The Florida Bar, an unincorporated association
Ordinary citizens, not lawyers, should run the disciplinary process. If a jury made up of non-lawyers is good enough to decide a murder case or a million dollar lawsuit, it's certainly capable of determining whether a lawyer has cheated a client.
The Florida Bar: Overview of Lawyer Discipline
Article V, Section 15 of the Constitution of the State of Florida gives the Supreme Court of Florida exclusive authority to regulate the admission of persons to the practice of law and the discipline of those persons who are admitted to practice.
Article V, Section 15. Attorneys; admission and discipline.—The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.
The Florida Supreme Court claims it performs those official functions through two separate arms:
- The Florida Board of Bar Examiners, which screens, tests and certifies candidates for admission to the practice; and
- The Florida Bar, the investigative and prosecutorial authority in the lawyer regulatory process. (attorney discipline)
- Allison Sackett, Tallahassee Chief Branch Discipline Counsel
- Sheila M. Tuma, Tampa Chief Branch Discipline Counsel
- Jan K. Wichrowski, Orlando Chief Branch Discipline Counsel
- Alan Pascal, Ft. Lauderdale Chief Branch Discipline Counsel
- Arlene K. Sankel, Miami Chief Branch Discipline Counsel
Other key people at The Bar's Tallahassee Headquarters include,
- Shanell Schuyler, Director, Attorney Consumer Assistance
- Mary Ellen Bateman, Director, Special Projects Division
- Lori S. Holcomb, Counsel, UPL Counsel
- Linda S. Calvert Hanson, Director, Professionalism Center
- P.J. Osborne, Coordinator, Clients’ Security Fund
Each Branch Office has a handful of Assistant Staff Counsels and a number of grievance committees that consider ethics and other complaints against lawyers. The organizational chart below
shows 79 grievance committees comprised of over 700 volunteers.
You probably know one former member of a grievance committee even if you are not a lawyer. His name is Scott Rothstein, the same Scott Rothstein who ran a $1.2 billion investment scam.
John T. Berry is the Legal Division Director, and Adria Quintela is Director of Lawyer Regulation, but they are deferential to the five Chief Branch Discipline Counsels in matters of attorney discipline.
Attorney Consumer Assistance Program (ACAP). The Florida Bar accepts complaints against attorneys, investigates those complaints and prosecutes attorneys who engage in unethical conduct. For individuals who are unsure if a lawyer has acted ethically or who are dissatisfied and wish to consider whether filing a complaint may be appropriate, The Florida Bar operates the Attorney Consumer Assistance Program (ACAP). The ACAP telephone number is toll-free: 1-866-352-0707.
The Clients' Security Fund was created by The Florida Bar to help compensate persons who have suffered a loss of money or property due to misappropriation or embezzlement by an attorney.
Consumer Information. The Florida Bar provides information for the public on certain general areas of law as well as specific legal issues in Consumer Pamphlets.
Bar presidents are annual rotating figureheads with little say in the discipline process. Executive Director John F. Harkness, Jr. keeps the bureaucracy moving. There are 52 members of the Board of Governors who formulate and adopt matters of policy. And a hard-working staff that performs the work of running The Bar.
The five Chief Branch Discipline Counsels hold the real power over discipline of lawyer misconduct. Once a Chief Branch Discipline Counsel makes a decision, the rest of The Bar supports the finding.
The 10 Most Important Things to Know
Eugene K. Pettis — First
African-American President of The Florida Bar
The Florida Bar Journal
July/August, 2013 Volume 87, No. 7
by Jan Pudlow
When Eugene Pettis was a little boy, a speech impediment smacked a "K" sound at the start of every word. Neighbors would tell the other Pettis kids: "Go get your
brother," because they wanted to hear Eugene talk for comical entertainment. read more
Gwynne Alice Young: President of The
The Florida Bar Journal
July/August, 2012 Volume 86, No. 7
by Jan Pudlow
When Sylvia Walbolt suggested a friend get married at her family’s place in rural Hillsborough County on Lake Josephine, she envisioned an intimate affair with a few
dozen people gathered at the dock. read
The Florida Bar 2012 Hawkins Commission Report on Discipline
Related story South Florida Business Journal by Paul Brinkmann
The Florida Bar Informational Packet, Candor Before The Tribunal
The Florida Bar Reports
The Florida Bar Ethics - Informational Packets
The Florida Bar News
The Florida Bar Journal
Florida Rules of Court Procedure
The Florida Bar Legislation of Interest to the Legal Profession
The Florida Bar Welcome to Our Legislation Page
The Florida Bar Newspaper Links
Florida State Court System Office of The Inspector General
Fla. Const. Art I, Sec. 24 Access to public records and meetings
Florida Statutes Chapter 119 Public Records
Florida Statutes Chapter 286 Public Business
Sunshine Foundation Requesting Public Records
Open Government The "Sunshine" Law
Attorney General Government-in-the-Sunshine Manual
Florida Bar Appellate Section The Pro Se Appellate Handbook
Admission to the bar in the United States Wikipedia
Public Access to Judicial Branch Records, Art. I, § 24, Fla. Const
Fla. R. Jud. Admin. Rule 2.420(m)(1)
(m) Procedure for Public Access to Judicial Branch Records. Requests and responses to requests for access to records under this rule shall be made in a reasonable manner.
(1) Requests for access to judicial branch records shall be in writing and shall be directed to the custodian. The request shall provide sufficient specificity to enable the custodian to identify the requested records. The reason for the request is not required to be disclosed.
Authority for The Florida Bar
Article V, Section 15 of the Constitution of the State of Florida [Wikipedia] gives the Supreme Court of Florida [Wikipedia] exclusive authority to regulate the admission of persons to the practice of law and the discipline of those persons who are admitted to practice. The Court performs those official functions through two separate arms: the Florida Board of Bar Examiners, which screens, tests and certifies candidates for admission to the practice; and The Florida Bar [Wikipedia], the investigative and prosecutorial authority in the lawyer regulatory process.
Prior to adoption of Florida’s current version of Article V, the Supreme Court created our state’s unified bar [Wikipedia] by its own action, in the case of Petition of Florida State Bar
Ass'n, 40 So.2d 902 (Fla. 1949). The Supreme Court further specifies the powers and duties of the Bar through its Rules Regulating The Florida Bar, which superseded the Integration Rule in 1986 that
had previously contained such guidance - see In
Re Rules Regulating The Florida Bar, 494 So.2d 977 (Fla.1986).
From the email August 20, 2013 of Jenny R. Jolinski, CRM CDIA+, Records Manager, The Florida Bar, re "Per our General Counsel".
- History of The Florida Bar
- Frequently Asked Questions About The Florida Bar
- Link to The Florida Bar’s Financial Statements
TFB Integration - 1949 Petn to Integrate[...]
Adobe Acrobat document [1.5 MB]
Petition of Fla State Bar Assn 40 So2d 9[...]
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The Florida Supreme Court - 7 lawyers to regulate 100,000 members of The Florida Bar
Adobe Acrobat document [226.4 KB]
Reprinted 1995 by the Supreme Court of Florida
Originally published at 18 Nova L. Rev.1151 (1994)
The Operation and Jurisdiction of the Supreme Court of Florida (PDF) HARRY LEE ANSTEAD, GERALD KOGAN, THOMAS D. HALL, ROBERT CRAIG WATERS
In Florida the admission of attorneys to the practice of law is a judicial function. This board is an administrative agency of the Supreme Court of Florida created by the Court to handle matters of bar admission. The primary purpose of the character and fitness screening before admission to The Florida Bar is to protect the public and safeguard the judicial system. The primary purpose of the bar examination is to ensure that all who are ultimately admitted have demonstrated minimum technical competence. In order to be admitted in Florida, an applicant must have proof of good moral character and must successfully complete the Florida Bar Examination. Notice, public seat vacancies, February 13, 2014.
The Florida Board of Bar Examiners Re: J.R.B. [November 20, 2014]
Summer 2014 Bar Examination Results
Response of Robert Blythe, Florida Board[...]
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2009, Character and Fitness Commission R[...]
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Oath of Admission to The Florida Bar
Revised admission oath now emphasizes
The Florida Bar News
By Jan Pudlow, Senior Editor
October 1, 2011
In an adversarial system, lawyers don’t always play nice. Attorneys don’t always address their arguments to the court, sniping at each other instead. Polite communication devolves into snarky emails. Tempers flare at depositions. Good manners, professionalism, and civility sometimes get lost in the fray of winning a case.
So, on September 12, the Florida Supreme Court added this new language to the Oath of Admission to The Florida Bar, sworn to by every new lawyer, effective immediately:
"To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications."
"It’s something that should have been in the oath of admission from the beginning, in my opinion," said Robert A. Cole, of Jacksonville, immediate past president of FLABOTA, the state chapter of the American Board of Trial Advocates that has been working on this issue for years, along with The Florida Bar and law schools.
"We should all treat each other with professionalism and civility. It should be understood. But I think it’s just reacting to the lack of civility that is going on in our society as a whole — not just the legal profession. I think it was the right thing to do by the Supreme Court."
Acting on its own in a unanimous decision in Case No. SC11-1702, the court noted two trends: Growing concerns in recent years about incivility among attorneys, and that ABOTA, among others, have taken steps to raise the level of awareness about the importance of civility in practicing law. Read more
Oath of Admission to The Florida Bar (Center for Professionalism)
In re: Oath of Admission to the Florida Bar, 73 So.3d 149 (Fla.2011)
Supreme Court of Florida
September 12, 2011
OATH OF ADMISSION
I do solemnly swear:
I will support the Constitution of the United States and the Constitution of the State of Florida;
I will maintain the respect due to courts of justice and judicial officers;
I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;
I will employ, for the purpose of maintaining the causes confided in me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;
I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval;
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;
I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;
I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.
SC11-1702, ABOTA Code, Bar Rule 3-4.7
OATH OF ADMISSION SC11-1702-ABOTA Code-B[...]
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Florida Bar Disciplinary Statistics
In financial year 2007-2008 the bar spent $9,968,598 on lawyer discipline, which amounts to a cost per sanction of $24,137.04 according to the bar’s
Florida Bar Disciplinary Statistics for years 1996-2014
1996-2014 Florida Bar discipline statist[...]
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Florida Bar admits statistics snafu.pdf
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No private right of action against The Bar (so it says)
The decision whether to initiate disciplinary proceedings is solely within the discretion of The Florida Bar, subject only to the review by the Florida Supreme Court. The Bar contends that no private right of action against The Bar exists in any person for the failure to institute disciplinary proceedings. Read more here about how The Bar defends lawsuits in The Florida Bar General Counsel’s Litigation Status Report of September 15, 2008.
2008, 11-24-08, Litigation Status Report[...]
Adobe Acrobat document [2.5 MB]
The information and opinion below about Petition of FLORIDA STATE BAR ASS'N is from the website of Able Legal Forms, and is not the opinion of the Justice Network. The information and opinion is provided by the Justice Network solely as a public service.
Link to information and opinion on Able Legal Forms
[40 So.2d 902, 1949 Fla.SCt 374]
Petition of FLORIDA STATE BAR ASS'N et al.
