I am persistently surprised by how we all make personal choices. Each day we are presented with a multitude of alternatives, some more palatable than others. For example, we might decide any day to either walk on the beach or go to work. I so often hear "I have to work," but that is just a conclusion. You only have to pay taxes and die (that is a rough adaptation of Benjamin Franklin's "Nothing is certain except death and taxes"). So, you don't "have to work," you can choose instead to get fired.
I know, I know, "THAT'S NOT FAIR." Oh my. Even the Hollywood elite will tell you "Life’s not fair. It never was, it isn’t now, and it won’t ever be." Matthew McConaughey (2016). Generation after generation has gotten over the whole "fair" deficit and challenge. More will get over it soon, and the next generation will struggle with it too. No amount of government-borrowed "free checks," "loan forgiveness," or other largess will ever make the world fair or convince the naive it is fair.
Choices. We all face a vast array of choices. We can choose jalapenos in our taco, and a double shot in our margarita. Great tonight, perhaps consequences tomorrow. We can run a 10k on a whim. Endorphin bliss today, muscle cramps, or worse tomorrow. Life, you see, is Newtonian. "For every action, there is a reaction." For every choice, there is a consequence. As you age, this becomes second nature (and you start to fear the consequences less perhaps, but see the jalapeno example).
A lawyer made the news for a choice recently. Horace Middlemier* sent me the article. I am very grateful when I receive a heads-up like that.
The story starts in December 2020 (mid-pandemic) when The Florida Bar filed a complaint against attorney David Woodward, who practiced in Paradise. There were various delays, but the "referee" (a Circuit Judge) gathered all of the information and filings by early December 2021.
The Referee concluded that Mr. Woodward was engaged in a 2019 case, and that he later "failed to notify his clients of a new trial date" and "failed to reply to the clients' phone calls or inquiries about their legal case." There was a failure to appear for trial, and Mr. Woodward said "he intentionally did not appear because opposing counsel would not comply with discovery requests or the order for mediation."
There was an order to show cause ("OSC" - that is a tool judges use to ask questions. When you receive an order to show cause, it is important and can be serious). Mr. Woodward did not respond to the order, "and did not provide his clients with a copy of the OSC as required by the order." That led to another OSC. Mr. Woodward was consistent, and neither responded nor informed his client. The judge acquiesced to his request for a hearing though and allowed Mr. Woodward to explain "in person."
The result was not positive for the client. The trial judge dismissed the plaintiff's case. That was "without prejudice," so it could be re-filed. But it was a dismissal nonetheless. The judge also awarded fees to the defense, though it is not clear whether the plaintiff or Mr. Woodward personally was ordered to pay those fees. When a judge awards sanctions, the situation is serious. It is a fair warning and should be heeded.
Then came the bar complaint. The Bar began by forwarding the Plaintiff's bar complaint to Mr. Woodward. He "failed to answer." The Bar soon sent a "reminder letter," to which Mr. Woodward replied "he was very busy, but would respond at a later time." (You are never too busy to respond to the Bar). The complaint proceeded in April to a "local grievance committee" (an investigatory process), and a member of the committee reached out to Mr. Woodward, "but to no avail." In June, Mr. Woodward reached out "for the first time" to the committee member.
The Referee's findings are not oblique conclusions. They are striking. The referred noted Mr. Woodward "failed": "to communicate with his client," "to expedite the clients' litigation," "to respond to two orders to show cause," "to notify his clients of the two Orders to Show Cause," and concluded his conduct was "prejudicial to the administration of justice." The Referree concluded that Mr Woodward should "be found guilty of violating the following Rules":
"4-1.3 (Diligence), 4-1.4 (Communication), 4-3.2 (Expediting Litigation) 4-3.4(c) (Knowingly disobey an obligation under the rules of a tribunal), 4- 8.4(d) (Conduct Prejudicial to the Administration of Justice), and 4-8.4(g) (Failure to Respond to the Florida Bar)."
The Florida Supreme Court entered an April 14, 2022 order and suspended Mr. Woodward from practicing law. At that time, he had been admitted to the Bar over 52 years (November 10, 1969). In addition to the suspension, the Court ordered "probation for two years," and "further directed (Mr. Woodward) to comply with all other terms and conditions of the report."
