Bench Memorandum: Duties and Responsibilities of Lawyers and Supervisory Lawyers

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BENCH MEMORANDUM
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MATTER—Lawyer Misconduct; Basic Duties and Responsibilities of Lawyers and Supervisory

Lawyers Under The Florida Bar’s Rules of Professional Conduct
AUTHOR—Hon. William H. Burgess, III
DATE—April 7, 2021
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This memorandum summarizes the basic professional duties and responsibilities

of lawyers and supervisory lawyers under The Florida Bar’s Rules of
Professional Conduct.
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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Part I. Duties and Responsibilities of Individual Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Standards of Professional Conduct Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Lawyer Signature and the Duty to Investigate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Oath and Verification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Duty to Cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
E. Duty of Candor Toward the Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Duty to Disclose False Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Criminal or Fraudulent Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. Ex Parte Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Extent of Lawyer’s Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
F. Duty to Report Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
G. Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Required Steps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
a. Knowledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
b. Client Confidences or Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
c. Violation of a Disciplinary Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 13
d. “Substantial Question” as to Honesty, Trustworthiness, or Fitness to
Practice Law or Hold Judicial Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. When to Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. To Whom to Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4. Reporting Other Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
H. Violating or Attempting to Violate the Rules of Professional Conduct, Knowingly
Assisting or Inducing Another to Do So, or Doing So Through the Acts of Another . . . . . . . . . . 16
1. Knowingly Assisting or Inducing Another to Violate the Rules of
Professional Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Dishonesty, Fraud, Deceit, and Misrepresentation . . . . . . . . . . . . . . . . . . . 18
3. Conduct Prejudicial to the Administration of Justice. . . . . . . . . . . . . . . . . . 21
I. Misconduct Toward Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1. Impugning the Qualification and Integrity of Judges. . . . . . . . . . . . . . . . . . 21
2. Motion to Disqualify a Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Part II: Duties and Responsibilities of Supervisory Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. Rule 4-5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. Rule 4-5.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
C. Rule 4-5.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
D. Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
E. Public Defenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
F. Reasonable Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
G. Burden and Elements of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Appendix: Oath of Admission to The Florida Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-1
Florida Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-1
Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-1
Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-1
Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-2
Ethics Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-2
Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-2
Law Review Articles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-3
Other References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Auth-3
Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tbl of Cases-1
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Introduction.
A bar disciplinary action must serve three purposes: the judgment must be fair to society,
it must be fair to the attorney, and it must be severe enough to deter other attorneys from similar
misconduct.1
A general lack of respect and professionalism displayed toward the trial judge and
opposing counsel in statements made in court and in court filings, while an inconvenience or a
mere slight to those initially confronted by it, ultimately emboldens others to engage in similar
unprofessional or disrespectful acts, the net effect of which is the gradual erosion of public
confidence in the courts and the decisions rendered by them. All lawyers in Florida took the
Oath of Admission to The Florida Bar prior to his or her admission, wherein he or she
affirmatively committed to “maintain the respect due to courts of justice and judicial officers.”
This commitment is not extraneous to, but coextensive with the obligations set out in the Bar
Rules. The Florida Supreme Court expects all lawyers to conduct themselves in a respectful and
professional manner when accessing the courts or appearing before a judicial officer, regardless
of the form or capacity in which the appearance occurs.2
1
Florida Bar v. Lawless, 640 So. 2d 1098, 1100 (Fla. 1994).
2
See Code for Resolving Professionalism Complaints, Standards of Professionalism (prohibiting members
of the Bar from engaging in unprofessional conduct and defining such conduct as “substantial or repeated violations
of the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, The Florida Bar
Professionalism Expectations, The Rules Regulating The Florida Bar, or the decisions of The Florida Supreme
Court”); In re Code for Resolving Professionalism Complaints, 116 So. 3d 280 (Fla. 2013); Florida Bar v.
Lawyer Misconduct; Basic Duties and Responsibilities

of Lawyers and Supervisory Lawyers Under The
Florida Bar’s Rules of Professional Conduct
2 Bench Memorandum (April 7, 2021)
I. Duties and Responsibilities of Individual Lawyers.
A. Standards of Professional Conduct Generally.
All members of The Florida Bar are required to comply with the Rules of Professional
Conduct.3 A license to practice law confers no vested right to the holder thereof but is a
conditional privilege that is revocable for cause.4 The Florida Constitution gives the Supreme
Court of Florida exclusive jurisdiction over the discipline of persons admitted to the practice of
law in Florida,5 which includes the inherent power and duty to prescribe standards of conduct for
lawyers, to determine what constitutes grounds for discipline of lawyers, to discipline for cause
lawyers admitted to practice law in Florida, and to revoke the license of every lawyer whose
unfitness to practice law has been duly established.6
Subject to the supervision and review of the Supreme Court of Florida, this jurisdiction is
administered through The Florida Bar’s board of governors, grievance committees, and referees.
These entities have the jurisdiction and powers necessary to conduct the proper and speedy
disposition of any investigation or cause, including the power to compel the attendance of
witnesses, to take or cause to be taken the deposition of witnesses, and to order the production of
books, records, or other documentary evidence. Each member of these agencies has the power to
administer oaths and affirmations in any manner within the jurisdiction of the agency.7
Pursuant to Rule 3-5.5, the jurisdiction of the circuit courts is concurrent with that of The
Florida Bar under the Rules of Discipline, with the forum first asserting jurisdiction in a
disciplinary matter retaining jurisdiction to the exclusion of the other forum until the final
determination of the cause.8 The circuit court possesses continuing supervisory authority to
determine if sanctions are appropriate for any ethical violation or attorney misconduct even after
a cause has been dismissed or a nolle prosequi has been entered.9
Patterson, 257 So. 3d 56, 65-66 (Fla. 2018).

3
R. Regulating Fla. Bar 1-10.1.
4
5
Fla. Const. Art. 5 § 15.
6
7
R. Regulating Fla. Bar 3-3.1; Florida Bar v. McCain, 330 So. 2d 712, 714 (Fla. 1976).
8
9
Fla. Const. Art 5 § 5(b); R. Regulating Fla. Bar 3-3.5. See also U.S. v. Seltzer, 227 F. 3d 36, 41-41 (2d
Cir. 2000) (discussing trial court’s inherent power to impose sanctions).

The standards of professional conduct required of members of the bar are not limited to
the observance of rules and avoidance of prohibited acts, and the enumeration of certain
categories of misconduct as constituting grounds for discipline are not all-inclusive, nor is the
failure to specify any particular act of misconduct to be construed as tolerance of the act of
misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and
justice may constitute a cause for discipline.10
B. Lawyer Signature and the Duty to Investigate.
The signature of a lawyer on a document constitutes a certificate that: (1) the lawyer has
read the document; (2) to the best of the lawyer’s knowledge, information, and belief, there is
good ground to support the document; (3) the document is not interposed for delay; and (4) the
document contains no confidential or sensitive information, or that any such confidential or
sensitive information has been properly protected by complying with the provisions of rules
2.420 and 2.425.11 Bar Rule 4-1.1 establishes the duty of a lawyer to provide competent
representation to a client, including thoroughness and preparation reasonably necessary for the
representation.12 Bar Rule 4-3.1 imposes a duty on lawyers not to bring or defend a proceeding,
or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is
not frivolous.13 Bar Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial
to the administration of justice.14
The effect of these rules is that a lawyer filing a pleading or making an allegation to a
court must make an inquiry reasonable under the circumstances to ensure that the allegations and
other factual contentions have evidentiary support and that the pleading or allegation is not
groundless and brought in bad faith before signing the document. This duty is comparable to the
duty to investigate found in Rule 11(a) of the Federal Rules of Civil Procedure,15 the federal
10
11
Fla. R. Jud. Admin. 2.515(a).
12
13
14
R. Regulating Fla. Bar 4-8.4(d).
15
F.R.C.P. 11. See also Fla. R. Workers Comp. P. 4.095(c)(3); Fla. R. Crim. P. 3.220(n)(3); §
120.569(2)(e), Fla. Stat.

sanctions rule. In determining the reasonableness of an inquiry for purposes of sanctions, an
objective standard is applied.16
C. Oath and Verification.
False swearing in a judicial proceeding is an egregious species of dishonesty and is

patently prejudicial to the administration of justice: This is doubly so when it is the lawyer who is
the perjurer.17
To “swear” means to declare on oath the truth.18 An oath is any form of solemn
attestation by which a person signifies that such person’s oral or written statement is true.19 This
requires that the declarant state on oath that the fact alleged is true, to his or her knowledge, not
that he or she believes it to be true because someone else has told him or her that it is.20 The key
to a valid oath is that perjury will lie for its falsity. Such an oath must be an unequivocal act in
the presence of an officer authorized to administer oaths by which the declarant knowingly attests
to the truth of a statement and assumes the obligation of an oath. It is essential to the offense of
perjury that the statement considered perjurious was given under an oath actually administered.21
The distinction between an oath and a bare assertion is an unambiguous act done and
clothed in such form as to characterize and evidence it: In order to have a valid statement under
oath, the attention of the person to be sworn must be called to the fact that his or her statement is
not a mere assertion, but must be sworn to, and he or she must do some corporal act in
recognition of this.22
To “verify” something means to prove it to be true, to confirm or establish the truth or

truthfulness of the fact, or to authenticate it.23 “Verification” is a formal declaration made in the
presence of an authorized officer, such as a notary public or, in some jurisdictions, under oath but
16
See, e.g., Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d 42 (Fla. 1st DCA 2000); O’Neil v.
Retirement Plan for Salaried Employees of RKO, 1992 WL 7839 (S.D.N.Y. 1992).
17
Montgomery Bar Ass’n v. Hecht, 456 Pa. 13, 317 A. 2d 597 (Pa. 1974).
18
State v. Upton, 392 So. 2d 1013, 1016 (Fla. 5th DCA 1981).
19
See 58 Am. Jur. 2d, Oath and Affirmation § 1.
20
See State v. Upton, 392 So. 2d 1013, 1016 (Fla. 5th DCA 1981).
21
See Collins v. State, 465 So. 2d 1266, 1268 (Fla. 2d DCA 1985).
22
See 58 Am. Jur. 2d Oath and Affirmation § 16.
23
Black’s L. Dict. (11th ed. 2019).

not in the presence of such an officer, whereby one swears to the truth of the statements in the
document.24 Under Florida law, the requirement that a document be verified means that the
document must be signed or executed by a person and that the person must state under oath that
the facts or matters stated or recited in the document are true, or words to that effect.25
A verified motion functions as an affidavit.26 A person who knowingly makes a false

declaration under section 92.525(2), Fla. Stat., is guilty of the crime of perjury by false written
declaration, a felony of the third degree.27
D. Duty to Cooperate.
The duty to cooperate with opposing counsel is a basic requirement of being licensed to
practice law in Florida. The Oath of Admission to The Florida Bar, for example, obligates all
Florida lawyers to “employ for the purpose of maintaining the causes confided to me such means
only as are consistent with truth and honor,” and to pledge “fairness,28 integrity, and civility” to
opposing parties and their counsel in court and in all written and oral communications.
Likewise, The Florida Bar Creed of Professionalism requires lawyers to “strictly adhere to the
spirit as well as the letter of [the legal] profession’s code of ethics, to the extent that the law
permits and ... at all times be guided by a fundamental sense of honor, integrity, and fair play.”
These principles are embodied in the following Rules Regulating The Florida Bar: Rule 3-4.3,29
24
25
§ 92.525(4)(c), Fla. Stat. A verification which is based on “information and belief” is an insufficient
verification because it is qualified in nature, “belief” indicating that the “verification” is not made on the basis of
personal knowledge. See Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528, 530 (Fla. 2d DCA 2010).
26
See In re Air Safety International, L.C., 2004 WL 443990, 17 Fla. L. Weekly Fed. B 92 (S. D. Fla. Bankr.
2004).
27
§ 92.525(3), Fla. Stat.
28
Fairness to opposing parties and their counsel means treating them in a way that is right and reasonable, in
a manner that is even-handed, impartial, honest, and respectful, and without favoritism or discrimination. See
Black’s L. Dict. 595 (7th ed. 1990).
29
“The standards of professional conduct required of members of the bar are not limited to the observance
of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting
grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed
as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty
and justice may constitute a cause for discipline . . .” R. Regulating Fla. Bar 3-4.3.

