Critics question move on Florida Bar probes

Group says it lacks jurisdiction over sitting officials

Critics are questioning a proposal from the Florida Bar that would ban the organization from investigating complaints against sitting constitutional officers, including the attorney general.

The Florida Supreme Court has final consideration over the amendment, which Bar staff argue is a clarification — not a change — to a situation where the

Bar currently has no jurisdiction. The Bar’s Board of Governors signed off on the measure in July after it sailed through a committee on disciplinary procedures unanimously in March.

“Bar staff proposed the amendment because members of the public have questioned why the Bar does not take action against sitting constitutional officers required to be Florida Bar members to hold office,” said Jennifer Krell Davis, a spokesperson for the Bar, in a statement. “... It would be unconstitutional for The Florida Bar to proceed with an investigation against a sitting constitutional officer.”

But critics question the proposal’s timing, which comes months after Attorney General Ashley Moody was publicly chided for joining a Texas lawsuit challenging President Joe Biden’s win in the 2020 election, leading some to call for her disbarment.

“The real question is: Why would you want to tie the hands of the Florida Bar?” Robert Jarvis, a law professor at Nova Southeastern University, asked. “They should be able to investigate any member of the Florida Bar at any time whenever there is any question as to whether or not that officer has committed an act that could get them disciplined. ... Why would you ever want to wait?”

A spokesperson for Moody’s office did not say whether the attorney general supported the proposal or had a comment about critics connecting her to the amendment.

“The Attorney General has had no participation or contact with the committee regarding this issue,” said Kylie Mason, a spokesperson, in a statement. “For questions about the Florida Bar clarifying its rules, please contact the Florida Bar.”

In December, Moody joined more than a dozen Republican attorneys generals in supporting Texas’ attempt to overturn election results in four battleground states won by Biden based on discredited election fraud claims pushed by his opponent, former President Donald Trump.

The U.S. Supreme Court ultimately tossed the lawsuit because Texas lacked standing. Texas Attorney General Ken Paxton, who spearheaded the failed effort, is currently being investigated by his state’s bar association to determine whether his actions amounted to professional misconduct.

While some lambasted Moody for joining the case despite having “an ethical obligation not to join in frivolous, meritless litigation,” more than 1,700 signed an online petition started by South Florida political activist and Washington, D.C., attorney Pam Keith calling for Moody’s disbarment.

“Any lawyer worth their salt, anybody who went to law school and passed the Bar could tell immediately that pleading was a bad-faith exercise in political theatrics,” Keith said.

Keith said the Bar declined to move forward with her complaint, citing Moody’s status as a constitutional officer.

“It is abundantly clear that the petition is simply a meritless political stunt,” Mason said.

Keith said she believes her complaint is part of the reason the amendment was proposed.

“I that it’s not only technically wrong-headed, it is morally bankrupt,” she said. “At a time when our country is still reeling from a presidential administration so rife with criminal corruption ... you would think a Bar with any kind of seriousness would do everything in its power to discourage government corruption, discourage deceit of the people and discourage abuse of elected office. Sadly, the Florida Bar is doing the exact opposite.”

Existing case law prohibits the Florida Bar from taking action against sitting constitutional officers, who are required to be Bar members to hold office, Krell Davis said. She pointed to a confidential 1982 case where the Florida Supreme Court prohibited the Bar from proceeding in disciplinary action against an elected state attorney because it violated the state constitution’s separation of powers provision, which gives the governor the right to suspend prosecutors.

Similarly, the Florida Legislature has the right to impeach and remove constitutional officers required to be Bar members like the attorney general and judges.

The rule now only states that complaints by the Bar about a constitutional officer’s conduct “must be commenced within 6 years after the constitutional officer vacates office.” The proposal adds a sentence that says the Bar is “prohibited” from filing a complaint against constitutional officers while they’re still in office.

The proposal would apply to the attorney general, state attorneys and public defenders, but not their assistants, Krell Davis said.

“The current rule, based on that case law, indicates that the Bar must take action within six years after the constitutional officer leaves office, but does not explicitly state that the Bar does not have jurisdiction while the constitutional officer holds office,” Krell Davis said. “The rule change clarifies the existing situation, in which the Bar has no jurisdiction.”

Daniel Uhlfelder, the lawyer who donned a Grim Reaper costume on Florida beaches and sued Gov. Ron DeSantis over his handling of the coronavirus pandemic, said it’s “not right” for an attorney general to have more protections than any other attorney. A three-judge panel on the First District Court of Appeal asked the Bar and local prosecutor to consider sanctions and discipline against Uhlfelder for using the court as “political theater.”

“The Florida Bar is primarily tasked with protecting the public and improving legal services,” he said. “... I don’t see how allowing this protection or immunity for an attorney general is consistent with that objective.”

Jarvis said he disagrees with the Bar’s argument that the proposal is only a clarification.

“The old rule said nothing about waiting until a constitutional officer was out of office,” he said. “... [A constitutional officer] would have a real incentive to keep running so the clock never starts on the investigation.”

“That’s ridiculous,” he added. “It makes no sense — what it does is it puts off the day of reckoning . ... It’s a bad policy.”

When asked if the Bar was worried about constitutional officers staying in office to avoid potential investigations, Krell Davis said that was “outside the Bar’s control.”

“The Bar would continue to have six years after the constitutional officer left office to commence an investigation of a complaint,” she said.

Jarvis said some could argue that constitutional officers will be diverted from their duties if they also have to deal with Bar complaints. But the Bar dismisses baseless complaints all the time, he added.

“It’s very strange,” he said. “The Bar normally does not give up its disciplinary power easily . ... I think they have a lot of explaining to do.”