Florida - PROFESSIONALISM
In affirming despite apparently improper closing argument that was not objected to, Fifth DCA emphasizes that it did not condone argument. [Added 8/21/17]
Plaintiff prevailed in a jury trial in an auto accident case. Defendant contended on appeal, inter alia, that he should have been granted a new trial due to improper closing argument by Plaintiff’s counsel. The Fifth DCA affirmed on this ground, noting that Defendant had failed to object.
In a footnote, the appeals court made it clear that it did not approve of the arguments: “We emphasize that our affirmance on this issue should not be interpreted as condoning plaintiff’s counsel’s conduct in his closing argument. Rather, we find that the several unobjected-to comments do not rise to the level of egregiousness warranting a new trial as outlined by the Florida Supreme Court in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1031 (Fla. 2000).” Rasinski v. McCoy, __ So.3d __ (Fla. 5th DCA, No. 5D15-4423, 8/4/2017), 2017 WL 3318712.
In reversing substantial plaintiff’s verdict on other grounds, Fourth DCA expresses concern about comments made by plaintiff’s counsel during opening and closing arguments. [Added 7/27/17]
Plaintiff sued Defendant for alleged negligence. The jury returned a $3.6 million net verdict for Plaintiff, but the Fourth DCA reversed on the ground that the trial court erred in not directing a verdict for Defendant on the issue of negligence.
In view of its reversal on other grounds, the appeals court did not reach another asserted error relating to the trial court’s failure to grant a mistrial due to allegedly impermissible arguments by plaintiff’s counsel during opening and closing. The court, however, made it clear that it was not condoning such arguments.
“[W]e express our concern regarding several of the comments made by the plaintiff’s counsel during opening and closing arguments, and caution against their future use. The plaintiff’s counsel stated during opening that, ‘the reason why we are in this courtroom today is that this corporation has refused to accept any responsibility for its role in this death.’ After the trial court correctly sustained objections to this statement, the plaintiff’s lawyer doubled down, stating, ‘[t]hey will look at everyone else’s conduct but their own. And these are defenses that are just attempts to avoid responsibility.’ As the Third District Court of Appeal has declared, ‘[t]he law is clear that it is improper for an attorney to disparage an opposing party’s defense of a case or to suggest that a party should be punished for contesting a claim.’ . . . We recently reaffirmed this principle. . . . We thus find it inexplicable that counsel would so wantonly make statements opening the door for a mistrial, both in these statements made during opening, as well as in the ‘value of human life’ comments made during closing.” (Citations omitted.) Las Olas Holding Co. v. Demella, __ So.3d __ (Fla. 4th DCA, No. 4D16-231, 7/29/2017), 2017 WL 3085329.
Second DCA removes lawyer from case and refers him to Florida Bar for failing to comply with court orders and attendant delays. [Added 7/20/17]
Lawyer filed a notice of appeal in the Second DCA, but failed to pay the filing fee. The court issued 3 orders, to which Lawyer did not respond. After a show cause hearing following the court clerk’s refusal to make an indigency determination due to a deficiency in the application, the court denied a motion to allow Lawyer’s client to proceed as indigent. Lawyer was directed by the court to “expeditiously seek review of the clerk’s action and, if necessary, to seek appellate review. Lawyer did not respond.
Following further orders and inaction by Lawyer, the Second DCA set another show cause hearing. Lawyer “was unable to adequately explain his failure to comply” with the court’s orders. As a result, the court removed him from further representation in the appeal. Additionally, due to Lawyer’s “to comply with this court's directives and the attendant delays,” the court referred Lawyer to the Florida Bar “for investigation and initiation of such proceedings as may be appropriate.” Odhiambo v. State, __ So.3d __ (Fla. 2d DCA, No. 2D15-3506, 6/16/2017), 2017 WL 2615845.
Prosecutor’s comments during closing argument may have been “ill-advised” but did not warrant reversal. [Added 6/29/17]
Criminal Defendant was convicted. On appeal he asserted that the prosecutor made multiple impermissible arguments. “These statements include argument by the State that to accept the Defendant’s theory, you had to conclude that the officer ‘not only got all of that wrong, but so did the victims,’ that the officer ‘was completely wrong in his entire testimony of this case,’ and that the officer ‘completely made up his turn of events.’ The State also noted during its closing argument that the Defendant is a ‘three-time convicted felon who’s also been convicted of lying, giving a false statement.’ Finally, the State argued to the jury ‘that [this crime] was committed by someone who thinks that they can get away with anything.’”
The Fourth DCA affirmed, distinguishing the cases relied upon by Defendant. “[T]o the extent the Defendant challenges the State’s reference to his prior conviction, the Defendant himself testified about his prior convictions during this trial. No new facts were introduced during closing as they were in Ruiz [v. State, 743 So.2d 1 (Fla. 1999)]. Further, the comments in Ruiz, Gore [v. State, 719 So.2d 1197 (Fla. 1998)], and Crew [v. State, 146 So.3d 101 (Fla. 5th DCA 2014)], as described by our supreme court, crossed the line of acceptable advocacy by a wide margin. In this case the prosecutor’s comments were perhaps ill-advised but did not reach that line.” Thompson v. State, __ So.3d __ (Fla. 4th DCA, No. 4D14-1466, 5/31/2017), 2017 WL 2350142.
Third DCA cautions prosecutors and judges regarding arguments asking jury to “do justice” for victim, but affirms because improper comments were not objected to. [Added 6/7/17]
Defendant was convicted of sexual activity with a child by a person in familial or custodial authority. On appeal he argued, inter alia, that the prosecutor improperly appealed to the jury’s sympathy for the victim during closing argument. Defense counsel did not object to the argument in question.
The Third DCA noted that the “do justice” type of arguments “have been uniformly condemned.” The court affirmed, however, because the offending arguments were not objected to and did not constitute fundamental error. The court went on to warn prosecutors: “[W]e caution prosecutors that these arguments must cease and remind opposing counsel and trial courts to be more vigilant in objecting to and precluding such arguments in the future. See Capron v. State, 948 So.2d 954, 956-57 (Fla. 5th DCA 2007) (finding that fundamental error in closing argument only ‘occurs when the prejudicial conduct, in its collective import, is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury’); see also Chandler v. State, 702 So.2d 186, 191 n.5 (Fla. 1997) (‘The prosecutor’s comment[s] . . . about Chandler and his counsel were thoughtless and petty, e.g., counsel engaged in ‘cowardly’ and ‘despicable’ conduct and Chandler was ‘malevolent . . . a brutal rapist and conscienceless murderer,’ but not so prejudicial as to vitiate the entire trial.’) (second omission in original).” Scott v. State, __ So.3d __ (Fla. 3d DCA, No. 3D15-2882, 5/3/2017), 2017 WL 1718804.
Third DCA affirms conviction despite improper closing arguments that were not objected to, but emphasizes that affirmance does not make prosecutor’s misconduct “awful but lawful.” [Added 4/24/17]
The Third DCA affirmed a conviction, concluding that the prosecutor’s improper closing arguments to which defense counsel did not object did not rise to the level of fundamental error. The court noted that when considering whether fundamental error occurred the analysis “must focus primarily on the prejudicial impact of the ‘message’ rather than on the unprofessionalism of the ‘messenger.’”
The court stated, however, that “we find it necessary to write to address once again another instance in which improper comments have been made by a prosecutor in the course of closing argument. In doing so, we wish to emphasize to counsel that our affirmance of the convictions in no way validates such misconduct nor somehow renders it merely ‘awful but lawful.’”
The court detailed the improper “Golden Rule” and “miscarriage of justice” arguments. The court concluded by lamenting the continued problem with unprofessional closing argument. “The concerns we express here are not new. Sadly, our appellate courts have for decades expressed consternation over the recurring misconduct of attorneys during closing arguments. . . . That such misconduct persists, despite these clarion calls, deepens our disquiet. The fact that the prosecutor’s misconduct has weathered the storm of our direct review, while certainly not beside the point, is also clearly not the entire point. We remind all attorneys of their solemn oath and their ethical obligation to the court, the justice system, and to the individuals and entities they represent. And, in particular, we remind prosecutors of the special obligation that accompanies their position . . .” Sampson v. State, __ So.3d __ (Fla. 3d DCA, No. 3D15-1662, 3/15/2017), 2017 WL 1018514.
After reversing convictions for other reasons, Third DCA comments on improper closing arguments by prosecution to prevent recurrence at retrial. [Added 4/17/17]
The Third DCA reversed two defendants’ convictions because of the “unintelligible condition” of the record. In remanding for a new trial, the court addressed “some of the improper comments made by the State during its closing argument, to ensure as best we can that such improper arguments are not repeated.”
The “most egregious” of the improper arguments concerned the prosecutor’s comments that the prosecutor was bound by an oath of truth while defense counsel was not. This argument “attacks and denigrates defense counsel, implying at the very least that defense counsel is not acting in good faith, and suggesting at the very worst that defense counsel lied to the jury – and that defense counsel was free to do so because he is not bound by the same obligation and professional oath as the prosecutor.”
The court also pointed out “that the prosecutor compared appellants to bank robbers Bonnie and Clyde, and to Willy Sutton (described by the prosecutor as a ‘famous bank robber’ in the 1920’s and 1930’s).” Additionally, the prosecutor told the jury that defense counsel was “blowing smoke in your face.”
The court concluded: “We do not seek to temper the prosecutor’s evident zeal, but only to ensure that such zeal is confined to the clear boundaries demarked by the evidence, the reasonable inferences therefrom, and the law applicable to the case. See Murphy v. Intern. Robotic Sys., Inc., 766 So.2d 1010, 1029 (Fla. 2000) (observing that the case law and the rules of professional conduct are ‘in place to ensure that juries render verdicts based on record evidence and applicable law, not based on impermissible matters interjected by counsel during closing argument.’) See alsoR. Regulating Fla. Bar 4-3.4(e) (providing: ‘A lawyer must not: . . . e) in trial, state a personal opinion about the credibility of a witness unless the statement is authorized by current rule or case law, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused.’)” Scala v. State, __ So.3d __ (Fla. 3d DCA, Nos. 3D111-1979, 3D11-1754, 3D11-1675, 3/15/2017), 2017 WL 1018487.
Prosecutor did not commit fundamental error by comparing criminal defendant and his co-defendants to “a pack of wolves” in closing argument. [Added 4/3/17]
Defendant was convicted of first degree murder. On appeal he argued that the prosecution committed fundamental error during its closing argument by comparing him and his co-defendants to “a pack of wolves.”
The First DCA affirmed. Courts have frequently found arguments that refer to defendants as animals to be improper. “But it is not enough for Williams to argue the comments were improper. He did not object below, meaning his burden now is to show the comments rose to the level of fundamental error. . . . In some instances, a prosecutor’s argument can be so prejudicial that a court will find fundamental error and award a new trial. . . . But a single, isolated reference to a “pack of wolves” is not enough to meet this daunting standard.” (Citations omitted.) Williams v. State, __ So.3d __ (Fla. 1st DCA, No. 1D16-1807, 3/27/2017), 2017 WL1134817.
Fifth DCA criticizes filing of motion for rehearing that was “inappropriate and meritless.” [Added 3/27/17]
After losing an appeal, Appellees filed a motion for rehearing. The Fifth DCA denied the motion, calling it “inappropriate and meritless.” The motion did what Fla.R.App.P. proscribes, which is re-arguing the merits of the case. The court pointed out that a motion for rehearing “is not a vehicle for counsel or the party to continue its attempts at advocacy.” (Citation omitted.) Appellees also “misuse[d] their motion by essentially seeking leave to amend their pleadings post-judgment and post-appeal.” Boardwalk at Daytona Development, LLC v. Paspalakis, __ So.3d __ (Fla. 5th DCA, No. 5D15-1944, 2/24/2017), 2017 WL 727671.
