Court did not err in reducing punitive damages award in legal malpractice case or excluding testimony that lawyer was disbarred for conduct in unrelated case.  [Added 12/26/11]

    Former client Young sued Law Firm for alleged legal malpractice.  An associate in the firm had represented Young in an employment discrimination suit against BellSouth.  That suit was filed on May 1, 2001.  At that time, however, the Firm "was engaged in settlement negotiations on behalf of Young and several other plaintiffs in a separate action [the Jackson case] against BellSouth."  The May 1 suit was later dismissed due to the statute of limitations; the associate allegedly attached the wrong right-to-sue letter to the complaint.  Young allegedly was not informed about the dismissal of her case until after Jackson had been settled.

    Young sued the Firm for legal malpractice and breach of fiduciary duty, alleging a conflict of interest for the Firm in representing her in the new suit while at the same time negotiating to settle the old suit.  Young alleged, and the jury subsequently found, that Law Firm "knew that the case had been dismissed, but withheld that information from Young so they could settle Jackson and secure the $2.9 million fee and cost reimbursement in that case."  The jury awarded punitive damages of $4.5 million, but the trial court remitted that amount to $2 million, finding that the larger figure "was not supported by evidence that [Law Firm] had sufficient financial resources to support such a verdict without facing bankruptcy."  Young appealed.

    The Fourth DCA affirmed the remittitur decision, finding that the trial court did not abuse its discretion.  "Contrary to Young’s contention, the trial court did not improperly substitute its judgment for that of the jury, but instead properly exercised its discretion in reviewing the award upon the financial information in evidence.  . . .  While a punitive damages award should be painful enough to provide some retribution and deterrence, it should not financially destroy a defendant."  (Footnote and citations omitted.)

    The appellate court also rejected Law Firm's cross-appeal in which it contended "that the trial court abused its discretion by not granting its motion for directed verdict because the evidence did not establish that [Law Firm] caused Young to lose the ability to proceed with her discrimination claims against BellSouth.  The firm maintains that Young unilaterally, intentionally and voluntarily abandoned her discrimination suit against BellSouth, despite the viability of her claims, thereby precluding any action against [Law Firm] for legal malpractice."  Young had testified that, after the dismissal of her Title VII claim due to the error with the right-to-sue letter, she had considerable difficulty finding a lawyer to pursue her employment discrimination case.  The court stated:  "Young introduced sufficient evidence to demonstrate that her voluntary dismissal of the later-filed 2003 suit did not constitute an abandonment or waiver of her claims and did not cause her loss.  Rather, her employment discrimination claims, all of which arose out of the same operative facts as those alleged in her 2001 complaint, were severely damaged, if not destroyed, by defenses available to, and actually raised by, BellSouth.  These included affirmative defenses of res judicata, collateral estoppel, laches, and the rule against splitting causes of action.  Indeed, Young testified that she could not find a lawyer to maintain her employment discrimination claims because their legal viability and economic value had been lost or substantially diminished by the federal district court’s dismissal of her claims in 2001.  Under these facts and circumstances, and viewing the evidence and all inferences in a light most favorable to Young, we cannot find that Young abandoned or waived her claims or that [Law Firm]’s mishandling of her case could have been corrected by pursuit of the second suit."

    The court also rejected another argument on cross-appeal, concluding that the trial court properly excluded evidence that the Firm's associate had been disbarred for misconduct unrelated to the instant case.  Young v. Becker & Poliakoff, P.A., __ So.3d ___, 36 Fla.L.Weekly D2782 (Fla. 4th DCA, No. 4D09-4869, 12/21/2011), 2011 WL 6372994.

Attorney General lacked authority under FDUTPA to issue investigative subpoena to law firm seeking information on its representation of lenders in mortgage foreclosures.  [Added 12/15/11]

    The Office of the Attorney General (“AGO”) issued an investigative subpoena to Law Firm, ostensibly pursuant to the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).  The “general purpose and scope of this investigation extends to possible unfair and deceptive trade practices, unconscionable acts and/or unfair competition of” Law Firm.  The subpoena sought information including, but not limited to:  names and addresses of all lawyers and law firms used by Law Firm to represent clients; names and addresses of lenders represented by Law Firm; names and addresses of servicing companies used by Law Firm; names of notaries who notarized documents; copies of non-disclosure agreements; and fee and bonus information.  Law Firm petitioned to quash the subpoena, arguing “that the OAG lacked authority under FDUTPA because it was not involved in ‘trade or commerce’ as defined by the statute."

