In 2012, the Florida Supreme Court began a focus on professionalism. See The New Professionalism - Where are we Headed (July 2013). The Court found a need to expand upon the "passive academic approach" to professionalism, to build upon it. There was sentiment in that Court proclamation of disappointment that professionalism challenges remained at the fore. A critical element of that effort was the formation of "Circuit Professionalism Panels." These are not disciplinary groups but are designed to assist attorneys through the challenges of professional practice. It is somewhat hard to believe it has been almost ten years since.
Earlier this year, I participated on a presentation for lawyers regarding professionalism. There was a sentiment among some involved that the professionalism situation remains challenging. They complain about behavior, words, and perceptions. I was particularly disgusted to hear that many perceive ongoing issues with discriminatory words and actions among lawyers. This is particularly troubling in that this profession has many outstanding female, Hispanic, black, and other minority attorneys, and my perception was that they were being treated as equals and respected. My disenchantment with hearing otherwise is palpable.
In May 2022, the Second District Court of Appeal entered an interesting decision in Mongelli v. Florida Health Sciences Center, Inc., No. 2D21-3577. The case is an "extraordinary writ," not an appeal. See Writ Protection as Opposed to Appeal (July 2017); see also If it is MOOT, what does it Matter (August 2018). The petitioner was asking the Second DCA "to disqualify the trial court judge from presiding over this negligence action." That is the appropriate way to seek relief when a trial judge denies a motion to disqualify.
The opinion is very brief, and centers upon the petitioner's belief that "he will not receive a fair trial." He concluded that the trial judge will not (or cannot) be fair "because the judge stated during a discovery hearing that (petitioner's) Mongelli's counsel seemed unnecessarily angry and subsequently referred" him to "the Hillsborough County Local Professionalism Panel for assistance in anger management and counseling in professionalism." This referral, according to the petitioner, gives him fear "that the (trial) judge does not trust his counsel and will now look 'with suspicion' on every position that counsel takes."
The Court noted that the Florida Supreme Court has already addressed the reporting of professionalism issues. In 5-H Corp. v. Padovano, 708 So. 2d 244, 248 (Fla. 1997), the Court held that "a Florida judge's mere reporting of perceived attorney unprofessionalism to The Florida Bar, in and of itself, is legally insufficient to support judicial disqualification.” In this context, the professionalism referral is not equal or even similar to a judge challenging in some way "his counsel's integrity or ethics." The Court was emphatic "that they are not the same."
Furthermore, the Court reminded that "the judges of this state have a responsibility to promote courtesy and professionalism in their courts." This is mandated by the "Florida Code of Judicial Conduct," in its requirements:
"that judges 'participate in establishing, maintaining, and enforcing high standards of conduct,' 'require order and decorum in proceedings before the judge,' and require lawyers subject to their discretion and control to be 'patient, dignified, and courteous.'" Fla. Code Jud. Conduct, Canons 1, 3B(3), 3(B)(4).
Therefore, the Second District Court concluded, "a trial court judge may refer a lawyer perceived as discourteous to a local professionalism panel without concern that he or she, by that action alone, will be subject to disqualification."
The Court reminded that even a judge questioning "the veracity or ethics of a party or counsel" may or may not be "subject to disqualification depending on the unique facts of the case." Those considerations are more serious and are dependent upon the facts in a particular situation. It illustrated with a holding regarding a Judge of Compensation Claims who was disqualified by the appellate court when he
"went beyond the 'mere reporting of unprofessionalism' and found that the petitioner's attorney had acted dishonestly, had committed at least one crime, and 'was not worthy of belief'”).
Those things should perhaps have been better left unsaid. Accusing attorneys or others of criminal activity is a serious situation, and cannot be taken lightly Of course, there are some attorneys who are actually accused of criminal behavior. See Then Arrested (January 2021) involving criminal allegations against a Florida attorney who coincidentally may have been involved in the case cited by the Second District.
We are left with the Court's sentiment that professionalism is critical to the practice of law. There are many ways that crass or untoward behavior or words can enter the exchanges of lawyers, whether with the public, other professions, or other lawyers. It is critical that such communications and behaviors honor the charge of professionalism and fulfill the attorney's professional obligations. And, when they do not, judges and lawyers owe it to this profession and the public to make referrals to the Professionalism Panels. It is the right thing to do, and the best thing for this critical and necessary profession.
