The American Lawyer, May 15, 2012

Michael Koehler

The government has brought lots of anti-bribery cases under the Foreign Corrupt Practices Act, but there are still some crucial aspects of the law that remain unsettled. For instance, what constitutes a “foreign official” under the FCPA? In a couple of prosecutions, defense attorneys have tried unsuccessfully to limit the definition to exclude employees at state-run enterprises. In the Lindsey Manufacturing prosecution, for example, Los Angeles federal district judge Howard Matz ruled in April 2011 that state-owned companies could be instrumentalities of the government. Santa Ana, Calif. federal district judge James Selna made a similar ruling against former executives of Control Components Inc. in May 2011, although he added that a lot depended on the facts.

The issue has never been heard on appeal, but that’s about to change. On Wednesday two former executives of Terra Telecommunications who were convicted last August of bribing officials at Haiti Teleco, a state-owned telecom company in Haiti, raised the question in briefs filed with the U.S. Court of Appeals for the Eleventh Circuit. (hat tip: The FCPA Professor.) 

Prosecutors had successfully argued that Haiti Teleco was an “instrumentality” of the Haitian government, thereby making its employees “foreign officials.” Joel Esquenazi, the former president of Terra, was given a 15-year sentence by Miami federal district judge Jose Martinez–the longest sentence in FCPA history, while Carlos Rodriguez, Terra’s former vice-president, got seven years.

In his appellate brief, Esquenazi and his lawyers at Perkins Coie maintain that an “instrumentality” of the government must be construed to exclude state-owned businesses that do not perform governmental functions, as well as their employees. The FCPA deals with foreign governments only, and treating employees of all state-owned businesses as foreign officials “would lead to absurd results,” they maintain. 

Rodriguez and his lawyers at Foley & Lardner argue in their briefthat the statute is ambiguous, and cite legislative history for the proposition that the act doesn’t support an expansive interpretation of “instrumentality.” Citing Michael Koehler of the FCPA Professor blog, Rodriguez argues that Congress intended to limit the scope of the statute to “traditional government officials, not employees of state-owned enterprises.” (Koehler is providing advice to both defendants’ legal teams.)

Complicating matters is a letter turned over by prosecutors after the verdict. The letter was sent by Haiti’s Prime Minister, Jean Max Bellerive, maintaining that Haiti Teleco has always been a private company and did not file the necessary paperwork to become a state enterprise. According to both briefs, the letter was dated ten days before the verdict. Both convicted officials asked Martinez for a new trial or a hearing to determine whether the government knew about the letter before the verdict and breached its Brady obligations, but were turned down. The government maintains it didn’t know about the letter until the verdict was in.

Koehler told The Litigation Daily that it’s possible that the appellate court could find there was a Brady violation without deciding the definition of a foreign official. Still, he expects the court to clarify this issue. “Given the importance of the issue, since it’s a case of first impression, I think the appellate court would rule on the foreign officials issue,” said Koehler.

This article originally appeared in The AmLaw Litigation Daily.

As lawyers, we advocate and negotiate for our paying clients, and rightfully so; it is an outstanding privilege and can make for a great career.

I submit, however, that a large part of what makes lawyering a calling and a profession is not necessarily what we do for a fee or a paycheck, but whether and how we serve as voices for the voiceless.

Some lawyers (for example those who work for legal aid organizations) have the opportunity to serve as such voices in most everything that they do in their careers.

But even those of us who work in private firms representing business clients can and should find opportunities to be such voices on a regular basis. Let me suggest several.

There are an endless number of indigent and low-income members of society with little or no meaningful access to the legal system because they need help to understand their rights.

Attorneys have knowledge and skills that can literally change lives for the better, sometimes in a matter of minutes. Our legal community constantly is working to create such opportunities. The “Ask-A-Lawyer” program for example provides 15-minute counseling sessions to members of a waiting room-only crowd each month in one of our city’s underserved communities.

Last month, lawyers and law students helped dozens of immigrants aspiring to become American citizens to complete paperwork to start the citizenship process.

It only takes minutes of interaction to change lives, to point our neighbors in the right direction, to help make sense out of the confusing and frustrating. What an opportunity!

Lawyers in our community have a unique opportunity this month to learn more about how lawyers and the legal system can better serve indigent and low income people.

More than a thousand lawyers from all over the world will be in Jacksonville May 17-19 for the American Bar Association’s Equal Justice Conference.

This is the first time that the Equal Justice Conference is being held in Jacksonville and it will be an amazing several days during which lawyers and social workers will gather to discuss the challenges, solutions and opportunities to serve those most in need.

