In re Amendments to the Rules Regulating the Florida Bar (167 So. 3d 412, 2015)

PER CURIAM.

This matter is before the Court on the petition of The Florida Bar proposing amendments to the Rules Regulating the Florida Bar (Bar Rules). See R. Regulating Fla. Bar 1-12.1. We have jurisdiction. See art. V, § 15, Fla. Const.

The Bar’s petition in this case proposes amendments to the following Bar Rules: 1-3.3 (Official Bar Name and Contact Information); 1-3.7 (Reinstatement to Membership); 3-5.1 (Types of Discipline; Generally); 3-5.2 (Emergency Suspension and Interim Probation or Interim Placement on the Inactive List for Incapacity not Related to Misconduct); 3-5.3 (Diversion of Disciplinary Cases to Practice and Professionalism Enhancement Programs); 3-7.10 (Reinstatement and Readmission Procedures); 4-1.6 (Confidentiality of Information); 4-1.17 (Sale of Law Practice); 4-5.3 (Responsibilities Regarding Nonlawyer Assistants); 5-1.1 (Trust Accounts); 5-1.2 (Trust Accounting Records and Procedures); 6-12.3 (Requirement); and 10-7.2 (Proceedings for Indirect Criminal Contempt). The proposals were approved by the Board of Governors, and formal notice of the proposed amendments was published in The Florida Bar News. The notice directed interested persons to file their comments directly with the Court. The Court did not receive any comments.

After fully considering the Bar’s petition, we adopt most of the proposed rule amendments. However, as addressed in this opinion, we do not adopt portions of the proposed amendment to Bar Rule 3-5.1(h) (Types of Discipline; Generally; Notice to Clients), nor do we adopt the amendments to Bar Rule 5-1.2 (Trust Accounting Records and Procedures), subdivisions (d)(5) (Minimum Trust Accounting Procedures) and (g)(1) (Audits), Additionally, the Court, on its own motion, amends Bar Rule 3-7.9 (Consent Judgment). We discuss the more significant amendments in this case below.

First, in Bar Rule 3-5.1 (Types of Discipline; Generally), subdivision (e) (Suspension) is amended, as proposed by the Bar, to delete existing language in the rule providing that a lawyer may be suspended for an indefinite period of time, and to instead provide that a lawyer may be suspended for a specified period or until further' order of this Court. Additionally, subdivision (h) (Notice to Clients) is amended to require a lawyer, upon being served with a notice of disbarment, disbarment on consent, disciplinary revocation, suspension, emergency suspension, emergency probation, or placement on the inactive list for incapacity not related to misconduct, to provide a copy of the Court’s order imposing the discipline on all state, federal, or administrative bars of which the respondent is a member. Subdivision (j) (Restitution) is amended to require a lawyer to provide the Bar with telephone numbers and current addresses for all individuals or entities to whom the lawyer is ordered to pay restitution.

The Bar also proposes amending Bar Rule 3-5.1(h) to provide that when a lawyer begins serving a required period of suspension before the issuance of an order from this Court approving the suspension, the lawyer must furnish a copy of the Court’s order, or notice of commencement of the suspension, to all of the lawyer’s clients, opposing and co-counsel, and all courts, tribunals, or adjudicative agencies before which the lawyer is counsel of record. The Bar’s proposed amendment is made in response to the Court’s decision in Florida Bar v. Townsend, 145 So.3d 775 (Fla.2014), where the respondent, acting pursuant to a consent judgment with the Bar, began and completed serving his full thirty-day suspension before the Court issued an order approving the suspension; because the “triggering” date in Bar Rule 3-5.1(h) for determining which clients, lawyers, and courts should be notified of the suspension was the date the respondent is served with the Court’s order imposing the discipline, the respondent in Townsend was not required to notify any clients, lawyers, or courts of the thirty-day suspension until after he completed serving it. After considering the Bar’s proposal to amend Bar Rule 3-5.1(h) in order to address this issue, we decline .to adopt the proposed amendment. Consent judgments between a respondent and the Bar are not final until this Court issues an order approving the judgment. See R. Regulating Fla. Bar 3-7.9(c). Accordingly, we conclude that a better practice in cases involving a conditional plea and consent judgment entered into between the Bar and a respondent is that the consent judgment may not permit the respondent to begin serving a period of suspension or disbarment until this Court issues an order approving the discipline. Thus, the Court, on its own motion, amends Bar Rule 3-7.9(d) (Consent Judgment; Content of Conditional Pleas) to prohibit this practice.

Next, Bar Rule 3-5.2 (Emergency Suspension and Interim Probation or Interim Placement on the Inactive List for Incapacity not Related to Misconduct), is amended, as proposed by the Bar, to outline new procedures authorizing referees to determine entitlement to, and to oversee disbursement of, funds frozen in a lawyer’s trust account pursuant to an emergency suspension or interim probation order. These new procedures are described in several subdivisions. Subdivision (c) (Trust Accounts) will provide that, upon an order of emergency suspension or probation that restricts a lawyer’s access to his or her trust account, Bar counsel will serve a copy of the order freezing the trust account on all banks where the lawyer maintains a trust account. The suspension or probation order will serve as an injunction to prevent the bank from allowing further payments from the trust account except in accordance with restrictions imposed by the court through subsequent orders issued by a court-appointed referee. Additionally, new subdivision (c)(1) provides that the Court’s order appointing a referee in a case involving an emergency suspension or probation may authorize the referee to determine entitlement to funds in a frozen trust account. Any client or third party requesting release of frozen funds must file a written petition with the referee, along with proof of entitlement to the funds. Under new subdivision (c)(2), Bar counsel and Bar auditors are also required to provide any information to the referee, collected during a Bar audit, identifying persons who may be entitled to trust account funds. Bar staff will then send written notice to each of these persons making them aware of their possible interest in the trust account money; the notice will include a copy of a form “Petition Requesting Release of Frozen Trust Account Funds,” as well as instructions for completing the petition. The Bar will also publish a notice in the local newspaper informing the public that the lawyer’s trust account has been frozen, and instructing those with possible claims on the funds to contact the Bar. In some circumstances, the referee will be authorized to appoint a receiver, paid from the corpus of the trust account funds, to determine those who are rightfully entitled to the money.

