While most non-healthcare-related professionals in Florida are governed by various boards that fall within the jurisdiction of the Department of Business and Professional Regulation, lawyers and judges are regulated by the Florida Bar and Judicial Qualifications Commission (JQC), respectively.
The Florida Bar was created in 1949 when the state supreme court granted a petition to integrate Florida’s various informal lawyer organizations into a single mandatory association. The JQC was established by the Florida Constitution in 1966 to investigate and recommend to the Supreme Court discipline or removal for any judge whose conduct warranted such action.
The two disciplinary processes are somewhat similar after probable cause (PC) is found, but the pre-PC stage and the sanctions stage are noticeably different. Additionally, there are more steps in the Bar disciplinary process (grievance committee, Board of Governors review, etc.) than in the JQC process.Florida Bar Investigation >>
While there are mechanisms such as local professionalism committees in place to handle complaints, the disciplinary process typically starts when a client, judge, or opposing counsel files a complaint with the Bar via its Attorney Consumer Assistance Program (ACAP). The Bar may also learn of potential issues through media reports or other means.
Grounds can include:
- Theft of client funds
- Misrepresentation and other dishonest conduct
- Failure to comply with trust accounting rules
- Commission of a crime
- Failure to communicate with clients
- Lack of diligence/competence
- Conflicts of interest
- Improper transactions with clients (for example, naming the lawyer as a beneficiary in a client’s will)
- Charging excessive fees
- Unprofessional conduct with opposing counsel and disrespect to the judiciary
Once a complaint is received, ACAP conducts an initial screening to determine whether the allegations constitute a potential violation that warrants discipline.
If not, the file is immediately closed. Otherwise, a file is opened and transmitted to a Bar attorney at one of the five branch offices around the state who will conduct an investigation after providing the lawyer with a notice of the complaint and a request for a response within 15 days. After reviewing the response and other information gathered, Bar counsel can close the file, send the case to mediation or fee arbitration (fee disputes constitute one of the most frequent Bar grievances filed), or refer the case to the grievance committee (GC).
Grievance committees are located throughout the state; some circuits with higher populations have more than one committee.
For example, the Third Judicial Circuit (covering Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee and Taylor Counties) has a single committee while the Eleventh Circuit (Miami-Dade) has fifteen.
The GC assigns the case to a committee member who serves as the investigator. That individual interviews witnesses, reviews evidence, and makes a recommendation to the GC at one of its regular meetings.
The GC has a few options available to it:
- No finding of PC
- No finding of PC but issuing a letter of advice (which does not count as discipline)
- Recommend mediation or arbitration of a fee dispute
- Issue a finding of minor misconduct
- Recommend diversion to a practice- and professionalism-enhancement program (which does not count as discipline)
- Recommend deferral until the conclusion of a parallel civil or criminal case
- Find PC
The Bar’s Board of Governors (BOG) reviews GC actions as well as all other milestones in a case.
If the BOG reviewer disagrees with the GC’s findings, it can send the matter back for another review or overturn the findings and substitute its own findings.
At any point during the case, a settlement agreement can be reached, subject to approval by the BOG and Supreme Court.
If PC is found to exist, then a formal complaint is filed by Bar counsel in the Supreme Court, which appoints a judge in the respondent’s circuit to serve as the referee on the case. From that point, the proceedings look very much like a civil case; the respondent is afforded 20 days to file an answer to the complaint, pretrial motions are made and heard; and a trial date is set. After trial, the referee files a report with the Supreme Court that contains factual and legal findings, a recommendation of guilt or innocence, and a recommendation of appropriate sanctions. The report is reviewed by the BOG and the respondent, each of which have 60 days to appeal.
The Florida Supreme Court is the final arbiter in the matter.
It can approve or disapprove any aspect of the report and can override punishment recommendations, imposing sanctions that are harsher or more lenient than that recommended by the referee.
A lawyer may be subject to any of the following punishments:
- Probation (usually 6 months to 3 years) that can include special conditions such as attending remedial programs, meeting with a mentor, and having one’s work supervised and approved
- Public reprimand
- Suspension (non-rehabilitative suspension is 90 or fewer days, while rehabilitative suspension lasts anywhere from 91 days to 3 years)
If you become aware that you are the subject of a Bar complaint, the earlier you engage counsel, the better. Call us right away to learn how we can help.
State judges are governed by the Florida Code of Judicial Conduct, a collection of eight canons prescribing certain behaviors:
- A judge shall uphold the integrity and independence of the judiciary.
- A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
- A judge shall perform the duties of judicial office impartially and diligently.
- A judge is encouraged to engage in activities to improve the law, the legal system, and the administration of justice.
- A judge shall regulate extrajudicial activities to minimize the risk of conflict with judicial duties.
- Fiscal matters of a judge shall be conducted in a manner that does not give the appearance of influence or impropriety.
- A judge shall regularly file public reports as required by Article II, Section 8, of the Constitution of Florida and shall publicly report gifts, expense reimbursements and payments, and waivers of fees or charges; additional financial information shall be filed with the JQC to ensure full financial disclosure.
- A judge or candidate for judicial office shall refrain from inappropriate political activity.
In our experience, the most common allegations are campaign violations and some sort of display of unprofessional conduct in the courtroom, followed by a delay in rendering orders.
When the JQC receives a complaint about a judge’s conduct, it is reviewed by the Commission’s investigative panel (IP) to determine facial sufficiency. Assuming the complaint clears the initial hurdle, it is sent to the judge with either a Notice of Investigation under Rule 6(b) or a Notice of Required Appearance under Rule 6(c). In either case, the judge appears before the IP to provide an explanation and answer the panel’s questions.
There is no right to present other testimony or evidence or to cross examine any witness called by the IP. During this investigatory stage, the proceedings are confidential pursuant to Article V, section 12(a)(4) of the Florida Constitution, Florida Rule of Judicial Administration 2.420 and JQC Rule 23.
Following the appearance, the IP decides whether PC exists to support the allegations in the complaint and whether to institute formal proceedings. If so, then a Notice of Formal Charges is filed with the Florida Supreme Court and turned over to a hearing panel (HP).
From that point, the proceedings look very similar to a civil trial; the judge is afforded 20 days to file an answer, pretrial motions are made and heard; and a trial date is set. The HP decides guilt or innocence by a two-thirds vote, and a punishment recommendation is made to the Supreme Court by a simple majority vote unless removal or medical retirement is recommended, in which case the vote of four members is required.
There are six main sanctions available:
- Private admonishment
- Discipline as a lawyer
- Public reprimand
At any point during the proceedings, a settlement can be reached with either the IP or HP, which will then transmit the recommended settlement to the Supreme Court for approval. The court is the final arbiter in the matter. It can approve or disapprove any aspect of the report or settlement and can override punishment recommendations, imposing sanctions that are harsher or more lenient than that recommended by the referee.