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Florida - LAW FIRMS
Second DCA denies lawyer’s petition for writ of certiorari that related to breach of contract suit arising from letter of protection. [Added 6/26/24]
Lawyer Bolliger represented Client Frinzi in a personal injury case. Bolliger and Frinzi signed a letter of protection (“LOP”) in favor of treating physician Tolli providing that Bolliger “agree[d] to withhold monies from settlement . . . in [his] client’s case in an amount sufficient to cover any unpayed [sic] balances for services rendered by [Dr. Tolli]” and also agreed to satisfy Tolli’s bill “prior to disbursing any proceeds to [Ms. Frinzi] personally.”
The recovery in the suit was less than Frinzi’s total medical bills. Bolliger asked Tolli to accept a reduced amount. Tolli agreed, expecting to receive $21,492. More than a year later Bolliger filed an interpleader action for Frinzi against her medical providers, two of whom allegedly had not agreed to the pro rata reduction proposed by Bolliger. Tolli, among others, did not respond to the complaint. Later Tolli explained that he was relying on the LOP. Bolliger got a clerk’s default against the medical providers who did not respond to the suit.
When the court issued an order in the interpleader action, it did not provide anything for Tolli. He sued Bolliger and Frinzi for breach of contract based on the LOP. Bolliger moved for summary judgment on the basis that Tolli had failed to join indispensable parties (the other medical providers). The court denied the motion. Bolliger petitioned the Second DCA for a writ of certiorari.
The appellate court denied the petition. Bolliger failed to show irreparable harm that could not be remedied on appeal. Tolli’s breach of contract claim was based on the LOP, and he sued the other parties to that agreement. The court summarized: “[T]he LOP required Attorney Bolliger ‘to withhold monies from settlement or court ordered award in [his] client’s case in an amount sufficient to cover any unpayed [sic] balance for services rendered by [Dr. Tolli] to [Ms. Frinzi], and to pay off those balances prior to disbursing any proceeds to [Ms. Frinzi] personally.’ Dr. Tolli alleges that Attorney Bolliger violated these obligations. None of the ‘other entities’ are indispensable to resolving this contract dispute.” Frinzi v. Thomas C. Tolli, M.D., P.A., __ So.3d __ (Fla. 2d DCA, No. 2D2023-2008, 6/7/2024), 2024 WL 2868780.
Court erred in granting summary judgment against law firm for allegedly breaching settlement agreements to which firm was not party. [Added 3/18/24]
Lawyer and his law firm (collectively, “Hanson”) were sued by “Businesses” based on alleged violations of settlement agreements from 2 matters in which Hanson represented its clients against Businesses. The settlement agreements provided that the parties, “their counsel,” and “their attorneys” would not engage in certain actions, including authoring blog posts about the parties or the litigation. Hanson was a non-party, and did not sign either settlement agreement. When Hanson later authorized a blog post about the litigation that was critical of one of the Businesses, the Businesses sued Hanson – but not his clients – alleging breach of the settlement agreements.
The trial court granted Businesses’ motion for summary judgment, reasoning that “Florida law does not require a signature as a prerequisite to be bound by a contract” and Hanson’s conduct breached the confidentiality and non-dissemination provisions of the agreements. Hanson appealed.
The Fourth DCA framed the “sole issue” in the appeal as “a narrow one: whether Hanson, a non-signatory attorney to the settlement agreements that his clients signed, is bound by the settlement agreements because they include provisions purporting to bind Hanson specifically by name or by his role as ‘counsel’ or ‘attorney.’” Applying contract law, the court answered in the negative and reversed.
The court noted that, “Florida law recognizes that a non-signatory can be bound by a contract, but we have yet to find a Florida case that binds a non-signatory attorney to the substantive provisions within a client’s settlement agreement” (emphasis by court). The court found persuasive some out-of-state cases, such as Milliner v. Mutual Securities, Inc., 2021 WL 2645793 (N.D. Cal. June 28, 2021), which “rejected the plaintiff’s argument that the attorney consented to being bound via his conduct of ‘negotiating the agreement, advis[ing] his clients to sign the agreement, and then accept[ing] the benefits of the agreement.’”
The Fourth DCA concluded: “Because Hanson did not sign the settlement agreements, is not named as a party, and did not manifest consent to be bound, we find that he is not bound, and the trial court erred by granting summary judgment in Businesses’ favor in their breach of contract lawsuit that solely named Hanson.” In a footnote, the court expressly stated that it was not addressing “the ethical implications of Hanson’s conduct,” as this was not raised as an issue below. Hanson v. National Legal Staffing Support, LLC, __ So.3d __ (Fla. 4th DCA, Nos. 4D2022-3194, 4D2022-3438, 2/28/2024), 2024 WL 820025.
Lawyer who previously worked for law firm is denied fee award in action for unpaid wages because she did not prove she was firm “employee” as opposed to independent contractor. [Added 3/7/24]
Lawyer sued Law Firm alleging that Law Firm had hired her to work on personal injury cases and failed to pay her for her work on at least one of those cases. She alleged that she had been an employee of Law Firm and the unpaid amounts were “wages.” Lawyer also sought fees under F.S. 448.08, which states that the court “may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.”
Law Firm accepted Lawyer’s proposal for settlement and signed a general release in which neither party admitted wrongdoing or liability. Lawyer moved for fees, claiming that she was the prevailing party under F.S. 448.08. Law Firm responded by asserting that, even if she did “prevail,” Lawyer failed to demonstrate that she was an employee rather than an independent contractor. Law Firm presented evidence to support its claim that Lawyer was an independent contractor.
The trial court held a hearing on the fee claim, and awarded “several thousand dollars in fees to each” party. Law Firm appealed. The Second DCA reversed. The court pointed out that “only employees may recover fees under section 448.08; independent contractors may not.” The appellate court reversed so the trial court could make a finding on whether Lawyer had been an employee. “[N]otwithstanding that [Lawyer] has prevailed on her common law claim, she cannot recover statutory fees under section 448.08 without an additional factual finding that she was an employee of” Law Firm. Kovar Law Group, PLLC v. Jordan, __ So.3d __ (Fla. 2d DCA, No. 2D23-279, 2/23/2024), 2024 WL 735186.
Fourth DCA determines that law firm’s fee agreement is not ambiguous, resulting in partial reversal of judgment in firm’s suit for fees. [Added 1/27/23]
Law Firm sued Clients for unpaid fees allegedly due under its fee agreement. The operative language in the agreement provided: “As payment towards your retainer, you have paid an initial retainer in the amount of $3,000.00. This is a non-refundable engagement fee. It also will be depleted by a $500.00 monthly fee against it. When the initial retainer is depleted, an additional retainer may be required, and you will be billed on an hourly basis for work performed. . . .” (Italics added by court.)