Rule 4-3.3,30 Rule 4-3.4,31 and Rule 4-8.4(d).32 The specific purposes of these pledges and duties
is to eliminate the improper “gotcha” tactics that generate disputes that unfairly and needlessly
consume public and private resources while delaying the process of justice and making it more
expensive,33 as well as to outlaw argumentum ad hominem34 that subverts the administration of
justice and undermines the public’s confidence in our system of justice.35
E. Duty of Candor Toward the Tribunal.
Rule 4-3.3 governs the conduct of a lawyer who is representing a client in the proceedings
of a tribunal. It also applies when the lawyer is representing a client in an ancillary proceeding
conducted pursuant to the tribunal’s adjudicative authority, such as a deposition. The rule sets
forth the special duties of lawyers as officers of the court to avoid conduct that undermines the
integrity of the adjudicative process. Although a lawyer in an adversary proceeding is not
required to present a disinterested exposition of the law or to vouch for the evidence submitted in
a cause, the lawyer must not allow the tribunal to be misled by false statements of law, fact, or
evidence that the lawyer knows to be false.36
30
Lawyers, as officers of the court, have a special duty “to avoid conduct that undermines the integrity of the
adjudicative process.” R. Regulating Fla. Bar 4-3.3 comment.
31
“Fair competition in the adversary system is secured by prohibitions against destruction or concealment of
evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” R. Regulating
Fla. Bar 4-3.4 comment.
32
“A lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the
administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or
discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis . . .” R. Regulating
Fla. Bar 4-8.4(d).
33
See Gonzalez v. Quinco Electrical, Inc., 171 So. 3d 153 (Fla. 1st DCA 2015).
34
Argumentum ad hominem (“argument against the person”) is a logical fallacy in which a claim or
argument is rejected on the basis of some irrelevant fact about the person presenting the claim or argument. It
comprises an attack against the character, circumstances or actions of the person making the claim or argument and
the taking of this attack to be evidence against the claim or argument the person is making. It is a fallacy because, in
most cases, the character, circumstances, or actions of the person have no bearing on the truth, falsity, or quality of
the claim or argument being made.
35
“The proscription [of Rule 4-8.4(d)] extends to any characteristic or status that is not relevant to the proof
of any legal or factual issue in dispute. Such conduct, when directed towards litigants, jurors, witnesses, court
personnel, or other lawyers . . . subverts the administration of justice and undermines the public’s confidence in our
system of justice, as well as notions of equality.” R. Regulating Fla. Bar 4-8.4(d) comment.
36
R. Regulating Fla. Bar. 4-3.3 comment.

1. Duty to Disclose False Evidence.
It is misconduct for a lawyer to knowingly:
1. Make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;37
2. Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid

assisting a criminal or fraudulent act by the client;38
3. Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel;39 or
4. Offer evidence that the lawyer knows to be false. A lawyer may not offer testimony
that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a
lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and
the lawyer comes to know of its falsity, the lawyer is required to take reasonable remedial
measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence that the lawyer reasonably believes is false.40
An advocate is responsible for pleadings and other documents prepared for litigation, but
is usually not required to have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on the client’s behalf, and
not assertions by the lawyer.41 However, an assertion purporting to be on the lawyer’s own
knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made
only when the lawyer knows the assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the
37
R. Regulating Fla. Bar 4-3.3(a)(1).
38
39
40
41
By comparison, R. Regulating Fla. Bar 4-3.1 provides, “A lawyer shall not bring or defend a proceeding,
or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which
includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the
defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may
nevertheless so defend the proceeding as to require that every element of the case be established.”

equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 4-1.2(d) not to
counsel a client to commit or assist the client in committing a fraud applies in litigation.42
Legal argument is a discussion seeking to determine the legal premises properly

applicable to the case at issue. Legal argument based on a knowingly false representation of law
constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested
exposition of the law, but must recognize the existence of pertinent legal authorities. An
advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has
not been disclosed by the opposing party.43
Rule 4-3.3 requires that a lawyer refuse to offer evidence that the lawyer knows to be
false, regardless of the client’s wishes This duty is premised on the lawyer’s obligation as an
officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer
does not violate this rule if the lawyer offers the evidence for the purpose of proving its falsity.
Rule 4-3.3 also permits the lawyer to refuse to offer testimony or other proof that the lawyer
reasonably believes to be false.44
2. Criminal or Fraudulent Conduct.
A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to
the proceeding is required to take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.45
3. Ex Parte Proceedings.
In an ex parte proceeding a lawyer is required to inform the tribunal of all material facts
known to the lawyer that will enable the tribunal to make an informed decision, whether or not
the facts are adverse.46 The comments to Rule 4-3.3 explain this duty as follows:
Ordinarily, an advocate has the limited responsibility of presenting 1 side of the

matters that a tribunal should consider in reaching a decision; the conflicting
position is expected to be presented by the opposing party. However, in an ex
42
R. Regulating Fla. Bar 4-3.3 comment.
43
44
45
R. Regulating Fla. Bar 4-3.3(b).
46
R. Regulating Fla. Bar 4-3.3(c).

parte proceeding, such as an application for a temporary injunction, there is no
balance of presentation by opposing advocates. The object of an ex parte
proceeding is nevertheless to yield a substantially just result. The judge has an
affirmative responsibility to accord the absent party just consideration. The
lawyer for the represented party has the correlative duty to make disclosures of
material facts known to the lawyer and that the lawyer reasonably believes are
necessary to an informed decision.47
4. Extent of Lawyer’s Duties.
The duties stated in Rule 4-3.3 continue beyond the conclusion of the proceeding and
apply even if compliance requires disclosure of information otherwise protected by Rule 4-1.6.48
F. Duty to Report Misconduct.
The modern foundation for the idea that lawyers should step forward and speak out
against the misconduct or dishonesty of other lawyers is found in Canon 29 of the American Bar
Association’s 1908 Code of Professional Ethics:
29. Upholding the Honor of the Profession. Lawyers should expose without
fear or favor before the proper tribunals corrupt or dishonest conduct in the
profession, and should accept without hesitation employment against a member of
the Bar who has wronged his client. The counsel upon the trial of a cause in
which perjury has been committed owe it to the profession and the public to bring
the matter to the knowledge of the prosecuting authorities. The lawyer should aid
in guarding the Bar against the admission to the profession of candidates unfit or
unqualified because deficient in either moral character or education. He should
strive at all times to uphold the honor and to maintain the dignity of the profesion
and to improve not only the law but the administration of justice.49
The use of the word “should” as opposed to “shall” or “must” made the rule discretionary and not
mandatory from 1908 to 1969 in states that adopted the 1908 Canons. However, in 1970 the
American Bar Association (and thereafter all states, in some form) adopted the Model Code of
Professional Responsibility and Disciplinary Rule 1-103, which, inter alia, transformed the
reporting requirement regarding the misconduct of other lawyers from “should” to “shall.” In
47
48
49
American Bar Association, Final Report of the Committee on Code of Professional Ethics (August 1908),
p. 583.

1983, the American Bar Association adopted the Model Rules of Professional Conduct, which
were designed to replace the Model Code. This resulted in the modern form of Model Rule 8.3,
with the present qualifications of the mandatory reporting requirement.50
Pursuant to Rule 4-8.3, a lawyer who knows that another lawyer has committed a
violation of the Rules of Professional Conduct that raises a substantial question as to that
lawyer’s honesty, trustworthiness, or fitness as a lawyer in other aspects, must inform the
appropriate professional authority.51 Similarly, a lawyer who knows that a judge has committed a
violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s
fitness to office must inform the appropriate authority.52
Rule 4-8.3 does not require disclosure of information:
1. Otherwise protected by Rule 4-1.6 (Confidentiality of Information);53
2. Gained by a lawyer while serving as a mediator or mediation participant if the

information is privileged or confidential under applicable law;54 or
3. Gained by a lawyer or judge while participating in an approved lawyers assistance

program unless the lawyer’s participation in an approved lawyers assistance program is part of a
disciplinary sanction, in which case a report about the lawyer who is participating as part of a
disciplinary sanction must be made to the appropriate disciplinary agency.55
A lawyer employed by or acting on behalf of the law practice management advice and
education program established and supervised by the Board of Governors of The Florida Bar is
exempt from the obligation to disclose knowledge of the conduct of another member of The
Florida Bar that raises a substantial question as to the other lawyer’s fitness to practice if the
50
See Michael J. Burwick, “You Dirty Rat!! Model Rule 8.3 and Mandatory Reporting of Attorney
Misconduct,” 8 Geo. J. Legal Ethics 137 (Fall 1994).
51
R. Regulating Fla. Bar 4-8.3(a).
52
R. Regulating Fla. Bar 4-8.3(b). The counterpart rule for judges is Code of Judicial Conduct, Canon 3,
which provides that a judge who receives information or has actual knowledge that substantial likelihood exists that
another judge has committed a violation of the Code of Judicial Conduct, or a lawyer has committed a violation of
the Rules Regulating The Florida Bar, shall take appropriate action. Code of Jud. Conduct, Canon 3D(1) and (2).
53
R. Regulating Fla. Bar 4-8.3(c)(1).
54
55

lawyer is employed by or acting on behalf of the program acquired the knowledge while engaged
in the course of the lawyer’s regular job duties as an employee of the program.56
An individual who files a complaint against a lawyer and makes no public announcement
of the complaint, thereby allowing the grievance procedure to run its natural course, is afforded
absolute immunity from a defamation action by the complained-against lawyer. However, if
after filing a complaint, the complainant complains publicly or outside the grievance process,
then the afforded immunity ceases to exist.57 This immunity also does not go so far as to shield a
complainant from an action by the State for abusing the process by filing a false complaint under
penalties of perjury.58 An at-will employee who reports misconduct under Rule 4-8.3 is not
protected under Florida’s Private Sector Whistle-Blower Act, sec. 448.102, Fla. Stat.59
In situations where a lawyer is required to report a violation, the lawyer’s failure to do so

would constitute misconduct under Rule 4-8.4(a).60 Although Rule 4-8.3 does not require a
lawyer to report his or her own misconduct, the lawyer must report the misconduct of others even
if doing so would implicate the reporting lawyer’s own conduct as well.61
G. Process.
The four-step process for determining whether mandatory reporting is required is as

follows:62
56
57
Tobkin v. Jarboe, 710 So. 2d 975, 977 (Fla. 1998).
58
State v. Rutherford, 863 So. 2d 445, 447 (Fla. 4th DCA 2004).
59
Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787 (Fla. 2d DCA 2005) (Bar
rules are not either laws, rules, or regulations as defined in section 448.101(4), despite their designation as “rules.”).
60
See Florida Bar Ethics Opinion 94-5 (April 30, 1995).
61
See Florida Bar v. Gross, 610 So. 2d 442 (Fla. 1992) (attorney disciplined for violation of Rule 4-8.3(a)
for failure to report another attorney for bribing respondent when respondent was a sitting judge); Matter of Rivers,
285 S.C. 492, 494, 331 S.E. 2d 332, 333 (S.C. 1984) (public reprimand of inexperienced lawyer who aided his
partner’s use of a private investigator to contact potential jurors in violation of disciplinary rule and failure to report
partner as well as his own role in the violation).
62
See D.C. Ethics Op. 246 (October 18, 1994).

1. Required Steps.
a. Knowledge.
Rule 4-8.3 should be read to require a lawyer to report misconduct only if he or she has a
clear belief that misconduct has occurred, and possesses actual knowledge of the pertinent facts.
The standard for assessing knowledge is objective. Although absolute certainty is not required, a
mere suspicion that misconduct has occurred does not give rise to an obligation to report. This
knowledge may be inferred from circumstances.63 The standard of sufficient knowledge is an
objective one, not tied to the subjective beliefs of the lawyer in question.
The supporting evidence must be such that a reasonable lawyer under the
circumstances would have formed a firm opinion that the conduct in question had
more likely than not occurred and that the conduct, if it did occur, raises a
substantial question as to the purported offender’s honesty, trustworthiness, or
fitness to practice law in other respects.64
Ignorance is no excuse. Inexperienced lawyers are held to the same standards as their
more experienced colleagues. It is the duty of lawyers to discover and comply with the rules of
practice and professional responsibility governing the legal profession.65
b. Client Confidences or Secrets.
The lawyer must consider whether the knowledge of misconduct he or she possesses is a
client “confidence” under Rule 4-1.6 or Rule 4-8.3(c) and (d). If information is protected under
Rule 4-8.3(c) and (d) or Rule 4-1.6, it is specifically exempted from the mandatory reporting
requirement of Rule 4-8.3(a) and (b).
c. Violation of a Disciplinary Rule.
Once the lawyer has concluded that he or she “knows” the relevant facts, and that his or
her reporting will not require disclosure of information protected by Rule 4-1.6 or Rule 4-8.2(c)
and (d), he or she must satisfy himself or herself that the conduct in question rises to the level of
a disciplinary violation. For example, the lawyer must believe that the other lawyer engaged in
63
See American Bar Association, Model Rules of Professional Conduct 1.0(f) (“Knowingly,” “known,” or
“knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from
circumstances.).
64
Attorney U v. The Mississippi Bar, 678 So. 2d 963, 972 (Miss. 1996).
65
See Matter of Rivers, 285 S.C. 492, 494, 331 S.E. 2d 332, 333 (S.C. 1984).