    The trial court denied Law Firm’s petition to quash.  The Fourth DCA reversed the lower court and quashed the subpoena, relying on its prior decision in Florida Office of Attorney General v. Shapiro & Fishman, LLP, 59 So.3d 353 (Fla. 4^th DCA 2011).

    The subpoenas in the two cases were “very similar,” according to the appellate court.  In each case, AGO lacked authority under the FDUTPA to issue the subpoena.  “Though the subpoena in the instant case states a different purpose – ‘deceptive trade practices, unconscionable acts and/or unfair competition’ as opposed to ‘advertising and marketing practices’ – it seeks the same information sought in Shapiro & Fishman.  Both subpoenas were designed to elicit information regarding the law firm’s representation in foreclosure cases.  Further, the investigator’s testimony confirmed that the OAG was investigating the same allegations and complaints as those present in Shapiro & Fishman.  Just as in Shapiro & Fishman, the instant alleged conduct by Law Firm does not constitute ‘trade or commerce.’  See also Kelly v. Palmer, Reifler & Assocs., P.A., 681 F.Supp. 2d 1356, 1374–77 (S.D. Fla. 2010) (holding that law firm’s issuance of pre-suit demand letters did not constitute ‘trade or commerce” a n d noting that law firm’s acts – ‘conduct ostensibly occurring during the exercise of a legal remedy – had zero connection whatsoever to any ‘trade or commerce’’).  Here, as in Shapiro & Fishman, the OAG’s subpoena ‘centers on the law firm’s conduct in the processing of foreclosure cases, as opposed to the initial applications for mortgages or the initial lending relationships, which would be more akin to traditional notions of ‘trade or commerce’ as defined by the FDUTPA statute.’  59 So. 3d at 356.”  Law Office of David Stern, P.A. v. Dept. of Legal Affairs, __ So.3d ___, 36 Fla.L.Weekly D2732 (Fla. 4^th DCA, No. 4D10-4708, 12/14/2011), 2011 WL 6183590.

Civil investigative subpoena to law firm is quashed because firm's mortgage foreclosure services were not "trade or commerce" under FDUTPA.  [Added 4/28/11]  --  Florida Office of Attorney General v. Shapiro & Fishman, LLP, 59 So.3d 353 (Fla. 4th DCA 2011).

Lawyer who left a law firm and opened his own practice but earned no income from it may be eligible for unemployment benefits.  [Added 4/25/11]  --  Bryant v. Florida Unemployment Appeals Comm'n, 61 So.3d 1181 (Fla. 1st DCA 2011).

Class action certification upheld in case accusing law firm of violating consumer collection and deceptive trade practices laws.  [Added 1/3/11]  --  Law Offices of David J. Stern, P.A. v. Banner, 50 So.3d 1221 (Fla. 4th DCA 2010).

Lawyer's agreement not to represent anyone against the law firm that formerly employed him does not violate public policy.  [Added 1/3/11]  --  Alan B. Garfinkel, P.A. v. Mager, 57 So.3d 221 (Fla. 5th DCA 2010).

Florida Bar approves opinion requiring lawyers to protect confidentiality of client information stored on devices like copiers, scanners, fax machines, cell phones, and flash drives.  [Added 12/16/10]

    At its December 2010 meeting the Florida Bar Board of Governors approved Florida Ethics Opinion 10-2, which had been promulgated earlier in the year by the Bar's Professional Ethics Committee.  Opinion 10-2 addresses the ethical obligations of a lawyer who chooses to use electronic devices that store information.  These "Devices" may include "computers, printers, copiers, scanners, cellular phones, personal digital assistants ('PDA’s'), flash drives, memory sticks, facsimile machines and other electronic or digital devices."

    The opinion discusses ethical duties of competence (citing Rule 4-1.1, Florida Rules of Professional Conduct), confidentiality (Rule 4-1.6), and supervision (Rule 4-5.3).  Significantly, the opinion applies these duties to situations and circumstances that arise outside of a lawyer's office, such as hotels and copy centers.

