By Noreen Marcus, FloridaBulldog.org
Although the Florida Bar pledges to safeguard the public by “prosecuting unethical attorneys,” it gives lawyers holding public office a free pass when they are accused of ethical wrongdoing.
The Bar refused to touch complaints lodged against two high-profile Florida lawyers, U.S. Sen. Ashley Moody and U.S. Attorney General Pam Bondi – Moody in 2021, when she was Florida’s attorney general, and Bondi most recently in June.
A rule based on a secret state Supreme Court order protected Moody, who was elevated to the U.S. Senate this year after Marco Rubio joined President Trump’s Cabinet, and an unwritten policy covered Bondi. In Bondi’s case the Bar renamed an “ethics complaint” an “inquiry” and treated the 19-page document as casually as a request for directions to the Bar’s Tallahassee office.
Rules, policies and word games are poor excuses for letting lawyers who are also politicians avoid scrutiny; they mask what Bar critics call a total lack of accountability.
“It’s absurd to require ordinary lawyers to follow basic ethical requirements but to exempt lawyers who are public officials with enormous responsibilities and who should be required to fulfill their public trust,” said Bennett Brummer, Miami-Dade’s chief public defender for over three decades until his 2009 retirement.
When the Bar rejected the third Bondi complaint this year, the signers – a coalition of 70 former jurists, prominent lawyers and law professors – asked the Florida Supreme Court to order an ethics investigation that could result in her disbarment.
Their complaint accuses Bondi of directing Justice Department lawyers to ignore ethics and professionalism “in order to zealously pursue the President’s political objectives – and if they fail to do so, they will be disciplined or fired.”
She followed through by, among other things, firing a prosecutor for speaking truth to a Maryland federal judge in the Kilmar Abrego Garcia case, the complaint says. The construction worker and father of three was “mistakenly” sent to an El Salvador prison that’s notorious for torturing inmates: CECOT (the Terrorism Confinement Center).
In June Abrego Garcia was returned to the U.S., immediately charged with alien smuggling and jailed in Nashville. As of last week he was the subject of a tug-of-war between the Justice Department and federal judges in Nashville and Baltimore who want him released from pretrial detention and reunited with his family in Maryland. “He will never go free on American soil,” a government lawyer vowed.
On Tuesday lawyers representing Abrego Garcia in his Nashville criminal case accused Bondi’s Justice Department of prosecuting him not because he committed a crime, but because he fought his illegal deportation.
NEXT STOP: FEDERAL COURT
The coalition pushing for a Bondi investigation in Florida filed a separate ethics complaint against her in Maryland federal court, where Abrego Garcia’s wife has an ongoing civil case. Maryland attorney-discipline rules allow the investigation and prosecution of public officials like Bondi.
“She has taken an oath to uphold the Constitution of the United States and I think she has breached that obligation,” Jeffrey Swartz said, explaining why he signed the Bondi complaint. Formerly a Miami-Dade County Court judge, Swartz teaches at Cooley Law School in Tampa.
The coalition’s request for a Bondi investigation awaits a ruling by the Florida Supreme Court. Close observers give the coalition little to no chance of persuading the justices to rethink the Bar’s hands-off-politicians attitude.
Six of the seven justices usually rule in line with the right-wing extremism Trump promotes and Bondi enforces. Their Republican ally Gov. Ron DeSantis chose five of the seven, a supermajority.
“The Florida Supreme Court will make swift work of the motion and deny it regardless of the merits of the petition,” a lawyer who’s familiar with the Bondi challenge and not authorized to discuss it publicly told Florida Bulldog.
Then the coalition will make its case in federal court, according to the lawyer.
“Any hope of relief from the Supreme Court or anybody in Florida, other than someone with a lifetime appointment, is doomed to failure,” the lawyer said, adding that a federal judge with life tenure is more likely to hold a fair hearing.
THE SELF-PROTECTIVE BAR
There’s no daylight between Florida lawyers and the Florida Bar or the Florida Supreme Court. Every Florida-licensed attorney — a legion of over 113,000 — automatically becomes a dues-owing member of the Florida Bar. It’s not a voluntary association.
“You have to remember that the Florida Bar is a creature of the Florida Supreme Court and the Florida Supreme Court is very sensitive to certain kinds of political realities,” Jon May said. The Boca Raton criminal defense lawyer organized support for the Bondi complaint, which he helped draft and file.
Florida lawyers say they’re keenly aware that Bar staffers investigate and prosecute their peers, teeing them up for Supreme Court discipline. Some DeSantis-era Bar complaints have been criticized for the political bias that seems to propel them toward career-shattering sanctions.
The Bar protects itself, notably with a publicist to manage PR emergencies. “Help with crisis-related strategic counsel” is one of the duties listed in the $114,000 contract for fiscal year 2023-2024 between the Bar and Sachs Media Group, its PR agency of record.
And the Bar runs itself. While the state Department of Business and Professional Regulation oversees everyone from architects to veterinarians, Florida lawyers answer only to the state Supreme Court via the Bar.
So it’s not surprising when Bar leadership, the 52-member Board of Governors, tries to avoid leaving fingerprints on lawyer-ethics decisions they fear the general public will disapprove. That’s the backstory of the Bondi complaint.
Board members are sensitive to politics, Swartz, the Tampa law professor, said. “I see a lot of wheels turning here and a lot of possibilities.”
