The Florida Bar v. Herman
In a Bar discipline case arising from alleged nondisclosures in the lawyer's own personal Chapter 7 bankruptcy schedules, the referee refused to consider an advice of counsel defense based on Florida Bar v. Adorno. The Supreme Court held that, where the charged misconduct is intertwined with the lawyer's obligations as a client under federal bankruptcy law (rather than with his knowledge of the Bar rules or his representation of clients), an advice of counsel defense is available to negate the required intentional dishonesty, and remanded for the referee to consider it.
Key facts
- The Florida Bar disciplined attorney Herman for alleged nondisclosures in his personal Chapter 7 bankruptcy schedules, claiming violations of Rules requiring knowing or intentional dishonesty.
- The referee rejected Herman's advice of counsel defense based on the precedent in Florida Bar v. Adorno, which generally prohibits such defenses in Bar discipline cases.
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Why it matters
This is the Supreme Court's first clear carve-out from the general rule that advice of counsel is no defense in attorney discipline cases, and it corrects a mischaracterization of St. Louis in Adorno. Defense counsel in… — full analysis with a trial
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