In re Supreme Court Special Committee for Lawyer Disciplinary Procedures to Amend Integration Rule, Article II & Article XI (373 So. 2d 1, 1979)

Citations

373 So. 2d 1

Full opinion text

PER CURIAM.

This matter is before us to consider major revisions to The Florida Bar Integration Rule, article XI, and amendment to The Florida Bar Integration Rule, article II, section 5(a), which have been proposed by the Supreme Court Special Committee for Lawyer Disciplinary Procedures. Several major policy decisions were made by the committee which are reflected throughout the recommended changes to article XI. The committee recommends that lay persons should be included in the disciplinary process at the grievance committee level; that, for more expeditious handling of cases, a speedy trial rule should be instituted; that the Board of Governors should be taken out of the adjudicatory phase of the disciplinary process and should be involved only as prosecutor; that there should be absolute immunity for complainants in Bar disciplinary proceedings; that confidentiality should be eliminated after probable cause has been determined to exist; that spot audits by in-house auditors should be instituted; that there should be qualification proceedings to deal with incompetent lawyers; and that circuit judges should serve as referees. We approve the committee’s recommendation as they relate to inclusion of lay persons in the disciplinary process, taking the Board of Governors out of the adjudicatory phase of the disciplinary process, use of trial judges as referees, and elimination of confidentiality after probable cause has been determined to exist.

Although we approve a major portion of the committee’s recommendations, we reject the following proposals which are adequately covered by the present rules. We reject proposed rule 11.02(4)(d), dealing with unearned fees and lawyer retainers, providing that money paid to a lawyer for services rendered in the future should not be used until the services are rendered and the fee earned and enumerating exceptions to this rule. Not only do we feel that the situation dealt with by this proposed rule is adequately covered by the present rules, which make it unethical for a lawyer to accept a fee and then fail to do the promised work, but we are also of the opinion that the proposed rule is unworkable. Mechanical application of such a rule seems unfeasible due to the varying circumstances and stages under which a fee is “earned.”

We reject proposed rule 11.02(4)(e), entitled “Staff Auditors and Random Audits,” which provides that The Florida Bar shall retain staff auditors to conduct random audits. We have recently revised the rules with respect to trust accounting so as to require standard procedures and reporting requirements on the part of members of the Bar. See Fla.Bar Integr.Rule, art. XI, rule 11.02(4)(c). Until these new procedures are tested and determined to be wanting, we decline to assume the need for the substantially more restrictive measures proposed by the committee.

We reject the proposed major revision of rule 11.04(3), which eliminates, at the grievance committee level, the accused attorney’s right to confrontation, to cross-examination, to be present during the hearing, and to present evidence although the accused, under the proposed rule, would still have the opportunity to make a statement to the grievance committee in refutation or explanation of the charges. This proposed change was previously rejected by this Court in In the Matter of The Florida Bar, 338 So.2d 205, 207 (Fla.1976), wherein we said:

We do not feel the rights afforded the accused attorney by Rule 11.04(3) should be sacrificed for the mere purpose of expediency in the processing of his charges.

Our ruling upon the proposal to eliminate confidentiality at certain stages of the grievance procedure makes retention of the present safeguards even more essential.

We reject proposed rule 11.10(9), which relates to the employment of suspended or disbarred lawyers and which has the effect of overruling this Court’s holding in The Florida Bar v. Thomson, 310 So.2d 300 (Fla. 1975), granting permission to suspended, disbarred, resigned, or inactive lawyers to be employed by a law firm or professional association to perform services which ethically could be performed by other lay persons. This proposal has been before the Court on several occasions since the Thomson case was decided, and limitations upon such employment have been imposed. See Fla.Bar Integr.Rule, art. XI, rule 11.10(7). No additional information has been supplied to the Court in connection with this proposal which would justify further reconsideration of such a thoroughly considered matter.

Proposed rule 11.12(6)(a), (b), and (c) is likewise rejected as unnecessary. Subsections (a) and (b) give absolute immunity to the complainants and to the disciplinary agents. We deem that participants in a disciplinary proceeding have the same privileges that a person has in a judicial proceeding and that creation of a new status which departs from a well-established body of law is inadvisable. Subsection (c) deals with the granting of immunity from prosecution. This subject is dealt with by our decision in Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla.1978). Further amplification of that decision by rule does not appear to be necessary or advisable.

Proposed rule 11.13(1) establishes a speedy trial rule in disciplinary proceedings. We find that such a speedy trial rule is not necessary at this time since the revisions to article XI, which we approve, are expected to expedite disciplinary matters. Furthermore, it is not clear that application of the speedy trial concept embodied in the Florida Rules of Criminal Procedure to disciplinary proceedings is in the best public interest.

We reject the special committee’s suggestion that rule 11.14, relating to disciplinary proceedings in circuit courts, be eliminated in its entirety. This rule provides a means to discipline attorneys exclusively within the judicial process, totally removed from the organized bar, and should remain in effect.

Finally, we reject in its entirety proposed rule 11.14, which establishes procedures for conducting qualification proceedings against an attorney incapable of practicing law generally or in a particular area of law because of lack of expertise or qualifications or inability to render legal services in a prompt and competent manner. We find present rule 11.01(4) to be adequate for these purposes, particularly in view of the fact that no instances of deficiencies in operating under the existing rule have been brought to our attention.

Having rejected, in their totality, the foregoing proposed changes, we now proceed to those proposed rules which we approve but with some modification.

