Florida Bar Journal

Lawyer Discipline — A Roadmap to Florida’s Lawyer Regulation System

The Florida Bar performs many important roles for the legal profession, and arguably none is more important than lawyer regulation and discipline. One of the fundamental aspects of the legal profession is that it is self-regulated. The judicial branch of government, headed by the Florida Supreme Court, is responsible for implementing and enforcing the rules that regulate the professional conduct of lawyers. The Florida Bar, as an arm of the court, is responsible for investigating and prosecuting lawyers who are alleged to have violated the rules of professional conduct, and the court ultimately determines what discipline is warranted when rule violations have been established. This sets the legal profession apart from most other professions, occupations, and industries and imposes on lawyers an important duty to ensure that they — and other lawyers — comply with the professional and ethical standards expected of them.

Fortunately, most lawyers will never have any interaction with the discipline 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]

Major Developments Since 2021

This author’s article providing an overview of Florida’s lawyer discipline system was published first in the January/February 2021 issue of The Florida Bar Journal.^[2] Since publication of the 2021 article, the Florida Supreme Court has amended certain rules, and the Board of Governors has amended certain policies and standards, relating to lawyer discipline. This article updates the 2021 article to address significant changes; expands on various topics; updates the discussion of, and citation to, various rules, policies, and standards applicable to lawyer discipline proceedings; and provides updated statistics.

Between January 2021 and March 2024, the Florida Supreme Court has amended the Bar rules applicable to lawyer discipline (specifically, Ch. 3 and Ch. 14) through five orders.^[3] Many of the changes included non-substantive reorganization and rewording of various rules. Several substantive rule changes, discussed in more detail in this article, include the following:

1) Implementation of new Rule 3-7.18 that provides additional procedures applicable to the review of complaints referred to the Bar by judges (“judicial referrals”);

2) An amendment to provide that a felony charge against a lawyer is deemed to be clear and convincing evidence of conduct causing great public harm sufficient to support an emergency suspension;

3) A new provision that prohibits the use of civil mediation for grievance matters, leaving the Bar’s grievance mediation process under Ch. 14 as the only available mediation option for minor Bar complaints;

4) With respect to consideration of a suspended lawyer’s petition for reinstatement, a new provision that prohibits a referee from referring the petition to either civil mediation or grievance mediation, and the codification of a factor constituting disqualifying conduct, and, thus, grounds for denying reinstatement, when a suspended lawyer holds out as eligible to practice law; and

5) A clarification that disputes over costs that a lawyer charged to a client, in addition to attorneys’ fee disputes, are appropriate for the Bar’s fee arbitration program.^[4]

The Purposes of the Lawyer Discipline System

As described by the Florida Supreme Court, “[t]he purposes of attorney discipline are: (1) to protect the public from unethical conduct without undue harshness towards the attorney; (2) to punish misconduct while encouraging reformation and rehabilitation; and (3) to deter other lawyers from engaging in similar misconduct.”^[5] The public nature of most aspects of the lawyer discipline system (discussed in detail later in this article) helps reinforce these fundamental purposes.

Bar members are expected to live up to the legal profession’s ethical standards, and can be disciplined for violating 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.^[6]

The discipline 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.^[7] Thus, it is important to understand that not all technical Bar rule violations warrant the imposition of discipline.

The Decisionmakers in the Lawyer Discipline System

Florida’s lawyer discipline system has multiple stages, levels of review, and participants, all providing important checks and balances throughout the process. The following are the discipline 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 the rules governing Bar admission and most Bar rules.^[8] The final decision on the imposition of sanctions rests with the court.^[9]

• 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 “official arm of the court.”^[10] 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 either close the matter or forward it to one of the Bar’s five branch offices for additional investigation and prosecution. The Bar is represented in disciplinary proceedings by 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 a chief branch discipline counsel for each branch.^[11] The Bar’s staff counsel appoints all Bar counsel and approves formal complaints, consent judgments, and diversion recommendations.^[12]

• 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, comprised of local lawyers and nonlawyers. The grievance committee further investigates the allegations and decides whether to formally charge the accused lawyer (the respondent) with one or more disciplinary violations. After a grievance committee completes its investigation, it can recommend various outcomes, including finding “probable cause” to believe the respondent is guilty of misconduct justifying disciplinary action, finding no probable cause, recommending an admonishment, or recommending diversion.^[13]

