CONFIDENTIALITY OF BAR INVESTIGATIONS
One of the most troubling aspects of bar investigations is the perceived reputational damage to the lawyer/respondent who is the subject of the investigation. Generally speaking, disciplinary matters pending at the initial investigatory and grievance committee levels are treated as confidential by The Florida Bar. Despite that general level of confidentiality, neither the complainant nor respondent is required to maintain the confidentiality of a disciplinary investigation. Thus, there is nothing to preclude a disgruntled client, for instance, from publicizing the fact it has filed a bar complaint or from disclosing any documents or correspondence exchanged during the investigatory process.
The Rules Regulating The Florida Bar also impose obligations on attorneys to provide notice to certain individuals that a disciplinary investigation has been opened. Specifically, Rule 3-7.1(f) requires that the respondent disclose to the respondent’s current law firm, and if different, the respondent’s firm at the time of the events giving rise to the complaint, that a complaint has been filed and the nature of the allegations described in the complaint. The notice must be furnished within fifteen (15) days of the date notice is provided to the respondent that a disciplinary file has been opened. Practically speaking, this means that unless the respondent is/was a sole practitioner both at the time the initial complaint was filed and at the time of the events giving rise to the investigation, it is not possible to keep the existence of a disciplinary investigation entirely confidential.
Counsel should also be mindful that if the origin of the Bar’s investigation is a judicial referral, the Bar has special rules to ensure that the referring judge is kept apprised of the status of the Bar’s investigation. Specifically, the referring judge should (i) be provided a copy of the respondent’s replies to Bar counsel’s inquiries; (ii) be informed if the matter is assigned to a grievance committee; (iii) be informed if the matter is closed by the grievance committee and the reasons the file was closed; (iv) be furnished with a copy of all pleadings filed at the referee level; (v) be furnished with a copy of the referee’s report; and (vi) be advised as to what action, if any, will be taken by the Bar on appeal. Also, regardless of whether a judge referred a matter to the Bar for investigation, any judge of a “court of record,” upon inquiry of the judge, may be advised of the status of a disciplinary case and be provided with a copy of the documents that would otherwise be considered “public record” if the investigation were not deemed confidential.
The Bar’s confidential treatment of disciplinary matters at the initial investigatory and grievance committee levels ends once a probable cause determination has been entered that a disciplinary violation has occurred. There are also certain types of disciplinary proceedings for which no confidentiality applies at any stage, such as petitions for an emergency suspension or petitions for a disciplinary revocation. Lastly, counsel should keep in mind that even if a disciplinary investigation terminates with a finding of no probable cause, the matter becomes public at that point. Once the matter becomes public, the “public record” portion of the file as that term is defined in Rule 3-7.1(b) of the Rules Regulating The Florida Bar, is publicly available for a period of one year.
In sum, while bar investigations are confidential prior to a finding of probable cause, it is not possible to entirely shield the fact that a bar complaint has been filed even where it is ultimately determined the respondent did not violate any disciplinary rule.
 Commenting outside the formal disciplinary process is not without risk. In Tobkin v. Jarboe, 710 So. 2d 975, 977 (Fla. 1998), the Florida Supreme Court held that “an individual who files a complaint against an attorney and makes no public announcement of the complaint, thereby allowing the grievance procedure to run its natural course, is afforded absolute immunity from a defamation action by the complained-about attorney. However, if, after filing a complaint, the complainant comments publicly or outside the grievance process, then the afforded immunity ceases to exist.”