developments in the law of attorney ethics - Hillsborough County Bar ...

American Board of Trial Advocates, Tampa BayChapter in cooperation with the HillsboroughCounty Bar AssociationPRACTICING WITH ETHICS, CIVILITYAND PROFESSIONALISMDEVELOPMENTS IN THELAW OF ATTORNEYETHICSMay 31, 2012Stetson University College of LawChester H. Ferguson Law CenterThomas J. RoehnCARLTON FIELDS, P.A.Tampa, Florida23138930.2 Copyright © 2012, Carlton Fields, P.A. All Rights Reserved.

TABLE OF CONTENTSPageI. PrologueII. Recent Rulings on Ethics 51. Attorneys Fees (Rule 4-1.5) 52. Conflicts of Interest (Rules 4-1.7 – 4-1.11) 83. Candor towards the Tribunal (Rule 4-3.3) 154. Fairness to Opposing Party and Counsel (Rule 4-3.4) 185. Misconduct (Rule 4-8.4) 246. Trust Funds (Rule 5-1.1) 267. Prosecutor’s Special Responsibilities (Rule 4-3.8) 288. Meritorious Claims and Contentions (Rule 4-3.1) 299. Objectives and Scope of Representation (Rule 4-1.2) 3010. Attorneys Leaving Law Firm (Rule 4-5.8) 3011. Supervision of Non-Lawyers (Rule 4-5.3(b)) 3112. Clients Right to Counsel of Choice (Rule 4-5.8(b)) 3213. Advertising (Rules 4-7) 3414. Confidences (Rule 4-1.6) 3315. Impartiality and Decorum of the Tribunal (Rule 4-3.5) 3716. Competence (Rule 4-1.1) 4317. Truthfulness in Statements to Others (Rule 4-4.1) 4418. Communications with Person Represented by Counsel (Rule 4-4.2) 4519. Communicating with Client (Rule 4-1.4) 4623138930.2 Copyright © 2012, Carlton Fields, P.A. All Rights Reserved.

20. Diligence (Rule 4-1.3) and Expediting Litigation (Rule 4-3.2) 4721. Lawyer as a Witness (Rule 4-3.7) 4722. Declining or Terminating Representation (Rule 4-1.16) 4823. Mediator Discipline 48III. Recent Events 49IV. On the Horizon 51V. Technology And Its Ethical Implications 54A. Case Study 54B. Areas of Ethical Concern with Technology 551. ABA Commission on Ethics 20/20 – Confidentiality 552. The Cloud 573. Blogs 584. Twitter 585. Facebook/LinkedIn 586. Chat Rooms 597. Crowd Sourcing 598. Groupon 599. Smart Phones 6010. Meta data 6011. Electronic Storage Media 60Exhibits23138930.2 Copyright © 2012, Carlton Fields, P.A. All Rights Reserved.

I. PROLOGUE“As the number of lawyers increases to an unprecedented level, the responsibility of ensuringthat all lawyers conduct themselves within the ethical bounds required by the Rules Regulatingthe Florida Bar continues to be a top priority for this Court.” The Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011).The relationship between ethics, the subject of this presentation, and professionalism, the topic oftoday’s seminar, was succinctly discussed in a recent Florida appellate opinion.“There is a difference between ethical and professional. I have always conceived of ethics asthe minimum standard, the floor level of behavior that should be expected of a lawyer.Professionalism is something beyond that. Although the advocacy of counsel for the plaintiffwas zealous, “zeal cannot give way to unprofessionalism….” See Thomas v. City of North LasVegas, 122 Nev. 82, 127 P.3d 1057 (2006). There is a divide that must be recognized. Beingprofessional means acting with civility, fairness, grace and honor, and in the best interests of oursystem of justice. It’s the kind of thing that makes a kid look up and say, I want to be a lawyer.I hope no kid wants to emulate what we saw in this case.” Judge Monaco’s concurring opinionin: State Farm Mutual Auto. Ins. Co. v. Curran, 83 So. 3d 793 (Fla. 5 th DCA 2011).This presentation will address recent developments in that ground floor level of performance,ethics, the basic foundation upon which professional behavior is to be constructed. Thefollowing recent two cases illustrate the type of conduct we must all avoid if we are to practicewith professionalism.(1) Bedoya v. Aventura Limousine & Transportation Service Inc., 2012 WL 1828066(S.D. Fla. May 16, 2012). The case discusses Rules 4-1.6, 4-4.2, 4-4.4, 4-8.4, 4-7.4and 4-7.6. Rule 4-4.2o Contact with a person previously represented by counsel in a claim againstadversaryo Contact with an officer of adversaryooContact with present independent contractor who could bind adversaryContact with officer: Attorney said either: “Dude, you guys are a bigcompany. You need to have outside counsel who specializes in this stuff.”Or: “Scott, you are a big company and can afford better representationthen Mr. Coupal… and that he could never settle with him.” Rule 4.7.4(a)o Client soliciting more clients Rule 4-7.6(b)o Interactive website with press release on this case Rule 4-1.6o Using information gained in confidential settlement discussions in anothercase23138930.2 Copyright © 2012, Carlton Fields, P.A. All Rights Reserved.

Rule 4-4.4(b)o Using a confidential inadvertently received email Rule 4-8.4o Email to opposing counsel: “you are not a trial lawyer,” “We are notinterested, nor are our clients, in settlement discussions with you as longas you are the lawyer on the other side. You are causing your client agreat disservice,” and “Nobody on this side of the internet cares.”o Taunting opposing counselo Wearing shorts, tee shirt and tennis shoes at depositiono Scheduling depositions at a Dunkin Donutso Drawing obscene pictures during a deposition and showing them to femaleco-counsel – who laughs out loud at themo Angry Birds during depositiono Disqualified whole firmo Didn’t trust to enforce ethical screen(2) In The Florida Bar v. Gwynn, ___So. 3d ___ (Fla. 2012) 2012 WL 489 234 (Feb. 16,2012). The bankruptcy court issued an order finding that attorney Gwynn:1) Failed to expedite Litigation in best interest of her client.Rather, she: Filed Numerous motions for sanctions against opposing counsel; Made numerous frivolous claims needlessly delaying the case; Filed frivolous motions just to harass opponent and counsel.2) Failed to be competent in the representation. Failed to verify and research claims.3) Was not candid with the Tribunal. Made allegations in pleadings and testimony that were incorrect orfalse4) Violated the impartiality and decorum of the Tribunal. Continued to file hundreds of pages of documents pursuant to“notices” after she no longer represented anyone in the case (thesewere hearsay documents, unrelated to the bankruptcy matter,improperly attempting to influence the court). Court ordered her to stop - she didn’t Court issued another order to stop filing Fined and sanctioned her in the amount of $14,000 District Court affirmed the order Bar Referee adopted the order it as its findings of fact Supreme Court affirmed 91 day rehabilitative suspension23138930.2 2

An excellent illustration of how an experienced court expects us to practice withprofessionalism and civility is contained in Sahyers v. Prugh, Holiday & Karatinos, P.L., 560 F.3d 1241 (11th Cir. 2009); rehearing denied with concurring and dissenting opinions 603 F. 3d888 (11th Cir. 2010); cert denied 131 S.Ct. 415, 178 L.Ed. 2d 323 (2010).Sahyers a former paralegal filed an action against her former employer law firm foralleged violation of the Fair Labor Standards Act. The suit was filed without a pre-suit demand.The defendant served an offer of judgment which the plaintiff accepted. The plaintiff moved forfees. United States District Court Judge James Moody denied fees finding that in some cases a“reasonable fee is no fee at all and this was such a case.” Judge Moody stated:“This Court is not ruling that a pre-suit letter is always required,but in this case, the Plaintiff’s lawyer did not even make a phone call to tryto resolve the issue before filing suit. The Defendant is a law firm. Priorto filing suit in this local area, it is still reasonable to pick up the phoneand call another lawyer so it won’t be necessary to file suit. The defenseproffered by Plaintiff’s lawyer for not doing so is that his client instructedhim to file suit first and ask questions later…[T]he Court reminds him thatthe lawyer is the officer of the Court, not the client. This [C]ourt will notpermit lawyers to file unnecessary litigation and palm it off on theirclients.”The Plaintiff appealed Judge Moody’s ruling and the Eleventh Circuit Court of Appealsaffirmed the denial of attorney fees in an opinion containing the following observations:“In general, a prevailing FLSA plaintiff is entitled to an award of some reasonable attorney's feesand costs. [citations omitted]. But the district court treated this case as an exception to that ruleby finding that a reasonable fee and cost award here was zero. The district court, in substance,based this exception on its inherent powers to supervise the conduct of the lawyers who comebefore it and to keep in proper condition the legal community of which the courts are a leadingpart. Plaintiff criticizes this decision as an abuse of discretion. We disagree.That federal courts are accorded certain inherent powers is well-established. Chambers v.NASCO, Inc.. 501 U.S. 32, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991). Those powers are notgoverned by rule or by statute, "but by the control necessarily vested in courts to manage theirown affairs so as to achieve the orderly and expeditious disposition of cases." Link v. WabashR.R. Co., 370 U.S. 626, 82 S.Ct. 1386. 1389, 8 L.Ed.2d 734 (1962). Because of the potency ofthose powers, they must be "exercised with restraint and discretion." Chambers. 111 S.Ct. at2132.A federal court may wield its inherent powers over the lawyers who practice before it.This control derives from a lawyer's role as an officer of the court. 1 Theard v. United States,354 U.S. 278, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). It encompasses, among other things,the authority to police lawyer conduct and to guard and to promote civility and collegialityamong the members of its bar. 2 See, e.g., Chambers, 111 S. Ct. at 2132 ("[A] federal court hasthe power to control admission to its bar and to discipline attorneys who appear before it"); In re23138930.2 3

Finkelstein, 901 F.2d 1560, 1564 (11th Cir.1990) (court has power to supervise professionalconduct of lawyers who practice before it).The district court's inherent powers support its decision here. 3 Defendants are lawyersand their law firm. And the lawyer for Plaintiff made absolutely no effort-no phone call; noemail; no letter-to inform them of Plaintiffs impending claim much less to resolve this disputebefore filing suit. Plaintiff’s lawyer slavishly followed his client's instructions and-without aword to Defendants in advance-just sued his fellow lawyers. 4 As the district court saw it, thisconscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things)the judiciary to waste significant time and resources on unnecessary litigation and stood in starkcontrast to the behavior expected of an officer of the court. 5 The district court refused to rewardandthereby to encourage-uncivil conduct by awarding Plaintiff attorney's fees or costs. Giventhe district court's power of oversight for the bar, we cannot say that this decision was outside ofthe bounds of the district court's discretion. 61As Justice Cardozo (then –Chief Judge of the New York Court ofAppeals) once observed: “Membership in the bar is a privilege burdenedwith conditions. [A lawyer is] received into that ancient fellowship forsomething more than private gains. He [becomes] an officer of the court,and like the court itself, an instrument or agency to advance the ends ofjustice.” People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-71, 162 N.E.487 (1928).2We believe and defend the idea that maintaining a bar thatpromotes civility and collegiality is in the public interest and greatlyadvances judicial efficiency: better "to secure the just, speedy andinexpensive determination of every action and proceeding," as Rule 1demands. For background, see Fed. R. Civ. P. 1.3 [intentionally omitted].4 This explanation counts for little; a lawyer’s duties as a memberof the bar an officer of the court are generally greater than a lawyer’sduties to the client. See Malautea v. Suzuki Motor Co., 987 F.2d 1536(11th Cir. 1993) (“An attorney’s duty to a client can never outweigh his orher responsibility to see that our system of justice functions smoothly.This concept is as old as common law jurisprudence itself.”);Thomas v.Tenneco Packaging Co., 293 F. 3d 1306, 1327 (11th Cir. 2002).(“Independent judgment is an essential ingredient of good lawyering, sinceattorneys have duties not only to their clients, but also, as officers of thecourt, to the system of justice as a whole.”) (internal quotation marksomitted). Plaintiff’s lawyer showed little concern for the district court’stime and energy and no courtesy to his fellow lawyers.5 The customs of professional courtesy were important to thedistrict court. [quotation omitted].23138930.2 4

6 We have said that a court may not sanction a lawyer under itsinherent powers absent a showing "that the lawyer's conduct constituted orwas tantamount to bad faith." Thomas, 293 F.3d at 1320 (internalquotation marks omitted). We have assumed that awarding no attorneysfees and costs constitutes some informal sanction. Nevertheless, even ifbad faith is required, we conclude that the conscious indifference tolawyer-to-lawyer collegiality and civility exhibited by Plaintiffs lawyer(per his client's request) amounted to harassing Defendants' lawyers bycausing them unnecessary trouble and expense and satisfied the bad-faithstandard.The 11th Circuit denied Rehearing En Banc, (603 F.3d 888), and the concurring and twodissenting opinions didn’t criticize Judge Moody’s intention to enforce civility andprofessionalism in his court. The United States Supreme Court denied Cert. (131 S.Ct. 415).II.RECENT RULINGS ON ETHICS“In light of the propensity of appellate courts to reverse when an attorney’s conduct violates therules of professional conduct, trial judges are advised to take appropriate measures to preventsuch conduct.” Jackson v. Alejandro Pena M.D., 58 So. 3d 303, n.1 (Fla. 5th DCA 2011).1. Attorneys Fees Rule 4-1.5a. Roberta Santini M.D. et al. v. Cleveland Clinic, 65 So. 3d 22 (Fla. 4th DCA 2011).Charging lien case Trial court reversed by 4th DCA Withdrawing because of Bar suspension constitutes withdrawing on one’s ownvolition If such a withdrawal occurs before the contingency occurs the attorney receivesno feeb. Liebreich v. Trial Strategies Inc, 40 So. 3d 1 (Fla. 2d DCA 2010). 4-1.5 Jury consultant Contract between attorney and jury consultant, to be paid as a “cost” by client Court said Garko’s work looked like a paralegal’s or young associate attorney’swork Lawyers paid him $160,000 for that work (out of plaintiff’s recovery, not fees) Trial Court awarded more money to jury consultant, pursuant to contract, toGarko from client 2nd DCA affirmed but suggested suit against attorney by client since it felt workshould have been covered by the contingency feec. Guy Bennett Rubin, P.A. v. Guettler, 73 So. 3d 809 (Fla. 4th DCA 2011). Contingency Fee contract in business matter23138930.2 5

