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2007 FLORIDA LEGAL ETHICS REVIEW By: Timothy P. Chinaris Thomas Goode Jones School of Law, Faulkner University, Montgomery, Alabama President, Florida Bar Out-of-State Division Member and Past Chair, Florida Bar Professional Ethics Committee Copyright 2008
The field of legal ethics continues to change and evolve. The following summaries of ethics-related rule changes, rule proposals, cases, and ethics opinions should help busy practitioners keep abreast of relevant developments. Unless otherwise noted the summaries reflect developments in 2007. The summaries are arranged by subject. For continuing updates on Florida legal and judicial ethics developments, please visit the “sunEthics” website (www.sunEthics.com).
2007 RULE CHANGES (AND PROPOSED CHANGES) Florida Bar Board of Governors approves rule allowing past results, testimonials, and characterizations of quality in lawyers’ websites, when accompanied by appropriate disclaimer. In March 2007 the Florida Bar Board of Governors unanimously approved revisions to current Rule 4-7.6, Florida Rules of Professional Conduct, governing lawyers’ websites. If approved by the Florida Supreme Court, the revised rule would require a website’s homepage to comply with all of the Rule 4-7.2 requirements (i.e., general regulations applicable to all forms of advertising), but would permit the interior pages to include past results, testimonials, and statements characterizing the quality of the lawyers’ services – providing that they are factually verifiable and contain appropriate disclaimers. This would be a significant departure from the current rules. Lawyers’ websites would remain exempt from the filing-and-review requirements of Rule 4-7.7 (see Rule 4-7.8(e)). (For reasons unrelated to the content of the proposal, the proposed revisions have not yet been submitted to the Florida Supreme Court.)
Florida Supreme Court amends lawyer advertising rules. In re: Amendments to Rules Regulating The Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (revised opinion). In an opinion originally issued in November 2006 but revised in December 2007, the Florida Supreme Court amended the rules governing lawyer advertising in a number of ways. Some amendments had the effect of tightening advertising regulations, while others relaxed restrictions. Changes proposed by the Florida Bar and approved by the Court include:
The Court rejected some of the Bar’s proposals. The Bar sought elimination of the requirement that a disclosure be made when a non-lawyer spokesperson is used in a television or radio ad. The Court rejected this proposal, stating: “[T]he established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public.” The Court also declined to adopt proposed changes to Rule 4-7.6, concerning computer-accessed communications – which includes lawyers’ websites. "[T]he Court notes that the [Bar's] Board [of Governors] has appointed a special committee to review issues regarding websites and Internet communications. The special committee is charged with making recommendations to the Board if appropriate. Thus, it is not efficient or sound for the Court to address the regulation of Internet advertising at this time . . . The Court will consider the regulation of Internet communications when the Bar files the report of the special committee." Importantly for many lawyers and law firms, in its original opinion the Court left unresolved the issue of whether the advertising rules govern lawyer-to-lawyer communications. The Bar had proposed that communications directed to other lawyers, and communications directed to a lawyer's current or former clients, be exempt from the advertising rules. In its original opinion the Court declined to adopt these proposals. The Bar moved for reconsideration and clarification, asking the Court, inter alia: whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; and whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request. The Court denied the Bar's motion but issued a revised opinion, which largely tracked the original opinion but contained 2 key new features. First, the Court granted the Bar's request to – at least temporarily – have an exemption from the filing and review requirement for communications “mailed only to existing clients, former clients, or other lawyers.” Second, the revised opinion contained a lengthy opinion by Chief Justice Lewis in which he concurred and dissented. He vigorously dissented from the Court's decision to amend Rule 4-7.2 to permit board certified lawyers to refer to themselves in advertising as "experts." He observed: "First, under the commercial-speech doctrine, this Court remains free to restrain deceptive or misleading attorney advertising. Second, 'specialist' and 'expert' are not synonymous; in fact, they are qualitatively different. Furthermore, claims of 'expert' status are inherently misleading. Third, the 'expert' amendments have 'flown under the radar' and have not been adequately or appropriately debated or briefed. Fourth and finally, my view is consistent with both the majority approach across the country, and with Florida’s regulation of another group of certified specialists – board-certified physicians." Finally, and perhaps quite significantly, the Court concluded by requesting "that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising." In its revised opinion the Court stated that the amendments “shall become effective on February 1, 2008, at 12:01 a.m.”
Florida Supreme Court amends Rules Regulating The Florida Bar, including adding new rule governing arbitration clauses in lawyer-client fee contracts. In re: Amendments to the Rules Regulating The Florida Bar, ___ So.2d ___, 33 Fla.L.Weekly S14 (Fla., No. SC06-736, 12/20/2007), 2007 WL 4440381. The lone amendment to the Rules of Professional Conduct was the addition of new Rule 4-1.5(i), titled “Arbitration Clauses.” This rule authorizes a lawyer to include a clause in a lawyer-client fee agreement specifying that any fee dispute will be decided through arbitration, provided: (1) the lawyer advises the prospective client in writing to consider obtaining independent legal advice regarding the advisability of signing the agreement with the arbitration clause; and (2) the agreement contains certain required cautionary language in bold print. Other rule changes approved by the Court concerned:
One proposed change rejected by the Court (at least for the time being) was a proposal to revise the procedural process for amending the Bar rules. The proposal would have added a Court “conference and dialogue” process as an option to the current “case and controversy” process. The Court noted that the proposal raised “several issues that must be studied before implementing such a procedure” and directed the Bar to work with the Court's Rules of Judicial Administration Committee on the matter. The rule amendments are effective on March 1, 2008.
Circuit court mediators are no longer required to be members of the Florida Bar. In re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 969 So.2d 1003 (Fla. 2007). Acting on a proposal from its Committee on Alternative Dispute Resolution Rules and Policy, the Court eliminated the requirement that certified and circuit court mediators be members of the Florida Bar. Florida was in a minority of states with such a requirement. “We understand that by continuing to urge the Court to remove this requirement, the Committee seeks to ensure that Florida maintains its place of preeminence in the alternative dispute resolution field in the United States. After considering the Bar’s comment and the Committee’s well-reasoned response, as well as the numerous comments in this case in support of the Committee’s position, we now remove the Bar membership requirement for certified circuit court mediators . . .” Recognizing that some parties would prefer a mediator with legal training, the Court stated: “[T]here may be situations in which a party to a circuit court mediation may object to the appointment of a mediator who lacks legal training. In such situations, we believe that the circuit court must necessarily appoint a mediator who is a member of The Florida Bar. Accordingly, on our own motion, we also amend Florida Rule of Civil Procedure 1.720(f)(2) to require courts to appoint a certified circuit court mediator who is a member of The Florida Bar upon the request of either party.” The rule amendments were effective November 15, 2007.
Voluntary “Florida Registered Paralegal Program” established. In re: Amendments to the Rules Regulating The Florida Bar -- Florida Registered Paralegal Program, 969 So.2d 360 (Fla. 2007). Responding to a request from the Florida Bar, the Florida Supreme Court approved creation of the “Florida Registered Paralegal Program.” The Program establishes criteria by which paralegals who meet certain minimum standards (e.g., education, work experience), comply with the registration requirements, and adhere to a new "Code of Ethics and Responsibility" may become "Florida Registered Paralegals." The Program is a voluntary registration system, not mandatory regulation of Florida paralegals. The Court viewed the Program as a "first, prudent step toward the desired end" of "establishing high professional standards for the paralegal profession." The Court explicitly left open the possibility that a mandatory regulatory scheme might be implemented in the future. The rules establishing and governing the Program take effect on March 1, 2008, and comprise new Chapter 20, R.Reg.Fla.Bar.
Florida Supreme Court holds Rule 4-5.6(b) (restrictions on right to practice) constitutional. Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). See discussion in “Disciplinary Proceedings” section.
Florida Supreme Court amends rules governing Law School Practice Program (Chapter 11, R.Reg.Fla.Bar). In re: Amendments to Rules Regulating The Florida Bar re; Chapter 11 Task Force, 964 So.2d 690 (Fla. 2007). The Court amended the rules to provide greater clarity regarding the program’s operation.
2007 CASES AND ETHICS OPINIONS (BY SUBJECT) ADVERTISING Florida Supreme Court amends lawyer advertising rules. In re: Amendments to Rules Regulating The Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (revised opinion). See discussion in “2007 Rule Changes” section.
Lawyer licensed only in New York may not open Florida office and advertise for “N.Y. Legal Matters Only” or “Federal Administrative Law.” Gould v. Florida Bar (11th Cir., No. 06-15142, Dec 12, 2007) (not selected for publication in the Federal Reporter), 2007 WL 4403556 , affirming Gould v. Harkness, 407 F.Supp.2d 1357 (S.D.Fla. 2006). In an unpublished opinion the Eleventh Circuit affirmed a U.S. District Court decision that a lawyer licensed only in New York does not have a constitutional right to establish an office in Florida and advertise that he will represent clients on “New York Legal Matters Only” or “Federal Administrative Law.” New York Legal Matters Only. The Florida Bar contended that the lawyer's advertising for these matters would be unlawful. The court agreed. “Under Florida law, it is unlawful for ‘[a]ny person not licensed or otherwise authorized to practice law in [Florida]’ to practice law within the State of Florida. Fla. Stat. § 454.23 (2004). Gould, who is not admitted to the Florida Bar, does not have the authority to practice New York law in Florida. See Fla. Stat., R. Regulating the Fla. Bar 4-5.5(b); Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003); Chandris, S.A. v. Yanakakis, 668 So.2d 180, 184 (Fla.1995); Florida Bar v. Savitt, 363 So.2d 559 (Fla.1978). Because the proposed advertisement concerns unlawful activity, the Florida Bar is entitled to regulate the advertisement. See Cent. Hudson, 447 U .S. at 563-64, 100 S.Ct. at 2350." Federal Administrative Law. The court rejected the lawyer’s assertion that he could advertise and engage in a practice “limited to federal administrative law.” The court stated: “The words ‘federal administrative law’ apply to a broad range of legal issues, and are not limited to the representation of persons before federal agencies. Issues of federal administrative law arise in state and federal courts, as well as before federal agencies. . . . The proposed advertisement for a ‘practice limited to federal administrative law’ is misleading and relates, at least in part, to unlawful conduct. Gould’s proposed speech is not protected by the First Amendment and is subject to regulation by the Florida Bar.”
ATTORNEY-CLIENT RELATIONSHIP Florida Bar ethics committee approves advisory opinion addressing lawyer’s obligations after receiving documents that lawyer’s client had wrongfully obtained. Florida Ethics Opinion 07-1. In a detailed opinion, the Florida Bar Professional Ethics Committee discussed the ethical obligations of a lawyer who receives documents that were wrongfully obtained by the lawyer’s client. The opinion summary states: “A lawyer whose client has provided the lawyer with documents that were wrongfully obtained by the client may need to consult with a criminal defense lawyer to determine if the client has committee a crime. The lawyer must advise the client that the materials cannot be retained, reviewed or used without informing the opposing party that the inquiring attorney and client have the documents at issue. If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation.”
Lawyer appointed as “special counsel” to present mitigation evidence in capital case does not have attorney-client relationship with defendant. Grim v. State, 971 So.2d 85 (Fla. 2007). Criminal Defendant refused to present any mitigation evidence during the penalty phase of his trial, so the court appointed Lawyer to act as “special counsel to investigate and present available evidence at the Spencer hearing.” Defendant was convicted. In his motion for postconviction relief, Defendant alleged that Lawyer had an undisclosed conflict of interest arising from Lawyer's representation of another inmate who had been interviewed by the State but did not testify. The trial court denied Defendant's motion for postconviction relief. Defendant appealed. The Florida Supreme Court affirmed. “Because the appointment of special counsel is solely at the discretion of the trial court, and because special counsel solely represents the public interest, no attorney-client relationship is established between special counsel and the defendant. Therefore, a defendant has no basis for claiming that special counsel’s presentation of mitigation evidence was ineffective.” Because the special counsel did not represent Defendant, Defendant “cannot challenge the effectiveness of [special counsel]’s presentation of mitigation evidence.
Judgment awarding fees to lawyer reversed because there was no evidence lawyer had actual or apparent authority to represent purported corporate client. Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007). A 9-person corporate board of directors was embroiled in an internal dispute, splitting along a 6-to-3 line. Lawyer, who previously represented the corporation on some matters, was asked by 2 officers (President and Vice-president) to represent them in their individual capacities. Lawyer agreed, informing Vice-president "that their agreement for legal services would 'kill' his representation of the corporation, and he made it clear that he would have to bill [the officer] for 'personal representation'." Subsequently the board minority purported to assert control of the corporation and began to pay Lawyer from corporate funds, with Lawyer then purporting to represent the corporation. When Lawyer’s bills later went unpaid, Lawyer withdrew. Lawyer sued and won a judgment against the corporation for unpaid fees. The corporation appealed, asserting that the officers lacked authority to retain Lawyer to represent the corporation. The First DCA agreed and reversed. The court concluded that "[t]here is no competent substantial evidence in the record to support a finding that [President] had either actual or apparent authority to bind the corporation by signing a retainer agreement with [Lawyer]. All of the evidence demonstrates that she did not have such authority." The court stated that there was little doubt that President lacked actual authority to hire Lawyer on to represent the corporation. The court further noted that "[a]pparent authority might be a viable theory of recovery if [Lawyer] reasonably believed that [President] had authority to retain him as the corporation’s lawyer, but that assumption is not reasonable. . . . One faction of the board of directors retained [Lawyer] purportedly on behalf of the corporation to sue another faction of the board. The nature of the engagement was enough in itself to put him on notice that the people hiring him might not speak for the corporation."
Citing Rule of Professional Conduct 4-1.14 (“Client under a disability”), appeals court affirms lower court’s refusal to appoint attorney ad litem for allegedly incompetent father who was represented by counsel in dependency case. S.K. v. Dept. of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007). The Florida Department of Children and Families petitioned to declare Child dependent. Mother consented to the dependency but Father, who was serving a life sentence for murder, did not. At the arraignment hearing, Father “exhibited bizarre thought patterns, prompting the court to appoint counsel for [Father]. Ultimately, the court ordered a competency examination for” Father. After the examination, Father’s counsel moved for a continuance of the final hearing because he believed Father was incompetent. Counsel also requested appointment of an attorney ad litem for Father. The trial court continued the hearing for 30 days, but declined to appoint an attorney ad litem. At the final hearing the court found Child dependent. Father appealed, arguing that he had been denied due process “by proceeding while he was incompetent to participate in his defense and by failing to appoint an attorney ad litem to represent him.” The Fourth DCA affirmed, stating that it did not understand Father’s request for appointment of an attorney ad litem. Father “already had counsel, and counsel was not prevented from advocating on his behalf.” After quoting Rule of Professional Conduct 4-1.14, the court stated that “unless the client is completely unable to express and act in his own interest, the attorney can continue to represent him. When the client cannot adequately act in his or her own interest, the lawyer seeks the appointment of a guardian, not an attorney ad litem.” The court commended the job performed by Father’s counsel and further noted: “As [Rule 4-1.14] suggests, appointment of a guardian for an incompetent person may be appropriate in some circumstances, even within a dependency proceeding. We need not address that issue, because no one requested the appointment of a guardian. Nor was the appointment of a guardian ad litem requested.
CANDOR TOWARD THE TRIBUNAL “High-low” agreement not prohibited as matter of public policy, and should not have been disclosed to jury. Gulf Industries, Inc. v. Nair, 953 So.2d 590 (Fla. 4th DCA 2007). Plaintiffs sued 2 defendants for injuries allegedly arising out of 3 auto accidents. Plaintiffs’ uninsured motorist carrier ("Travelers") admitted that uninsured drivers were responsible for the first 2 accidents. A business ("Gulf") admitted responsibility for causing the third accident, but contested that it was liable for the claimed damages. A jury verdict was returned for Plaintiffs in the amount of almost $7 million, apportioned between Travelers and Gulf. During the trial Gulf’s counsel asked the other parties whether there were any settlement agreements among them. Both Plaintiffs’ counsel and Travelers’ counsel disclosed the agreement and Gulf consequently moved for mistrial, in the alternative asking the trial court to disclose the agreement to the jury. The court denied the motion and refused disclosure. Gulf appealed. The trial court’s decision was affirmed. In Dosdourian v. Carsten, 624, So.2d 241 (Fla. 1993), the Florida Supreme Court ruled that “Mary Carter” agreements were void as against public policy. Noting that Dosdourian “did not specifically outlaw high-low agreements in addition to Mary Carter agreements,” the Fourth DCA concluded that a high-low agreement was not prohibited: “[T]he high-low agreement did not require Travelers to participate in the trial; Travelers could present a defense or withdraw and simply stand on the agreement. Furthermore, the $1,000,000 range between the high and low limits of the agreement suggests that Travelers had a genuine incentive to defend itself against fault resulting from the first and second accidents.” The court viewed the question of disclosure to the jury as “perhaps more contentious.” After surveying other court decisions, the court stated that the “lack of accord concerning publication of high-low agreements is perhaps due to the underlying and often conflicting policy considerations. On one hand, secret agreements between plaintiffs and one or more of several defendants can mislead the jury and may ‘border on collusion,’ thereby robbing the judicial system to some extent of its truth-seeking function. [Citations omitted.] Yet, while disclosure may avoid collusion between plaintiffs and settling defendants . . . it may also lead the jury to believe that those plaintiffs and settling defendants conspired to prevent a fair trial.” The appeals court concluded that “introduction of the agreement into evidence would have been unnecessarily prejudicial” and was not required.
CONFIDENTIALITY AND PRIVILEGES Florida Bar ethics committee approves advisory opinion addressing lawyer’s obligations after receiving documents that lawyer’s client had wrongfully obtained. Florida Ethics Opinion 07-1. See discussion in “Attorney-Client Relationship” section.
Litigation privilege applies in all causes of action, statutory as well as common law. Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007). The Florida Supreme Court exercised its conflict jurisdiction to resolve a conflict between 2 District Courts of Appeal concerning whether the litigation privilege applies to statutory causes of action as well as common law ones. Relying on Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994), the high Court concluded: “[W]e hold that the litigation privilege applies in all causes of action, whether for common-law torts or statutory violations.”