conduct clearly violative of his or her ethical obligations to represent a client competently and
diligently, as required by Rules 4-1.1 and 4-1.3. If the inquirer has doubts as to whether a
disciplinary rule has been violated by the other lawyer, he or she probably does not have the
requisite degree of certainty to activate his or her own ethical obligations to report under Rule 4-
8.3.
d. “Substantial Question” as to Honesty, Trustworthiness, or Fitness

to Practice Law or Hold Judicial Office.
After a lawyer concludes that he or she has the requisite knowledge of another lawyer’s
clear violation of the disciplinary rules (or the rules of judicial conduct if the lawyer is a judge)
and that he or she may reveal the knowledge without violating Rule 4-1.6 or Rule 4-8.3 (c) and
(d), the lawyer is required to do so only if the violation raises a substantial question as to that
lawyer’s honesty, trustworthiness, or fitness as a lawyer in other aspects, or raises a substantial
question as to the judge’s fitness for office. This significant limitation on the reporting
requirement means that not all violations must be reported, only the most serious ones. Whether
a particular violation of the disciplinary rules meets the “substantial question” test must be
determined on a case-by-case basis using a measure of judgement rather than a clear litmus test.66
Rule 4-8.3(a) and (b) deals only with situations in which a lawyer is obligated to report
another lawyer’s misconduct, so that his or her failure to report will itself violate the Rules of
Professional Conduct and subject him or her to disciplinary action.67 Stated otherwise, this rule
limits the reporting obligation to those offenses that a self-regulating profession must vigorously
endeavor to prevent. A measure of judgment is required in complying with the provisions of this
rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum
of evidence of which the lawyer is aware.68
2. When to Report.
Rule 4-8.3 does not specify when a report has to be made.69 The prevailing view is that in
order to further the purposes of the Rule, namely, to protect the public and the profession from
66
American Bar Association Model Rules of Professional Conduct 8.3(a) comment; Attorney U v.
Mississippi Bat, 678 So. 2d 963, 972-973 (Miss. 1996).
67
See In re Himmel, 125 Ill. 2d 531, 533 N.E. 2d 790 (Ill. 1989) (one year suspension of lawyer who failed
to report that another lawyer had been converting client funds).
68
See R. Regulating Fla. Bar 4-8.3 comment; American Bar Association, Model Rules of Professional
Conduct 8.3 comment [3].
69
See In re Comfort, 159 P. 3d 1011 (Kan. 2007) (“We are unwilling to use this case as a vehicle to impose
a time limit for reporting lawyer misconduct to the Disciplinary Administrator.”).

the actions of unscrupulous attorneys, the reporting requirement must be read to require reporting
to an appropriate authority promptly,70 within a reasonable time under the circumstances.71 There
may be situations in which it is appropriate for a lawyer to balance a client’s interest, which may
be furthered by a delay in reporting, against the public’s interest in prompt reporting of
misconduct by a lawyer who may engage in similar misconduct again if not disciplined. In
determining whether there is room for judgment as to how promptly a report must be made, a
lawyer should balance the severity of the misconduct engaged in by the other lawyer and the
likelihood that he or she will engage in such misconduct again in the future to the detriment of
other clients against the degree of prejudice that the reporting lawyer’s client will suffer from
prompt reporting.72 Because the Rule is silent regarding the timing of such report, a lawyer may
wait until the conclusion of the litigation at issue if the lawyer determines that immediate
reporting may hurt the lawyer’s client.73
3. To Whom to Report.
Rule 4-8.3 does not define “appropriate professional authority” in subsection (a)
pertaining to reporting misconduct of other lawyers or “appropriate authority” in subsection (b)
pertaining to reporting misconduct of judges. The prevailing view is that the report should be
made to a lawyer or judge disciplinary agency, not to a court.74 In the case of a junior lawyer
who knows of misconduct by a senior lawyer, including a supervisory lawyer, in the same firm or
70
“A lawyer who becomes aware of professional misconduct that raises a substantial question as to a
lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects should report the misconduct promptly, to
the extent required by Rule 8.3(a), and not use it as a bargaining chip in the civil case.” Use of Threatened
Disciplinary Complaint Against Opposing Counsel, American Bar Association Formal Opinion 94-383 (July 5,
1994) (footnote omitted).
71
See U.S. v. Cantor, 897 F. Supp. 110, 114 (S.D.N.Y. 1995); In re Riehlmann, 891 So. 2d 1239 (La. 2005)
(wait of five years before reporting misconduct of dying friend is not “prompt” and warrants discipline); In re
Anderson, 769 A. 2d 1282 (Vt. 2000) (waiting nine months wait before reporting partner’s mishandling of client’s
trust fund account is too long)..
72
See N.Y.C. Eth. Op. 1900-3 (May 4, 1990).
73
See S.C. Ethics Advisory Opinion 16-04 (2016).
74
Model Rule 8.3 comment [1] mentions the initiation of a disciplinary investigation, and comment [3]
states “A report should be made to the bar disciplinary agency unless some other agency, such as a peer review
agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial
misconduct” American Bar Association, Model Rules of Professional Conduct 8.3: Reporting Professional
Misconduct. See also Santander Sec. LLC v. Gamache, Civ. No. 17-317, 2017 WL 1208066, 2017 BL 108486
(E.D. Pa. April 3, 2017) (report must be made to lawyer disciplinary agency, not a court); Ohio Ethics Op. 2007-1
(February 9, 2007) (lawyer’s professional duty is fulfilled by reporting professional misconduct to either the Office
of Disciplinary Counsel or to a certified grievance committee of a bar association and is not fulfilled by reporting a
lawyer’s misconduct to a tribunal).

organization, reporting the violation to the firm’s or organization’s managing body or other
senior lawyer does satisfy the junior lawyer’s duty to report under the Rule.75 It is arguable,
however, that a junior lawyer’s reporting duty can be satisfied where it is reasonable for the
junior lawyer to assume in the circumstances that those informed will report the offense to the
appropriate authority.76
4. Reporting Other Violations.
Rule 4-3.8 neither limits the circumstances in which a lawyer is permitted to make such a
report (except where Rule 4-1.6 and Rule 3-8.3(c) and (d) precludes disclosure), nor does it
define those situations in which reporting might be appropriate if not mandatory: A lawyer is
always free to report evidence of what might constitute improper conduct by another lawyer,
subject to the obligation to protect client confidences. The lawyer need not have actual proof of
misconduct; a good faith belief or suspicion that misconduct has been committed is a sufficient
basis for making a report. It goes without saying, of course, that it would be improper for a
lawyer to make a report of misconduct and subject another lawyer to investigation without a
reasonable basis for doing so, or solely to gain a tactical advantage in a matter.77
H. Violating or Attempting to Violate the Rules of Professional Conduct,

Knowingly Assisting or Inducing Another to Do So, or Doing So Through the Acts of
Another.
Rule 4-8.4 specifically provides that a lawyer shall not violate or attempt to violate the
Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the
acts of another,78 engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,79 or
engage in conduct in connection with the practice of law that is prejudicial to the administration
of justice.80
75
See Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A. 2d 873, 884 n.19 (D.C. Ct. App. 1998)
(noting that Rule 8.3(a) requires that misconduct be reported to disciplinary authorities, not to supervisory lawyers);
Conn. Eth. Op. 96-20, 1996 WL 785137 (Conn. Bar Ass’n Dec. 6, 1996) (advising associate that Rule 8.3(a)
compelled report of fellow associate’s fraudulent billing to disciplinary authorities even though associate had
reported the misconduct to firm’s managing partner who acted on the report).
76
See Restatement (Third) of the Law Governing Lawyers § 5, comment i .
77
D.C. Ethics Op. 246 (October 18, 1994).
78
79
80

1. Knowingly Assisting or Inducing Another to Violate the Rules of
Professional Conduct or Doing So Through the Acts of Another.
Pursuant to Rule 4-8.4(a), lawyers are subject to discipline when they violate or attempt
to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do
so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s
behalf.81 Thus, a lawyer is not allowed to have someone else do something the lawyer is not
allowed to do himself or herself that would violate the Rules of Professional Conduct if the
lawyer did it. Examples of conduct prohibited by this rule include: having a client call to harass
the lawyer’s then-spouse and make other threats;82 using a subordinate employee or other third
party to contact a person represented by opposing counsel;83 repeatedly causing staff members to
falsely notarize mortgages and tax filings;84 permitting a nonlawyer employee to sign and file a
misleading motion and engage in the unauthorized practice of law;85 assisting another lawyer in
the unlicensed practice of law;86 communicating through a third party with the judge presiding
over a case being litigated by the lawyer;87 and circulating contact information for judges and
soliciting nonlawyer members of the public to make direct contact with the judges regarding a
matter pending before them.88 It does not matter whether or not the other person is a willing
participant or was forced, coerced, or tricked into engaging in the prohibited conduct. This type
of misconduct can also implicate supervisory attorney duties and responsibilities in appropriate
circumstances.
81
R. Regulating Fla. Bar 4-8.4 comment. Note that the comments to the rule include the explanation that
“Subdivision (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally
entitled to take, provided that the client is not used to indirectly violate the Rules of Professional Conduct.”
82
Matter of Brooks, 324 S.C. 105, 477 S.E. 2d 98 (S.C. 1996).
83
Midwest Motor Sports v. Arctic Sales, Inc., 347 F. 3d 693 (8th Cir. 2003) (using a private investigator to
surreptitiously speak with and record the conversations of persons represented by opposing counsel); Babbs v.
Minton, 2004 WL 1367621 (Warren Co. Cir. Ct. Ky. 2004) (unreported) (use of reference check agency to contact
persons represented by opposing counsel); Humco, Inc. v. Noble, 31 S.W. 3d 916 (Ky. 2000). See also R.
Regulating Fla. Bar 4-4.2 (Communication With Person Represented by Counsel).
84
In re Davis, 974 A. 2d 170 (Del. 2009).
85
State ex rel. Oklahoma Bar Ass’n v. Patmon, 939 P. 2d 1155 (Okla. 1997).
86
In re Rosewold, 292 Kan. 136, 249 P. 3d 1199 (Kan. 2011).
87
In re Beck, 109 So. 3d 897 (La. 2013).
88
In re McCool, 172 So. 3d 1058 (La. 2015) (attorney’s use of internet and social media to make direct ex
parte contact with Louisiana Supreme Court and trial judges in Mississippi and Louisiana in an effort to influence
decisions in sealed, pending domestic litigations, resulting in hundreds of members of the public contacting judges
and making false and inflammatory statements).

2. Dishonesty, Fraud, Deceit, and Misrepresentation.
Rule 4-8.4(c) does not define dishonesty, fraud, deceit, or misrepresentation, but their
meanings are readily discernible.89
Dishonesty is deceitfulness as a character trait and includes behavior that deceives or

cheats people, and is synonymous with untruthfulness or untrustworthiness.90 Conduct showing
dishonesty is rationally related to fitness to practice law.91 Basic, fundamental dishonesty is a
serious character flaw that demonstrates the utmost disrespect for the courts, is destructive to the
legal system as a whole, and cannot be tolerated by a profession that relies on the truthfulness of
its members.92 Truth is the cornerstone of the judicial system; a license to practice law requires
allegiance and fidelity to the truth, and dishonesty on the part of a lawyer establishes his or her
unfitness to continue practicing law.93
Fraud is a knowing misrepresentation or knowing concealment of a material fact made to

induce another to act to his or her detriment. It has been defined to be any kind of artifice by
which another is deceived and fraud includes a reckless misrepresentation without justified belief
in its truth to induce another person to act to his or her detriment.94
Fraud on the court is fraud which is directed to the judicial machinery itself and includes
conduct perpetrated by officers of the court amounting to a scheme calculated to subvert the
integrity of the court itself, undermine the integrity of the proceeding, or interfere with the court’s
ability to impartially adjudicate a claim.95 Fraud on the court includes, for example, the willful
presentation to the court of false testimony and false argument, and the presentation to the court
of a motion containing materially untrue statements for the purpose of, and with the result of,
89
Florida Bar v. Cueto, 834 So. 2d 152 (Fla. 2002).
90
91
See In re Florida Bd. of Bar Examiners ex rel. M.A.R., 755 So. 2d 89, 92 (Fla. 2000).
92
See Florida Bar v. Head, 27 So. 3d 1 (Fla. 2010).
93
Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 200, 425 A. 2d 730, 733 (Pa. 1981).
94
95
Black’s L. Dict. (11th ed. 2019); Desimone v. Old Dominion Ins. Co., 740 So. 2d 1233 (Fla. 4th DCA
1999); Lockwood v. Bowles, 46 F.R.D. 625, 631-632 (D.D.C. 1969); Bulloch v. U.S., 763 F. 2d 1115, 1121 (10th
Cir. 1985); Kenner v. C.I.R., 387 F. 2d 689, 691 (7th Cir. 1968).

obtaining an order from the court which the court would not have otherwise provided, thereby
using the court as an instrument to further the misconduct and fraud.96
A variant of fraud on the court is fraud upon the judicial system, where the fraud is
perpetrated through, or affects, more than one cause or more than one court.97
The elements of fraud upon the court consist of conduct:
1. On the part of an officer of the court;
2. That is directed to the “judicial machinery” itself;
3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the
truth;
4. That is a positive averment or is concealment when one is under a duty to disclose;
5. That deceives the court.98
The intent requirement is satisfied by proof of actual intent to defraud, of willful

blindness to the truth, or of a reckless disregard for the truth. Cases dealing with fraud on the
court often turn on whether the improper actions are those of the parties alone, or if the lawyers
in the case are involved. As an officer of the court, every lawyer has a duty to be completely
honest in conducting litigation. When the party is the State of Florida, acting through the State
Attorney’s Office, the Office of Statewide Prosecution, the Office of the Attorney General, or
other government entities, the distinction between client and lawyer actions become meaningless.
The State acts only through its lawyers. Although there are cases holding that a “plan or scheme”
must exist in order to find fraud on the court, a scheme based on subjective intent to commit
fraud by a prosecutor or other government lawyer is not required and reckless disregard for the
truth is sufficient.99
Tampering with the administration of justice involves far more than an injury to a single
litigant. It is a wrong against the institutions set up to protect and safeguard the public,
96
See, e.g., In re E.I. du Pont de Nemours and Co., 918 F. Supp. 1524, 1540 (M.D. Ga. 1995).
97
See, e.g., U.S. v. Gjielli, 717 F. 2d 968, 979 (6th Cir. 1983) (prosecutor’s actions in obtaining a bogus writ
of habeas corpus ad testificandum was a fraud on the federal judicial system).
98
See Demjanjuk v. Petrovsky, 10 F. 3d 338, 348 (6th Cir. 1993).
99
See Demjanjuk v. Petrovsky, 10 F. 3d 338, 352-53 (6th Cir. 1993).

