Aggressive Without Being Obnoxious

In early 2018, The Florida Supreme Court rendered its decision in The Florida Bar v. Ratiner, 238 S. 3d 117 (Fla 2018)(Case Number SC13-539). Note that is a 2013 case number decided in 2018. It is an intriguing instance of attorney discipline. 
The reader will remember in Florida, the Supreme Court has the constitutional responsibility to decide who may and may not practice law. Article V., Section 15. When allegations of misconduct are raised, they are investigated by The Florida Bar, under the authority of the Court, and the bar may decide to pursue formal charges. In the event that it does so, the Court appoints a Referee (usually a Circuit Judge) to conduct hearings, determine the facts, and recommend both the conclusions as to guilt and what punishment would therefore be appropriate. 
The Court noted that Mr. Ratiner was a twenty-eight year attorney, admitted in 1990. There had been "Three disciplinary cases brought against" him including the one under consideration. In 2010, one had resulted in "a sixty-day suspension and a public reprimand, to be followed by a two-year period of probation," and the second in 2015 "resulted in a three-year suspension." 
One allegation in the 2013 case was that Mr. Ratiner had said “Lie, Lie, Lie” in a hearing "while opposing counsel conducted the direct examination of Ratiner’s law partner." Mr. Ratiner denied saying this, then denied remembering saying that. However, the judge presiding at that hearing testified that she had heard him say it. The "referee found Ratiner guilty of violating Bar Rules 4-3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct)."
In the same hearing, the Bar alleged Mr. Ratiner "repeatedly kicked the leg of counsel’s table where he was seated." One of the opposing attorneys testified this was “in a manner that was disruptive of the proceedings.” The referee concluded that the kicking was “very loud.” The presiding judge testified that she addressed this with counsel in a sidebar, and then "ended the post-trial hearing" as a result. The Referee concluded that Mr. "Ratiner intended to disrupt the proceedings and was therefore guilty of violating Bar Rules 4-3.5(c) and 4-8.4(d)"(see above). 
The Referee also noted "testimony from various witnesses" regarding misconduct. This included Mr. Ratiner exceeded the agreed upon time for closing argument in the case. When he "exceeded his time," the judge "gave him a few additional minutes," but Mr. Ratiner "stated that he would take whatever time he needed." 
The trial judge also saw Mr. Ratiner "wrinkling and throwing’ documents." When the judge "reprimanded Respondent,” he denied doing so despite her seeing the behavior. The trial judge "described Ratiner’s behavior at trial as 'awful,' that he was not respectful to the court or obeyed orders, and that she was ‘appalled.’” She described him as "disruptive, that he was a ‘bully.’" The Referee concluded that his behavior was "rude, overly aggressive, unprofessional and at times appeared to try to intimidate the witness.” 
Ultimately, "the referee recommended that Ratiner be suspended for a period of three years." Because Mr. Ratiner was at the  time of the referee's decision serving a "three-year suspension" from another of the cases, the referee recommended that the two suspensions be served simultaneously (at the same time, effectively minimizing any punishment for these allegations and findings). 
The first discipline for Mr. Ratiner was rendered in 2010, The Florida Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010). That involved a deposition during which there was discussion of certain documents or information that were/was on a laptop computer, rather than printed on paper. The situation devolved after another attorney tried "to place an exhibit sticker on the Respondent's laptop computer." That led to lost temper, "speaking forcefully," and was described by that referee as "conduct . . . outrageous, disruptive, and intimidating to the witness, opposing counsel, and other persons present." The exchange was recorded, and thereafter was viewed on the Internet by others in Florida. 
The referee in 2010 "made two alternative recommendations as to discipline." The first was disbarment, in support of which the referee concluded that is appropriate if someone exhibits "unfitness to practice law," which the referee concluded The Florida Bar had established. The second recommendation was a "two-year suspension" with the condition that he "attend mental health counseling to address anger management," that he be accompanied to future depositions unless co-counsel was present, and that he apologize to those involved in the deposition that deteriorated so. The Court elected a 60 day suspension, two years of probation with specific conditions (similar to the referee recommendations). 
Thereafter, the Court suspended Mr. Ratiner for three years in an unpublished disposition recorded at 177 So.2d 1274 (Table)(Fla 2015). It was this suspension that Mr. Ratiner was serving when the 2018 decision of the Court was published. 
In 2018, the Court opinion discusses Mr. Ratiner's history. The Court concluded that the referee's findings of fact were "fully supported by competent, substantial evidence." Noting that Mr. Ratiner disagreed with that evidence (other witnesses testimony), the Court reminded “an attorney cannot meet his burden (of proof) by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record to support the referee’s findings.”
The Court then addressed the recommended "sanction, a three-year suspension to run consecutive to Ratiner’s current three-year suspension." The Court noted it "will generally not second-guess the referee’s recommended discipline." The Court, however, concluded in this instance the recommendation was "contrary to Standard 2.3"; “Suspension is the removal of a lawyer from the practice of law for a specified minimum period of time. . . . No suspension shall be ordered for a specific period of time in excess of three (3) years.” By imposing a second three year suspension, the Court concluded it would effectively be imposing "a six-year suspension." 
The Court in 2018 then discussed the second discipline, the three year suspension in 2015. There, Mr. Ratiner was in a document review when he referred to one of his opposing counsel "as a “dominatrix” and stated “you must enjoy dominating people.” The Court noted it had concluded that comment "whether knowingly or with callous indifference, did disparage, humiliate, and/or discriminate against another lawyer." Having been shown a document in that review, Mr. Ratiner demanded a copy. When that was refused, he "attempted to grab the document." He thereafter "continued to attempt to forcibly take the papers." A security guard had to intervene. 
The Court concluded that there was "a pattern of similar misconduct." Despite Mr. Ratiner's consistently proclaiming his innocence, and denying "objectionable, disrespectful conduct over the years," the Court concluded that his conduct was "completely unacceptable." It concluded that his "intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards." The Court noted that "one can be professional and aggressive without being obnoxious." It stressed the value of "treating judges and opposing counsel with civility."
The Court admitted that it "has been discussing professionalism and civility for years." It explained that "if we are to have an honored and respected profession, we are required to hold ourselves to a higher standard." And, thereupon, the Court concluded it was "left with but one course of action, and that is to disbar Ratiner."
The decision is worthy of review for several reasons. First, tempers will flare, and it is not uncommon for feelings to be hurt in litigation. Everyone involved should learn to recognize the onset of such emotions, and would be well advised to take a break to avoid them. Second, childlike behavior has no place in a legal proceeding. Editorializing during someone's testimony and disruptive noise making are but two examples. Third, behavior in hearings is important, but other behavior in correspondence, discussion, and depositions is also important. 

Fourth, it may be that we are all perceived by others in a way that we do not perceive ourselves. How other witnesses to our behavior perceive us may be critical. And finally, a lawyer should take heed when there is some incremental punishment imposed. A warning has a purpose, but may be worthless to us if we fail or refuse to acknowledge it. Continuing a course without correction may lead to increasingly serious implications, including loss of the privilege of practicing law.

How we treat others is critical to the practice of law remaining a profession. The profession is dependent upon our recognition of and adherence to the Rules of Professional Conduct. The Court acknowledges the obligation of zealous advocacy and even the need for aggressive pursuit of a client's rights. But, it cautions us that advocates can be "aggressive without being obnoxious." It is a quote worthy of periodic consideration.
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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