No: 12-7747 _______________________

IN THE SUPREME COURT OF THE UNITED STATES ____________________

NEIL J. GILLESPIE, ET AL, - PETITIONERS vs. THIRTEENTH JUDICIAL CIRCUIT, FLORIDA, ET AL, - RESPONDENTS ________________________

PETITIONERS SUPPLEMENTAL BRIEF IN PETITION NO. 12-7747 FOR WRIT OF CERTIORARI ____________________ Submitted February 13, 2013 by Neil J. Gillespie, the petitioner appearing pro se, a nonlawyer, adult man disabled with physical and mental impairments. 8092 SW 115th Loop Ocala, Florida 34481 Telephone: (352) 854-7807 Email: neilgillespie@mfi.net

LIST OF PARTIES All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows: ___________________ U.S. Court of Appeals for the Eleventh Circuit, no. 12-11213 District Court no: 5:10-cv-00503-WTH-TBS Civil rights and disability law. Misuse and denial of justice under the color of law. Plaintiff: (1) Neil J. Gillespie Defendants: (10 + 5 individually) Thirteenth Judicial Circuit, Florida Claudia Rickert Isom, Circuit Judge, and individually (Fla. Bar ID 200042) James M. Barton, II, Circuit Judge, and individually (Fla. Bar ID 189239) Martha J. Cook, Circuit Judge, and individually (Fla. Bar ID 242640) David A. Rowland, Court Counsel, and individually (Fla. Bar ID 861987) Gonzalo B. Casares, ADA Coordinator, and individually *Barker, Rodems & Cook, P.A. **Ryan Christopher Rodems, Attorney at Law (Fla. Bar ID: 947652) The Law Office of Robert W. Bauer, P.A. Robert W. Bauer, Attorney at Law (Fla. Bar ID: 11058) * ** NO PARTY INTEREST, see Petitioners Rule 12.6 Notice to the Clerk of the Court, submitted January 22, 2013 (Nominal parties) ___________________ U.S. Court of Appeals for the Eleventh Circuit, no. 12-11028 District Court no: 5:11-cv-00539-WTH-TBS Civil rights and disability law, civil RICO, antitrust, commerce, estate claims. Misuse and denial of justice under the color of law. Plaintiffs: (2) Neil J. Gillespie Estate of Penelope Gillespie (deceased) Defendants: (4 + 1 individually) Thirteenth Judicial Circuit, Florida James M. Barton, II, Circuit Court Judge, and individually (Fla. Bar ID 189239) The Law Office of Robert W. Bauer, P.A. Robert W. Bauer, Attorney at Law (Fla. Bar ID: 11058)

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TABLE OF CONTENTS LIST OF PARTIES ......................................................................................................................ii TABLE OF CONTENTS.............................................................................................................iii TABLE OF AUTHORITIES CITED............................................................................................iv PETITIONERS SUPPLEMENTAL BRIEF.................................................................................1 INTERVENING MATTERS NOT AVAILABLE AT THE TIME OF THE PETITION..........1-4 Does a Senior Status Federal Judge have Article III authority? Intervening Matters And Florida Bar Complaints. Local Discipline Components And The Hawkins Report. THE LAWYER-JUDGE BIAS IN THE AMERICAN LEGAL SYSTEM...................................5 NUMQUAM DIXERUNT LEGEM NOBIS OBSERVANDAM ESSE.......................................6 THE SECRET LIFE OF JUDGES.................................................................................................7 LOCAL DISCIPLINE COMPONENTS - FATAL DEFECT IN FLORIDA DISCIPLINE..........8 THE FLORIDA BAR HAKINS REPORT - MAY 2012..............................................................11 CONCLUSION..............................................................................................................................14

INDEX TO APPENDIX APPENDIX A.............Results of the Survey on The Florida Bars Disciplinary System, Appendix E to The Florida Bar Hawkins Report, May 2012..................end

INDEX TO SEPARATE VOLUME APPENDICES SEPARATE VOLUME APPENDIX THE FLORIDA BAR HAWKINS REPORT - MAY 2012 SEPARATE VOLUME APPENDIX Are Senior Judges Unconstitutional? 92 Cornell Law Review 453 (2007) SEPARATE VOLUME APPENDIX Appendices 1 through 13

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TABLE OF AUTHORITIES CITED AUTHORITIES The Florida Bar v. Winn, 208 So.2d 809 (Fla. 1968) The Florida Bar Hawkins Report, May 2012 Hawkins Commission on Review of Discipline System, May 2012, Report and Recommendations, A Report and Analysis of Targeted Aspects of the Attorney Discipline System The American Bar Association (ABA) McKay Report Lawyer Regulation for A New Century: Report of the Commission on Evaluation of Disciplinary Enforcement. February 1992 The American Bar Association (ABA) Clark Report Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement, June 1970 Hon. David R. Stras, Ryan W. Scott, Are Senior Judges Unconstitutional? 92 Cornell Law Review 453 (2007) Hon. Dennis Jacobs, The Secret Life of Judges 75 Fordham L. Rev. 2855 (2007). Benjamin H. Barton, The Lawyer-Judge Bias in the American Legal System Professor of Law, University of Tennessee College of Law Publisher: Cambridge University Press (December 31, 2010), ISBN-13: 978-1107004757. Interview of Prof. Barton by Glenn Reynolds of InstaVision Uploaded January 27, 2011 on YouTube at http://youtu.be/Hbs_3lePAjE David W. Marston, Malice Aforethought: How Lawyers Use Our Secret Rules to Get Rich, Get Sex, Get Even...and Get Away with It Publisher: William Morrow & Co., (March 1991), copy provided. ISBN-13: 978-0688077051 Rules Regulating The Florida Bar Discipline Duties, Supreme Court of Florida, Board of Governors 6 PAGE NUMBER 3 11-15

3, 8-10, 11,14

10

1, 14-15

throughout

Rule 31.1. Privilege to practice A license to practice law confers no vested right to the holder thereof but is a conditional privilege that is revocable for cause.

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A lawyer should view his work not as mere money getting but as service of highest order; not as a mere occupation but as a ministry. State ex rel. Florida Bar v. Dawson, 111 So.2d 427 (1959). Rule 3-1.2 Generally The Supreme Court of Florida has the inherent power and duty to prescribe standards of conduct for lawyers, to determine what constitutes grounds for discipline of lawyers, to discipline for cause attorneys admitted to practice law in Florida, and to revoke the license of every lawyer whose unfitness to practice law has been duly established. Rule 33.1 Supreme Court of Florida; Disciplinary Agencies The exclusive jurisdiction of the Supreme Court of Florida over the discipline of persons admitted to the practice of law shall be administered in the following manner subject to the supervision and review of the court. The following entities are hereby designated as agencies of the Supreme Court of Florida for this purpose and with the following responsibilities, jurisdiction, and powers. The board of governors, grievance committees, and referees shall have such jurisdiction and powers as are necessary to conduct the proper and speedy disposition of any investigation or cause, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of witnesses, and to order the production of books, records, or other documentary evidence. Each member of such agencies has power to administer oaths and affirmations to witnesses in any matter within the jurisdiction of the agency. Where state bar and its staff counsel are designated as agencies of Supreme Court for purpose of administering its jurisdiction to regulate admission of persons to practice of law and discipline of persons admitted, state bar is an arm and part of judiciary, one of three co-equal branches of state government; thus, state bar and its agents acting within the scope of their office are protected from liability for publication of defamatory matter by absolute privilege. Mueller v. The Florida Bar, App. 4 Dist., 390 So.2d 449 (1980). The Supreme Court alone has power to discipline attorneys by grant of exclusive jurisdiction. Pantori v. Stephenson, App. 5 Dist., 384 So.2d 1357 (1980). Power to render ultimate judgment in attorneys disciplinary proceeding rests in the Supreme Court. The Florida Bar v. Abramson, 199 So.2d 457 (1967). Rule 33.2. Board of governors of The Florida Bar (a) Responsibility of Board. The board is assigned the responsibility of maintaining high ethical standards among the members of The Florida Bar. The board shall supervise and conduct disciplinary proceedings in accordance with the provisions of these rules. Rule 34.1. Notice and Knowledge of Rules; Jurisdiction Over Attorneys of Other States and Foreign Countries Every member of The Florida Bar and every attorney of another state or foreign country who provides or offers to provide any legal services in this state is within the jurisdiction and subject to the disciplinary authority of this court and its agencies under this rule and is charged with notice and held to know the provisions of this rule and the standards of ethical and professional conduct prescribed by this court. Jurisdiction over an attorney of v

another state who is not a member of The Florida Bar shall be limited to conduct as an attorney in relation to the business for which the attorney was permitted to practice in this state and the privilege in the future to practice law in the state of Florida. Rule 34.2. Rules of Professional Conduct Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline. Attorney may not hide behind clients instructions in order to perpetrate fraud against third party. The Florida Bar v. Feige, 596 So.2d 433 (1992). Attorney found to have violated disciplinary rules by assisting client in conduct known to be fraudulent, failing to reveal fraud to affected person, accepting employment where his professional judgment will be affected by his own personal interest, and accepting employment when he is witness in pending litigation, will be suspended from practice of law for two years. The Florida Bar v. Feige, 596 So.2d 433 (1992). Bylaw 23.1. Generally The board of governors shall be the governing body of The Florida Bar. The board of governors shall have the power and duty to administer the Rules Regulating The Florida Bar, including the power to employ necessary personnel. Subject to the authority of the Supreme Court of Florida, the board of governors, as the governing body of The Florida Bar, shall be vested with exclusive power and authority to formulate, fix, determine, and adopt matters of policy concerning the activities, affairs, or organization of The Florida Bar. The board of governors shall be charged with the duty and responsibility of enforcing and carrying into effect the provisions of the Rules Regulating The Florida Bar and the accomplishment of the aims and purposes of The Florida Bar. The board of governors shall direct the manner in which all funds of The Florida Bar are disbursed and the purposes therefor and shall adopt and approve a budget for each fiscal year. The board of governors shall perform all other duties imposed under the Rules Regulating The Florida Bar and shall have full power to exercise such functions as may be necessary, expedient, or incidental to the full exercise of any powers bestowed upon the board of governors by said rules or any amendment thereto or by this chapter. Bylaw 29.1. Authority of board of governors In order to accomplish the purposes of The Florida Bar and implement the Rules Regulating The Florida Bar, including this chapter, the board of governors shall have the power and authority to establish policies and rules of procedure on the subjects and in the manner provided in this rule. Bylaw 29.4. Ethics (a) Rules of Procedure. The board of governors shall adopt rules of procedure governing the manner in which opinions on professional ethics may be solicited by members of The Florida Bar, issued by the staff of The Florida Bar or by the professional ethics committee, circulated or published by the staff of The Florida Bar or by the professional ethics committee, and appealed to the board of governors of The Florida Bar.

