Florida Bar rules proposals (Chapter 3)
The Board of Governors of The Florida Bar gives notice of filing with the Supreme Court of Florida, on or about January 5, 2024, a petition to amend the Rules Regulating The Florida Bar. The full text of the proposed amendments is below. Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.
3-3. JURISDICTION TO ENFORCE RULES
RULE 3-3.4 GRIEVANCE COMMITTEES
The board will appoint grievance committees as provided in this rule. Each grievance committee has the authority and jurisdiction required to perform the functions assigned to it, which are as follows:.
(a) Circuit Grievance Committees. The board will appoint at least 1 grievance committee for each judicial circuit of this state and as many more as the board chooses. These committees will be designated as judicial circuit grievance committees, and, in circuits having more than 1 committee, they will be identified by alphabetical designation in the order of creation. These committees will be continuing bodies notwithstanding changes in membership, and they will have jurisdiction and the power to proceed in all matters properly before them.
(b) Special Grievance Committees. The board may appoint grievance committees for the purpose of investigations or specific tasks assigned in accordance with these rules. These committees will continue only until the completion of tasks assigned, and they will have jurisdiction and power to proceed in all matters assigned to them. All provisions concerning grievance committees apply to special grievance committees, except those concerning terms of office and other restrictions imposed by the board. Any vacancies occurring in such a special grievance committee will be filled by the board, and any changes in members will not affect the jurisdiction and power of the committee to proceed in all matters properly before it.
(c) Membership, Appointment, and Eligibility. Each grievance committee will be appointed by the board and must have at least 3 members. At least one-third of the committee members must be nonlawyers who are not current or former members of The Florida Bar or any other state bar, including the District of Columbia. All appointees must be of legal age and, except for special grievance committees, must be residents of the circuit or have their principal office in the circuit. The lawyer members of the committee must have been members of The Florida Bar for at least 5 years and in good standing and eligible to practice law in Florida at the time of appointment to the committee.
A member of a grievance committee must not perform any grievance committee function when that member:
(1) is related by blood or marriage to the complainant or respondent;
(2) has a financial, business, property, or personal interest in the matter under consideration or with the complainant or respondent;
(3) has a personal interest that could be affected by the outcome of the proceedings or that could affect the outcome; or
(4) is prejudiced or biased toward either the complainant or the respondent.
On notice of the above prohibitions, the affected members should recuse themselves from further proceedings. The grievance committee chair has the power to disqualify any member from any proceeding in which any of the above prohibitions exist and are stated orally on the record or memorialized in writing by the chair.
(d) Terms. The terms of the members are for 1 year from the date of administration of the oath of service on the grievance committee or until their successors are appointed and qualified. Continuous service of a member may not exceed 3 years. A member may not be reappointed for a period of 3 years after the end of the member’s term; but, the expiration of a member’s term of service does not disqualify the member from concluding any investigation or participating in disposition of cases that were pending before the committee when the member’s term expired. A member who continues to serve on the grievance committee under the authority of this subdivision is not counted as a member of the committee when calculating the minimum number of public members required by this rule.
(e) Officers. The designated reviewer of the committee will designate a chair and vice-chair who must be members of The Florida Bar.
(f) Oath. Each new member of a committee must subscribe to an oath to fulfill the duties of the office. These oaths will be filed with the executive director and placed with the official records of The Florida Bar.
(g) Removal. The designated reviewer of a grievance committee or the board of governors may remove any member of a grievance committee from office.
(h) Grievance Committee Meetings. Grievance committees should meet at regularly scheduled times, at least once every 3 months, and either the chair or vice-chair may call special meetings. Grievance committees should meet at least monthly during any period when the committee has 1 or more pending cases assigned for investigation and report. The time, date, and place of regular monthly meetings should be set in advance by agreement between the committee and chief branch discipline counsel.
3-5. TYPES OF DISCIPLINE
RULE 3-5.1 GENERALLY
(a) Disciplinary Measures in Judgments. A judgment finding a member of The Florida Bar guilty of misconduct will include 1 or more of the following disciplinary measures.
(a) Admonishments.(1) Admonishment. A Supreme Court of Florida order finding minor misconduct and ordering an admonishment may direct the respondent to appear before the Supreme Court of Florida, the board of governors, a grievance committee, or the referee for administration of the admonishment. A grievance committee report and finding of minor misconduct or the board of governors, on review of the report, may direct the respondent to appear before the board of governors or the grievance committee for administration of the admonishment. A memorandum of administration of an admonishment will be made a part of the record of the proceeding after the admonishment is administered.
(b) Minor Misconduct. Minor misconduct is the only type of misconduct for which an admonishment is an appropriate disciplinary sanction.
(1) Criteria.(A) Criteria. In the absence of unusual circumstances, misconduct will not be regarded as minor if any of the following conditions exist:
(Ai) the misconduct involves misappropriation of a client’s funds or property;
(Bii) the misconduct resulted in or is likely to result in actual prejudice (loss of money, legal rights, or valuable property rights) to a client or other person;
(Ciii) the misconduct resulted in or is likely to result in actual or potential injury to the public or the legal system;
(Div) the respondent has been publicly disciplined in the past 3 years;
(Ev) the misconduct involved is of the same nature as misconduct for which the respondent has been disciplined in the past 5 years;
(Fvi) the misconduct includes dishonesty, misrepresentation, deceit, or fraud on the part ofby the respondent; or
(Gvii) the misconduct constitutes the commission of a felony under applicable law.
(2) Discretion of Grievance Committee.(B) Discretion of Grievance Committee. A grievance committee may recommend an admonishment for minor misconduct or diversion to a practice and professionalism enhancement program when unusual circumstances are present, despite the presence of 1 or more of the criteria described in subdivision (1) of this rule. Any grievance committee report recommending an admonishment for minor misconduct or diversion to a practice and professionalism enhancement program despite the presence of the criteria in this rule must contain a detailed explanation of the circumstances giving rise to the committee’s recommendation.
(3) Recommendation of Minor Misconduct.(C) Recommendation of Minor Misconduct. If a grievance committee finds the respondent guilty of minor misconduct or if the respondent admits guilt of minor misconduct and the committee concurs, the grievance committee will file its report recommending an admonishment, the manner of administration, the taxing of costs, and an assessment or administrative fee in the amount of $1,250 against the respondent. The report recommending an admonishment will be forwarded to staff counsel and the designated reviewer for review. If staff counsel does not return the report to the grievance committee to remedy a defect in the report, or if the report is not referred to the disciplinary review committee by the designated reviewer as provided elsewhere in these rules, the report will then be served on the respondent by bar counsel. The report and finding of minor misconduct becomes final unless rejected by the respondent within 30 days after service of the report. If rejected by the respondent, bar counsel will file a formal complaint as in a finding of probable cause. If the respondent does not reject the report of minor misconduct is not rejected by the respondent, bar counsel will give written notice of the finding of minor misconduct will be given, in writing, to the complainant.
(4) Rejection of Minor Misconduct Reports.(D) Rejection of Minor Misconduct Reports. The board of governors’ rejection of a grievance committee report of minor misconduct, without dismissal of the case, or remand to the grievance committee, is deemed a finding of probable cause. The respondent’s rejection is deemed a finding of probable cause. At trial before a referee following a respondent’s rejection of a report of minor misconduct, the referee may recommend any discipline authorized under these rules.
(5) Admission of Minor Misconduct.(E) Admission of Minor Misconduct. A respondent may tender a written admission of minor misconduct to bar counsel or to the grievance committee within 30 days after service of the notice of a finding of probable cause by a grievance committee. An admission of minor misconduct may be conditioned on acceptance by the grievance committee or the board of governors, but the respondent may not condition the admission of minor misconduct on the method of administration of the admonishment or on nonpayment of costs incurred in the proceedings. An admission may be tendered after a finding of probable cause (but before the filing of a complaint) only if an admission has not been previously tendered. If the admission is tendered after a finding of probable cause, the grievance committee or board of governors may consider the admission without further evidentiary hearing and may either reject the admission, affirming its prior action, or accept the admission, in which case, the report of minor misconduct will be issued by the grievance committee. If a respondent’s admission is accepted by the grievance committee or board of governors, the respondent may not later reject a report of the committee recommending an admonishment for minor misconduct. If the admission of minor misconduct is rejected, the admission may not be considered or used against the respondent in subsequent proceedings.
(F) Administration of Admonishment. A Supreme Court of Florida order finding minor misconduct and ordering an admonishment may direct the respondent to appear before the Supreme Court of Florida, the board of governors, a grievance committee, or the referee for administration of the admonishment. A grievance committee report and finding of minor misconduct or the board of governors, on review of the report, may direct the respondent to appear before the board of governors or the grievance committee for administration of the admonishment. A memorandum of administration of an admonishment will be made a part of the record of the proceeding after the admonishment is administered.
(c) Probation.(2) Probation. The respondent may be placed on probation for a stated period of time between 6 months and 5 years or for an indefinite period determined by conditions stated in the order. The judgment will state the conditions of the probation, which may include, but are not limited to, the following:
(1A) completion of a practice and professionalism enhancement program as provided elsewhere in these rules;
(2B) supervision of all or part of the respondent’s work by a member of The Florida Bar;
(3C) required reporting to a designated agency;
(4D) satisfactory completion of a course of study or a paper on legal ethics approved by the Supreme Court of Florida;
(5E) supervision over fees and trust accounts as the court directs; or
(6F) restrictions on the ability to advertise legal services, either in type of advertisement or a general prohibition for a stated period of time, in cases in which rules regulating advertising have been violated or the legal representation in which the misconduct occurred was obtained by advertising.
The respondent will reimburse the bar for the costs of supervision. The respondent may be punished for contempt on petition by The Florida Bar, as provided elsewhere in these Rules Regulating The Florida Barrules, on failure of a respondent to comply with the conditions of the probation or a finding of probable cause as to conduct of the respondent committed during the period of probation. An order of the courtSupreme Court of Florida imposing sanctions for contempt under this rule may also terminate the probation previously imposed.
(d) Public Reprimand.(3) Public Reprimand. A public reprimand will be administered in the manner prescribed in the judgment but all reprimands will be reported in the Southern Reporter. The bar will provide due notice to the respondent of any proceeding set to administer the reprimand. The respondent must appear personally before the Supreme Court of Florida, the board of governors, any judge designated to administer the reprimand, or the referee, if required, and this appearance will be made a part of the record of the proceeding.
(e) Suspension.(4) Suspension. The respondent may be suspended from the practice of law for a period of time to be determined by the conditions imposed by the judgment or order or until further order of the court. During this suspension, the respondent continues to be a member of The Florida Bar but without the privilege of practicing. A suspension of 90 days or less does not require proof of rehabilitation or passage of the Florida bar examination, and the respondent will become eligible for all privileges of members of The Florida Bar on the expiration of thewhen the period of suspension expires. A suspension of more than 90 days requires proof of rehabilitation and may require passage of all or part of the Florida bar examination, and the respondent will not become eligible for all privileges of members of The Florida Bar until the courtSupreme Court of Florida enters an order reinstating the respondent to membership in The Florida Bar. No suspension will be ordered for a specific period of time more than 3 years.
An order or opinion imposing a suspension of 90 days or less will include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until the end of the term of the suspension and will provide that the suspension is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients, unless the court orders otherwise.
An order or opinion imposing a suspension of more than 90 days will include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until the date of the court’s order of reinstatement and will provide that the suspension is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients, unless the court orders otherwise.
