IN THE SUPREME COURT OF FLORIDA. THE FLORIDA BAR: IN RE PETITION TO AMEND THE RULES REGULATING THE FLORIDA BAR [Rules and 3-7.

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1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR: IN RE PETITION TO AMEND THE RULES REGULATING THE FLORIDA BAR [Rules and 3-7.2] / SC No. PETITION TO AMEND THE RULES REGULATING THE FLORIDA BAR THE FLORIDA BAR, pursuant to rule , Rules Regulating The Florida Bar, hereby petitions this court for an order amending and 3-7.2, Rules Regulating The Florida Bar and states: I 1. This petition has been authorized by the Board of Governors of The Florida Bar. II 2. The amendments proposed herein were specifically approved by the board on April 8, 2005 (rule 3-5.2) and August 26, 2005 (rule 3-7.2).

2 III 3. The amendments proposed herein were considered upon the request of this court as relayed to The Florida Bar by the clerk of the supreme court by letter dated November 16, Subsequently the deadline for filing a report with the clerk was extended to July 1, 2005 and further extended to September 15, 2005, on request of the bar. Copies are attached as exhibit A. IV Chapter 3 Rules of Discipline Subchapter 3-5 TYPES OF DISCIPLINE Rule Emergency suspension and interim probation Explanation: The proposed amendments: Subdivisions (a) and (b) - separate the bases for emergency suspension from interim probation and clarify interim probation; subsequent subdivisions are renumbered accordingly; Subdivision (e) - restate and clarify that the bar must file a follow-up formal complaint within 60 days of the emergency order, but remove

3 language inconsistent with subdivision (f) regarding the time for trial on the complaint; Subdivision (f)(1) - provide that a motion to dissolve an emergency order does not act as a stay of such emergency order; Subdivision (f)(4) - remove language, regarding the time to file the follow-up complaint and stay, made redundant by the amendment to (f)(1); and Subdivision (g) - remove language concerning the time a referee has in which to file a report following the entry of this court's order on a motion to dissolve the emergency order as no longer applicable due to removal of language about a stay from elsewhere in the rule. Reasons: Because of concerns that the process of seeking and securing an emergency order frequently took an inordinate amount of time from the filing of a petition to entry of an emergency order and the trial of a follow-up complaint (particularly if a motion to dissolve the emergency order has been filed), these amendments propose to streamline the process of seeking such emergency orders, but maintain the requirement for prompt hearings and provision of due process to the respondent. Specifically, the proposal distinguishes between emergency suspension and interim probation by segregating authority for both into subdivisions (a) and (b). The

4 amendments contemplate that upon a proper filing the court will enter an emergency order and that the respondent may challenge the entry of such order by a motion to dissolve but not may not stay the entry of that order. To satisfy due process the rule maintains the prompt hearing on the motion to dissolve (the referee has 7 days from appointment in which to hold a hearing on the motion and 7 days after the hearing in which to render a report) and continues the requirement of filing the follow-up complaint within 60 days of the entry of the emergency order, without regard to whether a motion to dissolve has been filed. Further, the proposed amendments provide due process by requiring that a report of referee is entered within 90 days of appointment of the referee, again without regard to whether a motion to dissolve has been filed. Source: Disciplinary Procedure Committee on referral of the court. Commentary/Collaboration: January 21, 2005 favorably reported by the Special Commission on Lawyer Regulation. A copy of an excerpt of the minutes of the January 20-21, 2005 meeting of the special commission is included in exhibit B. Committee Action: Disciplinary Procedure Committee approved by a vote of 7-0 on January 13, 2005; Rules Committee favorably reported by e- mail/fax ballot of 6-0 on March 14, 2005.

