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Section 57.105's new look: the Florida Legislature encourages courts to sanction unsupported claims and dilatory actions.

The Florida Legislature's recent overhaul of F.S. [section] 57.105 provides courts all over the state with a brand new tool to discourage lazy or unscrupulous litigants (and their legal counsel) from asserting unsupported claims or defenses, or acting in any way to delay civil proceedings. While the language of its predecessor made it the rare case when sanctions were imposed, the new statute alters the applicable standards considerably, and now provides Florida's courts with substantial authority to sanction litigants--and their attorneys--for taking any unsupported position or action to delay the judicial process. Unlike the prior version of [section] 57.105, the new statute applies to any claim or defense, and to any dilatory action; and it may be raised at any time--even by the court sua sponte. And, unlike "Rule 11" (its federal counterpart), the new [section] 57.105 currently (1) provides no "safe harbor" with which challenged litigants and counsel might avoid being sanctioned by simply withdrawing the offending paper or action within a certain period of time.

Since [section] 57.105 has been substantially changed, it is unlikely that prior case law will provide courts or practitioners with much guidance as to what will be expected of them under its demanding new standards. This article reviews the new statute with the aim of offering some direction for bench and bar alike. The authors take a quick look at the language of the new [section] 57.105 and then suggest some possible answers to the myriad questions concerning its substantive and procedural applications. Model forms are provided to assist practitioners and courts in implementing the new statute in practice. Finally, the authors explore the recent decision out of the Fourth District Court of Appeal, the first appellate court in the state to interpret the new law, Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001).

The New Statute

The new [section] 57.105, which became effective on October 1, 1999, (2) provides as follows:

57.105 Attorneys' fee; sanctions for raising unsupported claims or defenses; damages for delay of litigation--

1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party or the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that claim or defense when initially presented to the court or at any time before trial:

a) Was not supported by the material facts necessary to establish the claim or defense; or

b) Would not be supported by the application of then-existing law to those material facts.

However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection the court shall also award prejudgment interest.

(2) Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of Success.

(3) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses in obtaining the order, which may include attorney's fees, and other loss resulting from the improper delay.

(4) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

(5) If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1998.

The New Standard

Unlike its predecessor, which required the movant to establish that a challenged action was completely "frivolous," (3) the new statute has two distinctly separate--and more easily satisfied--standards: 1) a "knew or should have known" (4) standard B under [section] 57.105(1), that requires courts to impose sanctions for any claim or defense that the losing party knew or should have known (5) was not supported by the facts or law necessary to establish its viability, and 2) a new "unreasonable delay" standard under [section] 57.105(3), that provides for the imposition of sanctions without regard for the substantive merits of a particular pleading or motion, and which applies whenever the court determines that the action was primarily undertaken to cause "unreasonable delay" in the proceedings. (6)

In essence, the new statute subjects civil litigants to sanctions for asserting any position that does not find substantial support in both fact and law, or for taking any action seen as "intended" to delay the proceeding. In subsection (1), the legislature has heightened (or perhaps reiterated) counsel's duty of legal and factual diligence. (7) While the prior statute limited the court's power to award fees to only those situations in which the movant was actually able to establish "a complete absence of a justiciable issue of either law or fact" (the so-called "frivolous" action), (8) the new standard calls for the imposition of sanctions in any situation where the court finds that the losing attorney or litigant "should have known" that the challenged claim or defense was not "supported" by the facts, or by the application of then-existing law to those facts. (9) And, while the old [section] 57.105 required the movant to establish that the entire action was without merit, the new statute can be applied to any individual claim or defense in the proceeding, and a motion for sanctions may be filed at any time. (10)

The new subsection (1) requires the movant to establish that the offending party either "knew" or "should have known" that the claim or defense being challenged was not founded on fact or the applicable law. As such, [section] 57.105(1) can actually be applied in at least two different situations: 1) where a party (or counsel) has asserted "facts" which cannot be substantiated by the evidence or testimony; or 2) where an otherwise accurate set of facts does not support the particular theory of law to which it is ascribed. Reflecting the Bar's "ethical" rules, which have almost always required attorneys to conduct a thorough presuit investigation of the facts and law, (11) this new statute is certain to encourage civil litigants (12)--and their counsel--to conduct more intensive investigations and research than have been conducted in the past. These investigations must delve into both the facts and the applicable law for each and every claim (or defense) a party seeks to assert.

