March 27, 2015

Of Counsel

Contempt of court: Florida's unruly lawyers

Art Levy | 1/31/2014

The state's judiciary system steps up its efforts to discourage unprofessional behavior.

By the late 1980s, complaints about rude and unprofessional behavior among Florida lawyers had become so frequent that the Florida Bar created a task force to study the problem. After seven years of research, the committee issued a report that described the state of professionalism among lawyers as being in "steep decline."

Efforts by the Bar to improve the situation included education programs that stressed the importance of civility. Florida attorneys heard plenty of speeches on the topic, and many attended panel discussions and meetings at both the local and state level.

The complaints — originating from judges, clients and other attorneys — actually increased during the recession, however, as more lawyers found themselves competing for the available business. Common problems included attorneys verbally abusing each other and acting disrespectfully toward judges.

Florida Supreme Court Justice R. Fred Lewis, chairman of the Florida Commission of Professionalism, says the Bar spent the last two years studying the issue and discovered that "every survey that we were able to find listed professionalism as a major problem for most lawyers and judges." The commission concluded, Lewis says, that the academic approach needed to be supplemented. So, last June, the Florida Supreme Court issued a nine-page decision outlining a more aggressive approach.

The court instructed each of the state's 20 judicial circuits to create professionalism panels, where attorneys, judges and clients can report unprofessional conduct.

The panels will screen the complaints and forward serious violations to the Florida Bar — which could lead to sanctions, including suspensions or even disbarment. For complaints that don't rise to the level of code violations — insulting a lawyer or a witness during a deposition, for example — the panels can choose to simply counsel the offending lawyer to do better.

The panels won't have the authority to impose punishment — at least not yet. Each panel will report to the professionalism commission quarterly.

The data on the number of complaints and how the complaints were handled will likely determine if the panels get additional powers.

"This is the first step to see if we can, within the profession and with the advice and counsel of our peers in local communities, start turning the tide," Lewis said. "It's a mechanism to call them in and sit down and talk about it. Hopefully, we can improve professional behavior and do it without having to have huge disciplinary punishments right off the bat."

So far, at least seven of the state's circuits have established professionalism panels, including courts in Escambia, Lake, Pinellas, Hillsborough, Volusia, Indian River, Palm Beach and Broward counties.

William R. Clayton, a shareholder at Greenburg Traurig in Fort Lauderdale, is a member of the Broward panel, which started work last fall. The goal, he says, is to "get the offending lawyer on the right track and not repeat the conduct."

Clayton, who has practiced law in Florida since 1985, says civility among lawyers has clearly declined.

"I would say that 20 years ago a lawyer being rude, offensive or who engaged in name calling, you would see that occasionally and only generally by certain lawyers who had a reputation for not acting properly," he says. "I would say within the last 10 years and, even more within the last five years, I've seen a greater deterioration among conduct between lawyers."

Clayton points to The Florida Bar v. Norkin as an especially egregious example of declining civility in the courts.

The Florida Bar first filed a complaint against Jeffrey Alan Norkin in 2011, alleging that the Plantation attorney "engaged in numerous acts of misconduct by behaving in an unprofessional and antagonistic manner during the course of litigating a civil case." The Florida Supreme Court suspended Norkin for two years and wrote in the case's 2013 decision that Norkin's "unprofessional conduct is an embarrassment to all members of the Florida Bar." Among the allegations: Norkin yelled at judges, interrupted judges and accused opposing lawyers of illegal behavior.

Lewis speculates that multiple factors are behind the trend. First, Florida has never had so many lawyers. As of September, the Florida Bar had 96,412 members — compared to 45,000 in 1990 — and the competition among them is fierce.

"We have lawyers fighting for dollars and business and cases, and I think that's one of the items that tends to inflame behavior," Lewis says.

The recession didn't help, either. When firms slowed hiring and then began to cut jobs, more attorneys, including recent law school graduates, became sole practitioners, meaning they didn't have easy access to mentors to guide them and hold them accountable for their behavior.

Lawyers themselves — via billboards and in television commercials — promote the impression that the best attorneys are the toughest and most aggressive.

Lewis says that's not always so.

"The greatest lawyers, and the lawyers I admired the most were good, wonderful lawyers, but also ladies and gentleman," he says. "Those are the attorneys who get the clients. I don't know why the folks who are so nasty think that's what draws clients because I believe that it turns people off. I think it turns off members of the judiciary. Certainly, judges have to decide cases based on what the law is, what the Constitution is, not based upon the behavior of the lawyer. But I'm going to tell you what: I have seen many, many courtrooms where the obnoxious litigator, the nasty-mouth individual who wants to do anything and everything to win, certainly doesn't receive any breaks and doesn't receive the positive end of discretionary type things. It doesn't help them."

"Hopefuly,"says Florida Supreme Court Justice R. Fred Lewis, "we can improve professional behavior and do it without having to have huge disciplinary punishments right off the bat."

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