In re Amendments to the Rules Regulating the Fla. Bar-biennial Petition (267 So. 3d 891, 2019)

PER CURIAM.

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

The Bar's petition in this case proposes amendments to the following existing Bar Rules: 1-3.7 (Reinstatement to Membership); 2-3.11 (Quorum); 2-9.2 (Standing Board Policies); 2-9.4 (Ethics); 2-9.6 (Rules of Order); 2-9.7 (Insurance for Members of Board of Governors, Officers, Grievance Committee Members, UPL Committee Members, Clients' Security Fund Committee Members, and Employees); 3-7.2 (Procedures upon Criminal or Professional Misconduct; Discipline upon Determination or Judgment of Guilt of Criminal Misconduct; Discipline on Removal from Judicial Office); 3-7.10 (Reinstatement and Readmission Procedures); 3-7.11 (General Rules of Procedure); 4-1.2 (Objectives and Scope of Representation); 4-1.5 (Fees and Costs for Legal Services); 4-1.10 (Imputation of Conflicts of Interest; General Rule); 4-1.19 (Collaborative Law Process in Family Law); 4-5.8 (Procedures for Lawyers Leaving Law Firms and Dissolution of Law Firms); 4-6.5 (Voluntary Pro Bono Plan); 4-8.3 (Reporting Professional Misconduct); 6-1.2 (Public Notice); 6-10.3 (Minimum Continuing Legal Education Standards); 14-6.1 (Binding Nature; Enforcement; and Effect of Failure to Pay Award); 14-7.1 (Immunity and Confidentiality); 18-1.2 (Definitions); 20-3.1 (Requirements for Registration); 20-5.2 (Duty to Update); 20-6.1 (Generally); 20-8.3 (Complaint Processing); and 20-8.6 (Disposition of Complaints). Additionally, the Bar proposes deleting Bar Rules 2-9.8 (Practice Resource Institute) and 3-7.15 (Amendments) in their entirety because they are duplicative of subdivisions of other Bar Rules. The proposals were approved by the Board of Governors and formal notice of the proposed amendments was published in The Florida Bar News , which invited comments from interested parties. No comments were received.

After having fully considered the Bar's petition, we adopt most of the amendments as proposed by the Bar and delete rules 2-9.8 and 3-7.15 in their entirety, as proposed by the Bar. However, as discussed below, we decline to adopt portions of the amendments proposed to rule 3-7.2, and we adopt modified amendments to rule 20-3.1. We discuss the more significant amendments below.

First, we amend Bar Rule 1-3.7 to increase the required number of continuing legal education hours in subdivision (c) for retired or delinquent attorneys seeking reinstatement from ten to eleven hours for each year or partial year of retirement or delinquency. Subdivision (g)(2) is also amended to require inactive members who are seeking reinstatement to complete thirty-three hours of continuing legal education, rather than thirty hours. These changes are made following this Court's opinion in In re Amendments to Rules Regulating the Florida Bar 4-1.1 & 6-10.3 , 200 So.3d 1225 (Fla. 2016), in which the three-year continuing legal education requirement was increased from thirty hours to thirty-three hours.

Next, we amend Bar Rules 2-3.11, 2-9.2, and 2-9.6 to allow the Bar, and divisions thereof, to conduct electronic meetings. Specifically, Bar Rule 2-3.11 is renamed to "Electronic Meetings" and is rewritten to explicitly allow the Bar and divisions thereof to conduct electronic meetings. The title of Bar Rule 2-9.2 is amended to read "Adoption, Amendment, and Waiver of Standing Board Policies and Rules of Order," and the text of the rule is amended to provide that in addition to standing board policies, the Board of Governors may adopt "special rules of order governing parliamentary procedures." The text of Bar Rule 2-9.6 is amended to provide that Robert's Rules of Order is the parliamentary authority that governs meetings of the Bar to the extent that it does not conflict with any standing board policies or special rules of order; if there is a conflict, the standing board policies or special rules of order will control.

We next amend Bar Rule 3-7.2 to make clear that it is an attorney's duty to report pending criminal charges and any judgment thereon to the Bar. Several subdivisions throughout the rule are rewritten for readability and to make clear the duties imposed by the rule, and upon whom those duties are imposed. However, we decline to adopt the Bar's proposed amendment to subdivision (f) that would make discretionary the Bar's now-mandatory duty to file a Notice of Determination or Judgment of Guilt with the Court upon discovery that an attorney has been adjudicated guilty of a felony. Although the Bar expresses concern over having no discretion in cases involving a finding of guilt of a felony that requires no intent because the rule provides for the automatic interim suspension of the attorney, we find that the seriousness of having been found guilty of a felony offense militates in favor of this Court retaining the ability to review the circumstances surrounding the finding of guilt. Accordingly, we decline to adopt the Bar's proposed amendment in this regard. We note, however, that any concern that a sanction resulting from having been found guilty of a felony offense that requires no intent will be too severe is addressed by the procedures already present in the rule; subdivision (h) provides that the matter will be referred to a referee who can make a recommendation to the Court as to the appropriate sanction for the attorney's conduct, which the Court considers in imposing the final discipline.

