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2007 FLORIDA LEGAL ETHICS REVIEW By: Timothy P. Chinaris Thomas Goode Jones School of Law, Faulkner University, Montgomery, Alabama President, Florida Bar Out-of-State Division Member and Past Chair, Florida Bar Professional Ethics Committee Copyright 2008
The field of legal ethics continues to change and evolve. The following summaries of ethics-related rule changes, rule proposals, cases, and ethics opinions should help busy practitioners keep abreast of relevant developments. Unless otherwise noted the summaries reflect developments in 2007. The summaries are arranged by subject. For continuing updates on Florida legal and judicial ethics developments, please visit the “sunEthics” website (www.sunEthics.com).
2007 RULE CHANGES (AND PROPOSED CHANGES) Florida Bar Board of Governors approves rule allowing past results, testimonials, and characterizations of quality in lawyers’ websites, when accompanied by appropriate disclaimer. In March 2007 the Florida Bar Board of Governors unanimously approved revisions to current Rule 4-7.6, Florida Rules of Professional Conduct, governing lawyers’ websites. If approved by the Florida Supreme Court, the revised rule would require a website’s homepage to comply with all of the Rule 4-7.2 requirements (i.e., general regulations applicable to all forms of advertising), but would permit the interior pages to include past results, testimonials, and statements characterizing the quality of the lawyers’ services – providing that they are factually verifiable and contain appropriate disclaimers. This would be a significant departure from the current rules. Lawyers’ websites would remain exempt from the filing-and-review requirements of Rule 4-7.7 (see Rule 4-7.8(e)). (For reasons unrelated to the content of the proposal, the proposed revisions have not yet been submitted to the Florida Supreme Court.)
Florida Supreme Court amends lawyer advertising rules. In re: Amendments to Rules Regulating The Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (revised opinion). In an opinion originally issued in November 2006 but revised in December 2007, the Florida Supreme Court amended the rules governing lawyer advertising in a number of ways. Some amendments had the effect of tightening advertising regulations, while others relaxed restrictions. Changes proposed by the Florida Bar and approved by the Court include:
The Court rejected some of the Bar’s proposals. The Bar sought elimination of the requirement that a disclosure be made when a non-lawyer spokesperson is used in a television or radio ad. The Court rejected this proposal, stating: “[T]he established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public.” The Court also declined to adopt proposed changes to Rule 4-7.6, concerning computer-accessed communications – which includes lawyers’ websites. "[T]he Court notes that the [Bar's] Board [of Governors] has appointed a special committee to review issues regarding websites and Internet communications. The special committee is charged with making recommendations to the Board if appropriate. Thus, it is not efficient or sound for the Court to address the regulation of Internet advertising at this time . . . The Court will consider the regulation of Internet communications when the Bar files the report of the special committee." Importantly for many lawyers and law firms, in its original opinion the Court left unresolved the issue of whether the advertising rules govern lawyer-to-lawyer communications. The Bar had proposed that communications directed to other lawyers, and communications directed to a lawyer's current or former clients, be exempt from the advertising rules. In its original opinion the Court declined to adopt these proposals. The Bar moved for reconsideration and clarification, asking the Court, inter alia: whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; and whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request. The Court denied the Bar's motion but issued a revised opinion, which largely tracked the original opinion but contained 2 key new features. First, the Court granted the Bar's request to – at least temporarily – have an exemption from the filing and review requirement for communications “mailed only to existing clients, former clients, or other lawyers.” Second, the revised opinion contained a lengthy opinion by Chief Justice Lewis in which he concurred and dissented. He vigorously dissented from the Court's decision to amend Rule 4-7.2 to permit board certified lawyers to refer to themselves in advertising as "experts." He observed: "First, under the commercial-speech doctrine, this Court remains free to restrain deceptive or misleading attorney advertising. Second, 'specialist' and 'expert' are not synonymous; in fact, they are qualitatively different. Furthermore, claims of 'expert' status are inherently misleading. Third, the 'expert' amendments have 'flown under the radar' and have not been adequately or appropriately debated or briefed. Fourth and finally, my view is consistent with both the majority approach across the country, and with Florida’s regulation of another group of certified specialists – board-certified physicians." Finally, and perhaps quite significantly, the Court concluded by requesting "that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising." In its revised opinion the Court stated that the amendments “shall become effective on February 1, 2008, at 12:01 a.m.”
Florida Supreme Court amends Rules Regulating The Florida Bar, including adding new rule governing arbitration clauses in lawyer-client fee contracts. In re: Amendments to the Rules Regulating The Florida Bar, ___ So.2d ___, 33 Fla.L.Weekly S14 (Fla., No. SC06-736, 12/20/2007), 2007 WL 4440381. The lone amendment to the Rules of Professional Conduct was the addition of new Rule 4-1.5(i), titled “Arbitration Clauses.” This rule authorizes a lawyer to include a clause in a lawyer-client fee agreement specifying that any fee dispute will be decided through arbitration, provided: (1) the lawyer advises the prospective client in writing to consider obtaining independent legal advice regarding the advisability of signing the agreement with the arbitration clause; and (2) the agreement contains certain required cautionary language in bold print. Other rule changes approved by the Court concerned:
One proposed change rejected by the Court (at least for the time being) was a proposal to revise the procedural process for amending the Bar rules. The proposal would have added a Court “conference and dialogue” process as an option to the current “case and controversy” process. The Court noted that the proposal raised “several issues that must be studied before implementing such a procedure” and directed the Bar to work with the Court's Rules of Judicial Administration Committee on the matter. The rule amendments are effective on March 1, 2008.
Circuit court mediators are no longer required to be members of the Florida Bar. In re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 969 So.2d 1003 (Fla. 2007). Acting on a proposal from its Committee on Alternative Dispute Resolution Rules and Policy, the Court eliminated the requirement that certified and circuit court mediators be members of the Florida Bar. Florida was in a minority of states with such a requirement. “We understand that by continuing to urge the Court to remove this requirement, the Committee seeks to ensure that Florida maintains its place of preeminence in the alternative dispute resolution field in the United States. After considering the Bar’s comment and the Committee’s well-reasoned response, as well as the numerous comments in this case in support of the Committee’s position, we now remove the Bar membership requirement for certified circuit court mediators . . .” Recognizing that some parties would prefer a mediator with legal training, the Court stated: “[T]here may be situations in which a party to a circuit court mediation may object to the appointment of a mediator who lacks legal training. In such situations, we believe that the circuit court must necessarily appoint a mediator who is a member of The Florida Bar. Accordingly, on our own motion, we also amend Florida Rule of Civil Procedure 1.720(f)(2) to require courts to appoint a certified circuit court mediator who is a member of The Florida Bar upon the request of either party.” The rule amendments were effective November 15, 2007.
Voluntary “Florida Registered Paralegal Program” established. In re: Amendments to the Rules Regulating The Florida Bar -- Florida Registered Paralegal Program, 969 So.2d 360 (Fla. 2007). Responding to a request from the Florida Bar, the Florida Supreme Court approved creation of the “Florida Registered Paralegal Program.” The Program establishes criteria by which paralegals who meet certain minimum standards (e.g., education, work experience), comply with the registration requirements, and adhere to a new "Code of Ethics and Responsibility" may become "Florida Registered Paralegals." The Program is a voluntary registration system, not mandatory regulation of Florida paralegals. The Court viewed the Program as a "first, prudent step toward the desired end" of "establishing high professional standards for the paralegal profession." The Court explicitly left open the possibility that a mandatory regulatory scheme might be implemented in the future. The rules establishing and governing the Program take effect on March 1, 2008, and comprise new Chapter 20, R.Reg.Fla.Bar.
Florida Supreme Court holds Rule 4-5.6(b) (restrictions on right to practice) constitutional. Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). See discussion in “Disciplinary Proceedings” section.
Florida Supreme Court amends rules governing Law School Practice Program (Chapter 11, R.Reg.Fla.Bar). In re: Amendments to Rules Regulating The Florida Bar re; Chapter 11 Task Force, 964 So.2d 690 (Fla. 2007). The Court amended the rules to provide greater clarity regarding the program’s operation.
2007 CASES AND ETHICS OPINIONS (BY SUBJECT) ADVERTISING Florida Supreme Court amends lawyer advertising rules. In re: Amendments to Rules Regulating The Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (revised opinion). See discussion in “2007 Rule Changes” section.
Lawyer licensed only in New York may not open Florida office and advertise for “N.Y. Legal Matters Only” or “Federal Administrative Law.” Gould v. Florida Bar (11th Cir., No. 06-15142, Dec 12, 2007) (not selected for publication in the Federal Reporter), 2007 WL 4403556 , affirming Gould v. Harkness, 407 F.Supp.2d 1357 (S.D.Fla. 2006). In an unpublished opinion the Eleventh Circuit affirmed a U.S. District Court decision that a lawyer licensed only in New York does not have a constitutional right to establish an office in Florida and advertise that he will represent clients on “New York Legal Matters Only” or “Federal Administrative Law.” New York Legal Matters Only. The Florida Bar contended that the lawyer's advertising for these matters would be unlawful. The court agreed. “Under Florida law, it is unlawful for ‘[a]ny person not licensed or otherwise authorized to practice law in [Florida]’ to practice law within the State of Florida. Fla. Stat. § 454.23 (2004). Gould, who is not admitted to the Florida Bar, does not have the authority to practice New York law in Florida. See Fla. Stat., R. Regulating the Fla. Bar 4-5.5(b); Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003); Chandris, S.A. v. Yanakakis, 668 So.2d 180, 184 (Fla.1995); Florida Bar v. Savitt, 363 So.2d 559 (Fla.1978). Because the proposed advertisement concerns unlawful activity, the Florida Bar is entitled to regulate the advertisement. See Cent. Hudson, 447 U .S. at 563-64, 100 S.Ct. at 2350." Federal Administrative Law. The court rejected the lawyer’s assertion that he could advertise and engage in a practice “limited to federal administrative law.” The court stated: “The words ‘federal administrative law’ apply to a broad range of legal issues, and are not limited to the representation of persons before federal agencies. Issues of federal administrative law arise in state and federal courts, as well as before federal agencies. . . . The proposed advertisement for a ‘practice limited to federal administrative law’ is misleading and relates, at least in part, to unlawful conduct. Gould’s proposed speech is not protected by the First Amendment and is subject to regulation by the Florida Bar.”