New subdivision (d) (Referee Review of Frozen Trust Account Petitions) of Bar Rule 3-5.2, provides that the referee, after reviewing the Bar’s audit report, the trust account records, any petitions filed by interested persons, or any recommendations from an appointed receiver, will determine when and how to pay the claim of any person asserting an entitlement to funds in the frozen trust account. The referee may hold a hearing on the matter. Significantly, subchapter 3-7 (Procedures) will not apply to this proceeding — no pleadings will be filed, only petitions requesting release of trust account funds; the parties will be only those persons filing a petition requesting release of funds, and will not include the Bar; and the referee’s order will be treated as a final order unless one of the parties petitions for review in this Court. The referee will determine the percentage of monies missing from the trust account and the amounts owed to the parties, and will implement a “pro rata distribution” of funds if there is not sufficient money in the account to pay all of the claims in full. The parties may file a petition for review within 60 days of the referee’s final order.

New subdivision (e) (Separate Funds in Frozen Trust Accounts) of Bar Rule 3-5.2 is also adopted to direct the referee to order the return of any “separate funds” to the rightful owner of those funds. Separate funds are defined as monies deposited into the lawyer’s trust account after the misappropriation took place, which are not affected by the misappropriation, and funds that have been placed into a separate segregated individual trust account under the individual client’s tax identification number.

Next, we amend Bar Rule 3-5.3 (Diversion of Disciplinary Cases to Practice and Professionalism Enhancement Programs) to provide that a lawyer is not eligible for diversion to a practice and professionalism enhancement program if he or she has been the subject of a prior diversionary program for the same type of rule violation ■within the past five years (rather than seven years). A lawyer who has been the subject of a prior diversion for one type of rule violation, and is alleged to have violated a completely different type of rule at least one year after the initial diversion, would be eligible to attend a diversionary program.

We make several amendments to Bar Rule 3-7.10 (Reinstatement and Readmission Procedures), as proposed by the Bar. The most notable of these is subdivision (b) (Petitions; Form and Contents), which is amended to provide that a petition for reinstatement to Bar membership may not be filed until the petitioner has completed at least 80 percent of his or her suspension. We also amend Bar Rule 3-7.10 to require: that a petition for reinstatement be filed with the Court in compliance with the filing requirements in the Florida Rules of Civil Procedure and the Florida Rules of Judicial Administration; and that a petition for reinstatement filed by a petitioner who has been ineligible to practice for more than five years, and who is consequently required to retake the Florida Bar Examination and the Multistate Professional Responsibility Examination, must provide proof in the petition that the petitioner has passed both exams.

Bar Rule 4-1.6 (Confidentiality of Information) is amended to authorize a lawyer to reveal confidential information in order to detect and resolve conflicts of interest between lawyers in different firms, which may arise when lawyers change employment or change the composition or ownership of a firm, provided that the revealed information would not compromise the attorney-client privilege or prejudice the client. This amendment is consistent with recent changes to the American Bar Association’s model rules. Rule 4-1.6 is also amended to provide that, as technology continues to evolve, lawyers must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential information relating to the representation of a client.

Bar Rule 5-1.1 (Trust Accounts) is amended to add new language authorizing a lawyer to deposit his or her own personal funds into the trust account to address a shortage in the account. However, any deposits made by the lawyer to cover trust account shortages must be no more than is needed to cover the shortage (and may be less). If a lawyer does deposit personal funds to cover a shortage, the lawyer must immediately notify the Bar’s lawyer regulation department, and identify the cause of the shortage and the amount deposited into the account to cover it. This amendment is intended to encourage lawyers to take action to identify and replenish shortages in their trust accounts (whether the shortage is caused by misappropriation or error) without risking further disciplinary action for commingling funds, and the Bar states that the rule is consistent with rules governing lawyer conduct in several other states. We emphasize, however, that the lawyer must immediately notify the Bar of any shortage in the trust account and any money deposited to correct the shortage, so that the Bar can investigate whether any ethical violations occurred and take the appropriate actions necessary to protect the public.

In Bar Rule 5-1.2 (Trust Accounting Records and Procedures), the Bar proposes amendments to subdivision (d)(5) (Minimum Trust Accounting Procedures), and a corresponding amendment to subdivision (g)(1) (Audits) to remove the current requirement that lawyers must file with the Bar every year a certificate of compliance with the trust accounting rules. The Bar indicates that a “significant minority” of Bar members currently do not file the yearly trust account certificates, and that this has led to inconsistent discipline for lawyers who engage in minor trust accounting violations — sometimes resulting in harsher discipline for lawyers who did submit a yearly trust account certificate than for those who did not. Nonetheless, we do not adopt these amendments to rule 5-1.2. We believe that the requirement that lawyers submit a yearly trust account certificate is an important and useful tool in ensuring that lawyers are aware of the trust accounting requirements, and that they affirm their compliance with those requirements. Accordingly, we take this opportunity to make clear that, as required in Bar Rule 5 — 1.2(d)(5), every member of The Florida Bar must file each year a trust accounting certificate showing his or her compliance with the trust accounting rules. The failure to file the trust accounting certificate will result in the lawyer being deemed delinquent and ineligible to practice.

We do amend Bar Rule 5-1.2, subdivision (f) (Record Retention), as proposed by the Bar to state that, on the dissolution of a law firm or on the sale of a law practice, the partners or the seller of the practice shall make reasonable arrangements for the maintenance and retention of trust account records.

