Archive for the ‘Legal Ethics’ Category

Florida JEAC Opinion Allows Judicial Assistants to “Facebook Friend” Lawyers

Tuesday, June 8th, 2010

We previously mentioned the infamous? Judicial Ethics Advisory Opinion 2009-20 which prohibits a judge from “friending” lawyers who appear before the court.  That’s so 2009.

The next logical question for judicial social networking policies has arrived: does this apply to the JA?

Yes, at least in part.  A judicial assistant can friend lawyers who appear before the court.  However, the limitations may devour the rule here.  The JA cannot post anything which makes “reference to the judge or the judge’s office…”  and the posts must be “outside of the judicial assistant’s responsibilities and independent of the judge…”  Given the frequency that people use Facebook at work (including listing where they work in their profile) and the amount of time we all spend at the office, those prohibitions seem fairly high.

JEAC Opinion 2010-04 goes on to note that any lawyer who attempts ex parte communication with the JA via social networking sites should have their head examined and should be de-friended and reported to the judge.

Legal Ethics CLE in West Palm Beach

Thursday, May 20th, 2010

Thanks to those who attended the 2010 Florida Legal Ethics CLE hosted in West Palm Beach by Lorman.  If you missed it, the cd and manual are available here.

For attendees, or just those interested, the powerpoint linked under “Materials” on the right hand column.

Can a Florida Lawyer “Ghostwrite” Pleadings for a Pro Se Litigant

Tuesday, May 18th, 2010

Maybe, since it appears that New York lawyers, under a similar ethics rule, are permitted to do so according to an April 2010 opinion from the New York County Lawyers’ Association.

According to Opinion 742, New York adopted Rule 1.2 which allows “limited scope representation.”  Their Rule looks similar, if not identical, to Florida’s Rule of Professional Conduct 4-1.2.  The ABA had some nice coverage as well.

The Opinion states that lawyers can play a “limited role” with informed (written) consent of the client without disclosing the involvement to the court or opposing party except if there is a rule, order or failure to do so constitutes misrepresentation (or triggers another ethical rule).  Even so, “disclosure” need not include the lawyer’s identity.

Need quick access to the Florida ethics rules?  Consider this.

Florida Supreme Court and Bar Need to Follow FINRA’s Example on Internet Use and Regulation

Monday, February 15th, 2010

The non-governmental entity which regulates securities firms issued guidance to firms and brokers on the proper use of social networking websites such as Facebook, Linked In, and Twitter.  The Financial Industry Regulatory Authority (FINRA), issued Regulatory Notice 10-06 in January 2010 — on the heels of a prior Guide to the Internet for Registered Representatives.  Additionally, FINRA had a Social Networking Task Force up and running… and podcasts to provide further explanations.

The Florida Supreme Court and Bar, on the other hand, are still working on Internet advertising regulations for Florida lawyers which they have been kicking around since the pre-Twitter era.  FINRA, which handles brokers on a national scale, has repeatedly addressed Internet and social networking issues — touching upon record keeping, advertising, and book/record requirements, according to their press release.  Conversely, the Bar has not been user-friendly in getting a clear explanation into the hands of lawyers.

False YouTube Ad and Padded Resume Leads to Reprimand of Florida Judge

Tuesday, February 9th, 2010

The Supreme Court of Florida commanded Leon County Circuit Court Judge Angela Dempsey to appear for a public reprimand due to (1) a YouTube election advertisement entitled “re-elect” when she had been previously appointed to the bench and (2) a flyer claiming she had 20 years of legal experience when she had been admitted to practice in 1994.  According to the opinion, she admitted the allegations which the Court concluded “was done for the purpose of bolstering her own experience and credibility to the voting public.”

In August 2008, Judge Dempsey won by nearly 60% of the votes.

We could not find the YouTube video with the title “re-elect” but we did find this election ad.  At least one website suggested that the video title was written by the judge’s campaign manager without her knowledge.  Another website suggests that “re-elect” is an appropriate term under election laws.  However, the YouTube ad coyly mentions “18 years” in an incomplete sentence while the remainder of the advertisement focuses on “experience” — even challenging others for how they “talk” about experience.