5 2005. Board Action: Favorably reported on the consent calendar on April 8, Board Dissent: None. Chapter 3 Rules of Discipline Subchapter 3-7 PROCEDURES Rule Procedures upon criminal for professional misconduct; discipline upon determination or judgment of guilt of criminal misconduct Explanation: The proposed amendments: Subdivision (a) - expand the definition of "determination of guilt" to include pleas of guilty or no contest, bench verdicts, and jury verdicts; Subdivision (c) - require notice by an arrested member within 10 instead of 30 days; Subdivisions (c)-(e) - require notice of determination or adjudication of guilt from the trial judge, clerk of the court, convicted attorney, and the state attorney; Subdivision (f) - conform text to proposed amendments elsewhere;

6 Subdivision (g) - delete subdivisions (1) and (2) and adds that, consistent with amendments to 3-5.2, a motion to modify or terminate a felony suspension does not stay entry of an order of suspension under this rule; former subdivision (g) deleted; Subdivision (h) - add provisions for appointment of a referee upon the entry o the suspension order and includes timelines for separate hearings on a petition for sanctions or a motion to terminate or modify the suspension; delete redundant current subdivisions (h) and (i); Subdivision (i) - clarify that a suspension will remain in effect during any appeal of a criminal conviction; Subdivision (j) - provide for expunction of any suspension entered based on a criminal matter disposed of by dismissal or acquittal; Subdivision (k) - allow a respondent to waive time requirements; and Generally - revise all affected subdivision titles and renumber subdivisions where appropriate. Reasons: Based on concerns similar to those expressed regarding rule these amendments are proposed to provide for an automatic suspension based on felony conduct when there has been a determination or adjudication of guilt, without the ability for the attorney to stay the entry of such order of suspension. Once the order of suspension is entered a prompt

7 follow-up action must be initiated, whereas the current rule does not mandate any follow-up proceeding. The proposed amendments require enhanced notice from the lawyer who is charged with criminal conduct, and from the trial judge, the clerk of court and the state attorney in cases of felony criminal conduct. Based on that notice the amendments allow the filing of a notice of guilt in felony cases, require the entry of a suspension when the notice is in proper form, and provide for the entry of a suspension without a stay thereof. In order to satisfy due process the rule amendments require, for the first time, the filing of a follow-up complaint within 30 days of the entry of the felony conviction suspension. Also, as a matter of due process, the amendments allow the convicted attorney to file a motion to terminate or modify the felony conviction suspension. If the motion is filed, the amendments require the appointment of a judicial referee and a hearing within 7 days of appointment in a report within 7 days of the hearing concerning whether the motion should be granted. The concepts of these rule amendments provide for an interim sanction and prompt post-sanction hearing similar to that as proposed in rule Source: Disciplinary Procedure Committee on referral of this court.

8 Commentary/Collaboration: January 21, 2005, favorably reviewed by the Special Commission on Lawyer Regulation; November 8, 2004, reviewed by the Florida Prosecuting Attorneys Association and viewed as unnecessary regarding the reporting requirement. A copy of an excerpt of the minutes of the special commission s January 20-21, 2005 meeting and a copy of the letter of the FPAA are attached as exhibit B. Committee Action: Disciplinary Procedure Committee approved by a vote of 7-0 on June 2, 2005; Rules Committee favorably reported by voice vote of 6-0 on August 8, Board Action: Approved by the board of governors by unanimous voice vote on August 26, Board Dissent: None. V Formal notice of intent to file this petition was published in the August 1, 2005 edition of The Florida Bar News. A copy of such notice, as downloaded from the bar s website, is attached as exhibit C. VI

9 In preparation for filing with the court an incorrect rule reference was noticed in (fg) Hearings on Formal Complaints. The reference in the first paragraph of the rule subdivision should be to rather than This statutory revision style amendment has been included in the corrected amendments attached as exhibit D. VII The bar has not received any comments regarding these proposed amendments other than those referenced in section IV, above. Interested persons may file comments with this court for a period of 30 days that commences upon the filing of this petition and ends October 14, The bar does not seek oral argument on any proposed change. VIII The full text of the proposed amendments is followed in this document by separate 2- column formatted amendments as exhibit E.

10 IX In anticipation that additional comments may be filed in response to this petition, The Florida Bar requests leave to file one consolidated reply to all such comments, no later than 20 days after the 30-day period for comments has expired. See rule (g). WHEREFORE, The Florida Bar prays this court will enter an order amending the Rules Regulating The Florida Bar in the manner sought herein and effective 30 days after entry of the court s order.

11 Respectfully submitted, John F. Harkness, Jr. Executive Director Florida Bar Number Alan B. Bookman President Florida Bar Number Henry M. Coxe III President-elect Florida Bar Number Murray B. Silverstein Chair, Disciplinary Procedure Committee Florida Bar Number John Anthony Boggs Director, Legal Division-Lawyer Regulation Florida Bar Number The Florida Bar 651 E. Jefferson Street Tallahassee, FL /

12 CERTIFICATE OF TYPE SIZE AND STYLE The Florida Bar Hereby Certifies that this petition is typed in 14 point Times New Roman Regular type.

