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October 1, 2017
Member petition to amend Bar rules concerning

frivolous proceedings

Thomas O. Wells, a member in good standing with The Florida Bar, gives notice of filing with the Supreme Court of Florida, on or about November 6, 2017, a petition to propose an amendment to Rule 3-4.3, Rule 3-5.3 and the Comment to Rule 4-3.1 to the Rules Regulating The Florida Bar. The proposed amendment is supported by not fewer than 50 members in good standing with The Florida Bar. The full text of the proposed amendment is printed below. A copy of this submission may be requested by contacting Thomas O. Wells, Wells & Wells, P.A., 901 Ponce de Leon Boulevard, Suite 200, Coral Gables, Florida 33134 or calling (305) 444-0016. Members who desire to comment on this proposed amendment may do so within 30 days of the filing of the above-referenced petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar and Thomas O. Wells, Esq. Rule 1-12.1 and Rule 3-7.15 of the Rules Regulating The Florida Bar govern these proceedings.

RULES REGULATING THE FLORIDA BAR
RULES SUBJECT TO PROPOSED AMENDMENT

1) Rule 3-4.3 – amend Rule 3-4.3 to add a second paragraph (or create a new Rule) concerning frivolous proceedings.

2) RULE 3-5.3 – amend Rule 3-5.3(b) and the Comment to reference frivolous proceedings.

3) COMMENT to RULE 4-3.1 – amend Comment to include a reference to the change to Rule 3-4.3 to inform and educate lawyers regarding the enforcement actions required of The Florida Bar.
PROPOSED AMENDMENT:

RULE 3-4.3 MISCONDUCT AND MINOR MISCONDUCT
The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

A final decision by the Florida Supreme Court, a Florida appellate court or a federal appellate court determining prosecution of a frivolous claim or defense, whether pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule that prohibits the prosecution or defense of a claim unless there is a basis in law or in fact for doing so that is not frivolous or there is a good faith argument for an extension, modification, or reversal of existing law or establishment of new law with a reasonable expectation of success, constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1. Unless one or more of the criteria in Rule 3-5.1(b)(1) are also present which prohibit a finding of minor misconduct absent unusual circumstances under Rule 3-5.1(b)(2), the referee, authorized agency or grievance committee hearing the misconduct matter may dispose of the matter by recommending admonishment or diversion under Rules 3-5.1 and 3-5.3. Any lawyer subject to such determination that he or she has prosecuted a frivolous claim or defense shall notify, in writing, the executive director of The Florida Bar, or his/her designee, within 10 days of the issuance of such decision together with an explanation of such decision and copy of the applicable document(s) that caused the court to issue such decision. Such lawyer shall also send a copy of such notice, explanation and applicable documents to the opposing attorney who was involved in the litigation to which such decision relates. The executive director of The Florida Bar shall report such notice to the appropriate bar counsel for docketing and assignment of a case number, and The Florida Bar shall prosecute the misconduct in accordance with the Rules considering the conclusive determination of a violation of Rule 4-3.1.

RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS

(a) Authority of Board. The board of governors is hereby authorized to establish practice and professionalism enhancement programs to which eligible disciplinary cases may be diverted as an alternative to disciplinary sanction.

(b) Types of Disciplinary Cases Eligible for Diversion. Disciplinary cases that otherwise would be disposed of by a finding of minor misconduct, including a conclusive determination of guilt of misconduct for prosecuting a frivolous claim or defense as provided in Rule 3-4.3, or by a finding of no probable cause with a letter of advice are eligible for diversion to practice and professionalism enhancement programs.
. . .
Comment

As to subdivision (c) of 3-5.3, a lawyer who agreed to attend the Advertising Workshop in 1 year would not be eligible for another such diversion for an advertising violation for a period of 5 years following the first diversion. However, that same lawyer would be eligible to attend the Advertising Workshop 1 year and a Trust Account Workshop for a completely different violation 1 year after the first diversion is completed. Likewise, a lawyer who agreed to attend a professionalism program for a Rule 4-3.1 violation is not eligible for diversion for a Rule 4-3.1 violation more often than once every 5 years.

RULE 4-3.1 MERITORIOUS CLAIMS AND CONTENTIONS
Amendment to Comment only:
Comment

The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification, or reversal of existing law.

The lawyer's obligations under this rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this rule.

Rule 3-4.3 provides that a final decision by the Florida Supreme Court, a Florida appellate court or a federal appellate court determining prosecution of a frivolous claim or defense, whether pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule that prohibits the prosecution or defense of a claim unless there is a basis in law or in fact for doing so that is not frivolous or there is a good faith argument for an extension, modification, or reversal of existing law or establishment of new law with a reasonable expectation of success, constitutes a conclusive determination of guilt of misconduct by the lawyer(s) for violation of Rule 4-3.1. A lawyer shall not use any funds held in his trust account for payment of any personal obligation imposed upon the lawyer or the lawyer’s law firm as to sanctions pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule.

[Revised: 12-09-2017]