Florida - ATTORNEY-CLIENT RELATIONSHIP
Court erred in ordering enforcement of purported settlement agreement where there was no evidence that plaintiff approved settlement. [Added 7/31/23]
Evans, the plaintiff in a personal injury suit, was represented by counsel. His counsel engaged in settlement negotiations with the insurer, and counsel agreed to settle Evans’ case for $4,000. Immediately upon receiving the settlement draft and release, Evans’ counsel called the insurer and asserted that a mistake had been made and Evans was not agreeing to settle. A month later, Evans filed suit. The insurer then moved to enforce the settlement agreement. The motion documented the negotiations between the insurer and Evans’ counsel. “The motion included no evidence, nor did the motion allege, that appellant had given authority to his attorney to settle for the $4,000 amount, or that the attorney had full authority to settle appellant’s claim at any amount.”
Evans, who spoke another language, responded by asserting that he understood that his counsel agreed to a $40,000 settlement, not one for $4000. The trial court granted the insurer’s motion to enforce the settlement. Evans appealed.
The Fourth DCA reversed. While Florida law favors settlements, when the settlement agreement is made by a party’s lawyer the party seeking to enforce the settlement must prove that the settling lawyer had his or her client’s “clear and unequivocal grant of authority” to settle or that the client subsequently ratified the settlement. No such proof was offered by insurer here.
The court pointed to the 5 rules of law to determine enforceability of a settlement agreement between counsel who negotiated on behalf of their clients: “(1) A party seeking judgment on the basis of compromise and settlement has the burden of establishing assent by the opposing party. . . . (2) The mere employment of an attorney does not of itself give the attorney the implied or apparent authority to compromise his client’s cause of action. . . . (3) An exception to the general rule is a situation in which the attorney is confronted with an emergency which requires prompt action to protect his client’s interest and consultation with the client is impossible. . . . (4) A client may give his attorney special or express authority to compromise or settle his cause of action, but such authority must be clear and unequivocal. . . . (5) An unauthorized compromise, executed by an attorney, unless subsequently ratified by his client, is of no effect and may be repudiated or ignored and treated as a nullity by the client.” Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977).
The court summarized: “[Insurer] had the burden of establishing ‘clear and unequivocal authority’ that [Evans] had authorized his attorney to settle his case for $4,000. [Insurer] presented no evidence that [Evans] had granted his attorney authority to settle, nor did [Insurer] demonstrate that [Evans] had subsequently ratified the settlement. [Insurer] relies mainly on the fact that [Evans] retained his attorney to pursue the claim, and the attorney presented appellee with a letter of representation. However, ‘[t]he mere employment of an attorney does not of itself give the attorney the implied or apparent authority to compromise his client’s cause of action.’ Nehleber, 345 So.2d at 823.” Evans v. Diaz, __ So.3d __ (Fla. 4th DCA, No. 4D22-2733, 7/12/2023), 2023 WL 4479602.
Second DCA grants certiorari relief after trial court denied alleged incapacitated person’s motion to substitute counsel for guardianship proceedings. [Added 11/5/21]
The Department of Children and Families (“DCF”) filed a petition for appointment of a plenary guardian for Foster, an alleged incapacitated person. The trial court appointed counsel for Foster, who attended the hearing on DCF’s petition. The parties stipulated to appointment of an emergency temporary guardian over Foster’s property. The guardianship letters “delegated Mr. Foster’s right to contract to the Temporary Guardian and were set to expire on September 20, 2020.”
Lawyer Denman filed a motion seeking to be appointed as Foster’s counsel for the guardianship proceedings. DCF and “Respondents” (the temporary guardian and relatives of Foster) opposed the motion, contending that Foster could not hire Denman because his right to contract was removed through the temporary guardianship. The trial court denied the motion. Before the motion was denied, Foster moved to substitute Denman as his counsel. The day after the temporary guardianship letters expired, Denman filed a notice of appearance for Foster. The court denied the motion and struck Denman’s notice of appearance. Denman, on behalf of Foster, then filed a petition for writ of mandamus.
The Second DCA granted the petition. The court noted that F.S. 744.3031(1) “gives the trial court the general authority to delegate certain rights of the alleged incapacitated person to a guardian who has the power to exercise those rights on the alleged incapacitated person’s behalf. The statute confers ‘authority’ on the temporary guardian but makes no express mention of the removal of a temporary ward’s rights. See § 744.3031. Delegation of specifically delineated authority has the consequence of removing corresponding rights from the alleged incapacitated person subject to an emergency temporary guardianship to protect the person or property of the individual from danger that may result from the person’s alleged incapacity if immediate action is not taken. See § 744.3031(1). Among those rights removed from the alleged incapacitated person might be the right to enter into contracts.”
The court continued: “However, section 744.331(2)b specifically provides that an alleged incapacitated person has the right to substitute appointed counsel with counsel of his or her choice during proceedings to determine incapacity; this right, by logic and practicality, must entail the right to enter into an agreement with the attorney of his choosing. Thus, while section 744.3031(1) is broad enough to allow removal of the right to contract generally, section 744.331(2)b effectively prohibits the trial court from removing the alleged incapacitated person's right to contract with an attorney. In other words, because the statute confers on the alleged incapacitated person the right to contract with and substitute counsel, this constitutes an exception from the general authority of the trial court to remove the alleged incapacitated person's rights by conferring authority on an emergency temporary guardian.” Foster v. Radulovich, __ So.3d __ (Fla. 2d DCA, No. 2D20-2988, 9/29/2021), 2021 WL 4447033.