ATTORNEY-CLIENT RELATIONSHIP Florida Bar ethics committee approves advisory opinion addressing lawyer’s obligations after receiving documents that lawyer’s client had wrongfully obtained. Florida Ethics Opinion 07-1. In a detailed opinion, the Florida Bar Professional Ethics Committee discussed the ethical obligations of a lawyer who receives documents that were wrongfully obtained by the lawyer’s client. The opinion summary states: “A lawyer whose client has provided the lawyer with documents that were wrongfully obtained by the client may need to consult with a criminal defense lawyer to determine if the client has committee a crime. The lawyer must advise the client that the materials cannot be retained, reviewed or used without informing the opposing party that the inquiring attorney and client have the documents at issue. If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation.”
Lawyer appointed as “special counsel” to present mitigation evidence in capital case does not have attorney-client relationship with defendant. Grim v. State, 971 So.2d 85 (Fla. 2007). Criminal Defendant refused to present any mitigation evidence during the penalty phase of his trial, so the court appointed Lawyer to act as “special counsel to investigate and present available evidence at the Spencer hearing.” Defendant was convicted. In his motion for postconviction relief, Defendant alleged that Lawyer had an undisclosed conflict of interest arising from Lawyer's representation of another inmate who had been interviewed by the State but did not testify. The trial court denied Defendant's motion for postconviction relief. Defendant appealed. The Florida Supreme Court affirmed. “Because the appointment of special counsel is solely at the discretion of the trial court, and because special counsel solely represents the public interest, no attorney-client relationship is established between special counsel and the defendant. Therefore, a defendant has no basis for claiming that special counsel’s presentation of mitigation evidence was ineffective.” Because the special counsel did not represent Defendant, Defendant “cannot challenge the effectiveness of [special counsel]’s presentation of mitigation evidence.
Judgment awarding fees to lawyer reversed because there was no evidence lawyer had actual or apparent authority to represent purported corporate client. Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007). A 9-person corporate board of directors was embroiled in an internal dispute, splitting along a 6-to-3 line. Lawyer, who previously represented the corporation on some matters, was asked by 2 officers (President and Vice-president) to represent them in their individual capacities. Lawyer agreed, informing Vice-president "that their agreement for legal services would 'kill' his representation of the corporation, and he made it clear that he would have to bill [the officer] for 'personal representation'." Subsequently the board minority purported to assert control of the corporation and began to pay Lawyer from corporate funds, with Lawyer then purporting to represent the corporation. When Lawyer’s bills later went unpaid, Lawyer withdrew. Lawyer sued and won a judgment against the corporation for unpaid fees. The corporation appealed, asserting that the officers lacked authority to retain Lawyer to represent the corporation. The First DCA agreed and reversed. The court concluded that "[t]here is no competent substantial evidence in the record to support a finding that [President] had either actual or apparent authority to bind the corporation by signing a retainer agreement with [Lawyer]. All of the evidence demonstrates that she did not have such authority." The court stated that there was little doubt that President lacked actual authority to hire Lawyer on to represent the corporation. The court further noted that "[a]pparent authority might be a viable theory of recovery if [Lawyer] reasonably believed that [President] had authority to retain him as the corporation’s lawyer, but that assumption is not reasonable. . . . One faction of the board of directors retained [Lawyer] purportedly on behalf of the corporation to sue another faction of the board. The nature of the engagement was enough in itself to put him on notice that the people hiring him might not speak for the corporation."
Citing Rule of Professional Conduct 4-1.14 (“Client under a disability”), appeals court affirms lower court’s refusal to appoint attorney ad litem for allegedly incompetent father who was represented by counsel in dependency case. S.K. v. Dept. of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007). The Florida Department of Children and Families petitioned to declare Child dependent. Mother consented to the dependency but Father, who was serving a life sentence for murder, did not. At the arraignment hearing, Father “exhibited bizarre thought patterns, prompting the court to appoint counsel for [Father]. Ultimately, the court ordered a competency examination for” Father. After the examination, Father’s counsel moved for a continuance of the final hearing because he believed Father was incompetent. Counsel also requested appointment of an attorney ad litem for Father. The trial court continued the hearing for 30 days, but declined to appoint an attorney ad litem. At the final hearing the court found Child dependent. Father appealed, arguing that he had been denied due process “by proceeding while he was incompetent to participate in his defense and by failing to appoint an attorney ad litem to represent him.” The Fourth DCA affirmed, stating that it did not understand Father’s request for appointment of an attorney ad litem. Father “already had counsel, and counsel was not prevented from advocating on his behalf.” After quoting Rule of Professional Conduct 4-1.14, the court stated that “unless the client is completely unable to express and act in his own interest, the attorney can continue to represent him. When the client cannot adequately act in his or her own interest, the lawyer seeks the appointment of a guardian, not an attorney ad litem.” The court commended the job performed by Father’s counsel and further noted: “As [Rule 4-1.14] suggests, appointment of a guardian for an incompetent person may be appropriate in some circumstances, even within a dependency proceeding. We need not address that issue, because no one requested the appointment of a guardian. Nor was the appointment of a guardian ad litem requested.
CANDOR TOWARD THE TRIBUNAL “High-low” agreement not prohibited as matter of public policy, and should not have been disclosed to jury. Gulf Industries, Inc. v. Nair, 953 So.2d 590 (Fla. 4th DCA 2007). Plaintiffs sued 2 defendants for injuries allegedly arising out of 3 auto accidents. Plaintiffs’ uninsured motorist carrier ("Travelers") admitted that uninsured drivers were responsible for the first 2 accidents. A business ("Gulf") admitted responsibility for causing the third accident, but contested that it was liable for the claimed damages. A jury verdict was returned for Plaintiffs in the amount of almost $7 million, apportioned between Travelers and Gulf. During the trial Gulf’s counsel asked the other parties whether there were any settlement agreements among them. Both Plaintiffs’ counsel and Travelers’ counsel disclosed the agreement and Gulf consequently moved for mistrial, in the alternative asking the trial court to disclose the agreement to the jury. The court denied the motion and refused disclosure. Gulf appealed. The trial court’s decision was affirmed. In Dosdourian v. Carsten, 624, So.2d 241 (Fla. 1993), the Florida Supreme Court ruled that “Mary Carter” agreements were void as against public policy. Noting that Dosdourian “did not specifically outlaw high-low agreements in addition to Mary Carter agreements,” the Fourth DCA concluded that a high-low agreement was not prohibited: “[T]he high-low agreement did not require Travelers to participate in the trial; Travelers could present a defense or withdraw and simply stand on the agreement. Furthermore, the $1,000,000 range between the high and low limits of the agreement suggests that Travelers had a genuine incentive to defend itself against fault resulting from the first and second accidents.” The court viewed the question of disclosure to the jury as “perhaps more contentious.” After surveying other court decisions, the court stated that the “lack of accord concerning publication of high-low agreements is perhaps due to the underlying and often conflicting policy considerations. On one hand, secret agreements between plaintiffs and one or more of several defendants can mislead the jury and may ‘border on collusion,’ thereby robbing the judicial system to some extent of its truth-seeking function. [Citations omitted.] Yet, while disclosure may avoid collusion between plaintiffs and settling defendants . . . it may also lead the jury to believe that those plaintiffs and settling defendants conspired to prevent a fair trial.” The appeals court concluded that “introduction of the agreement into evidence would have been unnecessarily prejudicial” and was not required.
CONFIDENTIALITY AND PRIVILEGES Florida Bar ethics committee approves advisory opinion addressing lawyer’s obligations after receiving documents that lawyer’s client had wrongfully obtained. Florida Ethics Opinion 07-1. See discussion in “Attorney-Client Relationship” section.
Litigation privilege applies in all causes of action, statutory as well as common law. Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007). The Florida Supreme Court exercised its conflict jurisdiction to resolve a conflict between 2 District Courts of Appeal concerning whether the litigation privilege applies to statutory causes of action as well as common law ones. Relying on Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994), the high Court concluded: “[W]e hold that the litigation privilege applies in all causes of action, whether for common-law torts or statutory violations.”
Husband’s statement to lawyer that he intended to kill Wife not privileged, because Husband did not make statement in context of seeking legal advice from lawyer. State v. Branham, 952 So.2d 618 (Fla. 2d DCA 2007). Husband and Wife were having marital problems. Lawyer represented Husband on some matters not related to the divorce. Lawyer knew both Husband and Wife, and told both of them that he could not represent either of them in their divorce. While talking with Lawyer during a “social visit” to Husband's house, Husband asked if Lawyer was his attorney. When Lawyer replied “sure,” Husband stated that he was going to kill Wife. Husband repeated the threat several times during the conversation. About a week later Husband allegedly killed Wife. Before Husband’s indictment, Lawyer was subpoenaed by the State. Lawyer raised the issue of attorney-client privilege, but the judge directed Lawyer to answer the State’s questions. After Husband was indicted, Husband raised attorney-client privilege to prevent Lawyer from testifying. The court ruled that the communications were privileged. The State appealed. The Second DCA reversed. “[T]he evidence before the trial court unequivocally established that in the conversation with [Lawyer] at the defendant’s home, the defendant never asked for any legal advice and [Lawyer] never gave any legal advice. The defendant did not ‘consult’ [Lawyer] ‘with the purpose of obtaining legal services,’ and [Lawyer] did not ‘render[ ] legal services’ to the defendant. . . . The defendant's statements to [Lawyer] that the defendant intended to kill his wife were not ‘made in [connection with] the rendition of legal services to’ the defendant. . . . In ruling that the statements made by the defendant to [Lawyer] were subject to the lawyer-client privilege, the trial court failed to apply the clear – and clearly applicable – provisions of [Fla.Stat.] sections 90.502(1)(b) and 90.502(2).” In the final analysis, the conversation “was totally unrelated to any lawyer-client relationship between [Lawyer] and the defendant.”
