Following Trends in Florida Law

Archive for June, 2009

Florida Trend Magazine’s 2009 Legal Elite

Monday, June 29th, 2009

Florida Trend Magazine (July edition) hit the stands last week with its annual list of Legal Elite in the state of Florida broken down by areas of practice.  The list represents about 2% of all Florida lawyers.

Thank you for those who were kind enough to submit my name (under Appellate).  I very much appreciate it.  Glad to see so many familiar names on the list as well.

The entire list is here.

What Are The Steps to Seal a Court File in Florida?

Sunday, June 28th, 2009

The Third District recently provided, in BDO Seidman LLP v. Banco Espirito Santo International et al., a condensed explanation of the nearly impossible standard to seal a court file.

The issue arises infrequently, and rarely successfully, so a brief refresher may be warranted.

Briefly, the standard arises from a 1988 Supreme Court of Florida case, Barron v. Florida Freedom Newspapers, Inc., which holds:

1.  Strong presumption of oppenness;

2.  Burden is on party seeking closure;

3.  Closure is only done when necessary for public policy reasons; trade secrets; government interests; “to obtain evidence to properly determine a legal issue”; to avoid substantial injury to third parties; or to avoid substantial injury to a party by disclosing information protected by privacy or common law rights.

4.  Trial court must confirm there is no reasonable alternative.

5.  Presumption of openness remains through appeals.

Can You Revoke Agreement to a Florida Special Magistrate?

Sunday, June 21st, 2009

Yes, according to the Third District in Robert Gielchinsky v. Vibo Corporation (Gersten, Shepherd & Schwartz).  In that case, all parties agreed to the appointment of a special magistrate to address discovery issues.  Later, one of the parties withdrew that agreement to the special master.

According to Florida Rule of Civil Procedure 1.490(c), consent is needed to refer matters to magistrates.  Once withdrawn, then “it logically follows that the matter is no longer appropriate for a special magistrate.”

Florida Lawyers Not Allowed to Accept Sex as Payment for Legal Services

Friday, June 19th, 2009

The Supreme Court of Florida took the time to write a 2-column, four page opinion disbarring a Florida lawyer for various criminal and ethical offenses.  At least one of the grounds was worthy of attention… as was the penalty imposed by Alabama’s Supreme Court.

In The Florida Bar v. James Harvey Tipler, the defendant-lawyer admitted that he represented an 18-year old female in an aggravated assault case.  The total charge was $2,300 and the lawyer drafted a fee agreement which allowed a “credit of $200 for each time she engaged in sex [with the lawyer]” and “$400 credit if she arranged for other females to have sex with him.”

Alabama slapped him with a 15-month suspension for the indescretion.  When he failed to advise Florida of the suspension, the recommendation was an 18-month Florida Bar suspension with probation and mandatory rehabilitation (arguably Florida took the “failure to report” to be more serious than sex with your client).  He was also charged with racketeering and prostitution (and plead guilty to the latter).

Lawyer Cannot Ask Paralegal to “Facebook Friend” A Witness

Tuesday, June 16th, 2009

After the flood  of attention which lawyers and the media have recently paid to social networking sites, the next logical emphasis will be the ethical use, and mis-use, of such sites by lawyers.

Trying to jump start that inquiry, in Internet Social Networking Sites For Lawyers, we hinted at the risks of Facebook-friend’ing prospective jury members (improper contact under Rule 4-3.5) and we raised concerns about the use of social networking sites being deemed as advertising violations (Rules 4-7 and 4-15).  Indeed, in a recent presentation, we even discussed whether a law firm could revise and tailor its website prior to trial.  We also proposed to a paralegal group that they could not anonymously send Facebook-friend requests to jury members.

But we were clearly not thorough nor quick enough.  The Philadelphia Bar Association Professional Guidance Committee hustled out its Opinion 2009-02 which held that a lawyer could not ask a “third person” (presumably a paralegal or office employee) to Facebook-friend a deposition witness so the lawyer could surreptitiously access the witness’ Facebook page.

