For lawyers, the term “professional ethics” has a more specific meaning than what can be found in a dictionary or in an academically oriented law school class. “[E]thical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession.” Azar v. Garza, 138 S. Ct. 1790 (2018).
Members of The Florida Bar are professionally bound and obligated to follow the specific rules found in The Florida Bar Rules of Professional Conduct, which are delineated in Chapter 4 of The Rules Regulating The Florida Bar. See, The Florida Bar Re Rules Regulating The Florida Bar, 494 So.2d 977 (Fla. 1986). These rules are based upon The ABA Model Rules of Professional Conduct. However, the Florida Rules have been amended over the years and they do not exactly track the ABA Rules.
There have been numerous articles and court opinions discussing the rules contained in Chapter 4. However, attorneys need to also be familiar with the rules contained in Chapter 3 entitled Rules of Discipline. which can also result in disciplinary proceedings. Rule 3-4.2 Rules Of Professional Conduct incorporates the rules in Chapter 4, by stating “Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline.”
In many ways the rules in Chapter 3 are more onerous. A primary example is Rule 3-4.7 Oath which provides:
Violation of the oath taken by a lawyer to support the constitutions of the United States and the state of Florida is ground for disciplinary action. Membership in, alliance with, or support of any organization, group, or party advocating or dedicated to the overthrow of the government by violence or by any means in violation of the Constitution of the United States or constitution of this state is a violation of the oath.
The Board of Governors of the Florida Bar are responsible for “maintaining high ethical standards among the members of The Florida Bar. . . . . No formal complaint may be filed by The Florida Bar in disciplinary proceedings against a member of the bar unless 1 of the following conditions has been met:”
- Finding of Probable Cause
- Emergency Suspension or Probation
- Felony Determination or Adjudication
- Discipline In Another Jurisdiction
- Felony Charges.
- Discipline on Action of the Florida Judicial Qualifications Commission.
Rule 3-3.2 Board Of Governors Of The Florida Bar.
The sanctions for violating the rules in Chapter 3 include admonishment, probation, private reprimand, public reprimand, monetary sanctions, private reprimands, public reprimands, suspensions, and even disbarment. 3-5.1 Types of Discipline Rule 3-5.1 Generally.
The jurisdiction of the circuit courts is concurrent with that of The Florida Bar under these Rules of Discipline. The forum first asserting jurisdiction in a disciplinary matter retains jurisdiction to the exclusion of the other forum until the final determination of the cause.
Rule 3-3.5 Circuit Court Jurisdiction (bold emphasis supplied). It has been my experience that this provision is routinely ignored. Indeed, I am aware of several instances where the circuit court has reported or ordered an attorney to self-report to the Florida Bar. The procedures before the circuit court are governed by rule 3-7.8.
The Florida Bar may order the respondent to:
- forfeit all or any part of the fee
- return an excessive fee to the client
- forfeit to The Florida Bar Clients’ Security Fund any fee or costs associated with a trust account violation.
Rule 3-5.1(f).
If all the parties agree the “referee may recommend diversion of a disciplinary case to a practice and professionalism enhancement program if the bar approves diversion and the respondent agrees.” The procedures for approval of conditional pleas provided in these rules apply to diversion at the trial level before the referee. Rule 3-5.3(i) Diversion of Disciplinary Cases To Practice And Professionalism Enhancement Programs.
Note that diversion “into the practice and professionalism enhancement program is NOT a disciplinary sanction.” Rule 3-5.3(j) Diversion Of Disciplinary Cases to Practice and Professionalism Enhancement Programs (bold emphasis supplied). See also In Re: Amendments to Rules Regulating The Florida Bar – Chapter 3., No.SC2024-0029 Sept. 5, 2024.
Similarly, Admonishments containing the heading “Not to be Published” will not be published in the official court reporter and will not be published in The Florida Bar News. However,“’Not to be Published’ does not have the same meaning as “confidential.” The Florida Bar may post information regarding specific orders of admonishment on the bar’s website. Further, The Florida Bar may provide information regarding an admonishment on inquiry.” Rule 3-5.4(d) Publication of Discipline.
Every litigating attorney needs to be aware that it is imperative to “notify The Florida Bar of any change of mailing address, e-mail address (unless the lawyer has been excused by The Florida Bar or the Supreme Court of Florida from e-filing and e-service), and military status.” Rule 3-7.11(b) General Rule Of Procedure.
In addition to the Florida Bar rules, professionalism is also governed by federal and state statutes and rules, by local administrative orders, and by each judge’s practices and procedures. Each of these may include provisions for sanctioning attorneys who violate them, including the imposition of payment of money as a sanction. Therefore, every lawyer should thoroughly review the rules, recent case law, and the local practices and procedures on every matter (litigation or transactional) he or she handles.
Attorneys are held accountable for violation of rules of ethics and professionalism at engagement and initial consultation, during the time of representation, and even after the attorney’s representation has ended. See e.g., Already, LLC v. Nike, Inc., 568 U.S. 85, (2013)(“A defendant cannot, however, automatically moot a case simply by ending its unlawful conduct once sued.”).
Instead of imposing sanctions or dismissing appeals or petitions, the courts may refer the issue to The Florida Bar (Nocari Inv., LLC v. Wells Fargo Bank, N.A., 206 So. 3d 761 (Fla. 3d DCA 2016) or the local professionalism committee (Beckles v. Brit, 176 So. 3D 387 (Fla. 3d DCA 2015).
Recently, the Florida Supreme Court has taken a more forceful position by rejecting a referee’s findings of mitigation and imposing a more severe sanction. The Fla. Bar v. Schwartz, No. SC2019-0983, at *2 (Fla. Jan. 18, 2024).
The Florida Supreme Court has expansively revised the Florida Rules of Civil Procedure, which takes effect January 1, 2025, in a May 23, 2024 order, In Re: Amendments to Florida Rules of Civil Procedure, Case No. 0962. On December 5, 2024, the Florida Supreme Court issued opinion no. SC2024-0622 In Re: Amendments to Florida Rule of Civil Procedure 1.510 and New Florida Rule of Civil Procedure 1.202.
Finally, everyone should be aware that the Florida Supreme Court requires all attorneys to take technology-related CLE courses. See, Florida Supreme Court Case No. SC16-574, Sept. 29, 2016. The Florida Supreme Court amended Rule 6-10.3 “to allow lawyers to receive one general credit hour of . . . (CLE) for every four hours of pro bono service,” but for “no more than five credit hours.” .
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