The Florida Bar, Discipline Counsel Manual

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CHARTS OF THE DISCIPLINARY SYSTEM

Charts of the Discipline System

The charts of the discipline system are intended to chart track the flow of a typical dicipline case.

Glossary

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Mandatory Intake Process

BEGINInquiry/Complaint

form received

Mandatory Intake Process

Appropriate formediation?

(See 14-4.1)

Fee dispute?(See 14-4.1(a))

Sworn?

No

Go to FeeArb Process

Go to Mediation Process

Jurisdiction?

Send "sworn"letter (Inq11)No

"Sworn" Ltrreturnedsigned?

Case is closed at inquirylevel

Case is closed unsworn

Yes

Yes

Case closed

Does conductconstitute a

violation? (See3-7.3(a))

Yes

Yes

Letter tocomplainant and

respondent

No

Letter tocomplainant

andrespondent

No


andrespondent

No

Does allegedconduct warrant

furtherinvestigation?

Yes

No

Yes

Go to Initial Investigation-Disciplinary Complaints

ProcessYes

No

Glossary

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Initial Investigation - Disciplinary Complaints

Alleged conductconstitutes a violation

of The RulesRegulating The Florida

Bar

Is Rebuttal receivedfrom complainant?

"15 day" letter sentto respondent.(See 3-7.3(b))

Is response receivedfrom respondent?

Factual analysis engaged by BarCounsel. Close, send to GC or GC

Chair.Go to GC Process

Initial InvestigationDisciplinary Complaints

Yes

Yes

Yes

Case closed at stafflevel

Yes

Add additional ruleviolation?

(See 4-8.4(g))

Yes

No


respondent

Close

To GCDiversion/NPCor NPC-A To GC Chair

Go to Diversion -Recommendation by BarCounsel and GC Chair

Diversion

Go to NPC-A byStaff/GC Chair

Process

Go to NPC byStaff/GC Chair

Process

NPC

NPC-A

Glossary

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Mediation Process

Mediation Process

Do both partiesagree to Mediation?(See 3-8.1(h)(1)(A)

Mediator assigned.

Yes

Do both partiesattend?

Mediator will furnish copyof Mediation Agreement

to The Florida Bar(See 3-8.1(3))

Yes

Is Respondent compliantwith MediationAgreement?

No

Who does notattend?

No

No Go to Staff LevelProcess

File remainsclosed

File remains closed

Yes

Referred to Mediation(See 3-8.1(d))

Closediscipline

file?File closedYes

No


andrespondent


andrespondent

Complainant


andrespondent

Respondent


andrespondent

Glossary

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Fee Arbitration

Fee Arbitration Process

Parties consentto arbitration?

(See 14-4.1(a))

Arbitrator assigned(See Rule II(A))

Yes

Hearing held within 45days of receipt of

assignment.(See Rule II(F))

Award is rendered within 10days of the close of thehearing. (See Rule II(F))Award is binding. (See Rule14-5.2(a))

No

Go to Inquiry/Complaint ProcessNo

Are allegations afee dispute?

File is referredto fee

arbitration

Yes

Close File? File is closed

Is respondentcompliant?

File Closed

Begin

No

No


respondent

Yes


respondentYes

Glossary

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Grievance Committee Process

Grievance Committee Process

File is referred togrievance comittee;

complainant andrespondent are notified

and investigationbegins (Rule 3-7.3(f))

InvestigatingMember isassigned

GrievanceCommittee

Action

No ProbableCause(NPC)

No ProbableCause w/Letterof Advice (NPC/

LOA)

MediationFee

Arbitration(Fee Arb)

DiversionMinor

Miscondct(MM)

ProbableCause (PC)

Go to GC/NPCProcess

Go to GCNPC/LOAProcess

Go toMediationProcess

Go toFeeArb

Processs

Go toDiversionProcess

Go to MMProcess

Go toPretrialProcess

Investigating memberrecomends hearing or

paper review

Notice torespondent

andcomplainant

Respondent'sresponse

Hearingheld

Notice torespondent

andcomplainant

Respondent'sresponse

PaperReviewReviewHearing

Begin

Complainantand respondent

are advised.

Glossary

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Grievance Committee NPC Process

Grievance Committee NPC Process

GC Meeting is held and GCfinding is No Probable

Cause (NPC)

Letter notifyingrespondent and

complainant of NPCfinding is prepared, mailed

and copied to DR

Does DR Agree?

Yes

Go to BOG ReviewProcessNo


respondent

File is closed

Begin

Glossary

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Grievance Committee NPC/LOA Process

Grievance Committee NPC/ LOA Process

GC Meeting is held andGC finding is no probable

cause with a letter ofadvice (NPC/LOA)

Letter notifyingrespondent and

complainant of NPC /LOAfinding is prepared,

mailed and copied to DR

File is closed

Does DR Agree?Go to BOG Review

ProcessNo


respondent

Yes

Begin

Glossary

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Diversion - Recommended by Bar Counsel & GC Chair

Diversion Process(Recommended by Bar Counsel and Grievance Committee Chair)

Diversion agenda itemprepared and forwarded tostaff counsel for approval

(See 3-5.3(d))

Does staff counselagree with diversionrecommendation?

Bar Counsel forwardsrecommendationto GC chair for

signature. Does Chairsign?

Bar counsel determinesdiversion is appropriate

disposition

Recommendationserved on

respondent. DoesRespondent

accept?

No

Letter is mailed tocomplainant advising ofconclusion of case. (See

3-5.3(i))

No

File is closed at diversionlevel.

Yes

Bar counselforwards to

DR; does DRapprove?

Yes

Yes

No

Doesrespondentcompletediversion?

File remainsclosed

Notice of noncomplianceforwarded to bar counsel

Yes

Reopen fileor new file?


respondent

No

Yes

No

No

Yes

LawReg HQ schedulesand monitorscompliance

Go to Grievance CommitteeProcess

Glossary

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Staff-GC Chair NPC

Staff and GC Chair NPC

Bar Counsel requestsGC Chair concurrence.

Chair concurs?

Bar counsel determines NPCclosure by Staff and GC Chairis an appropriate disposition

(See 3-7.3(d)

Letter is mailed torespondent and

complainant advising ofconclusion of case.

File is closed.

Yes

Yes

Back to BarCounsel

No

Glossary

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Staff-GC Chair NPC-A

Staff and GC Chair NPC-A

Bar Counsel preparesand sends Letter ofAdvice to GC Chair.

Chair signs?

Bar counsel determines NPCwith a Letter of Advice byStaff and GC Chair is anappropriate disposition

(See 3-7.3(d)

File is closed.

Yes

Back to BarCounsel

No

Letter is mailed toRespondent with Letter of

Advice from Staff-GCChair.

Letter is mailed toComplainant notifying of

final discposition.

Yes

Glossary

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Diversion - GC Finding

Begin

GC recommendsdiversion (See 3-5.3)

BC prepares diversionagenda item - emailsto Staff Counsel for

approval

Does StaffCounsel approve ? No

Yes

File returned to BCto correct and/orpresent to GC.

BC serves diversionreport on respondent.

(See 3-5.3(f))

Respondent will bescheduled for

appropriate PPEPoffered in respondents'

geographic location.

Diversion Process(Grievance Committee Finding of Diversion)

Does DR approve? No

Does respondentaccept?

Yes

File is closed.

No

Letter to complainant

Yes

Does respondentcomply withconditions?

Letter to respondentand complainant

Yes

Letter to respondentand complainantNo

Glossary

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Diversion - Respondent Offers or Agrees to Diversion

Diversion Process(Respondent Offers or Agrees to Diversion)

Bar Counsel preparesdiversion agenda itemand forwards to StaffCounsel for approval

(See 3-5.3(d))

Staff Counselapproves?

File is returned to BarCounsel to correct and/or

present to GC

Yes

Respondent is servedwith fully executedAgreed Diversion

Report

Letter is mailed tocomplainant advising of

conclusion of case. (See RRTFB 3-5.3(i))

Respondent offersdiversion before GC

action

File is ClosedIs respondentcompliant with

conditions?

Yes

No

File remainsClosed

Does GC Chairapprove? No

No

Does DRapprove?

Yes


and respondent


and respondent

Yes

No

Glossary

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Minor Misconduct Process - Admissions

Minor Misconduct Process

Bar Counseldrafts admission

of minormisconduct

Respondentsigns admission

Admission is forwardedto GC Chair to be

presented at next GCmeeting

Bar Counsel draftsReport of minormisconduct and

forwards to GC Chairfor signature.

DR review -accept/reject?

LawReg HQmonitors

payment ofcosts and

compliance

File is Closed

Accepted

Rejected

Admission isreturned forcorrections

Yes

Staff Counselapproves?

Yes

No

No

Yes

Go to GrievanceCommittee

Process

Go to BOGReview ProcessRejected

GC chair signsreport

Yes

No

Report is servedon respondent

Accept


respondent

Admits Prior to GCFinding

Admits After GC finds PC(must be within 15 days of PC Finding)

Bar Counseldrafts admission

of minormisconduct

Admission isreturned forcorrections

Respondentsigns admission

Admission is forwardedto GC Chair to be

presented at next GCmeeting

Go to Pretrial(Complaint)

ProcessRejected

Bar Counsel draftsReport of minormisconduct and

forwards to GC Chairfor signature.

GC chair signsreport

DR review -accept/reject?

Go to BOGReview Process

Report is servedon respondent

LawReg HQmonitors

payment ofcosts and

compliance


respondent

File is Closed

Accepted

No

Yes

Accept

Rejected

No

Yes

Yes

Glossary

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Minor Misconduct Process - GC Finding

Begin

GC Recommends minormisconduct (See 3-

7.4(m))

BC prepares report andforwards to GC chair for

signature(See 3-7.4(m))

Does DR approve?(See 3-7.5(b))

BC prepares letter forservice of report on

respondent.(See 3-5.1(3))

Yes

Respondentaccepts?

Upon administration ofadmonishment, file is

closed.

Minor Misconduct Process(Grievance Committee Finding of Minor Misconduct)

NoGo To Pretrial Process

Flowchart

Signed report isforwarded to Staff

Counsel for approval.(See 3-7.4(m))

Does Staff Counselapprove?

Report returned to GCfor remedy of defect or

referral to BOG.(See 3-5.1(b)(3))

No

Report forwarded to DRfor approval.

(See 3-7.5(b))

Yes

Go to BOG ReviewProcess

Go to GC Process

No


andrespondent


andrespondent

Yes

Glossary

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Consent Judgment - Before Filing of a Formal Complaint

Begin

Consent Judgment Process(Before Filing of Formal Complaint)

Respondentoffers plea

Bar Counsel andCBDC review -

Approved?

Staff Counselreview -

Approved?

DR review -Approved?

Petition and pleafiled with FSC.

File is closed

LawReg HQmonitors

payment ofcosts &

compliance

Yes

Go To Trial Process

FSC issues finalorder

Yes

No

No

No

Yes

BOG review -Approved? No

BC preparespetition forapproval

Yes


respondent

Yes


respondent

No

Glossary

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Consent Judgment - After the Filing of a Formal Complaint

Begin

Consent Judgment Process(After Filing of Formal Complaint)

Complaint hasbeen filed with

FSC

Respondentoffers plea

Bar Counsel andCBDC review -

Approved?

Staff Counselreview -

Approved?

DR review -Approved?

Plea is filedwith FSC.

File is closed

LawReg HQmonitors

payment ofcosts and

compliance

Yes

Yes

FSC issues finalorder

No

Referee review -Approved?

Yes

No

No

No

Go To Trial Process


respondent

Yes

Glossary

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Pretrial Process

Pretrial Process(Complaint Process)

GC action isprobable cause

Respondentrejected minor

misconduct

Board ofGovernors findsprobable cause

AutoTrial(reciprocal

discipline andfollow-up cases)

Bar Counseldrafts complaint

Staff Counselsigns and filescomplaint with

FSC

GC Chair signscomplaint

Yes

Go To Trial Process


for minormisconduct




FSC


FSC


FSC

START

No

No No

GC Chair signscomplaint

Yes

Yes Yes

No

Glossary

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Trial Process

Begin

Trial Process

MM rejected PC by rule

PC by GC

Does R admitMM?

Go to Minor MisconductProcessYes

Doesrespondentoffer plea?

No

Go to CJ BeforeComplaint ProcessYes

Formal complaintdrafted

No

GC chair signs

Go to BOGReview Process

Staff Counsel signs

Referee Appointed

Respondent offersplea?

Trial

ROR filed

Yes

No

Go to CJ AfterComplaint ProcessYes

No

Complaint filed withFSC

Yes

Yes

Formal complaintdrafted

Glossary

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Referee Process

Referee ProcessBegin

Referee isappointed by

FSC

Respondentoffers plea?

Go to CJ After FilingComplaintYes

Pretrialconference

Discovery

Trial

Report ofReferee

Go to BOG ReviewProcess

No


No



No

No

Yes

Glossary

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BOG Review Process

BOG Review ProcessBar counsel prepares

agenda item

CBDC reviewsagenda item -

approved?

Staff Counselreviews agendaitem -approved?

Placed on agendaDRC reviews and

rendersrecommendation

BOG Revie

Type of Case on Review

Report ofreferee

Petition fordisciplinaryresignation

Review of Gfinding

Yes Yes

Petition forreview?

Bar Counseldrafts petition

Yes

Petition filed w/FSC

Bar counseldrafts initial

brief

Respondent filesanswer brief

Bar Counseldrafts reply brief

Oral argument

FSC issues order

BOG review

GC findingupheld?

NPC?

NPC/LOA?

Mediation?

FeeArb?

Diversion?

PC?

No

No

No

No

No

LawReg HQ reviews Order,monitors payment of costs and

compliance with FSC order

File is closed

Oral argument

Petitiongranted?Yes

Go to GC NPCProcess

Go to GC NPC/LOAProcess

Go to MediationProcess

Go to FeeArbProcess

Go to DiversionProcess

Go to PretrialProcess

Petition filed

Bar counsel filesresponse

Respondent filesreply

No

Letter tocomplainant &

respondent


respondent


respondent


respondent


respondent


respondent

Yes

Yes

Yes

Yes

Yes

Yes

Letter to FSC,complainant &

respondentLetter to FSC,complainant &

respondent

No

Letter to FSC,complainant &

respondentLetter to FSC,complainant &

respondent

No

No


respondentFile Closed Yes

Glossary

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Supreme Court Review Process

Type of Case on Review

Supreme Court Review Process

Report of Referee Consent JudgmentPetition forDisciplinaryResignation

Incapacity/Petition for

Placement onInactive List

Contested Uncontested

Petition forreview

Briefs filed

Oral argument

FSC order/opinion

LawReg HQmonitors

payment ofcosts and

compliance

Case closed

FSC order/opinion

Approved Rejected

FSC order/opinion

Go to PretrialProcess

LawReg HQmonitors

payment ofcosts and

compliance

Petition filed

BOG review/response

FSC order/opinion

LawReg HQmonitors

payment ofcosts and

compliance

Petition filed/RORrecommends

BOG review/response

FSC order/opinion

Letter tocomplainant& respondent


respondent


respondent


respondent


respondent


respondentCase closed

Case closed


respondent

Letter tocomplainant& respondent

Glossary

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ROLE OF PARTICIPANTS /AGENCIES

Role of Participants/Agencies

The participants and agencies involved in a Florida bar disciplinary proceeding are defined by the Rules Regulating The Florida Bar and their roles are clearly stated.

Participants

Rule 3-2.1 defines participants in disciplinary proceedings:

Bar counsel: A member of The Florida Bar representing the bar in disciplinary proceedings.

Board of governors: The board of governors of The Florida Bar.

Complainant or complaining witness: This is the person who has initiated disciplinary proceedings by filing a complaint of professional misconduct against a member of the bar.

The court: The Supreme Court of Florida.

Court of this state: A court in the state of Florida authorized and established by the constitution or laws of the state.

Executive committee: The executive committee of the board of governors of The Florida Bar.

Executive director: The executive director of The Florida Bar.

Intake counsel: A specific type of bar counsel assigned to screen initial inquiries to determine whether further disciplinary proceedings are appropriate.

Referee: A judge or retired judge who is appointed to conduct disciplinary proceedings.

Respondent: The member of The Florida Bar or any other attorney whose conduct is subject to the Rules Regulating The Florida Bar and whose conduct is under investigation.

Staff counsel: The director of the legal division of The Florida Bar.

Chief branch discipline counsel (CBDC): The lawyer in charge of a branch disciplinary office of The Florida Bar.

Designated reviewer (DR): A member of the board of governors of The Florida Bar who has been designated to review the actions of a grievance committee or designated to review the actions of the bar in a particular disciplinary matter.

Disciplinary Agencies

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Rule 3-3.1 classifies as the following as disciplinary agencies:Board of governors;Grievance committees; andReferees.

Parties

The parties to a disciplinary proceeding are the respondent and The Florida Bar.

Roles of participants and agencies

Bar counsel Bar counsel conducts the initial or staff level investigations, presents cases to grievance committees, conducts pretrial discovery and handles the trial of disciplinary cases before referees, provides legal counsel to grievance committees and the board of governors, and conducts appeals of referee recommendations to the Supreme Court of Florida.

Bar counsel is not a member of the grievance committee and has no vote in committee deliberations.

Bar counsel has the authority to decline to pursue disciplinary complaints before a matter is referred to a grievance committee. 3-7.3(d).

Board of Governors (BOG)The board has the responsibility and authority to supervise and conduct disciplinary proceedings. 3-3.2(a)

This authority includes the ability to terminate disciplinary proceedings until the time that a referee has received evidence. 3-7.5(f).

The board of governors reviews all matters placed on the disciplinary agenda. This includes reports of referee, for the purpose of determining whether the bar will appeal a recommendation, 3-7.7(a) (1); and actions of a grievance committee when such actions are referred to the board by a designated reviewer. 3-7.5(a) (2).

Complainant or complaining witnessThe complainant is a witness and not a party. Subject to reasonable limitations (as determined by the grievance committee chair), the complainant may be present before a grievance committee when the respondent is also present. 3-7.4(i).

In a proceeding before a referee the complainant is also only a witness and has no other rights than those of any other witness. Unless it is impractical due to unreasonable delay or other good cause, and after the complainant has testified in the case in chief, the referee may grant the complainant the right to be present at the hearing when the respondent is also present. 3-7.6 (k).

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The courtThe Supreme Court of Florida is granted constitutional authority to regulate the conduct of persons admitted to practice law in Florida or permitted to appear under applicable rules. Art. V, Fla. Const.; 1-3.10; 2.510, Fla. R. Jud. Admin.

The court is the final adjudicator in bar discipline cases and has authority to issue:

final disciplinary orders and opinions 3-7.7(c) (6);final orders in disciplinary revocation cases 3-7.12(b)emergency suspension and probation orders 3-5.2(a);interim suspension orders based on felony conduct 3-7.2(f); extraordinary writs necessary to conduct disciplinary proceedings 3-7.7(e);orders of contempt directed toward respondents 3-7.11(f); andincapacity orders 3-7.13(d).

Review of the findings and recommendations of referees is had by filing a notice of intent to seek review with the court. 3-7.7(a).

Executive committeeThe executive committee is a committee of the board of governors with the authority to perform any act that the board may do if time limits do not allow for full board consideration of a matter. 2-3.12.

Executive directorThe executive director is an employee and officer of the bar. 2-4.3.

The executive director is authorized to file a petition for emergency suspension or emergency probation. 3-5.2(a).

RefereeReferees are sitting or retired county or circuit judges and have the role of fact finder. The referee enters a report to the court containing findings of fact and recommendations of guilt and sanctions. 3-7.6(a), (b) & (m).

Referees have the sole authority to issue subpoenas for discovery and trial in disciplinary cases before the referee. 3-7.11(d) (1).

RespondentThe respondent is a party to disciplinary proceedings, but has no right to a live hearing before a grievance committee. 3-7.4(h). The respondent may present evidence and call witnesses before the referee. The respondent may seek review of the report of the referee by file a notice of intent to seek review with the court. 3-7.7(a).

Staff counselStaff counsel has the responsibility to:

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review and approve diversion recommendations, 3-5.3(d) & (h) (1);review, sign, and file formal complaints, 3-7.4(l) & (p);review and approve all consent judgment for guilty pleas, 3-7.9(a) & (b); andappoint bar counsel in disciplinary matters, 3-3.3(b).

Staff counsel is the director of lawyer regulation and as such has supervisory responsibility for the lawyer regulation department.

Chief branch discipline counsel (CBDC)The CBDC is the lawyer in charge of a branch disciplinary office. As such the CBDC has supervisory responsibility for the disciplinary proceedings conducted out of that office. The CBDC may be appointed as bar counsel.

Grievance committee chairThe chair presides over most meetings or hearings of the committee, 3-7.4(q) (2).

The chair has responsibility to review and approve:

diversion recommendations, 3-5.3(d) & (h) (1);letters of advice, if the chair is the presiding member 3-7.4(k);reports of minor misconduct, if the presiding member 3-7.4(m);formal complaints, if the presiding member 3-7.4(l); andsubpoenas for production of evidence or testimony before the committee, 3-7.11(d) (2).

Designated reviewer (DR)The DR is a member of the BOG has oversight responsibility concerning all final action of a grievance committee to which the DR is assigned. 3-7.5(a).

The DR also has responsibility to review and approve:

diversion recommendations, 3-5.3(d) & (h) (1);reports of minor misconduct, 3-7.4(m); andall guilty pleas for consent judgments, 3-7.9(a) & (b).

The DR’s recommendation shall be included in all matters referred to the board of governors for review, if a recommendation is available.

Glossary

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SUMMARY OF CASE PROCESSING

Summary of Case Processing

Glossary

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Initial Investigations

Intake Counsel

With few exceptions initial inquiries into the conduct of a member of the bar are screened by the Intake and ACAP office in Tallahassee. The written complaint is scanned into an electronic record designated as a Request For Assistance (RFA) which is assigned an RFA number, and assigned to intake Bar counsel for screening and a determination as to whether the matter should be resolved without converting it to a disciplinary file.

If, after that screening, it is determined that the matter should be investigated, it is converted to a case and assigned a disciplinary case number different from the previous RFA number. Matters converted to a case are considered disciplinary complaints. See, rule 3-7.3. Intake counsel will send an initial letter (the 15 day letter) asking the lawyer to respond to the allegations. Intake counsel will review the response to the 15 day letter, as well as any rebuttal submitted by the complainant, and determine whether the matter should be referred to a branch office for additional disciplinary investigation and possible referral to a grievance committee.

Apart from routine complaint files, the following types of files will be opened by the appropriate branch office or HQ: ReinstatementEmergency SuspensionReciprocal DisciplineFelony SuspensionMonitor filesInventory AttorneyCriminal ChargesIncompetencyOrder to Show CauseConditional AdmitteeEmergency ProbationReadmissionTrust account NSF notices and any other complaint that appears to require an audit.

As a guideline as to what type of trust account cases should be immediately referred to the branches (in addition to all NSF cases) all complaints involving allegations of trust account misappropriation, shortages, or failures to provide accountings of funds should be referred directly to the branches. In particular, complaints from judges, title companies, banking or other institutions should be expedited and sent immediately to the branch. It is irrelevant that the attorney may have made restitution or blames others for the problems.

If ACAP receives documentation that will be forwarded to a Branch, ACAP will still scan the materials into CAMFI and proceed with a direct referral to branch with no letters being generated from ACAP.

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When we receive an NSF notice, but only the account number and not the attorney's name is listed, please refer to rule 5-1.1(g)(7) and follow this procedure:

1. Send an email to Lushawn Phillips, IOTA Operations Manager [email protected]) ; and 2. "cc" (Jane Curran [email protected]).

Judicial Referrals are to be opened by Intake and must follow Standing Board Policy 15.91 on Judicial Referrals and Complaints

Bar counsel conducts initial investigations of disciplinary complaints with the assistance of staff investigators (rule 3-7.3).

After conducting initial investigations, intake or branch bar counsel may:

without other concurrence - decline to pursue a complaint and close the matter, or offer to refer the complaint to the grievance mediation or fee arbitration program (this referral requires agreement of the complainant and the respondent); or

with concurrence of the grievance committee chair - recommend closure of the complaint with a finding of no probable cause with or without a letter of advice. or

Additionally, after conducting initial investigations, branch bar counsel may:

with the concurrence of the grievance committee chair, staff counsel, and the designated reviewer recommend diversion to a practice and professionalism enhancement program.

If bar counsel does not close the file or recommend an alternative to disciplinary action, bar counsel’s sole remaining option is to refer the file to the appropriate grievance committee for further proceedings.------------------------------------------------------------------------------------------------------------

Glossary

- 30 -


Grievance Committee Administration & Procedures

Grievance Committee Chair

The chair of the committee reviews all files forwarded to the committee and assigns a member of the committee to the role of “investigating member.” (Rule 3-7.4) The investigating member completes whatever investigation is necessary to reach a conclusion as to the disposition of the matter. Bar investigators should be available to assist the investigating member upon request.

The chair of the committee should ensure that all investigating members are prepared to report the status of all cases at each committee meeting. Bar counsel should prepare, or assist the chair in preparing, an agenda for each meeting and minutes to record the action of the committee.

Investigating Member

The investigating member may recommend that the committee:

dismiss the case with a finding of no probable cause;dismiss the case with the finding of no probable cause accompanied by a letter of advice;refer the case to the grievance mediation or fee arbitration program;recommend diversion of the case to a practice and professionalism enhancement

program; or,recommend further committee proceedings at a live hearing or on review of the

documents constituting the record.

If the investigating member recommends further proceedings without a live hearing, bar counsel prepares a record for the committee, serves the respondent (or respondent’s counsel, if any), and disseminates the record for the committee’s consideration.

If the investigating member recommends further proceedings that require a live hearing, bar counsel prepares notice of the hearing along with the record and proceeds in the same manner as in cases on review of the record.

Grievance Committee

The grievance committee reviews a record of all matters set for review whether with or without a hearing at which witnesses testify in other instances saved. After the hearing the grievance committee may:

close the disciplinary case with a finding of no probable cause;close the display case of the finer no probable cause accompanied by a letter of

advice;refer the case to the fee arbitration and grievance mediation program;recommend the diversion of the display case to a practice and professionalism

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and enhancement program;enter a finding of minor misconduct; orenter a finding of probable cause for further disciplinary proceedings.

Notice of grievance committee final action is given to the designated reviewer assigned to review the actions of the grievance committee.

Designated Reviewer

The designated reviewer reviews all grievance committee final action and on such review may:

refer the matter back to the grievance committee for further consideration;concur with the findings of the grievance committee by affirmative act;allow the finding of the grievance committee to become final by taking no action

within 30 days of the referral of the matter to the designated reviewer; ordisagree with the grievance committee action and refer the matter to the

disciplinary review committee for its review and report to the board of governors.

Bar Counsel

Bar counsel prepares all letters and notices concerning grievance committee action, serves copies on the complainant, respondent, designated reviewer, and staff counsel and directs appropriate computer data base entries.

Glossary

- 32 -


Trial Procedures

For purposes of this manual the trial process commences when a referee is appointed.

Appointment of Referee

When the formal complaint is filed the chief justice of the court will issue an administrative order directing the chief judge of a judicial circuit to appoint a referee to try the disciplinary case.

Bar counsel and the respondent may engage in discovery pursuant to the rules of civil procedure and an adversarial trial is required.

Subpoenas for production of documents and attendance of witnesses may be issued by the referee only.

Consent Judgment (rule 3-7.9)

Once a formal complaint is filed a respondent may indicate a willingness to plead guilty to the charges for an agreed discipline. Bar counsel must seek approval from CBDC, and if approved, from staff counsel, and, if approved from the DR. If all approve, the matter is forwarded to the referee for acceptance. If the referee does not accept the proposed resolution, then the matter is returned to bar counsel for further trial procedures.

If the referee approves the plea, bar counsel offers to submit a proposed report of referee to the referee for execution and filing, along with the record, in the Supreme Court. This procedure does not require a hearing and may be accomplished by stipulation.

Report of Referee

In all cases, the final recommendation of the referee is recorded in a report of referee that is filed, along with the record, with the Supreme Court of Florida. The report of referee shall contain findings of fact, recommendations of guilt based upon those findings of fact, and in cases where guilt is found, a recommendation of disciplinary sanctions to be imposed. In addition, the report of referee shall contain a statement of costs incurred by the bar and the manner in which those costs should be taxed.

Bar counsel should offer to assist the referee in the preparation of the report by providing the report in draft along with an electronic copy on diskette. Bar counsel must provide a copy of the draft report to the respondent. Bar counsel should also offer to assist in the preparation of the record and index of the record. (Rule 3-7.6(n)) The referee will file the report and record with the court.

Glossary

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Post Trial & Appellate Procedures

Post trial and appellate procedures commence upon the filing of the report of referee with the Supreme Court of Florida.

Review by Board of Governors

In cases based upon a consent judgment before a formal complaint is filed and cases involving a report of referee that is not based upon a consent judgment, bar counsel shall prepare an agenda item for submission to the board. Bar counsel will prepare an agenda item for approval by the CBDC and staff counsel. Once approved, the item is forwarded for board approval.

Bar counsel calculates the appropriate time available for bar review and determines whether the matter should be placed on the board disciplinary agenda or sent to the executive committee for review when time does not allow for full board review.

If a matter is submitted to the executive committee for action, bar counsel will prepare and forward the agenda item and all appropriate backup to headquarters. The preferred method of referral is e-mail. Headquarters will prepare a memorandum, then forward the memorandum and agenda item with backup to the executive committee.

The executive committee shall be offered the options of voting to file a notice of intent to seek review and seek specified sanctions, voting to not seek review, or requesting a conference call to discuss the case. A deadline for responses must be stated.

Copies of the referral to the executive committee will be given to the executive director, designated reviewer, staff counsel, director of lawyer regulation, and the assistant to the president.

Once a majority of the executive committee has authorized a particular action, bar counsel prepares the necessary letters and pleadings to effectuate the executive committee action. In addition, bar counsel prepares a notice of executive committee action and forwards the notice, the agenda item, and appropriate backup to the headquarters office for inclusion in the next regular board disciplinary agenda.

When the matter is presented to the full board of governors for review, the headquarters office will prepare the disciplinary agenda and present the matter to the disciplinary review committee and board of governors. The board may modify the decision of the executive committee (rule 2-3.12). Bar counsel’s responsibility is to prepare the agenda item and appropriate backup, secure approval and recommendations from staff counsel and the designated reviewer and forward all to the headquarters office.

The headquarters office will author a letter to the clerk of the supreme court indicating board action on the case. A copy of this letter will be given to bar counsel, the respondent, the

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designated reviewer, and any other appropriate persons.

Bar counsel will prepare and file any necessary pleadings to effectuate board action.

Supreme Court Review and Action (Rule 3-7.7)

Once a report of referee has been filed, the parties (the bar and the respondent) have the opportunity to seek review as a matter of right. The bar will determine whether it will exercise this right to a review of the matter by either the executive committee or full board of governors.

If neither party exercises the right to review, the uncontested report of referee is generally adopted by an order of the court issued by the clerk. Thereafter the disciplinary file is closed or monitored by the headquarters office as is appropriate.

If either party exercises the right to review, that party files a notice of intent to seek review of the report of referee. If the bar is the party seeking review, bar counsel files the notice for review initiating the appellate process. Briefs are allowed as permitted by the rules and consist of an initial brief, an answer brief, and a reply brief. If both parties exercise the right to review a cross-initial brief, cross-answer brief, and cross-reply brief will be allowed.

The court has discretion to grant oral argument.

After all briefs have been filed and oral argument has been held or not allowed, the court will issue an order or opinion concerning the matter. Thereafter the disciplinary file is closed or monitored in the headquarters office as appropriate.

Glossary

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REGULAR DISCIPLINARY CASES - DETAILED PROCEDURES

Regular Disciplinary Cases - Detailed Procedures

Glossary

- 36 -


Overview

Glossary

- 37 -


Staff Level Screening & Investigation

Staff Level Screening and Investigation

A regular disciplinary case consists of distinct levels of investigation. The initial investigation is conducted by intake bar staff and consists of three screening functions.

Glossary

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Sworn Statement Required 3-7.3(c))

Sworn Statement Required

The first screening is whether the matter contains the required sworn statement or, if it does not, is the bar going to proceed in its own name. 3-7.3(c)

Rarely, if ever, will intake bar counsel send an unsworn allegation to a respondent and request a response. If intake bar counsel determines the bar will proceed with the investigation in its own name, the inquiry screening process listed below will be initiated. If intake bar counsel closes the matter because of the lack of the sworn statement, intake bar counsel will send a copy of the closure letter and the allegations to the respondent.

Glossary

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Inquiry Screening (3-7.3(a))

Inquiry Screening

The second screening function determines whether the matter is an inquiry and may be closed as such or whether it is a disciplinary file and should be pursued. A case may be considered an inquiry when the allegations, if true, are not a violation of our rules of professional conduct or the allegations are about a lawyer over whom we do not have jurisdiction. 3-7.3(a)

Glossary

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Disciplinary Complaint Investigation

Disciplinary Complaint Investigation

The third screening is the first time a formal investigation is undertaken. Intake or branch bar counsel will conduct a sufficient investigation to determine whether the matter may be resolved without further proceedings or whether referral to the grievance committee is appropriate. Options available to intake or branch bar counsel at this level are:

Dismissal by staff;

No probable cause with concurrence of grievance committee chair; No probable cause with letter of advice with concurrence of grievance

committee chair;

Referral to mediation;

Referral to fee arbitration; Diversion to a practice and professionalism enhancement program with

concurrence of the chair and staff counsel; or Referral to a grievance committee for further investigation and prosecution.

Bar counsel should determine whether proof exists to support the allegations; if the evidence supports the conclusion that the respondent did not engage in the alleged misconduct; if evidence of a violation exists, and whether such evidence is sufficient to meet the bar’s burden of proof (clear and convincing), in determining the appropriate action.

If bar counsel concludes that sufficient evidence exists to support the allegations or that there is a bona fide dispute, bar counsel should refer the case to the grievance

committee for its consideration.

Glossary

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Dismissal by Staff (3-7.3(d) and (g))

Dismissal by staff

When intake or branch bar counsel determines that a file should be dismissed by staff, intake or branch bar counsel will draft a letter to the complainant explaining the reasons for closure of the file. A copy of this letter is served on the respondent.

Glossary

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No Probable Cause with Concurrence of the Grievance Committee Chair (3-7.3(d))

No probable cause with concurrence of grievance committee chair

If intake or branch bar counsel counsel determines that a file should be closed with a finding of no probable cause and wants a second opinion on that disposition, intake or branch bar counsel may contact the grievance committee chair and provide the chair with whatever information is needed to allow the chair to reach an appropriate conclusion concerning the recommendation. If the chair concurs, intake or branch bar counsel will prepare a letter explaining the reason for the finding of no probable cause and shall provide a copy to the complainant, respondent, grievance committee chair, and the designated reviewer. 3-7.3(d)

Glossary

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No Probable Cause & Letter of Advice with Concurrence of the Grievance Committee Chair (3-7.3(d))

No probable cause with a letter of advice with concurrence of grievance committee chair

If intake or branch bar counsel determines that a file should be closed with a finding of no probable cause with a letter of advice and wants a second opinion on that disposition, intake or branch bar counsel will contact the grievance committee chair and provide the chair with whatever information is needed to allow the chair to reach an appropriate conclusion concerning the recommendation. If the chair concurs, intake or branch bar counsel will prepare a letter report explaining the reason for the finding of no probable cause that contains the letter of advice and shall provide a copy to the complainant, respondent, grievance committee chair, investigating member (if any), and the designated reviewer.

Glossary

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Referral to Fee Arbitration/Mediation

Referral to the fee arbitration program

If intake or branch bar counsel determines that the issues involved in the case are properly classified as a fee dispute not involving a clearly excessive, illegal, or fee prohibited by the Rules Regulating The Florida Bar, intake or branch bar counsel may offer to refer the matter to the fee arbitration program and close the disciplinary file. Both the complainant and respondent must agree to fee arbitration. If either does not, intake or branch bar counsel will evaluate the case to determine if it may be pursued. If the case cannot be pursued, intake or branch bar counsel will close the file.

If the arbitration is agreed to by the complainant and the respondent, the fee arbitration coordinator in ACAP will process the arbitration file.

If the respondent fails to participate in agreed arbitration the respondent’s failure may be addressed by additional disciplinary inquiry initiated by intake or branch bar counsel.

Referral to grievance mediation program

If intake or branch bar counsel determines that the issues involved in the case are best suited for resolution by mediation, intake or branch bar counsel may offer that resolution to the complainant and respondent. Both the complainant and the respondent must agree to mediation. If either does not, intake or branch bar counsel proceeds in the ordinary course of business. If both parties agree to mediation the disciplinary file is closed and shall remain closed as long as the respondent participates in the mediation and abides by the terms of any mediation agreement that may be reached. If the respondent fails to participate or fails to comply with the terms of the mediation agreement, that failure may be pursued as a separate violation of the Rules Regulating The Florida Bar. 3-8.1

Once both parties have agreed to participate in mediation, the file should be forwarded along with a brief summary of the issues to the mediation coordinator in ACAP for assignment of a mediator.

Glossary

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Diversion to a Practice & Professionalism Enhancement Program (3-5.3(d) & 3-7.3(e))

Diversion to a Practice and Professionalism Enhancement ProgramWhen bar counsel determines that a case may be properly concluded by diversion, bar counsel must receive the approval of the grievance committee chair, staff counsel, and the designated reviewer. Bar counsel will confer with the CBDC and consult staff counsel before conferring with the designated reviewer. If the diversion recommendation is approved by the chair and staff counsel, (3-5.3(d)) bar counsel will consult the designated reviewer. If the designated reviewer approves the diversion recommendation, bar counsel will serve the recommendation on the respondent, or the respondent’s counsel, if represented. 3-5.3(f) The respondent has 15 days from the date of service plus 5 days for mailing in which to reject the recommendation or the diversion shall become final. 3-5.3(f); 3-5.1(b)(3) & 1-13.1(b). If accepted or the time to reject expires without rejection, bar counsel shall direct appropriate data base entries.

The headquarters office staff is responsible for scheduling diversion and seeing that all conditions are met. If a respondent fails to fully comply, the matter is referred back to bar counsel for further proceedings. 3-5.3(k)

Costs for diversion may include out of pocket expenses incurred in the underlying discipline case; and the costs of the particular components to which diversion is made:

ethics school $750.00trust accounting workshop $750.00professionalism workshop $750.00advertising workshop $750.00stress management workshop $750.00LOMAS $1,500.00*Florida Lawyers Assistance, Inc. $250.00 registration fee

$100.00 monitoring feepaid monthly

Costs are collected by lawyer regulation headquarters staff.

If the diversion recommendation is not approved, bar counsel will process the case as a regular disciplinary file.

* LOMAS LANGUAGERespondent shall contact LOMAS within thirty (30) days of acceptance of the diversion recommendation in order to schedule a LOMAS review. Respondent shall fully comply with and implement, at respondent’s sole cost and expense, all recommendations made by LOMAS within sixty (60) days of the recommendation. LOMAS will provide the Lawyer Regulation Department of The Florida Bar with status reports.

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Referral to the grievance committeeIf bar counsel does not recommend diversion, referral to fee arbitration, referral to mediation, or closure of the file, the remaining option is referral of the file to a grievance committee for further proceedings.

Glossary

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Referral to the Grievance Committee (3-7.3(f))

Referral to the grievance committee

If bar counsel does not recommend diversion, referral to fee arbitration, referral to mediation, or closure of the file, the remaining option is referral of the file to a grievance committee for further proceedings.

Glossary

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Grievance Committee Procedures

Grievance Committee Level Procedures

Bar counsel refers cases to grievance committees if there is sufficient evidence of a rule violation.

The grievance committee chair assigns a member of the committee to conduct whatever further investigation is required. The investigating member conducts the necessary investigation and makes a report to the full committee. The committee may make a finding of no probable cause without the necessity of scheduling a live hearing or paper review. If the committee believes that they may find probable cause or minor misconduct, then a formal notice of review must be sent to the respondent. In such circumstances, the record to be considered by the grievance committee will be provided to the respondent along with an opportunity for respondent to make a written statement. Each committee decides whether they will consider the matter with a paper review or with a live hearing.

Upon review of a matter the grievance committee may:

Refer the matter to mediation; 3-8.1(h) (1) (B) Refer the matter to fee arbitration; Ch. 14 Recommended diversion to a practice and professionalism enhancement program

(requires concurrence of staff counsel and the designated reviewer); 3-7.4(o)

Enter a finding of minor misconduct (requires concurrence of the designated reviewer); 3-7.4(m)

Enter a finding of no probable cause; 3-7.4(j) (1) Enter a finding of no probable cause with a letter of advice; 3-7.4(k) or Enter a finding of probable cause and direct that further proceedings be held.3-7.4(l)

Glossary

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Policy on Review of Continuing Complaints

Some complainants are dissatisfied when either bar counsel or a grievance committee either dismisses their complaint or finds no probable cause and wish to appeal the decision. Since the complainant is not a party to the disciplinary case, they do not have a right to appeal the decision. The board of governors however, has instituted a review proceedure as a matter of policy.

Review of Staff Dismissals

When Intake Counsel or Assistant Discipline Counsel dismisses a matter at staff level, the first review is conducted by

Director of ACAP or CBDC. The Director of ACAP or CBDC reads the file and makes a determination as to whether a sufficiently thorough investigation has occurred. If so, then the Director of ACAP or CBDC determines whether the file was properly closed or whether issues exist that should be resolved by a grievance committee. Once the Director of ACAP or CBDC makes the determination, the Director of ACAP or CBDC should notify the complainant and respondent in writing. If the decision is to keep the file closed, and if the complainant wants a further review, then the file is referred to the Chair of the grievance committee, who conducts the same review as the Director of ACAP or CBDC. If the chair concurs with the Director of ACAP or CBDC, the complainant and respondent should be notified in writing. There is no further review.

If the Director of ACAP or CBDC is bar counsel then the only review is conducted by the chair of the grievance committee.

Review of Grievance Committee Dismissals

Review of a grievance committee dismissal can only be conducted by the designated reviewer who has 30 days after the mailing date of the notice of grievance committee action to refer the matter to the disciplinary review committee. rule 3-7.5(b).

Lawyer Regulation File Review Database

Complainants who are dissatisfied with the closure of their complaints often call headquarters or the executive director's office to complain. Since all file reviews are conducted locally at the branch, a database has been created which can be accessed by headquarters or the executive director's staff. This database lists the complainant's and respondent's name and all letters concerning the dismissal are attached. The information in the database allows staff in Tallahassee to accurately respond to the caller and inform them whether there are additional reviews available or whether the review process has been completed.

The accuracy of this database is essential and must be updated with each letter as it is produced.

Glossary

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Designated Reviewer Authority Procedures

Designated Reviewer Authority and Procedures

The designated reviewer has the authority to review all actions of the grievance committee to which the designated reviewer is assigned. The designated reviewer has 30 days from the mailing date of the grievance committee action in which to object or the action of the committee shall become final. 3-7.5(b). In order for the designated reviewer to exercise this authority a copy of all final action of the grievance committee is provided to the designated reviewer by bar counsel.

If the designated reviewer objects to the action of a grievance committee bar counsel may attempt to resolve the dispute between the designated reviewer and the committee by asking the grievance committee to reconsider its action. If the grievance committee does not reconsider and the designated reviewer continues to object, bar counsel prepares an agenda item for referral of the matter to the disciplinary review committee and board of governors. 3-7.5(a).

Glossary

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Trial Level Procedures

Trial Level Procedures

If any grievance committee has entered a finding of probable cause or, if a finding of minor misconduct is rejected by the respondent the trial level is engaged.

If the grievance committee has entered a finding of probable cause the respondent has fifteen days after service of the notice of finding of probable cause in which to file admission of minor misconduct. 3-5.1(b) (5). If an admission is filed, bar counsel will present the admission to the grievance committee, which may reject same and direct the matter to proceed as previously determined, or the grievance committee may accept the admission. If the admission is accepted by the grievance committee, bar counsel shall process the file as a finding a minor misconduct.

Bar counsel drafts a formal complaint, forwards the complaint to the grievance committee chair for review and signature, forwards the signed complaint and a venue sheet to staff counsel for review and signature, and the complaint is filed with the Supreme Court of Florida by headquarters’ staff. 3-7.4(l) & (p) If a related case exists, then bar counsel should also forward a Notice of Related Case with the complaint to headquarters.

The court will determine the proper venue and forward the complaint to the chief judge of that circuit who will assign another judge to function as the referee. 3-7.6(a)

Discovery is conducted in accordance with the rules of civil procedure. 3-7.6(e) (2). A non-jury adversarial trial is held with venue being in the county where the respondent resides, where the respondent last practiced law in Florida, or wherever the offense occurred. 3-7.6(c). At the trial the bar and the respondent may present evidence, examine witnesses, cross examine witnesses, and make legal argument. 3-7.6(b). The referee will determine whether the trial is bifurcated into a guilt phase and a discipline phase or whether there will be one final hearing.

Bar counsel will cause the date of the final hearing to be recorded in appropriate databases.

The referee will render a report to the supreme court containing findings of fact and recommendations of guilt and a recommended sanction, if guilt is found. 3-7.6(k).

The referee has 180 days from the date of appointment in which to render the report. At the request of the court, bar counsel shall offer to assist the referee in filing a motion for extension of time. Bar counsel shall consult with respondent or respondent’s counsel concerning the respondent’s position on the extension and state the respondent’s position in the motion. The motion should be filed sufficiently in advance of the 180 day deadline so as to allow the court to rule before the time for filing the report has expired.

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At any time after the grievance committee has concluded its action a respondent may negotiate a consent judgment that must be approved by the designated reviewer and staff counsel before it may be considered by a referee or the board of governors. A referee may accept or reject a consent judgment. 3-7.9(a) & (b)

Glossary

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Board of Governors Procedures

Board of Governors Procedures

The board of governors (or the executive committee if time does not allow for full board review; 2-3.1) reviews all reports of referees that are based on a finding after trial, conditional guilty pleas in cases in which a referee has not been appointed, and all grievance committee action referred by the designated reviewer. 3-7.5(a) (1) & 3-7.9(a).

The board review is conducted through an agenda item process in which bar counsel prepares an agenda item and appropriate backup. That material is forwarded to the headquarters office and the disciplinary agenda is produced. The disciplinary review committee examines all cases placed on the disciplinary agenda and makes a recommendation to the board of governors concerning the proper disposition of each. 3-7.5(a) (1) & (2).

On review the board of governors may direct that review be sought, instruct bar counsel not to seek review, sustain the action of a grievance committee, overturn the action a grievance committee and substitute other action, approve a conditional guilty plea, or reject a conditional guilty plea. (3-7.5(a) (3)).

Notice of board action must be given to the respondent or respondent’s counsel. (3-7.7(c) (1)).

Headquarters staff enters relevant data concerning action of the board.

Glossary

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Supreme Court Procedures

Supreme Court Procedures

When a report of referee is filed the court may review the record and if the matter is unopposed an order adopting the uncontested report of referee will be entered by the clerk’s office. If a report of referee is contested, briefs must be filed, an oral argument may be held, and the court will enter an order or opinion. 3-7.7(c) (6).

Headquarters staff enters relevant data concerning court action.

Glossary

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Bar Counsel's Investigative Responsibilities

Initial Investigations – Inquiry Level CasesIntake counsel or Bar counsel conducts initial reviews of new allegations (at this stage they are considered inquiries or Requests For Assistance ((RFA’s)) as contrasted with complaints). Intake or Bar counsel will determine whether the matter is an inquiry and should be closed as such or whether the matter is a disciplinary complaint that must be fully investigated. If the matter is determined to be a disciplinary complaint, intake or bar counsel will determine whether the required oath has been executed or whether the bar will proceed with the investigation in its own name. 3-7.3 (a), (c).

The questions to be answered by intake or bar counsel at the inquiry level are:

Is the allegation concerning a member of the bar over whom we have jurisdiction?If true, would the allegation constitute a violation of the Rules Regulating The Florida

Bar?

If either of these questions is answered in the negative, intake or bar counsel shall close the file as an inquiry.

If both of these questions are answered affirmatively, and if the oath has been executed, intake or bar counsel shall treat the file as a disciplinary complaint and an appropriate investigation will be undertaken. 3-7.3(b)

Initial Investigation – Disciplinary ComplaintsIntake or Bar counsel usually initiates an investigation into a disciplinary complaint by sending a copy of the complaint to the respondent and soliciting a mandatory response. 4-8.4(g). The general time frame for the response is fifteen days, plus five days for mailing. 4-8.4(g)(1) & 1-13.1(b).

Fairness and thoroughness require that the complainant be given an opportunity to reply to the mandatory response and provide information or evidence in rebuttal. Intake or Bar counsel or respondent shall provide a copy of the mandatory response and the complainant is afforded ten days in which to respond.

If, after receiving the complainant’s reply, it is necessary to seek further response from the respondent, intake or bar counsel shall send a copy of the reply and solicit another mandatory response. 4-8.4(g). The respondent shall have ten days to respond, plus five additional days for mailing. 4-8.4(g)(2).

Intake or Bar counsel shall evaluate the additional mandatory response and determine whether it is necessary to seek the complainant’s position concerning same. If so, intake or bar counsel shall solicit additional rebuttal, analyze same and determine whether respondent should be contacted once more. Intake or Bar counsel will repeat this notice, response, reply, additional

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notice, etc., procedure until intake or bar counsel is satisfied that all relevant and necessary evidence has been discovered. The use of staff investigators to conduct a full investigation of the allegations is encouraged.

After conducting initial investigations, intake or bar counsel may:

- decline to pursue a complaint and close the matter. 3-7.3(d); - (with agreement of the grievance committee chair) recommend closure of the complaint - close the file with a finding of no probable cause accompanied by a letter of

advice. 3-7.3(e); - recommend diversion to a practice and professionalism enhancement program (with the

agreement of staff counsel, the grievance committee chair and the designated reviewer) 3-7.3(e);

- refer a matter to the grievance mediation program or fee arbitration program, 14-4.1(c) and 14-4.2(a);

- refer the file to the appropriate grievance committee for further proceedings.

Staff dismissals are usually made if the evidence does not support the allegations of misconduct. It is a mandate that upon such dismissals the complainant shall be notified of the dismissal and shall be given the reasons therefore. 3-7.3(d). Therefore, closure letters must include the relevant facts that led to the conclusion, without editorial characterization. Use of form close out letters, without setting forth a factual basis particular to the case at issue, is not proper. Likewise, except in the rare case, a close out letter should not contain more than necessary detailed explanation to explain the rationale for closing the case and to illustrate that a thorough investigation was completed.

