PBCBA BAR BULLETINS pbcba_bulletin_may 2018 | Page 18

PROFESSIONALISM C o r n e r
THE FLORIDA SUPREME COURT AND THE NEW
FRONTIER:
IS “OBNOXIOUS” THE NEW “UNETHICAL”?
Michael D. Mopsick
Our Supreme Court continues its campaign
to restore and raise the standard of civility
and professionalism in the practice of
law. In doing so, the Court is blurring the
lines between unethical conduct which
violates the Rules of Professional Conduct
(the “Bar Rules”), and conduct that is
unprofessional and uncivil. The Court has
been riding the crest of a sea change in
the way lawyers will be held accountable
with their licenses for "unprofessional"
behavior that a few short years ago might
only have resulted in reprimand or a short
suspension. The message is clear: you can
lose your license to practice law for being
obnoxious, particularly if your behavior is
cumulative and found to be "prejudicial to
the administration of justice".
The Florida Bar vs. Ratiner , No. SC13-539, __
So. 3d __, (Fla. Feb. 22, 2018), is the latest
example of the severity of the Justices'
reaction to incivility and unprofessional
conduct in the courtroom. While the
Court and the Florida Bar, in disciplinary
proceedings, have long referred to Bar
Rules 4-3.5(c) (conduct intended to disrupt
a tribunal); Rule 4-8.4(d) (conduct that is
prejudicial to the administration of justice);
and Rule 4-8.4(a) (violating or attempting to
violate the Rules of Professional Conduct),
the Court appears now more likely to
refer to those rules to reject a referee's
recommendation of several months'
suspension and impose the ultimate penalty
of disbarment, as in Ratiner, or suspensions
calculated in years, not months, particularly
in cases of cumulative previous misconduct
in the courtroom. See, e.g., The Florida Bar
vs. Norkin , 132 So. 3d 77 (2013) (rejection
of recommended three-month suspension
and imposition of two-year suspension;
The Florida Bar vs. Committe , 136 So. 3d 1111
(2014) (rejection of recommended 91-day
suspension and imposition of three-year
suspension).
Here is what the Court had to say in Norkin:
Screaming at judges and opposing counsel,
and personally attacking opposing counsel
by disparaging him and attempting to
humiliate him, are not among the types
of acceptable conduct but are entirely
unacceptable. One can be professional
and aggressive without being obnoxious.
Attorneys should focus on the substance of
their cases, treating judges and opposing
counsel with civility, rather than trying to
prevail by being insolent toward judges and
purposefully offensive toward opposing
counsel….We do not tolerate unprofessional
and discourteous behavior. We do not take
any pleasure in sanctioning Norkin, but if
we are to have an honored and respected
profession, we are required to hold ourselves
to a higher standard. (132 So. 3d, at 92, 93).
The Court does not seek to deprive you of
your license to practice your profession;
it wants to teach you how to avoid that
result. The Panel system is one of the tools
designed to achieve that end. On June 6,
2013, the Court, by Justice Lewis, issued an
order entitled "In Re: Code for Resolving
Professionalism Complaints" (No. SC13-
688), in which the Court mandated the
creation, in every Circuit, of a system of
professionalism tribunals, named "Panels",
to hear and resolve complaints about an
attorney's lack of civility or exhibition of
unprofessional behavior, hopefully before
that conduct can repeat itself and result
in the kind of extreme discipline we have
seen in recent cases. Palm Beach County
was way ahead of the game. A mechanism
created during the 1990's was already
in place for hearing such complaints.
Named the Professionalism Council, and
administered by the Professionalism
Committee, it served, along with a handful
of other such programs around the state, as
a prototype for the Professionalism Panels
now mandated for every Circuit in the State.
The concept as functioning here needed
only a designation by the Chief Judge, a
change of name, and a little tweaking, and
we were up and running. Its focus was,