The JBA and Jacksonville Area Legal Aid are integrally involved in planning this world-class event. Plan to be a part. Contact Kathy Para, kathy.para@jaxlegalaid.org, at JALA for more information.

That’s right, the judiciary — the third branch of government. As non-judge lawyers, we are in many ways the most important voice for the judiciary.

Judges cannot lobby; they generally are not in a position to defend difficult legal decisions or to provide constitutional or other legal context; and judges cannot campaign in the same manner as those who are elected to other public offices.

It is our responsibility to lobby for needs of the judicial branch of government; to put unpopular legal decisions in context; and to educate the public (at least our family and friends) about the candidates for judicial election and about the process of merit retention for appellate court judges.

As this City’s new courthouse opens later this month, each of us will have the opportunity to be a voice for the vital role that the judiciary and the judicial system plays. We each have the opportunity to stand up for the branch of government charged with standing up for all of our citizens. Don’t miss that opportunity. Be a voice for the judiciary.

We have a responsibility to be role models — to speak to, and into the lives of, those that will come after us.

Such an opportunity presented itself last month when a local magazine promoted a story on “Jax Best Lawyers” with a cover featuring a non-lawyer model dressed, made-up and posed like the “cover girl” on most checkout line magazines.

Many local lawyers (mostly women and some men) wrote to the magazine’s editors and otherwise spoke out about the apparent suggestion that to be a successful female attorney, or other professional, a woman needs to dress provocatively. (That suggestion is in sharp contrast to the magazine’s cover last year portraying a tastefully dressed man in a suit.)

As the magazine’s editor correctly noted in his mocking response to the negative letters, there certainly are more “serious” concerns to deal with. But this one presented itself.

In response, many in our community took the opportunity to be a voice, calmly and professionally articulating the concern that, for example, a young girl aspiring to be a professional might erroneously conclude that successful professionals must dress and act provocatively.

We should certainly speak out on more “serious” concerns, but we should be willing always to be a voice on any issue, as the opportunity arises. I am proud that so many in our profession took advantage of this opportunity.

It is nearly impossible to find a television or radio show host that is not polarizing. The Internet, where one can speak anonymously yet with great reach, contains even more polarizing content.

Political parties, branches of government, laws and people are vilified — to sensationalize a point or to promote a particular agenda. Almost entirely lacking is sensible, intelligent objective dialogue. Regrettably, media ratings are not high for respectful discussion about ideas, logic and historic context. Notwithstanding how lawyers are sometimes portrayed, we are educated to engage in such dialogue — to attack arguments not people. It is from that type of dialogue that positive solutions, change and progress emanate.

As lawyers, we need to participate in intelligent dialogue and to encourage the same from others. It is a voice that is missing.

Jacksonville Daily News & Fiancial Record, May 15, 2012

Some have portrayed the chief judge and others as attempting to lavishly adorn the courthouse with new and extravagant furniture as opposed to putting readily available and functional used furniture to use.

This is a false portrayal. The relevant facts are:

■ The rooms in need of furnishing are 37 public hearing rooms, critically necessary for proceedings such as adoptions, divorce hearings, as well as civil and criminal matters.

■ Functional used furniture is being transferred to the new courthouse, but there is not adequate additional used furniture for these important new public hearing areas.

■ The areas at issue are not the private offices of our judges.

■ The original City budget allocated $1.9 million to furnish the hearing rooms. The judiciary collaborated with the City to reduce that budget by over $1.1 million to about $775,000.

■ Although city officials initially suggested that they may be able to locate and move additional used furniture from other courthouses, this has not happened.

■ The operation of the courthouse and the administration of justice will be substantially undermined if the hearing rooms are not furnished and therefore usable when the courthouse opens.

■ The new courthouse is, and has been for many months, set to open on May 29.

Viewed in this accurate context, it is clear that the chief judge’s efforts to cause the city to use the approved and budgeted funds to furnish the public hearing rooms is not motivated by ego or insensitivity to taxpayer dollars as has been suggested.

To the contrary, Chief Judge Donald Moran is responsible to ensure that the courthouse is fully and adequately situated to permit justice to be administered.

To state the obvious, this cannot happen without furniture in one of the central features of the new courthouse: the public hearing rooms.

Mike Freed, president, Jacksonville Bar Association

Florida Times-Union, May 12, 2012

 Mark joined Brennan, Manna & Diamond in May 2005. He is experienced in business law, commercial litigation and health care and has prosecuted and defended cases in state and federal court as well as in arbitration and administrative proceedings. He is rated AV-Preeminent by  Martindale-Hubbell and is admitted to practice in the in the U.S. District Court in the Middle and Northern Districts of Florida and the U.S. Court of Appeals (Eleventh Circuit). 