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U. S. Mail on this 15th day of September, 2005 to: Arthur I. Jacobs Florida Prosecuting Attorneys Association Gateway Boulevard Suite 201 I Fernandina Beach, FL John Anthony Boggs Director, Legal Division-Lawyer Regulation Florida Bar Number

14 EXHIBIT A

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25 EXHIBIT B

26 EXCERPT FROM SPECIAL COMISSION ON LAWYER REGULATION January 20-21, 2005 Meeting Midyear Meeting - Miami Members Participating: Hank Coxe Dr. Chuck Badger Roddie Bailey Judge Chavies (20 th only) Judge Chavies Steve Chaykin Anita Cream Staff: Tony Boggs Ken Marvin Arlene Sankel Eric Turner Rosalyn Scott Major Harding Dr. Vivian Hobbs (21 st only) Don L. Horn (21 st only) Judge Kahn Judge Leesfield Evan Marks John Noland (21 st only) Edith Osman (20 th only) Gregory S. Parker (21 st only via telephone conference) Pamela Perry David Rothman Murray Silverstein Judge Stone Tim Sullivan William Vose William White Kathleen Williams * * * 3. Supreme Court Issues

27 A. Follow-up complex to emergency suspensions. The commission was advised that the court had expressed concern about time limits for processing formal complaints being tolled when emergency suspension is sought and modification or termination is pursued by the respondent. The commission was advised that the disciplinary procedure committee was actively reviewing rule and was expected to propose changes in the rule designed to avoid the delay that was a source of the court's concern. After discussion, the Commission concurred with the expected action of the committee. B. Procedures on criminal convictions. Rule was referred to the special commission by the disciplinary procedure committee. This referral was due to concerns expressed that the rule allowed for too much time for a convicted attorney to remain in the practice of law and that there should be a hearing and conclusion in an expedited fashion. The DPC had directed staff to redraft the rule providing for the imposition of an automatic suspension following the filing of a notice of determination of guilt and then an immediate or prompt hearing on sanctions following such suspension and wanted thee Commission s input. Discussion included: *when should an automatic suspension be imposed? *what is adjudication? *effect of judge s finding of guilt before judgment and sentencing? *effect of jury verdict? *effect of a plea Who notifies the bar and/or the court? Judge Clerk Prosecutor Convicted attorney Stay of Suspension upon plea upon verdict or judicial finding of guilt current rule allowing within 10 days of notice of guilt if no auto stay should respondent have the right to seek to modify or vacate upon reversal burden on reversal should rest with the movant Motion made should respondent have burden 1 voted no 17 voted yes

28 Motion made should movant have burden 4 oppose total 18 votes The Commission s recommended amendments to rule are attached. C. Notification of felony convictions. The court has noted that an attorney convicted of a felony must notify the court and the bar of such conviction within 30 days. The court also noted that no such time frame exists for notice from the trial court or clerk of the trial court and is concerned as to whether other individuals or entities should be required to provide notice as well. The Commission was advised that the DPC has this issue under review in connection with a review of rule After debate, it was determined that specific recommendations of the Commission would be referred to the DPC for its consideration. Specifically, the DPC should be advised that the Commission recommends: all notices required under this rule should be given within 30 days; that the state attorney should give notice of the imposition of felony charges and of the entry of a conviction on felony charges, if the defendant is known to be a member of the bar. Commission members Horn and Vose advised the Commission that they were of the opinion that their particular offices would not object to such a notice requirement. * * *