The suggested amendment to rule 11-03(2), which we modify slightly, eliminates the requirement that a lawyer member of the grievance committee must have been a member of The Florida Bar for not less than five years and provides for lay participation on the grievance committees. The Committee for Lawyer Disciplinary Procedures suggests, and we agree, that nonlaw-yer participation in the disciplinary process is desirable and that this participation should be at the grievance committee level where probable cause is determined. We disagree, however, with the deletion of the requirement from the present rule that each lawyer member of the committees shall have been a member of The Florida Bar for not less than five years. Such experience and maturity in the profession is deemed beneficial to the process. Rule 11.-03(2)(c) is modified to read as follows:

(c) MEMBERSHIP, APPOINTMENT AND ELIGIBILITY. Each grievance committee shall be appointed by the Board of Governors and shall consist of not less than three members, of -T-he Florida Bar, oaeh-of- whom shall have been a mombor of The Florida Bar for not less-than five years. At least one-third of the committee members shall be nonlawvers. All appointees shall be of legal age and shall be residents of the circuit or have their principal office in the circuit. The lawyer members of the committee shall have been members of The Florida Bar for not less than five years.

With the advent of lay participation in grievance committees, The Florida Bar suggests a modification tó rule 11.03(2)(h), concerning quorum vote, which we approve. The rule as modified is as follows:

(h) QUORUM, VOTE. Not less than three members, one of whom must be the chairman or vice-chairman and another of whom must be a lawyer, shall constitute a quorum. All findings of probable cause and recommendations of guilt of minor misconduct shall be made by affirmative vote of a majority of the committee members present, which majority must number at least two members. The number of committee members voting for or against the committee report shall be reflected in the report. Minority reports may be filed.

The proposed revision of rule 11.03(3) contemplates the use .of circuit judges as referees, but additionally provides that members of The Florida Bar with extensive trial experience may be appointed as referees. We find that the use of trial judges, including county judges, as referees will be beneficial to the disciplinary process in that it will provide more uniformity in procedure and reduction in time involved in the trial of cases. In view of the number of trial judges available for service as referees, we conclude that it is unnecessary and complicating to use nonjudicial referees. Accordingly, we modify the proposed amendment to eliminate the language relating to the continuing use of non judicial members of The Florida Bar as referees. We also delete the proposed requirement that the referee shall reside in a different circuit than the respondent. Rule 11.03(3) is amended to read as follows:

(3) REFEREES. The chief justice shall have the power to appoint referees to try disciplinary cases and to delegate to a chief judge of a judicial circuit the power to appoint referees for duty in his respective circuit. Such appointees shall ordinarily be active county or circuit judges, but the chief justice mav appoint retired judges.

After the special committee filed its report with this Court, The Florida Bar staff counsel suggested a change in proposed rule 11.03(9), dealing with court reporters, to include a time period within which the accused or respondent attorney could object to the use of a court reporter who was a full- or part-time employee of The Florida Bar. Agreeing that the time period is desirable, we modify the proposed amendment and adopt rule 11.03(9) as follows: •

(91 COURT REPORTERS. Court reporters who are full- or part-time employees of The Florida Bar mav be appointed to report any disciplinary proceeding. If the accused or respondent attorney objects at least 48 hours in advance of the matter to be recorded. an independent contract reporter mav be retained. Reasonable costs for court reporter service mav be taxed to a respondent or accused for payment to The Florida Bar.

To assure that all complaints get into the system promptly, other than those matters which are based on minor misunderstanding and which may be resolved by the grievance committee to the satisfaction of the complainant, the special committee suggests amendment of rule 11.04(2)(a). For the most part, we agree with the suggested revision of this rule. We do not agree, however, that the grievance committee, having referred a matter to staff counsel for docketing, may not proceed with the matter unless it has been referred back to the committee by staff counsel. The importance of staff counsel’s being informed as to matters referred to grievance committees is undisputed, but the grievance committee should not be limited in its investigation if staff counsel does not recommend investigation. With our modification incorporated into the proposed revision, rule 11.-04(2)(a) shall read as follows:

(a) INVESTIGATION. A grievance committee is required to consider all charges of misconduct forwarded to the committee bv staff counsel whether based upon a written complaint or not. All written charges of misconduct received bv a committee member from a source other than staff counsel shall within 10 days be forwarded to staff counsel for docketing and other appropriate action unless the committee member receiving the complaint satisfies the complainant within the 10-dav period that formal investigation of the complaint is not required. Formal investigation bv a grievance committee mav proceed after the matter has been referred to staff counsel for docketing.

The special committee’s recommended change in rule 11.04(6)(b) states, in part, that the formal complaint shall be signed by a member of the committee who participated in the proceeding. We conclude that this complaint should be signed by the chairman or vice-chairman. Rule 11.-04(6)(b), as set out below, is approved:

(b) FINDINGS OF PROBABLE CAUSE. If a grievance committee finds probable cause, the staff counsel assigned to the committee shall promptly prepare a record of its investigation and a report formal complaint and file the same with the executive director, the report proceedings being filed in duplicate. The formal complaint shall be signed bv the chairman or vice-chairman of the committee who participated in the proceeding. The record and report formal complaint shall be in such form and-with such content as shall be prescribed by the Board of Governors. Such record and report formal complaint shall be reviewed promptly by staff counsel. Should staff counsel question the grievance committee’s finding of — probable cause formal complaint, further proceedings shall be suspended and the matter referred to the Board of Governors, or returned to the grievance committee for further action. Staff counsel may also return a formal complaint to a grievance committee to remedy technical deficiencies in the complaint. When a finding of-probable cause formal complaint by a grievance committee is not referred to the Board of Governors, or returned to the grievance committee for further action, the executive director staff counsel shall furnish a copy of the report formal complaint to the aeeused respondent, and a copy of the record shall be made available to the accused respondent at his expense.