    Competence.  Opinion 10-2 states:  "If a lawyer chooses to use these Devices that contain Storage Media, the lawyer has a duty to keep abreast of changes in technology to the extent that the lawyer can identify potential threats to maintaining confidentiality.  The lawyer must learn such details as whether the Device has the ability to store confidential information, whether the information can be accessed by unauthorized parties, and who can potentially have access to the information.  The lawyer must also be aware of different environments in which confidential information is exposed such as public copy centers, hotel business centers, and home offices.  The lawyer should obtain enough information to know when to seek protection and what Devices must be sanitized, or cleared of all confidential information, before disposal or other disposition.  Therefore, the duty of competence extends from the receipt, i.e., when the lawyer obtains control of the Device, through the Device’s life cycle, and until disposition of the Device, including after it leaves the control of the lawyer."

    Confidentiality.  Opinion 10-2 states:  "A lawyer must ensure confidentiality by taking reasonable steps to protect all confidential information under the lawyer’s control.  Those reasonable steps include identifying areas where confidential information could be potentially exposed."

    Duty to supervise others.  Opinion 10-2 states:  "A lawyer’s supervisory responsibility extends not only to the lawyer’s own employees but over entities outside the lawyer’s firm with whom the lawyer contracts to assist in the care and maintenance of the Devices in the lawyer’s control.  If a nonlawyer will have access to confidential information, the lawyer must obtain adequate assurances from the nonlawyer that confidentiality of the information will be maintained."

    Importantly for lawyers, these ethical obligations extend to "sanitization" of Devices no longer being used, such as old copiers or discarded cell phones.  "A lawyer has a duty to obtain adequate assurances that the Device has been stripped of all confidential information before disposition of the Device.  If a vendor or other service provider is involved in the sanitization of the Device, such as at the termination of a lease agreement or upon sale of the Device, it is not sufficient to merely obtain an agreement that the vendor will sanitize the Device upon sale or turn back of the Device.  The lawyer has an affirmative obligation to ascertain that the sanitization has been accomplished, whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office, or by other similar means.  Further, a lawyer should use care when using Devices in public places such as at copy centers, hotel business centers, and outside offices where the lawyer and those under the lawyer’s supervision have little or no control.  In such situations, the lawyer should inquire and determine whether use of such Devices would preserve confidentiality under these rules."

    The headnote published with Opinion 10-2 summarizes the opinion this way:  "A lawyer who chooses to use Devices that contain Storage Media such as printers, copiers, scanners, and facsimile machines must take reasonable steps to ensure that client confidentiality is maintained and that the Device is sanitized before disposition, including: (1) identification of the potential threat to confidentiality along with the development and implementation of policies to address the potential threat to confidentiality; (2) inventory of the Devices that contain Hard Drives or other Storage Media; (3) supervision of nonlawyers to obtain adequate assurances that confidentiality will be maintained; and (4) responsibility for sanitization of the Device by requiring meaningful assurances from the vendor at the intake of the Device and confirmation or certification of the sanitization at the disposition of the Device."

Florida Supreme Court disciplines lawyer who allowed non-lawyer to have signatory authority on escrow account.  [Added 6/10/10]  --  Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010).

Civil theft judgment against lawyer who left law firm and took clients with him is reversed.  [Added 2/10/10]  --  Winters v. Mulholland, 33 So.3d 54 (Fla. 2d DCA 2010).

Venue of legal malpractice case based on disclosure of confidential information is proper not where disclosure took place but where resulting damage occurred.  [Added 10/21/09]  --  Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111 (Fla. 2d DCA 2009).

Law firm not responsible for losses caused by one of its lawyers who acted outside scope of employment and defrauded "investors."  [Added 10/9/09]  --  Saralegui v. Sacher, Zelman, Van Sant, Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009).

Florida Bar Board of Governors approves guidelines regarding "offshoring" of legal services  [Added 4/7/09]

    At its meeting in Miami on April 3, 2009, the Florida Bar Board of Governors approved "Guidelines Regarding Offshoring Legal Services."  The Guidelines were developed by the Bar's Professional Ethics Committee.  The Board had asked the Committee to further study the issue of outsourcing legal services, particularly to foreign countries.  In response, the Committee prepared the Guidelines to accompany Florida Ethics Opinion 07-2.  The Guidelines are reproduced below.

Florida Commission on Ethics renders opinion on possible voting conflict of non-lawyer law firm member who acts as a lobbyist.  [Added 6/25/08]  --  Florida Commission on Ethics Opinion 08-13.

Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal.  [5/9/08]  --  Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008).

Florida Supreme Court discusses whether lawyers who share space are  a "firm" for conflicts imputation purposes.  [Added 11/19/07]  --  Connor v. State, 979 So.2d 852 (Fla. 2007) (revised opinion).