F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic"  [Added 8/13/08]

    Lawyer represented Movants in protracted litigation that began in November 2001.  Movants' opponent was represented by the law firm of "B&C."  One of B&C's attorney's Palma, had represented Movants on estate planning matters from 1999 until June 2001.  In 2007, Movants filed a motion to disqualify B&C and its attorneys who were working on the litigation (Palma was not involved in the litigation).  Movants asserted that they were current clients of B&C and had been since 1999, and argued that disqualification of B&C was therefore warranted under Florida Rules of Professional Conduct 4-1.7 (current client conflicts) and 4-1.10 (imputed disqualification).

    The trial court denied the disqualification motion, finding that Movants were former clients of B&C, rather than current clients.  The court's ruling, however, was based not on Movants status as current or former clients but on waiver.  "Because [Movants] did not move to disqualify [B&C] until 2007, and because it would have greatly prejudiced [Movants' opponent] to remove the firm that had been representing her for six years, the trial court ruled that [Movants] had waived any claim regarding a purported conflict of interest.  The [trial] court found it unnecessary to reach the disputed factual issue of whether [Movants] had consented to the dual representation."  Movants did not seek an evidentiary hearing to establish the material facts and did not object to the trial court's factual conclusions.

    Movants petitioned the First DCA for a writ of certiorari.  Not only did the appellate court deny the petition, it issued an order to show cause why attorney's fees should not be imposed against Movants and Lawyer under Fla.Stat. sec. 57.105(1) (2007).  The court imposed the attorney's fees sanction and explained its ruling in a written opinion.  The court noted that disqualification is an extraordinary remedy that must be sought with reasonable promptness, observed that such motions are often viewed with skepticism because they can be filed for tactical purposes, and stated:  "We believe [Movants'] motion, and certainly this petition for writ of certiorari, were filed as just such a litigation tactic."

    The court concluded that Movants' "assertion that they were current clients was baseless and not supported by the material facts or applicable law. Additionally, based on the undisputed facts, Petitioners had no legal cause to seek disqualification as former clients.  See rule 4-1.9, Fla.R.Prof.Conduct; Morse v. Clark, 890 So.2d 496 (Fla. 5th DCA 2004)."  B&C had done no work on Movants' estate plan since 2001.  Movants' argument regarding current client status was based primarily on 2 cover letters from a B&C paralegal in 2004 and a paralegal's bill for minor changes to their estate file in 2007.  The court concluded that "[n]one of these acts indicated a continuing legal representation, but rather they were ministerial tasks performed to update the completed estate planning documents.  This ministerial work does not meet the definition of the 'continuous representation rule.'  See Hampton v. Payne, 600 So.2d 1144, 1146 (Fla. 3d DCA 1992)."  Movants were former clients of B&C when they filed their disqualification motion, and furthermore Movants "never sought an evidentiary hearing to establish a factual basis to support their purely subjective claim that they were current clients of" B&C.

    Additionally, the trial court correctly ruled that Movants had waived any conflict by waiting 5 years after the litigation began to seek B&C's disqualification.

    Under Fla.Stat. sec. 57.105, a court "shall" award attorney's fees as a sanction where a party has asserted a claim unsupported by material facts or by the law applicable to the material facts.  The court imposed fees against Movants and Lawyer in equal parts.  Movants' claim that they did not know that their opponent had been represented by B&C since 2001 was "unworthy of credence."  The court also concluded that Lawyer's factual assertions in this regard were not credible.  "It is not enough for counsel to assert that he 'vetted' his clients’ representation of the facts.  To avoid liability, counsel must make an objectively reasonable investigation of the purported facts supporting a claim."  Here, such an investigation would have made it "inescapable" that Lawyer would have known.  Yang Enterprises, Inc. v. Georgalis, ___ So.2d ___ (Fla. 1st DCA, No. 1D07-6479, 8/7/2008).

Expressing skepticism regarding some motions to dismiss alleging fraud on the court, Fifth DCA reverses dismissal order entered without evidentiary hearing  [Added 7//8/08]

    The trial court granted Defendant's motion to dismiss with prejudice Plaintiff's personal injury suit for alleged fraud on the court.  Plaintiff had testified during her deposition regarding her medical history.  At the deposition held in 2005 in the case arising from an auto accident that occurred in 2000, Plaintiff testified that she had been involved in a prior accident in 1998 but that she did not sustain personal injuries or seek any medical treatment.  At the end of her deposition Plaintiff clarified that she had previously had back spasms, but that they were unlike her current back pain alleged to be attributable to the 2000 accident.  Defense counsel later filed a motion to dismiss the case, asserting that Plaintiff "knowingly and deliberately made perjurious statements under oath in her deposition or interrogatories to conceal information regarding prior back and neck injuries" (emphasis by appellate court).  The motion relied on records from the chiropractor who treated Plaintiff who had treated her beginning 13 months after the 1998 accident.