One complicating factor is Bondi’s reputed ambition for higher office, likely a governorship, Swartz said. “If she got disbarred, it would disqualify her to the voters. Her opponent would use that against her.”
WILL COURT AVOID POLITICS?
Given the political backdrop of the Bondi grievance, the Florida Supreme Court might find a technical off-ramp.
The justices could simply reject the coalition’s call for a Bondi investigation instead of answering this question: Should the Florida Bar ever investigate federal officials such as the nation’s chief law enforcement officer who also are members of the Florida Bar?
Former justice R. Fred Lewis, who was part of the Supreme Court’s liberal bloc before his 2019 retirement, offered reasons for steering clear of the main issue. Unlike his onetime allies, retired justices Peggy Quince and Barbara Pariente, Lewis did not sign the Bondi complaint.
“This more likely falls into the realm of political decisions which do not lend themselves to judicial involvement,” Lewis wrote in response to emailed questions from Florida Bulldog.
He found other flaws in the coalition’s request. “In my opinion, these types of problems have traditionally been addressed in actions by individuals directly harmed and damaged by the government action,” Lewis wrote.
None of the 70 lawyers, jurists and educators who signed the Bondi complaint claimed personal harm by her official acts.
But they do have a vested interest that’s evident in their partners’ names: Lawyers Defending American Democracy and Lawyers for the Rule of Law.
They might ask: If we can’t champion these values, who can?
AN UNWRITTEN POLICY
The Florida Bar Board of Governors probably is responsible for Bar staffers refusing to process the Bondi complaint in June; its involvement is murky.
Board member Leslie Rothenberg, a former Miami trial and appellate court judge, told Florida Bulldog during a brief phone call that the governors discussed the Bondi complaint.
She didn’t elaborate but referred a reporter to the Bar. Spokesperson Jennifer Krell Davis indicated that everything about grievance proceedings is deemed confidential – not only the content but even the logistics. Who, what, when and where questions went unanswered.
The timing – the Bondi complaint was filed on June 5 and rejected on June 6 – suggests a hasty online meeting. The Board of Governors needs a 27-member quorum to conduct Florida Bar business.
Curiously, though, the board isn’t mentioned in the closed Bondi file that the Bar released at Florida Bulldog’s request.
Judging from the 37-page file, the complaint reached no higher authority than the intake director of the Bar’s Attorney Consumer Assistance Program (ACAP).
In a three-paragraph email dated June 6, a Bar staff counsel told coalition lawyer Jon May that the Bar doesn’t investigate or prosecute lawyers “appointed under the U.S. Constitution while they are in office.
“Such proceedings by The Florida Bar, as an arm of the Florida Supreme Court, could encroach on the authority of the federal government concerning these officials and the exercise of their duties,” Bar counsel Francisco Digon-Greer wrote.
May tried an “informal appeal” that failed. “There is no appeal afforded to this closed file. You may refile your grievance once Ms. Bondi no longer serves in such position,” ACAP intake director Shanell Schuyler wrote in a one-paragraph July 7 email.
THE MOODY RULE
Florida Bulldog asked for the written grievance policy that applies to Bondi. Davis wrote back: “The letters closing out inquiries against U.S. Attorney General Bondi do not refer to a written policy.”
In a follow-up email to Davis, Florida Bulldog interpreted her statement to mean the policy is unwritten. Davis didn’t respond. An unwritten policy can be changed at will, without warning or explanation.
By any stretch, the policy covers only federal, not state, officials. But no problem, Florida officials received protection from Bar scrutiny four years ago.
In 2021 then-Florida Attorney General Ashley Moody joined 16 other Republican attorneys general supporting Trump’s narrative that President Joe Biden stole the 2020 election.
Their widely discredited lawsuit to overturn election results in four battleground states quickly tanked in the U.S. Supreme Court. After that Texas Attorney General Ken Paxton, the group’s leader, fought off multiple state Bar complaints targeting his election-denial campaign.
In early 2021 South Florida political activist Pam Keith collected more than 1,700 signatures on a virtual petition calling for Moody’s disbarment. Keith said Moody’s participation in Paxton’s lawsuit, “a purely GOP maneuver, is an outrage.”
Subsequently, ethics regulators in New York, California and Washington, D.C. disbarred former Trump lawyer Rudy Giuliani and others who tried to nullify Biden’s election.
A ‘VERY BAD’ PROPOSAL
The Florida Bar, however, didn’t investigate Moody. At about the same time, the Board of Governors helped sabotage any future attempt to discipline a state official who belongs to the Florida Bar.
The board urged the Supreme Court to adopt a rule “clarifying” what it called an existing policy against investigating office holders. The board traced the policy back to an extraordinary “confidential” Supreme Court order from 1982.
The Bar’s Public Interest Law Section strongly objected.
“The current proposal is a bad one. A very bad one,” Hallandale Beach lawyer Anthony Musto wrote. “This proposal is not good for lawyers, for constitutional officers, for the public, or for justice.”
The Supreme Court approved the rule anyway. It sets a six-year deadline for filing Bar complaints against state officials — after they leave office.
According to a Bar staff analysis that the Florida Bar News quoted in August 2021, “the clarification was necessary because the ‘current rule is unclear, and members of the public have questioned why the Bar does not discipline constitutional officers who currently hold office.’ ’’
They must still wonder why.
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