This article points out that, in 2008, the judge had 14 years of experience NOT 20 years or even the “18 years” mentioned in the video.  Looking at Judge Dempsey’s attorney profile, she graduated from law school in 1993.  Presumably, that means she entered law school in 1990 right after college.  Is she is calculating “18 years” beginning the moment she stepped in law school?  Given that the voiceover simply says the words, “18 years,” with nothing more, the viewer may be left to assume she’s been a member of the Florida Bar for 18 years.

While on the topic of peering into a candidate’s questioned resume, one might wonder if there is a gap of time between her 1993 graduation and 1994 bar admission.  Also unclear is how she lists her work as an assistant state attorney beginning in March 1994 when she was not admitted to practice until May 2, 1994.

The Supreme Court did not specifically indicate if a campaigning judge could pack in time during law school as legal experience.

“The facts of this case are enough to make any legal ethics professor cringe.”

Monday, February 1st, 2010

So says the Second DCA on Friday in William H. Winters v. Richard Mulholland v. Marc E. Yonker (Villanti, Casanueva, and Fulmer).

A 15-year associate plotted his move from a law firm to solo practice and reportedly (1) removed and copied at least one client filed, (2) kept client files with him and returned the files with some documents missing, and (3) knew of his girlfriend and former paralegal “hacking into the firm’s system to obscure client contact information.

The case went to trial and resulted in a $1.47 million judgment based upon a civil theft claim.  The appellate court acknowledged that the plaintiff law firm had successfully proven civil theft — but not causation.  In short, the copying of the file; the holding of the files; the missing documents; and the hacking were never proven to proximately cause the loss of the clients.

UPDATED || The Florida Bar reports that all of these lawyers above possess active Florida law licenses.

A Frustrating Attempt to Find Current Lawyer Web Advertising Rules in Florida

Sunday, January 17th, 2010

Confused by what you can put on your law firm website, blog, Facebook or Twitter?  Who isn’t.  Here’s a primer… to the extent we could find the most current information.  If you are looking to develop a new advertisement or simply confirm your website is in compliance… good luck trying to find the rules.

As a starting place, the Florida Supreme Court is working off of proposals which began BEFORE TWITTER EVEN EXISTED.

* The good news is that there is a Florida Bar Standing Committee on Advertising.  Further good news is that they offer a “handbook on advertising” which is available on the web.  Too bad the link is broken.

* But we jest.  In part.  The Bar has a page regarding website advertising, including the handbook, here.

* By the way, if you want to find out information about the Bar’s Standing Committee on Advertising, do a Google search for it.  Yes, you’ll get results like that, where the first page of hits includes a site from… 1996.

* What does NOT readily come up in a Google search for “Florida Bar Standing Committee on Advertising” is this page, with the committee member names, which you can find by meandering and aimlessly drilling down on links in the Bar website.  The page provides nothing on the Committee’s recent activity.  I was unable to find more current information (can you?).

* The Standing Committee on Advertising has an (undated) set of Guidelines for An Attorney’s Statement of Qualifications and Experience.

* November 19, 2009: Florida Supreme Court issues In Re: Amendments to the Rules Regulating the Florida Bar – Rule 4-7.6, Computer Accessed Communications. This allows lawyers to create an “upon request” section for solicited communications by potential clients to lawyers, which would then exempt the lawyer’s communication advertisement from Rule 4-7.2.  Effective date was January 1, 2010.

* The Bar petitioned an extension to the January 1, 2010 date.  In this January 1 Bar News Article, there’s no indication of the status of the request for an extension (nor is there a clear indicator in the January 15 article, below).

* After this ruling, in mid-December 2009, the Board of Governors determined that the Bar will not review attorney websites, even if voluntarily submitted but will answer calls from lawyers asking specific questions.