    The trial court heard argument from both sides but did not take evidence.  The court then "rejected the suggestion that inconsistencies in [Plaintiff]'s testimony could be explained by oversights or failed memory, and found by clear and convincing evidence that [Plaintiff] committed fraud on the court by knowingly and intentionally failing to disclose her previous treatment for the same conditions for which she sought damages in the instant action."  The court dismissed the action and entered judgment for Defendant.  Plaintiff appealed.

    The Fifth DCA reversed.  Although noting that a trial court does have inherent authority to dismiss an action when a fraud on the court has been perpetrated, the appeals court cautioned against premature exercise of this authority.  "We have tried very, very hard to explain, and to emphasize, that this power to dismiss a lawsuit for fraud is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved.  Short of this, poor recollection, dissemblance, even lying, can be well managed through cross-examination.  A testimonial discrepancy is usually not enough; there should be clear and convincing evidence of a scheme calculated to evade or stymie discovery of facts central to the case.  This will almost always require an evidentiary hearing."

    The appellate court went on to express skepticism regarding some motions to dismiss based on alleged fraud on the court.  The court observed that the deposition questioning of Plaintiff "was very broad in scope with virtually no follow-up questions."  Plaintiff alleged that the defense already had the chiropractor's records when the deposition was taken.  The court stated:  "This record, as well as others, hints that there may now be a 'fraud' strategy on the part of defense counsel.  If a plaintiff denies a particular prior injury or treatment or pattern of pain, rather than probe in detail – which may risk the jogging of the plaintiff's memory – the questioning on this point just stops until the inevitable motion to dismiss for fraud is ruled on."

    A concurring opinion also stated:  "I am skeptical that all of the plaintiffs in the recent profusion of 'fraud on the court' cases are thieves and perjurers."  The concurring judge additionally pointed out that "even after all of this fraud-on-the-court case law, attorneys for plaintiffs in these cases apparently are not preparing their clients for their deposition."  Bologna v. Schlanger, ___ So.2d ___ (Fla. 5th DCA, No. 5D06-1017, 6/20/2008).

Lawyer who failed to appear at court-ordered mediation is sanctioned by court and referred to Florida Bar  [Added 6/18/08]

    Lawyer was ordered to complete an appellate mediation questionnaire, but failed to do so.  After failing to respond to a court order to show cause why he did not complete the questionnaire, the Fifth DCA imposed a $500 sanction.  Lawyer's attempts to obtain relief from the sanction were unsuccessful.  When he did not pay the sanction the court ordered Lawyer to appear and explain himself.  Lawyer failed to appear at the scheduled hearing but did pay the sanction after being contacted by the court.  Not long thereafter Lawyer was directed to pay opposing counsel $1790 "as fees for unnecessary litigation expenses related to the court-ordered mediation."  Opposing counsel later filed a motion to compel payment, which the court granted.

    The mediation date was finally set, but Lawyer failed to appear.  The court ordered Lawyer to appear and show cause why he should not be sanctioned.  Lawyer attempted to obtain a continuance due to a "family crisis."  The court denied the request for continuance as well as a request that Lawyer be allowed to appear by phone.  The hearing was set for the following day.  On the morning of the hearing date, Lawyer faxed a suggestion of bankruptcy to the court but did not appear for the hearing.

    In view of these facts, the court held that Lawyer failed to show good cause why he did not appear at the court-ordered mediation.  The court noted that "imposition of monetary sanctions against [Lawyer] is appropriate" but withheld imposing sanctions until relief from the bankruptcy stay could be obtained.  The court further stated:  "The clerk of this court is directed to provide a copy of this opinion to The Florida Bar to undertake appropriate action against [Lawyer] with regard to the events set forth herein."  Mojzisik v. Estrada, 983 So.2d 699 (Fla. 5th DCA 2008).

