FACTS:

---Did you know: The Florida Bar has set sanctions for each rule violation?

 

See: "Florida’s Standards for Imposing Lawyer Sanctions," link here:  

 

 

---The stated purpose of Lawyer Discipline Proceedings is:

 

"to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge their professional duties to clients, the public, the legal system, and the legal profession properly."

 

See page 8 of "Florida's Standards." 

 

 

---Did you know that there is a methodology of factors for the Court to utilize before recommending or imposing appropriate sanctions:

 

1) duties violated;

2) the lawyer’s mental state;

3) the potential or actual injury caused by the lawyer’s misconduct;

4) the existence of aggravating or mitigating circumstances.

 

See page 8 of "Florida's Standards." 

 

 

---Did you know the burden of proof in Lawyer Disciplinary proceeding is "clear and convincing" evidence "that a member of the legal profession has violated a provision of the Rules Regulating The Florida Bar."

 

See page 10 of "Florida's Standards." 

 

 

---Possible Sanctions for Attorney Misconduct:

Did you know that the possible sanctions include:

 

1. Disbarment

2. Suspension

A. Less than 90 Days (Does not require proof of rehabilitation or passage of the bar examination,

is prevention of practice for 90 days)         

B. More than 90 Days: (requires proof of rehabilitation and may require passage of all or part of The Florida Bar examination.)

3. Public Reprimand

4. Admonishment

5. Probation

 

And other sanctions may include:

a) restitution;

b) assessment of costs;

c) limitation upon practice;

d) appointment of a receiver;

e) requirement that the lawyer take the bar examination or professional responsibility examination;

f) requirement that the lawyer attend continuing education courses; and

g) other requirements that the state’s highest court or disciplinary board deems consistent with the purposes of lawyer sanctions.

 

 

---Did you know: No suspension shall be ordered for a specific period of time in excess of three (3) years.

 

 

---Did you know that in some cases, the Bar may file for an "EMERGENCY SUSPENSION?"

 

Emergency suspension is the temporary suspension of a lawyer from the practice of law pending imposition of final discipline. Emergency suspension includes:

1) suspension upon conviction of a “serious crime;” or

2) suspension when the lawyer’s continuing conduct is or is likely to cause immediate and serious injury to a client or the public.

 

---Did you know: After being disbarred (and conditions have been met) a lawyer may apply for readmission?

 

"In no event should a lawyer ever be considered for readmission until at least five years after the effective date of disbarment. After that time, a lawyer seeking to be readmitted to practice must show by clear and convincing evidence: rehabilitation, compliance with all applicable discipline or disability orders or rules, and fitness to practice law."

 

 

Did you know: There are violations, which carry a presumption of disbarment? They include, but are not limited to:

 

1. Conversion of Client property: Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury. (Failure to Preserve the Client's Property)

 

2. Failure to Preserve the Client's Confidences: Disbarment is appropriate when a lawyer, with the intent to benefit the lawyer or another, intentionally reveals information relating to representation of a client not otherwise lawfully permitted to be disclosed and this disclosure causes injury or potential injury to a client.

 

3. Failure to Avoid Conflicts of Interest: Presumption of Disbarment if intentional.

 

4. Lack of Diligence:  Disbarment is presumed when lawyer abandons client, causing serious or potentially serious injury to client, knowingly fails to perform required actions, and engages in a pattern of neglect.

 

5. Lack of Competence: Disbarment is appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.

 

6. Lack of Candor: Disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client.

 

 

---Did you know?

 

The severity of sanctions depends on the level of intent, injury to client, and possible injury to client?

 

There are lesser sanctions depending on the level of intent. Lesser sanctions: The level of intent, in most cases, determines the severity of the sanction. For example, pertaining to Conversion of Client Property, intentional conversion carries a presumption of disbarment. However, without the intention to purposefully convert client property to the lawyer's own benefit, conversion may carry a lesser sanction.

 

            Conversion, for example:

 

A. Suspension is appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. The commentary states: "Suspension should be reserved for lawyers who engage in misconduct that does not amount to misappropriation or conversion."

 

B. Public reprimand: Also Compare with negligence: "Public reprimand is appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client."

 

C. "Admonishment is appropriate when a lawyer is negligent in dealing with client property and causes little or no actual or potential injury to a client or where there is a technical violation of trust account rules or where there is an unintentional mishandling of client property."

 

In most cases, the severity of the sanction is directly proportionate to the intent of the attorney when committing the violation.

 

 

---Definitions:

 

1) “Injury” is harm to a client, the public, the legal system, or the profession which results from a lawyer’s misconduct. The level of injury can range from “serious” injury to “little or no” injury; a reference to “injury” alone indicates any level of injury greater than “little or no” injury.

 

2) “Intent” is the conscious objective or purpose to accomplish a particular result.

 

3) “Knowledge” is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.

 

4) “Negligence” is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard care that a reasonable lawyer would exercise in the situation.

 

5) “Potential injury” is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer’s misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer’s misconduct.

 

 

 

---Connecting the Act to the Sanction:

 

1. Disbarment: Were the actions of the Attorney taken with the intent to benefit the Attorney or another? Has the Attorney caused injury to the client or potential injury to the client? Were the actions of Attorney knowingly made?

 

2. Suspension:  Did the Attorney act intentionally, but, however, without the intent to benefit himself or another? Was the action by the lawyer taken knowingly? Did the action taken cause injury to the client or potential injury to the client?

 

3. Public Reprimand: Were the Attorney's actions negligently? Did the action taken cause injury to the client or potential injury to the client?

 

4. Admonishment: (Public Reprimand) Were the Attorney's actions negligently? Did the disclosure cause little or no actual or potential injury to a client?

 

Note: Pattern of conduct: Generally applies to disbarment and suspension, but can apply to other factors.

 

 

 

---Did you know: After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.  An attorney has the right to present mitigating circumstances.

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