How The Florida Bar Prosecutes Florida Attorneys:
“The Florida Bar’s discipline system itself is entirely broken. The staff is overwhelmed, and there is not uniformity in the system whatsoever. . . .”
-- Quote from: Warren Trazenfeld (April 2012) as reported in the South Florida Business Journal.
Whether or not you feel The Florida Bar's discipline system is perfect, you must know how to navigate it successfully if you wish to save your license and your reputation. The Florida Bar's own website contains an overview of The Florida Bar discipline system and offers The Bar's suggestion of the 10 most important things to know about lawyer regulation by The Florida Bar. We hope this article provides you with further insight, and with helpful checklists of what to do or say at various stages of the process. Of course, we would be flattered to assist you further if you choose to contact us for a confidential consultation.
Responding In Writing to an Initial Ethics Inquiry from The Florida Bar:
The Florida Bar's procedure for investigating and prosecuting discipline complaints may begin and end without you ever knowing it. That's because when a "complaint is submitted to the Bar, but before charges are filed, intake counsel conducts a preliminary investigation. If intake counsel determines that the allegations do not warrant discipline, then the case is closed immediately without further action against the attorney." The important lesson from this is that if a Bar Complaint is sent to you by The Florida Bar, then someone at The Bar has determined that your case may warrant discipline.
Once you receive that initial inquiry from The Florida Bar, you must respond within 15 days. Miss that deadline, and you may have violated The Rule Regulating The Florida Bar that makes it unethical to fail to provide a proper response. A plethora of case law precedent shows the Supreme Court of Florida will not hesitate to punish you for failing to respond properly.
Many Bar grievance defense lawyers will tell you never to answer the Bar Complaint yourself, but instead to hire a Bar grievance defense attorney to do so for you. I disagree. There are times when it is the wrong approach to have your Bar grievance defense attorney's name or fingerprints upon your answer to the initial inquiry. Consider the following.
When you "lawyer up" immediately, you can send the wrong signal. Your grievance file is young. The facts are largely unknown. The Florida Bar is making decisions based upon imperfect knowledge and perceptions. So perception can be critical. One who quickly "lawyers up" could create a perception of needing a defense or having something to hide. Keep in mind that The Florida Bar person and office that determined you are required to respond to the inquiry may not be the same Bar person or office that will receive and analyze your response to the inquiry. Often, the A.C.A.P. office in The Florida Bar's Tallahassee Headquarters determines the inquiry requires your response, but delegates the receipt and analysis of that response to one of The Florida Bar's 5 separate branch offices: the Florida Bar's Miami Branch Office supervised by Chief Branch Discipline Counsel Arlene K. Sankel; the Florida Bar's Ft. Lauderdale Branch Office supervised by Chief Branch Discipline Counsel Alan Pascal; the Florida Bar's Orlando Branch Office supervised by Chief Branch Discipline Counsel Jan K. Wichrowski; the Florida Bar's Tampa Branch Office supervised by Chief Branch Discipline Counsel Sheila Marie Tuma; or the Florida Bar's Tallahassee Branch Office supervised by Chief Branch Discipline Counsel Allison Carden Sackett. The particular Chief Branch Discipline Counsel, in turn, may delegate the receipt and analysis of your response to one of its Assistant Staff or Bar Counsels. Perhaps A.C.A.P. or a Florida Bar headquarters intake counsel was convinced your alleged behavior warrants discipline. But local Bar Counsel is empowered to disagree.
If you "lawyer up" too soon, you might send the false message that you have something to hide. So yes, get the help of a Bar grievance defense attorney in drafting your response to The Florida Bar's initial inquiry. But consider with your defense counsel the possibility of signing the response yourself and on your own letterhead. Why appear to be hiding behind a defense attorney? Consider sending the message that you have nothing to hide -- and that the allegations against you do not even warrant the time and trouble of hiring yourself a defense attorney. In a proper case, such a message can go a long way.
In the wrong case, the last thing you want is your signature alone and your letterhead upon the response to The Florida Bar's initial inquiry. The Florida Evidence Code is persuasive but not binding upon the Florida Bar Grievance Referee who hold the bench trial and who will decide your case if your case is not dismissed. And of course, the Evidence Code says that your letter on your letterhead bearing your signature may be admissible as evidence against you.
So get the advice of a Bar grievance defense attorney when meeting your responsibility to answer a Bar Ethics Inquiry within 15 days. And as part of that advice, explore whether it is best in your case to have Bar counsel give the response or to respond all by yourself.
