In Re: Amendment to Rules Regulating the Florida Bar – Rule 3-7.18

• Court: Supreme Court of Florida
• Decided: October 21, 2021
• Docket: SC21-653
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC21-653 ____________

IN RE: AMENDMENT TO RULES REGULATING THE FLORIDA BAR–RULE 3-7.18.

October 21, 2021

PER CURIAM.

Before the Court is the petition of The Florida Bar (Bar)

proposing amendments to the Rules Regulating the Florida Bar (Bar

Rules). We have jurisdiction. See art. V, § 15, Fla. Const.

The Bar proposes the addition of new rule 3-7.18 (Disposition

of Inquiries or Complaints Referred to the Bar by Members of the

Judiciary). The new rule establishes a process by which the Board

of Governors of The Florida Bar and the Court will review and

approve the disposition of referrals regarding lawyer misconduct

from members of the judiciary that do not result in a finding of

probable cause or the filing of a formal complaint if a finding of

probable cause is not required. The new rule is the product of the Special Committee on

Examination of Judicial Referral Process, which was tasked with

determining the most effective and efficient process to address

judicial referrals of lawyer misconduct. Both the Special Committee

and the Board of Governors approved the new rule, and consistent

with Bar Rule 1-12.1(g), the Bar published formal notice of its

proposal in The Florida Bar News. The notice directed interested

persons to file their comments directly with the Court. No

comments were received.

Having considered the Bar’s petition, we adopt new rule 3-7.18

with the following modifications. We decline to adopt subdivisions

(d)(2)(A) (Time Period for Review) and (d)(2)(B)(v), and renumber or

reletter the other provisions within subdivision (d) accordingly. The

two subdivisions, respectively, would have required the Court to act

on the Board of Governors’ recommendation and summary report

within thirty days of its submission, and would have authorized the

Court to successively extend the thirty-day period for an additional

thirty days as needed. The Bar does not identify a specific need for

these restraints.

-2- Accordingly, the Rules Regulating the Florida Bar are amended

as set forth in the appendix to this opinion. New language is

indicated by underscoring. The amendments shall become effective

December 20, 2021, at 12:01 a.m.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS AMENDMENT.

Original Proceeding – Florida Rules Regulating the Florida Bar

Joshua E. Doyle, Executive Director, Michael G. Tanner, President, Gary S. Lesser, President-elect, Paige A. Greenlee and Michael Fox Orr, Co-Chairs, Special Committee on the Examination of the Process and Procedures for Judicial Referrals of Discipline Matters to The Florida Bar, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida,

for Petitioner

-3- Appendix

RULE 3-7.18 DISPOSITION OF INQUIRIES OR COMPLAINTS REFERRED TO THE BAR BY MEMBERS OF THE JUDICIARY

(a) Definitions. Wherever used in this rule, the following words or terms have the following meaning:

(1) Disposition. A disposition of an inquiry or complaint is the termination of an inquiry or complaint before a finding of probable cause or the filing of a formal complaint where a probable cause finding is not required. A disposition includes a:

(A) decision not to pursue an inquiry;

(B) dismissal of a disciplinary case;

(C) finding of no probable cause;

(D) finding of no probable cause with issuance of a letter of advice;

(E) recommendation of diversion; and

(F) recommendation of admonishment for minor misconduct.

(2) Judicial Referral. A judicial referral is an inquiry, communication, or complaint questioning the conduct of a member of the bar submitted to the bar by a member of the judiciary. A judicial referral also includes a court order, judgment, or opinion specifically referring to the bar a matter questioning the conduct of a member of the bar.

(b) Suspension of Deadlines for Final Disposition of Judicial Referrals. All deadlines for final disposition elsewhere in these rules are suspended under this rule. No disposition of a judicial referral will become final until the review required by this rule is complete.

(c) Review by Board of Governors. The disciplinary review committee will review all dispositions of judicial referrals first and

-4- will recommend a disposition to the board. The board may accept or reject the recommended disposition. If the board rejects the recommended disposition, the board may:

(1) refer the matter to a grievance committee for additional investigation or review;

(2) find probable cause, and the case will proceed accordingly; or

(3) recommend a different disposition to the Supreme Court of Florida.

The executive committee may act on behalf of the board or disciplinary review committee in connection with its review of dispositions of judicial referrals as specified with other disciplinary matters under these rules.

(d) Supreme Court of Florida Review. The Supreme Court of Florida may review the board’s recommendation for approval of dispositions of judicial referrals.

(1) Submission of Summary Report and Documents. The bar will submit the board’s recommendations for approval of judicial referrals to the clerk of the Supreme Court of Florida as soon as practicable after the board’s decision but not later than 30 days. The submission will include a summary report of the inquiry or complaint; the nature of the alleged rule violations; the board’s recommended disposition; the judicial referral; any response by the respondent; applicable orders, decisions, opinions, or communications by the judge or court; and all other non- confidential documents considered by the board.

(2) Supreme Court of Florida Actions. The Supreme Court of Florida may take the following actions:

(A) approve the board’s recommended disposition;

(B) reject the board’s recommendation, which will be deemed a finding of probable cause and direction to the bar to file a formal complaint;

-5- (C) refer the matter back to the board for further review, with or without a recommendation or guidance; or

(D) request that the bar provide additional information.

-6-