Husband’s statement to lawyer that he intended to kill Wife not privileged, because Husband did not make statement in context of seeking legal advice from lawyer. State v. Branham, 952 So.2d 618 (Fla. 2d DCA 2007). Husband and Wife were having marital problems. Lawyer represented Husband on some matters not related to the divorce. Lawyer knew both Husband and Wife, and told both of them that he could not represent either of them in their divorce. While talking with Lawyer during a “social visit” to Husband's house, Husband asked if Lawyer was his attorney. When Lawyer replied “sure,” Husband stated that he was going to kill Wife. Husband repeated the threat several times during the conversation. About a week later Husband allegedly killed Wife. Before Husband’s indictment, Lawyer was subpoenaed by the State. Lawyer raised the issue of attorney-client privilege, but the judge directed Lawyer to answer the State’s questions. After Husband was indicted, Husband raised attorney-client privilege to prevent Lawyer from testifying. The court ruled that the communications were privileged. The State appealed. The Second DCA reversed. “[T]he evidence before the trial court unequivocally established that in the conversation with [Lawyer] at the defendant’s home, the defendant never asked for any legal advice and [Lawyer] never gave any legal advice. The defendant did not ‘consult’ [Lawyer] ‘with the purpose of obtaining legal services,’ and [Lawyer] did not ‘render[ ] legal services’ to the defendant. . . . The defendant's statements to [Lawyer] that the defendant intended to kill his wife were not ‘made in [connection with] the rendition of legal services to’ the defendant. . . . In ruling that the statements made by the defendant to [Lawyer] were subject to the lawyer-client privilege, the trial court failed to apply the clear – and clearly applicable – provisions of [Fla.Stat.] sections 90.502(1)(b) and 90.502(2).” In the final analysis, the conversation “was totally unrelated to any lawyer-client relationship between [Lawyer] and the defendant.”
Transcript of insured’s examination under oath taken by insurer protected from third parties by attorney-client privilege. Reynolds v. State, 963 So.2d 908 (Fla. 2d DCA 2007). Insured faced criminal charges and potential civil liability arising from an incident. Insured’s policy arguably provided coverage for the civil damages. Pursuant to the policy, Insurer required Insured to submit to an examination under oath. The criminal prosecutor learned of the examination and sought production of the transcript for use in the criminal case. Insured resisted on grounds that included attorney-client privilege. The trial court ordered production. The Second DCA quashed the order. “In Vann [v. State, 85 So.2d 133 (Fla 1956)], the Florida Supreme Court recognized that a communication from the insured to the liability insurance company is privileged if the communication is intended for the purpose of assisting the insurance company’s attorney in defending the insured. 85 So. 2d at 138.” Because Insured gave the examination under oath “as required in a cooperative effort between the insured and the insurer,” the attorney-client privilege applied to protect the transcript from compelled disclosure to the criminal prosecutor.
In bad faith case brought by third party (not the insured), trial court erred in ruling as a matter of law that attorney-client privilege did not apply to communications made by insurer and insured with their counsel. Progressive Express Ins. Co. v. Scoma, ___ So.2d ___, 32 Fla.L.Weekly D1187 (Fla. 2d DCA, No. 2D06-2294, 5/4/2007), 2007 WL 1296007. Insured was sued by Plaintiff in a tort action. Insurer provided a defense. A judgment substantially above policy limits was entered against Insured, who then filed bankruptcy. Plaintiff, brought a bad faith suit against Insurer “as a third-party beneficiary to the insurance contract.” Plaintiff asserted that she stood in Insured’s shoes as a matter of law, although Insured had not assigned the bad faith claim to her. Lawyer, who represented Insured in the underlying tort case, represented Insurer in the bad faith action. Plaintiff sought discovery of all documents in Insurer's possession relating to the tort claim, arguing that "the attorney-client privilege did not apply to any confidential communications between [Insured], [Insurer], and their respective counsel in the underlying tort action" because she stood in Insured’s shoes in the bad faith case. Insurer objected on grounds of attorney-client privilege and work product. The trial court decided not to conduct an in camera inspection of the documents in question, instead ruling that "as a matter of law the attorney-client privilege did not apply to protect confidential communications made by [Insurer] and [Insured] with their counsel during the underlying tort suit from discovery by [Plaintiff] in her bad faith suit." Insurer then petitioned the Second DCA, seeking a writ of certiorari to quash the trial court's order. The appellate court quashed the order. The trial court departed from the essential requirements of law when it held that the attorney-client privilege did not apply. The opinion extensively discussed the nature of bad faith cases, both "first-party" and "third-party," and the attorney-client privilege issues that relate to these claims. (Because Insurer did not argue its work product claim in the certiorari proceeding, the appeals court did not address it.) Insurer was seeking to protect two categories of communications: its own confidential communications with its counsel regarding Plaintiff's tort suit; and Insured's confidential communications with the lawyer who represented him in the tort suit. The court summarized its holding: "We conclude that any communications between [Insurer] and its personal counsel are clearly protected by the attorney-client privilege. Moreover, we conclude that although [Plaintiff] may 'stand in the shoes' of [Insured] for the purposes of standing to bring a bad faith action, that position does not permit her access to otherwise privileged communications between [Insured] and his counsel in the wrongful death action, at least in the absence of a waiver of the privilege by [Insured] or his written assignment of the bad faith claim. A person does not waive or otherwise lose an attorney-client privilege merely because a third party is authorized to file a lawsuit against the person's insurance company." The court relied heavily on the attorney-client privilege statute, Fla.Stat. sec. 90.502, noting that earlier Florida cases in this area were decided prior to adoption of the statute.
Trial court must hold evidentiary hearing before compelling testimony on basis of crime-fraud exception to attorney-client privilege. BNP Paribas v. Wynne, 967 So.2d 1065 (Fla. 4th DCA 2007). Plaintiff sued Defendant and sought an ex parte writ of garnishment against Defendant’s accounts. Vice President of Plaintiff signed an affidavit in support of the garnishment motion. Later in the litigation Defendant sought to question Vice President regarding information claimed to be protected by the attorney-client privilege. Defendant moved to compel Vice President's testimony, urging that the crime-fraud exception to the privilege applied. The court did not take testimony at the hearing on the motion to compel, but ruled that the fraud exception applied and that Vice President could not invoke the privilege at his deposition. The Fourth DCA quashed the order. There must be “an adversarial proceeding that would allow both parties to present evidence and argument on the issue” of whether the crime-fraud exception applies. In the instant case, however, the trial court had not held an evidentiary hearing to determine the essential facts. Accordingly, the appeals court directed the trial court to conduct a hearing in compliance with the procedure set forth in American Tobacco Co. v. State, 697 So.2d 1249 (Fla. 4th DCA 1997).
Lawyer who breaches client confidentiality after attorney-client relationship has ended may be liable to client for malpractice, but client must allege what confidence was breached. Elkind v. Bennett, 958 So.2d 1008 (Fla. 4th DCA 2007). Lawyer represented Client, Client's business associate (“Associate”), and their business venture (“the Venture”) in a labor dispute brought by Employee. Following Lawyer’s investigation, the matter with Employee was settled. Subsequently Client sued Lawyer for legal malpractice. Client alleged that, 6 months after the Employee matter was concluded, Lawyer revealed to the Venture’s management confidential information about Client that Lawyer learned from the prior representation of him in the Employee matter and that the Venture then used that information to have Client fired. The trial court dismissed the complaint, ruling that Client had not stated a cause of action for legal malpractice because Lawyer disclosed the confidential information obtained from Client after his representation of Client, “and thus was not in privity with [Client] at the time of the disclosure. As privity is an essential element of a cause of action for legal malpractice, the trial court reasoned that the complaint should be dismissed for failure to allege privity.” Client appealed. The Fourth DCA reversed, stating that it was aware of no authority requiring that Lawyer must still be in privity with Client when he disclosed the confidential information. Citing Florida Rules of Professional Conduct 4-1.6 and 4-1.9(b), the court noted that a lawyer has a continuing duty not to disclose client confidences after a representation has terminated. The trial court had refused to rely on the Rules of Professional Conduct as establishing any legal duty on Lawyer's part, pointing to the portions of the Preamble that stated “[v]iolation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached” and that “nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty.” The appeals court rejected this reasoning, concluding that the confidentiality provisions of the Rules of Professional Conduct were based on lawyers’ fiduciary obligations that existed long before they were included in the ethics rules. “[W]e hold that a breach by an attorney of a duty of confidentiality to his or her client which causes damage to the client may be enforced by way of an action for legal malpractice.” The court remanded for further proceedings so Client could amend his complaint to “allege what confidence was breached and how its disclosure damaged” him.
Plaintiff permitted to depose defendants’ law firm in effort to prove that court has jurisdiction, despite attorney-client privilege and work product objections. Marbulk Shipping, Inc. v. Bhagat, 950 So.2d 380 (Fla. 3d DCA 2007). Plaintiff was injured on a foreign ship in Bahamian waters and filed a Jones Act claim in Florida state court. Defendants moved to dismiss on jurisdictional grounds. Plaintiff asserted that the transport arrangements were made by Defendants' Law Firm and thus related to jurisdiction. Plaintiff served a subpoena duces tecum on Law Firm. Defendants objected on attorney-client and work product privilege grounds. The court entered an order permitting Plaintiff to depose a representative of Law Firm “for the limited purpose of discovering the nature and scope of its involvement with [Defendants], including contracts relating to provisions of maintenance and cure of the plaintiff in the present case for jurisdictional purposes.” The Third DCA denied Defendants’ certiorari petition. “The trial court’s order does nothing more than allow for the taking of the deposition of the law firm on a narrow issue. As such, the trial court’s order does not depart from the essential requirements of law. [Citations omitted.]”
Discovery order requiring production of documents supporting specific allegations of plaintiff's complaint quashed due to work product privilege. Hargroves v. R.J. Reynolds Tobacco Co., ___ So.2d ___, 32 Fla.L.Weekly D2346 (Fla. 2d DCA, No. 2D07-204, 9/28/2007), 2007 WL 2808231. Plaintiff sued Defendant tobacco company. Defendant requested production of documents supporting specific allegations of the complaint. Plaintiff objected on work product grounds. After the trial court overruled that objection Plaintiff produced 4 DVDs containing thousands of documents, but did not specify which documents supported which of the complaint's allegations. The trial court then directed Plaintiff “to identify the documents responsive to each specific request in [Defendant’s] third request for production.” The Second DCA quashed the order based on Northup v. Acken, 856 So.2d 1267 (Fla. 2004). The trial court’s order departed from the essential requirements of law because it compelled Plaintiff to advise Defendant which of the already-produced documents were relevant to specific allegations in the complaint. Additionally, the court noted that the order was “overbroad because it is not limited to documents that [Plaintiff] has determined he will use at trial.”
Store’s documents relating to its “civil theft recovery program” involving suspected shoplifters are protect from discovery as work product. Publix Supermarkets, Inc. v. Johnson, 959 So.2d 1274 (Fla. 4th DCA 2007). Supermarket operates a “civil theft recovery program” for suspected shoplifters. If participants fail to complete the program, Supermarket may seek civil or criminal remedies through the courts. Shopper was stopped for suspected shoplifting. He declined to participate in the program. Shopper was acquitted of criminal charges and then sued Supermarket for false imprisonment and malicious prosecution. Shopper sought to discover correspondence from Supermarket’s lawyers to other suspected shoplifters related to the civil theft recovery program. The trial court denied Supermarket’s objections to production. Supermarket then petitioned for certiorari review, “claim[ing] entitlement to the work-product privilege and assert[ing] the privacy rights of the non-party shoplifters.” The appellate court quashed the trial court’s order denying protection to Supermarket. After pointing out that accident reports prepared in anticipation of litigation are not subject to discovery without a showing of undue hardship to obtain the substantial equivalent by other means, the court concluded that the documents at issue "surely were documents created in anticipation of litigation.” Because the documents were protected by the work-product privilege, Shopper was obligated to show that he had a need for such material and could not, without undue hardship, obtain the substantial equivalent of the materials by other means.
JCC erred by ordering worker’s compensation claimant to make non-testifying expert available for deposition over work product objections; no privilege log required. Nevin v. Palm Beach County School Board, 958 So.2d 1003 (Fla. 1st DCA 2007). Workers’ compensation Claimant hired Expert to inspect a building that allegedly caused her injuries. The Employer/Carrier repeatedly sought to depose Expert and to discover Expert’s notes and correspondence. Claimant objected, asserting work product objections and arguing “[w]ith the invariable persistence of a metronome” that Expert was a consulting expert hired in anticipation of litigation and would not be called to testify. The Judge of Compensation Claims (“JCC”) ordered Claimant to make Expert available for deposition. The First DCA quashed the order. “Where an expert has been specially employed in anticipation of litigation but is not expected to be called as a witness at trial, the facts known or opinions held by the expert are deemed to be work-product and may be discovered only ‘upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means’.” Expert was hired in anticipation of litigation and was not expected to be called as a witness at trial; thus, the information sought was work product. Employer/Carrier failed to demonstrate a need sufficient to overcome the work product protection. Additionally, the court rejected the argument that Claimant waived the work product protection by not filing a privilege log. “First, Petitioner is not asserting a document specific work-product privilege. Second, under the facts of this case, provision of a privilege log is a futile act.”
Fourth DCA relaxes stance on entertaining certiorari petitions seeking review of trial court orders denying discovery. Power Plant Entertainment, LLC v. Trump Hotels & Casino Resorts Development Co., 958 So.2d 565 (Fla. 4th DCA 2007) (en banc). The Fourth DCA relaxed its restrictive stance on entertaining certiorari petitions that seek review of orders denying discovery requests. A 3-judge panel had dismissed a petition seeking certiorari review of a trial court order upholding a party's exercise of attorney-client privilege in discovery, on the ground that “no irreparable harm is demonstrated where the court denies a motion to compel discovery, because there is an adequate remedy on final appeal.” The petitioners then filed a motion to certify conflict, “pointing out that other district courts of appeal have allowed review by certiorari of orders denying discovery and [the Fourth DCA] does not.” The court denied the motion to certify conflict but vacated the order of dismissal, to allow further proceedings before a panel of the court. After reviewing its historically restrictive position regarding certiorari petitions seeking review of orders denying discovery, the court, sitting en banc stated: “We have now concluded that we should take this opportunity to recede from the cases indicating we have a hard and fast rule against reviewing orders denying discovery, and join our sister courts which have occasionally, but not routinely, granted review.” The court cautioned that it would allow use of certiorari review sparingly: “[W]e remind counsel that few orders denying discovery will involve information so relevant and crucial to the position of the party seeking discovery, that it will amount to a departure from the essential requirements of law so as to warrant certiorari review. . . . [W]e do not expect to receive petitions from denials of fishing expeditions.”
CONFLICTS OF INTEREST (INCLUDING DISQUALIFICATION) Florida Supreme Court discusses conflicts of interest and imputation of conflicts in context of ineffective assistance of counsel claim. Connor v. State, ___ So.2d ___ (Fla., No. SC04-1283, 11/15/2007) (revised opinion). A convicted Defendant appealed the trial court’s denial of his motion for postconviction relief. Two of his claims related to alleged conflicts of interest. Conflict arising from filing of bar grievance. Attorney Jepeway was appointed to represent Defendant. Jepeway selected Attorney Zenobi as co-counsel. Defendant filed a bar grievance against Jepeway. The trial court considered the grievance meritless but removed Jepeway from the case due to the conflict between Defendant and Jepeway. Zenobi continued representing Defendant. On appeal Defendant argued that his conviction should be reversed because Jepeway represented him at a competency hearing while the grievance was pending. The Supreme Court rejected this contention. Defendant did not allege nor demonstrate how the alleged conflict affected counsel’s performance at the competency hearing. Imputed disqualification among co-counsel. Defendant argued that Jepeway’s conflict of interest was imputed to Zenobi because of the business relationship between the lawyers. They shared office space. The Supreme Court disagreed, explaining: “The Florida Rules of Professional Conduct provide: ‘While lawyers are associated in a firm, none of them shall knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so.’ R. Regulating Fla. Bar 4-1.10(a). The comment to the Preamble of the Florida Rules of Professional Conduct also notes: ‘Whether 2 or more lawyers constitute a firm . . . can depend on the specific facts. For example, 2 practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm.’ Without some further significant demonstration approaching the level of a partnership or professional association, shared office space and secretarial services will not permit imputation of conflict.” Defendant presented no evidence upon which the trial court could have presumed conflict.
Criminal defense counsel’s use of flat fee arrangement raises conflict questions. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). Lawyer represented Defendant, who was charged with and convicted of murder. Defendant moved for postconviction relief. Defendant alleged Lawyer’s performance was ineffective because it was adversely affected by actual conflicts of interest. One conflict related to Lawyer’s use of a flat fee arrangement. The Fifth DCA questioned the fee arrangement, but did not reverse on this ground. Lawyer charged Defendant a flat fee of $135,000, which included “any services of investigators, or experts employed by undersigned attorney.” In his postconviction motion Defendant alleged that Lawyer did not hire an expert witness because the cost would have come from Lawyer’s fee and that, consequently, Lawyer was burdened with an actual conflict of interest. Because the trial court’s finding that Lawyer’s financial conflict did not adversely affect his performance as defense counsel was supported by competent and substantial evidence, the Fifth DCA affirmed the trial court’s denial of this claim. In a footnote, however, the court expressly questioned the propriety of the type of fee arrangement employed by Lawyer, and invited both the Florida Bar and the Florida Supreme Court to look into this issue. The court noted the ethical obligation under Rule of Professional Conduct 4-1.7 to avoid representation situations that “would compromise the lawyer's independent professional judgment.” The court further stated that such fee arrangements “are so susceptible to claims of conflict and questions regarding the ethics of the attorney’s strategic decisions at odds with his or her own financial interests that an attorney should probably expect an ethics inquiry by the Florida Bar with respect to any case for which this type of fee arrangement is used. In fact, this type of fee arrangement is so obviously prone to allegations of ethical lapse that the supreme court may want to consider barring it altogether in criminal cases.”
