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In re: Amendments to the Rules Regulating The Florida Bar – Attorney Misconduct
SC05-1684


WE WILL TAKE NOW THE LAST CASE, WHICH IS THE AMENDMENTS TO RULES REGULATING THE FLORIDA BAR, SPECIFICALLY GOVERNING RULES 3-5.2 AND 3-7.2.

MAY IT PLEASE THE COURT. GOOD MORNING, YOUR HO NORS . MAURICE SILVERSTEIN , FROM THE FLORIDA BAR BOARD O F GOVERNORS THE DISCIPLINARY COMMITTEE AND H ER E WITH THEFLORIDA BAR REQUESTING THE COURT APPROVE OUR PE TITION TO THE RULES --

CHIEF JUSTICE: THESE CAME AS A RESULT OF THE COURT, REALLY, ASKING FOR ASSISTANCE WHERE WE SAW INCONSISTENCY , AND IT LOOKSLIKE MOST OF THESE RULES HAVE ADDRESSED THOSECONCERNS.

ABSOLUTELY , YOUR HONOR . THE COURT'S LETTER OF NOVEMBER 14, WHICH IS ATTACHED , NO VEMBER 16 , '04 , ATTACHED TO OUR PETITION , SETS FORTH THE COURT'SCONCERNS ABOUT THE 60-DAYS T IME LIM ITATION T O F ILE A FORMAL COMPLAINT.

JUSTICE: I DO HAVE A QUESTION CONCERNING, AND IWOULD LIKE FOR YOU, TWOQUESTIONS. ONE , THE PRACTICAL APPLICATION OF HAVING THE STATES ATTORNEY MAKE THESE NOT ICES TO THE BAR , WH ETHER THAT I S GOING TO BE SOMETHING THAT IS HONOR ED . AND SECONDLY , WHY WOULD WE REQUIRE NOTICE OF MISDEMEANOR S TO THE BAR ? CHANGE THAT RULE FROM R ATHER THAN JUST FELONS?

LET ME TAKE THEM IN THE REVERSE IF I MAY , YOURHONOR.THANK YOU. THE MISDEM EANOR IS JUST A REPORTING REQUIREMENT ASOPP OSED TO A GROUND FLOOR AUTOMATIC SUSPENSION , AND THE SPEC IAL PERMISSION ON LAWYER REGULATION HAD CONSIDERED THE ISSUE, AND FRANKLY THOUGHT THAT THE H IGHER LEVEL OF SCRUTINY THAT ALL LAWYERS IN THESTATE OF FLORIDA ARE SUBJECTTO , SHOULD REQUIRE NO LESS THAN REPOR TING E VEN I N CASES OF MISDEMEANORS .

JUSTICE: THERE ANY DISCIPLINE INVOLVED WITH THE COMMISSION OF A MISDEMEANOR? D OES THAT VIOLATE ANY RULES OF PROFESSI ONAL CONDUCT?

NOT IN AND OF ITSELF.

JUSTICE: THEN WHY WOULD A LAWYER HAVE TO REPORT THEFACT THAT HE COMMITTED A MISDEMEANOR OR HAS BEEN ACCUSED OF COMMIT TING O N E?

IS THERE ANYTHING YOU CAN ASSIST ME WITH ON THAT?

THE RULES DO PROVIDE THAT V IOLATION OF ANY CRIMINAL STATUTE COULD BE A REASON FOR DISCIPLINE. THE SPECIAL MA TTERS . IT IS MY UNDERSTANDING THAT IT IS NOT ADDR ESSED .

JUSTICE: I AM NOT UNDERSTANDING YOU.

I AM SORRY. THE RULES DO ALLOW FOR ANY CRIMINAL VIOLATION TO BE SUBJECT TO DISC IPLINE, BUT WE DO NOT APPLY DISCIPLINE TO MINOR VIOLATIONS. FOR EXAM PLE , PUBLIC INTOXICATION WITH OUT ANY OTHER INVO LVEMENT WITH THE LAW . THIS IS DESIGNED TO GIVE US NOTICE. IT IS EASIER TO ASK FOR NOTICE THAN TO SAY WE WANT NOTICE ON THESE CHARGES AND NOT THESE AND THOSE BUT NOTOTHERS.