Because we believe that confidentiality should be retained where private reprimands are concerned, the proposed amendment to rule 11.06(5)(d), relating to filing of motions to retain confidential status, is modified to read:

(d) DISPOSITION OF MOTIONS. Hearings upon motions may be deferred until the final hearing; and, whenever heard, rulings thereon may be reserved until termination of the final hearing, but a motion to maintain confidential status for the protection of a client which is filed within 20 days after service of the complaint on the respondent shall be decided before trial and the proceedings shall remain confidential until an order is issued on the motion.

Rule 11.09(3Xf) relates to the judgment of the Supreme Court after review of the referee’s report. The special committee suggests that the language relating to the authority of this Court to require the parties to file briefs or to require oral argument directed to the suitability of the disciplinary measure when no petition for review of the referee’s recommended disciplinary measure had been filed be deleted. We reject this recommended deletion. The proposed amendment to rule 11.09(3)(f) is modified, and the following rule changes are approved:

(f) JUDGMENT OF SUPREME COURT. After review, the Supreme Court shall enter an appropriate order or judgment. If no review is sought of a judgment or report of a referee entered under the rules and filed in the Court, the findings of fact shall be deemed conclusive and the disciplinary measure recommended by the referee shall be the disciplinary measure imposed by the Court, unless the Court directs the parties to submit briefs or oral argument directed to the suitability of the disciplinary measure recommended by the referee. A referee report which becomes final when no review has been timely filed shall be reported in an order of the Supreme Court.

The special committee proposes a major revision of rule 11.12(1), which deals with confidentiality. With the modification requiring the maintaining of confidentiality when a private reprimand has been rejected by the accused attorney and with the rejection of the suggested deletion of subsection (b) relating to circuit court proceedings, rule 11.12(1) is amended to read:

(1) PUBLIC RECORD. Those parts of proceedings prior to the trial which are required to be served upon an accused7 and the record of the prooeedings-as-else-where defined, shall become public information in the following instances:

(a) REQUEST OF ACCUSED OR RESPONDENT. If the accused or respondent shall file in the proceeding a request in writing that the proceedings be made public information.

(b) CIRCUIT COURT. If the proceeding is in a circuit court; but proceedings in contempt of confidential proceedings shall preserve the confidentiality of the disciplinary proceeding as elsewhere provided.

(c) JUDGMENT OF SUSPENSION OR DISBARMENT. Upon entry of a judgment of suspension from practice, disbarment or of public reprimand.

• (d) REVIEW BY SUPREME CQU-R-Tv FILING OF COMPLAINT. Upon the filing of a petition for-review in the manner provided by the rule-governing ■review-fey the-Supreme Court, formal complaint bv staff counsel in the Supreme Court and expiration of the time allowed for the filing of a motion to maintain confidential status as provided in rule 11.06(5)(b). Provided, however, that confidentiality shall be retained in situations where private reprimand is recommended, unless the accused or respondent waives confidentiality as provided bv rule 11.12(l)(a). If a motion is filed pursuant to rule 11.-06(5)(b). the matter shall remain confidential until the motion is ruled upon and thereafter as provided in the order on the motion or as otherwise provided in these rules.

With' the modifications previously discussed and with other modifications not discussed, The Florida Bar Integration Rule, article XI, is readopted as follows:

ARTICLE XI. RULES OF DISCIPLINE

The exclusive jurisdiction of the Supreme Court over the discipline of persons admitted to the practice of law shall be administered in the following manner subject to the supervision and review of the Court.

RULE 11.01: PRINCIPLES AND DEFINITIONS

(1) NOTICE AND KNOWLEDGE OF RULES. Every member of The Florida Bar and every attorney of another state who is admitted to practice for the purpose of a specific case before a court of record of this state under section 2 of article II of the Integration Rule is within the jurisdiction of this Court and its agencies under this rule and is charged with notice and held to know the provisions of this rule and the standards of ethical and professional conduct prescribed by this Court. Jurisdiction over an attorney of another state who is not a member of The Florida Bar shall be limited to his conduct as an attorney in relation to the business for which he was permitted to practice in this state, and his privilege in the future to practice law in the State of Florida.

(2) PROCESS. Every member of The Florida Bar is charged with notice of the provisions of section 6 of article II, relating to change of mailing address or military status, and that mailing by registered or certified mail of papers or notices prescribed in these rules to the last mailing address of an attorney as shown by the official records in the office of the executive director of The Florida Bar shall be sufficient notice and service unless this Court shall direct otherwise. Every attorney of another state who is permitted to practice for the purpose of a specific case before a court of record of this state may be served by registered or certified mail addressed to said attorney in care of the Florida attorney who was associated or appeared with him in the specific case for which the out-of-state attorney was permitted to practice, or addressed to said attorney at any address listed by him in the pleadings in such case.

(3) DEFINITIONS. Wherever used in these rules the following words or terms shall have the meaning herein set forth unless the use thereof shall clearly indicate a different meaning:

(a) The accused or accused attorney: a member of The Florida Bar or an attorney subject to these rules under rule 11.01(11 who has been accused of misconduct or whose conduct is under investigation, but as to which conduct there has been no finding of either probable cause or no probable cause.

(b) Bar counsel: a member of The Florida Bar appointed to represent The Florida Bar in any proceeding under these rules.

(d) Complainant or complaining witness: any person who has complained of the conduct of any member of The Florida Bar to any officer or agency of The Florida Bar.

(e) This Court, or the Court: the Supreme Court of the State of Florida.

(f) Court of this state: a state court authorized and established by the constitution or laws of the State of Florida.

(g) Executive committee: The executive committee of the Board of Governors of The Florida Bar.

(h) Executive director: the executive director of The Florida Bar.

(i) Probable cause: a finding by an authorized agency that there is cause to believe that a member of The Florida Bar is guilty of misconduct justifying disciplinary action.