Criminal defense counsel’s delay in turning murder weapon over to State created conflict resulting in reversal. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). Lawyer represented Defendant, who was charged with and convicted of murder. Defendant moved for postconviction relief. Defendant alleged Lawyer’s performance was ineffective because it was adversely affected by actual conflicts of interest. One conflict related to Lawyer’s handling of the murder weapon. The Fifth DCA reversed. At the outset Defendant had told Lawyer he was considering suicide, and Lawyer responded by telling Defendant “to ‘get rid of the gun’.” Defendant put the gun in a storm drain. Later the two discussed the fact that Lawyer would need to turn the gun over to the State. Defendant told Lawyer the gun’s location. Lawyer, however, delayed disclosure to the State for four months. At trial the State questioned Defendant about hiding the gun. Defendant tried to assert that his actions were based on advice of counsel. Lawyer objected. Lawyer could have testified to clear up the matter before the jury, but did not. The appeals court concluded that this conflict warranted postconviction relief and ordered a new trial. “[Lawyer] made himself a potential witness in the case through his advice and actions regarding the murder weapon. This potential conflict fully matured into an active conflict when the State began questioning [Defendant] regarding his concealment and delay in disclosing the murder weapon at trial. This active conflict adversely affected [Lawyer]’s performance when he prevented [Defendant] from fully explaining [Lawyer]’s advice and actions to the jury, in an attempt to protect his role as counsel by precluding inquiry into an area that would highlight his conflicting role as a witness.” Lawyer labored under an active conflict of interest that adversely affected his performance at trial.
Entering undisclosed retention agreement with clients’ adversary while still representing clients violates conflict of interest rules. Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007); Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). See discussion in “Disciplinary Proceedings” section.
Meaning of “substantially related matter” for purposes of disqualification motion filed by lawyer’s former client discussed by Fourth DCA in context of “playbook” situation. Health Care and Retirement Corp. of America, Inc. v. Bradley, 961 So.2d 1071 (Fla. 4th DCA 2007). Plaintiff sued Nursing Home over incidents occurring between January 2002 and September 2005 that allegedly led to a resident’s death due to Nursing Home’s alleged negligence. While employed with his prior law firm (“Old Firm”) Lawyer represented Nursing Home from February 2001 to December 2004 in defending nursing home litigation in cases involving similar allegations and the same facility. Lawyer left Old Firm and in January 2005 joined “New Firm,” the law firm representing Plaintiff in the suit against Nursing Home. At New Firm Lawyer became actively involved in litigating the suit against his former client. Nursing Home moved to disqualify Lawyer and New Firm. The trial court denied the motion, but the Fourth DCA quashed that order. The appellate court concluded that the disqualification issue should be analyzed using Rule of Professional Conduct 4-1.9 and the “irrefutable presumption” that confidences are disclosed between lawyer and client during the lawyer-client relationship. The court remanded for a determination whether the matters on which Lawyer previously represented Nursing Home were “substantially related” to the instant case. (See Health Care and Retirement Corp. of America, Inc. v. Bradley, 944 So.2d 508 (Fla. 4th DCA 2006) (on rehearing).) On remand, the trial court again denied the disqualification motion. The Fourth DCA upheld the denial, concluding that the prior matters handled by Lawyer were not “substantially related” to the present Plaintiff-Nursing Home suit. The fact that the prior matters involved “the same type of negligence” was not persuasive. The court focused on the Comment to Rule 4-1.9: “[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.” The court viewed the 2006 amendments to another portion of the Comment as “narrowly defin[ing] the concept of ‘substantially related’.” The amended Comment states, in part, that “[m]atters are 'substantially related' for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client.” The court concluded: “Here, [Lawyer] handled a ‘type of problem’ for [Nursing Home] – negligence cases involving patients who suffered from pressure ulcers or falls; the current case, filed after [Lawyer] left [Old Firm], is a ‘wholly distinct problem of that type.’ Rules Reg. Fla. Bar 4-1.9 cmt. (2006). Unlike two products liability cases involving the identical product, each negligence case turns on its own facts. . . . This lawsuit is not ‘substantially related’ to the earlier cases within the meaning of Rule 4-1.9(a).”
Trial court cannot rely only on unsworn argument as basis for disqualifying law firm; governing standard when lawyers move between private firms is Rule of Professional Conduct 4-1.10(b). Bon-Secours-Maria Manor Nursing Care Center, Inc. v. Seaman, 959 So.2d 774 (Fla. 2d DCA 2007). Santa Lucia was a partner in a law firm (“Old Firm”). Dinan, an associate in Old Firm, represented Plaintiff in a suit against Nursing Home. Old Firm dissolved and Santa Lucia joined New Firm. Dinan continued to represent Plaintiff. New Firm represented Nursing Home in Plaintiff's case. Plaintiff moved to disqualify Santa Lucia and New Firm. New Firm defended the motion by filing Santa Lucia’s sworn affidavit, asserting that he never represented nor met Plaintiff and that he had no “actual knowledge of any protected information material to this case.” Plaintiff presented no evidence at the hearing on the disqualification motion. The trial court disqualified Santa Lucia and New Firm. The Second DCA quashed the disqualification. Cases involving imputed disqualification of a law firm based on a prior representation by a newly associated attorney are governed by Rule of Professional Conduct 4–1.10(b). Under this rule disqualification is warranted only if the moving lawyer has actual knowledge of material, confidential information. The trial court was required to determine whether Santa Lucia had actual knowledge of client confidences that would be imputed to New Firm, but did not do so. Although the trial court held a hearing, it did not “give due consideration” to Santa Lucia's affidavit, the only evidence submitted at the hearing, but instead relied exclusively on Dinan’s “unsworn statements at the hearing and unwarranted assumptions stemming from Mr. Santa Lucia’s role as the ‘first named partner’ in his former law firm. . . . [T]he circuit court departed from the essential requirements of the law by relying on unsworn argument as its only factual basis for the entry of an order of disqualification.”
Defense counsel’s “nodding acquaintance” with key state witness was not conflict of interest requiring counsel’s withdrawal. Kormondy v. State, ___ So.2d ___, 32 Fla.L.Weekly S627 (Fla., Nos. SC05-1200, SC06-210, 10/11/2007), 2007 WL 2947870. A Defendant represented by the Public Defender’s Office was convicted of capital murder. He appealed his denial of postconviction relief to the Florida Supreme Court, contending that trial counsel rendered ineffective assistance by failing to withdraw from his case. Defendant alleged that counsel should have withdrawn “because her relationship with the victim . . . posed a conflict of interest that affected counsel’s representation.” At the evidentiary hearing on Defendant's postconviction motion trial counsel testified that during high school she had a “nodding acquaintance” with the victim but that she “ran with a different crowd.” The trial court concluded that defense counsel “did not have a close friendship with” the victim. The Supreme Court noted that there must be an actual conflict of interest before defense counsel’s representation is considered constitutionally deficient and rejected Defendant’s argument, concluding: “We agree with the trial court that counsel’s knowledge of the victim in this case does not support a finding that there was an actual conflict of interest. While counsel was a nodding acquaintance of the victim in high school, this does not demonstrate an actual conflict of interest.”
Per Florida Supreme Court, lawyer-as-witness rule (4-3.7) does not require withdrawal of lawyer who will testify for client at post-trial hearing. Willacy v. State, 967 So.2d 131 (Fla. 2007). A convicted Defendant who was sentenced to death argued on appeal that his trial counsel were ineffective because they had not requested appointment of independent counsel at the hearing on his motion for new trial. Defendant asserted that because trial counsel were necessary witnesses at the post-trial hearing, they were required by Rule of Professional Conduct 4-3.7 to seek the appointment of independent counsel. Defendant contended that their failure to do so created a conflict of interest. The Supreme Court disagreed. Trial counsel’s testimony “was brief and entirely favorable to” Defendant. The Court noted that Rule 4-3.7 “does not mandate the withdrawal of counsel who must testify in a post-trial hearing such as that conducted here.”
A judge in a domestic case did not err by appointing one party’s lawyer as special prosecutor to pursue indirect criminal contempt charges against the other party. Gordon v. State, 960 So.2d 31 (Fla. 4th DCA 2007); Gordon v. State, 967 So.2d 357 (Fla. 4th DCA 2007)) (opinion denying rehearing). Father was accused of violating a permanent domestic violence injunction relating to his contact with Mother, his ex-wife. Mother moved for an order to show cause why Father should not be held in indirect criminal contempt. The trial judge appointed Mother's lawyer as a prosecutor for the charge. Father was found in contempt and sentenced. Father appealed. The Fourth DCA reversed due to the failure to appoint counsel for Father at the contempt hearings. The court also addressed other claims raised by Father that might arise on remand. One of these issues was the trial court's appointment of Mother's lawyer as special prosecutor. After a lengthy discussion of Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) and other cases, the court concluded that Vuitton does not bar a party’s attorney from participating in a contempt hearing in the family law context. In its opinion denying rehearing, the court elaborated on the independent prosecutor issue. “There is a great difference between an ‘appointed’ prosecutor who develops facts to support a finding and one who misuses the appointment for injustice and oppression. . . . This case did not review a trial court’s refusal to remove an abusive and oppressive prosecutor; it addressed the question of whether appointment of a party’s attorney to organize and present evidence at a criminal contempt at a hearing was barred in all cases. Nothing in this opinion precludes or prejudges a motion in the circuit court to remove the appointed prosecutor in this case.”
DISCIPLINARY PROCEEDINGS Florida Bar prosecutors absolutely immune from civil liability for actions taken in connection with official duties, even if actions taken intentionally and maliciously. Spano v. Hoffman, 968 So.2d 674 (Fla. 4th DCA 2007). Plaintiff sued 2 Florida Bar employees, alleging defamation and tortious interference with business relationships. The court dismissed the complaint because “the alleged statements were absolutely privileged because they were made by Florida Bar employees in connection with their official duties during the course of Bar disciplinary proceedings.” The Fourth DCA affirmed. “An absolute privilege attaches regardless of whether such statements were made with malice, so long as the employees were acting within the scope of their duties.”
Florida Supreme Court orders respondent lawyer to pay Bar’s costs of seeking review of referee’s recommended discipline, even through lawyer did not seek review. Florida Bar v. Martinez-Genova, 959 So.2d 241 (Fla. 2007) (opinion on rehearing). A referee found Lawyer guilty and recommended a 3-year suspension. Lawyer did not seek Supreme Court review, but the Bar did. The Court agreed that Lawyer should be disbarred. The Bar then filed a petition for rehearing seeking to recover the costs it incurred in seeking review of the referee’s recommended discipline. By a 4-3 vote the Court granted rehearing and ordered Lawyer to pay the Bar’s additional costs of $4,000. The Court stated: "[W]e agree that the Bar’s appellate costs were reasonable and necessary to correct the referee’s erroneous recommendation of discipline for such serious misconduct. We further agree that these costs should be borne by the respondent as a matter of policy." (Emphasis supplied.)
“Failure to acknowledge wrongful nature of conduct” may be used as aggravating factor in disciplinary cases. Florida Bar v. Germain, 957 So.2d 613 (Fla. 2007). Lawyer was charged with violations relating to pursuing meritless claims and lying under oath. The referee found Lawyer guilty and recommended a 91-day suspension, to be followed by probation and an evaluation (and, if necessary, treatment) by a Bar-approved mental health professional. Lawyer petitioned for Supreme Court review. The Court approved the guilty findings, and increased the length of suspension to 1 year. Lawyer had challenged the referee's finding that his “refusal to acknowledge the wrongful nature of his conduct” was a aggravating factor. Lawyer argued that this punished him for continuing to assert his innocence in the disciplinary proceedings. The Court disagreed, discussing its case law on the subject and noting that Lawyer had stipulated to most of the facts and did not dispute that he engaged in the conduct. Rather, Lawyer continued to contend that his actions "did not constitute unethical conduct. These are legal issues." The Court concluded that, "[w]here the issue rests on a legal question, the aggravating factor of failing to acknowledge the wrongfulness of the conduct clearly applies."
Florida Supreme Court approves referee's rejection of drug addiction as “physical or mental disability” mitigating factor. Florida Bar v. Bloom, ___ So.2d ___, 32 Fla.L.Weekly S806 (Fla., No. SC06-1025, 12/13/2007), 2007 WL 4335463. Lawyer was charged with ethical violations. The referee recommended that Lawyer be found guilty and disbarred. Lawyer contended that his drug addiction should be recognized as a physical or mental disability and treated as a mitigating factor, but the referee refused to find his drug addiction as a mitigating factor. The Florida Supreme Court agreed. Whether addiction is a mitigating factor must be determined on a case-by-case basis. “The referee’s rejection of the mitigating factor of disability or impairment is also supported [by the record]. The referee specifically found [Lawyer]’s addiction arose from a lifestyle choice and was of long duration. Although [Lawyer] completed rehabilitation programs and broke free of the immediate grip of the addiction several times, his recovery was always short-lived. Further, there was evidence that [Lawyer] used rehabilitation programs and promises to rehabilitate himself merely to avoid the negative consequences of his conduct. Most importantly, [Lawyer] practiced law and represented clients throughout this period of drug abuse.” The Court contrasted this case with Florida Bar v. Rosen, 495 So.2d 180, 181 (Fla. 1986). “In Rosen, we recognized that 'loss of control due to addiction may properly be considered as a mitigating circumstance in order to reach a just conclusion as to the discipline to be properly imposed.' However, whether an addiction is a mitigating factor is based upon the circumstances of the individual case, as indicated by our use of the word 'may' instead of 'should' or 'must'.”
Lawyer suspended for not disclosing to opposing counsel settlement agreement procured by lawyer’s client and purportedly signed by opposing counsel’s client. Florida Bar v. Nicnick, 963 So.2d 219 (Fla. 2007). Lawyer represented Mother in a child support arrearage dispute with Mother-in-law (to whom Father had allegedly fraudulently transferred assets). Mother-in-law was represented for a period of time during the dispute; Lawyer knew this. Mother was approached by Mother-in-law's "personal assistant," who indicated that Mother-in-law wanted to settle. At Mother's request, Lawyer drafted an outline of a settlement agreement for his client, Mother. Although Lawyer did not expect it, Mother-in-law's personal assistant delivered an executed settlement agreement to Lawyer. Lawyer had reason to believe that Mother-in-law's signature might not be authentic. Lawyer did not inform opposing counsel about the signed settlement agreement "because he did not want him involved." Mother-in-law ceased being represented prior to a hearing. At the hearing Lawyer apparently produced the settlement agreement and "informed the court that the settlement agreement appeared to be signed by the mother-in-law, but he had no independent confirmation of that fact." Although Mother-in-law denied signing it, the court entered judgment for Mother. The Bar brought charged Lawyer with ethics violations. The referee concluded that once Lawyer gave the settlement agreement to his client with the understanding that it would be delivered to Mother-in-law, “he had an obligation to share the document with opposing counsel.” By not sharing the settlement agreement with opposing counsel before presenting it to Mother-in-law, the referee concluded that Lawyer violated Rules of Professional Conduct 4-3.4(a) and 4-8.4(c). (For unspecified reasons, the Bar did not charge Lawyer with violating Rule 4-4.2, concerning communications with a person represented by counsel.) The referee recommended a 91-day suspension plus some ethics education. The Supreme Court approved the findings and recommended discipline. As to the violation of Rule 4-3.4(a) (unlawfully obstructing another party's access to evidence or otherwise unlawfully altering, destroying, or concealing material that the lawyer knows or reasonably should know is relevant to a proceeding), the Court stated: "[Lawyer] asserts that it was within ethical boundaries to conceal a potentially forged settlement agreement until he felt the time was right for it to be revealed. . . . [T]his is not a decision that [Lawyer] was entitled to make. Whether opposing counsel or the mother-in-law knew that the settlement agreement existed or even had a copy of such is irrelevant in this case." Concerning the violation of Rule 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), the Court stated: "It is difficult to understand why [Lawyer] believes that his failure to share the purported settlement agreement with opposing counsel does not constitute a deceitful act. By its very nature, the act of omission demonstrated in concealing a relevant document is deceptive. . . . By concealing the settlement agreement, [Lawyer] was effectively representing to opposing counsel that there was no settlement agreement and that issues remain in the case."
Florida Supreme Court rejects referee’s recommendation and imposes reprimand rather than diversion in case involving lawyer’s “sharp practice.” Florida Bar v. Cocalis, 959 So.2d 163 (Fla. 2007). The Bar charged Lawyer with ethical violations arising from the trial of a dog bite case in which represented the defendant. Shortly before trial plaintiffs' counsel informed Lawyer that a certain treating physician would "testify unequivocally" regarding causation of the injury. This physician was not listed on the witness list as an expert on causation. Without notifying plaintiffs or their counsel, Lawyer allegedly telephoned this treating physician and asked whether he intended to testify regarding causation. Plaintiffs moved for sanctions and to strike the defense's pleadings. The trial court denied the motion. Lawyer had deposed a second treating physician, whose records were attached to his deposition. Plaintiffs' counsel did not stipulate before trial to the records' authenticity. Lawyer sent a trial subpoena to this doctor's records custodian, who mistakenly mailed the records directly to Lawyer. Lawyer did not tell plaintiffs' counsel that the records were sent to him, nor did Lawyer disclose that these records contained a new notation harmful to plaintiffs' case. At trial Lawyer called the records custodian and plaintiffs' counsel stipulated to admission of the records without reviewing them; thus, plaintiffs' counsel was unaware of the potentially damaging notation. When plaintiffs' counsel learned of the notation, he moved for sanctions, to strike the pleadings, and to have the notation removed. The motions were denied. Lawyer emphasized the notation to the jury. A verdict favorable to the defense was reversed on appeal due to the admission of the notation. In the disciplinary case the referee found Lawyer not guilty of most of the charged violations. The referee "stopped short of deciding whether" Lawyer was guilty of the remaining charged violation of Rule 3-4.3, R.Reg.Fla.Bar, but did recommend that Lawyer be referred to the diversionary practice and professionalism program. The Bar petitioned for Supreme Court review. The Supreme Court concluded that Lawyer violated Rule 3-4.3. The Court also rejected the recommendation of diversion, concluding that Lawyer's "misconduct was more than 'minor,' making true diversion inappropriate." The Court described Lawyer’s call to the first treating physician as “unprofessional and unethical,” but was more troubled by Lawyer’s “‘sharp practice’ in failing to advise opposing counsel that he had inadvertently received the patient’s medical records from one of the treating physicians prior to trial, that those records contained notes of a telephone conversation between the physician and plaintiffs’ counsel that was damaging to plaintiffs’ case, and that the records he was asking the trial court to admit into evidence were not the same records as those attached to the treating physician’s deposition. Under these circumstances, [Lawyer]'s conduct offends our well-recognized policy that cases should be decided on the merits and not by a lawyer’s stooping to sneaky or underhanded trial tactics.” Regarding the appropriate discipline, the Court stated: "In our estimation, this is not the kind of minor misconduct sufficiently addressed by diversion. On the other hand—and although it is a close call—we do not believe that the two actions at issue, which occurred about six years ago, warrant a thirty-day suspension, as the Bar urges." The Court imposed a reprimand.