Fourth DCA is critical of criminal defense counsel's argument concerning state's conduct  [Added 6/18/08]

    Defendant Martin, a former police detective, was charged with official misconduct.  In his case the State filed a petition for certiorari seeking to quash a trial court's order excluding Martin's former co-worker, Zapata, from testifying.  One argument raised by the State was that the issue of Zapata's testimony had been conclusively determined in a prior certiorari proceeding arising from Martin's contention that the trial court had erred in disqualifying his lawyer, Milian, who had previously represented Zapata.  The appellate court rejected this argument and denied the certiorari petition.

    The court, however, went on to express its displeasure with an argument raised by Martin's counsel.  "We note in passing that defense counsel’s zealous argument below, that the state had 'fraudulently' listed Zapata as a witness solely to disqualify Milian as counsel, is highly suspect.  The state listed Zapata as a witness months before Martin retained Milian as counsel.  Before then, Martin had been represented by another attorney.  Nothing in the current record suggests that the state anticipated Martin’s choice of counsel would suddenly change.  Attorneys should refrain from making accusations that another member of the bar is purposely, or 'fraudulently,' attempting to interfere with a criminal defendant’s constitutional rights unless these accusations are founded in fact."  State v. Martin, 982 So.2d 1288 (Fla. 4th DCA 2008).

Lawyer's conduct before judge is criticized, but finding that lawyer was guilty of direct criminal contempt is reversed  [Added 5/13/08]

    During a proceeding before Judge in county court, a dispute arose between Lawyer (who was representing the defendant) and the State over a plea to a criminal misdemeanor.  Judge took issue with Lawyer's conduct.  After the plea agreement was reached and the case against Lawyer's client was resolved, Judge held a hearing at which Lawyer was given an opportunity to apologize to Judge.  Lawyer did not apologize, or did not do so to Judge's satisfaction.  Judge found Lawyer in direct criminal contempt of court and fined Lawyer $50.

    Lawyer appealed to the circuit court, which acting in its appellate capacity affirmed by a 2-to-1 vote.  Lawyer then petitioned the Fifth DCA for certiorari review.  The Fifth DCA reversed by a 2-to-1 vote, adopting the dissenting opinion from the circuit court's decision.  The trial court's order stated that Lawyer "refused a direct order of the court and the attorney was rude."  The majority, while not condoning Lawyer's conduct, concluded that this order was defective because it failed to recite the facts on which it was based and did not comply with the procedural requirements specified by Fla.R.Crim.P. 3.830.

    A dissenting opinion would have sustained the circuit court's decision.  The dissent concluded:  "Lest [Lawyer] consider that the majority’s decision to quash the contempt order count as a vindication of his conduct, I just point out that seven judges have now weighed in on this courtroom event, and the total vote is four-to-three against him.  He is very lucky that the last two were the ones he had to have.  Next time -- and I suspect there will be a next time -- he may not be so lucky."  Wiggs v. State, 981 So.2d 576 (Fla. 5th DCA 2008).

Lawyer ordered to show cause why he should not be sanctioned for filing improper motion for rehearing and clarification  [Added 5/5/08]

    Party, represented by Lawyer, filed in the Fifth DCA a motion seeking rehearing, rehearing en banc, and clarification of the court's opinion.  The court denied rehearing but granted the motion for clarification "to make abundantly clear the basis for our earlier opinion."  The court proceeded to recite the lengthy history of the litigation.  Party and Lawyer had filed 10 prior unsuccessful appeals in the matter, which arose out of a mediated settlement agreement that Party wished to set aside.  In the instant motion, "[a]mazingly, the appellant now seeks rehearing because appellant’s counsel found it 'incredulous' that we might disagree with him on this matter."  The court found this to be an improper use of Fla.R.App.P. 9.330:  "We thought that it was made relatively clear by this court in Amador v. Walker, 862 So.2d 729 (Fla. 5th DCA 2003), that we do not view the privilege to seek a rehearing pursuant to rule 9.330, Florida Rules of Appellate Procedure, as an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief."

    The court ordered Lawyer to show cause why monetary or other sanctions should not be imposed on him for filing the motion in violation of the Florida Rules of Appellate Procedure.  Ayala v. Gonzalez, 984 So.2d 523 (Fla. 5th DCA 2008).

Trial court's order granting summary judgment is reversed due to "incompetence" of party's original lawyer  [Added 4/8/08]

    Plaintiff was represented by Lawyer, who filed a complaint on Plaintiff's behalf.  "The poor drafting of the complaint was a harbinger of the standard of representation the attorney was to afford [Plaintiff]."  Lawyer did not respond to Defendant's discovery requests, and made only limited efforts at discovery for Plaintiff.  Defendant filed a motion for summary judgment.  Lawyer "did not file an affidavit in opposition to the motion, nor was any other response to the motion filed."