(j) Referee: a judge or retired judge member of The Flor-ida Bar appointed to conduct proceedings as provided under these rules.

(k) Respondent: a member of The Florida Bar or an attorney subject to these rules under rule 11.01(11 against whom there has been a finding of probable cause.

(1)Staff counsel: an employee of The Florida Bar elsewhere authorized. When used in this rule, the term shall include associate or assistant staff counsel.

(4) PLACEMENT ON INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT. Whenever an attorney who has not been adjudged incompetent is incapable of practicing law because of physical or mental illness, incapacity or other infirmity, he may be placed upon an inactive list and shall refrain from the practice of law for such reason even though no misconduct on his part is alleged or proved. Proceedings with a view of placing an attorney on the inactive list under this section shall be processed under article XI in the same manner as proceedings involving acts of misconduct. A member who has been placed on such inactive list may be readmitted upon application to and approval by the Board of Governors. A rejection of such petition may be reviewed by petition to the Supreme Court.

RULE 11.02: BREACHES OF DISCIPLINE

The following principles, among others expressly adopted by this Court, shall govern the conduct of members of The Florida Bar in their capacity as attorneys and shall govern all proceedings for discipline of such members: a license to practice law confers no vested right to the holder thereof, but is a conditional privilege revocable for cause. The primary purpose of discipline of attorneys is the protection of the public and the administration of justice, as well as protection of the legal profession through the discipline of members of the Bar. It is the responsibility of this Court to purge the Bar of those- unworthy to practice law in this state, and it is the obligation of The Florida Bar and the individual members thereof to give unlimited cooperation and assistance to this Court in the discharge of this responsibility. The Florida Bar is expressly delegated the authority, power, and duty to maintain high ethical standards and to take such proceedings as authorized in these rules to ensure such standards in the Bar of Florida.

(1) OATH. Violation of the oath taken by an attorney 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 the Communist Party or 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 shall be a violation of the oath.

(2) CODE OF ETHICS. Violation of the Code of Professional Responsibility as adopted by article X of the Integration Rule is a cause for discipline.

(3) MORAL CONDUCT.

(a) STANDARDS. The standards of professional conduct to be observed by members of the Bar are not limited to the observance of rules and avoidance of prohibitive acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act contrary to honesty, justice, or good morals, whether the act is committed in the course of his relations as an attorney or otherwise, whether committed within or outside the State of Florida, and whether or not the act is a felony or misdemeanor, constitutes a cause for discipline.

(b) CRIME. If the alleged misconduct constitutes a felony or misdemeanor, The Florida Bar may initiate disciplinary action whether or not the accused attorney has been tried, acquitted, or convicted in a court for the alleged criminal offense; however, the Board of Governors may, in its discretion, withhold prosecution of disciplinary proceedings pending the outcome of criminal proceedings against an accused attorney ^ if-the Board believes that prosecution thereof might tend-to prejudiee-the-accused attorney-in his defense or the state in the presentation of the criminal proceedings.

(4)TRUST FUNDS AND FEES. Money or other property entrusted to an attorney for a specific purpose, including advances for costs and expenses, is held in trust and must be applied only to that purpose. Money and other property of clients coming into the hands of an attorney are not subject to counterclaim or setoff for attorney fees, and refusal to account for and deliver over such property and money upon demand shall be deemed a conversion. This is not to preclude the retention of money or other property upon which the lawyer has a valid lien for services or to preclude the payment of agreed fees from the proceeds of transactions or collections. Controversies as to the amount of fees are not grounds for disciplinary proceedings unless the amount demanded is clearly excessive, extortionate, or the demand is fraudulent.

In a controversy alleging a clearly excessive, extortionate, or fraudulent fee, announced willingness of an attorney to submit a dispute as to the amount of a fee to a competent tribunal for determination may be considered in any determination as to intent or in mitigation of discipline; provided such willingness shall not preclude admission of' any other relevant admissible evidence relating to such controversy, including evidence as to the withholding of funds or property of the client, or to other injury to the client occasioned by such controversy.

(a) TRUST ACCOUNTS REQUIRED. Any bank or savings and loan association account maintained by a member of The Florida Bar to comply with disciplinary rule 9-102 of the Code of Professional Responsibility is and shall be clearly labeled and designated as a trust account. Any safe deposit box used in connection with the practice of law in Florida, maintained by a member of The Florida Bar to comply with said disciplinary rule 9-102, shall be located in this state (unless the client otherwise consents in writing), and the member of The Florida Bar shall advise any institution in which such deposit box is located that the contents of the same may include property of clients.

(b)TRUST ACCOUNTS AS OFFICIAL RECORDS. A member of The Florida Bar shall preserve or cause to be preserved the records of all bank and savings and loan association accounts or other records pertaining to the funds or property of a client maintained by him in compliance with disciplinary rule 9-102 for a period of not less than six years subsequent to the last transaction pertaining to the same or subsequent to the final conclusion of the representation of a client relative to such funds or property, whichever shall last occur. Such records shall include checkbooks, cancelled checks, check stubs, vouchers, ledgers and journals, closing statements, accountings or other statements of disbursements rendered to clients or other parties with regard to trust funds, or similar equivalent records clearly and expressly reflecting the date, amount, source, and reason for all receipts, withdrawals, deliveries, and disbursements of the funds or property of a client. All of such records shall be deemed to be kept pursuant to the Integration Rule of The Florida Bar, as a specific prerequisite to the right to receive, deliver, and disburse funds or property of a client, and to have a public aspect relating to the protection of clients and to fitness of a member of The Florida Bar to practice law. In any instance of an alleged violation by a member of The Florida Bar of this rule 11.02(4) or of any disciplinary rule of the Code of Professional Responsibility, such records insofar as they may relate in any way to the transaction, occurrence, or client in question shall be produced by the member of The Florida Bar for inspection, audit, and copying by a designated representative of The Florida Bar upon the direction of this Court or any judge of this state acting under rule 11.14 or of a grievance committee or of the Board of Governors if acting pursuant to rule 11.-05(2) or of a referee. Such records or copies thereof shall be admissible in evidence in any proceedings under this rule; provided notice of such intended use shall be given to any client involved, if practicable, unless such client is already aware of such intended use, and upon good cause shown by such client the admission of the same shall be under such conditions as shall be reasonably calculated thereafter to protect the confidences of such client in the event that the proceedings otherwise become public records pursuant to rule 11.12. Permissible means of protection shall not prejudice the respondent- or accused attorney and may include but are not limited to excision, in camera production, retention in sealed envelopes, or similar devices. Failure to maintain such records or to produce them upon such direction shall constitute grounds for disciplinary action under the Integration Rule without regard to any other matter. The cost of any audit or investigation necessitated by such failure may be taxed against a respondent.

