William Shakespeare is credited with “The quality of mercy is not strained, It droppeth as the gentle rain from heaven upon the place beneath: it is twice blest; It blesseth him that gives and him that takes.” The Merchant of Venice, Act 4, Scene 1. In a similar vein, it has been said that one who represents themselves in a legal proceeding is similarly “twice blessed,” for she/he has "a fool for a client" and therefore also a fool for an attorney. That may be a bit harsh. But in reality, there is likely an advantage in having an independent expert providing counsel and advice no matter how skilled or intelligent or prepared a party to a legal proceeding may be.
I was reminded of this recently reading a Florida Supreme Court decision in The Florida Bar v. Brady, No. SC19-39. (July 11, 2019). In attorney discipline proceedings, The Florida Bar as licensing authority decides whether to pursue discipline and acts as prosecutor in the event such proceedings are elected. The Bar is an agency of the Court, prosecuting one of its own members before that very Court.
The process involved often includes the Court appointment of a Referee to conduct a trial on the allegations. Generally, the Referee will be a Florida Circuit Judge. The Referee produces a report following the fact-finding hearing and recommends punishment in the event that culpability is found. Ultimately, however, the imposition of any penalty is within the discretion of the Court itself.
The attorney in this proceeding represented himself regarding the charges brought by The Florida Bar. The resulting Report in this case has some notable findings. First, the accused attorney appeared late for trial on both days the hearing was conducted by the Referee. It is never a good idea to be late for a hearing. Certainly, things can happen (car trouble, etc.), but it is to be avoided. The Bar called six witnesses and submitted thirteen exhibits. The accused attorney submitted eight exhibits and called no witnesses. See If you are not Perry Mason, Bring Evidence (May 2013).
Following the trial, there was a recess during which the Referee considered the evidence. Then she “made an oral pronouncement,” concluding that “there was clear and convincing evidence to support a recommendation that Respondent be found guilty” of violating seven rules regulating lawyer behavior.
The Referee immediately began “the sanctions phase of the proceeding.” The Bar presented its arguments and legal authorities. When the accused attorney was then offered an opportunity to respond, he “advised the Referee that he was not prepared to proceed with the sanctions hearing, and requested to adjourn for the day and resume the next morning with his argument.” The Referee denied that request.
Though the Referee noted that “there was no reason for Respondent to have failed to prepare to address sanctions,” the Referee nonetheless accommodated the attorney. She did not, however, agree to the request to adjourn for the day and reconvene the next day. She “instead provided Respondent with the opportunity to submit a written argument to the Bar and the Referee by the” end of the next day. Thus, the attorney had failed to prepare, had sought an accommodation, and was lucky enough to be afforded one.
The first point here is that attorneys know that they should present for hearing prepared and ready to try the whole case unless some pretrial order has specifically limited the issues. One cannot unilaterally focus solely upon some singular portion or portions of the issues, in the hope that a trial judge will be accommodating. In this case, the attorney was lucky that the Referee afforded this additional time for him to respond. This is particularly true as the attorney did not apparently raise that point when the penalty phase began, but instead seemingly listened to the Bar’s argument and authority to be presented and explained before asking. Some might see such an election as inappropriate, and the request for accommodation as stale.
Instead of taking advantage of that opportunity to file something the next day (an accommodation), the attorney “instead submitted a written motion to the Supreme Court of Florida requesting a mistrial and other declaratory relief.” And, the attorney elected not to provide a copy of that filing to the Referee; failing to file the written argument was disrespectful of both the Referee and the process. Going around the Referee, without even a courtesy copy, was more disrespectful.
The Referee thereafter made her recommendations regarding punishment without any argument by the attorney. In failing to prepare and present, in failing to file writing as the accommodation afforded, the attorney essentially perhaps waived his right to be heard on the issue of punishment. Leaving arguments unanswered and unaddressed is rarely a wise decision. That is not to say never, but such a decision should be carefully considered. It may be that such a decision is best for a detached professional rather than a party representing her or his own interests.
The behavior of this attorney was notable. He was an employee of a law firm and was later fired. After he was fired, he started a new law firm with a name virtually indistinguishable from that of his former employer, filed notices of appearance in various cases in which that former firm was counsel, contacted some opposing counsel in such cases, and informed them to no longer communicate with his former employer, created a “fictitious website,” and “burglarized” that former firm. The burglary occurred “in broad daylight” and was captured on video (a truck was apparently roped to the front door, which was pulled off the building). A safe and computer server was stolen, and the attorney later confessed to “taking the firm's server via text message to” the law firm owner.
The attorney’s behavior resulted in “multiple felony charges” against the attorney and an accomplice. There was also an injunction entered against the attorney regarding the contact the attorney had with the law firm, and its clients, and from interfering with the firm’s business.
The Referee noted that the “temporary and later permanent injunction failed to alter or even slow Respondent's aggressive and defiant behavior.” The attorney effectively ignored the Circuit Court ordering him to stop the complained of behavior. The details of the attorney's behavior are worthy of mention because of the damage such actions can have on an entire profession. There are those who behave poorly, or even outrageously.
But, the pertinent lessons here are: (1) a party should be cautious about representing him or herself. In this regard, it is worth noting that corporate entities cannot represent themselves in legal proceedings through agents (employees, officers, directors), except licensed attorneys; (2) trial preparation has to be thorough, encompassing all potential issues (absent some order limiting them). Never presume that some portion of the trial will be separated or handled at some later time; (3) when one finds themselves short or unprepared and seeks accommodation, one should be thankful for such. If given a chance to respond orally or in writing, take that opportunity. It is simply not advisable to leave your opponent’s arguments or legal authorities unanswered.