• Referees — Circuit and county court judges preside over disciplinary proceedings as referees.^[14] At the conclusion of each disciplinary proceeding, the referee makes various findings and recommendations to the Florida Supreme Court.^[15]

• Board of Governors, Disciplinary Review Committee, and Designated Reviewers — 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 appointed by the court, and the president and president-elect of both the Bar and the Young Lawyers Division.^[16] The board serves in an oversight role for the Bar in all stages of the disciplinary review process, and makes decisions on behalf of the Bar with respect to disciplinary matters.^[17] The initial review of disciplinary matters is done by the board’s disciplinary review committee (DRC), which makes recommendations to the board for final approval. In time-sensitive situations, the board’s executive committee can act on behalf of the board with respect to disciplinary matters.^[18]

Each grievance committee is assigned an elected board member to serve as the “designated reviewer” of cases pending before the committee. The designated reviewer is responsible for reviewing all actions of their assigned grievance committee(s).^[19] 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 DRC for additional review.^[20] Bar counsel also consults with the designated reviewer in individual cases on the appropriate sanction to seek at trial or through a consent judgment. Additionally, the designated reviewer is responsible for recommending certain actions to the DRC and making decisions on various other disciplinary matters.^[21]

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, consent judgments agreed to before a formal complaint is filed, disciplinary revocation petitions, judicial referrals, and other disciplinary matters. The DRC recommends to the board whether the Bar should — among other things — approve or overturn a grievance committee’s action; enter its own finding of probable cause or no probable cause, diversion, or admonishment for minor misconduct; refer the case to grievance mediation or fee arbitration; approve or reject proposed consent judgments or judicial referral dispositions; support or oppose disciplinary revocation petitions; or seek review by the court of a referee’s findings and recommendations in disciplinary trials and reinstatement petitions.^[22]

Potential Outcomes of a Disciplinary Case

There is a lot at stake for any lawyer accused of a disciplinary violation, including negative repercussions to 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 discipline 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.

1) 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.^[23] All of these actions result in the termination of proceedings against the respondent with no discipline.^[24] None of these dispositions is approved by the court, unless it is the proposed resolution of a judicial referral.^[25]

2) Alternatives to Discipline — Diversion, Mediation, and Fee Arbitration: The Bar can utilize several alternatives to disciplinary sanctions for cases involving relatively minor transgressions or for cases that do not require 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 result in either a minor misconduct finding or a finding of no probable cause with a letter of advice.^[26] Diversion takes a disciplinary case out of the discipline system and places it in a “practice and professionalism enhancement program.”^[27]

Practice and professionalism enhancement programs are designed to educate the respondent in order to improve their legal, professional, or law practice management skills, or to provide personal, substance abuse, or mental health-related assistance, so that the respondent hopefully will avoid future misconduct charges.^[28] These programs include workshops on professionalism, trust accounting, advertising, or stress management; ethics school; referral to Florida Lawyers Assistance, Inc., and the possible requirement for the respondent 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. If the respondent previously had a diversion, they cannot have another diversion 1) within five years of the previous diversion for the same kind of rule violation; or 2) within one year of the previous diversion for a different kind of rule violation.^[29]

Diversion is not considered discipline, and once the respondent enters into the practice and professionalism enhancement program, the Bar closes the disciplinary file, but monitors the case until the diversion is successfully completed.^[30] If the respondent does not complete the diversion program, the Bar can reopen the disciplinary file and continue investigating and prosecuting the case, with the respondent’s failure to comply with the diversion requirements warranting a more severe sanction.^[31]

A diversion recommendation must be accepted by the respondent.^[32] If the respondent rejects diversion, then the case proceeds as if diversion had not been offered.^[33] However, most respondents accept diversion when offered.

Except for those arising from judicial referrals, the Florida Supreme Court does not review diversions agreed to by the Bar and respondent before a formal complaint is filed, such as a Bar counsel/grievance committee chair, grievance committee, or board diversion.^[34] However, the court reviews diversion recommendations made after a formal complaint is filed, including when a referee recommends diversion.^[35] In the 2022-23 fiscal year that ended on June 30, 2023, there were 118 diversions prior to the filing of a formal complaint, and seven diversions by referees at the trial level.^[36] In 2019-20, there were 144 pre-complaint diversions and two trial-level diversions by referees.