Fifth DCA reverses conviction and refers prosecutor to Florida Bar and local Professionalism Panel for “flood” of improper arguments that was so “deep, wide, and unrelenting” it “made a mockery of the constitutional guarantee of a fair trial.” [Added 3/7/17]
Defendant was convicted of lewd and lascivious molestation. He argued on appeal that he was denied a fair trial due to “egregious” improper argument by the prosecutor. Despite the fact that the improper argument was “compounded by defense counsel’s unexplained failure to object,” the Fifth DCA reversed.
Among the improper arguments made by the prosecutor were: referring to Defendant as a “pedophile” 7 times; using a “justice for the victim” closing argument; misstating evidence; calling Defendant a “liar;” “making nationalistic appeals to what sexual information the people of the United States do not want five year olds to have;” and ridiculing Defendant’s position with sarcasm. The court was critical of the prosecutor’s conduct, stating: “As we have stated for decades, we expect and require prosecutors, as representatives of the State, to refrain from engaging in inflammatory and abusive arguments, to maintain their objectivity, and to behave in a professional manner.” (Citation omitted.) The cumulative effect of the prosecutorial misconduct was fundamental error.
The court cautioned all participants in the criminal trial process: “Since there must be a retrial, we advise the attorneys who will prosecute and defend to carefully read our opinion and the many important cases which we have cited so that there will be no doubt where admirable advocacy ends and inappropriate, unfair closing argument begins. Armed with that knowledge, the prosecutor can zealously pursue justice, avoid snatching defeat from the jaws of victory, and dispense with a meaningful discussion with the Florida Bar or a local professionalism panel. Likewise, well informed defense counsel will be positioned to effectively advocate for Appellant by contemporaneously objecting to any perceived inappropriate arguments. Further, we note that trial courts have a duty, even without hearing any objection, to bring a swift and sure end to prosecutorial misconduct in closing argument, especially when it becomes as frequent and flagrant as in this trial.”
The court closed by referring the prosecutor to the Bar and the Professionalism Panel for further action. “[W]e also have a duty to take appropriate action concerning what we perceive to be several clear departures from professionalism and possible ethical violations on the part of the prosecutor. See Fla. Code of Jud. Conduct, Canon 3D(2); R. Regulating Fla. Bar 4–3.4(c), 4–3.4(e), & 4–3.5(a). If this argument had taken place in our court, we might have been able to take appropriate action by determining whether the prosecutor’s lapse in professionalism was intentional and deserving of some sanction or whether it would be better addressed by a strong rebuke from this court accompanied by directions for the prosecutor to become well educated on proper closing argument. However, we did not have that opportunity to directly address the attorney or the conduct. Accordingly, the action we take is to order the clerk of this court to provide the Florida Bar with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney who prosecuted this case on behalf of the State at the trial court level, so that the Bar or on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how best to address this lawyer and the unfortunate conduct.” Rodriguez v. State, __ So.3d __ (Fla. 5th DCA, No. 5D15-3622, 2/10/2017), 2017 WL 548649.
Third DCA criticizes prosecutor’s closing argument as unprofessional and calls for remedial actions by prosecutor’s office, but affirms conviction. [Added 3/4/17]
During closing argument the prosecutor engaged in improper argument, calling the trial a “circus” and telling the jury not to rely on what defense counsel said because counsel had “misrepresented the facts” and “fabricated” the defense. Defendant was convicted and appealed.
The Third DCA reversed. Defense counsel’s objections should have been sustained and curative instructions given. The court criticized the prosecutor’s conduct: “The Rules Regulating the Florida Bar, local codes of professionalism, and the reported decisions of all six state appellate courts in Florida demand a higher standard.” Noting that “[t]his is not a new problem,” the court suggested remedial measures: “Although the State Attorney’s Office prosecutes these cases, the regional office of the Attorney General of Florida is required to handle any resulting appeals. One imagines that improper argument of this kind might diminish if the prosecutor who created the issue at trial was required to research and write the appellee’s brief, and then argue the appeal here. In-service trainings between the two offices might also mitigate the problem.” (Footnote omitted.)
Despite the objectionable arguments, the court concluded that they did not constitute reversible error and affirmed. Mora v. State, __ So.3d __ (Fla. 3d DCA, No. 3D15-1434, 2/15/2017), 2017 WL 608287.
First DCA reverses $16 million verdict in tobacco case because plaintiff’s counsel exhibited “flagrant disregard for the bounds of proper argument.” [Added 3/2/17]
The First DCA reversed an almost $17 million verdict because, in closing argument, plaintiff’s counsel crossed the boundaries of proper argument “repeatedly, flagrantly, and often in defiance of the trial court’s admonishments.” The offending argument generally related to the defendant tobacco company’s “alleged failure to accept responsibility and admit wrongdoing.” It is improper to suggest to a jury that a defendant acts improperly by defending itself at trial or contesting damages. The appeals court noted that the arguments in question were “substantively identical to the comments condemned in” Cohen v. Philip Morris USA, Inc., 203 So.3d 942 (Fla. 4th DCA 2016), where a $2 million plaintiff’s verdict was reversed.
Among other things, plaintiff’s counsel “denigrated Reynolds as an unrepentant, anti-military, criminal predator, whom the jury must fight and destroy.” (Footnotes omitted.)
Although not all of the improper arguments were objected to by defense counsel, the “cumulative effect of preserved and unpreserved improper comments” was considered by the court. The court concluded that “[t]he depth and pervasiveness of these improper arguments compel reversal of this case for new trial.” R. J. Reynolds Tobacco Co. v. Robinson, __ So.3d __ (Fla. 1st DCA, No. 1D15-0989, 2/24/2017), 2017 WL 729818.
First DCA warns lawyers that strict compliance with court orders is expected and violations will not be tolerated. [Added 1/30/17]
Lawyer represented the employer/carrier in a workers’ compensation case. Lawyer obtained a 10-day extension in which to file the initial brief. The new due date was June 27. Despite that, Lawyer filed the brief on June 30. Along with the brief, Lawyer filed a motion to accept the brief as timely, but “offered no credible explanation” for violating the court’s order.
The court cautioned counsel not to engage in similar behavior: “This opinion shall serve as a reminder to all members of the Florida Bar that professional conduct and strict compliance with the orders of this Court are not only expected but are mandatory. As detailed in the ‘Notice to Attorneys and Parties’ issued June 27, 2014, extensions to file a brief served after the time has expired for serving the brief will generally not be granted absent a showing of good cause. The violation occurring here will not be tolerated in the future.” (Footnote omitted.) DHL Express, Inc. v. Machin, __ So.3d __ (Fla. 1st DCA, No. 1D16-1325, 1/10/2017), 2017 WL 89067.
Although prosecution made multiple “questionable comments” that read like a “primer for prosecutors entitled ‘What Not to Say During Closing Argument,’” conviction was affirmed because comments failed to rise to level of fundamental error. [Added 1/18/17]
Criminal Defendant was convicted. On appeal he argued that the State committed fundamental error in closing argument. The Fourth DCA noted that the prosecutor made several “questionable comments,” defense counsel objected to only one. Consequently, the other comments were reviewed to see if they rose to the level of fundamental error. The court concluded that they did not, and affirmed.
The appeals court stated that the transcript of the closing argument “reads like a primer for prosecutors entitled, ‘What Not to Say During Closing Argument’” (quoting from Augustine v. State, 143 So.3d 940, 941 (Fla. 4th DCA 2014), where it made the same observation about defense counsel’s argument). The court expressed its concern about “the over-the-top nature of these closing arguments,” which “(1) appealed to the jury’s emotions, (2) improperly bolstered its argument, (3) constituted personal opinion, and (4) misstated the jury’s obligation to find Appellant guilty beyond a reasonable doubt.” Robinson v. State, __ So.3d __ (Fla. 4th DCA, No. 4D14-4270, 1/4/2017), 2017 WL 33709.
Third DCA refers lawyer to Local Professionalism Panel as sanction for improperly abandoning appeal. [Added 10/24/16]
Lawyer and his clients failed to timely file an initial brief, failed to obey an order to file the order being appealed, and failed to obey an order to file a brief. Consequently, the case was dismissed and the Third DCA ordered Lawyer to show cause why he should not be sanctioned.
Lawyer responded that his clients decided to abandon the appeal and his failure to notify the court and opposing counsel was a “simple oversight.” The court did not accept this explanation, especially since other cases filed by Lawyer “have been dismissed by this court for either the failure to file an initial brief or failure to pay filing fees.” The court viewed Lawyer’s conduct as a violation of Rule 4-1.3 (diligence) and ordered a copy of its opinion sent to the Local Professionalism Panel for the Eleventh Circuit.
“In 2013, the Florida Supreme Court, acting on the recommendation of the Florida Commission on Professionalism, ordered each of Florida’s judicial circuits to set up a local professionalism panel – under an administrative order from each circuit’s chief judge – to handle professionalism complaints and address attorney conduct – such as the conduct described herein – which may not rise to the level of an allegation that could result in disciplinary action for unprofessional conduct. We conclude that referral of Appellants’ counsel, Lawrence J. Shapiro, Esquire (FBN: 796085), of Lawrence J. Shapiro & Associates, P.A., to The Eleventh Circuit’s Local Professionalism Panel is the proper course of action.” Nocari Investment, LLC v. Wells Fargo Bank, N.A., __ So.3d __ (Fla. 3d DCA, No. 3D16-1333, 10/19/2016), 2016 WL 6092069.
On rehearing en banc, Fourth DCA reverses $70 million judgment against tobacco defendants due to “repeated inflammatory arguments of plaintiff’s counsel.” [Added 10/3/16]
Sitting en banc on a motion for rehearing, the Fourth DCA reversed a $70 million plaintiff’s judgment in a tobacco case. The trial was trifurcated, with Phase II covering causation, comparative fault, compensatory damages, and entitlement to punitive damages. Based on the jury’s verdict, the trial court entered a judgment for plaintiff in excess of $70 million in compensatory and punitive damages.
The Fourth DCA initially affirmed, but responded to a motion for rehearing en banc by reversing and remanding for a new trial. “[T]he comments and argument of plaintiff’s counsel were so improper that their cumulative effect during the Phase II proceedings was such that the jury verdict was unduly based upon passion and prejudice.”
The appeals court summarized the improper arguments: “[T]he plaintiff’s counsel’s opening statement was overly argumentative and included comments chastising the tobacco companies for their failure to apologize. The closing argument included inflammatory remarks; statements evoking sympathy from the jury; inappropriate religious references; comments about the defendants not taking responsibility; attacks for electing to defend the case; and insinuations regarding the failure of the defendants’ corporate representatives to attend the trial. Taking into account all of the preserved objections to the improper comments in plaintiff’s counsel’s opening and closing as referenced above, the cumulative impact of these errors created an atmosphere of ‘win at all costs.’”
Although numerous objections to improper argument were sustained by the trial court, the Fourth DCA made it clear that trial judges are expected to do more than just sustain objections in situations like that presented in this case: “[A] timely and appropriate admonition of counsel avoids the possibility that the offending conduct will continue, and hopefully forestalls the accumulation of prejudice that occurs when such repeated improprieties are not effectively addressed. Regrettably, the trial court did not adequately perform its duty to prevent the conduct described herein. As one of the aforementioned examples from this case indicates, after the court sustained fourteen objections over the course of a mere thirty-three pages of trial transcript, the court took no further action. Apart from the deleterious effects that judicial inaction may cause in any given case, the failure of our trial courts to effectively deal with such conduct can in a broader sense only lead to emulation by other attorneys. Dismissing such occurrences as mere ‘harmless error’ encourages ‘Rambo’ litigators, intent on engaging in no-holds-barred tactics at trial, to roll the dice in the appellate courts. If that occurs, the entire judicial system suffers.”