Transcript of insured’s examination under oath taken by insurer protected from third parties by attorney-client privilege. Reynolds v. State, 963 So.2d 908 (Fla. 2d DCA 2007). Insured faced criminal charges and potential civil liability arising from an incident. Insured’s policy arguably provided coverage for the civil damages. Pursuant to the policy, Insurer required Insured to submit to an examination under oath. The criminal prosecutor learned of the examination and sought production of the transcript for use in the criminal case. Insured resisted on grounds that included attorney-client privilege. The trial court ordered production. The Second DCA quashed the order. “In Vann [v. State, 85 So.2d 133 (Fla 1956)], the Florida Supreme Court recognized that a communication from the insured to the liability insurance company is privileged if the communication is intended for the purpose of assisting the insurance company’s attorney in defending the insured. 85 So. 2d at 138.” Because Insured gave the examination under oath “as required in a cooperative effort between the insured and the insurer,” the attorney-client privilege applied to protect the transcript from compelled disclosure to the criminal prosecutor.
In bad faith case brought by third party (not the insured), trial court erred in ruling as a matter of law that attorney-client privilege did not apply to communications made by insurer and insured with their counsel. Progressive Express Ins. Co. v. Scoma, ___ So.2d ___, 32 Fla.L.Weekly D1187 (Fla. 2d DCA, No. 2D06-2294, 5/4/2007), 2007 WL 1296007. Insured was sued by Plaintiff in a tort action. Insurer provided a defense. A judgment substantially above policy limits was entered against Insured, who then filed bankruptcy. Plaintiff, brought a bad faith suit against Insurer “as a third-party beneficiary to the insurance contract.” Plaintiff asserted that she stood in Insured’s shoes as a matter of law, although Insured had not assigned the bad faith claim to her. Lawyer, who represented Insured in the underlying tort case, represented Insurer in the bad faith action. Plaintiff sought discovery of all documents in Insurer's possession relating to the tort claim, arguing that "the attorney-client privilege did not apply to any confidential communications between [Insured], [Insurer], and their respective counsel in the underlying tort action" because she stood in Insured’s shoes in the bad faith case. Insurer objected on grounds of attorney-client privilege and work product. The trial court decided not to conduct an in camera inspection of the documents in question, instead ruling that "as a matter of law the attorney-client privilege did not apply to protect confidential communications made by [Insurer] and [Insured] with their counsel during the underlying tort suit from discovery by [Plaintiff] in her bad faith suit." Insurer then petitioned the Second DCA, seeking a writ of certiorari to quash the trial court's order. The appellate court quashed the order. The trial court departed from the essential requirements of law when it held that the attorney-client privilege did not apply. The opinion extensively discussed the nature of bad faith cases, both "first-party" and "third-party," and the attorney-client privilege issues that relate to these claims. (Because Insurer did not argue its work product claim in the certiorari proceeding, the appeals court did not address it.) Insurer was seeking to protect two categories of communications: its own confidential communications with its counsel regarding Plaintiff's tort suit; and Insured's confidential communications with the lawyer who represented him in the tort suit. The court summarized its holding: "We conclude that any communications between [Insurer] and its personal counsel are clearly protected by the attorney-client privilege. Moreover, we conclude that although [Plaintiff] may 'stand in the shoes' of [Insured] for the purposes of standing to bring a bad faith action, that position does not permit her access to otherwise privileged communications between [Insured] and his counsel in the wrongful death action, at least in the absence of a waiver of the privilege by [Insured] or his written assignment of the bad faith claim. A person does not waive or otherwise lose an attorney-client privilege merely because a third party is authorized to file a lawsuit against the person's insurance company." The court relied heavily on the attorney-client privilege statute, Fla.Stat. sec. 90.502, noting that earlier Florida cases in this area were decided prior to adoption of the statute.
Trial court must hold evidentiary hearing before compelling testimony on basis of crime-fraud exception to attorney-client privilege. BNP Paribas v. Wynne, 967 So.2d 1065 (Fla. 4th DCA 2007). Plaintiff sued Defendant and sought an ex parte writ of garnishment against Defendant’s accounts. Vice President of Plaintiff signed an affidavit in support of the garnishment motion. Later in the litigation Defendant sought to question Vice President regarding information claimed to be protected by the attorney-client privilege. Defendant moved to compel Vice President's testimony, urging that the crime-fraud exception to the privilege applied. The court did not take testimony at the hearing on the motion to compel, but ruled that the fraud exception applied and that Vice President could not invoke the privilege at his deposition. The Fourth DCA quashed the order. There must be “an adversarial proceeding that would allow both parties to present evidence and argument on the issue” of whether the crime-fraud exception applies. In the instant case, however, the trial court had not held an evidentiary hearing to determine the essential facts. Accordingly, the appeals court directed the trial court to conduct a hearing in compliance with the procedure set forth in American Tobacco Co. v. State, 697 So.2d 1249 (Fla. 4th DCA 1997).
Lawyer who breaches client confidentiality after attorney-client relationship has ended may be liable to client for malpractice, but client must allege what confidence was breached. Elkind v. Bennett, 958 So.2d 1008 (Fla. 4th DCA 2007). Lawyer represented Client, Client's business associate (“Associate”), and their business venture (“the Venture”) in a labor dispute brought by Employee. Following Lawyer’s investigation, the matter with Employee was settled. Subsequently Client sued Lawyer for legal malpractice. Client alleged that, 6 months after the Employee matter was concluded, Lawyer revealed to the Venture’s management confidential information about Client that Lawyer learned from the prior representation of him in the Employee matter and that the Venture then used that information to have Client fired. The trial court dismissed the complaint, ruling that Client had not stated a cause of action for legal malpractice because Lawyer disclosed the confidential information obtained from Client after his representation of Client, “and thus was not in privity with [Client] at the time of the disclosure. As privity is an essential element of a cause of action for legal malpractice, the trial court reasoned that the complaint should be dismissed for failure to allege privity.” Client appealed. The Fourth DCA reversed, stating that it was aware of no authority requiring that Lawyer must still be in privity with Client when he disclosed the confidential information. Citing Florida Rules of Professional Conduct 4-1.6 and 4-1.9(b), the court noted that a lawyer has a continuing duty not to disclose client confidences after a representation has terminated. The trial court had refused to rely on the Rules of Professional Conduct as establishing any legal duty on Lawyer's part, pointing to the portions of the Preamble that stated “[v]iolation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached” and that “nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty.” The appeals court rejected this reasoning, concluding that the confidentiality provisions of the Rules of Professional Conduct were based on lawyers’ fiduciary obligations that existed long before they were included in the ethics rules. “[W]e hold that a breach by an attorney of a duty of confidentiality to his or her client which causes damage to the client may be enforced by way of an action for legal malpractice.” The court remanded for further proceedings so Client could amend his complaint to “allege what confidence was breached and how its disclosure damaged” him.
Plaintiff permitted to depose defendants’ law firm in effort to prove that court has jurisdiction, despite attorney-client privilege and work product objections. Marbulk Shipping, Inc. v. Bhagat, 950 So.2d 380 (Fla. 3d DCA 2007). Plaintiff was injured on a foreign ship in Bahamian waters and filed a Jones Act claim in Florida state court. Defendants moved to dismiss on jurisdictional grounds. Plaintiff asserted that the transport arrangements were made by Defendants' Law Firm and thus related to jurisdiction. Plaintiff served a subpoena duces tecum on Law Firm. Defendants objected on attorney-client and work product privilege grounds. The court entered an order permitting Plaintiff to depose a representative of Law Firm “for the limited purpose of discovering the nature and scope of its involvement with [Defendants], including contracts relating to provisions of maintenance and cure of the plaintiff in the present case for jurisdictional purposes.” The Third DCA denied Defendants’ certiorari petition. “The trial court’s order does nothing more than allow for the taking of the deposition of the law firm on a narrow issue. As such, the trial court’s order does not depart from the essential requirements of law. [Citations omitted.]”
Discovery order requiring production of documents supporting specific allegations of plaintiff's complaint quashed due to work product privilege. Hargroves v. R.J. Reynolds Tobacco Co., ___ So.2d ___, 32 Fla.L.Weekly D2346 (Fla. 2d DCA, No. 2D07-204, 9/28/2007), 2007 WL 2808231. Plaintiff sued Defendant tobacco company. Defendant requested production of documents supporting specific allegations of the complaint. Plaintiff objected on work product grounds. After the trial court overruled that objection Plaintiff produced 4 DVDs containing thousands of documents, but did not specify which documents supported which of the complaint's allegations. The trial court then directed Plaintiff “to identify the documents responsive to each specific request in [Defendant’s] third request for production.” The Second DCA quashed the order based on Northup v. Acken, 856 So.2d 1267 (Fla. 2004). The trial court’s order departed from the essential requirements of law because it compelled Plaintiff to advise Defendant which of the already-produced documents were relevant to specific allegations in the complaint. Additionally, the court noted that the order was “overbroad because it is not limited to documents that [Plaintiff] has determined he will use at trial.”
Store’s documents relating to its “civil theft recovery program” involving suspected shoplifters are protect from discovery as work product. Publix Supermarkets, Inc. v. Johnson, 959 So.2d 1274 (Fla. 4th DCA 2007). Supermarket operates a “civil theft recovery program” for suspected shoplifters. If participants fail to complete the program, Supermarket may seek civil or criminal remedies through the courts. Shopper was stopped for suspected shoplifting. He declined to participate in the program. Shopper was acquitted of criminal charges and then sued Supermarket for false imprisonment and malicious prosecution. Shopper sought to discover correspondence from Supermarket’s lawyers to other suspected shoplifters related to the civil theft recovery program. The trial court denied Supermarket’s objections to production. Supermarket then petitioned for certiorari review, “claim[ing] entitlement to the work-product privilege and assert[ing] the privacy rights of the non-party shoplifters.” The appellate court quashed the trial court’s order denying protection to Supermarket. After pointing out that accident reports prepared in anticipation of litigation are not subject to discovery without a showing of undue hardship to obtain the substantial equivalent by other means, the court concluded that the documents at issue "surely were documents created in anticipation of litigation.” Because the documents were protected by the work-product privilege, Shopper was obligated to show that he had a need for such material and could not, without undue hardship, obtain the substantial equivalent of the materials by other means.