 Brennan, Manna & Diamond concentrates its practice areas in business law, commercial lending and corporate finance, construction, health law, commercial litigation, mergers and acquisitions, real estate, probate administration, estate and succession planning and taxation.  BMD is dedicated to aligning the incentives of legal professionals and their clients by combining creative problem-solving skills with extensive and sophisticated legal and business experience.  Our distinction is the firm’s unique marriage of successful entrepreneurs and developers combined with nationally recognized leaders in the tax, education, manufacturing and health care fields in providing high-quality legal services and business advice to our clients. 

(04.19.12) News Media Contact: Lorraine M. Signore                                    Phone:  330.253.5060/lmsignore@bmdllc.com

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President Dwight D. Eisenhower established the first Law Day in 1958 to mark the nation’s commitment to the rule of law. Every president since has issued a Law Day proclamation to celebrate the nation’s commitment to the rule of law.

Although Law Day is officially May 1, The JBA kicked off a month of activities on April 11 at a member lunch. We were honored to have American Bar Association President William Robinson give our keynote address. What an impressive and humble man.

I had the privilege of joining him and The Florida Bar President Scott Hawkins for a series of media interviews and meetings with various constituencies to address the Law Day theme and the compelling issues facing our profession and the judiciary.

This year’s theme, “No Courts, No Justice, No Freedom,” highlights the significance of courts providing justice in our country. It is particularly fitting given the imminent opening of our new state courthouse in May and the ongoing concerns in Florida over the adequacy of funding the third and constitutionally coequal branch of government, the judiciary.

As President Robinson eloquently has stated it, “All of us must have and protect our right and our freedom to use courtrooms when we need to. That courtroom must be open to protect families. That courtroom must be open to validate and protect contracts for business. That courtroom must be open to keep the wheels of justice turning. That courtroom must be open to defend our individual rights to prove again and again that we continue to be a free society. All of that takes more money … not less and less money for our courts.”

It is incumbent on each of us to join Presidents Robinson and Hawkins as ambassadors for the rule of law and the judiciary. There are a variety of reasons why the public has an unfairly negative opinion of the role that courts play in our society.

One reason is polarizing and sometimes ignorant criticism by television and radio personalities in the face of court decisions that are unpopular with their audiences.

Even President Obama, a former law professor who should know better, stepped unfortunately into this fray recently, making comments that suggest that courts do not have the authority to overturn legislation deemed to be unconstitutional.

As all first-year law students (and we would hope the general public would) know, overturning unconstitutional legislation is exactly what American courts are intended to do. Often pockets of the public jump on the bandwagon of labeling a judge or a court “activist” or “obstructionist” without an intelligent analysis of the context in which the relevant legal issue was presented to the judge or court.

Another frustrating dynamic is that, for the most part, our judges are unable to speak out or up for themselves. Appropriately, judges are supposed to be outside and above the political fray. Yet the judiciary regularly is subjected to the forces of the political process.

Most obviously, the other two branches of the government (the same over which the judiciary passes constitutional judgment) set the budget for the judiciary. In Florida, that budget is 0.7 percent of the total state budget. (The highest of any state is 4 percent.) Well less than 1 percent to handle, as Robinson pointed out, more Florida state court cases filed last year than cases filed in the entire federal court system.

In short, our judiciary is being asked to do more and more with fewer resources and our judges are to be effectively voiceless in response.

That’s where we need to step up. Attorneys need to take every opportunity to remind those within our spheres of influence about the significant work that our courts do and how important it is to have an objective and fair funding process and an adequate and definite funding source. Our economy, our system of due process, and our very rights depend on it.

As I listened to President Robinson speak to multiple audiences, I had an ironic and sad observation: in many ways our judiciary is respected more abroad than it is in our own country. President Robinson travels internationally on a regular basis as an ambassador of the legal profession.

In other countries, both developed and developing, our justice system is viewed and emulated as the “gold standard” for any society that wants true democracy. President Robinson and other distinguished representatives of our profession and our courts are consulted regularly to assist new democracies in creating a system like ours.

Meanwhile, in the United States itself, Presidents Robinson, Hawkins and other Bar leaders frequently are called upon to defend our own courts in the face of unpopular decisions.

Neither our system nor all judges are perfect. That said, we need to remember and remind others of the strengths, significance and value of our system and to be a voice for our courts when they are unable to be voices for themselves.

 Daily Record, Jacksonville, FL (4/30/2012)

by The Jacksonville Bar Association President Michael Freed

The theme of Law Day 2012 across the country is “No Courts, No Justice, No Freedom.”

The Daily Record interviewed American Bar Association President William Robinson III, The Florida Bar President Scott Hawkins and The JBA President Michael Freed about issues their organizations have chosen to address. Robinson was the keynote speaker at Law Day in Jacksonville.

