Florida Bar Journal

Florida’s Lawyer Discipline System: What Every Attorney Needs to Know

Illustration by Barbara Kelley

The Florida Bar performs a number of important roles for the legal profession, and arguably none is more important than lawyer regulation and discipline. Fortunately, most lawyers will never have any interaction with the disciplinary system during their careers. Despite its significance to the practice of law, few lawyers or members of the public have a comprehensive understanding of the disciplinary process.^[1]

The overarching goal of the lawyer disciplinary system is to protect the public from harm resulting from a lawyer’s misconduct.^[2] Lawyer discipline also exists to safeguard the legal system’s integrity, to achieve justice, and to educate others with the aim of preventing potential misconduct profession-wide. With respect to an individual lawyer, discipline has both a deterrent effect for future unethical behavior and, hopefully, a rehabilitative effect.^[3] Bar members are expected to live up to the legal profession’s ethical standards and can be disciplined for a violation of certain Bar rules even if they 1) do not currently practice law or 2) are practicing attorneys but are not acting as a lawyer in connection with the violation.^[4]

The disciplinary system is designed to determine whether a lawyer violated the Rules Regulating The Florida Bar, and if so, whether the violation warrants some form of disciplinary sanction.^[5] Thus, it is important to understand that not all technical Bar rule violations warrant discipline.

Florida’s lawyer disciplinary system has multiple stages, levels of review, and participants, all providing important checks and balances throughout the process. The following are the disciplinary system’s decisionmakers, whose roles are discussed in greater detail later in this article.

• Florida Supreme Court — The Florida Supreme Court has the ultimate authority to regulate and discipline lawyers and promulgates both the Bar rules and the rules governing Bar admission.^[6] The final decision on the imposition of most sanctions rests with the court.^[7]

• The Florida Bar — The Florida Supreme Court has delegated the responsibility for the investigation and prosecution of lawyer disciplinary violations to the Bar, as an “arm” of the court.^[8] Inquiries and complaints are first reviewed and investigated by the Bar’s intake department, officially known as the Attorney Consumer Assistance Program (ACAP), which can forward the matter to one of the Bar’s five branch offices for additional investigation and prosecution. The Bar is represented in disciplinary proceedings by Bar lawyers, all of whom are generally referred to as “Bar counsel.” Bar counsel include intake counsel in ACAP, branch counsel in the branch offices, and the chief branch discipline counsel who manage each branch.^[9] The Bar’s staff counsel appoints all Bar counsel and approves formal complaints, consent judgments, and most diversion recommendations.^[10]

• Grievance Committees — After the initial review of a discipline case by Bar counsel, those cases warranting additional investigation or prosecution are submitted to a grievance committee to decide whether to formally charge the accused lawyer (the respondent) with a disciplinary violation. After a grievance committee completes its investigation, it can recommend various outcomes, including finding whether there is “probable cause” to believe the respondent is guilty of misconduct justifying disciplinary action, finding no probable cause, recommending an admonishment, or recommending diversion.^[11]

• Referees — Circuit and county court judges preside over disciplinary proceedings as referees.^[12] At the conclusion of each disciplinary proceeding, the referee makes various findings and recommendations to the Florida Supreme Court.^[13]

• Board of Governors and Disciplinary Review Committee — The Florida Bar Board of Governors is the 52-member governing board for the Bar, comprised of volunteer, elected representatives from each of Florida’s 20 judicial circuits, four out-of-state representatives, two nonlawyer members, and the president and president-elect of both the Bar and the Young Lawyers Division.^[14] The board serves in an oversight role at all stages of the disciplinary review process, and makes decisions on behalf of the Bar with respect to discipline matters.^[15]

Each elected board member serves as the “designated reviewer” of cases pending before their local grievance committees and is responsible for reviewing and approving all of the grievance committee’s actions.^[16] If the designated reviewer disagrees with a grievance committee’s recommendation or finding, they can either send it back to the grievance committee for reconsideration or refer it to the board’s Disciplinary Review Committee (DRC) for additional review.^[17] Bar counsel also consults with the designated reviewer on the appropriate sanction to seek at trial or through a consent judgment. Additionally, the designated reviewer recommends actions for the DRC to take on various other disciplinary matters.

The DRC meets before each bimonthly board meeting and typically reviews over 20 cases each meeting. In addition to reviewing matters referred by a designated reviewer, the DRC also reviews referees’ recommendations following disciplinary trials and reinstatement hearings, certain consent judgments, disciplinary revocations, and other disciplinary matters. The DRC recommends to the board whether the Bar should — among other things — overturn a grievance committee’s action, enter its own finding regarding probable cause or seek review by the court of a referee’s findings and recommendations.^[18]

Potential Outcomes of a Disciplinary Case

There is a lot at stake for any lawyer accused of a disciplinary violation, including negative repercussions on their reputation and even the possibility of losing the privilege to practice law. There are a number of potential outcomes for a case entering the disciplinary system, ranging from file closure/dismissal, to diversion, to issuance of a sanction. It is only considered “discipline” if a sanction is issued, and that sanction then becomes part of the respondent’s permanent, public Bar disciplinary record.

