sunEthics 

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

Florida - CANDOR TOWARD THE TRIBUNAL



Third DCA orders lawyer to show cause why he should not be sanctioned for filing briefs that violate rules regarding candor to court, attacks on integrity of judiciary, and frivolous filings. [Added 10/5/18]
The Third DCA issued an order to show cause why Lawyer should not be sanctioned for violations of ethics and procedural rules.
The court’s order stated that there was a reasonable basis to conclude that Lawyer violated Rule 4-3.3(a)(3) (candor to tribunal) because his 50-page initial brief and 10-page reply brief failed to disclose controlling adverse law (the Buset case).  The court noted that Lawyer “was counsel of record in Buset (in both the trial court and on appeal), and thus was fully aware of Buset’s holding and its binding nature on the trial court and the panel of this court.  Indeed, the trial court expressly and affirmatively relied on Buset for its ruling on a central legal issue presented in this case.”  The appeals court pointed out that Lawyer could have argued that Buset was inconsistent with Florida Supreme Court precedent, but he was ethically required “to cite and acknowledge Buset, given its binding and adverse nature.”
Lawyer also peppered his filings with comments regarding the trial court and the appeals court that may have violated Rule 4-8.2(a) (false or reckless statements regarding judges’ qualifications and integrity).  Lawyer’s “withering attack on the judiciary” included statements to the effect that the court was “ignoring established Florida Supreme Court law to benefit bad corporate citizens,” that the court was “acting illegally,” that courts were “covering up for banks,” and that it was “easy to win when the game is rigged.”
The appellate court further found that there was a reasonable basis to conclude that Lawyer violated the procedural rules regarding proper motions for rehearing (Fla.R.App.P. 9.330(a)) and the filing of motions that are frivolous or in bad faith (Fla.R.App.P. 9.410(a)). Aquasol Condominium Ass’n, Inc. v. HSBC Bank USA, __ So.3d __ (Fla. 3d DCA, No. 3D17-352, 9/26/2018), 2018 WL 4609002.


First DCA criticizes counsel’s lack of candor in workers’ compensation appeal.  [Added 6/5/16]
After an adverse order on a constitutional challenge to the workers’ compensation attorney’s fee statutes, claimant’s trial counsel withdrew and claimant voluntarily dismissed the case.  The employer/carrier was granted prevailing-party costs.  Through his trial counsel, claimant appealed the cost order.  Counsel, however, “attempted to use this cost appeal to gain a second presentation of his argument concerning the retainer and fee order and, at every opportunity Appellant’s counsel had prior to filing the initial brief, they failed to make it clear to this court that the appeal solely involved the fee order.”
            The First DCA affirmed the cost order and reprimanded claimant’s counsel for lack of candor to the court.  “In our original opinion in this case, we sanctioned Appellant’s counsel for their lack of candor by requiring them to pay the fees incurred by Appellees in this appeal.  Upon reconsideration, however, we determine that the admonishment in this opinion is a sufficient sanction.” O’Connor v. Indian River County Fire Rescue / Johns Eastern Company, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D15-4986, 8/2/2016) (on rehearing), 2016 WL _______.


Party’s “foolish” and “astounding negligence” regarding missing promissory note might warrant sanctions, but does not rise to level of fraud upon the court.  [Added 5/12/15] -- Deutsche Bank National Trust Co. v. Avila-Gonzalez, 164 So.3d 90 (Fla. 3d DCA 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’s failure to confess error regarding the scope of a disqualification order against opposing counsel is treated as “a self-evident violation” of Rule of Professional Conduct 4-3.3(a)(3) and leads to sanctions.
[Added 11/29/14] -- Lieberman v. Lieberman, 160 So.3d 73 (Fla. 4th DCA 2014).

Third DCA finds fundamental error and reverses judgment obtained through material misrepresentations by defendants’ counsel.
  [Added 11/21/13]  -- BAC Home Loans Servicing, Inc. v. Headley, __ So.3d __ (Fla. 3d DCA, No. 3D12-1560, 11/20/2013), 2013 WL 6097221.


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).


Lack of candor toward tribunal thrusts "dagger into the heart of the rule of law."  [Added 9/16/13]  -- Briarwood Capital v. Lennar Corp., 125 So.3d 291 (Fla. 3d DCA 9/11/2013).


On rehearing, Fourth DCA affirms trial court’s dismissal of case for fraud on the court.  [Added 8/12/13] -- Herman v. Intracoastal Cardiology Center, 121 So.3d 583 (Fla. 4th DCA 8/7/2013) (on rehearing).


Court abused discretion in dismissing complaint based on alleged fraud on the court.  [Added 12/31/12]  --  Rocka Fuerta Construction Inc. v. Southwick, Inc., 103 So.3d 1022 (Fla. 5th DCA 2012).

Third DCA discusses need for candor to the court in ex parte proceedings.  [Added 5/11/12]  --   Velasquez v. Ettenheim, 89 So.3d 981 (Fla. 3d DCA 2012).

Fourth DCA criticizes lawyer for an "egregiously false" statement in reply brief.  [Added 5/2/11]  --  Pamphile v. State, 65 So.3d 107 (Fla. 4th DCA 2011).

Florida Supreme Court disbars rather than suspends lawyer who practiced while suspended, with 3 concurring justices criticizing conduct of Bar prosecutor.  [Added 2/5/11]  --   Florida Bar v. Lobasz, 64 So.3d 1167 (Fla. 2011).

Florida Bar Board of Governors adopts advisory opinion allowing lawyers to represent criminal defendant who is proceeding under false name.  [Added 6/3/09]
At its May 2009 meeting the Florida Bar Board of Governors adopted a revised version of Florida Ethics Opinion 90-6 (Reconsideration).  The headnote accompanying the opinion describes its conclusions as follows:A lawyer who learns that a criminal defendant is proceeding under a false name before the lawyer agrees to represent the criminal defendant who cannot persuade the client to correct the name must decline representation.  A lawyer who learns that a criminal defendant who is an existing client is proceeding under a false name must withdraw from representation and must admonish the client not to commit perjury, but cannot disclose the client’s use of the false name to the court unless the client makes an affirmative misrepresentation to the court regarding the name.
The opinion addresses the lawyer's obligation if the court will not permit withdrawal:  "If the lawyer learns of the false name after representation has begun, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name.  . . .  If the client refuses to disclose the information and insists that the client will maintain the false name throughout the case, the lawyer must move to withdraw from the client's representation.  . . .  The lawyer must counsel the client not to commit perjury.  . . .  If the court declines to permit withdrawal, the lawyer must continue the representation.  . . .  The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true name."  [Emphasis added; citations omitted.]    Florida Ethics Opinion 90-6 (Reconsideration) as adopted by the Board differed from the version previously approved by the Florida Bar Professional Ethics Committee, which would have interpreted Rule 4-3.3, Florida Rules of Professional Conduct, to require the lawyer to disclose that the client was proceeding under a false name.  The opinion adopted by the Board does not explain why continuing to knowingly represent a client who is proceeding under a false name would not be considered a fraud on the court under Rule 4-3.3.

"High-low" agreement not prohibited as matter of public policy and should not have been disclosed to jury.  [Added 3/15/07]  --  Gulf Industries, Inc. v. Nair, 953 So.2d 590 (Fla. 4th DCA 2007).

Lawyer sanctioned for failing to inform appellate court that matter on appeal had been settled.  [Added 2/28/05]  --  Merkle v. Guardianship of Jacoby, 912 So.2d 593 (Fla. 2d DCA 2005).