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30 EXHIBIT C

31 August 1, 2005 Bar rules proposals to be filed The Board of Governors of The Florida Bar hereby gives notice of filing with the Supreme Court of Florida, on or about September 15, a petition to amend selected portions of rules and of the Rules Regulating The Florida Bar. These proposed amendments are submitted at the request of the Supreme Court of Florida. The full text of the proposed amendments is printed below. These items were favorably recommended by the Special Commission on Lawyer Regulation and the Disciplinary Procedure Committee of the Board of Governors of The Florida Bar. A copy of this submission may be requested by contacting Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee ; to rscott@flabar.org or call (850) The Bar s customary submission of suggested rule amendments developed over the past year should be filed with the court in January That consolidated package of proposals will be similarly noticed at least 30 days prior to its filing. Members who desire to comment on the currently proposed amendments to these two rules may do so within 30 days of the filing of the Bar s petition. Comments should be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule , Rules Regulating The Florida Bar, governs these proceedings. RULES REGULATING THE FLORIDA BAR *** RULE EMERGENCY SUSPENSION AND INTERIM PROBATION (a) Initial Petition for Emergency Suspension. 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 unrebutted, would establish clearly and convincingly that an attorney appears to be causing great public harm, the Supreme Court of Florida may issue an order imposing emergency conditions of probation on said attorney or suspending said attorney on an emergency basis.

32 (b) Petition for Interim Probation. 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 unrebutted, would establish clearly and convincingly that conditions or restrictions on an attorney 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 attorney on interim probation, the conditions of which shall be provided in rule 3-5.1(c). (bc) Trust Accounts. Any order of emergency suspension or probation that restricts the attorney in maintaining a trust account shall, when served on any bank or other financial institution maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent said bank or financial institution from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the court. (cd) New Cases and Existing Clients. Any order of emergency suspension issued under this rule shall 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 such emergency order. Any fees paid to the suspended attorney during the 30-day period shall be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court. (de) Filing of Formal Complaints. The Florida Bar shall file a formal complaint within 60 days of the emergency order and proceed to trial of the underlying issues, without the necessity of a finding of probable cause by either a grievance committee or the board of governors. (ef) Motions for Dissolution. (1) The attorney 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. Such motion shall operate as anot stay of 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, shall immediately be assigned to a referee designated by the chief justice. The filing of such motion shall not stay the operation of an order of emergency suspension or interim probation entered under this rule. (2) The referee shall hear such motion within 7 days of assignment, or a shorter time if practicable, and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing, or a shorter time if practicable. The referee shall recommend dissolution or

33 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 complaint. (3) Successive motions for dissolution shall be summarily dismissed by the supreme court to the extent that they raise issues that were or with due diligence could have been raised in a prior motion. (4) Upon receipt of the referee s recommended order on the motion for dissolution or amendment, the supreme court shall review and act upon the referee s findings and recommendations. If the court continues the order of emergency suspension or probation in any manner, The Florida Bar shall file a formal complaint, if one has not yet been filed, within 60 days of the continuance and proceed to trial of the underlying issues, without the necessity of a finding of probable cause by either a grievance committee or the board of governors. A continuance of the emergency suspension or probation dissolves the stay of other proceedings. (fg) Hearings on Formal Complaints. Upon the filing of a formal complaint based on charges supporting an emergency order, the chief justice shall appoint a referee to hear the matter in the same manner as provided in rule 3-7.5, except that the referee shall hear the matter and issue a report and recommendation within 90 days of appointment or, if the attorney has filed an unsuccessful motion for dissolution or amendment after the appointment of the referee, within 90 days of the supreme court=s continuance of the emergency order. This time limit shall apply only to trials on complaints in connection with which an emergency suspension or interim probation is in effect. If the time limit specified in this subdivision is not met, that portion of an emergency order imposing a suspension or interim probation shall be automatically dissolved, except upon order of the supreme court upon showing of good cause, provided that any other appropriate disciplinary action on the underlying conduct still may be taken. (gh) Proceedings in the Supreme Court of Florida. Consideration of the referee s report and recommendation shall be expedited in the supreme court. If oral argument is granted, the chief justice shall schedule oral argument as soon as practicable. (hi) Waiver of Time Limits. 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 PROCEDURES UPON CRIMINAL OR PROFESSIONAL MISCONDUCT; DISCIPLINE UPON DETERMINATION OR

