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August 15, 2017

hand print I am always delighted to find The Florida Bar News in my mailbox. The articles are always well written and informative. As usual, I wiped the smudges off my desk and went to wash the ink off my hands.

This month, I was strangely delighted to find Mr. Sexton staring up from my palm. I have two questions. How much are we saving by using this strange ink/paper, and who do I need to talk to about signing up for this new “take it with you” advertising?

Allan J. Charles
Daytona Beach

(Editor’s Note: Randy Traynor, our advertising director, can attend to all your Journal & News advertising needs — in print and online. Contact him at 850-561-5685 or [email protected])

Diversity and Inclusion
The Florida Association for Women Lawyers is thankful for The Florida Bar’s recent initiatives to combat and eradicate gender bias in the legal profession in Florida. In 2015, The Florida Bar’s Young Lawyers Division published the results of its 2015 YLD Survey on Women in the Legal Profession, in which female attorneys reported experiencing gender bias in the legal profession — 43 percent of respondents experienced gender bias during their legal career.

In response to the YLD survey, The Florida Bar appointed a Special Committee on Gender Bias to study gender and diversity issues in order to make concrete recommendations. The special committee sent out a broader survey on gender equality in the legal profession. One out of every seven female respondents indicated experiencing harassment or bullying within the last three years due to gender. In May 2017, the special committee published its report and recommendations including a 12-point plan to be implemented by The Florida Bar in addressing gender bias, including the creation of a Subcommittee on Gender Equality that will be responsible for overseeing implementation efforts of the special committee’s preliminary recommendations. The special committee’s work is just one recent example of steps The Florida Bar is taking to improve the legal profession.

The Florida Bar has also taken the lead in recognizing parental leave as a valid reason for a continuance of trials and significant court activity for lead attorneys — both women and men — in their cases. The Florida Bar Board of Governors, made up of representatives of every judicial circuit in the state of Florida, voted unanimously to recommend a new Rule of Judicial Procedure (Rule 2.570) that, if approved by the Florida Supreme Court, would allow lead attorneys to obtain a three-month continuance for parental leave, provided that the client agrees and there would be no substantial prejudice to the opposing party.

The Florida Bar is not the only pace- setter. Florida state and federal courts are establishing lactation rooms in courthouses across the state, which provide a clean, private room for litigants, jurors, courthouse staff, lawyers, and judges to use so that they do not have to pump in public.

FAWL is incredibly grateful for The Florida Bar’s attention and action on gender bias and a special thank you to our courthouse partners and to the YLD for being the change agents.

Jennifer A. Sullivan
FAWL President

The page one, above-the-fold article in the August 1 News of the Bar’s nonstop “diversity and inclusion” propaganda pieces included a pull quote in the establishment’s perpetual push to go beyond equal opportunity and realize equal results so that the demographics of private law firms and membership in the Bar is on par with what the state “looks like.”

The pull quote: “You have to have a diverse population of thinkers and solution-makers to ultimately come up with solutions that will help your firm to survive.” Have to have? Solutions to what? A firm cannot survive (or should not survive?) without it being superficially diverse?

Such thinking (more like feeling) is regressive “progressive” politics with the banner of promoting and protecting disadvantaged groups victimized by the one group America deems may be openly criticized, for they are using too much of their “privilege” for their own advantage and must spread the wealth. Feel good gunk force-fed on a weary public until they finally give in to the emotion-over-logic demands. Such is the goal.

This backward liberalism feeds and grows close-minded notions that one cannot receive effective representation and counsel, and one cannot give effective representation and counsel, and one cannot further justice and mercy, unless there is between the involved parties at least some overt sameness with regard to superficial characteristic(s).

Even with the last decade’s weed-like growth of obviously divisive identity politics and cultural tribalism, there is more diversity in the attorney-client dynamic than ever before, regardless of gender, color, ethnicity, national origin, religion, disability, sexual persuasion, or any other subgroup known today. In personal and business relationships, people are treating other people like open-minded individuals to a greater extent. We may be more careful in what we say due to poisonous political correctness, but one’s actions always speak louder than words, or at least they should.

