Attorney Discipline Road Map
From initial complaint to Supreme Court order, an overview of the process followed in a typical case to impose sanctions on a Florida Bar member.
Entrance Ramp/Process Begins
Attorney Consumer Assistance Program (ACAP) receives complaints from clients, opposing counsel, judges or others. If ACAP determines that allegations would constitute a violation of the Rules Regulating The Florida Bar, a file is opened and lawyer gets 15 days to respond.
- The Florida Bar’s Attorney Consumer Assistance Program (ACAP) provides assistance through a toll-free hotline (866-352-0707).
- ACAP opens more than 20,000 requests for assistance each year. Often, ACAP resolves attorney-client issues.
- Complaint: Clients, judges, opposing counsel and others may file complaints. The Bar also may learn of potential problems through media reports or other means.
- Intake counsel: Intake counsel conducts a preliminary investigation. If intake counsel determines that the allegations would not constitute a violation warranting discipline, the case is closed without further action. If intake counsel determines that the allegations would constitute a violation warranting discipline, intake counsel opens a file, notifies the accused lawyer and requests a response within 15 days. After receiving a response, intake counsel may close the file or refer it to one of The Florida Bar’s 5 branch offices for further investigation.
What ACAP can and cannot do:
- ACAP can suggest that a client first try to work things out with a lawyer.
- ACAP can ask a lawyer to provide the client with an update on the status of a case.
- ACAP cannot provide lawyer referrals. Potential clients should call a local bar association or The Florida Bar’s lawyer referral service.
- ACAP cannot recover money damages. Clients who have suffered a financial loss due to a lawyer’s theft of funds should contact The Florida Bar Clients’ Security Fund (800-342-8060, ext. 5812) to make a claim.
- The Florida Bar cannot intervene in fee disputes unless the fee is illegal, prohibited or clearly excessive. If a lawyer and client cannot agree on fees, they may agree to take the dispute to The Florida Bar’s Grievance Mediation and Fee Arbitration Program, which is free.
STOP: Allegations would not constitute a violation warranting discipline or do not support going forward. Case is closed.
If further investigation is warranted or lawyer does not respond, case is forwarded to one of the five branch offices of the Bar.
- If further investigation is warranted or if the lawyer fails to respond, intake counsel will forward the case to the Bar’s branch office that covers the judicial circuit where the lawyer practices. The Florida Bar has branch offices in Tallahassee, Tampa, Orlando, Fort Lauderdale and Miami. About one-third of cases investigated at ACAP are transferred to a branch office for further investigation.
- When referred to the branch office, the case is assigned to Bar counsel who conducts a further investigation.
- Bar counsel will close the case if disciplinary measures are not warranted.
- For minor violations, Bar counsel can recommend diversionary measures such as ethics school. Diversion is not considered “discipline” and is disposed of 1 year from the date of closure.
- If there are sufficient grounds to go forward, the case may be forwarded to a grievance committee in the accused lawyer’s judicial circuit.
STOP: Bar counsel closes the case after determining that discipline is not warranted.
Bar counsel refers case to grievance committee in lawyer’s judicial circuit (made up of at least one-third nonlawyers) for additional investigation. Committee assigns a member to investigate. After a hearing, committee determines whether there is probable cause.
- Grievance committees are made up of volunteers from the community, at least one-third of whom are nonlawyers. Each of Florida’s 20 judicial circuits has at least one grievance committee.
- If Bar counsel determines that allegations warrant further proceedings, the discipline case may be referred to a grievance committee.
- The grievance committee chair assigns the case to committee member, who serves as the investigating member. After interviewing witnesses and reviewing evidence, the investigating member makes a recommendation to the grievance committee.
- Like a grand jury, the grievance committee decides whether there is probable cause to believe a lawyer violated the Rules Regulating The Florida Bar and whether discipline is warranted.
- If the grievance committee takes testimony from the accused lawyer, the person who filed the original complaint may attend.
- Grievance committee investigations can take three to six months to complete. A grievance committee has several options:
- 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.
- Recommend diversion to a practice and professionalism enhancement program.
- Recommend deferral of grievance committee review until conclusion of a parallel criminal or civil case.
- Find probable cause.
- If the grievance committee finds probable cause to believe that discipline is warranted, Bar counsel will file a formal complaint against the lawyer with the Supreme Court of Florida.
- Most lawyer discipline cases are settled without a trial. However, the lawyer may contest the complaint. If that happens, case moves to the trial phase.
STOP: Grievance committee finds no probable cause, or issues a letter of advice or diversion. Case is closed.
Designated Reviewer/Board of Governors
A member of the Board of Governors, the designated reviewer, reviews grievance committee decision. BOG can review discipline cases at any point in the process.
