Category Archives: Legal malpractice

Florida Bar Ethics opinion finds that offer and recommendation of waiver of ineffective assistance and prosecutorial misconduct for criminal plea is unethical

Hello and welcome to this Ethics Alert which will discuss the Proposed Advisory Opinion which was recently issued by the Professional Ethics Committee of The Florida Bar which found that that offering and recommending plea where defendant waives ineffective assistance and prosecutorial misconduct claims is unethical.  The link to the proposed advisory opinion is here:  Florida Bar Proposed Ethics Advisory Opinion 12-1.

The Professional Ethics Committee of The Florida Bar (PEC) met on June 22, 2012 and approved Proposed Advisory Opinion 12-1 regarding the ethical propriety of waivers of ineffective assistance of counsel and prosecutorial misconduct in criminal pleas.  The PEC considered the issue after a Florida lawyer requested an opinion.  The opinion initially notes that whether a particular plea agreement is lawful, enforceable and meet constitutional requirements is a legal question outside the scope of an ethics opinion; however, after reviewing the ethics issues, the PEC agreed with the majority of states which have found that it is improper for the prosecutor to make such an offer and for the defense lawyer to advise the client on accepting such an offer.

The opinion refers to Florida Bar Rule 4-1.8(h) regarding agreements limiting a lawyer’s liability for malpractice which states: “(h) Limiting Liability for Malpractice. A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.  A lawyer shall not settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.”

According to the opinion, since this plea agreement is between the prosecutor and the defendant and an ineffective assistance of counsel claim is not a malpractice claim, on its face, Bar Rule 4-1.8(h) does not prohibit advising a criminal defense client to enter a plea agreement that waives the client’s right  to claim ineffective assistance of counsel in a collateral proceeding; however, “a lawyer should not be permitted to do indirectly what the lawyer cannot do directly” and a defense lawyer’s recommendation that a client waive ineffective assistance claims is analogous to limiting malpractice liability, which is prohibited unless the requirements of this rule are met (i.e. the client is independently represented in making the agreement and/or the lawyer advises the person in writing that independent representation is appropriate in connection therewith).

In addition, unlike malpractice liability, which is a type of conflict that may be waived under specific circumstances with independent representation, the opinion found that the personal conflict created by such a plea agreement cannot be waived because of the adverse interests that it creates.  In concluding that a defense lawyer has a personal conflict of interest when advising a client a potential waiver of the right collateral proceedings regarding ineffective assistance of counsel and also a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. the opinion quoted Rule 4-1.7(a)(2), which provides as follows:  “(a) Representing Adverse Interests.  Except as provided in subdivision (b), a  lawyer shall not represent a client if: *** (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

According to the opinion, this conflict is also not one in which the client should be asked to waive and pointed to the comment to Rule 4-1.7 which states that: “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.”  Further, a disinterested lawyer would be unlikely to conclude that the criminal defense lawyer could give objective advice about that lawyer’s own performance.

With regard to the prosecutor’s conduct in offering the plea agreement, the opinion aligns Florida with other states which have found that such an offer is prejudicial to the administration of justice and also assists the criminal defense lawyer to potentially violate Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar.  The opinion states that the committee believed that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct; however, some prosecutorial misconduct can occur unintentionally and (in the rare instance) even intentionally.  Also, the existence of prosecutorial misconduct may be known only to the prosecutor, such as when the prosecutor has failed to disclose exculpatory information.  The opinion states that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position (and may be the only person) who is aware that misconduct has taken place.

According to the Bar’s notice, comments from Florida Bar members on the proposed opinion are solicited and the PEC will consider any comments received at a meeting scheduled for 9:30 a.m. on Friday, September 21, 2012 at the Buena Vista Palace in Orlando in conjunction with The Florida Bar’s Midyear Meeting.  Any comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why the Florida Bar member believes the PEC’s opinion is either correct or incorrect and may contain citations to relevant authorities and comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than August 14, 2012.

Bottom line:  As many of you know, I am a current member of the PEC which considered this opinion, although (much to my chagrin) I was unable to attend the September 22, 2012 meeting.  This was (and continues to be) a hotly debated and contested ethics issue and, if you are interested, I would encourage you to comment on this proposed PEC advisory opinion.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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Filed under Attorney discipline, Attorney Ethics, Ethics of criminal plea waivers, Florida Lawyer Ethics and Professionalism, Ineffective Assistance of Counsel, joe corsmeier, Lawyer discipline, Lawyer ethics, Legal malpractice, Prosecutorial misconduct ethics

Florida 4th DCA affirms $2 million dollar punitive damages award against Florida law firm in legal malpractice/breach of fiduciary duty lawsuit

Hello and welcome to this Ethics Alert blog  which will discuss the recent opinion of Florida 4th District Court of Appeal affirming a $2 million dollar punitive damages award against a Florida law firm.  The case is Young v. Becker & Poliakoff, P.A. — So.3d —, 2012 WL 1859108 (Fla. 4 DCA May 23, 2012) and the opinion is at:  http://www.4dca.org/opinions/May%202012/05-23-12/4D09-4869.rehg.op.pdf

According to the opinion, the law firm of Becker & Poliakoff was sued by Young for legal malpractice and breach of fiduciary duty which ultimately resulted in a jury verdict awarding $394,000.00 in compensatory damages and $4.5 million dollars in punitive damages.  Young appealed the trial court’s order remitting the jury’s punitive damages award from $4.5 million to $2 million, or alternatively, granting a new trial on punitive damages.  The law firm cross-appealed and argued that it was entitled to a directed verdict on legal malpractice and a new trial because of the trial court’s limitation on cross-examination of a witness.