For the uninitiated, the default setting on a person’s Facebook page is that only invited/permitted users can see the page.  To gain access, a user needs to send a “Facebook friend request.”  That request usually is accomplished by clicking a button which says “send Friend request.”   There is a discreet link which says “Send a Personal Message” where the pursuing user can enter a greeting or identification or some kind but, at least anecdotally, this is rarely used.  The receiving user can see the name, picture, and a brief description of the person sending the friend request.  That person can then “confirm” or “ignore” the request.  For a good summary of this process, look here.

Here, the lawyer believed the deponent had information on her web page and somehow believed she would accept just about anyone as a Facebook friend (presumably there was some discussion as to the number of Facebook friends or her Facebook practices).  In person, the lawyer did not ask to be a Facebook-friend.  Instead, the question was raised whether the lawyer could properly have a third person send the request — a person who the witness would likely not be able to identify as someone associated with the lawyer.  The obvious intention was that the Facebook-promiscuous user would blindly accept the friend request, thereby giving the lawyer access to the page.

The Philly Bar concluded that this was improperly deceptive under their Rule 8.4, which is nearly word-for-word identical to Florida Rule Regulating the Florida Bar 4-8.4.

First, the lawyer was responsible for the acts of the third person since the lawyer was asking for and ratifying the conduct.  Second, the lawyer was purportedly “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation… because the planned communication by the third party with the witness is deceptive [because] it omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’ pages is doing so only because he or she is intent… on sharing it with the lawyer for use in a lawsuit to impeach the testimony of the witness.”

Unlike that Bar, we note that Facebook friend request typically do not involve an explanation / introduction and question whether this is truly “hiding” information.  Then again, in a non-virtual world example, a lawyer asking another person to cozy up to a witness at a bar to get information seems improper.  Your thoughts?  Comments welcome below.

Holocaust Museum Shooter Blames Obama

Thursday, June 11th, 2009

Almost every news outlet has covered the Holocaust Museum shooting.

For a first hand source, here is the criminal complaint filed in federal court against the alleged Holocaust Museum shooter.  It’s a federal crime since the museum is federal land.  Reportedly, there is both video of the incident and the recovery of a diary or writings where the elderly man blamed both Jewish people and President Obama.

Clarifying Seeking Probate Fees Under Florida Statute 733.106(4): How Frivolous Claims Turned a $4k Legal Bill Into $50k

Thursday, June 11th, 2009

When can a probate court assess attorney’s fees against a beneficiary’s portion?  Can a party be awarded attorney’s fees for time spent pursuing attorney’s fees (”fees on fees”)?

The Fourth District answered these questions, once “the jig was up,” in the recent opinion of  Rebecca Geary as Personal Representative of the Estate of Janice White v. Butzel Long, P.C., et al. (Warner, Stevenson, and Damoorgian).

In a long fact pattern, a personal representative retained several law firms in a probate matter, including the last firm which submitted a $4,127 bill in mid-2004.  The PR retained new counsel who fought that bill… for two years, racking up over $20,000 in additional fees and costs.  The trial court noted that the PR and her attorney should have known “the jig was up.”

Worse still, the PR and counsel paid themselves $18k and $43k respectively during this time period, thus leaving inadequate assets in the estate should they lose the issue.  In 2007, they lost and the trial court entered an award of $49,000 in fees and costs to the law firm.  The trial court further held that the PR should have gotten court approval before paying herself and counsel before  a substantial creditor (law firm).  The PR was deemed not to be acting in the best interest of the estate — and both PR and new counsel were ordered to pay back the money.

On appeal, the Fourth District clarified Florida Statutes 733.6171, 733.6175, and 733.106(4) and its own 1990 decision in In Re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990), finding that fees can be awarded upon a finding of bad faith, wrongdoing or pursuit of frivolous claims. The Fourth is now aligned with the Third District on this issue. It also creates a precedent for awarding attorney’s fees for having to seek fees (”fees on fees”) in probate cases.

Third DCA Clarifies Damages in Breach of Services Contract

Tuesday, June 9th, 2009

What are the damages when a 5-year landscaping contract for monthing lawn care between a homeowner’s association and lawn mowing company is breached?  The monthly rate?  Total contract fee?  Lost profits?

Lost profits, according to the Third District in Marbella Park Homeowner’s Association, Inc. v. My Lawn Service, Inc. (Gersten, Cortinas, and Salter).  