Stiff discipline – including substantial fee forfeiture – imposed on 2 lawyers who entered undisclosed “engagement agreement” with clients’ adversary; lawyers violated conflict rules and rule against entering agreements that restrict lawyers’ right to practice. Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007); Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). Law Firm represented a number of clients in hotly contested litigation against DuPont, manufacturer of the Benlate fungicide that allegedly damaged the clients' crops. Law Firm uncovered evidence that could have been extremely damaging to DuPont, and moved to strike DuPont's pleadings in one of the cases. The trial judge orally ruled that she would strike the pleadings. Because of the effect such an order could have in many other similar cases, DuPont hoped to settle before the judge issued her written order striking the pleadings. While negotiating under severe time constraints, it became apparent that DuPont did not want Law Firm bringing similar claims against it in the future. Law Firm and DuPont entered into an "engagement agreement" under which Law Firm “accepted DuPont's offer to be retained for $6,445,000 and to perform unspecified work concerning Benlate matters.” Law Firm’s work for DuPont was to commence “upon completion of all activities on behalf of our existing Benlate clients.” Law Firm then received the payment from DuPont. Only one of the Law Firm's clients was informed about this engagement agreement. The Florida Bar investigated the activities of Law Firm and its 4 partners. Two of the partners had limited involvement concerning the engagement agreement; one was reprimanded and the other suspended for 90 days. The other 2 partners received stiffer discipline based on the Supreme Court's assessment of their culpability. In each of these 2 cases the Court rejected the discipline recommended by the referee and imposed stricter discipline. Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007). The Court characterized Rodriguez and St. Louis (see below) as “the firm's principal actors in developing and executing the secret engagement agreement.” Rodriguez's participation in negotiating the agreement was a conflict of interest due to his simultaneous allegiance to both DuPont and his Benlate clients. The referee recommended that Rodriguez be found guilty of violating rules concerning conflicts of interest, prohibited fees, and improper restrictions on a lawyer’s right to practice law. The referee recommended a public reprimand, 4 years of probation, and payment of the Bar's costs. The Supreme Court instead imposed a 2-year suspension. Rodriguez violated the conflict rules when he “became an agent for DuPont while still representing his Benlate clients against DuPont.” Regarding the violation of Rule 4-5.6(b) (generally prohibiting restrictions on right to practice), the Court cited out-of-state cases and stated: "Attorneys who engage in such engagement agreements receive severe sanctions, even when the misconduct is far less egregious than that in the instant case.” The Court suspended Rodriguez for 2 years and ordered him to forfeit his fee, including taxes and interest (an amount in excess of $1,440,000), to the Client Security Fund. Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). The Supreme Court viewed St. Louis's conduct as the "most egregious" of the Law Firm partners. In addition to the misconduct alleged in the Rodriguez case, the referee found that St. Louis lied to a circuit judge about the engagement agreement and that he made misrepresentations by omission in connection with the Bar's previous investigation into the Law Firm's representation of the Benlate clients (which culminated in a consent judgment). Rejecting the referee's recommended of a 2-year suspension, the Court imposed disbarment and fee forfeiture, ordering St. Louis to disgorge $2,277,663, plus interest accruing from August 12, 1996, to the Bar's Client Security Fund. The Court rejected the recommendation that the total amount of restitution be reduced by the amount that St. Louis paid in income taxes. Instead, the Court stated that "St. Louis can seek a refund of those taxes from the Internal Revenue Service." The Court rejected the contention that Rule 4-5.6(b) (restrictions on right to practice) was unconstitutional.
Rejecting referee’s recommendation, Florida Supreme Court suspends rather than disbars lawyer convicted of felonies. Florida Bar v. Del Pino, 955 So.2d 556 (Fla. 2007). Lawyer pleaded guilty to and was convicted of two federal felonies, tax evasion and mail fraud. The Florida Bar brought disciplinary charges. Lawyer was found guilty and the referee recommended disbarment. Lawyer sought review by the Florida Supreme Court, challenging the disbarment recommendation and the finding of dishonest or selfish motive. The Court concluded that the finding that Lawyer had a selfish motive for participating in the fraudulent transfer of a condominium was supported by the evidence, but accorded this factor less weight than did the referee: "[B]ecause of the unique circumstances of this case, most particularly the compelling evidence of the emotionally and physically abusive relationship between [Lawyer] and her husband, we are convinced this aggravating factor is not entitled to the substantial weight it might command under other circumstances not present here." The Court, however, did accord substantial weight to the aggravating factor of dishonest or selfish motive relating to Lawyer's filing of a false application for extension of time to file tax returns. "As guardians of the law, lawyers have a special obligation to honor the law themselves, including the tax laws." As to discipline, the Court recognized that disbarment is the "presumptively correct discipline" for a lawyer convicted of a felony. Relying on two of its prior cases imposing suspension rather than disbarment, however, the Court determined that the mitigating evidence in Lawyer's case was sufficient to warrant a 3-year suspension rather than disbarment. The Court detailed its view of the mitigation evidence: "The record reflects without dispute that by all accounts, [Lawyer] was competent, professional, and organized before she began dating her husband, who became a dominant and negative influence in her life. In the months prior to her marriage she began to deteriorate emotionally and the deterioration continued after her marriage. [Lawyer]’s work suffered, and she stopped communicating with her friends and began taking the prescription drug Xanax, on which she became dependent. [], her husband, called her many times a day to check up on her, making it difficult for her to complete her work in a timely manner. She stopped driving her own vehicle to work and stopped carrying a cell phone. According to one witness she was always 'devastated, crying.' Another witness testified that she went from a person who was very organized in every aspect of her life to someone without any control. She and her husband separated at least six times within the first few years of their marriage. [Lawyer] was diagnosed with anxiety disorder, dependent disorder, and other illnesses, including chronic fatigue syndrome. Although she continued to perform her attorney tasks, she let her personal matters slide. She was eventually forced to cut back to only part-time work for her firm and, then, to quit altogether. She testified that she did not state [falsely in her application for an extension of time to file] that her tax liability was $0 so that she would have extra money in her pockets, but only so she would not have to go through what to her had become a major emotional burden because of her anxiety and depression." The Court concluded: "Without minimizing the seriousness of [Lawyer]’s misconduct, we take into account the facts that she did not misuse or misappropriate client funds and she became dependent on prescription drugs as a result of illnesses, depression, and attempts to escape an abysmal personal life (as opposed to recreational drug use). Weighing all of these factors, along with a consideration of our case law, we conclude a three-year suspension is appropriate."
Lawyer suspended for 90 days, rather than 2 years as recommended by referee, for violating competence and conflict rules in handling real property transfer and related probate matter. Florida Bar v. Maurice, 955 So.2d 535 (Fla. 2007). Lawyer prepared a quitclaim deed for Client, transferring ownership to Client's Son and Grandson. Client retained a life estate. Several months later Lawyer prepared a new will for Client. This will purported to bequeath the property to Son and Grandson, and to Grandson's Mother, as well as giving Client's Neighbor/Caretaker a right of first refusal to buy the property. Client died 2 years later without revoking the quitclaim deed. After Client's death Lawyer was hired by Client's heirs to probate the estate. She opened formal estate proceedings "[w]ithout advising the heirs of the quitclaim deed making [Son] and [Grandson] the full owners of the condominium upon [Client]'s death or that no estate was necessary." The Bar charged Lawyer with ethical violations. The referee found her guilty of violating rules concerning competence ( 4-1.1) and conflicts of interest (4-1.7), and recommended a 2-year suspension and additional conditions (e.g., completing certain CLE programs). Lawyer challenged several of the factual findings and conclusions of guilt, as well as the recommended 2-year suspension. The Florida Supreme Court approved the guilty findings but concluded that the recommended 2-year suspension was not supported by caselaw or the Florida Standards for Imposing Lawyer Sanctions. The Standards supported a suspension for the misconduct, but “[a]s the standards do not suggest the appropriate length of a suspension, the Court examines caselaw to determine whether the referee’s recommendation of a two-year suspension has a reasonable basis.” The Court was of the view that applicable cases “support suspension as the appropriate sanction, but also demonstrate that a two-year suspension is too harsh.” The Court suspended Lawyer for 90 days (along with the other conditions recommended by the referee).
Despite mental health mitigation and referee’s recommendation of suspension, Florida Supreme Court disbars lawyer charged with misappropriating client funds. Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007). Lawyer was charged with misappropriating client funds. Lawyer introduced evidence of severe depression. The referee found Lawyer guilty, found 2 aggravating circumstances and 10 mitigating circumstances (including mental impairment), and recommended a 3-years suspension followed by a 5-year probation. The Florida Supreme Court rejected the recommendation and instead disbarred Lawyer. The Court pointed out that "when a lawyer intentionally takes funds held in trust for the lawyer's own use" such conduct "necessarily must result in the severest of sanctions." Disbarment is presumed to be the appropriate sanction under both the Florida Standards for Imposing Lawyer Sanctions and existing caselaw. Although in some misappropriation cases the Court has approved a suspension rather than disbarment, the Court noted that such cases “were based either upon less culpability in the taking of the funds or substantially more mitigation.” Lawyer's evidence of mitigation was not sufficient to overcome the presumption of disbarment.
For the first time, the Florida Supreme Court uses conditional admission to readmit lawyer who resigned for disciplinary reasons. Florida Board of Bar Examiners re: Mark Stephen Barnett, 959 So.2d 234 (Fla. 2007). Barnett resigned from the Florida Bar in lieu of disciplinary proceedings in 1997. In 2004 he applied for readmission. The Board of Bar Examiners filed specifications "detailing incidents in his past that reflected negatively on his character and fitness to practice law" that included alleged misappropriation of clients fund while still in practice, criminal charges, failing to file numerous federal tax returns, and failure to honor financial obligations. At the hearing Barnett testified about his history of substance abuse and recovery. The Bar Examiners concluded that he had established rehabilitation and recommended that he be conditionally readmitted, with a probationary period "because of the additional stress Barnett is likely to face upon his return to the practice of law." Calling "[d]isciplinary resignation is tantamount to disbarment," the Florida Supreme Court noted that Barnett had the burden of presenting clear and convincing evidence of rehabilitation. The Court concluded that Barnett had met this burden and readmitted him on a conditional basis for 3 years, including probationary conditions such as abstention from alcohol and controlled substances. Three justices dissented, asserting that conditional admission should be reserved for first-time applicants.
Florida Supreme Court disbars lawyer who practiced while suspended. Florida Bar v. Walkden, 950 So.2d 407 (Fla. 2007).
FEES (INCLUDING ATTORNEYS’ LIENS) Florida Supreme Court rules that clause in lawyer-client fee contract cannot waive homestead protection that applied to client's property. Chames v. DeMayo, ___ So.2d ___, 32 Fla.L.Weekly S820 (Fla., Nos. SC06-1671, SC06-2187, 12/20/2007), 2007 WL 4440212. A Lawyer-Client fee agreement stated that Client "hereby knowingly, voluntarily and intelligently waives his rights to assert his homestead exemption in the event a charging lien is obtained to secure the balance of attorney’s fees and costs." Lawyer later withdrew from the case and obtained a charging lien and judgment against Client. The court applied the lien to Client's homestead property. Client appealed, contending that his waiver of the homestead exemption in the retainer agreement was invalid, and could not support a lien on homestead property. The Third DCA reversed, concluding in a plurality opinion that the trial court erred by granting a charging lien on the property in question and reversed. DeMayo v. Chames, 934 So.2d 548 (Fla. 3d DCA 2006). Two judges concurred in an opinion certifying as a question of great public importance the issue of whether the holding in prior Supreme Court cases upon which the Third DCA relied should be overruled by the Florida Supreme Court "in light of of subsequent precedent in Florida and other jurisdictions, and the textual changes made by the people of the State of Florida in Article X, Section 4 of the Florida Constitution in the general election of November 1984." DeMayo, 934 So.2d at 555. The Florida Supreme Court approved the Third DCA's decision. "We continue to hold that a waiver of the homestead exemption in an unsecured agreement is unenforceable." The Court traced its precedent, including Carter's Adm'rs v. Carter, 20 Fla. 558 (1884) and Sherbill v. Miller. Mfg. Co., 89 So.2d 23 (Fla. 1956). Lawyer had proposed 3 grounds that, in her view, supported receding from that precedent: "[1] the 1984 amendment to article X, section 4, which substituted "a natural person" for "the head of family," changed the purpose of the homestead exemption from one protecting the family home into a personal right that may be waived; [2] most states now permit waivers; and [3] permitting waiver is consistent with other cases holding that various constitutional rights may be waived." The Court discussed and rejected each argument, and reaffirmed its holdings in Carter and Sherbill.
Criminal defense counsel’s use of flat fee arrangement raises conflict questions. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). See discussion in “Conflicts of Interest” section.
Florida Supreme Court rejects request to adopt rule of procedure eliminating need for expert witness testimony at attorney's fee hearings. In re: Amendments to Florida Rules of Civil Procedure, 966 So.2d 943 (Fla. 2007). The Florida Bar’s Civil Procedure Rules Committee proposed amendments to the Florida Rules of Civil Procedure. The Florida Supreme Court approved all of the proposals except one. Proposed new rule 1.526 would have provided that “[e]xpert opinion is not required to support or oppose a claim or an award of costs, attorneys’ fees, or both, unless by prior order of the court.” In declining to adopt the proposed rule, the Court stated: “We conclude that the issue of whether expert opinion testimony is required in this context is not one that is appropriately addressed in a rule of procedure. Thus, while we express no opinion on the substance of the committee’s proposal, we decline to adopt it as a rule of civil procedure.”
Judgment awarding fees to lawyer reversed because there was no evidence lawyer had actual or apparent authority to represent purported corporate client. Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007). See discussion in “Attorney-Client Relationship” section.
Court erred in awarding contingent fee to lawyer discharged by client before contingency occurred. Fields v. Klein, 946 So.2d 119 (Fla. 4th DCA 2007). Client employed Lawyer to represent him in a personal injury case on a contingent fee basis. Lawyer submitted a $100,000 demand to the opposing party's insurance carrier in May 2003. Client discharged Lawyer one week later. At the time of discharge the insurance adjuster had orally offered a settlement of $50,000. Client hired successor counsel, who settled the claim for $110,000 in December 2003. Lawyer asserted a charging lien. The trial court entered an order awarding Lawyer her full contingent fee. Client appealed The Fourth DCA reversed, concluding that the contingency had not been realized prior to Lawyer’s discharge. “Consequently, under both case law and the parties’ contract, [Lawyer] is entitled to recover, if at all, only the reasonable value of her services.”
Division of contingent fee between co-counsel in different firms governed by fee agreement, not quantum meruit, even though one co-counsel discharged before contingency occurred. Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007). Two lawyers (Jay and Trazeneld) in different law firms were hired as co-counsel under a written contingent fee agreement wherein each lawyer appeared to be equally responsible to the client for the representation. Jay had been hired first by the client to collect a judgment obtained for the client by a prior law firm. When Jay then discovered legal malpractice by the prior firm he brought in Trazenfeld to assist with the malpractice claim. After Trazenfeld subsequently advanced a claim that Jay had also committed malpractice, the client discharged Jay. Ultimately there was a recovery. Jay filed a charging lien claiming 25% of the fee based on his alleged oral agreement with Trazenfeld. Trazenfeld asserted that he was entitled to the entire fee. The trial court dissolved Jay's charging lien, and Jay appealed. The Fourth DCA reversed and remanded for enforcement of Jay’s charging lien. After noting that Jay’s discharge appeared to be without cause (see Kates v. Robinson, 786 So.2d 61 (Fla. 4th DCA 2001)), the court concluded that the division of the fee was governed by the written fee contract, which “clearly provides for joint sharing between Trazenfeld and Jay without specifying that the share of each is anything other than an equal share.” Thus, the court concluded that under the agreement Jay should be entitled to 50% of the contingent fee. Jay, however, in “a striking illustration of ethical punctilio despite financial disadvantage,” had sought only 25% of the fee as a secondary attorney under Rule of Professional Conduct 4-1.5(f)(4)(D). Jay’s charging lien was effective against Trazenfeld. The court rejected Trazenfeld’s argument that Jay’s only claim, if any, should be in quantum meruit (see Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982)). Rosenberg dealt with fees due from a client and fixes the client's obligation to a lawyer discharged without cause prior to the occurrence of the contingency. In the instant case involving a dispute between co-counsel over how to divide a fee that already had been paid by the client, the court viewed quantum meruit rule of Rosenberg as inapplicable. “As we have noted, the written fee agreement provides that co-counsel are jointly owed the fee. And because the contract did not specify otherwise, the division of the fee would ordinarily be equal—thus undifferentiated and fixed.”
Error to award legal fees and expert witness fees incurred by lawyer in perfecting and enforcing charging lien. Rudd v. Rudd, 960 So.2d 885 (Fla. 4th DCA 2007). Lawyer represented Husband in a dissolution of marriage case. Lawyer withdrew and filed a notice of charging lien for unpaid fees. The trial court entered an order for Lawyer that included not only the unpaid fees but also "$975.00 in legal fees as well as another $1,125.00 in expert witness fees incurred in perfecting and enforcing the lien." Relying on Cole v. Kehoe, 710 So.2d 705 (Fla. 4th DCA 1998), the Fourth DCA reversed, concluding that the trial court erred in awarding fees associated with Lawyer's perfection and enforcement of his charging lien.
