Special committee reviewing professionalism eyes uniform standards for local professionalism panels
Gary Lesser
Should Florida lawyers face more rigorous professionalism CLE requirements, and local professionalism panels, bolstered by more uniform standards, be more active statewide?
Those are just some of the recommendations discussed by the Special Committee for the Review of Professionalism in Florida, at a September 20 meeting.
President-elect Gary Lesser, the committee’s co-chair, said the panel could submit recommendations for improving the definition, training, and enforcement of professionalism to the Board of Governors as early as January.
“We do have an opportunity here to move the needle,” Lesser said.
Lesser stressed that the special committee’s recommendations will be “tangible” and could include everything from proposed rule amendments to administrative orders offered to the Supreme Court.
Elizabeth Hunter
The 20-member special committee is co-chaired by Elizabeth R. Hunter, who also chairs the Standing Committee on Professionalism that includes judges, legal scholars, Florida Bar board members, and practitioners who specialize in disciplinary proceedings.
When he unveiled the special committee earlier this year, President Mike Tanner said he was responding to concerns Bar members raised at nearly every campaign event.
Lack of professionalism consistently ranks among the highest concerns in Florida Bar member surveys, along with the perennial observation of “too many lawyers.”
The 2021 Florida Bar Member Survey, emailed to nearly 4,000 lawyers and generating a robust 34% response rate in February, was no different.
A sizeable majority, 57% of respondents, said they would approve of “stronger methods” to enforce professional standards, with a mere 11% opposed to stronger enforcement, and 32% unsure. More than half, 54%, believed stronger enforcement by judges would be the most effective for addressing unprofessional behavior.
“A significant problem is the behavior of lawyers who believe that being nasty, abusive, and insulting is a reasonable litigation tactic,” wrote one member in an anonymous response.
“I’ve had to deal with attorneys that behave like wild animals, screaming profanities, threatening to ‘destroy you’ on the phone,” wrote another.
Jamie Billotte Moses
Orlando attorney and special committee member Jamie Billotte Moses, a partner with Holland & Knight, said too many senior attorneys, usually males, act unprofessionally to intimidate their newer or female counterparts.
They get away with it too often, Moses said, because they rarely face consequences.
“It’s very frustrating that a judge doesn’t say something or do something,” she said. “It’s the everyday, ‘look here little lady,’ and stuff like that.”
Moses said the local professionalism panels that the Supreme Court created in 2013 in In Re: Code for Resolving Professionalism Complaints, Case No. SC 13-688, function well in some judicial circuits, but are dormant in others for lack of referrals.
Some panels include judges, some don’t, some keep records of their cases, others don’t, Moses said.
“They’re all run very differently, and therefore, getting different results,” she said.
One of the most active panels, serving Miami-Dade County in the 11th Circuit, recorded handling 24 cases in its most recent annual report, said Miami criminal defense attorney and special committee member David B. Rothman.
“We’re not getting any traction,” Rothman said, adding that too few Bar members are aware the panels exist.
Local professionalism panels lack authority to discipline lawyers but have proven successful in helping lawyers identify their unprofessional behavior, and correct it, before it leads to a formal Bar investigation, special committee members say.
A former member of the Board of Governors and a former chair of the Disciplinary Review Committee, Rothman represents lawyers and judges in discipline cases.
None of the cases he has handled, Rothman said, resulted in a referral to a local professionalism panel.
The Bar received some 8,000 complaints in 2019, but only a small fraction, 325, resulted in a disciplinary action, suggesting that the overwhelming majority of the Bar’s nearly 110,000 members live up to the high standards the profession demands.
But only a small fraction of Bar members know how the Bar disciplinary process works, Rothman said.
Special committee member Kirsten Davis, a Stetson University School of Law professor who teaches professional responsibility, said the committee is reviewing the Bar’s integrated professionalism standards.
In its 2012 order, the Supreme Court identified these 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.
“The information is hard to find, lots of people don’t know about the [local professionalism panels], for example,” she said. “Do we have the correct procedures with regard to bringing professionalism complaints? We’re also looking at the standards side, do the standards make sense, what should the definition of professionalism be?”
In the 2021 Florida Bar Member Survey, 41% of respondents said they felt the integrated standards “very adequately” define what it means to practice with professionalism. Another 34% said they “somewhat adequately” define practicing with professionalism.
Miami attorney and special committee member Jeffrey Michael Cohen, of counsel with Carlton Fields, chairs the Education Subcommittee.
Law schools focus appropriately on teaching professionalism, but that training tapers off dramatically after law students graduate and become Bar members, Cohen said.
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.”
Cohen said professionalism training after a Bar member is admitted is “basically non-existent.”
“It appears that law school is where the money is in terms of teaching professionalism,” he said. “I think that we need to improve upon that.”
According to the 2021 Florida Bar Member Survey, an equal number, 40% of respondents, felt more training is needed, and 40% of respondents felt the amount of training provided is “just right.”
Lesser said one of the biggest lifts the special committee faces is public awareness. The Bar will work closely with local affiliates and all voluntary bar associations to get the message out, Lesser said.
“I do feel confident that when we complete our work, lawyers will know, because this is going to be a full-court press,” he said.