Even if the facts and applicable law have been represented correctly, a court may still impose sanctions under [section] 57.105(3) if it finds that the party or lawyer has taken an action for the "primary purpose" of causing "unreasonable delay" to the proceedings. (13) This section is obviously intended to discourage the now all-too-common "delay tactics" used by unscrupulous (or lazy) litigants and their counsel. Although the statute does not specify which actions fall within its scope, it is conceivable that sanctionable conduct under this subsection might include tactics like: making unjustified objections at depositions; (14) improperly instructing clients not to answer nonprivileged questions; (15) filing dilatory motions for protective orders (especially those purposely filed at the last minute); (16) setting an unreasonable number of depositions; drafting overbroad discovery requests; interposing unexplained objections to discovery requests; (17) providing overbroad or unnecessarily voluminous discovery responses; failing to properly identify discovery responses (or simply responding with a generalized reply, such as "available for inspection and copying upon request," when a more specific response is appropriate); (18) or moving for time extensions to assert claims or defenses without justifiable grounds. (19)

Quite conceivably, subsection (3) could also be utilized to sanction dilatory "motions to continue" which fail to provide justifiable grounds for the requested continuance, or for overbroad motions to dismiss (i.e., those which provide no true guidance as to the actual grounds being asserted or have no chance of success), for filing unduly lengthy witness and exhibit lists, or for failing to provide useful addresses for those witnesses. (20)

It is important to remember that when applying [section] 57.105(3), the court is not to look to the substantive merit of the challenged action, but only to its "primary" purpose, that is, the court is only to determine whether the objectionable action was taken to "unreasonably delay" the proceeding. As with subsection (1), the motion can be made at any time, but unlike subsection (1), subsection (3) appears to require that an evidentiary hearing be held before the court imposes any sanctions. (21) When a purposeful delay is found, the statute provides that the court "shall" award the movant attorneys' fees, reasonable expenses, and any other loss that is compensable. (22)

Just Who Is Entitled to Move for Sanctions?

Both subsection (1) and subsection (3) permit a [section] 57.105 motion to be raised by "any party" or "upon the court's initiative." The term "party" is to be read expansively in this context, and could very well include a number of persons or entities who are not actually named as parties in the litigation. (23)

In addition, subsection (1) of the new statute now authorizes the court to determine "on its own motion" (24) when a litigant (or counsel) should have known that a particular claim or defense lacked sufficient legal or factual support. (25) The statute provides little guidance, (26) however, as to how and when a court should act on its own initiative. (27) While courts should certainly be encouraged--whenever appropriate--to apply their authority here, a trial judge contemplating sua sponte action may wish to provide potential sanctionees with some sort of due process, perhaps providing the affected parties or counsel with the opportunity to file a written justification for the objectionable conduct (i.e., to avoid the immediate imposition of sanctions) or otherwise permit them to be heard on the matter. (28) Although not required, such precautions could only serve to aid the trial judge (and any reviewing court) in ensuring that all parties have been provided adequate opportunity to be heard and to present argument and testimony, which can then in turn serve as record support for the propriety of the trial court's ruling. (29)

In fact, if the court is considering sanctions against litigant and counsel, it might also be a good idea to provide the individual litigant(s) with a separate opportunity to proffer defenses that may be different from, or independent of, those that might be raised by counsel. (30) And, wherever appropriate, the trial judge may wish to permit litigants additional time to engage separate counsel for the limited purpose of the [section] 57.105 hearing--even where there may be no actual conflict with the litigant's present counsel. This is because the application of the statute may work to place the lawyer and litigant in an adversarial position, (31) and may in fact impact the attorney-client relationship, affecting privilege and confidentiality. This may require the trial judge to consider an in camera inspection of documents or evidence, or an appointment of a separate special master to review the evidence and determine whether a sanction is appropriate.

When Can the [section] 57.105 Motion be Filed?

In stark contrast to its predecessor, the new statute expressly provides that a party may file a [section] 57.105 motion "at any time during a civil proceeding or action." (32) In fact, although the statute appears to require the filing of a motion, it does not appear that the motion needs to be made in writing.