Fee- and cost-shifting provisions in representation agreement’s arbitration clause violate public policy expressed in Rule 4-1.8(h) and thus are unenforceable, per Third DCA. [Added 4/1/21]
A lawyer and her law firm (“Defendant” or “Lemos”) represented the wife (“Client” or “Sessa”) in a divorce action. The representation agreement contained an extensive arbitration clause. Among other things, the clause required arbitration of “[a]ny disputes . . . pertaining to our representation,” required the client to advance all costs of the arbitration, and required the client to pay the law firm’s fees and costs regardless of the outcome of the arbitration.
A payment from Client’s former husband went to Defendant, which was supposed to deduct its fees and forward the balance to Client. Fraudulent wiring instructions from a hacker were received by Defendant and, as a result, Defendant wired the funds into a phony bank account. Client did not get the funds, and sued Defendant for malpractice and breach of fiduciary duty.
Defendant filed a motion to compel arbitration. The trial court denied the motion, ruling that the representation agreement did not encompass Client’s claims and that the arbitration clause was ambiguous. The court also ruled that the arbitration clause was unenforceable “because its fee-shifting and cost-shifting provisions ‘are contrary to public policy and serve only to chill the client’s willingness to dispute any issue of [the client’s] representation.’” Defendant appealed.
The Third DCA reversed the portion of the order concluding that the arbitration clause was ambiguous and denying the motion to compel arbitration. The court also affirmed that the fee-shifting provisions violated public policy, and the court severed them from the remainder of the arbitration clause.
The appeals court concluded that the arbitration clause “plainly and unambiguously provide notice to Sessa that any claims regarding Lemos’s representation of Sessa are subject to arbitration.” The court rejected Client’s argument that the duty to safely handle Client’s funds was a “generalized tort duty” rather than a duty arising from the attorney-client relationship. “We do not view Lemos’s duty in this case – that is, to safeguard the marital settlement funds wired by Sessa’s former husband to Lemos’s trust account – as merely a generalized tort duty. Lemos’s duty in this case was born out of Lemos’s attorney-client relationship with Sessa, a relationship memorialized and governed by the retainer agreement between Lemos and Sessa.”
As to the fee- and cost-shifting provisions, the appeals court agreed with the trial court that they “serve only to chill the client’s willingness to dispute any issue of the [client’s] representation.” Accordingly, the court severed those provisions from the remainder of the arbitration clause.
Rule 4-1.8(h) prohibits lawyers from entering into an agreement with a client that prospectively limits the lawyer’s liability to a client for malpractice. The court noted that although the “subject provisions in the arbitration clause are certainly not the type of exculpatory clauses expressly prohibited by the rule, in practice the two provisions erect a significant barrier to a client seeking recourse against her lawyer.”
One provision requires a client “to pay, in advance, all costs associated with the arbitration. This includes the fees of the arbitrator, who, according to the clause, must be an experienced matrimonial lawyer who is a member of the prestigious American Academy of Matrimonial Lawyers. This provision, alone, could require a client to pay thousands of dollars to the arbitrator prior to any arbitration proceedings actually occurring.” (Emphasis by court.) The second provision also was problematic – it requires a client “to pay all of Lemos’s fees and costs associated with the arbitration. The client’s obligation in this regard is absolute; it is not conditioned upon Lemos prevailing in the arbitration, nor is it reciprocal.” (Emphasis by court.)
The court concluded: “Especially when they are coupled together, we view these fee-shifting and cost-shifting provisions of the arbitration clause as a de facto attempt to preemptively limit Lemos’s liability. Thus, we agree with the trial court’s conclusion that they are violative of public policy and invalid.” Lemos v. Sessa, __ So.3d __ (Fla. 3d DCA, No. 3D20-1362, 3/31/2021), 2021 WL 1201428.
Court erred in denying motion to withdraw settlement proposal where proposal both was result of obvious unilateral mistake by lawyer and was not authorized by lawyer’s client. [Added 9/17/20]
Plaintiff was in an auto accident. Plaintiff’s Lawyer sent a proposal for settlement to the defendant driver’s attorney. The proposal was supposed to be for $100,000, but Lawyer’s paralegal erroneously sent a proposal for $10,000. (Defendant had already made settlement offers above that amount.) Defense counsel responded by sending a $10,000 check the next day to accept the offer.
Lawyer filed a motion to withdraw the offer. The trial court denied the motion, stating that the Fourth DCA “requires a trial court to accept a proposal [for settlement] on its face when it is clear and unequivocal on its face. Your signature is on the document.” Lawyer filed a motion for rehearing [more properly characterized as a motion for reconsideration of a non-final order] pointing out that his client had not authorized the $10,000 offer. The trial court summarily denied that motion. Plaintiff client appealed.
The Fourth DCA reversed on two grounds. First, under Florida law an offer can be set aside on the basis of unilateral mistake unless it is “(a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that rescission would be unconscionable.” (Citation omitted.) The appeals court concluded: “[W]hile there appears to be some negligence in the sending of the offer for only $10,000, this is simply the result of miscommunication between the paralegal and the attorney, not inexcusable negligence. The attorney had asked the paralegal to file/serve a PFS [proposal for settlement] for the policy limits, which were $100,000. Offers from [defendant] for more than $10,000 had been already turned down. Just as in [Fla. Ins. Guaranty Ass’n, Inc. v.] Love [732 So.2d 456 (Fla. 2d DCA 1999)], a clerical error occurred. The court erred in denying the motion to withdraw the PFS based upon a mistake.”
Second, the appeals court pointed out that “[a] settlement of a case requires the consent of the client,” citing Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977). “Applying Nehleber, it is clear that the trial court erred as a matter of law in denying the motion based upon the lack of authority to settle the case by the terms of the PFS. To the extent that the court refused to address the issue in the motion for reconsideration, the court abused its discretion.” Dale v. Schaub, __ So.3d __ (Fla. 4th DCA, No. 4D19-900, 8/19/2020), 2020 WL 4810779.
