Florida's Lawyer Discipline System: What Every Attorney Needs to Know.

• Author: Burgoon, Brian D.

The Florida Bar performs a number of important roles for the legal profession, and arguably none is more important than lawyer regulation and discipline. Fortunately, most lawyers will never have any interaction with the disciplinary system during their careers. Despite its significance to the practice of law, few lawyers or members of the public have a comprehensive understanding of the disciplinary process. (1)

The overarching goal of the lawyer disciplinary system is to protect the public from harm resulting from a lawyer's misconduct. (2) Lawyer discipline also exists to safeguard the legal system's integrity, to achieve justice, and to educate others with the aim of preventing potential misconduct profession-wide. With respect to an individual lawyer, discipline has both a deterrent effect for future unethical behavior and, hopefully, a rehabilitative effect. (3) Bar members are expected to live up to the legal profession's ethical standards and can be disciplined for a violation of certain Bar rules even if they 1) do not currently practice law or 2) are practicing attorneys but are not acting as a lawyer in connection with the violation. (4)

The disciplinary system is designed to determine whether a lawyer violated the Rules Regulating The Florida Bar, and if so, whether the violation warrants some form of disciplinary sanction. (5) Thus, it is important to understand that not all technical Bar rule violations warrant discipline.

Florida's lawyer disciplinary system has multiple stages, levels of review, and participants, all providing important checks and balances throughout the process. The following are the disciplinary system's decisionmakers, whose roles are discussed in greater detail later in this article.

* Florida Supreme Court--The Florida Supreme Court has the ultimate authority to regulate and discipline lawyers and promulgates both the Bar rules and the rules governing Bar admission. (6) The final decision on the imposition of most sanctions rests with the court. (7)

* The Florida Bar--The Florida Supreme Court has delegated the responsibility for the investigation and prosecution of lawyer disciplinary violations to the Bar, as an "arm" of the court. (8) Inquiries and complaints are first reviewed and investigated by the Bar's intake department, officially known as the Attorney Consumer Assistance Program (ACAP), which can forward the matter to one of the Bar's five branch offices for additional investigation and prosecution. The Bar is represented in disciplinary proceedings by Bar lawyers, all of whom are generally referred to as "Bar counsel." Bar counsel include intake counsel in ACAP, branch counsel in the branch offices, and the chief branch discipline counsel who manage each branch. (9) The Bar's staff counsel appoints all Bar counsel and approves formal complaints, consent judgments, and most diversion recommendations. (10)

* Grievance Committees--After the initial review of a discipline case by Bar counsel, those cases warranting additional investigation or prosecution are submitted to a grievance committee to decide whether to formally charge the accused lawyer (the respondent) with a disciplinary violation. After a grievance committee completes its investigation, it can recommend various outcomes, including finding whether there is "probable cause" to believe the respondent is guilty of misconduct justifying disciplinary action, finding no probable cause, recommending an admonishment, or recommending diversion. (11)

* Referees--Circuit and county court judges preside over disciplinary proceedings as referees. (12) At the conclusion of each disciplinary proceeding, the referee makes various findings and recommendations to the Florida Supreme Court. (13)

* Board of Governors and Disciplinary Review Committee--The Florida Bar Board of Governors is the 52-member governing board for the Bar, comprised of volunteer, elected representatives from each of Florida's 20 judicial circuits, four out-of-state representatives, two nonlawyer members, and the president and presidentelect of both the Bar and the Young Lawyers Division. (14) The board serves in an oversight role at all stages of the disciplinary review process, and makes decisions on behalf of the Bar with respect to discipline matters. (15)

Each elected board member serves as the "designated reviewer" of cases pending before their local grievance committees and is responsible for reviewing and approving all of the grievance committee's actions. (16) If the designated reviewer disagrees with a grievance committee's recommendation or finding, they can either send it back to the grievance committee for reconsideration or refer it to the board's Disciplinary Review Committee (DRC) for additional review. (17) Bar counsel also consults with the designated reviewer on the appropriate sanction to seek at trial or through a consent judgment. Additionally, the designated reviewer recommends actions for the DRC to take on various other disciplinary matters.

