bog minutes nov 7-8, 1991 - pages 29-32

8/13/2019 BOG Minutes Nov 7-8, 1991 - Pages 29-32

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RegularMinutes-Page29November 7-8, 1991

professionalism program,andYLDis planning to hold it atallofFlorida'slawschools.Healso stated thatYLDwillbeconveningonDecember12 toaddress the issue of post graduateinternships.Finally, Mr.Palmer reported thatthe YLD isdoing wellfinancially,andbecauseit hasexceededits$175,000reserve cap, the division will be contributing$14,165plusanadditional$10,000to theBar'sgeneral fund.President Hill and fellow board members thanked the YoungLawyers Divisionfortheircontribution.

17. ReportofSpecial CommitteeonEvaluationof DisciplinaryEnforcementChairThomasErvinreported thattheSpecial CommitteeonEvaluation of Disciplinary Enforcement completed its initialreport, and is submitting it to the Board for review andapproval. Mr. Ervin stated the charge of the committee wasto reviewandcommenton theA.B.A. CommissiononEvaluationofDisciplinary Enforcement( McKayCommission ) Report.Mr.Ervin reported thatthecommittee will begin reviewingthe concept of an ethics school and other possiblediversionary programs.Mr.Ervin statedtheMcKay Commission Reportcontainstwenty-two (22) specific recommendations for disciplinaryenforcement,but that he would only be presenting for Boarddiscussionthefollowing recommendationsof thereport:1) Recommendation #3.2 Recommendsacentralintakeofficefor the receipt of all complaints aboutlawyers.The committee endorsed a central intake function, but onlyona regional basis.2) Recommendation#3.1(a)-3.1(g)--Recommends that theCourtestablishasystemofregulationof thelegalprofession that consists of component agencies, includingbutnotlimitedtolawyer discipline;aclient protectionfund;mandatory arbitration of fee disputes; voluntaryarbitration of lawyer malpractice claims and other disputes;mediation; lawyer practice assistance; and lawyer substanceabuse counseling.Ofthese component agencies, the committee did not endorsemandatory feearbitration, voluntary arbitration oflawyermalpractice claims,ormediation.Mr. Ervin stated that the committee felt a client could notbemandatedtoparticipatein a feearbitration program,and


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Regular Minutes - Page 30November 7-8, 1991

a voluntary arbitration system for legal malpractice claimscouldbe created under Florida law. Additionally, theseprograms would create more expenseand bureaucracy.3) Recommendation 9.6 Recommendedalljurisdictionsshould afford a right of review to complainants whosecomplaints are dismissed prior to afullhearing on themerits, consistent with the ABA MRLDE 11B(3) and 31.The committee felt that this recommendation would possiblycreate anintermediary appellate body,andthattheBar'ssystemofgrievance committees,referees,andboardreviewwaspreferable.4) Recommendation 10--Recommended procedures inlieuofdiscipline formattersinwhichalawyer'sactionsconstitute minor misconduct, minor incompetence, or minorneglect.Thecommitteeendorsed,inconcept,thecreationof aprocedure to divert minor misconduct cases from the formaldisciplinary machinery. The committee felt with theincreaseincomplaintsof minor misconductby attorneys, adiversionary system should be established to handle suchcases.5) Recommendation 6--Recommended that the Court aloneshould appoint and for cause remove disciplinary counsel andshould provide sufficient authority forprosecutorialindependenceanddiscretion.The committee endorsed an amendment to this recommendationwhich would allowtheCourttoappointa designee (TheFlorida Bar)toexercise powers provided in6.1(a)-(f).6) Recommendation#7 Afully public disciplineprocessThe committee did not endorse this recommendation in thattheBar has just implemented a new disciplinary system thatpermits acknowledgement of an initial investigation, butprohibits publicaccesstorecordsuntiltheinvestigationhas been completed. The committee felt that theBar'ssystem needs more time to determine its feasibility.7) Recommendation 5--Independenceof disciplinaryofficialsThe committee did not endorse sections5.1-5.3as written,and felt that disciplinary andstaffcounsel should continueto have authority to bring to the board for review actionsofthe grievancecommittees. However, it did endorse theauthority of staff counselto appealadecisionof areferee, even if the Board disagreed.


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8) Recommendation #17--Recommended random audit of trustaccounts.Thecommitteedid notendorse thisrecommendation, andfeltthat a random system would not locate the violators.Additionally,thecommittee feltarandomsystemwould findsome technical violations but at a great expense, and thatthemoney couldbebetter utilizedineducatingtheprofession on how to properly operateaccounts.9) Recommendation#18--Recommended thattheburdenofproof in feedisputesbe on theattorneyifthereis nowritten fee agreement.The committeefeltthat this recommendation was primarily acivilburdenofproof,andthus,did notendorseit.Mr. Ervin moved, which was seconded, the adoption of thereportof theSpecial CommitteeonEvaluationofDisciplinary Enforcementas anofficialresponseto theMcKay Commission recommendations for submission to theAmericanBarAssociation.Itwas requested that recommendation #6, Authority toAppeal, and Recommendation #5.3, Independence ofDisciplinary officials,beremovedfromthemotionfordiscussion.Afterconsideration, the proposed report, excludingrecommendations#6 and#5.3,were approved.John DeVault stated his opposition to recommendation#6.1(d)inallowing a disciplinary counsel to take an appeal of thereferee'srecommendation when thereis anopposingpositionby the Board. He stated that this would create a situationwhere bar counsel and the Board taking adverse positions.StaffCounsel John Berry responded that this recommendationwould allow more judicial control, and would give the Courtmore responsibility over discipline enforcement, which theMcKay Commissionfavors. Mr.Berry further stated thatitwould balance the judicial and legislative functions inthesematters.Theprimary concernofsome board memberswasthattherecommendation authorizing an appeal may potentiallyposition the Board adversely to Bar counsel. Afterconsiderationandupon motion, recommendation #6.1(d)and#5.3as endorsed by the committee, failed.Frederick Bosch stated his opposition to not endorsingrecommendation #6.2 which prohibits certain expartecommunication. He stated that ex parte communication would


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bog minutes nov 7-8, 1991 - pages 29-32

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