A Conversation About Professionalism

Episode Notes

Transcript

The Florida Bar Podcast

A Conversation About Professionalism

11/11/2019

 

[Music]

 

Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and legal practice management to help you run your firm, brought to you by The Florida Bar’s Practice Resource Center. You are listening to Legal Talk Network.

 

[Music]

 

Jonathon Israel: Hello and welcome to the Florida Bar Podcast recorded from the Florida Bar headquarters in Tallahassee, Florida. This is Jonathon Israel and I am the host for today’s show.

 

Joining me today I have Michael Tanner, who will be the moderator of today’s episode. Before we get started, I would like to ask Michael to tell us a little bit about himself and today’s topic.

 

Mike Tanner: Well, thank you Jonathon. I am Mike Tanner. I am a member of the Board of Governors of the Florida Bar and our topic today is Lawyer Professionalism in the State of Florida.

 

Jonathon Israel: Great. Thank you. I understand we have a few guests joining our panel today, if you would like to go ahead and introduce them as well.

 

Mike Tanner: We do. Thank you. A very distinguished group of panelists and I am going to apologize to them in advance here. I am not going to go through all of their credentials and achievements, that would take much too much time, but I am going to take these in alphabetical order as well.

 

First we have with us Ashlea Edwards, who is a member of the Board of Governors of the Young Lawyers Division of the Florida Bar, and the Young Lawyers Division does many things to advance our profession, but one of the things they are doing now is in — they were in the process of updating the Practicing with Professionalism component of the Basic Skills Course requirement that all new lawyers in Florida are required to take, and Ashlea and her fellow board member Lara Bach are heading up that effort for the YLT.

 

So good morning Ashlea and thank you for being here.

 

Ashlea Edwards: Good morning.

 

Mike Tanner: Our next panelist is Senior United States District Judge Paul Huck from the Southern District of Florida. Judge Huck has written and taught extensively on many, many issues regarding practice management and professionalism, including teaching at the Advanced Trial Advocacy Program that’s put on every year by the Trial Lawyers Section of the Florida Bar and the University of Florida College of Law.

 

Judge Huck was appointed to the federal bench in 2000 after a long and very distinguished career as a trial lawyer in South Florida. And among his many distinctions, he is a recipient of the William Hoeveler Judicial Professionalism Award.

 

So Judge Huck, thank you for being here and good morning to you sir.

 

Judge Paul C. Huck: Michael, thank you for inviting me.

 

Mike Tanner: You are most welcome judge.

 

Our next panelist is Chief Judge Nelly Khouzam of the Second District Court of Appeal in the Tampa Central Florida area. Before her appointment to the Appellate Court in 2008, Judge Khouzam served as a circuit judge in the Sixth Circuit and before that she had a very active commercial litigation practice in the Tampa Bay area.

 

Judge Khouzam has also taught and written extensively on practice issues including professionalism. She has taught at the Florida College for Advanced Judicial Studies and she too has taught at the Advanced Trial Program at UF Law School.

 

And so Judge Khouzam, thank you for joining us and good morning.

 

Judge Nelly Khouzam: Good morning Mike and I am happy to be here.

 

Mike Tanner: We are very happy to have you.

 

And last, but certainly not least, we have with us Kara Rockenbach, who is a past Chair of the Florida Bar’s Standing Committee on Professionalism. She is a founding member of the firm of Link & Rockenbach in West Palm Beach.

 

She has a statewide appellate practice and she has handled well in excess of 300 appeals in all of Florida’s appellate courts, including the Supreme Court, and she is a past Chair of the Palm Beach County Professionalism Panel and she is the recipient of the 2019 Sid Stubbs Palm Beach County Professionalism Award.

 

So Ms. Rockenbach, thank you for being here and we are glad that you could join us.

 

Kara Berard Rockenbach: Thank you for inviting me Mike.

 

Mike Tanner: So panelists, let me very briefly set the table for our discussion with a little bit of background. I think we would all agree that issues surrounding lawyer professionalism are not new in Florida, nor is the subject of how to improve it. The Florida Bar has been engaged on those issues since at least the 1980s when the Florida Bar first created a task force to come up with a set of standards which became known then as the Ideals and Goals of Professionalism.

 

And then most recently, in 2013, the Florida Supreme Court actually created a structure to affirmatively address unacceptable professional conduct and adopted an integrated set of standards of professional behavior and those standards that were the integrated set consist of the Oath of Admission to the Florida Bar, the Florida Bar Creed of Professionalism, the Florida Bar Ideals and Goals of Professionalism, the rules regulating the Florida Bar and various decisions of the court addressing professional standards.

 

(00:05:15)

 

And the court also at that time approved and adopted a code for resolving professionalism complaints through either the Florida Consumer Assistance Intake Program, which is also known as ACAP, or through a local Professionalism Panel which exists, at least in theory, in each of the 20 Florida judicial districts or judicial circuits I should say.

 

And in 2014, the Standing Committee on Professionalism was asked by the Florida Bar to develop a uniform set of guidelines which would take into account new technological concepts including electronic communication. And so in October of 2014, the Standing Committee proposed those new guidelines which were approved by the Florida Bar Board of Governors in 2015 and adopted by the court in 2015 and those new standards are called the Professionalism Expectations.

 

So here we are now in 2019, almost 2020, and it’s been then almost five years since the last major review of our professionalism standards. The Florida Bar now has more than 107,000 members and we are the third largest organized bar in the country.

 

And so the first question for our discussion is do we think our definition of professionalism as its set forth in those integrated standards that were adopted in 2013 and 2014 are adequate today?

