Hello everyone and welcome to this Ethics Alert, which will discuss the recent Bar’s response opposing the Petition initiated by a Florida lawyer to amend Florida Bar Rule 3-4.3 which states that a final decision of the Florida Supreme Court, Florida appeals court, or federal appellate court determining prosecution of a frivolous claim“ constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.” The matter is The Florida Bar Re: Petition to Amend Rules Regulating The Florida Bar 3-4.3, 3-5.3, and 4-3.1 (Case No. SC17-1965). The Response is here: https://efactssc-public.flcourts.org/casedocuments/2017/1965/2017-1965_response_49952_response.pdf
The proposed rule amendment would add a section to Florida Bar Rule 3-4.3 (misconduct or minor misconduct), providing that if the Florida Supreme Court or any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”
The proposed rule would also require a lawyer who has had such a ruling against him or her to notify the Bar within 10 days with copies to opposing counsel. Bar counsel would docket the case and “The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”
The BOG Disciplinary Procedure Committee (DPC) voted 7-0 to oppose the proposed petition in November 2017 and the BOG voted unanimously to file a response opposing the petition at its December 8, 2017 meeting. The Bar filed its response opposing the proposed amendment on December 29, 2018.
Bottom line: As I previously stated, this is rare member initiated petition to amend the Florida Bar rules. The rule amendment appears to be well intended; however, it is problematic and ill advised. The Bar’s Response sets forth the reasons that the Bar opposes the rule amendment, including the fact that a civil case involves different parties, different rules and statutes, different goals, and lower evidentiary standards.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670