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Court approves rule governing judicial referrals of lawyer misconduct

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Florida Bar sealA Bar rule amendment that guarantees all judicial complaints about lawyer conduct that result in a dismissal will get a Board of Governors and perhaps Supreme Court review has been approved by the court.

The court on October 21 approved, with a slight change, the Board of Governors-recommended creation of Bar Rule 3-7.18.

“The new rule establishes a process by which the Board of Governors of The Florida Bar and the Court will review and approve the disposition of referrals regarding lawyer misconduct from members of the judiciary that do not result in a finding of probable cause or the filing of a formal complaint if a finding of probable cause is not required,” the court said in the per curiam opinion.

The rule was developed by the Bar’s Special Committee on Examination of Judicial Referral Process, “which was tasked with determining the most effective and efficient process to address judicial referral of lawyer misconduct,” the opinion said.

Judges have long complained that when they have observed bad lawyer conduct and contacted the Bar, cases have not been followed up and the judges are uninformed about the outcome.

The new rule applies when a judicial complaint is made and the Bar decides not to pursue the inquiry, dismisses the case, finds no probable cause, finds no probable cause but issues a letter of advice, recommends the lawyer be sent to a disciplinary diversion program, or sends a letter of admonishment for minor misconduct. None of those require filing of formal grievance charges.

A judicial referral includes any “inquiry, communication, or complaint” about a lawyer’s conduct and includes “a court order, judgment, or opinion specifically referring to the Bar a matter questioning the conduct of a member of the Bar.”

All the complaints that do not result in filing of charges will be reviewed by the Bar’s Disciplinary Review Committee, which will make a recommendation to the full Board of Governors. The board can accept the committee’s recommended disposition or reject it and refer it to a grievance committee for additional investigation, find probable cause with the case proceeding normally through the grievance process, or recommend a different disposition to the Supreme Court.

The court may review the board’s approval of dispositions (dismissals with up to a letter of admonishment) and the court may approve the board’s disposition, reject it which will result in a finding of probable cause and the filing of a formal complaint, refer the case back to the board for further review with or without guidance, or ask the Bar to provide more information.

The new rule is effective December 20.

The Board of Governors approved the new rule on April 29 and it was filed with the court May 3. It was published for comment. No comments were received.

The court acted in In re: Amendment to Rules Regulating The Florida Bar – Rule 3-7.18, Case No. SC21-653.

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