Florida Bar
332 So. 2d 1 | Fla. | 1976
Lead Opinion
We have before us for consideration a petition of The Florida Bar to amend the Integration Rule, article XI. After due notice, the Court has heard argument in the matter. Having heard such argument and having reviewed the record and briefs, we approve the following proposed amendments, as revised by the Court:
Rule 11.02
(4) Trust funds and fees.
(c) TRUST ACCOUNTING PROCEDURES: The Florida Bar shall promulgate by-laws under this rule, such by-laws and amendments thereto to be approved by this Court, prescribing minimum trust accounting records which shall be maintained and minimum trust accounting procedures which must be followed by all attorneys practicing in Florida who receive or disburse trust money or property. The minimum procedure shall require reconciliation of trust account balances at periodic intervals and the annual filing of a certificate reflecting compliance with minimum record keeping and procedural requirements. Failure to file the required certificate or the return of a trust account check for insufficient funds shall be good cause for The Florida Bar to order an audit of the trust account at the cost of the attorney audited. Other audits for cause conducted by The Florida Bar shall be at the cost of the attorney audited unless the audit reveals that the attorney was without fault and that his trust account records and procedures are in substantial compliance with the minimum requirements.
Rule 11.03 (2)
(h) QUORUM, VOTE. Not less than three members shall constitute a quorum. All findings of probable cause and of guilt of minor misconduct shall be made by affirmative vote of a majority of the committee present, which majority must number at least two members. The number of committee members voting for or against the committee report shall be reflected in the report. Minority reports may be filed.
*2 Rule 11.03
(8) STAFF COUNSEL AND GRIEVANCE COMMITTEE CHAIRMAN DETERMINATIONS OF NO PROBABLE CAUSE. If staff counsel and a grievance committee chairman concur in a finding of No Probable Cause the complaint may be closed on such finding without reference to a grievance committee.
Rule 11.06
(3) NATURE OF PROCEEDINGS
(a) ADMINISTRATIVE IN CHARACTER. A disciplinary proceeding is neither civil nor criminal but is a quasi-judicial administrative proceeding. The Rules of Civil Procedure apply except as otherwise provided in the Integration Rule.
Rule 11.06
(9) REFEREE’S REPORT
(a) CONTENTS OF REPORT. Within 30 days after the conclusion of a trial before a referee or 10 days after the referee receives the transcripts of all hearings, whichever is later, or within such extended period of time as may be allowed by the President of The Florida Bar for good cause shown, the referee shall make a report and enter it as part of the record, but failure to enter the report in the time prescribed shall not deprive the referee of jurisdiction. The referee’s report shall include (1) a finding of fact as to each item of misconduct of which the respondent is charged, which findings of fact shall enjoy the same presumption of correctness as the judgment of the trier of fact in a civil proceeding, (2) recommendations as to whether or not the respondent should be found guilty of misconduct justifying disciplinary measures, (3) recommendations as to the disciplinary measures to be applied. (4) a statement of any past disciplinary measures as to the respondent which are on record with the executive director of The Florida Bar or which otherwise become known to the referee through evidence properly admitted by the referee during the course of the proceedings. After a finding of guilt all evidence of prior disciplinary measures may be offered by bar counsel subject to appropriate objection or explanation by respondent, and (5) a statement of costs of the proceedings and recommendations as to the manner in which costs should be taxed. The costs shall include court reporters’ fees, copy costs, witness fees and traveling expenses and reasonable traveling and out-of-pocket expenses of the referee and bar counsel, if any. Costs shall also include a $50 charge for administrative costs at the grievance committee level and a $50 charge for administrative costs at the referee level.
Rule 11.06
(11) PLEA OF GUILTY BY ACCUSED OR RESPONDENT
(c) UNCONDITIONAL. An unconditional plea of guilty shall not preclude review as to disciplinary measures imposed.