 

So Ms. Rockenbach, I am going to start with you with that one. Do you think the current definition in the integrated standards are adequate or do we need to change those or update those in any way?

 

Kara Berard Rockenbach: Well, thank you Mike. I had the privilege of serving on the Standing Committee on Professionalism, the Florida Bar Committee when we were tasked with looking at the Ideals and Goals and updating them, and when we did that in 2014, the primary focus of updating them was to address the electronic communications, emails and the like.

 

So when the Florida Supreme Court approved them in 2015, after the Florida Bar Board of Governors approved them, the Supreme Court in 2015 said that these Expectations now replace the Ideals and Goals. That was a facelift, if you will, on our Standards for Professionalism.

 

And I think the definition, the working definition that the Florida Bar Standing Committee on Professionalism developed in that same timeframe really does fit and work for today and I think it’s probably an evolving definition that in five years from now we may have some new components to the definition and how we monitor ourselves.

 

But professionalism is something much higher than ethics. It’s going above and beyond. As the Supreme Court said, professionalism is a choice and I think if you approach the profession and the practice of law as a privilege, then you recognize that you have a choice every single day to see your bar license as a privilege, not a right. And if you think about it as a privilege, then you do strive a little higher than just meeting the ethical rules, the basis, the baseline.

 

And when we teach professionalism through our local CLEs and throughout the state, we talk about the Golden Rule, because that seems to be — it’s something that everyone can relate to, everyone at some point in their lives has heard the concept of the Golden Rule, treating others the way you would want to be treated.

 

And so I think those concepts, when you merge them together, the seven Expectations that replace the Ideals and Goals, the working definition from the Professionalism Committee that talks about the essential ingredients of professionalism being character, competence, commitment, and civility.

 

That word civility was really important to our working definition of professionalism because the Florida Supreme Court had added that to our Oath of Admission in 2011. So when we were updating from the Florida Bar’s standpoint and the Standing Committee on Professionalism, when we were updating our definition of professionalism, that term civility was really key. And civility has nothing to do with ethics, it really doesn’t. It is about how you treat others and how you want to be treated, and so it’s a little bit higher standard than even our ethical requirements.

 

So I think our professionalism definition and the Expectations that we work under on a daily basis, I think they are meeting the needs of lawyers and guiding us to rise a little bit higher each day.

 

(00:10:10)

 

Mike Tanner: Okay. Well, thank you for that explanation and let me then turn to you Judge Huck, and I am going to ask you the same question. Do you think the definition and the standards are adequate and I am going to ask you in particular, are there other standards of professionalism or guidelines that are in use in the federal courts that we should consider adopting into our Florida standards?

 

Judge Paul C. Huck: I think the definition that the Florida Bar Professionalism Organization put together pretty much covers the highlights of it. It’s interesting there are four Cs, as was alluded to, I would add two other Cs to that. When it says commitment, I want to make sure it includes commitment to the service of others. I think this is part of our job description as lawyers and judges. I think we have a unique ability and platform to provide those services and I think it’s something that we are obligated to our society to perform.

 

The second C I would add would be contentment, because I think if you follow the rules of professionalism, at least the aspirational goals of professionalism, you are going to be a much more contented lawyer, a much more contented judge. So I think we add those two Cs to it.

 

Whenever I think of professionalism and how you define it, what the requirements are, I always like to start with trying to figure out just what our profession is all about and how professionalism impacts on our profession, and I like to begin with asking just what is our profession all about.

 

In that regard I find a very interesting and accurate answer given by a gentleman, Lee Shulman. He is with the Carnegie Foundation. Dr. Shulman provides a very simple, but pithy and quotable description to what he refers to as the deal. That is, it’s the unique social contract that our profession, the legal profession has with society in general and I want to quote Dr. Shulman, he says, “autonomy and obligation work in integrity, that’s the deal.”

 

This is the deal. It’s the social trusteeship, which we, the legal profession, have with society in general. And of course like any other contract the deal has both rights and corresponding duties and obligations.

 

Let me explain what I think or I believe Dr. Shulman means by the deal. We as lawyers are granted a great deal of autonomy and of course we have the sole right to practice law and also to regulate our profession and practice of law.

 

The deal provides that in return we as lawyers and judges are obligated to have a corresponding loyalty to our society and to protect the integrity of the legal process, so that that process serves the needs and expectations of society in general.

 

We alone as advocates and arbitrators of disputes, authors of our laws and judicial pronouncements, we are assigned the right, the critical right and task of protecting our Constitution on high principles of — that are embodied in our Constitution. We are all parties to that social contract, that is the deal, and we all benefit from the deal and likewise we are obligated to fulfill our obligations in the deal.

 

I think as an aside, if we fail to uphold our part of the deal, we may and likely will lose some of our autonomy and some of our work. I think that’s an important topic, but maybe we should leave that for another podcast.

 

So I guess the question is how do we ensure that we uphold our part of the deal? Well, to answer that question I would like to refer to an old ancient Chinese proverb which goes something like this. Laws control the lesser man, moral conduct controls the greater one.

 

Now, how does that apply to us lawyers and judges? Well, the controlling laws are the ethic rules that has been referred to, the Code of Professional Conduct, statutes, regulations and of course related too to authorities that enforces those, that be the Florida Bar, the Florida Supreme Court, and unfortunately in some cases the criminal courts. And of course as indicated these laws, they establish the minimum requirements of the lesser man, the lesser lawyer and the lesser judge.

 

In other words, these are the people who do the bare minimum. They don’t engage in unethical conduct and therefore they can keep their license.