We next amend subdivision (f)(4)(B) of Bar Rule 3-7.10 to make clear that attorneys seeking reinstatement that are required under that subdivision to complete the Florida bar examination or a portion thereof must have proof of having passed the required portions of the examination prior to filing a petition for reinstatement under that rule.

Additionally, we amend subdivision (h) within Bar Rule 4-1.5 to replace the provision that "[n]o higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer's or law firm's participation in a credit plan" with a statement that "[l]awyers may charge clients the actual charge the credit plan imposes on the lawyer for the client's transaction." By so doing, we hereby allow lawyers to pass on the actual costs resulting directly from a client's choice to pay a bill or invoice with a credit card, or make payments under a credit plan, to that client.

We next amend Bar Rule 6-10.3 to require that one of the five credit hours of continuing legal education per three-year reporting cycle that is required to concern legal ethics, professionalism, bias elimination, substance abuse, or mental illness awareness must concern professionalism. Additionally, we amend the definition of "supervising lawyer" contained in Bar Rule 18-1.2(c) to make clear that a supervising lawyer under that rule must be "eligible to practice law in Florida."

Next, we amend various rules governing the Florida Registered Paralegal Program. First, we amend Bar Rule 20-3.1 to create an additional category of individuals who may become Florida Registered Paralegals; however, we modify the language proposed by the Bar to create the category for those with "a juris doctorate degree from an American Bar Association accredited institution and membership in good standing with a state bar association other than Florida's, with no minimum paralegal work experience." We also amend Bar Rule 20-5.2 to provide that the Bar will notify a registered paralegal's supervising or employing attorney of any changes to the paralegal's registration status. Further, we amend Bar Rule 20-6.1 to increase the continuing education requirement for registered paralegals from thirty hours every reporting cycle to thirty-three hours, and requiring three of those hours to concern technology. Additionally, we increase the number of continuing education hours required for re-registering after resigning or having one's registration revoked from ten hours to eleven. These increases are consistent with recent increases that we have made with regard to required continuing legal education requirements for lawyers. Last, we amend subdivision (e) of Bar Rule 20-8.3 to require a registered paralegal to notify the supervising attorney if a complaint has been filed against the paralegal pursuant to that rule.

Finally, we delete two rules in their entirety because they are duplicative of provisions found elsewhere in the rules. Bar Rule 2-9.8 is deleted as duplicative of Bar Rule 2-3.2(d)(7). Additionally, Bar Rule 3-7.15 is deleted as duplicative of Bar Rule 1-12.1(f).

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. 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 March 5, 2019.

It is so ordered.

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

Appendix APPENDIX

CHAPTER 1 GENERAL 1-3 MEMBERSHIP

RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP

(a) Eligibility for Reinstatement. Members who have retired or been delinquent for a period of time not in excess of 5 years are eligible for reinstatement under this rule. Time will be calculated from the day of the retirement or delinquency.

Inactive members may also seek reinstatement under this rule.

(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 include all required information on a form approved by the board of governors. 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 be 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 on 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 complete

40

11 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 the Florida Board of Bar Examiners and approval by the Supreme Court of Florida.

(e) Members Who Have Permanently Retired. Members who have permanently retired will not be reinstated under this rule.

(f) Members Delinquent 60 Days or Less. Reinstatement from delinquency for payment of membership fees or completion of continuing legal education or basic skills course requirements approved within 60 days from the date of delinquency is 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) Inactive Members. Inactive members may be reinstated to active membership in good standing to become eligible to practice law in Florida by petition filed with the executive director, in the form and as provided in (b) above, except:

(1) If the member has been inactive for greater than 5 years, has been authorized to practice law in another jurisdiction, and either actively practiced law in that jurisdiction or held a position that requires a license as a lawyer for the entire period of time, the member will be required to complete the Florida Law Update continuing legal education course as part of continuing legal education requirements.

(2) If the member has been inactive for greater than 5 years and does not meet the requirements of subdivision (1), the member will be required to complete the basic skills course requirement and the

30-hour

33-hour continuing legal education requirement.

(3) An inactive member is not eligible for reinstatement until all applicable continuing legal education requirements have been completed and the remaining portion of membership fees for members in good standing for the current fiscal year have been paid.

CHAPTER 2 BYLAWS OF THE FLORIDA BAR 2-3 BOARD OF GOVERNORS

BYLAW 2-3.11

QUORUM

ELECTRONIC MEETINGS

A majority of the members of the board of governors shall constitute a quorum for the transaction of business at all meetings.