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Rule 13.1. Composition The membership of The Florida Bar shall be composed of all persons who are admitted by the Supreme Court of Florida to the practice of law in this state and who maintain their membership pursuant to these rules. Right to practice law is not a constitutionally protected privilege or immunity. State ex rel. Florida Bar v. Sperry, 140 So.2d 587, 133 U.S.P.Q. 157 (1962), certiorari granted 83 S.Ct. 148, 371 U.S. 875, 9 L.Ed.2d 113, 135 U.S.P.Q. 503, vacated 83 S.Ct. 1322, 373 U.S. 379, 10 L.Ed.2d 428, 137 U.S.P.Q. 578, on remand 159 So.2d 229. Rule 14.2. Authority; supervision (a) Authority and Responsibility. The board of governors shall have the authority and responsibility to govern and administer The Florida Bar and to take such action as it may consider necessary to accomplish the purposes of The Florida Bar, subject always to the direction and supervision of the Supreme Court of Florida. Rule 18.1. Responsibility of board of governors Among its other duties, the board of governors is charged with the responsibility of enforcing the Rules of Discipline and the Rules of Professional Conduct. Rule 110.1. Compliance All members of The Florida Bar shall comply with the terms and the intent of the Rules of Professional Conduct as established and amended by this court. Attorney is an officer of the court and an essential component of the administration of justice, and, as such, his conduct is subject to judicial supervision and scrutiny. State ex rel. Florida Bar v. Evans, 94 So.2d 730 (1957). Florida Supreme Court has power to authorize investigations of professional conduct for purpose of determining whether formal charges shall be made against an attorney. Swanson v. The Florida Bar, 1967, 381 F.2d 730, certiorari denied 88 S.Ct. 468, 389 U.S. 972, 19 L.Ed.2d 463.

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PETITIONERS SUPPLEMENTAL BRIEF Just as war is too important to leave to the generals, reform of the justice system is too important to be left to lawyers and judges. - U.S. Supreme Court Chief Justice William Rehnquist, as quoted by the American Bar Association, Coalition for Justice __________________________________ Appearing pro se, Petitioner Neil J. Gillespie (Gillespie), pursuant to Rule 15.8 of this Court, calls attention to several intervening matters with the Florida Bar not available at the time of the Petition and hereby submits Petitioners Supplemental Brief1. The Petition argues the Hon. Wm. Terrell Hodges, an Article III Federal Judge, Senior Status, relinquished the judicial power of the United States to Mr. Rodems, a Florida lawyer in private practice. But there is another issue: Do federal judges have authority under Article III once they elect and take senior status? The Hon. David R. Stras and Ryan W. Scott suggest no, see Are Senior Judges Unconstitutional? 92 Cornell Law Review 453 (2007). This issue is another challenge to Article III judicial authority, after the corrupting power and influence of a rival to the judicial power of the United States called The Florida Bar.

Not all intervening matters are presented here; additional intervening matters include: The Florida Judicial Qualifications Commission (JQC) dismissed January 24, 2013 Docket No. 12554 (No. 10495), Gillespies complaint against Florida Judge Martha J. Cook, a Respondent in this Petition. The intervening issues therein require a separate supplemental brief. Notice was given February 6, 2013 by Mr. Castagliuolo to Florida Bar Counsel Leonard Clark, during an ethics inquiry of Mr. Castagliuolo, of a proposed whistleblower complaint by Mr. Castagliuolo to the Social Security Administration, presumably related to Gillespies disability. The intervening issues therein require a separate supplemental brief. The death January 11, 2013 of Aaron Swartz, a depressed computer wiz and Internet activist who hanged himself amid government bullying during a federal prosecution. Swartzs father blamed the U.S. government for his sons suicide in a eulogy: Aaron did not commit suicide he was killed by the government. And [the Massachusetts Institute of Technology] betrayed all its basic principles in helping the feds, said grieving dad Robert Swartz. This Petition also concerns the wrongful death of Gillespies Mother related to civil litigation. The intervening issues therein require a separate supplemental brief. A foreclosure lawsuit filed in Florida state court January 9, 2013 on Gillespies home shows attorney misconduct, and was removed to federal court February 4, 2013, see Reverse Mortgage Solutions, Inc. v. Neil J. Gillespie etc, et al., case no. 5:13-cv-58-oc-10PRL, U.S. District Court, Middle District, Florida, Ocala Division. Gillespies worsening financial condition is relevant to his motion to proceed in forma pauperis in this Petition. The intervening issues therein require a separate supplemental brief.

Gillespie believes this Supplemental Brief is appropriate because no party at interest has filed a Response to the Petition, or submitted a Waiver. The only appearance is by a nominal Respondent, Ryan Christopher Rodems, for his nominal Respondent law firm, Barker, Rodems & Cook, P.A. See Petitioners Rule 12.6 Notice to the Clerk of the Court of Party Interest. Unfortunately, Mr. Rodems engaged in conduct unbecoming a member of the Bar of this Court by attaching a harassing note to his Waiver. See Petitioners Verified Rule 8 Notice of Conduct Unbecoming a Member of the Bar of this Court. Intervening Florida Bar Matters for this Supplemental Brief Affecting Question Presented No. 4: Does the Supreme Court have Pendent Jurisdiction? Bar Counsel Annemarie Craft informed Gillespie by letter January 7, 2013 of its decision to open File No. 2013-00,540 (8B) on Gillespies RFA No. 13-7675 complaint against his former attorney, Respondent Robert W. Bauer. (Appendix 2). Previously the Florida Bar told Gillespie it would not consider his complaint as written. (Petition, page 21). Ms. Craft did not respond to Gillespies letter January 10, 2013 for an explanation for the change. (Appendix 3). Ms. Crafts correspondence included a letter to Mr. Bauer, and a Notice of Grievance Procedures that states at paragraph 4 The grievance committee is the Bar's "grand jury." (Appendix 2). However the Bars grievance committee bears little resemblance to an actual grand jury, and is thus misleading. Notice of this misnomer of the Bars grand jury appears in the trial court record in 5:10-cv-00503, Doc. 58-1, at page ID 1547, Gillespies email to James Watson, Chief Branch Discipline Counsel for the Tallahassee Branch Office. (Appendix 4). An actual grand jury consists of 16-23 disinterested persons who consider testimony given under oath in a matter, issue a report, bill or presentment that is signed by all the members, and which is filed with the clerk of the court, and is generally a public record. In contrast, the Bars grievance committee is a parody of a grand jury, a local discipline component, and may consist of five lawyers, often friends and cronies of the subject lawyer, 2

who consider hearsay and unworn testimony, all of which is confidential unless there is a rare finding of probable cause. The ABA McKay Report found Local components, such as local bar investigative committees, foster cronyism as well as prejudice against unpopular respondents. Respondent Mr. Bauer wrote Ms. Craft January 21, 2013, in essence: (Appendix 5) This letter is to memorialize our telephone conversation of January 15, 2013. In that conversation, I requested a copy of Mr. Wilhelm's October 9, 2012 letter to Mr. Gillespie. Additionally, I requested an additional 20 days to respond to the Complaint. Mr. Bauers response was due January 22, 2013; a 20-day extension ended February 11, 2013. Gillespie is not aware of any timely response by Mr. Bauer to the Florida Bar. Ultimately Mr. Bauers response is meaningless. Even if the complaint goes to a local discipline component grievance committee, Bauers friends and cronies will give him a pass. Gillespies complaint is the second against Mr. Bauer, who charged over $31,000 in legal fees for litigating Gillespie v. Barker, Rodems & Cook, P.A., et al., 05-CA-7205, Hillsborough County, Florida. Mr. Bauers representation was Not Competent (Rule 4-1.1) and Not Diligent (Rule 4-1.3). After the representation Mr. Bauer and Mr. Rodems collaborated to undermine Gillespies Bar complaint against Bauer. Mr. Bauer and Mr. Rodems then collaborated to undermine Gillespies civil litigation against Bauer, and force a settlement beneficial to Bauer. This collaboration leaves no consumer remedy for fee disputes. Bar Counsel Shanell M. Schuyler informed Gillespie September 15, 2010 as follows: The Supreme Court of Florida addressed the dilemma of instituting disciplinary proceedings against attorneys in cases where clients are disputing the reasonableness of the fees charged in the case of TFB v. Winn, 208 So.2d 809 (Fla. 1968). In Winn, the Court held that controversies concerning the reasonableness of fees charged to and paid by clients are matters which by the very nature of the controversy should be left to the civil courts in proper proceedings for determination. "What may be a reasonable fee in one area of the State may be unreasonable in another and this Court can take judicial knowledge of the fact that the opinions of reputable lawyers concerning what constitutes a reasonable fee in any given situation often are as far apart as the poles." TFB v. Winn.

Given the above, there is no lawful remedy to resolve Mr. Bauers professional misconduct or fee dispute. As this Petition shows, civil litigation against an attorney over fees is futile. Intervening Florida Bar Matters for this Supplemental Brief Misconduct of Nominal Respondent Ryan Christopher Rodems - No Remedy Available Misconduct of Eugene P. Castagliuolo - No Remedy Available Bar Counsel Leonard did not respond to Gillespies request for records in his two complaints in the Tampa Brach Office against Mr. Rodems and Mr. Castagliuolo. (Appendix 6). However it appears the complaints will be dismissed per Mr. Castagliuolos Feb-06-13 email. ACAP, the Attorney Consumer Assistance Program, has not responded to Gillespies complaint against Mr. Rodems, submitted to this Court January 22, 2013 under Rule 8. Intervening Florida Bar Matters for this Supplemental Brief Misconduct of Catherine Barbara Chapman - No Remedy Available ACAP has not responded to Gillespies complaint against Catherine Barbara Chapman for failing to report Mr. Rodems misconduct of representing the State of Florida in federal litigation, a violation that benefited her client Mr. Bauer. The complaint of January 18, 2013 appears at Appendix 7, and alleges violation of Rule 4-8.3, Reporting Professional Misconduct. Duty and Authority to Discipline Attorneys: The Rules Regulating The Florida Bar Rule 33.1 Supreme Court of Florida; Disciplinary Agencies The exclusive jurisdiction of the Supreme Court of Florida over the discipline of persons admitted to the practice of law shall be administered in the following manner subject to the supervision and review of the court. The following entities are hereby designated as agencies of the Supreme Court of Florida for this purpose and with the following responsibilities, jurisdiction, and powers. The board of governors, grievance committees, and referees shall have such jurisdiction and powers as are necessary to conduct the proper and speedy disposition of any investigation or cause, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of witnesses, and to order the production of books, records, or other documentary evidence. Each member of such agencies has power to administer oaths and affirmations to witnesses in any matter within the jurisdiction of the agency. The Table of Authorities Cited sets out Rules Regulating The Florida Bar pertaining to Discipline Duties of the Supreme Court of Florida, the Florida Bar and Board of Governors. 4