Under the prior statute, a prevailing party could only seek sanctions after a final judgment had been issued, and it required the prevailing party to file a formal motion, within a reasonable time. (33) The new language of [section] 57.105, however, authorizes the court to impose sanctions at any time during the proceeding--even before trial. (34)

The language of the new statute suggests that the motion be made when the movant has "prevailed" over an unsupported argument (or proven purposeful delay), but there is nothing in the statute to prevent such a motion from being filed prior to an anticipated victory, or after that victory has been won. (35) In fact, it is already apparent that a [section] 57.105 motion can be raised on appeal as well. (36)

Indeed, after losing on a particular claim or defense at a hearing, the losing party could quite conceivably bring a successful appeal on that issue, and then seek sanctions for the untenable argument proffered by the "initial" winner in the trial court below. (37)

How Should a Motion for Sanctions Be Raised?

The legislature did not establish the exact procedure to be followed in making a motion under the new [section] 57.105, and the Supreme Court has yet to speak to the issue. Some basic rules, however, would seem to apply. First, the particular format to follow in a [section] 57.105 motion likely would depend on the circumstances of the situation and the severity of the sanction being requested. At the very least, the motion should identify the offending pleading or the particular "action" the movant believes to be sanctionable, and should state those specific grounds which establish how it either lacks the proper support or was intended just for delay. The motion should also identify the specific sanction being sought. In many situations, the judge's prior participation in the proceedings is likely to provide the bench with full knowledge of the relevant facts, and further inquiry will not be necessary. Each motion should be tailored to the specific facts and circumstances of the case. A form motion is enclosed in the notes to this article. (38)

A court considering sanctions may wish to issue some sort of "show cause" order (i.e., identifying the potentially sanctionable conduct, and setting a time for a hearing in that regard--perhaps one which would be analogous to that used in a contempt hearing). (39) In this way, the court will be best able to follow the mandate of the new statute, but at the same time provide some notice to the offending party as to its intent to impose sanctions, and offer the sanctionee an opportunity to respond. Any such order should identify the specific pleading or other paper subject to sanctions and set a hearing time to consider any evidence or defenses. (40) Then, if the court does determine that sanctions should be imposed, it should enter an order that details the separate findings which justify each sanction and identifies under which subsection the sanction is being imposed. (41) A model order is included in the notes to this article. (42)

The Sanctions Available

The new statute authorizes a variety of sanctions, including attorneys' fees, "reasonable expenses," and even "damages." (43) Each section has its own remedies and rules of application. Under subsection (1), the court is authorized to award the prevailing party a "reasonable attorney's fee," and the fee is to be paid "in equal amounts by the losing party and the losing party's attorney." Under subsection (3), sanctions are only available against an "opposing party." Although the new statute does not prescribe any particular method to determine the amount of such fees, the movant should be expected to make the appropriate allegations and, if necessary, provide supporting evidence in a separate filing. In some cases, a hearing on the amount of the fees may be necessary. (44)

As mentioned, subsection (3) of the new statute also permits the prevailing party to collect "damages" caused by the "delay," but it does not specify just what kind of damages might be recoverable. A prevailing party under subsection (3) (i.e., one proving a "purposeful delay") is entitled to seek "damages" for the "reasonable expenses" incurred in securing the order. And that section specifically provides the award of damages may include "other loss resulting from the improper delay."

Subsection (4) of the new statute also provides that the court may award any "other sanctions or remedies available under law or under court rules." (45) This subsection makes it clear that the intent of the new statute is to expand the scope of sanctionable acts available, and it encourages courts to do so by 1) emphasizing the responsibilities of each litigant and attorney, and 2) by enforcing those obligations through the imposition of the wide array of sanctions now available.

Defenses to [section] 57.105 Sanctions

There are several defenses which can be raised to a motion made under [section] 57.105, and which defenses are applicable will depend on which subsection the particular motion invokes, and whether the potential sanctionee is a party or an attorney. First, of course, any potential sanctionee (be it litigant or attorney) can argue that the motion is unsubstantiated, arguing in essence that it does not put forth sufficient allegations to warrant a hearing or ultimate sanction.

