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2008 FLORIDA LEGAL ETHICS REVIEW By: Timothy P. Chinaris Thomas Goode Jones School of Law Faulkner University, Montgomery, Alabama Member and Past Chair, Florida Bar Professional Ethics Committee Copyright 2009 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 2008. The summaries are arranged by subject. For continuing updates on Florida legal and judicial ethics developments, please visit the “sunEthics” website (www.sunEthics.com). Subjects covered are:
2008 RULE CHANGES (AND PROPOSED CHANGES) Florida Supreme Court amends Rule 4-5.5 and related rules regarding multijurisdictional practice of law in Florida by out of state lawyers. In re: Amendments to the Rules Regulating The Florida Bar and the Rules of Judicial Administration -- Multijurisdictional Practice of Law, 991 So.2d 842 (Fla. 2008). Responding to a report and recommendations filed by the Florida Bar, the Florida Supreme Court amended Rule of Professional Conduct 4-5.5, as well as related Rule 1-3.11 of the Rules Regulating the Florida Bar and Florida Rule of Judicial Administration 2.510. When substantially amending Rule 4-5.5 in 2005, the Court had directed the Bar to monitor the implementation of the new rule and report back to the Court with any recommendations for changes or improvements. See In re: Amendments to Rule Regulating the Florida Bar and Florida Rules of Judicial Administration, 907 So.2d 1138 (Fla. 2005). The primary substantive change made by the Court to Rule 4-5.5 was clarification of language that the Bar considered confusing regarding the fact that any out-of-state lawyer who temporarily practices law in Florida pursuant to Rule 4-5.5 must personally meet the qualifying standards under that rule. The language deleted by the Court indicated that a lawyer who was "assisting" another lawyer authorized under Rule 4-5.5 to appear in a Florida proceeding could also appear in that proceeding without personally being authorized. The Court also amended the Comment to Rule 4-5.5 regarding the verified statement that Rule 1-3.11 requires to be filed by an out-of-state lawyer who is appearing in a Florida arbitration. The revised Comment clarifies that, if the out-of-state lawyer is admitted pro hac vice in a Florida court case and the court orders that the case be sent to arbitration, "[a] verified statement is not required if the lawyer first obtained the court's permission to appear pro hac vice and the court has retained jurisdiction over the matter." The Court also amended Florida Rule of Judicial Administration 2.510 and the pro hac vice form included within the rule. The rule changes took effect on January 1, 2009.
Florida Bar files multiple rule change requests with Florida Supreme Court covering fees, conflicts, advertising, trust accounting and more. In October 2008 the Florida Bar filed its regular rules change package with the Florida Supreme Court. The Bar’s proposals address a number of rules. Some of the significant proposals are summarized below. Attorney's fees (Rule 4-1.5). The proposed amendment to Rule of Professional Conduct 4-1.5(e) addresses nonrefundable fees. The proposed change would continue to permit nonrefundable fees but would specify that a fee that is "nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee." The test for reasonableness of a fee "applies to all fees for legal services without regard to their characterization by the parties." The proposed amendment to the Comment to Rule 4-1.5 defines "retainers," "flat fees," and "advanced fees." Gifts to lawyers (Rule 4-1.8(c)). Rule 4-1.8(c) prohibits lawyers from soliciting gifts from clients or preparing documents giving them gifts from clients, unless the client is a relative. The proposed amendment to the Comment to Rule 4-1.8 would specify that the exception to the rule's prohibitions applies to relatives "related by blood or marriage" to the lawyer. Financial assistance to clients (Rule 4-1.8(e)). The proposed amendment to the Comment to Rule 4-1.8(e) would clarify that it is permissible for a lawyer to advance on a client’s behalf expenses of "diagnostic medical examination used for litigation purposes." (In contrast, advances for medical treatment are not permitted under the rule.) Conflicts of interest involving former clients (Rule 4-1.9). The proposed amendment to Rule 4-1.9 would add a new subsection (c) that would prohibit a lawyer from "reveal[ing]" information relating to the representation of a former client without the former client's consent. The current version of Rule 4-1.9 prohibits only a lawyer's "use" of information to the disadvantage of a former client. The proposed amendment contains exceptions to the prohibitions where the Rules of Professional Conduct "permit or require" use or disclosure of the information (the present exception refers only to "use"). The present exception for "generally known" information would continue to apply only to "use" of information about a former client. Candor toward the tribunal (Rule 4-3.3). The Bar's petition describes 3 different proposals for amendments to Rule 4-3.3: The first proposal would move language from the Comment to Rule 4-2.4 (regarding lawyers serving as third-party neutrals) to the Comment to Rule 4-3.3. The language specifies that the requirements of Rule 4-3.3 apply when a "dispute resolution process takes place before a tribunal, as in binding arbitration." Otherwise, the lawyer's duty of candor "toward both the third party neutral and other parties is governed by rule 4-4.1." The second proposal would reorganize Rule 4-3.3 to bring it into closer conformity with ABA Model Rule of Professional Conduct 3.3. Significant proposed changes to Rule 4-3.3 would: specify that a lawyer shall not make a false statement of any fact to a tribunal (the rule presently prohibits only false statements of "material" fact); clarify that a lawyer has an obligation to take reasonable remedial measures whenever the lawyer, "the lawyer's client, or a witness called by the lawyer" has offered material evidence and the lawyer later learns of its falsity; and add a provision from the ABA Model Rule regarding a lawyer's obligation with respect to knowledge of criminal or fraudulent conduct in connection with an adjudicative proceeding. Proposed changes to the Comment would: delete language indicating that a lawyer's duty of candor may be different in civil and criminal matters; and add language specifying that a lawyer's duty of candor to the tribunal applies "in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition." The third proposal would address a lawyer's responsibilities regarding client perjury. The proposed amendment to the Comment to Rule 4-3.3 would remove language indicating that withdrawal from the representation could be a satisfactory "remedial measure" when a lawyer learns that a client or witness for the client has testified falsely and would add language stating that "[i]n any case, the advocate should ensure disclosure is made to the court." The proposal would also delete language from the Comment that previously was inserted in an attempt to harmonize the Rule and Florida Ethics Opinion 90-6, concerning a lawyer's client who gave a false name to a police officer when arrested. (Opinion 90-6 has since been withdrawn; a proposed substitute in under consideration by the Bar’s Board of Governors. See discussion in “Candor Toward the Tribunal” section.) Celebrities and sounds used in lawyer ads (Rule 4-7.2). The use of celebrities and certain sounds (i.e., sounds that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener") presently are prohibited only in TV and radio ads. The proposed amendment to Rule 4-7.2(c) would extend this prohibition to all forms of lawyer advertising. Direct mail ads in domestic violence injunction cases (Rule 4-7.4). The proposed amendment to Rule 4-7.4(b) would prohibit lawyers from sending direct mail ads to prospective clients if the ad "concerns a request for an injunction for protection against any form of physical violence and is addressed to the respondent in the injunction petition, if the lawyer knows or reasonably should know that the respondent named in the injunction petition has not yet been served with notice of process in the matter." Speakers and sounds in TV and radio ads (Rule 4-7.5). The proposed amendment to Rule 4-7.5 would delete the current requirement that a disclosure be made in TV and radio ads identifying a spokesperson as a nonlawyer when that is the case. (The use of nonlawyer celebrity spokespersons would still be prohibited under the proposed amendment to Rule 4-7.2, discussed above.) The proposed amendment would also eliminate the current restriction against any background sound other than instrumental music. (The current restriction would be replaced by the proposed amendment to Rule 4-7.2(c), which would prohibit all sounds that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener".) Bar review of ads (Rule 4-7.7). The proposed amendment to Rule 4-7.7 would: extend from 15 days to 20 days the time period in which the Bar must respond to a lawyer who files a TV or radio ad for review; require that TV or radio ad filings include "a printed copy of any on-screen text;" and provide that an opinion of compliance from the Bar will be binding on the Bar "in a grievance proceeding." Lawyer referral services (Rule 4-7.10). The Bar's petition describes 2 different proposals for amendments to Rule 4-7.10: The first proposal adds language emphasizing that a lawyer has the responsibility to ensure that a lawyer referral service's ads comply with applicable rules before accepting referrals from the service: "It shall be a violation of these Rules Regulating The Florida Bar and a failure of such responsibility if the lawyer knows or should have known that the service is not in compliance with applicable rules or if the lawyer failed to seek information necessary to determine compliance." The second proposal appears to broaden the definition of "lawyer referral service." The current definition refers to the service receiving a "fee or charge" for causing the direct or indirect referral to a lawyer "drawn" from a specific group or panel of lawyers. The proposed language would refer to the receipt of "any consideration, monetary or otherwise, given in exchange" for a referral to a lawyer "selected" from a specific group or panel. Responding to inquiries from the Florida Bar (Rule 4-8.4). The proposed amendment to Rule 4-8.4(g) would make failure to respond to an official inquiry without good cause "a matter of contempt" that may be processed in accordance with rule 3-7.11(f). This would allow the Bar to address failure to respond in a summary process rather than through the ordinary grievance process. Sex with clients (Rule 4-8.4). The proposed amendment to Rule 4-8.4(i) would create a rebuttable presumption that sexual conduct commencing after formation of a lawyer-client relationship "exploits or adversely affects the interests of the client or the lawyer-client relationship." A lawyer could rebut this presumption "by proving by a preponderance of the evidence that the sexual conduct did not exploit or adversely affect the interests of the client or the lawyer-client relationship." The prohibition and presumption in the rule would be personal to the involved lawyer and would not apply to other lawyers in the same firm "if the lawyer involved in the sexual conduct does not personally provide legal services to the client and is screened from access to the file concerning the legal representation." The proposed Comment to Rule 4-8.4 would state that lawyer-client sexual conduct that began before formation of the lawyer-client relationship would violate the rule if it "exploits the lawyer-client relationship, negatively affects the client's interest, creates a conflict of interest between the lawyer and client, or negatively affects the exercise of the lawyer's independent professional judgment in representing the client." Trust account overdraft protection (Rule 5-1.1). The proposed amendment adding Rule 5-1.1(k) of the Rules Regulating Trust Accounts would state: "An attorney shall not authorize overdraft protection for any account that contains trust funds." Trust account records (Rule 5-1.2). The proposed amendment to Rule 5-1.2 would authorize lawyers to maintain trust account records "stored in digital media as long as the copies include all data contained in the original documents and may be produced when required."
Florida Bar petitions Florida Supreme Court for approval of rule that would allow lawyers’ websites to contain past results, testimonials, and characterizations of quality (when accompanied by appropriate disclaimers). In February 2008 the Florida Bar asked the Florida Supreme Court to approve revisions to current Rule 4-7.6, Florida Rules of Professional Conduct, governing lawyers’ websites. The revised rule would require that a website’s homepage 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)).
2008 CASES AND ETHICS OPINIONS (BY SUBJECT) ADVERTISING Florida’s lawyer advertising rules and regulation system are challenged in federal court, and the suit survives challenges based on standing and abstention. Harrell v. Florida Bar, ___ F.Supp.2d ___ (M.D.Fla., No. 3:08-cv-15-J-33TEM, 2/29/2008), 2008 WL 596086. A Jacksonville lawyer (William Harrell), his law firm (Harrell and Harrell, P.A.), and a public interest organization (Public Citizen, Inc.), sued the Florida Bar in the U.S. District Court for the Middle District of Florida. The suit seeks declaratory and injunctive relief on the grounds that the challenged Florida Rules of Professional Conduct violate the First and Fourteenth Amendments to the U.S. Constitution. The court explained that plaintiffs challenged the following rules: (a) Rule 4-7.1, to the extent it requires advertisements to provide only “useful, factual information presented in a nonsensational manner;” (b) Rule 4-7.2(c)(1)(D), to the extent it classifies a truthful statement as “misleading” because the statement would also be true for many other lawyers; (c) Rule 4-7.2(c)(1)(D), to the extent the rule prohibits statements that are “unsubstantiated in fact” but that are unquantifiable, statements of opinion, or otherwise not false or misleading; (d) Rule 4-7.2(c)(1)(G), which prohibits statements that promise results, to the extent the rule prohibits statements that are unquantifiable, statements of opinion, or otherwise not false or misleading; (e) Rule 4-7.2(c)(1)(I), which prohibits any communications that “compares the lawyer's services with other lawyer's services,” to the extent the rule prohibits statements that are unquantifiable, statements of opinion, or otherwise not false or misleading; (f) Rule 4-7.2(c)(2), which prohibits statements “describing or characterizing the quality of the lawyer's services,” to the extent the rule prohibits statements that are unquantifiable, statements of opinion, or otherwise not false or misleading; (g) Rule 4-7.2(c)(3), which prohibits “visual and verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events” that are “manipulative, or likely to confuse the viewer,” to the extent the rule prohibits statements that are not false or misleading; and 4-7.5(b)(1)(A), to the extent it also prohibits such statements; (h) Rule 4-7.5(b)(1)(C), which prohibits the use of “any background sound other than instrumental music;” (i) Rule 4-7.7(a)(1), which imposes a prior restraint on attorney advertising. The Bar filed motions urging the court to abstain from hearing the suit under the Pullman doctrine (Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 469 (1941)) so that some of the issues could be decided first in a state forum. The court denied the Bar’s motion for abstention, noting that abstention is not favored when First Amendment rights are at stake and that piecemeal resolution of claims also is not favored. The court likewise rejected the Bar’s contention that plaintiffs lacked standing. In September 2008 the parties filed motions for summary judgment. Updates can be found on the Public Citizen website at <http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=447>.
ATTORNEY-CLIENT RELATIONSHIP Third DCA discusses test for establishment of attorney-client relationship in context of summary judgment granted in legal malpractice case. Mansur v. Podhurst Orseck, P.A., 994 So.2d 435 (Fla. 3d DCA 2008). Law Firm was sued for legal malpractice by an estate’s personal representatives. The decedent was one of several brothers. Plaintiffs alleged that the decedent had been a client of Law Firm. Law Firm disagreed, asserting that it was retained to represent only one of the brothers. The trial court granted Law Firm's motion for summary judgment. The Third DCA reversed, concluding that documents in the record "[v]iewed in their totality . . . support a conclusion that the test for the attorney-client relationship was satisfied." The court discussed the test under existing Florida law: "Establishment of the attorney-client relationship – and thus the attachment of the concomitant rights and duties of each side to the relationship – does not require a written agreement or evidence that fees have been paid or agreed upon. The Florida Supreme Court has said that the test for an attorney-client relationship 'is a subjective one and hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice. However, this subjective belief must . . . be a reasonable one.' The Fla. Bar v. Beach, 675 So.2d 106, 109 (Fla. 1996) (citation and internal quotation marks omitted). See also Gonzalez v. Chillura, 892 So.2d 1075, 1077 (Fla. 2d DCA 2004); Dean v. Dean, 607 So. 2d 494, 497 (Fla. 4th DCA 1992)." Additionally, the court quoted Restatement of the Law Governing Lawyers section 14. The court also looked at the issue by considering whether a court would have sustained a claim of attorney-client privilege had such a claim been raised by one of the brothers who alleged the existence of an attorney-client relationship. The court observed that a claim of privilege would have been upheld. Mansur v. Podhurst Orseck, P.A., 994 So.2d 435 (Fla. 3d DCA 2008).
"Form" language in retainer agreement is not by itself sufficient to authorize party's lawyer to file proposal for settlement. Ponce v. U-Haul of Florida, 979 So.2d 380 (Fla. 4th DCA 2008) (on rehearing). Plaintiffs hired Lawyer to represent them in an auto accident suit. Plaintiffs "signed a form" authorizing Lawyer to "[n]egotiate settlement, sign on my behalf, any and all documents required to settle my pending personal injury/litigation/workman’s compensation cases including but not limited to: general release, stipulation of settlement; release of claim, settlement drafts, check or any and all documents required for the settlement of my case, whatsoever in nature; . . . ." and giving Lawyer "full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done regarding my personal injury case . . ." Defendant filed an offer of judgment and Lawyer filed a proposal for settlement. Plaintiffs then discharged Lawyer. In the meantime, however, Defendant accepted the offer made by Lawyer. Defendant filed a motion to compel settlement, which the trial court granted. The Fourth DCA reversed, agreeing with Plaintiffs’ contention that Lawyer's "authority to negotiate settlement did not include the power to file a formal proposal for settlement without the client's knowledge." (Emphasis in original.) To enforce a settlement offer Defendant was required to show that Lawyer had "a clear and unequivocal grant of authority" from Plaintiffs. Lawyer's good-faith belief that he was authorized to make the proposal was not sufficient. Moreover, the language in the “form” retainer agreement was not sufficient to provide the necessary clear and unequivocal authority to file the settlement proposal. "We do not deem the form document signed at the time counsel is retained as, in and of itself, sufficient to that end. We note that this is not a circumstance where a power is signed because a client is incapacitated or unavailable, or where there is an ongoing relationship or other explanation for a broad power of attorney being given at the time of retention."
Order enforcing personal injury settlement reversed because plaintiff's lawyer exceeded settlement authority. Johnson v. Skarvan, 992 So.2d 873 (Fla. 5th DCA 2008). Lawyer represented a personal injury Plaintiff. Plaintiff told Lawyer that he would be unable to attend a scheduled IME. Lawyer advised Plaintiff that failure to attend might result in sanctions that could include dismissal. Plaintiff responded by authorizing Lawyer to settle for $7500. Defendant offered $6500. "Apparently unable to contact [Plaintiff] before the scheduled independent medical examination, and believing that it was in [Plaintiff]’s best interest to accept the lesser sum to avoid the possibility of sanctions, [Lawyer] agreed with [Defendant]’s counsel to settle [Plaintiff]’s case for $6,500." Lawyer then moved to withdraw and asserted a lien on the settlement proceeds. Lawyer also filed a motion to enforce the settlement, which the trial court granted on the grounds that the settlement was in Plaintiff's best interest and Lawyer "had implied authority to settlement the case due to the so-called emergency." The Fifth DCA reversed. The general rule is that mere employment of a lawyer does not give the lawyer implied or apparent authority to settle the client’s case. "An exception to this general rule is said to exist 'when an attorney is confronted with an emergency which requires immediate action to protect the client's interests and consultation with the client is impossible.' [Citations omitted.] Although several courts, including our own, have acknowledged this exception, [Defendant] concedes, and our research confirms, that no Florida appellate court has ever found the exception to be applicable. We conclude that it is not applicable here, even assuming that the exception is legally sound. As for the lower court’s finding that the settlement was in [Plaintiff]’s best interest, that finding does not bear on the legal issue here, which is counsel’s authority to settle the case, not the wisdom of counsel’s decision."
Order enforcing settlement agreement reversed due to lack of evidence that counsel had "clear and unequivocal" authority to settle. Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 989 So.2d 662 (Fla. 2d DCA 2008). The trial court entered order enforcing a settlement agreement. Opponents appealed, contending that the court erred because Proponent failed to establish that Opponents' lawyer had authority to settle. The Second DCA agreed and reversed. A party seeking to enforce a settlement agreement bears the burden of showing that the lawyer for the opposing party "had the clear and unequivocal authority to settle on the client’s behalf." Here, the record was not sufficient to permit such a conclusion. The only evidence presented by Proponent regarding Opponent's lawyer's authority was through its counsel, who did not have personal knowledge regarding what opposing counsel's clients had authorized him to do. Opposing counsel's clients testified that their lawyer "was authorized only to communicate to opposing counsel that his clients were proceeding in good faith toward settlement, not that they had entered into a binding settlement agreement." The lawyer did not testify.
Lawyer is unsuccessful in attempt to set aside client's settlement and continue suit in client's name to pursue lawyer's fee award. Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So.2d 688 (Fla. 4th DCA 2008). See discussion in “Fees” section.
Claim for contingent fee denied because contract was signed by person without authority and minor. Charles v. Klemick and Gampel, P.A., 984 So.2d 563 (Fla. 2d DCA 2008). See discussion in “Fees” section.
CANDOR TOWARD THE TRIBUNAL Florida Bar Professional Ethics Committee approves Proposed Advisory Opinion 90-6 (Reconsideration) addressing duties of lawyer whose criminal defense client is proceeding under false name. The Florida Bar Professional Ethics Committee approved Proposed Advisory Opinion 90-6 (Reconsideration), which addresses the duties of a lawyer whose criminal defense client is proceeding under a false name. Among other conclusions, the opinion states that a lawyer who learns of the false identity after undertaking the representation must attempt to persuade the client to disclose that the client is proceeding under a false name and, if that fails, must make disclosure to the court. The matter is now pending before the Bar’s Board of Governors. (See Florida Bar Procedures for Ruling on Questions of Ethics.)
COMMUNICATION Westlaw and court clerk's docket search results may provide sufficient grounds to allow interviews of jurors to determine if misconduct occurred. Sterling v. Feldbaum, 980 So.2d 596 (Fla. 4th DCA 2008). Plaintiff sued Doctor for negligence. Prospective jurors were asked about their prior litigation history. After the case was tried and final judgment on the verdict was entered for Defendant, Plaintiff's counsel filed a motion to interview jurors and a motion for new trial based on alleged juror misconduct. The trial court denied both motions. The motions were based on 3 jurors' litigation history that had not been disclosed during voir dire. Plaintiff's counsel supported the motions "with Westlaw printouts and information from the Broward County Court Clerk’s website about the three jurors." In denying the motions the trial court noted that "it was 'not sufficiently satisfied from the research' produced by appellant that the jurors she wanted to interview were the same individuals named in the Westlaw and public records research. The court further found that the information appellant produced regarding these jurors’ prior lawsuits was too remote in time and substance to be material." The Fourth DCA reversed the order denying the motion for juror interviews, stating: "Westlaw and Broward docket search results may provide reasonable grounds to believe that juror misconduct has occurred." The information presented by Plaintiff's counsel "was sufficient to show reasonable grounds that the jurors identified in the motion concealed material information during voir dire." The court affirmed the denial of the motion for new trial.
Trial court’s order granting post-trial juror interview reversed. Egitto v. Wittman, 980 So.2d 1238 (Fla. 4th DCA 2008). After the trial of a medical malpractice case resulting in a verdict for Defendant physician, Plaintiffs filed a motion seeking a post-trial interview of the jury foreman. They alleged that certain information was not disclosed by the juror. After the trial court granted the motion, Defendant petitioned the Fourth DCA for a writ of certiorari. The appellate court treated the petition as a non-final appeal of the order and, citing Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97, 99 (Fla. 1991), reversed because Plaintiffs “failed to establish that they would be entitled to a new trial based on allegations set forth in their motion.”