* On December 29, the Florida Bar’s Standing Committee on Advertising issued guidelines to help lawyers meet the new rules.  Good thing the Florida Bar News’ January 15, 2010 article, “Panel Offers Guidance to Bring Lawyers’ Web Sites into Compliance” is available online with excerpts from those guidelines, since doing a Google search for the guidelines will get you nowhere.  The article is here.

* The front page of the Florida Bar site does not provide patent guidance.  The “Rules Update” page is confusing… but here it is.

* Were you thinking about joining the Standing Committee to see if you could change things?  The instructions on how to apply are here.  Were you able to find the link to the form?  (hint: hidden in the upper right corner)

If I am off the mark and missing some readily-apparent resources, someone please clue me in.

First District Rules on Production of Incident Reports in Nursing Home Case

Wednesday, December 23rd, 2009

The First District handed down a decision  confirming that production of nursing home incident reports was appropriate when the plaintiff met the two-prong test to overcome the work product privilege.  Oddly enough, there was no discussion of the application of the nursing home-specific incident report production standards set forth in Florida Statute Chapter 400.  The case is Paradise Pines Health Care Associates d/b/a Harts Harbor Health Care v. Estate of Bettye Jean Benekin (Hawkes, Kahn, Clark).

We are provided few details of the underlying claim or the information sought.  If we’re interpreting the decision correctly, the resident suffered from dementia and died — thus, the plaintiff and counsel could not obtain information — presumably about accident(s) or condition(s) — from the resident.  The incident reports in question therefore appear to specifically involve or relate to the parties; this does not appear to be a situation where a nursing home plaintiff is seeking production of incident reports for other residents.

Also worth noting, the opinion reported that names of employees and other witnesses were only available on the incident reports.  The Panel informs us that there was “no serious argument has been made that the incident reports at issue do not contain relevant information that the [plaintiff] need.”  Under Rule 1.280(b)(3), the court then held that the only issue was the second prong: undue hardship.

In interpreting that second step, the split panel concluded, “ [t]o determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the [plaintiff] had no realistic way to independently procure the information and the [defendant] had the incident reports at their immediate disposal.”

Under this analysis, once a defendant essentially forfeits the first prong of the privilege, the remaining analysis is a battle-of-hardship, where, if the defendant actually has the documents, their “hardship” in handing over incident reports is likely marginal at best.

Some deeper case-specific analysis may be warranted but it seems that the defendant may have been able to avoid this dispute by simply identifying personnel who were present/witnessed the events in question.  The plaintiff would then depose those individuals but the actual incident report(s) would remain privileged.  Shielding the identity of the only witnesses behind a privilege seems like a scenario where a court might reasonably conclude that the requesting party has no other recourse but to obtain the privileged documentation.

If the analysis in the opinion holds, the plaintiff might still be entitled to the incident reports even if they receive the names of witnesses since taking depositions of witnesses is likely more of a “hardship” than receiving an incident report (as the court put it, “[the trial judge] determined the burden faced by the [plaintiff] was unduly difficult in comparison to the ease with which the defendant could produce the reports.”).

JEAC Enters Ethics Fray Over Judges and Facebook… But Florida Wasn’t the First

Wednesday, December 16th, 2009

As has been recently well-hyped, there are certain restrictions on Florida judge’s use of social networks.  It apparently took awhile for everyone to notice a November 17 Judicial Ethics Advisory Committee report but once the New York Times got a hold of it nearly a month later on December 10, the Florida media kicked it into gear with front page coverage the next day in the Daily Business Review (and other publications).  But South Carolina had quietly already jumped into the fray.

While we were expecting some evidence of Internet fear and misunderstanding, both panels appear to have a reasonable grasp on both the zeitgeist of the new media and the purpose of arcane legal rules.

According to Florida JEAC, judges are not supposed to openly “select” and identify friends since the concern is that this creates the appearance that the “friend” sits in a special position.  A minority on the panel apparently felt that the word “friend” has been bent so far (from noun to verb to… nothing) that the implication isn’t there.  However, consider a situation where you are first appearing before a judge only to learn that your jurist is a (published) Facebook friend of your opponent.  Depending upon how heated your case gets, the ugly implication will roost somewhere in your mind.  Or your client’s.