Contract provided if discharged client had to immediately pay attorneys hourlyratePlaintiff told attorney to drop case and discharged himClaim for hourly rate fees sent by attorney to clientViolates 4-1.5 on its faceDidn’t argue offending clause should be severedNo quantum merit because contingency not occurd. Brickell Place Condo. Assoc. Inc et al v. Joseph H. Ganguzza & Assoc., P.A., 31 So.3d 287 (Fla. 3d DCA 2010). Can’t assert retaining lien on a contingency fee contract if contingency not yetoccurred. (Ethics op 88-11)e. Mintz & Fraade, P.C. et al. v. Beta Drywall Acquisition LLC et al., 59 So. 3d 1173(Fla. 4 th DCA 2011). Legal malpractice claim Defendant sought to compel Arbitration under retainer agreement in NewYork – Contract involved interstate commerce – governed by FederalArbitration Act New York law does not govern strong public policy of Florida, which requirescompliance with 4-1.5(i) and construe against attorney New York law just requires disclosure Arbitration requiredf. Feldman v. Davis et al., 53 So. 3d 1132 (Fla. 4th DCA 2011). Contingency Fee Agreement (not personal injury) Arbitration Provision “If client decides to terminate the case after lawyer hasprovided substantial legal services, client must pay lawyer a sum equal to theprobable fee, to be determined by a panel of the American ArbitrationAssociation. Client and lawyer will split the cost of arbitration.” Trial court required arbitration 4th DCA reversed and remanded to trial court to determine if contract is void andunenforceable under 4-1.5(i) If any part fails to comply, it is unenforceable.Rule 4-1.5(i) of the Rules Regulating the Florida Bar provides that an attorney shallnot enter into an agreement with a client which provides for mandatory arbitrationprovisions unless the attorney explains in writing that he client should seekindependent legal counsel on the subject and the contract contain a specific notice inbold print. While the record does not reveal whether the law firm advised the clientin writing that he should consider obtaining independent legal advice regarding themandatory arbitration provision, the written contingency fee agreement does notinclude the mandatory notice. Thus, if the trial court finds that the law firm did notprovide the required written notice, the provision in the contingency fee agreementproviding for mandatory arbitration would be in violation of rule 4-1.5(i).23138930.2 6

Rule 4-1.5(i) became effective on March 1, 2008. See In re Amendments to the RulesRegulating the Florida Bar, 978 So. 2d 91, 92 (Fla. 2007). The subject fee agreementwas signed on May 6, 2008 after the rule had become effective. Thus, if themandatory arbitration provision in the contingency fee agreement does not conformwith Rule 4-1.5(i), the provision will be unenforceable on its face.g. Johnson, Pope, Bokor, Ruppel & Burns, LLP et al. v. Forier, 67 So.3d 315 (Fla. 2dDCA 2011). Engagement letter obligation to arbitrate malpractice claim was notagainst public policy and was therefore enforceable.h. The Florida Bar v. Patrick, 67 So. 3d 1009 (Fla. 2011). PIP lawsuit- Patrick represented Chiropractor who was denied payment on twoclaims by Progressive Insurance Mr. Riley $24 claim Mrs. Riley $24 claim Contingency fee contract provided client owed nothing if lost, however If insurance company won Chiropractor had to pay its fees Mediation ordered Patrick spent 60 hours on case prior to mediation Patrick $225/hr Progressive offered $2500. If accepted, client would have been paid in full andobtained precedent Chiropractor wanted to settle but Patrick didn’t. Patrick told him not to, andPatrick would be responsible for Progressive Fees if it won. Patrick convincedclient not to settle Mrs. Riley claim, client won and received his $24. By then Patrick had spent235.5 hours on the case Trial Court awarded attorneys fees in the amount of $120,772.50 Mr. Riley, client lost Progressive awarded $9,000 fees, $1200 costs Two appeals Progressive won both Chiropractor owed money to Progressive Misconduct 4-1.8(e) improper financial assistance to client One year suspensioni. The Florida Bar v. Goldbronn, Dec. 22, 2011 SC11-1019 Overcharged client $6,700 in an administration of a trust matter Suspended 1 yearj. The Florida Bar v. Beitra, Jan. 17, 2012 SC11-1018 Lincoln lending services (mortgage modification services) contacted him toperform legal services for it clients23138930.2 7

Lincoln charged clients a fee for its servicesLincoln paid Beitra flat fee – constituted improper fee splitting with non-clientTold clients Pro Bono – then tried to chargeSuspended six monthsk. The Florida Bar v. Levine, October 6, 2011 SC10-536 Shared fees with a loan modification group. Improper fee splitting with nonclient. Public reprimandl. SEC v. Mutual Benefits Corp. et al., 2010 WL 5148481 (S.D. Fla. 2010) Non-refundable retainer ($750,000) not subject to garnishment. Criminalinvestigation paid $750,000 before February 1, 2010 when Rule 4-1.5(e) wasamended to require non-refundable fee arrangements to be in writing. Earnedupon receipt and can’t be garnished.2. Conflicts of Interest Rules 4-1.7 – 4-1.11a. The Florida Bar v. Doherty, 37 Fla. L. Weekly 5 241a (Fla. March 29, 2012) Elderly client Doherty provided both legal and financial investment services 4-1.7(a)(2); 4-1.8(a) governed the situation Conflicts – Purchased annuities for widow Was paid commissions Used to pay back debt to client Revised estate planning documents Made himself PR and Trustee Didn’t advise client of conflicts Disbarredb. TTSI Irrevocable Trust v. Reliastar Life Ins. Co., 60 So.3d 1148 (Fla. 5th DCA2011). Insurance agent applied for policy on life of client Made a Trust the beneficiary Trust beneficiaries were agent and his children MSJ against Trust, no insurable interest no policy proceeds - no premium return Agent – Paul W. Moses II, also a lawyer – referred to the Florida Barc. The Florida Bar v. Scott, 39 So. 3d 309 (Fla. 2010). Represented multiple clients with competing claims to limited frozen funds 3 year suspensiond. In Re shared Memory Graphics LLC, ____ F3d ___ 2011 WL4390020 (Fed Cir2011). Upheld an advance waiver of conflict for in house counsel who had23138930.2 8

participated in joint defense agreement and then joined law firm that sued anotherparty to joint defense agreement.e. Geiger v. Spurlock, 30 So. 3d 704 (Fla. 5th DCA 2010).“PALMER, J., concurring specially. I concur in the majority’s affirmance of the trialcourt’s final order awarding attorney’s fees and costs pursuant to section 57.105 ofthe Florida Statutes (2005). I write to express my concern regarding the conflict ofinterest issues created by the fact that Attorney Marilyn Hochman’s law firm isrepresenting both Geiger and Hochman in this appeal.In the initial brief filed in this matter Hochman argued, inter alia, that it was error forthe trial court to sanction her by directing her to pay half of Spurlock’s attorney’sfees. If Hochman had been successful in arguing that point, Geiger could have beenresponsible for paying twice as much in attorney’s fees. It is disturbing thatHochman’s firm, while purporting to represent Geiger’s interests, sought a reversal ofa trial court ruling which, as a consequence, could have resulted in, an assessmentagainst Geiger of twice as much liability. See Mullins v. Kennelly, 847 So. 2d 1151(Fla. 5th DCA 2003); R. Regulating Fla. Bar 4-1.7. Unfortunately, we are unable todetermine, from the state of the instant record, whether Hochman’s firm apprisedGeiger of this conflict and the consequences of continued representation (such aswhether Geiger had a financial obligation to solely fund the prosecution of this appealeven though Hochman’s firm had a financial interest in obtaining a reversal of thesanction entered against it).”f. PMG Collins LLC v. R and G Enterprises LLC, 30 So. 3d 605 (Fla. 3d DCA 2010). Attorney for one party represented one member of the other party LLC in anunrelated matter Motion to disqualify deniedg. Starkes v. Flechner, 2012 WL360133 (SD Fla. 2012)“Plaintiff relies upon Campellone v. Cragan, 910 So. 2d 363, 365 (Fla. Dist. Ct. App.2005), for the proposition that corporate counsel could have a conflict representingboth a corporation and its principal where allegations exist of serious wrongdoing bythe principal injurious to the corporation. In the present action, however, theindividual defendants have separate counsel from the corporate defendant.” No conflicth. Razin v. A Milestone LLC, 67 So. 3d 391 (Fla. 2d DCA 2011). – LLC Managingmember hired attorney to sue LLC for collection of loan to LLC – Both membershired attorneys to defend LLC – Dueling motions to disqualify – The 2 nd DCA held:“In its order of disqualification, the trial court noted that it was troubled by whatappeared to be Razin’s conflict of interest in retaining counsel to represent Milestonein defense of Razin’s collection action. But even though this scenario does notappear to be an arm’s length transaction, the fact remains that Bahl agreed to theinclusion of article VII, section 1, in return for Razin’s $1,000,000 loan. Parties arefree to waive any potential conflicts of interest, see Rudolf v. Gray, Harris &23138930.2 9

Robinson, P.A., 901 So. 2d 148, 150 (Fla. 5 th DCA 2005) (nothing that shareholdersof corporation had expressly waived any conflicts of interest from law firmrepresenting corporation and individual shareholders), and we are powerless torewrite the agreement in order to make it more reasonable for Bahl. See EmergencyAssocs. Of Tampa, 664 So. 2d at 1003.”i. Zayas – Bazan v. Marcelin, 40 So. 3d 870 (Fla. 3d DCA 2010). Officers of corperation waived right to seek disqualification of counsel due to aconflict of interest Waited 2 1/2 years after filing of lawsuitj. Skyway Communications Holding Corp. v. Island Capital Management, 415 B.R. 859(B.R. M.D. Fla. 2009). Motion to disqualify Debtor corporation and purchaser of all of its stock in its Chapter 11 proceedingare the same corporate entity Former’s officer’s and director’s waiver of attorney client privilege didn’t waivecorporation’s right to oppose conflict of interest Fraudulent transfer action substantially related to prior securities action Counsel disqualified due to conflictk. Matrix Employee Leasing Inc. et al v. Pool, 46 So. 3d 1147 (Fla. 1st DCA 2010). Attorney representing worker’s comp claimant had previously been with firmrepresenting employer Disqualified Court has jurisdiction to “see that the code of professional responsibility, bywhatever name, are complied with” (46 So. 3d at 1149).l. Armor Screen Corp. v. Storm Catcher, Inc., 709 F. Supp. 2d 1309 (S.D. Fla. 2010) Attorney who had discussed case as a potential expert witness with competitors,but who was never retained, is disqualified from representing patent holder ininfringement case. He had received confidential information from competitors indiscussions and that could be unfairly used against competitors.m. The Florida Bar v. Roberto, 59 So. 3d 1101 (Fla. 2011). never charged these clients a monetary fee bought a cell phone for clients to perform client solicitation for him got business purpose drivers license and paid fee for client made two deposits into commissary account in jail gave $250 for clothes, groceries none associated with costs of litigation Provided financial assistance in violation of 4-1.8(e) Attorney suspended one year for having sexual relationships with two clients(criminal cases).23138930.2 10

n. Hartford Ins. Co. of the Midwest v. Koeppel, 629 F. Supp. 2d 293 (M. D. Fla. 2009). Insurance Company can sue attorney it retained to defend its insured supported by 4-1.7(e) stating that attorney can represent both insured and insurerif interest not adverse.o. The Florida Bar v. St. Louis, 967 So. 2d 108 (Fla. 2007). Attorney disbarred for entering into a secret agreement with other side, that for afee, not to bring future cases against it.p. The Florida Bar v. Ticktin, 14 So. 3d 928 (Fla. 2009). Attorney replaced client as CEO of a business in anticipation of client’s arrest andthen took position’s adverse to that client, supported cancelling client’s shares ofstock in another corporation and also took steps adverse to that client inattempting to resolve claims against those corporations Conflict No disclosure 91 day suspensionq. The Florida Bar v. Adorno, 60 So. 3d 1016 (Fla. 2011). Adorno represented clients in class action. The class had not yet been certified He settled the lawsuit for $7 million on behalf of 7 class action plaintiffs Those 7 only had $84,000 in damages He took a $2 million fee abandoned all other class members The Florida Supreme Court stated: “In the words of the Third District Court ofAppeal, which reviewed the propriety of that trial court’s decision to set aside theentire settlement after learning of these facts: “It defies any bounds of ethicaldecency to view class counsel’s actions as anything but a flagrant breach offiduciary duty.” Masztal v. City of Miami, 971 so. 2d 803, 809 (Fla. 3d DCA2007). The referee who heard this case described the settlement with sevenindividuals “to the detriment of the underdetermined/putative class – under thefacts of this case” as “prejudicial, illogical, and unexplainable.” Three year suspensionr. U.S. Specialty Ins. Co. v. Burd, 2011 WL 2433502 (M.D. Fla. 2011). Attorney owes duty to insurer Tripartite relationship despite general rule, here in this case the prospect of excess judgment didn’tcreate a conflict because everyone involved knew early on the claim exceeded thepolicy limit Interests of insured and insurer were parallel Coverage defense didn’t create conflict since exclusion not applicable No conflict here that abrogated attorneys duty to insurer Malpractice award upheld23138930.2 11

s. Continental Casualty Co. v. Przewoznik, 55 So. 3d 690 (Fla. 3d DCA 2011). Vessel sunk Insured sued carrier #1, attorney defended Insurer #2 sued insured over same sinking used same attorney the defendantinsurer #1 Insured moved to disqualify the insured; claimed confidential information Trial court disqualified – 3d DCA reversed Insured had no standing to assert conflict since Attorney was always adverset. State v. Bowens, 39 So. 3d 479 (Fla. 3d DCA 2010) Before Supreme Court. Briefed as of April 17, 2012 SC09-1181 Trial court erred in allowing Public Defender to withdraw due to excessivecaseload Declared Fla. Statute §27.5303(1)(d) unconstitutional PD didn’t show requisite conflict or prejudice No evidence actual or imminent prejudice Waiver of speedy trial isn’t enoughu. The Florida Bar v. Hughes, Dec. 22, 2011; SC11-1297Two separate conflicts situations:(1) Set up hedge fund with client/friend Law firm partnership agreement said he couldn’t do that without it’s permission Didn’t tell client/friend about potential conflicts Didn’t recommend get independent counsel advise re hedge fund entity Never filed tax returns sued by client friend, stipulated judgment $1,400,000 Told another client friend to put family fortune in a segregated account of hisfinancial entity for safe keeping. Not disclose conflict Not advise separate counsel Never in separate account $1,197,393.42 stipulated judgment Disbarredv. The Florida Bar v. Lack, Nov. 18, 2011, SC11-46 Entered into business transaction with client while representing him No written disclosures or consent Public reprimandw. The Florida Bar v. Couillard, Nov. 22, 2011 SC10-871 A court disqualified him in a case due to a conflict on interest He continued to provide legal advice and counsel to that company, drafted andediting documents filed with the court Suspended 30 days23138930.2 12

x. The Florida Bar v. Devane, Nov. 18, 2011 SC 11-2015 Wrote will for client (non relative) Made himself the PR He accepted bequest ($200,000) $63,000 for decedent’s dog to his wife Disbarredy. No conflict created when a person seeking legal services sends informationunilaterally to an attorney. No confidence regarding that information. Prof EthicsOpinion 07-3 (January 16, 2009).z. Hernandez v. Royal Caribbean Cruises Ltd, 2010 WL 3522210 (S. D. Fla. 2010)Attorney represented defendant in several lawsuits. Rule 4-1.9. Must prove“substantially related.” “Irrefutable presumption” of confidences disclosed. Neverrepresented the defendant in “slip and fall” due to proximity of a staircase to the “FloRider” surfing activity. Not disqualified.aa. Bedoya v. Aventura Limousine Transp. Serv. Inc., 2012 WL 1534488 (S. D. Fla.2012) Opposing counsel has standing to assert a conflict Rule 4-1.9, former client Attorney previously represented individuals against this defendant with claimssimilar to those of these plaintiffs (collective or class actions) Now represents defendant Are the matters “Substantially Related?” Court found it was using comment 6 to the Rule Same transaction of legal dispute, or if the current matter would involve thelawyer attacking work that the lawyer performed for former client Attorney and law firm disqualified. Rules 4-1.7; 4-1.9; 4-1.10 See subsequent ruling on Rule 4-4.2 issues at 2012 WL 1828066 (May 16, 2012).bb. Carles Const. Inc. v. Traveler Cas. & Sur. Co. of America, 2011 WL 3651110 (S. D.Fla. 2011) Counsel represented Plaintiff against Travelers Previously represented Travelers in a similar case and in underlying constructioncase, agreed no conflict because in those cases interests of Travelers and his clientaligned Disqualifiedcc. Dehres LLC et al. v. The Underwriters at Interest at Lloyd’s London, 2010 WL4823482 (S. D. Fla. 2010) Attorney represented consignment Jeweler, Company and owner in suit againstLloyds re: theft Owner arrested for arranging theft23138930.2 13

