sunEthics 

Covering legal ethics, judicial ethics, bar admissions in Florida, Tennessee, and nationally.  See our Subject Index to past postings.

Florida - CANDOR TOWARD THE TRIBUNAL

Third DCA affirms order denying trial judge’s disqualification, and cautions counsel regarding ethical obligation of candor toward tribunal. [Added 11/13/18]
 Lawyer represented Defendant in a mortgage foreclosure case.  Lawyer argued that Plaintiff Bank lacked standing because it could not prove that it was holder and owner of the note.  The court rejected this argument, noting that the law only requires that the bank be the holder or owner of the note.  Despite this, Lawyer “continued to press this position.”  The court directed Lawyer to move on and told him that he would be held in contempt if he persisted.
 Lawyer then “orally moved for a continuance so he could prepare a written motion for disqualification of the trial judge, contending that the trial judge had ‘prejudged’ the case.”  The denied the continuance at that point.  A recess was taken soon thereafter, with the judge advising Lawyer that he could prepare and submit a written disqualification motion that the court would address when the trial resumed.  When the trial resumed, Lawyer asked for addition time to complete the motion.  The judge granted that request, but denied a subsequent request for more time.  When the written motion was later presented to the judge, it was denied as legally insufficient.
 Lawyer appealed, arguing that the court erred in denying the disqualification and abused its discretion in not granting a continuance.  The Third DCA affirmed.
 The motion to disqualify the judge was legally insufficient because “it was premised on nothing more than its disagreement with an adverse legal ruling, and failed to establish that the court’s actions ‘would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.’”  (Citation omitted.)
 Regarding the continuance, Lawyer argued that “because counsel is not permitted to make an oral motion for disqualification during trial, the trial court was required to grant a continuance to allow him to file a written motion.”  This was incorrect as well, because Fla.R.Jud.Admin. 2.330(e) permits an oral motion that is subsequently “promptly reduced to writing.”
 Finally, the Third DCA affirmed the trial court’s ruling that the bank had standing to foreclose on the note.  The appeals court pointed out that it had recently addressed that very issue in HSBC Bank USA, N.A. v. Buset, 241 So.3d 882 (Fla. 3d DCA 2018), an opinion that Defendant “failed even to acknowledge, much less address” in its briefs.  The court observed that “[t]his is all the more curious given the fact that counsel for [Defendant] was also counsel of record for Buset in that appeal, so it is difficult to fathom how this failure could be attributed to mere oversight.  We take this opportunity to remind [Lawyer] that the Rules of Professional Conduct mandate candor toward the tribunal.  See Rule Regulating the Florida Bar 4-3.3(a)(3), which provides that ‘[a] lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.’”   Aquasol Condominium Ass’n, Inc. v. HSBC Bank USA, __ So.3d __ (Fla. 3d DCA, No. 3D17-352, 10/31/2018) (on denial of rehearing), 2018 WL 5733627.


First DCA criticizes counsel’s lack of candor in workers’ compensation appeal.  [Added 6/5/16]
 After an adverse order on a constitutional challenge to the workers’ compensation attorney’s fee statutes, claimant’s trial counsel withdrew and claimant voluntarily dismissed the case.  The employer/carrier was granted prevailing-party costs.  Through his trial counsel, claimant appealed the cost order.  Counsel, however, “attempted to use this cost appeal to gain a second presentation of his argument concerning the retainer and fee order and, at every opportunity Appellant’s counsel had prior to filing the initial brief, they failed to make it clear to this court that the appeal solely involved the fee order.”
            The First DCA affirmed the cost order and reprimanded claimant’s counsel for lack of candor to the court.  “In our original opinion in this case, we sanctioned Appellant’s counsel for their lack of candor by requiring them to pay the fees incurred by Appellees in this appeal.  Upon reconsideration, however, we determine that the admonishment in this opinion is a sufficient sanction.” O’Connor v. Indian River County Fire Rescue / Johns Eastern Company, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D15-4986, 8/2/2016) (on rehearing), 2016 WL _______.