Robinson is the member-in-charge of the Frost Brown Todd firm’s Northern Kentucky offices in Florence.

Hawkins is the vice chair and a shareholder with Jones, Foster, Johnston & Stubbs in West Palm Beach.

Freed is managing partner of Brenna, Manna & Diamond in Jacksonville.

Here are excerpts from the interview.

What’s your message for Law Week?

Robinson: Our primary message is that the courts are about the people, for the people and there to serve the people and they are the key to a representative, constitutional democracy.

Our American Constitution and our state constitution, which ispatterned after it, established the courts as one of three coequal branches of government.

The balance of powers between the three branches of government is what most historians recognize as the unique aspect of our Constitution that has basically not only established but allowed our country to prosper over 200 years with a very high level of democracy and representative government.

This system of checks and balances revolves around the courts as the linchpin of democracy, and for the courts to fill that role effectively and responsibly the courts need to be adequately funded.

When the founders of our country wrote the Constitution with the wisdom that they brought to the table, historians tell us they didn’t have enough money to pay the Revolutionary Army.

Our new government, at the beginning, didn’t have the money for roads, didn’t have the money for utilities, didn’t have the money for buildings. It had to rent storefronts to set up operations.

But from the very beginning, the courts were established as one of three coequal branches of government, and to the extent that they are underfunded, the ability of the courts to fill that role is compromised, and freedom is compromised, and the quality of democracy is compromised.

Businesses from around the world, including China, invest in this country because the law is predictable, the law is reliable, the law is basically honest throughout this country, and their money is secure here because our system of law has been secure here.

We need to adequately fund our courts. This is not a lawyer issue. This is a public issue about the quality of life in America.

Last year, 42 out of 50 states cut court funding, and that was on the heels of many cuts that had come previously. There’s not a state in this country that funds its statewide judicial system with more than 4 percent of the overall operating budget. And we’re talking about one of three coequal branches of government, and here in Florida, it’s around 0.7 percent, less than 1 percent.

It’s really unconscionable, and it probably continues to happen because civics education in this country is so lacking. Civics has not been taught for two generations.

An embarrassingly high percentage of the population can name every judge on American Idol, first and last name, but can’t name a single judge on the Supreme Court, including the chief justice.

You might try that some time at a reception or a cocktail party. You’re standing around looking for something to talk about. ‘By the way, do you have any ideas on the Supreme Court?’ I’m always surprised. Not only they don’t know, but they don’t care.

In these tough times and in these tight budget periods, everybody’s being forced to take a cut. Governors, presidents, every agency, every part of government. Why should the courts be different?

Robinson: Because the courts are a coequal branch of government. They’re not a line item in the general state budget. They’re not roads, they’re not parks, they’re not libraries, all of which are worthy objects, but if we value representative democracy, if we see our Constitution as the key to our unique place in history, the courts need to be adequately funded.

Not for the lawyers. The lawyers are well-educated. Lawyers are fine one way or another to be successful, because we have the benefit of education, discipline, including disciplined thinking.

But the public at large, whether they use the courts themselves personally at any given time, they need the courts to be there like they need emergency rooms to be there, police stations to be there, firehouses to be there.

It’s a quality-of-life issue. Those who have had the benefit of education understand that civilizations are not guaranteed to be successful forever. Countries come and go; civilizations come and go; the Roman Empire came and went. There’s no guarantee that our country, in this complex world in which we live, is assured of a future.

But most of us see our Constitution, and our constitutional form of government, as the key to our future. If we agree, and I haven’t heard anyone disagree, that our courts are the key to the balance of powers between our branches of government, which is the key to our unique representative democracy, then we need to adequately fund them. And they’re not being adequately funded.

So we’re speaking up about that. We’re asking the public to wake up about this because their interests are at stake. We’re partnering with organizations like the U.S. Chamber of Commerce, who has stated in print that small business, like big business, is the backbone of this economy, of this country. But small business, like big business, depends on the courts.

What good are contracts, what good are restrictive covenants, what good are non-competes, what good are company secrets, if they can’t be protected?

What good is intellectual property if it can’t be patented and protected, etc., etc.? Businesses simply can’t function and succeed if they don’t have the timely certitude of court protection when disputes arise, as they inevitably do in all areas and all levels of business.

We simply need our courts for our country to continue to be successful in an ever more complex global economy. It’s the hub of the wheel when it comes to democracy.

Hawkins: Speaking from The Florida Bar perspective, why the courts should not suffer, or have their budgets decrease like other governmental services during a down economy, is that the pressure on the court system actually escalates and grows in the commercial litigation world that we currently operate in.

