Hello everyone and welcome to this Ethics Alert which will discuss the Petition initiated by a Florida lawyer to amend the Bar rules and provide that a court determination that an action violates F.S. §57.105, Florida appellate Rule 9.410, or Rule 11, Federal Rules of Civil Procedure “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.” The Florida Bar published a Notice in the Florida Bar News that the petition will be filed on November 6, 2017 and members may comment on the Petition after it is filed. The Bar Notice is here: 10-1-17 Bar News Notice of Filing Petition to Amend Rule.
The proposed rule revision would amend Florida Bar Rule 3-4.3 (misconduct or minor misconduct), by adding a section on frivolous actions which would provide if any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.” Upon being notified of the finding, The Florida Bar would open a file, which would be sent to the grievance committee for review.
The proposed rule also provides that, unless there are aggravating circumstances, the referee or grievance committee considering the complaint can resolve the matter with an admonishment or referral of the lawyer to the Bar’s diversion program (lawyers would be eligible for diversion once every five years under the proposed rule).
The proposed rule would also require a lawyer who has had an appellate ruling that the a lawyer has violated the rules or state law on frivolous actions to notify the Bar within 10 days with copies to opposing counsel. Bar counsel would then docket the case “and The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”
The proposal would also amend the comment to Rule 4-3.1 to refer to the amendment to Rule 3-4.3. The comment to Rule 3-4.3 also provides that, “A lawyer shall not use any funds held in his trust account for payment of any personal obligation imposed upon the lawyer or the lawyer’s law firm as to sanctions pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule.”
The Florida Bar Rules allow members to directly propose amendments to Bar rules if the there is a petition filed with the Supreme Court signed by 50 Bar members. This petition was signed by 55 Bar members. The Board of Governors’ Disciplinary Procedure Committee (DPC) will review the proposed petition and rule amendments and will have a special meeting to discuss it. A report by the DPC on the petition is expected at the Dec. 8, 2017 BOG meeting.
Bottom line: This is rare member initiated petition to amend the Florida Bar Rules. The amendment certainly appears to be well intended; however, since an order finding that a claim or defense is frivolous does not involve a criminal conviction, I am very concerned that the proposed rule that would make an order finding a frivolous filing by an appellate court on a civil matter “a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.” I believe (and continue to believe) that a lawyer should be able to challenge such a court order since, among other things, the action and parties are different and the evidentiary requirements underlying such an order are not necessarily the same as those required for the Bar to prove a violation of the Bar rules. In addition, the courts have inherent authority to sanction lawyers for frivolous filings as well as under the relevant statutes and court rules.
According to the Bar’s October 1, 2017 Notice in the Florida Bar News:
“Members who desire to comment on this proposed amendment may do so within 30 days of the filing of the above-referenced petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar and Thomas O. Wells, Esq. Rule 1-12.1 and Rule 3-7.15 of the Rules Regulating The Florida Bar govern these proceedings.”
Stay tuned…and be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670