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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Florida Legal Ethics

INTRODUCTION

0.1:100   Sources of Law and Guidance

0.1:101      Professional Codes

These rules are available in Florida Rules of Court: State (West 2001) and The Florida Bar Journal Vol. LXXIV, No. 8 (Sept. 2000). The main section relating to ethics is Chapter 4. The rules numbered in Chapter 4 correspond, for the most part, to the Model Rules. For example, model rule 1.1 is numbered rule 4-1.1. However, other chapters also relate to ethics. Chapter 3, Rules of Discipline, contains standards of conduct and procedures governing discipline of attorneys. Chapter 5 contains rules regulating trust accounts. Chapter 6 contains rules regarding legal specialization and education programs. Chapter 10 contains rules relating to the investigation and prosecution of the unauthorized practice of law. And Chapter 15 governs the standing committee on advertising.

0.1:102      "Other" Law and Moral Obligation

Other sources relating to lawyer conduct in Florida include: Florida Standards for Imposing Lawyer Sanctions; Procedures for Ruling on Questions of Ethics; Ideals and Goals of Professionalism (aspirational guidelines adopted by the Florida Bar Board of Governors, May 16, 1990); The Creed of Professionalism (adopted by the Executive Council of the Trial Lawyers Section of the Florida Bar and approved by the Florida Conference of Circuit Judges); Professional Ethics of the Florida Bar (indexed compilation of formal advisory opinions issued by the Professional Ethics Committee of the Florida Bar; available at the Florida Bar web site: http://www.flabar.org); and cases decided by state and federal courts. The Standing Committee on Advertising publishes a helpful resource on lawyer advertising in Florida: the Handbook on Lawyer Advertising and Solicitation (6th ed. Mar. 2000, revised Aug. 2000). The handbook can be downloaded from the Florida Bar web site.

0.1:103      Background of the Florida Rules of Professional Conduct

Until January 1, 1987, Florida followed the Model Code. Effective January 1, 1987, the Florida Supreme Court adopted the Rules Regulating the Florida Bar, which integrated all rules regarding the Bar into a single document. Florida Bar re: Rules Regulating the Fla. Bar, 494 So. 2d 977 (Fla. 1986).

0.1:104      Unusual Aspects of the Florida Ethics Rules

FL Rule 4-1.5 contains detailed restrictions on contingency fees, including the requirement that contingency fee arrangements be reduced to a written contract and specific language that must be contained in any contingency fee contract. The rule also contains maximum percentages for contingency fees, with an “out” provision permitting a client to confidentially petition the court for a contingency fee in excess of the maximum if the client is unable to obtain the client’s attorney of choice. Florida also requires a lengthy "Statement of Client's Rights for Contingency Fees," to be read by the client and signed by both the client and the lawyer at the outset of the representationFlorida's aspirational rule regarding pro bono public service provides that all Florida lawyers should provide pro bono legal services to the poor. FL Rule 4-6.1(a). However, failure to do so will not subject a lawyer to discipline. FL Rule 4-6.1(b). Members may satisfy this aspirational goal each year by providing 20 hours of pro bono legal service to the poor, or by contributing $350 to a legal aid organization, or by a combination of legal service and financial contribution. FL Rule 4-6.1(b), Comment, FL Rule 4-6.1. In some cases, the pro bono requirements may be satisfied collectively by members of a law firm which has previously filed the collective satisfaction plan with the circuit pro bono committee. FL Rule 4-6.1(c). Such a plan may involve a law firm's handling a major case or establishing a full-time community or public service staff. FL Rule 4-6.1(c). While providing pro bono services is aspirational, the rules contain a mandatory reporting requirement. Every lawyer is required to report the number of hours of pro bono services provided and the amount contributed to a legal aid organization, or that the lawyer has been unable to provide or is exempt from providing pro bono services. FL Rule 4-6.1(d).

On December 17, 1999 the Florida Supreme Court adopted a substantial revision of the advertising rules. Amendments to Rules Regulating The Florida Bar—Advertising Rules, 762 So. 2d 392 (Fla. 1999). The Comment to FL Rule 4-7.1 provides: "Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements utilizing slogans or jingles, oversized electrical & neon signs, or sound trucks fail to meet these standards and diminish public confidence in the legal system." The amended Florida advertising rules, however, go far beyond prohibiting such extreme examples of unprofessional advertising. Indeed, in his concurring opinion in Justice Overton stated that he believed the rules, as amended, go as far as possible under current law of the United States Supreme Court.

