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Questions for the Bar president-elect candidates

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Michael Tanner and Renee ThompsonThe following questions were posed by the News to Bar president-elect candidates Michael Tanner of Jacksonville and Renée Thompson of Ocala. Ballots for the contested election will be emailed or mailed to eligible voters around March 2. Voters will have the option of voting online in lieu of returning their paper ballot. All votes must be received before midnight, March 23.

1. In response to the “rapidly changing” environment in which legal services are provided, the Supreme Court has asked the Bar to launch a comprehensive study of issues related to the regulation of the legal profession, including focusing on lawyer advertising, referral fees, fee splitting, entity regulation, regulation of online service providers, and regulation of nonlawyer providers of limited legal services. What can the Bar do to help its members successfully compete in this changing world?

Tanner: As a practicing lawyer who represents clients in our courts, I experience the changes underway in the delivery of legal services, particularly litigation services, my practice area.

To help our members successfully compete in this changing world, The Florida Bar must, above all, be adaptable to change, meaning the following:

First, we must remain a strong, unified bar. A unified bar is best able to offer our members quality education programs, useful member benefits (lawyer referral services, vendor discounts, and the like) and quality career enhancement opportunities (section and committee work) — all at the lowest cost to our members.

Second, we must educate our members to look objectively at our current rules and practices and be open to new ways of doing things and seek new opportunities. We cannot know precisely what legal services clients will demand in 2025 or beyond. Perhaps some of what we do now, both in litigation and transactions, will be done with artificial intelligence. The opportunities for future lawyers may be in new practice areas, such as legal data analysis, litigation process management, or other emerging fields. Whatever the future holds, we must open-mindedly adapt our education, programs, and benefits to these changes.

In December 2019, the Florida Supreme Court directed the Bar to study potential changes to our advertising rules, referral fee rules, entity regulation rules, and others, to make sure we deliver legal services in the best possible way for the public. We must embrace that study and be flexible about its results, so long as any potential changes in our rules preserve the independence of our profession and our branch of government.

Thompson: The Bar can and will continue to serve many roles in helping its members to thrive in the modern world, and this study will be important in helping to further refine and perfect rules that will not only ensure fair and consistent regulation of our profession, but will assist lawyers to be competitive and successful. Years of thoughtful deliberation inform our current rules and their interpretation, but a fresh look at not only substance but procedure can help to advance the needs of the profession for today’s practice. Streamlining some areas for ease of understanding will be necessary, in addition to looking at ways in which our current rules are potentially putting lawyers at a competitive disadvantage with nonlawyers. Clearly, many of these regulatory issues involve the role of nonlawyers and nonlawyer entities in the practice of law, and competition between lawyers and nonlawyers. It is critically important that the Bar continue, as it has in the past, to prioritize the interests and concerns of its constituent members, putting Florida’s lawyers first while at the same time also protecting the public. After the study is complete and its findings are known, the Bar can help to educate the membership, as well as the general public, to understand any rule or policy changes and why changes were made. Keeping members as knowledgeable as possible regarding regulatory changes is critical in order to ensure compliance with the rules, helping them to successfully compete while avoiding possible discipline issues.

One of the key initiatives the Bar can do to help its members successfully compete in this changing world is to continue to grow its Lawyer Referral Service program. While the technology now exists making it a robust platform, the Bar must prioritize its growth and presence for it to be a reliable place the public looks to find a Florida lawyer.

2. What do you see as the primary role of the Board of Governors?

Thompson: Subject to our Rules, the Board of Governors works as a policy-making body for our Bar for its many activities.

Tanner: In practical terms, the Board of Governors has two primary roles: First, it assists the Florida Supreme Court in regulating our members by overseeing the disciplinary process; and second, it sets the policies by which the Bar and all of its constituent groups operate. The overriding purpose in every board action is, and should always be, to serve and protect the public while improving the administration of justice.

3. What drew you to Bar work?

Tanner: Very early in my career I was encouraged to get involved with The Florida Bar by a senior lawyer whom I admired and respected. He said involvement with the Bar is the best way to give back to a profession that is so important to our society.

My first work for the Bar was service on Grievance Committee C for the Fourth Circuit. I served a three-year term, finishing as chair in my last year. There I developed an appreciation for the fairness and integrity of our discipline system. I learned the importance of mentoring so that new lawyers avoid the mistakes that generate grievances. Assisting the Court in regulating our members is one of the core functions of the Bar, and I encourage all of our members to serve on a grievance committee.

After my grievance committee work, I served on the Executive Council of the Trial Lawyers Section and later on the Board of Legal Specialization and Education. I eventually served as chair of both groups.