• Grievance Mediation and Fee Arbitration — The Bar’s Grievance Mediation and Fee Arbitration program is designed to help the complainant and respondent resolve their disputes outside the discipline system.^[37] A grievance may be referred to mediation if it is more appropriately resolved individually between the complainant and respondent than through the discipline system.^[38] Additionally, a dispute regarding attorneys’ fees and costs may be referred to fee arbitration if the respondent’s conduct did not clearly violate the Bar rules (unless specifically referred to arbitration by the court or Bar counsel).^[39] Volunteer lawyers and nonlawyers approved 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.^[40]

Both the complainant and respondent must agree to participate in mediation or fee arbitration, and once they do, the disciplinary file is closed.^[41] Neither mediation nor fee arbitration is considered 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.^[42] Further, if a respondent fails to pay a fee arbitration award within 30 days without good cause, the respondent will become “delinquent” and not eligible to practice law until the delinquency is resolved.^[43]

3) 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, expect an admonishment can be issued by either the court, a grievance committee, or the board. Sanctions are all considered “discipline.”

• Disbarment — Disbarment is the revocation of a lawyer’s license to practice law and expulsion from the Bar, and is “the most severe sanction.”^[44] The court has expressed that “disbarment is an extreme form of discipline and should be reserved for the most egregious misconduct,”^[45] and “imposed ‘only in those rare cases where rehabilitation is highly improbable.’”^[46] If a lawyer steals client funds, the presumptive sanction is disbarment.^[47] Conviction for a felony also often results in disbarment.^[48] Additionally, disbarment may be appropriate for a lawyer’s “cumulative misconduct.”^[49] When the court orders disbarment, it may dismiss without prejudice any other pending disciplinary cases against the respondent.^[50]

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.^[51] Some disbarments specify a longer period of time before a disbarred lawyer can seek readmission, and the court can order permanent disbarment.^[52] However, “[p]ermanent disbarment is warranted only where an attorney’s conduct indicates he or she engages in a persistent course of unrepentant and egregious misconduct and is beyond redemption.”^[53]

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 to the Florida Board of Bar Examiners for readmission, which requires retaking and passing the Florida bar examination and establishing character and fitness to return to the practice of law.^[54]

• 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.^[55] Disciplinary revocation is considered “tantamount to disbarment,” meaning it is considered to be equivalent to, or essentially the same sanction as, disbarment.^[56] 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. In the petition, the lawyer must state whether the revocation is “with or without leave to apply for readmission to the bar.”^[57] The Bar has 60 days to respond in support of, or opposition to, the petition.^[58] The board decides the Bar’s position following the DRC’s review and recommendation.^[59] The court may 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.^[60] If the court grants disciplinary revocation, all pending disciplinary cases against the petitioner will be dismissed.^[61]

If the court grants the petitioner permission to apply for readmission, 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.^[62] Additionally, as with disbarments, a disciplinary revocation order may establish a period of time longer than five years before the petitioner can seek readmission to the Bar. ^[63] If the court does not grant leave to apply for readmission, then the disciplinary revocation is permanent.^[64]

• Suspension — A suspension prohibits a lawyer from practicing law for a specified period of time, and can range from one day to three years.^[65] 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.^[66] 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 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.^[67]

Depending on the length of time the lawyer is suspended, the suspension can be non-rehabilitative or rehabilitative. A lawyer suspended for 90 days or fewer — referred to as a non-rehabilitative 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.^[68] 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.^[69] Thus, a lawyer suspended for 91 days is not automatically eligible to practice law on the 92nd day. Instead, the suspended lawyer must 1) file a petition for reinstatement; 2) undergo an investigation; 3) establish to a referee that the lawyer has been rehabilitated, has the character and fitness to resume practicing law, and is not otherwise disqualified; and 4) be reinstated by the court, before the lawyer is eligible to practice law again.^[70] 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 non-rehabilitative. 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.^[71] Public reprimands are reported in the Southern Reporter, and notices of public reprimands are also published in The Florida Bar News and on the Bar’s website.^[72] The court 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.^[73] A public reprimand does not affect a lawyer’s ability to practice law.^[74]