If, however, after receipt of the answer and/or reply, issues of fact remain unresolved that prevent intake or bar counsel from crafting a well-reasoned dismissal letter, or, from determining, that there may be one (or more) violations, then, further investigation must be pursued. The rules mandate that in such circumstances, intake or bar counsel conduct a complete investigation.. 3-7.3(d). Intake or Bar counsel should, with the aid of bar staff investigators, attempt to resolve all issues of fact.

Policy on Judicial Referrals

Since the Rules Regulating The Florida Bar treat the judiciary differently from others concerning the confidentiality of investigative bar cases (see 3-7.1(h)), our policy is to have personal telephonic contact with all referrals from judges. During the telephonic conference, intake or bar counsel shall determine whether the judge wishes to be kept informed of the progress of the case. Subsequent to the conversation, case note or a memo shall be prepared reflecting the date of contact, and whether the judge wishes to be kept informed of the case. The case note or memo shall be placed in a prominent place in the file. Also a pop-up alert should be added to the CAMFI file indicating the matter is a judicial referral. Most matters brought to the bar's attention by the judiciary are not brought through a sworn complaint and unlike unsworn complaints from

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non judicial sources, we will open a file under the name of TFB and conduct our investigation. Our policy is to keep the referring judge updated, if that is the Judge's desire, when critical stages of the disciplinary proceeding are reached (when a case moves from staff to GC, when the GC action becomes final, etc.)

Standing Board Policy

15.91 Policy on Judicial Referrals and Complaints

Issues of professional misconduct are brought to the attention of the bar from judicial officers by specific complaint executed in the form required by rule 3-7.3, by referral required or permitted by rule 4-8.3, or by language included in court orders or opinions. Regardless of how judicial referrals come to the attention of the bar, this policy codifies how the information should be handled.

Upon receipt of this information, bar records should reflect the name of the judicial officer as the complaining witness if the formal requirements of rule 3-7.3 are met. If this information is brought to the bar's attention by referral under rule 4-8.3 or by language in a court order or opinion, bar records should reflect the name of the complaining witness as "The Florida Bar referral of [name of judicial officer]."

In these matters The Florida Bar shall send an acknowledgement of receipt of the information to the judicial officer and should keep the judicial officer informed as to the progress of the case. Specifically, the judicial officer should be:

(a) informed when bar counsel is assigned;

(b) given a copy of the respondent's replies to bar counsel's inquiries, with the opportunity to respond thereto;

(c) informed if the matter is closed by staff and the reasons the file was closed;

(d) informed if the case is assigned to a grievance committee and provided with the name of the investigating member;

(e) given a copy of the respondent's replies to inquiries from the grievance committee, with the opportunity to respond thereto;

(e) given notice of any grievance committee hearing or review;

(f) informed if the matter is closed by the grievance committee and the reasons the file was closed;

(g) informed as to other action disposing of the matter by the grievance committee;

(h) given a copy of all pleadings filed at the referee level;

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(i) given a copy of the referee's report;

(j) advised as to what action, if any, will be taken by the bar on appeal; and

(k) given a copy of the order or opinion of the Supreme Court of Florida concluding the matter.

© The Florida Bar - 2005 - Version 1.0.1

A letter of referral from a member of the judiciary will be confidential unless it is used in the disciplinary case as provided by 3-7.1(b). A telephone call from a member of the judiciary is also confidential unless the information is transcribed and used in the disciplinary case as provided by 3-7.1(b).

Standing Board Policy 15.91 requires bar counsel to communicate with Judicial officers when they refer matters to the Bar. The initial communication should include whether the Judge wishes to be the named complainant or whether the Judge wishes to remain anonymous. If the choice is anonymous, then the file is opened with TFB as the complainant. This will require some tailoring of the 15 day letter since the respondent will not be receiving the referral letter. Instead, the 15 day letter will contain a recitation of the facts as alleged in the referral, and will require respondent to respond to those allegations. In some cases, the referring Judge will simply supply a Court Order. In those instances, send the Court Order and require respondent to address the issues contained within the Order.

If respondent seeks to know the identity of the source of our information, we should not provide

the source. This issue has been litigated and the anonymity has been sustained. lidsky.pdf

If intake or bar counsel determines that the case should be closed without being forwarded to the grievance committee, The Director of ACAP or Chief Branch Discipline Counsel must concur in the staff dismissal

Board Policy on Closure of Files and Deferral to Civil or Criminal Investigations

The Board has adopted a policy that allows closure of files when the same or substantially similar issues of attorney misconduct may be resolved by other appropriate authorities such as trial or appellate court judges. The policy is:

"15.55 Deferral of Disciplinary Investigation During Civil or Criminal Proceedings

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As a general rule, disciplinary investigations should be conducted with dispatch. However, because some individuals may attempt to use the disciplinary process as a tool to obtain leverage in a civil proceeding that is pending in court, or a criminal defendant may attempt to manipulate the trial process by interjecting frivolous allegations of unethical conduct against prosecuting or defense counsel, there are instances in which the disciplinary process should subjugate itself to the civil or criminal courts.

The Supreme Court of Florida has ruled that the disciplinary process and proceedings are not to be used as a substitute for civil proceedings and remedies. See , The Florida Bar v. Della-Donna , 583 So.2d 307 (Fla.1989). This holding rationally applies in criminal proceedings as well.

The authority of the board of governors to defer or suspend disciplinary investigations is provided in rule 3-7.4(e), Rules Regulating The Florida Bar. Therefore, in order to define those instances when deferral is appropriate, this policy is enacted.

Deferral in Civil Cases

When an inquiry or disciplinary complaint is filed and the conduct involves ongoing civil litigation, intake or bar counsel shall analyze the complaint and determine if the issues involved are of the sort that they may be adjudicated in the civil litigation. If so, intake or bar counsel may, with the concurrence of the chief branch discipline counsel, close the file and defer investigation of the disciplinary complaint until such time as the civil litigation has concluded.

After conclusion of the civil proceedings or at such time as it becomes apparent that the civil authority will not address the issue of misconduct, intake or bar counsel shall evaluate the matter and determine if further proceedings are appropriate. If intake or bar counsel determines that further proceedings are not appropriate, intake or bar counsel may decline to reopen the file with the concurrence of the Director of ACAP or chief branch discipline counsel.

Deferral in Criminal Cases

When an inquiry for disciplinary complaint is filed by a criminal defendant, intake or bar counsel shall analyze the complaint and determine if the issues involved are of the sort that they may be addressed by the trial judge in a Nelson hearing or other similar proceeding. If so, intake or bar counsel may, with the concurrence of the Director of ACAP or chief branch discipline counsel, defer investigation of the disciplinary complaint until the conclusion of the criminal proceedings at the trial level.

After conclusion of the criminal trial, intake or bar counsel shall evaluate the matter and determine if further proceedings are appropriate. If intake or bar counsel determines that further proceedings are not appropriate, intake or bar counsel may close the file with the concurrence of the Director of ACAP or chief branch discipline counsel.

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Notice of deferral shall be given to the designated reviewer. If the designated reviewer disagrees with deferral, the issue shall be presented to the executive committee or board of governors for resolution of the disagreement."

In cases of complaints by or on behalf of criminal defendants, intake or bar counsel should inquire of the respondent and/or other knowledgeable persons whether Nelson hearings or other criminal court review are available to address the complaints. If so, Bar counsel should apply the Board policy as stated elsewhere herein and defer investigation of the matter.

As soon as intake or bar counsel becomes aware that a complaint raises the same issues that are raised in other proceedings, intake or bar counsel should determine whether the issues raised in the complaint are likely to be resolved therein. If so, intake will refer the matter to the branch with a recommendation the matter be deferred. If Bar counsel agrees with receommendations. bar counsel shall recommend to the chief branch discipline counsel that the file be deferred per the Board policy. If the chief branch discipline counsel concurs, the case will be deferred and notice of same will be given to Staff Counsel and the Designated Reviewer. If the Designated Reviewer does not concur with the deferral and the chief branch discipline counsel does not agree with the Designated Reviewer, the matter must be brought before the Board or Executive Committee for resolution. If the Designated Reviewer agrees with, or fails to timely object to deferral, notice shall be given to the complainant and respondent.

Notice of deferral shall inform the complainant and respondent of the basis for deferral and that the file will be placed on monitor status unless information is provided showing that the issue(s) involved were resolved with findings that misconduct was committed by the respondent or that the issues were not addressed by the other authorities. Upon receipt of such information intake or bar counsel must re-evaluate the complaint. A decision by intake or bar counsel to close a file shall be reported to the chief branch discipline counsel who may direct further action, if appropriate.

Investigation of Cases Referred to Grievance CommitteesIn all cases, except where impossible or totally impractical, files that are forwarded to grievance committees should be complete so that the committee need only assess the information contained therein and address the alleged violations.

While files may be forwarded to committees for the purpose of investigation (3-7.3(e)), the rule speaks in terms of further investigation. This further investigation should be interpreted to mean supplemental investigation that the committee determines is necessary after receiving the file from bar counsel. By thorough investigation at staff level, prior to forwarding files to grievance committees, bar counsel will acquire the factual information necessary to know whether a dismissal or referral to a grievance committee is in order.

The chair of the grievance committee may assign a member of the committee as the investigating member for a particular case. While that investigating member has responsibility for completing any “further investigation” necessary, bar counsel has the ultimate responsibility to see that such is accomplished. Bar counsel should offer the investigating member the assistance of staff investigators to aid in the swift and thorough conclusion of the “further investigation”.

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Trial Level InvestigationsBar counsel has the responsibility to draft formal complaints based on grievance committee action. If it is necessary to conduct an investigation before filing the complaint, that responsibility falls to bar counsel. If assistance is required, bar counsel should use the services of a staff investigator and, if compulsion of law is required for discovery, bar counsel may obtain subpoenas from the chair of the grievance committee to gather documents necessary to complete the investigation and drafting of the complaint. 3-7.11(d)(4).

Once a formal complaint has been filed and the referee appointed, discovery is available to bar counsel under the rules of civil procedure. It should be noted, however, that subpoenas in bar disciplinary cases may be issued only by the judicial referee. 3-7.11(d)(1).

Referral of crimes to State Attorney's OfficeWhenever a bar investigation reveals evidence of criminal conduct, bar counsel has the responsibility to notify the State Attorney of the appropriate judicial circuit.

Glossary

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Detailed Grievance Committee Procedures

MembershipA grievance committee shall consist of not less than 3 members, at least one-third of whom shall be nonlawyers. 3-3.4(c). The designated reviewer appoints members of the committee and designates a chair and vice-chair with the concurrence of the board of governors. Lawyer members of a grievance committee must have been admitted to the bar for at least 5 years. 3-3.4(c).

A GRIEVANCE COMMITTEE CANNOT FUNCTION WITHOUT THE REQUIRED MINIMUM NUMBER OF PUBLIC MEMBERS.

Oath RequiredEach member of the grievance committee must execute an oath before becoming eligible to serve. 3-3.4(f).

Terms of ServiceThe term of membership shall be no more than three consecutive 1-year terms and the terms of the committee members should be staggered so as to preserve institutional knowledge on each grievance committee. 3-3.4(d). Under certain circumstances a member’s term may expire while that member has not concluded an existing investigation. In the event that a committee member continues to serve beyond the expiration of the term of membership, bar counsel shall take care that such continuous service does not otherwise alter the minimum number of public members required to serve on a grievance committee. If continued service of a lawyer member would affect the proper public membership of a grievance committee, additional public members may be temporarily appointed in order to preserve the required public participation. The better practice is to “freeze” the membership of the committee until such time as the pending matter(s) are resolved. Note, however, that the “holding over” members cannot vote on new files sent to the committee after the time the holding over member’s term would have expired. The record must be clear on the lack of participation in the vote. 3-3.4(d).

Presiding OfficerThe chair is the presiding officer over the deliberations of the committee, assigns investigations and rules on pending motions. Bar counsel should take an active role in advising the chair as to when an investigative member should be appointed and who that person should be. 3-3.4(e).

The chair issues subpoenas for production of documents or attendance of witnesses before the grievance committee. 3-7.11(d)(2).

The chair of the committee, with the assistance of bar counsel, is required to keep a docket of complaints as filed and assigned to various members of the committee and shall require panels to act expeditiously in the considerations of the matters assigned. Bar counsel is required to provide the chair and the committee with regular status reports concerning cases in which the committee has found probable cause for further disciplinary proceedings or minor misconduct. 3-7.4(f).

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Bar counsel should establish and maintain a good line of communication with the chair of each committee. As a result of good communication between bar counsel and the chair, along with the advice of the CBDC, procedures must be established that accomplish the goals set for bar counsel to appropriately move cases through the grievance committee. Bar counsel should then maintain close contact with the chair or the investigative member on each case assigned to the committee.

When the chair is unavailable, the vice-chair assumes the powers of the chair and becomes the presiding member of the committee.

Meetings and Hearings; Quorums & PanelsA quorum of the grievance committee is required to conduct business. Three members of the committee, two of whom and must be lawyers, constitutes a quorum. 3-7.4(g)(1).

The committee is authorized to meet in panels of not fewer than three members. The panel shall consist of two lawyers and one nonlawyer, thereby preserving the publics participation in the consideration of disciplinary cases referred to a grievance committee. The panel shall select a lawyer member to preside if the chair or vice-chair is not on the panel. 3-7.4(g)(2).

Notice of Referral to GC; List of MembersWhen a complaint is referred by bar counsel to a grievance committee or to a panel thereof, notice of the referral is given to the respondent. At a reasonable time before a finding of probable cause or minor misconduct, the respondent shall be given a list of grievance committee members who may be assigned to hear the case. Bar counsel prepares the notice and list of committee members and serves same on the respondent. 3-7.4(a).

Disqualification of Grievance Committee Members A committee member is not eligible to serve or consider a case if the member is:

related by blood or marriage to the complainant or respondent;has a financial, business, property, or personal interest in the case for with the respondent

or complainant;has a personal interest that could be affected by the outcome of the case; oris prejudiced or biased toward either the complainant or the respondent.

3-3.4(c)(1)–(4).

SUMMARY PROCEEDINGS (Paper Hearings):The committee is not required to hold a hearing prior to a finding of minor misconduct or probable cause for further disciplinary proceedings. The only requirement as a condition precedent to a finding of minor misconduct or probable cause is that a copy of all materials to be considered by the grievance committee shall be given to the respondent who shall be given an opportunity to make a written statement concerning the disciplinary case prior to the committee’s vote. 3-7.4(h).

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The committee may determine it is necessary to take live testimony from witnesses. If so, the committee is not required to allow the respondent to be present. In this regard, a transcript of the testimony may be provided to the respondent who thereafter shall be given an opportunity to make a written reply or comment concerning that testimony prior to the committee’s vote. As a matter of policy and as required by 3-7.4(i), whenever a respondent is present before the grievance committee, the complaining witness must also be given the opportunity to be present so that allegations of undue influence or unfair advantage cannot be claimed. The chair or presiding officer for the committee has discretion in this regard.

Board Policy on Closure of Files and Deferral to Civil or Criminal Investigations

The Board has adopted a policy that allows closure of files when the same or substantially similar issues of attorney misconduct may be resolved by other appropriate authorities such as trial or appellate court judges. The policy is:

"15.55 Deferral of Disciplinary Investigation During Civil or Criminal Proceedings

As a general rule, disciplinary investigations should be conducted with dispatch. However, because some individuals may attempt to use the disciplinary process as a tool to obtain leverage in a civil proceeding that is pending in court, or a criminal defendant may attempt to manipulate the trial process by interjecting frivolous allegations of unethical conduct against prosecuting or defense counsel, there are instances in which the disciplinary process should subjugate itself to the civil or criminal courts.

The Supreme Court of Florida has ruled that the disciplinary process and proceedings are not to be used as a substitute for civil proceedings and remedies. See , The Florida Bar v. Della-Donna , 583 So.2d 307 (Fla.1989). This holding rationally applies in criminal proceedings as well.

The authority of the board of governors to defer or suspend disciplinary investigations is provided in rule 3-7.4(e), Rules Regulating The Florida Bar. Therefore, in order to define those instances when deferral is appropriate, this policy is enacted.

Deferral in Civil Cases

When an inquiry or disciplinary complaint is filed and the conduct involves ongoing civil litigation, bar counsel shall analyze the complaint and determine if the issues involved are of the sort that they may be adjudicated in the civil litigation. If so, bar counsel may, with the concurrence of the chief branch discipline counsel, close the file and defer investigation of the disciplinary complaint until such time as the civil litigation has concluded.

After conclusion of the civil proceedings or at such time as it becomes apparent that the civil authority will not address the issue of misconduct, bar counsel shall evaluate the matter and determine if further proceedings are appropriate. If bar counsel determines that further proceedings are not appropriate, bar counsel may decline to reopen the file with the concurrence of the chief branch discipline counsel.

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Deferral in Criminal Cases

When an inquiry for disciplinary complaint is filed by a criminal defendant, bar counsel shall analyze the complaint and determine if the issues involved are of the sort that they may be addressed by the trial judge in a Nelson hearing or other similar proceeding. If so, bar counsel may, with the concurrence of the chief branch discipline counsel, close the file and defer investigation of the disciplinary complaint until the conclusion of the criminal proceedings at the trial level.

After conclusion of the criminal trial, bar counsel shall evaluate the matter and determine if further proceedings are appropriate. If bar counsel determines that further proceedings are not appropriate, bar counsel may decline to reopen the file with the concurrence of the chief branch discipline counsel.

Notice of deferral shall be given to the designated reviewer. If the designated reviewer disagrees with deferral, the issue shall be presented to the executive committee or board of governors for resolution of the disagreement."

In cases of complaints by or on behalf of criminal defendants, bar counsel should inquire of the respondent and/or other knowledgeable persons whether Nelson hearings or other criminal court review are available to address the complaints. If so, Bar counsel should apply the Board policy as stated elsewhere herein and close the file.

As soon as Bar counsel becomes aware that a complaint raises the same issues that are raised in other proceedings, bar counsel should determine whether the issues raised in the complaint are likely to be resolved therein. If so, Bar counsel shall recommend to the chief branch discipline counsel that the file be closed per the Board policy. If the chief branch discipline counsel concurs, the case will be closed and notice of the closure will be given to Staff Counsel and the Designated Reviewer. If the Designated Reviewer does not concur with the closure and the chief branch discipline counsel does not agree with the Designated Reviewer, the matter must be brought before the Board or Executive Committee for resolution. If the Designated Reviewer agrees with, or fails to timely object to closure, notice shall be given to the complainant and respondent.

Notice of closure shall inform the complainant and respondent of the basis for closure and that the file will remain closed unless information is provided showing that the issue(s) involved were resolved with findings that misconduct was committed by the respondent or that the issues were not addressed by the other authorities. Upon receipt of such information bar counsel must re-evaluate the complaint. A decision by Bar counsel to keep a file closed shall be reported to the chief branch discipline counsel who may direct further action, if appropriate.

Nature of ProceedingsThe grievance committee is an investigatory body and does not conduct a true adversarial proceeding. 3-7.4(d).

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The purpose of the committee is to conduct the investigation and determine whether there is probable cause for further disciplinary proceedings. Probable cause is defined as:

A finding by an authorized agency that there is cause to believe that a member of The Florida Bar is guilty of misconduct justifying disciplinary action. 3-2.1(j).

To assist the committee in reaching its determination, the chair and vice-chair of the committee are authorized to issue subpoenas. 3-7.11(d) (2). Bar counsel should assist and advise the chair in this regard. Respondent does not have the right to have subpoenas issued. However, the chair, after a proffer from the respondent as to the anticipated testimony of a prospective witness, may issue a subpoena if the testimony will assist the committee in its investigation.

Weight and Quality of EvidenceBecause of the nonadversarial and investigatory nature of grievance committee proceedings, the committees are less restricted than a referee in the quality of evidence that may be considered. Therefore, sworn and unsworn statements of witnesses are appropriate for consideration by a grievance committee if there is difficulty in obtaining sworn statements. The committee should be made aware that disciplinary proceedings before the referee require a clear and convincing evidentiary standard. That standard has been defined by the Supreme Court of Florida as a standard that requires more than the standard of civil cases but less than a reasonable doubt standard used in criminal cases. The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

In reaching a determination as to whether probable cause exists, the committee or panel may take into consideration the weight of evidence requirement as it exists before the referee; however, the committee is not to be guided by or required to make its determination based upon the existence of clear and convincing evidence.

Public Record Requests for Transcripts

When a grievance committee hears live testimony and a court reporter is present, but a transcript of that testimony is not prepared, the transcript would be a public record. That does not mean that TFB pays for the testimony to be transcribed, it only means that we can authorize the court reporter to prepare a transcript of the testimony. The person requesting the transcript is responsible for paying the cost of the transcript.. If TFB ordered the transcript and the transcript is in our file, then we only charge the standard copying cost. (Standard costs will be free up to 65 pages, 15 cents per page if over 65 pages total.)

Glossary

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Bar Counsel's Responsibility After GC Action

Bar counsel has the responsibility of preparing documents evidencing the final action of the grievance committee, obtaining required approval or signatures, service of the documents on the necessary individuals, and submitting appropriate data base entries.

The type of document, necessary approval and service required depends on the action of the grievance committee.

No probable cause findings 3-7.4(j)

In cases in which the committee has entered a finding of no probable cause bar counsel will draft a letter containing the finding of the grievance committee. It is also the responsibility of bar counsel to include enough detailed information about the complaint and the reasons for the committee’s action so the parties and anyone on review may have a fair understanding of the nature of the issues involved and the reasons for the committee’s action.

Bar counsel is not required to obtain any signatures for approval on these letters and may author them for bar counsel’s signature alone.

The letters of no probable cause are served on the complaining witness, respondent, grievance committee chair, and the designated reviewer.As soon after the grievance committee action as possible bar counsel will direct an appropriate database entry concerning the nature and date of the grievance committee action.

No probable cause findings with a letter of advice 3-7.4(k)

In cases in which the committee has entered a finding of no probable cause with a letter of advice, bar counsel will draft a letter report containing the finding of the grievance committee, including the advice to be rendered. It is the responsibility of bar counsel to include enough detailed information about the complaint and the reasons for the committee’s action. This is required so that the parties and anyone on review of the file will have a fair understanding of the nature of the issues involved and the reasons for the committee’s action.

Bar counsel is required to forward the letter of advice to the committee chair or other presiding officer for approval. If approved, bar counsel will serve the letter of advice on the respondent and provide copies to the complaining witness and the designated reviewer.

As soon after the grievance committee action as possible, bar counsel will direct an appropriate database entry concerning the nature of the committee action and the date thereof.

Minor Misconduct Recommendations 3-7.4(m)

When a committee recommends a finding of minor misconduct, bar counsel will prepare the

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committee report and forward the report to the chair for approval and signature. If the report is approved and signed, bar counsel will forward a copy of the report to the designated reviewer and staff counsel.

If staff counsel does not return the report for correction or if the designated reviewer does not timely (within 30 days of referral) object to the report, bar counsel will serve the report on the respondent and provide a copy to the complaining witness, designated reviewer, and staff counsel.

The respondent has 15 days plus 5 days for mailing in which to reject the finding of the committee. If the respondent does not timely reject the finding it shall become final.

As soon after the grievance committee action as possible, bar counsel shall direct an appropriate database entry to record the date and nature of the committee’s action.

As soon after the grievance committee action as possible, the report of minor misconduct is sent to the designated reviewer and bar counsel will direct an appropriate database entry to record that action.

When the designated reviewer has taken action or when that time for action has expired without any having been taken, bar counsel will direct an appropriate database entry to record the action of the designated reviewer.

When a report of minor misconduct is served on the respondent, bar counsel will direct an appropriate database entry to record the date of service. Additionally, bar counsel will direct an appropriate database entry indicating the deadline for the respondent to accept or reject the report.

When the respondent has accepted or rejected the report, or the time for rejection has expired without the response, bar counsel will direct an appropriate database entry indicating the action of the respondent.

If the respondent has not timely rejected the report of minor misconduct, bar counsel shall notify the respondent and headquarters office so that cost collection and, if appropriate, probation monitoring activities may be initiated.

Probable Cause Findings 3-7.4(l)

When a grievance committee enters a finding of probable cause bar counsel will draft and serve a notice on the respondent and send a copy to the complaining witness, designated reviewer, and staff counsel. The complaining witness should be kept informed of the proceedings.

Bar counsel will draft the complaint for filing with the court based on the findings of the grievance committee. When the complaint is drafted bar counsel will forward the complaint to the chair or other presiding officer for review and approval. If the complaint is approved, bar

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counsel will forward the complaint to staff counsel for filing with the court.

As soon as possible after the grievance committee entered the finding of probable cause, bar counsel will direct an appropriate database entry to record that date and the nature of the grievance committee action.

As soon as possible after the grievance committee action, bar counsel forwards the signed complaint to staff counsel for review and filing, and will direct an appropriate database entry to record the date the complaint was mailed.

Diversion 3-5.3

If the grievance committee recommends the closure of a disciplinary file and diversion of the matter to a practice and professionalism enhancement program bar counsel shall draft a report of such action. Bar counsel will forward the report to the grievance committee chair or other presiding officer for review and approval. If the report is approved bar counsel will forward the approved report by e-mail to staff counsel for review and approval and, if approved, to the designated reviewer for additional review and approval.

If staff counsel and the designated reviewer do not object to the report, bar counsel will serve the report on the respondent and provide a copy to the complaining witness, staff counsel and the designated reviewer.

As in cases of minor misconduct, the respondent has 15 days in which to reject the report or the committee referral to diversion will become final. If diversion is rejected, the matter is returned to the grievance committee for reconsideration.

If a respondent accepts the diversion report or if the time for rejection expires without action bar counsel shall report the appropriate action to headquarters so that the diversion may be scheduled and relative fees and costs collection initiated.

As soon as posible after the grievance committee recommends diversion, bar counsel will direct an appropriate database entry to record that date and the nature of the committee action.

As soon after the grievance committee action as possible, bar counsel sends the draft report to the committee chair and directs an appropriate database entry to record that date and action.

As soon as possible after the committee chair returns the signed report, bar counsel sends the approved committee report to staff counsel, and directs an appropriate database entry to record that date.

As soon as possible after staff counsel approves diversion, bar counsel sends the approved committee report to the designated reviewer and directs an appropriate database entry to record that action.

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As soon as possible bar counsel serves the respondent with a copy of the committee report, and directs an appropriate database entry to record that date.

As soon as possible after the respondent rejects the committee report, or on expiration of the time to do so without response, bar counsel will direct an appropriate database entry to record that date and the appropriate action.

Mediation 14.1

If a grievance committee determines that the mediation of the private issues between the complaining witness and respondent would also serve the purposes of the disciplinary system, the grievance committee may recommend closing the disciplinary file and referral of the matter to mediation. Bar counsel has the responsibility of drafting the appropriate document to extend an invitation to the complaining witness and the respondent.

Bar counsel is not required to obtain approval of the chair and may author the document for bar counsel’s signature alone. However, notice of the grievance committee action must be given to the designated reviewer and the designated reviewer must be given the opportunity to object to that action. If the designated reviewer does not object or if the time expires for the objection, bar counsel shall serve the invitation on the complaining witness and the respondent.

Mediation requires the agreement of both before it may be engaged. If both the complaining witness and the respondent agree to mediation, bar counsel shall close the disciplinary file, and refer the case to the program administrator at headquarters who will assign the matter to a mediator.

The mediator will issue a report concerning the results of the mediation conference. It is the program administrator's responsibility to review the report to determine if the respondent attended the conference, if the conference resulted in a resolution of the issues involved, and whether the respondent has fully complied with the terms of any mediation agreement.

In the event the respondent failed to attend the mediation, without good cause, the program adniistrator shall return the matter to the grievance committee for further review. If the mediation failed to resolve the issues, bar counsel should review the matter to determine if the grievance file should remain closed. Bar counsel will give notice of the decision to the complaining witness and respondent.

If the respondent fails to fully comply with the mediation agreement, bar counsel will return the file to the grievance committee for further investigation.

As soon as possible after the grievance committee recommends mediation, bar counsel will direct an appropriate database entry to record that date and the committee action.

As soon as possible after bar counsel serves the invitation to mediation, bar counsel shall direct an appropriate database entry to record that date.

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As soon as possible after the notice of the committee action was given to the designated reviewer, bar counsel shall direct an appropriate database entry to record that date.

As soon as possible after the complaining witness and the respondent accepts or rejects the invitation to mediation, bar counsel shall direct an appropriate database entry to record the relevant action.

If mediation is agreed to bar counsel will close the disciplinary file and direct an appropriate database entry to record the closure date and basis.

If, after review of the mediation report, bar counsel determines that further action is necessary, bar counsel will direct appropriate database entries to record the action taken.

Fee arbitration 14-1.1

As in cases involving committee recommendations of mediation, a recommendation for fee arbitration requires agreement of the designated reviewer and consent by both the complaining witness and the respondent.

When a committee recommends closure of a disciplinary file by referral to arbitration, bar counsel shall draft a report concerning the action and forward the report to the designated reviewer. The designated reviewer has 30 days in which to object to the recommendation or the committee report will become final and be served on the complaining witness and respondent.

If neither rejects the offer of arbitration bar counsel shall close the disciplinary file and route the matter to the headquarters office of lawyer regulation.

Thereafter it will be the responsibility of the headquarters office to obtain the appointment of arbitrators and the referral of the matter for arbitration.

As soon as possible after the grievance committee recommends referral to arbitration, bar counsel shall direct an appropriate database entry to record that date and action.

As soon as possible after the complaining witness and respondent respond to the invitation to arbitration bar counsel shall direct appropriate database entries to record those dates and actions.

If the invitations to arbitration are accepted bar counsel shall close the disciplinary file and direct an appropriate database entry to record the date of closure and the basis.

On the date bar counsel refers a file to the headquarters office, bar counsel shall direct an appropriate database entry to record that date and referral.

Plea (conditional guilty plea for consent judgment) 3-7.9(a)

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After grievance committee action that has resulted in the necessity for the drafting of a complaint for filing with the court, bar counsel may be approached by the respondent or may recommend that the matter be resolved by a conditional guilty plea. In such circumstances bar counsel shall obtain concurrence in the proposal by the chief branch discipline counsel. Thereafter bar counsel shall submit, by e-mail only, the tentative plea to staff counsel for review and approval.

If staff is in agreement, bar counsel will forward the proposed plea to the designated reviewer for approval. If the designated reviewer approves the plea, bar counsel shall prepare an agenda item for transmittal to headquarters for ultimate review and approval by the board of governors.

If the designated reviewer or staff counsel rejects a proposed plea bar counsel shall return to the process of drafting the complaint for filing with the court.

On the date that a respondent submits a proposed plea bar counsel will direct an appropriate database entry to record receipt of the plea.

On the date that bar counsel forwards the approved plea to the designated reviewer, bar counsel shall direct an appropriate database entry to record that date and referral.

On the date that the designated reviewer approves the plea or when the time for the designated reviewer to reject the plea has expired bar counsel will direct an appropriate database entry to record the action of the designated reviewer.

On the date that bar counsel submits the agenda item to the headquarters office, bar counsel will direct an appropriate database entry to record that referral.

Closing Files

When a grievance committee has entered action that requires closure of the disciplinary file it is the responsibility of bar counsel to give notice to affected parties and the designated reviewer. Bar counsel shall review the discipline file and make sure that it is prepared for filing and potential public inspection. Public documents shall be marked as such and filed in a separate section of the file in reverse chronological order. Duplicates shall be removed from the file and any original documents that should be returned to their rightful owners should be copied, if necessary, and the originals safely returned.

Docketing and Computer Database Requirements

Individual entries concerning database requirements are reflected above. Additionally bar counsel has the capacity to record miscellaneous, free-style entries. Bar counsel is encouraged to use such ability so reviewers and managers may have an up to date and complete understanding of the status and other important issues relating to the disciplinary file.

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Glossary

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Headquarters' Responsibility After GC Action

Minor Misconduct

Once a finding of minor misconduct becomes final, or is accepted by the respondent, the headquarters office has the responsibility to schedule the admonishment, if required by appearance before the board (bar counsel schedules any local appearance); collect assessed costs; and monitor any conditions of probation. It is the responsibility of bar counsel to direct appropriate data base entries to reflect the date that the minor misconduct became final and the amount of costs assessed.

Probable Cause

After a finding of probable cause the only responsibility placed on the headquarters office is the receipt, review, and filing of the formal complaint. In this respect the administrative secretary in the headquarters office receives the formal complaint and reviews the document for completeness and typographical errors. The complaint is forwarded to staff counsel for review and signature. If the formal complaint is signed by staff counsel, the administrative secretary makes appropriate copies, mails the original to the supreme court and serves a copy on appropriate persons.

Diversion

It is the responsibility of staff in the headquarters office to record the diversion in the appropriate data base and to schedule the respondent for compliance with the terms and conditions of diversion. This responsibility includes the collection of costs associated with the diversion.

The program assistant receives a copy of the final diversion recommendation from bar counsel and records the diversion and relevant conditions in the data base. The program assistant contacts the respondent and initiates action to collect the appropriate diversion related fees and schedules the respondent for attendance as required in the diversion recommendation.

Other staff in the headquarters office collects the disciplinary costs agreed to be paid as part of the diversion recommendation.

Mediation

The headquarters office will assign a mediator once it has received a synopsis of the issues involved and written agreement from both the respondent and complainant that they agree to mediation.

Fee Arbitration

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Like mediation, the headquarters office has responsibility for referral of agreements to arbitrate for assignment of arbitrators. Any data base entries concerning assignment of arbitrators, and entries concerning the arbitration hearing and award are the responsibility of headquarters staff.

Plea Agreements

Actions necessary to implement approved plea agreements are the responsibility of local bar counsel. In the headquarters office, staff counsel is obligated to review and approve pleas. Requests for approval by staff counsel should be made directly to the director of lawyer regulation, by e-mail. In this fashion the director of lawyer regulation will make a recommendation concerning the plea and staff counsel will authorize a response.

All data base entries associated with a plea are the responsibility of bar counsel.

Glossary

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Trial Procedures

Drafting, Review & Filing of Complaints (3-7.4(l)) It is the responsibility of bar counsel to draft the formal complaint, secure approval of the grievance committee chair, and forward the complaint to headquarters. It is the responsibility of the headquarters office and staff counsel to review, approve, file, and serve the approved formal complaints.

Supreme Court Docketing & Appointment of Referee (3-7.6(a))After an approved formal complaint is filed the clerk’s office will open a file and assign a supreme court case number. The headquarters office will record the supreme court case number in the data base. The chief justice will direct the chief judge, of the judicial circuit in which venue is determined, to appoint another judge to serve as a judicial referee.

Pretrial Responsibility of Bar Counsel (3-7.6(e) (2); (f); (g) & (h))It is the responsibility of bar counsel, before trial, to complete any necessary investigation in order to prepare the matter for trial by engaging in discovery practices. By administrative order the supreme court directs the judicial referee to hold a pretrial conference. At such conference, it is bar counsel’s responsibility to request discovery deadlines and a proposed trial date.

It is also the responsibility of bar counsel to prepare legal research and present relevant citations to prior disciplinary cases and the Florida Standards for Imposing Lawyer sanctions. Shortly after the pretrial conference, bar counsel must seek the designated reviewer's recommendation regarding the resolution of the case. This is accomplished by completing and emailing the form "Memo to DR Requesting Settlement Approval" to all parties listed in the form.

Discovery (3-7.6(e) (2))Discovery is available in the manner as provided in the Florida Rules of Civil Procedure. Subpoenas to aid in discovery are available by application to the judicial referee. 3-7.11 (d) (1).

Final Hearing (3-7.6(h)) The trial is known as a final hearing. Notice of not less than 10 days shall be given to the respondent and the bar. Under the rules a final hearing “shall be held as soon as possible following the expiration of ten days from the filing of the respondent’s answer, or if no answer filed, then from the date when such answer is due.” 3-7.6 (h).

Hearing on SanctionsAlthough not required to be on a separate date or in a separate hearing, by practice, a separate hearing on a later date may held for the purposes of recommending a disciplinary sanction.

Internal procedures in each branch office may differ slightly in respect of who is required to authorize the sanction that will be recommended by the bar. At a minimum, the chief branch discipline counsel and designated reviewer must be consulted as to sanctions. If the chief branch discipline counsel requires headquarters review, the approved branch recommendation shall be

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forwarded to the director of lawyer regulation for review, presentation to staff counsel, and response to bar counsel.

Costs Requirements (3-7.6(o))The rules specifically allow for assessment of costs against a respondent who is found guilty of disciplinary violations. The general rule is that the referee has discretion to award the amount and type of costs, however, the referee is limited to assessment of:

An administrative fee (currently $1250);Investigative costs, including travel and out of pocket expenses;Court reporters’ fees;Copy costs;Telephone charges;Fees for translation services;Witnesses expenses, including travel and out of pocket expenses;Travel and out of pocket expenses of the referee; andTravel and out of pocket expenses of counsel in the preceding, including the respondent,

if acting as counsel.

It is the responsibility of bar counsel to tabulate and request the assessment of costs. This is accomplished by the filing of an affidavit in the proceeding listing, in an itemized format, the costs incurred and requested for reimbursement. The affidavit should be executed by someone who has familiarity with the file, other than bar counsel. Bar counsel should have the affidavit ready for submission to the referee at the hearing on sanctions.

Because all costs may not be known at the time of a hearing on sanctions, the affidavit should state that other costs may be incurred subsequent to the date of the affidavit. Bar counsel shall request assessment of known costs and subsequently incurred costs to be identified later.

Notice to Clients (3-5.1(g))A respondent who is suspended, disbarred, or whose petition for disciplinary resignation is granted must give notice to all clients, opposing counsel and courts as of the date that the supreme court order is served. In addition to notice, the respondent is required to provide all persons given the notice with a copy of the court order. The respondent is required to file an affidavit with the headquarters office identifying, by name and address, all clients to whom notice and a copy of the court’s order is given. It is the responsibility of the headquarters office to obtain this affidavit and to review its contents.

Plea Agreements (3-7.6(m) & 3-7.9)The rules provide that a respondent may offer a conditional guilty plea for consent judgment at any time during the trial process.

Before formal complaint filed

If the plea is offered before the formal complaint is filed bar counsel shall review the plea with the chief branch discipline counsel and refer the plea to the director of lawyer regulation for

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review and recommendation to staff counsel. If staff counsel approves, bar counsel shall contact the designated reviewer for further review and agreement. If either staff counsel or the designated reviewer objects to the plea, the plea is rejected and bar counsel will advise the respondent. The consent judgment must include the type and amount of costs that are agreed to be paid.

Bar counsel shall request all costs associated with the file, unless such request is the only reason why a plea agreement cannot be reached. The director of lawyer regulation has the authority to approve a compromise in the assessment of costs.

If staff counsel and the designated reviewer approve the proposed plea, bar counsel shall prepare an agenda item to secure review by the board of governors. If the board approves the plea, bar counsel shall file, in the supreme court, a petition for approval of the conditional guilty plea together with the consent judgment.

If the board rejects the proposed plea, bar counsel shall give notice of the rejection to all appropriate persons and proceed to complete the trial process.

After formal complaint filed

If the plea is offered after the formal complaint is filed bar counsel shall review the plea with the chief branch discipline counsel and refer the plea to the director of lawyer regulation for review and recommendation to staff counsel. If staff counsel proves the plea bar counsel shall contact the designated reviewer for further review and approval. If both staff counsel and the designated reviewer approve the plea, bar counsel will file a petition for approval of the plea with the judicial referee.

Bar counsel shall request all costs associated with the file, unless such request is the only reason why a plea agreement cannot be reached. The director of lawyer regulation has the authority to approve a compromise in the assessment of costs.

If either the designated reviewer or staff counsel rejects the proposed plea, bar counsel shall give notice of the rejection to all appropriate persons and proceed to complete the trial process.

Glossary

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Memo to DR Requesting Settlement Approval

MEMORANDUM REQUESTING AUTHORITYFOR SETTLEMENT OR TRIAL

To: «DRConcatName», Designated Reviewer

Copy to: Staff Counsel, Legal DivisionDirector of Lawyer Regulation<CBDC Name>, Chief Branch Discipline Counsel

From: «TFBAtty», Bar Counsel

Re: The Florida Bar v. «RConcatName»; Case No. «SCtCaseNo»The Florida Bar File No. «BarFileNo»

Date: date of memo

The referee recently held a case management conference on this case and set the trial for trial date. I am requesting your input before I make a firm settlement offer or advise the referee what discipline the Bar is seeking. I am providing you with the information we now have. If we discover material information through discovery that should alter our position, I will promptly inform you. Please review this information and then note your position below.

1. Facts: facts of the case

2. Aggravation and Mitigation:

A. Aggravating Factors Include:insert aggravating factors

B. Mitigating Factors Include:insert mitigating factors

3. Florida Standards:

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insert Florida Standards

4. Case Law: insert case law

5. Bar Counsel's Comments and Recommendation: insert recommendations

6. Designed Reviewer’s Recommendation:

_____Concur with Bar Counsel _____Do not concur with Bar Counsel

7. Designated Reviewer’s Comments:

Glossary

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Board of Governors' Review

Cases Requiring Review (3-7.7(c) (1) & 3-7.12(b))The board of governors has the authority and responsibility to review all reports of referee not based on a consent judgment; all matters referred to the board by a designated reviewer on review of the actions of a grievance committee; all petitions for disciplinary revocation; and all cases involving requests for authority to act contrary to established board policy. In this respect it is bar counsel’s responsibility to prepare the agenda item and appropriate backup for submission to the director of lawyer regulation and inclusion in the disciplinary agenda.

Executive Committee Authority (3-3.2(c))The executive committee is a committee of the board of governors. This committee has the authority to act in place of the full board of governors when the board cannot meet time deadlines. All action of the executive committee on review of disciplinary matters is reported to the board of governors as a “notice of executive committee action” on the disciplinary agenda.

It is bar counsel’s responsibility to prepare the notice of executive committee action with appropriate backup for submission to the director of lawyer regulation and inclusion in the disciplinary agenda.

Agenda Item ProcessBar counsel prepares the agenda item, assembles the necessary backup documentation, and seeks the recommendation of the designated reviewer. Bar counsel will present the draft agenda item and backup to the chief branch discipline counsel for review and approval. Thereafter, the draft, as approved at the branch level, is sent to the director of lawyer regulation for staff counsel’s approval. Once approved the agenda item and backup, reflecting the recommendation of the designated reviewer, are utilized in the preparation of the disciplinary agenda by headquarters.

Disciplinary Review Committee Action & Report to Board The disciplinary review committee is a committee of the board assigned the task of reviewing the disciplinary agenda and making recommendations to the full board of governors. The agenda is assembled in the headquarters office and mailed, with the regular board agenda, to the individual members of the board. The disciplinary review committee meets the day before each board of governors meeting. The director of lawyer regulation and staff counsel attend the meetings of this committee and provide guidance and information concerning cases on the disciplinary agenda.

The director of lawyer regulation records committee action on cases under review for preparation of the grievance minutes.

After the committee takes action on cases a report is made to the board during the regular board of governors meeting.

Board Action on Review

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The full board of governors hears the report of the disciplinary review committee and votes on individual cases, for debate items, and on cases as a group, for roll call items.

The director of lawyer regulation will give written notice to the clerk of the supreme court, bar counsel and respondents concerning action taken by the board of governors.

Debate ItemsAny case on the disciplinary agenda is subject to debate. Debate item cases are those in which there is any disagreement concerning the recommended disposition. For example, if the designated reviewer disagrees with the action of a grievance committee the case must be debated individually. Also, if bar counsel or the designated reviewer recommends a different sanction from that recommended by the referee, the case must be debated individually. Any member of the disciplinary review committee may request discussion on any case.

The director of lawyer regulation or staff counsel will record the numerical vote on debate items.

Roll Call ItemsOpposite of debate items are the roll call items. These are disciplinary cases in which there is no disagreement as to the sanction to be imposed or disposition recommended. For example, a referee may recommend a 90 day suspension and bar counsel and the designated reviewer agree. If no one on the disciplinary review committee disagrees, the committee will consider those cases similarly situated in one vote.

If no member of the board of governors asks for a case to be removed from the roll call vote, the board of governors will also vote on all such cases in a single vote. Any member of the board of governors may remove an item from the roll call vote and cause it to be discussed individually as a debate item.

The director of lawyer regulation will record the board of governors’ action on the roll call list. The board of governors votes with a voice vote and individual votes are not tallied unless requested.

Notice of Board Action After the board of governors has taken action on the discipline agenda items, the director of lawyer regulation will provide written notice of the board’s action to the clerk of the Supreme Court of Florida, bar counsel, respondent, and other interested persons. Because of the need for prompt notice, the letters including this notice are prepared prior to the board of governors’ meeting and held for authorization after the board has taken action. It is the responsibility of the director of lawyer regulation to record appropriate data base entries to reflect board of governors’ action.

Minutes of Board & Executive Committee ActionThe director of lawyer regulation has the responsibility for assembling and distributing the agenda and recording action of the board of governors on review of the disciplinary agenda. The director of lawyer regulation drafts minutes of each board of governors meeting and circulates

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the draft minutes to staff counsel. After review, the approved minutes are held for distribution with the next board of governors’ meeting agenda.

Glossary

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Supreme Court Review/Appeals

Notice & Cross-Notice for Review (3-7.7(a) & (c))

Review in the supreme court may be initiated by either the bar or the respondent by the filing of a notice of intent to seek review of report of referee. The notice is required to state the portions of the report of referee on which review is requested. This document is generally a simple pleading indicating whether the findings of fact in general, findings of fact as to a specific point, findings of guilt, or recommendation of sanctions to be imposed are the subject matter of the requested review. A notice for review must be filed within 60 days of the date on which the referee serves the report in order to preserve review as a matter of right. The court may consider a late-file notice or cross-notice upon a showing of good cause.

After a party has filed a notice for review the opposing party may file a cross-notice for review within 20 days after service of the original petition.

Briefs (3-7.7(c) (3))

Applicable rules require briefs to be submitted in accordance with the requirements of the Florida Rules of Appellate Procedure. In addition, the court requires briefs to also be submitted in electronic format, Word, Times New Roman, 14 point type. Each brief must contain a certification as to type-style and virus scan.

The initial brief is due within 30 days of the filing of the notice for review.

An answer brief may be filed within 20 days after filing the initial brief.

A reply brief may be filed within 20 days after filing the answer brief.

In cases of cross-notices for review, the answer brief may address the issues in the cross-notice and the reply brief may fully respond to all issues in the answer brief.

Oral Argument (3-7.7(c) (4))

A request for argument may be filed at the time of filing party’s first brief. The court has discretion to deny requests for oral argument and may direct oral argument on its own motion. If oral argument is granted bar counsel should be in the lawyers’ lounge at the supreme court at 8:30 AM. Arrival at this time will allow for sufficient time to check-in with the deputy clerk concerning the allotment of oral argument time and for meeting any justices who may come to greet counsel.

Bar counsel shall take care to carefully listen to the questions presented by the court and respond fully to those questions.

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Orders & Opinions (3-7.7(c) (6)) After conclusion of the briefing, if the case is on review, and after oral argument, if held, the court will issue an order or opinion disposing of the disciplinary case. The court will mail copies of the order or opinion to the parties. Opinions and orders are also available on the supreme court’s web site. Bar counsel should check that site daily to determine if an order has been issued that is of interest. The website is www.flcourts.org.

It is the responsibility of the headquarters office to make appropriate data base entries concerning the holdings the court has announced in the court order or opinion.

Glossary

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Headquarters' Responsibility After Supreme Court Action

Notice to Respondent or Respondent’s CounselUpon entry of an order imposing a sanction, staff of the headquarters office will contact the respondent or respondent’s counsel concerning obligations created by the imposition of the sanction. Although this contact is not required under the rules, it is an effective vehicle to ensure compliance with the conditions required by the court.

Headquarters staff will record appropriate data base entries concerning the recommendations of the court, costs assessed, and the sanctions imposed.

Costs CollectionHeadquarters staff will record the costs in the appropriate data bases and after the costs become final, initiate collection efforts. If costs are not timely paid headquarters’ staff will record a copy of the judgment in the county where the respondent had a primary place of practice.

Costs not paid within 30 days after becoming final and when no agreement for a plan of payment has been approved are deemed delinquent by the rules. 1-7.3(a). All respondents who do not timely pay their costs become delinquent members and will not be eligible to practice law. 1-3.6

Bar staff has the authority to approve payment plans that will fully retire the costs within 12 calendar months. All other payment plans must be reviewed by the board of governors.

Notice to Clients (3-5.1(g))In cases in which the sanction imposed is a suspension or disbarment the respondent is required to give notice of such sanction together with a copy of the order of the court to all clients, opposing counsel and courts with matters pending at the time the order is served. In addition, the respondent is required to file an affidavit with the headquarters office listing the names and addresses of all clients, opposing counsel and courts so notified.

It is the responsibility of the headquarters’ staff to obtain compliance with this requirement. If a respondent fails to provide the required affidavit, the director of lawyer regulation shall review the matter and determine if a petition for contempt and order to show cause is appropriate. 3-7.11 (f).

Probation MonitoringIn cases in which probationary conditions are ordered by the court, headquarters’ staff will record such conditions in the appropriate data bases and send a letter to the respondent or respondent’s counsel outlining requirements of the probation and the fees relative to monitoring same. Thereafter headquarters’ staff will review reports submitted concerning probation compliance and take necessary action to secure compliance if none has been demonstrated.

Scheduling Admonishments & Public Reprimands

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Staff in the headquarters office is responsible for drafting public reprimands and admonishments and scheduling appearances before the board of governors for administration of those sanctions. Bar counsel is responsible for drafting reprimands and admonishments to be administered by local appearances.

When an admonishment or public reprimand becomes final the respondent will be contacted by headquarters. The purpose of the contact will be to advise the respondent that an appearance must be scheduled. The respondent will be given a choice of appearing at the next meeting of the board for administration of the sanction or the respondent may decline the next available board meeting location in favor of the location of the board meeting thereafter.

If a respondent declines to appear at the first available board a meeting location, headquarters staff will advise the respondent that bar policy dictates a mandatory appearance at the board meeting thereafter.

