The Florida Bar RFA 17-4289 Steven Eleazer Lake

VIA UPS No.
1Z64589FP293277825
Email: jharkness@flabar.org
October 12, 2016
John F. Harkness, Jr., Executive Director

The Florida Bar, 651 East Jefferson Street
Tallahassee, FL 32399-2300
Dear Mr. Harkness:
RE: Letter October 21, 2016 of Bar Counsel Heidi E. Brewer, Attorney Consumer
Assistance Program, Request for Assistance (RFA) No. 17-4289 Re: Steven Eleazer Lake
Dear Mr. Harkness:
Enclosed is the letter of Bar Counsel Heidi Brewer that I received through the U.S. mail
yesterday wrongly closing/dismissing my complaint against attorney Steven Lake.
First, Ms. Brewer failed to know, understand, or follow Rule 3-4.3, Misconduct and Minor
Misconduct, relative to the letter she provided closing my meritorious complaint against Steven
Lake to The Florida Bar. This is an ongoing problem with Brewer, and other bar counsel, and
other meritorious complaints I have made to The Florida Bar. I was drafting a letter to you about
this matter with Rule 3-4.3 and Brewer, Teresa Goodson and their supervisor Shanell Schuyler
(Rule 4-5.1); and Patricia Savitz and her supervisor Jan Wichrowski (Rule 4-5.1). But I felt it
necessary to provide this interim letter to you and various interested parties.
Second, Brewer failed to address the specific rule violations I alleged against Mr. Lake:
Steven Lake violated Rule 4-8.4 Misconduct
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation...
(d) engage in conduct in connection with the practice of law that is prejudicial to the
administration of justice...on account of race
In addition: Rule 4-4.1 Truthfulness In Statements to Others
Brewer wrote, Your allegation that Mr. Lake failed to provide you with records in violation of
Florida's public records law involves issues to be decided by a court of law. The Florida Bar is
not the correct forum in which to have those issues adjudicated and resolution of that claim must
therefore be left to the civil court system.
Brewers response is discredited by Lakes violations of Rule 4-8.4 Misconduct cited above, and
Rule 3-4.3, Misconduct and Minor Misconduct, because I complained to The Florida Bar
about Lakes violation of Rule 4-8.4 Misconduct cited above, not the nonsense Brewer wrote.
Rule 3-4.3, Misconduct and Minor Misconduct states:
The standards of professional conduct to be observed by members of the bar are not
limited to the observance of rules and avoidance of prohibited acts, and the enumeration
The Florida Bar

Complaint - Steven Eleazer Lake
October 12, 2016

Page - 2
herein of certain categories of misconduct as constituting grounds for discipline shall not
be deemed to be all-inclusive nor shall the failure to specify any particular act of
misconduct be construed as tolerance thereof. The commission by a lawyer of any act
that is unlawful or contrary to honesty and justice, whether the act is committed in the
course of the attorney's relations as an attorney or otherwise, whether committed within
or outside the state of Florida, and whether or not the act is a felony or misdemeanor,
may constitute a cause for discipline.
See for example, The Florida Bar v. Donald Joseph Thomas, Supreme Court Case No.
SC10-944, and The Florida Bar File No. 2010-51,555(15G).
That means my complaint against Mr. Lake for violation of Rule 4-8.4 Misconduct stands on its
own, and is not dependent on records law or the other nonsense Brewer wrote. I request you
reassign my complaint against Mr. Lake to a competent bar counsel.
Brewer also wrote:
Additional information is necessary concerning your allegation that Mr. Lake engaged
in "white supremacy racial discrimination and obstruction of justice against an AfricanAmerican female student ...." Please provide a description of the specific conduct you
assert Mr. Lake engaged in which forms the basis of your allegation that he acted in a
racially discriminatory manner. If the basis of this allegation is your assertion that he
failed to provide records as required under the law, that issue as stated above, must be
resolved by a court of law. In the event a court of law enters an order which supports
your assertion in that regard, you may resubmit your complaint along with a copy of such
an order for consideration.
On Monday October 10, 2016, Kevin Christian of Marion County Public Schools provided a
hodgepodge of 30 pages of records, but not the record I sought: A copy of the investigation
mentioned in the attached Ocala Star-Banner news article. I read but have not studied the
records Christian provided, but my initial view shows the documents are a damming indictment
of Mr. Lake, West Port Principal Jayne Ellspermann, Kevin Christian, and perhaps others.
As of today, I do not show Christian and/or Lake claim any exemption under F.S. 119.0713
Local government agency exemptions from inspection or copying of public records. So its time
to provide the records I requested: A copy of the investigation mentioned in the attached
Ocala Star-Banner news article.
The Joint Statement July 2015 of the ABA and the NAACP Legal Defense and Educational Fund
addressing the troubling and destabilizing loss of public confidence in the American criminal
justice system states in part: While we believe that the overwhelming percentage of law
enforcement officers, prosecutors and judges are not racist, explicit bias remains a real factor in
our country and criminal justice system and implicit or unconscious bias affects even those
who may believe themselves to be fair. I disagree. In Florida, one should expect racial bias from
every LE officer, every prosecutor, every lawyer and every judge: It is a refutable presumption.
The Florida Bar

Complaint - Steven Eleazer Lake
October 12, 2016

Page - 3
That includes Heidi Elaine Brewer, Florida Bar ID #46965, age 54, 211 Grace St., Tallahassee,
FL, a white, non hispanic female registered to vote in Leon County, Florida.
https://voterrecords.com/voter/13635790/heidi-brewer
Brewer is also a graduate of Mercer University - Walter F. George School of Law, Macon, GA.
Henceforth I expect The Florida Bar, and its counsel, to know, understand, and follow Rule 34.3, Misconduct and Minor Misconduct, relative to complaints I may submit.
Please advise the undersigned when I can expect RFA No. 17-4289 Steven Eleazer Lake to be
reassigned to competent bar counsel for prosecution. Thank you.
Sincerely,
Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Telephone: 352-854-7807
Email: neilgillespie@mfi.net
Enclosures
Letter October 21, 2016 of Bar Counsel Heidi E. Brewer
Rule 3-4.3, Misconduct and Minor Misconduct
The Florida Bar v. Donald Joseph Thomas
ABA addresses 'destabilizing loss of public confidence' in criminal justice in joint statement
Heidi Elaine Brewer (Bar# 46965)
Creed Of Professionalism
Professionalism Expectations - The Florida Bar Standing Committee on Professionalism
OATH OF ADMISSION TO THE FLORIDA BAR SC11-1702, with ABOTA Code
Candor Toward The Tribunal Informational Packet Updated Aug-25-2016
Rule 4-4.1 Truthfulness In Statements to Others
Rule 4-5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
The Florida Bar

651 East Jefferson Street
850/561-5600
www.FLORIDABAR.org
John F. Harkness, Jr.

Executive Director
October 6, 2016
Mr. Neil J. Gillespie
8092 S.W. 115th Loop
Ocala, FL 34481
Re: Steven Eleazer Lake; RFA No. 17-4289
Dear Mr. Gillespie:
Your complaint and acconlpanying material regarding the above referenced attorney have been
referred to me for review. You state:
"[t]his is a complaint against Steven Eleazer Lake for white supremacy racial
discrimination, and obstruction ofjustice, against an African-American female
student of West Port High School, who was apparently punished for being a
victim of a hate crime by three white students, and concealing records thereto,
specifically a report of the incident that I requested under 119 et seq."
Your allegation that Mr. Lake failed to provide you with records in violation of Florida's public
records law involves issues to be decided by a COlIrt of law. The Florida Bar is not the correct
forum in which to have those issues adjudicated and resolution of that claim must therefore be
left to the civil court system.
Additional information is necessary concerning your allegation that Mr. Lake engaged in "white
supremacy racial discrimination and obstruction ofjustice against an African-American female
student ...." Please provide a description of the specific conduct you assert Mr. Lake engaged
in which forms the basis of your allegation that he acted in a racially discriminatory manner. If
the basis of this allegation is your assertion that he failed to provide records as required under the
law, that issue as stated above, must be resolved by a court of law. In the event a court of law
enters an order which supports your assertion in that regard, you may resubmit your complaint
along with a copy of such an order for consideration.
In light of the foregoing, our file in this matter has been closed. Pursuant to the Bar's records

October 6, 2013
Page 2
retention schedule, the computer record and file of this matter will be disposed of one year from
the date of closure.
Sincerely,
~'cf,' e~
Heidi E. Brewer, Bar Counsel
Attorney Consumer Assistance Program
ACAP Hotline 866-352-0707
cc: Mr. Steven Eleazer Lake
~;
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The Florida Bar

651 East Jefferson Street
850/561-5600
www.FLORIDABAR.org
John F. Harkness, Jr.

Executive Director
October 6, 2016
Ocala, FL 34481
Re: Steven Eleazer Lake; RFA No. 17-4289
Dear Mr. Gillespie:
Your complaint and acconlpanying material regarding the above referenced attorney have been
referred to me for review. You state:
"[t]his is a complaint against Steven Eleazer Lake for white supremacy racial
discrimination, and obstruction ofjustice, against an African-American female
student of West Port High School, who was apparently punished for being a
victim of a hate crime by three white students, and concealing records thereto,
specifically a report of the incident that I requested under 119 et seq."
Your allegation that Mr. Lake failed to provide you with records in violation of Florida's public
records law involves issues to be decided by a COlIrt of law. The Florida Bar is not the correct
forum in which to have those issues adjudicated and resolution of that claim must therefore be
left to the civil court system.
Additional information is necessary concerning your allegation that Mr. Lake engaged in "white
supremacy racial discrimination and obstruction ofjustice against an African-American female
student ...." Please provide a description of the specific conduct you assert Mr. Lake engaged
in which forms the basis of your allegation that he acted in a racially discriminatory manner. If
the basis of this allegation is your assertion that he failed to provide records as required under the
law, that issue as stated above, must be resolved by a court of law. In the event a court of law
enters an order which supports your assertion in that regard, you may resubmit your complaint
along with a copy of such an order for consideration.
In light of the foregoing, our file in this matter has been closed. Pursuant to the Bar's records

October 6, 2013
Page 2
retention schedule, the computer record and file of this matter will be disposed of one year from
the date of closure.
Sincerely,
~'cf,' e~
Heidi E. Brewer, Bar Counsel
Attorney Consumer Assistance Program
ACAP Hotline 866-352-0707
cc: Mr. Steven Eleazer Lake
~;
~G'i<lS'PUI/~
~fli!:>4-+"~ THE FLORIDA

'"
...
BAR
ST-Cl..ASS MA
Hasler
10/06/2016
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lmJil 1',.iMAA $OO.46~
"' 651 EAST JEFFERSON STREET

... ~~~ TALLAHASSEE, FL 32399-2300
Q'+'
"'(1 PRO~SS'
~
..."':
ZIP 32399
011011637246
Visit our website: www.FloridaBar.org

Ocala, FL 34481
:::i:::j.C~Ei i $3SE:7
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http://www.floridabar.org/divexe/rrtfb.nsf/FV/8309AD1094F1E10B85256BC00065CB38
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RULE 3-4.3 MISCONDUCT AND MINOR MISCONDUCT

3 RULES OF DISCIPLINE
3-4 STANDARDS OF CONDUCT
RULE 3-4.3 MISCONDUCT AND MINOR MISCONDUCT

The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and
avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline
shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance
thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in
the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the state of Florida, and
whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.
[Revised: 01/01/1993]
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IN THE SUPREME COURT OF FLORIDA

(Before n Referee)
Supreme Court Case
Nn,SC10-944
THE FLORIDA BAR,

Complainant,
The Florida Bar File

No. 2010-51,555(150)
v.
DONALD JOSEPH THOMAS,
Respondent,
REPORT OF REFEREE
L
SUMMARY OF PROCEEDINGS
The Florida Bar filed its formal Complaint in this cause on May 21, 2010.
Thereafter, the Chief Judge of the Seventeenth Judicial Circuit appointed the
undersigned, 10 serve as referee. The parties have presented to me a Guilty Plea for
Consent Judgment, which has hecn approved by The Florida Bar Board of
Governors 1 designated reviewer After due deliberation, I have determined to
thai respondent's Guilty Pica for Consent Judgment he approved, for
Ihe reasons set forth heroin. The pleadings and all other papers filed in this cause,
which are forwarded to the Supreme Court of Florida with this report, constitute
Ihc entire record.
Throughout I he course of these proceedings, respondent was represented hy

Joseph Arnold Corsmeicr; The Honda Bar was represented hy Ronna Friedman
Young.
**
FINDINGS OF FACT:
A.
Jurisdictional ..Statement: Respondent is, and at all times mentioned
during this investigation was, -a member of The Florida Bar, and subject to the
jurisdiction and Disciplinary Rules of the Supreme Court of Florida.
K-
N <J rraiivc Summary:
Ret ween 9,007 and 2009, Respondent settled 14 separate personal injury
cases wherein he had entered into agreements with Florida licensed attorney
Shane Stafford to pay $44,804.10 in referral fees lo attorney Stafford. Respondent
failed to timely pay the referral ices lo attorney Stafford,
Respondent paid
$22,000 00 to attorney Stafford on or about May 4, 2010 in exchange for attorney

