Thursday, January 8, 2009

By Writ Or Appeal

The Florida Supreme Court suspended a lawyer for 91 days (requiring him to demonstrate rehabilitation) and published an opinion to "articulate our reasoning so that other members of The Florida Bar can avoid [his] misconduct."

The lawyer defended a client charged with felony driving on a revoked license and in an unregistered vehicle. The judge was 16 minutes late for the time set for trial. The jury was already seated when the judge took the bench. The lawyer sought a sidebar conference to entertain motions. The judge denied him permission to approach the bench and told him that motions would be heard after vior dire. The lawyer continued to interrupt the proceedings and was discouteous and disrespectful, and continued to attack the judge in voir dire of the prospective jurors. The client fired the lawyer as a result and the case was continued. The judge sent the matter to the Florida Bar in lieu of a contempt proceeding. The court here rejected a referee's recommendation of a public reprimand with supervised probation:

[his] misconduct was egregious. He was disrespectful and confrontational with the presiding judge in an ongoing courtroom proceeding in the presence of the pool of prospective jurors in a criminal case. Regardless of any perceived provocation by the judge, [he] responded inappropriately by engaging in a protracted challenge to the court's authority. His ethical alternative, if he believed the trial court had erred, was by writ or appeal.

The lawyer had been "publicly reprimanded twice before for serious misconduct." A dissent would impose the discipline recommended by the referee on the view that lawyer and judge had "both fueled the fire." (Mike Frisch)

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Firstly, I think that credit should go to the trial judge for initially beginning a contempt action and then subsequently recognising that that was not the best way to handle the matter. Presumably, he recognised that the situation then lacked the urgency required to undertake a summary contempt action and that he had become embroiled in the matter bringing into doubt his objectivity.

The majority claims that the actions of the trial judge were not relevant. But the dissent makes clear that they were and that the judge had “fuelled the fire”. Is this an example of the judiciary selectively recalling the facts so as to protect one of its own? That is the appearance given. If would have been better if the majority had specifically addressed the dissent’s claim.

Finally, the referee found that the respondent “exhibited remorse”. Nonetheless, this did not stop the court from specifically stating that the respondent must demonstrate that he is suitably remorseful for his conduct. The corrective action is the punishment. Having paid the price, surely the lawyer should be reinstated? The demand for proof of remorse seems to really be a demand that the party kowtow to the court by admitting guilt and accepting that the court was right. Many times, a lawyer will oppose discipline and genuinely believes that he was right and the court was wrong. Does that really mean that the lawyer should never again be allowed to practice law until he accepts that he was wrong and the court was right? Is it not enough simply to accept that the court considered the issue and found against you? Perhaps this might make sense when the position of the lawyer indicates a likelihood for future violations, but if not, then I can only conclude that Orwellian demands such as this are really intended to protect the political power of the court from those who might challenge it.

The footnote raises an interesting question. The lawyer has been elected a judge. So does this mean that a suspended lawyer will now act as a judge? Presumably, a law license is not required to act in that roll. This could create an interesting situation.


Posted by: FixedWing | Jan 8, 2009 11:51:44 AM

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