 

(00:14:55)

 

On the other hand, things like civility, the highest level of competence, conscientiousness, fair play, integrity, a vigorous allegiance to the clients while always acting as an officer of the court, and of course I said before, selfless service to others. These are some of those qualities that set us apart and they constitute our moral conduct, at least our aspirational moral conduct, the higher planes to which all of us should and we must aspire if we are going to carry out and fulfill our part of the deal.

 

These aspirational moral controls, some of which are now embedded in every lawyer’s oath, they are not imposed by the Florida Bar, at least not usually, or by the Florida Supreme Court or the legislature or the criminal courts, but rather we should impose upon ourselves — and should impose upon ourselves, both individually and as a group of lawyers in a profession.

 

I think it’s pretty obvious, each of us should do whatever we can to strive to govern our professional lives and also I think our personal lives as well, we should govern them in accordance with these themes, these aspirational themes and doing so aspire to be the greater lawyer, the greater judge and probably more importantly the greater human being.

 

I remember the words of my first boss and mentor and now Circuit Judge Peter T. Fay. He used to bring together all the young lawyers in the firm. He would bring us together at his home on Wednesday evenings, sit in his Florida room and he taught us young lawyers how to try lawsuits and how to be lawyers. He always said to us, take the high road, practice with professionalism.

 

Of course one of the problems is we are human beings, not a lot of us are perfect, none of us are perfect, but we should always aim for the highest road that we can take. So that’s my take on it.

 

Mike Tanner: Well, thank you judge and I do — you raise some excellent points that I want to circle back when we discuss the last question, which is enforcement or addressing unprofessional conduct, because you touched on that, but thank you for those comments.

 

Judge Khouzam, I would like to turn to you and you have at least on this panel a unique perspective. You have seen lawyer conduct, both as a — or all three, as a litigator, as a circuit judge and now as an appellate judge and so I will ask the same question of you, through the lens of your experience do you think the definition that we have in the integrated standards is adequate, and if not, how would you change it?

 

Judge Nelly Khouzam: Thank you Mike and it’s a great question and I totally agree with the responses earlier and I will try to synthesize it very succinctly. In my mind the practice of law is the highest calling that we have in our society, and as was mentioned before, the practice of law is a privilege that gives a lawyer a special position of trust. So how can we promote that trust? And in a nutshell, you need to practice good behavior. You need to treat people with respect even if you disagree with them. And so that in a nutshell I think encapsulates the whole issue.

 

So whenever we see good behavior, we need to encourage that. Whenever we see bad behavior, we need to stop that. And I mentioned that to you earlier in our previous conversations, I think one way that is critical is to have the judges and those of us in the judiciary that whenever we see unprofessional conduct to really try to step in and put an end to it, because once the word goes out that professionalism is really one of the highest ideals, that should be followed, but if that does not get followed, you need to be able to step in and to say, that’s not good behavior, we should not condone that in any way.

 

Mike Tanner: So you are suggesting the judges need to be active participants then in, I will use the word policing, maybe that’s too strong a word, but monitoring lawyer professionalism and addressing it when they see problems.

 

Judge Nelly Khouzam: I agree, because Mike, one of the key issues, when I was on the circuit bench, a lot of these issues come up with discovery disputes, where lawyers invariably get so involved with the issues that sometimes I think they need to step back and to see what kind of behavior that they are doing.

 

(00:19:45)

 

So typically if one side would behave unprofessionally in terms of doing things that is not appropriate and then they would bring it to the court’s attention, if the court does not do something about it, that lawyer who practices this, what I will consider bad behavior, will get away with it, and then will think, oh, I could do this again and again and again, and that’s when we really need to nip it at the beginning and really come out and say, we in the legal profession, we will not tolerate this type of conduct.

 

Mike Tanner: All right, thank you judge for that. And in the remaining time here for our first topic of discussion, I would now like to ask Ashlea Edwards about your perspective on this. As a member of the Young Lawyers Board, you come with a unique perspective also on this panel. So what do you think of the definition of professionalism in the standards and what changes, if any, would you make?

 

Ashlea Edwards: Mike, thanks again for having me, and I have looked over to refresh, and I think it’s always good for young lawyers and all lawyers to look over the Practicing with Professionalism rules and guidelines that we are governed by regularly to remind ourselves what we strive for.

 

But in looking at it I think I will also try and be concise in my response because I think all of the prior panelists have said it so perfectly, but to me as a young lawyer, professionalism, while it can change with technology and with the changes that come with the practice of law, I really think it comes down to just a core basic principle, which is really what the first panelist had alluded to, just the Golden Rule and treating every other attorney with respect.

 

And in my practice I try and ensure that I am giving other attorneys the benefit of the doubt because we don’t know what they have got going on in their lives and invariably we are all incredibly busy, which makes sometimes for an excuse for unprofessional behavior. But I think ultimately we all do want to strive for respecting each other, whether it’s inside or outside of the legal profession.

 

Mike Tanner: Okay, thank you, thank you for that. And can you tell us a little bit about the update to the Practicing with Professionalism materials that the Young Lawyers are in the middle of right now and how those are affected by the definitions?

 

Ashlea Edwards: Definitely. So right now, and I believe as you may have mentioned earlier, I am Co-Chair with the Practicing Professionalism Committee with Lara Bach, and this year we have really been trying to actually convert all of the Practicing with Professionalism programs from a required in-person attendance to an online-only attendance.

 

And so just for a brief background, Practicing with Professionalism is phase one of two phases of the Basic Skills Course requirement for newly admitted attorneys. So whether you are young as it relates to age or just young to the practice of law in Florida, you are required within your first year to take the Practicing with Professionalism course.