More and more business people find themselves, in a down economy, in litigation to work through collection disputes, misappropriation issues. In some ways, the demands on the system will increase as the economy declines.

Certainly if you look at what’s happening with foreclosures, that has been the case. There’s an inverse correlation between the decline of the economy and demands on the system.

Going to (Robinson’s) point, I think it’s a little deceptive to think in terms of the courts just being like another government service. The courts have two basic roles, as I see it.

The court is the only entity charged with constitutional authority in our democracy to check the legislative branch and to check the executive branch.

If there’s a sense that the Legislature has passed a law that’s unconstitutional, who’s going to declare that rule unconstitutional? Will the toll booth operator or the park ranger or the utility service? No.

The only service empowered with the authority in our entire system, as conceived by Jefferson and Madison, with that ability to check the power of the legislature and executive (branch), is the courts system.

We lose sight of that. But that’s how the framers set it up. That’s the function that the courts play.

If the courts system is weakened because of a lack of funding, or if you’re not able to pay good judges adequate salaries such that the system is weakened by a lack of ability, then you’ve got the third branch being weakened by economic factors which essentially empower the other branches.

The alignment that Jefferson and Madison were seeking to achieve will get lost. You’ll have the imbalance.

The constitutional importance of the courts is often just way overlooked.

Florida’s government has been searching for a formula to find that funding means. Government tried it with the foreclosure fees, which are pretty much gone. What’s the next step?

Hawkins: The 2012 session passed a budget amendment to require court funding be largely borne by general revenue dollars, so that means every tax dollar that you and I pay in Florida, a portion of that will go to fund the courts system.

That, frankly, is a very significant step in terms of stabilizing court funding.

Now, we’re not talking about the amount of money. We’re talking about the source of money. What’s been achieved this year is stability in the source and adequacy of money to fund the courts system.

Please understand, this problem that we’ve had in Florida with there not being enough cash in the system is not the product of anybody misspending, or overspending, or any profligate behavior by the courts system.

It’s the fact that the money did not materialize to fund the courts because filings were the primary source of money, and filings declined in 2009, ‘10, ‘11, so that in 2012, the Legislature shifted the bulk of the expense (so) that 80 percent of court expenses next year will be borne by general revenue dollars.

I’m hopeful that the cash crunch that we experienced last year and the year before (does not recur), where the courts actually had to borrow money — imagine that. Call the governor, ‘I need money to keep the doors open.’ How is that a good way to operate a government?

What about the process of confirming judges on the federal level?

Hawkins: It’s on a continuous basis now, and this goes back several years. We consistently have approximately 10 percent of federal judgeships vacant. It revolves around 80 judgeships consistently. Nobody can remember and everyone argues about which party of the two parties started it, but with each administration, one party’s getting even with what the other party did the administration before, and judges just don’t get approved as they need to be approved.

What we and the American Bar Association have argued for years is that any candidate who is voted out of the judicial committee as recommended for a vote, they deserve to have an up-or-down vote.

What happens is that so many of these candidates, they’re put on a shelf and no vote’s taken, and they sit there for a year, year and a half.

Think about the person who’s in that process. What does that person do about her law practice or her relationship with her law firm, or whatever position she’s got at the time, not knowing if and when she’s going to be voted on, let alone a final decision made?

It’s unfair. It has the potential to compromise interests of the potential candidates for appointment to the federal bench. It’s not good for the overall system, and I haven’t ever heard anyone argue that it is good. It’s just that it’s not a politically solvable issue, because the two parties won’t come to an agreement about resolving this to the benefit of the people as a society.

We keep asking, we keep pleading, we keep persuading, and we keep hoping that there will eventually be an awakening of the need to correct the situation and fill the vacancies by having up-or-down votes on the floor of the Senate on candidates who come out of the judiciary committee.

We have had, at some points, as many as 15 candidates come out of the judiciary committee that have had no negative votes in the judiciary committee, and still could not get a vote on the floor of the Senate. It’s just unconscionable.

Freed: The last two judges of the federal judges here in the U.S. Middle District of Florida have taken at least two years after committee to be passed.

Hawkins: That’s an example of how polarization leads to dysfunction. We’re talking about good people who’ve put their careers on hold for this federal appointment, and it’s become a political football.

In Florida we have a problem in the state system where judgeships have been certified as being necessary in certain growth areas that have not been funded because there hasn’t been adequate money.

I’m hopeful that as the economy cycles back, that the amount of money available to fund the courts system will grow. I’m hopeful that judicial salaries can be raised.

I know to the average voter, what a judge makes sounds like a lot of money, but when you’re trying to attract highly qualified, experienced lawyers to leave private practice to serve on the bench, and to be beyond reproach, more and more lawyers are choosing not to because of, partially, the salary and the pension benefits.