(c) TRUST ACCOUNTING PROCEDURES. The Florida Bar shall promulgate by-laws under this rule, such by-laws and amendments thereto to be approved by this Court, prescribing minimum trust accounting records which shall be maintained and minimum trust accounting procedures which must be followed by all attorneys practicing in Florida who receive or disburse trust money or property. The minimum procedure shall require reconciliation of trust account balances at periodic intervals and the annual filing of a certificate reflecting compliance with minimum record keeping and procedural requirements. Failure to file the required certificate, the filing of a trust savings account certificate showing noncompliance with the by-laws, or the return of a trust account check for insufficient funds shall be good cause for The Florida Bar to order an audit of the trust account at the cost of the attorney audited. Other audits for cause conducted by The Florida Bar shall be at the cost of the attorney audited unless the audit reveals that the attorney was without fault and that his trust account records and procedures are in substantial compliance with the minimum requirements.

(d) TRUST SAVINGS ACCOUNTS. A member of The Florida Bar who elects to create or maintain a trust savings account shall comply with the following provisions:

(i) A trust savings account may be established with any bank or savings and loan association authorized by federal or state law to do business in Florida and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(ii) Except as otherwise required by law, funds in each trust savings account shall be subject to withdrawal, or to transfer to a trust checking account, upon request and without delay. Any depository institution permitted by law to require advance notification (30 or 60 days) before allowing withdrawal of savings deposits is nonetheless eligible to act as a depository for trust savings accounts under this rule if it meets the requirements of paragraph (i) above, provided the institution has not acted to delay the withdrawal of deposited funds (other than for the clearance of deposited funds or for good cause attributable to the circumstances of the particular depositor rather than the institution’s financial needs or general policy) at any time during the past five years. An otherwise qualified institution which has not been in existence for five full years may serve as a trust savings account depository if it has met the requirements of this subsection throughout its existence.

(iii) An institution shall cease to be eligible for the receipt of trust savings funds at such time as it fails to qualify under paragraphs (i) or (ii). Any lawyer or law firm maintaining a trust savings account against which immediate withdrawal rights are refused shall immediately notify The Florida Bar Foundation, Inc. of the name and address of the depository institution and the date of such refusal.

(iv) If, pursuant to governing law or banking regulations, a depository institution requires notice in writing for an intended withdrawal not less than 30 days before such withdrawal is made, the lawyer or law firm may certify to The Florida Bar Foundation, Inc. that the client’s funds detained as a result of the depository institution’s notification requirement are needed immediately for the client’s affairs.

(A) Upon receiving such certification, the Foundation shall be authorized to advance to the certifying lawyer or law firm, from the interest earned on trust savings accounts, an amount of money necessary to meet the client’s emergency needs subject, however, to limitations expressed in subparagraph (C).

(B) Simultaneously with certification, the lawyer or law firm shall direct the depository institution in writing, with a copy to the Foundation, that upon the expiration of the notification period detained funds equal to the amount advanced by the Foundation shall be remitted directly to the Foundation.

(C) The Board of Directors of the Foundation may adopt rules of procedure reasonably necessary to implement the authority provided in subpar-agraph (A) and to assure full reimbursement of sums advanced. Periodically the Board may set dollar limitations on the amount of money which may be advanced to meet the emergency needs of any client in the event a notification requirement is imposed by a depository institution.

(v) The rate of interest payable on any trust savings account shall not be less than the rate paid by the depository institution to regular, non-attorney savings depositors. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minima, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm so long as there is no impairment of the right to withdraw or transfer principal immediately (except as accounts generally may be subject to statutory notification requirements), even though interest may be sacrificed thereby.

(vi) Lawyers or law firms electing to deposit client funds in a trust savings account shall direct the depository institution:

(A) to remit interest or dividends, as the ease may be, on the average monthly balance in the account, at least quarterly, to The Florida Bar Foundation, Inc.;

(B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of interest applied; and

(C) to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, the average account balance for each month of the period for which the report is made, and any remittances to the Foundation made during that period pursuant to subparagraph (iv)(B). (vii) Lawyers and law firms electing to

deposit client funds in a trust savings account shall transmit to each client for whom trust funds are now held, and to each new client for whom funds are to be held, a copy of the notice reproduced below. The Florida Bar shall print and maintain a supply of this notice, and distribute copies without charge to those who may request them. The Bar’s costs for printing and distribution shall be treated as a cost of administering the program, and shall be reimbursed to the Bar by the Foundation from interest earned on trust accounts.