CHIEF JUSTICE: SO THEREARE SOME MISDEM EANORS THAT ARE SUBJECT TO SANCTIONS .

YES.

CHIEF JUSTICE: IS THIS ACHANGE? THIS RULE WOULD DO SOMETHING THAT IS NOT, THIS PART OF THE RULE , THAT IS NOT CURRENTLY REQUIRED?

RIGHT. THE NOTICE REQU IREMENT IS NEW.

JUSTICE: THESE TWO ISSUES DOVETAIL THE TWO QUESTIONS THAT JUSTICE WELLS ASKED , BECAUSE IF YOU ARE REQUIRINGNOTICE OF MISDEMEANORS , THEN YOU ARE ASKING PROSECUTORS TO NOTIFY THE BAR O F MISDEMEANORS.

NO.

JUSTICE: NO?

FELO NIES F YOU TAKE, THE COURT PER USEES UNDER 3 72 , U NDER THE NOTICE REQUIREMENTS, THE LAST PART OF SUBC IS NOTIFICATION BY THE STATE ATTORNEY TO THEFLORIDA BAR OF THE FILING OF A CHAR GE.

JUSTICE: QUITE FRANKLY MY CON CERN ABOUT THAT IS, AGAIN, WHETHER IT IS GOING TO BE HONORED IN THE BREACH, AND THAT IS THAT I HATE TO SEE US HAVE RULES I N WHICH THEREIS NO REASONABLE , REALLY , NO REASON ABLE INTENT THAT THEY ARE GOING TO B E ENFORCED . AND TO SAY THAT A LAWYER IS GOING TO HAVE TO REPORT THESE VIOL ATIONS OF C ITY ORDINANCES WHICH COULD BE CRIMINAL IN NATURE OR THAT TYPE OF THING , I AM CONCERNED WE ARE JUST GOING TO GET PE OPLE THAT COMPLY WITH THE RULES , BUT WE ARE NOT GOING TO EN FORCE IT AGAINST PEOPLE THAT DON'T .

YOUR HONOR , FIRST OF ALL WITH REGARD TO THE NOTICE OF A CHARGE, IT IS ONLY A FELONY. THAT IS UNDE R THE LAST PART OF SUBC, AND THEN SECONDLY I THINK -- SUB-C, AND THEN SECONDLY I THINK THE COURTNEEDS TO UNDERSTAND THAT, IF THE STATE ATTORN EY IS AWARE , S O IT IS SOME WHAT LESS STRINGENT IN THE SENSE THAT THERE IS NO AFFIRMATIVE OBLIGATION ON THE PART OF THE STATES ATTORNEYS TO GO OUT AND MAK E AN INVESTIGATIVE EFFORT.

JUSTICE: THERE IS ON THE INDIVIDUAL ME MBER OF THE BAR.

CORRECT AND THAT IS THE DISTINCTION AND MR . JACOBS CAN ADDRESS THE QUESTION AS TO THE PRACTICAL AS PECTS OF HOW DIFFICULT IT MAY OR MAYNOT BE IN ALL CASES TO REPORT AND FILE A NOTICE OF A CHARGE AND THEN ALSO FILE NOTICE AFTER CONVICTION.

FIRST , I AM GRATEFUL THATYOU ALL READ MY LETTER , WHICH IS A APPENDIX TO THE LARGE VOL UM E OF INFORMATION H ERE. CHIEF 2004.

WE HAVE BEEN DEBATING THIS FOR A WHI LE AND THE BAR , WE HAVE BEEN BACK AND FORTH ON THIS AND WE THINK THIS IS A GOOD COMPROMISE. I F WE ARE AWARE OF IT , WE SHOULD TELL YOU ABOUT IT. IF WE ARE NOT, WE SHOULDN'T BE HE LD TO THE OBLIGATION TO POLICE 76,000 LAWYERS IN FLORIDA.

CHIEF JUSTICE: YOU AREOKAY WITH IT.