Party’s “foolish” and “astounding negligence” regarding missing promissory note might warrant sanctions, but does not rise to level of fraud upon the court.  [Added 5/12/15] -- Deutsche Bank National Trust Co. v. Avila-Gonzalez, 164 So.3d 90 (Fla. 3d DCA 2015).

 
Second DCA indicates that one party had no standing to challenge authority of lawyer who appeared for opposing party. [Added 12/26/14] -- Trans Health Management Inc. v. Nunziata, 159 So.3d 850 (Fla. 2d DCA 2014). 


Lawyer’s failure to confess error regarding the scope of a disqualification order against opposing counsel is treated as “a self-evident violation” of Rule of Professional Conduct 4-3.3(a)(3) and leads to sanctions. [Added 11/29/14] -- Lieberman v. Lieberman, 160 So.3d 73 (Fla. 4th DCA 2014). 

Third DCA finds fundamental error and reverses judgment obtained through material misrepresentations by defendants’ counsel.  [Added 11/21/13]  -- BAC Home Loans Servicing, Inc. v. Headley, __ So.3d __ (Fla. 3d DCA, No. 3D12-1560, 11/20/2013), 2013 WL 6097221.

Eleventh Circuit concludes that law firm did not ghostwrite bankruptcy documents in violation of the Rules of Professional Conduct.  [Added 9/18/13]  -- In re Hood, 727 F.3d 1360 (11th Cir. 8/29/2013).

Lack of candor toward tribunal thrusts "dagger into the heart of the rule of law."  [Added 9/16/13]  -- Briarwood Capital v. Lennar Corp., 125 So.3d 291 (Fla. 3d DCA 9/11/2013).

On rehearing, Fourth DCA affirms trial court’s dismissal of case for fraud on the court.  [Added 8/12/13] -- Herman v. Intracoastal Cardiology Center, 121 So.3d 583 (Fla. 4th DCA 8/7/2013) (on rehearing).

Court abused discretion in dismissing complaint based on alleged fraud on the court.  [Added 12/31/12]  --  Rocka Fuerta Construction Inc. v. Southwick, Inc., 103 So.3d 1022 (Fla. 5th DCA 2012).

Third DCA discusses need for candor to the court in ex parte proceedings.  [Added 5/11/12]  --   Velasquez v. Ettenheim, 89 So.3d 981 (Fla. 3d DCA 2012).

Fourth DCA criticizes lawyer for an "egregiously false" statement in reply brief.  [Added 5/2/11]  --  Pamphile v. State, 65 So.3d 107 (Fla. 4th DCA 2011).

Florida Supreme Court disbars rather than suspends lawyer who practiced while suspended, with 3 concurring justices criticizing conduct of Bar prosecutor.  [Added 2/5/11]  --   Florida Bar v. Lobasz, 64 So.3d 1167 (Fla. 2011).

Florida Bar Board of Governors adopts advisory opinion allowing lawyers to represent criminal defendant who is proceeding under false name.  [Added 6/3/09] 
 At its May 2009 meeting the Florida Bar Board of Governors adopted a revised version of Florida Ethics Opinion 90-6 (Reconsideration).  The headnote accompanying the opinion describes its 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 addresses 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.]    Florida Ethics Opinion 90-6 (Reconsideration) as adopted by the Board differed from the version previously approved by the Florida Bar Professional Ethics Committee, which would have interpreted Rule 4-3.3, Florida Rules of Professional Conduct, to require the lawyer to disclose that the client was proceeding under a false name.  The opinion adopted by the Board 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.

"High-low" agreement not prohibited as matter of public policy and should not have been disclosed to jury.  [Added 3/15/07]  --  Gulf Industries, Inc. v. Nair, 953 So.2d 590 (Fla. 4th DCA 2007).

Lawyer sanctioned for failing to inform appellate court that matter on appeal had been settled.  [Added 2/28/05]  --  Merkle v. Guardianship of Jacoby, 912 So.2d 593 (Fla. 2d DCA 2005).