Attorney withdrew and then, with Jeweler’s consent, represented owners ofconsigned jewelry against Lloyds Lloyds moved to disqualify Denied since original and current clients interests are all aligned and all consented Rule 4-1.9dd. U.S. v. Alvarez, 2010 WL 4774649 (S. D. Fla. 2010) Government moved to disqualify counsel who represented two defendants Court denied since, even though one became government witness, this was aguilty plea and not a trialee. Suchite v. Kleppin, et al., 784 F. Supp. 2d 1343 (S. D. Fla. 2011) Plaintiffs asserted that attorney Kleppin, on behalf of his now co-defendant client,in the underlying FLSA cases asked questions at deposition and trial aboutplaintiffs’ immigration status and that constituted a FLSA “retaliation.” Moved to disqualify Kleppin from representing himself, his law firm and hisclient in this lawsuit Court found disclosure and consent Kleppin agreed to indemnify client Two defenses of client (1) conduct not unlawful; (2) didn’t authorize it; are notmutually exclusive nor adverse Not disqualified due to conflict Would be disqualified if Kleppin becomes necessary fact witness at trialff. Broin v. Philip Morris Companies Inc., ___ So. 3d ___ (Fla. 3d DCA 2012). 2012WL 934034, April 27, 2012 Two members of a class that settled filed a petition to enforce Two board members of institute created by settlement objected and moved todisqualify attorney who earlier were in the team who represented plaintiffs inclass action Trial court agreed and disqualified Third DCA reversed Right of plaintiff to counsel of choice outweighs prejudice to respondentgg. Shaw v. Broad & Cassel, 2012 WL 31505 (S.D. Fla. 2012) Legal malpractice case First case: Delaware (represented by Feldman) v. Shaw (Represented by Broad &Cassel) Patent case Second case: Shaw (represented by Feldman) v. Broad & Cassel malpractice case Broad & Cassel moved to disqualify since Feldman had confidential informationand conflict with Delaware Court denied since Delaware consented23138930.2 14

hh. U.S. v. Mack, 2010 WL 3385028 (M.D. Fla. 2010). Criminal defense attorneydisqualified where drug cartel paid his fee and he tried to prevent client fromcooperating with the Government.3. Candor Towards The Tribunal Rule 4-3.3a. JP Morgan Chase Bank N.A. v. Hernandez, 36 Fla. L. Weekly D1328 (d) (Fla. 3 rdDCA June 22, 2011). Mortgage Foreclosure lost note Judgment – Unilateral Promissory Note recorded dated 3 days after filed in court file mislead trial court to set aside judgment Reversed – Assessed Bank’s Fees against Counsel Referred counsel to Florida Barb. Bradley v. Cooper et al., 40 So. 3d 846 (Fla. 3d DCA 2010). Malicious Prosecution Only evidence by impeached felon MSJ granted on the basis of Judge’s belief, non moving party’s case based upon: “a matter of bold face, on the record, lies” Reversed Warning to counsel regarding Rule 4-3.3(a) prohibiting offering false evidencec. Opella v. Bayview Loan Serving LLC., 48 So. 3d 185 (Fla. 3d DCA 2010). –Mortgage Foreclosure, No service of complaint – alleged in the MSJ that service didoccur – Filed pro se “answer” letter – Reversed and forwarded to Bard. Muse v. State, 23 So. 3d 763 (Fla. 1 st DCA 2009)“The State having conceded the error; we note the professionalism and integrity withwhich the State has conducted itself in these proceedings.”e. Bronk v. State, 25 So. 3d 701 (Fla. 2d DCA 2010).Judge Altenbernd: “When this court commenced its review of this second postconviction appeal, we became concerned that Mr. Bronk had alleged a valid claimeven though he had cited no case law that was directly on point. Accordingly, weasked the State to respond.The State responded and disclosed this court’s decision in Lee v. State, 890 So. 2d1292 (Fla. 2d DCA 2005), which squarely supports Mr. Bronk’s claim. The Statealso recognized that the doctrine of law of the case did not prevent an award ofadditional jail credit at this time. This court acknowledges and appreciates theprofessionalism of the attorney who filed the State’s response.”f. Williams v. State, 45 So. 3d 14 (Fla. 1 st DCA 2010). “It is one thing for counsel toargue for a change in the law in the face of these adverse decisions or for counsel tosimply preserve an issue for purposes of subsequent review; but, it is an entirely23138930.2 15

different thing to continue to argue an issue that has been consistently rejected by thecourts without even acknowledging that the argument has been rejected, which iswhat Appellant’s counsel did in this case.”Concurring opinion: “However, for the reasons discussed below, I am unable to agreewith the majority’s treatment of appellant’s lawyer. Accordingly, I concur in theresult only.The majority takes appellant’s lawyer to task for “argu[ing] an issue that has beenconsistently rejected by the courts without even acknowledging that the argument hasbeen rejected.” Majority Opinion, at 3n.*. In support, the majority identifies elevencases from this court and three from other district courts of appeal which it says haverejected the same claims appellant makes here. I disagree.Of course, Florida’s Rules of Professional Conduct require that a lawyer “disclose to[a] tribunal legal authority in the controlling jurisdiction known to the lawyer to bedirectly adverse to the position of the client and not disclosed by opposing counsel.”R. Regulating Fla. Bar 4-3.3(3). Principles of professionalism would suggest thepropriety of disclosing decisions of other coordinate courts that are on point, as well.However, it strikes me that a decision can constitute “authority” for a point of lawonly if it has precedential value. A per curiam decision with no written opinion hasno precedential value. Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434So. 2d 310, 311 (Fla. 1983). Of the eleven cases from this court relied on by themajority, ten are per curiam affirmances without opinion…Based on the foregoinganalysis, I am unable to say that any of the cases relied on by the majority necessarilyrequires rejection of either of the issues raised by appellant’s lawyer in this case.Moreover, it strikes me that a lawyer defending a client in a criminal matter hasspecial obligations. Among them, it seems to me, is a responsibility to attempt toobtain a ruling squarely addressing the issues raised, so that the lawyer may seekreview by a higher court if unhappy with that ruling. When there are federalconstitutional issues raised, that responsibility also extends to preserving argumentsin courts like ours so that, if unfavorably resolved, they may be presented in federalcollateral proceedings. Finally, as our Rules of Professional Conduct recognize,because “the law is not always clear and never is static…, in determining the properscope of advocacy, account must be taken of the law’s ambiguities and potential forchange.” R. Regulation Fla. Bar 4-3.1 (Comment.)”g. Pamphile v. State, 36 Fla. L Weekly D1387(d) (4th DCA 2011). Appeal of conviction for unauthorized possession of a driver’s license oridentification card Denial of motion to suppress not appealed Plead nolo didn’t preserve right to appeal on suppression“We hope that Pampile’s attorney did not intend to intentionally mislead this tribunal.In his reply brief Pamphile’s attorney offers a direct quotation from Hawk: “the lackof an express finding that the issues [sic] is properly preserved is not fatal.” This is23138930.2 16

not what Hawk states. Hawk holds: “[T]he lack of an express finding ofdispositiveness…would not have been fatal.” 848 So. 2d at 478 (emphasis added).Hawk does not say what Pamphile’s lawyer says it says. Statements as egregiouslyfalse as those made by Pamphile’s counsel are the type that ordinarily lead tosanctions or referral to the Florida Bar for disciplinary action or both.”h. In Re Commitment of Larry Philips v. State, 69 So. 3d 951 (Fla. 2d DCA 2011).Dissenting opinion said: “Our interpretation of Larimore and Atkinson may have aperverse effect on sentencing in cases where a Jimmy Ryce proceeding is apossibility. Because a motion under rule 3.800(a) can be filed at any time andbecause, rightly or wrongly, we essentially permit de novo review of jail and prisoncredit under this rule, a defendant’s attorney is well advised to assure there is anunpreserved error in jail or prison credit when a client may be subject to civildetention. Once the error is rendered in the sentence, the defendant need only waituntil the final portion of his sentence to file a motion under rule 3.800(a) to guaranteethat the error will be corrected at a point that will divest the Department of Childrenand Family Services from jurisdiction. I see no reason why this outcome should berequired as a matter of law.”The Majority opinion countered: “Finally, the dissent suggests that defense counsel“is well advised to assure there is an unpreserved error in jail or prison credit” so thatthe defendant can delay correction of the error until it is too late to initiatecommitment proceedings. The documents before us do not suggest this occurred inthe present case. Moreover, while defense attorneys must zealously represent theirclients, they must also fulfill their duty of candor towards the courts and must avoidconduct that undermines the integrity of the process. See R. Regulating Fla. Bar 4-3.3. cmt. Ultimately, thought, it is the responsibility of judges and prosecutors toensure that legal sentences are imposed and that errors are timely corrected.”i. The Florida Bar v. Head, ___ So. 3d ___ (Fla. 2012). 2012 WL851045, 37 Fla. L.Weekly S231 (March 15, 2012). Stated in affidavit filed in an eviction action that he allowed tenants employee toaccess tenant’s business records when he didn’t Used fraudulent case number in letter posted on premises saying distress for renthad been filed when it had not Sent complaint for fees and release to his own client without advising client toseek counsel Suspended 91 days and 1 year probationj. The Florida Bar v. Head, 27 So. 3d 1 (Fla. 2010). – Failed to advise BankruptcyCourt of his receipt of $10,000 from refinancing of debtors loans (Chapter 13bankruptcy) not disclosed on HUD Didn’t tell court Filed suggestion of bankruptcy of his law firm when no petition filed Suspended one year23138930.2 17

k. The Florida Bar v. Owens, Feb. 20, 2012 SC11 – 2051 Auto accident/traffic citation In hearing court said “you had insurance in place” Didn’t correct Misrepresentation by omission 91 day suspension (other violations as well)l. The Florida Bar v. Hutt, Dec. 22, 2011 SC-11-1992 Forged consulting attorneys signature to a fee affidavit Suspended 45 daysm. The Florida Bar v. Steinberg, August 30, 2010 SC10-161 False statements in court under oath Disbarredn. Hill v. Lazarou Enterprises, Inc., 2011 WL 1401603 (S.D. Fla. 2011) Defendant’s counsel mistakenly represented to the court Plaintiff had denied arequest for admission Plaintiff didn’t correct that misrepresentation Plaintiff ordered to pay fees Plaintiff realized the misrepresenatation and asked defendant’s counsel tostipulate, refused Plaintiff had to file a motion Court “concerned” about defendant’s counsel’s conduct No sanctionso. Act Lending Corp. et al. v. Mortgage Ins. Agency Ltd, Inc. et al., 2010 WL 556315(S. D. Fla. 2010) Footnote 2 commended Plaintiffs’ counsel for “candor and professionalism” inretreating from an argument that could not be supported by the evidence Rule 4-3.3 Commented too many examples of far less professional conductp. Bautista v. Star Cruises, 696 F. Supp. 2d 1274 (S. D. Fla. 2010) Failed to disclose controlling 11 th Circuit law and argued law of other Circuits Violated Rule 4-3.3 Sanctioned under Rule 114. Fairness to Opposing Party and Counsel Rule 4-3.4a. Diaz, Reus & Targ, LLP et al. v. Bird Wingate, LLC II, Etc., 66 So. 3d 974 (Fla. 3dDCA 2011) Lawsuit 1 filed. Identical lawsuit 2 same day Voluntarily dismisses lawsuit 1 “with prejudice”23138930.2 18

Defendant raises dismissal of 1 as res judicata in 2 Plaintiff conducts ex parte hearing in 1 to change voluntary dismissal to "withoutprejudice" Succeeded in lawsuit but – Referred to the Florida Barb. City of Orlando v. Pineiro, 66 So. 3d 1064 (Fla. 5th DCA 2011). Wrongful death of a child Closing argument Hypothetical “if you don’t find for plaintiff and run into Orlando policedepartment in elevator, what are they going to be doing laughing” Value of a life – Send a message No punitive city – Sympathy regarding parents Counsel’s age Disparage expert “Will do whatever it takes” Dwight Howard comparison Violation Rule 4-3.4 Judgment for Plaintiff reversed by 5 th DCAc. The Florida Bar v. Knowles, 64 So. 3d 1195 (Fla. 2011) - 4-3.4(g) threateningcriminal prosecution for advantage in civil case “sent e-mail. Pay $20,000 or I will transfer to criminal division” Public reprimand Dissent wanted 90 day suspensiond. Irizarry v. Moore et al., ___ So. 3d ____ (Fla. 5th DCA 2012) 37 Fla. L. WeeklyD313(b) Voir Dire – “guilty” or “innocent” in civil case Suggested a fraudulent claim No evidence of fraud Mentioning in opening expert materials that would be excluded Reversed trial verdict New trial “we trust that civility will be more evidence at that proceeding” Cited to prior discipline of offending attorneye. Wingate et al v. Celebrity Crises Ltd., ___ So. 3d ___ (Fla. 3d DCA 2012) 37 Fla. LWeekly D355a February 8, 2012. Plaintiff’s counsel in 77 different cases bribed insider for settlement value ofcases – Motion to disqualify - Agreed to withdraw. Court ordered no $ to attorney Secret deal with new lawyer - contempt Appeal affirmed This case filed motion for costs on some of those that settled 77 cases “Mr. Wingate was evidently unfazed by the order of criminal contempt,undaunted by the unsuccessful appeal of that order, and undeterred by the23138930.2 19

