June 1, 2020 Letters
Changes Here to Stay?
I recently read the observation by Daytona Beach columnist Mark Lane that the practices we adopt during the pandemic may remain with us if they are effective in a post-pandemic world. Along those lines, I hope many judges will continue to hold hearings by video or audio post-pandemic.
As an attorney for 26 years, I have observed that many court appearances involve two or more attorneys and their clients getting into separate vehicles, driving to the courthouse (which is sometimes an hour or more away), waiting anywhere from a few minutes to several hours, and, at the close of the hearing, getting back into their vehicles and driving back to their respective locations.
Certainly, there are hearings for which in-person attendance is mandatory by law and where audio or video hearings are inappropriate. However, in my experience, the vast majority of court hearings would seem to be amenable to audio or video appearances by litigants. I have an attorney friend whose brother joked with him that his job consisted of driving around asking for continuances. Although an amusing comment, there is certainly irony in attorneys’ often driving several times a week to multiple courthouses, sometimes an hour or more away, and waiting in court, sometimes for an hour or more, so he can explain to the judge why he has not had time to prepare for trial. After this 30-second exchange with the judge, he then drives, sometimes an hour or more, to his next location.
As we all know, many “cattle call” hearings consist of anywhere from 20 to 100 cases set for the same time. Imagine if physicians scheduled 100 patients for the same appointment time. Inevitably, some patients would end up waiting for an extended period of time. Imagine, alternatively, the decrease in the price of gas and the benefit to the environment if every courtroom in the country held most hearings remotely. Imagine the efficiency gained by attorneys and their clients, many of whom must make childcare arrangements and postpone or forego other important activities so they can make the drive, wait their turn, and appear in person.
Here’s to a change for the better.
Florida Lawyers Helpline
I received the News and an email promoting a Florida Lawyers Helpline. The Helpline claims to offer “confidential” help. I don’t believe you.
I have practiced for 38 years in three different states. I applied to The Florida Bar 28 years ago and have never been treated so cruelly, disrespectfully, and unfairly in my life. At the time I applied, I had voluntarily stopped drinking and been sober for 10 years. The Florida Board of Bar Examiners treated me like a sexual predator who had been on television molesting a child that morning.
I know the Board of Bar Examiners is different from The Florida Bar. However, the Bar did nothing about the way the Board of Bar Examiners treated me. It did nothing about how the Board of Bar Examiners treated a fellow applicant whom I know personally. I will keep that person’s confidentiality, but suffice it to say that the treatment he received was so outrageous that I can barely think about it. Extremely recent law graduates tell me that the Board of Bar Examiners continues to treat applicants rudely, cruelly, and unfairly. Obviously, the Bar has done nothing in the past 30 years to bring decency and sound medical or psychological practice to evaluating applicants and lawyers.
Given the way the Board of Bar Examiners routinely treats everyone and the Bar’s total silence about it, I would never interact with any Bar program that could possibly be interpreted by ignorant people to reflect poorly on my character or fitness. I do not hold this view for the other two states where I have practiced. I know for a fact that the Florida medical board, nursing board, board of psychology, and other professional boards treat struggling or impaired professionals in a decent way, based on sound medical and psychological science, to help them. I do not for a minute believe that The Florida Bar adheres to those principles. And I am not alone in that view.
(Editor’s Note: The Florida Lawyers Helpline is provided through an agreement with CorpCare Associates, Inc., which has a network of over 200 professional counselors across Florida and 11,000 nationwide. The service is completely confidential and no information about individual clients will ever be shared with employers or The Florida Bar.)