Siiifford's full and final release of his rclcrraJ fee claims related lo those 14 cases.
The Bar conducted an audit of Respondent's IOTA trust account for the
period of January 1, 2007 through November 30, 2009, which resulted in findings
that Respondent failed to maintain certain required trust accounting records and
Imtcd to follow required trust accounting procedures under the Rules Regulating
Trust Accounts. The audit further revealed that in each of the 14 separate personal
injury cases, Respondent Tailed to hold Stafford's funds in trust.. Respondent was
not charged with misappropriating client funds.
Ill-
RECOMMENDATION AS TO GUILT
A.
By the conduct set forth above, respondent violated R. Regulating Fla.
Bar 3-4.3 [The commission by a lawyer of any act that is unlawful or contrary to
honesty and justice, whether the act is committed in the course of the attorney's
relations as an attorney or otherwise, whether committed within or outside the state
of Florida, and whether or not the act is a felony or misdemeanor, may constitute a
cause for discipline.!; 4-8,4(c) | A lawyer shall not; (c) engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation...!; 4-1,15 |A lawyer shall comply
with the Rules Regulating Trust. Accounts.]; 5~1.1(a)(l) [A lawyer shall hold in
I nisi, separate from the lawyer's own property, funds and property of clients or
third persons that, are in a lawyer's possession in connection with a representation.
All funds, including advances for fees, costs, and expenses, shall be kept in a
separate hank or savings and loan association account maintained in the state
where (he lawyer's office is situated or elsewhere with the consent of the client, or
third person and clearly labeled and designated as a trust account A lawyer may
maintain funds belonging to the lawyer in the trust account in an amount no more
than is reasonably sufficient to pay hank charges related to the trust account.];
$ 1J(b) (Money or other property entrusted to an attorney for a specific purpose,
inr.luding advances for fees, costs, and expenses, is held in trust and must he
applied only to that purpose. Money and other property of clients coming into the
hands of an attorney are not subject to counterclaim or setoff for attorney's fees,
and a refusal to account for and deliver over such property upon demand shall be
deemed a conversion.]; 5-1-1 (c) [Except as stated in this rule or otherwise
permitted by law or by agreement with the client, a lawyer shall promptly deliver
to the client or third person any funds or oiher property that the client or third
person is entitled lo receive..."|; 5-1 Jt(b)(2) |Thc following are the minimum trust
account records that, shall be maintained: Original or duplicate deposit slips and, in
the case or currency or coin, an additional cash receipts book, clearly identifying;
(A.) the date and source of all trust funds received; and (B) the client or matter for
which the funds were received.]; 5-I.2(c)(l)(A) |The lawyer shall cause to he
made monthly: (A) reconciliations of all trust bank or savings and loan association
accounts, disclosing the balance per bank, deposits in transit, outstanding checks
identified by date and check number, and any other items necessary to reconcile
the balance per bank with the balance per the checkbook and the cash receipts and
disbursements journal.]; and 5-1.2(c)(l)(B) [The lawyer shall cause to be made
monthly; (B) a comparison between the total of the reconciled balances of all trust
accounts find the total of I he trust ledger cards or pages, together with specific
descriptions of any differences between the 2 totals and reasons therefor.].
KV.
RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE

APPLlEPs
I recommend thai respondent he suspended for a period of 90 days, nunc pro
tune, June 20, 9010 and be required to pay The l< lorida Bar's costs.
I am satisfied thai the recommended discipline is necessary and appropriate
to meet ihe three purposes of lawyer discipline, (1) the judgment must he fair to
society, both in icrms of protecting the public from unethical conduct and ai the
same time not denying the public ihc services of a qualified lawyer as a result of
undue harshness in imposing penally, (2) the judgment must be fair to the
Respondent, bnng sufficient to punish a breach of ethics and at the same time
encourage reformation and rehabilitation, and (3) the judgment must be severe
enough to detoi others who might be prone or tempted to become involved in like
violations. The Florida Bar v. RarreH, 897 So.2d 1269, 1275 -1276 (Fla. 2005).
V
PERSONAL HISTORY, PAST DISCIPLINARY RECORD AND

AGGRAVATING AND MITIGATING FACTORS
Prior to recommending discipline, and pursuant to R Regulating Fla. Bar
* 7.6(k)(]), 1 considered the following*

A.
Personal History of Respondent:

Age: 45
ale admitted to The Florida Bar January 5, 1990
ft-
AggravatingJiactOTs:
9.9,2(1)
Respondent has substantial experience in the practice of

law, having been admitted to practice on January 5, 1990.
C.
MitoUng_Factors:
9.32(a)
Absence of a disciplinary record - respondent has been a

member of The Florida Bar since January 5, 1990 and
has no prior discipline but for the conduct which is at
issue in this proceeding and which led to the Order of
Emergency Suspension.
9.32.(o)
Respondent had personal problems and issues at the time

this conduct occurred,
9.32(1)
Remorse - Respondent is remorseful for his conduct in

this matter and freely accepts full responsibility for his
actions.
Vl
STATEMENT OF COSTS AND MANNER IN WHICH COSTS

SHOULD BE TAXED:
I find that The Florida Bar has incurred reasonable costs in the matter, that
respondent (in I he Guilty Plea for Consent Judgment) has agreed to pay the
following reasonable costs, and that same should be assessed against the
respondent, as follows:
A.
Grievance Committee Level Costs:

1.
Court Reporter Costs
2.
Bar Counsel Travel Costs
3.
Copy Costs
4.
Mailing Costs
$
$
$
$
-0- 0~0-0-
Referee Level Costs:

1.
( !ourt Reporter Costs
2.
Deposition Transcripts
3.
Bar Counsel 1 ravel Costs
4.
Mailing Costs
$
$
$
$
375.00
-028,00
10.80
Administrative Costs
1 ,250.00
D.
Miscellaneous Costs:
1.
Investigator Costs
2.
City National Bank Records
3.
Copy Costs
4.
Auditor Costs
$
$
$
$
1 73 .00
1 73.25
-05,190.25
7.200.30
H.
TOTAL ITEMIZED COSTS:
I recommend that these costs he charged to respondent, with statutory

interest until paid in full. Should respondent fail to pay these costs within 30 days
of the final Court Order in this case, respondent should he deemed delinquent and
ineligible !o practice law, pursuant io R. Regulating Fla. Bar 1-3.6 (unless
otherwise deferred by the Board of Governors of The Florida Bar).
Dated this
Hovida.
^^ day of
*V\ _
, 2010 in Broward County,
STCVEN BRIAN FERKN, REFEREE
CERTIFICATE OF SERVICE
I MliREBY CERTIFY that the original of the foregoing Report of Referee
has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme
Court of Florida, 500 South DuvnJ Street, Tallahassee, Florida 32399-1927,
and furnished lo THE HONORABLE THOMAS D. HALL by e-mail at
.9 ^.I.Qft'XilQOurts.oi^; and that copies were mailed by regular U.S. mail to the
following: STAFF COUNSEL, The Florida Bar,'651 East Jefferson Street,
TaJlahasseft, Florida 32399-2300; RONNA FRIEDMAN YOUNG, Bar Counsel,
The Florida Bar, Lake Shore Plaza If, 1300 Concord Terrace, Suite 130, Sunrise,
Florida 33321; and JOSEPH ARNOLD CORSMEIER. Counsel for Respondent,
2454 North McMullen Booth Road, Suite 431, Clearwater, Florida 33759 on this
day of j&l^
,2010.
- "
STRVEN BRIAN FfiREN, REFEREE
http://www.abajournal.com/news/article/aba_addresses_destabilizing_loss_of_public_confidence_in_criminal_justice_i
Retrieved on Sep 21, 2016, 1:08 pm CDT
Home / Daily News / ABA addresses 'destabilizing loss of public
ABA
ABA addresses 'destabilizing loss of public confidence' in criminal

justice in joint statement
POSTED JUL 16, 2015 10:46 AM CDT
BY DEBRA CASSENS WEISS (HTTP://WWW.ABAJOURNAL.COM/AUTHORS/4/)
The ABA and the NAACP Legal Defense and Educational fund have
issued a joint statement addressing the troubling and destabilizing loss of
public confidence in the American criminal justice system.
The statement (https://www.americanbar.org/content/dam/aba/images/abanews
/aba-ldf_statement.pdf) (PDF) notes the recent spate of killings of unarmed
African American men and women at the hands of white law enforcement
officers. While the ABA and the Fund believe that the overwhelming
percentage of police, prosecutors and judges are not racist, explicit bias
remains a real factor in our countryand criminal justice systemand
implicit or unconscious bias affects even those who may believe
themselves to be fair, the statement says.
Image from Shutterstock
(http://www.shutterstock.com).
The American criminal justice is unquestionably at a moment of crisis, the

statement says.
Doubts about fairness are reinforced by statistics showing that about

two-thirds of those incarcerated are persons of color and by U.S. Justice
Department findings in its investigation of Ferguson, Missouris police practices, according to the statement. The
Justice Department found differences in the rates at which blacks and whites were stopped, searched, cited,
arrested and subjected to the use of force in Ferguson.
The time to act is now, the statement says. Among the recommendations:
Lawmakers should review laws criminalizing behaviors that pose little danger to society. The criminal justice
system is being used to address problems of mental health and poverty, while police are taking the place of
teachers in schools that have adopted zero-tolerance policies.
Police departments should keep data on the racial identities of people who are stopped and frisked, arrested,
ticketed and issued warnings. They should also report incidents in which serious or deadly force is used, including
the race of the officers and civilians.
Prosecutors should collect and disclose more data that will help the public better understand the extent to which
racial disparities arise from prosecutorial discretion.
Prosecutors, defense lawyers and judges should adopt employee training on implicit bias.
Prosecutors offices should move quickly, aggressively, unequivocallyand yet deliberatelyto address
misconduct that reflects explicit racial bias.
Prosecution offices and police agencies should make an effort to hire and retain lawyers and officers who live in
http://www.abajournal.com/news/article/aba_addresses_destabilizing_loss_of_public_confidence_in_criminal_justice_i
and reflect the communities they serve.

&The public should have access to evidence explaining why grand juries decline to indict and why prosecutors
decline to prosecute police officers involved in fatal shootings of unarmed civilians.
Police officers should be trained how to defuse tense situations. Accountability could be promoted by greater
police use of body and vehicle cameras.
Prosecutors, judges and defense counsel must pay more attention to the collateral consequences of convictions,
which can deprive defendants of opportunities for education, employment and housing.
An ABA press release is here (https://www.americanbar.org/news/abanews/aba-news-archives/2015/07/aba_naacp_legal_def.html).
The American criminal justice system is clearly in need of reform on multiple levels, ABA President William C.
Hubbard said in the press release. As lawyers, we have a duty and responsibility to ensure the fair administration
of justice and to promote public trust in the system. The solutions are not quick or easy, but these proposals offer
a tangible and potentially significant framework to make sure the system provides justice for all.
See also:
National Law Journal (http://www.nationallawjournal.com/id=1202732496363/OpEd-Charleston-Massacre-is-Pivotal-Pointfor-Profession#ixzz3gTTtlN1K): Op-Ed: Charleston Massacre is Pivotal Point for Profession
Copyright 2016 American Bar Association. All rights reserved.
JOINT STATEMENT ON ELIMINATING BIAS

IN THE CRIMINAL JUSTICE SYSTEM
July 2015
The American Bar Association and the NAACP Legal Defense and Educational Fund,
Inc., have long and proud traditions of fighting for civil rights, human rights and equal
justice. Although, over the years, we have celebrated much progress in these arenas, we
are now confronted by a troubling and destabilizing loss of public confidence in the
American criminal justice system. The growing skepticism about the integrity of the
criminal justice system is driven by real and perceived evidence of racial bias among some
representatives of that system. This crisis of confidence must be addressed, and the time to
act is now.
While we believe that the overwhelming percentage of law enforcement officers,
prosecutors and judges are not racist, explicit bias remains a real factor in our country
and criminal justice system and implicit or unconscious bias affects even those who may
believe themselves to be fair. Indeed, as Supreme Court Justice Anthony Kennedy once
observed (in the 2001 case of Board of Trustees v. Garrett), prejudice may arise from not
just overt malice or hostile animus alone, but also insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against people
who appear to be different in respects from ourselves.
One would have to have been outside of the United States and cut off from media to
be unaware of the recent spate of killings of unarmed African American men and women at
the hands of white law enforcement officers. Several of these killings, like those of Walter
Scott in South Carolina, 12-year-old Tamir Rice in Ohio and Eric Garner in New York, have
been captured by citizen video and viewed nationwide. More recently, the in-custody
death of Freddie Gray sparked days of unrest in Baltimore, which ended only when the
officers (who were of multiple races) were charged by the local prosecutor.
Given the history of implicit and explicit racial bias and discrimination in this
country, there has long been a strained relationship between the African-American
community and law enforcement. But with video cameras and extensive news coverage
bringing images and stories of violent encounters between (mostly white) law enforcement
officers and (almost exclusively African-American and Latino) unarmed individuals into
American homes, it is not surprising that the absence of criminal charges in many of these
cases has caused so many people to doubt the ability of the criminal justice system to treat
individuals fairly, impartially and without regard to their race.
ABA-LDF Joint Statement on Eliminating