Rule 11.10 (7) EMPLOYMENT OF CERTAIN DISCIPLINED ATTORNEYS
When attorneys have been placed on the inactive list, suspended, disbarred or allowed resignation pursuant to Rule 11.08 by order of this Court, they are ineligible to practice law until reinstated or readmitted. However, this shall not preclude a lawyer, law firm or professional association from employing the suspended, disbarred or resigned individual to perform such services only as may ethically be performed by other lay persons employed in attorneys offices under the following conditions:
(1) Notice of employment along with a full job description will be provided to staff counsel before employment commences.
*3 (2) Information reports verified by the employee and employer will be submitted to staff counsel quarterly; such reports shall contain a statement by the employing lawyer certifying that no aspect of the employee’s work for the period involved the unauthorized practice of law.
(3) No suspended or disbarred attorney shall have direct contact with any client or receive, disburse or otherwise handle funds or property of a client.
It is so ordered.
Concurrence in Part
(concurring in part and dissenting in part).
In addition to the amendments to the Integration Rule approved by the Court herein, The Florida Bar submitted additional proposed amendments which have been rejected by the majority of the Court. From the majority’s rejection of the following amendments I respectfully dissent:
Rule 11.04
“(6) RECORD AND REPORT OF GRIEVANCE COMMITTEE.
“(a) NO FINDING OF PROBABLE CAUSE. If a grievance committee upon termination of its investigation does not find probable cause, the committee shall dispose of its file in the manner directed by the Board of Governors. If the grievance committee has notified the accused of the investigation, then the committee shall notify the accused of the action of the committee. The failure of a grievance committee to find probable cause shall not preclude further proceedings. Grievance committees may find No Probable Cause as to a complaint and thereafter in the fraternal tradition of the profession admonish the accused attorney to improve any practice or procedure which appears to have contributed to the filing of the complaint. Such admonishments do not constitute a disciplinary record for any purpose and costs shall not be assessed against the accused following a No Probable Cause Admonishment.
(Proposed amendment represented by underlined language.)
A number of grievance committees have employed this practice in the past with beneficial results, particularly in the case of young and inexperienced attorneys. Since such admonitions do not constitute a disciplinary record for any purpose I would grant the flexibility of such practice to grievance committees.
“Rule 11.10
“(3) SUSPENSION. The respondent may be suspended from the practice of law for a» appropriate rime er fer a definite period of time and or for an indefinite period thereafter to be determined by the conditions imposed by the judgment. Definite and indefinite periods of suspension may be included in the same judgment. During such suspension the respondent shall continue to be a member of The Florida Bar but without the privilege of practicing; and upon the expiration of the suspension period and the satisfaction of all conditions accompanying the suspension, the respondent shall become eligible to all of the privileges of membership in The Florida Bar. A suspension ef three months er less shah net require preef ef rehabilitation er satis faetefy passage ef the fherida bar examination-; a suspension ef mere than three menths shah require proof ef rehabhita-tien; No suspension shall be ordered for a specific period of time in excess of*4 three years; one year. Indefinite suspensions which continue for over three year-9 one year shall require proof of rehabilitation and may require satisfactory passage of the Florida bar examination subsequent to the date of suspension. Suspensions for professional incompetence shall require satisfactory passage of the bar examination after the date of suspension. The provisions of this paragraph apply only to suspension imposed after the effective date of this change.
“(4) DISBARMENT. A judgment of disbarment terminates the respondent’s status as a member of the Bar. A former member who has been disbarred may only be admitted again upon full compliance with the rules and regulations governing admissions to the Bar. Except as might be otherwise provided in these rules, no application for admission may be tendered within three years one year after the date of disbarment or such additional period of time as may be prescribed in the disbarment order except that persons disbarred prior to the effective date of this paragraph may not apply for admission until at least three years after the date of disbarment.
(Words in struck through type represent deletions from the existing rule; words underlined represent additions.)
The Florida Bar has concluded, and I believe correctly, that the practical effect of a suspension under the current rules can be far more onerous than disbarment. Consequently the concept of disbarment from the practice of law has lost much of its significance, both practically and in the eyes of the public whose interests are to be protected by the disciplinary program of this Court and The Florida Bar. The proposed rule amendment is intended to shift the emphasis between the two forms of discipline so as to return to the historical and accepted connotations of the respective terms. I would approve this proposal.
