“Unprofessional” Versus “Unethical” (Caution: Slippery Road Ahead)

Published February 2014 by D. Culver Smith III

There was a time when we songbirds in the professionalism choir were forced to acknowledge the distinction between unethical conduct and “merely” unprofessional behavior.  The Supreme Court of Florida in recent pronouncements has all but obliterated that distinction.  The Court first amended the Oath of Admission to include a pledge of civility to others (including opposing counsel).  Then the Court enacted a “Code for Resolving Professionalism Complaints,” in which it adopted by reference the Florida Bar “Creed of Professionalism” and “Ideals and Goals of Professionalism”—formerly just inspirational goals—as standards for lawyer conduct with possible disciplinary consequences.  See In re Code for Resolving Professionalism Complaints, No. SC13-688 (Fla. June 6, 2013).

The Court was not merely proselytizing.  Most recently (as of this writing), the Court in Florida Bar v. Norkin, 2013 WL 5878901 (Fla. Oct. 31, 2013), disapproved a referee’s recommended ninety-day suspension and imposed a two-year suspension (the Florida Bar sought a one-year suspension) on a lawyer for what once might have been viewed as unprofessional but not unethical conduct.  The Bar accused Mr. Norkin of several acts of antagonistic behavior during the course of a lawsuit between the two owners of a corporation.  The court appointed a retired circuit judge to serve as provisional director of the corporation to break the tie on any issue on which the two owners disagreed.  When Mr. Norkin’s client failed to pay his share of the provisional director’s fee, the provisional director obtained a judgment against Mr. Norkin’s client for the amount owed and had a writ of garnishment served on Mr. Norkin.  Mr. Norkin responded with a letter to the provisional director accusing him of a “cozy, conspiratorial” relationship with his client’s adversary and threatening to sue him if he did not rescind the writ.  Mr. Norkin also moved to recuse the presiding judge, accusing him of acting “at the beck and call” of the opposing party.

The referee in the disciplinary proceeding that followed found that Mr. Norkin’s accusations about the provisional director and the presiding judge were false and made with reckless disregard of the truth.  The referee also found that Mr. Norkin demonstrated unprofessional behavior and demeanor during many of the hearings in the case.  At one of the hearings, the presiding judge said, “I am finding these hearings with you extremely difficult.  You talk very loud.  … . You are very angry, you make me angry.  I don’t like angry lawyers.”  That judge eventually recused himself.  The successor judge had similar issues with Mr. Norkin:  “You yell at me and scream at me.”

The Bar did not accuse Mr. Norkin of incompetence, lack of diligence, absconding with trust funds, disclosing client confidences, having a conflict of interest, ex‑parte communication with the judge or his client’s adversary, fabricating evidence, or obstructing the opposition’s access to evidence.  It accused him of  “unprofessional and antagonistic” conduct—conduct that we songbirds once lamented as “unprofessional” albeit not unethical per se.  Mr. Norkin’s behavior may seem extreme.  To the Supreme Court, however, it is part of a trend.  The referee found and the Court agreed that Mr. Norkin’s conduct violated rules 4-3.5(c) (conduct intended to disrupt a tribunal) and 4-8.4(d) (conduct prejudicial to the administration of justice) of the Rules Regulating The Florida Bar.  One hopes that the Court’s readiness to impose disciplinary sanctions in such cases will deter lawyers from obnoxious, disrespectful, antagonistic, or disruptive behavior.

This professionalism issue of ours has been a topic of debate for as long as there have been lawyers.  When all has been said and done, more has been said than done.  Until now.  The Supreme Court has made it clear that such conduct puts one’s license at risk.