
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE (Waiver of Confidentiality).
    No. 63031.
    Supreme Court of Florida.
    Oct. 20, 1983.
    William O.E. Henry, President, Lakeland, Gerald F. Richman, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, Joseph J. Reiter, Chairman, Disciplinary Procedures Committee, Miami, Stanley A. Spring, Staff Counsel, Tallahassee, and Edwin C. Cluster, Bar Counsel, Ocala, for The Florida Bar, petitioner.
   PER CURIAM.

The Board of Governors of The Florida Bar petitioned this Court to amend Florida Bar Integration Rule, article XI, Rule 11.12 to allow for a mandatory waiver of confidentiality on the part of candidates for judicial office, provided the information to be made public relates to discipline at the level of a grievance committee private reprimand or higher. Notice of this proposed amendment was published in The Florida Bar News and the Court received no adverse comments from interested parties.

The amendment proposed by the Board of Governors was as follows:

(l)(e) When a member of The Florida Bar becomes a candidate for judicial office it shall be deemed that the member has requested under Rule 11.12(l)(a) that all matters described in this rule be made public information; provided the material relates to the administration of discipline to the member at the level of a grievance committee private reprimand or higher.

We declined to accept the amendment as proposed; instead, we adopted a substitute version of the amendment:

(7) When a member of The Florida Bar becomes a candidate for judicial office that member may make public the fact of and circumstances surrounding the administration of discipline at the level of a grievance committee private reprimand or higher provided, however, such disclosure does not affect the right to confidentiality, under these rules, of any other member of The Florida Bar.

We invited further comment from interested parties. The Florida Bar answered by proposing modifications to the Court-proposed rule as follows (language added by the Bar is underscored, language deleted by the Bar is struck through):

(7) Any When--a member of The Florida Bar becomes a candidate for judicial office that member may make public the fact of and circumstances surrounding the administration of discipline at the level of a grievance committee private reprimand or higher provided, however, such disclosure does not affect the right to confidentiality, under these rules, of any other member of The Florida Bar. The Florida Bar may disclose information necessary to correct a false statement by a member of The Florida Bar as to prior discipline at the level of a grievance committee private reprimand or higher.

In our original opinion, we focused on the process by which candidates for judicial office were screened and the difficulties attorney-candidates face when confronted with direct questions about disciplinary records. Chief Justice Alderman, concurring in part and dissenting in part with the majority opinion, noted that the difficulty was not limited to candidates for judicial office but could arise whenever an attorney sought public office. The proposed amendments to the rule take the waiver of confidentiality out of the candidacy context entirely and grant an absolute right to Bar members to waive confidentiality, subject only to the rights to confidentiality of any other member of the Bar. Additionally, any misrepresentation by an attorney would allow The Florida Bar to reveal information necessary to correct the false statement.

We are persuaded to accept the Bar’s proposed amendments because they leave the choice of waiver of confidentiality up to the attorney in all situations. Faced with a direct question regarding past discipline he can no longer refuse to answer on the ground that Bar rules prohibit it. He must affirmatively claim the right to retain the confidentiality of the rule and may thus be vulnerable to charges that he has something to hide or lacks frankness in his dealings with the public. Each candidate must weigh the potential cost as part of his decision to waive or to claim confidentiality.

We adopt the amendments to the rule as proposed by the Bar, with one minor addition. In order to make doubly clear that the only disciplinary actions an attorney may make public are his own, we add the phrase “to that member” following the words “administration of discipline.” Thus, we adopt the following amendment to Florida Bar Integration Rule, article XI, Rule 11.12:

Any member of The Florida Bar may make public the fact of and circumstances surrounding the administration of discipline to that member at the level of a grievance committee private reprimand or higher provided, however, such disclosure does not affect the right of confidentiality, under these rules, of any other member of The Florida Bar. The Florida Bar may disclose information necessary to correct a false statement by a member of The Florida Bar as to a prior discipline at the level of a grievance committee private reprimand or higher.

This rule is effective as of December 1, 1983.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD and SHAW, JJ., concur.

EHRLICH, J., dissents with an opinion, in which ADKINS and BOYD, JJ., concur.

EHRLICH, Justice,

dissenting.

The majority opinion adopting these proposed amendments silently but effectively destroys the private reprimand in our scheme of Bar discipline.

The private reprimand is the Bar’s mildest discipline, one which in no way reflects on the disciplined member’s overall integrity or continued fitness to practice law. Bearing in mind that the legal profession is bound by a code of ethics which proscribes practices which in the lay community may be not only accepted but favored business practices, an attorney may receive a private reprimand for behavior which in any other setting would be innocuous. The private reprimand has served the purpose of warning the heedless attorney that even minor departures from the strict demands of the Code of Professional Responsibility will be censured by the profession without impairing his reputation or effectiveness in the profession or in the community at large.

[I]t is often the case that the misconduct demands discipline of no greater magnitude than private reprimand. As a primary objective of such a minor penalty is the rehabilitation of the lawyer ... confidentiality may be considered essential to ensure that rehabilitative efforts are not thwarted by disclosures which may be prejudicial.

McLaughlin v. Philadelphia Newspapers, Inc., 465 Pa. 104, 114-15, 348 A.2d 376, 381 (1975) (footnotes omitted).

The majority contends that the “choice of waiver of confidentiality” is in the hands of the attorney, but a realistic assessment of the situation indicates this is at best a Hob-son’s choice. The attorney confronted by a direct question as to his disciplinary record must either waive confidentiality and reveal all the circumstances of the discipline or claim the right to retain confidentiality and leave the fertile public imagination to speculate about the nature of the infraction which he refuses to disclose. Human nature tends to believe that that which is concealed must always be worse than that which is revealed. Thus, the attorney who has been privately reprimanded and chooses to retain that privacy risks invidious comparison to one who has waived confidentiality. Clearly, the attorney can only lose by claiming confidentiality.

Comparisons of the relative enormity of undisclosed infractions is difficult, and when all attorneys are bound, under all circumstances, to maintain the confidentiality of Bar proceedings not made public, all attorneys faced the public on equal footing. Such can no longer be the case.

I was persuaded to accept the Court-proposed rule allowing waiver of confidentiality by candidates for judicial office because of the nature of that office. A judge should be the exemplar of his profession. In administering justice’ to others he must faithfully adhere to the spirit as well as the letter of the law. His record for abiding by the ethical standards of the profession is of great significance to lawyers who will look to him for guidance as well as to the public at large which will rely on him for justice. Even the kinds of minor misconduct which merit no more than a private reprimand may illuminate a candidate’s fitness to serve on the bench, where both candidates have been measured by the same standards of conduct. In other elections, against opponents who may not be held to so rigorous a standard of professional conduct, revelation of private reprimands for professional misconduct may be unduly harmful. More disturbing, knowledge that private reprimands will no longer be private in any practical sense may dissuade otherwise well-qualified and public-spirited attorneys from seeking public office.

The Bar originally sought a limited exception which preserved confidentiality in all other instances. The rule as adopted by the majority forces upon the attorney the same no-choice choice in all instances— client contacts, civic and professional associations, social gatherings — at which curiosity leads someone to inquire into an attorney’s disciplinary record. The exception has swallowed the rule, and I am saddened by the demise of a useful educational and rehabilitative tool which served the profession well and harmed the public not at all.

I dissent.

ADKINS and BOYD, JJ., concur.  