Court hears arguments on proposal for automatic discipline for frivolous appeals.

Supreme Court justices questioned details about a member-petition proposed rule amendment to automatically discipline a lawyer if an appellate court found he or she pursued a frivolous action, but justices also queried Florida Bar representatives on whether the grievance process could be improved for such cases.

In a May 8 oral argument, Thomas and Diane Wells of Coral Gables pushed for the amendment they and 57 other lawyers directly requested of the court. Board of Governors members Ron Ponzoli and Bruce Robinson, past and current chairs respectively of the Disciplinary Procedure Committee, argued against the amendment, which was unanimously opposed by the board.

The proposal would amend Bar Rule 3-4.3, which addresses misconduct or minor misconduct, by adding a section on frivolous actions. That would provide if any Florida or federal appellate court determined that a court action violated F.S. [section]57.105, Florida Appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that "constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1."

Among other changes, Bar members would be required to report to the Bar an appellate court finding within 10 days, under the new rule. Language also noted that if there were no aggravating circumstances, lawyers could be referred to a diversion program, which would not leave a permanent disciplinary record.

While the justices closely questioned Wells on whether the rule was needed or overbroad, they questioned Ponzoli and Robinson on what objections the Bar could have to cracking down on frivolous court actions or improving the grievance process.

While Ponzoli argued that the rule would remove all discretion from grievance committee in such cases and any discretion from referees except for recommending a punishment, Justice Ricky Polston said, "The problem is there is frustration with the grievance committee's blowing past these findings and rulings by the courts. Frankly I share their concerns.... I know instances where grievance committees have blown past this court's rulings. That causes me concern.

"Maybe I don't particularly agree with the outcome of what they're going to propose, but I think the underlying problem is something that has to be addressed."

At another point, Justice Charles Canady asked if courts are regularly finding lawyers engaging in frivolous actions but rarely...