The director of lawyer regulation shall cause the admonishment or reprimand to be drafted and distributed to the president and bar counsel for review. The director of lawyer regulation shall take the disciplinary file and approved admonishment or reprimand to the board meeting.

Closing FilesDecisions to close files are subject to approval by the director of lawyer regulation.

Scheduling Diversion RequirementsIt is the responsibility of staff in the headquarters office to schedule respondents for completion of diversion requirements. Headquarters staff will communicate with the respondent to determine when the respondent is able to attend the diversion program, schedule the attendance, obtain faculty for the program, and administer the program entirely.

The director of lawyer regulation shall have the responsibility to review circumstances for a determination as to whether other complaints should be actively pursued.

Glossary

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CONSENT JUDGMENTS

Consent Judgments

An agreement between The Florida Bar and the respondent regarding the discipline to be imposed is called a conditional guilty plea for consent judgment (consent judgment for short). These pleas are governed by Rule 3-7.9. A consent judgment is a practical and effective way of concluding a case once probable cause is found. While the bars policy discourages reduction of an appropriate discipline in exchange for respondent’s cooperation, bar counsel should consider all relevant factors including: the likelihood of the bar prevailing at trial, case law, standards, respondent’s disciplinary history, client prejudice, and aggravating and mitigating circumstances.

Bar counsel have no authority to bind the bar in any plea agreements and should advise the respondent of this fact. 3-7.9(e). Two steps must always be taken before seeking board/designated reviewer approval:

OBTAIN APPROVAL OF THE CHIEF BRANCH DISCIPLINE COUNSEL (CBDC); and OBTAIN APPROVAL OF STAFF COUNSEL.

The memorandum form in this manual may be used in seeking the required approval and staff counsel has specifically requested that this form be consistently utilized when seeking headquarters approval VIA E-MAIL ONLY. The memorandum should be directed to the director of lawyer regulation and staff counsel, after approval by the CBDC.

This memorandum may also be sent to the designated reviewer when it is time for approval. To avoid being placed in a situation involving too little time to make a qualified recommendation, bar counsel should advise all respondents in writing that offers of consent judgments must be tendered well in advance of final hearings. Bar counsel should never delay the prosecution of the case in order to negotiate a consent judgment, but should continue to diligently prepare for trial which will ultimately assist in obtaining consent judgments.

It is important to address all pending cases in a consent judgment. The bar is reluctant to approve a consent judgment that leaves pending cases unaddressed.

A consent judgment can be reached either before or after a formal complaint is filed.

A consent judgment for disbarment is treated the same as all other consent judgments listing the pending TFB case numbers and a new file should not be opened. If the consent judgment for disbarment involves trust account misappropriations, the Rice Rule must be follwed.

The Rice Rule has been codified into the below Standing Board Policy:

15.65 Policy for Audits after Disbarment

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It is the policy of the bar that audits of trust, business, and personal accounts, as appropriate, should be performed when theft is an issue and the member has been disbarred, whether by consent or otherwise, without an audit. In such cases, the bar shall seek from the respondent, by agreement or court order, an audit of the appropriate monetary accounts of the respondent, an affidavit attesting to the current professional and personal financial status of the respondent, and the maintenance and notice to the bar of the current physical address of the respondent.

The purposes of this policy are so that the bar may identify the full extent of the respondent's trust obligations, identify sources of available funds to satisfy the respondent's trust obligations, and obtain information necessary to satisfy the public policy of reporting criminal conduct to appropriate agencies.

Glossary

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CONSENT JUDGMENTS

Approval Memorandum

M E M O R A N D U M

TO: John Anthony Boggs, Staff Counsel

FROM: , Bar Counsel

RE: The Florida Bar v. TFB File No.

This consent judgment has been reviewed and approved by Branch Staff Counsel prior to being forwarded to headquarters.

_____________________________CBDC

_____________________________Date

CHARGES

CONSENT JUDGMENT

PREVIOUS RECORD OF RESPONDENT

CASE LAW

STANDARDS

COMMENTS

RECOMMENDATION

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Glossary

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CONSENT JUDGMENTS

Prior to Filing a Complaint

Rule 3-7.9(a) governs consent judgments prior to the filing of a formal complaint. After the CBDC and staff counsel approve of a proposed consent judgment, the designated reviewer must be consulted. An agenda item is then prepared for the board to consider and vote on whether to accept or reject the consent judgment. Please note that the agenda item should be directed to the director of lawyer regulation, HQ office manager and staff counsel. If the board rejects a proposed consent judgment, a complaint must promptly be filed.

However, if the board approves the consent judgment, then the matter may be finalized without the filing of any formal complaint by directly filing the consent judgment with the Supreme Court of Florida along with the signatures of the parties and an affidavit of costs.

A sample of a pre-complaint conditional guilty plea for consent judgment is included in the appendix to this manual. Please note that paragraph 4 is summary of the allegations and is essential because no complaint is involved to describe of the allegations.

Glossary

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CONSENT JUDGMENTS

Prior to Filing a Complaint Checklist

Before Complaint Has Been FiledDate

______ 1. Prepare a memo to Staff Counsel and Director of Lawyer Regulation regarding a Conditional Guilty Plea.

______ 2. Prepare a Conditional Guilty Plea. Calculate the costs as the amount needs to be included in the Conditional Guilty Plea and prepare an Affidavit of Costs.

______ 3. Upon Chief Branch Discipline Counsel approval, E-mail the consent judgment memo to Staff Counsel and Director of Lawyer Regulation and copy CDC and ADC. Indicate in the E-mail that "Chief Branch Discipline Counsel has approved this consent judgment." Tickle the file for one (1) week to await Staff Counsels approval.

______ 4. Upon Staff Counsel's or Director of LRs approval, send a consent judgment memo to the DR. Tickle for two (2) weeks.

______ 5. Upon DR's approval, send the original consent judgment to the respondent/respondent's counsel for signature. Tickle for two (2) weeks.

(Data Transmittal: DR app'd/rejected CJ/Date)

______ 6. Prepare an Agenda Item for the Board of Governors review.

______ 7. Send the Agenda Item via E-mail to Staff Counsel and Director of Lawyer Regulation. Keep a copy of the Agenda Item and the original consent judgment in the file but DO NOT fasten it.

______ 8. Send a copy of the Agenda Item and consent judgment to the DR so he/she has the information prior to the board meeting.

______ 9. If the BOG approves the consent judgment, prepare a Petition for Approval of Conditional Guilty Plea for Consent Judgment.

_______ 10. Send the original consent judgment, affidavit of costs and Petition for Approval to the Clerk of the Supreme Court for filing.

Glossary

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CONSENT JUDGMENTS

After a Complaint is Filed

As in pre-complaint consent judgments, CBDC and staff counsel must approve the proposed consent judgment before it is presented to the designated reviewer for approval. No agenda item is needed. Bar counsel prepares a proposed ROR accepting the consent judgment and tenders same to the Referee along with an affidavit of costs. If the Referee approves the consent judgment, the Referee signs the proposed ROR and forwards the file to the Supreme Court.

Glossary

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CONSENT JUDGMENTS

After a Complaint is Filed Checklist

Checklist After a Complaint Has Been FiledDate

______ 1. Prepare the memo to Staff Counsel and Director of Lawyer Regulation regarding a Conditional Guilty Plea.

______ 2. Prepare a Conditional Guilty Plea, Stipulation for Entry of Consent Judgment and a Report of Referee Accepting Consent Judgment. Also calculate the costs as the amount needs to be included in the Conditional Guilty Plea and the Report of Referee. Prepare an Affidavit of Costs.

______ 3. Upon Chief Branch Discipline Counsel approval, E-mail the consent judgment memo to Staff Counsel and Director of Lawyer Regulation and copy CBDC and ADC. Indicate in the E-mail that "Chief Branch Discipline Counsel has approved this consent judgment." Tickle file for one (1) week to await Staff Counsel's approval. ** Keep copies of all E-mail responses in the file.

______ 4. Upon Staff Counsel's or Director of LRs approval, send a consent judgment memo to the DR. Tickle for two (2) weeks.

______ 5. Upon DR's approval, send the original consent judgment and the stipulation to the respondent/respondent's counsel for signature. Tickle for two (2) weeks. (Data Transmittal: DR app'd/rejected CJ/Date)

______ 7. After receipt of the consent judgment and stipulation executed by the respondent, Bar Counsel should sign stipulation. (Data Transmittal: R signed CJ/Date)

______ 8. Send the original Consent Judgment, Stipulation, Affidavit of Costs and Report of Referee to the referee and copy respondent/respondent's counsel with same. NOTE : Be sure to enclose the appropriate number of copies of the Report of Referee and self-addressed, stamped envelopes. (Data Transmittal: Prop'd ROR to Referee/Date)

______ 9. When signed ROR is returned, provide a copy to Melanie Gay and wait for FSC to enter an order.

*These are used if more than one discipline case is being included in the consent judgment.Transmittal letter to respondent attaching Joint Motion to Consolidate.

Joint Motion to Consolidate.

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Glossary

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CONSENT JUDGMENTS

Certification Issues

Whenever probable cause is found against a member who is Board Certified, bar counsel must inform the Department Head of BLSE.Each consent judgment entered into by a member who is Board Certified must state:

Respondent is board certified and has been advised that any disciplinary sanction imposed may

adversely affect his or her board certification. The Board of Legal Specialization and Education has

jurisdiction over the revocation of board certification.

Glossary

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CONSENT JUDGMENTS

Example Consent Judgment Memorandum

CONFIDENTIAL MEMORANDUM

TO: XX, Director of Lawyer Regulation

FROM: XX, Bar Counsel

CC: XX, Chief Branch Discipline Counsel

RE: Xx, Respondent TFB Case Nos.

This consent judgment has been reviewed and approved by the Chief Branch Discipline Counsel prior to being forwarded to headquarters.

______________________________XXChief Branch Discipline Counsel______________________________Dated______________________________

CHARGES

Case No. 97-31,330(07A): The respondent is charged with substantially failing to maintain the minimum required trust accounting records and procedures. The grievance committee found probable cause in this matter on January 9, 1998.

Case No. 97-31,586(07A): This case concerned allegations of criminal behavior by the respondent, namely, use of marijuana. The respondent entered into a deferred prosecution agreement on January 5, 1996, which he completed on July 18, 1996, pertaining to possession of cannabis and drug paraphernalia which was handled under misdemeanor case number 95-26834-MMAES. The grievance committee found probable cause in this matter on January 9, 1998.

Case No. 97-31,711(07A): This case concerns the improper disbursement of $5,000 by the respondent or his office staff. The respondent also apparently filed an action in civil court to reform a deed without the authority of the party plaintiff, Clay Beazley, the purchaser of the underlying real estate. After protest by Mr. Beazley, the respondent filed a Motion to Dismiss his own complaint, an improper procedure under the Florida Rules of Civil Procedure. The grievance committee found probable cause in this matter on January 9, 1998.

Case No. 97-31,729(07A): The respondent filed numerous frivolous grievances against other

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attorneys and it appeared that the respondent might suffer from a psychological problem. There was also concern with the respondents use of a prescription sleep aid, benzodiazepene. The respondent was evaluated by a Dr. Brightwell, but he has not been independently evaluated by Florida Lawyers Assistance, Inc. Kenneth W. Thompson, M.D., a specialist in addiction medicine in Ocala, strongly recommended that the respondent be referred to an addiction specialist for evaluation. The grievance committee found probable cause in this matter on February 20, 1998.

CONSENT JUDGMENT

The grievance committee believes that the respondent suffers from psychiatric, psychological and/or addiction problems which caused the conduct in the above referenced cases. Through discussions with former bar counsel Jim Keeter, the committee determined that a global resolution of these matter was appropriate. The committee made several specific recommendations which were presented to the respondents counsel, Dan Wallace, and he has drafted a Conditional Guilty Plea for Consent Judgment based on those recommendations. The committees specific recommendations are as follows:

1. The respondent should be publicly reprimanded by the Board of Governors of The Florida Bar, and should pay the bars costs in prosecuting these matters;

2. The respondent must undergo a psychiatric, psychological and addiction evaluation by a psychiatrist who works with and is recommended by Florida Lawyers Assistance, Inc.; if a psychiatric, psychological or addiction problem is noted, the respondent must enter into a contract with Florida Lawyers Assistance, Inc. concurrently with his term of disciplinary probation. The purpose of a Florida Lawyers Assistance, Inc. evaluation is to determine whether the respondent has the emotional and psychological capacity to continue in the practice of law;

3. The respondent should be placed on a three (3) year period of probation with periodic trust account monitoring by an auditor of The Florida Bar. He should be required to undergo a LOMAS review during the first six (6) months of probation with a follow-up review to be conducted within six (6) months after the first review;

4. The respondent should retain a CPA firm during probation which is acceptable to The Florida Bar to maintain his trust accounts in compliance with the Rules Regulating The Florida Bar;

5. The respondent should attend a bar-sponsored CLE-approved trust accounting workshop; and

6. The respondents work product should be monitored by a board certified wills, estates and trusts attorney and by a board certified real estate attorney during the first six (6) months of probation with monthly reports to be provided by such attorneys, and the respondent should pay the costs of this monitoring.

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It should be noted that the grievance committee reviewed the proposed consent judgment prepared by Mr. Wallace and recommended that blank copies of contracts from Florida Lawyers Assistance, Inc. be attached as exhibits and incorporated therein. Copies of the blank contracts as obtained from Florida Lawyers Assistance, Inc. are attached.

In addition to the recommendations made by the grievance committee, bar counsel recommends the following:

1. The three (3) year period of probation shall run concurrently with any contract the respondent enters into with Florida Lawyers Assistance, Inc. and will be automatically extended to run concurrently with any extension of the respondents contract with Florida Lawyers Assistance, Inc. During any period of probation, the respondent shall remain completely drug and alcohol free, other than drugs or medications prescribed by a duly licensed physician in the course of medical treatment.

2. The respondent would agree that any of the following events shall constitute a violation of probation:

a. A finding by a grievance committee of probable cause against the respondent;b. The respondents default in performance of any terms and conditions of any

contract with Florida Lawyers Assistance, Inc.;c. The respondents default in performance of any terms and conditions of the

Conditional Guilty Plea for Consent Judgment.

3. Default, as defined for purposes of the plea agreement shall include, but not be limited to, the respondents failure to refrain from the use of all mood altering substances, including alcohol; failure to timely pay any costs associated with any Florida Lawyers Assistance, Inc. contract or with the plea agreement; or failure to abide by any of the other obligations imposed on the respondent under any Florida Lawyers Assistance, Inc. contract or the plea agreement. Further, default, shall be unilaterally determined by either bar counsel employed by The Florida Bar or by any Florida Lawyers Assistance, Inc. representative assigned to monitor the respondents compliance with any Florida Lawyers Assistance, Inc. contract.

4. In the event of the respondents violation of probation, the respondent would agree to his immediate placement on the inactive list, commencing upon the bars filing of a Notice of Violation of Probation or other pertinent notice with The Supreme Court of Florida.

5. The respondent shall pay a monthly probation monitoring fee of $50.00 to The Florida Bar commencing with the month in which The Supreme Court of Florida accepts the plea agreement. The respondent shall pay all costs associated with any Florida Lawyers Assistance, Inc. contract and all costs associated with his compliance with the terms and conditions of the plea agreement.

6. Because the respondent is Board Certified in Real Estate Law, in accordance with the plea agreement, the respondent would agree to having his Board Certification withdrawn.

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PREVIOUS RECORD OF RESPONDENT

Case No. 85-11,289(07A) - Private reprimand for neglect.

Case No. 96-31,473(07A) - Grievance committee level admonishment for excessive/improper fees.

PENDING CASES AGAINST RESPONDENT

None.

CASE LAW

The Florida Bar v. Dubbeld, 594 So.2d 735 (Fla. 1992). Public reprimand for a DUI conviction and leaving an obscene or offensive message on the answering machine of a woman the attorney thought had told his wife he was having an extramarital affair. The attorney had two prior admonishments involving alcohol incidents. The attorneys second admonishment was conditioned upon his continuing with therapy until the therapist determined it was no longer necessary. The attorney did not comply with that condition. The court found that most, if not all, of the attorneys misconduct resulted from his abuse of alcohol.

The Florida Bar v. Borja, 554 So.2d 514 (Fla. 1990). Public reprimand and a two (2) year period of probation. The attorney issued a $10,000 trust account check to pay an estates taxes when there were no funds in the account for that purpose. A Florida Bar audit and a subsequent follow-up audit found that the attorney was not in substantial compliance with trust accounting procedures. All parties received the amounts due them and no funds were diverted to the attorneys own use. The attorney had delegated the responsibility for overseeing his trust account to his secretary.

The Florida Bar v. Johnson, 526 So.2d 53 (Fla. 1988). Public reprimand and a four (4) year period of probation for failing to maintain the minimum required trust accounting procedures with respect to the administration of an estate. The only records maintained by the attorney regarding the estate was a checkbook and certain handwritten notations regarding disbursements appearing on the jacket of the file. The Court found that the failure to adequately account for a clients funds is a serious ethical breach even if there is no financial harm to the client. As part of his probation, the attorney was required to submit quarterly reports from a certified public accountant reflecting that his trust account was being maintained in compliance with the rules.

The Florida Bar v. Levine, 498 So.2d 941 (Fla. 1986). Conditional guilty plea for consent judgment for a public reprimand by the attorneys appearance before the Board of Governors of The Florida Bar for a misdemeanor conviction involving the personal use of cocaine.

STANDARDS

4.1 Failure to Preserve the Clients Property

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4.13 Public reprimand is appropriate when a lawyer is negligent in dealing with client property and causes little or no injury or potential injury to a client.

5.1 Failure to Maintain Personal Integrity

5.14 Admonishment is appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyers fitness to practice law.

9.2 Aggravating Factors

9.22(a) prior disciplinary offenses; (c) a pattern of misconduct; and (i) substantial experience in the practice of law.

9.3 Mitigating Factors

9.32(c) personal or emotional problems; (e) full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings; and (h) physical or mental disability or impairment.

RECOMMENDATION

Approval of a Conditional Guilty Plea for Consent Judgment for a public reprimand, three (3) years probation and the conditions recommended by the grievance committee and bar counsel described above.

Glossary

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CONSENT JUDGMENTS

Example Consent Judgment

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Complainant, Case N

97-31,330(07A); 97-31,586 (07A); 97-31,711 (07A)v. & 97-31,729 (07A)

CHARLES MYRON ALLEN, JR.,

Respondent.___________________________/

CONDITIONAL GUILTY PLEA FOR CONSENT JUDGMENT

COMES NOW, the undersigned respondent, CHARLES MYRON ALLEN, JR., and files this Conditional Guilty

Plea. This plea is filed pursuant to R. Regulating Fla. Bar 3-7.9(a), and tendered in exchange for the disposition

contained herein.

1. The respondent, CHARLES MYRON ALLEN, JR., is and at all times hereinafter mentioned, was a member

of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. The respondent is acting freely and voluntarily in this matter and is represented by counsel of his

choice.

3. The respondent is currently the subject of disciplinary proceedings which have been assigned the

following file numbers:

97-31,330 (07A), 97-31,586 (07A), 97-31,711 (07A) and 97-31,729 (07A).

4. The following constitutes a statement of the charges in the pending disciplinary cases which the

respondent admits are true and accurate:

a. 97-31,330 (07A): The respondent is charged with substantially failing to maintain the minimum

required trust accounting records and procedures. Due to the loss of a large main client, the respondent filed a

reorganization bankruptcy which prompted a bar trust account audit. The respondent relocated to a smaller office

and was unable to provide necessary trust account records for the bars audit as much of the records were lost or

destroyed. There have been no allegations of trust account misappropriation but the respondent has not been able

to provide reconstructed records that are in compliance with the Rules Regulating Trust Accounts. Even though the

bar allowed extensions of time for the reconstruction process and the respondent expended considerable effort and

expense at reconstruction, the trust account records have been, and remain, non-compliant.

b. 97-31,586 (07A): The respondent entered into a Deferred Prosecution Agreement on January 5,

1996, which he completed on July 18, 1996, pertaining to the possession of cannabis and drug paraphernalia which

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was handled under misdemeanor case number 95-2634MNAES.

c. 97-31,711 (07A): The respondent agreed to hold $4,847 from the closing of a real estate

transaction in his trust account pending the acquisition of documents properly describing a drainage easement. The

respondent did not personally sign the check that released the monies from his trust account, but an authorized

non-lawyer member of his staff did. The money was released to the parties entitled to it, but the respondent did

not acquire the corrected drainage easement documents.

d. 97-31,729 (07A): The respondent filed numerous frivolous grievances against other attorneys

and it appeared that the respondent might suffer from a psychological problem. There was also concern with the

respondents use of a prescription sleep aid, benzodiazepene. The respondent was evaluated by a Dr. Brightwell, but

he has not been independently evaluated by Florida Lawyers Assistance, Inc. Kenneth W. Thompson, M.D., a

specialist in addiction medicine in Ocala, strongly recommended that the respondent be referred to an addiction

specialist for evaluation.

5. The respondent admits that by reason of the foregoing he has violated the following Rules Regulating

The Florida Bar:

a. 97-31,330 (07A): 5-1.1 Trust Accounts; and 5-1.2 Trust Accounting Records and Procedures.

b. 97-31,586 (07A): 3-4.3 Misconduct and Minor Misconduct; 3-4.4 Criminal Misconduct; and

4-8.4(b)(c)(d) Misconduct.

c. 97-31,711 (07A): 4-1.15 Safekeeping Property; 5-1.1 Trust Accounts; and 5-1.2 Trust

Accounting Records and Procedures.

d. 97-31,729 (07A): 3-4.3 Misconduct; 3-7.13(a) Incapacity; 4-3.1 Meritorious Claims and

Contentions; 4-8.4(c)(d) Misconduct.

6. The respondent consents to the following discipline:

a. The respondent shall be publicly reprimanded by the Board of Governors of The Florida Bar, and

shall pay the bars costs in prosecuting these matters.

b. The respondent must undergo a psychiatric, psychological and addiction evaluation by a

psychiatrist who works with and is recommended by Florida Lawyers Assistance, Inc. If a psychiatric, psychological

or addition problem is noted, the respondent must enter into a contract with Florida Lawyers Assistance, Inc.

concurrently with his term of disciplinary probation and consistent with the recommendations of his primary

treating physician, Dr. Brightwell. The purpose of a Florida Lawyers Assistance, Inc. evaluation is to determine

whether the respondent has the emotional and psychological capacity to continue in the practice of law. Examples

of the contracts the respondent will enter into with Florida Lawyers Assistance, Inc. are attached hereto as Exhibit

A.

c. Within thirty (30) days after this consent judgment is accepted by the Supreme Court of Florida,

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the respondent shall undergo the psychiatric, psychological and addiction evaluation. The respondent hereby

consents to open communication between all therapists and expressly waives any and all applicable

patient/therapist privileges for the purpose of providing the bar with evidence of his compliance.

d. The respondent shall be placed on a three (3) year period of probation with periodic trust account

monitoring by an auditor of The Florida Bar. He shall be required to undergo a Law Office Management Advisory

Service (LOMAS) review during the first six (6) months of probation with a follow-up review to be conducted within

six (6) months after the first review.

e. The respondent shall retain a CPA firm (or other accounting firm) during probation which is

acceptable to The Florida Bar to maintain his trust accounts in compliance with the Rules Regulating The Florida

Bar.

f. The respondent shall attend a bar-sponsored CLE-approved trust accounting workshop.

g. The respondents work product shall be monitored by a board certified wills, estates and trusts

attorney (or other wills, estates and trusts attorney approved by the bar) and by a board certified real estate

attorney (or other real estate attorney approved by the bar) during the first six (6) months of probation with

monthly reports to be provided by such attorneys. The respondent shall pay the costs of this monitoring.

h. The three (3) year period of probation shall run concurrently with any contract the respondent

enters into with Florida Lawyers Assistance, Inc. and will be automatically extended to run concurrently with any

extension of the respondents contract with Florida Lawyers Assistance, Inc. During any period of probation, the

respondent shall remain completely drug and alcohol free, other than drugs or medications prescribed by a duly

licensed physician in the course of medical treatment.

i. The respondent agrees that any of the following events shall constitute a violation of probation:

1) A finding by a grievance committee of probable cause against the respondent;

2) The respondents default in performance of any terms and conditions of any contract with Florida

Lawyers Assistance, Inc.;

3) The respondents default in performance of any terms and conditions of the Conditional Guilty Plea

for Consent Judgment.

j. Default, as defined for purposes of the plea agreement shall include, but not be limited to, the

respondents failure to refrain from the use of all mood altering substances, including alcohol; failure to timely pay

any costs associated with any Florida Lawyers Assistance, Inc. contract or with the plea agreement; or failure to

abide by any of the other obligations imposed on the respondent under any Florida Lawyers Assistance, Inc.

contract or the plea agreement. Further, default, shall be unilaterally determined by either bar counsel employed by

The Florida Bar or by any Florida Lawyers Assistance, Inc. representative assigned to monitor the respondents

compliance with any Florida Lawyers Assistance, Inc. contract.

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k. In the event of the respondents violation of probation, the respondent agrees to his immediate

placement on the inactive list, commencing upon the bars filing of a Notice of Violation of Probation or other

pertinent notice with the Supreme Court of Florida.

l. The respondent shall pay a monthly probation monitoring fee of $50.00 to The Florida Bar

commencing with the month in which the Supreme Court of Florida accepts the plea agreement. The respondent

shall pay all costs associated with any Florida Lawyers Assistance, Inc. contract and all costs associated with his

compliance with the terms and conditions of the plea agreement.

m. Because the respondent is Board Certified in Real Estate Law, in accordance with the plea

agreement, the respondent agrees to having his Board Certification withdrawn.

7. If this plea is accepted, then the respondent agrees to pay all costs associated with this case pursuant

to R. Regulating Fla. Bar 3-7.6(o) in the amount of $1,289.81. These costs are due in full upon acceptance of the

plea.

8. Respondent further acknowledges his obligation to pay the costs of this proceeding and that payment is

evidence of strict compliance with the conditions of any disciplinary order or agreement, and is also evidence of

good faith and fiscal responsibility. Respondent understands that failure to pay the costs of this proceeding will

reflect adversely on any reinstatement proceedings or any other bar disciplinary matter in which the respondent is

involved.

9. Should this Conditional Guilty Plea for Consent Judgment not be approved by the Board of Governors of

The Florida Bar and the Supreme Court of Florida, it and all the statements herein are void and of no effect

whatsoever.

Dated this _______ day of _____________________, 1998.

_________________________________CHARLES MYRON ALLEN, JR. RespondentATTORNEY NO. 171685

Dated this ______ day of ________________________, 1998.

_________________________________DANIEL S. WALLACE

Counsel for RespondentATTORNEY NO. 203114

Dated this _______ day of _______________________, 1998.

_________________________________JAN WICHROWSKIBar CounselATTORNEY NO. 381586

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IN THE SUPREME COURT OF FLORIDA(Before a Referee)

THE FLORIDA BAR,

Complainant, Case No. 93,735TFB No. 97-31,330(07A), 97-31,586(07A)

97-31,711(07A) 97-31,711(07A) 97-31,729(07A)

v.

CHARLES MYRON ALLEN, JR.

Respondent. /

AFFIDAVIT OF COSTS

STATE OF FLORIDA)COUNTY OF ORANGE)

BEFORE ME, personally appeared, Jan K. Wichrowski, who, first being duly sworn and under oath states

the following:

Below is an itemized list of the expenses incurred in the above styled case.

A. Grievance Committee Level Costs:1. Bar Counsel Travel Costs $ 52.40

B. Administrative Costs $ 750.00

C. Miscellaneous Costs:1. Investigator Costs $ 85.122. Investigator Time $ 337.503. Audit Costs $ 64.79

TOTAL ITEMIZED COSTS: $1,289.81

_______________________Jan K. WichrowskiBar CounselThe Florida Bar1200 Edgewater DriveOrlando, FL 32804-6314(407) 425-5425ATTORNEY NO.381586

Sworn to and subscribed beforeme this 26th day of August 1998.

_____________________________________(Signature of Notary Public - State of Florida)

________________________________________________________________(Print, Type, or Stamp Commission Name of Notary Public)

COMMISSION NO. ____________ EXPIRATION DATE: _________

Personally Known ___________

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing Affidavit of Costs was furnished by regular mail to Sid J. White,Clerk of Supreme Court, at State of Florida, 500 South Duval Street, Tallahassee, FL 32399-1927; a copy has been furnished by First Class mail to counsel for respondent, Daniel S. Wallace at 431 N Grandview Avenue, Suite A, Daytona Beach, FL 32118-3928; a copy has been furnished by First Class mail to Charles Myron Allen, Jr., respondent at 1454 Ocean Shore Boulevard, Ormond Beach, FL 32176-3613; and a copy has been furnished by First Class mail to Staff Counsel, The Florida Bar, 650 Apalachee Parkway, Tallahassee, FL 32399-2300, this 26th day of August, 1998.

____________________________Jan K. WichrowskiBar Counsel


THE FLORIDA BAR,

Complainant, Case No. 91,902 [TFB Nos. 97-30,715(09B)- Lynn

v. 97-30,992(09B)- Cosme97-31,405(09B)- Hanse

DAVID SCOTT CLICKEN 98-30,483(09B)- Cairns98-31,239(09B)] - Harris

Respondent.____________________________/


COMES NOW, the undersigned respondent, David Scott Glicken, and files this Conditional Guilty Plea. This

plea is filed pursuant to R. Regulating Fla. Bar 3-7.9(b), and tendered in exchange for a ninety day suspension,

with automatic reinstatement, followed by a two year period of probation conditioned on the respondent not

engaging in the practice of personal injury law, undergoing an office procedures and record-keeping analysis by and

under the direction of the Law Office Management Assistance Service of The Florida Bar (hereinafter referred to as

LOMAS) on a yearly basis, completing 30 hours of Continuing Legal Education courses, and making restitution as

outlined below. The respondent states as follows:

1. The respondent is acting freely and voluntarily in this matter.

2. This plea is based upon the following factual scenarios:

A. TFB Case No. 97-30,715(09B) - In a personal injury case, the respondent failed to maintain adequate

communication with his client.

B. TFB Case No. 97-30,992(09B) - In a civil matter concerning a client's corporation, the respondent

failed to maintain adequate communication with the client.

C. TFB Case No. 97-31,405(09B) - In a visitation and paternity case, the respondent failed to

maintain adequate communication with the client.

D. 98-30,483(09B) - In a personal injury claim resulting from a riot at a concert, the respondent failed to

maintain adequate communication with the client.

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E. 98-31,239(09B) - In a personal injury case, the respondent failed to maintain adequate communication

with his client.

3. The respondent admits that by reason of the foregoing he has violated the following Rules Regulating

The Florida Bar: 4-1.4

Communication, (a) informing client of status of representation, (b) duty to explain matters to client.

4. As discipline the respondent consents to the following: a ninety day suspension from the practice of law

and payment of the bars costs followed by a two year period of probation with the following conditions:

A. The respondent shall not practice in the area of personal injury law.

B. Respondent will undergo an office procedures and record-keeping analysis by and under the direction

of the Law Office Management Assistance Service (hereinafter referred to as LOMAS) of The Florida Bar on an

annual basis. Respondent shall cooperate with LOMAS in the conduct thereof. Respondent shall fully comply with

and implement, at respondents sole cost and expense, all recommendations made by LOMAS, which

recommendations shall be in accordance with the Office Procedures and Record Keeping Guidelines of LOMAS.

C. The LOMAS analysis shall consist of, at a minimum, an initial review within 90 days of the court order

accepting this plea and a final review prior to termination of the probation, confirming compliance with, and

implementation of, the recommendations of LOMAS. LOMAS may require such additional interviews as it may, in its

sole discretion, deem necessary or advisable. Respondent shall pay all fees and expenses of LOMAS incurred or

required in connection with the conduct of its analysis. LOMAS shall provide the Lawyer Regulation Department of

The Florida Bar with status reports as to ordered analysis.

D. The respondent shall take and complete 30 hours of Continuing Legal Education courses in the area of

family law.

E. The respondent shall make restitution to Rolando Cosme in the amount of $800.00, and to Marvin C.

Hansen, Jr., in the amount of $400.00. The respondent shall provide to the bars headquarters office in Tallahassee

proof of restitution contemporaneous with the payment of the restitution within thirty (30) days of the approval of

this consent judgment by the Supreme Court of Florida.

5. If this plea is accepted, then the respondent agrees to pay all costs associated with this case pursuant

to R. Regulating Fla. Bar 3-7.6(o) currently totaling $1180.50. These costs are due in full upon acceptance of the

plea.

6. Respondent further acknowledges his obligation to pay the costs of this proceeding and that payment is

evidence of strict compliance with the conditions of any disciplinary order or agreement, and is also evidence of

good faith and fiscal responsibility. Respondent understands that failure to pay the costs of this proceeding will

reflect adversely on any reinstatement proceedings or any other bar disciplinary matter in which the respondent is

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involved.

7. If this plea is approved, the respondent shall comply with the requirements of rule 3-5.1(g) of Rules

Regulating The Florida Bar by notifying all of his current clients of his suspension in writing and with an attached

copy of this courts order within 30 days of the issuance of the order accepting this plea. The respondent shall

provide his sworn affidavit to Staff Counsel of The Florida Bar listing the names and addresses of all clients so

informed within 60 days of the issuance of this courts order accepting this plea.

8. If this Conditional Guilty Plea for Consent Judgment is not finally approved by the referee and the

Supreme court of Florida, then it shall be of no effect and may not be used against the respondent in any way.

Dated this _______ day of April, 1998.

__________________________________David Scott GlickenRespondentATTORNEY NO. 350621

Dated this _______ day of April, 1998.

___________________________________Jan K. WichrowskiBar CounselATTORNEY NO. 381586


THE FLORIDA BAR,

Complainant, Case No. 91,902[TFB Case Nos. 97-30,715(09B)97-30,992(09B), 97-31,405(09B)

v. 98-30,483(09B) and 98-31,239(09B)

DAVID SCOTT GLICKEN,

Respondent.__________________________________/

REPORT OF REFEREE ACCEPTING CONSENT JUDGMENT

I. Summary of Proceedings: The undersigned was appointed as referee to conduct disciplinary proceedings herein according to the Rules Regulating The Florida Bar. The Pleadings, Notices, Motions, Orders, Transcripts and Exhibits, all of which are forwarded to The Supreme Court of Florida with this report, constitute the record in this case.

The following attorneys appeared as counsel for the parties:

For The Florida Bar - Jan Wichrowski

For The Respondent - Carlos E. Torres

II. Findings of Fact as to Each Item of Misconduct of which the Respondent Is Charged: After considering all the pleadings and evidence before me, pertinent portions of which are commented on below, I find pursuant to the Conditional Guilty Plea for Consent Judgment that the facts of the Consent Judgment are admitted. The Conditional Guilty Plea for Consent Judgment and the Complaint are attached hereto and incorporated herein.

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III. Recommendations as to Whether or Not the Respondent Should Be Found Guilty: As to each count of the complaint I make the following recommendations as to guilt or innocence:Pursuant to the Conditional Guilty Plea for Consent Judgment, I find the respondent guilty as admitted in the Conditional Guilty Plea for Consent Judgment.

IV. Recommendation as to Disciplinary Measures to Be Applied:

Pursuant to the Conditional Guilty Plea for Consent Judgment, I make the following recommendations as to the disciplinary measures to be applied:

A. Ninety day suspension, with automatic reinstatement, followed by a two year period of probation conditioned on the following:

1. The respondent shall not practice in this area of personal injury law

2. Respondent will undergo an office procedures and record-keeping analysis by and under the direction of the Law Office Management Assistance Service (hereinafter referred to as LOMAS) of The Florida Bar on an annual basis. Respondent shall cooperate with LOMAS in the conduct thereof. Respondent shall fully comply with and implement, at respondents sole cost and expense, all recommendations made by LOMAS, which recommendations shall be in accordance with the Office Procedures and Record Keeping Guidelines of LOMAS.

3. The LOMAS analysis shall consist of, at a minimum, an initial review within 90 days of the court order accepting this plea and a final review prior to termination of the probation, confirming compliance with, and implementation of, the recommendations of LOMAS. LOMAS may require such additional interviews as it may, in its sole discretion, deem necessary or advisable. Respondent shall pay all fees and expenses of LOMAS incurred or required in connection with the conduct of its analysis. LOMAS shall provide the Lawyer Regulation Department of The Florida Bar with status reports as to ordered analysis.

4. The respondent shall take and complete 30 hours of Continuing Legal Education courses.

5. The respondent shall make restitution to Rolando Cosme in the amount of $1,609.00, to Marvin C. Hansen, Jr., in the amount of $800.00, and to Angela Barrett in the amount of $992.00 and return to her the computer equipment held by him as collateral for the fee. The respondent shall contact Ms. Barrett during normal business hours and arrange for the return of her equipment either to her, or to her designated representative, during normal business hours. The equipment shall be returned in the same condition in which it was received by the respondent or the respondent shall, at his sole expense, have the equipment repaired by a qualified computer repair technician. Restitution and return of the computer equipment shall be made within 60 days of the entry of the order of the Supreme Court of Florida approving this plea. In the event the respondent either no longer has the computer equipment in his possession or control or the equipment has suffered irreparable damage, the respondent shall pay Ms. Barrett the fair market value of the equipment with payment to be made, in full, within the same time period set forth above for the return of said equipment. The respondent shall provide to the bars headquarters office in Tallahassee proof of restitution contemporaneous with the payment of the restitution.

B. Payment of costs which currently total $1165.50.

V. Personal History and Past Disciplinary Record: After the finding of guilty and prior to recommending discipline to be recommended pursuant to R. Regulating Fla. Bar 3-7.6(k)(1), I considered the following personal history and prior disciplinary record of the respondent, to wit:

Age: 40 Date admitted to bar: October 29, 1982Prior disciplinary convictions and disciplinary measures imposed therein:

1. The Florida Bar v. Glicken, TFB Case No. 89-30,063(09B) - Private reprimand for failing to provide competent representation and inadequate communication. The respondent undertook the representation of clients in a foreign adoption when he had no prior experience handling such a case.

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2. The Florida Bar v. Glicken, 682 So. 2d 1101 (Florida 1997) - Public reprimand and two years probation, which ends on September 26, 1998, pursuant to a conditional guilty plea for consent judgment. The probation requires the respondent undergo an Office Procedures and Record Keeping Analysis by and under LOMAS consisting of at least an initial review and final review prior to the termination of the probation period confirming compliance and implementation of LOMAS recommendations, quarterly reports regarding the status of client files, and payment of a monthly monitoring fee of $50.00. The respondent failed to adequately communicate with clients and failed to respond to bar grievances.

VI. Statement of costs and manner in which costs should be taxed: I find the following costs were reasonably incurred by The Florida Bar.

A. Aministrative Costs $750.00

B. Miscellaneous Costs1. Investigator Expenses $391.502. Copy Costs $ 24.00

TOTAL ITEMIZED COSTS: $1165.50

It is apparent that other costs have or may be incurred. It is recommended that all such costs and expenses together with the foregoing itemized costs be charged to the respondent, and that interest at the statutory rate shall accrue and be payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar.

Dated this _____ day of _______________________, 1998.

______________________________Burton C. Conner, Referee

Original to Supreme Court with Referee's original file.

Copies of this Report of Referee only to:

Jan Wichrowski, Bar Counsel, 880 North Orange Avenue, Suite 200, Orlando, Florida, 32801

Carlos E. Torres, Counsel for Respondent, 22 West Lake Beauty Drive, Suite 304B, Orlando, Florida, 32806

Mr. John Anthony Boggs, Staff Counsel, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida, 32399-2300


THE FLORIDA BAR,

Complainant, Case No. 91,902[TFB Case Nos. 97-30,715(09B);

97-30,992(09B); & 97-31,405(09B)]v. Case No. 98-31,232(09B)DAVID SCOTT GLICKEN, Case No. 98-31,239(09B)

Respondent._________________________________/

STIPULATION FOR ENTRY OF CONSENT JUDGMENT

The Florida Bar and the respondent, David Scott Glicken, hereby stipulate to the entry of a Consent Judgment and the Report of Referee in the above referenced case based upon the Conditional Guilty Plea and Consent Judgment entered into by the parties.

The parties further stipulate to the entry of the Consent Judgment and the Report of Referee and the imposition of the referenced discipline without further notice of hearing.

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_________________________ ______________________________Jan Wichrowski David Scott GlickenBar Counsel Respondent Carlos E. TorresCounsel for Respondent


I HEREBY CERTIFY that the original of the foregoing Stipulation for Entry of Consent Judgment has been furnished by regular U.S. mail to The Honorable Burton Conner, 223 Courthouse Addition, 218 South 2d Street, F. Pierce, Florida, 34950; a copy of the foregoing has been furnished by regular U.S. mail to Carlos E. Torres, Counsel for respondent, 22 West Lake Beauty Drive, Suite 304B, Orlando, Florida, 32806; and a copy of the foregoing has been furnished by regular U.S. mail to John Anthony Boggs, Staff Counsel, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida, 32399-2300, this _____ day of ________________, 1998.

______________________________Jan Wichrowski Bar Counsel

Glossary

- 114 -

PROBATION

Probation

Probation may be imposed as a stand alone disciplinary sanction or as part of any other sanction authorized by the relevant rules. 3-5.1(c).

(c) Probation. The respondent may be placed on probation for a stated period of time of not less than 6 months nor more than 3 years or for an indefinite period determined by conditions stated in the order. The judgment shall state the conditions of the probation, which may include but are not limited to the following:

(1) completion of a practice and professionalism enhancement program as provided elsewhere in these rules;

(2) supervision of all or part of the respondent's work by a member of The Florida Bar;

(3) the making of reports to a designated agency; (4) the satisfactory completion of a course of study or a paper on legal

ethics approved by the Supreme Court of Florida;(5) such supervision over fees and trust accounts as the court may direct;

or(6) 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 also reimburse the bar for the costs of supervision. Failure to observe the conditions of the probation or a finding of probable cause as to conduct of the respondent committed during the period of probation shall terminate the probation. In such event, even though such finding of probable cause shall be made after the expiration of the period of probation, the judgment shall be reconsidered and an appropriate judgment shall be entered. On termination of probation for failure to observe the conditions of probation or on a finding of probable cause for misconduct committed during the period of probation, the attorney may be punished for contempt or suspended from the practice of law on petition by The Florida Bar, and any such suspension shall continue until the respondent may be reinstated to the practice of law as provided elsewhere in these rules.

In order for probation to have its maximum intended effect it must be certain as to terms and specific as the time for compliance. Probation that is stated in terms of a requirement for reinstatement may be illusory in that the respondent will have no obligation to comply unless the respondent is intent on seeking reinstatement to the practice of law. For this reason, it is the policy of this department that probationary conditions shall be stated in terms that are specific as to the amount and type of restitution and definite as to a time for compliance.

PROBATION MAY BE REPORTING OR NON REPORTING.

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1. Reporting probation requires a finite length of time, submission of periodic reports, and a monitoring fee for each reporting period.

For example, respondent receives a discipline that includes submission of CPA reports, or FLA, or psych reports.

The cost of monitoring probation is to be borne by the respondent. The standard monitoring fee for probation is $100.00 per reporting period. Upon appropriate proof of financial hardship probation costs may be reduced with the agreement of HQ.

The cost of FLA probation is $100.00 per month without regard to the frequency of reports.

2. Non reporting probation does not generate a probation monitoring fee, because no monitoring is necessary.

For example, when a discipline includes ethics school, or one of the PPEP workshops, the program administrator will monitor respondent's compliance and notify HQ. When referral to the LOMAS program is the probationary condition, the respondent should be required to contact LOMAS staff within 30 days from the date that the probationary condition is imposed and that the LOMAS review shall be scheduled within 60 days from that date. LOMAS fees substitute for probation monitoring fees since LOMAS will notify HQ whether respondent does or does not comply.

For further information on fees and costs, see the departmental policy on costs inclusion.

PROBATION LANGUAGE

PROBATION [RULE 3-5.1(C)], GENERALLY

A respondent may be placed on probation for a period of time of not less than six (6) months or more than three (3) years or for an indefinite period determined by conditions stated in the order.

Probation may be imposed alone or together with any other discipline recommended, including admonishment or diversion.

CONDITIONS SUBSEQUENT TO DISCIPLINE SHOULD BE CALLED PROBATION:

It is the procedure of The Florida Bar that all "conditions subsequent" to discipline (e.g., LOMAS reviews, restitution, letters of apology, CPA reports, etc.) that are to be monitored by headquarters be termed probation in order to promote consistency in our database. Grievance committees, respondents and referees should be made aware of this policy.

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PROBATIONARY TERMS AND CONDITIONS MUST HAVE SPECIFIC TIME FRAMES:

To ensure enforceability, probationary terms and conditions must include a specific time frame in which to satisfy the condition, e.g., enter into a rehabilitation contract with Florida Lawyers Assistance, Inc. within 30 days of the order of the supreme court , restitution within 30 days of the supreme court's order , or 10 additional hours of CLE in the area of Ethics within 1 year of the order of the supreme court .

PROBLEM PROBATION CASES:

Below are some examples of cases that have been difficult to monitor:

1) A respondent was required to make restitution in the amount of $775. However, the report of referee did not specify a time frame in which to make restitution. Headquarters imposed its own deadline, and required the respondent to show proof of payment to his former client within thirty (30) days from the date of the court's order. In at least one case, HQ has refused to monitor a restitution condition because no time frame was mentioned. Bar counsel ultimately had to file a motion for clarification.

2) A respondent was ordered to undergo a Law Office Management Assistance Service review during his two-year probation. Not requiring a respondent with poor office management to undergo a review quickly (e.g., within the first 60 to 90 days of probation) will probably only result in more complaints. Headquarters and Law Office Management Assistance Service agree that respondents should undergo a LOMAS review within at least 60 days of final discipline in order for Law Office Management Assistance Service to make recommendations and to ensure that those recommendations are carried out by respondent during the probation.

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3) A report of referee required respondent to submit all probation reports to bar counsel only. Bar Counsel wanted headquarters to monitor the case and requested respondent to send his reports to headquarters. Respondent, however, felt that the Bar was asking him to "disobey the referee's report." In this case, bar counsel should have filed a motion for clarification.

4) A respondent was required to attend 12 hours of CLE by personal appearance only . 6 hours of CLE were required to be in the area of trust accounting. The Florida Bar does not have a 6 hour live trust accounting seminar. There is a live trust accounting workshop as a component of the Practice and Professionalism Enhancement Program, but is only 3 hours. There are trust accounting tapes, however, available from Law Office Management Assistance Service. Bar counsel ultimately agreed that respondent could buy the trust accounting tapes from Law Office Management Assistance Service.

MOTIONS FOR CLARIFICATION:

Bar counsel should be careful to review the conditions that respondents place in their consent judgments and should take steps to clarify conditions of probation when the recommendation of a referee is not specific, will be difficult to monitor, or will not be in the best interests of the respondent or the clients.

CONDITIONS OF PROBATION:

Probationary conditions may include, but are not limited to, supervisor or caseload reports regarding respondent's client files; completion of CLE courses; Law Office Management Advisory Service (LOMAS) reviews; attaining a passing score on the ethics portion of the bar exam; reports on trust accounts by a certified public accountant; bar audits; Florida Lawyers Assistance, Inc. evaluation for drug/alcohol rehabilitation; entering into a rehabilitation contract with Florida Lawyers Assistance, Inc.; or unsupervised probation with condition that a finding of probable cause or a finding of minor misconduct will result in the revocation of the probation.

PROBATION LANGUAGE:

The following probation language is requested:

SUSPENSION OF 90 DAYS OR LESS

I recommend that the respondent be suspended from the practice of law for a period of _______ days (period must be 90 days or less) with automatic reinstatement at the end of the period of suspension as provided in R. Reg. Fla. Bar 3-5.1(e).

(Optional) Upon automatic reinstatement to the practice of law, I recommend that respondent be placed on probation for a period of _______. (The period shall not be less than six months nor more than three years, R. Reg. Fla. Bar 3-5.1(c).) The terms and conditions of probation are as follows: (Here set out appropriate probation terms which may include such conditions as quarterly CPA reports, monthly caseload reports, quarterly drug tests through a rehabilitation

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contract with Florida Lawyers Assistance, Inc., restitution, etc. Be sure to include specific time frames for all conditions, e.g., refund deposit to client within 30 days of the order of the Supreme court, etc. The recommendation for filing probation reports should require filing same only with the headquarters office of The Florida Bar.)

PUBLIC REPRIMAND WITH OR WITHOUT PROBATION ADDED

I recommend that the respondent receive a public reprimand to be administered by ______ (Optional) and be placed on probation for a period of __________ [period shall not be less than six months nor more than three years, R. Reg. Fla. Bar 3-5.1(c) and Rule 3-5.1(d)]. The terms of probation are as follows: (Here set out appropriate probation terms which may include such conditions as quarterly CPA reports, monthly caseload reports, quarterly drug tests through a rehabilitation contract with FLA, restitution, etc. Be sure to include specific time frames for all conditions, e.g., restitution to client within 30 days of the order of the Supreme court, etc. When periodic reports are required, it is suggested that the recommendation be for filing the report with the headquarters office of The Florida Bar. See The Florida Bar v. Moran, 273 So. 2d 379 (Fla. 1973) for an excellently worded explicit order of probation.)

ADMONISHMENT WITH OR WITHOUT PROBATION ADDED

I recommend that the respondent be admonished as provided in Rule 3-5.1(a) (Optional) and be placed on probation for a period of ____________ (see comment under public reprimand). The terms of the probation are as follows: (Here set out appropriate probation terms which may include such conditions as quarterly CPA reports, monthly caseload reports, quarterly drug tests through a rehabilitation contract with FLA, restitution, etc. Be sure to include specific time frames for all conditions, e.g. restitution to client within 30 days of the order of the Supreme court, etc.) (The recommendation for filing probation reports should require filing same only with the headquarters office of The Florida Bar.) I further recommend that the admonishment be administered by (see R. Reg. Fla. Bar 3-5.1(a), for approved means of administration).

FLORIDA LAWYERS ASSISTANCE, INC.

a) Evaluation

Respondent will contact Florida Lawyers Assistance, Inc. (FLA, Inc.), at 800-282-8981 for an evaluation within thirty (30) days of the order of the Supreme court of Florida. At the end of the sixty (60) day period, respondent will provide the Bar’s headquarters office with proof that respondent has scheduled an evaluation. Respondent will abide by all recommendations made by FLA, Inc. including, but not limited to, entering into a rehabilitation contract. Should a rehabilitative contract result from the FLA, Inc. evaluation, Respondent agrees to be placed on probation for the period of the FLA contract, but such probationary period shall not exceed three years.

