Correspondence In Re The Florida Clam Bar By David Arthur Walters

October 17, 2009 Kenneth Lawrence Marvin Staff Counsel Director, Lawyer Regulation THE FLORIDA BAR 651 E. Jefferson Street Tallahassee, Florida 32399-2300 Re: Improving www.Floridabar.org publicity Dear Mr. Lawrence Marvin: Thank you for replying to my letter of September 14, 2009, directed to the Executive Director of The Florida Bar and the Chief Justice of the Supreme Court of Florida, wherein I made the following construction suggestion: “I respectfully suggest that a list of Pending Complaints and Open Disciplinary Cases be maintained on the website and regularly updated until disposed of. Thereafter the initial and dispositive information would be maintained for 10 years on the respective website-available files of the attorneys involved. By ‘Pending Complaints’ I mean each and every complaint received, and by ‘Open Disciplinary Cases’ I mean each and every complaint that Bar counsel decides to pursue. The information available would of course include the name of the attorney, the date and nature of the complaint and the current status of the investigation. If a case is not opened or an investigation not conducted on the complaint, the disposition then posted to the attorney’s websiteavailable file would state the specific reason for not investigating the complaint. When an open case is closed, the specific reason for disposition would likewise be posted to the attorney’s websiteavailable file.” It appears from your letter that the Bar has taken a lawyerly or disputatious pose in response to my constructive suggestions, which were made in good faith for the sake of positive improvement of at least the appearance of propriety of the legal profession. Apparently the Bar did not take my suggestions seriously enough to forward them to “The Citizens Forum” panel of non-lawyers you have now kindly informed me of while impliedly giving them some credit for the fact that any disciplinary files at all are available on your website. I certainly would like to know who these citizens are and how they come to sit on the panel. Please correct me if I am wrong to assume that the Citizens Forum panel does not have any ultimate authority to set Bar policy, the most of which is formally embodied in the Rules. It is also my understanding

that non-lawyers do not control the grievance committees nor can they veto decisions to discipline or not to discipline lawyers. Ideally, the disciplinary function would be taken away from the Court and would be overseen by non-lawyers, as it is in the mother country since the Great Reform. Of course am I glad to see Complaints and Referee Reports on closed cases publicly displayed on your website. This is admittedly a case of “give an inch take a mile.” In the interest of transparency, why not make the almost entire file immediately available? Why conceal part of the file, and make the consumer of legal services ask for it, and bother staff to retrieve it – I have already suggested that a PACER-like system, which would require the user to pay the statutory fees per page, might be convenient. Unfortunately, the information immediately available on the website provides, in the main, a one-sided, prosecutorial perspective. Naturally many disciplined lawyers feel they have been unfairly disciplined, and I know of one lawyer who insists that the action taken against him was politically motivated and due to his allegations of judicial corruption involving an alleged collusion between a judge and a powerful i.e. politically connected law firm. Moreover, he publicly claims that the Bar has ignored or refused to investigate his allegations of felonious conduct brought to its attention. As you know, I have already criticized the Bar policy you made in your email statement yesterday, to the effect that the Bar keeps no files on law firms because they are not licensed hence the Bar cannot answer any inquiries that might suggest that misconduct is motivated or perpetuated by the organized, narcissistic submergence of individual consciences in “powerful” law firms or pools. Now you have stated, “Your assumption that there are files never opened would only be correct if The Florida Bar was unaware of the conduct.” With all due respect, I have reason to believe that you are prevaricating in the sense of “beating around the bush.” But perhaps you are unaware of the widespread suspicion that the Bar routinely screens out valid inquiries and complaints, and then insists there is no record because no file was opened. I have sufficient grounds for suspecting that the Bar receives numerous inquiries and complaints for which no file whatsoever is opened. That might not involve any impropriety, since the Rules do allow for screening. For instance, what if Bar counsel received a letter from me saying that I wanted a lawyer disciplined because I went to his office and demanded that he take my case on contingency, and he said he does not have to take contingency cases, and that furthermore, says that in his opinion I have no case? I suppose I would get a letter in response from the Bar, stating why the Bar is not opening a file. Although the Bar may not open a file, I believe it should record the information, give the reason for not opening a file, and make that information publicly available – I