IMPORTANT NOTICE TO CLIENTS

For your protection, the Florida Supreme Court requires that all funds of a client which are held by an attorney must be deposited in a trust account separate from the attorney’s, and must be kept available for immediate withdrawal. Because most clients’ funds which come into the hands of attorneys' are relatively small in amount or are to be held for relatively short periods of time, it is impractical for attorneys to establish a separate account for each client or to invest each client’s funds to earn interest. For this reason client funds are held in a common trust checking account on which the depository bank pays no interest.

Under a new program approved by the Florida Supreme Court, attorneys are now permitted to deposit clients’ common trust funds in savings accounts. Due to the expense and complexity which would attend any attempt to compute or distribute the interest attributable to each client’s funds, it is not feasible to pay to individual clients the earnings on their proportionate share of common trust savings accounts. Of course, no attorney is permitted to receive the earnings on a client’s funds, either. Rather, under the Supreme Court’s new directive, the interest income from clients’ deposits will be used to fund programs designed to benefit the general public.

The goals of the Court’s program are to improve the administration of justice in this state and to expand the delivery of legal services to the poor.

We have sent you this explanation, at the direction of the Florida Supreme Court, to advise you that we are participating in the court’s new program and that the funds you have entrusted to us for your affairs (other than attorneys’ fees) will be deposited in an interest-bearing trust savings account unless you specifically give us written instructions to the contrary. A directive not to allow such use of your funds will not produce income for you. Your funds will simply be placed in a non-interest-bearing trust checking account until needed.

(e) UNIDENTIFIABLE TRUST FUND ACCUMULATIONS AND TRUST FUNDS HELD FOR MISSING OWNERS. When an attorney’s trust account contains an unidentifiable accumulation of trust funds or property, or trust funds or property held for missing owners, such funds or property shall be so designated. Diligent search and inquiry shall then be made bv the attorney to determine the beneficial owner of anv unidentifiable accumulation or the address of anv missing owner. If the beneficial owner of an unidentified accumulation is determined, the funds shall be properly identified as his trust property. If a missing beneficial owner is located, the trust funds or property shall be paid over or delivered to the beneficial owner if he is then entitled to receive the same. Trust funds and property which remain unidentifiable and funds or property which are held for missing owners after being designated as such may, after diligent search and inquiry fails to identify the beneficial owner or owner’s address, be reported to The Florida Bar with a request that The Florida Bar accept such money or property and hold the same in trust for the missing or unidentified owners and for ultimate disposition as provided in chapter 717, Florida Statutes. If The Florida Bar declines to accept the subject money or property then within one year after the money or property is designated as an unidentified accumulation or being held for missing owners the attorney shall petition the circuit court for declaration of abandoned property as provided in section 717.131, Florida Statutes, and serve a copy of the petition on The Florida Bar.

(5) SOLICITATION. The solicitation of professional employment by advertisement, runners, solicitors, investigators, or in any other manner except as authorized by controlling court decision, the Integration Rule, or the Code of Professional Responsibility shall constitute grounds for disciplinary action. Payment of compensation shall not be a necessary element of proof of solicitation.

(6) DISCIPLINE BY FOREIGN JURISDICTION. A final adjudication by a court or other authorized disciplinary agency of another jurisdiction, state or federal, in a disciplinary proceeding that an attorney licensed to practice in that jurisdiction is guilty of misconduct justifying disciplinary action shall be considered as conclusive proof of such misconduct in a disciplinary proceeding under this rule. In such cases, the adjudication of misconduct shall be sufficient basis for the filing of a complaint by The Florida Bar and assignment for hearing before a referee without a finding of probable cause under these rules.

A member of The Florida Bar disbarred or suspended from the practice of law by a court or other authorized disciplinary agency of another state or by a federal court shall within 30 days after the effective date of disbarment or suspension file with this Court a copy of the order or judgment effecting such disbarment or suspension.

RULE 11.03: DISCIPLINARY AGENCIES

The jurisdiction of the Supreme Court shall be administered in the manner hereinafter stated. The following entities are hereby designated as agencies of the Supreme Court for this purpose and with the following responsibilities, jurisdiction, and powers:

(1) THE BOARD OF GOVERNORS OF THE FLORIDA BAR. The Board of Governors of The Florida Bar is assigned the responsibility of maintaining high ethical standards among all its members. The Board of Governors of The Florida Bar shall supervise and conduct disciplinary proceedings in accordance with the provisions of these rules and by-laws of The Florida Bar not inconsistent with these rules.

(a) EXECUTIVE COMMITTEE. All acts and discretion required by the Board of Governors under these rules of discipline may be exercised by its executive committee between meetings of the Board of Governors as may from time to time be authorized by standing Board of Governors’ policies.

(b) EXECUTIVE DIRECTOR. All matters to be filed with or served upon the Board of Governors shall be addressed to the Board of Governors and filed with the executive director. The executive director shall be the custodian of the official records of The Florida Bar.

(2) GRIEVANCE COMMITTEES. There shall be such grievance committees as are herein provided, each of which shall have the authority and jurisdiction required to perform the functions hereinafter assigned to it and which shall be constituted and appointed as follows:

(a) CIRCUIT GRIEVANCE COMMITTEES. There shall be not less than one grievance committee in each judicial circuit of this state and as many more in each judicial circuit as shall be found desirable by the Board of Governors. Such committees shall be designated as Judicial Circuit Grievance Committees, and in circuits having more than one committee they shall be identified by alphabetical designation in the order of creation such as “First Judicial Circuit Grievance Committee ‘A’,” “First Judicial Circuit Grievance Committee ‘B’,” and so forth. Such committees shall be continuing bodies, notwithstanding changes in membership, and they shall have jurisdiction and the power to proceed in all matters properly before them.

