By Noreen Marcus, FloridaBulldog.org
When longtime attorney Robert Kerrigan set out to file his first ever misconduct report against another lawyer, he hit a snag that he believes artificially limits the number of complaints the Florida Bar investigates.
He resolved to do something about it. But before Kerrigan could formulate a proposal for change, and without his knowledge, a Florida Bar committee grabbed one of his emails to Bar staff complaining about the problem and repurposed it into an unworkable “proposal,” then unanimously shot it down.
Oops!
On March 27 the Bar’s Disciplinary Procedure Committee considered doing away with the mandatory oath on lawyer-complaint forms affirming that the contents are “true, correct and complete.” The oath troubles Kerrigan, a Pensacola trial lawyer, but he doesn’t want to drop it, he wants to supplement it.
Falsifying a claim in an ethics complaint is perjury. Eliminating the oath might encourage anybody with a beef against a lawyer to file a fabricated complaint, knowing there would be no penalty for lying.
Kerrigan wants to add language to the oath aimed at preventing lawyers accused of misconduct from fighting back with false perjury claims.
“This is an embarrassment,” Kerrigan said when Florida Bulldog showed him the minutes of the March 27 meeting. The Bar shared them with the news outlet in response to questions raised by Kerrigan’s story.
Bar spokeswoman Jennifer Krell Davis defended the committee’s action, saying it “considered the correspondence sent by Mr. Kerrigan and the relevant rules.” Asked if the committee would admit an obvious error, she replied, “The committee considered what was provided.”
SEE SOMETHING, SAY SOMETHING
Overall, Kerrigan’s attempt at reform has been a strange encounter with the Florida Bar’s rule-tweaking process. That’s one of the Bar’s functions as the Supreme Court’s official investigator of unethical conduct.
In a self-regulating system, lawyers must report suspicious conduct – if they see something, they’ve got to say something.
“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer … shall inform the appropriate professional authority,” says Rule 4-8.3 of the Florida lawyers’ ethics code.
What Kerrigan didn’t know, up until he filed his misconduct report this year, was that he’d be required to swear the report was “true, correct and complete.” If it wasn’t, he could face a perjury prosecution.
Kerrigan balked at signing the oath because he felt it would invite the accused lawyer to make a bogus perjury claim, he recounted in interviews with Florida Bulldog.
“If the goal is to protect the public from lawyer abuses, this requirement is having the opposite effect,” Kerrigan wrote to a Bar counsel. “Reaching a conclusion that no one would ever be prosecuted for reporting unethical conduct by their lawyer might have been true in the past. It isn’t now.”
Kerrigan had been approached by the grandfather of a 21-year-old man who thought he was treated unfairly in a wrongful death case. (Florida Bulldog is not identifying the case or the lawyer to protect their privacy.) In February he sent the Bar a detailed report of the suspicious conduct he’d uncovered plus 23 pages of documentation.
Kerrigan claimed the young man hadn’t heard from his lawyer for the six years that a complaint based on his mother’s wrongful death was pending. After a trial the jury awarded him nothing and gave his two half-brothers, who unlike him had testified, $2 million apiece.
‘TRUE, CORRECT AND COMPLETE’
Kerrigan found the Bar’s response surprising: His report would be tossed unless he swore his statement was “true, correct and complete.” Or, the young man he had been retained to help could sign the same oath and file his own complaint.
Kerrigan is fine with the “true” part. But he says the “correct and complete” language is ambiguous and thrusts lawyers into Catch-22 territory. They’re duty-bound to file a misconduct report yet if they do, or if they encourage a client to swear out a complaint, the oath-taker could get slammed with a perjury allegation.
“The accused lawyer could claim the complaint wasn’t ‘complete’ and cause the complaining party to be criminally charged,” Kerrigan said.
“The accused lawyer could usually find some error of a fact cited or that the sequence of events reported was not ‘correct,’ “ he said.
