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February 1, 2014
The Bar’s procedure for investigating and prosecuting disciplinary complaints

By Brian D. Burgoon
Bar Disciplinary Review Committee Chair

There are a number of things that can get a lawyer in hot water with The Florida Bar’s Lawyer Regulation Department. While any violation of the rules of professional conduct could warrant a disciplinary complaint, some of the more common transgressions investigated by The Florida Bar include:

* Theft of client funds,

* Misrepresentation and other dishonest conduct,

* Failure to comply with trust accounting rules,

* Commission of a crime (in particular a felony),

* Failure to communicate with clients,

* Lack of diligence/competence,

* Conflicts of interest,

* Improper transactions with clients (for example, naming the lawyer as a beneficiary in a client’s will),

* Charging excessive fees,

* Unprofessional conduct with opposing counsel and disrespect to the judiciary.

Lately, there has been a strong push from lawyers, judges, Florida Bar leaders, and the Florida Supreme Court to take a more aggressive stance against professionalism- related complaints. If trends continue, I would expect to see the prosecution of these types of complaints to increase in the upcoming years.

Stage 1: Complaint Intake & Preliminary Investigation
The process starts when the Bar receives a complaint against a lawyer. Clients, opposing counsel, or judges may file complaints, or the Bar may discover potential misconduct through other means, such as media reports or notice of a bounced check from a lawyer’s bank.

Not all of the thousands of inquiries and complaints the Bar receives each year are prosecuted. After a complaint is submitted to the Bar, but before charges are filed, intake counsel conducts a preliminary investigation. If intake counsel determines that the allegations do not warrant discipline, then the case is closed immediately without further action against the attorney. However, if intake counsel determines that the facts alleged would constitute a violation warranting discipline, then counsel opens a file, notifies the accused attorney, and requests a response within 15 days. Over the past five years, an average of nearly 7,600 cases each year make it to this stage.

After receiving the lawyer’s response, intake counsel can close the file if the facts do not support going forward. However, if further investigation is warranted or if the lawyer fails to respond, then intake counsel will forward the case to the Bar’s branch office covering the judicial circuit where the lawyer practices. The Florida Bar has branch offices in Tallahassee, Tampa, Orlando, Ft. Lauderdale, and Miami.

Stage 2: Branch Investigation
Once the branch receives the case, it is assigned to Bar counsel who will conduct a factual analysis of the case. Bar counsel will close the case if disciplinary measures are not warranted. For relatively minor transgressions, Bar counsel can recommend diversion, in which case the grievance committee can divert the case to a practice and professionalism enhancement program in lieu of disciplinary sanctions. Diversionary measures can include requiring the respondent to complete ethics school, a trust and accounting workshop, a stress management workshop or an advertising workshop, enter into a contract with Law Office Management Assistance Service (LOMAS) for practice management assistance, or enter into a rehabilitative contract with Florida Lawyers Assistance, Inc., (FLA, Inc.). Diversion is not considered “discipline,” which would stay on the attorney’s permanent record.

Finally, if Bar counsel determines that there are sufficient grounds to go forward with prosecution, the complaint is forwarded to a grievance committee in the accused lawyer’s judicial circuit for additional investigation, and The Florida Bar becomes the complainant/prosecutor in the case.

Stage 3: Grievance Committee Process
There are 81 local grievance committees across Florida – at least one in each of the state’s 20 judicial circuits. Each circuit’s grievance committees are comprised of lawyers and public members living in that circuit. The grievance committees serve like a grand jury, and are charged with further factual investigation and determining whether there is probable cause that a disciplinary violation occurred.

The grievance committee chair will assign the case to one of the committee members, who will serve as the case’s investigating member. After interviewing witnesses and reviewing evidence, the investigating member will make a recommendation to the grievance committee.

Following a hearing, the grievance committee has a number of options. The grievance committee can:

* 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; and

* Find probable cause, which sends the case to trial.

Grievance committee investigations can take from three to six months, and in some cases even longer, depending on the complexity of the case.