Fourth DCA reverses order establishing guardianship, ruling that appointed counsel in guardianship proceeding must represent prospective ward’s “expressed wishes” rather than “best interests.” [Added 6/8/20]
In a guardianship proceeding, the Ward’s parents sought to be appointed as plenary guardians over the Ward’s person and property. Lawyer was appointed to represent the Ward in the proceeding. The Ward asked the court to discharge Lawyer. Lawyer did not withdraw, “believing her client lacked the capacity to make the decision to fire her.” The trial court denied the Ward’s request.
At the hearing, Lawyer did not object to admission of evidence, cross-examined only one witness, and actually argued in favor of a plenary guardianship despite the Ward’s expressed wish that no guardianship be established. The court ordered a plenary guardianship with the parents as guardians.
The Ward appealed, contending that she was not afforded her right to counsel under constitutional provisions and the applicable guardianship statute. The Fourth DCA reversed.
The appeals court rejected the Ward’s constitutional arguments. The Sixth Amendment to the U.S. Constitution regarding the right to counsel applies exclusively to criminal matters. The due process clauses of the U.S. Constitution and the Florida Constitution require appointment of counsel only in proceedings where incarceration or involuntary commitment may be imposed or proceedings that may result in the loss of parenthood.
But the Fourth DCA did agree with the Ward that the Florida statutes regarding court-appointed counsel in guardianship proceedings were not satisfied. F.S. 744.102 requires that appointed counsel represent the ward’s “expressed wishes” to the extent consistent with the Rules Regulating The Florida Bar. “The language of the statute clearly requires that a lawyer appointed in guardianship proceedings represents the expressed wishes and not necessarily the ‘best interests’ of a prospective ward.” (Emphasis by court.) The court noted that Rule 4-1.2(a) “mandates that ‘a lawyer must abide by a client’s decisions concerning the objectives of representation,’ and “must reasonably consult with the client as to the means by which they are to be pursued.” (Emphasis by court.)
Further, Rule 4-1.14(a) provides that a lawyer representing a client under a disability must “maintain a normal client-lawyer relationship with the client” as far as reasonably possible.
Although subdivision (b) of Rule 4-1.14 addresses situations where a lawyer for a client under a disability may take protective action (such as seeking appointment of a guardian), the court determined that this provision is inapplicable to lawyers in a guardianship proceeding: “We do not read this section to entitle appointed counsel in a guardianship proceeding to counter her client’s express wishes not to have a guardian appointed. Such a reading would conflict with section 744.331(2)(b).”
The appeals court summarized: “[F.S.] 744.102(1) requires that an appointed attorney ‘shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar.’ The statute manifests an intent to ensure that an alleged incapacitated person’s voice and wishes are heard and considered. While counsel no doubt believed that [the Ward’s] physical and mental conditions required a guardianship, she still was obligated to represent her client’s expressed wishes rather than preventing her from expressing her views.”
The court concluded: “In forcing [the Ward] to go forward with a lawyer advocating for what counsel perceived to be her client’s ‘best interests,’ rather than the client’s ‘expressed interests,’ the trial court disregarded [the Ward’s] claims of a conflict of interest, and violated section 744.102(1), Florida Statutes. We therefore reverse the order below establishing a permanent guardianship and remand with directions to appoint conflict-free counsel to represent [the Ward] at a new hearing on the petition for guardianship.” Erlandsson v. Guardianship of Erlandsson, __ So.3d __ (Fla. 4th DCA, Nos. 4D19-2521, 4D19-2322, 5/6/2020), 2020 WL 2177694.
Order granting motion to enforce purported settlement reversed in absence of proof that lawyer had settlement authority from client. [Added 5/20/20]
Represented by Lawyer, Plaintiff sued his former employer (“Defendant”) for breach of contract. Defense counsel emailed Lawyer with a settlement offer regarding Plaintiff and another of Lawyer’s clients. The email stated that “checks were waiting for you” and that Defendant “will dismiss both cases with prejudice and your clients will sign releases.” Lawyer responded with an email stating that one of clients agreed but, as to Plaintiff, Lawyer “can’t speak to dujour [sic] today.” Defendant’s check was picked up and Defendant signed a settlement agreement that was sent to Lawyer for Plaintiff’s signature. Plaintiff never signed the settlement agreement or a release, and the case was not dismissed. The funds were not disbursed to Plaintiff, but they were not returned. Defendant ultimately moved to enforce a settlement agreement. The trial court granted the motion.
Plaintiff appealed. The Fourth DCA reversed. When a lawyer enters a settlement agreement for a client, whether the agreement is enforceable depends on whether the lawyer had clear and unequivocal authority to enter the agreement. Absent such authority, the settlement is of no effect and may be ignored by the client (unless the client has ratified it). Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977). The client’s silence or lack of objection is not proof of authority. Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So.2d 796 (Fla. 1st DCA 1985).
In this case, the burden was on Defendant to prove that Lawyer had a “clear and unequivocal grant of authority” from Plaintiff to settle Plaintiff’s case. Defendant failed to meet that burden, so the appeals court “is ‘required to reverse.’” (Citation omitted.) DeJour v. Coral Springs KGB, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D19-2307, 4/1/2020), 2020 WL 1546449.
Lawyer denied authorization to represent ward in guardianship proceeding who contacted lawyer directly to retain him. [Added 2/4/19]
A trial court determined that a ward was incapacitated and appointed a guardian. The ward then contacted Lawyer and sought to hire him as her attorney. Lawyer moved for authorization to represent the ward. His motion was denied, and Lawyer petitioned for certiorari review.