Supreme Court of Florida, en Banc.
Decided June 7, 1949.
This document records the official surrender, on June 7, 1949, of Florida's third branch of government, the Supreme Court of Florida, to a private professional trade
group formerly known as the Florida State Bar Association and now known as The Florida Bar. This government takeover set the stage for the present day graft and corruption now found in Florida's
Since the signing of this court order, The Florida Bar has amassed over 35 million dollars in private assets, not the property of the state. Annual membership dues from The Florida Bar's present day membership exceed 11.5 million dollars. All this loose unregulated cash in the hands of Florida Bar leaders, absent legislative control of its use, has created an oppressive monster and has fed the corruption and judicial abuse presently experienced by members and non-members of The Florida Bar.
This order enabled a private professional trade association to establish a monopoly in the dissemination of information to the public about our laws and our legal system and enabled the use (abuse) of the power of the State to put down Bar members' competition, under color of law. At the time of the signing of this order of surrender, 27 judicial branches of other states had already fallen victim to the same scheme.
Persons not members of The Florida Bar who criticize the status quo or challenge the monopoly are charged with the unlicensed practice of law (UPL) and are prosecuted without due process of law and are denied a jury trial. Members are usually harassed by their peers and/or are threatened by Bar leaders if they should attempt to expose the ugly truth, with their "licenses" to practice law placed in jeopardy.
As a result, our state and federal judicial systems have become a forum for only the wealthy and the powerful. Persons of lesser financial status only receive the amount of "justice" their bank accounts can buy. Our system of justice has been reduced to nothing more than a government-protected racket designed to enrich a select few. In other words and in simple terms, justice is for sale in Florida, but it is not "on sale."
Read on and learn how all this started with the help of the American Judicature Society and is perpetuated by the American Bar Association and the "unified" state bar associations, then contact your legislators and the Governor's Office. Demand action to remedy this nation-wide travesty of justice. Read more
....................Florida Lawyer-Judge Scandals........................
Florida Foreclosure King David J. Stern
There was no justice for homeowners wrongly foreclosed by David J. Stern Enterprises (DJSE). Florida Attorney General Pam Bondi did not prosecute Mr. Stern or DJSE for foreclosure related crimes.
David J. Stern Disbarred, Order SC13-643
Penalty: 49 cents per 100,000 abandoned foreclosure cases
The Florida Supreme Court gave David J. Stern a sweetheart disbarment deal: 49 cents per 100,000 abandoned foreclosure cases, which The Bar’s Referee Nancy Perez wrote "created chaos on the courts of the state of Florida, prejudicing the whole system as a whole." (page 4, Report of Referee SC13-643).
Mr. Stern gets to keep a $58.5 million cash windfall for the sale of his back-office document preparation services, according to the Palm Beach Post in a story by Jeff Ostrowski posted Tuesday, October 29th, 2013 Foreclosure king on verge of losing law license, but keeps $58.5 million windfall.
The Florida Supreme Court Order SC13-643 is an embarrassment to the rule of law, signed "POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur" who approved a 49 cents per case settlement in the disbarment of Mr. Stern. (Florida Bar Complaint for David J. Stern) For more see,
No response from Chief Justice John Roberts; corrupted Supreme Court Petitions No. 12-7747 and No. 13-7280, Justice Network blog
Federal Housing Finance Agency, Office of Inspector General, FHFA-OIG, Justice Network blog
Portrait of Injustice and Corruption
We are above the law. We answer to no one.
Thirteenth Judicial Circuit Judge Claudia Rickert Isom received the Distinguished Judicial Service Award while a Respondent in Petition No. 12-7747 for writ of certiorari to the Supreme Court of the United States. The Thirteenth Judicial Circuit was also a Respondent No. 12-7747
The award was given to Claudia Isom to rehabilitate her image. The Florida Bar’s announcement notes, "As a jurist, Judge Isom is not permitted to participate in direct pro bono legal services; however, she is still committed to pro bono work and giving back to the community."
The award was presented to Isom January 31, 2013, more than 2 weeks before a decision was rendered in Petition No. 12-7747. This early confidence suggests Ricky Polston et al. knew the outcome of my petition well before the U.S. Supreme Court Conference on February 15, 2013.
In addition, Florida Solicitor General Timothy Osterhaus failed to appear in Petition 12-7747 on behalf of Florida Attorney General Pam Bondi to represent the State of Florida before the U.S. Supreme Court. The Attorney General also failed to file a waiver to respond to the petition.
Certainly Ricky Polston, Claudia Isom, and Gwynne Young knew only the Attorney General of Florida may represent the State of Florida in a federal court action. [Art. IV, § 4(b), Fla. Const., F.S. § 16.01(5), and State ex rel. Shevin v. Weinstein, 353 So. 2d 1251 (Fla. Dist. Ct. App. 3d Dist. 1978)].
Yet none of them objected when Attorney General Bondi let Ryan Christopher Rodems be the only Respondent to file a waiver of the right to file a response to the petition. Mr. Rodems is a lawyer in private practice who’s firm stole $7,143 from my settlement in the Amscot case, and is the basis for the petition.
The Supreme Court docket for Petition No. 12-7747 shows the proceedings and orders:
- Aug 13 2012 Application (12A215) to extend the time to file a petition for a writ of certiorari from October 11, 2012 to December 10, 2012, submitted to Justice Thomas.
- Sep 13 2012 Application (12A215) granted by Justice Thomas extending the time to file until December 10, 2012.
- Dec 10 2012 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due January 14, 2013)
- Dec 20 2012 Waiver of right of respondents Rayan (sic) Christopher Rodems; and Barker, Rodems & Cook, P.A. to respond filed.
- Jan 24 2013 DISTRIBUTED for Conference of February 15, 2013.
- Feb 13 2013 Supplemental brief of petitioner Neil J. Gillespie filed. (Distributed)
- Feb 19 2013 Petition DENIED.
- Mar 18 2013 Petition for Rehearing filed.
- Mar 27 2013 DISTRIBUTED for Conference of April 12, 2013.
- Apr 15 2013 Rehearing DENIED.
Also see the following documents:
- Letter to Mr. Alberto Pimentel, Storbeck/Pimentel & Associates, Inc., with authentication of the photograph by Beth C. Schwartz, Court Publication Writer, OSCA.
- Petition No. 12-7747 for writ of certiorari, Supreme Court of the United States.
- Index to Petition No. 12-7747; 2012 Rule 13.5 Applications; 2011 Rule 22 Applications.
- Orders and letters from the Supreme Court of the United States, Petition No. 12-7747.
- Judicial Immunity vs. Due Process, by Robert Craig Waters, Cato Journal.
“In the American judicial system, few more serious threats to individual liberty can be imagined than a corrupt judge. Clothed with the power of the state and
authorized to pass judgment on the most basic aspects of everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution. The injuries inflicted may be
severe and enduring. Yet
the recent expansion of a judge-made exception to the landmark Civil Rights Act of 1871, chief vehicle for redress of civil rights violations, has rendered state judges immune from suit even for
the most bizarre, corrupt, or abusive of judicial acts.’ In the last decade this “doctrine of judicial immunity” has led to a disturbing series of legal precedents that effectively deny citizens any
redress for injuries, embarrassment, and unjust imprisonment caused by errant judges....”
Judicial Immunity vs. Due Process: When Should A Judge Be Subject to Suit? Robert Craig Waters, Cato Journal, Vol.7, No.2 (Fall 1987). The author is [was] Judicial Clerk to Justice Rosemary Barkett of the Florida Supreme Court.
UPDATE February 18, 2015. Read more on my blog.
Supreme Court records obtained show certain pleadings, letters and other documents filed in Petition No. 12-7747 were received by the Supreme Court January 24, 2013 (date stamped Received, Jan 24 2013 Office of the Clerk, Supreme Court, U.S.). But those pleadings, letters and other documents do not appear on the Supreme Court’s docket for Petition No. 12-7747.
Therefore a reasonable person could conclude that U.S. Supreme Court Petition No. 12-7747 was compromised. A reasonable person might also conclude that the compromise of Petition No. 12-7747 was due to "a special relationship with the Chief Justice of the Untied States" with former Florida Chief Justice Ricky Polston, Thirteenth Judicial Circuit Judge Claudia Rickert Isom, and former Florida Bar President Gwynne Alice Young.
UPDATE January 21, 2015. Read more on my blog.
On information and belief, the foregoing is evidence of misconduct by former Chief Justice Ricky Polston, Judge Claudia Rickert Isom, and Florida Bar President Gwynne Alice Young. Presenting Claudia Isom the Distinguished Judicial Service Award while Isom was a Respondent in Petition No. 12-7747 for writ of certiorari to the Supreme Court of the United States, along with the Thirteenth Judicial Circuit, is conduct unbecoming a member of the bar that is prohibited by Rule 46 of the Federal Rules of Appellate Procedure because it implied "a special relationship with the Chief Justice of the Untied States".
In determining what conduct violates Rule 46, an earlier Supreme Court [In re Snyder 472 U.S. 634, 645 (1985)] found tribunals should consider "case law, applicable court rules, and ‘the lore of the profession,’ as embodied in codes of professional conduct," such as the ABA Model Rules of Professional Conduct.
Judge Isom's appearance January 31, 2013 in the Florida Supreme Court Chamber violated, inter alia, Rule 8.4(e) of the Model Rules, which
says it is professional misconduct for an attorney to "state
or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law."
The Distinguished Judicial Service Award itself appears to be a sham anyway. Officially the award "honors outstanding and sustained service to the public especially as it relates to support of pro bono legal services". But for the past three years the award was given to judges or a spouse who in my Hillsborough case denied me basic due process.
In 2012 Judge James M. Barton, II,
got the Distinguished Judicial Service Award, presented by the Chief Justice Polston in the Supreme Court. Barton presided over my case in Hillsborough
County (05-CA-7205) from February 13, 2007 through May 25, 2010. The record shows Barton collaborated with Mr. Rodems and my lawyer Robert W. Bauer (a Bar referral) to undermine my
case. On January 13, 2006 I established by Order of Judge Nielson a cause of action against Rodems and his firm in the theft of $6,224.78 ($7,143) through a closing statement fraud. My
motion and affidavit for summary judgment were filed April 25, 2006 and noticed for hearing. Tellingly Bauer did not argue my summary judgment. Instead he assisted Rodems & Barton.
In 2013 Judge Claudia R. Isom got the Distinguished Judicial Service Award, presented by the Chief Justice Polston, see attached. Isom presided over my case in Hillsborough County (05-CA-7205) from November 22, 2006 through February 13, 2007.
In 2014 Judge Emily Peacock got the Distinguished Judicial Service Award, presented by the Chief Justice Polston at a Jan. 30 ceremony at the Supreme Court of Florida. Emily Peacock is married to Mike Peacock, the Public Defender who failed to represent me June 1, 2011 after he was appointed to do so. Judge Arnold relieved the public defender from the counsel appointment claiming no basis. But Arnold had other basis to appoint counsel, including the ADA, and under Fla. Stat. § 29.007 (2011) "This section applies in any situation in which the court appoints counsel to protect a litigant’s due process rights.", according to the ABA.
