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July 1, 2013
Court empowers panels to address unprofessionalism

By Gary Blankenship
Senior Editor

Following up on a recommendation from its Commission on Professionalism, the Supreme Court has approved a “Code for Resolving Professionalism Complaints” that will include both The Florida Bar’s current grievance intake system and local circuit-based professionalism committees.

Justice Lewis Supreme Court Justice Fred Lewis, chair of the commission and author of the unanimous June 6 opinion for the court, said Chief Justice Ricky Polston’s office will be issuing further information for carrying out the opinion, and he expects the circuit committees to be set up over the summer.

The Commission on Professionalism voted at last year’s Bar Convention to recommend that “repeated and substantial” violations of professionalism standards should be subject to a formal review and possible sanctions.

“This represents the vote of the Supreme Court to implement that and to direct the circuit courts to create professionalism committees,” Lewis said. “They work with and . . . address misbehavior of lawyers that may be short of a violation of our [disciplinary] code but is nonetheless a violation of our standards.”

The opinion noted that the Bar has traditionally emphasized a more passive approach to professionalism, relying on articles and education to maintain and elevate conduct of lawyers.

However, “the Professionalism Commission has concluded that we continue to experience significant problems that are unacceptable, requiring further and more concrete action,” the opinion said. “Surveys of both lawyers and judges continue to consistently reflect that professionalism is one of the most significant adverse problems that negatively impact the practice of law in Florida today.”

As for determining what standards will be enforced, the court adopted the commission’s recommendation not to write a new code, but to use standards set out in the Bar’s Oath of Admission, the Creed of Professionalism, Ideals and Goals of Professionalism, The Rules Regulating The Florida Bar, and relevant Supreme Court decisions. Those are incorporated into the Code for Resolving Professionalism Complaints.

As for resolving complaints, the opinion approved the commission’s recommendation “that the mechanism for initiating, processing, and resolving professionalism complaints be the Attorney Consumer Assistance . . . Program (ACAP) created by The Florida Bar. ACAP . . . already accepts, screens, mediates, and attempts to resolve any complaints concerning professional behavior. This structure exists to receive and resolve any complaints before and in the place of the initiation of formal grievance proceedings.”

The opinion also ordered the creation of local professionalism committees in each circuit. It noted that in 1998 the court issued an administrative order instructing circuit chief judges to create and maintain a Circuit Committee on Professionalism.

“The Professionalism Commission has proposed that a local committee in each circuit be activated to receive, screen, and act upon any and all complaints of unprofessional conduct and to resolve those complaints informally, if possible, or refer to The Florida Bar if necessary,” the opinion said. “The Chief Judge of every circuit shall create a Local Professionalism Panel to receive and resolve professionalism complaints informally if possible. In the discretion of the Chief Judge, the Circuit Committee on Professionalism may be designated as the Local Professionalism Panel.”

Finally, the court adopted the Code for Resolving Professionalism Complaints, which the opinion said was the subject of a public hearing by the Professionalism Commission and was supported by county and circuit court judicial conferences “as an initial step toward improving professional conduct in Florida.”

The code, which is attached to the opinion as an exhibit, defines unprofessional conduct as “substantial or repeated violations” of standards spelled out in the admission’s oath, the Creed of Professionalism, the Ideals and Goals of Professionalism, Bar rules, and decisions of the court.

It further specifies that, “Unprofessional conduct, as defined above, in many instances will constitute a violation of one or more of the Rules of Professional Conduct. In particular, Rule 4-8.4(d) of The Rules Regulating The Florida Bar has been the basis for imposing discipline in such instances. See generally, The Florida Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010); The Florida Bar v. Abramson, 3 So. 3d 964 (Fla. 2009); and The Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001) (Rule 4-8.4(d) provides that: “A lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.”)

“This is a step beyond trying to convince people by speeches and essays – the academic approach. If that’s not going to work, this is an attempt to have a more active approach to stopping this kind of behavior,” Lewis said.

Asked about the scope of the local professionalism panels, he said, “I don’t see at this time that the time that the committees have authority to impose suspensions. Something like a censure, that would be up to the individual committees.
“That is not something that would necessarily cause due process kinds of issues. I would think, I would hope, that these committees will be able to meet with people and talk with them and convince them this behavior is not the way to go.”

At the same time, Lewis said he expects serious cases to be referred to the Bar and where conduct “prejudicial to the administration of justice” in Rule 4-8.4(d) would allow for disciplinary action.

“If these complaints to the local committees or ACAP cannot be resolved to everyone’s satisfaction, then the grievance process will be invoked to terminate this type of behavior,” Lewis said.

He said he anticipates there will be a way to track complaints and how they are resolved, and whether there is an impact on professionalism.

“The issue of professionalism takes the involvement of everyone,” the justice said. “If we turn our heads to that type of behavior, it will just continue. That’s why it’s important that not just these committees and the leadership of the Bar but the rank and file take this seriously and do something about the unprofessional behavior they complain about.

“These are issues that are fundamental to what we are as lawyers.”

The Professionalism Commission is expected to discuss the opinion at its June 27 meeting at the Bar’s Annual Convention, after this News went to press.

[Revised: 07-31-2014]