This is the part where we come back to death and taxes. You might conclude that you have to do what the state Supreme Court says also. But, you would be wrong.
The Referee report said that Mr. Woodward
"will contact Florida Lawyers Assistance, Inc. (“FLA”) within 30 days of the issuance of the final order in this case to schedule a psychiatric evaluation by a mental health professional who is an FLA-approved evaluator."
and
"Then, based on that evaluation, Respondent will follow whatever FLA recommends, including entering into a rehabilitation contract."
For those who might wonder, Floririda Lawyers' Assistance (FLA) is an outreach that deals with troubled or challenged lawyers. Their fame comes from the great work they have done over the years with those challenged by addictions and similar. See Jeffrey Appel Passes (December 2023), Anger and Email (May 2019); Is it Manslaughter (April 2015).
However, FLA can provide a great deal of guidance and support for other challenges, such as stress, overcommitment, and more. They are, at a minimum, a patient ear for the lawyer who is behind the eight ball in practice and needs guidance. Here is a great thought, the contact you have with FLA is confidential and you can call them without the judge ordering you to. The point is there is a resource you can access if you need help.
Mr. Woodward elected not to enter the contract with FLA regarding its recommendations about "outpatient substance abuse." The Bar eventually filed a petition for contempt and asked that he "be suspended for 91 days," that the prior "probation . . . be terminated," and that he be ordered to pay costs for the contempt proceeding. In December 2023, the Florida Supreme Court held Mr. Woodward in contempt. The Court suspended him for 91 days, meaning that a petition for reinstatement would be necessary for readmission to the practice of law.
In order to petition for reinstatement, Mr. Woodward "must":
"(1) undergo a comprehensive mental health and substance abuse evaluation by a professional approved by FLA, Inc.; (2) comply with any recommendations FLA, Inc. may have as a result of the evaluation, including entering into a rehabilitation contract; and (3) receive a recommendation from FLA, Inc. in support of his reinstatement."
The Miami Herald reported that Mr. Woodaward had declined the original FLA contract requirement, "asserting he would not give up his evening cocktails with his wife, nor did he have an alcohol problem.” It cites other statements he made and denials of any substance issues. Mr. Woodward also explained that the requirements imposed by FLA "didn't make sense," "robbed him of freedom," and "unduly extended his probation." Mr. Woodward also made the point that the FLA requirements, the "contract terms, weren't" “subject to discussion or negotiation.”
And, we return once again to death and taxes. No, no one can make someone sign a contract. Contracts are entered into by parties with the capacity to do so in an arms-length decision. Certainly, there are aspects of any contract that perhaps should and are subject to "discussion and negotiation." But, a great many contracts are put on the desk as take-it-or-leave-it proposals. Anyone who ever bought a car has experienced that.
There is, in that grand illustration of death and taxes perhaps the inkling of freedom. You are free not to sign a contract. In this instance, Mr. Woodward is free not to do what the Supreme Court told him to do. But, and there is reasonably often a "but," he won't practice law until he does. That is a choice. Some would say a reasonably difficult choice. Others might say an unfair choice. Everything he says about the contract (non-negotiable, non-sensical, onerous) could be true. But, that is the requirement. You do, or you don't.
The story recited here illuminates many choices that if made differently might have led to a different end. One might have chosen to respond to the trial court orders and follow instructions, show up for trial, respond to the Bar complaint, and more. There were decisions throughout. There were choices.
Death and taxes. Come to think of it, it is really just death in the end. You can choose not to pay taxes also, but the outcome might not be what you hoped for. Ask Leona Helmsley, Al Capone, Pete Rose, Martha Stewart, Willie Nelson, and more. See DJA Suncoast. Perhaps they cannot make you pay taxes in the end, but they can certainly make you wish you had. Maybe following court orders is similar.
Whether "the 81-year-old" attorney in Paradise signs the FLA contract and petitions one day for reinstatement to The Florida Bar remains to be seen. What is known is that fighting the law can be challenging, and any lack of diligence and responsiveness can be career-threatening. Life is about choices. We make them. And they can have consequences. We live with them.