Former lawyer Scott Rothstein is one of the most notorious members of the Florida Lawyer Scandal. Rothstein ran a $1.2 billion investment scam right under the nose of The Florida Bar. Rothstein was a member of a Florida Bar grievance committee. Former Gov. Charlie Crist appointed Rothstein to the Fourth District Court of Appeal Judicial Nominating Commission.
Charlie Crist is also a member of The Florida
Why Suspicions About Fla. Firm's Alleged Ponzi Scheme Weren't Voiced
Daily Business Review
December 7, 2009
Plenty of smoke surrounded attorney Scott Rothstein and his well-heeled Fort Lauderdale, Fla., law firm. But nobody called the fire department until it was too late.
The worst-kept secret in the South Florida legal community this fall was that the firm Rothstein Rosenfeldt Adler spent more money on payroll than it had coming in the door. The firm spent three times more on advertising than the three biggest firms in the region combined.
"Obviously, that business model didn't work," said Florida Bar president Jesse Diner, a Fort Lauderdale attorney with Atkinson Diner Stone Mankuta & Ploucha. "A lot of it didn't make sense."
Chuck Malkus, who runs Malkus Communications Group in Fort Lauderdale, served on the board of the charity Neighbors 4 Neighbors, which refused to accept a Rothstein donation.
"This was building up for over a year, and many of us believe this is just the tip of the iceberg," Malkus said. "I wish I picked up the phone and called the FBI."
The highly secretive Rothstein made sure nobody within or outside the firm had the smoking gun needed to go to authorities or to The Bar.
"It was very surprising that a lawyer nobody ever heard of a few years ago is suddenly throwing around money in a recession," said Robert Jarvis, a law professor at Nova Southeastern University's Shepard Broad Law Center.
"Of course it raised lots and lots of eyebrows, but that is not enough."
According to the U.S. Attorney's office, there were no legitimate complaints about Rothstein to federal agencies. And The Bar never launched a serious investigation until Rothstein returned from Morocco early last month to face his accusers and voluntarily surrendered his law license.
The man who hobnobbed with sports figures, celebrities and top-tier politicians allegedly burned through $1.2 billion in an alleged Ponzi scheme related to bogus investments in lawsuit settlements, targeting friends and clients of RRA.
He spent millions of dollars on himself, buying sports cars, yachts, mansions and expensive jewelry.
Now he sits in a federal detention center facing a litany of fraud charges. As a result, the South Florida legal profession collectively is nursing a black
Attorneys worry how the Fort Lauderdale powerbroker's spectacular downfall might affect the public trust in the profession, which is implicitly relied upon as an honest broker in business and policy matters in both the public and private sector.
"Here we have an attorney, an officer of the court, whose core values should be honesty and integrity, and instead he is unlawfully enriching himself at the expense of his clients," said Daniel Auer, the special agent in charge of the Internal Revenue Service for the Miami field office for criminal investigation.
When asked about Rothstein, local lawyers put on their best face. Rothstein is the cliché "one bad apple," said some, pointing to the many attorneys who do unsung pro bono work for clients who can't afford legal services. They said Rothstein may have been an attorney, but he was a conman first and foremost.
"I don't think he made us all look bad. I think he made lawyers wearing $5,000 suits and driving $500,000 cars look bad," said David Markus, a Miami criminal defense attorney.
Ed Davis, a founding shareholder in Miami's Astigarraga Davis, said Rothstein's alleged actions didn't help the breach of trust issues the public always has with
attorneys, "but you can't judge the entire profession by the acts of a few."
Still, if there is only 1 percent of bad lawyers in a state with 85,000 attorneys, the public could be more than vulnerable, Jarvis said.
"That is 850 rogue attorneys. That is a lot of rogues," Jarvis said. "So is the glass half full? There are a lot of bad lawyers out there, just like there are a lot of bad doctors, bad car salesmen and bad journalists."
Still, the rumors that Rothstein and his firm were far from legitimate were a main topic of conversation in early October among attorneys lunching along Fort Lauderdale's Las Olas Boulevard, where RRA had its offices.
Within weeks, Rothstein had flown to Morocco in possession of millions, only to have a change of heart and return to face charges of racketeering, fraud and money laundering.
Attorneys said they had confronted some RRA attorneys, who pointed to full-page advertisements glorifying the firm's legitimacy.
And there were some who were wary of Rothstein and his piles of cash from the start. "The question always was: Where is the money coming from? We don't see him in court. The rumor was they were behind some deals," Malkus said.
There were no deals. Just bogus and forged paperwork, prosecutors said in a criminal information filed last week after federal agents arrested Rothstein.
RRA was, in essence, a front for illegal activity, bringing in $8 million in business a year with $18 million in payroll.
Federal investigators want to know who in the firm averted their eyes to apparent crimes -- or, worse, were complicit with Rothstein.
"There is deliberate ignorance, which is not an excuse," acting U.S. Attorney Jeff Sloman said.
Diner, The Florida Bar president, said there was not a lot the organization that regulates attorneys could do without a legitimate complaint about Rothstein's business practices.
"It's a very interesting question if The Bar can be preemptive," Diner said. "The Bar is not in the position of just going out willy-nilly and auditing people."
Diner said that in the future The Bar should take a more proactive role when there are such questions about an attorney's practices.
No doubt, any Bar investigator would have had his hands full with the blustery Rothstein, who protected his empire with threats of litigation against anyone who questioned it.
Diner said The Bar is concerned with other RRA attorneys who may have been complicit in making political donations in return for bonuses or expense reimbursements. He said attorneys also may have violated ethics standards by not reporting Rothstein's questionable business practices and promoting themselves as partners of the firm when they were not fulfilling their fiduciary duties by keeping track of trust funds.
RRA partner Stuart Rosenfeldt has said Rothstein refused to show him the firm's financial books.
"There are certainly ethical concerns, and it doesn't stop with the disbarment of Scott Rothstein," Diner said. "The law firm is going to have to be looked at closely."
But can one really blame attorneys who accepted good salaries during a recession, or charities that didn't want to reject generous gifts from a man they believed was a respected attorney?
Yes, says Jay Cohen, a Fort Lauderdale attorney and member of The Florida Bar's Board of Governors.
"I don't think that's a hard decision," he said. "If there is any potential wrongdoing, if there is any question as to either the source of the funds or with the manner in which the funds are distributed, I don't think that's a hard question."
For law enforcement's part, Sloman said that without a complaint from a member of the public, there is little federal authorities can do. The FBI can't operate on mere rumor.
2009, 12-07-09, Why Suspicions About Fla[...]
Adobe Acrobat document [25.2 KB]
Scott Rothstein is Naming Names, Sings Like a Bird
ABA Journal Law News Now
by Martha Neil
December 13, 2011
Convicted swindler Scott Rothstein has emerged from the federal witness protection program and is being deposed by 30 attorneys in federal court in Miami, in a high-security closed-door bankruptcy proceeding that began yesterday and is expected to take about two weeks.
The 49-year-old disbarred Florida lawyer is naming names, says attorney William Scherer, who represents plaintiffs in litigation against Rothstein, to the Sun-Sentinel. And Rothstein has identified three law firms that, he says, aided his fraud of $1.2 billion or more by going along with his lies. Read more
C-Span Interview w/Dave Marston, Malice Aforethought
Opinion: How lawyer discipline really works
The Justice Network
by Neil Gillespie
Lawyer discipline, when it occurs, generally falls into one of several categories.
1. The matter makes headlines and cannot be overlooked, such as financial or sex crimes where law enforcement is involved. Examples include Miami lawyer Lewis B. Freeman who plead guilty in a $2.6 million embezzlement scheme, Sarasota lawyer John Yanchek who pled guilty in a $83 million loan fraud scam, or Florida lawyer Scott Rothstein and his ponzi scheme.
2. The lawyer fails to respond to an inquiry. The Bar hates to be ignored. Those who ignore The Bar are sternly admonished. So long as the lawyer responds to a
complaint, The Bar will usually accept most any excuse from the lawyer and the inquiry will likely be closed with a finding of no probable cause.
3. The lawyer becomes a political liability to The Bar. One such lawyer is John Bruce "Jack" Thompson known as an activist against violence and sex in video games. Thompson was disbarred March 20, 2008. He is also a vocal critic of The Bar.
4. Retaliation for criticzing misconduct by other lawyers, judges or The Florida Bar. Former US Attorney and Harvard Law School grad David W. Marston, a Philadelpia lawyer, compared the legal business to the Mafia in "Malice Aforethought, How Lawyers Use Our Secret Rules To Get Rich, Get Sex, Get Even...And Get Away With It", an exposé of America's legal profession.
"They all have undergone the same tough initiation, and once admitted to membership, all have sworn the same oath. They live by their own rules and have fiercely resisted efforts by outsiders to penetrate their clan. The have a code of silence that makes the Mafia’s dreaded omerta seem gossipy. And while the organization rigidly limits the operations of its members to their assigned turf, their criminal activities within these areas are surprisingly varied." (Page 22, paragraphs 4 & 5)
"The organization enforces its own discipline, and outsiders can piece together only the most fragmentary picture of the process. But while hard statistics about
crime and misconduct by its members remain elusive, there has unquestionably been a sharp escalation in recent years" (Page 23, paragraph 2)
"In every state, the organization has tentacles that reach into the legislature, as well as intimate knowledge of the local criminal justice system. Laws that might threaten operations are vigorously opposed, and when members are convicted of crimes, punishments are often lenient." (Page 23, paragraph 4)
"It’s not the Mafia. Not the Medellin drug cartel…The members are all lawyers. And the organization is the American legal profession." (Pages 23-24) Malice Aforethought
- Fla. Bar Rule 4-8.3 Reporting Professional Misconduct
- ABA Model Rule 8.3 Reporting Professional Misconduct
5. There may be a few cases of actual misconduct that are disciplined, but those are few and far between, and most likely of lawyers who are unpopular respondents without connections.
Conclusion. The current system is arbitrary and not likely to change. As one Tampa lawyer explained to me, it is important to report misconduct, and perhaps on the 20th complaint against a lawyer for repeat bad behavior The Bar will act. This is a violation of the public trust, reflects discredit upon lawyer discipline, and suggests partiality in the consideration of complaints.
Regulation of the Practice of Law by The Florida Bar
Ken Marvin Responds to Claim of Serial Lawyer Misconduct
December 7, 2011
Ken Marvin Director of Lawyer Regulation for The Florida Bar. Marvin responded by letter December 7, 2011 to my question about serial lawyer misconduct: "It seems a small percentage of Florida's lawyers are responsible for the bulk of the alleged misconduct. This undermines the profession and respect for the courts. Why is The Bar reluctant to stop the practice of this small number of lawyers who misuse their law license in a manner of revenge against people with legitimate disputes?" Below is the response of Ken Marvin.
Note: Mr. Marvin retired December 31, 2013. Adria Quintela is currently the Director of Lawyer Regulation.
Response of Ken Marvin TFB Dec-07-2011.p[...]