Here is a helpful checklist for what to say in your written response to the initial inquiry. Consider stating . . .
-- whether you disagree with the facts as alleged;
-- whether you believe there was any violation of The Rules Regulating The Florida Bar;
-- whether you included anything in this response that could be misinterpreted as harmful to you or your position;
-- whether there are any extra paragraphs, sentences or words that can be omitted without hurting your case ("less is more");
-- that you "pledge your full cooperation with The Florida Bar's investigation"; and
-- (in the proper case) that you are requesting a face-to-face meeting with your assigned Bar prosecutor.
Let's explore in detail that last line on the checklist.
Meeting In Person with The Florida Bar's Branch Discipline Counsel:
After you have met your obligation to respond to The Florida Bar's initial inquiry in writing, The Rules Regulating The Florida Bar do not forbid you from requesting to meet face-to-face with the local Florida Bar Prosecutor assigned to your case. Likewise, those same rules do not forbid Bar Counsel prosecutors from granting your request. You might even consider making that request as part of your written response. In the proper case, it sends the signal that you have nothing to hide, and that you wish to be fully cooperative with The Florida Bar's ethics investigation. Perception can be important.
But if you request such a meeting, and your request is granted, proceed with caution. All Florida Bar Branch Offices have Staff Investigators, who may have job experience from former careers such as private investigators, military, law enforcement, or government investigations. These Staff Investigators are often used by The Florida Bar as witnesses against you before the Grievance Referees who hold the bench trials that decide your guilt or your innocence, and your punishment or lack of punishment. In my experience, a Staff Investigator will accompany the Bar Counsel prosecutor to the meeting.
So if you attend such a meeting, consider bringing your own eyewitness who can also testify to what was said and done. Again, perception can be important. Bringing your choice of Florida licensed Private Investigator sends one message. Bringing your spouse sends another. Prepare for this meeting with your Bar grievance defense attorney. As part of that preparation, discuss who should attend with you.
At the meeting, try to listen more often than you speak. Pay attention both to what you hear and what you can see. Behavior can be quite telling. At one such meeting I attended, Bar Counsel interrupted a discussion with a wholly unrelated question, and while asking her question she looked across the table at the Staff Investigator, who in turn started taking notes. Do you think the answer to this question was critical to Bar Counsel's case? Observing such behavior may help you understand just what facts are important about your case in your Bar Counsel prosecutor's mind.
Here is a helpful checklist for preparing for such a meeting. Consider . . .
-- Reviewing the complainant's statement and your response to it;
-- Locating and copying any fully favorable documents that support your position or contradict the complainant's;
-- Anticipating what questions you expect and considering what answers you will give; and
-- Learning what you can about the Bar Counsel assigned to prosecute your case.
Doing the last suggestion on this checklist can prove difficult, even in this electronic age of ours. We can offer you the following guidance in your research.
Getting Insight About Those Involved With Conducting Your Florida Bar Ethics Investigation:
Obviously, the name of the local prosecuting Bar Branch Office assigned to your case appears in the initial inquiry paperwork sent to you by The Florida Bar's Tallahassee headquarters. But did you know that the Grievance Committee that supervises your prosecuting Bar Counsel can also be determined from that paperwork? Check the materials sent to you by The Florida Bar, and look at your "File Number" assigned to you. The ending letters and digits tell you which Grievance Committee is yours. For example, if your File Number ends in (9F), then your Grievance Committee is from Florida's Ninth Judicial Circuit, and is Committee F for that circuit. A somewhat up-to-date listing of each committee and its members can be found here.
If the initial inquiry paperwork does not specify the name of the individual serving as your prosecuting Bar Counsel, you might learn his or her name by contacting the Branch Office, or in the case of a Grievance Committee who supervises only a single Bar Counsel, by noting her name on the website listed using the somewhat cryptic description of the Committee's "staff contact." A list of most if not all prosecuting Bar Counsel employed by The Florida Bar can be found here. Because Bar Counsel must be a Florida-licensed attorney, their most basic biographical information can be found just like all the rest of the members of The Florida Bar by searching the "find a lawyer" section of The Florida Bar's own website.