34 JUDGMENT OF GUILT OF CRIMINAL MISCONDUCT (a) Definitions. (1) Judgment of Guilt. For the purposes of these rules, judgment of guilt shall include 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 shall include only 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 attorney has entered a plea of guilty to criminal charges, those cases in which the convicted attorney 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 Attorney. For the purposes of these rules, convicted attorney shall mean an attorney 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 upon trial of or plea to any crime or offense that is a felony under the laws of this state, or under the laws under which any other court making such determination or entering such judgment exercises its jurisdiction, shall be admissible in proceedings under these rules and shall be conclusive proof of guilt of the criminal offense(s) charged for the purposes of these rules. (c) Notice of Determination or Judgment of GuiltInstitution of Felony Criminal Charges. Upon the entry of a determination or judgment of guilt against a member of The Florida Bar by a court of competent jurisdiction upon trial of or plea to any offense that is a felony under the laws applicable to such court, such convicted attorney institution of a felony criminal charge against a member of The Florida Bar by the filing of an indictment or information, the member shall, within 3010 days of such determination or judgment the institution of the felony criminal charges notify the executive director of The Florida Bar of such determination or judgmentcharges. Notice shall include a copy of the order(s) whereby such determination or judgment was entereddocument(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

35 shall provide a copy of the indictment or information to the executive director. (d) Notice of Determination or Judgment of Guilt by Courts of the State of Floridaof Felony Charges. (1) Trial Judge. If any such determination or judgment is entered byin a court of the State of Florida, the trial judge or clerk thereof shall transmit, within 10 days of the date on which the determination or judgment is entered, give notice thereof to the Supreme Court of Florida and the executive director of The Florida Bar and shall include a certified copy of the order(s) wherebydocument(s) on which the determination or judgment was entered. (2) Clerk of Court. If any such determination or judgment is entered in a court of the State of Florida, the clerk thereof shall, within 10 days of the date on which the determination or judgment is entered, give notice thereof to the executive director and shall include a certified copy of the document(s) on which the determination or judgment was entered. (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 state attorney shall give notice of the determination or judgment of guilt to the executive director and shall include a copy of the document(s) evidencing such determination or judgment. (e) Notice by Members of Determination or Judgment of Guilt of All Criminal Charges. A member of The Florida Bar shall, within 10 days of entry of a determination or judgment for any criminal offense, notify the executive director of The Florida Bar of such determination or judgment. Notice shall include a copy of the document(s) on which such determination or judgment was entered. (ef) 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 counsel will file a Notice of Determination or Judgment of Guilt in the Supreme Court of Florida. A copy of the document(s) on which the determination or judgment is based shall be attached to the notice. Upon the filing of the notice with the Supreme Court of Florida by The Florida Bar and service of such notice upon the respondent of a notice of determination or judgment of guilt for offenses that are felonies under applicable law, the respondent shall stand suspended as a member of The Florida Bar on the eleventh day after filing of the notice of determination or judgment of guilt unless the respondent shall, on or before the tenth day after filing of such notice, file a petition to terminate or modify such suspension, as defined in rule 3-5.1(e).

36 (fg) Petition to Modify or Terminate Suspension. (1) At any time after the filing of a notice of determination or judgment of guilt, the respondent may file a petition with the Supreme Court of Florida to modify or terminate such suspension and shall serve a copy thereof upon the executive director. The filing of such petition shall not operate as a stay of the suspension imposed under the authority of this rule. (2) If such petition is filed on or before the tenth day following the filing of the notice, the suspension will be deferred until entry of an order on the petition. (3) If such petition is filed after the tenth day following the filing of the notice of judgment of guilt, the suspension shall remain in effect pending disposition of the petition. Modification or termination of the suspension shall be granted only upon a showing of good case. (g) Response to Petition to Modify or Terminate Automatic Suspension. The Florida Bar shall be allowed 20 days from the filing of a petition to modify or terminate automatic suspension to respond to the same. Bar counsel will oppose all petitions to modify or withhold an automatic suspension on a notice of determination or judgment of guilt unless the designated reviewer recommends and the executive committee concurs in not opposing such a petition. (h) Appointment of Referee. Upon the entry of an order of suspension, as provided above, the supreme court shall promptly appoint or direct the appointment of a referee. (1) Hearing on Petition to Terminate or Modify Suspension. The referee shall 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 shall 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 referee shall 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 shall be held and a report and recommendation shall be filed with the supreme court within 30 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