Anyone can be a “fan” of a judge’s page since that does not involve the jurist making a selection.  Again, as the committee wrote, “to the extent that such ["friending"] identification is available for another person to view, the committee concludes that this practice would violate [judicial rules].”

If it sounds a bit heavy-handed, judges knew going into their situation that they would suffer some unusual social burdens and restrictions, as warned under Canon 5a.  Likely, there are far more sticky situations than Facebook.

But, judges can be friends with non-lawyers and lawyers who do not appear before them.  Additionally, judges can be associated with lawyers in other Internet groups, as long as the judge is not selecting/de-selecting the public association.

The South Carolina Judicial Department likewise has some opinions.  In their October 2009 opinion, which received virtually no press until after the Florida story broke, judges may be members of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position.

How did Florida and South Carolina beat everyone to the punch on these techno-legal issue?  One would expect New York or California on the cusp of this one.

Attorney Can Be Witness and Lawyer for One Party — Without Disqualification

Thursday, December 3rd, 2009

Several times a year we see Florida cases where one party seeks to disqualify the other side’s counsel.  Whether this strategy works, or is worth the hassle, remains to be seen.  It certainly does bring litigation to a grinding halt.

The Second District recently cleared some of the air surrounding circumstances when a lawyer can represent one party even though counsel may have to take the stand.  We turn to the facts of Alto Construction Company, Inc. v. Flagler Construction Equipment, LLC (Wallace, Fulmer and Northcutt).

Attorney Lorraine Jahn represents the defendant Alto both in this construction-related breach of contract case BUT she also was on retainer for Flagler and had previously had communications with Flagler employees about the dispute which blew up into this lawsuit (offhand, we wonder how that retainer relationship might be going these days…).  Once suit kicked up and she appeared for Alto, Flagler sought to disqualify her as a material witness and potential co-defendant.

At an evidentiary hearing, various arguments were raised and, inter alia, the trial court affirmed that the lawyer had not violated any ethical obligations.  That said, the trial court acknowledged that she may be a material witness due to her involvement in the issues prior to suit.  For that reason, the trial court entered an order disqualifying her.

On appeal, the Panel noted that the Rules Regulating the Florida Bar do not mandate an attorney’s automatic disqualification when he or she is called to testify.  See R. Regulating Fla. Bar. 4-3.7(a), “a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.”  Here, an Alto representative filed an affidavit that they did not intend to call her.  Case law indicates that a lawyer would be disqualified if called by the opposing party and if the lawyer’s testimony will be sufficiently adverse to the factual assertions or accounts offered on behalf of the client.”  In short, the general rule appears to be that (1) your own client can’t call you to the stand as a necessary witness or “central figure” and (2) you can’t testify contrary to your opening/closing.

Can You Twitter from a Courtroom?

Tuesday, November 10th, 2009

The answer is a mixed bag, with the least favorable outcomes in federal court under the Federal Rules of Criminal Procedure.

In a recent federal criminal case in Georgia, the Judge in U.S. v. John Mark Shelnutt wrote that, “the request to ‘tweet’ from the courtroom is denied.  According to the 4-page opinion, Rule 53 prohibits photographs and “broadcasting” from inside the courtroom.  The court acknowledges that “broadcasting” usually refers to TV or radio, it relied on Webster’s to broadly define broadcasting as widely disseminating information.  

Stated in more federal court-like manner, the judge concluded that contemporaneous transmission of electronic messages of courtroom activities intended to be widely and instantaneously accessible was impermissible broadcasting.  Our thanks to the ABA Journal Mobile for the scoop.

Contrast the foregoing with a Kansas federal court judge or a more recent Colorado state court judge.

We note, at least locally, Palm Beach Post reporter, Susan Spencer-Wendel, covers trials via Twitter.