The appeals court issued a clear warning against future misconduct: “In [Philip Morris USA, Inc. v.] Tullo, [121 So. 3d 595, 598 (Fla. 4th DCA 2013)], we sent a gentle message to lawyers pertaining to how future cases should be handled, and cautioned counsel to “be vigilant in crafting closing arguments that fall within the confines of permissibility.” . . . Unfortunately, we have seen many recent cases where this warning was either misunderstood or simply ignored. In this opinion, we hope to make that warning clearer. Attorneys who engage in such tactics in the future do so at their own peril, and the peril of their clients, by risking the reversal of their cases on appeal.” R.J. Reynolds Tobacco Co. v. Calloway, __ So.3d __ (Fla. 4th DCA, No. 4D12-3337, 9/23/2016) (on rehearing), 2016 WL 5404053.
Fourth DCA affirms order granting defendants’ motion for new trial for in tobacco case after $2 million jury verdict, due to improper closing argument. [Added 9/26/16]
Plaintiff obtained a jury verdict for over $2 million in a tobacco case. Defendants’ moved for new trial, arguing inter alia that Plaintiff’s counsel engaged in improper closing argument. The trial court granted the motion. Plaintiff appealed.
The Fourth DCA affirmed. Plaintiff’s counsel made improper arguments regarding the defense’s alleged “failure to take responsibility” and failure to apologize, which “‘permeated the closing argument.” Counsel also made “misleading” arguments concerning the statute of limitations.
The appeals court also cited with apparent approval remarks made in a recent case, where the dissenting opinion “reaffirmed the clarion call” warning against improper argument that the court sent in Philip Morris USA, Inc. v. Tullo (121 So.2d 595 (Fla. 4th DCA 2013): “In Tullo, we sent a gentle message to lawyers pertaining to how future cases should be handled, and cautioned counsel to ‘be vigilant in crafting closing arguments that fall within the confines of permissibility.’ . . . Unfortunately, we have seen many recent cases where this warning was either misunderstood or simply ignored. In this dissenting opinion, I hope to make that warning clearer. Attorneys who engage in such tactics in the future do so at their own peril, and the peril of their clients, by risking the reversal of their cases on appeal.” Cohen v. Philip Morris USA, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D13-2681, 9/7/2016), 2016 WL 4649570.
Third DCA criticizes conduct of lawyer who was taken out of courtroom for interrupting the court and speaking out of turn during dependency proceeding. [Added 9/8/16]
In a dependency proceeding, the father’s counsel improperly interrupted the trial court multiple times and, as a result, was escorted out of the courtroom. After counsel was removed, the child was adjudicated dependent. Father appealed.
The Third DCA reversed because parents have a right to counsel in dependency proceedings. Regarding counsel’s conduct, the court stated: “We further note, however, that the father’s trial counsel was escorted out of the courtroom after continually interrupting the court and speaking out of turn, and after several warnings were given by the court. Our decision here neither condones nor excuses counsel’s behavior, but we nevertheless acknowledge the importance of the right to counsel during proceedings of this nature.” J.C.O. v. Dept. of Children and Families, __ So.3d __ (Fla. 3d DCA, No. 3D16-320, 8/24/2016), 2016 WL 4468112.
In reversing $11 million plaintiffs’ verdict for other reasons, Fourth DCA criticizes arguments by plaintiffs’ counsel and indicates they would warrant reversal if properly preserved. [Added 8/6/16]
Wilde was seriously injury when his motorcycle was struck by a vehicle driven by an intoxicated driver, Felt. Wilde and his wife sued the entity that had served the driver alcohol. Plaintiffs won a $11.1 million jury verdict. Defendant and its insurance company appealed, contending that the trial court erred in several ways, including that the court should have granted a new trial based on improper jury argument by Plaintiffs’ counsel.
The Fourth DCA reversed the judgment based on errors in the admission of evidence. The appeals court also addressed Defendants’ contention that a new trial should have been granted based on improper argument. Only 3 of 9 allegedly improper arguments, however, were properly preserved for appellate review.
Two of the arguments, when combined, “straddle the line between permissibility and reversal.” Because it reversed on other grounds, the court stated that it “need not determine on which side of the aforementioned line the combined comments fall, although the answer is clear when the other objectionable comments that were not properly preserved for appellate review are taken into account.”
In closing, the court commented: “[W]e are troubled by many of the comments made by the Appellees during closing arguments, and caution against their recurrence in a future trial.” Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. v. Wilde, __ So.3d __ (Fla. 4th DCA, Nos. 4D14-2770, 4D14-2771, 8/3/2016), 2016 WL _______.
First DCA reverses verdict for defendant in personal injury case due to improper closing argument, and also criticizes plaintiff’s counsel for denigrating defense expert and defense counsel on Facebook. [Added 8/4/16]
Plaintiff sued Defendant for personal injuries after Defendant’s van allegedly struck Plaintiff’s auto. In closing argument, defense counsel referred to part of Plaintiff’s trial testimony regarding tapping her brakes and stated: “Why is that important? We took her deposition for hours and it never came up.” When Plaintiff’s counsel objected and asked for a sidebar, defense counsel said to the jury, “Well, that lasted about 12 minutes.” Plaintiff’s deposition was not in evidence. The trial court sustained the objection but denied a motion for mistrial. The jury rendered a verdict for Defendant.
The First DCA reversed, concluding that “defense counsel’s misconduct was so prejudicial as to warrant a new trial.” Defense counsel’s attempted impeachment of Plaintiff’s credibility by a reference to alleged inconsistencies between her trial and deposition testimony was improper, as was “his open disparagement of plaintiff’s counsel after the latter had registered an eminently reasonable objection to the impropriety.” This error was not cured by the trial court’s instruction because Defendant’s liability hinged on the credibility of the opposing witnesses and the error seemed to be made intentionally. “Furthermore, because the inadmissibility of appeal to non-record evidence during closing arguments is such a fundamental and longstanding canon of trial practice and ethics, codified in rule 4-3.4 of the Rules Regulating the Florida Bar, defense counsel’s violation, if not intentional, was at least grossly reckless, particularly because it was committed during closing arguments, when such improper statements are especially likely ‘to inflame the minds and passions of the jurors so that their verdict reflects an emotional response . . . rather than the logical analysis of the evidence in light of the applicable law.’ Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (citing Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985)).”
The appeals court also criticized the conduct of Plaintiff’s counsel. “[P]laintiff’s counsel’s snide denigration of [a defense expert’s] professional occupation in the presence of the jury and postings by plaintiff’s counsel on his own public Facebook page – which included commentary on the proceedings and the evidence and derogatory references to one of defendant’s attorneys – were well outside the bounds of professional conduct to which members of our profession are expected to adhere.” Boyles v. Dillard’s, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D14-5276, 7/25/2016), 2016 WL 3974849
Second DCA reverses finding of indirect criminal contempt against 2 lawyers, but urges every lawyer to make “civility and professionalism an integral part of his or her daily life.” [Added 7/25/16]
Lawyers were involved in hotly contested litigation between Doctor and an entity (“Physicians Group”) that previously employed him. Doctor provided allegedly confidential documents to Lawyers. A court order was entered requiring Lawyers to return all documents bearing a “Confidential” or “Attorneys Eyes Only” notation. Lawyers turned over these documents as ordered, but did not turn over other documents received directly from Doctor that did not bear these designations.
After Lawyers’ firm filed an appeal with an unsealed appendix that included documents received from Doctor that were allegedly confidential, Physicians Group moved to hold Lawyers and their law firm in indirect criminal contempt of court for violating court orders relating to confidentiality. The trial court found Lawyers guilty, fined them, placed them on probation, and required them to perform community service. Lawyers appealed.
In a lengthy opinion the Second DCA reversed “[b]ecause Physicians Group failed to present evidence proving beyond a reasonable doubt that either Mr. Haas or Ms. DeFiore acted with the intent to disobey a court order.”
Nevertheless, in closing the appeals court offered these comments: “It is evident from the facts shown in the record that this case involved a disturbing series of events in the underlying action in the trial court and in the related proceedings. However, a review of the facts outlined in this opinion should remind every member of the legal profession who reads it of the importance of making civility and professionalism an integral part of his or her daily life. See Oath of Admission to The Florida Bar (‘To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.’); Conferences of Circuit Judges and County Court Judges and Trial Lawyers Section of The Florida Bar, Guidelines for Professional Conduct, Preamble (2008) (‘Coupled with [a lawyer's other] duties is a lawyer's duty of courtesy and cooperation with fellow professionals for the efficient administration of our system of justice and the respect of the public it serves.’); see generally Code for Resolving Professionalism Complaints (setting forth standards for the professional conduct expected of lawyers in a variety of circumstances).” Haas v. State, __ So.3d __ (Fla. 2d DCA, Nos. 2D15-19, 2D15-321, 7/15/2016), 2016 WL 3766748.
Prosecutor’s “typification” in closing argument of defendant lawyer accused of stealing trust money from clients was improper but did not result in reversal of conviction. [Added 7/15/16]
Defendant, a disbarred lawyer, was convicted of stealing $700,000 they he had held in trust for clients. Defendant appealed, contending that the prosecutor’s closing argument warranted reversal. The prosecutor disparaged lawyers, saying: “Lawyers take money, and they lie. So when is a lawyer lying? It’s when they open their mouth.” The prosecutor also said: “Lawyers are often the butts of jokes. They are the recipients of phrases and this happens because of the fact that we have a bad reputation.”
Although the Third DCA stated that the comment was “improper and unnecessary ‘typification’ of the defendant,” the court affirmed. Defense counsel failed to properly preserve the error. Further, the comment was isolated and the trial court gave a curative instruction. Bailey v. State, __ So.3d __ (Fla. 3d DCA, Nos. 3D14-1917, 3D14-1868, 3D16-1368), 7/13/2016), 2016 WL _______.
Second DCA adopts and publishes “Practice Preferences” for lawyers engaging in appellate practice in that District. [Added 6/29/16]
In an effort to promote “best practices in appellate advocacy, the Second DCA has adopted and published its “Practice Preferences.” The court pointed out that this document provides only “suggestions” and does not “create any enforceable rights – for or against anyone.” Further, nothing in the Practice Preferences “is intended to supplant or modify any promulgated rule or law.” The Practice Preferences address 3 subject areas in appellate practice: (1) Notices, Motions, and Records; (2) Briefs and Brief Writing; and (3) Oral Argument.
The Practice Preferences are on the Second DCA website at: http://www.2dca.org/Clerk/Practice%20Preferences%20amended%20Oct%20'15%20formatted.pdf .
Uniform "Standards of Professional Courtesy and Civility" are adopted by the 11th, 15th, 17th, and 19th Florida circuits. [Added 5/20/16]
Four Florida circuits have adopted the same set of "Standards of Professional Courtesy and Civility." The Standards are now in place in the 11th, 15th, 17th, and 19th circuits. This allows the Professionalism Panels in each circuit to apply the same guidelines. For background information, see this story in the June 1, 2016, issue of the Florida Bar News.
Third DCA reminds lawyers of their obligation regarding “a fundamental tenant of appellate advocacy.” [Added 5/4/16]
In affirming an appeal of an intra-family dispute, the Third DCA chose to write an opinion so that it could “reiterate a fundamental tenet of appellate advocacy.” Appellants are required to provide a statement of facts and to interpret the evidence in the light most favorable to sustaining the fact-finder’s conclusions. The appellants in the instant case apparently neglected to fulfill this obligation. As the court noted, “[t]he ‘light most favorable’ is not a reference to a Florida sunrise.” Hall v. Hall, __ So.3d __ (Fla. 3d DCA, No. 3D15-12, 4/27/2016), 2016 WL 1688611.
Fourth DCA reverses $5.8 million verdict in tobacco case due to improper argument by plaintiff’s counsel. [Added 4/18/16]
Plaintiff obtained a verdict of $5.8 million in a case against a tobacco manufacturer. Defendant appealed, contending that reversal was warranted due to improper closing arguments by Plaintiff’s counsel. The Fourth DCA agreed and reversed.
The appeals court concluded that Plaintiff’s counsel made improper “send a message” arguments. “Exhorting a jury with a ‘call to action’ to use its verdict to ‘speak loud and speak clear’ via a compensatory damage award, as was done repeatedly here, is improper.”
