Zealous Representation or Rude and Discourteous Misconduct? Where Is the Line?
Joseph A. Corsmeier
As lawyers, many of us understand that we should zealously represent our clients. While that understanding is correct, the Bar rules and the Supreme Court of Florida have repeatedly stated that lawyers must act both professionally and ethically during the course of that representation, both in and out of the courtroom.
The Rules Regulating The Florida Bar do not use the word “zealous”; however, the Preamble to Chapter 4 of the Rules states, in part, as follows:
As a representative of clients, a lawyer performs various functions. As an adviser, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.
A lawyer's responsibilities as a representative of clients, an officer of the legal system, and a public citizen are usually harmonious. Zealous advocacy is not inconsistent with justice.
The Supreme Court of Florida has addressed zealous advocacy/ethical misconduct in a courtroom context and has attempted to define the parameters of zealous conduct; the gray area lies between the two extremes where lawyer conduct may be considered unprofessional but not a violation the Bar Rules.
In The Florida Bar v. Martocci, 791 So.2d 1074 (Fla. 2001), the Florida Supreme Court issued a public reprimand and imposed a two year probation on an attorney who engaged in unprofessional and abusive conduct for unethical comments and behavior toward opposing counsel, the opposing party, and the opposing party's family during depositions, in court, and outside the courtroom during breaks in the proceedings. The attorney was representing the husband in a bitter divorce, child custody, and child dependency matter. As a condition of the probation, the attorney was required to be evaluated by Florida Lawyers Assistance, Inc. for possible anger management skills training or mental health assistance or both.
In The Florida Bar v. Morgan, 938 So.2d 496 (Fla.2006), the Court suspended an attorney for ninety-one days for courtroom misconduct. The attorney had been publicly reprimanded and suspended for ten days on two prior occasions. The attorney refused to acknowledge the wrongful nature of his conduct but the referee found (and the Supreme Court adopted) the mitigating factor of good character and reputation, including the provision of pro bono legal services, serving as a role model for an assistant state attorney, and being held in high esteem as an excellent and passionate advocate by two judges and an attorney.
In The Florida Bar v. Abramson, 3 So.3d 964 (Fla. 2009), the attorney was found to have been repeatedly disrespectful and rude to the trial judge at a hearing and was suspended for ninety-one days. The Supreme Court opinion stated that:
Abramson's misconduct was egregious. He was disrespectful and confrontational with the presiding judge in an ongoing courtroom proceeding in the presence of the pool of prospective jurors in a criminal case. Regardless of any perceived provocation by the judge, Abramson responded inappropriately by engaging in a protracted challenge to the court's authority. His ethical alternative, if he believed the trial court had erred, was by writ or appeal. He has also been publicly reprimanded twice before for serious misconduct.
See also The Florida Bar v. Wasserman, 675 So. 2d 103 (Fla. 1996) (two six-month consecutive suspensions on an attorney in his fifth discipline case before the Court where the attorney had an angry outburst in court after an unfavorable ruling and expressed contempt for the court, stated in the hallway outside the courtroom that he would counsel his client to disobey the court's ruling, and used profane language over the telephone to a judge's judicial assistant); The Florida Bar v. Price, 632 So.2d 69 (Fla.1994) (ninety-one day suspension for appearing in court under the influence of alcohol and behaving in a hostile, abrasive, and belligerent; reinstatement conditioned on ability to show that satisfactorily completion of an evaluation and course of treatment for substance abuse approved by the Bar.
Attorneys should be on notice from a review of the above cited cases and recent articles by current and former justices of the Supreme Court of Florida that the Court (and The Florida Bar) will be far less tolerant of rude, belligerent, and disrespectful behavior, regardless of whether it is couched in terms of “zealous advocacy” on behalf of a client.
Joseph A. Corsmeier is a Martindale-Hubbell "AV" rated attorney who practices in Clearwater, Florida. His practice consists primarily of the defense of attorneys and professionals in disciplinary and admission matters, expert analysis and opinion and court testimony on ethics and liability issue, and estate planning. Mr. Corsmeier is available for retention to provide attorney ethics and professionalism advices, provide expert opinions on ethics and malpractice issues, assist attorneys to insure compliance with the Rules Regulating The Florida Bar, and defend Bar applicants before the Florida Board of Bar Examiners.
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