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2009 FLORIDA LEGAL ETHICS REVIEW By: Timothy P. Chinaris Thomas Goode Jones School of Law Faulkner University, Montgomery, Alabama Member and Past Chair, Florida Bar Professional Ethics Committee Copyright 2010
In today’s fast-paced world, attorneys in every area of practice work hard to stay abreast of changes and advances in the law. The field of legal ethics is no different – it continues to change and evolve, and it can be difficult for general practitioners to keep up with those developments. These materials and today’s presentation are designed to help busy lawyers be aware of significant developments in legal ethics that may affect them. The following summaries of rule changes, cases, and ethics opinions reflect developments that occurred during 2009. The summaries are arranged by subject. For continuing updates on Florida legal and judicial ethics developments, please visit the “sunEthics” website (www.sunEthics.com). Subjects addressed in this Review are:
RULE CHANGES (AND PROPOSED CHANGES) Florida Supreme Court approves multiple changes covering fees, conflicts, candor to the court, advertising, trust accounting and more. In re: Amendments to the Rules Regulating The Florida Bar, 24 So.3d 63 (Fla. 2009). The Florida Supreme Court issued its opinion responding to the Florida Bar's annual filing of proposed rule changes. The Court approved most of the requested changes. The amendments were effective on February 1, 2010. Attorney's fees (Rule 4-1.5). The Court amended Rule of Professional Conduct 4-1.5(e) to address nonrefundable fees. The rule continues to permit nonrefundable fees but specifies that a fee that is "nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee." The Comment clarifies that the client need not sign the writing: "A letter from the lawyer to the client setting forth the basis or rate of the fee and the intent of the parties in regard to the nonrefundable nature of the fee is sufficient to meet the requirements of this rule." Like all fees, nonrefundable fees must be reasonable. The Court, however, declined to adopt the Bar's proposed amendment to the Comment that would have defined "retainers," "flat fees," and "advanced fees." The Court explained: "If the Bar seeks to defined these terms, the definitions should be thoroughly studied and proposed as a portion of the rule, rather than placed in the Comment." Gifts to lawyers (Rule 4-1.8(c)). Rule 4-1.8(c) prohibits lawyers from soliciting gifts from clients or preparing documents giving them gifts from clients, unless the client is a relative. The amended Comment states that the exception to the prohibition applies to relatives "related by blood or marriage" to the lawyer. Financial assistance to clients (Rule 4-1.8(e)). The Court amended the Comment to Rule 4-1.8(e) to clarify that a lawyer may advance on behalf of a client expenses of "diagnostic medical examination used for litigation purposes." (In contrast, advances simply for medical treatment are not permitted.) Conflicts of interest involving former clients (Rule 4-1.9). The amendment adds new subsection (c), which prohibits a lawyer from "reveal[ing]" information relating to the representation of a former client without the former client's consent. The prior version prohibited only "use" of information to the disadvantage of a former client. The amended rule has exceptions to the prohibitions where the Rules Regulating The Florida Bar "permit or require" use or disclosure of the information (the prior exception referred only to "use"). The exception for "generally known" information continues to apply only to "use" of information about a former client. Candor toward the tribunal (Rule 4-3.3). The Bar proposed, and the Court adopted, 3 different amendments to Rule 4-3.3: • The first amendment moves language from the Comment to Rule 4-2.4 (lawyers as third-party neutrals) to the Comment to Rule 4-3.3. This language specifies that Rule 4-3.3 applies when a "dispute resolution process takes place before a tribunal, as in binding arbitration." Otherwise, the lawyer's duty of candor in alternative dispute resolution processes "is governed by rule 4-4.1." • The second amendment reorganizes Rule 4-3.3 to bring it into closer conformity with the ABA Model Rule. Significant changes to Rule 4-3.3: specify that a lawyer shall not make a false statement of any fact to a tribunal (not just a "material" fact); clarify that a lawyer must take reasonable remedial measures whenever "a lawyer, the lawyer's client, or a witness called by the lawyer" has offered material evidence and the lawyer later learns of its falsity; and add a provision from the ABA Model Rule requiring a lawyer with knowledge of criminal or fraudulent conduct in connection with an adjudicative proceeding to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal." Changes to the Comment: delete language suggesting that a lawyer's duty of candor may be different in civil and criminal matters; and add language specifying that a lawyer's duty of candor to the tribunal applies "in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition." • The third amendment addresses a lawyer's responsibilities regarding client perjury. The amended Comment removes language indicating that withdrawal from a representation could be a satisfactory "remedial measure" when a lawyer learns that a client or witness for the client has testified falsely, and adds language stating that "[i]n any case, the advocate should ensure disclosure is made to the court." The amendment also deletes language from the Comment that previously was inserted in order to harmonize the Rule and former Florida Ethics Opinion 90-6 (concerning a lawyer's client who gave a false name to a police officer when arrested). Opinion 90-6 has since been withdrawn and replaced by Florida Ethics Opinion 90-6 (Reconsideration), which may not be in harmony with all aspects of Rule 4-3.3 or its Comment. Celebrities and sounds used in lawyer ads (Rule 4-7.2). Use of celebrities and certain sounds (i.e., sounds that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener") are now prohibited in all forms of lawyer advertising. Direct mail ads in domestic violence injunction cases (Rule 4-7.4). Amended Rule 4-7.4(b) prohibits direct mail ads to prospective clients if the ad "concerns a request for an injunction for protection against any form of physical violence and is addressed to the respondent in the injunction petition, if the lawyer knows or reasonably should know that the respondent named in the injunction petition has not yet been served with notice of process in the matter." Speakers and sounds in TV and radio ads (Rule 4-7.5). The Bar proposed deleting the requirement that TV and radio ads identify a spokesperson as a nonlawyer when that is the case. (Nonlawyer celebrity spokespersons are prohibited under Rule 4-7.2.) As it had previously done in In re Amendments to The Rules Regulating the Florida Bar -- Advertising, 971 So.3d 763, 764 (Fla. 2007), the Court rejected this proposal. The Court quoted its reasoning as expressed in its prior opinion: "[C]urrent rule 4-7.5 requires a nonlawyer spokesperson who speaks on behalf of a lawyer or law firm to comply with certain requirements. The spokesperson must identify himself or herself as a spokesperson. Also, the spokesperson must disclose that he or she is not an attorney practicing with the lawyer or firm. The proposal for rule 4-7.5 would change the rule regarding affirmative disclosures by spokespersons. . . . In comparison to the proposal, the established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public. Therefore, the Court does not adopt the proposal." Bar review of ads (Rule 4-7.7). The amendment to Rule 4-7.7: extends from 15 days to 20 days the time in which the Bar must respond to a lawyer who files a TV or radio ad for review (the additional 5 days is for "mailing time"); and requires that TV or radio ad filings include "a printed copy of any on-screen text." The Comment was amended to clarify that an opinion of compliance from the Bar will be binding on the Bar "in a grievance proceeding." Lawyer referral services (Rule 4-7.10). The Court adopted the Bar's proposals for 2 amendments to Rule 4-7.10: • The first amendment adds language emphasizing that a lawyer must ensure that a lawyer referral service's ads comply with applicable rules before accepting referrals: "It shall be a violation of these Rules Regulating The Florida Bar and a failure of such responsibility if the lawyer knows or should have known that the service is not in compliance with applicable rules or if the lawyer failed to seek information necessary to determine compliance." • The second amendment broadens the definition of "lawyer referral service." The former definition referred to the service receiving a "fee or charge" for causing the direct or indirect referral to a lawyer "drawn" from a specific group or panel of lawyers. The new language refers to the receipt of "any consideration, monetary or otherwise, given in exchange" for a referral to a lawyer "selected" from a specific group or panel. Responding to inquiries from the Florida Bar (Rule 4-8.4). Amended Rule 4-8.4(g) makes failure to respond to an official inquiry without good cause "a matter of contempt" that may be processed in accordance with rule 3-7.11(f). As a result, the Bar can address a lawyer's failure to respond in a summary process rather than through the ordinary grievance process. Sex with clients (Rule 4-8.4). Amended Rule 4-8.4(i) creates a rebuttable presumption that sexual conduct commencing after formation of a lawyer-client relationship "exploits or adversely affects the interests of the client or the lawyer-client relationship." A lawyer may rebut this presumption "by proving by a preponderance of the evidence that the sexual conduct did not exploit or adversely affect the interests of the client or the lawyer-client relationship." The prohibition and presumption in the rule are personal to the involved lawyer and will do apply to other lawyers in the same firm "if the lawyer involved in the sexual conduct does not personally provide legal services to the client and is screened from access to the file concerning the legal representation." The amended Comment states that lawyer-client sexual conduct that began before formation of the lawyer-client relationship violates the rule if it "exploits the lawyer-client relationship, negatively affects the client's interest, creates a conflict of interest between the lawyer and client, or negatively affects the exercise of the lawyer's independent professional judgment in representing the client." Trust account deposits in IOTA accounts (Rule 5-1.1). Amended Rule 5-1.1(g) of the Rules Regulating Trust Accounts clarifies that "nominal or short term funds," which are exempt from the Interest on Trust Accounts (IOTA) Program, include funds that "the lawyer has determined cannot earn income for the client or third person in excess of the costs to secure the income." Trust account overdraft protection (Rule 5-1.1). New Rule 5-1.1(k) states: "An attorney shall not authorize overdraft protection for any account that contains trust funds." Trust account records (Rule 5-1.2). Amended 5-1.2 authorizes lawyers to maintain trust account records "stored in digital media as long as the copies include all data contained in the original documents and may be produced when required." Copies of deposit slips and cancelled checks are authorized forms of required records, provided that they are "clearly legible" and "include all endorsements and all other data and tracking information." Failure to comply with subpoena for trust accounting records (Rule 5-1.2). Amended Rule 5-1.2(g) makes failure to respond to timely produce trust accounting records "a matter of contempt" that may be processed in accordance with rule 3-7.11. The Bar thus can address a lawyer's failure to respond in a summary process rather than through the ordinary grievance process.
Florida Supreme Court dramatically changes rules governing lawyers' websites. In re: Amendments to the Rules Regulating The Florida Bar -- Rule 4-7.6, Computer Accessed Communications), 24 So.3d 172 (Fla. 2009) (revised opinion). In response to the Florida Bar's motion for rehearing, the Florida Supreme Court issued an opinion amending rules governing lawyer and law firm websites. Websites previously were considered "information upon request" and so were exempt from the lawyer advertising rules. The most significant change to Rule 4-7.6 was to make lawyer websites subject to all of the substantive lawyer advertising rules, with one exception: websites will not be required to be filed with the Bar for review. The Court explained: "[T]he purpose of rule 4-7.6 is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers’ abilities to provide information about themselves to the public. In light of this purpose, the Court intends that websites be subject to all of the substantive advertising regulations applicable to other advertising media (except the filing requirement)." (Footnote omitted.) The Board also adopted a new policy regarding advisory opinions. Bar staff will decline to review websites, even if filed under Rule 4-7.7. Bar staff will answer specific questions involving a particular phrase or image. Lawyer and law firm website may no longer include any references to past results or successes, testimonials, or statements characterizing the quality of the lawyer's services. See Rule 4-7.2. Websites still must "disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law." The rule does not mandate where on the website this disclosure must appear. The Court also amended portions of Rule 4-7.6 concerning direct email communications to prospective clients and Internet advertisements. The amended rule clarifies "that email communications are subject to the rules that regulate advertisements by traditional mail." Among other things, email communications must now: (1) include a statement of the advertising lawyers' qualifications ("background, training and experience"); (2) inform the recipient if a lawyer other than the advertising lawyer will actually handle the matter; and (3) begin the subject line with the words "LEGAL ADVERTISEMENT." Regarding Internet ads, the amended rule specifies that "[a]ll unsolicited computer-accessed communications concerning a lawyer's or law firm's services not addressed by other provisions of [Rule 4-7.6] are subject to the requirements of rule 4-7.2" (the general advertising rule). In a subsequent order the Court made the effective date of the revisions July 1, 2010.
Florida Bar asks Florida Supreme Court to exempt from advertising rules communications between lawyers and lawyers’ communications with current and former clients. In January 2009 the Florida Bar asked the Florida Supreme Court to amend Rule 4-7.1 to expressly exempt from the advertising rules lawyer-to-lawyer communication and lawyer-to-client communication. Proposed Rule 4-7.1(e) would state: “Subchapter 4-7 would not apply to communications between lawyers.” Proposed Rule 4-7.1(g) would state: “Subchapter 4-7 would not apply to communications between a lawyer and that lawyer’s own current and former clients.” The Bar asserted that these proposals were unnecessary, and backed up its position with survey of Florida Bar members. The Bar also stated that the U.S. Supreme Court’s lawyer advertising cases provided support for the proposals: The main state interests that the bar has advanced in regulating lawyer advertising are as follows: protecting the public from misleading information; encouraging lawyers to provide useful, relevant information in their advertisements; protecting the privacy of the public against invasive advertising by lawyers; protecting the vulnerable public from undue influence and overreaching by a trained advocate; and protecting the integrity of the justice system by preventing the dissemination of advertisements that tend to promote disrespect for lawyers by the public and by extension, disrespect for the justice system. Those purposes are not met by applying lawyer advertising regulations to communications between lawyers. Therefore, the bar’s position is that the regulation of communications between lawyers is not a reasonable fit to the rationale of the bar in propounding lawyer advertising regulations. (Commercial speech, such as lawyer advertising, may constitutionally be regulated only to protect a substantial state interest and only where that interest is directly advanced by the regulation and the regulation is no more extensive than necessary to serve that interest. See Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980).)
Florida Bar Professional Ethics Committee approves a proposed rule change regarding a lawyer’s duty to report another lawyer’s misconduct. In June 2009 the Florida Bar Professional Ethics Committee approved a proposed amendment to Rule 4-8.3, concerning reporting misconduct of others. The proposed change would create an exemption from the reporting requirement for information that a lawyer learned while serving as a third-party neutral and the information is privileged or confidential under applicable law. The proposed rule change will be considered by the Florida Bar Board of Governors.
Florida Supreme Court amends Rules of Criminal Procedure to require judges to inform defendants of driver's license consequences of guilty plea. In re: Amendments to Florida Rules of Criminal Procedure 3.172 and 3.985 and Amendments to Florida Rule of Civil Procedure 1.985, 20 So.3d 376 (Fla. 2009). The Criminal Procedure Rules Committee proposed an amendment to the Florida Rules of Criminal Procedure concerning a trial judge's disclosure to criminal defendants. The Florida Supreme Court adopted the proposal with minor modification, explaining: "The proposed amendment to rule 3.172 derived from this Court’s decision in Bolware v. State, 995 So.2d 268 (Fla. 2008), where we concluded that, while not a direct consequence of a guilty plea or plea of nolo contendere, the suspension or revocation of a driver’s license constitutes such a serious consequence that a defendant should be informed of it pursuant to rule. We adopt the Committee’s proposal with minor modification, thus amending rule 3.172(c) to require, pursuant to subdivision (10), that the trial judge determine whether the defendant understands 'that if the defendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is one for which automatic, mandatory driver’s license suspension or revocation is required by law to be imposed (either by the court or by a separate agency), the plea will provide the basis for the suspension or revocation of the defendant’s driver’s license.'"
Florida Supreme Court amends Florida Rule of Criminal Procedure 3.111(d) concerning waiver of counsel by criminal defendants suffering from severe mental illness. In re: Amendments to Florida Rule of Criminal Procedure 3.111, 17 So.3d 272 (Fla. 2009). On its own motion, the Florida Supreme Court amended Fla.R.Crim.P. 3.111(d), concerning waiver of counsel by criminal defendants who are suffering from mental illness. The change was prompted by the decision in Indiana v. Edwards, 128 S.Ct. 2379 (2008), wherein the United States Supreme Court held that a state constitutionally may limit a defendant's right to self-representation "by insisting upon representation by counsel at trial on the ground that, though competent to stand trial, the defendant lacks the mental capacity to conduct his own trial defense due to severe mental illness." The former version of Fla.R.Crim.P. 3.111(d) did not permit the trial court to take into consideration the defendant's mental capacity to represent himself, and thus the Florida Supreme Court revised the rule. As revised (with new language underscored), the rule provides: "Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself."
CASES AND ETHICS OPINIONS (BY SUBJECT) ADVERTISING Federal suit challenging Florida Bar lawyer advertising rules ends with summary judgment granted for the Bar. Harrell v. Florida Bar (M.D.Fla., No. 3:08-cv-15-J-33TEM, 3/30/2009). (For a complimentary copy of the court's order, email a request to Tim Chinaris at tchinaris@gmail.com.) A Jacksonville lawyer, his law firm, and a non-profit public interest organization sued the Florida Bar in the U.S. District Court for the Middle District of Florida. The suit alleged that certain lawyer advertising rules violate the First and Fourteenth Amendments to the U.S. Constitution and sought declaratory and injunctive relief. The challenged rules included: Rule of Professional Conduct 4-7.1 (ads must provide only "useful, factual information presented in a nonsensational manner"); Rule 4-7.2(c)(1)(D) (prohibits statements "unsubstantiated in fact"); Rule 4-7.2(c)(1)(G) (prohibits statements that "promise results"); Rule 4-7.2(c)(1)(I) (prohibits communication that "compares the lawyer's services with other lawyer's services"); Rule 4-7.2(c)(2) (prohibits statements "describing or characterizing the quality of the lawyer's services"); Rule 4-7.2(c)(3) (prohibits "visual and verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events" that are "manipulative, or likely to confuse the viewer"); and Rule 4-7.7(a)(1) (requiring filing of TV and radio ads prior to dissemination). The court granted the Bar's motion for summary judgment, concluding that the claims challenging the rules based on the law firm’s current advertising campaign (using the slogan "Don't settle for less than you deserve") were moot. The Bar's Board of Governors had ruled that the ads were permissible, and Rule 4-7.7(a)(2)(F) provides that "[a] finding of compliance by The Florida Bar shall be binding in a grievance proceeding, unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement." The court further concluded that plaintiffs lacked standing to challenge the constitutionality of any of the rules except the pre-screening requirement. Finally, even though the court ruled that plaintiffs had standing to challenge the pre-screening requirement for TV and radio ads, the court rejected plaintiffs’ claim that the rule was an unconstitutional prior restraint.
Another Florida lawyer files federal suit challenging Bar advertising rules on testimonials, past results, and statements of quality. Rothman v. Florida Bar (S.D.Fla., No. 09-80503-Civ-RYSKAMP/VITUNAC, filed 3/31/2009). A Florida lawyer filed suit in the United States District Court for the Southern District of Florida seeking an injunction declaring some of Florida's lawyer advertising rules unconstitutional. The suit arose from the lawyer's request to have clients post reviews of his services on a directory website, Avvo. The Bar indicated that this proposed conduct would violate the advertising rules. The lawyer sought to have these rules declared unconstitutional: Rule 4-7.2(c)(1)(F) (ads may not refer to past successes or results obtained); Rule 4-7.2(c)(1)(J) (ads may not contain testimonials); and Rule 4-7.2(c)(2) (ads may not describe or characterize quality of lawyer’s services). In November 2009 the Bar and the lawyer stipulated to a voluntary dismissal providing that the Bar would not apply the advertising rules to online directory profiles if the information is available to persons seeking information about a particular lawyer; the information cannot be available to someone conducting a general, non-specific search. (The stipulation was reached before the Florida Supreme Court’s decision applying the advertising rules to all lawyer websites.)
ATTORNEY-CLIENT RELATIONSHIP Trial court erred by failing to hold evidentiary hearing before concluding that no attorney-client relationship had been established for purposes of privilege question. Powell v. Solowsky, 14 So.3d 1064 (Fla. 3d DCA 2009). Plaintiff was a social friend of Lawyer who discussed legal issues relating to her or her business with Lawyer. Lawyer had also contacted other attorneys on Plaintiff's behalf. In the course of Plaintiff's suit Lawyer was called as a witness. Plaintiff objected to some deposition questions on the basis of attorney-client privilege. Defendants moved to compel Lawyer to answer, asserting that Lawyer never had an attorney-client relationship with Plaintiff. The court reviewed Lawyer's deposition and also viewed an email between Plaintiff and Lawyer in which Plaintiff indicated that Lawyer never had been, or would be, her counsel. Plaintiff contended that this statement was taken out of context and that there had been an attorney-client relationship between the two. Plaintiff's counsel asked for an evidentiary hearing on the issue of whether there was an attorney-client relationship, proffering that "in one particular matter, [Lawyer] had requested a referral fee." The court denied the motion for evidentiary hearing and ordered Lawyer to answer the deposition questions. The Third DCA granted Plaintiff’s petition for
writ of certiorari, concluding that Plaintiff was entitled to an evidentiary
hearing. "What gives us pause is the proffer that [Lawyer] had requested a
referral fee on one matter. Such a request would suggest the existence of an
attorney-client relationship on that matter. We are not convinced that the
answer to the question whether there was an attorney-client relationship can be
determined solely from the face of this record." Moving for continuance in criminal case was lawyer's decision and was proper even where client opposed it. Laidler v. State, 10 So.3d 1136 (Fla. 1st DCA 2009). Lawyer represented criminal Defendant. The state disclosed a witness very shortly before the scheduled trial date. The witness's deposition was set for the day before trial. The witness, however, could not be located at that time. The state made the witness available late the following day after jury selection and on the eve of trial. The witness’s testimony undermined Defendant's alibi defense. Lawyer moved for a continuance, expressing "the desire to interview people who could confirm or deny [the witness]’s testimony" and to depose the investigating officer. Defendant did not want a continuance. The court denied the motion, citing Defendant's wishes. The trial went forward and Defendant was convicted. Defendant appealed, contending that the court erred in not granting the continuance and asserting that Lawyer could not defend against the testimony because he had no opportunity to investigate or prepare a defense to it. The First DCA reversed and remanded for a new trial. "'A denial of a motion for continuance will be reversed when the record demonstrates . . . that adequate preparation of a defense was placed at risk by virtue of the denial.' . . . The trial court appears to have been persuaded not to grant the requested continuance because the defendant opposed the motion. However, moving for a continuance is a decision to be made by the defendant’s attorney, and, if appropriate, the motion should be granted, even if the defendant opposes it." (Citations omitted.)
$250,000 judgment is reversed, partly because one party's lawyer failed to fairly represent it during settlement conference. Ashtead Group PLC v. Rentokil Initial PLC, 7 So.3d 606 (Fla. 2d DCA 2009). Linssen was injured on equipment owned by a subsidiary of Rentokil PLC. Rentokil sold its stock in the subsidiary to Ashtead PLC. Under the sale terms Rentokil agreed to indemnify and hold harmless Ashtead for any liability due to claims such as Linssen's, and Ashtead agreed to cooperate in defending any such claims, including preservation of evidence. Linssen sued Ashtead. Rentokil hired a lawyer to represent Ashtead. Ashtead informed Rentokil that it could not find the equipment that caused the accident and Linssen's injuries. Prior to the scheduled mediation "the attorney hired by Rentokil but appearing on behalf of Ashtead sent a letter to Ashtead, which ostensibly was his own client, requesting that Ashtead participate in the mediation because the loss of the hoist motor had prejudiced the case by increasing the potential damages for which Rentokil ultimately might be responsible. Specifically, the letter stated, '[P]lease consider this a formal demand or Notice of Vouching In for indemnity of any additional damages resulting from the spoliation'" of evidence. Ashtead declined to participate, believing that the "vouching in" principle did not apply. A settlement was reached, with Ashtead to pay $500,000 to Linssen. However, "[w]ithout consulting with Ashtead, its counsel included the following language in the final mediation agreement: 'The parties agree that the spoliation increased the value of this case by $250,000, which is included in this settlement.'" Rentokil then filed suit against Ashtead, arguing that under the "vouching in" principle Ashtead waived all rights to contest its claim. The court entered judgment for Rentokil in the amount of $250,000. The Second DCA reversed. The "vouching in" principle of law was inapplicable; among other reasons, "Ashtead's interest in this particular issue was not fairly represented in the settlement conference. The issue here was not between Ashtead and Linssen, the parties to the litigation that was the subject of the mediation. Rather, this was an issue of fact between Ashtead and Rentokil based on Ashtead's agreement to preserve the evidence contained in the stock purchase agreement. That the attorney purportedly representing Ashtead's interest at the mediation conference was, in fact, not doing so is shown by his placing his own client on notice that it needed separate representation at the mediation."
