The Codification of Professionalism: Can You Sanction Lawyers into Being Nice?

61 Pages Posted: 20 Aug 2015 Last revised: 21 Aug 2015

See all articles by Debra Moss Vollweiler

Debra Moss Vollweiler

Nova Southeastern University - Shepard Broad College of Law

Date Written: August 18, 2015

Abstract

On October 31, 2013, the Florida Supreme Court in The Florida Bar v. Norkin made it clear that “it wants the trend of escalating incivility among lawyers to stop.” With that decision, in which a lawyer was suspended and publicly reprimanded for his behavior, the court urged “Members of the Florida Bar, law professors, and law students should study” this case “as a glaring example of unprofessional behavior.” This article heeds the courts’ directive to do so, but also places it in the context of the movement to enhance professionalism statewide.

At the heart of the professionalism movement is a conflict — between the idea that professionalism is an aspirational goal of behavior and that it is one that can be legislated with penalties. When professionalism standards are aspirational, professionalism codes are not a basis of judicially imposed conduct. In contrast, ethical rules governing attorneys do carry sanctioning behavior in an attorney discipline system. Confusion can often lie in the fact that are some aspects of poor professional behavior that cross over into conduct violations governed by the discipline system, and thus are the subject of sanctioning cases. That intersection of behavior, aspirations and rule violations are the focus of this examination into professionalism.

In recent years, the Florida Bar has moved to stating that “professionalism is expected” and not aspirational. This shift has been evidenced by revisions of oaths, a proliferation of information disseminated, recent discipline cases, a Supreme Court order establishing local professionalism regulation, and other actions, all of which will be discussed in this article. There exists an emerging message about the importance of professionalism from all aspects of the Bench and Bar.

This article examines the status of governing professionalism in Florida. Part II of this article discusses the efforts to define professionalism. Part III gives a brief summary of the attorney discipline system, followed by a review of how some recent cases shaped the Florida Supreme Court’s message on professionalism. Part IV of this article will discuss the broader approach with dealing with professionalism as ordered by the Florida Supreme court statewide, including data and details of the new Local Professionalism Panels, and whether these efforts have been and can be successful, while exploring the nexus between governing professionalism and attorney discipline. Part V suggests what more can be done and draws some conclusions as we move forward.

Suggested Citation

Vollweiler, Debra Moss, The Codification of Professionalism: Can You Sanction Lawyers into Being Nice? (August 18, 2015). Available at SSRN: https://ssrn.com/abstract=2647006 or http://dx.doi.org/10.2139/ssrn.2647006

Debra Moss Vollweiler (Contact Author)

Nova Southeastern University - Shepard Broad College of Law ( email )

3305 College Avenue
Ft. Lauderdale, FL 33314
United States

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