Calling Opposing Counsel a A**hole Gets You… Lunch?

Tuesday, September 22nd, 2009

When quoting Shakespeare on the practice of law, nearly everyone quotes the line, “The first thing we do, let us kill all the lawyers” (Henry VI, Part II).  Yawn.  But a trial judge in Pennsylvania dug a little deeper for a more favorable lawyer quote from Taming of the Shrew.

The Legal Intelligencer, which heralds itself the oldest law journal in the United States, reported on a recent Pennsylvania federal district court order which called upon feuding lawyers to attend a professionalism CLE and eat lunch together — as a sanction for calling each other “asshole” during a deposition.  The ABA Journal Mobile likewise picked up the story.

Our setting is ridiculous: two African American lawyers, involved in a racial discrimination case, got into a dispute where one lawyer called the other one “asshole” four times and, in response, the other lawyer shot back at him, calling him.. “boy.”  The situation becomes more bizarre since the use of the word “boy” was at the heart of the lawsuit — since there were allegations a white female supervisor had referred to the minority plaintiff in such tones.

Ruling on motions for sanctions in  Huggins v. Coatesville Area School District, the trial judge spent 12 pages discussing the issue, borrowing the Shakespeare quote, “[a]nd do as adversaries do in law, Strive mightily but eat and drink as friends.”  According to this literature commentary, however, the character who says that line… is lying.

Second DCA Sets Out Two-Part Test for Vacating Default

Friday, September 18th, 2009

The Second District has provided wayward defendants in Florida a new tool to dig out of default judgments.  Indeed, it is easier than proving excusable neglect and a meritorious defense.

In Makes & Models Magazine, Inv. v. Web Offset Printing Co., Inc., the parties were at odds over printing services.  The plaintiff brought suit in Hillsborough County and then, for unstated reasons, filed another lawsuit two months later in Pinellas County for a dispute arising out of the same events.  The defendant reportedly did not get the second lawsuit from its agent for service of process and the motion for clerk’s default was sent to the wrong address.  They were clued in when the motion for default judgment was sent to the correct address.  Their motion to vacate, however, was denied because it was not verified nor accompanied by an affidavit to establish excusable neglect.  It is undisputed that the plaintiff knew the defendant had counsel and was defending itself in the first action (again, which arose out of the same events).

Back in 2008, the Second District ruled in U.S. Bank National Association v. Lloyd that “a trial court should vacate an ex parte default when the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact defendant’s counsel prior to seeking default.”  Thus, the test is whether (a) defendant is known to have counsel and (2) defendant is known to dispute the allegations.  In that situation, plaintiff must serve the defendant with notice of the application for default.

Notably, if the defendant can establish these facts, it does NOT need to provide evidence of a meritorious defense or excusable neglect.

Here, given the similarity between the lawsuits, the court held that the plaintiff knew the defendant had counsel and was defending similar issues in the first case.  Default was vacated.

The Panel (Villanti, Silberman and LaRose) concluded with the “tsk tsk” observation that a literal reading of the rules must give way to civility and professionalism when one party is aware the opposing party has counsel and intends to defend.  ”Although these concepts are not difficult to grasp, post-Lloyd, a party’s responsibility when faced with similar circumstances should be clear.”

Can a Lawyer Get a Copy of a Transcript Without Paying Court Reporter? (The Debate Continues)

Monday, September 7th, 2009

There is often an unspoken understanding that lawyers who attend hearings which are transcribed need to pay the court reporter to get a copy.

Thus, if there are 10 parties to a lawsuit and everyone wants a copy of a 15-minute hearing transcript, court reporters often take the position that the party ordering the transcript pays an “ordering fee” and all nine other parties then pay lesser, but still pricey, fee for “copies.”  Pricing varies from court reporter to court reporter, but often a “copy” of a transcript is not at the Kinko’s-level copy charges of 5-10 cents per page.  It’s often over $1 per page, perhaps significantly so.

