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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.1:101      Model Rule Comparison

FL Rule 4-8.1 is identical to MR 8.1.

8.1:102      Model Code Comparison

DR 1-101(A) provides that a lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with his application for admission to the bar. DR 1-101(B) prohibits a lawyer from furthering the application for admission of another person he knows is unqualified for admission.

8.1:200   Bar Admission

Primary Florida References: FL Rule 4-8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA §§ 21:101, 10l:1, Wolfram §§ 15.2, 15.3

8.1:210      Bar Admission Agency

The Florida Board of Bar Examiners is an administrative arm of the Supreme Court of Florida responsible for matters relating to bar admission. Bar Admission Rules 1-12.

8.1:220      Bar Admission Requirements

An applicant to the Florida Bar must successfully complete the Florida Bar Examination, Bar Admission Rule 2-11, and provide satisfactory evidence of good moral character. Bar Admission Rule 2-12.

Character and Fitness:

“An attorney should be one whose record of conduct justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them.” Bar Admission Rule 3-10. Admission may be denied for “[a] record manifesting a deficiency in the honesty, trustworthiness, diligence, or reliability of an applicant or registrant.” Bar Admission Rule 3-11. The burden of proof is on the applicant. Once the applicant makes a prima facie showing of good moral character, the burden of going forward with the proof shifts to the Board. The applicant is not required to prove the falsity of the charges. However, the burden of proof does not shift; it stays with the applicant. Florida Bd. of Bar Examiners re R.D.I., 581 So. 2d 27, 29 (Fla. 1991).

There are several grounds for further inquiry into the character and fitness of an applicant:

(a) unlawful conduct;

In determining whether an applicant has engaged in unlawful conduct, the Board is not bound by a jury’s acquittal of the applicant on criminal charges. Florida Bd. of Bar Examiners re D.M.J., 586 So. 2d 1049, 1050 (Fla. 1991). This is because the burden of proof in Bar admission proceedings is much lower than the burden of proof in criminal proceedings. Florida Bd. of Bar Examiners re L.K.D., 397 So. 2d 673, 674 (Fla. 1981).

(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 the Bar Application, or any amendment, or in any testimony or sworn statement submitted to the Board;

Lack of candor will almost certainly result in a denial of admission to the bar. “A lack of candor on the part of an applicant is intolerable and disqualifying for membership in the Bar,” Florida Bd. of Bar Examiners re C.A.M., 639 So. 2d 612 (Fla. 1994), and “no qualification for membership in The Florida Bar is more important than truthfulness and candor.” In re Florida Bd. of Bar Examiners re E.R.M, 630 So. 2d 1046 (Fla. 1994); see also Florida Bd. of Bar Examiners re R.B.R., 609 So. 2d 1302, 1304 (Fla. 1992) (“This Court will not tolerate a lack of candor from Bar applicants.”); Florida Bd. of Bar Examiners re J.H.K., 581 So. 2d 37, 39 (Fla. 1991) (fact that applicant was accused of eight juvenile offenses was not disqualifying, but lack of candor about the offenses was). However, lack of candor “does not automatically prevent admission.” Florida Bd. of Bar Examiners re L.M.S., 647 So. 2d 838, 839 (Fla. 1994) (involving isolated incident); see also In re V.M.F., 491 So. 2d 1104, 1107 (Fla. 1986) (applicant admitted despite isolated incident of lack of candor about drug arrest in Bar application where applicant had “led an exemplary life” since arrest).

Denial of conduct that has not been proved is not considered lack of candor. In Florida Board of Bar Examiners re G.J.G., 709 So. 2d 1377 (Fla. 1998) the applicant cheated on the bar exam. At the investigative hearing he denied having cheated on the bar exam. Therefore, the Board charged his lack of candor as a separate basis for denial of admission. The court stated:

The Board is certainly justified in requiring absolute candor from applicants for admission and in considering a lack of candor when making its recommendation. However, a charge and finding that an applicant falsely denied an act which, at the time of the charge, had not yet been proven, puts the applicant between the proverbial “rock and a hard place,” with a choice either to maintain innocence and fail to meet the Board’s standard of candor or admit the charge, though it may not be true, and relieve the Board of its burden of proof in the bar admission proceedings.

