Florida Bar opposes lawyer initiated petition to make appeal court finding of frivolousness “conclusive” rule violation

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Bar’s response opposing the Petition initiated by a Florida lawyer to amend Florida Bar Rule 3-4.3 which states that a final decision of the Florida Supreme Court, Florida appeals court, or federal appellate court determining prosecution of a frivolous claim“ 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 matter is The Florida Bar Re: Petition to Amend Rules Regulating The Florida Bar 3-4.3, 3-5.3, and 4-3.1 (Case No. SC17-1965).  The Response is here: https://efactssc-public.flcourts.org/casedocuments/2017/1965/2017-1965_response_49952_response.pdf

The proposed rule amendment would add a section to Florida Bar Rule 3-4.3 (misconduct or minor misconduct), providing that if the Florida Supreme Court or 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.”

The proposed rule would also require a lawyer who has had such a ruling against him or her to notify the Bar within 10 days with copies to opposing counsel.  Bar counsel would 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 BOG Disciplinary Procedure Committee (DPC) voted 7-0 to oppose the proposed petition in November 2017 and the BOG voted unanimously to file a response opposing the petition at its December 8, 2017 meeting.  The Bar filed its response opposing the proposed amendment on December 29, 2018.

Bottom line:  As I previously stated, this is rare member initiated petition to amend the Florida Bar rules.  The rule amendment appears to be well intended; however, it is problematic and ill advised.  The Bar’s Response sets forth the reasons that the Bar opposes the rule amendment, including the fact that a civil case involves different parties, different rules and statutes, different goals, and lower evidentiary standards.

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

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
This entry was posted in Attorney discipline, Attorney ethics, corsmeier, Florida Bar discipline, Florida Bar ethics, Florida Bar Rule 4-3.1 frivolous filings, Florida Bar- proposed rule would make finding of frivolous filing "conclusive determination" of Bar rule violation, Florida Supreme Court, joe corsmeier, joseph corsmeier, Lawyer Ethics, Lawyer sanctions frivolous filing, Uncategorized and tagged , , , , . Bookmark the permalink.

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