Comments by insurer's lawyer concerning allegedly fraudulent workers' compensation claim were non-actionable as statements of pure opinion. Dreggors v. Wausau Ins. Co., 995 So.2d 547 (Fla. 5th DCA 2008). Lawyer for Insurer made statements to a TV station concerning a workers' compensation claim that Insurer was contended was fraudulent. Claimant sued Lawyer for defamation. The trial court granted summary judgment for Insurer. The Fifth DCA affirmed because Claimant’s argument was procedurally barred. The court further stated, however, that in any event Lawyer's statements were not actionable because they were "pure expression of opinion." Quoting from Hay v. Indep. Newspapers, Inc., 450 So.2d 293 (Fla. 2d DCA 1984), the court pointed out that "pure" opinion is based on facts that the "communicator sets forth in a publication, or that are otherwise known or available to the reader or listener as a member of the public." Id. at 295. In contrast, "mixed" opinion is based on "facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication." In the instant case, Lawyer's statements were based on "information otherwise known or available to the public." Id. As such, Lawyer's statements were "pure opinion and not actionable as a matter of law."
CONFIDENTIALITY AND PRIVILEGES Congress passed and President Bush signed into law new Federal Rule of Evidence 502, concerning inadvertent waiver of attorney-client privilege. On September 19, 2008, President Bush signed into law legislation creating Federal Rule of Evidence 502. The new rule limits the circumstances under which inadvertent disclosure of information results in waiver of the attorney-client privilege or work product protection. The new rule applies to all proceedings commenced after it was signed.
Communications with lawyers seeking political, rather than legal, advice not protected by attorney-client privilege. Valliere v. Florida Elections Commission, 989 So.2d 1242 (Fla. 4th DCA 2008). Spouses were parties in an administrative matter with the Florida Elections Commission. The administrative law judge ruled that certain communications between Spouses and 2 lawyers were not protected by the attorney-client privilege, determining that Spouses "had not sought legal advice from the attorneys." The Fourth DCA denied Spouses’ petition for review. "Although the [Spouses] testified that they believed that they were consulting the attorneys for legal advice, the evidence presented a conflicting picture. The [Spouses] had substantial contacts with the attorneys for political advice, not legal advice, and the particular conversations sought to be protected occurred at a social gathering when the main thrust of the conversation was political. The administrative law judge concluded that the [Spouses] were not consulting with the attorneys in their professional capacity, nor was their manifest intention to seek professional legal advice."
Lawyer's advice to client regarding applicable statute of limitations not protected by attorney-client privilege. Waffle House v. Scharmen, 981 So.2d 1266 (Fla. 1st DCA 2008). In a worker's compensation case, the Judge of Compensation Claims ("JCC") found that the Employer/Carrier ("E/C") failed to provide Claimant with notice of his rights and ruled that the E/C was estopped from asserting a statute of limitation defense. The E/C appealed, arguing that the JCC abused her discretion by denying the E/C "the opportunity to depose Claimant’s counsel to determine whether counsel informed Claimant of the applicable statute of limitations, thereby providing Claimant with actual knowledge." The First DCA agreed and reversed. "It is well-established that no privilege attaches to attorney-client communications consisting of non-privileged information or the attorney’s recitation of statutory language." Because the lawyer's "communication of the applicable statute of limitation" to the client was "mere recitation of statutory language," it was not privileged. Waffle House v. Scharmen, 981 So.2d 1266 (Fla. 1st DCA 2008).
Trial court erred in requiring production of privileged documents used by witness to refresh recollection prior to testifying at deposition. Proskauer Rose LLP v. Boca Airport, Inc., 987 So.2d 116 (Fla. 4th DCA 2008). Former Client sued Law Firm alleging malpractice. During his deposition, a Law Firm Partner indicated that he had earlier met with Law Firm's defense counsel and reviewed certain documents to prepare for his deposition. Counsel had highlighted and made notations on portions of the documents. Partner did not review any of these documents during his deposition. Nevertheless, the trial court granted Former Client’s motion to compel production of the documents. The Fourth DCA quashed the production order. F.S. 90.613 provides in part: "When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence." The appeals court had previously recognized that this statute applies only to documents a witness refers to while testifying. "Although there is no obligation under this statute to produce documents a witness uses prior to testifying, we held that the trial court may allow inspection by the opposing party unless these documents are 'otherwise privileged.' Merlin [v. Boca Raton Community Hospital], 479 So.2d [236] at 239 [(Fla. 4th DCA 1985)]. If material used to prepare a witness before testifying is privileged, then it is protected from discovery." In the instant case, copies of the original (unannotated) documents had already been produced. The trial court's order went too far because the effect of the discovery order "would be to disclose to the opponent which documents [Law Firm]’s counsel thought were most relevant, which, along with the summaries it prepared for [Partner]’s deposition, were clearly work product and privileged attorney-client communication."
Trial court departed from essential requirements of law in ruling that attorney-client privilege did not protect letter to plaintiffs from law firm regarding statute of limitations. Samuel v. Shands Teaching Hospital and Clinics, Inc., 984 So.2d 627 (Fla. 1st DCA 2008). Plaintiffs in a medical negligence case sought advice from Law Firm. Law Firm wrote a letter to one of the Plaintiffs. Defendants sought discovery of the letter to show that the suit was barred by the statute of limitations. The court reviewed the letter in camera “and concluded that it was not confidential or privileged and that, even if the correspondence had been privileged, any privilege was waived by [Plaintiffs’] assertion in their complaint that their action was timely filed.” The First DCA quashed the order. Plaintiff consulted Law firm for legal advice. “Unlike the trial court, we find that the correspondence from [Law Firm] to [Plaintiff] was a confidential communication protected by the attorney-client privilege and that the privilege was not waived by [Plaintiffs’] allegation in their complaint that their lawsuit was timely filed.”
Third DCA quashes two discovery orders that would have resulted in disclosure of information protected by attorney-client and work product privileges, including information in defendant’s litigation management database. Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148 (Fla. 3d DCA 2008). Plaintiff brought a products liability case against Ford arising from a 1997 auto accident. The case was tried, but was reversed in 2007. After remand discovery disputes arose related to testimony from the Plaintiff's expert about other similar incidents involving the subject vehicle. Ultimately the trial court entered two orders, the "Sanction Order" and the "Suspension Order." Ford petitioned the Third DCA for a writ of certiorari, contending that complying with the orders would result in disclosure of material protected by the attorney-client and work product privileges. The Third DCA quashed the orders. The Sanction Order granted Plaintiff access to Ford's LMMS database containing litigation management information. The appellate court stated: "Although the written order purports to provide for in camera review of information for which Ford claims a privilege, it does so only after plaintiff’s expert has viewed the privileged information. The order requires plaintiff's expert to agree to a 'confidentiality order' before viewing Ford information. But this permits plaintiff’s expert to disclose any Ford documents or information, including documents and information which Ford claims are privileged and which have been submitted for in camera review, to plaintiff, plaintiff's counsel, plaintiff's counsel’s clerical staff, plaintiff's testifying experts, plaintiff’s consulting experts, other witnesses in this case, and attorneys, experts, and consultants representing other plaintiffs in other similar cases." The Suspension Order gave Plaintiff access to what Ford referred to as "suspension orders," which are "communications issued by attorneys in Ford's Office of General Counsel in connection with certain anticipated or pending litigation and administrative proceedings. They provide legal advice concerning documents that should be preserved in connection with those matters." The Sanction Order was quashed because the LMMS database contained both work product privileged information and attorney-client privileged communications. Regarding work product, the "LMMS database basically functioned as an attorney notebook to record the thoughts, impressions, opinions, and strategy of Ford's attorneys about litigation and is immune from discovery." Regarding attorney-client privilege, the court noted that the privilege extends to communications between employees and in-house general counsel. "We believe that the evidence before the trial court established that the LMMS database was used as a mechanism for Ford’s inside and outside counsel to communicate among each other, exchanging thoughts, opinions, strategies, mental impressions and advice regarding the defense of lawsuits and claims. These communications are made solely for the purpose of, and in furtherance of, the rendition of legal services to Ford and fall within the scope of the job duties of Ford’s in-house counsel. Thus, the evidence established that LMMS qualifies as confidential communications that are immune from discovery under the attorney- client privilege." The provision in the Order for in camera review was "meaningless" because the review would only after Plaintiff's expert had seen the information. Similarly, the Suspension Order called for disclosure of material protected by both the work product and attorney-client privileges. "We conclude that the Ford suspension orders were created by Ford’s attorneys in anticipation of litigation and thus constitute work product. Moreover, because revealing the documents identified by Ford’s counsel as those that need to be kept in anticipation of litigation would reveal the mental impressions of counsel, suspension orders fall within the absolute immunity protecting opinion work product. . . . Further, the suspension orders constituted legal advice given by Ford’s Office of the General Counsel to its client concerning the scope of documents which should be retained for purposes of pending or anticipated litigation. Thus, they are protected under the attorney-client privilege."
Trial court’s order requiring production of insurer’s allegedly privileged claim and underwriting files is quashed. State Farm Mutual Auto. Ins. Co. v. O’Hearn, 975 So.2d 633 (Fla. 2d DCA 2008). Insured sued Insurer alleging a statutory bad faith claim arising out of UM coverage. Insured sought production of Insurer's claim and underwriting files. Insurer objected, asserting privilege. The trial court ordered production of the files. The Second DCA quashed the order. "Until liability and damages are finally determined under the UM provisions of [Insured]'s policy, [Insured] is not entitled to the discovery she now seeks, and the trial court departed from the essential requirements of the law when it compelled that discovery. Improper production of these otherwise privileged and protected documents would cause material injury to [Insurer] that could not be corrected in a later appeal."
Plaintiff compelled to produce work product photos of slip-and-fall site under "undue hardship" exception. Kmart Corp. v. Sundmacher, 997 So.2d 1158 (Fla. 3d DCA 2008). Plaintiff allegedly was hurt after falling in Defendant's store in 1998. Shortly after the incident Plaintiff obtained photographs of the area. Defendant later became aware of the photos and sought production. Plaintiff argued that the photos could be produced only if Plaintiff decided to use them at trial. Defendant moved to compel production, alleging that it had no photos of the area and faced undue hardship in preparing its case as a result. The court denied the motion, noting that Defendant "could have taken its own photographs ten years ago; the photographs represent the plaintiff’s work product; and the passage of time did not create an undue hardship requiring production." The Third DCA ordered the photos produced. Although the photos were Plaintiff's work product, Fla.R.Civ.P. 1.280(b)(3) provides that some work product may be subject to discovery upon a showing of "undue hardship." Plaintiff had made the necessary showing "by demonstrating that the photographs in the plaintiff’s possession are relevant and material (they allegedly depict the condition of the floor at the time the plaintiff slipped and fell); there is no other means of obtaining the discovery requested (no other photographs were taken of the scene ten years ago when the incident allegedly occurred); and the photographs are the best evidence of the condition of the floor at the time of the alleged slip and fall . . ."
Order requiring disclosure of expert names and opinions over work product objections is reversed due to lack of evidence of need or undue hardship by party seeking disclosure. Taylor v. Penske Truck Leasing Corp., 975 So.2d 588 (Fla. 1st DCA 2008). Plaintiff was injured an auto accident that he cannot remember. Plaintiff and his wife sued Defendants. When answering Defendants' interrogatories Plaintiff relied on experts regarding the accident, but answered in the first person. Defendants did not know that the interrogatory answers came from the experts until Plaintiff was deposed. Defendants then moved to dismiss the case on the basis of fraud and moved for sanctions. Plaintiff opposed the motions, asserting work product privilege. At a hearing the court entertained legal argument but apparently no evidence was introduced. The trial court denied the motion to dismiss, did not rule on the motion for sanctions, and ordered Plaintiffs "'to reveal the names and opinions and bases of those opinions of their experts which they relied upon to answer'" certain interrogatories. The court found that Defendants had "shown exceptional circumstances warranting" disclosure. Plaintiffs petitioned for certiorari relief. The First DCA granted the petition, concluding that the trial court's order departed from the essential requirements of law "by finding exceptional circumstances exist without having heard any evidence from [Defendants] as to the need for the information or any undue hardship [Defendants] might face in collecting the information independently."
CONFLICTS OF INTEREST (INCLUDING DISQUALIFICATION) Finding additional conflict of interest violation, Florida Supreme Court rejects recommended discipline and suspends lawyer. Florida Bar v. Brown, 978 So.2d 107 (Fla. 2008). See discussion in “Disciplinary Proceedings” section.
Administrative Law Judges have authority to disqualify lawyers for unruly behavior; appeal of disqualification nets lawyer sanctions under F.S. 57.105. Gopman v. Dept. of Education, 974 So.2d 1208 (Fla. 1st DCA 2008). An Administrative Law Judge ("ALJ") found Lawyer's behavior disruptive and disqualified him. Lawyer petitioned for review, challenging his disqualification and expulsion from the proceedings. The First DCA appellate attorney's fees against Lawyer and his client pursuant to F.S. 57.105 and 120.595(6). F.S. 57.105 "does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported." The court concluded that the arguments raised by Lawyer in his petition lacked merit. One of the arguments rejected as meritless was that the ALJ's action in disqualifying Lawyer "was an exercise of judicial contempt power, which ALJs do not possess." An ALJ has the authority "to disqualify a counsel engaging in unruly, disruptive behavior."
Disqualification based on inadvertent receipt of privileged documents extends to entire law firm, not just receiving lawyer. Atlas Air, Inc. v. Greenberg Traurig, P.A., 997 So.2d 1117 (Fla. 3d DCA 2008). During litigation a third party contractor was retained to copy and produce certain documents to Defendant. The contractor inadvertently commingled some privileged documents with the ones that were to be produced. The privileged documents were received by Defendant's law firm. After Defendant got the privileged documents, Plaintiff moved to disqualify Defendant's law firm. The trial court disqualified the lawyer who first received the privileged documents, but declined to disqualify the entire law firm. The Third DCA granted Plaintiff’s petition for certiorari and disqualified the entire firm. The court viewed Defendant’s law firm as having taken "an unfair, 'informational' advantage of its adversary in the process. Abamar [Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc.] , 724 So.2d 572 [(Fla. 3d DCA 1998), rev. dismissed, 729 So.2d 918 (Fla. 1999)]; Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986); Double T Corp. v. Jalis Dev., Inc., 682 So.2d 1160 (Fla. 5th DCA 1996); Zarco Supply Co. v. Bonnell, 658 So.2d 151 (Fla. 1st DCA 1995). Disqualification of the firm as a whole is therefore required."
Appellate court quashes order disqualifying lawyer from opposing former client because matters were not "substantially related;" court cites recently amended Comment to Rule 4-1.9. Waldrep v. Waldrep, 985 So.2d 700 (Fla. 4th DCA 2008). Plaintiff sued her Son, Son's Wife, and Corporation. Defendants were represented by Lawyer, who "had long represented both the corporation and individual family members." Plaintiff moved to disqualify Lawyer because "he previously had represented her, her husband [], and the corporation on legal matters, both in court and outside of court." The trial court granted the motion based on Rule of Professional Conduct 4-1.9(a), which prohibits a lawyer from opposing a former client "in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent." The Fourth DCA quashed the disqualification order. Lawyer had represented Plaintiff in connection with Corporation’s business while Plaintiff was one of its owners. Plaintiff sold Corporation to Son and Son's Wife in 1997; she was no longer involved in management of the business, but remained a shareholder of Corporation until the purchase price was fully paid in 2003. Defendants denied that Lawyer had any involvement in the transaction through which Corporation was sold. After 1997 Lawyer represented Plaintiff in some personal collection matters, the last of which was "sometime in 2000-2002, when [Lawyer] advised her in connection with a matter that resulted in her obtaining a judgment in small claims court, though he did not represent her there. That was [Plaintiff's] only involvement with [Lawyer] within the previous five years." After quoting from the recently amended Comment to Rule 4-1.9 concerning the meaning of "substantially related," the appellate court concluded that the prior matters were not "substantially related" to the instant suit.
Alleged "agency" relationship between lawyers did not disqualify lawyer who was referred case due to referring lawyer's conflict of interest, nor does privileged information inadvertently included in transferred file require disqualification. Manning v. Cooper, 981 So.2d 668 (Fla. 4th DCA 2008). Driver and Passenger were in a vehicle that collided with a truck. Lawyer Gold represented Driver and Passenger (and a third person who was in the vehicle) against the truck owner. Gold made PIP claims against Driver's insurer, which took statements of all 3 vehicle occupants through its Special Investigations Unit ("SIU"). Gold got copies of the SIU statements. Gold later referred Passenger's case to Lawyer Bohannon. Passenger then sued Driver. Driver moved to disqualify Bohannon. Driver asserted 2 bases of disqualification: (1) that Gold's conflict under Rule of Professional Conduct 1.9(a) and (b) extended to Bohannon because of the alleged "agency relationship" between the two lawyers (Bohannon's law firm apparently acted as co-counsel with Gold in unrelated cases); and (2) Driver's SIU statement allegedly was included in the file given to Bohannon by Gold. The trial court disqualified Bohannon. The appeals court quashed the disqualification order. As to Driver's "agency relationship" argument, the court noted that Rule 4-1.9 did not apply to Bohannon because he never represented Driver. "We find no legal or factual support for [Driver]’s theory of an agency relationship under which [Driver] tried to extend the rule to [Bohannon]." Regarding the claim that Bohannon had a copy of Driver's SIU statement, the court relied on Applied Digital Solutions, Inc. v. Vasa, 941 So.2d 404 (Fla. 4th DCA 2006), for the proposition that there is "no rule of automatic disqualification any time an attorney inadvertently obtained documents, even if privileged." The court pointed out that "the record did not show an unfair advantage to [Passenger]" and that, furthermore, "any possibility of such an advantage could be resolved by [Driver] seeking to preclude the use of the SIU statement at trial." Finally, the court rejected Driver’s contentions that Rule 4-1.10 imputed Gold's conflict of interest to Bohannon and that Bohannon should be disqualified because he was partners with a lawyer who was listed as "of counsel" to Gold. "This was not argued in the motion to disqualify either, and we find it lacking in evidentiary and legal support as grounds for disqualification of Bohannon."
Order disqualifying law firm is quashed because trial court ruled without holding evidentiary hearing. The Event Firm, LLC v. Augustin, 985 So.2d 1174 (Fla. 3d DCA 2008). Based on an alleged conflict of interest, a trial court entered an order disqualifying Law Firm without first holding an evidentiary hearing. Law firm’s client petitioned the Third DCA for a writ of certiorari. The appellate court quashed the disqualification order. "Where disqualification is based on a conflict of interest between clients, the trial court must first determine whether an attorney-client relationship exists or existed between the non-moving party and the challenged attorney." This requires an evidentiary hearing if material facts are in dispute, as they were in the instant case. "The trial court relied on the court file and the parties’ argument, which were insufficient to resolve the attorney-client relationship dispute. Thus, the trial court should have held an evidentiary hearing before disqualifying [Law Firm]."
Trial court erred in granting motion to disqualify counsel filed 2 years after underlying facts became known. Rahman v. Jackson, 992 So.2d 390 (Fla. 1st DCA 2008). Jackson, personal representative of an estate, filed a motion to disqualify Rahman's lawyer. The trial court granted the motion. Rahman petitioned for a writ of certiorari. The First DCA quashed the disqualification order. The motion to disqualify was filed more than 2 years after Rahman hired the lawyer, and the facts supporting the motion "were readily available to [Jackson] through a deposition that was taken before [Rahman] was ever named as a defendant. The appellate court stated: "In Transmark, U.S.A., Inc. v. State, Department of Insurance, 631 So.2d 1112, 1116 (Fla. 1st DCA 1994), we held that '[a] motion to disqualify should be made with reasonable promptness after the party discovers the facts which lead to the motion.' We further explained, 'The rationale behind this rule is to prevent a litigant from using the motion as a tool to deprive his opponent of counsel of his choice after completing substantial preparation of the case.' Id. Because the trial court failed to apply these principles, and the injury caused by the order is not remediable by appeal, certiorari relief is warranted."
Once case sent to arbitrators per agreement to arbitrate, issue of lawyer disqualification is for arbitrators rather than trial court. Reuter Recycling of Florida, Inc. v. City of Hallendale, 993 So.2d 1178 (Fla. 4th DCA 2008). After issuance of a mandate by the Fourth DCA a case was pending in arbitration while the parties explored settlement. One party filed a motion in the trial court "to 'reopen' the court case" so that the party could seek disqualification of the opponent's law firm due to an alleged conflict created by the firm's recent hiring of a certain lawyer. The opponent argued that the arbitrators had exclusive jurisdiction over the motion to disqualify. The trial court ordered the parties to schedule a hearing on the disqualification motion. The Fourth DCA quashed the trial court's order. "The issue of disqualification is within the jurisdiction of the arbitrators. The agreement to arbitrate specifies 'all claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof, shall be decided by arbitration.' The issue of disqualification constitutes an 'other matter in question arising out of or relating to' the agreement." (Emphasis by court.) In the court's view, to hold otherwise would be to frustrate the purpose of the arbitration agreement. "While the trial court does have continuing jurisdiction in the case, that jurisdiction is now relegated to enforcement of any final award of the arbitrators, modifying or correcting such an award, or instead vacating an award because of one of the statutory reasons authorizing vacatur. Meanwhile, in order to give full effect to the agreement to arbitrate the trial court should stay its hand." (Footnotes omitted.)
Trial court erred in disqualifying entire State Attorney's Office from prosecuting criminal case. State v. Hayes, 997 So.2d 446 (Fla. 4th DCA 2008). Defendant was charged with various crimes. An alleged victim was a local lawyer who later became a judge. Plea negotiations were contentious. Defense counsel moved to disqualify the entire State Attorney's Office, "claiming that the office had an inherent conflict of interest in having to prosecute a case involving an alleged victim who is a sitting county court judge before whom the office must practice every day." Prior to the hearing on the motion, Defendant entered a plea and moved for a downward departure from the sentencing guidelines. At the sentencing hearing a number of witnesses testified, and the trial judge found significant mitigating evidence to justify a downward departure. The state called the judge who had been a victim of Defendant's crimes. The judge testified that "he was 'greatly offended' that the trial court had 'injected' itself in the plea process." The hearing was continued. When it reconvened, the trial judge sua sponte recused himself. Defense counsel then moved to enforce the plea agreement that allegedly had been reached, and also renewed his motion to disqualify the entire State Attorney's Office for the circuit. The motions were granted. The Fourth DCA reversed the disqualification order. "[T]here is no finding by the trial court to support the order disqualifying the entire State Attorney’s Office. Rather, the record reflects that the trial court felt compelled to grant the motion based upon 'an appearance of impropriety' in order to 'uphold the integrity, confidence and independence of the third branch of the government.' However, this pronouncement fails to recognize the difference between the standard for disqualifying a judge, see, e.g., Cave v. State, 660 So.2d 705, 708 (Fla. 1995) ('[T]he motion is legally sufficient if the facts alleged demonstrate that the moving party has a well grounded fear that he or she will not receive a fair trial at the hand of the judge.'), and that governing disqualification of a prosecutor, which is a higher burden and requires a showing of actual prejudice." The appeals court rejected Defendant's argument that actual prejudice had been shown. The court concluded by noting that, although perhaps there were grounds for the State Attorney's Office to recuse itself on its own initiative, "we cannot uphold the entire State Attorney’s Office being forced by an entirely separate branch of our state government to recuse itself from exercising its constitutional prerogative to prosecute a criminal matter."