institutions in which fraud cannot complacently be tolerated consistently with the good order of
society.100 In determining the seriousness and appropriate sanctions for perpetrating a fraud on
the court, among the important factors to be evaluated are the extent of the party’s personal
responsibility, willfulness or bad faith, prejudice to the adversary, and impact on the integrity of
the judicial system.101
Deceit is the act of intentionally leading someone to believe something that is not true,
and includes a false statement made by a person knowingly or recklessly (i.e., not caring whether
it is true or false) with the intent that someone else will act on it.102
Misrepresentation is the act or instance of making a false or misleading assertion about

something, usually with the intent to deceive. The word denotes not just written or spoken words
but also any other conduct that amounts to a false assertion. Misrepresentation also includes an
incorrect, unfair, or false statement, or an assertion that does not accord with the facts.103
Concealment or even non-disclosure may have the effect of a misrepresentation.104
In order to sustain a violation of Rule 4–8.4(c), the Bar must prove intent, but the intent
element can be satisfied merely by showing that the conduct was deliberate or knowing.105
100
See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 64 S. Ct. 997, 88 L. Ed. 1250
(1944), overruled on other grounds, Standard Oil v. U.S., 428 U.S. 18 (1976).
101
Where fraud on the court is the underlying misconduct, “prejudice” encompasses not only the prejudice
to the litigants but also the impact on the judicial system and the threat to the integrity of the courts which cannot
command respect if they cannot maintain a level playing field amongst the participants. See Derzack v. County of
Allegheny, Pa., 173 F.R.D. 400, 415 (W.D.Pa. 1996).
102
103
104
Restatement (Second) of Contracts § 159 cmt. A (1979); Florida Bar v. Webster, 687 So. 2d 816, 817
(Fla. 1994) (misrepresentation can be by omission); In re Colvin, 300 Kan. 864, 870, 336 P. 3d 823, 828 (Kan.
2014) (same).
105
Florida Bar v. Brown, 905 So. 2d 76, 81 (Fla. 2005); see also Florida Bar v. Riggs, 944 So. 2d 167, 171
(Fla. 2006) (holding intent, as an element for disciplining a lawyer for engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation, is proven by establishing that the conduct was deliberate or knowing); Florida
Bar v. Barley, 831 So. 2d 163, 169 (Fla. 2002) (same); Florida Bar v. Fredericks, 731 So. 2d 1249, 1252 (Fla.
1999) (same).

3. Conduct Prejudicial to the Administration of Justice.
Rule 4-8.4(d) prohibits any conduct that is prejudicial to the administration of justice.106
While conduct that actually affects a given proceeding may be prejudicial to the administration of
justice, conduct that prejudices the system of justice as a whole, including unsuccessful attempts
to affect a proceeding, is also encompassed by Rule 4-8.4(d).107 Prejudice can come from a
single act or a series of acts, and can be committed in and out of court.108 There is no typical
form of conduct that prejudices the administration of justice. Instead, the dispositive inquiry is
whether the lawyer’s act or acts hampered the efficient and proper operation of the courts or of
ancillary systems upon which the courts rely, e.g., by causing delayed or protracted proceedings
and otherwise unnecessary oversight by the clerk of court and judicial officers.109 The fact that
the opposing party was never actually put at risk is immaterial, as prejudice to a party and
prejudice to the administration of justice are two different things.110
I. Misconduct Toward Judges.
Misconduct toward judges is a topic which is often misunderstood within the legal
profession. While no judge is above criticism, a lawyer’s comments about a judge that are false
or which are made with reckless disregard for their truth or falsity, particularly those deliberately
made for an unethical purpose, can have serious consequences for the lawyer making those
comments.
1. Impugning the Qualification and Integrity of Judges.
A judge’s reputation deserves to be protected against being cavalierly tarnished by false

and scandalous pleadings, because the damage done to the judge, the courts, the legal profession,
and the public by the assertion of slanderous allegations is irreparable, especially in the modern
internet age. An accusation of judicial impropriety is not a matter to be taken frivolously. An
106
Florida Bar re Amendments to Rules Regulating the Florida Bar, 624 So. 2d 720, 721 (Fla. 1993).
107
Florida Bar v. Machin, 635 So. 2d 938, 939-940 (Fla. 1994).
108
See Florida Bar v. Frederick, 756 So. 2d 79, 87 (Fla. 2000); Attorney Grievance Com’n v. Alison, 317
Md. 523, 565 A. 2d 660 (Ct. App. Md. 1989).
109
See Iowa Supreme Ct. Bd. Of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999);
Iowa Supreme Ct. Atty. Disciplinary Bd. v. Kingery, 871 N.W.2d 109, 121 (Iowa 2015). See also In re Riehlmann,
891 So. 2d 1239 (La. 2005) n. 6 (wait of five years before reporting misconduct of dying friend is conduct
prejudicial to the administration of justice and warrants discipline).
110
Matter of Hudson, 105 N.E. 3d 1089 (Ind. 2018) (prosecuting a criminal charge lawyer knew was not
supported by probable cause).

attorney bringing such an accusation has an obligation to obtain some minimal factual support
before leveling charges that carry explosive repercussions. When an attorney makes an
accusation of judicial impropriety without first undertaking a reasonable investigation of the truth
of that accusation, he injures the public, which depends upon the unbiased integrity of the
judiciary, the profession itself, whose coin of the realm is their ability to rely upon the honesty of
each other in their daily endeavors, and the courts, who must retain the respect of the public and
the profession in order to function as the arbiter of justice. Truth is the cornerstone of the
judicial system; a license to practice law requires allegiance and fidelity to truth.111
Although attorneys play an important role in exposing valid problems within the judicial
system, statements impugning the integrity of a judge, when made with reckless disregard as to
their truth or falsity, erode public confidence in the judicial system without assisting to publicize
problems that legitimately deserve attention.112
Bar Rule 4-8.2(a) provides that “A lawyer shall not make a statement that the lawyer
knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications
or integrity of a judge.”113 Recklessness in this sense may be described as the deliberate closing
of one’s eyes to facts that one had a duty to see or stating as fact things of which one was
ignorant.114 Rule 4-8.2(a) can be violated by a lawyer’s oblique derogatory remark, gratuitous
commentary, indirect suggestion, insinuation, or innuendo said in passing or inserted into a legal
document.115 Such recklessness is compounded where the lawyer making the statement falsely
asserts that the statement is based on personal knowledge or is otherwise “verified,” particularly
in those circumstances where the lawyer had a duty to investigate before making the statement.116
The honesty and integrity of a judge lies at the very heart of our judicial system. A judge
as a public official is neither sacrosanct nor immune from public criticism of his or her conduct
111
Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 181, 749 A. 2d 441, 449 (Pa. 2000).
112
Florida Bar v. Ray, 797 So. 2d 556, 560 (Fla. 2001).
113
114
See Office of Disciplinary Counsel v. Anonymous Attorney A, 552 Pa. 223, 233, 714 A. 2d 402, 407 (Pa.
1998).
115
See 5-H Corporation v. Padovano, 708 So. 2d 244, 247 (Fla. 1977); also Hamovitz v. Santa Barbara
Applied Research, Inc., 188 L.R.R.M. (BNA) 2337, 2010 WL 1337742 (W.D. Pa. 2010); In re Abbott, 925 A. 2d
482 (Del. 2007); Abraham v. Super Buy Tires Inc., 2007 WL 173846 (S.D. Cal. 2007); Lewis v. Wilcox, 2006 WL
8445891 (M.D. Ga. 2006); In re Wilkins, 777 N.E. 2d 714 (Ind. 2002).
116
See In re Pina, 602 B.R. 72 (S.D. Fla. 2019) (in passing off electronically filed schedules and statements
as having been verified when they had not been); Office of Disciplinary Counsel v. Wrona, 589 Pa. 337, 343, 908 A.
2d 1281, 1284 (Pa. 2006).

in office. However, the administration of the judicial process as an institution of government is a
sacred thing. A judge or court is not beyond bona fide comments and criticisms which do not
exceed the bounds of decency and truth or which are not aimed at the destruction of public
confidence in the judicial system as such. However, when the likely impairment of the
administration of justice is the direct product of false and scandalous accusations then the rule is
otherwise.117
Members of the bar possess, and are perceived by the public as possessing, special
knowledge of the workings of the judicial branch of government. Critical remarks from the Bar
thus have more impact on the judgment of the citizen than similar remarks by a layman would be
calculated to have.118
Ethical rules that prohibit attorneys from making statements impugning the integrity of
judges are not to protect judges from unpleasant or unsavory criticism. Rather, such rules are
designed to preserve public confidence in the fairness and impartiality of our system of justice.
Because members of the Bar are viewed as having unique insights into the judicial system, the
state’s compelling interest in preserving public confidence in the judiciary supports applying a
different standard than that applicable in defamation cases. The Florida Supreme Court, like
many other courts, has concluded that in attorney disciplinary hearings under Rule 4-8.2(a), the
standard to be applied is not whether the statement is false, but whether the attorney had an
objectively reasonable factual basis for making the statement. Adopting a subjective standard in
attorney disciplinary hearings would, by contrast, immunize all accusations, however reckless or
irresponsible, from censure as long as the attorney uttering them did not actually entertain serious
doubts as to their truth.119
The burden, thus, is on the lawyer who made the statement to produce an objectively
reasonable factual basis to support the statement.120 The lawyer has a duty to make a reasonable
inquiry into the veracity of his of her averments before they are made, and unsupported
suspicions, rumors, innuendo, and unsubstantiated hearsay do not give rise to an objective,
reasonable belief that an allegation is true.121 An attorney’s good faith subjective belief in the
117
State ex rel. Florida Bar v. Calhoon, 102 So. 2d 604, 608-609 (Fla. 1958).
118
See State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P. 2d 958, 969 (Okla. 1988).
119
Florida Bar v. Patterson, 257 So. 3d 56, 62 (Fla. 2018); Florida Bar v. Ray, 797 So. 2d 556, 559 (Fla.
2001).
120
Florida Bar v. Patterson, 257 So. 3d 56, 62 (Fla. 2018); Florida Bar v. Ray, 797 So. 2d 556, 558 n. 3
(Fla. 2001).
121
See Office of Disciplinary Counsel v. Price, 557 Pa. 166, 732 A. 2d 599 (Pa. 1999); Henderson v.
Department of Public Safety & Corrections, 901 F. 2d 1288 (5th Cir. 1990) (unsubstantiated hearsay).

truth of an allegation will not excuse reckless disregard for the truth.122 The right to free speech
under the federal and Florida Constitutions does not preclude the disciplining of a lawyer for
speech directed at the judiciary.123
It is important to underscore that Rule 4-8.2 does not immunize a judge from all criticism,
just criticism that is knowingly false or for which the offending attorney has no reasonable basis
for the criticism. Thus, the limits of Rule 4-8.2 are least restrictive when an attorney is engaged
in good faith professional advocacy in a legal proceeding requiring a critical assessment of a
judge or a judge’s decision.124
2. Motion to Disqualify a Judge.
One area where a multitude of Bar rule violations can occur is in the filing of a motion to
disqualify a trial judge.
In Florida, there are three separate expressions concerning the disqualification of trial
judges, which are set forth in: (1) Canon 3E of the Code of Judicial Conduct; (2) section 38.10,
Florida Statutes; and (3) Florida Rule of Judicial Administration 2.330.
The Code of Judicial Conduct sets forth four basic principles of how judges should
conduct themselves in carrying out their judicial duties. Canon 3E(1) states that “[a] judge
should disqualify himself or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned ....”125 This is consistent with the case law of the Florida Supreme
Court, which holds that a party seeking to disqualify a judge need only show a well grounded fear
that he or she will not receive a fair trial at the hands of the judge, and that it is not a question of
how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for
such feeling.126 The question of disqualification focuses on those matters from which a litigant
may reasonably question a judge’s impartiality rather than the judge’s perception of his or her
ability to act fairly and impartially.127
122
See Louisiana Bar Ass’n v. Karst, 428 So. 2d 406 (La. 1983).
123
Florida Bar v. Wasserman, 675 So. 2d 103, 105 (Fla. 1996); In re Shimek, 284 So. 2d 686 (Fla. 1973).
124
See In re Dixon, 994 N.E. 2d 1129, 1138 (Ind. 2013).
125
Fla. Code Jud. Conduct, Canon 3E(1).
126
State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-698 (Fla. 1938).
127
Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).

