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Attorney Discipline



> The Inquiry Stage

The typical Florida Bar grievance case starts with a sworn complaint.  Mainly these come from disgruntled clients or other lawyers (commonly, from opposing counsel).  The initial stage is called the “inquiry” phase, in which the responding attorney is first asked to respond.  In defending a Florida Bar complaint the initial response is critical, for it is at this stage that crucial mistakes are often made.  It is also the point where most lawyers seek to represent themselves before the Florida Bar.  Representing yourself can be a crucial miscalculation in the early stages. In a Bar grievance, a failure to timely respond is a rule violation itself.  See Rule 4-8.4(g), Rules Regulating the Florida Bar.


In some instances, the Florida Bar will open grievance files without a sworn complaint, based on news articles, police reports, correspondence from judges or banks, or even self-reporting by the lawyer.  In the typical case the initial inquiry is handled by an intake attorney in the Bar's Attorney Consumer Assistance Program (ACAP) at the Florida Bar's Tallahassee office. The intake attorney determines whether the grievance should be analyzed or investigated further by Bar counsel.  If so, the file is assigned and forwarded to a local Bar prosecutor, or "bar counsel," who is an assistant to the Bar Staff Counsel.  (If the case file was opened by the Florida Bar itself, the preliminary review process is perfunctory, or moot.) If a client has filed a Bar grievance against you, it can't hurt to review the pamphlet the Florida Bar provides to complainants.


ACAP is primarily intended to process and address client grievances. ACAP will review the grievance to confirm whether the Florida Bar has jurisdiction to proceed. Some Florida Bar members, such as judges and constitutional officers, are excepted from the Bar’s grievance process. If jurisdiction is proper, the ACAP attorney will consider whether the facts as set forth raise any potential legal ethics violations for which discipline could apply. If so, the attorney will be copied on the grievance and asked to respond. In some cases, if the matter seems minor, the ACAP reviewer may seek to determine whether the dispute can be resolved by ACAP directly and informally, such as a disagreement or misunderstanding between a lawyer and client. See the ACAP page for more information on the program.


If the dispute cannot be resolved informally, ACAP will initiate a Florida Bar investigation by forwarding the grievance along with a letter requiring the lawyer to respond. Under Rule 4-8.4(g) the attorney must respond within 15 days; however, the time can be extended upon request, for good cause shown. In these situations, “good cause” includes a need or desire to consult with, or to hire, a Florida Bar defense attorney. At this juncture, it is a good idea to carefully review the terms of any malpractice insurance policy, as it may include reporting requirements. Some malpractice policies may pay the cost of defending a Bar disciplinary proceeding.


The best time to hire Bar defense counsel to effectively defend a Bar grievance complaint is at the start.  A good Bar defense lawyer must be aware of traps for the unwary; for example, if the grievance complaint did not come from the lawyer's client, any client confidences must be preserved and protected wherever possible.  The best opportunity you will likely have to positively influence the Florida Bar's prosecutors and decision-makers is in the initial phases.  After that, a Florida Bar attorney disciplinary proceeding can gather its own momentum.  Once a Florida Bar grievance complaint gets beyond a certain point, it can gain a life of its own.


> Florida Bar Grievance Committees


During the inquiry stage, Florida Bar prosecutors have a fair amount of discretion to close a case or dismiss a grievance complaint. If the case is not dismissed, it is forwarded to a Florida Bar grievance committee for further investigation.  This second critical stage is defined as “non-adversarial.”  This merely means that the accused lawyer does not enjoy the substantive and procedural due process rights usually accorded in an adversarial proceeding.  The Bar grievance committee proceeding presents both peril and opportunity to a responding attorney.  As such, the risks of self-representation are heightened.


