PROFESSIONALISM

PRACTICING WITH PROFESSIONALISM

The Florida Bar Henry Latimer Center for Professionalism

Learning Objectives for Professionalism Segment

1. Explore “professionalism,” “civility” and “ethics”;

2. Look at how professionalism is regulated;

3. Practice identifying & resolving ethics and professionalism issues;

Learning Objectives for Professionalism Segment

4. Explore the rules for lawyers regarding social media;

5. Identify why professionalism matters.

Exploring professionalism, civility and ethics

The Standing Committee’s Working Definition of Professionalism

Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces far more than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism are character, competence, civility, and commitment.

ABA Journal, January, 2013

“You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession”

Civility Pledge in Bar Oath

…to opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications…

• Courtesy• Manners• Constructive interpersonal interaction• Humility• Collegiality

…Civility Component

…Ethical Component

• The Ethics Rules regulating the Florida Bar are the minimum standard or the floor that supports our status as a lawyer in good standing.

• Rules of ethics mandate required behavior.

An Ethical person often chooses to do more than the law requires and less than the law allows;

there is a big difference between what you have a right to do and what is right to do.

Justice Potter Stewart

Regulating Professionalism

Professionalism Enforcement

1) Attorney Consumer Assistance Program (ACAP)

2) Disciplinary system– Cases– Rules

3) Local Peer review or circuit programs

Attorney Consumer Assistance Program (ACAP)

Processing Professionalism Complaints

Complaint Assessment Investigation & Action Disposition

Disciplinary System: Cases

The Florida Bar v. Ratiner, 46 So.3d 35 (Fla. 2010). • Attorney publicly reprimanded and

suspended for 60 days for unprofessional conduct at a videotaped deposition.

Disciplinary System: Cases

• The Florida Bar v. Martocci, 699 So.2d 1357 (Fla. 1997).

• The Florida Bar v. Martocci, 791 So.2d 1074 (Fla. 2001), reh. den. (2001).

Disciplinary System: Cases

The Florida Bar v. Walton, 952 So.2d 510 (Fla. 2006). • Attorney suspended for 91 days for course of

conduct involving a shortage of 23 cents.

Disciplinary System: Rules

RULE 4-8.4 MISCONDUCT A lawyer shall not: (d) engage in conduct in connection with the practice

of law that is 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, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic;

Disciplinary System: Rules

RULE 3-4.3 MISCONDUCT AND MINOR MISCONDUCTThe standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the State of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

Disciplinary System: Ideals & Goals of Professionalism

“As The Florida Bar grows, it becomes more important to articulate our ideals of professionalism and to emulate such ideals by deed. To The Florida Bar, Lawyer Professionalism includes:”

(7) accepting responsibility for one's own professional conduct as well as others in the profession, including inculcating a desire to uphold professional standards and fostering peer regulation to ensure each member is competent and public-spirited.

Local Peer Review

Many circuit professional committees or local bar associations have created peer review systems. Selected examples include:

• 15th Judicial Circuit Professionalism Council• 6th Judicial Circuit Professionalism

Implementation Panel (PIP)• Orange County Bar Association’s Peer Review

System

What can WE do when we observe or become a

party to unprofessional conduct?

Gaining practice identifying & resolving ethics

and professionalism issues

My Cousin Vinny

RESPECT for the Judiciary

• How do you respectfully disagree with the judge in court?

• What is appropriate court-room decorum? – The Florida Bar v. Wasserman, 675 So.2d 103 (Fla.

1996) .

The Rainmaker

Possible Rule Violations

• Rule 4-1.5(e) – “Duty to Communicate Basis or Rate of Fee or Costs to

Client.”• Rule 4-2.1 – “Adviser.”• Rule 4-7.4(a) & Comment – “Solicitation.”• Rule 4-8.3(a) – “Reporting Misconduct of

Other Lawyers”• Rule 4-8.4(a) – Violate rules through others.

A Civil Action

Possible Violations?

Rule 4-3.5(a) – Improper influence of judge/juror.Rule 4-3.5(c) – “. . .not engage in conduct intended

to disrupt a tribunal”Rule 4-8.4(d) – “… knowingly or through callous

indifference, disparage, humiliate, or discriminate” against any person involved in a legal matter.

Ideal 2 – “Honor, integrity, fair play”Goal 7.4(b) – “Tactics to embarrass, harass,

intimidate”

Guidelines for Social Media

Social Media

Pages appearing on networking sites that are used to promote the lawyer or the law firm’s practice are subject to the lawyer advertising rules. These pages must therefore comply with Rule 4-7.2.

Social Media

Invites sent directly from a social media site via IM to a third party to view or link to the lawyer’s page on an unsolicited basis for the purpose of obtaining, or attempting to obtain, legal business are solicitations & violate Rule 4-7.4(a), unless the recipient is:

• the lawyer’s current client, • former client, • relative, • has a prior professional relationship with the lawyer • or is another lawyer.

Social Media

Social Media

Any communication made by a lawyer must refrain from fraud, deceit, dishonesty, and misrepresentation.

See Rule 4-7.1(i) and Rule 4-8.4(c).

Social Media Case Law

The Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008)

• Attorney received public reprimand for posting derogatory comments about a Judge on an Internet blog.

• The Referee found the statements not only undermined public confidence in the administration of justice, but were also prejudicial to the proper administration of justice.

Why Professionalism Matters

Gallup Poll’s Honesty & Ethics in Professions 2012

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Business

Execu

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Bankers

Accountants

Clergy

College te

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Police office

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Professionalism Matters

Legal profession has problems… • 18% alcoholics (double the national average).• 33% serious mental health problems.• 3.5 times more likely to suffer severe

depression.• Suicide rate double the rate of the general

public.• Lowest job satisfaction of all professions

surveyed.• Low rate of trust in lawyers by the public.

Costs of Being Unprofessional • Damage to your reputation, your credibility

and your livelihood.

• Increases stress and leads to greater dissatisfaction with your practice of law.

• Sanctions by court and The Florida Bar.

We Need to Act Professionally

• because it is The RIGHT thing to do &

• it is GOOD for us and because

• Professionalism matters!

Quote From The Rainmaker

“Every lawyer at least once in every case feels himself crossing a line that he doesn’t really mean to cross, it happens and if you cross it enough times it disappears forever. And then you’re nothing but another lawyer joke. Just another shark in the dirty water.”

What We Accomplished Today

1. Discussed “professionalism,” “civility” and “ethics”;

2. Viewed how professionalism is regulated;3. Identified and resolved ethics and

professionalism issues in hypothetical scenarios and movie clips;

4. Explored the rules for lawyers regarding social media;

5. Identified why professionalism matters.

PROFESSIONALISM

PRACTICING WITH PROFESSIONALISM

The Florida Bar Henry Latimer Center for Professionalism