Clients paid the initial $3,000 fee, and for the first 6 months of the representation Law Firm charged $500 against the fee. During those first 6 months, the Firm also billed Clients separately on an hourly basis for work performed. The representation continued for some time after the initial 6 months. Clients never paid anything but the initial $3,000, so Law Firm withdrew from the case and filed a breach of contract suit against Clients.
The suit was tried and the Firm was awarded an amount that “included attorney’s fees incurred during the first six months of representation in the foreclosure action beyond the $3,000 retainer fee. The primary point of contention at trial was whether, under the terms of the retainer agreement, Law Firm was permitted to bill Clients in excess of the $3,000 retainer fee for the first six months of representation.” Law Firm argued that the $3,000 fee was essentially an installment payment plan, with the $500 monthly charge applied to the initial retainer fee. Clients contended that the agreement provided for a flat $500 per month for the first 6 month, then hourly billing thereafter.
The trial court found that the agreement contained a latent ambiguity, but entered a judgment for Law Firm that included hourly fees during the first 6 months of representation.
Clients appealed, arguing that the agreement provided that the $3,000 fee for the first 6 months was the entire fee for those months, “not an installment toward the total fee” as posited by Law Firm. The appeals court agreed and reversed in part. “We agree with Clients and hold that the parties’ agreement unambiguously provided for a flat fee of $500 per month for the first six months charged against the $3,000 retainer. This interpretation is also supported by the following sentence in the agreement: ‘When the initial retainer is depleted, an additional retainer may be required, and you will be billed on an hourly basis for work performed.’ (emphasis added [by court]). Use of the word term ‘[w]hen’ indicates a moment in time, meaning Clients would begin being billed hourly when the initial retainer is depleted. . . . Accordingly, we reverse the portion of the final judgment awarding Law Firm attorney’s fees for the first six months of representation.”
The court affirmed the judgment awarding the Firm fees incurred after the first 6 months of the representation. Muentes v. Bruce S. Rosenwater & Associates, P.A., __ So.3d __ (Fla. 4th DCA, No. 4D22-356, 1/11/2023), 2023 WL 151279.
Arbitration award in favor of law firm in attorney-client dispute upheld because arbitrator did not exceed authority or modify parties’ agreement. [Added 12/1/22]
Client hired Law Firm to represent him in business litigation. The engagement agreement provided that Client would pay a contingent fee for any cash or non-case sum recovered, and that any disputes would be resolved by arbitration. The underlying litigation was settled with the opposing party agreeing to pay Client $2.45 million and transfer a 2-acre parcel of land to him. After signing the settlement agreement, however, Client directed Law Firm to contend that the agreement was unenforceable. That contention was unsuccessful.
Client then hired new counsel, and Law Firm filed for arbitration to collect its fee (which Client had refused to pay). Client responded with a malpractice counterclaim. The arbitrator rejected Client’s malpractice allegations and ruled that Law Firm was entitled to its contingent fee on the $2.45 million recovery.
As for the fee on the land parcel acquisition, Client contended that the property should be valued at its alleged worth at the time it was transferred to him ($50,000), rather that the $2 million it was worth at the time of settlement. Client also claimed that “he did not have to pay the Law Firm a contingency fee based on the value of the two-acre parcel because the Engagement Agreement gave him the option of giving the Law Firm an undivided interest in the property equal to the applicable contingency percentage.” Client also contended that the arbitrator exceeded his authority and modified the parties’ agreement.
The court rejected the exceeding-authority contention. The arbitration provision in the engagement agreement encompassed “any dispute ‘arising from or relating to’” the representation.
As to the value of the parcel, the court noted relevant language in the engagement agreement and concluded that, at most, the arbitrator permissibly interpreted it.
Finally, as to the argument that Client had the option to pay the contingent fee on the parcel or give Law Firm an interest in it, the court observed that the arbitrator “recognized that at no time prior to the Law Firm bringing its claim, which was over one year after settlement, did [Client] elect any option; he simply refused to pay.” Metalonis v. Boies Schiller Flexner LLP, __ So.3d __ (Fla. 3d DCA, No. 3D21-2249, 11/10/2022), 2022 WL 16841536.
Third DCA affirms dismissal of suit against law firm seeking return of non-refundable fee. [Added 11/17/22]
Gonzalez contracted with Law Firm to represent his nephew in a criminal matter for a fee of $12,500. Gonzalez paid $7500 to the Firm to begin representation, but later sought a refund of $5000. Law Firm refused, asserting that the fee was non-refundable per the retainer agreement. Gonzalez then sued a principal in the Firm, Faccidomo.
Faccidomo moved to dismiss, contending both that Mr. Gonzalez’s complaint incorrectly listed Mr. Faccidomo individually as a defendant instead of his law firm, and that the contract incorporated into the complaint conclusively established that the fees were non-refundable. The trial court dismissed the action with prejudice.
Gonzalez appealed. The Third DCA affirmed. “The receipts attached to the complaint indicate that the fee payments were made to the law firm Ratzan & Faccidomo, LLC, and not to Mr. Faccidomo individually. Any claim for a refund is properly against the firm and not Mr. Faccidomo.” Gonzalez v. Faccidomo, __ So.3d __ (Third DCA, No. 3D22-129, 10/12/2022), 2022 WL 6832238.
When lawyer leaves law firm and contingent fee client elects to be represented by departing lawyer pursuant to Rule 4-5.8 before contingency occurs, firm’s fee is based on quantum meruit principles under Rosenberg v. Levin rather than on partnership law under Frates v. Nichols. [Added 6/16/21]
The Scherers hired lawyer Patsko, a partner with Austin Roe Basquill, P.A. (“ARP”) to represent them on a contingent fee basis in a personal injury case. ARP was organized as a professional service corporation under Chapter 621, Fla. Stat. Not long after ARP was retained and before the contingency occurred, Patsko left ARP. Pursuant to Rule 4-5.8, Patsko and ARP sent a joint letter notifying the Scherers of their rights to continue with ARP or hire Patsko at his new firm. They responded that they would retain Patsko’s new firm, and did so on a new contingent fee contract.
ARP, now known as “Austin Roe,” filed a charging lien claiming that Austin Roe “was entitled to ‘the entire contingency fee in [the Scherers’ lawsuit], less any amount owed to Mr. Patsko under his [shareholder] agreement with [ARP]’ because Mr. Patsko owed fiduciary duties of loyalty and care to ARP as a shareholder, officer, and director of ARP, citing Frates [v. Nichols, 167 So. 2d 77 (Fla. 3d DCA 1964)] and its progeny.” Austin Roe alternatively sought the “reasonable value of its services” for its representation of the Scherers before they hired Patsko’s new firm.