0.2:200   Forms of Lawyer Regulation in Florida

The Florida Bar has an Internet web site (http://www.FLABAR.org), which contains information regarding all aspects of The Florida Bar's activities in very user friendly form. Included are listings of the Board of Governors, all sections and divisions, office locations, membership, and Bar staff contacts with their direct phone numbers. The web page also includes the text of the Rules Regulating The Florida Bar, Standards for Imposing Lawyer Sanctions, and a fully indexed set of the advisory Ethics Opinions issued by The Florida Bar.

The Florida Bar also has an ethics hotline: 1-800/235/8619. A member of the Florida Bar can call the ethics hotline to obtain an informal advisory opinion on the attorney's own proposed conduct.

0.2:210      Judicial Regulation

The Florida Supreme Court alone has jurisdiction to regulate the discipline of attorneys. Fla. Const., art. V, § 15; Pantori v. Stephenson, 384 So. 2d 1357 (Fla. 1980). However, FL Rule 3-7.8 recognizes the authority of trial courts and lower appellate courts to conduct their own attorney disciplinary proceedings, subject to appellate review and with the caveat that the rule should not be read to "discourage or restrict the right and responsibility" of a judge to refer such matters to The Florida Bar.

The Supreme Court has held that unionization of attorneys employed by the state would not interfere with the exclusive authority of the Supreme Court to regulate lawyers. Chiles v. State Employees Attorneys Guild, 734 So. 2d 1030 (Fla. 1999) [see § 1.7:210 for a discussion of this case].

As recognized in the Preamble, "the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons." Preamble, RPC. Thus, litigants do not have standing to enforce the Rules. Preamble, RPC. In Smith v. Bateman Graham, P.A., 680 So. 2d 497 (Fla. 1st DCA 1996), the court held that a law firm had no standing to enforce, against a departing member of the firm, the rule prohibiting written solicitation of prospective clients who already have legal representation (Rule 4-7.4(b)(1)(B)).

0.2:220      Bar Organizations

The Board of Governors is the governing body of The Florida Bar. It is composed of 51 members, consisting of the president and president elect of the Florida Bar; the president and president elect of the Young Lawyers Division; three out-of-state members of The Florida Bar; two residents of the State of Florida who are not members of The Florida Bar; and representatives from each judicial circuit of the state, apportioned according to lawyer population in the circuits. FL Rule 1-4.1. The Board of Governors has the authority to govern and administer The Florida Bar generally, though the Supreme Court of Florida retains authority to ratify any action taken by the Board of Governors or to order that any action previously taken be rescinded, or otherwise to direct the actions and activities of The Florida Bar and the Board of Governors. FL Rule 1-4.2. The Board of Governors is charged with the responsibility of enforcing the Rules of Discipline and the Rules of Professional Conduct. FL Rule 1-8.1.

The Board of Governors, pursuant to FL Rule 2-9.4, has adopted Procedures for Ruling on Questions of Ethics, which are not part of the Rules Regulating The Florida Bar. A member in good standing of The Florida Bar may make an inquiry of the ethics counsel of The Florida Bar in Tallahassee, who then issues a "staff opinion," which is advisory only. (Staff counsel also has the option of declining to issue a staff opinion, if the inquiry raises a question for which there is no previous precedent or underlying bar policy on which to base an opinion.) FL Bar Procedures for Ruling on Questions of Ethics, Rule 2. If the member disagrees with the staff opinion, or if the ethics counsel declines to issue an opinion, the member may then request an advisory ethics opinion from the professional ethics committee within 30 days of the date of the staff opinion or ethics counsel's letter declining to issue an opinion. The professional ethics committee or an established subcommittee thereof may either affirm the staff opinion or issue a committee opinion. FL Bar Procedures for Ruling on Questions of Ethics, Rule 3. A member of The Florida Bar who is advised that the staff opinion has been affirmed may seek review by the Board of Governors. A "Board Review Committee" (BRC) composed of at least seven members of the Board of Governors performs this review, and may either adopt or modify the proposed advisory opinion and render a BRC opinion that is then reported to the full Board of Governors for approval or modification. FL Bar Procedures for Ruling on Questions of Ethics, Rule 5. Any opinions rendered by staff, professional ethics committees, or the Board of Governors are advisory only and may not form the basis for action by grievance committees, referees, or the Board of Governors except upon application of the respondent as a defense in a disciplinary proceeding. FL Bar Procedures for Ruling on Questions of Ethics, Rule 9.