(f) Disbarment.(5) Disbarment. A judgment of disbarment terminates the respondent’s status as a member of the bar. Permanent disbarment precludes readmission. A former member who has not been permanently disbarred may only be admitted again on full compliance with the rules and regulations governing admission to the bar. Except as otherwise provided in these rules, no application for readmission may be tendered within 5 years after the date of disbarment or a longer period ordered by the court in the disbarment order or at any time after that date until all court-ordered restitution and outstanding disciplinary costs have been paid. No application for readmission may be filed after a Supreme Court of Florida order of permanent disbarment.
Disbarment is the presumed sanction for lawyers found guilty of theft from a lawyer’s trust account or special trust funds received or disbursed by a lawyer as guardian, personal representative, receiver, or trustee. A respondent found guilty of theft will have the opportunity to offer competent, substantial evidence to rebut the presumption that disbarment is appropriate.
Unless waived or modified by the court on motion of the respondent, an order or opinion imposing disbarment will include a provision that prohibits the respondent from accepting new business from the date of the order or opinion and will provide that the disbarment is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.
(g) Disciplinary Revocation.(6) Disciplinary Revocation. A disciplinary revocation is tantamount to a disbarment. A respondent may petition for disciplinary revocation in lieu of defending against allegations of disciplinary violations. If accepted by the Supreme Court of Florida, a disciplinary revocation terminates the respondent’s status as a member of the bar. A former bar member whose disciplinary revocation has been accepted may only be admitted again on full compliance with the rules and regulations governing admission to the bar. Like disbarment, disciplinary revocation terminates the respondent’s license and privilege to practice law and requires readmission to practice under the Rules of the Supreme Court Relating to Admissions to the Bar. No application for readmission may be tendered until the later of 5 years after the date of the order of the Supreme Court of Florida granting the petition for disciplinary revocation, or another period of time in excess of 5 years contained in that order. No application for readmission may be tendered after a Supreme Court of Florida order granting disciplinary revocation without leave to apply for readmission.
(h) Notice to Clients. Unless the court orders otherwise, when the respondent is served with an order of disbarment, disbarment on consent, disciplinary revocation, suspension, emergency suspension, emergency probation, or placement on the inactive list for incapacity not related to misconduct, the respondent must immediately furnish a copy of the order to all:
(1) clients of the respondent with matters pending in the respondent’s practice;
(2) opposing counsel or co-counsel in the matters listed in (1), above;
(3) courts, tribunals, or adjudicative agencies before which the respondent is counsel of record; and
(4) state, federal, or administrative bars of which respondent is a member.
Within 30 days after service of the order, the respondent must furnish bar counsel with a sworn affidavit listing the names and addresses of all persons and entities that have been furnished copies of the order.
(ib) Forfeiture of Fees. An order of the Supreme Court of Florida or a report of minor misconduct adjudicating a respondent guilty of entering into, charging, or collecting a fee prohibited by the Rules Regulating The Florida Bar may order the respondent to forfeit all or any part of the fee. In the case of a clearly excessive fee, the excessive amount of the fee may be ordered returned to the client, and a fee otherwise prohibited by the Rules Regulating The Florida Bar may be ordered forfeited to The Florida Bar Clients’ Security Fund and disbursed in accordance with its rules and regulations.
(jc) Restitution. In addition to any of the foregoing disciplinary sanctions authorized elsewhere in these rules, the respondent may be ordered or agree to pay restitution to a complainant or other person if the disciplinary order finds that the respondent has received a clearly excessive, illegal, or prohibited fee, or that the respondent has converted trust funds or property. The amount of restitution will be specifically set forth in the disciplinary order or agreement. Restitution for an excessive fee will not exceed the amount by which that fee is clearly excessive. Restitution for a prohibited or illegal fee will not exceed the amount of the fee. Restitution for a conversion will not exceed the amount of the conversion established in disciplinary proceedings. Restitution may include interest as allowed by law. The disciplinary order or agreement must state to whom restitution must be made and the date by which it must be completed. Failure to comply with the order or agreement will cause the respondent to become a delinquent member and will not preclude further proceedings under these rules. The respondent must provide the bar with telephone numbers and current addresses of all individuals or entities to whom the respondent is ordered to pay restitution.
(d) Effect of Disbarment, Disciplinary Revocation, Suspension, and Inactive Status for Incapacity.
(1) Unless the Florida Supreme Court orders otherwise, when the respondent is served with an order of disbarment, disbarment on consent, disciplinary revocation, suspension, or placement on the inactive list for incapacity not related to misconduct, the respondent must immediately:
(A) accept no new clients from the date of the court’s order;
(B) initiate no litigation on behalf of clients from the date of the court’s order;
(C) provide a copy of the court’s order to all courts, tribunals, or adjudicative agencies before which the respondent is counsel of record; all state, federal, or administrative bars of which respondent is a member; and all of the respondent’s current clients, co-counsel, and opposing counsel;
(D) cease withdrawing or disbursing any money from any trust account or other financial institution account holding funds of clients or third parties in respondent’s possession in connection with legal representation or funds of third parties in connection with respondent’s service as a fiduciary including, but not limited to, personal representative, guardian, or trustee, until further order of the court, a judicial referee appointed by the court, or the circuit court in an inventory lawyer proceeding instituted under these rules;
(E) not transfer any ownership of any real or personal property purchased in whole or in part with funds of clients or third parties in connection with legal representation or with funds of third parties in connection with respondent’s service as a fiduciary including, but not limited to, personal representative, guardian, or trustee, without approval of the court, a judicial referee appointed by the court, or the circuit court in an inventory attorney proceeding instituted under these rules;
(F) cease making any transactions into or out of any account for which the respondent is serving as a fiduciary, including, but not limited to, as a lawyer, personal representative, guardian, or trustee, unless otherwise ordered by the court;
(G) provide a copy of the court’s order to all banks and financial institutions where the respondent maintains any account holding funds of clients or third parties in respondent’s possession in connection with representation or funds of third parties in connection with respondent’s service as a fiduciary including, but not limited to, personal representative, guardian, or trustee;
(H) comply with, and provide all documents and testimony responsive to, a subpoena from the bar for trust account records and any related documents necessary for the bar to conduct a trust account audit;
(I) authorize any referee appointed in these proceedings to determine entitlement to funds in any trust accounts frozen as a result of an order entered in this matter;
(J) turn over to any successor the complete financial records of any estate, guardianship, or trust in which respondent served as a fiduciary on the successor’s appointment; and
(K) cease holding out as a Florida Bar member or eligible to practice Florida law.
(2) Unless the Florida Supreme Court orders otherwise, within 30 days from the date of the court’s order of disbarment, disbarment on consent, disciplinary revocation, suspension, emergency suspension, or placement on the inactive list for incapacity not related to misconduct, the respondent must:
(A) cease all practice of law in Florida;
(B) cease representation of all clients;
(C) close out the respondent’s practice;
(D) cease acting as a fiduciary, including, but not limited to, personal representative, guardian, or trustee;
(E) provide the bar’s staff counsel with an affidavit listing all of the following that respondent notified of the court’s order: all courts, tribunals, or adjudicative agencies of which respondent is a member; all state, federal, or administrative bars of which respondent is a member; all clients; all co-counsel; and all opposing counsel;
(F) provide bar counsel in the case with an affidavit listing each bank or financial institution respondent provided with a copy of the court’s order; and
(G) notify bar counsel in the case of the receipt and location of any fees or other sums received in connection with the practice of law or in connection with respondent’s service as a fiduciary, including, but not limited to, personal representative, guardian, or trustee, received by respondent after issuance of the court’s order.
RULE 3-5.2 EMERGENCY SUSPENSION; AND INTERIM PROBATION; INTERIM PLACEMENT ON THE INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT; AND FREEZING TRUST ACCOUNTS
(a) Emergency Suspension.
(1) Great Public Harm. The Supreme Court of Florida may issue an order suspending the lawyer on an emergency basis on petition of The Florida Bar, authorized by its president, president-elect, or executive director and supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that a lawyer appears to be causing great public harm.
(2) Discipline by Foreign Jurisdiction. The Supreme Court of Florida may issue an order suspending the lawyer on an emergency basis under this chapter on petition of The Florida Bar, authorized by its president, president-elect, or executive director and supported by a certified copy of an order of a foreign disciplinary jurisdiction suspending or disbarring a lawyer from the practice of law.
(3) Formal Complaint, Answer, and Defenses. A petition for emergency suspension also constitutes a formal complaint. The respondent has 20 days after docketing by the Supreme Court of Florida of its order granting the bar’s petition for emergency suspension in which to file an answer and any affirmative defenses to the bar’s petition.
(4) Appointment of Referee. The Supreme Court of Florida will promptly appoint or direct the appointment of a referee on entry of an order of suspension.
(5) New Cases and Existing Clients. Any emergency suspension order issued under this subdivision immediately precludes the lawyer from accepting any new cases and, unless otherwise ordered, permits the lawyer to continue to represent existing clients for only the first 30 days after issuance of an emergency order. Any fees paid to the suspended lawyer during the 30-day period must be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court.
(6) Motions for Dissolution. The lawyer may move at any time to dissolve or amend an emergency order by motion filed with the Supreme Court of Florida, unless the bar has demonstrated, through a hearing or trial, the likelihood of prevailing on the merits on any of the underlying violations of the Rules Regulating The Florida Bar. The lawyer must serve a copy of the motion on bar counsel. The motion will not stay any other proceedings or applicable time limitations in the case and will immediately be assigned to a referee designated by the chief justice, unless the motion fails to state good cause or is procedurally barred as an invalid successive motion. The filing of the motion will not stay the operation of an emergency suspension order entered under this subdivision.
(7) Successive Motions Prohibited. The Supreme Court of Florida will summarily dismiss any successive motions for dissolution that raise issues that were, or with due diligence could have been, raised in a prior motion.
(8) Hearing on Petition to Terminate or Modify Suspension. The referee will hear a motion to terminate or modify a suspension imposed under this subdivision within 7 days of assignment and submit a report and recommendation to the Supreme Court of Florida in an electronic format approved by the supreme court within 7 days of the hearing date. The referee will recommend dissolution or amendment, whichever is appropriate, if the bar cannot demonstrate a likelihood of prevailing on the merits on at least 1 of the underlying violations of the Rules Regulating The Florida Bar that establishes the respondent is causing great public harm.
(9) Review by the Supreme Court of Florida. The Supreme Court of Florida will review and act on the referee’s findings and recommendations on receipt of the referee’s report on the motion for dissolution or amendment. Briefing schedules following the petition for review are as set forth in subchapter 3-7 of these rules.
(10) Hearings on Issues Raised in Petitions for Emergency Suspension and Sanctions. Once the Supreme Court of Florida has granted a petition for emergency suspension under this subdivision, the referee appointed by the court will hear the matter in the same manner as provided in rule 3-7.6, except that the referee will hear the matter after the lawyer charged has answered the charges in the petition for emergency suspension or when the time has expired for filing an answer. The referee will issue a final report and recommendation in an electronic format approved by the supreme court within 90 days of appointment. If the time limit specified in this subdivision is not met, that portion of an emergency suspension order will be automatically dissolved, except on order of the Supreme Court of Florida, provided that any other appropriate disciplinary action on the underlying conduct still may be taken.
(b) Petition for Interim Probation or Interim Placement on the Inactive List for Incapacity Not Related to Misconduct.