Additionally, plaintiff’s counsel made improper attacks on opposing counsel. “Comments accusing an opposing party’s attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, of deliberately distorting the evidence, or of participating in a concerted scheme to do so, have no place in our legal system.”
The court concluded: “This court has previously held that comments ‘impugn[ing] the integrity or credibility of opposing counsel’ in the context of a criminal trial were egregious enough to constitute fundamental error. . . . In order for an error to be considered harmless in civil cases, ‘the beneficiary of the error must prove that there is no reasonable possibility that the error complained of contributed to the verdict.’ . . . Because there is no reasonable possibility that the errors discussed above were harmless, we reverse the judgment and remand for new trial.” (Citations omitted.) R.J. Reynolds Tobacco Co. v. Gafney, __ So.3d __ (Fla. 4th DCA, No. 4D13-4358, 3/23/2016), 2016 WL 1128480.
Third DCA cautions counsel that improper argument can result in reversal of favorable verdict. [Added 4/18/16]
Kinser sued the City of Miami alleging premises liability negligence. The jury returned a verdict for Kinser. City moved for a new trial, contending that City was deprived of a fair trial due to the cumulative effect of improper statements made during closing argument by Kinser’s counsel. The trial court denied the motion.
The Third DCA affirmed, but cautioned Kinser’s counsel about counsel’s conduct. “During closing arguments, the City objected to several arguments made by Kinser’s counsel, which we divide into three categories: improper bolstering of a witness’s credibility [in violation of Rule 4-3.4(e)], improper denigration of a party’s defense, and improper appeal to the conscience of the community. Although we conclude that the trial court did not abuse its discretion by determining that in this case the improper, objected-to statements made during closing arguments were not so prejudicial as to deprive the City of a fair trial, we caution trial counsel that, under different facts and circumstances, and had the City objected to additional and perhaps more egregious comments made by Kinser’s counsel, a new trial may have been required.” (Emphasis added.) City of Miami v. Kinser, __ So.3d __ (Fla. 3d DCA, No. 3D15-370, 3/23/2016).
After First DCA reverses dismissal of bank’s claim as sanction for its counsel’s discovery violations, concurring opinion points out harm to public’s confidence in judiciary caused by discovery abuses. [Added 3/13/16]
Bank’s foreclosure suit was dismissed by the trial court as a sanction for discovery violations by Banks’s counsel. The First DCA reversed because the trial court failed to make written findings as required by Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993).
In a concurring opinion, one judge pointed out the harm caused by unprofessional behavior in the form of “egregious” discovery violations: “[W]e cannot and do not countenance actions in which litigants disregard discovery deadlines, file meaningless objections, insert boilerplate responses, and file repeated motions for additional time to respond, only to provide insufficient information or documents. . . . It is critical to remember that discovery abuses are not merely private matters between private litigants, but are public abuses that violate citizens’ proper expectation that the judiciary will ensure that cases are timely resolved. . . . All involved, judges and litigants, have a solemn responsibility to ensure that inexcusable delays in civil legal proceedings do not occur, and where such are documented, that the delays are appropriately punished.” Bank of New York Mellon v. Clark, __ So.3d __ (Fla. 1st DCA, No. 1D15-2250, 2/2/2016), 2016 WL 392787.
Supreme Court reverses murder and aggravated child abuse convictions based on numerous and “inflammatory” improper closing arguments at guilt phase. [Added 2/22/16]
The Supreme Court reversed murder and child abuse convictions based on multiple instances of improper closing arguments in the guilt phase of the trial. The Court reminded lawyers that, as it has “stated for decades,” the Court expects prosecutors, “as representatives of the State, to refrain from engaging in inflammatory and abusive arguments, to maintain their objectivity, and to behave in a professional manner.” The Court explained: “The improper arguments in this case – including the prosecutor’s inflammatory refrain of describing the purpose of the trial as seeking ‘justice’ for the child victim and the prosecutor’s repeated denigration of the defense’s presentation as ‘diversionary’ – pervaded the closing argument from beginning to end. Most of the improper comments were objected to, and those objections were overruled, amplifying the prejudicial effect of the comments by implicitly placing the trial court’s imprimatur of approval on the remarks.” Cardona v. State, __ So.3d __ (Fla., No. SC11-1446, 2/18/2016).
Fifth DCA remains “troubled” by number of cases that it sees involving improper prosecutorial argument. [Added 2/16/16]
Defendant was convicted of aggravate child abuse and appealed. She argued that the trial court erred in denying her motion for mistrial based on improper prosecutorial closing argument. The Fifth DCA affirmed, but in doing so stated: “[W]e remain troubled by the number of cases that continue to come before this court involving improper argument by prosecutors. See, e.g., Ramroop v. State, 174 So.3d 584 (Fla. 5th DCA 2015); Brinson v. State, 153 So.3d at 972; Crew v. State, 146 So.3d 101 (Fla. 5th DCA 2014). Nor is this a recent phenomena. See, e.g., Servis v. State, 855 So.2d 1190 (Fla. 5th DCA 2003); Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998). We again remind attorneys presenting closing argument in Florida courts, whether in criminal or civil trials, that they are governed by rule 4–3.4[e] of the Rules Regulating the Florida Bar . . . This ethical rule ‘is in place to help insure that juries render verdicts based on record evidence and applicable law, not based on impermissible matters interjected by counsel during closing argument.’ City of Orlando v. Pineiro, 66 So.3d 1064, 1069 (Fla. 5th DCA 2011).” Panchoo v. State,__ So.3d __ (Fla. 5th DCA, No. 5D14-4255, 1/22/2016), 2016 WL 264544
Second DCA criticizes counsel for not doing “professional and civil thing to do” and simply stipulating to entry of order rather than litigating. [Added 12/30/15]
In foreclosure litigation with Fannie Mae, a Trust moved to vacate an order on the ground that it had not been served by the court with a copy of the order. When that motion was denied, the Trust appealed. The Second DCA reversed, ruling that the Trust was entitled to relief under Fla.R.Civ.P. 1.540(b). In a footnote, the court criticized Fannie Mae’s counsel: “Frankly, based on these undisputed facts, we are somewhat surprised that counsel for Fannie Mae did not simply stipulate to the entry of a new order on the motion for rehearing for purposes of preserving the Trust’s appellate rights. Given the facts here, this would have been the professional and civil thing to do.” Leichester Trust, Turst Number 1920 v. Federal National Mortgage Ass’n, __ So.3d __ (Fla. 2d DCA, No. 2D15-1390, 12/23/2015), 2015 WL 9311434.
Fourth DCA questions professionalism of 2 lawyers who litigated and appealed award of fees arising from failure of one lawyer to remove other from service list. [Added 12/21/15]
In a domestic relations matter, the former husband’s lawyer claimed that the former wife’s lawyer failed to remove him from the case’s service list, thus requiring him to file a motion to compel his removal. The former husband’s lawyer sought and was awarded attorney’s fees.
The Fourth DCA reversed, noting that the trial court “failed to make the necessary finding that the wife’s attorney acted in bad faith in serving the husband’s previous attorney.”
The appeals court commented that it was “difficult to believe” that a bad faith showing could be made by the former wife’s lawyer’s “service of two pleadings on the previous attorney (who had not withdrawn on the record). However, because there was no evidentiary hearing, all of the facts are not present. Nevertheless, it appears that professionalism has eluded these attorneys, burdening both the trial court and this court.” (Emphasis added.) Houston v. McKnought-Smith, __ So.3d __ (Fla. 4th DCA, No. 4D14-4927, 12/16/2015), 2015 WL _______.
First DCA imposes sanctions against lawyer under F.S. 57.105(1) and Fla.R.App.P. 9.410(a) for filing frivolous appeal and failing to timely respond to show-cause order. [Added 12/21/15]
A minor (“A.T.H.”) was the center of a decade-long custody dispute. At some point the father allegedly arranged for A.T.H. to marry his step-sister in Missouri, following which the father filed a notice of emancipation with the trial court. The mother objected, arguing that the marriage was a sham. The trial court agreed and, by order dated May 22, 2013, refused to recognize the marriage. A.T.H. did not appeal the court’s order.
The parents filed a second settlement agreement with the court in February 2104, in which both parties “specifically agreed that A.T.H. was not legally married and not emancipated” because the Missouri marriage was invalid. The parties also agreed to entry of an order giving the mother sole parental responsibility for A.T.H. But before that order could be entered, Lawyer filed a notice of appearance “purportedly on behalf of A.T.H., together with a motion to confirm A.T.H.’s emancipation, asserting that the Missouri marriage is valid and must be recognized as such by the trial court.” A.T.H.’s court-appointed attorneys moved to strike the appearance and filings, asserting that Lawyer violated Fla.R.Jud.Admin. 2.505(e) by appearing for a party who was already represented without first contacting counsel of record. They also sought sanctions for Lawyer’s attend to relitigate the validity of the Missouri marriage, despite A.T.H.’s failure to appeal the trial court’s order on that subject.
The trial court granted the motion to strike and the motion for sanctions. Lawyer petitioned for writ of certiorari. The First DCA affirmed and ordered Lawyer to show cause within 10 days why sanctions should not be imposed against him pursuant to F.S. 57.105(1) and Fla.R.App.P. 9.410(a) for filing a frivolous appeal. Lawyer failed to timely respond.
The First DCA concluded that the appeal was frivolous. Further, the court noted that Lawyer had failed to timely respond to the show-cause order (his response was 16 days late). The court ordered Lawyer to pay A.T.H.’s court-appointed attorney’s fees for defending the appeal. In re A.T.H., __ So.3d __ (Fla. 1st DCA, No. 1D143370, 12/14/2015), 2015 WL 8558301.
Supreme Court reverses murder conviction based in part on “patently improper comments in the closing argument” by prosecutor who “pushed the envelope” before. [Added 12/20/15]
The Supreme Court reversed a murder conviction based in part on “patently improper” preserved and unpreserved error during closing argument by the prosecutor. During guilt-phase closing arguments the prosecutor “improperly commented on [the defendant’s] right to a jury trial, misstated the law, and denigrated [the defendant] and his defense.”
The Court pointed out that the prosecutor had “pushed the envelope” in other cases, referring to the Second DCA’s criticism of the prosecutor for “arrogance and inappropriate comments” in Sheridan v. State, 799 So.2d 223 (Fla. 2d DCA 2001). Evans v. State, __ So.3d __ (Fla., No. SC12-2160, 11/12/2015), 2015 WL 7008526.
Fourth DCA imposes appellate fees as sanction under F.S. 57.105 for filing frivolous appeal, and criticizes counsel for making “an extremely misleading assertion.” [Added 12/16/15]
The Fourth DCA affirmed a judgment and awarded appellate attorney’s fees as a sanction under F.S. 47.105 for filing a frivolous appeal. “Not only was the underlying matter without merit, this appeal is without merit as well.”
Appellant’s counsel argued that the appellant did not have an opportunity to present argument to the lower court regarding a motion to award fees in the trial court. The appeals court rejected this contention, stating: “This is an extremely misleading assertion because the record reveals that the trial court held a hearing on the appellee’s motion for attorney’s fees on March 18, 2014. The appellant, however, has not provided a transcript of the hearing.” Cosner v. Park, __ So.3d __ (Fla. 4th DCA, No. 4D14-2543, 11/25/2015), 2015 WL 7571466.
Supreme Court affirms conviction despite use of improper argument, but cautions prosecutors against comments that “cross the line from zealous advocacy to improper.” [Added 12/12/15]
A convicted criminal defendant filed a motion to vacate his death sentence pursuant to Fla.R.Crim.P. 3.851. The circuit court denied the motion. Defendant appealed to the Supreme Court, asserting inter alia that his counsel was ineffective for failing to object to certain arguments at the sentencing hearing.
The Supreme Court affirmed. The Court noted that several unobjected-to arguments were improper and should not have been made, but concluded that Defendant failed to demonstrate prejudice.