Trial court erred in appointing lawyer to represent criminal defendant when lawyer had previously represented client and co-defendant. Cadejuste v. State, 993 So.2d 122 (Fla. 4th DCA 2008). In early 2004 assistant public defender Lawyer was appointed to represent two brothers, Defendant and Co-defendant. Shortly thereafter the Public Defender's Office moved to withdraw because the interests of the 2 brothers were "so adverse and hostile" that the office could not represent them both. New counsel was appointed for Defendant but Lawyer continued to represent Co-defendant "through at least December 2004." Lawyer then went into private practice. In September 2006 he was appointed to represent Defendant in Defendant's still-pending case. (Defendant had gone through several other lawyers in the interim.) Defendant objected to being represented by Lawyer. The trial court overruled the objection "and made no further inquiry." Defendant was convicted. The Fourth DCA reversed. "[W]hen [Lawyer] was appointed as a private attorney to represent [Defendant] for the second time and [Defendant] raised an objection based on a conflict of interest due to [Lawyer]’s prior representation of the co-defendant, the court neither appointed new counsel nor made any inquiry as to the basis of the asserted conflict of interest or whether the conflict would impair [Defendant]’s right to the effective assistance of counsel. The court’s failure in this regard deprived [Defendant] of the guarantee of 'assistance of counsel.' . . . Because [Defendant]’s own attorney told the court that it was an actual conflict to represent both co-defendants, '[Lawyer]’s subsequent representation of [Defendant], in the absence of a valid waiver by [Defendant], constitutes reversible error."
Trial court erred in denying public defender's motion to withdraw based on his office's simultaneous representation of defendant and informant who was helping prosecution. Scott v. State, 991 So.2d 971 (Fla. 1st DCA 2008). Defendant was charged with possession of drugs with intent to sell. Just before trial Defendant's counsel, an assistant public defender, moved to withdraw based on a conflict of interest. The public defender's office also represented the confidential informant who had made a "controlled buy" from Defendant that led to the charges. The trial court denied the motion to withdraw. The First DCA reversed. Quoting Bouie v. State, 559 So.2d 1113, 1115 (Fla. 1990), the court pointed out that, "‘a public defender’s office is the functional equivalent of a law firm. Different attorneys in the same public defender’s office cannot represent defendants with conflicting interests.’" The court also cited Rule of Professional Conduct 4-1.10(a) ("providing that, except in limited circumstances, one lawyer’s disqualification from a case on grounds of a conflict of interest is imputed to all lawyers practicing in the lawyer’s firm"). The court then noted that F.S. 27.5303 (2006) permits (but does not require) the trial court to inquire into the factual basis of a legally sufficient conflict-based motion to withdraw filed by a public defender's office. A legally sufficient motion should be denied "only if the trial court affirmatively finds that an indigent client or his or her representation have not been and are unlikely to be prejudiced by the public defender’s representation of the other client(s), i.e., that 'the asserted conflict is not prejudicial to the indigent client.'” The appeals court concluded that the trial court erred in not granting the motion to withdraw. "By requiring the public defender to represent appellant despite simultaneously representing the client whom it had apparently advised to provide assistance to the state, assistance that consisted of procuring evidence against appellant, the trial court impermissibly obligated the public defender to 'serve a dual and adverse stewardship.' Bellows v. State, 508 So.2d 1330, 1331-32 (Fla. 2d DCA 1987) . . . A disqualifying conflict of interest plainly exists when the public defender represents a defendant against whom the state obtained inculpatory evidence, with the assistance of another of the public defender’s clients, where the public defender’s office advances the latter’s interests, based upon damage the latter did to the first defendant’s legal position." Furthermore, "[t]he assistant public defender also told the trial court that appellant’s defense at trial would involve implicating the confidential informant as the source of the drugs which formed the basis of several of the state’s charges against [Defendant]." In the court's view, this simultaneous representation would result in a violation of Rule 4-1.7(a)(2). The court seemed to rest its decision primarily on the latter ground.
DISCIPLINARY PROCEEDINGS Florida Supreme Court again imposes harsher disciplinary sanction than that recommended by referee and sought by Bar. Florida Bar v. De la Torre, 994 So.2d 1032 (Fla. 2008). In 2000 Lawyer pleaded nolo contendere to criminal charges including 2 felonies. The court withheld adjudication and imposed 18 months probation, which Lawyer successfully completed. Lawyer failed to notify the Florida Bar of the determinations of guilt until August 2007. The Bar charged Lawyer with ethical violations. The referee recommended that Lawyer be found guilty of violating Rule 4-8.4(a) (violating the Rules of Professional Conduct) and Rule 4-8.4(b) (committing criminal acts reflecting adversely on lawyer's honesty, trustworthiness, or fitness to practice). The referee recommended a 90-day suspension and a 3-year probation. The Bar sought Supreme Court review, urging imposition of a 1-year suspension. Lawyer cross-petitioned, challenging aggravation findings. The Supreme Court rejected both the referee's recommended discipline and that sought by the Bar as "too lenient." The Court instead suspended Lawyer for 18 months followed by 3 years probation. The Court noted that, but for "substantial mitigation" found by the referee, it would have imposed a harsher sanction. The Court dismissed Lawyer's "advice of counsel" defense to his delay in reporting the determinations of guilt to the Bar. "[Lawyer] claims that he did not report what he thought were misdemeanor offenses to the Bar, because the Bar rules in effect at that time did not require reporting of misdemeanor pleas. We find [Lawyer]’s claim about relying on his trial counsel’s assurance that he was not entering pleas to any felony offenses to be utterly incredible. There is no plausible excuse for a member of The Florida Bar, who had more than twelve years of experience at the time, not to be fully aware that he was entering nolo contendere pleas to two felonies."
Florida Supreme Court imposes harsher disciplinary sanctions than those recommended by referee and sought by Bar. Florida Bar v. Varner, 992 So.2d 224 (Fla. 2008). Lawyer was charged with ethical violations in a workers' compensation case. The referee found that Client hired Lawyer's law firm, with Lawyer's Partner having primary responsibility for the case. Partner developed medical problems and transferred her files to Lawyer. In a telephone conversation with Lawyer, opposing counsel agreed to cancel a noticed deposition if Lawyer would voluntarily dismiss Client's case. Lawyer agreed, and dismissed the case without notifying or getting authorization from Client. Client found out about the dismissal from other sources. At the disciplinary hearing Lawyer "falsely testified that [Partner] expressly communicated [to him] the client's authorization to file the notice of voluntary dismissal." Lawyer never "returned the client's file or took any steps to protect his interests after the case was dismissed." Lawyer also failed to consider the statute of limitations issue presented by the voluntary dismissal. The referee recommended that Lawyer be found guilty of numerous rules violations, including Rules 4-1.1 (competence), 4-1.4 (communication with client), 4-1.16(d) (protecting client’s interests upon termination of representation), 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 4-8.4(d) (conduct prejudicial to administration of justice). The referee recommended that Lawyer be suspended for 90 days. Lawyer sought Supreme Court review of the guilty findings and the recommended discipline. The Supreme Court approved the findings of fact and recommendation of guilt. The Court, however, rejected the recommended level of discipline. Although the Bar had sought only a 90-day suspension, the Court suspended Lawyer for 1 year. The Court found the "most analogous case" to be Lawyer's prior discipline, Florida Bar v. Varner, 780 So.2d 1 (Fla. 2001). There Lawyer prepared a false notice of voluntary dismissal to "cover up" an error that he made. The Court stated that Lawyer "has not learned from his previous mistakes and has continued his deceptive practices." Making matters worse for Lawyer, in the instant case his actions "seriously affected a client." The Court cited Florida Bar v. Broome, 932 So.2d 1036 (Fla. 2006) in concluding that a 1-year suspension was appropriate. In Broome the lawyer avoided a harsher sanction only because of substantial mitigation; in the instant case, however, "no compelling mitigation exists. "That [Lawyer] engaged in only one act of client neglect and misrepresentation, and that he did not charge excessive fees, suggests only that his misconduct warrants something less than disbarment. See also Fla. Bar v. Glueck, 985 So.2d 1052 (Fla. 2008) (disbarring lawyer for, among other things, multiple acts of client neglect)."
Finding additional conflict of interest violation, Florida Supreme Court rejects recommended discipline and suspends lawyer. Florida Bar v. Brown, 978 So.2d 107 (Fla. 2008). Lawyer was charged with ethical violations arising from her representation of 2 persons in a criminal case. Spillman and Parks were in a car that was stopped by the police. Parks, who was driving, was charged with speeding and driving with a suspended license. A gun was found in the car's center console, and Spillman was charged with possession of a firearm by a convicted felon. (Parks also was a convicted felon, but apparently Lawyer did not know this.) Spillman and Parks visited Lawyer's office together and signed retainer agreements. Lawyer entered a notice of appearance for Parks, but arranged for another attorney to file a notice of appearance on Spillman's behalf. Lawyer, however, "actively represented Spillman, but failed to diligently represent him or to adequately communicate with him. Further, [Lawyer] failed to clearly communicate to the trial court and Spillman whether she represented Parks and Spillman or just Parks. Her actions toward Spillman were more often those of someone who did represent him rather than someone who did not. She accepted money from Spillman, appeared in court for him, and filed official pleadings suggesting she represented him. She never personally told Spillman that another lawyer was representing him." The referee found Lawyer guilty of violating Rules of Professional Conduct 4-1.3 (diligent representation), 4-1.4(a) (communication with client), and 4-8.4(c) (conduct involving misrepresentation). The Bar also charged Lawyer with a prohibited conflict of interest (Rule 4-1.7), but the referee concluded that the Bar did not prove the conflict allegation by clear and convincing evidence. The referee recommended that Lawyer be reprimanded. The Florida Supreme Court approved the findings regarding violations of Rule 4-1.3 and Rule 4-1.4(a). Turning to the conflict charge, the Court rejected the referee's not guilty finding. "The factual circumstances leading up to Spillman’s being charged with possession of firearm by a convicted felon establish that Spillman and Parks had interests that were directly adverse. Parks and Spillman were both in the car when it was stopped. The firearm was concealed in the center console between them. An obvious potential defense to the charge against Spillman would have been a showing that the firearm was in Parks’ possession, not Spillman’s." The Court continued: "Parks also had an interest in not being in possession of the firearm. Parks was also a convicted felon. Even if he had not been, he would have had an interest in not having the possession of the firearm attributed to him." The interests of the 2 clients were "directly adverse and [Lawyer]'s representation of both of them, to any extent whatsoever, including covering a hearing for a colleague, was improper." The Court further noted that the adverse interests "also made it impossible for [Lawyer] to ethically represent both Spillman and Parks because her professional judgment with regard to one or both of them was materially limited by the dual representation. She could not cast doubt on Spillman’s possession of the firearm without casting suspicion on Parks, and vice versa." The Court rejected the recommended discipline of a reprimand and instead suspended Lawyer for 90 days.
Florida Supreme Court rejects referee’s findings of mitigating factors and imposes disbarment rather than recommended suspension. Florida Bar v. Valentine-Miller, 974 So.2d 333 (Fla. 2008). The Florida Bar charged Lawyer with ethical violations including mishandling client trust funds and dishonesty. Lawyer admitted the allegations, but also introduced evidence that she had a drinking problem, abused painkillers, and suffered serious personal trauma during the time in question. The referee recommended that Lawyer be found guilty, and found several aggravating and mitigating factors. The referee recommended a 3-year suspension. The Bar petitioned for Supreme Court review, and the Court ordered Lawyer disbarred. The Court rejected the referee's findings of 2 mitigating factors: inexperience in the practice of law; and lack of a dishonest or selfish motive. Regarding inexperience, the Bar argued that Lawyer "stole money and abandoned her clients, and such misconduct cannot be mitigated by lack of experience." The Court agreed, noting that Lawyer had experience at both a private firm and the Public Defender's office. As to lack of dishonest or selfish motive, the Court noted that Lawyer admitted violating Rule 4-8.4(c) (prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). This admission "cannot be reconciled with the referee's finding that [Lawyer] lacked a dishonest or selfish motive." Regarding discipline, the Court observed that disbarment is the "presumptively appropriate sanction" for a lawyer who intentionally misappropriates trust funds. The mitigating factors did not overcome the presumption of disbarment. "While we sympathize with the problems respondent had in her personal life, and understand the problems associated with substance abuse and what it can do to a person’s life, we cannot condone respondent’s behavior. We have a responsibility to the citizens of this state. There is never a valid reason for taking client funds held in trust or for completely abandoning clients.”
In "disciplinary case of first impression," Florida Supreme Court rejects recommended discipline and suspends lawyer for misconduct related to adoption; Court declines to order fee forfeiture. Florida Bar v. Dove, 985 So.2d 1001 (Fla. 2008). The Florida Bar charged Lawyer with misconduct relating to Lawyer's involvement in a mishandled adoption. Lawyer was accused of making material misrepresentations to the court, including during an ex parte hearing. Among the allegations were that the petition for termination of parental rights "falsely asserted that both the biological mother and the biological father had surrendered their parental rights." The referee found that Lawyer's actions violated Rule 4-1.1 (competence), Rule 4-3.3(a)(1) (candor toward the tribunal – false statements), and Rule 4-3.3(d) (candor toward the tribunal – ex parte proceedings). The referee found substantial mitigation, including that Lawyer "was not trying to be dishonest." The referee recommended that Lawyer be publicly reprimanded, be placed on 2 years' probation, and be required to forfeit fees of more than $8,000 to the Florida Bar Foundation. Both the Bar and Lawyer sought review in the Florida Supreme Court: the Bar requested a 1-year suspension instead of a reprimand, and Lawyer challenged the fee forfeiture requirement. The Court agreed with the referee's findings as to guilt, and rejected both the referee's recommended discipline and the Bar's requested 1-year suspension as too lenient. The Court stated that "this is a disciplinary case of first impression. The Court has not previously faced the need to discipline a lawyer for such serious misconduct in the sensitive context of an adoption proceeding." The Court rejected the finding that Lawyer was not trying to be dishonest "because it is not supported by competent, substantial evidence." The Court concluded that, "[d]ue to severity of [Lawyer]’s misconduct and the vulnerabilities of the parties to the adoption," a 3-year suspension should be imposed. The Court did agree with Lawyer that fee forfeiture was not appropriate. "[T]he clear language of Rule Regulating the Florida Bar 3-5.1(h) only permits disgorgement to the Client Security Fund. The Florida Bar Foundation is not mentioned in the rule. In addition, rule 3-5.1(h) and disgorgement do not apply to this case. Although [Lawyer] provided inadequate service to her clients, the $8,388.84 was not a prohibited fee, an illegal fee, or an excessive fee as required by rule 3-5.1(h)." The Court also warned: "Lawyers who undertake representation in the vital areas of adoption, dependency, and delinquency and in other family law cases serve interests which have unexcelled importance in the law. We expressly advise lawyers that we applaud and appreciate their service in this representation but that the service must be performed in compliance with the Rules of Professional Conduct. If it is not, we will deal harshly with the violations."
Florida Supreme Court disbars rather than suspends lawyer for having what "was in essence a partnership" with nonlawyer for immigration practice. Florida Bar v. Glueck, 985 So.2d 1052 (Fla. 2008). Nonlawyer was the subject of a Florida Bar unlicensed practice of law ("UPL") investigation in 1998. She was working on immigration matters. The Supreme Court permanently enjoined Nonlawyer from UPL in Florida. She sold her business to others, who renamed the business Millennia Consulting Services. Nonlawyer continued to serve as an employee/manager for the business. Lawyer became involved with Millennia, establishing an office outside the Millennia suite in Aventura for work on labor and immigration matters. Prior to that, Lawyer had operated exclusively out of his Hollywood office. Lawyer, however, did not show his Hollywood office on his Aventura office letterhead. Lawyer "entered into a partnership or business relationship with [Nonlawyer], through which he provided legal services to clients of Millennia through his law office at the Aventura address." Lawyer "allowed [Nonlawyer] to be in control of Millennia's legal services and his law office's day-to-day operations at the Aventura location." The business relationship between Lawyer and Nonlawyer soured, with Lawyer terminating the relationship and a new lawyer found for affected clients. Allegedly eight clients were adversely affected by Lawyer's misconduct in their cases. The Florida Bar charged Lawyer with ethical violations The referee found Lawyer guilty of violating various rules and recommended that Lawyer be suspended for 3 years. The Bar sought Supreme Court review of the recommended discipline. The Court ordered Lawyer disbarred. Lawyer challenged the finding that he violated Rule 4-5.4(c) (partnership with nonlawyer that includes the practice of law), but the Court agreed with the referee. "Due to the sharing of at least one employee, space, and fees, the referee appropriately found, based on competent, substantial evidence, that [Lawyer]'s law office and Millennia blended together into one operation that was in essence a partnership."
Lawyer who is subject of disciplinary proceedings barred from further pro se filings in case by Florida Supreme Court. Florida Bar v. Thompson, 979 So.2d 917 (Fla. 2008). Lawyer represented himself in disciplinary proceedings. He made a number of filings directly with the Supreme Court, including "inappropriate and pornographic materials." The Court sanctioned Lawyer, instructing the Clerk of the Court "to reject for filing any future petitions, pleadings, motions, documents, or other filings submitted by [Lawyer], unless signed by a member in good standing of The Florida Bar other than himself." The Court described one of Lawyer's filings: "One of [Lawyer]'s recent filings contains what [Lawyer] refers to as a 'children’s picture book for adults' that rehashes his previous arguments in illustrated form which he states was necessary due to 'the Court’s inability to comprehend' his arguments. Between the text of the motion, [Lawyer] pasted images depicting swastikas, kangaroos in court, a reproduced dollar bill, cartoon squirrels, Paul Simon, Paul Newman, Ray Charles, a handprint with the word 'SLAP!' written under it, Bar Governor Benedict P. Kuehne, a baby, Ed Bradley, Jack Nicholson, Justice Clarence Thomas, Julius Caesar, monkeys, and a house of cards, and the motion concludes with a photograph of the cover of [Lawyer]'s book, Out of Harm's Way." NOTE: The Supreme Court subsequently permanently disbarred Lawyer. Florida Bar v. Thompson, 994 So.2d 306 (table).
FEES (INCLUDING ATTORNEYS’ LIENS) Florida Supreme Court construes statute providing for attorney's fees in contested workers' compensation cases. Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008). The Florida Supreme Court addressed a constitutional challenge to F.S. 440.34 (2003), which governs attorney's fees in workers' compensation cases. The First DCA held the statute constitutional. Murray v. Mariners Health/ACE USA, 946 So.2d 38 (Fla. 1st DCS 2006). On review the Supreme Court did not decide the constitutional issue, but instead based its decision on the "plain language" of the statute as construed using principles of statutory construction to resolve what the Court perceived as an ambiguity. The Court summarized its decision: "We hold, based upon the plain language of the statute, that when a claimant is entitled to recover attorney fees from a carrier or employer as provided by section 440.34(3)(a), (b), (c), or (d), the claimant is entitled to recover 'a reasonable attorney’s fee.' See § 440.34(3), Fla. Stat. (2003). Section 440.34(3), does not define 'reasonable attorney’s fee,' and an ambiguity results when subsection (1) and subsection (3) are read together. Accordingly, we have determined that reasonable attorney fees for claimants, when not otherwise defined in the workers’ compensation statute, are to be determined using the factors of rule 4-1.5(b) of the Rules Regulating the Florida Bar. See Lee Eng’g & Constr. Co. v. Fellows, 209 So.2d 454, 458 (Fla. 1968) (applying Canon 12 of the Canons of Professional Ethics, the predecessor to rule 4-1.5(b))." Because it decided the issue based on statutory construction rather than the constitutional question, the Court disapproved the First DCA's decision and also disapproved Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (1st DCA 2006), Wood v. Fla. Rock Industries, 929 So.2d 542 (Fla. 1st DCA 2006), granting motion for certification, 929 So.2d 545 (Fla. 1st DCA 2006), and Campbell v. Aramark, 933 So.2d 1255 (1st DCA 2006).
Florida Supreme Court rules that fees for appointed defense counsel in capital collateral proceedings may exceed statutory cap in appropriate cases. Mass v. Olive, 992 So.2d 196 (Fla. 2008). F.S. 27.7002 was amended in 2007 to limit fees paid to counsel appointed to represent death row inmates to the amount specified in F.S. 27.711. The statute also authorized removal from the list of lawyers eligible for appointment of any lawyer "who seeks compensation for services above the amounts provided in s. 27.711." Criminal defense lawyer Olive sought a determination that section 27.7002 violated the courts' inherent powers under article V of the Florida Constitution. The trial court granted summary judgment for Olive on this issue. Defendant Maas, the Executive Director of the Commission on Capital Cases, appealed. The First DCA certified the matter to the Florida Supreme Court as a question of great public importance. The Supreme Court affirmed. The circuit court construed the statutes "to permit the use of state funds for compensation above the statutory fee schedule in appropriate cases and to permit attorneys to request such compensation when justified by unusual or extraordinary circumstances. The circuit court noted that the provisions must be construed in this manner in order to preserve the constitutionality of section 27.7002." The high Court agreed. "In a long line of cases, we have consistently held that statutory limits for compensation of counsel may not constitutionally be applied in a manner that would curtail the trial court’s inherent authority to ensure adequate representation." The Court further stated: "We agree with the trial court that section 27.7002(5) must be construed as permitting compensation in excess of the statutory fee caps where a trial court exercises its inherent authority to grant such fees in light of extraordinary circumstances in a case. . . . Furthermore, we also agree with the trial court that section 27.7002(6) must be construed to prohibit removing an attorney from the registry list for seeking compensation above the statutory limit in cases involving extraordinary circumstances."
Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal. Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008). See discussion in “Law Firms” section.