disciplinary proceedings and his ultimate disbarment. Four days after this Courtissued the mandate in the first appeal, and in what appears to be a textbookexample of legal chutzpah, Wingate filed a motion with the trial court fordisbursement of costs, asserting Wingate was entitled to costs incurred in caseswhich had not yet been settled at the time of the contempt hearing. Once thosecases were settled, amounts representing costs were deposited by the Rivkind firmwith the clerk of court. The trial court denied Wingate’s motion “in light of thedishonest and contumacious conduct of … Wingate … as set out in the contemptOrder previously entered by this court,” finding Wingate was “not entitled to suchrelief.” This Appeal followed.”Affirmed trial court’s denialf. State Farm Mutual Automobile Ins. Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA2011). – UM policy claim – IME set - Email duel – No IME – Lawsuit – Insured won– No prejudice – Prelude to a bad faith case opinion:MAJORITY OPINION:“Finally, I agree with Judge Monaco’s concurring opinion that the insured’s pre-suitstrategy was a poorly disguised setup for a bad faith claim against State Farm and nota meaningful effort to resolve the matter without suit. There is no doubt thatinsurance companies sometimes engage in bad faith conduct, and, in these cases, aplaintiff is certainly justified in pursuing a bad faith claim. But justice is not servedby encouraging the sort of gamesmanship that occurred here. That sort of gameplaying is appropriate for a casino, not a courtroom.(MONACO, J., concurring.) I fully concur with the opinion of the majority. I writeonly because I am very disturbed by the actions of plaintiff’s counsel below. It is notbecause I believe that counsel did anything unethical. Rather it is because I amconcerned with the level of professionalism shown by him. I do not know Mr.Alpizar, but it appears from his approach to this case that he is a zealous advocate.This makes the actions he took on behalf of his client all the more disappointing.The entire letter and e-mail dance orchestrated by plaintiff’s counsel had as its rathertransparent motive the goal of putting the insurance carrier in a position where itcould not offer up the policy limits prior to suit, unless it did so without having amedical consultation that it had confidence in. This was about as thinly disguised abad faith trap as is imaginable. So what’s the harm? Beyond the fact that the carrierwas denied the opportunity to offer its policy limits in advance of suit, and thus toavoid a potential bad-faith claim, it put the civil justice system in general, and thedefendant in particular, through a completely unnecessary trial. Moreover, since therecovery was 46 times the policy limits, a bad-faith suit is undoubtedly on thehorizon. We ought not to encourage such behavior.There is a difference between ethical and professional. I have always conceived ofethics as the minimum standard, the floor level, of behavior that should be expected23138930.2 20

of a lawyer. Professionalism is something beyond that. Although the advocacy ofcounsel for the plaintiff was zealous, “zeal cannot give way to unprofessionalism…”See Thomas v. City of North Las Vegas, 127 P. 3d 1057, 1067 (Nev. 2006). There is adivide that must be recognized. Being professional means acting with civility,fairness, grace and honor, and in the best interest of our system of justice. It’s thekind of thing that makes a kid look up and say, I want to be a lawyer. I hope no kidwants to emulate what we saw in this case.”(SAWAYA, J., dissenting.) “This case is a prime example of how a clever litigant cangame the legal system and get away with it.Litigation is not a game of tricks and traps where clever litigants and their lawyersbreak contractual promises to achieve an unjust victory against an opponent intent oncomplying with its contractual promises. That sort of gamesmanship is anathema toall involved in the legal system who seek the truth by means of rules promulgated toachieve justice through fairness. When aberrant litigants and their lawyers get awaywith the spoils of that type of victory, it cheapens the currency of those rules, givesencouragement to others to do the same, and lends credence to the cynics who saythat such practice is endemic to the legal system. Here, the majority acknowledgesthe bad faith action Curran has created for herself and so the majority makes it a pointto say that its decision does not mean that Curran’s wrongful conduct “cannot beconsidered in the context of any subsequent action for bad faith.” Despite themajority’s acknowledgment of the inevitable bad faith action that will soon followand the majority’s recognition that what Curran did was wrong, rather than condemnher conduct, the majority declares it inconsequential, orders that State Farm pay herattorney’s fees and awards her full recovery under the policy. The final result of themajority’s ruling is that the only party that willfully and materially breached thepolicy walks away with the policy limits of $100,000 and a chance to litigate a badfaith claim, her lawyer walks away with his fees fully paid, and the party that footsthe bill for their wrongful conduct is State Farm, who is the only party that tried tofulfill its commitments and exercise its rights under the policy. This is the sort ofunjust outcome that the decisions in Goldman and De Ferrari attempt to prevent byholding wrongdoers who willfully and materially beach insurance contractsaccountable for their conduct. Even under Macias, Curran failed to meet her burdenof establishing that State Farm was not prejudiced by her wrongful conduct. I firmlybelieve that those decisions dictate the proper outcome here. I also believe that it istime to put a stop to this sort of gamesmanship in legal proceedings.” (See EX. 1 forwhat Judge Monaco labeled an "email dance".)g. Chin v. Caiaffa, 42 So. 3d 300 (Fla. 3d DCA 2010). Trial verdict reversed because of plaintiff counsel: Improper appeal to the passion and sympathy of the jury in opening statement Improperly convincing the judge to limit defense counsel’s cross-examination ofCaiaffa’s expert, Dr. Wender Improper character attack during cross Examination of main defense expert, Dr. Umlas23138930.2 21

Improper and prejudicial closing argumentAll of these prohibited by Rule 4-3.4(e)1) Opening (after being warned 3 times during voir dire)a. argumentativeb. golden rulec. arguing “blank check” fill ind. experts retained for a particular reason2) Closinga. golden ruleb. wrote a blank checkc. trying to fool youd. accused experts lyinge. lawyer drivenf. frivolous defenseg. value of human life Picasso painting analogyh. Fasani v. Kowalski, 43 So. 3d 805 (Fla. 3d DCA 2010) Picasso painting Slick talkers Corporate greed Corporate arrogance Make a couple of extra bucks Not do the right thing Defense counsel ridiculed plaintiff Kicking out in the street like a dog Golden rule – how much would it take for me to hit your head with a baseballbat? Improper argument New triali. JUA Enterprises, I, LLC et al v. Prentice, 48 so. 3d 109 (Fla. 4 th DCA 2010).Improper for attorney to attempt to seek an advantage before jury because evidencewas not presented when that lawyer kept it out of evidence.j. Linzy v. Rayburn, 58 So. 3d 424 (Fla. 1st DCA 2011). Improper to suggest someonewho was not even a defendant is poor and can’t pay judgment when there isinsurance. New trial.k. Samuel v. Torres, 29 So. 3d 1193 (Fla. 5th DCA 2010). Disclosure of defendant’s meager income during opening improper Justified new triall. Cascanet v. Allen, ___ So. 3d ___ 2011 WL 3516135 (Fla. 5 th DCA 2011).23138930.2 22

Improper for defense counsel to ask jury to consider whether fair to burden 18 yr.old defendant driver with a judgmentHad insuranceFather defendant as wellNew trialm. R.J. Reynolds Tobacco Co. v. Townsend, ___ So. 3d ___ 2012 WL 447282 (Fla. 1 stDCA 2012). If wait until end of improper and argument and object and move for mistrial –waive Have to specifically object to each distinct portion of argumentn. Professional Ethics Committee Opinion 07-1 (Sept. 7, 2007). If client provides youwith documents wrongfully obtained:(1) consult with criminal attorney to see if client committed crime(2) tell client can’t use(3) if client refuses, withdrawo. The Florida Bar v. Mitchell, SC10-637; SC10-639; SC10-1583; October. 5, 2010.The Florida Bar v. Mooney, SC10-640; SC10-1584; November 16, 2010. (See emailsattached as Exhibit 2) Suspension Anger Managementp. In Re Petition for Disciplinary Action against Peter James Nickita, Supreme Court ofMinn. (May 2012). Proceedings started for Nickitas’ alleged statement to opposingcounsel that he hopes she “sleeps with the fishes” and screaming “nose to nose” at herin the courthouse entrance.q. Motion for Sanctions in Buxton Arlington Pet LLC et al v. Pete & Mac’s Arlington,LLC, et al. Cause No. 348-256203-11 in the 348 th Judicial District Court of TarrantCounty Florida, Texas. Email tauntsr. Makes & Models Magazine, Inc., v. Web Offset Printing Co., Inc., 13 So.3d 178 (Fla.2d DCA 2009) Second lawsuit between parties Plaintiff took a clerk’s default“We cannot conclude without making one final observation. Web Offset’sargument pressed for a strict and literal interpretation of the default rules withoutany regard for civility or for the professionalism expected when one party isaware that the opposing party is represented by counsel and intends to defendagainst the claims at issue. 3 Although these are not difficult concepts to grasp,post –Lloyd, a party’s responsibilities when faced with similar circumstancesshould be clear.”23138930.2 23

s. Avista Management Inc. v. Wausau Underwriters Ins. Co., M.D. Fla. June 6, 2006(See Order at Exhibit 3) “Rock, paper scissors”t. Palma v. Florida Neurological Center LLC, 2011 WL 6153601 (M.D. Fla. 2011)Don’t assert personal opinion about fraud of adversary or its counsel.u. Rodriguez v. State, ___ So. 3d ___ (Fla. 3d DCA 2012) 2012 WL 1697052 (May 16,2012). Conviction reversed due to State Attorney’s improper bolstering thecredibility of a police officer in violation of 4-3.4(e).5. Misconduct Rule 4-8.4a. The Florida Bar v. Lobasz, 64 So 3d 1167 (Fla. 2011) suspended appeared at immigration hearing with former client and his new lawyer made argument Disbarredb. The Florida Bar v. Berthiaume, 78 So 3d 503 (Fla. 2012) issued bogus subpoenas to bank that was clearly misleading and designed toobtain bank’s records of a client of attorney no case not authorized by any law 91 day suspensionc. The Florida v. Behn, 41 So 3d 136 (Fla. 2010) Disbarred for not paying income taxes. Claimed his time was his “life capital” andderived no net gain from itd. The Florida Bar RE: Hudsons 75 So. 3d 215 (Fla. 2011). 2005 on voluntary inactive list At that time serving three year probation for prior disciplinary offenses for roadrage Not filed income tax for 2007, 2008 until early 2010 when he filed forreinstatement Bar opposed Referee & Supreme Court allowed Judge Canady’s dissent: “The Florida Bar has correctly sought to prevent thereinstatement of this lawyer, who has demonstrated contempt for the law. It doesdamage to the credibility of The Florida Bar to reinstate a lawyer who has sorecently flouted the federal income tax law and has otherwise shown a disregardfor the requirements of the law. I therefore dissent. (LEWIS and POLSTON, JJ.,concur.)”e. The Florida Bar v. Betterman, 33 So. 3d 686 (Fla. 2010) While suspended used bar card to gain access to private room at Miami-DadeWomen’s Detention Center (privilege of attorney visiting client) to visit friend23138930.2 24

Gained access to friend’s car at Diaz Towing told counsel, used bar cardDisbarredf. The Florida Bar v. Liberman, 43 So. 3d 36 (Fla. 2010) Pled guilty to trafficking in “ecstasy” Disbarredg. The Florida Bar v. Irish, 48 So. 3d 767 (Fla. 2010) Six felony convictions (Drugs) Failed to serve client (5 cases) Neglected client’s lawsuits Failed to send demand letter her agreed to send for client Disbarredh. The Florida Bar v. Frank, Feb. 20 2012 SC 12-231 DUI Public Reprimandj. The Florida Bar v. Lopez, Feb. 20, 2012 Notarized client’s pleadings in her absence Completed improper notarial certificates Misapplied funds for costs Failed to supervise assistant regarding deposits, not following proper trustprocedures Suspended 10 daysk. The Florida Bar v. Nathan, Feb. 24, 2012 SC11 -2177 Domestic violence act Suspended 90 daysl. The Florida Bar v. Owens, Feb. 20, 2012 SC11 -2051 Divorce Case – intimate relationship – no monetary fee charged Client ended it Sent her a bill $14,000 Custody matter Tried to pursue personal relationship No monetary fee charged to her After months pursuing her, she not interested, stopped and sent bill for depositionand said would bill her $18,000 for fees if she didn’t pay deposition bill Suspended 91 days (other violations)m. The Florida Bar v. Asbury, Jan. 19, 2012 SC11-2383 Mail and wire fraud, money laundering, fraudulent mortgages Disbarred23138930.2 25

n. The Florida Bar v. Gaskins, Jan. 31, 2012 SC11-1440 Structured transactions with banks to evade reporting requirements Suspended 2 yearso. The Florida Bar v. Shanafelt, Jan. 20, 2012 SC 12-46 Abandoned law practice Felony charge domestic violence and battery on law enforcement officer Emergency Suspensionp. The Florida Bar v. Crump, Oct. 14, 2011 SC 11-1988 No contest to felony child abuse Suspended until further notice since he didn’t tell Barq. The Florida Bar v. Duncan, Oct. 14, 2011 SC 11-1997 DUI manslaughter Suspended until further noticer. The Florida Bar v. Grocock, Dec. 22, 2011 SC11-1430 Charged by SEC with securities fraud and filed an offer to settle with SEC Suspended 90 dayss. The Florida Bar v. Hutt, Dec. 22, 2011 SC 11-1992 Signed name of consulting attorney to an attorneys fee Affidavit Suspended 45 dayst. The Florida Bar v. Schulman, October 25, 2011, SC11-1871 Civil judgment found he committed two acts of fraud in sale and transfer of realestate suspended until further notice. See: “A classic Florida swindle, with aRussian twist.” The Miami Herald 2/4/2012u. The Florida Bar v. Bon, October 19, 2011 SC11-2000 Submitted fraudulent bills to his law firm and clients in excess of $50,000 Submitted 86 separate requests for reimbursement of travel expenses that did notoccur Billed for hours not worked Emergency suspension until further notice6. Trust Funds Rule 5-1.1a. The Florida Bar v. Mirk, 64 So 3d 1180 (Fla 2011) $750 Didn’t tell non refundable So it was advance payment in trust Put in operating account Violation23138930.2 26

Another deal, money in trust Issued a check – dispute Stop payment order Disbursed to himself (oral flat fee agreement) Client was going to cash check, told $ not there $31,487.50 Disbarredb. TFB v. Amend, Feb. 20, 2012 (SC11 – 1664) Commingled by placing earned and unearned fees in her trust account. Public reprimand; 3 years probation Trust account workshopc. TFB v. Brown, Feb. 20, 2012 SC11 -1427 Disbarred for misappropriation $180,000d. TFB v. Dickson, Feb. 14, 2012 SC12- 237 Emergency suspension for misappropriatione. TFB v. Finkelstein, Feb. 20, 2012 SC11-1469 Suspended 20 days, 1 year probation fail to use proper trust accountingproceduresf. TFB v. Gifford, Feb. 20, 2012 SC11 -1182 Misappropriated $5,000 from trust of mentally disabled and blind client Disbarredg. TFB v. Hanly, Feb. 20, 2012 SC11-1217 Misappropriated trust Funds Disbarredh. TFB v. Blanco,Jan. 24, 2012 SC11 – 2424 Commingled trust and personal funds for 7 real estate transaction Public reprimandi. TFB v. Fontes, Jan. 30, 2012 Emergency suspension for misappropriating trust fundsj. TFB v. Balliro, Sept. 7, 2011 SC11 – 866 Emergency suspension for misappropriating funds from law firm’s trust account($266,000) failed to maintain trust account records and procedures.k. TFB v. Graham, Dec. 22, 2011 SC11-130923138930.2 27