The Court cautioned against unprofessionalism in closing argument: “We take this opportunity to again caution prosecutors about such impassioned closing arguments. We understand that often comments are made in the heat of the moment that with hindsight should not be made because they cross the line from zealous advocacy to improper. However, prosecutors should be ever mindful that in cases where the evidence supporting guilt or the aggravating circumstances is not strong, such comments could and have caused this Court to find that improper comments materially contributed to either the finding of guilt or the recommendation for a sentence of death.” Orme v. State, __ So.3d __ (Fla., Nos. SC13-819, SC14-22, 12/10/2015), 2015 WL _______.
In probate litigation involving undue influence on party of lawyer, Second DCA observes that “repercussions from a single ethical lapse may carry far beyond a lawyer’s license to practice law.” [Added 12/9/15]
The decedent died at the age of 107, “leaving behind an estate worth nearly twelve million dollars, a series of wills, a phalanx of potential heirs – and extensive litigation.” The Second DCA reversed a probate court order concluding that much of the estate passed through intestacy.
The appeals court also made this observation concerning the conduct of the decedent’s lawyer, whom the probate court found had exerted undue influence on the decedent. “We need not recount all of the probate court’s findings of undue influence – which were quite extensive – but would echo the court’s sense of puzzlement as to why Mr. Carey, an esteemed lawyer and a former city councilman, FBI agent, and Army Air Corps veteran, succumbed to the temptation to pursue a pecuniary windfall at the expense of a frail and susceptible client. Sadly, the pall of this case cast a long shadow over an otherwise exemplary professional reputation. Cf. Fla. R. Prof. Conduct 4–1.8(c) (‘A lawyer shall not ... prepare on behalf of a client an instrument giving the lawyer ... any substantial gift unless the lawyer ... is related to the client.’). We make this observation not to impugn the memory of Mr. Carey, who passed away in 2014, but to state this simple point: the repercussions from a single ethical lapse may carry far beyond a lawyer’s license to practice law.” In re Estate of Murphy, __ So.3d __ (Fla. 2d DCA, No. 2D14-4107, 11/6/2015), 2015 WL 6777216.
In dismissing appeal, Third DCA cautions lawyer and his law firm regarding ethical obligations of diligence and candor to the court. [Added 11/17/15]
Lawyer filed an appeal from a non-final order in August 2015. He did not file an initial brief or seek an enlargement of time. Further, the order appealed from did not appear to meet the jurisdictional requirement of Fla.R.App.P. 1.930(a)(3)(c)(ii). The Third DCA granted the opposing party’s motion to dismiss the appeal for lack of jurisdiction and awarded appellate attorney’s fees.
Although the court declined to pursue further sanctions, it indicated its concern about Lawyer’s conduct: “[Opposing party] has directed this Court to a number of prior appeals filed by [Lawyer] and his law firm that have been dismissed by this Court for lack of jurisdiction and/or failure to comply with this Court’s orders. Although our investigation has led us to share [opposing party]’s concern, we decline to take such action at this time. We, however, caution [Lawyer] and his law firm that there is an ethical obligation to use due diligence and candor in all filings with this Court.” Andros Development Corp. v. Benitez, __ So.3d __ (Fla. 3d DCA, No. 3D15-1858, 11/4/2015), 2015 WL 6738922.
Lawyer whose failure to timely file appellate brief (apparently due to non-payment) resulted in Third DCA dismissing appeal is referred to Local Professionalism Panel. [Added 10/27/15]
Lawyer filed a notice of appeal for his clients, Appellants. When Lawyer failed to timely file the initial brief, Appellee moved to dismiss the appeal. The Third DCA ordered Appellants to show cause why their appeal should not be dismissed. Lawyer sought an extension of time, which was granted. Lawyer missed the second deadline. After Appellee again moved to dismiss the appeal, the court gave Appellants 10 days to file a brief. The brief was not filed. The court dismissed the appeal and ordered Lawyer to show cause why sanctions should not be imposed for failure to comply with court orders and the Rules of Appellate Procedure.
Lawyer responded by arguing, in a manner that was “not entirely clear,” that he did not prosecute the appeal because he was not being paid.
The court suggested Lawyer may have violated Rule 4-1.3, which requires a lawyer to act with reasonable diligence and promptness when representing a client. The court explained: In our view, the rule requires that, when faced with such a situation (a client lacks the resources to pay for an attorney’s appellate services), it is incumbent on the attorney of record to respond appropriately to Court orders, seek enlargements of time, or file a motion to withdraw from representation.” Rule 4-3.1 “does not contemplate the attorney simply doing nothing, so that the client’s appeal is dismissed.”
Nevertheless, the court decided not to sanction Lawyer or refer him to the Florida Bar. Instead, the court concluded that “[u]nder the facts and circumstances of this case, we conclude that referral of [Lawyer] to The Eleventh Circuit’s Local Professionalism Panel is the proper course of action.” Beckles v. Brit, __ So.3d __ (Fla. 3d DCA, NO. 3D14-2320, 10/21/2015), 2015 WL 6161342. In re Estate of Murphy, __ So.3d __ (Fla. 2d DCA, No. 2D14-4107, 11/6/2015), 2015 WL 6777216.
Supreme Court disbars lawyer who had prior discipline for unprofessional conduct. [Added 10/17/15]
Lawyer previously was suspended from practice for 2 years and appeared before the Supreme Court to receive a public reprimand. Lawyer had been found guilty of committing seriously unprofessional conduct. (In a footnote in its published opinion, the Court suggested that “[m]embers of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior.” Florida Bar v. Norkin, 132 So.3d 77, 93 (Fla. 2013).)
When the suspension was imposed, Lawyer was ordered to notify his clients of the suspension and furnish Bar counsel with an affidavit certifying compliance with this order. The Bar filed a petition alleging that Lawyer had not submitted the required affidavit and had engaged in the practice of law after being suspended. The Bar also moved for sanctions, seeking sanctions as a result of offensive and threatening emails allegedly sent by Lawyer.
The Court appointed a referee to hold a hearing. The referee granted summary judgment for the Bar and found Lawyer in contempt. The referee also recommended that Lawyer be disbarred.
The Supreme Court approved the referee’s order granting summary judgment for the Bar. “As found by the referee in his report, Norkin’s e-mails to bar counsel referred to bar counsel as ‘evil’ and ‘despicable’; called the proceedings against him ‘the most unjust act in judicial history’; stated that bar counsel had no conscience; and stated, ‘I’m preparing the lawsuit against you. Keep an eye out.’ At the hearing on the motion for sanctions, the referee questioned Norkin about the e-mails and his behavior during the public reprimand administered by this Court. In response, Norkin asserted his ‘right to speak freely and to express his beliefs in the manner of his choosing,’ and freely admitted that during the public reprimand, he intentionally smirked and stared down each Justice one by one. We have disciplined attorneys for similar conduct as a violation of rule 4-8.4(d), including Norkin himself. See Norkin, 132 So.3d at 86; Fla. Bar v. Martocci, 791 So.2d 1074, 1075, 1078 (Fla. 2001) (finding that making insulting facial gestures at opposing counsel, making sexist comments, and disparaging opposing counsel violated rule 4-8.4(d)); Fla. Bar v. Buckle, 771 So.2d 1131, 1132 (Fla. 2000) (finding that humiliating and intimidating letter, sent by attorney to alleged victim of his client, violated rule 4-8.4(d)).”
The Court concluded that permanent disbarment was warranted. “[G]iven Norkin’s continuation of his egregious behavior following his suspension and during the administration of the public reprimand, we conclude that he will not change his pattern of misconduct. Indeed, his filings in the instant case continue to demonstrate his disregard for this Court, his unrepentant attitude, and his intent to continue his defiant and contemptuous conduct that is demeaning to this Court, the Court’s processes, and the profession of attorneys as a whole. Such misconduct cannot and will not be tolerated as it sullies the dignity of judicial proceedings and debases the constitutional republic we serve. We conclude that Norkin is not amenable to rehabilitation, and as argued by the Bar, is deserving of permanent disbarment.” (Citations omitted.) Florida Bar v. Norkin, __ So.3d __ (Fla., SC11-1356, SC13-2480, 10/8/2015), 2015 WL 5853915.
Supreme Court amends “Code for Resolving Professionalism Complaints” on its own motion. [Added 9/11/15]
On its own motion, the Florida Supreme Court amended the “Code for Resolving Professionalism Complaints” as a consequence of the adoption of the “Professionalism Expectations” by the Bar’s Board of Governors. The Professionalism Expectations, which were drafted by the Bar’s Committee on Professionalism, were approved by the Board on January 30, 2015. The Professionalism Expectations replaced the Ideals and Goals of Professionalism. The Court’s amendments to the Code recognize this change. The amendments are effective immediately. In re: Amendments to the Code for Resolving Professionalism Complaints, __ So.3d __ (Fla., No. SC15-944, 9/10/2015), 2015 WL 5254238.
Following 3 show-cause proceedings, Second DCA publishes order referring lawyer to Florida Bar for conduct including apparent lack of candor to the court. [Added 8/31/15]
The Second DCA published an order referring Lawyer to the Florida Bar “for such proceedings as may be appropriate.”
The court’s order detailed 3 show-cause proceedings instituted against Lawyer in the past 18 months. All involved criminal judgment and sentence appeals. Noting its order in a prior case involving Lawyer, the court observed: “Suffice it to say that [Lawyer] appears to take at best a cavalier approach to orders issued by this court. See Garcia v. State, 40 Fla. L. Weekly D1038, D1039 (Fla. 2d DCA May 1, 2015) (noting that, in response to this court's order directing her appearance to show cause, [Lawyer] filed a paper several days before the hearing in which she informed the court that she could not attend because of a scheduled trial and to which she attached her trial calendar to aid this court in rescheduling her show-cause appearance).” The court further stated: “When this or any court issues an order directing an attorney to respond within x number of days, the attorney is obligated to file a response within x number of days, not within x + 10 days or whatever other period of time happens to suit the attorney's schedule. This specific principle may not have been covered in law school or tested on the bar exam, but it would seem to be axiomatic.” A grievance committee had so cautioned Lawyer in another case referred by the Second DCA, Allen v. State, 2D13-3954, Order (Jan. 21, 2014).
In the instant case, the appeals court noted that Lawyer’s response to questions at the show-cause hearing indicated a possible lack of candor to the court – her responses “did not, in the final analysis, make sense, a circumstance that raises the issue of [Lawyer’s] candor toward the court.” Regarding candor, the court further noted that, although she reported at the hearing that she had sent the Second DCA a copy of the self-report to the local professionalism panel that was required by the appeals court in the Garcia case, the “record reflects no such filing.” Cooper v. State, __ So.3d __ (Fla. 2d DCA, No. 2D14-4027, 8/28/2015), 2015 WL 5062267.
Fifth DCA imposes fees and fines on 2 lawyers as sanctions for filing frivolous notice of lis pendens and baseless motion for extension of lis pendens. [Added 8/7/15]
Two lawyers, Tolbert and Withers, represented clients in a case before the Fifth DCA. The court ordered the lawyers to show cause why they should not be sanctioned under Fla.R.App.P. 9.410(a). The court concluded that the lawyers “filed a frivolous notice of lis pendens and a baseless motion for extension of lis pendens.”
The court published an opinion imposing sanctions and expressing its “concern” about counsels’ conduct. “Commendably, Appellants' counsel both apologized to the Court and to Appellee's counsel, and we took that into consideration in determining sanctions. First, Appellants’ counsel shall, jointly and severally, pay the reasonable fees incurred by Appellee responding to Appellants’ frivolous pleadings. The trial court shall determine the amount of those fees if counsel are unable to reach an agreement. Second, this Court imposes a $1,000 fine on Attorney Joanna Tolbert that shall be paid to the Clerk of this Court within thirty days. Third, as this Court has sanctioned him once before in Hagood v. Wells Fargo, N.A., 125 So. 3d 1012 (Fla. 5th DCA 2013), we impose a $2,000 fine on Attorney Richard W. Withers that shall be paid to the Clerk of this Court within thirty days.” Massa v. McNutt, __ So.3d __ (Fla. 5th DCA, No. 5D14-351, 8/7/2015), 2015 WL 4660527.