The DRC meets before each bimonthly board meeting and typically reviews over 20 cases each meeting. In addition to reviewing matters referred by a designated reviewer, the DRC also reviews referees' recommendations following disciplinary trials and reinstatement hearings, certain consent judgments, disciplinary revocations, and other disciplinary matters. The DRC recommends to the board whether the Bar should--among other things--overturn a grievance committee's action, enter its own finding regarding probable cause or seek review by the court of a referee's findings and recommendations. (18)

Potential Outcomes of a Disciplinary Case

There is a lot at stake for any lawyer accused of a disciplinary violation, including negative repercussions on their reputation and even the possibility of losing the privilege to practice law. There are a number of potential outcomes for a case entering the disciplinary system, ranging from file closure/dismissal, to diversion, to issuance of a sanction. It is only considered "discipline" if a sanction is issued, and that sanction then becomes part of the respondent's permanent, public Bar disciplinary record.

Dismissal or Finding of No Probable Cause

There are several ways a disciplinary matter may be dismissed in the early stages of the process. As described in more detail below, if the respondent's alleged conduct does not constitute a violation of the Bar rules warranting discipline, then the Bar may decide not to pursue an inquiry, may close a disciplinary file, or may issue a finding of no probable cause. A finding of no probable cause also may be accompanied by a letter of advice, which outlines concerns about the lawyer's actions and contains recommendations regarding future conduct. (19) All of these actions result in the termination of proceedings against the respondent with no discipline.

Alternatives to Discipline: Diversion, Mediation, and Arbitration

The Bar can utilize several alternatives to disciplinary sanctions for cases involving relatively minor transgressions or for cases that do not rise to the level requiring resolution within the disciplinary framework. If successfully completed, these alternative resolution methods are not considered discipline.

* Diversion--The Bar can offer diversion to eligible attorneys charged with minor violations that otherwise would be disposed of by either a minor misconduct finding or a finding of no probable cause with a letter of advice. (20) Diversion removes the case from the disciplinary system and places it in a practice and professionalism enhancement program in lieu of disciplinary sanctions. (21)

Practice and professionalism enhancement programs are designed to educate the respondent in order to improve their legal or law practice management skills, or to provide personal, substance abuse, or mental-health-related assistance, so that the lawyer hopefully will avoid future misconduct charges. (22) These programs include workshops on professionalism, trust accounting, advertising, or stress management; ethics school; referral to Florida Lawyers Assistance and possible requirement to enter into a rehabilitative contract; referral to the Bar's Diversion/Discipline Consultation Service for practice management assistance; and additional continuing legal education requirements. A lawyer is eligible for diversion only once every five years for the same type of rule violation, but may be eligible for diversion for a different category of rule violation as long as the lawyer has not had another diversion within the past year. (23)

Diversion is not considered discipline, and upon the respondent's entry into the practice and professionalism enhancement program, the Bar closes the disciplinary file, but opens a monitor file until the diversion is successfully completed. (24) A diversion recommendation must be accepted by the respondent. (25) If the respondent rejects diversion, then the case proceeds as if diversion had not been offered. (26) However, most respondents accept diversion when offered.

The Florida Supreme Court does not review and approve/reject diversion, if recommended, before a probable cause finding, such as a Bar counsel/grievance committee chair, grievance committee, or pre-complaint board diversion recommendation. (27) However, the court reviews and approves/rejects diversion recommendations made after probable cause has been found, including when a referee recommends diversion after a formal complaint has been filed. (28) In the 2019-20 fiscal year that ended on June 30, 2020, there were 144 diversions by grievance committees and two by referees at the trial level. (29)

* Grievance Mediation and Fee Arbitration--The Bar's Grievance Mediation and Fee Arbitration program is designed to assist the complainant and respondent with resolving disputes outside the disciplinary system. (30) When a grievance is more appropriate for a private resolution between the complainant and...