Adobe Acrobat document [162.8 KB]
Attorney and journalist Amy Bach spent eight years investigating the widespread courtroom failures that each day upend lives across America. In the process, she discovered how the professionals who work in the system, however well intentioned, cannot see the harm they are doing to the people they serve. The book is Ordinary Injustice, How America Holds Court.
Winner of the 2010 RFK Book Award.
The legal profession's "stop snitchin" culture of silence
The legal profession’s "stop snitchin" culture of silence
Lawyers and judges have an individual duty to report wrongdoing in the profession. Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.
The Rules Regulating the Florida Bar, Chapter 4, Rules of Professional Conduct, section 4-8 Maintaining the Integrity of the Profession, Rule 4-8.3 Reporting Professional Misconduct states:
4-8.3(a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.
4-8.3(b) Reporting Misconduct of Judges. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
The legal profession’s code of silence, and widespread violation of Rule 4-8.3, is a conspiracy to obstruct justice and deny honest services, aided and abetted by the Florida Bar under the color of law.
In other words, The Florida Bar punishes lawyers who speak out about wrongdoing in the profession, and protects bad lawyers and judges guilty of misconduct. This is evidence that the Florida Bar operates as a Racketeer Influenced and Corrupt Organization. It is a violation of the public trust, brings discredit to the practice of law, and undermines public confidence in the rule of law, our courts, and system of governance.
Grievance Committee - The Florida Bar’s "grand jury"?
The Florida Bar’s "Notice of Grievance Procedures" provided to Bar complainants and respondents makes this misleading statement in paragraph 4:
The grievance committee is the Bar's "grand jury." Its function and procedure are set forth in Rule 3-7.4. Proceedings before the grievance committee, for the most part, are nonadversarial in nature. However, you should carefully review Chapter 3 of the Rules Regulating The Florida Bar.
In fact, the claim by The Florida Bar that that the grievance committee is a "grand jury" is profoundly misleading. The grievance committee bears little in common with an actual grand jury, which is convened to gather facts about wrongdoing and make a public finding, called a presentment, for consideration of bringing charges by a prosecutor. An actually grand jury takes testimony under oath that is transcribed and part of the record.
In contrast, The Florida Bar’s grievance committee does not take sworn testimony, and the evidence gathered is kept confidential, unless the committee votes to bring charges. However since the testimony is not sworn, the process encourages dishonesty by the respondent to evade discipline and obstruct justice.
As set forth in my April 11, 2011 email to James Watson, Chief Branch Disciplinary Counsel, Tallahassee Branch, The Bar’s "grand jury" allows violation of Rule 4-8.4(c) and (d) by respondents and their supporters to evade discipline. The result is a new breach of the ethics rules, specifically Rule 4-8.4 Misconduct:
- Rule 4-8.4(c), conduct involving dishonesty, fraud, deceit, and misrepresentation
- Rule 4-8.4(d), conduct prejudicial to the administration of justice
The grievance committee of The Florida Bar, by design under color of law, allows dishonesty, fraud, deceit, and misrepresentation which is prejudicial to the administration of justice, and a denial of honest services. See my email below (PDF) to Mr. Watson.
2011, 04-11-11, email, NJG to Jim Watson[...]
Adobe Acrobat document [157.9 KB]
The Florida Bar
Notice of Grievance Procedures.pdf
Adobe Acrobat document [64.7 KB]
Judicial Administration & Evaluation Corrupt the Courts
The Judicial Administration and Evaluation Committee has the responsibility of accepting specific assignments from the Board of Governors in areas regarding the
judiciary. The committee prior to each legislative session reviews all legislation prefiled pertinent to the judiciary and makes recommendations either to the Board of Governors or the Legislation
The committee is concerned with obtaining and then retaining qualified judicial officers. Not only are the selection and retention processes monitored, but consideration is also given to making judicial offices more attractive to qualified attorneys. Read more
This Confidential Judicial Feedback advertisement appeared May 15, 2010 in The Florida Bar News. The ad proclaims "How will judges know how you judge their performance in court if you don’t tell them? Here’s your chance…
It’s simple! All you need is your Bar number and password to communicate to the judges you appeared before.
You read that right. Florida judges are subject to performance review by lawyers. The review is done by completing the Confidential Judicial Feedback Form
The public, and pro se nonlawyer litigants, cannot submit confidential judicial feedback. This gives members of The Florida Bar substantial influence over the judiciary. This is in addition to the considerable influence lawyers already have over the judiciary, such as control of the Judicial Nominating Commission (JNC), campaign contributions, and the formation committees in support or opposition of judicial candidates.
The Confidential Judicial Feedback appears little more that an attempt by lawyers for undue influence over the judiciary. Its bad enough that judges are elected in Florida. This de facto job evaluation of judges is outrageous. What is your opinion?
Why not let nonlawyers help regulate the legal profession? Law prof makes case for change
Why not let nonlawyers help regulate the legal
profession? Law prof makes case for change
ABA Journal Law News Now
By Debra Cassens Weiss
May 20, 2013
Lawyers are not all-knowing and could benefit by allowing nonlawyer outsiders to help regulate the profession, a law professor says in a law review article.
Washington and Lee law professor James Moliterno tells the Wall Street Journal Law Blog (sub. req.) that nonlawyers should be allowed to serve in leadership and policy positions in the ABA and state bar associations, where they could help set standards for the profession. He makes his case in an Emory Law Journal article (PDF) and a new book, The American Legal Profession in Crisis: Resistance and Responses to Change.
In an interview with the Law Blog, Moliterno outlines possible changes if nonlawyers help govern the profession. There could be a movement to a national law license or a relaxed admission-on-motion system to allow freer law practice across borders. Ethics rules barring nonlawyer ownership of law firms would likely be relaxed. And entities such as LegalZoom and Rocket Lawyer would gain ground as a way to assist low- and middle-income people needing legal help.
Here are some excerpts from Moliterno’s article:
"The profession seems to repeat the same question in response to every crisis: How can we stay even more ‘the same’ than we already are? In short, the legal profession is ponderous, backward looking, and self-preserving. …
"I recommend a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises. My hope is that the legal profession can be more like companies that have thrived because of their innovative tendencies (e.g., Apple, IBM, and Western Union), and less like companies whose stagnancy caused large-scale problems (e.g., Kodak). …
"History demonstrates that lawyers are inept at being their own exclusive regulators. Lawyers tend to look backward to precedent and sideways to existing articulations of law. When lawyers do look forward, their primary task is to predict and guard against risk. It is not in lawyers’ nature to be forward-looking planners or sensitive to cultural trends. …
"The unwelcome cure is to enlist nonlawyers—planners and evaluators of cultural trends—in the regulation of the legal profession. These people, who have a wider view and can see the path ahead and not merely the ground already trod, can regulate the legal profession without the same self-interest as established members of the bar." Read more
The Trouble With Lawyer Regulation, Molo[...]
Adobe Acrobat document [340.8 KB]
Courthouse blogger faces Bar
scrutiny after criticizing judges
By Rafael Olmeda
May 18, 2013
A Fort Lauderdale lawyer whose courthouse blog trades in news and gossip about South Florida's legal community is fighting off an investigation by the Florida Bar after publishing articles that criticized judges in Palm Beach and Broward counties.
Bill Gelin, 46, is widely known as the main writer and publisher of the posts that appear on JAABlog, which started as an arm of a group called the Justice Advocacy Association and now is all that's left of it.
The Florida Bar, which governs the conduct of the state's attorneys, confirmed that it has opened two investigations into Gelin's conduct specifically related to the blog. Bar spokeswoman Karen Kirksey declined to answer more specific questions, citing Bar rules. The Bar also would not disclose whether anyone complained about the articles or whether the Bar initiated the investigation on its own.
Nova Southeastern University law professor Bob Jarvis said the Bar's action may provide a long-needed test case to determine just how far a lawyer can go in exercising his First Amendment right to criticize judges without jeopardizing his professional standing.
Since its inception in 2006, JAABlog has frequently targeted the Broward State Attorney's Office and judges who sit on the bench in Broward, less frequently reporting on Miami-Dade and Palm Beach counties.
The Bar investigation is focusing on articles criticizing Broward County Judge Robert Diaz and Palm Beach County Judge Marni Bryson.
In 2012, JAABlog made sport of cataloging Diaz's daily court calendar, painting a picture of a jurist who spends little time hearing cases. Diaz did not return a call from the Sun Sentinel seeking comment.
The first item about Bryson appeared in January.
"Anyone familiar with the blog knows we've got a whole new, all-consuming purpose in life, and its name is Marni," the article said. It pointed to unfavorable coverage of her in The Palm Beach Post, including allegations of possible campaign finance violations during her 2010 run for office.
Reached by phone Friday, Bryson declined to comment.
Within weeks of that article's appearance, Gelin received letters from the Bar asking him whether he wrote it and the articles about Diaz.
Attorney Norm Kent, who is representing Gelin, said his client doesn't have to answer. In a May 14 letter, Kent chided the Bar for questioning Gelin without explaining what Bar rule he is alleged to have violated.
The Bar has rules barring lawyers from bringing the profession into disrepute and criticizing judges with false or reckless statements, but Gelin said they don't apply to the posts on JAABlog.
"As long as I tell the truth and it's accurate, I can say whatever I want," Gelin said.
email@example.com, 954-356-4457 or Twitter @SSCourts
American Bar Association - ABA
American Bar Association (ABA)
American Bar Association (ABA), Wikipedia
American Bar Association’s Mission:
"To serve equally our members, our profession and the public by
defending liberty and delivering justice as the national
representative of the legal profession."
ABA Model Code of Professional Responsibility, Wikipedia
During a key debate in late January 1982 over whether to replace the Model Code with the Model Rules, one delegate "referred to the nine canons, 129 ethical considerations and forty-three disciplinary rules as a three-dimensional chess game that lawyers played at their own peril." Read more
"The Commission advocates for the legal rights of persons with disabilities, seeking to eliminate the obstacles created by stigma and prejudice based on stereotypes and to ensure their equal participation and meaningful inclusion in society."
ABA Commission on Mental and Physical Disability Law
The ABA Commission on Disability Rights (CDR) consists of 15 members appointed by the ABA President-elect on an annual basis. It meets bi-annually. Katherine H. O'Neil, Esq. currently sits as Chair of the Commission.
The ABA’s Commission on the Mentally Disabled was established in 1973 to respond to the advocacy needs of persons with mental disabilities. After the passage of the Americans with Disabilities Act of 1990, the ABA broadened the Commission’s mission to serve all persons with disabilities and changed its name to the Commission on Mental and Physical Disability Law. In 2011, the members changed the name to the Commission on Disability Rights to better reflect its mission. Today, the Commission carries out an array of projects and activities addressing disability-related public policy, disability law, and the professional needs of lawyers and law students with disabilities. Read more
A New Look: ABA Plans First Comprehensive Review of Disciplinary Enforcement Rules in 20 Years
A New Look: ABA Plans First Comprehensive Review
of Disciplinary Enforcement Rules in 20 Years
ABA Journal Law News Now
By James Podgers
Nov 1, 2012
Just as the ABA Commission on Ethics 20/20 is winding down its review of the association’s Model Rules of Professional Conduct, another entity is gearing up to take a comprehensive look at the Model Rules for Lawyer Disciplinary Enforcement.