YES, MA' AM AND WE APPRECIATE THE COOPERATIONWITH THE BAR ON THAT, AND, AGAIN, IT IS ONLY FELONIES AND ONLY IF WE ARE AW ARE.

CHIEF JUSTICE: T HANK YOU V ERY MUCH, MR . J ACOBS.

JUSTICE: THAT IS AS FARAS THE STATES ATTORNEYS ARECONCERNED.

WITH REGARD TO THE OTHER REQUESTED AMENDMENTS, I AM PREPARED TO ADDRESS ANY CONCERNS --

CHIEF JUSTICE: THE ONLY THING I AM TRYING TO FI GURE OUT AND MAYBE THIS IS FOR MR WE HAVE NOW WHERE IT HAPPENSTHAT IF SOMEBODY M O VES TO LIFT THE STAY OF AN EMERGENCY SUSPENSION, AND IT WOULD BE REFERRED TO A REFEREE WHO HAS TO RE NDER A D ECISION IN 60 OR ON THE D AYS.

6 0.

CHIEF JUSTICE: AT THESAME TIME WITHIN 60 DAYS,THERE WOULD BE A CHARGE FILED ON THE UNDERLYING CASE , SO FROM THE PRACTICAL POINTOF VIEW , IS THE REF EREE GOING TO HAVE TO BE DOING THIS TWICE ? IN OTHER WO RDS MY INTE REST W OULD BE TO SEE HO W, WHETHER THIS RULE IS GOING TO WORKIN A WAY THAT WE CAN JUST HAVE ONE DETERMINATION ON AN EXPEDITED BA SIS , CERTAINLY FOR A FELONY DETERMINATION , THAT, WHETHER IT SHOULD BE THE SUS PENSION SHOULD REMAIN IN EF FECT AND HOW LONG. SO MAYBE MR . BOGGS, DO YOU UNDERSTAND WHAT I AM SAYING , THAT WE ARE NOT HAVING, WHAT WE WERE HAVING IN THE PAST WERE THESE PROCEEDINGS WHERE THE , WE WOULD GET A RECOMMENDATION ON THE SUSPENSION, AND I T WAS SIXMONTHS LATER, AND THE UNDERLYING CHARGE HADN'T BEEN FILED .

I UNDERS TAND YOUR QUESTION. WHAT WE HAVE DONE IS TO TAKE THE REQUIR EMENTS OF THE FELONY CONV ICTION RULE AND TO MI RROR THE CURRENT EXISTING REQUIREMENTS FOR EMERGENCY SUSPEN SIONS, AND THAT IS THE NOTICE OF JUDGMENT OF GUILT WI LL BE FILED. THE ENT RY OF THE ORDER OF SUSPENSION WOULD OCCUR, AND THEN THE FAST TRACK OR THE T RIAL WOULD OCCUR , HONORING THE CONVICTION , E VEN THOUGH THE CONVICTION MAY BE ON APPEAL, SO THE REFE REE MAKESA RECOMMENDATION AND THAT COMES TO THE COURT, AND THE COURT WOULD RULE UPON IT.

CHIEF JUSTICE: HOW ABOUT THE ONE WHERE THE REFERRAL FOR THE REFEREE , IF , IS ASKED FOR A LI STING OF THE SUSPENSION, IS G OING TO O CCUR INDEPENDENTLY TO THE REFERRAL TO THE REFEREE FOR THE , WHEN YOU FILE THE CASE?

THE RULE DOES NOT ANY LONGER CONTEMPLATE THE ABILITY TO LIFT A SUSPENSION DURING THE COURSE OF AN APPEAL. IF THERE IS A CONVICTION IN PLACE , THE RULE GIVES FULL FAITH AND CREDIT TO THAT CRIMINAL CONVICTION , UNLESS AND UNTIL IT IS OVERTURNED IN THAT FUNCTION.

CHIEF JUSTICE: THE COURT MAY CONSIDER, THOUGH , FOR SOME SPECIFIC REASON THAT WE WANT TO HAVE A FACTUAL DETERMINATION ON SOME THING. WE MAY REFER IT.