(1) Petition. The Supreme Court of Florida may issue an order placing a lawyer on interim probation under the conditions provided in rule 3-5.1 or placing the lawyer on the inactive list for incapacity not related to misconduct as provided elsewhere in this chapter on petition of The Florida Bar, authorized by its president, president-elect, or executive director and supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that conditions or restrictions on a lawyer’s privilege to practice law in Florida are necessary to protect the public.
(2) Formal Complaint, Answer, and Defenses. The petition also constitutes the formal complaint. The respondent has 20 days after docketing by the Supreme Court of Florida of its order granting the bar’s petition for interim probation in which to file an answer and any affirmative defenses to the bar’s petition.
(3) Appointment of Referee. The Supreme Court of Florida will promptly appoint or direct the appointment of a referee on entry of an order of interim probation.
(4) New Cases and Existing Clients. Any order placing a lawyer on the inactive list for incapacity not related to misconduct under this subdivision immediately precludes the lawyer from accepting any new cases and, unless otherwise ordered, permits the lawyer to continue to represent existing clients for only the first 30 days after issuance of the order. Any fees paid to the lawyer during the 30-day period must be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court. An order placing the lawyer on interim probation under this subdivision may preclude the lawyer from accepting new cases either immediately or during a time specified in the order and may require that the lawyer deposit any fees paid to the lawyer during a specified time period in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the order.
(54) Hearings on Issues Raised in Petitions for Interim Probation. Once the Supreme Court of Florida has granted a petition for interim probation under this rule, the referee appointed by the court will hear the matter in the same manner as provided in rule 3-7.6, except that the referee will hear the matter after the lawyer charged has answered the charges in the petition for interim probation or when the time has expired for filing an answer. The referee will issue a final report and recommendation in an electronic format approved by the supreme court within 90 days of appointment. If the time limit specified in this subdivision is not met, that portion of an emergency order imposing an interim probation will be automatically dissolved, except on order of the Supreme Court of Florida, provided that any other appropriate disciplinary action on the underlying conduct still may be taken.
(65) Review by the Supreme Court of Florida. The Supreme Court of Florida will review and act on the referee’s findings and recommendations regarding interim probations on receipt of the referee’s report. Briefing schedules following the petition for review are as set forth in subchapter 3-7 of these rules.
(c) Trust Accounts.
(1) Effect of Order Restricting Lawyer Trust Account. Any order of emergency suspension, or interim probation, or interim placement on the inactive list that restricts the lawyer in maintaining a trust account will be served on the respondent and any bank or other financial institution maintaining an account against which the respondent may make withdrawals. The order enjoins the bank or financial institution from making further payment from the trust account or accounts on any obligation, except in accordance with restrictions imposed by the court through subsequent orders issued by a court-appointed referee. Bar counsel will serve a copy of the Supreme Court of Florida’s order freezing a lawyer’s trust account via first class mail on any bank in which the respondent’s trust account is held. Procedures relating to frozen trust accounts are held in accordance with the rule on frozen trust accounts are set forth elsewhere in this subchapter.
(2) Appointment of Referee. The Supreme Court of Florida will promptly appoint or direct the appointment of a referee on determination that funds have been misappropriated from a lawyer’s trust account as provided above.
(3) Referee’s Authorization and Claims to Trust Funds. The court’s order appointing a referee under this rule may authorize the referee to determine entitlement to funds in the frozen trust account. Any client or third party claiming entitlement to funds in the frozen trust account must file a petition requesting release of frozen trust account funds with the referee appointed in the case, accompanied by proof of entitlement to the funds.
(4) Notice by Bar. The bar will provide information to the appointed referee from bar audits and other existing information regarding persons claiming entitlement to frozen trust account funds. The bar will notify persons known to bar staff in writing via regular first class mail of their possible interest in funds contained in the frozen trust account. The notices will include a copy of the form of a petition requesting release of frozen trust account funds to be filed with the referee and instructions for completing the form. The bar will publish in the local county or city newspaper published where the lawyer practiced before suspension a notice informing the public that the lawyer’s trust account has been frozen and those persons with claims on the funds should contact listed bar counsel within 30 days after publication whenever possible.
(5) Appointment and Payment of Receiver. The referee may appoint a receiver to determine the persons rightfully entitled to the frozen trust account funds if there are no responses to the notices mailed and published by the bar within 90 days from the date of the notice or if the amount in the frozen trust account is over $100,000. The receiver will be paid from the corpus of the trust funds unless the referee orders otherwise.
(6) Summary Proceedings. The referee will unfreeze trust account funds if the amount in the frozen trust account is $5,000 or less and no persons with potential entitlement to frozen trust account funds respond to the bar’s mailed or published notices within 90 days from the date of the notice.
(7) Referee Review of Frozen Trust Account Petitions. The referee determines when and how to pay the claim of any person entitled to funds in the frozen trust account after reviewing the bar’s audit report, the lawyer’s trust account records, the petitions filed, or the receiver’s recommendations. The referee may hold a hearing if the bar’s audit report or other reliable evidence shows that funds have been stolen or misappropriated from the lawyer’s trust account. Subchapter 3-7 will not apply to a referee hearing under this rule. No pleadings may be filed other than petitions requesting release of frozen trust account funds. The parties to this referee proceeding are those persons filing a petition requesting release of frozen trust account funds. The bar is not a party to the proceeding. The referee’s order is the final order in the matter unless one of the parties petitions for review of the referee’s order to the Supreme Court of Florida. The sole issue before the referee is determination of entitlement to the frozen trust account funds. The referee determines the percentage of monies missing from the respondent’s trust account and the amounts owing to those petitioners requesting release of frozen trust account funds. The referee will order a pro rata distribution if there are insufficient funds in the account to pay all claims in full.
(8) Separate Funds in Frozen Trust Accounts. The referee will order return of any separate funds to their rightful owner(s) in full on the filing of a petition requesting release of frozen trust account funds with proof of entitlement to the funds. Separate funds are monies deposited into the respondent’s trust account after the misappropriation, which are not affected by the misappropriation, and funds that have been placed into a separate segregated individual trust account under the individual client’s tax identification number.
(9) Review by Supreme Court of Florida. The referee’s final order on distribution of frozen trust account funds is subject only to direct petition for review by a party claiming entitlement to the frozen trust account funds. The petition for review must be filed within 60 days of the referee’s final order. Briefing schedules after the petition for review is filed are set forth in subchapter 3-7 of these rules.
(d) Proceedings in the Supreme Court of Florida. The Supreme Court of Florida will expedite consideration of the referee’s report and recommendation regarding emergency suspension and interim probation. The chief justice will schedule oral argument as soon as practicable, if granted.
(e) Waiver of Time Limits. The respondent may, at any time, waive the time requirements set forth in this rule by written request made to and approved by the referee assigned to hear the matter.
RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS
(a) Authority of Board. The board of governors is authorized to establish practice and professionalism enhancement programs to which eligible disciplinary cases may be diverted as an alternative to disciplinary sanction.
(b) Types of Disciplinary Cases Eligible for Diversion. Disciplinary cases that otherwise would be disposed of by a finding of minor misconduct or by a finding of no probable cause with a letter of advice are eligible for diversion to practice and professionalism enhancement programs.
(c) Limitation on Diversion. A respondent who has been the subject of a prior diversion is not eligible for diversion for the same type of rule violation for a period of 5 years after the earlier diversion. A respondent who has been the subject of a prior diversion and then is alleged to have violated a completely different type of rule at least 1 year after the initial diversion will be eligible for a practice and professionalism enhancement program. The calculation of the time period for eligibility begins when the respondent accepts diversion and ends when the respondent’s other misconduct is reported to the bar.
(d) Approval of Diversion of Cases at Staff or Grievance Committee Level Investigations. The bar will not offer a respondent the opportunity to divert a disciplinary case that is pending at staff or grievance committee level investigations to a practice and professionalism enhancement program unlessonly if staff counsel or staff counsel’s designee, the grievance committee chair, and the designated reviewer concur.
(e) Contents of Diversion Recommendation. If a diversion recommendation is approved as provided in subdivision (d), theAn approved diversion recommendation must state theall practice and professionalism enhancement program(s)programs to which the respondent will be diverted,the general purpose for the diversion, and the diversion fees costs to be paid by the respondent must pay.
(f) Service of Recommendation on and Review by Respondent. If a diversion recommendation is approved as provided in subdivision (d), the bar must serve thean approved diversion recommendation on the respondent, who may accept or reject a diversion recommendation in the same manner as provided for review of recommendations of minor misconduct. The respondent does not have thehas no right to reject any specific requirement of a practice and professionalism enhancement program.
(g) Effect of Rejection of Recommendation by Respondent. If a respondent rejects a diversion recommendation, the matter will be returned for further proceedings under these rules.
(h) Diversion Before Formal Complaint is Filed. The procedures for approval of consent judgments provided elsewhere in these rules apply to diversion before the filing of a formal complaint.
(i) Diversion at Trial Level.
(1) Agreement of the Parties. A referee may recommend diversion of a disciplinary case to a practice and professionalism enhancement program if the bar approves diversion and the respondent agrees. The procedures for approval of conditional pleas provided elsewhere in these rules apply to diversion at the trial level.
(2) After Submission of Evidence. A referee may recommend diversion of a disciplinary case to a practice and professionalism enhancement program if, after submission of evidence, but before a finding of guilt, the referee determines that, if proven, the conduct alleged to have been committed by the respondent is not more serious than minor misconduct.
(3) Costs ofFees for Practice and Professionalism Enhancement Program. A referee’s recommendation of diversion to a practice and professionalism enhancement program must state the diversion fees costs to be paid by the respondent must pay.
(4) Appeal of Diversion Recommendation. The respondent and the bar have the right to appeal a referee’s diversion recommendation of diversion, except for a diversion agreed to under subdivision (i)(1).
(5) Authority of Referee to Refer a Matter to a Practice and Professionalism Enhancement Program. Nothing in this rule precludes a referee from referring a disciplinary matter to a practice and professionalism enhancement program as a part of a disciplinary sanction.
(j) Effect of Diversion. When the recommendation of diversion becomes final, the respondent must enter and complete all requirements of the practice and professionalism enhancement program(s) and complete their requirements. The bar then will terminates its investigation into the matter and closes its disciplinary files indicating the diversion on a respondent’s entry into a practice and professionalism enhancement program. Diversion into the practice and professionalism enhancement program is not a disciplinary sanction.
(k) Effect of Completion of the Practice and Professionalism Enhancement Program. The bar’s file will remain closed if a respondent successfully completes all requirements of the practice and professionalism enhancement program(s) to which the respondent is diverted.
(l) Effect of Failure to Complete the Practice and Professionalism Enhancement Program. The bar may reopen its disciplinary file and conduct further proceedings under these rules if a respondent fails to complete all requirements of the practice and professionalism enhancements program(s) to which the respondent is diverted, including payment of associated costsfees. Failure to complete the practice and professionalism enhancement program is an aggravating factor when imposing a disciplinary sanction.
(m) Costs ofFees for Practice and Professionalism Enhancement Programs. The Florida Bar will annuallyperiodically determines the costsfees of practice and professionalism enhancement programs and publish the amount of the costs to be assessed against and paid by a respondent must pay.
Comment
As to subdivision (c) of 3-5.3, a lawyer who agreed to attend the Advertising Workshop in 1 year would not be eligible for another diversion for an advertising violation for a period of 5 years following the first diversion. However, that same lawyer would be eligible to attend the Advertising Workshop 1 year and then attend a Trust Account Workshop for a completely different violation 1 year after the first diversion is completed.