 

So it’s made up of a few segments actually and this year we have added a few different segments that were not on the in-person attendance or on the online program before. And one of those was I think a wonderful addition; it’s an Implicit Bias segment. And so we actually had Rachel Godsil and Will Snowden, some people who travel around the country to talk about implicit bias as it relates to the practice of law.

 

And so just being aware I think, some of the takeaways of their segment was just being aware of the implicit bias that we all internally have and recognizing that we have those implicit biases will help us in our goals to attain professionalism within the workplace or within the practice, or even in networking situations, and so that is — that’s one of the segments.

 

We also are working with the Center for Professionalism, the Henry Latimer Center for Professionalism, they gave a wonderful talk on professionalism and ethics.

 

And we did have some update by Allie Sackett with the Florida Bar on the disciplinary system. So to give newly admitted attorneys ideas of what not to do, because even when you read the Rules of Professional Conduct, occasionally there are some gray areas, so she talked about the Ethics Hotline that newly admitted attorneys can call if there are questions about what to do in a ethical dilemma in the practice of law, so that was helpful.

 

(00:25:06)

 

We also have a segment for LegalFuel, which is a wonderful resource and website created by the Florida Bar, where people can go to watch continuing legal education credits and just have a very wide variety of resources at the tip of their fingers.

 

And so I know that that’s a long way of saying we are updating that Practicing with Professionalism program, just to ensure it is remaining as timeless and as relevant as possible as the professionalism grows and changes with technology and social media.

 

Mike Tanner: Well, thank you, and that’s actually a very good segue into our second topic to discuss today, which is how do we teach professionalism and is it adequate. So if we are generally satisfied with the definition, and I think I heard a consensus among all of you panelists that we are, then are we teaching it in a way that optimizes professionalism and encourages it.

 

So for a little bit of background, I think we all know this, but I think maybe our listeners don’t. Right now members of the Florida Bar are required to have at least one hour of an approved professionalism program for each three year CLE reporting cycle, and then in addition to that, as you alluded Ashlea, the newly admitted lawyers have the Basic Skills Course requirement, including the Practicing with Professionalism component.

 

So Judge Khouzam, let me start with you, do you think that is adequate, and if not, what more should we do?

 

Judge Nelly Khouzam: I would love to see, I know it started a while back about mentoring and I know that a lot of jurisdictions have mentoring in place, because it goes down to the following that if you see — if you learn from the good example, you see one of the great lawyers that you admire and you see how they are in terms of their practice, how they behave, you want to emulate that, you want to be able to do what that lawyer does.

 

I would love in addition to these important courses, if we could really establish more of a mentoring system to have young lawyers, especially in this day and age, when you mentioned Mike, goodness, that we have over 107,000 members of the Bar and we know that a lot of them are not part of any firms where they would have the senior partner or some of the other older lawyers really sit down and mentoring them, as Judge Huck indicated that he was when he was a young lawyer, and I had that privilege as well when I was a young lawyer.

 

But the majority of the attorneys right now are in their own practice. A lot of them really work from their home, because everything is done on the computer. So those are the folks that if we could somehow reach and somehow set some sort of system that would be able to match them with a lawyer and to establish this mentoring, so for any issue that they may need, just to use somebody as a sounding board, that I think would go a long way Mike.

 

Now, that’s a tough sell, because everybody is busy, people don’t want to be bothered and a lot of them say well, I have been there, done that, I don’t want to waste my time. But I think it’s so critical for the future of our profession that I think we may need to take another look at it.

 

Mike Tanner: You know judge, that’s such a great comment, because I think I have seen statistics that now a majority of our members are in solo practices and so that creates the very need you just described.

 

Kara Rockenbach, what do you think about how we are teaching it and should we do more?

 

Kara Berard Rockenbach: I couldn’t agree more with Judge Khouzam about mentoring. I was thinking as she was speaking about the programs that we have tried to launch just locally here in West Palm Beach and we have a new one underway, the concept is really needed in our profession, as our profession grows and we have so many more lawyers here practicing in Florida, and as Judge Khouzam noted, a lot who are either solo or they don’t have the support of a firm.

 

(00:29:46)

 

Judge Huck told us a great story about his mentor having Wednesday night evening dinners and teaching them how to practice law in his Florida room, what a great concept and that a lot of us who love our profession are doing that in small ways, with those with whom we have interaction and connection with. But a program is important and we are trying to do something like that here in Palm Beach County, a little bit more formal.

 

One of the other ways I think that we teach professionalism is, and this might be jumping into your next topic and I don’t mean to, but the Local Professionalism Panels that the Florida Supreme Court established back in 2013 and then revised with applying those seven Expectations in 2015, those Local Professionalism Panels, I call them the LPPs, they are a teaching tool. They are referrals for lawyers who have behaved badly. However, it’s a group of peers who are Bar leaders and we have zero authority to sanction, to punish, to find, there is zero authority, but they turn out to be the most didactic concept and event in some of the lawyers’ lives.

 

When they come before this panel of peers, you have to discuss what they did improperly, discuss what rule they violated and there is a learning process, it is a teaching process. And interestingly enough in some of our panels that we have held locally, there have been mentorships that have formed out of that referral.

 

For instance, we had a referral of a very seasoned lawyer who was having trouble with technology and violating or having issues with some of the expectations and he was just frustrated and needed someone to help him walk him through technology, he was a solo practitioner, and one of our panel members was able to, even after the session, the Local Professionalism Panel session, after we counseled him and he expressed his frustration, one of the panel members offered to have coffee with him going forward to kind of keep a check and dialogue about what problems he was encountering. It was ideal.