Later, as a co-founder and manager of a small litigation firm, I saw the value of the Bar’s member benefits. They helped us navigate the challenges that small firms face.

These experiences taught me that my mentor was right — Bar service is certainly a terrific way to give back, but I didn’t realize how much I would benefit personally. My hope for all of our members is that they too will benefit from service to the Bar.

Thompson: Volunteer work has always been a part of my life in some way since I was young. I enjoy working on large-scale projects, so Bar work was a natural fit for me. I was fortunate enough to be exposed to voluntary bar service soon after law school, and I am grateful for the institutional knowledge and connections developed over years of Bar service and leadership.

4. What threats do you see to the unified bar structure and what would you do to address those threats?

Thompson: The current primary threat to the structure of The Florida Bar is the possibility of an adverse ruling from the United States Supreme Court on one or more of the cases currently being litigated which involve challenges to an integrated bar system, where mandatory Bar membership and payment of dues is required in order to obtain a license and practice law. These cases involve interpretation of the Court’s 2018 Janus vs. AFSCME decision, which addressed labor unions and state-extracted fees. While factually distinguishable from many of the considerations and issues implicated in any analysis of integrated bar procedures, if the Court ultimately decides that its Janus holding also applies to the legal profession, the Bar will be forced to undergo drastic changes to its structure and functions.

No less than 30 states, including Florida, have an integrated bar. While the risk is clear, the reality of our present situation is that very little, if any, of this problem is within the purview of Florida Bar leadership. It is worth noting that while the Bar has taken significant steps to address this threat and reduce its exposure to such a possibility, the decision will ultimately be made for us by the Court. While I personally would love to be able to meaningfully address these threats as president, it is up to the U.S. Supreme Court, and to that Court alone, to reach any decision that would affect our Bar.

There is, of course, that worst-case scenario in which the Court rules against integrated bars. However, should that nightmare become our reality, the needs of Florida lawyers will still exist, and the functions and services provided by our formerly integrated bar will still be needed. Therefore, The Florida Bar will very likely exist, in some form or another, in order to assist with the administration of the legal profession. In such an event, I am confident that the very same people and local voluntary bar associations that currently give so much of their time and talent to the profession will step up and help take on the challenge of picking up the pieces and rebuilding The Florida Bar. I am proud to have served for years with many of these people and entities, and I am confident that I could effectively coalesce these various forces if called upon to do so.

Tanner: Since 1950, we’ve benefited from Florida’s unified bar structure. But now, two related, but different, challenges threaten that structure.

The first arises under the decision of the U.S. Supreme Court in Keller v. State Bar of California, 496 U.S. 1 (1990). There the Court held it is permissible under the First Amendment to require lawyers to join a state bar association, and pay fees, so long as the bar confines its activities to “regulating the legal profession” and “improving the quality of legal services.” The important corollary of this is that The Florida Bar, which is funded by mandatory fees from its members, must avoid involvement in political or other issues that would be divisive among our members. In the years since Keller, our Bar has done an excellent job of following those directives and related directives from the Florida Supreme Court. But staying within Keller’s limits can be challenging because there is often the temptation — always well intentioned — to take positions on issues that are important to society, but would stray beyond our constitutional bounds.

I served for several years on the Board of Governors’ Legislation Committee (three years as chair or co-chair) and that experience has taught me the importance, and sometimes, the difficulty, of keeping our activities within Keller.

For these reasons, I would continue our vigilance to stay within our constitutional bounds and direct activities that go beyond Keller to local or national voluntary bar groups or, in some cases, to sections of The Florida Bar (which are funded with voluntary fees and are, therefore, not subject to many of the Keller limitations).

The second challenge we face arises from the U.S. Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018), which addressed public-sector labor union membership. That decision is the basis of several federal court lawsuits around the country challenging mandatory membership in state bar associations on First Amendment grounds. There are compelling arguments why mandatory bar membership is different than union membership, but ultimately, the Court will decide whether mandatory bar association membership is prohibited by Janus.

If we find ourselves in a post-unified status (and become a statewide voluntary bar as we were before 1950), we must then ensure that regulation of our profession remains exclusively with the Florida Supreme Court and retain as many of the benefits of our unified Florida Bar as possible through voluntary fees. The more we can persuade our members to see the value in joining a voluntary bar, the closer its programs and benefits could match those of The Florida Bar today.

5. What would you do to continue pursuing the Bar’s diversity and inclusion goal?

Tanner: The Florida Bar is fully committed to the enhancement of diversity within the Bar, the legal profession, legal education, and within the justice system. “Diversity” is intended to have a flexible meaning that adapts to societal changes to reflect differences in race, color, gender, religion, national origin, age, sexual orientation, and other differences. I believe this is critical to our Bar. To ensure our success in achieving this, I would do the following:

• Maintain our involvement in the selection of Florida’s judges through the JNC process. Without our Bar’s involvement, our goals of a top-quality and diverse bench would give way over time to purely political considerations.