THE LAWYER-JUDGE BIAS IN THE AMERICAN LEGAL SYSTEM Law Professor Benjamin H. Barton, author of The Lawyer-Judge Bias In The American Legal System, writes that virtually all American judges are former lawyers, a shared background that results in the lawyer-judge bias. Prof. Barton argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law. Prof. Barton discussed his thesis in an interview with Glenn Reynolds, and said regular people who are not lawyers find it patently obvious that judges favor lawyers. Lawyers are the only American profession to be truly and completely self-regulated. State supreme courts govern the regulation of lawyers in every state in the union, often as a result of state supreme court decisions claiming an "inherent authority" to govern the legal profession. In contrast, state legislatures control the regulation of every other profession. (p. 16) The Florida Supreme Court has taken its regulatory authority and delegated it to the Florida Bar. Unfortunately, the Florida Bar does not protect consumers of legal and court services. Barton also notes, the ABA and the courts have defended entry regulation as a protection for the public from incompetent or unethical lawyers1. (p. 147) This rationale is not particularly persuasive. There are actually two underlying parts to the "protection from incompetent lawyers" defense. The first part is what economists call information asymmetry. In this area, it means that consumers lack sufficient information to gauge a good lawyer from a bad lawyer or even a dangerous lawyer. The second part is that the harm a bad lawyer can cause is so severe that we need to protect clients ex ante from damage, rather than just paying them money ex post after any damages occur. Classic examples of irremediable damages are harms to health or safety, because it is very hard to recompense victims for severe injuries.
1

See, e.g., ABA, ABA Model Code of Professional Responsibility (Chicago: ABA, 1983), EC 1-2 ("The public should be protected from those who are not qualified to be lawyers by reason of a deficiency in education or moral standards or of other relevant factors but who nevertheless seek to practice law."); ABA Commission on Professionalism, In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism (Chicago: ABA, 1986), 10; In re Schwartz, 862 P.2d 215,218 (Ariz. 1993) (stating that the purpose of attorney discipline is not to punish the offender, but to protect the public and the justice system); In re Ruffalo, 390 U.S. 544,550 (1968) (noting that disbarment is "designed to protect the public"); In re Agostini, 632 A.2d 80, 81 (Del. 1993) (stating that sanctions are aimed at protecting the public and fostering confidence in the justice system).

Numquam Dixerunt Legem Nobis Observandam Esse (They Never Said We Had To Obey The Law) p. 63 Former U.S. Attorney and Harvard Law School grad David W. Marston gave his opinion of lawyer regulation in Malice Aforethought: How Lawyers Use Our Secret Rules to Get Rich, Get Sex, Get Even...and Get Away with It. Former President Richard M. Nixon, a lawyer himself, endorsed the book in a paragraph3 on the back of the dust jacket. (A copy of Malice Aforethought was published 20 years before Prof. Bartons Lawyer-Judge bias book, and reached the same conclusion: Self-regulation of lawyers and the legal profession does not work to protect consumers of legal and court services affecting interstate commerce. Marston on antitrust: Even lawyers who have not kept up with legal developments understand that "antitrust" is a ticking time bomb, one that could blow up the entire unregulated legal monopoly. (p. 205). Marston also described what binds the profession: They all have undergone the same tough initiation, and once admitted to membership, all have sown the same oath. They live by their own rules and have fiercely resisted efforts by outsiders to penetrate their clan. They have a code of silence that makes the Mafias omerta seem gossipy. (4, p. 22) The organization enforces its own discipline, and outsiders can piece together only the most fragmentary picture of the process... (2, p. 23) It's not the Mafia. Not the Medellin drug cartel, or some shadowy Chinese tong. The members are all lawyers. And the organization is the American legal profession. (p. 23-24). Professional Courtesy - No Compliance With Rule 4-8.3 - Reporting Misconduct Lawyers rarely report other lawyers. (p.167). Critics may call that irresponsible, proof that self-regulation does not work. We call it professional courtesy. (p. 167).

Dave Marstons Malice Aforethought is a fascinating expos of the illegal, corrupt, and unethical practices of some members of the legal profession. But what is even more disturbing is that those guilty of such practice too often receive only a gentile slap on the wrist from bar associates and others with responsibilities to punish those who engage in such practices. Some of the abuses he describes are so blatant that if they appeared in a movie, viewers would find it hard to believe that they could have been based on fact. Mr. Marston has written one of those rare books in which the facts of the abuses he describes are worse than fiction. Former President Richard M. Nixon 6

THE SECRET LIFE OF JUDGES, 75 Fordham L. Rev. 2855 (2007) The Honorable Dennis Jacobs, Chief Judge, U.S. Court of Appeals for the Second Circuit When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained - by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias. In 2006 Judge Jacobs delivered a speech entitled "The Secret Life Of Judges" at Fordham University School of Law. The published manuscript won a Green Bag Award for exemplary legal writing in the short article category. Prof. Barton commented on page 1 of his book: Judge Jacobs's remarks are exceptionally frank for any sitting judge, and are particularly startling from the chief judge of the Second Circuit. It is quite unusual for any judge or lawyer to discuss a bias in favor of the legal profession; it is a criticism that cuts too close to the bone. If and when cases crop up that favor the legal profession, lawyers, judges, and law professors are quick to explain them away as correct decisions that reflect the unique position of lawyers in the American justice system or as anomalies. This may explain why relatively little has been written about what I call the lawyer-judge bias. Judge Jacobs, in his own words, beginning at 4, page 2861: I sometimes think that the problem at bottom is really a lack of respect by lawyers for other people. Judges live chiefly in a circle of lawyers. Our colleagues are lawyers; happily, our friends are lawyers (and I am hoping to keep some after this lecture); the only outside income a federal judge can earn (aside from royalties) is from teaching in law schools (with the idea, I suppose, that they furnish a nonpartisan environment); and the only political and trade organizations we can join are bar associations. But outside that circle there are people who are just as fully absorbed by other pursuits that deserve consideration and respect. Judges need a heightened respect for how nonlawyers solve problems, reach compromises, broker risks, and govern themselves and their institutions. There are lawyers on the one hand; and just about everybody else is the competition in the framing of values and standards of behavior. The Secret Life of Judges appears at Appendix 1. Judge Jacobs concluded: As a matter of self-awareness and conscience, judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust, even if our friends and colleagues in the legal profession lead us that way. For the judiciary, this would mean a reduced role, but not a diminished one if the judiciary is elevated by considerations of honor, self-restraint, and respect for other influences. 7

LOCAL DISCIPLINE COMPONENTS A Fatal Defect In The Florida Bars Lawyer Discipline System Local components, such as local bar investigative committees, foster cronyism as well as prejudice against unpopular respondents. - ABA McKay Report The American Bar Association recommended eliminating local discipline components in its McKay Report, see the section titled: IMPROVING THE QUALITY OF DECISIONS Implementing Existing ABA Policy: All jurisdictions should restructure their disciplinary systems to eliminate local components. All stages of disciplinary proceedings, including intake and screening of complaints, investigation, prosecution, hearing, and appeal should be conducted on a statewide or regional basis under the jurisdiction of a statewide disciplinary official or body, consistent with MRLDE 1, 3E(1), and 4B(1),(2),(3). Comments: Despite the fact that eliminating local disciplinary enforcement was a major recommendation of the Clark Report, at least twelve jurisdictions still have significant local components in their disciplinary systems. Local components, such as local bar investigative committees, foster cronyism as well as prejudice against unpopular respondents. Local components result in a lack of uniformity in procedures and in the application of the rules of professional conduct. Local components promote delay in the handling of disciplinary cases. While the distinction between a regional and a local body is sometimes unclear, regional bodies: (1) have uniform rules of procedure, (2) lack discretion to vary their procedures, (3) are directly supervised by a statewide authority, (4) can easily transfer cases among themselves; and (5) have a large enough jurisdiction so that respondents are not routinely known personally by adjudicators. Prior to any litigation, Gillespie made an initial written complaint June 7, 2004 to the Florida Bars Tampa Branch Office against William J. Cook for theft of $7,1433 from Gillespies share of the total recovery in a prior contingent fee lawsuit against AMSCOT 4. Mr. Cook concocted a $50,000 closing statement fraud for claim against AMSCOT for court-awarded fees and costs. [Rule 4-1.5(f)(5)]. In fact no fees were awarded - the case settle for business reasons. Susan V. Bloemendaal was then, and is today, Chief Branch Discipline Counsel for the Tampa Branch Office. Discipline authority of the Florida Bar is in the table of authorities cited.

3 4

See Plaintiffs First Amended Complaint, May 5, 2010, 05-CA-7205, with motion to amend. Clement, Blomefield, and Gillespie v. AMSCOT Corporation, No. 01-14761-AA, U.S. 11th Circuit COA

Gwynne A. Young was one of three Florida Bar Board of Governors for the Thirteenth Judicial Circuit who reviewed this discipline matter in 2007. (Appendix 8). Discipline responsibility and authority for the Board of Governors is found in the table of authorities cited. Gwynne A. Young is currently the President of The Florida Bar. The Florida Bars discipline system relies on local discipline components. The five Chief Branch Discipline Counsels of each Florida Bar Branch Office are local discipline components: Tallahassee Chief Branch Discipline Counsel: James N. Watson, Jr. Tampa Chief Branch Discipline Counsel: Susan V. Bloemendaal Orlando Chief Branch Discipline Counsel: Jan K. Wichrowski Ft. Lauderdale Chief Branch Discipline Counsel: Adria E. Quintela Miami Chief Branch Discipline Counsel: Arlene K. Sankel Each Branch Office has a handful of Assistant Staff or Bar Counsels, and grievance committees, that consider complaints against lawyers. The Florida Bars organizational chart shows 79 grievance committees comprised of over 700 volunteers. (Appendix 9). On June 21, 2004 the Florida Bar assigned Gillespies complaint to Assistant Staff Counsel William L. Thompson who opened TFB No. 2004-11,734(13C). Mr. Thompson diligently investigated Gillespies complaint, but after six months was removed from the inquiry. Gillespie believes Mr. Thompson found probable cause of misconduct, but he was unable to complete his inquiry. Mr. Thompsons personnel file shows he terminated January 7, 2005. Ms. Bloemendaal subsequently wrote an unsatisfactory exit review for Mr. Thompson that was contrary to his overall record and merit pay increase of September 1, 2004 5. Susan Bloemendaal personally assumed investigation of Gillespies complaint, instead of assigning it to another Assistant Staff Counsel as usually happens. Ms. Bloemendaal soon closed the file, and notified Gillespie of the case closure by letter February 9, 2005, stating in part:

Mr. Thompson married a colleague in the office, Assistant Staff Counsel Jodi Anderson, November 4, 2004.

