Florida Bar Disciplinary Process

The purpose of this page is to briefly explain how the Florida Bar investigates, closes, and prosecutes accusations of unethical conduct.

Initial Complaint Screening by ACAP

The Florida Bar's Attorney Consumer Assistance Program (ACAP) initially screens all complaints. Anyone can file a complaint against an attorney in Florida – there is no "standing" requirement. Unhappy clients generate most complaints, but Bar investigations can begin in a variety of ways: opposing counsel, opposing parties, judges, and banks who report trust account overdrafts.

Responding to a Bar's Inquiry Letter

The Bar sometimes receives a complaint and closes it without ever contacting the attorney. Thus, if you get a copy of somebody's complaint letter to the Bar, don't reply unless the Bar itself asks for a response.

The Bar’s inquiry letter requires your written response within fifteen days of receipt to avoid additional investigation for failure to respond. A significant number of pro se attorneys provide so much information in the response that they inadvertently pinpoint additional areas of concern that the Bar’s staff counsel didn't originally consider. There is a certain amount of finesse required in these situations, as well as the ability to see the problem in perspective.

Employing counsel experienced in bar defense matters at this stage can help. It is necessary to carefully provide relevant information and supporting documentation in a concise response. This sometimes requires legal research, as there are sometimes ethics opinions or case law that help define the line between merely negligent conduct and that which is actionable.

Referral to a Grievance Committee

One of the most frustrating aspects of a Bar investigation can be waiting for the results. After Bar investigators gather statements and documents, Bar staff attorneys review the evidence and determine whether the matter should be closed at staff level or referred to a grievance committee for further investigation. If a matter is referred, it is assigned to an investigating member of the committee who contacts the parties to discuss the issues. Even upon referral to a grievance committee, most investigations eventually close with no adverse action, but in a certain percentage of cases, a violation of the Rules Regulating the Florida Bar is clear, and probable cause is found by the committee for further discipline. Those cases are then referred to the Supreme Court for litigation.

Litigating an Ethics Complaint

Following a probable cause vote, Bar counsel files a complaint with the Supreme Court alleging a factual basis which supports that certain rules have been violated, requiring the filing of an answer and any affirmative defenses. Both sides have the right to discovery.

Except in the most egregious cases, the Bar is usually willing to engage in settlement discussions both before and after the filing of a complaint. The advantages to a stipulated resolution are generally the same as the advantages to settling any kind of civil suit or entering into a criminal plea bargain: you get a certain result, there is a limit to your cost and exposure, and you avoid months of potentially expensive and potentially stressful litigation. The Supreme Court, however, must approve the stipulation before it can take effect as a formal resolution of the case.

Sometimes it is necessary to litigate. Bar trials are quasi-judicial administrative proceedings, usually held in chambers. Judges are appointed by the Supreme Court and are called "referees". They sit without a jury, the rules of evidence are relaxed, and the Bar prosecutor must prove the case by clear and convincing evidence. Proceedings are bifurcated, which means they are divided into a fact-finding phase, then, if applicable, a sentencing phase. Sometimes it is in your best interest to admit culpability and stipulate to some of the indefensible facts to concentrate on negotiating a fair disciplinary outcome. In that event, the proceedings involve only argument regarding the appropriate level of discipline, and the bar defense attorney presents a full scale mitigation case, including character witnesses, evidence of pro bono and community work, evidence of restitution, rehabilitation, and remorse. See Sanction Standards under www.flabar.org.

Whether you are found culpable of one or more disciplinary offenses, the referee will issue recommendations to the Supreme Court in a detailed report of referee, either recommending the imposition of no sanctions or imposing sanctions the referee believes to be appropriate based on the evidence. Unless one side or the other appeals the report of referee, there is usually no further briefing or argument. The Supreme Court reviews the record, then issues its opinion. The Supreme Court order normally takes effect thirty days after it is filed. Depending on the level of discipline, you may have to report the outcome to clients, opposing counsel and the courts before which you routinely appear.

From the day you were first asked to explain yourself to the effective date of the Supreme Court order, usually approximately 18 to 30 months have transpired. You may now be faced with reciprocal discipline from other jurisdictions where you are admitted, or face certification revocation if you are Board Certified in Florida.

Drugs, Alcohol, and Mental Health Problems

Florida Lawyers Assistance, Inc. is a non-profit corporation formed in 1986 in response to the Florida Supreme Court's mandate that a program be created to identify and offer assistance to bar members who suffer from substance abuse, mental health, or other disorders which negatively affect their lives and careers. You can contact the program directly at (800) 282-8981, or at www.FLA-LAP.or. Participation is completely voluntary and confidential.

Conclusion

A Bar investigation is a process that requires patience on the part of the responding attorney. It helps the bar defense attorney to obtain information in an organized, clear fashion. Take an active part in your defense and respond quickly. If you don't understand something, it is critical that you ask for clarification.

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