Finally, we amend Bar Rule 6-12.3 (Basic Skills Course Requirement Rule; Requirement), as proposed by the Bar, to remove the requirement that lawyers newly admitted to the practice of law must attend the Practicing with Professionalism program in person. Instead, the Young Lawyers Division of the Bar may develop a program to allow these newly-admitted lawyers to attend the course electronically.

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The comments are offered for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective on October 1, 2015, at 12:01 a.m.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

RULE 1-3.3 OFFICIAL BAR NAME AND CONTACT INFORMATION

(a) Designation. Each member of The Florida Bar shalimust designate an official bar name, mailing address, business telephone number, and business e-mail address, if the-member has--one. If the physical location or street address is not the principal place of employment, the member must also provide an address for the principal place of employment. The Florida Bar may excuse a bar member from the requirement of providing an email address if the bar member has been excused by the court from e-service or the bar member demonstrates that the bar member has no e-mail account and lacks Internet service at the bar member’s office.

(b) Changes. Each member shalimust promptly notify the executive director of any changes in any information required by this rule. The official bar name of each member of The Florida Bar shalimust be used in the course of the member’s practice of law. Members may change their official bar name by sending a request to the Supreme Court of Florida. The court must approve all official bar name changes.

RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP

(a) [No Change]

(b) Petitions Required. A member seeking reinstatement must file a petition with the executive director setting forth the reason for inactive status, retirement, or delinquency and showing good cause why the petition for reinstatement should be granted. The petitioner must beinclude all required information on a form approved by the board of governors and the petitioner-will-furnish such information on such-form-as-the board of governors may require. The petition must be accompanied by a nonrefundable reinstatement fee of $150 and payment of all arrearages unless adjusted by the executive director with concurrence of the executive committee for good cause shown. Inactive members are not required to pay the reinstatement fee. No member will be reinstated if, from the petition or from investigation conducted, the petitioner is not of good moral character and morally fit to practice law or if the member is delinquent with the continuing legal education or basic skills course requirements.

If the executive director is in doubt as to approval of a petition the executive director may refer the petition to the board of governors for its action. Action of the executive director or board of governors denying a petition for reinstatement may be reviewed upon petition to the Supreme Court of Florida.

(c) Members Who Have Retired or Been Delinquent for Less Than 5 Years, But More Than 3 Years. Members who have retired or been delinquent for less than 5 years, but more than 3 years, must have completed 10 hours of continuing legal education courses for each year or portion of a year that the member had retired or was deemed delinquent.

(d) Members Who Have Retired or Been Delinquent for 5 Years or More. Members who have retired or have been deemed delinquent for a period of 5 years or longer will not be reinstated under this rule and must be readmitted upon application to and approval by the Florida Board of Bar Examiners and approval by the Supreme Court of Florida.

(e) [No Change]

(f) Members Delinquent 60 Days or Less. Reinstatement from membership fees-delinquency for payment of membership fees or completion of continuing legal education or basic skills course requirements accomplishedapproved within 60 days from the date of delinquency relates back to the datéis effective on the last business day before the delinquency. Any member reinstated within the 60-day period is not subject to disciplinary sanction for practicing law in Florida during that time.

(g) [No Change]

RULE 3-5.1 GENERALLY

A judgment entered, finding a member of The Florida Bar guilty of misconduct, shallwill include ©sel or more of the following disciplinary measures:

(a) Admonishments. A Supreme Court of Florida order finding minor misconduct and adjudging an admonishment may direct the respondent to appear before the Supreme Court of Florida, the board of governors, grievance committee, or the referee for administration of the admonishment. A grievance committee report and finding of minor misconduct or the board of governors, upon review of suehthe report, may direct the respondent to appear before the board of governors or the grievance committee for administration of the admonishment. A memorandum of administration of an admonishment shall thereaf-terwill be made a part of the record of the proceeding after the admonishment is administered.

(b) Minor Misconduct. Minor misconduct is the only type of misconduct for which an admonishment is an appropriate disciplinary sanction.

(1) Criteria. In the absence of unusual circumstances misconduct shaliwill not be regarded as minor if any of the following conditions exist:

(A) — (F) [No Change]

(2) Discretion of Grievance Committee. ■Despite the presence of 1-or — more of the criteria described in subdivision (1) above, &A grievance committee may recommend an admonishment for minor misconduct or diversion to a practice and professionalism enhancement program when unusual circumstances are present, despite the presence of 1 or more of the criteria described in subpart (1) of this rule. When the grievance committee recommends an admonishment for minor misconduct or diversion to a practice and professionalism enhancement program under suefathese circumstances, its report shaliwill contain a detailed explanation of the circumstances giving rise to the committee’s recommendation.

(3) Recommendation of Minor Misconduct. If a grievance committee finds the respondent guilty of minor misconduct or if the respondent shall-admits guilt of minor misconduct and the committee concurs, the grievance committee shaliwill file its report recommending an admonishment, the manner of administration, the taxing of costs, and an assessment or administrative fee in the amount of $1,250 against the respondent. The report recommending an admonishment shaliwill be forwarded to staff counsel and the designated reviewer for review. If staff counsel does not return the report to the grievance committee to remedy a defect therein the report, or if the report is not referred to the disciplinary review committee by the designated reviewer [as provided in rule 3-7.5(b) ], the report shaliwill then be served on the respondent by bar counsel. The report and finding of minor misconduct shalh-becomes final unless rejected by the respondent within 15 days after service of the report. If rejected by the respondent, the report shaliwill be referred to bar counsel and referee for trial on complaint of minor misconduct to be prepared by bar counsel as in the case of a finding of probable cause. If the report of minor misconduct is not rejected by the respondent, notice of the finding of minor misconduct shaliwill be given, in writing, to the complainant.