 

And I think that some of the teaching that we could do, I agree with Judge Khouzam, I think mentoring is essential to our practice of law and keeping our professionalism at the highest level, but I also think that these Local Professionalism Panels, when done properly and effectively, they are teaching tools for lawyers, absolutely.

 

Mike Tanner: So Ashlea, let me get your perspective on this from the standpoint of a young lawyer who has more of your career ahead of you certainly than the rest of us do on this panel. What do you see is the best way to teach professionalism, not only at the beginning of a lawyer’s career, but throughout a lawyer’s career?

 

Ashlea Edwards: Of course, and this is something that obviously as an attorney I strive for, but I just strive for in my everyday life. But as a young attorney, as far as teaching attorneys, I think we need to start from the law school level. So often students are developing a new way of thinking and along with that we just need to program in there also those professionalism — the importance of professionalism.

 

And so the Florida Bar Young Lawyers Division is actually working again with the Center for Professionalism for the Florida Bar. They are doing some phenomenal things over there. But we are working with them to try and host Professionalism Panels at law schools, at least two a year. We have done one so far after we have started working together and that was this past July 23 actually of 2019 at Florida Coastal Law School. We had some wonderful panelists that spoke to a roomful of students.

 

And so I think just starting from the law student age or level of practice will definitely instill in those professionalism behaviors that need to carry on through the life of our practice.

 

As far as continuing that throughout the practice, I mean I definitely think working with the Florida Bar Young Lawyers Division, we try and put out as many CLEs related to professionalism and mental health and wellness.

 

(00:34:45)

 

And LegalFuel, like I mentioned earlier, actually to touch a bit on mentorship, if young lawyers don’t have, if they are working or if they decide to hang a shingle on their own right out of law school, which many people do, the Florida Bar Young Lawyers Division has tried to breach that gap for those people and create this LegalFuel website, which is a Practice Resource Center. So there’s videos trying to teach young lawyers or lawyers of any age or year of practice talking about how to run a business, marketing, finance, technology, but also related to some mentoring for those newly admitted attorneys who don’t have a partner or a colleague to turn to when they are in need of maybe some advice on how to act professionally in a situation.

 

So I think really getting those resources out there, either through our local Bar affiliates or through the Florida Bar Young Lawyers Division, that is definitely one way to keep lawyers abiding by the professionalism canons throughout their career.

 

I mean I do think it is incumbent upon each attorney, young attorney or older, more experienced attorney to continue that goal in striving for professionalism throughout their career as well.

 

Mike Tanner: So would you say that the current requirement of one hour for every three year reporting cycle is adequate or should we require more throughout a lawyer’s career?

 

Ashlea Edwards: I definitely think the hour requirement is sufficient. I think though that above and beyond that requirement we should strive to really take more professionalism, whether or not they are CLEs, but just participate in Professionalism Panels or trying to engage in professionalism type initiatives throughout our local legal communities.

 

I mean frankly, I think we should be trying to do more than an hour for every — I think every three years was the requirement. I think personally we should be trying to do more than that, but for those attorneys that are busier, an hour is good, at least they are getting one hour.

 

Mike Tanner: Right, right. Thank you for that. Judge Huck, let me ask you what your thoughts are on the current requirement of one hour for every three year reporting cycle and in particular in regard to lawyers that are farther along in their career or maybe at the end of their career, what are your thoughts sir, about what sort of professionalism or what level of professionalism teaching we ought to have there?

 

Judge Paul C. Huck: Well, I can’t imagine one hour is sufficient and unfortunately this is always the comment that’s made in these kinds of sessions, we are always preaching to the choir. The real challenge is how do we reach those people who don’t take initiative to visit this podcast, to go to the CLE courses, to do the extra mile, to become proactive in seeking out a mentor. I don’t have an answer for that.

 

I will tell you one thing, I would like to circle back to something that Ms. Edwards was talking about, I think the comment was something to the effect that looking to some of the older lawyers, more experienced lawyers, and I would like to get her observation as to whether we have failed in that responsibility, and it is a responsibility, and what she would like to see some of us with gray hair do more along the lines of bringing young lawyers along, particularly those who don’t have the access to a formal mentor or having the structure of the law firm to assist them in all the tough decisions they have to make as young lawyers?

 

Ashlea Edwards: Well, I appreciate that question and I definitely think both newly admitted attorneys and more experienced attorneys can help each other out in those situations, it doesn’t just go one way. And I think really, at least what I have tried to do is, I am still a young lawyer myself, but as I see young lawyers, other young lawyers that are coming in passing the Bar or newly admitted attorneys, just reaching out to those attorneys and making sure that they are comfortable within their practice, that they are getting their questions answered.

 

And I think that that’s something that more experienced attorneys can definitely do is just, even if it’s not a formal mentoring relationship, that they can reach out to newly admitted attorneys to say, hi, I am here if you want to talk for five minutes about any situations that you need to talk about, whether it’s on professionalism or otherwise related to their practice. I think that’s definitely a way for us to recognize.

 

Now, that’s assuming that people are out in the community seeing these new attorneys, these newly admitted attorneys and they are recognizing that they are out there. So I don’t know how to breach that gap, but definitely if a newly admitted attorney comes across the table or across — in front of you, I would definitely just reach out and ask for some type of — see if they need any help.

 

(00:40:06)

 

Judge Paul C. Huck: I think one of the problems is not speak to a lot of young lawyers and law students about this very subject mentoring and the advice I give them is you have to be proactive, you can’t sit there in your office and expect senior lawyer or someone down the hall or someone else just come knocking on your door and say I’m here to be your mentor.