Third DCA reminds lawyers of the high standards that apply when lawyers engage in business dealings with clients. Brigham v. Brigham, 11 So.3d 374 (Fla. 3d DCA 2009). See discussion in “Conflicts of Interest” section.
Florida Supreme Court imposes 18-month suspension on lawyer who started business that competed with one of his clients. Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009). See discussion in “Disciplinary Proceedings” section.
CANDOR TOWARD THE TRIBUNAL Florida Bar Board of Governors adopts advisory opinion allowing lawyers to represent criminal defendant who is proceeding under false name. Florida Ethics Opinion 90-6 (Reconsideration). In May 2009 the Florida Bar Board of Governors adopted a revised version of Florida Ethics Opinion 90-6 (Reconsideration). The headnote describes the opinion’s conclusions as follows: “A lawyer who learns that a criminal defendant is proceeding under a false name before the lawyer agrees to represent the criminal defendant who cannot persuade the client to correct the name must decline representation. A lawyer who learns that a criminal defendant who is an existing client is proceeding under a false name must withdraw from representation and must admonish the client not to commit perjury, but cannot disclose the client’s use of the false name to the court unless the client makes an affirmative misrepresentation to the court regarding the name.” The opinion outlines the lawyer's obligation if the court will not permit withdrawal: "If the lawyer learns of the false name after representation has begun, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name. . . . If the client refuses to disclose the information and insists that the client will maintain the false name throughout the case, the lawyer must move to withdraw from the client's representation. . . . The lawyer must counsel the client not to commit perjury. . . . If the court declines to permit withdrawal, the lawyer must continue the representation. . . . The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true name." [Emphasis added; citations omitted.] The opinion as adopted by the Board differed from the version previously approved by the Bar’s Professional Ethics Committee. The Committee version would have interpreted Rule 4-3.3 to require the lawyer to disclose that the client was proceeding under a false name. The Board’s opinion does not explain why continuing to knowingly represent a client who is proceeding under a false name would not be considered a fraud on the court under Rule 4-3.3.
CONFIDENTIALITY AND PRIVILEGES To successfully assert work product protection corporation must show that documents were prepared in anticipation of specific litigation matter. Neighborhood Health Partnership, Inc. v. Peter F. Merkle, M.D., P.A., 8 So.2d 1180 (Fla. 4th DCA 2009). A Health Maintenance Organization ("HMO") paid non-contract medical providers at a certain rate. Some of the providers asserted that they were entitled to be paid at higher rates pursuant to Florida law. The Florida Agency for Health Care Administration ("AHCA") asked the HMO to explain how its policy complied with the law. In preparing its response, HMO worked with a consulting firm and, presumably, its lawyers. After receiving HMO's response AHCA determined that it has no jurisdiction over the matter. The providers instituted litigation against HMO and requested production of certain documents. HMO objected on the basis of work product privilege. After reviewing the documents in camera, the court ruled that they were not protected as work product. The Fourth DCA declined to quash the production order. The documents "lack the essential ingredient necessary to make any brand of work product claim even arguable in this case – namely, a purpose other than ordinary business use and an attorney’s direct involvement in their creation or maintenance in connection with reasonably anticipated specific litigation." HMO misconstrued Southern Bell Telephone and Telegraph Company v. Deason, 632 So.2d 1377 (Fla. 1994). The court noted that the documents covered by work product privilege in Deason had the following attributes: "(A) they were created by the corporation’s lawyer for litigation already taking place; or, (B) they were created at the direction of the corporation’s lawyer for the litigation already taking place; and (C) they were not created and used initially in ordinary business activities." In contrast, the documents in the instant case had "[n]ot a single one of these attributes." In order for the work product privilege to apply to documents, they must have been "prepared in anticipation of litigation." Fla.R.Civ.P. 1.280(b)(3). The court stated that "[t]here must be some specific matter reasonably indicating litigation beyond the general business prospects of eventually getting sued." AHCA had not opened an investigation, formal or informal, of HMO. The court concluded: "We must not forget that the work product doctrine was created as a litigation privilege. It was never meant to apply to ordinary, routine, business-as-usual communications. That obviously means that it was not intended to protect the general foreseeability of being sued in the course of business – something HMOs routinely face. Hence we think, at a minimum, a claim of work product protection requires that a specific litigation matter can be reasonably anticipated as a result of an occurrence or circumstance – such as an act giving rise to the accrual of a cause of action." (Emphasis by court.)
First DCA discusses balancing test involved in determining whether "undue hardship" exception to work product privilege applies. Paradise Pines Health Care Associates, LLC v. Estate of Benekin, __ So.3d ___, 34 Fla.L.Weekly D2621 (Fla. 1st DCA, No. 1D09-961, 12/22/2009), 2009 WL 4912607. Plaintiffs sued Defendant nursing home and sought production of some incident reports. Defendant objected on the basis of work product privilege. The court ordered production: "[Plaintiffs] have further established their need for the [incident reports], in that Bettye Jean Benekin was suffering from dementia at the time of the incident at bar, and has since died. Thus, they have been unable to confer with her about events surrounding any of the incidents. [Defendant] has also failed to demonstrate any undue hardship which it would suffer by virtue of producing the incident reports." Defendant petitioned for a writ of certiorari, contending that the order should be quashed because the court misapplied Fla.R.Civ.P. 1.280(b)(3). The rule sets out 2 prongs that a party seeking production of work product material must overcome: "(1) a need for the document sought; and (2) an inability to obtain equivalent information without undue hardship." There was no dispute over the first prong; the only issue was "whether the [Plaintiffs] would suffer undue hardship in obtaining the information contained in the reports." To determine whether a moving party will experience the required "undue hardship," the court must "balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the [Plaintiffs] had no realistic way to independently procure the information and the [Defendant] had the incident reports at their immediate disposal." The trial court's reference to the lack of hardship on the part of Defendant did not indicate misapplication of Fla.R.Civ.P. 1.280(b)(3). "Rather, it indicates the court conducted a balancing test and determined the burden faced by the [Plaintiffs] was unduly difficult in comparison to the ease with which the defendant could produce the reports."
Non-party seeking protective order for confidential information not required to file privilege log. Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc., __ So.3d ___ (Fla. 4th DCA, No. 4D09-2388, 12/30/2009), 2009 WL 5126369. A Party in contentious litigation served Non-party with a subpoena duces tecum seeking an Asset Purchase Agreement. Non-party moved for protective order. Non-party then filed a notice of compliance and produced documents. It also filed a privilege log, but the Asset Purchase Agreement was not listed on the log. The court granted Party's motion to compel production. The Fourth DCA granted Non-party’s petition for writ of certiorari "[b]ecause the trial court did not conduct a balancing of interests analysis and failed to conduct an in camera inspection of the agreement to determine whether the privilege was valid." The appeals court rejected Party's contention that Non-party had waived its right to object because the Asset Purchase Agreement was not listed on the privilege log. "[A] privilege log is not required from a non-party producing documents. Florida Rule of Civil Procedure 1.280(b)(5) provides that when a party makes a claim that a document is privileged the 'party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. (Emphasis added [by court]). In contrast, a protective order is the available remedy for non-parties. Rule 1.280(c) provides: 'Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: . . .' (Emphasis added [by court]). The rules clearly differentiate between parties and other persons. Because the rule requiring a privilege log applies to parties and not to non-parties, [Non-party] did not waive its right to assert the confidentiality of its agreement by failing to list it in the privilege log."
Former client who gives deposition in suit for unpaid fees filed by her former lawyers waives attorney-client privilege, thus making that testimony available in other litigation. S & I Investments v. Payless Flea Market, Inc., 10 So.3d 699 (Fla. 4th DCA 2009). Law Firm represented Client in litigation. At the end of that suit Law Firm sued Client for unpaid legal fees. Client filed affirmative defenses including excessive fees, breach of contract, and negligence by Law Firm. Client was deposed in the fee suit. At her deposition, Client raised no claim of attorney-client privilege. Client's opponent in the original litigation sought a copy of Client's deposition transcript and exhibits. Client moved for a protective order, asserting attorney-client privilege. The court denied the motion, ruling that once Client gave her deposition in the fee suit she waived the privilege. The Fourth DCA agreed. Testimony given at a deposition in a suit between a former lawyer and the lawyer's former client is not a "confidential communication" as contemplated by the attorney-client privilege statute (F.S. sec. 90.502). The statute specifies that there is no attorney-client privilege when "[a] communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship." F.S. sec. 90.502(4)(c). The court further concluded that Client waived the privilege by testifying at the deposition. "Here, the client testified at the deposition and admits that she did not assert any claim of privilege at the deposition. She voluntarily gave testimony in a contested proceeding, recorded by both a videographer as well as a court reporter. She waived the privilege."
Party does not waive attorney-client and work product privileges merely by transmitting privileged documents to its own expert witness. Mullins v. Tompkins, 15 So.3d 798 (Fla. 1st DCA 2009). Plaintiff sued Defendant, alleging dental malpractice. Defendant's counsel sent some documents to Defendant’s Expert Witness. At his deposition Expert Witness testified that he received the documents but had not read them. Plaintiff sought production of the documents, contending that any applicable privileges were waived when Defendant disclosed the documents to Expert Witness. Defendant denied that she had any intent to waive the privileges; in fact, Defendant averred that the documents had been sent to Expert Witness inadvertently. (The parties apparently agreed that the documents would be protected by the attorney-client and work products privileges, if there was no waiver.) The court ruled that "by negligently including the materials in controversy when she made the transmittal to her expert, [Defendant] had waived all applicable privileges," and ordered the documents produced. The First DCA quashed the production order. The court noted that "[t]he principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert," citing Fla.R.Civ.P. 1.280(b)(4)(B), and continued: "Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence." (Citations omitted.) "The trial court gave no indication it did not believe [Expert Witness]'s testimony that he had not even read the privileged documents, much less find that he had relied on them in any way. Even assuming that work product and privileged communications provided to an expert witness become discoverable if used as a basis for the expert’s opinion . . . there has been no such showing here." (Footnote and citations omitted.) The court erred when it ruled that Defendant "waived her attorney-client privilege or work product protection solely by virtue of the fact that she turned over – inadvertently, as far as can be told from this record – the materials in controversy to an expert witness."
Court erred in ordering disclosure of documents based on alleged waiver of attorney-client privilege without conducting in camera review or delineating scope of waiver. Alliant Ins. Services, Inc. v. Riemer Ins. Group, 22 So.3d 779 (Fla. 4th DCA 2009). Reimer employed Turetsky in its insurance business. Turetsky signed a non-compete agreement. Turetsky left Reimer and went to work for Aliant. Reimer sued Alliant, Turetsky, and Alliant's COO for tortious interference with contract and breach of the non-compete agreement. Reimer sought production of all correspondence between Turetsky and "any employee, agent or representative of" Alliant. Reimer moved to compel production, alleging that "Alliant and the other defendants waived any claim of privilege as to communications regarding the non-compete agreement because Ken Zak, Alliant’s general counsel, swore in an affidavit that he had provided legal advice to Turetsky about the non-compete agreement." Alliant objected on grounds including attorney-client privilege. At the hearing on the motion, Alliant did not assert the attorney-client privilege as to communications between Zak and Turetsky, but did assert the privilege as to communications between Zak and Alliant's managers, officers, and directors. The court ordered production of the materials sought by Reimer, without conducting an in camera review of the materials as requested by Alliant. Furthermore, the order did not delineate the scope of the privilege waiver. The Fourth DCA quashed the order. "If a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure." (Citations omitted.) The trial court also should have delineated the scope of any privilege waiver in its order. "[I]f attorney-client privilege is waived regarding a certain matter, the waiver is limited to communications on the same matter. . . . If the parties disagree as to the scope of the privilege waiver, a trial court must delineate the scope of the waiver before it may compel discovery of information." (Citations omitted.)
Court misapplied "relevant circumstances test" factors in determining that inadvertent disclosure waived attorney-client privilege. Nova Southeastern University, Inc. v. Jacobson, __ So.3d ___, 35 Fla.L.Weekly D27 (Fla. 4th DCA, No. 4D09-683, 12/23/2009), 2009 WL 4928032. Plaintiff sued Defendant for allegedly terminating her employment in violation of the Florida Civil Rights Act and Florida Whistleblower Act. At deposition Plaintiff testified that she received a letter from Defendant's law firm addressed to officers of Defendant. Plaintiff said she was at the fax machine at her place of employment receiving some papers on an insurance claim when she saw and read the letter. According to Plaintiff, the letter "stated that the [Defendant] 'did not have enough performance issues to fire me, and that it would have to be a business decision whether I was going to remain an employee.'" Defendant’s counsel objected to Plaintiff's testimony about the letter on the grounds of attorney-client privilege, stating that the letter "'was obviously communicated accidentally.'" At the later depositions of two employees of Defendant, each was asked about the letter. Again defense counsel objected on privilege grounds. Defendant subsequently moved for a protective order, but the hearing on the motion did not occur for a number of months. In determining whether the inadvertent disclosure constituted a waiver of the attorney-client privilege, the court applied the five-factor test, often called the "relevant circumstances test," outlined in General Motors Corp. v. McGee, 837 So.2d 1010, 1040 (Fla. 4th DCA 2002): "1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the number of inadvertent disclosures; 3) the extent of the disclosure; 4) the delay in measures taken to rectify the inadvertent disclosures; and 5) whether overriding interests of justice will be served by relieving the party of its error." After applying the test, the court ruled that the letter was not protected by the attorney-client privilege and denied the motion for protective order. The Fourth DCA quashed the order. In determining whether the inadvertent disclosure had waived the privilege, the trial court selected the correct test – the "relevant circumstances test" – even though that test usually is used where privileged documents have unintentionally been sent to a third party, and in this case they were directed to the lawyer's client. The trial court did not properly apply the test, however. For example, the court "did not make a determination regarding the first factor of the reasonable precautions to prevent inadvertent disclosure." The court erroneously decided that Defendant unduly delayed taking measures to rectify the inadvertent disclosure. "Where the party who inadvertently produced the documents objects or demands return of the documents as soon as the disclosure is discovered, the party has not unduly delayed seeking measures to rectify the inadvertent disclosure. . . . [I]t is the assertion of the privilege at the earliest time through objection or motion which is the important measure in evaluating efforts to rectify the disclosure." The court also missed the mark regarding application of the fifth factor, the overriding interests of justice. Plaintiff's lawyer "clearly had to know that the letter was intended to be a confidential communication in that it provided legal analysis regarding the [Defendant/Plaintiff] employment relationship. The Rules of Professional Responsibility [sic] require that he notify the other attorney of this inadvertent disclosure. See Fla. R. Prof. Conduct 4-4.4(b) . . . Instead of following the rule, this attorney held onto the letter for years. The interests of justice require that the Rules of Professional Responsibility [sic] be honored." On remand the trial court was directed to "re-analyze" all five factors. "In particular, the court must make further findings regarding the first factor, namely what measures were taken to protect against inadvertent disclosure. The inquiry must focus on whether the client knew or should have known that the letter sent by the attorney would be viewed by third parties." (Emphasis by court.) The privilege belongs to the client.
Court erred by denying defendant's motion to compel deposition of plaintiff's counsel, who was potential material witness. Nucci v. Simmons, 20 So.3d 388 (Fla. 2d DCA 2009). Plaintiff was hurt in an auto accident and hired Lawyer. Plaintiff was treated by Doctor. Doctor's billing and payment for the treatment was handled outside of Plaintiff's insurance coverage, by Lawyer's office. Later it was determined that Doctor may have been within Plaintiff's insurance plan. Plaintiff sued Doctor "alleging damages stemming from [Doctor]'s failure to bill [Plaintiff] through the insurance network rather than through the independent arrangement." Doctor alleged that Lawyer had non-privileged information about the billing arrangements and sought to depose him. Plaintiff sought a protective order, which the court orally granted. Doctor then filed motions to compel Lawyer's deposition, and to disqualify Lawyer from representing Plaintiff on the ground that Lawyer would be a necessary witness at trial. The court denied both motions, "specifically stating that the two motions 'go hand in hand'." Doctor sought review in the Second DCA. The appellate court granted relief in part and denied it in part. The trial court did not depart from the essential requirements of law in denying the motion to disqualify. The record did not show Lawyer listed as a witness by either party. (The court noted that Doctor would be able to renew his motion to disqualify in the event that Lawyer was listed as a witness.) The trial court did err, however, in denying the motion to compel Lawyer's deposition. The issues in the 2 motions were "distinguishable," and should have been considered separately. Lawyer appeared to be a potential material witness. The appeals court recognized that "while deposing opposing counsel is fraught with concern," it noted that "there is no absolute prohibition to the practice." Further, "[c]ase law specifically suggests that in certain instances the taking of a deposition of opposing counsel should be allowed in order to determine whether a motion to disqualify that counsel should ultimately be granted" (citations omitted).
Party's possession of allegedly privileged documents does not require disqualification, where those documents were voluntarily disclosed to someone else in different proceeding. Walker v. River City Logistics, Inc., 14 So.3d 1122 (Fla. 1st DCA 2009). Counsel for Claimant in a workers' compensation case was disqualified "for possession of documents deemed privileged." Claimant petitioned the First DCA for writ of certiorari. The appellate court quashed the order. "The employer/carrier’s (E/C) motion to disqualify counsel contains statements that the E/C disclosed privileged documents to Claimant’s public defender in another proceeding. The E/C has not argued that this disclosure was inadvertent. The E/C’s voluntary disclosure of the documents waived the privilege. See § 90.507, Fla. Stat. (2006). Because the documents were no longer privileged, the JCC’s order disqualifying Claimant’s workers’ compensation counsel below departed from the essential requirements of law."
Adverse medical incident reports not protected from discovery as fact work product, but court suggests they may be protected as opinion work product. Florida Eye Clinic, P.A. v. Gmach, 14 So.3d 1044 (Fla. 5th DCA 2009). Plaintiff sued Eye Clinic and sought discovery of reports of adverse medical incidents over a 4-year period. Eye Clinic objected on grounds including work product privilege, attorney-client privilege, and that the request was overly broad and burdensome. Plaintiff moved for an in camera inspection, and the court ordered Eye Clinic to produce the records or file a privilege log. Eye Clinic filed a privilege log asserting only work product privilege. Ultimately the court ordered production, noting that in light of Article X, Section 25 of the Florida Constitution (adopted in 2004 as "Amendment 7"), "the privilege is no longer there." The court also referenced the Florida Supreme Court's decision in Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2008). The Fifth DCA denied Eye Clinic’s petition for writ of certiorari. The court, however, took care to distinguish between fact work product and opinion work product. The court observed that in Buster and in Advisory Opinion to the Attorney General re: Patients' Right to Know About Adverse Medical Incidents, 880 So.2d 617 (Fla. 2004), the Supreme Court did not rule that the attorney-client and work product privileges were abrogated by the adoption of Amendment 7. The appeals court, however, agreed with the trial court that "the plain language of amendment 7 evinces an intent to abrogate any fact work-product privilege that may have existed prior to the passage of amendment 7." (Emphasis by court.) The court concluded: "[T]he reports at issue are the types of reports that amendment 7 was designed to encompass. It would thwart the intent of the voters to allow [Eye Clinic] to circumvent amendment 7 by now asserting a fact work-product privilege in response to [Plaintiff]'s discovery request. Accordingly, the trial court correctly concluded that, in the context of this case, a fact work-product privilege is unavailable because of amendment 7. Another result might have been mandated had the reports at issue included the mental impressions, conclusions, opinions, or theories of an attorney's case. We do not read amendment 7 as evincing an intent from the voters to eliminate the privilege of opinion work product. . . . It is hard to imagine that the voters contemplated the potential chilling effect that may result in the legal community if an attorney's mental impressions contained in such a report could be made readily available to a requesting patient under the amendment."
Insurer successfully asserts attorney-client privilege (though not work product) in first-party statutory bad faith action. West Bend Mutual Ins. Co. v. Higgins, 9 So.2d 655 (Fla. 5th DCA 2009). Insured brought a first-party bad faith action against Insurer pursuant to F.S. 624.155. The court ordered production of documents that Insurer claimed were protected by attorney-client privilege. The Fifth DCA granted the Insurer’s petition for writ of certiorari as to two of the disputed documents. (The third document was a bill for legal services.) The court explained the "essential distinctions" between work product doctrine and attorney-client privilege. The court concluded that, although the work product privilege does not apply to protect materials in an insurer's claims file when a bad faith action has arisen, the attorney-client privilege remains applicable. "Although the Florida Supreme Court has concluded that section 624.155 applies to first-party insurance disputes as well as third-party claims, and that the immunity from disclosure of the claim file based on work product ought not to apply, nothing in [Allstate Indemnity Co. v.] Ruiz [899 So.2d 1121 (Fla. 2005)] suggests that the attorney-client privilege available to any contracting party, including insurers, somehow evaporates uniquely for insureds upon the filing of a bad-faith claim. We see nothing in Ruiz to suggest that a first-party insurer against whom a bad faith claim has been made is subject to the exposure of all its communications with its own counsel." The court also noted that none of the exceptions to the attorney-client privilege were applicable, stating in conclusion: "If there is to be a 'first-party-bad-faith-brought-under-section-624.155-exception' to Florida's statutory privilege for communications between attorney and client, it would be up to the Legislature to create it."
Second DCA quashes order requiring production of items in insurer's claims file during coverage dispute. Seminole Casualty Ins. Co. v. Mastrominas, 6 So.2d 1256 (Fla. 2d DCA 2009). Persons claiming to be insureds sued Insurer after Insurer denied coverage due to alleged material misrepresentation in the insurance application. During discovery plaintiffs sought production of Insurer's entire claims file. The court reviewed the file in camera and ordered production of some items, finding that they were not protected by attorney-client or work product privileges. The Second DCA quashed the order. "A trial court departs from the essential requirements of law in compelling disclosure of the contents of an insurer's claim file when the issue of coverage is in dispute and has not been resolved." The coverage dispute was ongoing, and Insureds had not alleged bad faith. In a footnote the court cautioned: "Our opinion should not be read as precluding appropriate discovery to the extent specific materials are discoverable. . . . Although a claims file is generally not discoverable, to the extent that materials contained therein are relied on at trial, those items may be discoverable. See Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004) (holding that materials reasonably expected or intended to be used at trial are subject to discovery)."
CONFLICTS OF INTEREST (INCLUDING DISQUALIFICATION) Florida Supreme Court imposes 18-month suspension on lawyer who started business that competed with his client. Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009). See discussion in “Disciplinary Proceedings” section.
