sunEthics

A BRIEF OVERVIEW OF LAWYER REGULATION IN FLORIDA

by Timothy P. Chinaris

 The Supreme Court of Florida and Its Administrative Agencies

    The Supreme Court of Florida.  In Florida, as in most states, regulation of lawyers is said to be the exclusive province of the state supreme court.  The court certainly has primary responsibility for this important function but, as discussed below, legislative actions also affect how lawyers conduct themselves and the parameters in which they properly operate.  Although the power to regulate lawyers is inherent in the courts, Petition of Florida State Bar Ass’n, 134 Fla. 851, 186 So. 280 (1938), in Florida it is also a constitutional mandate.  Fla. Constit. Art. V., §15 provides that the Supreme Court of Florida has “exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”  The Court’s authority includes determining who may be admitted to the bar, setting ethical standards for those admitted, and disciplining lawyers who violate applicable standards.  This authority also includes prohibiting non-lawyers from practicing law, defining what activities constitute the “practice of law,” and enforcing prohibitions on unauthorized (or unlicensed) practice of law.  See, e.g., The Florida Bar v. Escobar, 322 So.2d 25 (1975).  To assist it in carrying out these tasks, the Court has created two agencies:  the Florida Board of Bar Examiners; and The Florida Bar.

The Florida Board of Bar Examiners.  “The Florida Board of Bar Examiners is an administrative arm of the Supreme Court of Florida created by the Court to handle matters relating to bar admission.”  Rule 1-12, Rules of the Supreme Court Relating to Admissions to the Bar.  The Board consists of twelve lawyer and three non-lawyer members.  Rule 1-21.  The Board investigates the character and fitness of applicants for admission to the bar, administers and grades the bar examination, confirms that each applicant has met the other eligibility requirements, and ultimately recommends to the Supreme Court whether an applicant should be admitted or denied admission. 

            The Florida Bar.  Complementing the Board of Bar Examiners, which deals with persons before they are admitted to the bar, the Court’s administrative arm that deals with persons after admission is The Florida Bar.  Since 1950 Florida has had a unified bar, requiring membership of all attorneys who are licensed to practice law in Florida.  See Petition of Florida State Bar Ass’n, 40 So.2d 902 (1949).  The Bar’s purposes are “to inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.”  Rule 1-2, Rules Regulating The Florida Bar.  These purposes are carried out by the Board of Governors, bar committees (including grievance committees), and bar counsel.  Specifically, the Bar focuses its attention on the areas of lawyer regulation, ethics and lawyer advertising guidance, professionalism promotion, and unlicensed practice of law regulation. 

Functions of The Florida Bar

Lawyer regulation.  The rules governing the Bar’s disciplinary process are set forth in the Rules of Discipline (Chapter 3, Rules Regulating The Florida Bar). The Bar investigates complaints filed against Florida lawyers by members of the public, other lawyers, and the judiciary.  The Bar also may open investigations on its own initiative.  Initial screening of complaints is done by bar counsel.  If a complaint on its face alleges facts which, if true, would constitute a violation of the Rules Regulating The Florida Bar, it typically is sent to a local grievance committee.  Rule 3-7.3.  The grievance committee (which includes both lawyers and non-lawyers) makes “probable cause” determinations.  Rule 3-7.4.  (The grievance committee also can dispose of certain complaints that are considered “minor misconduct,” Rule 3-7.4(m).)  If the grievance committee finds probable cause that a violation occurred, a formal complaint is filed by the Bar against the respondent attorney in the Supreme Court of Florida.  The Court then appoints a local judge, called a “referee,” to try the case.  Rule 3-7.6.  Ultimate authority to impose disciplinary measures rests in the Supreme Court.  Rule 3-7.7.

Florida has what often is called an “open” system with respect to confidentiality of grievance complaints and dispositions.  Complainants, respondents, or witnesses are free to disclose the existence of grievance complaints or proceedings at any stage in the process.  Rule 3-7.1(a).  During the investigatory stage of a complaint, the Bar’s file on the complaint is not public information.  Once the complaint is closed, a finding of probable cause is made, or a finding of no probable cause is made, the complaint and all further proceedings in that matter become public information.  Rule 3-7.1(a).  Florida no longer has any private (i.e., non-public) form of lawyer discipline.  A person who files a grievance complaint with The Florida Bar concerning an attorney is protected against suit by that attorney by an absolute privilege, regardless of whether the complaint is made in good faith, provided the complainant “makes no public pronouncement of the complaint outside the grievance process.”  Tobkin v. Jarboe, 710 So.2d 975, 976 (Fla. 1998).

