By Noreen Marcus, FloridaBulldog.org
Florida Bar leaders used a “confidential” Supreme Court order to justify an ethics rule that would protect lawyer/politicians like Attorney General Ashley Moody from Bar scrutiny as long as they hold office.
The high court could have released the order, which was apparently issued in 1982, but chose not to. Veteran attorneys and former Supreme Court officials confided to Florida Bulldog that they’ve never heard of the high court issuing or hiding a confidential order.
The secrecy creates a problem for lawyers who oppose the rule, which the Florida Bar Board of Governors supports, and the Supreme Court may soon adopt despite objections. It would shield from ethics inquiries constitutional officers including the attorney general, state attorneys, and public defenders, as well as, possibly, other state officials.
Members of the Florida Bar Public Interest Law Section (PILS) oppose the change but are at a loss to fully argue against it because they don’t know what the unpublished order says. Still, the section produced a critique of the rule proposal and filed it with the court on Dec. 28.
The public needs to know about an unethical official in order to “properly assess the performance of the official when he or she is up for reelection or seeks other office,” Hallandale Beach lawyer Anthony Musto wrote on behalf of the section he formerly chaired.
“Yet, if the current proposal is adopted, evidence of, and claims of, misconduct will remain buried. Guilty officials may well be reelected in situations in which they would (and perhaps should) have lost their elections had the public known the truth,” he wrote.
“The current proposal is a bad one. A very bad one,” Musto concluded. “This proposal is not good for lawyers, for constitutional officers, for the public, or for justice.”
FLORIDA AG JOINED ‘INSANE’ TEXAS SUIT
Since the rules proceeding could have a personal impact on Moody, the timing may not be coincidental.
In January a Texas state court judge refused to derail an ethics lawsuit against Texas Attorney General Ken Paxton. Lawyer regulators sued Paxton over the short-lived and widely discredited lawsuit he took to the U.S. Supreme Court in an effort to change the 2020 presidential election results in Georgia, Michigan, Pennsylvania and Wisconsin.
Moody was one of 17 Republican attorneys general who together filed a brief that endorsed Paxton’s argument: Democrats stole the election for President Biden in the four battleground states.
“The integrity and resolution of the 2020 election is of paramount importance,” Moody tweeted a month after the election to explain Florida’s role in the lawsuit.
Inter-office emails show lawyers who worked for Moody questioned the validity of Paxton’s lawsuit, calling it “bat[shit] insane” and “weird,” the Tampa Bay Times reported. The emails were obtained by American Oversight, a left-leaning nonprofit that promotes government transparency.
EX-JUSTICE WELLS SLAMS MOODY
Soon after the U.S. Supreme Court tossed Paxton’s lawsuit on Dec. 11, 2020, a former Florida Supreme Court justice denounced Moody in an open letter to her published by the Orlando Sentinel.
“Joining in the patently meritless case … brought discredit to your office, and results in the loss of confidence of citizens of our state and nation in the fair and competent administration of justice in Florida,” Charles T. Wells wrote.
“It is a grave mark against your service as Attorney General which I urge you to acknowledge, and work to repair the damage you have caused,” his letter states.
“You should do that not only because you are Attorney General. You should do that because you are a member of the Florida Bar who has an ethical obligation not to join in frivolous, meritless litigation,” Wells wrote.
Around the same time lawyer Pam Keith, a South Florida political activist, collected more than 1,700 signatures on a petition calling for Moody’s disbarment for her “conduct in violation of her oath of office.” Keith said Moody’s participation “in a purely GOP maneuver is an outrage.”
The Bar took no action against Moody. She may have outraged some Floridians but that didn’t matter at the polls. The attorney general easily won reelection in November.
ONLY ONE SIDE HAS SECRET ORDER
The Florida Bar contends that the hands-off exception to ethics oversight for legal officers is a longstanding unwritten policy. And to help “clarify” the policy for the public, the Supreme Court should adopt the Bar’s proposed rule.
Once these officeholders step down, the Bar would have six years to pursue complaints against them.
Indeed, The Florida Bar has never had a reputation for going after lawyer/politicians accused of unethical behavior. Nor has the state Supreme Court been known to issue or hide orders in the manner of a star chamber, a court that uses secrecy to mask arbitrary or grossly unfair actions.
The Public Interest Law Section only found out about the secret 1982 order because it pops up in a 2021 Florida Bar Journal article about lawyer discipline that the Bar cited in its rules petition.
Footnote 8 says this document, among others, supports the idea that “the Bar does not have disciplinary authority over a sitting judge or constitutional officer”: “In re Confidential Case No. 61,293 (Fla. Feb. 1, 1982) (prohibiting Bar and grievance committee from investigating or attempting to discipline state attorney).”
In Musto’s motion to obtain the order, he wrote that he asked Bar officials for a copy and they turned him down. He also sought more time to respond.
“The Bar’s unwillingness to provide the opinion or order is completely understandable,” Musto wrote. “Given this court’s designation of it as confidential, PILS realizes that the Bar cannot provide it unless this court enters an order allowing it to do so.”
The justices gave Musto a 30-day extension. At the same time, they denied his document request without explanation.
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