Respondent will pay a Florida Lawyers Assistance, Inc., registration fee of $250.00 and a probation monitoring fee of $100.00 a month to The Florida Bar’s headquarters office. All

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monthly monitoring fees must be remitted no later than the end of each respective month in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation.

b) Rehabilitation Contract

Respondent will participate actively in the program offered by Florida Lawyers Assistance, Inc., by signing a rehabilitation contract with that organization within thirty (30) days of the order of the Supreme court of Florida, or of acceptance of the report of minor misconduct or report of diversion. Respondent shall follow all recommendations by Florida Lawyers Assistance, Inc., during the entire probation period.

Respondent will pay a Florida Lawyers Assistance, Inc., registration fee of $250.00 and a probation monitoring fee of $100.00 a month to The Florida Bar’s headquarters office. All monthly monitoring fees must be remitted no later than the end of each respective month in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation.

MENTAL HEALTH COUNSELOR

Respondent will attend therapy sessions with a licensed mental health counselor during the period of probation. It is the respondent's responsibility to ensure that the counselor submits _____________ (weekly/monthly/quarterly) reports to The Florida Bar during the probationary period. (If quarterly, please state: The quarters are March 31, June 30, September 30 and December 31.) The reports shall confirm respondent's counseling and inform The Florida Bar of respondent's continuing ability to engage in the active practice of law. Respondent is responsible for the submission of the (weekly/monthly/quarterly) statements to The Florida Bar.

Respondent will pay a monthly/quarterly (based on the submission frequency) monitoring fee of $100.00 to The Florida Bar. All monthly/quarterly monitoring fees must be remitted no later than the end of each respective month/quarter in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation.

CERTIFIED PUBLIC ACCOUNTANT

Respondent agrees to retain, at respondent's expense, the services of a certified public accountant acceptable to The Florida Bar to review respondent's trust account records on a monthly basis during the term of probation. Quarterly statements shall be prepared by the certified public accountant for review by The Florida Bar. Respondent is responsible for submission of the quarterly reports to the headquarters office of The Florida Bar. The quarters are March 31, June 30, September 30 and December 31. Statements shall specify whether respondent is in compliance with the Rules Regulating Trust Accounts and shall include the monthly reconciliations of respondent's trust accounts.

Respondent will pay a quarterly monitoring fee of $100.00 to The Florida Bar. All quarterly

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monitoring fees must be remitted no later than the end of each respective quarter in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation.

SUPERVISING ATTORNEY

Respondent agrees to be supervised by an attorney acceptable to The Florida Bar. The supervising attorney shall provide continuous monitoring of respondent's client case files and provide quarterly reports to The Florida Bar regarding the status of the client files and inform The Florida Bar if respondent is meeting his deadlines, returning phone calls and answering correspondence. Respondent is responsible for submission of the quarterly reports to the headquarters office of The Florida Bar. The quarters are March 31, June 30, September 30 and December 31.

Respondent will pay a quarterly monitoring fee of $100.00 to The Florida Bar. All quarterly monitoring fees must be remitted no later than the end of each respective quarter in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation.

LAW OFFICE MANAGEMENT ASSISTANCE SERVICE (LOMAS)

INSERT PERIOD OF PROBATION i.e. ONE YEAR non-reporting probation to commence on the date of the issuance of the order of the Supreme court of Florida (OR OTHER APPROPRIATE DOCUMENT) during which time respondent will undergo an office procedures and record-keeping analysis by and under the direction of the Law Office Management Assistance Service (hereinafter LOMAS) of The Florida Bar. Respondent shall cooperate with LOMAS in the conduct thereof. Respondent shall fully comply with and implement, at respondent’s sole expense, all recommendations made by LOMAS, which recommendations shall be in accordance with the Office Procedures and Record Keeping Guidelines of LOMAS.

Respondent shall be required to contact LOMAS staff within 30 days from the date probation is imposed and shall schedule a review within 60 days from that date. A final review by LOMAS staff shall be conducted not less than 45 days prior to the termination of probation. This final review shall confirm compliance with, and implementation of, the recommendations of LOMAS. LOMAS may require such additional interviews or reviews as it may, in its sole discretion, deem necessary or advisable.

Respondent shall pay all fees and expenses of LOMAS incurred or required in connection with the conduct of its analysis. The minimum fees and costs to be associated with this LOMAS review shall be $1,250.00 review fee and $500.00 travel fee (for discipline cases and for diversions the fees are $1,000.00 review fee and $500.00 travel fee). Respondent shall be responsible for any additional fees and/or costs associated with this review. LOMAS shall provide the Lawyer Regulation Department of The Florida Bar with status reports as to the ordered analysis.

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CASELOAD REPORTS

Respondent shall submit ____________ (monthly or quarterly) caseload reports to The Florida Bar. (If quarterly, please state: The quarters are March 31, June 30, September 30 and December 31.) These reports shall describe the number of current cases that the respondent is handling, the nature of the cases, and what action was taken on those cases during that time period.

Respondent will pay a monthly/quarterly (based on frequency of submission) monitoring fee of $100.00 to The Florida Bar. All monthly/quarterly monitoring fees must be remitted no later than the end of each respective month/quarter in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay will render respondent delinquent and ineligible to practice law.

RESTITUTION

Respondent shall pay restitution to (the former client) in the amount of $ within (30 or 60) days of the entry of the order of the Supreme court of Florida. Respondent must submit proof of payment of restitution to the Bar’s headquarters office in Tallahassee within the time frame for payment of the court’s order or recommendation by grievance committee. Respondent shall provide verifiable proof of payment and receipt which shall consist of a copy (front and back) of the negotiated check or a copy of the check and certified return receipt. In the event the client cannot be located after a diligent search, respondent shall execute an affidavit of diligent search and provide same to The Florida Bar and shall pay the full amount of the restitution to the Clients’ Security Fund of The Florida Bar within 30 days of the date of the affidavit of diligent search.

All conditions of restitution should contain a specific date in which the restitution is due if possible pursuant to Rule 1-3.6(d), RRTFB.

FEE ARBITRATION

Instead of making fee arbitration a condition of reinstatement, we propose that you use the following (or similar) language:

As a condition of this (insert the nature of the discipline), respondent shall participate in the Fee Arbitration Program of The Florida Bar with (his/her) client, (client's full name). Respondent must comply with this condition of the (insert nature of the discipline) by signing a fee arbitration agreement within thirty (30) days of the date of this order.

Respondent agrees to be bound by the decision of the arbitrator and make payment in full within the time frame specified in the award or within ninety (90) days of the award becoming final, if an award is given to the client. Failure to abide by the decision of the arbitrator is in direct violation of this order.

In order for The Florida Bar’s Fee Arbitration Department to proceed, respondent must first

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submit an application to the Fee Arbitration Coordinator, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, 800-342-8060, within thirty (30) days of the court’s order. Respondent must provide proof of submission of this application to the Bar’s headquarter’s office.

All fee arbitration awards should contain a specific date in which the award is to be paid or within 90 days of the award becoming final pursuant to Rule 1-3.6(d), RRTFB.

BAR AUDIT

Respondent will undergo 2 audits of his/her trust account(s) by the branch auditor during the term of probation. Respondent shall pay all fees and expenses of the auditor incurred or required in connection with the conduct of the audit. The branch auditor shall provide the Lawyer Regulation Department of The Florida Bar with copies of the audit reports.

Revised 01/23/09

Glossary

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PROCEDURES FOR ADDRESSING RESTITUTION IN DISCIPLINARY CASES

Procedures for Addressing Restitution in Disciplinary Cases

This section addresses the requirements necessary for determining when restitution is appropriate, the amount of restitution to be included, and the appropriate time frame within which restitution shall be accomplished.

Glossary

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Authority

Relevant rules are:Rule 3-5.1 Generally

A judgment entered, finding a member of The Florida Bar guilty of misconduct, shall include one or more of the following disciplinary measures:

(i) Restitution. In addition to any of the foregoing disciplinary sanctions and any 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. In such instances the amount of restitution shall be specifically set forth in the disciplinary order or agreement and shall not exceed the amount by which a fee is clearly excessive, in the case of a prohibited or illegal fee shall not exceed the amount of such fee, or in the case of conversion shall not exceed the amount of the conversion established in disciplinary proceedings. The disciplinary order or agreement shall also state to whom restitution shall be made and the date by which it shall be completed. Failure to comply with the order or agreement shall not preclude further proceedings under these rules.

On occasion, restitution is ordered by the court, but by the time the final order is issued, respondent may not be able to locate the client and cannot comply with the order. Respondent should not benefit from this situation. Adding the following provision on all restitution cases will allow respondent to comply with the order and keep the funds available for the client. " If respondent is not able to locate the client, the amount owed to the client shall be paid to the Client Security Fund of The Florida Bar.

Rule 3-7.11 General Rule of Procedure

(f) Contempt. If an agency other than a circuit court shall find that a person is in contempt under these rules, such person shall be cited for contempt in the following manner, except that a respondent in a disciplinary proceeding may be cited for contempt by petition for an order to show cause.

Rule 1-7.3(a) Membership Fees

(a) Membership Fees Requirement. On or before July 1 of each year, every member of The Florida Bar, except those members who have retired, resigned, been disbarred, or been classified as inactive members pursuant to rule 3-7.13, shall pay annual membership fees to The Florida Bar in the amount set by the budget, provided that the board of governors shall not fix the membership fees at more than $265 per annum. At the time of the payment of membership fees every member of The Florida Bar shall file with the executive director a statement setting forth any information that may be required by the board of governors.

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Membership fees tendered to The Florida Bar shall not be accepted from any member who has not paid costs imposed against the member in a diversion case or disciplinary proceeding within 30 days after the disciplinary decision becomes final unless such time is extended by the board of governors for good cause shown; or has not made restitution in the manner and by the date provided in the disciplinary order or agreement. A member who has not paid diversion or disciplinary costs or made restitution as required by this subdivision shall be deemed a delinquent member as defined elsewhere in these rules.

Basic considerations for restitution issues are the:

appropriateness of restitution;necessity of certainty in restitution;amount of restitution;person(s) to whom restitution is to be made; time in which restitution is to be accomplished; andability to enforce restitution.

Glossary

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Appropriateness of Restitution

The first consideration is whether restitution is authorized and appropriate. Restitution is appropriate when authorized by rule and if it will be an effective component in any sanction or alternative to a sanction. Care should be exercised to avoid the impression that the disciplinary process is being used as a civil collection tool. Restitution is authorized pursuant to Rule 3-5.1(i).

Glossary

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Necessity of Certainty

In order for restitution to be an effective component of a sanction, or an alternative thereto, the terms of the restitution must be certain and enforceable. Certainty requires that the amount of restitution must be clearly established, the person(s) to whom the restitution is to be made must be clearly identified, and a time frame in which restitution is to be accomplished must be provided. Open-ended or non-specific times for making restitution (such as a condition precedent to reinstatement) make restitution uncertain, not subject to enforcement via contempt (3-7.11(f)) or withholding the ability to pay membership fees (1-7.3(a)), and therefore illusory in nature.

Unless it is an impediment to settlement or other resolution of a disciplinary case, bar counsel shall insist upon a specific time for completion of restitution. Bar counsel shall not agree to restitution as a condition of reinstatement or readmission nor shall bar counsel draft an agreement requiring restitution without a time for such (such as in a public reprimand case requiring restitution without any reference as to by what date).

Glossary

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Role of The Florida Bar in Restitution

The bar does not have trust accounts and cannot be the conduit through which restitution is accomplished. For this reason, any agreement or order of restitution must require payment from the respondent directly to the appropriate person(s) and shall not require the bar to receive the funds and redirect them accordingly.

Glossary

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Effect of Failure to Accomplish Restitution as Ordered or Agreed

Restitution must be accomplished in the manner and within the time frame provided in the agreement or order imposing the obligation. Restitution that has not been accomplished within the timeframe provided is deemed delinquent and causes the respondent to become ineligible to practice law (Rule 1-3.6), and is grounds for refusal to accept payment of annual membership fees (Rule 1-7.3(a)).

Glossary

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Enforcement Options

Glossary

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Cases Without Specified Time Frames for Restitution

If restitution is ordered or agreed to, but no time frame is included, the only options are to seek either an agreement from the respondent or an amended order from the court clarifying the time in which restitution is to be made.

Headquarters personnel will review existing files as an inquiry is made. If clarification is needed headquarters personnel will consult bar counsel who shall initiate efforts to secure an agreement from the respondent. When those efforts are unsuccessful, headquarters counsel will initiate court action to effectuate clarification.

These contempt cases will be processed in the same manner as other contempt cases. If trial is necessary, the file will be referred to bar counsel in the appropriate office.

Headquarters personnel shall review proposed documents in new cases in an attempt to make certain that specific times for making restitution are included.

Glossary

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Cases With Specified Time Frames for Restitution

If restitution is ordered within a specified time and that time has expired, enforcement tools are contempt (3-7.11(f)) and refusal to accept annual fee payments (1-7.3(a)).

Contempt is favored because it allows the failure to make time oriented restitution to be addressed contemporaneously. Depending upon the time of the fiscal year in which the failure occurs, refusal to accept annual fee payments may not be available until a significant period of time has elapsed. Contempt also allows the lawyer regulation department to maintain control over enforcement of the restitution requirement. Unlike delinquent costs, we cannot “capture” tendered annual fee payments and apply them to delinquent restitution.

These contempt cases will be processed in the same manner as other contempt cases. If trial is necessary, the file will be referred to bar counsel in the appropriate office.

Glossary

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Requests for Payment of Restitution

In all instances, the lawyer regulation department will request the membership records department to provide annual fee statements for lawyers who owe restitution so that headquarters personnel may send a letter to those lawyers identifying the amount of restitution and the time in which such must be accomplished.

If restitution is delinquent, that is, not made within a time specified, the lawyers will be advised that annual membership fees shall not be accepted until the lawyers have made restitution directly to the appropriate person(s) and provided proof of restitution to the bar.

If restitution is not delinquent, that is, the time for making restitution has not yet passed, or if no time is specified, or if restitution is conditioned on reinstatement, the lawyers will be advised as to the amount of outstanding restitution and will be asked to provide the bar with information concerning the lawyers’ intention on making restitution. In this instance, payment of membership fees may not be rejected and no reference thereto shall be made in the accompanying letter.

The amounts of restitution will not be included in the amounts owed as shown on the membership fee statements.

Glossary

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DISCIPLINARY COSTS

Disciplinary Costs

A general policy concerning costs assessment follows this chapter.

Costs should be assessed in all discipline matters in which a report of minor misconduct or Supreme Court of Florida order is issued. The amount of costs assessed should include a $1,250 administrative fee plus reimbursement for all costs of proceedings including, but not limited to, court reporter services, copying charges incurred, and investigators time.

Glossary

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DISCIPLINARY COSTS

Allowable Costs Rule 3-7.6(o)

Allowable costs are:

investigative costs, including travel and out-of-pocket expenses;court reporters’ fees;copy costs;telephone charges;fees for translation services;witness expenses, including travel and out-of-pocket expenses;travel and out-of-pocket expenses of the referee;travel and out-of-pocket expenses of counsel in the proceedings, including of the

respondent if acting as counsel; andan administrative fee in the amount of $1,250 when costs are assessed in favor of the bar.

3-7.6(I)

It is the policy of The Florida Bar to attempt to negotiate prepayment of all tendered minor misconducts and consent judgments to the extent that costs are known at the time of negotiation. PREPAYMENT WILL NOT BE THE CAUSE OF FAILED NEGOTIATIONS IN THESE CASES, BUT, AS STATED, IS STRONGLY ENCOURAGED.

Once a report of minor misconduct has been mailed to the respondent for review, the respondent has 15 days in which to accept or reject the report. If the respondent does not accept or reject the report within these 15 days, it is automatically accepted. Costs assessed by the report of minor misconduct are due and owing upon acceptance and become delinquent 30 days after the date of acceptance. 1-7.3.

If a respondent becomes delinquent in the payment of disciplinary costs, the respondent will not be eligible to practice until the delinquency has been removed.

Glossary

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DISCIPLINARY COSTS

Supreme Court Orders

In the case of costs assessed by the Supreme Court of Florida, costs become delinquent 30 days after the order is final. If a motion for rehearing is filed and denied, interest accrues from the date the rehearing was denied. If a rehearing is granted, the time tolls anew. These delinquent costs accrue interest at the statutory rate approved as of the date of the judgment.

Glossary

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DISCIPLINARY COSTS

Cost Collection and Payment Plans

Once a report of minor misconduct or order of the Supreme Court of Florida is issued, the collection of costs becomes the responsibility of the headquarters office of lawyer regulation. Through the use of legal assistants, initial letters are sent, judgments recorded and payments received. Any questions regarding costs that are due and owing should be referred to headquarters.

It is in the best interest of The Florida Bar to consider those disciplined members who are in extreme financial hardship for payment plans on costs which have been assessed. MEMBERS SEEKING PAYMENT PLANS SHOULD AGAIN BE DIRECTED TO CONTACT HEADQUARTERS. Those members applying for payment plans should be warned that an extensive, sworn, financial affidavit will have to be completed, including a statement of assets and liabilities. This affidavit will be thoroughly reviewed and investigated. ANY FALSEHOODS IN THIS AFFIDAVIT WILL BE REFERRED TO BAR COUNSEL FOR APPROPRIATE DISCIPLINE. Those members seeking a payment plan requiring completion longer than 1 year after the date of the order who pass the preliminary stage of investigation will have to petition the Board of Governors for approval. Members applying for payment plans will continue to accrue interest and will remain on the hold fees list unless and until the plan is approved. Bar counsel should keep in mind when discussing costs with members, before suggesting applying for a payment plan, that those members who remain in the practice of law with costs in an amount less than $1,000 will only receive a payment plan under the most extreme circumstances. Some of the considerations used in reviewing payment plans are willingness to pay and any good faith effort made, amount of assessed costs, and whether or not respondent will continue in the practice of law.

Bar counsel does not have the authority to enter into payment plans with respondents. Payment plans are the sole authority of staff counsel for plans that will retire the entire obligation within one calendar year and the board of governors for all other plans.

Glossary

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DISCIPLINARY COSTS

Policy on Costs Inclusion

DIVERSION CASES

In general, diversion to the ethics school and workshops at the Grievance Committee or Staff level will result in only one administrative fee of $750 being charged without regard to the number of PPEP components involved, unless one of the PPEPS is Professionism Workshop. Diversions at Referee level require more time expended by bar staff and in addition to the PPEP fee, the standard $1250 administrative costs are applied. Exceptions are listed below.

If restitution is also involved as a component of diversion, no additional fee is required therein. The fees otherwise listed below apply.

In matters requiring arbitration or mediation, no additional fees are required.

These policies apply to out-of-state diversions as well.

Waiver or compromise of costs is permissible, but should be handled in headquarters for the most consistency.

Professionalism Workshop No Administrative CostsOnly Actual Out-of-Pocket Expenses

Workshop Fee $750

Professionalism Workshop No Administrative Costsand any other Workshops Actual Out-of-Pocket Expenses

Workshop Fee $1,000

*The following excludes Professionalism Workshop*

Ethics School/Workshops No Administrative CostsOnly Actual Out-of-Pocket Expenses

Ethics School/Workshop Fee $750

Any 2 Workshops No Administrative CostsActual Out-of-Pocket ExpensesOnly 1 Workshop Fee $750

CLE Only Administrative Costs $750Actual Out-of-Pocket ExpensesCLE Registration Fees

FLA Only Administrative Costs $750Actual Out-of-Pocket Expenses

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FLA Registration Fee $250FLA Monitoring Fee $100/Month

LOMAS Only No Administrative CostsActual Out-of-Pocket ExpensesLOMAS Fee $1,750

Ethics School/Workshops No Administrative Costsand LOMAS Actual Out-of-Pocket Expenses

Ethics School/Workshop Fee $750LOMAS Fee $1,750

Ethics School/Workshops No Administrative Costsand FLA Actual Out-of-Pocket Expenses

Ethics School Registration Fee $750FLA Registration Fee $250FLA Monitoring Fee $100/Month

Ethics School/Workshops No Administrative Costs and CLE Actual Out-of-Pocket Expenses

CLE Registration FeesEthics School Registration Fee $750

FLA and LOMAS No Administrative CostsActual Out-of-Pocket ExpensesFLA Registration Fee $250FLA Monitoring Fee $100/MonthLOMAS Fee $1,750

FLA and CLE Administrative Costs $750Actual Out-of-Pocket ExpensesFLA Registration Fee $250FLA Monitoring Fee $100/MonthCLE Registration Fee as Set by CLE

FLA and Stress Management No Administrative CostsWorkshop Actual Out-of-Pocket Expenses

FLA Registration Fee $250FLA Monitoring Fee $100/MonthWorkshop Registration Fee $750

FLA and Trust Accounting No Administrative CostsWorkshop Actual Out-of-Pocket Expenses


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Workshop Registration Fee $750

FLA and Restitution Administrative Costs $750Actual Out-of-Pocket ExpensesFLA Registration Fee $250FLA Monitoring Fee $100/MonthRestitution as Specified

MINOR MISCONDUCT CASES

Since Minor Misconduct is a discipline we are entitled to collect an administrative cost. However, we will be flexible in either waiving or reducing this cost when Respondent can show hardship and some other amount of money payable to the bar is requried.

Admonishment Only Administrative Costs $1250 +Actual Out-of-Pocket Expenses

Admonishment & Referral Administrative Costs $1250 +to FLA Out-of-Pocket Expenses


Admonishment and LOMAS Administrative Costs $1250Actual Out-of-Pocket ExpensesLOMAS Fee $1750

Admonishment and Ethics Administrative Costs $1250School Actual Out-of-Pocket Expenses

Ethics School Registration Fee $750

Admonishment and CLE Administrative Costs $1250Actual Out-of-Pocket ExpensesCLE Registration Fee as Set by CLE

Admonishment and Stress Administrative Costs $1250Management Actual Out-of-Pocket Expenses


Admonishment and Trust Administrative Costs $1250Accounting Workshop Actual Out-of-Pocket Expenses


Admonishment and Restitution Administrative Costs $1250Actual Out-of-Pocket ExpensesRestitution as Specified

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Glossary

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AGENDA ITEM HANDBOOK

Agenda Item Handbook

Disciplinary Agenda HandbookRevised June 2004

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INDEX

I. IntroductionII. Action and Review of Agenda ItemsIII. Disciplinary/Miscellaneous CasesIV. Agenda Item FormV. DescriptionofAgendaItemContentsVI. ExampleAgendaItem

Report of RefereeConsent JudgmentDR Review of Grievance Committee FindingPetition for Placement on Inactive Status

VII. AbeyancesVIII. Retirements (Non-Discipline Related)IX. Reinstatements (Non-Discipline Related)X. Deferral of Costs PaymentsXI. Waiver of Rules 3-7.11(i)(3)XII. Appointment of Grievance Committee MembersXIII. Appointment of Outside Bar CounselXIV. Executive Committee Action XV. Example Executive Committee Memo and Notice of Executive Committee Action

Executive Committee Memorandum Notice of Executive Committee Action

Glossary

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Introduction

The agenda item is the vehicle whereby disciplinary matters are referred to the Disciplinary Review Committee (DRC), Executive Committee and the Board of Governors of The Florida Bar (board) for direction as to the position to be taken on the case by the bar.

The board meets every other month for 2-3 days in different cities throughout Florida. One meeting per year is held out-of-state. At each meeting, approximately one-half day is spent on disciplinary matters. A typical disciplinary agenda will have between 25-40 agenda items as well as membership retirements, reinstatements from fee delinquency, cost deferrals, and other miscellaneous matters.

A deadline for submission of agenda items to headquarters is established prior to each meeting of the board. Staff counsel will review the agenda items, redraft when necessary, print and disseminate to the board. Only the following items should be sent to headquarters after that date: reports of referee, petitions for reinstatement, emergency matters, and matters requested by the designated reviewer.

Agenda items should be submitted periodically between board meetings and not sent en masse , near the deadline. This becomes more important as the size of disciplinary agendas increase. Forty agenda items may generate as much as 800 pages of backup documentation. For adequate staff and board review, items must be submitted to headquarters as soon as possible after receipt.

At the board meeting, all agenda items are first reviewed by the DRC which consists of approximately 20 members of the board. Their recommendations are referred to the full board for final action. Items submitted, without debate (i.e., designated reviewer, trial counsel and DRC all agree as to the recommendation), are brought before the board as consent calendar (roll-call) items. Only debated items are discussed before the full board.

Staff counsel and the Director of Lawyer Regulation present the staff position on all cases and advise both the DRC and the full board on procedural issues. If questions arise at the DRC meeting on particular aspects of an agenda item, Chief Branch Discipline Counsel (CBDC) will be called to clarify or provide additional information. If time permits, this new information is presented to the DRC. If not, it will be relayed to the full board.

Glossary

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Action and Review of Agenda Items

AGENDA ITEM PREPARED BY TRIALCOUNSEL

CBDC REVIEW

REVIEW OF AGENDA ITEM BY DIRECTOR OFLAWYER REGULATION AND STAFF COUNSEL

DISCIPLINARY REVIEWCOMMITTEE

BOARD

Glossary

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Disciplinary/Miscellaneous Cases

The agenda item is prepared by the trial counsel assigned to the case and reviewed by the CBDC prior to referral to headquarters. It is the responsibility of trial counsel to provide the factual content of the agenda item and to reflect all appropriate recommendations.

Trial counsel should strive to prepare the agenda item within three (3) working days of receipt of a report of referee unless a deadline should make it necessary to prepare it more promptly. Send the agenda item to the director of lawyer regulation and HQ Office Manager via e-mail.

The following types of disciplinary cases must be submitted as an agenda item for consideration by the board:

1. Report of Referee: submitted to determine if the bar will accept the referee's findings and recommended discipline or if the bar will petition for review in the Supreme Court of Florida. Referee reports based on consent judgments which have been approved by the designated reviewer and staff counsel are not subject to board review. See, rule 3-7.9(a).

2. Reinstatements: submitted when a report of referee is filed following a contested reinstatement. If the reinstatement is uncontested, no board review is necessary. Standing Board Policy 15.30(b)

3. Petition for Disciplinary Revocation: submitted to determine whether the bar will support or oppose a respondent's petition. The bar's response must be submitted to the court within 60 days of the filing of the petition. Rule 3-7.12(b)

4. Grievance Committee Actions: Submitted only when the designated reviewer disagrees with the grievance committee action.

5. Felony Conviction Cases: submitted only to determine if further disciplinary action should not be taken.

The following types of miscellaneous cases must be submitted as an agenda item for board consideration.

1. Retirements: age and physical incapacity only (prepared by the membership records department).

2. Reinstatements: Administrative reinstatement; i.e., membership fee delinquency and mental incapacity cases only (prepared by the membership records department).

3. Deferral of Costs Payments: petitions to defer or authorize payment schedules for disciplinary costs that would exceed one year (prepared by headquarters office).

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4. Waiver of Rule 3-7.11(h), Rules of Discipline: partners and associates of board members, committee members, or bar counsel, or former bar counsel representing adverse parties must receive a waiver of this rule to continue the representation (Standing Board Policy 15.10 grants authority to the executive director to issue waivers as provided under this policy. The executive director reports to the board all waivers granted or denied (prepared by headquarters) .

5. Appointment of Grievance Committee Members: prior appointments are agendaed for ratification (prepared by headquarters).

6. Appointment of Outside Bar Counsel: board approval for outside bar counsel must be given.

7. Notice of Executive Committee Action: action taken by the executive committee is agendaed for review.

8. Petitions for Placement on the Inactive List: non discipline cases that are processed in the same procedure as for regular files; the issue is whether the bar will oppose these petitions.

Glossary

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Agenda Item Form

The agenda item form following this section is for use in the following types of disciplinary cases:

1. Referee Reports

2. Reinstatement Cases: Disciplinary reinstatement i.e., after a rehabilitative suspension.

3. Petitions for Disciplinary Revocation

4. Grievance Committee Actions (only when the designated reviewer disagrees with a grievance committee action.

5. Felony Conviction Cases (when seeking board direction and authorization not to take further disciplinary action)

6. Consent Judgments (prior to filing a complaint).

7. Petitions for Placement on the Inactive List: non discipline cases that are processed in the same procedure as for regular files; the issue is whether the bar will oppose these petitions.

8. Notice of Executive Committee Action: action taken by the executive committee is agendaed for ratification.

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AGENDA ITEM

BOG Meeting: (1)The Florida Bar v. (2)The Florida Bar File No(s). (3)Supreme Court Case No(s). (4)Type of Case and Recommendation (5)

Age:(6)Date of Admission: (7)Current Bar Status: (8)Location of Practice: (9)Law Firm: (10)Certified Area(s) of Practice: (11)Prior Discipline: (12)Other Pending Disciplinary Cases: (13)Designated Reviewer: (14)Chief Branch Disciplinary Counsel: (15)Trial Counsel: (16)Respondent's Counsel: (17)Complainant: (18)Referee: (19)

SUMMARY

Narrative Summary: (20)

Nature of Violations: (21)

Mitigating Factors: (22)

Aggravating Factors: (23)

Client Prejudiced: (24)

Client's Security Fund Exposure: (25)

Discipline Received in Similar Cases:(26)

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Discipline Indicated by Standards for Imposing Lawyer Sanctions: (27)

RECOMMENDATIONS

Grievance Committee: (28)

Trial Recommendations: Bar Counsel's Recommendation to Referee: (29)Referee's Proposed or Recommended Discipline: (30)Recommendation to Board: (31)

Designated Reviewer: (32)

Prior Board Action and Date: (33)

Disciplinary Review Committee: (34)

For: Against: ________

Glossary

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Agenda Item Checklist

Agenda Item Checklist

Obtain approval as follows:

Date

1. An Agenda Item is to be prepared, within three days of receipt of a Report of Referee. The agenda item should be prepared according to the type of case i.e., report of referee, consent judgment, etc., see forms.

2. Prepare the cover letter for DR approval and forward to the Designated Reviewer.

3. The completed agenda item is forwarded to Chief Branch Discipline Counsel (CBDC) by e-mail.

4. Upon approval by CBDC, send via e-mail the agenda item (with backup) to Director of Lawyer Regulation. Headquarters will review and concur, won't concur and/or raise questions and forward remarks to CBDC and ADC.

Glossary

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Executive Committee Action Checklist

Checklist Executive Committee Action

Obtain approval as follows:

Date

1. Prepare an agenda item as required for the type of case before the Executive Committee i.,e., report of referee, consent judgment, etc., -- see forms.

2. Prepare the Executive Committee Memorandum.

3. E-mail the agenda item, Executive Committee Memorandum and any available backup to CBDC.

4. If CBDC approves, prepare the Cover Letter for DR Recommendation to

obtain the Designated Reviewer's position.

5. After receipt from DR of his/her position, send the executive committee memo with required backup documents to Staff Counsel by e-mail.

6. Staff counsel will send out the executive committee memo by e-mail and copy the Executive Director, Legal Division Director, Bar Counsel, CBDC, the Assistant to the President and the DR.

7. After receipt of a majority vote from the Executive Committee, HQ will prepare the Exec Committee Action form for inclusion with the disciplinary agenda for the next Board of Governor's meeting and notify bar Counsel as to the results of the vote.

8. If appropriate, Staff Counsel will prepare a transmittal letter to the Clerk of the Supreme Court (Letter to FSC Notice of EC Action) notifying them of the action taken by the Executive Committee.

The time for filing a petition for review (60 days) begins to run for all parties from the date the referee signs the Report of Referee.

Glossary

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Description of Agenda Item Form Contents

Agenda items should be prepared in 14 point Times New Roman with line spacing set at 1.2.

(1) BOG Meeting: The month and year of the board meeting for this item's review (i.e., February 1999).

(2) Case Style: The full record bar name of the respondent, as it is reflected in The Florida Bar's membership records.

(3) The Florida Bar File No.: The file number assigned by The Florida Bar. Please do not include emergency suspension, felony conviction, or resignation case numbers unless action on those specific matters is at issue. For example, if respondent wants to resign with cases one and two pending, do not use case numbers one and two, use the resignation case number only. The pending cases should be listed under section 13.

(4) Supreme Court Case No.: If a supreme court case number has been assigned, place the number here. If not, type: Not Yet Assigned.

(5) Type of Case and Recommendation: State the type of case and recommendation (i.e., report of referee recommending a 91 day suspension, disciplinary resignation, consent judgment for public reprimand, removal of inactive status, etc.).

(6) Age: The actual age in years, not date of birth, must be calculated and noted. The respondent's year of birth is found in AS400, M01 screen. If the information is not available, the respondent or membership records (extension 5832 in Tallahassee) should be consulted.

(7) Date of Admission: The date the respondent was admitted to The Florida Bar should be

reflected here. This date is on the AS400, M01 screen. Please type date in full format (i.e., September 22, 1998).

(8) Current Bar Status: Respondent's current status of membership should be reflected here. This information is available in the AS400, M01 screen (i.e., member in good standing, delinquent in payment of annual membership fees, Delinquent in CLER, suspended, etc.)

(9) Location of Practice: The city and state (no abbreviations) in which the respondent primarily practices law is reflected here. If a change in such primary place of practice has occurred since the alleged misconduct, the new and old locations should be noted. If the respondent is suspended, indicate the location of practice prior to suspension.

(10) Law Firm: The name of the respondent's law firm is listed here. If respondent is a sole practitioner, that fact should be noted. If the respondent is suspended, or otherwise not

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currently practicing, note the name of the law firm prior to suspension.

(11) Certified Area(s) of Practice: If the respondent is certified under the Florida Certification Plan, such area(s) of certification is reflected here. This information may be obtained from the general biographical information and the BLSE office in Tallahassee. It is also contained in the geographical roster of the Directory Issue of The Florida Bar Journal. If the respondent is not certified in any area, type: None.

(12) Prior Discipline: In those cases where the respondent has received any discipline or has resigned, such action is reflected under this section. Do not reflect The Florida Bar or Supreme Court case number. List the most recent discipline first and a brief basis for the discipline followed by the next most recent discipline and the body that imposed the discipline. Example:

1. The respondent received a public reprimand by court order dated July 1, 2003, for neglect of a clients dissolution of marriage case.

2. The respondent received a grievance committee admonishment by report of minor misconduct dated July 1, 2001, for failing to adequately communicate with client.

Emergency or felony conviction suspensions should be reflected in this section (Dismissals, diversions, and NPC's and reinstatements are not reported).

(13) Other Pending Disciplinary Cases: All disciplinary cases currently pending against the respondent are noted in this section. The case number, complainant's name, status and a summary of the case are to be reported. The AS400, G01 option, will reflect all pending cases.

(14) Designated Reviewer: The full record bar name of the member of the board, as it is reflected in The Florida Bar's membership records in AS400, M01 screen, who is assigned to the particular committee which processed or would have processed the disciplinary case against the respondent is noted in this section. A substitute designated reviewer should be noted as such and the designated reviewer, if recused, should also be listed.

(15) Chief Branch Discipline Counsel: The full record bar name of the attorney in charge of the branch office handling this case should be noted in this section, as it is reflected in The Florida Bar's membership records in AS400, M01 screen.

(16) Trial Counsel: The full record bar name of the staff attorney who handles or is responsible for the particular case that is the subject of the agenda item is reflected here, as it is reflected in The Florida Bar's membership records in AS400, M01 screen.

(17) Respondent's Counsel: The status of legal representation for the respondent is noted here by listing the full record bar name of respondent's attorney, as it is reflected in The Florida Bar's membership records in AS400, M01 screen. If the respondent is

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self-represented, the notation of pro se should be indicated.

(18) Complainant: The name(s) of all complainants should be noted in this section.

(19) Referee: If a referee has been appointed to hear the case, the full record bar name of the referee, as it is reflected in The Florida Bar's membership records in AS400, M01 screen is noted here.

(20) Narrative Summary: A brief but complete synopsis of the facts of the case is presented in this section. Sufficient background facts are to be listed to advise the board of the posture of the case and specific facts relative to the action for which the case was agendaed must also be reflected. Do not merely refer to the report of referee or make wholesale verbatim quotes.

(21) Nature of Violations: In this section, the rule provisions are listed and the general nature of the misconduct is described. The rule citations are always listed first, with the description following. For example:

The referee found respondent guilty of violating the following Rules Regulating The Florida Bar: 4-1.3, for failing to act with reasonable diligence and promptness in representing a client by failing to attend a scheduled hearing.

All violations alleged in the complaint are not reflected. Only those violations on which the referee has found guilt or those violations which have been admitted are reflected. In resignation cases, the alleged rule violations in each pending case are noted with appropriate case number references. When a not guilty recommendation is made, rules are reflected in the narrative summary.

(22) Mitigating Factors: The citation to the Florida Standards for Imposing Lawyer Sanctions is required here. For example:

Mitigating Factors: 9.32(b) absence of a dishonest or selfish motive

(23) Aggravating Factors: The citation to the Florida Standards for Imposing Lawyer Sanctions required here.

Aggravating Factors: 9.22(d) multiple offenses

(24) Client Prejudiced: Yes or No. If yes, reflect a brief summary of any loss, extra expense or even a temporary deprivation experienced by the client.

(25) Clients' Security Fund Exposure: Yes or No. If yes, reflect the estimated amount of the claim and potential award, along with a brief explanation.

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In order for a claim against the fund to be valid, there generally must be:

a. an attorney-client relationship between respondent and claimant;

b. receipt of money for legal services and no useful services performed (maximum $25,000 claim); and

c. theft of client's money entrusted to the respondent in the course of the attorney-client relationship (maximum claim $50,000).

Fiduciary capacity claims (relationships customary to the practice of law) are covered by the fund.

(26) Discipline Received in Similar Cases: Any prior disciplinary cases which are sufficiently similar to the agendaed case are reflected by case number, case name, date of action, discipline imposed and a brief description of facts.

(27) Discipline Indicated by Standards for Imposing Lawyer Sanctions: References to standards are made here in regard to each rule violation found. For example:4.1 Failure to Preserve the Client's Property4.11 Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury.

(28) Grievance Committee: If the committee took action on the case, the committee's action is noted here as a recommendation. For example:

Found probable cause (if no discipline recommended);

entered a grievance committee report recommending an admonishment for minor misconduct;

N/A (if the committee did not hear the case); or

any other recommendation officially made.

Trial Recommendations:(29) Bar Counsel's Recommendation to Referee: If trial counsel had the opportunity to and

actually made a recommendation to the referee as to the appropriate discipline, the recommendation is reflected here. If no recommendation was made, that fact is noted.

(30) Referee's Proposed or Recommended Discipline: This section is applicable only in cases where a report of referee has been entered. The disciplinary measures set forth in the referee's report are noted here.

(31) Bar Counsel's Recommendation to Board: Trial counsel must recommend to the board either approval of or opposition to the report of referee, grievance committee report or resignation. Trial counsel must explain any differences in this recommendation and

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that made to the referee. If the recommendation is to approve or oppose a petition for disciplinary resignation, note the number of years the respondent is without leave to reapply. If the recommendation is to approve or oppose a consent judgment, note the discipline and conditions contained in the consent judgment. The following standard language must be used according to the type of case:

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Report of RefereePetition for review of the report of referee.Do not petition for review of the report of referee.

Consent JudgmentApprove the consent judgment.Reject the consent judgment.

(32) Designated Reviewer: Trial counsel must consult with and secure the recommendation of the designated reviewer concerning the appropriate action to be taken or discipline to be imposed. In cases involving grievance committee actions, the nature of the designated reviewer's disagreement with the report or the reason for referral to the board should be noted. If the designated reviewer disagrees with the position of trial counsel, make sure that staff counsel and the director of lawyer regulation are fully informed of the designated reviewer's position and rationale. Try to make that information known as early as possible in order to allow adequate time for further contact, if needed, prior to the board meeting. If the DR concurs with bar counsel, simply type "Concurs with Bar Counsel."

NOTE: The agenda item should not be delayed while waiting to find out the designated reviewer's position. If the DR comments are still pending, simply type "Pending." Email, mail or telephone headquarters when the recommendation has been made.

(33) Prior Board Action and Date: If the board has previously considered the case, the date of the board's consideration and action taken (including no action) is noted in this section. If the board has not previously considered this case, write: None

(34) Disciplinary Review Committee: This section is reserved for use to reflect the DRC vote.

Glossary

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Example Agenda Items

Glossary

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Report of Referee

# Report of Referee

AGENDA ITEM

BOG Meeting: August 2003

The Florida Bar v. Richard Paul CondonThe Florida Bar File No. 2002-30,788(09A)Supreme Court Case No. SC02-2245Report of Referee: Recommending Admonishment

Age: 59Date of Admission: November 13, 1970Current Bar Status: Member in Good StandingLocation of Practice: Kissimmee, FloridaLaw Firm: Sole PractitionerCertified Area(s) of Practice: NonePrior Discipline: 1. The respondent received a 3 year rehabilitative suspension by court order dated December 15, 1994 for commingling his funds with clients trust funds and for failing to hold in trust funds in which both attorney and mortgagee claimed an interest.2. The respondent received an 18 month rehabilitative suspension by court order dated February 17, 1994 for misuse of trust account funds.Other Pending Discipline Cases: The Florida Bar File No. 2004-30,051(9A), is pending at staff level and involves allegations of fee and trust account violations.Designated Reviewer: Russell W. DivineChief Branch Disciplinary Counsel: Jan K. WichrowskiTrial Counsel: Patricia Ann Toro SavitzRespondent's Counsel: pro seComplainant: Anna Marie GriffinReferee: David Alan Demers

SUMMARY

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Narrative Summary: In or around January 2001, Anne-Marie Griffin paid respondent a $1,000.00 legal fee to represent her minor son in a child custody/visitation matter. Although Ms. Griffin's son wished to reside with Ms. Griffin in Florida, Ms. Griffin's ex-husband, a Colorado resident, had primary custody of the minor child. Ms. Griffin was granted visitation with her son from June 13, 2001 through August 18, 2001, and her son was scheduled to return to Colorado on August 18, 2001. Respondent assured Ms. Griffin and her son that he would file a Petition to Establish Residential Responsibility, stating that it was in the best interests of the minor to remain in the Florida with his mother. Although respondent was aware the child was under court order to return to Colorado on or before August 18, 2001, respondent failed to file the Petition to Establish Residential Responsibility in Hillsborough County, Florida until August 13, 2001. Respondent also failed to take the necessary steps to have the matter heard by the court. Further, respondent did not prepare and file the UCCJA forms with the Petition. The Petition was denied without a hearing. The referee found respondent not guilty of 4-1.4 and specifically found that only minimal discipline was appropriate due to the many mitigating factors in the case.

Nature of Violations: The referee found respondent guilty of violating the following Rules Regulating The Florida Bar: 4-1.1 for failing to provide competent representation to a client; and 4-1.3 for failing to act with reasonable diligence and promptness in representing a client.

Mitigating Factors: 9.32(b) absence of a dishonest or selfish motive.

Aggravating Factors: 9.22(a) prior disciplinary offenses; and(i) substantial experience in the practice of law.

Client Prejudiced: Yes, due to respondents negligence, the client was never afforded the opportunity to present her claim to the court.

Clients' Security Fund Exposure: No

Discipline Received in Similar Cases:The Florida Bar v. Boyajan, The Florida Bar File No. 2002-30,625(05B), an attorney received an admonishment for failing to provide competent and diligent representation to a client in a personal injury case. The clients case was eventually

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dismissed because there was no record activity in the case for more than one year.

The Florida Bar v. G., The Florida Bar File No. 1988-30,292(18A), an attorney received a private reprimand with a board appearance for incompetent representation. The attorney was hired to handle a discrimination suit. Thereafter, he failed to conduct discovery, failed to follow several federal court rules of procedure, and called no witnesses on his clients behalf at trial. The suit was dismissed for failure to present a prima facie case, resulting in a judgment against the client for attorneys fees and costs.

Discipline Indicated by Standards for Imposing Lawyer Sanctions:4.4 Lack of Diligence 4.44 Admonishment is appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client.

4.5 Lack of Competence4.54 Admonishment is appropriate when a lawyer engages in an isolated instance of negligence in determining whether the lawyer is competent to handle a legal matter, and causes little or no injury to a client.

RECOMMENDATIONS

Grievance Committee: Found probable cause.

Trial Recommendations:

Bar Counsel's Recommendation to Referee: Urged a suspension due to respondent's prior disciplinary history and payment of disciplinary costs.

Referee's Proposed or Recommended Discipline: Admonishment and payment of disciplinary costs.

Bar Counsel's Recommendation to Board: Do not petition for review of the report of referee .

Designated Reviewer: Concurs with bar counsel.

Prior Board Action and Date: None

Disciplinary Review Committee:

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For: ____________ Against: ____________

Glossary

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Consent Judgment

# Consent Judgment

AGENDA ITEM


The Florida Bar v. Louis Michael Jepeway, Jr.The Florida Bar File No. 2002-70,883(11F) Supreme Court Case No. Not Yet Assigned Consent Judgment for Public Reprimand

Age: 60Date of Admission: December 16, 1968Current Bar Status: Member in Good StandingLocation of Practice: Miami, FloridaLaw Firm: Sole PractitionerCertified Area(s) of Practice: None Prior Discipline: Respondent received a grievance committee admonishment on March 27, 1997, for lack of diligence.Other Pending Discipline Cases: NoneDesignated Reviewer: David Winthrop BianchiChief Branch Disciplinary Counsel: Arlene Kalish SankelTrial Counsel: Randolph Max BrombacherRespondent's Counsel: pro seComplainant: Leo C. HollingsworthReferee: N/A

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SUMMARY

Narrative Summary: Respondent was appointed to represent a criminal defendant charged with second degree murder. From June, 1998 to March, 2000, respondent failed to keep his client reasonably informed as to the status of the case or to explain matters sufficiently to allow the client to make informed decisions. On or about June 27, 2001, the criminal trial court discharged respondent as counsel due to respondent's failure to properly communicate and represent his client.

Nature of Violations: The Florida Bar File No. 2002-70,883(11F) involves the following rule violation: Rule 4-1.4 communication, of the Rules Regulating The Florida Bar.

Mitigating Factors: 9.32(b) absence of a dishonest or selfish motive

Aggravating Factors: 9.22(a) prior disciplinary offenses; and(i) substantial experience in the practice of law.

Client Prejudiced: Yes. Client's case was delayed while he was incarcerated.

Client's Security Fund Exposure: No.

Discipline Received in Similar Cases: The Florida Bar v. Whitaker, 596 So.2d 672 (Fla. 1992), an attorney received a public reprimand as the result of his neglect of a client matter.

Discipline Indicated by Standards for Imposing Lawyer Sanctions: 4.4 Lack of Diligence4.43 Public reprimand is appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client.

RECOMMENDATIONS


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Bar Counsel's Recommendation to Referee: N/AReferee's Proposed or Recommended Discipline: N/ABar Counsel's Recommendation to Board: Approve the consent judgment.




For:____________Against: ____________

Glossary

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Disciplinary Revocations

# AGENDA ITEM

BOG Meeting:

The Florida Bar v. «RespFN» «RespMN» «RespLN»The Florida Bar File No. «RespBarNo»Supreme Court Case No. «SCtCaseNo»Petition for Disciplinary Revocation

Age: Date of Admission: «RespDateAdmit»Current Bar Status: «RespStatus»Location of Practice: Law Firm: Certified Area(s) of Practice: «RespCert» Prior Discipline: Other Pending Discipline Cases: Designated Reviewer: «DRConcatName»Chief Branch Discipline Counsel: Trial Counsel: «TFBAtty»Respondent's Counsel: pro seComplainant: «CompFN» «CompMN» «CompLN»Referee: N/A

SUMMARY

Narrative Summary:

Nature of Violations: N/A

Mitigating Factors: N/A

Aggravating Factors: N/A

Client Prejudiced: N/A

Clients' Security Fund Exposure:

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The Rice Rule [does/not] apply because the underlying matter [does/not] involve Client Security Fund exposure due to trust account misappropriation. (Optional, use if Rice Rule applies: Respondent has provided a current financial affidavit, has agreed to an audit of his/her trust account to be performed ________ and has agreed to keep a current address on file with The Florida Bar for a period of 2 years following acceptance of the resignation.)

Discipline Received in Similar Cases:

Discipline Indicated by Standards for Imposing Lawyer Sanctions: N/A

RECOMMENDATIONS

Grievance Committee: N/A

Trial Recommendations:Bar Counsel's Recommendation to Referee: N/AReferee's Proposed or Recommended Discipline: N/ABar Counsel's Recommendation to Board:

Designated Reviewer:

Prior Board Action and Date:


For: ____________ Against: ____________

Glossary

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Designated Reviewer Review of Grievance Committee Finding

# DR Review of Grievance Committee Finding

AGENDA ITEM


The Florida Bar v. Gene F. ReibmanThe Florida Bar File No. 2003-50,733(17G)Supreme Court Case No. Not Yet AssignedDesignated Reviewer Requesting Review of Probable Cause Finding

Age: 59Date of Admission: December 11, 1979Current Bar Status: Member in Good StandingLocation of Practice: Fort Lauderdale, Florida Law Firm: Sole Practitioner Certified Area(s) of Practice: NoneOther Pending Disciplinary Cases: NoneDesignated Reviewer: Nancy Wood GregoireChief Branch Disciplinary Counsel: Eric Montel TurnerTrial Counsel: Michael David SoiferRespondent's Counsel: Richard Lawrence Rosenbaum and Kevin P. TynanComplainant: Henry Jude MankaReferee: N/A

SUMMARY

Narrative Summary: Complainant was convicted of attempted second degree murder and aggravated battery. The convictions were affirmed on appeal. [Manka vs. State, 720 So.2d 1109 (Fla. 4th D.C.A. 1998)]. Thereafter, complainant filed a motion for post conviction relief alleging ineffective assistance of counsel, which was denied. Respondent was appointed by the Judge as a special public defender to represent complainant in an appeal of the denial of his post conviction motion. Respondent states that in December of 2001, when the initial brief was due, he was temporarily without a secretary and in the midst of preparing for a major federal

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trial, and further, the filing due date of the brief had been incorrectly entered into his tickler system. On December 19, 2001, the 4th D.C.A. dismissed the appeal sua sponte due to respondents failure to file the initial brief. Respondent was unaware the appeal had been dismissed and attempted to file the brief on January 9, 2002, sending a copy to complainant.