(4) Rejection of Minor Misconduct Reports. The rejection by the board of governors of a grievance committee report of minor misconduct, without dismissal of the case, or remand to the grievance committee, shall befe deemed a finding of probable cause. The rejection of sucha report by a respondent shall-bete deemed a finding of probable cause for minor misconduct. UponAt trial before a referee following rejection by a respondent of a report of minor misconduct, the referee may recommend any discipline authorized under these rules.

(5) Admission of Minor Misconduct. Within 15 days after a finding of probable cause by a grievance committee, aA respondent may tender a written admission of minor misconduct to bar counsel or to the grievance committee within 15 days after a finding of probable cause by a grievance committee. An admission of minor misconduct may be conditioned upon acceptance by the grievance committee, but the respondent may not condition the admission of minor misconduct upon the method of administration of the admonishment or upon nonpayment of costs incurred in the proceedings. Suehr-aAn admission may be tendered after a finding of probable cause (but before the filing of a complaint) only if such an admission has not been previously tendered. If the admission is tendered after a finding of probable cause, the grievance committee may consider suehthe admission without further evidentiary hearing and may either reject the admission, thereby affirming its prior action, or accept the admission and issue its report of minor misconduct. If a respondent’s admission is accepted by the grievance committee, the respondent may not thereafterlater reject a report of the committee recommending an admonishment for minor misconduct. If the admission of minor misconduct is rejected, suehthe admission sfaallmay not be considered or used against the respondent in subsequent proceedings.

(c) Probation. The respondent may be placed on probation for a stated period of time of not less than 6 months nor more than 5 years or for an indefinite period determined by conditions stated in the order. The judgment shallwill state the conditions of the probation, which may include but are not limited to the following:

(1) — (2) [No Change]

(3) the-making ofrequired reportsing to a designated agency;

(4) the — satisfactory completion of a course of study or a paper on legal ethics approved by the Supreme Court of Florida;

(5) such-supervision over fees and trust accounts as the court may directs; or

(6) [No Change]

The respondent will reimburse the bar for the costs of supervision. Upon failure of a respondent to comply with-the- conditions of the probation or a finding of probable-cause as to conduct of the-respondent committed during the period of probation, tThe respondent may be punished for contempt on petition by The Florida Bar, as provided elsewhere in these Rules Regulating The Florida Bar7, on failure of a respondent to comply with the conditions of the probation or a finding of probable cause as to conduct of the respondent committed during the period of probation. An order of the court imposing sanctions for contempt under this rule may also terminate the probation previously imposed.

(d) Public Reprimand. A public reprimand shallwill be administered in the manner prescribed in the judgment but all such reprimands shallwill be reported in the Southern Reporter. Due notice shall-will be given-to- the respondent of any proceeding set to administer the reprimand. The respondent shallmust appear personally before the Supreme Court of Florida, the board of governors, any judge designated to administer the reprimand, or the referee, if required, and snehthis appearance shallwill be made a part of the record of the proceeding.

(e) Suspension. The respondent may be suspended from the practice of law for a definite period of time or -an indefinite period-thereafter -to be determined by the conditions imposed by the judgment or order or until further order of the court. During suehthis suspension the respondent shall — continues to be a member of The Florida Bar but without the privilege of practicing. A suspension of 90 days or less shalldoes not require proof of rehabilitation or passage of the Florida bar examination and the respondent shallwill become eligible for all privileges of members of The Florida Bar upon the expiration of the period of suspension. A suspension of more than 90 days shall--requires proof of rehabilitation and may require passage of all or part of the Florida bar examination and the respondent shaliwill not become eligible for all privileges of members of The Florida Bar until the court enters an order reinstating the respondent to membership in The Florida Bar. No suspension shaliwill be ordered for a specific period of time in excess-ofmore than 3 years.

Unless waived or modified by the court on motion of the respondent showing good cause, aAn order or opinion imposing a suspension of 90 days or less shaliwill include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until the end of the term of the suspension and shaliwill provide that the suspension is effective 80 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients-, unless the court orders otherwise.

Unless waived or modified by the court on motion of the-respondent showing good cause,-aAn order or opinion imposing a suspension of more than 90 days shaliwill include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until the date of the court’s order of reinstatement and shaliwill provide that the suspension is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients*, unless the court orders otherwise.

(f)Disbarment. A judgment of disbarment terminates the respondent’s status as a member of the bar. Permanent disbarment shalb-precludes readmission. A former member who has not been permanently disbarred may only be admitted again upon full compliance with the rules and regulations governing admission to the bar. Except as might-be-otherwise provided in these rules, no application for readmission may be tendered within 5 years after the date of disbarment or su-cha longer period asordered by the court might deter-miae-in the disbarment order and thereafteror at any time after that date until all court-ordered restitution and outstanding disciplinary costs have been paid.

Disbarment is the presumed sanction for lawyers found guilty of theft from a lawyer’s trust account or special trust funds received or disbursed by a lawyer as guardian, personal representative, receiver, or in a similar - capacity such as trustee-under a specific--trust document. A respondent found guilty of such theft shaliwill have the opportunity to offer competent, substantial evidence to rebut the presumption that disbarment is appropriate.

Unless waived or modified by the court on motion of the respondent, an order or opinion imposing disbarment shaliwill include a provision that prohibits the respondent from accepting new business from the date of the order or opinion and shaliwill provide that the disbarment is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.