Dismissal or Finding of No Probable Cause

There are several ways a disciplinary matter may be dismissed in the early stages of the process. As described in more detail below, if the respondent’s alleged conduct does not constitute a violation of the Bar rules warranting discipline, then the Bar may decide not to pursue an inquiry, may close a disciplinary file, or may issue a finding of no probable cause. A finding of no probable cause also may be accompanied by a letter of advice, which outlines concerns about the lawyer’s actions and contains recommendations regarding future conduct.^[19] All of these actions result in the termination of proceedings against the respondent with no discipline.

Alternatives to Discipline: Diversion, Mediation, and Arbitration

The Bar can utilize several alternatives to disciplinary sanctions for cases involving relatively minor transgressions or for cases that do not rise to the level requiring resolution within the disciplinary framework. If successfully completed, these alternative resolution methods are not considered discipline.

• Diversion — The Bar can offer diversion to eligible attorneys charged with minor violations that otherwise would be disposed of by either a minor misconduct finding or a finding of no probable cause with a letter of advice.^[20] Diversion removes the case from the disciplinary system and places it in a practice and professionalism enhancement program in lieu of disciplinary sanctions.^[21]

Practice and professionalism enhancement programs are designed to educate the respondent in order to improve their legal or law practice management skills, or to provide personal, substance abuse, or mental-health-related assistance, so that the lawyer hopefully will avoid future misconduct charges.^[22] These programs include workshops on professionalism, trust accounting, advertising, or stress management; ethics school; referral to Florida Lawyers Assistance and possible requirement to enter into a rehabilitative contract; referral to the Bar’s Diversion/Discipline Consultation Service for practice management assistance; and additional continuing legal education requirements. A lawyer is eligible for diversion only once every five years for the same type of rule violation, but may be eligible for diversion for a different category of rule violation as long as the lawyer has not had another diversion within the past year.^[23]

Diversion is not considered discipline, and upon the respondent’s entry into the practice and professionalism enhancement program, the Bar closes the disciplinary file, but opens a monitor file until the diversion is successfully completed.^[24] A diversion recommendation must be accepted by the respondent.^[25] If the respondent rejects diversion, then the case proceeds as if diversion had not been offered.^[26] However, most respondents accept diversion when offered.

The Florida Supreme Court does not review and approve/reject diversion, if recommended, before a probable cause finding, such as a Bar counsel/grievance committee chair, grievance committee, or pre-complaint board diversion recommendation.^[27] However, the court reviews and approves/rejects diversion recommendations made after probable cause has been found, including when a referee recommends diversion after a formal complaint has been filed.^[28] In the 2019-20 fiscal year that ended on June 30, 2020, there were 144 diversions by grievance committees and two by referees at the trial level.^[29]

• Grievance Mediation and Fee Arbitration — The Bar’s Grievance Mediation and Fee Arbitration program is designed to assist the complainant and respondent with resolving disputes outside the disciplinary system.^[30] When a grievance is more appropriate for a private resolution between the complainant and respondent than through the disciplinary process, the case may be referred to mediation.^[31] Additionally, a dispute regarding attorneys’ fees that would not constitute a clear violation of the Bar rules may be referred to fee arbitration, in which either one arbitrator or a three-arbitrator panel determines the “fair and reasonable value” of the services the lawyer provided the client.^[32] Volunteer lawyers and nonlawyers certified by the Bar’s Grievance Mediation and Fee Arbitration Committee serve as mediators and arbitrators under the program, and there is no cost to the parties to participate in mediation or arbitration.^[33]

Both the complainant and respondent must agree to mediation or fee arbitration, and once they do, the disciplinary file is closed. ^[34] Neither mediation nor fee arbitration is discipline. However, it is a Bar rule violation if the respondent, without good cause, does not attend the mediation or arbitration or does not comply with the terms of a mediation agreement or arbitration award.^[35] Further, if a respondent fails to pay an arbitration award within 30 days without good cause, the respondent will become “delinquent” and not eligible to practice law until the delinquency is resolved.^[36]

Disciplinary Sanctions

A lawyer faces a number of potential sanctions after being found guilty of a disciplinary violation. All sanctions are issued by the Florida Supreme Court, with the exception of an admonishment, which can be issued by either the court, a grievance committee, or the board. Sanctions are all considered “discipline.”

• Disbarment — Disbarment is the most severe sanction and is the revocation of a lawyer’s license to practice law and expulsion from the Bar.^[37] If a lawyer steals client funds or is convicted of a felony, the presumptive sanction is disbarment.^[38] When the court orders disbarment, it may dismiss without prejudice any other pending disciplinary cases against the respondent.^[39]

If a longer period of time is not specified in the court’s disbarment order, a disbarred lawyer can seek readmission to the Bar after a minimum of five years.^[40] Some disbarments specify a longer period of time before a disbarred lawyer can seek readmission, and the court can order permanent disbarment.^[41] If the disbarment is not permanent, a disbarred lawyer wishing to be readmitted to practice law after the expiration of the five-year (or longer) period, must apply for readmission through the Florida Board of Bar Examiners, which requires retaking the Florida bar examination and clearing a new character and fitness review.^[42]

• Disciplinary Revocation/Disbarment on Consent — Sometimes a lawyer chooses to surrender their Bar license rather than contesting disciplinary charges. That process occurs through either disciplinary revocation or disbarment on consent.^[43] Disciplinary revocation is considered “tantamount to disbarment.”^[44] There are procedural differences between disciplinary revocation and disbarment on consent, however, these sanctions essentially have the same result: the voluntary relinquishment of the lawyer’s license to practice law.