- The Florida Bar’s Board of Governors (BOG) reviews grievance committee actions.
- Designated reviewer – a BOG member who is assigned to review discipline cases and who can refer matters to the BOG for review. Any BOG member also can request review and debate of a case.
- If review by the the BOG is requested, it first occurs in the Disciplinary Review Committee (DRC). The DRC meets before each of the 6 BOG meetings each year to review disciplinary cases. The DRC typically reviews 25 to 40 discipline cases each meeting.
- The DRC makes recommendations to the BOG, which votes as a whole on the DRC’s recommendations.
- BOG options before trial:
- Review of grievance committee decisions: If the grievance committee finds probable cause, the designated reviewer can request reconsideration or refer the case to the BOG discipline committee within 30 days. The BOG can overturn a grievance committee’s findings and enter a finding of probable cause, no probable cause or minor misconduct, or it can offer diversion.
- Review of consent judgments and disciplinary revocations: After probable cause is found but before trial, Bar counsel and the accused lawyer can enter into a proposed consent judgment for guilty plea and proposed sanctions. The BOG can accept or reject the consent judgment or condition its acceptance with additional conditions. Consent judgments approved by the BOG are filed with the Supreme Court. If a consent judgment is not accepted by the BOG, then the case proceeds to trial.
CHARGES FILED: If the grievance committee finds probable cause, charges are filed with Florida Supreme Court.
From the Rules Regulating The Florida Bar:
- 3-2.1(j) Probable Cause. A finding by an authorized agency that there is cause to believe that a member of The Florida Bar is guilty of misconduct justifying disciplinary action.
- 3-3.2 (b)(1) Finding of Probable Cause. A formal complaint may be filed if there has been a finding under these rules that probable cause exists to believe that the respondent is guilty of misconduct justifying disciplinary action.
- 3-7.4(g)(3) Vote. All findings of probable cause and recommendations of guilt of minor misconduct shall be made by affirmative vote of a majority of the committee members present, which majority must number at least 2 members. There shall be no required minimum number of lawyer members voting in order to satisfy the requirements of this rule. The number of committee members voting for or against the committee report shall be recorded. Minority reports may be filed. A lawyer grievance committee member may not vote on the disposition of any matter in which that member served as the investigating member of the committee.
TRIAL BY REFEREE: Florida Supreme Court appoints county or circuit judge to serve as referee. Referee hears witnesses, receives evidence and if recommending guilt, also recommends appropriate sanctions. Referee also reviews all consent judgments.
Trial By Referee
Florida Supreme Court appoints county or circuit judge to serve as referee. Referee hears witnesses, receives evidence and if recommending guilt, also recommends appropriate sanctions. Referee also reviews all consent judgments.
- Based on findings of the grievance committee, Bar counsel may file a formal complaint against the accused lawyer with the Florida Supreme Court.
- If the case is not disposed of pretrial via a consent judgment, the Supreme Court will issue an order that the chief judge appoint a circuit or county court judge as referee to hold a trial on the complaint.
- Referee takes testimony and receives other evidence.
- Referee issues a report with findings and, if recommending guilt, also recommends sanctions. The referee’s recommendations are not final until approved by Supreme Court.
REVIEW: Referee’s report is reviewed by designated reviewer and Bar’s Board of Governors. BOG and lawyer have 60 days to appeal referee’s decision.
After the referee’s report is filed with the Supreme Court, it is reviewed by the Board of Governors. The BOG and accused lawyer each have 60 days to appeal the referee’s decision.
- Referees’ decisions following trial and pretrial dispositive orders (such as dismissal or summary judgment) are reviewed by the BOG. If the BOG disagrees with any aspect of the referee’s decision, it can seek review by the Supreme Court.
- Like grievance committee actions, the referee’s report is first reviewed by the Disciplinary Review Committee before being presented to the BOG.
SUPREME COURT: Reviews report of the referee or consent judgment. Court can approve or disapprove any aspect, and its decision on guilt and a final discipline order is final.
The Florida Supreme Court is the final authority on lawyer discipline. The court’s decision on guilt and the ultimate sanction imposed are final.
- The Supreme Court reviews consent judgments and referee decisions from disciplinary trials. If neither the BOG nor the accused lawyer petitions for review of the referee’s report, then the court will conduct its review of the report (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 recommended sanctions.
ENFORCEMENT: Discipline order is enforced by the Supreme Court’s contempt powers.
The Florida Supreme Court’s orders are enforced through the court’s contempt powers.
- Example: A lawyer accused of practicing law while suspended will be brought before the court on a petition for contempt, and new discipline may be imposed. A disbarred lawyer who is caught practicing law may be permanently disbarred and face additional contempt sanctions.