3 minute read
Ethically Speaking
Rules case clarifies nature of bar proceedings
by henry lee paul, esq.
The Court recently adopted rule amendments in SC22-144, In re: Amendments to Rules Regulating The Florida Bar – Rules 3-7.6 and 3-7.10. The amendments prohibit mediation in Bar disciplinary proceedings and reinstatement proceedings. The revisions were initiated by a lawyer reinstatement case in which the Referee ordered the parties to mediation. See, In re: Petition for Reinstatement of Brian John Murtha, SC19-277. The Florida Bar appealed the Referee’s recommendation of reinstatement in the Murtha case. As part of the appeal, the Bar successfully challenged the authority of the Referee to require mediation in a Bar proceeding. The reasons articulated in the brief give clarification as to the nature of bar proceedings and provides a good opportunity to discuss some of the procedures of the disciplinary system. A Bar prosecution is considered to be a “quasi-judicial administrative proceeding.” In my years of practice involving lawyer regulation, I have observed that many lawyers have difficulty in understanding the nuances of our system of lawyer regulation. These nuances are found in many areas, including the multi-level review process. The brief pointed out that the parties in Bar proceedings do not have authority to “settle” a case. The Bar asserted that “Reinstatement proceedings are not private disputes. Bar counsel cannot shut the doors to sunshine, engage in settlement negotiations that are “confidential,” and enter into a compromise settlement agreement….” Throughout the process, there is no finality until the Supreme Court has spoken. Proposed settlements can be rejected at multiple levels and additional matters of law and fact can be considered throughout the process. It is often said that there is no res judicata in Bar proceedings. The brief pointed out a peculiarity of Bar proceedings and asserted that the Bar is not a “true party” in the sense of a party to civil litigation. The Bar does not have authority to settle a case in the same manner as required in civil litigation by Fl. R. Civ. P. 1.720 (Mediation Procedures). The amendment has apparently prohibited the use of mediation in Bar proceedings except for those authorized by Chapter 14 (Grievance Mediation), in which the parties are the Complainant and Respondent, and not The Florida Bar. Although, in the past, the Bar has voluntarily participated in disciplinary mediation, it appears that will no longer be permissible. The protection of the public is a primary concern of the Florida Supreme Court in the exercise of its constitutional mandate to regulate the legal profession. The exercise of this jurisdiction often creates procedures that are unfamiliar to many lawyers involved in other types of litigation. Although all members of The Florida Bar are charged with knowledge of the rules, that does not always equate to an understanding of the disciplinary process. The amendment prohibiting mediation in Bar proceedings is just one example of how lawyer regulation has different procedures and goals than other types of litigation.
Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.
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