400 Appeal Procedures
These rules are adopted pursuant to the authority of the Board of Governors of The Florida Bar (BOG) under Chapter 6, Rules Regulating The Florida Bar. Said chapter governs appeals to the appeals committee (AC) and BOG from all decisions of the board of legal specialization and education (BLSE) or a review panel (RP) arising under those programs.
4.02 APPEALS COMMITTEE OF THE BOARD OF GOVERNORS
The AC shall consist of 7 members appointed by the president of The Florida Bar, 1 of whom shall be designated as chair. At least 3 members shall be members of the BOG. The 7 members shall be appointed to staggered terms of office, and the appointees shall serve as follows: 2 members shall serve until June 30 next following their appointment; 2 members shall serve until the second June 30 following their appointment; and 3 members shall serve until the third June 30 following their appointment.
4.03 STANDARD OF REVIEW
(a) Scope of Review. Review by the AC shall be limited to whether the applicant was provided the procedural rights set forth in the 200 series of the BLSE policies and whether BLSE, or the review panel where applicable, applied the correct procedural standards for approval or denial as provided elsewhere in these policies and by pertinent Rules Regulating The Florida Bar.
(b) Standard of Review. The appellant shall have the burden of making a clear and convincing showing of arbitrary, capricious, or fraudulent denial of procedural rights or misapplication of BLSE policies or the Rules Regulating The Florida Bar.
4.04 COMMENCEMENT OF PROCEEDINGS
(a) Method. An appeal shall be commenced by filing a petition with the executive director of The Florida Bar, with a copy to the LSE director. A petition may be in the form of a letter.
(b) Time. An appeal shall be commenced within 45 days of notice of the decision of the BLSE or RP. Failure to file timely shall constitute acceptance of the decision without further right of appeal. Notice shall be by certified mail.
(c) Filing Fee. A fee of $500 payable to The Florida Bar shall be paid when the petition is filed.
(d) Contents of Petition. The petition shall contain a statement identifying the decision of the BLSE or RP by its date and nature; a statement by the petitioner of the relief sought. The petition shall contain statements of fact, argument, and citations to authority.
A response to the petition on behalf of the BLSE or RP shall be served on the petitioner within 45 days after the petition has been filed with the executive director. Service by mail shall be complete upon mailing. The response shall contain statements of fact, argument, citations to authority and supporting material.
4.06 RIGHT OF REPLY
(a) Time. The petitioner may file a reply within 20 days of receipt of the response.
(b) Other Pleadings. No further pleadings shall be permitted.
No evidence shall be presented on appeal that was not presented to the BLSE or RP.
4.08 COMPUTATION OF TIME
In computing any period of time prescribed or allowed by these Rules, the provision of Rule 9.420 of the Florida Appellate Rules and the definition of "legal holiday" provided by Rule 9.420(e) of those Rules, shall apply.
4.09 CONSIDERATION OF APPEAL
(a) Time of Meeting. The AC shall convene to consider the appeal at the next regularly scheduled meeting of the board held not less than 20 days after the time for filing a reply by the petitioner has expired or the filing of the reply, if a reply is filed. The chair of the AC shall designate the time and place of the meeting and shall furnish notice, by mail, of the meeting to the members of the AC, the petitioner, the BLSE, and the legal specialization and education director. The notice shall be mailed at least 15 days prior to the date at which the AC is to convene.
(b) Record. The executive director shall furnish to the AC a copy of the decision of the BLSE or the RP; a copy of the petition and all supporting material filed by the petitioner; a copy of the response; and a copy of the reply, if any. The record provided to the AC shall not include any individual peer review references provided to or considered by the area committee or BLSE for performance of peer review evaluation.
Oral Argument. The petitioner shall be entitled to present oral argument before the AC only if requested in the petition or reply. The BLSE shall have the right to present oral argument only if same is requested by the petitioner. If such request for oral argument is not made, the AC shall make its decision solely upon the basis of the petition, the response, supporting material, and the reply, if any.
Decision of the Appeals Committee. The decision of the AC shall be by a majority of those present and voting. Three members of the AC shall constitute a quorum. In the event of a tie, the decision shall be for the BLSE. The decision shall become the order of the BOG, unless reviewed and overruled by the BOG.
Notice of Decision. The AC shall give notice, by mail, to the petitioner and the BLSE of its decision within 30 days of the appeals committee meeting.
4.10 REVIEW BY BOARD OF GOVERNORS
(a) Request for Review. A request for BOG review of an AC decision must be filed with the executive director within 10 days' notice of the AC's decision and must clearly demonstrate that the AC misconstrued the rules or the issue on appeal has significant programmatical impact. Such request shall be briefly summarized and shall not be accompanied by any materials already contained in the record before the AC.
(b) Response. The appellee may file a brief response within 10 days of the date the request for review is filed with the executive director.
(c) Procedures. The BOG shall consider the request for review and response at its next regular meeting. Oral argument shall not be permitted. The decision of the BOG shall be by a majority of members voting, excluding the AC members who voted on the original decision.
(d) Denials of Review Requests. If the request for review is denied, the AC decision shall stand as the decision of the BOG.
(e) Grants of Review Requests. If the request for review is granted, the complete appellate record shall be transmitted to the BOG for consideration at its next regular meeting. If requested, oral argument shall be permitted. In determining whether to uphold or reverse the AC decision, the standard of review shall be clear and convincing error. The decision of the BOG shall be by a majority of members voting, including the AC members who voted on the original decision.
(f) Notice of Board Action. The executive director shall give notice of the BOG's decision to the appellant and appellee, by certified mail, within 20 days of the board meeting at which such decision was rendered.
(g) Ex Parte Communications. Because the appellate process is of a quasi-judicial nature, ex parte communications by anyone to members of the AC or BOG are prohibited.
4.11 APPEAL TO THE SUPREME COURT OF FLORIDA
An appeal to the Supreme Court of Florida of the BOG's decision may be taken by either the petitioner or the BLSE pursuant to Chapter 6, Rules Regulating The Florida Bar.