Florida - LAW FIRMS
Saying “what’s sauce for the goose is sauce for the gander,” Second DCA reversed order compelling arbitration of lawyer’s counterclaims against his former law firm. [Added 11/13/17]
When Lawyer joined Law Firm as an associate he signed an employment agreement and received an employee handbook. Several years later he became a “profit partner” with the Firm and signed a Partnership Agreement that included an arbitration clause. After Lawyer left Law Firm, the Firm sued him. Lawyer counterclaimed. Law Firm moved to dismiss the counterclaims on the ground that they were subject to arbitration. Lawyer objected, arguing that the Firm had waived any right to arbitration because it brought suit on claims that were based on the Partnership Agreement. The Firm countered that the claims in its suit were based on the employment agreement and not the Partnership Agreement. The trial court granted the motion to dismiss the counterclaims, ruling that they “fell squarely within the ambit of the arbitration clause.”
The Second DCA reversed. Several of the claims in the suit filed by Law Firm fell within the scope of the Partnership Agreement’s arbitration clause. “By electing to sue and pursue relief in the trial court on arbitrable claims arising out of or relating to the Partnership Agreement, [Law Firm] waived its right to seek arbitration.” The Firm’s “decision to sue in state court was adverse to its insistence that [Lawyer]’s counterclaims, founded upon the same Partnership Agreement, be submitted to arbitration. What is sauce for the goose is sauce for the gander.” Chaikin v. Parker Waichman LLP, __ So.3d __ (Fla., 2d DCA, No. 2D16-4883, 10/22/2017), 2017 WL 4518527.
Under Rule 4-3.4(b), fact witnesses may be paid “reasonable compensation” for “preparing for, attending, and testifying at proceedings,” including assistance with case and discovery preparation. [Added 10/30/17]
Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party. Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement. Antaramian and the third party settled, with each party dropping its claims. Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery. TPI sued Antaramian for breach of contract.
The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement which provided in part: “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death. The award included fees for litigating the amount of fees to which Hahn was entitled. TPI appealed.
The Second DCA affirmed. “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees. . . . However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.” The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.” The appeals court declined to rewrite the contract to relieve TPI of its obligation.
The court also rejected TPI’s argument that Hahn was not entitled to prevailing party fees “because Antaramian improperly paid expert witness fees to fact witnesses.” Antaramian paid more than the statutory $5 per day to fact witnesses. Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.” The Rule does not conflict with F.S. 92.142, regarding the state’s payment to witnesses. “The statute restricts payments to witnesses for their attendance and thus presumably their actual testimony at trial. But the rule addresses payments for entirely different and compensable items: witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony. Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness's time spent in responding to discovery and appearing at depositions.” (Footnote omitted.)
The court certified the following question to the Florida Supreme Court as one of great public importance: “Does Rule 4-.34(b) of the Rules Regulating The Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?” Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 4798944.
Firm had duty to have sufficient procedures to ensure timely receipt of orders, and in using email system without safeguards or oversight firm could not claim excusable neglect under Fla.R.Civ.P. 1.540 when it failed to timely appeal emailed order it allegedly did not receive. [Added 10/18/17]
A trial court rendered an order assessing fees against Law Firm’s client. The order was emailed to the mail addresses designated by each party’s counsel. The clerk’s records showed that the email sent to Law Firm was accepted by the recipient server. Law Firm, however, claimed that it never received the emailed order. Accordingly, Law Firm’s client missed the deadline to appeal the order. Law Firm filed a motion for relief from judgment under Fla.R.Civ.P. 1.540(b), alleging excusable neglect.
A consultant who had provided IT services for Law Firm testified that the Firm’s system “was configured to drop and permanently delete emails perceived to be spam without alerting the recipient that the email was deleted.” He had advised the Firm against this. The Firm rejected the consultant’s recommendation to hire a third-party vendor to handle spam filtering “because [the Firm] did not want to spend the extra money.” The Firm also rejected his recommendation to get an online backup system for about $700 to $1200 per year. The consultant eventually ceased working for the Firm “because the firm rejected his recommendations.”
An expert witness testified that Law Firm “did not properly implement and utilize its email filtering system.” He understood that the Firm’s email system “was set to drop and delete emails identified as spam.” The expert stated that, if the Firm was his client and wanted to implement such a system, “he would require the client to sign a waiver exonerating him from responsibility.”