0.2:230      Disciplinary Agency

The Supreme Court of Florida has exclusive jurisdiction over the discipline of persons admitted to the practice of law in Florida. FL Rule 3-3.1; Pantori v. Stephenson, 384 So. 2d 1357 (Fla. 1980). Its jurisdiction is administered through the Board of Governors, grievance committees, and referees, who are granted such jurisdiction and powers necessary to conduct the proper and speedy disposition of any investigation or cause, subject to the supervision and review of the Supreme Court. The power to render an ultimate judgment in disciplinary proceedings always rests with the Supreme Court; the judgment of the Board of Governors is treated simply as a recommendation. Florida Bar v. Abramson, 199 So. 2d 457 (Fla. 1967).

Trial and appellate courts may exercise their supervisory powers by referring attorneys to The Florida Bar for disciplinary investigation. State v. Murray, 443 So. 2d 955, 956 (Fla. 1984). But see Johnnides v. Amoco Oil Co., 778 So. 2d 443, 444 n.2 (Fla. 3d DCA 2001) in which a very frustrated Judge Schwartz expressed his utter lack of confidence in the effectiveness of referring lawyers to The Florida Bar:

While in light of [the lawyer's] egregious conduct, we feel duty bound by Canon 3D(2), Code of Judicial Conduct hereby to report him to the Florida Bar, we have no illusions that this will have any practical effect. Our skepticism is caused by the fact that, of the many occasions in which members of this court reluctantly and usually only after agonizing over what we thought was the seriousness of doing so—have found it appropriate to make such a referral about a lawyer's conduct in litigation, e.g., Michaels v. State, 773 So. 2d 1230 (Fla. 3d DCA 2000); Afrazeh v. Miami Elevator Co., 769 So. 2d 399 (Fla. 3d DCA 2000); Visoly v. Security Pac. Credit Corp., 768 So. 2d 482 (Fla. 3d DCA 2000); Quinones v. State, 766 So. 2d 1165 (Fla. 3d DCA 2000); Osman v. McKee, 762 So. 2d 950 (Fla. 3d DCA 2000); Fonticoba v. State, 725 So. 2d 1244 (Fla. 3d DCA 1999); Izquierdo v. State, 724 So. 2d 124 (Fla. 3d DCA 1998); Lewis v. State, 711 So. 2d 205 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1109 (Fla. 1998); Southern Trenching, Inc. v. Diago, 600 So. 2d 1166 (Fla. 3d DCA 1992), review denied, 613 So. 2d 3 (Fla. 1992); Sharff, Wittmer & Kurtz, P.A. v. Messana, 581 So. 2d 906 (Fla. 3d DCA 1991), review denied, 592 So. 2d 592 So. 2d 681 (Fla. 1991); Rapid Credit Corp. v. Sunset Park Centre, Ltd., 566 So. 2d 810 (Fla. 3d DCA 1990)(Schwartz, C.J. specially concurring); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), review denied, 488 So. 2d 832 (Fla. 1986); Molina v. State, 447 So. 2d 253 (Fla. 3d DCA 1983), pet. for review denied, 447 So. 2d 888 (Fla. 1984); Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982), none has resulted in the public imposition of discipline—not even a reprimand—whatever. See also Morris v. NN Investors Life Ins. Co., 553 So. 2d 1306 (Fla. 3d DCA 1989)(Schwartz, C.J. dissenting), review denied, 563 So. 2d 633 (Fla. 1990). In fact the reported decisions do not reflect that the Bar has responded concretely at all to the tide of uncivil and unprofessional conduct which has been the subject of so much article-writing, sermon-giving, seminar-holding and general hand-wringing for at least the past twenty years. See 5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1998) (referring to Bar's finding of no probable cause for discipline of attorney who used expletives in motion for rehearing). Perhaps the ultimate example of the Bar's attitude toward the problem is the case of Harvey Hyman, who was the subject of three separate complaints by this court to the Bar, see Fonticoba, 725 So. 2d at 1244; Izquierdo, 724 So. 2d at 124; Lewis, 711 So. 2d at 205; see also State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995), but who avoided any sanction by entering a diversion program which consisted entirely of the arduous requirement of attending a day-long seminar on trial ethics. Speaking for himself alone, the present writer has grown tired of felling trees in the empty ethical forest which seems so much a part of the professional landscape in this area. Perhaps the time has come to apply instead the rule of conservation of judicial resources which teaches that a court should not require a useless act, even of itself.