Robinson: This year, there will have been more cases filed in the state courts of Florida than will have been filed in the entire federal system of the United States.

Over 95 percent of the cases filed in the United States are filed in the state courts. So when the state courts are underfunded, as they are in Florida, a large portion of the administration of justice is being delayed, and justice is being denied, and business suffers, the public suffers. A mother trying to protect her children on Friday from drugs or violence in the home, suffers. It gets real personal at the local level.

The argument has always been the equal branch of government. Now it seems to be an issue of economics as well.

Hawkins: We studied this issue at The Florida Bar. We have a statistic which shows that in 2009, there was a $17.4 billion loss in Florida economic output due to courts being underfunded. That was a study done by the Washington Economics Group.

That translated into adverse impact on 120,000 jobs in Florida. When I talked to the governor about it, his primary concern was, how can we make the system work even more efficiently so that businesses will not be fearful of getting bogged down in litigation in Florida?

I think there is a perception that Florida is a very tough climate for businesses coming into the state. The governor made it pretty clear that was a concern of his.

The criminal stuff’s going to go through. Constitutionally it has to go through a certain timeframe.

It’s business disputes, the foreclosure disputes, it’s the employment-related disputes, bankruptcies.

Robinson: Few people ever talk about the alternative. What happens if we continue to underfund our courts? What happens if our courts aren’t there to protect democracy and freedom? What happens when the tyranny of the majority cannot be resisted? What if we didn’t have the courts to protect the minority from the tyranny of the majority? Where would we be on civil rights in this country?

People don’t understand. They don’t think about it. As Judge (John) Broderick, who was compelled a couple of years ago to close the courts in New Hampshire for civil jury trials for an entire year for lack of funding, said, when people sit down to supper every night, they’re not talking about the underfunding of the courts. The fact is, they’re not sitting down together for supper every night.

Our demographics have changed. Our lifestyles have changed. Our conversation has changed. It’s more about video games and “Dancing With the Stars” than it is about government and civics responsibility to the community and so on. That’s the reality.

Hawkins: Part of the reason that people don’t focus on the courts is the lack of basic understanding regarding the critical role that judges play and the critical role that courts play. Part of that would be a lack of education. And part of it is experiential.

If you don’t go through a trial, how is it possible to really understand what a trial judge does? Yet it’s fundamental. But if you haven’t gone through it, how do you understand what they do?

I also think people take courts for granted. They think that like roads, they’re always going to be open. They’re always going to be available. And I think that courts are somewhat victim to the polarization in our political system today, because courts, apart from entities like ours, don’t really have a spokesperson who can defend their role.

Robinson: I come from a fairly large family on my mother’s side, and not a small family on my dad’s side. I can’t remember the last time a member of the family had to call upon the local firehouse or the local emergency room, but we go to sleep every night counting on the fact that it’s there, it’s adequately funded. If we need it, it’ll be there for us. Likewise with our courts.

Unfortunately, in society, as we all know from experience, we only seem to value something when it’s not there anymore. And we’re gradually losing our courts because we’re not adequately funding them. So they’re less and less available to fewer and fewer of us.

What about merit retention of judges? Florida Supreme Court justices and District Court of Appeals judges appointed by the governor are on the ballot every six years and voters decide whether they should remain on the bench.

Hawkins: You’re going to see this situation crystallize around the merit retention vote in November. We’ve had this system in Florida since the voters put it in place in a constitutional amendment in 1976, which is a significant fact. I urge you to go back and study why that happened, to help voters today understand that we had a political morass that was plaguing our court system.

That’s why the voters opted to move away from a politicized court appointment system to what we have today — a merit system. But the point that The Florida Bar is concerned about is in our focus group research, 90 percent of the voters we talked to do not have any understanding of what judicial merit retention is about.

It’s a very difficult exercise in our democracy, and it’s going to be critical for the Fourth Estate to help people understand the importance of what judges do, the importance of their roles, to help people appreciate that a judge is not a congressman.

A judge can’t come out and say, ‘I’m strong on defense, I don’t like gun control, everybody ought to own a rifle’ — he can’t say stuff like that. We’re so conditioned in our democracy to vote for people on name recognition, because of policy positions that they take, that they’re popular — that is absolutely contrary to what a judicial election is about.

I’ll have people say, ‘I don’t know who these candidates are on the ballot, these judges.’ And I’ll say, well, that’s probably actually a good thing. Think about it.

If you’ve got a sitting judge, and you don’t recognize that person’s name, and he or she’s on the ballot, that probably means she didn’t get in trouble, because (that’s) the only time you really see a judge’s name.