Mr. Gillespie, the bar has carefully reviewed all the information and documents provided by you and Mr. Cook. Based upon this review, it is the bar's position that the objective evidence is insufficient to support a finding of misconduct behalf of Mr. Cook. However on January 13, 2006 Gillespie prevailed by Order6 of Hillsborough Judge Nielsen that rejected Mr. Cooks concocted claim to $50,000 for court-awarded fees and costs. This was the basis for Mr. Bauers appearance for Gillespie and $31,000 in legal fees. Mr. Bauer was a referral from the Bar Lawyer Referral Service (LRS), who repudiated the Bars decision. Now the Bar is protecting Mr. Bauer. The Bar has a conflict investigating Bauer, its LRS referral. A record of all the Tampa Branch discipline proceedings is available. A list of all related Bar complaints appears at Appendix 10. A list of related cases appears at Appendix 11. The ABA Clark Report from 1970 also criticized local discipline components: Problem 2, Local and fragmented nature of disciplinary structure: The Clark Committee found in many states disciplinary functions conducted by local jurisdictions so small that all the lawyers knew each other personally. This caused three problems: (1) the difficulty of passing objective judgment on social and professional acquaintances; (2) the appearance of impropriety in attempting to do so; and (3) a lack of uniformity in discipline imposed. The Committee recommended statewide centralization of the disciplinary system under the ultimate control of the state's highest court, with branch offices in major population centers of more populous jurisdictions. Current Status: Most jurisdictions have revised their discipline systems since the Clark Report and have eliminated local committees. However, a significant minority still perform some discipline functions at the local level. According to the Commission's survey of disciplinary counsel, ten jurisdictions still have local committees that receive complaints from the public. Eleven states use local investigators or committees to investigate complaints. Fifteen states use local bodies to make the decision whether to file formal charges. Evaluations of several of these jurisdictions by the ABA Standing Committee on Professional Discipline reveal that local components of disciplinary systems continue to create the same problems identified by the Clark Report. In all of these evaluations, the Standing Committee has recommended eliminating local components and establishing statewide bodies. Forty-three (43) years after the Clark Report, The Florida Bar, unfortunately, still relies on local discipline components in its Branch Office lawyer discipline system, other than during intake.

Gillespie v. Barker, Rodems & Cook, PA, et al., case no. 05-CA-7205, Hillsborough Co., FL, Order On Defendants Motion To Dismiss And Strike, Jan. 13, 2006. (Hon. Richard Nielsen).

10

THE FLORIDA BAR HAWKINS REPORT - MAY 2012 The Hawkins Report shows serious and ongoing problems with the Florida Bars discipline system. This is not surprising given the Bars reliance on local discipline components. The Hawkins Report opened with a reference to Ponzi schemer Scott Rothstein, and foreclosure mills, like David J. Stern, both cited in Reasons For Granting the Petition. (p. 37). In June 2011, incoming Florida Bar President Scott G. Hawkins appointed the Hawkins Commission on Review of the Discipline System. His vision for this Commission was stated in his 2011 video message to Bar members: The grievance commission will study the Bars regulation of lawyer conduct, with an eye on the rapidly growing number of Bar members and in view of some recent high-profile matters involving broad-scale misconduct. The goal is to make sure the Bar is fully responsive and vigilant in regulating our nearly 100,000 members. The Bar has faced some large-scale problems in recent years, such as mass frauds and improper filings in foreclosures, and we must be prepared to handle such large problems in the future. The Hawkins Report states, The Commissions focus was not an omnibus examination of the disciplinary system, as was conducted by the Coxe Commission from 2003-2005. Instead, the group was given specific tasks to study, and was divided into three subcommittees. Standards for Imposing Lawyer Sanctions, Alternatives to Discipline, and issues related to Aging Lawyers. Bars Attorney Consumer Assistance Program, as well as frivolous or retaliatory complaints and complaints against lawyers made by judges. Complex discipline or widespread impact cases, as well as communication with the public and bar members about the grievance program.

The Hawkins Report did not consider local discipline components, or any meaningful consumer protection issues. Some of the survey results are shown below. Tellingly a number of critical responses are from Florida judges and federal judges, and honest lawyers. The Hawkins Report appears in a separate volume appendix, and is also found on the Florida Bars website at the link for Publications, Bar Reports. All Bar Survey responses appear at Appendix A attached to this Supplemental Brief.

11

Responses to open ended questions, beginning p. 24/97 10. Were you satisfied with the disposition of the referred case(s)? If dissatisfied, please explain: (OPEN-ENDED QUESTION RESPONSES) Action Taken Was Not Adequate/Strong Enough (21 Responses), selected responses. Disappointed how the grievance committee process is used. Although there may be probable cause, the process will forgive a certain violation and deem it as "no probable cause." In one case, the attorney representing the referred violator approached me later to apologize for the situation, and that the violator "owed him one" for using his influence with the committee to get a finding of no probable cause. The Bar attorney likewise apologized. I conducted an evidentiary hearing over three or four days and was regrettably required to find a lawyer had suborned perjury. After finding the lawyer guilty of contempt, I referred this matter to the Bar. I used to Chair a Grievance Committee when I practiced law, so I am very familiar with the process. The grievance committee assigned a lawyer/member to investigate. This lawyer failed to investigate properly. She never spoke to me, she never spoke to any of the other lawyers in the case, and she never reviewed any transcripts. She merely called the lawyer whom I found in contempt; he denied suborning perjury and that's all she did. She recommended a finding of no probable cause. Her investigation was a joke and embarrassed the legal system and The Florida Bar. I see a lot of unprofessional behavior in the courtroom and only refer the most egregious of matters. Yet, you take these two cases and find NPC without even contacting me. I am very dissatisfied and feel like I received a blow to the face.

12.

The Commission is very interested in any comments that you may have about The Florida Bars discipline system and your experience(s) with it. Please utilize the space below to provide us with your comments. (OPEN-ENDED QUESTION RESPONSES) Lack of Confidence in the Process/System (26 Responses), selected responses. I am new to the bench but other judges have told me that they have had poor experiences with the Bar's discipline system and I will avoid it until things change. I do not know of a single judge who has confidence in the disciplinary process. I have always found Bar staff lawyers to be courteous. But I have a HUGE problem with the way matters are investigated by grievance committees. The investigating attorney was sloppy and failed to protect the public. And when I tried to bring this to her attention, after the fact, so we wouldn't make mistakes in the future, she was incredibly rude. I do not have a problem with a finding of NPC. I have a problem with an incompetent investigation. 12

I sat on the Board of Governors for several years. While on the Board I served on the Disciplinary Review Committee. I had heard rumors that the judges were not using the referral process because of a lack of confidence in the system. I have seen some of that first hand. As a judge, I am the present director of our statewide judicial mentoring program. One of my responsibilities is to work with new judges as they learn how to become effective judges. An area we discuss is Bar referrals. Unfortunately, the overall experience appears not to have been good. Several judges with whom I have spoken with refuse to, to use their terminology, "waste" [their] time on a referral when nothing will become of it." The Grievance Committee process needs revision. It appears to be a conflict that peers who work with these members then evaluate their conduct. I continue to have little faith and confidence in this process. The judges do not take this system seriously because we keep referring the same lawyers to you and then we see them right back in our courtroom performing the same unprofessional behavior over and over. I'm done referring cases. It's a bit of a mockery right now and lawyers know it. It is very rare when I need the Bar but, when I do, I want them right away and I want to move the front of the line. By that, I mean referrals from judges should be treated with priority as the Bar is all a judge has left. The appellate courts have taken away all contempt enforcement power and the word has spread that judges can do nothing to you so you may as well act the way you want to. Additionally, my state attorney will not follow the rules which allow a judge to refer the matter to the state attorney and then to the Chief Judge for proceedings in Circuit Court. So I can refer them but it goes nowhere when the state attorney ignores the referral. Maybe I am old fashioned, but there was a day when a judge did not ask for help -- the judge just handled the matter and it was quick and effective. There is a general perception that disciplinary referrals are often an exercise in futility and, for that reason, I am concerned that judges may not make future referrals in cases warranting disciplinary action. We as judges have so little faith in Florida Bar counsel and the disciplinary process. While it is understandable that trust fund violations and thefts from clients deserve top priority, the instances of dishonesty with the tribunal and false attacks on tribunals are increasing in frequency due to a perception that the Bar does not have the resources to investigate or prosecute cases of that nature.

13

CONCLUSION THE FLORIDA BAR: THE TAIL THAT WAGS THE FEDERAL JUDICIARY I have practiced law for over 30 years and served over 20 as a judge. But for a few exceptions, the lawyers in this area are ethical and qualified. However, the same disreputable lawyers continue their practices and, despite past Bar investigations and disciplinary actions, these disreputable lawyers are still here practicing law. I have had discussions with several other judges and our conclusion is always the same. There is no need to refer the incompetent, unethical lawyer to the Bar since the disciplinary actions are too little and too late. Good luck. - Respondent to the Florida Bar survey, Hawkins Report, page 24/112 ______________________________ The Petition alleges our Founders did not consider the corrupting power and influence of a rival called the Florida Bar. The Petition showed, unfortunately, that a Florida lawyer in private practice can usurp what is called in Article III the judicial power of the United States. This Supplemental Brief shows a breakdown in the Florida Bars discipline system, through the use of local discipline components which the ABA has condemned. Critical comments in the Hawkins Report made by judges and lawyers, like the above quote, show the futility of lawyer discipline under the current system. It is worse for lay people. U.S. District Judge Wm. Terrell Hodges, having elected Senior Status, raises another issue: Are Senior Judges Unconstitutional? That issue was addressed by David Stras and Ryan Scott, in 92 Cornell Law Review 453 (2007) which appears in a separate volume appendix. The authors examine two general constitutional questions: first, whether the requirement that senior judges be designated and assigned by another federal judge before performing any judicial work violates the tenure protection of Article III; and second, whether allowing judges to elect senior status, without a second, intervening appointment, violates the Appointments Clause. A response to Gillespie April 25, 2012 by Middle District Chief Judge Anne C. Conway is telling on the issue of the independence Senior Judge Hodges: (Appendix 12).

14

I am in receipt of your correspondence dated March 22, 2012. Since this case is not assigned to me there is nothing I can do to assist you. 28 U.S.C. 137 - Division of business among district judges, shows a chiefjudge makes the assignments, calling into question the reasoning in Chief Judge Conway's letter: The chiefjudge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. Chief Judge Conway had power to reassign Judge Hodges from the Ocala Division where he is the sole Article III Federal Judge, Senior Status or not, which might be disruptive. Prior to filing his lawsuit September 28,2010, Gillespie contacted August 30,2010 James Leanheart, the Ocala Division Court Operations Supervisor, about the case. (Appendix 13). Mr. Leanheart later told Gillespie that he discussed Gillespie's plan to sue the Thirteenth Judicial Circuit with someone, but would not say whom. A reasonable person could conclude he told Chief Judge Conway. Chief Judge Conway is a member in good standing of the Florida Bar, ID No. 198315. Judge Hodges is a member in good standing of the Florida Bar, ID No. 36398. Can a federal judge constitutionally be a member of the Florida Bar while serving on the federal judiciary? The Florida Bar has failed to adequately discipline persons adnlitted to the practice of law in Gillespie's case, and in the opinion of the respondents to the Bar survey, many of whom are lawyers and judges. Ordinary people, consumers of legal and court services, have no protection from bad or dangerous lawyers, and no recourse for injury or damage sustained. Unfortunately, the corrupting power and influence of the Florida Bar has overtaken the federal judiciary within Florida. Respectfully Submitted, February 13, 201~~
~

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Results of the Survey on The Florida Bars Disciplinary System

(Circuit, County, and District Courts of Appeal Judges)

January 2012
APPENDIX A

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BACKGROUND
Upon the request of Subcommittee Two of the Commission on the Review of The Florida Bars Disciplinary System, a survey was developed to determine judges levels of satisfaction regarding various elements of communication within the Bars disciplinary process. Chair Edward Cheffy, vice-chair Jake Schickel, and subcommittee members Courtney Grimm, Tom Bateman, Julie Simone Sneed, Michael Higer, Alvin Alsobrook, Linda Burdick, Stacy Scott, Michael Lax, and Jewel White created the questionnaire while working with Florida Bar staff members John Berry, Mike Garcia, Ken Marvin, and Arne Vanstrum. The primary purpose for the survey was to ascertain the judiciarys perceptions and experiences in order to determine whether the Bars disciplinary process is fulfilling its expectations in regards to efficient and effective communication with judges who refer cases to the Bar involving lawyer conduct. The survey will assist the Commission in its overall effort to study the Bars regulation of lawyer conduct. It is important to note that the survey was intentionally limited to matters that may have occurred in the past five years because a change in The Bars policy for handling complaints received from judicial officers was recommended after a previous Commissions study concluded in 2006. The new policy became effective July 1, 2007.