believe that doing otherwise, when a request is made, might constitute a serious violation of law. As for inquiries and complaints upon which files are in fact opened and then closed without disciplinary action taken, and then destroyed a year from closure, some sort of record of the existence of those files, at least a dated listing, should be immediately available to the public, otherwise the consumer of legal services will never know that there has been complaints lodged against attorneys and disposed of without discipline unless he has some prior knowledge from direct involvement in the case or from rumors and press stories. I have asked the Bar, to no avail, for a copy of the written policy mandating destruction of closed disciplinary. You have addressed the destruction policy in your letter, as follows: “Concerning why The Florida Bar destroys a closed file after its closure, this procedure is in accord with the Supreme Court’s policy on file retention.” The Court’s administrative rules refer to a retention schedule, but the schedule I have in my possession does not actually provide for destruction one year after closure, leaving me to conclude, in the absence of the Bar’s response, that I have the proper schedule and that the policy you mention is actually unwritten in the formal sense. In any event, I would think that such an important policy would be put in the form of a formal Rule, especially when the profession and its organization concerned is inherently rule bound. A year is a very short period of time, and the one-year policy creates, now that questions are being asked about the conduct of lawyers that helped set up what appears to be a massive fraud on the people. Were complaints filed with the Bar by lawyers who are now saying they knew of the misconduct? Did the Bar open files, or just screen out the complaints or fail to make inquiries? Does a one-year destruction policy for those files opened and closed help conceal a conspiracy at the Bar level? For instance, I have been promised a closed file presumably relating to Carlos Loumiet’s involvement as an auditor in the Hamilton Bank Fraud. If I had not noticed his name in the paper, together with a remark by his defense attorney that the Bar had a disciplinary case which it would not dispose of until the Comptroller made his decision, I would never have known about the Bar case. When I checked into the matter and discovered that the Bar had closed the case for lack of probable cause immediately after the Comptroller dismissed the civil action on a technicality, after severely criticizing the failure of the administrative judge below to admit testimony about the attorney’s lack of diligence and care in the auditing matter, I became quite interested in the case because I wondered if the Bar had actually conducted its own investigation and made its own conclusions, which it is supposed to do. I was told it would be scanned by the Miami office and sent along to me. That was several weeks ago, and before I know it, the file will be destroyed. To return to files that are in fact open, and in regards to Mr. Loumiet’s widely publicized representation of fraudster Allen Stanford, I inquired of the Bar as to whether a case had been opened in that matter, and was told that there were no open files on him. But when I mistakenly insisted that a newspaper had already reported that a case had been opened, I was told, after some pause, apparently to check the computer files, that there was in fact another file open, but nothing else could be said, about the nature of the file etc.

As you know very well, I have asked time and time again for information about complaints or inquiries made about attorneys involved in the setting up of a money laundry trust for fraudster Allen Stanford, some of them working for the “powerful” law firm Greenberg Traurig at the time, and some for the State of Florida, yet I was refused this information, and was told nothing could be said absent the name of a particular attorney – and yesterday you went so far as to say there are no files on law firms. I believe the Bar is aware of the information I want and that its refusal to provide me with information may be contrary to law. Indeed, all I wanted to know in the first place was if the Bar had done and was doing its job in respect to the Stanford Fraud, and I would at that time been satisfied with a naked assurance; but as a result of the recalcitrance, I became more interested in its processes and was moved to dub it The Florida Clam Bar. According to an October 9, 2009 report in South Florida Bar Journal, you admitted that the Bar has been releasing faulty statistics to the public for several years, and that the Bar is trying to figure out why the number of attorney discipline cases dropped in the past 12 months, even as complaints about attorney involvement in mortgage fraud and housing-related fraud have skyrocketed. I see from the article that Bob Jarvis, a law professor at Nova Southeastern University in Davie, called the Bar’s admission troubling and said. “It’s a problem, and the Bar should be taken to task for it. We want to know if the Bar is being a good steward of the dues we pay.” I suppose bar members whose livelihood depends on good standing with the Bar, an agency of the Florida Supreme Court, are the least likely people to take the Bar to task. Most troubling to me is this statement in the South Florida Bar Journal exposé: “Marvin said the Bar is currently handling 100 complaints about attorneys involved in mortgage modification fraud, but they name a ‘handful’ of attorneys.” Why does the Bar choose to reveal information about its handling of a public calamity in part engineered by the legal profession, and go so far as to name a few lawyers, for the benefit of the reporter Paul Brinkman’s publication, while telling me that that kind of information is not accessible or is not available? Is it because you perceive me as a member of the public and him as a member of the press? But there should be no such distinction made, and not simply because my publications on the Bar are receiving around 500 views per day, but because somebody, anybody should take the Bar to task from time to time. As to your statement about confidentiality, “Cases that are pending at staff level and at Grievance Committee level are confidential so that the investigation is not compromised. This rule is consistent with any law enforcement investigation and with the rules of other investigative bodies,” a form of the “everybody else does it” plea, I do not believe tradition or what others do is a good excuse for bad judgment and practice. Besides, your analogy is faulty, and your rule is not consistent with any law enforcement investigation, at least not once a formal charge is made. Although a disciplinary matter before the Bar may involve a criminal complaint in a court of law, that complaint is public, and the Bar’s disciplinary procedure is just that, a matter of discipline and not a criminal charge.

