I did a computerized search for the Florida Supreme Court opinion regarding professionalism ("supreme court professionalism"). It yielded results back to the 1950s. I re-sorted from "relevance" to "date" and the July 6, 2023 order was still number 8 on the list. The July 2023 decision is In re Code for Resolving Professionalism Referrals, 367 So. 3d 1184 (Fla. 2023). It could be easier to find.
It is worth a read, with coverage of a variety of points. It culminates an odyssey that began in May 2021 while the world remained primarily concerned about the creeping virus and striving for normalcy. The Court noted at the outset that this is not a new effort. It has been ringing the professionalism bell for years. Unfortunately, many lawyers have steadfastly ignored the entreaties.
But 2023 brought a new code that "replaces the 2013 Code with the Code for Resolving Professionalism Referrals." 2023 brought a professionalism overview reminding that there are "four sources that make up the standards of professionalism in Florida; the other sources are the (1) Oath of Admission to The Florida Bar, (2) The Florida Bar Creed of Professionalism, and the (3) Rules Regulating The Florida Bar." in addition to (4) "The revised Professionalism Expectations."
I have the utmost respect for our judiciary, Board of Governors, and for many lawyers. That said, I have a mental image, I just cannot shake, of a little boy sticking fingers and toes in an increasingly porous dike. See Hans Brinker, Mary Maples Dodge, 1865. There is a leak or two out there, and you cannot fault this effort just on that basis. But, the bottom line is that the Court needs more fingers to plug all these holes.
What is new? That may be troubling to some. The Court emphasized that the adopted standards "apply to all forms of communication, including online communication, and to both in-person and remote (video or audio) interactions with others." The cynics in the crowd are likely wondering why that had to be said. Did someone escape punishment by claiming their abuse of opposing counsel or some party or witness was "only" remote or "only" online? Was there some sentiment that it is acceptable to berate and belittle in certain settings or paradigms?
What is new? The requirement for continuing education decreases from "33 credit hours" including "at least one . . . (hour) of an approved professionalism program," to "30 hours per reporting cycle," but that must include "a two-hour legal professionalism course produced by The Florida Bar and approved by this Court." So, fewer hours overall, more mandatory professionalism, and more focused or specific professionalism. The two-hour CLE is now ready. I sat through it recently (there are no choices, watching it is mandatory).
I am a big fan of professionalism. I like to experience it on the bench. I like to see it in the work that is filed. I would be inspired to see it in the real world. Imagine the national news running a headline like Furious Travis Kelce grabs, screams at coach Andy Reid. What an inspiration for all the children watching at home. Is this an exception of professionalism or the modern rule?
Remember when professionals did not scream at officials, throw equipment, or otherwise emulate the "terrible twos?" The Bleacher Report compiled 25 Terrible Examples of Sportsmanship back in 2013. It remains compelling today. The best line in the article is "big tool? or biggest?" Somehow that says it all. Is the ultimate goal to win? Is that so compelling that it is worthy of any hold ("no holds barred")?
The answer from many quarters will be yes. I have seen it, reported it, and lamented it. There is a great deal of hand-wringing about lawyers and their behavior. And, to a person, they are reluctant to report the behavior of others. There is inclination instead to had wringing and complaining. The CLE program includes the point that lawyers see the lack of professionalism as the biggest challenge in the practice of law. Ruminate on that.
There are vast numbers of people who cannot afford legal services. There are congested court calendars. There are cyber miscreants engaged in a full-on assault on your privacy and success. The artificial intelligence is radically shifting the way we acquire and process information. We have law schools graduating students who progressed through multiple-guess exams. Despite these challenges, and more, number one is the lack of professionalism. If that does not alarm the reader, one perhaps wonders how.
What are the key points of the video? Watch it yourself! Now that was an unprofessional taunt. Five-yard penalty, still second down (sorry, football on the brain"). Did anyone else notice they were playing football between the commercials at the super bowl? I kid, but really, I love the commercials.
One of the CLE speakers reiterated more than once, referencing points and anecdotes "surprising, but it happens." There were references to missed deadlines, poor work, and worse. Sorry, but that "poor work" is not professionalism, it is a failure of competence. Let's quit that characterization. If a doctor leaves a sponge in your surgery site, or does not suture you up, would you say "well, that's not professional?" No, you would say that is not competent. Let's be real. Let's speak real.
Another speaker noted that "ethics is the floor" and professionalism is our aspiration. But the Court is shifting us from that. We have professionalism expectations. We have a new Code for Resolving Professionalism Referrals. This defines "unprofessional conduct." This incorporates the numbered points above. This clarifies that unprofessional conduct "may be referred to The Florida Bar for a disciplinary investigation," and perhaps "formal disciplinary process." Will we see disbarment?
One of the CLE speakers dropped a bomb that everyone should likely listen to twice. (You do not have to, another speaker repeated the spirit later). The first point was essentially "you are a lawyer 24/7." My notes on that are not so clear, but that is the point I got. The speaker suggested that you cannot "get in a fight" with the valet who parked your car. OK, really? Did that happen? Inquiring minds want to know.
The reiteration later in the program was perhaps more eloquent or maybe my notes were just clearer. This speaker said "once a lawyer, always a lawyer." Another reiterated "Professionalism is a must." The theme was recurrent. The point was inescapable. There is seeming unanimity among the presenters, the committee, and the Court.
All that said, the world did not change on July 6, 2023 (opinion date). It did not shift seventy-five days later when the comment period concluded. It did not transform when the CLE program dropped, nor when I watched it. No, words are words. And with all due respect, we have heard much of this before.
Today, there are likely still lawyers filing evidence they have physically altered. Not every day perhaps, but it is happening at least weekly. There are likely still lawyers attesting to patent falsity. There are probably still lawyers unilaterally scheduling discovery, failing to return calls, and berating each other in emails, texts, and more. There are likely even lawyers who file documents with factual assertions that are unsupported by any evidence. Does argument extend to fabrication? Will any of that change?
Will there be a greater willingness to report poor behavior to the Bar? Will there be more stringent recommendations of discipline by the Bar? Will the Court drive home its point in specific instances? In light of the common perception (number one, see above), perhaps some will hope so. Others will likely proceed on as if nothing has happened. They will sit through the CLE and claim their participation trophy. And the really disappointing part is that 98.43% of the lawyers that will invest 2 hours are literally in the choir already.
But will those who watch be better attorneys? Will the behavior in the market improve? Will the avoidable disputes, name-calling, unenthusiastic, unconcerned, indifferent, and worse improve? Time will tell. Color me skeptical for today, but hopeful that this voluminous effort does in fact bear fruit. In the event it does not, public perception will erode, lawyer stress will increase, frustration will fester, and we will all return to the topic again another day when more territory has been yielded, and fewer professional lawyers remain to lament it.
