Conflict rule governing concurrent representation of clients (RPC 4-1.7) does not permit analysis of whether conflict is "material."  [Added 1/14/10]

    Claimant filed petitions for workers' compensation benefits against both Lincoln/Guarantee and Wentworth/Summit.  Each denied responsibility, with Lincoln/Guarantee alleging that Claimant was a borrowed servant of Wentworth and Wentworth/Summit alleging that Claimant was an employee of Lincoln.  Law Firm represented Wentworth/Summit.  About two months before the final hearing, Guarantee retained Law Firm "to participate in an audit of Lincoln to determine whether the claimant was listed in Lincoln’s payroll submissions and to locate the owner of Lincoln."  When Lincoln/Guarantee's lawyer learned that Law Firm was representing Guarantee, he moved to disqualify Law Firm from representing Wentworth/Summit in the workers' compensation case.  The Judge of Compensation Claims ("JCC") denied the motion, ruling that there was no material conflict.  Lincoln/Guarantee petitioned the First DCA for a writ of certiorari.

    The First DCA granted the petition and vacated the order denying disqualification.  "Rule Regulating the Florida Bar 4-1.7 forbids a lawyer from representing two clients in the same matter unless the lawyer reasonably believes the representation will not adversely affect the responsibilities to each client and each client consents in writing or on the record.  To disqualify a law firm from concurrently representing a  party whose interests are adverse, a client need only show that an attorney/client relationship exists."  Law Firm conceded that it represented both Lincoln/Guarantee and Wentworth/Summit at the same time.  "[T]he JCC erred in finding that the conflict had to be material.  Rule 4-1.7 leaves no room for a 'materiality' analysis.  When [Law Firm] failed to prove it had the written consent from each client, and failed to prove that the representation of both clients would not adversely affect the responsibilities to each client, the JCC should have granted the motion to disqualify."

    The appellate court quoted the explanation of Fifth DCA in Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 498 (Fla. 5th DCA 2004), that Rule 4-1.7 is "based on the ethical-concept requirement that a lawyer should act with undivided loyalty for his client and not place himself or herself in a position where a conflicting interest may affect the obligations of an ongoing professional relationship.  . . .  Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession."  Lincoln Associates & Construction, Inc. v. Wentworth Construction Co., Inc., __ So.3d ___ (Fla. 1st DCA, No. 1D09-2268, 1/12/2010).

Fourth DCA comments critically on lawyers' professionalism in filing "emergency" motions.  [Added 10/23/09]

    Insurer filed with the Fourth DCA what was described as an "emergency" petition for writ of certiorari, seeking review of an order from a circuit court acting in its appellate capacity.  Insurer alleged that a premature bad faith claim was pending in the trial court, and that Insurer had sought certiorari relief in the circuit court to prevent the plaintiff from obtaining bad faith discovery before liability had been decided in the underlying action.  The trial court had not ordered Insurer to produce any bad faith discovery, although it denied Insurer's motion for protective order.  Insurer "then filed an 'emergency' motion for review in the circuit court essentially seeking review of the county court order denying a stay.  The circuit court held a brief hearing, concluded there was no 'emergency' and deferred ruling on the merits of the motion for review."  Insurer then petitioned the Fourth DCA.

    The DCA denied the petition, commenting:  "The court system is overloaded.  See In re Certification of Need for Additional Judges, 3 So.3d 1177 (Fla. 2009).  As a result of budget cuts in recent years, the courts have lost staff, which has increased the workload of judges and remaining personnel and slowed the disposition of pending cases.  Meanwhile, civil and criminal filings have increased.  To safeguard the rights of litigants and assure meaningful review in time sensitive cases, certain types of cases, such as the termination of parental rights and the denial of pretrial bond, are reviewed on an expedited basis.  . . .  Pleadings filed as emergencies disrupt court procedures and interrupt work on cases that were already pending.  Consequently, an attorney who seeks 'emergency' review immediately loses credibility if this court discovers there is no true emergency."  USAA Casualty Ins. Co. v. Pembroke Pines MRI, Inc., __ So.3d ___, 34 Fla.L.Weekly D2169 (Fla. 4th DCA, No. 4D09-3832, 10/21/2009), 2009 WL 3364974.

Trial notice is not "a hunting license" to engage in unprofessional behavior, Fifth DCA judge warns.  [Added 9/22/09]

    The Fifth DCA affirmed per curiam a criminal defendant's conviction.  One judge wrote a concurring opinion in which he criticized the unprofessional behavior of trial counsel:  "My sympathy lies with the trial judge who put up with the boorish behavior of these professionals in order to get this case to the jury.  He exercised far more patience than I would have.  I hesitate to begin a list of the questionable behaviors engaged in during the evidentiary portion of the trial, but chief among them were personal sniping at opposing counsel and arguing with the rulings of the trial judge.  The closing arguments of the two defense lawyers, for example, proved to be quite a challenge.  By my count there were 12 objections by the State (the vast majority of which were sustained), requiring five separate bench conferences.  Each bench conference required repeated admonitions by the trial judge to modulate voices downward.  Most of the suspect bits of argument concerned misstatements of the facts, misstatements of the law, or giving personal opinions, none of which are appropriate.  One cannot read the transcript without being saddened.  These are obviously good  lawyers and zealous advocates.  The problem is that they have somehow mistaken a trial notice for a hunting license.  This is not good for the profession and not good for the involved individuals.  I sincerely hope that these lawyers will be more circumspect in the future."  (Footnote omitted.)  Allen v. State, 17 So.3d 897 (Fla. 5th DCA 2009).

