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Lawyer’s ‘Appalling’ Incivility Warrants Tougher Sanction Than What Bar Sought

Wednesday, November 20, 2013

By Samson Habte  

Nov. 7 --An attorney who engaged in “rude and antagonistic behavior” at every stage of a civil case got a reprimand and two-year suspension from the Florida Supreme Court Oct. 31, which made clear it wants the trend of escalating incivility among lawyers to stop (Florida Bar v. Norkin, 2013 BL 302342, Fla., No. SC11-1356, 10/31/13).

In a per curiam opinion, the court ordered a suspension twice as long as what disciplinary authorities asked for, explaining that it “is profoundly concerned with the lack of civility and professionalism demonstrated by some Bar members.”

“Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior,” the court said.

'Appalling and Unprofessional.'

In July 2011, bar authorities filed a complaint against attorney Jeffrey Alan Norkin for actions he engaged in while defending a client in a lawsuit brought by the client's business partner.

Norkin engaged in “appalling and unprofessional behavior” throughout the litigation, the court said. Among other things, it said, Norkin:

• accused a judge assigned to the case of being at the “beck and call” of the plaintiff in an effort “to obtain the disqualification of [the judge] and, thus, a more favorable forum for the litigation of his clients' claim”;

• “falsely accused [a mediator/retired judge] of criminal conduct” by alleging that he had a “cozy, conspiratorial” relationship with the plaintiff;

• “improperly threatened the filing of a legal action against [the mediator] personally” in an attempt “to berate him into withdrawing his request for a fee”;

• “engaged in unceasing efforts to denigrate and humiliate opposing counsel,” a 71-year-old lawyer who “had a lengthy and unblemished career” and was suffering from Parkinson's disease, kidney cancer and other serious ailments; and

• “disrupted several court hearings by yelling at judges and exhibiting disrespectful conduct.”

 

Rule Violations

The court said Norkin's allegations of corruption against the judge and the mediator breached Florida Rule of Professional Conduct 4-8.2(a), which prohibits false statements concerning the qualifications or integrity of judges or other legal officers.


“Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior.”

 

Florida Supreme Court

Norkin also ran afoul of Rule 4-3.5(c), which prohibits conduct intended to disrupt a tribunal, the court said. It rejected Norkin's explanation that his “screaming” during court hearings was the result of a “naturally loud” voice and a behavioral problem that he was working with a therapist to correct. “The referee found Respondent's explanation concerning the volume of his voice patently unbelievable,” the court noted.

Norkin also engaged in conduct prejudicial to the administration of justice in contravention of Rule 4-8.4(d), the court found. The Florida standard, unlike its ABA Model Rule counterpart, states that lawyers should not “knowingly, or through callous indifference, disparage, humiliate, or discriminate against … other lawyers on any basis.”

According to the court, several of Norkin's communications with his septuagenarian counterpart, Gary Brooks, fit that definition. In one e-mail, it noted, Norkin told Brooks: “You will join the many attorneys who have … lived to regret their incompetent, unethical and improper litigation practices.”

Norkin also “engaged in several improper outbursts directed toward Brooks during the litigation,” the court noted. During one hearing, it said, he pointed at Brooks and said: “What more do we have to do, your honor, to show you this is the honest man and this is a dishonest man?”

In another incident, the court said, Norkin approached Brooks in a court hallway and, “in the presence of 'at least four to six [other] attorneys,' said very loudly that he had spoken to other attorneys and confirmed that Brooks was 'underhanded and a scumbag.'”

Getting Tough

The referee recommended a three-month suspension followed by 18 months of probation. The bar had requested a one-year suspension, but the referee gave “great weight to the mitigation presented regarding Respondent's mental and emotional issues,” and recommended a shorter period while suggesting that Norkin receive mental health counseling.

The court was less swayed by the mitigators and instead emphasized aggravating factors. Those included Norkin's refusal to acknowledge the wrongful nature of his misconduct and the vulnerability of his victim.

Even more significant, it said, was Norkin's pattern of misconduct and his prior disciplinary record, which included a public reprimand in 2003 for “disrespectful, accusatory, argumentative, and rude behavior.”

Norkin's lack of cooperation with disciplinary authorities is also relevant, the court said. At one point, it noted, Norkin wrote an e-mail to bar counsel saying: “If the Bar files this action against me, it will be met with a countersuit, and against you personally…. I know and am very close friends with some of the most powerful and respected lawyers in this state and all will know of your, and your Chairman's malicious prosecution of me.”

The court was also guided by its precedents reflecting its increased concern with lawyers' ability to honor standards of civility and professionalism. “Over two-thirds of The Florida Bar members who responded to a 2011 survey agreed that, in recent years, relationships between attorneys have become more adversarial,” the opinion states.

A two-year suspension from practice and a public reprimand are warranted, the court concluded. “Norkin has conducted himself in a manner that is the antithesis of what this Court expects from attorneys,” it said. “His unprofessional conduct is an embarrassment to all members of The Florida Bar.”

Kevin P. Tynan of Richardson & Tynan PLC, Tamarac, Fla., represented Norkin.

The bar was represented by Executive Director John F. Harkness Jr. and Staff Counsel Kenneth L. Marvin, Tallahassee, Fla., and by Bar Counsel Randi K. Lazarus, Sunrise, Fla.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com


Full text at http://www.bloomberglaw.com/public/document/THE_FLORIDA_BAR_Complainant_vs_JEFFREY_ALAN_NORKIN_Respondent_No_.

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