Third DCA reminds lawyers of the high standards that apply when lawyers engage in business dealings with their clients. Brigham v. Brigham, 11 So.3d 374 (Fla. 3d DCA 2009). Lawyer was the trustee of trusts created for his elderly mother, and also acted as his mother's lawyer. As trustee, Lawyer transferred certain trust property to himself. Lawyer's relatives sued him, alleging breach of fiduciary duty. Lawyer prevailed in the trial court. The Third DCA reversed, "concluding that the trial court erred in ruling that [Lawyer] did nothing wrong in transferring the multi-million dollar Brigham Tree Farms Property to himself." Lawyer had a fiduciary duty as both a trustee and an attorney. The appeals court discussed the high standard to which lawyers are held when they engage in business dealings with clients. "An attorney in dealings with his client must exercise a much higher standard of good faith than is required in ordinary business dealings or arm’s length transactions. Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976). Transactions between an attorney and client, where the attorney profits at the client’s expense, will, if not void, be closely scrutinized to determine utmost good faith. Id. Business transactions between lawyers and clients are not prohibited by the Canons of Ethics. However, when they are alleged to have been unfair, this type of transaction is presumptively fraudulent and courts place the burden on the lawyer to prove complete good faith and the total absence of fraud or overreaching. Id.; The Fla. Bar v. Rhubottom, 132 So.2d 395 (Fla. 1961). The attorneys must show not only that they exercised no undue influence, but also that they gave their clients all the information and advice which it would have been their duty to give if the transaction were made with a stranger. Abstract & Title Corp. of Fla. v. Cochran, 414 So.2d 284, 285 (Fla. 4th DCA 1982)." After observing that Lawyer failed to meet this high burden, the court continued: "An attorney who self-deals with a client must demonstrate that the transaction was as beneficial to the client as if conducted at arm’s length between strangers. Jordan v. Growney, 416 So.2d 24, 25 (Fla. 4th DCA 1982). There is a heavy burden upon the attorney to show that the transaction was not influenced by the attorney/client relationship. Waldeck, 328 So.2d at 493. . . . [Lawyer] was involved in self-dealing as trustee and as attorney with his client and mother, and did not meet his burden of showing that these transactions occurred in good faith and fairness."
Court properly denied motion to disqualify moving party's former lawyer based on conflict rule that applies to current clients. Schulte v. Angus, 14 So.3d 1279 (Fla. 3d DCA 2009). Movant sought disqualification of the opposing party's lawyer "based on prior cases in which [Lawyer] had represented" Movant. The court initially granted the motion, then later vacated the order. The Third DCA denied Movant’s petition for writ of certiorari. The motion sought disqualification of Lawyer based solely on Rule of Professional Conduct 4-1.7. The record was "devoid of any evidence that [Movant] was an existing client of [Lawyer] at the time of the instant litigation. On its face, rule 4-1.7 is titled as applying only to 'Current Clients.' Indeed, no court has applied rule 4-1.7 to cases involving any individual or entity that is not a current client." (Citations omitted.)
Court properly denied motion to disqualify law firm based on alleged conflict of interest and breach of fiduciary duty. Kaplan v. Divosta Homes, L.P., 20 So.3d 459 (Fla. 2d DCA 2009). Husband and Wife ("Plaintiffs") filed a personal injury suit against Defendants. Plaintiffs moved to disqualify Defendants' counsel ("Law Firm") on several grounds: (1) a Law Firm lawyer allegedly owed Husband a fiduciary duty because Husband is a beneficiary of an estate in which the lawyer represents the personal representative; (2) Law Firm had an unfair informational advantage because Plaintiffs revealed information about the case to their neighbor's relatives, apparently without knowing that the neighbor was a lawyer who represented a party adverse to Husband in the probate matter, and that the neighbor-lawyer "passed 'a direct pipeline for information and cooperation' relating to their case to the Firm, which created a conflict and gave [Defendants] an unfair advantage in the" personal injury suit. The Second DCA concluded that the trial court did not abuse its discretion in denying the motion to disqualify. The conflict allegation failed because Plaintiffs had never had an attorney-client relationship with Law Firm. Husband "conceded that the Firm was always an adversary to him." Plaintiffs' argument that Law Firm should be disqualified because the Firm owed Husband a fiduciary duty arising from the separate probate matter also was meritless. "Even if there were some type of fiduciary duty relating to the administration of the estate, that relationship does not create an attorney-client relationship requiring disqualification. See In re Estate of Gory, 570 So.2d 1381, 1383 (Fla. 4th DCA 1990) [citing comment to Rule 4-1.7]." The court also rejected Plaintiffs contention regarding Law Firm's alleged access to confidential information through their neighbor: (1) Plaintiffs had no reasonable expectation of confidentiality as to the conversations; (2) Plaintiffs "were not engaged in an attorney-client relationship with the neighbor, his relatives, or the Firm;" and (3) "the Rules of Professional Conduct addressing the use of information to the disadvantage of another party only contemplate situations where information is gained from and used against a prior or current client [citing Rule 4-1.8(b) and Rule 4-1.9(b)]." Finally, Law Firm did not actually have access to confidential documents and information in the probate matter.
Trial court erred in disqualifying lawyer who would be called as witness by opposing party without determining whether lawyer's testimony would be adverse to her client. Alto Construction Co. v. Flagler Construction Equipment, LLC, 22 So.3d 726 (Fla. 2d DCA 2009). Plaintiff sued Defendant over contracts for equipment. Lawyer represented Defendant in this suit and other matters. Plaintiff moved to disqualify Lawyer, and the court ordered disqualification on the ground that Lawyer "will be a necessary and material witness." Specifically, "the circuit court found that [Lawyer] 'may very well be a material witness by having injected herself into the business dealings out of which this dispute arises.'" The Second DCA quashed the order. The Rules of Professional Conduct do not require a lawyer’s automatic disqualification when the lawyer is called to testify by the opposing party (citing Rule 4-3.7(a)). "Instead, an attorney that will be called as a witness by an opposing party may be disqualified if the attorney's testimony will 'be 'sufficiently adverse to the factual assertions or account of events offered on behalf of the client.'' AllliedSignal Recovery Trust [ v. AlliedSignal, Inc.], 934 So.2d [675] at 679 [(Fla. 2d DCA 2006)] (quoting Allstate Ins. Co. v. English, 588 So.2d 294, 295 (Fla. 2d DCA 1991)). We have explained that '[t]he requirement that a lawyer withdraw when he expects to be a witness was not intended to permit an opposing party to call him as a witness and disqualify him from serving as counsel.' Id. at 680." The court distinguished Fleitman v. McPherson, 691 So.2d 37 (Fla. 1st DCA 1997), on the ground that in Fleitman the lawyer would have testified "on behalf of his or her own client." "[T]he circuit court departed from the essential requirements of law when it disqualified [Defendant]'s attorney without determining whether [Lawyer]'s testimony would be adverse to [Defendant]'s factual assertions or account of events."
Law firm's effort to withdraw from case in response to motion to disqualify may not remedy problem. Lewis v. Nical of Palm Beach, Inc., 10 So.3d 159 (Fla. 4th DCA 2009). The "Lewis parties" were engaged in protracted litigation against "Opponents." The Lewis parties filed a motion to disqualify Law Firm, which was representing Opponents. In an appeal, the Fourth DCA indicated that the Lewis parties had shown a preliminary basis for the disqualification and remanded to afford Law Firm an opportunity to be heard before the motion was ruled upon. On remand, the trial court denied the disqualification motion without holding a hearing. The Fourth DCA reversed the order denying disqualification, concluding that the Lewis parties were entitled to an evidentiary hearing before the court ruled on the motion. "Our remand on the issue was solely for the purpose of affording the law firm notice and an opportunity to be heard prior to the imposition of such sanction. On remand, and in the face of the Lewis parties’ motions, [Law Firm] sought to avoid and/or remedy the issue by withdrawal from its representation of the [Opponents]. The Lewis parties insisted that withdrawal was insufficient and alleged in its motion that, despite all that had transpired, [Law Firm] continued to engage in misconduct and would continue to drive the litigation from the sidelines. Before the trial court could properly rule on the motion for disqualification, the Lewis parties were entitled to an opportunity to present evidence of [Law Firm]’s continuing misconduct, as alleged in their motion, and to demonstrate [Law Firm]’s voluntary withdrawal from the representation was insufficient and disqualification was necessary."
Court erred by denying defendant's motion to compel deposition of plaintiff's counsel. Nucci v. Simmons, 20 So.3d 388 (Fla. 2d DCA 2009). Plaintiff was hurt in an auto accident and hired Lawyer to represent her. Plaintiff was treated by Doctor. Lawyer's office handled Doctor's billing and payment for Plaintiff's treatment outside of Plaintiff's insurance coverage. Later it was determined that Doctor may have been within Plaintiff's insurance plan. Plaintiff sued Doctor "alleging damages stemming from [Doctor]'s failure to bill [Plaintiff] through the insurance network rather than through the independent arrangement." Doctor sought to depose Lawyer, alleging that he had non-privileged information about the billing arrangements. Plaintiff sought a protective order, which the court orally granted. Doctor then filed 2 motions: a motion to compel Lawyer's deposition; and a motion to disqualify Lawyer from representing Plaintiff on the ground that Lawyer would be a necessary witness at trial. The court denied both motions, "specifically stating that the two motions 'go hand in hand'." Doctor petitioned the Second DCA for a writ of certiorari. The writ was granted in part and denied in part. The trial court did not depart from the essential requirements of law in denying the disqualification motion. Lawyer was not listed as a witness by either party. The trial court did err, however, in denying the motion to compel Lawyer's deposition. The issues in the 2 motions were "distinguishable," and so the court should have considered the motions separately. Under the circumstances, Lawyer appeared to be a potential material witness. "[W]hile deposing opposing counsel is fraught with concern," it noted that "there is no absolute prohibition to the practice." Further, "[c]ase law specifically suggests that in certain instances the taking of a deposition of opposing counsel should be allowed in order to determine whether a motion to disqualify that counsel should ultimately be granted." (Citations omitted.)
Third DCA reverses circuit order permitting Public Defender's Office to decline representation in all future third-degree felony cases. State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009). The Eleventh Judicial Circuit Court entered an order permitting the Public Defender for that circuit ("PD11") to decline representation of defendants in all future third-degree felony cases. PD11 claimed conflict based on excessive caseloads caused by underfunding, and after an evidentiary hearing the court "found that PD11’s excessive caseload permitted only minimally competent representation." The Third DCA reversed the order. It disagreed with the trial court's approach of addressing the caseload issue, and related competence and conflict issues, in the aggregate. "The conclusion in the aggregate, that a conflict of interest exists, inherently lacks the meaningful individualized information required by such a determination. While it is well within the province of a trial court to determine whether counsel is sufficiently competent, this determination must occur on a case-by-case basis." The court also rejected PD11's contention that "the only standard controlling whether assistant public defenders should withdraw is set forth in the Rules Regulating The Florida Bar ('RRFB'). . . . The rules of professional conduct, however, are only meant to apply to attorneys, individually, and not the office of the Public Defender as a whole." There are several problems with the "average" approach to excessive caseload consideration: it treats all lawyers in the office the same, ignoring individual skill levels; it does not factor in the varying complexities of different cases; and it "violates the spirit, if not also the express language, of the RRFB. See, e.g., R. Regulating Fla. Bar 4-1.7(a) ('a lawyer shall not represent a client if . . . .') (emphasis added [by court]); R. Regulating Fla. Bar 4-1.7(b)(1) ('the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation . . . .') (emphasis added [by court]); R. Regulating Fla. Bar 4-1.16 ('a lawyer shall not represent a client . . . .') [emphasis added [by court]). Therefore, under the facts of this case, the determination of whether or not a conflict exists under the RRFB, must be made on an individual basis." The trial court's approach also ran afoul of F.S. sec. 27.5303 (2007). Finally, the court rejected the "inadequate funding" argument. PD11 had not used certain budgeted funds to fill positions, but to provide existing personnel with raises. The court suggested the solution to the excessive caseload problem "lies with the legislature or the internal administration of PD11, not with the courts." An assistant public defender must prove prejudice or conflict, apart from excessive caseload, in order to withdraw from a case.
Regional Conflict Counsel has no standing to object to Public Defender's motion to withdraw from case on conflict grounds. Johnson v. State, 6 So.3d 1262 (Fla. 4th DCA 2009). The appellate Public Defender ("PD") moved to withdraw from representation of an indigent criminal defendant on direct appeal because the PD's office already represented the defendant's co-defendant. The court had permitted the Public Defender to withdraw at the trial level due to the same conflict. The Regional Conflict Counsel ("RCC") objected to allowing the appellate PD to withdraw. The appellate court noted that the RCC "appears to be routinely demanding evidentiary hearings whenever the PD asserts a conflict in this court and moves to withdraw." RCC's principal substantive argument was that "the statute creating the new RCC system contemplates a determination by this court as to whether a true conflict exists." The court disagreed. "The plain meaning of this text is that the appellate PD’s certification alone is sufficient to shift representation of the defendant to the RCC." The statute places the determination of conflict on the PD, without inquiry by an appellate court. The court also concluded that RCC had no standing to object to the PD's motions to withdraw, and added: "The RCC’s lack of standing to object to withdrawal of a PD asserting conflict obviously applies as well in trial courts."
Court did not err in refusing to disqualify entire State Attorney's Office after it hired lawyer who had been representing defendant on his criminal case. Lot v. State, 13 So.3d 1121 (Fla. 3d DCA 2009). Defendant was represented by Lawyer. After representing Defendant for 5 months, Lawyer withdrew and took a position with the Monroe County State Attorney's Office. There Lawyer was "fully screened from the defendant's prosecution" and "did not discuss the case with any of his colleagues or supervisors." Defendant moved to disqualify the entire Monroe County State Attorney's Office. The motion was denied, the case was tried, and Defendant was convicted. On appeal he contended that the court erred in denying disqualification. The Third DCA affirmed. "[B]oth [Lawyer] and [Lawyer's supervisor at the State Attorney's Office, who was the prosecutor assigned to Defendant's case] offered clear and uncontroverted testimony establishing that they never discussed the defendant’s case, no confidential information was exchanged, and [Lawyer] did not see the file or assist in the prosecution of the case in any capacity. In addition, [Lawyer] instructed his assistant at the State Attorney’s Office to screen him from all correspondence involving this case, and to keep it from his view. Finding that the defendant failed to demonstrate actual prejudice, and that [Lawyer] (who was obviously disqualified) had been fully screened from his former client’s prosecution, the trial court denied the motion and allowed the case to proceed." The trial court did not err. The court concluded: "While [Lawyer]'s 'switching of sides' likely left the defendant with a regrettable sting, in the absence of actual prejudice, disqualification of the entire State Attorney’s Office was not required. See State v. Fields, 954 So.2d 1218 (Fla. 3d DCA 2007)."
Postconviction court should have appointed counsel after defendant claimed conflict with his lawyer, who had since left public defender's office. Howard v. State, 17 So.3d 774 (Fla. 2d DCA 2009). See discussion in “Ineffective Assistance of Counsel and Right to Counsel” section.
Neither trial counsel's personal dislike of client nor client's filing of Bar complaint resulted in ineffective assistance, per Supreme Court. Hutchinson v. State, 17 So.3d 696 (Fla. 2009). See discussion in “Ineffective Assistance of Counsel and Right to Counsel” section.
DISCIPLINARY PROCEEDINGS Florida Supreme Court imposes 18-month suspension on lawyer who started business that competed with one of his clients, despite referee’s recommendation of lesser sanction. Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009). Lawyer represented two companies owned by the same person, Titus. Aero Controls was in the aircraft parts sales and repair business, and Triple J Leasing leased aircraft. While representing the companies, Lawyer decided to form a new aircraft company, Nation Aviation. Lawyer was Nation’s president, sole director, and registered agent. Nation’s purpose was "the 'Purchase, Sale and Lease of aircraft engines and spare parts.'" Lawyer did not inform his clients of these developments. Lawyer also hired Bristol, Aero Controls' top salesman, to work for Nation. Later Lawyer had a falling out with his fellow investors, and ended up allowing Bristol to run Nation as a seller and lessor of aircraft parts. This meant that Lawyer's company was now in direct competition with his client, Aero Controls. Titus sued Lawyer for breach of fiduciary duty and prevailed. He also filed a complaint with the Florida Bar. The Bar charged Lawyer with conflict of interest violations, including Rule 4-1.7(a) (prohibiting representation of client if representation will be directly adverse to interests of another client) and Rule 4-1.8(a) (prohibiting business transactions with client or knowingly acquiring ownership, possessory, security, or other pecuniary interest adverse to client). The referee found Lawyer guilty and recommended a 90 day suspension and the performance of 200 hours of pro bono legal services. The Supreme Court instead suspended Lawyer for 18 months. The Court rejected Lawyer's argument that Rule 4-1.7 did not apply. "There is nothing in the language of the rule that restricts its application to directly adverse interests in the context of litigation between the two clients involved, as posited by [Lawyer]." The Court continued: "The fact that Titus became very angry and sued for breach of fiduciary duty when he learned that [Lawyer] owned Nation Aviation demonstrates the implausibility of [Lawyer] reasonably believing that his economic ties to and representation of Nation Aviation would not adversely affect his relationship with Aero Controls. . . . Here, [Lawyer] represented Aero Controls at the same time he represented Nation Aviation, his own company. Both companies performed the same services and functions and had the same pools of potential customers and potential suppliers. Litigation, contract disputes, and deal negotiations with one pool or the other would have been the most foreseeable legal activities on behalf of either client. . . . In the 'overpopulated' aircraft parts business, the loss of a contract or the failure of a negotiation for one client would have created additional opportunities for the other. The inherent, direct conflict was exacerbated by the fact that [Lawyer] owned one of the companies; his loyalties were not only divided, but unequal." The Court also approved the finding that Lawyer violated Rule 4-1.8(a), stating: "The rule prohibits two broad categories of conduct: (1) entering into a business transaction with a client; or (2) acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client. Only the first category involves transactions directly with the client. [Lawyer]’s conduct falls in the second category. [Lawyer]’s argument that the rule prohibits only business transactions directly with the client would make the second clearly identified category useless surplusage. [Lawyer]'s decision to invest in and form Nation Aviation, which was originally going to engage in the same business as Triple J Leasing, was problematic. Nevertheless, the referee concluded that this was not enough to violate the rule. However, when [Lawyer] changed the nature of Nation Aviation’s business (bringing Nation Aviation into direct competition with Aero Controls), [Lawyer] had an ethical obligation to disclose his activities to Titus; his failure to disclose and obtain Titus’s consent violated the rule." The Court did not approve the recommendation that Lawyer be required to perform pro bono service, noting that Rule 3-5.1 "allows for probation and certain kinds of additional training, but not for the provision of pro bono services." (Footnote omitted.)
Florida Supreme Court again imposes harsher disciplinary sanctions than recommended by referee, and refuses to recognize personal financial loss and embarrassment in mitigation. Florida Bar v. Ticktin, 14 So.3d 928 (Fla. 2009). Lawyer represented Client and corporations controlled by Client. The Securities and Exchange Commission brought a civil action against Client regarding one of the corporations. Lawyer represented Client in that action for a time. Later Client was charged criminally. In anticipation of his arrest, Client met with Lawyer to discuss who would replace Client as CEO. It was decided that Lawyer would take the position. (Lawyer later claimed that Client tricked him into this, and the referee in the disciplinary case believed Lawyer.) A press release prepared by Client announced that Lawyer had taken over. Later, with Lawyer' participation, Client was completely ousted from his interest in one of the related corporations. The Bar filed disciplinary charges against Lawyer. The referee found Lawyer guilty of violating Rules of Professional Conduct 4-1.7(a) (representing clients with directly adverse interests), 4-1.7(b) (personal interest conflict), 4-1.7(c) (failure to explain conflict), and 4-1.8(a) (business transaction conflict with client). In a second count, Lawyer was charged with breaching client confidentiality. At a bond hearing Lawyer testified that he did not believe that Client was a flight risk. Lawyer later observed Client's demeanor and changed his opinion about Client being a flight risk. Lawyer wrote to the assistant U.S. attorney withdrawing his testimony. The Bar charged Lawyer with breaching Rule 4-1.6 and Rule 4-1.8(b). The referee found Lawyer not guilty, stating that "because Lawyer changed his opinion, had he not withdrawn his testimony, he would have violated rule 4-3.3(a)(4), providing that if a lawyer 'has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures.'" The Supreme Court upheld the referee. The referee recommended that Lawyer be admonished. The Bar sought review, seeking a 60-day suspension. The Supreme Court went further. The Supreme Court approved the referee's recommendations as to guilt on the conflict charges. The record showed that Lawyer "immersed himself in a conflict-laden situation and acted in clear violation of rules 4-1.7(a)-(c)." (Footnote omitted.) Regarding the business transaction with clients conflict, the Court stated: "[Lawyer] argues that the writing requirement of the rule should not be strictly interpreted to require that the writing be prepared by the attorney and urges us to find that the press release prepared by [Client] was sufficient in this case. We agree with the Bar that rule 4-1.8(a) contemplates that the attorney will prepare the written document disclosing the terms of the transaction by requiring that the terms must be 'fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client.' The Bar also is correct that even if the writing could be prepared by the client, the referee found that the press release prepared by [Client] did not 'fully disclose the terms of the transaction,' i.e., it did not state that [Client] was waiving any conflict of interest." (The Court also noted that, when Client was presented with a written version of the oral conflict waiver that Lawyer had allegedly obtained, Client had refused to sign it.) The Court approved the aggravating and mitigating factors, with one exception. The referee found the mitigating factor of "imposition of other penalties or sanctions" because Lawyer "(1) continues to fulfill his financial obligations even though he was forced to declare bankruptcy after he lost millions of dollars from his personal wealth, and (2) has experienced profound personal and professional embarrassment from being involved in the present disciplinary process." The Court rejected this finding as clearly erroneous. "[W]e see no reason to recognize [Lawyer]’s substantial personal economic losses and his embarrassment, all of which resulted from [Lawyer]’s serious professional misconduct, as other mitigating factors not enumerated in the standards." The Court also rejected the referee's recommended discipline of admonishment and suspended Lawyer for 91 days. "[Lawyer]'s blatant disregard for the rules governing conflicts of interest reflects his poor professional judgment. [Lawyer]’s misconduct is unbecoming of a member of The Florida Bar, and such misconduct will not be taken lightly by this Court. Therefore, we impose a ninety-one-day suspension to emphasize to the Bar and the public that misconduct like [Lawyer]’s will result in severe disciplinary consequences."
Rejecting lesser sanction, Supreme Court suspends lawyer (who was just elected to the circuit bench) for disrespectful conduct toward a presiding judge. Florida Bar v. Abramson, 3 So.2d 964 (Fla. 2009). Lawyer represented a criminal defendant. The presiding judge showed up 16 minutes late for trial. Lawyer thought that the case could be quickly disposed of via motion and wanted the judge to hear his motions before starting the trial. The prospective jurors had already been seated, however, and the judge began jury selection. This apparently upset Lawyer, who interrupted the judge, repeatedly asked to approach the bench, and "was discourteous and disrespectful to [the judge] in the presence of the prospective jurors." (The assistant state attorney on the case later described Lawyer's conduct as "beyond belief and unlike anything he had seen before.") The Florida Bar charged Lawyer with ethical violations. The referee recommended that Lawyer be found guilty of violating various Rules of Professional Conduct and recommended that Lawyer be publicly reprimanded, placed on supervised probation for 1 year, attend the Bar's Professionalism School, and attend the Bar's Ethics School. On review, the Florida Supreme Court agreed with the Bar that the recommended discipline was too lenient. The Court suspended Lawyer for 91 days (thus requiring that Lawyer demonstrate rehabilitation before being reinstated). The Court summarized: "[Lawyer]’s misconduct was egregious. He was disrespectful and confrontational with the presiding judge in an ongoing courtroom proceeding in the presence of the pool of prospective jurors in a criminal case. Regardless of any perceived provocation by the judge, [Lawyer] responded inappropriately by engaging in a protracted challenge to the court’s authority. His ethical alternative, if he believed the trial court had erred, was by writ or appeal. He has also been publicly reprimanded twice before for serious misconduct. NOTE: In a subsequent proceeding, the Florida Supreme Court advised the Governor that Lawyer was not eligible to assume judicial office. Fla. Constit. Art. V, Sec. 8 provides that, "No person is eligible for the office of circuit judge unless the person is, and has been for the preceding five years, a member of the bar of Florida." Under Rule 3-5.1(e), Rules Regulating The Florida Bar, a suspended lawyer remains a member of the Florida Bar but does not have the privilege of practicing law. Citing decisions from other jurisdictions, the Court stated: "[It is the 'common sense understanding' that where Bar membership is an eligibility requirement for judicial office, one may not be a judge in a court in which one's own practice as a lawyer would be disallowed." Consequently, the court concluded that "a lawyer who is suspended from the practice of law fails to satisfy the constitutional eligibility requirements for a circuit court judgeship." Advisory Opinion to the Governor re: Commission of Elected Judge, 17 So.3d 265 (Fla. 2009).