On October 28, 2002, after complainant wrote to respondent requesting the status of his case, respondent wrote complainant a letter informing him of the dismissal.

Nature of Violations: 4-1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.; 4-1.3 A lawyer shall act with reasonable diligence and promptness in representing a client.

Mitigating Factors: 9.32(a) absence of prior disciplinary record; (b) absence of dishonest or selfish motive; (e) full and free disclosure to disciplinary board or cooperative attitude toward the proceeding; (g) character or reputation; and(l) remorse.

Aggravating Factors: 9.22(i) substantial experience in the practice of law.

Client Prejudice: Yes, complainant lost his opportunity to appeal.

Clients' Security Fund Exposure: No.

Discipline Received in Similar Reported Cases:The Florida Bar vs. Neely, 417 So.2d 957 (Fla. 1982), an attorney received a public reprimand with 1 year probation for failure to prosecute an appeal.

The Florida Bar vs. Dingle, 220 So.2d 9 (Fla. 1969), an attorney received a public reprimand for failure to file notice of appeal in criminal case after telling client of intention to do so.

The Florida Bar In re W. Paul Thompson, 328 So.2d 196 (Fla. 1976), an attorney received 1 year probation for failing to timely appeal and suffering dismissal

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thereof, failing to answer requests by client for information and documents, and representing both parties to the same transaction without their express consent.

The Florida Bar v. Laura R. Morrison, 496 So.2d 820 (Fla. 1986), an attorney received 10 days suspension for failure to timely file appellate brief in criminal appeal resulting in appointment of federal public defender to represent client.

Discipline Indicated by Standards for Imposing Lawyer Sanctions:4.4 Lack of Diligence4.43 Public reprimand is appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.

4.44 Admonishment is appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client.

4.5 Lack of Competence4.53 Public reprimand is appropriate when a lawyer demonstrates a failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or is negligent in determining whether the lawyer is competent to handle a legal matter and causes injury or potential injury to a client.

4.54 Admonishment is appropriate when a lawyer engages in an isolated instance of negligence in determining whether the lawyer is competent to handle a legal matter, and causes little or no injury to a client.

RECOMMENDATIONS



Bar Counsel's Recommendation to Referee: N/AReferee's Proposed or Recommended Discipline: N/ABar Counsel's Recommendation to Board: Do not oppose the Designated

Reviewer's recommendation. It should also be noted that bar counsel received an Admission of Minor Misconduct from respondent through his co-counsel Kevin P. Tynan, Esq., on July 23, 2003.

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Designated Reviewer: The designated reviewer disagrees with the grievance committee's finding of probable cause in this matter. Although the designated reviewer agrees that respondent's conduct warrants redress, it is believed that this was an isolated mistake by the respondent who has an exemplary professional history and reputation. With due consideration given to the mitigating factors in this case, it is recommended that diversion conditioned upon successful completion of LOMAS and 15 credits of Continuing Legal Education Seminars in the area of appellate practice would be sufficient.



For:___________ Against:____________

Glossary

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Petition for Placement on Inactive Status

# Petition for Placement on Inactive Status

AGENDA ITEM


The Florida Bar v. Beth Ann CeCeliaThe Florida Bar File No. 2003-71,613 (11B) (MDS)Supreme Court Case No. Not Yet AssignedPetition for Placement on the Inactive List

Age: 40Date of Admission: October 20, 1987Current Bar Status: Member in Good StandingLocation of Practice: Miami, FloridaLaw Firm: Sole PractitionerCertified Area(s) of Practice: NonePrior Discipline: NoneOther Pending Discipline Cases: NoneDesignated Reviewer: Jennifer Rae CoberlyChief Branch Disciplinary Counsel: Arlene Kalish SankelTrial Counsel: Randi Klayman LazarusRespondent's Counsel: pro seComplainant: The Florida BarReferee: N/A

SUMMARY

Narrative Summary: Respondent has submitted a petition for placement on the inactive list as the result of her extensive struggle with alcoholism. Respondent was arrested last year and charged criminally after a physical altercation with her landlord. The charges were dismissed after respondent successfully completed all required programs. Respondent's bizarre behavior is attributable to her issues with alcohol.

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Nature of Violations: N/A

Mitigating Factors: N/A

Aggravating Factors: N/A Client Prejudiced: No

Client's Security Fund Exposure: No

Discipline Received in Similar Cases: N/A Discipline Indicated by Florida Standards for Imposing Lawyer Sanctions: N/A

RECOMMENDATIONS

Grievance Committee: N/A


Bar Counsel's Recommendation to Referee: N/AReferees Proposed or Recommended Discipline: N/ABar Counsel's Recommendation to Board: Do not oppose the Petition for

Placement on the Inactive List.




For:____________Against: ____________

Glossary

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Abeyances

Prepared by trial counsel

The general agenda item form, preceding this portion of agenda item instructions, is used when a request to abate or defer a disciplinary case is to be considered by the board. [Rule 3-4.4 and 3-7.4(e)]

Glossary

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Reinstatements (Non-Discipline Related)

Prepared by headquarters (delinquency)

In those cases where reinstatement for dues delinquency is sought, all back dues and late fees must be paid and a petition for reinstatement (form available from membership records) filed with the board.

Delinquency under 3 years: Headquarters staff merely lists the names of all persons so situated and the board's reinstatement is ministerial only.

Delinquency over 3 years: Headquarters agendas these cases in the following format:

Petitioner: (name)Address: (record bar address and address provided)Date of Admission: (date admitted to The Florida Bar)Date of Delinquency: (when first continuing delinquency occurred)Delinquent Dues: (include late fees and note if paid)Reason for Delinquency: (the explanation offered is summarized)Current Bar Membership: (all jurisdictions known to The Florida

Bar)Prior Discipline Before The Florida Bar: (any disciplinary action

taken) Criminal and Disciplinary Charges Since Delinquency: (any such

pending or concluded charges are summarized together with dispositions)

Current Employment: (whether law related or not)Employment Since Delinquency: (all employment is to be reflected)Summary: (factual and explanation synopsis)Prior Board Action and Date: (if delinquency was previously

considered)

Glossary

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Cost Payment Plans

Prepared by headquarters

These cases are agendaed, by headquarters staff, only for cost payments that will exceed one year from the date costs were assessed, in the following format:

The Florida Bar v. (respondent's name)Discipline Imposed: (type of discipline imposed by order assessing costs)Date of Discipline: (date of court order)Costs Assessed: (amount)Proposed Monthly Payment: (amount - reflect amount already paid, if applicable)Recommendation: (approval or denial)

NOTE: A financial affidavit must be attached to this item.

Glossary

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Waiver of Rule 3-7.11(h)(3)

These types of agenda items may be drafted by headquarters or trial counsel as follows:

PETITION FOR WAIVER

TO: All members of the Board of GovernorsFROM: (Trial counsel or headquarters counsel)RE: Petition of (attorney's name) for waiver of rule 3-7.11(h)(3) of the Rules Regulating

The Florida Bar

Representation of (respondent's name)TFB Case No.

____________________________________________________

FACTS

(Summary, Nature of Disciplinary Case)

APPLICABLE RULE PROVISIONS

(Quote Rule 3-7.11(h)(3))

ISSUE

Whether (counsel's name) should be permitted to (represent/continue representing) the respondent in (type of case) when (counsel's name) is a partner, association, member, bar counsel, former bar counsel or is "of counsel" to a (board member or grievance committee member).

Recommendation:Trial Counsel: (waive or not waive the rule)Designated Reviewer: (concurs or disagrees with trial counsel)

Glossary

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Appointment of Grievance Committee Members


Authority to appoint grievance committee members is vested in the board of governors. The board has delegated authority to the designated reviewers to appoint members between board meetings. Such appointments are agendaed for board ratification.

Glossary

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Appointment of Outside Bar Counsel


Pursuant to the appropriate board policy, appointment of outside bar counsel, is presented to the board for ratification or approval.

Glossary

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Executive Committee Action

Prepared by trial counsel

The executive committee of the board of governors is authorized to act for the board when time requirements of the Rules Regulating The Florida Bar do not allow for referral of a disciplinary matter to the full board. Rule 3-3.2(c). Additionally, bar policy has been promulgated to ensure fair and prompt handling of reinstatement cases wherein the report of referee recommends reinstatement, the bar has no evidence on which to oppose that recommendation, and trial counsel, staff counsel and the designated reviewer do not oppose the recommendation of reinstatement. Standing Board Policy 15.30(b).

In all other circumstances, the use of the executive committee requires the affirmative approval of headquarters staff. Either the director of lawyer regulation or staff counsel must be consulted.

A cover memorandum substantially styled as on the following page must be utilized. The reason executive committee action is required, and the specific action requested (or options in that respect), how and to whom to return the votes is to be stated in the cover memorandum. An agenda item of the same style, type and content as used for board review shall be attached to the cover memorandum and shall contain the information on which the executive committee is to determine action.

A majority of the executive committee is necessary to authorize any particular action. The committee is comprised of 11 board members, therefore, 6 are needed for authority to act. After the committee has voted, the "Notice of Executive Committee Action" is to be prepared (a copy of the agenda item should be attached), forwarded to headquarters for information and placement on the next agenda of the board of governors. Bar counsel shall notify the Supreme Court of Florida, via letter, and provide a copy to John F. Harkness, Jr., Executive Director and Rosalyn Scott, Assistant to the President.

Glossary

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Example Executive Committee Memorandum (ROR and Reinstatement)

(Prepared on TFB letterhead)

EXECUTIVE COMMITTEE MEMORANDUM

TO: EXECUTIVE COMMITTEE MEMBERS

FROM: «TFBAtty», Bar Counsel, Branch Office

CC: John F. Harkness, Jr.; John Berry; Kenneth Lawrence Marvin; Rosalyn Scott, all with attachments

RE: The Florida Bar v. «RespFN» «RespMN» «RespLN» «RespSuffix»; Supreme Court Case No(s).«SCtCaseNo»; TFB File No(s). «BarFileNo»

_____________________________________________________________________

Report of Referee

This memorandum refers for your consideration a report of referee filed by the referee on . Pursuant to Rule 3-7.7(c)(1), the bar has 60 days from the filing of the report in which to respond. Our response is due to be filed on .

The next meeting of the board of governors is subsequent to the filing deadline and we need authority to take a position concerning the report.

Bar counsel requests that the committee the report of referee that recommends .

The designated reviewer, «DRFN» «DRMN» «DRLN», has recommended of bar counsel's proposal.

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Your vote is needed by .

Please e-mail your vote to «TFBAtty» at , or to , secretary at .

Please indicate your vote:

1. Vote to seek review of the Report of Referee; _______2. Vote not to seek review of the Report of Referee; _______3. Want a conference call to discuss the Report of Referee. _______

EXECUTIVE COMMITTEE MEMORANDUM

TO: EXECUTIVE COMMITTEE MEMBERS

FROM: «TFBAtty», «TFBAttyTitle», Branch Office

CC: John F. Harkness, Jr.; John Berry; Kenneth Lawrence Marvin; Rosalyn Scott, all with attachments

RE: The Florida Bar v. «RespFN» «RespMN» «RespLN» «RespSuffix»; Supreme Court Case No(s). «SCtCaseNo»; TFB File No(s). «BarFileNo»

_____________________________________________________________________

Petition for Reinstatement

This memorandum refers for your consideration a report of referee filed by the referee on which recommends that the respondent be reinstated to the practice of law.

Pursuant to Standing Board Policy 15.30(b), this matter is referred to the executive

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committee because there was no evidence adduced in opposition to reinstatement, none has since come to our attention, and all interested persons (bar counsel, staff counsel, designated reviewer and referee) all recommend reinstatement. In such situations, the board has recognized that it is not fair to a respondent to delay the reinstatement of a member of the bar merely for full board review and has adopted this policy.

Bar counsel requests that the committee the report of referee.

The designated reviewer, «DRFN» «DRMN» «DRLN» , has recommended of bar counsel's proposal.

Your vote is needed by .

Please e-mail your vote to «TFBAtty» at , or to secretary, at .

1. Vote to seek review of the Report of Referee; _______2. Vote not to seek review of the Report of Referee; _______3. Want a conference call to discuss the Report of Referee. _______

Glossary

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Example Notice of Executive Committee Action

# Notice of Executive Committee Action (Not on TFB letterhead)


NOTICE OF EXECUTIVE COMMITTEE ACTION

The Florida Bar v. Carmen Gilda DillThe Florida Bar File No. 1998-11,568(06A)(HRS)Supreme Court Case No. SC93-173Petition for Disciplinary Revocation with Leave to Reapply After 5 Years

Narrative Summary: Carmen Gilda Dill filed a petition for disciplinary resignation in light of four pending referee matters. The petition for resignation is with leave to reapply after 5 years. The matter was presented to the Executive Committee in order to comply with the 60-day response time for the Bar to respond to the Court.

RECOMMENDATIONS TO EXECUTIVE COMMITTEE:

Bar Counsel: Do not oppose the petition for disciplinary revocation.

Designated Reviewer: Morris Silberman concurs with bar counsel's recommendation.

OUTCOME OF VOTE: 11 for; 0 opposed

Glossary

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Transmittal Letter to The Florida Supreme Court

(To be Prepared on Letterhead)

The Honorable Thomas D. Hall, ClerkSupreme Court of FloridaSupreme Court BuildingTallahassee, FL 32399

Re: The Florida Bar v. ; Case No. TFB File No.

Dear Mr. Hall:

The in the above-referenced case was served on or about , and was considered by the Executive Committee of The Florida Bar on .

The Bar (will or will not) file a notice of intent to seek review of the report of referee in this matter.

Sincerely,

Bar Counsel

cc: Kenneth Lawrence Marvin, Staff Counsel

Glossary

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ADMINISTRATION OF ADMONISHMENTS AND PUBLIC REPRIMANDS

Administration of Admonishments and Public Reprimands

Admonishments and public reprimands may be administered by a variety of methods, depending upon the type of sanction (admonishment or public reprimand) and the disciplinary agency imposing same (grievance committee, board of governors, or supreme court). Below is the Standing Board Policy on administration of Public Reprimands:

15.92 Administration of Public Reprimands

(a) Authority. The Rules Regulating The Florida Bar (RRTFB) allow administration of public reprimands by personal appearance before the board of governors where necessary, in addition to publication in the Southern Reporter.

(b) Administration by Personal Appearance Before Board of Governors in Special Circumstances, Authority.

(1) General Policy . It is the policy of the bar that all public reprimands should be timely administered by public written order of the Supreme Court of Florida, published in the Southern Reporter. Notice of the public reprimand should further be published in the Florida Bar News and on The Florida Bar’s official website.

(2) Special Circumstances Making Additional Measures Necessary . There are situations in which a respondent’s personal appearance before the board of governors to receive a public reprimand may be appropriate.

(c) Instructions to Bar Counsel and Designated Reviewers. Bar counsel shall request referees to recommend and the court to order the administration of all public reprimands by public written order of the Supreme Court of Florida, published in the Southern Reporter, unless timely personal appearance before the board of governors is appropriate. "Timely" appearance is defined in subdivision (f) below.

(d) Consultation and Factors to Be Considered When Recommending Personal Appearance for a Public Reprimand. Bar counsel shall consult with the chief branch discipline counsel and staff counsel to determine the recommendation of bar staff. The designated reviewer, with input from staff counsel, shall then determine whether the proposed public reprimand before the board of governors shall proceed.

When evaluating a case to determine whether a personal appearance by the respondent before the board of governors for a public reprimand is appropriate, in addition to the publication of the written reprimand set forth in chapter 3 and elsewhere in this policy, staff counsel and the designated reviewer should consider factors including, but not limited to:

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(1) the severity of the misconduct, particularly whether the misconduct involved significant harm to members of the public or the judicial system, and whether any harm to the public or to the administration of justice by the respondent remains unresolved;

(2) the disciplinary history of the respondent, particularly a pattern of the same type of harmful misconduct;

(3) whether the respondent shows remorse and has tried to rectify the harm inflicted by the respondent’s actions;

(4) the health and any other extenuating circumstances of the respondent;

(5) the geographical location of the respondent, including an analysis of where the misconduct occurred (within Florida or elsewhere).

(e) Alternative Method of Administration. If staff counsel and the designated reviewer agree that a personal appearance before the board of governors is appropriate, the time for administration of the public reprimand shall be designated as set forth elsewhere in this policy.

(f) Timely Appearances for Public Reprimands Appropriate for Administration Before the Board of Governors. When it is determined under subdivision (d) of this policy that a public reprimand should be administered before the board of governors, the public reprimand shall be scheduled at 1 of the next 3 meetings of the board of governors that follow the date on which the order imposing the public reprimand becomes final.

(g) Notice and Scheduling; Discretion.

(1) Notice. When an order or opinion is entered imposing the requirement of an appearance before the board of governors, staff counsel shall give notice to the respondent or respondent's counsel and the complainant or complainant's counsel of the dates and locations of the next 3 meetings of the board of governors. Notice shall include instructions that:

(A) the administration is scheduled for the first meeting on the list, then the second and then the third;

(B) the respondent must confirm intent to appear at a meeting;

(C) unconfirmed appearances will not be allowed;

(D) the respondent is not required to appear at a meeting that is out of state or, in the opinion of staff counsel, too difficult to reach. Such meetings will not be counted as 1 of the next 3 meetings of the board;

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(E) the bar has the discretion to not schedule reprimands or limit the number of reprimands at a meeting of the board; and

(F) failure to appear as required under the rule and this policy, without good cause (as determined by staff counsel), may result in a proceeding for contempt and further disciplinary sanctions.

(2) Scheduling . Staff counsel shall schedule administration of the reprimand at the first meeting of the board of governors that follows the date on which the order imposing the public reprimand becomes final. If the reprimand is not administered at the first meeting, administration shall be scheduled for the second meeting of the board. If the reprimand is not administered at the second board meeting, the respondent shall be scheduled for administration of the reprimand at the third meeting.

(3) Discretion to Schedule . When scheduling an appearance for administration of a public reprimand, staff counsel shall have discretion to not require an appearance at a meeting of the board that is too difficult to reasonably require attendance and may limit the number of reprimands to be administered any meeting of the board because of other time commitments.

(h) Action on Failure to Appear. If the respondent does not appear at any of these meetings, staff counsel shall determine if good cause for the non-appearance exists and, if none is found, shall seek an order of the court imposing a judgment of contempt and imposing further disciplinary sanctions.

© The Florida Bar - <<YEAR>> - Version <<VERSION>>

Glossary

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Admonishments

If grievance committee or board of governors imposed: service with and inclusion in the report of minor misconduct letter from the chair of the grievance committee;letter from the bar president;

appearance before the grievance committee; orappearance before the board of governors.

If court imposed:letter from the bar president;appearance before the court;appearance before the referee;appearance before the board of governors; orappearance before the grievance committee.

Glossary

- 191 -


Public Reprimands

publication in Southern Reporter only (Note: all public reprimands are so reported);appearance before the supreme court;appearance before the referee;appearance before a designated judge; orappearance before the board of governors.

Bar counsel is responsible for preparing and/or scheduling the following:an admonishment served with and included in a report of minor misconduct;admonishments and public reprimands by letter from the grievance committee chair (bar counsel should offer assistance); andadmonishments and public reprimands by letter from the referee (bar counsel should offer assistance)

Glossary

- 192 -


Bar Counsel's Responsibility

Bar counsel is responsible for preparing and/or scheduling the following:

>an admonishment served with and included in a report of minor misconduct;>admonishments and public reprimands by letter from the grievance committee chair (bar counsel should offer assistance); and>admonishments and public reprimands by letter from the referee (bar counsel should offer assistance)

Glossary

- 193 -


Headquarters' Responsibility

The headquarters office is responsible for preparing and/or scheduling the following:admonishments by letter from the president of the bar; andadmonishments and public reprimands by personal appearance before the board of governors.

When an admonishment is to be administered by letter from the president of the bar, the admonishment is prepared and forwarded to the president for approval. When an admonishment or public reprimand is to be administered by personal appearance before the board of governors, the respondent is initially scheduled to appear at the next available board meeting (usually no longer that two months away, except when the next meeting is held out-of-state or in Key West due to transportation costs and scheduling difficulties).

Approximately four weeks before the schedules date, respondent (or counsel for respondent) will receive a letter from headquarters advising of the date of respondent's scheduled appearance. Respondent must respond to the scheduling letter before the deadline for responding either by confirming appearance at the meeting or advising of a valid, existing conflict.

It is currently the policy of the board of governors that a respondent may reschedule twice for valid, existing conflicts (Key West and out-of-state meetings are not mandatory and do not count if respondent cannot attend). If respondent does not respond to the scheduling letter, respondent's appearance at the upcoming meeting will not be allowed and respondent will be scheduled for a mandatory appearance at the next available meeting.

Glossary

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Sample Language

Advertising

M , the public's education about legal services can be fulfilled in part through advertising that provides the public with useful, factual information. However, as both the bar and the public recognize, attorney advertising involves the potential for serious abuse. Failure to adhere strictly to rules regulating attorney advertising undermines confidence in the legal system and fosters distrust of attorneys.

Best Interests of Client (#1)

M , when a lawyer is hired by a client, the lawyer is bound to represent the best interests of that client. You should have known that the actions that you undertook would be contrary to your client’s best interests. When a lawyer fails to represent the best interests of a client, the lawyer breaches the trust reposed by the client resulting in a diminution of trust within that individual attorney/client relationship and in the profession in general.

Best Interests of Client (#2)

M , when a lawyer is hired by a client, the lawyer is bound to represent the best interests of that client. It is your responsibility to be aware of other actions that may hinder the interests of your client in the matter for which you have been retained. When it is within your power to prevent such actions, you are required to do so. When a lawyer fails to represent the best interests of a client, the lawyer breaches the trust reposed by the client resulting in a diminution of trust within that individual attorney/client relationship and in the profession as a whole.

Business Transaction With Client (#1 - Loan)

M , lawyers must avoid business transactions with clients, even charitable loans. The potential for harm to the client who enters into a business transaction with someone who exerts a strong influence over them is substantial. A business transaction between lawyer and client has the ability to breach not only the trust reposed by the client resulting in a diminution of trust within that individual attorney/client relationship, but in the profession as a whole.

Business Transaction With Client (#2 - Sale)

M , lawyers must avoid business transactions with clients when the client does not seek independent counsel regarding the transactions. The potential for harm to the client who enters into a business transaction with someone who exerts a strong influence over them is imminent. A business transaction between lawyer and client has the ability to breach not only the trust reposed by the client resulting in a diminution of trust within that individual attorney/client relationship, but in the profession as well.

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Candor Toward Tribunal: Lack of (Sham Pleading)

M , the privilege of practicing law requires with it a multitude of ethical responsibilities among those responsibilities is the obligation to have a credible evidentiary basis before you seek action by the court. No extent of zealousness can excuse or condone such conduct. No client's goal in any proceeding justifies a lack of candor or any degree of accusation based on suspicion or conjecture. While it may be admirable that you zealously represented your client, proper advocacy can never be deemed to include making accusations without arguable basis. By acting in the manner in which you did, you have added to the public perception that attorneys are "hired guns" who will say or do anything to advance a client's cause, without any regard for truth or justice. This perception undermines the very foundation of our legal system and makes your behavior particularly troubling. As an officer of the court, it is incumbent upon you to act in a professional manner at all times, with total candor and honesty and never seek relief from the court unless you have the requisite proof to sustain you allegations.

Communication With Client (#1)

M , within an attorney/client relationship, the attorney has the duty to present all relevant information to the client so that the client may reach a fully informed decision and thereby pursue legal rights in the most effective manner. When the attorney and client contract for representation, it is the absolute responsibility of the lawyer to make sure that the representation is fully explained to and agreed upon so that misunderstandings cannot occur. Communication must be full and complete. This trust and candid disclosure is the bedrock of the attorney and client relationship.


M , within an attorney client relationship, the attorney has the duty to present all relevant information to the client so that the client may reach a fully informed decision and thereby pursue legal rights in the most effective manner. When an attorney fails to respond to requests by the client for information regarding the representation, not only is the trust reposed by the client breached resulting in a diminution of trust within that individual attorney/client relationship, but a diminution for trust for the profession in general.


M , when a lawyer is hired by a client, the lawyer is bound to keep the client informed of the status of the matter and to represent the client. However, a lawyer must not engage in representation when it will result in a violation of the Rules of Professional Conduct. It is the responsibility of a lawyer to take appropriate steps to protect the best interests of the client upon termination of representation. When a lawyer fails to abide by these standards, the lawyer breaches the trust reposed by the client resulting in a diminution of trust within that individual attorney/client relationship and for the profession in general.

Conflict

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M , the lynch-pin of the attorney/client relationship is trust. In order for the lawyer to function as effectively as intended, the client must place ultimate and complete trust in the lawyer and be assured that the lawyer will represent the interests of the client to the exclusion of the interests of others, including other clients and the attorney. When a lawyer breaches that trust by engaging in conflicting representations, the lawyer does more than destroy the individual attorney/client relationship. The client who has lost faith in and trust of the lawyer, not only mistrusts that individual lawyer but the profession in general. This diminution of respect for the profession does a disservice to the public.

Contempt of Court

M , the lawyer's role in the legal process is one designed to facilitate the discovery and presentation of truth so that justice may be served. That role also requires lawyers to have the utmost respect for the judicial process and to avoid participation in the perversion of that process. Contempt of court by its very nature perverts the search for truth. Lawyers should avoid allowing clients and other participants to be in contempt and must never personally engage in contemptuous conduct.

Court Order/Disregard For

M , the lawyer's role in the legal process is one designed to facilitate the discovery and presentation of truth so that justice may be served. That role also requires lawyers to have the utmost respect for the judicial process and to avoid participation in the perversion of that process. Wilfully disregarding an order of the court by its very nature perverts the search for truth. Lawyers should avoid allowing clients and other participants from disregarding court orders and must never personally engage in such disregard.

Criminal Offense

M , lawyers, as officers of the court, are sworn to uphold the letter of the law. Commission of a crime, without regard to its seriousness, is contrary to the lawyer's role as an officer of the court. A lawyer who commits a criminal offense does more than sully the lawyer's personal reputation. That lawyer demeans the legal profession and erodes its ability to function as intended within the legal system.

Excessive Fee

M , an attorney should never collect a fee that is clearly excessive. When an attorney collects an excessive fee, the trust reposed by the client is breached resulting in a diminution of trust within not only that individual attorney/client relationship, but for the profession in general.

False Documents

M , lawyers, as officers of the court, are sworn to uphold the letter of the law. Filing documents which are false is contrary to the lawyer's role as an officer of the court. The lawyer who files false documents does more than sully the lawyer's personal reputation. That lawyer

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demeans the legal profession and erodes its ability to function as intended within the legal system.

False Statements to Unrepresented Party

M , lawyers, as officers of the court, are sworn to uphold the letter of the law. Making false statements to a third party is contrary to the lawyer's roles as an officer of the court. A lawyer should not proceed in an action on behalf of his client with an unrepresented party whose interests the lawyer represents. The lawyer who makes false statements and misleads an unrepresented party does more than sully the lawyer's personal reputation. That lawyer demeans the legal profession and erodes its ability to function as intended within the legal system.

Income Tax Returns: Failure to File

M , lawyers, as officers of the court, are sworn to uphold the letter of the law. Failure to abide by the Internal Revenue Code, without regard to its seriousness, is contrary to the lawyer's role as an officer of the court. A lawyer who fails to file federal income tax returns does more than sully the lawyer's personal reputation. That lawyer demeans the legal profession and erodes its ability to function as intended within the legal system.

Misrepresentation

M , lawyers, as officers of the court, are sworn to uphold the honesty and integrity of the judicial process. Misrepresentations, regardless of the harm caused, violate the lawyer's duty to the court and undermine the administration of justice. Dishonest conduct does more than soil a lawyer's personal reputation. It demeans the legal profession as a whole and erodes its ability to function as intended within the legal system.

Nonlawyer Personnel: Supervision of

M , in order for an attorney-client relationship to proceed as it should, the lawyer must properly supervise non-lawyer employees. Failure to do so not only reflects adversely on the lawyer, but also can have devastating consequences for clients.

Perform Services: Failure to

M , when a lawyer is hired to perform legal services of a particular type more than a contractual obligation is created. The client relies on the lawyer's word and must place ultimate trust in that relationship. When a lawyer fails to follow through in the rendition of the legal services, the lawyer does more than breach that civil contract. The lawyer also breaches the trust reposed by the client resulting in a diminution of trust within that individual attorney/client relationship and for the profession in general.

Personal Conduct Offensive to Client

M , the lynch-pin of the attorney/client relationship is trust. In order for the lawyer to

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function as effectively as intended, the client must place ultimate and complete trust in the lawyer. When a lawyer breaches that trust by engaging in conduct toward the client that the client deems offensive, the lawyer does more than destroy the individual attorney/client relationship. The client who has lost faith in and trust of the lawyer, not only mistrusts that individual lawyer but the profession in general. This dimunition of respect for the profession does a disservice to the public.

Protection of Fee

M , historically a lawyer's word has been a bond on which ultimate reliance could be placed. Giving your word to protect the fee of a professional and then allowing your client to unilaterally abrogate your word does more harm than just causing that professional to mistrust you. Failure to honor your word results in individual and public mistrust of lawyers in general and thereby erodes the ability of our profession to function as it should as a officer of the court in the search for truth and the administrative of justice.

Glossary

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DIVERSION HANDBOOK

Diversion Handbook

PRACTICE ANDPROFESSIONALISM ENHANCEMENT PROGRAMS

PurposeOn October 20, 1994, the Supreme Court of Florida issued an order creating a program of diverting disciplinary cases to practice and professionalism enhancement programs as an alternative to existing sanctions. These programs are intended to provide educational opportunities to members of The Florida Bar for enhancing skills and avoiding future misconduct allegations.

The program is designed to identify lawyers who are beginning to have problems with the management of their practices as evidenced by minor disciplinary complaints. The lawyers are then provided skills, training or professionalism enhancement, thereby averting serious matters of misconduct and significantly reducing the likelihood of repeat offenders.

Glossary

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DIVERSION HANDBOOK

Eligible Cases

The rule specifies that only those disciplinary cases that would otherwise 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. 3-5.3(b).

Glossary

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DIVERSION HANDBOOK

Eligible Respondents (7 Year Rule)

A respondent who has been the subject of a prior diversion within 7 years is not eligible. 3-5.3(c).

Glossary

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DIVERSION HANDBOOK

Practice and Professionalism Enhancement Programs

Trust Accounting Workshop

This workshop is devoted to teaching the basics necessary for attorneys to properly account for their clients’ money. It will explain the rules governing client trust accounting duties, the concepts behind client trust accounting, and a simple step-by-step system for accounting for clients’ money.

This workshop is a one-half day program that is provided in varying geographic locations around the state. Usually, this workshop is presented the day before, or after, an ethics school or other diversion workshop.

Ethics School

The ethics school is a one-day program presented at various geographic locations within the state. The program presents practical tips concerning the following areas:

IntroductionOverview of The Florida Bar & Disciplinary SystemFormation of Attorney-Client RelationshipDuties During Representation/TerminationTrust AccountingChemical Dependency/Stress ManagementAdvertisingAttorney’s FeesClient RelationsProfessionalismClosing Remarks, Question & Answer, and Examination

Professionalism Workshop

The general purpose of this program is to demonstrate that complying with minimum, legal, ethical, and procedural standards does not make one professional. Professionalism is largely a matter of attitude, and discussion of the attitudes and values held by modern lawyers is essential if we are to resolve some of the critical issues facing the profession. The problems presented in this program are designed to give the participants and the facilitators the opportunity for an honest dialogue about difficult decisions lawyers make every day. In the end, the program should help each individual involved to decide what it means to call oneself professional.

Advertising Workshop

This workshop is devoted to teaching the basics necessary for attorneys to develop advertisements that comply with court rules governing lawyer advertising. A Handbook on

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Lawyer Advertising and Solicitation is provided and includes, among other things, an overview of applicable regulations broken down by the type of advertisement to which they apply; a reproduction of all rules that regulate lawyer advertising; answers to frequently asked questions about attorney advertisingregulation; a Quick Reference Checklist for attorney advertisers; a summary of selected decisions of the Standing Committee on Advertising; examples of complying and noncompliant advertisements and direct mail communications; and an overview of proposed amendments to the rules.

Law Office Management Assistance Service (LOMAS)

This program is provided by The Florida Bar and offers lawyers an opportunity to have on-site evaluations of law office procedures, equipment, staffing, business practices and trust accounting procedures. The service is provided on a fee basis that includes travel expenses. A professional staff with a national reputation conducts an onsite review and evaluation of the law office.

The respondent is required to cooperate with LOMAS. The respondent shall fully comply with and implement, at the respondent’s cost, all recommendations made by LOMAS, which recommendations shall be in accordance with the office procedures and record keeping guidelines of LOMAS.

Because of scheduling considerations, the language of agreements in which diversion to LOMAS is agreed shall contain the following language:

Respondent shall contact staff of the LOMAS program within 30 days of the date that this diversion recommendation becomes final. In addition, the respondent shall schedule the initial review required by this recommendation within 60 days of that date. Failure of the respondent to contact LOMAS or schedule the initial review within these stated times shall constitute failure to fully comply with this diversion recommendation and may result in the of the disciplinary file to the grievance committee or bar staff for further proceedings under the Rules Regulating The Florida Bar.

The LOMAS analysis shall consist of an initial review (within 60 days of acceptance of diversion if the LOMAS schedule will accommodate) and any additional interview or review as LOMAS may, in its sole discretion, deem necessary or advisable. The respondent shall pay all fees and expenses of LOMAS incurred or required in connection with the conduct of its analysis. LOMAS shall provide headquarters office of the lawyer regulation department with status reports as to analysis accomplished by agreement to diversion.

Florida Lawyers Assistance, Inc. (FLA, Inc.)

FLA is an independent organization that works closely with the bar, the board of bar examiners, and the court and provides direct counseling and referral for treatment of members of the bar who are suffering from chemical or alcoholic dependency and/or mental health issues.

Diversion to FLA is appropriate in cases in which evidence of alcohol or other chemical

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dependency is present or issues of depression or other mental health considerations are apparent contributors to the alleged misconduct. Counseling and services provided by FLA are usually confidential (3-7.1(o)), however, a referral to FLA by diversion agreement will authorize and require FLA to provide appropriate monthly status reports concerning the respondent’s compliance with the requirements of FLA.

The respondent will participate actively in the program offered by FLA by signing a rehabilitation contract and complying with the terms of such contract. Rehabilitation shall, in appropriate cases, include weekly attendance at AA/NA meetings, monthly meetings with a FLA monitor and random blood testing and urinalysis on the frequency stated in the contract.

The respondent will pay a registration fee required by FLA and a monthly monitoring fee to The Florida Bar. All monthly monitoring fees must be remitted no later than 5 days from the end of each respective month in which the fee is due. All fees must be paid to bar headquarters office in Tallahassee.

Compliance with the conditions required by FLA is monitored by the headquarters staff of the office of lawyer regulation.

Stress Management Workshop

This workshop is taught by staff of FLA, Inc. and usually consists of small classes of 3 or 4 students. The students participate in open discussions based upon their conduct that resulted in the grievance, and are offered acceptable solutions to the situations that precipitated their conduct.

Glossary

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DIVERSION HANDBOOK

Authority

The board of governors has the authority to establish practice and professionalism enhancement programs to which eligible disciplinary cases may be diverted as an alternative to a disciplinary sanction. 3-5.3(a).

Glossary

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DIVERSION HANDBOOK

Existing Programs

Faculty for most diversion programs is comprised of staff from the legal division. Scheduling of attendance at these programs and the monitoring of compliance with all relative conditions is accomplished by staff of the lawyer regulation headquarters office.

Glossary

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DIVERSION HANDBOOK

Ethics School

The ethics school is a one-day program presented at various geographic locations within the state. The program presents practical tips concerning the following areas:

IntroductionOverview of The Florida Bar & Disciplinary SystemFormation of Attorney-Client RelationshipDuties During Representation/TerminationTrust AccountingChemical Dependency/Stress ManagementAdvertisingAttorney’s FeesClient RelationsProfessionalismClosing Remarks, Question & Answer, and Examination

Glossary

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DIVERSION HANDBOOK

Law Office Management Assistance Service (LOMAS)

This program is provided by The Florida Bar and offers lawyers an opportunity to have on-site evaluations of law office procedures, equipment, staffing, business practices and trust accounting procedures. The service is provided on a fee basis that includes travel expenses. A professional staff with a national reputation conducts an onsite review and evaluation of the law office.

The respondent is required to cooperate with LOMAS. The respondent shall fully comply with and implement, at the respondent’s cost, all recommendations made by LOMAS, which recommendations shall be in accordance with the office procedures and record keeping guidelines of LOMAS.

Because of scheduling considerations, the language of agreements in which diversion to LOMAS is agreed shall contain the following language:

Respondent shall contact staff of the LOMAS program within 30 days of the date that this diversion recommendation becomes final. In addition, the respondent shall schedule the initial review required by this recommendation within 60 days of that date. Failure of the respondent to contact LOMAS or schedule the initial review within these stated times shall constitute failure to fully comply with this diversion recommendation and may result in the of the disciplinary file to the grievance committee or bar staff for further proceedings under the Rules Regulating The Florida Bar.

The LOMAS analysis shall consist of an initial review (within 60 days of acceptance of diversion if the LOMAS schedule will accommodate) and any additional interview or review as LOMAS may, in its sole discretion, deem necessary or advisable. The respondent shall pay all fees and expenses of LOMAS incurred or required in connection with the conduct of its analysis. LOMAS shall provide headquarters office of the lawyer regulation department with status reports as to analysis accomplished by agreement to diversion.

Glossary

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DIVERSION HANDBOOK

Florida Lawyers Assistance, Inc. (FLA, Inc.)

FLA is an independent organization that works closely with the bar, the board of bar examiners, and the court and provides direct counseling and referral for treatment of members of the bar who are suffering from chemical or alcoholic dependency and/or mental health issues.

Diversion to FLA is appropriate in cases in which evidence of alcohol or other chemical dependency is present or issues of depression or other mental health considerations are apparent contributors to the alleged misconduct. Counseling and services provided by FLA are usually confidential (3-7.1(o)), however, a referral to FLA by diversion agreement will authorize and require FLA to provide appropriate monthly status reports concerning the respondent’s compliance with the requirements of FLA.

The respondent will participate actively in the program offered by FLA by signing a rehabilitation contract and complying with the terms of such contract. Rehabilitation shall, in appropriate cases, include weekly attendance at AA/NA meetings, monthly meetings with a FLA monitor and random blood testing and urinalysis on the frequency stated in the contract.

The respondent will pay a registration fee required by FLA and a monthly monitoring fee to The Florida Bar. All monthly monitoring fees must be remitted no later than 5 days from the end of each respective month in which the fee is due. All fees must be paid to bar headquarters office in Tallahassee.

Compliance with the conditions required by FLA is monitored by the headquarters staff of the office of lawyer regulation.

Glossary

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DIVERSION HANDBOOK

Continuing Legal Education Seminars (CLE)

The respondent may be required to accumulate continuing legal education credit hours in a particular area of practice during a specified period of time. Any requirement of this type should specify the type of program required, the number of hours to be accumulated, and the specific time frame in which the hours must be accumulated.

Care should be given when determining the type of program that will be required. The availability of the type of program recommended and the number of hours required should be verified by bar counsel prior to promoting the recommendation. As an example, a grievance committee once recommended diversion to 6 hours of trust accounting CLE. At that time no such program existed.

Compliance with this diversion recommendation is monitored by the headquarters staff of the garment of lawyer regulation.

Glossary

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DIVERSION HANDBOOK

Trust Accounting Workshop

This workshop is devoted to teaching the basics necessary for attorneys to properly account for their clients’ money. It will explain the rules governing client trust accounting duties, the concepts behind client trust accounting, and a simple step-by-step system for accounting for clients’ money.

This workshop is a one-half day program that is provided in varying geographic locations around the state. Usually, this workshop is presented the day before, or after, an ethics school or other diversion workshop.

Glossary

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DIVERSION HANDBOOK

Advertising Workshop

This workshop is devoted to teaching the basics necessary for attorneys to develop advertisements that comply with court rules governing lawyer advertising. A Handbook on Lawyer Advertising and Solicitation is provided and includes, among other things, an overview of applicable regulations broken down by the type of advertisement to which they apply; a reproduction of all rules that regulate lawyer advertising; answers to frequently asked questions about attorney advertisingregulation; a Quick Reference Checklist for attorney advertisers; a summary of selected decisions of the Standing Committee on Advertising; examples of complying and non-complying advertisements and direct mail communications; and an overview of proposed amendments to the rules.

Glossary

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DIVERSION HANDBOOK

Stress Management Workshop

This workshop is taught by staff of FLA, Inc. and usually consists of small classes of 3 or 4 students. The students participate in open discussions based upon their conduct that resulted in the grievance, and are offered acceptable solutions to the situations that precipitated their conduct.

Glossary

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DIVERSION HANDBOOK

Professionalism Workshop

The general purpose of this program is to demonstrate that complying with minimum, legal, ethical, and procedural standards does not make one professional. Professionalism is largely a matter of attitude, and discussion of the attitudes and values held by modern lawyers is essential if we are to resolve some of the critical issues facing the profession. The problems presented in this program are designed to give the participants and the facilitators the opportunity for an honest dialogue about difficult decisions lawyers make every day. In the end, the program should help each individual involved to decide what it means to call oneself professional.

Glossary

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DIVERSION HANDBOOK

Diversion Recommendations by Bar Counsel or Grievance Committee

Glossary

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DIVERSION HANDBOOK

Authority to Offer Diversion

The bar cannot offer a respondent the opportunity to divert a disciplinary case to a practice and professionalism enhancement program unless staff counsel, the grievance committee chair and the designated reviewer concur. 3-5.3 (d).

Glossary

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DIVERSION HANDBOOK

Contents of Diversion Recommendation & Costs

The recommendation for diversion must state the program to which the respondent will be diverted, the general purpose for the diversion and the costs there of to be paid by the respondent. 3-5.3(c). See Costs.

Glossary

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DIVERSION HANDBOOK

Costs

As of May 20, 2004, administrative costs are $1250. LOMAS fees are $1,750 on all cases where discipline is imposed.

This is an example of language that can be used. This language covers only FLA, Inc., keep in mind there can and may be more than one condition of Diversion.

COSTS: Respondent shall pay the costs of this matter which are:

Costs $ 750.00

TOTAL: __________ $ 750.00

Additional Costs Which May Be Required:

FLA, Inc. Registration Fee $ 250.00 (if required)

FLA, Inc. Monitoring Fee $ 100.00 per month (if any)

NOTE: The costs are due and payable to The Florida Bar within 30 days from acceptance of this report. The Florida Lawyer’s Assistance, Inc., fees are due and payable according the requirements of FLA, Inc., and only due if FLA, Inc., requires Respondent to undergo treatment and monitoring. Failure to pay The Florida Bar’s costs within the required time period shall result in respondent being declared a delinquent member pursuant to rule 1-3.6 and Respondent will become ineligible to practice law in Florida. Failure to pay FLA, Inc.’s costs, if any, shall result in this matter being returned to the Grievance Committee for further consideration.

Please go to "Disciplinary Costs"

Glossary

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DIVERSION HANDBOOK

Policy on Costs Inclusion

See section on Disciplinary Costs

Glossary

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DIVERSION HANDBOOK

Service of Diversion Recommendation

The approved recommendation must be served on the respondent who may accept or reject the recommendation in the same manner as provided for review of recommendations of minor misconduct. The respondent does not have the right to reject any specific requirement of a practice and professionalism enhancement program. 3-5.3(f).

If the respondent rejects a diversion recommendation, the matter is returned for further proceedings under these rules. 3-5.3 (g).

Glossary

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DIVERSION HANDBOOK

Diversion at Trial Level

Glossary

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DIVERSION HANDBOOK

Agreement/Plea to Diversion

The parties may recommend diversion of a disciplinary case to a practice and professionalism enhancement program. Bar approval is obtained in the manner provide in subdivision (d). Under these circumstances, a conditional plea may be submitted to the referee for review and approval. 3-5.3(h) (1).

Glossary

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DIVERSION HANDBOOK

Referee Recommendation of Diversion

Additionally, a referee may recommend diversion 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. 3-5.3 (h) (2).

Glossary

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DIVERSION HANDBOOK

Appeal of Diversion Recommendation at Referee Level

Reviews of Referee Diversion Recommendations are accomplished in the same manner as any other Referee Recommendation. Rule 3-7.7

Glossary

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DIVERSION HANDBOOK

Referral in Conjunction with Other Disciplinary Sanctions

The referee has the authority to refer a disciplinary matter to a practice and professionalism enhancement program as part of a disciplinary sanction. 3-5.3(h) (5).

Glossary

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DIVERSION HANDBOOK

Effect of Diversion

When the recommendation of diversion becomes final, the respondent must enter the practice and professionalism enhancement program(s) and complete the requirements thereof. Upon the respondent’s entry into the appropriate program(s), the bar must terminate its investigation into the matter and its disciplinary files are closed indicating diversion as the disposition. This is not a disciplinary sanction. 3-5.3 (i).

Glossary

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DIVERSION HANDBOOK

Effect of Completion of Diversion

If the respondent successfully completes all requirements of the practice and professionalism enhancement program(s) to which the respondent is diverted, the discipline file will remain closed. 3-5.3 (j).

Glossary

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DIVERSION HANDBOOK

Effect of Failure to Complete the Diversion Program

If the respondent fails to fully complete all requirements of the program(s) to which the respondent is diverted, including the payment of costs thereof; the bar may reopen its disciplinary file and conduct further proceedings under these rules. Failure to complete the program shall be considered as a matter of aggravation when imposing a disciplinary sanction. 3-5.3 (k).

Glossary

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DIVERSION HANDBOOK

Profile of the Appropriate Canditate - Ethics School

1. Areas of concern that maybe helped by attendance at The Florida Bar’s ethics school:

(a) neglect(b) lack of communication(c) fees(d) personal behavior(e) minor trust account violations(f) suspected alcohol/substance abuse(g) organization/management

2. Generally, an excellent candidate for ethics school would be a solo or small firm practitioner that has been in practice for 11 -20 years and is between the ages of 30 and 50. This candidate has a heavy caseload with minimal staff and has reached middle age with a possible divorce, death or other traumatic crisis. While this candidate has caused little or no harm to his/her client, the candidate is well on the way to getting numerous complaints filed for not returning phone calls, not following up on promised deadlines, etc.

3. The good candidate will receive the following from attendance at ethics school:

(a) a wake up call to the practice of law;(b) a trip back to the basics (i.e., client intake, when and how to establish a fee

agreement, when to terminate representation, how to avoid the client from hell, how to communicate with the clients);

(c) an overview of professionalism concepts(d) stress management and substance abuse issues(e) a walk through of basic trust accounting; and(f) practice pointers to virtually eliminate future allegations of misconduct and

enhance the candidate’s ability to earn income.

Glossary

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DIVERSION HANDBOOK

Diversion Policies

The following are policies to guide bar counsel in the application of the practice and professionalism enhancement program.

Glossary

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DIVERSION HANDBOOK

General Rule No. 1

Staff and grievance committees should first consider the proper disposition of the case at hand without consideration of diversion.

Rationale: By rule, only matters that would result in findings of no probable cause with a letter of advice or minor misconduct are eligible for diversion. If staff and grievance committees do not first determine the proper disposition of the allegations, they are poorly equipped to properly to recommend diversion.

Glossary

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DIVERSION HANDBOOK

General Rule No. 2

Bar counsel must be familiar with the respondent’s disciplinary history and the case at hand to provide proper advice and guidance as to whether the case is proper for a diversion recommendation. Staff counsel will not approve diversion in other than extraordinary cases when other cases are pending at staff or grievance committee level. It is inappropriate to use a respondent’s once-in-7-years shot at diversion knowing other cases are right down the road.

Rationale: Only eligible matters may be diverted. Bar counsel possesses most information that would serve to disqualify a matter from such consideration and must adequately advise chairs, committees, designated reviewers, and staff counsel.

Glossary

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DIVERSION HANDBOOK

General Rule No. 3

As in the case of consent judgments, bar counsel should not approach chairs, grievance committees, or designated reviewers for approval of a diversion recommendation without the advance approval of the CBDC and staff counsel. If approached by chairs, committees or designated reviewers first, bar counsel should advise of the need for final approval by staff counsel before diversion may be offered. Once the committee has made its recommendation, staff should prepare the diversion agenda item for staff counsel’s approval prior to contacting the designated reviewer or the respondent.

Rationale: As in situations of consent judgments, staff should not approach others about plea type arrangements until we are in accord as to the terms thereof. This requirement also eliminates potential embarrassment should there develop a disagreement among staff.

Glossary

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DIVERSION HANDBOOK

General Rule No. 4

No allegation should be elevated beyond the otherwise appropriate disposition in order to qualify a matter for diversion. In other words, cases that ordinarily would be dismissed by staff or in simple no probable cause matters, the allegations cannot be viewed as more serious or substantial in order to qualify the matter for the diversionary program. This program is not intended to be used as a plea of convenience. Rather, it shall only be recommended where identifiable conduct can be positively impacted by attendance. To that end, the diversion is to protect the bar, the public and assist the candidate.

Rationale: The purpose of diversion is to enhance a respondent’s skills. If the allegations do not illuminate any need for enhancement, it is improper to manufacture them. Secondly, we want only those participants in the diversion program who are willing participants.

Glossary

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DIVERSION HANDBOOK

General Rule No. 5

No allegation should be elevated beyond its otherwise appropriate disposition by reason of rejection of a diversion recommendation. In other words, a case that is properly a no probable cause with letter of advice cannot be acted upon with a minor misconduct finding because of the respondent’s rejection of the diversion recommendation. Similarly, a minor misconduct case cannot be elevated in the manner of administration of the admonishment or to a finding of probable cause because the respondent rejected the diversion recommendation.

Rationale: If the otherwise proper disposition of the matter is no probable cause with a letter of advice the rejection of diversion should not be considered as an aggravating factor. Secondly, we want only those participants in the diversion program who are willing participants.

Glossary

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DIVERSION HANDBOOK

Rule 3-5.3 - Diversion of Discipline Cases to Practice and Professionalism Enhancement Programs

(a) Authority of Board. The board of governors is hereby authorized to establish practice and professionalsim 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 within 7 years shall not be eligible for diversion.

