IN THE SUPREME COURT OF FLORIDA In re: Amendment to Rules Regulating ) The Florida Bar ) Case No. SC05-206 ) COMMENTS BY JOHN A. WEISS TO PROPOSED RULES 3-5.1(j), 3-7.12 and 3-7.2(f)(1) 1. Rule 3-5.1(j), Disbarment on Consent In light of the provisions of Rule 3-5.1(f), captioned Disbarment, one wonders at the necessity of having Rule 3-5.1(j) at all. There are no Public Reprimand on Consent or Suspension on Consent rules. Why should there be a separate rule for Disbarment on Consent? The original purpose of allowing lawyers to resign in lieu of disciplinary proceedings was to expedite disciplinary proceedings. Under old Integration Rule 11.08, captioned Resignation Pending Disciplinary Proceedings, a lawyer could resign in lieu of disciplinary proceedings. Reinstatement proceedings were only through the Bar. On January 1, 1987, Rule 11.08 was changed to require readmission through the Board of Bar Examiners. Even at that point, a lawyer still had the incentive to resign because a resigning lawyer did not have the opprobrium of disbarment attached to his or her name. The Rule was renamed several times after the Rules Regulating The Florida Bar were adopted, leading to the current caption to Rule 3-7.12, Disciplinary Resignation. If this Court sees fit to abolish Rule 3-7.12, thereby eliminating disciplinary resignations, there is no need for a special Rule 3-5.1(j), disbarment by consent.
This rule amendment is purely a policy consideration that, for all intents and purposes, will have no impact on the protection of the public. Eliminating disciplinary resignations will, in some limited instances, cause lawyers to require The Florida Bar to prove up its case rather than submitting a consent judgment that calls for disbarment. The undersigned has represented numerous lawyers over the last 22 years (and prosecuted some for eight years before that) who agreed to resign rather than continuing the litigation because they wish to avoid the disgrace of the word disbarment being attached to their name and to their family s name. Stripping respondent lawyers of that privilege will have little or no effect on the Bar s workload. The undersigned believes the rule should remain as it is and Rule 3-7.12 should not be changed. A lawyer who submits a disciplinary resignation is disbarred just as thoroughly as one who submits a consent for disbarment. Why not give them a mechanism to gracefully leave the Bar. If this Court decides to eliminate Rule 3-7.12, then there is no necessity of a separate Rule 3-5.1(j). 2. Rule 3-7.2(f)(1), Petition to Modify or Terminate Suspension The undersigned objects to the sentence to be added to the aforementioned rule. That sentence reads: The petition to modify or terminate the suspension may only challenge the jurisdiction of the Court or the validity of the criminal court proceedings due to a denial or lack of due process.
In essence, The Florida Bar would allow a lawyer to seek to modify a proposed felony conviction/determination suspension only by challenging the validity of the criminal proceedings below. Such a provision would have the unintended consequence of mandating a three-year suspension for every felony conviction or determination. For example, a lawyer pleading nolo to a felony that has absolutely no relationship whatsoever to his or her practice, and whose sentence involves no incarceration and adjudication of guilt is withheld, could still find himself or herself facing a three-year suspension. This is, one wo uld hope, an unintended consequence of the rule change. The fallacy of this rule is that The Florida Bar has no obligation whatsoever to file a formal complaint after a felony conviction or determination. If The Florida Bar determines that the criminal matter would not result in a disbarment order, there is no reason for them to file a formal complaint because they already have a three-year suspension in hand. Under the new rule, a respondent cannot file a petition to modify or terminate the felony suspension solely because he or she thinks three years is too long. Under new Rule 3-7.2(f)(1), a lawyer can only petition to modify or terminate the suspension because of the invalidity of the conviction. Under the plain language of the proposed rule, filing a petition to terminate the three-year suspension because, e.g., the offense only warrants a six-month suspension, would be barred. A cure to the problem raised above might be an amendment to Rule 3-7.2(i). That rule, captioned Separate Disciplinary Action, gives the Bar the option of initiating separate disciplinary proceedings. Should this Court choose to limit a petition to modify
or terminate suspension pursuant to the proposed language above, it should mandate the filing of a formal complaint by The Florida Bar. In that manner, a respondent can then argue that the misconduct involved warrants a suspension of less than three years. The undersigned would warrant to this Court that there have been many instances during the years that he has represented lawyers where they have pled to criminal misconduct and where adjudication has been withheld, wherein The Florida Bar has agreed to suspensions of less than three years. In some instances the suspensions have lasted less than 90 days. Under the proposed rule, The Florida Bar does not have to file a formal complaint on a felony suspension case, thereby forcing the respondent to undergo a three-year suspension. The proposed language to Rule 3-7.2(f)(1) should not be adopted. If it is adopted, Rule 3-7.2(i)(1) should be modified to require The Florida Bar to file a formal complaint within 60 days of the lawyer s criminal conviction/determination suspension being effective. In this manner, the lawyer would have the ability to have the courts, not the Bar, determine the length of their suspension. Respectfully submitted, WEISS & ETKIN John A. Weiss Attorney Number 0185229 2937 Kerry Forest Parkway, Suite B-2 Tallahassee, Florida 32309 (850) 893-5854
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent by U.S. Mail to John F. Harkness, Jr., Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, on this 7 th day of March, 2005. John A. Weiss