By John Pacenti
Palm Beach Post
March 5, 2004

JACKSONVILLE [Fl]-- When The Florida Bar determined it was high time to take an extensive look at how it disciplines lawyers, it had no idea the genie it had unleashed.

After announcing the initiative last June, the organization was deluged with e-mails and letters -- from attorneys, disgruntled clients and citizens at large.

"It definitely struck a chord," said Florida Bar President Miles McGrane III of Coral Gables. "We thought this was going to be an in-house, parochial thing."

The Bar last reviewed its disciplinary procedures in 1989, so this is the first opportunity for many to speak out about a process that can be time-consuming and infuriating to both attorneys and people who file complaints. The primary criticism is that investigations take too long, allowing unscrupulous lawyers to continue preying on clients. At the same time, lawyers facing an unwarranted charge can be left under a cloud for months.

Other critics, including one lawmaker, say big firms and lawyers with connections to the Bar get the feather touch while the Bar cracks down on sole practitioners and minorities.

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.' "

Other lawyers argued that the system isn't broken. 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 used to harass and humiliate any member of the Bar," Gunewardene's e-mail said.

A lawyer from Jacksonville is pushing this extensive review: Henry Coxe III, a high-profile criminal defense litigator who has served on the Bar's board of governors since 1995. Admitted to the Bar in 1973, he received the Bar President's Award of Merit last June.

The same month, he was named chairman of the 23-member Special Commission on Lawyer Regulation, which is examining the Bar's disciplinary process. The panel is composed of 22 lawyers, including prosecutors, judges and a law professor, and one non-lawyer. Judge Barry Stone of the 4th District Court of Appeal in West Palm Beach is a member.

Coxe encouraged McGrane to look at lawyer regulation partly because the Bar now is spending $9.6 million a year policing the state's 73,931 lawyers.

"It's a lot of money, and if we are spending that much money, we should be protecting the public," Coxe said. He cited another big reason: Florida lawyers in a 2003 survey said the profession's biggest problem is its public image.

In 2002-03, the Bar opened 8,671 files against lawyers, with 383 resulting in disciplinary action --

fewer than 5 percent. Forty lawyers were disbarred, 26 resigned, 116 were suspended, 88 were put on probation and 113 were publicly reprimanded or admonished.

The commission will recommend changes to the Bar's Board of Governors, which would in turn give suggestions to the Florida Supreme Court. The high court will have the final say over any changes to the disciplinary system.

The review was supposed to take a year. But with so much interest in the issue, it's now expected to take twice as long.

Last month, the Bar sent out 13,600 surveys to gauge opinion. The questionnaires -- due back March 31 -- were sent to more than 6,090 people who have made complaints, as well as 6,046 attorneys who have had complaints filed against them.

"There's no predicting what the end result of this is going to be. Everything is on the table," said Coxe.

There's much to look at.

Attorneys don't get punished only when they pilfer trust accounts or are convicted of fraud. They get in trouble for failing to file court documents on time and a variety of other issues affecting their clients. But most of the time, Bar investigations lead to no discipline at all.

Attorneys are far apart on what the commission should recommend to streamline the process and build public confidence.

Broward County Assistant State Attorney Craig Dyer called the grievance process "irrational," "knee-jerk" and "heavy-handed."

"Anyone can file a grievance, and I mean anyone. All it takes is a pen, a piece of paper, an envelope and stamp," Dyer wrote to the Bar last year. "The gracious Florida Bar investigates all."

W. Reece Smith Jr., former president of the Florida and American bar associations, disagreed. "The problem is not that we're doing too much, but that we're doing too little," the Tampa attorney said in a September letter.

McGrane thinks that, when all is said and done, the commission will suggest tweaking the system, not a major overhaul. "Other state Bars come and visit us to see how it's done," he said. "They consider us being on the cutting edge. But that doesn't mean it doesn't need to be looked at."

HALT, a Washington-based legal consumer advocacy group, rated lawyer regulation in 2002. It gave Florida a C-plus, the second-best grade in the nation. Massachusetts received the highest ranking, with a B-minus. Pennsylvania and North Carolina each got F's.

HALT gave Florida an "incomplete" on promptness, saying there was no record of the Bar's timeliness in filing formal charges and imposing sanctions on attorneys once complaints are received. And overall, HALT said it found a national pattern of "delay, secrecy and toothless sanctions."

Kathleen Williams, the federal public defender in Miami and a member of the commission, said finding the right solutions for the disciplinary system is a lot like Goldilocks trying to find the perfect porridge. She said that at the very least the review will demonstrate the Bar has enough integrity to police its own members. "The only way that can be ensured is to make sure the mechanism for reviewing attorney conduct is the best," she said.

The Bar says complaints in Florida have dipped in recent years because of its Attorney Consumer Assistance Program, a 3-year-old hot line where Bar staff attorneys mediate minor disputes between lawyers and clients. "My lawyer won't return my calls" is a common refrain from these callers.

Typically, the lawyer who finds himself in trouble is in his mid-to-late 40s and either works in a small firm or is a solo practitioner, said Tony Boggs, the Bar's director for lawyer regulation. Basically they are overwhelmed, he said.

"They have no infrastructure. There's no safety net, no backup like there is at a large firm," Boggs said.

The Bar now also offers an option to discipline in some cases, Boggs said. Instead of punishment, lawyers can take ethics or legal classes.

He also said Florida's system is one of the most open in the country. Citizens can review even unsubstantiated complaints against a lawyer up to a year after a case has been closed.

"For a full year, it gives consumers the right to know what people are saying about the lawyer," Boggs said.

Distrust of the Bar has fueled an effort to have lawyer discipline handled by the state Department of Business and Professional Regulation, which oversees licensing and regulation of accountants, veterinarians, contractors and about 200 other occupations.

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 case 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 Bar and because of his position in the legislature. Effman's attorney Kevin Tynan denies this, saying the suspension was the stiffest punishment Effman could receive.

"I think the Bar had a reasoned approach, and I speak on the whole system and the rules that have been created," said Tynan, who is also a former branch staff attorney for the Bar's Fort Lauderdale office. "There is always an odd case that is too harsh or too lenient."

Gerald Kogan, a former state Supreme Court chief justice and respected legal ethicist who has handled attorney disciplinary cases, said the state Bar is tougher on lawyers than the state is on doctors, accountants and other professions it regulates.

"When I first started practicing law, you would find offenses committed back then that would merit a reprimand, which are today grounds for disbarment," said Kogan, who was admitted to the Bar in 1955. "At one time, it was almost a hit-and-miss operation. In the last 20 years it really has become very tough."