'Eternal Vigilance': Time for Change?

'Eternal Vigilance': Time for Change?

As the Florida Bar re-examines its discipline system for the first time in 15 years, a former bar prosecutor wages an unusual battle in federal court. He alleges back-room dealings for well-connected lawyers.

By Janet Leiser

Managing Editor

Tampa attorney Brett Geer worked as a Florida Bar prosecutor for six years, aggressively going after more than 50 lawyers accused of wrongdoing, including St. Petersburg lawyer Philip Dann, Tampa lawyer Domenic Massari and Sarasota lawyer Daryl J. Brown.

Geer, known for his "bulldog" tactics, refused to back off when the going got tough.

Then came Brown, an attorney with Brown Clark Christopher & DeMay. He was suspended in July 2001 from practicing law for 90 days for violating political campaign laws.

In October 2001, Geer started another investigation against Brown, looking into whether Brown practiced law while suspended. In response, Brown's attorney, Scott Tozian of Tampa, complained to Susan Bloemendaal, the Florida Bar's Tampa manager, and Tony Boggs, who's in charge of lawyer regulation, according to court records.

Geer alleges in court records that Bloemendaal acquiesced to Tozian's demands by removing Geer from the Brown case.

"I objected and explained that to condone such tactics made the Florida Bar look like a club where well-connected lawyers can call up and get special treatment or special favors," Geer says. "I said that the bar must avoid creating such an impression at all costs, precisely because we lawyers are the only profession that presumes to regulate itself."

Geer threatened to sue Brown and Tozian for "defaming his business reputation," and talked of unionizing the bar's lawyers, he says. Days later, in November 2001, Bloemendaal fired Geer.

Free speech?

Now Geer claims the bar violated his First Amendment right to free speech regarding a matter of public concern - the self-regulation of lawyers.

As Geer takes his fight to federal court in Tampa, the bar is in the process of re-evaluating its lawyer discipline system. Jacksonville lawyer Henry Coxe III, a criminal defense litigator, has been appointed chair of the bar's Special Commission on Lawyer Regulation (see list of members), which last month sent out 14,000 surveys, including 6,209 to complainants. Responses are due back March 31.

The evaluation, originally expected to take a year, is now expected to take as much as two years because of the many concerns that have been raised.

Is there any substance to Geer's claim that Florida's lawyer discipline system is rife with back-room dealings where members can plead their cases to the bar hierarchy instead of in court?

Bloemendaal referred questions on the Geer incident to Kevin Johnson of Tampa's Thompson, Sizemore & Gonzalez PA, which represents the bar in the federal case. Johnson says the bar expects to prevail at the trial scheduled for June in front of U.S. District Judge James D. Whittemore.

"We don't believe the bar's decisions violated the First Amendment in any way," Johnson says.

The bar "did nothing more than attempt to hold (Geer) to the same standards that any reasonable employer would expect of its employees," according to the defendants' motion to dismiss Geer's complaint, which "is motivated by nothing more than Geer's desire to retaliate against the bar defendants by subjecting them to harassing litigation."

Self-regulation

Although Geer may find some support in the Legislature and among consumers and attorneys for his claims, most lawyers say the state's lawyer discipline system is the finest in the nation. HALT, a Washington-based consumer advocacy group seeking legal reform, gave Florida the second-highest grade, a C-plus, in the nation in 2002 for lawyer regulation. Massachusetts was first.

William Reece Smith, past president of the Florida Bar and the American Bar Association, is one who says Florida has one of the best lawyer regulation systems. "A noble effort, a valiant effort is being made. The Florida Bar and Florida lawyers care," says Smith, chair emeritus of Tampa's Carlton Fields PA and a professor at Stetson University College of Law.

How many other professions, Smith asks, spend as much as half of their annual budget on discipline? Last fiscal year, about $9.9 million, more than half of the bar's $18.6 million budget, went toward self-regulation, says Boggs, the bar's director of lawyer regulation. About $10.1 million is expected to be spent this year.