The Third DCA denied the petition. The ward’s right to contract with counsel was “removed by the trial court’s prior order determining the ward was incapacitated.” Accordingly, only the guardian had capacity to hire an attorney on behalf of the ward. Jacobsen v. Busko, __ So.3d __ (Fla. 3d DCA, No. 3D18-1545, 12/19/2018), 2018 WL 6625849.
Inability to contact client for approval did not excuse lawyer from sanctions for not timely withdrawing non-meritorious claim for fees. [Added 11/15/18]
Lawyer represented Plaintiff in a civil suit against 2 defendants (“Appellees”). At the beginning of trial, Plaintiff announced a voluntary dismissal of the suit. Appellees then filed and served a motion for prevailing party fees against Plaintiff. Plaintiff responded with a motion for sanctions against Appellees under F.S. 57.105(1)(b), contending that Appellees’ fee claim was meritless because Appellee had failed to timely please entitlement to fees as required by Stockman v. Downs, 573 So.2d 835 (Fla. 1991). Appellees ultimately withdrew their fee motion 23 days after the 21-day safe harbor window provided for in F.S. 57.105(4) had expired.
At the hearing on Plaintiff’s motion for sanctions, “Appellees’ attorney conceded that the attorney’s fees motion was meritless because it had not been timely pled.” He explained he had been unable to get his client’s approval to revoke the motion during the safe harbor period because the client’s controlling officer “was out of the country at the time and unreachable.” The trial court denied Plaintiff’s motion for sanctions.
The Fourth DCA reversed the order denying fees as a sanction, pointing out that the denial was “in derogation of an express requirement of the statute” and that “[t]here is no exception for attorneys who feel restrained from dropping a claim which the attorney has come to understand is not legally supported because the attorney has not had an opportunity to consult with his client.” The court explained: “[T]he inability to reach one’s client does not excuse an attorney from the requirement to withdraw a frivolous motion under section 57.105. As an officer of the court, Appellees’ attorney had a duty to withdraw his admittedly nonmeritorious motion with or without his clients’ permission. See R. Regulating Fla. Bar 4-3.1; see also De Vaux v. Westwood Baptist Church, 953 So. 2d 677, 684 (Fla. 1st DCA 2007). Furthermore, the attorney, not the client, is the party responsible for the fees awarded under section 57.105(1)(b). See § 57.105(3)(c) (‘[M]onetary sanctions may not be awarded . . . [u]nder paragraph 1(b) against a represented party.’).” Mark W. Rickard, P.A. v. Nature’s Sleep Factory Direct, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D18-374, 10/31/2018), 2018 WL 5733430.
Court erred in ordering enforcement of purported settlement agreement in absence of competent, substantial evidence that party’s lawyer had clear and unequivocal authority to enter agreement. [Added 8/13/18]
Plaintiff engaged in protracted litigation with Defendant. In 2016 Defendant’s lawyer, Javits, initiated settlement negotiations by emailing a settlement offer to Plaintiff’s lawyer, Zumpano. The 2 lawyers exchanged emails over the next few months. “Throughout the negotiations, Javits represented that he had [Defendant’s] authorization to extend and accept certain offers.” The lawyers had a phone conference on August 30, 2016. A few hours after the call, Zumpano emailed to Javits a list of settlement terms that Zumpano claimed were agreed upon. Javits emailed back the same day, agreeing “to continue an upcoming hearing ‘pending settlement.’” Two days later, Javits sent a letter notifying the court that a settlement could not be reached. He informed Zumpano that Defendant was not “inclined” to settle. Plaintiff then moved to enforce what he claimed was the settlement agreement reached on August 30. The trial court granted the motion to enforce the settlement.
The Third DCA reversed. The court noted that “[c]ase law sets a very high standard for a party to meet to enforce a settlement agreement.” (Citaton omitted.) The party seeking to enforce the settlement purported must prove that the opposing party’s lawyer had the “clear and unequivocal authority” to settle on the client’s behalf. The trial court’s findings that the lawyer had such authority must be supported by competent, substantial evidence. In this case, the trial court erred in granting the motion because such evidence was not presented on the record.
Zumpano alleged that a settlement was reached during the August 30 call with Javits. Zumpano claimed that his followup email memorialized the settlement terms, while Javits “claimed everyone was aware that, as to that particular email and its terms, he had to obtain St. Mary’s authorization to agree.” Zumpano pointed to the series of prior emails exchanged with Javits to show that Javits had settlement authority. The appeals court disagreed. “[A]lthough these emails evidence some authority to negotiate and even extend or accept certain offers, there was no evidence presented that St. Mary’s authorized Javits to enter into the specific August 30 settlement agreement. Throughout the email exchanges, Javits consistently indicated when he had [Defendant’s] authorization to extend, accept, or reject offers; however, there is no mention of such authorization in Javits’s reply to the August 30 email. He merely stated that he agreed to continue an upcoming hearing ‘pending settlement’ and reset other motions for two weeks.” St. Mary’s School of Medicine Limited v. Zabaleta, __ So.3d __ (Fla. 3d DCA, No. 3D17-1584, 8/1/2018), 2018 WL 3636830.
Attorney-client relationship requirement that is element of legal malpractice claim can be satisfied when putative client consults with lawyer through agent. [Added 7/13/18]
JBJ Investments sued attorney Burgess and the Burgess law firm (“Burgess Defendants”) for claims including alleged malpractice. JBJ had agreed to loan money to borrowers, with the loan to be secured by a note and mortgage on 5 properties. The loan was closed by Southern Title. The Burgess Defendants prepared the note and mortgage. The encumbered property was listed on attached Exhibit A, which was prepared by Southern Title.