(g) [No Change]

(h) Notice to Clients. Unless the court orders otherwise, Upoawhen service on — the respondent is served with ef-an order of disbarment, disbarment on consent, disciplinary revocation, suspension, emergency suspension, emergency probation, or placement on the inactive list for incapacity not related to misconduct, the respondent shallmust, unless ■ this ■requirement is waived- or modified in the court’s order, forthwithimmediately furnish a copy of the order to:

(1) [No Change]

(2) all opposing counsel or co-counsel in the matters listed in (1), above; and

(3) all courts, tribunals, or adjudicative agencies before which the respondent is counsel of record-; and

(4) all state, federal, or administrative bars of which respondent is a member.

Within 30 days after service of the order the respondent shallmust furnish bar counsel with a sworn affidavit listing the names and addresses of all persons and entities that have been furnished copies of the order.

(i) [No Change]

(j) Restitution. In addition to any of the foregoing disciplinary sanctions and any disciplinary sanctions authorized elsewhere in these rules, the respondent may be ordered or agree to pay restitution to a complainant or other person if the disciplinary order finds that the respondent has received a clearly excessive, illegal, or prohibited fee or that the respondent has converted trust funds or property, in such-instances tThe amount of restitution shaliwill be specifically set forth in the disciplinary order or agreement and shall-wüh-net-exceed-the -amount by which a fee is clearly excessive, in the case of a prohibited or illegal fee shaliwill not exceed the amount of suehthe fee, or in the case of conversion shaliwill not exceed the amount of the conversion established in disciplinary proceedings. The disciplinary order or agreement shaliwill also state to whom restitution shallmust be made and the date by which it shallmust be completed. Failure to comply with the order or agreement shaliwill cause the respondent to become a delinquent member and will not preclude further proceedings under these rules. The respondent must provide the bar with telephone numbers and current addresses of all individuals or entities to whom the respondent is ordered to pay restitution.

RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM PROBATION OR INTERIM PLACEMENT ON THE INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT

(a) Petition for Emergency Suspension.

(1) Great Public Harm. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affi-ants that, if unrebutted, would establish clearly and convincingly that an-attorneya lawyer appears to be causing great public harm, the Supreme Court of Florida may issue an order suspending the said attor-noylawyer on an emergency basis.

(2) Discipline by Foreign Jurisdiction. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by a certified copy of an order of a foreign disciplinary jurisdiction suspending or disbarring an — at-torneya lawyer from the practice of law, the Supreme Court of Florida may issue an order suspending the attorneylawyer on an emergency basis. See subdivision (l) of rule 3-7.2.

A petition for emergency suspension shaliwill also constitute a formal complaint. The respondent shaliwill have 20 days after docketing by the Supreme Court of Florida of its order granting the bar’s petition for emergency suspension in which to file an answer and any affirmative defenses to the bar’s petition.

(b) Petition for Interim Probation or Interim Placement on the Inactive List for Incapacity Not Related to Misconduct. — On petition of The Florida Bar,authorized by its president, president-elect,-or-executive director, supported by 1 or more-affidavits demonstrating facts personally known to the affiants that, if unr-e-butted;-would establish clearly and — convincingly that conditions or restrictions on a lawyer-s privilege to practice law in Florida are necessary for protection of the public — the Supreme-Court of Florida-may issue-an-order placing said lawyer on-interim-probation, the- conditions of which shall-be-as provided-in rule 3-5.1(c)-; — or-placing the lawyer-on the inactive-list-f&r incapacity not related to misconduct as provided in rule 3-7.13. The Supreme Court of Florida may issue an order placing'a lawyer on interim probation, under the conditions provided in subdivision (c) of rule 3-5.1 or placing the lawyer on the inactive list for incapacity not related to misconduct as provided in rule 3-7,13. Such order may be issued upon petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affi-ants that, if unrebutted, would establish clearly and convincingly that conditions or restrictions on a lawyer’s privilege to practice law in Florida are necessary for protection of the public. This petition shall-will also.constitute the formal complaint; The respondent sfaaBwfll have 20 days after docketing by the Supreme Court of Florida of its order granting the bar’s petition for interim probation in which to file an answer and any affirmative defenses to the bar’s petition.

(c) Trust Accounts. Any order of emergency suspension or probation that restricts the attorney in maintaining a trust account shall, whenwill be served on the respondent and any bank or other financial institution maintaining an account against which said attorneythe respondent may make withdrawalsT. The order will serve as an injunction to prevent saidthe bank or financial institution from making further payment from suehthe trust account or accounts on any obligation except in accordance with restrictions imposed by the court through subsequent orders issued by a court-appointed referee. Bar counsel will serve a copy of the Supreme Court of Florida’s order freezing a lawyer’s trust account via first class mail on the bank(s) in which the respondent’s trust account is held.

(1) The court’s order appointing a referee under this rule may authorize the referee to determine entitlement to funds in the frozen trust account. Any client or third party claiming to be entitled to funds in the frozen trust account must file a petition requesting release of frozen trust account funds with the referee appointed in the case, accompanied by proof of entitlement to the funds.

(2) Bar counsel and bar auditors will provide information to the appointed referee from bar audits and other existing information regarding persons claiming ownership of frozen trust account funds. The bar will notify persons known to bar staff in writing via regular first class mail of their possible interest in funds contained in the frozen trust account. The notices will include a copy of the form of a petition requesting release of frozen trust account funds, to be filed with the referee and instructions for completing the form. The bar will publish, in the local county or city newspaper published where the lawyer practiced before suspension, a notice informing the public that the lawyer’s trust account has been frozen and those persons with claims on the funds should contact listed bar counsel within 30 days after publication whenever possible.

(A) If there are no responses to the notices mailed and published by the bar within 90 days from the date of the notice or if the amount in the frozen trust account is over $100,000, a receiver may be appointed by the referee to determine the person rightfully entitled to the frozen trust funds. The receiver will be paid from the corpus of the trust funds unless the referee orders otherwise.