Id. at 1380. Nevertheless, the Court denied admission because of the cheating incident and later conduct. See also Florida Bd. of Bar Examiners re M.C.A., 650 So. 2d 34, 35 (Fla. 1995) (by charging applicant with lack of candor for continuing claim of innocence in cheating scandal that resulted in settlement, Board “presented [the applicant] with the ultimate Catch-22: by maintaining her innocence, [the applicant] can never meet the Board’s standard of candor”).

(d) misconduct in employment;

(e) acts involving dishonesty, fraud, deceit or misrepresentation;

(f) abuse of legal process;

(g) financial irresponsibility;

Bankruptcy is not necessarily conclusive proof of financial irresponsibility. “The mere fact that debts are incurred beyond a debtor’s present capacity to repay them is not, without more, an indication of immorality.” Florida Bd. of Bar Examiners re Groot, 365 So. 2d 164, 167 (Fla. 1978). In Florida Board of Bar Examiners re S.M.D., 609 So. 2d 1309 (Fla. 1992), the Court held that the applicant should be admitted, despite having filed for bankruptcy, because the Court did not believe that the applicant’s decision to declare bankruptcy was morally reprehensible. The Court noted that

The Board is rightly concerned over the morality of a person who continues to incur large debts with little or no prospect of repayment. Further, it cannot be doubted that a lawyer who is constantly in debt is more likely to succumb to temptations to the detriment of his or her clients or the public. On the other hand, the costs of a legal education are high and the ability to maintain oneself while attending school at the same time is limited. We suspect that it is the rule rather than the exception for today’s law school graduate to be in debt.

Id. at 1311. In Florida Board of Bar Examiners re G.W.L., 364 So. 2d 454 (Fla. 1978), by contrast, the court found that the applicant’s filing for bankruptcy without making any real effort at repayment of his debts was “morally reprehensible.” Id. at 460. The applicant had not suffered any unusual misfortune or financial catastrophe and the Court stated that “the principal motive of [the applicant] in filing his petition for bankruptcy was to defeat creditors who had substantially funded seven years of educational training.” Id. at 459; see also In re Florida Bd. of Bar Examiners re: J.A.F., 587 So. 2d 1309, 1310 (Fla. 1991) (applicant found to be financially irresponsible where, despite financial difficulties, he spent money for “excessive or nonessential items such as a car phone and a beeper”).

(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;

(n) any other conduct which reflects adversely upon the character or fitness of the applicant.

Bar Admission Rule 3-11.

Some things that have found not to be disqualifying for membership in the Bar:

Paying the bar admission application fee with a check that was returned for insufficient funds. Florida Bd. of Bar Examiners re C.A.M., 639 So. 2d 612 (Fla. 1994).

Bad driving record (sixteen traffic violations and three license suspensions in 9 years). Florida Bd. of Bar Examiners re N.W.R., 674 So. 2d 729 (Fla. 1996). The court held that “[t]he implications of [the applicant’s] driving record are tangential to his ability and fitness to practice law. Any disregard for the law which this might seem to suggest is tempered by the fact that his driving record has apparently been completely clear for the past two and a half years.” Id. at 731.

Rehabilitation:

An applicant who is found to have engaged in misconduct may nevertheless be admitted upon a showing of rehabilitation. Similarly, after waiting two years (or longer if provided by the Court), an applicant who has been denied admission may reapply for admission and must prove rehabilitation. Bar Admission Rule 2-13.5. Disbarred attorneys seeking readmission must also prove rehabilitation.

The burden is on the applicant to prove rehabilitation by clear and convincing evidence, "a standard which requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Ford-Kaus, 730 So. 2d 269, 276 (Fla. 1999) (citing In re Davey, 645 So. 2d 398, 404 (Fla. 1994)).