Suspended 3 years shortage in trust funds, failed to maintain proper trust recordsand follow proper trust proceduresl. TFB v. Schieb, Nov. 22, 2011 Disbarred for misappropriating $200,000 trust fundsm. The Florida Bar v. Monaldi, Nov. 1, 2011 SC11-1146 Deposited settlement checks without client’s signature Took $12,456 that was due to medical providers Disbarredn. The Florida Bar v. Hooker, Oct. 10, 2011 SC11 – 1766 Commingled funds Misappropriate trust funds Emergency suspension until further noticeo. U.S. v. Rothstein, 2010 WL 2927489 (S. D. Fla. 2010) Rothstein settlement agreement ponci Funds placed in attorney trust account belong to client until occurrence ofcondition specified in trust Government couldn’t claim client’s funds in trustp. U.S. v. Rothstein, 2010 WL 2927490 (S. D. Fla. 2010) Same day as previous Client couldn’t impose constructive trust on proceeds of fraud even though itsfunds in trust account7. Prosecutor’s Special Responsibilities Rule 4-3.8a. Ziegler v. State, 60 So 3d 578 (Fla. 2d DCA 2011) Judge told defendant he would “rue the day that he didn’t dispose of the case” bypleaFootnote 1. Judge Northcutt:“ 1 We take other comments by the judge to be an expression of the prosecutor’sstated position in this case to seek a minimum penalty, rather than an expressionof the prosecutor’s perceived duty in every case to seek maximum penalties. Thespecial responsibilities of a prosecutor are set forth in rule 4-3.8 of The RulesRegulating The Florida Bar. The comment to this rule notes that “Florida hasadopted the American Bar Association Standards of Criminal Justice Relating toProsecution Function.” ABA Standard 3-6.1 describes the prosecutor’s role insentencing in part as follows:(a) The prosecutor should not make the severity of sentences the index ofhis or her effectiveness. To the extent that the prosecutor becomes23138930.2 28

involved in the sentencing process, he or she should seek to assure that afair and informed judgment is made on the sentence and to avoid unfairsentence disparities.”8. Meritorious Claims and Contentions 4-3.1a. South Bay Lakes Homeowners Association Inc. v. Wells Fargo Bank, N.A., 53 So 2d1239 (Fla. 2d DCA 2011) Mortgage Foreclosure – faulty legal description Assignment count Lost note count HOA – Requests for Admission Nothing in response MSJ 57.105Judge Altenbernd:“At oral argument, the bank’s attorney tried to justify this improper filing due tothe vast volume of foreclosure cases in the judicial system. While this court iswell aware of the volume of these cases, that circumstance is not a matter thatrelieves the bank and its attorneys of their obligation to file pleadings that areadequately supported by a reasonable investigation prior to suit. If anything, thevolume of these cases and the obvious detrimental effect that such volume hasupon the legal system should be a factor requiring attorneys who file the actionsto engage in higher degree of professionalism.”b. Anthony v. Perez-Abreu & Martin-Lavaielle, P.A. etc., 51 So 3d 525 (Fla 3d DCA2012) Anthony’s former wife worked in his law office She sought divorce advice from Perez-Abreu firm Complaint alleges ex-wife and defendant law firm conspired wrongfully obtainbusiness and financial records from Anthony’s firm for use in divorce Divorce settled in mediation Then but filed a civil conspiracy action.Concurring opinion stated:“The appellant is an attorney who signed his own complaint and amendedcomplaint (though later memoranda and the briefs here were signed by a juniorlawyer in the small firm wholly owned by the appellant). “The old adage that ‘alawyer who represents himself has a fool for a client’ is the product of years ofexperience by seasoned litigators.” Kay v. Ehrler, U.S. 432, 438 (1991).The cases arose out of (a) a dissolution of marriage proceeding brought by theformer wife in 2004 and (b) the appellant’s subsequent claims against the former23138930.2 29

wife’s attorneys for allegedly counseling her to copy records from the appellant’slaw office before the dissolution petition was filed. The emotional aspect ofdissolution cases (particularly, as here, involving minor children) amplifies thepossibility of professional misjudgment by an attorney/party. To compound themotional aspect of the dissolution of marriage proceeding, the former wife hadexploited her position as an employee in the small law office to clandestinelycopy the otherwise confidential documents. She thus simultaneously sunderednot only a longstanding marriage, but also a successful business relationship.On the face of the amended complaint, however, there is no discernible claim ofactual harm to a client of the law office or to the ongoing business activities of thelaw office. The alleged damages principally consist of increased legal expensesalleged to have been incurred by the appellants because of his need to litigatethese matters against the former wife and her attorneys. Any such damages wereunder the appellant’s control – no litigation, no expenses. Many of the allegedlyphotocopiedrecords - - appellant’s law office tax returns, for example - - wouldhave been subject to production as part of the parties’ financial disclosure to oneanother in any event. The trial judge in the dissolution case expressly excludedfrom the legal fees and costs awarded to the former wife “fees and costs generatedwith respect to litigating over the confidentiality of the obviously confidentialrecords taken by the Wife from the Husband’s law practice.” The true gravamenof the amended complaint is a grievance best analyzed by The Florida Bar.My colleagues show admirable restraint in declining to address these issues at thisstage. However, for the sake of the trial court’s docket, the ability of the appellantto devote his considerable experience to more productive endeavors, and“closure” for the parties and the two minor children, I will simply recommend thatthe appellant share the facts and his amended complaint with a detached,experienced trial lawyer before deciding whether to resume hostilities in the trialcourt after remand.”c. Porter v. Duval County School Board et al., 2010 WL 1252177 (M. D. Fla. 2010)footnote 1414 “The School Board’s statute of limitations argument is wholly without merit. Inthe future, counsel for the school board should be much more careful in assertingdefenses that are demonstrably unmeritorious. See Rules 4-2.1, 4-3.3(1), RulesRegulating the Florida Bar.”9. Objectives and Scope of Representation Rule 4-1.2a. Charlot v. State, __ So 3d ___ (Fla 4 th DCA 2012) 37 Fla. L. Weekly D917a (April18, 2012) Defendant decided to go to trial against advice of counsel On appeal said should have had a Faretta hearing Doesn’t apply when not seeking to represent himself23138930.2 30

“We do not construe the defendant’s opposition to a continuance of his trial as arequest to represent himself and act as his own attorney. While one court hasstated that a motion for continuance is a decision to be made by the defenseattorney, even over the objection of the client, see Laidler v. State, 10 So. 3d1136, 1138 (Fla. 1 st DCA 2009), we can only assume that defense counsel in thiscase did not feel strongly that the need for a continuance was fundamental to hisrepresentation, because he did not seek to withdraw from representation. SeeComment to Rule 4-1.2, Rules Regulating the Florida Bar (“On occasion,however, a lawyer and a client may disagree about the means to be used toaccomplish the client’s objectives. The lawyer should consult with the client andseek a mutually acceptable resolution of the disagreement. If such efforts areunavailing and the lawyer has a fundamental disagreement with the client, thelawyer may withdraw from representation….Conversely, the client may resolvethis disagreement by discharging the lawyer.”).”b. Edwards v. State, ___So. 3d___ (Fla. 3d DCA 2012). 2012 WL 1645604 May 11,2012. The decision of whether or not to plead insanity defense rests with thedefendant alone. (Rule4-1.2(a)).10. Attorneys Leaving Law Firm Rule 4-5.8a. Winters v. Mullholland, 33 So 3d 54 (Fla. 2d DCA 2010) Civil theft claim Attorneys leaving a law firm “The Facts in this case are enough to make any legal ethics professor cringe”Footnote 3“ 3 At oral argument, counsel for Mulholland opined that Winters’ conduct was sorepugnant and unprofessional that causation and damages should be presumed.Tempting as such a presumption might be under the circumstances of this case,we can find no precedent to support this proposition.”Jury foundAssoc decided to leaveRemoved one file from office and copiedKept other files with himMistress/paralegal hacked firm’s computer system and altered client contactinfoResigned without noticeRefused to return filesTold client partner retiring11. Supervision of Non Lawyers Rule 4-5.3a. The Florida Bar v. Hines, 39 So 3d 1196 (Fla. 2010)23138930.2 31

Title attorney, closing agent, escrow agent Allowed non-lawyer to have signatory authority over an escrow account sheopened to handle closings Stole proceeds of a closing Reference not for not supervising and controlling non lawyers Referee found not guilty of misconduct Supreme Court reversed remanded and suggested a rehabilitative suspensionb. The Florida Bar v. McCall, Feb. 24, 2012 SC11-1758 Failed to supervise non-lawyers who made errors, didn’t do what should andmisrepresented Public Reprimandc. The Florida Bar v. Buck, Nov. 16, 2011 SC11-696 Failed to supervise non-lawyers Failed to define roles for his employees Assigned lawyer tasks to non lawyer without suspension Suspended 30 daysd. Renninger v. Phillips & Cohen Assoc. Ltd., 2010 WL 3259417 (M.D. Fla. 2010).Prevailing party may recover its attorneys fees for time those attorneys spentsupervising paralegals since Rule 4-5.3(c) requires such supervision.12. Client’s Right to Counsel of Choice (Rule 4-5.8(b)) Lawyer’s Right to Practice (Rule4-5.6)a. Melton v. State, 56 So 3d 868 (Fla. 1 st DCA 2011) Death penalty case Registry counsel represented defendant pro bono in a collateral proceeding toattempt to eliminate aggravating factor Rule 4-5.8(b) right to counsel of choice trumps Florida Statutes §27.711(11) Allowed registry counsel to represent him pro bonob. Garfinkel P.A. v. Mager, 57 So 3d 221 (Fla. 5 th DCA 2010) Mager an employee of Garfinkel for 10 months Was managing partner Fired him – lawsuit – settled Agreement provided in part“Scott A. Mager affirmatively undertakes that he has not and will not hereafterrender any assistance, advice, counsel, support or information of any kind ordescription whatsoever to any person, group, company or association to initiate,maintain, or prosecute any lawsuit or claim against Alan B. Garfinkel,23138930.2 32

individually or Alan B. Garfinkel, P.A. In consideration for payments receivedunder this agreement, the Mager releasees affirmatively represent that, as of thedate of this agreement, they have not provided any information to any third party,whether by their own initiation or by request of the third party or its agents orassigns, or any information that could be used to disparage, denigrate or initiate alawsuit or any provided agency or regulatory matter against Garfinkel releasees.This representation is made to induce Garfinkel to enter into this agreement and ismaterial to Garfinkel releases making payment under this agreement.”Garfinkel sued for breach of the agreement. Mager moved to dismiss forviolation of public policy, i.e. client’s right to attorney of their choice. Rule 4-5.6no agreements limiting attorneys right to practiceTrial court dismissed case due to Rule 4-5.65 th DCA Reversed“While the right of a party to chose his or her attorney is deeply engrained in ourjurisprudence, that right is not unlimited. A party does not have the right to anattorney possessing confidential information of the adversary so as to provide theparty with an unfair informational or tactical advantage. See, e.g., Castellano v.Winthrop, 27 So. 3d 134 (Fla. 5 th DCA 2010). The Rules Regulating the FloridaBar affirmatively restrict attorneys with “inside” knowledge from using it for thegain of other clients. See generally, R. Regulating Fla. Bar 4-1.6 (confidentialityof client information); 4-1.7 (conflict of interest; current client) 4-1.8 (conflict ofinterest; prohibiting use of client information to disadvantage of client); 4-1.9(conflict of interest; former client).”c. Estate of Brennan v. Church of Scientology Flag Service Org. Inc., 645 F. 3d 1267(11th Cir. 2011) Counsel previously represented McPherson estate in a suit against the church Settled, in agreement, counsel was in the defined group “McPherson parties” whoagreed never again to sue the church Counsel sued the church on behalf of the Brennan estate in Federal Court Church went back to the state court in the McPherson lawsuit and got the statecourt judge to order the attorney to withdraw from the Federal Court Brennancase - contempt – sanctions Attorney tried to withdraw Federal Judge wouldn’t let him since plaintiff couldn’tfind substitute Counsel willing to sue the church Federal Judge enjoined the State Judge Appeal to the 11th Circuit Reversed, despite Rule 4-5.6 Comity, Anti-Injunction Act 28 USC § 2283, not necessary in aid of the Court’sjurisdiction where limited purpose was to make sure particular attorney remainedas counsel for plaintiffd. Broin v. Philip Morris Companies, Inc., ___ So. 3d ___ (Fla. 3d DCA 2012),23138930.2 33

WL 934034, April 17, 2012. Plaintiff’s right to counsel of choice outweighs prejudice to defendants fromconflict and confidential information.13. Advertising Rule 4-1.7a. The Florida Bar v. Doane, 43 So 3d 640 (Fla. 2010) Public reprimand for calling himself “Legal Experts” Board Certified Didn’t put area in advertisingb. The Florida Bar v. Lyons, Jan 24, 2012 SC11-835 Staff erroneously mailed unsolicited advertisement and brochure containingnames and personal information of persons unrelated to mailing Public Reprimandc. Zarrella v. Pacific Life Ins. Co., 2011 WL 4424447 (S.D. Fla. 2011). Defendant corporation’s counsel’s offering to have defendant corporation providecounsel to former executives for their depositions was not improper solicitation.(Rule 4-7.4(a)).14. Confidences Rule 4-1.6a. Minakan v. Husted, 27 So 3d 695 (Fla. 4 th DCA 2010) Wife went into husband’s e-mail account and found email to his attorney. Wife’s sister sent it to wife’s attorney Wife’s attorney sent it to husband’s attorney Wife retained a new attorney Husband’s attorney sent fax to wife’s new attorney pursuant to a formal Requestto Produce Husband moved to disqualify wife’s second attorney Court granted motion DCA – reversed = not automatic disqualification = need hearing on whether wifeobtained an unfair advantageb. Castellano v. Winthrop, 27 So 3d 134 (Fla. 5 th DCA 2010) Client illegally obtained an USB flash drive containing attorney client privilegedcommunications, client litigation notes and work product Law firm reviewed it for more than 100 hours, even though apparent in firstmoments it was privileged Disqualifiedc. Frye v. Ironstone Bank, 69 So 3d 1046 (Fla. 2d DCA 2011) Frye sought to disqualify bank’s attorney Deficiency action against guarantor23138930.2 34

