Thursday, June 7, 2018

Throwback Attorney Story

Lawyers that practice in Florida workers' compensation all have their favorite stories to recount, of a trial, a witness, an opponent, or a judge. I can recall many a day cooling my heels at the "comp office" listening to such stories as we awaited our turn for a hearing. Before our electronic paradigm, lots of time was spent waiting your turn at the comp office. But, often those water-cooler stories become lost and forgotten. That is, unless the Florida Supreme Court memorializes it in an opinion. 

Almost thirty years ago (thus a "throwback"), a proceeding against a lawyer revealed and memorialized bizarre actions. In The Florida Bar v. Flinn, 575 So.2d 634 (Fla. 1991), the Court addressed activities dating back to 1986. The records of The Florida Bar reflect that Mr. Flinn was admitted to the practice of law in 1966, and so had been practicing for over 20 years at that time. 

The issues apparently began with Mr. Flinn refusing to accept being fired. Despite being discharged, he "continued to hold himself out as" counsel and "continued to interfere with the claims bill" pending before the Florida legislature. There were also findings related to his claims for cost reimbursement in that case. The findings of the referee that heard the testimony were disturbing, including dishonesty, altering a document, and more. 

But relevant to today's discussion was Mr. Flinn's representation of two workers' compensation claimants in 1986, before Judge of Compensation Claims (JCC) Tomlinson. After trial in the cause of Marie Nieto, Judge Tomlinson "denied all claims." The Court concluded that this outcome "was due to the lack of preparation, neglect and incompetence of Mr. Flinn." That year, Mr. Flinn also represented Timothy Moore before Judge Tomlinson. The outcome was not positive for Mr. Moore, and a psychiatrist involved in the case notified The Florida Bar "concerning Mr. Flinn's incompetence." 

The investigation that followed revealed evidence of "incompetence between 1986 and 1987," but the Court noted "the evidence was not limited to that time frame." It noted that
"Mr. Flinn repeatedly failed to properly prepare cases, failed to ask proper questions and to address proper issues, continued to ramble and to make little sense, which caused inordinate delays in proceedings."
The Bar proceedings included testimony from other workers' compensation attorneys, who described "Mr. Flinn's incompetence in the area of worker's compensation law," as well as the testimony of four of the five Judges of Compensation Claims in Miami District (John Tomlinson, William Johnson, Judith Nelson and Alan Kuker). The referee found the testimony of incompetence consistent with the manner in which Mr. Flinn handled his own defense of the Bar complaints. 

The referee found the following behavior examples in the defense of the complaint pertinent:
created unnecessary delays, . . . asking repeated irrelevant and immaterial questions; by asking improper questions . . .; by rambling without any valid reason; . . . by attempting to introduce volumes of irrelevant documents into evidence; by filing what can only be characterized as bizarre motions . . . by filing a written closing argument that rambles and makes little sense; . . . and by filing irrelevant documents that do nothing but clutter the file.
Actions, speak louder than words in many contexts. But it the process and challenges of litigation, actions and activities engaged by lawyers perhaps are the best indicia of competence. I see a fair amount of irrelevant documents and rambling pleadings. I recently read a 20+ page document, the substance of which could have easily fit in 2 pages. It was a prime example of repetition, accusation, and innuendo. It was unprofessional and it reminded me of Mr. Flinn. 

The referee's most critical finding regarding Mr. Flinn, regarding his efforts to defend himself against the Bar complaint was
"If this were a criminal proceeding and Mr. Flinn were counsel for the accused, and if he would have represented the accused in the same manner that he represented himself, any conviction would have to be set aside for ineffective assistance of counsel."
But, the story then takes a more bizarre turn. Mr. Flinn also alleged that "a conspiracy or many conspiracies" were underway against him. He apparently believed the Miami judges and others were out to get him. The evidence established that the Miami Judges of Compensation Claims had recused themselves (declined to hear) from cases with Mr. Flinn, and those recusals might have fed his perception of persecution.  

In one cited instance, Mr. Flinn failed to appear at trial, instead leaving an affidavit on the JCC's bench accusing the JCC of prejudice and claiming the injured worker "could not receive a fair and unbiased hearing." It was not a motion to disqualify, back to the competency allegations, apparently just an affidavit of accusation.

Mr. Flinn also accused one of the JCCs of bribery. The referee hearing the Bar complaint concluded these were false accusations. Further, the referee found that "clear and convincing evidence" established Mr. Flinn, "falsely and knowingly accused" four JCCs "of bribery and corruption." The referee noted that "there was not one scintilla of evidence presented to support any allegation of bribery or corruption on the part of any worker's compensation judges." The referee concluded that those accusations were made "for base motives."

Lots of lawyers talk about judges. We have all heard it. Maybe there is upset over an outcome, a disagreement over procedure, a perception of bias? But when those comments are made, are they accusatory? Are they factual? And, what is the motive behind making them?

The referee recommended disbarment, but not without considerable reflection. S/he wrote of struggling with that recommendation and of daily consideration of the case. S/he noted "it hurts to write negatively about an attorney, but it hurts more to think that conduct such as that demonstrated by Mr. Flinn can be tolerated." That is a sentiment with which I can identify. When lawyers bring motions and raise issues of each other's conduct, judges are asked sometimes to "write negatively about an attorney," and that always hurts. 

The Supreme Court found the referee's findings "fully supported in this record by clear and convincing evidence." It held Mr. Flinn "guilty of violating the Disciplinary Rules of the Code of Professional Responsibility and the Rules Regulating The Florida Bar," and disbarred him.

I never new Mr. Flinn. However, this case comes to my mind periodically. When I hear allegations that the system is "out to get (someone)," I am reminded of Mr. Flinn's conspiracy allegations. When I hear allegations that a particular judge was not fair, I wonder if such statements might rise to the level of the false allegations made by Mr. Flinn. When I read rambling pleadings, and senseless exchanges between counsel, I think of attorney competence and professionalism; and, I think of Mr. Flinn. When I hear attorneys disparaging and degrading each other in public statements and proceedings (Would you Believe), I think of Mr. Flinn. 

In short, this disbarment proceeding demonstrates a parade of troubling behavior. That parade ended in disbarment, but we need to remember that such parades also start somewhere. Unprofessional behavior, "base motives," and discipline tend to begin with little things: slips, mistakes, and likely stress. The path to disbarment, in my opinion, is not a sudden and unexpected plummet from a precipice, but a slow and gradual descent down a slope. And, I think it is both possible and practical for professionals to notice when one of us is starting such a descent. 

When such a descent begins, it may be because of stress, dependency, or worse. The Florida Bar has refocused us all recently on mental health and professionalism. When we see behavior that may be the start of a descent, we owe it to everyone to act. There is help, see How Can Lawyers Assist Each Other. There are those willing to help. 

Over the years, I have made a few calls that started with "I am hearing from some attorneys that you seem stressed, is everything OK?" That kind of call is perhaps easier for me than for others. I do not have to practice with that lawyer, and it is rare that they might even appear before me. I welcome those referrals because those calls tell me two things: (1) you are paying attention to your peers, and (2) you care enough to do something. 

Several of those calls have seemingly been cathartic, or at least helpful. Some are glad to hear about perceptions, and seemingly just as glad someone cared enough about them to say something. I like to think that I have assisted a few merely by being able to listen to what is stressing them. Perhaps for most of us, a little compassion, patience, and understanding may go a long way.  

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