• Reemphasize the Bar’s Get Involved initiative through which diverse members are encouraged to join sections and committees and apply for special appointments like standing committees, grievance committees, unlicensed practice of law committees, judicial nominating committees, and others. I will seek the active support of the Board of Governors and all section and committee leadership in this.

• Ensure that the recommendations included in the 2017 Report of the Special Committee on Gender Bias (approved by the Board of Governors in May 2017) are implemented to the maximum extent possible by our unified Bar within its constitutional limitations. To the extent some of those recommendations cannot be undertaken by a unified bar using mandatory fees, I would encourage voluntary bar groups to develop and implement best practice guides with respect to those.

• Increase the Voluntary Bar Association Diversity Grant Program to $75,000 (while keeping the current limits on individual and bar association grants). This increases access for more voluntary bars and other groups to participate in the program.

Thompson: As the best Bar association in the country, we are in the position to bring light to important issues affecting our members, including the wage gap that women and minorities continue to experience in the legal profession. I would look for ways to find a broader audience for this important programming, maybe in a firm setting, or through web-based education. I also believe the Bar should continue to foster its relationship working in cooperation with the Governor’s Office to ensure the judiciary attracts the best, the brightest, and the most vibrant, from all across our membership.

6. Has the Bar’s efforts to promote the health and wellness of its members made a difference? What are your goals in this area?

Thompson: The efforts of the Bar to promote wellness have made a difference in the lives of many Florida lawyers. The Bar has recently made great strides in fostering mindfulness among the membership and increasing the availability of, and access to, various health and wellness related services and products. For example, we can now access a comprehensive website that details the many member benefits and resources offered by the Bar. The Bar also works to increase awareness of the numerous mental health related issues that affect our profession, doing so in a manner that helps to diminish negative and often unfair stigmas associated with individuals that are served by health and wellness initiatives. However, the degree to which this awareness has made a difference among the general membership is an ongoing issue. As we all are aware, the practice of law is often stressful, and more must be done to help members cope with this burden in a productive and healthy way.

My goal in this area is to achieve an even closer level of communication and cooperation between the Bar and the many volunteer bar associations that serve the health and wellness needs of their membership. These organizations, which routinely conduct local and regional events and activities that promote the health and wellness of their members, are many times best situated to know and serve those in need of assistance. However, the Bar can only do so much to mitigate the many negative effects of unchecked stress, or to assist our members afflicted by mental illness. In that regard, I fully support the concept of an emergency hotline that Bar members could access in times of crisis, something that is unfortunately not currently provided.

Tanner: The Bar’s efforts to promote health and wellness has been an important step to improving the well-being of our members.

Ours is a tough job. We take on other people’s problems and make them our own, leading inevitably to emotional investment, at some level, in every matter we handle.

My goal on this issue is to address in a meaningful way one cause of the stress that is affecting our health and wellness — unprofessional behavior.

The data is clear that stress is a key factor in mental illness and other disorders, and multiple Bar surveys of our members have identified unprofessional behavior as a major source of stress. We must address this. In 2011, the Florida Supreme Court added the “civility proviso” to the Oath of Admission. In 2013, the Court adopted a detailed, integrated set of professionalism standards (updated in 2015) and adopted a code for resolving professionalism complaints through the local professionalism panels. It’s time to educate our members about these standards and begin to enforce them.

Too often I hear our members say unprofessional behavior is now endemic in our culture, and there’s nothing we can do about it creeping into our profession. I say they’re wrong. We can make a difference. I expand on these thoughts in an article that appeared in the January edition of The Professional, the newsletter of the Henry Latimer Center for Professionalism. Please also listen to the Legal Talk Network podcast which I moderated on this issue in October 2019.

7. Is the Bar relevant to the typical small-firm lawyer? What can the Bar do to help those practitioners?

Tanner: Surveys of our membership by The Florida Bar over several years indicate that most of our members in small firms do not actively participate in Florida Bar work. Many, perhaps most, of those lawyers don’t feel the Bar is relevant to what they do. If so, we must work to educate them about the value of their membership from Bar resources such as:

• The LegalFuel Practice Resource Center, which provides resources in technology, marketing, finance, and other aspects of practice management.

• The Florida Bar’s Lawyer Referral Service, which generated more than 38,000 referrals to our members in 2019.

• Product and services discounts from vendors in banking, legal research, insurance, legal forms, and other services.

• Mental health and wellness resources, including the Young Lawyers Division’s award-winning Stigma Free program.