The lawyer initiates disciplinary revocation by filing a petition with the court, asking the court to approve the revocation of the petitioner’s Bar license. The petition must state whether it is with or without leave to apply for readmission to the Bar.^[45] The Bar has 60 days to respond, either supporting or opposing the petition. The Bar’s position is determined by the board following the DRC’s review and recommendation.^[46] The court will grant the petition if there will be no adverse effect on the public, the integrity of the court system, the administration of justice, or the public’s confidence.^[47] If the court grants disciplinary revocation, all pending disciplinary cases against the petitioner will be dismissed.^[48]

If leave to apply for readmission is permitted by the judgment granting disciplinary revocation, as with disbarments, the minimum period of time before a petitioner can seek readmission to the Bar is five years, and the readmission process is the same as for disbarments.^[49] Additionally, as with disbarments, a judgment granting a disciplinary revocation may set forth a period of time longer than five years before the petitioner can seek readmission to the Bar. If the court’s judgment does not permit leave to apply for readmission, then the disciplinary revocation is permanent.^[50]

• Suspension — A suspension prohibits a lawyer from practicing law for a specified period of time and can range from one day to three years.^[51] Unless otherwise ordered by the court, every suspension requires the lawyer to wind down their practice within 30 days before the effective date of the suspension. During the 30-day wind down period, a suspended lawyer is prohibited from taking on new cases, and must certify to the Bar that they provided a copy of the suspension order to all of their current clients, opposing counsel, co-counsel, and judges before whom they have cases, as well as all other state, federal, and administrative bars to which they are admitted.^[52]

Depending on the length of time the lawyer is suspended, the suspension can be nonrehabilitative or rehabilitative. A lawyer suspended for 90 days or fewer — referred to as a nonrehabilitative suspension — is automatically eligible to practice law once the suspension period ends, assuming all other conditions of the suspension order have been satisfied, without any further action or required approvals.^[53] Therefore, a lawyer suspended for 30 days is automatically eligible to practice law on the 31st day.

A suspension for 91 days or more is a rehabilitative suspension, which requires the lawyer to be reinstated to the practice of law by the court after showing that they have been rehabilitated.^[54] Thus, a lawyer suspended for 91 days is not automatically eligible to practice law on the 92nd day. Instead, the suspended lawyer must file a petition for reinstatement, undergo an investigation, establish to a referee that the lawyer has been rehabilitated and is not otherwise disqualified, and be reinstated by the court before the lawyer is eligible to practice law again.^[55] The reinstatement process, described in detail later in this article, can take at least several months. Sometimes suspended lawyers are never reinstated after a rehabilitative suspension because either they do not seek reinstatement, have disqualifying conduct, or are unable to prove rehabilitation.

During review of cases warranting suspension, the DRC and the board frequently have robust debates over not necessarily the specific length of the suspension sought by the Bar, but more so whether the suspension should be rehabilitative or nonrehabilitative. While 91 days may seem like an odd length of time for a suspension, the Bar frequently seeks just that: a 91-day suspension, because it converts the suspension into one requiring proof of rehabilitation before the respondent can practice law again. Thus, the difference between a 90-day suspension and a 91-day suspension is significant.

• Public Reprimand —The court may sanction the respondent by imposing a public reprimand, which is a public statement that the respondent’s conduct was improper.^[56] Notices of public reprimands are published in The Florida Bar News and on the Bar’s website and may be reported in other publications or through other methods. The court’s order may require the respondent to appear in person for administration of the public reprimand, such as before the court, the board, the referee, or another judge.^[57] A public reprimand does not affect a lawyer’s ability to practice law.^[58]

• Admonishment — An admonishment for minor misconduct is a statement that the lawyer’s conduct was improper, even if it did not cause any harm, and is the lowest form of discipline.^[59] An admonishment may be issued by the court in a disciplinary order, which may require the respondent to appear before the court, the board, the grievance committee, or the referee to receive the admonishment. An admonishment for minor misconduct also may be issued by a grievance committee or the board (which does not require the court’s approval), and the report of that action may direct the respondent to appear before either body for administration of the admonishment.^[60] As with a public reprimand, an admonishment does not affect a lawyer’s ability to practice law.^[61]

• Probation — The court can order probationary measures as a sanction, either as the sole discipline or, more commonly, in addition to other disciplinary measures.^[62] A lawyer who is placed on probation is permitted to practice law under the limitations and requirements specified by the court.^[63] Probation can be for a specified period of time ranging from six months to five years, or can be for an indefinite period of time subject to conditions.^[64] Probation can include a required practice and professionalism enhancement program, ethics or other continuing education courses, periodic audits, meetings with an accountant, meetings with a mental-health professional, drug and alcohol testing, supervision of work by another Bar member, reporting requirements, or other conditions.^[65] Additionally, probation may be imposed as a condition for readmission following disbarment or for reinstatement after suspension.^[66]