Bias in the Criminal Justice System
That impression is reinforced by the statistics on race in our criminal justice system.
With approximately 5 percent of the worlds population, the United States has
approximately 25 percent of the worlds jail and prison population. Some two-thirds of
those incarcerated are persons of color. While crime rates may vary by neighborhood and
class, it is difficult to believe that racial disparities in arrest, prosecution, conviction and
incarceration rates are unaffected by attitudes and biases regarding race.
And, to the extent that doubts remain, the U.S. Department of Justices recent
investigation of law enforcement practices in Ferguson, Missouri, should put them to rest.
In Ferguson, the Justice Department found that the dramatically different rates at which
African-American and white individuals in Ferguson were stopped, searched, cited,
arrested and subjected to the use of force could not be explained by chance or differences
in the rates at which African-American and white individuals violated the law. These
disparities can be explained at least in part by taking into account racial bias.
Given these realities, it is not only time for a careful look at what caused the current
crisis, but also time to initiate an affirmative effort to eradicate implied or perceived racial
bias in all of its forms from the criminal justice system.
As lawyers, we have a very special role to play. As the Preamble to the American
Bar Association Model Rules of Professional Conduct states,
As a public citizen, a lawyer should seek improvement of the law, access
to the legal system, the administration of justice and the quality of service
rendered by the legal profession. . . . In addition, a lawyer should further
the publics understanding of and confidence in the rule of law and the
justice system because legal institutions in a constitutional democracy
depend on popular participation and support to maintain their authority.
What must we do? The answer lies in making both macro and micro changes in our
criminal justice system.
At the macro level, Congress and state legislatures must look at the vast array of
laws that criminalize behaviors that pose little, if any, danger to society. We have overcriminalized conduct throughout the United States and have come inappropriately to rely
on the criminal justice system to address problems of mental health and poverty. We have
adopted unnecessary zero-tolerance policies in schools that inappropriately require police
officers to take the place of teachers and principals and become behavioral judges. We
need fewer criminal laws, and fewer circumstances in which police, prosecutors and judges
are called upon to deal with social, as opposed to criminal, issues.
Overcriminalization is such a significant problem that virtually every careful

observer of criminal justice in America, conservative or liberal, recognizes it. This
consensus presents a unique opportunity to unflinchingly confront the need to improve our
justice system.
2
July 2015

Decriminalization is, however, not a short-term solution to the current crisis of

confidence. Every day, law enforcement officers, prosecutors and judges are making
discretionary decisions in a country where, literally, any person could be arrested for
something if government officials focused sufficient time and energy on him or her.
We must therefore take immediate action at the micro level to begin the process of
rebuilding trust and confidence in the criminal justice system and fulfilling the promise of
equal justice.
Prosecutors play an important and vital role within the criminal justice system and
should be leaders in this effort. We have begun what we anticipate will be a series of
conversations focused on identifying ways in which prosecutors can play a more powerful
role in addressing the problem of racial bias our justice system. Our organizations arranged
an off-the-record discussion that included prosecutors and other participants in the
criminal justice system committed to equal justice. We emerged from our discussion with a
commitment to advancing the reforms listed below. We regard these reforms as necessary
investments that are essential to strengthening public confidence in the rule of law and the
legitimacy of our justice system.
1.
We need better data on the variety of interactions between law enforcement
and citizens. Earlier this year FBI Director James Comey himself a former federal
prosecutor acknowledged that gathering better and more reliable data about encounters
between the police and citizens is the first step to understanding what is really going on in
our communities and our country. Data related to violent encounters is particularly
important. As Director Comey remarked, Its ridiculous that I cant know how many
people were shot by police. Police departments should be encouraged to make and keep
reports on the racial identities of individuals stopped and frisked, arrested, ticketed or
warned for automobile and other infractions. Police departments should report incidents
in which serious or deadly force is used by officers and include the race of the officer(s) and
that of the civilian(s). This will certainly require investment of funds, but that investment
is key to a better future. We cannot understand what we cannot measure, and we cannot
change what we cannot understand.
2. Prosecutors should collect and publicly disclose more data about their work that
can enable the public to obtain a better understanding of the extent to which racial
disparities arise from the exercise of prosecutorial discretion. While this data collection
will also require investment of funds, it is essential to achieving the goal of eliminating
racial bias in the criminal justice system.
3. Prosecutors and police should seek assistance from organizations with expertise
in conducting objective analyses to identify and localize unexplained racial disparities.
These and similar organizations can provide evidence-based analyses and propose
protocols to address any identified racial disparities.
3
July 2015

4. Prosecutors offices, defense counsel and judges should seek expert assistance to
implement training on implicit bias for their employees. An understanding of the science of
implicit bias will pave the way for law enforcement officers, prosecutors and judges to
address it in their individual work. There should also be post-training evaluations to
determine the effectiveness of the training.
5. Prosecutors offices must move quickly, aggressively, unequivocally and yet
deliberately to address misconduct that reflects explicit racial bias. We must make clear
that such conduct is fundamentally incompatible with our shared values and that it has an
outsized impact on the publics perception of the fairness of the system.
6. Prosecutors offices and law enforcement agencies should make efforts to hire and
retain lawyers and officers who live in and reflect the communities they serve. Prosecutors
and police should be encouraged to engage with the community by participating in
community forums, civic group meetings and neighborhood events. Prosecutors offices
should build relationships with African-American and minority communities to improve
their understanding about how and why these communities may view events differently
from prosecutors.
7. There should be a dialogue among all the stakeholders in each jurisdiction about
race and how it affects criminal justice decision-making. In 2004, the ABA Justice Kennedy
Commission recommended the formation of Racial Justice Task Forces which would
consist of representatives of the judiciary, law enforcement and prosecutors, defenders and
defense counsel, probation and parole officers and community organizations to examine
the racial impact that policing priorities and prosecutorial and judicial decisions might
produce and whether alternative approaches that do not produce racial disparities might
be implemented without compromising public safety. There is little cost associated with
the assembly of such task forces, and they can develop solutions that could be applicable to
a variety of jurisdictions provided that the various stakeholders are willing to do the hard
work of talking honestly and candidly about race.
8. As surprising as it might seem, many people do not understand what prosecutors
do. Hence, prosecutors offices, with the help of local and state bar associations, should
seek out opportunities to explain their function and the kinds of decisions they are
routinely called upon to make. Local and state bar associations and other community
organizations should help to educate the public that the decision not to prosecute is often
as important as the decision to prosecute; that prosecutors today should not to be judged
solely by conviction rates but, instead, by the fairness and judgment reflected in their
decisions and by their success in making communities safer for all their members; and that
some of the most innovative alternatives to traditional prosecution and punishment like
diversion and re-entry programs, drug and veteran courts and drug treatment have been
instigated, developed and supported by prosecutors.
9. To ensure accountability, the public should have access to evidence explaining
why grand juries issued no true bills and why prosecutors declined to prosecute police
4
July 2015

officers involved in fatal shootings of unarmed civilians. The release of grand jury
evidence, as in Ferguson, is one way to promote the needed accountability.
10. Accountability can also be promoted by greater use of body and vehicle cameras
to create an actual record of police-citizen encounters. With the proliferation of powerful
firearms in our communities, law enforcement departments reasonably seek equipment
that enable them to protect themselves and their communities when called upon to
confront armed and dangerous individuals seeking to engage in criminal or terrorist acts.
However, while it is appropriate to arm our police and train them in the use of ever-more
powerful weapons, it is equally important to train our law enforcement officers in
techniques designed to de-escalate tense situations, make accurate judgments about when
use of force is essential and properly determine the appropriate amount of force required
in each situation.
11. We must recognize that not every lawyer has the judgment and personal
qualities to be a successful prosecutor, administer justice and be willing to acknowledge
the possibility of implicit bias. Prosecutors who routinely engage in conduct or make
decisions that call into question the fairness or integrity of their offices should be removed
from office if they cannot be trained to meet the high standards expected of public officers.
At the same time, the terms prosecutorial misconduct and police misconduct should be
used with greater care. Even the best prosecutors will make mistakes, much like the best
defense lawyers and judges do. There is good reason to limit the characterization of
misconduct to intentional acts that violate legal or ethical rules.
12. Prosecutors, judges and defense counsel must pay more attention to the
collateral consequences of convictions. In many jurisdictions, after an individual is
convicted of an offense and completes his or her sentence (by serving time, paying a fine or
completing probation or parole), the individual nevertheless faces a life sentence of
disqualification and deprivation of educational, employment, housing and other
opportunities. This runs counter to the interests we all share in rehabilitation of the
offender and positive re-integration into and engagement with the communities in which
they live. In many cases, prosecutions can be structured to limit some of the most
pernicious of these consequences, provided that the lawyers and the courts take the time
and care to examine alternative disposition options. Prosecutors, judges and defense
counsel should join together to urge legislatures and administrative agencies to reconsider
the laws and regulations that impose these collateral consequences and determine whether
they can be modified to provide more opportunities for former offenders without
compromising public safety.
The American criminal justice is unquestionably at a moment of crisis. But there
are many steps we, as members of the bar, can and should take quickly to begin to turn the
ship of justice around and ensure that the system delivers the blind justice that it promises.
If we commit ourselves to confronting and eliminating the racial biases that now exist, we
can restore the much-needed public confidence in our criminal justice system. As Supreme
Court Justice Thurgood Marshall once exhorted in accepting the Liberty Medal Award in
5
July 2015

1992, America can do better. Indeed, America has no choice but to do better.
Both the American Bar Association and the Legal Defense Fund will continue to
convene meetings with prosecutors and other law enforcement groups to support the
reforms we have identified. We also will work to support and advance a robust dialogue
among prosecutors and leaders in the profession about how best to eliminate racial bias
from our justice system.
William C. Hubbard,
President, American Bar Association
Sherrilyn Ifill
President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.
The following individuals participated in the discussion that led to this joint statement:
Sidney Butcher
Assistant States Attorney, Baltimore City State's Attorney's Office
John Chisholm
District Attorney, Milwaukee County
Kay Chopard Cohen
Executive Director, National District Attorneys Association
Angela Davis
Professor of Law, American University Washington College of Law
Mathias H. Heck
Prosecuting Attorney, Montgomery County, OH
Belinda Hill
First Assistant District Attorney, Harris County, TX
David F. Levi
Dean, Duke University School of Law
Myles Lynk
Professor of Law, Arizona State University College of Law
Wayne McKenzie
General Counsel, New York City Department of Probation
John Pfaff
Professor of Law, Fordham University
6
July 2015

Matthew Frank Redle

County and Prosecuting Attorney, Sheridan, WY
Stephen A. Saltzburg
Professor of Law, George Washington University Law School
Cyrus Vance, Jr.
District Attorney of New York County
July 2015
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THE FLORIDA BAR / Find A Lawyer / Profile
Heidi Elaine Brewer

Member in Good Standing
Bar Number:
46965
Eligible to Practice Law in Florida
Mail Address:
The Florida Bar

