Wednesday, November 26, 2014

Fourth District Sanctions Counsel For Failing To Confess Error on Appeal

In Lieberman v. Lieberman (4D14-509), the Fourth District again explained what should be obvious: you have an obligation to concede error if controlling caselaw requires a reversal. In this case that did not happen. The court first discussed the merits of the petition for writ of certiorari. Relying upon “Rule Regulating the Florida Bar 4-3.7(a) which states that ‘[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client . . . .’”, the trial court disqualified the former husbands new counsel, which also happened to be his new wife. 

After noting that “certiorari jurisdiction lies to review an order disqualifying counsel from representing a client at trial,” the court concluded "that the order of disqualification departs from the essential requirements of law because it is not limited to Ferrer’s participation during the contempt hearing. As is well established by numerous Florida courts, the fact that Ferrer was a potentially necessary witness at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings.”

In this case, that holding did not end the court’s opinion. The court continued as follows:
Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and therein recognize that the order of disqualification was impermissibly overbroad. However, the actions of counsel for the former wife, Kenneth Kaplan, have transformed this “simple” matter into an unnecessary and protracted controversy by the failure of Kaplan to acknowledge clear and unambiguous controlling law directly adverse to his client’s position. As such, we are compelled to take the extraordinary but not unprecedented step of awarding appellate attorney’s fees as a sanction. See Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 40-41 (Fla. 4th DCA 2011) (awarding appellate attorney’s fees as a sanction for a frivolous defense of a patently erroneoustrial court order), review denied, 90 So. 3d 272 (Fla. 2012); see also Crowley v. Crowley, 678 So. 2d 435, 440 (Fla. 4th DCA 1996) (recognizing that “attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous . . . claims that contribute to unnecessary legal expenses, costs and a delay of the proceedings).  
Although the former husband did not cite KMS, Graves, or Cerillo, either here or in the trial court, Kaplan had an obligation to concede error based on those cases and the plain language of the rule.  
[A]ppellate counsel . . . has an independent [] obligation to present . . . the applicable law accurately and forthrightly. This will sometimes require appellate counsel to concede error where . . . the law is clearly contrary to the appellee’s position and no good-faith basis exists to argue that it should be changed.” 

Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005). The trial court’s order of disqualification did not just prohibit Ferrer from representing the former husband at the contempt hearing; it generally prohibited her from any further representation of the former husband. The disqualification order is contrary to the plain terms of rule 4-3.7(a), titled “When Lawyer May Testify,” which prohibits the lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” R. Regulating Fla. Bar 4-3.7(a) (emphasis added). The rule does not support general disqualification of counsel. 


In this case, there was no legal basis for disqualifying Ferrer from representing the former husband in any proceedings subsequent to the contempt hearing. Therefore, the former wife’s counsel, Mr. Kaplan, should have confessed error as to the trial court’s general order of disqualification. Failure to do so was a self-evident violation of counsel’s duty to disclose legal authority adverse to his client’s legal position and argument. R. Regulating Fla. Bar 4-3.3(a)(3); Dilallo ex rel. Dilallo v. Riding Safely, Inc., 687 So. 2d 353, 355 (Fla. 4th DCA 1997) (holding that rule 4-3.3(3) implies a duty to know and disclose adverse legal authority to the courts); see also R. Regulating Fla. Bar 4-3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”). 

Accordingly, we remand this matter to the trial court to assess the amount of appellate attorney’s fees to be imposed as sanction on the former wife for her counsel’s baseless defense in this proceeding. Santini, 65 So. 3d at 41.

Wednesday, November 19, 2014

Certiorari Requires Irreparable Harm

In Stockinger, et al v. Zeilberger, et al (3D14-550), the Third District dismissed a petition for writ of certiorari for lack of jurisdiction. The court stated explained the requirements for certiorari jurisdiction as follows:
To invoke this court’s power to issue a writ of certiorari, a petitioner for the writ must show that the challenged non-final order (1) departs from the essential requirements of law, (2) results in material injury for the remainder of the case, and (3) such injury is incapable of correction on post judgment appeal. [ ] These last two elements are sometimes referred to as irreparable harm. 
Internal citations have been removed. 

With regard to those requirements, the court stated that “there is a serious legal impediment to granting the writ in this case: Stockinger, Haider, and Kuhtreiber have not and cannot show irreparable harm at this stage of the proceeding.” 

"Certiorari review of non-final orders is a narrow remedy to be used in extraordinary circumstances. Certiorari is not a general license for appellate courts to closely supervise the day-to-day decision making of trial courts.” In this case, the court concluded that the petitioner had failed to establish (or allege) the existence of any irreparable harm.

In fact, “the order actually resolves with finality absolutely nothing. It forecloses nothing, terminates nothing, dismisses nothing, and sanctions no one.” Therefore, the petitioner had failed to establish irreparable harm which deprived the court of jurisdiction to grant the petition and issue the writ.