37 evidence and relevant matters of mitigation regarding the proper sanction to be imposed. The respondent may not contest the findings of guilt in the criminal proceedings. A respondent who entered a plea in the criminal proceedings may be 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. (hi) Term of Suspension.Appeal of Conviction. (1) Maximum Term of Suspension. Unless the Supreme Court of Florida permits an earlier application for reinstatement, the suspension imposed on the determination or judgment of guilt shall remain in effect for 3 years and thereafter until civil rights have been restored and until the respondent is reinstated under rule hereof. (2) Continuation During Appeal. A final termination of the criminal cause resulting in the affirmance of a determination or judgment of guilt shall continue the suspension until expiration of all periods for appeal and rehearing. (3) Continuation of Suspension Until Final Disposition. If an appeal is taken by the respondent from the determination or judgment of the trial court in the criminal proceeding, the suspension shall remain in effect during the appeal. and If, on review the cause is remanded for further proceedings, the suspension shall remain in effect until the final disposition of the criminal cause unless modified or terminated by the Supreme Court of Florida as elsewhere provided. (4j) Termination and Expunction of Suspension. A final disposition of the criminal cause resulting in acquittal will terminate the suspension. Upon motion of the respondent, the Supreme Court of Florida may expunge a suspension sanction entered under this rule when a final disposition of the criminal cause has resulted in acquittal or dismissal. (5) Effect of Expunction. A respondent who is the subject of a disciplinary history recordsanction that is expunged under this rule may lawfully may deny or fail to acknowledge the sanctions covered by the expunged record, except when the respondent is a candidate for election or appointment to judicial office, or as otherwise required by law. (i) Separate Disciplinary Action. (1) Initiation of Action. The Florida Bar may, at any time, initiate separate disciplinary action against the respondent. (2) Conclusive Proof of Probable Cause. A determination or judgment of guilt, where the offense is a felony under applicable law, shall constitute conclusive proof of probable cause and The Florida Bar may file a complaint

38 with the Supreme Court of Florida, or proceed under rule 3-7.9, without there first having been a separate finding of probable cause. (3) Determination or Judgment of Guilt as Evidence. A determination or judgment of guilt, whether for charges that are felony or misdemeanor in nature, shall be admissible in disciplinary proceedings under these rules, and in those cases where the underlying criminal charges constitute felony charges, determinations or judgments of guilt shall, for purposes of these rules, constitute conclusive proof of the criminal offense(s) charged. The failure of a trial court to adjudicate the convicted attorney guilty of the offense(s) charged shall be considered as a matter of mitigation only. (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. (jl) Professional Misconduct in Foreign Jurisdiction. [no change]

39 EXHIBIT D

40 RULE EMERGENCY SUSPENSION AND INTERIM PROBATION (a) Initial Petition for Emergency Suspension. 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 unrebutted, would establish clearly and convincingly that an attorney appears to be causing great public harm, the Supreme Court of Florida may issue an order imposing emergency conditions of probation on said attorney or suspending said attorney on an emergency basis. (b) Petition for Interim Probation. 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 unrebutted, would establish clearly and convincingly that conditions or restrictions on an attorney=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 attorney on interim probation, the conditions of which shall be provided in rule 3-5.1(c). (bc) Trust Accounts. Any order of emergency suspension or probation that restricts the attorney in maintaining a trust account shall, when served on any bank or other financial institution maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent

41 said bank or financial institution from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the court. (cd) New Cases and Existing Clients. Any order of emergency suspension issued under this rule shall 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 such emergency order. Any fees paid to the suspended attorney during the 30-day period shall be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court. (de) Filing of Formal Complaints. The Florida Bar shall file a formal complaint within 60 days of the emergency order and proceed to trial of the underlying issues, without the necessity of a finding of probable cause by either a grievance committee or the board of governors. (ef) Motions for Dissolution. (1) The attorney 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. Such motion shall operate as anot stay of 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, shall immediately be assigned to a referee designated by the chief justice. The filing of

42 such motion shall not stay the operation of an order of emergency suspension or interim probation entered under this rule. (2) The referee shall hear such motion within 7 days of assignment, or a shorter time if practicable, and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing, or a shorter time if practicable. The referee shall 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 complaint. (3) Successive motions for dissolution shall be summarily dismissed by the supreme court to the extent that they raise issues that were or with due diligence could have been raised in a prior motion. (4) Upon receipt of the referee=s recommended order on the motion for dissolution or amendment, the supreme court shall review and act upon the referee=s findings and recommendations. If the court continues the order of emergency suspension or probation in any manner, The Florida Bar shall file a formal complaint, if one has not yet been filed, within 60 days of the continuance and proceed to trial of the underlying issues, without the necessity of a finding of probable cause by either a grievance committee or the board of governors. A continuance of the emergency suspension or probation dissolves the stay of other proceedings.