Smith concedes the system can be improved, adding: "When people say the bar is doing too much disciplinary work, the bar ought to back off and not push us lawyers around - my reaction to that is phooey. We're not doing enough. We ought to be doing more."

David Ristoff, who as a Florida Bar prosecutor sought and obtained the disbarment of famed lawyer F. Lee Bailey, says, "I think it's the best system in the country. I absolutely believe that it does work. I don't believe there is any evidence of abuses in the system."

Ristoff, who supervised Geer, prior to going into private practice in 2000 at New Port Richey's Williams, Ristoff & Proper, has been told he'll be called as a witness at Geer's trial.

Geer initially sued Tozian and Brown in circuit court in Sarasota, but that case was dismissed. He appealed the dismissal and the 2nd District Court of Appeal's per curiam decision to affirm the dismissal to the Florida Supreme Court, which denied the motion for rehearing in August.

He filed the federal case in January 2003.

'Accuse the accuser'

In Geer's petition for writ of certiorari to the Supreme Court, he states: "Such behind-the-scenes gamesmanship adversely affects the bar's ability to regulate its members ¦ and it goes on more often than this court imagines or the bar is willing to admit. For the wily defense counsel, these out-of-court tactics can alter the course or the outcome of attorney disciplinary cases. This 'accuse the accuser' tactic is usually directed only against the bar's most effective prosecutors ¦ For a respondent, the smart play is to hire a lawyer who has (or seems to have) special access to, or a special relationship with, bar management. This describes Mr. Tozian."

Tozian, nor Brown, returned telephone calls for comment prior to GCBR's deadline. The judge dismissed Tozian from the federal suit in which Brown wasn't named. Geer responded to requests for comment with a written statement, saying, "In a very real sense, I am up against the entire legal profession of this state."

Geer, who represents himself, writes in the Supreme Court petition, "It is ironic that the very worst rap against lawyers - that they are willing and able to corrupt the administration of justice to benefit their clients at the expense of truth and justice - even infects the attorney disciplinary process. This is the ugly truth which the bar would rather not have publicized."

Disparate punishment

Lou Kwall, a Clearwater lawyer and member of the Florida Bar Board of Governors, says the system can be improved upon, but it works fairly well.

One criticism Kwall says he hears is that punishment is disparate and that investigations usually take too long. Lawyers, who are eventually disbarred, sometimes practice for years while under investigation and prior to the high court's final decision.

For instance, there was much discussion in the legal community about the discipline of Louis Robles, a Miami lawyer who was the subject of 50 complaints prior to his disbarment. Robles, a mass tort lawyer, was disbarred for misappropriating more than $800,000 from clients' trust funds.

"If we didn't disbar him then we should just take disbarment out of the book," says Kwall.

Guarding the henhouse

Some Republican lawmakers have questioned the lawyers' self-regulation. Rep. Fred Brummer in 2002 proposed a constitutional amendment to take lawyer regulation away from the bar and Florida Supreme Court, which makes the final decision in all disciplinary matters. Brummer, who calls the bar the "attorneys' union," told legislators that Florida's system was worst than the hen guarding the hen house, it was akin to the fox deciding when the hens come and go.

"There's a problem with regulating yourself. That's not regulation," says John Byrd, a legislative aide to Brummer.

"That's baloney," Ristoff said of the suggestion that the Legislature should oversee the discipline system. "Look at the schools. They would never fund it (discipline system) the way the bar does."

Former Florida Bar President Terry Russell says self-regulation is a misnomer since the Supreme Court decides all disciplinary matters, not the bar. "I would never change that," Russell says of self-regulation. "To me, that has been the strength of the Florida Bar."

The bar's board of governors will review the special commission's findings and make a recommendation to the Supreme Court. The high court makes the final decision.

Smith, who has practiced law for 53 years, says, "I applaud the study that is being done by the Florida Bar. I think it's part of our eternal vigilance."