“The measure of damages for breach of a services contract is the non-breaching party’s lost profits.”  Those are calculated by taking the performance costs and subtracting them from the contract price.  Here, it would be the price of the monthly mowing minus the cost of that service.  The burden is on the non-breaching party and thus an evidentiary hearing is required.

Fifth DCA Rules Amendment 7 Overcomes Incident Report Work Product… But Maybe Not Attorney-Client Privileges

Sunday, June 7th, 2009

Last month we reported that the Second DCA ruled that Amendment 7 (Patient’s right to know about adverse medical incidents) trumped work product privleges.

The Fifth District has done the same but left the door open as to whether attorney-client privileges may still avoid disclosure.  Will health care providers start having their counsel review piles of past incident reports?

In Florida Eye Clinic v. Mary T. Gmech, the plaintiff sought medical incident reports under article X, section 25 of the Florida Constitution (Amendment 7, when it was put to the voters).  The Panel (Cobb, Torpy, and Cohen) held that “we conclude the plain language of amendment 7 evinces an intent to abrogate any fact work-product privilege that may have existed prior to the passage of amendment 7.”

“Fact work product” includes fact information gathered in connection with a potential case; “opinion work product” is the lawyer’s impressions, conclusions, opinions or theories.  The former can be overcome by a sufficient showing of need.  ”Opinion work product,” on the other hand, has a nearly absolute privilege.

In this case, the lawyers never saw the incident reports AND, likewise, the reports did not include their opinion work product.  The court held that Amendment 7 was intended to overcome the fact work product privilege — not opinion work product.  There was likewise a suggestion that Florida Rule of Civil Procedure 1.280, which included the privilege, can’t be overcome by a constitutional amendment.

Do not expect this, or the Second DCA’s, opinion to be the last word.  There appear to be endless permutations to this issue; meanwhile, given tort  reforms affect on the number of medical negligence cases, med mal lawyers on both sides seem to have endless energy to fight out Amendment 7 technicalities.

A fact-specific issue in this case is the fact that the incident reports were never reviewed by counsel.  Health care providers may consider having all incident reports reviewed by counsel — arguably including impressions as well.  Obviously, that’s not without risk and expense.

Standard for Admitting Medical Expert Testimony is Mere “Anecdotal Association” Between Conditions, Not Proof of Causation

Tuesday, June 2nd, 2009

Florida follows the 1923 Frye v. United States standard for admitting expert medical/scientific opinions.  The Florida Supreme Court last spoke on the matter in the 2007 case, Marsh v. Valyou.

The Third District recently tackled the issue of admissibility of medical expert testimony where the plaintiff’s expert could prove an anecdotal association between a staph infection and more serious kidney disease.  Causation was not proven, simply an association between the two.  Is that enough for admissibility?

It was in Aulette Andries v. Royal Caribbean Cruises, Ltd. (Cortinas, Salter, and Schwartz).

The Plaintiff developed a boil on her skin when she was on a cruise; it was later diagnosed to be a staphylococcus “staph” infection.  Sometime later, she developed immunoglobin A nephropathy, or IgA nephropathy, an incurable kidney disease.  When suit was filed, she found two physicians, with over 20 years’ experience, who testified that improperly treated staph infections can result in IgA nephropathy.  Defense experts pointed out there was no scientifically proven causal link between the two.

The Third DCA noted there were two types of medical opinion/scientific opinion.  Opinions based upon widely accepted, established scientific principles or methodology can be admissible even if pure opinion.  Opinions based upon new or novel principles or methods must meet the Frye “sufficient indicia of reliability” test which requires preponderance of the evidence that it meets the “general acceptance” standard at the time of the appeal.

Here, the Panel went to great lengths to confirm the professional standing and accomplishments of both sides’ experts.  There was a medical “Bradford Hill” criteria for establishing causation.  There were non-English research studies.

The Marsh opinion, from 2007, does not require scientific literature or other proof regarding the precise etiology or causation.  ”Association studies,” with scientific proof, were enough under these conditions.  Here, there were recognized diagnoses (staph infection and IgA nephropathy) and “anecdotal association between the two has been recognized [to the point it is] worthy of formal and published research.”

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