• Other Sanctions — The court can order other disciplinary measures, standing alone or in addition to other sanctions, such as requiring the respondent to make restitution, forfeit attorneys’ fees, submit a fee dispute to arbitration, mediate a grievance matter, retake all or a portion of the bar exam or Multistate Professional Responsibility Examination (MPRE), attend CLE courses, limit the type of cases a lawyer can handle, submit to evaluation or treatment for drug or alcohol related issues, or complete a practice and professionalism enhancement program.^[67]

Stages of the Disciplinary Process

1) Inquiry/Complaint Intake and Preliminary Investigation: The disciplinary process starts when the Bar receives a written inquiry questioning the conduct of a lawyer.^[68] Inquiries may come from current or former clients, lawyers, judges, or others, and may be initiated by the Bar itself. A six-year limitations period to submit an inquiry or open an investigation applies to most disciplinary violations, beginning from the time the matter giving rise to the inquiry or investigation is or should have been discovered.^[69]

Not all of the thousands of inquiries the Bar receives each year are prosecuted. After an inquiry is submitted to the Bar, intake counsel in the Bar’s ACAP department conducts a preliminary investigation. If intake counsel determines that the allegations, if proven, would not constitute a Bar rule violation warranting discipline, then the Bar may decline to pursue the inquiry without further action against the attorney.^[70] If, on the other hand, intake counsel decides to pursue an inquiry, then counsel opens a disciplinary file, and the inquiry becomes a complaint.^[71] The Bar, on its own, may initiate a complaint and open a disciplinary file if it discovers an alleged violation, such as through media reports, a notice of insufficient funds for a trust account disbursement from the lawyer’s bank, the criminal conviction of a lawyer, or a lawyer’s self-reporting of a violation. A complaint, except those initiated by the Bar, must be in writing and sworn to under oath by the complainant.^[72]

Approximately 25% of inquiries result in the opening of a disciplinary file. For the 2019-20 fiscal year ending June 30, 2020, the Bar opened 3,557 files after reviewing 13,055 inquiries. This number has progressively decreased over the past decade. In 2018-19, the Bar opened 4,131 files from 16,865 inquiries; in 2014-15, the Bar opened 5,320 files from 20,875 inquiries; and in 2010-11, the Bar opened 7,551 files from 24,199 inquiries.^[73]

After opening a file, intake counsel continues the preliminary investigation of the case, notifies the respondent of the complaint and requests a response within 15 days.^[74] After receiving the respondent’s response, intake counsel can close the file if the facts do not support going forward with prosecution.^[75] Intake counsel also can recommend referral of the case to mediation or fee arbitration in lieu of discipline.^[76] However, if further investigation is warranted or if the respondent fails to respond to the Bar, then the case is sent to one of the Bar’s five branch offices for additional proceedings.^[77]

2) Branch Investigation: Once a branch office receives the case, Bar counsel in the branch is assigned to continue the investigation. Bar counsel will review information provided by the complainant and the respondent, interview witnesses, and review other available evidence. Bar counsel has a number of tools and resources to assist with the investigation and may request that the grievance committee chair or vice chair issue a subpoena for the appearance of witnesses or for documents, including bank or trust accounting records.^[78] Staff investigators frequently assist Bar counsel by interviewing witnesses and providing other investigative assistance.^[79] When the allegations call into question respondent’s handling of client funds, auditors will audit the respondent’s trust account and other bank accounts. Bar counsel also may take the respondent’s statement, whereby the respondent is questioned under oath, similar to a deposition.^[80]

As with the intake investigation, during the branch investigation, Bar counsel can close the file if disciplinary measures are not warranted or recommend referral to mediation or fee arbitration.^[81] Additionally, in appropriate circumstances, Bar counsel can offer diversion of the case to a practice and professionalism enhancement program in lieu of disciplinary sanctions, with the agreement of the grievance committee chair, staff counsel, and the designated reviewer.^[82] In the 2019-20 fiscal year, at the investigation level prior to being sent to a grievance committee, Bar counsel referred 13 cases to mediation, 46 cases to fee arbitration, and no cases to diversion.

Finally, if there are sufficient grounds to go forward with prosecution, Bar counsel submits the complaint to a grievance committee, identifying all possible rule violations implicated by respondent’s alleged actions.^[83]

3) Grievance Committee Proceedings: The grievance committees perform a function similar to a grand jury and are charged with further investigating each case, considering all charges forwarded to them by Bar counsel, and determining whether there is probable cause that a disciplinary violation warranting sanctions occurred for each alleged rule violation.^[84]

There are 77 grievance committees, including at least one in each of the state’s 20 judicial circuits and a statewide grievance committee that handles only advertising violations.^[85] Each local grievance committee is comprised of volunteer lawyers and nonlawyers residing or having their principal office in that circuit. At least one-third of each committee must be nonlawyers, and all lawyer members must have been admitted to the Bar for at least five years.^[86]

For each case, the grievance committee’s chair assigns investigative duties to a specific committee member, who will interview witnesses, review evidence, and analyze the case. Bar counsel and staff investigators also assist the investigating member with these functions. After completing the investigation, the investigating member will recommend action by the grievance committee. ^[87]