That’s so different from representative democracy, where you vote for a congressional candidate because you’ve heard his name, you attribute a policy decision to his or her name. None of that can happen with a judicial campaign.

Voters are going to be confronted with this difficult challenge in November.

Robinson: And ask them to just look at other states where millions of dollars are spent on judicial raises. Look at the circumstances of those election situations and the problems that creates in competing contests of persons running, stating positions that they hold on the issues, the money raised from different constituencies, and the polarized competitions that occur. Do they want that?

No system is perfect. You can take any system that’s out there and find things that are wrong with it because we’re human beings. Nothing is perfect. Sometimes the question is, which is worse as opposed to which is better.

You want a judge that’s going to make a decision based on who’s got the most money in the courtroom? Who goes to what church, who’s affiliated with what party, who’s married to so-and-so, who plays golf at what country club?

You want a judge who makes a decision on what the facts are, those admitted into evidence, and what the law is.

What would you like to add?

Robinson: Volunteerism among lawyers is generally unrecognized and unappreciated because of that lack of awareness on the part of the public generally. The American Bar Association, with almost 400,000 members, is made up of volunteers. No one has to belong to the American Bar Association. Nobody is required to contribute all this time. Lawyers doing volunteer service is part of our DNA. It is who we are professionally, it is both our privilege and our responsibility, and it is characteristic of lawyers in this profession, going back to the very beginning.

Most folks can recall through their readings that John Adams heroically stood up and defended British soldiers who were wrongfully accused in the Boston Massacre for having shot into the crowd. But very few people remember that John Adams, as a lawyer in private practice, (as a) volunteer, spent his own dime on his own time to travel back and forth to Europe to garner support for the American Revolution and spent all that time in the Continental Congress helping put together our Constitution and so on.

I challenge that it’s almost impossible to find a legitimate nonprofit anywhere in this country that doesn’t have at least one lawyer giving time and/or money and/or leadership and/or legal representation pro bono.

When we’re working shoulder to shoulder with other citizens in a nonprofit setting, we’re not thought of as lawyers. We’re just the neighbor down the street there pitching in with everybody else.

Are all lawyers perfect? Of course not. Nobody’s perfect. But we’re working very hard to be better, and to make a positive difference in the lives of those we are privileged to serve. That’s our goal.

Financial News & Daily Record, Jacksonville, Florida, by Joe Wilhelm, Staff Writer, April 30, 2012

He was smart enough to be the president of the Jacksonville chapter of Mensa. But the brainpower of Stephen Silkowski wasn’t enough to keep him from being disbarred as a lawyer.

Silkowski was kicked out of the legal profession in 2009 after stealing $220,000 from clients. He is now in jail on grand theft charges and scheduled to get out in 2015.

“I am a thief,” said Silkowski at his sentencing hearing 2010. “I have disgraced my profession and gave credence to greedy lawyer jokes.”

Silkowski is one of 33 Duval County lawyers who has lost the ability to practice law since the start of 2000. If you encompass the other counties in Northeast Florida, 49 lawyers have lost the ability to practice law due to some form of disciplinary action taken against them by the Florida Bar.

Disciplinary action includes disbarment, suspension and resignation. Some of those lawyers will have the right to get their licenses back in the future.

Northeast Florida has had 98 lawyers charged with 146 disciplinary actions since 2000; some have been disciplined multiple times. A database of the lawyers disciplined, including the charges against them and the punishments they received, can be viewed at Jacksonville.com. (The information provided to the Times-Union was valid as of April 10, which was the day the Florida Bar gave it to the newspaper.)

Jacksonville Bar Association President Michael Freed said the number of lawyers disciplined in Northeast Florida is low compared to other parts of the state. For example, bar association statistics show 370 lawyers were disbarred statewide from 2006-2011. Only 19 of those disbarments occurred in Northeast Florida.

“I do think it’s a credit to the integrity of the lawyers in this community,” Freed said. “And it’s also because we do a good job of policing ourselves.”

Lawyers are willing to call out each other for ethical behavior, and many also sit on disciplinary boards and participate in Florida Bar events that encourage vigilance, Freed said.

And that vigilance needs to remain, said Chief Judge Donald Moran.

“As Jacksonville grows the legal community isn’t as collegial as it used to be,” Moran said. “That means we can’t have any tolerance for lawyer misbehavior.”

The Florida Supreme Court, which makes the final decision on lawyer discipline, takes a much harder line on misconduct than it did in the past, Moran said.

“There is just no tolerance for unethical behavior with the Supreme Court,” he said, “and they’re right to take that stance.”

When the legal community was smaller, no one wanted to be thought of as a dirty lawyer. But because the community has become too big for everyone to know each other, that type of peer pressure is less effective, Moran said.

