Author: Lanse Scriven

Trial Process

After a formal complaint is filed, the Florida Supreme Court issues an order directing the chief judge of the applicable circuit to appoint a county or circuit judge to serve as the referee, or trial judge, in the case.  The referee has 180 days from appointment to file his or her report with the Florida Supreme Court.  Within 60 days of the order referring the case to the referee, the referee is required to conduct a pretrial conference where deadlines will be established, such as the deadline to complete discovery and the final hearing date.

Disciplinary trials are considered neither criminal nor civil. Rather, they are quasi-judicial administrative proceedings.  Although the Florida Rules of Civil Procedure apply, there are two important differences between civil and disciplinary trials.  First, referees in disciplinary trials have wide discretion to admit or exclude any relevant evidence, including hearsay.  Second, the Bar must prove that a disciplinary violation occurred by clear and convincing evidence, which is something less than the “beyond a reasonable doubt†standard  required in criminal cases, but more than the “preponderance of the evidence†standard typically applicable in civil cases.

Within 30 days after the conclusion of all evidence, or 10 days after the referee’s receipt of the transcripts of all hearings, whichever occurs later, the referee is required to file a report and recommendation. Among other things, the referee must include in the report: (i) a finding of fact as to each item of misconduct charged in the formal complaint; (ii) a recommendation as to whether the respondent should be found guilty of misconduct justifying disciplinary measures; and (iii) a recommendation concerning the discipline to be imposed. The referee’s report, along with a record of the proceedings, is then transmitted to the Florida Supreme Court.

Grievance Committee

Local grievance committees are comprised of lawyers and non-lawyers whose primary purpose is to investigate allegations of lawyer misconduct. There are currently 81 local circuit grievance committees.  Grievance committee members are appointed by the Board of Governors members for the various circuits.

Grievance committees are akin to grand juries. Generally, grievance committees meet monthly to review ongoing investigations and to determine if there are grounds for moving forward with an investigation. Typically, one member of the grievance committee is assigned as the investigating member. The investigating member will interview witnesses and review documentary evidence. In most cases, the investigating member will make a recommendation to the full grievance committee regarding disposition of a case. Grievance committees have a number of options to dispose of cases, including: (1) finding probable cause that the respondent committed a violation of the Rules Regulating The Florida Bar; (2) finding no probable cause; (3) finding no probable cause with a letter of advice; (4) making a recommendation of an admonishment for minor misconduct; or (5) recommending diversion to one of the Bar’s practice and professionalism programs.

When considering whether there is probable cause for further disciplinary proceedings, grievance committees, at their sole discretion, may choose to conduct live evidentiary hearings or conduct a summary review of the evidence. If a grievance committee finds probable cause that a respondent has violated the Rules Regulating The Florida Bar, Bar counsel will prepare a formal complaint for filing in the Florida Supreme Court.

Attorney Consumer Assistance Program

Most complaints against Florida lawyers originate in the Attorney Consumer Assistance Program (“ACAPâ€).  Established in 2001, ACAP was originally launched to process telephone inquiries from disgruntled parties with the goal of resolving minor disputes between clients and lawyers before they escalated into full-blown grievances.  While ACAP still serves that purpose, it has now become the central intake point where virtually all complaints against lawyers are triaged.  Statistically speaking, far more inquiries are resolved within ACAP than actually become part of the formal disciplinary system.  Thus, ACAP provides a valuable service to both the public and the profession by sifting out matters that do not implicate the Rules Regulating The Florida Bar and do not warrant any disciplinary action.

Generally speaking, ACAP’s review of an inquiry focuses on two threshold issues: (1) Does the bar have jurisdiction over the conduct that is the subject of the inquiry?; and (2) Would the conduct, if true, constitute a violation of the Rules Regulating The Florida Bar?  If the answer to both questions is in the affirmative, ACAP will treat the inquiry as a complaint and ask that the attorney-respondent respond within 15 days.  Failure to respond to an ACAP inquiry, or any other Bar inquiry during any subsequent step in the investigatory process, constitutes a separate violation of the Rules Regulating The Florida Bar.  Following receipt of the attorney’s response and any rebuttal information submitted by the complainant, ACAP may close the case or, if it determines further review is warranted, refer the case to bar counsel at one of the Bar’s branch offices.

Bar Counsel Review

The Florida Bar’s headquarters is located in Tallahassee with branch offices in Tampa, Orlando, Ft. Lauderdale, and Miami.  After a complaint is received by the Bar, it is assigned to Bar counsel, who will conduct an independent investigation of the alleged misconduct.  As part of that investigation, Bar counsel may request additional information from the complainant or respondent.  If Bar Counsel determines that the allegations, even if proven, would not constitute a violation of the Rules Regulating The Florida Bar, Bar counsel has the discretion to dismiss the case.  Minor infractions that do not involve dishonesty may qualify for diversion to a Practice and Professionalism Enhancement Program.  Bar counsel may also determine that the matter warrants further investigation and forward the matter to a circuit grievance committee.