Electronic meetings are authorized for all meetings of The Florida Bar; its board of governors; the executive committee and committees of its board of governors; and its sections, divisions, and committees. Special rules of order pertaining to the conduct of electronic meetings may be adopted by the board of governors.

2-9 POLICIES AND RULES BYLAW 2-9.2 ADOPTION, AMENDMENT, AND WAIVER OF STANDING BOARD POLICIES AND RULES OF ORDER

The board of governors

shall

may adopt standing board policies governing the

internal

-administration and operation and special rules of order governing parliamentary procedures of The Florida Bar and the board of governors. The board of governors may adopt, amend, or rescind standing board policies and special rules of order by a majority vote of the membership of the board of governors provided any amendment to any standing board policy or special rules of order

shall

is not

be

effective until 30 days after adoption or another date specifically approved by the board of governors.

Such standing

Standing board policies and special rules of order may be adopted, rescinded, or amended by a majority vote of those present at any regular meeting of the board of governors provided advance written notice is given to the members of the board of governors of the proposed adoption, repeal, or amendment of any standing board policy or special rules of order. The provision of any standing board policy or special rule of order may be waived by a two-thirds vote of those present at any regular meeting of the board of governors.

BYLAW 2-9.4 ETHICS

(a) Rules of Procedure. The board of governors

shall

adopt s rules of procedure governing the manner in which opinions on professional ethics may be solicited by members of The Florida Bar, issued by the staff of The Florida Bar or by the professional ethics committee, circulated or published by the staff of The Florida Bar or by the professional ethics committee, and appealed to the board of governors of The Florida Bar.

(b) Amendment. The adoption of, repeal of, or amendment to the rules authorized by subdivision (a)

shall be

is effective only under the following circumstances:

(1) The proposed rule, repealer, or amendment

shall be

is approved by a majority vote of the board of governors at any regular meeting of the board of governors.

(2) The proposal

thereafter shall be

is published in The Florida Bar

News

News at least 20 days preceding the next regular meeting of the board of governors.

(3) The proposal

shall thereafter

receive s a majority vote of the board of governors at its meeting following publication

as herein required

.

(c) Waiver. The rules of procedure adopted as required in subdivision (a) may be temporarily waived as to any particular matter only

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on unanimous vote of those present at any regular meeting of the board of governors.

(d) Confidentiality. Each advisory opinion issued by Florida Bar ethics counsel

shall

will be identified as a "staff opinion" and

shall

be available for inspection or production. The names and any identifying information of any individuals mentioned in a staff opinion

shall

will be deleted before the staff opinion is released to anyone other than the member of The Florida Bar making the original request for the advisory opinion.

(e) Disqualification as

Attorney

Lawyer Due to Conflict.

(1) Members of the Professional Ethics Committee (PEC), Members of the Board of Governors, and Employees of The Florida Bar. No member of the PEC, the board of governors, or employee of The Florida Bar shall represent a party other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these Rules Regulating The Florida Bar.

(2) Former Members of the PEC, Former Board Members, and Former Employees. No former member of the PEC, former member of the board of governors, or former employee of The Florida Bar shall represent any party other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these rules if personally involved to any degree in the matter while a member of the PEC, a member of the board of governors, or an employee of The Florida Bar.

A former member of the PEC, former member of the board of governors, or former employee of The Florida Bar who did not participate personally in any way in the matter or any related matter in which the attorney seeks to be a representative, and who did not serve in a supervisory capacity over such matter, shall not represent any party except The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these rules for 1 year after such service without the express consent of the board.

(3) Partners, Associates, Employers, or Employees of the Firms of PEC Members or Board of Governors Members Precluded From Representing Parties Other Than The Florida Bar. Members of the firms of board of governors members or PEC members shall not represent any party other than

The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these rules without the express consent of the board.

(4) Partners, Associates, Employers, or Employees of the Firms of Former PEC Members or Former Board of Governors Members Precluded From Representing Parties Other Than The Florida Bar.

Attorneys in the firms of former board of governors members or former PEC members shall not represent any party other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these rules for 1 year after the former member's service without the express consent of the board.

(1) Representation Prohibited. Lawyers may not represent any person or entity other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized by these rules if they are:

(A) currently serving on the professional ethics committee or the board of governors:

(B) employees of The Florida Bar; or

(C) former members of the professional ethics committee, former members of the board of governors, or former employees of The Florida Bar if personally involved to any degree in the matter while a member of the professional ethics committee or the board of governors, or while an employee of The Florida Bar.

