Board to hear recommendations from committee studying professionalism
When it convenes December 3 on Amelia Island, the Board of Governors is expected to weigh a host of issues, from a special committee’s highly anticipated recommendations for improving professionalism, to a proposed rule change that would require Bar members to indicate their retired status.
In June, President Michael Tanner formed the Special Committee for the Review of Professionalism in Florida and directed it to “study and recommend ways to improve the definition, teaching, and enforcement of professionalism standards.”
The Florida Bar received some 8,000 complaints about lawyers in 2019, but only a small fraction, 325, resulted in a disciplinary action, suggesting that the overwhelming majority of the Bar’s 110,000 members live up to the high standards the profession demands.
But in annual surveys, Bar members consistently list a general lack of professionalism as a top concern. A 2021 email survey of 4,000 lawyers, which generated a robust 34% response rate, upheld the trend.
A sizeable majority of respondents, 57%, said they would approve of “stronger methods” to enforce professional standards, with a mere 11% opposed, and 32% unsure.
Co-chaired by President-elect Gary Lesser and Elizabeth R. Hunter, the 20-member special committee includes a veteran appellate judge, a former Bar ethics counsel, a Stetson law professor, and lawyers from large and small firms who represent diverse practice areas and a wide range of experience.
Lesser said the recommendations are still being finalized. But he confirmed that one area of focus will be local professionalism panels.
“A big part of this lift is to increase awareness of the professionalism panels, which really are the front lines of dealing with these professionalism issues,” he said.
Local professionalism panels lack authority to discipline attorneys, but supporters say they have been successful at identifying and correcting problem behaviors before they rise to the level of a formal complaint.
A major challenge, committee members say, is that the panels lack uniform procedures. Activity levels also vary widely. A panel that serves the 11th Circuit handled two dozen cases in 2020. Others were dormant due to a lack of referrals.
The committee also reviewed the professionalism standards themselves to see if they can be improved, or better promoted, Stetson University School of Law Prof. Kirsten Davis told the committee in September.
In a 2012 order, the Supreme Court identified the integrated professionalism standards as The Florida Bar Professionalism Expectations, The Florida Bar Oath of Professionalism, The Florida Bar Creed of Professionalism, the Rules Regulating The Florida Bar, and the decisions of the Supreme Court.
An education subcommittee has been reviewing, among other things, the continuing legal education requirements for professionalism.
Under Florida Bar Rule 6-10.33(b), at least 5 of the 33 credit hours a lawyer is required to complete every three years must be in “approved legal ethics, professionalism, bias elimination, substance abuse, or mental illness awareness programs, with at least 1 of the 5 hours in an approved professionalism program, and at least 3 of the 33 credit hours must be in approved technology programs.”
Committee members said they were considering recommending increasing the amount of professionalism CLE that is required or changing the way it could be earned.
In other business, the Board of Governors is expected to weigh a host of proposed rule amendments.
A Rules Committee proposed amendment would allow retired Bar members to continue using the honorific, “Esquire,” or “Member, Florida Bar,” but they would have to indicate their status.
The proposed amendment to Rule 1-3.5 (Retirement), would add a new subsection that states “Retired members must affirmatively represent their retired status when any statement of Florida Bar membership is made, e.g., when in writing, Esquire (Ret.) or Member, Florida Bar (Ret.)”
Another provision of the proposed amendment clarifies that, although retired are prohibited from practicing law, they may be certified as an emeritus lawyer under Chapter 12 for activities permitted under Chapter 12.
In other business, the board may also be asked to weigh the permissibility of a law firm’s humorous TV ads, including one that depicts a faux Benjamin Franklin, settlement check in hand, proclaiming “I got my Benjamins.”
The Standing Committee on Advertising voted 6-2 in August to reverse a staff determination that the ads do not comply with Bar Rule 4-7.13(b((1). The rule prohibits ads that can be interpreted as a “prediction or guaranty of success or specific results.”
In a related decision, the Standing Committee on Advertising voted 5-3 to reverse a staff opinion that another of the firm’s TV ads is also an impermissible predictor of success under Bar Rule 4-7.13(b)(1).
The ad depicts an actor portraying Santa Clause telling an attorney “It’s grandma, she got run over by a reindeer. They say she doesn’t deserve a penny.” The lawyer responds, “Don’t worry, Santa. Our army of trial lawyers…will sleigh them!”
The ads also feature the message, “You Don’t Have to be a VIP to Hire America’s Largest Injury Law Firm.”
The committee determined that the ads are permissible because they are humorous and obvious puns.
“The Standing Committee on Advertising determined that the advertisements use humor to deliver the message that the firm represents ordinary people, and a person does not have to be famous or important to hire the firm,” according to a staff analysis.
The Board Review Committee on Professional Ethics will review the Standing Committee on Advertising decisions and forward its recommendations to the Board of Governors.
In other action, the board is expected to weigh:
- Proposed amendments to Standing Board Policy 8.20 (Responses to Bar Rules Petitions). The Rules Committee proposed amendments are designed to clarify that a Bar division, section, or committee must notify the Bar’s executive director when joining comments of another group in addition to when filing alone.
- Proposed amendments to Standing Board Policy 8.10 (Amicus Curiae Filings). The proposed amendments are designed to clarify that a Bar section must notify the Bar’s executive director when joining comments of another group in addition to when filing alone.