(B) In all other instances, a referee shall determine who is entitled to funds in the frozen trust account, unless the amount in the frozen trust account is $5,000 or less and no persons with potential entitlement to frozen trust account funds respond to the bar’s mailed or published notices within 90 days from the date of the notice. In such event, the funds will be unfrozen.

(d) Referee Review of Frozen Trust Account Petitions. The referee will determine when and how to pay the claim of any person entitled to funds in the -frozen trust account after reviewing the bar’s audit report, the lawyer’s trust account records, the petitions Sled or the receiver’s recommendations. If the bar’s audit report or other rehable evidence shows that funds have been stolen or misappropriated from the lawyer’s trust account, then the referee may hold a hearing. Subchapter 3-7 will not apply to a referee hearing under this rule. No pleadings will be filed, only petitions requesting release of frozen trust account funds. The parties to this referee proceeding will be those persons filing a petition requesting release of frozen trust account funds. The bar will not be a party to the proceeding. The referee’s order will be the final order in the matter unless one of the parties petitions for review of the referee’s order to the Supreme Court of Florida. The sole issue before the referee will be determination of ownership of the frozen trust account funds. The referee will determine the percentage of monies missing from the respondent’s- trust account and the amounts owing to those petitioners requesting release of frozen trust account funds. A pro rata distribution is the method of distribution when there are insufficient funds in the account to pay all claims in full. The referee’s decision is subject only to direct petition for review of the referee’s final order by a party claiming an ownership interest in the frozen trust funds. The petition for review must be filed within 60 days of the referee’s final order. The schedule for filing of briefs in the appellate process will be as set forth in subchapter 3-7 of these rules.

(e) Separate Funds in Frozen Trust Accounts. The referee will order return of any separate funds to their rightful owner(s) in full upon their filing a petition requesting release of frozen trust account funds with proof of entitlement to the funds. Separate funds are monies deposited into the respondent’s trust account after the misappropriation, which are not affected by the misappropriation, and funds that have been placed into a separate segregated individual trust account under the individual client’s tax identification number.

(df) New Cases and Existing Clients. Any order of emergency suspension issued under this rule sh allwill immediately preclude the attorney from accepting any new cases and unless otherwise ordered permit the attorney to continue to represent existing clients for only the first 30 days after issuance of suefaan emergency order. Any fees paid to the suspended attorney during the 30-day period shallwill be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court.

(eg) Motions for Dissolution. The lawyer may move at any time for dissolution or amendment of an emergency order by motion filed with the Supreme Court of Florida, a copy of which will be served on bar counsel. SuchThe motion shallwill not stay any other proceedings and applicable time limitations in the case and, unless the motion fails to state good cause or is procedurally barred as an invalid successive motion, shallwill immediately be assigned to a referee designated by the chief justice. The filing of suehthe motion shallwill not stay the operation of an order of emergency suspension or interim probation entered under this rule.

(fh) Appointment of Referee. UpoOn entry of an order of suspension or interim probation, as provided above, the Supreme Court of Florida shallwill promptly appoint or direct the appointment of a referee. On determination that funds have been misappropriated from a lawyer’s trust account as provided above, the Supreme Court of Florida will promptly appoint or direct the appointment of a referee.

(gi) Hearing on Petition to Terminate or Modify Suspension. The referee shall-will hear a motion to terminate or modify-a suspension or interim probation imposed under this rule within 7 days of assignment and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing. The referee shallwill recommend dissolution or amendment, whichever is appropriate, to the extent that bar counsel cannot demonstrate a likelihood of prevailing on the merits on any element of the underlying rule violations.

(hj) Successive Motions Prohibited. Successive motions for dissolution shallwill be summarily dismissed by the Supreme Court of Florida to the extent that they raise issues that were or with due diligence could have been raised in a prior motion.

(ik) Review by the Supreme Court of Florida. UpoOn receipt of the referee’s recommended order on the motion for dissolution or amendment, the Supreme Court of Florida shallwill review and act upon the referee’s findings and recommendations regarding emergency suspensions and interim probations. This subdivision does not apply to a referee’s final order to determine ownership of funds in frozen trust accounts. These final orders of referee are reviewable by the Supreme Court of Florida only if a party timely files a petition for review pursuant to this rule. Briefing schedules following the petition for review will be as set forth in subchap-ter 3-7 of these rules.

(jl) Hearings on Issues Raised in Petitions for Emergency Suspension or Interim Probation and Sanctions. Once the Supreme Court of Florida has granted a petition for emergency suspension or interim probation as set forth in this rule, the referee appointed by the court shallwill hear the matter in the same manner as provided in rule 3-7.6, except that the referee shallwill hear the matter after the lawyer charged shall havehas answered the charges in the petition for emergency suspension or interim probation or when the time has expired for filing an answer. The referee shallwill issue a final report and recommendation within 90 days of appointment. If the time limit specified in this subdivision is not met, that portion of an emergency order imposing a suspension or interim probation shallwill be automatically dissolved, except upon order of the Supreme Court of Florida, provided that any other appropriate disciplinary action on the underlying conduct still may be taken.

(fan) Proceedings in the Supreme Court of Florida. Consideration of the referee’s report and recommendation sfaallregarding emergency suspension and interim probation will be expedited in the Supreme Court of Florida. If oral argument is granted, the chief justice shaliwill schedule oral argument as soon as practicable.

(In) Waiver of Time Limits. The respondent may at any time waive the time requirements set forth in this rule by written request made to and approved by the referee assigned to hear the matter.

RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS

(a) — (b) [No Change]

(c) Limitation on Diversion. A respondent who has been the subject of a is not eligible for diversion for the same type of rule violation for a period of 5 years after the earlier diversion. However, a respondent who has been the subject of a prior diversion and then is alleged to have violated a completely different type of rule at least 1 year after the initial diversion, will be eligible for a practice and professionalism enhancement program.