651 E Jefferson St
United States
Office: 850-561-5600
Email:
hbrewer@flabar.org
Personal Bar URL:
www.floridabar.org/mybarprofile/46965
vCard:
County:
Leon
Circuit:
Admitted:
04/18/1995
10-Year Discipline
History:
None
Law School:
Mercer University - Walter F. George School of Law, 1990
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presented by the Bar "as is" with no warranty of any kind, express or implied. The Florida Bar, its Board of Governors, employees, and agents thereof are not responsible for the accuracy of
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Creed of Professionalism
I revere the law, the judicial system, and the legal profession and will at all times in my
professional and private lives uphold the dignity and esteem of each.
I will further my professions devotion to public service and to the public good.
I will strictly adhere to the spirit as well as the letter of my professions code of ethics, to the
extent that the law permits and will at all times be guided by a fundamental sense of honor,
integrity, and fair play.
I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will
not improperly permit my silence or inaction to mislead anyone.
I will conduct myself to assure the just, speedy and inexpensive determination of every action
and resolution of every controversy.
I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all
times act with dignity, decency, and courtesy.
I will respect the time and commitments of others.
I will be diligent and punctual in communicating with others and in fulfilling commitments.
I will exercise independent judgment and will not be governed by a clients ill will or deceit.
My word is my bond.
Professionalism Expectations
Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces far more
than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism
are character, competence, commitment, and civility.
- The Florida Bar Standing Committee on Professionalism
Preamble:
As The Florida Bar grows, it becomes more important to articulate the bars professionalism expectations and for
Florida lawyers to demonstrate these expectations in practice. The guidance provided in these Professionalism
Expectations originates both from (1) the ethical duties established by the Florida Supreme Court in the Rules Regulating
The Florida Bar and (2) the long-standing customs of fair, civil, and honorable legal practice in Florida. Where a
Professionalism Expectation is coextensive with a lawyers ethical duty, the expectation is stated as an imperative, cast in
the terms of must or must not. Where a Professionalism Expectation is drawn from a professional custom that is not
directly provided for in the Rules Regulating The Florida Bar, the expectation is stated as a recommendation of correct
action, cast in terms of should or should not. To The Florida Bar, lawyer professionalism is:
1. embracing a commitment to serve others;
2. dedicating to properly using knowledge and skills to promote a fair and just result;
3. endeavoring to enhance knowledge, skills, and competence;
4. ensuring that concern for a clients desired result does not subvert the lawyers fairness, honesty, civility, respect, and
courtesy during interactions with fellow professionals, clients, opponents, public officials, members of the judiciary, or
the public;
5. contributing skill, knowledge, and influence to further the profession's commitment to service and the public good,
including efforts to provide all persons, regardless of their means or popularity of their causes, with access to the law and
the judicial system;
6. enhancing the legal systems reputation by educating the public about the professions capabilities and limits,
specifically about what the legal system can achieve and the appropriate methods of obtaining those results; and
7. accepting responsibility for one's own professional conduct and the conduct of others in the profession, including
encouraging other lawyers to meet these civility and Professionalism Expectations and fostering peer regulation to ensure
that each lawyer is competent and public-spirited.
To reinforce and communicate its expectations of lawyer professionalism among our members, The Florida Bar
adopts the following Professionalism Expectations:
1. Commitment to Equal Justice Under the Law and to the Public Good
A license to practice law is a privilege that gives the lawyer a special position of trust, power, and influence in our
society. This privilege requires a lawyer to use that position to promote the public good and to foster the reputation of the
legal profession while protecting our system of equal justice under the law.
Expectations:
1.1 A lawyer should avoid the appearance of impropriety.
1.2 A lawyer should counsel and encourage other lawyers to abide by these Professionalism Expectations.
1.3 A lawyer should promote the publics understanding of the lawyers role in the legal profession and protect public
confidence in a just and fair legal system founded on the rule of law.
1.4 A lawyer should not enter into a lawyer-client relationship when the lawyer cannot provide competent and diligent
service to the client throughout the course of the representation.
1.5 A lawyer must not seek clients through the use of misleading or manipulative oral and written representations or
advertisements. (See R. Regulating Fla. Bar 4-7.13 and 4-7.14). Contingency fee arrangements must be in writing and
follow R. Regulating Fla. Bar 4-1.5(f).
1.6 When employed by a new client, a lawyer should discuss fee and cost arrangements at the outset of the representation
and promptly confirm those arrangements in writing.
1.7 A lawyer must place a clients best interest ahead of the lawyers or another partys interests. (See R. Regulating Fla.
Bar 4-1.7(a)(2)).
1.8 A lawyer must maintain and preserve the confidence and private information of clients. (See R. Regulating Fla. Bar 41.6).
1.9 In any representation where the fee arrangement is other than a contingent percentage-of-recovery fee or a fixed, flatsum fee or in which the representation is anticipated to be of more than brief duration, a lawyer should bill clients on a
regular, frequent interim basis, and avoid charging unnecessary expenses to the client.
1.10 When a fee dispute arises that cannot be amicably resolved, a lawyer should endeavor to utilize an alternative dispute
resolution mechanism such as fee arbitration.
1.11 A lawyer must routinely keep clients informed and attempt to resolve client concerns. (See R. Regulating Fla. Bar 41.4 ). In the case of irreconcilable disagreements with a client, the lawyer must provide diligent representation until the
lawyer-client relationship is formally dissolved in compliance with the law and the clients best interests. (See R.
Regulating Fla. Bar 4-1.16).
1.12 A lawyer must devote professional time and resources and use civic influence to ensure equal access to our system of
justice. (See R. Regulating Fla. Bar 4-6.1).
1.13 A lawyer must avoid discriminatory conduct prejudicial to the administration of justice in connection with the
practice of law. (See R. Regulating Fla. Bar 4-8.4(d)).
2. Honest and Effective Communication
A lawyer's word is his or her bond. Effective communication requires lawyers to be honest, diligent, civil, and
respectful in their interactions with others.
Expectations:
2.1 A lawyer should inform every client what the lawyer expects from the client and what the client can expect from the
lawyer during the term of the legal representation.
2.2 Candor and civility must be used in all oral and written communications. (See R. Regulating Fla. Bar 4-8.4(c)).
2.3 A lawyer must avoid disparaging personal remarks or acrimony toward opposing parties, opposing counsel, third
parties or the court. (See R. Regulating Fla. Bar 4-8.4(d)).
2.4 A lawyer must timely serve all pleadings to prevent prejudice or delay to the opposing party. (See R. Regulating Fla.
Bar 4-3.2).
2.5 A lawyers communications in connection with the practice of law, including communications on social media, must
not disparage anothers character or competence or be used to inappropriately influence or contact others. (See R.
Regulating Fla. Bar 4-8.4(d)).
2.6 A lawyer should use formal letters or e-mails for legal correspondence and should not use text messages to correspond
with a client or opposing counsel unless mutually agreed.
2.7 In drafting a proposed letter of intent, the memorialization of an oral agreement, or a written contract reflecting an
agreement reached in concept, a lawyer should draft a document that fairly reflects the agreement of the parties.
2.8 In drafting documents, a lawyer should point out to opposing counsel all changes that the lawyer makes or causes to
be made from one draft to another.
2.9 A lawyer should not withhold information from a client to serve the lawyer's own interest or convenience.
2.10 A lawyer must not knowingly misstate, misrepresent, or distort any fact or legal authority to the court or to opposing
counsel and must not mislead by inaction or silence. Further, the discovery of additional evidence or unintentional
misrepresentations must immediately be disclosed or otherwise corrected. (See R. Regulating Fla. Bar 4-3.3 and 4-8.4).
2.11 A lawyer must not inappropriately communicate with a party represented by a lawyer (See R. Regulating Fla. Bar 44.2), including not responding reply all to e-mails.
2.12 A lawyer should diligently prepare legal forms and documents to avoid future harm or litigation for the client while
ensuring compliance with the requirements of the law.
2.13 Social media must not be used to disparage opposing parties, lawyers, judges, and members of the public. (See R.
Regulating Fla. Bar 4-8.2(a) and 4-8.4(d)).
2.14 Social media should not be used to avoid the ethical rules regulating lawyer advertising.
2.15 Social media must not be used to inappropriately contact judges, mediators, jurors, witnesses, or represented parties.
(See R. Regulating Fla. Bar 4-3.5 and 4-4.2).
2.16 Social media must not be used for the purpose of influencing adjudicative proceedings. (See R. Regulating Fla. Bar
4-3.6).
2.17 A lawyer must ensure that the use of electronic devices does not impair the attorney-client privilege or
confidentiality. (See R. Regulating Fla. Bar 4-1.6).
2.18 A lawyer must diligently respond to calls, correspondences, complaints, and investigations by The Florida Bar. (See
R. Regulating Fla. Bar 4-8.4(g)).
3. Adherence to a Fundamental Sense of Honor, Integrity, and Fair Play
Courtesy, cooperation, integrity, fair play, and abiding by a sense of honor are paramount for preserving the integrity
of the profession and to ensuring fair, efficient, and effective administration of justice for the public.
Expectations:
3.1 A lawyer must not engage in dilatory or delay tactics. (See R. Regulating Fla. Bar 4-3.2).
3.2 A lawyer should not make scheduling decisions that limit opposing counsel's opportunity to prepare or respond.
3.3 A lawyer should not unreasonably oppose an adversary's motion.
3.4 A lawyer must not permit non-lawyer personnel to communicate with a judge or judicial officer on any matters
pending before the judge or officer or with other court personnel except on scheduling and other ministerial matters. (See
R. Regulating Fla. Bar 4-3.5(b) and 4-8.4(a)).
3.5 A lawyer must avoid substantive ex parte communications in a pending case with a presiding judge. The lawyer must
notify opposing counsel of all communications with the court or other tribunal, except those involving only scheduling or
clerical matters. (See R. Regulating Fla. Bar 4-3.5).
3.6 When submitting a written communication to a court or other tribunal, a lawyer should provide opposing counsel with
a copy of the document contemporaneously or sufficiently in advance of any related hearing.
3.7 A lawyer must promptly prepare a proposed order, ensure that the order fairly and adequately represents the courts
ruling before submitting the order to the court, and advise the court whether opposing counsel has approved the order.
(See R. Regulating Fla. Bar 4-3.4(c)).
3.8 A lawyer should only schedule depositions to ascertain relevant facts and not to generate income or harass deponents
or opposing counsel.
3.9 A lawyer must not ask a deponent irrelevant personal questions or questions designed to embarrass a deponent. (See
R. Regulating Fla. Bar 4-4.4(a)).
3.10 A lawyer should not make improper objections in depositions.
3.11 A lawyer must not prevent a deponent from answering questions unless a legal privilege applies. (See R. Regulating
Fla. Bar 4-3.4(c)).
3.12 When scheduling depositions, hearings, and other court proceedings, a lawyer should request an amount of time that
permits all parties in the case the opportunity to be fully and fairly heard on the matter.
3.13 A lawyer should immediately provide a scheduling notice for a hearing, deposition, or trial to all opposing parties.
3.14 A lawyer should notify opposing parties and subpoenaed witnesses of a cancelled or rescheduled hearing, deposition,
or trial.
3.15 During pre-trial disclosure, a lawyer should make a reasonable, good-faith effort to identify witnesses likely to be
called to testify.
3.16 During pre-trial disclosure, a lawyer should make a reasonable good-faith effort to identify exhibits to be proffered
into evidence.
3.17 A lawyer should not mark on or alter exhibits, charts, graphs, or diagrams without opposing counsel's permission or
leave of court.
3.18 A lawyer must not threaten opposing parties with sanctions, disciplinary complaints, criminal charges, or additional
litigation to gain a tactical advantage. (See R. Regulating Fla. Bar 4-3.4(g) and (h)).
4. Fair and Efficient Administration of Justice
The just, speedy, and inexpensive determination of every controversy is necessary to preserve our system of justice.
Expectations:
4.1 A lawyer should be familiar with the courts administrative orders, local rules, and each judges published standing
orders, practices, and procedures.
4.2 A lawyer should endeavor to achieve the client's lawful objectives as economically and expeditiously as possible.
4.3 A lawyer should counsel the client concerning the benefits of mediation, arbitration, and other alternative methods of
resolving disputes.
4.4 A lawyer should counsel the client to consider settlement in good faith.
4.5 A lawyer should accede to reasonable requests for waivers of procedural formalities when the client's legitimate
interests are not adversely affected.
4.6 A lawyer must not invoke a rule for the purpose of creating undue delay, or propose frivolous oral or written
arguments which do not have an adequate basis in the law nor fact. (See R. Regulating Fla. Bar 4-3.1).
4.7 A lawyer must not use discovery to harass or improperly burden an adversary or cause the adversary to incur
unnecessary expense. (See R. Regulating Fla. Bar 4-4.4).
4.8 A lawyer should frame reasonable discovery requests tailored to the matter at hand.
4.9 A lawyer should assure that responses to proper discovery requests are timely, complete, and consistent with the
obvious intent of the request. A lawyer should not avoid disclosure unless a legal privilege prevents disclosure.
4.10 A lawyer should not respond to discovery requests in a disorganized, unintelligible, or inappropriate manner, in an
attempt to conceal evidence.
4.11 A lawyer should stipulate to all facts and principles of law that are not in dispute and should promptly respond to
requests for stipulations of fact or law.
4.12 After consulting with the client, a lawyer should voluntarily withdraw claims and defenses that are without merit,
superfluous, or cumulative.
4.13 A lawyer should be fully prepared when appearing in court or at hearings.
4.14 A lawyer should not use voir dire to extract promises from or to suggest desired verdicts to jurors.
4.15 A lawyer should abstain from all acts, comments, and attitudes calculated to curry favor with jurors.
4.16 A lawyer should not express bias or personal opinion concerning any matter at issue in opening statements and in
arguments to the jury.
4.17 A lawyer should not make offers or requests for a stipulation in front of the jury.
4.18 A lawyer should not use the post-hearing submission of proposed orders as an opportunity to argue or reargue a
matters merits.
4.19 A lawyer must not request rescheduling, cancellations, extensions, and postponements without legitimate reasons or
solely for the purpose of delay or obtaining unfair advantage. (See R. Regulating Fla. Bar 4-4.4).
4.20 A lawyer must not criticize or denigrate opposing parties, witnesses, or the court to clients, media, or members of the
public. (See R. Regulating Fla. Bar 4-8.2(a) and 4-8.4(d)).
5. Decorum and Courtesy
When lawyers display reverence for the law, the judicial system, and the legal profession by acting with respect,
decorum, and courtesy, they earn the trust of the public and help to preserve faith in the operation of a fair judicial system.
Expectations:
5.1 A lawyer should abstain from rude, disruptive, and disrespectful behavior. The lawyer should encourage clients and
support personnel to do the same.
5.2 A lawyer should be civil and courteous in all situations, both professional and personal, and avoid conduct that is
degrading to the legal profession. (See R. Regulating Fla. Bar 3-4.3).
5.3 A lawyer must always behave in a courteous and formal manner in hearings, depositions, and trials and should refrain
from seeking special consideration from a judge or juror.
5.4 A lawyer should refer to all parties, witnesses, and other counsel by their last names during legal proceedings.
5.5 A lawyer should request permission from the court before approaching the bench or submitting any document.
5.6 A lawyer should state only the legal grounds for an objection unless the court requests further argument or elaboration.
5.7 A lawyer should inform clients and witnesses that approving and disapproving gestures, facial expressions, or audible
comments are absolutely prohibited in legal proceedings.
5.8 A lawyer should abstain from conduct that diverts the fact-finders attention from the relevant facts or causes a factfinder to make a legally impermissible decision.
5.9 A lawyer should address objections, requests, and observations to the judge.
5.10 A lawyer should attempt to resolve disagreements before requesting a court hearing or filing a motion to compel or
for sanctions.
6. Respect for the Time and Commitments of Others
Respecting the time and commitments of others is essential to the efficient and fair resolution of legal matters.
Expectations:
6.1 A lawyer should not impose arbitrary or unreasonable deadlines on others.
6.2 A lawyer should schedule a deposition during a time period sufficient to allow all parties to examine the deponent.
6.3 Unless circumstances compel more expedited scheduling, a lawyer should provide litigants, witnesses, and other
affected persons with ample advance notice of hearings, depositions, meetings, and other proceedings, and whenever
practical, schedule these events at times convenient for all interested persons.
6.4 A lawyer should accede to all reasonable requests for scheduling, rescheduling, cancellations, extensions, and
postponements that do not prejudice the client's opportunity for full, fair, and prompt adjudication.
6.5 A lawyer should promptly agree to a proposed time for a hearing, deposition, meeting or other proceeding or make his
or her own counter proposal of time.
6.6 A lawyer should promptly call potential scheduling conflicts or problems to the attention of those affected, including
the court or tribunal.
6.7 A lawyer should avoid last-minute cancellations of hearings, depositions, meetings, and other proceedings.
6.8 A lawyer should promptly notify the court or tribunal when a scheduled court appearance becomes unnecessary.
6.9 A lawyer should be punctual in attending all court appearances, depositions, meetings, conferences, and other
proceedings.
6.10 A lawyer must respond promptly to inquiries and communications from clients and others. (See R. Regulating Fla.
Bar 4-1.4.)
7. Independence of Judgment
An enduring value of a lawyers service is grounded in the lawyers willingness to exercise independent judgment in
practice and while giving the client advice and counsel.
Expectations:
7.1 A lawyer should exercise independent judgment and should not be governed by the clients ulterior motives, ill will,
or deceit.
7.2 A lawyer should counsel a client or prospective client, even with respect to a meritorious claim or defense, about the
public and private burdens of pursuing the claim as compared with the benefits to be achieved.
7.3 In advising a client, a lawyer should not understate or overstate achievable results or otherwise create unrealistic
expectations.
7.4 A lawyer should not permit a client's ill will toward an adversary, witness, or tribunal to become that of the lawyer.
7.5 A lawyer must counsel a client against using tactics designed: (a) to hinder or improperly delay a legal process; or (b)
to embarrass, harass, intimidate, improperly burden, or oppress an adversary, party or any other person and should
withdraw from representation if the client insists on such tactics. (See R. Regulating Fla. Bar 4-1.16, 4-3.2, and 4-4.4).
7.6 In contractual and business negotiations, a lawyer should counsel the client concerning what is reasonable and
customary under the circumstances.
History
The Florida Bar Commission on Lawyer Professionalism promulgated a set of Standards of Professionalism
submitted to the Board of Governors in May of 1989. The Board appointed a Special Committee who revised the
Standards and amended the title to the Ideals and Goals of Professionalism. These aspirational guidelines were adopted
by the Board of Governors of The Florida Bar on May 16, 1990.
The Florida Supreme Court has added the civility provision in the Oath of Admission to The Florida Bar adopted on
September 10, 2011, and implemented SC13-688: Code for Resolving Professionalism Complaints adopted on June 6,
2013.
As a result of this change and a perceived decline in the lack of professionalism in the practice of law, in May 2014,
The Florida Bar Standing Committee on Professionalism was requested by Bar leadership to review and develop uniform
professionalism guidelines including electronic communications for statewide distribution. The Professionalism
Expectations resulted from pairing existing professionalism guides with new technological concepts and this document
was approved by the Standing Committee on Professionalism on October 16, 2014, and The Florida Bar Board of
Governors on January 30, 2015.
Supreme Court of Florida