When the borrowers defaulted, JBJ learned that Exhibit A did not include the key property that was to secure the loan. They sued Southern Title and the Burgess Defendants. Burgess asserted that there was no attorney-client relationship between JBJ and the law firm as a matter of law “due to the ‘complete lack of communication’ between JBJ and the Burgess Defendants.” The trial court granted Burgess’s motion for summary judgment, assuming for the sake of argument that there was an attorney-client relationship but concluding that the Burgess Defendants did not prepare the legal descriptions in Exhibit A. JBJ appealed.
The Fourth DCA reversed, concluding that there were genuine issues of material fact. One of those issues was “whether an attorney-client relationship existed where there was evidence that JBJ entrusted the closing agent to communicate with Mr. Burgess on behalf of JBJ.”
Although it was undisputed that the principal of JBJ never met or communicated with attorney Burgess, JBJ claimed that it had “indirectly” hired the Burgess Defendants. JBJ’s principal (Hernandez) asserted that he told one of Southern Title’s agents (Goenaga) that he wanted a lawyer involved to prepare and review the loan documents for accuracy.
The appeals court discussed Florida law regarding establishment of an attorney-client relationship. It noted that “an essential element of an attorney-client relationship is that there must be “some sort of consultation between the lawyer and the putative client.” The court cited Am. Jur. Proof of Facts 2d for the proposition that the consultation requirement can be met when the person consulting with the lawyer is acting for putative client with at least implied authority and stated that “[t]he consultation requirement can therefore be met when an agent of the client consults with an attorney on the client’s behalf.”
Regarding the attorney-client relationship issue, the court concluded: “In short, a reasonable jury could find that an attorney-client relationship existed between JBJ and the Burgess Defendants by virtue of Ms. Goenaga consulting with Mr. Burgess in her capacity as JBJ’s title agent and referring to him the work of preparing the note and mortgage.” JBJ Investment of South Florida, Inc. v. Southern Title Group, Inc., __ So.2d __ (Fla. 4th DCA, Nos. 4D16-1925, 4D16-3974, 7/5/2018), 2018 WL 3301673.
U.S. Supreme Court reverses conviction, ruling that criminal defense counsel may not concede capital defendant’s guilt at trial over defendant's vociferous objections. [Added 5/22/18]
McCoy was charged with three counts of first-degree murder. Counsel from the public defender’s office was appointed to represent him. McCoy was examined and found competent to stand trial. Appointed counsel was discharged after McCoy told the court their relationship had broken down irretrievably. Ultimately McCoy was represented by lawyer English, who was hired by McCoy’s parents.
English considered the evidence against McCoy to be overwhelming and that a concession of guilt would be the best strategy to avoid the death penalty. McCoy vehemently disagreed and wanted to replace English. The court refused and stated that English was representing McCoy. English conceded McCoy’s guilt in his opening statement. McCoy testified in his own defense and denied committing the murders. English conceded McCoy’s guilt again in closing argument and, after McCoy was convicted of first-degree murder, at the penalty phase. The jury returned verdicts of death.
McCoy obtained new counsel and moved for a new trial. The court denied the motion. The Louisiana Supreme Court affirmed the trial court’s ruling that defense counsel had authority to concede his client’s guilt. McCoy petitioned the United States Supreme Court for a writ of certiorari.
The U.S. Supreme Court reversed McCoy’s convictions and remanded the case for further proceedings. The Court concluded that McCoy’s Sixth Amendment rights were violated. The Sixth Amendment provides a defendant with the right to choose the objective of his defense and to insist that his counsel not admit the defendant’s guilt, even when counsel considers that to be the best defense strategy.
Florida v. Nixon, 543 U.S. 175 (2004), was distinguishable. In Nixon, the defendant did not complain about his counsel’s admission of defendant’s guilt until after the trial. McCoy, however, consistently opposed English’s intent to admit McCoy’s guilt.
Further, the ineffective assistance of counsel approach set forth in Stickland v. Washington, 466 U.S. 668 (1984), was inapplicable to McCoy’s case. The issue in the instant case was client autonomy, not competence of counsel. “Violation of a Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called ‘structural’; when present, such an error is not subject to harmless-error review.”
Three justices dissented.
Lawyer who represented client in settling suit had apparent authority to accept notice of late payment for client. [Added 3/16/18]
Buyer purchased a business from Sellers. Buyer failed to make payments and Sellers sued. The litigation was settled, with Buyer agreeing to make payments. After making several payments, Buyer was late in paying. Sellers’ lawyer, Maier, emailed a notice of nonpayment to Buyer’s lawyer, Tittle. Buyer then made the required payment within the contractual period. This scenario was repeated several times, with the email notice from Maier stating that it was being sent to Tittle in his capacity as Buyer’s lawyer and requesting that Tittle inform Maier if he was no longer representing Buyer. There was no response to this request.
When Buyer was again late in paying, Maier sent another notice. When Buyer failed to cure within the contractual period, Sellers filed suit and set a hearing. At the hearing, Buyer contended that “he had not received proper notice of late payments, because they were sent to Tittle, who was not representing him at the time of the notice of default.” The trial court disagreed and rendered judgment for Sellers.
On appeal Buyer argued that the trial court “erred in enforcing the settlement agreement when he had not received proper notice of late payment pursuant to the agreement” and that “notice was required to be sent to him and not Tittle, who he claimed was not his attorney after the termination of the litigation.”