Grievance committees typically meet each month, and neither the rules of evidence nor formal procedures apply.^[88] The grievance committee chair is authorized to decide whether the grievance committee will hold a hearing or make a decision based on a review of the record without a hearing.^[89] Most grievance committee decisions are made based on a review of the record. The respondent does not have a right to a hearing, but can request a hearing and permission to appear before the grievance committee.^[90] If the grievance committee chair authorizes a hearing, then the complainant has the right to be present any time the respondent is present.^[91]

After considering the case, the grievance committee, by a majority vote, can take a number of actions.^[92] The grievance committee can find that there is no probable cause to believe a lawyer is guilty of misconduct justifying disciplinary action. The grievance committee also can find no probable cause accompanied by a letter of advice to the respondent regarding their conduct. Both actions, if approved, end the case with no discipline. ^[93]

Alternatively, the grievance committee can recommend mediation of the grievance case or arbitration of a fee dispute, either of which, if successfully completed, also ends the case with no discipline.^[94] Additionally, for an eligible respondent, the grievance committee may recommend diversion to a practice and professionalism enhancement program in lieu of discipline.^[95] Staff counsel and the designated reviewer must approve, and respondent must accept, a diversion recommendation.^[96]

If the grievance committee determines that the respondent engaged in minor misconduct, it can recommend that respondent receive an admonishment, which is the lowest form of discipline.^[97] Staff counsel will review the grievance committee’s report recommending an admonishment as to form, and may return it to the grievance committee to correct a defect.^[98] The designated reviewer must approve, and respondent must accept, the report recommending an admonishment for minor misconduct.^[99]

Finally, the grievance committee can find probable cause, which is a finding that there is cause to believe a lawyer is guilty of misconduct justifying disciplinary action, thereby continuing the prosecution of the respondent.

Grievance committee diversion recommendations and findings of no probable cause, no probable cause with a letter of advice, minor misconduct, and probable cause are reviewed by the designated reviewer. The designated reviewer can either 1) approve the grievance committee’s action, in which case the matter proceeds or is closed accordingly; 2) send the matter back to the grievance committee for reconsideration; or 3) refer the matter to the board’s DRC with a recommended action.^[100]

After the designated reviewer’s referral, the DRC reviews the grievance committee’s action and recommends an action by the board.^[101] The board can approve, amend, or reject the grievance committee’s action, and is authorized on its own to find no probable cause, no probable cause with a letter of advice, minor misconduct, or probable cause; order diversion; or refer the matter to mediation or fee arbitration.^[102]

In the 2019-20 fiscal year, the Bar sent 974 new cases to grievance committees, and in that same year, grievance committees voted on 761 cases (some respondents had multiple cases against them). Of those 761 cases, grievance committees found probable cause in 219 cases; made 150 findings of no probable cause; made 202 findings of no probable cause with a letter of advice; recommended an admonishment for minor misconduct in 44 cases; recommended diversion in 144 cases; referred two cases to fee arbitration; and made no mediation referrals. Further, in the 2019-20 fiscal year, the board reviewed grievance committee findings and recommendations referred by designated reviewers and affirmed all of them. The board, on its own, did not make any findings regarding probable cause, issue any admonishments, or refer any cases to diversion, mediation, or fee arbitration.

4) Trial Before a Referee: Following a probable cause finding by the grievance committee or the board (or in other situations that do not require a probable cause finding), the Bar files a formal complaint with the court and serves the respondent.^[103] The respondent must file an answer and defenses to the complaint, and in the answer or by separate motion, may contest the sufficiency of the complaint or jurisdiction.^[104]

The court’s chief justice directs the chief judge of the circuit where the case will be tried to appoint a circuit, county, or retired judge to serve as the referee for the case (or, though not typical, the chief justice can appoint the referee directly).^[105] The referee handles all aspects of the case, including pre-trial matters and dispositive motions, such as motions to dismiss or for summary judgment. The parties are entitled to discovery, and the referee may issue subpoenas for witnesses and documents.^[106] Where the Bar rules are silent, the Florida Rules of Civil Procedure apply.^[107] A respondent may proceed pro se during any stage of the disciplinary process, but respondents often are represented by counsel.

Cases not resolved during the pre-trial stage proceed to trial before the referee.^[108] Disciplinary cases are “quasi-judicial administrative proceedings,” there is no jury, the rules of evidence do not apply, hearsay evidence is admissible, and the respondent does not have the right to confront witnesses.^[109] The respondent may be called as a witness and questioned by the Bar, and even if the respondent does not testify, the referee can ask the respondent questions to clarify matters.^[110]

Typically, the complainant will testify as a witness, but they are not a party to the proceedings, do not control the Bar’s prosecution, have no right to appeal, and have no other rights above and beyond any other witness.^[111] The burden of proof is on the Bar to demonstrate with clear and convincing evidence that a rule violation occurred.^[112]

At the conclusion of the trial, the referee issues a report containing findings of fact, recommendations of guilt or innocence for each alleged rule violation, and a recommendation of the appropriate sanction.^[113] The report also contains the respondent’s disciplinary history, as well as an analysis of the aggravating and mitigating factors relating to the respondent that the referee considered in recommending the sanction.^[114]