_____________
No. SC11-1702
_____________
IN RE: OATH OF ADMISSION TO THE FLORIDA BAR

[September 12, 2011]
PER CURIAM.
Today we revise the Oath of Attorney administered to new members of The
Florida Bar to recognize [t]he necessity for civility in the inherently contentious
setting of the adversary process. In re Snyder, 472 U.S. 634, 647 (1985).1
In recent years, concerns have grown about acts of incivility among
members of the legal profession. Among others, the American Board of Trial
Advocates (ABOTA) has sought to increase awareness of the importance of
civility in the practice of law. The Code of Professionalism of ABOTA contains a
pledge to [b]e respectful in my conduct toward my adversaries. ABOTA Code
of Professionalism, http://www.abota.org/index.cfm?pg=professionalism. Since
1. See art. V, 15, Fla. Const.
2003, the Lawyers Oath sworn by admittees of the South Carolina Bar has
contained the following pledge: To opposing parties and their counsel, I pledge
fairness, integrity, and civility, not only in court, but also in all written and oral
communications. S.C. App. Ct. R. 402(k)(3). We have determined that a similar
pledge should be added to Floridas oath.
Recognizing the importance of respectful and civil conduct in the practice of
law, we therefore revise the Oath of Admission to The Florida Bar as set forth
below. New language is indicated by underscoring.
OATH OF ADMISSION
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 in 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;
-2-
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 anyones cause for
lucre or malice. So help me God.
This oath shall be effective immediately, and no rehearing will be permitted in this
case.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and PERRY, JJ., concur.
-3-
American Board of Trial Advocates
Code of Professionalism
As a member of the American Board of Trial Advocates, I shall
Always remember that the practice of law is first and foremost a profession.
Encourage respect for the law, the courts, and the right to trial by jury.
Always remember that my word is my bond and honor my responsibilities to serve

as an officer of the court and protector of individual rights.
Contribute time and resources to public service, public education, charitable and
pro bono activities in my community.
Work with the other members of the bar, including judges, opposing counsel, and
those whose practices are different from mine, to make our system of justice
more accessible and responsive.
Resolve matters and disputes expeditiously, without unnecessary expense, and

through negotiation whenever possible.
Keep my clients well-informed and involved in making decisions affecting them.
Achieve and maintain proficiency in my practice and continue to expand

my knowledge of the law.
Be respectful in my conduct toward my adversaries.
Honor the spirit and intent, as well as the requirements of applicable rules or
codes of professional conduct, and shall encourage others to do so.
Ethics
Informational Packet
CANDOR TOWARD
THE TRIBUNAL
Courtesy of
The Florida Bar
Ethics Department
TABLE OF CONTENTS
Ethics Opinion
Page #
RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL .................................................................. 3

OPINION 04-1 ................................................................................................................................ 8
OPINION 90-6 (Reconsideration) ................................................................................................ 11
OPINION 90-1 .............................................................................................................................. 13
OPINION 86-3 .............................................................................................................................. 16
OPINION 82-3 .............................................................................................................................. 18
OPINION 75-19 ............................................................................................................................ 23
RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL

(a) False Evidence; Duty to Disclose. A lawyer shall not 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;
(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;
(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; 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 lawyers client, or a witness called by the lawyer has offered material
evidence and the lawyer comes to know of its falsity, the lawyer shall 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.
(b) 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 shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal.
(c) Ex Parte Proceedings. In an ex parte proceeding a lawyer shall 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.
(d) Extent of Lawyer's Duties. The duties stated in this rule continue beyond the
conclusion of the proceeding and apply even if compliance requires disclosure of information
otherwise protected by rule 4-1.6.
Comment
This rule governs the conduct of a lawyer who is representing a client in the proceedings of a
tribunal. See terminology for the definition of "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. Thus, for example, subdivision (a)(4) requires a lawyer to take
reasonable remedial measures if the lawyer comes to know that a client who is testifying in a
deposition has offered evidence that is false.
This rule sets forth the special duties of lawyers as officers of the court to avoid conduct that
undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an
adjudicative proceeding has an obligation to present the client's case with persuasive force.
Performance of that duty while maintaining confidences of the client is qualified by the
advocate's duty of candor to the tribunal. Consequently, 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 or fact or evidence that the lawyer knows to be false.
Lawyers who represent clients in alternative dispute resolution processes are governed by the
Rules of Professional Conduct. When the dispute resolution process takes place before a tribunal,
as in binding arbitration (see terminology), the lawyer's duty of candor is governed by rule 4-3.3.
Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is
governed by rule 4-4.1.
Representations by a lawyer
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. Compare rule 4-3.1. 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 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. Regarding compliance with rule 4-1.2(d), see the comment to that rule. See also the
comment to rule 4-8.4(b).
Misleading legal argument
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. Furthermore, as stated in subdivision (a)(3),
an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that
has not been disclosed by the opposing party. The underlying concept is that legal argument is a
discussion seeking to determine the legal premises properly applicable to the case.
False evidence
Subdivision (a)(4) requires that the 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 establishing its
falsity.
If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false
evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If
the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must
refuse to offer the false evidence. If only a portion of a witness's testimony will be false, the
lawyer may call the witness to testify but may not elicit or otherwise permit the witness to
present the testimony that the lawyer knows is false.
The duties stated in this rule apply to all lawyers, including defense counsel in criminal cases.
The prohibition against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyers reasonable belief that evidence is false does not preclude its
presentation to the trier of fact.
The rule generally recognized is that, if necessary to rectify the situation, an advocate must
disclose the existence of the client's deception to the court. Such a disclosure can result in grave
consequences to the client, including not only a sense of betrayal but also loss of the case and
perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving
the court, thereby subverting the truth-finding process that the adversary system is designed to
implement. See rule 4-1.2(d). Furthermore, unless it is clearly understood that the lawyer will act
upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's
advice to reveal the false evidence and insist that the lawyer keep silent. Thus, the client could in
effect coerce the lawyer into being a party to fraud on the court.
Remedial measures
If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily
is to remonstrate with the client confidentially if circumstances permit. In any case, the advocate
should ensure disclosure is made to the court. It is for the court then to determine what should be
done making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps
nothing. If the false testimony was that of the client, the client may controvert the lawyer's
version of their communication when the lawyer discloses the situation to the court. If there is an
issue whether the client has committed perjury, the lawyer cannot represent the client in
resolution of the issue and a mistrial may be unavoidable. An unscrupulous client might in this
way attempt to produce a series of mistrials and thus escape prosecution. However, a second
such encounter could be construed as a deliberate abuse of the right to counsel and as such a
waiver of the right to further representation. This commentary is not intended to address the
situation where a client or prospective client seeks legal advice specifically about a defense to a
charge of perjury where the lawyer did not represent the client at the time the client gave the
testimony giving rise to the charge.
Refusing to offer proof believed to be false
Although subdivision (a)(4) only prohibits a lawyer from offering evidence the lawyer knows to
be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer
reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to
discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate.
A lawyer may not assist the client or any witness in offering false testimony or other false
evidence, nor may the lawyer permit the client or any other witness to testify falsely in the
narrative form unless ordered to do so by the tribunal. If a lawyer knows that the client intends to
commit perjury, the lawyer's first duty is to attempt to persuade the client to testify truthfully. If
the client still insists on committing perjury, the lawyer must threaten to disclose the client's
intent to commit perjury to the judge. If the threat of disclosure does not successfully persuade
the client to testify truthfully, the lawyer must disclose the fact that the client intends to lie to the
tribunal and, per 4-1.6, information sufficient to prevent the commission of the crime of perjury.
The lawyer's duty not to assist witnesses, including the lawyer's own client, in offering false
evidence stems from the Rules of Professional Conduct, Florida statutes, and caselaw.
Rule 4-1.2(d) prohibits the lawyer from assisting a client in conduct that the lawyer knows or
reasonably should know is criminal or fraudulent.
Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or assisting a witness to testify
falsely.
Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct or
knowingly assisting another to do so.
Rule 4-8.4(b) prohibits a lawyer from committing a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness, or fitness as a lawyer.
Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the
administration of justice.
Rule 4-1.6(b) requires a lawyer to reveal information to the extent the lawyer reasonably believes
necessary to prevent a client from committing a crime.
This rule, 4-3.3(a)(2), requires a lawyer to reveal a material fact to the tribunal when disclosure
is necessary to avoid assisting a criminal or fraudulent act by the client, and 4-3.3(a)(4) prohibits
a lawyer from offering false evidence and requires the lawyer to take reasonable remedial
measures when false material evidence has been offered.
Rule 4-1.16 prohibits a lawyer from representing a client if the representation will result in a
violation of the Rules of Professional Conduct or law and permits the lawyer to withdraw from
representation if the client persists in a course of action that the lawyer reasonably believes is
criminal or fraudulent or repugnant or imprudent. Rule 4-1.16(c) recognizes that notwithstanding
good cause for terminating representation of a client, a lawyer is obliged to continue
representation if so ordered by a tribunal.
To permit or assist a client or other witness to testify falsely is prohibited by section 837.02,
Florida Statutes (1991), which makes perjury in an official proceeding a felony, and by section
777.011, Florida Statutes (1991), which proscribes aiding, abetting, or counseling commission of
a felony.
Florida caselaw prohibits lawyers from presenting false testimony or evidence. Kneale v.
Williams, 30 So. 2d 284 (Fla. 1947), states that perpetration of a fraud is outside the scope of the
professional duty of an attorney and no privilege attaches to communication between an attorney
and a client with respect to transactions constituting the making of a false claim or the
perpetration of a fraud. Dodd v. The Florida Bar, 118 So. 2d 17 (Fla. 1960), reminds us that "the
courts are . . . dependent on members of the bar to . . . present the true facts of each cause . . . to
enable the judge or the jury to [decide the facts] to which the law may be applied. When an
attorney . . . allows false testimony . . . [the attorney] . . . makes it impossible for the scales [of
justice] to balance." See The Fla. Bar v. Agar, 394 So. 2d 405 (Fla. 1981), and The Fla. Bar v.
Simons, 391 So. 2d 684 (Fla. 1980).
The United States Supreme Court in Nix v. Whiteside, 475 U.S. 157 (1986), answered in the
negative the constitutional issue of whether it is ineffective assistance of counsel for an attorney
to threaten disclosure of a client's (a criminal defendant's) intention to testify falsely.
Ex parte proceedings
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 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.
[Revised: 02/01/2010]
PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 04-1
June 24, 2005
A lawyer whose client has repeatedly stated that the client will commit perjury must
withdraw from the representation and inform the court of the clients intent to lie under oath.
When the withdrawal and disclosure occur depends on the circumstances and may be made ex
parte in camera if permitted by the court.
Note: This opinion was approved by The Florida Bar Board of Governors on October 21, 2005.
RPC:
4-1.2(d), 4-1.6, 4-1.7, 4-1.16, 4-3.3
Statutes:
837.02 and 777.011, Florida Statutes
A member of The Florida Bar has inquired about the appropriate course of conduct in the
representation of a client who has stated his intent to commit perjury at his upcoming criminal
trial. The client has repeatedly expressed the clients intent to commit perjury and, despite the
lawyers repeated warnings, insists upon testifying falsely. The client has been warned that the
lawyer must and will advise the court if a fraud is made upon the court. The lawyer has
questioned the lawyers ethical obligations under this scenario. This inquiry addresses the
circumstances when a lawyer definitely knows that the client intends to commit perjury. This is
distinct from the many other situations where the lawyer may suspect but does not know that the
client intends to commit perjury. This opinion only addresses this specific inquiry.
Many ethics rules relate to this inquiry. Rule 4-1.2(d), Rules Regulating The Florida Bar,
prohibits a lawyer from assisting a client in conduct the lawyer knows or reasonably should
know is criminal or fraudulent. Rule 4-1.6, the confidentiality rule, which is very broad, applies
"to all information relating to the representation, whatever its source." Comment, Rule 4-1.6.
However, there are exceptions to the confidentiality rule. Rule 4-1.6(b)(1) requires a lawyer to
reveal information necessary to prevent a client from committing a crime. While interpretation
of statutes is beyond the scope of an ethics opinion, it appears that it is a crime for a lawyer to
permit or assist a client or other witness to testify falsely. See Florida Statutes 837.02 and
777.011.
The "Candor Towards the Tribunal" rule, Rule 4-3.3, provides in pertinent part:
(1) make a false statement of material fact or law to a tribunal;
(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;
*
(4) permit any witness, including a criminal defendant, to offer testimony or