So why the long-standing words on superficially diversifying the Bar, law firms, and government agencies to the point where its personnel mirrors the community at large?

Some would say it’s because we still believe in treating others according to the content of their character, not their outward appearance. More and more of us know that it’s now much more the opposite, promoting the latter over the former due to a growing fear of being labeled insensitive (and any number of other, harsher terms) in an overly sensitive age. Fear is a powerful motivator.

This latest Bar bromide, and its 12 recommendations, was born after “reaching out to ‘thought leaders’ ­— educators, professors, and deans.”

“Thought leaders.” Newspeak chic.

Jeff Boston

With respect to recent letters dealing with such matters as parental leave, etc., an important point must not be overlooked. While not condoning the denominated “sexist” authors, I am somewhat dismayed with the position taken by the later opponents that these earlier “sexist” letters should not have been published by the News. It is not the job of the News to act as a politically correct censor.

It seems to me that freedom of the press is at stake here.

Also, whatever happened to that famous saying, “I disagree with what you say, but I will fight for your right to say it”?

Thomas F. Harkins, Jr.
Ft. Worth, Texas

Rage Against the Machine?
Christine Bilbrey, a PRI practice management advisor, in her otherwise excellent article, “The Virtual Law Practice: The Future Is Now,” in the May 15 News, would have us believe that the future practice of law is just a “desktop” and “cloud” away.

Consider the futuristic words that are now being used:

• Remote desktop virtualization.

• Bundle program.

• Client portal.

• Encrypted messaging.

• Instant accessibility.

• E-signature capability.

• Video conferencing capability.

Shakespeare, Milton, and Keats, where art thou now that we need you?

But where is wisdom and good judgment in all this? Or insight? Or the personal touch?
Indeed where is the human element?

What would Abe Lincoln in his 19th century law practice have had to say about 21st century law office technology?

Or William Blackstone, Edward Coke, and Solomon? Or Matlock, Perry Mason, or Rumple of The Old Bailey?

Progress is not always progress, and holding to the past is not always a lack of progress.

Or is it that someday we shall have only virtual lawyers and virtual clients and even virtual judges who are merely robots floating somewhere in some “cloud”?

But what happens when the plug is pulled on all this technology? Or some hacker from Mars or Jupiter shuts down the whole thing?

We must not let the information technology industry that profits from its advice tell lawyers how they must practice law. (Or physicians how they must practice medicine.)

E.M. Forster’s 1909 science fiction short story “The Machine Stops” is here. He described a world in which human beings are connected by a universal instant-messaging and video-conference machine that eventually collapses, bringing the world and civilization to an end.

We must heed Forster’s warning about over-reliance on technology.

Stephen Schoeman
Westfield, NJ

A Cautionary Tale
How would you feel if you found out through a mistaken phone call that you had been held in indirect criminal contempt by a probate judge, and you were about to be sentenced at a hearing in seven days, for something in which you had no involvement?

There is a serious and frightening problem at work in the Dade County Probate and Guardianship Court, and probably the same problem exists in every county in the state of Florida, that will put you in that exact position. Simply stated, probate judges are holding lawyers criminally responsible for the bad behavior or noncompliance of their clients. If you represent a guardian, and you have, for example, prepared the annual report, but the guardian fails to cooperate and sign the report, or fails to provide you with a financial accounting, or refuses to give you a doctor’s letter, or flees the jurisdiction with the ward, you, as the attorney, can go to jail and/or be fined thousands of dollars. This will happen to you even if you notify the court of the problem with the guardian. Suddenly, you have become the responsible party, and a criminal.