The Scherers’ case settled and was dismissed with prejudice, with the trial court reserving jurisdiction to address Austin Roe’s charging lien. The Scherers and Austin Roe filed competing summary judgment motions. The Scherers’ motion argued that the fee award to Austin Roe was controlled by Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982), and Austin Roe argued for application of Frates. The trial court granted an Austin Roe motion to dismiss the Scherers from the matter because they lacked standing after the underlying case was dismissed, and also granted Austin Roe’s summary judgment motion after “determining that Frates should govern this fee dispute.” The Scherers appealed.
The Second DCA reversed. Austin Roe’s charging lien was based on a contingent fee contract ARP had with the Scherers, and so they “had every right to dispute the enforcement of Austin Roe’s attorney’s fee charging lien and, therefore, had standing.” The trial court also erred in relying on Frates to find that the portion of the fee going to Patsko was limited to his shareholder interest in ARP.
Rule 4-5.8 did not exist when Frates was decided. The rule required Patsko (as a lawyer leaving a law firm) and ARP (as the firm the lawyer was leaving) to notify clients being represented by Patsko that they had 3 options (i.e., stay with the firm, go with Patsko, or hire other counsel). The appeals court concluded that “ARP was discharged by the Scherers’ decision following the rule 4.5.8 letter and that Mr. Patsko’s obligations to represent the Scherers on behalf of ARP were also discharged – allowing for the entry of the contingency fee agreement with Mr. Patsko’s new firm, which was in effect when the contingency occurred.” Under Rosenberg, a law firm discharged without cause from a contingent fee case before the occurrence of the contingency is entitled to a fee based on quantum meruit (capped by the contract amount).
While Frates was grounded in partnership law, the Second DCA noted that Rule 4-5.8 “makes no distinction between an equity shareholder or partner from that of a nonequity shareholder or partner but provides that the client has the ultimate right to choose who will continue to represent them regardless of whether the client's lawyer leaves the law firm or the law firm dissolves.”
The Scherers discharged ARP before the contingency occurred and chose to hire Patsko’s new firm under a new contract. “Therefore, given the interplay between rule 4-5.8 and Rosenberg, ARP is entitled to no more than an award of attorney’s fees based upon quantum meruit as limited by the terms of the contingency fee agreement, where the Scherers terminated ARP before the contingency occurred” (emphasis by court).
The court went on to discuss, and reject, Austin Roe’s contention that Frates “as expounded by Buckley Towers Condo., Inc. v. Katzman Garfinkel Rosenbaum, LLP, 519 F.App’x 657 (11th Cir. 2013)” controlled the fee award. Austin Roe wanted the court to rule that “the contingency fee agreement between the Scherers and ARP survived based upon Mr. Patsko’s continuing fiduciary duties to his old firm, thereby making the subsequent contingency fee agreement that the Scherers entered into with Mr. Patsko’s new firm a nullity.” The court declined to do this. In Frates, the contingent fee was earned after the law firm originally hired dissolved, and so the question was how to divide it among the partners of the dissolved firm – including the partner who left the firm, triggered its dissolution, and wound up the case for the partnership. Frates, and all Florida state-court cases applying Frates, have involved the dissolution of a law firm. In this case, however, ARP did not dissolve and instead was discharged. Patsko did not wind up the case for his old firm, but handled it for his new firm that the Scherers hired after discharging ARP.
Further, Buckley Towers, which extended Frates “beyond partnership dissolution cases to cases involving nondissolution and corporate-structured cases,” was not persuasive to the court. The court was not bound by its holding (nor by another case relied on by Austin Roe, In re Health Support Network, Inc., 585 B.R. 202 (Bankr. M.D. Fla. 2018)). In fact, the court viewed the actual holding in Buckley Towers as being “in essence” based on Rosenberg.
The court also criticized Buckley Towers for not adequately considering that “the fiduciary duty that is the underpinning of Frates arises solely because of the partnership’s dissolution, where a partner owes a fiduciary duty to the partnership to wind up the assets and affairs of the dissolved partnership.” That duty was imposed by partnership law (in Florida, Chapter 620, Fla. Stat.), but the court noted that “[i]mportantly, here is no statutory corollary to chapter 620’s fiduciary duty owed by partners to one another under chapter 621, which governs shareholder duties in the corporate context.” The court expressly stated that it did not decide whether Frates remained good law for partnerships, but “readily conclude[]d that it cannot be extended to the facts of this professional service corporation case based on Buckley Towers.”
The court summarized: “There is a key difference between when a law firm dissolves versus when a lawyer decides to leave a firm. In the former situation, a client does not have the option of remaining with the dissolved law firm that no longer exists. However, when a client’s lawyer leaves a firm, that client is granted the exclusive right to choose the lawyer who will continue representing the client and that choice includes the situation that confronts us – continuing with the departing lawyer. Gone are the days where a lawyer picks up in the middle of the night and takes the clients’ files to a new firm. Rosenberg, the only precedential case to which the instant facts are bound, and rule 4-5.8 both clearly establish that clients hold the right to decide where their files travel, and in exercising that right, clients may terminate the initial lawyer or law firm without cause before the contingency fee arises. When this occurs prior to the contingency, the discharged law firm is entitled only to an award vis-à-vis quantum meruit.”
As a final note, the court observed that the fact that Patsko’s voluntary departure from ARP set the series of events in motion was “a distinction of no matter.” Scherer v. Austin Roe Basquill, P.A., __ So.3d __ (Fla. 2d DCA, No. 2D20-1116, 6/16/2021), 2021 WL 2446947.
Failure to have contingent fee agreement signed by client is fatal to law firm’s breach of contract and tortious interference claims. Added 4/23/21]
An affiliate of a lawyer and medical referral service (“Client”) considered retaining Law Firm to represent it in defense of a federal suit filed by an insurance company over thousands of personal injury protection (“PIP”) benefit claims. Law Firm sent Client a draft contingent fee agreement. Client responded with proposed edits. Negotiations on the proposed fee agreement were conducted by email but never resulted in a signed fee agreement. While admitting that no contingent fee agreement was signed by Client, Law Firm nevertheless contended that “the agreement was nevertheless fully memorialized and agreed to in the parties’ email exchanges.”
During the course of the federal suit, Law Firm filed notices of appearances for Client in many individual county court suits against the insurer for PIP benefits. Allegedly this was done at Client’s direction. When the federal court case was settled, Client dismissed the state court suits.
Law Firm then sued Client, asserting it was deprived of contingent fees in the state court cases by a conspiracy involving Client and others (including lawyers, law firms, a former principal of Client’s predecessor, and the insurance company) and that the defendants tortuously interfered with Law Firm’s contractual rights with Client. Law Firm and the other defendants answered that the contingent fee agreement relied on by Client was never signed by Client.
The trial court dismissed Law Firm’s complaint as to the breach of contract and tortious interference claims because there was no signed fee agreement. Although the court granted leave to amend the complaint so that Law Firm could assert unjust enrichment claims, Law Firm chose to appeal the dismissal order instead.