other 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 has offered material evidence and thereafter
comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) Extent of Lawyer's Duties. The duties stated in paragraph (a) continue
beyond the conclusion of the proceeding and apply even if compliance requires
disclosure of information otherwise protected by rule 4-1.6 [concerning lawyerclient confidentiality].
[Emphasis added.]
A lawyers obligation to make disclosures under Rule 4-3.3 is triggered when the lawyer
knows that a client or a witness for the client will make material false statements to a tribunal.
Under the facts presented, the lawyer knows the client will make a misrepresentation to the court
because the client has repeatedly expressed his intent to commit perjury.
The comment to Rule 4-3.3 provides the following guidance:
If a lawyer knows that the client intends to commit perjury, the lawyers first duty
is to attempt to persuade the client to testify truthfully. If the client still insists on
committing perjury, the lawyer must threaten to disclose the clients intent to
commit perjury to the judge. If the threat of disclosure does not successfully
persuade the client to testify truthfully, the lawyer must disclose the fact that the
client intends to lie to the tribunal and, per 4-1.6, information sufficient to prevent
the commission of the crime of perjury.
A lawyer is required to reveal information that is necessary to prevent a client from
committing a crime, including the crime of perjury. Rule 4-1.6(b)(1), Rules Regulating The
Florida Bar. The comment to Rule 4-1.6 provides:
It is admittedly difficult for a lawyer to know when the criminal intent will
actually be carried out, for the client may have a change of mind.
*
Where practical the lawyer should seek to persuade the client to take suitable
action. In any case, a disclosure adverse to the clients interest should be no
greater than the lawyer reasonably believes necessary to the purpose.
If the lawyer knows that the client will testify falsely, withdrawal does not fulfill the lawyers
ethical obligations, because withdrawal alone does not prevent the client from committing
perjury. Rather, a lawyer must disclose to the court a clients intention to commit perjury.
Timing of the disclosure may vary based on the facts of the case and, in some cases, may be
made ex parte in camera. Ultimately, the method of disclosure is subject to the discretion of the
court. This disclosure causes a conflict of interest between the lawyers ethical obligation to
disclose and the clients interest. Rule 4-1.7, Rules Regulating The Florida Bar. Due to the
conflict, the lawyer must move to withdraw. Rule 4-1.16(a), Rules Regulating The Florida Bar.
Notwithstanding good cause to withdraw, if the court requires the lawyer to continue the
representation, the lawyer must comply with the courts order. Rule 4-1.16(c), Rules Regulating
The Florida Bar. A lawyer may offer the clients testimony in the narrative only if the court
orders the lawyer to do so. Rule 4-3.3(a)(4), Rules Regulating The Florida Bar.
In the event that the client does not give advance notice to the lawyer prior to testifying
falsely, Rule 4-3.3(a)(2) and the comment require the lawyer to take reasonable remedial
measures to rectify the fraud. The comment to Rule 4-3.3 states:
When false evidence is offered by the client, however, a conflict may arise
between the lawyer's duty to keep the client's revelations confidential and the duty
of candor to the court. Upon ascertaining that material evidence is false, the
lawyer should seek to persuade the client that the evidence should not be offered
or, if it has been offered, that its false character should immediately be disclosed.
If the persuasion is ineffective, the lawyer must take reasonable remedial
measures.
*
If perjured testimony or false evidence has been offered, the advocate's proper
course ordinarily is to remonstrate with the client confidentially. If that fails, the
advocate should seek to withdraw if that will remedy the situation....[I]f
withdrawal will not remedy the situation or is impossible and the advocate
determines that disclosure is the only measure that will avert a fraud on the court,
the advocate should make disclosure to the court. It is for the court then to
determine what should be done-making a statement about the matter to the trier of
fact, ordering a mistrial, or perhaps nothing.
In conclusion, when a lawyer is representing a criminal client who has stated an intention
to commit perjury, the lawyer is obligated, pursuant to Rules 4-1.2(d), 4-1.6(b)(1) and 43.3(a)(4), to disclose the clients intent to the court. If the lawyer is not given advance notice of
the clients intent to lie, and the client offers false testimony, then the lawyer must convince the
client to agree to disclosure and remediation of the false testimony; failing that, the lawyer must
disclose to the court anyway. Absent client consent, the lawyers disclosure of the clients false
testimony or intent to offer false testimony will create a conflict between the lawyer and the
client requiring the lawyer to move to withdraw from representation pursuant to Rule 4-1.16(a).
If the court requires the lawyer to remain in the case, despite good cause for withdrawal, the
lawyer must do so. Rule 4-1.16(c). It is then up to the court to determine what should be done
with the information. This opinion is limited to the situation presented when a lawyer knows
that his or her client is going to commit perjury. This opinion does not address the situation
when a lawyer merely suspects but does not know that the client intends to commit perjury.

OPINION 90-6 (Reconsideration)
May 29, 2009
A lawyer who learns that a criminal defendant is proceeding under a false name before
the lawyer agrees to represent the criminal defendant who cannot persuade the client to correct
the name must decline representation. A lawyer who learns that a criminal defendant who is an
existing client is proceeding under a false name must withdraw from representation and must
admonish the client not to commit perjury, but cannot disclose the clients use of the false name
to the court unless the client makes an affirmative misrepresentation to the court regarding the
name.
Note: This opinion was approved by The Florida Bar Board of Governors on May 29, 2009.
RPC:
4-1.2(d), 4-1.4, 4-1.6(b), 4-1.16(a), 4-3.3, 4-3.4(c), 4-4.1, 4-8.4(d)
Opinions:
90-6 (withdrawn)
In former Florida Ethics Opinion 90-6, a criminal defense attorney inquired about an
attorney's obligation upon discovering that a client who is a defendant in a pending criminal
proceeding gave an alias when arrested, and proceedings have been brought under the alias. The
attorney asked whether this information must be revealed to the court and, if so, whether the
attorney must inform the court of the client's true identity. Former Florida Ethics Opinion 90-6
concluded that a criminal defense attorney who learns that his or her client is proceeding under a
false name may not inform the court of this fact due to the attorney-client privilege, the client's
constitutional right to effective assistance of counsel, or the client's constitutional privilege
against self-incrimination, but that the attorney may not assist the client in perpetrating or
furthering a crime or a fraud on the court. The opinion further concluded that if the court
requests information about the client's identity or record, "the client and defense counsel may
answer truthfully (if the client, after consultation with counsel, decides that doing so is in his or
her best interests) or may decline to answer on the basis of any applicable privilege."
The Committee withdrew Florida Ethics Opinion 90-6 at its March 16, 2007 meeting. In
order to provide guidance to Florida Bar members on this issue, the Board of Governors issues
this opinion.
Rule of Professional Conduct 4-3.3(a) states in pertinent part:
(1) make a false statement of material fact or law to a tribunal;
(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[.]
Additionally, Rule 4-1.2(d) prohibits a lawyer from assisting a client in criminal or fraudulent
conduct, while Rule 4-8.4(c) prohibits a lawyer from "dishonesty, fraud, deceit, or
misrepresentation."
The mere act of filing pleadings under the false name used by the client or responding to
the alias when called at a docket sounding does not involve misrepresentation to the court.
However, the lawyer cannot permit the client to lie and therefore, if asked, the client must give
his or her true name or invoke a privilege in refusing to respond.
The Board will address the following scenarios: 1) the lawyer learns in the initial
consultation before the lawyer accepts representation that a criminal defendant is being charged
and proceeding under a false name; and 2) the lawyer learns after representation begins that a
criminal defendant client is being charged and proceeding under a false name.
If the lawyer learns that the client has given a false name at the outset of the
representation, before the lawyer has accepted representation of the criminal defendant in the
case, the lawyer must decline to represent the client on the basis of the false name unless the
prospective client agrees to disclose to the court that the client is proceeding under a false name.
See Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3 (a)(2) and (b), 4-3.4(c), 4-4.1, and 4-8.4, Rules of
Professional Conduct.
If the lawyer learns of the false name after representation has begun, the lawyer should
inform the client that the lawyer cannot assist the client in misleading the court regarding the
client's identity, and the lawyer should attempt to persuade the client to disclose that the client is
proceeding under a false name. Rules 4-1.2(d), 4-1.4, 4-1.6(b)(1), 4-3.3(a)(2) and (b), 4-3.4(c),
and 4-8.4, Rules of Professional Conduct. If the client refuses to disclose the information and
insists that the client will maintain the false name throughout the case, the lawyer must move to
withdraw from the client's representation. Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3(a)(2) and (b),
4-3.4(c), and 4-8.4, Rules of Professional Conduct. The lawyer must counsel the client not to
commit perjury. Rules 4-1.2(d), 4-1.14, 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of
Professional Conduct.
If the court declines to permit withdrawal, the lawyer must continue the representation.
Rule 4-1.16(c), Rules of Professional Conduct. The lawyer may not inform the court of the false
name except when the client affirmatively lies to the court concerning his or her true name.
All of the above scenarios presuppose that there is nothing in the court file to indicate that
the client has been charged and is proceeding under a false name. If the client has been charged
as a "John Doe" or "Jane Doe" and clearly is openly refusing to disclose his or her identity, there
is no misrepresentation to the court and the above rules are not applicable. See Rule 4-3.4(c).
Under this circumstance, the lawyer need not specifically disclose to the court that the client is
proceeding under a false name. Rule 4-3.3, Rules of Professional Conduct. Additionally, if the
court file clearly indicates that the client is known by multiple names, then the court is on notice
that the client may be proceeding under a false name and no remedial measures by the criminal
defense lawyer are required.