• Admonishment — An admonishment for minor misconduct is a public statement that the lawyer’s conduct was improper, even if it did not cause any harm, and is the “lowest form of discipline” (i.e., the least severe sanction).^[75] Although an admonishment is public, it is not published in the Southern Reporter or The Florida Bar News, which distinguishes it from a public reprimand.^[76] In ordering an admonishment, the court may require the respondent to appear before the court, the board, the grievance committee, or the referee to receive the admonishment.^[77] A grievance committee or the board also may issue an admonishment for minor misconduct (which does not require the court’s approval unless it is in a judicial referral), and require the respondent to appear before either body to receive the admonishment.^[78] As with a public reprimand, an admonishment does not affect a lawyer’s ability to practice law.^[79]

• Probation — The court can order probationary measures as a sanction, either as the sole discipline or, more commonly, in addition to other disciplinary measures.^[80] A lawyer who is placed on probation is permitted to practice law under the limitations and requirements set by the court.^[81] The court often orders probation when it is better to restrict or monitor a lawyer’s practice of law than to suspend or disbar the lawyer.^[82] 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.^[83] Probation can include a required practice and professionalism enhancement program, ethics or other continuing education courses, periodic audits, meetings with an accountant, trust account or attorneys’ fees supervision, meetings with a mental-health professional, drug and alcohol testing, supervision of work by another Bar member, reporting requirements, practice limitations, or other conditions.^[84] Additionally, the court may order probation as a reinstatement or readmission condition.^[85]

• 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, 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, alcohol, or mental health related issues, or complete a practice and professionalism enhancement program.^[86]

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.^[87] 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 for a complaining witness to submit an inquiry or for the Bar to open an investigation applies to most disciplinary violations, beginning when grounds for the inquiry or investigation are or should have been discovered.^[88]

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 alleged misconduct, even if proven, would not be a Bar rule violation that would justify discipline, then the Bar may choose not to pursue the inquiry, which ends the investigation with no action taken against the attorney (absent receipt of new information).^[89] If, on the other hand, intake counsel decides to proceed with investigating the inquiry, then counsel opens a disciplinary file, and the inquiry becomes a complaint.^[90]

The Bar, on its own, may initiate a complaint and open a disciplinary file if it discovers a potential rule 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.^[91] A complaint “must be in writing and signed under penalty of perjury” by the complaining witness (unless the Bar is the complainant).^[92]

On average, approximately 24% of inquiries result in the opening of a disciplinary file. For the 2022-23 fiscal year ending June 30, 2023, the Bar opened 3,312 files after reviewing 13,534 inquiries. For the most part, these numbers have progressively decreased since 2010 (except for the 2019 to 2021 time frame). For example, 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.^[93]

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.^[94] After receiving the respondent’s response, intake counsel can close the file or dismiss the case if the facts do not support going forward with prosecution (subject to required approvals for judicial referrals).^[95] Intake counsel also can recommend referral of the case to mediation or fee arbitration in lieu of discipline.^[96] 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.^[97]

2) Branch Investigation: Once a branch office receives the case, Bar counsel in the branch is assigned to continue the investigation. Bar counsel reviews 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.^[98] Staff investigators frequently assist Bar counsel by interviewing witnesses and providing other investigative assistance.^[99] 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, in which the respondent is questioned under oath, similar to a deposition.^[100]

As with the intake investigation, during the branch investigation, Bar counsel can close the file if disciplinary measures are not warranted (subject to required approvals if it is a judicial referral), or recommend referral to mediation or fee arbitration.^[101] Additionally, in appropriate circumstances, Bar counsel can offer diversion of the case to a practice and professionalism enhancement program, with the agreement of the grievance committee chair, staff counsel, and the designated reviewer.^[102] In the 2022-23 fiscal year, at the investigation level before being sent to a grievance committee, Bar counsel referred three cases to mediation and 20 cases to fee arbitration.^[103] In addition, Bar counsel, with the concurrence of the grievance committee chair, referred 26 cases to diversion.

Finally, if there are sufficient grounds to go forward with prosecution, Bar counsel submits the complaint to a grievance committee for consideration, identifying all possible rule violations implicated by respondent’s alleged actions.^[104]

3) Grievance Committee Proceedings: The grievance committees perform a function in discipline cases similar to what grand juries do in criminal cases, and further investigate each case, consider all alleged violations presented by Bar counsel, and determine whether there is probable cause that a disciplinary violation warranting sanctions occurred for each alleged rule violation.^[105]

There are 73 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.^[106] Each circuit 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.^[107]

For each case, the grievance committee’s chair assigns investigative duties to a specific committee member (referred to as the “investigating member” for that case), who interviews witnesses, reviews evidence, and analyzes the case. Bar counsel also may serve as the investigating member for the case. Bar counsel and staff investigators also assist the investigating member with these functions.^[108] After completing the investigation, the investigating member recommends a proposed action to be taken by the grievance committee.