Presently a Florida Bar special commission is conducting a thorough review of the Bar’s lawyer regulation process.  The commission is expected to make recommendations to the Board of Governors late in 2004.

            Ethics and advertising guidance. The Florida Bar offers advisory opinions to its members through the Florida Bar Ethics and Advertising Department and two of its standing committees, the Professional Ethics Committee and the Standing Committee on Advertising.  These services are discussed below. 

            Professionalism promotion.  The Supreme Court of Florida and The Florida Bar work in a number of ways to promote professionalism among Florida lawyers.  These activities are discussed below.  Rules governing the Bar’s Center for Professionalism are set forth in Chapter 19, Rules Regulating The Florida Bar.

           Unlicensed practice of law regulation.  In Florida, both the legislative and judicial branches of government regulate the unlicensed (or unauthorized) practice of law (commonly referred to as “UPL”).  Practicing law without a license can be illegal.  See Fla. Stat. §454.23 (making unauthorized practice of law or holding out as a lawyer a third degree felony).  Pursuant to its authority under Fla. Constit. Art. V., §15, the Supreme Court also defines “the practice of law,” and prohibits practicing law without a license or other authorization.  The Florida Bar aids the Court through its Standing Committee on UPL, its Circuit UPL Committees, and bar counsel.  The Bar serves an important educational role by rendering formal advisory opinions on UPL questions.  These opinions must be reviewed and approved by the Supreme Court before they become final.  See Rule 10-9.1.  In cases involving relatively minor acts of unauthorized practice, bar counsel and the appropriate Circuit UPL Committee work together to obtain “cease and desist affidavits” from offenders.  Rule 10-6.3.  In more serious cases (usually involving public harm), the Bar instigates formal proceedings against offenders by filing a complaint in the Supreme Court.  The Court may issue injunctions against persons who are engaging in unauthorized practice of law (Rule 10-7.1) and may hold offenders in indirect criminal contempt (Rule 10-7.2), which can result in up to 5 months imprisonment and a fine of up to $2500.  The Court may also award restitution and costs.

The Florida Rules of Professional Conduct

            Historical overview.  The Supreme Court’s constitutional authority to regulate the admission of persons to the practice of law permits it to establish the ethical standards for those who are admitted.  Over the years the Court has promulgated a series of ethics codes for Florida lawyers.  In 1936, the Court adopted the Canons of Professional Ethics of the American Bar Association as the governing ethical standards.  See Petition of Florida State Bar Association, 186 So. 280, 285 (Fla. 1938).  The Canons were replaced in 1970 by a modified version of the ABA’s Code of Professional Responsibility.   In re Integration Rule of The Florida Bar, 235 So.2d 723 (1970).  The current ethics standards, the Florida Rules of Professional Conduct (“RPC”), were adopted by the Court in The Florida Bar re Rules Regulating The Florida Bar, 494 So.2d 977 (Fla. 1986), opinion corrected by The Florida Bar re Rules Regulating The Florida Bar, 507 So.2d 1366 (Fla. 1987).  The RPC are based on the ABA Model Rules of Professional Conduct, with variations in several areas (e.g., Rule 4-1.6, concerning attorney-client confidentiality).  The Code and the Rules were presented to the Court for its action after extensive study by Florida Bar committees and the Board of Governors.  (The Court also regulates the ethical conduct of judges.  See, e.g., In re Code of Judicial Conduct, 643 So.2d 1037 (Fla. 1994; Judicial Qualifications Commission Rules of Procedure, 719 So.2d 858 (Fla. 1998).)

            The current rules.  The Florida Rules of Professional Conduct presently are the governing ethical standards for Florida lawyers.  The RPC are contained in Chapter 4 of the Rules Regulating The Florida Bar.  Rules governing attorney trust accounts are found in Chapter 5, Rules Regulating The Florida Bar.  “Failure to comply with an obligation or prohibition imposed by rule is a basis for invoking the disciplinary process [described in Section I.A.3.a., above].”  Preamble, RPC.  In addition to the RPC, lawyers must comply with requirements imposed by law, or court rules or orders.