Bank’s lawyer represents Frey’s former lawyer in a malpractice action by FryeMalpractice action relates to former attorney’s representation of Frye in defenseof bank’s claimsAttorney had access to confidential communications between Frye and formerattorneyAttorney disqualifiedd. ABA Formal Opinion 11-459, August 4, 2011Duty to Protect the Confidentiality of E-Mail Communications with One’s ClientA lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk ofsending or receiving electronic communications using a computer or other device,or e-mail account, where there is a significant risk that a third party may gainaccess. In the context of representing an employee, this obligation arises, at thevery least, when the lawyer knows or reasonably should know that the client islikely to send or receive substantive client-lawyer communications via e-mail orother electronic means, using a business device or system under circumstanceswhere there is a significant risk that the communications will be read by theemployer or another third party.e. ABA Formal Opinion 09-455: Disclosure of Conflicts Information When LawyersMove between FirmsThe movement of lawyers among firms raises numerous professional liabilityissues, including the need to exchange confidential client information in order toclear conflicts before an incoming lawyer can begin work at a new firm. TheABA Standing Committee on Ethics and Professional Development FormalOpinion 09-455 (October 8, 2009) confirmed that in most situations, a lawyer candisclose the basic information needed for a conflicts analysis, namely the personsand issues involved in the lawyer’s matters.Conflicting ObligationsABA Opinion 09-455 recognizes that both the new firm and the moving lawyerhave a duty to protect their respective current and former clients from conflicts ofinterest. The obligation to detect and resolve conflicts derives from both the rulesof professional responsibility (see Comment 3 to ABA Model Rule 1.7 andComment 2 to Model Rule 5.1) and common law. But there is a tension betweenthe obligation to conduct a conflicts check and the duty to protect confidentialclient information needed to complete that check. Model Rule 1.6 protects fromdisclosure “all information relating to the representation, whatever its source” (seeComment 3 to Model Rule 1.6), unless the affected client gives informed consentor disclosure is permitted by one of the limited exceptions described in the rule.The opinion dismisses as impractical reliance on informed client consent when a23138930.2 35

lawyer is moving between firms. It then concedes that none of the rule’sexceptions explicitly permits disclosure of confidential client information neededto conduct a thorough conflicts check.Limited Disclosure PermittedNevertheless, ABA Opinion 09-455 concludes that in most situations thedisclosure of the client’s identity and the issues involved should be permittedsolely for purpose of completing a conflicts check.Interpreting Model Rule 1.6 to prohibit disclosure of this information would makeit impossible for the firm and the moving lawyer to comply with Model Rules 1.7,1.9, and 1.10.The opinion, however, warns that disclosure of Model Rule 1.6 protectedinformation should be no greater than necessary to detect and resolve conflicts.For that reason, the firm and the moving lawyer should first attempt to detectsituations that may prevent a proposed move without disclosing client-specificconfidential information. For example, the firm or the moving lawyer may decideto end negotiations if the moving lawyer and the firm represent antagonistic clientgroups, such as landlords and tenants, or if the moving lawyer representscompetitors of the firm’s clients. The opinion also warns that the parties may notdisclose the persons or issues involved in a matter if doing so would compromisethe attorney-client privilege or would likely prejudice the current or former client.But if confidential information is disclosed, neither the moving lawyer nor thefirm may disclose or use it for any purpose other than the conflicts check.The opinion also discusses what the moving lawyer and new firm can do if it isnecessary to disclose information beyond the persons and issues involved in amatter in order to complete the conflicts check.For example, a more fact-intensive disclosure may be needed to determine if thereis a substantial relationship between two matters under Model Rule 1.9. Onesuggestion is to seek the informed consent of the affected client. Another is toretain an intermediary lawyer to receive and analyze conflicts information inconfidence. The use of an intermediary lawyer should be within the Model Rule1.6(b)(4) exception that permits disclosure of confidential information to securelegal advice about compliance with the rules. Even then, however, disclosuresthat might compromise the attorney-client privilege or prejudice the client shouldbe avoided. The opinion concludes that the moving lawyer and the new firmshould not disclose confidential information before it is reasonably necessary todo so, that is, not at the initial stages of the negotiation, but only after there havebeen substantive discussions about the moving lawyer joining the firm.f. Proeducational Int’l Inc v. Mindprint, Lexis 23906 (5 th Cir. 2009)23138930.2 36

The Fifth Circuit Court of Appeals reversed a bankruptcy court orderdisqualifying a lawyer from representing a client adverse to a client of his formerfirm, holding that the lateral lawyer was entitled to rebut the presumption that hepossessed all of his former firm’s clients’ confidential information. Beforemoving to his current firm, the lawyer had been an associate at a firm thatrepresented MindPrint, although he had not been involved with thatrepresentation. In fact, he had not even been aware of it. Approximately twoyears after the associate left the firm, he filed an appearance in the bankruptcy forclient adverse to MindPrint. The bankruptcy court granted MindPrint’s motion todisqualify the lawyer, holding that there was an irrebuttable presumption thatconfidential information of MindPrint was shared with the lawyer and allmembers of his former firm. The district court affirmed the ruling but theappellate court reversed, rejecting the irrebuttable presumption. Because theuncontroverted evidence established the associate had no actual knowledge of hisfirm’s representation of MindPrint, there was no conflict that would prevent theassociate from representing a client adverse to MindPrint.g. The Florida Bar v. Harlan, Nov. 16, 2011 SC11-1002 Condo owner sued for foreclosure or unit Buyer hires attorney to represent her in buying unit Buyer receives quit claim deed from HOA Buyer submitted offer to bank Attorney offered to slow down foreclosure – but need authorization to representcondo owner Buyer had condo owner’s brother-in-law send email. If authorized attorney tospeak to bank to abate debt (no deficiency) Attorney represented condo owner in foreclosure and told buyer all about case Confidences and conflict Suspended 90 daysh. Davis v. Secretary, Dept. of Corrections, 2011 WL 307748 (M.D. Fla. 2011). Criminal defense attorney required to tell authorities about the whereabouts of thevictim of the crime. (Rule 4-1.6(c)).i. D’Aprile v. Unum Life Ins. Co., 2010 WL 3788271 (M.D. Fla. 2010). Attorneys disability policy claim Insurance company requested clients billing and fees records Plaintiff objected on confidentiality Court sustained objection Rule 4-1.615. Impartiality and Decorum of the Tribunal Rule 4-3.5a. The Florida Bar v. Abramson, 3 So 3d 964 (Fla. 2009)During jury selection in a criminal case the following occurred:23138930.2 37

“Abramson believed the case could be disposed of quickly by a motion for discharge or achange of plea, and he wanted Judge Wennet to entertain his motions before theproceedings began. However, the prospective jurors were already seated for juryselection to begin, and Judge Wennet immediately began jury selection. He did not wantto interrupt the process by having a sidebar or a conversation with the attorneys outsidethe presence of the prospective jurors. Judge Wennet was not at fault for exercising hisdiscretion to address Abramson’s motions after selecting the jury and for not wanting tointerrupt the process.Almost immediately after Judge Wennet introduced himself and began speaking to theprospective jurors, Abramson interrupted him and asked to approach the bench. JudgeWennet asked Abramson to be seated, but Abramson continued to ask to approach.Judge Wennet refused to allow Abramson to approach and informed Abramson that hewould hear his motions after the voir dire was completed. Abramson continued tointerrupt the proceedings. He was discourteous and disrespectful to Judge Wennet in thepresence of the prospective jurors. His conduct interrupted the proceedings by focusingtheir attention on him instead of the court. The assistant state attorney in the case, DanFunk, testified that Abramson was visibly upset and insistent and disregarded JudgeWennet’s instructions. Funk described Abramson’s conduct as beyond belief and unlikeanything he had seen before.Abramson’s misconduct continued when it was his turn to question the prospectivejurors. He was disrespectful of Judge Wennet, disparaging the trial judge’s qualificationsto the prospective jurors. Abramson indicated to the prospective jurors or in theirpresence that Judge Wennet had been completely disrespectful and unprofessional andhad violated the rules and procedures. Abramson asked the prospective jurors whetherthey felt that Judge Wennet’s conduct was appropriate. The prospective jurors said thatthey thought Abramson had been disrespectful to Judge Wennet.Abramson made the following statements during his voir dire of the prospective jurors:“Okay, so for all you know, the judge was the one that was completelydisrespectful, lacking in respect, lacking in professionalism, and it was not me;you don’t know that because you were not here earlier, correct?…Okay. So, if, in fact, I’m doing what I think is legally right and the Judge ispreventing me from doing my job, it is actually the judge that is unprofessional,not me, right?…This Judge said no. He violated the procedures; he violated the rule; he wasdisrespectful and he was unprofessional, not me. And that’s the answer to yourquestion, Mr. Lewis.”23138930.2 38

Outside the presence of the prospective jurors, Abramson told Judge Wennet thatJudge Wennet had been disrespectful, not Abramson.“No matter what I did wrong, Judge, no matter what I did, it isone hundred percent disrespectful of the Court-now the jurythinks it’s me, but, actually, Judge, it was a hundred percentyou, and it’s completely your fault that this case denigrateditself to the point that it got.”Ultimately, the client discharged Abramson as her attorney, the trial did not goforward that day, and the prospective jurors were dismissed. Judge Wennetinitiated contempt proceedings against Abramson but decided to refer the matterto The Florida Bar instead.”91 day suspensionb. Alan v. State, 39 So 3d 343 (Fla 1 st DCA 2010) Juror asked to be excused. Court excused her over Alan's objection. He thoughtshe had been tampered with. Counsel asked to interview her Denied He contacted her by telephone Told juror judge said he could Asked for her medical records Criminal contempt affirmed Cited 4-3.5(d)(4) The Florida Bar v. Alan, Jan. 24, 2012 SC11-484 – Suspended 30 daysc. Crain v. State, 78 So 3d 1025 (Fla. 2011) Rule 4-3.5 (d)(4) prohibition on attorneysinterviewing jurors. Doesn’t deny capital murder defendant the right to effective assistance of counsel Nor does it violate 1 st , 6 th , 8 th and 14 th amendmentsd. Lukehart v. State, 70 So 3d 503 (Fla. 2011) Same as to Craine. Troy v. State, 57 So 3d 828 (Fla. 2011) Same as to Crainf. The Florida Bar v. Ratiner, 46 So 3d 35 (Fla. 2010) The Court gave the following description of Ratiner’s conduct during adeposition:“During the course of the deposition, [opposing counsel] attempted to place anexhibit sticker on the Respondent’s laptop computer.23138930.2 39

Just prior to [opposing counsel’s] attempting to place the exhibit sticker on thecomputer, the Respondent was standing up and speaking forcefully towards[opposing counsel].As soon as [opposing counsel] attempted to place the exhibit sticker on thecomputer, the Respondent briefly touched [opposing counsel’s] hand, thenattempted to run around the table towards [him].Additionally, the [deponent] expressed that she was very scared as a result of theRespondent’s conduct.The Respondent’s own consultant had to attempt to calm the Respondent downand specifically told the Respondent to “take a Xanax.”Further, while the Respondent was acting as described above, the court reporterstated, “I can’t work like this!”Respondent then proceeded to forcefully lean over the deposition table, lambast[opposing counsel] in a tirade while proceeding to tear up the evidence sticker,wad it up and flick or toss it in the direction of [opposing counsel].”Suspendedg. Cadlerock Joint Venture, L.P., v. Sol Greenburg & Sons International Inc., et al., (NYApp Div, April 19, 2012 NY Sip Op. 02944. Attorney sanctioned for depositionbehavior and referred to Bar."At the deposition in this matter, defendants' counsel, Mr. Joseph R. Sahid,repeatedly interrupted the questioning and made improper objections and lengthyspeeches that had no merit. He also improperly interrupted the witness' s answersand conferred with the witness (his client) mid-answer. He insulted plaintiff'scounsel, Justice Solomon and her clerk, and even the court reporter, who waseventually compelled to leave the deposition due to the abuse of defendants'counsel."Attorney Sahid's response:“New York lawyer Joseph Sahid says it's hard to believe that a New York appealscourt has imposed a $10,000 sanction on him for his behavior at a deposition in2010.This is absolutely shocking, Sahid tells Reuters. I've been a lawyer for 40 years. Ihave never been sanctioned for anything.23138930.2 40

The court said the sanction should be paid to the Lawyers' Fund for ClientProtection, and also said Sahid should pay attorney fees for the costs of pursuingthe sanctions motion.Sahid told Reuters that the request for sanctions is part of a campaign of"harassment" by a collction company seeking money from his clients. The NewYork Law Jourbal (sub. req.) also covered the ruling.”ABA Journal. Com, April 27, 2012.h. Florida Board of Bar Examiners RE: William Castro, ___So. 3d ___ (Fla. 2012) 37Fla. L Weekly S92a (Februay 9, 2012). Admitted to Bar 1981 Disbarred 1998 Prohibited from seeking readmission for 10 years 2007 reapplied Denied for life His offense, bribing and giving kick back to judges 13,3000 hours community service Volunteer for church Community service activities Taught classes Foster parent Guardian ad litem“Here, the Board determined that no amount of rehabilitation would ever be sufficient towarrant readmitting Castro to the Bar. We agree. As a member of the Bar in this state,Castro had an obligation to respect and uphold the judicial system and the legalprofession. He violated this obligation when he participated in a scheme involvingbribery and kickbacks to a sitting judge. This type of misconduct, involving corruptionwithin the legal system, is particularly egregious. It is clear that since his criminalconviction and disbarment, Castro has engaged in thousands of hours of communityservice, benefiting both his church and the legal community as a whole, in an effort toshow his rehabilitation. While his commitment to community service is admirable, weagree with the Board’s conclusion that no demonstration of rehabilitation would eversuffice to allow Castro’s readmission to the legal profession.”i. The Florida Bar v. Conway SC08-326 (October 29, 2008). Criminal defense attorney Blogged in JJA Blog (see Blog at Exhibit 4) called Judge “evil unfair witch”j. In the Matter of: Therese Cesar Garza, Illinois Attorney Registration and disciplinaryCommission Comm. No. 2012 PR00035, April 25, 2012.23138930.2 41