Attorney's charging lien filed in suit that was later dismissed can attach to proceeds recovered by former client in related arbitration proceeding. Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v. Chernak, 991 So.2d 875 (Fla. 4th DCA 2008). Law Firm filed suit on behalf of Clients (the "original suit"). A conflict of interest later required Law Firm to withdraw, but before withdrawing Law Firm filed a notice of charging lien for fees and costs. Clients retained new counsel. Clients voluntarily dismissed the original suit. Clients then filed a new action (the "second suit") naming additional defendants but alleging the same material facts. Law Firm filed a notice of charging lien in the second suit. While the second suit was pending, Clients were named in an arbitration proceeding initiated by one of the defendants. The arbitration proceeding dealt with the issues raised in the 2 suits. A settlement was reached in the arbitration proceeding, and the award required Clients' new counsel to hold funds in its trust account to satisfy any outstanding liens. The second suit was dismissed by joint stipulation. Law Firm later filed a motion to enforce its charging lien in the original suit. Clients moved to strike the motion. The trial court granted the motion, "reason[ing] that 'the charging lien only applies if there are settlement proceeds' and 'there are no proceeds from the [original suit] . . . because the case got dismissed'." The Fourth DCA reversed. The lower court erred in ruling that Law Firm's lien could not be litigated in the original suit. "[I]f an attorney’s charging lien 'is an equitable right to have costs and fees due an attorney for services in the suit secured to him, Sinclair [Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom], 428 So.2d [1383 (Fla. 1983)] at 1384, it does not appear appropriate to seek enforcement of the lien in forums where the attorney has not directly participated. Moreover, the [Clients'] argument ignores the common law in this state that timely notice is the only requirement for perfecting a charging lien. See Sinclair, 428 So.2d at 1385. The lien cannot be pursued if it is not perfected. Perfection of a charging lien typically occurs before the outcome of the case is known. For a lien to be enforceable, an attorney must prove his or her services resulted in 'tangible fruits.' Whether the attorney’s services produced 'tangible fruits' is an issue of proof, but it is not an issue of subject matter jurisdiction." The court noted that, although Law Firm might not prevail in providing that its services contributed to settlement of the dispute, "that does not deny [Law Firm] access to litigate that issue in the forum where it directly represented the [Clients]."
Trial court exceeded its authority by granting charging lien and ordering client's assets frozen to pay attorneys' fees. Pineiro v. Pineiro, 988 So.2d 686 (Fla. 4th DCA 2008). In 2001 the trial court in a dissolution of marriage proceeding entered an order freezing certain of Former Wife's martial assets (i.e., stock options). In 2003 the court entered an order granting Former Wife's lawyers a charging lien. In 2004 the court determined the amount of the charging lien and gave "her former lawyers the right to payment from her marital assets." Former Wife disposed of the stock options despite the court's orders. The court found her in civil contempt of court for selling the options in violation of the earlier freeze and charging lien orders. The Fourth DCA reversed. "When the court first ordered the wife not to dispose of her GE stock options, it was not for the purpose of protecting her counsels’ attorneys’ fees. Indeed the court did not have the authority to freeze her assets in order to pay her own attorneys. Rinkor v. Brborich, 957 So.2d 661 (Fla. 3d DCA 2007); Levinson v. Levinson, 895 So.2d 432 (Fla.4th DCA 2004); Widom v. Widom, 679 So.2d 74 (Fla. 4th DCA 1996)."
Trial court erred in ordering that attorney's charging lien may be executed against former client's homestead property. Sass v. Sass, 988 So.2d 1135 (Fla. 4th DCA 2008). In a dissolution of marriage proceeding the trial court entered a final judgment adjudicating a charging lien filed by Former Wife's lawyer. The judgment stated that the lawyer "may file and execute this Final Judgment against the marital home," which apparently was Former Wife's homestead property. The Fourth DCA reversed. "Recently, our supreme court reiterated the preeminence of Florida’s homestead exemption. Chames v. DeMayo, 972 So.2d 850 (Fla. 2007). 'The homestead exemption has been enshrined in our state constitution for over a hundred years.' Id. at 853. 'The public policy furthered by a homestead exemption is to 'promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.'" McKean v. Warburton, 919 So.2d 341, 344 (Fla. 2005) (quoting Pub. Health Trust of Dade County v. Lopez, 531 So.2d 946, 948 (Fla. 1988)). For these long-held policy reasons, the trial court’s final judgment on the charging lien allowing execution against the marital home is reversed."
Law firm's charging lien enforceable against opposing party who had notice of lien but paid settlement without protecting firm's claim. Hall, Lamb & Hall, P.A. v. Sherlon Investments Corp., ___ So.2d ___ (Fla. 3d DCA, No. 3D07-2783, 10/29/2008), 2008 WL 4722972. Plaintiffs sued Former Client, which hired Law Firm to defend it and assert counterclaims. Law Firm was to receive a partly fixed and partly contingent fee. Former Client fired Law Firm shortly before a Plaintiff-Former Client mediation. Law Firm filed a notice of charging lien. Former Client hired Suspended Lawyer and settled with Plaintiff. Plaintiff paid the settlement proceeds to Suspended Lawyer. The case was dismissed with prejudice on November 6, 2006. Plaintiff did not notify Law Firm of the settlement or its payment of the settlement proceeds to Suspended Lawyer. On November 7, 2006, Lawyer Firm learned of the settlement from a third party and filed a motion to adjudicate its charging lien. The trial court ordered Former Client and Suspended Lawyer to pay the fee of more than $76,000. Law Firm could not collect and moved to adjudicate its charging lien against Plaintiff. The trial court denied the motion. The Third DCA reversed. Law Firm perfected its charging lien by timely notice to the parties. "Such perfected lien is 'chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future'" (quoting Hutchins v. Hutchins, 522 So.2d 547, 549 (Fla. 4th DCA 1988) (emphasis by Third DCA). Plaintiff had notice of Law Firm's lien and thus "had an affirmative duty to notify the law firm of the settlement and to protect the law firm's lien interest in the settlement proceeds" (citing Zaldivar v. Okeelanta Corp., 877 So.2d 927, 930 (Fla. 1st DCA 2004). "[A]lthough [Plaintiff] and the former client reached a settlement by the end of September 2006, [Plaintiff] failed to notify the law firm of the settlement in any way until November 2006 – when the parties obtained a dismissal of the action with prejudice from the trial court. Furthermore, [Plaintiff] took no other steps to protect the law firm’s interest. . . . Instead, [Plaintiff] paid the entire settlement to the former client (through [Suspended Lawyer]) without providing safeguards for the law firm’s lien interest. And regardless of [Plaintiff]’s intent, by doing so, [Plaintiff] committed a fraud upon the law firm." As a result Plaintiff, along with Former Client and Suspended Lawyer, "is jointly and severally liable for the law firm's fee as calculated in accordance with the settlement agreement.
Trial court's retention of jurisdiction over issue of attorney's fees also includes jurisdiction to adjudicate law firm's charging lien. Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158 (Fla. 5th DCA 2008). Law Firm represented Wife in a dissolution of marriage action. The retention agreement referenced the firm's charging lien on property or proceeds distributed to Wife. Husband and Wife entered into a marital settlement agreement that reserved the trial court's jurisdiction to determine attorney's fees and costs. The trial court entered a final judgment that included a reservation of jurisdiction regarding fees. On the day the judgment was entered Wife moved for an award of fees, costs, and suit money from Husband. Three months later Law Firm notified Wife that it was withdrawing and would file a charging lien for unpaid fees. The next day Law Firm filed a notice of charging lien. A day later Law Firm moved to withdraw from the case and to enforce and perfect its charging and retaining liens. Husband’s response asserted that Law Firm was not entitled to a charging lien because the trial court lacked jurisdiction, contending that Law Firm "failed to timely perfect its lien because it failed to provide a timely notice to its client, the Wife, within 30 days of entry of final judgment. The Husband's position was that if the final judgment of dissolution does not expressly reserve jurisdiction to enforce a charging lien, and the attorney has not filed a timely notice prior to the entry of the judgment, the court has no authority to impose such a lien." The trial "reluctantly" agreed that it had no jurisdiction to enforce the charging lien. The Fifth DCA reversed, although it noted that the "trial court's reluctance was well-founded." The appeals court discussed cases addressing the issue of jurisdiction to consider a charging lien after entry of final judgment, but found them distinguishable because "in not one of them did the final judgment retain jurisdiction in the circuit court to consider both entitlement to attorney's fees and the amount." The judgment in the instant case, however, did that. "As the court had fully retained jurisdiction over the issue of fees, it retained jurisdiction over the charging lien, as well." NOTE: The appellate court questioned the standing of Husband to object to Law Firm's charging lien, it declined to consider the standing issue because it was not raised by the parties.
Attorney's charging lien does not attach to money appropriated by Legislature on claims bill. Noel v. Sheldon J. Schlesinger, P.A., 984 So.2d 1265 (Fla. 4th DCA 2008). In a suit against the Florida Department of Health and Rehabilitative Services Plaintiffs collected the maximum authorized by statute. They then successfully pursued a claims bill in the Florida Legislature. The bill provided payment of no more than a specified amount of fees to Plaintiff’s Law Firm. Law Firm sought additional fees pursuant to its contingent fee contract. Law Firm "persuaded the circuit court to issue a charging lien against the appropriation for [Plaintiffs] in the claims bill." The Fourth DCA reversed, stating that "[t]he remedy of a charging lien may not be imposed against an appropriation of a claims bill." A claims bill appropriation is a act of legislative grace that was "separate and apart from the recovery in the lawsuit" and, consequently, "the circuit court was not authorized to impose a charging lien upon it."
Lawyer unsuccessful in attempt to set aside client's settlement and continue suit in client's name to pursue lawyer's fee award. Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So.2d 688 (Fla. 4th DCA 2008). Lawyer represented Client in a civil rights case against Sheriff's Office under a contingent fee contract. Client discharged Lawyer. Using another attorney in a worker’s compensation case, Client settled and released all of her claims against Sheriff's Office. Lawyer filed a motion to set aside the settlement and allow him to continue the civil rights action in Client's name in order to protect his fee claims against Sheriff’s Office. The trial court found that none of the attorneys involved in the case had attempted to defraud Lawyer of his fee. Accordingly, the court denied Lawyer's motions and granted the motion to dismiss filed by Sheriff's Office. The Fourth DCA affirmed. Lawyer had relied "solely on Mabry v. Knabb, 10 So.2d 330, 337 (Fla. 1942), for the following proposition: '[W]here the client makes a fraudulent or collusive settlement intended to deprive the attorney of his compensation or cost fees, the attorney will be permitted to proceed with the suit in the client’s name for the purpose of protecting his interests.'" Mabry was distinguishable because in Mabry there was a collusive settlement designed to deprive the lawyer of his fee. The trial court found that did not occur in the instant case. The court concluded by noting that Lawyer could still seek a quantum meruit fee from Client under Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982).
Lawyer's services need not have increased value to estate in order to be awarded fees in probate matter. Duncombe v. Adderly, 991 So.2d 1013 (Fla. 4th DCA 2008). Decedent’s daughter hired Lawyer in a probate matter. Lawyer successfully challenged probate of a will and appointment of certain persons as administrator. The probate court, however, denied the daughter's petition for attorney's fees "because 'there has been no increase in value to the estate, nor has it been demonstrated that the petitioner carried out the intent of the testator.'" The Fourth DCA reversed. F.S. 733.106(3) provides that "any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate." The probate court read the statute too narrowly. The appeals court evidently disagreed with the view that there must be an enhancement in value or an advancement of the testator’s intent. "Preventing the appointment of a personal representative named in the will is a basis for the award of attorney’s fees, Baumer v. Howard, 542 So.2d 400 (Fla. 1st DCA 1989), as is obtaining the removal of a representative, In re Estate of Eisenberg, 433 So.2d 542 (Fla. 4th DCA 1983)."
Law firm representing survivor in wrongful death action not entitled to share in contingent fee earned by personal representative's law firm. Wagner, Vaughn, McLaughlin & Brennan, P.A., v. Kennedy Law Group, 987 So.2d 741 (Fla. 2d DCA 2008). Parents were killed in an auto accident. They were survived by sons Gary, Larry, and Robert. Gary was appointed sole personal representative and, in that capacity, retained the KLG law firm. KLG negotiated a settlement for the full limits of the tortfeasor's insurance policy. These proceeds were divided equally among the brothers. At about the same time Larry retained the Wagner law firm ("WVMB") to represent him. WVMB informed KLG that Larry did not approve of the distribution apportionment. WVMB filed a petition to remove Gary as personal representative and return the settlement proceeds to the trust account so that Larry's objections could be heard. The probate court denied the petition. Larry cashed his settlement check without taking further action in the courts. KLG then made a demand on Parents' insurer for $2 million in uninsured motorist insurance coverage. On the morning of mediation Robert retained WVMB to represent him. The demand on the insurer was settled for $1.23 million. The court held a hearing on the issue of attorney's fees and "determined that [WVMB] was not entitled to a portion of the attorney's fee award because Larry and Robert did not have any competing claims with Gary." The Second DCA affirmed. F.S. 768.26 "'contemplates that one lawyer, selected by the personal representative, will pursue the tort claim for the benefit of the survivors who are entitled to recover damages.' In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000). However, when the survivors have a conflict of interest, a single attorney could not fairly represent their competing interests. Wiggins v. Estate of Wright, 850 So.2d 444, 449 (Fla. 2003). In those instances, attorney's fees from the awards to the estate should be apportioned as set forth by the Fourth District in In re Estate of Catapane. Wiggins, 850 So.2d at 447-48." The court rejected the arguments proffered by WVMB. Applicability of section 768.26 was not limited to cases where suit was filed, and there was no actual conflict of interest. "Larry and Robert may have believed that the settlement was a bit low and that they were entitled to a greater portion of the settlement proceeds, but they waived any objection to the settlement by accepting their equal shares."
Waiver of temporary attorney's fees in prenuptial agreement not enforceable in Florida, even if agreement governed by another state's law. McNamara v. McNamara, 988 So.2d 1255 (Fla. 5th DCA 2008). Wife and Husband entered into a prenuptial agreement providing that Wife waived her right to attorney's fees in the event of a divorce proceeding. The agreement also provided that it was governed by Georgia law. A divorce proceeding was filed in Florida. Wife disavowed the prenuptial agreement and sought an award of temporary attorney's fees. The trial court granted the award, ruling that "Georgia law applied to the prenuptial agreement, but that any waiver of temporary fees, albeit valid under Georgia law, was contrary to the public policy of the State of Florida and was, therefore, unenforceable." The Fifth DCA affirmed, noting that the waiver provision was against public policy in Florida. "[T]he Florida Supreme Court in Lashkajani v. Lashkajani, 911 So.2d 1154, 1157 (Fla. 2005), acknowledged that 'the evolution in Florida law approving prenuptial agreements concerning post-dissolution support has so far not extended to provisions waiving the right to recover pre-judgment support such as temporary alimony.' The [supreme] court added that over the more than thirty years since Belcher [v. Belcher, 271 So.2d 7 (Fla. 1972)], Florida courts have consistently rejected attempts to waive pre-judgment support."
Lawyers seeking fee awards are reminded to introduce evidence supporting reasonableness of fees for all lawyers and paralegals involved. DeMello v. Buckman, 991 So.2d 907 (Fla. 4th DCA 2008). Defendant appealed an order awarding attorney's fees to Plaintiff. Defendant’s evidence included unchallenged expert testimony. The appeals court noted that the expert testimony related to the reasonableness of only the trial counsel's hours and rates. "The expert witness offered no testimony regarding any of the other attorneys and paralegals who worked on the case. There is no expert testimony to support the award of attorney’s fees for work other than that performed by [trial counsel]. Accordingly, the attorney’s fee order is vacated and this case is remanded for entry of an order awarding only those attorney’s fees that were supported by the expert testimony."
Attorney's fee awards under Florida Civil Rights Act not limited to 25% of compensatory damages, but do count against $100,000 limit on recovery against state entities. Board of Trustees of Florida State University v. Esposito, 991 So.2d 924 (Fla. 1st DCA 2008). Plaintiff sued Florida State University under the Florida Civil Rights Act. The trial court awarded attorney's fees to Plaintiff. The court ruled that the fees counted against the limit on the "total limit of recovery" that applies to tort recoveries against the state and its subdivisions under F.S. 760.11(5) (2005), which adopts the $100,000 limit in F.S. 768.28(5). The trial court, however, did not apply the 25% statutory cap on attorney's set out in F.S. 768.28(8). The First DCA affirmed both rulings.
Relief under retainer agreement provision requiring arbitration of fee disputes must be pursued in separate lawsuit, not in underlying dissolution of marriage action. Klein-Brown v. Brown, 984 So.2d 669 (Fla. 4th DCA 2008). Lawyer’s retainer agreement with Client in a dissolution of marriage action provided that "[a]ny controversy or claim arising out of or relating to this retainer agreement or the breach thereof or performance or breach of performance by [Lawyer] in their representation of you shall be settled through binding arbitration." After entry of final judgment in the dissolution, Lawyer and Client had a fee dispute. Lawyer filed a motion in the dissolution case to compel arbitration to resolve the fee dispute. Lawyer mailed the motion and a notice of hearing to Client but did not serve Client. Client did not attend the hearing. The court entered an order compelling arbitration. Client then hired new counsel and moved to set aside the order. The trial court denied the motion. The Fourth DCA reversed and remanded for vacation of the order compelling arbitration. The trial court exceeded its authority. "In this case, no charging lien was filed and the issue of enforcement of the retainer agreement was not tried by consent. Therefore, [Lawyer]'s only avenue for redress was to file a separate lawsuit to enforce the retainer agreement and properly serve [Client] with process. See Milio v. Leinoff and Silvers, P.A., 668 So.2d 1108 (Fla. 3d DCA 1996)."
Claim for contingent fee denied because contract was signed by person without authority and minor. Charles v. Klemick and Gampel, P.A., 984 So.2d 563 (Fla. 2d DCA 2008). Award of attorney's fees to Law Firm was reversed on appeal. Law Firm's claim "was based on a contingency fee agreement signed by a person who had no authority to sign the agreement and by a minor, who lacks the capacity to enter into a contract." Law Firm did not make a claim for alternative relief, such as under a quantum meruit theory, and therefore was "foreclosed from an award of attorney's fees."
Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees. Milanick v. Osborne, ___ So.2d ___ (Fla. 5th DCA, No. 5D08-605, 12/24/2008), 2008 WL 5352093. See discussion in “Public Official Ethics and Public Records” section.
Proposed class action settlement rejected by trial court due in part to attorney’s fees provisions concerning counsel’s authority regarding appeals and “clear sailing.” Nelson v. Wakulla County, 985 So.2d 564 (Fla. 1st DCA 2008). Class Counsel represented plaintiffs in a class action suit against County attacking the constitutionality of an ordinance. The court entered an order denying approval of a proposed settlement agreement for reasons including attorney's fees provisions that (1) granted too much authority to Class Counsel regarding appeal and (2) included a “clear sailing” clause. The parties petitioned the First DCA for a writ of certiorari. The appellate court granted the petition in part. Class counsel's right to appeal underlying judgment. The proposed agreement reserved to Class Counsel the right to appeal any final judgment approving the class action settlement. This right to appeal was not limited to attorney's fees matters. This provision went too far. "By making attorneys’ fees and costs a determinative feature of the settlement, we agree with the trial court that the parties created an improper 'package deal.'" "Clear sailing" provision. A "clear sailing" provision is one in which the party responsible for paying the attorney's fees agrees not to contest the amount awarded by the court as long as it falls below an agreed-upon ceiling. See Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 520 n.1 (1st Cir. 1991). The proposed settlement agreement contained such a provision. The court concluded that "although clear sailing agreements have attracted considerable debate, they do not render a settlement agreement per se invalid. Instead, case law provides that where there is a clear sailing agreement, 'rather than merely rubber-stamping the request, the court should scrutinize it to ensure that the fees awarded are fair and reasonable.' Lubitz v. DaimlerChrysler Corp., 2006 WL 3780789 (N.J. Super. L. 2006) (citing Weinberger, 925 F.2d at 519). We, therefore, provide that, on remand, the trial court should have broad discretion to determine whether the fees requested in this case are fair and reasonable in order to protect the interests of the class members."
Failure to plead entitlement to costs does not act as waiver of litigant's right to file motion for costs at conclusion of case. First Protective Ins. Co. v. Featherston, 978 So.2d 881 (Fla. 2d DCA 2008) (en banc). Insurer prevailed in a declaratory judgment action and moved to tax costs, asserting an entitlement to costs under F.S. 57.041 (2005) and Fla.R.Civ.P. 1.525. Citing Stockman v. Downs, 573 So.2d 835 (Fla. 1991) and Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004), the trial court denied the motion because Insurer failed to plead entitlement to costs. The Second DCA reversed, concluding that the Stockman rationale regarding pleading entitlement to fees did not apply to costs and receding from Mook. The court explained that attorney's fees ordinarily are not recoverable, while costs are. "The availability of a recovery of costs is part of the warp and woof of litigation. Every party to litigation enters the litigation on notice that costs are at issue. Given this reality, it is unnecessary to require that litigants assert a claim for costs in the pleadings." (Footnote omitted.)
Attorney’s fees may be awarded based on motion filed by defendant within 30 days of voluntary dismissal of complaint. Stolper, LLC v. Jeffer, 971 So.2d 279 (Fla. 4th DCA 2008). Plaintiff voluntarily dismissed the suit before Defendant filed an answer, but after the answer was due. Defendant moved for attorney's fees within 30 days after the dismissal. The trial court denied the motion. The Fourth DCA reversed, reading Stockman v. Downs, 573 So.2d 835 (Fla. 1991), as holding that "the failure to set forth a claim for attorney’s fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver" (citing Green v. Sun Harbor Homeowners' Ass'n, 730 So.2d 1261, 1263 (Fla. 1998)). "In Green, however, the court stated that the failure to set forth a claim for attorney’s fees in a motion does not constitute a waiver. Id. The court stated: 'Until a rule is approved for cases that are dismissed before the filing of an answer, we require that a defendant’s claim for attorney’s fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived.'" Here, Defendant complied with Green by filing its motion for attorney's fees within 30 days after the voluntary dismissal.
Party's claim for attorney's fees is waived by failing to specifically plead it; demand in summary judgment motion is not sufficient. American Express Bank International v. Inverpan, S.A., 972 So.2d 269 (Fla. 3d DCA 2008). Plaintiffs sued Bank seeking information about some accounts. The complaint alleged that Plaintiffs retained a law firm and were obligated to pay that firm's fees and costs, but did not include a demand for fees. Plaintiffs later filed a motion for summary judgment containing a demand for attorney's fees. After summary judgment was granted, Plaintiffs moved for fees. Bank objected on grounds that included Plaintiffs' alleged "failure to plead sufficiently a request for fees." The court awarded fees to Plaintiffs. The Third DCA reversed. A claim for attorney's fees must be pled. Stockman v. Downs, 573 So.2d 835, 837-38 (Fla. 1991). Plaintiffs did not file a pleading requesting fees. The filing of a motion for summary judgment requesting a fee award of fees is not sufficient. "The request for such relief in a summary judgment motion does not satisfy Stockman. See Green v. Sun Harbor Homeowners' Ass'n, 730 So.2d 1261, 1263 (Fla. 1998) ('This Court's use of the phrase ‘must be pled’ is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a).')"
