Confidentiality for circuit professionalism panels discussed
Confidentiality for circuit professionalism panels discussed
Senior Editor
Confidentiality, performance, and publicity about local lawyer professionalism panels were the focus of the Supreme Court’s Professionalism Commission, when it met June 25 at the Bar’s Annual Convention.
The commission, chaired by Supreme Court Justice Fred Lewis, voted to create three subcommittees to look at confidentiality of the local professionalism panels, to compare how the panels are operating, and to further publicize the panels and their operations.
The circuit-based local professionalism panels were created by the Supreme Court two years ago at the commission’s recommendation.
The panels are intended to run a local-based, informal system to resolve bad behavior by lawyers that does not rise to the level of a Bar grievance.
It took a year or more to get the local panels up and running, and the commission is now looking at how the panels operate and what problems are arising.
The meeting started with a report from commission member Jason Odom on an informal meeting between panels last January.
He said the meeting looked at immunity for panel members (the Supreme Court in January issued an opinion giving panel members and any staff immunity), confidentiality including admissibility of records, marketing the panels to improve participation, and finally what penalties panels could impose.
The latter issue included discussion on whether panels could refer lawyers to courses in the Bar’s ethics and professionalism schools. Shannell Schuyler, director of the Bar’s Attorney Consumer Assistance Program, said any referral to those courses would cost the lawyer $750.
As for confidentiality, “You want to have buy-in of the process; you want everyone to be comfortable,” Odom said. “You don’t want retaliation or the reporting that someone was involved in the process.”
Lewis noted the confidentiality issue can be complex because the local panels have different operating procedures. Some create a paper record, some operate with verbal requests and actions, and the professionalism system is voluntary for lawyers.
One commission member told of an instance where a personal injury case resulted in a complaint against the plaintiff’s attorney over a discovery dispute. When that was dismissed, the plaintiff’s attorney tried to introduce the complaint in court, which resulted in another complaint of retaliation, which the plaintiff’s attorney also said he planned to introduce.
The plaintiff’s attorney argued any confidentiality of the panels was not binding on him as the subject of a complaint and it was his right to introduce the complaints.
Another attorney brought witnesses to the local panel meeting and asked that they be allowed to attend.
Representatives of panels from around the state discussed their procedures. Some rely on paper records, including a short complaint form. Others rely almost entirely on informal, verbal operations. Some also take complaints from the public, while others take only complaints from lawyers and judges.
“If a piece of paper is created, you have a public record issue or you create an electronic document,” Lewis said.
“The wildest thing that you never dream of may be a public record once a public official touches it in some way.”
Other members noted that the professional panels are voluntary and intended to be informal, and to make them subject to public records laws would be counter to that effort.
At Lewis’ suggestion, the commission voted to create a subcommittee to look at confidentiality and operations of the local professionalism panels.
The commission also, following Odom’s report, voted to create a subcommittee to be a forum where the various panels can meet to discuss common problems. First Circuit Judge Ross Goodman, who participated in the January meeting between local panels, praised that meeting but said the commission should not dictate how the local panels should operate.
“But the panels should get together and share what works and what doesn’t,” he said.
The commission approved a third motion to create a subcommittee to promote marketing for the panels. Odom reported that the Bar’s Young Lawyers Division allocated $10,000 last year ($500 for each circuit) to publicize the panels and approved another $10,000 this year.
“Marketing of the panels was a big concern of everybody [at the January meeting],” he said.
The Florida Bar’s Henry Latimer Center for Professionalism maintains a list of contacts for each circuit’s professionalism panel on the Bar’s website.
The commission also heard a report from Schuyler on ACAP operations. She said ACAP gets between 21,000 and 22,000 calls a year, about a third of which become formal grievance complaints. She said ACAP has begun tracking calls that concern professionalism matters and in the past year referred 21 callers to local professionalism panels.
Schuyler said there may have been other cases where callers contacted a local panel after talking with ACAP, and that ACAP staff does not automatically make a referral unless a caller wants that.
“There are times people are calling to get information [about filing a grievance or professionalism complaint] and they may not want to take it further,” she said.
“I would shy away from mandating that we must [refer]. We certainly ask callers if they want us to contact a local panel on their behalf and talk with them.”
The commission approved a motion to have ACAP report to a local panel if requested by a caller.
Lewis said he would prefer it to be mandatory for ACAP to report any professionalism issues to local panels, but added after the commission’s vote, “This is the way we’ll approach it.”