Lawyer who withdrew from contingent fee case for health reasons may not have forfeited right to fee. Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007). Lawyer agreed to represent plaintiff Client under a “hybrid contingency” fee ($100.00 per hour plus 30% of any recovery). Shortly before the case was to be tried Lawyer withdrew from the case “for medical reasons.” Client hired another attorney, who allegedly performed substantial work on the case. Client and new counsel settled the case. Lawyer moved for attorney's fees, asserting that he was owed hourly fees plus 30% of the settlement as a contingent fee. The court rendered summary judgment for Client, determining that Lawyer's withdrawal was voluntary and that, consequently, he was not entitled to the additional fees “under the authority of Faro v. Romani, 641 So.2d 69, 71 (Fla. 1994).” Lawyer appealed. The Fourth DCA reversed and remanded. The trial court erred in disposing of the matter on summary judgment because there were genuine issues of material fact. On remand, the court was directed to conduct an evidentiary hearing to determine if Lawyer’s withdrawal was required by Rule of Professional Conduct 4-1.16(a)(2) (lawyer shall not represent client, or shall withdraw if representation has already begun, if “lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client”). If Lawyer’s withdrawal was voluntary, he would not be entitled to additional fees. But if Lawyer's withdrawal was involuntary, he could be entitiled to additional fees on a quantum meruit basis. The appeals court, however, imposed a limit on the amount of any additional fees for Lawyer: "In assessing any additional attorney’s fees, the trial court should take into account the amount of attorney’s fees paid to [Client]’s new attorney and in no instance shall [Client] be responsible for fees, which, in total, exceed his original fee agreement with [Lawyer]." NOTE: The decision did not discuss two points of interest. First, the Faro court indicated that the exception to the rule that a withdrawing lawyer forfeits the right to a continent fee applies when the lawyer was forced to withdraw as a result of the client's conduct. “We hold that when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation. . . . We further hold, however, that if the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs.” Faro v. Romani, 641 So.2d 69, 71 (Fla. 1994). Second, Florida courts have held that a quantum meruit fee paid to a lawyer discharged without cause in a contingent fee case is to be paid from the client's share of the recovery. See, e.g., Jones & Granger v. Johnson, 788 So.2d 381 (Fla. 1st DCA 2001); Doremus v. Florida Energy Systems of South Florida, Inc., 676 So.2d 444 (4th DCA 1996); Stabinski, Funt & De Oliveira, P.A. v. Alvarez, 490 So.2d 159 (Fla. 3d DCA 1986); Adams v. Fisher, 390 So.2d 1248 (Fla. 1st DCA 1980).
$100,000 statutory cap on damages against state agencies in tort actions includes amounts awarded for attorney’s fees. Zamora v. Florida Atlantic University Board of Trustees, 969 So.2d 1108 (Fla. 4th DCA 2007). Plaintiff sued his employer (University) for two claims, age discrimination and retaliation. The jury found for Plaintiff on both claims. Compensatory damages were awarded along with attorney's fees. University moved to limit the damages “to the sovereign immunity cap of $100,000.” The motion was granted. The appeals court affirmed. Fla.Stat. sec. 768.28(5) limits recovery to $100,000 per person for each claim in a tort action against a state agency. The Fourth DCA adopted the reasoning in Gallagher v. Manatee County, 927 So.2d 914 (Fla. 2d DCA 2006), which concluded that the statutory cap is for total recovery, “including attorney’s fees, costs and post-judgment interest.” While expressing sympathy with Plaintiff's argument that such an interpretation could keep injured persons from being made whole, the court stated that “[t]hese are arguments which should be addressed to the legislature.”
Insurer’s workers’ compensation lien does not attach to fees paid to lawyer who prosecuted claimant’s suit against third party tortfeasor. Luscomb v. Liberty Mutual Ins. Co., 967 So.2d 379 (Fla. 3d DCA 2007). After Claimant was seriously injured on the job, Insurer paid workers' compensation benefits. Claimant later sued a third party tortfeasor. This suit was subject to Insurer's subrogation and lien rights (see Fla.Stat. sec. 440.39). Claimant settled the suit for $215,000, which was far less than the amount that had been expended by Insurer (over $1,000,000). Claimant paid his lawyers $86,000 in fees. Insurer sought a lien against the net recovery received by Claimant as well as approximately $50,000 of the fees paid by Claimant to his lawyers. The trial court agreed that the attorney's fees were subject to the lien. The Third DCA reversed, concluding that a workers’ compensation lien recovery could not exceed the claimant’s net recovery. “Section 440.39(3)(a) does not penalize an injured worker’s counsel – who, after all, produced a subrogation recovery for the insurer – for successfully prosecuting the worker’s claim against a third-party tortfeasor.”
In dispute between 2 law partners that involved the “functional equivalent” of an action for an accounting, trial court did not err in awarding attorney’s fees. Larmoyeux v. Montgomery, 963 So.2d 813 (Fla. 4th DCA 2007). Lawyers Montgomery (99%) and Larmoyeux (1%) practiced in a partnership. Larmoyeux decided to leave the firm. Disputes arose over Larmoyeux's claim to a continuing portion of sizable attorney's fees from the state's case against tobacco companies and Montgomery's claim to a portion of the fees generated by cases Larmoyeux took with him when he left the firm. Larmoyeux also sought damages for Montgomery's alleged breach of fiduciary duty, conversion, and failure to allow Larmoyeux access to the firm's books and records. Arbitration and litigation proceedings resulted in an award of attorney's fees to Montgomery. Larmoyeux argued unsuccessfully that there was no statutory or equitable basis for a fee award. He asserted that no equitable claim for fees was cognizable under A.J. Richey Corp. v. Garvey, 182 So. 216 (Fla. 1938), because neither party sought dissolution of the partnership or an accounting. The trial court disagreed and ruled that Montgomery was entitled to fees under A.J. Richey. The court found that the proceedings were the “functional equivalent” of an action for accounting. Larmoyeux appealed, contending that A.J. Richey had been overruled by Florida's adoption of the Revised Uniform Partnership Act. The appeals court disagreed and affirmed. A legislative intent to abolish or limit the common law must clearly indicate such a change, or else the rule of the common law will stand.
Computerized legal research expenses not taxable “costs” to prevailing party. Wood v. Panton & Co. Realty, Inc., 950 So.2d 534 (Fla. 4th DCA 2007). After prevailing on summary judgment in a suit for a real estate commission, Plaintiff moved for attorney's fees and costs under a contractual provision that allowed Plaintiff, as the prevailing party, to “recover all costs incurred including attorney's fees and legal assistant fees.” The trial court awarded costs that included $316.25 in Westlaw computerized legal research expenses. Defendant appealed. The Fourth DCA reversed the award of computerized research expenses, citing Department of Transportation v. Skidmore, 20 So.2d 1125 (Fla. 4th DCA 1998) as holding that computer-assisted legal research costs are overhead and thus are not properly taxable as costs. After surveying the 3 views taken by courts around the country on this issue, the Fourth DCA chose to “decline the invitation to reconsider Skidmore and travel down a different analytical path.”
Fla.Stat. sec. 44.103(6) does not preclude court award of attorney's fees incurred during non-binding arbitration. Midway Services, Inc. v. Custom Manufacturing & Engineering, Inc., ___ So.2d ___, 32 Fla.L.Weekly D2548 (Fla. 2d DCA, Nos. 2D07-897, 2D07-2220, 10/26/2007), 2007 WL 3119729. Defendant was sued for breach of contract. At non-binding arbitration the arbitrator found in favor of Plaintiff. Defendant filed a motion for trial de novo. The jury found in Defendant's favor. Defendant then moved for attorney's fees and costs "pursuant to a prevailing party provision in one of the contracts and a proposal for settlement." The trial court awarded attorney's fees to Defendant "except those incurred during the arbitration proceedings," concluding that Fla.Stat. sec. 44.103(6) (2005) precluded an award of fees incurred during the arbitration. Defendant appealed. The Second DCA reversed. After noting that there were no Florida cases discussing the application of this statute to an award of attorney's fees, the court concluded: “[T]he trial court erred in determining that section 44.103(6)'s silence regarding attorney's fees for a party who prevailed at a trial de novo somehow works to preclude attorney's fees that are authorized on some other basis. We therefore reverse the award of attorney's fees and remand for the trial court to award attorney's fees incurred in the arbitration proceedings below.”
Public official falsely accused of ethics law violations not required to prove “actual malice” to recover fees and costs from accusers. Brown v. Florida Comm’n on Ethics, 969 So.2d 553 (Fla. 1st DCA 2007) (on rehearing). A county property appraiser was the subject of two complaints filed with the Florida Commission on Ethics. The Commission dismissed the complaints. Appraiser filed a claim for attorney's fees and costs under Florida Statutes section 112.317(8) (2004) (now numbered as sec. 112.317(7)), which provides that someone who falsely accuses a public official of an ethics violation is liable for fees and costs if the complaint was made "with a malicious intent to injure the reputation of" the official, with the complaint containing "one or more false allegations" or being made "with reckless disregard for whether the complaint contains false allegations of fact." The Administrative Law Judge ("ALJ") recommended that Appraiser be awarded fees and costs. The Commission, however, denied Appraiser's requests, concluding that section 112.317(8) required "a finding of 'actual malice,' as defined by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254 (1964)." The Commission was concerned that that the ALJ's findings did not "support a conclusion that the complainants entertained serious doubts about the truth of their allegations, as required by the Sullivan standard," and so remanded the matter to the ALJ for additional findings. A successor ALJ reviewed the evidence and concluded that it would not support a finding of "actual malice" under Sullivan. The ALJ recommended that Appraiser's claim for fees and costs be denied, and the Commission agreed. Appraiser appealed. The First DCA reversed, concluding that the statute "does not require a public official who was falsely accused of an ethics violation to prove that the accusation was made with 'actual malice'" in order to recover attorney's fees and costs. The court based its conclusion on the language of the statute. The court noted that it was significant “that the term, 'actual malice,' does not appear in the text of the statute. The Legislature has shown that it understands the precise meaning of this term by using it in the proper context in section 104.271(2), Florida Statutes. . . . By contrast, the absence of this well-known phrase in section 112.317(8) is an indication that the Legislature did not intend to engraft the Sullivan standard into the statutory requirements for recovery of costs and attorney fees.”
Florida Commission on Ethics order denying attorney’s fees to subject of ethics complaint reversed by Fifth DCA. Osborne v. Florida Comm’n on Ethics, 951 So.2d 25 (Fla. 5th DCA 2007). A former Mayor was the subject of a complaint filed with the Florida Commission on Ethics. The Administrative Law Judge (“ALJ”) found for Mayor. The ALJ recommended that attorney’s fees and costs be awarded to Mayor pursuant to Fla.Stat. sec. 112.317(8), but the Commission rejected this recommendation. “[T]he material false allegations were not contained within the ethics complaint itself, but rather were made when the complaint was subsequently explained or expanded by the comments of [complainant]’s attorney. On this basis the Commission as a matter of law declined to approve the award of fees and costs to Mayor.” Mayor appealed. The Fifth DCA reversed and remanded for entry of an order of attorney’s fees and costs, concluding that the Commission's view of the complaint was “too restricted.” The court stated that the complaint "plainly contained in its body the crux of" the false allegations and so Mayor was entitled to the award of attorney’s fees and costs contained in the recommended order.
Cases involving fees in family law matters included: Family Law Rule of Procedure 12.525 (rather than Fla.R.Civ.P. 1.525) applies to motions for attorney’s fees in all cases pending on Rule 12.525's effective date (March 3, 2005). Montello v. Montello, 961 So.2d 257 (Fla. 2007). In a dissolution of marriage case in 2004 Wife’s motion for attorney’s fees was not filed within 30 days of the entry of final judgment. The trial court did not rule on the motion until June 2005, after the enactment of Florida Family Law Rule of Procedure 12.525 (effective March 3, 2005). The trial court granted Wife's motion. Holding that Family Law Rule 12.525 applied rather than Fla.R.Civ.P. 1.525, the Third DCA affirmed (Montello v. Montello, 937 So.2d 1154 (Fla. 3d DCA 2006)) and certified conflict with decisions from other Districts. The Florida Supreme Court approved the Third DCA's decision, holding that "rule 12.525 applied to all cases that were pending on the date of its enactment."
Attorney’s fee award in divorce case should not have been structured so payment could be delayed until youngest child turned 19 (in 2019). Wright v. Wright, 965 So.2d 1168 (Fla. 2d DCA 2007) (on motion for clarification). The final judgment in a dissolution of marriage case provided that Wife’s possession of the marital home could continue until the youngest child turned 19 years of age, in 2019. The judgment also directed Husband to pay attorney’s fees to Wife’s lawyer, and stated that “[a]ny balance due at the time of the sale of the marital home shall be deducted from the Husband's share and paid to the Wife for payment to her attorney.” On appeal Wife’s counsel intervened to challenge the attorney’s fee award, contending that it should not have been tied to Husband’s interest in the marital home because the home might not be sold for some period of time, perhaps until the youngest child reached 19 in 2019. Agreeing, the Second DCA reversed that portion of the judgment. “We conclude that the structure of the award of attorney's fees and costs to the former wife was manifestly unreasonable because despite the trial court’s determination that the former husband had the ability to pay the former wife's fees and costs, payment of the award might not be made until 2019, when the youngest child turns nineteen years old. [Citations omitted.] Allowing such a structure would discourage competent attorneys from representing clients in dissolution of marriage cases, thereby defeating the purpose of the statute providing for attorney's fees and costs in dissolution cases.”
Trial court erred in refusing to order payment of former wife’s attorneys’ fees from proceeds of sale of marital home, which former husband asserted was his homestead. Sell v. Sell, 949 So.2d 1108 (Fla. 3d DCA 2007). The trial court awarded equitable distribution, support, and attorneys’ fees in favor of Former Wife. The court ordered that the marital home – which Former Husband asserted was his homestead – be sold and the proceeds used to pay the equitable distribution and support awards. Former husband argued that the marital home was his homestead, and the court refused to order payment of Former Wife’s attorneys’ fees from the proceeds, “finding this fund exempt under Article X, section 4 of the Florida Constitution” (protecting homestead property). The Third DCA reversed the portion of the order denying imposition of a lien on Former Husband’s share of the proceeds from the sale of the marital residence, citing 3 reasons. First, the judgment of dissolution expressly provided for such payment. Second, the court agreed that the designation of marital property as homestead before the divorce did not bar imposition of a lien on marital property distributed to one of the partners. Third, the court stated that “the exemption enshrined in Article X, section 4 is not absolute in this context. Homestead property may be subjected to equitable liens where fraud, reprehensible or egregious conduct is demonstrated[.]”
Divorce court erred in awarding all attorney’s fees against one party, based solely on need/ability to pay analysis. Von Baillou v. Von Baillou, 959 So.2d 821 (Fla. 4th DCA 2007). Husband was ordered to pay 100% of the attorney's fees, accountant's fees, and costs incurred by both Husband and Wife. Husband appealed. The Fourth DCA reversed, “holding that a spouse with $2.5 million in assets and monthly income of $6,177 does not have a financial need for all of her fees to be paid by the other spouse.” (Emphasis in original.) The trial court erred because it “based its decision on a need/ability to pay analysis, not upon any of the other relevant considerations bearing on attorney’s fees identified in Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997).” (Footnote omitted.) The appeals court stated: “Contrary to the trial court’s apparent belief, nothing precluded the court from holding the wife responsible for a portion of her fees. With $2.5 million in assets, the former wife is able to pay some portion of her litigation fees without suffering an inequitable diminution of her assets. If a person is required to bear at least a portion of his or her attorney’s fees, that person is more likely to be a responsible, conservative consumer of legal services.”
Error to award fees in divorce case based solely on parties’ relative income, without considering other financial resources. Balko v. Balko, 957 So.2d 15 (Fla. 2d DCA 2007). The Second DCA reversed the trial court’s award of attorney’s fees and costs to Wife “because the trial court awarded the wife 100% of her fees and costs based solely on an assessment of the husband’s ability to pay.” Fee awards in dissolution cases are governed by Fla.Stat. sec. 61.16, which requires the court to consider the relative financial resources of the parties. Here, “the trial court erred in making its determination regarding whether to award fees because it based the award solely on the relative income of the parties, without considering any other financial resources available to them.”
Cases concerning application of a contingency risk multiplier included: Error to apply contingency risk multiplier to fee award absent evidence that client had difficulty securing competent counsel. Eckhardt v. 424 Hintze Management, LLC, 969 So.2d 1219 (Fla. 1st DCA 2007). Landlord sued Tenants for breach of a residential lease, seeking almost $18,000 in damages. The jury rendered a $4250 verdict for Landlord. Landlord also received an award of attorney's fees and costs. The trial court found a lodestar amount of $22,925 and applied a contingency risk multiplier of 1.5. Tenants appealed. The First DCA reversed. The trial court erred in not reducing the lodestar amount in accordance with the factors set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Landlord's "success at trial was limited," and the case "was not novel or complex." The lower court also erred in applying a contingency risk multiplier. The appeals court referenced the Florida Supreme Court's decisions in Rowe and Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), but noted that "[i]n later cases, courts have focused on the ability to obtain competent counsel when determining whether a multiplier is necessary and appropriate." The court concluded: "Competent substantial evidence must exist to support an application of a contingency risk multiplier. State Farm Mut. Auto Ins. Co. v. Cedolia, 571 So.2d 1386, 1387 (Fla. 4th DCA 1990). Here, the record does not contain competent substantial evidence to support the application of a contingency multiplier. Because the landlord did not testify at the hearing, there was no evidence to suggest that the landlord had difficulty securing competent counsel. Further, there was no evidence that the relevant market of landlords were unable to secure competent representation without the application of a contingency multiplier.”
In collection case, trial court directed to enter attorney’s fee award without contingency risk multiplier; no evidence that multiplier necessary to attract competent counsel. Sumner Group, Inc. v. M.C. Distributec, Inc., 949 So.2d 1205 (Fla. 4th DCA 2007). Plaintiff sued Defendant for passing a worthless check and for breach of a sales contract. Plaintiff prevailed, and sought fees under both the worthless check statute and the contract. The court denied the motion for fees, without explanation. Plaintiff appealed. The Fourth DCA reversed and remanded for entry of an attorney's fee award, noting that a fee award was mandatory under both the statute and the contract. The appeals court, however, stated that the trial court "was right to refuse a contingency risk multiplier in this collection case." Plaintiff “did not establish that the market for collection cases requires a contingency risk multiplier to obtain competent counsel.”
Fifth DCA exercises discretionary jurisdiction to conclude that trial court erred in applying contingency risk multiplier to attorney’s fee award in PIP suit. Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007). The Fifth DCA used its discretionary jurisdiction to review an attorney's fee award in a PIP suit and concluded that "the fee award, particularly the application of a multiplier, is a manifest injustice." First, the lawyer's client (plaintiff in the PIP suit) did not testify at the fee hearing. Thus the trial court had before it “nothing to suggest that he had any difficulty obtaining competent counsel to pursue his PIP claim, other than [the lawyer]’s statement that the attorney handling [the client]’s third-party liability claim was not interested in pursuing [the client]’s PIP case.” Additionally, the appeals court stated that "[c]ommon sense also plays a role here. We are not so isolated from the world around us to know that few people have any difficulty retaining competent counsel in these circumstances. Our docket, and the dockets of the trial courts in Central Florida, have hundreds, and perhaps thousands, of PIP suits pending at any given time. It seems that few insureds, if any, have difficulty obtaining competent counsel to represent them. To the contrary, every television station and telephone book, and many billboards and buses, call out with ads from lawyers seeking to represent the injured." The court concluded: “In our view, there is nothing about this case that calls for a fee multiplier. ‘Fees of the kind awarded here threaten to make the respect of nonlawyers for judicial control of fees – indeed, for the very legal system itself – a thing of the past. Because of the manifest justice rule in this instance, . . . we conclude that this fee award must be set aside.' [Ziontz v. Ocean Trail Unit Owners Ass'n, Inc., 663 So.2d 1334 (Fla. 4th DCA 1993)] at 1336.”