Aggravating factors are those justifying an increase in the level of discipline, and include: prior discipline; dishonest/selfish motive; pattern of misconduct; multiple violations; lying at or obstructing the disciplinary proceeding; refusal to accept the wrongful nature of the misconduct; the victim’s vulnerability; substantial experience practicing law; indifference to making restitution, and refusal to pay a fee arbitration award.^[115] Mitigating factors are those justifying a decrease in the level of discipline, and include: no prior discipline; no dishonest or selfish motive; personal or emotional problems; making restitution; full and free disclosure to the Bar; inexperience practicing law; good character or reputation; physical, mental, or substance abuse disability/disorder; an unreasonable delay in the disciplinary proceedings; rehabilitation; receipt of other penalties or sanctions; remorse; remoteness in time of prior discipline; and payment of a fee arbitration award.^[116]

Additionally, in determining what sanction to recommend, the referee considers discipline received in other cases, as well as provisions of the Standards for Imposing Lawyer Sanctions applicable to each rule violation.^[117] The referee also makes a recommendation as to the payment of the costs of the disciplinary proceedings.^[118] The referee’s report and the record are then filed with the court.^[119]

5) Board Review of Referee’s Report: The Bar and the respondent each have 60 days to seek review of the referee’s report.^[120] The Bar’s position on whether to seek review of the referee’s report is determined by the board.^[121] The same procedure applies for the board’s review of a referee’s pre-trial order granting dismissal or summary judgment.

At the board level, the referee’s report is first reviewed by the board’s DRC, which recommends to the board the position the Bar should take. The board can direct the Bar to seek review of the referee’s findings of facts, guilty or not guilty findings, and/or recommended sanction.^[122] In making its decision, the board takes into consideration Bar counsel’s and the designated reviewer’s recommendations, the facts and circumstances specific to the case, the referee’s findings and recommendations, the respondent’s disciplinary history, as well as discipline received in similar cases.

When the board directs the Bar to seek review of a referee’s report, it usually is with respect to either the recommended sanction or not guilty findings. The board rarely directs the Bar to seek review of a referee’s factual findings due to the very high burden to overcome those findings, unless the findings clearly are not supported by the evidence.^[123] The board is not bound by the disciplinary sanction that the Bar sought at trial, and when seeking review, can direct the Bar to argue for a more or less severe sanction than the Bar asked the referee to recommend. However, practically speaking, it is extremely rare for the board to direct the Bar to seek a more severe sanction on appeal than it sought at trial. Finally, the board can direct the Bar not to seek review of the referee’s report, but to file a cross-notice for review if the respondent seeks review.

6) Florida Supreme Court Review and Judgment: The court is the ultimate and final authority with respect to lawyer discipline matters.^[124] The court reviews the referee’s report containing the referee’s findings and recommendations from disciplinary trials.^[125] If either party seeks review of a referee’s report, then the parties submit briefs to the court arguing their respective positions.^[126] The parties may request oral argument, or the court may order oral argument on its own.^[127] The party seeking review has the burden of proof that the referee’s report is “erroneous, unlawful, or unjustified.”^[128]

If neither the Bar nor the respondent seeks review of the referee’s report, then the court will conduct its review of the report without briefs, unless the court requests briefing by the parties.^[129] At times, the court may enter an order to show cause why it should not enter a specific sanction, or range of sanctions, that were not recommended by the referee or the Bar.

The court can approve or disapprove any aspect of the referee’s report, including findings of guilt or innocence or the recommended sanction.^[130] The court can order a sanction that is harsher or more lenient than the sanction recommended by the referee. The court also can send a case back to the referee for further proceedings. Barring the court allowing reconsideration of its order, the court’s decision on guilt or innocence and the ultimate sanction imposed, if any, is final within the Florida lawyer disciplinary system.^[131]

Other Disciplinary Proceedings

There are various other disciplinary proceedings that are part of, or extensions of, the disciplinary process described above.

Consent Judgments

At times, a respondent may wish to plead guilty to the disciplinary charges, and enter into a consent judgment for discipline, which is essentially like a plea agreement.^[132] There are a number of reasons why a respondent may choose this option, including a desire to avoid contesting the charges, to obtain a quicker resolution, or to be able to negotiate with Bar counsel over the recommended sanction. The consent judgment contains a guilty plea to the disciplinary offenses, which is conditioned upon the court’s approval of the consent judgment.^[133]

The respondent can propose a consent judgment at any time. However, before the consent judgment is submitted to the court for consideration, it must receive several approvals depending on the stage of the disciplinary process at which the case is pending. If the respondent offers a consent judgment before a formal complaint has been filed, then Bar counsel, the designated reviewer, and the board must approve it.^[134] If the respondent offers a consent judgment after a formal complaint has been filed, then staff counsel, the designated reviewer (but not the board), and the referee must approve it, and if approved, the referee prepares a report recommending approval.^[135] If the consent judgment does not receive all required approvals, then the prosecution proceeds as if a consent judgment was not offered.^[136]

If approved, then the consent judgment and the referee’s report approving the consent judgment (if applicable) are filed with the court for consideration. If the court approves the consent judgment, it will issue an order or opinion approving the recommended discipline.^[137] If the court rejects the consent judgment, the prosecution continues as if it was not offered.^[138]

Contempt Proceedings

Disciplinary orders are enforced through the court’s contempt powers.^[139] The Bar initiates contempt proceedings by filing a petition for contempt and order to show cause with the court.^[140] If factual findings are needed, the court may refer the matter to a referee to conduct contempt proceedings and prepare a report.^[141] If the court finds the respondent in contempt for violating a disciplinary order, the court can impose any available disciplinary sanction (as well as any contempt sanction generally available to a court).^[142] The disciplinary sanction for contempt typically increases in severity from the original disciplinary order. For example, if a respondent is found in contempt for practicing law while suspended, the respondent may be suspended for an additional period of time or may be disbarred. A disbarred lawyer who is found in contempt for practicing law may be permanently disbarred and/or face criminal contempt sanctions.