(d) — (l) [No Change]

COMMENT

As to subdivision (c) of 3-5.3, a lawyer who agreed to attend the Advertising Workshop in 1 year would not be eligible for another such diversion for an advertising violation for a period of 5 years following the first diversion. However, that same lawyer would be eligible to attend the Advertising Workshop 1 year and a Trust Account Workshop for a completely different violation 1 year after the first diversion is completed.

RULE 3-7.9 CONSENT JUDGMENT

(a) — (c) [No Change]

(d) Content of Conditional Pleas. All conditional pleas shall show clearly by reference or otherwise the disciplinary offenses to which the plea is made. All conditional pleas in which the respondent agrees to the imposition of a suspension or disbarment shall include an acknowledgment that, unless waived or modified by the court on motion of the respondent, the court order accepting the conditional plea will contain a provision that prohibits the respondent from accepting new business from the date of the order or opinion and shall provide that the suspension or disbarment is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients. A conditional plea may not permit a respondent to begin serving a suspension or disbarment until the Supreme Court of Florida issues an order or opinion approving the recommended discipline.

(e) — (f> [No Change]

RULE 3-7.10 REINSTATEMENT AND READMISSION PROCEDURES

(a) [No Change]

(b) Petitions; Form and Contents.

(1) Filing. The original petition for reinstatement and 1 copy must be ⅛-\⅞⅛⅛⅜ verified by the petitioner,-and-addressed to and filed with the Supreme Court of Florida Jnmompliancewitíi_fiieFloridaRules_of Civil Procedure and the Florida Rules of Judicial Administration. A copy must be served on Staff Counsel, The Florida Bar, 651 East — Jefferson Streep Tallahassee, Florida 32399-2300in compliance with applicable court rules. The petition for reinstatement may not be filed until the petitioner has completed at least 80% of the term of that lawyer’s period of suspension.

(2) Form and Exhibits. The petition must be in suehthe form and accompanied by suehthe exhibits as-provided for elsewhere in this rule. The information required concerning the petitioner may include any or all of the following matters in addition to suehany other matters asthat may be reasonably required to determine the fitness of the petitioner to resume the practice of law: criminal and civil judgments; disciplinary judgments; copies of income tax returns together with consents to secure original returns; occupation during suspension and employment related information; financial statements; and statement of restitution of funds that were the subject matter of disciplinary proceedings. In cases seeking reinstatement from incapacity, the petition must also include copies of all pleadings in the matter leading to placement on the inactive list and all sueh-other matters as may-be-reasonably required to demonstrate the character and fitness of the petitioner to resume the practice of law.

(c) Deposit for Cost. The petition must be accompanied by proof of a deposit paid -to The Florida Bar in suehthe amount as the board of governors prescribes to ensure payment of reasonable costs of the proceedings, as provided elsewhere in this rule.

(d) Reference of Petition Fetfor Hearing. The chief justice will refer the petition for reinstatement to a referee for hearing; provided, however, that no such refereneereferral will be made until evidence is submitted showing that all costs assessed against the petitioner in all disciplinary or incapacity proceedings have been paid and restitution has been made.

(e) Bar Counsel. When a petition for reinstatement is filed, the board of governors or staff counsel, if authorized by the board of governors, may appoint bar counsel to represent The Florida Bar in the proceeding. The duties -of- such lawyers arelawyer’s duty is to appear at the hearings and to prepare and present to the referee evidence that, in the opinion of the referee or sueh-lawyer, shouldwill be considered in passing upon the petition.

(f) Determination of Fitness by Referee Hearing. The referee to whom the petition for reinstatement is referred must conduct the hearing as a trial, in the same manner, to the extent practical, as provided elsewhere in these rules. The matter to decide isreferee-must decide the fitness of the petitioner to resume the practice of law. In determining the fitness — of—the petitioner-to-resume the practice -of — lawmaking this determination, the referee-will consider whether the petitioner has engaged in any disqualifying conduct, the character and fitness of the petitioner, and whether the petitioner has been rehabilitated, as further described in this subdivision. All conduct engaged in after the date of admission to The Florida Bar is relevant in proceedings under this rule.

(1) Disqualifying Conduct. A record manifesting a deficiency in the honesty, trustworthiness, diligence, or reliability of a petitioner may constitute a basis for denial of reinstatement. The following are considered disqualifying conduct:

(A) — (N) [No Change]

(O) any other conduct that reflects- ad-verselyadversely reflects upon the character or fitness of the applicant.

(2) Determination of Character and Fitness. In addition to other factors in making this determination, the following factors shouldwill be considered in assigning weight and significance to prior conduct:

(A) — (J) [No Change]

(3) Elements of Rehabilitation. Merely showing that an individual is now living as and doing those things that should be done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. Any petitioner for reinstatement from discipline for prior misconduct is required to produce clear and convincing evidence of such-rehabilitation including, but not limited to, the following elements:

(A) — (G) [No Change]

The requirement of positive action is appropriate for persons seeking reinstatement to the bar as well as for applicants for admission to the bar because service to one’s community is an essential obligation of members of the bar.

(4) Educational Requirements.

(A) [No Change]

(B) A petitioner who has been ineligible to practice for 5 years or more will not be reinstated under this rule until the petitioner has re-taken and provided proof in the lawyer’s petition for reinstatement that the lawyer has passed both the Florida portions of the Florida Bar Examination and the Multistate Professional Responsibility Examination (MPRE).

(g) Hearing; Notice; Evidence.

. (1) Notice. The referee to whom the petition for reinstatement is referred will fix a time and place for hearing, and notice of the hearing will be provided at least 10 days prior to the hearing to the petitioner, to lawyers representing The Florida Bar, and to such other persons aswho may be designated by the appointed referee — to whom-the-petition-is-referred.