OPINION 90-1
July 15, 1990
A criminal defense counsel who learns that his or her client has left the state for the
purpose of avoiding a court appearance may not, under most circumstances, divulge such
information until required by the court at the time of the scheduled appearance.
Statute:
Fla. Stat. 843.15
When an attorney tells the court his or her client has left the state with the intent to jump
bail, it puts attorney and client at cross-purposes; it makes the attorney a potential witness against
the client in a potential criminal prosecution for the separate crime of bail jumping; and it
effectively destroys the attorney-client relationship.
Avoiding interference with, or at least preserving, the Constitutionally created and
Constitutionally protected attorney-client relationship is fundamental to a correct interpretation
of what is, in this situation, ethical conduct.
For an attorney, based on anything less than verified and certain facts, to tell the court a
client is out of state for purpose of avoiding a court appearance, would violate the attorney's
obligation to give that client zealous representation, would destroy the attorney-client
relationship, and would be unethical.
The crime of jumping bail is defined by Florida Statutes, Section 843.15, which says the
crime occurs when a defendant in a criminal case is on release pre-trial, or pending sentencing,
or pending appeal, and the defendant willfully fails to appear before any court or judicial officer
as required. . . . The crime occurs when the defendant is required to be before the court and,
willfully, fails to be there. By statutory definition, the offense occurs when the defendant fails to
appear in court as requirednot before then. So a distinction must be made as to counsel's
ethical obligations at the time of the required court appearance, and counsel's ethical obligations
prior to the required court appearance.
At the time of the required court appearance, when the case is called and the defendant
fails to appear, and the judge turns to counsel and asks about the defendant's whereabouts,
defense counsel owes an explanation to the court, to the extent counsel has one, and to the extent
that giving it does not violate attorney-client privilege. If the attorney is able to tell the court
where the client is, and why the client is there rather than in court, then the attorney is obliged to
tell the court those thingsbut only to the extent that the lawyer can give up that information
without violating attorney-client confidentiality. Barring other facts not present here, an
attorney's actual knowledge of where a client is located, at the present moment, is not privileged
information.
The following appears to be the proper way to handle it. Counsel may give the court such
answers as counsel has, to the extent is does not violate confidential communications between
attorney and client, and if that information is all the attorney has, then it is an easy matter to tell
the court counsel has no further information, privileged or otherwise. But if some of the
information counsel has is privileged, counsel may tell the court what information counsel has
that is not privileged, and then advise the court that counsel does have additional information but
believes it privileged and so invokes that privilege on the client's behalf leaving it up to the
court to make such further inquiry and such rulings on the extent of the privilege as it deems
necessary.
Turning now to the question of counsel's ethical obligations prior to that required court
appearance: What is criminal defense counsel's obligation when counsel first learns, in advance
of the next scheduled court appearance, that the client has fled the state already, with intent to
avoid future court appearances in the case?
On some subjectsand this is oneethics opinions are of little real guidance to
practicing attorneys unless they take into account the realities of how clients deal with lawyers
and lawyers with clients. Drawing on the experiences of lawyers on the Professional Ethics
Committee who now handle and/or have handled criminal defense cases, the following practical
observation is made. Criminal defendants when talking with their lawyers (in the attorney's
office or by telephone, and especially when clients call from out of state or out of the country)
often think out loud about skipping out, or come right out and say they plan not to show up for
court again; and yet, in a great majority of these cases, when the time comes, they do show up for
court, in spite of what they have said. One may assume they show up based at least in part on the
urgings of their lawyers in response to what they said. But, regardless the reasons why they
usually show up for court, it is a result that would not be obtained if lawyers, upon hearing
clients say they are going to skip future court appearance, were required to immediately tell the
court what their clients have just said in that regard. Such conduct by counsel would quickly
destroy the attorney-client relationship, and it would be doing so in situations that, in reality,
most often do not turn out to be a problemwhich would serve the interest of neither the clients
nor the administration of justice.
Adding to the balance the Constitutionally created and protected attorney-client
relationship, and the practicalities of how attorneys and clients deal with each other, and the
Rules Regulating the Florida Bar, the following appears to be the proper response to this part of
the inquiry.
So long as there remains any possibility that counsel may be able to effect a court
appearance by a client, in spite of the client's claims and anybody else's claims that the client will
not be going to court when required, experience teaches and ethics requires that effectuating the
client's appearance is what counsel must spend his or her energies trying to accomplish. Working
towards resolving the anticipated problem by effectuating the client's appearance, rather than
telling the court about the anticipated problem, is what is ethically required of the lawyer.
Prior to the date of the required court appearance, only when it reaches the point where
counsel knows with reasonable certainty that the client's avoidance of the court's authority is a
willful and, for all practical purposes, an irreversible factonly then would counsel be ethically
obliged to step forward and advise the Court of the situation.
As to the question of counsel's ethical obligation to advise the bail bondsman, no such
obligation is imposed by the Rules Regulating the Florida Bar. As a practical matter, however, if
there is a bail bondsman on the case, to accomplish the client's appearance in court it may be
necessary to consider calling on the client's bail bondsman for assistance.
A situation similar to the one inquired about, but which should not be confused with it, is
where the court makes it a special condition of bond that the defendant not leave the state. That
special condition of pre-trial release make the mere act of leaving the state a completed violation
of bond, whether or not the defendant intends to return in time for his or her next court
appearance. If that special condition is imposed, then a criminal defense lawyer is under
obligation to report a client is out of state, when counsel is certain the client is, in fact, out of
state in violation of that special condition, at the time of reporting. If, instead, the client advises
counsel of this violation after it is completedafter leaving the state in violation of bond and
returning againthen what the client tells counsel is privileged attorney-client communication
about past acts, which the attorney may not reveal.
The question posed and answer given also have nothing to do with any obligation a court
specifically imposes on defense counsel as a special condition of a client's release on bondas,
for example, when the court makes it a special condition that the defendant telephone his
attorney once each day and that counsel immediately advise the court if the defendant fails to
comply. (Such conditions are sometimes sought by defendants and their attorneys, to avoid
having to report instead to probation officers or court officials as a condition of bond.)

OPINION 86-3
December 15, 1986
A defense lawyer has no obligation to disclose a client's record of prior convictions in
order to prevent a court from imposing sentence on the basis of incomplete or inaccurate
information about the client's record, provided that neither the defense lawyer nor the defendant
affirmatively misrepresented to the court that there was no priors.
CPR:
DR 4-101, EC 4-4, DR 7-101(A), DR 7-102
Opinion:
75-19
Case:
Meehan v. State, 397 So. 2d 1214 (Fla. 2d DCA 1981)
Numerous defense attorneys have requested an advisory opinion concerning their

obligation to disclose, or not to disclose, before a client is sentenced for a criminal offense, that
the client has a record of prior convictions. The question usually arises in DUI cases. It appears
that prosecutors sometimes do not discover the defendant's out-of-state prior convictions. The
defense attorney knows of the priors either because the client volunteered the information or
because the attorney independently discovered the priors in the course of the representation.
Repeat DUI offenders are sentenced more harshly than first-time offenders.
Defense counsel's information about the client's prior convictions, volunteered by the
client or independently discovered by the attorney in the course of the representation, is either a
confidence or a secret of the client within the meaning of DR 4-101. DR 4-101(A) defines
confidence as information protected by the attorney-client privilege under applicable law.
Secrets are defined as other information gained in the professional relationship that the client
has requested be held inviolate or the disclosure of which would be embarrassing or would be
likely to be detrimental to the client. EC 4-4 explains that an attorney's ethical obligation to
guard the confidences and secrets of a client exists without regard to the nature or source of
information or the fact that others share the knowledge.
With certain limited exceptions, DR 4-101 forbids an attorney to reveal confidences or
secrets except with the consent of the client. The exception that may be applicable to information
about prior convictions is DR 4-101(C)(2), which permits a lawyer to reveal confidences or
secrets when permitted under disciplinary rules.
An attorney's conduct in judicial proceedings is governed by Canon 7 of the Code of
Professional Responsibility. DR 7-101(A) forbids an attorney to intentionally:
(3) Prejudice or damage his client during the course of the professional
relationship, except as required under DR 7-102(B).
DR 7-102 provides in pertinent part:
(A) In his representation of a client, a lawyer shall not:

(3) Conceal or knowingly fail to disclose that which he is required by law to
reveal;
(4) Knowingly use perjured testimony or false evidence;
(5) Knowingly make a false statement of fact; . . .
(B) A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud
upon a person or tribunal shall promptly call upon his client to reveal the same,
and if his client refuses or is unable to do so, he shall reveal the fraud to the
affected person or tribunal.
With reference to DR 7-102(A)(3), the Committee is unaware of any law that places an
affirmative obligation upon criminal defense counsel to disclose his client's criminal record.
Under DR 7-102(A)(4), a lawyer should not permit his client to falsely state to the court that the
client has no prior convictions. Under DR 7-102(A)(5), a lawyer could not himself falsely state
to the court that the client had no priors. DR 7-102(B)(1), in conjunction with DR 4-101(C)(2),
would require a lawyer whose client had falsely stated to the court that there were no priors to
call upon his client to rectify such fraud on the court and to do so himself if the client refused.
Opinion 75-19.
On the basis of the disciplinary rules and the ethical obligations discussed above, the
Committee reaches the following conclusions: (1) When it appears to the lawyer that the court is
about to impose sentence based on incomplete or inaccurate information as to the defendant's
record of prior convictions, the lawyer has no duty to correct that information, provided that the
lawyer or the client had not affirmatively misrepresented to the court that there were no priors.
(2) If asked directly by the court whether the client has any prior convictions, the attorney must
protect his client's constitutional guarantees. See, e.g., Meehan v. State, 397 So. 2d 1214 (Fla. 2d
DCA 1981).

OPINION 82-3
May 20, 1982
An attorney who learns that his former client has committed a fraud upon a person or
tribunal during the attorney's representation may reveal the fraud to the court only if the client's
fraud is clearly established under the guidelines of DR 7-102(B).
CPR:
DR 4-101, DR 7-102, EC 8-5
Opinion:
75-19
Chairman Ervin stated the opinion of the committee:

A Florida attorney inquires whether he has received information clearly establishing that
his former client has committed a fraud upon a person or tribunal during the attorney's
representation, so as to give rise to a duty of the attorney to take further action pursuant to DR 7102(B), Florida Code of Professional Responsibility.
The attorney recites that during the course of his representation of two clients, he
prepared for execution by one client, and by an employee-witness, affidavits reciting the facts
and date of resignation of the client as a director and officer of a corporation. As a part of
pending proceedings, the other client, a relative of first client, testified at deposition as to fact
and date of resignation. The affidavits were submitted to the court during pretrial proceedings.
The fact of resignation and time of same were of significant importance to the ongoing litigation.
The attorney has, with approval of the court, withdrawn from representation of the
clients. He recites his present doubt as to the truthfulness of the prior affidavits and depositions
based upon undescribed credibility problems he experienced with the clients prior to
withdrawal, together with the fact that the client signed one written communication to the lawyer
in a form indicating corporate officer status long after the purported date of resignation, and later
fabricated and attempted to persuade the attorney to accept a backdated, substitute written
communication not so indicating.
The attorney recites that his two former clients and the employee-witness have steadfastly
maintained that the affidavits and depositions are true.
Since the information which has caused the attorney's doubt was secured from the client
during the course of representation, DR 4-101 of the Florida Code must be first considered. That
rule provides, in pertinent part, that:
DR 4-101 Preservation of Confidences and Secrets of a Client.
(A) Confidence refers to information protected by the attorney-client
privilege under applicable law, and secret refers to other information gained in
the professional relationship that the client has requested be held inviolate or the
disclosure of which would be embarrassing or would be likely to be detrimental to

the client.
(B) Except when permitted under DR 4-101(C) and (D), a lawyer shall not
knowingly:
(1) Reveal a confidence or secret of his client.
*
(C) A lawyer may reveal:
(2) Confidences or secrets when permitted under disciplinary rules.

*
(D) A lawyer shall reveal:

(1) Confidences or secrets when required by law provided that a lawyer
required by a tribunal to make such a disclosure may first avail himself of all
appellate remedies available to him.
(2) The intention of his client to commit a crime and the information
necessary to prevent the crime.
*
(Emphasis supplied.)
The information possessed by the inquiring attorney was gained in the professional
relationship and its disclosure would be embarrassing or detrimental to the client, so it is clearly
a secret, and may be a confidence as well, under the terms of DR 4-101(A). Under the terms
of subsection (B), the information may not be disclosed by the attorney unless disclosure is
authorized, or required, by one of the exceptions set forth in subsections (C) or (D).
Subsection (D) would appear inapplicable in that no law has been cited compelling an
attorney to disclose past untruthfulness of his client; no tribunal seeks to compel disclosure; and
an attorney is not required under subsection (2) to reveal a completed crime (i.e., perjury) by his
client. It is noted that DR 4-101(D)(2) of the Florida Code is substantially broader than the
corresponding American Bar Association provision in requiring an attorney to disclose his
client's intention to commit any crime. The Florida provision is, however, prospective in
operation and applies only to intended, but not yet committed, crimes of a client.
Subsection (C) of DR 4-101 requires further analysis. That provision authorizes an
attorney to reveal confidences or secrets of a client when permitted under disciplinary rules.
This provision, in turn, makes pertinent DR 7-102(B) of the Florida Code, which provides:
DR 7-102 Representing a Client Within the Bounds of the Law.

*
(B) A lawyer who receives information clearly establishing that:

(1) His client has, in the course of the representation, perpetrated a fraud
upon a person or tribunal shall promptly call upon his client to rectify the same,
and if his client refuses or is unable to do so, he shall reveal the fraud to the
affected person or tribunal.
(2) A person other than his client has perpetrated a fraud upon a tribunal shall
promptly reveal the fraud to the tribunal.
The above-quoted provision was considered at length in prior Advisory Opinion 75-19
wherein it was noted that the corresponding provision of the American Bar Association Code had
been amended to except from the duty of disclosure information protected as privileged
communication.
Guided by the absence of such an exception in the Florida Code, in Advisory Opinion 7519 this Committee expressed its opinion that an attorney, upon learning from his client that the
client had deliberately lied at a deposition, was required to withdraw from the representation and
to reveal the fraud to the court if the client refused to rectify the false testimony.
A contrary conclusion as to duty of disclosure is at least arguably suggested by EC 8-5 of
the Florida Code, which provides as follows:
EC 8-5 Fraudulent, deceptive, or otherwise illegal conduct by a participant in a
proceeding before a tribunal or legislative body is inconsistent with fair
administration of justice, and it should never be participated in or condoned by
lawyers. Unless constrained by his obligation to preserve the confidences and
secrets of his client, a lawyer should reveal to appropriate authorities any
knowledge he may have of such improper conduct.
The Committee is of the opinion, however, that there is no real conflict or inconsistency
between DR 7-102(B) and EC 8-5. Where the circumstances required by DR 7-102(B) are
present, the attorney is not constrained by an obligation to preserve the confidences or secrets of
his client (as to the fraud) and disclosure must be made. This is, of course, consistent with the
aspirational guideline of EC 8-5.
On the other hand, where the requirements of DR 7-102(B) are not met, then pursuant to
DR 4-101(B), the attorney is so constrained and should not make disclosure. This circumstance
is excepted from the aspirational guideline of EC 8-5. Properly viewed, EC 8-5 is merely
reflective of the commands of DR 4-101(B) and exceptions recognized in that subsection.
The Committee, therefore, adheres to its prior Advisory Opinion 75-19, to the effect that
under the circumstances described in DR 7-102(B) of the Florida Code, an attorney is required to
disclose even confidences or secrets of his client. The Supreme Court of Florida, in adopting the
Florida Code in its present form, has recognized and mandated this limited exception to the
ordinary attorney-client relationship in order to preserve the integrity of the system of
administration of justice.
The exception is, however, limited by its own terms. DR 7-102(B) requires disclosure
only where the attorney:
. . . receives information clearly establishing that:
(1) his client has, in the course of the representation, perpetrated a fraud upon
a person or tribunal. . . .
Thus, the Supreme Court has commanded that the confidentiality of the attorney-client
relationship will be sacrificed only where the client's fraud is clearly established to have occurred
during the representation.
In prior Advisory Opinion 75-19 the client had expressly confirmed to the attorney that
he (the client) knew the true facts and had deliberately lied under oath to conceal his assets.
Thus, the attorney possessed more than adequate information clearly establishing the client's
fraud on the tribunal during the lawyer's representation and disclosure was required.
No such definitive factual situation is presented in this inquiry, in that: (1) The inquiring
attorney's former clients, and a third party, steadfastly maintain that the prior statements
regarding corporate resignation were true; (2) the form of signature indicating to the contrary
could conceivably have been simple mistake; (3) the attempt to substitute communications to the
attorney could have been intended to correct a potentially embarrassing mistake rather than
conceal evidence of perjury; and (4) the inquiry is based in part on undescribed credibility
problems experienced between the clients and inquiring attorney during the representation.
Under such circumstances, this Committee is of the opinion that it can provide guidance
only in the form of emphasizing that under DR 7-102(B) the test or standard is that the
information possessed must clearly establish fraud on the tribunal. The Committee is not a
fact-finding body, nor is it able to glean from limited correspondence, and then weigh, all the
subjective factors and factual considerations which would enter into the determination of
whether fraud is clearly established.
The responsibility for this factual determination must remain with the inquiring lawyer.
The foregoing is the opinion of a majority of the Professional Ethics Committee and is
hereby adopted as the Committee's proposed advisory opinion. One member of the Committee
would agree with the clear establishment test as set forth above, but would apply a continuing
wrong principle if the subject litigation was not concluded. One member of the Committee is of
the opinion that the facts as presented fall short of clearly establishing fraud on a tribunal, and
that the Committee's opinion should proscribe disclosure.