(d) Approval of Diversion. The bar shall not offer a respondent the opportunity to divert a disciplinary case to a practice and professionalism enhancement program unless staff counsel, 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), the recommendation shall state the practice and professionalism enhancement program(s) to which the respondent shall be diverted, shall state the general purpose for the diversion, and the costs thereof to be paid by the respondent.

(f) Service of Recommendation on and Review by Respondent. If a diversion recommendation is approved as provided in subdivision (d), the recommendation shall be served 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 shall not have the right to reject any specific requirement of a practice and professionalism enhancement program.

(g) Effect of Rejection of Recommendation by Respondent. In the event that a respondent rejects a diversion recommendation the matter shall be returned for further proceedings under these rules.

(h) 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 as stated in subdivision (d) and the respondent agrees. Under these circumstances a conditional plea, as otherwise authorized by these rules, may be submitted to the referee for review and approval.

(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 of Practice and Professionalism Enhancement Program . A referees recommendation of diversion to a practice and professionalism enhancement program shall state the costs thereof to be paid by the respondent.

(4) Appeal of Diversion Recommendation . The respondent and the bar shall have the right to appeal a referees recommendation of diversion, except in the case of diversion agreed to under subdivision (h)(1).

(5) Authority of Referee to Refer a Matter to a Practice and Professionalism

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Enhancement Program . Nothing in this rule shall preclude a referee from referring a disciplinary matter to a practice and professionalism enhancement program as a part of a disciplinary sanction.

(i) Effect of Diversion. When the recommendation of diversion becomes final, the respondent shall enter the practice and professionalism enhancement program(s) and complete the requirements thereof. Upon respondents entry into a practice and professionalism enhancement program, the bar shall terminate its investigation into the matter and its disciplinary files shall be closed indicating the diversion. Diversion into the practice and professionalism enhancement program shall not constitute a disciplinary sanction.

(j) Effect of Completion of the Practice and Professionalism Enhancement Program. If a respondent successfully completes all requirements of the practice and professionalism enhancement program(s) to which the respondent was diverted, the bars file shall remain closed.

(k) Effect of Failure to Complete the Practice and Professionalism Enhancement Program. If a respondent fails to fully complete all requirements of the practice and professionalism enhancement program(s) to which the respondent was diverted, including the payment of costs thereof, the bar may reopen its disciplinary file and conduct further proceedings under these rules. Failure to complete the practice and professionalism enhancement program shall be considered as a matter of aggravation when imposing a disciplinary sanction.

(l ) Costs of Practice and Professionalism Enhancement Programs. The Florida Bar shall annually determine the costs of practice and professionalism enhancement programs and publish the amount of the costs thereof that shall be assessed against and paid by a respondent.

Glossary

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FEE ARBITRATION/MEDIATION PROCEDURES

Fee Arbitration/Mediation Procedures

The Florida Bar Grievance Mediation and Fee Arbitration Program was established as a means to empower complainants' and respondents' resolution of disputes without the involvement of the formal disciplinary process.

When intake or bar counsel has a staff or grievance committee level file that appears to be appropriate for either Fee Arbitration or Mediation, intake or bar counsel shall determine if the complainant and the respondent will agree to either fee arbitration or mediation by mailing out an "invitation" and receiving positive responses from each.

Intake or Bar counsel will then fill out a short referral form and forward same to the program administrator in Tallahassee along with copies of the written acceptance of fee arbirtarion or mediation. The program administrator will then assign the file to either a mediator or arbitrator for resolution.

Guidelines for Mediation and Fee Arbitration Referrals

The following types of allegations are appropriate for mediation:

1. Alleged refusal of a lawyer to timely return a client's file or copies thereof;2. Alleged refusal of a lawyer to release a lien on a client's recovery in a case in which the lawyer has been succeeded by another counsel;3. Alleged refusal of a lawyer to properly withdraw from representation upon discharge by the client;4. alleged failure of a lawyer to conclude legal representation by failure to prepare an essential dispositive document;5. Alleged failure of a lawyer to comply with a letter of protection issued on behalf of a client;6. Alleged failure of a lawyer to adequately communicate to a client not causing substantial harm to the client;7. Alleged neglect by a lawyer which does not cause substantial harm;8. An alleged isolated instance of incompetence when the lawyer does not have previous discipline for incompetence or neglect;9. Any other matter involving the private rights of the complainant wherein the public interest does not require discipline. The folllowing types of allegations are appropriate for Fee Arbitration:

1. Fee disputes between lawyers, and2. Allegations of an excessive fee when the fee charged is not prohibited, or clearly excessive.

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Glossary

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Fee Arbitration History

Fee complaints are routinely received by the Lawyer Regulation Department involving disputes between attorneys, and attorneys and clients. Prior to the supreme court's approval of the Fee Arbitration Program, the bar had no jurisdiction over such matters unless the fee charged was clearly excessive, illegal, or otherwise prohibited by rule. Many fee disputes are basically matters of misunderstanding and/or lack of communication that could be fully resolved without the formality and expense associated with a lawsuit or invocation of the disciplinary system.

With the establishment of the Fee Arbitration Program, a uniform alternative now exists throughout the state for resolution of legal fee disputes between attorneys or between attorneys and clients. The bar publishes a pamphlet, Consumer Guide to the Legal Fee Arbitration Program , to familiarize the consumer with this program designed to provide an alternative to the court system for the resolution of legal fee disputes.

The Fee Arbitration Program does not have jurisdiction over a dispute that is already in the court system. In addition, the program is limited to disputes between an attorney and a client or between attorneys, and also depends on the mutual assent of the parties. There are some types of recurring situations, such as the classic example of a collection suit by an attorney, that the fee arbitration system can legitimately handle and, thereby, relieve some of the burden now carried by the courts. A Referee or the Court may refer a disciplinary case to the Arbitration Program.

In addition to easing court case loads, the Fee Arbitration Program offers many attractive features to the parties as well. It is a less formal, offers more privacy to the parties; and, perhaps most important, it offers expeditious resolution. The Supreme Court of Florida has imposed a 55-day deadline from assignment of the case to an arbitrator(s), to the entry of a final award.

In May of 2004, the Court restructured the Program under rule 14. The Fee Arbitration/Mediation Program is administered by a Standing Committee comprised of 9 Mediators and 9 Arbitrators who appoint additional mediators and arbitrators. All arbitrators must have the requisite education, training, or certification in alternative dispute resolution, but need not be attorneys. All attorney appointees must have been members of The Florida Bar for at least 5 years. All arbitrators must be trained in bar disciplinary matters unless they have prior experience as a grievance committee member or served as an arbitrator under the previous Fee Arbitration Program. Generally, all arbitrations where the amount in controversy is $2,500 or less shall be assigned to one arbitrator.

Glossary

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Mediation History

Introduction

Alternative dispute resolution is widely accepted and utilized in many courts throughout the country. In many civil cases, a mediation conference is scheduled prior to setting the case for trial. Accordingly, in 1997, The Florida Bar began its mediation program. On June 11, 1998, the Supreme Court of Florida approved the amendments to the Rules Regulating The Florida Bar thereby adopting subchapter 3-8 entitled Florida Bar Grievance Mediation Program. The Florida Bar also adopted the Florida Bar Grievance Mediation Program Policies that specifies the policies and procedures governing the mediation program. In May, 2004, the Supreme Court amended the rules relating to mediation and moved the program from rule 3-8 to rule 14. The amendment restructured the appointment of mediators to a Standing Committee appointed by the board of governors, but did not substantially change either the criteria for referral or the procedure previously utilized.

Glossary

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Case Assessment

A case may be referred to mediation by bar counsel, the grievance committee, the board of governors, the Supreme Court, or the referee. rule 14-4.2. Cases that may result in no probable cause with a letter of advice, diversion, or findings of minor misconduct are best suited for mediation. Decisions to refer cases to mediation should be made on a case-by-case basis. Some examples of disciplinary cases that may be considered for mediation include fee disputes, failure to timely return a client file, refusal to properly withdraw, inadequate communication, neglect not causing substantial harm, and an isolated incidence of incompetence that is not a part of a pattern of neglect. The following factors should be considered when making a mediation referral:

The severity of the alleged misconduct;Whether dishonesty is involved;Whether a pattern of possible misconduct is present;The nature of the ethical duty involved and whether the duty may yet be fulfilled;The public interest and protection thereof; and The interest of the complainant, the respondent and any third parties that are involved.

Glossary

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Approved Mediators

In order to become an approved mediator, the prospective applicant must be a Supreme Court of Florida certified mediator, or any other person who meets the criteria established by rule 14-3.1. Applicants may be lawyers or non-lawyers. All applications are subject to review and approval by the Standing Committee. rule 14-3.1(a). Lawyer Regulation HQ maintains a list of approved mediators and mediators will be selected on a rotational basis from the list of approved mediators. Attorney mediators are entitled to a maximum of 5 CLE hours in ethics for each reporting period. rule 14-3.1(b)

Glossary

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Invitation to the Parties

The forms required for use in mediation cases are included in this manual. Upon completion of the initial assessment by bar counsel, an invitation to mediate is extended to the parties. This essentially invites the parties to mediate the issues raised in the inquiry/complaint. However, because this is an invitation, there is no requirement that either party agree to mediation. A case may also be referred to mediation by the grievance committee, referee or the Supreme Court of Florida. However, a referral by the grievance committee requires the concurrence of bar counsel and referral by the referee requires concurrence by the designated reviewer and bar counsel. All referrals to mediation, except those referrals from the Supreme Court, require consent of the parties.

Mediation is a means to empower complainants and respondents to resolve their disputes without the necessity of formal disciplinary proceedings. Accordingly, the bar is not a party to the mediation.

Glossary

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Acceptance or Rejection by the Parties

Each party shall consent to or reject mediation in writing. Written consent to mediate is not required in cases referred from the Supreme Court of Florida. Upon receipt of written consent, bar counsel should notify HQ by e-mail, provide a synopsis of the issues to be mediated and HQ will obtain a mediator who will contact the parties and schedule the mediation.

Glossary

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Records and Confidentiality

Once the parties have agreed to mediation, HQ will send the mediator the approved mediation referral form which contains a section where the agreed and/or identified issues for mediation are described. The confidentiality provisions of the Florida Rules for Certified and Court-Appointed Mediators apply to proceedings under this program. rule14-7.1(c)

Glossary

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Mediation Report

At the conclusion of the mediation conference, the mediator shall prepare a mediation report. The report must identify the parties to the matter, the date the mediation conference was held, and the identities of the parties in attendance. In addition, the mediation report must state the result of the mediation conference. Results are identified as follows:

The matter settled without resort to a formal mediation conference;A total settlement was reached;A partial settlement was reached;Another mediation conference is necessary;An impasse resulted; orIn the opinion of the mediator, without elaboration, the matter is no longer appropriate

for mediation and is referred back to The Florida Bar. This result is utilized in instances where alleged violations are divulged or discovered that are of a sort not proper for mediation, or a party to the mediation appears to the mediator to be incompetent to participate in the mediation.

Glossary

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Case Closure

The closure date of a case referred to mediation should be reported as the date the case is sent/referred to the program administrator. Rule 14-5.1(a). The initial mediation conference should be scheduled within 45 days of referral of the file. The written mediation report regarding the results of the mediation conference must be made a part of the file.

Glossary

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Case Review

The proram administrator must review the mediation file when the mediation report is received. The purpose of the case review is to determine whether further action is required. The disciplinary file shall remain closed unless:

The respondent failed to attend mediation; orSubsequent to a successful meditation, bar counsel learns that the respondent has failed to fully comply with the terms of a written mediation agreement.

The respondents failure to attend an agreed-upon mediation conference without good cause as well as the respondents failure to fully comply with the terms of a written mediation agreement shall be a violation of the Rules Regulating The Florida Bar. rule 14-5.1(b).

A case referred to mediation but not fully resolved due to the complainants failure to attend a scheduled mediation conference without good cause may remain closed. rule 14-5.1(c).

Glossary

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Options for Further Actions by Bar Counsel

Upon review of the mediation report bar counsel may:

Determine that the file should remain closed;Initiate a disciplinary investigation by contacting the respondent and solicitinga response;Return the file to the grievance committee for further investigation and resolution; or

other actions as may be appropriate after case review with CBDC.

Glossary

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CLIENTS' SECURITY FUND - REGULATIONS

Clients' Security Fund

Glossary

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CLIENTS' SECURITY FUND

General Information


The Clients' Security Fund is authorized by rule 1-8.4 of the Rules Regulating The Florida Bar and operates in accordance with Chapter 7 of the Rules Regulating The Florida Bar. The Clients' Security Fund was created to reimburse applicants who have suffered a loss as defined by the Fund rules. A loss is a monetary or property loss suffered by reason of misappropriation, embezzlement or wrongful taking or conversion by a member of The Florida Bar of money or property that came into the attorney's possession or control when acting as a lawyer or in a fiduciary capacity customary to the practice of law. Fund procedure is as follows:

1. Application is received by the Public Service Programs Department.

2. Application is reviewed and if sufficient, is forwarded to a member of the Clients' Security Fund Committee who investigates the claim.

3. The committee member files a written report, which is considered by the full Clients' Security Fund Committee at one of three regularly scheduled committee meetings.

4. The committee makes a recommendation on the claim and its recommendation, the investigating report and backup material are forwarded to a member of the Board of Governors for his or her review (Designated Reviewer).

5. The Board of Governors member concurs or dissents from the committee recommendation and forwards his or her action to the Public Service Programs Department.

6. The claim is agendaed for Board of Governors action.

Glossary

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Regulations

REGULATIONS OF THE CLIENTS' SECURITY FUND

In order to carry out the purposes and achieve the objectives of the provisions of chapter 7, Rules Regulating The Florida Bar, the Clients' Security Fund Committee, with the approval of the Board of Governors of The Florida Bar, promulgates the following regulations to serve as a guide, but not to bind, the operation of the Clients' Security Fund:

1. The fund will operate on a fiscal year basis, concurrent with the fiscal year of The Florida Bar.

2. Investigating members of the committee shall prepare a written report on a form furnished by The Florida Bar on all claims assigned to each of them. The report should be completed and returned to The Florida Bar no later than 90 days from the date the claim is mailed to the investigating member.

The committee shall consider the claim at the next scheduled meeting and shall forward a complete report to the designated reviewer.

The designated reviewer shall promptly review the report of the committee and report his or her recommendations to staff for inclusion in the agenda for the consideration of the board of governors.

Upon receipt of the report of the designated reviewer, the claim will be placed on the agenda of the board of governors.

3. No reimbursement on account of a claim shall be made from the fund unless and until the same has been authorized by the board or the committee and the claimant has executed assignments and other documents as may reasonably be requested by the board and the committee. As a condition to any payment staff may require such assurances as it deems appropriate to satisfy all conditions imposed upon any such payment, and to verify that payment is made to the proper party or representative of that party. Neither The Florida Bar, the board, the committee, nor staff shall incur any liability for nonpayment of claims or for erroneous payments.

4. The maximum amount payable for any valid loss except attorneys' fees shall be $50,000.

5. Ordinarily, no claim will be considered unless an application for relief has been filed with the bar within 2 years after the applicant has discovered, or with reasonable diligence should have discovered, the loss.

6. The Public Interest Programs and Services Department shall serve as the staff

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agency for Clients' Security Fund matters with primary responsibility for (a) investigating and reporting on claims for amounts of $500 or less; (b) recommending denial of those claims received which are clearly not covered by the Fund; (c) denying claims when the underlying grievance matter has been closed by the bar without discipline or the claimant has withdrawn the claim; (d) preparation of the committee agenda and recording the minutes of the committee meetings; (e) presentation of claims to the board of governors; (f) notifying claimants of ultimate disposition; (g) coordinating payouts with the finance and accounting Department and the director of public information and bar services department; (h) monitoring subrogation rights on previously paid claims; and (i) preparation of annual Fund reports.

7. Claimants should reasonably exhaust other remedies before seeking reimbursement from the Clients' Security Fund. Other remedies include bonds, professional liability policies, third party responsibility, the defalcating attorney's partners and deceased attorney's estate.

8. Of the annual allocation up to $25.00 may be allocated to create and maintain a reserve fund of $500,000. This reserve and interest accumulated thereon shall not be used to satisfy claims without authorization of two-thirds of the board of governors present and voting on the issue of the use of the reserve.

9. The Clients' Security Fund Committee may require that the claimant file a complaint against the attorney with the appropriate state attorney's office; file a civil suit in an appropriate court; or cooperate with the committee in appropriate proceedings against such lawyer as prerequisites to the granting of relief from the Fund.

10. Claims by relatives, partners, or other close associates of the attorney will ordinarily be denied.

11. The Clients' Security Fund Committee will consider for payment only those claims arising out of an attorney and client relationship. Investment advice given by the claimant's attorney, although such advice may result in the loss of claimant's money, is not, in and of itself, a ground for seeking reimbursement from the Fund.

Claims arising out of investments may be considered for payment, however, when the attorney is in the possession of the claimant's money, which the attorney has obtained by virtue of an attorney and client relationship with the claimant, when the attorney advises the claimant to invest the money in a business or other venture, and the attorney then misappropriates the claimant's money.

Ordinarily, interest on investments will not be reimbursed. Unless a claimant establishes otherwise, all payments received on the investment, from whatever source, will be considered to be return of principal and will be deducted from the claimant's initial investment with the attorney in order to determine, for Fund purposes, the claimant's reimbursable loss.

12. Where the attorney, unrelated to an attorney and client relationship, is a personal representative, testamentary trustee, guardian or escrow agent for the claimant, the claim will be

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denied pursuant to The Florida Bar, In re: Amendment to the Integration Rule and Bylaws Respecting Clients' Security Fund, 346 So.2d 537 (Fla. 1977).

13. Claims by government agencies, institutional lenders, insurance companies, publicly owned entities, entities which fail to disclose to the Clients' Security Fund Committee the names and addresses of their direct and indirect beneficial and record owners, and subrogees, brought on their behalf and not as representatives, will not ordinarily be considered for payment.

14. Claims or portions of claims representing fees paid to a member of the bar for services to be rendered shall not be paid in excess of $2,500. If services were performed that were useful to the claimant, the claim will be denied.

15. Claims against members in good standing will ordinarily be denied or payment delayed until discipline is ordered by the supreme court.

16. No claim shall be approved where the defaulting attorney was bonded in any capacity which protected the rights of the applicant, where the defalcating attorney was insured under a lawyers' professional liability policy or a policy of a similar nature which protected the rights of the applicant, or where the claim might be payable from any other source; provided, however, that the committee, in a case of extreme hardship, may recommend approval of such a claim provided the Fund is substituted in place of the applicant for any amounts which might be due the applicant by the bonding or insurance company, or other source.

17. An attorney representing an applicant shall be required to give to the committee a written statement that he or she will not accept a fee from the applicant for services rendered in connection with a claim against the Fund.

18. Publicity of Fund activities shall be at the discretion of the board of governors members and Clients' Security Fund Committee members in the circuit where an award is made.

19. An annual report detailing the financial activities of the Fund shall be prepared by staff, approved by the committee chair and published in The Florida Bar Journal or News.

20. A claim of $25,000 or less shall be paid in full upon approval. On any claim that exceeds $25,000, payment of $25,000 shall be made upon approval by the board of governors. The amount of an approved claim in excess of $25,000 shall be pooled with all other such excess amounts and at the end of the fiscal year the remaining allocated funds for that fiscal year shall be applied to pro rata payment of the excess amounts.

If any claim remains unclaimed at the close of the fiscal year following the fiscal year in which the claim is approved, those funds will be returned to the Clients' Security Fund General Fund. A final request for response will be sent to the claimant(s) prior to the return of funds to the Clients' Security Fund General Fund. If there was a shortfall for the year in which the claims were approved, claimants not fully compensated will be eligible to receive additional funds.

21. The foregoing regulations may be amended by the committee with the approval of

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the board.

Glossary

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CONTEMPT CASES

Contempt Cases

Headquarters Contempt Cases

When a respondent is ordered by the court to comply with specific conditions as a result of a disciplinary proceeding and subsequently fails to comply with those conditions, headquarters will file a Petition for Contempt and Order to Show Cause. Examples include respondent's failure to attend a Practic and Professionalism Program, failure to pay restitution, failure to pay FLA, Inc. monitoring costs, failure to submit trust account reports, and failure to initiate fee arbitration. The prayer for relief must state with specificity the discipline sought.

Normally, upon receipt, the court will issue an Order to Show Cause and require the respondent to explain why he/she should not be held in contempt. If respondent's reply creates an issue of fact, the court may send an order to the Chief Judge of the adjoining judicial circuit to appoint a referee. When that occurs, headquarters will transfer the file to the appropriate branch office for prosecution of the contemptuous conduct. The referee will then conduct hearings similar to a normal disciplinary case and issue a Report of Referee.

If respondent admits the alleged noncompliance, the file is often transferred to a referee for a hearing to determine the appropriate discipline, or the court may impose discipline without referral to a referee.

If respondent fails to timely respond to the Order to Show Cause, the Court does not want the bar to file a Motion for Judgment on the Pleadings as the filing of the Motion will delay the Court's decision.

Branch Contempt Cases

Under certain circumstances, a branch office will file the Petition for Contempt and Order to Show Cause. This occurs when respondent engages in affirmative conduct that violates a previously issued court order of discipline. The most common example is when respondent continues to practice law after a suspension. Headquarters will not be involved in the prosecution of these cases.

Bar counsel should utilize the same procedures as a regular disciplinary case in regards to the ultimate discipline sought. If respondent is interested in entering into a consent judgment, then staff counsel and the designated reviewer must agree.

Glossary

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EMERGENCY SUSPENSION & PROBATION CASES

Emergency Suspension & Probation Cases

Emergency suspension and probation cases are governed by Rule 3-5.2.

Glossary

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Nature

An emergency suspension or probation is a drastic but effective remedy reserved for those cases when a respondent is causing great public harm. 3-5.2(a). Upon petition to the supreme court, with supporting affidavits, the bar seeks to have a respondent suspended indefinitely or placed on probation limiting the scope of practice without a hearing prior to the order. It is crucial that bar counsel be ready to try the merits of the case upon the filing of the petition as the bar is required to file a follow up complaint within 60 days of the date of the order imposing the emergency suspension or probation, however, since we are requesting an emergency action, the factual basis for the suspension/probation must not be stale. 3-5.2(d).

The follow up complaint may be filed without a finding of probable cause by a grievance committee or the board of governors. 3-5.2(d)

Glossary

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Requirement of Public Harm

Public harm is not defined by the rule, but it is a generally accepted principal that theft cases fall into the definition. Other potential uses of the rule include abandonment of a law practice or perhaps a major insurance fraud case that has not yet ripened into a criminal charge. [Also see R. Regulating Fla. Bar 3-3.2(b) for the ability to directly file a complaint based upon a felony conviction or determination.] The typical emergency suspension case concerns the theft of client monies.

An example of when emergency probation may be appropriate involves cases alleging that a lawyer is having sexual relationships with clients. Under such circumstances emergency probation may be appropriate to limit the lawyer's ability to have unsupervised contact with clients so as to avoid future accusations of sexual relationships.

Glossary

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Pleading Requirements

The court has directed that the opening paragraph of a petition for emergency suspension for probation must include a specific statement as to the nature of the public harm involved. It is important to explain to the court how the respondent stole client monies and to what use these monies went (if you know). For example, if the accusation is one of trust accounting theft, the opening paragraph shall contain words to the effect of:

This petition of The Florida Bar seeks emergency relief and requires the immediate attention of the court pursuant to 3-5.2, R. Regulating Fla. Bar. The Florida Bar seeks the emergency suspension of respondent from the practice of law in Florida based on facts that establish clearly and convincingly that respondent appears to be causing great public harm by the misappropriation of client trust funds or property. Those facts, supported by affidavits attached hereto are:

Additionally, the court will grant relief only to the extent that the prayer for relief requests specific, identifiable matter. Therefore, the prayer for relief should contain the following:

The Florida Bar requests the court to enter an order suspending the respondent from the practice of law on an emergency basis and further ordering the respondent:

To accept no new clients from the date of this court’s order and to cease representing any clients after 30 days from such date;

To immediately furnish a copy of respondent’s suspension order to all clients, opposing counsel and courts and to furnish Staff Counsel of The Florida Bar with an affidavit listing all clients, counsel and courts so informed, within 30 days after issuance of this court’s order;

To refrain from withdrawing any monies from any trust account or law firm operating account;

To deposit into a specified trust account all sums received from the practice of law whether as fees, costs, deposits, or trust funds, and to immediately advise bar counsel of the receipt and location of such funds;

To refrain from disbursing any monies held in any trust account without approval of a judicial referee appointed by this court or by order of the circuit court in an inventory proceeding instituted under the Rules Regulating The Florida Bar; and

To immediately notify, in writing, all financial institutions in which respondent maintains a trust account or law office operating account of the provisions of the respondent’s suspension, to provide said financial institutions with a copy of this court’s order, and to provide bar counsel with a copy of each notice.

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Glossary

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Attachments to the Petition

Do not attach extraneous documentation. While you need to demonstrate "clearly and convincingly that an attorney appears to be causing great public harm", the inclusion of non-relevant documentation may just confuse the issue.

Your most important exhibit is your auditor's affidavit. The affidavit should include the following:

a full description of the trust accounts and operating accounts examined;the time frame that was reviewed; andschedules reflecting the shortages found or the other irregularities that were

discovered.

If you only have one affidavit, you can identify same with an exhibit number. You should state: Those facts, supported by the affidavit of the bar auditor, attached hereto as Exhibit X, are as follows:

Your petition must completely plead the facts that are crucial for the granting of the petition. Do not merely allege see the attached affidavit, or words similar. Plead the facts and then cite the attached affidavit. Do not make the reader go to the affidavit to read the facts.

Glossary

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Presumption of Seeking Emergency Suspension or Probation

It is the stated policy of the board of governors that instances of trust accounting theft shall be pursued by a petition for emergency suspension. The policy of the bar has been reduced to writing as a standing board policy and is as follows:

15.60 Emergency Suspensions. Upon receipt of a complaint alleging misappropriation of trust funds, chief branch disciplinary counsel shall immediately notify staff counsel and initiate an investigation to determine whether information exists that clearly establishes a misappropriation. If a misappropriation is established staff counsel and chief branch disciplinary counsel shall determine if the filing of a petition for emergency suspension is warranted under the facts and, if so, chief branch disciplinary counsel shall immediately take the steps necessary to file the petition.

A petition for emergency suspension shall be filed in every case where there is a misappropriation of trust funds, unless there are facts known that clearly establish that the respondent will not cause great public harm if emergency action is not taken. The decision not to file such a petition shall be by the concurrence of the designated reviewer, staff counsel and bar counsel, and thereafter shall be approved by the board of governors. Such a decision and the reasons therefore, shall be reduced to writing and made a part of the file.

Any dispute over the appropriateness of the filing of a petition for emergency suspension shall be resolved in favor of filing the petition, unless the designated reviewer directs that the dispute be referred to the board of governors.

Glossary

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Preparation and Investigation

Bar counsel must carefully and thoroughly investigate the case to ensure that all the appropriate bank records, other trust account records and supporting documentation (i.e. closing statements, contracts, wills, etc.) are on hand prior to filing the petition for emergency suspension. Bar counsel must have the auditor complete a total review of these records and to reduce their findings to an affidavit. You may also want to secure affidavits from the victims or other third parties that may have relevant information on the theft. Affidavits from staff investigators concerning the details learned in their investigation are also effective. Lastly, you should consider inviting respondent, via a grievance committee subpoena, to appear and give a statement, as there is nothing more compelling than admissions or the invocation of the Fifth Amendment privilege by a respondent. This will also give you an opportunity to discover respondent's potential defenses.

Glossary

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Intent

Intent is a vital aspect of any theft case. Prior to filing your petition, you should have your theory on intent and proof of the same in hand. Good evidence of an intentional theft is numerous checks drawn against the trust account for respondent's personal use (i.e., the rent payment) or checks drawn to respondent's order when these funds would exceed any entitlement respondent may have had to funds in the trust account. A good discussion of intent evidence may be found in The Florida Bar v. Simring, 612 So.2d 561 (Fla. 1993).

Glossary

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Restitution

While restitution may enter into the discussion on the ultimate sanction to impose in a case, full or partial restitution by a respondent is no bar to securing an emergency suspension order. In fact, the court has still entered emergency suspension orders in cases where a respondent stole client monies and had restored these monies to trust several years prior to the bar's application for emergency suspension.

If restitution is a component of the sanction that is sought, restitution must be requested in a specific amount and payable within a specified period of time. Restitution that is conditioned upon reinstatement or other future events may well be illusory. It is the policy of this department to seek restitution within a specified time period after the entry of an order requiring restitution.

Glossary

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Including Other Grievances

There is no hard or fast rule on whether or not to include in your petition other grievances that may be pending against respondent. However, what could be more relevant than a pending rule to show cause predicated upon respondent's failure to produce trust account records or client complaints sounding the theft that have not yet been investigated fully. Selectivity should be used when including other cases as the stay provisions of Rule 3-5.2(e) may prevent a speedy resolution of cases unrelated to the theft of client monies. See The Florida Bar v. Jonh Barley, 777 So.2d 941 (Fla. 2000).

Care should be exercised to not include matters that may not support a finding of great public harm. Public harm is a prerequisite to granting an order of emergency relief and any allegation which detracts from that finding should be carefully considered and not included in a petition for emergency relief.

Glossary

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Permission of Staff Counsel and Executive Director Required

A petition for emergency suspension must be approved by the president, the president-elect or the Executive Director of The Florida Bar. 3-5.2(a). As a matter of policy, approval by staff counsel is also required. The best evidence of such approval is the signature of those individuals on the petition for emergency relief. Therefore, all petitions for emergency suspension are forwarded to headquarters for review, signatures, and filing. Headquarters will forward the petition to the executive director for his approval. Accordingly, your pleading must have a signature block for staff counsel and the executive director.

Glossary

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Motion to Terminate or Modify Emergency Relief

A respondent may file responsive pleadings directed against a petition for emergency suspension or probation. Bar counsel should rarely, if ever, agree to an extension of time for respondent to file responsive pleadings. If a respondent files a responsive pleading, the bar should be able to file a reply that refutes any perceived defenses raised by the respondent. The court acts promptly on the petition for emergency suspension and frequently enters an emergency order within days of the petition.

If the respondent files a motion to terminate or modify the emergency relief, that motion acts as a stay of all related proceedings, inclusive of related cases at referee or before a grievance committee. Unrelated cases may still go forward. The filing of a motion for dissolution does not stay the effective provisions of the suspension order unless the court directs otherwise. 3-5.2(e) (1).

The court may appoint a referee, if one is not already appointed, to hear the motion to terminate or modify and the referee shall hear such motion within 7 days of assignment and render a report to the court within 7 days after a hearing on the motion. 3-5.2(e) (2). The burden of proof at the hearing rests with the bar and such burden is whether bar counsel can demonstrate “a likelihood of prevailing on the merits of any element of the underlying complaint.” 3-5.2(e) (2).

If a respondent invokes the fifth amendment privilege during the hearing or during discovery, the bar should move to dismiss the motion for termination or dissolution, as a party may not seek affirmative relief and then invoke the fifth amendment to avoid giving discovery. See for example City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2nd DCA 1978); Awan v. Department of Revenue, 370 So. 2d 1329 (Fla. 2nd DCA 1990); Stockham v. Stockham, 168 So.2d 320 (Fla. 1965); Rollins v. Euroclass Ltd., 502 So.2d 959 (Fla. 3rd DCA 1987).

If the court, acting on the recommendation of a referee, continues the emergency relief previously granted, the bar has 60 days in which to file a formal complaint on the underlying charge and proceed to trial of the issues without a finding of probable cause. An order of the court continuing the emergency relief automatically dissolves any stay. 3-5.2(e) (4).

Successive motions are not allowed. The 3-5.2(e) (3).

Glossary

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Review of Referee Recommendation

The referee's decision to uphold or recommend any change to the suspension order is reviewable by either party, by petition to the Supreme Court of Florida. 3-5.2(g).

This report of referee should be forwarded to the executive committee, via an executive committee memo, so the bar may be prepared to initiate or defend an appeal on an expedited basis. Normal briefing deadlines will apply, unless the court orders otherwise. Bar counsel should be mindful of due process concerns when seeking any extension to file a brief.

Glossary

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Court Orders

The court's initial order will set forth the parameters of the emergency suspension (or emergency probation). 3-5.2(a). Normally, a respondent will be given a 30-day period to wind down the practice of law, but the other provisions of the court's order will go into effect immediately. As with all suspension orders, a respondent will be required to inform all clients, courts and opposing cousel of the suspension. Bar counsel should secure a copy of respondent's compliance affidavit, for this may provide addresses for clients to further investigate your theft case.

The court’s order on a recommendation of a referee pursuant to a motion to terminate or dissolve emergency relief will continue the original relief, modify and continue same, or dissolve the emerging order. In the event that the original relief is continued or modified and continued, the automatic stay shall be dissolved and the follow up proceedings must be instituted. 3-5.2(g); 3-5.2(e) (4) and (f).

Glossary

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Waiver of Time Limits

A respondent may waive the time requirements set forth in this rule by written request made to and approved by a referee assigned in the proceedings. 3-5.2(h).

Glossary

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Follow-Up Action

Upon the granting of an order of emergency suspension or if the court has continued an emergency suspension after an unsuccessful challenge by respondent, the bar must file its complaint within 60 days of such a court order. 3-5.2(d) & (e) (4). When seeking an emergency suspension, bar counsel should have the complaint drafted and ready for signature, pending the court's order. A complaint predicated upon the entry of an emergency suspension does not need a finding of probable cause by a grievance committee and bar counsel may directly file this complaint. 3-3.2(b) and 3-5.2(d). In all other respects, except for time frames, this complaint will be processed in the normal fashion for complaints.

A complaint predicated upon an emergency suspension must be tried within 90 days of the referees appointment. 3-5.2 (f) & (h).

WARNING - A FAILURE TO HAVE THE MATTER TRIED WITHIN 90 DAYS HAS RESULTED IN THE DISSOLUTION OF EMERGENCY SUSPENSION ORDERS. Rule 3-5.2(f) states that the emergency suspension order will be automatically dissolved if the matter is not tried by the 90th day, unless good cause is shown to the Supreme Court of Florida. However, the other terms and conditions of the emergency suspension order (i.e. the freeze on the trust account) will remain in effect. If a respondent is willing to waive this speedy trial requirement, the waiver must be reduced to writing, ratified by order of the referee, and forwarded to the Supreme Court of Florida. 3-5.2(h).

Review of a referee's report by the court shall be expedited. 3-5.2(g).

Glossary

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FELONY CONVICTION CASES

Felony Conviction Cases

Glossary

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Notice of Determination or Judgment of Guilt

Proceedings of this type are in the nature of injunctive relief. When a member of the bar is found guilty, whether or not there is an adjudication of guilt, bar counsel must file a notice of determination or judgment of guilt in the Supreme Court. The Court will then enter a suspension and refer the case for appointment of a Referee. Rule 3-7.2 (c) through (k) governs this procedure and was amended effective August 1, 2006.

Bar counsel must attach a copy of the documents on which the determination or judgment is based to the Notice. Respondent may file a Petition to Modify or Terminate the Suspension, which will not operate as a stay of the suspension. The Referee may only modify or terminate the suspension if the suspended member can demonstrate that the member is not the convicted person or the criminal offense is not a felony.

Glossary

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Suspension Order

Upon the filing of such notice the respondent shall be suspended by the court on the 11th day after the filing if the respondent does not file a response to the petition in a timely manner. 3-7.2(e).

Glossary

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Petition to Modify Suspension

If the respondent files a petition to terminate or modify the suspension on or before 10 days after the notice was filed, the court shall delay the entry of an order of suspension until the motion is resolved 3-7.2(f). The bar has 20 days to file a response to the petition to modify and the bar will oppose all such efforts unless the designated reviewer and the executive committee agree not to oppose same. 3-7.2(g).

The court may resolve the petition based on the filings of the bar and the respondent or the court may assign a referee to take testimony and make a report and recommendation concerning the petition.

Glossary

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Term of Suspension

Any suspension entered under this rule remains in effect for 3 years and thereafter until civil rights have been restored and the respondent has been reinstated as elsewhere provided in the applicable rules. 3-7.2(h) (1). An appeal of the criminal conviction shall not affect the entry of the suspension under this rule and an affirmance of the conviction on appeal shall continue the suspension. 3-7.2(h) (2).

Glossary

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Follow-Up Action

The bar may initiate separate disciplinary action. 3-7.2(i).

It is the policy of the bar that, except in unusual circumstances, the bar will initiate separate disciplinary action and seek disbarment. This policy is based on the fact that the legislature, as the public policy making body concerning criminal offenses, has established as policy for this state that certain conduct is sufficiently egregious as to be classified as felony. Based on that statement of public policy and based on court holdings that convicted felons (who have lost civil rights) are not suited to practice law, the bar has adopted this policy. If bar counsel wishes to refrain from seeking disbarment, approval must be obtained from the chief branch discipline counsel, staff counsel, the designated reviewer, and the board of governors or its executive committee acting in its place.

Glossary

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Bar Policy

It is board policy to seek disbarment in every felony suspension case. Should other discipline be sought, approval from headquarters and the board must be obtained.

Glossary

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Evidence

Bar counsel should introduce a certified copy of the judgment of guilt and then move for a directed verdict as said judgment of guilt is conclusive proof of the felonious conduct. See Rule 3-7.2(b); The Florida Bar v. MacGuire, 529 So.2d 669 (Fla. 1988). The only issue then is aggravation and mitigation, which should include a discussion of why this is a felony that warrants disbarment. It should be noted however, that this procedure may be appropriate in the majority of felony conviction follow-up cases, it is sometimes necessary to present testimony concerning the full nature and extent of the felonious conduct. In such cases it will be necessary to adequately illustrate to a referee the true nature of the respondent’s conduct and the only way to do so will be through additional evidence.

Glossary

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No Trial De Novo

A respondent is not entitled to a trial de novo on the merits of the felony conviction. The Florida Bar v. Vernell, 374 So.2d 473 (Fla. 1979). However, most respondents, especially when there are codefendants in the criminal case, will try and minimize their relationship to the crime. Bar counsel should not allow this limited type of testimony to blossom into a retrial on the merits of the crime.

If the respondent has entered an Alford plea [North Carolina v. Alford, 400 U.S. 25 (1970) (A plea containing a protestation of innocence when a defendant intelligently concludes that his interests require entry of a guilty plea.)] to the underlying criminal action, the respondent will be allowed to introduce testimony concerning the circumstances surrounding the plea. The Florida Bar v. Pavlick, 504 So.2d 1231 (Fla. 1987). A failure to prevent respondent from introducing evidence on his guilt or innocence may result in a lesser discipline being recommended by the referee. Bar counsel has the responsibility to determine that the plea entered in federal court was in fact a bona fide Alford plea. Note: Alford pleas are available in federal court cases only. State courts allow a No Contest plea which is equivalent to an Alford plea.

Glossary

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Fifth Amendment

There are no fifth amendment issues, as the respondent is no longer under threat of criminal prosecution because that proceeding ended for fifth amendment purposes upon the conviction.

Glossary

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Appeal of Criminal Case

An appeal of the underlying felony conviction does not preclude the bar from going forward and seeking disbarment. The Florida Bar v. MacGuire, 529 So.2d 669 (Fla. 1988). However, in The Florida Bar v. Lusskin, 630 So.2d 1102 (Fla. 1993), the court held that it was within the discretion of the referee to abate the disbarment proceedings pending the outcome of a criminal appeal when the lawyer in that case was under felony suspension and imprisoned.

Glossary

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Abatement

It is within the referees discretion to abate the trial on a felony conviction case. See Lusskin above.

Glossary

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Effect of Acquittal on Appeal

If the underlying criminal case is overturned on appeal resulting in acquittal, such action will automatically terminate a suspension entered under this rule. 3-7.2(h).

Glossary

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Procedures

Glossary

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The Notice

In order to properly meet the requirements of the rule you will need to accomplish the following:

Secure a certified copy of the judgment of guilt. Although the rule requires the clerk of a court of this state to transmit to the supreme court and the executive director a certified copy of the order determining or judging guilt, and a convicted attorney has 30 days to notify the executive director, these notices are frequently not given due to a lack of understanding by the clerks and lack of interest by the convicted attorney. 3-7.2(c) & (d). You should be aware that it does not matter whether there is an adjudication of guilt, as the failure to adjudicate a respondent may only be considered as a potential mitigating factor. 3-7.2(i)(3). Additionally, the crime must either be a felony under Florida law or under the laws of the jurisdiction where the conviction was secured.

Draft a notice of determination or judgment of guilt. Unlike most pleadings that initiate a proceeding in the Supreme Court of Florida, this pleading only requires the signature of bar counsel, however, the notice must be approved by the chief branch discipline counsel as a matter of internal policy.

File the notice of determination or judgment of guilt, with the certified copy of the judgment of guilt attached thereto, in the Supreme Court of Florida.

Glossary

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Responsive Pleadings

A respondent may contest the automatic felony suspension and the pleading that should be filed by a respondent is called a petition to modify or terminate the suspension. 3-7.2(f). Respondent's goal is to reduce or eliminate the suspension. The filing of a petition to modify or terminate has a different effect depending on when the pleading is filed by respondent.

If respondent files a petition to modify or terminate within 10 days of the filing of a notice of determination or judgment of guilt, respondent's suspension from the practice of law will be deferred until the court acts on respondent's petition. Rule 3-7.2(f)(2).

Respondents filing of a petition to modify or terminate more than 10 days after the filing of a notice of determination or judgment of guilt does not affect the suspension, which will remain in effect pending the disposition of respondent's petition. 3-7.2(f)(3). The respondent must show good cause to dissolve or modify the suspension.

The bar is allowed 20 days from the filing of respondent's petition to respond to the petition. 3-7.2(g). The rule also requires bar counsel to oppose the petition unless the designated reviewer and the executive committee concur in not opposing the petition. Due to time constraints bar counsel must normally seek the executive committee's instructions via an executive committee memo. However, the rule does not preclude the use of an agenda item if the full board of governors has a meeting that will conclude prior to the 20 day response time. Upon receipt of instruction on how to proceed, bar counsel must advise the court of the bar's position.

Glossary

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Case Law on Due Process

A respondent has challenged the constitutionality of the automatic felony suspension rule by claiming that he was denied procedural due process and equal protection under the law by the failure of the rule to provide a hearing prior to the imposition of the suspension. The court disagreed. See The Florida Bar v. Greenfield, SC76444 (Fla. 1990), rejecting such challenge without comment. Also see The Florida Bar v. Heller, 473 So.2d 1250 (Fla. 1985) [Conviction of a felony is conclusive proof of the commission of the felony and, on the basis of the wrongdoing thus shown, immediate suspension from the practice of law is warranted, but the court has the discretion to defer the suspension for good cause shown.].

Glossary

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Court Action

Upon receipt of the bar's position the court will either decide the issue themselves or forward the matter to a referee for disposition. Although the rule is silent on this point, a referee appointed to consider a petition to modify or terminate a felony suspension will have less than the usual 180 days to render a report to the court. If a referee is appointed, turn to that portion of this manual concerning trials before a referee.

Glossary

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Complaint Prior to Conviction

Rule 3-3.2(b) allows bar counsel to directly file a complaint against a lawyer who has been "charged with the commission of a felony" but not yet convicted. Concurrence of the grievance committee chair is required. It should be noted that this type of case presents fifth amendment concerns, as well as the necessity of having to prove the merits of the criminal case. You should also consult with the state attorney handling the criminal case to ascertain the level of cooperation that will be forthcoming and how your case would impact the state. For example, victims may be compelled to give a deposition in your case and also be subject to another deposition in the criminal matter.

Unlike the complaint in a conviction case, you will need to provide real detail of the alleged crime and not just make reference to the information and conviction. For example, if you want to charge someone with arson you will need to look at the statute and then plead all of the statutory elements (i.e., there was a fire, set by the respondent, and for the purposes of pecuniary gain).

It is within the referees discretion to abate the trial of this case. See Lusskin above. In fact they may be more likely to do so due to very real fifth amendment issues. In The Florida Bar v. Brown, SC 90092 (Fla. June 23, 1998), the bar was able to defeat a motion to abate, try the case and secure a conviction and recommendation of disbarment. However, on appeal the supreme court decided to enter an interim suspension and abate a final decision until the underlying criminal trial was concluded.

Please note that in State v. Spiegel, 710 So.2d 13 (Fla. 3rd DCA 1998), the court found that a statement given during a bar proceeding was not admissible in the underlying criminal case.

Glossary

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MONITOR CASES

Monitor Cases

Glossary

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MONITOR CASES

Eligibility

Monitor files, while useful in some circumstances, are discouraged as they tend to allow investigations to age more than necessary and under applicable rules an investigation shall not be delayed without approval the board of governors even though there may be pending civil or criminal litigation. There are times in which the bar may not effectively proceed due to the unavailability of witnesses or evidence because of pending criminal proceedings and the bar has no alternative other than to monitor the criminal case. Also, there may be valid reasons to observe actions in other forums before proceeding to completion of an investigation.

Before a monitor file is opened the bar should investigate to the extent possible and proceed with the file as far is reasonable before placing it on monitor status. For example, pending criminal charges may well stymie the bar’s access to witnesses and evidence, but sufficient information should be available to determine the issue of probable cause. In such a case, the regular disciplinary case file could progress through a finding of probable cause and then be placed on monitor, assuming access to information and evidence was not available.

In such cases, we may open files to monitor developments and other areas and to have a means to record action and accumulate evidence.

Glossary

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MONITOR CASES

Periodic Review Required

It is the policy of this department to require regular, periodic review (every 90 days) of each case on the monitor list so that our ability to actively pursue an investigation will be timely identified and an investigation engaged.

Glossary

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MONITOR CASES

Conversion to Regular Discipline File

When it is determined that the subject of a monitor file is now are ripe for active investigation, bar counsel may close the monitor file and open a regular disciplinary file to record the commencement of an active disciplinary investigation. The closure information for the appropriate data base entry is closed code “9” and the regular disciplinary file should contain some reference to the prior monitor file number.

Glossary

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MONITOR CASES

Closing Files

If it becomes obvious that the subject matter of a monitor file will not develop into matters requiring disciplinary investigation, bar counsel may close the monitor file with a closed code action of “1” indicating “dismissed by staff.”

Glossary

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MONITOR CASES

Docketing & Computer Database Requirements

Glossary

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RECIPROCAL DISCIPLINE

Reciprocal Discipline

When a member of The Florida Bar is disciplined by another jurisdiction, we open a file and proceed with reciprocal discipline. Like a felony conviction, it is not necessary to bring the matter before a grievance committee, and it is not necessary for us to prove the underlying facts of the case. Rule 3-7.2(j)(2) . The decision of the other jurisdiction is conclusive proof that respodent is guilty. Rule 3-4.6

The majority of the out-of-state discipline cases are handled by the Tallahassee branch office with the referees being appointed from the judiciary of the second judicial circuit. Venue may be appropriate in other areas when the misconduct was committed within the State of Florida.

Glossary

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Authority

The following Rules Regulating The Florida Bar are the basis for handling complaints against Florida Bar members who have been disciplined by foreign jurisdictions:

3-4.6 Discipline by Foreign or Federal Jurisdiction. A final adjudication in a disciplinary proceeding by a court or other authorized disciplinary agency of another jurisdiction, state or federal, that an attorney licensed to practice in that jurisdiction is guilty of misconduct justifying disciplinary action shall be considered as conclusive proof of such misconduct in a disciplinary proceeding under this rule.

3-7.2(j) Professional Misconduct in Foreign Jurisdiction.

(1) Notice of Discipline by a Foreign Jurisdiction. A member of The Florida Bar disbarred or suspended from the practice of law by a court or other authorized disciplinary agency of another state or by a federal court shall within 30 days after the effective date of disbarment or suspension file with the Supreme Court of Florida a copy of the order or judgment effecting such disbarment or suspension.

(2) Adjudication or Discipline by a Foreign Jurisdiction. In cases of a final adjudication by a court or other authorized disciplinary agency of another jurisdiction, such adjudication of misconduct shall be sufficient basis for the filing of a complaint by The Florida Bar and assignment for hearing before a referee without a finding of probable cause under these rules.

When non members of The Florida Bar are admitted pro hac vice to practice law in Florida courts, those non members subject themselves to the Rules Regulating the Florida Bar. Rule 3-4.1. While the Court cannot suspend the license of one who does not hold a license, any discipline meted out to a pro hac vice lawyer would preclude subsequent pro hac vice admission and would subject the attorney to reciprocal discipline in that attorney’s home state. See rule 2.061(a) of the Rules of Judicial Administration.

Glossary

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Criteria

Reciprocal discipline is the process of imposing discipline on a member of The Florida Bar who has been disciplined by another state or a federal disciplinary agency. This concept has been held inapplicable to disciplinary proceedings initiated by the Securities and Exchange Commission. The Florida Bar v. Calvo; 601 So.2d 1194 (Fla. 1992).

Glossary

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Automatic Finding of Probable Cause

It should be noted that if we charge a violation of Rule 3-7.2(j)(1), the facts must be presented to a grievance committee for a finding of probable cause before the filing of a complaint. The conduct previously adjudicated by the foreign jurisdiction need not be reviewed by a grievance committee.

Glossary

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Preparation, Review & Filing of Complaint

Bar counsel will obtain a copy (preferably certified) of the foreign disciplinary judgment and draft a formal complaint that will be processed as in the manner of other complaints, except that there is no requirement that the complaint be signed by a grievance committee chair. The complaint will be approved by the chief branch discipline counsel and forwarded to staff counsel for review, signature, and filing.

Glossary

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Trial

Even though a judgment of disbarment, suspension, or disciplinary resignation in a foreign jurisdiction is conclusive proof of the facts found in such disciplinary judgment the court has ruled that the decision as to the sanction in Florida is open for review. See, The Florida Bar v. Wilkes, 179 So.2d 193 (Fla. 1965), wherein the court held that it was necessary for the bar to obtain and file the record of the foreign disciplinary proceeding in order to effectuate a truly independent appraisal of the respondent’s fitness to practice law in Florida. Some jurisdictions will not provide their records to us pursuant to their confidentiality rules. In those circumstance bar counsel needs to make the formal request and if our request is denied, we will be able to show our efforts to comply with the requirements of Wilkes.