The legal malpractice lawsuit was filed by Young based upon allegations related to the law firm’s handling of her federal employment discrimination suit against BellSouth Telecommunications (BellSouth).  The discrimination lawsuit was filed on May 1, 2001 by Thomas Romeo, an associate with the law firm, on behalf of Young and twelve other BellSouth employees.   At that time, the law firm was engaged in settlement negotiations on behalf of Young and several other plaintiffs in a separate action against BellSouth, which was styled Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004).  The Jackson case was filed against the law firm of Ruden, McClosky, Smith, Schuster & Russell, P.A. (Ruden) for alleged misconduct arising out of their settlement of a prior employment discrimination lawsuit against BellSouth, styled Adams v. BellSouth Telecommunications.

In the original Adams litigation, Ruden represented the plaintiffs (including Young) and negotiated a settlement for them.  In the later filed Jackson case, the plaintiffs alleged that Ruden, while negotiating the settlement in Adams, made an improper side deal with BellSouth and entered into undisclosed agreements that were unlawful and unethical.  Young was among the several plaintiffs in the Jackson case who hired the law firm to represent them against BellSouth and Ruden.

The law firm settled the Jackson case in the summer of 2002 for $8 million and received $2,927,540.00 for its fees and costs; however, before the case was settled, and while settlement negotiations were underway, Thomas Romeo and the law firm were hired by Young and twelve other plaintiffs to file a separate federal lawsuit on their behalf against BellSouth for alleged continuing discrimination.  Unknown to Young (but apparently known to the law firm), this new lawsuit was dismissed because of the expiration of the statute of limitations and this created a conflict of interest for the law firm while settling the Jackson case.  This alleged conflict formed the basis of Young’s claims of legal malpractice and breach of fiduciary duty.

In the malpractice lawsuit, Young alleged that the law firm intentionally delayed telling her about the dismissal of her case until after the Jackson case was settled.  The jury found that the law firm knew that the case had been dismissed, but withheld that information from Young so they could settle the Jackson case and secure the $2.9 million fee and cost reimbursement in that case.  The jury returned a verdict for Young of $394,000.00 in compensatory damages which consisted of $144,000.00 in past lost wages and $250,000.00 in damages for “pain and suffering, mental anguish, or loss of dignity.”  The jury also awarded $4.5 million in punitive damages against the law firm; however, the trial court remitted the punitive damages to $2 million, finding that the amount was not supported by evidence that the law firm had insufficient financial resources to comply with such a verdict without facing bankruptcy.  Young rejected the remittitur/new trial order and filed the appeal.

According to the opinion, Thomas Romeo, a former law firm associate who had been disbarred in 2003, testified at the malpractice trial.  Counsel for the law firm sought to introduce the disbarment and details of the disbarment prior to beginning his cross-examination.  The law firm’s lawyer argued that since Romeo was a key witness at the trial, his credibility was “squarely at issue” and the lawyer should be allowed to impeach Romeo’s credibility with evidence of his disbarment.  The trial court found that evidence of the disbarment was not admissible, relying on Tormey v. Trout, 748 So.2d 303, 306 (Fla. 4th DCA 1999) wherein the 4th DCA held that cross-examination of the defendant’s medical expert regarding administrative discipline was an improper attack on his credibility.  The law firm cross-appealed the denial of the directed verdict and this exclusionary ruling by the trial court.

The opinion found that the trial court’s exclusion of the testimony was correct and that Romeo’s testimony that he was not currently practicing law did not open the door to evidence of his disbarment since his testimony:

“was not misleading to the jury; he never represented to the jury, expressly or impliedly, that he was a lawyer in good standing, and he did not testify about legal issues as an expert witness. Romeo testified merely as a fact witness concerning his recollection of events surrounding the Young v. BellSouth case.  He referred to areas of discrimination law and procedures only to explain why he filed certain claims and took particular actions during the relevant time period. The fact that he was disbarred at a later date for unrelated reasons was irrelevant and unfairly prejudicial.  The trial court ruled appropriately and did not abuse its discretion in disallowing this evidence.”

The opinion affirmed the trial court’s order for remittitur or new trial based on the “economic castigation or bankruptcy” ground relied on by the trial court and found no error in the trial court’s denial of the law firm’s motion for directed verdict and the ruling on the proffered disbarment impeachment evidence.

Bottom line:  This case is a bit scary on multiple levels, including the large amount of punitive damages (even after the remittitur) and the potential serious Bar rule violations.  The opinion also found that evidence of the disbarment of a “fact witness” is not admissible (presumably proffered as an admissible prior bad act) if the testimony of that witness is not misleading or a misrepresentation…

…be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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