(2) Representation Permitted With Consent by the Board of Governors. Lawyers may represent a person or entity other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized by these rules only after receiving consent from the executive director or board of governors if they are:

(A) former members of the professional ethics committee, former members of the board of governors, or former employees of The Florida Bar who did not participate personally in any way in the matter or in any related matter in which the lawyer seeks to be a representative and who did not serve in a supervisory capacity over the matter within 1 year of the service or employment;

(B) a partner, associate, employer, or employee of a member of the professional ethics committee or a member of the board of governors; or (C) a partner, associate, employer, or employee of a former member of the professional ethics committee or a former member of the board of governors within 1 year of the former member's service on the professional ethics committee or board of governors.

(3) Participation in Issuance of Ethics Proceedings for Oneself. The disqualification under this rule does not prohibit lawyers described above from participating on their own behalf in proceedings for the issuance of opinions on professional ethics authorized by these rules and the Florida Bar Procedures for Ruling on Questions of Ethics.

BYLAW 2-9.6 RULES OF ORDER

The current edition of Robert's Rules of Order

shall be the rules that

is the parliamentary authority that govern s the conduct of all meetings of The Florida Bar, its board of governors, its sections, divisions, and committees , except for Robert's Rules of Order that are inconsistent with these bylaws and the bar's Special Rules of Order as set forth in the Standing Board Policies or in section or division bylaws.

BYLAW 2-9.7 INSURANCE FOR MEMBERS OF BOARD OF GOVERNORS, OFFICERS, GRIEVANCE COMMITTEE MEMBERS, UPL COMMITTEE MEMBERS, CLIENTS' SECURITY FUND COMMITTEE MEMBERS, AND EMPLOYEES

Appropriate

The bar will provide insurance coverage for members of the board of governors, officers of The Florida Bar, members of UPL, clients' security fund, and grievance committees

,

and employees of The Florida Bar

shall be provided

as authorized by the budget committee and included in the budget.The bar will indemnify officers, board of governors, UPL, clients' security fund, and grievance committee members and bar employees as provided in the standing board policies.

To the extent the person is not covered by insurance, The Florida Bar shall indemnify any officer, board member, UPL, clients' security fund, or grievance committee member, or employee of The Florida Bar who was or is a party, or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by The Florida Bar), by reason of the fact that the person is or was an officer, board member, UPL, clients' security fund, or grievance committee member, or employee of The Florida Bar, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the person in connection with such action, suit, or proceeding,

including any appeal thereof, if the person acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of The Florida Bar, and with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner that the person reasonably believed to be in, or not opposed to, the best interests of The Florida Bar, or with respect to any criminal action or proceeding, had reasonable cause to believe that the conduct was unlawful.

BYLAW 2-9.8

PRACTICE RESOURCE INSTITUTE

RESERVED FOR FUTURE USE

The board of governors creates the Practice Resource Institute and will adopt standing board policies, as provided in bylaw 2-9.2, that govern the operation of the institute.

CHAPTER 3 RULES OF DISCIPLINE 3-7 PROCEDURES

RULE 3-7.2 PROCEDURES

UP

ON CRIMINAL OR PROFESSIONAL MISCONDUCT; DISCIPLINE

UP

ON DETERMINATION OR JUDGMENT OF GUILT OF CRIMINAL MISCONDUCT; DISCIPLINE ON REMOVAL FROM JUDICIAL OFFICE

(a) Definitions.

(1)Judgment of Guilt. For the purposes of these rules, "judgment of guilt" includes only those cases in which the trial court in the criminal proceeding enters an order adjudicating the respondent guilty of the offense(s) charged.

(2)Determination of Guilt. For the purposes of these rules, "determination of guilt" includes those cases in which the trial court in the criminal proceeding enters an order withholding adjudication of the respondent's guilt of the offense(s) charged, those cases in which the convicted lawyer has entered a plea of guilty to criminal charges, those cases in which the convicted lawyer has entered a no contest plea to criminal charges, those cases in which the jury has rendered a verdict of guilty of criminal charges, and those cases in which the trial judge in a bench trial has rendered a verdict of guilty of criminal charges.

(3)Convicted Lawyer. For the purposes of these rules, "convicted lawyer" means a lawyer who has had either a determination or judgment of guilt entered by the trial court in the criminal proceeding.

(b) Determination or Judgment of Guilt, Admissibility; Proof of Guilt. Determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction

up

on trial of or plea to any crime under the laws of this state, or under the laws under which any other court making

such

the determination or entering

such

the judgment exercises its jurisdiction, is admissible in proceedings under these rules and is conclusive proof of guilt of the criminal offense(s) charged for the purposes of these rules.

(c) Notice of Institution of Felony Criminal Charges.

Upon the institution of a felony criminal charge against a member of The Florida Bar by the filing of an indictment or information the

Any member of The Florida Bar who is the subject of a felony criminal charge must

within 10 days of the institution of the felony criminal charges

notify the executive director of The Florida Bar of

such

the charges within 10 days of the filing of the indictment or information and include a copy of the indictment or information.

Notice includes a copy of the document(s) evidencing institution of the charges.