You might wonder how experienced your Bar Counsel prosecutor may be. Here is one way to make an educated guess. Any time a Florida attorney is convicted by an Ethics Referee, that referee's report must be approved or rejected by the Supreme Court of Florida. So, you might research how much of that type of experience your particular Bar Counsel prosecutor holds by searching for his or her name on the Florida Supreme Court's online case docket. Find 1 or 2 cases listed, and you may be facing a newbee. Find 100 or 200 cases listed, and you may be facing a veteran.
You might also ask your Bar grievance defense attorney about his or her experience with or knowledge of the particular Bar Counsel assigned to prosecute your case. Some Bar grievance defense attorneys extol their past experience as Bar prosecutors. Having a defense attorney who is a friend of or a former co-worker of your opposing counsel may or may not be a good thing in your current situation. Choose wisely.
So in summary, it may be hard to gather reliable information about many of those individuals involved in your Florida Bar grievance, but a helpful checklist of some things that may help enlighten you includes . . . .
-- Some internet research about the identity of the Grievance Committee and its members,
-- Some online case docket research about past cases taken to the Florida Supreme Court by your particular Bar Counsel prosecutor,
-- Some "asking around" about the relevant lawyers, and
-- Perhaps assembling yourself a useful dossier of the information you are able to locate.
Speaking of assembling information, consider getting your own house in order when it comes to the relevant documents in your possession. This is not only because you need evidence to help win your case, but also because of The Florida Bar's habit of requesting further documentation from the accused attorney after receiving the attorney's response to the initial ethics inquiry. Which brings us to our next detailed topic.
Responding to Document Requests and Trust Account Audit Requests from The Florida Bar:
At any time after a Florida lawyer ethics inquiry begins, The Florida Bar might request you to provide them with documents or might inform you that they put one or more of your Florida Lawyer Trust Accounts under audit. In my experience, there is the possibility that such requests for documents or audits could possibly exceed The Florida Bar's authority at the time the request is made.
Consider the audit of Lawyer Trust Accounts. Especially with an IOTA Trust Account or IOLTA Trust Account, you might presume The Florida Bar holds the right to audit it at any time. But The Rules Regulating The Florida Bar only explicitly empower The Bar to audit an attorney's trust account when one of 9 specifically enumerated conditions exist. Those 9 conditions, found in Florida Bar Rule 5-1.2(g), are rare conditions indeed, such as your insanity, your disbarment, your bankruptcy, you being charged with a felony by a criminal law prosecutor, and 4 other unusual circumstances. If The Florida Bar tells you your trust account is "under audit," consult the Rule 5-1.2(g) list to confirm The Bar has such explicit authority at this time. If it appears they do not, you may wish to contact a Bar grievance defense attorney for advice. See also The Florida Bar v. Rosen, 608 So.2d 794 (Fla. 1992) (case law precedent discussing, inter alia, when The Florida Bar has the right to audit a trust account).
Of course, you want to fully cooperate with The Florida Bar's investigation, and you want to honor any document request The Bar is empowered to make. The Florida Bar's requesting document might quote a foreboding-sounding rule about contempt powers of the Supreme Court of Florida, and of course, our Supreme Court certainly has such powers. You may note that, technically speaking, The Florida Bar's prosecutors are acting on behalf of the Supreme Court of Florida. But in practice, Florida Bar prosecutors ANSWER TO the Supreme Court of Florida. This is a critical difference.
So a checklist of things to consider when receiving a Florida Bar Trust Account Audit Request, a Florida Bar Subpoena Duces Tecum, or a Request for Production from The Florida Bar might include:
-- Confirming The Florida Bar has authority to request what it seeks;
-- Scheduling some time to assemble the documents, and scheduling the deadline for production; and
-- Getting a "second set of eyes" on those documents before producing them to The Florida Bar to make sure they are in perfect order.
Speed or Pace of Progression of The Florida Bar's Grievance Process and Ethics Investigation:
"No lawyer, and no client, can be indifferent to the disciplinary enforcement system. If the process is performed sensibly and quickly it will provide for lawyers and clients alike a needed service to assure honorable and effective delivery of legal services. If the disciplinary process does not meet that standard, a disaffected public is likely to impose limits upon the process . . . . Continuity of judicial regulation of the legal profession depends on action taken by the profession itself. "
-- The American Bar Association, quoting attorney Robert B. McKay, in 1990
I am unaware of any official acknowledgement by The Florida Bar that the speed or pace of progression of ethics inquiries is too slow. But I have heard so many accused lawyers say so. Personally, I agree with them. You might, too.
