PROCEDURES BEFORE A REFEREE

(a) Referees.

(1) Appointment. The chief justice has the power to appoint referees to try disciplinary cases and to delegate to a chief judge of a judicial circuit the power to appoint referees for duty in the chief judge’s circuit. These appointees ordinarily must be active county or circuit judges, but the chief justice may appoint retired judges.

(2) Minimum Qualifications. To be eligible for appointment as a referee under this rule, the judge must have previously served as a judicial referee in proceedings instituted under these rules before February 1, 2010, at 12:01 a.m., or must have received the referee training materials approved by the Supreme Court of Florida and certified to the chief judge that the training materials have been reviewed.

(b) Trial by Referee. Proceedings after assignment of a referee are adversary proceedings conducted under this rule.

(c) Pretrial Conference. The referee must conduct a pretrial conference within 60 days of the order assigning the case to the referee. The purpose of the conference is to set a schedule for the proceedings, including discovery deadlines and a final hearing date. The referee must enter a written order in the proceedings reflecting the schedule determined at the conference.

(d) Venue. The trial must be held in the county in which an alleged offense occurred or in the county where the respondent resides or practices law or last practiced law in Florida, whichever is designated by the Supreme Court of Florida; provided, however, that if the respondent is not a resident of Florida and if the alleged offense is not committed in Florida, the trial will be held in a county designated by the chief justice.

(e) Style of Proceedings. All proceedings instituted by The Florida Bar must be styled “The Florida Bar, Complainant, v. …..(name of respondent)….., Respondent,” and “In The Supreme Court of Florida (Before a Referee).”

(f) Nature of Proceedings.

(1) Administrative in Character. A disciplinary proceeding is neither civil nor criminal but is a quasi-judicial administrative proceeding. The Florida Rules of Civil Procedure apply except as otherwise provided in this rule.

(2) Discovery. Discovery is available to the parties in accordance with the Florida Rules of Civil Procedure.

(3) Mediation. Civil mediation is not available to parties. The parties may be referred to grievance mediation under chapter 14 as permitted by these rules and the grievance mediation policies adopted under these rules.

(g) Bar Counsel. Bar counsel must investigate as is necessary and prepare and prosecute with utmost diligence any case assigned.

(h) Pleadings. Pleadings may be informal and must comply with the following.

(1) Complaint; Consolidation and Severance.

(A) Filing. The complaint must be filed in the Supreme Court of Florida.

(B) Content. The complaint must set forth the particular act or acts of conduct for which the respondent is sought to be disciplined.

(C) Joinder of Charges and Respondents; Severance. A complaint may embrace any number of charges against 1 or more respondents, and charges may be against any 1 or any number of respondents; but a severance may be granted by the referee when the ends of justice require it.

(2) Answer and Motion. The respondent must answer the complaint. The answer must include all the respondent’s defenses, except that the respondent may challenge the sufficiency of the complaint and jurisdiction of the forum in a separate motion. The respondent’s answer may invoke any proper privilege, immunity, or disability available to the respondent. All the respondent’s pleadings must be filed within 20 days of service of a copy of the complaint on the respondent.

(3) Reply. The bar may reply to the respondent’s answer within 10 days of service on bar counsel if the respondent’s answer contains any new issue or affirmative defense. Failure to reply to the respondent’s answer does not prejudice the bar. All affirmative allegations in the respondent’s answer are considered denied by the bar.

(4) Disposition of Motions. Hearings on motions may be deferred until the final hearing, and, whenever heard, rulings on any motions may be reserved until termination of the final hearing.

(5) Filing and Service of Pleadings.

(A) Before Appointment of Referee. Any pleadings filed in a case before appointment of a referee must be filed with the Supreme Court of Florida in an electronic format approved by the supreme court and must include a certificate of service showing parties on whom service of copies has been made. The Supreme Court of Florida notifies the parties of the referee’s appointment and forwards all pleadings filed with the court to the referee for action on appointment of the referee.

(B) After Appointment of Referee. All pleadings, motions, notices, and orders filed after appointment of a referee must be filed with the referee in an electronic format approved by the supreme court and must include a certificate of service showing service of a copy on the bar’s staff counsel and bar counsel and on all interested parties to the proceedings.

