel looks into how clients may access funds in a frozen trust account

By Gary Blankenship
Senior Editor

Plans to allow greater use of the Bar’s disciplinary diversion system and to give clients the right to petition for return of their funds in the frozen trust accounts of emergency suspended attorneys have been presented to the Bar Board of Governors.

Disciplinary Procedure Chair Dennis Kainen offered suggested rule changes to accomplish those goals to the Board of Governors at its February 1 meeting. The board is scheduled to vote on the proposals at its April 19 meeting in Tampa.

Dennis Kainen The diversion program change came from a recommendation from the Hawkins Commission, which last year completed a review of the Bar’s grievance system. Under the current Bar rules, the commission noted, a lawyer may not enter a diversion program more than once every seven years, Kainen said.

However, the commission questioned whether seven years was an excessive period and noted the existence of several different types of diversion programs, such as ethics, trust accounting, and lawyer advertising. The commission recommended — and Kainen said the DPC agreed — that diversions should be allowed more frequently if the subsequent diversions were unrelated to earlier diversions. He also reported the committee recommended reducing a diversion limitation for a similar offense from once every seven years to once every five years.

The committee proposed amending Rule 3-5.3 to read: “A respondent who has been the subject of a prior diversion is not eligible for diversion for the same type of rule violation for a period of five years after the earlier diversion. However, a respondent who has been the subject of a prior diversion and then is alleged to have violated a completely different type of rule at least one year after the initial diversion, will be eligible for a practice and professionalism enhancement [diversion] program.”

Kainen reminded the board that the Supreme Court asked the Bar to find a procedure for allowing clients to access their funds that become frozen in trust accounts when lawyers are under emergency suspension.

The committee is proposing amendments to Rule 3-5.2 to allow clients to petition the referee [appointed to handle the grievance case] for the release of trust funds. The referee will be assisted by Bar counsel and Bar auditors in assessing the state of the trust funds, and known owners of funds in the account will be notified by the Bar. The public will be advised of the opportunity to claim any funds in the frozen trust account by publication in a newspaper of general circulation in the city or county in which the suspended attorney practiced law.

If the suspended lawyer has stolen money from the trust account, “The referee will determine the percentage of monies missing from the respondent’s trust account and the amounts owed 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 the claims in full.”

When separate funds can be identified in a segregated trust account for a specific client and those funds are intact, they will be returned in full to the client when the client files a petition with the referee and shows “proof of entitlement to the funds.”

The referee’s disbursement decisions can be appealed to the Supreme Court.

Kainen also discussed the DPC’s work on a new Standing Board Policy to provide guidelines for staff as to when discipline is appropriate for conditional Bar admittees and lawyers who, as part of their discipline, have contracts with Florida Lawyers Assistance, Inc., and fail to strictly comply with their contracts for drug and alcohol testing, which was one of the Hawkins Commission’s recommendations.

As part of this process, Kainen reported that FLA changed its monitoring and testing notification methods. Now, instead of requiring probationers and conditional admittees to call in or log in to a monitoring website each day, the affected lawyers are required only to monitor their emails and will only be deemed noncompliant with their contracts if they miss an actual testing date.

[Revised: 06-03-2014]