The Florida Bar tells the public that the Statute of Limitations is 6 years for "inquiries raised or complaints presented by or to The Florida Bar." As any lawyer knows, the determination of whether a Statute of Limitations has expired can be a complex decision requiring many factors such as when the time commenced and whether the time was tolled.
So assuming it is true that The Florida Bar's grievance process takes too long to complete, perhaps the best answer as to why it moves so slowly may be that the extraordinarily long Statute of Limitations almost certainly puts very little pressure upon The Florida Bar to move things along. In light of this possibility, you might consider:
-- Urging those involved to keep things moving;
-- Answering any requests for information well in advance of the deadline and otherwise keeping things moving yourself; and
-- Choosing a Bar grievance defense attorney committed to getting things done without requesting extensions of time.
Assignment of Your Ethics Inquiry to a Local Grievance Committee:
"Local bar investigative committees . . . foster cronyism as well as prejudice against unpopular respondents. . . . result in a lack of uniformity in procedures and in the application of the rules of professional conduct. . . [and] promote delay in the handling of disciplinary cases."
-- Quote from: the American Bar Association (1992 Report)
With the possible exception for alleged advertising violations, Florida uses a type of local investigative committee to determine which accused lawyers will face discipline charges. Is that wise? As long ago as June 1970, a special committee of the American Bar Association issued their "Clark Report" recommending all states remove local components from their lawyer disciplinary systems. According to the American Bar Association's 1992 Report of the Commission on Evaluation of [Lawyer] Disciplinary Enforcement (the "McKay Report"), "despite the fact that eliminating local disciplinary enforcement was a major recommendation of the Clark Report, at least twelve jurisdictions still have significant local components in their disciplinary systems. Local components, such as local bar investigative committees, foster cronyism as well as prejudice against unpopular respondents. Local components result in a lack of uniformity in procedures and in the application of the rules of professional conduct. Local components promote delay in the handling of disciplinary cases." Stated somewhat differently, the American Bar Association has warned for decades that it should not be a local bar investigative committee that will apply the rules of professional conduct to decided whether an ethics inquiry becomes a Bar Complaint.
Yet under the Rules Regulating The Florida Bar, it will be one of Florida's local investigative committees, called a "Grievance Committee," that will apply the rules of professional conduct to decide whether your ethics inquiry becomes a Bar Complaint. Will the American Bar Association's prediction of cronyism, lack of uniformity, and delay occur in your case once it is referred to a local Grievance Committee? Time will tell.
So if your case is referred to a local Grievance Committee, now is the time to get to know a little bit about its members. Approximately one-half to two-thirds of the Grievance Committee members are fellow attorneys from near your geographic area, and the rest are non-lawyers from the same area.
You might consider reaching out to The Florida Bar Grievance Committee Chairperson, if for no other reason than to show your cooperation with their investigation. Some Grievance Committee Chairmen or Chairwomen will take your phone call or respond to your letters. But in my experience, some will not.
If the Florida Bar Grievance Committee reaches out to you, it will be through their member who is chosen as the Investigating Member for your grievance file. Do not confuse the Investigating Member with the Designated Reviewer. Although the names sound similar, the tasks performed are different. The Investigating Member is a committee member appointed by your particular Committee Chairperson to investigate your particular matter. The Designated Reviewer is a member of The Florida Bar Board of Governors appointed with certain oversight powers regarding your Grievance Committee and your Florida Bar Counsel prosecutor.
If the Florida Bar Grievance Committee follows what I believe are the correct interpretation of the relevant procedures, it will be the Investigating Member who recommends your indictment or your vindication to the other Grievance Committee members but who does not cast a vote toward indictment or vindication. Technically speaking, indictment is called "a finding of probable cause" and vindication is "a finding of no probable cause." Indictment seems an appropos abbreviation, considering that a finding of probable cause requires your Florida Bar Counsel prosecutor to file a formal Complaint against you with the Supreme Court of Florida except in the rare circumstance where a wise Designated Reviewer instructs otherwise. Vindication may not be so appropos, considering nearly every Grievance Committee's habit of telling you about your finding of "no probable cause" within a terribly drafted form letter warning you about never doing anything like it again and how you would be wise to review the Oath of Attorney. I do not know who first wrote this foreboding form letter, but he or she would be wise to review what is meant by the concepts of chivalry and impartiality. Looking past the unkindness of the form letter, a finding of "no probable cause" is akin to a dismissal and does not count as discipline. A finding of "no probable cause" must be your goal.