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SAMPLE

The Survey on The Florida Bars Disciplinary System was conducted in December 2011. A link to an electronic survey was sent through an email by the Office of the State Courts Administrator to each Chief Judge in Florida (with a copy to the trial court administrators and DCA marshals) requesting that the Chief Judges distribute the email and survey link information to all judges in their respective courts. A total of 982 judges (599 Circuit Court, 322 County Court, and 61 DCA) would be invited to participate. By the cutoff date of December 23, 2011, 297 completed questionnaires had been received for a response rate of 30%. The Florida Bar's Department of Research, Planning & Evaluation coded and categorized all qualitative questions in the survey, verified data for accuracy and completeness, and applied the appropriate statistical tests to the data. In reporting the results, all percentages were rounded to the nearest whole percent (example: 74.5% equals 75%). For this reason, totals will vary from 99% to 101%. Several measures of central tendency are mentioned throughout this report: Mean: The average for all values given for the total sample of each question. The mean is calculated by adding the values of all responses, then dividing by the number of responses. Example: Five responses (10, 1, 2, 2, 20) are reported. The average, or mean is calculated by adding 10 + 1+ 2 +2 + 20 = 35 and then by dividing by the number of responses (5). Thus the average is 35 divided by 5 = 7. Median: The median is the middle value in a series, or distribution of values which is initially rank-ordered (from low to high, or vice-versa). By definition, half the numbers are greater, and half the numbers are less than the median. Example: Five responses (10,

24 (88)

1, 2, 2, 20) are reported. The median is the middle number of the order of distribution (1, 2, 2, 10, 20), or, 2. By comparison, the average of this same distribution, as shown above, is 7. Range: the highest and lowest values provided by the total sample for a particular question. In reporting the results, all percentages were rounded to the nearest whole percent (example: 74.5% equals 75%). For this reason, totals will vary from 99% to 101%.

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Results of the Survey on The Florida Bars Disciplinary System (Circuit, County and District Court of Appeals Judges)

1.

Have you referred any cases involving lawyer conduct to The Florida Bar in the last five years? Category Yes No
(n=297)

Percent 31 69

Nearly one-third (31%) of all respondents have referred a case involving lawyer conduct to The Florida Bar in the last five years.

2.

Please indicate the total number of cases that you have referred over the past five years. Category 1 2 3 4 or 5 6 to 10 More than 10 Mean = 2 Median = 2 Range = 1 to 20
(n=95)

Percent 48 32 16 1 1 1

3.

After you referred the matter(s) to The Florida Bar, did you ever receive a phone call from an attorney handling the case for the Bar?

Category Yes, in all instances Yes, in some instances No *

(n=91)

Percent 39 26 35

Just under two-fifths (39%) of respondents who have filed a case report that, in all instances, they received a phone call from a Florida Bar attorney who was handling the case. Slightly over one-quarter (26%) report that they received a call in some instances, while just over one-third (35%) report that they never received a phone call.

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4. If the case(s) did advance beyond the Intake level (to a Grievance Committee or further), were you asked by The Florida Bars attorney whether you wanted to receive updates or copies of the documents? Category Yes, in all instances Yes, in some instances No *
(n=62)

Percent 44 24 32

When considering only those cases that went beyond the Intake level, over two-fifths (44%) of respondents report that, in all instances, The Florida Bars attorney asked whether they wanted to receive updates or copies of documents. Nearly one-quarter (24%) report that The Florida Bar attorney asked in some instances, while about one-third (32%) report that the Bars attorney did not ask.

5.

If you asked for updates or copies of documents, did you receive them? Category Yes, in all instances Yes, in some instances No
(n=41)

Percent 68 15 17

Approximately two-thirds (68%) of respondents who asked for updates or copies of documents report that they received them in all instances. Almost one-third (32%) report that they either received copies or documents in some instances, or not at all.

6.

If the Supreme Court issued an Order or Opinion on the case(s) you referred, were you given a copy of the Order or Opinion? Category Yes, in all instances Yes, in some instances No
(n=26)

Percent 31 0 69

When considering only those respondents who report that the Supreme Court issued an order or opinion on the case they referred, over two-thirds (69%) report that they were not provided with a copy of that order or opinion.

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7.

Please indicate your overall perception of how courteous and professional Florida Bar attorneys were during any communications. Category Very courteous/professional Somewhat courteous/professional Neutral Somewhat discourteous/unprofessional Very discourteous/unprofessional I did not communicate with a Florida Bar attorney
(n=89)

Percent 45 16 6 1 0 32

Just over three-fifths (61%) of respondents report that Florida Bar attorneys were courteous and professional, compared to only 1% who report that they were discourteous and unprofessional. Nearly one-third (32%) of all respondents report that they never communicated with a Florida Bar attorney.

7a.

Please indicate your overall perception of how courteous and professional Florida Bar attorneys were during any communications. (INCLUDES ONLY THOSE RESPONDENTS WHO REPORT THAT THEY COMMUNICATED WITH A FLORIDA BAR ATTORNEY) Category Very courteous/professional Somewhat courteous/professional Neutral Somewhat discourteous/unprofessional Very discourteous/unprofessional
(n=60)

Percent 67 23 8 2 0

When considering only those respondents who report that they communicated with a Florida Bar attorney, 90% indicate that the Bars attorney was courteous or professional, compared to only 2% who indicate that the Bars attorney was discourteous or unprofessional.

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8.

Please indicate your overall level of satisfaction with the amount of communications that you received from The Florida Bar. Category Very satisfied Somewhat satisfied Neutral Somewhat dissatisfied Very dissatisfied
(n=86)

Percent 31 11 11 21 26

A slightly higher percentage of respondents report that they are dissatisfied (47%) with the amount of communication received from The Florida Bar, as compared to those who report that they are satisfied (42%) with the amount of communication received.

8a.

Please indicate your overall level of satisfaction with the amount of communications that you received from The Florida Bar BY THE LOCATION WHERE A JUDGE SERVES Serves in 1st DCA Percent
(n=10)

Category Satisfied Neutral Dissatisfied *

Serves in 2nd DCA Percent

(n=16)

Serves in 3rd DCA Percent

(n=17)

Serves in 4th DCA Percent

(n=21)

Serves in 5th DCA Percent

(n=19)

60 0 40

32 6 62

6 6 88

43 19 38

68 11 21

Judges who serve within the Fifth District Court of Appeal (Judicial Circuits 5, 7, 9 and 18) have a higher level of satisfaction with the amount of communications received from The Florida Bar, while judges who serve within the Third District Court of Appeal (Judicial Circuits 11 and 16) have a higher level of dissatisfaction with the amount of communications received from The Florida Bar.

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8b. If dissatisfied with the amount of communications that you received from The Florida Bar, please explain: A total of 27 respondents provided reasons as to why they are dissatisfied with the amount of communications they received from The Florida Bar. Each response was reviewed and categorized. The table below lists the three categories. A complete listing of all responses for this question can be found on Pages 13-14 located in Appendix A. Category Very little or no communication received Counsels handling of the case Referral recently made/case still pending Number of Responses 23 3 1

9.

Please indicate your overall level of satisfaction with the quality of communications that you received from The Florida Bar. Category Very satisfied Somewhat satisfied Neutral Somewhat dissatisfied Very dissatisfied
(n=85)

Percent 32 8 11 24 26

Half (50%) of respondents report they are dissatisfied with the quality of communications received from The Florida Bar, compared to two-fifths (40%) of respondents who report they are satisfied.

9a.

Please indicate your overall level of satisfaction with the quality of communications that you received from The Florida Bar BY THE LOCATION WHERE A JUDGE SERVES Serves in Serves in Serves in Serves in Serves in nd rd th 3 DCA 4 DCA 5th DCA 1st DCA 2 DCA Percent Percent Percent Percent Percent Category
(n=10) (n=16) (n=17) (n=20) (n=19)

Satisfied Neutral Dissatisfied *

50 10 40

31 13 56

6 6 88

40 15 45

68 11 21

Judges who serve within the Fifth District Court of Appeal (Judicial Circuits 5, 7, 9 and 18) have a higher level of satisfaction with the quality of communications received

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from The Florida Bar, while judges who serve within the Third District Court of Appeal (Judicial Circuits 11 and 16) have a higher level of dissatisfaction with the quality of communications received from The Florida Bar.

9b.

If dissatisfied with the quality of communications that you received from The Florida Bar, please explain: A total of 26 respondents provided reasons as to why they were dissatisfied with the quality of communications they received from The Florida Bar. Each response was reviewed and categorized. The table below lists the three categories. A complete listing of all responses to this question can be found on Pages 15-16 located in Appendix A. Category Very little or no communication received Counsels handling of the case Referral recently made/case still pending Number of Responses 22 3 1

10.

Were you satisfied with the disposition of the referred case(s)? Category Yes, in all cases Yes, in some cases No
(n=83)

Percent 26 16 58

Just over one-quarter (26%) of respondents report they are satisfied, in all instances, with the disposition of their referred cases, compared to nearly three-fifths (58%) of respondents who report that they are not satisfied.

10a.

Were you satisfied with the disposition of the referred case(s) BY THE LOCATION WHERE A JUDGE SERVES Serves in 1st DCA Percent
(n=10)

Category Yes, in all cases Yes, in some cases No

Serves in 2nd DCA Percent

(n=15)

Serves in 3rd DCA Percent

(n=17)

Serves in 4th DCA Percent

(n=20)

Serves in 5th DCA Percent

(n=18)

60 0 40

13 20 67

6 12 82

15 20 65

39 22 39

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* Judges who serve within the First District Court of Appeal (Judicial Circuits, 1, 2, 3, 4, 8 and 14) have a higher level of satisfaction with the disposition of referred cases, while judges who serve within the Third District Court of Appeal (Judicial Circuits 11 and 16) have a higher level of dissatisfaction with the disposition of referred cases.

10a.

If dissatisfied with the disposition of the referred case(s), please explain: A total of 40 respondents provided reasons as to why they were dissatisfied with the disposition of the referred case(s). Each response was reviewed and categorized. The table below lists the five categories. A complete listing of all responses to this question can be found on Pages 17-19 located in Appendix A. Category Action taken was not adequate/strong enough Lack of communication Referral recently made; case still pending Process takes too long Miscellaneous Number of Responses 21 13 3 2 1

11.