And "eternal vigilance is the price of liberty," Smith says, quoting Wendell Phillips from the early 1800s.

The Florida Bar Disciplinary Statistics

Fiscal Year'96-'97'97-'98'98-'99'99-'00'00-'01'01-'02'02-'03

Bar Population56,37958,10859,74161,01462,72262,99972,933

Fees$11,712,230$11,853,617$12,153,000$12,532,469$12,859,897$17,756,501$18,592,995

Cost of Discipline$5,993,790$6,531,585$6,719,843$7,149,218$7,765,503$8,320,650*$8,427,258

Dues to Discipline51.18%55.10%55.29% 57.05%60.39%46.86%45.32%

Cost Per Member$106.31$112.40$112.48$123.83$123.81$140.49$115.55

Disbarments36322935382040

Suspensions127150144132155133116

Public Reprimands66604943576943

Disciplinary Resignations36384430382926

Admonishments88626657705270

Probations7173719311410988

Injunctions4201021

Total Final Orders428417403391472414384

Cost Per Sanction$14,004$15,663$16,675$19,323$16,452$21,482$21,945

Files Opened9,4369,3179,1019,4919,2808,6918,671

Source: Florida Bar Online *Figure has since been updated.

Lawyer regulation

Attorney David Ristoff of Williams, Ristoff & Proper, New Port Richey, the former Florida Bar attorney who prosecuted the famed F. Lee Bailey, who was disbarred in Florida.

Tampa attorney Scott Tozian, who represented Daryl J. Brown, was named as a defendant by Geer in the federal case. He has since been dismissed as defendant by the court.

Sarasota attorney Daryl J. Brown of Brown Clark Christopher & DeMay was involved in the Florida Bar case that led to Brett Geer's resignation.

Rep. Fred Brummer, R-Apopka, in 2002 proposed a constitutional amendment to take lawyer regulation away from the bar, which he calls the "attorneys' union." He received little support.

The Special Commission

Four Tampa Bay area professionals were appointed to the Florida Bar's Special Commission on Lawyer Regulation, which will suggest changes to the state's lawyer regulation system.

Those members include:

× Pinellas-Pasco Circuit Judge Lynn Tepper, who presides in Dade City;

× Stetson University College of Law Professor Stephen M. Everhart;

× Leo J. Govoni of Boston Asset Management, St. Petersburg;

× Timon V. Sullivan of Ogden & Sullivan PA, Tampa.

Other members are:

× Chairman Henry M. Coxe III of Bedell Dittmar Devault et al, Jacksonville;

× Vice Chair Henry Latimer of Greenberg Traurig PA, Fort Lauderdale;

× Maj. Best Harding, a retired Florida Supreme Court justice and a member of Ausley & McMullen, Tallahassee;

× 1st District Court of Appeal Judge Charles J. Kahn Jr., Tallahassee;

× 4th District Court of Appeal Judge Barry J. Stone, West Palm Beach;

×11th Circuit Judge Michael B. Chavies, Miami;

× Steven Elliot Chaykin of Zuckerman Spaeder LLP, Miami;

× Anita M. Cream of the U.S. attorney's office, Orlando;

× Don L. Horn of the state attorney's office, Miami;

× Evan Richard Marks of Marks & West PA, Miami;

× Richard C. McFarlain of McFarlain & Cassedy PA, Tallahassee;

× John A. Noland, Fort Myers;

× Edith G. Osman of Carlton Fields PA, Miami;

× David Bill Rothman of Thornton & Rothman, Miami;

× Paul J. Scheck of Shutts & Bowen LLP, Orlando;

× William C. Vose of the 9th Circuit state attorney's office, Orlando;

× William P. White III, an assistant public defender, Jacksonville;

× Kathleen Williams, a federal public defender, Miami;

× Kelly Overstreet Johnson of Broad and Cassel and president-elect of the Florida Bar, Tallahassee.