The trial court denied the motion for relief from judgment. The First DCA affirmed, concluding that no excusable neglect was demonstrated. The appeals court stated that, based on the testimony, the trial court could conclude that [Law Firm] made a conscious decision to use a defective email system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect.” See, e.g., Bequer v. Nat’l City Bank, 46 So.3d 1199 (Fla. 4th DCA 2010) (reversing an order setting aside a default final judgment based on excusable neglect where the bank’s inaction was not the result of a ‘system gone awry,’ but rather of a ‘defective system altogether’).”
The court concluded: “Counsel has a duty to have sufficient procedures and protocols in place to ensure timely notice of appealable orders. This includes use of an email spam filter with adequate safeguards and independent monitoring of the court’‘s electronic docket. In cases where rendition of an appealable order has been delayed for a significant period of time, it might also include the filing of a joint motion for a case management conference to ensure that the order has not slipped through the cracks. [Law Firm] made no effort to do any of these things, reflecting an overall pattern of inaction and disengagement. In short, there was an absence of ‘any meaningful procedure in place that, if followed, would have avoided the unfortunate events that resulted in a significant judgment against’ [Law Firm’s client].” Emerald Coast Utilities Authority v. Bear Marcus Point, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D15-5714, 10/6/2017) (on rehearing), 2017 WL 4448526.
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] -- Conde & Cohen, P.L. v. Grandview Palace Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1109, 8/5/2015.
Court erred in dismissing tort claims against law firm on basis of economic loss rule. [Added 8/5/15] -- Bornstein v. Marcus, __ So.3d __ (Fla. 4th DCA, No. 4D13-4098, 7/22/2015), 2015 WL 4461117.
Fourth DCA allows financial discovery as to relationship between plaintiff’s law firm and treating physician regardless of whether firm referred plaintiff to the doctor. [Added 8/28/14] -- Brown v. Mittelman, __ So.3d __ (Fla. 4th DCA, No. 4D14-1748, 8/27/2014).
Law firm's financial relationship with client's treating physician subject to discovery on issue of bias. [Added 3/10/14] -- Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, __ So.3d __ (Fla. 4th DCA, No. 4D13-4016, 3/5/2014).
Introduction of letter of protection language indicating that doctor would reduce bill if patient/client got reduced recovery did not violate collateral source rule. [Added 12/2/13] -- Smith v. Geico Cas. Co., 127 So.3d 808 (Fla. 2d DCA 11/27/2013).
Florida court has personal jurisdiction over out-of-state client who never came to Florida but allegedly breached contract with Florida law firm. [Added 10/7/13] -- Metnick & Levy, P.A. v. Seuling, 123 So.3d 639 (Fla. 4th DCA 10/2/2013).
Subordinate lawyers remain responsible for complying with ethics rules even when acting at their superior’s direction. [Added 9/16/13] -- Briarwood Capital v. Lennar Corp., 125 So.3d 291 (Fla. 3d DCA 2013).
Trial court lacked authority to impose monetary sanctions on party for filing Bar complaints against opponent’s lawyers. [Added 8/26/13] -- Kass Shuler, P.A. v. Barchard, 120 So.3d 165 (Fla. 2d DCA 8/23/2013).
Litigation privilege applies to protect lawyers from claims for abuse of process and malicious prosecution. [Added 7/23/13] -- Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 7/17/2013).
Court erred in ruling on venue motion before determining “true nature” of law firm’s claim against client. [Added 7/13/13] -- Aboul-Hosn v. Frost Van Den Boom & Smith, P.A., 117 So.3d 445 (Fla. 2d DCA 7/10/2013).
Lawyers whose bookkeeper embezzled millions in client funds are disbarred for trust accounting violations and their conduct in responding to the problem. [Added 3/30/13] -- Florida Bar v. Rousso, 117 So.3d 756 (Fla. 3/28/2013).
Court erred in granting new trial in a suit against lawyer after ruling that breach of fiduciary duty cannot be waived. [Added 3/26/13] -- Band v. Libby, 113 So.3d 113 (Fla. 2d DCA 5/22/2013) (on rehearing).
Board of Governors advises that lawyers may permit trusted, properly supervised nonlawyers to file documents via E-Portal using the lawyer's access credentials. [Added 12/14/12] --
In December 2012 the Florida Bar Board of Governors approved Florida Ethics Opinion 12-2. The opinion concludes that it is ethically permissible for a lawyer to provide his or her access credentials to the E-Portal to trusted, properly supervised nonlawyer employees so that the employees may electronically file court documents on the lawyer's behalf. The lawyer is ultimately responsible for the filing. Opinion 12-2 also advises that the lawyer should immediately change the lawyer’s password if the nonlawyer leaves the lawyer’s employ or shows untrustworthiness in the use of the E-Portal.