Glossary

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Board Review

In reciprocal discipline cases, as with in-state member cases, these matters are also required to be reviewed by a designated reviewer regarding any consent judgments or recommendations to the referee at trial. The out-of-state cases are reviewed by out-of-state board of governors members. It is advisable to contact the Tallahassee branch office to check the current status as to the proper board member for referrals.

Glossary

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Executive Committee Authority

Glossary

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Agenda Item Process

Glossary

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Disciplinary Review Committee Action & Report to Board

Glossary

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Reciprocal discipline case are presented to the Board in the same manner as any other Report of Referee.

Glossary

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Debate Items

Glossary

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Roll Call Items

Glossary

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Notice of Board Action

Glossary

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Minutes of Board & Executive Committee Action

Glossary

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Closing FIles

Glossary

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Glossary

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REFEREE MANUAL

Referee Manual

REFEREE MANUALDIRECTORY OF BRANCH OFFICES

TALLAHASSEE BRANCHThe Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300Telephone: (850) 561-5845 Circuits: 1, 2, 3, 4, 8, 14

TAMPA BRANCHThe Florida Bar, 5521 West Spruce Street, Suite C49, Tampa, Florida 33607-5958Telephone: (813) 875-9821 Circuits: 6, 12, 13, 20

ORLANDO BRANCHThe Florida Bar, 1200 Edgewater Drive, Orlando, Florida 32804-6314Telephone: (407) 425-5424 Circuits: 5, 7, 9, 10, 18, 19

FORT LAUDERDALE BRANCHThe Florida Bar, Lake Shore Plaza II, 1300 Concord Terrace, Suite 130, Sunrise,

Florida 33323Telephone: (954) 772-2245 Circuits: 15, 17

MIAMI BRANCHSuite M-100, Rivergate Plaza, 444 Brickell Avenue, Miami, Florida 33131Telephone: (305) 377-4445 Circuits: 11, 16

Revised: December 2005

14

MEMORANDUM

TO: Referees

FROM: Thomas D. Hall, Clerk

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RE: Guide for referees in disciplinary cases

1. PURPOSE

The purpose of this guide is to give you, in condensed form, the information you may find helpful to perform your duties as referee.

This guide is designed to summarize trials by referee in disciplinary proceedings. It is not all inclusive and should not serve as a substitute for an understanding of the basic rules and law concerning grievance proceedings.

A review of the following material may assist you in your duties:

Rules Regulating The Florida Bar

Chapter 1 - GeneralChapter 3 - Rules of DisciplineChapter 4 - Rules of Professional ConductChapter 5 - Rules Regulating Trust Accounts

Citations to Rule xxx in this document are to the Rules Regulating The Florida Bar. The Rules Regulating The Florida Bar may be accessed at www.flabar.org under the Lawyer Regulation tab.

The appropriate case law that may be found is under the heading of Attorney/Client in the Florida Digest.

2. JURISDICTION

Article V, Section 15 of the Florida Constitution gives the Supreme Court of Florida exclusive jurisdiction to regulate the admission of persons to practice law and the discipline of persons so admitted.

The court's regulation of the bar is carried out through the Rules Regulating The Florida Bar, which establish The Florida Bar as an official arm of the court. The referee is appointed by the circuit court's chief judge by order of the Supreme Court. See Rule 3-7.6(a); See also State Bar Assn., 40 So.2d 902 (Fla. 1949); Lewis v. The Florida Bar, 372 So.2d 1121, 1122 (Fla. 1979); Dacy v. Florida Bar, Inc., 414 F.2d 195 (5th Cir. 1969) cert. den. 397 U.S. 909; Pantori, Inc. v. Stephenson, 384 So.2d 1357 (Fla. 5th DCA 1980).

3. PROCEEDINGS BEFORE CASE IS REFERRED TO REFEREE

(a) FINDING OF PROBABLE CAUSE BY GRIEVANCE COMMITTEE OR BOARD OF GOVERNORS

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Normally, before a case is referred to a referee for trial, there must first be a finding by a grievance committee, or by the board of governors, that probable cause exists to believe that the respondent is guilty of misconduct justifying disciplinary action. One exception is the rejection of an admonishment by the respondent. See Rule 3-7.4(n). Other exceptions are listed in Rule 3-3.2(b).

The types of misconduct justifying disciplinary action are described in the Rules of Discipline and the Rules of Professional Conduct.

Please note that the Rules of Professional Conduct not only contain substantive rules, but also have comments intended to fully explain those rules.

(1) BOARD OF GOVERNORS

The Board of Governors of The Florida Bar, on the basis of any report of a grievance committee, may by majority vote find probable cause and direct the filing of a formal complaint against a respondent. See Rule 3-3.2(b) and 3-7.5(c).

(2) GRIEVANCE COMMITTEES

At the time of this writing there are 81 grievance committees in Florida, including the Statewide Advertising Grievance Committee which considers only advertising complaints. Each grievance committee is composed of lawyers and nonlawyers. At least one-third of the committee membership must be nonlawyers. The lawyer members must have been members of The Florida Bar for at least 5 years. See Rule 3-3.4(c).

The purpose of the grievance committee is to conduct investigations into allegations of misconduct by Florida attorneys. See Rule 3-3.4 and 3-7.4.

The grievance committee does not decide whether the lawyer is guilty. It investigates and makes findings as to whether there is PROBABLE CAUSE to warrant further disciplinary action. In many respects, the grievance committee is like a grand jury.

Proceedings before grievance committees are informal and nonadversarial. Technical rules of evidence do not apply to grievance committee proceedings. See Rule 3-7.4(d).

If a grievance committee finds probable cause, bar counsel prepares a complaint for filing with the Supreme Court of Florida. See Rule 3-7.4(l).

(3) PROBABLE CAUSE

Probable Cause is defined as:

A finding by an authorized agency that there is cause to believe that a member of The Florida Bar is guilty of misconduct justifying disciplinary action. See Rule 3-2.1(j).

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4. TRIAL BY REFEREE

(a) PROCEDURES

When a finding of probable cause has been made by the board of governors, a grievance committee, or a grievance committee's report of minor misconduct is rejected, a complaint is prepared by bar counsel and is filed with the Supreme Court of Florida. The chief justice then appoints a circuit or county court judge as referee, or delegates this function to the chief judge of a judicial circuit. See Rule 3-7.6(a).

A trial by referee is similar, in many respects, to a nonjury civil trial. The proceeding is neither civil nor criminal but is a quasi-judicial administrative proceeding. Discovery and the Rules of Civil Procedure apply except as otherwise provided. See Rule 3-7.6(f)(1) and (2). In all cases, the referee shall require the parties to appear at a case management conference within 60 days of appointment. The referee shall then issue a pretrial order reciting the action taken at the conference. See Rule 3-7.69(c).

The referee is not bound by technical rules of evidence. Hearsay evidence is admissible and there is no right to confront witnesses. See The Florida Bar v. Vannier, 498 So.2d 896 (Fla. 1986); The Florida Bar v. Dawson, 111 So.2d 427, 431 (Fla. 1959).

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The respondent and other witnesses may be subpoenaed and required to testify, unless they have a privilege or right properly available to them under federal or state law. Disciplinary proceedings are remedial in nature and a respondent may not properly invoke the Fifth Amendment because of potential disciplinary liability alone. See DeBock v. State, 512 So.2d 164 (Fla. 1987) cert. den., 484 U.S. 1025; Rule 3-7.6(j).

Subpoenas for the attendance of witnesses and production of documentary evidence are issued by the referee and are served in the manner provided by law for service of process. See Rule 3-7.11(d)(1). Subpoenas may not be issued by counsel as that part of the civil rules is inconsistent with the procedure for issuing subpoenas under the Rules of Discipline.

Any person who, without adequate cause, fails to obey a subpoena may be cited for contempt. See Rule 3-7.11(d)(7).

(b) VENUE

The trial shall be held in the county in which an alleged offense occurred or in the county where the respondent resides or practices law or last practiced law in Florida, whichever shall be designated by the Supreme Court of Florida. If respondent is not a resident of Florida and if the alleged offense is not committed in Florida, the trial shall be held in a county designated by the chief justice. See Rule 3-7.6(d).

(c) PROCESS

The mailing by registered or certified mail of papers or notices described in the Rules of Discipline, to the last mailing address of an attorney shown in the official records of The Florida Bar, is sufficient notice and service. See Rule 3-7.11(b) and (c).

(d) DISQUALIFICATION OF REFEREE

A referee may be disqualified from service in the same manner and to the same extent that a trial judge may be disqualified from acting in a judicial capacity. See Rule 3-7.6(h)(8) and see also Chapter 38, Florida Statutes.

(e) WEIGHT AND QUALITY OF EVIDENCE

The evidence to sustain a disciplinary decision against the respondent must be CLEAR AND CONVINCING. It is something less than beyond a reasonable doubt, as required in criminal cases, and something more than a preponderance of the evidence, as required in civil cases. See The Florida Bar v. McCain, 361 So.2d 700, 706 (Fla. 1978); The Florida Bar v. Rayman, 238 So.2d 594, 598 (Fla. 1970).

The grievance committee record may be introduced to establish a prima facia case against the respondent if it is sufficient to sustain the charge. See The Florida Bar v. Junkin, 89 So.2d 481 (Fla. 1956). See also The Florida Bar v. Schneiderman, 285 So.2d 392 (Fla. 1973) (suspension

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was predicated on evidence contained in a grievance committee record, default at the referee trial, and proof of notice in the referee proceedings.)

If a respondent fails to respond to requests for admissions, the requests may be deemed admitted and a finding of guilt based thereon. See The Florida Bar v. Hollingsworth, 376 So.2d 394 (Fla. 1979).

Evidence of prior discipline is admissible against a respondent after a finding of guilt. See Rule 3-7.6(m)(1)(D).

(f) PLEADINGS

Pleadings may be informal. See Rule 3-7.6(g).

(g) INTERLOCUTORY APPEALS

Ordinarily, the Supreme Court of Florida does not entertain interlocutory questions arising in the course of proceedings under the Rules of Discipline. See The Florida Bar v. McCain, 330 So.2d 712 (Fla. 1976); In Re The Florida Bar, 329 So.2d 301 (Fla. 1974).

5. PUBLIC NATURE OF PROCEEDINGS

Cases before a referee are public information. See Rule 3-7.1(a)(2) and (3).

The referee may seal portions of the record in order to preserve the confidentiality of any material provided to The Florida Bar that is confidential and shall not be disclosed pursuant to applicable law. See Rule 3-7.1(d).

6. CONSENT JUDGMENT

If a respondent desires to plead guilty after a formal complaint has been filed, bar counsel, with the approval of the member of the board of governors designated to review the case, may advise the respondent of the discipline the bar will recommend to the referee if a written plea of guilty is entered. See Rule 3-7.9(b)

7. TERMINATION OF PROCEEDINGS BY BOARD

Prior to the receipt of evidence by the referee, the board of governors may terminate disciplinary proceedings before the referee. See Rule 3-7.5(f).

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8. PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS (Rule 3-5.3)

The practice and professionalism enhancement programs were developed as an alternative or addition to existing sanctions. These programs are intended to provide educational opportunities to members of The Florida Bar for enhancing skills and avoiding future misconduct allegations.

The rule specifies that only those disciplinary cases that would otherwise 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.

A respondent who has been the subject of a prior diversion within 7 years is not eligible.

(a) PROGRAMS

1. Ethics School2. Law Office Management Assistance Service (LOMAS)3. Florida Lawyers Assistance, Inc. (FLA, Inc.)4. Continuing Legal Education (CLE) Seminars5. Advertising Workshop6. Stress Management7. Professionalism Workshop8. Trust Accounting Workshop

(b) DIVERSION AT TRIAL LEVEL

The parties may agree that diversion of a disciplinary case to a practice and professionalism enhancement program is an appropriate resolution to a case. Bar approval is obtained in the manner provided in Rule 3-5.3(d). Under these circumstances, a conditional guilty plea may be submitted to the referee for review and approval. See Rule 3-5.3(h)(1). Additionally, a referee may recommend diversion 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. See Rule 3-5.3(h)(2).

(c) COSTS

All recommendations for diversion must state the costs to be paid by respondent. See Rule 3-5.3(e) and (h)(3). Annually, the bar will determine the costs of the practice and professionalism enhancement program(s) and publish the amount of the costs that will be assessed against and paid by the respondent. See Rule 3-5.3(l). The current fee for most professionalism enhancement programs is $750.

LOMAS charges $1,750.00 for all discipline related cases. The respondent pays this amount directly to LOMAS. FLA, Inc. costs are described below in 9(a).

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Continuing Legal Education Seminar costs are based on the seminar the respondent is required to attend. Those costs vary and are paid directly to CLE Registrations upon registration to attend the seminar.

9. DISCIPLINE

If a Referee finds the respondent guilty of any rule violation, a separate hearing to determine the appropriate discipline must be held. The discipline hearing may immediately follow the guilt phase or may be held at a later date. At the discipline hearing, the Referee shall consider all applicable aggravating and mitigating factors, relevant case law and the Florida Standards for Imposing Lawyer Sanctions. The Standards for Imposing Lawyer Sanctions may be accessed at www.flabar.org under the Lawyer Regulation tab.

Bar counsel, however appointed, at all times shall be subject to the direction of the board of governors. Any recommendation made by bar counsel as to discipline is not binding upon the board of governors. See Rule 3-7.5(f) and 3-7.9(e).

Pursuant to Rule 3-5.1, when a judgment has been entered finding a member of The Florida Bar guilty of misconduct, the Supreme Court of Florida may impose one or more of the following disciplinary measures:

(a) PROBATION (Rule 3-5.1(c))

The respondent may be placed on probation for a period of time of not less than 6 months or more than 3 years or for an indefinite period determined by conditions stated in the order. Probation may be imposed alone or together with any other discipline recommended, including admonishment. To ensure enforceability, probationary time frames must be specific, e.g., restitution within 60 days of the order of the supreme court. Probationary conditions may include supervisor reports regarding respondent's client files, completion of CLE courses, LOMAS reviews, achieving a passing score on the ethics portion of the bar exam, reports on trust accounts by a certified public accountant and entering into a contract with FLA, Inc. for drug/alcohol rehabilitation, mental health counseling, or unsupervised probation with a condition that a finding of probable cause or a finding of minor misconduct will result in the revocation of the probation. In order to effectively monitor drug and alcohol addiction and mental health status, referrals to FLA, Inc. must require respondent to enter into a rehabilitation contract with FLA, Inc. FLA, Inc. charges include a one time registration fee of $250.00 and a monthly monitoring fee of $100.

In cases where FLA, Inc. is not a requirement of probation, The Florida Bar will charge a monthly monitoring fee of $100.

(b) ADMONISHMENT (Rule 3-5.1(a) & (b))

An admonishment may be recommended only where minor misconduct is involved. Minor misconduct has been found to be more than a simple, isolated act of negligence that may be actionable as malpractice. See The Florida Bar v. Neale, 384 So.2d 1264 (Fla. 1980). An

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admonishment recommended by a referee may require the respondent to appear before the grievance committee, board of governors, the referee or the Supreme Court of Florida for administration and is made a part of the respondent's permanent disciplinary record. See Rule 3-5.1(a). The Florida Bar does not issue a media release nor publish information in The Florida Bar News about admonishments. The Supreme Court of Florida does not release admonishments for publication by West's Publishing Company.

(c) PUBLIC REPRIMAND (Rule 3-5.1(d))

This type of reprimand is reported in the Southern Reporter and the news media, and may also be administered by appearance before the Supreme Court of Florida, board of governors, referee, or any local judge as ordered by the court. The Florida Bar publishes information on these cases and the court releases these matters for publication by West's Publishing Company.

(d) SUSPENSION (Rule 3-5.1(e))

The respondent may be suspended from the practice of law for a definite period of time or an indefinite period of time (e.g., until a former client is reimbursed). No suspension for a definite period of time shall be in excess of 3 years. A suspension for more than 90 days shall require proof of rehabilitation and may require passage of all or part of the bar exam. This means that the respondent, upon completion of the specific period of suspension, must petition for reinstatement and must prove rehabilitation. See Rule 3-7.10; Reinstatement Manual (provided by The Florida Bar upon request); In Re Dawson, 131 So.2d 472 (Fla. 1961); Petition of Wolf, 257 So.2d 547 (Fla. 1972). The Florida Bar publishes information on these cases and the court releases these matters for publication by West's Publishing Company. An attorney who receives any suspension must comply with Rule 3-5.1(g).

(e) DISBARMENT (Rule 3-5.1(f))

A judgment of disbarment terminates the respondent's status as a member of the bar. No application for admission may be tendered within 5 years after the date of disbarment or such longer period as the Supreme Court of Florida may determine. A former member who has been disbarred may only be readmitted upon full compliance with the rules and regulations governing admission to the bar. Readmission after disbarment requires application to the Florida Board of Bar Examiners. This means the applicant would have to successfully pass the bar examination in addition to other requirements imposed upon all applicants. See The Florida Bar v. Cooper, 429 So.2d 1 (Fla. 1983) (court ordered disbarment for a period of twenty years). Permanently disbarred former members may not be readmitted.

(f) FORFEITURE OF FEES (Rule 3-5.1(h))

A respondent may be ordered to forfeit all or part of a fee by order of the Supreme Court of Florida that adjudicates a respondent guilty of entering into, charging or collecting a prohibited fee or a respondent may accept a report of minor misconduct recommending forfeiture. See Rule 3-5.1(h); see also Rule 4-1.5. In the case of a clearly excessive fee, the excessive amount of the fee may be ordered returned to the client. Fees otherwise prohibited by the Rules Regulating

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The Florida Bar may be ordered forfeited to The Florida Bar Clients' Security Fund to be disbursed in accordance with its rules and regulations.

(g) RESTITUTION (Rule 3-5.1(i))

If a disciplinary order finds that the respondent has received an excessive, illegal or prohibited fee or that respondent has converted trust funds or property, respondent may be ordered, or may agree, to pay restitution to a complainant or other person. See Rule 4-1.5 and Rule 5-1.1.

(h) COSTS (Rule 3-7.6(q))

Discipline costs are $1,250 administrative fee plus actual costs as listed in Rule 3-7.6(q).

10. INCOMPETENCY OR INCAPACITY

Where an attorney is found to be incapable of practicing law or adjudged incompetent, the attorney may be placed on an inactive list for incapacity not related to misconduct and shall refrain from the practice of law even though no misconduct is alleged. In order to become eligible to practice law, the attorney must file a Petition for Reinstatement. See Rule 3-7.13.

11. REFEREE'S REPORT

Within 30 days after the conclusion of a trial before a referee or 10 days after the referee receives the transcripts (if a transcript is ordered), whichever is later, the referee shall submit a report. See Rule 3-7.6(m)(1).

Except in cases arising from a felony conviction, by administrative order appointing the referee, the referee is given 180 days by the Supreme Court of Florida in which to file the report.

In cases arising from a felony conviction or determination of guilt, the Supreme Court will order a temporary suspension upon proof submitted by The Florida Bar that the member has been convicted of a felony. A lawyer who has been found guilty but the adjudication of guilt has been withheld, is treated the same as a lawyer who has been adjudicated guilty. See Rule 3-7.2(a)(2 and 3). If the suspended lawyer files a Petition to Modify or Terminate Suspension, the Court will appoint or direct the appointment of a referee who must hold a hearing within 7 days of appointment and submit a report and recommendation to the Supreme Court within 7 days of the hearing. These time limits may be waived by the referee or Supreme Court if a written request for waiver is made by the suspended lawyer. See Rule 3-7.2(k).

If the suspended lawyer does not file a Petition to Modify or Terminate Suspension, the Court will appoint or direct the appointment of a referee. The referee must hold a hearing and file a report and recommendation as to the appropriate sanction within 90 days of assignment. See Rule 3-7.2 (h)(1 and 2).

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12. FILING THE REFEREE'S REPORT

The referee's report and the record, including pleadings, the transcript (if a transcript is ordered), and all exhibits, are sent to the Supreme Court of Florida by the referee. The record is expected to be transmitted to the court in a well organized, properly indexed form. Copies of the referee's report are served on all parties. If the respondent is not represented by counsel, a copy of the report must be sent to the respondent. In addition, a copy of the record should be sent to bar counsel and a copy of the report to staff counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee 32399-2300. See Rule 3-7.6(m)(2).

All submissions of the report of referee to the court must be via e-mail. Electronic submissions via e-mail shall be attached to an e-mail sent to [email protected]. This e-mail address is for this purpose only. The Clerk's Office will not respond to e-mails sent to this address. Pleadings sent to this address will not be considered a filing. The subject line of the e-mail shall contain the Supreme Court case number, if one has been assigned, or the style of the case, if a case number has not bee assigned, in substantially the following format: "Filing in SC00-0" or "Filing in Doe v. Roe." The document must be e-mailed the same day the original paper copy of the document is filed or served. The Court requires the report of referee to be prepared in 14 point Times New Roman type and accompanied and formatted in Word, if the referee has the technology to do so. The Florida Bar may assist in this respect, if the referee requests.

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THE FLORIDA BAR,

Complainant,Case No. (Supreme Court Case No.)

v.TFB File No. (Bar File No.)

(ATTORNEY,)

Respondent._________________________/

NOTICE OF HEARING

TO: (BAR ATTORNEY) (ATTORNEY)(ADDRESS) (ADDRESS)

TIME: (TIME a.m./p.m. (EST/CT), DAY, DATE, DATE)

PLACE: (Place)

PLEASE TAKE NOTICE that the above-styled matter will come on for

hearing before the Honorable (JUDGE), duly appointed Referee, at the time and

place mentioned above. (HOUR/HOURS HAS/HAVE) been set aside to hear

(REASON FOR HEARING). A court reporter has been reserved.

I HEREBY CERTIFY that a copy of the foregoing Notice was mailed on this ___

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day of ______________, 20__, to the above-named addressee(s).

________________________________

(Judge)(Circuit or County )(ADDRESS)

23

[NOTE: Where respondent is not represented by counsel, respondent's copy should be served by certified mail, return receipt requested.]

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THE FLORIDA BAR,



(ATTORNEY)

Respondent. /

REPORT OF THE REFEREE

I. SUMMARY OF PROCEEDINGS

Pursuant to the undersigned being duly appointed as referee to conduct

disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the

following proceedings occurred:

On [date formal complaint filed], The Florida Bar filed its Complaint against

Respondent as well as its Request for Admissions in these proceedings. On [final

hearing date], a final hearing was held in this matter. All of the aforementioned

pleadings, responses thereto, exhibits received in evidence and this Report

constitute the record in this case and are forwarded to the Supreme Court of

Florida.

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II. FINDINGS OF FACT

A. Jurisdictional Statement. Respondent is, and at all times mentioned

during this investigation was, a member of The Florida Bar, subject to the

jurisdiction and Disciplinary Rules of the Supreme Court of Florida.

B. Narrative Summary Of Case.

[Insert Summary of Facts.]

III. RECOMMENDATIONS AS TO GUILT.

I recommend that Respondent be found guilty of violating Rules [INSERT]

of the Rules of Discipline of The Florida Bar; and Rules [INSERT] of the Rules of

Professional Conduct of The Florida Bar.

IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS

I considered the following Standards prior to recommending discipline:

[INSERT]

V. CASE LAW

I considered the following case law prior to recommending discipline:

[INSERT]

VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BEAPPLIED

I recommend that Respondent be found guilty of misconduct justifying

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disciplinary measures, and that (he/she) be disciplined by:

A. [Proposed discipline.]

B. Payment of The Florida Bar's costs in these proceedings.

VII. PERSONAL HISTORY, PAST DISCIPLINARY RECORD

Prior to recommending discipline pursuant to Rule 3-7.6(k)(1), I considered

the following:

A. Personal History of Respondent:

Age: [Years old]

Date admitted to the Bar:

B. Aggravating Factors:

Prior Discipline:

C. Mitigating Factors:

VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED

I find the following costs were reasonably incurred by The Florida Bar:

A. Grievance Committee Level

Court Reporter's Fees $(Amount)Bar Counsel Travel (Amount)Investigative Costs (Amount)Photocopies (Amount)

Subtotal $(Amount)

B. Referee Level

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Administrative Costs $1,250.00Court Reporter's Fees (Amount)Bar Counsel Travel (Amount)Investigative Costs (Amount)Photocopies (Amount)

Subtotal $(Amount)

TOTAL $(Amount)

It is recommended that such costs be charged to respondent and that interest at the

statutory rate shall accrue and be deemed delinquent 30 days after the judgment in

this case becomes final unless paid in full or otherwise deferred by the Board of

Governors of The Florida Bar.

_________________________________(Judge), Circuit Judge/Referee(Address)


I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32301, and that copies were mailed by regular U.S. Mail to JOHN ANTHONY BOGGS, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300; (Name of Bar Counsel), Bar Counsel, The Florida Bar, (Address); and (Respondent or R's Counsel), Respondent, at (his/her record Bar address) of (R's or counsel's address), on this ______ day of ________________, 20____.

_________________________________(Judge), Referee

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THE FLORIDA BAR,

Complainant,Case No.(Supreme Court Case No.)


(ATTORNEY),

Respondent._________________________/


Respondent, [NAME], files this Conditional Guilty Plea for Consent

Judgment pursuant to Rule 3-7.9, Rules of Discipline of The Florida Bar, and says:

1. Respondent is, and at all times was, a member of The Florida Bar,

subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. Respondent admits that he has violated Rules [insert rules violated],

Rules of Professional Conduct, by the following acts:

[Facts from complaint - single space - do not indent paragraphs]

3. As an appropriate discipline for such misconduct, respondent agrees

to the imposition of [Agreed Discipline].

4. Respondent acknowledges that this Conditional Guilty Plea for

Consent Judgment is tendered freely, voluntarily and without fear or threat of

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coercion.

5. Respondent acknowledges that he has been afforded all procedural

and substantive due process guarantees regarding these disciplinary proceedings,

and that for the purpose of tendering this Conditional Guilty Plea for Consent

Judgment, respondent hereby waives any objections relative to the denial of the

same.

6. If this plea is not approved by the Supreme Court of Florida, it is of no

effect and neither the plea nor the statements contained herein can be used against

respondent in any way.

7. Respondent agrees to pay the costs incurred by The Florida Bar in

bringing this action when this Consent Judgment is tendered. If this plea is

accepted, respondent agrees to pay all reasonable costs incurred by The Florida Bar

in bringing this case, including administrative costs. Respondent further agrees not

to seek avoidance of payment of those costs through bankruptcy.

8. Should the Supreme Court of Florida approve this Conditional Guilty

Plea for Consent Judgment, respondent hereby agrees and acknowledges that same

will not be the subject of future modification.

_____________________ ______________________________DATE (ATTORNEY)

Respondent(ADDRESS)

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Number (Respondent's Bar No.)

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THE FLORIDA BAR,



(ATTORNEY),

Respondent._________________________/

WITNESS SUBPOENA FOR TRIAL

The State of Florida:

TO: (NAME)(ADDRESS)

YOU ARE HEREBY COMMANDED to appear before this Court before the Honorable (Judge), (Circuit/County) Judge/Referee, (room number/floor/or chambers), at the (county) County Courthouse, (address), (City), Florida, on (day of week) DAY, the (date) day of (month), (year), at (time // a.m. or p.m.), (EST/CST), and continuing thereafter until released, to testify and give evidence as a witness on behalf of The Florida Bar in the above-entitled action. If you fail to appear, you may be held in contempt of Court.

You are subpoenaed to appear by the following attorney, (Name of Bar counsel), and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

Persons with a disability who need special accommodation should contact the secretary of the attorney who has requested this subpoena no later than seven (7) days before the trial.

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Dated this _______ day of __________________, 20___.

__________________________________(JUDGE)(Circuit/County) Judge/Referee(ADDRESS)

Re: TFB File No. (Bar File No.)

RETURN OF SERVICE

I HEREBY CERTIFY that the foregoing subpoena in TFB File No. (Bar File No.) was served this ________ day of ________________, 20___,by ______________________________________.

(method of service)

_________________________________________

_________________________________________Signature and Title of Person Making Service

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This subpoena is issued pursuant to the request of (Name of Bar Counsel), Bar Counsel, The Florida Bar, (Address), (850)(Telephone). (Ext. No.) or (800)342-8060, ext. (Ext. No.). Any questions or problems arising in connection with service or cooperation with this subpoena should be directed to (Mr./Ms. Name of Bar Counsel).

24Y:\DEPTS\LR\MANUALS\REFEREE MANUAL.DOC

OATH OF COURT REPORTER

Do you solemnly swear that you will faithfully and accurately report the present proceeding to the best of your ability as directed by the presiding officer herein, and that you will not discuss this proceeding, disclose its existence nor the identity of the accused attorney before any unauthorized person, under the penalty of being held in contempt of the Supreme Court of Florida?

ANSWER: "I do."

OATH OF WITNESS

(Name of Witness), before testifying, I will ask you to take an oath. If you believe criminal activity is involved, you should discuss the facts involving your testimony with the appropriate Federal or State prosecuting authorities. With this in mind, do you solemnly swear the testimony you will give in this proceeding will be the truth.

ANSWER: "I do."

OATH OF ACCUSED ATTORNEY (if appropriate)

I ADVISE YOU THAT THE OATH THAT I AM ABOUT TO ADMINISTER DOES NOT PREVENT YOU FROM REPORTING TO ANY STATE ATTORNEY OR U.S. ATTORNEY, ANY MATTERS INVOLVING YOUR TESTIMONY WHICH YOU BELIEVE TO BE PERTINENT TO SUCH PROSECUTING ATTORNEY'S DUTIES TO INVESTIGATE AND PROSECUTE CRIMINAL ACTIVITY. Do you solemnly swear the testimony you will give in this proceeding will be the truth, the whole truth and nothing but the truth.

- 340 -

ANSWER: "I do."

Glossary

- 341 -

REINSTATEMENT MANUAL

Reinstatement Manual

This manual is public record and as such a copy of this manual is available to each petitioner for reinstatement (or petitioner's counsel), each referee assigned to hear a reinstatement proceeding, and each bar counsel to act in a reinstatement proceeding. The manual is intended to acquaint all interested individuals with reinstatement rules and procedures of The Florida Bar. This manual is intended to be only a guide and a starting point for persons interested in determining the requirements of various reinstatement procedures. The Florida Bar makes no warranties about the content hereof. Suggestions for changes or additions to the manual are solicited.

The contents of this manual cannot be used to create obligations or rights that do not currently exist and cannot be used to defeat obligations or rights that are otherwise applicable. The failure of anyone to follow the suggestions or requirements of this manual shall not be an independent basis for action under the Rules Regulating The Florida Bar.

(CAVEAT : Because the rules covering reinstatement are amended from time to time, readers of this manual are urged to consult the current Rules Regulating The Florida Bar before filing a petition for reinstatement.)

Reinstatement

These proceedings are commenced by the filing of a petition with the Supreme Court of Florida and involve the process of appointment of a referee and report to the court. The Rules Regulating The Florida Bar apply.

Readmission

These proceedings are commenced by the filing of an application for readmission with the Florida Board of Bar Examiners. The Rules Governing Admission to the Bar apply.

Glossary

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Directory of Branch Offices

DIRECTORY OF BRANCH OFFICES

TALLAHASSEE BRANCHThe Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300; Telephone: (850) 561-5845 Circuits: 1, 2, 3, 4, 8, 14

TAMPA BRANCHThe Florida Bar, 5521 West Spruce Street, Suite C-49, Tampa, Florida 33607-5958; Telephone: (813) 875-9821 Circuits: 6, 12, 13, 20

ORLANDO BRANCHThe Florida Bar, 1200 Edgewater Drive, Orlando, Florida 32804-6314; Telephone: (407) 425-5424 Circuits: 5, 7, 9, 10, 18, 19

FORT LAUDERDALE BRANCHThe Florida Bar, Cypress Financial Center, Suite 900, 5900 North Andrews Avenue, Ft. Lauderdale, Florida 33309; Telephone: (954) 772-2245Circuits: 15, 17

MIAMI BRANCHSuite M-100, Rivergate Plaza, 444 Brickell Avenue, Miami, Florida 33131; Telephone: (305) 377-4445 Circuits: 11, 16

Glossary

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Reinstatement Following Discipline

In general,

. . . reinstatement proceedings are governed by the rules in effect at the time of application for reinstatement, unless the original discipline opinion otherwise provides or unless the rules at the time of disbarment otherwise provide.

The Florida Bar re Kimball, 425 So.2d 531, 533 (Fla. 1982).

Glossary

- 344 -


Disbarment

Disbarment. Unless the rules of discipline in effect at the time of disbarment or the opinion finding disbarment provide otherwise, readmission, not reinstatement, following disbarment is pursuant to rule 3-7.10(n), Rules Regulating The Florida Bar. Rule 3-7.10(n), provides that a former member who has been disbarred "may be admitted again only upon full compliance with the rules and regulations governing admission to the bar." Thus, disbarred members must apply to the Florida Board of Bar Examiners for readmission and successfully pass the bar examination.

Glossary

- 345 -


Resignation

Disciplinary Resignation. Pursuant to the court's ruling in Kimball, members who have resigned in lieu of discipline must seek readmission, not reinstatement, unless provided otherwise in the opinion allowing resignation or the rules in effect at the time of resignation. Rule 3-7.10(n) provides that former members who have resigned pursuant to rule 3-7.12 may be readmitted in the same matter as described regarding disbarment.

Supreme Court of Florida ruled in The Florida Bar re Holober, 657 So.2d 1143, 1144--5 (Fla. 1995), that:

[s]ince Holober's resignation was accepted pursuant to the former Florida Bar Integration Rule, article XI, rule 11.08(5), we find that rule 3-7.10 is by reason of its very language inapplicable.

Thus, under the current rules and case law, only if the former member has resigned pursuant to Rule 3-7.12 will the member have to reapply to the Florida Board of Bar Examiners; all others will apply for reinstatement pursuant to the rules in effect at the time of resignation. Holober reverses the court's 1991 position that all former members who resigned may only be readmitted upon full compliance with the rules and regulations governing admission to the bar.

Glossary

- 346 -


Suspension

Suspension. "An attorney who has been suspended may be reinstated to membership in The Florida Bar pursuant to this rule [3-7.10]. The proceedings under this rule are not applicable to suspension for nonpayment of membership fees." Rule 3-7.10(a), Rules Regulating The Florida Bar.

Glossary

- 347 -


Form of Petition

Petitions for reinstatement filed pursuant to rule 3-7.10 are now filed with the Supreme Court of Florida in the form prescribed by rule 3-7.10(b) and (e) and must be accompanied by a written authorization to the District Director of the Internal Revenue Service allowing release of the petitioner's tax returns for the past 5 years or since admission to the bar, whichever is greater. A copy of all disciplinary judgments previously entered against petitioner should also be attached. At this time, a $500 cost deposit must be paid to The Florida Bar in Tallahassee. A sample petition is included as Appendix C to this manual.

Glossary

- 348 -


Investigation by Bar Counsel

Once the petition for reinstatement has been served on The Florida Bar, bar counsel will be assigned. Bar counsel, when investigating a petition for reinstatement will, among other things, follow the following procedures:

furnish copies of the petition for reinstatement to local board members and board members where the original disciplinary case was processed if different from the reinstatement proceedings;

furnish copies of the petition to local grievance committees and the grievance committee that processed the original disciplinary case in the area where the misconduct occurred;

furnish copies of the petition to local bar association presidents;

contact and interview complainants in the original disciplinary case;

contact counsel for former complainants;

contact the prosecutor if the case was a criminal matter;

contact the judge who presided over the case, if criminal;

contact all witnesses in the original or criminal proceedings;

contact probation officers, if the case was criminal;

contact employers;

contact any persons involved with the petitioner in civil litigation; and

publish the notice of the proceedings in the area where the original case was processed and The Florida Bar News. This notice requests anyone who has a comment to come forward and advise the bar of such. The notice will recite the discipline imposed, a summary of facts leading thereto, and any terms of probation.

Bar counsel may state on the record what efforts the bar took to investigate the petitioner's fitness. Philosophical reasons for opposing the petition will be considered. These include the gravity of the misconduct that led to the suspension, or the short time duration between the suspension and the petition for reinstatement. Bar counsel may request that a staff investigator assist by conducting an investigation concerning the petitioner's activities since suspension.

At the conclusion of the hearing on petitioner's fitness to resume the practice of law, the referee will file with the Supreme Court of Florida a report that includes findings of fact and a

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recommendation as to whether the petitioner is qualified to resume the practice of law. Either party may seek review of the referee's report. If the court finds the petitioner to be fit to resume the practice of law, the judgment shall reinstate petitioner to the practice of law in Florida. The judgment, however, may be conditioned upon the payment of costs, the payment of restitution to parties harmed by the petitioner's misconduct, or such other conditions as the court deems appropriate. See e.g., The Florida Bar re Kimball, 425 So.2d 531 (Fla. 1983).

No petition for reinstatement shall be filed within one year following an adverse judgment on a previous petition for reinstatement.

Glossary

- 350 -


Procedure Once Petition is Filed

Once the petition has been filed with a copy served on staff counsel at The Florida Bar in Tallahassee, a copy of the petition, along with proof of payment of a deposit in the amount of $500 paid to The Florida Bar, a referee is appointed to conduct a hearing. Rule 3-7.10(l) (5).

"The chief justice shall refer the petition for reinstatement to a referee for hearing; provided, however, that no such reference shall be made until evidence is submitted showing that all costs assessed against the petitioner in all prior disciplinary proceedings have been paid and restitution has been made." Rule 3-7.10(f).

Copies of the petition will be furnished to local board members, local grievance committees, local bar association presidents and other persons who may be particularly interested in the proceedings. These persons are asked to direct any comments about the petitioner to the appointed bar counsel. Rule 3-7.10(l) (4).

The referee to whom the petition for reinstatement is referred shall conduct a hearing in the same manner as a disciplinary trial, but pleadings other than the petition are not required. The matter to be decided is the fitness of the attorney to resume the practice of law. Any persons to whom notice is given, any other interested persons or any local bar association may appear before the referee in support of or in opposition to the petition at the times fixed for hearings. The findings of the referee should relate to matters tending to show petitioner's rehabilitation and present fitness to resume the practice of law. Rule 3-7.10(f).

The burden of proof is on the petitioner who must establish entitlement to reinstatement without conditions. The Florida Bar re Cohen, 560 So.2d 785 (Fla. 1990). The petitioner for reinstatement must sustain the burden of proving the fitness in terms of integrity as well as professional competency. The evidence presented must be clear and convincing. In determining the fitness of the petitioner to resume the privilege of practicing law, emphasis is placed upon the protection of the public and The Florida Bar. Petitioner must establish conduct to justify the restored confidence of the public generally, the restored confidence of petitioner's professional contemporaries and the restored confidence of the supreme court. In re Dawson, 131 So.2d 472 (Fla. 1961); Petition of Wolf, 257 So.2d 547 (Fla. 1972).

The essential elements of proof for reinstatement will vary with the particular case depending upon the nature of the offense. Rule 3-7.10(f) catalogues the issues relevant to proof of rehabilitation.

Glossary

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Reinstatement Following Incapacity

Attorneys placed on the inactive list for incapacity not related to misconduct as provided in rule 3-7.13, Rules Regulating The Florida Bar, are also reinstated as discussed in this manual. The rule concerning incapacity states:

(a) Proceedings Without Adjudication of Incompetence or Hospitalization Under the Florida Mental Health Act. Whenever an attorney 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 for such reason even though no misconduct is alleged or proved.

Proceedings under this rule shall be processed under the Rules of Discipline in the same manner as proceedings involving acts of misconduct.

(b) Proceedings Upon Adjudication of Incompetence or Hospitalization Under the Florida Mental Health Act. A lawyer who has been adjudicated insane or mentally incompetent or hospitalized under the Florida Mental Health Act shall be classified as an inactive member and shall refrain from the practice of law. Upon receipt of notice that a member has been adjudicated incompetent or hospitalized under the Florida Mental Health Act, The Florida Bar shall file notice thereof with the Supreme Court of Florida. Thereafter the court shall issue an order classifying the member as an inactive member.

If an order of restoration is entered by a court having jurisdiction or the lawyer is discharged from hospitalization under the Florida Mental Health Act, the lawyer may be reinstated in the same manner as in proceedings for reinstatement after suspension for acts of misconduct.

Glossary

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Reinstatement Following Delinquency

Glossary

- 353 -


Nonpayment of Annual Membership Fees

Rule 1-3.7, Rules Regulating The Florida Bar, deals with petitions for reinstatement of members delinquent for nonpayment of annual membership fees. Rule 1-3.7(d) provides that members who have been deemed delinquent for a period of 5 years or longer shall not be reinstated except upon application to and approval by the Florida Board of Bar Examiners.

This rule provides for action by the Executive Director of The Florida Bar, the board of governors, and the Florida Board of Bar Examiners. Reinstatements following delinquency for nonpayment of annual membership fees are not otherwise dealt with in this manual.

Glossary

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Noncompliance with CLE Requirements

"Any member deemed delinquent for failure to meet the continuing legal education requirement may be reinstated by the executive director upon a showing that the noncompliance has been corrected and upon payment to The Florida Bar of a uniform reinstatement fee, as established by the board of governors." Rule 6-10.6, Rules Regulating The Florida Bar.

Glossary

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Noncompliance with Basic Skills Course Requirement

"Any member deemed delinquent for failure to meet BSCR [Basic Skills Course Requirement] may be reinstated by the Executive Director of The Florida Bar or Board of Governors of The Florida Bar upon a showing that the noncompliance has been corrected and upon payment of a uniform reinstatement fee, as established by the Board of Governors of The Florida Bar." Rule 6-12.6, Rules Regulating The Florida Bar.

Glossary

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Summary Procedures for Uncontested Reinstatement

Rule 3-7.10(g)(4) allows for expedited uncontested reinstatement cases. It enables bar counsel to stipulate to reinstatement, but only after completing discovery and other due diligence to confirm that no evidence exists upon which denial of reinstatement may be based. Hence, bar counsel should not determine whether summary procedures are appropriate until after completing each item outlined in the investigation checklist provided in Appendix D. Bar counsel must also gain the approval of the designated reviewer and staff counsel, via a consent judgment memo that details the results of the investigation, before stipulating to the reinstatement, including conditions thereon. The stipulation and the bar's affidavit of costs should be filed with the referee. A proposed report of referee should also be provided to the referee.

Glossary

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Reinstatement and Readmission Procedures Rule 3-1.10

APPENDIX A

RULE 3-7.10 REINSTATEMENT AND READMISSION PROCEDURES

(a) Reinstatement; Applicability. An attorney who has been suspended or placed on the inactive list for incapacity not related to misconduct may be reinstated to membership in The Florida Bar pursuant to this rule. The proceedings under this rule are not applicable to suspension for nonpayment of membership fees.

(b) Petitions; Form and Contents.

(1) Filing . The original petition for reinstatement and 1 copy thereof shall be in writing, verified by the petitioner, and addressed to and filed with the Supreme Court of Florida. A copy shall be served on Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300.

(2) Form and Exhibits . The petition shall be in such form and shall be accompanied by such exhibits as provided for elsewhere in this rule. The information required concerning the petitioner may include any or all of the following matters in addition to such other matters as may be reasonably required to determine the fitness of the petitioner to resume the practice of law: criminal and civil judgments, disciplinary judgments, copies of income tax returns together with consents to secure original returns, occupation during suspension and information in connection therewith, financial statements, and statement of restitution of funds that were the subject matter of disciplinary proceedings. In cases seeking reinstatement from incapacity, the petition shall also include copies of all pleadings in the matter leading to placement on the inactive list and all such other matters as may be reasonably required to demonstrate the character and fitness of the petitioner to resume the practice of law.

(c) Deposit for Cost. The petition shall be accompanied by proof of a deposit paid to The Florida Bar in such amount as the board of governors shall prescribe to ensure payment of reasonable costs of the proceedings, as provided elsewhere in this rule.

(d) Reference of Petition For Hearing. The chief justice shall refer the petition for reinstatement to a referee for hearing; provided, however, that no such reference shall 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 duties of such attorneys shall be to appear at the hearings and to prepare and present to the referee evidence that, in the opinion of the referee or such attorneys,

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should be considered in passing upon the petition.

(f) Determination of Fitness by Referee Hearing. The referee to whom the petition for reinstatement is referred shall conduct the hearing as a trial, in the same manner, to the extent practical, as provided elsewhere in these rules. The matter to decide shall be the fitness of the petitioner to resume the practice of law. In determining the fitness of the petitioner to resume the practice of law, the referee shall 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 shall be 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 shall be considered as 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; and

(N) any other conduct that reflects adversely upon the character or fitness of the

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applicant.

(2) Determination of Character and Fitness . In addition to other factors in making this determination, the following factors should 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 . Any petitioner for reinstatement from discipline for prior misconduct shall be required to produce clear and convincing evidence of such 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;

(G) positive action showing rehabilitation by such things as a person’s occupation,

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religion, or community or civic service.

Merely showing that an individual is now living as and 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. 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.

(g) Hearing; Notice; Evidence.

(1) Notice . The referee to whom the petition for reinstatement is referred shall fix a time and place for hearing, and notice thereof shall be given at least 10 days prior to the hearing to the petitioner, to attorneys representing The Florida Bar, and to such other persons as may be designated by the referee to whom the petition is referred.

(2) Appearance . Any persons to whom notice is given, any other interested persons, or any local bar association may appear before the referee in support of or in opposition to the petition at any time or times fixed for hearings thereon.

(3) Failure of Petitioner to be Examined . For the failure of the petitioner to submit to examination as a witness pursuant to notice given, the referee shall dismiss the petition for reinstatement unless good cause is shown for such failure.

(4) Summary Procedure . If after the completion of discovery bar counsel is unable to discover any evidence on which denial of reinstatement may be based and if no other person provides same, bar counsel may, with the approval of the designated reviewer and staff counsel, stipulate to the issue of reinstatement, including conditions thereon. The stipulation shall include a statement of costs as provided elsewhere in these Rules Regulating The Florida Bar.

(h) Prompt Hearing; Report. The referee to whom a petition for reinstatement has been referred by the chief justice shall proceed to a prompt hearing, at the conclusion of which the referee shall make and file with the Supreme Court of Florida a report that shall include the findings of fact and a recommendation as to whether the petitioner is qualified to resume the practice of law. The referee shall file the report and record in the Supreme Court of Florida and shall serve a copy of the report and record on bar counsel and a copy of the report only on all other parties. Bar counsel shall make a copy of the record, as furnished, available to other parties upon request and payment of actual costs of reproduction.

(i) Review. Review of referee reports in reinstatement proceedings shall 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 shall be dismissed. If the petitioner is found fit to resume the practice of law, the referee shall enter a report recommending, and the court may

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enter an order of, reinstatement of the petitioner in The Florida Bar; provided, however, that the reinstatement may be conditioned upon the payment of all or part of the costs of the proceeding and upon 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; and further provided, however, if suspension or incapacity of the petitioner has continued for more than 3 years, the reinstatement may be conditioned upon the furnishing of such proof of competency as may be required by the judgment in the discretion of the Supreme Court of Florida, which proof may include certification by the Florida Board of Bar Examiners of the successful completion of an examination for admission to The Florida Bar subsequent to the date of the suspension or incapacity.

(k) Successive Petitions. No petition for reinstatement shall be filed within 1 year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person. In cases of incapacity no petition for reinstatement shall be filed within 6 months following 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 upon a showing of compliance with specified conditions.

(2) Style of Petition . Petitions shall be styled in the Supreme Court of Florida and an original and 1 copy filed therewith. A copy shall be served on Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300.

(3) Contents of Petition . The petition shall be verified by the petitioner and shall be 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 shall be furnished on a separate sheet. The petition shall have attached as an exhibit a true copy of all disciplinary judgments previously entered against the petitioner. It shall 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 upon which the suspension or incapacity was based, together with the date of such 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 such disciplinary proceedings or of the trial judge, complaining witnesses, and prosecuting attorney, if suspension was based upon conviction of a felony or misdemeanor involving moral turpitude;

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(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 such relations and employments;

(E) a statement showing the approximate monthly earnings and other income of the petitioner and the sources from which all such earnings and income were derived during said period;

(F) a statement showing all residences maintained during said period, with names and addresses of landlords, if any;

(G) a statement showing all financial obligations of the petitioner 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 arrest or prosecution of the petitioner during said period for any crime, whether felony or misdemeanor, together with the names and addresses of complaining witnesses, prosecuting attorneys, and trial judges;

(J) a statement as to whether any applications were made during said period for a license requiring proof of good character for its procurement; and, as to each such application, the date and the name and address of the authority to whom it was addressed and the disposition thereof;

(K) a statement of any procedure or inquiry, during said period, 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 the disposition thereof and the name and address of the authority in possession of the record thereof;

(L) a statement as to whether any charges of fraud were made or claimed against the petitioner during said period, whether formal or informal, together with the dates and names and addresses of persons making such 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

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civil action wherein 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 said action or actions; and

(O) a statement showing what amounts, if any, of the costs assessed against the accused attorney 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 . Upon the appointment of a referee and bar counsel, copies of the petition shall be furnished by the bar counsel to local board members, local grievance committees, and to such other persons as are mentioned in this rule. Persons will be asked to direct their comments to bar counsel. The proceedings and finding of the referee shall 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 such proposed reinstatement upon the administration of justice and purity of the courts and confidence of the public in the profession.

(5) Costs Deposit . The petition shall be accompanied by a deposit for costs of $500.

(m) Costs.

(1) Taxable Costs . Taxable costs of the proceedings shall 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 shall have discretion to award costs and absent

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an abuse of discretion the referee’s award shall 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 or whose petition for disciplinary resignation 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 or disciplinary resignation 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 such longer period of time as the court might determine in the disbarment order. An order of disbarment that states the disbarment is permanent shall preclude readmission to The Florida Bar.

(2) Readmission After Disciplinary Resignation . In the case of a disciplinary resignation, no readmission application may be filed until 3 years after the date of the order of the Supreme Court of Florida that accepted such disciplinary resignation or such additional time as the attorney may have stated in a petition for disciplinary resignation. No application for readmission may be filed until all costs in disciplinary cases that were dismissed because of the disciplinary resignation have been paid by the applicant for readmission. If an attorney’s petition for disciplinary resignation states that it is without leave to apply for readmission, such condition shall preclude any readmission.