Bar Admission Rule 3-13 provides that all of the following elements of rehabilitation must be proved:

(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, religion, or community or civic service. Merely showing that an individual is now living as and doing those things he or she should have 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 applicants for admission to the Bar because service to one’s community is an implied obligation of members of the Bar.

Positive action may include activities that benefit primarily the applicant and his family, but the Court encourages more community involved service such as volunteering to assist the homeless or working as a guardian ad litem. Florida Bd. of Bar Examiners re P.T.R., 662 So. 2d 334, 337-38 (Fla. 1995).

Florida Bd. of Bar Examiners re J.J.J., 682 So. 2d 544 (Fla. 1996): The applicant had been convicted of seven felony counts in a money laundering scheme. The court held that the applicant had failed to prove the “position action” element of rehabilitation. Character witnesses who testified in general terms about his “community involvement.” The applicant admitted that he participated only sporadically in a local service organization. Even his participation in his local bar association and his pro bono legal services were not sufficient rehabilitation from his “previous egregious misconduct.”

An applicant who had pleaded no contest to petit theft and been placed on probation was found not to have been rehabilitated where the only evidence in the record was his participation in the Guardian Ad Litem program. Florida Bd. of Bar Examiners re N.W.R., 674 So. 2d 729, 731 (Fla. 1996). The court held that “[b]ecause of the serious nature of [the] misconduct . . . [the applicant] must make some extra effort to demonstrate rehabilitation sufficient to warrant his admission to the bar.” Id.

In Florida Board of Bar Examiners re D.M.J., 586 So. 2d 1049 (Fla. 1991), an applicant who had twelve years earlier conspired to import cocaine was able to show rehabilitation through testimony of witnesses, including the judge and other lawyers for whom he worked who gave him the “highest unqualified recommendation,” professors who attested to his “outstanding legal ability, honesty, generosity and integrity,” and other witnesses who testified about his outstanding charitable work.

Conditional Admission:

An applicant may be conditionally admitted. See, e.g., Florida Board of Bar Examiners re J.A.S., 658 So. 2d 515 (Fla. 1995) (applicant with drug addiction showed rehabilitation and was admitted conditioned on continued participation in Florida Lawyer’s Assistance, Inc. for three years).

Denial of Admission:

An applicant who is denied admission may be permitted to reapply in two years (or later) and show rehabilitation. Bar Admission Rule 2-13.5. If a long time has passed since the applicant passed the Bar exam, the applicant may be required to retake the exam. Florida Bd. of Bar Examiners re W.H.V.D., 653 So. 2d 386, 388 (Fla. 1995).

8.1:230      Admission on Motion

[The discussion of this topic has not yet been written.]

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

Rule 2.060(b) of the Florida Rules of Judicial Administration governs admission pro hac vice:

Attorneys of other states shall not engage in a general practice in Florida unless they are members of The Florida Bar in good standing. Upon verified motion filed with a court showing that an attorney is an active member in good standing of the bar of another state, attorneys of other states may be permitted to appear in particular cases in a Florida court. A motion for permission to appear shall be submitted with or before the attorney’s initial personal appearance, paper, motion, or pleading. The motion shall state all jurisdictions in which the attorney is an active member in good standing of the bar and shall state the number of cases in which the attorney has filed a motion for permission to appear in Florida in the preceding 3 years.

Fla. R. Jud. Admin. 2.060(b).

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary Florida References: FL Rule 4-8.1(a)
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1

Disbarment may be the appropriate sanction for a violation of Rule 4-8.1 because "'[d]ishonesty and lack of candor cannot be tolerated by a profession that relies on the truthfulness of its members.'" Florida Bar v. Budnitz, 690 So. 2d 1239, 1240 (Fla. 1997) (quoting Florida Bar v. Graham, 605 So. 2d 53, 56 (Fla. 1992)).

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary Florida References: FL Rule 4-8.1(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

[The discussion of this topic has not yet been written.]

