By Peggy S. Hewitt, Esq.
Anticipating a receding 2020 and looking forward to “anything different” in 2021, many Florida lawyers will be confronted with lingering unpleasantness in the form of client-based complaints to the Bar and claims of malpractice for perceived or actual failures, a mixture of our missteps and those not of our making. Without accounting for fault, the client is free to bring a grievance or claim against their lawyer for any reason, real or contrived. The novel coronavirus environment has created a not-entirely new or novel bag of pitfalls, which contribute to this somewhat pessimistic anticipation of a spate of complaints and claims.
The COVID-era lawyer has been inundated with an avalanche of federal legislation governing unemployment benefits, the Fair Labor Standards Act, the Family Medical Leave Act, mandatory sick leave benefits, and coverage (or not) for COVID-related illnesses, which has been implemented, revised, sunset, and restored. In addition, the State of Florida has implemented an even greater expanse of legislation created by the State Legislature and by Executive Order. Lawyers are affected, as all businesses are, by local county and municipal ordinances that ebb and flow with the rise and fall of the virus… all leading to a quagmire and the ultimate question: how to keep above it all and avoid claims altogether?
Client complaints result from a myriad of real and perceived slights and errors, from a failure to return phone calls to missing mandatory deadlines. We can blame the outbreak for a great deal of the danger, simply because we have had to learn how to work in an atmosphere not previously conducive to the overtly social practice of law.
Technology has allowed us to continue our work as lawyers , but virtual communication can be a poor substitute for in-person communication with clients. Pre-COVID-19, one of the most common complaints by clients was that their lawyer took too long to reply to them, or never responded to them at all. Now, the pandemic may be affecting lawyers’ patterns of client communication in unexpected ways. There may be, for instance, a tendency to rely on email alone to remind clients of timed tasks. (One can easily anticipate the client’s grievance: “My attorney should have called me or had someone from the office follow up rather than just expect me to read an urgent email I didn’t notice for a week.”)
Lack of or poor communication seldom results in a successful malpractice claim, unless the communication results in a missed deadline or mixed-signal failure of the parties to complete a timed task. Still, even an unsuccessful malpractice claim can cause tremendous hardship for any law practice. If communication was already a top complaint among clients before the pandemic, it is reasonable to suspect that virtual practice will exacerbate that frustration.
COMPETENCE WITH TECHNOLOGY
Fortunately, clients are becoming more comfortable with conferring with counsel, even in the initial conference, over video conferencing technology formats and telephone. The lawyer, however, has a duty to protect those communications as vigilantly as any written or in-person spoken communication. Rule 4-1.1 requires lawyers practicing remotely to provide competent representation to clients. This duty includes an understanding of the benefits and risks associated with the use of technology. The Ethics Committee opined, and the Board of Governors agreed, that lawyers have an obligation to remain current on developments not only in the law but also in technology. (Florida Bar Ethics Opinion 10-2.) In the first such Opinion on “cloud computing” published January 25, 2013, the Committee indicated “the main concern regarding cloud computing relates to confidentiality.” (Florida Bar Ethics Opinion 12-3.) See more.
Of particular concern is finding secure virtual communications platforms, an issue very publicly addressed by Zoom after several widely publicized incidents that were embarrassing to the participants and could have exposed them to a lapse in confidentiality. The ABA has addressed the issue in Rule 1.6, ABA Model Rules of Professional Conduct: lawyers must use “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Translated to COVID-era communications, “reasonable efforts” means using adequate security measures such as firewalls, passwords, and encryption. Rule 4-1.6 makes all information relating to the representation of a client confidential, whatever the source of the information.
STAYING INFORMED OF COVID-RELATED LEGISLATION, EXECUTIVE, AND JUDICIAL ORDERS
Between March 11, 2020 and October 20, 2020, the Florida Supreme Court has issued 44 Orders and amendments, three Rules, one Memorandum on Best Practices, and numerous advisories setting the framework for a statewide emergency response to pandemic. The Orders cover court procedures during COVID-19, the authorization of administering oaths via remote audio-video format, the suspension and reinstatement of certain deadlines and court proceedings, and a myriad of related subjects, all of which Florida lawyers are responsible for knowing and following. This is in addition to local Circuit Court rules and regulations, which are not uniform across the circuits, and rules expounded by individual judges for their respective courtrooms. Failure to keep up with state and local rules can cause an attorney to miss a deadline or hearing, or fail to attend a proceeding in the correct venue or format.
Differing rules regarding mask wearing have actually caused controversy great enough to make the news, from an attorney filing suit over his COVID-19 infection after a judge prohibited mask wearing in her courtroom to a Texas Supreme Court Chief Judge banning a lower court judge from hearing matters in his courtroom, relegating him to his chambers for refusing to wear a mask despite a statewide mandate. On a greater scale are the local rules regarding discovery and motion hearing deadlines, speedy trial suspensions, adoption of virtual technology formats, and the administration of the Clerk of the Courts. Pile all that on top of the federal emergency benefits changes affecting FMLA leave, unemployment benefits, and the virtual suspension of WARN (of which lawyers are obligated to be aware and able to competently advise their clients). See more. The result is a mountainous new rulebook, much of it temporary and subject to overnight change.