If the state attorney whose office is assigned to a felony criminal case is aware that the defendant is a member of The Florida Bar, the state attorney must provide a copy of the indictment or information to the executive director.

(d) Notice of Determination or Judgment of Guilt of Felony Charges.

(1)Trial Judge.

If any such determination or judgment is entered in a court of the State of Florida, the

The trial judge must

, within 10 days of the date on which the determination or judgment is entered, give notice

provide a certified copy of the determination or judgment of guilt of a felony offense to the executive director of The Florida Bar

and include a certified copy of the document(s) on which the determination or judgment was entered

within 10 days of its entry.

(2)Clerk of Court.

If any such determination or judgment is entered in a court of the State of Florida, the

The clerk of that court must

, within 10 days of the date on which the determination or judgment is entered, give notice

provide a certified copy of the determination or judgment of guilt of a felony offense to the executive director

and include a certified copy of the document(s) on which the determination or judgment was entered

within 10 days of its entry.

(3)State Attorney.

If the state attorney whose office is assigned to a felony criminal case is aware that the defendant is a member of The Florida Bar, the

The state attorney whose office is assigned that case must

give notice of

provide a copy of the documents evidencing the determination or judgment of guilt of a felony offense to the executive director

the determination or judgment of guilt to the executive director and include a copy of the document(s) evidencing such determination or judgment

if the state attorney is aware that the defendant is a member of The Florida Bar.

(e) Notice of Self-Reporting by Members of Determination or Judgment of Guilt of All Criminal Charges.

A member of The Florida Bar must

within 10 days of entry of a determination or judgment for any criminal offense, which was entered on or after August 1, 2006, notify the executive director of The Florida Bar of such determination or judgment. Notice must include

provide a copy of the document(s)

on which such determination or judgment was entered

entering a determination or judgment for any criminal offense against that member entered on or after August 1, 2006 to the executive director within 10 days of its entry.

(f) Suspension by Judgment of Guilt (Felonies).

Upon receiving notice that a member of the bar has been determined to be or adjudicated guilty of a felony, the bar

The Florida Bar will file a "Notice of Determination or Judgment of Guilt" or a consent judgment for disbarment or disciplinary revocation in the Supreme Court of Florida on receiving notice that a member of the bar has been determined to be or adjudicated guilty of a felony. A copy of the document(s) on which the determination or judgment is based must be attached to the notice.

Upon the filing of the notice with the Supreme Court of Florida and service of such notice upon the respondent, the

The respondent is suspended as a member of The Florida Bar as defined in rule 3-5.1(e)on filing of the notice with the Supreme Court of Florida and service of the notice on the respondent.

(g) Petition to Modify or Terminate Suspension.

At any time after the filing of a notice of determination or judgment of guilt, the

The respondent may file a petition with the Supreme Court of Florida to modify or terminate

such

suspension at any time after the filing of a notice of determination or judgment of guilt.

and

The respondent must serve a copy of the petition on the executive director. The

filing of such petition will not operate as a stay of the

suspension imposed under the authority of this rule will not be stayed by filing a petition to modify or terminate suspension.

(h) Appointment of Referee.

Upon the entry of an order of suspension, as provided above, the supreme court must

The Supreme Court of Florida will promptly appoint or direct the appointment of a referee on the entry of an order of suspension as provided above.

(1)Hearing on Petition to Terminate or Modify Suspension. The referee must hear a petition to terminate or modify a suspension imposed under this rule within 7 days of appointment and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing. The referee will recommend termination or modification of the suspension only if the suspended member can demonstrate that the member is not the convicted person or that the criminal offense is not a felony.

(2)Hearing on Sanctions.

In addition to conducting a hearing on a petition to terminate or modify a suspension entered under this rule, the

The referee may also hear argument concerning the appropriate sanction to be imposed and file a report and recommendation with the supreme court in the same manner and form as provided in rule 3-7.6(m) of these rules. The hearing must be held and a report and recommendation filed with the supreme court within 90 days of assignment as referee.

The respondent may challenge the imposition of a sanction only on the grounds of mistaken identity or whether the conduct involved constitutes a felony under applicable law. The respondent may present relevant character evidence and relevant matters of mitigation regarding the proper sanction to be imposed. The respondent cannot contest the findings of guilt in the criminal proceedings. A respondent who entered a plea in the criminal proceedings is allowed to explain the circumstances concerning the entry of the plea for purposes of mitigation.

The report and recommendations of the referee may be reviewed in the same manner as provided in rule 3-7.7 of these rules.

(i) Appeal of Conviction.

If an appeal is taken by the respondent from the determination or judgment in the criminal proceeding, the

The suspension will remain in effect during

the

any appeal of the determination or judgment of guilt of a felony offense in the criminal proceeding.