Regardless of whether an agent has actual authority, an agent’s acts may bind the principal if the agent act with apparent authority. Apparent authority “arises from the authority a principal knowingly tolerates or allows an agent to assume, or which the principal by his actions or words holds the agent out as possessing.” (Citation omitted.) Buyer argued that he did nothing to give Tittle apparent authority to act for him. The appeals court rejected Buyer’s argument, as the trial court did. “[W]hether or not Tittle was formally retained to represent him, by [Buyer]’s conduct in curing the default each time a notice of default was sent to Tittle, he vested Tittle with the authority to accept the notices of default on which [Sellers] relied in good faith.” Clayton v. Poggendorf, __ So.3d __ (Fla. 4th DCA, No. 4D17-488, 2/21/2018), 2018 WL 992316.
Third DCA rejects argument that principals of law firm’s former corporate client should not be held liable for the firm’s unpaid fees. [Added 8/30/17]
Law Firm represented client Zodiac, Inc., in federal litigation. Zodiac, through its vice-president Daniel Felger, signed the firm’s engagement letter. The letter was addressed to Zodiac, Daniel Felger, and David Felger (Zodiac’s president), “and referred consistently to ‘you’ rather than to ‘Zodiac.’” Zodiac later withdrew from the representation and sued Zodiac and both Felgers in state court for unpaid fees. The Felgers denied that they were individually responsible for the firm’s fees. The trial court entered judgment against all 3 defendants for the fees.
The Third DCA affirmed. “The trial court correctly determined that, when the Felgers filed insurance claims for reimbursement of fees incurred in the federal lawsuit, they maintained that they were individually liable for those fees.” Further, the Felgers had accepted reimbursement for some of their payments to Law Firm. Zodiac Group, Inc. v. GrayRobinson, P.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D-16-1766, 3D16-322, 8/9/2017), 2017 WL 3400834.
Court erred in imputing statements of counsel to client and finding fraud on court based on those statements. [Added 1/18/16]
Birth mother C.B. moved to withdraw consent to adoption of her child. She was represented by privately retained counsel, Lawyer. At a case management conference, her privately-retained counsel (“Lawyer”) “orally asserted that C.B. was not permitted to see the child until she signed the consent paperwork.” Ultimately, the court held an evidentiary hearing. After the hearing, the court “found that C.B. committed fraud on the court based solely on [Lawyer’s] allegations at the earlier case management conference” and dismissed C.B.’s motion to withdraw consent.
The Second DCA granted C.B.’s petition for certiorari and quashed the order. “The only basis for the court’s finding that C.B. perpetrated fraud on the court was private counsel's representation that the adoption entity denied C.B. access to her child in order to pressure her into signing the consent form. . . . The statements made by private counsel during the case management conference should not have been imputed to C.B. without a proper evidentiary hearing. See, e.g., Traylor v. State, 596 So.2d 957, 979 (Fla. 1992) (Kogan, J., concurring in part, dissenting in part) (explaining that the acts of an attorney may be imputed to the client except in circumstances involving fraud or violations of professional ethics). The record does not reflect that there was any evidentiary support for the trial court’s finding that private counsel made the statements in reliance on information she received from C.B.” In re M.W., __ So.3d __ (Fla. 2d DCA, No. 2D15-3073, 12/30/2015), 2015 WL 9487595.
Judgment for lawyer in suit against former client for posting defamatory online reviews affirmed on appeal. [Added 1/8/16]
Lawyer Giustibelli represented Blake in a divorce from her husband, Birzon. After a breakdown in the attorney-client relationship, Blake and Birzon posted negative online reviews regarding Giustibelli. The reviews stated that Giustibelli charged Blake 4 times the amount of fees originally quoted, that she lacked integrity, and that she falsified a contract. Alleging that the reviews were defamatory, Giustibelli sued Blake and Birzon for libel. The trial court entered a judgment of $350,000 in punitive damages for Giustibelli. Blake and Birzon appealed.
The Fourth DCA affirmed. Blake and Birzon contended that “their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation.” The appeals court disagreed. “all the reviews contained allegations that Giustibelli lied to Blake regarding the attorney’s fee. Two of the reviews contained the allegation that Giustibelli falsified a contract. These are factual allegations, and the evidence showed they were false.” Appellants’ reliance on Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974), was misplaced. Giustibelli was not a media defendant, and for non-media defendants libel per se still exists in Florida. Blake v. Giustibelli, 182 So.3d 881 (Fla. 4th DCA 2016).
There is a presumption that lawyer is duly authorized to act for client and accept service on client’s behalf. [Added 12/21/15] -- Horton v. Horton, 179 So.3d 459 (Fla. 1st DCA 2015).
Lawyer hired to represent trustee does not owe fiduciary duty to trust beneficiaries, per Eleventh Circuit. [Added 3/30/15] -- Bain v. McIntosh, 597 Fed.Appx. 623 (11th Cir. 2015).
Second DCA indicates that one party had no standing to challenge authority of lawyer who appeared for opposing party. [Added 12/26/14] -- Trans Health Management Inc. v. Nunziata, 159 So.3d 850 (Fla. 2d DCA 2014).
Lawyer who is “too personally involved with the issues” in a client’s case may violate ethics rules regarding competence and independence of professional judgment. [Added 11/29/14] -- Lieberman v. Lieberman, 160 So.3d 73 (Fla. 4th DCA 2014).
Settlement agreement conditioned on former client’s withdrawal of Bar complaint is unenforceable term that is not severable from purported agreement. [Added 9/2/14] -- Jaffe v. Guardianship of Michael Ross Jaffe, 147 So.3d 578 (Fla. 3d DCA 2014).
Supreme Court denies motion to withdraw filed by lawyer representing convicted criminal defendant who wants to argue for death sentence. [Added 7/17/14] -- Robertson v. State, 143 So.3d 907 (Fla. 2014).
Reversing Third DCA, Supreme Court applies “hot potato rule” in ordering disqualification of lawyers for violating conflict of interest rules -- even though lawyers were not "direct counsel" of some affiants who urged disqualification. [Added 4/7/14] -- Young v. Achenbauch, 136 So.3d 575 (Fla. 2014).