“The Florida Bar’s discipline system itself is entirely broken. The staff is overwhelmed, and there is not uniformity in the system whatsoever. . . .”
-- Quote from: Warren Trazenfeld (April 2012) as reported in the South Florida Business Journal.
Whether or not you feel The Florida Bar's discipline system is perfect, you must know how to navigate it successfully if you wish to save your license and your reputation. The Florida Bar's own website contains an overview of The Florida Bar discipline system and offers The Bar's suggestion of the 10 most important things to know about lawyer regulation by The Florida Bar. We hope this article provides you with further insight, and with helpful checklists of what to do or say at various stages of the process. Of course, we would be flattered to assist you further if you choose to contact us for a confidential consultation.
Responding In Writing to an Initial Ethics Inquiry from The Florida Bar:
The Florida Bar's procedure for investigating and prosecuting discipline complaints may begin and end without you ever knowing it. That's because when a "complaint is submitted to the Bar, but before charges are filed, intake counsel conducts a preliminary investigation. If intake counsel determines that the allegations do not warrant discipline, then the case is closed immediately without further action against the attorney." The important lesson from this is that if a Bar Complaint is sent to you by The Florida Bar, then someone at The Bar has determined that your case may warrant discipline.
Once you receive that initial inquiry from The Florida Bar, you must respond within 15 days. Miss that deadline, and you may have violated The Rule Regulating The Florida Bar that makes it unethical to fail to provide a proper response. A plethora of case law precedent shows the Supreme Court of Florida will not hesitate to punish you for failing to respond properly.
Many Bar grievance defense lawyers will tell you never to answer the Bar Complaint yourself, but instead to hire a Bar grievance defense attorney to do so for you. I disagree. There are times when it is the wrong approach to have your Bar grievance defense attorney's name or fingerprints upon your answer to the initial inquiry. Consider the following.
When you "lawyer up" immediately, you can send the wrong signal. Your grievance file is young. The facts are largely unknown. The Florida Bar is making decisions based upon imperfect knowledge and perceptions. So perception can be critical. One who quickly "lawyers up" could create a perception of needing a defense or having something to hide. Keep in mind that The Florida Bar person and office that determined you are required to respond to the inquiry may not be the same Bar person or office that will receive and analyze your response to the inquiry. Often, the A.C.A.P. office in The Florida Bar's Tallahassee Headquarters determines the inquiry requires your response, but delegates the receipt and analysis of that response to one of The Florida Bar's 5 separate branch offices: the Florida Bar's Miami Branch Office supervised by Chief Branch Discipline Counsel Arlene K. Sankel; the Florida Bar's Ft. Lauderdale Branch Office supervised by Chief Branch Discipline Counsel Alan Pascal; the Florida Bar's Orlando Branch Office supervised by Chief Branch Discipline Counsel Jan K. Wichrowski; the Florida Bar's Tampa Branch Office supervised by Chief Branch Discipline Counsel Sheila Marie Tuma; or the Florida Bar's Tallahassee Branch Office supervised by Chief Branch Discipline Counsel Allison Carden Sackett. The particular Chief Branch Discipline Counsel, in turn, may delegate the receipt and analysis of your response to one of its Assistant Staff or Bar Counsels. Perhaps A.C.A.P. or a Florida Bar headquarters intake counsel was convinced your alleged behavior warrants discipline. But local Bar Counsel is empowered to disagree.
If you "lawyer up" too soon, you might send the false message that you have something to hide. So yes, get the help of a Bar grievance defense attorney in drafting your response to The Florida Bar's initial inquiry. But consider with your defense counsel the possibility of signing the response yourself and on your own letterhead. Why appear to be hiding behind a defense attorney? Consider sending the message that you have nothing to hide -- and that the allegations against you do not even warrant the time and trouble of hiring yourself a defense attorney. In a proper case, such a message can go a long way.
In the wrong case, the last thing you want is your signature alone and your letterhead upon the response to The Florida Bar's initial inquiry. The Florida Evidence Code is persuasive but not binding upon the Florida Bar Grievance Referee who hold the bench trial and who will decide your case if your case is not dismissed. And of course, the Evidence Code says that your letter on your letterhead bearing your signature may be admissible as evidence against you.
So get the advice of a Bar grievance defense attorney when meeting your responsibility to answer a Bar Ethics Inquiry within 15 days. And as part of that advice, explore whether it is best in your case to have Bar counsel give the response or to respond all by yourself.
