Thoughts on the "emperor complex," the "scorched earth policy," and lawyer professionalism.

• Author: Davis, Ella Jane P.
• Position: Florida

The other day another Division of Administrative Hearings (DOAH) Administrative Law Judge (ALJ) came to me about lawyer conduct that was not precisely dishonest, but was unprofessional and uncivil. My colleague and I had served on circuit grievance committees, and our combined experience told us there was no ethics rule that fit the situation.

A lot of what ALJs see today is reminiscent of "The Emperor's New Clothes." The emperor (new breed of lawyer) postures for the benefit of his subjects (naive clients and news media), while lawyers and judges with a little more trial experience and life experience feel like the kid who can plainly see the emperor is buck naked. "Awful, but lawful" behavior is clogging up the system of administrative law as surely as cholesterol from my daily french fries is clogging my arteries.

I once was willing to write off what I regarded as unprofessional behavior by lawyers because conventional wisdom held that administrative law is the "stepchild" of law practice, because there were so many recent law school graduates in the field, and because ours is a system intended to be sufficiently informal to deliver due process quickly. I am no longer willing to compromise this forum by making excuses for unprofessional conduct by lawyers, just-hatched or otherwise.

With the 1996 Administrative Procedure Act and new Uniform Rules, the time is ripe to forge civility standards for practice before DOAH, similar to those adopted for civil trial practice by the Trial Lawyers Section of The Florida Bar.

There is a big difference between aggressive legal practice, which is a lawyer's obligation and duty, and a scorched earth policy. Aggressive representation of one's client is a noble calling. It is the equivalent of taking your military objective and destroying the enemy's army. The scorched earth policy is the equivalent of burning homes and leaving civilians nothing for survival.

The actions of a certain breed of lawyer are not so much incompetent, illegal, or unethical. (We will not digress into the legal, ethical, and logical wrongs of the attorney who refused to serve pleadings on the opposing party's counsel because "they might find out my strategy" or the lawyer who meant to serve the other side but "didn't make enough copies," or the one who would have mailed it to the other side but was "afraid the original would be filed late.") Rather, some lawyers' treatment of other lawyers, parties, witnesses, DOAH staff, and ALJs is undignified, silly, and, in the vernacular hereabouts, just plain ugly! It needs to stop.

Civil Treatment of Staff

Lawyers should treat DOAH's Clerk's staff, administrative secretaries, and in-house court reporters civilly. Forms are provided for ordering transcripts, with an average delivery date of 14 days. After everyone is off the record and after the contract is signed is not the time to request expedited copies. The Clerk is required to close at 5 p.m. She and her staff should not be verbally abused for meeting that obligation. Also, evading security devices to push into DOAH's mail room or into an ALJ's chambers is not the proper way to file papers or win a case. Late filing is counsel's problem, not the Clerk's or an administrative secretary's problem. Fax filing can be either a benefit or bane of modern law practice. Don't take fax machine malfunctions out on DOAH staff or the ALJ. Carefully read new Florida Administrative Code Rules 28-106.103 and 28-106.217.

An ALJ should not have to deal with situations which only display lawyers' ignorance of the rules or their mean-spiritedness, or both. For instance, an ALJ should not have to:

1) Instruct counsel that if he sees them throwing documents at each other and that if the offensive behavior persists, he will recess the hearing until assured both lawyers can act like grownups, or admonish counsel that name-calling and comments about the opposition's personal appearance will not be tolerated.

2) Devise a proper course of action when counsel mails derogatory news articles about the opposing party or that party's counsel to the ALJ. This unprofessional behavior defies ethical consideration categorization, but the only possible motive must be an attempt to improperly prejudice the finder of fact.

3) Request that apple cores, candy wrappers, and soft drink cans not remain on counsel tables when the hearing reconvenes after lunch. Staff should not have to remove gum from inside magazines in DOAH's waiting rooms.

4) Admonish counsel that it is overly aggressive cross-examination to inquire of a Ph.D. witness whether she can read, just because she reads a proffered exhibit silently before responding to a question aloud. (For goodness' sakes, people, why are you making witnesses read documents into evidence in the first place?)

5) Send out five notices of ex parte communication advising parties they are required to serve the opposition with copies of everything they send to DOAH and that nothing can be considered by the ALJ until it is served on the other side. (Doesn't anybody out there read Florida Administrative Code Rules 28-106.104, 28-106.110, and 28-106.204 (formerly Rules 60Q-2.003 and 60Q2.016)?)

6) Entertain oral argument on why an entity which moved to intervene only after a continuance had been granted was not permitted oral argument on the motion to continue.

7) Hold a hearing to consider a "written protest" against holding a hearing in a courthouse instead of in the complaining agency's investigator's office.

8) Consider a response in opposition to a motion to continue, which response has as its sole ground that, although the agency admittedly is unprepared to go to hearing, the agency will not agree to a continuance unless DOAH waives a late cancellation assessment. Such a position is most distressing if an agency has been the "sword wielder," whose charging document relates that there has been sufficient prior investigation and witness contact so as to initiate governmental action against a citizen.

9) Issue an order for telephonic conference call after counsel has repeatedly refused to schedule one as requested.

10) Entertain a motion berating the ALJ for copying the moving attorney with all orders when the attorney responded to the initial order stating that he, in fact, represented one of the parties. (Doesn't anybody out there read the initial order or Florida Administrative Code Rule 28-106.105 (formerly Rule 60Q-2.007)?)

Bar rules, Mom's "honesty is the best policy" rule, and the example of universally respected "lawyer-of-ficers of the court" used to be sufficient to educate new lawyers in how they should behave in the professional community. Senior partners, mentors, bar association meetings, CLE courses, and numerous professional activities once demonstrated the decorum necessary to be considered "ladies and gentlemen of the...