The Florida Bar has opposed a member-backed petition to amend Rule 4-3.1 of the Rules Regulating The Florida Bar, stating the changes would  “exact an automatic sanction on lawyers.”  Bar Rule 4-3.1 prohibits attorneys from asserting frivolous claims or defenses.  The proposed amendment provides that an appellate court determination that an attorney pursued a frivolous claim or defense in violation of Fla. Stat. 57.105, Rule 11, or any similar rule or statute automatically “constitutes a conclusive determination” that the attorney violated Bar Rule 4-3.1.

Under the proposed changes, attorneys who are subject to such appellate determinations would have to notify The Florida Bar within 10 days, with copies to opposing counsel.

After the Disciplinary Procedures Committee and Rules Committee unanimously voted to oppose the petition, The Florida Bar filed its response on December 29, 2017.

The Florida Bar opposes the proposed changes, arguing they impose an automatic conclusive finding of probable cause, which “bypasses a grievance committee entirely, violates due process rights of defendants and undermines the entire bar review process.”  The Bar also points to the different functions of the court and grievance proceedings, noting that discipline proceedings have a higher standard of proof than civil court sanctions proceedings.

The Petitioner, Thomas O. Wells, defends the proposed amendment in a response filed on January 8, 2018.   He argues that the proposed amendment is not an automatic sanction, it is “a finding of misconduct, but not a finding of probable cause.”  Accordingly to Wells, grievance committees still would have discretion to decide “whether and what disciplinary action is justified” after allowing an opportunity to be heard because the proposed changes authorize “diversion” as an alternative to disciplinary sanctions.

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).


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