Regular Minutes - Page 29 November 7-8, 1991 professionalism program, and YLD is planning to hold it at all of Florida's law

schools. He also stated that YLD will be convening on December 12 to address the issue of post graduate internships. Finally, Mr. Palmer reported that the YLD is doing well financially, and because it has exceeded its $175,000 reserve cap, the division will be contributing $14,165 plus an additional $10,000 to the Bar's general fund. President Hill and fellow board members thanked the Young Lawyers Division for their contribution. 17. Report of Special Committee on Evaluation of Disciplinary Enforcement Chair Thomas Ervin reported that the Special Committee on Evaluation of Disciplinary Enforcement completed its initial report, and is submitting it to the Board for review and approval. Mr. Ervin stated the charge of the committee was to review and comment on the A.B.A. Commission on Evaluation of Disciplinary Enforcement ("McKay Commission") Report. Mr. Ervin reported that the committee will begin reviewing the concept of an ethics school and other possible diversionary programs. Mr. Ervin stated the McKay Commission Report contains twenty-two (22) specific recommendations for disciplinary enforcement, but that he would only be presenting for Board discussion the following recommendations of the report: 1) Recommendation #3.2 Recommends a central intake office for the receipt of all complaints about lawyers. The committee endorsed a central intake function, but only on a regional basis. 2) Recommendation #3.1(a) - 3.1(g) -- Recommends that the Court establish a system of regulation of the legal profession that consists of component agencies, including but not limited to lawyer discipline; a client protection fund; mandatory arbitration of fee disputes; voluntary arbitration of lawyer malpractice claims and other disputes; mediation; lawyer practice assistance; and lawyer substance abuse counseling. Of these component agencies, the committee did not endorse mandatory fee arbitration, voluntary arbitration of lawyer malpractice claims, or mediation. Mr. Ervin stated that the committee felt a client could not be mandated to participate in a fee arbitration program, and

Regular Minutes - Page 30 November 7-8, 1991 a voluntary arbitration system for legal malpractice claims could be created under Florida law. Additionally, these programs would create more expense and bureaucracy. 3) Recommendation #9.6 Recommended all jurisdictions should afford a right of review to complainants whose complaints are dismissed prior to a full hearing on the merits, consistent with the ABA MRLDE 11B(3) and 31. The committee felt that this recommendation would possibly create an intermediary appellate body, and that the Bar's system of grievance committees, referees, and board review was preferable. 4) Recommendation #10 -- Recommended procedures in lieu of discipline for matters in which a lawyer's actions constitute minor misconduct, minor incompetence, or minor neglect. The committee endorsed, in concept, the creation of a procedure to divert minor misconduct cases from the formal disciplinary machinery. The committee felt with the increase in complaints of minor misconduct by attorneys, a diversionary system should be established to handle such cases. 5) Recommendation #6 -- Recommended that the Court alone should appoint and for cause remove disciplinary counsel and should provide sufficient authority for prosecutorial independence and discretion. The committee endorsed an amendment to this recommendation which would allow the Court to appoint a designee (The Florida Bar) to exercise powers provided in 6.1(a)-(f). 6) Recommendation #7 A fully public discipline process

The committee did not endorse this recommendation in that the Bar has just implemented a new disciplinary system that permits acknowledgement of an initial investigation, but prohibits public access to records until the investigation has been completed. The committee felt that the Bar's system needs more time to determine its feasibility. 7) Recommendation #5 -- Independence of disciplinary officials The committee did not endorse sections 5.1-5.3 as written, and felt that disciplinary and staff counsel should continue to have authority to bring to the board for review actions of the grievance committees. However, it did endorse the authority of staff counsel to appeal a decision of a referee, even if the Board disagreed.

Regular Minutes - Page 31 November 7-8, 1991 8) Recommendation #17 -- Recommended random audit of trust accounts. The committee did not endorse this recommendation, and felt that a random system would not locate the violators. Additionally, the committee felt a random system would find some technical violations but at a great expense, and that the money could be better utilized in educating the profession on how to properly operate accounts. 9) Recommendation #18 -- Recommended that the burden of proof in fee disputes be on the attorney if there is no written fee agreement. The committee felt that this recommendation was primarily a civil burden of proof, and thus, did not endorse it. Mr. Ervin moved, which was seconded, the adoption of the report of the Special Committee on Evaluation of Disciplinary Enforcement as an official response to the McKay Commission recommendations for submission to the American Bar Association. It was requested that recommendation #6, Authority to Appeal, and Recommendation #5.3, Independence of Disciplinary officials, be removed from the motion for discussion. After consideration, the proposed report, excluding recommendations #6 and #5.3, were approved. John DeVault stated his opposition to recommendation #6.1(d) in allowing a disciplinary counsel to take an appeal of the referee's recommendation when there is an opposing position by the Board. He stated that this would create a situation where bar counsel and the Board taking adverse positions. Staff Counsel John Berry responded that this recommendation would allow more judicial control, and would give the Court more responsibility over discipline enforcement, which the McKay Commission favors. Mr. Berry further stated that it would balance the judicial and legislative functions in these matters. The primary concern of some board members was that the recommendation authorizing an appeal may potentially position the Board adversely to Bar counsel. After consideration and upon motion, recommendation #6.1(d) and #5.3 as endorsed by the committee, failed. Frederick Bosch stated his opposition to not endorsing recommendation #6.2 which prohibits certain ex parte communication. He stated that ex parte communication would

Regular Minutes - Page 32 November 7-8, 1991 allow more politically based decisions on disciplinary matters. Mr. Berry stated that the committee did not endorse this recommendation because discipline counsel are counsel to the board and grievance committees and not prosecutors. Edward Blumberg inquired as to why respondent's counsel is not permitted to sit in on deliberations of committees and the board but bar counsel is. Mr. Ervin advised that the Board is not adjudicative but prosecutorial in function. Mr. Blumberg suggested a study be conducted on implementing a procedure wherein a respondent or respondent's counsel could provide a response to bar counsel's summary of the grievance case. Alternatively, Mr. Blumberg suggested the possibility of allowing the respondent or respondent's counsel to be present during the Disciplinary Review Committee meeting. Mr. Bosch made a motion, which was seconded, to disapprove the special committee's recommendation and endorse recommendation #6.2 of the McKay Commission report. Alan Dimond stated that the Bar is simply an arm of the prosecutor, and due process comes before the Florida Supreme Court of Florida. After consideration, the motion to disapprove the committee's recommendation on #6.2, failed. President Hill stated that Mr. Blumberg's suggestion to implement a procedure to expand the participation of a respondent's counsel in the disciplinary meetings will be referred to the Disciplinary Procedure Committee for further consideration. The amended report of the Bar's Special Committee will be forwarded to the McKay Commission and the ABA for their consideration. 18. Reconsideration of Board's Resolution on Rule 46-l(d)(l) of U.S. Court of Appeals, llth Circuit The Board, at its September meeting, approved reconsideration of its resolution in opposition to Rule 46-l(d)(l) of the U.S. Court of Appeals, llth Circuit which was passed at its July meeting. George Tragos, President of the Florida Association of Criminal Defense Lawyers, and a member of the Federal Court Practice Committee and Criminal Law Section, appeared on behalf of those respective entities to present their opposition to Rule 46-l(d)(l) requiring trial counsel to