But if it is to be treated as if were a criminal procedure, information about the formal charge, while being investigated, would be available to the public, and the public would be alerted even to some aspects of the investigation before charges are brought, such as the identify of persons of interest and suspects, and the public would be alerted to upcoming hearings and trials – all this would allow the public to take precautions and to come forward with valuable information about the persons and facts in question. Moreover, lawyers, as “officers of the court” are, at least in my lay opinion, notwithstanding a dismissive remark by a U.S. Supreme Court justice, like police officers or officers of the law, “public officials.” They are public officials who have more influence over all branches of government and the conduct of political and economic affairs of the nation than any other organized professional, and their conduct should duly scrutinized by the public. Complaints brought by members of the public against lawyers should get at least as much public airing as complaints brought against police officers, and those records should be maintained for years whether disciplinary action was taken or not. Furthermore, in a much broader sense, consumers of legal services should have access to information about the number and nature of complaints about legal services as they have, for example on certain websites, about the number and nature of complaints about apartment buildings at certain addresses. What is so special about a lawyer that makes him or her immune from public criticism both positive and negative? After all, what does the Bar have to hide that it would benefit the public to know? What is it that the disciplinary arm of the Florida Supreme Court, the court that is in effect judge, jury and prosecutor in all disciplinary cases despite its internal agency delegations, wants to conceal, and why? The Court has broadly interpreted the public record law in numerous cases. Does not its interpretations apply to itself? Sincerely, David Arthur Walters cc: Chief Justice Peggy A. Quince

Facsimile of U.S. Mail John F. Harkness, Jr. Executive Director

THE FLORIDA BAR 651 E. JEFFERSON STREET TALLAHASSEE, FL. 32399-2300 October 12, 2009 Mr. David Arthur Walters Miami Beach, Florida 33139-8677 Re: Improving www.Floridabar.org publicity Dear Mr. Walters: We received your September 14, 2009 letter inquiring as to why The Rule Regulating The Florida Bar do not allow pending complaints to be public record, why all pending cases are not posted on our website, why closed files are destroyed one year after closure and your assumption that “there is a category of complaints that are never opened hence never closed hence never available for disclosure.” Cases that are pending at staff level and at Grievance Committee level are confidential so that the investigation is not compromised. This rule is consistent with any law enforcement investigation and with the rules of other investigative bodies. You assumption that there are files never opened would only be correct if The Florida Bar was unaware of the conduct. Concerning why The Florida Bar destroys a closed file after its closure, this procedure is in accord with the Supreme Court’s policy on file retention. The Florida Bar is very concerned with providing relevant, appropriate information to the public and has created a panel of non-lawyers to advise the Board of Governors on certain issues. This panel is called “The Citizens Forum” and had provided invaluable input into the formulation of Board policies concerning public information. There is no law or rule that requires the Bar to post a 10-year disciplinary history of each member of The Florida Bar, yet the Bar does this to inform the public. Sincerely, Kenneth Lawrence Marvin Staff Counsel Director, Lawyer Regulation