(b) SPECIAL GRIEVANCE COMMITTEES. The Board of Governors may from time to time appoint special grievance committees for the purpose of such investigations as may be assigned in accordance with these rules. Such committees shall continue only until the completion of tasks assigned, and they shall have jurisdiction and power to proceed in all matters so assigned to them. All provisions concerning grievance committees shall be applicable to special grievance committees except those concerning terms of office and other restrictions thereon as may be imposed by the Board of Governors. Any vacancies occurring in such a committee shall be filled by the Board of Governors, and such changes in members shall not affect the jurisdiction and power of the committee to proceed in all matters properly before it.

(c) MEMBERSHIP, APPOINTMENT AND ELIGIBILITY. Each grievance committee shall be appointed by the Board of Governors and shall consist of not less than three members, of — T-he Florida Bar, each of whom shall have-been a member — of--The Florida Bar for not loss than five years. At least one-third of the committee members shall be nonlawvers. All appointees shall be of legal age and shall be residents of the circuit or have their principal office in the circuit. The lawyer members of the committee shall have been members of The Florida Bar for not less than five years.

(d) TERMS. The terms of the members shall begin on the first day of July and shall end on the next succeeding 30th day of June or until such time as their successors are appointed and qualified. Continuous service of a member shall not exceed three years, nor shall any member be reappointed for a period of three years after the end of his term; provided, however, the expiration of the term of any member shall not disqualify such member from concluding any investigation then pending before him. The-limitation-on--continuous-ser-vice-shall be-applicable to terms commencing- after June-30r 1970.

(e) OFFICERS. There shall be a chairman designated by the Board of Governors and a vice-chairman and secretary designated by the chairman of each committee. The chairman and vice-chairman shall be members of The Florida Bar.

(f) OATH. Each new member of a committee shall subscribe to an oath to fulfill the duties of his office. ' Such oaths shall be filed with the executive director and placed with the official records of The Florida Bar.

(g) REMOVAL. Any member may be removed from his office by the Board of Governors.

(3) REFEREES. — The-Board of-Governors shall annually or as often as necessary reeommend members of The Florida Bar to this-court-to-act as referees in disciplinary proceedings. — This court will certify-annually or as often as neeessary-a-panel-of those Supreme-Court, district court of- appeal- and circuit-judges- shall-be eligible, -with-their consen-V-to-serve as referee.

(4) STAFF COUNSEL. The Board of Governors may employ staff counsel and assistant staff counsel for The Florida Bar to perform such duties under the direction of the executive director as may be assigned.

(5) BAR COUNSEL. The Board of Governors from time to time Staff counsel shall mav designate a panel or panels of members of The Florida Bar to serve as bar counsel to represent The Florida Bar in such disciplinary proceedings, as the Board of Governors may direct. Bar counsel shall not be a member of the Board of GovernorsT or of a grievance committee or a member of the panel of roforoes, except that a member of the Board of Governors may represent The Florida Bar on any review proceeding under rule 11.09. Bar counsel mav be compensated in accordance with budgetary policies adopted bv the Board of Governors.

(6) JURISDICTION AND POWERS. The Board of Governors, grievance committees, and referees have such jurisdiction and powers as are necessary to conduct the proper and speedy disposition of any investigation or cause, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of witnesses and to order the production of books, records or other documentary evidence. Each member of such agencies has power to administer oaths and affirmations to witnesses in any matter within the jurisdiction of the agency.

(7) DISQUALIFICATION AS TRIER AND ATTORNEY FOR RESPONDENT. No member or former member of the Board of Governors and no employee or former employee of The Florida Bar shall represent any party other than The Florida Bar in proceedings provided for in these rules until at least three years from the date of expiration of the term for which he was appointed or elected or subsequent to the date of the termination of his employment; nor shall any member or former member of any grievance committee represent an accused attorney or act as referee in any such proceeding during the term for which he was appointed and for one year thereafter; nor in any case shall a member or former member of a grievance committee or a referee represent an accused attorney or act as bar counsel in any proceeding investigated or heard to any extent before him in such offices.

(8)STAFF COUNSEL AND GRIEVANCE COMMITTEE CHAIRMAN DETERMINATIONS OF NO PROBABLE CAUSE. If staff counsel and a grievance committee chairman concur in a finding of no probable cause the complaint may be closed on such finding without reference to a grievance committee.

(91 COURT REPORTERS. Court reporters who are full- or part-time employees of The Florida Bar mav be appointed to report anv disciplinary proceeding. If the accused or respondent attorney objects at least 48 hours in advance of the matter to be recorded. an independent contract reporter mav be retained. Reasonable costs for court reporter service mav be taxed to a respondent or accused for payment to The Florida Bar.

RULE 11.04: GRIEVANCE COMMITTEE FUNCTION AND PROCEDURE

(1) PURPOSE. The purpose and function of a grievance committee is to conduct investigations of alleged misconduct of a member of The Florida Bar justifying disciplinary action and to determine whether or not to make a finding of probable cause. A grievance committee may recommend discipline for minor misconduct.

(2) PROCEEDINGS.

(a) INVESTIGATION. A grievance committee is required to consider all charges of misconduct forwarded to the committee bv staff counsel whether based upon a written complaint or not. All written charges of misconduct received bv a committee member from a source other than staff counsel shall within 10 days be forwarded to staff counsel for docketing and other appropriate action unless the committee member receiving the complaint satisfies the complainant within the 10-day period that formal investigation of the complaint is not required. Formal inveatigation bv a grievance committee mav proceed after the matter haa been referred to staff counsel for docketing.

(b) NONADVERSARY. The proceedings of such grievance committees may be informal and shall not assume the character of an adversary proceeding. The committee shall not be bound by the rules of evidence.

