Part of your permanent record: board returns to administering public reprimands.
Ties are straightened. Blouses are smoothed. Suit jackets are donned. Pens are capped, and cells phones are turned off.
The Florida Bar Board of Governors is seated in a hotel meeting room at tables formed into a square. President Frank Angones presides over the meeting from the podium. The room is pin-drop quiet.
The administration of a public reprimand is beginning.
Escorting the lawyer who is to be disciplined is the Bar's director of lawyer regulation, Ken Marvin, and the pair proceeds to the center of the square and halts in front of Angones, with Marvin a step behind and to the side of the lawyer.
On the rare occasion that the lawyer, through nervousness, insouciance, or bravado, has his or her hands in pants pockets, the Bar president invariably orders the hands be placed at his or her side. The lawyer is asked to state his or her name and place of practice.
Angones proceeds with reading the reprimand, as ordered by the Florida Supreme Court, which is a mixture of boilerplate language and details of the lawyer's offenses.
"In the representation of a client, you failed to provide competent representation and failed to act with reasonable diligence and promptness. Furthermore, you failed to respond, in writing, to an official inquiry by Bar counsel when the Bar was conducting an investigation into your conduct. In the representation of another client, you were held in contempt for knowingly disobeying an order of the court," the president tells one lawyer being reprimanded.
"As an officer of the court, you are required to follow any judge's order whether you agree with it or not. Additionally, neglect of a client's case casts doubt in the client's mind concerning the fair and impartial administration of justice. Actions such as yours reduce respect for the legal profession and diminish the effectiveness of our system of justice."
After a few more words, the lawyer is dismissed, and another is escorted to the center of the square. Board members take their disciplinary duties gravely.
"Everybody on the board takes it seriously, and they should because it's a serious moment for the person being disciplined. I think there is a due amount of reverence from the board toward it," said board member Jesse Diner.
Board public reprimands at one time were common, but had been largely abandoned in recent years because of concerns the experience might be more humiliating than instructive or punitive. But based on the unanimous recommendation of the Special Commission on Lawyer Regulation, the board has returned to administering public reprimands. Eight to nine reprimands per board meeting have been conducted since the practice was reinstituted this year.
"I think when you bring an individual in front of 52 other professionals [on the board] like him, and you put him in the center and he's all alone and you tell him what he did wrong, and you were lucky this time but next time you will not, that is extremely embarrassing and it makes a point," Angones said.
Former Bar President Hank Coxe has perhaps a unique perspective on the public reprimands. He led the effort to end the board public reprimands and then presided over the Special Commission on Lawyer Regulation which advocated their resumption.
Coxe said reprimands were like admonishing a child or employee--something best done one-on-one rather than in front of siblings or fellow employees lest the person feel humiliated and miss the point of the reprimand.
But he found members of the special commission had a different view, including its public members. The commission voted unanimously to recommend that public reprimands again be administered in public at board meetings--including one administered by Coxe before his presidential year ended.
"I do have great respect for the community thinking of everyone," Coxe said.
"The input from the nonlawyers and the input from the Citizens Forum were so overwhelmingly in favor of it, but so were the judges and lawyers."
Coxe said about the time the board began phasing out the reprimands, the Supreme Court began administering public reprimands of judges in Judicial Qualifications Commission cases on oral argument days. These reprimands were broadcast on TV and the Internet.
"The fact that these proceedings are open to the public and are televised enhances the credibility of the court to ensure that judges comply with the canons of judicial conduct," said former Justice Major Harding, who not only served on the Special Commission on Lawyer Regulation but also was on the court when it began its public reprimands. "I am sure that it is not a pleasant thing for the judge. And I am sure that anyone interested would try to conduct themselves in a manner not to be afforded that opportunity."
Although Harding noted the judicial reprimand generally will attract more attention than the public reprimand of a lawyer, an October 5 Board of Governors' reprimand drew considerable local media coverage as the discipline case had stemmed from a high profile murder case.