There is some logic to that coincidental timing, says Myles V. Lynk, who chairs the ABA Standing Committee on Professional Discipline, which will review the disciplinary enforcement rules. The two sets of model rules serve as bookends for the ABA’s guidance to states on the substance and procedure of their professional conduct systems for lawyers.
At one end of the system, the Model Rules of Professional Conduct are the direct basis for the substantive ethics rules for lawyers in every state except California (which uses a unique format combining rules and standards). Under Model Rule 8.4, it is professional misconduct for a lawyer to violate rules of professional conduct, or engage in other wrongdoing under ethics rules or substantive law. Model Rule 8.5 recognizes that a state where a lawyer is admitted to practice has primary disciplinary jurisdiction over that lawyer.
Since 2009, the Ethics 20/20 Commission has been studying the impact of technology and globalization on the Model Rules. In August, the ABA House of Delegates approved a series of revisions to the Model Rules proposed by the commission. Later this year, the commission will submit its final recommendations for consideration by the House in February at the 2013 ABA Midyear Meeting in Dallas.
At the other end of the system, the Model Rules for Lawyer Disciplinary Enforcement set forth a procedural framework at the state level for investigating and prosecuting complaints against lawyers in a fair and efficient manner while providing appropriate due process for the lawyers who are subject to allegations of wrongdoing.
MAKE NO ASSUMPTIONS
The disciplinary enforcement rules haven’t been reviewed in their entirety since the early 1990s—shortly after their adoption by the House of Delegates in 1989—so they’re due for a thorough checkup, says Lynk, who is a professor at Arizona State University’s Sandra Day O’Connor College of Law in Tempe. "Simply as a matter of due diligence and good practice, we should review the Model Rules on a regular basis," he says, to determine whether there are provisions that have become unworkable or whether there have been developments at the state level that they should be incorporate.
The professional discipline committee’s timetable for the project is still a bit open-ended, Lynk says. "I would love it if we could bring our recommendations before the House of Delegates sometime in 2014," he says, "but we don’t know the depth and extent of comments we’ll receive. We are not entering this review with any assumptions about what rules need revision."
The committee’s plans to review the disciplinary enforcement rules have been getting support from other groups and individuals in the field, including the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers, but often with the qualification that the committee might not expect that its effort will lead to the same kind of uniformity that has been achieved with the Model Rules of Professional Conduct.
"I heartily agree that the time is right for a substantial review of the Model Rules, if not a little overdue," says Douglas J. Ende, who is chief disciplinary counsel for the Washington State Bar Association in Seattle. "But there is a need to be sensitive to the reality of local variation and to recognize that there’s more than one way to skin this cat."
Lynk says the committee will rely heavily on input from individuals and groups working in the ethics and discipline field. The committee recognizes that, while a significant amount of uniformity has been achieved in the substantive ethics standards adopted by the states based on the ABA’s Model Rules, localized rules are more essential to the lawyer discipline process, he adds.
The reasons for that difference are a combination of function and history.
In terms of function, the Model Rules of Professional Conduct reflect a fairly clear consensus on what constitutes ethical behavior by lawyers. But developing a system for enforcing those substantive ethics rules requires each state supreme court, which directs the process, to make decisions based on factors such as budgets, staffing and other local considerations that differ from one jurisdiction to another.
The other reality is that, while the ABA has been at the forefront of developing professional conduct rules since it adopted the Canons of Professional Ethics in 1908, most states already had implemented their own lawyer discipline systems by the time the ABA entered the field. In 1967, the ABA created the Special Committee on Evaluation of Disciplinary Enforcement, known as the Clark committee for its chair, retired U.S. Supreme Court Justice Tom C. Clark. In 1970, the Clark committee submitted a report to the House of Delegates warning that the disciplinary process was operating so ineffectively in many states that the legal profession’s self-regulation was at risk. The House adopted the report, which prompted many states to incorporate many of its recommendations, including adding public members to disciplinary panels.
In 1979, the House adopted the Standards for Lawyer Discipline and Disability Proceedings. Over the next decade, the professional discipline committee transformed the standards into a court rule format, which the House adopted in 1989 as the Model Rules for Lawyer Disciplinary Enforcement. That same year, the ABA created the Commission on Evaluation of Disciplinary Enforcement, known as the McKay commission for its first chair, Robert B. McKay, a former dean at New York University School of Law, who died in 1990. The commission was charged with conducting a nationwide evaluation of the state of lawyer disciplinary enforcement in the United States and recommending a model for responsible regulation into the 21st century. In 1992, the House of Delegates adopted all but four of the commission’s 22 recommendations, and in 1993, the discipline committee incorporated those recommendations into the Model Rules.
The ABA’s contributions have been important to the continuing development of effective disciplinary enforcement systems at the state level, Lynk says. "We needed to develop a system that is meaningful, transparent and accessible under the direction of the courts," he says.
While the professional discipline committee still is in the startup phase of its review of the disciplinary enforcement rules, some issues already have begun to surface. Some of the issues being addressed by the Ethics 20/20 Commission are likely to also appear on the committee’s radar. Lynk says the committee is likely, for instance, to deal with the question of how disciplinary procedures should apply to lawyers from one jurisdiction who are allowed to practice at least temporarily in another jurisdiction—or to have a virtual presence in that second jurisdiction. Lynk notes that the ABA Task Force on International Trade in Legal Services is drafting a protocol on how national jurisdictions can communicate with each other about the disciplinary status of lawyers in foreign jurisdictions.
Ende says other key issues the professional discipline committee should address include the growing use of private disciplinary proceedings for lawyers, and the investigation and adjudication of cases involving lawyers who claim to lack the necessary mental capacity to respond.
Other topics already suggested to the committee include confidentiality and privacy issues in a digital environment, the role of nonlawyer members on disciplinary panels, and discovery procedures.
The professional discipline committee is undertaking its review of the Model Rules for Lawyer Disciplinary Enforcement at a time when it’s already plenty busy with other projects. The committee is working with the Standing Committee on Ethics and Professional Responsibility to develop proposals to revise the Model Rules of Professional Conduct and the ABA Model Code of Judicial Conduct to provide further guidance to the states on judicial disqualification and disclosure of contributions by litigants and lawyers to judicial election campaigns. Lynk says the committees, which also are consulting with the Judicial Division, hope to submit their recommendations for consideration by the House in February.
The committee’s ongoing work includes consulting with various states that invite the committee to assess their lawyer discipline systems, coordinating the National Data Bank on Lawyer Discipline, and conducting training programs for members of ABA sections and divisions on how to avoid discipline problems.
It’s a full plate, but Lynk is undaunted. "With only nine members," he says, "I think we have one of the hardest-working committees in the ABA." Read online
Update: NOTICE OF PUBLIC HEARING
On Friday, May 31, 2013, the ABA Standing Committee on Professional Discipline will hold a public hearing from 12:00 p.m. to 1:00 p.m. at the Hilton Palacio del Rio, 200 Alamo Street, San Antonio, TX in the La Condesa Room, Mezzanine Level. The purpose of the hearing is to assist the Discipline Committee in its review of the Model Rules for Lawyer Disciplinary Enforcement (MRLDE).
Please review the Notice of Public Hearing regarding the scheduling of testimony, submission of written materials, and subjects to be addressed during the hearing.
"Goose-stepping Brigades" - Justice Douglas, Lathrop
Justice William O. Douglas, Wikipedia
William Orville Douglas (October 16, 1898 – January 19, 1980) was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court. In 1975, a Time article called Douglas "the most doctrinaire and committed civil libertarian ever to sit on the court." Read more
Two years prior to the issuance of the ABA McKay Report, the United States Supreme Court unanimously held in Keller v. State Bar of California, 496 US 1 (1990), adopting in effect the prescient minority Justices' dissents in Lathrop v. Donohue, 367 U.S. 820 (1961), that integrated state bars must not venture into political and ideological waters but stick with the narrow, legitimate functions of integrated state bars. To do otherwise these bars would become, as Justice Douglas pointed out in Lathrop, "goose-stepping brigades" that serve neither the public nor the profession. Read more in the RICO complaint below.
The following text is from a federal lawsuit, Lanson v. The Florida Bar, case no. 9:08-cv-80422-WJZ, United States District Court, Southern District of Florida. The lawsuit was filed April 21, 2008 by attorney Mary Alice Gwynn, who is also a plaintiff in the action.
The lawsuit was not served. The complaint is below in PDF format. Gwynn filed a notice of voluntary dismissal without prejudice July 28, 2008. A copy of the docket and dismissal are below in PDF.
U.S. District Court, Southern District of Florida
Lanson v. TFB, 08-80422-Civ-ZlochSnow, A[...]
Adobe Acrobat document [1.2 MB]
With notice of voluntary dismissal
PACER docket, Lanson v TFB, w notice dis[...]
Adobe Acrobat document [75.8 KB]
Keller v. State Bar of California, 496 US 1 (1990) link to Justia
Keller v. State Bar of California, 496 US 1 (1990) Wikipedia
Lathrop v. Donohue, 367 U.S. 820 (1961) link to Findlaw
ABA Commission on Evaluation of Disciplinary Enforcement, the "McKay Commission" 1989-1992, link to the ABA
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 9:08-cv-80422-WJZ
MERYL LANSON, individually,
MARY ALICE GWYNN, individually,
And MARY ALICE GWYNN, P.A.,
A professional association,
THE FLORIDA BAR, JOHN HARKNESS,
JOHN BERRY, KEN MARVIN,
RAMON ABADIN, JULIET ROULHAC,
FLORIDA LAWYERS MUTUAL INSURANCE
COMPLAINT FOR CAUSES OF ACTION ARISING UNDER FEDERAL RICO AND ANTI-TRUST LAWS, AND CLASS ACTION
COMES NOW the Plaintiffs, MERYL LANSON, MARY ALICE GWYNN and MARY ALICE GWYNN, P.A., and state as follows:
Plaintiff, Meryl Lanson (Lanson) is a citizen of the United States, a resident of Palm Beach County, Florida, and more than eighteen years of age. She has filed meritorious Bar complaints with The Florida Bar against lawyers guilty of multiple breaches of The Florida Bar's Rules regarding ethics, which complaints The Bar has improperly refused to process fully.
Plaintiff, Mary Alice Gwynn (Gwynn) is a citizen of the United States, a resident of Palm Beach County, Florida, more than eighteen years of age, and a Florida lawyer practicing in Palm Beach County, Florida, and a member in continuous good standing with The Bar since she commenced her practice in 1991.
Plaintiff, Mary Alice Gwynn, P.A. is a licensed. professional association doing business in Palm Beach County, Florida since 1993.
Defendant, The Florida Bar, claims to be the state's "official arm" of the Florida Supreme Court, headquartered in Tallahassee, Leon County, Florida, operating through its Board of fifty-two Governors, designated by the Supreme Court as its "disciplinary" agency.
Defendant, John Harkness (Harkness), is a citizen of the United States, a resident of Florida, the long-time Executive Director of The Florida Bar, and as such he is the chief executive officer of The Bar, working in Tallahassee, Leon County, Florida. He also serves on the Board of Directors of Defendant Florida Lawyers Mutual Insurance Company (FLMIC).
