Ethically Speaking

The Florida Bar explains application of standards of professionalism amid due process concerns

by henry lee paul, esq.

In a highly unusual procedure involving a judicial referral, The Florida Bar Board of Governors expanded the application of the Standards of Professionalism, as identified in In re Code For Resolving Professionalism Complaints, 174 So. 3d 995 (Fla. 2015) (Fla. 2013). The Standards are identified as 1) the Oath of Admission to The Florida Bar; 2) The Florida Bar Creed of Professionalism; 3) The Florida Bar Professionalism Expectations; 4) The Rules Regulating The Florida Bar; and 5) the decisions of the Florida Supreme Court. Although a former director of the Legal Division of The Florida Bar once stated the Professionalism Expectations would not be charged in a disciplinary case, The Florida Bar cited them in a complaint alleging unprofessional conduct in The Florida Bar v. Regan, SC20-1693. The Florida Bar charged Respondent with violating the creed of Professionalism and Professional Expectations 5.1, 5.2, 5.3 (Decorum and Courtesy), along with Rules 4-8.4(d), 4-8.4(a) and 3-4.2. However, the unusual procedure in charging this Respondent implicated serious due process concerns under In re Ruffalo, 390 U.S. 544 (1968). In Respondent’s case, the Grievance Committee made a recommendation of no probable cause, without notice to Respondent. The Board of Governors subsequently considered the matter and found probable cause for violation of the charged rules and standards, again without advance notice to Respondent. This resulted in Respondent being charged in a formal complaint before the Supreme Court without first having an opportunity to know or contest the specific charges. The case became more procedurally bizarre when the Supreme Court, on its own initiative, rejected the Referee’s recommendation of diversion pursuant to consent judgment. The Court sent the case back to the Referee giving Respondent the choice to either enter a consent judgment for a public reprimand or to proceed to trial. Respondent chose trial. The Bar took the position before the Referee that the Supreme Court, without a hearing of any type, had already made a definitive finding of guilt. The Referee rejected the Bar’s argument and made a recommendation of not guilty along with diversion. The Florida Bar appealed. Respondent argued that In re Ruffalo requires adequate notice of the charges and the right to respond to the charges. It was argued that these rights were not provided to Respondent and that they should not have been disregarded by the Board of Governors. In this case, Respondent was not given advance notice of the consideration of his case by The Board of Governors. He was not informed of the rules or standards to be considered and he had no opportunity to present a defense before the finding of probable cause. Although the Court ultimately upheld the not guilty recommendation made by the Referee, it did not address the due process concerns raised by Respondent. This case was prosecuted before the judicial referral Rule 3-7.18 was adopted. However, the procedure used was based on an “informal” policy consistent with the later adopted rule. The same lack of notice may be encountered for those lawyers who receive a judicial referral in the future.

Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.