PBCBA BAR BULLETINS pbcba_bulletin_feb 2018 | Page 18

PROFESSIONALISM C o r n e r A New Model For Professionalism Peer Review And Discipline In Federal Court in the investigation are not admissible held, at any such hearing. If there is a hearing as a collateral attack for incompetency of held before the Committee, the attorney DAVID P. ACKERMAN CHRISTINE B. GARDNER counsel in a criminal case. The information may appear, be represented by counsel, provided by the attorney is given the same present witnesses and other evidence, and The United States District Court for the level of privilege as the attorney/client cross examine witnesses brought to testify Southern District of Florida recently privilege. against the attorney. The Committee itself implemented a new local rule imposing may call the accused attorney and ask a more robust peer review function for The Committee’s second function questions unless the attorney asserts a attorney conduct. This well-thought-out is a Florida Bar-like disciplinary process. privilege or right properly available to the function is set forth in Rule 6 of the Southern The procedures are similar to the peer attorney under applicable federal or state District’s Rules Governing the Admission, review function, in that a judge refers a law. At the conclusion of the hearing, the Practice, Peer Review, and Discipline of lawyer to the Committee. The Committee Committee makes a complete report and Attorneys, effective December 1, 2017. Rule then assigns a subcommittee to conduct recommendation. The Committee may 6 provides for an Ad Hoc Committee on an investigation. After the investigation is recommend the same kinds of discipline Attorney Admissions, Peer Review and concluded, the subcommittee reports back the Florida Bar may impose, including Attorney Grievance (the “Committee”). The to the Committee. The Committee then disbarment, suspension, reprimand, Committee consists of lawyers who practice makes a recommendation to the chief judge. monetary sanction and any other sanction within the Southern District, appointed by At this point, the procedure diverges from the Court may deem appropriate. Notably, the Chief Judge for renewable three-year the peer review function. If the Committee the Committee may also recommend terms. The Committee has two areas of determines that probable cause exists to removal of the attorney from the Southern jurisdiction: (1) a peer review function and support a finding that the attorney has District of Florida’s roster of attorneys (2) a disciplinary process. violated a rule of professional conduct, it eligible to practice before the Court. Upon gives the attorney notice and opportunity to receipt of the Committee’s report and The peer review function is intended “to be heard, both in writing, and if a hearing is recommendation, the Court issues to the determine whether individual attorneys (continued on page 21) are failing to perform to an adequate level of competence necessary to protect the interests of their clients.” S.D. Fla. Local R. W. Jay Hunston, Jr. 6(b)(1). Under this function, the Committee reviews referrals about an attorney’s Mediator/Arbitrator competence. This can include what we think of as unprofessional conduct. (Often, a lawyer who is behaving unprofessionally Since 2001, limiting his may be displaying a lack of competence. practice to all forms of effective In other words, bad lawyering is frequently dispute resolution, including mediation, arbitration, special at the root of unprofessional behavior). In master, and private judging this regard, the peer review function of the services. Committee works a lot like the Palm Beach County Bar Association Professionalism Panel (the “Panel”). A judge can make a referral, although, unlike our Panel, lawyers may not make referrals. The Committee • J.D., Stetson Univ. College of Law • Fla. Bar Bd. Cert. Civil Trial Lawyer, 1983-2003 then sets up a subcommittee to investigate • Fla. Cert. Circuit Civil, Appellate & Family Mediator the referral. That subcommittee, after its • Member, AAA Roster of Neutrals for Commercial and investigation is completed, reports back Construction Arbitration and Mediation to the Committee. The Committee can • Qualified Fla. Arbitrator then recommend to the judge a number of • FINRA Approved Mediator remedial steps, including the assignment of • Statewide Per Diem Rate Available Upon Request • Hourly Rates Available (No Charge for Travel Time Within 15th, a mentor, counseling from the Florida Bar’s 19th, and 17th Circuits) Practice Resource Institute, mandatory P.O. Box 508, Stuart, FL 34995 attendance at a continuing legal education [phone]; [phone] - Office seminar or some other remedial program. [phone] - Fax Like our local Panel, the matter is kept Email: [email protected] Website/Online Calendar: www.hunstonadr.com confidential. No statement made by the attorney to the Committee shall be admissible in any action for malpractice against the attorney and the Committee’s files are not admissible in such proceedings. PBCBA BAR BULLETIN 18 Likewise, statements made by the attorney