If on review the cause is remanded for further proceedings, the

The suspension will remain in effect until the final disposition of the criminal cause if remanded for further proceedings and until the respondent's civil rights have been restored and the respondent has been reinstated unless modified or terminated by the Supreme Court of Florida as elsewhere provided.

Further, the suspension imposed will remain in effect until civil rights have been restored and until the respondent is reinstated.

(j) Expunction.

Upon motion of the respondent, the

The Supreme Court of Florida may expunge a sanction entered under this rule when a final disposition of the criminal cause has resulted in acquittal or dismissal on motion of the respondent. A respondent who is the subject of a sanction that is expunged under this rule may lawfully deny or fail to acknowledge the sanction, except when the respondent is a candidate for election or appointment to judicial office, or as otherwise required by law.

(k) Waiver of Time Limits. The respondent may waive the time requirements set forth in this rule by written request made to and approved by the referee or supreme court.

( l ) Professional Misconduct in Foreign Jurisdiction.

(1)Notice of Discipline by a Foreign Jurisdiction. A member of The Florida Bar

who has submitted a disciplinary resignation or otherwise surrendered a license to practice law in lieu of disciplinary sanction, or has been disbarred or suspended from the practice of law by a court or other authorized disciplinary agency of another state or by a federal court must within 30 days after the effective date of the disciplinary resignation, disbarment or suspension

must file a copy of any order or judgment by a court or other authorized disciplinary agency of another state or by a federal court effecting a disciplinary resignation, disciplinary revocation, disbarment, or suspension or any other surrender of the member's license to practice law in lieu of discipline with the Supreme Court of Florida and the executive director of The Florida Bar

a copy of the order or judgment effecting such disciplinary resignation, disbarment or suspension

within 30 days of its effective date.

(2)Effect of Adjudication or Discipline by a Foreign Jurisdiction.

On petition of The Florida Bar supported by a copy of a final adjudication by a foreign court or disciplinary authority, the

The Supreme Court of Florida may issue an order suspending

on an emergency basis

the member who is the subject of the final adjudication on an emergency basis on petition of The Florida Bar attaching a copy of the final adjudication by a foreign court or disciplinary authority. All of the conditions not in conflict with this rule applicable to issuance of emergency suspension orders elsewhere within these Rules Regulating The Florida Bar are applicable to orders entered under this rule.

(m) Discipline

Upon

on Removal

From

from Judicial Office.

(1)Notice of Removal.

If an order of the Supreme Court of Florida removes a member of The Florida Bar from judicial office for judicial misconduct, the

The clerk of the

supreme court

Supreme Court of Florida will forward a copy of

the

any order

of removal

removing a member of The Florida Bar from judicial office for judicial misconduct to the executive director of The Florida Bar.

(2)Filing of Formal Complaint.

Upon receipt of an order removing a member from judicial office for judicial misconduct, the bar

The Florida Bar may file a formal complaint with the

court

Supreme Court of Florida and seek appropriate discipline on receipt of an order removing a member from judicial office for judicial misconduct.

(3)Admissibility of Order; Conclusive Proof of Facts. The order of removal is admissible in proceedings under these rules and is conclusive proof of the facts on which the judicial misconduct was found by the

court

Supreme Court of Florida.

(4)Determination of Lawyer Misconduct. The issue of whether the facts establishing the judicial misconduct also support a finding of lawyer misconduct are determined by the referee based on the record of the proceedings.

RULE 3-7.10 REINSTATEMENT AND READMISSION PROCEDURES

(a) Reinstatement; Applicability. A lawyer who is ineligible to practice due to a court-ordered disciplinary suspension of 91 days or more or who has been placed on the inactive list for incapacity not related to misconduct may be reinstated to membership in good standing in The Florida Bar and be eligible to practice again pursuant to this rule. The proceedings under this rule are not applicable to any lawyer who is not eligible to practice law due to a delinquency as defined in rule 1-3.6 of these rules.

(b) Petitions; Form and Contents.

(1)Filing. The original petition for reinstatement must be verified by the petitioner and filed with the Supreme Court of Florida in compliance with the Florida Rules of Civil Procedure and the Florida Rules of Judicial Administration. A copy must be served on

Staff Counsel

staff counsel, The Florida Bar, in 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 the form and accompanied by the exhibits provided for elsewhere in this rule. The information required concerning the petitioner may include any or all of the following matters in addition to any other matters that 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 other matters 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 the amount the board of governors prescribes to ensure payment of reasonable costs of the proceedings, as provided elsewhere in this rule.

