Petersen v. The Fla. Bar, Case No. 6:10-CV-86-ORL-WHS-BWN.

• Decision Date: 28 June 2010
• Docket Number: Case No. 6:10-CV-86-ORL-WHS-BWN.
• Citation: 720 F.Supp.2d 1351
• Parties: Robin PETERSEN, Plaintiff, v. The FLORIDA BAR, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

720 F.Supp.2d 1351

Robin PETERSEN, Plaintiff,

v.The FLORIDA BAR, et al., Defendants.

Case No. 6:10-CV-86-ORL-WHS-BWN.

United States District Court,M.D. Florida.

June 28, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Douglas R. Beam, Leslie Allyn Davis, Douglas R. Beam, PA, Melbourne, FL, for Plaintiff.

Barry Scott Richard, Bridget Kellogg Smitha, Greenberg Traurig, LLP, Tallahassee, FL, for Defendants.

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on Defendants' Motion to Dismiss Amended Complaint (doc. 35). The Motion has been briefed and is now ripe for disposition.

I. Background.

Plaintiff, Robin Petersen, is a licensed Florida attorney who commenced this action for declaratory and injunctive relief against numerous defendants, including the Florida Bar, the Florida Bar's executive director John F. Harkness, Jr., and more than four dozen individual members of the Florida Bar Board of Governors in their official capacities. This dispute, in which Petersen alleges ongoing deprivations of his constitutional rights, relates to the Florida Bar's utilization of a peer review criterion in evaluating attorney applications for recertification in particular legal specialties, as well as its refusal to disgorge unfavorable peer review materials to Petersen in connection with the denial of his application for recertification as an elder law specialist.

According to the well-pleaded facts in the Amended Complaint (doc. 27), ¹ Petersen has been certified in Florida as an elder law specialist since 1998. That certification is beneficial to Petersen's law practice in attracting clients and obtaining referrals. Without that certification, his practice would be, in his words, “diminished.” (Doc. 27, at 6.) It is not, however, mandatory for Petersen to maintain a certification as an elder law specialist in order to practice elder law in the state of Florida. To the contrary, the Rules Regulating the Florida Bar unambiguously provide that “[n]o lawyer shall be required to be certified before practicing law in any particular area” and that “[p]articipation in the [certification] plan shall be on a voluntary basis.” Rule 6-3.4(b),(d). Thus, with or without certification, Petersen remains a licensed Florida attorney who is free to engage in the unfettered practice of his specialty of elder law throughout Florida, representing any clients and appearing before any courts in the state as he may see fit with no substantive restrictions on his ability to practice law. The difference is, apparently, that the certification is useful to Petersen in marketing himself, developing clients, and attracting referrals.

By its terms, the Florida elder law certification lapses every five years, at which time the attorney must apply for recertification if he or she wishes to obtain board certification for another term. ² In May 2008, Petersen completed and submitted his second Florida elder law recertification application (having previously been recertified once in or about 2003). On the final page of that application, just above the signature and notary blocks, was a preprinted, four-paragraph section bearing the heading “Release.” One paragraph was set apart from the others, and stated in large, bold-faced, all-capitalized type the following language:

“I FURTHER UNDERSTAND THAT THE PEER REVIEW PROCESS IS UNABLE TO SERVE ITS PURPOSE UNLESS THE INDIVIDUALS FROM WHOM INFORMATION IS REQUESTED ARE GUARANTEED COMPLETE CONFIDENTIALITY. BY APPLYING FOR RECERTIFICATION, I EXPRESSLY AGREE TO THE CONFIDENTIALITY OF THE PEER REVIEW PROCESS AND EXPRESSLY WAIVE ANY RIGHT TO REQUEST ANY INFORMATION OBTAINED THROUGH PEER REVIEW AT ANY STAGE OF THE CERTIFICATION PROCESS.”