The Fourth DCA affirmed. Florida case law requires the following in order for a contingent fee agreement to be valid: “(1) the agreement must be reduced to a written contract; (2) each participating attorney or law firm shall sign the contract or agree in writing to be bound by the terms of the contract with the client; (3) each attorney shall agree to assume the same legal responsibility to the client for the performance of the services in question; and (4) the client shall be furnished with a copy of the signed contract.” (Emphasis by court.) These requirements are based on Rule 4-1.5(f)(2). A contingent fee that does not satisfy the requirements of Rule 4-1.5(f)(2) is void as against public policy.
The appeals court concluded: “We hold that the trial court was correct in finding that the law firm failed to state a claim for breach of contract because the client did not sign the contingent fee agreement as required by Rule Regulating the Florida Bar 4-1.5(f)(2). While the law firm argues that the client’s failure to sign the agreement was only a technical deficiency, this court’s precedent makes clear that the failure to obtain a client’s signature on a contingent fee agreement, or otherwise agree with the client, in writing, to be bound by the terms of the contract, violates Rule 4- 1.5(f)(2). . . . When a contingent fee agreement does not meet the requirements of Rule 4-1.5(f)(2), courts have held that agreement is void as against public policy.” (Citations omitted.)
Further, dismissal of the tortious interference claim was affirmed because “[a] contingent fee agreement that is void due to noncompliance with Rule 4-1.5(f)(2) cannot be used as a basis for a tortious interference action. . . . Without a valid contract, the law firm’s claim tortious interference fails as a matter of law.” (Citations omitted.) Font & Nelson, PLLC v. Path Medical, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D19-3428, 4/21/2021), 2021 WL 1556642.
Despite circuit court approval of contract, one firm’s suit seeking part of $3.16 million in fees from another firm fails because contract between firms did not comply with Bar rules. [Added 11/18/20]
Client signed a contingent fee agreement with the “Gerber” law firm. Later that day, Client and his wife signed a contingent fee agreement with Gerber and another firm, “Swope.” This agreement set forth a division of fees and responsibilities between the 2 firms. The total fee was to be 40% of any recovery over $100,000, with Gerber getting 62.5% and Swope getting 37.5%. This contract was approved by the circuit court.
As trial approached, Gerber realized it was not fully prepared. Swope declined Gerber’s request to assume more trial responsibility. Gerber then approached another firm, “Harmon.” Client discharged Swope and signed a new contract with Gerber and Harmon. Under this contract, fees on the recovery up to $1 million would be split 75% to Gerber and 25% to Harmon, with the 2 firms sharing equally in fees on any recovery over $1 million. The contract did not detail the services each firm would provide as justification for the division of fees. Additionally, “the Agreement did not specify that Gerber and Harmon ‘agreed to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved,’ see rule 4-1.5(f)(2), or that ‘each lawyer assumes joint legal responsibility for the representation,’ see rule 4-1.5(g)(2)(A).” Harmon sought court approval of the contract, but the petition for approval did not disclose the specific services to be performed by each firm and Gerber did not sign the petition or attend the hearing.
Despite these shortcomings, the circuit court granted the petition for approval of the contract.
Harmon did much work on the case and advanced $180,000 in expenses. The case settled for $8 million. Harmon prepared a closing statement showing $1,280,000 in fees to Gerber rather than the contracted-for amount of $1,670,000. Gerber signed the closing statement, but a week later withdrew its consent to the closing statement. Gerber sued Harmon for the $390,000 in dispute.
The trial court ruled as a matter of law that the closing statement was not a valid modification of the contract. Judgment was ultimately rendered for Gerber’s assignee, Santek. Harmon appealed.
The Second DCA reversed. The fee agreement failed in material respects to comply with Florida Bar rules regulating contingent fee contracts. “Because of the nature of the fee-splitting arrangement set forth in the Agreement, Gerber and Harmon were required to seek court approval for that arrangement. Rule 4-1.5(f)(4)(D)(iii) required the petition filed with the court to be sworn, signed by all counsel, filed within ten days of execution, and to disclose in detail the service to be performed by each counsel. Here, the petition failed to comply with any of these requirements.”
The court noted that in Chandris, S.A. v. Yanakakis, 668 So.2d 180, 185-186 (Fla. 1995), the Supreme Court ruled that “a contingent fee contract entered into by a member of The Florida Bar must comply with the rule governing contingent fees in order to be enforceable.” See also Katz v. Frank, Weinberg & Black, P.L., 268 So.3d 773 (Fla. 4th DCA 2019).
Concluding that the non-compliance with the applicable rules by Gerber and Harmon “was substantial and significant,” the Second DCA held that “the fee-splitting agreement between Gerber and Harmon was void as against public policy and, thus, unenforceable.” Further, although Chandris and Katz indicated that a firm that cannot recover fees under an unenforceable agreement ordinarily may seek recovery under quantum meruit instead, “a quantum meruit theory must be pled or tried by consent.” Neither occurred here, and so the appeals court reversed and remanded for entry of judgment in favor or Harmon.
One judge concurred because Chandris was controlling. Another judge wrote a lengthy dissent, distinguishing Chandris from the facts of this case and pointing out that “[s]everal courts, post-Chandris, have determined that contingent fee agreements can be enforceable even if they have technical or immaterial violations of the Rules Regulating The Florida Bar” (citations omitted). Harmon Parker, P.A. v. Santek Management, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D18-4632, 9/25/2020), 2020 WL 5739758.
Law firm entitled to only quantum meruit rather than full contingent fee following departure from firm of lawyer who was titled “profit partner” but was not equity partner in firm. [Added 10/10/19]
Law Firm was organized as a limited liability partnership in New York. Lawyer was licensed in Florida. Law Firm hired Lawyer to handle Engle tobacco suits in Florida. Lawyer filed suit for the Firm on behalf of the estate of Purdo as well for other clients. When the Florida Bar questioned whether the Firm was engaging in the unlicensed practice of law in Florida by operating a Florida office without having a Florida-licensed partner in the office, Law Firm named Lawyer a partner. More accurately, Lawyer was described as a “profit partner” and “supervisory partner,” but he was not an equity partner. Lawyer “was not allowed access to the financial information or capital of the partnership, and could not vote in partnership matters. Despite being described as a ‘profit partner,’ his salary was determined by the managing partners, he did not share in the firm’s profits, and continued to receive compensation as a salaried W-2 employee entitled only to discretionary bonuses.”
Lawyer left Law Firm and continued representing Purdo’s estate. By order of the trial court Lawyer was substituted as counsel for Purdo and Law Firm left the case. Law Firm then filed a charging lien.