0.2:240      Disciplinary Process

Bar Counsel

Inquiries regarding possible disciplinary cases are first screened by bar counsel, who reviews the inquiry to determine whether the alleged conduct, if proven, would constitute a violation of the Rules Regulating The Florida Bar warranting discipline. (Fee disputes may be referred to circuit court arbitration committees for arbitration pursuant to Chapter 14, Rules Regulating The Florida Bar. [See 1.5:250]). Bar counsel may decline to pursue the inquiry, upon determining that the facts, if proven, would not constitute a violation warranting discipline, though this decision does not preclude further action or review under the Rules. The complainant and respondent are notified of the decision not to pursue an inquiry and the reasons therefor. FL Rule 3-7.3(a).

A bar complainant who does not make a public statement has absolute immunity in a defamation action by the attorney. Tobkin v. Jarboe, 710 So. 2d 975 (Fla. 1998). The Fifth DCA extended this protection to a complainant in a defamation action by the attorney's client. Magre v. Charles, 729 So. 2d 440, 443 (Fla. 5th DCA 1999). The statements about the client were made in a bar complaint against the attorney and were "simply part of the background of the dispute." Id.

If bar counsel decides to pursue an inquiry, a disciplinary file is opened and the inquiry is considered a complaint, provided it was filed in writing and under oath. FL Rule 3-7.3(b)&(c). Bar counsel then investigates the case, and may dismiss the case if, after complete investigation, bar counsel determines the facts show respondent did not violate the Rules. Again, dismissal by bar counsel does not preclude further action under the Rules. Bar counsel may also recommend diversion of disciplinary cases involving minor misconduct to practice and professionalism enhancement programs. FL Rule 3-7.3(d)&(e). Bar counsel may refer cases to a grievance committee for further investigation or action, and may recommend specific action on a case referred to the grievance committee. FL Rule 3-7.3(f).

Grievance Committee

Each judicial circuit has at least one grievance committee, composed of at least 3 members; at least one-third of the members of a grievance committee must be non-lawyers. See generally FL Rule 3-3.4 regarding the composition of circuit and special grievance committees.

After investigation, see FL Rule 3-7.4(a)-(i), the grievance committee may terminate the investigation by finding that no probable cause exists to believe that respondent has violated the Rules. FL Rule 3-7.4(j)&(k). If the grievance committee finds probable cause, the bar counsel assigned to the committee prepares a record of its investigation and a formal complaint. The committee also has the option of recommending admonishment for minor misconduct, a finding that the respondent may accept or reject. If the respondent rejects the admonishment, the matter is referred for a full hearing, as explained more fully below. FL Rule 3-7.4(m)&(n). The committee may also recommend diversion of the matters involving minor misconduct to a remedial practice and professionalism enhancement program. FL Rule 3-7.4(o).

Referee

At this point, the matter becomes an adversary administrative proceeding conducted before a referee appointed by the Chief Justice, with discovery conducted pursuant to the Florida Rules of Civil Procedure. The referee is not bound by formal rules of evidence. Florida Bar v. Vining, 707 So. 2d 670, 673 (Fla. 1998). After the evidentiary hearing, the referee files with the Supreme Court a report including: (1) findings of fact as to each item of misconduct alleged; (2) recommendations as to whether the respondent should be found guilty of misconduct justifying disciplinary measures; (3) recommendations as to disciplinary measures to be applied; (4) a statement of any known past disciplinary measures taken against the respondent; and (5) a statement of costs incurred and a recommendation as to taxing of such costs. See FL Rule 3-7.6 for details of procedures before a referee.

Florida Supreme Court

The referee’s report is subject to review by the Supreme Court, under the procedures set forth in FL Rule 3-7.7. The Supreme Court presumes the referee’s findings of fact are correct, and upholds such findings unless they are clearly erroneous or without support in the record. Florida Bar v. Berman, 659 So. 2d 1049 (Fla. 1995); Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994). The burden of proof in a Supreme Court review proceeding is on the disciplined party to demonstrate that the referee’s report is erroneous, unlawful, or unjustified. Florida Bar v. Scott, 566 So. 2d 765 (Fla. 1990). The referee’s legal conclusions are subject to broader review than the findings of fact. Florida Bar v. Beach, 675 So. 2d 106, 108 (Fla. 1996). The Supreme Court also has a broader scope of review regarding the discipline to be imposed because the Supreme Court has the ultimate responsibility to order a sanction. Florida Bar v. Vining, 707 So. 2d 670, 673 (Fla. 1998). However, the court will not second-guess a referee’s recommended discipline if that discipline has a reasonable basis in existing caselaw. Florida Bar v. Jordan, 705 So. 2d 1387, 1391 (Fla. 1998). The Supreme Court recognizes that the referee “occupies a favored vantage point for assessing key considerations--such as a respondent’s degree of culpability and . . . cooperation, forthrightness, remorse, and rehabilitation (or potential for rehabilitation).” Florida Bar v. Weisser, 721 So. 2d 1142 (Fla. 1998). In Florida Bar v. Klausner, 721 So. 2d 720 (Fla. 1998), the court upheld the referee’s recommended discipline of suspension even though the court found that disbarment may also have been appropriate. The court commended the referee for producing a chart showing the offenses and disciplines in 40 disciplinary cases.