Florida Bar grievance committees are made up of local attorneys and non-lawyers.  The committee chair assigns the case to one committee member as the “investigating member.”  The investigating member may talk informally with the complaining witness or other witnesses and collect further documents as necessary.  Florida Bar grievance committees can conduct hearings and call witnesses to appear and testify.  Eventually the grievance committee will vote to either terminate the case, or send it to the next stage, the referee level, by finding probable cause.  In a close case, the Florida Bar grievance committee stage is probably a Bar respondent’s best shot at obtaining a favorable outcome.  In rare instances a Florida Bar grievance committee’s work can be reviewed and the matter revisited and the outcome modified. The doctrine of res judicata does not apply to Florida Bar grievance committee proceedings. In other words, the Bar can investigate an inquiry/complaint against a lawyer; forward that complaint to a grievance committee; the committee can dismiss the case; and later the Bar can re-institute the very same matter and bring it to conclusion. See Florida Bar v. Trazenfeld, 833 So.2d 734 (Fla. 2002).


Disposition of a Bar grievance complant by a Florida Bar grievance committee generally terminates any prosecutorial discretion.  If the committee issues a finding of probable cause, the Florida Bar will draft and file a formal complaint in the Supreme Court of Florida.  See subsection (l) of Rule 3-7.4 ("If a grievance committee finds probable cause, the bar counsel assigned to the committee shall promptly prepare ... a formal complaint."). But see End Note (below). The Bar's filing and service of the formal complaint initiates the referee stage, a formal, adversarial proceeding.


> The Referee Level


At the referee level the lawyer is on trial.  No lawyer should be representing himself at this stage, if that can be avoided at all.  The action is an original proceeding in the Florida Supreme Court, and is presided over by an appointed “referee,” who is a county, circuit, or senior judge.  The Florida Rules of Civil Procedure apply, except where they are superseded by the Rules of Discipline. See Rule 3-7.6, Rules Regulating The Florida Bar.


Effective and zealous advocacy is required to make a Florida Bar defense at the referee level, because the rules and case law favor the Bar and the prosecution.  Hearsay is admissible.  The referee is directed to try the Bar case and issue a memorandum report within an expedited time frame.  Dispositive motions are generally discouraged, and thus rare. Often, the best strategy is to challenge the Florida Bar's proof and argue that the Bar has failed to meet the standard of clear and convincing evidence.  The chances for a good outcome are enhanced by hiring experienced Florida Bar defense counsel, an effective trial lawyer who is familiar with the special rules and case law that govern Florida Bar cases and trials before a referee.


> The Florida Supreme Court


Upon issuing the Report, the Florida Bar referee forwards the record and case materials to the Florida Supreme Court.  The Florida Bar and the respondent each have a right to petition the Florida Supreme Court to review the referee’s findings and recommendations, by filing a petition within 60 days of the date of the referee’s report.  The briefing schedule is expedited.  Oral argument can be requested in Bar cases, as in other appeals.  The Florida Rules of Appellate Procedure apply except where superseded by the Rules Regulating The Florida Bar. See subsection (f) of Rule 3-7.7.


The Florida Supreme Court reserves to itself the imposition of lawyer discipline, as it alone deems appropriate.  Once a Florida Bar case has progressed to the referee level, the Florida Supreme Court retains ultimate authority over the case at every step, and in all respects.  By rule the Court must review each and every referee report regardless of whether the Florida Bar or the responding attorney has petitioned for review.  In cases where the report does not recommend probation, public reprimand, suspension or disbarment, and neither party timely petitions for review, the report will stand as final.  In all other cases, the Florida Supreme Court reviews and approves or disapproves the report of referee.





END NOTE: Rule 3-7.4(l) includes a provision for the very rare instance in which a case can be sent back to the grievance committee after a finding of probable cause. Regarding any Florida Bar complaint, it is helpful to picture one's chances for a positive outcome as an inverted pyramid in which the initial stage – the inquiry phase – offers the broadest opportunities and possibilities for a good result.  Those opportunities and possibilities steadily narrow as the Bar case progresses through each critical phase, until the final stage arrives – the Florida Supreme Court review.  This illustrates why it can be vitally important to engage effective Florida Bar defense counsel at the earliest stage. Contact us for a free consultation.


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