43 (fg) Hearings on Formal Complaints. Upon the filing of a formal complaint based on charges supporting an emergency order, the chief justice shall appoint a referee to hear the matter in the same manner as provided in rule , except that the referee shall hear the matter and issue a report and recommendation within 90 days of appointment or, if the attorney has filed an unsuccessful motion for dissolution or amendment after the appointment of the referee, within 90 days of the supreme court=s continuance of the emergency order. This time limit shall apply only to trials on complaints in connection with which an emergency suspension or interim probation is in effect. If the time limit specified in this subdivision is not met, that portion of an emergency order imposing a suspension or interim probation shall be automatically dissolved, except upon order of the supreme court upon showing of good cause, provided that any other appropriate disciplinary action on the underlying conduct still may be taken. (gh) Proceedings in the Supreme Court of Florida. Consideration of the referee=s report and recommendation shall be expedited in the supreme court. If oral argument is granted, the chief justice shall schedule oral argument as soon as practicable. (hi) Waiver of Time Limits. 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.

44 RULE PROCEDURES UPON CRIMINAL OR PROFESSIONAL MISCONDUCT; DISCIPLINE UPON DETERMINATION OR JUDGMENT OF GUILT OF CRIMINAL MISCONDUCT (a) Definitions. (1) Judgment of Guilt. For the purposes of these rules, judgment of guilt shall include 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 shall include only 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 attorney has entered a plea of guilty to criminal charges, those cases in which the convicted attorney 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 Attorney. For the purposes of these rules, convicted attorney shall mean an attorney who has had either a determination or judgment of guilt entered by the trial court in the criminal proceeding.

45 (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 upon trial of or plea to any crime or offense that is a felony under the laws of this state, or under the laws under which any other court making such determination or entering such judgment exercises its jurisdiction, shall be admissible in proceedings under these rules and shall be conclusive proof of guilt of the criminal offense(s) charged for the purposes of these rules. (c) Notice of Institution of Felony Criminal Charges Determination or Judgment of Guilt. Upon the institution of a felony criminal charge against a member of The Florida Bar by the filing of an indictment or information entry of a determination or judgment of guilt against a member of The Florida Bar by a court of competent jurisdiction upon trial of or plea to any offense that is a felony under the laws applicable to such court, such convicted attorney the member shall within days of such the institution of the felony criminal charges determination or judgment notify the executive director of The Florida Bar of such charges determination or judgment. Notice shall include a copy of the order(s) whereby such determination or judgment was entered document(s) evidencing institution of the charges.

46 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 shall provide a copy of the indictment or information to the executive director. (d) Notice of Determination or Judgment of Guilt by Courts of the State of Florida of Felony Charges. (1) Trial Judge. If any such determination or judgment is entered by in a court of the State of Florida, the trial judge or clerk thereof shall, within 10 days of the date on which the determination or judgment is entered, transmit give notice thereof to the Supreme Court of Florida and the executive director of The Florida Bar and shall include a certified copy of the order(s) whereby document(s) on which the determination or judgment was entered. (2) Clerk of Court. If any such determination or judgment is entered in a court of the State of Florida, the clerk thereof shall, within 10 days of the date on which the determination or judgment is entered, give notice thereof to the executive director and shall include a certified copy of the document(s) on which the determination or judgment was entered. (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

47 Bar, the state attorney shall give notice of the determination or judgment of guilt to the executive director and shall include a copy of the document(s) evidencing such determination or judgment. (e) Notice by Members of Determination or Judgment of Guilt of All Criminal Charges. A member of The Florida Bar shall within 10 days of entry of a determination or judgment for any criminal offense notify the executive director of The Florida Bar of such determination or judgment. Notice shall include a copy of the document(s) on which such determination or judgment was entered. (ef) 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 counsel will file a Notice of Determination or Judgment of Guilt in the Supreme Court of Florida. A copy of the document(s) on which the determination or judgment is based shall be attached to the notice. Upon the filing of the notice with the Supreme Court of Florida by The Florida Bar and service of such notice upon the respondent of a notice of determination or judgment of guilt for offenses that are felonies under applicable law, the respondent shall stand suspended as a member of The Florida Bar on the eleventh day after filing of the notice of determination or judgment of guilt unless the respondent shall, on or before