How interested would you be in having The Florida Bars personnel discuss Bar procedures and the discipline system at judicial education programs?

Category Very interested Somewhat interested Neutral Somewhat uninterested Very uninterested *

(n=281)

Percent 30 38 11 8 13

Over two-thirds (68%) of respondents would be interested in having The Florida Bars personnel discuss Bar procedures and the discipline system at judicial education programs, compared to just over one-fifth (21%) who report they would not be interested.

10

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12.

The Commission is very interested in any comments that you may have about The Florida Bars discipline system and your experience(s) with it. Please utilize the space below to provide us with your comments. A total of 87 respondents provided comments about The Florida Bars discipline system and their experience with it. Each response was reviewed and categorized. The table below lists the eight categories. A complete listing of all responses to this question can be found on Pages 20-28 located in Appendix A. Category Lack of confidence in the process/system Action taken is not adequate Slow process Education about disciplinary process/procedures Positive commentary about the process Lack of communication Never referred a case Miscellaneous Number of Responses 26 17 10 9 9 6 2 8

13.

Within which of the following District Courts of Appeal do you serve as a judge? Category
(n=276)

Percent 19 24 13 21 23

First DCA (Judicial Circuits, 1, 2, 3, 4, 8 and 14) Second DCA (Judicial Circuits 6, 10, 12, 13 and 20) Third DCA (Judicial Circuits 11 and 16) Fourth DCA (Judicial Circuits 15, 17 and 19) Fifth DCA (Judicial Circuits 5, 7, 9 and 18)

11

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APPENDIX A:

RESPONSES TO OPENENDED QUESTIONS

12

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8. Please indicate your overall level of satisfaction with the amount of communications that you received from The Florida Bar. If dissatisfied, please explain: (OPEN-ENDED QUESTION RESPONSES)

Very Little or No Communication Received (23 Responses) * Each complaint was accompanied by written proof in the form of affidavits signed by the offending lawyer showing the inherently perjurious statement by the lawyer. In one instance I received a single phone call requesting that I withdraw the complaint because the lawyer "made a mistake in his sworn statement." I declined and I never heard another word. In the second instance, I never heard anything from anyone. Both were simply buried or ignored by the Bar. I don't waste time with the Bar anymore. Extremely poor communication never heard anything about it. Had no contact or updates. I don't want to say I was dissatisfied because I do not know if the Bar attorney knew which judges at our court referred particular attorneys. If the attorney was aware of who made the referrals I would have expected some form of communication from them regarding the matter. I never heard a word about the so-called investigation. It would have been nice to hear about how the case was disposed. I had to follow up on my own and I still don't know the extent of the investigation. Never got any response from The Florida Bar after filing a grievance. The designated reviewer of the grievance committee was in contact and was very professional, however, there was no contact made from Bar counsel directly. Never heard back. Never heard how case was disposed and why. Never learned how the case was investigated or disposed. No communications received. No contact was made. No information was conveyed. No one bothered to return my phone calls.

* * *

* *

* * * * * * *

13

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* No one called to request additional documentation or information. NPC was found in both cases without any communication to me. It is a slap in the face. No returned calls. There was no discussion. There was very little communication. My Judicial Assistant had to call in one instance and, in a UPL, we never heard anything. Too few. I was never updated. Very little communication and my Judicial Assistant had to follow up numerous times. Was never contacted or told the outcome. We did not speak. Would have been nice to hear back from someone.

* * *

* * * * *

Counsels Handling of the Case (3 Responses) * Counsel didn't take the case seriously. It seemed like she just went through the motions and quickly found no cause. One case was handled and the lawyer was disciplined. I was kept informed the entire time. The second case was against a lawyer with several prior (and similar) complaints in which he was disciplined. I have no idea what happened with my complaint and I don't think any action was ever taken against the lawyer. I believe the Florida Bar lawyer did not pursue my complaint purely due to race. The lawyer was a chronic offender and no one in The Florida Bars office tried to determine the chronicity and severity of the behavior. In fact, there was mitigation as a result of his "contributions" to the court. The resulting discipline was an injustice.

Referral Recently Made/Case Still Pending (1 Response) * I only recently submitted a copy of the order as a recommendation/referral so there has not yet been any communication, which is understandable.

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9. Please indicate your overall level of satisfaction with the quality of communications that you received from The Florida Bar. If dissatisfied, please explain: (OPEN-ENDED QUESTION RESPONSES) Very Little or No Communication Received (22 Responses) * Each complaint was accompanied by written proof in the form of affidavits signed by the offending lawyer showing the inherently perjurious statement by the lawyer. In one instance I received a single phone call requesting that I withdraw the complaint because the lawyer "made a mistake in his sworn statement." I declined and I never heard another word. In the second instance I never heard anything from anyone. Both were simply buried or ignored by the Bar. I don't waste time with the Bar anymore. I did not receive communication. I never heard back. In two cases, I received no information until the final disposition; which, itself, was very disappointing. Lack of communications. Needed more communications. Never heard back. No communications received. No communications were received. No contact was made. No information exchanged. No one called to request additional documentation or information. NPC was found in both cases without any communication to me. It is a slap in the face. No one seemed to care enough to return calls. One would think the judiciary would be advised as to what was happening. We are not. Poor communication. The designated reviewer of the grievance committee was in contact and was very professional. There was no contact from Bar counsel directly.

* * *

* * * * * * * *

* * * *

15

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* * * * * *

There wasn't any communication at all. There wasn't any communication. There were no communications at all. There were no communications. Voice mails were exchanged and nothing else. With no returned call, there was no communication to rate.

Counsels Handling of the Case (3 Responses) * * Counsel was disinterested. One Florida Bar attorney was borderline rude and showed little respect to my Judicial Assistant. The counsel I spoke with appeared to have his mind made up that unprofessionalism behavior is not worth pursuing for the Bar.

Referral Recently Made; Case Still Pending (1 Response) * Again, referral was just recently made.

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10. Were you satisfied with the disposition of the referred case(s)? If dissatisfied, please explain: (OPEN-ENDED QUESTION RESPONSES)

Action Taken Was Not Adequate/Strong Enough (21 Responses) * An unauthorized practice of law complaint resulted in nothing more than a "don't do it again" admonition. Disappointed how the grievance committee process is used. Although there may be probable cause, the process will forgive a certain violation and deem it as "no probable cause." In one case, the attorney representing the referred violator approached me later to apologize for the situation, and that the violator "owed him one" for using his influence with the committee to get a finding of no probable cause. The Bar attorney likewise apologized. Egregious behavior goes unpunished. Everything is dismissed. The system doesn't work. I am batting a thousand. The Bar decided the attorneys did nothing wrong. We refer cases and you throw them out the window. I conducted an evidentiary hearing over three or four days and was regrettably required to find a lawyer had suborned perjury. After finding the lawyer guilty of contempt, I referred this matter to the Bar. I used to Chair a Grievance Committee when I practiced law, so I am very familiar with the process. The grievance committee assigned a lawyer/member to investigate. This lawyer failed to investigate properly. She never spoke to me, she never spoke to any of the other lawyers in the case, and she never reviewed any transcripts. She merely called the lawyer whom I found in contempt; he denied suborning perjury and that's all she did. She recommended a finding of no probable cause. Her investigation was a joke and embarrassed the legal system and The Florida Bar. I didn't feel the case was handled well by counsel. I don't think the attorney learned a thing. I learned that it was merely a slap on the wrist. I won't be sending any more cases. I see a lot of unprofessional behavior in the courtroom and only refer the most egregious of matters. Yet, you take these two cases and find NPC without even contacting me. I am very dissatisfied and feel like I received a blow to the face. It was a lawyer with a long history. The result did nothing to solve the problem and it has become a "joke" within the judiciary.

* * *

* * * *

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* *

It was a slap on the hand for a serious offense. My complaint was not pursued and there was no reasonable explanation for it since the lawyer had been disciplined for similar complaints previously. The Bar assigned a different lawyer to my complaint than the attorney who handled all of the other complaints. Both the investigating attorney and attorney being investigated were the same race. I never heard anything regarding the complaint and I've checked and the attorney was never disciplined as a result of my complaint. No strong action was taken. Results are always the same for the judges. The attorney was 10 days away from going on probation in a prior incident wherein he had stipulated to a probation period. The event in front of me occurred 10 days prior to his probation and while he was on probation he had another incident in front of another Judge. Both incidents were tried together by the Bar. He received 10 days of suspension for both incidents concurrent to each other. This punishment was far too lax for the grossly unprofessional conduct exhibited by this attorney to two judges with his prior actions already resolved in probation. The case was dismissed without a thorough review. Referring cases to you is a waste of time. The Florida Bar only slaps the wrists of lawyers who violate the rules of professional conduct. The particular issue was not adequately addressed. While I understood the rationale for the resolution of the case, I believe the outcome was something short of a soft slap on the wrist. You are way too lenient.

* * *

* *

Lack of Communication (13 Responses) * * * * Case was dismissed without anyone contacting me. Disposed of quickly and with no explanation to me. Do not know what happened, or if it is ongoing. I have not heard anything.

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* * * * * * * I never heard back. I never knew what happened. I was disappointed that no contact was ever made. I was not made aware of the disposition. I was very surprised at the result and no explanation was ever offered to me. I would have liked to know why Bar counsel instantly disposed of my case. Never had any contact with The Florida Bar and therefore, I don't know how the case was resolved. No one ever told me the disposition. The cases simply disappeared. No one had the decency to tell me how the matter was handled.

* *

Referral Recently Made; Case Still Pending (3 Responses) * * * No communicated received yet in recent pending case. Still pending; satisfied up to this point. Two of the cases are still pending.

Process Takes Too Long (2 Responses) * * Process simply takes too long. Process took too long.

Miscellaneous (1 Response) * I say no only because the one I sent looked to be disciplined for other reasons and my referral seemed to be icing on the cake. The other is still pending.

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12. The Commission is very interested in any comments that you may have about The Florida Bars discipline system and your experience(s) with it. Please utilize the space below to provide us with your comments. (OPEN-ENDED QUESTION RESPONSES)

Lack of Confidence in the Process/System (26 Responses) * I am new to the bench but other judges have told me that they have had poor experiences with the Bar's discipline system and I will avoid it until things change. I do not know of a single judge who has confidence in the disciplinary process. I have always found Bar staff lawyers to be courteous. But I have a HUGE problem with the way matters are investigated by grievance committees. The investigating attorney was sloppy and failed to protect the public. And when I tried to bring this to her attention, after the fact, so we wouldn't make mistakes in the future, she was incredibly rude. I do not have a problem with a finding of NPC. I have a problem with an incompetent investigation. I have dealt with several Bar counsel and some have been very qualified, while others have not and have carried forth shoddy investigations. The system needs some repair. I wish I could tell you at what level, however, I hear it is broken across most levels. This survey is a good start. I have heard of such terrible experiences from other judges that I just won't refer any attorneys to the Bar for discipline. I just counsel them on my own. I have not heard good things about it from other judges. I heard of several bad experiences by judges but still decided to try a referral first hand. I won't be duped again. Unless a serious crime is committed, nothing is pursued. I sat on the Board of Governors for several years. While on the Board I served on the Disciplinary Review Committee. I had heard rumors that the judges were not using the referral process because of a lack of confidence in the system. I have seen some of that first hand. As a judge, I am the present director of our statewide judicial mentoring program. One of my responsibilities is to work with new judges as they learn how to become effective judges. An area we discuss is Bar referrals. Unfortunately, the overall experience appears not to have been good. Several judges with whom I have spoken with refuse to, to use their terminology, "waste" [their] time on a referral when nothing will become of it." I will never refer any attorney to the Bar again. When you do, most attorneys will file a JQC case in retaliation.

