In Re: Amendment to Rules Regulating the Florida Bar – Rule 3-7.18 ( 2021 )

Supreme Court of Florida
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No. SC21-653
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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.
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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
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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
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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;
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(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.
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