Covering legal ethics, judicial ethics, bar admissions in Florida, Tennessee, and nationally.  See our Subject Index to past postings.


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).