Florida Supreme Court disbars lawyer for sexual misconduct, falsifying evidence, and trust account violations. Florida Bar v. Tipler, 8 So.3d 1109 (Fla. 2009). In 3 separate cases the Florida Bar charged Lawyer with various types of misconduct. In one case, Lawyer was accused of entering a fee agreement with a female client that provided for "credits" against the fee owed for sexual favors by the client and other women procured by the client. Lawyer also was charged with using an edited tape as evidence in a trial proceeding without disclosing that it was edited, and with having his client's son authenticate the tape without informing the son that it was edited. In the third case Lawyer was charged with numerous trust accounting violations and other financial misconduct. The referee found Lawyer guilty of multiple violations and recommended an 18-month suspension in the first case, a 3 year suspension in the second case, and disbarment in the third case. Lawyer sought review in the Florida Supreme Court. The Court disbarred Lawyer, summarizing: "[Lawyer] has broken numerous Bar rules. He satisfied his own sexual appetite with a client as part of a sex-for-fees arrangement. He altered evidence and caused a witness to unknowingly give false testimony. He has charged his clients excessive fees and stolen their money. He has failed to maintain a trust account. He has broken public confidence in the profession of the practice of law by neglecting his clients and failing to prosecute their cases. He has labored under a conflict of interest. He has prejudiced the administration of justice by misrepresenting facts to multiple courts. And, throughout the disciplinary process in these cases, he has been dilatory, deceitful, and evasive. [Lawyer] has thus engaged in an ongoing pattern of egregious misconduct. Although we question whether [Lawyer] is truly amenable to rehabilitation, we take into account the mitigating factors found by the referee in Case No. SC03-149 and choose not to permanently disbar [Lawyer] at this time."
Florida Supreme Court disbars lawyer for two instances of engaging in unlicensed practice of law. Florida Bar v. D'Ambrosio, __ So.3d ___, 34 Fla.L.Weekly S621 (Fla., Nos. SC07-1369, SC08-256, 12/12/2009), 2009 WL 3763081. See discussion in “Unauthorized Practice of Law” section.
Florida Supreme Court refuses reinstatement for a lawyer who engaged in the "practice of law" while suspended; definition of practicing law discussed. Florida Bar re: Michael Howard Wolf, 21 So.3d 15 (Fla. 2009). See discussion in “Unauthorized Practice of Law” section.
Florida Supreme Court sanctions disbarred lawyer who submitted numerous filings seeking readmission. Florida Board of Bar Examiners re: Anthony Eladio Ramos, 17 So.3d 268 (Fla. 2009). Lawyer was disbarred in 1997 for 20 years, but submitted numerous filings to the Florida Supreme Court seeking readmission. The Court entered an order to show cause why Lawyer should not be sanctioned for "submitting frivolous filings." Despite Lawyer's response, which made the "inapt assertion that he is an industrious professional who is 'not inclined to firvolity,'" the Court imposed sanctions. The Court instructed the Clerk of the Court "to reject for filing any future pleadings, petitions, motions, notices, or other filings submitted by [Lawyer] that are related to his judgments of disbarment or his potential readmission to The Florida Bar, unless the filings are signed by a member in good standing of The Florida Bar."
Trial court erred in granting summary judgment for law firm sued on fee-sharing agreement by disciplined attorney. Chastain v. Cunningham Law Group, P.A., 16 So.3d 203 (Fla. 2d DCA 2009). In October 2003 a suspended Lawyer entered into a written agreement with Law Firm (not the firm to which Lawyer had belonged) whereby Law Firm assumed responsibility for Lawyer's unfinished cases, both hourly fee and contingent fee matters. Law Firm would pay Lawyer as an "independent contractor" for working on the cases, and compensate him for unpaid fees and advanced costs when the contingent fee cases were resolved. The Second DCA summarized the financial terms: "[T]he Law Firm was to pay [Lawyer] compensation at an hourly rate for paralegal work performed by him after the date of the agreement. For work performed before [Lawyer’s] suspension from the practice of law, the Law Firm agreed to pay [Lawyer] on a quantum meruit basis when the cases concluded. Any payments made for work done at an hourly rate were to be credited against the amounts that might be due [Lawyer] in quantum meruit for work he had performed before he was suspended." The agreement was reviewed and approved by The Florida Bar. In March 2005 Lawyer submitted a petition for disciplinary resignation to the Florida Supreme Court, which granted it effective nunc pro tunc July 2003. In 2006 Lawyer sued Law Firm, alleging that the firm owed him money under their agreement. Law Firm moved for summary judgment, claiming that Lawyer "'chose for his own benefit to voluntarily resign from [T]he Florida Bar and thus make it impossible for him to represent his client'" and that, consequently, he was barred from receiving compensation under Faro v. Romani, 641 So.2d 69 (Fla. 1994) (lawyer who voluntarily withdraws from contingent fee case before contingency occurs forfeits right to compensation). The court granted Law Firm's motion for summary judgment. The Second DCA reversed, concluding that Faro was inapplicable. "Unlike the situation in Faro and similar charging lien cases, here [Lawyer] is not seeking to impose a charging lien on any client's settlement or award. Nor does he seek the recovery of fees against any of his former clients. Instead, [Lawyer] is seeking to enforce a written contract with the Law Firm, a successor that assumed a number of his pending cases and agreed to pay him a fee based in quantum meruit for the work he had done and the expenses he had incurred in connection with those cases during the period of time that he was authorized to practice law. The Law Firm was fully informed about [Lawyer]'s status as a suspended lawyer when it entered into the agreement, and it sought and obtained approval of the agreement from The Florida Bar." The court also cited with approval several opinions of the Florida Bar Professional Ethics Committee: Florida Ethics Opinions 90-3, 72-16, 66-20, and 65-21. The court rejected Law Firm's contention that the opinions were not authoritative: "We agree that the ethics opinions of The Florida Bar are not controlling; nevertheless, they are persuasive authority and, if well reasoned, are entitled to great weight. [Citations omitted.] We find The Florida Bar ethics opinions cited above to be persuasive and well-reasoned. Moreover, these opinions are in accord with well-reasoned decisions on the subject from courts in other jurisdictions."
FEES (INCLUDING ATTORNEYS’ LIENS) Trial court erred by ordering injunctive relief in addition to enforcing lawyer's charging lien. Weiss v. Weiss, 5 So.3d 758 (Fla. 5th DCA 2009). Lawyer had a fee dispute with his client in a dissolution of marriage case. Lawyer withdrew and filed a motion for attorney's fees and a charging lien. The court granted the fees and imposed a charging lien. Lawyer also informed the court that the client published defamatory statements about him on various Internet websites. The court ordered Lawyer's former client to stop making the allegedly defamatory statements and to remove them from the websites. The former client appealed. The Fifth DCA affirmed the order imposing the charging lien but reversed the portion of the order enjoining the former client from making the statements about Lawyer. The court exceeded its jurisdiction by ordering the injunctive relief.
Law firm's charging lien enforceable against opposing party who had notice of lien but paid settlement without protecting firm's claim. Hall, Lamb & Hall, P.A. v. Sherlon Investments Corp., 7 So.3d 639 (Fla. 3d DCA 2009) (on rehearing). Plaintiffs sued Former Client, which hired Law Firm to defend it and assert counterclaims. Law Firm was to receive a partly fixed and partly contingent fee. Former Client fired Law Firm shortly before a Plaintiff-Former Client mediation. Law Firm filed a notice of charging lien. Former Client hired Suspended Lawyer and settled with Plaintiff. Plaintiff paid the settlement proceeds to Suspended Lawyer. The case was dismissed with prejudice on November 6, 2006. Plaintiff did not notify Law Firm of the settlement or its payment of the settlement proceeds to Suspended Lawyer. On November 7, 2006, Lawyer Firm learned of the settlement from a third party and filed a motion to adjudicate its charging lien. The trial court ordered Former Client and Suspended Lawyer to pay the fee of more than $76,000. Law Firm could not collect and moved to adjudicate its charging lien against Plaintiff. The motion was denied. The Third DCA reversed. Law Firm perfected its charging lien by timely notice to the parties. "Such perfected lien is 'chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future'" (quoting Hutchins v. Hutchins, 522 So.2d 547, 549 (Fla. 4th DCA 1988) (emphasis by Third DCA). Plaintiff had notice of Law Firm's lien and thus "had an affirmative duty to notify the law firm of the settlement and to protect the law firm's lien interest in the settlement proceeds" (citing Zaldivar v. Okeelanta Corp., 877 So.2d 927, 930 (Fla. 1st DCA 2004). "[A]lthough [Plaintiff] and the former client reached a settlement by the end of September 2006, [Plaintiff] failed to notify the law firm of the settlement in any way until November 2006 – when the parties obtained a dismissal of the action with prejudice from the trial court. Furthermore, [Plaintiff] took no other steps to protect the law firm’s interest. . . . Instead, [Plaintiff] paid the entire settlement to the former client (through [Suspended Lawyer]) without providing safeguards for the law firm’s lien interest. And regardless of [Plaintiff]’s intent, by doing so, [Plaintiff] committed a fraud upon the law firm." As a result Plaintiff, along with Former Client and Suspended Lawyer, "is jointly and severally liable for the law firm's fee as calculated in accordance with the settlement agreement.
Prejudgment interest on attorney's fees and costs awarded pursuant to charging lien runs from date former client received settlement proceeds. McCarthy v. Estate of Krohn, 16 So.3d 193 (Fla. 4th DCA 2009). Law Firm represented Client on a contingent fee basis in a boating accident suit. Client discharged Law Firm, and Law Firm filed a charging lien for attorney's fees and costs. Successor counsel settled Client's case on December 20, 2007. After "extensive hearings" on the charging lien, the court awarded attorney's fees and costs to Law Firm. The court denied Law Firm's request for prejudgment interest on the basis that the attorney's fee was "unliquidated." Regarding costs, the court ruled that Law Firm was entitled to prejudgment interest "from the date that the law firm paid or incurred each cost." Client appealed the award of prejudgment interest on the cost award, and Law Firm cross-appealed the denial of prejudgment interest on the attorney's fee award. The Fourth DCA ruled that the trial court erred in both of its prejudgment interest rulings. The operative agreement between Client and Law Firm provided that Client "would reimburse costs when she recovered money in the case." Consequently, "prejudgment interest on the cost award should run from December 20, 2007, the date the case was settled, or from a later date, if that was the time [Client] received payment on the settlement." As to interest on the fee award, the court determined that Law Firm was entitled to prejudgment interest on the fee award from the date Client received the settlement proceeds.
Court erred in imposing lien on homestead property for attorney's fees incurred in estate matter. Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009). Lawyer Yates was appointed as Curator for a decedent's estate. Decedent's alleged second wife, Constance, was joint owner of homestead property in the estate. Yates did legal work for the estate. "The services were for the administration of the Estate as a whole. The services were not conducted for the specific purpose of preserving, insuring, and protecting the homestead property." The court put a lien on the homestead property for fees and costs incurred by Yates. Constance appealed, arguing that statutory requirements of the probate code (specifically, F.S. sec. 733.608) for placing a lien on homestead property in an estate matter had not been met. Agreeing, the Fourth DCA reversed. "The trial court’s decision to impose the lien pursuant to section 733.608 was improper because, in accordance with the plain meaning of the statute, Yates failed to meet its requirements. This is because: (1) Yates has not, and cannot, take possession of the property, as it is occupied by an 'interested person;' [joint owner Constance] and (2) the fees incurred by Yates for which the lien was imposed were not incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property."
Lawyer's right to charging lien not eliminated by the 2003 statutory changes to workers' compensation law; First DCA discusses apportionment of fee between original and successor counsel. Rosenthal, Levy & Simon, P.A. v. Scott, 17 So.3d 872 (Fla. 1st DCA 2009). Lawyer represented Client, a workers' compensation claimant, from September 2007 through May 2008. The Employer/Carrier offered a $7500 settlement. Before the offer was accepted, Client discharged Lawyer and hired successor counsel. Successor counsel settled the case for $10,000. Lawyer filed a charging client for the value of his services provided prior to discharge. The Judge of Compensation Claims ("JCC") "denied [Lawyer]’s entitlement to fees under a quantum meruit theory, concluding that because [Lawyer] did not 'secure' any benefits, no fees were due under the statute. In reaching this conclusion, the JCC determined that in the 2003 revision of the workers’ compensation fee statute, particularly section 440.34(1), Florida Statutes (2003), the Legislature restricted fee entitlement to only the attorney responsible for 'securing' benefits, and thus implicitly overruled this court’s holding in The Law Office of James E. Dusek, P.A. v. T.R. Enterprises, 644 So.2d 509 (Fla. 1st DCA 1994)." The First DCA reversed. "Quantum meruit fee liens are applicable to workers’ compensation settlements. . . . A charging lien differs in nature from a claim for attorney’s fees. . . . Florida courts have consistently defined a charging lien as an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. . . . Here, the JCC decided, as a matter of law, that [Lawyer] was not entitled to a fee lien because Dusek 'predates' the 2003 changes to the attorney’s fee statute. We disagree." (Citations omitted.) Nothing in the 2003 statutory change "suggests that the Legislature, in limiting the amount of fees a claimant must pay for benefits secured, intended to alter or overrule the Dusek holding relative to a discharged attorney’s entitlement to a charging lien." (Emphasis by court.) Regarding the amount of Lawyer’s charging lien, the court stated: "We hold, therefore, that under the 2003 Workers’ Compensation Law, the clear legislative intent was to limit the amount of attorney’s fees payable by a claimant for benefits secured. In cases where the discharged attorney successfully proves entitlement to a charging lien, the JCC is required to apportion the fee between the discharged attorney and the successor attorney. Attorneys who accept a workers’ compensation case with prior representation will be well advised to familiarize themselves with the work of prior counsel and utilize the foundation already laid so as to avoid duplication of efforts. In deciding quantum meruit fee liens, the law presumes regularity and competence in the services performed by the successor attorney."
Judge of Compensation Claims erred in dismissing substituted counsel's charging lien before claimant settled case. Zaldivar v. Florida Transport 1982, Inc., 19 So.3d 1093 (Fla. 1st DCA 2009). Lawyer represented Claimant in a workers' compensation case. Lawyer left the case, filing a substitution of counsel and preserving his attorney's fee lien. Four years later the employer/carrier ("E/C") requested that an attorney's fee lien hearing be scheduled. Lawyer appeared and "objected to the hearing going forward, asserting that determination of his lien was premature because the claimant had not settled his case with the E/C, and the JCC [Judge of Compensation Claims] was without authority to require [Lawyer] to file a verified petition for attorney's fees." Disagreeing, the JCC dismissed Lawyer's lien. The First DCA reversed. "A lien is an equitable right that generally lasts until the property, here, the settlement of the claimant’s case, is created, at which time the attorney can proceed to enforce the lien." The case had not yet settled, so the JCC erred in dismissing the lien.
JCC properly denied fee to lawyer who did not timely prove that his services secured claimant's benefits. Richard E. Zaldivar, P.A. v. Shaboun, 19 So.3d 397 (Fla. 1st DCA 2009). Lawyer represented Claimant in a worker's compensation case. Before the case was concluded, Lawyer was replaced by another lawyer. Lawyer sought a fee. The employer and carrier agreed to the fee, but the stipulation submitted by the parties in October 2007 did not include the information required for approval by the Judge of Compensation Claims ("JCC"). In November 2007 a memorandum from the JCC directed Lawyer to submit the necessary documentation. Lawyer did not provide the information. In December 2007 the JCC ordered Lawyer to schedule a telephone hearing on the fee motion. Prior to the hearing, Lawyer was to submit documentation showing that his services resulted in the benefits for Claimant. Although Lawyer failed to provide the documentation by the time of the hearing, the JCC did not deny the fee motion but kept the matter open until February 28, 2008, when he entered an order denying Lawyer's motion for fees. Lawyer appealed, contending "that the judge should not have denied the motion for attorney’s fees without setting a fixed time limit for providing the necessary documents." The First DCA affirmed, stating: "It would have been clear to any lawyer that the documentation was to be presented immediately. The judge requested the information on three occasions and ultimately allowed more than three months to provide it." The JCC "had authority to require counsel to submit evidence in support of the motion for an attorney’s fee" and "correctly denied the motion on the ground that the evidence had not been presented."
JCC did not err in concluding that paralegal time is included in attorney's fees under statutory workers' comp fee schedule. Demedrano v. Labor Finders of the Treasure Coast, 8 So.3d 498 (Fla. 1st DCA 2009). A Judge of Compensation Claims ("JCC") denied Claimant's request for reimbursement of paralegal costs. Claimant appealed, arguing that "the JCC erred by finding he had jurisdiction to review costs to be reimbursed to Claimant's attorney from settlement proceeds, and by finding that paralegal time is not a reimbursable cost, but is instead included within attorney time." The First DCA affirmed. Regarding the JCC's authorization to review costs, the court noted that a JCC is required to approve any attorney's fee paid as a result of a settlement agreement, and concluded: "Because the JCC is authorized to do whatever is necessary to insure that a fee in excess of the fee schedule is not approved, the JCC had jurisdiction to review the costs to determine whether the costs included any element that should have been included in the attorney's fee." As to reimbursement for paralegal costs, the court stated: "The change in section 440.34(1), Florida Statutes (2003), as it relates to attorney's fees to be paid pursuant to a joint stipulation for lump sum settlement, altered the basis for determining the fee amount, requiring all fees be based solely upon benefits secured. Because paralegal time falls within the ambit of attorney time, the attorney fee, based on the fee schedule now mandated by the statute, compensates for paralegal time within an award for attorney time. The JCC correctly concluded the charges for paralegal time were compensated within the statutory fee schedule, and were not recoverable from Claimant as a cost." NOTE: In a footnote the court distinguished this case, where the claimant was paying a fee to his lawyer pursuant to a lump sum settlement, from that in Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008), where the claimant was entitled to recover fees from an employer/carrier.
First DCA affirms denial of workers' compensation claimant's motion to require employer's lawyer to seek court approval of any fees she seeks from her client. Alstatt v. Florida Dept. of Agriculture, 1 So.2d 1285 (Fla. 1st DCA 2009). Claimant in a worker's compensation case filed a motion to "require the attorney for the employer and servicing agent to seek approval by the judge of compensation claims of any requests for attorney’s fees made by the attorney to her clients." The judge denied the motion. The First DCA affirmed. F.S. 440.105(3)(c) "does not require approval of any attorney’s fee by the judge of compensation claims; rather, it merely makes it unlawful to receive a fee unless that fee has been approved. Because nothing in section 440.105(3)(c) (or in the rest of chapter 440) required the judge of compensation claims to take the action requested by claimant in his motion, the order denying that motion is affirmed. We find it unnecessary to decide whether the legislature intended section 440.105(3)(c) to apply to requests for payments made by attorneys representing employers, carriers and servicing agents, as well as to those made by attorneys representing claimants."
Eminent domain law does not provide for recovery of attorney's fees related to threatened condemnation action that was not filed or settled. Calhoun, Dreggors & Associates v. Volusia County, __ So.3d ___, 35 Fla.L.Weekly D77 (Fla. 5th DCA, No. 5D09-547, 12/31/2009), 2009 WL 5150087. County threatened to bring a condemnation action, but "abandoned the project before settling with the property owners or filing a condemnation action against them." Landowners sought reimbursement of their attorney's fees and costs. When County refused, Landowners sued. The court "agreed with [Landowners] that perhaps fees and costs should be compensable under these circumstances, but found that they were not compensable under present Florida law." (Emphasis by court.) The Fifth DCA affirmed, rather reluctantly. F.S. sec. 73.015(4) "expressly authorizes an award of attorney's fees and costs to landowners only when 'settlement is reached . . . prior to a [condemnation] lawsuit being filed.' Here, Appellants allege that no pre-suit settlement occurred. Thus, section 73.015(4), by its plain language, does not authorize a recovery in this case." Nor did F.S. sec. 73.091(1) authorize fees and costs. That statute "states in pertinent part that: 'The petitioner shall pay attorney's fees as provided in s. 73.092 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court . . .' (Emphasis added [by court]). . . . For purposes of awarding fees under this statute, this court has previously held that '[n]othing short of a petition which adheres to the statutory guidelines will commence condemnation proceedings under chapter 73." (Citation omitted.) The court expressed sympathy with appellants' position, but suggested that their policy arguments were better advanced to the Legislature.
Party that prevailed in breach of contract action can recover as damages its attorney's fees from related declaratory judgment action. Capitol Environmental Services, Inc. v. Earth Tech, Inc., __ So.3d ___, 34 Fla.L.Weekly D2467 (Fla. 1st DCA, No. 1D08-3016, 11/30/2009), 2009 WL 4110848. Plaintiff sued Defendant for breach of contract, alleging that Defendant to failed to comply with a provision requiring it to obtain insurance coverage for Plaintiff’s benefit and to list Plaintiff listed on the policy as a named insured. When someone allegedly hurt by a subcontractor's negligence sued Plaintiff and others, Plaintiff tendered defense of the suit to the insurance company. The insurer denied coverage. Plaintiff then filed a declaratory judgment action seeking to determine that it was covered. The insurer prevailed. After settling the negligence suit, Plaintiff sued Defendant for breach of contract and prevailed. As part of Plaintiff's damages, the jury included the amount of attorney's fees expended by Plaintiff in pursuing the unsuccessful declaratory judgment action. Defendant appealed. The First DCA affirmed. "We agree with [Plaintiff] that all of the damages awarded by the jury were causally related to and a reasonably foreseeable consequence of the breach of contract by [Defendant]. With respect to the attorney’s fees and costs incurred in the declaratory judgment action, the record establishes that but for the breach by [Defendant], [Plaintiff] would not have been required to pursue the declaratory judgment action in an effort to obtain the coverage that should have been provided under the contract. Moreover, because the declaratory judgment action filed by [Plaintiff] is a common response to an insurance carrier’s refusal to provide coverage . . . the action (and the resulting attorney’s fees and costs) could have been reasonably expected to flow from the breach. The fact that the declaratory judgment action was unsuccessful does not preclude recovery of the related fees and costs."
