Florida Supreme Court Adopts New Rules On Professionalism For Lawyers

The Florida Supreme Court released a unanimous opinion today addressing the issue of professionalism. In Re: Code for Resolving Professionalism Complaints (SC13-688), the "Supreme Court of Florida Commission on Professionalism has requested that the Court adopt a Code for Resolving Professionalism Complaints which would include a structure to provide a process to more critically address professionalism issues in Florida." 

The Court noted the importance of professionalism and that "[s]urveys of both lawyers and judges continue to consistently reflect that professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today."


The Court agreed with the Professionalism Committee that additional measures need to be taken and stated that "While we continue our educational the Professionalism Commission concluded that further integrated, affirmative, practical and active measures are now needed. We agree."

The Court did not, however, "attempt to create an entirely new code of 'professional' or 'unprofessional' conduct " and agreed it should not "at this time, attempt to codify an entirely new 'Code of Professionalism.'” Using the following existing rules and guidelines, the Court created one integrated place to look for professionalism rules and guidance: "(1) the Oath of Admission to The Florida Bar; (2) The Florida Bar Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4) The Rules Regulating The Florida Bar; and (5) the decisions of the Florida Supreme Court."

Further "The Chief Judge of every circuit shall create a Local Professionalism Panel to receive and resolve professionalism complaints informally if possible. In the discretion of the Chief Judge, the Circuit Committee on Professionalism may be designated as the Local Professionalism Panel. The Chief Judge of each circuit is responsible for activating the respective committees."  

The Rules adopted by the Florida Supreme Court are found at Exhibit "A" to the opinion below.

In Re Code for Resolving Professionalism Complaints (SC13-688)

Court Cannot Read More Into Statute Than Plain Language Dictates (In This Case Verification Requirements)

In U.S. Bank v. Wanio-Moore (5D12-1746), the Fifth District reversed a trial court's order dismissing a complaint. The trial court dismissed the foreclosure complaint because the verification on the complaint did not provide the position of the person that signed the verification. However, the Fifth District reversed and held that "the rule does not require any information about the signer’s positional authority, and a court cannot “read more into [rule 1.110(b)] than its plain language dictates."

The opinion can be viewed HERE.

Florida Supreme Court Clarifies You Do Not Get Five Extra Days When Responding To A Proposal For Settlement

The Florida Supreme Court issued THIS opinion today and amended the Florida Rules of Civil Procedure to clarify that the additional five days allowed to respond to a filing/pleading served by email or mail does not apply when the pleading/email is a proposal for settlement. Therefore, a party has thirty days to respond to a proposal for settlement (not thirty-five).

Florida Supreme Court Reverses Decision That Found Class Action Waivers Unconscionable

In McKenzie Check Advance of Florida, LLC v. Betts (SC11-514), the Florida Supreme Court reversed a decision of the Fourth District Court of Appeal that determined a class action waiver provision violated Florida public policy. 

After the Fourth District published its opinion, "the United States Supreme Court issued its decision in AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1744 (2011), addressing the issue of whether the Federal Arbitration Act (FAA) 'prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.'” In Concepcion, the Supreme Court concluded the California public policy prohibiting class action waivers was preempted by the Federal Arbitration Act. 

In McKenzie, the Florida Supreme Court stated 

Applying the rationale of Concepcion to the facts set forth by the Fourth District in McKenzie, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of it being void as against public policy. Accordingly, we quash the Fourth District’s decision below. We decline to answer the certified question because it is moot in light of Concepcion. In other words, even if the Fourth District is correct that the class action waiver in this case is void under state public policy, this Court is without authority to invalidate the class action waiver on that basis because federal law and the authoritative decision of the United States Supreme Court in Concepcion preclude us from doing so.

Justice Pariente wrote the opinion for the court. Justice Quince, Justice Canady, Justice Labarga, and Justice Perry concurred. Chief Justice Polston and Justice Lewis concurred in result only.

The Florida Supreme Court's opinion can be viewed HERE.  The Fourth District's opinion, that is now quashed, can be viewed HERE.