JCC erred by ordering worker’s compensation claimant to make non-testifying expert available for deposition over work product objections; no privilege log required. Nevin v. Palm Beach County School Board, 958 So.2d 1003 (Fla. 1st DCA 2007). Workers’ compensation Claimant hired Expert to inspect a building that allegedly caused her injuries. The Employer/Carrier repeatedly sought to depose Expert and to discover Expert’s notes and correspondence. Claimant objected, asserting work product objections and arguing “[w]ith the invariable persistence of a metronome” that Expert was a consulting expert hired in anticipation of litigation and would not be called to testify. The Judge of Compensation Claims (“JCC”) ordered Claimant to make Expert available for deposition. The First DCA quashed the order. “Where an expert has been specially employed in anticipation of litigation but is not expected to be called as a witness at trial, the facts known or opinions held by the expert are deemed to be work-product and may be discovered only ‘upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means’.” Expert was hired in anticipation of litigation and was not expected to be called as a witness at trial; thus, the information sought was work product. Employer/Carrier failed to demonstrate a need sufficient to overcome the work product protection. Additionally, the court rejected the argument that Claimant waived the work product protection by not filing a privilege log. “First, Petitioner is not asserting a document specific work-product privilege. Second, under the facts of this case, provision of a privilege log is a futile act.”
Fourth DCA relaxes stance on entertaining certiorari petitions seeking review of trial court orders denying discovery. Power Plant Entertainment, LLC v. Trump Hotels & Casino Resorts Development Co., 958 So.2d 565 (Fla. 4th DCA 2007) (en banc). The Fourth DCA relaxed its restrictive stance on entertaining certiorari petitions that seek review of orders denying discovery requests. A 3-judge panel had dismissed a petition seeking certiorari review of a trial court order upholding a party's exercise of attorney-client privilege in discovery, on the ground that “no irreparable harm is demonstrated where the court denies a motion to compel discovery, because there is an adequate remedy on final appeal.” The petitioners then filed a motion to certify conflict, “pointing out that other district courts of appeal have allowed review by certiorari of orders denying discovery and [the Fourth DCA] does not.” The court denied the motion to certify conflict but vacated the order of dismissal, to allow further proceedings before a panel of the court. After reviewing its historically restrictive position regarding certiorari petitions seeking review of orders denying discovery, the court, sitting en banc stated: “We have now concluded that we should take this opportunity to recede from the cases indicating we have a hard and fast rule against reviewing orders denying discovery, and join our sister courts which have occasionally, but not routinely, granted review.” The court cautioned that it would allow use of certiorari review sparingly: “[W]e remind counsel that few orders denying discovery will involve information so relevant and crucial to the position of the party seeking discovery, that it will amount to a departure from the essential requirements of law so as to warrant certiorari review. . . . [W]e do not expect to receive petitions from denials of fishing expeditions.”
CONFLICTS OF INTEREST (INCLUDING DISQUALIFICATION) Florida Supreme Court discusses conflicts of interest and imputation of conflicts in context of ineffective assistance of counsel claim. Connor v. State, ___ So.2d ___ (Fla., No. SC04-1283, 11/15/2007) (revised opinion). A convicted Defendant appealed the trial court’s denial of his motion for postconviction relief. Two of his claims related to alleged conflicts of interest. Conflict arising from filing of bar grievance. Attorney Jepeway was appointed to represent Defendant. Jepeway selected Attorney Zenobi as co-counsel. Defendant filed a bar grievance against Jepeway. The trial court considered the grievance meritless but removed Jepeway from the case due to the conflict between Defendant and Jepeway. Zenobi continued representing Defendant. On appeal Defendant argued that his conviction should be reversed because Jepeway represented him at a competency hearing while the grievance was pending. The Supreme Court rejected this contention. Defendant did not allege nor demonstrate how the alleged conflict affected counsel’s performance at the competency hearing. Imputed disqualification among co-counsel. Defendant argued that Jepeway’s conflict of interest was imputed to Zenobi because of the business relationship between the lawyers. They shared office space. The Supreme Court disagreed, explaining: “The Florida Rules of Professional Conduct provide: ‘While lawyers are associated in a firm, none of them shall knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so.’ R. Regulating Fla. Bar 4-1.10(a). The comment to the Preamble of the Florida Rules of Professional Conduct also notes: ‘Whether 2 or more lawyers constitute a firm . . . can depend on the specific facts. For example, 2 practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm.’ Without some further significant demonstration approaching the level of a partnership or professional association, shared office space and secretarial services will not permit imputation of conflict.” Defendant presented no evidence upon which the trial court could have presumed conflict.
Criminal defense counsel’s use of flat fee arrangement raises conflict questions. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). Lawyer represented Defendant, who was charged with and convicted of murder. Defendant moved for postconviction relief. Defendant alleged Lawyer’s performance was ineffective because it was adversely affected by actual conflicts of interest. One conflict related to Lawyer’s use of a flat fee arrangement. The Fifth DCA questioned the fee arrangement, but did not reverse on this ground. Lawyer charged Defendant a flat fee of $135,000, which included “any services of investigators, or experts employed by undersigned attorney.” In his postconviction motion Defendant alleged that Lawyer did not hire an expert witness because the cost would have come from Lawyer’s fee and that, consequently, Lawyer was burdened with an actual conflict of interest. Because the trial court’s finding that Lawyer’s financial conflict did not adversely affect his performance as defense counsel was supported by competent and substantial evidence, the Fifth DCA affirmed the trial court’s denial of this claim. In a footnote, however, the court expressly questioned the propriety of the type of fee arrangement employed by Lawyer, and invited both the Florida Bar and the Florida Supreme Court to look into this issue. The court noted the ethical obligation under Rule of Professional Conduct 4-1.7 to avoid representation situations that “would compromise the lawyer's independent professional judgment.” The court further stated that such fee arrangements “are so susceptible to claims of conflict and questions regarding the ethics of the attorney’s strategic decisions at odds with his or her own financial interests that an attorney should probably expect an ethics inquiry by the Florida Bar with respect to any case for which this type of fee arrangement is used. In fact, this type of fee arrangement is so obviously prone to allegations of ethical lapse that the supreme court may want to consider barring it altogether in criminal cases.”
Criminal defense counsel’s delay in turning murder weapon over to State created conflict resulting in reversal. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). Lawyer represented Defendant, who was charged with and convicted of murder. Defendant moved for postconviction relief. Defendant alleged Lawyer’s performance was ineffective because it was adversely affected by actual conflicts of interest. One conflict related to Lawyer’s handling of the murder weapon. The Fifth DCA reversed. At the outset Defendant had told Lawyer he was considering suicide, and Lawyer responded by telling Defendant “to ‘get rid of the gun’.” Defendant put the gun in a storm drain. Later the two discussed the fact that Lawyer would need to turn the gun over to the State. Defendant told Lawyer the gun’s location. Lawyer, however, delayed disclosure to the State for four months. At trial the State questioned Defendant about hiding the gun. Defendant tried to assert that his actions were based on advice of counsel. Lawyer objected. Lawyer could have testified to clear up the matter before the jury, but did not. The appeals court concluded that this conflict warranted postconviction relief and ordered a new trial. “[Lawyer] made himself a potential witness in the case through his advice and actions regarding the murder weapon. This potential conflict fully matured into an active conflict when the State began questioning [Defendant] regarding his concealment and delay in disclosing the murder weapon at trial. This active conflict adversely affected [Lawyer]’s performance when he prevented [Defendant] from fully explaining [Lawyer]’s advice and actions to the jury, in an attempt to protect his role as counsel by precluding inquiry into an area that would highlight his conflicting role as a witness.” Lawyer labored under an active conflict of interest that adversely affected his performance at trial.
Entering undisclosed retention agreement with clients’ adversary while still representing clients violates conflict of interest rules. Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007); Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). See discussion in “Disciplinary Proceedings” section.
Meaning of “substantially related matter” for purposes of disqualification motion filed by lawyer’s former client discussed by Fourth DCA in context of “playbook” situation. Health Care and Retirement Corp. of America, Inc. v. Bradley, 961 So.2d 1071 (Fla. 4th DCA 2007). Plaintiff sued Nursing Home over incidents occurring between January 2002 and September 2005 that allegedly led to a resident’s death due to Nursing Home’s alleged negligence. While employed with his prior law firm (“Old Firm”) Lawyer represented Nursing Home from February 2001 to December 2004 in defending nursing home litigation in cases involving similar allegations and the same facility. Lawyer left Old Firm and in January 2005 joined “New Firm,” the law firm representing Plaintiff in the suit against Nursing Home. At New Firm Lawyer became actively involved in litigating the suit against his former client. Nursing Home moved to disqualify Lawyer and New Firm. The trial court denied the motion, but the Fourth DCA quashed that order. The appellate court concluded that the disqualification issue should be analyzed using Rule of Professional Conduct 4-1.9 and the “irrefutable presumption” that confidences are disclosed between lawyer and client during the lawyer-client relationship. The court remanded for a determination whether the matters on which Lawyer previously represented Nursing Home were “substantially related” to the instant case. (See Health Care and Retirement Corp. of America, Inc. v. Bradley, 944 So.2d 508 (Fla. 4th DCA 2006) (on rehearing).) On remand, the trial court again denied the disqualification motion. The Fourth DCA upheld the denial, concluding that the prior matters handled by Lawyer were not “substantially related” to the present Plaintiff-Nursing Home suit. The fact that the prior matters involved “the same type of negligence” was not persuasive. The court focused on the Comment to Rule 4-1.9: “[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.” The court viewed the 2006 amendments to another portion of the Comment as “narrowly defin[ing] the concept of ‘substantially related’.” The amended Comment states, in part, that “[m]atters are 'substantially related' for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client.” The court concluded: “Here, [Lawyer] handled a ‘type of problem’ for [Nursing Home] – negligence cases involving patients who suffered from pressure ulcers or falls; the current case, filed after [Lawyer] left [Old Firm], is a ‘wholly distinct problem of that type.’ Rules Reg. Fla. Bar 4-1.9 cmt. (2006). Unlike two products liability cases involving the identical product, each negligence case turns on its own facts. . . . This lawsuit is not ‘substantially related’ to the earlier cases within the meaning of Rule 4-1.9(a).”
