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August 1, 2017
Court’s professionalism panel focuses on ethics, civility, and education

Assembling an online compendium of professionalism standards and mandating that one of the Bar’s required ethics CLE credits be devoted to professionalism have been recommended by the Supreme Court’s Commission on Professionalism.

Justice Fred Lewis The commission, which met at the Bar’s Annual Convention in Boca Raton, also recommended adding “and civility” to the commission’s name and to the Bar’s Standing Committee on Professionalism and discussed underlying reasons lawyers act unprofessionally.

Members also talked about publishing, for educational purposes and with identifying information removed, decisions from local professionalism committees and ways to continue publicizing the local committees’ activities to lawyers, judges, and the public.

The decision to form a subcommittee to assemble information on professionalism expectations came from a discussion about publicizing the existence and functions of local circuit professionalism committees and what Bar members know about the process and what is expected of them. The committees are charged with informally handling complaints about lawyers’ bad conduct that does not rise to the level of a Bar grievance.

Justice Fred Lewis, chair of the commission, noted when the commission acted to create the statewide professionalism program, the first question addressed was whether to write a professionalism code. Instead, the commission decided existing information, contained in the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, The Florida Bar Professionalism Expectations, the Rules Regulating The Florida Bar, and the decisions of the Florida Supreme Court was sufficient. Local rules also play a part.

But member Bradley Trushin, a member of the 11th Circuit professionalism panel, said many lawyers and judges don’t take the time to compile those diverse sources.

“It’s difficult for members of the public and the profession to understand what the professionalism standards are,” he said. “It’s a matter of letting people know and . . . in Miami-Dade County a large percentage of lawyers have not heard of them and do not follow them.”

Trushin made the motion, which the commission unanimously approved, to set up a subcommittee to study assembling and cross referencing the information. Trushin noted he has already informally done that for Miami-Dade and posted it online at .

Commission member Bud Gardner, a former public member of the Bar Board of Governors, made the motion to recommend to the board that one of the five ethics credits required in each lawyer’s three-year CLE reporting cycle be devoted to professionalism. (Under Bar rules, the five credits can be devoted to ethics, professionalism, or substance abuse/mental health awareness.) Gardner, a licensed engineer, noted part of his required continuing education was devoted to ethics and professionalism.

The commission approved that.

Commissioner Manual Perez-Leiva made the motion to recommend to the court and the Bar, respectively, that civility be added to the names of the professionalism commission and committee. The commission approved that suggestion.

“What we’re really talking about is civility,” Perez-Leiva said. “What we’re really talking about is we want lawyers to be civil and polite.”

Among the issues discussed at the meeting were publishing decisions of local professionalism panels as both an education tool for Bar members and to publicize what the panels do.

“I think the publication of selected opinions with appropriate redactions is an excellent idea,” Trushin said.

But Bill Kalish, a member of the 13th Circuit local panel, said the 13th Circuit panel doesn’t really issue decisions but “the approach is about how to teach the problem lawyer to perform in future conduct.” Another member added many local panel actions don’t come as decisions but rather advising a lawyer to “stop being a jerk.”

Lewis asked commission members to begin considering “the causes of unprofessionalism, the sources of stress, and the causes of the lack of professionalism.

“I think unless and until we’re willing to look at those causes, we’re still fighting with telling someone not to do something in the future. I don’t think there’s any problem that’s unsolvable or at least addressing it to make it better,” he said.

Seventh Circuit Judge Sandy Upchurch, a member of her circuit’s local panel, said in many cases lawyers are like people she sees in foreclosure court.

“Families or individuals can overcome one obstacle in their life; it’s when there’s a second problem that families are overwhelmed. It’s like that here,” she said. “In my opinion, a lot of lawyers are overwhelmed with something that has gone on in their life. A lot of them are financially stressed and usually it’s something that goes on top of that. I think most lawyers are afraid to reach out.”

Kara Rockenbach, a member of the 15th Circuit local panel, said the commission should look for ways to promote existing Bar programs to help lawyers with problems, and also work on mentoring. (She reported that in two recent cases handled by the 15th Circuit professionalism panel, one lawyer had lost a wife and the second a child.)

Upchurch suggested having law students and new lawyers spend a day observing court hearings, and Rockenbach said in the 15th Circuit judges say most professionalism problems they see come at open motion calendars. Other members suggested having law students or new lawyers witness Bar public reprimands.

On a related issue, Kalish said he met with a paralegal group and they were enthusiastic about getting involved in the professionalism effort. But he said care would have to be taken because of confidentiality issues.

And while some commission members talked about getting the public involved in reporting unprofessional actions, Third District Court of Appeal Judge Kevin Emas argued it was more important to educate lawyers and judges about the process.

“Have you ever had a situation where you noticed a lawyer was acting unprofessionally but you didn’t report it to the Bar [as a grievance]?” he asked. The typical lawyer reaction is “I didn’t want to get them in that much trouble. I wanted them to stop acting unprofessionally, but I didn’t want to get them in that much trouble. That’s why we have professionalism panels. . . . I think the real education process is for other lawyers and judges so they can use it for something less than formal Bar grievances.”

[Revised: 02-21-2018]