(2)[No Change]

(3) Failure of Petitioner to be Examined. For the failure of the petitioner to submit to examination as a witness pursuant to notice given, the referee will dismiss the petition for reinstatement unless good cause is shown for suehthe failure.

(4) Summary Procedure. If after the completion of discovery bar counsel is unable to discover any evidence on which denial of reinstatement may be based and if no other person provides sameany relevant evidence, bar counsel may, with the approval of the designated reviewer and staff counsel, stipulate to the issue of reinstatement, including conditions for reinstatement. The stipulation must include a statement of costs as provided elsewhere in these Rules Regulating the Florida Bar.

(5) [No Change]

(h) — (i) [No Change]

(j) Recommendation of Referee and Judgment of the Court. If the petitioner is found unfit to resume the practice of law, the petition will be dismissed. If the petitioner is found fit to resume the practice of law, the referee will enter a report recommending, and the court may enter an order of, reinstatement of the petitioner in The Florida Bar; provided, however, that the reinstatement may be conditioned upon the payment of all or part of the costs of the proceeding and upon the making of partial or complete restitution to parties harmed by the petitioner’s misconduct that led to the petitioner’s suspension of membership in The Florida Bar or conduct that led to the petitioner’s incapacity; and further provided, however, if suspension or incapacity of the petitioner has continued for more than 3 years, the reinstatement may be conditioned upon the ■fu-r-nishing-of-such-proof of competency as may be required by the judgment in the discretion of the Supreme Court of Florida,. which pProof may include certification by the Florida Board of Bar Examiners of the successful completion of an examination for admission to The Florida Bar subsequent to the date of the suspension or incapacity.

(k) Successive Petitions. No petition for reinstatement may be filed within 1 year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person. In cases of incapacity no petition for reinstatement may be filed within 6 months following an adverse judgment under this rule.

(l) Petitions for Reinstatement to Membership in Good Standing.

(1) [No Change]

(2) Style of Petition. Petitions must be styled in the Supreme Court of Florida and an original ■ and -1- -copy-filed with the eourtSupreme Court of Florida in accordance with the court’s filing requirements, including e-filing requirements where applicable. A copy must be served on Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300.

(3) Contents of Petition. The petition must be verified by the petitioner and accompanied by a written authorization to the District Director of the Internal Revenue Service, authorizing the furnishing of certified copies of the petitioner’s tax returns for the past 5 years or since admission to the bar, whichever is greater. The authorization must be furnished on a separate sheet. The petition must have attached as an exhibit a true copy of all disciplinary judgments previously entered against the petitioner. It must also include the petitioner’s statement concerning the following:

(A) [No Change]

(B) the conduct, offense, or misconduct upon which the suspension or incapacity was based, together with the date of such suspension or incapacity;

(C) the names and addresses of all complaining witnesses in any disciplinary proceedings that resulted in suspension; and the name and address of the referee or judge who heard saehthese disciplinary proceedings or of the trial judge, complaining witnesses, and prosecuting lawyer, if suspension was based upon conviction of a felony or misdemeanor involving moral turpitude;

(D) the nature of the petitioner’s occupation in detail since suspension or incapacity, with names and addresses of all partners, associates in business, and employers, if any, and dates and duration of all saehthese relations and employments;

(E) a statement showing the approximate monthly earnings and other income of the petitioner and the sources from which all such earnings and income were derived during saidthis period;

(F) a statement showing all residences maintained during saidthis period, with names and addresses of landlords, if any;

(G) — (I) [No Change]

(J) a statement as to whether any applications were made during the period of suspension for a license requiring proof of good character for its procurement; and, as-tofor each sueh-application, the date and the name and address of the authority to whom it was addressed and its disposition;

(K) a statement of any procedure or inquiry, during the period of suspension, covering the petitioner’s standing as a member of any profession or organization, or holder of any license or office, that involved the censure, removal, suspension, revocation of license, or discipline of the petitioner; and, as to each, the dates, facts, and the disposition, and the name and address of the authority in possession of these records;

(L) a statement as to whether any charges of fraud were made or claimed against the petitioner during the period of suspension, whether formal or informal, together with the dates and names and addresses of persons making suehthese charges;

(M) [No Change]

(N) a statement showing the dates, general nature, and final disposition of every civil action in which the petitioner was either a party plaintiff or defendant, together with dates of filing of complaints, titles of courts and causes, and the names and addresses of all parties and of the trial judge or judges, and names and addresses of all witnesses who testified in saidthis action or actions; and

(O) a statement showing what amounts, if any, of the costs assessed against the accused lawyer in the prior disciplinary proceedings against the petitioner have been paid by the petitioner and the source and amount of funds used for this purpose.

(4) Comments on Petition. UpoOn the appointment of a referee and bar counsel, copies of the petition will be furnished by the bar counsel to local board members, local grievance committees, and to such other persons as are mentioned in this rule. Persons or groups that wish to respond must direct their comments to bar counsel. The proceedings and finding of the referee will relate to those matters described in this rule and also to those matters tending to show the petitioner’s rehabilitation, present fitness to resume the practice of law, and the effect of suehthe proposed reinstatement upon the administration of justice and purity of the courts and confidence of the public in the profession.

(5) [No Change]

(m) — (n) [No Change]

COMMENT

[No Change]

RULE 4-1.6 CONFIDENTIALITY OF INFORMATION

(a) [No Change]

(b) When Lawyer Must Reveal Information. A lawyer must reveal suehconfi-dential information to the extent the lawyer reasonably believes necessary:

(1) — (2) [No Change]

(c) When Lawyer May Reveal Information. A lawyer may reveal suchconfi-dential information to the extent the lawyer reasonably believes necessary:

(1) — (2) [No Change]

(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;

(4) to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(5) to comply with the Rules Regulating The Florida Bar-; or

(6) to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(d)