3-7. PROCEDURES
RULE 3-7.2 PROCEDURES ON CRIMINAL OR PROFESSIONAL MISCONDUCT; DISCIPLINE ON DETERMINATION OR JUDGMENT OF GUILT OF CRIMINAL MISCONDUCT; DISCIPLINE ON REMOVAL FROM JUDICIAL OFFICE
(a) Definitions.
(1) Judgment of Guilt. For the purposes of these rules, “judgment of guilt” includes only those cases in which the trial court in the criminal proceeding enters an order adjudicating the respondent guilty of the offense(s) charged.
(2) Determination of Guilt. For the purposes of these rules, “determination of guilt” includes those cases in which the trial court in the criminal proceeding enters an order withholding adjudication of the respondent’s guilt of theany offense(s) charged, those cases in which the convicted lawyer has entered a plea of guilty to criminal charges, those cases in which the convicted lawyer has entered a no contest plea to criminal charges, those cases in which the jury has rendered a verdict of guilty of criminal charges, and those cases in which the trial judge in a bench trial has rendered a verdict of guilty of criminal charges.
(3) Convicted Lawyer. For the purposes of these rules, “convicted lawyer” means a lawyer who has had either a determination or judgment of guilt entered by the trial court in the criminal proceeding.
(b) Determination or Judgment of Guilt, Admissibility; Proof of Guilt. Determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction on trial of or plea to any crime under the laws of this state, or under the laws under which any other court making the determination or entering the judgment exercises its jurisdiction, is admissible in proceedings under these rules and is conclusive proof of guilt of the criminal offense(s) charged for the purposes of these rules.
(c) Notice of Institution of Felony Criminal Charges. Any member of The Florida Bar who is the subject of a felony criminal charge must notify the executive director of The Florida Bar of the charges within 10 days of the filing of the indictment or information and include a copy of the indictment or information.
If the state attorney whose office is assigned to a felony criminal case is aware that the defendant is a member of The Florida Bar, theThe state attorney whose office is assigned to the case must provide a copy of the indictment or information to the executive director of The Florida Bar within 10 days of its entry if the state attorney is aware the defendant is a member of The Florida Bar .
(d) Notice of Determination or Judgment of Guilt of Felony Charges.
(1) Trial Judge. The trial judge must provide a certified copy of the determination or judgment of guilt of a felony offense to the executive director of The Florida Bar within 10 days of its entry.
(2) Clerk of Court. The clerk of that court must provide a certified copy of the determination or judgment of guilt of a felony offense to the executive director within 10 days of its entry.
(3) State Attorney. The state attorney whose office is assigned that case must provide a copy of the documents evidencing the determination or judgment of guilt of a felony offense to the executive director if the state attorney is aware that the defendant is a member of The Florida Bar.
(e) Notice of Self-Reporting by Members of Determination or Judgment of Guilt of All Criminal Charges. A member of The Florida Bar must provide a copy of theany document(s) entering a determination or judgment for any criminal offense against that member entered on or after August 1, 2006 to the executive director within 10 days of its entry.
(f) Suspension by Judgment of Guilt (Felonies). The Florida Bar will file a “Notice of Determination or Judgment of Guilt” or a consent judgment for disbarment or disciplinary revocation in the Supreme Court of Florida on receiving notice that a member of the bar has been determined to be or adjudicated guilty of a felony. A copy of theany document(s) on which the determination or judgment is based must be attached to the notice. The respondent is suspended as a member of The Florida Bar as defined in rule 3-5.1(e) on filing of the notice with the Supreme Court of Florida and service of the notice on the respondent.
(g) Petition to Modify or Terminate Suspension. The respondent may file a petition with the Supreme Court of Florida to modify or terminate suspension at any time after the filing of a notice of determination or judgment of guilt. The respondent must serve a copy of the petition on the executive director. The suspension imposed under the authority of this rule will not be stayed by filing a petition to modify or terminate suspension.
(h) Appointment of Referee. The Supreme Court of Florida will promptly appoint or direct the appointment of a referee on the entry of an order of suspension as provided above.
(1) Hearing on Petition to Terminate or Modify Suspension. The referee must hear a petition to terminate or modify a suspension imposed under this rule within 7 days of appointment and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing. The referee will recommend termination or modification of the suspension only if the suspended member can demonstrate that the member is not the convicted person or that the criminal offense is not a felony.
(2) Hearing on Sanctions. The referee may also hear argument concerning the appropriate sanction to be imposed and file a report and recommendation with the supreme court in the same manner and form as provided in rule 3-7.6(m) of these rules. The hearing must be held and a report and recommendation filed with the supreme court within 90 days of assignment as referee.
(3) Challenge to Sanctions. The respondent may challenge the imposition of a sanction only on the grounds of mistaken identity or whether the conduct involved constitutes a felony under applicable law. The respondent may present relevant character evidence and relevant matters of mitigation regarding the proper sanction to be imposed. The respondent cannot contest the findings of guilt in the criminal proceedings. A respondent who entered a plea in the criminal proceedings is allowed to explain the circumstances concerning the entry of the plea for purposes of mitigation.
(4) Review of Referee Report and Recommendation. The report and recommendations of the referee may be reviewed in the same manner as provided in rule 3-7.7 of these rules.
(i) Use of Expunged or Sealed Records. The Florida Bar may use sealed or expunged arrest or court records of a Florida Bar member in a disciplinary proceeding in the bar’s possession or obtainable by the bar regardless of the record’s expunction or sealing.
(ij) Appeal of Conviction. The suspension will remain in effect during any appeal of the determination or judgment of guilt of a felony offense in the criminal proceeding. The suspension will remain in effect until the final disposition of the criminal cause if remanded for further proceedings and until the respondent’s civil rights have been restored and the respondent has been reinstated unless modified or terminated by the Supreme Court of Florida as elsewhere provided.
(jk) Expunction. The Supreme Court of Florida may expunge a sanction entered under this rule when a final disposition of the criminal cause has resulted in acquittal or dismissal on motion of the respondent. A respondent who is the subject of a sanction that is expunged under this rule may lawfully deny or fail to acknowledge the sanction, except when the respondent is a candidate for election or appointment to judicial office, or as otherwise required by law.
(kl) Waiver of Time Limits. The respondent may waive the time requirements set forth in this rule by written request made to and approved by the referee or supreme courtthe Supreme Court of Florida.
(l)(m) Professional Misconduct in Foreign Jurisdiction.
(1) Notice of Discipline by a Foreign Jurisdiction. A member of The Florida Bar must file a copy of any order or judgment by a court or other authorized disciplinary agency of another state or by a federal court effecting a disciplinary resignation, disciplinary revocation, disbarment, or suspension or any other surrender of the member’s license to practice law in lieu of discipline with the Supreme Court of Florida and the executive director of The Florida Bar within 30 days of its effective date.
(2) Effect of Adjudication or Discipline by a Foreign Jurisdiction. The Supreme Court of Florida may issue an order suspending the member who is the subject of the final adjudication on an emergency basis petition of The Florida Bar attaching a copy of the final adjudication by a foreign court or disciplinary authority. All of the conditions not in conflict with this rule applicable to issuance of emergency suspension orders elsewhere within these Rules Regulating The Florida Bar are applicable to orders entered under this rule.
(mn) Discipline on Removal from Judicial Office.
(1) Notice of Removal. The clerk of the Supreme Court of Florida will forward a copy of any order removing a member of The Florida Bar from judicial office for judicial misconduct to the executive director of The Florida Bar.
(2) Filing of Formal Complaint. The Florida Bar may file a formal complaint with the Supreme Court of Florida and seek appropriate discipline on receipt of an order removing a member from judicial office for judicial misconduct.
(3) Admissibility of Order; Conclusive Proof of Facts. The order of removal is admissible in proceedings under these rules and is conclusive proof of the facts on which the judicial misconduct was found by the Supreme Court of Florida.
(4) Determination of Lawyer Misconduct. The issue of whether the facts establishing the judicial misconduct also support a finding of lawyer misconduct are determined by the referee based on the record of the proceedings.
RULE 3-7.4 GRIEVANCE COMMITTEE PROCEDURES [other amendments to this rule have been approved by the DPC, so only an excerpt is provided to avoid confusion]
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(l) Preparation, Forwarding, and Review of Grievance Committee Complaints. If a grievance committee or the board of governors finds probable cause, the bar counsel assigned to the committee must promptly prepare a record of its investigation and a formal complaint. The record before the committee consists of all reports, correspondence, papers, or recordings provided to or received from the respondent, and the transcript of grievance committee meetings or hearings, if the proceedings were attended by a court reporter. The committee may retire into executive session to debate the issues involved and decide the action to be taken. The formal complaint must be approved by the member of the committee who presided in the proceeding. The board prescribes the form of formal complaints. If the presiding member of the grievance committee disagrees with the form of the complaint, the presiding member may direct bar counsel to make changes. If bar counsel does not agree with the changes, the matter is referred to the designated reviewer of the committee for appropriate action. When a formal complaint by a grievance committee is not referred to the designated reviewer, or is not returned to the grievance committee for further action, theBar counsel must promptly forward the formal complaint must be promptly forwarded to and reviewed byto staff counsel for review. Staff counsel must review and file the formal complaint and provide a copy to the respondent or respondent’s counsel. Staff counsel must request the Chief Justice of the Supreme Court of Florida to assign a referee or to order the chief judge of the appropriate circuit to assign a referee to try the case. A copy of the record will be made available to the respondent at the respondent’s expense.
RULE 3-7.5 PROCEDURES BEFORE THE BOARD OF GOVERNORS
(a) Review by the Designated Reviewer. NoticeBar counsel will give the designated reviewer notice of grievance committee action recommending either diversion to a practice and professionalism enhancement program or finding no probable cause, no probable cause with a letter of advice, minor misconduct, or probable cause will be given to the designated reviewer for review. The designated reviewer may request grievance committee reconsideration or refer the matter to the disciplinary review committee of the board of governors within 30 days of notice of grievance committee action by notifying bar counsel in the matter. The request for grievance committee reconsideration or referral to the disciplinary review committee must be in writing and must be submitted to bar counsel. For purposes of this subdivision, letters, memoranda, handwritten notes, facsimile documents, and e-mail constitute communication “in writing.”
(1) Requests for Grievance Committee Reconsideration. If the designated reviewer requests grievance committee reconsideration, bar counsel forwards the request to the chair of the grievance committee and gives notice to the respondent and complainant that the request has been made. If the grievance committee agrees to reconsider the matter, the rule prescribing procedures before a grievance committee applies.
(2) Referrals to Disciplinary Review Committee and Board of Governors. If the designated reviewer refers the matter to the disciplinary review committee, bar counsel prepares and submits a discipline agenda item for consideration by the committee. Bar counsel must give notice to respondent and complainant that the designated reviewer has made the referral for review.
(3) Nature of Disciplinary Review Committee and Board of Governors Review. The Florida Bar is a party in disciplinary proceedings and has no authority to adjudicate rights in those proceedings. Any review on referral from a designated reviewer is consultation on pending litigation and is not subject to intervention by persons outside the relationship between the bar and its counsel.
(4) Effect of Failure to Timely Make the Request for Reconsideration or Referral for Review. If the designated reviewer fails to make the request for reconsideration or referral within the time prescribed, the grievance committee action becomes final.