More fundamentally, and as part of the Get Involved initiative through the Committee on Diversity and Inclusion, we can make a greater effort to reach out to and involve those lawyers in section and committee work, to enhance their practice skills, and allow them to build mentoring relationships and potential sources of work.

Thompson: More than 70% of Florida lawyers work in small firms of 10 lawyers or less. Many of our fellow attorneys, especially solo and small-firm practitioners, need updated resources to help them run their practices. Technology provides our members with the ability to streamline their practice management systems; for example, establishing a comprehensive solution to trust accounting with software that can ensure rule compliance, help with monthly reconciliations, and provide peace of mind for our members is a necessity. Many of our attorneys find themselves in the disciplinary system due to lack of compliance with the trust accounting rules and avoidable errors. The resulting discipline process, in turn, places an unnecessary burden upon the Bar’s budget. Equipping our lawyers with the proper tools can not only help our attorneys properly manage their practices, it can help the Bar’s bottom line. I practice law as a civil trial attorney and mediator. My background allows me to understand the needs of our solo and small-firm attorneys in today’s ever-changing marketplace. I understand the demands of running an office while keeping up with community and bar service, all while balancing the needs of clients.

8. What made you want to be a lawyer?

Thompson: I am a problem solver by nature. Even as a child, I felt an inner drive to help people with their issues and conflicts. I like people, and I enjoy the feeling that comes from helping someone to resolve a problem, lifting the burden off their shoulders. During my undergraduate studies, with a number of my close friends considering graduate school, I began to think about law school and the legal profession. I began to realize that for many lawyers, their job is a quest to help their clients solve their problems. That was something that interested me greatly, and the concept of being a professional that can truly help people to solve very difficult and complex problems is still something that I highly value. It is also something that drew me to the field of mediation. What made me want to be a lawyer is what makes me appreciate being a lawyer.

Tanner: I remember being intrigued when one of my high school English teachers explained that Shakespeare’s verse “let’s kill all the lawyers” from Henry VI was in fact a high compliment to our profession. Shakespeare’s point, of course, was that if you want to bring down a kingdom (or today a republic) you first undermine its laws.

Later, from studying history, I came to believe that ideas, and those who can communicate ideas, shape events. From that it was a natural choice for me to study law in order to be a part of what I believed then and believe now is the one great idea of our society — that our prosperity and our liberties depend on us being a society of laws, and that a society of laws starts with the work of lawyers.

9. Talk about one defining moment in your legal career when you stopped to think, “I am proud to be a lawyer.”

Tanner: For the reasons given in my answer to the last question, I’m proud to be a lawyer, and I enjoy telling people I’m a lawyer — especially if they’ve just told a lawyer joke.

It’s difficult to single out any one moment along the path of my career, but I’ll offer my first and most recent such moments.

During my first civil jury trial, my mentor, Dana Bradford, and I represented a young boy who had been playing baseball at a municipal ball field. When he slid into home plate, the white dust used to mark the baselines seriously injured his eyes. The baselines should have been marked with a safe, inert powder, but that day something different had been used. The jury returned a verdict in our favor, providing enough money to pay the boy’s medical bills and pay for future care for his damaged eyes.

The second occasion was in 2018 when I was contacted by an individual who became ill and was terminated from her employment. Because of the nature of her job, her employer was permitted to do that. She had very little money to live on and no prospects of further employment in her field. To make things worse, there were large financial claims against her from other parties. We eventually resolved the claims, without litigation, giving the client at least a clean slate to move on with her life.

The amounts involved in these cases were modest, but I will always believe that in both cases justice was done. I was proud to be a part of that.

Thompson: One defining moment for me when I have felt truly proud to be a lawyer was when the first class of the Leadership Academy graduated, and the fruits of the academy became clear to me. In 2013, former Bar President Eugene K. Pettis asked me to help him create and lead The Florida Bar’s Leadership Academy, where I served as the inaugural chair of the academy for the first two classes. Watching their individual energy and enthusiasm, their cohesiveness and cooperation, I began to understand the collective power that can be harnessed from such diverse and special talent. That first class set the bar high for the following classes, which in turn were each amazing in their own unique ways. The academy and its graduates are a testament to the vision of the Bar, a legacy that reflects the values and aspirations of the outstanding individuals who have helped to make the academy the success it is. The academy is a creation of the Bar, and I am indeed proud to be a Florida lawyer, knowing that I am a member of an organization that places great value in how it serves its membership. By developing a truly representative group of uniquely talented and trained individuals to work together in taking on the challenges of the future, our Bar has demonstrated considerable foresight and wisdom. I am proud that, being a Florida lawyer, I am a part of this effort to make the future brighter for all.

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