Stage 4: Trial
Following a probable cause finding by the grievance committee, Bar counsel will draft a formal complaint and file it with the Florida Supreme Court. The Supreme Court then appoints a circuit or county judge in the respondent’s circuit to serve as the referee for the case.

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 report of referee is filed with the Supreme Court, it is reviewed by the Board of Governors. The Board of Governors and the respondent each have 60 days to appeal a referee’s decision.

Stage 5: Board of Governors Review
The Board of Governors oversees the prosecution and appeals of disciplinary cases at all stages in the process. The Board of Governors can overturn a decision to close a disciplinary file, reviews grievance committee actions, and reviews 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. In addition, 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.

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 meets before each of the six Board of Governors meetings each year 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 between any of the designated reviewer, Bar Counsel and the referee. The DRC typically reviews between 25 to 40 discipline cases each meeting, and the agenda often contains more than 500 pages of materials for review by the members. The DRC makes recommendations to the Board of Governors, which then votes as a whole on the DRC’s recommendations.

Board Review of Grievance Committee Decisions:
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 the board can order diversion.

Board Review of Consent Judgments, Disbarments on Consent, and Disciplinary Revocations:
After probable cause is found but prior to trial, Bar counsel and the respondent can enter into a proposed consent judgment (like a plea agreement) to resolve the discipline, 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. Proposed consent judgments are reviewed by the Board of Governors, which can accept or reject a consent judgment, or can condition its acceptance on imposing additional conditions. Consent judgments approved by the Board of Governors are tendered to the referee, and if approved by the referee, filed with the Supreme Court for consideration. If a consent judgment is not accepted by both the board and the referee, then the case proceeds to trial.

Board Review of Reports of Referee:
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.

Final Stage: Florida Supreme Court Review
The Florida Supreme Court is the ultimate and final authority on lawyer discipline matters. The Supreme Court reviews consent judgments and referee decisions from disciplinary trials or reinstatement petitions. If either the Board of Governors or the respondent petition for review of a report of referee, then the matter is briefed. If neither the board nor the respondent petitions for review of the report of referee, then the Supreme Court will conduct its review of the report of referee without briefs unless the court requests briefing.

The Supreme Court can approve or disapprove any aspect of the report of referee, including findings of guilt or innocence or recommendation sanctions. The disciplinary sanctions ordered by the Supreme Court may be harsher or more lenient than the discipline recommended by the referee. The Supreme Court’s decision on guilt or innocence and the ultimate sanction imposed, if any, is final.

The Supreme Court’s orders are enforced through the court’s contempt powers. For example, if a lawyer is accused of practicing law while suspended, the suspended lawyer will be brought before the court on a petition for contempt and new discipline may be imposed. Such discipline is typically increasingly harsh. Thus, a lawyer who is suspended, if found guilty of contempt, may be disbarred. A disbarred lawyer who is caught practicing law may be permanently disbarred and/or face additional contempt sanctions.

Conclusion
While every jurisdiction has its own process and procedures for regulating its attorneys, The Florida Bar’s disciplinary system has many participants and levels of review. Florida Bar attorneys and professional staff, county and circuit court judges, Supreme Court justices, and a number of volunteers — from the lawyers and public members who serve on the grievance committees to the members of the DRC and the Board of Governors — spend a substantial amount of time dedicated to ensuring fairness and integrity in the process for the profession, the public, and the respondent.

Special thanks to Ken Marvin, retired director of Lawyer Regulation, and Arne Vanstrum, associate director of Lawyer Regulation, for their contributions to this article.

Brian D. Burgoon has served as an out-of-state member of The Florida Bar Board of Governors since 2000, is current chair of the Disciplinary Review Committee, and serves on The Florida Bar Executive Committee. He also served as a member of the statewide Hawkins Commission on Review of the Discipline System. He practices business litigation, civil litigation, and personal injury with The Burgoon Law Firm, in Atlanta. He can be reached at 404-260-5147 or burgoon@burgoonlaw.com.

[Revised: 04-23-2014]