The April edition of the News has an interesting article titled, “Florida lawyers ‘more positive’ about the Bar.” It is well written and extremely interesting. About half way through, however, a short paragraph raised serious questions about the validity of the conclusions stated in the article. The article is supposedly based on the results of a Membership Opinion Survey conducted in 2019. Surveys of this nature are intended to ask questions to a limited number of persons of a large collection of people in a particular organization to help policy makers attempt to understand the organization. The basic rule controlling such surveys is that the type of persons actually questioned in the survey should be as close as possible to the actual types of persons in the organization’s membership as a whole. In this case, the referenced paragraph raises questions about the validity of many parts of the survey itself.
The paragraph states that the survey was “mailed to 3,850 randomly selected Bar members.” The question that jumps out is: From which Bar membership list was the random selection made? The Florida Bar states that it had 101,279 members, but it hurriedly adds that 17,385 were not eligible to practice. Included as “not eligible” were retired lawyers, all judges, those in the military, and those who practice in other states but don’t keep up their Florida CLE requirements. Of the 83,894 balance remaining, 11,734 live in other states or countries. That leaves 72,160 practicing lawyers who list their address as being in Florida. It is unclear from which group of lawyers the survey participants were selected. Was the opinion of judges, retired lawyers, and lawyers currently working in other states considered or excluded? Should they have been included?
There is a more troubling issue. The survey was mailed to 3,850 lawyers by The Florida Bar, an arm of the Florida Supreme Court, and the organization in which Florida lawyers are required to maintain membership. Of the 3,850 persons asked to complete the survey, 73% rejected the request. Only 1,040 lawyers agreed to participate. Only 1.2% of the lawyers living in Florida and eligible to practice law here are the bases for the conclusions published by the Bar as the basis for the article. The percentage is even lower if a larger group of lawyers, including judges and retired lawyers are included in the group from which the survey participants were randomly selected. The most troubling issue is: Why would a lawyer refuse to participate in a survey created by The Florida Bar? Perhaps in view of the number who said “no” to the request, the real question is why those who did participate chose to do so?
Finally, there is no indication that, in accepting and counting the survey questions from the 1,040 lawyers, there was any effort made to determine the kind of lawyer answering the question. That factor apparently was not weighed when the survey reached the conclusion that “Florida lawyers” either “agreed” or “disagreed” with the many survey questions calling for opinions rather than facts. We all are aware that many lawyers “own” all or a part of a “firm” (with a wide variety of firm size and specialties) or may be involved in a solo practice. But many lawyers work for the government or for private enterprises (which they may even own) rather than be involved in the traditional “practice of law.” Some lawyers may only practice law part time. Some lawyers may be active in Bar activities or be members of firms with lawyers also members of the firm who are also very active in Bar activities. Some lawyers may be active in pro bono organizations while others may just “give money.” Some lawyers may be wealthy; some may be poor; some may be on the way up; some may be on the way down. Yes, some may be 87 years old like me, while others may be less than 28 years old as I was when I started trying to be a lawyer. Why is this important? If the survey reports results from only very unique individuals, it is unfair to people who rely on the survey as doing its best to represent what significant percentages of Florida lawyers actually believe or actual facts about Florida lawyers.
I personally frankly think that without knowing a lot more about the people surveyed, it is impossible to give any weight to a question like the one about whether “their work and personal life has good balance.” Without knowing more about the persons who answered the question, the fact that 67% say “yes” while 23% say “no” is totally useless. It cannot be argued that the survey answer has any actual value to the Bar. The risk is that it may only convince readers that the entire survey is useless, even to the Bar who created the survey, including the question involved.
An article appearing in the April News headlined “Florida lawyers ‘more positive’ about the Bar,” says 3,850 lawyers, or approximately 3.6% of the Bar membership, were “randomly selected” for the “2019 Membership Opinion Survey,” and 1,039, about. 97% of the membership, responded. Based on that random sampling of less than 1% of the membership, the survey concludes, “[a] great majority of Florida lawyers are pleased with The Florida Bar’s stewardship of the legal profession.”
The article breaks down various percentages of the less than 1% of respondents’ answers to various questions. For example, we are told “72% of respondents [about 748 or. 69% of members] agree the Bar is a supportive and cohesive organization interested in the well-being of its members (up from 67% two years ago), compared to just 11% who disagree.”
