When Breaches of Professionalism Become Sanctionable
By Gregory R. Hanthorn – February 5, 2014
Considerable confusion exists inside and outside the legal profession concerning the distinction between “professionalism” and “ethics.” For years, this author has noted that the simplest distinction is that “ethics” is a substantive body of law governing the conduct of lawyers, while “professionalism” is what all non-lawyers call ethics. In short, standards governing “ethics” are enforceable by discipline, and most professionalism standards have been viewed as aspirational. Bar associations have recognized that there is a distinction, for as of February 2014 the ABA's "Mandatory CLE" webpage lists 20 states with continuing legal education requirements focusing upon "professionalism" as distinct from or in addition to "ethics."
Yet, the “discipline/aspirational” distinction is far from airtight. In Florida Bar v. J. A. Norkin, No. SC11-1356 (Fla. Oct. 31, 2013), the Florida Supreme Court imposed a two-year suspension on an attorney for conduct that can be seen largely as a result of a lack of professionalism. The Florida Supreme Court expressly noted:
One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposely offensive toward opposing counsel. This Court has been discussing professionalism and civility for years. We do not tolerate unprofessional and discourteous behavior. We do not take any pleasure in sanctioning [Attorney], but if we are to have an honored and respected profession, we are required to hold ourselves to a higher standard.
Norkin, slip op. at 32–33. See also id. at 24–25 (discussing Florida’s adoption of a Professionalism Code and quoting In re Code for Resolving Professionalism Complaints, 116 So. 3d 288, 280 (Fla. 2013)).
After noting that the attorney’s “unprofessional conduct is an embarrassment to all members of The Florida Bar,” the court dropped a footnote stating, “Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior.” Id. at 33 n.5 (citation omitted).
Professor Roberta K. Flowers at the Stetson University College of Law, cochair of the Professionalism Subcommittee of the Ethics and Professionalism Committee of the ABA Section of Litigation, notes: “It is clear that the Florida Supreme Court was on the lookout for a case in which to send a strong message that professionalism would no longer be merely debated but would now be regulated.” And the message is certainly strong. In Norkin, the conduct at issue had been investigated by a referee, and the referee’s report had been adopted by the Florida Bar. The referee recommended a sanction of a 90-day suspension, followed by an 18-month period of probation. The Florida Bar urged that the sanction should be a one-year suspension coupled with a public reprimand. The Florida Supreme Court doubled the suspension proposed by the bar, to be followed by the 18-month probationary period recommended by the referee.
So what was the unprofessional conduct that the Florida Supreme Court found merited a two-year suspension? For once, no conduct was alleged that involved misapplication of money held in trust accounts. No conduct was alleged that involved inappropriate sexual conduct with clients. No conduct was alleged that involved failing to account for fees. And no crimes were alleged to have been committed by the respondent. Instead, the respondent “engaged in tirades and in antagonistic behavior on several occasions before [two judges]. He also berated [a senior judge] and repeatedly disparaged opposing counsel.” More specifically, the respondent had “falsely accused a senior judge of criminal conduct” by alleging that the senior judge “had a ‘cozy, conspiratorial’ relationship with the opposing party and/or opposing counsel.” The respondent was also found to have repeatedly raised his voice and shouted at the court. The referee who originally heard the charges described the respondent’s argument that “he speaks loudly when he feels he is not being heard” as “patently unbelievable.” The supreme court found that the record, including repeated references to volume, supported the referee’s finding that the shouting constituted “conduct intended to disrupt a tribunal.”
One hopes that no lawyer or aspiring lawyer would mistake the conduct that the court described as “professional.” Yet, shouting and hurling accusations at opposing counsel have usually been examined under the rubric of “professionalism” or even contempt of court; lengthy suspensions have, to date, been fairly rare. The Florida Supreme Court did note that the shouting and other conduct did run afoul of ethical rules concerning disrupting a tribunal (citing Fla. R. 4-3.5(c)), making false statements (Fla. R. 4-8.2(a)), and conduct prejudicial to the administration of justice (Fla. R. 4-8.4(d)). These rules (and the analogous provisions of ABA Model Rules of Professional Conduct at 3.5(d), 8.2(a), and 8.4(d)) have not frequently resulted in multi-month suspensions, let alone terms of suspensions increasing what the state bar had recommended.
This was not the first time that the Florida Supreme Court had penalized unprofessional conduct. In Florida Bar v. Abramson, 3 So. 3d 964, 966, 969 (Fla. 2009), the respondent had disrupted voir dire and, in court, “questioned jurors as to who was at fault, counsel or the judge.” Abramson, cited in Norkin, slip op. at 29. Abramson received a 91-day suspension and was required to demonstrate rehabilitation. Similarly, in Florida Bar v. Tobkin, 944 So. 2d 219, 226 (Fla. 2006), the respondent received a 91-day suspension based on an unprofessional outburst that had been directed toward opposing counsel and staff at a cancer center.
The Florida Supreme Court grounded the authority to impose sanctions on Florida’s Professionalism Code adopted in 2005 as well as Florida Rules 4-8.4(d) (conduct prejudicial to the administration of justice) and 4-3.5(c) (prohibiting conduct “intended to disrupt the tribunal”).
The Florida Bar’s approach in Norkin suggests that professionalism codes can provide a basis for discipline. Past cases from other jurisdictions addressing professionalism issues and providing sanctions have generally focused on ethical breaches. For example, when the Supreme Court of Delaware was confronted with over-the-top deposition behavior in a case before it, the court did not look to a lack of “professionalism” as an independent basis for sanctions; instead, it stated that “conduct such as that involved here goes to the heart of the trial court proceedings themselves. As such, it cries out for relief under the trial court’s rules, including Ch. Ct. R. 37. Under some circumstances, the use of the trial court’s inherent summary contempt powers may be appropriate.” Paramount Commc’ns, Inc. v. QVC Network, Inc., 637 A.2d 34, 55 (Del. 1994). The Paramount court found that it lacked authority to impose sanctions as the out-of-state attorney defending the deposition had not been admitted pro hac vice. See also Addendum, 637 A.2d 52 (“Although this Addendum has no bearing on the outcome of the case, it relates to a serious issue of professionalism involving deposition practice in proceedings in Delaware trial courts.”).
While the Norkin opinion itself can be parsed to note aggravating factors, including the respondent’s prior discipline history in Florida, focusing solely on the specifics of the lawyer’s record may miss the broader point. Stephen LaBriola, chair of the Advertising Subcommittee of the Ethics and Professionalism Committee of the ABA Section of Litigation notes:
While, taken as a whole, it might be easy to distinguish the Norkin decision as unique, attorneys who have practiced for a number of years undoubtedly will have experienced firsthand limited doses of the behavior the Florida Supreme Court finds to be intolerable. In so ruling, the Court well serves those of our time-honored profession.
The Florida Supreme Court has clearly stated that its Professionalism Code is to have teeth. Florida is far from alone in having a "professionalism" code. As of August 2012, the ABA listed 43 states, plus the District of Columbia, that have adopted some form of professionalism code, with many states having multiple codes for multiple bar associations.
Can other jurisdictions be far behind?
Keywords: litigation, ethics, professionalism, professional conduct
Gregory R. Hanthorn is of counsel at Jones Day in Atlanta, Georgia.