(5) Authority of Designated Reviewer to Make Recommendations. When the designated reviewer makes a request for reconsideration or referral for review, the designated reviewer may recommend:
(A) referral of the matter to the grievance mediation program;
(B) referral of the matter to the fee arbitration program;
(C) closure of the disciplinary file by diversion to a component of the practice and professionalism enhancement program;
(D) closure of the disciplinary file by the entry of a finding of no probable cause;
(E) closure of the disciplinary file by the entry of a finding of no probable cause with a letter of advice;
(F) a finding of minor misconduct; or
(G) a finding of probable cause that further disciplinary proceedings are warranted.
(b) Review of Grievance Committee Matters. The disciplinary review committee reviews those grievance committee matters referred to it by a designated reviewer and reports to the board. The disciplinary review committee may confirm, reject, or amend the recommendation of the designated reviewer in whole or in part. The report of the disciplinary review committee is final unless overruled by the board. Recommendations of the disciplinary review committee may include:
(1) referral of the matter to the grievance mediation program;
(2) referral of the matter to the fee arbitration program;
(3) closure of the disciplinary file by diversion to a component of the practice and professionalism enhancement program;
(4) closure of the disciplinary file by the entry of a finding of no probable cause;
(5) closure of the disciplinary file by the entry of a finding of no probable cause with a letter of advice;
(6) a finding of minor misconduct; or
(7) a finding of probable cause that further disciplinary proceedings are warranted.
(c) Board Action on Review of Designated Reviewer Recommendations. On review of a report and recommendation of the disciplinary review committee, the board of governors may confirm, reject, or amend the recommendation in whole or in part. Action by the board may include:
(1) referral of the matter to the grievance mediation program;
(2) referral of the matter to the fee arbitration program;
(3) closure of the disciplinary file by diversion to a component of the practice and professionalism enhancement program;
(4) closure of the disciplinary file by the entry of a finding of no probable cause;
(5) closure of the disciplinary file by the entry of a finding of no probable cause with a letter of advice;
(6) a finding of minor misconduct; or
(7) a finding of probable cause that further disciplinary proceedings are warranted.
(d) Notice of Board Action. Bar counsel must give notice of board action to the respondent, complainant, and grievance committee.
(e) Finding of No Probable Cause. A finding of no probable cause by the board is final, and The Florida Bar may conduct no further proceedings may be conducted in the matter by The Florida Bar unless a reason arises at a later time to re-open the file.
(f) Finding of Probable Cause. Bar counsel must promptly forward the formal complaint to staff counsel for review on a finding of probable cause by the board. Staff counsel must review and file the formal complaint and provide a copy to the respondent or respondent’s counsel. Staff counsel must request the Chief Justice of the Supreme Court of Florida to assign a referee or to order the chief judge of the appropriate circuit to assign a referee to try the case.
(fg) Control of Proceedings. Bar counsel, however appointed, is subject to the direction of the board at all times. The board, in the exercise of its discretion as the governing body of The Florida Bar, has the power to terminate disciplinary proceedings before a referee prior to the receipt of evidence by the referee, whether these proceedings have been instituted on a finding of probable cause by the board or a grievance committee.
(gh) Filing Service on Board of Governors. All matters to be filed with or served on the board must be addressed to the board of governors and filed with the executive director.
(hi) Custodian of Bar Records. The executive director or histhe executive director’s designees are the custodians of theThe Florida Bar’s official records of The Florida Bar.
RULE 3-7.10 REINSTATEMENT AND READMISSION PROCEDURES
(a) Reinstatement; Applicability. A lawyer who is ineligible to practice due to a court-ordered disciplinary suspension of 91 days or more or who has been placed on the inactive list for incapacity not related to misconduct may be reinstated to membership in good standing in The Florida Bar and be eligible to practice again under this rule. The proceedings under this rule do not apply to any lawyer who is ineligible to practice law due to a delinquency as defined in rule 1-3.6 of these rules.
(b) Petitions; Form and Contents.
(1) Filing. The original petition for reinstatement must be verified by the petitioner and filed with the Supreme Court of Florida in an electronic format approved by the supreme court and in compliance with the Florida Rules of Civil Procedure and the Florida Rules of General Practice and Judicial Administration. A copy must be served on the Florida Bar’s staff counsel in compliance with applicable court rules. The petition for reinstatement may not be filed until the petitioner has completed at least 80% of the term of that lawyer’s period of suspension.
(2) Form and Exhibits. The petition must be in the form and accompanied by the exhibits provided for elsewhere in this rule. The information that may be reasonably required to determine the petitioner’s fitness to resume the practice of law may include, but is not limited to: criminal and civil judgments; disciplinary judgments; copies of income tax returns together with consents to secure original returns; occupation during suspension and employment related information; financial statements; and statement of restitution of funds that were the subject matter of disciplinary proceedings. In cases seeking reinstatement from incapacity, the petition must also include copies of all pleadings in the matter leading to placement on the inactive list and all other matters reasonably required to demonstrate the petitioner’s character and fitness to resume the practice of law.
(c) Deposit for Cost. The petition must be accompanied by proof of a deposit paid to The Florida Bar in the amount the board of governors prescribes to ensure payment of reasonable costs of the proceedings, as provided elsewhere in this rule.
(d) Reference of Petition for Hearing. The chief justice will refer the petition for reinstatement to a referee for hearing; provided, however, that no such referral will be made until evidence is submitted showing that all costs assessed against the petitioner in all disciplinary or incapacity proceedings have been paid and restitution has been made.
(e) Bar Counsel. When a petition for reinstatement is filed, the board of governors or staff counsel, if authorized by the board of governors, may appoint bar counsel to represent The Florida Bar in the proceeding. The lawyer’s duty is to appear at the hearings and to prepare and present evidence to the referee.
(f) Referee Hearing Determining Fitness. The referee to whom the petition for reinstatement is referred must conduct the hearing as a trial, in the same manner, to the extent practical, as provided elsewhere in these rules. The referee may not refer the petition to civil or grievance mediation. The referee must decide the petitioner’s fitness to resume the practice of law. In making this determination, the referee will consider whether the petitioner has engaged in any disqualifying conduct, the character and fitness of the petitioner, and whether the petitioner has been rehabilitated, as further described in this subdivision. All conduct engaged in after the date of admission to The Florida Bar is relevant in proceedings under this rule.
(1) Disqualifying Conduct. A record manifesting a deficiency in the honesty, trustworthiness, diligence, or reliability of a petitioner may constitute a basis for denial of reinstatement. The following are considered disqualifying conduct:
(A) unlawful conduct;
(B) academic misconduct;
(C) making or procuring any false or misleading statement or omission of relevant information, including any false or misleading statement or omission on any application requiring a showing of good moral character;
(D) misconduct in employment;
(E) acts involving dishonesty, fraud, deceit, or misrepresentation;
(F) abuse of legal process;
(G) financial irresponsibility;
(H) neglect of professional obligations;
(I) violation of an order of a court;
(J) evidence of mental or emotional instability;
(K) evidence of drug or alcohol dependency;
(L) denial of admission to the bar in another jurisdiction on character and fitness grounds;
(M) disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction;
(N) failure of a felony-suspended lawyer to submit proof that the affected lawyer’s civil rights have been restored;
(O) holding out as if eligible to practice in any manner including, but not limited to, use of terms such as lawyer, attorney, esquire, or counselor at law in any communication including, but not limited to, letterhead, business cards, websites, and social media; and
(P) any other conduct that adversely reflects on the character or fitness of the applicant.
(2) Determination of Character and Fitness. In addition to other factors in making this determination, the following factors will be considered in assigning weight and significance to prior conduct:
(A) age at the time of the conduct;
(B) recency of the conduct;
(C) reliability of the information concerning the conduct;
(D) seriousness of the conduct;
(E) factors underlying the conduct;
(F) cumulative effect of the conduct or information;
(G) evidence of rehabilitation;
(H) positive social contributions since the conduct;
(I) candor in the discipline and reinstatement processes; and
(J) materiality of any omissions or misrepresentations.
(3) Elements of Rehabilitation. Merely showing that an individual is now doing those things that should be done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. Any petitioner for reinstatement from discipline for prior misconduct is required to produce clear and convincing evidence of rehabilitation including, but not limited to, the following elements:
(A) strict compliance with the specific conditions of any disciplinary, judicial, administrative, or other order, where applicable;
(B) unimpeachable character and moral standing in the community;
(C) good reputation for professional ability, where applicable;
(D) lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative, or other proceeding;
(E) personal assurances, supported by corroborating evidence, of a desire and intention to conduct one’s self in an exemplary fashion in the future;
(F) restitution of funds or property, where applicable; and
(G) positive action showing rehabilitation by such things as a person’s community or civic service. Community or civic service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions.
The requirement of positive action is appropriate for persons seeking reinstatement to the bar as well as for applicants for admission to the bar because service to one’s community is an essential obligation of members of the bar.
(4) Educational Requirements.
(A) In the case of a petitioner’s ineligibility to practice for a period of 3 years or longer under this rule, the petitioner must demonstrate to the referee that the petitioner is current with changes and developments in the law:
(i) The petitioner must have completed at least 10 hours of continuing legal education courses for each year or portion of a year that the petitioner was ineligible to practice.
(ii) The petitioner may further demonstrate that the petitioner is current with changes and developments in the law by showing that the petitioner worked as a law clerk or paralegal or taught classes on legal issues during the period of ineligibility to practice.
(B) A petitioner who has been ineligible to practice for 5 years or more will not be reinstated under this rule until the petitioner has re-taken and provided proof in the lawyer’s petition for reinstatement that the lawyer has passed both the Florida portions of the Florida Bar Examination and the Multistate Professional Responsibility Examination (MPRE). The results for both exams must be valid under the Rules of the Supreme Court Relating to Admission to the Bar when the petition is filed and will remain valid for at least 3 years after the filing of the petition. A petitioner must have proof of passing all these required portions of the bar examination before that petitioner may file a petition for reinstatement under this subdivision.
(g) Hearing; Notice; Evidence.
(1) Notice. The referee to whom the petition for reinstatement is referred will fix a time and place for hearing, and notice of the hearing will be provided at least 10 days before the hearing to the petitioner, lawyers representing The Florida Bar, and other persons who may be designated by the appointed referee.
(2) Appearance. Any persons to whom notice is given, other interested persons, or local bar association may appear before the referee in support of or opposition to the petition at any hearings.
(3) Petitioner’s Failure to submit to Examination. The referee will dismiss the petition for reinstatement if the petitioner fails to submit to examination as a witness under the notice given, unless good cause is shown for the failure.
(4) Summary Procedure. Bar counsel may, with the approval of the designated reviewer and staff counsel, stipulate to the issue of reinstatement, including conditions for reinstatement if bar counsel is unable to discover any evidence on which denial of reinstatement may be based and if no other person provides any relevant evidence to deny reinstatement after discovery is completed. The stipulation must include a statement of costs as provided elsewhere in these rules.
(5) Evidence of Treatment or Counseling for Dependency or Other Medical Reasons. If the petitioner has sought or received treatment or counseling for chemical or alcohol dependency or for other medical reasons that relate to the petitioner’s fitness to practice law, the petitioner must waive confidentiality of that treatment or counseling to evaluate the petitioner’s fitness. The provisions of rule 3-7.1(d) apply to information or records disclosed under this subdivision.
(h) Prompt Hearing; Report. The referee to whom a petition for reinstatement has been referred by the chief justice will proceed to a prompt hearing, at the conclusion of which the referee will make and file with the Supreme Court of Florida a report that includes the findings of fact and a recommendation as to whether the petitioner is qualified to resume the practice of law. The referee must file the report and record in the Supreme Court of Florida.