Intended third-party beneficiaries, who were not parties to lease, may not recover under lease's attorney fee provision. Civix Sunrise, GC, L.L.C. v. Sunrise Road Maintenance Ass'n, Inc., 997 So.2d 433 (Fla. 2d DCA 2008). LLC bought property that was the subject of a lease requiring the lessee to operate a golf course and to sell a certain number of golf club memberships to residents of adjoining property. LLC ceased operating the golf course and planned to develop the property. Affected homeowners' and condominium associations (Associations) sued LLC to prevent it from carrying out its plans. Associations prevailed and sought attorney's fees under paragraph 20 of the lease, which stated: "Any party failing to comply with the terms of this lease agreement shall pay all expenses, including a reasonable attorneys' fee, incurred by the other party hereto as a result of such failure." The trial court awarded fees "because the [Associations] prevailed on their claim under the lease as intended third-party beneficiaries." The Second DCA reversed. "To be enforceable, an agreement providing for the award of attorney's fees must be clear and specific. Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So.2d 2d 1114, 1118 (Fla. 4th DCA 1997). An agreement for one party to pay another party's attorney's fees must unambiguously state that intention. Id. Read in context, the term 'party' in paragraph 20 of the lease unambiguously refers only to the two signatory parties to the lease. Because the [Associations] were not signatory parties to the lease, they are not entitled to recover their attorney's fees under paragraph 20."
Trial court lacked authority to award attorney’s fees to non-party who hired lawyer to respond to subpoena duces tecum. Attorney’s Title Ins. Fund, Inc. v. Landa-Posada, 984 So.2d 641 (Fla. 3d DCA 2008). The Attorney’s Title Insurance Fund (“the Fund”) sued an attorney-agents alleging a fraudulent scheme that led to the misappropriation of millions of dollars. The Fund served a subpoena duces tecum on another of its attorney-agents (“Non-party”) who was not a party to the suit. Non-party hired a lawyer to review the documents and prepare a privilege log. At her deposition, Non-party invoked the Fifth Amendment in response to each substantive question. Non-party sought reimbursement for her outside counsel’s fees. The court ordered the Fund to pay the fees of Non-party’s lawyer. The Third DCA reversed because the trial court had no authority to enter the fee award. Attorney’s fees may be awarded only pursuant to contract or statute, and cannot be awarded as a matter of equity. Unless provided for by contract or statute, “costs” do not include attorney’s fees.
Court-appointed lawyer who defended 3 separate charges filed under one case number is only entitled to fee for one charge. Justice Administrative Commission v. King, 988 So.2d 160 (Fla. 4th DCA 2008). Lawyer was appointed to represent Defendant, who was charged with 3 separate offenses arising out of 3 separate transactions. The charges were contained in one information and filed under one case number. Defendant pleaded guilty plea to 2 charges and the third was nolle prossed. Lawyer filed a motion asking the trial judge to amend the order of appointment to "to clarify that the three charges were separate incidents and should be treated as separate cases for processing with the JAC" (Judicial Administrative Commission). The court granted the order. Lawyer filed her bill with the JAC, seeking a fee of $2000 per charge ($6000 total). The JAC moved to vacate the trial court's order amending Lawyer's appointment, "arguing that this was a single case as to which only a single flat fee could be awarded." The trial court disagreed and entered an order approving payment of $6000 to Lawyer. The Fourth DCA granted the JAC’s petitioned for writ of certiorari. F.S. 27.5034 controls, and "[u]nder the plain terms of the statute, the attorney is entitled to only one flat fee per 'case' no matter how many 'offenses' that case may encompass. Thus, where a single information or indictment is brought and a single case number assigned, a single 'case' exists within the plain meaning of the language used." The statute "prohibits fee 'stacking' and authorizes compensation only for the most serious offense where a defendant is charged with multiple offenses in a single case."
Justice Administrative Commission may not be ordered to pay court-appointed counsel for indigent, non-parent legal custodian in dependency proceeding. Justice Administrative Commission v. Peterson, 989 So.2d 663 (Fla. 2d DCA 2008). The Florida Justice Administrative Commission ("JAC") was ordered to pay attorney's fees and costs to the court-appointed counsel for an indigent, nonparent legal custodian in a juvenile dependency proceeding. The grandfather was the child's legal custodian. The Second DCA quashed the order. The grandfather had neither a constitutional nor statutory (see F.S. 39.013(9)(a) (2006)) right to appointed counsel. The trial court departed from the essential requirements of law by ordering the JAC to pay for the lawyer's services.
Fifth DCA refuses to enforce attorney's fee provision in lease agreement because it "clearly makes no sense." Islander Beach Club Condominium v. Skylark Sports, L.L.C., 975 So.2d 1208 (Fla. 5th DCA 2008). Lessor appealed a court award of attorney's fees to Tenant, arguing that the fee provision in the lease was "not enforceable because it is 'nonsensical'." The Fifth DCA agreed and reversed. The provision in question stated: "ATTORNEY’S FEES: In the event that either party incurs legal fees or costs in the enforcement of this Lease or any provision hereof, whether suit is filed or not, shall be entitled to recover and to receive payment of reasonable attorneys’ and costs incurred by the other party." The appeals court observed: "The provision as written clearly makes no sense: It provides that if either party incurs attorney’s fees or costs when trying to enforce the lease, some unnamed entity (presumably, at least, a party) is entitled to recover the fees and costs that were incurred by the other party rather than those incurred by that entity. Thus, it does not reflect any clear intention of the parties as to whom, when, and how attorney’s fees or costs should be allowed."
Cases concerning the “prevailing party” standard included: Trial court properly awarded defendant prevailing party attorney's fees after plaintiff voluntarily dismissed suit with prejudice and refiled. Bank of New York v. Williams, 979 So.2d 347 (Fla. 1st DCA 2008). Plaintiff Bank filed a mortgage foreclosure suit against Defendant. The complaint and amended complaint were dismissed without prejudice. When Bank did not file a second amended complaint, the trial court dismissed the action with prejudice. Rather than appealing, Bank chose to file a new foreclosure action against Defendant. After the dismissal with prejudice of the original suit Defendant moved for prevailing party attorney's fees under F.S. 57.105(7). The trial court awarded fees to Defendant. Bank appealed, contending that the trial court erred because Defendant was not a prevailing party. Bank argued that "the same factual and legal issues raised in the dismissed action are also the subject of the new litigation" and so Defendant could not be the prevailing party under the statute. The First DCA affirmed. The refiling of the same suit after a voluntary dismissal does not alter a party's right to recover prevailing party attorney's fees incurred in defending the first suit. State ex rel. Marsh v. Doran, 958 So.2d 1082 (Fla. 1st DCA 2007). "Here, since the complaint was dismissed with prejudice, it is clear that [Defendant] was the prevailing party."
"Significant party" test for awarding prevailing party attorney's fees cannot be modified by contract. Port-A-Weld, Inc. v. Padula & Wadsworth Construction, Inc., 984 So.2d 564 (Fla. 4th DCA 2008). Contractor and Subcontractor were in litigation. The attorney's fee provision in their contract stated in part: "For the purposes of this Agreement, a party shall not be considered as a 'prevailing party' if its recovery shall be less than 75% of its claim amount." The trial court found primarily in favor of Subcontractor, but Subcontractor's recovery fell short of the 75% threshold specified in the contract. Subcontractor argued "that the 75% prevailing party threshold in the contract was against public policy under" F.S. 57.105. The trial disagreed, ruled that Contractor was the prevailing party, and entered an attorney's fee award for Contractor. The Fourth DCA stated that it "must decide, as a matter of first impression, whether the 'significant issue' test for determining prevailing party attorney’s fees can be modified by contract." The court concluded that the Florida Supreme Court's "significant issue" test for prevailing party fees, announced in Moritz v. Hoyt Enterprises., Inc., 604 So.2d 807, 810 (Fla. 1992) cannot be contractually modified. "At worst, [Subcontractor] is the 60% winner (but more than 80% considering the outcome of the counterclaim). In our view, failing to recognize [Subcontractor]’s entitlement to fees and costs as the prevailing party violates the mutuality principle of section 57.105(7) and pre-existing public policy as articulated in P & C Thompson Bros. [v. Rowe, 433 So.2d 1388 (Fla. 5th DCA 1983).]" (Footnote omitted.)
Antenuptial agreement may provide for "prevailing party" fees if agreement is enforced or challenged, but may not waive right to pre-dissolution fees. Lord v. Lord, 993 So.2d 562 (Fla. 4th DCA 2008). An antenuptial agreement contained 2 attorney's fee provisions: (1) the parties would pay their own fees in the event of dissolution of marriage proceedings; and (2) the prevailing party would be entitled to fees in the event of action to enforce or challenge the agreement. Shortly after the wedding Wife filed for dissolution. Husband's motion for temporary attorney's fees was granted. On appeal Wife argued that both attorney's fee provisions were enforceable under Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005). The Fourth DCA disagreed and affirmed. In Lashkajani, the Supreme Court stated that "prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable.” Lashkajani, however, left intact "Florida’s long-standing policy against enforcing waivers of pre-dissolution support remains intact." Consequently, the provision of the antenuptial agreement purporting to require each party to pay his or her own attorney's fees in the event of dissolution proceedings "cannot be enforced because it violates Florida’s long-standing policy against waiver of pre-dissolution support. See Belcher v. Belcher, 271 So.2d 7 (Fla. 1972)."
Districts split over whether party that settled pursuant to offer of judgment can be "prevailing party" for purposes of attorney's fee award under Magnuson-Moss warranty Act. The Second and Fourth Districts reached different conclusions regarding whether a party that settles pursuant to an offer of judgment can be a “prevailing party” for purposes of a fee award under the federal Magnuson-Moss Warranty Act (15 U.S.C. sec. 2301-2312). Compare Dufresne v. DaimlerChrysler Corp., 975 So.2d 555 (Fla. 2d DCA 2008) (settlement was "functional equivalent of a consent decree" and plaintiff could claim entitlement to fees under Act) and Martin v. DaimerChrysler Corp., 983 So.2d 620 (Fla. 3d DCA 2008) (agreeing with Dufresne) with Mady v. DaimlerChrysler Corp., 976 So.2d 1212 (Fla. 4th DCA 2008) (party that accepted settlement proposal not entitled to prevailing party fee award). The Mady court certified conflict with Dufresne.
In family law case "prevailing party" standard for fee awards applies only to actions seeking to enforce, but not modify, settlement agreement. Harrison v. Gattozzi, 992 So.2d 865 (Fla. 5th DCA 2008). In appealing an order in an action to modify a final judgment of dissolution of marriage, the mother argued that the court erred by awarding attorney's fees to the father. The Fifth DCA dismissed the appeal as premature because it was not clear that the lower court determined that the father was entitled to fees and did not set an amount of fees. The appeals court also provided instruction regarding the standard to be used in determining fees. "[W]e note that section 61.16, Florida Statutes (2006), establishing an entitlement to attorney's fees based on financial need and the ability to pay, is the applicable standard. While the father argues that the prevailing party standard should be utilized under the terms of the parties' marital settlement agreement, that provision is applicable only to actions to enforce the marital settlement agreement. Here, the father was seeking to modify the agreement, not enforce it. Accordingly, the general standard for attorney's fees in family law cases applies. See Rosen v. Rosen, 696 So.2d 697 (Fla. 1997)."
Insurance cases involving fee issues included: Florida Supreme Court rules that assignee, but not subrogee, is entitled to attorney's fees under F.S. 627.428 for prevailing in coverage dispute against principal's insurer. Continental Casualty Co. v. Ryan Incorporated Eastern, 974 So.2d 368 (Fla. 2008). Exercising its conflict jurisdiction, the Florida Supreme Court addressed whether a surety that pays money on behalf of its principal and is equitably subrogated to rights the principal has against its own insurer may recover attorney’s fees under F.S. 627.428 (2006) if it prevails in a coverage dispute against the principal’s insurer. The Court concluded that "a surety that has no written assignment from the insured and is not a named or omnibus insured or named beneficiary under the policy is not entitled to attorney’s fees under section 627.428." The Court distinguished the concepts of assignment and subrogation. "Although the surety may stand in the shoes of the principal, the principal does not lose its status as an insured under the policy. . . . Because the principal retains its rights under the policy, which includes the statutory right to claim attorney’s fees, the surety does not acquire the principal’s status as one of the designated entities entitled to attorney’s fees under the statute. This prevents the insurer from being subject to a claim for attorney’s fees from both the principal (insured) and the surety (subrogee) when, as in this case, both litigate the same coverage issue. On the other hand, an assignment transfers all of the insured’s rights to a claim under the policy, including its status as an insured under the policy. Thus, an assignee is entitled to an award of fees under section 627.428."
After an insurer-insured dispute, insurer ordered to pay insured's attorney's fees although dispute was settled without trial. Jenkins v. USF&G Specialty Ins. Co., 982 So.2d 15 (Fla. 5th DCA 2008). Insureds made a policy claim for hurricane damage. Insurer asserted that the extent of the damage was about $715; Insureds sought considerably more. The policy provided that either party "may . . . demand an appraisal of the loss." The parties participated in an appraisal process in which the loss was fixed at a little over $9000. After Insurer paid, Insureds moved for attorney's fees under F.S. 627.428 (2006). Insureds argued that the payment constituted a confession of judgment entitling them to fees under the statute. Insurer argued that Insureds were not entitled to fees because the dispute was resolved through appraisal rather than litigation. The trial court denied the motion for fees. The Fifth DCA reversed. The statute’s purpose is to discourage insurers from contesting valid claims. "What is clear is that there was a substantial discrepancy between [Insurer]'s initial estimate of the damages to the [Insureds'] property ($715.60) and the final appraisal value ($9,084.29). It appears that there was a bona fide dispute between the parties as to the amount of property damage and that the [Insureds] complied with the policy prior to filing their lawsuit. Further, the [Insureds] did not 'race to the courthouse' to file a complaint against [Insurer], as they waited nearly six months after [Insurer]'s initial assessment to file their complaint. [Insurer]'s payment to the [Insureds] acted as a confession of judgment, such that the [Insureds] were entitled to attorney's fees under section 627.428, Florida Statutes." The court noted that Insureds would not have been entitled to fees had the appraisal process been mandatory rather than permissive.
Third DCA affirms denial of attorney's fees incurred spent litigating amount of fees to be awarded in insurance litigation. Oquendo v. Citizens Property Ins. Corp., 998 So.2d 636 (Fla. 3d DCA 2008). Insureds successfully litigated against Insurer in a dispute over a homeowners policy. Insured sought an award of attorney's fees pursuant to F.S. 627.428. "The trial court awarded attorney’s fees for time reasonably expended in the trial phase of the litigation, and also made an award for the time expended on the issue of entitlement. The trial court denied 'fees for fees,' that is, attorney’s fees for preparing for, and participating in, the evidentiary hearing to set the amount of attorney’s fees." The Third DCA affirmed, relying on Lugassy v. Independent Fire Ins. Co., 636 So.2d 1332 (Fla. 1994), which in turn cited State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993). Insureds attempted to distinguish Palma on the ground that their retainer agreement obligated them to pay their lawyer for the time spent litigating the amount of attorney's fees. The appeals court rejected Insureds' argument. "Since Palma is based both on (a) statutory interpretation, and (b) the proposition that litigating the amount of fees inures solely to the attorney’s benefit, id., the fact that the retainer agreement in this case has a 'fees for fees' provision makes no difference." Both the Fourth DCA and Fifth DCA rejected the argument made by Insureds. See Mediplex Constr. of Fla., Inc. v. Schaub, 856 So.2d 13, 14-15 (Fla. 4th DCA 2003); Paladyne Corp. v. Weindruch, 687 So.2d 630, 634 (Fla. 5th DCA 2004); Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720, 724 (Fla. 5th DCA 1999).
Cases applying F.S. 57.105 included: F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic." Yang Enterprises, Inc. v. Georgalis, 988 So.2d 1180 (Fla. 1st DCA 2008). Lawyer represented Movants in litigation that began in November 2001. Movants' opponent was represented by the "B&C" law firm. One of B&C's attorney's, Palma, had represented Movants on estate planning matters from 1999 until June 2001. In 2007 Movants filed a motion to disqualify B&C and its lawyers who were working on the litigation (Palma was not involved in the litigation). Movants asserted that they were current clients of B&C and had been since 1999, and argued that disqualification of B&C was therefore warranted under Florida Rules of Professional Conduct 4-1.7 (current client conflicts) and 4-1.10 (imputed disqualification). The trial court denied disqualification, finding that Movants were former clients of B&C, rather than current clients. The court's ruling, however, was based not on Movants status as current or former clients but on the court’s ruling that Movants had waived any claim regarding a purported conflict of interest. Movants petitioned the First DCA for a writ of certiorari. Not only did the appellate court deny the petition, it imposed attorney’s fees sanctions against Movants and Lawyer under F.S. 57.105(1) (2007). The court characterized the disqualification motion as "a litigation tactic." Movants' "assertion that they were current clients was baseless and not supported by the material facts or applicable law. Additionally, based on the undisputed facts, Petitioners had no legal cause to seek disqualification as former clients. See rule 4-1.9, Fla.R.Prof.Conduct; Morse v. Clark, 890 So.2d 496 (Fla. 5th DCA 2004)." B&C had done no work on Movants' estate plan since 2001. Movants' argument regarding current client status was based primarily on 2 cover letters from a B&C paralegal in 2004 and a paralegal's bill for minor changes to their estate file in 2007. The court concluded that "[n]one of these acts indicated a continuing legal representation, but rather they were ministerial tasks performed to update the completed estate planning documents. This ministerial work does not meet the definition of the 'continuous representation rule.' See Hampton v. Payne, 600 So.2d 1144, 1146 (Fla. 3d DCA 1992)." Additionally, the trial court correctly ruled that Movants waived any conflict by waiting 5 years after the litigation began to seek B&C's disqualification. The court imposed fees against Movants and Lawyer in equal parts. Movants' claim that they did not know that their opponent had been represented by B&C since 2001 was "unworthy of credence." The court also concluded that Lawyer's factual assertions were not credible. "It is not enough for counsel to assert that he 'vetted' his clients’ representation of the facts. To avoid liability, counsel must make an objectively reasonable investigation of the purported facts supporting a claim." Such an investigation would have made it "inescapable" that Lawyer would have known.
F.S. 57.105 fees imposed against lawyer who convinced court to enter judgment against UM insurer in excess of policy limits; parties may stipulate that entire award will be entered against lawyer. Nationwide Mutual Fire Ins. Co. v. Voigt, 971 So.2d 239 (Fla. 2d DCA 2008) (on rehearing). Lawyer represented Insured in a UM suit against Insurer. The jury rendered a verdict for more than $440,000. Although policy limits were $50,000, Lawyer "convinced the trial court to enter a judgment for the entire amount of the jury's verdict without any allegation in the pleadings, much less a factual determination, that [Insurer] had committed bad faith." On appeal, the Second DCA reversed and remanded for entry of a judgment in line with policy limits. Insurer also sought fees against Insured and Lawyer pursuant to F.S. 57.105. The appeals court granted the award, noting that "longstanding, well-established law" provided that "a judgment entered against an insurance carrier for benefits provided by its policy must be limited to the policy limits." (Bad faith was not alleged.) "We conclude that [Lawyer] knew or should have known that his proposed final judgment was not supported by existing law when he presented it for entry to the trial court, and his defense of the amount of the final judgment in this appeal was without merit." In a footnote the court indicated that, despite the statute's language, the entire amount of the fee award could be entered against Lawyer (rather than Lawyer and Insured jointly) based on the parties’ stipulation.
Trial court erred by not awarding F.S. 57.105 attorney's fees against both a party and her lawyer. Danziger v. Alternative Legal, Inc., 987 So.2d 694 (Fla. 4th DCA 2008). Represented by Lawyer, Plaintiff sued Defendant over a real estate dispute. The court entered summary judgment for Defendant and awarded attorney's fees against Plaintiff under F.S. 57.105. The fee award was entered only against Plaintiff rather than both Plaintiff and Lawyer. The Fourth DCA reversed, concluding that the fee award should be against both Plaintiff and Lawyer. Both Plaintiff and Lawyer "knew or should have known that their claims were not supported by material facts." Furthermore, the trial court found that "the evidence does not support that there was a good faith attempt by Plaintiff to create new law." Consequently, the appeals court held that "the trial court erred in not awarding attorney’s fees 'to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney' pursuant to section 57.105(1), Florida Statutes."
Cases regarding application of Fla.R.Civ.P. 1.525 included: Florida Supreme Court resolves conflict among Districts regarding construction of pre-2006 version of Fla.R.Civ.P. 1.525 (attorney's fee motions). Barco v. School Board of Pinellas County, 975 So.2d 1116 (Fla. 2008). The Florida Supreme Court resolved a conflict among Districts regarding application of the pre-2006 version of Fla.R.Civ.P. 1.525 (time for filing motion for attorney’s fees). The Court explored the history and purpose behind the rule before concluding: "[T]he prior version of rule 1.525 in effect in 2004 was not intended to create a limited thirty-day window for service of a motion for attorneys’ fees or costs or both. The rule in effect in 2004, just like the rule amended effective 2006, requires only that the motion be served no later than thirty days following the filing of the judgment." In a footnote, the Court added that its decision "does not alter the pleading requirements for claims for attorneys' fees that have been established by prior case law. See Stockman [v. Downs], 573 So.2d [835] at 837 [(Fla. 1991)]."
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., 978 So.2d 811 (Fla. 2d DCA 2008) (on rehearing). 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 fees. The trial court awarded fees to Plaintiff. The Second DCA reversed, 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)."
Cases involving fees in connection with offers of judgment included: Florida Supreme Court rules that motion for attorney's fees made under offer of judgment statute may be filed in trial court before judgment is entered. Frosti v. Creel, 979 So.2d 912 (Fla. 2008). Resolving a conflict among Districts, the Florida Supreme Court ruled that a motion for attorney's fees made under the offer of judgment statute may be filed in the trial court before judgment is entered. The Court stated: "Neither the rule [Fla.R.Civ.P. 1.442] nor the statute [F.S. 768.79] states that a proposal for settlement may not be filed prior to the filing of a judgment or unambiguously defines when a proposal for settlement should be filed. Any grievance with the timing of the filing of a proposal for settlement can be addressed by filing a motion to strike, and the proper remedy where a court finds that a proposal is filed unnecessarily is to strike the proposal from the record, with leave to refile the proposal if and when it becomes necessary to enforce an entitlement to attorney fees and costs."