RIGHT. BUT THIS RULE AS PROPOSED TO YOU , PRESUPPOSES THE ENTRYOF THE ORDER O F SUSPEN SIONAND THEN THE REFERRAL TO THE REFEREE FOR CONSIDERATION OF THOSE ISSUES AND QUESTI ONS THAT THE CO URT MAY HAVE, BUT DURING THE INTERIM , THERE WOULD BE THE SUSPENSION.

CHIEF JUSTICE: YOU WOULD CONTEMPLATE BOTH THINGS TO BE AT THE SAM E TIME, WHETHER THEY, IT STAY S IN EFFECT ANDHOW LONG THE SUSPENSION WOULD BE FOR.

CORR ECT. NOW, THE REFEREE WOULD MAKE A RECOMMENDATION BACK TO THECOURT, ADDRESSING ANY CONCERNS EXPRESSED B Y THE COURT AND ANY ULTIMATE LONG-TERM SANCTIONS TO BE IMPOSED .

CHIEF JUSTICE: WE JUST NEED TO MAKE SURE OUR CLERK AND THE BAR IS IN SYNC ON THAT.

Y ES.

JUSTICE: COU LD I ASK A QUESTION. ON THE , SOME ONE WHO PLEADS NO CONTEST , WE HAVE A WITHHELD OF ADJUDICATION , PARTICULARLY THE FE DERAL COURT, AND IT HAPPENS IN THE STATE COURT BECAUSE OF MINIMUM MANDATORY SENTENCING. THERE ARE OFTENTIMES WHAT WE CALL PLEAS OF CONVENIENCE. I DON'T HAVE ANY PRO BLEM WITH EMER GENCY SUSPENSION , WHATEVER, BUT IS IT, WHAT IS YOUR UNDERSTAND ING OF THESE R ULES AS TO THE CONCLUSIVE NESSAS TO G UILT ? BECAUSE A CONVICTION FOR THE FEL ONY ON A WITH HOLD OF ADJUDICATION OR A NOLO PLEA,IS NOT NECESSARILY CONCLUSIVENESS OF GUILT IN MY MI ND.

UNDER THE PROP OSAL, A CONVICTED ATTOR NEY IS DEFINED IN THE RULES AS SOMEONE WHO HAS ENTERED A PLEA OF GUI LTY , BEEN FOUND GUILTY BY A BE NCH TR IAL , FOUND GUIL TY BY A JURY TRIAL OR IS UNDER A PLEA OF NO CONTEST. THAT IS A DEFINITION OF A DETERMINATION OF GUILT AND A CONVICTED ATTORNEY HAS HAD DETERMINATION OF GUILT ENTERED AGAINST HIM OR HE R. THE EFFE CT OF A NO CONTESTPLEA FOR PURPOSES OF CIVILPROCEEDINGS , I S ESSENTIALLY , EXCUSE ME, FOR PUR POSES OF A DISCIPLINE PROC EEDING, ESSENTIALLY THE SAME AS THE EFFECT OF A GUILTY PLEA. A LAWYER HAS A CRIME ON HIS OR HER RECORD , AND THESE RULES DON'T GIVE ANY DIFFERENCE TO THE DISTINCTION BETWEEN THOSE TWO-WAYS IN WHICH THAT CRIME STANDS IN THE LAWYER'S RECORD. THE ULTIMATE END THAT WE ARE ADDRESSING HERE IS NOT THE METHOD BY WHICH WE GOT THECRIMINAL CONVICTION OR THE DECISION.

CHIEF JUSTICE: OKAY. ANY OTHER QUESTIONS? D O WE HAVE ? I THINK WE ARE OUT OF T IME.

THANK YOU, YOUR HONOR.

CHIEF JUSTICE: D O YOU HAVE ANYTHING?

LET ME JUST BRIEFLY, JUSTICE BELL, THAT PART OF THE RULE HASN'T CHANGED , W ITH REGARD TO WITHHOLD CONSTITUTE AGO DETERMINATION OF GUILT. THAT HAS BEEN PART OF THE RULE THAT IS NOT SUBJECT TO WHAT WE ARE SEEKING TO AMEND.

CHIEF JUSTICE: THANK YOU VERY MUCH.