Fifth DCA cautions lawyer about her duty to court to properly describe status of law being argued. [Added 8/4/15]
An issue of equitable subrogation was appealed to the Fifth DCA. The Third DCA had taken one approach to the issue, while the Second and Fourth DCAs took a different approach. Despite this conflict, counsel for the appellees argued that “Florida courts have consistently held that a party may not purse [sic] a claim for equitable subrogation until said party pays the entire debt owed” (emphasis added by court). In a footnote, the Fifth DCA chided the lawyer: “We remind counsel of her professional obligation and duty to the court to apprise the court of the correct status of the law.” Florida Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D14-3480, 7/31/2015), 2015 WL 4577201.
In concurring opinion, Third DCA judge criticizes conduct of lawyer who prosecuted “frivolous appeal." [Added 7/17/15]
The Third DCA affirmed per curiam, but one judge wrote a concurring opinion criticizing the appellant’s counsel. The judge stated that, in addition to affirming, he would issue an order to show cause why appellant’s counsel “should not be sanctioned pursuant to 57.105(1)(b) of the Florida Statutes for maintaining a frivolous appeal.”
Counsel’s client was a corporate non-party that acquired an interest in the property that was the subject of the litigation after a lis pendens was filed. Counsel had not timely filed a motion for his client to intervene. The judge sharply rejected counsel’s argument that his client was an “unknown defendant” named in the complaint. “To allow a party to file pleadings as an ‘unknown defendant’ despite having no interest in the subject property at the time the suit began and obtaining interest to the subject property only after the filing of a lis pendens, would render the intervention rule meaningless. The mere existence of the rules requiring intervention should have been sufficient to guide the Appellant below, and counsel’s failure to either grasp or adhere to the simplicity of this procedure does not excuse the baseless nature of this appeal.” Barnsdale Holdings, LLC v. PHH Mortgage Corp., __ So.3d __ (Fla. 3d DCA, No. 3D14-837, 7/15/2015), 2015 WL 4269918.
Fifth DCA criticizes professionalism of lawyer who based appellate argument on testimony of client, which trial court found to be less credible than testimony of state’s witness. [Added 6/24/15]
Lawyer represented a convicted criminal defendant in an appeal. The Fifth DCA affirmed without discussion of the merits, but expressly criticized Lawyer’s “inappropriate and unprofessional” conduct.
“[W]e we find it necessary to comment on the appellant's improper insertion of alleged facts in both the statement of the facts and the argument sections of her brief. As an appellate court, we are required to consider the facts in the light most favorable to the appellee, and the appellant must properly address the facts in that manner. Such was clearly not done by the appellant in this case. The facts in this case were highly disputed, and the trial court conducted an evidentiary hearing thereon. The court thereafter expressly found the testimony of the victim to be more credible than the testimony of the appellant. In spite of this explicit finding, the appellant’s brief improperly presented as ‘fact’ the testimony of the appellant, and counsel based her legal arguments on those facts. Such practices are inappropriate and unprofessional.” Gonser v. State, __ So.3d __ (Fla. 5th DCA, No. 5D14-2146, 6/19/2015), 2015 WL 3753505.
Lawyer’s “abuse of the rehearing process” prompts Fifth DCA to refer lawyer to Florida Bar and issue order to show cause why he should not be monetarily sanctioned for filing the “meritless and insulting” motion. [Added 6/2/15]
Lawyer filed a motion for rehearing after the Fifth DCA issued a per curium affirmance opinion. The court expressed its displeasure at the “29-page motion, the tone and tenor of which is, at best, disparaging, and at worst, contemptuous, rearguing the same points previously raised in his briefs and discussed at oral argument.”
The court felt “compelled to comment on conduct that common sense should dictate is inappropriate.” The rehearing motion did not, as required by Fla.R.App.P. 9.330, call the court’s attention to some fact, precedent, or rule of law overlooked in its opinion. Instead, “in open defiance of rule 9.330, it expresses displeasure with our ruling and, in the process, minces no words in attacking the trial judge, Appellee, opposing counsel, and this panel. Some of the most egregious comments refer to opposing counsel’s arguments as misleading, self-serving, absurd, red-herrings, fabricated, bogus, convoluted, illogical, confusing, and spurious.”
Determining that such conduct “cannot be countenanced,” the court had a copy of its opinion sent to the Florida Bar and ordered Lawyer to show cause why “monetary or other sanctions should not be imposed.” McDonnell v. Sanford Airport Authority, __ So.3d __ (Fla. 5th DCA, No. 5D13-3850, 5/15/2015), 2015 WL 2259430.
Second DCA imposes sanctions on lawyer, refers her to Bar, and orders her to self-report to local Circuit Professionalism Panel for failure to follow proper appellate procedures. [Added 5/13/15]
Lawyer “attempted to commence criminal appeals on behalf of” appellants in 3 separate cases. The Second DCA was not pleased with Lawyer’s efforts, noting that she “is unfamiliar with some of the basic terminology and concepts associated with the commencement of an appeal,” that she “seems unable to comply with the requirements of [Fla.R.App.P.] Procedure 9.140(d), which addresses the process by which a trial counsel commences an appeal and thereafter successfully withdraws after appellate counsel has been appointed, and that she “seems, at best, indifferent to the requirement that the notice of appeal be accompanied by a filing fee” or certificate of indigency.
Expressing its hope that Lawyer’s shortcomings were due to limited experience rather than willful disobedience, the Second DCA chose not to impose “more penal” sanctions and instead ordered Lawyer “to self-report to the Sixth Judicial Circuit's Professionalism Implementation Panel requesting that it appoint an ‘intermediary’ to assist in providing her with access to an attorney who can privately train and mentor her in the process of filing notices of appeal and obtaining orders of withdrawal in criminal cases. See Re: Professionalism Comm. and Standards of Prof'l Courtesy, Admin. Order No. 2013-075 PA/PI-CIR (Fla. 6th Cir. Ct. Nov. 12, 2013).”
The court also sent a copy of its opinion to the Florida Bar “for such action as it may deem appropriate.” Garcia v. State, __ So.3d __ (Fla. 2d DCA, Nos. 2D15-54, 2D15-403, 2D15-409, 5/1/2015), 2015 WL 1955674.
First DCA criticizes appellate counsel for failure to adequately identify and raise only meritorious claims on appeal. [Added 4/18/15]
The appellant in a domestic relations case raised 19 issues on appeal. In a critical footnote the First DCA stated: “There are few, if any, cases that merit raising nineteen issues on appeal. It is the job of competent appellate counsel to select and raise only meritorious issues on appeal. Failure to adequately perform this function wastes the court’s time and runs the risk of the court overlooking meritorious issues.” Broga v. Broga, __ So.3d __ (Fla. 1st DCA, No. 1D14-1364, 4/15/2015).
Lawyer ordered to personally pay appellate fees as sanction under F.S. 57.105 for prosecuting frivolous appeal. [Added 2/14/15]
The Third DCA sua sponte ordered Lawyer and his Client to show cause why they should not be ordered to compensate their opponents for appellate fees and costs incurred by the opponents in “defending against the prosecution of a frivolous appeal” of a trial court order that had awarded the opponents $166,000 as a sanction for a fraud on the court perpetrated by Lawyer and Client. The appeals court then ordered “[Lawyer] alone to compensate appellees further” and remanded for determination of the appropriate amount.
Lawyer alone was responsible for the additional fees pursuant to F.S. 57.105(1)(b), which provides for the imposition of fees as a sanction for pursing a claim that Lawyer knew or should have known “would not be supported by the application of then-existing law to those material facts.”
The court explained that the points raised by Lawyer in the appeal were “clearly meritless” and lacked “any basis in reality.” The court also pointed out Lawyer’s probable violations of Rules 4-3.3(a)(4) (proffering false evidence) and 4-8.2(a) (impugning integrity of judges). Faddis v. City of Homestead, __ So.3d __ (Fla. 3d DCA, No. 3D14-121, 2/11/2015).
Second DCA reverses verdict for defendants in personal injury case and remands for new trial, refusing to reward defense counsel’s “’gotcha’ tactics.” [Added 2/11/15]
Plaintiffs, Wife and Husband, sued over a slip-and-fall by Wife allegedly caused by spilled pesticide. Plaintiffs filed a motion in limine to exclude, on hearsay grounds, any references in Wife’s medical records to her slipping on spilled water. The court granted the motions, and 1500 pages of redacted medical records were admitted at trial.
By mistake, however, two references in the medical records were not redacted. Defense counsel spotted there references and argued to the court that he should be able to mention them in closing argument to the jury. The court allowed him to do that because the records had already been admitted into evidence. The jury returned a verdict for the defendants.
The Second DCA reversed, stating: “There is no question that the trial court abused its discretion in allowing this inadmissible evidence to go to the jury and that the error was extremely prejudicial to [Plaintiffs’] case. It is even more troubling to us that counsel requested to introduce inadmissible evidence under these circumstances.” The appeals court indicated that defense counsel should have drawn the court’s attention to the error so that it could be corrected, rather than compounding it by using it before the jury. “The trial court should not have rewarded this ‘gotcha’ tactic, and we will not do so here.”
In a closing footnote, the court made these observations about the professionalism of defense counsel’s conduct: “1We also note that lawyers, as officers of the court, have a special duty ‘to avoid conduct that undermines the integrity of the adjudicative process.’ R. Regulating Fla. Bar 4-3.3 cmt. The Oath of Admission to The Florida Bar obligates attorneys to respect the court as well as act with fairness and integrity toward opposing parties and their counsel at all times. See Oath of Admission to The Fla. Bar (‘I will maintain the respect due to courts of justice and judicial officers . . . . To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.’); see also R. Regulating Fla. Bar 4-3.3 (addressing candor toward the tribunal); 4-3.4 (addressing fairness to opposing party and counsel). Further, The Florida Bar’s Creed of Professionalism makes clear that lawyers should be guided by a sense of fair play and never allow their silence to mislead anyone. Fla. Bar Creed of Prof’lism (‘I will strictly adhere to the spirit as well as the letter of my profession’s code of ethics, to the extent that the law permits and will at all times be guided by a fundamental sense of honor, integrity, and fair play. . . . I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will not improperly permit my silence or inaction to mislead anyone.’).” Andreaus v. Impact Pest Management, Inc., __ So.2\3d __ (Fla. 2d DCA, No. 2D14-1688, 2/6/2015).
Florida Bar Board of Governors adopts “Professionalism Expectations” for Florida lawyers. [Added 2/3/15]
At its meeting in Tallahassee on January 30, 2015, the Florida Bar Board of Governors adopted a set of “Professionalism Expectations” for Florida lawyers. The Professionalism Expectations were prepared for the Board by the Bar’s Committee on Professionalism.
The Professionalism Expectations draw from both the Rules of Professional Conduct and “the long-standing customs of fair play, civil, and honorable legal practice in Florida.” The Professionalism Expectations provide guidance to lawyers in seven key areas: (1) Commitment to Equal Justice Under the Law and to the Public Good; (2) Honest and Effective Communication; (3) Adherence to a Fundamental Sense of Honor, Integrity, and Fair Play; (4) Fair and Efficient Administration of Justice; (5) Decorum and Courtesy; (6) Respect for the Time and Commitments of Others; and (7) Independence of Judgment.
Click here to go to the Professionalism Expectations.
Supreme Court amends Code for Resolving Professionalism Complaints to grant immunity from civil liability to persons on Local Professionalism Panels and Circuit Committees on Professionalism. [Added 2/2/15]
In 2013 the Florida Supreme Court adopted the Code for Resolving Professionalism Complaints, which established Local Professionalism Panels and Circuit Committees on Professionalism throughout the state. In re Code for Resolving Professionalism Complaints, 116 So.3d 280 (Fla. 2013). After the responsibilities of these local entities, the Court decided to amend the Code for Resolving Professionalism Complaints by adding new Section 4, titled “Immunity,” which provides: “4.1. Local Professionalism Panels and Circuit Committees on Professionalism: The members of the Local Professionalism Panels, staff persons assisting those panels, members of the Circuit Committees on Professionalism, and staff persons assisting those committees, shall have absolute immunity from civil liability for all acts in the course and scope of their official duties.” In re Amendment to the Code for Resolving Professionalism Complaints, __ So.3d __ (Fla., No. SC15-75, 1/29/2015), 2015 WL 357969.