Here is a helpful checklist for what to say in your written response to the initial inquiry. Consider stating . . .
-- whether you disagree with the facts as alleged;
-- whether you believe there was any violation of The Rules Regulating The Florida Bar;
-- whether you included anything in this response that could be misinterpreted as harmful to you or your position;
-- whether there are any extra paragraphs, sentences or words that can be omitted without hurting your case ("less is more");
-- that you "pledge your full cooperation with The Florida Bar's investigation"; and
-- (in the proper case) that you are requesting a face-to-face meeting with your assigned Bar prosecutor.
Let's explore in detail that last line on the checklist.
Meeting In Person with The Florida Bar's Branch Discipline Counsel:
After you have met your obligation to respond to The Florida Bar's initial inquiry in writing, The Rules Regulating The Florida Bar do not forbid you from requesting to meet face-to-face with the local Florida Bar Prosecutor assigned to your case. Likewise, those same rules do not forbid Bar Counsel prosecutors from granting your request. You might even consider making that request as part of your written response. In the proper case, it sends the signal that you have nothing to hide, and that you wish to be fully cooperative with The Florida Bar's ethics investigation. Perception can be important.
But if you request such a meeting, and your request is granted, proceed with caution. All Florida Bar Branch Offices have Staff Investigators, who may have job experience from former careers such as private investigators, military, law enforcement, or government investigations. These Staff Investigators are often used by The Florida Bar as witnesses against you before the Grievance Referees who hold the bench trials that decide your guilt or your innocence, and your punishment or lack of punishment. In my experience, a Staff Investigator will accompany the Bar Counsel prosecutor to the meeting.
So if you attend such a meeting, consider bringing your own eyewitness who can also testify to what was said and done. Again, perception can be important. Bringing your choice of Florida licensed Private Investigator sends one message. Bringing your spouse sends another. Prepare for this meeting with your Bar grievance defense attorney. As part of that preparation, discuss who should attend with you.
At the meeting, try to listen more often than you speak. Pay attention both to what you hear and what you can see. Behavior can be quite telling. At one such meeting I attended, Bar Counsel interrupted a discussion with a wholly unrelated question, and while asking her question she looked across the table at the Staff Investigator, who in turn started taking notes. Do you think the answer to this question was critical to Bar Counsel's case? Observing such behavior may help you understand just what facts are important about your case in your Bar Counsel prosecutor's mind.
Here is a helpful checklist for preparing for such a meeting. Consider . . .
-- Reviewing the complainant's statement and your response to it;
-- Locating and copying any fully favorable documents that support your position or contradict the complainant's;
-- Anticipating what questions you expect and considering what answers you will give; and
-- Learning what you can about the Bar Counsel assigned to prosecute your case.
Doing the last suggestion on this checklist can prove difficult, even in this electronic age of ours. We can offer you the following guidance in your research.
Getting Insight About Those Involved With Conducting Your Florida Bar Ethics Investigation:
Obviously, the name of the local prosecuting Bar Branch Office assigned to your case appears in the initial inquiry paperwork sent to you by The Florida Bar's Tallahassee headquarters. But did you know that the Grievance Committee that supervises your prosecuting Bar Counsel can also be determined from that paperwork? Check the materials sent to you by The Florida Bar, and look at your "File Number" assigned to you. The ending letters and digits tell you which Grievance Committee is yours. For example, if your File Number ends in (9F), then your Grievance Committee is from Florida's Ninth Judicial Circuit, and is Committee F for that circuit. A somewhat up-to-date listing of each committee and its members can be found here.
If the initial inquiry paperwork does not specify the name of the individual serving as your prosecuting Bar Counsel, you might learn his or her name by contacting the Branch Office, or in the case of a Grievance Committee who supervises only a single Bar Counsel, by noting her name on the website listed using the somewhat cryptic description of the Committee's "staff contact." A list of most if not all prosecuting Bar Counsel employed by The Florida Bar can be found here. Because Bar Counsel must be a Florida-licensed attorney, their most basic biographical information can be found just like all the rest of the members of The Florida Bar by searching the "find a lawyer" section of The Florida Bar's own website.