Ultimately the Purdo case was resolved for a substantial sum, with Lawyer’s contingent fee amounting to $4,223,700. Law Firm claimed that it was entitled to the full fee under the partnership principles set forth in Buckley Towers Condo., Inc. v. Katzman Garfinkel Rosenbaum, LLP, 519 Fed. Appx. 657 (11th Cir. 2013) and Frates v. Nichols, 167 So. 2d 77 (Fla. 3d DCA 1964). The trial court disagreed and awarded Law Firm fees and costs of $93,203. Law Firm appealed.
The Fourth DCA affirmed. The courts in Frates and later in Buckley Towers determined that a partner who leaves a law firm and concludes a contingent fee case that originated in the firm owes a fiduciary duty to the firm, which means that the departed partner will wind up the case on behalf of the firm. As a result, the firm is entitled to the full fee minus the amount attributable to the departed partner’s partnership share under the old partnership agreement. The Fourth DCA agreed with that principle, but concluded that it did not apply in the instant case in view of the fact that “[t]here was no evidence that [Lawyer] was ever a general partner or had equity ownership in [Law Firm].”
Even if Lawyer could be characterized as a limited partner, “would have had no duty to wind up [Law Firm]’s affairs relating to the Purdo case after he left the firm and breached no duties to [Law Firm] by signing her as a client with his new firm. . . . Since [Lawyer] owed no fiduciary duty to the firm, Parker Waichman was not entitled to the full proceeds of [Lawyer]’s share of the Purdo contingency fee. . . . As such, the division of fees resulting from [Lawyer]’s disassociation from the firm should be treated like that involving the departure of an associate.” [Citations omitted.]
The court summarized its decision: “[F]or the purposes of dividing the contingency fee in a case involving the departure of a limited partner from a firm, the framework should mirror the one used when an associate attorney leaves a firm rather than when a general partner, equity holding attorney, or shareholder departs. . . . Therefore, [Law Firm] was only entitled to a quantum meruit award for work completed on the Purdo case when [Lawyer] was with the firm.” Parker Waichman LLP v. R.J. Reynolds Tobacco Co., __ So.3d __ (Fla. 4th DCA, No. 4D18-3239, 10/2/2019), 2019 WL 4850138.
Lawyer does not “publish” cease and desist letter to opposing counsel for defamation purposes by sending copy to client. [Added 7/6/19]
Lawyers were retained by a Condominium Association to deal with a Unit Owner who was unhappy with decisions made by the Association’s board of directors. Lawyers sent Unit Owner a cease and desist letter and sent a copy to their client. Unit Owner did not like the letter and sued Lawyers alleging defamation. The trial court dismissed the suit for failure to state a cause of action, ruling that the complaint did not allege publication to a third party. Unit Owner appealed.
The Fourth DCA affirmed. Defamation is the unprivileged publication of false statements that naturally and proximately result in injury to another. “Publication” is communication of the defamatory statement to a third person. Florida case law recognizes that certain communications are not considered “publication” for purposes of a defamation action. These situations include situations where: communication of the defamatory statement was made by one managerial employee of the defendant corporation to another; the defamatory statement about a plaintiff corporation was made to a managerial employee of the plaintiff; and the defamatory statement was made to the plaintiff’s attorney. (Citations omitted.)
The appeals court noted that all of these situations “arose in the context of an agency relationship where the interests of the principal and agent were unified, so that statements to an employee or agent of the principal did not constitute statements to a third party.” Consequently, the court concluded that the interests of Lawyers and their client were unified, and so “a statement that the attorney makes to his or her client as part of the attorney-client relationship is analogous to the situations presented in [American Airlines, Inc. v.] Geddes [960 So.2d 830 (Fla. 3d DCA 2007)], [Advantage Personnel Agency, Inc. v.] Hicks & Grayson [Inc., 447 So.2d 330 (Fla. 3d DCA 1984)], and Maine [v. Allstate Ins. Co., 240 So.2d 857 (Fla. 4th DCA 1970)], where there was no publication to a third party because the communication was tantamount to the principal ‘talking to itself.’” Hoch v. Loren, __ So.3d __ (Fla. 4th DCA, No. 4D18-1407, 6/12/2019), 2019 WL 2439798.
Firm that identified public adjuster as its “loss consultant” should not have been sanctioned as result of his failure to appear for depositions. [Added 6/21/19]
After allegedly sustaining damage to their home due to a broken pipe, one of the Plaintiffs “was put into contact” with Rodriguez, a public adjuster. Plaintiffs then hired Law Firm, which notified Insurer of its retention and provided contact information for Rodriguez, “whom the law firm identified as ‘our loss consultant.’”
Over the course of two years, Insurer sought to depose Rodriguez and the company with which he was affiliated. Insurer was unable to serve Rodriguez because the address provided by Law Firm was for a UPS store. Insurer filed motions for sanctions and a hearing was held. Law Firm was directed to provide an address to Insurer. After the hearing, Law Firm provided an Orlando address for Rodriguez. Law Firm also amended its witness list to remove Rodriguez, who had been listed as a fact witness.
Insurer was able to obtain service on Rodriguez. Rodriguez never appeared for deposition. The trial court entered an order striking Plaintiffs’ pleadings and imposing sanctions on Law Firm. “The court found that based on the letter of representation sent by the law firm to the insurance company, Rodriguez was an agent of the law firm.” Law Firm appealed.
The Fourth DCA reversed on several grounds. Among other things, the court should not have relied on Law Firm’s failure to produce Rodriguez for deposition. “[T]he trial court did not cite to any authority requiring the law firm to do so and we ourselves are unaware of any. Rodriguez is not the type of witness a party is required to produce, such as an expert or corporate representative. . . . He is a fact witness. While sanctions can be based on a party’s failure to provide an address for its witness . . . the trial court’s findings reflect that the law firm did provide a valid address – the Orlando address – and that Rodriguez was served there.” (Emphasis by court; citations omitted.)
Further, the court also erred in basing the finding of finding of noncompliance on its determination that Rodriguez was an agent of the law firm. “The original letter of representation sent by the law firm to the insurance company provided that the insurance company could speak to ‘Rodriguez or any of our agents’ about specified topics. To the extent the letter of representation sent by the law firm to the insurance company gives the appearance of an agency relationship between the firm and Rodriguez, the evidence and record was insufficient to establish that Rodriguez’s failure to appear for deposition fell within the scope of any such agency relationship.” Williams v. Prepared Ins. Co., __ So.3d __ (Fla. 4th DCA, No. 4D18-692, 6/12/2019), 2019 WL 2439787.
Court abused discretion in not finding “excusable neglect” when law firm did not timely file fee motion because lawyer failed to recognize that email sent directly to him from judicial assistant contained court’s final judgment. [Added 6/20/19]
Madill was the prevailing party in a suit brought by Rivercrest Community Association. She was entitled to fees under F.S. 720.305 and the Association’s governing documents. The deadline under Fla.R.Civ.P. 1.525 for service of her fee motion was April 13, but it was not filed until May 2. The motion was filed after Madill told her law firm that she discovered the judgment when looking online for information about her case.