* *

* *

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* *

Inconsistencies and incompetency reign supreme. It is perceived by some judges that we should not bother making the time and effort to refer cases because the Bar does not do anything substantial and meaningful with them. It is very rare when I need the Bar but, when I do, I want them right away and I want to move the front of the line. By that, I mean referrals from judges should be treated with priority as the Bar is all a judge has left. The appellate courts have taken away all contempt enforcement power and the word has spread that judges can do nothing to you so you may as well act the way you want to. Additionally, my state attorney will not follow the rules which allow a judge to refer the matter to the state attorney and then to the Chief Judge for proceedings in Circuit Court. So I can refer them but it goes nowhere when the state attorney ignores the referral. Maybe I am old fashioned, but there was a day when a judge did not ask for help -- the judge just handled the matter and it was quick and effective. It's a crap shoot. You never know what you're going to get and, most times, the attorneys will walk away laughing at the system. New policies should be developed and applied consistently. Most judges do not believe in The Florida Bar's system as it just doesn't work. My experience has been: why bother to report a lawyer? If I did, nothing resembling justice would occur. Quite frankly, I have had two other instances where I have elected not to refer because of the lack of productivity of such a referral. Referring any case to the Bar is an utter waste of time and effort. Why bother? The Bar talks the talk but is virtually a waste of time unless a lawyer has stolen $$$$$$$$$$$$$$$$$. The Grievance Committee process needs revision. It appears to be a conflict that peers who work with these members then evaluate their conduct. I continue to have little faith and confidence in this process. The judges do not take this system seriously because we keep referring the same lawyers to you and then we see them right back in our courtroom performing the same unprofessional behavior over and over. I'm done referring cases. It's a bit of a mockery right now and lawyers know it. The system as it is right now is an embarrassment to the judiciary.

* *

* *

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* There is a general perception that disciplinary referrals are often an exercise in futility and, for that reason, I am concerned that judges may not make future referrals in cases warranting disciplinary action. There is very little adeptness and justice within your process. They have been overwhelmed with the number of foreclosure related complaints so I don't think it is fair to address the response to that; although somewhat discouraging at times. The different committees have failed to be able to see the whole picture and continuity of actions, based on one single complaint or incident. From what I hear from many judges, they don't bother to report attorneys because nothing ever happens. Thus, the problem is exacerbated and the attorneys get comfortable with their shoddy and unethical practices. Those on the bench have no confidence in referring unprofessionalism behavior as nothing ever gets done about it. Two cases referred. Two NPC. No communication. I'm done and so are the other judges. Until you put some substance into your system, the judges will not be using your vehicle. We as judges have so little faith in Florida Bar counsel and the disciplinary process. While it is understandable that trust fund violations and thefts from clients deserve top priority, the instances of dishonesty with the tribunal and false attacks on tribunals are increasing in frequency due to a perception that the Bar does not have the resources to investigate or prosecute cases of that nature.

* *

* *

Action Taken is Not Adequate/Strong Enough (17 Responses) * In over 10 years on the bench, I have seen it all. I only refer the most unprofessional of matters to the Bar and yet the Bar continuously sends the attorneys back out there with a slap on the wrist or less. Didn't seem like justice was served in my case. Friends and relatives tell me the public lacks faith in the Bar's discipline system because it seems attorneys get away with things that the "ordinary" persons do not. The public seems not to know how to report violations or considers it a waste of their time. The discipline seems to have no teeth, when compared to the alleged violation. I don't believe that sufficient punishment is provided to many of the attorneys and feel that it is almost a waste of time to report possible violations by attorneys.

* *

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* I have practiced law for over 30 years and served over 20 as a judge. But for a few exceptions, the lawyers in this area are ethical and qualified. However, the same disreputable lawyers continue their practices and, despite past Bar investigations and disciplinary actions, these disreputable lawyers are still here practicing law. I have had discussions with several other judges and our conclusion is always the same. There is no need to refer the incompetent, unethical lawyer to the Bar since the disciplinary actions are too little and too late. Good luck. I honestly believe racism had a role in not pursuing my complaint. However, I have no proof but there really is no reasonable explanation for my complaint going nowhere. I only filed it once I learned that this lawyer had prior similar complaints and he was using his poor behavior as a reason to recuse judges in the circuit. I could not stand by and let forum shopping occur. It is my perception, and a lot of my colleagues that I have spoken with, that it is useless to report low to mid level type ethical violations to the Bar because the blow back from the referral is worse than the punishment imposed. Judges have the perception that The Florida Bar will not sanction lawyers for violating the rules of professional conduct and, if they do sanction, then it is de minimis. No real sanctions. Much too lenient process. On two of the matters I referred to the Bar, no action was taken. It seems the Bar only goes after the low hanging fruit. The Bar is full of hot air and does little to support the bench. As long as theft is not involved, a slap on the wrist is all a lawyer will ever receive. So it turns out lawyers act even more unprofessional because they know they can get away with it. The Bar needs to pay more attention to issues of professional conduct between attorneys and the judges and their staff. The last time I sat as a referee in a disciplinary proceeding, I refused to accept a stipulated outcome in a VERY serious grievance matter involving a Federal felony conviction of a Florida attorney convicted in a scheme to launder drug money...and The Florida Bar dismissed the complaint. It left a bad taste in my mouth and I requested not to be assigned as a referee for any more Bar disciplinary matters. The only time I referred a disciplinary matter to the Bar, my impression was that the Bar totally dropped the ball. The reputation this profession enjoys in the eyes of the public is directly related to lawyer misconduct and our failure to control that misconduct with an effective disciplinary system. It is past time for the Bar and the Courts to get serious and support a strong

* *

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disciplinary system that enforces our Rules with tough measures meant to either change unethical/unprofessional behavior or put an end to it by removing lawyers from the practice of law in appropriate cases. My sense is that our current system is simply too lenient in addressing complaints and conduct. * Way too lenient. It is no wonder why attorneys behave so inappropriately and do some of the unbelievable things I have seen and heard attorneys do. You are too lenient on unethical acts.

Slow Process (10 Responses) * * * As a judge, the system is long in reacting. Delays by respondents in complying with proceedings. Florida is fortunate to have such a fine system for dealing with lawyer discipline and, while recognizing that resources are limited, speeding up the investigatory process would enhance the system. I think the Bar is too slow. My perception is that the system could run more quickly without prejudicing the respondents. Process takes so long. The Bar discipline program sometimes is slow to act. The length of complaint to resolution takes too long. The process needs to be streamlined as it takes an extremely long time. The process seems way too slow for serious cases.

* *

* * * * *

Education About Disciplinary Process/Procedures (9 Responses) * County Court Conference had a representative help present a program several years ago with a judge and an attorney who represents attorneys charged with misconduct. The program dealt with ethics and used movie clips as a means of showing examples of lawyer conduct. The program was well received. How to deal with attorneys who have issues with drugs or alcohol dependence.

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* I was appointed to one of the several grievance committees and served as chair for a year. I am very familiar with the Bar's grievance procedures, however, I recently addressed the annual meeting of the FPAA on ethics and professionalism and was very, very surprised to learn that only a handful of attendees out of a group of 100 was familiar with the Bar's grievance procedures. It would be helpful to have The Florida Bar enumerate specific categories within which a sitting judge is mandated to report attorney misconduct and to identify those areas of attorney misconduct in which a judge has discretion not to refer the matter to the Bar. Many judges realize the serious impact which a judge's referral carries and, I believe, decline to take any action for perceived violations of the Code of Professional Conduct. I have personally not had to make any such referral during six years on the bench, but have found other effective means by which to address any problems presented by counsel. It would be helpful to understand the discipline procedures, and perhaps have the court system and the Bar work together to develop a streamlined, uniform system for referrals. It would be nice to have a 1-800 hotline system, or a confidential website, perhaps just for judges, to report not only disciplinary lapses, but also unprofessional conduct. Frankly, I have no idea what the current procedure is for reporting a disciplinary violation. Often, I have been tempted to overlook conduct which I perceived as unprofessional, in order to move the docket, or to give the attorney room to grow while counseling them. There is also the unfortunate specter of retaliation by lawyers encouraging an opponent to challenge the judge during the judge's next election cycle. This circuit is currently experiencing more challenges in judicial races in recent years. The individual judge uses primarily his or her own financial resources to deal with challengers and maintain the integrity and independence of the judicial office. There is an inherent risk as these challenges become more common, that judges will become more lenient with lawyers so as to not incur hard feelings and election opponents. I don't know if the Bar can help individual judges with that problem. However, it would help to know the disciplinary procedures very clearly, and also to know that referrals for disciplinary conduct problems will be dealt with in a manner which clearly supports the judiciary's role in monitoring attorney conduct. The level of professionalism in newer members of the Bar is appalling. The level of understanding of basic rules and statutes is equally appalling. As a judge, I am often in a quandary about how to handle the matters where the lawyers are clearly over their heads, not truly assisting the client in any way because they are either unable or just want to run up fees. A seminar as to what the judiciary could, and/or should, do in these instances would be most helpful! We have had sessions on the Bar discipline system at judicial conferences over the years. It is always helpful to remain up to date.

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Positive Commentary About the Process (9 Responses) * I am very grateful for the support provided to judges who are appointed as referees. Anything that the Bar can do to make our procedural handling of these "out of the routine" matters is appreciated. I have always been impressed with the Bar's disciplinary system. I have both referred a matter to the Bar, and been a referee in a lawyer discipline matter. The same Bar counsel handled both matters with the utmost professionalism. She kept me up to date, and made the whole process a pleasure. That person has been a speaker for our local Bars and our Inn of Court, and is always well received. If the rest of the Bar counsel handle their matters like she does, we are in good hands. I have never had any problems with Florida Bar members and your procedure for discipline. Having sat on one hearing, I have found the staff to be professional and having the knowledge to perform their duties. I really don't have any comments. They do a good job. I was satisfied. Everything was handled very professionally. Most Bar grievance maters that I have personally handled as a Referee have been necessary and warranted for the effective enforcement of the Florida Bar Rules of Professional Responsibility. I have found the professionalism of The Florida Bars prosecutors to be of the finest order. I would not change a thing with the manner of current Florida Bar discipline which is the benchmark for state Bar associations nationwide. My experience with the discipline system has been fine. I may not agree with the outcome but it is not my place to determine the outcome. Of the two cases that I have referred, one case was just submitted so no action by the Bar has taken place. I am satisfied that appropriate action was taken in the other case.