Error to use contingency risk multiplier in attorney’s fee award in action brought under Florida Civil Rights Act. Haines City HMA, Inc. v. Carter, 948 So.2d 904 (Fla. 2d DCA 2007). Plaintiff sued her employer, Hospital, under the anti-retaliation provision of the Florida Civil Rights Act ("FCRA") Plaintiff was awarded back pay and prevailing party attorney's fees, which the trial court enhanced by a multiplier of 1.5. Hospital appealed, arguing that the court erred in using a multiplier. The fee award was reversed and remanded for entry of a judgment "reflecting only the lodestar amount." The FCRA provides that its attorney's fee provision is to be interpreted in a manner consistent with federal case law involving a Title VII action. The court concluded: “[F]ederal case law precludes the use of a multiplier to enhance an attorney's fee award in a Title VII case. Applying this federal case law as the Florida Legislature requires, sec. 760.11(5), we hold that the trial court erred in finding that Quanstrom, 555 So.2d 828, permitted the upward adjustment of the lodestar fee to compensate for the contingent nature of this employment discrimination case.” NOTE: See also Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723 (Fla. 1st DCA 2007) (contingency fee multipliers not permitted under FCRA).
Cases applying Fla.Stat. sec. 57.105 included: Strictly construing notice requirements of Fla.Stat. sec. 57.105, Third DCA reverses attorney’s fees award and concludes trial court erred in awarding fees on its own motion. Davidson v. Ramirez, 970 So.2d 855 (Fla. 3d DCA 2007). Plaintiff sued Defendant, alleging abuse of process, fraud, civil conspiracy, and malicious prosecution. The complaint and 3 amended complaints were dismissed. Defendant moved for attorney’s fees under Fla.Stat. sec. 57.105(5), which provides for an award of attorney’s fees where a claim or defense was frivolous. Plaintiff argued that Defendant failed to comply with the notice provision contained in subsection (4) of the statute. The trial court noted that this objection was meritorious, but decided that it could award attorney’s fees on its own initiative. Plaintiff appealed. The Third DCA reversed. The purpose of Fla.Stat. sec. 57.105(4) “is to give a pleader a last clear chance to withdraw a frivolous claim.” Defendant had not filed a motion seeking fees until the case was over. Thus, Defendant failed to comply with the notice requirement. Additionally, the lower erred in purporting to award fees on its own motion: “We conclude that this procedure is contrary to the intent of the statute. The legislative intent is to require the twenty-one-day notice whenever a subsection 57.105(5) motion is filed by a party. It would frustrate the legislative intent to avoid the twenty-one-day notice by allowing the court to adopt the party-filed motion as the court’s own.”
Disposition of case on the merits is not necessary to support award of attorney’s fees under Fla.Stat. sec. 57.105. Hustad v. Architectural Studio, Inc., 958 So.2d 569 (Fla. 4th DCA 2007). Defendant was sued by his former employer, Plaintiff. Plaintiff voluntarily dismissed the suit. Defendant moved for attorney's fees under Fla.Stat. sec. 57.105. In view of the voluntary dismissal, the trial judge questioned how Defendant’s lawyer could establish that Plaintiff’s claims were frivolous from the outset. Defendant’s lawyer pointed to the more than 100 pages of documents attached to his motion, but the court summarily denied the motion. Absent a disposition on the merits, the court believed that there was no way for it to know that Plaintiff’s claims were frivolous. This was reversible error, per the Fourth DCA. “Even when the lawsuit is dismissed in its early stages, the movant under section 57.105 is entitled to present evidence and establish a record for the purposes of demonstrating entitlement to attorney’s fees. The failure of a trial court to consider a motion for award of section 57.105 attorney’s fees merely because the lawsuit has been voluntarily dismissed is an abuse of discretion.”
Lawyer and client assessed appellate attorneys’ fees under Fla.Stat. sec. 57.105 for pursing frivolous appeal seeking specific performance of alleged real estate contract. de Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. 1st DCA 2007). Client retained Lawyer to file an action for specific performance of an alleged real estate sales contract between Client and Church. Church argued that the alleged agreement was unenforceable because the writings constituting it lacked essential terms. The trial court granted Church's motion to dismiss. Client appealed. The appellate court affirmed, agreeing that the complaint failed to state a cause of action for specific performance. Because the court viewed the appeal as “frivolous,” it granted Church’s motion for appellate attorney’s fees pursuant to Fla.Stat. sec. 57.105. The law was clear and well-settled, and Lawyer made “no effort to distinguish the applicable law or, in good faith, to argue for an extension, modification or reversal of existing law.” Lawyer, as an officer of the court, had a duty to refrain from pursuing frivolous claims that interfere with the functioning of the judicial system. Consequently, the court assessed appellate attorney’s fees “to be paid in equal parts” by Client and Lawyer. The court noted that “Florida lawyers have both ethical [see Rule of Professional Conduct 4-3.1] and statutory [see Fla.Stat. sec. 57.105] duties not to file actions, including appeals, that are not supported by the application of the governing law,” but did not reach the question of whether the standard for determining that an action is frivolous under rule 4-3.1 is substantially the same as the standard for awarding fees under section 57.105(1).
No basis to award attorney’s fees under Fla.Stat. sec. 57.105 in domestic violence injunction case. Dudley v. Schmidt, 963 So.2d 297 (Fla. 5th DCA 2007). A party to a proceeding for injunction against alleged repeat domestic violence moved for attorney’s fees under Fla.Stat. sec. 57.105 against the other party, who allegedly made false statements in the proceeding. The trial court denied the motion. The movant appealed. The decision was affirmed. “There is no basis for the imposition of attorney's fees in a proceeding for injunction against repeat violence under section 741.30, Florida Statutes (2005). Attorney’s fees cannot be awarded in a domestic violence injunction case.”
Fla.Stat. sec. 57.105 does not apply in collateral criminal proceedings. Ortiz v. McDonough, 957 So.2d 1256 (Fla. 1st DCA 2007). The trial court dismissed Prisoner’s petition for mandamus. The order found Prisoner to be a “vexatious litigant” and assessed attorney's fees against him under Fla.Stat. sec. 57.105. Prisoner appealed. The First DCA affirmed the order finding Prisoner’s petition "to be frivolous pursuant to section 57.085(9), Florida Statutes (2005), and assessing attorney’s fees pursuant to section 57.105, Florida Statutes (2005), as these sections do not apply to collateral criminal proceedings.”
Cases regarding application of Fla.R.Civ.P. 1.525 included: Non-compliance with Fla.R.Civ.P. 1.525 regarding trial court attorney's fee awards does not preclude award of appellate attorney's fees if motion is timely filed. Parrot Cove Marina, LLC v. Duncan Seawall Dock & Boatlift, Inc., ___ So.2d ___ (Fla. 2d DCA, Nos. 2D06-3720, 2D06-4582, 2/20/2008), 2008 WL 441948. Plaintiff obtained a judgment of foreclosure. The final judgment, entered in June 2006, reserved jurisdiction to award attorney's fees. On July 20, 2006, Plaintiff served a notice of hearing, but no attorney's fee motion, on the issue of attorney's fees. The trial court awarded fees to Plaintiff. Defendant appealed. The Second DCA reversed the fee award, concluding that Plaintiff did not comply with the requirements of Fla.R.Civ.P. 1.525, which provides: "Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal." Noticing the matter for a hearing did not comport with the rule's requirement that a motion be timely served. The appeals court, however, also noted that the motion for appellate attorney's fees could be granted despite the fact that Plaintiff had not met the requirement for an attorney's fee award at the trial level. "Florida Rule of Civil Procedure 1.525 and Florida Rule of Appellate Procedure 9.400 provide separate and distinct rights to attorney's fees. Therefore, as to [Plaintiff], its prior noncompliance with rule 1.525 does not preclude its timely filed motion for appellate attorney's fees under rule 9.400(b)."
Arbitration award not “judgment” for purposes of Fla.R.Civ.P. 1.525's 30-day time period for filing motion for attorney’s fees. Landing Group of Tampa, Inc. v. Kifner, 951 So.2d 1014 (Fla. 5th DCA 2007). A construction dispute went to court-ordered non-binding arbitration. The arbitration award was served on the parties on October 3, 2005. Neither party timely moved for trial de novo. On December 16, 2005, the prevailing party filed a motion seeking attorney's fees. On December 20, 2005 the court issued an order confirming the arbitration award and retaining jurisdiction to consider the motion to award fees. In February 2006 the court issued a final judgment reserving jurisdiction to consider an award of attorney's fees. The court subsequently entered an order awarding fees to the prevailing party. The non-prevailing party appealed, arguing that the award of attorney's fees was improper because the prevailing party failed to move for fees within 30 days of the binding decision. The non-prevailing party contended that “expiration of twenty days after entry of the arbitration award, filed October 3, 2005, started the clock on the thirty-day window for filing a fees motion” under Fla.R.Civ.P. 1.525.” The Fifth DCA affirmed. "We agree that under Rule 1.525, the trigger for the thirty-day deadline to file a motion for fees and costs is 'the judgment.' The arbitration award is not a judgment, as the trial court still must 'enter such orders and judgments as are required to carry out the terms of the decision'."
Cases involving fees in connection with offers of judgment included: Florida Supreme Court draws another “bright line” regarding offer of judgment statute, strictly requiring that offer cite applicable statute. Campbell v. Goldman, 959 So.2d 223 (Fla. 2007). Plaintiff served a settlement offer on Defendant. The offer referenced the offer of judgment rule, Fla.R.Civ.P. 1.442, but did not cite the applicable statute, Fla.Stat. sec. 768.79 (2003). After a favorable jury verdict Plaintiff moved for attorney's fees and costs. The trial court denied the motion. The rule and the statute each require that an offer of judgment identify the applicable law under which it is being made, and Plaintiff's offer had not complied. Despite acknowledging that the requirement that the offer identify the applicable law under which it is made, the Fourth DCA reversed. The appeals court viewed the lack of compliance as an “insignificant technical violation.” The court certified conflict with decisions of other DCAs, which required that the offer of judgment cite to the applicable statute. The Florida Supreme Court quashed the Fourth DCA's opinion. Referencing its earlier decisions strictly construing other aspects of Fla.R.Civ.P. 1.442, the Court found the holdings in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla. 2003) and Lamb v. Matetzschk, 906 So.2d 1037 (Fla. 2005) regarding strict construction of the language in the offer of judgment statute and rule at issue in those cases to be “equally as applicable to the language from rule 1.442 and section 768.79 concerning the requirements of citing authority. Contrary to [Plaintiff]'s assertions, strict construction is applicable to both the substantive and procedural portions of the rule and statute. When read together the rule and statute provide parties with an unambiguous method for obtaining attorney fees. . . . The plain language of the statute provides that an offer must state it is being made pursuant to this section. This is a mandatory requirement for this penal, fee-shifting provision. Because the overall subject is in derogation of the common law, all portions must be strictly construed.”
Award of attorney's fees under offer of judgment statute reversed because proposed release was ambiguous non-monetary term of offer. Sparklin v. Southern Industrial Associates, Inc., 960 So.2d 895 (Fla. 5th DCA 2007). Plaintiff sued several defendants as a result of injuries suffered when the a dump truck bed fell on him. One defendant, the company that assembled the vehicle, sent a settlement proposal to Plaintiff that included as one of its terms the execution of a general release. Plaintiff did not accept the offer. After the assembly company prevailed at trial, it moved for and was granted an award of attorney's fees under the offer of judgment statute, Fla.Stat. sec. 768.79 (2004). Plaintiff appealed, "arguing that the offer was invalid because the proposal for settlement and release were ambiguous and overbroad." The Fifth DCA agreed and reversed. Fla.R.Civ.P. 1.442, which implements the offer of judgment statute, requires an offering party to "state with particularity all nonmonetary terms of the proposal." The appellate court noted that a release fits within the definition of a "nonmonetary term." The court analyzed the terms of the proposed general release and concluded that it was ambiguous. Due to the lack of particularity the offer of judgment was unenforceable.
INEFFECTIVE ASSISTANCE AND RIGHT TO COUNSEL Florida Supreme Court discusses conflicts of interest and imputation of conflicts in context of ineffective assistance of counsel claim. Connor v. State, ___ So.2d ___ (Fla., No. SC04-1283, 11/15/2007) (revised opinion). See discussion in “Conflicts of Interest” section.
Florida Supreme Court clarifies that trial counsel is constitutionally ineffective for failing to preserve challenge to potential juror only where juror is actually biased. Carratelli v. State, 961 So.2d 312 (Fla. 2007). The Florida Supreme Court resolved a conflict between district courts of appeal concerning the standard to be applied in deciding whether a trial counsel’s failure to preserve a challenge to a potential juror constitutes ineffective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant seeking postconviction relief based on a allegation of ineffective assistance of counsel must establish that the alleged deficient performance of counsel prejudiced the defendant. The Court pointed out that the standard for obtaining postconviction relief "is much more strict" than that for obtaining a reversal on a direct appeal. The Court then stated: "Under Strickland, to demonstrate prejudice a defendant must show that there is a reasonable probability – one sufficient to undermine confidence in the outcome – that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 694. In the context of the denial of challenges for cause, such prejudice can be shown only where one who was actually biased against the defendant sat as a juror. We therefore hold that where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased."
Florida Supreme Court resolves conflict between Districts regarding when trial court must permit amendment of postconviction motion that was dismissed for pleading deficiency. Spera v. State, 971 So.2d 754 (Fla. 2007). The Florida Supreme Court granted review to resolve a conflict between the Fourth District and the Second District regarding amendment of postconviction motions in criminal cases. The Court concluded: “[W]e hold that in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected.” The Court summarized the appropriate procedure to be followed: “[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion. As we did in Bryant [v. State, 901 So.2d 810 (Fla. 2005)], we hold that the proper procedure is to strike the motion with leave to amend within a reasonable period. We do not envision that window of opportunity would exceed thirty days and may be less." The Court stressed that its decision was limited to facially insufficient motions, not those denied by trial courts because the record conclusively refutes the allegations. Additionally, the Court's decision "permits defendants to amend defective pleadings only if they can be amended in good faith.”
In matter of first impression, Second DCA rules that in postconviction plea agreement defendant may validly waive right to seek postconviction relief. Stahl v. State, ___ So.2d ___ (Fla. 2d DCA, No. 2D06-5803, 1/4/2008), 2008 WL 53541. Defendant was convicted of a felony. He also had other charges pending against him. Defendant entered into a negotiated plea agreement under which he agreed to sentences and waived his right to all postconviction challenges. Nevertheless, Defendant later did file various motions for postconviction relief. The trial court denied them based on the waiver in the plea agreement. Defendant appealed. The Second DCA noted that this issue was a matter of first impression before it. The court affirmed, concluding that the waiver was valid.
Trial counsel's failure to secure severance of 2 charges results in reversal of defendant's conviction. McNabb v. State, 967 So.2d 1086 (Fla. 1st DCA 2007). Defendant was charged in one information with 2 drug offenses. The charges were tried together. The jury found Defendant guilty of a lesser included offense on the first charge and guilty on the second charge. Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850. The court held an evidentiary hearing and concluded that trial counsel's "failure to move for and thereby secure a severance of the charges satisfied the deficient performance prong of Strickland v. Washington, 466 U.S. 668 (1984)." The court, however, concluded that the prejudice prong of Strickland was not satisfied because “evidence of either offense would have been admissible in the trial of the other as similar fact evidence” under Fla.Stat. sec. 90.404(2)(a) Defendant appealed. The First DCA reversed both convictions. There is a risk of prejudice when offenses are improperly consolidated for trial, and that risk is heightened when the offenses are of the same type. “[W]e conclude that there is a reasonable probability that the improper consolidation of offenses affected the outcome of the appellant’s trial.”
Counsel not ineffective for filing untimely motion to disqualify trial judge, who should have granted timely motion but was not shown to be actually biased. Conflict certified. Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007). Defendant's trial Lawyer moved to withdraw based on alleged threats Defendant made against Lawyer and his family. Judge denied the motion, noting that Defendant was charged with a crime punishable by life imprisonment and stating any such threat was one "'that could never be carried out. If [Defendant]'s convicted, which was the condition of his threat, if he's convicted, he will be in prison for the rest of his life and he couldn't do physical harm to . . . anyone else'." Almost a month later Lawyer filed a motion to disqualify Judge based on these statements, alleging that Defendant was concerned that Judge had prejudged sentencing. Judge denied the motion as untimely. This denial was affirmed, although the appeals court noted that Judge should have recused himself had the motion been timely. Defendant was sentenced to a long prison term. Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850, alleging that Lawyer was ineffective for filing an untimely but legally sufficient motion. The circuit court denied this motion, and Defendant appealed. The First DCA affirmed. To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that this deficient performance caused actual prejudice. Defendant failed to establish prejudice. There was no dispute that Defendant qualified for the sentence he received. "[T]he mere fact that the trial court imposed such a sentence is not evidence of prejudice resulting from his attorney’s failure to timely file the motion to disqualify." The court also rejected Defendant's alternative argument that he was not required to demonstrate prejudice. Defendant asserted that Lawyer’s failure to timely file an otherwise legally meritorious motion to disqualify “created a structural defect” in the proceedings. “In light of the fact that [Defendant] has failed to show actual bias, he has failed to demonstrate the existence of a structural defect, and is, consequently, not exempt from the requirement that he show prejudice.” The court certified conflict with decisions from the Second DCA and Fourth DCA.
On direct appeal the appellate court reverses conviction for ineffective assistance that was apparent on face of record. Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007). Convicted Defendant alleged on direct appeal that her trial lawyer had rendered ineffective assistance of counsel by failing to request an instruction on the advice of counsel defense. Defendant acknowledged that ineffective assistance of counsel claims generally are not cognizable on direct appeal, but contended “that the ineffective assistance is apparent on the face of the record.” The Fourth DCA agreed. "[I]t is patently unreasonable to fail to request an instruction that provides a legal defense to undisputed facts." The court concluded that both prongs of Strickland v. Washington, 466 U.S. 668 (1984) were established, and reversed the conviction. NOTE: See also Berdecia v. State, 971 So.2d 846 (Fla. 3d DCA 2007) (appellate court resolved ineffective assistance in direct appeal rather than remanding for filing of motion under Fla.R.Crim.P. 3.850).