Along with her fee motion Madill filed a motion for enlargement of time under Fla.R.Civ.P. 1.090(b)(2)based on excusable neglect. That motion and attached affidavits explained that Madill’s law firm had a practice of monitoring the court’s e-filing portal (JAWS) for court documents and that it got no JAWS notification of the judgment. It further explained that the firm received no notification of the judgment via email. A lawyer in the firm who was listed as an attorney of record on Madill’s case (but who did not work on the litigation phase) stated that he had received a copy of the judgment as an attachment to an email sent directly to him by the judicial assistant. The lawyer stated that the email did not contain the formalities prescribed in Fla.R.Jud.Admin. 2.516 so he “glossed over it” and did not open the attached judgment.
The trial court ruled that the firm had failed to demonstrate excusable neglect denied the motion to enlarge time, stating in part: “The court finds that [the attorney] ‘glossing over’ an email from the court and failing to open the attachment to the email pertaining to a pending case of which he is attorney of record is inexcusable.” Madill appealed.
The Second DCA reversed. The court described the conduct of the lawyer who got the email from the judicial assistant to be “troubling,” pointing out that “[i]t goes without saying that attorneys who neglect to open case-related emails—even facially ambiguous ones—sent directly to them by the court do so at their own peril.” However, the court went on to state: “But in simply concluding that the attorney’s conduct in this case was ‘inexcusable,’ the trial court failed to take all of the relevant circumstances into account. . . . The law firm had a tracking system for court orders in place, and pursuant to that system, both the paralegal and the legal assistant regularly reviewed emails from the Clerk of the Circuit Court and looked for notifications from the JAWS system; they reasonably did not expect to be notified of the final judgment from a different source. Moreover, Rivercrest Community Association, Inc. asserted no prejudice, Madill's counsel filed the motions for fees and costs and for an enlargement of time immediately upon realizing what had happened, and there is no indication of bad faith.”
The court concluded: “There’s no question that the attorney’s oversight was the result of careless human error. But absent something more, that's exactly what excusable neglect is.” Madill v. Rivercrest Community Ass’n, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D18-3265, 6/7/2019), 2019 WL 2398012.
Saying “what’s sauce for the goose is sauce for the gander,” Second DCA reversed order compelling arbitration of lawyer’s counterclaims against his former law firm. [Added 11/13/17]
When Lawyer joined Law Firm as an associate he signed an employment agreement and received an employee handbook. Several years later he became a “profit partner” with the Firm and signed a Partnership Agreement that included an arbitration clause. After Lawyer left Law Firm, the Firm sued him. Lawyer counterclaimed. Law Firm moved to dismiss the counterclaims on the ground that they were subject to arbitration. Lawyer objected, arguing that the Firm had waived any right to arbitration because it brought suit on claims that were based on the Partnership Agreement. The Firm countered that the claims in its suit were based on the employment agreement and not the Partnership Agreement. The trial court granted the motion to dismiss the counterclaims, ruling that they “fell squarely within the ambit of the arbitration clause.”
The Second DCA reversed. Several of the claims in the suit filed by Law Firm fell within the scope of the Partnership Agreement’s arbitration clause. “By electing to sue and pursue relief in the trial court on arbitrable claims arising out of or relating to the Partnership Agreement, [Law Firm] waived its right to seek arbitration.” The Firm’s “decision to sue in state court was adverse to its insistence that [Lawyer]’s counterclaims, founded upon the same Partnership Agreement, be submitted to arbitration. What is sauce for the goose is sauce for the gander.” Chaikin v. Parker Waichman LLP, __ So.3d __ (Fla., 2d DCA, No. 2D16-4883, 10/22/2017), 2017 WL 4518527.
Under Rule 4-3.4(b), fact witnesses may be paid “reasonable compensation” for “preparing for, attending, and testifying at proceedings,” including assistance with case and discovery preparation. [Added 10/30/17]
Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party. Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement. Antaramian and the third party settled, with each party dropping its claims. Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery. TPI sued Antaramian for breach of contract.
The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement which provided in part: “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death. The award included fees for litigating the amount of fees to which Hahn was entitled. TPI appealed.
The Second DCA affirmed. “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees. . . . However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.” The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.” The appeals court declined to rewrite the contract to relieve TPI of its obligation.
The court also rejected TPI’s argument that Hahn was not entitled to prevailing party fees “because Antaramian improperly paid expert witness fees to fact witnesses.” Antaramian paid more than the statutory $5 per day to fact witnesses. Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.” The Rule does not conflict with F.S. 92.142, regarding the state’s payment to witnesses. “The statute restricts payments to witnesses for their attendance and thus presumably their actual testimony at trial. But the rule addresses payments for entirely different and compensable items: witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony. Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness's time spent in responding to discovery and appearing at depositions.” (Footnote omitted.)
The court certified the following question to the Florida Supreme Court as one of great public importance: “Does Rule 4-.34(b) of the Rules Regulating The Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?” Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 4798944.
Firm had duty to have sufficient procedures to ensure timely receipt of orders, and in using email system without safeguards or oversight firm could not claim excusable neglect under Fla.R.Civ.P. 1.540 when it failed to timely appeal emailed order it allegedly did not receive. [Added 10/18/17]
A trial court rendered an order assessing fees against Law Firm’s client. The order was emailed to the mail addresses designated by each party’s counsel. The clerk’s records showed that the email sent to Law Firm was accepted by the recipient server. Law Firm, however, claimed that it never received the emailed order. Accordingly, Law Firm’s client missed the deadline to appeal the order. Law Firm filed a motion for relief from judgment under Fla.R.Civ.P. 1.540(b), alleging excusable neglect.
A consultant who had provided IT services for Law Firm testified that the Firm’s system “was configured to drop and permanently delete emails perceived to be spam without alerting the recipient that the email was deleted.” He had advised the Firm against this. The Firm rejected the consultant’s recommendation to hire a third-party vendor to handle spam filtering “because [the Firm] did not want to spend the extra money.” The Firm also rejected his recommendation to get an online backup system for about $700 to $1200 per year. The consultant eventually ceased working for the Firm “because the firm rejected his recommendations.”
An expert witness testified that Law Firm “did not properly implement and utilize its email filtering system.” He understood that the Firm’s email system “was set to drop and delete emails identified as spam.” The expert stated that, if the Firm was his client and wanted to implement such a system, “he would require the client to sign a waiver exonerating him from responsibility.”