Fifth DCA criticizes improper prosecutorial argument, urging lawyers to avoid devolving into “‘win at all costs’ mentality.” [Added 1/14/15]
The Fifth DCA reversed a criminal defendant’s felony battery conviction, concluding that “the cumulative effect of the State’s improper comments in both its opening statement and closing argument deprived [the defendant] of a fair trial.” The objectionable comments referred to facts not in evidence, implied that that the State only charges those who are guilty, bolstered the credibility of police witnesses, stated improper personal opinions of the prosecutor, and sought to arouse sympathy for the victim.
The court concluded its opinion with a cautionary comment regarding unprofessional conduct: “We remind counsel that unprofessionalism not only affects the parties in the immediate proceeding but adversely affects the perception of justice itself. Our profession has never been and should never devolve into a ‘win at all costs’ mentality. If it does, we all lose.” Brinson v. State, __ So.3d __ (Fla.5th DCA, No. 5D14-653, 1/2/2015), 2015 WL 24089.
In “textbook case of why the legislature authorized an aaward of fees against obstinate public entities such as Appellant,” Fifth DCA sanctions a county for filing frivolous appeal.Orange County v. Hewlings, __ So.3d __ (Fla. 5th DCA, No. 5D13-3775, 12/12/2014), 2014 WL 6990570.
Fourth DCA chastises lawyer for “lobbing acrimonious grenades in the form of unprofessional comments directed at opposing counsel and the trial court.” Lieberman v. Lieberman, __ So.3d __ (Fla. 4th DCA, No. 4D14-509, 11/26/2014).
Third DCA imposes 57.105 sanctions in equal shares against party and his lawyer for pursuing meritless appeal.Nordt v. Nordt, ___ So.3d __ (Fla. 3d DCA, Nos. 3D13-2415, 3D13-2845, 10/15/2014).
Lawyer hit with a sanction of appellate fees and referred to Florida Bar for pursuing frivolous appeal.Schwades v. America’s Wholesale Lender, __ So.3d __, 39 Fla.L.Weekly D1906 (Fla. 5th DCA, No. 5D13-3518, 9/5/2014), 2014 WL 4374891.
Fifth DCA criticizes state’s counsel in criminal appeal for ignoring relevant case law relied on by opposing party rather than trying to distinguish it.Schepman v. State, __ So.3d __ (Fla. 5th DCA, Nos. 5D13-2290, 5D13-2813, 9/19/2014).
Fifth DCA reverses criminal conviction for fundamental error in closing argument, calling prosecutor’s conduct “unprofessional.”Crew v. State, __ So.3d __ (Fla. 5th DCA, No. 5D12-4911, 8/29/2014).
Although lawyer’s behavior was “not professional,” trial court abused discretion in imposing sanctions for creating “atmosphere of anxiety and hostility” that disrupted compulsory medical exam.Rush v. Burdge, __ So.3d __ (Fla. 2d DCA, No. 2D13-1175, 7/11/2014). ~Rush v. Burdge, __ So.3d __ (Fla. 2d DCA, No. 2D13-1175, 7/11/2014).
Fourth DCA publishes opinion serving as “primer” for prosecutors and criminal defense counsel on improper arguments and failure to preserve error.Augustine v. State, __ So.3d __ (Fla. 4th DCA, No. 4D12-2881, 5/14/2014), 2014 WL 1908817.
Mumbling profanities in foreign language nets lawyer contempt conviction in case where “counsel for neither party distinguished himself by his conduct.” [Added 4/22/14]
In a case described by the Third DCA as one in which “counsel for neither party distinguished himself by his conduct,” Lawyer was found in direct criminal contempt of court for two offenses: a hand gesture allegedly directed toward opposing counsel; and “the mumbling, in Romanian, of profanities at opposing counsel.”
On appeal the Third DCA vacated the hand gesture conviction for insufficient evidence. The appeals court, however, affirmed the contempt conviction for the cursing in Romanian count. The court noted that Lawyer “somehow is under the impression that cursing in his native tongue is somehow less contemptuous than cursing in English.” The court disagreed. The court further noted that it “cannot quarrel with [Lawyer’s] self-assessment” that Lawyer had “blurted out” to the trial court: “I don’t know what common sense is. I lost that a long time ago.” The Third DCA referred Lawyer to the Florida Bar for disciplinary proceedings. Michaels v. Loftus, __ So.3d __ (Fla. 3d DCA, No. 3D13-1294, 4/2/2014).
Fifth DCA imposes 57.105 sanctions on party and her lawyer, noting that her arguments on appeal were as frivolous as her claim in the underlying case. Badgley v. SunTrust Mortgage, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D13-2500, 3/14/2014).
Supreme Court ups lawyer’s suspension to 2 years for unprofessional conduct toward judges and opposing counsel. [Added 11/4/13] -- Florida Bar v. Norkin, __ So.3d __, 38 Fla.L.Weekly S786 (Fla., No. SC11-1356, 10/31/2013), 2013 WL 5878901.
Despite granting motion to reinstate appeal it had dismissed, Fifth DCA reiterates referral of counsel to Florida Bar for ethical concerns. [Added 10/22/13] -- Montijo v. State, 123 So.3d 133 (Fla. 5th DCA 10/11/2013).
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 9/11/2013).
Third DCA calls on prosecutors and defense counsel to be more professional and urges trial courts to respond firmly to unprofessional argument. [Added 6/28/13] -- Fagans v. State, 116 So.3d 569 (Fla. 3d DCA 6/19/2013).
Supreme Court adopts “Code for Resolving Professionalism Complaints” effective immediately. [Added 6/7/13] -- In re: Code for Resolving Professionalism Complaints, 116 So.3d 280 (Fla. 6/6/2013).
Calling the quality of their legal work “disturbing,” Fifth DCA orders 3 lawyers to show cause why they should not be sanctioned. [Added 5/20/13] -- Hagood v. Wells Fargo, N.A., 125 So.3d 1012 (Fla. 5th DCA 6/28/2013).
Fourth DCA reverses convictions in 2 cases due to improper prosecutorial argument. [Added 3/13/13] -- In 2 recent cases the Fourth DCA reversed criminal convictions and remanded for new trial due to improper argument by the prosecution: Becker v. State, 110 So.3d 473 (Fla. 4th DCA 3/6/2013); Petruschke v. State, 125 So.3d 274 (Fla. 4th DCA 3/6/2013).
Second DCA criticizes lawyer’s improper argument but concludes it does not rise to level of fundamental error. [Added 3/7/13] -- Carnival Corp. v. Jimenez, 112 So.3d 513 (Fla. 2d DCA 2/27/2013).
Fifth DCA judge criticizes professionalism of assistant state attorney, saying State should “demand better” from its prosecutors. [Added 1/28/13] -- Benoit v. State, 113 So.3d 939 (Fla. 5th DCA 2013).
Fifth DCA criticizes level of professionalism demonstrated by lawyer representing client in criminal appeal. [Added 1/6/13] -- Bell v. State, 114 So.3d 229 (Fla. 5th DCA 2013).
Criticizing professionalism of trial counsel, Fifth DCA affirms order striking pleadings of lawyer’s client as sanction. [Added 9/25/12] -- Adams v. Barkman, 114 So.3d 1021 (Fla. 5th DCA 2012).
Fifth DCA orders imposition of sanctions and refers counsel to the Florida Bar for “willful non-disclosure of truthful facts in discovery.” [Added 8/15/12] -- Jones v. Publix Super Markets, Inc., 114 So.3d 998 (Fla. 5th DCA 2012).
Third DCA affirms section 57.105 fee award for "frivolous and dilatory tactics," but orders it paid in equal parts by party and his lawyer. [Added 8/1/12] -- Stratton v. 6000 Indian Creek, LLC, 95 So.3d 334 (Fla. 3d DCA 7/25/2012).
Fifth DCA criticizes professionalism of insurer’s counsel in filing, and then not withdrawing, motion to strike opponent’s answer brief. [Added 7/26/12] -- Lopez v. State Farm Florida Ins. Co., 114 So.3d 991 (Fla. 5th DCA 2012). Criticizing prosecutor’s professionalism,
Supreme Court reverses death sentence and remands for new penalty phase proceeding. [Added 7/18/12] -- Delhall v. State, 95 So.3d 134 (Fla. 7/12/2012).
Fourth DCA judge criticizes lawyers for pushing to exceed the bounds of permissible discovery. [Added 7/5/12] -- Coopersmith v. Perrine, 91 So.3d 246 (Fla. 4th DCA 6/27/2012).
Judge’s actions to control attorney behavior in courtroom are not grounds for disqualification, per Third DCA. [Added 6/29/12] -- Bert v. Bermudez, 95 So.3d 274 (Fla. 3d DCA 6/20/2012).
Fifth DCA dissenting opinion urges reversal due to lawyer’s unprofessional comments about opposing expert witness. [Added 6/20/12] -- Rogers v. Bhowani, 89 So.3d 1074 (Fla. 5th DCA 2012).
Supreme Court criticizes lawyer for disregarding “spirit” of rules governing post-trial communication with jurors. [Added 6/15/12] -- Van Poyck v. State, 91 So.3d 125 (Fla. 2/16/2012) (revised opinion).
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).
First DCA commends professionalism of criminal prosecutors who conceded error regarding Faretta issue. [Added 5/9/12] -- Bowers v. State, 85 So.3d 1230 (Fla. 1st DCA 2012).
Fifth DCA criticizes professionalism of lawyer who “strongly disagreed” with trial court’s order in family law case. [Added 5/7/12] -- Robinson v. Robinson, 88 So.3d 973 (Fla. 5th DCA 2012).
Third DCA cautions lawyers against filing or relying on extra-record documents and denies appellate fees for that reason. [Added 4/25/12] -- Velazquez v. South Florida Federal Credit Union, 89 So.3d 952 (Fla. 3d DCA 4/18/2012).
Citing "textbook example of legal chutzpah," Third DCA affirms denial of disbarred lawyer's charging lien for costs. [Added 2/15/12] -- Wingate v. Celebrity Cruises, LTD, 79 So.3d 180 (Fla. 3d DCA 2012).
Defense counsel in a civil case “stepped over the behavioral bounds” so often during trial that the Fifth DCA reversed the judgment. [Added 2/8/12] -- Irizarry v. Moore, 84 So.3d 1069 (Fla. 5th DCA 2012).
Two District Courts of Appeal criticize the professionalism of counsel in mortgage foreclosure cases. [Added 12/29/11] -- Land Development Services, Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865 (Fla. 2d DCA 2011); Vilvar v. Deutsche Bank Trust Co. Americas, 83 So.3d 853 (Fla. 4th DCA 2011).
Supreme Court amends the Oath of Admission to the Bar to stress civility. [Added 9/14/11] -- In re: Oath of Admission to the Florida Bar, 73 So.3d 149 (Fla. 2011).
Third DCA criticizes what it euphemistically calls "candor" and "courage" of insurer and its counsel. [Added 8/19/11] -- Ramirez v. United Auto Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011).
Fifth DCA reverses verdict due to improper argument, and urges professionalism on retrial. [Added 8/12/11] -- City of Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011).
Fourth DCA criticizes prosecutor's closing argument as a "checklist" of improper argument. [Added 8/4/11] - Roberts v. State, 66 So.3d 401 (Fla. 4th DCA 2011).
In unusual case, Third DCA sanctions debtors and their counsel for abusing the legal process in a mortgage foreclosure case. [Added 6/28/11] -- JPMorgan Chase Bank, N.A. v. Hernandez, __ So.3d ___, 36 Fla.L.Weekly D1328 (Fla. 3d DCA, No. 3D10-1099, 6/22/2011), 2011 WL 2499641.