OPINION 75-19
March 15, 1977
An attorney who learns from his client that the client deliberately lied at a deposition
must withdraw from the representation and must reveal the fraud to the court if the client refuses
to rectify it.
Note: This opinion was affirmed by the Professional Ethics Committee at its meeting on June
18, 1998. The Committee affirmed that a material misrepresentation during a deposition,
regardless of whether the deposition has been filed with the court, requires that the attorney take
remedial measures under Rule 4-3.3.
CPR:
EC 7-6, EC 7-26; DR 4-101(B),(C) and (D), DR 7-102(B)(1) [DR 7-102(B)(1)

superseded by Rule 4-3.3]
Opinions:
ABA Formal 268, 274. 341; ABA Informal 1314, 1318
Case:
McKissick v. United States, 379 F.2d 754 (5th Cir. 1967)
Misc.:
Drinker, Legal Ethics, p. 141

Vice Chairman Lehan stated the opinion of the committee:
A lawyer inquires as to whether he has a duty to disclose perjury committed by his client
in a divorce proceeding deposition wherein the client lied as to certain assets. The lawyer was
aware of the true facts during the deposition but was not aware that the client had deliberately
lied until after the deposition when the lawyer, in private conversation with the client, asked
whether the client knew the true facts and the client responded that he did and that he had
deliberately lied to conceal assets. In the inquiry, the lawyer recognizes his duty to withdraw
from the employment, and the Committee unanimously agrees.
DR 7-102(B)(1) provides that A lawyer who receives information clearly establishing
that . . . his client has, in the course of the representation, perpetrated a fraud upon a person or
tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is
unable to do so, he shall reveal the fraud to the affected person or tribunal. The majority of the
Committee feels that a fraud has been perpetrated upon the court and the opposing party by such
perjury in a deposition and that further fraud would be perpetrated by permitting use in litigation
of a perjured deposition, such as the one referred to in the inquiry, or by later testimony in like
fashion before the court if the deposition itself should not be used in evidence.
The inquiry is silent as to whether the lawyer, upon learning of the perjury, specifically
called upon the client to rectify same. Certainly the lawyer has a duty to do so. For the purpose
of this opinion the Committee finds implicit in the inquiry the facts that the lawyer did so call
upon the client and that the client refused to rectify the perjury.
DR 7-102(B)(1) does not specifically refer to information received from the lawyer's
client; however, neither does it purport to limit in any way the sources from which information
of the type described may be received. Therefore the Committee majority feels that that
provision of the CPR is inclusive of information from clients. By referring to the requirement
that the lawyer call upon the client to rectify the fraud and, if the client refuses, the lawyer shall
reveal the fraud to the court, the provision may contemplate implicitly that such revelation to the
court will necessarily involve the client as a source of at least part of such information.
Under Canon 4, relating to confidences of a client, DR 4-101(D)(2) provides that A
lawyer shall reveal . . . the intention of his client to commit a crime and the information
necessary to prevent the crime. Although under the circumstances indicated in the inquiry the
perjury had already been committed when the lawyer ascertained positively that the client had
deliberately lied, the inquiry would seem to involve either further use of the deposition, which
would involve at least furtherance of the crime, or, if the client were to testify in court,
information concerning the intention of the client to perjure himself before the court. Therefore,
4-101(D)(2) would appear applicable. See also McKissick v. United States, 379 F. 2d 754, 761
(5th Cir. 1967), saying that perjury is a continuing offense so long as allowed to remain in the
record to influence the outcome.
Other provisions of Canon 4 are relevant. DR 4-101(B) provides that a lawyer shall not
reveal confidences of his client except when permitted under DR 4-101(C) and (D). Under 4101(C), a lawyer may reveal . . . confidences or secrets when permitted under disciplinary
rules.
EC 7-26 provides that The law and disciplinary rules prohibit the use of fraudulent,
false, or perjured testimony or evidence, and EC 7-6 states that a lawyer may not do anything
furthering the creation or preservation of false evidence.
In short, the Committee majority feels that the attorney-client privilege is not to be
preserved at all costs, or at the cost of the principles represented by DR 7-102(B); that the Code
of Professional Responsibility has specific application to the present inquiry; and that the
attorney must disclose the fraud to the court. It may be that in most such situations the lawyer's
action in calling upon the client to rectify the fraud would dispose of the problem so that the
lawyer need not himself make disclosure to the court.
In McKissick v. United States, 379 F. 2d 754, 761, 762 (5th Cir. 1967), which involved a
lawyer's report to the court of a client's admission to the lawyer of perjury, the Fifth Circuit took
the strong position that the lawyer fulfilled his duty in so reporting to the court and that if he had
not done so, he would have been subject to discipline. In a footnote the Fifth Circuit said:
Drinker, Legal Ethics 141 (1953): A lawyer learning of fraud practiced
by his client on a court * * * which the client declines to disclose must inform the
injured parties, and withdraw from the case, despite Canon 37 [of the Canons of
Professional Ethics of the American Bar Association, this Canon covering the
lawyer's duty to preserve his client's confidence]. See also Canon 29 which
provides in part: The counsel upon the trial of cause in which perjury has been
committed owe it to the profession and to the public to bring the matter to the
knowledge of the prosecuting authorities. We feel this duty may be equally

discharged by disclosure to the court itself. Disciplinary measures have been
successfully taken against attorneys who have continued with a civil case
knowing that their clients had presented perjured testimony . . . In re King, 7 Utah
2d 258, 322 P. 2d 1095 (1958) the court commented, We cannot permit a
member of the bar to exonerate himself from failure to disclose known perjury by
a * * * statement * * * he had a duty of nondisclosure so as to protect his client
which is paramount to his duty to disclose the same to the court, of which he is an
officer, and to which he in fact, owes a primary duty under circumstances such as
are evidenced in this case. 322 P. 2d at 1097. But compare Gold, Split Loyalty:
An Ethical Problem for the Criminal Defense Lawyer, 14 Clev.-Mar. L. Rev. 65,
69-70(1965).
379 F. 2d at p. 761, N.2.
This Committee opinion has reference only to such crime and type of fraud committed by
the client in the course of the lawyer's representation of the client.
The Committee recognizes that the current ABA version of the Code of Professional
Responsibility includes amendment of DR 7-102(B) to specifically provide for the conflict under
these circumstances between a lawyer's duty to the court and his duty to his client. That ABA
version differs from the Florida CPR in having, by such amendment, added the following proviso
to DR 7-102(B): except when the information is protected as privileged communication. See
ABA Formal Opinion 341 and ABA Informal Opinions 1314 and 1318. Whether the Florida
Code of Professional Responsibility should also be so amended would be a matter for the
consideration of the Supreme Court of Florida.
Two members of the Committee feel that disclosure of some type by the lawyer is
necessary but that the lawyer should simply advise the Court that use of the deposition in favor
of the client would, for reasons which the lawyer cannot disclose, constitute a fraud upon the
court.
A substantial minority of the Committee feels that the protection of the confidences of a
client is of paramount importance; that Canon 4 specifically concerns protection of confidential
information received from a client whereas Canon 7 does not specifically relate to information
from the client; that under the inquiry the perjury had already been committed, therefore DR 4101(D)(2) does not apply; and that the attorney should resign from the employment and take no
further action. See ABA Formal Opinion 268 and ABA Formal Opinion 274, both written under
the Canons of Professional Ethics. Opinion 268 states: While ordinarily it is the duty of a
lawyer, as an officer of the court, to disclose to the court any fraud that he believes is being
practiced on the court, this duty does not transcend that to preserve the client's confidences.
Also, the Committee minority feels that the exception added to the ABA version of DR 7-102(B)
should be found implicit in Florida DR 7-102(B) and that, in any event, the Florida Supreme
Court should be asked to so amend the Florida Code of Professional Responsibility for the
reasons stated in ABA Formal Opinion 341.
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RULE 4-4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

4 RULES OF PROFESSIONAL CONDUCT
4-4 TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
RULE 4-4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by rule 4-1.6.
Comment
Misrepresentation
A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an
opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person
that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are
the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for
misrepresentations by a lawyer other than in the course of representing a client, see rule 4-8.4.
Statements of fact
This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the
circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as
statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an
acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where
nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid
criminal and tortious misrepresentation.
Crime or fraud by client
Under rule 4-1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or
fraudulent. Subdivision (b) states a specific application of the principle set forth in rule 4-1.2(d) and addresses the situation where a
client's crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or fraud
by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and
to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose
information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. If the lawyer can avoid
assisting a client's crime or fraud only by disclosing this information, then under subdivision (b) the lawyer is required to do so,
unless the disclosure is prohibited by rule 4-1.6.
[Revised: 05/22/2006]
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RULE 4-5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

4 RULES OF PROFESSIONAL CONDUCT
4-5 LAW FIRMS AND ASSOCIATIONS
RULE 4-5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

(a) Duties Concerning Adherence to Rules of Professional Conduct. A partner in a law firm, and a lawyer who individually or
together with other lawyers possesses comparable managerial authority in a law firm, shall 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.
(b) Supervisory Lawyer's Duties. Any lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) Responsibility for Rules Violations. 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; or
(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.
Comment
Subdivision (a) applies to lawyers who have managerial authority over the professional work of a firm. See terminology. This
includes members of a partnership, the shareholders in a law firm organized as a professional corporation, and members of other
associations authorized to practice law; lawyers having comparable managerial authority in a legal services organization or a law
department of an enterprise or government agency, and lawyers who have intermediate managerial responsibilities in a firm.
Subdivision (b) applies to lawyers who have supervisory authority over the work of other lawyers in a firm.
Subdivision (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and
procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct.
Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must
be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised.
Other measures that may be required to fulfill the responsibility prescribed in subdivision (a) can depend on the firm's structure and
the nature of its practice. In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the
required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise,
more elaborate measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make
confidential referral of ethical problems directly to a designated supervising lawyer or special committee. See rule 4-5.2. Firms,
whether large or small, may also rely on continuing legal education in professional ethics. In any event the ethical atmosphere of a
firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will
inevitably conform to the rules.
Subdivision (c) expresses a general principle of personal responsibility for acts of another. See also rule 4-8.4(a).
10/11/2016 5:29 AM
Subdivision (c)(2) defines the duty of a partner or other lawyer having comparable managerial authority in a law firm, as well as a
lawyer having supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has such
supervisory authority in particular circumstances is a question of fact. Partners and lawyers with comparable authority have at least
indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also
has supervisory responsibility for the work of other firm 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 avoidable consequences of misconduct if the supervisor knows that the misconduct occurred.
Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as
well as the subordinate has a duty to correct the resulting misapprehension.
Professional misconduct by a lawyer under supervision could reveal a violation of subdivision (b) on the part of the supervisory
lawyer even though it does not entail a violation of subdivision (c) because there was no direction, ratification, or knowledge of the
violation.
Apart from this rule and rule 4-8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, shareholder,
member of a limited liability company, officer, director, manager, associate, or subordinate. Whether a lawyer may be liable civilly
or criminally for another lawyer's conduct is a question of law beyond the scope of these rules.
The duties imposed by this rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to
abide by the Rules of Professional Conduct. See rule 4-5.2(a).
[Revised: 05/22/2006]
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The Florida Bar RFA 17-4289 Steven Eleazer Lake

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October 12, 2016

John F. Harkness, Jr., Executive Director

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October 12, 2016

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October 12, 2016

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