(C) Subpoenas for witnesses’ attendance and production of documentary evidence before a referee must be issued by the referee and must be served either in the manner provided by law for the service of process or by an investigator employed by the bar.

(6) Amendment. The referee may allow pleadings to be amended. If the referee permits pleadings to be amended, the referee must allow a reasonable time for response.

(7) Expediting the Trial. The referee may, in the referee’s discretion, shorten the time for filing pleadings and the notice requirements as provided in this rule if the referee determines that the proceeding should be expedited to serve the public interest.

(8) Disqualification of Referee. A referee may be disqualified from service in the same manner and to the same extent that a trial judge may be disqualified under existing law from acting in a judicial capacity. In the event of a disqualification, the chief judge of the appropriate circuit will appoint a successor referee from that same circuit.

(i) Notice of Final Hearing. Either party or the referee may set the cause for trial with at least 10 days notice. The trial will be held as soon as possible after 10 days from the filing of the respondent’s answer or, if no answer is filed, from the date the answer is due.

(j) The Respondent. The bar may call the respondent as a witness to make specific and complete disclosure of all matters material to the issues unless the respondent claims a privilege or right properly available under applicable federal or state law. The respondent may be cited for contempt of the court if subpoenaed to give testimony or produce documents and refuses to give testimony or produce documents or, having been duly sworn to testify, refuses to answer any proper question.

(k) Complaining Witness. The complaining witness is not a party to the disciplinary proceeding and has no rights other than those of any other witness. The referee may grant the complaining witness the right to be present at any hearing when the respondent is also present after the complaining witness has testified during the case in chief, unless the complaining witness’ presence is found to be impractical due to unreasonable delay or other good cause. A complaining witness may be called on to testify and produce evidence as any other witness. The bar may proceed with trial regardless of a complaining witness’ lack of cooperation or any settlement, compromise, or restitution between the respondent and complaining witness. The complaining witness has no right to appeal.

(l) Parol Evidence. Evidence, other than that contained in a written lawyer-client contract, may not be used in proceedings conducted under the Rules Regulating The Florida Bar to vary the terms of that contract, except other competent evidence may be used only if necessary to resolve issues of excessive fees or excessive costs.

(m) Referee’s Report.

(1) Timing of Report. The referee must enter a report as part of the record within the later of 30 days after the conclusion of the trial, 10 days after the referee receives the transcripts of all hearings, or as extended by the chief justice for good cause. Failure to enter the report in the time prescribed does not deprive the referee of jurisdiction.

(2) Contents of Report. The referee’s report must include:

(A) a finding of fact for each item of misconduct of which the respondent is charged, which has the same presumption of correctness as the judgment of the trier of fact in a civil proceeding;

(B) recommendations whether the respondent should be found guilty of misconduct justifying disciplinary measures;

(C) recommendations on the disciplinary measures to be applied;

(D) the respondent’s disciplinary history on record with the bar’s executive director or that otherwise becomes known to the referee through evidence properly admitted by the referee during the course of the proceedings (after a finding of guilt, all evidence of prior disciplinary measures may be offered by bar counsel subject to appropriate objection or explanation by respondent); and

(E) a statement of costs incurred and recommendations as to the manner in which those costs should be taxed.

(3) Filing of Report. The referee must file the report and record of proceedings with the Supreme Court of Florida in an electronic format approved by the supreme court. The referee must serve copies of the report on the parties including staff counsel. Bar counsel will make a copy of the record, as filed, available to other parties on request and payment of the actual costs of reproduction. The referee may not file the report of referee and record until the time for filing a motion to assess costs has expired and no motion has been filed or, if the motion was timely filed, until the motion has been considered and a ruling entered.

(n) The Record.

(1) Recording of Testimony. A court reporter must attend and record all testimony at all hearings at which testimony is presented. Transcripts of testimony are not required to be filed in the matter. Any party requesting transcripts be filed in the matter must pay the cost of transcription directly to the court reporter. If the referee orders that transcripts be filed, they are subject to assessment as costs as elsewhere provided in these rules.