Lawyer working for law firm as outsourced independent contractor is not “associated” with firm for purposes of imputation of conflicts. [Added 10/24/12] -- Brown v. Fla. Dept. of Highway Safety and Motor Vehicles, 2012 WL 4758150 (N.D. Fla. 2012).
Law firm sued for malpractice and other claims could compel arbitration based on co-defendants’ arbitration agreement with plaintiff. [Added 5/18/12] -- Lash & Goldberg LLP v. Clarke, 88 So.3d 426 (Fla. 4th DCA 2012).
Law firm alleged sufficient facts to go forward on claims against another firm for tortious interference with its contract with client. [Added 4/6/12] -- Swope Rodante, P.A. v. Harmon, 85 So.3d 508 (Fla. 2d DCA 2012).
Court did not err in reducing punitive damages award in legal malpractice case or excluding testimony that lawyer was disbarred for conduct in unrelated case. [Added 12/26/11] -- Young v. Becker & Poliakoff, P.A., 88 So.3d 1002 (Fla. 4th DCA 2012) (on rehearing).
Attorney General lacked authority under FDUTPA to issue investigative subpoena to law firm seeking information on its representation of lenders in mortgage foreclosures. [Added 12/15/11] -- Law Office of David Stern, P.A. v. Dept. of Legal Affairs, 83 So.3d 847 (Fla. 4th DCA 2011).
Civil investigative subpoena to law firm is quashed because firm's mortgage foreclosure services were not "trade or commerce" under FDUTPA. [Added 4/28/11] -- Florida Office of Attorney General v. Shapiro & Fishman, LLP, 59 So.3d 353 (Fla. 4th DCA 2011).
Lawyer who left a law firm and opened his own practice but earned no income from it may be eligible for unemployment benefits. [Added 4/25/11] -- Bryant v. Florida Unemployment Appeals Comm'n, 61 So.3d 1181 (Fla. 1st DCA 2011).
Class action certification upheld in case accusing law firm of violating consumer collection and deceptive trade practices laws. [Added 1/3/11] -- Law Offices of David J. Stern, P.A. v. Banner, 50 So.3d 1221 (Fla. 4th DCA 2010).
Lawyer's agreement not to represent anyone against the law firm that formerly employed him does not violate public policy. [Added 1/3/11] -- Alan B. Garfinkel, P.A. v. Mager, 57 So.3d 221 (Fla. 5th DCA 2010).
FLORIDA BAR APPROVES OPINION REQUIRING LAWYERS TO PROTECT CONFIDENTIALITY OF CLIENT INFORMATION STORED ON DEVICES LIKE COPIERS, SCANNERS, FAX MACHINES, CELL PHONES, AND FLASH DRIVES. [Added 12/16/10]
In December 2010 the Florida Bar Board of Governors approved Florida Ethics Opinion 10-2, which had been promulgated earlier in the year by the Bar's Professional Ethics Committee. Opinion 10-2 addresses the ethical obligations of a lawyer who chooses to use electronic devices that store information. These "Devices" may include "computers, printers, copiers, scanners, cellular phones, personal digital assistants ('PDA’s'), flash drives, memory sticks, facsimile machines and other electronic or digital devices." The opinion discusses ethical duties of competence (citing Rule 4-1.1), confidentiality (Rule 4-1.6), and supervision (Rule 4-5.3). Significantly, the opinion applies these duties to situations and circumstances that arise outside of a lawyer's office, such as hotels and copy centers.
Competence. Opinion 10-2 states: "If a lawyer chooses to use these Devices that contain Storage Media, the lawyer has a duty to keep abreast of changes in technology to the extent that the lawyer can identify potential threats to maintaining confidentiality. The lawyer must learn such details as whether the Device has the ability to store confidential information, whether the information can be accessed by unauthorized parties, and who can potentially have access to the information. The lawyer must also be aware of different environments in which confidential information is exposed such as public copy centers, hotel business centers, and home offices. The lawyer should obtain enough information to know when to seek protection and what Devices must be sanitized, or cleared of all confidential information, before disposal or other disposition. Therefore, the duty of competence extends from the receipt, i.e., when the lawyer obtains control of the Device, through the Device’s life cycle, and until disposition of the Device, including after it leaves the control of the lawyer."
Confidentiality. Opinion 10-2 states: "A lawyer must ensure confidentiality by taking reasonable steps to protect all confidential information under the lawyer’s control. Those reasonable steps include identifying areas where confidential information could be potentially exposed."
