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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JULY TERM 2003
STATE OF FLORIDA,
false. The subject of the complaint was appellee's
former employer, attorney John Carter. The
complaint was investigated and resolved in favor
of Mr. Carter.
Thereafter, the law firm of Carter & Thomas,
L.L.P. and John E. Carter filed a complaint for
malicious prosecution, defamation, tortious
interference with a business relationship, and
injunction against appellee. The suit was
dismissed without prejudice to refile in Palm
CASE NO. 4D02-3765
Beach County. An appeal was filed, but
ultimately voluntarily dismissed.
Opinion filed January 7, 2004
Four months later, the State filed criminal
charges against appellee. In the initial stages of
Appeal from the Circuit Court for the
the proceedings, the State sought a pre-trial
Seventeenth Judicial Circuit, Broward County;
determination of whether appellee was entitled to
Ilona M. Holmes, Judge; L.T. Case No. 01-16504
dismissal pursuant to Tobkin v. Jarboe, 710 So. 2d
975 (Fla. 1998). It was the State's position that
the facts presented a prima facie case of perjury
Charles J. Crist, Jr., Attorney General,
by false statement. The State argued that
Tallahassee, and Donna L. Eng, Assistant
prosecution was entirely proper because appellee
Attorney General, West Palm Beach, for
knowingly made a false statement and asserted its
truthfulness under penalties of perjury.
Concluding that Tobkin grants absolute immunity
Carey Haughwout, Public Defender, and Allen
to citizens who file complaints against members of
J. DeWeese, Assistant Public Defender, West
the bar, the trial court granted appellee's motion to
Palm Beach, for appellee.
In Tobkin, the supreme court addressed the
issue of "what immunity, if any, is afforded an
This is an appeal by the State of Florida from an
individual who files a complaint against an attorney
order granting appellee's, Bryce L. Rutherford,
with The Florida Bar." Tobkin, 710 So. 2d at 975-
motion to dismiss. At issue is whether the trial
76. In that case, The Florida Bar investigated a
court erred in granting appellee's motion to dismiss
complaint against an attorney, found there was no
based on a finding that appellee had absolute
probable cause, and dismissed the complaint. Id.
immunity from prosecution for filing an allegedly
Thereafter, the attorney filed a civil action against
false Florida Bar complaint. We hold the trial
the complainant for defamation, but the case was
court erred, and reverse the order of dismissal.
dismissed. On appeal, this court affirmed the
dismissal based on a finding of absolute privilege
Appellee was charged by information with
under Stone v. Rosen, 348 So. 2d 387 (Fla. 3d
perjury by false declaration. It was alleged that
DCA 1977). Tobkin, 710 So. 2d at 975-76.
she knowingly signed and verified as true and
correct a Florida Bar inquiry complaint form when
she knew the contents of the complaint form were
On review, the supreme court affirmed the
perjury." The Florida Bar v. Vernell, 721 So. 2d
dismissal concluding that the following reasoning
705, 707 (Fla. 1998) (citing section 92.525, Florida
from Stone was sound:
It is not necessary that the bar complaint contain
For the sake of maintaining the high standards of
an oath administered by an official or that the
the profession and disciplining those who violate
signature be notarized. Id. at 707-08.
the Canons of Legal Ethics, one who elects to
enjoy the status and benefits as a member of the
We therefore hold that, while Tobkin provides
legal profession must give up certain rights or
an absolute immunity against retaliatory civil
causes of action which, in this instance, is the
lawsuits brought by attorneys who were the
right to file an action against a complainant who
subject of bar complaints against the complainants,
lodges an unsuccessful complaint with the
it does not go so far as to shield a complainant
Grievance Committee of The Florida Bar.
from an action by the State for abusing the
process by filing a false complaint under penalties
Tobkin, 710 So. 2d at 976 (quoting Stone, 348 So.
of perjury. To hold otherwise would render rule
2d at 389). As a result, the Tobkin court held:
3-7.3(c), Rules Regulating The Florida Bar,
meaningless. There would be no other reason for
[T]hat an individual who files a complaint
requiring the oath language if "penalties of
against an attorney and makes no public
perjury" did not mean that the complainant could
announcement of the complaint, thereby
be prosecuted for perjury for filing a false
allowing the grievance procedure to run its
natural course, is afforded absolute immunity
from a defamation action by the complained-
Accordingly, it was error for the trial court to
against attorney. However, if, after filing a
dismiss the case against appellee.
complaint, the complainant comments publicly or
outside the grievance process, then the afforded
immunity ceases to exist.
STONE and HAZOURI, JJ., concur.
Id. at 977. The court reasoned that this result
"will prevent any chilling effect on Bar complaints
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY
while at the same time adequately protect
FILED MOTION FOR REHEARING.
The State acknowledges Tobkin's applicability
in civil cases, but disputes that it controls in
criminal prosecutions where an allegedly false bar
complaint was attested to and filed "under
penalties of perjury." The Florida Bar
inquiry/complaint form used in this case states,
"[u]nder penalty of perjury, I declare the foregoing
facts are true and correct and complete." Rule
3-7.3(c), Rules Regulating The Florida Bar,
provides that "[a]ll complaints, except those
initiated by The Florida Bar, shall be in writing and
under oath." The supreme court has held that "a
signed declaration using the language contained in
rule 3-7.3(c) subjects a person to the laws of
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