           Future developments.  Following a thorough evaluation of its Model Rules of Professional Conduct, in 2001 the American Bar Association adopted significant revisions to those rules.  The Florida Bar President appointed a Special Committee to Study the ABA Model Rules and asked it to make recommendations to the Bar’s Board of Governors concerning whether Florida should revise its RPC in view of the ABA’s changes.  This committee outlined its recommendations in a Final Report and submitted the report to the Board of Governors.  A number of changes were suggested.  The matter presently is pending before the Board.  Any recommended changes approved by the Board will be submitted to the Supreme Court of Florida for its review.

Researching Legal Ethics Issues in Florida

            The Rules of Professional Conduct.  The Florida RPC are readily available to Florida lawyers.  See, e.g., sunEthics.com; annual directory edition of the Florida Bar Journal; volume 35, Florida Statutes Annotated; Florida Rules of Court (West Publishing); Florida Bar web site.  Information and advisory opinions may be obtained from the Florida Bar’s Ethics Department.  Click here for a comprehensive outline of ethics research information.  Similar information also is found on the “Ethics Information” portion of the Florida Bar web site.

             Advisory ethics opinions.  The Bar operates an extensive advisory service to help Florida lawyers with questions regarding interpretation and application of the ethics rules (including lawyer advertising and solicitation).  Bar members may obtain oral advisory ethics opinions by calling the Bar’s “Ethics Hotline” at (800) 235-8619.  Bar members may request written opinions by writing to the Florida Bar Ethics Department at 651 E. Jefferson Street, Tallahassee, Florida 32399-2300 or by emailing the service at eto@flabar.org.  The Bar’s Ethics and Advertising Department attorneys provide advisory opinions to Bar members who inquire about their own contemplated conduct.  A Bar member who disagrees with a written opinion rendered by a staff attorney may appeal to the Professional Ethics Committee and, ultimately, to the Bar’s Board of Governors.  Rules for issuance of oral and written ethics opinions are set forth in The Florida Bar Procedures for Ruling on Questions of Ethics (published in the September directory edition of the Florida Bar Journal and available on the Bar’s web site or at sunEthics.com.  For more information about how to get an ethics opinion, click here. 

            Lawyer advertising opinions.  Florida lawyers are required to file certain ads (those containing illustrations or more than basic factual information) and all direct mail solicitation letters with the Bar for review.  RPC 4-7.7 through 4-7.9 contain the specific requirements and exemptions.  The Bar’s Ethics and Advertising staff attorneys provide a written advisory opinion (usually within 15 days) concerning whether the ad complies with applicable rules.  Additionally, oral information about the lawyer advertising rules can be obtained by calling the Ethics Hotline.  A Bar member who disagrees with a written opinion rendered by a staff attorney may appeal to the Standing Committee on Advertising and, ultimately, to the Bar’s Board of Governors.

Professionalism and Civility

            “Ethics” vs. “professionalism”.  It can difficult to precisely distinguish between the related concepts of “ethics” and “professionalism.”  Often it is said that “ethics” standards are those rules with which a lawyer must comply in order to remain in good standing before the bar.  In contrast, “professionalism” is aspirational in nature.  It is a level of conduct that exceeds the minimum standards required by applicable disciplinary rules, factoring in moral principles such as honesty, integrity, and fairness.  

            Professionalism initiatives.  Responding to concerns raised in a number of contexts about eroding lawyer professionalism, in 1996 the Florida Bar successfully proposed that the Supreme Court create a Supreme Court Commission on Professionalism and a Florida Bar Center for Professionalism.  The Commission, which includes at least one Supreme Court justice, plans for the creation and implementation of programs promoting the ideals and goals of professionalism, and also oversees the development of judicial professionalism programs and the teaching of professionalism in law schools.  The commission is the governing board of the Bar’s Center for Professionalism.  The Center in turn works with the Bar’s Standing Committee on Professionalism to maintain a multi-media library on professionalism issues, develop and present programs, and serve as a resource to local bar associations as they address professionalism concerns around the state.  The increasing emphasis on professionalism is reflected by the Supreme Court’s decision to require all active Florida Bar members to complete, during each three-year CLE reporting cycle, at least five hours of credits in “legal ethics or professionalism, including approved substance abuse programs.”  CLE courses offering professionalism credit in professionalism must be approved by the Bar’s Center for Professionalism.  Rule 6-10.3, Rules Regulating The Florida Bar.