You might wonder how experienced your Bar Counsel prosecutor may be. Here is one way to make an educated guess. Any time a Florida attorney is convicted by an Ethics Referee, that referee's report must be approved or rejected by the Supreme Court of Florida. So, you might research how much of that type of experience your particular Bar Counsel prosecutor holds by searching for his or her name on the Florida Supreme Court's online case docket. Find 1 or 2 cases listed, and you may be facing a newbee. Find 100 or 200 cases listed, and you may be facing a veteran.
You might also ask your Bar grievance defense attorney about his or her experience with or knowledge of the particular Bar Counsel assigned to prosecute your case. Some Bar grievance defense attorneys extol their past experience as Bar prosecutors. Having a defense attorney who is a friend of or a former co-worker of your opposing counsel may or may not be a good thing in your current situation. Choose wisely.
So in summary, it may be hard to gather reliable information about many of those individuals involved in your Florida Bar grievance, but a helpful checklist of some things that may help enlighten you includes . . . .
-- Some internet research about the identity of the Grievance Committee and its members,
-- Some online case docket research about past cases taken to the Florida Supreme Court by your particular Bar Counsel prosecutor,
-- Some "asking around" about the relevant lawyers, and
-- Perhaps assembling yourself a useful dossier of the information you are able to locate.
Speaking of assembling information, consider getting your own house in order when it comes to the relevant documents in your possession. This is not only because you need evidence to help win your case, but also because of The Florida Bar's habit of requesting further documentation from the accused attorney after receiving the attorney's response to the initial ethics inquiry. Which brings us to our next detailed topic.
Responding to Document Requests and Trust Account Audit Requests from The Florida Bar:
At any time after a Florida lawyer ethics inquiry begins, The Florida Bar might request you to provide them with documents or might inform you that they put one or more of your Florida Lawyer Trust Accounts under audit. In my experience, there is the possibility that such requests for documents or audits could possibly exceed The Florida Bar's authority at the time the request is made.
Consider the audit of Lawyer Trust Accounts. Especially with an IOTA Trust Account or IOLTA Trust Account, you might presume The Florida Bar holds the right to audit it at any time. But The Rules Regulating The Florida Bar only explicitly empower The Bar to audit an attorney's trust account when one of 9 specifically enumerated conditions exist. Those 9 conditions, found in Florida Bar Rule 5-1.2(g), are rare conditions indeed, such as your insanity, your disbarment, your bankruptcy, you being charged with a felony by a criminal law prosecutor, and 4 other unusual circumstances. If The Florida Bar tells you your trust account is "under audit," consult the Rule 5-1.2(g) list to confirm The Bar has such explicit authority at this time. If it appears they do not, you may wish to contact a Bar grievance defense attorney for advice. See also The Florida Bar v. Rosen, 608 So.2d 794 (Fla. 1992) (case law precedent discussing, inter alia, when The Florida Bar has the right to audit a trust account).
Of course, you want to fully cooperate with The Florida Bar's investigation, and you want to honor any document request The Bar is empowered to make. The Florida Bar's requesting document might quote a foreboding-sounding rule about contempt powers of the Supreme Court of Florida, and of course, our Supreme Court certainly has such powers. You may note that, technically speaking, The Florida Bar's prosecutors are acting on behalf of the Supreme Court of Florida. But in practice, Florida Bar prosecutors ANSWER TO the Supreme Court of Florida. This is a critical difference.
So a checklist of things to consider when receiving a Florida Bar Trust Account Audit Request, a Florida Bar Subpoena Duces Tecum, or a Request for Production from The Florida Bar might include:
-- Confirming The Florida Bar has authority to request what it seeks;
-- Scheduling some time to assemble the documents, and scheduling the deadline for production; and
-- Getting a "second set of eyes" on those documents before producing them to The Florida Bar to make sure they are in perfect order.
Speed or Pace of Progression of The Florida Bar's Grievance Process and Ethics Investigation:
"No lawyer, and no client, can be indifferent to the disciplinary enforcement system. If the process is performed sensibly and quickly it will provide for lawyers and clients alike a needed service to assure honorable and effective delivery of legal services. If the disciplinary process does not meet that standard, a disaffected public is likely to impose limits upon the process . . . . Continuity of judicial regulation of the legal profession depends on action taken by the profession itself. "
-- The American Bar Association, quoting attorney Robert B. McKay, in 1990
I am unaware of any official acknowledgement by The Florida Bar that the speed or pace of progression of ethics inquiries is too slow. But I have heard so many accused lawyers say so. Personally, I agree with them. You might, too.