Florida Supreme Court again criticizes prosecutor's closing argument, but it did not rise to level of fundamental error.  [Added 9/1/09]

    During a first-degree murder trial the prosecutor made a penalty-phase closing argument that was not objected to.  Defendant subsequently appealed, arguing inter alia that the argument constituted fundamental error.  Specifically, Defendant alleged that the prosecutor "improperly commented on [Defendant's] character and drew a comparison between his worth and that of" the victim.  The Supreme Court agreed that the argument was improper.  "[Defendant] argues that the State did not follow the law and improperly used victim impact information to compare the characters and choices of [the victim] and [Defendant] during the penalty phase closing argument.  We agree.  Although the victim impact evidence itself was proper, the prosecutor‘s use of it in his closing argument – comparing the choices made by the victim and those made by [Defendant] – was improper."

    Although improper, the Court further concluded that the argument did not constitute fundamental error.  See Wheeler v. State, 4 So.3d 599 (Fla. 2009).

    The Court, however, criticized the prosecution.  "[W]e feel compelled to once again voice our disapproval of this type of prosecutorial comment comparing the life or choices of the victim with that of the defendant.  The misconduct was exacerbated by the prosecutor‘s acknowledgment immediately prior to the commencement of the penalty phase of the impropriety of the use of victim impact evidence in such a manner.  Despite his agreement to refrain from using victim impact evidence to make 'characterizations and opinions about . . . the defendant' the prosecutor proceeded to needlessly stain the record with the clearly improper remarks.  As we did in Wheeler, we again hold that victim-defendant comparisons are improper and again 'caution the State and its prosecutors to remain mindful of the limited purpose for which victim impact evidence may be introduced and to stay strictly within those parameters.'  Wheeler, 4 So. 3d at 611."  Hayward v. State, 24 So.3d 17 (Fla. 2009).

First DCA imposes appellate attorney's fees against party and her lawyer as sanction under F.S. 57.105.  [Added 7/15/09]

    Plaintiff brought suit against her HMO seeking injunctive relief and attorney's fees due to HMO's alleged refusal to provide coverage for a particular treatment.  As it turned out, however, HMO had agreed to pay for the treatment before Plaintiff filed suit.  The trial court dismissed Plaintiff's claims, emphasizing that "the request for injunctive relief was merely a pretext, and that the true purpose of the suit was for [Plaintiff] to collect attorney's fees."  Despite this, Plaintiff appealed.  The First DCA stated:  "Her persistence is difficult to understand in light of this record.  Obviously, we affirm."

    Additionally, the appeals court imposed appellate attorney's fees in an equal amount against Plaintiff and her lawyer as a sanction under F.S. 57.105(1).  "Fees are appropriate under section 57.105(1) when the party or the parties’ attorney pursued a claim or defense that is without factual or legal merit.  . . .  The test is simply whether the 'party or his counsel knew or should have known, at the time of filing, [that the claims were] not grounded in fact, or were not warranted by existing law or by reasonable argument for extension, modification, or reversal of existing law.'  [Gopman v. Dept. of Education, 974 So.2d 1208, 1210 (Fla. 1st DCA 2008)].  Importantly, section 57.105 'does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported.'  Id.; see also Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003)."

    The court noted that the suit had been brought as a "pretext" and that Plaintiff's argument on appeal "lacks legal and factual merit."  The court stated that [u]nfortunately, refusing to acknowledge unfavorable facts was not an option [Plaintiff] or her attorney possessed.  This conduct is sanctionable as it violates an appellate counsel’s 'ethical obligation to present [] the facts [] accurately and forthrightly.'  Boca-Burger, Inc. [v. Forum], 912 So.2d [561 (Fla. 2005)] at 571[.]"

    In a footnote, the court observed that the trial court had "rebuked [Plaintiff]’s counsel, stating the 'suit was a jump-the-gun suit, a gotcha suit.  After you heard that they were going to pay for [the treatment], you rushed the suit, in effect, so that you could try to get your attorney’s fees out of it.'"  Long v. AvMed, 14 So.3d 1264 (Fla. 1st DCA 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).

Two DCAs criticize professional conduct of lawyers practicing before them.  [Added 12/16/08]  --  Hernandez v. Gil, 998 So.2d 651 (Fla. 3d DCA 2008) (meritless arguments; knowing when to decline representation or to contact Center for Professionalism or ethics hotline); R.E. v. Dept. of Children and Families, 996 So.2d 929 (Fla. 4th DCA 2008) (filing brief "without a single citation to the record").

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 judge criticizes professionalism of lawyer defending negligence case.  [Added 11/12/08]  --  Gold v. West Flagler Associates, Ltd., 997 So.2d 1129 (Fla. 3d 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).

Contempt fine against lawyer for failing to appear at hearing is reversed.  [Added 8/29/08]  --  In re: Matter of Steffens, 988 So.2d 142 (Fla. 5th 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).

Fourth DCA criticizes lawyers' professionalism in 2 unrelated cases.  [Added 6/10/2005]  --  Giron v. Fairways of Sunrise Homeowners' Association, Inc., 903 So.2d 1008 (Fla. 4th DCA 2005); Siegel v. Boca Chase Property Owners' Association, Inc., 904 So.2d 557 (Fla. 4th DCA 2005).