When a party believes he or she cannot obtain a fair and impartial trial before the
assigned judge, he or she must present the issue of disqualification to the court in accordance
with the process designed to resolve this issue. The requirements set forth in section 38.10,
Florida Statutes, and Florida Rule of Judicial Administration 2.330 were established to ensure
public confidence in the integrity of the judicial system as well as to prevent the disqualification
process from being abused for the purposes of judge-shopping, delay, or some other reason not
related to providing for the fairness and impartiality of the proceeding. The same requirements
are contained in each of these two processes. First, there must be a verified statement of the
specific facts which indicate a bias or prejudice requiring disqualification. Second, the
application must be timely made. Third, the judge with respect to whom the motion is made may
only determine whether the motion is legally sufficient and is not allowed to pass on the truth of
the allegation. Rule 2.330 requires that the motion be sworn to by the party signing the motion
under oath or by separate affidavit, and both Section 38.10 and Rule 2.330 also require a separate
certificate of good faith signed by counsel for the party making the motion.128
Section 38.10 gives to litigants a substantive right to seek the disqualification of a trial
judge. Because, however, the actual process of the disqualification of a judge is procedural, Rule
3.220, rather than the statute, controls the disqualification process. In considering the sufficiency
of the allegations to meet the requirements of the procedural process, the technical requirements
of the contents of the motion need not be strictly complied but, rather, they will be deemed
sufficient if taken as a whole, the allegations are sufficient to warrant fear on the part of a party
that he or she will not receive a fair trial by the assigned judge.129
Florida Rule of Judicial Administration 2.330(3)(c) specifically requires that a motion to

disqualify a judge must: be in writing; allege specifically the facts and reasons upon which the
movant relies as the grounds for disqualification, and identify the precise date when the facts
constituting the grounds for the motion were discovered by the party of the part’s counsel; be
sworn to or affirmed by the party by signing the motion or by attaching a separate affidavit; and
include a separate certification by the attorney for the party, if any, that the motion and the
client’s statements are made in good faith.130 If authorized or required that a document be
verified by a person, the verification may be accomplished by the signing of a written declaration
in the form of the following statement: “I declare that I have read the foregoing [document] and
the facts stated in it are true to the best of my knowledge and belief.”131
128
§ 38.10, Fla. Stat.; Fla. R. Jud. Admin. 2.330(c). See also In re Amendments to the Florida Rules of
Judicial Administration—2020 Regular-Cycle Report, 310 So. 3d 374 (Fla. 2021).
129
See Livingston v. State, 441 So. 2d 1083, 1086-1087 (Fla. 1983).
130
Fla. R. Jud. Admin. 2.330(3)(c).
131
§ 92.525(1)(a) and (2), Fla. Stat.

Under Rule 2.330, the motion need only be sworn to by the party signing it.132 There is
no requirement that the party have personal knowledge of the facts alleged nor that the motion be
accompanied by sworn affidavits of persons with such knowledge.133 “Personal knowledge” is
knowledge gained through firsthand observation or experience, as distinguished from a belief
based on what someone else has said.134
The test of legal sufficiency of a motion for disqualification for prejudice or bias of the
judge is whether the facts alleged, which the court must accept as true, would place a reasonably
prudent person in fear of not receiving a fair and impartial trial.135 In evaluating motions to
disqualify, sufficiency of the substance is essentially an extension of sufficiency of the form.
This legal sufficiency is a pure question of law. Further, if the form of the motion is
sufficient—i.e., the motion is procedurally sufficient—it does not matter whether the substance
of the allegations are true.136
Disqualification statutes and rules are in derogation of the common law and should be
liberally interpreted, and any statute or rule regulating the disqualification of judges is for the
benefit of the litigant and should be so construed. Such statutes or rules proceed on the theory
that every litigant is entitled to the cold neutrality of a trial judge, and being so, they should be
read and interpreted to give the relief for which they were designed. The primary requirement is
to show that the litigant “fears” that he or she will not receive a fair trial in the court where the
cause is pending on account of the prejudice or bias of the judge. When the statute or rule is
limited to a showing of a “fear” of prejudice, it would be inconsistent with the purposes of the
rule or statute to require an affidavit to be made on the theory that the affiant knows the
statements therein to be true.137
If, however, the asserted facts in a motion to disqualify are untrue, then the laws
prohibiting perjury in judicial proceedings and rules regulating the conduct of attorneys can be
applied to control abuse.138 Where a motion to disqualify is signed by an attorney, who was fully
132
Fla. R. Jud. Admin. 2.330(c).
133
Barnett v. Barnett, 727 So. 2d 311, 312, n. 2 (Fla. 2d DCA 1999) (construing Florida Rule of Judicial
Administration 2.160(c), which is now Rule 2.330).
134
135
See Levine v. State, 650 So. 2d 666 (Fla. 4th DCA 1995).
136
Jiminez v. Ratine, 954 So. 2d 706, 708 (Fla. 2d DCA 2007).
137
See Hahn v. Frederick, 66 So. 2d 823, 825-826 (Fla. 1953) (Terrell, J., dissenting).
138
Layne v. Grossman, 430 So. 2d 525, 526 (Fla. 3d DCA 1983).

and properly sworn to before a person authorized to administer oaths (such as a notary public),
and contains the attorney’s verification of the truth of the statements made in the motion, any
false material statements contained therein may subject the attorney to the penalties of perjury by
false statement. This is so even if the phrase sworn to is “to the best of my knowledge and
belief.”139 “Legal sufficiency” of a motion to disqualify a judge does not immunize the attorney
who files such a motion from sanctions for violations of the Bar’s rules of professional conduct,
or from violations of the criminal law.
II. Duties and Responsibilities of Supervisory Lawyers.
The ethical atmosphere of a law firm can influence the conduct of all its members.140
Against this backdrop, there are three distinct expressions in the Rules Regulating The Florida
Bar that concern the duties and responsibilities of supervisory lawyers.141
A. Rule 4-5.1.
Pursuant to Rule 4-5.1, a partner in a law firm, and a lawyer who individually or together
with other lawyers possess comparable managerial authority in a law firm, are required to make
reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that
all lawyers therein conform to the Rules of Professional Conduct.142 The rule also provides that
any lawyer having direct supervisory authority over another lawyer is required to make
reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional
Conduct.143 The rule goes on to provide that a lawyer shall be responsible for another lawyer’s
violation of the Rules of Professional Conduct if:
1. The lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct
involved;144 or
139
See Florida Attorney General Advisory Opinion 95-40 (June 13, 1995). This would appear to be the
same where the words “to the best of my personal knowledge” are used.
140
See, e.g., Florida Bar v. Diaco, 2016 WL 374277 (Fla. 2016); Florida Bar v. Adams, 198 So. 3d 593
(Fla. 2016); U.S. v. Sadr, 2020 WL 3057755 (S.D.N.Y. 2020); U.S. v. Nejad, 487 F. Supp.3d 206 (S.D.N.Y. 2020)
(sanction of U.S. Attorney’s Office for widespread misconduct).
141
The duties and responsibilities of supervisory lawyers are implicated in a number of other rules, including
Rules 4-8.3 and 4-8.4.
142
143
144

2. The lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be avoided or mitigated but fails to
take reasonable remedial action.145
Rule 4-5.1 thereby imposes two types of duties: (1) preventative and (3) corrective.
Preventive duties impose slightly different requirements on partners and supervisory

lawyers. Rule 4-5.1(a) and (b) expressly require partners and supervisory lawyers to make
“reasonable efforts” to ensure compliance with the Rules of Professional Conduct. However,
what “reasonable efforts means for partners is a bit different than what it means for supervisory
lawyers. Rule 4-5.1(a) requires that a partner make reasonable efforts to ensure that the law firm
or organization has measures in place to effectuate compliance with the Rules of Professional
Conduct by all lawyers in the firm or organization. Rule 4-5.1(b), on the other hand, requires
that supervisory lawyers make reasonable efforts to ensure that the supervised lawyer complies
with the Rules of Professional Conduct.146
A corrective duty is imposed on partners and supervisory lawyers by Rule 4-5.1(c) when
an ethical violation is made known to the lawyer. If a subordinate lawyer violates the Rules of
Professional Conduct and a partner or supervisory lawyer knows of this misconduct “at a time
when its consequences can be avoided or mitigated but fails to take reasonable remedial action,”
the partner or supervisory is personally liable for the subordinate’s behavior. Liability depends
on the partner or supervisory lawyer’s discovery of the misconduct. Once the partner is on notice
of another attorney’s misconduct, Rule 4-5.1(c) imposes a clear duty to take remedial measures
to avoid or mitigate the consequences of that misbehavior. Failure to do so is itself a violation of
the Rules of Professional Conduct and subjects the partner or supervisory lawyer to disciplinary
sanctions.147
The knowledge requirement does not mean that a partner or supervisory lawyer can shield
himself or herself from liability simply because he or she does not know about the ethical
violation. In fact, a complete lack of knowledge can lead to a finding or poor supervision if the
subordinate lawyer’s violation is such that reasonable supervision would have discovered it. A
supervisory attorney may this be in violation of Rule 4-5.1(b) even though such conduct does not
145
146
See Sarah Theresa Eibling, “Duties and Responsibilities of Lawyers in Light of In re Myers: Are You
Aware?, 55 S.C. L. Rev. 599, 604-605 (2004).
147
See In re Anonymous Member of South Carolina Bar, 346 S.C. 177, 552 S.E. 2d 10 (S.C. 2001); Sarah
Theresa Eibling, “Duties and Responsibilities of Lawyers in Light of In re Myers: Are You Aware?, 55 S.C. L. Rev.
599, 607 (2004).

violate Rule 4-5.1(c). Conversely, satisfaction of the corrective duty may be dependent on the
success of the preventive duty: If there is an adequate supervisory system in place, notice of any
violations of the Rules of Professional Conduct will be recognized quickly enough to mitigate the
consequences.148
Lawyers in Florida do not have vicarious liability for the ethical violations of other
lawyers. The issue, rather, is whether the supervisory lawyer violated Rule 4-5.1 by failing to
satisfy the ethical responsibilities of a partner, manager, or supervising lawyer in relation to the
other supervised lawyer’s misconduct. If a lawyer fails to satisfy the supervisory requirements of
Rule 4-5.1 by actions or omissions, that lawyer violates the Rules of Professional Conduct and
can be sanctioned completely separate from any sanction issued for the underlying actions or
omissions of the supervised lawyer. The threshold for liability is low and can include the
supervisory lawyer having serious doubts about the veracity of representations made by a
supervised lawyer but failing to make any attempts to verify those representations.149 Rule 4-
5.1(c) liability is thus not vicarious liability because the obligation does not arise merely from the
relationship between lawyers. The supervisory lawyer’s ethical violation will be based on his or
her participation in the underlying misconduct or his or her failure to avoid or mitigate its
consequences.150
Rule 4-5.1 applies to all lawyers with managerial or supervisory authority in private,
commercial, and government entities, including the Office of the State Attorney, Office of
148
See In re Anonymous Member of South Carolina Bar, 346 S.C. 177, 552 S.E. 2d 10 (S.C. 2001); Sarah
Theresa Eibling, “Duties and Responsibilities of Lawyers in Light of In re Myers: Are You Aware?, 55 S.C. L. Rev.
599, 607-609 (2004).
149
See Matter of Hallock, 119 N.Y.S. 3d 573, 181 A.D. 2d 125 (Sup. Ct. App. Div., 2d Dept. N.Y. 2020).
150
See Florida Bar v. Nowacki, 697 So. 2d 828 (Fla. 1997) (failure to uphold supervisory obligations over
associate); Florida Bar v. Hollander, 607 So. 2d 412 (Fla. 1992) (partner responsible for ethical violation resulting
from directing associate in firm to mail termination notice that contained language in violation of Bar Rule 4-
1.5(A)); In re Myers, 355 S.C. 1, 584 S.E. 2d 357 (S.C. 2003) (private reprimand was warranted for solicitor’s
failure to properly supervise deputy solicitor to ensure that defense counsel be informed that police officers and
deputy solicitor eavesdropped on privileged conversation between criminal defendant and counsel); In re
Anonymous Member of South Carolina Bar, 346 S.C. 177, 552 S.E. 2d 10 (S.C. 2001) (supervisory lawyer can be
disciplined for failing to make reasonable efforts even if he or she did not know of supervised lawyer’s inappropriate
behavior; lawyer need not be the day-to-day supervisor of the lawyer committing the misconduct to create liability);
Matter of Hallock, 119 N.Y.S. 3d 573, 181 A.D. 2d 125 (Sup. Ct. App. Div., 2d Dept. N.Y. 2020); Matter of
Malerba, 119 N.Y.S. 3d 569, 182 A.D. 3d 91 (Sup. Ct. App. Div., 2d Dept. N.Y. 2020).