8.1:410      Protecting Client Confidential Information

[The discussion of this topic has not yet been written.]

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

• Primary Florida References: FL Rule 4-8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-8.2
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:

8.2:101      Model Rule Comparison

FL Rule 4-8.2(a) adds mediators, arbitrators and jurors and members of the venire to the list of persons whose qualifications and integrity may not be impugned by a lawyer.

8.2:102      Model Code Comparison

DR 8-102(A) & (B) and 8-103 provide a counterpart to FL Rule 4-8.2.

8.2:200   False Statements About Judges or Other Legal Officials

Primary Florida References: FL Rule 4-8.2(a)
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram § 11.3.2

In Florida Bar v. Nunes, 734 So. 2d 393 (Fla. 1999), The Florida Bar alleged that respondent Nunes had made “inappropriate, frivolous, disparaging, and/or disrespectful remarks concerning opposing counsel,” including that opposing counsel had stolen the court file in the case. Id. at 394. The complainant also alleged that respondent had “made statements prejudicial to the administration of justice and/or that [he] knew to be false or with reckless disregard as to their truth or falsity concerning the integrity or the qualifications of the trial judges handling the [civil] litigation.” Id. at 395. The Florida Bar charged respondent with violating FL Rule 4-8.2(a). Id. at 395. In one motion, the respondent asserted that the judge, who had an extended time on the Criminal Bench, “may not have been refreshed, relative to the practice of mediation.” Id. The respondent, in a brief before the Fourth District Court of Appeal, also asserted that “thereafter, the case was assigned to [a female judge] and obviously counsel now felt that what he could not get away with from the two (2) male judges, he could get away with the female judge.” Id. The Florida Supreme Court approved the referee’s report that recommended respondent be found guilty of all ethical violations as charged by The Florida Bar. Id. at 399. The Court also ordered a three-year suspension from the practice of law, instead of the one year recommendation by the referee because respondent had a previous history of ethical breaches and was under disciplinary probation when he committed the violations at issue in this case. Id. The Court also required that respondent pay for and complete twenty-five hours of continuing legal education in ethics during his suspension. Id.

In Florida Bar v. Graham, 679 So. 2d 1181 (Fla. 1996), The Florida Bar alleged that respondent Graham, a judge, engaged in actions and activities at the Judicial Qualification Commission that were disruptive, scandalous, improper, and contemptuous. Id. at 1181. The complainant found that the respondent had continuously disregarded the instructions of the chair, intentionally delayed the proceedings, made demeaning remarks to the chair and failed to comply with the chair’s instructions for the orderly presentation of the evidence. Id. The complainant also found that respondent, while deposing Judge Thurman during the preparation of respondent’s defense, asked questions that were intended solely to harass and embarrass Judge Thurman. Id. Therefore, the Court approved the consent agreement between the parties and also approved the referee’s recommendation that respondent be found guilty of violating six Rules of Professional Conduct, one of which was Rule 4-8.2 for impugning the qualifications and integrity of a judge. Id. at 1182.

In Klepak v. State, 622 So. 2d 19 (Fla. 4th DCA 1993), the court affirmed the circuit court’s holding denying the prosecutor’s motion that defendant, who was convicted of misdemeanors, be remanded to custody of the sheriff for presentence investigation. The court wrote the opinion only to “express [its] strong disapproval” of the Assistant State Attorney’s remarks about the jurors who returned a verdict finding the defendant guilty of a lesser included misdemeanor, and not the felonies with which he was charged. Id. at 20. Mr. Milian, the Assistant State Attorney, while not in the presence of the jury, argued to the court that the jury was “made up of baffoons” and “lobotomized zombies” and suggested that the verdict was returned because the jury was “eating pizza or salads instead of deliberating.” Id. Mr. Milian also stated that the jury was “a classic reason [he does not] believe in the jury system.” Id. Not only was Mr. Milian quoted in the Sunday Fort Lauderdale Sun-Sentinel, Mr. Milain’s statements were reported to one of the jurors. Id. The court cites FL Rule 4-8.2, as well as Landry v. State, 620 So. 2d 1099 (Fla. 4th DCA 1993), which also involved Mr. Milian. While Mr. Milian’s conduct was not a point on appeal in Landry, the court found it “necessary to comment disapprovingly of the conduct of counsel in this case.” Id. at 1100. In Landry, Mr. Milian called the defense attorneys “maggots” and “poor excuses for human beings,” while the defense attorney implied that Mr. Milian was a “scumbag.” Id. at 1103.