 

I think that young lawyer has to know that he or she has to reach out, and not be bashful about it because I know there was a comment earlier about lawyers being so busy these days, but my experience has been that for the most part, not every lawyer, but for the most part, lawyers with experience are anxious to help. Matter of fact, it’s something they want to do, they get great satisfaction from it if they’re asked to do it. So I think it’s — I think there is got to be a better communication between potential mentors and potential mentees to get them together.

 

I don’t have an answer for that, I know we have some formal programs and they work but they don’t work for everybody. So I think we should think about how we can bridge that lack of communication gap.

 

Judge Nelly Khouzam: It’s interesting, Judge Huck, that you bring that up. There’s an organization, the Council of Chief Judges of the State Courts of Appeal they have this system that any new Chief Judge that is coming into that group, they assign them “a Buddy Judge”. Someone that will basically talk with them and show them and help guide them through this organization.

 

And when you mention that, the thought popped into my mind wouldn’t be great to have almost like this buddy system that if some of the more senior lawyers that if somebody’s getting the list, these are all your members, may be to try to pair them up, call them, instead of using the word “mentor” and some folks may say, well, I don’t need any mentoring. But almost like he is my — he is a buddy, somebody that I could reach out to so it’s not anything formal but rather informal.

 

I think we need to think now outside of the box to see what we could do and everyone has — you all, each of you who spoke and have some excellent, excellent ideas and you hit the nail on the head, Judge Huck, when you say that we are preaching to the choir, usually it’s the same people that are doing the same things over and over and over again that I think we just need to now go beyond that; just food for thought.

 

Michael Tanner: So, Judge Khouzam, those are excellent points and let me ask you then, are you suggesting that the buddy system if we want to call it that for lawyers like you have with the judges would be required? If we draw a parallel to the medical profession, there are requirements for an internship or a residency that is — and that’s not an exact parallel, but it’s training that young doctors get along the way. Are you suggesting something that it would be required like that?

 

Judge Nelly Khouzam: It’s interesting, Mike. You hate to require anything because right now from what I’m here from lawyers they are overburdened, okay, now we have to do an hour of technology, now we have to do this, now we have to have all these CLEs, now we have to do. So you hate to do it as a burden, but maybe I like to use rather than doing the forceful but maybe you want to do to reward them that if we set up a buddy system, why not some of the senior lawyers that they could get credit for that, ethics credit rather than having to undergo certain classes or certain courses maybe reward that so you could give the incentive to folks.

 

This is something that I want to participate in, and to make sure that we don’t miss any new lawyer that perhaps do it rather than a requirement more of an incentive. Again, because what I’m hearing, we are imposing too many rules, too many requirements, people are really tired of that.

 

Ashlea Edwards: From Judge Khouzam’s ears or lips to the Florida Bar’s ears because we in West Long Beach are working on just that. I mentioned that we’re starting a buddy program it’s called Bar Buddies instead of this.

 

And so — and we were trying to incentivize younger lawyers and more experienced lawyers and one of the brainstormed ideas was they should get credit, they should get some type of CLE credit for however — and we’re working with trying to work on the mechanics of that and how it would actually work and how they get the CLE credits. But yeah, I think like Judge Khouzam, I’m reluctant to make it mandatory the mentoring or buddy system.

 

(00:45:03)

 

But I like the positive incentive that if you sign up for this program and you meet with your mentor and assist and you’re kind of a phone call away for someone who needs help to answer a question then you get the CLE credit for the year. So we’re working on just that. I’m excited because I think it is a positive incentive.

 

Judge Paul C. Huck: I was just curious if the Florida Bar still has the SCOPE Program.

 

Michael Tanner: If they have it, Judge, it’s not called SCOPE anymore. We do have Lawyers Advising Lawyers, we have that program, and I think that has more of a substantive bent on it than — that you could call a lawyer if you have a substantive law question more than a professionalism bent, but we do not have the SCOPE Program any longer.

 

Judge Paul C. Huck: I was going to comment about the mandatory aspect of mentoring. I don’t think that’s going to work for a number of reasons, not the least of which is if someone doesn’t have his or her heart into mentoring, it’s not going to work, you need people who really want to do it. And I think, for the most part, if asked most lawyers, not all lawyers, but most lawyers would be more than happy to do some mentoring for a lot of reasons not the least of which it makes you feel good about what you’re doing and it kind of strokes ego to think that someone considers you a mentor someone that they look as a role model.

 

Michael Tanner: Well, panelists, I want to keep us on schedule. I know you have busy schedules and so let me turn us, thank you for all of those excellent comments, let me turn us to our third and last topic for discussion, which is, how do we address unprofessional behavior when it occurs and this is perhaps the most difficult question to deal with.

 

And Kara, you mentioned the LPP program, let me ask you if you would elaborate a little bit on how you see that working and is that working statewide?

 

Kara Rockenbach: I think it is. I was — actually I had an opportunity to teach at the Circuit Court Judges Conference two years in a row, first time presenting with Justice Labarga and we taught professionalism and touched briefly on the local professionalism panels, and as a result, there were so many questions by circuit court judges about the panels that we came back and did it the next year with a panel and taught more about professionalism and the LPP.

 

I think the LPP is essential to our practice going forward into our profession. Here in Palm Beach County, we have anywhere from 5 to 15 or more panels a year and I think it is a tool, not just and we don’t have any authority to discipline. So I hate to use the word it’s not a disciplinary tool, it’s really a mentoring or a didactic tool to help your colleague who took a misstep who was inappropriate to a judge or to opposing counsel.