Grievance committees typically meet each month, and neither the rules of evidence nor formal procedures apply.^[109] The grievance committee chair determines whether the committee will hold a hearing to consider a disciplinary case or decide the case based on a review of the record without a hearing.^[110] 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.^[111] If the grievance committee chair authorizes a hearing, then the complainant has the right to attend any time the respondent does, unless the chair determines that the complainant’s attendance would be “impractical,” such as if it would delay the hearing.^[112]

After considering the case, the grievance committee, by a majority vote, can take a number of actions.^[113] The grievance committee can find that there is no probable cause to believe a lawyer is guilty of misconduct justifying disciplinary action, which may or may not be accompanied by a letter of advice to the respondent regarding their conduct.^[114] If approved, this action ends the case with no discipline.^[115]

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.^[116] Additionally, for an eligible respondent, the grievance committee may recommend diversion to a practice and professionalism enhancement program, which is not discipline.^[117] Staff counsel and the designated reviewer must approve, and the respondent must accept, a diversion recommendation.^[118]

If the grievance committee determines that the respondent engaged in minor misconduct, it can recommend that the respondent receive an admonishment, which is the “lowest form of discipline.”^[119] 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.^[120] The designated reviewer must approve, and the respondent must accept, the report recommending an admonishment for minor misconduct.^[121]

Finally, the grievance committee can find probable cause, which is a finding that there is cause to believe a lawyer committed misconduct justifying disciplinary action, thereby continuing the prosecution of the respondent.^[122]

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.^[123]

After the designated reviewer’s referral, the DRC reviews the grievance committee’s action and recommends an action by the board.^[124] 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.^[125]

In the 2022-23 fiscal year, the Bar sent 603 new cases to grievance committees, and in that same year, grievance committees voted on 399 cases (some respondents had multiple cases against them). Of those 399 cases, grievance committees found probable cause in 112 cases; made 64 findings of no probable cause; made 92 findings of no probable cause with a letter of advice; recommended an admonishment for minor misconduct in 29 cases; recommended diversion in 85 cases; referred one case to fee arbitration; and made no mediation referrals.^[126] Further, not including the board’s action on review of grievance committees’ proposed dispositions in judicial referrals, in 2022-23, the board affirmed the grievance committee’s action in every case referred to it by a designated reviewer except one. In that case, the board overturned a grievance committee’s finding of no probable cause with a letter of advice and found probable cause.

4) Board and Supreme Court Review of Judicial Referrals: On April 29, 2021, the board proposed amending the Bar rules to create an added review process for proposed dispositions in judicial referrals. The court approved the proposed amendment, with minor changes, and new Rule 3-7.18 went into effect on December 20, 2021.^[127]

A judicial referral is an inquiry, communication, or complaint questioning the conduct of a member of the [B]ar submitted to the [B]ar by a member of the judiciary…[and] includes a court order, judgment, or opinion specifically referring to the [B]ar a matter questioning the conduct of a member of the [B]ar.^[128]

Although certain Bar complaints can be disposed of without review by the board or the court, any disposition of a judicial referral is not effective until it is approved by the board and the court. A “disposition” is “the termination of an inquiry or complaint before a finding of probable cause or the filing of a formal complaint where a probable cause finding is not required,” including a: “(A) decision not to pursue an inquiry; (B) dismissal of a disciplinary case; (C) finding of no probable cause; (D) finding of no probable cause with issuance of a letter of advice; (E) recommendation of diversion; and (F) recommendation of admonishment for minor misconduct.”^[129] When there is a proposed disposition of a judicial referral, all timelines for final disposition set forth in other Bar rules are automatically suspended, and the disposition is not final until the review under Rule 3-7.18 is finished.^[130]

A proposed disposition of a judicial referral is first reviewed by the DRC and the board.^[131] After review, the board can either accept or reject the proposed disposition.^[132] If the board disagrees with the proposed disposition, the board can either send the case to the grievance committee for further review, find probable cause (and the Bar’s prosecution of the case will proceed), or recommend another disposition to the court.^[133]