Mediation

The Florida Bar has established a grievance mediation program. Amendments to Rules Regulating the Florida Bar--The Florida Bar Grievance Mediation Program, 717 So. 2d 498 (Fla. 1998). A standing committee appointed by the Board of Governors administers the program. FL Rule 3-8.1(b). The Board of Governors adopts policies to implement the program, which must include criteria for determining which cases should be referred to mediation. See Rule 3-8.1(d). Proceedings under this rule are also governed by the Florida Rules for Certified and Court Appointed Mediators. FL Rule 3-8.1(i).

Mediators, who need not be members of the Florida Bar, must be certified by the standing committee. FL Rule 3-8.1(c)(1). They may be disqualified under criteria provided in the Florida Rules for Certified and Court Appointed Mediators. FL Rule 3-8.1(h)(2). Disciplinary cases may be referred to mediation at nearly any point in the disciplinary process by: (1) bar counsel, with consent of the parties; (2) grievance committees, with concurrence of bar counsel and consent of the parties; (3) the board of governors; (4) referees, with the agreement of bar counsel and the member of the board of governors designated to review the disciplinary matter; and (5) the Supreme Court of Florida. FL Rule 3-8.1(h)(1)(A)-(E).

Upon the conclusion of the mediation, the mediator is to report to the committee (1) whether the matter settled without a formal mediation conference; (2) if a formal mediation was held, who attended and who did not; and (3) whether the mediation resulted in complete settlement, partial settlement or impasse. FL Rule 3-8.1(h)(3)(A)-(E). If the mediator discovers disciplinary violations which are not proper for mediation, or determines that a party is incompetent to participate in the mediation, the mediator must provide a statement that the matter is no longer proper for mediation, without elaboration as to why. FL Rule 3-8.1(h)(3)(F).

0.2:245      Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude

In the absence of aggravating or mitigating factors, disbarment is appropriate when:

(a) a lawyer is convicted of a felony under applicable law;

(b) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft;

(c) a lawyer engages in the sale, distribution or importation of controlled substances;

(d) a lawyer engages in the intentional killing of another;

(e) a lawyer attempts or conspires or solicits another to commit any of the offenses listed in sections (a)-(d); or

(f) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.

Lawyer Sanction Standards 5.11. While disbarment is the presumptively correct sanction for a felony conviction, such disbarment is not automatic. Florida Bar v. Bustamante, 662 So. 2d 687 (Fla. 1995). There have been several cases in which a felony conviction did not result in disbarment. Florida Bar v. Smith, 650 So. 2d 980 (Fla. 1995) (lawyer acted without dishonest or selfish motives); Florida Bar v. Diamond, 548 So. 2d 1107 (Fla. 1989) (character evidence was so strong that judge who sat on lawyer's criminal case testified on his behalf at the disciplinary proceeding).

0.2:250      Sanctions in Judicial Proceedings

Sanctions in disciplinary proceedings must serve three purposes. They must be: (1) fair to society by protecting the public from unethical conduct without being unduly harsh; (2) fair to the attorney by the imposition of a sanction while encouraging rehabilitation; and (3) severe enough to deter similar conduct. Florida Bar v. Berman, 659 So. 2d 1049, 1051 (Fla. 1995).