48 the tenth day after filing of such notice, file a petition to terminate or modify such suspension as defined in rule 3-5.1(e). (fg) Petition to Modify or Terminate Suspension. (1) At any time after the filing of a notice of determination or judgment of guilt, the respondent may file a petition with the Supreme Court of Florida to modify or terminate such suspension and shall serve a copy thereof upon the executive director. The filing of such petition shall not operate as a stay of the suspension imposed under the authority of this rule. (2) If such petition is filed on or before the tenth day following the filing of the notice, the suspension will be deferred until entry of an order on the petition. (3) If such petition is filed after the tenth day following the filing of the notice of judgment of guilt, the suspension shall remain in effect pending disposition of the petition. Modification or termination of the suspension shall be granted only upon a showing of good case. (h) Appointment of Referee. Upon the entry of an order of suspension, as provided above, the supreme court shall promptly appoint or direct the appointment of a referee. (1) Hearing on Petition to Terminate or Modify Suspension. The referee shall hear a petition to terminate or modify a suspension imposed under this

49 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 shall 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. (g) Response to Petition to Modify or Terminate Automatic Suspension. The Florida Bar shall be allowed 20 days from the filing of a petition to modify or terminate automatic suspension to respond to the same. Bar counsel will oppose all petitions to modify or withhold an automatic suspension on a notice of determination or judgment of guilt unless the designated reviewer recommends and the executive committee concurs in not opposing such a petition. (g 2) Hearing on Sanctions. In addition to conducting a hearing on a petition to terminate or modify a suspension entered under this rule, the referee shall 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 shall be held and a report and recommendation shall be filed with the supreme court within 30 days of assignment as referee.

50 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 may not contest the findings of guilt in the criminal proceedings. A respondent who entered a plea in the criminal proceedings may be 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. (hi) Term of Suspension (1) Maximum Term of Suspension. Unless the Supreme Court of Florida permits an earlier application for reinstatement, the suspension imposed on the determination or judgment of guilt shall remain in effect for 3 years and thereafter until civil rights have been restored and until the respondent is reinstated under rule hereof. (2) Continuation During Appeal of Conviction. A final termination of the criminal cause resulting in the affirmance of a determination or judgment of guilt shall continue the suspension until expiration of all periods for appeal and rehearing.

51 (3) Continuation of Suspension Until Final Disposition. If an appeal is taken by the respondent from the determination or judgment of the trial court in the criminal proceeding, the suspension shall remain in effect during the appeal. and If on review the cause is remanded for further proceedings, the suspension shall remain in effect until the final disposition of the criminal cause unless modified or terminated by the Supreme Court of Florida as elsewhere provided. (4j) Termination and Expunction of Suspension. A final disposition of the criminal cause resulting in acquittal will terminate the suspension. Upon motion of the respondent, the Supreme Court of Florida may expunge a suspension sanction entered under this rule when a final disposition of the criminal cause has resulted in acquittal or dismissal. (5) Effect of Expunction. A respondent who is the subject of a disciplinary history record sanction that is expunged under this rule may lawfully may deny or fail to acknowledge the sanctions covered by the expunged record, except when the respondent is a candidate for election or appointment to judicial office, or as otherwise required by law. (i) Separate Disciplinary Action. (1) Initiation of Action. The Florida Bar may, at any time, initiate separate disciplinary action against the respondent.

52 (2) Conclusive Proof of Probable Cause. A determination or judgment of guilt, where the offense is a felony under applicable law, shall constitute conclusive proof of probable cause and The Florida Bar may file a complaint with the Supreme Court of Florida, or proceed under rule 3-7.9, without there first having been a separate finding of probable cause. (3) Determination or Judgment of Guilt as Evidence. A determination or judgment of guilt, whether for charges that are felony or misdemeanor in nature, shall be admissible in disciplinary proceedings under these rules, and in those cases where the underlying criminal charges constitute felony charges, determinations or judgments of guilt shall, for purposes of these rules, constitute conclusive proof of the criminal offense(s) charged. The failure of a trial court to adjudicate the convicted attorney guilty of the offense(s) charged shall be considered as a matter of mitigation only. (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. (jl) Professional Misconduct in Foreign Jurisdiction. [no change]

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