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‘The court’s scrutiny of unprofessional conduct gets greater and greater every year’

Senior Editor News in Photos

Roadmap to DisciplineThe Florida Bar receives about 8,500 complaints against lawyers every year, with some 350 of those leading to some form of disciplinary action.

The good news is that the figures confirm that most lawyers uphold the high standards the profession demands, says Patricia Ann Toro Savitz, staff counsel to The Florida Bar’s Division of Lawyer Regulation.

“The large majority of all of us are doing excellent work,” she said. “There’s a very small amount of public discipline.”

But with almost 110,000 lawyers in Florida and the number growing, the Supreme Court is sending an increasingly stronger message to transgressors, Savitz said.

“The court’s scrutiny of unprofessional conduct gets greater and greater every year,” she said.

Savitz joined a panel of experts June 10 for the 2021 Masters Seminar on Ethics for “Grievances 2021: Who is Getting into Trouble, Why are they Getting into Trouble, and How are they Being Punished?”

Lawyers who violate the rules are risking tougher sanctions, Savitz said.

She cited The Florida Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015).

In that case, the court explained that since its decision in The Florida Bar v. Bloom, 632 So. 2d 1016 (Fla. 1994), the court has moved toward imposing stricter sanctions for unethical and unprofessional conduct.

In the Rosenberg case, Savitz noted, the referee recommended a 90-day suspension. Justices ordered a two-year suspension.

In the Bloom case, the justices wrote “In a sense, ‘an attorney is an attorney is an attorney,’ as much as the military officer remains ‘an officer and a gentleman’ at all times.”

Savitz said lawyers would be wise to remember those words. Lawyers have been disciplined for conduct that occurs far outside of a courtroom.

“You cannot just take off your lawyer hat, this is a reminder, it’s on the books,” she said. “Everyone has their eyes on us, all the time.”

Over the years, Savitz said, the primary issues that give rise to Bar complaints have remained fairly consistent – lack of communication and diligence, conflicts of interest, failure to respond to the Bar, professionalism, and trust account issues.

Among the most frequent, she said, are trust accounting issues and failure to communicate with a client.

Lawyers also run in to trouble for failing to respond to communications from the Bar, which can lead to a temporary suspension, she said.

If they receive a complaint, lawyers should weigh their options carefully, she said, adding they should never respond in haste.

“Stop and breathe, read it at least twice, put it some place where you can come back to it,” she said. “Never, ever, ever, ever, send in your first draft.”

Have a colleague or partner read the response before sending it, Savitz suggested, and consider hiring counsel.

Moderator Caroline Johnson, a lawyer with the U.S. Department of Veterans Affairs, reminded the audience that what a lawyer posts on social media can lead to disciplinary action.

“In Tennessee, a lawyer was disbarred for a Facebook post,” she said.

A member of the Professional Ethics Committee, Johnson has served on the Florida Supreme Court’s Commission on Professionalism. She is a former chair of the Bar’s Professionalism Committee and is the primary author of the Bar’s “Professionalism Expectations” (SC15-944).

The Professional Ethics Committee is currently studying how lawyers can ethically respond to critical reviews on the Internet, Johnson said.

Even an angry email can get a lawyer in trouble, Johnson said.

“I’d advise that they consider it a written letter,” she said. “Use the same formality.”

Tampa attorney Donald A. Smith, Jr., of Tozian, Daniel & Davis, joined Savitz as a presenter. A former prosecutor and Bar staff counsel, Smith represents attorneys in Bar grievance proceedings.

Many lawyers think they are complying with the Bar’s trust accounting rules because they hired an accountant, Smith said, but that’s not always the case.

“Be mindful that not every CPA or accountant truly understands The Florida Bar’s Trust Accounting rules,” he said. “Learn the trust accounting rules.”

A good way to avoid complaints is to carefully manage communications with clients, Smith said.

“The age-old source of Bar complaints, not necessarily discipline, is a lack of reasonable, prompt, and adequate communication with clients,” he said.

Lawyers should remember that their clients view cases differently, he said.

“Clients are sitting at home, worried sick about their case,” he said. “You have hundreds of cases, thousands and thousands over your career, but for the average client, it’s the only case they’ve ever had.”

Smith says lawyers should take time to document each communication with a client and have an assistant or subordinate available to answer client calls when unavailable.

Managing client expectations is also important, Smith said.

“Every client thinks they are going to get the $10 million that the lady got who got McDonalds coffee spilled on her,” he said.

Lawyers who want to learn more about the process should get involved in Bar activities, Savitz said.

“Consider joining a grievance committee, you will learn a lot,” she said. “It’s a good way to be part of the process and learn the public perception of what lawyers do.”

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