The Supreme Court’s New “Code for Resolving Professional Complaints”

Published July/August 2013
by D. Culver Smith III

On June 6, 2013, the Supreme Court of Florida adopted a “Code for Resolving Professionalism Complaints.” In re Code for Resolving Professionalism Complaints, No. SC13‑688 (Fla. June 6, 2013). This comes at the request of the Supreme Court of Florida Commission on Professionalism, which the Court created in 1996 at the request of The Florida Bar following a task-force report that Florida lawyers’ professionalism was in a state of “steep decline.” The Court noted that since that time, state and local efforts to enhance professionalism have followed a “passive, academic approach” (CLE programs, etc.) that “has probably had a positive impact toward improving professionalism or at least maintaining the status quo by preventing a further decline.” Id. slip op. at 2. Nonetheless, the Court agreed with the Commission “that we continue to experience significant problems that are unacceptable,” id., and that “further integrated, affirmative, practical and active measures are now needed.” Id. slip op. at 2–3.

The new code is not a “code of professionalism” per se, rather incorporates by reference certain existing standards of behavior: the Oath of Admission to The Florida Bar, the Florida Bar Creed of Professionalism, the Florida Bar Ideals and Goals of Professionalism, the Rules Regulating The Florida Bar, and the decisions of the Court itself. The first three are easy enough to absorb, but the Rules Regulating The Florida Bar and especially the Court’s decisions leave a lawyer with a

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vast expanse of uncertainty. Nonetheless, this is the first time that the Court has officially adopted the Florida Bar Ideals and Goals of Professionalism and the Florida Bar Creed of Professionalism as standards for professional behavior.

The new code establishes a mechanism for processing complaints of unprofessional conduct that does not necessarily rise to the level of an ethics violation. It calls for such complaints to be screened by The Florida Bar’s Attorney Consumer Assistance Program department (ACAP). ACAP currently performs the intake and screening functions for all bar grievances—i.e., the first-line determination whether an ethical violation may have occurred. The code gives ACAP the option of providing remedial guidance or referring the matter to a “local professionalism panel.” If ACAP views the complained-of conduct as rising to the level of an ethics violation, it likely will refer the complaint to one of the Bar’s disciplinary branch offices for further investigation and processing.

This comes more than twenty years after the Palm Beach County Bar Association adopted Standards of Professional Courtesy that themselves incorporate by reference the Florida Bar Ideals and Goals of Professionalism. Those standards have been endorsed by the judges of the Fifteenth Judicial Circuit by administrative order that created a circuit Professionalism Council for receiving and processing complaints of unprofessional conduct by lawyers practicing in this circuit. The new code does not purport to preempt that process. The Palm Beach County Bar Association Professionalism Committee currently doubles as the local Circuit Committee on Professionalism. By the time this article is published, our chief judge will have designated the committee or the Professionalism Council as this circuit’s Local Professionalism Panel under the new code.

How this new effort by the Supreme Court will play out remains to be seen. Regardless, the Court unequivocally has spoken to unprofessional behavior by Florida lawyers. The Court already has demonstrated a readiness to impose discipline for disruptive, rude, or unprofessional behavior that one otherwise might believe does not rise to the level of an ethics violation. It has done so under the guise of Rule Regulating The Florida Bar 4‑8.4(d), which prohibits conduct “prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis.” It cites some examples in the new code itself, including Florida Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010) (suspension, public reprimand, and probation with conditions), and Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001) (public reprimand and probation with conditions). One hopes that the Court’s adoption of the Oath of Admission, the Creed of Professionalism, and the Ideals and Goals of Professionalism as “Standards of Professionalism” and creation of a process for resolving professionalism complaints will be seen by Florida lawyers as a warning shot and will further deter unprofessional conduct.

As of this writing, one can find The Florida Bar Ideals and Goals of Professionalism on the Bar’s website by clicking on “Professional Practice,” then “Henry Latimer Center for Professionalism,” then “About the Center,” then “Ideals and Goals of Professionalism,” and The Creed of Professionalism by clicking on “Professional Practice,” then “Henry Latimer Center for Professionalism,” then “About the Center,” then “Guidelines for Professional Conduct,” then “The Creed of Professionalism.”