Former employer cannot recover attorney's fees from third party who knowingly aids and abets former employees' violations of restrictive covenant. Bauer v. Dilib, Inc., 16 So.3d 318 (Fla. 4th DCA 2009). Plaintiff, an employer, had confidentiality agreements containing restrictive covenants with two employees. The employees left Plaintiff's employ. Plaintiff was called by Competitor, who asked whether one of the employees was bound by a restrictive covenant. The content of Plaintiff's response was later disputed. Nevertheless, Competitor hired the employees. Plaintiff sued for an injunction to enforce the covenant and for damages for its alleged violation. Plaintiff pleaded entitlement to attorney's fees under F.S. 542.335(1)(k) (2007). The court granted Plaintiff's motion for fees against Competitor, commenting: "[T]he question is whether or not, under the statute of fair and equitable [sic], to hit her up for attorney fees as well." The Fourth DCA reversed. "To the extent the circuit court awarded attorney’s fees as a matter of equity, the court erred. 'Attorney’s fees cannot be awarded as a matter of equity.' Attorney’s Title Ins. Fund, Inc. v. Landa-Posada, 984 So.2d 641, 643 (Fla. 3d DCA 2008)." Moreover, the language of the statute did not support a fee award against someone who was not a party to the contract. The court quoted from another portion of section 542.335 and observed that, "If a plaintiff cannot enforce a restrictive covenant against a person who did not sign it, then it follows that a plaintiff cannot recover its attorney’s fees from that person either. " The appeals court certified conflict with Sun Group Enterprises, Inc. v. DeWitte, 890 So.2d 410 (Fla. 5th DCA 2004).
Personal representatives' successful defense of "Slayer Statute" challenge to a will justifies award of attorney's fees for defense. In re: Estate of Shefner, 2 So.2d 1076 (Fla. 3d DCA 2009). Decedent died of a self-inflicted gunshot wound. Decedent's will named his adult children Deborah and Frank as personal representatives. Decedent's other children, Linda and Susan, challenged the will alleging undue influence and that F.S. 732.802 (the 'Slayer Statute'), barred Deborah and Frank from benefiting because they assisted in the decedent’s suicide. Before trial, Linda and Susan voluntarily dismissed the Slayer Statute claim. Ultimately the court ruled in favor of Deborah and Frank. Deborah and Frank sought attorney's fees for defending the challenge under the Slayer Statute "because their defense effectuated the decedent’s testamentary intent." The court denied the motion. The Third DCA reversed the attorney's fee order. F.S. 733.106 controlled: "Subsection (3) states: 'Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.' An attorney may render services to an estate by: (1) bringing about an enhancement in value or an increase in estate assets, or (2) actions which establish and effectuate the decedent’s testamentary intent." The appeals court concluded that Deborah and Frank were entitled to attorney's fees and expenses for defending the Slayer Statute claim because, as a result of their defense, "the terms of the decedent’s will were upheld."
Trial court erred in granting summary judgment for law firm sued on fee-sharing agreement by disciplined attorney. Chastain v. Cunningham Law Group, P.A., 16 So.3d 203 (Fla. 2d DCA 2009). See discussion in “Disciplinary Proceedings” section.
Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees. Milanick v. Osborne, 6 So.3d 729 (Fla. 5th DCA 2009). See discussion in “Public Official Ethics and Public Records” section.
Trial court may award attorney's fees in lis pendens action even though no bond has been posted. McMillan/Miami, LLC v. Krystal Capital Managers, LLC, 1 So.2d 312 (Fla. 3d DCA 2009). A trial court entered an agreed order dissolving a lis pendens after Krystal Capital Managers, LLC ("Krystal"), which had filed a complaint and a notice of lis pendens against McMillian/Miami, LLC ("McMillen"), voluntarily dismissed its complaint. The court denied McMillen's motion for attorney's fees, reasoning that it had to deny fees where no lis pendens bond had been posted. The Third DCA reversed, concluding that the posting of a bond is not a prerequieste to an entitlement to an attorney’s fee award under F.S. 48.23(3). “[T]he filing of the lis pendens immediately created potential damages upon McMillan/Miami. McMillan/Miami had to retain counsel and file a motion to dissolve the lis pendens to allow the sale to proceed. The fact that the trial court entered an agreed order to dissolve the lis pendens and the plaintiff subsequently dismissed its complaint with prejudice before it was required to post a bond, does not preclude the recovery of attorney’s fees."
Denying motion for appellate attorney's fees, First DCA reminds lawyers of pleading requirements for such motions. Welch v. Welch, 22 So.3d 153 (Fla. 1st DCA 2009). Former Wife appealed a final judgment of divorce. The First DCA affirmed, but denied Former Wife’s motion for appellate attorney's fees. The court explained: "[W]e take this opportunity to remind the bar about the long-standing and well-established pleading requirements for motions for attorney’s fees and costs. Florida Rule of Appellate Procedure 9.400(b) states that a motion for attorney’s fees 'shall state the grounds on which recovery is sought.'" Former Wife's motion did not satisfy this requirement. "The former wife’s motion for attorney’s fees and costs alleges that the financial affidavits will show that the former husband has the superior financial ability to pay the former wife’s fees and costs; the motion requests a provisional order granting appellate fees and costs. The motion does not mention section 61.16, Florida Statutes (2007), which is the statute specifically governing family law attorney’s fees, suit money, and costs, nor does it cite any other legal basis for the claim. [United Services Automobile Ass'n v.] Phillips [775 So.2d 921 (Fla. 2000)] and its progeny compel us to conclude that the motion for appellate fees and costs is facially insufficient and must be denied."
First DCA affirms trial court's rejection of foreclosing lender's claim under note for attorney's fees equal to 10% of principal sum due. Coastal Community Bank v. Jones, 23 So.3d 757 (Fla. 1st DCA 2009). Lender foreclosed on a mortgage note providing that "reasonable attorneys' fees shall be construed to mean 10% of the principal sum named in this note." Borrowers defaulted. The court refused Lender's claim for a 10% attorneys' fee, terming it "unconscionable." Lender appealed. The First DCA affirmed, although it avoided reaching the question of whether the fee sought was unreasonable or unjust. Rather, the court examined the language of F.S. 687.06 and focused on whether Lender proved entitlement to a fee. It had not; Lender failed to present any evidence regarding its obligation to pay attorneys' fees. The statute "limits a trial court’s discretion to review the reasonableness of certain attorney’s fees sought by the mortgagee, [but] it does not prevent the court from inquiring after evidence that the fees allowed by the contract do not exceed those actually incurred by the beneficiary of the contractual provision or, at the least, do not exceed that amount in such magnitude as to render an automatic award inequitable."
Lawyer appointed from "Involuntary Appointment List" to represent defendant in complex RICO prosecution should have been permitted to withdraw. Hagopian v. Justice Administrative Commission, 18 So.3d 625 (Fla. 2d DCA 2009). See discussion under “Withdrawal” section.
Court correctly declined to add to fee award time that parties allegedly spent working on their own case as "paralegals." Lewis v. Nical of Palm Beach, Inc., __ So.3d ___, 34 Fla.L.Weekly D1477 (Fla. 4th DCA, No. 4D07-3721, 7/22/2009), 2009 WL 2168815. Parties to a long-running series of suits appealed the award of attorney's fees. The Appellants contended that the court erred in not including in the fee award the "value of paralegal labor in preparing for hearings and related proceedings. The paralegals in question are not regular employees or staff of their able counsel but instead none other than [the Appellants] themselves." The Fourth DCA affirmed. "The inherent possibility for mischief in deeming the client a paralegal of the representing attorney is apparent enough to cast a dense shadow over even the mere theoretical prospect of the argument they make. In this instance we note the utter absence of any showing that the labor of the client was required by the lawyer or had the effect of reducing the fee claimed by the lawyer."
Court erred by including certain "overhead" items as taxable costs. The Landmark Winter Park, LLC v. Colman, __ So.3d ___, 35 Fla.L.Weekly D102 (Fla. 5th DCA, No. 5D08-3893, 12/31/2009), 2009 WL 5152157. A final judgment for Buyers against Seller awarded attorney's fees, paralegal's fees, and costs. The Fifth DCA affirmed the awards of fees, but reversed and remanded regarding taxable costs. Items such as postage, online research, facsimile charges, courier services, photocopies, scanning documents, trial supplies, parking, overtime paralegal work, after-hours heating and air conditioning, mileage, meals and long distance phone calls are not taxable costs.
Justice Administrative Commission not required to pay fees of attorneys appointed to represent missing putative fathers in termination of parental rights cases. Justice Administrative Comm'n v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009). Two lawyers were appointed to represent putative fathers in termination of parental rights ("TPR") cases. The whereabouts of the putative fathers could not be determined. At the conclusion of the TPR proceedings, the lawyers submitted their bills to the Justice Administrative Commission for payment. The Commission rejected the bills because it "could not determine that these fathers were indigent." Upon petition by the lawyers, the trial court ordered the Commission to pay. The Commission petitioned the Third DCA for a writ of certiorari, which was granted. F.S. 39.807 authorizes appointment of counsel for indigent parents in these types of proceedings, but "confers no authority to appoint counsel for parents who are not indigent." Because neither of the fathers in the lawyers' cases appeared at any stage of the proceedings, no determination of indigency was possible.
Justice Administrative Commission not responsible for paying fees of lawyer appointed to represent indigent grandmother in dependency proceeding. Justice Administrative Commission v. Grover, 12 So.3d 1256 (Fla. 1st DCA 2009). In a dependency case the court appointed counsel to represent an indigent grandmother. The court ordered the Justice Administrative Commission ("JAC") to pay the lawyer's fees. The First DCA quashed the order. Although the grandmother was "undoubtedly entitled to participate in the dependency proceeding concerning her minor grandchildren," the appellate court concluded that the grandmother "was not entitled to court-appointed representation in this case, as she did not fall under the category of persons who qualify for court-appointed counsel at public expense. See § 27.40(1), Fla. Stat. (2008)." Consequently, the lower court did not have statutory authority to enter the order requiring the JAC to pay her lawyer's fees. NOTE: See also Justice Administrative Commission v. Stanford, 16 So.3d 1003 (Fla. 1st DCA 2009).
Court should not have ordered Justice Administrative Commission to pay fees of mother's court-appointed private counsel in termination of parental rights proceeding. Justice Administrative Comm'n v. Harp, __ So.3d ___, 35 Fla.L.Weekly D81 (Fla. 5th DCA, No. 5D09-3058, 12/31/2009), 2009 WL 5150300. Lawyer was appointed to represent Mother in a dependency case. While the case was pending Mother voluntarily surrendered her parental rights. A termination of parental rights action was filed, and Lawyer was appointed to represent Mother in that case. After conclusion of the termination case, Lawyer petitioned the court for attorney's fees. The Justice Administrative Commission ("JAC") "objected, arguing that because the mother voluntarily executed a written surrender of parental rights, she had no right to court-appointed counsel." The court ordered JAC to pay the fees. The Fifth DCA reversed. F.S. sec. 39.807(1), which authorizes appointment of counsel in termination proceedings, contains an exception that provides: "This subsection does not apply to any parent who has voluntarily executed a written surrender of the child and consent to the entry of a court order therefor."
Cases regarding application of Fla.R.Civ.P. 1.525 included: Florida Supreme Court clarifies that Fla.R.Civ.P. 1.525 time limit does not apply when final judgment has determined entitlement to attorney’s fees but reserved jurisdiction to determine amount. AmerUs Life Insurance Co. v. Lait, 2 So.3d 203 (Fla. 2009). A final judgment for Plaintiff AmerUs Life contained a determination that Defendant Lait was “liable to the plaintiff” for attorney’s fees. Eight months later Plaintiff filed a motion seeking entry of an “Amended Final Judgment” containing an attorney’s fee award. The court entered the amended judgment. Defendant moved to vacate the judgment “based on the failure of [Plaintiff] to comply with the [30-day] time requirements specified in [Fla.R.Civ.P.] 1.525.” Plaintiff appealed. The Fifth DCA affirmed, relying on Saia Motor Freight Line, Inc. v. Reid, 930 So.3d 598 (Fla. 2006). AmerUs Life Ins. Co. v. Lait, 967 So.2d 340 (Fla. 5th DCA 2007). Plaintiff sought Florida Supreme Court review, asserting that the Fifth DCA’s decision conflicted with a decision of the Third DCA. The Supreme Court quashed the Fifth DCA’s decision, holding that “the thirty-day time requirement under rule 1.525 does not apply when the trial court has already determined entitlement to attorneys’ fees and costs, and only reserves jurisdiction to determine the amount.” The Court explained: “Because the facts of this case and the facts of Saia are distinguishable, both the trial court and the Fifth District erred in relying on Saia to conclude that [Plaintiff] failed to timely file the motion for attorneys’ fees and costs as required by rule 1.525. In Saia, the trial court’s final judgment indicated that it was reserving jurisdiction to determine entitlement to costs and attorneys’ fees. In this case, the trial court determined in its final judgment that [Plaintiff] was entitled to court costs and attorneys’ fees, but reserved jurisdiction to determine the amount. AmerUs, 967 So.2d at 341. In Saia, we held that the thirty-day time requirement under rule 1.525 applies when the trial court reserves jurisdiction to determine entitlement to attorneys’ fees and costs; we did not address the situation where entitlement has been determined and the only issue remaining is the amount of the fees and costs.”
Fee cases concerning the “prevailing party” standard included: Trial court erred in awarding prevailing party fees to defendant because a "significant part" of plaintiff's claim was denied. Hingson v. MMI of Florida, Inc., 8 So.3d 398 (Fla. 2d DCA 2009). Hingson sued her former Employers for unpaid commissions or bonuses allegedly due her. Employers asserted 4 affirmative defenses. The court entered judgment for Hingson, "noting that it had also ruled in Hingson's favor on the Employers' affirmative defenses." The court awarded attorney's fees to Hingson under F.S. 448.08 (providing for attorney's fees to successful litigants in claims for unpaid wages). The court also awarded attorney's fees to Employers, finding that they "prevailed on significant issues in the litigation." The court stated at the fee hearing "that Hingson 'was asking for several hundred thousand dollars, maybe $200,000, and actually got a judgment for $31,000 plus the interest' and that 'a significant part of the claim was denied.'" The Second DCA reversed the fee award to Employers. The trial court erred in its application of Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005). "Employers denied all liability for any unpaid commissions and raised four affirmative defenses. The Employers did not file a counterclaim. Hingson brought her claim for unpaid commissions, albeit under alternative theories of breach of the employment agreement and unjust enrichment. The trial court specifically found that the Employers breached the employment agreement. The court also ruled in Hingson's favor on the Employers' affirmative defenses. Although Hingson did not recover the total amount that she sought, she prevailed as to her claim that the Employers breached the agreement and were liable to her for damages, and the Employers did not prevail in any affirmative relief. Based on this record, we conclude that the trial court erred in its application of Lashkajani to award attorney's fees to the Employers and in determining that the Employers were the prevailing parties on the significant issues in the breach of agreement claim."
Fourth DCA applies "limited exception" to Stockman v. Downs requirement that demand for attorney's fees must be made in a leading. Save On Cleaners of Pembroke II Inc. v. Verde Pines City Center Plaza LLC, 14 So.3d 295 (Fla. 4th DCA 2009). Landlord sued Tenant for breach of a commercial lease that provided for attorney's fees to the prevailing party. Tenant did not assert a claim for fees in a pleading, although "[b]efore trial tenant filed several documents claiming attorneys fees as the putative prevailing party. Later, although Tenant had ceased pursuing the motion, it filed memoranda with the court arguing its claim for fees. Landlord did not object to Tenant's claim for fees. The court ruled for Tenant and then found Tenant was entitled to attorney's fees. Landlord moved for rehearing, arguing that under Stockman v. Downs, 573 So.2d 835 (Fla. 1991), Tenant was not entitled to fees because it failed to demand them in a pleading. The court then agreed and struck attorney's fees from the final judgment. The Fourth DCA reversed. Stockman "created a rule of procedure with an exception." (Footnote omitted.) The "limited exception" under Stockman provides: "'Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.'" (Emphasis supplied by Fourth DCA; citations omitted.) The court noted that "[p]lainly the purpose of the Stockman rule is notice to the party having to pay such fees. But if an adversary attempts to claim such fees without a pleading, Stockman pointedly requires the party who would oppose the fees to make a formal objection." (Footnote omitted.) In the instant case, Landlord never objected to Tenant's claim for fees until after the original judgment had been entered.
Court did not err in awarding attorney's fees to party that did not plead entitlement to fees incurred during court-ordered, nonbinding arbitration. Cooper v. Marriott International, Inc., 16 So.3d 156 (Fla. 4th DCA 2009). Plaintiff filed a negligence suit against Defendants. The court ordered the matter to non-binding arbitration under F.S. 44.103 (2004). Plaintiff rejected the arbitrator's decision and went to trial, where the jury returned a verdict for Defendants. After the court entered final judgment for Defendants, Defendants moved to tax costs and fees against Plaintiff for not accepting the arbitrator's decision. The court granted the motion and awarded attorney's fees to Defendants. The Fourth DCA affirmed. Plaintiff argued that Stockman v. Downs, 573 So.2d 835 (Fla. 1991), required Defendants to plead entitlement to attorney's fee and that their failure to do so meant that the trial court erred in awarding fees. The appellate court disagreed, observing: "Our supreme court and this court have enforced Stockman’s 'no pleading, no fees' rule in situations where the entitlement to fees and costs existed from the outset based upon a contract or statute which was the subject of the underlying claim or defense. . . . However, the supreme court and the Second District have created exceptions to Stockman where the entitlement to fees and costs arose during the suit based upon some event which is supplemental to the underlying action." (Emphasis in original.)
Plaintiffs who chose not to pursue case when foreign arbitration was ordered must pay prevailing party fees to defendants. Frazier v. Dreyfuss, 14 So.3d 1183 (Fla. 4th DCA 2009). Plaintiffs sued Defendant over a real estate deal. Defendant moved to compel arbitration based on a contract provision requiring arbitration in Costa Rica. Plaintiffs not chose to pursue the arbitration. The court granted Defendant's motion to dismiss the suit and awarded prevailing party attorneys' fees to Defendant under F.S. sec. 517.211(6) (2007). Plaintiffs appealed, arguing "that [Defendant] was not the prevailing party for purposes of a fee award. They assert that they merely made a financial decision not to pursue arbitration in Costa Rica and, in essence, abandoned their claims before either party was determined to have prevailed. The [defendant] asserts that he was entitled to fees because he prevailed when he obtained the dismissal." The Fourth DCA affirmed on the basis of Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006).
Insurance cases involving fee issues included: Trial court erred in awarding "prevailing party" fees to party who lost "sole issue" on appeal. United Automobile Ins. Co. v. Lopez, 7 So.3d 583 (Fla. 3d DCA 2009). Insured sued Insurer seeking to recover more than $6000 allegedly owed under the personal injury protection provision of an auto policy. Insurer denied liability and alleged affirmative defenses of misrepresentation on the application and fraudulent bills. The court granted summary judgment for Insured, despite Insurer's "express protestations" that "neither [Insured]'s motion nor the record refuted [Insurer]'s affirmative defenses." The appellate panel of the circuit court reversed the judgment for Insured. Despite this, the court awarded attorney's fees to Insured. The Third DCA reversed the fee award. It was based on F.S. 627.428(1), which authorizes fee awards "in the event of an appeal in which the insured or beneficiary prevails." In the instant case, Insured "was not the prevailing party as to what the circuit court appellate division itself recognizes, as well as the law, was 'the sole' issue on appeal." (Emphasis by court.) The appeals court pointed out that the Florida Supreme Court's decision in Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252 (Fla. 2006), "removed all doubt concerning whether there is any elasticity in the plain language of the statute." Furthermore, the court noted, its own post-Brass & Singer case law "has reiterated the command of our high court that the word 'prevails' means 'prevails.'" (Footnote omitted.)
First DCA rules that expert testimony can support imposition of multiplier in attorney's fee award in PIP action. Massie v. Progressive Express Ins. Co., __ So.3d ___, 34 Fla.L.Weekly D2364 (Fla. 1st DCA, No. 1D09-1558, 11/17/2009), 2009 WL 3817929. The county court in a personal injury protection ("PIP") action awarded a contingency fee multiplier in a claim for attorney's fees. The Circuit Court "on direct appeal reviewed and reversed the trial judge’s order awarding a multiplier because Petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier under Sun Bank of Ocala v. Ford, 564 So.2d 1078 (Fla. 1990)." The First DCA quashed the order. Petitioner’s testimony was not required where she had produced relevant expert testimony. The First DCA "concluded in McCarthy Brothers Co. v. Tilbury Construction Inc., 849 So.2d 7, 10 (Fla. 1st DCA 2003), that expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supports a multiplier’s imposition."
Fee award against insurer is upheld where insured brought suit to force insurer to arbitrate in accordance with policy provisions. Pawtucket Mutual Ins. Co. v. Manganelli, 3 So.2d 421 (Fla. 4th DCA 2009). Insured filed a claim with his Insurer under the policy's uninsured motorist coverage. The policy included an arbitration clause providing that, absent agreement of both parties, the arbitration would take place in the county in which the insured "lives." Insured demanded to arbitrate in Palm Beach County. Insurer refused, asserting that Insured lived in New Hampshire (where Insured had a residence and where the policy was issued). Insured filed a declaratory judgment action, and the court ruled that he "lived" in Palm Beach County. Insurer did not appeal. After the arbitration Insured moved for attorney's fees and costs pursuant to F.S. 627.428 and 627.727(8), contending that "his suit against Pawtucket was only necessary because Pawtucket effectively denied coverage by refusing to arbitrate in Palm Beach County." The court granted Insured's motion for fees and costs, "[r]elying primarily on case law in which the courts have found that attorney’s fees were properly awarded where the insurer did not actually deny coverage but required something of the insurer that could place his coverage in jeopardy." The Fourth DCA affirmed.
Whether suit is filed before or after insurer invokes right to appraisal does not determine whether insured may recover attorney's fees. Lewis v. Universal Property and Casualty Co., 13 So.3d 1079 (Fla 4th DCA 2009). Insureds filed a claim for hurricane damage to their home. Insurer offered what Insureds considered an unacceptable amount, informed Insureds of their right to mediation and appraisal processes under the policy, and advised that it was "closing its file." Mediation was unsuccessful. Insureds retained Lawyer, who wrote Insurer asserting a breach of contract claim. Insurer invoked its right to an appraisal, while reserving its right to deny the claim. Shortly thereafter Insureds filed suit. As a result of the appraisal process Insured paid a higher amount on the claim. Insureds sought prevailing party attorney's fees under F.S. sec. 627.428. Insurer defended by arguing that "fees were not properly awarded as it had never denied coverage; rather, there was merely a dispute as to the amount of the loss, and it had invoked the policy’s appraisal process prior to the insureds’ filing suit." The court denied the fee motion. The Fourth DCA reversed. When the insurer invokes the appraisal process is not determinative; "rather, the right to fees turns upon whether the filing of the suit served a legitimate purpose." The court concluded that Insureds' suit had served a legitimate purpose, thus entitling them to fees. "Only after the insureds’ counsel sent the letter and draft complaint did the insurer invoke its right to an appraisal . . . The insureds then filed suit, stating a claim for breach of contract and seeking a declaratory judgment regarding coverage. These circumstances are not indicative of an insured who 'raced to the courthouse' or who filed suit simply for the purpose of securing a fee award."
In insurance cases Fifth DCA not authorized to award attorney's fees to insured who unsuccessfully petitions for certiorari, regardless of whether insured ultimately prevails. Grider-Garcia v. State Farm Mutual Auto. Ins. Co., 14 So.3d 1120 (Fla. 5th DCA 2009). Insured petitioned for certiorari review of non-final orders. The Fifth DCA denied the petitions. The court then addressed the issue of awarding provisional attorney's fees for Insured in the event that Insured ultimately prevailed at trial, and determined that it was not authorized to enter the award. "[T]his Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari. Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins." (Emphasis in original.)