Court must consider more than criteria specifically listed in offer of judgment rule when awarding attorney's fees. Liggett Group, Inc. v. Davis, 975 So.2d 1281 (Fla. 4th DCA 2008). A trial court awarded attorney's fees to Plaintiffs after Defendant rejected Plaintiffs' proposal for settlement. Defendant appealed, arguing that the award was unreasonable because "the court erred in failing to consider 'all' relevant criteria in determining the fee award." The Fourth DCA reversed on this point. Fla.R.Civ.P. 1.442(h)(2), regarding reasonableness of a fee award under F.S. 768.79, provides: "When determining the reasonableness of the amount of an award of attorneys’ fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors . . ." [Emphasis supplied by court.] The trial court erred in reading Sarkis v. Allstate Ins. Co., 863 So.2d 210 (Fla. 2003), as limiting the criteria to be considered in awarding attorney's fees under the statute to those listed in rule 1.442. The appeals court stated: "We do not find Sarkis to be as restrictive. First, the rule itself contemplates 'other relevant criteria.' And, our supreme court acknowledged that a reasonable hourly rate and reasonable number of hours is to be considered, criteria not listed in rule 1.442. We read Sarkis to hold that a contingency risk multiplier is not applicable to an award of fees under 768.79, and not to eliminate consideration of 'other relevant criteria.'"
Offer of judgment statute and rule permit award of attorney's fees even if underlying contract does not contain attorney's fees provision. DuPont Builders, Inc. v. Baker, 987 So.2d 146 (Fla. 2d DCA 2008). Plaintiff sued Defendants over a construction contract. Plaintiff rejected proposals for settlement served by Defendants. Defendants prevailed at trial. Two defendants moved for attorney's fees pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. The trial court granted the motion for the individual defendant, but denied it as to the corporate defendant because "the underlying construction contract [between Plaintiff and the corporate defendant] did not contain a provision for attorney's fees." The Second DCA reversed, finding "no authority supporting the trial court’s conclusion that an award of attorney’s fees pursuant to section 768.79 and rule 1.442 may not be had if the underlying contract fails to contain a provision for attorney’s fees. To the contrary, we conclude that section 768.79 creates an independent, substantive, and statutory basis for the award of attorney’s fees when the requirements of the statute have been met."
No exception to offer of judgment apportionment requirement when partnership is involved. Brower-Eger v. Noon, 994 So.2d 1239 (Fla. 4th DCA 2008). A partnership and its 2 partners sued Defendant. Defendant made a demand to the 3 Plaintiffs to settle for $10,000. Plaintiffs rejected the offer. A net judgment later was entered for Defendant for almost $14,000. Defendant's motion for attorney's fees was granted. One of the Plaintiffs appealed, contending that the offer was defective "because it did not allocate the demand among the three plaintiffs." Defendant responded with the argument that "requiring apportionment of a demand among partners undermines the joint and several liability of partners statutorily imposed by section 620.8306(1), Florida Statutes (2005)." The Fourth DCA rejected the Defendant's "novel" argument and held that the demand was "fatally flawed." Fla.R.Civ.P. 1.442(c)(3) "provides that '[a] proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.'"
Apportionment requirement of offer of judgment statute and rule applies only to current, not former, parties to litigation. Carey-All Transport, Inc. v. Newby, 989 So.2d 1201 (Fla. 2d DCA 2008). Corporation and Former Employee were defendants in a suit. Corporation was vicariously liable for Former Employee's actions. In 2006 Plaintiff voluntarily dismissed Former Employee from the suit. In 2007 Corporation served on Plaintiff a proposal for settlement, which Plaintiff did not accept. At trial Plaintiff recovered a net judgment that was at least 25% less than Corporation's proposal for settlement. Corporation moved for attorney's fees and costs under the offer of judgment statute, F.S. 768.79. Plaintiff argued that Corporation's proposal was defective under Fla.R.Civ.P. 1.442(c)(3). Plaintiff argued that the proposal required Plaintiff to sign a general release whose scope included Former Employee, and that as a result this was a "joint proposal" under the rule that failed to apportion the amounts attributable to each defendant. The trial court agreed. The Second DCA reversed, concluding that it was not a joint proposal for settlement. "[I]n this case [Former Employee] was not a 'party' to the litigation when the settlement proposal was served because he had been dismissed from the lawsuit. Even after strictly constructing rule 1.442, as we are required to do because the rule and the offer of judgment statute are in derogation of common law, Willis Shaw Express, Inc. [v. Hilyer Sod, Inc.], 849 So. 2d [276 (Fla. 2003)] at 278, we cannot conclude that an entity or individual who has been dismissed from a lawsuit is a 'party' for purposes of rule 1.442 and section 768.79." The court noted that "[l]ogically, an offer cannot be 'joint' where the only party defendant in the lawsuit is the one making the offer."
Settlement proposal to multiple plaintiffs invalid under offer of judgment statute unless each plaintiff could independently accept proposal. Attorneys' Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008). Defendant, a title insurer, was sued by 2 Plaintiffs. Defendant served a proposal for settlement on Plaintiffs pursuant to F.S. 768.79 (2004). The offer proposed payment of a specified amount to each plaintiff and stated that the offer "can only be accepted if both [Plaintiffs] accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement." Plaintiffs did not accept the offer. After trial and judgment in its favor, Defendant sought fees and costs against Plaintiffs based on the unaccepted proposal. The trial court denied the motion, concluding that the settlement proposal was invalid because, although Defendant apportioned the amounts offered to each of the Plaintiffs and stated the conditions, “neither party was able to independently evaluate or independently accept the offer as the offer required the acceptance of both parties.” The Second DCA affirmed. "[W]e conclude that the trial court correctly determined that the proposal for settlement by [Defendant] is invalid and unenforceable for the purpose of imposing fees against [Plaintiffs]. Although the proposal specifies the amounts to be individually paid to [each plaintiff], it is invalid because it is conditioned upon both of them accepting the amounts offered and specifies that neither of them may independently accept the amount offered. By so conditioning the proposal, neither [one plaintiff] nor [the other plaintiff] could independently settle his or her respective claim by accepting the proposal. If one wished to accept but the other elected not to accept, the acceptance would not be effective."
INEFFECTIVE ASSISTANCE AND RIGHT TO COUNSEL Allegation of wrong advice by trial counsel about effect of plea on sentence for separate, already-committed crime is cognizable an ineffective assistance claim, per Florida Supreme Court. Ey v. State, 982 So.2d 618 (Fla. 2008). Addressing a question left open in State v. Dickey, 928 So.2d 1193 (Fla. 2006), the Florida Supreme Court considered "whether, when a defendant has committed two separate crimes and informs his attorney about both of them, the attorney's erroneous advice that his plea in one case could not be used to enhance his sentence in the other constitutes ineffective assistance of counsel." The Court distinguished Dickey on the basis that, unlike the instant case, the defendant in Dickey had not committed another crime at the time the erroneous advice was given. The Court stated: "[W]e hold that a claim that counsel erroneously advised a defendant about the effect of his plea on the subsequent sentence imposed in another case for a crime committed before the plea was entered is a cognizable claim of ineffective assistance of counsel." The Court set out the pleading requirements for such a claim and held it "must be filed within two years after the conviction based on the plea the defendant is attacking becomes final."
Resolving conflict among Districts, Florida Supreme Court rules that evidentiary hearing may be required for ineffective assistance claim based on counsel's advice regarding plea offer. Morgan v. State, 991 So.2d 835 (Fla. 2008). Convicted Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel was ineffective. Defendant asserted that counsel told him that they could win at trial and urged him to reject a plea offer. He rejected the offer. He was convicted and received a harsher sentence than had been offered. The Fourth DCA affirmed the postconviction court’s summary denial. Morgan v. State, 941 So.2d 1198 (Fla. 4th DCA 2006). The appellate court also certified conflict with the Third DCA "on the issue of whether a defendant is entitled to an evidentiary hearing when claiming ineffective assistance of counsel based on trial counsel advice to reject a plea offer because counsel believed the defendant could win or do better going to trial." Although the Supreme Court approved the result reached in Morgan, it reaffirmed that an ineffective assistance of counsel may be based on counsel's advice to reject a plea offer. In order to prevail, a defendant "must allege and prove that (1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed." The Court further noted that in Cottle v. State, 733 So.2d 963, 969, n.6 (Fla. 1999), "we said that an evidentiary hearing should be ordered if the claim is sufficiently alleged." In the instant case, however, Defendant was not entitled to an evidentiary hearing. "[Defendant] does not contend that his counsel failed to communicate a plea offer or misinformed him concerning the penalties. [Defendant] has failed to allege any deficient performance on the part of counsel. The mere fact that [Defendant] did not prevail at trial does not translate into misadvice. Some specific deficiency on the part of counsel must be alleged. There is no allegation that counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case or that counsel had not investigated or otherwise was not familiar with the case. Therefore, [Defendant] is not entitled to an evidentiary hearing because his claim is legally insufficient."
Resolving conflict among Districts, Florida Supreme Court clarifies that Strickland standard governs ineffective assistance claims based on counsel's failure to timely move to disqualify trial judge. Thompson v. State, 990 So.2d 482 (Fla. 2008). Defendant was charged with serious offenses. Defense Counsel moved to withdraw, asserting that Defendant made threats against him and his family. At the hearing on the motion, the trial judge made comments that led Defendant to believe that he would not get a fair trial because the judge had already determined the sentence to be imposed. Defense Counsel moved to disqualify the trial judge, but the judge denied the motion as untimely (it was filed 14 days after the hearing, rather than within the required 10 days). Defendant was convicted. Defendant appealed on grounds that included Counsel's failure to timely move for the judge's disqualification. The First DCA affirmed "'without prejudice to Appellant to file a timely motion for postconviction relief based upon ineffective assistance of trial counsel for failure to timely file Appellant’s motion for disqualification of trial judge.' Thompson v. State (Thompson I), 764 So.2d 630, 632 (Fla. 1st DCA 2000)." Defendant’s motion for postconviction relief was denied by the postconviction trial court. The First DCA affirmed, Thompson v. State (Thompson II), 949 So.2d 1169 (Fla. 1st DCA 2007), and "noted its disagreement with the decisions of the Second District in Kleppinger [v. State, 884 So.2d 146 (Fla. 2d DCA 2004)] and the Fourth District in Goines [v. State, 708 So.2d 656 (Fla. 4th DCA 1998)]. Both Goines and Kleppinger rejected the argument that "in order to demonstrate prejudice under Stickland the defendant was required to demonstrate that the outcome would have been different if counsel had secured disqualification" of the trial judge. The Supreme Court quashed the Thompson II decision, holding that, as it indicated in Carratelli v. State, 961 So.2d 312 (Fla. 2007), the Stickland standards for deficient performance and for prejudice apply to a postconviction claim based on trial counsel's failure to timely move for the judge's disqualification. The Court concluded that Defense Counsel's failure to timely file the disqualification motion constituted deficient performance. There was no indication that failure to timely file the motion was a strategic decision. The Court then applied the prejudice prong of Stickland. "To demonstrate prejudice, a defendant must show 'that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' Id. In considering this issue, we reject the State’s claim, and the First District’s apparent holding, that Stickland requires a showing that the actual outcome of the proceedings would have been different but for counsel’s error. Rather, we have repeatedly held, consistent with the United States Supreme Court’s explanation of the prejudice standard in Stickland, that this standard requires a demonstration that the result of the proceeding has been rendered unreliable, and our confidence in the outcome of a proceeding has been undermined by counsel’s deficiency. [Citations omitted.] We find that [Defendant] has demonstrated the requisite prejudice." The Court then concluded that, while the trial judge's comments undermined confidence in the sentence imposed, they did not undermine the jury's determination of guilt.
Resolving conflict among Districts, Florida Supreme Court concludes that trial court and defense counsel were not required to advise defendant that driver's license revocation was consequence of guilty plea. Bolware v. State, 995 So.2d 268 (Fla. 2008). Defendant entered a guilty plea to a charge of driving with a suspended or revoked license. Following his conviction, the Department of Highway Safety and Motor Vehicles determined that Defendant was a habitual traffic offender and revoked his driver's license for 5 years. Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel was ineffective for failing to advise him of the full consequences of his plea and that his plea therefore was not voluntary. The trial court denied the motion. The circuit court reversed, concluding that the license revocation was a direct consequence of the guilty plea and that defense counsel was ineffective for failing to advise Defendant of that consequence. The State petitioned for a writ of certiorari. The First DCA granted the State’s petition for certiorari. State v. Bolware, 28 Fla.L.Weekly D2493 (Fla. 1st DCA Oct 31, 2003). The Florida Supreme Court granted Defendant's request for review based on conflict with Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998), and other Fourth DCA cases. The Court approved the First DCA's decision in Bolware. Initially the Court noted that a trial court is required to inform a criminal defendant "of the direct, but not the collateral, consequences of a plea." (Emphasis by Court.) For a penalty to be considered a direct consequence of a plea, "it must constitute punishment. Otherwise, it could not affect the range of punishment." (Emphasis by Court.) A consequence is direct if it "has 'a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" (Citing Major v. State, 814 So.2d 424 (Fla. 2002) (quoting Major v. State, 790 So.2d 550, 551 (Fla. 3d DCA 2001). The Court then discussed its prior holdings that driver's license revocation is not punishment. Furthermore, the Court pointed out that the consequence in this case was not immediate. The Court concluded that the revocation of a driver's license was a collateral consequence of Defendant's guilty plea and held that "neither defense counsel nor the trial court was required to advise [Defendant] that his license could be revoked." Finally, the Court acknowledged that because driver's license revocation "is such a serious consequence that a defendant should be informed of it." Accordingly, the Court directed that Fla.R.Crim.P. 3.172 be amended. (This action will be done prospectively.)
Florida Supreme Court rules that Legislature's creation of 5 Offices of Criminal Conflict and Civil Regional Counsel does not violate state constitution. Crist v. Florida Association of Criminal Defense Lawyers, Inc., 978 So.2d 134 (Fla. 2008). The Florida Association of Criminal Defense Lawyers ("FACDL") petitioned for a writ of quo warranto to block implementation of Chapter 2007-62, Laws of Florida, which created 5 Offices of Criminal Conflict and Civil Regional Counsel. The regional counsel would represent indigent criminal defendants who could not be represented by the public defenders due to conflicts of interest. FACDL alleged that the law was unconstitutional because the leaders of the regional offices would be appointed by the governor rather than elected. Art. V, Sec. 18 of the Florida Constitution requires that public defenders be elected. FACDL also alleged that the new regional counsel would face an inherent ethical conflict because they would be defending persons charged by the state while being appointed and employed by the state. The trial court granted the quo warranto petition. The governor appealed to the First DCA, which certified the matter as one requiring immediate resolution by the Florida Supreme Court. The Supreme Court reversed. "[W]e conclude that the Offices of the Criminal Conflict and Civil Regional Counsel are not a second-tier 'appointed' public defender system in violation of article V, section 18 of the Florida Constitution. The Legislature’s primary intent was to create a backup system to handle those cases in which a public defender has a conflict and to do so in a fiscally sound manner in accordance with constitutional principles of due process. Because the OCCCRC do not supplant or otherwise compete with the public defender, the five regional counsel are not subject to the qualifications for public defenders set forth in article V, section 18." The Court also rejected the argument that the law would affect the regional counsels' professional independence or impair the right to effective assistance of counsel.
In case of first impression, Second DCA rules that in postconviction plea agreement defendant may validly waive right to seek postconviction relief. Stahl v. State, 972 So.2d 1013 (Fla. 2d DCA 2008). 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 filed various motions for postconviction relief. The trial court denied them based on the waiver in the plea agreement. The Second DCA affirmed, noting that this issue was a matter of first impression. The court concluded that the waiver was valid.
Convicted defendant raised cognizable claim of ineffective assistance by alleging that he rejected plea offer because lawyer advised him they would win at trial. Garcia v. State, ___ So.2d ___, 33 Fla.L.Weekly D1038 (Fla. 3d DCA 2008), 2008 WL1733275. Defendant was charged with armed robbery. He was offered a plea agreement of 5 years imprisonment if he would testify against his co-defendant. He turned down the plea deal and went to trial. He was convicted and sentenced to life imprisonment. Defendant moved for postconviction relief, alleging that "trial counsel was ineffective for advising him to reject the plea offer, in view of the evidence against him." Counsel allegedly told Defendant that they would win the case if it went to trial. The trial court denied the motion for postconviction relief. The Third DCA reversed and remanded for an evidentiary hearing. Defendant "was told of the plea offer and, according to the sworn allegations, states that his counsel advised him to reject the offer. The defendant alleges that counsel was ineffective in rendering that advice. Because this is a cognizable claim under Perez [v. State, 893 So.2d 629 (Fla. 3d DCA 2005)] and Gomez [v. State, 832 So.2d 793 (Fla. 3d DCA 2002)], we reverse for a hearing." The Chief Judge vigorously dissented, stating: "If the majority is correct, then all defendants will allege that their attorneys advised that they should win their case. This would open the door to rampant rule 3.850 motions, which, according to the majority, will necessitate evidentiary hearings."
Court erred by summarily denying motion for postconviction relief that was based on the "messy car defense." Balmori v. State, 985 So.2d 646 (Fla. 2d DCA 2008). Defendant was convicted of attempted trafficking in heroin. He moved for postconviction relief, alleging that trial counsel provided ineffective assistance. One of the allegations summarily denied by the postconviction court was that counsel failed to adequately investigate what the appeals court termed Defendant’s "messy car defense." The prosecution accused Defendant of driving from his home in Sarasota County to Miami to pick up heroin, which was found in his car when he as stopped by police. Defendant contended that he went to Miami for an auto part and that he was unaware of the heroin in his car. He asserted that his car was routinely so messy "that it was entirely possible for him to be unaware that a contraband substance was in a plastic bag on the passenger seat next to him because he regularly left scattered about the vehicle the plastic supermarket bags in which his wife packed his daily lunches. This somewhat novel explanation for the unwitting transport by automobile of a contraband substance might be characterized as 'the messy car defense.'" Defendant alleged that trial counsel had failed to follow up his leads that would have supported his "messy car defense" in front of the jury. The Second DCA concluded that this claim should not have been summarily denied. "[W]e conclude that the documents and witnesses [Defendant] allegedly asked his trial counsel to investigate would not have been cumulative to [Defendant]'s trial testimony. It follows that the postconviction court erred when it summarily denied [Defendant]'s claims that his trial counsel provided ineffective assistance in failing to investigate evidence and witnesses that would have supported [Defendant]'s defense."
Ineffective assistance of counsel claims under Fla.R.Crim.P. 3.850 can arise out of probation revocation proceedings. Ganey v. State, 977 So.2d 698 (Fla. 1st DCA 2008). Defendant was convicted of violating probation. He filed a postconviction motion alleging ineffective assistance of counsel. The court summarily denied the motion. Defendant appealed. The First DCA affirmed, noting that Defendant's claims were "without merit." The appeals court, however, pointed out that the trial court was wrong when it "indicated that rule 3.850 motions do not apply to probation revocation proceedings and there is no claim for ineffective assistance of counsel arising out of probation proceedings. This proposition is incorrect." NOTE: See also Ford v. State, 989 So.2d 691 (Fla. 1st DCA 2008) ("appellant may raise ineffective assistance of counsel at a probation revocation proceeding").
Postconviction motion alleging ineffective assistance of counsel can be used to challenge allegedly vindictive sentencing. Evans v. State, 979 So.2d 383 (Fla. 5th DCA 2008). Convicted Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel "was ineffective in not objecting to the purportedly vindictive sentencing he received." The postconviction court denied the motion. The Fifth DCA reversed. "The trial court in denying the 3.850 motion on this ground held that the issue of vindictive sentencing should have been raised on direct appeal and was, therefore, not cognizable under this rule. The case law does not appear to bear this out. We have previously considered, and granted relief in cases in which the failure of counsel to object to a potentially vindictive sentence under rule 3.850 was raised." (Citations omitted.)
Fourth DCA sets out proper test in reviewing ineffective assistance claim based on counsel's alleged failure to preserve error for appeal. Diaz v. State, 980 So.2d 1275 (Fla. 4th DCA 2008). Convicted Defendant moved for post-conviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel's performance was constitutionally ineffective because counsel failed to object to admission of certain testimony. The trial court denied the motion. The Fourth DCA affirmed, but wrote an opinion "to address the proper test in reviewing a post-conviction ineffective assistance of counsel claim, where the defendant alleges counsel’s failure to object or preserve a claim for appeal." The court noted that counsel's performance was deficient under the first prong of Stickland v. Washington, 466 U.S. 668 (1984). The real question was "whether the deficiency in failing to preserve the error prejudiced [Defendant], pursuant to the second Strickland prong." The appeals court concluded that Defendant had not shown prejudice. "In Carratelli [v. State, 961 So.2d 312 (Fla. 2007)], the supreme court held that the defendant, alleging ineffective assistance of counsel for failure to object/preserve claim of reversible error in jury selection, was required to demonstrate prejudice at trial, rather than on appeal (i.e., show, in that case, that the juror was actually biased)." The court concluded: "[T]he focus, in reviewing the denial of post-conviction relief, is on the effect of defense counsel’s deficient performance on the original trial outcome, and not on whether the defendant could have prevailed on appeal if an objection had been raised. In focusing on the original trial, the court must apply the Strickland test (whether the deficient performance was so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable, and that, but for counsel’s unprofessional errors, the result of the proceeding would have been different) . . ."
Fla.R.Crim.P. 3.850 motion based on misadvice regarding collateral civil consequences of plea must be filed within 2 years after conviction is final, per Fourth DCA. Marshall v. State, 983 So.2d 680 (Fla. 4th DCA 2008) (en banc). Defendant entered a guilty plea and was convicted in 1998. In 2007 he filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging "that counsel told him that, because adjudication would be withheld, he would not have a criminal record. He added that counsel did not explain that the conviction would follow him the rest of his life or that it would subject him to future sentence enhancement or deportation." (Footnotes omitted.) Defendant's motion appeared to be a "form memorandum" relying on Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002). The trial court denied the motion. The Fourth DCA affirmed. Although the Fourth DCA followed Rodriguez in Miralles v. State, 837 So.2d 1083 (Fla. 4th DCA 2003), it concluded: "We recede from Miralles’ holding that a rule 3.850 motion may be filed within two years of discovering counsel’s misadvice regarding a collateral civil consequence of entering a plea. If a collateral consequence of a plea, such as the impact on professional licensing, is of such import that it would cause a defendant to not enter a plea and insist on proceeding to trial, then it should be discovered with the exercise of due diligence within two years of the conviction becoming final." The court certified conflict with Rodriguez and State v. Johnson, 615 So.2d 179 (Fla. 3d DCA 1993).