The trial court denied the motion for relief from judgment. The First DCA affirmed, concluding that no excusable neglect was demonstrated. The appeals court stated that, based on the testimony, the trial court could conclude that [Law Firm] made a conscious decision to use a defective email system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect.” See, e.g., Bequer v. Nat’l City Bank, 46 So.3d 1199 (Fla. 4th DCA 2010) (reversing an order setting aside a default final judgment based on excusable neglect where the bank’s inaction was not the result of a ‘system gone awry,’ but rather of a ‘defective system altogether’).”
The court concluded: “Counsel has a duty to have sufficient procedures and protocols in place to ensure timely notice of appealable orders. This includes use of an email spam filter with adequate safeguards and independent monitoring of the court’‘s electronic docket. In cases where rendition of an appealable order has been delayed for a significant period of time, it might also include the filing of a joint motion for a case management conference to ensure that the order has not slipped through the cracks. [Law Firm] made no effort to do any of these things, reflecting an overall pattern of inaction and disengagement. In short, there was an absence of ‘any meaningful procedure in place that, if followed, would have avoided the unfortunate events that resulted in a significant judgment against’ [Law Firm’s client].” Emerald Coast Utilities Authority v. Bear Marcus Point, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D15-5714, 10/6/2017) (on rehearing), 2017 WL 4448526.
Court departed from essential requirements of law in ordering law firm to give former client immediate access to firm’s files, despite firm’s assertion of retaining liens on files. [Added 8/6/15] -- Conde & Cohen, P.L. v. Grandview Palace Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1109, 8/5/2015.
Court erred in dismissing tort claims against law firm on basis of economic loss rule. [Added 8/5/15] -- Bornstein v. Marcus, __ So.3d __ (Fla. 4th DCA, No. 4D13-4098, 7/22/2015), 2015 WL 4461117.
Fourth DCA allows financial discovery as to relationship between plaintiff’s law firm and treating physician regardless of whether firm referred plaintiff to the doctor. [Added 8/28/14] -- Brown v. Mittelman, __ So.3d __ (Fla. 4th DCA, No. 4D14-1748, 8/27/2014).
Law firm's financial relationship with client's treating physician subject to discovery on issue of bias. [Added 3/10/14] -- Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, __ So.3d __ (Fla. 4th DCA, No. 4D13-4016, 3/5/2014).
Introduction of letter of protection language indicating that doctor would reduce bill if patient/client got reduced recovery did not violate collateral source rule. [Added 12/2/13] -- Smith v. Geico Cas. Co., 127 So.3d 808 (Fla. 2d DCA 11/27/2013).
Florida court has personal jurisdiction over out-of-state client who never came to Florida but allegedly breached contract with Florida law firm. [Added 10/7/13] -- Metnick & Levy, P.A. v. Seuling, 123 So.3d 639 (Fla. 4th DCA 10/2/2013).
Subordinate lawyers remain responsible for complying with ethics rules even when acting at their superior’s direction. [Added 9/16/13] -- Briarwood Capital v. Lennar Corp., 125 So.3d 291 (Fla. 3d DCA 2013).
Trial court lacked authority to impose monetary sanctions on party for filing Bar complaints against opponent’s lawyers. [Added 8/26/13] -- Kass Shuler, P.A. v. Barchard, 120 So.3d 165 (Fla. 2d DCA 8/23/2013).
Litigation privilege applies to protect lawyers from claims for abuse of process and malicious prosecution. [Added 7/23/13] -- Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 7/17/2013).
Court erred in ruling on venue motion before determining “true nature” of law firm’s claim against client. [Added 7/13/13] -- Aboul-Hosn v. Frost Van Den Boom & Smith, P.A., 117 So.3d 445 (Fla. 2d DCA 7/10/2013).
Lawyers whose bookkeeper embezzled millions in client funds are disbarred for trust accounting violations and their conduct in responding to the problem. [Added 3/30/13] -- Florida Bar v. Rousso, 117 So.3d 756 (Fla. 3/28/2013).
Court erred in granting new trial in a suit against lawyer after ruling that breach of fiduciary duty cannot be waived. [Added 3/26/13] -- Band v. Libby, 113 So.3d 113 (Fla. 2d DCA 5/22/2013) (on rehearing).
Board of Governors advises that lawyers may permit trusted, properly supervised nonlawyers to file documents via E-Portal using the lawyer's access credentials. [Added 12/14/12] --
In December 2012 the Florida Bar Board of Governors approved Florida Ethics Opinion 12-2. The opinion concludes that it is ethically permissible for a lawyer to provide his or her access credentials to the E-Portal to trusted, properly supervised nonlawyer employees so that the employees may electronically file court documents on the lawyer's behalf. The lawyer is ultimately responsible for the filing. Opinion 12-2 also advises that the lawyer should immediately change the lawyer’s password if the nonlawyer leaves the lawyer’s employ or shows untrustworthiness in the use of the E-Portal.
Lawyer working for law firm as outsourced independent contractor is not “associated” with firm for purposes of imputation of conflicts. [Added 10/24/12] -- Brown v. Fla. Dept. of Highway Safety and Motor Vehicles, 2012 WL 4758150 (N.D. Fla. 2012).
Law firm sued for malpractice and other claims could compel arbitration based on co-defendants’ arbitration agreement with plaintiff. [Added 5/18/12] -- Lash & Goldberg LLP v. Clarke, 88 So.3d 426 (Fla. 4th DCA 2012).
Law firm alleged sufficient facts to go forward on claims against another firm for tortious interference with its contract with client. [Added 4/6/12] -- Swope Rodante, P.A. v. Harmon, 85 So.3d 508 (Fla. 2d DCA 2012).
Court did not err in reducing punitive damages award in legal malpractice case or excluding testimony that lawyer was disbarred for conduct in unrelated case. [Added 12/26/11] -- Young v. Becker & Poliakoff, P.A., 88 So.3d 1002 (Fla. 4th DCA 2012) (on rehearing).
Attorney General lacked authority under FDUTPA to issue investigative subpoena to law firm seeking information on its representation of lenders in mortgage foreclosures. [Added 12/15/11] -- Law Office of David Stern, P.A. v. Dept. of Legal Affairs, 83 So.3d 847 (Fla. 4th DCA 2011).
Civil investigative subpoena to law firm is quashed because firm's mortgage foreclosure services were not "trade or commerce" under FDUTPA. [Added 4/28/11] -- Florida Office of Attorney General v. Shapiro & Fishman, LLP, 59 So.3d 353 (Fla. 4th DCA 2011).
Lawyer who left a law firm and opened his own practice but earned no income from it may be eligible for unemployment benefits. [Added 4/25/11] -- Bryant v. Florida Unemployment Appeals Comm'n, 61 So.3d 1181 (Fla. 1st DCA 2011).
Class action certification upheld in case accusing law firm of violating consumer collection and deceptive trade practices laws. [Added 1/3/11] -- Law Offices of David J. Stern, P.A. v. Banner, 50 So.3d 1221 (Fla. 4th DCA 2010).