LOSS OF TRUST
While this issue is not original to post-COVID-related litigation, it has grown. The simple fact that parties are sequestered to separate locations gives rise to the opportunity for attorney-client communication outside of the knowledge of opposing counsel during sworn testimony of witnesses. In a Florida Bar complaint filed in Dade County prior to COVID-19, an attorney allegedly sent a text to a client during a deposition, which the client read, and then appeared to opposing counsel, to thoughtfully “reconstruct” her testimony. Opposing counsel became aware of the text and demanded discovery of the contents of the attorney’s and deponent’s cell phones, which was of course objected to, spurring a complaint and a full Bar investigation. As of this writing, the complaint has not yet resolved.
With the advent of nearly universal virtual testimony, opportunity for abuse has increased exponentially, and the loss of trust in this context is not between the attorney and their client, but between opposing counsel. The Rules of Ethics require attorneys to conduct themselves with fairness to opposing party and counsel, Rule 4-3.4. This applies to all parts of litigation, from the responsibility to refrain from bringing spurious or specious complaints to conducting discovery in good faith and not suborning perjury. New technologies muddy the already murky waters of deposition rules versus lore, the difference between what is required under the Rules of Civil Procedure and Evidence, and the folklore created over three centuries of American jurisprudence.
FAILURE TO PREDICT THE PANDEMIC IN INSURANCE AND BUSINESS CONTRACTS
Business Interruption Insurance contracts nearly universally exclude the pandemic as a basis for economic-only losses to business, as the contracts generally utilize language that requires a direct and physical loss required to trigger coverage; ex.: in a case decided in Miami on August 16, 2020, the Florida Southern District Court denied coverage for losses due to COVID-19, favoring the insurer against the insured on the same grounds. In this case, the insured sought recovery for losses related to their government-mandated closure due to COVID-19. The Court reviewed the insurance contract, and ruled the business failed to state a claim because the insurance policy only provided coverage for the actual loss of business income if a direct physical loss or damage to the property caused the suspension to Plaintiff’s operations; Malaube, LLC v. Greenwich Insurance Company.
Almost contemporaneously, in Mama Jo’s Inc., d.b.a. Berries v. Sparta Insurance Company, the Eleventh Circuit Court of Appeals, having jurisdiction over the District Courts of Florida, Georgia, and Alabama, on August 18, 2020 affirmed summary judgment in favor of the insurer where the insured failed to show any direct physical loss in support of its claims for cleaning and business interruption losses where construction related debris and dust allegedly damaged their building. The lower court determined that property that needed cleaning, but was not damaged, had not suffered a direct and physical loss required to trigger coverage, and the Eleventh Circuit Court agreed.
In contrast, a North Carolina state court has ruled in favor of a group of restaurants in pandemic-related business interruption litigation, holding the state’s order to close the restaurants was a covered physical loss under their policies. Sixteen restaurants in five counties in North Carolina filed suit against the Cincinnati Insurance Co. in state court in seeking a declaratory judgment the insurer must replace their lost business income and extra expenses under their coverage, according to the Oct. 9, 2020 ruling in North State Deli, LLC et al. v. The Cincinnati Insurance Co., et. al. The plaintiffs’ primary contention is the government order forcing the restaurants’ closure was a non-excluded “direct physical loss,” and the court agreed, denying summary judgment. The issue facing lawyers in Florida is not necessarily that the courts are overwhelmingly siding with insurers denying businesses recovery for COVID-19-related losses, but that lawyers failed to advise their clients they needed to guaranty recovery for losses due to a pandemic that was allegedly scientifically inevitable.
THE COVID-19-INDUCED ECONOMIC CRISIS AND THE RESULTING INABILITY OF CLIENTS TO PAY FEES
The pandemic has forced millions of workers from their jobs, creating in the newly unemployed a need to prioritize where their state and federal benefits and savings are used. Clients unable to pay their legal fees and costs pass that economic stress on to their attorneys and their firms, and the pressure to collect fees can become intense. There is no greater single risk of client claim to the Bar for malpractice or malfeasance on the part of an attorney than a suit for unpaid fees. As many as two of every five clients sued for nonpayment of fees files a counterclaim for legal malpractice. A client’s immediate response to such a suit is to allege some real or imagined negligence, incompetence, or intentional wrong perpetrated by their (now unpaid) counsel.
The Florida Bar provides a good amount of guidance to consumers of legal services, including an instructional pamphlet titled “A Consumer Guide to Clients’ Rights,” operating the Attorney Consumer Assistance Program, publishing a step-by-step guide to filing a complaint against a lawyer including an online form, and providing a “Discipline Roadmap” for the aggrieved client. The Bar also provides a great deal of assistance to lawyers on the official website, listing in its consumer assistance page alternatives to filing a complaint, a Consumer Pamphlet explaining how fees are calculated, set, and enforced. The Bar also provides guidance on what to do if your client hasn’t paid what is owed according to the fee agreement, and how to do it, in references to the Rules of Ethics and Professionalism, and a variety of instructional articles, including “How To Handle Lawyer-Client Fee Disputes,” Florida Bar News, August 15, 2020. Guidance also comes from lawyers and law firms specializing in legal malpractice defense.