The Florida Bar tells the public that the Statute of Limitations is 6 years for "inquiries raised or complaints presented by or to The Florida Bar." As any lawyer knows, the determination of whether a Statute of Limitations has expired can be a complex decision requiring many factors such as when the time commenced and whether the time was tolled.
So assuming it is true that The Florida Bar's grievance process takes too long to complete, perhaps the best answer as to why it moves so slowly may be that the extraordinarily long Statute of Limitations almost certainly puts very little pressure upon The Florida Bar to move things along. In light of this possibility, you might consider:
-- Urging those involved to keep things moving;
-- Answering any requests for information well in advance of the deadline and otherwise keeping things moving yourself; and
-- Choosing a Bar grievance defense attorney committed to getting things done without requesting extensions of time.
Assignment of Your Ethics Inquiry to a Local Grievance Committee:
"Local bar investigative committees . . . foster cronyism as well as prejudice against unpopular respondents. . . . result in a lack of uniformity in procedures and in the application of the rules of professional conduct. . . [and] promote delay in the handling of disciplinary cases."
-- Quote from: the American Bar Association (1992 Report)
With the possible exception for alleged advertising violations, Florida uses a type of local investigative committee to determine which accused lawyers will face discipline charges. Is that wise? As long ago as June 1970, a special committee of the American Bar Association issued their "Clark Report" recommending all states remove local components from their lawyer disciplinary systems. According to the American Bar Association's 1992 Report of the Commission on Evaluation of [Lawyer] Disciplinary Enforcement (the "McKay Report"), "despite the fact that eliminating local disciplinary enforcement was a major recommendation of the Clark Report, at least twelve jurisdictions still have significant local components in their disciplinary systems. Local components, such as local bar investigative committees, foster cronyism as well as prejudice against unpopular respondents. Local components result in a lack of uniformity in procedures and in the application of the rules of professional conduct. Local components promote delay in the handling of disciplinary cases." Stated somewhat differently, the American Bar Association has warned for decades that it should not be a local bar investigative committee that will apply the rules of professional conduct to decided whether an ethics inquiry becomes a Bar Complaint.
Yet under the Rules Regulating The Florida Bar, it will be one of Florida's local investigative committees, called a "Grievance Committee," that will apply the rules of professional conduct to decide whether your ethics inquiry becomes a Bar Complaint. Will the American Bar Association's prediction of cronyism, lack of uniformity, and delay occur in your case once it is referred to a local Grievance Committee? Time will tell.
So if your case is referred to a local Grievance Committee, now is the time to get to know a little bit about its members. Approximately one-half to two-thirds of the Grievance Committee members are fellow attorneys from near your geographic area, and the rest are non-lawyers from the same area.
You might consider reaching out to The Florida Bar Grievance Committee Chairperson, if for no other reason than to show your cooperation with their investigation. Some Grievance Committee Chairmen or Chairwomen will take your phone call or respond to your letters. But in my experience, some will not.
If the Florida Bar Grievance Committee reaches out to you, it will be through their member who is chosen as the Investigating Member for your grievance file. Do not confuse the Investigating Member with the Designated Reviewer. Although the names sound similar, the tasks performed are different. The Investigating Member is a committee member appointed by your particular Committee Chairperson to investigate your particular matter. The Designated Reviewer is a member of The Florida Bar Board of Governors appointed with certain oversight powers regarding your Grievance Committee and your Florida Bar Counsel prosecutor.
If the Florida Bar Grievance Committee follows what I believe are the correct interpretation of the relevant procedures, it will be the Investigating Member who recommends your indictment or your vindication to the other Grievance Committee members but who does not cast a vote toward indictment or vindication. Technically speaking, indictment is called "a finding of probable cause" and vindication is "a finding of no probable cause." Indictment seems an appropos abbreviation, considering that a finding of probable cause requires your Florida Bar Counsel prosecutor to file a formal Complaint against you with the Supreme Court of Florida except in the rare circumstance where a wise Designated Reviewer instructs otherwise. Vindication may not be so appropos, considering nearly every Grievance Committee's habit of telling you about your finding of "no probable cause" within a terribly drafted form letter warning you about never doing anything like it again and how you would be wise to review the Oath of Attorney. I do not know who first wrote this foreboding form letter, but he or she would be wise to review what is meant by the concepts of chivalry and impartiality. Looking past the unkindness of the form letter, a finding of "no probable cause" is akin to a dismissal and does not count as discipline. A finding of "no probable cause" must be your goal.