The Bar’s director of Research, Planning and Evaluation says, “[t]he survey results show a very high level of member satisfaction, which is reflective of both the efficient and effective leadership of the Board of Governors and Bar leaders, coupled with a dedicated Bar staff.” Despite what seems like a very small sampling of the Bar membership, the director declares, “the error of estimation rate is just over 3% at the 95% level of confidence.” Maybe so, applying an arcane formula, but wouldn’t a larger sampling of the membership be more supportive of the conclusions? And, isn’t it concerning that even with the tiny sampling generally favorable in its view of the Bar, “[m]ore than half of respondents (52%) report that the public’s view of lawyers and the legal profession has become less favorable in the last five years”?
As a member of the Bar for almost 45 years, I have never seen the organization less “cohesive” (see, e.g., Letters in the March and April News arguing pros and cons of Bar support for “social justice” ideology), and that may be reflected in the small response rate and the declining public view of the profession. But, nobody asked me — or 99% of the members.
St. Pete Beach
(Editor’s Note: Mike J. Garcia, director of the Bar’s Research, Planning & Evaluation Department responds: The procedures used for the 2019 Florida Bar Membership Survey follow the standard and acceptable procedures used in scientific polling, and the methodology that was used to create the sample conforms to the standard practices of competent survey research.
Most important though, the sample for this survey was chosen at random, which means that each Florida Bar member in good standing had both an equal and independent chance of being selected for this particular sample, which is the fundamental principle of survey sampling. Any sample created where the individuals do not have equality or independence in selection cannot legitimately be used to make inferences to the full population from what is observed in the sample.
The number of Florida Bar members in good standing that were selected to participate was based upon historical responses to Florida Bar surveys as a goal was to produce a sample of similar size to past surveys. As examples, the 2017 Florida Bar Membership Opinion Survey had a 25% response rate. The 2018 Economics & Law Office Management Survey had a 21% response rate. The 2019 Florida Bar Membership Opinion Survey had a 27% response rate.
Another important point of emphasis is that, once a random sample was drawn, the demographics of the participants were compared to the distribution of demographics of Florida Bar members in good standing. This comparison revealed that the demographics of the potential survey respondents did not differ by more than 1% from the population demographics.
Additionally, when the demographics of those Bar members who actually responded to the survey were compared to results of The Florida Bar’s 2017 Opinion Survey, the results of The Florida Bar’s 2018 Economics & Law Office Management Survey, and the demographic information that is maintained by The Florida Bar’s Membership Records Department, the sample for this survey was nearly identical to all three comparison points. All of these findings help to increase the confidence that the sample was truly representative of the population of all Florida Bar members in good standing.
In looking at just the pure numbers, the sample size of 1,022 is significantly higher from what would normally be used for a survey of this nature. In fact, statewide polls often run in the 400-600 response range, while national polls often run in the 800-1,000 response range.
Therefore, the percentage of overall Florida Bar members who responded should not be an issue as, in a survey where the sample is drawn from an infinitely large population, the percent of individuals in the sample rarely ever exceeds 1% of the population.
In reference to sampling techniques, one advantage of sampling all types of Florida Bar members in good standing and not leaving out a particular group such as judges or out-of-state practitioners is that you can provide the audience with much more information, such as demographic breakdowns, which the reader can use in comparing individual group data to the results and data displayed for all respondents. For example, Florida Bar Membership Opinion Survey tables not only show the results for the full sample but they also display differences between sub-groups such as in-state and out-of-state lawyers, private practice lawyers, and government practice lawyers, various age groups, size of law firm or legal office, years of experience, and much more.)
Responding to Online Criticism
Interestingly the Bar “requirements” for submitting this letter indicate that there should be “no personal attacks” in the letter.