Rule 3-5.1 of the Rules Regulating The Florida Bar covers types of discipline that may be imposed. Upon an adjudication of guilt of misconduct, a member of The Florida Bar may be subject to a range of discipline, depending on the severity of the offense(s) and the member’s disciplinary history. A finding of “minor misconduct” subjects the member to admonishment (also known as a private reprimand, Florida Bar v. Neckman, 616 So. 2d 31, 32 (Fla. 1993)). Misconduct is generally not regarded as “minor” if the misconduct: (1) involves misappropriation of client funds or property; (2) resulted in or is likely to result in actual prejudice (such as loss of money, legal rights, or property rights) to a client or another person (3) is of the same nature as misconduct for which the respondent has been disciplined in the past five years; (4) includes dishonesty, misrepresentation, deceit, or fraud by the respondent; or (5) constitutes commission of a felony; or if the respondent has been publicly disciplined in the past three years. See FL Rule 3-5.1(a)&(b) for full explanation of procedures surrounding findings of minor misconduct. The presumptive penalty for the misuse of client funds is disbarment. Florida Bar v. Spears, 786 So. 2d 516 (Fla. 2001). The Florida Supreme court cited numerous cases on this issue:

see also Florida Bar v. Travis, 765 So. 2d 689 691 (Fla. 2000) ("The overwhelming majority of cases involving the misuse of client funds have resulted in disbarment regardless of the mitigation present."); Florida Bar v. Porter, 684 So. 2d 810, 813 (Fla. 1996) ("Misuse of client funds is unquestionably one of the most serious offenses a lawyer can commit. Disbarment is the appropriate sanction for this offense alone."); Florida Bar v. Tunsil, 503 So. 2d 1230, 1231 (Fla. 1986) ("In the hierarchy of offenses for which lawyers may be disciplined, stealing from a client must be among those at the very top of the list."); Florida Bar v. Breed, 378 So. 2d 783, 784 (Fla. 1979) ("The willful misappropriation of client funds should be the Bar's equivalent of a capital offense."); Florida Bar v. Burton, 218 So. 2d 748, 749 (Fla. 1969) ("The judgment of disbarment is certainly justified when an attorney misappropriates funds which he receives by virtue of his fiduciary relationship with his client."); State ex. rel. Florida Bar. v. Jarvis, 74 So. 2d 228 (Fla. 1954) (embezzlement of client funds is unprofessional conduct which justifies disbarment).

A respondent may be publicly reprimanded, by publication of the disciplinary case or by appearing before the Board of Governors of The Florida Bar for reprimand. Florida Bar v. Bosse, 689 So. 2d 268, 270 (Fla. 1997).

A respondent may be placed on probation for a period of time not less than six months nor more than three years, or for an indefinite period determined by conditions stated in the order. Conditions may include completion of a legal ethics study course, supervision of the respondent’s work by another member of The Florida Bar, making reports to a designated agency, and supervision over fees and trust accounts. See FL Rule 3-5.1(c) for full explanation of the conditions of probation.

A respondent may be suspended from the practice of law for a definite period of time or for an indefinite period to be determined by the conditions imposed by the judgment. A suspension of more than 90 days requires proof of rehabilitation and may require passage of all or part of the Florida Bar examination. Thus, many cases result in 91-day suspensions. See, e.g., Florida Bar v. Sofo, 673 So. 2d 1 (Fla. 1996). The Supreme Court held that a respondent who was suspended in Florida until his reinstatement in Minnesota was required to prove rehabilitation. The court found that the suspension was for greater than 90 days because the respondent was suspended in Minnesota indefinitely without a right to seek reinstatement for 6 months. Florida Bar v. Shinnick, 731 So. 2d 1265 (Fla. 1999). No suspension may be ordered for a specific period exceeding three years. See FL Rule 3-5.1(e) for details of suspension from the practice of law. Finally, a judgment of disbarment terminates the respondent’s status as a member of the bar. Except as otherwise provided in the rules, no application for readmission may be tendered within five years of the date of disbarment or such longer period as the court might determine. See FL Rule 3-5.1(f) for details of disbarment, and FL Rule 3-5.1(g)-(j) for further details regarding notice to clients, restitution, forfeiture of fees, and disciplinary resignation.

Disciplinary action may also result in revocation of a lawyer's board certification. FL Rule 6-3.7(b); Florida Bar v. Morse, 784 So. 2d 414 (Fla. 2001).

A respondent my also be required to pay costs. FL Rule 3-7.6(o). A respondent who is found not guilty and not subject to any discipline may not be required to pay any portion of the bar’s costs. Florida Bar v. Williams, 734 So. 2d 417 (Fla. 1999). However, a respondent can be required to pay costs where the Bar is partially successful. Id. An attorney being reinstated can be required to pay costs. Id. at 4 n.4; FL Rule 3-7.10(o). In fact, the supreme court has ruled that it is an abuse of discretion for the referee to refuse to assess costs against a guilty lawyer baseed upon the lawyer’s inability to pay. Florida Bar v. Lechtner, 666 So. 2d 892 (Fla. 1996). In such cases, "the appropriate course is for the parties to establish an agreeable payment."