Statewide Prosecution, Office of the Attorney General, and the Office of the Public Defender.151
Similarly, the corporate entity does not shield the lawyer from discipline under this rule.152
B. Rule 4-5.2.
A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer
acted at the direction of another person.153 However, a subordinate lawyer does not violate the
Rules of Professional Conduct if that lawyer acts in accordance with a supervisory’s lawyer’s
reasonable resolution of an arguable question of professional duty.154
Although a lawyer is not relieved of responsibility for a violation by the fact that the
lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether the
lawyer had the knowledge required to render conduct a violation of the rules. If, for example, a
subordinate lawyer files a frivolous or fraudulent pleading at the direction of a supervisor, the
subordinate would not be guilty of a violation of the Rules of Professional Conduct unless the
subordinate knew of the document’s frivolous or fraudulent character.155
C. Rule 4-5.3.
A person who uses the title of paralegal, legal assistant, or other similar term when
offering or providing services to the public must work for or under the direction or supervision of
a lawyer or law firm.156 With respect to a nonlawyer employed or retained by or associated with
a lawyer or an authorized business entity as defined elsewhere in the Rules Regulating The
Florida Bar:
151
“Subdivision (a) applies to lawyers who have managerial authority over the professional work of a firm.
... This includes ... lawyers having comparable managerial authority a legal services organization or a law department
of a ... government agency.” R. Regulating Fla. Bar 4-5.1 comment. See also In re Myers, 355 S.C. 1, 11-12, 584
S.E. 2d 357, 362 (S.C. 2003) (“We agree with comments to RPC 5.1, which clearly state that RPC 5.1(a) applies to
government agencies, as well as law firms.”).
152
Krehling v. Baron, 900 F. Supp. 1574 (M.D. Fla. 1995), citing In re Florida Bar, 133 So. 2d 554, 556
(Fla. 1961) (“The corporate entity as a method of doing business will not be permitted to protect the unfaithful or the
unethical.”).
153
154
155
See R. Regulating Fla. Bar 4-5.2 comment.
156

1. A partner, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm, must make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that the person’s conduct is compatible
with the professional obligations of the lawyer;157
2. A lawyer having direct supervisory authority over the nonlawyer must make
reasonable efforts to ensure that the person’s conduct is compatible with the professional
obligations of the lawyer;158 and
3. A lawyer is responsible for conduct of such a person that would be a violation of the
Rules of Professional Conduct if engaged in by a lawyer if the lawyer:
a. Orders or, with the knowledge of the specific conduct, ratifies the conduct
involved;159 or
b. Is a partner or has comparable managerial authority in the law firm in which

the person is employed, or has direct supervisory authority over the person, and knows of the
conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.160
Although paralegals or legal assistants may perform the duties delegated to them by the
lawyer without the presence or active involvement of the lawyer, the lawyer must review and be
responsible for the work product of the paralegals or legal assistants.161
Rule 4-5.3(b)(1) requires lawyers with managerial authority within a law firm to make
reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that
nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way
compatible with the professional obligations of the lawyer. Subdivision (b)(2) applies to lawyers
who have supervisory authority over nonlawyers within or outside the firm. Subdivision (b)(3)
specifies the circumstances in which a lawyer is responsible for conduct of nonlawyers within or
157
R. Regulating Fla. Bar 4-5.3(b)(1).
158
R. Regulating Fla. Bar 4-5.3(b)(2).
159
R. Regulating Fla. Bar 4-5.3(b)(3)A.
160
R. Regulating Fla. Bar 4-5.3(b)(3)B.
161

outside the firm that would be a violation of the Rules of Professional Conduct if engaged in by a
lawyer.162
D. Prosecutors.
Because the responsibility to seek justice is one borne by each individual prosecutor, one
cannot turn a blind eye or a deaf ear to misconduct by another prosecutor that will or has the the
potential to interfere with that responsibility.163
Rule 4-3.8,164 which specifies special responsibilities of a prosecutor, makes clear that
prosecutors have supervisory obligations under Rules 4-5.1 and 4-5.3. The comment to Rule 4-
3.8 reads in part:
Florida has adopted the American Bar Association Standards of Criminal Justice
Relating to Prosecutorial Function. This is the product of prolonged and careful
deliberation by lawyers experienced in criminal prosecution and defense and
should be consulted for further guidance.165
In this context, American Bar Association Criminal Justice Standard 3-1.12 reads in its
entirety:
(a) The prosecutor’s office should adopt policies to address allegations of

professional misconduct, including violations of law by prosecutors. At a
minimum, such policies should require internal reporting or reasonably suspected
misconduct to supervisory staff within the office, and authorize supervisory staff
to quickly address the allegations. Investigations of allegations of professional
misconduct within the prosecutor’s office should be handled in an independent
and conflict-free manner.
(b) When a prosecutor reasonably believes that another person associated with the
prosecutor’s office intends or is about to engage in misconduct, the prosecutor
should attempt to dissuade the person. If such attempt fails or is not possible, and
162
R. Regulating Fla. Bar 4-5.3 comment. See also In re Myers, 355 S.C. 1, 584 S.E. 2d 357 (S.C. 2003)
(letter of caution was warranted for solicitor’s conduct in permitting a member of his jury selection team to contact a
member of the jury venire).
163
Standard 1-1.6 comment, National Prosecution Standards, National District Attorneys Association (3d
ed. 2009).
164
165

the prosecutor reasonably believes that misconduct is ongoing, will occur, or has
occurred, the prosecutor should promptly refer the matter to higher authority in
the prosecutor’s office including, if warranted by the seriousness of the matter, to
the chief prosecutor.
(c) If, despite the prosecutor’s efforts in accordance with sections (a) and (b)
above, the chief prosecutor permits, fails to address, or insists upon an action or
omission that is clearly a violation of law, the prosecutor should take further
remedial action, including revealing information necessary to address, remedy, or
prevent the violation to appropriate judicial, regulatory, or other government
officials not in the prosecutor’s office.166
The sentiments of the American Bar Association regarding the duty of prosecutors to
respond to misconduct are paralleled and reinforced by the National District Attorneys
Association National Prosecution Standard 1-1.6, which provides in its entirety:167
A prosecutor is obligated to respond to professional misconduct that has, will, or

has the potential to interfere with the proper administration of justice.
a. Where the prosecutor knows that another person associated with
the prosecutor’s office has engaged, or intends to engage in
professional misconduct that could interfere with the proper
administration of justice, the prosecutor should address the matter
in accordance with internal office procedures.
b. If the office lacks adequate internal procedures to address
allegations professional misconduct, a prosecutor who learns of the
misconduct may, in the first instance, request that the person desist
from engaging in the misconduct. If such a request is, or is likely
to be, futile or if the misconduct is of a sufficiently serious nature,
a prosecutor should report the misconduct to a higher authority
within the prosecutor’s office.
c. If, despite a prosecutor’s best efforts, no action is taken in
accordance with the prior procedures to remedy the misconduct, a
prosecutor should repoty the misconduct to appropriate officials
outside the prosecutor’s office (to the extent permitted by the law
and rules of ethical conduct in the state).
d. A prosecutor’s failure to report known misconduct may itself
constitute a violation of the prosecutor’s professional duties.
166
American Bar Association, Criminal Justice Standards: Prosecution Function (4th ed. 2017), Standard
3-1.12.
167
National District Attorneys Association, National Prosecution Standards (3d ed. 2009), Standard 1-1.6.

In a prosecutor’s office, managerial lawyers are the top prosecutors and all other
prosecutors with managerial or executive functions in the office. This group would include, for
example, the State Attorney or Statewide Prosecutor himself or herself, as well as executive staff,
bureau or unit heads, and similarly positioned others who, among other duties, make policies and
set procedures for the office as a whole or for individual units. As part of their functions, these
individuals may also be direct supervisors under Rules 4-5.1(b) and 4-5.3(b). In a prosecutor’s
office, a supervisor is a lawyer who, regardless of his or her position or title in the office
hierarchy, directly supervises the work of another prosecutor in a particular matter, proceeding,
inquiry, or other event or series of events involving a case. Further, a manager within the
meaning of subparagraph (a) can also be a supervisor within the meaning of subparagraph (b).
For example, a unit or bureau chief whose job description consists mainly or principally of
executive or managerial functions may also directly supervise individual prosecutors in any
proceeding, application, inquiry, investigation, trial, appeal, or other matter. When managers
function as direct supervisors, they have obligations under subparagraph (b) as well. Managerial
lawyers in a prosecutor’s office must make reasonable efforts to ensure compliance with the
Rules of Professional Conduct by all lawyers in the office, including other lawyers with
comparable managerial authority. Under Rule 4-5.1(b) a lawyer in a prosecutor’s office having
direct supervisory authority over another lawyer is required to make reasonable efforts to ensure
that the other lawyer conforms to the Rules of Professional Conduct. Under Rule 4-5.3(b) a
lawyer having direct supervisory authority over a nonlawyer is required to make reasonable
efforts to ensure that the person’s conduct is compatible with the professional obligations of the
lawyer.168
E. Public Defenders.
The American Bar Association’s “Ten Principles of a Public Defense Delivery System”
recognizes that supervision is one of the fundamental necessary to design a system that provides
effective, efficient, high quality, ethical, conflict-free legal representation for criminal defendants
who are unable to hire an attorney.169 The National Association for Public Defense, in its Policy
on Active Supervision of the Representation of Clients, maintains that active supervision is a key
method to ensure meaningful representation and compliance with national performance standards
168
See American Bar Association Formal Opinion 467 (September 8, 2014) 2-4; Va. Ethics Op. 1798 (2004)
(prosecutor who assigns to assistant caseload so large as to make competent and diligent representation impossible
violates Rule 5.1). See also American Bar Association, Criminal Justice Standards: Prosecution Function (4th ed.
2017), Standard 3-2.4; also Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984) (ABA
standards for criminal justice are guides to determining what is reasonable, but they are only guides).
169
American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Ten Principles of
a Public Defense Delivery System, American Bar Association (February 2002).

and ethical rules and that active supervision consistent with the American Bar Association’s
Model Rules is an ethical imperative for public defenders.170
Rules 4-8.4 and 4-5.1 through 4-5.3 apply to public defenders in the same manner they
apply to all lawyers. Managerial and supervisory lawyers, including the head of a public
defender’s office and those within such an office having intermediate managerial responsibilities,
must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules
of Professional Conduct.171 This requires that lawyers in a public defender office having direct
supervisory authority take reasonable steps to ensure that lawyers in the office they supervise are
acting diligently in regard to all legal matters entrusted to them, communicating appropriately
with the clients on whose cases they are working, and providing competent representation to their
clients. As an essential first step, the supervisor must monitor the workloads of subordinate
lawyers to ensure that the workload of each lawyer is appropriate. This involves consideration of
the type and complexity of cases being handled by each lawyer; the experience and ability of
each lawyer; the resources available to support him or her; and any representational
responsibilities assigned to the subordinate lawyers.172 This supervisory responsibility also
extends to nonlawyers and nonemployees who perform work for the public defender agency.173
170
National Association for Public Defense, NAPD Policy on Active Supervision of the Representation of
Clients (October 15, 2020) pp. 9-13..
171
See American Bar Association Formal Opinion 06-441 (May 13, 2006).
172
See American Bar Association Formal Opinion 06-441 (May 13, 2006) (supervisory lawyer responsible
for ensuring subordinate’s caseload is not so excessive that subordinate cannot provide competent and diligent
representation); S.C. Ethics Op. 04-12 (2004) (public defender’s supervisor has duty to take steps to ensure
subordinates do not carry excessive caseloads); see also Or. Ethics Op. 2007-178 (2007) (supervisory lawyer in
public defender office who knows subordinates have excessive caseloads must take remedial measures to alleviate
excess under state’s version of Model Rule 5.1(c)). See also American Bar Association, Criminal Justice Standards:
Defense Function (4th ed. 2017), Standards 4-1.8, 4-1.11; also Strickland v. Washington, 466 U.S. 668, 688, 104 S.
Ct. 2052, 2065 (1984) (ABA standards for criminal justice are guides to determining what is reasonable, but they are
only guides). With respect to the responsibilities of a supervising public defender, if the question whether a lawyer’s
workload is reasonably arguable, the supervisor of the lawyer has the authority to decide the question. In the final
analysis, however, each client is entitled to competent and diligent representation. If a supervisor knows that a
subordinate’s workload renders the lawyer unable to provide diligent and competent representation, and the
supervisor fails to take reasonable remedial action, under Rule 4-5.1(c) the supervisor himself or herself is
responsible for the subordinate’s violation of the Rules of Professional Conduct. See In re Edward S., 173 Cal. App.
4th 387, 92 Cal. Rptr. 3d 725 (Ct. App. Cal. 2009) n. 11.
173
See In re Anonymous, 929 N.E. 2d 778 (Ind. 2010) (private reprimand for lawyer assigned by State
Public Defender as an independent contractor who employed a legal assistant whose incarceration made it
impossible for the lawyer to ensure that the assistant’s conduct was compatible with the lawyer’s professional
obligations to the lawyer’s client).