Facsimile of U.S. Mail

September 14, 2009 John F. Harkness, Jr. Executive Director THE FLORIDA BAR 651 East Jefferson Street Tallahassee, Florida 32399-2300 Re: Improving www.floridabar.org publicity Dear Sir: A former law professor has repeatedly advised me to “never assume,” but I have difficulty breaking the habit of doing so when I think there is room for improvement. Therefore please pardon me for being so presumptuous as to presume along with Alexander Hamilton that the power of the people is superior to the inherent power of the judiciary, and to further assume that The Florida Bar is anxious to improve itself and its website publicity, and is eager to receive suggestions from the public to that end, and may put such suggestions to good use. I respectfully suggest that a list of Pending Complaints and Open Disciplinary Cases be maintained on the website and regularly updated until disposed of. Thereafter the initial and dispositive information would be maintained for 10 years on the respective website-available files of the attorneys involved. By ‘Pending Complaints’ I mean each and every complaint received, and by ‘Open Disciplinary Cases’ I mean each and every complaint that Bar counsel decides to pursue. The information available would of course include the name of the attorney, the date and nature of the complaint and the current status of the investigation. If a case is not opened or an investigation not conducted on the complaint, the disposition then posted to the attorney’s website-available file would state the specific reason for not investigating the complaint. When an open case is closed, the specific reason for disposition would likewise be posted to the attorney’s website-available file. As for the confidentiality of open files, Rule 3-7.1 (e) allows for the disclosure of the status of specific cases under investigation. The specification under my suggestion would be any and all open files.

The disciplinary rhetoric of the The Florida Bar, which seems to equate certain “closed cases” with cases Bar counsel “declines to pursue,” together with the public assertion of national Bar surveyor HALT, Inc., that The Florida Bar fails to investigate many complaints at all, leads me to assume that there is a category of complaints that are never opened hence never closed hence never available for disclosure to the public as required by the Constitution and Statutes of the State of Florida. Rule 3-7.3 reads in part: “(a) Screening of Inquiries. Prior to opening a disciplinary file, bar counsel shall review the inquiry made and determine whether the alleged conduct, if proven, would constitute a violation of the Rules Regulating The Florida Bar warranting the imposition of discipline…. If bar counsel determines that the facts, if proven, would not constitute a violation of the Rules Regulating The Florida Bar warranting the imposition of discipline, bar counsel may decline to pursue the inquiry….” A spokesperson for the Bar has tried to clarify the procedure and policy for me with statements such as: “If there was a file that was closed with no discipline imposed, it has been one year from the date of closure and the file has purged from our records, the computer record is deleted and the paper file (if applicable) is destroyed.” “‘Purged’ means that the record is deleted and the physical file (if applicable) is destroyed.” “The fact that we purge files closed with no discipline one year from closing is not a rule but, rather, a Bar policy.” If my assumption is correct, that there is such a category as never opened hence never closed, I want it to be understood that I mean to include that category in my present suggestion. The reason for making this suggested improvement to the existing system is as obvious as the reason for the present policy of keeping the information as to closure relatively secret unless specifically asked for and then destroying it after one year. Transparency will serve the public far better than opacity, for then the people will be better able to make sure that officers of the court are as accountable to the people as officers of the law, whose complaints are a matter of public record for years whether dismissed or not. Since officers of the court wield extraordinary power over all three branches of government, it is reasonable to expect that their conduct should be even more subject to public surveillance than officers of the law. Furthermore, if the public is openly apprized of pending cases, the public might be moved to provide evidence helpful or harmful to the attorney charged. And statistical analyses would be made more convenient and effective if all the data were available, e.g. a high number of complaints against

certain attorneys whether pursued by Bar counsel or not might provoke useful inquiries. Last but not least, the people would better know whether or not its judiciary is doing a good job serving the public interest. It is with the foregoing in mind that I pray that it will please the court to take my suggestion seriously and act accordingly. Sincerely, David Arthur Walters Miami Beach, Florida 33139 [email protected] cc: Chief Justice Peggy A. Quince