(c) NO DELAY FOR CIVIL OR CRIMINAL PROCEEDINGS. An investigation shall not be deferred or suspended without the approval of the Board of Governors even though the accused is made a party of civil litigation or is a defendant or is acquitted in a criminal action, notwithstanding that either of such proceedings involves the subject matter of the investigation. The acquittal of an accused in a criminal proceeding shall not necessarily be a bar to disciplinary proceedings nor shall the findings, judgment, or decree of any court in civil proceedings necessarily be binding in disciplinary proceedings.

(d) MEETINGS. Grievance committees shall meet at regularly scheduled times, not less frequently than quarterly each year, and either the chairman or secretary vice-chairman may call special meetings.

(e) BAR COUNSEL. — A grievance committee-may - request the -president ■ of — The Florida Bar to appoint-bar-counsel at any stage of-am-investigation to-assist-the-grievance committee.

(e) COUNSEL AND INVESTIGATORS. Upon request of a grievance committee. staff counsel mav appoint a bar counsel or an investigator to assist the committee in an investigation. Staff counsel shall assist each grievance committee in carrying out its investigative and administrative duties and shall prepare status reports for the committee, notify complainants and accused attorneys of committee actions as appropriate. and prepare all reports reflecting committee findings of probable cause, no probable cause, recommended discipline for minor misconduct, and admonishments after no probable cause findings.

(3) THE ACCUSED. The accused attorney may be required to testify and to produce evidence as any other witness unless he claims a privilege or right properly available to him under applicable federal or state law, and when so required he may be accompanied by counsel. Before any finding of probable cause or private reprimand is made, the accused shall be advised in general terms the nature of the conduct which is being investigated, and he shall be given an opportunity to make a statement personally or by counsel, verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct. Unless found to be impractical by the chairman of the grievance committee due to unreasonable delay or other good cause, the accused shall be granted the right to be present at any grievance committee hearing when evidence is to be presented to the committee, to face his accuser, to call witnesses, and to cross-examine, subject to reasonable limitation.

(4) TESTIMONY OF WITNESSES; CONTEMPT. Unless he claims a privilege or right properly available to him under applicable law, the accused attorney or any other person who is subpoenaed to appear and give testimony or produce books, papers, or documents, and who refuses to appear or produce such books, papers, or documents, before the grievance committee or who, having been duly sworn to testify, refuses to answer any proper question, may be cited for contempt of this Court. Any contempt proceedings instituted or prosecuted during the progress of an investigation or trial covered by the confidential rule shall be conducted in a manner consistent with such rule and shall not be made public except under conditions prescribed in such rule.

(5) COMPLAINANT OR COMPLAINING WITNESS. The complainant or complaining witness is not a party to the disciplinary proceeding and shall have no right to be present during the grievance committee proceedings except when called to give evidence and, when so called, may be accompanied by counsel. Neither the complainant nor his counsel shall have the right of confrontation or cross-examination of the accused or any other witness. Neither unwillingness or neglect of the complaining witness to cooperate, nor settlement, compromise, or restitution will excuse the completion of an investigation. The complaining witness shall have no right of appeal.

(6) RECORD AND REPORT OF GRIEVANCE COMMITTEE.

(a) NO FINDING OF PROBABLE CAUSE. If a grievance committee, upon termination of its investigation, does not find probable cause, the committee shall dispose of its file in the manner directed by the Board of Governors. If the grievance committee has notified the accused of the investigation, then the committee shall notify the accused of the action of the committee. The failure of a grievance committee to find probable cause shall not preclude further proceedings. A committee mav admonish an accused attorney to improve a particular aspect of his practice even though no ethical violation has been found. An admonishment does not constitute a disciplinary record against an attorney and is not subject to appeal by the admonished attorney.

(b) FINDINGS OF PROBABLE CAUSE. If a grievance committee finds probable cause, the staff counsel assigned to the committee shall promptly prepare a record of its investigation and a roport formal complaint and file the same with the executive director, the report proceedings being filed in duplicate. The formal complaint shall be signed by the chairman or vice-chairman of the committee who participated in the proceeding. The record and report formal complaint shall be in such form and with sueh-content as shall be prescribed by the Board of Governors. Such record and report formal complaint shall be reviewed promptly by staff counsel. Should staff counsel question the grievance committee’s finding of probable cause formal complaint, further proceedings shall be suspended and the matter referred to the Board of Governors, or returned — to-the grievance committee -for furthor action. Staff counsel mav also return a formal complaint to a grievance committee to remedy technical deficiencies in the complaint. When a finding of probable cause formal complaint by a grievance committee is not referred to the Board of Governors or returned to the grievance committee for further action, the executive director staff counsel shall furnish a copy of the report formal complaint to the accused respondent, and a copy of the record shall be made available to the aceused respondent at his expense.

(c)DISCIPLINE OF MINOR MISCONDUCT.

(i) If a grievance committee finds an accused guilty of minor misconduct or if an accused shall admit his guilt of minor misconduct by a writing filed with a grievance committee, the grievance committee may enter recommend an order providing for a private reprimand and for the taxing of costs against him. The report ordering recommending a private reprimand shall be forwarded through a Board of Governors member for-the circuit to staff counsel for review. If staff counsel does not return the report to the grievance committee to remedy a defect therein, he shall present the same to the Board of Governors or executive committee with his recommendations. If the report of a grievance committee imposing recommending a private reprimand is approved by the Board of Governors or executive committee, the report shall then be served on the accused by the executive director or staff counsel. The order of private reprimand shall become final unless rejected by the accused attorney within fifteen days after service upon him. If rejected by the accused, the report shall be referred to bar counsel and referee for trial on complaint to be prepared by bar staff counsel as in the case of a finding of probable cause. The Board of Governors mav order an accused attorney to appear before the board for administration of a private reprimand.

(ii) Minor misconduct for which a recommendation of a private reprimand by — a grievance-committee might be appropriate is a relativ