"In the representation of a client in a criminal case, you communicated about the subject matter of the representation with a person you knew to be represented by another attorney without that attorney's consent," Angones told that attorney. "Additionally, while the grievance committee had insufficient evidence to find that you tampered with a witness, there is no doubt that you made a surreptitious payment to that witness. Your incredibly poor judgment in making that payment caused the governor to appoint a special prosecutor to investigate the matter and caused the public to lose confidence in the legal system.
"You are an experienced lawyer. Not only should you know better, but you do know better."
One newspaper reporter wrote the reprimand was a "humiliating" experience for the attorney, and the attorney, who passed a polygraph that he never intended to break any laws or rule, acknowledged in the South Florida Sun Sentinel, "The appearance of it, bringing shame to the Bar and shame to me, is mortifying...."
Miami attorney Barry Wax agreed a public reprimand is a sobering experience for an attorney. He was at the October meeting as an invited guest as president of the Miami Chapter of the Florida Criminal Defense Lawyers Association. In addition, an attorney he represented in a grievance case was receiving a reprimand for an advertising rules violation, which, he noted, did not cause harm to clients.
"I found the process to be very somber, and meaningful. To see fellow attorneys come before a room filled with their peers and be reprimanded for conduct unbecoming an attorney at law is something that every member of the Bar should probably see at some point in their legal career," Wax said. "There's no question that it's a very humbling proceeding, and if the goal is to deter future misconduct, it is certainly effective."
Diner has noticed a different style of Bar presidents in delivering reprimands.
The first one he saw provided the greatest impression on Diner who had attended the reprimand while chair of a grievance committee that had handled the case. The reprimand was administered by Bar President Gerald Richman (1984-85). "Gerry's style was very powerful and it sure scared the hell out of me," he recalled.
Diner was quick to add that scaring lawyers is not what public reprimands are about. "Discipline is not about punishment; it's about rehabilitation. I've never looked at public reprimands or any other form of discipline as punishment for doing something wrong," he said.
"The Florida Bar was notified that a $50,000 check deposited to your trust account was twice returned by your bank for insufficient funds. The check was eventually honored and no client suffered any loss. As a result, The Florida Bar conducted an audit which revealed that you failed to maintain minimum trust accounting records and failed to follow minimum trust accounting procedures required of members of The Florida Bar," Angones told a lawyer reprimanded in October.
Another attorney was told: "You were held in contempt after a court of competent jurisdiction found you had willfully failed to timely pay child support. Not only did you fail to comply with a court order, but you jeopardized the welfare of your own children. Attorneys have a unique place in our system of government and when you showed disrespect for the court, you damaged not only our reputation, but you harmed the legal profession as a whole. Actions such as yours reduce respect for the legal profession and diminish the effectiveness of our system of justice."
Board member David Rothman, co-chair of the Disciplinary Review Committee and a member of the Special Commission on Lawyer Regulation, said, "Perhaps the discipline system is the single most important aspect of The Florida Bar, and the whole intention is to protect our clients, protect citizens, and make the profession the best it can be. I think the public reprimand helps."
Board member Steve Chaykin suggested in October that the board could underscore the seriousness and gravity of the reprimand process by videoing the reprimands and posting them on the Bar's Web site.
Rothman said in theory he supports that idea, but is concerned that third parties could copy such videos, alter them, and then repost them on YouTube or similar sites.
Diner had similar reservations.
"That further exacerbates the reprimand for the individual, but it might send a message to the Bar and the public about what the Bar does," Diner said. "While there is a benefit in letting the Bar and the public know what a reprimand really means, we have to bear in mind that the person being reprimanded is a human being who made a mistake that perhaps anyone could make."
The public reprimands always end with this admonition from the Bar president: "This public reprimand is now part of your permanent Florida Bar disciplinary records. You are further advised that while this public reprimand does not affect your privilege of practicing law, future misconduct will. The lawyers of Florida expect your future conduct be in compliance with your oath, and you should demand the same of yourself."
By Gary Blankenship
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|Publication:||Florida Bar News|
|Date:||Dec 1, 2007|
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