Monday, March 3, 2014

The Supreme Court Takes a Professionalism Stand

The Florida Supreme Court recently delivered a public reprimand in The Florida Bar v. Jeffrey Alan Norkin, Case No. SC 11-1356. There are those who contend that this case is significant, and others who disagree. The Miami New Times questioned "Is Jeffrey Norkin Florida's Most Obnoxious Lawyer? The State Supreme Court Seems to Think So."

You may find this case interesting reading. There are Rules Regulating The Florida Bar. Many of us studied them back in the day before we took the "ethics bar," which is officially called the Multistate Professional Responsibility Examination or MPRE. Those rules and that test are about ethics, rules, and behavior. One might act within those rules and yet not be courteous or professional.  

There has been a trend to address something larger than ethics, something called "professionalism." Florida has tried to lead in this effort. There have been numerous noteworthy achievements. The Bar established a professionalism center. The Court has adopted an amendment to oath of admission to remind attorneys of professionalism. There have been innumerable continuing education hours focused on professionalism. These efforts are detailed on page 24 of the Court's opinion. The Court's references to professionalism efforts are interesting. 

But the efforts have not been enough. We can argue about whether any volume of consciousness raising or education or reminders will ever be enough for some sub-segment of our Bar. Perhaps that is not the point, but instead we need to be concerned with what volume of education and reminders will be enough for the vast majority of our Bar. Perhaps there will always be some minority for whom only the stick will be successful.

The Court in this instance seems willing to apply that stick when the circumstances are sufficient. 

In this case, the investigation revealed a pattern of combative behavior. Mr. Norkin threatened legal action against a Mr. Tobin, a senior Judge appointed by the court to act as a provisional director of the company involved in litigation in which Mr. Norkin represented a party. He accused Mr. Tobin of conspiracy, and "berated" him.

The presiding judge noted that Mr. Norkin came in "like a bull in a china shop," and "consistently" screamed during proceedings. The Court noted that "eventually" the judge recused himself, but that Mr. Norkin "continued his unprofessional behavior" before the next judge assigned. The Court quoted transcripts of proceedings before the second judge in which she instructed Mr. Norkin "don't yell at me," and noted that he would "yell at me every time we have a hearing." Eventually, the second judge in frustration said "oh my god, I'm done. Good Bye. Not doing this. Not going to be questioned by you."

Mr. Norkin explained to the referee that his voice is "naturally loud." The referree concluded the explanation was "patently unvelievable" and that other explanations of events offered by Mr. Norkin were "implausible." 

The Florida Bar referee concluded the investigation and recommended a 90 day suspension and that Mr. Norkin pay the costs associated with the investigation. Of course, the recommendations to the Court are precisely that, the Court is not bound.

The Court noted that is "crucial to recognize the Court and The Florida Bar have been advocating professionalism and civility for over 20 years." The Court noted that it is "profoundly concerned with the lack of civility and professionalism demonstrated by some Bar members." It noted that Mr. Norkin's behavior demonstrated in this case continued "despite repeated warnings from judges." The Court cited the Rules Regulating The Florida Bar, and it concluded "this profession cannot tolerate such behavior" as demonstrated in this case. 

The Court noted that "competent, zealous representation is required" when representing a client. However, that "screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him are not among the types of acceptable conduct, but are entirely unacceptable. It concluded Mr. Norkin's "unprofessional conduct is an embarrassment to all members of The Florida Bar."

The Court rejected the referee's recommended punishment (90 day suspension) and instead imposed "a two year suspension," and a public reprimand by the Court. That reprimand was delivered in February. 

Is professionalism important? I think so. I am also inclined to believe that I am not alone. I meet so many zealous advocates and fine attorneys out there practicing in our offices. I have rarely had to issue an instruction to remind counsel of their obligations regarding behavior. I cannot think of anytime that one such warning was not sufficient in a case to moderate behavior where emotion may have fleetingly overcome decorum. 

Know that your demeanor and professionalism is noticed, is important, and is valued. 

Whether this case is meaningful or not remains to be seen. Those who question its significance note that Mr. Norkin had a history of disciplinary proceedings, this was not a first offense. They note that the Court concluded that Mr. Norkin refused throughout to concede his behavior was problematic (no regret demonstrated). They note that the "aggravating" factors found here would have led the Court to this severe punishment on the Rules violations alone, and that this is just another Rules violation punishment, not really a professionalism punishment. 

That may be the case. This may not be a landmark decision. Time will tell. What is is, however, is a case in which the Court makes clear again its feelings about professionalism. It is a case in which lack of professionalism is held to violate the ethics rules. It is worthy of consideration. 

All attorneys, witnesses, and judges are worthy of the respect and courtesy that marks us all as professionals. If you are not receiving that courtesy or witness discourtesy to others, I encourage you to bring it to my attention. There is no room in our little corner of the practice of law for mistreating people, and there is no need for such behavior to reach the discipline level if a reminder might remedy it. 

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