The Florida Bar News - February 1, 2012

Lawyer regulation under review
‘This effort is intended to engage in essentially a self-audit’

By Mark D. Killian
Managing Editor

Lawyer regulation is the Bar’s most important function, “and the trust the public has for us as a profession starts with this responsibility.”

Scott Hawkins With that, Bar President Scott Hawkins kicked off a daylong meeting of the Bar’s Commission on Review of the Discipline System (dubbed the Hawkins Commission) at the Florida A&M University College of Law January 9 in Orlando.

“The unexamined life is not worth living; well, we are going to examine this part of our life as a profession,” said Hawkins, noting the review is timely, considering the rapid growth in Bar membership and new challenges faced by the grievance system, including recent high-profile instances of lawyer misconduct.

Created this past May, the Hawkins Commission’s goal is to make sure the Bar is fully responsive and vigilant in regulating its nearly 100,000 members. The commission has been broken down into three subcommittees, which have been meeting regularly via conference calls.

Group One focuses on the standards for imposing lawyer sanctions, alternatives to discipline, and problems related to aging attorneys.

Group Two examines the Bar’s Attorney Consumer Assistance Program, which handles intake and mediation for the grievance program and how complaints against lawyers made by judges are processed, and frivolous or retaliatory complaints.

Group Three looks at complex discipline cases and cases involving widespread impacts, such as mortgage foreclosure irregularities or when one lawyer’s bad actions affect numerous clients. The subcommittee also is examining communication with the public and Bar about the grievance program.

Pictured from the left are Justice James Perry, Bar President-elect Gwynne Young, Justice Peggy Quince, Justice Barbara Pariente, Florida A&M Law Dean LeRoy Pernell, Hawkins, and President-elect Designate Gene Pettis at the Hawkins Commission meeting. “We are a regulatory body,” Hawkins told the commission, the first time it has met as a whole. “Perhaps our most important function is to self-regulate; and it is a privilege we have to self-regulate, and it is a responsibility we have to do as well as we can, and that is what this effort is about.”

In appointing the commission, Hawkins said he was careful to include a wide mix of public and private sector lawyers and worked to ensure diversity in race, gender, practice area, geographic location, and firm size. The panel also includes retired judges and lay members.

“This effort is intended to engage in essentially a self-audit with people who are inside and outside of Bar leadership in the hopes a very balanced group will come together and have a long-term view to what we are doing.”

Hawkins said the current review is not intended to be an omnibus examination of the disciplinary system — as was conducted in the early 2000s by the Coxe Commission ­— but to focus on discrete issues.

“I want the Bar to be in a position that if we are ever challenged politically to our right to self-regulate, to say: ‘Hey, we did it with the Coxe Commission. We did it with this commission. Every five, six, seven years we take a hard look . . . at this very important function of self-regulation.’ I want to be in a position to say this is how important we take this responsibility.”

Group One Chair Eugene Pettis, the Bar’s president-elect designate, said his group began its review by examining trends in disciplinary cases between the recommendations made by the Bar and the actual discipline imposed by the Supreme Court. Pettis said 36 cases were examined from January 2008 through May 2011, and while the vast majority of decisions showed the discipline imposed was in line with the Bar’s recommendations, in 12 cases the court imposed discipline at a greater level than was originally sought by the Bar.

Pettis said the group agreed the court is moving toward stronger sanctions for attorney misconduct and that holding lawyers to a higher standard may increase the reputation of all lawyers in the eyes of the public.

Pettis said sanctions imposed by the court that differ from those sought by the Bar may confuse Bar counsel as to what precedents to rely upon when making their case before referees. The group recommended seeking a greater dialog between Bar leadership and the Supreme Court, so that differing views in discipline cases can be discussed.

Group One Vice Chair Reneé Thompson, immediate past president of the Young Lawyers Division, summarized recent trends in cases involving conditional admittees and the steps the Bar has taken when conditional admittees fail to comply with the terms of their Florida Legal Assistance, Inc., contracts. Thompson said there are currently no clear- cut guidelines on how compliance failures should be addressed and recommended the Bar’s Disciplinary Procedures Committee consider a broad policy outlining criteria for when probation should be enhanced or when contempt should be recommended to the court.

HAWKINS COMMISSION members Grasford Smith, left, and George Knox confer at the meeting in Orlando at the Florida A&M law school. The panel is expected to have a summary of its recommendations ready for the Board of Governors to review in March. Florida Supreme Court Justice Barbara Pariente, who attended the meeting but is not a commission member, noted conditional admissions are currently confidential and the public has no idea which lawyers are admitted conditionally. Pariente urged the commission to make sure protecting the public is a primary consideration of any recommendations.

Justice Peggy Quince was also in attendance and suggested the commission re-examine the provision contained in the FLA, Inc., conditional admittance contracts, focusing on the tell-tale signs of continued abuse.

