By Gary Blankenship
Professionalism disputes should be resolved in a more-or-less informal process at the local level and in a fairly short time frame, according to the Supreme Court’s Commission on Professionalism.
The commission met June 27 at the Bar’s Annual Convention to flesh out details of the court’s opinion approving the Code for Resolving Professionalism Complaints.
Much work remains, but commission members agreed on details that would create a fairly informal system where circuit local professionalism panels created by the court’s order would resolve most disputes within 60 days of a complaint being made.
“We’re in a whole new ballgame,” said Supreme Court Justice Fred Lewis, chair of the commission and author of the court’s June 6 ruling. “We do not intend to set up a competing disciplinary system. The question will be what this commission wants to do and how it will proceed.”
The court’s opinion was a follow-up to the commission recommendation from its 2012 Bar Convention meeting that “repeated and substantial” violations of professionalism standards should be subject to review and possible sanctions. (See story in the July 1 Bar News.)
The court also adopted the commission’s suggestion that instead of writing a new code that professionalism be defined as standards already established 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.
The order also mandated creation of local professionalism panels in each circuit and said professionalism complaints would be accepted by the local panels or by the Bar’s Attorney Consumer Assistance Program (ACAP), which handles intake for the Bar’s grievance program.
Lewis told the commission he anticipates that Chief Justice Ricky Polston’s office will issue guidelines in August for setting up the local panels.
Commission member Jack Brandon said members of the commission should meet with circuit chief judges and the local panels to outline the commission’s aspirations for the program.
“We have to take the next step and start educating our local circuits on how to deal with these complaints once they begin coming in,” he said. “I think we create options for them; we leave them the discretion of how to deal with them, but make recommendations on the framework to operate under.”
Lewis was asked early in the meeting to delineate the difference between the new local professionalism panels and existing Florida Bar circuit grievance committees.
“A grievance committee is looking to violations of the Code of Professional Responsibility and whether there’s probable cause to proceed down a disciplinary path,” the justice replied. “It was thought these local [professionalism] committees would be more informal, would be flexible, would provide a source or outlet for complaints that are short of grievance type of things because much of the conduct may have a difficult time fitting into one of our existing rules.”
He added later, though, that repeated egregious conduct might well result in a referral to the grievance system. He said that any complaint coming into a local professionalism committee involving a violation of the Code of Professional Responsibility will be referred to the grievance process.
The commission made several recommendations for enacting a professionalism resolution system:
* Although the process is intended to be more informal than the grievance process, there should be record keeping so the effectiveness of the program can be measured. The reporting form should be one page to indicate who (client, lawyer, or judge) made the complaint, what type of conduct was involved, and the outcome.
* Nonlawyers as well as lawyers and judges should be able to make complaints. Commission members said excluding nonlawyers would give the appearance of the Bar protecting its own, but also said they expect most complaints will come from lawyers and judges.
* Local committees should be required to resolve a complaint within 60 days and also report to the complainant on the outcome. “If we are in agreement that this is in essence a counseling or referral, it strikes me that 60 days is . . . enough time. Counseling is best done close to the time of the incident,” said commission member and Florida International University Law Dean R. Alexander Acosta.
* The Bar’s Professionalism Committee should examine creating professionalism CLE programs. Currently, Bar members are required to include five credits every three-year reporting cycle that covers ethics, professionalism, or mental health (including substance abuse) topics. Members discussed programs for law schools but took no action after Linda Calvert Hanson, director of the Bar’s Henry Latimer Center for Professionalism, said the center compiled a report on law school professionalism activities.
* While the commission sets broad outlines for the program, The Florida Bar Professionalism Committee will fill in the operational details, as assigned.
The commission looked at recommending a rule requiring lawyers to participate in the professionalism program; in essence mandating they respond to a complaint. But members elected to postpone any such action to see first how it operates in practice.
“Practically, what is going to happen is when a complaint comes in, the [local] committee will ask the lawyer to explain and there will be an informal discussion,” Brandon said. “I think the fact of the matter is the committees are going to want to hear from the lawyer and sort through it.”
Justice Lewis said the commission will meet again after the Bar’s Standing Committee on Professionalism accomplishes its assignments. The committee met later that afternoon and assigned its Ad Hoc Working Group the task of preparing the one-page reporting form.