Board to take up rules governing the emergency suspension of lawyers charged with felonies
The Board of Governors is set to weigh preliminary approval of a proposed rule amendment, drafted with Criminal Law Section input, that would provide for the emergency suspension of lawyers facing felony charges.
The Disciplinary Procedure Committee voted unanimously November 23 to approve the latest version of proposed amendments to Bar Rule 3-5.2 (Emergency Suspension; Emergency Suspension Relating to Felony Charges; Interim Probation; Interim Placement on the Inactive List for Incapacity Not Related to Misconduct; and Freezing Trust Accounts).
The committee is scheduled to present the proposal on first reading when the board meets December 3 on Amelia Island.
The Supreme Court requested amendments this summer, citing a “continuing need to protect the public.”
In a June 11 letter, justices noted that Bar Rule 3-7.2 provides for suspensions only after there has been a determination of guilt in a criminal case.
“Without an appropriate rule modification, an attorney may remain eligible to practice law during the pendency of a felony case while the attorney may also be unwilling or unable to respond fully in disciplinary proceedings,” justices wrote.
The Supreme Court set an October 11 deadline to file a rule petition.
The committee was poised in September to approve one of two versions of proposed amendments to Rule 3-5.2 (Emergency Suspension and Interim Probation or Interim Placement on the Inactive List for Incapacity Not Related to Misconduct).
One version would have created a subsection (b) that would permit the court to temporarily suspend a lawyer after the Bar filed a “Notice of Institution of Felony Charge.”
Another would have required the Bar to seek a response to the charge from the lawyer before filing the Notice of Institution of Felony Charge, allowed the court to suspend the lawyer on an emergency basis based on a lack or insufficiency of response and given the lawyer the ability to file for the dissolution of the emergency suspension after the charges have been dropped or reduced to a misdemeanor.
But concerned that the rule would allow for the suspension of an attorney without a hearing in the underlying criminal case, or a disciplinary proceeding, the committee also proposed a comment.
“In light of those concerns, the board hopes that the Court will not order suspension as a matter of course and, rather than viewing suspension as a default position, hopes the Court will review the issue of whether individual respondents will be subject to emergency suspension due to felony charges on a case-by-case basis.”
The executive council of the Criminal Law Section voted unanimously to oppose the proposals, citing due-process concerns.
“We stand for due process as lawyers, and we have to lead the way,” executive council member and former Criminal Law Section Chair Warren Lindsey told the committee at the September meeting. “Prosecutors, defense lawyers, judges, and people in academia…everybody thought this needed more work.”
The committee voted instead to recommend that the Bar ask the Supreme Court for more time and invited the Criminal Law Section to craft a new version.
The court granted an extension until February 11.
The latest proposal includes Criminal Law Section concepts.
The proposal includes provisions that would require the Bar to determine the felony charge, if proven, would establish that the lawyer was causing great public harm and give the accused lawyer 15 days to respond to the allegations raised in the charging documents. If the lawyer responds, a referee would be appointed who would have 30 days to conduct a hearing and make a recommendation on whether the Supreme Court should suspend the lawyer.
Another provision would require the referee to consider “the totality of the circumstances” regarding the felony charges. The proposal also would allow a dissolution after suspension is imposed only after charges were dropped or reduced to a misdemeanor.
South Florida attorney David B. Rothman, a Criminal Law Section Executive Council member and former section chair, was one of the several section leaders who worked on the proposal.
He praised the committee and Bar staff for crafting a proposal that is the “essence of our rule made logical, readable, and understandable.”
“It’s a wonderful [example] of a section stepping up to do its job and working with the Bar and coming up with a good strong workable solution that hopefully the Supreme Court will approve.”