Ethically Speaking

Scope of professionalism is challenged in discipline case

by henry lee paul, esq.

Opposing counsel in a family law case were both charged with unprofessional conduct by The Florida Bar. One of these Respondents is challenging the authority of the Supreme Court to impose discipline for uncivil conduct. The conduct includes uncivil communications between the opposing counsel. Both cases were pending as of the submission of this article.

The complaints against each Respondent are similar and the charged violations include the civility provision of the Oath of Admission, Rule 4-8.4(d) (Conduct Prejudicial to the Administration of Justice) and Rule 4-3.4(c) (Disobey Obligation of Tribunal). It is notable the complaints further allege a violation of the “Bounds of Advocacy” published by the Family Law section, which was incorporated into a local standing family law court order, and was thereby elevated to a cause for discipline. The Respondent in The Florida Bar v. Leigh, SC2022-1078, has presented an aggressive defense challenging the authority of the Court to impose discipline for the alleged uncivil conduct. Respondent asserted that the uncivil and angry communications in a phone call with opposing counsel were beyond the scope of conduct for which discipline may be imposed. In a Motion for Summary Judgment, the Respondent asserted in relation to this phone call, “It was a private conversation between the two individuals that lasted approximately three minutes wherein Respondent advised [opposing counsel] to not treat his [Mr. Leigh’s] staff poorly. The Florida Bar should not be allowed to regulate speech between two attorneys that have nothing to do with a case and does not contain speech that is not protected by the constitution such as hate speech or speech that incites violence. Where does it stop. If the Respondent said the same thing at a football game, The Florida Bar would have one believe that this is unethical.” He also claimed The Florida Bar was acting as the “speech police”. The legal question posed by Respondent regarding the limits of regulation of lawyer conduct has essentially been answered by the Supreme Court. In The Florida Bar v. Sayler, 721 So. 2d 1152 (Fla. 1998), the Court has unequivocally stated that “The First Amendment does not protect those who make harassing or threatening remarks about the judiciary or opposing counsel.” It is unknown how Mr. Leigh will fare in his defense. Each case turns on an evaluation of the facts as applied to the legal standard. However, the assertion of first amendment protections in defense of allegedly uncivil conduct has not fared well in lawyer discipline cases. The scope and seriousness of discipline for unprofessional or uncivil conduct has continued to expand. The requirement of civility is no longer aspirational. Lack of professionalism is now subject to serious sanction. The Supreme Court continues to give meaning to their admonition in The Florida Bar v. Norkin, 132 So. 3d 77 (Fla. 2013) that it will “…not tolerate discourteous and unprofessional behavior.” Only the Court can determine where the application of the obligation for lawyers to act with civility will stop.

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.

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