In April 2019, the Supreme Court of Florida (SCOF) rendered approval of a consent judgement in The Florida Bar v. Spradley, Case No SC18-1592. The case is instructive on several points, and worthy of discussion.
The Florida Bar instituted an investigation regarding complaints about this attorney in 2018. It made inquiries to the attorney, but she failed “to respond to investigative inquiries." As a result of that failure, the attorney was suspended on March 28, 2018. The failure to respond is itself an interesting point. Despite the attorney’s failure to respond the Bar inquiry proceeded.
In the Florida legal conduct process, a referee is appointed to hear allegations and defenses. Due process is afforded and ultimately the referee issues a report regarding the findings, legal authorities, and recommended outcome. Ultimately, in Florida, the decisions of whether and what punishment to impose rests with the Supreme Court.
This attorney was accused of responding to a motion filed in a case by opposing counsel. The responses were in the form of email. I have repeatedly noted that email is an outstanding, efficient, and effective communication tool. Unfortunately, it lacks some of the delays to which lawyers have heretofore become accustomed. In the old days, written responses were often dictated, typed by a staff member, and later provided to the attorney for signature. That delay was a burden, but also a benefit as it required time and time is often good for reflection and calming.
The email tool, and its cousin the text message, are far easier, and quicker. They are often produced by lawyers personally, quickly, and sent. Unfortunately, a great many people come to lament the content of email. An interesting scene in The Intern illustrated that remorse when the company CEO sends an email she wishes she had not. Her intern and other employees then break into her mother’s house to attempt to intercept that message before it is read. Once an email is sent, there is no retrieving it. But periodically we all get one of those "the sender wishes to recall" messages.
Returning to Spradley. In the first responsive email, the attorney labelled the subject motion a “sham.” She accused the opposing counsel of wasting her time and the adjudicator’s. She cautioned counsel that he would “not enjoy being in the same courtroom with me.” In a second email, she reiterated the “waisting [sic) my client’s money,” as well as the attorney’s time. Maybe our best guide is to never write an email you would not want your grandmother to read aloud in public?
The attorney went on to say that “your client will wish that she were able to afford to hire my [sic] rather than you.” Perhaps typos result from speed, but as likely perhaps from those tiny keyboards on mobile devices? She then devolves into a discussion of her father, noting he was a “famous world renown international environmental attorney.” She infers that she was therefore born with passion for the law, and that it runs through her veins. Some of this reminded me of Charlie Sheen and his now famous meltdown in 2012.
In another situation, the same attorney had withdrawn from a case and filed a charging lien. The judge entered an order denying that lien. That led this attorney to email the judge’s judicial assistant to express her displeasure. She referred to the judge’s treatment of her as “absurd and meritless.” She informed the assistant that the attorney would be reporting the judge and sharing the order with others.
The attorney typed this email to staff largely in capital letters (screaming). She lamented that the judge had not “practiced family law,” and had “admitted that she literally knew nothing of charging liens.” The attorney asserted that she would have prevailed if the judge “was at least somewhat competent.” The attorney alleged that the judge did not control a particular hearing, that she labelled a “sham,” in which she alleged she was “abused” by other litigants. She then threatened to air advertisements “about how” the judge “should have never been allowed to hold such an honorable position.” Judges will be wrong. When they are, move for reconsideration or seek appellate review. Insulting, threatening, or demeaning will not lead to positive results.
There were two additional complaints against the attorney, essentially related to diligence in moving client’s cases forward.
The Spradley referee found the attorney’s behavior inappropriate and violative of multiple Rules Regulating The Florida Bar. These included “competency,” “diligence,” “communication,” comments that were either “known to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge,” and “conduct . . . prejudicial to the administration of justice.”
The referee noted both aggravating and mitigating factors regarding various rules. Mitigating factors included the attorney’s “cooperative attitude toward the instant disciplinary proceedings,” and her remorsefulness. The referee cited The Florida Bar v. Norkin, 132 So. 3d 77 (Fla. 2013), in which an attorney was suspended two years for “rude and antagonistic behavior including disrupting court proceedings.” That case has become an oft-referenced touchstone in attorney discipline cases, as well as continuing education programs. The referee recommended an 18 month suspension in the Spradley case.