We touched upon this issue in an earlier post where we discussed posting deposition videos on YouTube (which also skirted the issue of sharing expert depositions).  A subtle theme in that “white paper” at issue in the prior post was that some court reporters lay a claim to transcripts.  Given that court reporters put in long hours in that boring deposition which was meaningful only to you and produce quality work, you can see the reasonable origin of their thinking.  But the law may not be on their side.

The Tenth Circuit Court of Appeal issued an unpublished opinion on this very same issue, specifically a battle over about $4,000 in court reporter fees.  As the court warns, that order is not precedent but simply persuasive for non-party court watchers.  The case is United Transportation Union Local 1745 et al. v. City of Albuquerque.

The case involved an overtime dispute between employees (union) and employer (city).  Of note, that claim is a statutory one which includes a right to attorney’s fees.  During litigation, hearings before a special master occurred and the City order the transcripts.  The plaintiff lawyer did not order a copy.  Instead, he sought to have the court compel the City to file the transcripts so he could pay the clerk of the court regular photocopy charges for the transcript rather than pay a higher fee charged by the court reporter.  That was denied.  He then obtained the transcripts by making a public records request (presumably, these transcripts were not time sensitive).  Clever.  Again, that way he would pay the City for their photocopy charges and avoid paying a higher charge to the reporter.

Bottom line: the court held that the court reporter could not demand a fee under the circumstances.

The court wrote, “We have found no authority to justify requiring plaintiffs… to pay a fee to a court reporter for transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means.  On the contrary, both broad principles and particular holdings undermine the notion that court reporters may demand a ‘missed fee’ whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made — and was paid for making — for someone else.”

The court went on to note that a court reporter does not have a copyright since they are not the authors of the transcript.  That said, there was some precedent that a party cannot be compelled to produce transcripts in discovery in the same case.  Also not addressed is whether there might be a contract between the ordering party and the court reporter agreeing that there is no copying allowed… whether filing the transcript would alleviate that concern is unclear.

We’re of mixed minds on this issue, not so much in terms of the strict legal rights but in what is fair under the current market methods.  It seems an unnecessary windfall for a court reporter to charge a “reporter rate” for a transcripts as well as a heightened rate for copies (see the example above, where an original and nine copies are ordered — which could run hundreds of dollars).  That said, would it be “unfair” to have one ordering party and then they fire off nine copies for the other lawyers?  Or would this simply lead court reporters to increase the cost of the ordered copy?

As the 10th Circuit order is not precedent, it certainly will not end the issue.  Lawyers quietly pass these costs along to clients and typically do not want to make waves with friendly court reporters.  But, just as the billable hour is not always a reliable system for lawyer work, the “original/copy” pricing system does not seem a perfect fit for quality court reporter services.

Thanks to the ABA Journal (10th Circuit: Court Reporter Not Entitled to Fee for Copied Transcript) and the Exclusive Rights blog for the great scoop.

For related stories, take a peek at the Court Reporting blog.

Privileged Documents Sent to Expert Not Waived?

Tuesday, July 28th, 2009

Because so many people are involved in the everyday step of sending records from a law office to an expert, the mistake of inadvertantly including privileged information occurs now and again.  Is it waiver?  Will the jury see it?

In Nan H. Mullins, D.M.D. v. Alice Tompkins (Benton, Webster and Roberts),  the unfortunate defense counsel faced this discovery catestrophe and it lead to an appeal.  In this case, the defense expert received a copy of defense counsel’s evaluation letter sent to the defendant and insurance company as well as emails between defendant and lawyer.

The court held that the documents were ordinarily privileged and that mere accidental production does not automatically waive the privilege, see Fla.R.Civ.P. 1.280(b)(4)(B).  Since, here, the expert testified he never read nor relied upon them, there was no breach and no reason for disclosure (although we are curious how this was not caught during the expert’s review of what was sent to him and the lawyer’s pre-deposition conference).

The Panel further pointed out that even if it was discoverable, it may not be admissible to be paraded in front of the jury.

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