In 2 cases Second DCA addresses what must be sworn in connection with motion for postconviction relief under Fla.R.Crim.P. 3.850. The Second DCA, in 2 cases decided the same day, provided guidance concerning the requirement that postconviction motions filed pursuant to Fla.R.Crim. P. 3.850 "be under oath." Stevens v. State, 947 So.2d 1227 (Fla. 2d DCA 2007). Defendant’s motion was sworn, as required by the rule. Defendant's accompanying memorandum of law, however, was not sworn. The postconviction court "concluded that it could not consider the memorandum because it lacked an oath." The Second DCA reversed. “[Defendant's] properly sworn motion, not his memorandum, contains all the factual allegations he relies on to support his claims. It was not necessary for the memorandum to be under oath because it did not contain any additional factual allegations but rather set forth his legal arguments based on the facts contained in the sworn motion.” Welch v. State, 946 So.2d 649 (Fla. 2d DCA 2007). Defendant's memorandum of law that accompanied his motion was sworn, but the motion itself was not sworn. The postconviction court summarily denied the motion. The Second DCA reversed. "Because [Defendant]'s rule 3.850 motion was not properly sworn, the postconviction court should have dismissed it without prejudice to Welch timely filing a properly sworn motion." (The appellate court noted that Defendant's "memorandum of memorandum of law was sworn; however, it contained only legal argument. Accordingly, the postconviction court could not have read it in conjunction with the motion to supply the requisite sworn factual allegations required by rule 3.850(c).")
Trial court has authority to place reasonable limits on petitions for extraordinary writs, such as Fla.R.Crim.P. 3.850 motions. Schwenn v. State, 958 So.2d 531 (Fla. 4th DCA 2007).
Criminal defense counsel’s delay in turning murder weapon over to State created conflict resulting in reversal. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). See discussion in “Conflicts of Interest” section.
Cases involving right-to-counsel and self-representation issues included: Citing Rule of Professional Conduct 4-1.14 (client under disability), Fourth DCA affirms trial court’s refusal to appoint attorney ad litem for allegedly incompetent father already represented by counsel in dependency hearing. S.K. v. Dept. of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007). The Florida Department of Children and Families petitioned to declare Child dependent. Mother consented to the dependency but Father, who was serving a life sentence for murder, did not. The court ordered a competency examination for Father. After the examination, Father's counsel moved for a continuance of the final hearing because he believed his client was incompetent. He also requested appointment of an attorney ad litem for Father. The court continued the hearing for 30 days, but declined to appoint an attorney ad litem. At the final hearing, the court again refused counsel's request to appoint an attorney ad litem for Father. The court found Child dependent. Father appealed, arguing that he had been denied due process "by proceeding while he was incompetent to participate in his defense and by failing to appoint an attorney ad litem to represent him." The Fourth DCA affirmed. The court stated that it did not understand Father's request for appointment of an attorney ad litem. Father "already had counsel, and counsel was not prevented from advocating on his behalf." After quoting Rule of Professional Conduct 4-1.14, the court stated that "unless the client is completely unable to express and act in his own interest, the attorney can continue to represent him. When the client cannot adequately act in his or her own interest, the lawyer seeks the appointment of a guardian, not an attorney ad litem." The court commended the job performed by Father's counsel, then stated: "As [Rule 4-1.14] suggests, appointment of a guardian for an incompetent person may be appropriate in some circumstances, even within a dependency proceeding. We need not address that issue, because no one requested the appointment of a guardian. Nor was the appointment of a guardian ad litem requested."
Error to deny criminal defendant's request to replace counsel who was repeatedly unprepared to try case. Orta v. State, 970 So.2d 478 (Fla. 5th DCA 2007). Defendant was accused of violating community control by committing a criminal offense. Counsel was appointed to represent him. After 3 continuances, a hearing occurred. At that hearing Defendant's counsel asked for another continuance, asserting that she was not prepared to proceed. Defendant then asked the trial court to appoint new counsel for him. The court denied Defendant's request because Defendant "had not sufficiently demonstrated, pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), that his lawyer was not fulfilling her job or was incompetent." The trial court informed Defendant that, if his counsel was discharged, new counsel would not be appointed and Defendant would have to represent himself. Defendant chose not to discharge his counsel. Defendant was convicted. On appeal Defendant contended that the trial court erred by not discharging his counsel and appointing new counsel. The Fifth DCA agreed and reversed. "[Defendant]’s counsel stated repeatedly that she was unprepared to proceed to trial. While counsel’s admissions of incompetence are not binding on the trial court, the record is clear that trial counsel had failed to take any of the steps reasonably necessary to prepare for this hearing. On these facts, [Defendant] had a legitimate complaint about his attorney and reasonable cause existed that his attorney was not competent to try the case. Accordingly, the trial court abused its discretion by failing to appoint new counsel."
Motion to withdraw plea filed by represented defendant treated as “nullity” unless motion includes unequivocal request to discharge counsel. Kerney v. State, 945 So.2d 657 (Fla. 2d DCA 2007). Convicted Defendant filed a petition alleging ineffective assistance of appellate counsel. Defendant had pleaded no contest. After sentencing, Defendant filed a pro se motion to withdraw his plea. The motion was denied. Appellate counsel for Defendant filed an Anders brief. In his subsequent petition pursuant to Fla.R.App.P. 9.141(c), Defendant alleged appellate counsel “was ineffective in failing to argue that the trial court erred in denying the motion to withdraw the plea.” The Second DCA denied the petition. "Where a defendant is represented by counsel, a motion to withdraw a plea is a nullity and should be stricken unless the motion includes an unequivocal request to discharge counsel." Defendant's pro se motion to withdraw his plea did not contain an unequivocal request to discharge trial counsel.
In self-representation inquiry, proper legal standard is defendant’s competence to waive right to counsel, not defendant’s competence to represent self. Fleck v. State, 956 So.2d 548 (Fla. 2d DCA 2007). Defendant was represented by a public defender. After jury selection Defendant requested a continuance. The court denied the request. Defendant then stated that he wished to represent himself. The trial court questioned him and concluded, "I'm finding that you're not competent to represent yourself. Sit down, I'm leaving the Public Defender in the case and we're starting the trial." Defendant was convicted. On appeal he argued that "the trial court applied the wrong legal standard, focusing on [Defendant]'s competence to represent himself, rather than his competence to waive the right to counsel." Agreeing, the Second DCA reversed his conviction. On remand, the trial court "shall conduct a thorough Faretta inquiry and employ the proper legal standard of whether [Defendant] is knowingly and intelligently waiving the right to counsel."
Criminal defendant's experience with self-representation cannot substitute for Faretta hearing. O’Neal v. State, 963 So.2d 959 (Fla. 4th DCA 2007). Without conducting a Faretta hearing, a trial court allowed a criminal Defendant to discharge his appointed counsel. Defendant was left to represent himself and was convicted. Defendant appealed. The Fourth DCA reversed. The state acknowledged that there was no Faretta hearing, "but argues that [Defendant]’s familiarity with the criminal justice system and his self-representation at a sentencing in an earlier case demonstrated that he was familiar with self-representation." The appeals court noted that Defendant was not seeking to represent himself, but merely to have new counsel appointed.
LAW FIRMS Florida Supreme Court discusses whether lawyers who share space are a “firm” for conflicts imputation purposes. Connor v. State, ___ So.2d ___ (Fla., No. SC04-1283, 11/15/2007) (revised opinion). See discussion in “Conflicts of Interest” section.
Florida Commission on Ethics advises that law firm can be “lobbying firm” under state ethics law if even one firm lawyer is registered to lobby. Florida Commission on Ethics Opinion 07-08. The Florida Commission on Ethics was asked whether a law firm would be considered a "lobbying firm" under state ethics laws and, if so, whether the expenditure prohibition in Fla.Stat. sec. 112.3215(6)(a) applied "to the entire firm and every employee in the firm, even those who are not registered to lobby Executive Branch agencies." Regarding the first question, the Commission construed Fla.Stat. sec. 112.3215(1)(g), which defines "lobbying firm." The statute's language led the Commission "to conclude that if even one of the partners, owners, officers, or employees of the law firm is registered to lobby Executive Branch agencies and is paid or owed compensation for lobbying, then the entire firm is a 'lobbying firm'." Regarding the second question, the Commission noted that the inquirer "asked whether the expenditure prohibition would allow the law firm to pay for meals consumed by Executive Branch agency officials or employees without it being considered a prohibited expenditure when it is not made for the purpose of lobbying." The Commission responded with a discussion of its rules regarding "engendering goodwill" and the use of "indirect expenditures" for that purpose. The Commission also discussed several of its previous opinions "to demonstrate how strictly we [the Commission] have construed the expenditure prohibition in Section 112.3215(6)(a)." After noting that the inquirer had not provided "facts describing actual situations" the Commission concluded its opinion by stating that "because of our strict construction of Section 112.3215, Florida Statutes, we particularly would caution against a non-lobbyist buying a meal or making any other expenditure for the personal benefit of an Executive Branch agency official or employee where the funds actually paying for it come, directly or indirectly, from a lobbyist or the principal of a lobbyist."
LEGAL MALPRACTICE Florida Supreme Court reaffirms general rule that legal malpractice claims are not assignable. Law Office of David J. Stern, P.A. v. Security National Servicing Corp., 969 So.2d 962 (Fla. 2007). In Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla. 2005), the Florida Supreme Court carved out an exception to the general rule against assignment of legal malpractice claims. In that case, the defendant lawyers had prepared private placement memoranda that were relied upon by third parties. The Fourth DCA later expanded on the Kaplan exception in a case not involving intended third-party reliance. In Security National Servicing Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934 (Fla. 4th DCA 2005), a commercial note and mortgage were transferred several times, ultimately becoming the property of Assignee. Along the way Law Firm allegedly committed malpractice. Law Firm had represented other holders of the note and mortgage before Assignee obtained them. Law Firm had also represented Assignee, but did not represent Assignee at the time the malpractice cause of action accrued. Assignee later sued Law Firm for legal malpractice. The trial court granted summary judgment for Law Firm, apparently finding that the malpractice claim was non-assignable. The Fourth DCA reversed, electing to read the Kaplan exception expansively: “The significance of Kaplan is not a narrow point pertaining to the attorney-client privilege, but rather the more broad view that the door is now open to assignment of legal malpractice actions in exceptional cases which do not fully implicate the core policy concerns underlying the general rule.” Law Firm sought review of the Fourth DCA's decision in the Florida Supreme Court, asserting that the decision conflicted with Supreme Court decisions. The Court agreed and quashed the Fourth DCA's decision. Regarding the issue of standing by assignment, the Court stated: “[Assignee] did not receive a valid assignment of the right to sue [Law Firm] for legal malpractice. First, in Kaplan, we did not adopt the minority, case-by-case approach regarding the assignment of legal malpractice claims. We continued to adhere to the majority view that legal malpractice claims are generally not assignable. [The Court emphasized that the "narrow point pertaining to the attorney-client privilege" was the key to Kaplan, and that Kaplan was "not intended to proclaim that the door is now open to assignment."] Second, the Fourth District’s reliance on Kaplan is further misplaced because the facts in [the instant case] are significantly different from those in Kaplan. [Among other things, the assignment in Kaplan was express rather than implied.] Third, the relevant policy considerations in cases such as this weigh against recognizing the assignment of a legal malpractice claim in a general assignment of a note and mortgage." The Court noted that "the two major policy concerns justifying a general prohibition against the assignment of legal malpractice claims are (1) protecting attorney-client confidences and (2) preventing a market for legal malpractice claims."
Lawyer who breaches client confidentiality after attorney-client relationship has ended may be liable to client for malpractice, but client must allege what confidence was breached. Elkind v. Bennett, 958 So.2d 1008 (Fla. 4th DCA 2007). See discussion in “Confidentiality and Privileges” section.
Trial court incorrectly applied statute of limitations in dismissing legal malpractice suit. Reeves v. Barrett, 964 So.2d 869 (Fla. 1st DCA 2007). A trial court dismissed Plaintiffs' legal malpractice action on the ground that the action was barred by the statute of limitations (Fla.Stat. sec. 95.11(4)(a)). The court concluded that the limitations period commenced when summary judgment was entered in the underlying case. On appeal, the First DCA reversed. "[T]he limitations time did not commence until the summary judgment became final by expiration of the time for appeal. . . . Because the malpractice action was filed within two years from that date, it was timely and should not have been dismissed."
PROFESSIONALISM Lawyer commended for candor in seeking amount of fees orally agreed to rather than amount provided in written co-counsel contract. Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007). See discussion in “Fees” section.
Fifth DCA chastises lawyer who filed motion for rehearing on basis that she did not understand reason for court's per curiam affirmance. Lowry v. State, 963 So.2d 321 (Fla. 5th DCA 2007). Criminal Defendant was convicted, and the Fifth DCA affirmed in a per curiam opinion. Defendant's lawyer moved for rehearing on the ground that she did not understand the court's reason for the per curiam affirmance. The appeals court responded with an "extended opinion" affirming the conviction in order to "assist's counsel's understanding and reiterate the standard for filing a motion for rehearing." The court concluded its opinion with a paragraph chastising Defendant's lawyer: "[Defendant]'s motion for rehearing simply repeats his frivolous arguments on appeal, levels unjustified abuse toward the prosecution, and reargues the merits of the court's opinion in violation of Florida Rule of Appellate Procedure 9.330(a). See Amador v. Walker, 862 So. 2d 729, 733 (Fla. 5th DCA 2003). When we issued a per curiam affirmance, citing various opinions, it should have been obvious that we disagreed with [Defendant]'s belief that 'fundamental error' is merely anything he deems to be fundamentally erroneous. See id. Yet [Defendant]'s counsel filed a motion for rehearing that presented nothing new, save for counsel's displeasure with our ruling and counsel's concession she found it 'difficult, if not impossible, . . . to discern [our] reasoning.' We trust that this opinion reduces or eliminates counsel's confusion. However, unfamiliarity with fundamental error doctrine and Florida Rule of Appellate Procedure 9.330(a) is not a sufficient basis for a motion for rehearing."
“Highly improper, unprofessional argument” results in reversal of criminal conviction. Chavers v. State, 964 So.2d 790 (Fla. 4th DCA 2007). During closing argument the prosecutor suggested that defendant and a defense witness fabricated their version of events. The trial court overruled defense counsel's objection. The defendant was convicted. The Fourth DCA reversed, concluding that the error was not harmless. “Where the state relies on highly improper, unprofessional argument to sway the jury of the lack of credibility of the defense’s case, we cannot say beyond a reasonable doubt that it did not contribute to the conviction, even on those counts on which the defense witness gave only modest testimony.”
Second DCA reminds lawyers to present facts and law “in an accurate and forthright manner.” Brown v. State, 958 So.2d 1029 (Fla. 2d DCA 2007). Defendant appealed convictions for armed burglary and grand theft. The appellate court affirmed, and also expressed concern about the "disingenuous" manner in which Defendant presented his arguments. "Although we are reluctant to conclude that [Defendant] deliberately misrepresented the record, we can say that he has ignored, discounted, or distorted the evidence and testimony presented to the jury and trial court. Our careful review of the record reflects no trial court error. We affirm [Defendant]'s convictions and sentences. Moreover, we take this opportunity to remind parties and counsel who appear before us to present the facts and law in an accurate and forthright manner."
Fifth DCA cautions against “patently overbroad” discovery requests and urges lawyers to work together to “reasonably narrow” disputed discovery issues. Life Care Centers of America v. Reese, 948 So.2d 830 (Fla. 5th DCA 2007). The Fifth DCA quashed a discovery order in which the trial court compelled Defendants in a nursing home case to "produce documents and to prepare and produce a privilege log with respect to all documents requested in 195 overly-broad production requests, without first ruling on [Defendants]' general objections as to the scope of the discovery sought." When served with the discovery requests, Defendants had asserted objections based on the overbreadth of certain requests that were not limited by time or scope and also raised objections that included attorney-client privilege and work product. The court, however, did not consider Defendant's "facially appropriate overbreadth objections." Instead, the court ordered Defendants to produce privilege logs within 20 days and indicated that it would defer ruling on the overbreadth objections until after the privilege logs were produced. Defendants sought a writ of certiorari. The appellate court concluded that the discovery ordered was overbroad, noting that litigants are not entitled to carte blanche discovery of irrelevant material. The court further stated that "to the extent that the trial court intended to defer ruling on the overbreadth objections until after production of the privilege logs, this was also erroneous." Finally, the court commented on the ethical obligations of lawyers involved in discovery disputes. "[W]e are not unsympathetic to the challenge that trial courts face when confronted with what appear to be unlimited discovery disputes, each requiring an inordinate amount of judicial time and effort to resolve. For this reason, we remind [Plaintiff's] counsel of his ethical obligation to refrain from making frivolous discovery requests. See Rule 4-3.4(d), Rules of Professional Conduct. Some of the requests propounded in this case are so patently overbroad that they are clearly frivolous. We similarly remind [Defendants]' counsel of her professional obligation, set forth in the same rule of professional conduct, to comply with all legally proper discovery requests. Id. The parties should fulfill their respective ethical obligations by meeting and working together to reasonably narrow the disputed issues before bringing future discovery matters to the trial court for resolution."
Judge did not err by allowing jurors to continue deliberations after midnight over defense counsel’s objection; lawyers criticized by court for unrealistic assessment of trial time required. Green v. State, 951 So.2d 962 (Fla. 1st DCA 2007). Counsel represented to the judge that Defendant’s criminal trial would take one day. Jury selection began at 8:00 am. By 4:00 pm the state was not quite finished with its case. The judge then asked the lawyers if they had previously informed the jurors that the jurors might need to serve more than one day. Both lawyers replied that they had not. Defense counsel "expressed her concern that the jury would not have enough time to review all of the evidence if they were required to work late into the evening, which she argued would be a disadvantage to the defendant." The judge asked the jury if any members would have conflicts if the trial was carried over to the next day. The jurors “informed the judge that they wished to stay and complete the trial that evening.” Defendant's counsel then asked the judge to continue the trial until the following day, despite the jurors' wishes. The judge denied this request. Closing arguments ended at 9:20 pm, at which time the judge asked whether the jurors would prefer to come back the next evening for deliberations. The jury indicated then, and again later, that they wished to proceed to conclusion. The jury returned its verdict shortly after midnight. Defendant was convicted. On appeal Defendant contended that the court erred in denying his request to adjourn until the next day. The First DCA affirmed. “[T]he trial judge carefully weighed all of the options and made a decision to proceed with the trial late into the evening. Under the circumstances, we have no reason to disagree with the trial judge, much less conclude that he abused his discretion.” The appellate court went on to criticize the lawyers: "Surely the lawyers must have known that this case was not the only one the trial judge would be required to try that week. They should have been more realistic about their estimate of the time required. When lawyers grossly underestimate the time that will be needed to compete a jury trial, as they did here, that leaves the trial judge with few good options."