 

A lot of the complaints and referrals involve emails, a lot of them. And so, it’s an opportunity for the responding attorney to sit in front of his or her peers and recognize the folly of his or her ways, own it, take responsibility for it and say I want to do better. And it’s really a counseling session. They’ve been I think very, very successful here in Palm Beach County. There have only been a handful in the past. I don’t know how many years, we were doing it before the Florida Supreme Court established the formal panel but I would say in the last five years, they’ve been actively involved with the LPPs.

 

There have only been a handful of attorneys who have blocked and said they don’t want to attend, and quite frankly, those were the ones who were slightly on the line where we felt should you be referred to ACAP or should we do this here locally.

 

If there is a chance of rehabilitation and to give a lawyer a second chance, then I’m all in favor of the LPP and the teaching mechanism that it affords, the responding attorney. But in those instances where the responding attorney is recalcitrant, doesn’t take responsibility for his or her actions or refuses to participate in that voluntary process then the only option you have is to either say, well, I hope you don’t do it again or refer them to ACAP and then those Florida Bar grievance process.

 

So I’m not sure if that answers your question but I feel pretty strongly as you can tell about the LPPs.

 

Michael Tanner: Yeah, well, let me ask the judges, Judge Huck and — well, Judge Huck, first you and then I’ll ask Judge Khouzam the same question. What are some of the professionalism problems that you see and do you think the local professionalism panel would be the right mechanism to use to address those?

 

(00:50:07)

 

Judge Paul C. Huck: Well, I am going to have to side with the lawyers in general on this one. I appreciate the fact that when they come before me, they’re on their best behavior and problems usually arise in depositions and things of that — outside the compounds of the courtroom, I don’t see a lot of instability, and when I do, I think it’s my obligation, and I think it always begins at the top whether it’s Trial Judge, the Appellate Judge or senior partners to take control of the situation and I’ve been out of the practice for now 20 years, so I don’t know how these panels work. I do know we have a Federal Court here in the Southern District, we have a peer review committee and when someone gets out of hand, unstable is that nature, they can do report to them and there will be counsel and if there’s a further problem then maybe more drastic steps to be taken.

 

But I have to say, my experience has been pretty good. I think lawyers on the most part are very civil, very professional, at least when they appear in Federal Court and when they don’t, it’s very simple. My responsibility is to make sure that they do. If I see a lawyer or lawyers that are just not getting along, you can’t even look at each other, they’re so angry with each other, I have certain mechanisms. I tell them to step outside, cool off, come back in, shake hands and start from scratch, and that usually takes care of it, because I think for the most part lawyers want to do the right thing, want to do the civil thing, want to do the professional thing.

 

As human beings we all slip from time to time, but I think for the most part we want to do the right thing, so that’s been my experience. So maybe it’s different than others. I think it’s fewer problems than we sometimes lead ourselves to believe.

 

Mike Tanner: Judge Khouzam, what about your experience?

 

Judge Nelly Khouzam: I have to agree with Judge Huck maybe because I sat on the Appellate Court. Thank goodness, we have very few professionalism issues and the ones that we see in open court we, for instance, not too long ago somebody misrepresented something in the record.

 

Well, we have our iPad that has everything, the entire record is at our fingertips. So right there and then we could nip that in the bud, but what we have seen are those appeals from Circuit Court cases where you dealt with some unprofessional conduct.

 

I will give you example of one case, Mike, and how we dealt with it. This was a case where both sides, it was highly litigated, where both sides agreed that they would have a clean copy of the medical records provided to the jury, and a lot of the redaction regarding things that were prejudicial needed to be removed and they had a long tortious hearing what was agreed as to all of these items being removed from the record.

 

So that was accomplished and so in the plaintiff’s case once he able to rest he went ahead and moved for that exhibit, which he thought was redacted to the jury.

 

Well, it turned out to be before the jury went back to deliberate, the lawyer realized, oh good god, the wrong package was sent to the jury. The other side it was very clear — the other side knew exactly what was submitted, knew that it was the unredacted set as opposed to the redacted set, and rather than agreeing saying, you know, Judge, yeah, that was an error. It was on the record that they totally objected to that unredacted of the correct one to be given to the jury, and then argument like they are the one that moved it, it’s too late now, and even though the jury has not seen it yet inexplicably the Judge allowed it to go in.

 

Well, it came up on appeal. The opinion that we wrote was very pointed. We mentioned the lawyer by name and basically made it very clear that this is not the type of behavior that’s appropriate, that this is unprofessional, the lawyer knew exactly we will not condone that type of behavior.

 

So I think circling back to what I said earlier, Mike, I think it’s incumbent upon us judges when we see inappropriate behavior, we have to be able to — first of all, call it and then try to do something about it, because I think ultimately we have that responsibility.

 

So that’s the rare case thankfully that happened and just like Judge Huck we barely see it on the Appellate Court but occasionally we do see it percolate up from the Circuit Court Bench.

 

Mike Tanner: Well, as Judge Huck mentioned I think most lawyers are on their best behavior when they’re in front of you or in front of Judge Huck or other judges.

 

(00:55:05)

 

So, Ashlea, let me ask you from a young lawyer’s perspective about the unprofessional conduct that occurs in depositions or in discovery or somewhere outside of the presence of the court. From a young lawyer’s perspective, what do you think would be the best way to address that?

 

Ashlea Edwards: So, I will have to agree on a few points with Judge Huck and Judge Khouzam in a sense that, I do believe that lawyers of all background and all experience levels do want to be the best. They do want to be professional in their communications and so with that being said, tempers flare in depositions and people, people do write emails when they’re upset instead of waiting and reading that email first.