Postconviction motion based on court's failure to advise of deportation consequences of plea must allege that the plea was the only basis for deportation. Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008). Convicted Defendant moved for postconviction relief pursuant to Fla.R.Crim.P. 3.850, alleging that his plea was involuntary because the trial court did not advise him that the plea may subject him to deportation. The trial court summarily denied the motion. Defendant appealed. The Fourth DCA's opinion addressed the requirements of this type of claim. The trial court found that "it was insufficient as it failed to allege that the plea in this case was the sole basis upon which [Defendant] was subject to deportation." The appellate court agreed. "[T]o state a sufficient claim the movant must allege that he is subject to deportation based solely on the plea under attack. See State v. Seraphin, 818 So.2d 485, 488-89 (Fla. 2002) (explaining that to establish prejudice in this type of claim the motion must show that the movant would not have entered the plea if properly advised). The burden is on the movant to establish that the plea in the case under attack is the only basis for deportation. Only then can the movant show prejudice resulting from the failure to advise of deportation consequences in the case under attack." (Emphasis by court.)
Third DCA addresses when, in light of State v. Green, defendant may withdraw prior plea due to counsel's alleged failure to advise of possible immigration consequences of plea. State v. Freijo, 987 So.2d 190 (Fla. 3d DCA 2008) (on rehearing). Defendant pleaded guilty and was convicted in 1995. He was served with a deportation notice on November 8, 2002. Under Peart v. State, 756 So.2d 42 (Fla. 2000), Defendant was required to file a motion under Fla.R.Crim.P. 3.850 to withdraw his plea prior to November 8, 2004, or his motion would be time-barred. Defendant did not move to withdraw his plea until 2007. Defendant urged that under State v. Green his claim had been revived and thus was timely. The trial court apparently agreed and vacated his conviction. The Third DCA reversed, framing the issue as "whether the Florida Supreme Court’s decision in State v. Green, 944 So.2d 208 (Fla. 2006), revived certain categories of cases in which a defendant seeks to withdraw a prior plea because of the trial court’s alleged failure to advise the defendant of the possible immigration and deportation consequences of the plea." The court concluded that "Green did not revive claims previously adjudicated on the merits, or unadjudicated claims that unquestionably were time-barred at the time Green was announced." The appeals court also certified that it had passed on the following question of great public importance: "WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO.2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA?" NOTE: See also Pena v. State, 980 So.2d 542, 545 (Fla. 4th DCA 2008) (2-year window in Green applies "to litigants who had not yet been made aware of pending removal proceedings or who had not yet made any attempt to have their pleas withdrawn"); State v. DeArmas, 988 So.2d 156 (Fla. 1st DCA 2008) (Green did not open new 2-year window for filing of motion to withdraw plea by defendant with over 2 years of actual knowledge of immigration consequences of plea).
Criminal defense counsel not ineffective for failing to advise client about "collateral consequences" of guilty plea such as gain time credits. State v. Rodriguez, 990 So.2d 600 (Fla. 3d DCA 2008). Lawyer represented Defendant, who was charged with more than 100 criminal counts involving at least 22 separate incidents. The State offered to resolve all of the counts in exchange for a guilty plea and a sentence of 30 years. Lawyer discussed the offer with Defendant, who rejected it. The State separated the incidents for trial Defendant was convicted and sentenced to several life terms. Defendant moved for postconviction relief, asserting that Lawyer provided ineffective assistance. Defendant asserted that Lawyer "failed to properly convey the State’s original plea offer of thirty years in state prison" to him. Specifically, he testified that Lawyer did not advise him of the possibility of gain time, did not advise him of the possibility of parole (which under law was not available at that time), and left him with the impression that he would have to serve the full 30 years. The trial court ordered a new trial. The Third DCA reversed, concluding that Lawyer was not ineffective under Strickland v. Washington, 466 U.S. 668 (1984) and Cottle v. State, 733 So.3d 963 (Fla. 1999). "Gain time, good time, provisional credit time, and additional mitigating credits are all collateral consequences of a guilty plea. It cannot be said with any certainty that these collateral consequences would have been automatically imposed upon [Defendant]’s entry of a guilty plea. In fact, most of the potential time credits that [Defendant] may have been eligible for, depended upon external factors including [Defendant]’s behavior in prison as well as the percentage of fill capacity reached by the prison population. As such, the 'errors' cited by the trial court involved only collateral consequences of [Defendant]’s plea and defense counsel had no duty or obligation to advise [Defendant] of same."
Cases involving right-to-counsel and self-representation issues included: Resolving conflict among Districts, Florida Supreme Court rules that partial deprivation of counsel during sentencing hearing is not "sentencing error" as contemplated by Fla.R.Crim.P. 3.800(b). Jackson v. State, 983 So.2d 562 (Fla. 2008). After Defendant's the trial judge held a hearing at which victim impact testimony was taken. Defendant's counsel was not physically present in the courtroom during the testimony. At a subsequent hearing the judge found Defendant guilty and sentenced her to 5 years in prison. Defendant appealed. The Second DCA affirmed, concluding that the absence of counsel at the sentencing hearing was a sentencing error that should have been preserved for appeal pursuant to Fla.R.Crim.P. 3.800(b) and Fla.R.App.P. 9.140(e). Jackson v. State, 952 So.2d 613 (Fla. 2d DCA 2007). The Second DCA certified with the First DCA's decision in Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003). The Florida Supreme Court granted review and resolved the conflict: "[W]e hold that the denial of counsel at sentencing is not a 'sentencing error' under rule 3.800(b). The rule was intended to permit preservation of errors in orders entered as a result of the sentencing process -- in other words, errors in cost and restitution orders, probation or community control orders, or in the sentence itself. It was not intended to abrogate the requirement for contemporaneous objections. Denial of counsel at sentencing, while occurring during the sentencing process, is not an error in an 'order[] entered as a result of the sentencing process.' Fla. R. Crim. P. 3.800 court cmt. Therefore, to assert such a claim on appeal, no motion under rule 3.800(b) need be filed. Such errors, however, remain subject to the contemporaneous objection rule; if not preserved at trial, they may be reviewed on appeal only for fundamental error. While a denial of counsel for an entire sentencing proceeding would constitute fundamental error, the temporary absence of counsel, at least under the facts of this case, does not."
Defendant's familiarity with criminal justice system is not a substitute for adequate Faretta hearing. Flowers v. State, 976 So.2d 665 (Fla. 1st DCA 2008). Criminal Defendant was convicted for failing to properly register as a sex offender. Defendant appealed, asserting that the trial court erred by not conducting an adequate Faretta [v. California, 422 U.S. 806 (1975)] inquiry before permitting him to represent himself at trial. Agreeing, the First DCA reversed. "Although the trial court did advise the defendant of the disadvantages and dangers of self-representation, the trial court did not advise the defendant of the advantages of representation by counsel nor did it inquire into the defendant’s age, education, ability to read and write, or any mental or physical conditions." The court rejected the State's contention that the Faretta inquiry was adequate "because the defendant was familiar with the criminal justice system," he could read and write, and "the trial court had the opportunity to observe the defendant’s demeanor and ability to express himself."
Limited Faretta hearing conducted after defendant was allowed to discharge counsel results in reversal of conviction. Morgan v. State, 991 So.2d 984 (Fla. 4th DCA 2008). Defendant was represented by retained Counsel. Defendant sought to discharge Counsel just prior to trial. After questioning Defendant the court allowed him to discharge Counsel. The court then conducted a limited Faretta [v. California, 422 U.S. 806 (1975)] inquiry, "wherein it was revealed that the defendant had only an eighth-grade education. The defendant also expressed difficulty in understanding big words and made clear that he had never been to trial on a criminal charge. So far as the record reflects, he was totally unsophisticated in the law. The trial judge did not warn the defendant of the dangers and disadvantages of self-representation. She did warn him, though, that he would have to follow the rules, whether he knew them or not." The Fourth DCA reversed. The trial court had it "backwards" by conducting the Faretta inquiry after it permitted the discharge of Counsel. Furthermore, the inquiry was inadequate. "Because the trial court did not make an adequate Faretta inquiry by failing to assure that the defendant realized the benefits of counsel that he was waiving, reversal for a new trial is required."
LAW FIRMS Florida Bar Board of Governors approves Florida Ethics Opinion 07-2 concerning outsourcing legal work to foreign countries. The Florida Bar Board of Governors approved Florida Ethics Opinion 07-2. The opinion addresses ethical issues presented by Florida lawyers who outsource legal work to foreign countries. Opinion 07-2 concludes that, if certain caveats are followed, the practice may be ethically permissible. The Board committee voted to approve the opinion with the addition of language cautioning lawyers to "be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties, particularly where the information concerns medical records or financial information." The editorial headnote summarizing Florida Ethics Opinion 07-2 states: "A lawyer is not prohibited from engaging the services of an overseas provider to provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of nonlawyers, conflicts of interest, confidentiality, and billing. The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties."
Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal. Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008). Lawyer hired Paralegal, orally agreeing to pay Paralegal a salary plus "bonus wages" calculated as 10% of Lawyer's attorney's fees from cases on which Paralegal worked. At the time, Paralegal did not know that such an arrangement would violate Rule of Professional Conduct 4-5.4(a). Lawyer failed to pay Paralegal the full bonus amount. Paralegal sued to collect. Lawyer defended by asserting that "the agreement was not enforceable against her because her own promise to pay [Paralegal] the bonus wages was 'unethical and thus void as against public policy.'" Lawyer moved for summary judgment on the ground that the bonus agreement was unenforceable as a matter of law. The trial court granted the motion, citing Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla. 1995). (In Chandris, the Florida Supreme Court ruled that a contingent fee agreement that did not comply with the Rules of Professional Conduct was void as against public policy and that, as a result, a lawyer could not recover attorney's fees from the client based on such an agreement.) The Fourth DCA reversed. Although the bonus agreement violated Rule 4-5.4(a)(4), the court distinguished Chandris on several grounds. The rationale underlying Rule 4-5.4(a)(4) is to preclude "improper interference in a case by the paralegal" who expects to share in a percentage of the lawyer's fee. The court stated that "[i]n contrast to the contingent fee rule at issue in Chandris, which directly protects the public by strictly regulating attorney-client fee agreements, the fee-sharing rule at issue here governs agreements between attorneys and nonlawyers in an employment context and has a less direct impact upon the public." Additionally, holding the Lawyer-Paralegal bonus agreement void "would discourage, rather than encourage, attorney compliance with" Rule 4-5.4(a)(4). The court also invoked the doctrine of in pari delicto. "[Paralegal], who is not a member of the Florida Bar, is (a) not regulated by the Rules Regulating the Florida Bar and (b) did not have knowledge that [Lawyer] was breaking the Rules. We therefore find that [Paralegal] was an innocent party and not in pari delicto to this fee-sharing agreement." Accordingly, the agreement was enforceable by Paralegal. Finally, the court specifically limited its holding to "the factual circumstances of this case involving an employment relationship between an attorney and a paralegal."
LEGAL MALPRACTICE Failure of law firm’s former client to appeal adverse judgment does not necessarily preclude its ability to maintain legal malpractice action against firm. Technical Packaging, Inc. v. Hanchett, 992 So.2d 309 (Fla. 2d DCA 2008). Law Firm allegedly gave Client bad advice on a statute of limitations issue in connection with Client’s dispute with a Supplier over multiple purchase agreements. Client changed lawyers and sued Supplier. Supplier won summary judgment on the limitations defense as to all claims. The court ruled that the 4-year, rather than 5-year, statute of limitations applied. Client did not appeal. Instead, Client sued Law Firm for malpractice. Law Firm defended by asserting that Client had abandoned its claims against Supplier by not appealing. The trial court agreed and granted Law Firm’s motion for summary judgment. The Second DCA reversed. The court viewed the operative principle as whether Law Firm “could demonstrate . . . that an appeal by [Client] . . . would in all likelihood have resulted in a reversal.” Law Firm had not done this; in fact, some of Client’s claims would have been untimely even under the 5-year statute of limitations.
Statute of limitations on litigation malpractice claim does not begin to run until postjudgment attorney's fees motions are resolved, per Second DCA. Conflict certified. TSE Industries, Inc. v. Larson & Larson, P.A., 987 So.2d 687 (Fla. 2d DCA 2008), review granted by Larson & Larson, P.A. v. TSE Industries, Inc., 2008 WL 1931423 (Fla. Apr. 24, 2008). Client hired Law Firm for patent matters. Client sued Defendant for alleged patent infringement. Law Firm allegedly engaged in misconduct during litigation. Defendant moved for an award of attorney's fees against Client. The judgment in Defendant's favor in the underlying patent infringement action became final on September 16, 2002, when the time for filing an appeal expired. Thereafter Client and Defendant negotiated a settlement of the attorney's fees claim. On October 10, 2002, Client and Defendant filed a stipulation to dismiss the action with prejudice. Client sued Law Firm for legal malpractice on October 5, 2004, which was less than 2 years after Law Firm filed the stipulation to dismiss the patent infringement action but more than 2 years after the underlying judgment became final. The trial court granted Law Firm's motion for summary judgment, relying on Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998), to hold that the claim was time-barred because statute of limitations on Client's malpractice claim began to run when the judgment on the merits of the patent infringement action became final. The Second DCA reversed. Silvestrone was controlling, but the trial court applied it incorrectly. In Silvestrone the litigation was concluded when the final judgment became final; here, however, because of the attorney's fee claim "the litigation was not concluded until the parties filed the stipulation to dismiss the underlying action with prejudice." The court certified conflict with the Fourth DCA's decision in Integrated Broadcast Services, Inc. v. Mitchel, 931 So.2d 1073 (Fla. 4th DCA 2006).
Legal malpractice case seeking recovery of fees paid fails because client's mother, not client, had paid lawyers' fees. Maxakoulis v. Kotler, 995 So.2d 1024 (Fla. 4th DCA 2008). Former Client sued Lawyers alleging legal malpractice. The trial court granted summary judgment for Lawyers on the ground that Former Client was not entitled to the damages claimed, which included the fees paid to Lawyers. The Fourth DCA affirmed. "In his claim for economic damages, [Former Client] asserts that he is entitled to recover the attorney’s fees he paid to [two of the Lawyers] to represent him in his criminal case and the attorney’s fees he paid to other attorneys to represent him in his post-conviction motions. However, it is undisputed that [Former Client's] mother paid these fees on his behalf and that he has no obligation to reimburse her. Thus, the undisputed facts show that [Former Client] did not suffer any loss and is not entitled to relief."
PROFESSIONALISM Lawyer who failed to appear at court-ordered mediation is sanctioned by court and referred to Florida Bar. Mojzisik v. Estrada, 983 So.2d 699 (Fla. 5th DCA 2008). Lawyer failed to appear at court-ordered mediation. He was sanctioned by the court. Lawyer did not appear at the sanction hearing. The court ordered imposition of the sanctions stayed pending relief from Lawyer’s bankruptcy stay, and further stated: "The clerk of this court is directed to provide a copy of this opinion to The Florida Bar to undertake appropriate action against [Lawyer] with regard to the events set forth herein."
F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic." Yang Enterprises, Inc. v. Georgalis, 988 So.2d 1180 (Fla. 1st DCA 2008).
See discussion in “Fees” section.
Lawyer ordered to show cause why he should not be sanctioned for filing improper motion for rehearing and clarification. Ayala v. Gonzalez, 984 So.2d 523 (Fla. 5th DCA 2008). Party, represented by Lawyer, filed a motion seeking rehearing, rehearing en banc, and clarification of an appellate court's opinion. The court denied rehearing but granted the motion for clarification "to make abundantly clear the basis for our earlier opinion." The history of the litigation was lengthy; Party and Lawyer had filed 10 prior unsuccessful appeals in the case, which arose out of a mediated settlement agreement that Party wished to set aside. In the instant motion, "[a]mazingly, the appellant now seeks rehearing because appellant’s counsel found it 'incredulous' that we might disagree with him on this matter." The court stated: "We thought that it was made relatively clear by this court in Amador v. Walker, 862 So.2d 729 (Fla. 5th DCA 2003), that we do not view the privilege to seek a rehearing pursuant to rule 9.330, Florida Rules of Appellate Procedure, as an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief." Lawyer was ordered to show cause why monetary or other sanctions should not be imposed.
Verdict for slip-and-fall plaintiff is reversed due to "improper and unprofessional" argument and trial conduct by plaintiff's counsel. SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008). Plaintiff, a nurse, was injured when she slipped and fell while exiting Defendant mall with her patient. After a jury trial, judgment was entered for Plaintiff. The Third DCA reversed due to the trial conduct of Plaintiff's counsel. "Unfortunately, a simple slip and fall case unraveled into an improper attack on [Defendant], its witnesses, and its defense counsel. This Court has repeatedly denounced such litigation tactics. Beginning in voir dire and ending with rebuttal closing, [Plaintiff]'s counsel, [], engaged in a series of improper and unprofessional attacks on [Defendant] and its counsel that included the following allegations: (1) failure to produce an incident report; (2) failure to produce all photographs depicting the scene of the accident; (3) defense counsel's collusion with witnesses; (4) a general frivolous defense argument." (Footnote omitted.) The court noted that there was no evidence that the defense hid evidence or acted improperly, and that the argument of Plaintiff's counsel in this regard constituted fundamental error. Furthermore, the "personal opinions" offered by Plaintiff's counsel, "[s]tanding alone," required a new trial. Plaintiff's counsel also used an impermissible "golden rule" argument.
Jury verdict reversed due to counsel's statement during voir dire that he was a "consumer justice attorney" representing an individual rather than a "fancy company." Hollenbeck v. Hooks, 993 So.2d 50 (Fla. 1st DCA 2008). See discussion under “Trial Conduct” section.
Fifth DCA criticizes conduct of lawyers involved in placing irrelevant, prejudicial evidence before jury. Williams v. Lowe's Home Centers, Inc., 973 So.2d 1180 (Fla. 5th DCA 2008). During the trial of a personal injury action, Defense Counsel questioned Plaintiff about an auto accident suit that Plaintiff brought several years before. Defense counsel asked Plaintiff about the amount of the judgment obtained in that suit. Defense Counsel also elicited testimony from Plaintiff regarding Plaintiff's prior addition to crack cocaine. Plaintiff's counsel did not object contemporaneously, although he had moved for a motion in limine to keep out references to the prior suit. The jury found for Defendant. Plaintiff's counsel's motions for new trial were denied. The Fifth DCA reluctantly affirmed in what it called a case that was "disturbing" because "the trial lawyers who were involved know better, or at least should have known better." The amount recovered by Plaintiff in his prior suit "was simply not germane and should not have been elicited by [Defendant]." The questioning regarding Plaintiff's crack cocaine addition "amounted to little more than an improper attack on [Plaintiff's] character." The court further stated: "We can only attribute the defense lawyer’s inappropriate questioning of the plaintiff in this respect to what was euphemistically described during the oral argument of this case as 'overzealous advocacy.' We view it as less than professional." The court concluded, however, that the errors had not been preserved and thus affirmed.
Third DCA judge criticizes professionalism of lawyer defending negligence case. Gold v. West Flagler Associates, Ltd., 997 So.2d 1129 (Fla. 3d DCA 2008). During closing argument in a negligence case defense counsel offered his personal opinion of the merits of the plaintiff's case. Plaintiff's objection was overruled. Defense counsel then continued with his opinion. No motion for mistrial was made. The jury found for the defendant. Plaintiff appealed, contending that the court erred in overruling the objection to defense counsel's argument. The Third DCA concluded that the trial court "erred by not sustaining the objection," but went on to state that "after reviewing the entire trial record, we find such error was harmless, and therefore, is not a basis for reversal." One judge dissented, asserting that defense counsel violated Rule of Professional Conduct 4-3.4(e) and criticizing the lawyer’s professionalism. "In my view, the remarks by defense counsel displayed unprofessional conduct, particularly emanating from an attorney who has been practicing 'for almost 30 years now.' Furthermore, this was not an isolated instance. Defense counsel had been previously reprimanded by the trial judge. By rewarding this behavior, the majority encourages attorneys to inject themselves and their opinions into future trials.
Third DCA criticizes professionalism of lawyer who pursued meritless appeal and suggests lawyer seek help when facing difficult ethical questions. Hernandez v. Gil, 998 So.2d 651 (Fla. 3d DCA 2008). Lawyer represented Appellant at trial and on appeal. The Third DCA affirmed the trial court decision, noting that "the arguments raised by the appellant below and here are meritless and would ordinarily prompt a per curiam affirmance." The court instead chose to write an opinion because "the role and actions of [the appellant]'s counsel warrant attention." Although Appellant had been represented by several prior attorneys, the appeals court did not excuse Lawyer from responsibility for her actions that included disregard of trial court orders and meritless appeals. The court granted the opponent's motion for appellate fees and costs on grounds that included F.S. 57.105 (2007). The court advised: "We believe that this opinion and the monetary sanctions that will follow provide an adequate lesson on when to decline representation and to counsel a client to comply with a court’s directives. 'Just say no' applies to some clients and matters, just as to drugs." In a footnote, the court suggested resources that lawyers could use to avoid these types of problems: "At oral argument, we also recommended to [appellant]’s counsel the advisability of taking difficult ethical questions to an experienced mentor for a second opinion. The Florida Bar’s Henry Latimer Center for Professionalism has established such a program for law students, and local initiatives are underway to make qualified mentors available to all practitioners. The Bar’s toll-free ethics hotline is also a good resource for these situations."
Expressing skepticism regarding some motions to dismiss alleging fraud on the court, Fifth DCA reverses dismissal order entered without evidentiary hearing. Bologna v. Schlanger, 995 So.2d 526 (Fla. 5th DCA 2008). The trial court granted Defendant's motion to dismiss with prejudice Plaintiff's personal injury suit for alleged fraud on the court in connection with testimony about her medical history. The court entered its order after hearing argument but did without taking evidence. The court "rejected the suggestion that inconsistencies in [Plaintiff]'s testimony could be explained by oversights or failed memory, and found by clear and convincing evidence that [Plaintiff] committed fraud on the court by knowingly and intentionally failing to disclose her previous treatment for the same conditions for which she sought damages in the instant action." The court dismissed the action and entered judgment for Defendant. The Fifth DCA reversed. Although noting that a trial court has inherent authority to dismiss an action when a fraud on the court has been perpetrated, the appeals court cautioned against premature exercise of this authority. "We have tried very, very hard to explain, and to emphasize, that this power to dismiss a lawsuit for fraud is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved. Short of this, poor recollection, dissemblance, even lying, can be well managed through cross-examination. A testimonial discrepancy is usually not enough; there should be clear and convincing evidence of a scheme calculated to evade or stymie discovery of facts central to the case. This will almost always require an evidentiary hearing." The appellate court went on to express skepticism regarding some motions to dismiss based on alleged fraud on the court. "This record, as well as others, hints that there may now be a 'fraud' strategy on the part of defense counsel. If a plaintiff denies a particular prior injury or treatment or pattern of pain, rather than probe in detail – which may risk the jogging of the plaintiff's memory – the questioning on this point just stops until the inevitable motion to dismiss for fraud is ruled on." A concurring opinion also stated: "I am skeptical that all of the plaintiffs in the recent profusion of 'fraud on the court' cases are thieves and perjurers."