The Florida Supreme Court has held that "referees can recommend any permissible discipline that they deem appropriate." The court has upheld sanctions that were not limited to those included in Rule 3-5.1. Florida Bar v. Lawless, 640 So. 2d 1098 (Fla. 1994). In Lawless, the lawyer, who had been found guilty of failing to adequately supervise a paralegal working on an immigration case, was ordered to refrain from supervising paralegals and to remove his name from all lawyer referral lists during his suspension and three-year probation.

The court has also approved sanctions that required grievance committee supervision of a lawyer and the submission of a written "tickler" system, Florida Bar v. Whitaker, 596 So. 2d 672 (Fla. 1992), and sanctions that included a psychiatric exam, Florida Bar v. Dubbeld, 594 So. 2d 735 (Fla. 1992).

An attorney may be required to obtain Bar-approved co-counsel before representing clients. Florida Bar v. Roberts, 689 So. 2d 1049, 1051 (Fla. 1997).

In Florida Bar v. Birdsong, 661 So. 2d 1199 (Fla. 1995), the court rejected the referee’s recommendation that the respondent be limited to a fifty-five hours workweek. The court found that the monitoring of this condition would be awkward. In addition, respondent was required to take three courses, including a personal/professional time management course which “should be sufficient to impress upon her the importance of maintaining a workload that can be managed in a professional manner.” Id. at 1201.

Financial hardship to those the lawyer supports is not reason for lighter punishment. Florida Bar v. Cibula, 725 So. 2d 360 (Fla. 1998).

See § 8.1:220 regarding admission requirements.

See United States v. Hersh, 15 F. Supp. 2d 1310 (S.D. Fla. 1998) in which the lawyer was disqualified because he would be suspended before the trial ended.

Aggravating/Mitigating Factors:

Aggravating and mitigating factors are set forth in the Florida Standards for Imposing Lawyer Sanctions. Aggravating factors, which may justify an increase in the degree of discipline imposed, include:

(a) prior disciplinary offenses;

(b) dishonest or selfish motive;

(c) a pattern of misconduct;

(d) multiple offenses;

(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;

(f) submission of false evidence, false statements, other deceptive practices during the disciplinary process;

(g) refusal to acknowledge wrongful nature of conduct;

(h) vulnerability of victim;

(i) substantial experience in the practice of law;

(j) indifference to making restitution; and

(k) obstruction of fee arbitration awards by refusing or intentionally failing to comply with a final order.

Lawyer Sanction Standards 9.22. Mitigating factors, which may justify a reduction in the degree of discipline imposed, include:

(a) absence of a prior disciplinary record;

(b) absence of a dishonest or selfish motive;

(c) personal or emotional problems;

(d) timely good faith effort to make restitution or to rectify consequences of misconduct;

(e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;

(f) inexperience in the practice of law;

(g) character or reputation;

(h) physical or mental disability or impairment;

(i) unreasonable delay in disciplinary proceeding provided that the respondent id not substantially contribute to the delay and provided further that the respondent has demonstrated specific prejudice resulting from that delay;

(j) interim rehabilitation;

(k) imposition of other penalties or sanctions;

(l) remorse;

(m) remoteness of prior offenses; and

(n) prompt compliance with a fee arbitration award.

Remorse occurs when a lawyer is not just sorry for getting caught, but is "deeply ashamed at having violated his own high ethical standards." Florida Bar v. Brown, 2001 WL 776667 (Fla., July 12, 2001).

Lawyer Sanction Standards 9.32. Factors which are considered neither aggravating nor mitigating include:

(a) forced or compelled restitution;

(b) agreeing to the client's demand for certain improper behavior or result;

(c) withdrawal of complaint against the lawyer;

(d) resignation prior to completion of disciplinary proceedings;

(e) complainant's recommendation as to sanction;

(f) failure of injured client to complain; and

(g) an award has been entered in a fee arbitration proceeding.

Lawyer Sanction Standards 9.4.

Compelled restitution (as by a settlement agreement) is neither an aggravating nor a mitigating factor. Florida Bar v. Lecznar, 690 So. 2d 1284, 1285 (Fla. 1997)

0.2:260      Criminal and Civil Liability

[See 1.1:300]

0.2:270      Federal Courts and Agencies

All three Federal district courts in Florida have expressly adopted the Rules of Professional Conduct as standards of practice in their jurisdictions. The U.S. District Court for the Northern District has adopted Rule 11.1(G)(1), which states that “the professional conduct of all members of the bar of this district shall be governed by the Rules of Professional Conduct of the Rules Regulating The Florida Bar.”