For additional guidance, see: https://www.dentons.com/en/insights/articles/2015/july/1/deciding-when-to-sue-a-client-for-unpaid-fees.
SANCTIONS AND BAR ETHICS COMPLAINTS
Judges have jurisdiction to sanction attorneys for misconduct committed while litigating a case assigned to them when a motion is brought before the Court or on their own if the event occurs before them. Misconduct ranges from violations of the Rules of Civil Procedure and repeat violations of discovery to failure to comply with a direct order from the bench. Direct judicial sanctions range from a striking of pleadings and defenses to monetary sanctions and a report to the Florida Bar. Complaints can be brought by the client, opposing counsel, a judge, and others. A direct complaint is opened by the Attorney Consumer Assistance Program, and if the complaint is not resolved by the attorney with the client, it is then referred to and investigated by the Bar’s Intake Counsel. Intake counsel then determines whether the allegation would constitute a violation warranting discipline, and if not, the case is closed without further action. If intake counsel determines that the allegations would constitute a violation warranting discipline, intake counsel opens a file, notifies the accused lawyer, and requests a response within 15 days. After receiving a response, intake counsel may close the file or refer it to one of The Florida Bar’s five branch offices for further investigation.
If further investigation is warranted or if the lawyer fails to respond to the intake counsel’s notification, the claim will be forwarded to the Bar’s branch that covers the judicial circuit where the lawyer practices. Approximately one-third of cases investigated by ACAP are referred to the appropriate Bar branch office and assigned to Bar counsel for further investigation. If the complaint does not warrant discipline, the case will be closed. If a minor ethical violation is found, the Bar counsel can recommend a “diversionary” measure such as ethics training and is not considered discipline. If there are sufficient grounds to go forward, the case may be forwarded to a grievance committee, also in the attorney’s home circuit. The committee chair then assigns the case to a committee member, who interviews witnesses and reviews any evidence and makes a recommendation to the grievance committee. The committee can then utilize several options, including a finding of no probable cause, with or without a letter of advice. This ends the case. The committee can recommend mediation or arbitration if the claim is the result of a fee dispute; issue a finding of minor misconduct and recommend a diversionary action; recommend a deferral of discipline until the conclusion of a parallel criminal or civil case; or issue a finding of probable cause. If the grievance committee finds probable cause to believe that discipline is warranted, before trial, the Disciplinary Review Committee of the Board of Governors can intervene and review the findings of the grievance committee and agree or disagree with the findings.
The DRC typically reviews 25 to 40 disciplinary cases at each of the Board of Governors meetings held every two months. If the BOG agrees with the committee, the lawyer can avoid trial by accepting a consent judgment or plead guilty. If that does not occur, the case proceeds to trial. Bar counsel will file a formal complaint against the lawyer with the Supreme Court of Florida and is referred to a referee who takes evidence and makes recommendations regarding guilt and appropriate sanctions. This report is then filed with the Florida Supreme Court and undergoes additional review by the Board of Governors. Both the accused and the BOG have 60 days to appeal the referee’s determination. The Supreme Court can approve or disapprove any aspect of the referee’s report. The Supreme Court then renders its decision. (See here for more information.)
The process gives ample opportunity to all parties to resolve the claims prior to a final determination by the Supreme Court. Reviews of disciplinary actions published in the Florida Bar News and Supreme Court Reporter reveal a divergent pattern. The published actions seem to follow two distinct paths: attorneys publicly punished for the most serious of claims, such as commission of a felony or theft of trust funds, versus simply failing to respond to the Bar during the investigation.
The Florida Bar also publishes statistics on discipline. Over the past five years, for approximately 7,500 referrals, between 50% and 55% create an open file, resulting in less than 20% of those cases being referred to the Court and the BOG, and less than 5% of the overall complaints resulting in discipline. With a good deal of those being for failure to merely respond to the investigation, the initial dread of receiving notice of a claim should be tempered by the responsible and careful investigation of an allegation made by the Florida Bar and Florida Supreme Court. While we expect claims to increase, as they have a tendency to do in times of economic downturn, we should take heart that we have in Florida a system that supports its lawyers as well as protects the consumer.
|Total Discipline Orders||351||316||275||235||262|
|Disbarment on Consent||7||4||2||1||3|
|Emergency Suspension (Final Sanction Pending)*||5||9||8||13||3|
|Felony Suspension (Final Sanction Pending)*||10||4||4||5||5|
|Suspension with Probation||18||9||8||9||15|
|Suspension & Public Reprimand||2||0||0||1||0|
|Suspension & Incapacity||0||0||0||0||0|
|Total Public Reprimands||67||50||37||33||32|
|Public Reprimand w/Probation||11||12||10||7||9|
|Conditional Admission Probation||32||33||41||20||9|
*Not included in Total Discipline Orders because they are not yet final orders.
**Interim suspensions are imposed by the court’s own motion and are pending final outcome. (See: https://www.floridabar.org/public/acap/lawyer-discipline-statistics/.)