If the board approves the proposed disposition or recommends a different disposition, then the board’s recommendation is provided to the court within 30 days of the board’s approval.^[134] The Bar submits to the court a summary report and all non-confidential information reviewed by the board, including the judicial referral itself, the respondent’s response, the proposed disposition, and the judge’s related decisions, orders, judgments, or communications.^[135] The court may a) approve the proposed disposition; b) reject the proposed disposition; c) send the matter back to the board for further consideration (with or without a recommendation); or d) request more information from the Bar.^[136] If the court rejects the disposition, it is deemed a finding of probable cause, and the Bar will then file a formal complaint and proceed with prosecution of the case.^[137]

Between January 2022 (the first board meeting after the judicial referral rule’s effective date) through January 2024, the board has overturned grievance committees’ proposed dispositions and found probable cause in two judicial referrals, and the court rejected the proposed dispositions in two judicial referrals which, by rule, is deemed to be a finding of probable cause in both cases.^[138]

5) 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.^[139] Within 20 days of service of the complaint, 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 and jurisdiction of the forum.”^[140] The Bar may file a reply if the respondent raises new issues or affirmative defenses in the answer.^[141]

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).^[142] The referee handles all aspects of the case, including pre-trial matters and dispositive motions, such as motions to dismiss or for summary judgment.^[143] The parties are entitled to discovery, and the referee may issue subpoenas for witnesses and documents.^[144] Where the Bar rules are silent, the Florida Rules of Civil Procedure apply.^[145] 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.^[146] Disciplinary cases are “neither civil nor criminal” but instead 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.^[147] “[T]he referee is permitted to consider all relevant information pertaining to the alleged misconduct.”^[148] Additionally, a referee is authorized to rely on an order or judgment issued by another court to support the referee’s factual findings in the disciplinary case.^[149] The respondent may be called as a witness and questioned by the Bar (subject to applicable privileges or legal rights), and even if the respondent does not testify, the referee can ask the respondent clarifying questions.^[150]

It is important to note that while the complaining witness may have been the one to initiate the disciplinary investigation by filing a complaint with the Bar about the lawyer’s actions, “[t]he complaining witness is not a party to the disciplinary proceeding and has no rights other than those of any other witness.”^[151] The Bar or the respondent may call the complaining witness to testify or produce evidence at trial, but the complaining witness does not control the Bar’s prosecution of the case and does not have a right to testify.^[152] Further, the Bar “may proceed with trial regardless of a complaining witness’ lack of cooperation or any settlement, compromise, or restitution between the respondent and complaining witness.”^[153] The referee may allow the complaining witness, after testifying, to attend any hearing that the respondent attends unless doing so would delay the proceedings or otherwise be impractical.^[154] Finally, “[t]he complaining witness has no right to appeal.”^[155]

The burden of proof is on the Bar to demonstrate with clear and convincing evidence that a rule violation occurred.^[156]

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(s).^[157] 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.^[158]

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; refusing to accept the wrongful nature of the misconduct; the victim’s vulnerability; substantial experience practicing law; indifference to making restitution; refusal to pay a fee arbitration award; and failing to complete a practice and professionalism enhancement program mandated by diversion.^[159] 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 or mental disability or impairment or substance-related disorder;” an unreasonable, prejudicial delay in the disciplinary proceedings not caused by the respondent; rehabilitation; receipt of other penalties or sanctions; remorse; remoteness in time of prior discipline; and payment of a fee arbitration award.^[160]

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.^[161] The referee also makes a recommendation as to the payment of the costs of the disciplinary proceedings.^[162] The referee’s report and the record are then filed with the court.^[163]

6) Board Review of Referee’s Report: The Bar and the respondent each have 60 days to seek review of the referee’s report.^[164] The Bar’s position on whether to seek review of the referee’s report is determined by the board.^[165] The same procedure for the board’s review of a referee’s report after trial applies for the board’s review of a referee’s pre-trial order granting dismissal or summary judgment.^[166]

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 any aspect of the referee’s report, including the referee’s findings of facts, aggravating and mitigating factor findings, guilty or not guilty findings, recommended sanction, and assessment of costs.^[167] In making its decision on whether to seek review, 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.

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 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.