Lawyer's agreement not to represent anyone against the law firm that formerly employed him does not violate public policy. [Added 1/3/11] -- Alan B. Garfinkel, P.A. v. Mager, 57 So.3d 221 (Fla. 5th DCA 2010).
FLORIDA BAR APPROVES OPINION REQUIRING LAWYERS TO PROTECT CONFIDENTIALITY OF CLIENT INFORMATION STORED ON DEVICES LIKE COPIERS, SCANNERS, FAX MACHINES, CELL PHONES, AND FLASH DRIVES. [Added 12/16/10]
In December 2010 the Florida Bar Board of Governors approved Florida Ethics Opinion 10-2, which had been promulgated earlier in the year by the Bar's Professional Ethics Committee. Opinion 10-2 addresses the ethical obligations of a lawyer who chooses to use electronic devices that store information. These "Devices" may include "computers, printers, copiers, scanners, cellular phones, personal digital assistants ('PDA’s'), flash drives, memory sticks, facsimile machines and other electronic or digital devices." The opinion discusses ethical duties of competence (citing Rule 4-1.1), confidentiality (Rule 4-1.6), and supervision (Rule 4-5.3). Significantly, the opinion applies these duties to situations and circumstances that arise outside of a lawyer's office, such as hotels and copy centers.
Competence. Opinion 10-2 states: "If a lawyer chooses to use these Devices that contain Storage Media, the lawyer has a duty to keep abreast of changes in technology to the extent that the lawyer can identify potential threats to maintaining confidentiality. The lawyer must learn such details as whether the Device has the ability to store confidential information, whether the information can be accessed by unauthorized parties, and who can potentially have access to the information. The lawyer must also be aware of different environments in which confidential information is exposed such as public copy centers, hotel business centers, and home offices. The lawyer should obtain enough information to know when to seek protection and what Devices must be sanitized, or cleared of all confidential information, before disposal or other disposition. Therefore, the duty of competence extends from the receipt, i.e., when the lawyer obtains control of the Device, through the Device’s life cycle, and until disposition of the Device, including after it leaves the control of the lawyer."
Confidentiality. Opinion 10-2 states: "A lawyer must ensure confidentiality by taking reasonable steps to protect all confidential information under the lawyer’s control. Those reasonable steps include identifying areas where confidential information could be potentially exposed."
Duty to supervise others. Opinion 10-2 states: "A lawyer’s supervisory responsibility extends not only to the lawyer’s own employees but over entities outside the lawyer’s firm with whom the lawyer contracts to assist in the care and maintenance of the Devices in the lawyer’s control. If a nonlawyer will have access to confidential information, the lawyer must obtain adequate assurances from the nonlawyer that confidentiality of the information will be maintained." Importantly for lawyers, these ethical obligations extend to "sanitization" of Devices no longer being used, such as old copiers or discarded cell phones. "A lawyer has a duty to obtain adequate assurances that the Device has been stripped of all confidential information before disposition of the Device. If a vendor or other service provider is involved in the sanitization of the Device, such as at the termination of a lease agreement or upon sale of the Device, it is not sufficient to merely obtain an agreement that the vendor will sanitize the Device upon sale or turn back of the Device. The lawyer has an affirmative obligation to ascertain that the sanitization has been accomplished, whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office, or by other similar means. Further, a lawyer should use care when using Devices in public places such as at copy centers, hotel business centers, and outside offices where the lawyer and those under the lawyer’s supervision have little or no control. In such situations, the lawyer should inquire and determine whether use of such Devices would preserve confidentiality under these rules."
The headnote published with Opinion 10-2 summarizes the opinion this way: "A lawyer who chooses to use Devices that contain Storage Media such as printers, copiers, scanners, and facsimile machines must take reasonable steps to ensure that client confidentiality is maintained and that the Device is sanitized before disposition, including: (1) identification of the potential threat to confidentiality along with the development and implementation of policies to address the potential threat to confidentiality; (2) inventory of the Devices that contain Hard Drives or other Storage Media; (3) supervision of nonlawyers to obtain adequate assurances that confidentiality will be maintained; and (4) responsibility for sanitization of the Device by requiring meaningful assurances from the vendor at the intake of the Device and confirmation or certification of the sanitization at the disposition of the Device."
Florida Supreme Court disciplines lawyer who allowed non-lawyer to have signatory authority on escrow account. [Added 6/10/10] -- Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010).
Civil theft judgment against lawyer who left law firm and took clients with him is reversed. [Added 2/10/10] -- Winters v. Mulholland, 33 So.3d 54 (Fla. 2d DCA 2010).
Venue of legal malpractice case based on disclosure of confidential information is proper not where disclosure took place but where resulting damage occurred. [Added 10/21/09] -- Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111 (Fla. 2d DCA 2009).
Law firm not responsible for losses caused by one of its lawyers who acted outside scope of employment and defrauded "investors." [Added 10/9/09] -- Saralegui v. Sacher, Zelman, Van Sant, Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009).
FLORIDA BAR BOARD OF GOVERNORS APPROVES GUIDELINES REGARDING "OFFSHORING" OF LEGAL SERVICES [Added 4/7/09]
In April 2009 the Florida Bar Board of Governors approved "Guidelines Regarding Offshoring Legal Services." The Guidelines were developed by the Bar's Professional Ethics Committee. The Board had asked the Committee to further study the issue of outsourcing legal services, particularly to foreign countries. In response, the Committee prepared the Guidelines to accompany Florida Ethics Opinion 07-2.
Florida Commission on Ethics renders opinion on possible voting conflict of non-lawyer law firm member who acts as a lobbyist. [Added 6/25/08] -- Florida Commission on Ethics Opinion 08-13.
Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal. [5/9/08] -- Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008).
Florida Supreme Court discusses whether lawyers who share space are a "firm" for conflicts imputation purposes. [Added 11/19/07] -- Connor v. State, 979 So.2d 852 (Fla. 2007) (revised opinion).
Florida Commission on Ethics advises that law firm can be "lobbying firm" under state ethics law if even one firm lawyer is registered to lobby. [Added 6/7/07] -- Florida Commission on Ethics Opinion 07-08.
Misconduct in dealing with his law firm nets lawyer 91 day suspension. [Added 7/12/05] -- The Florida Bar v. Shankman, 908 So.2d 379 (Fla. 2005).
Lawyer's moonlighting and subsequent denial results in loss of job and 30 day suspension from practice. [Added 6/2/05] -- The Florida Bar v. Kossow, 912 So.2d 544 (Fla. 2005).
No cause of action under Whistle-blower Act for lawyer allegedly fired from law firm for reporting another firm lawyer to State Attorney. [Added 1/20/05] -- Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787 (Fla. 2d DCA 2005).
Theft from employer law firm is not just "moonlighting;' improper to request that potential complainant not provide assistance or evidence to Florida Bar. [Added 5/31/03] -- The Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003).