Confidentiality of professionalism panels questioned.

The confidentiality of records from circuit professionalism panels, continuing to promote the existence and use of those panels, and reaching lawyers before they develop bad professional habits are being addressed by the Supreme Court Commission on Professionalism.

The panels were created to informally and locally resolve professionalism issues that don't rise to the level of a grievance complaint for The Florida Bar. Several commission members noted the panels' operations were originally planned to be confidential, but questions have arisen about whether any paperwork created by a panel would be subject to a public records request under Florida's broad public records laws.

"I had a request for direction," said Justice Fred Lewis, chair of the commission, on the confidentiality issue. He added that the only required paperwork is the reports that local panels send him, which he maintains and would produce if he received a public records request.

First Circuit Judge Ross Goodman noted there is good communication between the various panels and a wide variety of operating methods, usually tailored to meet local needs.

"There's a lot of communications going on among the panels informally," he said. "The biggest concern right now is the confidentiality issue. It's all across the spectrum from one circuit that creates no records, not a single piece of paper, to another that has a record retention policy and generates reports."

Some commission members said they had requested legal opinions about panel records and been advised they would be considered public--even though the panels have been promoted as a confidential way to resolve professionalism issues.

Lewis said he would invite a motion from the commission to ask the Supreme Court to clarify the issue, but members instead asked if treating the professionalism panels as a mediation--which is confidential under current law--might be an alternative solution.

Ninth Circuit Chief Judge Fred Laughton warned that might be an imperfect answer. "Mediation usually results because a complaint is filed. While a mediation is confidential, what started it is not."

He added, "We initially advertised that these panels were confidential. I don't know if we would get fewer complaints if these are not confidential. I've been telling people these are confidential, and, if they are not, that's unfair to everyone."

After further discussion, Lewis said he would appoint a committee, including commission members and...