For lawyers, the term “professional ethics” has a more specific meaning than what can be found in a dictionary or in an academically oriented law school class. “[E]thical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession.” Azar v. Garza, 138 S. Ct. 1790 (2018).
Members of The Florida Bar are professionally bound and obligated to follow the specific rules found in The Florida Bar Rules of Professional Conduct, which are delineated in Chapter 4 of The Rules Regulating The Florida Bar. See, The Florida Bar Re Rules Regulating The Florida Bar, 494 So.2d 977 (Fla. 1986). These rules are based upon The ABA Model Rules of Professional Conduct. However, the Florida Rules have been amended over the years and they do not exactly track the ABA Rules.
The Rules are not simply general statements and phrases recommending moral good conduct. They contain specific guidance on such matters as conflicts of interest and communications with clients and third parties. Therefore, every lawyer should thoroughly review the Rules on a regular basis, to be familiar with the conduct permitted and proscribed by the Rules.
The most critical issue to investigate is whether the notice of appeal, petition, or notice to invoke discretionary was timely filed. Historically, this was an ironclad rule with absolutely no exceptions. However, with the advent of hurricanes there are now exceptions established by administrative orders issued by The Florida Supreme Court.
The second most critical step is deciding which remedy to use. In some situations where it is not clear which remedy to use, attorneys have filed in the alternative or separate notice and petition. However, the First District Court of Appeal sanctioned an attorney where the “sole purpose of this appeal was not to challenge the ancillary cost order identified in the notice of appeal, but to use it as a pretext for making constitutional arguments about the fee statute despite the fact that counsel knew or should have known that the retainer and fee order was not reviewable in an appeal of an order arising out of an ancillary proceeding.” O’Connor v. Indian River Cnty. Fire Rescue, No. 1D15-4986, at *5 (Fla. 1st DCA May 20, 2016). See also Massa v. McNutt, 172 So. 3d 516, 517 (Fla. 5th DCA 2015) (Court imposed sanctions because “there was absolutely no basis in law or fact to support filing the notice of lis pendens or the motion for extension of lis pendens in this Court”).
After a notice or petition has been filed (which is often done by the trial attorney), the appellate attorney has an independent duty to make sure there is a non-frivolous basis for proceeding. See Sanchez v. State Farm Fla. Ins. Co., 997 So.2d 1209, (Fla. 3d DCA 2008) (denying [appellee’s] motion for appellate attorney fees when appellate record reflected “de minimis” activity); Magic Tinting Window & Car Alarm, Inc. v. Scottsdale Ins. Co., 151 So. 3d 495 (Fla. 3d DCA 2014). But see Braxton v. Grabowski, 125 So. 3d 936, 938 (Fla. 2d DCA 2013) (“We certify conflict with Sanchez.”); Schwades v. America’s Wholesale Lender, 146 So. 3d 150 (Fla. 5th DCA 2014).
An appellant may not avoid its obligation to pay appellee’s attorney’s fees by filing a notice of voluntary dismissal after issues had been fully briefed. Agency for Healthcare Admin. v. Bayfront Med. Ctr., Inc., 145 So. 3d 888 (Fla. 1st DCA 2014).
Upon filing the notice of appeal, the appellate attorney is required to file Directions to the Clerk and Designation to the Court reporter. If there was no court reporter at the hearing, the appellate attorney should prepare a Statement of Evidence and Proceedings, in compliance with Florida Rule of Appellate Procedure 9.200(b)(5).
Failure to file a transcript of the hearing or a statement of evidence or proceeding could subject the attorney to a sanctions order. E.g., Ruth Cosner & Law Firm Partlow v. Michael Park, 178 So. 3d 964 (Fla. 4th DCA 2015); Sexton v. Ferguson, 79 So. 3d 51, 54 (Fla. 4th DCA 2011); Maradriaga v. 7–Eleven, 35 So.3d 109, 110 (Fla. 1st DCA 2010); Skarka v. Lennar Homes, Inc. 29 So.3d 1170, 1171 (Fla. 1st DCA 2010); Gopman v. Dep’t of Educ., 974 So.2d 1208, 1212 n. 3 (Fla. 1st DCA 2008).
“The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities.” Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 505 (Fla. 1982).
It is well settled that appellate courts can award appellate attorney’s fees under this provision [section 57.105]. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 570 (Fla.2005); Waddington v. Baptist Med. Ctr. of Beaches, Inc., 78 So.3d 114, 117 (Fla. 1st DCA 2012). A finding under section 57.105(1)(a) or (1)(b) is “tantamount to a conclusion that the claim was frivolous when filed, or later became frivolous.” Eastern Indus., Inc. v. Fla. Unemployment Appeals Comm’n, 960 So.2d 900, 901 (Fla. 1st DCA 2007) (citing Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003)).
In the Interest of: A.T.H., 180 So. 3d 1212, 1215-1216 (Fla. 1st DCA 2015)(bold emphasis supplied).
Note that the attorney may reasonably rely on his client’s representations. See e.g., Read v. Taylor, 832 So. 2d 219 (Fla. 4th DCA 2002); Carnival Leisure Indus., Ltd., v. Holzman, 660 So.2d 410 (Fla. 4th DCA 1995). Where an attorney asserts a good faith attempt to change an existing rule of law, that party is not subject to attorney’s fees under section 57.105. See Jones v. Charles, 518 So.2d 445 (Fla. 4th DCA 1988); see also O’Grady v. Potash, 861 So. 2d 1281 (Fla. 3d DCA 2003)(remanded “for an evidentiary hearing where counsel for Potash may present evidence, if any, that he acted in good faith based on the representations of his client.”).
Instead of imposing sanctions or dismissing appeals or petitions, the courts may refer the issue to The Florida Bar (Nocari Inv., LLC v. Wells Fargo Bank, N.A., 206 So. 3d 761 (Fla. 3d DCA 2016) or the local professionalism committee (Beckles v. Brit, 176 So. 3D 387 (Fla. 3d DCA 2015).
Recently, the Florida Supreme Court has taken a more forceful position by rejecting a referee’s findings of mitigation and imposing a more severe sanction. The Fla. Bar v. Schwartz, No. SC2019-0983, at *2 (Fla. Jan. 18, 2024).
The Florida Supreme Court has expansively revised the Florida Rules of Civil Procedure, which takes effect January 1, 2025, in a May 23 order, In Re: Amendments to Florida Rules of Civil Procedure, Case No. 0962. On December 5, 2024, the Florida Supreme Court issued opinion no. SC2024-0622 In Re: Amendments to Florida Rule of Civil Procedure 1.510 and New Florida Rule of Civil Procedure 1.202.
Finally, everyone should be aware that the Florida Supreme Court requires all attorneys to take technology-related CLE courses. See, Florida Supreme Court Case No. SC16-574, Sept. 29, 2016. The Florida Supreme Court amended Rule 6-10.3 “to allow lawyers to receive one general credit hour of . . . (CLE) for every four hours of pro bono service,” but for “no more than five credit hours.” Florida Supreme Court Case No. SC2024-0964, Oct. 31, 2024.