Reinstatement of Lawyers Under Rehabilitative Suspension

Lawyers who are suspended for more than 90 days must be reinstated by the court before they are eligible to practice law again.^[143] The reinstatement process begins by the suspended lawyer filing a petition for reinstatement with the court.^[144] Before filing the petition, the suspended lawyer must have completed at least 80% of the suspension, paid all restitution ordered, and paid all disciplinary costs assessed (or be on a payment plan approved by the Bar).^[145]

The suspended lawyer has the burden of establishing fitness to resume the practice of law by showing that there has been no disqualifying conduct, demonstrating their character and fitness, and proving rehabilitation.^[146] The suspended lawyer cannot simply rely on an argument that they have conducted their personal and professional life in a manner expected of all lawyers. Instead, the lawyer must affirmatively establish rehabilitation, with clear and convincing evidence, by satisfying certain rehabilitation elements. These elements include evidence of character and reputation; lack of ill will toward participants in the disciplinary proceedings; commitment to act honorably going forward; restitution; community or civic service; and compliance with discipline orders and other court orders.^[147]

After the suspended lawyer files the petition for reinstatement, Bar counsel conducts an investigation into whether the petitioner has shown rehabilitation and whether there is disqualifying conduct that would warrant denial of the petition.^[148] During the investigation, Bar counsel determines if the petitioner complied with the suspension order; interviews witnesses; reviews financial, tax, and employment information; publishes notice in The Florida Bar News; and sends the petition to local board and grievance committee members, local bar association presidents, and others to solicit input.^[149]

The referee who handled the petitioner’s original discipline case that resulted in the suspension holds a hearing to determine whether the petitioner has sufficiently proven fitness to practice law to warrant reinstatement.^[150] Interested parties can provide comments at the hearing, and the petitioner must submit to questioning as a witness.^[151]

After the hearing concludes, the referee prepares a report that contains findings of facts and a recommendation regarding reinstatement.^[152] The DRC reviews the referee’s report, and recommends to the board whether the Bar should support or oppose the referee’s recommendation regarding reinstatement. The court then considers the referee’s report and the Bar’s response, and decides whether to reinstate the lawyer to the practice of law.^[153]

Placement on the Inactive List for Incapacity Unrelated to Misconduct

The Bar rules provide a mechanism to place a lawyer on the inactive list if the lawyer is “incapable of practicing law because of physical or mental illness, incapacity, or other infirmity,” without showing any misconduct.^[154] The Bar follows the same procedures for determining incapacity as for disciplinary violations, and a lawyer can consent to incapacity.^[155] Once placed on the inactive list for incapacity unrelated to misconduct, the lawyer is ineligible to practice law.^[156] Upon resolution of the incapacity, the lawyer may seek reinstatement to the practice of law in the same manner as the reinstatement of lawyers serving a rehabilitative suspension.^[157]

Interim Suspensions While the Underlying Case is Prosecuted

The court can order an interim suspension or interim probation while an underlying discipline case is being prosecuted.^[158] These occur in several situations.

• Felony Suspension — When a lawyer is convicted of a felony, the Bar will request an immediate felony suspension by filing a notice of the conviction with the court. Once that notice is filed, the respondent is automatically suspended.^[159] The respondent can ask the court to amend or terminate a felony suspension, which will be considered by a referee in an expedited manner; however, the referee can only recommend such relief if the respondent is not the convicted person or the offense is not a felony.^[160] Unless the felony suspension is amended or terminated by the court, the respondent remains on suspension during any appeal of the conviction or subsequent remanded lower court proceedings, until final disposition of the criminal charges.^[161]

• Emergency Suspension, Interim Probation, and Interim Placement on the Inactive List — When there is evidence that a lawyer “appears to be causing great public harm,” such as with misappropriation of client funds, or if a lawyer is suspended or disbarred in another jurisdiction, the Bar may petition the court to enter an immediate emergency suspension until resolution of the underlying discipline case.^[162] Once an emergency suspension is ordered, the lawyer cannot take on any new cases, and must stop representing existing clients after 30 days.^[163] The Bar also can seek an order of interim probation or interim placement on the inactive list in order to protect the public.^[164] After the court issues an emergency suspension or interim probation, a referee is appointed.^[165]

An emergency suspension or interim probation order may freeze the respondent’s trust account and other accounts relating to the respondent’s law practice and enjoin the respondent’s bank from allowing any unauthorized disbursements.^[166] The court can allow interested parties to claim ownership of funds in a frozen trust account and request their distribution through proceedings before a referee.^[167]

The respondent can move to amend or terminate an emergency suspension or interim probation order, which would then require the Bar to establish that it is likely to prevail on the merits of an underlying Bar rule violation showing the respondent is causing great public harm.^[168]

The referee will hold an expedited hearing on the charges. If the referee does not issue a final report within 90 days of their appointment, then the emergency suspension or interim probation will be dissolved, unless the court further extends it, but the court may still impose any other discipline for the respondent’s misconduct.^[169]

• Other Interim Suspensions by the Court — Finally, on rare occasions, the court may, on its own, impose an interim suspension pending the final outcome of a discipline case. For example, the court may review a referee’s report and conclude that the respondent will at least be suspended and potentially be disbarred. The court could, on its own, issue an interim suspension and request briefing on the appropriate final sanction. This differs from a usual suspension case because, unless serving a felony or emergency suspension, the respondent typically would not be suspended until the court issued a final discipline order.