In Florida Bar v. Broida, 574 So. 2d 83 (Fla. 1991), The Florida Bar filed two complaints against respondent Broida, who responded to the first, but ignored the second. Id. at 84. One of complainant’s claims against respondent was that she personally attacked the integrity of multiple lawyers and judges with whom she came into contact. Id. at 86. The referee thus found respondent guilty of violating FL Rule 4-8.2(a) which prohibits making statements known to be false or with reckless disregard of the truth concerning a judge’s qualifications or integrity. Id. The court suspended respondent from the practice of law for one year. Id. at 87.

In Inquiry Concerning Judge Carnesoltas, 563 So. 2d 83 (Fla. 1990), the Court reviewed a recommended action of the Judicial Qualifications Commission. The Commission alleged that Judge Carnesoltas used obscene language with respect to United States District Judge William J. Zloch. Id. The judge also, with no factual basis, falsely accused Judge Zloch of having personal animosity towards her. Id. The judge, while appearing as counsel, also allegedly engaged in an emotional outburst and made threats towards opposing counsel. Id. The Commission alleged that the judge used the power of her judicial office to “demean, ridicule and personally humiliate an attorney, who previously opposed [her] in a case . . . .” Id. The Court, citing FL Rule 4-8.2, approved the Commission’s recommendation and reprimanded Judge Carnesoltas for conduct unbecoming a judicial officer. Id. at 84-85.

8.2:300   Lawyer Candidates for Judicial Office

Primary Florida References: FL Rule 4-8.2(b)
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram §

[The discussion of this topic has not yet been written.]

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-8.3
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:

8.3:101      Model Rule Comparison

FL Rule 4-8.3(c) omits the qualification, added to MR 8.3 in 1991, that information gained by a lawyer or judge serving as a member of an approved lawyers assistance program need not be disclosed.

8.3:102      Model Code Comparison

DR 1-103(A) provides that a lawyer possessing unprivileged knowledge of a violation of DR 1-102 (misconduct) must report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary Florida References: FL Rule 4-8.3(a)
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 3, Wolfram § 12.10

In 5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1997), petitioners sought a writ of prohibition to prevent all judges from the First District Court of Appeal from presiding over the appeal. In a prior related consolidated appeal, a three-judge panel of the district court ruled against petitioners’ attorney’s clients. Id. In his motion, the attorney argued that the panel favored opposing counsel. Id. The attorney stated, “what is truly appalling is that . . . the panel in the instant appeal would buy such nonsense and give credence to such ‘total [b.s.].’” Id. at 245. The attorney further stated that “[w]hile it is possible that [opposing counsel’s] status as a finalist for position of [judge] with this Court enables him to persuade the Court with non-meritorious arguments . . . or perhaps [it is] that a Miami lawyer cannot simply get a fair shake up North . . . .” Id. The panel denied the motion for rehearing and had a clerk forward a copy of the motion to The Florida Bar to review the appropriateness of the attorney’s comments and language. Id. The Florida Bar thereafter filed a formal complaint against the attorney, but later dismissed its complaint finding no probable cause. Id. The Florida Supreme Court denied the petition and held that a Florida judge’s report of perceived attorney unprofessionalism to The Florida Bar is, in and of itself, legally insufficient to support that judge’s disqualification. Id. at 246. The Court, citing FL Rule 4-8.3(a), stated that Florida judges, just like every Florida attorney, are under an obligation to maintain the integrity of the legal profession and report to the Florida Bar any professional misconduct by a fellow attorney. Id. The Court found that the attorney showed at the very least a “substantial likelihood” that he had compromised the legal profession’s integrity; therefore, the court did not fault the district court for reporting the attorney’s behavior. Id. The Court also cited FL Rule 4-8.2(a), implying that the attorney’s innuendoes regarding the district courts impartiality violated the rule that “a lawyer shall not make a statement . . . with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . . .” Id. at 247.