* *

* * *

Lack of Communication (6 Responses) * A suggested standard operating procedure should include providing feedback to a judge who has referred an attorney to The Florida Bar's discipline system (if not already SOP). I have often heard judges lament that they have referred an attorney to the Bar and then never heard anything as to the outcome of their referral. If the Bar keeps statistics on judicial referrals, could that information be provided? After I took the time to file a grievance, I would expect the Bar to at least speak to me.

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Candidly, I think your discipline system is a joke. I once filed a very detailed complaint with the Bar against a lawyer. It took me over a month to draft the complaint and obtain the necessary paperwork to document the complaint. The Bar lawyer never spoke with me about the case, never consulted me about the disposition, and would not return phone calls. I heard the disposition that she worked out from some lawyers at the local State Attorney's Office. I have never filed one since. I would not waste my time again. I am not sure why the Bar never notified me about what transpired with the case. I referred an attorney for outrageous behavior and then never heard a word back. Six months later I had my Judicial Assistant check and I found out that no action was taken. I am quite taken back by this. My lone experience was not a good one because of poor communication.

* *

Never Referred a Case (2 Responses) * * Fortunately, I have not had to refer anyone for discipline. Never had to utilize the discipline system.

Miscellaneous (8 Responses) * Discipline system seems to run well in cases I have been involved with but the one area where I think there is a deficiency is the referee's inability in appropriate cases to appoint an Independent Medical Examiner (in situations where lawyer has a serious health issue such as a heart condition) and an Independent Psychological Evaluation and the funds necessary to pay the expert. I believe that most issues of professionalism can be handled at the local level with a frank discussion with the lawyer(s), usually behind closed doors. If this method is ineffective or inappropriate, I prefer to see the matter dealt with in our local bench-bar committee. I think the Bar's involvement should be more limited so as to be able to focus more effectively on the more serious allegations. I understand that there is now a mediation process available. I think this is a good idea. In addition to complaints, I have had concerns about attorney competence. Age, mental health, and personal stress, have each been issues I took into account in forgiving some past attorney misconduct. It would be helpful if the Bar had an office that would reach out to individuals who might not recognize the need to retire, seek help or take a break.

* *

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* It still seems to be the hardest part of all is getting in. Our lawyers seem to have issues that need to be addressed, and can't be until things have gotten vastly out of hand. In large part, that is because lawyers are what they are and tend to be defensive about their own actions, critical of others. It is a shame to watch a lawyer failing to address his or her particular issues until they have reached rock bottom and have no choice but to crawl up from the bottom of the well... but I have no suggestion or solution on how to fix this problem. The discipline system is very difficult to use. It should be simplified and a more streamlined process substituted for the one in place. The main problem with a referral (for instance a letter to the attorney with Bar carbon copy) is the Judge is subject to deposition & trial, as opposed to a simple order which suggests an investigation. This needs to be addressed. Typical of the discipline system is conversion of Trust Account funds and inadequate communication with a client. While appropriate in most Trust Account matters, the penalties can be too harsh in certain instances. Jurists are becoming reluctant to report known litigation misconduct for several reasons. Paramount is the lawyer that will use the process to recuse the reporting judge - in effect to gain the advantage of judge shopping. Increasingly, counsel will fail to timely comply with court orders intended to manage and advance litigation in timely fashion. Bar referrals simply further delay the litigation, present tools for judicial correction via sanctions of further delay proceedings to the prejudice of at least the opposing side as well as operating to cause added costs to the non-compliant party. While a general "dumbing down" of trial practice has become manifest in the past decade; there seems to be no viable rule/Bar enforcement of counsel 'try their case' in the hallway or the media. In that connection, use of Facebook to criticize the legal process or a jurist has become rampant.

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Appendix F

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Results of the Survey on The Florida Bars Disciplinary System

(U.S. District Court and Bankruptcy Judges)

January 2012

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SAMPLE

In addition to the survey that went to Circuit Court, County Court, and District Court of Appeal Judges, a separate survey was sent to Federal Judges (U.S. District Court and U.S. Bankruptcy Court). With the exception of one question being slightly different, the questionnaire was almost identical to the one sent to the other judges. This survey was sent via a Florida Bar email that contained a link to the electronic survey. A total of 31 U.S. District and U.S. Bankruptcy Judges would be invited to participate. By the cutoff date of December 23, 2011, 25 completed questionnaires had been received for a response rate of 81%. The Florida Bar's Department of Research, Planning & Evaluation coded and categorized all qualitative questions in the survey, verified data for accuracy and completeness, and applied the appropriate statistical tests to the data. In reporting the results, all percentages were rounded to the nearest whole percent (example: 74.5% equals 75%). For this reason, totals will vary from 99% to 101%. Several measures of central tendency are mentioned throughout this report: Mean: The average for all values given for the total sample of each question. The mean is calculated by adding the values of all responses, then dividing by the number of responses. Example: Five responses (10, 1, 2, 2, 20) are reported. The average, or mean is calculated by adding 10 + 1+ 2 +2 + 20 = 35 and then by dividing by the number of responses (5). Thus the average is 35 divided by 5 = 7.

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Range: the highest and lowest values provided by the total sample for a particular question. In reporting the results, all percentages were rounded to the nearest whole percent (example: 74.5% equals 75%). For this reason, totals will vary from 99% to 101%.

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Results of the Survey on The Florida Bars Disciplinary System (U.S. District Court and Bankruptcy Judges) 1. Have you referred any cases involving lawyer conduct to The Florida Bar in the last five years? Category Yes No *
(n=25)

Percent 32 68

Nearly one-third (32%) of all respondents have referred a case involving lawyer conduct to The Florida Bar in the last five years.

2.

Please indicate the total number of cases that you have referred over the past five years. Category 1 2 3 4 or 5 6 to 10 More than 10 Mean = 3 Median = 2 Range = 1 to 15
(n=7)

Percent 43 29 14 0 0 14

3.

After you referred the matter(s) to The Florida Bar, did you ever receive a phone call from an attorney handling the case for the Bar? Category Yes, in all instances Yes, in some instances No
(n=7)

Percent 43 14 43

Over two-fifths (43%) of respondents who have filed a case report that, in all instances, they received a phone call from a Florida Bar attorney who was handling the case. Over two-fifths (43%) report that they never received a phone call.

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4. If the case(s) did advance beyond the Intake level (to a Grievance Committee or further), were you asked by The Florida Bars attorney whether you wanted to receive updates or copies of the documents? Category Yes, in all instances Yes, in some instances No *
(n=5)

Percent 20 40 40

When considering only those cases that went beyond the Intake level, one-fifth (20%) of respondents report that, in all instances, The Florida Bars attorney asked whether they wanted to receive updates or copies of documents. Two-fifths (40%) report that The Florida Bar attorney asked in some instances, while two-fifths (40%) report that the Bars attorney did not ask.

5.

If you asked for updates or copies of documents, did you receive them? Category Yes, in all instances Yes, in some instances No
(n=3)

Percent 67 0 33

Two-thirds (67%) of respondents who asked for updates or copies of documents report that they received them in all instances, while one-third (33%) report that they did not receive updates or copies.

6.

If the Supreme Court issued an Order or Opinion on the case(s) you referred, were you given a copy of the Order or Opinion? Category Yes, in all instances Yes, in some instances No
(n=2)

Percent 50 0 50

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7. Please indicate your overall perception of how courteous and professional Florida Bar attorneys were during any communications. Category Very courteous/professional Somewhat courteous/professional Neutral Somewhat discourteous/unprofessional Very discourteous/unprofessional I did not communicate with a Florida Bar attorney
(n=7)

Percent 57 0 0 0 0 43

8.

Please indicate your overall level of satisfaction with the amount of communications that you received from The Florida Bar. Category Very satisfied Somewhat satisfied Neutral Somewhat dissatisfied Very dissatisfied
(n=7)

Percent 29 0 14 43 14

A higher percentage of respondents report that they are dissatisfied (57%) with the amount of communications received from The Florida Bar, as compared to those who report that they are satisfied (29%).

8a.

If dissatisfied with the amount of communications that you received from The Florida Bar, please explain: A total of two responses were received:

* *

Nothing received. There was extremely little communication.

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9. Please indicate your overall level of satisfaction with the quality of communications that you received from The Florida Bar. Category Very satisfied Somewhat satisfied Neutral Somewhat dissatisfied Very dissatisfied *
(n=7)

Percent 29 0 14 43 14

A higher percentage of respondents report that they are dissatisfied (57%) with the quality of communications received from The Florida Bar, as compared to those who report that they are satisfied (29%).

9a.

If dissatisfied with the quality of communications that you received from The Florida Bar, please explain: A total of two responses were received:

* *

I really didn't hear much back about the case. Nothing received.

10.

Were you satisfied with the disposition of the referred case(s)? Category Yes, in all cases Yes, in some cases No
(n=7)

Percent 14 14 71

Fourteen percent of respondents are satisfied, in all instances, with the disposition of their referred cases, while nearly three-quarters (71%) of respondents report that they are not satisfied.

10a.

If dissatisfied with the disposition of the referred case(s), please explain: A total of three responses were received:

I wasn't advised regarding the disposition.

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* In only one case, on reviewing the referee's opinion, he appeared to miss the key issue which was whether the lawyer should be sanctioned for misrepresentations before the magistrate judge. However, I do not know what was presented to him so I cannot say if the problem was in the presentation of the case or the referee's understanding and application of the law, or that my own review of the magistrate's report the and recommendation was erroneous. No one ever got back with me on one case and I don't know why no cause was found.

11.

How interested would you be in having The Florida Bars personnel discuss Bar procedures and the discipline system at judicial education programs? Category Very interested Somewhat interested Neutral Somewhat uninterested Very uninterested
(n=24)

Percent 13 42 21 4 21

Over half (55%) of respondents would be interested in having The Florida Bars personnel discuss Bar procedures and the discipline system at Judicial education programs, while one-quarter (25%) report they would not be interested.

12.

The Commission is very interested in any comments that you may have about The Florida Bars discipline system and your experience(s) with it. Please utilize the space below to provide us with your comments. A total of seven responses were received:

A better job needs to be done at the investigatory level. While counsel was professional and courteous, I did not feel that they were responsible in conducting the investigation. I have had no experience with The Florida Bar's discipline system in the past five years, so I cannot comment. I have not had any experience but would be very interested in learning more about it. I have not referred any matters to The Florida Bar but I have referred attorneys to our Grievance Committee in the Southern District of Florida. Often times it is for remedial training.

* *

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* I know that the debtors and creditors who appear before me have had bad experiences with lawyers and have uniformly expressed dissatisfaction with the way the Bar handled their complaints. This is something we need to work on. Perception is so important. It would be useful to have interactive programs where practitioners could learn first-hand the type of professional behavior expected and required of lawyers appearing in federal court. Would like to compliment the Bars staff for their dedication and professionalism.

13.

Within which of the following districts do you serve as a federal judge? Category Southern District Middle District Northern District
(n=23)

Percent 30 30 39