She allowed her criminal defendant client to leave the courthouse to pick up herchild and the judge called the case for trial, when told, the judge issued an arrest warrantfor her client. Ms. Garza replied: “oh s__t!” The court asked her what she said and shereplied “Oh shoot, I said oh shoot…” The judge didn’t buy it and a disciplinaryproceeding was filed. 11 It is unknown whether if the slip of the lip had been Garza’s onlytransgression a disciplinary proceeding would have ensued. Ms. Garzahad several other issues in May 2011. (See Ex5 for those details.)k. United States v. Venable, 666 F.3d 839 (4 th Cir. 2012).“Finally, we feel compelled to note that advocates, including government lawyers,do themselves a disservice when their briefs contain disrespectful or uncivil languagedirected against the district court, the reviewing court, opposing counsel, parties, orwitnesses. See, e.g., Dranow v. United States, 307 F.2d 545, 549 (8th Cir.1962) (“In lightof the too numerous decisions of this and other Courts of Appeals, it should not benecessary for us to repeat, [a] brief should not contain language disrespectful to the courtnor to opposing counsel and ordinarily a brief containing such scurrilous and scandalousmatter should be stricken from the files.” (internal quotations omitted)); 36 C.J.S. FederalCourts § 557 (2011) (“Abusive, scandalous, scurrilous, ... or disrespectful language ...should not be inserted in the brief.”); 4 C.J.S. Appeal and Error § 734 (2011) (“Theappellate brief should not contain disrespectful, scandalous, or abusive language directedagainst the court of review, trial judge, opposing counsel, or parties or witnesses. A briefin no case can be used as a vehicle for the conveyance of ... insult, disrespect orprofessional discourtesy of any nature ... invectives are not argument, and have no placein legal discussion.”). Unfortunately, the government's brief is replete with suchlanguage: it disdains the district court's “abrupt handling” of Appellant's first case,Appellee's Br. 19; sarcastically refers to Appellant's previous counsel's “new-foundappreciation for defendant's mental abilities,” Appellee's Br. 21; criticizes the districtcourt's “oblique language” on an issue unrelated to this appeal, Appellee's Br. 22; statesthat the district court opinion in Jones “revealed a crabby and complaining reaction toProject Exile,” Appellee's Br. 57; insinuates that the district court's concerns “require [ ] abelief in the absurd that is similar in kind to embracing paranormal conspiracy theories,”Appellee's Br. 59; and accuses Appellant of being a “charlatan” and “exploit[ing] hisidentity as an African–American,” Appellee's Br. 61. The government is reminded thatsuch disrespectful and uncivil language will not be tolerated by this court. See Ruston v.Dallas County Tex., 320 Fed.Appx. 262, 263 (5th Cir.2009) (striking pleadings because23138930.2 42

they “contain abusive and disrespectful language”); Carter v. Daniels, 91 Fed. Appx. 83,84 (10th Cir.2004) (finding party's “language in his brief intemperate and disrespectful ofthis court and the district court,” and cautioning party that it may be subject to sanctionsif it continues to file such pleadings); Hamad v. Deshazo, 1996 WL 556788, at *1 (5thCir.1996)(unpublished) (warning party that “the use of abusive and uncivil language, asdisplayed in his appellate brief, will not be tolerated by this court” and directing him to“review all pending appeals to make sure that they do not contain such language”).”l. Doscher v. Doscher, Docket No. 2012-1438 Supreme Court of New York, App. Div.Second Dept. Counsel wrote a response to an attorneys fee petition in the form of apoem based upon “Twas the Night before Christmas.” Contempt motion denied butgrievance proceeding pending.m. Bettis v. Toys “R” Us, 2009 WL 5206192 (S. D. Fla. 2009) Attorney found to have violated Rule 11 and was referred to the Florida Bar Publicly impugned the dignity of the presiding Judge with scurrilous and baselessaccusations, for the purpose to force a recusal Attorney raised Judge’s faith and political affiliations as supposed evidence ofbias Interview to tabloid Called into question credentials of former law clerks Recusal denied, two appeals – lost Second motion to recuse on basis of alleged scheme concerning court assignments646 F. Supp. 2d 1273 (S. D. Fla. 2009) 92 page Report and Recommendation by Magistrate Judge Fined, suspended from S. D. for 42 months, fees imposed againstn. Phillips v. Centennial Bank, ___ So. 3d ___ (Fla. 3d DCA 2011). 2011 WL 4949994(Oct. 19, 2011). Dissenting opinion Bank should not have been able to obtain an amended final judgment due to “exparte” contact with trial court and Bank’s counsel’s “unethical andunprofessional” actions.o. In Re New River Dry Dock, Inc, 2011 WL 4382023 (B.R.S.D. Fla. Sept. 20, 2011) Attorney impugned judge in response to order and show cause Sent bottle of wine to chambers to make up Suspended16. Competence Rule 4-1.1a. The Florida Bar v. Shankman, 41 So 3d 2010 (Fla. 2010)23138930.2 43

17 yr old filmed in a wet T-shirt contest Hired Shankman Told her he needed to associate experienced trial counsel 1st contract 40%, he got 9.6% Told her to fire associated firm. Associated another.1st associated firm increase %2nd associated firm increase %3rd associated firm increase %4th associated firm increase %5th associated firm increase % She got tired of it and fired him 90 day suspensionb. Ritchie v. Cavalry Portfolio Services LLC, 2010 WL 5662931 (M. D. Fla. 2010) Fair Debt Collection Practices Act case – Never authenticated the client’s phonerecords concerning number of harassing calls Motion for sanctions denied, but stated Rule 4-1.1 governs and attorneys must becompetent in the rules and law of evidence if they are to practice in Federal Court “After the February 17, 2010 deposition of the Comcast custodian, Ritchie’slawyer should have realized he had authentication issues to surmount. Acompetent lawyer would have understood this and acted accordingly.”17. Truthfulness in Statements to Others Rule 4-4.1a. The Florida Bar v. Watson, 76 So. 3d 915 (Fla. 2011) Sent letters to “investors” in client’s projects telling them money invested, andprovided those to commodity traders and investors when he knew not true(investors for whom he wrote letters had not invested. Referee 91 days suspension Supervised probation 3 yearsb. The Florida Bar v. Scott, 39 So. 3d 309 (Fla. 2010) Told person entering into a deal that his client was an “honest man” when heknew there was a prior order precluding his client from doing this very type ofdeal. Also represented that person, and others, to try to get limited frozen accountstaken by 1 st client Suspended 3 yearsc. The Florida Bar v. Letwin, 70 So. 3d 578 (Fla. 2011) Sent 900 letters to prospective clients, all current and former part time adulteducation teachers23138930.2 44

Each letter improperly solicited these part time teachers to join a purported classaction suit against the Broward County School Board.The letter contained inaccuracies and statements of fact that inducedapproximately 50 clients to retain respondent’s legal services.The case referenced by respondent in the letter had not been certified as a classaction by the trial court.The letter did not identify it as an advertisement, as required by The RulesRegulating The Florida Bar.The contract that respondent enclosed with the letter was not marked as a sample,as required by The Rules Regulating the Florida Bar.The letter also stated that “I need to have your express acceptance of my legalrepresentation or the COURT will not recognize your claim.” Such statement wasimprover and not an accurate statement of law or fact.Respondent failed to explain that the recipients of the letter were free to chooseand hire any attorney to represent them in a lawsuitOne year rehabilitative suspension and three years probation.d. The Florida Bar v. Hall, 49 So. 3d 1254 (Fla. 2010) Created fraudulent lease and agreement for sale Forged other party’s signature Recorded it in public records Harassed owner who had to hire attorney Still called owner Threatened to sue owner Drove away other interested purchasers Threatened to report real estate broker to FREC Refused attorneys request for quit claim to clear title Disbarred18. Communications with Person Represented by Counsel Rule 4-4.2a. Pepperwood of Naples Condo Assn. Inc. Nationwide Mutual Fire Ins. Co., 2011 WL4382104(M.D. Fla. 2011) Can speak with former employees of adversary who worked on project withoutdetaining permission of former employers attorney unless admission/privilegedissues“In this case the Court finds that Plaintiff’s counsel may contact the former SeniorCommercial Claims Representative(s) or Manager(s) who were involved with orworked on Pepperwood’s claims, but must do so through Defense counsel. Anyother lower-level former employees may be contacted ex parte by Plaintiff’scounsel, but Plaintiff’s counsel must follow all applicable ethical guidelines whendoing so. In the event though that Defendant is representing any former employeeas counsel, ex parte contact may not be made. With regard to contacting current23138930.2 45

employees, the Court finds that any contact with current employees must be madethrough Defense counsel.”b. Lee Memorial Hospital v. Smith, 56 So 3d 808 (Fla. 2d DCA 2011)Rule 4-4.2 didn’t preclude patient’s parents from communicating with child’s treatingphysicians. Malpractice casePhysicians are employees of defendant hospitalNot talking to physicians involved in the incident alleged to be malpractice, or thedefense of the casec. U.S. v. Moss, 2011 WL 2669159 (S.D. Fla. 2011) FBI interviews of jail inmates without their respective attorneys permissiondoesn’t violate Rule 4-4.2d. Bedoya v. Aventura Limosine & Transportation Services, Inc., 2012 WL 1828066(S.D. Fla. 2012) Plaintiff’s law firm disqualified for contacted represented parties in violation ofRule 4-4.2 Told defendant’s officer that plaintiff would never settle with defendant as long asthey were represented by their present attorney Met with an independent contractor and had him sign an affidavit, which couldbind the defendant19. Communicating with Client Rule 4-1.4a. The Florida Bar v. Klein, Feb. 20, 2012 SC10-2341 Failed to communicate with client Failure to perform meaningful service 90 day suspensionb. The Florida Bar v. Lopez, Feb. 20, 2012 SC12-235 Failed to keep client informed Public reprimandc. The Florida Bar v. Rodgers, Feb. 20, 2012 SC11-1759 Failed to communicate with client Suspended 90 daysd. The Florida Bar v. Mattson, Jan. 19, 2012 SC11 – 2425 Failed to communicate with client Public reprimand and ethics schoole. The Florida Bar v. Holton, Dec. 22, 2011 SC11 – 1864 Failed to communicate with client23138930.2 46

Public reprimandf. The Florida Bar v. Leemis, Dec. 15, 2011 SC 11-442 Failed to communicate Suspended 10 daysg. The Florida Bar v. Medof, Dec. 20, 2012 SC11-599; SC11-1388 Failed to communicate with clients Suspended 60 daysh. Paschette v. Wells fargo bank, N.A. 2011 WL 2470314 (M.D. Fla. 2011) Plaintiff’s counsel wrote a letter to Defendant Bank allegedly knowing Bankrepresented by counsel. Bank wanted lawsuit dismissed as a sanction forviolation of rule 4-4.2(a) Court refused, the harm didn’t warrant dismissali. Iglesias v. J.C. Penney Corp. Inc., 2010 WL 4854973 (M. D. Fla. 2010) Slip and fall Jurat for Plaintiff’s interrogatory answers missing Defendant’s counsel wrote Plaintiff’s counsel asking for it Refused citing ethical reasons Then wrote Plaintiff twice asking for it Plaintiff didn’t provideFootnote 11 Court noted Defendant’s counsel violated Rule 4-4.2 by asking plaintiffwithout her attorney’s consent.20. Deligence Rule 4-1.3 and Expediting Litigation Rule 4-3.2a. U.S. v. Acuna-Acosta, 2010 WL 662298 (S. D. Fla. 2010); 2010 WL 662212 (S.D.Fla. 1010) Sanctioned for failing to timely perfect an appeal to the 11th Circuit Court ofAppealb. Barnard v. Geico Gen’l Ins. Co.. 2011 WL 2039560 (N.D. Fla. 2011) “For an attorney to refuse to respond to attempts to contact him for months at atime is outrageous and unprofessional.” (Rule 4-3.2) Plaintiff trying to set up “bad faith” claim on a minimum limits case21. Lawyer as a Witness Rule 4-3.7aVoter Verified Inc. v. Premier Election Solutions, Inc., 2010 WL 2243708 (M. D. Fla.2010) Trial attorney was also co-inventor of the subject patents and the attorney whoprosecuted the patents23138930.2 47

Defendant claims Rule 4-3.7 precludes him from acting as advocate and witnessCourt denied motion without prejudice. Since Defendant not establishAttorney would be necessary fact witness. However, if did, he would bedisqualified and no continuanceb. Suchite v. Kleppin, et al., 784 F. Supp. 2d 1343 (S.D. Fla. 2011) Lawyer as defendant and possible witness Couldn’t be both at trial22. Declining or Terminating Representation Rule 4-1/16(d)a. JP Morgan Chase Bank N. A. et al. v. Ben-Ezra & Katz P.A., 2011 WL 1458066 (S.D. Fla. 2011) Law firm hired by Bank to file foreclosures Filed thousands Bank fired them Moved to withdraw Bank filed Federal emergency motion to enjoin withdrawal in state court cases Bank cited Rule 4-1.16(d), attorneys were prejudicing them Attorneys relied on Rule 4-1.16(a)(3) Must withdraw if discharged Denied injunction Not show substantial likelihood of winning Anti-Injunction Act 28 USC § 2283b. In Re Jeffrey Dickstein, 2010 WL 4282171 (N. D. Fla. 2010) Moved to withdraw from criminal case Non-payment of fees Court order told him not to Criminal contempt when he did Claimed California Rules of Professional Conduct controlled Held in criminal contempt23. Mediator Discipline (Mediator Qualifications Board)a. Bruce Morosco: March 23, 2012 Decertified three years for intimidating his wife after divorce, violation ofdomestic violence injunction. Lacked good moral character.b. Mitchell A. Blum: Feb. 26, 2010 Decertified. Didn’t allow parties to effectively participate in the mediation process. Didn’t perform mediation services in a timely fashion.23138930.2 48

Didn’t return fee.Failed to maintain records.c. Craig Steinberg: Sept. 12, 2011 Decertified: misrepresentations in application and resume, website, andmarketing information. Said he was a judge.D) Jason Banks: Nov. 10, 2011 Decertified: failed to maintain impartiality and avoid conflict of interest, givingadviceIII.RECENT EVENTS1. On April 12, 2012 The Supreme Court approved amendments to Rules Regulating theFlorida Bar, ____So 3d ____, 37 WL 1207226 Fla. L Weekly S275 (Fla. 2012)A) Nothing of major significanceB) Declined several amendments proffered by The Florida BarC) Rule 1-3.3 changedD) You have to notify the Bar of your email address and principal place ofemployment (if not your current Bar address)2. The Oath of Admission to the Florida Bar changed:Adds: “To opposing parties and their counsel I pledge fairness, integrity and civility, notonly in court, but also in all written and oral communications.” 73 So 3d 149 (Fla. 2011)3. In 2011 there were several minor changes to the rules, nothing significant67 So. 3d 1037 (Fla. 2011)4. The Supreme Court approved the Florida Bar’s request to amend its advertising rules.The Board approved these in January. (See #5. Harrel below)Proposal is that you can’tuse an authority figure such as judge or police officer, or an actor portraying a judge orpolice officer to endorse or act as a spokesperson for an attorney. SC11-137; Rule 4-7.3;4-7.55. In September 30, 2011, in Harrell v. The Florida Bar, District Judge Howard ruled thatRules 4-7.2(c)(3) and 4-7.5(b)(1)(A) requirements that ads not be “manipulative” andshould be “useful” or “factual” were unconstitutionally vague.“Don’t settle for less than you deserve,” with background music. Board of Governorsstated proposed amendments will address and satisfy the court’s concerns.6. Solo Practitioners can’t refer to themselves in the plural, just like they can’t use “andassociates” after name in firm23138930.2 49

7. Adv. Opinion A-09-a (6/25/2009) Retired judge can’t use “Judge” in letterhead8. Prof. Ethics Opinion 11-1; Sept 21, 2011State attorneys representing Florida Department of Revenue (DOR) in Social SecurityTitle IV-D child support cases. It revokes former Opinion 92-2 and provides parent is nota client of the attorney, there is no ethical limitations on lawyers representing DOR in itsproviding services to a parent, regardless of a prior representation in which services wereprovide to the other parent.9. Board of Governors ruled in August 2011 that there is no conflict of interest in USAttorney testifying at a Professional Ethics Committee meeting considering ethics in pleabargaining10. Professional Ethics Committee during its January 7, 2011 meeting endorsed a staffopinion that lawyers representing banks in foreclosures must tell the court if they know ofpaperwork problems in their clients’ foreclosure cases. Cited following rules for basis:4-3.3 Candor to Tribunal4-3.4(b) Fabricating evidence4-8.4(a) Misconduct4-8.4(c) Dishonesty4-8.4(d) Prejudicial to administration of justiceSee Florida Bar Staff Opinion 29977, January 7, 201111. Bar issued Ethics alert April 2011. Warning attorneys about providing legal servicesthrough non-lawyers for loan modifications, short sales, other foreclosure related rescueservices. [Also FTC rule effective 1/31/2001] § 501.1377 Fla. Stat.4-7.29c)(14) can’t pay a referral fee4-5.4(a) Professional Independence4-5.5(a) ULP4-8.4(d) Prejudicial to justice4-7.4(a) Direct contact with prospective client4-8.4(a) Violate Rules4-7.10 Advertising4-1.1 Competence4-1.2 Objectives and Scope of Representation4-1.4 Communications14. The Florida Bar v. O’Toole, SC 11-1384, July 14, 2011. Emergency suspension for hisinvolvement with non-lawyers in a loan modification business. Had 2500-3000 files andtold Bar investigators he didn’t know status of cases23138930.2 50