Rejecting respondent lawyer’s arguments as to client identity, Supreme Court suspends him for 1 year instead of 90 days as recommended by referee. [Added 12/11/13] -- Florida Bar v. Whitney, __ So.3d __, 38 Fla.L.Weekly S878 (Fla., No. SC11-1135, 12/5/2013), 2013 WL 6305609.
Eleventh Circuit concludes that law firm did not ghostwrite bankruptcy documents in violation of the Rules of Professional Conduct. [Added 9/18/13] -- In re Hood, 727 F.3d 1360 (11th Cir. 8/29/2013).
Supreme Court rules that criminal defendant’s lawyer, not defendant, has final authority to call or not call witnesses at trial. [Added 4/14/13] -- Puglisi v. State, 110 So.3d 1196 (Fla. 4/11/2013).
Fifth DCA indicates that lawyer’s motion to withdraw should be granted where attorney-client relationship has become “adversarial.” [Added 11/13/12] -- Bowin v. Molyneaux, 100 So.3d 1197 (Fla. 5th DCA 2012).
Public Defender’s Office representing ward in Baker Act case should not have been discharged on claim that guardian’s lawyer could represent ward. [Added 4/16/12] -- Auxier v. Jerome Golden Center for Behavioral Health, 85 So.3d 1164 (Fla. 4th DCA 2012).
Per Third DCA, “traditional conflict model” is inadequate to resolve disqualification motions in class action context. [Added 3/26/12] -- Broin v. Phillip Morris Companies, Inc., 84 So.3d 1107 (Fla. 3d DCA 2012).
Suspending rather than admonishing lawyer, Supreme Court broadly construes rule against limiting malpractice liability to client. [Added 3/19/12] -- Florida Bar v. Head, 84 So.3d 292 (Fla. 2012).
Professional Ethics Committee adopts Florida Ethics Opinion 11-1 regarding representation of Department of Revenue in child support cases. [Added 9/30/11] -- At its meeting in Orlando on September 21, the Florida Bar Professional Ethics Committee approved Florida Ethics Opinion 11-1. This opinion responded to an inquiry from the Eleventh Judicial Circuit State Attorney's Office. The Department of Revenue ("DOR") is responsible for administering the Title IV-D child-support program in Florida. The state attorney's office represents DOR. The law requires DOR to review child support obligations to determine whether the amounts remain consistent with current support guidelines and to seek adjustments when appropriate. In carrying out these duties DOR may find itself seeking to enforce a child support obligation against a non-custodial parent and later seeking a reduction of the same support order on that non-custodial parent’s behalf. F.S. 409.2564(5) provides that "[a]n attorney-client relationship exists only between the department and the legal services providers in all Title IV-D cases." Former Florida Ethics Opinion 92-2 had concluded that, despite F.S. 409.2564(5), "it would be unethical for an attorney who has received confidential information from one parent to later act adversely to that parent in a matter involving that confidential information " In response to the inquiry from the State Attorney's Office, the Committee withdrew Opinion 92-2. Opinion 11-1 was adopted to replace the withdrawn opinion. Opinion 11-1 references Department of Revenue v. Collingwood, 43 So.3d 952 (Fla. 1st DCA 2010), and concludes: "Because the parent as a matter of law is not a client of the lawyer representing DOR, that lawyer owes the parent none of the ethical obligations that are premised on the existence of a lawyer-client relationship, including the obligations of loyalty and confidentiality. Accordingly, there are no ethical limitations on the lawyer’s representing DOR in its (DOR’s) providing services to a parent, regardless of a prior representation in which the services were provided to the other parent." In PAO 11-1 the Committee acknowledged the existence of Fla.Stat. sec. 90.502(5) but stated that "[a]lthough the Committee believes that this provision does not in itself create a lawyer-client relationship between the lawyer and the recipient of DOR’s services, its impact is a legal question beyond the scope of an ethics opinion."
Court should not have disqualified lawyer despite unusual conflict of interest on the part of person who hired him. [Added 8/16/11] -- Razin v. A Milestone, LLC, 67 So.3d 391 (Fla. 2d DCA 2011).
Supreme Court suspends lawyer for providing improper financial assistance to client. [Added 6/28/11] -- Florida Bar v. Patrick, 67 So.3d 1009 (Fla. 2011).
Enforcement of representation agreement clause requiring arbitration of legal malpractice claims is not against public policy, per Second DCA. [Added 6/20/11] -- Johnson, Pope, Bokor, Ruppel & Burns, LLP v. Forier, 67 So.3d 315 (Fla. 2d DCA 2011).
Court erred in denying motion to compel arbitration in legal malpractice case. [Added 3/30/11] -- Mintz & Fraade, P.C. v. Beta Drywall Acquisition, LLC, 59 So.3d 1173 (Fla. 4th DCA 2011).
Supreme Court suspends lawyer whose sexual relationships with clients violated conflict rule and other rules. [Added 3/7/11] -- Florida Bar v. Roberto, 59 So.3d 1101 (Fla. 2011).
Fourth DCA construes arbitration clause in attorney-client contingent fee agreement, relying on some familiar principles. [Added 2/11/11] -- Feldman v. Davis, 53 So.3d 1132 (Fla. 4th DCA 2011).
First DCA clarifies that Department of Revenue lawyers represent Department, not parent, in child support actions. [Added 7/19/10] -- Florida Dept. of Revenue v. Collingwood, 43 So.3d 952 (Fla. 1st DCA 2010).