Fee cases applying F.S. 57.105 included: Full evidentiary hearing required before imposing F.S. 57.105 fees against counsel; but costs may not be imposed. Ferdie v. Isaacson, 8 So.3d 1246 (Fla. 4th DCA 2009). A court imposed attorney's fees and costs equally against Former Client and Former Client's Law Firm under F.S. sec. 57.105. Law Firm appealed. The Fourth DCA reversed the fee award because the trial court "did not conduct an evidentiary hearing or otherwise make an express finding that the law firm was not acting in good faith." The court also reversed the award of costs against Law Firm "because section 57.105 does not permit it." The statute "provides that 'the court shall award a reasonable attorney’s fee to be paid to the prevailing party,' but makes no mention of costs.” (Emphasis by court.)
Court's inherent authority to award attorney's fees under "inequitable conduct doctrine" remains intact despite amendment of F.S. 57.105. Rosenberg v. Gaballa, 1 So.2d 1149 (Fla. 4th DCA 2009). A court assessed attorney's fees against Lawyer for allegedly engaging in "bad faith conduct." Lawyer contended that he was "merely acting as a zealous advocate for his clients," but the court did not find this assertion credible. The fee award against Lawyer was entered pursuant to the court's inherent authority under the "inequitable conduct doctrine" set forth in Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). Lawyer appealed, arguing that the doctrine was rendered obsolete when F.S. 57.105 was amended. The Fourth DCA disagreed and affirmed.
Although criticizing lawyer's conduct as "reprehensible," First DCA reverses F.S. 57.105 attorney's fees sanction entered too late. Campbell v. Dept. of Business and Professional Regulation, 9 So.3d 59 (Fla. 1st DCA2009). See discussion in “Professionalism” section.
Letter to opposing counsel threatening to seek F.S. 57.105 fees does not comply with statute's notice requirement. Anchor Towing, Inc. v. Fla. Dept. of Transportation, 10 So.3d 670 (Fla. 3d DCA 2009). Two towing companies, Anchor and Sunshine, made competing bids for a Florida Department of Transportation contract. After administrative proceedings, the administrative law judge ("ALJ") awarded attorney's fees to Sunshine under F.S. 57.105(4), which provides: "A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." In July 2004 Sunshine's lawyer sent a letter to Anchor's counsel threatening to seek attorney's fees under section 57.105 if certain demands were not met. In November 2004 the final order rejecting Anchor's bid and awarding the contract to Sunshine was entered. Nine days later Sunshine filed its motion for attorney's fees and costs under section 57.105. The ALJ granted Sunshine's motion, "finding that Sunshine's July letter was sufficient to meet the mandatory notice requirement of section 57.105(4)." Anchor appealed, contending that Sunshine had not met the mandatory notice requirements of the statute. The appeals court agreed and reversed. "The letter that Sunshine’s counsel sent to Anchor’s counsel threatening to seek attorney’s fees does not meet the mandatory notice requirements of section 57.105(4). The letter sent to opposing counsel is not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with the court. . . . Filing the motion with the court after the proceedings concluded also does not comply with the statute, as Anchor did not then have the statutorily required twenty-one days in which to withdraw the objected to claims."
First DCA imposes appellate attorney's fees against party and her lawyer as sanction under F.S. 57.105. Long v. AvMed, 14 So.3d 1264 (Fla. 1st DCA 2009). Plaintiff sued her HMO seeking injunctive relief and attorney's fees due to HMO's alleged refusal to provide coverage for a certain treatment. HMO, however, had agreed to pay for the treatment before Plaintiff filed suit. The court dismissed Plaintiff's claims, emphasizing that "the request for injunctive relief was merely a pretext, and that the true purpose of the suit was for [Plaintiff] to collect attorney's fees." Despite this, Plaintiff appealed. The First DCA stated: "Her persistence is difficult to understand in light of this record. Obviously, we affirm." Additionally, the appeals court imposed appellate attorney's fees in an equal amount against Plaintiff and her lawyer as a sanction under F.S. 57.105(1). The court stated that the suit had been brought as a "pretext" and that Plaintiff's argument on appeal "lacks legal and factual merit." The court stated that [u]nfortunately, refusing to acknowledge unfavorable facts was not an option [Plaintiff] or her attorney possessed. This conduct is sanctionable as it violates an appellate counsel’s 'ethical obligation to present [] the facts [] accurately and forthrightly.' Boca-Burger, Inc. [v. Forum], 912 So.2d [561 (Fla. 2005)] at 571[.]" In a footnote, the court noted that the trial court had "rebuked [Plaintiff]’s counsel, stating the 'suit was a jump-the-gun suit, a gotcha suit. After you heard that they were going to pay for [the treatment], you rushed the suit, in effect, so that you could try to get your attorney’s fees out of it.'"
Court may individually assess personal representative for attorney's fees resulting from frivolous litigation, even absent bad faith finding. Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009). A court’s order made the personal representative of an estate personally responsible for the estate's attorneys' fees that were incurred in litigation with the estate's prior lawyer. The order also required the personal representative to return fees that she paid to herself and the estate's current lawyer. The personal representative appealed. The Fourth DCA affirmed to the extent that the court made findings that the litigation resulting in the attorneys' fees was frivolous. The personal representative argued on appeal that only a finding of her bad faith, not merely a finding that the litigation was frivolous, could sustain an order making her individually responsible for the fees. The appellate court rejected this contention. "We disagree that only a showing of bad faith permits an individual assessment of fees. Engaging in essentially frivolous litigation would justify a court in assessing fees against the personal representative."
Fee cases involving fees in connection with offers of judgment included: Offer of judgment rules for multiple parties must be strictly complied with even if parties' claims are "indistinguishable." Cano v. Hyundai Motor America, Inc., 8 So.3d 408 (Fla. 4th DCA 2009. Husband and Wife sued Hyundai for alleged defects in a car that they purchased. Hyundai offered the plaintiffs a joint proposal for settlement pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. The proposal did not specify the amount and terms attributable to each party. The case went to trial, Husband was dropped as a plaintiff, and the jury found for Hyundai. The court granted Hyundai's motion for attorney's fees. Plaintiff moved for rehearing and reconsideration, arguing that the "proposed settlement failed to meet the requirements of the statute and the rule. The court denied the motion, "stating that although the proposal failed to specify the amount and terms attributable to each plaintiff, the proposal was nevertheless valid because the [plaintiffs'] claims were indistinguishable." The Fourth DCA reversed. The offer of judgment statute and rule are strictly construed. Rule 1.442(c)(e) requires that a "proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party." Hyundai's offer failed to satisfy this requirement. "[A]t the time the Hyundai proposal was given, there were two plaintiffs, [Wife] and [Husband]. The proposal, however, failed to specify the amount attributable to each party. Given the bright line application of rule 1.442, we reverse the award of attorney’s fees and costs against [Wife] because the joint proposal failed to meet rule 1.442’s strict requirement of specifying the amount attributable to each party. Although the claims of the [plaintiffs] were indistinguishable, it does not change the outcome."
Persons who are not named as parties in litigation nevertheless may be "parties" for purpose of having attorney's fees awarded against them. Abu-Ghazaleh v. Chaul, __ So.3d ___, 34 Fla.L.Weekly D2496 (Fla. 3d DCA, Nos. 3D07-3128, 3D07-3130, 12/2/2009), 2009 WL 4283085. Appellants (Defendants) sought an award of attorney’s fees against two Appellees who were not parties to the suit, under the civil theft statute and the offer of judgment statute. Appellees successfully defended the motion on the ground that they were not named parties in the suit. The Third DCA reversed. The Appellees’ involvement in the litigation rose to the level of "party" status for purposes of a fee award. "This Court has previously stated that a 'party' 'is defined under Florida law as any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.'" (Citation omitted.) Appellees had an agreement with the named parties that gave Appellees a great degree of involvement in and control over the litigation. "[Appellees] clearly have risen to level of a party." Appellees had to approve counsel for the party plaintiffs, they paid for the litigation costs, and they had the final say on any settlement agreements. In return, Appellees were to get 18.33% of any amount awarded to the plaintiffs.
Per Fourth DCA, general proposal for settlement applying to case that includes both claims for damages and other claims is not grounds for attorney's fees award under F.S. 768.79. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Ass'n, Inc., 22 So.3d 140 (Fla. 4th DCA 2009). Plaintiff sued Defendant seeking both injunctive relief and money damages. Final judgment was entered for Defendant. Defendant moved for attorney's fees under F.S. sec. 768.79 and Fla.R.Civ.P. 1.442, based on 3 proposals for settlement it made. One proposal offered payment of $1001.00 "as a complete and final resolution and settlement of all claims asserted" by Plaintiff against Defendant in the case. The other 2 proposals used similar language. The court found that the suit was "an action for damages" as required by F.S. sec. 768.79, and entered an award of attorney's fees against Plaintiff. The Fourth DCA reversed. The court concluded that a general offer applying to an entire case that includes both claims for damages and other claims could not be binding upon the unsuccessful party. The offer of judgment statute applies only to civil actions "for damages." As a statute in derogation of the common law rule that each party pays its own attorney's fees, the statute must be strictly construed. "[Because the proposals for settlement addressed a complaint that included non-damages claims, they do not comply with the statute, and we find them invalid and reverse the trial court’s order awarding fees."
Settlement proposal by one party conditioned on release of claims against offeror and another party was not "joint proposal" under offer of judgment statute. Alioto-Alexander v. Toll Bros., Inc., 12 So.3d 915 (Fla. 4th DCA 2009). Plaintiff sued Employer and one of its Employees, alleging that Employer was vicariously liable for Employee's actions. Employer served Plaintiff with a $5000 proposal for settlement pursuant to F.S. 768.79. The proposal was made by Employer but conditioned on Plaintiff releasing the claims against both Employer and Employee. The proposal did not apportion the $5000 offer. Employer and Employee prevailed in the suit and moved for attorney's fees against Plaintiff. The court awarded fees. The Fourth DCA affirmed, rejecting Plaintiff’s contention that the proposal was a "joint proposal" that did not comply with the statute because it was not apportioned among Employer and Employee. "By its own terms, the proposal for settlement was made by [Employer] and [Employer] alone was offering to pay the sum of $5,000. The dismissal of the entire suit, including the claims against [Employee], was simply a condition of the proposal and did not serve to transform the proposal for settlement into one made by multiple offerors." NOTE: See also Eastern Atlantic Realty and Investment, Inc. v. GSOMR LLC, 14 So.3d 1215 (Fla. 3d DCA 2009).
Court erred in awarding fees pursuant to proposal for settlement that was rejected before plaintiff pleaded or proved additional damages not contemplated when proposal was made. Segundo v. Reid, 20 So.3d 933 (Fla. 3d DCA 2009). Plaintiff sued Defendant after an auto accident for back and new injuries. In November 2005 Plaintiff served on Defendant a proposal for settlement pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. Defendant rejected the proposal, and Plaintiff rejected Defendant's counter-proposal. Months later Plaintiff's counsel sought a continuance in order to determine whether Plaintiff’s shoulder problem was caused by the accident. Upon receipt of a physician's report the shoulder problem was added to the damages claimed. Plaintiff did not, however, serve a new proposal for settlement. A verdict for Plaintiff was above the 25% threshold under the proposal for judgment statute and rule. Plaintiff moved for attorney's fees based on Defendant's refusal to accept Plaintiff's November 2005 proposal. The court granted the motion. The Third DCA reversed. "In determining the reasonableness of an attorney’s fees award under section 768.79(7)(b), the trial court is required to consider not only the specific factors set forth in subsection (7)(b), but 'all other relevant criteria.' § 768.79(7)(b). Rule 1.442(h)(2) has a similar provision." In reversing the award the court stated: "A review of the jury’s verdict demonstrates that if the damages awarded to the plaintiff for the shoulder injury are not considered, the judgment recovered would not be at least twenty-five percent greater than the offer, § 768.79(1), and the plaintiff would not be entitled to an award of attorney’s fees under section 768.79 or rule 1.442. Thus, to require the defendant to pay attorney’s fees as a sanction for ‘unreasonably’ rejecting the plaintiff’s proposal for settlement would penalize the defendant for damages not pled nor proven until after the proposal for settlement was rejected and permit the plaintiff to benefit from the changing nature of his claim after the proposal for settlement expired." (Footnote omitted; emphasis by court).
INEFFECTIVE ASSISTANCE AND RIGHT TO COUNSEL Law requiring counties to fund Regional Conflict Counsel offices held unconstitutional. Lewis v. Leon County, 15 So.3d 777 (Fla. 1st DCA 2009). Twenty-six Florida counties filed suit seeking a declaratory judgment that Section 19, Chapter 2007-62, Laws of Florida, was unconstitutional under both Art. V, Sec. 14, and Art. VII, Sec. 18(a), of the Florida Constitution. The law established the Office of Criminal and Civil Regional Counsel and essentially required counties, rather than the state, to pay "certain constitutionally defined costs to house the offices of both the public defender and Regional Conflict Counsel." The court granted summary judgment for the counties. The First DCA affirmed. "We approve the trial court’s decision and hold that Section 19 of Chapter 2007-62, Laws of Florida, unconstitutionally shifts the funding responsibility for certain costs of court-appointed counsel from the state to the counties [in contravention of Art. V, Sec. 14]. We hold the act unconstitutional also because the Legislature failed to make the constitutionally required determination of an important state interest [as required by Art. VII, Sec. 18(a)]."
Florida Supreme Court addresses claim that defense counsel was ineffective for failing to spend enough time preparing defendant to testify. Beasley v. State, 18 So.3d 473 (Fla. 2009). Defendant was convicted of murder and sentenced to death. In his motion for postconviction relief Defendant contended that counsel was ineffective because counsel "interfered with his right to testify by failing to adequately prepare him for examination, which caused him to waive his right to testify in his own defense." Defendant appealed denial of his motion. The Florida Supreme Court affirmed. "While defense counsel has an obligation to inform the defendant of the right to testify, see Morris [v. State], 931 So.2d [821] at 833 [(Fla. 2006)], there is no bright-line rule concerning the minimum amount of time that is necessary to constitute adequate preparation of a defendant to testify during trial[.]" Quoting from United States v. Teague, 953 F.2d 1525, 1533 (11th Cir. 1992), the Court stated that "the essence of the claim is that the action or inaction of the attorney deprived the defendant of the ability to choose whether or not to testify in his own behalf." In the instant case, Defendant did not allege that counsel failed to inform him of his right to testify. Rather, "[t]he attack here focuses exclusively on the quantity of time counsel expended to inform him of his right to testify and to prepare him for examination. Thus, to prevail on a claim that ineffectiveness here interfered with his right to testify, [Defendant] must demonstrate that trial counsel's preparation for his testimony was deficient such that it deprived [Defendant] of the ability to choose whether to testify on his own behalf and that this deficiency prejudiced [Defendant]." Defendant failed to make this showing.
Florida Supreme Court rules that conflict over mitigation strategy between capital defendant's counsel was not per se ineffective assistance. Chavez v. State, 12 So.3d 199 (Fla. 2009). Defendant was convicted of murder and sentenced to death. His postconviction motion alleging ineffective assistance of counsel was denied. The Florida Supreme Court affirmed. Defendant alleged that trial counsel were per se ineffective under United States v. Cronic, 466 U.S. 648 (1984), because there was a conflict between them regarding the proper mitigation strategy that affected the adequacy of his representation. The Court disagreed, stating that Defendant's "specific allegation that lead counsel‘s strategy created an absolute failure of the adversarial system does not qualify under the Cronic exception to Strickland [v. Washington, 466 U.S. 668 (1984)]. Despite [Defendant]'s earnest attempt to portray lead counsel as a one-man threat to the adversarial system, none of the cases advanced by [Defendant] support this interpretation of the per se rule because each decision is either distinguishable or inapplicable to these circumstances." The representation had subjected the prosecution's case to "meaningful adversarial testing." The Court also rejected Defendant's claim that the conflict between counsel regarding mitigation strategy was per se ineffective assistance as a conflict of interest. "Conflict of interest generally occurs when an attorney actively represents conflicting interests, not when a defense team considers conflicting strategic approaches. "
Neither trial counsel's personal dislike of client nor client's filing of Bar complaint resulted in ineffective assistance. Hutchinson v. State, 17 So.3d 696 (Fla. 2009). Convicted Defendant facing a death sentence moved for postconviction relief under Fla.R.Crim.P. 3.851. The court denied the petition, and Defendant appealed. The Florida Supreme Court affirmed. Defendant contended that the trial court "erred in summarily denying his claim that he was not represented by conflict-free counsel based on trial counsel's personal dislike of him and based on the fact that [Defendant] filed a Bar complaint against trial counsel. The Supreme Court pointed out that "[b]oth aspects of [Defendant]'s claim have been addressed and decided adversely to his position." Although the Constitution guarantees counsel to an accused, it does not guarantee a "meaningful relationship" between the two. "[T]he filing of a Bar complaint does not per se constitute a conflict of interest. See Connor v. State, 979 So.2d 852, 861 (Fla. 2007)." The Court rejected Defendant's claim that the filing of the Bar complaint adversely affected counsel's performance. "[Defendant] fails to establish any correlation between his filing of a Bar complaint against trial counsel and counsel‘s decisions during the trial. Because a conflict of interest has not been demonstrated, we affirm the trial court‘s summary denial of relief on this claim."
Florida Supreme Court rules that convicted defendant's motion to withdraw plea need not contain specific request to discharge counsel. Sheppard v. State, 17 So.3d 275 (Fla. 2009). Resolving a conflict among Districts, the Florida Supreme addressed whether a defendant's motion to withdraw plea under Fla.R.Crim.P. 3.170(l) must be stricken by the trial court as a nullity if the motion does not include a clear request to discharge counsel. The Court agreed with the Fourth DCA "that a limited exception to the rule of striking pro se pleadings as nullities exists where a defendant files a pro se motion to withdraw a plea pursuant to rule 3.170(l), which contains specific allegations that give rise to an adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion that led to the entry of the plea. In these narrow circumstances, a defendant need not incant the phrase, 'I request to discharge my counsel,' to be entitled to a limited inquiry by the trial court into the allegations. Rather, the trial court is required in these circumstances to conduct a limited inquiry to determine whether an adversarial relationship exists such that defense counsel can no longer continue to represent his or her client at a hearing in which counsel will likely be an adverse witness." (Rule of Professional Conduct 4-3.7 generally prohibits a lawyer from testifying as an adverse witness against his or her client.) The Court quashed the Second DCA's decision in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), and approved the Fourth DCA's decisions in Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005), and Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004). The Court explained: "To require the defendant to affirmatively seek the discharge of his counsel rather than requiring counsel to affirmatively seek to withdraw places a greater duty on the defendant than his lawyer to bring to the trial court's attention a clear adversarial relationship. Unlike a general allegation of a conflict of interest with the lawyer, allegations that the lawyer misadvised the defendant, misrepresented the terms of the plea, or coerced the defendant into accepting the plea create an adversarial relationship where the lawyer cannot both represent his client and refute the allegations. In narrow circumstances such as these, the defendant has in effect requested discharge of counsel and the pleading should not be stricken as a nullity."
Criminal defense counsel's alleged misadvice about consequences of future violation of probation is not ineffective assistance of counsel. Gusow v. State, 6 So.3d 699 (Fla. 4th DCA 2009). Criminal Defendant pleaded guilty and was convicted. He was placed on probation. Defendant violated his probation and was sentenced to 17 years in prison. Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850, alleging that his plea was not voluntary "because his counsel misadvised him that he would face a maximum of only five years in prison for a violation of probation." (Footnote omitted.) The postconviction trial court denied the motion. The Fourth DCA affirmed. Noting that Defendant's claim involved alleged misadvice about a matter collateral to the plea agreement, the court concluded that State v. Dickey, 928 So.2d 1193 (Fla. 2006), was controlling. "[F]ollowing Dickey, we hold that 'wrong advice about the consequences' for a violation of the law 'not yet committed cannot constitute ineffective assistance of counsel.'"
Defendant did not raise cognizable ineffective assistance claim by alleging he rejected plea offer because counsel advised him he would win at trial. Garcia v. State, 21 So.3d 30 (Fla. 3d DCA 2009) (on rehearing). Defendant was charged with armed robbery. He was offered 5 years imprisonment if he would cooperate in his co-defendant's case. He turned down the plea deal, went to trial, was convicted, and was sentenced to life. He moved for postconviction relief, alleging that counsel was ineffective for advising him to reject the plea offer, in view of the evidence against him. Counsel allegedly told Defendant that they would win the case if it went to trial. The motion was denied. The Third DCA affirmed, relying on the Florida Supreme Court's decision in Morgan v. State, 991 So.2d 835 (Fla. 2008). "The Morgan court concluded that a claim of ineffective assistance of counsel can be based on advice from counsel to reject a plea offer. However, the Supreme Court determined that Morgan’s claim was insufficient because the defendant did not specify the deficiency or deficiencies which made his counsel’s advice to reject the plea unreasonable under the circumstances." In the instant case, Defendant did not identify a specific deficiency in his counsel's performance that made counsel's advice to accept the plea unreasonable. "Neither the defendant’s motion nor his witnesses’ affidavits state that counsel failed to fully explain the terms of the plea or the penalties defendant faced. There is also no suggestion that counsel advised the defendant to reject the plea without first preparing and knowing the facts and issues in the case. On the contrary, the record is clear that defense counsel’s advice to reject the plea was based on his quite reasonable belief that the State’s case was weak, and that the best strategy was to argue misidentification and/or that the codefendant acted independently."
Criminal defense counsel's failure to object to State's peremptory striking of racial minority jurors does not constitute ineffective assistance. Jones v. State, 10 So.3d 140 (Fla. 4th DCA 2009). Convicted Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel was ineffective by failing to object to the State's peremptory striking of two black jurors (a “Neil objection;” see State v. Neil, 457 So.2d 481 (Fla. 1984)). The postconviction court summarily denied the claim. The Fourth DCA affirmed, concluding that the trial court properly relied on Jenkins v. State, 824 So.2d 977 (Fla. 4th DCA 2002). The Jenkins court had stated that it did "not see how the claim of a lawyer’s failure to raise a Neil objection could ever be the basis for post-conviction relief for incompetence of counsel. Unlike the situation where a biased juror served on a jury, the failure of a lawyer to raise a Neil challenge does not mean that the jury was biased. The state might have acted in bad faith in exercising its peremptory challenges, but the jury trying the case might have been simon-pure in its objectivity and ability to follow the law. In such a situation, there can be no showing that counsel’s failure to assert a Neil challenge had any effect on the defendant’s ability to receive a fair trial. Thus, there can be no prejudice sufficient to support post-conviction relief." The court further stated that the Jenkins dicta "accurately states the law and is consistent with our supreme court's recent decision in Carratelli v. State, 961 So.2d 312 (Fla. 2007)."
Judge erred by forcing criminal defendant to choose between testifying further or giving up lawyer. Wilson v. State, 12 So.3d 292 (Fla. 4th DCA 2009). Lawyer, an assistant public defender, was appointed to represent Defendant. The two had a rocky relationship. Defendant wished to testify. Lawyer put Defendant on the stand and questioned him briefly. Out of the presence of the jury, Defendant told the judge he wished to testify further to elaborate on various matters, including his relationship with the complaining witnesses and his whereabouts on the days of the alleged offenses. Lawyer thought that further testimony would be a mistake. The judge asked Defendant whether he wanted to represent himself. Defendant replied that he would keep his counsel. Defendant was convicted. The Fourth DCA reversed. "In making [Defendant] choose between testifying further and giving up his attorney, the trial court erred by forcing him to choose between two constitutionally protected rights, the right to testify and the right to counsel." This was an impermissible choice. "Most of the matters about which [Defendant] wished to testify were relevant to the charges. There is no suggestion that he intended to testify falsely. No rule of evidence precluded the proposed testimony. Defense counsel should have acceded to her client’s wishes. Instead of forcing [Defendant] to choose between testifying further and keeping his attorney, the trial court should have ordered [Defendant]’s attorney to continue with the direct examination."