Trial court cannot rely only on unsworn argument as basis for disqualifying law firm; governing standard when lawyers move between private firms is Rule of Professional Conduct 4-1.10(b). Bon-Secours-Maria Manor Nursing Care Center, Inc. v. Seaman, 959 So.2d 774 (Fla. 2d DCA 2007). Santa Lucia was a partner in a law firm (“Old Firm”). Dinan, an associate in Old Firm, represented Plaintiff in a suit against Nursing Home. Old Firm dissolved and Santa Lucia joined New Firm. Dinan continued to represent Plaintiff. New Firm represented Nursing Home in Plaintiff's case. Plaintiff moved to disqualify Santa Lucia and New Firm. New Firm defended the motion by filing Santa Lucia’s sworn affidavit, asserting that he never represented nor met Plaintiff and that he had no “actual knowledge of any protected information material to this case.” Plaintiff presented no evidence at the hearing on the disqualification motion. The trial court disqualified Santa Lucia and New Firm. The Second DCA quashed the disqualification. Cases involving imputed disqualification of a law firm based on a prior representation by a newly associated attorney are governed by Rule of Professional Conduct 4–1.10(b). Under this rule disqualification is warranted only if the moving lawyer has actual knowledge of material, confidential information. The trial court was required to determine whether Santa Lucia had actual knowledge of client confidences that would be imputed to New Firm, but did not do so. Although the trial court held a hearing, it did not “give due consideration” to Santa Lucia's affidavit, the only evidence submitted at the hearing, but instead relied exclusively on Dinan’s “unsworn statements at the hearing and unwarranted assumptions stemming from Mr. Santa Lucia’s role as the ‘first named partner’ in his former law firm. . . . [T]he circuit court departed from the essential requirements of the law by relying on unsworn argument as its only factual basis for the entry of an order of disqualification.”
Defense counsel’s “nodding acquaintance” with key state witness was not conflict of interest requiring counsel’s withdrawal. Kormondy v. State, ___ So.2d ___, 32 Fla.L.Weekly S627 (Fla., Nos. SC05-1200, SC06-210, 10/11/2007), 2007 WL 2947870. A Defendant represented by the Public Defender’s Office was convicted of capital murder. He appealed his denial of postconviction relief to the Florida Supreme Court, contending that trial counsel rendered ineffective assistance by failing to withdraw from his case. Defendant alleged that counsel should have withdrawn “because her relationship with the victim . . . posed a conflict of interest that affected counsel’s representation.” At the evidentiary hearing on Defendant's postconviction motion trial counsel testified that during high school she had a “nodding acquaintance” with the victim but that she “ran with a different crowd.” The trial court concluded that defense counsel “did not have a close friendship with” the victim. The Supreme Court noted that there must be an actual conflict of interest before defense counsel’s representation is considered constitutionally deficient and rejected Defendant’s argument, concluding: “We agree with the trial court that counsel’s knowledge of the victim in this case does not support a finding that there was an actual conflict of interest. While counsel was a nodding acquaintance of the victim in high school, this does not demonstrate an actual conflict of interest.”
Per Florida Supreme Court, lawyer-as-witness rule (4-3.7) does not require withdrawal of lawyer who will testify for client at post-trial hearing. Willacy v. State, 967 So.2d 131 (Fla. 2007). A convicted Defendant who was sentenced to death argued on appeal that his trial counsel were ineffective because they had not requested appointment of independent counsel at the hearing on his motion for new trial. Defendant asserted that because trial counsel were necessary witnesses at the post-trial hearing, they were required by Rule of Professional Conduct 4-3.7 to seek the appointment of independent counsel. Defendant contended that their failure to do so created a conflict of interest. The Supreme Court disagreed. Trial counsel’s testimony “was brief and entirely favorable to” Defendant. The Court noted that Rule 4-3.7 “does not mandate the withdrawal of counsel who must testify in a post-trial hearing such as that conducted here.”
A judge in a domestic case did not err by appointing one party’s lawyer as special prosecutor to pursue indirect criminal contempt charges against the other party. Gordon v. State, 960 So.2d 31 (Fla. 4th DCA 2007); Gordon v. State, 967 So.2d 357 (Fla. 4th DCA 2007)) (opinion denying rehearing). Father was accused of violating a permanent domestic violence injunction relating to his contact with Mother, his ex-wife. Mother moved for an order to show cause why Father should not be held in indirect criminal contempt. The trial judge appointed Mother's lawyer as a prosecutor for the charge. Father was found in contempt and sentenced. Father appealed. The Fourth DCA reversed due to the failure to appoint counsel for Father at the contempt hearings. The court also addressed other claims raised by Father that might arise on remand. One of these issues was the trial court's appointment of Mother's lawyer as special prosecutor. After a lengthy discussion of Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) and other cases, the court concluded that Vuitton does not bar a party’s attorney from participating in a contempt hearing in the family law context. In its opinion denying rehearing, the court elaborated on the independent prosecutor issue. “There is a great difference between an ‘appointed’ prosecutor who develops facts to support a finding and one who misuses the appointment for injustice and oppression. . . . This case did not review a trial court’s refusal to remove an abusive and oppressive prosecutor; it addressed the question of whether appointment of a party’s attorney to organize and present evidence at a criminal contempt at a hearing was barred in all cases. Nothing in this opinion precludes or prejudges a motion in the circuit court to remove the appointed prosecutor in this case.”
DISCIPLINARY PROCEEDINGS Florida Bar prosecutors absolutely immune from civil liability for actions taken in connection with official duties, even if actions taken intentionally and maliciously. Spano v. Hoffman, 968 So.2d 674 (Fla. 4th DCA 2007). Plaintiff sued 2 Florida Bar employees, alleging defamation and tortious interference with business relationships. The court dismissed the complaint because “the alleged statements were absolutely privileged because they were made by Florida Bar employees in connection with their official duties during the course of Bar disciplinary proceedings.” The Fourth DCA affirmed. “An absolute privilege attaches regardless of whether such statements were made with malice, so long as the employees were acting within the scope of their duties.”
Florida Supreme Court orders respondent lawyer to pay Bar’s costs of seeking review of referee’s recommended discipline, even through lawyer did not seek review. Florida Bar v. Martinez-Genova, 959 So.2d 241 (Fla. 2007) (opinion on rehearing). A referee found Lawyer guilty and recommended a 3-year suspension. Lawyer did not seek Supreme Court review, but the Bar did. The Court agreed that Lawyer should be disbarred. The Bar then filed a petition for rehearing seeking to recover the costs it incurred in seeking review of the referee’s recommended discipline. By a 4-3 vote the Court granted rehearing and ordered Lawyer to pay the Bar’s additional costs of $4,000. The Court stated: "[W]e agree that the Bar’s appellate costs were reasonable and necessary to correct the referee’s erroneous recommendation of discipline for such serious misconduct. We further agree that these costs should be borne by the respondent as a matter of policy." (Emphasis supplied.)
“Failure to acknowledge wrongful nature of conduct” may be used as aggravating factor in disciplinary cases. Florida Bar v. Germain, 957 So.2d 613 (Fla. 2007). Lawyer was charged with violations relating to pursuing meritless claims and lying under oath. The referee found Lawyer guilty and recommended a 91-day suspension, to be followed by probation and an evaluation (and, if necessary, treatment) by a Bar-approved mental health professional. Lawyer petitioned for Supreme Court review. The Court approved the guilty findings, and increased the length of suspension to 1 year. Lawyer had challenged the referee's finding that his “refusal to acknowledge the wrongful nature of his conduct” was a aggravating factor. Lawyer argued that this punished him for continuing to assert his innocence in the disciplinary proceedings. The Court disagreed, discussing its case law on the subject and noting that Lawyer had stipulated to most of the facts and did not dispute that he engaged in the conduct. Rather, Lawyer continued to contend that his actions "did not constitute unethical conduct. These are legal issues." The Court concluded that, "[w]here the issue rests on a legal question, the aggravating factor of failing to acknowledge the wrongfulness of the conduct clearly applies."
Florida Supreme Court approves referee's rejection of drug addiction as “physical or mental disability” mitigating factor. Florida Bar v. Bloom, ___ So.2d ___, 32 Fla.L.Weekly S806 (Fla., No. SC06-1025, 12/13/2007), 2007 WL 4335463. Lawyer was charged with ethical violations. The referee recommended that Lawyer be found guilty and disbarred. Lawyer contended that his drug addiction should be recognized as a physical or mental disability and treated as a mitigating factor, but the referee refused to find his drug addiction as a mitigating factor. The Florida Supreme Court agreed. Whether addiction is a mitigating factor must be determined on a case-by-case basis. “The referee’s rejection of the mitigating factor of disability or impairment is also supported [by the record]. The referee specifically found [Lawyer]’s addiction arose from a lifestyle choice and was of long duration. Although [Lawyer] completed rehabilitation programs and broke free of the immediate grip of the addiction several times, his recovery was always short-lived. Further, there was evidence that [Lawyer] used rehabilitation programs and promises to rehabilitate himself merely to avoid the negative consequences of his conduct. Most importantly, [Lawyer] practiced law and represented clients throughout this period of drug abuse.” The Court contrasted this case with Florida Bar v. Rosen, 495 So.2d 180, 181 (Fla. 1986). “In Rosen, we recognized that 'loss of control due to addiction may properly be considered as a mitigating circumstance in order to reach a just conclusion as to the discipline to be properly imposed.' However, whether an addiction is a mitigating factor is based upon the circumstances of the individual case, as indicated by our use of the word 'may' instead of 'should' or 'must'.”
