By Gary Blankenship
A Coral Gables attorney is filing a member-backed petition with the Supreme Court to amend Bar rules to provide more certain discipline when Bar members are found by appellate courts to have engaged in frivolous litigation actions.
An official notice of the proposed rule was in the October 1 News and Thomas O. Wells said he intends to file the petition, which has been signed by 55 Bar members, with the Supreme Court around November 6.
Bar rules allow members to directly propose amendments to Bar rules if they file with the Supreme Court a petition signed by 50 Bar members.
Wells said he was motivated by a case he was involved in where opposing counsel engaged in egregious frivolous actions, was sanctioned by the Third District Court of Appeal for actions taken at both the trial court and on appeal, and then saw a grievance he filed against the attorney dismissed by the local grievance committee.
“When you look from grievance committee to grievance committee, there’s no regularity in enforcing Bar Rule 4-3.1 [which prohibits frivolous actions and arguments]. . . . There’s no [grievance] diversion, there’s no letter of advice,” Wells said. “We should have some consistency when an appellate court determines frivolous actions.”
Under Bar rules, it’s necessary to “reprove” that an action was frivolous and he said once an appellate panel has decided the issue it should be accepted in a grievance without having to relitigate the issue.
Wells said he researched 46 cases where an appellate ruling or contractual action found that a lawyer violated F.S. §57.105, which prohibits frivolous actions, and discovered only five resulted in Bar disciplinary action.
The petition uses appellate decisions as the basis for the grievance because that means a three-judge panel will have made a determination about the frivolous claim, Wells said, not an individual judge who might have a grudge against the lawyer.
His proposal would amend Bar Rule 3-4.3, which addresses misconduct or minor misconduct, by adding a section on frivolous actions. That would provide if any Florida or federal appellate court determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “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.”
The amendment provides that unless there are aggravating circumstances, the referee or grievance committee considering the complaint can settle the matter with a letter of admonishment or referring the lawyer to the Bar’s grievance diversion program (attorneys would not be eligible for such a diversion more than once every five years under the proposal).
Attorneys who get an appellate ruling finding they have violated the rules or state law on frivolous actions would be required to notify the Bar within 10 days with copies to opposing counsel. Bar counsel would docket the case “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.”
Wells is also proposing amending the comment to Rule 4-3.1 to note the amendment to Rule 3-4.3. The comment also provides that, “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.”
Because Wells’ proposal covers both Chapters 3 and 4 and Bar rules, both the Board of Governors’ Disciplinary Procedure Committee and the Rules Committee will review parts of his petition. DPC Chair Bruce Robinson was expected to make a brief report to the board at its October 6 meeting (after this News went to press) and the committee will have a special meeting to discuss it later in the month or early in November. The following board meeting is December 8.
If Wells follows through with his petition, it will be only the fifth such member-generated rule proposal in more than 25 years. That includes a petition in 1992 that led to the rule requiring lawyers to report their annual pro bono work, a denied petition in 1994 to allow lawyers to loan money to their clients, and two petitions in the past five years. One of those would have allowed the Board of Governors to raise annual membership fees by up to $100 with the extra money going to legal aid (which was denied by the court) and the other was filed to amend Bar rules to allow admission of non-residents. The latter became moot when the Legislature addressed the issue, which involved the admission of José Manuel Godinez-Samperio, who had been denied admission because he was not a citizen, having been brought to the country as a child by his parents.