(d) Reference of Petition for Hearing. The chief justice will refer the petition for reinstatement to a referee for hearing; provided, however, that no such referral 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 lawyer'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 lawyer, will 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 referee must decide the fitness of the petitioner to resume the practice of law. In making 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) unlawful conduct;

(B) academic misconduct;

(C) making or procuring any false or misleading statement or omission of relevant information, including any false or misleading statement or omission on any application requiring a showing of good moral character;

(D) misconduct in employment;

(E) acts involving dishonesty, fraud, deceit, or misrepresentation;

(F) abuse of legal process;

(G) financial irresponsibility;

(H) neglect of professional obligations;

(I) violation of an order of a court;

(J) evidence of mental or emotional instability;

(K) evidence of drug or alcohol dependency;

(L) denial of admission to the bar in another jurisdiction on character and fitness grounds;

(M) disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction;

(N) failure of a felony-suspended lawyer to submit proof that the affected lawyer's civil rights have been restored; and

(O ) any other conduct that adversely reflects on 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 will be considered in assigning weight and significance to prior conduct:

(A) age at the time of the conduct;

(B) recency of the conduct;

(C) reliability of the information concerning the conduct;

(D) seriousness of the conduct;

(E) factors underlying the conduct;

(F) cumulative effect of the conduct or information;

(G) evidence of rehabilitation;

(H) positive social contributions since the conduct;

(I) candor in the discipline and reinstatement processes; and

(J) materiality of any omissions or misrepresentations.

(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 rehabilitation including, but not limited to, the following elements:

(A) strict compliance with the specific conditions of any disciplinary, judicial, administrative, or other order, where applicable;

(B) unimpeachable character and moral standing in the community;

(C) good reputation for professional ability, where applicable;

(D) lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative, or other proceeding;

(E) personal assurances, supported by corroborating evidence, of a desire and intention to conduct one's self in an exemplary fashion in the future;

(F) restitution of funds or property, where applicable; and

(G) positive action showing rehabilitation by such things as a person's community or civic service. Community or civic service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions.

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) In the case of a petitioner's ineligibility to practice for a period of 3 years or longer under this rule, the petitioner must demonstrate to the referee that the petitioner is current with changes and developments in the law:

(i) The petitioner must have completed at least 10 hours of continuing legal education courses for each year or portion of a year that the petitioner was ineligible to practice.

(ii) The petitioner may further demonstrate that the petitioner is current with changes and developments in the law by showing that the petitioner worked as a law clerk or paralegal or taught classes on legal issues during the period of ineligibility to practice.

(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).A petitioner must have proof of passing all these required portions of the bar examination before that petitioner may file a petition for reinstatement under this subdivision.

(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 other persons who may be designated by the appointed referee.

(2)Appearance. Any persons to whom notice is given, any other interested persons, or any local bar association may appear before the referee in support of or in opposition to the petition at any time or times fixed for the hearings.

(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 the 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 any 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

The Florida Bar.

(5)Evidence of Treatment or Counseling for Dependency or Other Medical Reasons. If the petitioner has sought or received treatment or counseling for chemical or alcohol dependency or for other medical reasons that relate to the petitioner's fitness to practice law, the petitioner must waive confidentiality of such treatment or counseling for purposes of evaluation of the petitioner's fitness. The provisions of rule 3-7.1(d) are applicable to information or records disclosed under this subdivision.

(h) Prompt Hearing; Report. The referee to whom a petition for reinstatement has been referred by the chief justice will proceed to a prompt hearing, at the conclusion of which the referee will make and file with the Supreme Court of Florida a report that includes the findings of fact and a recommendation as to whether the petitioner is qualified to resume the practice of law. The referee must file the report and record in the Supreme Court of Florida.

(i) Review. Review of referee reports in reinstatement proceedings must be in accordance with rule 3-7.7.

(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 on the payment of all or part of the costs of the proceeding and on 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, if suspension or incapacity of the petitioner has continued for more than 3 years, the reinstatement may be conditioned on proof of competency as may be required by the judgment in the discretion of the Supreme Court of Florida. Proof 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 on 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)Availability. Petitions for reinstatement under this rule are available to members placed on the inactive list for incapacity not related to misconduct and suspended members of the bar when the disciplinary judgment conditions their reinstatement upon a showing of compliance with specified conditions.

(2)Style of Petition. Petitions must be styled in the Supreme Court of Florida and filed with the Supreme 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

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) name, age, residence, address, and number and relation of dependents of the petitioner;

(B) the conduct, offense, or misconduct on 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 these disciplinary proceedings or of the trial judge, complaining witnesses, and prosecuting lawyer, if suspension was based on 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 these relations and employments;

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

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

(G) a statement showing all financial obligations of the petitioner including, but not limited to, amounts claimed, unpaid, or owing to The Florida Bar Clients' Security Fund or former clients at the date of filing of the petition, together with the names and addresses of all creditors;

(H) a statement of restitution made for any and all obligations to all former clients and the Florida Bar Clients' Security Fund and the source and amount of funds used for this purpose;

(I) a statement showing dates, general nature, and ultimate disposition of every matter involving the arrest or prosecution of the petitioner during the period of suspension for any crime, whether felony or misdemeanor, together with the names and addresses of complaining witnesses, prosecuting lawyers, and trial judges;

(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, for each 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 these charges;

(M) a concise statement of facts claimed to justify reinstatement to The Florida Bar;

(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 this 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. On 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 other persons 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 the proposed reinstatement on the administration of justice and purity of the courts and confidence of the public in the profession.