             Professionalism codes.  Some courts and organizations in Florida have developed statements (sometimes referred to as “codes” or “creeds”) that deal with professionalism concerns.  These codes urge practitioners to carry their conduct to a level above mere compliance with the mandatory ethics regulations.  Examples of these codes include: The Florida Bar “Creed of Professionalism”; The Florida Bar “Ideals and Goals of Professionalism”; The Florida Bar Trial Lawyers Section “Guidelines for Professional Conduct”; and the Palm Beach County Bar Association “Standards of Professional Courtesy.  (Some of these codes also are published in the September directory issue of the Florida Bar Journal.)

Statutes Affecting Lawyer Ethics

            Generally.  Although the Florida Constitution grants to the Supreme Court the exclusive jurisdiction to regulate bar admissions and discipline, the actions of the Florida Legislature affect the professional lives of lawyers through statutes relating to various areas of the attorney-client relationship.  Some of these statutes are discussed below.

            Solicitation of clients.  Subject to certain exceptions, Florida law makes it a first degree misdemeanor for any person or someone acting on that person’s behalf to “ to solicit or procure through solicitation either directly or indirectly legal business.”  Fla.Stat. §877.02.  The Supreme Court has held that this statute does not unconstitutionally intrude upon the Court’s exclusive authority to regulate the conduct of lawyers.  Pace v. State, 368 So.2d 340, 345 (Fla. 1979).

           Attorney-client privilege.  While in some states the attorney-client privilege is a matter of common law, in Florida it is a creature of statute.  “Except as otherwise provided by this chapter, any other statute, or the Constitution of the United States or of the State of Florida, no person in a legal proceeding has a privilege to:  (1) Refuse to be a witness [;] (2) Refuse to disclose any matter[;] (3) Refuse to produce any object or writing [; or] (4) Prevent another from being a witness, from disclosing any matter, or from producing any object or writing.”  Fla.Stat. §90.501.  The statutory lawyer-client privilege, including definitions and exceptions, is set forth in Fla.Stat. §90.502.  Understanding this privilege is vitally important to Florida lawyers not only for evidentiary purposes but also to help them fully appreciate and properly apply their ethical duties regarding confidentiality.  RPC 1.6 sets forth the ethical duty of lawyer-client confidentiality, which generally is much broader than the evidentiary privilege of Fla.Stat. §90.502; this means that something that is confidential as an ethical matter may not be privileged as a legal matter.  Lawyers sometimes have difficulty determining which of these two standards applies in a particular situation.  The Comment to RPC 1.6 provides this helpful guidance:  “The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.”

            Attorney’s fees.  Few legal ethics topics interest lawyers more than attorney’s fees.  Many statutes address various aspects of this issue.  Some of these statutes establish caps on fees that lawyers may charge in particular types of cases.  See, e.g., Fla.Stat. §768.28(8) (limiting attorney’s fees in tort actions against the state or its agencies to no more than 25% of judgment or settlement); Fla.Stat. §440.34 (requiring attorney’s fees to be approved by judge of compensation claims and placing limits on the amount of the fee award).  Other statutes shift liability for attorney’s fees from one party to another.  See, e.g., Fla.Stat. §61.16 (providing for fee shifting in dissolution of marriage, support, and child custody cases); Fla.Stat. §768.79 (in civil cases, “if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover [from the plaintiff] reasonable costs and attorney's fees incurred . . . if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer”); Fla.Stat. §501.2105 (providing for payment of attorney’s fees by non-prevailing party in Florida Deceptive and Unfair Trade Practices Act cases).  Additionally, other law addresses the question of fees when a lawyer, in compliance with the ethical duty outlined in Rules 5-1.1 and 5-1.2, Rules Regulating The Florida Bar, initiates an interpleader action to determine the ownership of disputed funds or property.  See, e.g., Bache Halsey Stuart Shields Inc. v. Witous, 411 So.2d 1324 (2d DCA 1982).  The key point is that a lawyer faced with an attorney’s fee question should research both the RPC (particularly Rule 4-1.5) and the Florida Statutes.

            Sanctions.  Finally, lawyers may be required to pay the opposing party’s attorney’s fees upon a court finding that they “knew or should have known that a claim or defense when initially presented to the court or at any time before trial:  (a) Was not supported by the material facts necessary to establish the claim  or defense; or (b) Would not be supported by the application of then‑existing law to those material facts.”  Fla.Stat. §57.105(1).

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