The referee also recommended that the attorney undergo an evaluation by Florida Lawyers Assistance, Inc. (FLA Inc.), and “abide by all recommendations made by FLA, Inc.” The referee recommended restitution in the diligence matters, and payment of the costs of the Bar’s investigation and procedure. Many think of FLA infrequently. It is there to help lawyers with issues of stress, and perhaps more should consider how FLA might benefit them.
This Spradley situation illustrates several points worthy of discussion. First, the practice of law can be stressful. Anyone who practices law and can say otherwise is indeed fortunate. There are a multitude of rules, processes, deadlines, and emotions that are intertwined in the process. Lawyers take on clients, but in the process they often take on the client's troubles, feelings, and frustrations. All of this can lead to lost sleep, anxiety, anger, and more. We have all seen the effects of the practice of law profoundly affect an attorney. We must all remain vigilant about how our own stress is affecting us.
Second, unfortunately, those who practice law are not merely victims of stress. Some are also “carriers,” and still others are the instigators of stress, anger, and frustration. It perhaps does not help that in a fair number of instances a lawyer’s financial well being, and that of the attorney’s family, are dependent upon successfully navigating a process and system that is replete with roadblocks, frustrations, complications, and opponents (some brilliant, others incompetent). People bring frustration and anger into the legal system, others spread it. It can become viral and spread unchecked. Everyone needs to be aware of symptoms and willing to confront them, or at least focus upon not spreading them.
Why is it worthy of discussion when an attorney lets loose an angry tirade at opposing counsel, a judge, or anyone else? Because, whether we admit it or not, we are all subject to human emotions, including disappointment, frustration, and anger. Can we manage it? For the most part the answer to that is yes. Can we spot our rising ire and find a way to check it. For the most part the answer is yes. But in today’s age of instant communication, we may react before we have that chance.
There are solutions. However, as the tools to react and respond are so handy, all of the solutions begin with self control. It may be that such control is elusive. So, perhaps the best tool that we have is time. Before we reach for the keyboard, or the telephone for that matter, perhaps the best salve is time. A mentor of mine once cautioned to never respond to any communication the same day. She advocated that the best advice was to always "sleep on it." That is perhaps easier said than done.
Perhaps there is catharsis in typing that response, venting the anger? Then, when you have done so, hit "save" or even "delete" instead of "send." Or, perhaps the best response to such an angry reaction would be to discuss it with a confidant, mentor, or friend. There may be relief in merely expressing the feelings and emotions that resulted from receiving someone's communication or motion. It is probable that sharing those feelings, before responding, would help one to work through the emotion.
Finally, there is the simple fact that email, texting, and even typing a letter are all less personal and detached. This was discussed by Live Science in 2012. That focus is on Internet comments (which we have all seen unfortunate examples of), but a core point is applicable here: "people tend to antagonize distant abstractions more easily than living, breathing interlocutors."
That is, simply, it is easier to be angry and perhaps outrageous when the connection is impersonal and provides detachment. Why not schedule a time to speak to opposing counsel, in person or by phone? This would provide benefits including some delay ("schedule: a time, not a spontaneous call perhaps). It would also personalize the communication (there are benefits to facial expression, to inflection, which email does not deliver). And, many believe that such interpersonal conversation is a powerful tool for understanding.
The bottom line is that stress and emotions are with us. Much like the world changing around us, there is much in the practice of law that we cannot control. We will suffer disappointment and we will be hurt. We cannot prevent or control these truths. We can only hope to affect how we react to those situations. And, to be successful at it, we need to make decisions in advance, establish practices in advance, to facilitate our calm and professional reactions when we are confronted.
In all, we will be as imperfect as everyone around us. Though we will not achieve perfection, we must nevertheless strive to avoid the lure of the instant reaction, the angry email.