(5)Costs Deposit. The petition must be accompanied by a deposit for costs of $500.

(m) Costs.

(1)Taxable Costs. Taxable costs of the proceedings must include only:

(A) investigative costs, including travel and out-of-pocket expenses;

(B) court reporters' fees;

(C) copy costs;

(D) telephone charges;

(E) fees for translation services;

(F) witness expenses, including travel and out-of-pocket expenses;

(G) travel and out-of-pocket expenses of the referee;

(H) travel and out-of-pocket expenses of counsel in the proceedings, including the petitioner if acting as counsel; and

(I) an administrative fee in the amount of $1250 when costs are assessed in favor of the bar.

(2)Discretion of Referee. The referee has discretion to award costs and, absent an abuse of discretion, the referee's award will not be reversed.

(3)Assessment of Bar Costs. The costs incurred by the bar in any reinstatement case may be assessed against the petitioner unless it is shown that the costs were unnecessary, excessive, or improperly authenticated.

(4)Assessment of Petitioner's Costs. The referee may assess the petitioner's costs against the bar in the event that there was no justiciable issue of either law or fact raised by the bar unless it is shown that the costs were unnecessary, excessive, or improperly authenticated.

(n) Readmission; Applicability. A former member who has been disbarred, disbarred on consent, or whose petition for disciplinary resignation or revocation has been accepted may be admitted again only upon full compliance with the rules and regulations governing admission to the bar. No application for readmission following disbarment, disbarment on consent, or disciplinary resignation or revocation may be tendered until such time as all restitution and disciplinary costs as may have been ordered or assessed have been paid together with any interest accrued.

(1)Readmission After Disbarment. Except as might be otherwise provided in these rules, no application for admission may be tendered within 5 years after the date of disbarment or such longer period of time as the court might determine in the disbarment order. An order of disbarment that states the disbarment is permanent precludes readmission to The Florida Bar.

(2)Readmission After Disciplinary Resignation or Revocation. A lawyer's petition for disciplinary resignation or revocation states that it is without leave to apply for readmission will preclude any readmission. A lawyer who was granted a disciplinary resignation or revocation may not apply for readmission until all conditions of the Supreme Court order granting the disciplinary resignation or revocation have been complied with.

Comment

To further illuminate the community service requirements of

Rule

rule 3-7.10(f)(3)(G), bar members can take guidance from the Florida Supreme Court's decision inFlorida Board of Bar Examiners re M.L.B., 766 So. 2d_994, 998-999 (Fla. 2000). The court held that rules requiring community service "contemplate and we wish to encourage positive actions beyond those one would normally do for self benefit, including, but certainly not limited to, working as a guardian ad litem, volunteering on a regular basis with shelters for the homeless or victims of domestic violence, or maintaining substantial involvement in other charitable, community, or educational organizations whose value system, overall mission and activities are directed to good deeds and humanitarian concerns impacting a broad base of citizens."

Court decisions dealing with reinstatements and other discipline provide further guidance as to what specific actions meet the test of community service. The court approved dismissal of a petition for reinstatement where the respondent had no community service and had devoted all her time during suspension to raising her young children.Fla. Bar v. Tauler, 837 So.2d 413 (Fla. 2003). In a more recent decision, the court did not specifically mention lack of community service in denying reinstatement, but the respondent had shown no evidence of work for others outside his family in his petition. Respondent's community service consisted solely of taking care of his elderly parents and his small child.Fla. Bar v. Juan Baraque, 43 So.3d 691 (Fla. 2010).

RULE 3-7.11 GENERAL RULES OF PROCEDURE

(a) Time is Directory. Except as provided

herein

in this rule, the time intervals required are directory only and are not jurisdictional. Failure to observe

such

these directory intervals may result in contempt of the agency having jurisdiction or of the Supreme Court of Florida, but will not prejudice the offending party, except where

so

provided.

(b) Process. Every member of The Florida Bar

is charged with notifying

must notify The Florida Bar of any change of mailing address, e-mail address (unless the lawyer has been excused by The Florida Bar or

court

the Supreme Court of Florida from e-filing and e-service), and military status. The Florida Bar may serve notice of formal complaints in bar proceedings by certified U.S. Postal Service

certified

mail return receipt requested to the bar member's record bar address unless the Supreme Court of Florida directs other service. Every lawyer of another state who is admitted pro hac vice in a specific case before a court of record in Florida may be served by certified U.S. Postal Service

certified

mail return receipt requested addressed to