Deferral of Prosecution Pending an Underlying Case

At times, the respondent may be the subject of an underlying criminal, civil, or administrative case with similar facts and issues as the disciplinary case, or which otherwise may affect the Bar’s investigation and prosecution of the disciplinary case. During the investigative stage, either Bar counsel or the grievance committee, with the approval of the board, or the board itself, has the option of deferring investigation or prosecution of the case pending the resolution of the underlying case.^[170] This may be done for a number of reasons, including to avoid inconsistent decisions between the underlying case and the disciplinary case, to prevent a party from using the disciplinary case to gain an advantage in a civil proceeding, or to counteract the difficulty in obtaining information necessary for the disciplinary prosecution while a criminal investigation is pending. If the disciplinary case is deferred, Bar counsel will monitor the underlying case that was the basis for deferral and will restart the investigation and prosecution once the underlying case is concluded.^[171]

Reciprocal Discipline Cases

Some Bar members are also licensed to practice law in other states or before federal courts. Those Bar members are subject to the disciplinary authority of the Bar and of each of those other jurisdictions for the same conduct regardless of where that conduct occurred.^[172] In other words, a lawyer can be prosecuted for disciplinary violations in more than one jurisdiction for the same conduct.

The Bar could prosecute a lawyer for misconduct at the same time another jurisdiction is prosecuting that lawyer for the same misconduct. However, when the misconduct occurred in the other jurisdiction, the Bar typically will wait until the conclusion of that jurisdiction’s disciplinary proceedings before initiating proceedings in Florida. The Bar’s subsequent prosecution of the respondent based on the other jurisdiction’s discipline order is referred to as a “reciprocal discipline” case.^[173]

In a reciprocal discipline case, the Bar can file a formal complaint based on the other jurisdiction’s discipline order without needing to obtain a probable cause finding.^[174] A finding of misconduct justifying discipline in another jurisdiction is deemed “conclusive proof” of that misconduct in a Florida disciplinary proceeding.^[175] However, the court is not required to impose the same discipline as the other jurisdiction and is free to impose a more or less severe sanction.^[176] Thus, a lawyer suspended in New York could be disbarred in Florida for the same misconduct.

Public Nature of the Disciplinary System

Many aspects of Florida’s disciplinary system are public.^[177] During staff investigations and grievance committee proceedings, the disciplinary case is confidential; however, the Bar can respond to a person who has known facts about the case by confirming the existence of the case and its status.^[178] After a grievance committee’s proceedings have concluded, the case remains confidential until after the appropriate review of the grievance committee’s action by the designated reviewer and the board, if applicable. Once those reviews have been completed, the grievance committee’s action becomes final, and the record before the grievance committee becomes public.^[179] The record and proceedings before a referee or the court are also public. This includes disciplinary trials and proceedings relating to emergency suspension, interim probation, disciplinary revocation, incapacity unrelated to misconduct, contempt, or reinstatement.^[180]

All deliberations of the board, the Executive Committee, and the DRC relating to disciplinary matters are privileged, confidential, and done in executive session.^[181] Thus, only board members, Bar counsel, and necessary staff are permitted to be present for any discussions or deliberations in executive session, or to otherwise be privy to such discussions or deliberations.

When a lawyer is disciplined, that sanction is public and becomes part of the lawyer’s permanent Bar disciplinary record.^[182] There is no mechanism for expunging a disciplinary sanction, with the exception of a sanction based on a felony conviction that is later overturned.^[183] Additionally, in order to assist the public, a lawyer’s discipline history for the past 10 years, as well as certain related documents, are available on the Bar’s website, as part of a lawyer’s profile in the Bar’s “Find a Lawyer” searchable database. Upon request, the Bar can provide information and public documents relating to discipline issued more than 10 years ago.
If the Bar concludes a disciplinary investigation or case without the imposition of a sanction, such as by Bar counsel declining to pursue an inquiry or closing a file, a finding of no probable cause, a finding of no probable cause with a letter of advice, diversion, or referral to mediation or fee arbitration, then the Bar retains the file for one year, after which the Bar maintains no further public record of the matter.

Conclusion

Florida’s lawyer disciplinary system has many participants and levels of review, and many aspects of the proceedings are open to the public. Bar attorneys and professional staff, county and circuit court judges, Florida Supreme Court justices, and the volunteer lawyers and public members who serve on the grievance committees and the board spend a substantial amount of time dedicated to ensuring fairness and integrity in the process for the participants, the profession, the legal system, and the public.