7) Florida Supreme Court Review and Judgment: The court is the ultimate and final authority with respect to lawyer discipline matters.^[168] After a disciplinary trial, the court reviews the referee’s report containing the referee’s findings and recommendations.^[169] If either party seeks review of a referee’s report, then the parties submit briefs to the court arguing their respective positions.^[170] The parties may request oral argument, or the court may order oral argument on its own.^[171]

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.^[172] 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 also can send a case back to the referee for further proceedings.^[173]

The court can approve or disapprove any aspect of the referee’s report, including findings of guilt or innocence or the recommended sanction.^[174]

The party seeking review must show that some aspect of the referee’s report is “erroneous, unlawful, or unjustified.”^[175] The court applies various standards of review based on what aspect of the referee’s report is challenged, including the following:

a) Admissibility of Evidence: The court reviews a referee’s decisions as to the admissibility of evidence for “abuse of discretion.”^[176]

b) Credibility Determinations: With respect to a referee’s findings regarding witness credibility, “[t]he Court defers to the referee’s assessment and resolution of conflicting testimony because the referee is in the best position to judge the credibility of the witnesses.”^[177]

c) Findings of Fact and Failure to Make Findings of Fact: “[A] referee’s findings of fact carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record.”^[178] The court’s review of challenges to a referee’s findings of fact “is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, [the] Court will not reweigh the evidence and substitute its judgment for that of the referee. However, where a referee’s failure to make a particular factual finding is clearly erroneous in light of the evidence before [the referee], [the] Court can make such a finding.”^[179]

d) Findings in Mitigation and Aggravation and Failure to Find Mitigating or Aggravating Factors: “Like other factual findings, a referee’s findings in mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record.”^[180] “A referee’s failure to find that an aggravating factor or mitigating factor applies is due the same deference.”^[181]

e) Recommendations as to Guilt: “To the extent a party challenges the referee’s recommendations as to guilt, the Court has repeatedly stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. Ultimately, the party challenging the referee’s findings of fact and conclusions as to guilt has the burden to demonstrate that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions.”^[182]

f) Award of Costs: The referee’s recommendation regarding payment of costs is reviewed for “abuse of discretion.”^[183]

g) Recommended Sanction: With respect to the referee’s recommended sanction, the court has broad discretion in determining the final sanction imposed: “In reviewing a referee’s recommendation as to discipline, the Court’s scope of review is broader than that afforded to the referee’s findings of fact, because it is ultimately the Court’s responsibility to determine the appropriate discipline. However, the Court will generally not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions.”^[184] Thus, the court can order a sanction that is harsher or more lenient than the sanction recommended by the referee.

Some respondents have a prior disciplinary record, whether for the same or other types of misconduct, or may have multiple cases that are pending, all of which may affect the sanction that the court decides is appropriate. “In rendering discipline, this Court considers the respondent’s previous disciplinary history and increases the discipline where appropriate. The Court deals more harshly with cumulative misconduct than it does with isolated misconduct.”^[185] “[T]his Court typically takes an incremental approach, imposing increasingly heavier sanctions on respondents who have previously been disciplined for engaging in similar misconduct.”^[186] When multiple cases against the respondent are pending before the court, the court “can impose a combined sanction for all cases and ‘determine the appropriate discipline from the totality of the conduct as though all of the charges had been presented to [the Court] in one proceeding.’”^[187]

Absent 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 discipline system.^[188]

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.^[189] 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 on the court’s approval of the consent judgment.^[190]

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.^[191] 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 by the court.^[192] If the consent judgment does not receive all required approvals, then the prosecution proceeds as if a consent judgment was not offered.^[193]

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.^[194] If the court rejects the consent judgment, the prosecution continues as if it was not offered.^[195] The court’s rejection of a consent judgment does not prohibit the respondent from proposing another consent judgment with a more severe sanction.

Contempt Proceedings

Disciplinary orders are enforced through the court’s contempt powers.^[196] The Bar initiates contempt proceedings by filing a petition for contempt and order to show cause with the court.^[197] If factual findings are needed, the court may refer the matter to a referee to conduct contempt proceedings and prepare a report.^[198] 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).^[199] 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 91 days or more must be reinstated by the court before they are eligible to practice law again.^[200] The reinstatement process begins by the suspended lawyer filing a petition for reinstatement with the court.^[201] Before filing the petition, the suspended lawyer must have served 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).^[202]

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.^[203] 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, but instead must affirmatively establish rehabilitation, with clear and convincing evidence, by satisfying certain rehabilitation elements.^[204] 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.^[205]

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.^[206] 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.^[207]

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.^[208] Interested parties can provide comments at the hearing, and the petitioner must submit to questioning as a witness.^[209] The referee is prohibited from referring issues of reinstatement to civil mediation or grievance mediation.^[210]