The process starts like this: You are representing a guardian and the court file has been given to a “state auditor,” who then “coordinates” with the “case manager,” the court clerk, and the judge’s office, who all “determine” what, if any, filing deficiencies or problems exist in the matter. If you are lucky, an order to show cause will be served on you by email demanding why you, the attorney, should not be held in indirect criminal contempt for not timely providing the filings, even though your client has fled the jurisdiction or is otherwise not cooperative, and you have notified the court of that fact by motion or letter. I say “lucky,” because the people who are “reviewing” the file just as likely will not send you the order to show cause, not by mail, not by email, not by personal service.

Since you haven’t received notice, you will not attend the show cause contempt hearing. Then, an order of indirect criminal contempt will be issued against you, threatening you with jail time and fines, and setting a hearing date for your “sentencing.” If you are lucky again, you will be served with the order of contempt so you can prepare for your sentencing hearing. But, most likely, you will not be served with that order either. The next thing you know, the sheriff will be at your office door, handcuffing you, and hauling you off to jail.

Do not think for an instant that if you have filed a motion to withdraw because of your client’s noncompliance, and have even obtained an order of withdrawal years before relieving you of all responsibility, that five years down the road you will not be arrested. You will be arrested, be confused, be baffled, and be downright frightened and angry. Finally, when your paralegal is able to review the docket and history of the case while you are in custody (or sitting at home biting your fingernails and throwing up), you will be brought before the judge, and you will listen to a hollow and vapid apology for the rank incompetence of the state auditor, the case coordinator, the clerk’s office, and everybody else’s incompetence, except that of the judge or the judge’s staff. An order quashing the contempt will be signed then (maybe), but after all of that mental anguish, whooptido.

The above scenario is not a hypothetical. It actually happened to me, (except for the jail part, which is certainly an actuality in these cases, as the show cause order states it), and it is happening to lawyers every day. This all raises important legal questions. First, under what authority does a circuit judge have to hold a lawyer criminally liable for the behavior of the lawyer’s client? In 43 years of unblemished practice, I have never seen this in a criminal case, a civil case, a workers’ comp case, a divorce case, or any other type of case. Under our system of jurisprudence, this cannot possibly happen because criminal intent is required to be convicted of a crime (indirect criminal contempt is a crime for which you are entitled to receive an arraignment based on a charging affidavit, and due process), and one person certainly cannot be liable for the crimes or violations of another. Yet, this is exactly what is happening in the Dade County Probate and Guardianship Court. It is happening due to the rank incompetence and indifference of every government person involved in the case, starting with the state auditor, and ending with the judge, none of whom, apparently, know how to read a file or understand the meaning of the documents in it.

Secondly, in this age where lawyers are constantly told to be civil to each other and to the court, where is the civility of the court back to the lawyers? At the initial show cause hearing, at which, of course, I was not present, why couldn’t the judge simply pick up the phone and ask me where I was? Why couldn’t the judge make the minimum effort to read the docket to see that the guardian had fled the jurisdiction and that I had no involvement in the case? The entire matter could have been easily resolved then. This also would have avoided bringing me back to court out of retirement, being responsible for thousands of dollars on a lawyer to represent me, and wasting a paralegal’s time coming to the sentencing hearing. Aside from the money, who will compensate me for all of the emotional distress I suffered when I found out, by pure dumb luck, that I had been convicted of a crime, and now had to defend myself at a sentencing hearing?

My advice to all the members of The Florida Bar: Until there is a higher court ruling terminating this nonsensical, irrational, and illegal procedure; or until probate judges actually open their eyes and put a minimum of effort into reviewing the court docket, and do not merely rely on utterly incompetent personnel; or are courteous enough to make a simple phone call to you, do not take on any guardianship cases. Withdraw from any guardianship cases you are currently on. Let the court wallow in the sea of pro se litigants that will inundate them. It’s your turn to redistribute the wealth of fear and trembling.

Michael Lechtman
North Miami Beach

[Revised: 07-19-2018]