Some cases are clear cut. For example, the decision to disbar Robert McKeever, an Atlantic Beach lawyer.

McKeever was charged with beating three boys after forcing them to disrobe in 1997. He was suspended in 1998 and disbarred following his conviction and sentencing to six years in prison in 2000.

He was released from prison in 2002 and could not be reached for comment.

Florida Bar spokeswoman Francine Walker said a lawyer will not be disbarred for criminal charges, only convictions. However, in some instances the Bar will impose an emergency suspension that prohibits someone from practicing law until the issue is settled.

Although the Bar usually initiates proceedings when a lawyer is charged with a crime, other lawyer discipline cases begin with a civil complaint filed against the attorney.

Freed said most complaints are clients complaining about their attorneys.

“The biggest issue tends to be lawyers that fail to communicate with their clients,” Freed said.

Overworked lawyers sometimes don’t understand that returning calls promptly from clients is an important part of what they do, Freed said.

Moran said when he speaks to law students or young lawyers he stresses the importance of client communication.

“It may not seem like a big deal to you,” Moran said. “But it’s a big deal to your client if they can’t talk to you.”

‘THOROUGH PROCESS’

Walker said Bar complaints occur via sworn affidavit. The complaints are confidential, but the lawyer in the complaint is notified about it and given a chance to respond. The complainant is then allowed to see the response.

The complaint goes to a grievance committee of the local county bar association made up of people in the county where the lawyer practices law. The grievance committee operates like a grand jury, deciding whether there is enough evidence to proceed.

And often, there isn’t. From 2006-11 fewer than 10 percent of the complaints led to cases against a lawyer, and of those only about half led to the lawyer being disciplined.

“It’s a very thorough process,” Walker said. “The burden of proof is very high.”

Freed said efforts often are made to settle cases without disciplinary action.

“The main goal of this process is to make sure the public is protected,” Freed said. “It also helps us find lawyers who aren’t following their obligations, and at times allows us to step in and help a lawyer before it’s too late.”

For example, a lawyer who hasn’t been in regular contact with clients often is given a diversionary-type program that teaches better time management techniques, and another lawyer is assigned to help as a mentor.

Freed said young lawyers who are with small firms or in business for themselves often can end up underwater.

“I’ve seen that a lot of the people who get in trouble are often out on an island by themselves,” Freed said. “With no one to help them.”

Walker said there are similar programs for lawyers who might have personal problems or substance-abuse issues. However, disciplinary action is taken if problems continue.

That is noticeable in some of the lawyers disciplined locally. Jacksonville attorney Michael Davie was suspended in 2003 for having a relationship with a client. He then was reprimanded and suspended in 2009 for charging excessive fees and improper accounting. Davie was disbarred in 2010 for charging excessive fees to clients.

FINANCIAL FRAUD

Moran said the one surefire way to get disciplined is to commit some form of financial fraud.

“If you abuse any sort of trust fund, you’re going to get punished,” Moran said. “It’s pretty much guaranteed.”

St. Augustine attorney Gregg Steinberg was disbarred last year after the Florida Bar alleged he’d withdrawn $8,400 without proper authorization from a bank account created by a committee of residents at the Oakbrook community in St. Augustine, and then lied about it to police. Residents created the account to possibly fund legal action against a developer, and Steinberg was the chairman of the committee.

Jacksonville attorney Jay Halsema was disbarred last year, too, after he pleaded guilty to a charge of a scheme to defraud and was sentenced to time served, restitution, community control and community service.

He had worked on the financing paperwork for at least two fraudulent real estate deals worth a total of $1.7 million. Halsema also failed to replace worthless checks given for the purchase of a motorcycle and secured notarization of a Housing and Urban Development document without the presence of his wife, whom he claimed signed the purchase agreement.

Bar officials said the process of filing a complaint against an attorney is not complex, and they encouraged anyone to contact them if they see unethical behavior.

Walker said anyone can file a complaint with the Florida Bar by calling its Attorney Consumer Assistance Program at (866) 352-0707. The Bar will help any individual file a complaint.

“It’s a program that works very well,” Walker said. “It’s been in place for eight or nine years and it helps someone navigate their way through this.”

If people want to hire a lawyer in good standing, it’s best to contact either the state or local bar and ask for a referral, Freed said.

“We’ll set up an initial meeting and we’ll do some vetting of lawyers before we recommend someone,” Freed said.

People also can check out a lawyer’s 10-year disciplinary history by going to Floridabar.org or by calling (800) 342-8060, extension 5839, for a lawyer’s complete history.

 The Florida Times-Union, By:  Larry Hannan, April 28, 2012