Error to summarily deny claim that defense counsel was ineffective for not moving to disqualify trial judge, who had previously prosecuted defendant. Clayton v. State, 12 So.3d 1259 (Fla. 2d DCA 2009). Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel provided ineffective assistance. One ground was that counsel was ineffective because he failed to move to disqualify the judge. Defendant alleged that the judge, a former assistant state attorney, had previously prosecuted him in other cases before the judge assumed the bench. Defendant "feared he would not receive a fair trial and that he asked his counsel to file a motion to disqualify the judge" and argued that "but for counsel's failure to file the motion, he would not have entered a plea and would have proceeded to trial." The motion was summarily denied. The Second DCA reversed. "The fact that the presiding judge prosecuted a defendant in a previous case is sufficient to support the defendant's claim of a well-founded fear that he would not receive a fair trial before the judge." (Citation omitted.)
Second DCA cautions postconviction petitioners that allegations of "fundamental error" actually could be harmful to their claims. Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009). Defenant appealed an order denying his postconviction motion as untimely. Despite the timing problem, Defendant alleged that his petition "should nevertheless be given full consideration because the claim alleged is a matter of 'fundamental error.'" The Second DCA affirmed, and wrote a lengthy opinion "to dispel the common misconception among prisoners that 'fundamental error' can be reviewed in a postconviction proceeding at any time, including beyond the two-year period normally permitted for motions filed under rule 3.850." "Fundamental error" does not justify an extension of time for filing a postconviction motion. "[A]n error that is actually reviewable on direct appeal as 'fundamental error' cannot be raised on postconviction review except as a matter of ineffective assistance of counsel. Thus, we write to discourage the use of this term in postconviction proceedings and to encourage defendants to allege a claim using the language of rule 3.850 or other more specific legal concepts." The court examined the case law and closed by "caution[ing] those who file postconviction motions that an allegation of 'fundamental error' is unlikely to help their cause and may actually harm it."
Fourth DCA urges Florida Supreme Court to impose page limit on postconviction motions. Ezer v. State, 10 So.3d 1175 (Fla. 4th DCA 2009). Defendant was convicted and sentenced. His conviction was affirmed on direct appeal. Defendant then filed a 105-page motion for postconviction relief. The Fourth DCA affirmed the summary denial of the claims, then urged the Florida Supreme Court address the length of postconviction motions. "We also note that this excessively lengthy motion from a conviction entered following a plea demonstrates why a strict page limitation should be imposed on rule 3.850 motions. . . . Florida Rule of Criminal Procedure 3.851(e) places a 75-page limit on death penalty postconviction motions. If the far more complicated and consequential death penalty postconviction relief motions are pagelimited, then why can a defendant with a considerably shorter sentence with vastly fewer issues be able to file much longer motions? For the trial and appellate courts, this is an important workload issue, as the number of postconviction relief motions continues to grow. The supreme court should act to limit the motions filed in rule 3.850 and rule 3.800 cases."
First DCA adopts new procedure for handling petitions for belated appeals that present facially sufficient claims for relief based on alleged ineffectiveness of trial counsel. Staley v. State, 12 So.3d 778 (Fla. 1st DCA 2009). Defendant petitioned the First DCA for a belated appeal of his judgment and sentence. Defendant alleged he "relied on his trial counsel’s assurances that a timely notice of appeal would be filed, only to discover after the time had expired for seeking review that an appeal had not been initiated." The court addressed Defendant's petition by announcing a new procedure that it would begin following "in instances such as this, where a petition for belated appeal presents a facially sufficient claim for relief grounded on the alleged ineffectiveness of trial counsel." The new procedure works as follows: "[W]hen we determine that a petition for belated appeal grounded on the alleged actions or inactions of trial counsel is legally sufficient, we will at that point relinquish jurisdiction to the lower tribunal for the purpose of appointing a special master to issue an order to show cause directed to the State Attorney, conduct an evidentiary hearing if warranted by the state’s response, and issue an appropriate report and recommendation concerning the petitioner’s entitlement to a belated appeal. We anticipate that this course of action will minimize needless delays by immediately involving in the fact-gathering process the participants in the underlying proceedings, and our expectation is that, absent some extraordinary circumstances, necessary proceedings can be conducted and a report and recommendation issued within 60 days." (Footnote omitted.)
On direct appeal, Second DCA reverses conviction based on ineffective assistance of counsel apparent on face of record. Lowery v. State, 22 So.3d 745 (Fla. 2d DCA 2009). Defendant pleaded guilty to a felony drug charge. The plea capped prison time at 18 months. Defense counsel, but not Defendant, appeared at the sentencing hearing. The court imposed 5 years imprisonment, which exceeded the agreed-upon cap, although neither the plea hearing transcript nor the written plea agreement indicated the court would modify the sentence if Defendant did not appear. Defense counsel pointed out that the sentence exceeded the agreed-upon cap but did not formally object. Defense counsel did not move to withdraw the plea, but instead moved to withdraw from representing Defendant. The Second DCA reversed, even though Defendant had not moved in the trial court to withdraw her plea. "[T]he ineffectiveness of [Defendant]'s counsel is evident on the face of the record: he failed to formally object when the court imposed a harsher sentence, and he did not file a motion to withdraw the plea. Even though the trial court stated that it would entertain a motion to modify [Defendant]'s sentence based on exigent circumstances, counsel withdrew from the case without even discussing with [Defendant] the possibility of filing such motion. Moreover, counsel actually agreed with the court's erroneous recollection of the plea bargain. [Defendant] was obviously prejudiced by this ineffectiveness, as she received the maximum prison sentence possible for the crime charged." (Footnote omitted.)
On direct appeal, Fifth DCA reverses conviction on for ineffective assistance apparent on face of record. Spicer v. State, 22 So.3d 706 (Fla. 5th DCA2009). Finding one of those "rare cases" where trial counsel's "deficient performance is clear from the face of the record," the Fifth DCA reversed Defendant's conviction. The sole defense at trial was self-defense. Counsel mistakenly "repeatedly explained to the jury in his closing argument" that Defendant bore the burden of proving self-defense. Furthermore, Counsel submitted an erroneous jury instruction on that point that was read to the jury.
Cases involving right-to-counsel and self-representation issues included: Postconviction court should have appointed counsel after defendant claimed conflict with his lawyer, who had since left public defender's office. Howard v. State, 17 So.3d 774 (Fla. 2d DCA 2009). Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850. The motion was denied and Defendant appealed. The Second DCA reversed for a new evidentiary hearing at which Defendant would be represented by court-appointed conflict-free counsel. After Defendant's trial his lawyer, an assistant public defender, left the P.D.'s office to work for the State Attorney's office. Defendant filed a motion to "withdraw and terminate counsel" contending that his new lawyer, also an assistant public defender, was not properly prepared and was not keeping Defendant informed. Defendant asserted that "he had a conflict of interest with the entire Public Defender's Office because [his former lawyer] had worked there and because he had filed bar complaints against other attorneys with the Public Defender's Office." The court denied Defendant's request for conflict-free counsel who was not from the public defender's office. On appeal Defendant argued that "the postconviction court erred in denying his request for conflict-free counsel because his position in the postconviction motion was adverse to former assistant public defender [his former lawyer]." The Second DCA agreed and reversed for a new evidentiary hearing, noting that "[t]he Public Defender's Office has a conflict precluding representation of a defendant who files a motion for postconviction relief containing allegations of ineffective assistance of a public defender that require an evidentiary hearing." The specific issue before the postconviction court in this case "was whether the Public Defender's Office has such a conflict when the assistant public defender that is the subject of the postconviction motion is no longer with the Public Defender's Office." Citing Fletcher v. State, 890 So.2d 1167 (Fla. 5th DCA 2004), the court agreed that the conflict continued and thus Defendant was entitled to appointment of conflict-free counsel.
Court committed reversible error by not offering assistance of counsel to defendant appearing pro se at restitution hearing. White v. State, 21 So.3d 77 (Fla. 1st DCA 2009). Defendant pleaded no contest to grand theft. After sentencing but before restitution was determined, defense counsel withdrew. Defendant filed a pro se motion to modify her sentence. The trial court did not offer assistance of counsel or conduct a Faretta inquiry. The court ordered a substantial amount of restitution (almost $400,000). The First DCA reversed, agreeing that the court committed fundamental error by failing to offer assistance of counsel at the restitution hearing. "[Defendant] was entitled to have counsel at the restitution hearing because restitution is considered part of sentencing and thus is a 'crucial' stage in the proceedings."
Motion signed by criminal defendant's lawyer is not valid waiver of defendant's right to jury trial. Racine v. State, 16 So.3d 955 (Fla. 5th DCA 2009). Defendant's lawyer filed a written motion waiving Defendant's right to a jury trial. Defendant was convicted. The Fifth DCA reversed, agreeing that it was error to try Defendant without obtaining a proper waiver from him of his right to trial by jury. "For a waiver of the right to jury trial to be valid, a waiver form must be signed by the defendant or the defendant must orally waive that right after a proper colloquy with the trial court." (Citations omitted.)
LAW FIRMS Florida Bar Board of Governors approves Florida Ethics Opinion 07-2 concerning outsourcing legal work to foreign countries. The Florida Bar Board of Governors approved Florida Ethics Opinion 07-2. The opinion addresses ethical issues presented by Florida lawyers who outsource legal work to foreign countries. Opinion 07-2 concludes that, if certain caveats are followed, the practice may be ethically permissible. The Board committee voted to approve the opinion with the addition of language cautioning lawyers to "be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties, particularly where the information concerns medical records or financial information." The editorial headnote summarizing Florida Ethics Opinion 07-2 states: "A lawyer is not prohibited from engaging the services of an overseas provider to provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of nonlawyers, conflicts of interest, confidentiality, and billing. The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties." NOTE: In April 2009 the Board of Governors approved additional “Guidelines Regarding Offshoring Legal Services.” (“Offshoring” is outsourcing to a foreign country.) Among the points made in the Guidelines are the following: Lawyers should maintain physical, electronic and procedural safeguards to securely store information about clients and safeguard it from unauthorized access, alteration and destruction. Lawyers should understand the technology of the creation, transmission, storage, and deletion of electronic data to the extent necessary to prevent inadvertent disclosure of client’s data and to the extent necessary to maximize resources to perform work more efficiently for clients. The use of access codes, passwords and firewalls, virus protection, secure transmission and storage methods should be explored. Lawyers should limit disclosure of client identifiable data whenever possible. For information which is required to be used in client identifiable data, consent should be obtained for both the disclosure of the information and the purpose for which it is used. Lawyers should also familiarize themselves with privacy laws of their offshore service providers to avoid situations in which the hosting jurisdiction arrests the transmission of data back to the United States.
Venue of legal malpractice case based on disclosure of confidential information is proper not where disclosure took place but where resulting damage occurred. Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., __ So.3d ___, 34 Fla.L.Weekly D2136 (Fla. 2d DCA, No. 2D08-6215, 10/16/2009), 2009 WL 3320202. See discussion in “Legal Malpractice” section.
Law firm not responsible for losses caused by one of its lawyers who acted outside scope of employment and defrauded "investors." Saralegui v. Sacher, Zelman, Van Sant, Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009). Two defrauded "Investors" sued defendants including Law Firm. Investors had "invested" money with Lawyer, an employee of Law Firm. (The "investments" arguably were disguised usurious loans.) Law Firm moved for summary judgment, which was granted. Investors appealed, arguing that there was a genuine issue of fact regarding Lawyer's "apparent agency" for Law Firm. The Third DCA disagreed. The "investment" agreement recited in part that Investors were "contracting with '[Law Firm]–[Lawyer]–Trustee, acting solely in his capacity as a Trustee for a client ('Client”).' The agreement further stated that the 'Trustee acts on behalf of an international qualified borrower ('Client'), who is currently participating in an investment project. [Lawyer] signed as 'Trustee.'" Although Investors wired funds to Law Firm's trust account, Law Firm did not know of the fraudulent transaction and apparently did not keep the funds. The appeals court pointed out that Investors did not specifically plead "apparent agency" in their complaint, although they did allege that Lawyer acted in the course and scope of his employment with Law Firm. This, however, "was contradicted, not established, by the parties' submissions before the summary judgment hearing." The court concluded: "[Lawyer]’s fraud was also a fraud upon [Law Firm], and it resulted in his permanent disbarment from The Florida Bar. Unfortunately, citizens of other countries may be familiar with transactions in their own countries in which lawyers and law firms wear multiple hats as principals, brokers or intermediaries, and legal advisors in business transactions, but our system draws clear distinctions among these roles and clear boundaries between the legal representation of a lender and a borrower. Had the appellants retained a Florida lawyer to give them independent advice before making these loans, the facially-obvious usury and questionable 'trusteeship' proposed by [Lawyer] on behalf of the borrowing entity surely would have caused legal eyebrows to rise and the investors to flee."
LEGAL MALPRACTICE Florida Supreme Court decides when statute of limitations on legal malpractice claim begins to run where sanctions order becomes final after underlying judgment did. Larson & Larson, P.A. v. TSE Industries, 22 So.3d 36 (Fla. 2009). Client, represented by Law Firm, sued Defendant for alleged patent infringement. Law Firm allegedly engaged in misconduct during the litigation. Defendant moved for an award of attorney's fees against Client. The judgment for Defendant in the underlying infringement action was final on September 16, 2002. Subsequently Client and Defendant settled the attorney's fees claim. On October 10, 2002, Client and Defendant filed a stipulation to dismiss the action with prejudice. Client sued Law Firm for legal malpractice on October 5, 2004, which was less than 2 years after Law Firm filed the stipulation to dismiss the patent infringement action but more than 2 years after the underlying judgment became final. The court granted Law Firm's motion for summary judgment, relying on Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998), to hold that the claim was time-barred because statute of limitations on Client's malpractice claim began to run when the judgment on the merits of the patent infringement action became final. The Second DCA reversed. Silvestrone controlled, but the trial court applied it incorrectly. In Silvestrone the litigation was concluded when the final judgment became final; here, however, because of the attorney's fee claim "the litigation was not concluded until the parties filed the stipulation to dismiss the underlying action with prejudice." The court certified conflict with the Fourth DCA's decision in Integrated Broadcast Services, Inc. v. Mitchel, 931 So.2d 1073 (Fla. 4th DCA 2006). TSE Industries, Inc. v. Larson & Larson, P.A., 987 So.2d 687 (Fla. 2d DCA 2008). The Mitchel court concluded that "the limitations period on a legal malpractice claim began to run on the underlying judgment when that judgment was final but did not begin to run with respect to a subsequent sanctions judgment until the sanctions judgment became final." A majority of the Florida Supreme Court agreed with the "bifurcated approach" employed by the Fourth DCA in Mitchel. Concurring and dissenting opinions also were filed. The Court noted that "[t]he statute of limitations requires that a legal malpractice action on a litigation-related claim be brought within two years after the cause of action is or should have been discovered, § 95.11(4)(a), Fla. Stat. (2002), and in Silvestrone we drew the line of accrual at the time final judgment was final to 'provide certainty and reduce litigation over when the statute starts to run.'" (Citation omitted.) The Court explained that the Silvestrone rule "merely establishes a bright line for establishing when the client has suffered some loss as a consequence of the attorney's negligence. It does not require that there be a determination of the full extent of all losses suffered by the client due to the lawyer's negligence." (Emphasis by Court.) The Court agreed with the Fourth DCA that "the finality of a determination regarding a claim for sanctions may occur independently of the finality of the underlying judgment." The Court stated: "The damage suffered by the client arising from the underlying judgment is discrete from any damage that might be suffered by the client arising from a sanctions claim that is not finally adjudicated in the underlying judgment. The discrete occurrence of damage – marked by a separate final judgment or the equivalent – gives rise to the discrete discovery of loss and the discrete accrual of separate causes of action for malpractice. Here, the point of finality with respect to the sanctions claim was not reached until the settlement was entered while the sanctions litigation was pending. Until then, it was possible that an appeal in the sanctions litigation would produce an outcome favorable to [Client]. Only with the entry of the settlement agreement was the existence of any harm to [Client] arising from the sanctions claim determined with sufficient certainty to justify commencement of the limitations period." (Footnote omitted.) Consequently, because the underlying litigation was concluded before the sanctions litigation was resolved, "redressable harm was established regarding the underlying litigation before there was redressable harm with respect to the sanctions. The sanctions-based malpractice claim was 'hypothetical and [the related] damages [were] speculative until . . . an adverse outcome to the client' occurred in the litigation concerning the sanctions. Silvestrone, 721 So. 2d at 1175." Justice Perry filed an opinion concurring in part and dissenting in part. Justice Lewis dissented, stating that he was "in substantial agreement with the logical, reasonable analysis provided by" the Second DCA. Among other points, his opinion expressed concern that the majority's holding would create a potential for a conflict of interest problem between attorney and client because, as stated by the Second DCA, "'forcing an aggrieved party to file a legal malpractice action before the underlying litigation is resolved would also create a conflict of interest that would undoubtedly require counsel to withdraw from representation in the underlying action. This would place the aggrieved party in the untenable position of having to hire new counsel who was unfamiliar with the case to continue the litigation or pursue negotiations at the last hour. This would also take away the opportunity for counsel to correct his or her mistakes in the underlying action.'"
Middle District of Florida federal court concludes that insurer may bring legal malpractice action against lawyer it hired to defend its insured. Hartford Ins. Co. of the Midwest v. Koeppel, 629 F.Supp.2d 1293 (M.D.Fla. 2009). Hartford Insurance Company hired Lawyer and his law firm ("Lawyer") to represent one of its insureds, Davis, who was in an auto accident. Lawyer allegedly negligently responded to a demand letter from the counsel representing Oliveri, the person who claimed to have been injured. After settling the suit filed by Oliveri against Davis, Hartford sued Lawyer in federal court seeking damages for legal malpractice, equitable subrogation, legal malpractice as third-party beneficiary, and breach of contract as third-party beneficiary. Lawyer moved to dismiss for lack of standing and lack of subject matter jurisdiction, alleging that it did not have an attorney-client relationship with Hartford and that it did not have privity of contract with Hartford. The District Court denied Lawyer's motion to dismiss. The facts showed that Hartford and Lawyer were in privity of contract, even assuming that Lawyer was correct in asserting that it represented only the insured and not Hartford. "Neither the Florida Supreme Court nor the state's appellate courts have expressly addressed whether an insurer can bring a legal malpractice or breach of contract claim against an attorney hired to represent its insured," but the court noted that "[t]he majority of jurisdictions to decide the issue, however, have concluded that the insurer is in privity of contract with the attorney hired to represent insured individuals or is a third-party beneficiary of the relationship between the attorney and the insured." The court pointed to policy reasons supporting allowing an insurer to bring a legal malpractice claim against a lawyer it hired to represent its insured. The lawyer is in a fiduciary relationship to both insured and insurer. Because the insurer has the financial exposure that can arise from the lawyer's malpractice, the insured has no real incentive to pursue a malpractice action. "Further supporting the conclusion that the Florida courts would recognize an insurer's legal malpractice claim against the attorney it retains to represent its insured is the Florida Court of Appeals' interpretation of the Florida Bar rules as allowing the same attorney to ethically represent, at the same time, both the insured and insurer. See Progressive Express Ins. Co. v. Scoma, 975 So.2d 461, 466 (Fla.Ct.App.2007) (citing Rule 4-1.7(e) of the Rules Regulating the Florida Bar and concluding that ‘the same attorney may often ethically represent both the insured and the insurer’ provided their interests are not adverse.)" The court also observed that "Florida courts have recognized an exception to the strict privity requirement for legal malpractice claims in other contexts, such as in the area of will drafting," citing Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378 (Fla. 1993). Additionally, "the Florida Supreme Court's decision in Fremont Indemnity Co. v. Carey, Dwyer, Eckhart, Mason & Spring, P.A., 796 So.2d 504 (Fla.2001), leads this Court to believe that the Florida courts would recognize an insurer's legal malpractice claim against the attorney retained to represent its insured." The court concluded: "Therefore, this Court 'guesses' that the Florida Supreme Court would embrace the majority view and recognize an attorney-client relationship between an insurer and the lawyer or law firm it retained to represent an insured or find that the insurer is an intended third-party beneficiary of the relationship between the attorney or law firm and the insured. Accordingly, this Court concludes that Hartford has standing to pursue its legal malpractice and breach of contract claims against Defendants. Similarly, the Court concludes that a duty of care ran from [Lawyer] to Hartford and therefore Hartford does not fail to state a claim upon which relief may be granted, as Defendants argue."
New York law firm subject to suit in Florida for legal malpractice based on legal work performed mostly in New York Beta Drywall Acquisition, LLC v. Mintz & Fraade, P.C., 9 So.3d 651 (Fla. 4th DCA 2009). Law Firm, based in New York with New York-licensed lawyers, performed work for Florida clients relating to acquisition of a Florida corporation’s assets. Law Firm formed 2 Florida LLCs. All of the legal work, except the closing, was performed in New York. The clients later sued Law Firm, alleging that Law Firm's failure to properly perform the services resulted in a derivative action that was settled for $750,000. The trial court granted Law Firm's motion to dismiss for lack of personal jurisdiction. The Fourth DCA reversed, concluding that the underlying action was within the scope of Florida's long arm jurisdiction statute and that Law Firm had the requisite "minimum contacts" with Florida. The court discussed "several principles which inform a court’s determination that a defendant’s actions bring it within this provision of the long arm statute: (1) a cause of action for tort accrues wherever plaintiff suffers damage to his property; (2) in order to commit a tortious act in Florida, a defendant’s physical presence is not required; (3) a foreign defendant can commit a tort within Florida via its electronic, telephonic, or written communications into the state so long as the cause of action arises from those communications; (4) a defendant need not commit a physical tort within Florida in order to be brought within the ambit of the long-arm statute." Law Firm's actions brought it within the scope of the statute. The allegedly faulty documents were prepared in New York but filed in Florida, giving rise to the alleged injury. The minimum contacts requirement also was satisfied. Law Firm "performed the necessary legal work for the formation of two Florida LLCs created for the purpose of acquiring the assets of an existing Florida corporation. [Client] claims [Law Firm was] negligent in their performance, and thus, that they are liable for legal malpractice and breach of fiduciary duty. [Client's] claims arise from the activity [Law Firm] directed into the state of Florida. A reasonable person having conducted the activities conducted by [Law Firm] in the present case would reasonably foresee being haled into court in Florida should an issue regarding the very formation of [Client] arise."
Venue of legal malpractice case based on disclosure of confidential information is proper not where disclosure took place but where resulting damage occurred. Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., __ So.3d ___, 34 Fla.L.Weekly D2136 (Fla. 2d DCA, No. 2D08-6215, 10/16/2009), 2009 WL 3320202. The personal representative ("P.R.") of an estate hired Law Firm to represent her in her individual and representative capacities. Probate proceedings were opened in Manatee County, where the decedent had resided. Law Firm was based in Hillsborough County. Disputes arose between P.R. and her stepsons, who were represented by their own counsel. The parties settled. The IRS later determined that the estate owed additional taxes. Lawyer, an attorney with Law Firm, contacted the stepsons' counsel about their paying a portion of the tax liability per the settlement agreement. Lawyer gave the stepsons' counsel a copy of the IRS worksheets, but before sending them the Lawyer "failed to redact confidential information from the sheets, thereby providing to the sons privileged information relating to the financial circumstances of [P.R.] and the estate." After receiving this information the stepsons hired new counsel and brought an action against P.R. demanding additional funds from the estate. P.R. paid them, then sued Law Firm and Lawyer for alleged breach of fiduciary and professional negligence. P.R. sued in Manatee County, but Law Firm convinced the court to conclude that Manatee County "was not the proper venue because the cause of action accrued in Hillsborough County." The Second DCA reversed. Venue was proper where the last action that would render the defendant liable occurred. In order to answer that question, the court stated that it "must resolve whether the delivery of the documents was the proximate cause of the damage to [P.R.] or whether some additional event or act must have occurred before [Law Firm and Lawyer] could be held liable for the tortious conduct." The court decided that the mere delivery of the documents was not the proximate cause of P.R.'s damage. "[W]e conclude that [P.R.] did not suffer redressable harm, thereby causing her legal malpractice claim to accrue, until the sons used the improperly disclosed information as the basis for their pleadings in the Manatee County probate proceeding. Until those pleadings were filed, [P.R.] professional negligence claim was hypothetical and any damages were speculative. As such, the final act or event that was necessary to render [Law Firm and Lawyer] liable for professional negligence occurred in Manatee County, and venue is proper there."