Lawyer suspended for not disclosing to opposing counsel settlement agreement procured by lawyer’s client and purportedly signed by opposing counsel’s client. Florida Bar v. Nicnick, 963 So.2d 219 (Fla. 2007). Lawyer represented Mother in a child support arrearage dispute with Mother-in-law (to whom Father had allegedly fraudulently transferred assets). Mother-in-law was represented for a period of time during the dispute; Lawyer knew this. Mother was approached by Mother-in-law's "personal assistant," who indicated that Mother-in-law wanted to settle. At Mother's request, Lawyer drafted an outline of a settlement agreement for his client, Mother. Although Lawyer did not expect it, Mother-in-law's personal assistant delivered an executed settlement agreement to Lawyer. Lawyer had reason to believe that Mother-in-law's signature might not be authentic. Lawyer did not inform opposing counsel about the signed settlement agreement "because he did not want him involved." Mother-in-law ceased being represented prior to a hearing. At the hearing Lawyer apparently produced the settlement agreement and "informed the court that the settlement agreement appeared to be signed by the mother-in-law, but he had no independent confirmation of that fact." Although Mother-in-law denied signing it, the court entered judgment for Mother. The Bar brought charged Lawyer with ethics violations. The referee concluded that once Lawyer gave the settlement agreement to his client with the understanding that it would be delivered to Mother-in-law, “he had an obligation to share the document with opposing counsel.” By not sharing the settlement agreement with opposing counsel before presenting it to Mother-in-law, the referee concluded that Lawyer violated Rules of Professional Conduct 4-3.4(a) and 4-8.4(c). (For unspecified reasons, the Bar did not charge Lawyer with violating Rule 4-4.2, concerning communications with a person represented by counsel.) The referee recommended a 91-day suspension plus some ethics education. The Supreme Court approved the findings and recommended discipline. As to the violation of Rule 4-3.4(a) (unlawfully obstructing another party's access to evidence or otherwise unlawfully altering, destroying, or concealing material that the lawyer knows or reasonably should know is relevant to a proceeding), the Court stated: "[Lawyer] asserts that it was within ethical boundaries to conceal a potentially forged settlement agreement until he felt the time was right for it to be revealed. . . . [T]his is not a decision that [Lawyer] was entitled to make. Whether opposing counsel or the mother-in-law knew that the settlement agreement existed or even had a copy of such is irrelevant in this case." Concerning the violation of Rule 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), the Court stated: "It is difficult to understand why [Lawyer] believes that his failure to share the purported settlement agreement with opposing counsel does not constitute a deceitful act. By its very nature, the act of omission demonstrated in concealing a relevant document is deceptive. . . . By concealing the settlement agreement, [Lawyer] was effectively representing to opposing counsel that there was no settlement agreement and that issues remain in the case."
Florida Supreme Court rejects referee’s recommendation and imposes reprimand rather than diversion in case involving lawyer’s “sharp practice.” Florida Bar v. Cocalis, 959 So.2d 163 (Fla. 2007). The Bar charged Lawyer with ethical violations arising from the trial of a dog bite case in which represented the defendant. Shortly before trial plaintiffs' counsel informed Lawyer that a certain treating physician would "testify unequivocally" regarding causation of the injury. This physician was not listed on the witness list as an expert on causation. Without notifying plaintiffs or their counsel, Lawyer allegedly telephoned this treating physician and asked whether he intended to testify regarding causation. Plaintiffs moved for sanctions and to strike the defense's pleadings. The trial court denied the motion. Lawyer had deposed a second treating physician, whose records were attached to his deposition. Plaintiffs' counsel did not stipulate before trial to the records' authenticity. Lawyer sent a trial subpoena to this doctor's records custodian, who mistakenly mailed the records directly to Lawyer. Lawyer did not tell plaintiffs' counsel that the records were sent to him, nor did Lawyer disclose that these records contained a new notation harmful to plaintiffs' case. At trial Lawyer called the records custodian and plaintiffs' counsel stipulated to admission of the records without reviewing them; thus, plaintiffs' counsel was unaware of the potentially damaging notation. When plaintiffs' counsel learned of the notation, he moved for sanctions, to strike the pleadings, and to have the notation removed. The motions were denied. Lawyer emphasized the notation to the jury. A verdict favorable to the defense was reversed on appeal due to the admission of the notation. In the disciplinary case the referee found Lawyer not guilty of most of the charged violations. The referee "stopped short of deciding whether" Lawyer was guilty of the remaining charged violation of Rule 3-4.3, R.Reg.Fla.Bar, but did recommend that Lawyer be referred to the diversionary practice and professionalism program. The Bar petitioned for Supreme Court review. The Supreme Court concluded that Lawyer violated Rule 3-4.3. The Court also rejected the recommendation of diversion, concluding that Lawyer's "misconduct was more than 'minor,' making true diversion inappropriate." The Court described Lawyer’s call to the first treating physician as “unprofessional and unethical,” but was more troubled by Lawyer’s “‘sharp practice’ in failing to advise opposing counsel that he had inadvertently received the patient’s medical records from one of the treating physicians prior to trial, that those records contained notes of a telephone conversation between the physician and plaintiffs’ counsel that was damaging to plaintiffs’ case, and that the records he was asking the trial court to admit into evidence were not the same records as those attached to the treating physician’s deposition. Under these circumstances, [Lawyer]'s conduct offends our well-recognized policy that cases should be decided on the merits and not by a lawyer’s stooping to sneaky or underhanded trial tactics.” Regarding the appropriate discipline, the Court stated: "In our estimation, this is not the kind of minor misconduct sufficiently addressed by diversion. On the other hand—and although it is a close call—we do not believe that the two actions at issue, which occurred about six years ago, warrant a thirty-day suspension, as the Bar urges." The Court imposed a reprimand.
Stiff discipline – including substantial fee forfeiture – imposed on 2 lawyers who entered undisclosed “engagement agreement” with clients’ adversary; lawyers violated conflict rules and rule against entering agreements that restrict lawyers’ right to practice. Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007); Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). Law Firm represented a number of clients in hotly contested litigation against DuPont, manufacturer of the Benlate fungicide that allegedly damaged the clients' crops. Law Firm uncovered evidence that could have been extremely damaging to DuPont, and moved to strike DuPont's pleadings in one of the cases. The trial judge orally ruled that she would strike the pleadings. Because of the effect such an order could have in many other similar cases, DuPont hoped to settle before the judge issued her written order striking the pleadings. While negotiating under severe time constraints, it became apparent that DuPont did not want Law Firm bringing similar claims against it in the future. Law Firm and DuPont entered into an "engagement agreement" under which Law Firm “accepted DuPont's offer to be retained for $6,445,000 and to perform unspecified work concerning Benlate matters.” Law Firm’s work for DuPont was to commence “upon completion of all activities on behalf of our existing Benlate clients.” Law Firm then received the payment from DuPont. Only one of the Law Firm's clients was informed about this engagement agreement. The Florida Bar investigated the activities of Law Firm and its 4 partners. Two of the partners had limited involvement concerning the engagement agreement; one was reprimanded and the other suspended for 90 days. The other 2 partners received stiffer discipline based on the Supreme Court's assessment of their culpability. In each of these 2 cases the Court rejected the discipline recommended by the referee and imposed stricter discipline. Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007). The Court characterized Rodriguez and St. Louis (see below) as “the firm's principal actors in developing and executing the secret engagement agreement.” Rodriguez's participation in negotiating the agreement was a conflict of interest due to his simultaneous allegiance to both DuPont and his Benlate clients. The referee recommended that Rodriguez be found guilty of violating rules concerning conflicts of interest, prohibited fees, and improper restrictions on a lawyer’s right to practice law. The referee recommended a public reprimand, 4 years of probation, and payment of the Bar's costs. The Supreme Court instead imposed a 2-year suspension. Rodriguez violated the conflict rules when he “became an agent for DuPont while still representing his Benlate clients against DuPont.” Regarding the violation of Rule 4-5.6(b) (generally prohibiting restrictions on right to practice), the Court cited out-of-state cases and stated: "Attorneys who engage in such engagement agreements receive severe sanctions, even when the misconduct is far less egregious than that in the instant case.” The Court suspended Rodriguez for 2 years and ordered him to forfeit his fee, including taxes and interest (an amount in excess of $1,440,000), to the Client Security Fund. Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). The Supreme Court viewed St. Louis's conduct as the "most egregious" of the Law Firm partners. In addition to the misconduct alleged in the Rodriguez case, the referee found that St. Louis lied to a circuit judge about the engagement agreement and that he made misrepresentations by omission in connection with the Bar's previous investigation into the Law Firm's representation of the Benlate clients (which culminated in a consent judgment). Rejecting the referee's recommended of a 2-year suspension, the Court imposed disbarment and fee forfeiture, ordering St. Louis to disgorge $2,277,663, plus interest accruing from August 12, 1996, to the Bar's Client Security Fund. The Court rejected the recommendation that the total amount of restitution be reduced by the amount that St. Louis paid in income taxes. Instead, the Court stated that "St. Louis can seek a refund of those taxes from the Internal Revenue Service." The Court rejected the contention that Rule 4-5.6(b) (restrictions on right to practice) was unconstitutional.