 

And so, for those types of interactions, I mean, I definitely think the local professionalism panels, if it is a recurring — if it is a recurring behavior from an attorney that that could be beneficial. Anything if it’s brought to the judge’s attention, if it’s something that continually happens throughout the discovery process, if it’s brought to the judge’s attention, the judge can kind of make a comment to bring it to the attorney’s attention or just or just even coming from opposing counsel or co-counsel just trying to give that other attorney the benefit of the doubt if it does not happen on repeated occasions or just bringing it to that other attorney’s attention I think is definitely helpful, but for the more egregious cases it’s something that probably should be brought to either a judge’s attention or a local professionalism panel to be dealt with.

 

Mike Tanner: Okay. Well, thank you, and on that last point, I have a question really for all of the Panel, and that is, you hear anecdotally that lawyers are reluctant to use the local professionalism panels because they don’t want to be perceived as a tattletale or a snitch and I think there is that culture.

 

The first question I think, and Ashlea, I will follow with you on this, do you think that’s accurate and if it is how do we change that culture so that people are more willing to come forward and use the LPPs?

 

Ashlea Edwards: That is a tough question, Mike. I mean, I definitely think that making sure people are aware that the LPPs or the Local Professionalism Panels are a resource and that they’re there and who the chair of that Professionalism Panel is and how to contact them. And that process I think is important for people to know that, that it exists and it is a resource for them.

 

As far as the stigma that comes along with the Local Professionalism Panels, I have not seen it firsthand but I am sure that it does exist. I have heard people talk about it at an arm’s length type of discussion, not about anything in particular, but I do think that, that stigma exists. But I think the more that we use — the more that we market those Local Professionalism Panels and the more that attorneys use them at stigma, could then go away.

 

Mike Tanner: And Kara, I’m going to ask you the same question. What are your thoughts on that if there is a stigma in using the Local Professionalism Panels, how do we address that?

 

Kara Berard Rockenbach: Sure. I don’t see a stigma. Here in the 15 Judicial Circuit. I don’t think there is a reluctance to refer. I think the referrals that we receive are from frustrated lawyers who want a smoother practice with their opponent or we’ve had referrals from judges who want the lawyers who are appearing before him or her to do better.

 

And one of the things that we’ve said in certain panels when it’s a judicial referral we will say it’s your lucky day. This judge thinks you have more potential than you’re showing. And instead of referring you to the Florida Bar having a permanent blight on your record, the judge referred you here, and it’s the second chance to hit a Reset button.

 

So we make it a positive experience and hopefully that removes the — if there is a stigma I haven’t seen it and I think that the lawyers who present the referrals to our committee are really just frustrated. And the judges — the judges are the same. The ones who have referred have been disappointed and frustrated, and so they hope that we are able to counsel and hit a Reset button.

 

(01:00:03)

 

So we make it a positive experience if the responding attorney is receptive to that experience and the teaching that takes place during that hour-long session, approximately an hour, then I think it removes the stigma and it truly is, when you think about it, it is of a second chance because some of the referrals the Florida Supreme Court has gotten extremely more harsh if you will on the blurring of the line between unethical and unprofessional behavior, and you can see that in some of the recent Florida Supreme Court decisions in the last two years and how they handle referrals.

 

So when the LPP is established and that responding attorney shows up, it is your lucky day. You get a chance, you get a second chance, you get a chance to hit a Reset button, you get a chance to take responsibility for your mistake, do apologize and to move forward in a positive manner that is commensurate with the privilege to practice law.

 

So, I hope other circuits aren’t seeing a stigma, if they are, maybe there’s a way, maybe this podcast could help in presenting the LPP in a very positive light.

 

Mike Tanner: It sounds like the LPP in Palm Beach County is working very well, let’s hope we can achieve that same level in the other circuits.

 

Panelists, we have gone right at an hour, which is what we had scheduled this podcast to be. Judges Huck or Khouzam, did you want to comment on anything that the other panelists have said before we wrap this up?

 

Judge Nelly Khouzam: Nothing from me. I thought this was an excellent discussion and I’m really gratified to hear how well the LPP is working in that area. So it was everything that was said was excellent.

 

Judge Paul C. Huck: I think it’s been a very good experience this morning. It certainly has educated me somewhat as to what’s currently available to the Florida Bar and what’s happening out there because like say, sometimes we judges isolated up here, not really understanding what’s going on in the real world among practitioners.

 

Mike Tanner: Well, thank you sir. Thank you panelists for your time. This has been a very informative discussion I think and you’ve identified some excellent ideas and thoughts that I hope we as a Bar pursue because I do think we can make a difference in raising the Bar of professionalism with the help of the center and with the help of the Standing Committee.

 

So panel, I think that will conclude it and I thank you for your time and your effort in making this a success.

 

Jonathon Israel: Well, unfortunately, it looks like we’ve reached the end of our program today. I want to again thank our special guest-host, Mr. Michael Tanner, for joining us today.

 

Michael, for listeners, have any questions or wish to follow up with you, how can they best reach you?

 

Mile Tanner: Jonathon, they can reach me by email at [email protected], and thank you very much for allowing us to have this conversation.

 

Jonathon Israel: Oh, thank you again for coming. I think it was a great conversation that we had.

 

Again, so thank you to our listeners for tuning in. If you like what you heard today, please rate and review us in Apple Podcasts, Google Podcast, Spotify or your favorite podcasting app. I am Jonathon Israel, until next time thank you for listening.

 

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Outro: Thanks for listening to The Florida Bar Podcast, brought to you by The Florida Bar’s Practice Resource Center and produced by the broadcast professionals at Legal Talk Network.

 

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