Duty to supervise others. Opinion 10-2 states: "A lawyer’s supervisory responsibility extends not only to the lawyer’s own employees but over entities outside the lawyer’s firm with whom the lawyer contracts to assist in the care and maintenance of the Devices in the lawyer’s control. If a nonlawyer will have access to confidential information, the lawyer must obtain adequate assurances from the nonlawyer that confidentiality of the information will be maintained." Importantly for lawyers, these ethical obligations extend to "sanitization" of Devices no longer being used, such as old copiers or discarded cell phones. "A lawyer has a duty to obtain adequate assurances that the Device has been stripped of all confidential information before disposition of the Device. If a vendor or other service provider is involved in the sanitization of the Device, such as at the termination of a lease agreement or upon sale of the Device, it is not sufficient to merely obtain an agreement that the vendor will sanitize the Device upon sale or turn back of the Device. The lawyer has an affirmative obligation to ascertain that the sanitization has been accomplished, whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office, or by other similar means. Further, a lawyer should use care when using Devices in public places such as at copy centers, hotel business centers, and outside offices where the lawyer and those under the lawyer’s supervision have little or no control. In such situations, the lawyer should inquire and determine whether use of such Devices would preserve confidentiality under these rules."
The headnote published with Opinion 10-2 summarizes the opinion this way: "A lawyer who chooses to use Devices that contain Storage Media such as printers, copiers, scanners, and facsimile machines must take reasonable steps to ensure that client confidentiality is maintained and that the Device is sanitized before disposition, including: (1) identification of the potential threat to confidentiality along with the development and implementation of policies to address the potential threat to confidentiality; (2) inventory of the Devices that contain Hard Drives or other Storage Media; (3) supervision of nonlawyers to obtain adequate assurances that confidentiality will be maintained; and (4) responsibility for sanitization of the Device by requiring meaningful assurances from the vendor at the intake of the Device and confirmation or certification of the sanitization at the disposition of the Device."
Florida Supreme Court disciplines lawyer who allowed non-lawyer to have signatory authority on escrow account. [Added 6/10/10] -- Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010).
Civil theft judgment against lawyer who left law firm and took clients with him is reversed. [Added 2/10/10] -- Winters v. Mulholland, 33 So.3d 54 (Fla. 2d DCA 2010).
Venue of legal malpractice case based on disclosure of confidential information is proper not where disclosure took place but where resulting damage occurred. [Added 10/21/09] -- Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111 (Fla. 2d DCA 2009).
Law firm not responsible for losses caused by one of its lawyers who acted outside scope of employment and defrauded "investors." [Added 10/9/09] -- Saralegui v. Sacher, Zelman, Van Sant, Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009).
FLORIDA BAR BOARD OF GOVERNORS APPROVES GUIDELINES REGARDING "OFFSHORING" OF LEGAL SERVICES [Added 4/7/09]
In April 2009 the Florida Bar Board of Governors approved "Guidelines Regarding Offshoring Legal Services." The Guidelines were developed by the Bar's Professional Ethics Committee. The Board had asked the Committee to further study the issue of outsourcing legal services, particularly to foreign countries. In response, the Committee prepared the Guidelines to accompany Florida Ethics Opinion 07-2.
Florida Commission on Ethics renders opinion on possible voting conflict of non-lawyer law firm member who acts as a lobbyist. [Added 6/25/08] -- Florida Commission on Ethics Opinion 08-13.
Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal. [5/9/08] -- Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008).
Florida Supreme Court discusses whether lawyers who share space are a "firm" for conflicts imputation purposes. [Added 11/19/07] -- Connor v. State, 979 So.2d 852 (Fla. 2007) (revised opinion).
Florida Commission on Ethics advises that law firm can be "lobbying firm" under state ethics law if even one firm lawyer is registered to lobby. [Added 6/7/07] -- Florida Commission on Ethics Opinion 07-08.
Misconduct in dealing with his law firm nets lawyer 91 day suspension. [Added 7/12/05] -- The Florida Bar v. Shankman, 908 So.2d 379 (Fla. 2005).
Lawyer's moonlighting and subsequent denial results in loss of job and 30 day suspension from practice. [Added 6/2/05] -- The Florida Bar v. Kossow, 912 So.2d 544 (Fla. 2005).
No cause of action under Whistle-blower Act for lawyer allegedly fired from law firm for reporting another firm lawyer to State Attorney. [Added 1/20/05] -- Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787 (Fla. 2d DCA 2005).
Theft from employer law firm is not just "moonlighting;' improper to request that potential complainant not provide assistance or evidence to Florida Bar. [Added 5/31/03] -- The Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003).