Rejecting referee’s recommendation, Florida Supreme Court suspends rather than disbars lawyer convicted of felonies. Florida Bar v. Del Pino, 955 So.2d 556 (Fla. 2007). Lawyer pleaded guilty to and was convicted of two federal felonies, tax evasion and mail fraud. The Florida Bar brought disciplinary charges. Lawyer was found guilty and the referee recommended disbarment. Lawyer sought review by the Florida Supreme Court, challenging the disbarment recommendation and the finding of dishonest or selfish motive. The Court concluded that the finding that Lawyer had a selfish motive for participating in the fraudulent transfer of a condominium was supported by the evidence, but accorded this factor less weight than did the referee: "[B]ecause of the unique circumstances of this case, most particularly the compelling evidence of the emotionally and physically abusive relationship between [Lawyer] and her husband, we are convinced this aggravating factor is not entitled to the substantial weight it might command under other circumstances not present here." The Court, however, did accord substantial weight to the aggravating factor of dishonest or selfish motive relating to Lawyer's filing of a false application for extension of time to file tax returns. "As guardians of the law, lawyers have a special obligation to honor the law themselves, including the tax laws." As to discipline, the Court recognized that disbarment is the "presumptively correct discipline" for a lawyer convicted of a felony. Relying on two of its prior cases imposing suspension rather than disbarment, however, the Court determined that the mitigating evidence in Lawyer's case was sufficient to warrant a 3-year suspension rather than disbarment. The Court detailed its view of the mitigation evidence: "The record reflects without dispute that by all accounts, [Lawyer] was competent, professional, and organized before she began dating her husband, who became a dominant and negative influence in her life. In the months prior to her marriage she began to deteriorate emotionally and the deterioration continued after her marriage. [Lawyer]’s work suffered, and she stopped communicating with her friends and began taking the prescription drug Xanax, on which she became dependent. [], her husband, called her many times a day to check up on her, making it difficult for her to complete her work in a timely manner. She stopped driving her own vehicle to work and stopped carrying a cell phone. According to one witness she was always 'devastated, crying.' Another witness testified that she went from a person who was very organized in every aspect of her life to someone without any control. She and her husband separated at least six times within the first few years of their marriage. [Lawyer] was diagnosed with anxiety disorder, dependent disorder, and other illnesses, including chronic fatigue syndrome. Although she continued to perform her attorney tasks, she let her personal matters slide. She was eventually forced to cut back to only part-time work for her firm and, then, to quit altogether. She testified that she did not state [falsely in her application for an extension of time to file] that her tax liability was $0 so that she would have extra money in her pockets, but only so she would not have to go through what to her had become a major emotional burden because of her anxiety and depression." The Court concluded: "Without minimizing the seriousness of [Lawyer]’s misconduct, we take into account the facts that she did not misuse or misappropriate client funds and she became dependent on prescription drugs as a result of illnesses, depression, and attempts to escape an abysmal personal life (as opposed to recreational drug use). Weighing all of these factors, along with a consideration of our case law, we conclude a three-year suspension is appropriate."
Lawyer suspended for 90 days, rather than 2 years as recommended by referee, for violating competence and conflict rules in handling real property transfer and related probate matter. Florida Bar v. Maurice, 955 So.2d 535 (Fla. 2007). Lawyer prepared a quitclaim deed for Client, transferring ownership to Client's Son and Grandson. Client retained a life estate. Several months later Lawyer prepared a new will for Client. This will purported to bequeath the property to Son and Grandson, and to Grandson's Mother, as well as giving Client's Neighbor/Caretaker a right of first refusal to buy the property. Client died 2 years later without revoking the quitclaim deed. After Client's death Lawyer was hired by Client's heirs to probate the estate. She opened formal estate proceedings "[w]ithout advising the heirs of the quitclaim deed making [Son] and [Grandson] the full owners of the condominium upon [Client]'s death or that no estate was necessary." The Bar charged Lawyer with ethical violations. The referee found her guilty of violating rules concerning competence ( 4-1.1) and conflicts of interest (4-1.7), and recommended a 2-year suspension and additional conditions (e.g., completing certain CLE programs). Lawyer challenged several of the factual findings and conclusions of guilt, as well as the recommended 2-year suspension. The Florida Supreme Court approved the guilty findings but concluded that the recommended 2-year suspension was not supported by caselaw or the Florida Standards for Imposing Lawyer Sanctions. The Standards supported a suspension for the misconduct, but “[a]s the standards do not suggest the appropriate length of a suspension, the Court examines caselaw to determine whether the referee’s recommendation of a two-year suspension has a reasonable basis.” The Court was of the view that applicable cases “support suspension as the appropriate sanction, but also demonstrate that a two-year suspension is too harsh.” The Court suspended Lawyer for 90 days (along with the other conditions recommended by the referee).
Despite mental health mitigation and referee’s recommendation of suspension, Florida Supreme Court disbars lawyer charged with misappropriating client funds. Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007). Lawyer was charged with misappropriating client funds. Lawyer introduced evidence of severe depression. The referee found Lawyer guilty, found 2 aggravating circumstances and 10 mitigating circumstances (including mental impairment), and recommended a 3-years suspension followed by a 5-year probation. The Florida Supreme Court rejected the recommendation and instead disbarred Lawyer. The Court pointed out that "when a lawyer intentionally takes funds held in trust for the lawyer's own use" such conduct "necessarily must result in the severest of sanctions." Disbarment is presumed to be the appropriate sanction under both the Florida Standards for Imposing Lawyer Sanctions and existing caselaw. Although in some misappropriation cases the Court has approved a suspension rather than disbarment, the Court noted that such cases “were based either upon less culpability in the taking of the funds or substantially more mitigation.” Lawyer's evidence of mitigation was not sufficient to overcome the presumption of disbarment.
For the first time, the Florida Supreme Court uses conditional admission to readmit lawyer who resigned for disciplinary reasons. Florida Board of Bar Examiners re: Mark Stephen Barnett, 959 So.2d 234 (Fla. 2007). Barnett resigned from the Florida Bar in lieu of disciplinary proceedings in 1997. In 2004 he applied for readmission. The Board of Bar Examiners filed specifications "detailing incidents in his past that reflected negatively on his character and fitness to practice law" that included alleged misappropriation of clients fund while still in practice, criminal charges, failing to file numerous federal tax returns, and failure to honor financial obligations. At the hearing Barnett testified about his history of substance abuse and recovery. The Bar Examiners concluded that he had established rehabilitation and recommended that he be conditionally readmitted, with a probationary period "because of the additional stress Barnett is likely to face upon his return to the practice of law." Calling "[d]isciplinary resignation is tantamount to disbarment," the Florida Supreme Court noted that Barnett had the burden of presenting clear and convincing evidence of rehabilitation. The Court concluded that Barnett had met this burden and readmitted him on a conditional basis for 3 years, including probationary conditions such as abstention from alcohol and controlled substances. Three justices dissented, asserting that conditional admission should be reserved for first-time applicants.
Florida Supreme Court disbars lawyer who practiced while suspended. Florida Bar v. Walkden, 950 So.2d 407 (Fla. 2007).
FEES (INCLUDING ATTORNEYS’ LIENS) Florida Supreme Court rules that clause in lawyer-client fee contract cannot waive homestead protection that applied to client's property. Chames v. DeMayo, ___ So.2d ___, 32 Fla.L.Weekly S820 (Fla., Nos. SC06-1671, SC06-2187, 12/20/2007), 2007 WL 4440212. A Lawyer-Client fee agreement stated that Client "hereby knowingly, voluntarily and intelligently waives his rights to assert his homestead exemption in the event a charging lien is obtained to secure the balance of attorney’s fees and costs." Lawyer later withdrew from the case and obtained a charging lien and judgment against Client. The court applied the lien to Client's homestead property. Client appealed, contending that his waiver of the homestead exemption in the retainer agreement was invalid, and could not support a lien on homestead property. The Third DCA reversed, concluding in a plurality opinion that the trial court erred by granting a charging lien on the property in question and reversed. DeMayo v. Chames, 934 So.2d 548 (Fla. 3d DCA 2006). Two judges concurred in an opinion certifying as a question of great public importance the issue of whether the holding in prior Supreme Court cases upon which the Third DCA relied should be overruled by the Florida Supreme Court "in light of of subsequent precedent in Florida and other jurisdictions, and the textual changes made by the people of the State of Florida in Article X, Section 4 of the Florida Constitution in the general election of November 1984." DeMayo, 934 So.2d at 555. The Florida Supreme Court approved the Third DCA's decision. "We continue to hold that a waiver of the homestead exemption in an unsecured agreement is unenforceable." The Court traced its precedent, including Carter's Adm'rs v. Carter, 20 Fla. 558 (1884) and Sherbill v. Miller. Mfg. Co., 89 So.2d 23 (Fla. 1956). Lawyer had proposed 3 grounds that, in her view, supported receding from that precedent: "[1] the 1984 amendment to article X, section 4, which substituted "a natural person" for "the head of family," changed the purpose of the homestead exemption from one protecting the family home into a personal right that may be waived; [2] most states now permit waivers; and [3] permitting waiver is consistent with other cases holding that various constitutional rights may be waived." The Court discussed and rejected each argument, and reaffirmed its holdings in Carter and Sherbill.
Criminal defense counsel’s use of flat fee arrangement raises conflict questions. Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007). See discussion in “Conflicts of Interest” section.
Florida Supreme Court rejects request to adopt rule of procedure eliminating need for expert witness testimony at attorney's fee hearings. In re: Amendments to Florida Rules of Civil Procedure, 966 So.2d 943 (Fla. 2007). The Florida Bar’s Civil Procedure Rules Committee proposed amendments to the Florida Rules of Civil Procedure. The Florida Supreme Court approved all of the proposals except one. Proposed new rule 1.526 would have provided that “[e]xpert opinion is not required to support or oppose a claim or an award of costs, attorneys’ fees, or both, unless by prior order of the court.” In declining to adopt the proposed rule, the Court stated: “We conclude that the issue of whether expert opinion testimony is required in this context is not one that is appropriately addressed in a rule of procedure. Thus, while we express no opinion on the substance of the committee’s proposal, we decline to adopt it as a rule of civil procedure.”
Judgment awarding fees to lawyer reversed because there was no evidence lawyer had actual or apparent authority to represent purported corporate client. Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007). See discussion in “Attorney-Client Relationship” section.