Fourth DCA criticizes lawyer’s careless work in termination of parental rights case. R.E. v. Dept. of Children and Families, 996 So.2d 929 (Fla. 4th DCA 2008). Lawyer represented Father in a termination of parental rights case. After the trial court entered an order terminating Father's parental rights, Father appealed. Lawyer filed "a brief without a single citation to the record." Lawyer was fortunate that the appeals court did not strike his brief. In a footnote, the Fourth DCA stated: "We would have stricken appellant’s brief and required compliance with rule 9.210(b)(3), but we treat parental termination cases on an expedited basis. Since DCF provided its own statement of facts with citations, and the record which we reviewed is complete, we elect not to strike this brief. We caution counsel that his complete failure to comply with the Rules of Appellate Procedure in his initial brief will not be accepted in future cases."
Lawyer's conduct before judge is criticized, but finding that lawyer was guilty of direct criminal contempt is reversed. Wiggs v. State, 981 So.2d 576 (Fla. 5th DCA 2008). During a proceeding in county court a dispute arose between Lawyer (representing the defendant) and the State over a plea to a misdemeanor. Judge took issue with Lawyer's conduct. After the case against Lawyer's client was resolved, Judge held a hearing at which Lawyer was given an opportunity to apologize to Judge. Lawyer did not apologize, or did not do so to Judge's satisfaction. Judge found Lawyer in direct criminal contempt of court and fined Lawyer $50. The Fifth DCA reversed by a 2-to-1 vote. The trial court's order stated that Lawyer "refused a direct order of the court and the attorney was rude." The majority, while not condoning Lawyer's conduct, concluded that this order was defective because it failed to recite the facts on which it was based and did not comply with the procedural requirements specified by Fla.R.Crim.P. 3.830. A dissenting opinion would have sustained the circuit court's decision, concluding: "Lest [Lawyer] consider that the majority’s decision to quash the contempt order count as a vindication of his conduct, I just point out that seven judges have now weighed in on this courtroom event, and the total vote is four-to-three against him. He is very lucky that the last two were the ones he had to have. Next time – and I suspect there will be a next time – he may not be so lucky."
Fourth DCA is critical of criminal defense counsel's argument concerning state's conduct. State v. Martin, 982 So.2d 1288 (Fla. 4th DCA 2008). Defendant Martin, a former detective, was charged with official misconduct. The State sought to quash an order excluding Martin's former co-worker, Zapata, from testifying. The State argued that the issue of Zapata's testimony had been conclusively determined in a prior certiorari proceeding arising from Martin's contention that the trial court had erred in disqualifying his lawyer, Milian, who had previously represented Zapata. The appellate court denied the certiorari petition. The court went on to express its displeasure with an argument raised by Martin's counsel. "We note in passing that defense counsel’s zealous argument below, that the state had 'fraudulently' listed Zapata as a witness solely to disqualify Milian as counsel, is highly suspect. The state listed Zapata as a witness months before Martin retained Milian as counsel. Before then, Martin had been represented by another attorney. Nothing in the current record suggests that the state anticipated Martin’s choice of counsel would suddenly change. Attorneys should refrain from making accusations that another member of the bar is purposely, or 'fraudulently,' attempting to interfere with a criminal defendant’s constitutional rights unless these accusations are founded in fact."
PUBLIC OFFICIAL ETHICS AND PUBLIC RECORDS Government's charge for labor costs in responding to extensive public records requests may include both salary and employee benefit costs. Board of County Commissioners of Highlands Countyv. Colby, 976 So.2d 31 (Fla. 2d DCA 2008). In response to an "extensive" public records request, County required Requestor to make an advance deposit of the expected labor cost to locate and copy the records. The labor cost was based on the designated employee’s salary and benefits multiplied by the expected time needed to complete the task. (See F.S. 119.07(4).) Requestor responded by filing a public records suit against County. The trial court ruled that County could not include the cost of employee benefits when calculating its labor cost, but that County could collect an estimate of the charge in advance. County appealed the former ruling, and Requestor cross-appealed the latter ruling. The Second DCA sided with County on both issues. "[T]he statute at issue here employs the term 'labor cost,' the plain meaning of which is more inclusive than the words 'wages' or 'salary.' That benefits may be a significant component of labor costs is widely understood." Additionally, "the County may collect a deposit before beginning the research, as long as it is reasonable and based on the labor cost that is actually incurred by or attributable to the County."
Someone requesting public records from city must pay past-due fees owed before city must comply with new request. Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA 2008). Lozman made a public records request of City. City compiled the copies and billed Lozman $233.50. Lozman did not pay and was not given the documents. Lozman then requested other documents. City informed him that he must pay the outstanding bill before City would make further documents available. Lozman petitioned for a writ of mandamus. He did not question the $233.50 charge; rather, "[t]he only issue he raised was whether the city could require him to pay the past due fees before complying with his subsequent requests." The court denied his petition. The Fourth DCA affirmed. Lozman argued that City could not deny his subsequent request unless it had adopted a formal policy requiring an advance deposit. The appeals court disagreed. "Because [F.S.] section 119.07(4) does not require the City to do any more than what it did in this case, Lozman was not entitled to a writ of mandamus."
Private engineering firm that contracted to perform public functions on behalf of city is considered "agency" subject to public records laws. B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So.2d 17 (Fla. 1st DCA 2008). B&S sought a court order requiring BDI, an engineering firm, to produce records held by BDI. B&S contended that the records were subject to inspection under public records laws because BDI contracted to perform engineering services for City. The trial court denied production, ruling that BDI "did not act on behalf of [City] so as to make [any of] the firm's documents public." The First DCA reversed, concluding that BDI fell within the definition of an "agency" for purposes of disclosure under the public records law. F.S. 119.011(2) (2006) "defines 'agency' to include private entities 'acting on behalf of any public agency.'" The court noted that for at least 15 years City had turned over to BDI various municipal engineering functions. Consequently, the records in question were subject to Chapter 119.
Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees. Milanick v. Osborne, ___ So.2d ___ (Fla. 5th DCA, No. 5D08-605, 12/24/2008), 2008 WL 5352093. Mayor was the subject of a ethics complaint filed by Complainant. Mayor prevailed. The Administrative Law Judge awarded Mayor attorney's fees and costs he incurred in defending the complaint, but denied Mayor's request for fees and costs "for the administrative hearing to determine the amount of the award and [Complainant]'s attempt to obtain discretionary review by the Florida Supreme Court." When Complainant appealed, Mayor cross-appealed the denial of fees. The Fifth DCA reversed on Mayor's fee issue. "Section 112.317[(8)], Florida Statutes (2007), entitles Mayor [] to an award of reasonable attorney's fees and costs incurred in defending against the ethics complaint. This includes proving entitlement to and the amount of those costs and fees, including fees and expenses incurred after the administrative hearing. . . . We hold that Mayor [] was entitled to an award of attorney's fees and costs incurred in connection with the September 28, 2007 hearing, including services rendered both during and after the hearing."
Lawyer who acts as city attorney because his firm was retained as independent contractor must comply with financial disclosure law. Florida Commission on Ethics Opinion 08-27. Lawyer's law firm was hired on an independent contractor basis to provide legal services for City. The law firm's contract with City does not name Lawyer individually as city attorney. Lawyer is sometimes referred to by city council members as the city attorney, and the minutes of the council's meetings sometimes reflect Lawyer as the city attorney and sometimes reflect him as the representative of the law firm. Lawyer does most of the law firm's work for City. The Florida Commission on Ethics concluded that Lawyer must file annual financial disclosure pursuant to F.S. 112.3145(2)(b). "Section 112.3145(2)(b) requires all state officers, local officers, and specified state employees to file a statement of financial interests no later than July 1 of each year. Because any person holding the position of municipal attorney is expressly included in the definition of 'local officer,' he or she is required to file a statement of financial interests no later than July 1 of each year. There is no distinction, exemption, or exception in the statute concerning those who serve on an independent contractor basis." The Commission rejected Lawyer's contention that its prior opinions supported a different conclusion. "In sum, Chapter 94-277, Laws of Florida, made it clear that the Legislature intended to make the standards of conduct in Section 112.313 applicable to ‘any individual who routinely serves as the attorney for a unit of local government.’ This is, in effect, a statutory repeal of the opinions you cited."
Florida Commission on Ethics renders opinion on possible voting conflict of non-lawyer law firm member who acts as a lobbyist. Florida Commission on Ethics Opinion 08-13. Village Commissioner is employed by Law Firm as a lobbyist. She is a salaried, non-lawyer employee. Law Firm provides lobbying services to Public Utility. The Village commission will be voting on a franchise agreement with Public Utility. At Law Firm, Commissioner "does not work on [Public Utility] issues" and "none of the clients she represents would be affected by the vote." Commissioner asked the Florida Commission on Ethics whether it would present a voting conflict under F.S. 112.3143(3)(a) for Commissioner to vote on the franchise agreement. The Commission answered that it would not present a voting conflict. "Our past opinions have indicated that each attorney in a law firm is ‘retained’ by each of the firm's clients, and is therefore required to abstain from voting on matters inuring to the special private gain or loss of any client of the firm. These rulings were underpinned by case law stating that the retention of a law firm obligates every member thereof to fulfilling the contract. See, CEO 03-7. The courts have not applied that concept to non-lawyer employees of law firms; nor have we. In CEO 94-41, we advised a paralegal who served as a member of a city council that unlike the attorneys in the firm, her 'principal' would be the law firm where she was employed rather than any individual client of the firm, and that she would not have a voting conflict of interest in voting on matters inuring to the gain or loss of a firm client, so long as the client was not represented in the matter by her firm. Consistent with the opinion, we find here that the Commissioner's 'principals' would be the firm where she is employed and her individual clients. As you have represented that the measure at issue will not inure to the benefit or detriment of any of those persons or entities, no prohibited voting conflict of interest is presented."
RULES AND ETHICS OPINIONS Rule changes generally. See “Rule Changes (Adopted and Proposed)” section at beginning of materials.
Florida Bar Board of Governors approves Florida Ethics Opinion 07-2 concerning outsourcing legal work to foreign countries. The Florida Bar Board of Governors approved Florida Ethics Opinion 07-2. The opinion addresses ethical issues presented by Florida lawyers who outsource legal work to foreign countries. Opinion 07-2 concludes that, if certain caveats are followed, the practice may be ethically permissible. The Board committee voted to approve the opinion with the addition of language cautioning lawyers to "be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties, particularly where the information concerns medical records or financial information." The editorial headnote summarizing Florida Ethics Opinion 07-2 states: "A lawyer is not prohibited from engaging the services of an overseas provider to provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of nonlawyers, conflicts of interest, confidentiality, and billing. The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties."
Florida Bar Professional Ethics Committee reaffirms Proposed Advisory Opinion 90-6, addressing duties of lawyer whose criminal defense client is proceeding under false name. See discussion in “Candor Toward the Tribunal” section.
Florida Bar Professional Ethics Committee approves Proposed Advisory Opinion 07-3 regarding confidentiality obligations of lawyer who receives unilateral communications from would-be client. The Florida Bar Professional Ethics Committee agreed to reconsider previously-published Proposed Advisory Opinion 07-3 regarding the scope of the duty of confidentiality that may be owed in connection with a would-be client's unilateral communications to a lawyer or law firm. Members of the Florida Bar filed comments regarding the proposed opinion, and a subcommittee was formed to reconsider Proposed Advisory Opinion 07-3 in light of those comments. (See Florida Bar Procedures for Ruling on Questions of Ethics.)
TRIAL CONDUCT Jury verdict is reversed due to counsel's statement during voir dire that he was a "consumer justice attorney" representing an individual rather than a "fancy company." Hollenbeck v. Hooks, 993 So.2d 50 (Fla. 1st DCA 2008). Plaintiff sued Defendant for personal injuries from an alleged accident. During voir dire defense counsel stated: "I’m a consumer justice attorney, and I represent John Hooks, a merchant marine, not some fancy company, not some conglomerate." Plaintiff's counsel objected. The trial court required defense counsel to "explain the definition of a 'consumer justice attorney'" and then sustained the objection. The court denied a motion for mistrial. After the jury's verdict, Plaintiff's counsel renewed his motion for mistrial based in part on the statement in question. The trial court again denied the motion. The First DCA reversed, concluding that the trial court abused its discretion in denying the motion for mistrial. The appeals court noted, as had Plaintiff's counsel before the trial judge, that defense counsel was retained by Defendant's insurer. "Counsel’s misleading statement implied that an award of damages would be paid solely by the individual and was nothing less than an appeal to the jury to protect that individual from a harmful verdict. . . . Counsel’s statement did not expressly contrast [Defendant]’s status as an individual with a corporation; nevertheless, his status was inappropriately injected into the case." The objectionable statements would have been "impossible to refute at trial" because it would have been error to inform the venire that defense counsel was actually retained by an insurance company. "In addition, the venire could have easily assumed that [Defendant] did not have insurance coverage and determined that he would unduly suffer from an award of damages." Accordingly, the case was reversed and remanded for a new trial. One judge dissented. While stating that the comments by Plaintiff's counsel were "improper and should never be replicated by any responsible trial attorney," the judge was of the view that the denial of the motions for mistrial were "well within [the trial judge's] broad discretion."
Verdict for slip-and-fall plaintiff is reversed due to "improper and unprofessional" argument and trial conduct by plaintiff's counsel. SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008). See discussion in “Professionalism” section.
Fourth DCA affirms order sanctioning lawyer for bad-faith litigation conduct. Shniderman v. Fitness Innovations and Technologies, Inc., 994 So.2d 508 (Fla. 4th DCA 2008). The trial court entered an order imposing attorney's fees against Lawyer for "bad faith litigation conduct." The Fourth DCA upheld the bulk of the trial court's order. The crux of the dispute was Lawyer's actions in assisting his client in "secur[ing] an entitlement to relief based, in part, upon a document which the principals and attorney knew did not exist." The appellate court concluded that the trial judge's "detailed factual findings are sufficient under Moakley [v. Smallwood, 826 So.2d 221 (Fla. 2002)] – he specifically found that [Lawyer] engaged in bad faith conduct and entered a detailed, eight page order describing the specific acts." (Footnote omitted.) The appeals court rejected what it termed Lawyer's "reshaping of history" in arguing against affirmance of the order.
Third DCA reverses dismissal of case that was imposed as sanction for actions of plaintiff's lawyer. Burgess v. Pfizer, Inc., 990 So.2d 1140 (Fla. 3d DCA 2008). Decedent sued a drug manufacturer and a university hospital, alleging injuries as a result of participating in the clinical study. After Decedent died, the Personal Representative of his estate continued the suit represented by Lawyer. After 4 years of litigation, the Personal Representative was order to file the 6th amended complaint by October 30, 2006. The complaint was not filed by that date. On December 4, 2006, a defendant moved to dismiss based on plaintiff's failure to file the complaint. The complaint was filed the following day. Ultimately the trial court held a hearing and "granted the defendants' motion to strike the most recent complaint and in an order detailing [Lawyer]'s malfeasance and disobedience, dismissed the case with prejudice." Additionally, the court entered judgment for defendants for more than $20,000 in attorney's fees and costs, "this sum to be paid by both [Personal Representative] and her attorney 'jointly and severally.'" The Third DCA affirmed the judgment awarding monetary sanctions against Lawyer, but agreed with Personal Representative's contention that the dismissal with prejudice "sanctions her too harshly" for Lawyer's actions. "[T]he prejudice suffered by Defendants was addressed in the monetary sanction imposed [against Lawyer]. Moreover, while we cannot fault the trial judge’s characterization of counsel’s conduct as 'willful,' our review of the record indicates that this willfulness was the result of at least a splash of lack of ability rather than a wholly purposeful intention to disregard the court’s instructions." The court also ordered that Lawyer serve a copy of its opinion on his client. A lengthy dissent would have upheld the trial judge's dismissal of the action.
TRUST FUNDS Florida Supreme Court holds that lawyer whose trust account check to client has not cleared has duty to stop payment when served with writ of garnishment seeking those funds. Arnold, Matheny and Eagan, P.A. v. First American Holdings, Inc., 982 So.2d 628 (Fla. 2008). 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 were 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 in order to preserve the funds for Bank. 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. The Second DCA reversed: "[W]e 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." Recognizing this as "a case of first impression that addresses a question of great importance to attorneys and their clients," the Second DCA certified the question to the Florida Supreme Court. First American Holdings, Inc. v. Preclude, Inc., 955 So.2d 1231 (Fla. 2d DCA 2007). The Supreme Court approved the Second DCA’s decision. The Court noted that "the special relationship between an attorney and his or her client is an insufficient basis upon which to circumvent the requirements of the garnishment statute." The Court summarized its decision: "We conclude that Florida law imposes on both bank and non-bank 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. We hold that the funds remain in the possession or control of an attorney garnishee if service of the writ of garnishment occurs after a check drawn on an attorney's trust account has been written and delivered to a client but before presentment to the attorney's bank. Accordingly, pursuant to the provisions of the garnishment statute, the attorney in those circumstances has an obligation to inquire of the bank as to the status of the funds in its account and to issue a stop payment order if he or she has the ability to do so. This decision is consistent with the garnishment statute and prior case law interpreting the statute, as well as the Rules Regulating the Florida Bar."
UNAUTHORIZED PRACTICE OF LAW Party may recover fees paid to persons allegedly engaged in unauthorized practice of law only after Florida Supreme Court decides that the conduct constitutes UPL. Goldberg v. Merrill Lynch Credit Corp., 981 So.2d 550 (Fla. 4th DCA 2008). Plaintiffs sued in class actions to recover fees paid for document preparation by non-lawyers. Plaintiffs alleged that this conduct constituted the unauthorized practice of law ("UPL"). The trial court dismissed the actions, apparently on the ground that the Florida Supreme Court has exclusive authority regarding what constitutes UPL. Plaintiffs appealed, contending that Rule 10-7.1, Rules Regulating The Florida Bar, provides for such claims. Despite appearing to agree with Plaintiffs, the Fourth DCA affirmed: "While we agree that the Rule provides for such claims, we hold that the claims must await a decision by the Supreme Court of Florida as to whether the conduct constitutes the unauthorized practice of law." The court distinguished 2 cases relied upon by Plaintiffs (Vista Designs, Inc. v. Melvin K. Silverman, P.C., 774 So.2d 884 (Fla. 4th DCA 2001), and Preferred Title Services, Inc. v. Seven Seas Resort Condominium, Inc., 458 So.2d 884 (Fla. 5th DCA 1984)). In those cases the allegations of UPL were used as a "shield" against claims for fees filed by others, while in the instant case Plaintiffs were attempting to use the UPL allegations as a "sword." The court stated: "Here, however, the plaintiffs are pursuing an affirmative claim using the defendants’ alleged unauthorized practice of law in preparing documents as the basis. No case has approved of using the alleged unauthorized practice of law as a sword prior to a determination by the Supreme Court of Florida that the services actually constitute the unauthorized practice of law. We are not compelled to be the first." NOTE: An unpublished federal court opinion ruled that only the Florida Bar may bring an action for UPL. "The district court determined that Plaintiffs lacked standing to maintain this action: only the Florida Supreme Court has jurisdiction to determine whether the alleged acts constitute the unauthorized practice of law. We agree." Gonciz v. Countrywide Home Loans, Inc. 271 Fed.Appx. 928 (11th Cir. 2008).
Trial court's order revoking an out-of-state lawyer's pro hac vice admission is reversed. Brooks v. AMP Services Limited, 979 So.2d 435 (Fla. 4th DCA 2008) (on motion for clarification). Lawyer was admitted in New York and various federal courts but not in Florida. He filed a verified motion for pro hac vice admission in a Florida circuit court on behalf of clients who were defending against another lawyer's charging lien. The motion included a statement, required by Fla.R.Jud.Admin. 2.510, that Lawyer was an active member in good standing of another state bar (New York). The motion was filed on July 10. On July 11 Lawyer's application for pro hac vice admission was accepted by the court. One day before the hearing on the underlying dispute the opposing law firm, by letter, "brought to the court’s attention that, at the time [Lawyer] moved to be admitted pro hac vice, he actually was not in good standing as a member of the New York State bar; the [opposing] firm had obtained a form, completed on July 25, 2007, by the clerk of the New York Supreme Court, Appellate Division, Second Department, which indicated that [Lawyers'] registration fee, which was due March 2007, had not been paid." Lawyer immediately contacted the New York bar authorities to correct the situation. He asserted that he had never received the fee notice. Lawyer paid the fee and the New York bar authorities then "sent a letter verifying that [Lawyer] was in good standing as an attorney and that there was no record of any public censure, suspension, or disbarment in that court." A follow-up letter a few weeks later stated that "at no time was [Lawyer] not entitled to practice law in the courts of [New York], and he was never marked as delinquent." The trial court was of the view that Lawyer "did not do anything to verify that he was in good standing when he applied, but only assumed he was." The court apparently did not address the fact that the current form for pro hac vice admission must be verified based on the lawyer's "knowledge and belief" (Fla.R.Jud.Admin. 2.510(b)), while the prior version of the rule (Fla.R.Jud.Admin. 2.061(a)) required that the motion show that they lawyer was in good standing in another state. The trial court entered an order vacating its admission of Lawyer pro hac vice. The Fourth DCA quashed the trial court's order vacating Lawyer's admission. "The trial court apparently accepted [Lawyer's] explanation that he had no reason to believe he did not continue to be in good standing; it did not find he had committed any intentional misconduct, refusing to sanction him even with the imposition of a fine. Its vacation of his status was merely for a technical reason which in no way adversely impacted the administration of justice."
Florida Supreme Court disbars rather than suspends lawyer for having what "was in essence a partnership" with nonlawyer for immigration practice. Florida Bar v. Glueck, 985 So.2d 1052 (Fla. 2008). See discussion in “Disciplinary Proceedings” section. |
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