F. Reasonable Efforts.
The phrase “reasonable efforts” is not defined in either Rule 4-5.1(a)-(c) or Rule 4-
5.3(b)(2), but a sense of what it means can be garnered from the comments accompanying these
rules.
Pursuant to those comments, Rule 4-5.1(a) requires lawyers with managerial authority
within a firm or legal organization make reasonable efforts to establish internal policies and
procedures designed to provide reasonable assurance that all the lawyers in the firm or
organization will conform to the Rules of Professional Conduct. Such policies and procedures
include those designed to (1) detect and resolve conflicts of interest, (2) identify dates by which
actions must be taken in pending matters, (3) account for client funds and property, and (4)
ensure that inexperienced lawyers are properly supervised. Other measures that may be required
to fulfill the responsibility in Rule 4-5.1(a) can depend on the firm or organization’s structure and
the nature of its practice. In a small firm or organization of experienced lawyers, (1) informal
supervision and (2) periodic review of compliance with the required systems will ordinarily
suffice. In a large firm or organization, or in practice situations in which difficult ethical
problems frequently arise, more elaborate measures may be necessary. Firms and organizations
may also rely on continuing legal education in professional ethics.174
The comments also provide that partners and lawyers with comparable authority have at
least indirect responsibility for all work being done by the firm or organization, while a partner or
manager in charge of a particular matter ordinarily also has supervisory authority for other firm
or organization lawyers engaged in the matter. Appropriate remedial action by a partner or
managing lawyer would depend on the immediacy of that lawyer’s involvement and the
seriousness of the misconduct. A supervisor is required to intervene to prevent possible
consequences of misconduct if the supervisor knows that the misconduct occurred. If a
supervisor knows that a subordinate engaged in misrepresentation of a matter, the supervisor as
well as the subordinate has a duty to correct the resulting misapprehension.175
As the comments make clear, although a lawyer is not relieved of the responsibility for a
violation of the Rules of Professional Conduct by the fact that the lawyer acted at the direction of
a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge
required to render conduct a violation of the rules. If, for example, a subordinate filed a frivolous
pleading at the direction of a supervisor, the subordinate would not be guilty of a professional
violation unless the subordinate knew of the document’s frivolous character.176
174
175
176
R. Regulating Fla. Bar, Rule 4-5.2 comment.

The comments also make it clear that lawyers employing assistants in their practice,
including secretaries, investigators, law student interns, and paraprofessionals such as paralegals
and legal assistants, whether employees or independent contractors, must give such assistants
appropriate instructions and supervision concerning the ethical aspects of their employment,
particularly regarding the obligation not to disclose information relating the the representation of
the client. The measures employed in supervising nonlawyers should take account of the level of
their legal training and the fact that they are not subject to professional discipline. If an activity
requires the independent judgment and participation of the lawyer, it cannot be properly
delegated to a nonlawyer employee. Rule 4-5.1(b)(1). Requires lawyers with managerial
authority within a law firm or organization to make resasonable efforts to ensure that the firm or
organization has in effect measures giving reasonable assurance that nonlawyers in the firm or
organization and nonlawyers outside the firm or organization who work on firm or organization
matters act in a way compatible with the professional obligations of the lawyer. When using
services outside the firm or organization to render legal services to the client, a lawyer must
make reasonable efforts to ensure that the services are provided in a manner that is compatible
with the lawyer’s professional obligations.177
These comments are, however, merely the first, and not the last, word in determining the
meaning of “reasonable efforts.”
While most small law firms and organizations have informal supervision in place for day-
to-day business, informal supervision regarding conflicts of interest and confidentiality is
inadequate under the Rules of Professional Conduct. For example, Rule 4-1.6(e) requires that a
lawyer make “reasonable efforts” to prevent the inadvertent or unauthorized disclosure of, or
unauthorized access to, information relating to the representation of a client,178 which suggests
the need for formal policies and procedures in place to protect confidentiality. Conflicts of
interest may be difficult to properly assess, especially in non-litigation contexts, and may also
require even a small firm or organization to have formal policies in place to deal with them.179
Among the “more elaborate measures” many law firms and organizations have in place
include procedures by which junior lawyers can make confidential referrals of ethical problems
to a dedicated senior partner or special committee, which allows “subordinate” lawyers to follow
“a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” This
“ethics partner” or “ethics committee” serves as the firm or organization’s internal resource for
deciding ethics questions. The ethics partner or committee should also determine whether the
177
178
R. Regulating Fla. Bar 4-1.6(e).
179
Failure to avoid conflicts of interest can lead to disbarment. The Florida Bar, Florida’s Standards for
Imposing Lawyer Sanctions (March 5, 2021) Standard 4.3.

firm or organization should consult a Florida Bar ethics committee or an outside ethics expert for
assistance in responding to a specific ethics question or in developing policies regarding general
ethics issues. For this more elaborate measure to work properly, however, all lawyers in the firm
or organization should know who serves as the ethics partner or ethics committee membership
and how the program works. The firm should make it easy to contact the ethics partner or
committee, and assure members of the firm or organization that all communications will be kept
confidential unless it is necessary to reveal the communications in order to investigate or report
the situation. The firm or organization should take proactive steps to educate the lawyers in the
firm or organization about important developments in professional responsibility, and provide
protection against retaliation to those who contact the ethics partner or committee.180
“Periodic review of compliance with the required systems,” another of the more elaborate
measures, means a periodic audit of the firm or organization’s internal policies and procedures to
ensure that the lawyers in the firm or organization actually know, and are actually complying
with, those policies and procedures.181
A final more elaborate measure is creation and sustainment of the right ethical
atmosphere in the firm or organization, which is critical to ensuring that the lawyers comply with
the Rules of Professional Conduct. This includes an organizational rejection of sharp practices,
gamesmanship, and a win-at-all-costs mentality and a full embrace of professionalism. The firm
or organization does not need to develop a “zero tolerance” policy regarding violations of the
Rules of Professional Conduct, but should be alert for infractions and willing to confront lawyers
who have apparently violated the policies and procedures adopted by the firm or organization.182
Whenever it is necessary to admonish, restrict, terminate, or otherwize penalize a lawyer in the
firm or organization for conduct that violates the Rules of Professional Conduct, or comes
uncomfortably close to doing so, the law firm or organization should make a written record of the
action taken and the conduct that led to that action.183
G. Burden and Elements of Proof.
In disciplinary proceedings, The Florida Bar must prove by clear and convincing evidence
that an ethical violation occurred.184 The referee’s function is to weigh the evidence, determine
its sufficiency, and to make a factual finding. This factual finding is presumed correct and will
180
See Simon’s N.Y. Rules of Prof. Conduct § 5.1:3.
181
182
183
184
Florida Bar v. Burke, 578 So. 2d 1099 (Fla. 1991).

not be overturned unless the Supreme Court of Florida finds that it is clearly erroneous or lacking
in evidentiary support.185
In order to sanction a lawyer under Rule 4-5.1(b), The Florida Bar must prove by clear
and convincing evidence that: (1) the lawyer at issue had direct supervisory authority over the
offending lawyer; (2) the supervised lawyer failed to conform to the Rules of Professional
Conduct; and (3) the supervisory lawyer failed to make reasonable efforts to ensure the
supervised lawyer followed the Rules of Professional Conduct.186
In order to sanction a lawyer under Rule 4-5.1(c), the Bar must prove by clear and
convincing evidence that: (1) the lawyer at issue was a partner or had managerial or supervisory
authority over the offending lawyer; and (2) the lawyer at issue (a) ordered the specific conduct,
or with knowledge thereof ratified the conduct involved or (b) the lawyer at issue knew of the
conduct at a time when the consequences could be avoided or mitigated but failed to take
reasonable remedial action. Thus, any lawyer who orders or ratifies the conduct of another
lawyer can be sanctioned under Rule 4-5.1(c).
Rule 4-5.3(b) establishes the duty of direct supervision of non-lawyers, including

independent contractors and other non-employees, comparable to the duty established in Rule 4-
5.1 does as to lawyers. In order to sanction a lawyer under Rule 4-5.3, the Bar must prove by
clear and convincing evidence that: (1) the lawyer at issue was a partner or had managerial
authority over the offending non-lawyer and (2) the lawyer at issue (a) ordered the specific
conduct, or with knowledge thereof ratified the conduct involved or (b) the lawyer at issue knew
of the conduct at a time when the consequences could be avoided or mitigated but failed to take
reasonable remedial action. Thus, any lawyer who supervises, orders, or ratifies the conduct of a
nonlawyer can be sanctioned under Rule 4-5.3.187
185
Florida Bar v. Scott, 566 So. 2d 765 (Fla. 1990).
186
See In re Anonymous Member of South Carolina Bar, 346 S.C. 177, 182, 552 S.E. 2d 10, 12 (S.C. 2001)
187
See In re Nalick, 777 So. 2d 1220 (La. 2001) (lawyer bore ultimate responsibility for conversion of client
funds due to failure to supervise nonlawyer office staff); Attorney Grievance Comm’n v. Ficker, 349 Md. 13, 24, 706
A. 2d 1045 (Ct. App. Md. 1998) (lawyer was not responsible for employee’s misconduct under MLRPC 5.3(c)(2)
because, upon discovery of the misconduct the attorney took immediate remedial measures by stopping the
misconduct, docking the employee’s pay, and refunding money to clients harmed by the employee’s misconduct);
Attorney Grievance Comm’n v. McDowell, 439 Md. 26, 44, 93 A. 3d 711 (Ct. App. Md. 2014) (lawyer not
responsible under MLRPC 5.3(c)(2) because the attorney took reasonable remedial action once he learned of the
misconduct).

Appendix: Oath of Admission to The Florida Bar188
I do solemnly swear:
I will support the Constitution of the United States and the Constitution of the State of Florida;
I will maintain the respect due to courts of justice and judicial officers;
I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor
any defense except such as I believe to be honestly debatable under the law of the land;
I will employ for the purpose of maintaining the causes confided to me such means only as are
consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or
false statement of fact or law;
I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no
compensation in connection with their business except from them or with their knowledge and
approval;
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court,
but also in all written and oral communications;
I will abstain from all offensive personality and advance no fact prejudicial to the honor or
reputation of a party or witness, unless required by the justice of the cause with which I am
charged;
I will never reject, from any consideration personal to myself, the cause of the defenseless or
oppressed, or delay anyone’s cause for lucre or malice. So help me God.
188
Found at: https://www.floridabar.org/prof/presources/oath-of-admission-to-the-florida-bar/

A-1 Bench Memorandum (April 7, 2021)
Table of Authorities
Florida Constitution
Art. 5 § 15
Florida Statutes
Sec. 38.10, Fla. Stat.

Rules
R. Regulating Fla. Bar 1-10.1

Fla. R. Crim. P. 3.220
Fla. R. Jud. Admin. 2.330

Fla. R. Jud. Admin. 2.515
Fla. R. Workers Comp. P. 4.095

Tbl of Auth - 1 Bench Memorandum (April 7, 2021)
F.R.C.P. 11
M.R.P.C.1.0
M.R.P.C. 5.1
M.R.P.C. 5.2
M.R.P.C. 5.3
M.R.P.C. 8.3
Standards
Fla. Code Jud. Conduct, Canon 3

American Bar Association, Criminal Justice Standards: Defense Function (4th ed. 2017),
Standards 4-1.8, 4-1.11
American Bar Association, Criminal Justice Standards: Prosecution Function (4th ed. 2017),
Standards 3-1.12, 3-2.4
National District Attorneys Association, National Prosecution Standards (3d ed. 2009), Standard
1-1.6
The Florida Bar, Florida’s Standards for Imposing Lawyer Sanctions (March 5, 2021) Standard
4.3
Ethics Opinions
American Bar Association Formal Opinion 06-441 (May 13, 2006)

American Bar Association Formal Opinion 467 (September 8, 2014)
Connecticut Ethics Opinion 96-20, 1996 WL 785137 (Connecticut Bar Association Dec. 6, 1996)
District of Columbia Ethics Opinion 246 (October 18, 2004)
Florida Bar Ethics Opinion 94-5 (April 30, 1995)
New York City Ethics Opinion 1900-3 (May 4, 1990)
Ohio Ethics Opinion 2007-1 (February 9, 2007)
Oregon Ethics Opinion 2007-178 (2007)
South Carolina Ethics Advisory Opinion 16-04 (2016)
South Carolina Ethics Opinion 04-12 (2004)
Use of Threatened Disciplinary Complaint Against Opposing Counsel, American Bar
Association Formal Opinion 94-383 (July 5, 1994)
Virginia Ethics Opinion 1798 (2004)
Treatises
58 Am. Jur. 2d, Oath and Affirmation §§ 1, 16

Restatement (Third) of the Law Governing Lawyers § 5
Restatement (Second) of Contracts § 159

Roy Simon, Simon’s New York Rules of Professional Conduct (Thomson Reuters 2020-2021), §§
5.1:3, 5.1:4
Law Review Articles
Michael J. Burwick, “You Dirty Rat!! Model Rule 8.3 and Mandatory Reporting of Attorney
Misconduct,” 8 Geo. J. Legal Ethics 137 (Fall 1994)
Sarah Theresa Eibling, “Duties and Responsibilities of Lawyers in Light of In re Myers: Are you
Aware?” 55 S.C. L. Rev. 599 (2004)
Other References
American Bar Association, Final Report of the Committee on Code of Professional Ethics
(August 1908)
American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Ten
Principles of a Public Defense Delivery System, American Bar Association (February 2002)
Black’s L. Dict. (7th ed. 1990)
Florida Attorney General Advisory Opinion 95-40 (June 13, 1995)
National Association for Public Defense, NAPD Policy on Active Supervision of the
Representation of Clients (October 15, 2020)

Table of Cases
5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1977)

