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October 17, 2009Kenneth Lawrence MarvinStaff CounselDirector, Lawyer RegulationTHE FLORIDA BAR 651 E. Jefferson StreetTallahassee, Florida 32399-2300Re: Improvingwww.Floridabar.orgpublicityDear Mr. Lawrence Marvin:Thank you for replying to my letter of September 14, 2009, directed to the ExecutiveDirector of The Florida Bar and the Chief Justice of the Supreme Court of Florida,wherein I made the following construction suggestion: “
I respectfully suggest thata list of Pending Complaints and Open Disciplinary Cases bemaintained on the website and regularly updated until disposed of. Thereafter the initial and dispositive information would be maintainedfor 10 years on the respective website-available files of the attorneysinvolved. By ‘Pending Complaints’ I mean each and every complaintreceived, and by ‘Open Disciplinary Cases’ I mean each and everycomplaint that Bar counsel decides to pursue. The informationavailable would of course include the name of the attorney, the dateand nature of the complaint and the current status of the investigation.If a case is not opened or an investigation not conducted on thecomplaint, the disposition then posted to the attorney’s website-available file would state the specific reason for not investigating thecomplaint. When an open case is closed, the specific reason fordisposition would likewise be posted to the attorney’s website-available file.”It appears from your letter that the Bar has taken a lawyerly ordisputatious pose in response to my constructive suggestions, whichwere made in good faith for the sake of positive improvement of atleast the appearance of propriety of the legal profession. Apparentlythe Bar did not take my suggestions seriously enough to forward themto “The Citizens Forum” panel of non-lawyers you have now kindlyinformed me of while impliedly giving them some credit for the factthat any disciplinary files at all are available on your website. Icertainly would like to know who these citizens are and how they cometo sit on the panel.Please correct me if I am wrong to assume that the Citizens Forumpanel does not have any ultimate authority to set Bar policy, the mostof which is formally embodied in the Rules. It is also my understanding
 
that non-lawyers do not control the grievance committees nor can theyveto decisions to discipline or not to discipline lawyers. Ideally, thedisciplinary function would be taken away from the Court and would beoverseen by non-lawyers, as it is in the mother country since the GreatReform.Of course am I glad to see Complaints and Referee Reports on closedcases publicly displayed on your website. This is admittedly a case of “give an inch take a mile.” In the interest of transparency, why notmake the almost entire file immediately available? Why conceal part of the file, and make the consumer of legal services ask for it, and botherstaff to retrieve it – I have already suggested that a PACER-like system,which would require the user to pay the statutory fees per page, mightbe convenient.Unfortunately, the information immediately available on the websiteprovides, in the main, a one-sided, prosecutorial perspective. Naturallymany disciplined lawyers feel they have been unfairly disciplined, and Iknow of one lawyer who insists that the action taken against him waspolitically motivated and due to his allegations of judicial corruptioninvolving an alleged collusion between a judge and a powerful i.e.politically connected law firm. Moreover, he publicly claims that theBar has ignored or refused to investigate his allegations of feloniousconduct brought to its attention.As you know, I have already criticized the Bar policy you made in youremail statement yesterday, to the effect that the Bar keeps no files onlaw firms because they are not licensed hence the Bar cannot answerany inquiries that might suggest that misconduct is motivated orperpetuated by the organized, narcissistic submergence of individualconsciences in “powerful” law firms or pools.
 Now you have stated, “Your assumption that there are files never opened would only becorrect if The Florida Bar was unaware of the conduct.” With all due respect, I havereason 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 outvalid inquiries and complaints, and then insists there is no record because no file wasopened. I have sufficient grounds for suspecting that the Bar receives numerous inquiriesand complaints for which no file whatsoever is opened. That might not involve anyimpropriety, since the Rules do allow for screening. For instance, what if Bar counselreceived a letter from me saying that I wanted a lawyer disciplined because I went to hisoffice and demanded that he take my case on contingency, and he said he does not haveto take contingency cases, and that furthermore, says that in his opinion I have no case? Isuppose I would get a letter in response from the Bar, stating why the Bar is not openinga 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 violationof law.As for inquiries and complaints upon which files are in fact opened and then closedwithout 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 immediatelyavailable to the public, otherwise the consumer of legal services will never know thatthere has been complaints lodged against attorneys and disposed of without disciplineunless he has some prior knowledge from direct involvement in the case or from rumorsand press stories. I have asked the Bar, to no avail, for a copy of the written policymandating destruction of closed disciplinary. You have addressed the destruction policyin your letter, as follows: “Concerning why The Florida Bar destroys a closed file after itsclosure, 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 inmy possession does not actually provide for destruction one year after closure, leavingme to conclude, in the absence of the Bar’s response, that I have the proper schedule andthat the policy you mention is actually unwritten in the formal sense. In any event, Iwould 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. Ayear 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 massivefraud on the people. Were complaints filed with the Bar by lawyers who are now sayingthey 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 andclosed help conceal a conspiracy at the Bar level?For instance, I have been promised a closed file presumably relating to Carlos Loumiet’sinvolvement as an auditor in the Hamilton Bank Fraud. If I had not noticed his name inthe paper, together with a remark by his defense attorney that the Bar had a disciplinarycase 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 theBar 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 theadministrative judge below to admit testimony about the attorney’s lack of diligence andcare 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 sentalong 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 publicizedrepresentation 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 Imistakenly insisted that a newspaper had already reported that a case had been opened, Iwas told, after some pause, apparently to check the computer files, that there was in factanother file open, but nothing else could be said, about the nature of the file etc.
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