Florida Bar News – Proposal Addresses Expunged or Sealed Criminal Records in Lawyer Discipline Cases

The Board of Governors is considering a proposed rule amendment that would make it easier to use expunged or sealed criminal records in Bar disciplinary cases.

The proposal is on the agenda for first reading when the board meets September 30 on Amelia Island. A final vote could come as early as December. The proposal would then be forwarded to the Supreme Court for final consideration.

The proposal would amend Bar Rule 3-7.2 (Procedures on Criminal or Professional Misconduct) by adding a new subdivision (i) “Use of Expunged or Sealed Records.”

The subdivision would state: “The Florida Bar may use sealed or expunged arrest or court records of a Florida Bar member in a disciplinary proceeding in the bar’s possession or obtainable by the bar regardless of the record’s expunction or sealing.”

The proposed revisions were prompted by a recent disciplinary case, according to Bar staff.

“The respondent contested the bar’s use of a conviction that had been expunged, although the bar’s records pre-dated the expunction,” according to a staff analysis. “Adding this issue in the rules will make any bar case in which the lawyer’s criminal record was expunged or sealed easier to prosecute.”

Another provision of the proposed amendment would strengthen notice requirements that apply to state prosecutors when an attorney has been charged with a felony.

The provision would add language to Subdivision (c) that would require the state attorney “whose office is assigned to the case,”  to provide a copy of the indictment or information to the Bar’s executive director “within 10 days of its entry if the state attorney is aware the defendant is a member of The Florida Bar.” The current rule requires prosecutors to provide the Bar with copies of a lawyer’s felony indictment or information, but it does not establish a time frame.

The existing rule also sets a 10-day deadline for attorneys to notify the Bar that they are facing a felony charge, and to provide the Bar with a copy of the indictment or information.

Jim Ash, Florida Bar News (2022, September 15) https://www.floridabar.org/the-florida-bar-news/proposal-addresses-expunged-or-sealed-criminal-records-in-lawyer-discipline-cases/