Lawyer who tried to buy life insurance policy without insurable interest is referred by 5th DCA to Florida Bar. [Added 5/15/11] -- TTSI Irrevocable Trust v. ReliaStar Life Ins. Co., 60 So.3d 1148 (Fla. 5th DCA 2011).
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).
Fourth DCA reverses judgment and criticizes "gotcha" tactics of insurer's defense counsel. [Added 4/28/11] -- Central Square Tarragon LLC v. Great Divide Ins. Co., __ So.3d ___ (Fla. 4th DCA, No. 4D09-4795, 7/6/2011) (on rehearing).
First DCA affirms grant of new trial due to improper argument by defense counsel. [Added 4/20/11] -- Linzy v. Rayburn, 58 So.3d 424 (Fla. 1st DCA 2011).
Third DCA criticizes counsel's use of discovery in insurance dispute as an attention-getting device. [Added 3/15/11] -- General Star Indemnity Co. v. Atlantic Hospitality of Florida, LLC, 57 So.3d 238 (Fla. 3d DCA 2011).
Court erred in not awarding 57.105 fees against bank in dismissed mortgage foreclosure case; lawyers' professionalism criticized. [Added 2/28/11] -- South Bay Lakes Homeowners Association, Inc. v. Wells Fargo Bank, N.A., 53 So.3d 1239 (Fla. 2d DCA 2011). NOTE: For another foreclosure case in which the conduct of counsel was criticized, see Jade Winds Ass'n, Inc. v. Citibank, N.A., 63 So.3d 819 (Fla. 3d DCA 2011).
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).
Fifth DCA orders lawyer to show cause why sanctions should not be imposed for filing improper motion for rehearing. [Added 1/15/11] -- Marion v. Orlando Pain & Medical Rehabilitation, 67 So.3d 264 (Fla. 5th DCA 2011).
Fifth DCA criticizes lawyer for filing appeal relating to plea process that he participated in without objection. [Added 12/17/10] -- Barreto v. State, 50 So.3d 738 (Fla. 5th DCA 2010).
Supreme Court adds to list of subjects that may be tested on Florida bar examination. [Added 12/10/10] -- In re: Amendments to Rules of the Supreme Court Relating to Admissions to the Bar, 51 So.3d 1144 (Fla. 2010).
Court makes UPL observation and disciplinary referral to Florida Bar in appellate opinion. [Added 11/29/10] -- Opella v. Bayview Loan Servicing, LLC, 48 So.3d 185 (Fla. 3d DCA 2010).
Fourth DCA urges Supreme Court to allow trial courts to sanction attorneys for reckless misconduct, not just bad faith. [Added 11/5/10] -- ivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010).
Third DCA reverses substantial verdict based on improper argument by plaintiff's counsel. [Added 9/1/10] -- Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010).
Fourth DCA criticizes lawyers for failure to comply with candor-toward-the-tribunal rule. [Added 8/31/10] -- Dept. of Children and Families v. D.B.D., 42 So.3d 916 (Fla. 4th DCA, No. 4D09-4862, 8/25/2010).
Fourth DCA reverses criminal conviction due to prosecutor's improper closing argument. [Added 8/19/10] -- Wicklow v. State, 43 So.3d 85 (Fla. 4th DCA 2010).
Third DCA reverses another substantial verdict due to improper argument by same lawyer. [Added 8/16/10] -- Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA, No. 3D08-176, 8/4/2010).
Conduct resulting in finding of no probable cause can be used as aggravating factor in disciplinary case, per Florida Supreme Court. [Added 6/30/10] -- Florida Bar v. Ratiner, 46 So.3d 35 (Fla. 2010).
First DCA cautions criminal defense lawyer against repeatedly raising "non-meritorious" arguments court has rejected before. [Added 6/23/10] -- Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010).
Third DCA criticizes law firm's actions but rules that firm is protected by litigation immunity. [Added 3/22/10] - Fernandez v. Haber & Ganguzza, LLP, 30 So.3d 644 (Fla. 3d DCA 2010).
First DCA imposes 57.105 fees against party and his lawyer who sought certiorari review after unsworn motion to disqualify JCC was denied. [Added 3/5/10] -- Skarka v. Lennar Homes, Inc./Broadspire, 29 So.3d 1170 (Fla. 1st DCA 2010).
Civil theft judgment against lawyer who left law firm and took clients with him is reversed, despite conduct called "loathsome" by DCA. [Added 2/10/10] -- Winters v. Mulholland, 33 So.3d 54 (Fla. 2d DCA 2010).
Fourth DCA comments critically on lawyers' professionalism in filing "emergency" motions. [Added 10/23/09] -- USAA Casualty Ins. Co. v. Pembroke Pines MRI, Inc., 24 So.3d 588 (Fla. 4th DCA 2009).
Trial notice is not "a hunting license" to engage in unprofessional behavior, Fifth DCA judge warns. [Added 9/22/09] -- Allen v. State, 17 So.3d 897 (Fla. 5th DCA 2009).
Supreme Court again criticizes prosecutor's closing argument, but it did not rise to level of fundamental error. [Added 9/1/09] -- Hayward v. State, 24 So.3d 17 (Fla. 2009).
Court may individually assess personal representative for attorney's fees resulting from frivolous litigation, even absent bad faith finding. [Added 6/21/09] -- Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009).
Criminal conviction reversed due to prosecution's improper closing argument. [Added 6/16/09] -- Fleurimond v. State, 10 So.3d 1140 (Fla. 3d DCA 2009).
Despite improper argument that one judge called "outrageous," Third DCA affirms criminal conviction. [Added 4/28/09] -- Williams v. State, 10 So.3d 218 (Fla. 3d DCA 2009).
Although criticizing lawyer's conduct as "reprehensible," First DCA reverses section 57.105 attorney's fees sanction. [Added 4/7/09] -- Campbell v. Dept. of Business and Professional Regulation, 9 So.3d 59 (Fla. 1st DCA 2009).
Fourth DCA affirms order sanctioning lawyer for bad-faith litigation conduct. [Added 11/29/08] -- Shniderman v. Fitness Innovations and Technologies, Inc., 994 So.2d 508 (Fla. 4th DCA 2008).
Third DCA reverses dismissal of case that was imposed as sanction for actions of plaintiff's lawyer. [Added 9/9/08] -- Burgess v. Pfizer, Inc., 990 So.2d 1140 (Fla. 3d DCA 2008).
Jury verdict is reversed due to counsel's statement during voir dire that he was a "consumer justice attorney" representing an individual rather than a "fancy company." [Added 8/26/08] -- Hollenbeck v. Hooks, 993 So.2d 50 (Fla. 1st DCA 2008).
F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic." [Added 8/13/08] -- Yang Enterprises, Inc. v. Georgalis, 988 So.2d 1180 (Fla. 1st DCA 2008).
Expressing skepticism regarding some motions to dismiss alleging fraud on the court, Fifth DCA reverses dismissal order entered without evidentiary hearing. [Added 7/8/08] -- Bologna v. Schlanger, 995 So.2d 526 (Fla. 5th DCA 2008).
Lawyer who failed to appear at court-ordered mediation is sanctioned by court and referred to Florida Bar. [Added 6/18/08] -- Mojzisik v. Estrada, 983 So.2d 699 (Fla. 5th DCA 2008).
Fourth DCA is critical of criminal defense counsel's argument concerning state's conduct. [Added 6/18/08] -- State v. Martin, 982 So.2d 1288 (Fla. 4th DCA 2008).
Lawyer's conduct before judge is criticized, but finding that lawyer was guilty of direct criminal contempt is reversed. [Added 5/13/08] -- Wiggs v. State, 981 So.2d 576 (Fla. 5th DCA 2008).
Lawyer ordered to show cause why he should not be sanctioned for filing improper motion for rehearing and clarification. [Added 5/5/08] -- Ayala v. Gonzalez, 984 So.2d 523 (Fla. 5th DCA 2008).
Trial court's order granting summary judgment is reversed due to "incompetence" of party's original lawyer. [Added 4/8/08] -- Olesh v. Greenberg, 978 So.2d 238 (Fla. 5th DCA 2008).
Verdict for slip-and-fall plaintiff is reversed due to "improper and unprofessional" argument and trial conduct by plaintiff's counsel. [Added 2/19/08] -- SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008).
Fifth DCA criticizes conduct of lawyers involved in placing irrelevant, prejudicial evidence before jury. [Added 1/10/08] -- Williams v. Lowe's Home Centers, Inc., 973 So.2d 1180 (Fla. 5th DCA 2008).
First DCA imposes attorney's fees under Fla.Stat. sec. 61.16(1) against appellant for filing frivolous appeal in domestic relations matter. [Added 11/30/07] -- Lahodik v. Lahodik, 969 So.2d 533 (Fla. 1st DCA 2007).
Questioned fee arrangement does not result in reversal of conviction, but defense counsel's handling of murder weapon does. [Added 11/14/07] -- Alessi v. State, 969 So.2d 430 (Fla. 5th DCA, 2007).
Lawyer has no legal duty to stop someone from illegally taping conversation, but could face liability for disclosing or using tape. [Added 10/29/07] -- Horning-Keating v. Employers Insurance of Wausau, 969 So.2d 412 (Fla. 5th DCA 2007). NOTE: See also Dreggors v. Employers Ins. of Wausau, ___ So.2d ___, 32 Fla.L.Weekly D2727 (Fla. 5th DCA, Nos. 5D05-4047, 5D05-4048, 5D05-4049, 5D05-4050, 5D06-620, 5D06-621, 5D06-622, 5D06-623, 11/16/2007), 2007 WL 3390888.
"Highly improper, unprofessional argument" results in reversal of criminal conviction. [Added 9/20/07] -- Chavers v. State, 964 So.2d 790 (Fla. 4th DCA 2007).
Fifth DCA chastises lawyer who filed motion for rehearing on the basis that she did not understand reason for court's per curiam affirmance. [Added 8/24/07] -- Lowry v. State, 963 So.2d 321 (Fla. 5th DCA 2007).
Second DCA reminds lawyers to present facts and law "in an accurate and forthright manner." [Added 6/14/07] -- Brown v. State, 958 So.2d 1029 (Fla. 2d DCA 2007).
Lawyer commended for candor in seeking amount of fees orally agreed to rather than amount provided in written co-counsel contract [Added 4/6/07] -- Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007).
Trial court abused discretion by denying motion for new trial based on non-disclosure by juror (who happened to be a lawyer) of her personal litigation history. [Added 4/4/07] -- Pereda v. Parajon, 957 So.2d 1194 (Fla. 3d DCA 2007).
Judge did not err by allowing jurors to continue deliberations until after midnight over defense counsel's objection; lawyers criticized for unrealistic assessment of time required. [3/15/07] -- Green v. State, 951 So.2d 962 (Fla. 1st DCA 2007).
Fifth DCA cautions against "patently overbroad" discovery requests and urges lawyers to work together to "reasonably narrow" disputed discovery issues. [Added 1/23/07] -- Life Care Centers of America v. Reese, 948 So.2d 830 (Fla. 5th DCA 2007).
"Offensive remarks" and accusations contained in appellate briefs lead to award of Fla.Stat. sec. 57.105 attorney's fees against lawyer. [9/18/06] --Thomas v. Patton, 939 So.2d 139 (Fla. 1st DCA 2006).
Lawyer commended for professionalism in candidly accepting blame for conduct leading to imposition of sanctions. [Added 5/8/06] -- Doorstep Beverages of Longwood, Inc. v. Collier, 928 So.2d 482 (Fla. 5th DCA 2006) (on rehearing).
In appropriate case, appellee or its counsel may be sanctioned by appellate court for defending "indefensible" order of trial court. [Added 7/29/05] -- Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005).
Lawyer acted unprofessionally by making unsupported charges against trial judge. [Added 8/1/03] -- Shortes v. Hill, 860 So.2d 1 (Fla. 5th DCA 2003).