By Noreen Marcus,FloridaBulldog.org
Judges who want to punish lawyers for any reason now have a superpower that can derail careers, courtesy of the Florida Bar and the Florida Supreme Court.
A new rule effective in December grants judges far greater authority over lawyer discipline. The high court signed off on the recommendation from Bar leaders in an Oct. 21 opinion.
Florida lawyers who oppose the judicial oversight rule — privately, fearing retaliation — call it a power grab.
“This was all cranked up by activist political judges,” said a lawyer who is familiar with the disciplinary system but has not personally been disciplined.
“At a time in this country when suspicions are being raised that judges are political operatives, the Bar and the courts should do everything in their power to show that this is not true, to show that judges are fair and objective,” the lawyer said. “Passing things like this undermines public confidence in the judiciary.”
FAST TRACK FOR JUDICIAL REFERRALS
The lawyer is one of two Florida lawyers with knowledge of the disciplinary process who spoke to Florida Bulldog on condition of anonymity. This one is Lawyer A; the other is Lawyer B.
Normally a complaint that survives intake screening and isn’t diverted to lawyer assistance for mental illness or substance abuse is assigned to a grievance committee. This group of Florida lawyers and laypeople oversees an investigation by a Bar counsel and determines if there’s probable cause to file ethics charges against the tagged lawyer.
A finding of no probable cause ends the inquiry. A probable cause decision triggers a trial that can result in the Florida Supreme Court reprimanding, suspending or disbarring the lawyer.
But as of Dec. 20, judicial referrals of Florida lawyers have their own dedicated track. If a grievance committee rejects a judge’s complaint, it will get a second look from the Florida Bar Board of Governors. The board may veto the committee’s findings outright or restart the process, prolonging the lawyer’s agony, deserved or not.
“It’s taking away power from the Bar and reviewing their decision-making before the cases are even tried,” Lawyer B said. “It’s ludicrous.”
JUDGES POLICE FLORIDA LAWYERS
Miami lawyer Dori Foster-Morales, a divorce lawyer and the Florida Bar’s immediate past president, launched the committee that came up with the rule. She did not respond to an interview request or to questions from Florida Bulldog.
Reacting to misconduct in their courtrooms, judges trust themselves to police the Bar more than they trust the Bar to police itself. That’s at least one law professor’s take on the situation.
“The Supreme Court’s adoption of the new oversight rule appears to signal rising judicial frustration with both the incidence of lawyer misconduct and the efficacy of the disciplinary process in Florida,” Anthony Alfieri of the University of Miami School of Law told the Daily Business Review.
Asked to elaborate, he emailed a statement to Florida Bulldog saying his comment “was intended to explain the new rule, rather than justify the rule.”
Alfieri wrote, “There seems to be a fair degree of consensus” about “an increase in litigation-related misconduct, or at least unprofessional conduct.”
JUDICIAL REFERRALS DRAW ATTENTION
“The new rule demonstrates that in the absence of affirmative, ameliorative action by the Bar, then the Bench will step into the breach,” he wrote.
Yet that’s not how the Florida Bar marketed the rule. The Florida Bar News presented it as a response to unidentified judges who “have long complained” their referrals aren’t taken seriously enough.
In fact, Florida Bar records show that judicial referrals already command the lion’s share of attention. During the 2019-2020 fiscal year, out of 74 complaints from judges, 64 (86 percent) went to grievance committees. In the 2020-2021 fiscal year, which saw a 38 percent rise in these complaints, 81 out of 102 (79 percent) went to grievance committees.
In contrast, for the 2019-2020 fiscal year, out of 3,483 complaints from the general public, 228 (6.5 percent) made it to grievance committees. For the 2020-2021 fiscal year, the public submitted 3,262 complaints and 369 (11 percent) got to grievance committees.
Lawyer A said virtually all judicial complaints, even the ones that stop short of grievance committees, get some kind of acknowledgement and response.
COURT: NEW RULE ON FLORIDA LAWYERS ‘EFFECTIVE’
“I seriously doubt any were rejected outright,” Lawyer A said. “The Bar may have ‘counseled’ the lawyer and had the judge sign off on informal apologies from the lawyer to the court and promises to never offend again.”
“If the Bar wanted to protect the integrity of the process, [it] would file these complaints anonymously,” the lawyer said. “Why do you have to know who the complainant was? It serves no purpose other than to satisfy the judge that his complaint is being heard and they know he filed it.”
The Florida Supreme Court’s unanimous Oct. 21 decision adopting the new rule alludes to a “most effective and efficient process to address judicial referrals of lawyer misconduct.”
The justices rejected a Board of Governors recommendation of a 30-day deadline, extendable by monthly increments, for the justices to act on these disciplinary matters. “The Bar does not identify a specific need for these restraints,” the unsigned opinion explains.
Lawyer B identified a specific need: Lawyers living with unresolved Bar complaints have a right to closure at some point.
The court’s Oct. 21 ruling “suspends all time periods, so there’s a sword of Damocles over your head and you have no right to a speedy resolution,” Lawyer B said.
COULD BAR LOSE MANDATORY DUES?
That’s Daniel Uhlfelder’s dilemma. By suing Gov. Ron DeSantis early in the COVID-19 pandemic for his soft focus on public health, the Santa Rosa Beach lawyer made some appellate judges very unhappy.
They have taken extraordinarily punitive steps in response and the sword is still hovering over Uhlfelder’s head. On Feb. 5, judges on the First District Court of Appeal in Tallahassee damned as “frivolous” his lawsuit against DeSantis and referred Uhlfelder and his lawyers to the Bar for discipline.
Days later, the judges tasked the prosecutor in Uhlfelder’s home county, Walton, with bringing a criminal-contempt charge against him. Every month State Attorney Ginger Bowden Madden reports to the court on her progress.
Meanwhile, the Bar was developing a rule that gives lawyers like Uhlfelder little chance of escaping the wrath of judges like the First District panelists who seem determined to end his career for reasons that appear more political than legal.
“The Florida Bar may have just crossed a line,” Lawyer A said. Federal courts have long upheld the principle that political groups cannot require members to pay dues, the lawyer said.
Florida is a mandatory dues state for attorneys. “If the Bar has engaged in political activity, there could be a determination in federal court that they can no longer compel people to pay dues,” Lawyer A said. “That’s really what’s at risk.”
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