Abraham v. Super Buy Tires, Inc., 2007 WL 173846 (S.D. Cal. 2007)
Attorney Grievance Com’n v. Alison, 317 Md. 523, 565 A. 2d 660 (Ct. App. Md. 1989)
Attorney Grievance Com’n v. Ficker, 349 Md. 13, 706 A. 2d 1045 (Ct. App. Md. 1998)
Attorney Grievance Com’n v. McDowell, 439 Md. 26, 93 A. 3d 711 (Ct. App. Md. 2014)
Attorney U v. The Mississippi Bar, 678 So. 2d 963 (Miss. 1996)
Babbs v. Minton, 2004 WL 1367621 (Warren Co. Cir. Ct. Ky. 2004)
Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528 (Fla. 2d DCA 2010)
Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999)
Bulloch v. United States, 763 F. 2d 1115 (10th Cir. 1985)
Collins v. State, 465 So. 2d 1266 (Fla. 2d DCA 1985)
Demjanjuk v. Petrovsky, 10 F. 3d 338 (6th Cir. 1993)
Derzak v. County of Allegheny, Pa., 173 F.R.D. 400 (W.D. Pa. 1996)
Desimone v. Old Dominion Ins. Co., 740 So. 2d 1233 (Fla. 4th DCA 1999)
Florida Bar v. Adams, 198 So. 3d 593 (Fla. 2016)
Florida Bar re Amendments to Rules Regulating the Florida Bar, 624 So. 2d 720 (Fla. 1973)
Florida Bar v. Barley, 831 So. 2d 163 (Fla. 2002)
Florida Bar v. Brown, 905 So. 2d 76 (Fla. 2005)
Florida Bar v. Burke, 578 So. 2d 1099 (Fla. 1991)
Florida Bar v. Cueto, 894 So. 2d 152 (Fla. 2002)
Florida Bar v. Diaco, 2016 WL 374277 (Fla. 2016)
Florida Bar v. Fredericks, 731 So. 2d 1249 (Fla. 1999)
Florida Bar v. Gross, 610 So. 2d 442 (Fla. 1992)
Florida Bar v. Head, 27 So. 3d 1 (Fla. 2010)
Florida Bar v. Lawless, 640 So. 2d 1098 (Fla. 1994)
Florida Bar v. Hollander, 607 So. 2d 412 (Fla. 1992)
Florida Bar v. Machin, 635 So 2d 79 (Fla. 2000)
Florida Bar v. McCain, 330 So. 2d 712 (Fla. 1976)
Florida Bar v. Nowacki, 697 So. 2d 828 (Fla. 1997)
Florida Bar v. Patterson, 257 So. 3d 56 (Fla. 2018)
Florida Bar v. Ray, 797 So. 2d 556 (Fla. 2001)
Florida Bar v. Riggs, 944 So. 2d 167 (Fla. 2006)
Florida Bar v. Scott, 566 So. 2d 765 (Fla. 1990)
Florida Bar v. Wasserman, 675 So. 2d 103 (Fla. 1996)
Florida Bar v. Webster, 687 So. 2d 816 (Fla. 1994)
Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d 42 (Fla. 1st DCA 2000)
Gonzalez v. Quinco Electrical, Inc., 171 So. 3d 153 (Fla. 1st DCA 2015)
Hanovitz v. Santa Barbara Applied Research, Inc., 188 L.R.R.M. (BNA) 2337, 2010 WL
1337742 (W.D. Pa. 2010)
Hahn v. Frederick, 66 So. 2d 823 (Fla. 1953)

Tbl of Cases - 1 Bench Memorandum (April 7, 2021)
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250
(1944)
Henderson v. Department of Public Safety & Corrections, 901 F. 2d 1288 (5th Cir. 1990)
Humco, Inc. v. Noble, 31 S.W. 3d 916 (Ky. 2000)
In re Abbott, 925 A. 2d 482 (Del. 2007)
In re Air Safety International, L.C., 2004 WL 443990, 17 Fla. L. Weekly Fed. B 92 (S.D. Fla.
Bankr. 2004)
In re Amendments to the Florida Rules of Judicial Administration—2020 Regular-Cycle Report,
310 So. 3d 374 (Fla. 2021)
In re Anderson, 769 A. 2d 1282 (Vt. 2000)
In re Anonymous, 929 N.E. 2d 778 (Ind. 2010)
In re Anonymous Member of South Carolina Bar, 346 S.C. 177, 552 S.E. 2d 10 (S.C. 2001)
In re Beck, 109 So. 3d 897 (La. 2013)
In re Code for Resolving Professionalism Complaints, 116 So. 3d 280 (Fla. 2013)
In re Colvin, 300 Kan. 864, 336 P. 3d 823
In re Comfort, 159 P. 3d 1011 (Kan. 2007)
In re Davis, 974 A. 2d 170 (De. 2009)
In re Dixon, 994 N.E. 2d 1129 (Ind. 2013)
In re Edward S., 173 Cal. App. 4th 387, 92 Cal. Rptr. 3d 725 (Ct. App. Cal. 2009)
In re E.I. du Pont de Nemours and Co., 918 F. Supp. 1524 (M.D. Ga. 1995)
In re Florida Bar, 133 So. 2d 554 (Fla. 1961)
In re Florida Bd. Of Bar Examiners ex rel. M.A.R., 755 So. 2d 89 (Fla. 2000)
In re Himmel, 125 Ill. 531, 533 N.E. 2d 790 (Ill. 1989)
In re McCool, 172 So. 3d 1058 (La. 2015)
In re Myers, 355 S.C. 1, 584 S.E. 2d 357 (S.C. 2003)
In re Nalick, 777 So. 2d 1220 (La. 2001)
In re Pina, 602 B.R. 72 (S.D. Fla. 2019)
In re Riehlmann, 891 So. 2d 1239 (La. 2005)
In re Rosewold, 292 Kan. 136, 249 P. 3d 1199 (Kan. 2011)
In re Shimek, 284 So. 2d 686 (Fla. 1973)
In re Wilkins, 777 N.E. 2d 714 (Ind. 2002)
Iowa Supreme Ct. Atty. Disciplinary Bd. v. Kingery, 871 N.W. 2d 109 (Iowa 2015)
Iowa Supreme Ct. Bd. Of Prof’l Ethics & Conduct v. Steffes, 588 N.W. 2d 121 (Iowa 1999)
Jiminez v. Ratine, 954 So. 2d 706 (Fla. 2d DCA 2007)
Kenner v. C.I.R., 387 F. 2d 689 (7th Cir. 1968)
Krehling v. Baron, 900 F. Supp. 1574 (M.D. Fla. 1995)
Layne v. Grossman, 430 So. 2d 525 (Fla. 3d DCA 1983)
Levine v. State, 650 So. 2d 666 (Fla. 4th DCA 1995)
Lewis v. Wilcox, 2006 WL 8445891 (M.D. Ga. 2006)
Livingston v. State, 441 So. 2d 1083 (Fla. 1983)
Lockwood v. Bowles, 46 F.R.D. 625 (D.D.C. 1969)
Louisiana Bar Ass’n v. Karst, 428 So. 2d 406 (La. 1983)

Matter of Brooks, 324 S.C. 105, 477 S.E. 2d 98 (S.C. 1996)
Matter of Hallock, 119 N.Y.S. 3d 573, 181 A.D. 2d 125 (Sup. Ct. App. Div., 2d Dept. N.Y.
2020)
Matter of Hudson, 105 N.E. 3d 1089 (Ind. 2018)
Matter of Malerba, 119 N.Y.S. 3d 569, 182 A.D. 3d 91 (Sup. Ct. App. Div., 2d Dept. N.Y. 2020)
Matter of Rivers, 285 S.C. 492, 331 S.E. 2d 332 (S.C. 1984)
Midwest Motor Sports v. Arctic Sales, Inc., 347 F. 3d 693 (8th Cir. 2003)
Montgomery Bar Ass’n v. Hecht, 456 Pa. 13, 317 A. 2d 597 (Pa. 1974)
Office of Disciplinary Counsel v. Anonymous Attorney A, 552 Pa. 223, 714 A. 2d 402 (Pa. 1998)
Office of Disciplinary Counsel v. Grigsby, 493 Pa. 200, 425 A. 2d 730 (Pa. 1981)
Office of Disciplinary Counsel v. Price, 557 Pa. 166, 732 A. 2d 599 (Pa. 1999)
Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A. 2d 441 (Pa. 2000)
Office of Disciplinary Counsel v. Wrona, 589 Pa. 337, 908 A. 2d 1281 (Pa. 2006)
O’Neil v. Retirement Plan for Salaried Employees of RKO, 1992 WL 7839 (S.D.N.Y. 1992)
Santander Sec. LLC v. Gamache, Civ. No. 17-317, 2017 WL 1208066, 2017 BL 108486 (E.D.
Pa. April 3, 2017)
Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787 (Fla. 2d DCA 2005)
State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695 (Fla. 1938)
State ex rel. Florida Bar v. Calhoon, 102 So. 2d 604 (Fla. 1958)
State ex rel. Oklahoma Bar Ass’n v. Patmon, 939 P. 2d 1155 (Okla. 1997)
State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P. 2d 958 (Okla. 1988)
State v. Rutherford, 863 So. 2d 445 (Fla. 4th DCA 2004)
State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981)
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)
Tobkin v. Jarboe, 710 So. 2d 975 (Fla. 1998)
United States v. Cantor, 897 F. Supp. 110 (S.D.N.Y. 1995)
United States v. Gjielli, 717 F. 2d 968 (6th Cir. 1983)
United States v. Nejad, 487 F. Supp. 3d 206 (S.D.N.Y. 2020)
United States v. Sadr, 2020 WL 3057755 (S.D.N.Y. 2020)
United States v. Seltzer, 227 F. 3d 36 (2d Cir. 2000)
Wallace v. Skadden, Arps, Slate, Mwagher & Flom, 715 A. 2d 873 (D.C. Ct. App. 1998)


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____________________

MATTER—Lawyer Misconduct; Basic Duties and Responsibilities of Lawyers and Supervisory

This memorandum summarizes the basic professional duties and responsibilities

Lawyer Misconduct; Basic Duties and Responsibilities

A. Standards of Professional Conduct Generally.

Patterson, 257 So. 3d 56, 65-66 (Fla. 2018).

Lawyer Misconduct; Basic Duties and Responsibilities

B. Lawyer Signature and the Duty to Investigate.

Lawyer Misconduct; Basic Duties and Responsibilities

C. Oath and Verification.

False swearing in a judicial proceeding is an egregious species of dishonesty and is

To “verify” something means to prove it to be true, to confirm or establish the truth or

Lawyer Misconduct; Basic Duties and Responsibilities

A verified motion functions as an affidavit.26 A person who knowingly makes a false

Lawyer Misconduct; Basic Duties and Responsibilities

E. Duty of Candor Toward the Tribunal.

Lawyer Misconduct; Basic Duties and Responsibilities

It is misconduct for a lawyer to knowingly:

2. Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid

Lawyer Misconduct; Basic Duties and Responsibilities

Legal argument is a discussion seeking to determine the legal premises properly

2. Criminal or Fraudulent Conduct.

Ordinarily, an advocate has the limited responsibility of presenting 1 side of the

Lawyer Misconduct; Basic Duties and Responsibilities

4. Extent of Lawyer’s Duties.

F. Duty to Report Misconduct.

Lawyer Misconduct; Basic Duties and Responsibilities

Rule 4-8.3 does not require disclosure of information:

1. Otherwise protected by Rule 4-1.6 (Confidentiality of Information);53

2. Gained by a lawyer while serving as a mediator or mediation participant if the

3. Gained by a lawyer or judge while participating in an approved lawyers assistance

Lawyer Misconduct; Basic Duties and Responsibilities

In situations where a lawyer is required to report a violation, the lawyer’s failure to do so

The four-step process for determining whether mandatory reporting is required is as

Lawyer Misconduct; Basic Duties and Responsibilities

b. Client Confidences or Secrets.

c. Violation of a Disciplinary Rule.

Lawyer Misconduct; Basic Duties and Responsibilities

d. “Substantial Question” as to Honesty, Trustworthiness, or Fitness

Lawyer Misconduct; Basic Duties and Responsibilities

Lawyer Misconduct; Basic Duties and Responsibilities

4. Reporting Other Violations.

H. Violating or Attempting to Violate the Rules of Professional Conduct,

Lawyer Misconduct; Basic Duties and Responsibilities

Lawyer Misconduct; Basic Duties and Responsibilities

Dishonesty is deceitfulness as a character trait and includes behavior that deceives or

Fraud is a knowing misrepresentation or knowing concealment of a material fact made to

Lawyer Misconduct; Basic Duties and Responsibilities

The elements of fraud upon the court consist of conduct:

1. On the part of an officer of the court;

2. That is directed to the “judicial machinery” itself;

4. That is a positive averment or is concealment when one is under a duty to disclose;

5. That deceives the court.98

The intent requirement is satisfied by proof of actual intent to defraud, of willful

Lawyer Misconduct; Basic Duties and Responsibilities

Misrepresentation is the act or instance of making a false or misleading assertion about

Lawyer Misconduct; Basic Duties and Responsibilities

I. Misconduct Toward Judges.

1. Impugning the Qualification and Integrity of Judges.

A judge’s reputation deserves to be protected against being cavalierly tarnished by false

Lawyer Misconduct; Basic Duties and Responsibilities

Lawyer Misconduct; Basic Duties and Responsibilities

Lawyer Misconduct; Basic Duties and Responsibilities

2. Motion to Disqualify a Judge.