Law firm did not commit transactional malpractice by failing to obtain signature on contract where there was no meeting of the minds. Natural Answers, Inc. v. Carlton Fields, P.A., 20 So.3d 884 (Fla. 3d DCA 2009). Lawyer, an attorney with Law Firm, represented Client in trying to negotiate a business transaction. In 1999 Lawyer sent a letter to the Other Party "outlining the 'major terms' of the 'agreement reached.' However, a number of significant terms remained in dispute, and the letter acknowledged an understanding that a different attorney would finalize a formal agreement to be signed by the parties. The record reflects that by early 2000, in an effort to execute a final contract, [Client] and [Other Party] hired transactional attorneys . . . From January through March 2000, these transactional attorneys exchanged six different proposed drafts, however their clients were unable to agree on a final written contract." Other Party paid Client some money. Negotiations broke down. Other Party asked for his money back, but Client did not return it. The dispute went to federal court. The court found that the parties contemplated but never reached a final written agreement, and ordered Client to return the money. Client then sued Law Firm for transactional malpractice, alleging that Lawyer "was negligent when he failed to obtain a signature from [Other Party] after a binding agreement was reached, and for advising [Client] that a binding agreement had been reached." The Third DCA affirmed the trial court’s grant of summary judgment. "[A]ll of the parties involved understood that the negotiations between [Client] and [Other Party] were just that – negotiations, until the finalized documents were executed and signed. However, these negotiations broke down, and the parties failed to enter into a binding agreement. Thus, there was no meeting of the minds."
Law firm not responsible for losses caused by one of its lawyers who acted outside scope of employment and defrauded "investors." Saralegui v. Sacher, Zelman, Van Sant, Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009). See discussion in “Law Firms” section.
PROFESSIONALISM Florida Supreme Court again criticizes prosecutor's closing argument, but it did not rise to level of fundamental error. Hayward v. State, 24 So.3d 17 (Fla. 2009). During a first-degree murder trial the prosecutor made a penalty-phase closing argument that was not objected to. Defendant appealed, contending that the argument constituted fundamental error. The Supreme Court agreed that the argument was improper. "[Defendant] argues that the State did not follow the law and improperly used victim impact information to compare the characters and choices of [the victim] and [Defendant] during the penalty phase closing argument. We agree. Although the victim impact evidence itself was proper, the prosecutor‘s use of it in his closing argument – comparing the choices made by the victim and those made by [Defendant] – was improper." Although improper, the argument did not constitute fundamental error. The Court, however, criticized the prosecution. "[W]e feel compelled to once again voice our disapproval of this type of prosecutorial comment comparing the life or choices of the victim with that of the defendant. The misconduct was exacerbated by the prosecutor‘s acknowledgment immediately prior to the commencement of the penalty phase of the impropriety of the use of victim impact evidence in such a manner. Despite his agreement to refrain from using victim impact evidence to make 'characterizations and opinions about . . . the defendant' the prosecutor proceeded to needlessly stain the record with the clearly improper remarks. . . . [W]e again hold that victim-defendant comparisons are improper and again 'caution the State and its prosecutors to remain mindful of the limited purpose for which victim impact evidence may be introduced and to stay strictly within those parameters.'" (Citations omitted.)
Although criticizing lawyer's conduct as "reprehensible," First DCA reverses F.S. 57.105 attorney's fees sanction entered too late. Campbell v. Dept. of Business and Professional Regulation, 9 So.3d 59 (Fla. 1st DCA 2009). Lawyer filed a class action suit against the State. The suit was dismissed for failure to state a cause of action. The State moved for sanctions under F.S. 57.105 and the court's inherent power, alleging that Lawyer knew or should have known the class representative was not qualified and that, therefore, the claim was groundless and frivolous. The court declined to impose sanctions. Lawyer's client appealed dismissal of the case, but the State did not cross-appeal the court's denial of sanctions. The First DCA affirmed and remanded. On remand the State filed another motion for sanctions, which the trial court granted. Lawyer appealed. The First DCA reversed, agreeing with Lawyer that "the trial court was without authority to revisit the sanctions issue once this Court affirmed the final order dismissing the case." The court relied on the doctrine of waiver, concluding that it applied both to the section 57.105 claim and the inherent power claim. The appeals court, however, expressly criticized Lawyer's conduct. "We wish to make clear, however, that we do not intend to suggest approval of [Lawyer]’s conduct. The trial court found that [Lawyer], who is an attorney, filed a class action on behalf of a client he new or should have known was not a member of the proposed class, a finding [Lawyer] does not contest on appeal. The record makes clear, and the trial court’s order suggests, that [Lawyer] continued to pursue this baseless litigation even after learning that the State suspected [Lawyer]’s client was not a member of the proposed class. Such conduct is reprehensible."
First DCA imposes appellate attorney's fees against party and her lawyer as sanction under F.S. 57.105. Long v. AvMed, 14 So.3d 1264 (Fla. 1st DCA 2009). See discussion in “Fees” section.
Court may individually assess personal representative for attorney's fees resulting from frivolous litigation, even absent bad faith finding. Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009). See discussion in “Fees” section.
Despite prosecution’s improper argument that one judge called "outrageous," Third DCA affirms criminal conviction. Williams v. State, 10 So.3d 218 (Fla. 3d DCA 2009). During a murder trial the prosecution made statements in closing argument that were objected to by defendant's counsel. The court overruled the objections and denied defendant's motion for mistrial. Defendant was convicted. The Third DCA affirmed. The majority concluded that "[w]hile we find the statements were improper, we affirm the defendant's convictions because, based on the overwhelming evidence of guilt, the error was harmless." The majority, however, criticized the prosecution's conduct: "Although we conclude that there is no reasonable possibility that the complained-of errors contributed to the defendant’s convictions or denied the defendant his right to a fair trial, we again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence. . . . As Judge Blue so aptly stated: 'Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.' Luce v. State, 642 So.2d 4, 4 (Fla. 2d DCA 1994) (Blue, J., concurring specially)." One judge filed a concurring opinion in which he severely criticized the prosecution's conduct, stating that "the prosecution's tactics were outrageous and unfortunately were compounded by the trial court overruling defense counsel's objections." The concurring opinion concluded with a warning regarding future occurrences of such conduct: "Over the years, it has been my unfortunate experience to see a long procession of assistant State attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel’s questions during oral argument. If nothing else, I will henceforth publish their names so that their questionable tactics appear in the permanent record of the Southern Reporter."
Fourth DCA comments critically on lawyers' professionalism in seeking “emergency” review. USAA Casualty Ins. Co. v. Pembroke Pines MRI, Inc., __ So.3d ___, 34 Fla.L.Weekly D2169 (Fla. 4th DCA, No. 4D09-3832, 10/21/2009), 2009 WL 3364974. Insurer sought "emergency" certiorari review in the circuit court, alleging that a premature bad faith claim was pending in the trial court and that plaintiff should be prevented from obtaining bad faith discovery before liability was decided in the underlying case. The circuit court "held a brief hearing, concluded there was no 'emergency' and deferred ruling on the merits of the motion for review." Insurer then filed with the Fourth DCA what it described as an "emergency" petition for writ of certiorari, seeking review of the circuit court’s order. The DCA denied the petition, cautioning: "The court system is overloaded. . . To safeguard the rights of litigants and assure meaningful review in time sensitive cases, certain types of cases, such as the termination of parental rights and the denial of pretrial bond, are reviewed on an expedited basis. . . . Pleadings filed as emergencies disrupt court procedures and interrupt work on cases that were already pending. Consequently, an attorney who seeks 'emergency' review immediately loses credibility if this court discovers there is no true emergency."
Trial notice is not "a hunting license" to engage in unprofessional behavior, Fifth DCA judge warns. Allen v. State, 17 So.3d 897 (Fla. 5th DCA 2009). The Fifth DCA affirmed a defendant's conviction. One judge wrote a concurring opinion criticizing trial counsel’s unprofessional behavior: "My sympathy lies with the trial judge who put up with the boorish behavior of these professionals in order to get this case to the jury. He exercised far more patience than I would have. I hesitate to begin a list of the questionable behaviors engaged in during the evidentiary portion of the trial, but chief among them were personal sniping at opposing counsel and arguing with the rulings of the trial judge. The closing arguments of the two defense lawyers, for example, proved to be quite a challenge. By my count there were 12 objections by the State (the vast majority of which were sustained), requiring five separate bench conferences. Each bench conference required repeated admonitions by the trial judge to modulate voices downward. Most of the suspect bits of argument concerned misstatements of the facts, misstatements of the law, or giving personal opinions, none of which are appropriate. One cannot read the transcript without being saddened. These are obviously good lawyers and zealous advocates. The problem is that they have somehow mistaken a trial notice for a hunting license. This is not good for the profession and not good for the involved individuals." (Footnote omitted.)
Conviction reversed due to cumulative effect of prosecution's improper closing argument. Fleurimond v. State, 10 So.3d 1140 (Fla. 3d DCA 2009). At closing argument in Defendant's trial the prosecution made three arguments Defendant found objectionable. Defendant's motion for mistrial based on the cumulative effect of these arguments was denied. Defendant appealed. The Third DCA reversed. First, the prosecutor stated that Defendant was found by police in the act of flushing drugs down the toilet. The appellate court concluded that there was no evidence in the record to support this statement. Second, the prosecutor twice referred to the crime taking place next to an elementary school. The problem, however, was that the charge of selling drugs within 1000 feet of a school had previously been dropped. Third, the prosecutor "improperly appealed to the jury’s community sensibilities by arguing how unfair it was to Miami- Dade County that people were trafficking in narcotics." Such an argument consistently has been held to be improper.
PUBLIC OFFICIAL ETHICS AND PUBLIC RECORDS Lawyer who is school board member would not have conflict prohibiting him from voting to select lawyer in member's former law firm as school board attorney. Florida Commission on Ethics Opinion 09-12. Lawyer, a member of a county school board, recently resigned from a large law firm. One of the firm's attorneys is now a finalist for the position of school board attorney. Lawyer asked the Florida Commission on Ethics if he would face a prohibited conflict by participating in the vote to hire the school board attorney. The Commission concluded that there was not a voting conflict under F.S. 112.3143(3)(a).
Prohibited conflict exists if other lawyers in county commissioner's law firm represent clients before the commission. Florida Commission on Ethics Opinion 09-10. County Commissioner is "of counsel" to Law Firm (although he holds the title "partner"). Commissioner essentially is an employee of Law Firm and does not share in the firm’s profits. Commissioner asked the Florida Commission on Ethics if it would be permissible for other lawyers in Law Firm to represent clients before the County Commission. Commissioner would take no part is such representations, other members of the firm would not lobby him, he would not lobby other commissioners, and he would not "participate in any way in the representation of the firm's clients in matters relating to the County Commission or the County." The firm's clients would be fully informed of these facts. The Commission answered in the negative, citing F.S. 112.313(7)(a). Commissioner has a contractual relationship with Law Firm and its clients. See Commission on Ethics Opinions 96-1, 07-13. "Therefore, we find, as we have in several situations similar to the Commissioner's, that his contractual relationship with the firm OR with clients of the firm would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or would impede the full and faithful discharge of his public duties, under the second part of the statute, in the event a firm member represents a client before the County Commission." (Emphasis in original.) The Commissioners status with Law Firm as "of counsel" did not change the result. In a footnote, the Commission pointed out that "we find that a prohibited conflict under Section 112.313(7)(a) would not be created for the Commissioner due to representation by other members of his law firm before County boards other than the County Commission. . . . [T]he Commissioner should contact The Florida Bar regarding such representations."
Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees. Milanick v. Osborne, 6 So.3d 729 (Fla. 5th DCA 2009). Mayor was the subject of a ethics complaint filed by Complainant. Mayor prevailed. The Administrative Law Judge awarded Mayor attorney's fees and costs he incurred in defending the complaint, but denied Mayor's request for fees and costs "for the administrative hearing to determine the amount of the award and [Complainant]'s attempt to obtain discretionary review by the Florida Supreme Court." When Complainant appealed, Mayor cross-appealed the denial of fees. The Fifth DCA reversed on Mayor's fee issue. "Section 112.317[(8)], Florida Statutes (2007), entitles Mayor [] to an award of reasonable attorney's fees and costs incurred in defending against the ethics complaint. This includes proving entitlement to and the amount of those costs and fees, including fees and expenses incurred after the administrative hearing. . . . We hold that Mayor [] was entitled to an award of attorney's fees and costs incurred in connection with the September 28, 2007 hearing, including services rendered both during and after the hearing."
Criminal defendant's filing of pleading in his closed case not appropriate method of filing public records request. Harris v. State, 21 So.3d 864 (Fla. 3d DCA 2009). Defendant filed a document entitled "Request for Inspection of Public Records Pursuant to Government in the Sunshine Law" in the closed file of his criminal case. He sought inspection of documents relating to Defendant's 1995 plea in the case. The court denied Defendant's "Request." The Third DCA affirmed. "As the State points out in its response, where the defendant requests public records, the correct procedure is to submit a written request by letter to the agency or agencies from whom the defendant desires to receive the documents. Filing a pleading in the defendant’s original 1992 case does not effectively convey the request for records to the appropriate agency, such as the State Attorney or the Clerk of the Circuit Court. We therefore affirm the order now before us, without prejudice to the defendant to send an appropriate request for public documents to the appropriate agency." (Citations omitted.)
Audio recording of criminal defendant's sentencing hearing is not a "court record" and therefore is not a public record. Media General Operations, Inc. v. State, 12 So.3d 239 (Fla. 2d DCA 2009). A newspaper Publisher petitioned for a writ of mandamus to compel the Chief Judge of the Sixth Judicial Circuit to release the audio recording of a criminal defendant's sentencing hearing. Publisher contended that the recording was a public record. The Second DCA disagreed and denied the petition. Fla.R.Jud.Admin. 2.420 governs access to records of the judicial branch. "Court records" are defined to include "contents of the court file, including . . . electronic records, videotapes, or stenographic tapes of court proceedings." The audio recordings were made as part of the circuit's digital electronic court reporting system, which is used in some proceedings rather than a stenographic court reporter. These recordings capture all of the sounds made in the courtroom, not just the statements made in the course of the official proceedings. The recordings are used to create a record of the "court proceedings," but they are not the record of the proceedings. "Accordingly, we conclude that the audio recording created by the digital electronic court reporting systems is not, in and of itself, an 'electronic record' of the proceedings."
RULES AND ETHICS OPINIONS Rule changes generally. See “Rule Changes (Adopted and Proposed)” section at beginning of materials.
Florida Bar Board of Governors approves Florida Ethics Opinion 07-2 concerning outsourcing legal work to foreign countries. See discussion in “Law Firms” section.
Florida Bar Professional Ethics Committee approves Florida Ethics Opinion 07-3 regarding confidentiality obligations of lawyer who receives unilateral communications from would-be client. See discussion in “Confidentiality and Privileges” section.
Florida Bar Board of Governors reviews Proposed Advisory Opinion 90-6 (Reconsideration) addressing duties of lawyer whose criminal defense client is proceeding under false name. See discussion in “Candor Toward the Tribunal” section.
TRIAL CONDUCT Despite prosecution’s improper argument that one judge called "outrageous," Third DCA affirms criminal conviction. Williams v. State, 10 So.3d 218 (Fla. 3d DCA 2009). See discussion in “Professionalism” section.
UNAUTHORIZED PRACTICE OF LAW Florida Supreme Court refuses reinstatement for a lawyer who engaged in the "practice of law" while suspended; definition of practicing law discussed. Florida Bar re: Michael Howard Wolf, 21 So.3d 15 (Fla. 2009). In 2006 Lawyer was suspended for negligently misappropriating trust funds. Lawyer later petitioned for reinstatement. While suspended he performed paralegal work for two lawyers and also earned "substantial sums as a private consultant with a consulting business he created to advise arcades." Before his suspension Lawyer had practiced primarily in the gaming law area. The referee presiding over the reinstatement hearing found that Lawyer's financial situation was unstable, that he owed a substantial sum to the IRS, that he was "horrible at financial management," and that he failed to take a law office management course for which he had enrolled. Additionally, while suspended Lawyer cashed checks that were made out to him but were to be used to pay for the legal services of an attorney, and did not keep adequate financial records for his consulting business. The referee recommended that Lawyer be reinstated with conditions. The Bar opposed reinstatement and petitioned for Supreme Court review. The Court agreed with the Bar and denied reinstatement. Contrary to the referee's conclusion, the Court concluded that Lawyer's activities while suspended constituted the practice of law. "[A]lthough [Lawyer] informed his clients that he could not dispense legal advice, he was not simply identifying applicable statutes and ordinances with regard to opening arcades. In fact, [Lawyer] testified that he would find the ordinances applicable to the jurisdiction in which an arcade was located and admittedly provided this advice based on his legal skill, which is greater than that possessed by the average citizen. Further, as stated above, [Lawyer] gave advice on opening arcades, reported on changes in the law applicable to this area, reviewed leases, researched ordinances applicable to new arcade sites, and consulted with a representative of a state attorney’s office on the proper interpretation of gaming law for an attorney’s criminal client. Based on the definition in [State ex rel. Florida Bar v.] Sperry [140 So.2d 587, 591 (Fla. 1962)], trading on one’s enhanced legal skill and knowledge to advise clients on how to legally proceed with a business transaction and on changes in the law based on statutory research and legal interpretation is the province of licensed attorneys. Accordingly, the referee’s conclusion that [Lawyer]’s actions did not constitute the practice of law is erroneous and is disapproved." The Court further concluded that Lawyer had deposited funds that "were certainly in the nature of trust funds" into his business account on which a lien later was placed. Lawyer's "poor judgment in accepting, managing, and depositing these checks, along with the fact that his financial management skills are 'horrible,' demonstrates his financial irresponsibility, a disqualifying factor in reinstatement proceedings."
Florida Supreme Court disbars lawyer for two instances of engaging in unlicensed practice of law. Florida Bar v. D'Ambrosio, __ So.3d ___, 34 Fla.L.Weekly S621 (Fla., Nos. SC07-1369, SC08-256, 12/12/2009), 2009 WL 3763081. The Court disbarred Lawyer for two separate instances of engaging in the unlicensed practice of law, each of which involved significantly different circumstances. The "Contempt Case" concerned Lawyer's practice of law in Florida while suspended from the Florida Bar, and the "Disciplinary Case" involved Lawyer practicing law in Illinois where he was not licensed. Contempt Case. Lawyer was suspended, but continued to occupy his former law office. Lawyer wrote a letter to a California attorney. The first sentence "stated: 'I am counsel to counsel to Anglo Bio Tran' and affirmatively stated that he had provided legal opinions about the sufficiency of a complaint filed against Anglo Bio Tran and had discussed the legal course he would advise for his 'client' in the extant or contemplated litigation." The letter provided legal opinions about the "client's" case. The referee found that Lawyer had engaged in the practice of law while suspended, and the Court agreed. Disciplinary Case. While still a member in good standing of the Florida Bar, Lawyer wrote two letters on behalf of a Florida client to an Illinois attorney. Lawyer was not admitted in Illinois. The letters were "in contemplation of a legal malpractice action" by Lawyer's Florida client against the Illinois attorney. Lawyer also "researched Illinois law on the Internet" and assisted his Florida client in filing and amending an Illinois civil action against the Illinois attorney. The client's complaint showed the client's address as being the same as Lawyer's office address. The referee found that Lawyer engaged in the unlicensed practice of law in Illinois and thus recommended that he be found guilty of violating Rule of Professional Conduct 4-5.5(a). Additionally, "[Lawyer] knowingly and intentionally permitted, and even assisted, [the Florida client] in filing a false pleading in Illinois (by allowing [the Florida client] to use [Lawyer]'s law office address as [the client]'s address in a civil action)." The referee recommended that [Lawyer] be found guilty of violating Rules of Professional Conduct 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and 4-8.4(d) (conduct in connection with practice of law that is prejudicial to administration of justice). The Supreme Court approved the referee's findings and recommendation in the Disciplinary Case, but the Court's analysis left it somewhat unclear as to the line between permissible and impermissible conduct. Lawyer's two letters to the Illinois attorney "standing alone do not constitute a violation. However, [Lawyer] engaged in further conduct. The record and testimony establish that [Lawyer] was not licensed to practice law in Illinois and did not seek pro hac vice status. [Lawyer] admitted researching Illinois law on the Internet to work on this case. In addition, the record demonstrates that while [Lawyer] was suspended, [Lawyer] used a paralegal so he could assist [the Florida client] to proceed ‘pro se’ in the Illinois matters."
WITHDRAWAL Lawyer appointed from "Involuntary Appointment List" to represent defendant in complex RICO prosecution should have been permitted to withdraw. Hagopian v. Justice Administrative Commission, 18 So.3d 625 (Fla. 2d DCA 2009). Defendant and alleged fellow gang members in Manatee County were charged with racketeering under RICO statutes. Due to a conflict of interest, the circuit court could not appoint the public defender or the Office of Criminal Conflict Civil Regional Counsel to represent Defendant. The court created an "Involuntary Appointment List." Lawyer was on the list, and was appointed to represent Defendant. Lawyer’s motion to withdraw was denied. Concerned about the effect of the appointment on Lawyer's practice but viewing the need to find counsel for Defendant as paramount, the court fashioned a "detailed plan" under which Lawyer would be compensated for representing Defendant. Lawyer then petitioned the Second DCA for a writ of certiorari, which was granted. The court observed that RICO actions such as the one facing Defendant are extremely complex and burdensome, and that "the practice of law has changed dramatically since the 1930s when the fictional Atticus Finch practiced law" (and defended an unpopular accused without mention of a fee). The court concluded that Lawyer's continued representation of Defendant would result in violation of the Rules of Professional Conduct. See Rule 4-6.2(a). "Here, the undisputed evidence established that the involuntary appointment to [Defendant]'s case would make it impossible for [Lawyer] to handle the legal business of his existing clients and provide them with competent representation. Such derelictions by [Lawyer] would result in the violation of rules 4-1.1, 4-1.2(a), 4-1.3, and 4-1.4. Under these circumstances, [Lawyer] established good cause for moving to withdraw from [Defendant]'s case." (Citations omitted.) Additionally, the continued representation would place "an unreasonable financial burden on" Lawyer. See Rule 4-6.2(b). "When a lawyer is required to work exclusively on a single client's business for an extended period of time, work for existing clients must generally be postponed or referred to other attorneys. While the lawyer is working exclusively on one client's affairs, it is difficult – if not impossible – to accept new business."
Law firm's effort to withdraw from case in response to motion to disqualify may not remedy problem. Lewis v. Nical of Palm Beach, Inc., 10 So.3d 159 (Fla. 4th DCA 2009). See discussion in “Conflicts of Interest” section.
Regional Conflict Counsel has no standing to object to Public Defender's motion to withdraw from case on conflict grounds. Johnson v. State, 6 So.3d 1262 (Fla. 4th DCA 2009). See discussion in “Conflicts of Interest” section. |
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