In Florida Bar v. Gross, 610 So. 2d 442 (Fla. 1992), the respondent was found to have violated FL Rule 4-8.3(a) and FL Rule 4-8.4 by accepting a bribe from an attorney to lower the amount of the bond for the attorney's criminal client. Id. In Theriault v. J.S. & G. Asphalt, Inc., 617 So. 2d 437 (Fla. 4th DCA 1993) the appellee had sought sanctions against appellant’s attorney. Id. at 438. The appellee had prepared a poster listing the chronology of prior accidents allegedly suffered by appellant. Id. During a break in the trial, appellee’s counsel witnessed appellant’s counsel crouched in front of the poster, which was kept in a zippered carrying case, taking notes from it. Id. The court held that the trial court’s failure to report this matter to The Florida Bar was not subject to appellate review. Id. The court, citing FL Rule 4-8.3(a), found that unlike the trial judge, appellee’s counsel had observed the alleged misconduct of appellant’s counsel. Id. Therefore, the court held that the trial court’s determination did not prevent appellee’s counsel from filing a complaint with The Florida Bar nor did it prevent further investigation by The Florida Bar. Id.

In FL Eth. Op. 94-5 (Apr. 30, 1995), The Florida Bar was asked whether an attorney may threaten to file a disciplinary complaint against opposing counsel in order to obtain an advantage in a civil manner. The Committee stated it believed that such conduct was ethically impermissible under most circumstances because if an attorney is obligated to report another attorney’s professional misconduct, the attorney must do so rather than threaten to do so. When this opinion was written, there was no express prohibition against such conduct in the Rules of Professional Conduct. The Supreme Court has since adopted FL Rule 4-3.4(h) which states, “[a] lawyer shall not present, participate in presenting or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.” In re Amendments to the Rules Regulating the Fla. Bar, 718 So. 2d 1179, 1213-14 (1998).

In FL Eth. Op. 88-4 (Apr. 15, 1988), the Committee answered the question of whether it would be ethically permissible for an attorney to contact the opposing party for the purpose of inquiring whether the party had authorized the attorney not to appear at oral argument and whether the party was billed for the attorney’s nonappearance. The Committee held that if the inquiring attorney feels compelled to investigate the details of opposing counsel’s employment agreement with the client, the attorney should direct the inquiry to opposing counsel. If, upon that inquiry, opposing counsel’s response is unsatisfactory, the attorney should refer to FL Rule 4-8.3(a) and take the proper steps to report the misconduct.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary Florida References: FL Rule 4-8.3(b)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA § 101:206, ALI-LGL § 3, Wolfram § 12.10

There are no Florida cases or ethics opinions dealing with this provision.

8.3:400   Exception Protecting Confidential Information

Primary Florida References: FL Rule 4-8.3(c)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA § 101:204, ALI-LGL §§ 3, Wolfram § 12.10

The rule provides that disclosure of information protected by FL Rule 4-1.6 is not required. FL Rule 4-8.3(c). Additionally, the Supreme Court has adopted a limited exception for lawyers employed by or acting on behalf of the Law Office Management Assistance Service (LOMAS).

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-8.4
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:

8.4:101      Model Rule Comparison

FL Rule 4-8.4 contains several instances of misconduct not found in MR 8.4. FL Rule 4-8.4(d) lists several items constituting conduct that is prejudicial to the administration of justice, including knowing disparagement of, humiliation of or discrimination against litigants, jurors, witnesses, court personnel, or other lawyers on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristics. FL Rule 4-8.4(g) requires a lawyer to respond in writing to any inquiry by a disciplinary agency when such agency is conducting an investigation into the lawyer's conduct. FL Rule 4-8.4(h) prohibits a lawyer from willfully refusing to timely pay a child support obligation. See § 61.13015, Fla. Stat., providing for the suspension or denial of a professional license due to delinquent child support payments after exhaustion of all other remedies. FL Rule 4-8.4(i) prohibits a lawyer from engaging in sexual conduct with a client that exploits the lawyer-client relationship.