Trial court abused discretion by denying motion for new trial based on non-disclosure by juror (who happened to be a lawyer) of her personal litigation history. Pereda v. Parajon, 957 So.2d 1194 (Fla. 3d DCA 2007). One Defendant appealed a judgment in favor of Co-defendants based on the trial court's failure to grant Defendant's motion for new trial based on alleged nondisclosure by Juror of Juror's personal litigation history. During voir dire Defendant's counsel asked the prospective jurors whether any of them had been "under the care of a physician for personal injuries" whether or not they had a lawsuit and whether any of the panel members had been in an accident. Juror did not respond. Juror, who happened to be a lawyer, was seated on the jury and selected as the foreperson. After an adverse verdict, Defendant's counsel learned that Juror had been a claimant in a personal injury case. In a court-approved interview Juror admitted that she was injured in an auto accident 3 years before and had hired a lawyer to represent her in the resulting lawsuit, which eventually was settled. The trial court, however, was satisfied with Juror’s explanation and denied Defendant’s motion for new trial based on juror nondisclosure. The appeals court concluded that the trial court abused its discretion in denying the motion for new trial based on Juror's nondisclosure. “To determine whether a juror’s nondisclosure warrants a new trial, the complaining party must show that: (1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Because all three prongs were established, the trial court abused its discretion in denying the motion for new trial.
First DCA imposes attorney’s fees under Fla.Stat. sec. 61.16(1) against appellant for filing frivolous appeal in domestic relations matter. Lahodik v. Lahodik, 969 So.2d 533 (Fla. 1st DCA 2007). Former Husband appealed a order modifying the parties’ settlement agreement concerning temporary child support and custody. The First DCA affirmed the orders. Former Husband had challenged the orders using a "law of the case" argument that the appeals court found to be not only meritless, but frivolous. The court stated: "[W]e conclude [Former Husband]'s we conclude Appellant’s appeal is frivolous. We write only to impose attorneys’ fees against [Former Husband] pursuant to section 61.16(1), Florida Statutes, and to reiterate that, although parties may have a legal right to file an appeal, a party who files an appeal lacking merit when applying the proper appellate standard of review risks the imposition of attorneys’ fees." Additionally, the court criticized the conduct of Former Husband's lawyer: “We have previously stated that ‘[a]ttorneys who do not present their appellate arguments in the context of this standard of review fail in their obligations to their clients and to this court, and risk the imposition of sanctions.’ See Frederick v. United Airlines, 688 So.2d 412, 414 (Fla. 1st DCA 1997). That is precisely what happened here.”
Criminal defense counsel’s delay in turning murder weapon over to State created conflict resulting in reversal. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). See discussion in “Conflicts of Interest” section.
Lawyer has no legal duty to stop someone from illegally taping conversation, but could face liability for disclosing or using tape. Horning-Keating v. Employers Insurance of Wausau, 969 So.2d 412 (Fla. 5th DCA 2007). Lawyer K represented Claimant in a workers' compensation case. Claimant was awarded reimbursement from the employer's Insurer for attendant care. Lawyer S, who represented Insurer, suspected insurance fraud and hired a private investigator to find Rothstein, the person who allegedly rendered attendant care to Claimant. Rothstein thereafter met with Claimant and Claimant's wife and secretly tape recorded the meeting. Rothstein planned to meet with Lawyer K, but first went to see Lawyer S. Rothstein informed Lawyer S that she would secretly tape record her meeting with Lawyer K. Rothstein then met with Lawyer K and secretly taped the conversation. After the meeting Rothstein played the tape recording for Lawyer S. Lawyer S later contacted the state Division of Insurance Fraud and local news media. Subsequently Lawyer K sued Lawyer S, his law firm, and Insurer alleging invasion of privacy and violation of Florida's Security of Communications Act. The court granted the defendants' motions for summary judgment. Lawyer K appealed, arguing that the trial court erred in granting summary judgment on her claim that Lawyer S violated the Security of Communications Act by procuring Rothstein's illegal taping. The appellate court disagreed, stating: "The undisputed evidence shows that Rothstein made the decision unilaterally to record her meeting with [Lawyer K]. As a matter of law, the fact that [Lawyer S] did not stop Rothstein from taping the conversation does not constitute procurement of the taping." The court, however, agreed with Lawyer K that a question of material fact existed as to whether Lawyer S "disclosed or used" the illegal tape in violation of the Act. Consequently, the trial court's judgment was reversed on this issue and remanded.
Criminal defense counsel’s use of flat fee arrangement raises conflict questions. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). See discussion in “Conflicts of Interest” section.
PUBLIC OFFICIAL ETHICS AND PUBLIC RECORDS Conflict of interest under Florida ethics laws exists when member of city commissioner’s law firm represents clients before commission, but not when firm represents clients before other city boards. Florida Commission on Ethics Opinion 07-13. City Commissioner was an employee of Law Firm. Commissioner asked the Florida Commission on Ethics 2 questions concerning whether possible conflicts of interest under Fla.Stat. sec. 112.313(7)(a). Question 1. Commissioner asked whether a prohibited conflict exists where members of Law Firm represent clients, for compensation, before the City Commission. The Florida Commission on Ethics answered that question in the affirmative. Commissioner had a contractual relationship with Law Firm and each of Law Firm’s clients, and that such relationships would create a continuing or frequently recurring conflict between Commissioner’s private interests and the performance of Commissioner’s public duties, or would impede the full and faithful discharge of City Commissioner’s public duties. This conflict would exist even if Commissioner were merely in an “of counsel” capacity to Law Firm. Question 2. Commissioner also asked whether a prohibited conflict exists where members of Law Firm represent clients before City boards other than the City Commission. The Florida Commission on Ethics answered that question in the negative, stating that its “opinions generally have found no conflict would be created where a member of one board represented clients before another board within the same local government.” The Commission cautioned, however, that Commissioner should seek guidance from the Florida Bar, referencing Opinion 74-27 of the Florida Bar’s Professional Ethics Committee.
Florida Commission on Ethics order denying attorney’s fees to subject of ethics complaint reversed. Osborne v. Florida Comm’n on Ethics, 951 So.2d 25 (Fla. 5th DCA 2007). See discussion in “Fees” section.
Public official falsely accused of ethics law violations not required to prove “actual malice” to recover fees and costs from accusers. Brown v. Florida Comm’n on Ethics, 969 So.2d 553 (Fla. 1st DCA 2007) (on rehearing). See discussion in “Fees” section.
Florida Commission on Ethics advises that law firm can be “lobbying firm” under state ethics law if even one firm lawyer is registered to lobby. Florida Commission on Ethics Opinion 07-08. See discussion in “Law Firms” section.
Public records law does not require copies be furnished free of charge to convicted defendant pursuing postconviction relief. Clowers v. State, 960 So.2d 840 (Fla. 3d DCA 2007). Convicted Defendant planned to prepare a motion for postconviction relief. Pursuant to Fla.Stat. sec. 119.01, he sought production of the State Attorney's files on his case. Defendant declared that he was indigent and sought the documents for free. The trial court denied the motion. Defendant appealed. The Third DCA affirmed. defendant had a right to a copy of the State's files, but he was not entitled to a free copy. “[W]hile an indigent prisoner may obtain free copies for a plenary appeal, there is no such provision to obtain them afterward.”
Litigation files of county and its law firm continue to be exempt from public records laws while claimant pursues claim bill in legislature. Wagner v. Orange County, 960 So.2d 785 (Fla. 5th DCA 2007). Plaintiff successfully sued County in a wrongful death case and obtained a verdict of approximately $900,000. Because recovery from County is capped at $100,000 per person and $200,000 per accident, Plaintiff is pursuing a claim bill in the Florida Legislature for the remainder of the judgment. Plaintiff filed a public records request seeking the litigation files of County and its Law Firm. County and Law Firm resisted production, arguing that the files were exempt from the public records laws. The trial court ruled in favor of County and Law Firm. Plaintiff appealed. The Fifth DCA affirmed. As to County's files, the court stated that "a legislative claim bill is truly a claim for relief and as such is included in the phrase 'settlement of all claims arising out of the same incident.' The absence of the term 'bill' after the word 'claims' does not remove claim bill proceedings from the ambit of the exemption from disclosure. A claim bill is by its very nature a 'claim,' though it is one pursued not in the courts, but rather in the legislature. Nothing in subsection 768.28(16)(b) acts to limit 'claims' to judicial proceedings." The court rejected Plaintiff's assertion that this reasoning would result in claims files being kept secret forever. “[O]nce the [4-year] limitations period for filing a claim bill expires, or if a bill is filed and relief results, 'termination of all litigation and settlement of all claims arising out of the same incident' has occurred. At that point, the exemption from disclosure, by its language and logic, ends.” Regarding Law Firm's files, Plaintiff argued that the term "adversarial administrative proceedings" in Fla.Stat. sec. 119.071(1)(d) "does not apply to encompass the claim bill process which is a creature of the legislature." The appeals court disagreed. [T]he legislature's use of the phrase 'conclusion of the litigation' encompasses post-judgment collection efforts, which include the claim bill filed here."
RULES AND ETHICS OPINIONS Rule 4-5.6(b) (restrictions on right to practice) held constitutional by Florida Supreme Court. Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). See discussion in “Disciplinary Proceedings” section.
Florida Supreme Court amends lawyer advertising rules. In re: Amendments to Rules Regulating The Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (revised opinion). See discussion in “2007 Rule Changes” section.
Florida Supreme Court amends Rules Regulating The Florida Bar, including adding new rule governing arbitration clauses in lawyer-client fee contracts. In re: Amendments to the Rules Regulating The Florida Bar, ___ So.2d ___, 33 Fla.L.Weekly S14 (Fla., No. SC06-736, 12/20/2007), 2007 WL 4440381. See discussion in “2007 Rule Changes” section.
Voluntary “Florida Registered Paralegal Program” established. In re: Amendments to the Rules Regulating The Florida Bar -- Florida Registered Paralegal Program, 969 So.2d 360 (Fla. 2007). See discussion in “2007 Rule Changes” section.
Florida Bar ethics committee approves advisory opinion addressing lawyer’s obligations after receiving documents that lawyer’s client had wrongfully obtained. Florida Ethics Opinion 07-1. See discussion in “Attorney-Client Relationship” section.
TRIAL CONDUCT Defense verdict in slip and fall case reversed due in part to counsel's argument that violated Rule of Professional Conduct 4-3.4(e). Ventimiglia v. TGI Fridays, Inc., ___ So.2d ___ (Fla. 4th DCA, No. 4D06-2001, 12/19/2007), 2007 WL 4404434. On redirect examination Defense Counsel questioned Defendant expert regarding an earlier case in which the expert had testified for Defendant. During that questioning Defense Counsel stated that, in the prior case, the jury took less than 20 minutes to come back with a defense verdict. Plaintiff lost and appealed, contending that Defense Counsel's statement regarding the results of the prior case warranted reversal. The appeals court reversed and remanded for a new trial. “First, and most egregious, is that [Defendant's] counsel, [], personally injected the highly prejudicial fact that it took the jury less than twenty minutes to return a defense verdict. This is a violation of Rule of Professional Conduct 4-3.4(e).” Rule 4-3.4(e) provides: “A lawyer shall not knowingly: . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” Additionally, in a footnote the court criticized Defense Counsel for his “cavalier attitude toward the rules.”
Two District Courts of Appeal address discovery orders involving attorneys who wished to view or videotape neuropsychological examinations of their clients. Florida Department of Transportation v. Piccolo, 964 So.2d 773 (Fla. 2d DCA 2007). Defendant DOT requested a neuropsychological examination of Plaintiff. The court entered a protective order specifying terms of the examination. DOT petitioned for a writ of certiorari to modify a provision permitting Plaintiff's counsel to retain a copy of the tape. The DOT neuropsychologist had testified that he would not perform the exam unless the court required that the tape and all copies be returned to him after the case. The doctor also testified that there is a "proprietary interest" in the questions used in the examination and that his professional association's ethical code "indicates that such materials should not be given to those not certified as neuropsychologists and that any such videotapes should be returned to the examiner." Despite this testimony, the trial court found that the protective order's confidentiality limitations on the attorney's use of the videotape during and after litigation were sufficient to satisfy the doctor’s concerns. On certiorari review, the Second DCA noted that Fla.R.Civ.P. 1.360(3) gives the trial court discretion to establish rules for neuropsychological examinations and that, in the Second District, case law has determined that "such exams may be videotaped and that third parties may be present." Although the issue of who may maintain a videotape of an exam had not been previously litigated, the appellate court concluded: “Although we cannot see why it would be essential for [Plaintiff]'s trial counsel to maintain a copy of such a tape in his files until the destruction of the files, we cannot conclude that the trial court departed from an established principle of law by allowing him to do so. Rule 1.360(a)(3) gives the trial court the discretion to determine the conditions of the examination. The trial court considered the professional concerns of DOT's expert and addressed them by placing specific limits on the use of the tape by counsel.” Bacallao v. Dauphin, 963 So.2d 962 (Fla. 3d DCA 2007) (on rehearing). The court’s order required Plaintiff to submit to a neuropsychological examination without her counsel present and did not permit the exam to be taped. Plaintiff petitioned for writ of certiorari. The Third DCA granted the writ and quashed the order, concluding that Defendants failed to meet the applicable two-pronged test of Grooms v. Service Max Delivery & Installation, 953 So.2d 624 (Fla. 1st DCA 2007) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 821 (Fla. 2004). "Under Florida law, a party seeking to exclude a third party observer from a compulsory medical examination must (1) provide a case-specific reason why their presence would disrupt the examination and (2) prove at an evidentiary hearing that no other qualified physician can be located in the area who would be willing to perform the examination under such circumstances." Presence of Counsel. Defendants met the first prong of the test but not the second. "The record reflects that [Defendants' expert] testified at the evidentiary hearing that she was aware of other doctors in the area who, despite violating ethical obligations, would perform the Petitioner’s examination with an attorney present. . . . Dr. []’s testimony in this case does not constitute sufficient evidence to establish that no other neuropsychologist in the area would be willing to conduct the examination with [Plaintiff]’s counsel present." Taping the examination. Defendants failed to identify a case-specific reason to prohibit recording the examination. Additionally, as with the presence of counsel issue, the testimony of Defendants' expert established that other neurophychologists in the area were available to perform the exam.
TRUST FUNDS Lawyer whose trust account check to client has not cleared has duty to stop payment when served with writ of garnishment seeking those funds. First American Holdings, Inc. v. Preclude, Inc., 955 So.2d 1231 (Fla. 2d DCA 2007). Law Firm represented Client in a matter that settled, with Client's adversary agreeing to pay the proceeds into Law Firm's trust account. In an unrelated matter, Bank sought to collect on a judgment against Client. Bank served Law Firm with a writ of garnishment before Law Firm received the settlement proceeds. Law Firm answered that it did not currently hold any funds belonging to Client. Law Firm received the settlement proceeds into its trust account 2 days later. Law Firm wrote 2 checks on those proceeds, one to Law Firm for its fees and the other to Client. Law Firm hand-delivered the check to Client. Four days later Bank served another writ of garnishment on Law Firm. Law Firm answered by denying that it was in possession or control of any funds of Client. Bank later learned that, at the time Law Firm answered, the trust account check to Client had not cleared. Bank sought relief against Law Firm, alleging that the funds had been in Law Firm's possession when it received the second writ of garnishment and that, therefore, Law Firm "had a duty to issue a stop payment order for the check and to preserve the funds for the Bank's collection." Law Firm argued that any such duty only applied to banks, not to nonbank garnishees. Agreeing with Law Firm, the court granted the firm's motion to dismiss. Bank appealed. The Second DCA reversed. Summarizing its decision, the court stated: "Based on our review of the statutory and decisional law, we conclude that Florida does impose on both bank and nonbank garnishees the duty to retain funds held by the garnishee even after a check on those funds has been drawn by the garnishee and delivered to the payee. Furthermore, we can conceive of no reason to create a third category for attorneys' trust accounts. Accordingly, we conclude that the attorney garnishee has the same duty as other nonbank garnishees, even in matters related to trust accounts." Despite its conclusion, the court recognized that "this is a case of first impression that addresses a question of great importance to attorneys and their clients" and certified the question to the Florida Supreme Court.
UNAUTHORIZED PRACTICE OF LAW Lawyer licensed only in New York may not open Florida office and advertise for “N.Y. Legal Matters Only” or “Federal Administrative Law.” Gould v. Florida Bar (11th Cir., No. 06-15142, Dec 12, 2007) (not selected for publication in the Federal Reporter), 2007 WL 4403556 , affirming Gould v. Harkness, 407 F.Supp.2d 1357 (S.D.Fla. 2006). See discussion in “Advertising” section.
UPL for nonlawyer trustee to file notice of appeal on behalf of trust. EHQF Trust v. S&A Capital Partners, Inc., 947 So.2d 606 (Fla. 4th DCA 2007). A notice of appeal filed by a trust, was not signed by a lawyer licensed to practice law in Florida. The Fourth DCA issued an order providing that the appeal would be dismissed unless the trust filed an amended notice of appeal signed by a licensed lawyer, stating: "Section 454.23, Florida Statutes (2006), prohibiting the unlicensed practice of law, provides no exception for representation of a trust. Although Florida has not previously addressed the issue, other states have concluded that a trustee cannot appear pro se on behalf of the trust, because the trustee represents the interests of others and would therefore be engaged in the unauthorized practice of law. [Citations omitted]."
WITHDRAWAL FROM REPRESENTATION Lawyer who withdrew from contingent fee case for health reasons may not have forfeited his right to fee. Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007). See discussion in “Fees” section.
Defense counsel’s “nodding acquaintance” with key state witness was not conflict of interest requiring counsel’s withdrawal. Kormondy v. State, ___ So.2d ___, 32 Fla.L.Weekly S627 (Fla., Nos. SC05-1200, SC06-210, 10/11/2007). See discussion in “Conflicts of Interest” section. |
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