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

Florida - FILES

Mandamus lies to compel public defender to provide former client with copies of documents, including recordings, prepared at public expense. [Added 8/29/18]
Defendant was represented by the Public Defender’s Office (“PD”).  After the case, Defendant requested from the PD copies of certain CDs and DVDs that he alleged had been prepared at public defense.  He petitioned for a writ of mandamus to compel production.  The trial court summarily denied the petition on the ground “that he had no ‘pending’ prosecution and ‘the records of the Public Defender’s Office are not part of the judicial branch record, and are therefore not subject to release by [the circuit] court.’”  Defendant appealed.
The Fifth DCA reversed for a determination whether the requested records were prepared at public expense.  “Because a public defender is an ‘official,’ mandamus is an appropriate remedy to compel the public defender to provide to a former client copies of record documents prepared at public expense.  . . .  Moreover, record documents that were prepared at public expense on behalf of an indigent defendant must be provided to him or her without charge for copying.”  (Citations omitted.)  Kimbrough v. State, __ So.3d __ (Fla. 5th DCA, No. 5D18-608, /17/2018), 2018 WL 3946052.

Court required to hold evidentiary hearing when convicted defendant petitioned for writ of mandamus to require appointed appellate counsel to provide record on appeal and relevant trial transcripts. [Added 2/18/17]
Defendant filed a petition for writ of mandamus to compel his court-appointed trial appellate counsel to provide him with “a copy of the record on appeal, all trial transcripts, and any other documents related to his direct appeal that were obtained at public expense.”  The court issued an order to show cause that directed counsel to provide the materials or show cause why the relief should not be granted.  Counsel responded that he had no independent recollection regarding the appeal and that he did not have, and did not recall having, the requested records. Defendant did not give up, replying with exhibits that were "inconsistent with defense counsel's representations."  Ultimately, however, the trial court denied the petition.
The Fourth DCA reversed and remanded for an evidentiary hearing.  “[T]he trial court erred in failing to conduct an evidentiary hearing on the contested issue of whether defense counsel had the requested materials in his possession. Appellant’s exhibits showed that defense counsel did in fact possess the record on appeal and the trial transcripts at one point, but wanted appellant to pay the costs of mailing the record and transcripts. Moreover, defense counsel’s unsworn allegation that he was not in possession of the requested materials was insufficient to show that there was no contested issue of fact.” Hollis v. Massa, __ So.3d __ (Fla. 4th DCA, 4D16-1712, 1/25/2017), 2017 WL 363152.

Court departed from essential requirements of law in ordering law firm to give former client immediate access to firm’s files, despite firm’s assertion of retaining liens on files.  [Added 8/6/15]
Law Firm represented Condominium Association.  When the Association’s board of directors changed members, the Association hired new counsel.  Law Firm asserted retaining liens over its files in 5 matters.  The Association filed suit seeking access to the files.  “Following a five minute motion calendar hearing at which no testimony was taken and during which the parties disputed that the law firm had been paid, the court below entered an order granting immediate access to all of the files being held by the firm.”  Law Firm petitioned for certiorari review.
The First DCA granted the petition and quashed the trial court’s order.  Citing case law, the appellate court stated:  “It is well established that in this state an attorney has a right to a retaining lien on all of the client’s property in the attorney’s possession, whether related to only one specific matter, until the attorney is paid . . .”  A law firm asserting a valid retaining lien may retain the property in question until it has been paid “or, if the if the client can demonstrate a pressing need for the property, until adequate security for the payment has been posted.  Here, however, the trial court made no determination regarding the validity of Law Firm’s retainer agreements or its retaining liens, nor did it determine whether the firm was paid.  “[A]bsent such determinations, no order compelling the law firm to hand over its files may be entered without the requisite showing of pressing necessity and the posting of adequate security.  Anything less amounts to a departure from the essential requirements of the law which will cause irreparable harm by nullifying the law firm’s retaining liens.” Conde & Cohen, P.L. v. Grandview Palace Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1109, 8/5/2015.

Court clerk, rather than public defender, has duty to provide indigent defendant with paper copy of record on appeal. [Added 4/16/14]
Defendant appealed her criminal conviction. The public defender’s office filed a motion to compel the clerk of court to provide Defendant with a paper copy of the record on appeal. The clerk had provided a paper copy of some items but provided the rest of the material on a computer disk. Apparently the Department of Corrections does not allow incarcerated defendants to receive computer disks.
The Second DCA noted the absence of definitive authority regarding who must prepare the paper record for an indigent represented defendant. The court, however, determined that the clerk’s office bore the responsibility. Due to the “rapid transition to electronic records in the courts of this state and the need to resolve this issue on a comprehensive basis,” the appeals court certified this question of great importance to the Florida Supreme Court: “In a criminal appeal, is the Clerk of the lower tribunal required to provide a paper copy of the record on appeal to an indigent defendant”? Lewis v. State, __ So.3d __ (Fla. 1st DCA, No. 1D13-4869).

Third DCA supports lawyers’ claim of retaining lien on client papers, rejecting argument that claim should fail because there were other avenues for payment. 
[Added 11/14/13]  -- Fox v. Widjaya, __ So.3d __ (Fla. 3d DCA, No. 3D13-2548, 11/6/2013), 2013 WL 5927583. 

Former client of Office of Criminal Conflict and Civil Regional Counsel is entitled to copies of discovery materials at no charge.  [Added 8/19/13]  -- Roland v. State, 120 So.3d 103 (Fla. 2d DCA 8/14/2013). 

Court discusses what items from case file that indigent prisoner’s former publicly-paid counsel must provide to him for free.  [Added 8/11/12]  --  Brown v. State, 93 So.3d 1194 (Fla. 4th DCA 2012). 

Public defender ordered to provided former client with free copies of crime scene photos from file.  [Added 1/3/11]  --  Morse v. State, 50 So.3d 750 (Fla. 2d DCA 2010). 

When convicted defendant files mandamus petition seeking materials from file, trial court must order response from trial counsel before ruling on petition.  [Added 4/20/10]  --  Raymond v. State, 31 So.3d 946 (Fla. 2d DCA2010). 

Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred.  [Added 4/1/10]  -- Brickell Place Condo Ass'n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So.3d 287 (Fla. 3d DCA 2010). 

Trial court erred in ordering lawyer to produce his file on separate, unrelated case in which he was representing same client.  [Added 4/1/10]  --  Toledo v. Publix Super Markets, Inc., 30 So.3d 712 (Fla. 4th DCA 2010). 

Lawyer is not required to produce documents that he does not have.  [Added 7/29/05]  -- Wells v. Office of Public Defender, 907 So.2d 1247 (Fla. 3d DCA 2005). 

Mandamus does not lie to require court-appointed lawyer to provide file material to former criminal defense client at no charge (with certain limited exceptions).  [Added 3/27/04]  -- Potts v. State, 869 So.2d 1223 (Fla. 2d DCA 2004). 

Retaining lien on former client's file trumps discovery demand by former client in legal malpractice case.  [Added 12/9/03]  -- Foreman v. Behr, 866 So.2d 705 (Fla. 2d DCA 2003).