    The court held a hearing on the motion. (at which Lawyer displayed a "level of incompetence" according to the appeals court).  The court orally pronounced that summary judgment for Defendant was proper.  After the hearing Lawyer "wisely retained another attorney who filed a Motion for Reconsideration and Rehearing, with an attached affidavit of Plaintiff denying assertions made by Defendant.  This Motion was filed before the trial court rendered a written order granting summary judgment for Defendant.  Plaintiff's new counsel also filed a Motion for Leave to File Amended Complaint on the ground that Lawyer "had rendered ineffective assistance" to Plaintiff.  The trial court denied the Motion for Reconsideration and Rehearing.  Plaintiff appealed.

    The Fifth DCA reversed.  Plaintiff argued that the trial court abused its discretion.  "Specifically, [Plaintiff] contends that because every indication is that his prior attorney’s representation was so inadequate as to be almost nonexistent, [Plaintiff] should have been given some leeway when his new attorney came on board and demonstrated that there was indeed a material fact question in the case."  The appeals court agreed.  "The instant case, like Fernandes [v. Boisvert, 659 So.2d 412 (Fla. 2d DCA 1995)] and Fatherly [v. California Federal Bank, FSB, 703 So.2d 1101 (Fla. 2d DCA 1997)], involved the apparently negligent legal representation of the party opposing the summary judgment.  [Plaintiff] obtained new counsel post-hearing, who was able to file the Motion for Reconsideration and Rehearing prior to the rendition of the final summary judgment.  The motion included attachments and an affidavit clearly raising material questions of fact which, if true, would not only preclude summary judgment, but would entitle [Plaintiff] to a portion of the proceeds of the sale of the home.  The record clearly reflects that [Plaintiff]’s original attorney rendered substandard legal representation.  Based on these unique facts and circumstances, we believe that the 'trial court abused its discretion in refusing to rescue [[Plaintiff]] from the apparent incompetence of [his] lawyer.'  Fernandes, 659 So. 2d at 413 (footnote omitted).  The summary judgment must, therefore, be reversed."  Olesh v. Greenberg, 978 So.2d 238 (Fla. 5th DCA 2008).

Verdict for slip-and-fall plaintiff is reversed due to "improper and unprofessional" argument and trial conduct by plaintiff's counsel  [Added 2/19/08]

    Plaintiff, a nurse, was injured when she slipped and fell while exiting Defendant mall with her patient.  After a jury trial, judgment was entered for Plaintiff.  Defendant appealed. 

    The Third DCA reversed due to the trial conduct of Plaintiff's counsel.  "Unfortunately, a simple slip and fall case unraveled into an improper attack on [Defendant], its witnesses, and its defense counsel.  This Court has repeatedly denounced such litigation tactics.  Beginning in voir dire and ending with rebuttal closing, [Plaintiff]'s counsel, [], engaged in a series of improper and unprofessional attacks on [Defendant] and its counsel that included the following allegations:  (1) failure to produce an incident report; (2) failure to produce all photographs depicting the scene of the accident; (3) defense counsel's collusion with witnesses; (4) a general frivolous defense argument."  (Footnote omitted.)

    The court noted that there was no evidence that the defense hid evidence or acted improperly, and that the argument of Plaintiff's counsel in this regard constituted fundamental error.  Furthermore, the "personal opinions" offered by Plaintiff's counsel, "[s]tanding alone," required a new trial.  Plaintiff's counsel also used an impermissible "golden rule" argument. 

    Finally, in a footnote the court pointed out that "[a]pparently, [Plaintiff's counsel] has engaged in similar but less pervasive conduct before other courts.  See Target Stores v. Detje, 833 So.2d 844, 846 (Fla. 4th DCA 2002) (Klein, J., dissenting) ([counsel]'s arguments were 'clearly improper and unethical')."  SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008).

Fifth DCA criticizes conduct of lawyers involved in placing irrelevant, prejudicial evidence before jury  [Added 1/10/08]

    During the trial of a personal injury action, Defense Counsel questioned Plaintiff about a prior auto accident suit that Plaintiff brought several years before.  Defense counsel questioned Plaintiff about the amount of the judgment obtained in the prior suit.  Defense Counsel was also able to elicit testimony from Plaintiff regarding Plaintiff's prior addition to crack cocaine.  Plaintiff's Counsel did not object contemporaneously, although he had moved for a motion in limine to keep all references to the prior suit from the jury.  The trial court, however, had not rendered a "definitive ruling" on the motion in limine (see Fla.Stat. sec. 90.104(1) (2006)).