15. Professional Ethics Committee, Opinion 09-1, December 10, 2010. Attorney may notcommunicate with State agency officers who could bind agency about subject matter ifgovernment lawyer involved16. Professional Ethics Committee, Opinion 10-3, February 1, 2011. A lawyer may discloseconfidential information of a dead client unless client told attorney not to disclose beforedied. If compelled, must raise privilege.17. Professional Ethics Committee affirmed a staff opinion that attorney is required topresent client with an offer made at mediation which is conditioned upon attorney’s feesbeing resolved favorably to opposing party.18. The ABA Commission on Ethics 20/20, on April 16, 2012, announced it was abandoningits efforts to propose amendments to Rule 5.4 which would have allowed non-lawyers tohave some form of limited ownership interest in United States law firms.19. Brown v. The Florida Bar, 406 Fed. Appx. 434 (11 th Cir. 2010), cert. denied. 131 S. Ct.2936 (2011). Florida’s requirement that attorneys belong to the Florida Bar is notunconstitutional.20. Zisser v. The Florida Bar, 630 F. 3d 1336 (11th Cir. 2011). No constitutionally protectedproperty interest in obtaining Board certification or re-certification.21. Peterson v. The Florida Bar, 720 F. Supp. 2d 1351 (M. D. Fla. 2010). No constitutionalright to see certification peer review informationIV.ON THE HORIZON1. Proposed rule to speed up disbarments of felons; Rule 3-7.2.2. Trust Account rule changes; An emphasis to place accountability on lawyers whoactually control the funds. Responsibilities of attorney who don’t will be delineated.3. Allowing staff to use attorneys name and passcode to electronically file court documents(e-filing).4. Considering the withdrawal of Professional Ethics Advisory Opinion 79-7 (Feb 15, 2000)which precludes ghost writing for pro se litigants without disclosure.5. Professional Ethics Committee voted to issue an advisory opinion on ethical obligationsof prosecutors and criminal defense attorney in negotiating pleas, which require thedefendant to waive collateral attack on the conviction based up on ineffective counsel orprosecutorial misconduct (September 21, 2011).23138930.2 51

6. The Board of Governors considering whether only Florida Registered Paralegals can becalled “Paralegals.”7. Lawyer Referral ServicesA) Professional Ethics Committee considering:LawButler.com (Matches clients with attorney after screening)Voted February 3, 2012 to issue opinion expressing reservationsUPLConfidentialityFee splitting with non-lawyerB) The Florida Bar has a Special Committee on Lawyer Referral ServicesC) LexisNexus Referral Plan sent to Special Committee for reviewD) Several proposals being considered to restrict lawyer memberships in LRSRecommendations being considered:A lawyer referral service shall not have [any relationship with] [any financialcontractual, or ownership interest in] a medical referral service or any person,group of persons, association, organization, or entity that specifically advertises inthis state to accident victims or other prospective clients primarily for the purposeof a healthcare provider filing a claim of payment of treatment of an accident orinjury victim and that uses a common phone number, universal resource locator(URL), or other form of shared contact.A lawyer shall not accept client referrals from any person, entity, or service thatalso refers or attempts to refer clients to any type of medical provider.A lawyer shall not accept client referrals from any person, entity, or service thatrefers or attempts to refer clients to any other type of professional service.A lawyer shall not participate in or accept referrals from a referral service unlessthe participants in such referral service are members of The Florida Bar orotherwise subject to the Rules Regulating The Florida Bar.Tentatively approved:Any case referred by a service must be to a specific attorney at a firm, who in turnwill be responsible for ensuring that the referral service is complying with Barrules. The Bar cannot directly regulate private referral services, but it can prohibitattorneys from joining services that do not comply with Bar rules, including ruleson advertising.23138930.2 52

Require attorneys, when they join a referral service, to register with the Bar andprovide disclosure of the relationship with the referral service. Currently, referralservices are required to send a list of participating attorneys to the Bar, but somedo not comply.Mandate that attorneys may not accept a referral from a referral service unless theinitial contact is made by the potential client. Committee members said this wouldaddress situations, which came out at the committee's public hearings, wherepeople called a medical referral service seeking treatment after an accident, thenwere met at a clinic by a lawyer or paralegal who told them they had to sign upwith a lawyer before they could be treated.Recommend that the Bar, perhaps as part of a larger public education project,inform the public about solicitation and referral issues, including such things aslawyers or their representatives are not allowed to directly contact potentialclients.E) Now 71 private referral services registered with The Florida BarF) Bar’s Advertising Committee looking into internet based referral services such asTheLaw.tvG) House Bill 485. Bill filed by Representative Kriseman on October 26, 2011 toregulate LRS. Died in Civil Justice Subcommittee on March 9, 2012.8. Lawyer mobility. ABA Commission on Ethics 20/20 proposal concerning an amendmentto Model Rule 1.6 that would allow law firms and lawyers to disclose some limitedconfidential information about past and present clients to other law firms and lawyers todetermine if there is a conflict. Also, Rule 1.7 resale of practice. Consistent with ABAFormal opinion 09-455, which allowed but suggested Rule 1.6 be amended.9. ABA Commission on Ethics 20/20:Proposal rule change to allow admission to practice in another jurisdiction if practicingfor three of past seven years (now says five of past seven).Florida voted against.10. ABA Commission on Ethics 20/20 proposed (February 21, 2012) that Model Rule5.5(d)(3) be adopted to allow an attorney to practice within another jurisdiction pendingadmission, through an office or other systematic and continuous presence for no morethan 365 days: Must notify Bar, apply within 60 days and associate with attorneylicensed in jurisdiction.Florida voted against.23138930.2 53

11. ABA Commission on Ethics 20/20 proposed amendment to Model Rule 1.18 and ModelRule 7.1 concerning electronic contact with prospective clients. (Advertising oninternet).Florida voted against.12. Courts are facing requests from “non-clients” to disqualify opponents’ attorneys due to ajoint defense or common interest agreement in another case.13. Bars and courts throughout the country are relaxing their strict interpretation of the“directly adverse” conflict rule for unrelated cases.A) Case Study.V. TECHNOLOGY AND ITS ETHICAL IMPLICATIONSThe Facts:Attorney is an associate at a law firm that provides a laptop computer for his useon client and firm matters and which includes software necessary to his practice.At the firm informed Attorney when it hired him, the computer is subject to thelaw firm’s access as a matter of course for routine maintenance and also formonitoring to ensure that the computer and software are not used in violation ofthe law firm’s computer and Internet-use policy. Unauthorized access byemployees or unauthorized use of the data obtained during the course of suchmaintenance or monitoring is expressly prohibited. Attorney’s supervisor is alsopermitted access to Attorney’s computer to review the substance of his work andrelated communications.Client has asked for Attorney’s advice on a matter. Attorney takes his laptopcomputer to the local coffee shop and accesses a public wireless Internetconnection to conduct legal research on the matter and email Client. He alsotakes the laptop computer home to conduct the research and email Client from hispersonal wireless system.What are the ethical issues:1) Confidentiality. Must use all reasonably necessary means to protect.2) Competence. Do you know how to do that? Do you have the ability to access level of security required to protect. Are there reasonable precautions that you can take that work?23138930.2 54

Who is monitoring your use of the technology?Interceptions by third parties.How sensitive is the information you are exposing?Possible impact on client.Urgency of situation.The State of California Standing Committee on Professional Responsibility and ConductFORMAL OPINION 2010-179a. Proper to use laptop if limit who has access and its secure.b. Coffee shop wireless is proper only if you encrypt your wireless transmissionsand files.c. Home and wireless network is proper only if security features preventinterception.d. Need to notify clients and obtain consent to use wireless.B) AREAS OF ETHICAL CONCERN WITH TECHNOLOGY1) ABA Commission on Ethics 20/20 Revised Draft Report for comment Technology and Confidentiality February 21, 2012A) Suggests changes to model rules 1.10; 1.11; 1.12; 1.18; 1.1 Competence 1.4 Communication 1.6 Confidentiality 4.4(b) Inadvertently received informationB) First need to know, last year Florida Bar Board of Governors, July 29, 2011,voted on earlier versions of these.C) Florida:(i) Board of Governors voted not to endorse proposed amendments ontechnology and confidentiality except changing the word “document” to“information”.(ii) voted in favor of rule on “outsourcing”, although said it may be contrary toFlorida Professional Ethics Opinion 07-2;D) What was suggested, what may be changed23138930.2 55

(i)ABA adds a whole section on “Technology” definitions;Florida voted against it(ii)ABA suggests competence having to know computer and ESI operationsto be competent “including all risks associated with technology”Florida voted against.(iii)Communication: deleted client telephone calls and substituted“communications”Florida voted against.(iv)Confidentiality: lawyer shall make reasonable efforts to prevent“inadvertent or unauthorized disclosure of, or unauthorized access to,information relating to the representation of the client.”Florida: voted against(v)Respect for Rights of Third Parties: If lawyer inadvertently receiveselectronically stored information must promptly notify sender.Florida: voted in support of it.(vi) Outsourcing (Foreign and Domestic): ABA Commission on Ethics 20/20February 21, 2012• Outsourcing legal and law-related work domestically and offshore• Proposed comment to Rule 1.1. regarding outsourcing.a. obtain consent client;b. must believe will contribute to the competent and ethical representation ofclient;c. impacts communication of client (1.4), fee sharing, 1.5(e), confidentiality(1.6) and unauthorized practice of law (5.5)d. education, experience and reputation of non firm lawyerse. nature of workf. legal and ethical protectionsg. competenceh. consult with non firm re scope and responsibilitiesi. allocation and monitoringFlorida: Voted against this due to existing Ethics Opinion Fla. Prof. Ethics Opinion 07-2 (January 18, 2008)23138930.2 56

Outsourcing paralegal services overseas is acceptable with protectionsfor: ULP Supervision Conflicts Confidentiality Reasonable Fees2) The Cloud“Saas” = "Software As A Service" store documents online or on a remote serverFlorida: No opinion right on point but see Ethics opinion 06-01 (Oct. 10, 2006)says acceptable to store files electronically but must take steps to protectconfidentiality.Best opinion on how to handle is Pennsylvania Committee on Legal Ethics andProf Responsibility Formal Opinion 2011-200 (Nov. 23, 2011)What to include in contractWhat precautions to takeAlso:Oregon Bar Formal Op 2011-188 (Nov. 2011)North Carolina 2011 Formal Op 6 (Jan 27, 2012)Iowa Ethics Opinion 11-01 (Sept. 9, 2011)Iowa Ethics Opinion 11-01 (Sept. 9, 2011) Encryption – passwords – accessNew York State Bar Opinion #842 (Sept 10, 2010) Stay abreast of technologies changes Contract enforces confidentiality Contract enforces security Contract requires notice if served process Recoverability, security, Usee all available technology to prevent infiltrationArizona 09-04 (December 12, 2009)Maine Ethics Comm Opinion ’94 (June 30, 2008)New Jersey Opinion 701 (April 24, 2006)23138930.2 57

3) BLOGSEthical concerns:1) No senior attorney review of associate attorney posting2) Positional conflicts are possible3) Client conflicts4) Become stale-wrong5) Creates unintended client (Florida a “reasonable subjective belief “stateregarding whether an attorney client relationship exists6) Client confidencesA) Kristine Anne Peshek, (Aug 25, 2009)Illinois Asst. Public Defender blogged in a way so as to identify her clientsand was disciplined.Illinois Complaint No. 09-CH 89 License in both Illinois and Wisconsinsuspended for 60 days.B) Florida; Asst. State Attorney Brandon White blogged during his trial.A poem during trial about trial, to be sung to the theme song for Gilligan’sIsland TV Show (April 14, 2012) (co-prosecutor wrote they “were in thetrial from hell”)C) The Florida Bar v. Conway, SC 08-326 (Oct. 29, 2008) blogged about thejudge "evil unfair witch" (See Ex. 4)D) Can constitute advertisements• New York Prof Ethics of 848 (Dec. 22, 2010)• Content – intent – target• Virginia: In Re Matter of Horace B. Hunter, #11-032-084907 (Oct.18, 2010)• Should have a disclaimer4) Twitter – Same Issues as Blogs5) Facebook/Link-InA) Friending(1) Judges can’t friend lawyers Fla. Judicial Ethics Ad. Comm. Opinion No. 2009-20 (Nov. 17, 2009) notallowed Kentucky Judicial Ethic Op JE-119 (Jan. 10, 2010) New York Jud Ethics Opinion 08-176 (Jan. 29, 2009) Ohio Opinion No. 2010-07 (Dec. 3, 2010) allows it, with caution23138930.2 58

South Carolina Op 17-2009 (Oct. 2009) ok for magistratesNorth Carolina No. 08-234 (April 2009) Judge disciplinedFlorida: Judge can’t establish Facebook web page seeking contributions Jud.Ethic Opinion 2010-28 (July 23, 2010Florida: Judge can be a member of voluntary Bar Assoc. Facebook page (OpinionNo. 2010-06 March 26, 2010)Florida: Opinion No. 2010-05 (March 19, 2010) judicial candidate can addattorneys as friendsFlorida: Mediators can friend, but should disclosed (Mediator Ethics and Comm2010-001 (June 1, 2010))B) Linked InSame for “recommend” as for Facebook friendingC) Does it create an inadvertent attorney client relationship?ABA standing Comm on Ethics and Professional Resp. Formal OP 10-457(Aug 5, 2010)6) Chat Rooms Florida Standing Comm. on Lawyer Advertising Op A-00-1 (April 13,2010)• Can’t use to solicit clients• If you answer questions you can create attorney clientrelationship• If you chat with other lawyers about cases, may not beprivileged and could be discoverable; Case No. 09-1987Muniz v. UPS, (USDC NN Calif 1/28/2011)7) Crowd sourcing Outsource micro tasks1. spindle law research tree2. law PivotIssues a) conflictb) privilegedc) discoverable8) Groupon• Discounts for bidding. “Deal of the day” coupons• Fee splitting issues• S.C. Ethics Advisory Opinion 11-05 (Nov. 2011)23138930.2 59

• N.Y. Opinion 879 (Dec. 13, 2011)• N.Y. Formal Ethics Opinion 10 (Oct. 21, 2011)• Conflict issues• Competency• Advertising9) Smartphone Foursquare tells where you are to all on net worth10) MetadataFloridaProfessional Ethics Opinion 06-2 (September 15, 2006) Can’t mine metadata Must protect confidence in metadata If inadvertently receives metadata, must advise sender Excludes metadata in discovery documents.ABA Formal Opinion 06-442 (Aug 5, 2006)Scrub metadata or send PDFDoesn’t prohibit mining11) Electronic Storage MediaFlorida Professional Ethics Opinion 10-2 (Sept. 24, 2010)If store information on printer, copiers, scanner, facsimile must take steps toprotect confidentialityClean before dispose of machineIdentify threatsInventory devices that have hard drives or storageSupervise non lawyersSuspense vendor deposition23138930.2 60