Defendant, John Berry (Berry), is a citizen of the United States, a resident of Florida, the Legal Division Director of The Florida Bar who reports to Harkness, and working in Tallahassee, Leon County, Florida. He also helped author the American Bar Association's McKay Commission Report regarding state disciplinary processes, whose key recommendations The Bar, now under Berry's guidance, is violating.
Defendant, Ken Marvin (Marvin), is a citizen of the United States, a resident of Florida, Director of Lawyer Regulation of The Bar who reports directly to Berry, and supervises all "discipline" of Florida lawyers.
Defendant, Ramon Ahadin (Ahadin), is a citizen of the United States, a resident of Miami-Dade County, Florida, a member lawyer of The Florida Bar, a Bar Governor, and a Director on the Board of defendant FLMIC.
Defendant, Juliet Roulhac (Roulhac), is a citizen of the United States, a resident of Miami-Dade County, Florida, a lawyer member of The Florida Bar, a Bar Governor, and a Director on the Board of defendant FLMIC.
Defendant, FLMIC, is a mutual insurance company incorporated in the State of Florida, headquartered in Orlando, Florida, and created by The Florida Bar in 1989, purportedly to provide malpractice insurance policies to Florida lawyers.
This court has subject matter jurisdiction pursuant to 18 USC 1961 (RICO), 18 USC 1346 (fraud and honest services), 18 USC 1951 (interference with commerce), Title 15 of the United States Code pertaining to restraint of trade and monopolies (anti-trust law), and Rule 23, Federal Rules of Civil Procedure (class action).
This court affords the proper venue for this action, given the locations of the various parties, noted above, and in light of the fact that these various causes of action have arisen in the federal courts' Southern District of Florida because of acts in this geographic area.
The Florida Supreme Court has delegated to The Florida Bar the function of "disciplining" its members in this integrated state bar system. The Supreme Court and The Bar have a fiduciary duty to the public as well as to members of The Bar to exercise that disciplining function through "honest services," afforded all involved in this disciplinary process--both the members of the public allegedly harmed by the unethical practice of law and lawyers who may be targeted for discipline--due process of law, equal protection, and all other constitutionally-guaranteed rights. The Florida Bar unfortunately is being operated, and demonstrably so, in a fashion as to protect itself rather than the public and honest lawyers. It is presently violating federal laws in pursuit of illicit ends, just as the United States Supreme Court predicted would eventually become the case with integrated state bars such as Florida's.
When Miami lawyer Miles McGrane, was President of the Bar in 2003, The Bar commissioned a poll/survey to assess what Bar members thought of the job The Bar was doing with its discipline. A significant number of members surveyed opined that discipline was not being meted out even-handedly based upon what respondent or potential respondent had done, but rather based upon who the respondents were and how well they were connected within The Bar's leadership hierarchy. The Bar was perceived by its own members to be looking the other way if a lawyer enjoyed advantageous relationships with those making or influencing disciplinary decisions.
The following comments from lawyers are related because they indicate not only the concern about a lack of fair treatment and a lack of equal protection in The Bar's disciplinary process, but also the fact that The Bar was, and has been, fully aware of the problem. This from the Palm Beach Post on March 5, 2004:
Broward County Assistant State Attorney Craig Dyer caned the grievance process "irrational," "knee-jerk" and "heavy-handed"
Gabe Kaimowitz, a Gainesville lawyer and longtime Bar critic, wrote that the association isn’t capable of investigating itself. "If it wants the truth, I'm afraid the organization can't handle it," Kaimowitz wrote. "My own personal hypothesis is that the system favors the 'white, Christian good-old-boys.' "
Roshani Gunewardene of Altamonte Springs wrote that, if anything, the Bar may be too zealous in pursuing obvious vendettas from losing or opposing parties in cases. "The grievance system should not be led to harass and humiliate any member of the Bar," Gunewardene's e-mail said.
In 2000, state Rep. Fred Brummer, R-Apopka, proposed a constitutional amendment to take regulation of lawyers away from the Bar and the Florida Supreme Court. The proposal fizzled, but Brummer feels it got the Bar's attention.
"It's not just the fox guarding the hen house, it’s the fox deciding when the hens can come and go, Brummer said. I think it’s important that the appearance of cronyism or the good-old-boy network present in the system is removed."
Brummer's favorite example is the ease of a former legislative colleague, Steven Effman. The former Broward County lawmaker and mayor of Sunrise was suspended for 91 days last April after he was accused of having sex with three divorce clients, including one woman who alleged she was billed for their intimate time together.
Brummer said Effman got off easy because he had a close relationship with the Bar and because of his position in the legislature.
Bar President McGrane and The Bar created a Special Commission on Lawyer Regulation ostensibly to suggest improvements to The Bar's disciplinary system. A Jacksonville lawyer and Bar Governor, Hank Coxe, was the chair of this Special Commission, and one of the problems to be addressed was disparate discipline based upon who Bar respondents were rather than what they had allegedly done.
The Commission issued its report in 2006 as Hank Coxe became President of The Bar, and it failed to address this disparate discipline problem.
More than a decade earlier, in February 1992, the American Bar Association's McKay Commission issued a report entitled Lawyer Regulation for A New Century: Report of the Commission on Evaluation of Disciplinary Enforcement. One of the nine members of the McKay Commission that issued this Report to the ABA was John Berry, a defendant herein, who was at the time overseeing discipline for The Florida Bar.
The McKay Report addresses the chronic shortcomings of disciplinary mechanisms and methods of integrated state bars, and it made twenty-one recommendations for improvements in state bar disciplinary systems. Four of the twenty-one recommendations by the ABA McKay Commission unequivocally state that any involvement of any kind by a Bar and by its officials and Governors in the disciplinary process vitiates the entire process and renders it suspect. Discipline, according to the ABA McKay Commission, must be the sole domain of the judiciary and delegated in no fashion whatsoever to a Bar.
Again, Defendant, John Berry, then of the Florida Bar and now of the Florida Bar, along with eight other individuals, authored the aforementioned McKay Commission Report. John Berry now oversees Defendant, Ken Marvin, who is the Director of Lawyer Regulations and is ultimately in charge of overseeing all disciplinary matters. For example, sitting on every single grievance committee is a Bar Governor acting as a "designated reviewer." This is the most important position in the entire grievance process. This Bar Governor has a direct line of communication to the entire Board of Governors and to Bar officials such as Harkness, Berry, and Marvin. This flies directly in the face of the core recommendation of the ABA McKay Commission that there must be a "Chinese wall" between The Bar's operatives and discipline. It must be solely the domain of the judiciary.
Another of the twenty-one formal recommendations (Recommendation #3) of the ABA's McKay Report is that "lawyer discipline" must protect the public and not lawyers collectively or individually, as is often, correctly, perceived to be the case.
The Florida Bar, despite the ABA's McKay Report, since its issuance in 1992, has continued to violate these core recommendations, so much so that The Florida Bar is now arguably the most prominent of all state bars in' its flouting of the ABA's McKay Report.
Two years prior to the issuance of the ABA McKay Report, the United States Supreme Court unanimously held in Keller v. State Bar of California, 496 US 1 (1990), adopting in effect the prescient minority Justices' dissents in Lathrop v. Donohue, 367 U.S. 820 (1961), that integrated state bars must not venture into political and ideological waters but stick with the narrow, legitimate functions of integrated state bars. To do otherwise these bars would become, as Justice Douglas pointed out in Lathrop, "goose-stepping brigades" that serve neither the public nor the profession.
The Supreme Court has warned all integrated state bars, then, that those that do not stick with their narrow functions will be treated as if they were "guilds," and they would suffer the same historical fate of guilds-abolition. Guilds have gone the way of the dodo because they were correctly identified as restricting trade, harming the public, protecting professional wrongdoers from accountability, and denying certain professionals the right to earn a living unimpeded by interference from the guild.
In 1989, The Bar created the Florida Lawyers Mutual Insurance Company, herein called FLMIC, to provide, purportedly, malpractice insurance to Florida lawyers. Indeed, if one goes to the current Internet web site for FLMIC, one finds a remarkable "Welcome" from defendant Harkness explaining the long-standing relationship between The Bar and FLMIC. Harkness does this despite the fact that the FLMIC is supposed to be a private corporation with no ties to The Bar. The FLMIC web site found at http://www.flmic.com makes it clear to anyone viewing it that there is a cozy, ongoing relationship between it and The Bar. The site even links to certain Florida Bar sites.
Indeed, at a recent mediation presided over by former Miami-Dade Chief Judge Gerald Wetherington, a claims adjustor for FLMlC was greeted by the Judge with the words, "I know you. You're from The Bar."
Serving on FLMIC's Board of Directors is not only Harkness, but also Defendant Abadin and Defendant Roulhac, both Bar Governors. Serving also on the FLMIC Board is Alan Bookman, Bar President immediately before the tenure of the aforementioned Hank Coxe.
Harkness, Abadin, and Roulhac have a fiduciary duty to The Bar, to its members, and to the public in the discharge of their "Bar" duties, particularly regarding "discipline." Yet, they also have a fiduciary duty to FLMIC and its mutual policyholders. These two sets of fiduciary duties are in clear conflict with one another, not only conceptually but in fact.
Florida Bar members who are FLMIC policy holders are shielded from discipline by The Bar. By buying FLMIC policies they purchase, in effect, discipline protection, avoiding it altogether or securing more lenient discipline.
One Bar respondent stated, "I was told by The Bar that if I purchased FLMIC insurance my 'disciplinary problems would go away.'"
Plaintiffs are aware of specific instances in which certain Florida lawyers, clearly guilty of egregious ethics breaches in violation of Florida Bar Rules, have been protected by The Bar from discipline because of their holding FLMIC policies. The result of this protection of FLMIC policyholders is to deny members of the public, who have formally complained to The Bar, a disciplinary remedy.
Further, lawyers who have no malpractice insurance or who have malpractice insurance coverage with other carriers, do not enjoy this "discipline protection" from 'The Bar, and they are more likely to be disciplined and disciplined more severely. Thus, the Defendants are ensnared in a commercial relationship with an insurer that is bearing rotten fruit in a regulatory setting. The guilty are being exonerated and the innocent are being unfairly targeted.
The twentieth century saw the rise of a deadly ideology known as "fascism," one aspect of which was the melding of the state with commercial interests, which is the facet of fascism known as "corporatism" See http://en.wikipedia.org/wiki/Corporatism. What the Defendants have done is fall into this fascist trap by blurring the lines between government and commerce in such a way as to increase the power of both, and at the expense of individual liberties.
The illicit reason for the wedding of this governmental state function-the disciplining of lawyers-to what is supposed to be a solely private sector commercial activity-the sale and purchase of malpractice insurance-is that blocking the discipline of a lawyer, who is an FLMIC policyholder, serves to help insulate him/her from a malpractice action. A member of the public, told by The Bar that it will not discipline a lawyer guilty of ethics breaches, serves as a powerful disincentive to that complaining citizen to take the next step and bring a malpractice action. If The Bar itself will not proceed, with all of its resources, why should a single citizen do so, the victim reasons. Further, FLMIC and its Directors, including the three defendant Bar Governors Harkness, Abadin, and Roulhac, use their influence to prevent adverse ethics findings by The Bar, and thus such would-be findings be used as collateral proof of malpractice against that lawyer in any civil litigation.