Apostrophe-Challenged

In Bradshaw v. Boynton-JCP Associates (4D11-4242), the court reversed an order awarding attorneys fees based upon an offer of judgment because the terms of the offer were not clear. Specifically, the court stated that the offer was "apostrophe-challenged." Regarding the offer in this case, the court stated:

The offer, entitled “Defendant’s Joint Proposal for Settlement,” also appears to have been adopted from a form without sufficient editing; it requires “Plaintiff’(s)” to “execute a stipulation,” and “Plaintiff(s)” to “execute a general release of “Defendant(s).”

The rule requires that “the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” Therefore, the order awarding fees in this case was reversed.

The opinion can be viewed HERE.

Order Striking Pleadings Requires Express Factual Findings

In a short opinion, the Fourth District reversed an order striking pleadings for failure to make express factual findings. The opinion stated:

[Appellant] seeks reversal of the trial court’s order striking its pleadings and dismissing the case as a sanction for discovery violations.  The Bank asserts that the trial court abused its discretion by failing to make express factual findings demonstrating that such a severe sanction was warranted, as required by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).  We agree and reverse.

The opinion, Deutsche Bank v. Sela (4D11-3093), can be viewed HERE.

Judgment On Appraisal Award Reversed Due To Coverage Issues

In Citizens Property Insurance Corporation v. River Manor Condominium Association (4D12-901), the Fourth District reversed a trial court's judgment entered after an appraisal award. In the appeal, Citizens argued "...that the final judgment improperly awarded the appellee damages for: (a) property excluded under its policies, and (b) amounts that should have been deducted from the award by application of defenses the trial court refused to consider."

The Fourth District agreed, at least with regard to the first part of Citizens argument. The Court's twelve page opinion provides the details about the facts, arguments, and reasons for the holding. The ultimate conclusion is copied below:

For the reasons discussed above, we reverse the trial court’s final judgment and remand this cause with directions that the trial court enter a revised final judgment for the amounts set forth in the appraisal award less: 

(i) amounts previously paid; 

(ii) amounts allocated to exterior common elements excluded by the terms of the applicable insurance policies; and 

(iii) amounts awarded in excess of any amount agreed upon by the parties for roof repairs and water extraction for Buildings A and C if, and only if, the trial court concludes – after an evidentiary hearing – that the parties reached a binding pre-appraisal agreement stipulating to the amount owed. 

To the extent the trial court refused to adjudicate Citizens’ claims that amounts awarded were duplicative or represent losses to property the unit owners – as opposed to River Manor – were obligated to insure, the judgment is affirmed. 

The opinion can be viewed HERE. 

Justice Souter on Recusal - In re Bulger

Writing for the First Circuit in In re Bulger, Justice Souter's opinion provides a good discussion about recusal. You can view the opinion at THIS link. At issue was the defendant's petition for writ of mandamus seeking an order requiring the district court judge to recuse himself based upon allegations the judge had been invoked in the case (due to his role as an assistant US Attorney). Notably, the defendant was previously on the FBI's Ten Most Wanted list. After an analysis of what recusal is and isn't, and applying that analysis to the facts in this case, the opinion concluded:

In sum, despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim. The other mandamus conditions being satisfied, the petition is granted, and the case shall be reassigned to a judge whose curriculum vitae does not implicate the same level of institutional responsibility described here.

 

Breach of Fiduciary Duty Claim Can Be Waived

In Band v. Libby (2D11-4942), the Second District held (in addition to addressing other issues) that a claim for breach of fiduciary duty can be waived. The court stated:

We hold that a party may waive a claim based on the breach of a fiduciary duty. "Parties, by their own knowledge and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and common law rights . . . ." Ruggio v. Vining, 755 So. 2d 792, 795 (Fla. 2d DCA 2000). Indeed, "[a] party may waive any rights to which he or she is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished." Torres v. K-Site 500 Assocs., 632 So. 2d 110, 112 (Fla. 3d DCA 1994) (emphasis added). It follows that a claim based on a breach of fiduciary duty, like any other claim, may be waived.