Florida Standards for Imposing Lawyer Sanctions.

The Board of Governors of The Florida Bar adopted an amended version of the ABA Standards for Imposing Lawyer Sanctions and thereby provided a format for Bar counsel, referees and the Supreme Court of Florida to consider each of these questions before recommending or imposing appropriate discipline:

(1) duties violated;

(2) the lawyer's mental state;

(3) the potential or actual injury caused by the lawyer's misconduct;

(4) the existence of aggravating or mitigating circumstances.

The Bar will use these standards to determine recommended discipline to referees and the court and to determine acceptable pleas under Rule 3-7.9.

BLACK LETTER RULES

For reference purposes, a list of the black letter rules is set out below.

"Injury" is harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. The level of injury can range from "serious" injury to "little or no" injury; a reference to "injury" alone indicates any level of injury greater than "little or no" injury.

"Intent" is the conscious objective or purpose to accomplish a particular result.

"Knowledge" is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.

"Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard care that a reasonable lawyer would exercise in the situation.

"Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct.

1. PURPOSE AND NATURE OF SANCTIONS

   1.1 PURPOSE OF LAWYER DISCIPLINE PROCEEDINGS

   The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge their professional duties to clients, the public, the legal system, and the legal profession properly.

   1.2 PUBLIC NATURE OF LAWYER DISCIPLINE PROCEEDINGS

   Ultimate disposition of lawyer discipline should be public.

   1.3 PURPOSE OF THESE STANDARDS

   These standards are designed for use in imposing a sanction or sanctions following a determination by clear and convincing evidence that a member of the legal profession has violated a provision of the Rules Regulating The Florida Bar (or applicable standard under the laws of the jurisdiction where the proceeding is brought). Descriptions in these standards of substantive disciplinary offenses are not intended to create grounds for determining culpability independent of those Rules. The Standards constitute a model, setting forth a comprehensive system for determining sanctions, permitting flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct. They are designed to promote: (1) consideration of all factors relevant to imposing the appropriate level of sanctions in an individual case; (2) consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline; (3) consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions.

2. SANCTIONS

   2.1 SCOPE

   A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgement that the lawyer has engaged in professional misconduct.

   2.2 DISBARMENT

   Disbarment terminates the individual's status as a lawyer. Where disbarment is not permanent, procedures should be established for a lawyer who has been disbarred to apply for readmission, provided that:

   (1) no application should be considered for five years from the effective date of disbarment; and

   (2) the petition must show by clear and convincing evidence;

   (a) successful completion of the bar examination; and

   (b) rehabilitation and fitness to practice law.

   2.3 SUSPENSION

   Suspension is the removal of a lawyer from the practice of law for a specified minimum period of time. A suspension of ninety (90) days or less shall not require proof of rehabilitation or passage of the bar examination. A suspension of more than ninety (90) days shall require proof of rehabilitation and may require passage of all or part of the Florida Bar examination. No suspension shall be ordered for a specific period of time in excess of three (3) years.

   2.4 EMERGENCY SUSPENSION

   Emergency suspension is the temporary suspension of a lawyer from the practice of law pending imposition of final discipline. Emergency suspension includes:

   (a) suspension upon conviction of a "serious crime;" or

   (b) suspension when the lawyer's continuing conduct is or is likely to cause immediate and serious injury to a client or the public.

   2.5 PUBLIC REPRIMAND

   Public reprimand is a form of public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer's right to practice.

   2.6 ADMONISHMENT

   Admonishment is the lowest form of discipline which declares the conduct of the lawyer improper, but does not limit the lawyer's right to practice.

   2.7 PROBATION

   Probation is a sanction that allows a lawyer to practice law under specified conditions. Probation can be imposed alone or in conjunction with any other disciplinary measure; probation can also be imposed as a condition of readmission or reinstatement.

   2.8 OTHER SANCTIONS AND REMEDIES

   Other sanctions and remedies which may be imposed include:

   (a) restitution;

   (b) assessment of costs;

   (c) limitation upon practice;

   (d) appointment of a receiver;

   (e) requirement that the lawyer take the bar examination or professional responsibility examination;

   (f) requirement that the lawyer attend continuing education courses; and

   (g) other requirements that the state's highest court or disciplinary board deems consistent with the purposes of lawyer sanctions.

   2.9 RECIPROCAL DISCIPLINE

   Reciprocal discipline is the imposition of a disciplinary sanction on a lawyer who has been disciplined in another jurisdiction.

   2.10 READMISSION AND REINSTATEMENT

   Procedures have been established to allow a disbarred lawyer to apply for readmission. Procedures have been established to allow a suspended lawyer to apply for reinstatement.

3. FACTORS TO BE CONSIDERED IN IMPOSING SANCTIONS

   3.0 GENERALLY

   In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:

   (a) the duty violated;

   (b) the lawyer's mental state;

   (c) the potential or actual injury caused by the lawyer's misconduct; and

   (d) the existence of aggravating or mitigating factors.

   4.0 VIOLATIONS OF DUTIES OWED TO CLIENTS

   4.1 FAILURE TO PRESERVE THE CLIENT'S PROPERTY

   Absent aggravating or mitigating circumstances, and upon application of the factors set out in 3.0, the following sanctions are generally appropriate in cases involving the failure to preserve client property:

   4.11 Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury.

   4.12 Suspension is appropriate when a lawyer knows or should know that he is dealing improperly with client property and...