Thus fiduciaries, who have a duty to pursue discipline fairly and equitably, with no respect whatsoever as to who the respondent is, have a powerful commercial disincentive to do so. What they do have is a fiduciary duty to protect FLMIC and its policyholders. The aphorism that a "man cannot serve two masters" undergirds the very concept, in our system of law, as to what a fiduciary is. All of the Defendants have breached this duty to serve only one master by virtue of their improper relationship between FLMIC and The Bar. No lawyer or any other person who understands "conflict of interest" could possibly think that Bar operatives should be sitting on the Board of FLMIC.
Often conspiracies are proven and then unravel, because documents called "smoking guns" are discovered and disgorged from hidden sources, that has now become evident in this scandal pertaining to The Bar's and FLMIC's racket. Plaintiffs have a smoking gun that has appeared in the light of day by the hand of the Defendants themselves. Attached hereto as Exhibit A, and made a part hereof, is a large color advertisement that has been regularly and recently gracing the pages of The Bar's own in-house publication, The Florida Bar News. It is an ad for Defendant, FLMIC. Its message proves the Plaintiffs' case is noteworthy and harmful to the Plaintiffs and the public at large, for the following reasons patent in the ad itself, to-wit:
The advertisement shares with all Florida Bar members its slogan, at the lower left hand corner of the ad: "We've built our reputation on vigorously defending yours." The related bullet point down the right-hand side reads "Aggressive defense of your reputation." FLMIC is thus using The Florida Bar's publication to send the message that it can be counted upon to "vigorously" mount an "aggressive defense" of any claim brought by any client who asserts that he has been harmed by the malpractice of a lawyer. By contrast, other state bars are increasingly moving toward mandatory lawyer malpractice insurance as a measure to protect the public by compensating them by these means. Oregon has mandatory lawyer malpractice insurance - not to protect Oregon lawyers and their "reputations", but rather to compensate victims of it.
This message and this mindset - FLMIC will do what is necessary to defeat a client's claim - is bad enough. But here is the proof of the insurance and discipline racket in which all the Defendants are involved. The FLMIC ad proclaims in its last bullet point as to why Florida Bar members should purchase their liability coverage product rather than that provided by dozens of other insurers:
• Defense for disciplinary proceedings
FLMIC is thus making one of the services it provides under the policy full defense for any lawyer charged with a disciplinary breach by a client. This is significant in at least two regards: 1) it is an acknowledgment of the linkage between malpractice and discipline and the keen interest of FLMIC in defeating any grievance brought because of its impact upon any finding of liability for malpractice, and 2) it is a promise that. FLMIC, which the first bullet point notes was "Created by The Florida Bar for your benefit", will do what it can to defeat any grievance brought by the public to The Bar’s attention! Why in the world should a company created by The Bar be involved in thwarting what is supposed to be The Bar's regulatory function intended to protect the public?
This remarkable ad, then, proves the Plaintiffs' point: FLMIC has been created by The Florida Bar to defeat grievances brought by the public. It could not be clearer. It says precisely this on the pages of The Florida Bar News. Any lawyer not understanding this message--that to buy this Bar-created insurance product buys one "discipline protection" has missed the unmissable.
Plaintiff, Gwynn, has been wrongly singled out for "discipline" by The Bar, with the collaborative efforts of all of the Defendants, in large part because she is not an FLMIC policyholder. Subsequently, Gwynn and Gwynn, P.A. have suffered damages. Plaintiff, Lanson, a Bar complainant, has been denied "honest services" in the processing of her formal Bar complaints by a conspiracy of all of the Defendants in that certain Florida lawyers who acted in their professional capacities unethically were protected from discipline by The Bar by virtue of the fact that they were FLMIC insureds.
More specifically, Plaintiff, Meryl Lanson, beginning in 1998 filed bar complaints against Florida attorneys for a litany of egregious ethical violations, including but not limited to, perjury and fraud. The Bar thwarted the disciplinary process by labeling the grievance a "fee dispute." It was not.
The complained of ethics violations, according to The Bar's own Rules, were very serious and, according to Bar guidelines, were deserving of severe punishment. Nevertheless, the complaint never made it past a perfunctory intake process.
Here is a listing of the ethics breaches by Lanson's attorneys, which The Bar refused even to investigate:
Rule 4-1.1 Competence
Rule 4-1.3 Diligence
Rule 4-1.4 Communication
Rule 4-1.5 Fees for Legal Services
Rule 4-1.7 Conflict of Interest; General Rule
Duty to Avoid Limitation on Independent Professional Judgment.
Explanation to Clients
Loyalty to a Client - Loyalty to a Client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client.
Lawyer's Interests - The lawyers own interests should not be permitted to have adverse effect on representation of a client
Conflicts in Litigation - Subdivision (a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co-Plaintiffs or co-Defendants, is governed by subdivisions (b) and (c). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question.
Rule 4-1.8 Conflict of Interest: Prohibited and other Transactions. Settlement of Claims for Multiple
Rule 4-1.16 Declining or Terminating Representation.
In 1999, when the plaintiff and her husband, Norman Lanson, filed their malpractice action against these attorneys they learned that the attorneys were insured by FLMIC and that one of the attorneys was a defense attorney employed by FLMIC. It became obvious as to why The Bar's judgment and its failure to discharge its fiduciary duty as to discipline, was compromised by its commercial relationship with FLMIC. There is a clear disincentive for The Bar to punish attorneys insured by the Bar's created carrier, as such punishment could be additional support and collateral proof for a claim arising out of legal malpractice. The paper trail of communications between Lanson, The Florida Bar, its Board of Governors, The Supreme Court of Florida, and Florida Lawyers Mutual Insurance Company outlines the devastating affect this improper relationship among The Bar, FLMIC, and the other Defendants has on the unsuspecting public. Lanson has discovered evidence that theirs was not an isolated incident, but in fact, there is a class of individuals similarly harmed.
Plaintiff, Mary Alice Gwynn, is another victim of the illicit relationship among the Defendants, although the harm emanating therefrom has taken a different, albeit related form. In 2004, Bar complaints were filed against Gwynn by a Florida attorney who enjoyed a relationship with The Bar's outside investigator assigned to the case. This attorney had threatened Gwynn with a Bar complaint, and then filed it. The lawyer complainant's threat to file a Bar complaint was, of course, an act in violation of Florida Bar Rule 4-3.4(h), as he made that threat solely to gain advantage in a civil proceeding.
The Bar complaint resulted in a finding of "probable cause" against Gwynn because of a) the relationship between the complainant and The Bar prosecutor, b) Gwynn's status of not being an FLMIC policyholder, and c) The Bar's becoming aware of her relationship with the plaintiff herein, Lanson.
More recently, the same lawyer complainant has written Gwynn and told her that if she seeks certain relief in litigation in which he and Gwynn are involved, he will file a new Bar complaint. Such a threat, of course, is a criminal act - extortion - by this Bar complainant. Despite this use of a criminal threat, The Bar has decided to proceed nevertheless against the victim of it, Ms. Gwynn.
Plaintiff, Mary Alice Gwynn, P.A. has suffered financial losses as a result of the Defendants' actions against Gwynn.
COUNT I: RACKETEERING
Plaintiffs adopt and incorporate the foregoing facts into this count.
The multiple "predicate acts" of racketeering engaged in by Defendants include, but are not necessarily limited to: bribery, extortion, mail fraud, obstruction of justice, interference with commerce, fraud, including but not limited to violations of 18 USC 1951, as well as deprivation by fraud of honest services, as set forth in 18 USC 1346.
More specifically, both The Bar and FLMIC are engaged, one with the other and in conspiracy with the individuals who are Defendants herein, in a pattern of racketeering activity whereby lawyers are prosecuted by The Bar for "disciplinary" reasons if they are not FLMIC insured. The offering and purchase of an FLMIC malpractice insurance policy constitutes extortion.
FLMIC directors' fees are paid by FLMIC to Defendants Harkness, Rabadin, and Roulhac, who have control, along with other Bar operatives, over The Bar's disciplinary machinery, in order to assure that discipline is not meted out by The Bar against Florida lawyers who are FLMIC insured.
Further, all of the Defendants have conspired to interfere with commerce, as a distinct commercial advantage by FLMIC over other legal malpractice carriers, by this racketeering activity that benefits FLMIC and its insured, at the expense of the public and of unfairly targeted Florida lawyers.
The use by all Defendants of the United States Postal Service, as well as by other means of communication, in furtherance of this pattern of racketeering activity constitutes mail fraud. More generally, the Defendants have engaged in fraud by presenting themselves as if they were fiduciaries providing services and products; when in fact, they have been collaborating and conspiring to enrich themselves and their racketeering enterprises. See 18 USC 1951.
Finally, but perhaps not exhaustively, the Defendants have deprived both the public and non-FLMIC insured "honest services," in violation of 18 USC 1346 by pretending to exercise legitimate regulatory functions, under color of state law, when in fact they have been actively harming the public by protecting wrongdoers and punishing innocent lawyers, all for commercial gain.
WHEREFORE, Plaintiffs seek all appropriate relief available to them against all Defendants, such relief being set forth in 18 USC 1961, et sequitur, for all of the aforementioned racketeering activities set forth.
COUNT II. ANTI-TRUST
Plaintiffs adopt and incorporate the foregoing facts into this count.
Section 15 of Chapter One of Title 15 of the United States Code affords individuals harmed by violations of federal anti-trust laws certain remedies which the Plaintiffs herein seek against the Defendants herein.
The Defendants have all conspired to restrict trade or commerce in pursuit of a monopoly in violation of Section 1, Chapter One, Title 15, United States Code.
More specifically, the Defendants, in establishing FLMIC and in operating it in such a fashion as to improperly wed a governmental function under color of state law, to their commercial interests, have sought and secured a competitive advantage over other legal malpractice insurers in the state by virtue of providing "discipline protection" to their insured, which these other insurers cannot and would not provide.
Further, the Defendants, have restrained trade with and through FLMIC to deny lawyers their right to earn a living as lawyers in the legal profession, on an equal footing with other lawyers in the state.
The effect of this conspiracy, in this regard, is to harm not only other insurers and certain lawyers, but also to deprive the legal services-consuming public of the representation of such lawyers whom they would otherwise hire.
All of the Plaintiffs, then, by virtue of being either lawyers or clients have been harmed by the Defendants' restraint of trade and monopolistic practices involving FLMIC.
WHEREFORE, all Plaintiffs seek, to the extent allowable under Section 15, Chapter One, Title 15 all damages and all other relief allowable thereunder.
CERTIFICATION OF CLASS
Under Rule 23, Federal Rules of Civil Procedure, the three named Plaintiffs herein are typical representatives of a class of individuals yet unknown, who are either members of the public, such as Lanson, who have been harmed by lawyers by means of breaches of The Florida Bar's Rules of Professional Responsibility and whom the Defendants have conspired to protect, at the expense of the public, or who are, like Gwynn, lawyers who have done no wrong and yet who have been targeted improperly for discipline because of the insinuation of commercial concerns and other improper influences upon the disciplinary process.