8.4:102      Model Code Comparison

DR 1-102(A) provides a general counterpart to FL Rule 4-8.4(a)-(d). DR 9-101(C) provides a counterpart to FL Rule 4-8.4(e).

8.4:200   Violation of a Rule of Professional Conduct

Primary Florida References: FL Rule 4-8.4(a)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram § 3.3

A violation of this rule is frequently added to the charges against a lawyer based on violation of other Rules of Professional Conduct. See, e.,g., Florida Bar v. Spears, 786 So. 2d 516 (Fla. 2001); Florida Bar v. Fortunato, 788 So. 2d 201 (Fla. 2001). A lawyer found guilty of having violated another rule is necessarily guilty of violating Rule 4-8.4(a). Florida Bar v. Feinberg, 760 So. 2d 933 (Fla. 2000). A lawyer was found to have violated the prohibition against violating the rules of professional conduct through the acts of another where he assisted his client in an illegal campaign contribution reimbursement scheme. Florida Bar v. Brown, 2001 WL 776667 (Fla. 2001).

8.4:300   Commission of a Crime

Primary Florida References: FL Rule 4-8.4(b)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA § 101:301, ALI-LGL § 2, Wolfram § 3.3.2

The lawyer need not be convicted or even charged with a crime for a violation of Rule 4-8.4(b) to occur. Florida Bar v. Varner, 780 So. 2d 1 (Fla. 2001). FL Rule 3-4.4 provides:

Unless modified or stayed by the Supreme Court of Florida as provided elsewhere herein, a determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction of any crime or offense that is a felony under the laws of such jurisdiction is cause for automatic suspension from the practice of law in Florida. In addition, whether the alleged misconduct constitutes a felony or misdemeanor The Florida Bar may initiate disciplinary action regardless of whether the respondent has been tried, acquitted, or convicted in a court for the alleged criminal offense; however, the board may, in its discretion, withhold prosecution of disciplinary proceedings against the respondent. The acquittal of the respondent in a criminal proceeding shall not necessarily be a bar to disciplinary proceedings nor shall the findings, judgment, or decree of any court in civil proceedings necessarily be binding in disciplinary proceedings.

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary Florida References: FL Rule 4-8.4(c)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram § 3.5.8

A violation of FL Rule 4-8.4(c) requires a showing of intent. "[I]n order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing." Florida Bar v. Fredericks, 731 So. 2d 1249 (Fla. 1999).

Negligent violation of a criminal statute may not adversely reflect on an attorney's honesty, trustworthiness, or fitness. Florida Bar v. Brown, 2001 WL 776667 (Fla., July 12, 2001) (attorney's negligent violation of statute prohibiting campaign contributions in excess of $500).

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary Florida References: FL Rule 4-8.4(d)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram § 3.3.2

A lawyer violated FL Rule 4-8.4(d) when he submitted to counsel for an insurance company a fictitious notice of voluntary dismissal. Florida Bar v. Varner, 780 So. 2d 1 (Fla. 2001). The lawyer had settled a claim and asked his secretary to prepare a notice of voluntary dismissal. The secretary then informed him that she had not been able to fill in a file number because no such action had been commenced. At the time he settled the claim, the lawyer believed that an action had been filed. He took the notice of dismissal and filled in a fictitious file number and sent it to counsel for the insurance company. The court found a violation of Rule 4-8.4 because "the fictitious notice invoked the power and prestige of the court in order to further the deception." "One need not be involved in a judicial proceeding to engage in conduct prejudicial to the administration of justice." The lawyer attempted to conceal his initial mistake by "creating a fictitious court document that was cloaked with the aura of authenticity. Such misuse of official documents is conduct prejudicial to the administration of justice." The court imposed a ninety-day suspension. The court was especially troubled by the fact that after an error was made in the representation of a client, the lawyer, instead of admitting the error, "develop[ed] a deception to cover up the error so that it [would] go undetected." The lawyer's "decision to go forward with a deception rather than honestly admitting to his mistake is so contrary to the most basic requirement of candor" that the court could not impose a short-term suspension.