(Doc. 35, Exh. A, at 4.) ³

The exhibit reflects that Petersen signed the application form, as presented and without modifying or deleting any of its terms. ( Id.) Petersen does not allege that his signature is not genuine, that defendants unduly pressured him to sign the document, that he did not have a full and fair opportunity to read it, or that he was in any way rushed or impaired during the application process. Similarly, the Amended Complaint is devoid of allegations that Petersen balked at this waiver provision, that he did not understand it, or that he attempted to negotiate with the Florida Bar over its inclusion in his recertification application. To be sure, the Amended Complaint includes a conclusory allegation that “[w]ithout signing the application, including this ‘waiver’ clause, Mr. Petersen could not apply for recertification” (doc. 27, at 6); however, this bald assertion, unsupported by any specific factual allegations, constitutes just the kind of self-serving, unwarranted deduction of fact that federal courts do not accept as true for purposes of a Rule 12(b)(6) motion. There are no allegations that Petersen inquired of the Florida Bar about the necessity of this waiver provision, that any representative of the Florida Bar ever informed him that the waiver was a mandatory condition of his recertification application, or the like. By all appearances, then, the statement in the Amended Complaint that Petersen could not apply for recertification without submitting to the waiver clause amounts to nothing more than his own unadorned surmise and conjecture, untethered to any discernable facts pertaining to defendants' actions or statements. Accordingly, this allegation need not and will not be credited for purposes of the Motion to Dismiss. ⁴

The peer review requirement referenced in the waiver language was prescribed by Rule 6-20.4(c) of the Rules Regulating the Florida Bar, which provides that, to be eligible for recertification as an elder law specialist, an applicant must submit to peer review. That peer review process requires the applicant to name five other attorneys outside his or her law firm “who can attest to the applicant's special competence and substantial involvement in the field of elder law,” and authorizes Florida bar officials to “make such additional inquiries as they deem appropriate to complete peer review.” Rule 6-20.3(d). Those same rules explain that the purpose of peer review is “to solicit information to assess competence in the specialty field, and professionalism and ethics in the practice of law.” Rule 6-3.5(c)(6). Notably, while the rules are clear that peer review is “mandatory for all applicants,” id., they nowhere specify that waiver of the right to obtain such materials is likewise mandatory. At any rate, from a fair reading of the rules, it is evident that the peer review process is not a mere formality; to the contrary, the rules state that “[a]n applicant otherwise qualified may be denied certification on the basis of peer review.” Id. That is precisely what happened here.

The well-pleaded allegations of the Amended Complaint reflect that the Florida Bar's Elder Law Certification Committee recommended in June 2009 that Petersen's recertification application be denied, solely on the basis of unfavorable peer review information, which included “poor” and “below average” ratings as to his reputation in the legal community for ethical conduct and professionalism. (Doc. 27, at 9-10.) In July 2009, the Florida Bar Board of Legal Specialization and Education affirmed the Certification Committee's recommendation and denied Petersen's application for recertification, again based exclusively on negative peer review. Petersen apparently pursued and continues to pursue administrative appeals of that determination, but has not succeeded in overturning that denial. At all stages of the process, Petersen has requested that Florida Bar authorities provide him with peer review materials used in the recertification decision, and has insisted that his unambiguous written waiver of his right to obtain such materials is invalid because he did not execute it voluntarily. In express reliance on his waiver, however, Florida Bar authorities have steadfastly refused to furnish confidential peer review materials to Petersen during his administrative appeals. As a result, Petersen does not know who made negative peer review comments about him during the recertification process, much less the specific contents of those comments.

Based on the foregoing factual allegations, Petersen brought this § 1983 action, asserting violations of a host of his constitutional rights, including procedural due process under the Fourteenth Amendment, substantive due process under the Fourteenth Amendment, freedom of speech under the First and Fourteenth Amendments, and access to the courts under the First and Fourteenth Amendments. A brief synopsis of the stated rationale for each claim will help frame the analysis of defendants' Rule 12(b)(6) motion. In his procedural due process claim (Count 1), Petersen maintains that defendants' failure to provide him with negative peer review materials, despite their reliance on those materials to deny him recertification, effectively deprives him of due process in his administrative challenge of that recertification denial. (Doc. 27, at 12-14.) Petersen's substantive due process claim (Count 2) reiterates his complaint about the confidentiality of peer review materials, but also objects that the peer review criterion utilized in the recertification process “is so vague that it is arbitrary” because concepts such as “reputation for professionalism” are subjective, mushy and standardless. ( Id. at 14-16.) In the free speech claim (Count 3), Petersen maintains that the peer review criterion is unconstitutionally vague and overbroad, such that virtually any communicative speech or conduct could become the subject of negative, secret peer review. ( Id. at 17-19.) It appears from the Amended Complaint that Petersen is contending that his free speech rights are violated by the very existence of a peer review element to the recertification process, as well as by the confidentiality of...