Pettis’ group is also discussing the imposition of sanctions, specifically the 90-day nonrehabilitative suspension versus the 91-day rehabilitative sanction.

The group discussed changing the 91-day rehabilitative suspension to a flat six-month suspension, noting the current 91-day suspension is “misleading” since it takes three to six months — at a minimum — to complete the investigative phase and petition requirements for a lawyer to finalize the reinstatement process.

The group’s preliminary recommendation was not to create standards for rehabilitative suspensions, but work to put together a plan that would review each case on its individual merits. They also noted the Disciplinary Procedures Committee is examining the issue of a six-month minimum rehabilitative suspension that would also permit suspended lawyers to petition for readmission three months before the end of their suspensions.

Commission member Skip Smith also asked the group to recognize the disparity a suspension can have on practitioners based on the size of their firm.

“If a lawyer gets suspended for 10 days in a big firm, they go on a 10-day vacation and come back like nothing happened,” Smith said.

“If a solo or small-firm practitioner gets suspended for 10 days, tells all his clients, then their practice is in jeopardy.”

Pettis said that’s worth considering.

Thompson also discussed the Bar’s professional enhancement programs in both discipline and diversion cases, and the group preliminarily recommended to:

• Have the DPC look at shortening the eligibility for diversion from once every seven years to once every three to five years, especially when a member needs diversion in an area unrelated to the previous diversion. Thompson said while there is a 10 percent recidivism rate of those who attend diversion programs, their subsequent violations are not necessarily in the same subject areas as the first offense.

• Rename the Bar’s “Anger Management” workshop the “Stress Management” workshop.

• Videotape the Grievance Committee Institute training to make it readily available to grievance committee members.

• Hold a regular retreat for diversion program speakers to ensure their presentations are constantly updated and interesting.

• Make the Trust Accounting, Time/Stress Management, and Advertising workshops available as CLEs to all members, specifically targeting young lawyers and law students.

On the issue of aging lawyers, Pettis said the group focused on older lawyers who develop limitations associated with aging, as well as aging lawyers who have no sign of diminishing capabilities.

The group preliminarily recommended:

• Developing a mentoring program that would match older practitioners with younger lawyers, where each group can draw upon the strengths of the other.

• Developing programs to assist aging lawyers’ transition out of practice.

• Developing a checklist to identify early signs of diminishing capacity to assist in intervention and diversion to prevent potential ethical violations; and in the case of rules violations, consider offering permanent retirement in lieu of disciplinary actions.

Pettis said the group members agreed that there should be some long-term programs to help change the culture surrounding the issue of aging to make it more acceptable for a lawyer to smoothly transition out of the practice of law.

Naples attorney Edward Cheffy, chair of Group Two, told the commission the Bar has a real problem communicating with the judges who file complaints against lawyers.

Cheffy said a Bar survey shows that 50 percent of the responding judges who referred a case to the Bar were “dissatisfied” with how the Bar communicated with them about the case, and 57 percent were “dissatisfied” with the result of the referred case.

“That to me is simply unacceptable,” said Cheffy, noting, however, the “good news” is that part of the problem is easily addressed by standardizing how the Bar communicates with judges who bring complaints to keep them informed on the status of the cases.

“We will always have a difference between someone thinking a complaint should be brought and the person who is then evaluating the complaint and disposing of the complaint,” Cheffy said. “You will never have 100 percent agreement on that.”

Among Group Two’s ideas are to:

• Improve education of Bar staff so that they comply with existing Standing Board Policies.

• Provide more education for judges on the disciplinary process.

• Prepare a checklist in every judicial referral file that must be completed at the conclusion of a case.

• Provide independent oversight and follow up on all judicial referrals.

In examining frivolous and retaliatory complaints, commission member Julie Sneed said Group Two concluded there are sufficient rules in place to handle those types of cases.

Group Two recommended creating a database to track complainants to identify those who have a history of filing frivolous complaints and that the complaint form be amended to include a line where the complainant would indicate whether they have filed previous complaints.

West Palm Beach’s Greg Coleman, vice-chair of Group Three, presented a number of recommendations to better communicate with the public about the discipline system, including:

• Create a single page on the Bar’s website that includes all information about discipline currently available on the site (in multiple locations) and add several other new items: a Power Point presentation on how the grievance process works; a section regarding public reprimands with an explanation of what they are; a video of a reprimand (or a mock reprimand) and the text of all reprimands as delivered; a link to a free one-hour CLE on the grievance system for Bar members; and a Q-and-A of frequently asked questions.

• Work to get more Florida newspapers to publish the Bar’s monthly disciplinary releases.

The commission is expected to have a summary of its recommendations ready for the Board of Governors to review at its March meeting, with a final report presented in May.