(i) Review. Review of referee reports in reinstatement proceedings must be in accordance with rule 3-7.7.
(j) Recommendation of Referee and Judgment of the Court. If the petitioner is found unfit to resume the practice of law, the petition will be dismissed. If the petitioner is found fit to resume the practice of law, the referee will enter a report recommending, and the court may enter an order of, reinstatement of the petitioner in The Florida Bar; provided, however, that the reinstatement may be conditioned on the payment of all or part of the costs of the proceeding and on the making of partial or complete restitution to parties harmed by the petitioner’s misconduct that led to the petitioner’s suspension of membership in The Florida Bar or conduct that led to the petitioner’s incapacity. If petitioner’s suspension or incapacity has continued for more than 3 years, the reinstatement may be conditioned on proof of competency as required by the Supreme Court of Florida. Proof may include certification by the Florida Board of Bar Examiners of successful completion of an examination for admission to The Florida Bar after the date of the suspension or incapacity.
(k) Successive Petitions. No person may file a petition for reinstatement within 1 year following an adverse judgment on a petition for reinstatement filed by or on behalf of the same person. In cases of incapacity, no petition for reinstatement may be filed within 6 months after an adverse judgment under this rule.
(l) Petitions for Reinstatement to Membership in Good Standing.
(1) Availability. Petitions for reinstatement under this rule are available to members placed on the inactive list for incapacity not related to misconduct and suspended members of the bar when the disciplinary judgment conditions their reinstatement on a showing of compliance with specified conditions.
(2) Style of Petition. Petitions must be styled in the Supreme Court of Florida and filed with the Supreme Court of Florida in accordance with the court’s filing requirements, including e-filing requirements where applicable. A copy must be served on staff counsel at the bar’s headquarters address in Tallahassee.
(3) Contents of Petition. The petition must be verified by the petitioner and accompanied by a written authorization to the District Director of the Internal Revenue Service, authorizing the furnishing of certified copies of the petitioner’s tax returns for the past 5 years or since admission to the bar, whichever is greater. The authorization must be furnished on a separate sheet. The petition must have attached as an exhibit a true copy of all disciplinary judgments previously entered against the petitioner. It must also include the petitioner’s statement concerning the following:
(A) name, age, residence, address, and number and relation of dependents of the petitioner;
(B) the conduct, offense, or misconduct on which the suspension or incapacity was based, together with the date of the suspension or incapacity;
(C) the names and addresses of all complaining witnesses in any disciplinary proceedings that resulted in suspension; and the name and address of the referee or judge who heard these disciplinary proceedings or of the trial judge, complaining witnesses, and prosecuting lawyer, if suspension was based on conviction of a felony or misdemeanor involving moral turpitude;
(D) the nature of the petitioner’s occupation in detail since suspension or incapacity, with names and addresses of all partners, associates in business, and employers, if any, and dates and duration of all these relations and employments;
(E) a statement showing the approximate monthly earnings and other income of the petitioner and the sources from which all earnings and income were derived during this period;
(F) a statement showing all residences maintained during this period, with names and addresses of landlords, if any;
(G) a statement showing all the petitioner’s financial obligations, including, but not limited to, amounts claimed, unpaid, or owing to The Florida Bar Clients’ Security Fund or former clients at the date of filing of the petition, together with the names and addresses of all creditors;
(H) a statement of restitution made for any and all obligations to all former clients and the Florida Bar Clients’ Security Fund and the source and amount of funds used for this purpose;
(I) a statement showing dates, general nature, and ultimate disposition of every matter involving the petitioner’s arrest or prosecution during the period of suspension for any crime, whether felony or misdemeanor, together with the names and addresses of complaining witnesses, prosecuting lawyers, and trial judges;
(J) a statement as to whether any applications were made during the period of suspension for a license requiring proof of good character for its procurement; and, for each application, the date and the name and address of the authority to whom it was addressed, and its disposition;
(K) a statement of any procedure or inquiry, during the period of suspension, covering the petitioner’s standing as a member of any profession or organization, or holder of any license or office, that involved the censure, removal, suspension, revocation of license, or discipline of the petitioner; and, as to each, the dates, facts, and disposition, and the name and address of the authority in possession of these records;
(L) a statement as to whether any fraud charges were made or claimed against the petitioner during the period of suspension, whether formal or informal, together with the dates and names and addresses of persons making these charges;
(M) a concise statement of facts claimed to justify reinstatement to The Florida Bar;
(N) a statement showing the dates, general nature, and final disposition of every civil action in which the petitioner was either a party plaintiff or defendant, together with dates of filing of complaints, titles of courts and causes, and the names and addresses of all parties and of the trial judge or judges, and names and addresses of all witnesses who testified in this action or actions; and
(O) a statement showing what amounts, if any, of the costs assessed against the accused lawyer in the prior disciplinary proceedings against the petitioner have been paid by the petitioner and the source and amount of funds used for this purpose.
(4) Comments on Petition. On the appointment of a referee and bar counsel, copies of the petition will be furnished by the bar counsel to local board members, local grievance committees, and to other persons mentioned in this rule. Persons or groups that wish to respond must direct their comments to bar counsel. The proceedings and finding of the referee will relate to those matters described in this rule and also to those matters tending to show the petitioner’s rehabilitation, present fitness to resume the practice of law, and the effect of the proposed reinstatement on the administration of justice, purity of the courts, and confidence of the public in the profession.
(5) Costs Deposit. The petition must be accompanied by a deposit for costs of $500.
(m) Costs.
(1) Taxable Costs. Taxable costs of the proceedings must include only:
(A) investigative costs, including travel and out-of-pocket expenses;
(B) court reporters’ fees;
(C) copy costs;
(D) telephone charges;
(E) fees for translation services;
(F) witness expenses, including travel and out-of-pocket expenses;
(G) travel and out-of-pocket expenses of the referee;
(H) travel and out-of-pocket expenses of counsel in the proceedings, including the petitioner if acting as counsel; and
(I) an administrative fee in the amount of $1250 when costs are assessed in favor of the bar.
(2) Discretion of Referee. The referee has discretion to award costs and, absent an abuse of discretion, the referee’s award will not be reversed.
(3) Assessment of Bar Costs. The costs incurred by the bar in any reinstatement case may be assessed against the petitioner unless it is shown that the costs were unnecessary, excessive, or improperly authenticated.
(4) Assessment of Petitioner’s Costs. The referee may assess the petitioner’s costs against the bar in the event that there was no justiciable issue of either law or fact raised by the bar unless it is shown that the costs were unnecessary, excessive, or improperly authenticated.
(n) Readmission; Applicability. A former member who has been disbarred, disbarred on consent, or whose petition for disciplinary resignation or revocation has been accepted may be admitted again only upon full compliance with the rules and regulations governing admission to the bar. No application for readmission following disbarment, disbarment on consent, or disciplinary resignation or revocation may be tendered until such time as all restitution and disciplinary costs as may have been ordered or assessed have been paid together with any interest accrued.
(1) Readmission After Disbarment. Except as might be otherwise provided in these rules, no application for admission may be tendered within 5 years after the date of disbarment or suchany longer period of time as the court might determine in the disbarment order. An order of disbarment that states the disbarment is permanent precludes readmission to The Florida Bar.
(2) Readmission After Disciplinary Resignation or Revocation. A lawyer’s petition for disciplinary resignation or revocation states that it is without leave to apply for readmission will preclude any readmission. A lawyer who was granted a disciplinary resignation or revocation may not apply for readmission until all conditions of the Supreme Court of Florida’s order granting the disciplinary resignation or revocation have been complied with.
Comment
To further illuminate the community service requirements of rule 3-7.10(f)(3)(G), bar members can take guidance from the Florida Supreme Court’s decision in Florida Board of Bar Examiners re M.L.B., 766 So. 2d994, 998-999 (Fla. 2000). The court held that rules requiring community service “contemplate and we wish to encourage positive actions beyond those one would normally do for self benefit, including, but certainly not limited to, working as a guardian ad litem, volunteering on a regular basis with shelters for the homeless or victims of domestic violence, or maintaining substantial involvement in other charitable, community, or educational organizations whose value system, overall mission and activities are directed to good deeds and humanitarian concerns impacting a broad base of citizens.”
Court decisions dealing with reinstatements and other discipline provide further guidance as to what specific actions meet the test of community service. The court approved dismissal of a petition for reinstatement where the respondent had no community service and had devoted all her time during suspension to raising her young children. Fla. Bar v. Tauler, 837 So. 2d 413 (Fla. 2003). In a more recent decision, the court did not specifically mention lack of community service in denying reinstatement, but the respondent had shown no evidence of work for others outside his family in his petition. Respondent’s community service consisted solely of taking care of his elderly parents and his small child. Fla. Bar v. Juan Baraque, 43 So. 3d 691 (Fla. 2010).
RULE 3-7.11 GENERAL RULE OF PROCEDURE
(a) Time is Directory. Except as provided in this rule, the time intervals required are directory only and are not jurisdictional. Failure to observe these directory intervals may result in contempt of the agency having jurisdiction or of the Supreme Court of Florida, but will not prejudice the offending party, except where provided.
(b) Process. Every member of The Florida Bar must notify The Florida Bar of any change of mailing address, e-mail address (unless the lawyer has been excused by The Florida Bar or the Supreme Court of Florida from e-filing and e-service), and military status. The Florida Bar may serve notice of formal complaints in bar proceedings by certified U.S. Postal Service mail return receipt requested to the bar member’s record bar address unless the Supreme Court of Florida directs other service. Every lawyer of another state who is admitted pro hac vice in a specific case before a court of record in Florida may be served by certified U.S. Postal Service mail return receipt requested addressed to the lawyer in care of the Florida lawyer who was associated or appeared with the lawyer admitted pro hac vice or addressed to the Florida lawyer at any address listed by the lawyer in the pleadings in the case.
Service of process and notices must be directed to counsel whenever a person is represented by counsel.
(c) Notice in Lieu of Process. Every member of The Florida Bar is within the jurisdiction of the Supreme Court of Florida and its agencies under these rules, and service of process is not required to obtain jurisdiction over respondents in disciplinary proceedings. The Florida Bar will serve the complaint on the respondent by certified U.S. Postal Service mail return receipt requested to the respondent’s record bar address or a more current address that may be known to the person serving the complaint.
When the respondent is represented by counsel in a referee proceeding, The Florida Bar will serve the formal complaint by certified U.S. Postal Service mail return receipt requested to the record bar address of the respondent’s counsel or a more current address that may be known to the person serving the complaint.
All other correspondence between The Florida Bar and respondents or their counsel, including bar inquiries that require responses during the investigative stage of a disciplinary proceeding, may be made by e-mail to the respondent’s record bar e-mail address or the record bar e-mail address of respondent’s counsel. E-mail correspondence is encouraged in all instances except in service of a formal complaint or subpoena, or where a court directs otherwise. If a lawyer has been excused by The Florida Bar or a court from e-filing and e-service or service cannot be made by e-mail, service by first class U.S. postal service mail is sufficient, except where these rules or a court direct otherwise.
(d) Issuance of Subpoenas. Subpoenas for witnesses’ attendance and the production of documentary evidence, except before a circuit court, must be issued as follows.
(1) Referees. Subpoenas for witnesses’ attendance and production of documentary evidence before a referee must be issued by the referee and must be served either in the manner provided by law for the service of process or by an investigator employed by The Florida Bar.