After the hearing concludes, the referee prepares a report that contains findings of facts and a recommendation regarding reinstatement.^[211] 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.^[212] The court may impose conditions on the lawyer’s reinstatement, including restitution, payment of costs, bar examination passage, or probation.^[213] If the court denies reinstatement, the suspended lawyer must wait at least one year before filing a new reinstatement petition.^[214]

Placement on Inactive Status for Incapacity Unrelated to Misconduct

The Bar rules provide a mechanism to place a lawyer on inactive status if the lawyer is “incapable of practicing law because of physical or mental illness, incapacity, or other infirmity,” without showing any misconduct.^[215] The Bar follows the same procedures for placing a lawyer on inactive status for incapacity as it does for disciplinary violations, and a lawyer can consent to incapacity under the same procedures for a consent judgment.^[216] Once placed on inactive status for incapacity unrelated to misconduct, the lawyer is ineligible to practice law.^[217] 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.^[218]

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.^[219] These occur in several situations.

• Felony Suspension — When a lawyer is convicted of a felony, the Bar requests an immediate felony suspension by filing a notice of the conviction with the court. Once that notice is filed, the respondent is automatically suspended, and a referee is appointed.^[220] The respondent can ask the court to amend or terminate a felony suspension, which will be considered by the referee in an expedited manner; however, the referee can only recommend that relief if the respondent proves they are not the convicted person or the offense is not a felony.^[221] 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.^[222]

After appointment, the referee has 90 days to hold a hearing and issue a report recommending the final sanction for the felony conviction, and as with a petition to terminate/amend the suspension, “[t]he respondent may challenge the imposition of a sanction only on the grounds of mistaken identity or whether the conduct involved constitutes a felony.”^[223] The respondent may not challenge any guilt findings relating to the conviction, but may provide character and mitigation evidence, as well as an explanation for any guilty plea.^[224]

• Emergency Suspension and Interim Probation — 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 charged with a felony, or 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.^[225] Once an emergency suspension is ordered, the lawyer cannot take on any new cases, and must stop representing existing clients after 30 days.^[226] The Bar also can seek an order of interim probation if “conditions or restrictions on a lawyer’s privilege to practice law in Florida are necessary to protect the public.”^[227] After the court issues an emergency suspension or interim probation order, a referee is appointed.^[228]

An emergency suspension or interim probation order may freeze the respondent’s trust account, freeze other accounts relating to the respondent’s law practice, and enjoin the respondent’s bank from allowing any unauthorized disbursements.^[229] 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.^[230]

The respondent can move to amend or terminate an emergency suspension, 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.^[231] The referee will hold a hearing on the motion within seven days of assignment and has seven days after the hearing to file a referee’s report with the court.^[232]

The referee will hold an expedited hearing on the charges that serve as the basis for an emergency suspension or interim probation order. 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.^[233]

• 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 disciplinary case. For example, the court may review a referee’s report and conclude that the respondent should 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, the Bar may seek to defer investigation or prosecution of the disciplinary case pending the resolution of the underlying case.^[234] 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.^[235]

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.^[236] 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 as opposed to Florida, 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.^[237]

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.^[238] A finding of misconduct justifying discipline in another jurisdiction is deemed “conclusive proof” of that misconduct in a Florida disciplinary proceeding.^[239] 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.^[240] Thus, a lawyer suspended in New York could be disbarred in Florida for the same misconduct.

Public Nature of the Discipline System

Many aspects of Florida’s discipline system are public.^[241] 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.^[242] 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.^[243] Once those reviews have been completed, the grievance committee’s action becomes final, and the record before the grievance committee becomes public.^[244] The record and proceedings before a referee or the court (except while the court is reviewing a proposed disposition in a judicial referral) are also public. This includes disciplinary trials and proceedings relating to emergency suspension, interim probation, disciplinary revocation, incapacity unrelated to misconduct, contempt, or reinstatement.^[245]

All deliberations of the board, the Executive Committee, and the DRC relating to disciplinary matters are privileged, confidential, and done in executive session.^[246] 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.^[247] There is no mechanism for expunging a disciplinary sanction, with the exception of a sanction based on a felony conviction that is later overturned or other resolution of a criminal case by acquittal or dismissal.^[248] 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.^[249] On 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.^[250]

Conclusion

Florida’s lawyer discipline 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.