Court erred in awarding contingent fee to lawyer discharged by client before contingency occurred. Fields v. Klein, 946 So.2d 119 (Fla. 4th DCA 2007). Client employed Lawyer to represent him in a personal injury case on a contingent fee basis. Lawyer submitted a $100,000 demand to the opposing party's insurance carrier in May 2003. Client discharged Lawyer one week later. At the time of discharge the insurance adjuster had orally offered a settlement of $50,000. Client hired successor counsel, who settled the claim for $110,000 in December 2003. Lawyer asserted a charging lien. The trial court entered an order awarding Lawyer her full contingent fee. Client appealed The Fourth DCA reversed, concluding that the contingency had not been realized prior to Lawyer’s discharge. “Consequently, under both case law and the parties’ contract, [Lawyer] is entitled to recover, if at all, only the reasonable value of her services.”
Division of contingent fee between co-counsel in different firms governed by fee agreement, not quantum meruit, even though one co-counsel discharged before contingency occurred. Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007). Two lawyers (Jay and Trazeneld) in different law firms were hired as co-counsel under a written contingent fee agreement wherein each lawyer appeared to be equally responsible to the client for the representation. Jay had been hired first by the client to collect a judgment obtained for the client by a prior law firm. When Jay then discovered legal malpractice by the prior firm he brought in Trazenfeld to assist with the malpractice claim. After Trazenfeld subsequently advanced a claim that Jay had also committed malpractice, the client discharged Jay. Ultimately there was a recovery. Jay filed a charging lien claiming 25% of the fee based on his alleged oral agreement with Trazenfeld. Trazenfeld asserted that he was entitled to the entire fee. The trial court dissolved Jay's charging lien, and Jay appealed. The Fourth DCA reversed and remanded for enforcement of Jay’s charging lien. After noting that Jay’s discharge appeared to be without cause (see Kates v. Robinson, 786 So.2d 61 (Fla. 4th DCA 2001)), the court concluded that the division of the fee was governed by the written fee contract, which “clearly provides for joint sharing between Trazenfeld and Jay without specifying that the share of each is anything other than an equal share.” Thus, the court concluded that under the agreement Jay should be entitled to 50% of the contingent fee. Jay, however, in “a striking illustration of ethical punctilio despite financial disadvantage,” had sought only 25% of the fee as a secondary attorney under Rule of Professional Conduct 4-1.5(f)(4)(D). Jay’s charging lien was effective against Trazenfeld. The court rejected Trazenfeld’s argument that Jay’s only claim, if any, should be in quantum meruit (see Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982)). Rosenberg dealt with fees due from a client and fixes the client's obligation to a lawyer discharged without cause prior to the occurrence of the contingency. In the instant case involving a dispute between co-counsel over how to divide a fee that already had been paid by the client, the court viewed quantum meruit rule of Rosenberg as inapplicable. “As we have noted, the written fee agreement provides that co-counsel are jointly owed the fee. And because the contract did not specify otherwise, the division of the fee would ordinarily be equal—thus undifferentiated and fixed.”
Error to award legal fees and expert witness fees incurred by lawyer in perfecting and enforcing charging lien. Rudd v. Rudd, 960 So.2d 885 (Fla. 4th DCA 2007). Lawyer represented Husband in a dissolution of marriage case. Lawyer withdrew and filed a notice of charging lien for unpaid fees. The trial court entered an order for Lawyer that included not only the unpaid fees but also "$975.00 in legal fees as well as another $1,125.00 in expert witness fees incurred in perfecting and enforcing the lien." Relying on Cole v. Kehoe, 710 So.2d 705 (Fla. 4th DCA 1998), the Fourth DCA reversed, concluding that the trial court erred in awarding fees associated with Lawyer's perfection and enforcement of his charging lien.
Lawyer who withdrew from contingent fee case for health reasons may not have forfeited right to fee. Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007). Lawyer agreed to represent plaintiff Client under a “hybrid contingency” fee ($100.00 per hour plus 30% of any recovery). Shortly before the case was to be tried Lawyer withdrew from the case “for medical reasons.” Client hired another attorney, who allegedly performed substantial work on the case. Client and new counsel settled the case. Lawyer moved for attorney's fees, asserting that he was owed hourly fees plus 30% of the settlement as a contingent fee. The court rendered summary judgment for Client, determining that Lawyer's withdrawal was voluntary and that, consequently, he was not entitled to the additional fees “under the authority of Faro v. Romani, 641 So.2d 69, 71 (Fla. 1994).” Lawyer appealed. The Fourth DCA reversed and remanded. The trial court erred in disposing of the matter on summary judgment because there were genuine issues of material fact. On remand, the court was directed to conduct an evidentiary hearing to determine if Lawyer’s withdrawal was required by Rule of Professional Conduct 4-1.16(a)(2) (lawyer shall not represent client, or shall withdraw if representation has already begun, if “lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client”). If Lawyer’s withdrawal was voluntary, he would not be entitled to additional fees. But if Lawyer's withdrawal was involuntary, he could be entitiled to additional fees on a quantum meruit basis. The appeals court, however, imposed a limit on the amount of any additional fees for Lawyer: "In assessing any additional attorney’s fees, the trial court should take into account the amount of attorney’s fees paid to [Client]’s new attorney and in no instance shall [Client] be responsible for fees, which, in total, exceed his original fee agreement with [Lawyer]." NOTE: The decision did not discuss two points of interest. First, the Faro court indicated that the exception to the rule that a withdrawing lawyer forfeits the right to a continent fee applies when the lawyer was forced to withdraw as a result of the client's conduct. “We hold that when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation. . . . We further hold, however, that if the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs.” Faro v. Romani, 641 So.2d 69, 71 (Fla. 1994). Second, Florida courts have held that a quantum meruit fee paid to a lawyer discharged without cause in a contingent fee case is to be paid from the client's share of the recovery. See, e.g., Jones & Granger v. Johnson, 788 So.2d 381 (Fla. 1st DCA 2001); Doremus v. Florida Energy Systems of South Florida, Inc., 676 So.2d 444 (4th DCA 1996); Stabinski, Funt & De Oliveira, P.A. v. Alvarez, 490 So.2d 159 (Fla. 3d DCA 1986); Adams v. Fisher, 390 So.2d 1248 (Fla. 1st DCA 1980).
$100,000 statutory cap on damages against state agencies in tort actions includes amounts awarded for attorney’s fees. Zamora v. Florida Atlantic University Board of Trustees, 969 So.2d 1108 (Fla. 4th DCA 2007). Plaintiff sued his employer (University) for two claims, age discrimination and retaliation. The jury found for Plaintiff on both claims. Compensatory damages were awarded along with attorney's fees. University moved to limit the damages “to the sovereign immunity cap of $100,000.” The motion was granted. The appeals court affirmed. Fla.Stat. sec. 768.28(5) limits recovery to $100,000 per person for each claim in a tort action against a state agency. The Fourth DCA adopted the reasoning in Gallagher v. Manatee County, 927 So.2d 914 (Fla. 2d DCA 2006), which concluded that the statutory cap is for total recovery, “including attorney’s fees, costs and post-judgment interest.” While expressing sympathy with Plaintiff's argument that such an interpretation could keep injured persons from being made whole, the court stated that “[t]hese are arguments which should be addressed to the legislature.”
Insurer’s workers’ compensation lien does not attach to fees paid to lawyer who prosecuted claimant’s suit against third party tortfeasor. Luscomb v. Liberty Mutual Ins. Co., 967 So.2d 379 (Fla. 3d DCA 2007). After Claimant was seriously injured on the job, Insurer paid workers' compensation benefits. Claimant later sued a third party tortfeasor. This suit was subject to Insurer's subrogation and lien rights (see Fla.Stat. sec. 440.39). Claimant settled the suit for $215,000, which was far less than the amount that had been expended by Insurer (over $1,000,000). Claimant paid his lawyers $86,000 in fees. Insurer sought a lien against the net recovery received by Claimant as well as approximately $50,000 of the fees paid by Claimant to his lawyers. The trial court agreed that the attorney's fees were subject to the lien. The Third DCA reversed, concluding that a workers’ compensation lien recovery could not exceed the claimant’s net recovery. “Section 440.39(3)(a) does not penalize an injured worker’s counsel – who, after all, produced a subrogation recovery for the insurer – for successfully prosecuting the worker’s claim against a third-party tortfeasor.”
In dispute between 2 law partners that involved the “functional equivalent” of an action for an accounting, trial court did not err in awarding attorney’s fees. Larmoyeux v. Montgomery, 963 So.2d 813 (Fla. 4th DCA 2007). Lawyers Montgomery (99%) and Larmoyeux (1%) practiced in a partnership. Larmoyeux decided to leave the firm. Disputes arose over Larmoyeux's claim to a continuing portion of sizable attorney's fees from the state's case against tobacco companies and Montgomery's claim to a portion of the fees generated by cases Larmoyeux took with him when he left the firm. Larmoyeux also sought damages for Montgomery's alleged breach of fiduciary duty, conversion, and failure to allow Larmoyeux access to the firm's books and records. Arbitration and litigation proceedings resulted in an award of attorney's fees to Montgomery. Larmoyeux argued unsuccessfully that there was no statutory or equitable basis for a fee award. He asserted that no equitable claim for fees was cognizable under A.J. Richey Corp. v. Garvey, 182 So. 216 (Fla. 1938), because neither party sought dissolution of the partnership or an accounting. The trial court disagreed and ruled that Montgomery was entitled to fees under A.J. Richey. The court found that the proceedings were the “functional equivalent” of an action for accounting. Larmoyeux appealed, contending that A.J. Richey had been overruled by Florida's adoption of the Revised Uniform Partnership Act. The appeals court disagreed and affirmed. A legislative intent to abolish or limit the common law must clearly indicate such a change, or else the rule of the common law will stand.
Computerized legal research expenses not taxable “costs” to prevailing party. Wood v. Panton & Co. Realty, Inc., 950 So.2d 534 (Fla. 4th DCA 2007). After prevailing on summary judgment in a suit for a real estate commission, Plaintiff moved for attorney's fees and costs under a contractual provision that allowed Plaintiff, as the prevailing party, to “recover all costs incurred including attorney's fees and legal assistant fees.” The trial court awarded costs that included $316.25 in Westlaw computerized legal research expenses. Defendant appealed. &nb |