(2) Grievance Committees. Subpoenas for witnesses’ attendance and the production of documentary evidence must be issued by the chair or vice-chair of a grievance committee as part of an investigation authorized by the committee. These subpoenas may be served by any member of the grievance committee, by an investigator employed by The Florida Bar, or in the manner provided by law for service of process.
(3) Bar Counsel Investigations. Subpoenas for witnesses’ attendance and the production of documentary evidence before bar counsel in an initial investigation must be issued by the chair or vice-chair of a grievance committee to which the matter will be assigned, if appropriate. These subpoenas may be served by an investigator employed by The Florida Bar or in the manner provided by law for the service of process.
(4) After Grievance Committee Action, But Before Appointment of Referee. Subpoenas for witnesses’ attendance and the production of documentary evidence before bar counsel when conducting further investigation after action by a grievance committee, but before appointment of a referee, must be issued by the chair or vice-chair of the grievance committee to which the matter was assigned. These subpoenas may be served by an investigator employed by The Florida Bar or in the manner provided by law for service of process.
(5) Board of Governors. Subpoenas for witnesses’ and the production of documentary evidence before the board of governors must be issued by the executive director and must be served by an investigator employed by The Florida Bar or in the manner provided by law for service of process.
(6) Confidential Proceedings. If the proceeding is confidential, a subpoena must not name the respondent but must style the proceeding as “Confidential Proceeding by The Florida Bar under the Rules of Discipline.”
(7) Contempt.
(A) Generally. Any persons who, without adequate excuse, fail to obey a subpoena served on them under these rules may be cited for contempt of the Supreme Court of Florida in the manner provided by this rule.
(B) Subpoenas for Trust Accounting Records. Members of the bar are under an obligation to maintain trust accounting records as required by these rules and, as a condition of the privilege of practicing law in Florida, may not assert any privilege personal to the lawyer that may be applicable to production of these records in any disciplinary proceedings under these rules.
(i) A respondent who has been found in willful noncompliance with a subpoena for trust accounting records may be cited for contempt under this rule only if the disciplinary agency that issued the subpoena has found that no good cause existed for the respondent’s failure to comply.
(ii) The disciplinary agency that issued the subpoena must hear the issue of noncompliance and issue findings on the noncompliance within 30 days of a request for issuance of the notice of noncompliance.
(8) Assistance to Other Lawyer Disciplinary Jurisdictions. On receipt of a subpoena certified to be issued under the rules or laws of another lawyer disciplinary jurisdiction, the executive director may issue a subpoena directing a person domiciled or found within the state of Florida to give testimony or produce documents or other evidence for use in the other jurisdiction’s lawyer disciplinary proceedings as directed in the subpoena of the other jurisdiction. The practice and procedure applicable to subpoenas issued under this subdivision will be that of the other jurisdiction, except that:
(A) the testimony or production must be only in the county in which the person resides or is employed, or as otherwise fixed by the executive director for good cause shown; and
(B) compliance with any subpoena issued pursuant tounder this subdivision and contempt for failure in this respect must be sought under these rules.
(e) Oath of Witness. Every witness in every proceeding under these rules must be sworn to tell the truth. Violation of this oath is an act of contempt of the Supreme Court of Florida.
(f) Contempt. When a disciplinary agency, as defined elsewhere in these rules, finds that a person is in contempt under these rules, that person may be cited for contempt in the following manner.
(1) Generally.
(A) Petition for Contempt and Order to Show Cause. When a person is found in contempt by a disciplinary agency, bar counsel must file a petition for contempt and order to show cause with the Supreme Court of Florida.
(B) Order to Show Cause; Suspension for Noncompliance with Subpoena for Trust Accounting Records. On review of a petition for contempt and order to show cause, the Supreme Court of Florida may issue an order directing the person to show cause why the person should not be held in contempt and appropriate sanctions imposed.
The Supreme Court of Florida may also issue an order suspending the respondent from the practice of law in Florida until the member fully complies with the subpoena and any further order of the Supreme Court of Florida.
The order of the Supreme Court of Florida must fix a time for a response.
(C) Response to Order to Show Cause.
(i) Generally. Any member subject to an order to show cause must file a response as directed by the Supreme Court of Florida.
(ii) Noncompliance with a Subpoena for Trust Account Records. Any member subject to an order to show cause for noncompliance with a subpoena for trust accounting records may request the Supreme Court of Florida to:
- to withhold entry of an order of suspension, if filed within 10 days of the filing of the petition for contempt and order to show cause, or another time the Supreme Court of Florida may direct in the order to show cause; or
- to terminate or modify the order of suspension at any time after the order of suspension is issued. The Supreme Court of Florida may terminate, modify, or withhold entry of an order of suspension if the member establishes good cause for failure to comply with the subpoena for trust account records.
(D) Failure to Respond to Order to Show Cause. On failure to timely respond to an order to show cause, the matters alleged in the petition are deemed admitted and the Supreme Court of Florida may enter a judgment of contempt and impose appropriate sanctions. Failure to respond may be an additional basis for the Supreme Court of Florida to enter a judgment of contempt and to impose sanctions.
(E) Reply of The Florida Bar. When a timely response to an order to show cause is filed, The Florida Bar will have 10 days, or another time period as the Supreme Court of Florida may order, from the date of filing to file a reply.
(F) Supreme Court of Florida Action. The Supreme Court of Florida will review the matter and issue an appropriate judgment after the time to respond to an order to show cause has expired and no response is timely filed, or after the reply of The Florida Bar has been filed, or the time has expired without any filing. This judgment may include any sanction that a court may impose for contempt and, if the person found in contempt is a member of The Florida Bar, may include any disciplinary sanction authorized under these rules.
If the Supreme Court of Florida requires factual findings, it may direct appointment of a referee as provided in these rules. Proceedings for contempt referred to a referee must be processed in the same manner as disciplinary proceedings under these rules, including, but not limited to, the procedures provided in these rules for conditional guilty pleas for consent judgments. If the Supreme Court of Florida determines it necessary to refer a request to terminate, modify, or withhold entry of an order of suspension based on a petition for contempt and order to show cause for noncompliance with a subpoena for trust account records to a referee for receipt of evidence, the referee proceedings must be expedited and conducted in the same manner as proceedings before a referee on a petition to terminate, modify, or withhold an order of emergency suspension, as provided in these rules.
(G) Preparation and Filing of Report of Referee and Record. The referee must prepare and file a report and the record in cases brought under this rule. The procedures provided for in the rule on procedure before a referee under these rules apply to the preparation, filing, and review of the record.
(H) Appellate Review of Report of Referee. Any party to the contempt proceedings may seek review of the report of referee in the manner provided in these rules for appellate review of disciplinary proceedings.
(2) Failure to Respond to Official Bar Inquiries.
(A) Petition for Contempt and Order to Show Cause. When a respondent is found in contempt by a disciplinary agency for failure to respond to an official bar inquiry without good cause shown, bar counsel must file a petition for contempt and order to show cause with the Supreme Court of Florida.
(B) Response to Petition for Contempt and Order to Show Cause. The respondent will have 10 days from the date of filing of a petition authorized by this subdivision to file a response.
(C) Supreme Court of Florida Action.
(i) Entry of Suspension Order. The Supreme Court of Florida will enter an order suspending the respondent for failure to respond to an official bar inquiry after the respondent files a response to the order to show cause or the time for filing a response has expired, unless it orders otherwise.
(ii) Assignment to Referee. If the Supreme Court of Florida requires factual findings, it may direct appointment of a referee as provided in these rules. Proceedings for contempt referred to a referee must be processed in the same manner as disciplinary proceedings under these rules, including, but not limited to, the provisions provided for conditional guilty pleas for consent judgments.
(g) Court Reporters. Court reporters who are employees of The Florida Bar may be appointed to report any disciplinary proceeding. If the respondent objects at least 48 hours in advance of the matter to be recorded, an independent contract reporter may be retained. Reasonable costs for independent court reporter service will be taxed to the respondent for payment to The Florida Bar.
(h) Disqualification as Trier and Lawyer or Expert Witness Due to Conflict.
(1) Representation Prohibited. Lawyers may not represent, or serve as an expert witness for, a party other than The Florida Bar in disciplinary proceedings authorized by these rules if they are:
(A) currently serving on a grievance committee or the board of governors;
(B) board of governors members-elect;
(C) employees of The Florida Bar; or
(CD) former grievance committee members of a grievance committee, former board of governors members of the board of governors, or former Florida Bar employees of The Florida Bar if personally involved to any degree in the matter while a grievance committee or board of governors member of a grievance committee or the board of governors, or while anFlorida Bar employee of The Florida Bar.
(2) Representation Permitted With Consent by the Board of Governors. Lawyers may represent, or serve as an expert witness for, a party other than The Florida Bar in disciplinary proceedings authorized by these rules only after receiving consent from the executive director or board of governors if they are:
(A) former grievance committee members of a grievance committee, former board of governors members of the board of governors, or former Florida Bar employees of The Florida Bar who did not participate personally in any way in the matter or in any related matter in which the lawyer seeks to be a representative and who did not serve in a supervisory capacity over the matter within 1 year of the service or employment;
(B) a partner, associate, employer, or employee of a member of a grievance committee member, or aboard of governors member of the board of governors, or board of governors member-elect; or
(C) a partner, associate, employer, or employee of a former grievance committee member of a grievance committee or a former board of governors member of the board of governors within 1 year of the former member’s service on the grievance committee or board of governors.
(i) Proceedings after Disbarment. The respondent may consent to or the Supreme Court of Florida may order further proceedings after disbarment, which may include: an audit of trust, operating, or personal bank accounts, the cost of which may be assessed as provided in these rules; a requirement that the respondent provide a financial affidavit attesting to personal and business finances; and maintenance of a current mailing address for a stated period of time.
RULE 3-7.12. DISCIPLINARY REVOCATION OF ADMISSION TO THE FLORIDA BAR
(a) Applicability. A lawyer may seek disciplinary revocation of admission to The Florida Bar if a disciplinary agency is investigating that lawyer’s conduct before or after a recommendation of probable cause.
(b) Petition for Disciplinary Revocation. A petition for disciplinary revocation must be styled “In re …..(respondent’s name)…..,” titled “Petition for Disciplinary Revocation,” filed with the Supreme Court of Florida in an electronic format approved by the supreme court, and contain a statement of all past and pending disciplinary actions and criminal proceedings against the petitioner. The statement must describe the charges made or those under investigation for professional misconduct, results of past proceedings, and the status of pending investigations and proceedings. The petition must state whether it is with or without leave to apply for readmission to the bar. A copy of the petition must be served on the executive director of The Florida Bar.
(c) Judgment. The Florida Bar must file with the Supreme Court of Florida its response to the petition either supporting or opposing the petition for disciplinary revocation within 60 days after service of the petition on the bar. The bar’s response must be determined by the bar’s board of governors. The bar must serve a copy of the response on the petitioner. The Supreme Court of Florida will consider the petition, any response, and the charges against the petitioner. The Supreme Court of Florida may enter judgment granting disciplinary revocation if it has been shown by the petitioner in a proper and competent manner that granting the petition will not adversely affect the public interest, the integrity of the courts, the administration of justice, or the confidence of the public in the legal profession. The Supreme Court of Florida otherwise will deny the petition. A judgment granting disciplinary revocation may require that the disciplinary revocation be subject to appropriate conditions including, but not limited to, freezing of the petitioner’s trust account, restitution if the amount and recipient are identifiable, requiring the petitioner to submit to a full audit of all client trust accounts,execute a financial affidavit attesting to current personal and professional financial circumstances, and maintain a current mailing address with the bar for a period of 5 years after the disciplinary revocation becomes final or another time period.