Glossary

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Incapacity Not Related to Misconduct Rule 3-7.13

RULE 3-7.13 INCAPACITY NOT RELATED TO MISCONDUCT(a) Proceedings Without Adjudication of Incompetence or Hospitalization Under

the Florida Mental Health Act. Whenever an attorney 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 for such reason even though no misconduct is alleged or proved. Proceedings under this rule shall be processed under the Rules of Discipline in the same manner as proceedings involving acts of misconduct.

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.

(b) Proceedings Upon Adjudication of Incompetence or Hospitalization Under the Florida Mental Health Act. A lawyer who has been adjudicated insane or mentally incompetent or hospitalized under the Florida Mental Health Act shall be classified as an inactive member and shall refrain from the practice of law. Upon receipt of notice that a member has been adjudicated incompetent or hospitalized under the Florida Mental Health Act, The Florida Bar shall file notice thereof with the Supreme Court of Florida. Thereafter the court shall issue an order classifying the member as an inactive member.

If an order of restoration is entered by a court having jurisdiction or the lawyer is discharged from hospitalization under the Florida Mental Health Act, the lawyer may be reinstated in the same manner as in proceedings for reinstatement after suspension for acts of misconduct.

Glossary

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Sample Petition

SAMPLE PETITION

The following is provided to offer guidance in the preparation of a petition for reinstatement.It is not all inclusive, however, and individual petitions may require more or varied information.


The Florida Bar,

Re: RESPONDENT, Case No. (SC WILL ASSIGN #)

Petitioner.

_______________________________________/

PETITION FOR REINSTATEMENT

(Respondent), [OPTIONAL: if represented -- by undersigned counsel] respectfully files this petition

for reinstatement to membership in good standing in The Florida Bar pursuant to rule 3-7.10, Rules

of Discipline.

proof of remittance to The Florida Bar of the sum of $500 representing a deposit for costs;

proof of payment of all disciplinary costs assessed against respondent; and

authorization on separate sheet to the District Director of Internal Revenue Service

for release of petitioner's federal income tax returns since admission to the bar.

Also attached as an exhibit is a true copy of all disciplinary judgments previously entered against the

petitioner.

The following additional information is furnished in compliance with rule 3-7.10.

(1) name, age, address, dependents;

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(2) date of suspension and offense;

(3) name(s) and addresses of complainant(s) and referee(s) in disciplinary proceedings;

(4) occupation since suspension, names and addresses of partners, dates and duration of employment;

(5) monthly income and other earnings;

(6) residence(s), with name(s) and address(es) of landlord(s) (since suspension or separation from the bar);

(7) financial obligations and creditors (including judgments);

(8) statement of restitution to former clients;

(9) record of arrests and prosecutions;

(10) applications for licenses requiring proof of good character;

(11) proceedings involving standing as member of any organization or as license holder subsequent to disbarment;

(12) proceedings or charges involving claims of fraud subsequent to suspension;

(13) grounds for reinstatement (Petition of Wolf, 257 So.2d 547 (Fla. 1972); In re Hodges, 229 So.2d 257 (Fla. 1969); In re Fussell, 179 So.2d 852, (Fla. 1965), 189 So.2d 881 (Fla. 1966).); and

(14) all civil actions.

WHEREFORE, Petitioner prays that he/she be reinstated as a member in good standing of

The Florida Bar.

______________________________________(RESPONDENT)

The foregoing instrument was acknowledgedbefore me this ____day of ______________,20____, by __________________________,Who is personally known to me or who has

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produced ____________________________as identification.

____________________________________Notary Public

Glossary

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Petition for Reinstatement - Checklist

Check ListPetition for Reinstatement

1. Review Petition for Reinstatement2. Review Reinstatement Manual3. Review Referee file4. Make appointment with Petitioner for review of Petition for Reinstatement5. Interview Petitioner6. Prepare letters to local newspapers7. Prepare letter to The Florida Bar News8. Prepare letters to the Designated Reviewers and local bar association presidents9. Submit letter to the Internal Revenue Service10. Review public records - Clerk of the Circuit Court11. Review Civil Circuit Court records12. Review Criminal Court records13. Review U. S. Bankruptcy Court records14. Interview references15. Interview employers16. Check with FLA, Inc.for monetary and sustantive compliance.17. Interview prosecutor, judge, etc. if criminal violation18. Interview original complainant19. Moral conduct - interview spouse, etc.20. Check DMV records if DUI related conduct21. Conduct NCIC/FCIC arrest record check22. Check other state agencies if involved.23. Child support payments24. Branch auditor review of income tax returns25. Contact CLE26. Prepare report

Glossary

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REINSTATEMENT PROCEDURES

Reinstatement Procedures

Glossary

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Eligibility

Reinstatement proceedings pursuant to this rule are available only for those lawyers who are subject of disciplinary suspensions or who have been placed on the inactive list for incapacity not related to misconduct. 3-7.13.

Proceedings under this rule are not available to resolve issues of delinquency.

Proceedings under this rule are not available to those members of the bar who have been disbarred or whose petitions for disciplinary resignation have been accepted by the court.

Glossary

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Publication of Notice

Upon receipt of a petition for reinstatement bar counsel shall cause to be published in The Florida Bar News and local newspapers a notice that the reinstatement preceding has been commenced. The notice should solicit comments concerning the issue of reinstatement.

The cost of publication should be recorded in the reinstatement file and reimbursement sought when appropriate.

Glossary

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Supreme Court Docketing & Appointment of Referee

The supreme court will assign a case number, provide notice of that assignment to the parties, and direct the chief judge of the local judicial circuit to appoint a judicial referee. As a matter of practice, the supreme court will request assignment of the same judicial referee who presided over the case that resulted in the need for the reinstatement proceeding. In this fashion, the court assigns a judicial referee with a background concerning the issues of rehabilitation.

Glossary

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Pretrial Responsibility of Bar Counsel

Bar counsel has the same responsibility to prepare for trial as with regular disciplinary cases. Bar counsel’s focus should be on determining if evidence of disqualifying conduct exists and whether evidence exists negating the character and fitness required to resume the practice of law. Discovery is available pursuant to the Florida Rules of Civil Procedure, except that subpoenas may be issued only by the judicial referee. 3-7.11 (d) (1).

Glossary

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Pretrial Responsibility of Headquarters Staff

Staff of the headquarters office are charged with reviewing the disciplinary sanction that led to the need for reinstatement proceedings and determining if the member seeking reinstatement has complied with probation, paid costs, filed required affidavits (3-5.1 (g)), filed required verified reports of employment (3-6.1 (f)), and any other information relevant to the issue of reinstatement. Headquarters staff shall report this information to bar counsel, in affidavit form, if such report is to be used as evidence in the reinstatement proceeding.

Glossary

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Discovery

Discovery is available under the Florida Rules of Civil Procedure.

Glossary

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Final Hearing

A final hearing is held at which the burden of proof is on the member seeking reinstatement to prove fitness to resume the practice of law. In doing so, the referee may consider whether there has been any disqualifying conduct, the character and fitness of the member seeking reinstatement, and whether the member seeking reinstatement has been rehabilitated.

By rule the court has stated:

Merely showing that an individual is now living as and 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. 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.

Glossary

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Summary Procedure

If, after the completion of discovery, no evidence on which the bar may oppose reinstatement has been found, the bar may stipulate to the issue of reinstatement. This stipulation requires the approval of the designated reviewer and staff counsel. Any stipulation shall include a statement of costs that will be assessed against the member seeking reinstatement.

Glossary

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Board Review

A report of a referee in a reinstatement proceeding is subject to review by the board of governors. If time deadlines (60 days from service of the report of referee) do not allow for full board review, the executive committee may act in the board’s place.

Glossary

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Executive Committee Authority

The executive committee is a committee of the board of governors and has the authority to act in place of the full board if time requirements do not allow for full board of governors review. In such cases, notice of the executive committee action shall be placed on the next disciplinary agenda for review by the board.

Glossary

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Agenda Item Process

The process for creation, review and approval of agenda items that is required in regular disciplinary cases applies to cases based on reinstatement as well.

Glossary

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Disciplinary Review Committee Action & Report to Board

The same process for disciplinary review committee action and report to the board applies to reinstatement proceedings as in the regular disciplinary cases.

Glossary

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Board of governors’ review is accomplished in the same manner as for reports of referees in regular disciplinary cases.

Glossary

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Notice of Board Action

The director of lawyer regulation will provide written notice to the clerk of the supreme court, bar counsel, respondent, and other interested parties concerning the action of the board of governors on review of reports of referees in reinstatement proceedings.

Glossary

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Minutes of Board and Executive Committee Action

The director of lawyer regulation will include board action on reinstatement cases in the minutes of the board of governors’ action on review of the disciplinary agenda.

Glossary

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Supreme Court Action

The bar or the respondent may seek review of the report of referee by the filing of a petition for review. The parties have 60 days from the date the report of referee is served in which to file a petition for review and to preserve review as a matter of right. The court may accept late-filed petitions for review upon good cause.

If a petition for review is filed, briefs are required as follows:

An initial brief must be filed within 30 days of the filing of the petition for review;

An answer brief may be filed within twenty days of the filing of the initial brief;

A reply brief may be filed within ten days of the filing of the answer brief;

In cases in which a cross-petition for review has been filed the answer brief may include the issues addressed in the cross-petition; and

In cases in which a cross-petition for review has been filed and the answer brief included the issues addressed in the cross-petition, the reply brief may address all issues contained in the answer brief.

A party may request oral argument by motion filed with the first brief filed by that party. The court has discretion to grant oral argument and may require oral argument on its own motion.

When the case is ripe for review the court will review the matter and issue an order or opinion concerning the appropriate dispossession.

Glossary

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Headquarters Responsibility After Court Action

When the court issues an order in the reinstatement proceeding, headquarters staff shall make appropriate data base entries to record the court action on reinstatement, costs assessed (if any), and probationary conditions imposed (if any).

Post trial and appellate procedures commence upon the filing of the report of referee with the Supreme Court of Florida.

Review by Board of Governors

In cases based upon a consent judgment before a formal complaint is filed and cases involving a report of referee that is not based upon a consent judgment, bar counsel shall prepare an agenda item for submission to the board. Bar counsel will prepare an agenda item for approval by the CBDC and staff counsel. Once approved, the item is forwarded for board approval.

Bar counsel calculates the appropriate time available for bar review and determines whether the matter should be placed on the board disciplinary agenda or sent to the executive committee for review when time does not allow for full board review.

If a matter is submitted to the executive committee for action, bar counsel shall prepare a memorandum, secure approval of the memorandum by the CBDC and staff counsel, then forward the memorandum, agenda item, and all appropriate backup to the executive committee. The preferred method of referral is e-mail.

The executive committee shall be offered the options of voting to petition for review and seek specified sanctions, voting to not petition for review, or requesting a conference call to discuss the case. A deadline for responses must be stated.

Copies of the referral to the executive committee will be given to the executive director, designated reviewer, staff counsel, and the assistant to the president.

Once a majority of the executive committee has authorized a particular action, bar counsel prepares the necessary letters and pleadings to effectuate the executive committee action. In addition, bar counsel prepares a notice of executive committee action and forwards the notice, the memorandum of transmittal to the executive committee, the agenda item, and appropriate backup to the headquarters office for inclusion in the next regular board disciplinary agenda.

When the matter is presented to the full board of governors for review, the headquarters office will prepare the disciplinary agenda and present the matter to the disciplinary review committee and board of governors. The board may modify the decision of the executive committee (rule 2-3.12). Bar counsel’s responsibility is to prepare the agenda item and appropriate backup, secure approval and recommendations from staff counsel and the designated reviewer and forward all to the headquarters office.

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The headquarters office will author a letter to the clerk of the supreme court indicating board action on the case. A copy of this letter will be given to bar counsel, the respondent, the designated reviewer, and any other appropriate persons.

Bar counsel will prepare and file any necessary pleadings to effectuate board action.

Once a report of referee has been filed, the parties (the bar and the respondent) have the opportunity to petition for review as a matter of right. The bar will determine whether it will exercise this right to a review of the matter by either the executive committee or full board of governors.

If neither party exercises the right to review, the uncontested report of referee is generally adopted by an order of the court issued by the clerk. Thereafter the disciplinary file is closed or monitored by the headquarters office as is appropriate.

If either party exercises the right to review, that party files a petition for review. If the bar is the party seeking review, bar counsel files the petition for review initiating the appellate process. Briefs are allowed as permitted by the rules and consist of an initial brief, an answer brief, and a reply brief. If both parties exercise the right to review a cross-initial brief, cross-answer brief, and cross-reply brief will be allowed.

The court has discretion to grant oral argument.

After all briefs have been filed and oral argument has been held or not allowed, the court will issue an order or opinion concerning the matter. Thereafter the disciplinary file is closed or monitored in the headquarters office as appropriate.

Glossary

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Costs Collection

If the court order on reinstatement imposes costs, headquarters staff will initiate collection efforts. If the costs are not timely paid and an agreement for a payment plan is not reached, the cost will be deemed delinquent. In such event headquarters staff will record the cost judgment in the appropriate court records and place the member’s name on the list of individuals that will be advised that annual membership fees cannot be accepted due to the costs delinquency. Additionally, if respondent does not timely pay costs, the member will become ineligible to practice law in Florida. Rule 1-3.6

Glossary

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Probation

If the court order on reinstatement imposes probationary conditions, headquarters staff will advise the member who has been reinstated as to those probationary conditions and the fees relative to same. Thereafter, headquarters staff will monitor compliance with those probationary conditions and collect the fees. If the member fails to comply with the conditions of probation, including paying relevant fees, the director of lawyer regulation shall evaluate the matter and file a petition for contempt and order to show cause, if appropriate.

Glossary

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Closing Files

Bar counsel may close the branch reinstatement file soon after the entry of a final order of the court disposing of the petition for reinstatement.

Bar counsel may not direct data base entries for closure of the computer record associated with the reinstatement proceeding. Maintenance of the data base for this purpose is the responsibility of the headquarters staff.

Glossary

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INVENTORY ATTORNEY CASES

Inventory Attorney Cases

Glossary

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Inventory Attorney Manual

INVENTORY ATTORNEYMANUAL

DIRECTORY OF BRANCH OFFICES

TALLAHASSEE BRANCHThe Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300Telephone: (850) 561-5845 Circuits: 1, 2, 3, 4, 8, 14

TAMPA BRANCHThe Florida Bar, 5521 W. Spruce Street, Suite C-49, Tampa, Florida 33607Telephone: (813) 875-9821 Circuits: 6, 12, 13, 20

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ORLANDO BRANCHThe Florida Bar, 1200 Edgewater Drive, Orlando, Florida 32804-6314Telephone: (407) 425-5424 Circuits: 5, 7, 9, 10, 18, 19

FORT LAUDERDALE BRANCHThe Florida Bar, Lake Shore Plaza II, 1300 Concord Terrace, Suite 130, Sunrise, Florida 33323Telephone: (954) 835-0233 Circuits: 15, 17

MIAMI BRANCHSuite M-100, Rivergate Plaza, 444 Brickell Avenue, Miami, Florida 33131Telephone: (305) 377-4445 Circuits: 11, 16

TABLE OF CONTENTS

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INVENTORY ATTORNEY MANUALJan. 2009 Edition

PREFACE

A copy of this manual will be available to each Inventory Attorney assigned to an inventory proceeding. This manual is intended to acquaint all interested individuals with the Right to Inventory rules and procedures of The Florida Bar. This manual is intended to be only a guide and a starting point for persons appointed or interested in determining the requirements of the inventory attorney procedures. The Florida Bar makes no warranties about the content hereof. Suggestions for changes or additions to the manual are solicited.

(CAVEAT : Because the Rules Regulating The Florida Bar are amended from time to time, readers of this manual are urged to consult the current Rules Regulating The Florida Bar at www.floridabar.org.

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Authority and Governing Rules

Right to Inventory - Rule 1-3.8

Whenever an attorney is suspended, disbarred, becomes a delinquent member, abandons a practice, disappears, dies or suffers an involuntary leave of absence due to military service, catastrophic illness, or injury, and no partner, personal representative, or other responsible party capable of conducting the attorney's affairs is known to exist, the appropriate circuit court may appoint an attorney, or attorneys, to inventory the files of the subject attorney and to take such action as seems indicated to protect the interests of clients of the subject attorney.

Members of The Florida Bar are required by Rule 1-3.8(e) to designate an inventory attorney. When the services of an inventory attorney become necessary, an authorized representative of The Florida Bar shall contact the designated member and determine the member's current willingness to serve. Bar Counsel, or the volunteer inventory attorney will then file a petition for appointment of inventory attorney (Form IA-1 attached) where the lawyer's practice is located. A judge will be assigned to preside over the case and an order appointing the Inventory Attorney will be issued (Form IA-2).

On the occasion that a volunteer inventory attorney wishes to file their own petition for appointment, bar counsel will supply the forms, cooperate with and assist the volunteer.

Upon appointment as inventory attorney, a list should be compiled of all cases of the subject attorney including active and inactive files. All files are reviewed and the inventory attorney can apply for an injunction freezing the bank accounts of the subject attorney. Each client is notified that an inventory attorney has been appointed by sending a notification letter (Form IA-3) along with a Request for File Disposition (Form IA-4) to be completed by the client and returned to the inventory attorney.

An initial report of inventory attorney is filed with the Circuit Court (Form IA5).

Once the inventory attorney has notified each client that their attorney can no longer practice law and that the files are available to the client, then the inventory attorney will file a second report. Often, not all of the clients respond to the

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inventory attorney after the inventory attorney has exercised due dilligence to notify the clients. In these circumstances, the inventory attorney should seek approval from the Judge to destroy the files.

FORM IA-1

FILED BY BAR COUNSEL FOR THE FLORIDA BAR

IN THE CIRCUIT COURT OF THE ___________________ JUDICIAL CIRCUITIN AND FOR __________________ COUNTY, FLORIDA

In Re:

THE FLORIDA BAR,

Petitioner,Circuit Court Case No. _________________Florida Bar File No.

___________________[SUBJECT Attorney Name] ,

A [disbarred, deceased, suspended, etc.] attorney.

______________________________________/

PETITION FOR APPOINTMENT OF INVENTORY ATTORNEY

The Florida Bar brings this Petition for Appointment of Inventory Attorney and says:

1. This Court has jurisdiction to entertain this petition and over the subject matter

hereof pursuant to Rule 1-3.8, Rules Regulating The Florida Bar.

2. [Inventory Attorney Name], is a member of The Florida Bar and subject to the

jurisdiction of this Court.

(OPTIONAL PARAGRAPHS, choose appropriate one):

3. Subject has been [disbarred/suspended.etc.] as of [enter date of order], by the

Supreme Court of Florida, a copy of the [date of order] order is attached herewith and made a

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part hereof.

[OR]

3. Subject attorney is Ideceased/disabled,/etc,] and unable to practice law.

4. Subject attorney has no partner, executor or other responsible party capable of

conducting subject attorney's affairs connected with the practice of law.

5. Upon information and belief of the undersigned, subject attorney has not been

adjudicated an incompetent.

6. Subject attorney is in actual or constructive possession of certain files of clients

and/or former client files.

7. The subject attorney's inability to practice law creates the probability of prejudice

to such clients.

8. In order to protect the legal rights of the clients of subject attorney and minimize

liability of subject attorney, if any, it is essential that all active files of subject attorney be

inventoried pursuant to Rule 1-3.8, Rules Regulating The Florida Bar and appropriate action be

taken to notify and otherwise protect said clients as provided in said rules.

9. Subject attorney is believed to have maintained a trust account and an office

operating account.

10. That [ Inventory Attorney Name], a member of The Florida Bar, [Inventory

Attorney Address] [Inventory Attorney Phone], has consented to act as inventory attorney.

WHEREFORE, The Florida Bar, by and through its undersigned representative, prays

that this Honorable Court:

A. Appoint [Inventory Attorney Name], an attorney licensed to practice law in the

State of Florida, as inventory attorney for [Subject Attorney Name] with the full powers and

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duties pursuant to Rule 1-3.8, Rules Regulating The Florida Bar.

B. Direct that [Inventory Attorney Name] proceed as soon as possible.

C. Direct that [Inventory Attorney Name] shall furnish progress reports to this Court

with copies to The Florida Bar periodically at such times and at such intervals as this Court may

deem appropriate until the completion of [his/her] duties as inventory attorney and approval of

the final report by this Court.

D. Direct that such writs as are necessary to enable the inventory attorney to carry

out his duties under this court order will be issued forthwith by the clerk of this Court upon

application of said attorney.

E. Direct that [Inventory Attorney Name] shall have full access to and authority to

make deposits to and disbursements from the trust account(s) and operating account(s) of

[Subject Attorney Name], and shall comply with the provisions of Rules 5-1 and 5-2, Rules

Regulating The Florida Bar in all transactions involving said accounts.

____________________________________[Bar Counsel Name], Bar CounselThe Florida Bar[Branch Address][Branch Phone]Florida Bar No. [Bar Counsel BarNo]


I HEREBY CERTIFY that a copy of the foregoing Petition for Appointment of Inventory Attorney regarding Civil Court Case No. _____________________________ has been furnished by regular U.S. mail to [Inventory Attorney Name], whose record bar address is [Inventory Attorney Record Bar Address], on this _______ day of _______________, ____.

____________________________________[Bar Counsel Name]

- 400 -

Copy Provided To:Staff Counsel, The Florida Bar[DRName], Designated Reviewer[GCCName], Chair

- 401 -

FORM IA-2


In Re:

THE FLORIDA BAR,


___________________[Subject Attorney Name] ,


______________________________________/

ORDER APPOINTING INVENTORY ATTORNEY

THIS CAUSE came on to be heard upon the Petition of The Florida Bar for appointment

of an inventory attorney pursuant to Rule 1-3.8, Rules Regulating The Florida Bar, and the Court

being otherwise fully advised in the premises and finding that:

[Subject Attorney Name] (OPTION 1: NOT SO IF DISBARRED) is a member of The

Florida Bar and that he/she has been (disbarred/suspended/etc) by order of the Supreme Court of

Florida,

[Subject Attorney Name] (OPTION 2) has abandoned (his/her) practice

[Subject Attorney Name] (OPTION 3) has disappeared or died and that no executor,

partner, or responsible party capable of conducting (his/her) law practice affairs is known to

exist; and that Subject Attorney Name] has in[his/her] actual or constructive possession files of

clients or former clients and has not returned those files to such clients; and that in order to

- 402 -

protect the rights of all concerned including Subject Attorney Name] and (his/her) clients and

former clients, it is

ORDERED AND ADJUDGED:

1. [Inventory Attorney Name/Address/Phone], is hereby appointed as inventory

attorney for [Subject Attorney Name] with full powers and duties pursuant to Rule 1-3.8, Rules

Regulating The Florida Bar to carry out the function as inventory attorney.

2. The inventory attorney is directed to proceed as soon as possible to inventory the

files of [Subject Attorney Name] and to take such action as he/she seems indicated to protect the

interests of the clients of [Subject Attorney Name] as well as the interest of [Inventory Attorney

Name].

3. [Inventory Attorney Name] is specifically authorized to accept employment as

attorney in connection with the activities of cases found in the files inventoried as long as each

client is given a free choice for the further employment of counsel.

4. [Inventory Attorney Name] shall not be obligated to accept employment as

attorney in connection with any or all the active cases found in the files inventoried but he/she, at

his/her option, may refuse to handle such files.

5. The inventory attorney shall furnish a progress report to this Court with copies to

The Florida Bar, c/o[Bar Attorney Name], Bar Counsel, [Branch Name/Address] within 30 days

of this order, and shall thereafter furnish periodic progress reports as this court may direct until

completion of the duties as inventory attorney and approval of a final report by this Court.

6. The clerk of this Court shall issue, upon application of [Inventory Attorney

Name], such writs as may be necessary to carry out this order.

7. The inventory attorney, [Inventory Attorney Name], shall have specific authority

- 403 -

to have access to any and all bank accounts of [Subject Attorney Name], whether such bank

account is individual, escrow, trust, estate or in any representative capacity.

DONE AND ORDERED in Chambers at _____________, _________________ County,

Florida, this __________ day of ___________________, _______.

_____________________________________

CIRCUIT JUDGE

Copies Provided To:[Bar Counsel Name], Bar Counsel[Personal Representative Name], Personal Representative OR [Subject Attorney Name]Staff Counsel, The Florida Bar[DR Name], Designated Reviewer[GCChair Name], Grievance Committee Chair [Inventory Attorney Name], Inventory Attorney

- 404 -

FORM IA-3

[Letterhead][Date]

[Client Name][ClientAddress]

In Re: [Subject Attorney Name]; Circuit Court Case No. ____________________Florida Bar File No. _______________________________________________

Dear [Client Name]:

I have been appointed by the circuit court as the Inventory Attorney for the files of [Subject Attorney Name] due to the fact that [Subject Attorney Name] has [died/been disbarred, etc.]. (NOTE: If the Subject attorney was disbarred, has died, disappeared or has been adjudicated incompetent, that fact should be substituted).

[Mr./Ms. Subject Attorney Last Name]'s files indicate that [he/she] has represented you in a legal matter. If this representation has not been fully completed, it is suggested that you contact and secure a new attorney and have your new attorney contact me immediately.

Your office file can be secured upon request, and must be picked up by you in person. No files will be delivered by mail unless you so indicate on the enclosed REQUEST FOR FILE DISPOSITION. Please indicate on the enclosed REQUEST FOR FILE DISPOSITION what disposition you wish to have made of the file, and mail this request to me at [Inventory Attorney Name/Address].

Please allow at least 5 working days after mailing the request before attempting to pick up your file.

If you have any questions, I can be contacted by telephone at [Inventory Attorney Phone], or my office at [Inventory Attorney Address].

Very truly yours,

[Inventory Attorney Name]Inventory Attorney

- 405 -

FORM IA-4

REQUEST FOR FILE DISPOSITION

TO: [Inventory Attorney Name][Inventory Attorney Address]

Re: [Subject Attorney Name]; TFB File No. _____________________

I HEREBY request disposition of my office file held by [Inventory Attorney Name] as follows:

_____ I will pick up my file at your [Inventory Attorney Office Location] office.

_____ The legal matter contained in the file has been completed and the file may be destroyed.

_____ This is your authority to send the file via regular U.S. Mail to the person indicated below:

Very truly yours,

Name _____________________________________

Address _____________________________________

_____________________________________

________________________Zip__________

Phone _____________________________________

- 406 -

FORM IA-5


In Re:

THE FLORIDA BAR,




______________________________________/

INITIAL REPORT OF INVENTORY ATTORNEY

Comes now [Inventory Attorney Name], as Inventory Attorney for the files of [Subject

Attorney Name], and reports to the Court as follows:

1. I was appointed as inventory attorney by order of the court dated [Date of Order].

2. There has been delivered to me approximately [# of Files] files of [Subject

Attorney Name] and so far as is known at this time this constitutes all of office files.

Approximately [# of Active Files] of these files are active files on which [Subject Attorney

Name] is the attorney of record. Each file has been examined and the party in interest has been

notified of the pendency of this inventory proceeding and that their file may be secured from me

upon application. As of this date, the following files have been disposed of as follows:

[List Files and disposition.]

3. The remaining files numbering approximately [# of files] contain copies of

- 407 -

documents, letters and miscellaneous papers of no apparent value or use. Each file is being

examined and an evaluation is made as to the necessity of notifying the client. If the file shows

action or inquiry during the past six years, a letter is then written to the client, a copy of which is

hereto attached as Exhibit A, with a return letter to me indicating their choice as to the

disposition of the file.

3a. Where files indicate that there has been no action or inquiry during the past six

years or that they have been fully completed, such files are being held as "no action files,"

subject to future disposition or destruction.

3b. OPTIONAL: This court has granted authority to return all files to [Subject

Attorney Name]'s former clients or to have them destroyed as the court may direct. A copy of

this authority is hereto attached as Exhibit B.

4. As of the date of this report, approximately [# Letters mailed] letters have been

mailed to clients concerning their files; approximately [# of No Action Files] files have been

designated as "no action files" and [#Files Delivered] files have been delivered to clients or their

respective attorney, or agent.

5. On, [Date applied for Injunction] I applied for and received an injunction freezing

the bank accounts of [Subject Attorney Name]. The total amount in said bank(s) held under such

order is $________________ as will appear from the letter(s) from said bank(s) attached as

Exhibit(s) _______. There are no other assets of [Subject Attorney Name] known to me at this

time.

It is estimated that the cost of each letter to clients is approximately $________ for

envelopes, photocopies, and postage. Unless otherwise directed by the court or The Florida Bar,

I propose to continue with the disposition of files as above set forth.

- 408 -

Respectfully submitted this ______ day of ____________, ______.

___________________________________________

Inventory Attorney Name, Inventory AttorneyInventory Attorney AddressInventory Attorney PhoneInventory Attorney Bar Number


I HEREBY CERTIFY that a copy of the foregoing Initial Report of Inventory Attorney has been furnished by regular U.S. mail to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399; and to [Bar Counsel Name], The Florida Bar, [Branch Address] and [Personal Representative Name], Personal Representative, this _________ day of __________________, ____.

___________________________________________

Inventory Attorney Name, Inventory Attorney

- 409 -

FORM IA-6


In Re:

THE FLORIDA BAR,




______________________________________//

SECOND REPORT OF INVENTORY ATTORNEY

Comes now[Inventory Attorney Name], as Inventory Attorney for the files of [Subject

Attorney Name], and reports to the court the following:

1. Since the filing of the first report, I have ascertained that I received approximately

[# of Files] office files. Of these files approximately [# of Files] require no action.

2. The items reported in paragraph __ and paragraph __ of the initial report have

been disposed of by delivery of files to clients or to their new attorneys.

3. The status of the office files of is approximately as follows, as of this date.

a) Letters mailed to clients _____Requests for files _____Requests to destroy files _____No response to letters _____Letters returned undelivered _____

b) Requests for files _____

- 410 -

Files delivered _____Files requested but not delivered _____

4. Your petitioner makes the following recommendations concerning the disposition

of all remaining files:

a) That the approximately [# of Files] "no action" files be destroyed.

b) That the [# of Files] "no response" files be destroyed.

c) That the persons interested in the remaining [# of Files] files requested but not retrieved files be given a second notice and that any files not retrieved be destroyed as of [Date].

d) That the receipts for the [# of Files] files delivered to clients be held by your petitioner until [Date], and on that date be destroyed.

5. Your petitioner, as inventory attorney has incurred the following expenses for

which [he/she] requests reimbursement:

a) Cost of mailing [# of Letters] letters at $_____________.

b) Miscellaneous expense per statement attached $_____________.

c) Travel expense at $0.405 per mile $____________________.

d) Estimated expense to complete work, including [# Letters] second letters, destruction of files, mileage, etc.

Your petitioner represents that there are funds in [Subject Attorney's Name]'s operating

account in the sum of $__________ as will appear from Exhibit(s) attached to the initial report

of inventory attorney filed herein. It is recommended that the foregoing expenses be paid from

such funds.

6. Your petitioner represents that there is a trust account balance of

$______________, representing trust funds of [Subject Attorney's Name] held by him for

- 411 -

clients. Your petitioner makes no recommendation for the disposition of said trust funds except

that they be disposed of as this Court may direct.

WHEREFORE, your petitioner requests the entry of an order,

a) Authorizing the destruction of files or such other disposition as the Court may

direct;

b) Authorizing the payment of expenses incurred by the inventory attorney in the

distribution and destruction of files; and

c) Directing the disposition of the trust funds of [Subject Attorney Name] now on

deposit to the registry of the court or such disposition as the court shall deem

appropriate.

_________________________________________[Inventory Attorney Name][Inventory Attorney Address][Inventory Attorney Phone][Inventory Attorney Bar Number]

- 412 -

FORM IA-7


In Re:

THE FLORIDA BAR,




______________________________________/

FINAL REPORT OF INVENTORY ATTORNEYAND PETITION FOR DISCHARGE

Petitioner respectfully submits that on [Date of Court Order] was appointed as inventory

attorney for the files and records of [Subject Attorney Name] pursuant to Rule 1-3.8, Rules

Regulating The Florida Bar.

Petitioner has filed [his/her] report(s) of [his/her] actions as inventory attorney. On [Date

of Order], an order was entered directing the distribution and payment of certain trust accounts

and personal bank accounts of [Subject Attorney Name] and directing the destruction of the

remaining office files.

Pursuant to said order of [Date of Order], petitioner has destroyed all of the remaining

office files of [Subject Attorney Name].

Petitioner caused the funds in the trust accounts of [Subject Attorney Name] to be paid to

[Name of Clerk of Court] as clerk of the circuit court, for deposit into the registry of this court.

- 413 -

The sum of $_____________________ is now on deposit.

Petitioner acknowledges receipt of the funds as set forth in said order as reimbursement

of expenses incurred as inventory attorney.

WHEREFORE, having completed all duties as inventory attorney for [Subject Attorney

Name] [Inventory Attorney Name]respectfully requests the entry of an order approving [his/her]

actions and to discharge [Inventory Attorney Name] as inventory attorney.

Respectfully submitted this _______ day of _____________, _____.

__________________________________________[Inventory Attorney Name], Inventory Attorney[Inventory Attorney Address][Inventory Attorney Phone]Florida Bar Number: [Inventory Attorney Bar No.]


I HEREBY CERTIFY that a copy of the foregoing Final Report of Inventory Attorney and Petition for Discharge has been furnished by regular U.S. mail to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399; and to [Bar Counsel Name], Bar Counsel, The Florida Bar, [Branch Address], and to [Personal Representative Name], Personal Representative, [PR Address], on this _________ day of __________________, ____.

_________________________________________[Inventory Attorney Name], Inventory Attorney

- 414 -

FORM IA-8


In Re:

THE FLORIDA BAR,




______________________________________/

NOTICE OF HEARING

TO: [Bar Counsel Name], Bar CounselThe Florida Bar[Branch Address]

[Personal Representative Name], Personal Representative[PRAddress]

[Inventory Attorney Name], Inventory Attorney[IA Address]

YOU WILL PLEASE TAKE NOTICE that on this date [Inventory Attorney Name], as

Inventory Attorney for the files of [Subject Attorney Name], has filed [his/her] report for the

period of [Beginning Date of Report] through [Ending Date of Report] in the above-styled cause,

and will apply for an order thereon before the Honorable [Judge's Name], in chambers at the

[County] County Courthouse, [City], Florida, at [Time], on [Day of Week], [Month] [Day],

[Year].

- 415 -

A copy of said report is attached hereto.

Dated this _________ day of __________________, ____.

______________________________________[Inventory Attorney Name], Inventory Attorney[Inventory Attorney Address][Inventory Attorney Phone]Florida Bar No.: [IA Bar No.]

- 416 -

FORM IA-9


In Re:

THE FLORIDA BAR,




______________________________________/

ORDER

This cause coming on to be heard upon the reports of [Inventory Attorney Name], as

inventory attorney for the files of [Subject Attorney Name], and the court being fully advised,

IT IS ORDERED:

1. That the approximately [Number of Files] "no action" files and the [Number of

Files] "no response" files be destroyed immediately.

2. That the [Number of Files] files authorized to be destroyed by the persons

interested in said files be destroyed immediately.

3. That the [Number of Files] files requested but not picked up, and the [Number of

Files] files belonging to clients whose letters were returned undelivered, be held by the inventory

attorney until [Date], and all such files not delivered by that date be destroyed.

4. That the receipts for files delivered to clients to be held by the inventory attorney

- 417 -

until [Date], or for such additional time as the inventory attorney may elect, and on such date be

destroyed.

5. That the sum of $__________ in account number [Account Number] in the name

of [Subject Attorney Name] on deposit in [Name and Address of Banking Institution] be paid to

[Inventory Attorney Name], as inventory attorney for [Subject Attorney Name], in

reimbursement of expenses.

6. That the balance of $____________ in trust account number [Account Number]

in the name of [Subject Attorney Name] on deposit in [Name and Address of Banking

Institution] be paid to [Name of Clerk of Court], Clerk of the Circuit Court, for deposit into the

registry of this court at interest, and subject to the further order of this court.

7. That the balance of $_______________ in operating account number [Account

Number] in the name of [Subject Attorney Name] on deposit in [Name and Address of Banking

Institution] be paid to [Name of Clerk of Court], Clerk of the Circuit Court, for deposit into the

registry of this court at interest, and subject to the further order of this court.

DONE AND ORDERED, in chambers, this _______ day of ___________________,

____.

____________________________________[Judge's Name], Circuit Judge[Judge's Address]

Copies Provided To:[Bar Counsel Name], Bar CounselStaff Counsel, The Florida Bar[Personal Representative - or Subject Attorney Name], Personal Representative/or Subject[Inventory Attorney Name], Inventory Attorney

- 418 -

FORM IA-10


In Re:

THE FLORIDA BAR,




______________________________________/

RESPONSE TO FINAL REPORTAND PETITION FOR DISCHARGE BY INVENTORY ATTORNEY

The Florida Bar, by its undersigned authority, has reviewed and concurs with the final

report of inventory attorney. The Florida Bar expresses its gratitude to the inventory attorney for

[his/her] dedicated service and concurs in the request that an order be entered approving the final

report and discharging the inventory attorney.

Respectfully submitted this ______ day of _____________, ____.


I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. mail to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399; to [Inventory Attorney Name], Inventory Attorney, [Inventory Attorney Address], and to [Subject Attorney Name], [Subject Attorney Address] OR [Personal Representative Name], [Personal Representative Address], on this _____ day of ____________________, ________.

________________________________________

- 419 -

[Bar Counsel Name], Bar CounselThe Florida Bar[Branch Address][Branch Phone]Florida Bar No. [Bar Counsel Bar No.]

FORM IA-11


In Re:

THE FLORIDA BAR,




______________________________________/

NOTICE OF HEARINGON PETITION FOR DISCHARGE OF INVENTORY ATTORNEY

TO: [Bar Counsel Name], Bar CounselThe Florida Bar[Branch Address]

[Personal Representative Name], Personal Representative[PRAddress]OR[Subject Attorney Name][Subject Attorney Address]

The final report and petition for discharge of inventory attorney, will be called up for

hearing before the Honorable [Judge's Name], in chambers at the [County] County Courthouse,

[City], Florida, at [Time] on [Day of Week], [Month] [Day], [Year].

Dated this _________ day of __________________, ______.

- 420 -

________________________________________[Inventory Attorney Name], Inventory Attorney[Inventory Attorney Address][Inventory Attorney Phone]Florida Bar No. [Inventory Attorney Bar No.]


I HEREBY CERTIFY that a copy of the foregoing Final Report of Inventory Attorney and Petition for Discharge has been furnished by regular U.S. mail to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399; and to [Bar Counsel Name], Bar Counsel, The Florida Bar, [Branch Address], and to [Personal Representative Name], Personal Representative, [PR Address], on this _________ day of __________________, ____.

______________________________________[Inventory Attorney Name]

- 421 -

FORM IA-12


In Re:

THE FLORIDA BAR,




______________________________________/

ORDER

This cause come on to be heard upon the petition of [Inventory Attorney Name], as

inventory attorney for the files of and records of [Subject Attorney Name], for the approval of a

final report and for discharge, and the court being fully advised, it is

ORDERED:

(1) That the final report of inventory attorney for the files and records of [Subject

Attorney Name] be and is hereby approved.

2. That [Inventory Attorney Name] be and is hereby discharged as the inventory

attorney for the files and records of [Subject Attorney Name].

DONE AND ORDERED, this __________ day of ___________________, _______.

________________________________________[Judge's Name], Circuit Judge

- 422 -

Copies Provided To:[Bar Counsel Name], Bar CounselStaff Counsel, The Florida Bar[Personal Representative - or Subject Attorney Name], Personal Representative/or Subject[Inventory Attorney Name], Inventory Attorney

Glossary

- 423 -


Eligibility

When a member of the bar is suspended, disbarred, becomes a delinquent member, abandons the practice, disappears, or suffers an involuntary leave of absence due to military service, catastrophic illness, or injury, and no partner or other responsible party, including a personal representative of the member’s estate exists to take care of the responsibilities of the member, an inventory attorney may be appointed to inventory the files of the member and a take such action seems to be indicated to protect the interests of the clients and the member.

Glossary

- 424 -


Preparation & Filing Petition

When bar counsel has obtained a volunteer to serve as inventory attorney, bar counsel will draft a petition for appointment of the inventory attorney and file the petition with the chief judge of the local judicial circuit, or the bar may supply the petition to the volunteer who can file the petition.. Internal branch procedures for approval of these petitions may vary. Some judicial circuits require the payment of a filing fee and some Chief Judge’s have waived the filing fee. Bar counsel or the volunteer should request a waiver of the filing fee. The chief branch discipline counsel should review and approve the filing of all petitions.

Bar counsel will cause appropriate data base entries to be made when the petition is filed.

Glossary

- 425 -


Appointment of Inventory Attorney

Any circuit court judge of the local judicial circuit has the authority to appoint the inventory attorney. 1-3.8(a) The Florida Rules of Civil Procedure are applicable in these cases. 1-3.8 (d).

Glossary

- 426 -


Responsibilities of Inventory Attorney

The inventory attorney is responsible for assembling the files of the member’s law practice and determining the status of each. The inventory attorney is also responsible for taking charge of the trust and operating accounts, collecting amounts owed to clients and the law firm, and disbursing money appropriately. If the inventory attorney is not certain whether a disbursement is appropriate, court approval can be sought. The inventory attorney must provide clients with an opportunity to retrieve their files and secure substitute counsel. The inventory attorney may accept representation of clients, but is not required to do so. The inventory attorney has no attorney/client or other fiduciary relationship with the attorney whose files are subject to the inventory.

Glossary

- 427 -


Support by The Florida Bar

The Florida Bar does not have the human resources to perform inventory attorney services. However, we can provide investigative resources and financial assistance for reasonable costs incurred by an inventory attorney. For example, if the inventory attorney needs assistance in locating individuals, bar staff investigators are available to provide services at no cost to the inventory attorney.

Similarly, out of pocket expenses incurred by the inventory attorney that cannot be offset by fees collected or money in the member’s operating account may be reimbursed. An example of the type of expenses that may be reimbursed includes storage fees, copy costs, telephone charges, postage, etc. Generally, staffing costs are not reimbursed unless the inventory attorney was required to hire temporary assistance for this purpose.

The inventory attorney should be advised that expenses for the hire of temporary staff assistance must be reviewed and approved, in advance, at the local branch office level.

Glossary

- 428 -


Reports of Inventory Attorney

The inventory attorney has a responsibility to report status of the inventory process to the court on a regular basis. These reports are generally considered as interim reports and when all reasonable activity has been concluded a final report and request for discharge must be filed.

As soon as the inventory attorney has identified all client files a report concerning the identification should be filed with the court and instructions as to disposition requested as well. For example, the report should include information concerning attempts to return files to clients, indicating those that have been returned, those that the clients do not want, and those in which no response has been received. The inventory attorney should request specific instructions and suggest what those instructions should be. Bar counsel may assist in formulating the instructions based on prior inventory attorney case experience.

After a reasonable period of time and after reasonable efforts to locate clients, return files, and otherwise take action to protect client interests has expired the inventory attorney should file a final report, seek permission to destroy remaining files (or seek other instructions concerning their maintenance), and ask for discharge from further responsibilities.

Glossary

- 429 -


Discharge of Inventory Attorney

Permission to cease functioning as an inventory attorney requires an order of discharge from the circuit court that issued the appointment. As stated above, discharge should occur after all reasonable efforts have been exhausted.

Glossary

- 430 -


Closing Files

Bar counsel may close an inventory attorney file after an order of discharge has been entered and should acknowledge the discharge by appropriate letter of thanks to the inventory attorney. The proper closed code for use in this situation is “9.”

Glossary

- 431 -



Glossary

- 432 -

TRAVEL AUTHORIZATION AND EXPENSE REPORTING

Travel Authorization and Expense Reporting

Detailed instructions for travel authorization and reimbursable expenses are found in the New Bar Staff Manual; II Personnel Policies and Procedures; Section 21 Travel and Expense Reporting.

Glossary

- 433 -

DECEASED ATTORNEYS

Deceased Attorney

Headquarters Legal Assistant and/or Administrative Secretary will process notices of respondent's death as follows:

1. Headquarters will receive notification that a respondent is deceased. If the branch office receives notification, a copy should be forwarded to headquarters.2. Contact investigator to check with the probate court to see if an estate has been opened.3. If an estate has been opened, and if time permits, a claim will be filed with the probate court. The amount submitted is the amount outstanding at the time the respondent died.4. If an estate is not opened, a caveat will be filed with the probate court.

Glossary

- 434 -

INTRODUCTION TO UPL DEPARTMENT

Introduction to The UPL Department

Glossary

- 435 -

INTRODUCTION TO THE UPL DEPARTMENT

Jurisdiction

The Supreme Court of Florida has charged The Florida Bar with the duty of investigating and prosecuting allegations of the unlicensed practice of law (UPL). 10-1.2. The investigations are conducted by local circuit committees. 10-4. The Standing Committee on Unlicensed Practice of Law oversees the activities of the circuit committees. 10-3. The Standing Committee also has the authority to issue formal advisory opinions on matters involving the unlicensed practice of law. 10-9.

Glossary

- 436 -


Staff

The UPL department has 5 offices: the main office in Tallahassee and branch offices in Fort Lauderdale, Miami, Tampa and Orlando. The branch offices are staffed by branch UPL counsel and one legal secretary. The Tallahassee office is staffed by the director of UPL and assistant director, a part-time branch UPL counsel, 1 administrative secretary, and 1 secretary.

Glossary

- 437 -


Duties

The duties of the branch UPL counsel include attending committee meetings, providing research and assistance to the committees and trying cases before a referee. The attorneys also handle all pretrial and appellate work before the Supreme Court of Florida.

In addition to the work with cases and committees, the assistant director of UPL in Tallahassee is responsible for the formal advisory opinions and for giving guidance on matters involving UPL.

Glossary

- 438 -


Interaction with Other Departments

The UPL department assists the ethics department in answering questions that involve the unlicensed practice of law. The UPL department also assists staff counsel in matters relating to aiding and abetting the unlicensed practice of law and other violations which involve UPL issues. The UPL department does not investigate disbarred, suspended or resigned attorneys; those attorneys fall within the jurisdiction of the lawyer regulation department.

Glossary

- 439 -

INTRODUCTION TO ETHICS AND ADVERTISING DEPARTMENT

Introduction to Ethics and Advertising Department

Glossary

- 440 -


History

The ethics department began in 1983 with one full-time attorney. In 1984, the toll-free ethics hotline was opened and a second attorney was hired. Issuance of oral and written ethics opinions was centralized in Tallahassee, primarily for 2 reasons: to remove the burden from the branch office grievance attorneys and to help ensure consistency in advisory opinions. Demand for opinions grew, and a 3rd attorney was hired in 1986. Continued increase in demand for opinions resulted in the addition of a 4th attorney in 1990. In 1994, the ethics department merged with the bars advertising department. Additional attorneys were added in 1995 and 1998. We now have 6 full-time attorneys, 2part-time attorneys, 1 legal assistant, 2 administrative secretaries, 2 secretaries and 1 program assistant.

Glossary

- 441 -


Duties

Each ethics department attorney spends over half the time on the phone answering questions on the hotline. The rest of the time is spent researching, drafting written opinions, and working on the departments other responsibilities outlined below.

In addition to issuing oral and written ethics and advertising opinions, members of the ethics department:

Staff the Professional Ethics Committee, which meets 4 times each year and publishes formal advisory opinions;Staff the Board Review Committee on Professional Ethics, which hears appeals of staff and Professional Ethics Committee opinions at the board of governors level;Staff the Standing Committee on Advertising, which meets monthly;Staff various special committees and task forces;Reviews attorney advertisements filed with the department for compliance with the Rules of Professional Conduct and issues opinion letters;Speak at educational seminars and meetings;Write for various publications; andReview ethics-related material for CLE Publications, and compile the annual supplement to Professional Ethics of The Florida Bar (a compilation of formal advisory ethics opinions).

Glossary

- 442 -


What We Are Authorized to Do

Give advisory opinions about an INQUIRING ATTORNEYS OWN CONTEMPLATED (i.e., future) CONDUCT in light of the rules of ethics.

Glossary

- 443 -


What We Cannot Do

Comment on past conduct.Comment on the conduct of someone other than the inquirer.Comment on hypothetical questions.Answer questions of law.Provide opinions on conduct that is the subject of a pending grievance.

Glossary

- 444 -


Common Questions

The 3 areas most frequently asked about:

Conflicts of InterestFeesClosed files (what to do with them)

Glossary

- 445 -


Most Difficult Areas

The client who wants to lie or give false evidence.The all-too-frequently asked question: Who is my client?

Glossary

- 446 -


Ethics Inquiries

If an attorney raises a defense to a complaint that the attorney acted in accordance with an opinion rendered by the ethics and advertising department, bar counsel is entitled to copies of all information that the department has regarding the ethics inquiry under Rule 2(c) and Rule 9, Procedures for Ruling on Questions of Ethics. To receive copies of an ethics inquiry under Rule 2(c), please e-mail the department through internal e-mail to support staff of the department. The e-mail should indicate the name of the respondent, the facts of the inquiry, the date on which the respondent made the inquiry, and the ethics department attorney from whom the respondent received advice. If the inquiry was an oral request, bar counsel will receive a transcript of a telephone call slip that details the facts given by the inquirer, the question asked, and the answer given to the inquirer. If the inquiry was a written request, bar counsel will receive a copy of the correspondence to and from the inquirer regarding the ethics inquiry.

Glossary

- 447 -


Advertising Questions

The ethics and advertising department provides assistance to bar counsel with advertising complaints by providing information on whether advertisements have been filed and whether they comply with the Rules of Professional Conduct. Upon request by bar counsel, which should include a copy of the advertisement complained about, ethics and advertising staff provide a memo on purple paper that indicates whether the advertisement has been filed and any specific rules with which the advertisement does not comply. If the advertisement has been filed, a copy of the filing will be attached to the memo. Ethics and Advertising staff also provide a memo if an advertising complaint comes directly to the department; the complaint, along with filing and compliance information are forwarded to lawyer regulation headquarters. These memoranda are considered confidential work product of The Florida Bar and should not be provided to respondents or their counsel.

Glossary

- 448 -


Statistics

Bar membership surveys rank ethics opinions as the most desirable service offered by the bar. The ethics department emphasizes service by providing useful, timely information to inquiring bar members.

First full year of Hotline operation: 4,900 calls1997-1998: 18,697 callsCurrent Weekly Average: 360 callsLast year (1997-1998): 978 written opinionsinformational packets and faxes 4,531

Glossary