Other members of this class, then, would include non-lawyers as well as lawyers who have been victimized by the Defendants who are masquerading as public servants, when in fact they have been tyrants acting under color and under cover of state law.
WHEREFORE, the Plaintiffs seek certification by the court that this action should be and is a class action.
DEMAND FOR TRIAL BY JURY
Plaintiffs demand a trial by jury of all issues so triable.
Hold on Tight to What We Have
Florida Bar Journal
March, 2011 Volume 85, No. 3
by Mayanne Downs
Brace yourself. We’re in for another wild ride fighting for the judiciary as a co-equal third branch of government — and not just another state agency.
The Florida Legislature is back in session, and lawmakers are constrained by a budget shortfall of at least $3.6 billion and a new governor insistent on cutting $2 billion in taxes and $5 billion in spending.
We’ve got to hold on tight to what we already have for the judicial branch, while seeking a more stable long-term funding source not so dependent on foreclosure filing fees.
Here’s what we have for fiscal year 2010-11: $370 million in the State Courts Revenue Trust Fund, fueled largely by revenues from foreclosure filings
that are, at least temporarily, declining — which is about 84 percent of the total $439.6 million state courts budget. But the governor’s budget removes the clerks from the state budget, returning to
the way things were before the trust fund: funding clerks from filing fees and fines at the local level.
And the governor wants to cut nearly $39.6 million from the courts: 574 lost support staff positions for judges.
After two years of major budget cuts, in 2009, at the request of the court and legal profession, the legislature provided a dedicated source of state revenue to fund operations of the judicial branch. This trust fund is essential because the court system’s budget is almost entirely devoted to compensation for judges and court staff, and to expenses directly related to resolving cases. But, as Chief Justice Charles Canady told the Senate Judiciary Committee, once the foreclosure mess is mopped up, “it would be our goal in the judiciary to find a more stable, long-term funding source for us.”
While $439.6 million is real money, let’s remind lawmakers searching for budget cuts that the court system budget is only seven-tenths of 1 percent of Florida’s overall state budget. I’ve been traveling around our state talking about this subject, and very few of us, even lawyers, know how miniscule the courts’ budget is, particularly when you consider what’s at stake: Citizens’ access to their courts — from the poorest pro se litigant to the biggest corporation. A fair and impartial judiciary, the very foundation of our system of governance. Timely resolution of disputes that keeps business humming.
What’s new to worry about this session is proposed legislation — S.B. 290 by Sen. Mike Fasano, R-New Port Richey — that would reduce pensions for elected officials, including Supreme Court justices and all judges on the trial and appellate benches. This is particularly worrisome because the wages of Florida’s trial judges are nearly $16,000 lower than a 50-state model in statistical testing and analysis conducted by The Florida Chamber Foundation for The Florida Bar.
As part of the study, The Washington Economics Group surveyed current judges and attorneys to explore issues that impact the retention and recruitment of judges in Florida. A commitment to public service and the honor of the office were the top reasons given for wanting to be a judge. Good, experienced lawyers who seek such public service could make more money in private practice. But an additional incentive frequently reported is receiving the attractive retirement and benefits package now offered by the state.
Chief Justice Canady told the senators that it’s possible to fill the judgeships with a reduced compensation package. But, he so rightly said, “It’s not a question of filling seats that are on the bench. It’s a question of having highly qualified people on the bench. When I think about the power that an individual circuit judge has over the lives of the people who come before that circuit judge, it is something that absolutely requires a person who is highly qualified.”
Highly qualified judges and a court system funded adequately to carry out its crucial mission. That’s what we lawyers hold dear, and no matter how tough the fight over dollars becomes in the legislature, we simply can’t let go.
March 19, 2011
2011, 03-19-11, email, Fla Bar President[...]
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The Florida Bar fined lawyer Sean Conway $1,200
Res ipsa loquitur ("The thing itself speaks")
September 30, 2007
Florida State bar authorities have fined trial lawyer Sean Conway $1,200 for criticizing Ft. Lauderdale Judge Cheryl Aleman on a blog, including calling Conway an "evil, unfair witch." We previously discussed this case, here. The ruling is a major blow to free speech and another case of courts or the bar overreaching in punishing lawyers and parties for their criticism of judges. What is particularly interesting is that Aleman has been charged with misconduct by the Judicial Qualifications Commission.
Conway was apparently fed up Aleman’s mistreatment of lawyers and unreasonable orders. This includes her alleged habit of refusing defendants reasonable time to
prepare for trial and then insisting, if they wanted to prepare, that they waive their constitutional right to a speedy trial: "She was giving people one week to prepare for trial and as soon as the
blog exposed it through powerful words she stopped it. And that’s why I stand by what I did." What he did was in Oct. 2006, on Jaablog, he called her an "evil, unfair witch"
and described her "ugly, condescending attitude." The contents of the posting are linked below, but the posting includes five specific remarks raised by the Bar.
Note: Conway's blog post is gone, but found here in PDF.
Florida Bar Attacks Freedom of Speech
New Times blogs
By Bob Norman
Dec. 13 2007
I don't use the word "outrage" very often, but this is an outrage. Lawyer Sean Conway exposed a horrendous practice by Judge Cheryl Aleman -- a piss-poor judge by any standard -- and for performing that public service the Florida Bar might take his law license away.
The Bar's repulsive message: When it comes to judges in America, freedom of speech goes out the window. Call a judge an "evil witch" and you lose your livelihood? Not in my country. Read more
Note: Conway's blog post is gone, but found here in PDF.
Res ipsa loquitur ("The thing itself speaks")
December 14, 2007
There is a bizarre fight brewing in Florida between a lawyer and judge over their respective alleged misconduct. Lawyer Sean Conway faces discipline for attacking Judge Cheryl Alemán is facing possible discipline before the Judicial Qualifications Commission. At issue are not just standards of professional and judicial conduct, but the first amendment.
Conway’s problems began with an entry on his blog on Halloween 2006 where he described Alemán’s "ugly, condescending attitude" and questioned her mental stability. He described how she made lawyers choose between unreasonable trial dates or waiving their clients’ rights to a speedy trial. He also described her an "evil, unfair witch." He also added: "She is clearly unfit for her position and knows not what it means to be a neutral arbiter." Read more
Note: Conway's blog post is gone, but found here in PDF.
Case No. SC08-326, May-12-2008
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Case No. SC08-326, Jun-11-2008
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Case No. SC08-326
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Case No. SC08-326, Oct-29-2008
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Disbar the Florida Bar, YouTube
Les Winston says in Florida all other professions except lawyers are governed by the Department of Business & Professional Regulation. Only lawyers regulate themselves through the Florida Bar. This has created a dangerous good old boys club and a lot of rotten apples.
Disbar The Florida Bar, Facebook
DisBAR Florida State BAR YouTube
Rotten Apples Guard The Bar's Orchard
By Les Winston
January 5, 2010
The recent charges of criminal behavior against attorney Scott Rothstein leave no doubt that he is a bad apple in the "orchard" of the Florida Bar. Unfortunately, there are a substantial number of lawyers just like him still practicing law in Florida, under the control of the Florida Bar. Mr. Rothstein's actions bring to question the Florida Bar's inability to protect Floridians from unethical behavior by one of its members. It seems that the hierarchy of the Florida Bar is only protecting its own interests, and the interests of certain members.
Jesse Diner, president of the Florida Bar, recently used the "one rotten apple" approach to protect the Bar's image. What Mr. Diner failed to mention is the ethical violation and conflict of interest that exists between the Florida Bar, a state agency, and Florida Lawyers Mutual Insurance Company, a private, for-profit attorney malpractice insurance company.
The conflict lies with John Harkness acting as the executive director of the Florida Bar as well as a director of FLMIC. The meshing of these two groups is unethical and leaves the door open for corruption. This special, incestuous relationship protects rogue lawyers who purchase legal malpractice insurance from FLMIC. This conflict of interest leaves Floridians unprotected and vulnerable.
As a director of Baron's Stores Inc., I have witnessed how this incestuous relationship has caused Baron's to be embroiled in a legal malpractice lawsuit against three South Florida attorneys for more than a decade. The attorneys are insured by FLMIC and Great American Insurance Co. The law firm of Greenberg Traurig is counsel for the Florida Bar and also represents the insurers. This conflict of interest aids and abets the insurers to violate federal anti-trust laws and violate Florida insurance law.
Recently, the Florida Supreme Court unanimously granted Gov. Charlie Crist's petition to create a statewide grand jury to investigate the corruption of state and local officials as well as judicial misconduct, conspiracy and abuse of power within the Florida legal system. Floridians can only hope that Gov. Crist and Florida Attorney General Bill McCollum will finally begin to restore order.
No wonder the American Tort Reform Association has once again named South Florida the No.1 judicial "hellhole" in the nation.
Scott Rothstein is "one rotten apple" in the bunch, but the Florida Bar will never launch any serious investigation into matters that can cripple the organization because the "rotten apples" are the ones guarding the entire "orchard."
Lesley Winston is director of Baron's Stores Inc. in North Miami.
An End to Fraud On The Court
This Blog is intended to keep the public informed as to our efforts to secure Congressional Hearings for "Fraud on the Court."
Story of disbarred Florida attorney Mark A. Adams
by Mark A. Adams
I believed in our constitution and our heritage of honor, liberty, and justice so strongly that I joined the armed forces when I was seventeen and served for six years. I went to law school because I hoped that I could help people who needed an attorney, and in law school I was taught that when a trial judge makes the wrong decision, the appellate courts should rectify it. Apparently, I am incredibly naive. Read more
Mark A. Adams JD/MBA Speaks at Judicial Reform Conference
at Rice University.
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2005, 06-24-05, Florida Bar Complaint, M[...]
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Florida's Bar Exam: Ensuring Racial Disparity, Not Competence
The Georgetown Journal of Legal Ethics, by Rachel L. Gregory
Date Friday, July 1, 2005
On March 20, 2003, the Supreme Court of Florida adopted changes to the Rules of the Supreme Court regarding admissions to the bar, including a change that raised the passing score from 131 to 136.1 In its published opinion explaining the changes, the Court specifically found that the increase in the passing score would not have a disparate gender, racial, or ethnic impact.2 According to the dissenting opinion, however, the evidence supporting that contention is untrustworthy.3 Indeed, the majority cited only two statistics, neither of which included references to gender impact, and yet the Court firmly denied that any disparate gender or racial impact was possible. Read more
Former attorney Bill Corbin charges the Florida Supreme Court and other public officials with corruption and obstruction of justice.
The following 14 paragraphs address the issue of corruption and dysfunctionality. All of the analysis is from credible sources-- bar publications, the mainstream press, mainstream organizations on the Web, or in the case of my legal affairs, legal case papers.
You will find the bar publications in paragraphs 3, 5, 10 and 14, alone, go far towards establishing grounds for contending that the legal profession is the most corrupt and dysfunctional. When supplemented by the other sources, one is left with no doubt.