(d) Effect of Disciplinary Revocation. Disciplinary revocation terminates the lawyer’s license and privilege to practice law and requires readmission to practice under the Rules of the Supreme Court Relating to Admissions to the Bar.
(e) Delay of Disciplinary Proceedings. The filing of a petition for disciplinary revocation does not stay the progress of the disciplinary proceedings without the approval of the bar’s board of governors.
(f) Dismissal of Pending Disciplinary Cases. If disciplinary revocation is granted by the Supreme Court of Florida under this rule, the disciplinary revocation serves to dismiss all pending disciplinary cases.
(g) Costs of Pending Disciplinary Cases. The judgment of the court granting disciplinary revocation may impose a judgment for the costs expended by The Florida Bar in all pending disciplinary cases against the respondent. These costs are as authorized elsewhere in these Rules Regulating The Florida Bar.
Comment
The disciplinary revocation rule replaces the former disciplinary resignation rule, but with added safeguards. Disciplinary revocation is allowed for a minimum of 5 years up to permanent disciplinary revocation. The bar’s response to all petitions for disciplinary revocation must be determined by the bar’s board of governors. Disciplinary revocation, like the formerly allowed disciplinary resignation, is “tantamount to disbarment.” The Florida Bar v. Hale, 762 So.2d 515, 517 (Fla. 2000). Like disbarred lawyers, lawyers whose licenses have been disciplinarily revoked remain subject to the continuing jurisdiction of the Supreme Court of Florida and must meet all requirements for readmission to bar membership. The Florida Bar v. Ross, 732 So.2d 1037, 1041 (Fla. 1998); The Florida Bar v. Hale, 762 So.2d 515, 517 (Fla. 2000).
RULE 3-7.13 INCAPACITY NOT RELATED TO MISCONDUCT
(a) Classification and Effect of Incapacity. Whenever an attorneyA lawyer who has not been adjudged incompetent is incapable of practicing law because of physical or mental illness, incapacity, or other infirmity, the attorney may be classified as an inactive member and shall refrain from the practice of law even if the lawyer has not been adjudged incompetent andthough no misconduct is alleged or proved.
(b) Applicable Rules of Procedure. Proceedings under this rule shallmust be processed under the Rules of Discipline in the same manner as proceedings involving acts of misconduct except that emergency or interim proceedings authorized under rule 3-5.2 shallmust be processed as stated in that rule 3-5.2.
(c) Reinstatement to Practice. A member who has been classified as inactive under this rule may be reinstated in the same manner as in proceedings for reinstatement after suspension for acts of misconduct.
(dc) Proceedings Upon Adjudication of Incapacity or Hospitalization Under the Florida Mental Health Act or Under the Authority of Applicable Law. An attorneyA lawyer may be classified as inactive and prohibited from practicing law if the lawyer who has been adjudicated as incapacitated from the practice of law or is hospitalized under the Florida Mental Health Act or the authority of other applicable law concerning the capability of an attorneya lawyer to practice law may be classified as an inactive member and shall refrain from the practice of law. Upon receipt of notice that a member has been adjudicated as incapacitated or is hospitalized under the Florida Mental Health Act or the authority of other applicable law concerning the capability of an attorney to practice law, The Florida Bar shallmust file a notice thereof with the Supreme Court of Florida on receipt of information that a member has been adjudicated as incapacitated or is hospitalized under the Florida Mental Health Act or the authority of other applicable law concerning the capability of a lawyer to practice law. The court then will issue an order classifying the member as an inactive member.
If an order of restoration is entered by a court having jurisdiction or the attorney is discharged from hospitalization under the Florida Mental Health Act or the authority of other applicable law concerning the capability of an attorney to practice law, the attorney may be reinstated in the same manner as in proceedings for reinstatement after suspension for acts of misconduct.
(ed) Proceedings Upon Consent to Incapacity. An attorneyA lawyer may consent to classification of inactive due to incapacity not for misconduct in the same manner as provided in rule 3-7.9 of these Rules Regulating The Florida Bar.
(e) Effect of Incapacity. Any order placing a lawyer on the inactive list for incapacity under this subdivision immediately precludes the lawyer from accepting any new cases and, unless otherwise ordered, permits the lawyer to continue to represent existing clients for only the first 30 days after issuance of the order. Any fees paid to the lawyer during the 30-day period must be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court. An order placing the lawyer on interim probation under this subdivision may preclude the lawyer from accepting new cases either immediately or during a time specified in the order and may require that the lawyer deposit any fees paid to the lawyer during a specified time period in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the order. After the first 30 days, the lawyer must cease practicing law.
(f) Misconduct. If misconduct is alleged, the bar may determine whether it is appropriate to request placement on the inactive list or prosecute the underlying misconduct.
(g) Reinstatement to Practice. A member who has been classified as inactive under this rule may be reinstated in the same manner as in proceedings for reinstatement after suspension for acts of misconduct. A member who has been adjudicated as incapacitated or hospitalized under the Florida Mental Health Act or the authority of other applicable law may be reinstated under proceedings for reinstatement after suspension only if an order of restoration is entered or the lawyer is discharged from hospitalization.
RULE 3-7.16 LIMITATION ON TIME TO OPEN INVESTIGATION
(a) Time for Initiating Investigation of Complaints and Re-opened Cases.
(1) Initial Complaint or Investigation. A complainant must make a written inquiry to The Florida Bar within 6 years from the time the matter giving rise to the inquiry or complaint is discovered or, with due diligence, should have been discovered. The Florida Bar must open an investigation initiated by The Florida Bar within 6 years from the time the matter giving rise to the investigation is discovered or, with due diligence, should have been discovered.
(2) Re-opened Investigations. A re-opened disciplinary investigation is not time barred by this rule if the investigation is re-opened within 1 year after the date on which the matter was closed, except that a re-opened investigation based on a deferral made in accordance with bar policy and as authorized elsewhere in these Rules Regulating The Florida Bar is not barred if re-opened within 1 year after actual notice of the conclusion of the civil, criminal, or other proceedings on which the deferral was based.
(3) Deferred Investigations. A disciplinary investigation that began with the opening of a discipline file and bar inquiries to a respondent within the 6-year time period as described in this rule and was then deferred under bar policy and the Rules Regulating The Florida Bar, is not time barred under this rule if a grievance committee finds probable cause and the bar files its formal complaint within 1 year after actual notice of the conclusion of the civil, criminal, or other proceedings on which deferral was based, if the 6-year time period would have otherwise expired.
(b) Exception for Theft or Conviction of a Felony Criminal Offense. There is no limit on the time in which to present, reopen, or bring a matter alleging theft or conviction of a felony criminal offense by a member of The Florida Bar.
(c) Tolling Based on Fraud, Concealment, or Misrepresentation. The limitation of time in which to bring or reopen a complaint within this rule is tolled where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the matter giving rise to the inquiry or complaint.
(d) Constitutional Officers. Inquiries raised or complaints presented by or to The Florida Bar about the conduct of a constitutional officer who is required to be a member in good standing of The Florida Bar must be commenced within 6 years.
Rule 3-X.X PROCEDURES ON FROZEN TRUST ACCOUNTS
(a) Effect of Order Restricting Lawyer Trust Account. Any order of emergency suspension, interim probation, or interim placement on the inactive list that restricts the lawyer in maintaining a trust account will be served on the respondent and any bank or other financial institution maintaining any trust account against which the respondent may make withdrawals. The order enjoins the bank or financial institution from making further payment from the trust account or accounts on any obligation, except in accordance with restrictions imposed by the court or a court-appointed referee. The order also may enjoin the bank or financial institution from making further payment from any of the respondent’s operating or personal accounts on any obligation, except in accordance with restrictions imposed by the court or a court-appointed referee. Bar counsel will serve a copy of the Supreme Court of Florida’s order freezing a lawyer’s trust account on any bank in which the respondent’s accounts that are subject to the order are held.
(b) Appointment of Referee. The Supreme Court of Florida will promptly appoint or direct the appointment of a referee on determination that funds have been misappropriated from a lawyer’s trust or other account as provided above.
(c) Referee’s Authorization and Claims to Trust Funds. The court’s order appointing a referee under this rule may authorize the referee to determine entitlement to trust funds in any frozen account. Any client or third party claiming entitlement to trust funds in any frozen account must provide a petition, with supporting documents proving entitlement to trust funds, requesting release of frozen funds with The Florida Bar. The Florida Bar will file the petitions and supporting documents with the referee.
(d) Notice by Florida Bar. The bar will provide information to the appointed referee from bar audits and other existing information regarding persons claiming entitlement to frozen trust funds. The bar will notify persons known to bar staff in writing via regular first class mail, e-mail, or other applicable means of their possible interest in funds contained in the frozen account. The notices will include a copy of the form of a petition requesting release of frozen trust funds to be filed with the referee and instructions for completing the form. The bar will publish in the local county or city newspaper published where the lawyer practiced before suspension a notice informing the public that the lawyer’s account has been frozen and those persons with claims on the funds should contact listed bar counsel within 30 days after publication whenever possible.
(e) Appointment and Payment of Receiver. The referee may appoint a receiver to determine the persons rightfully entitled to the frozen trust funds if there are no responses to the notices mailed and published by the bar within 90 days from the date of the notice or if the amount in the frozen account is over $100,000. The receiver will be paid from the corpus of the trust funds unless the referee orders otherwise.
(f) Summary Proceedings. The referee will unfreeze the trust funds if the amount in the frozen account is $5,000 or less and no persons with potential entitlement to frozen trust funds respond to the bar’s mailed or published notices within 90 days from the date of the notice.
(g) Referee Review of Frozen Trust Account Petitions. The referee determines when and how to pay the claim of any person entitled to funds in the frozen account after reviewing the bar’s audit report, the lawyer’s trust account records, the petitions filed, or the receiver’s recommendations. The referee may hold a hearing if the bar’s audit report or other reliable evidence shows that funds have been stolen or misappropriated from the lawyer’s account. Subchapter 3-7 will not apply to a referee hearing under this rule. No pleadings may be filed other than petitions requesting release of frozen trust funds. The parties to this referee proceeding are those persons filing a petition requesting release of frozen trust funds. The bar is not a party to the proceeding. The referee’s order is the final order in the matter unless one of the parties petitions for review of the referee’s order to the Supreme Court of Florida. The sole issue before the referee is determination of entitlement to the frozen trust funds. The referee determines the percentage of monies missing from the respondent’s trust account and the amounts owing to those petitioners requesting release of frozen trust funds. The referee will order a pro rata distribution if there are insufficient funds in the account to pay all claims in full.
(h) Separate Funds in Frozen Trust Accounts. The referee will order return of any separate funds to their rightful owner(s) in full on the filing of a petition requesting release of frozen trust funds with proof of entitlement to the funds. Separate funds are monies deposited into the respondent’s trust account after the misappropriation, which are not affected by the misappropriation, and funds that have been placed in a separate segregated individual trust account under the individual client’s tax identification number.
(i) Review by Supreme Court of Florida. The referee’s final order is subject only to direct petition for review by a party claiming entitlement to the frozen trust funds. The petition for review must be filed within 60 days of the referee’s final order. Briefing schedules after the petition for review is filed are set forth in subchapter 3-7 of these rules.