“The client felt he got poor treatment by his lawyer. He reports it to the Bar by signing the oath they require and then he gets criminally charged or indicted.
“Bottom line: Exercise great caution before you file a sworn complaint against a lawyer with the Florida Bar,” Kerrigan said.
A Bar counsel indicated his report would disappear unless he signed the oath.
“If you do not complete and return the oath form to us, this office will be unable to proceed with the investigation and the file will be closed,” Francisco-Javier Digon-Greer wrote in an April 1 email to Kerrigan.
Since he hasn’t done so, presumably no one at the Bar has reviewed Kerrigan’s report and documentation. And the young man’s former lawyer can go about his business free of a worrying Bar investigation.
THE PROBABLE CAUSE TEST
Tallahassee appellate lawyer Philip Padovano criticized how the Bar uses the oath requirement in an interview with Florida Bulldog.
“I don’t agree with that at all. That’s the wrong approach,” said Padovano, a retired appellate court judge.
“The Bar has a duty to investigate” reports and complaints of lawyer misconduct if they meet the low threshold of probable cause, as with police, prosecutors or any other investigative body, he said.
“The authority to investigate doesn’t depend on the input of citizens,” Padovano said.
He called the Bar’s refusal to investigate alleged misconduct that passes the probable cause test because of an unsigned oath “troublesome.”
“It’s fair to conclude that this makes it harder for people who are out there on the ground observing these things to make Bar complaints,” Padovano said.
JUDICIAL-PROTECTION OATH
Kerrigan was admitted to the Bar in 1971. He known for his pro bono work and for his role on the so-called “dream team” that in 1998 secured Florida’s $13-billion share of a national settlement with Big Tobacco meant to recoup the healthcare costs of smoking.
When the oath issue stalled Kerrigan’s report, he didn’t publicly “disparage” the Bar — a possible ethics code violation all by itself. He suggested a rule change to solve the problem of stifling legitimate complaints against lawyers.
Kerrigan sent an email to Bar counsel Patricia Savitz on March 28 urging consideration of a more “appropriate” oath. It would incorporate part of the oath judges sign on their financial disclosure forms, apparently to avoid trouble for errors in reporting gifts.
The judge must swear “that the facts set forth … are true, correct, and complete to the best of my knowledge and belief,” according to Canon 6 of the Code of Judicial Conduct.
The phrase “to the best of my knowledge and belief” provides some leeway for judges to make honest mistakes and softens the “true, correct and complete” requirement. Kerrigan argues the same should hold true for complaints against lawyers.
Unbeknownst to him, on the day before Kerrigan sent his suggested fix to Savitz, the Bar’s Disciplinary Procedure Committee had rejected the idea of dropping the oath.
The committee apparently took Kerrigan’s so-called proposal from a March 5 email to a Bar counsel in which he criticized the oath generally.
WILL BAR GET IT RIGHT?
“The Bar is wrong,” Kerrigan wrote to Roland Sanchez-Medina Jr. “The Bar has created a Catch-22 choice for lawyers who learn of serious misconduct by a Florida lawyer. I filed a detailed report of unethical conduct that I believe to be accurate, as I was required to do.
“The fact that the Florida Bar won’t investigate absent a sworn statement that the facts are ‘true, correct and complete’ is a poor message to the public regarding the discipline of Florida lawyers who harm the public,” he wrote.
Weeks later on April 14, Elizabeth Clark Tarbert, director of the Bar’s Division of Lawyer Regulation, informed Kerrigan in an email that the committee had “reviewed your proposed amendments” and disposed of them with a 10-0 vote. That’s all she wrote.
The decision came out of nowhere. “I was never contacted by any member of the committee,” Kerrigan said.
Now that he knows exactly what committee members reviewed, he said, “my comments and suggestions were dismissed and mischaracterized.”
Kerrigan said he’d like to see the Bar committee correct the mistake. “It is the oath that’s the problem.”
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