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Post lawyer disciplinary sanctions on the Web: panel studying lawyer regulation now putting together final report.

All Bar grievance actions resulting in disciplinary sanctions should be available to the public on the Bar's Web site, a special Bar panel is recommending.

The Special Commission on Lawyer Regulation wrapped up its preliminary recommendations at its September meeting and is now working on its final report to the Bar Board of Governors.

Panel members considered a wide range of issues at the meeting, from the role of board members who serve as designated reviewers in grievance cases to training for judges who sit as referees in grievance trials.

The recommendations will be included with those made at earlier meetings and compiled into a preliminary report, which will be reviewed by commission members and then forwarded to the board. The main recommendation from the earlier meetings is that the Bar's screening of potential grievances be dramatically increased, which has the potential of settling many complaints before they become formal grievance investigations and hearings.

The commission's recommendation on posting grievance information on the Bar's Web site was less sweeping than a policy recommended by Bar staff and a commission subcommittee. That policy would have had all information that is available to the public over the phone or in person by visiting Bar offices available on the Internet.

That would include not only all final grievance actions where discipline was imposed, but all letters of advice, all cases where probable cause was found but the lawyer later was cleared or found not guilty, and all closed complaints up to one year old, even if they were dismissed by Bar staff or a grievance committee. (Records of dismissed cases more than one year old are destroyed because of space considerations.)

"We have to be extremely careful," commission and Board of Governors member David Rothman said. "The Internet issue is relatively new for all of us. I don't want to do something that will damage lawyers and be difficult to retreat from.

"If you put a not guilty finding but probable cause was found, it could be difficult," he added. "That's not fair to the lawyers and it doesn't help the public. It will help the person who wants to defame a lawyer who was later found not guilty."

Commission member Tim Sullivan chaired the subcommittee which recommended putting online everything that is currently a public record and available by phone or by visiting the Bar. That would include, besides imposed discipline, closed cases that were dismissed by Bar counsels or grievance committees, and letters of advice sent to lawyers when a case is closed. In some cases, the Bar will also confirm the existence of an ongoing investigation.

He noted that Bar staff expected putting all records online would reduce demands on staff when requests are made over the phone, as well as produce consistency in that identical information would be available by phone, in person, or on the Internet.

Bar Counsel Tony Boggs also said the Bar gains credibility for its disciplinary operations by being open.

Ironically, Sullivan noted nonlawyers reviewing the issue were reluctant to put much information on the Bar's Web site. He noted that the Bar's Citizens Forum had discussed online access.

"They do not think the access should be as great as the subcommittee thinks fit should be," he said. "They did not think access should be on the Web or phone until probable cause should be found. They were much more protective of lawyers than we thought."

Sullivan attributed that to many forum members having served as lay members on Bar grievance committees and their seeing the large number of "garbage" claims filed.

Commission members generally agreed while broader information may be public, that doesn't mean the Bar is obligated to post it online. They also said online postings should contain instructions on how to contact the Bar to get complete access to public records.

The commission rejected the previously discussed idea of allowing lawyers to expunge records of minor misconduct after a certain period without further disciplinary problems. Posting the information online, they noted, effectively makes that moot.

Panel members also rejected the idea for more restrictions on information that is available by phone or in person from the Bar.

"It's retreating from what the public has access to now and I don't think we want to do that," said commission member and Fourth Circuit Public Defender Bill White.

On the designated reviewer issue, commission members debated whether there should be a better definition of the reviewer's role. (Every grievance committee has a Board of Governors member assigned as the designated reviewer.)

Board members noted there is no consistency into how reviewers perform. Some are willing to meet with grievance respondents and their lawyers before a case is heard by a grievance committee, while others won't. It's also left up to the reviewers whether they notify and invite the Bar counsel handling the case to such meetings.

"The Bar rules provide what the DR is, but doesn't define the job extensively," said commission and Board of Governors member Murray Silverstein.

Boggs said he asks reviewers not to meet with respondents or their counsel without notifying his staff "because you're not going to get that unvarnished view."

However, some commission members noted that early involvement of a designated reviewer can facilitate an early resolution of a case or a dismissal of a frivolous or groundless complaint.

The commission voted to refer the matter to the Bar's Disciplinary Procedure Committee, and recommended it draft guidelines for designated reviewers.

On referees, the commission discussed again whether only circuit judges should be allowed to hear grievance cases or whether county judges should continue to be assigned. They also discussed training for judges sitting as referees.

Eleventh Circuit Judge Ellen Leesfield, who chaired a subcommittee which looked at the circuit/county judge issue, said according to the Bar records there is very little difference in results between circuit and county judges who sat as referees. Some commission members in earlier meetings had voiced concerns that county judges had higher rates of overturned decisions at the Supreme Court or that they recommended lighter sanctions for lawyers who have broken the roles.

Accordingly, the commission decided not to recommend that only circuit judges be appointed as referees.

But commission members said they would like to see better training for judges sitting as referees.

"Circuit and county court judges all feel open to more training," Leesfield said. "My suggestion is we encourage the judicial education committee to do something at the new judges' college as well as at the circuit court judges' conference meetings and the county court judges' conference meetings."

Boggs said the state courts administrator is preparing a CD for referees to explain Bar rules, grievance procedures, their duties as referees, and a compendium of Supreme Court grievance rulings. He also said his office is looking at having circuit-by-circuit training sessions for interested judges.

The commission voted to recommend to the Board of Governors and the Supreme Court that judges have mandatory training, but did not specify how that should occur.

On other matters, the commission:

* Recommended the maximum time of probation for cases involving mental health treatment be extended from three to five years. Boggs said mental health professionals have said that three years may not be sufficient to ensure full treatment and recovery.

* Took no action after discussion whether there should be stricter guidelines for Bar counsel when they recommend a sanction to the referee in a discipline case. Commission members said that would be akin to sentencing guidelines in criminal cases and might ultimately work to limit the Supreme Court's broad authority to impose a specific penalty.

* Agreed that no changes should be made on the right of a lawyer to appeal a referee's recommendation to the Supreme Court and to give the court discretion on whether to accept such an appeal. Commission vice chair and former Justice Major Harding said the court is not overwhelmed with grievance appeals. Added Bar President-elect and commission Chair Hank Coxe: "I'm not inclined to tell our membership we're taking away their right of review when we're talking about their livelihood."

Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
Date:Oct 15, 2005
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