Court erred in denying motion to withdraw because Office of Criminal Conflict and Civil Regional Counsel not subject to appointment for indigent defendants in postconviction case. [Added 4/26/10] -- Office of Criminal Conflict and Civil Regional Counsel, Second District v. Smith, 33 So.3d 105 (Fla. 2d DCA 2010).
Law firm's representation of an LLC did not create attorney-client relationship with a principal for purposes of disqualification. [Added 3/11/10] -- PMG Collins, LLC v. R and G Enterprises, LLC, 30 So.3d 605 (Fla. 3d DCA 2010).
Court erred by failing to hold evidentiary hearing before concluding that no attorney-client relationship had been established. [Added 6/12/09] -- Powell v. Solowsky, 14 So.3d 1064 (Fla. 3d DCA 2009).
Moving for continuance in criminal case was lawyer's decision and was proper even where client opposed it. [Added 5/26/09] -- Laidler v. State, 10 So.3d 1136 (Fla. 1st DCA 2009).
$250,000 judgment is reversed, partly because one party's lawyer failed to fairly represent it during settlement conference. [Added 4/13/09] -- Ashtead Group PLC v. Rentokil Initial PLC, 7 So.3d 606 (Fla. 2d DCA 2009).
Third DCA reminds lawyers of the high standards that apply when lawyers engage in business dealings with clients. [Added 3/4/09] -- Brigham v. Brigham, 11 So.3d 374 (Fla. 3d DCA 2009).
Third DCA discusses test for establishment of attorney-client relationship in context of summary judgment granted in legal malpractice case. [Added 11/6/08] -- Mansur v. Podhurst Orseck, P.A., 994 So.2d 435 (Fla. 3d DCA 2008).
Order enforcing personal injury settlement reversed because plaintiff's lawyer exceeded settlement authority. [Added 10/21/08] -- Johnson v. Skarvan, 992 So.2d 873 (Fla. 5th DCA 2008).
Order enforcing settlement agreement reversed due to lack of evidence that counsel had "clear and unequivocal" authority to settle [Added 7/24/08] -- Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 989 So.2d 662 (Fla. 2d DCA 2008).
Claim for contingent fee denied because contract was signed by person without authority and minor [Added 6/4/08] -- Charles v. Klemick and Gampel, P.A., 984 So.2d 563 (Fla. 2d DCA 2008).
"Form" language in retainer agreement is not by itself sufficient to authorize party's lawyer to file proposal for settlement [Added 4/18/08] -- Ponce v. U-Haul of Florida, 979 So.2d 380 (Fla. 4th DCA 2008) (on rehearing).
Lawyer is unsuccessful in attempt to set aside client's settlement and continue suit in client's name to pursue lawyer's fee award [Added 3/26/08] -- Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So.2d 688 (Fla. 4th DCA 2008).
Judgment awarding fees to lawyer is reversed on ground that there was no evidence lawyer had actual or apparent authority to represent purported corporate client. [Added 12/9/07] -- Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007).
Capital Collateral Regional Counsel not authorized to represent convicted death penalty defendants in collateral attacks on prior convictions used as aggravators in their convictions, per Florida Supreme Court. [Added 11/27/07] -- State v. Kilgore, 976 So.2d 1066 (Fla. 2007).
Lawyer appointed as "special counsel" to present mitigation evidence in capital case does not have attorney-client relationship with defendant. [Added 10/10/07] -- Grim v. State, 971So.2d 85 (Fla. 2007).
Citing Rule of Professional Conduct 4-1.14, Fourth DCA affirms trial court's refusal to appoint attorney ad litem for allegedly incompetent father who was represented by counsel in dependency case. [Added 6/25/07] -- S.K. v. Dept. of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007).
Workers' compensation claimant considered "represented by counsel" at time claimant executed release even though counsel did not know about or advise claimant regarding release. [Added 11/29/06] -- Brewer v. Laborfinders of Tampa, 944 So.2d 1102 (Fla. 1st DCA 2006).
Corporation's lawyer represents entity under Rule 4-1.13, and under some circumstances may have duty to inquire further below following directives of corporate agent. [Added 10/23/06] -- Palafrugell Holdings, Inc. v. Cassel, 940 So.2d 492 (Fla. 3d DCA 2006).
Public Defender has no authority to represent criminal defendant in non-capital collateral postconviction proceeding, unless appointed. [Added 9/8/06] -- Mann v. State, 937 So.2d 722 (Fla. 3d DCA 2006).
Florida Bar Ethics Committee adopts opinion approving electronic storage of lawyers' files. [Added 6/26/06] -- Florida Ethics Opinion 06-1.
Settlement not enforced where record shows lawyer did not have "clear and unequivocal" authority from client. [Added 4/14/06] -- Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. 1st DCA 2006).
Law firm's alleged ethical violation did not support claim for tortious interference with another lawyer's attorney-client relationship. [Added 4/11/06] -- Loreen I. Kreizinger, P.A. v. Sheldon J. Schlesinger, P.A., 925 So.2d 431 (Fla. 4th DCA 2006).
Fraud or similar "bad" acts by defendant needed in order for lawyer to maintain action for tortious interference with attorney-client relationship. [Added 2/3/2006] -- Ferris v. South Florida Stadium Corp., 926 So.2d 399 (Fla. 3d DCA 2006).
Without "clear and unequivocal grant of authority" settlement agreement entered by lawyer for client is unenforceable. [Added 11/14/04] -- Sharick v. Southeastern University of the Health Sciences, Inc., 891 So.2d 562 (Fla. 3d DCA 2004).
Tortious interference claim lies where complaint alleged fraud or collusion to deprive law firm of fee, but law firm cannot forbid client to settle without firm's approval. [Added 10/29/04] -- Ellis Rubin, P.A. v. Alarcon, 892 So.2d 501 (Fla. 3d DCA 2004).