However, quite hypocritically, based on the article in the March 2020 News, “Former client rips you online? Respond with caution,” the Bar has no problem with their members being falsely, illegally, and personally attacked or threatened in a public online forum. The Bar position relies on a confidentiality rule that predates the internet and essentially prohibits any meaningful response. As a criminal law attorney for well over 20 years, I absolutely embrace my duty of confidentiality.
However, when a client chooses to air their dirty laundry on the internet exposing their situation to millions of people, they have clearly waived any possible interpretation of confidential information. Generally, the lies, threats, and harassment can be easily refuted by public information on Clerk Net. For example, hypothetically, a negative review could easily be refuted by simply noting that the client’s criminal case was actually dismissed. Why can’t the lawyer simply say — thanks for your comment…BTW…this case was dismissed….There is absolutely nothing confidential about the fact that a case was dismissed. Or hypothetically — the lawyer “did nothing” in my case — when Clerk Net shows multiple pleadings/motions, etc. It’s publicly available information to anyone with a smartphone. That is not “confidential” information.
Let’s be clear — in this online age, one single negative review can put a small or solo firm out of business. Period. It’s time to seriously reform the Bar from a self-interested multi-million dollar lobbying bureaucracy imposing unreasonable restrictions on its members to one that protects its members’ interests within the confines of fair and reasonable regulation.
(Editor’s Note: The Professional Ethics Committee is currently considering adopting an opinion to help guide lawyers in responding to negative online reviews. In the meantime, Rule 4-1.6(a), states that “A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.” The comment further explains, “The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose confidential information except as authorized or required by the Rules Regulating The Florida Bar or by law.” There is no exception in the rule allowing disclosure merely because the information is in the public record.)
I clapped out loud after reading two recent letters to the editor — one titled “Diversity of Opinion” and written by Ernest Mullins and the other titled “Social Justice” and written by John DiChiara. Both letters hammered away at group think, the thought police, and so-called “social justice.”
As a lawyer, I am appalled by the double standard on everything and the trashing of the basic principles of our Constitution. We have a media that quotes anonymous sources to try to tear down our president and I ask myself, “how is that fair?” Imagine one of my accused clients being sent to prison based on the testimony of a ghost witness? How do you defend against that? We have a media that literally omits our president’s words, makes up his words, and re-arranges his words to try to undermine him. If I practiced such sophistry in court, I would be held in direct contempt and I very well should be. We have a media that does not even call witnesses on both sides when it comes to political issues, and when conservatives are allowed to participate, they are greatly outnumbered and ganged up upon by all of the others. How would you like to go into court and have the judge say you get zero or one witness and your opponent gets to call anyone he or she wants? We have a Congress that conducts confirmation hearings in which they declare people who disagree with them to be guilty by accusation and by innuendo, which is as un-American as it gets. We have congressional witch hunts that feature inadmissible hearsay, double and triple hearsay, rank speculation, gossip, partisan speech making, and the assuming of facts not in evidence and where certain witnesses get a free pass because of their left-wing politics but witnesses who are trashed because they dare to think differently.
On college campuses, try publicly expressing conservative or pro-Israel positions and just watch as the organized mob known as the thought police will incessantly try to intimidate you into silence. They will loudly and openly brand you a racist, bigot, fascist, and Nazi and they often engage in physical intimidation — all designed to get you to shut up. And these same thought intimidators will champion themselves as social justice warriors and advocates of diversity.
Our great Constitution was designed to promote freedom of speech, freedom of religion, freedom of expression, the right to a fair trial, due process, fundamental fairness, etc. However, the intolerant left and many of its supporters in the legal community are hellbent on stifling the opinions of those they politically disagree with on issues such as securing our borders, sanctuary cities, trade deals, taxation, law and order, capital punishment, gun rights, abortion, health care, and school choice.
As an American and as a constitutionalist, this lack of fundamental fairness and due process just shocks my conscience.