(2) Contents. The record includes all items properly filed in the cause, including pleadings; recorded testimony, if transcribed; exhibits in evidence; and the report of the referee.

(3) Preparation and Filing. The referee, with the assistance of bar counsel, prepares the record, certifies that the record is complete, serves a copy of the index of the record on the respondent and The Florida Bar, and files the record with the office of the clerk of the Supreme Court of Florida in an electronic format approved by the supreme court.

(4) Supplementing or Removing Items from the Record. The respondent and The Florida Bar may seek to supplement the record or have items removed from the record by filing a motion with the referee within 15 days of the service of the index. Denial of a motion to supplement the record or to remove an item from the record may be reviewed in the same manner as provided for in the rule on appellate review under these rules.

(o) Plea of Guilty by Respondent. At any time during the progress of disciplinary proceedings, a respondent may tender a plea of guilty.

(1) Before Filing of Complaint. A guilty plea tendered before filing of a complaint by staff counsel must be tendered in writing to the grievance committee or bar counsel.

(2) After Filing of Complaint. The respondent may enter a written guilty plea after a complaint has been filed in writing with the referee to whom the cause has been assigned for trial. The referee may take testimony on the guilty plea, then must enter a report as otherwise provided.

(3) Unconditional. An unconditional plea of guilty shall not preclude review as to disciplinary measures imposed.

(4) Procedure. All guilty plea procedures are as elsewhere provided in these rules, except if they conflict with this rule.

(p) Cost of Review or Reproduction.

(1) The bar’s charge for reproduction for the purposes of these rules is determined and published annually by the executive director. In addition to reproduction charges, the bar may charge a reasonable fee incident to a request to review disciplinary records or for research into the records of disciplinary proceedings and identification of documents to be reproduced.

(2) When the bar is requested to reproduce documents that are voluminous or is requested to produce transcripts in the bar’s possession, the bar may decline to reproduce the documents in the bar’s offices and must inform the requesting person of the following options:

(A) purchase of the transcripts from the court reporter service that produced them;

(B) purchase of the documents from the third party from whom the bar received them; or

(C) designation of a commercial photocopy service to which the bar will deliver the original documents to be copied, at the requesting party’s expense, if the photocopy service agrees to preserve and return the original documents and not release them to any person without the bar’s consent.

(q) Costs.

(1) Taxable Costs. Taxable costs of the proceedings include only:

(A) investigative costs, including travel and out-of-pocket expenses;

(B) court reporters’ fees;

(C) copy costs;

(D) telephone charges;

(E) fees for translation services;

(F) witness expenses, including travel and out-of-pocket expenses;

(G) travel and out-of-pocket expenses of the referee;

(H) travel and out-of-pocket expenses of counsel in the proceedings, including of the respondent if acting as counsel; and

(I) an administrative fee in the amount of $1250 when costs are assessed in favor of the bar.

(2) Discretion of Referee. The referee has discretion to award costs and, absent an abuse of discretion, the court will not reverse the referee’s award.

(3) Assessment of Bar Costs. The referee may assess the bar’s costs against the respondent when the bar is successful in whole or in part, unless the respondent shows that the costs of the bar were unnecessary, excessive, or improperly authenticated.

(4) Assessment of Respondent’s Costs. The referee may assess the respondent’s costs against the bar if the bar is unsuccessful in prosecuting a matter and the bar raised no justiciable issue of either law or fact.

(5) Time for Filing Motion to Assess Costs. A party must file a statement of costs incurred in a referee proceeding and a request for payment of same within 15 days after written notice by the referee that the report of referee has been completed or at the time that a guilty plea for consent judgment is filed. The party from whom costs are sought may file an objection within 10 days from the date the motion was filed. Failure to timely file a motion without good cause waives of the right to request reimbursement of costs or to object to a request for reimbursement of costs. This subdivision does not require the filing of a motion to assess costs before the referee when doing so is not appropriate. Court Comment A comprehensive referee’s report under subdivision (m) is beneficial to a reviewing court so that the court need not make assumptions about the referee’s intent or return the report to the referee for clarification. The referee’s report should list and address each issue in the case and cite to available authority for the referee’s recommendations concerning guilt and discipline.