Special Committee for the Review of Professionalism in Florida ‘going in a good direction’
Gary Lesser
A poster child for unprofessionalism, the attorney yelled at judges and verbally abused his opposing counsel, an ailing, 71-year-old Korean War combat veteran.
The 2013 disciplinary case resulted in a two-year suspension and public reprimand — and helped spur what the Supreme Court has labeled the modern “professionalism movement.”
Now, the “Special Committee for the Review of Professionalism in Florida” is studying the case, other state procedures, and a host of materials, as it develops recommendations for improving the definition, teaching, and enforcement of professionalism.
The committee established three subcommittees at an inaugural meeting in July, and the “major ingredients” are coming together, said President-elect Gary Lesser, the committee’s co-chair.
“I think we’re going in a good direction,” he said. “We have three very active subcommittees working on the three component parts of what we’ve been charged to do.”
When he formed the special committee, President Mike Tanner said he was reflecting the concern Bar members expressed at nearly every stop on his statewide campaign.
In the latest Florida Bar Membership Survey, 32% of all respondents reported that “a lack of ethics/professionalism is one of the most serious problems faced by the legal profession today.”
The next greatest concern cited by Bar members, 29%, was “too many lawyers.”
“Now is the time we have to focus on our goals to really help the profession, now, in 2021,” Lesser said.
The committee has ample history to review.
In 1989, The Florida Bar Commission on Lawyer Professionalism proposed “Standards of Professionalism,” which the Board of Governors revised and adopted the next year as the “Ideals and Goals of Professionalism.”
In 2013, the Supreme Court added a “civility” clause to the Oath of Admission.
In 2014, the Standing Committee on Professionalism was directed to update the “Ideals and Goals of Professionalism” to reflect, among other things, advances in technology.
The Board of Governors adopted them in 2015 as the “Professionalism Expectations,” the latest iteration.
Kara Rockenbach Link, a West Palm Beach attorney and special committee member, served on the Standing Committee on Professionalism when it made the revisions.
“That was a facelift, if you will, on our standards of professionalism,” she said in a recent LegalFuel podcast. “The primary focus in updating them was to include electronic communications, emails, and the like.”
In In Re Code for Resolving Professionalism Complaints, Case No. SC 13-688, the Florida Supreme Court identified five documents that contain an integrated standard for lawyer professionalism:
• The Florida Bar Professionalism Expectations.
• The Florida Bar Oath of Professionalism.
• The Florida Bar Creed of Professionalism.
• The Rules Regulating The Florida Bar.
• The decisions of the Florida Supreme Court.
Elizabeth Hunter
One of the challenges the special committee faces, says Co-Chair Elizabeth Hunter, is refining the standards and integrating them even further.
“What we’re looking at is, is there a way to organize all this in a way that’s accessible to all attorneys, where you don’t have to search in different places to find what the expectations are?” she said. “And also, trying to package it in a more clean and accessible way.”
The Standing Committee on Professionalism adopted a definition that says, in part, that professionalism is “the pursuit and practice of the highest ideals and tenets of the legal profession.”
The definition stresses that professionalism is far more than “simply complying with the minimal standards of professional conduct.” It continues to say, “The essential ingredients of professionalism are character, competence, commitment, and civility.”
In Code for Resolving Professionalism Complaints, the justices wrote that professionalism “is not simply a matter of character or principles nor is it simply an issue of rule-following or rule-violating. To the contrary, unacceptable professional conduct and behavior is often a matter of choice or decisionmaking.”
When it comes to the education component, Hunter said the committee is focusing on the basic skills course required of new Bar members, CLE requirements, and how they reinforce professionalism throughout an entire career.
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 “an 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.”
The committee has yet to decide whether to recommend increasing the one-hour professionalism requirement, changing the way it is defined, or both, Hunter said.
“In order to get that credit, does it not have to overlap on some other topic, but really be an hour where you’re focused on the professionalism expectations in Florida, and what will that look like, and what kind of tweaking do we have to do?” she said.
The YLD is currently redesigning the basic skills course, Hunter said. One of the challenges with the basic skills course is that new lawyers can’t fully appreciate how the lessons apply to real life situations, she said.
When it comes to enforcement, the special committee hopes to build on the existing network of local professionalism panels that the Supreme Court order authorized for every circuit, the co-chairs say.
Professionalism panels are voluntary and lack authority to discipline an attorney, but they have been highly effective in correcting behavior before it rises to the level of a formal Bar investigation, Lesser said.
One of the challenges, Lesser said, is that the panels lack uniform procedures. Some panels are active, others have become inactive for lack of referrals, something Hunter says may be addressed with better promotion.
“What we are looking to do is have a very clear process where every professionalism panel functions the same, where we have a system where a professionalism referral either goes to the panel for handling, or to ACAP (Attorney/Consumer Assistance Program), which is what the court asked,” Lesser said.
Some local professionalism panels have asked the Supreme Court for more guidance when it comes to the question of confidentiality.
In the recent LegalFuel podcast, Tanner referred to anecdotal evidence that some attorneys may be hesitant to refer a colleague to a local professionalism panel, for fear of being labeled a snitch.
In the recent LegalFuel podcast, Rockenbach Link said the panels are highly effective educational and peer mentoring tools.
“When there is a judicial referral, we say, this is your lucky day,” she said. “The judge thinks that you have more potential. This is a reset button.”
The special committee’s recommendations are likely to include proposed procedural rule amendments. Others may require the Supreme Court to initiate action on its own, Lesser said.
“I hope to have a near-final product by the end of this calendar year, and to get Bar approval in the next meeting or two after that,” he said. “We’ll present it to the board and then we’ll present it to the court.”