    The jury found in favor of Defendant.  Plaintiff's counsel's motions for new trial were denied.  Plaintiff appealed.

    The Fifth DCA reluctantly affirmed in what it called a case that was "disturbing" because "the trial lawyers who were involved know better, or at least should have known better."  The amount recovered by Plaintiff in his prior suit "was simply not germane and should not have been elicited by [Defendant]."  The questioning regarding Plaintiff's crack cocaine addition "amounted to little more than an improper attack on [Plaintiff's] character."  The court further stated:  "We can only attribute the defense lawyer’s inappropriate questioning of the plaintiff in this respect to what was euphemistically described during the oral argument of this case as 'overzealous advocacy.'  We view it as less than professional."

    The court concluded, however, that the errors had not been preserved and thus affirmed.  Williams v. Lowe's Home Centers, Inc., 973 So.2d 1180 (Fla. 5th DCA 2008).

First DCA imposes attorney's fees under Fla.Stat. sec. 61.16(1) against appellant for filing frivolous appeal in domestic relations matter.  [Added 11/30/07]  --  Lahodik v. Lahodik, 969 So.2d 533 (Fla. 1st DCA 2007).

Questioned fee arrangement does not result in reversal of conviction, but defense counsel's handling of murder weapon does.  [Added 11/14/07]  --  Alessi v. State, 969 So.2d 430 (Fla. 5th DCA, 2007).

Lawyer has no legal duty to stop someone from illegally taping conversation, but could face liability for disclosing or using tape.  [Added 10/29/07]  --  Horning-Keating v. Employers Insurance of Wausau, 969 So.2d 412 (Fla. 5th DCA 2007).   NOTE:  See also Dreggors v. Employers Ins. of Wausau, ___ So.2d ___, 32 Fla.L.Weekly D2727 (Fla. 5th DCA, Nos. 5D05-4047, 5D05-4048, 5D05-4049, 5D05-4050, 5D06-620, 5D06-621, 5D06-622, 5D06-623, 11/16/2007), 2007 WL 3390888.

"Highly improper, unprofessional argument" results in reversal of criminal conviction.  [Added 9/20/07]  --  Chavers v. State, 964 So.2d 790 (Fla. 4th DCA 2007).

Fifth DCA chastises lawyer who filed motion for rehearing on the basis that she did not understand reason for court's per curiam affirmance.  [Added 8/24/07]  --  Lowry v. State, 963 So.2d 321 (Fla. 5th DCA 2007).

Second DCA reminds lawyers to present facts and law "in an accurate and forthright manner."  [Added 6/14/07]  --  Brown v. State, 958 So.2d 1029 (Fla. 2d DCA 2007).

Lawyer commended for candor in seeking amount of fees orally agreed to rather than amount provided in written co-counsel contract  [Added 4/6/07]  --  Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007).

Trial court abused discretion by denying motion for new trial based on non-disclosure by juror (who happened to be a lawyer) of her personal litigation history.  [Added 4/4/07]  --  Pereda v. Parajon, 957 So.2d 1194 (Fla. 3d DCA 2007).

Judge did not err by allowing jurors to continue deliberations until after midnight over defense counsel's objection; lawyers criticized for unrealistic assessment of time required.  [3/15/07]  --  Green v. State, 951 So.2d 962 (Fla. 1st DCA 2007).

Fifth DCA cautions against "patently overbroad" discovery requests and urges lawyers to work together to "reasonably narrow" disputed discovery issues.  [Added 1/23/07]  --  Life Care Centers of America v. Reese, 948 So.2d 830 (Fla. 5th DCA 2007).

"Offensive remarks" and accusations contained in appellate briefs lead to award of Fla.Stat. sec. 57.105 attorney's fees against lawyer.  [9/18/06]  --  Thomas v. Patton, 939 So.2d 139 (Fla. 1st DCA 2006).

Lawyer commended for professionalism in candidly accepting blame for conduct leading to imposition of sanctions.  [Added 5/8/06]  --  Doorstep Beverages of Longwood, Inc. v. Collier, 928 So.2d 482 (Fla. 5th DCA 2006) (on rehearing).

In appropriate case, appellee or its counsel may be sanctioned by appellate court for defending "indefensible" order of trial court.  [Added 7/29/05]  --  Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005).

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