The U.S. District Court for the Middle District has adopted Rule 2.04(c), stating that “The professional conduct of all members of the bar of this Court... shall be governed by the Model Rules of Professional Conduct of the American Bar Association as modified and adopted by the Supreme Court of Florida to govern the professional behavior of the members of The Florida Bar.” See McPartland v. ISI Inv. Servs., Inc., 890 F. Supp. 1029 (M.D. Fla. 1995).

The U.S. District Court for the Southern District has adopted Rule 11.1(c), stating that “The standards of professional conduct of members of the Bar of this Court shall include the current Rules Regulating The Florida Bar. For a violation of any of these canons in connection with any matter pending before this Court, an attorney may be subjected to appropriate discipline.” See United States v. Miranda, 936 F. Supp. 945 (S.D. Fla. 1996). Rule I.A. of the Southern District’s Rules Governing Attorney Discipline, states that “Acts and omissions by an attorney admitted to practice before this Court... which violate the Rules of Professional Conduct, Chapter 4 of the Rules Regulating The Florida Bar shall constitute misconduct and shall be grounds for discipline....”

Attorneys practicing before the Eleventh Circuit Court of Appeals are governed by the ABA Model Rules, pursuant to Rule 1.A. of Addendum Eight, Rules Governing Attorney Discipline in the U.S. Court of Appeals for the Eleventh Circuit. In practice, the Eleventh Circuit commonly makes reference to and applies the Rules Regulating The Florida Bar. See, e.g., Rentclub, Inc. v. Transamerica Rental Fin. Corp., 43 F.3d 1439 (11th Cir. 1995).

State rules of professional conduct apply to federal government attorneys. 28 U.S.C. § 530B.

0.2:280      Ethics Rules Applied in Federal Courts in Florida

State ethics rules do not govern admissibility of evidence in federal court. United States v. Lowery, 166 F.3d 1119, 1125 (11th Cir. 1999).

"The rights and obligations of parties to a contingent fee contract involving federal litigation are governed by state law." Olmsted v. Emmanuel, 783 So. 2d 1122 (Fla. 1st DCA, 2001) (citing Zaklama v. Mount Sinai Med. Ctr., 906 F.2d 650, 652 (11th Cir. 1990)).

0.3:300   Organization of This Library and the Model Rules

This narrative follows the outline of the State Legal Ethics Project which generally follows the outline of the Model Rules, but includes additional topics of interest.

0.4:400   Abbreviations, References and Terminology

The Florida Rules generally adopt the definitions of the Model Rules, with a few minor exceptions, as noted below.

0.4:401      Abbreviations and Short-Hand References

The Rules Regulating the Florida Bar are abbreviated as “FL Rule ___.” The Rules of the Supreme Court Relating to Admissions to the Bar are abbreviated as “Bar Admissions Rule ___.” Opinions of the Florida Bar Committee on Professional Ethics are abbreviated as "FL Eth. Op. ____." The Florida Rules of Judicial Administration are abbreviated as "FL Rule Jud. Admin. ___."

0.4:410      "Belief" or "Believe"

The Florida rule definition is identical to the Model Rule definition.

0.4:420      "Consults" or "Consultation"

The Florida rule definition is identical to the Model Rule definition.

0.4:430      "Firm" or "Law Firm"

The Florida rule definition is identical to the Model Rule definition, except that the referenced Comment is from FL Rule 4-1.10 rather than FL Rule 4-1.9, reflecting the fact that Florida has not tracked the ABA's 1989 amendments of MR 1.9 and 1.10.

0.4:440      "Fraud"

The Florida rule definition is identical to the Model Rule definition.

0.4:450      "Knowingly," "Known," or "Knows"

The Florida rule definition is identical to the Model Rule definition.

0.4:460      "Partner"

The Florida rule definition is identical to the Model Rule definition.

0.4:470      "Reasonable" or "Reasonably"

The Florida rule definition is identical to the Model Rule definition.

0.4:480      "Reasonable belief" or "Reasonably believes"

The Florida rule defines this term as denoting that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

0.4:490      "Substantial"

The Florida rule definition is identical to the Model Rule definition.

0.4:500   Additional Definitions in Florida

"Lawyer" denotes a person who is a member of The Florida Bar or otherwise authorized to practice in any court of the State of Florida.