In Florida Bar v. Karahalis, 780 So. 2d 27 (Fla. 2001), a lawyer was disbarred for unlawfully paying a United States Congressman $12,000 to arrange a transfer of the lawyer's uncle from one federal prison to another, even though the lawyer was not charged with a crime. The court cited bribery as a "particularly noxious ethical failure." Id. (quoting Florida Bar v. Riccardi, 264 So. 2d 5, 6 (Fla. 1972)). The court has favored disbarment as the appropriate discipline in cases involving bribery because:

It not only involves a breach of the individual attorney's public trust as a member of the legal profession, but also represents an attempt by the offending lawyer to induce a third party to engage in fraudulent and corrupt practices. Such conduct strikes at the very heart of the attorney's responsibility to the public and profession. We are, therefore, not inclined to leniency in bribery matters, absent mitigating factors in the individual case.

Id. (quoting Florida Bar v. Riccardi, 264 So. 2d 5, 6 (Fla. 1972)). "Our honored profession is soiled by the conduct which has brought Karahalis to this day. If we do not act to cleanse the stain from our profession, we would depart from our oath and give the citizens of this state cause for concern." Id.

Filing a notice of appeal for the sole purpose of delaying a foreclosure is a violation of Rule 4-8.4(d). Florida Bar v. Barcus, 697 So. 2d 71 (Fla. 1997).

8.4:600   Implying Ability to Influence Public Officials

Primary Florida References: FL Rule 4-8.4(e)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA § 101:701, ALI-LGL § 113

Implying the ability to bribe a judge is taken particularly seriously. As the court stated in Florida Bar v. Swickle, 589 So. 2d 901 (Fla. 1991): "In particular, suggesting that one has the ability to bribe a judge strikes at the core of our legal system. Our system is designed to insure that equal justice prevails for all, whether rich or poor, powerful or powerless. When people are led to believe that justice is dispensed on the basis of corrupt influences, the public cannot have confidence in the integrity or impartiality of the judiciary or the bar. The entire judicial process is undermined as a result." Id. at 905 (citations omitted).

8.4:700   Assisting Judge or Official in Violation of Duty

Primary Florida References: FL Rule 4-8.4(f)
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ALI-LGL § 113

[The discussion of this topic has not yet been written.]

8.4:800   Discrimination in the Practice of Law

Primary Florida References: FL Rule 4-8.4(d)
Background References: Other Jurisdictions
Commentary: ABA/BNA § 91:301

[The discussion of this topic has not yet been written.]

8.4:900   Threatening Prosecution

Primary Florida References:
Background References: Other Jurisdictions
Commentary: ABA/BNA § 1:801, 61:601

[The discussion of this topic has not yet been written.]

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:

8.5:101      Model Rule Comparison

FL Rule 4-8.5 simply states that a lawyer admitted to practice in Florida is subject to Florida's disciplinary jurisdiction although engaged in practice elsewhere. The Florida rule does not contain the choice of law provision added to MR 8.5(b) in 1993.

8.5:102      Model Code Comparison

The Model Code contains no counterpart to FL Rule 4-8.5.

8.5:200   Disciplinary Authority

Primary Florida References: FL Rule 4-8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2001, ALI-LGL § 2, Wolfram § 3.2

There are no Florida cases or ethics opinions dealing with this provision.

8.5:300   Choice of Law

Primary Florida References: FL Rule 4-8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram § 2.6.1

[The discussion of this topic has not yet been written.]