If the motion is properly pled, potential sanctionees can still avoid liability in a number of ways. If the motion is made under [section] 57.105(1), and attacks the substantive merit of a particular legal position taken, the potential sanctionee may be able to avoid liability upon a showing that the otherwise unsupported position of law had actually been: 1) grounded upon a good faith argument for the "extension" or "modification" of the law (or on a request for the creation of new law); and 2) that the plea for a change in the law had a "reasonable" expectation of success. (46) This two-part defense is grounded in the pleader's "good faith" belief, and is to be judged under an "objective" standard, and thus requires a showing that the sanctionee -- or more likely the sanctionee's counsel -- possessed a demonstrable "good faith" belief that the argument for changing the law was both reasonable and feasible. (47)

There is also a "defense" against [section] 57.105 sanctions that is available only to attorneys. Subsection 57.105(1) provides that a losing party's attorney will not be held personally responsible for a pleading or other paper containing unsubstantiated facts if he or she can demonstrate having acted in "good faith," in relying on a client's representation (48) as to the existence of those material facts. (49) Thus, this subsection provides a "safe harbor" of sorts for the losing party's attorney (but not the losing party), if the attorney can establish that the client either lied or was wrong about the critical facts of the case, that he or she acted in "good faith" in relying upon the client's inaccurate recitation. This defense also requires a showing of "good faith," and as such, an attorney who seeks to invoke it will likely have to establish that he or she conducted a "reasonable" investigation of the client's story, or otherwise had good reason to rely upon the client's representations. Obviously, if the client represented the facts inaccurately and his attorney has to prove his own client was wrong (i.e., just to avoid sanctions), the case itself might be in jeopardy--not to mention the attorney-client relationship--so being "sanctioned" may be the least of everyone's problems. Accordingly, lawyers today need to be particularly careful to investigate the underlying facts and supporting documentation for each claim or defense the client's version of the facts seems to raise, and should verify--through independent sources if possible--the critical facts which support them. (50)

The language of the new statute thus seems to draw a distinction between the [section] 57.105 motion directed at unsupported "factual" claims, and those which might be directed at unsupported "legal" claims. This "good faith" defense--applicable only to factual representations and presumably available only to attorneys--contrasts starkly with the "good faith" defense of positions of law, which can be utilized by either a litigant or an attorney. (51)

As subsection (3) establishes an entirely new substantive right, it is not yet clear what "defenses," if any, can be raised to such a claim. Presumably, in light of the movant's burden under subsection (3) to prove the purposeful delay by "a preponderance of the evidence," the challenged party can argue that this burden has not been met. Other than that, there are no known defenses to this motion at this time.

Forum v. Boca Burger

In Forum v. Boca Burger, Inc., Florida's Fourth District Court of Appeal became one of the first appellate courts in the state to construe and apply the new statute. (52) The case and opinion provide a rather stark glimpse into both the possibilities and the promise of the new [section] 57.105. In Boca Burger, a plaintiff in a civil suit filed an action seeking damages for the defendant's mislabeling of a food product. (53) The defendant moved to dismiss the complaint, but on the day of the hearing, the plaintiff filed an amended complaint. The amended complaint was actually filed by several different lawyers, including at least one whose name had not appeared on the original complaint. (54)

At the hearing on defendant's motion to dismiss, the trial judge voiced some concern over the plaintiffs last minute filing of the amended complaint, and focused upon the fact that the lawyer appearing at the hearing on the plaintiffs behalf had not actually been the one to sign the original complaint (i.e., the complaint being challenged by the motion then before the court). The plaintiffs "new" counsel informed the judge that he had just filed a notice of appearance that morning along with the amended complaint, (55) but the judge nevertheless proclaimed that he had a "fundamental problem" with the fact that the complaint had been amended without leave of court, and that the plaintiffs "new" lawyer had not been the one who had signed the complaint which constituted the subject of the hearing. (56)

The trial judge then asked defense counsel if he had any problems with either of these matters. (57) Defense counsel informed the judge that he knew that the lawyer who had filed the plaintiffs original pleading had his own firm, and that one of the lawyers signing the amended pleading had a different firm, which appeared to be located at the same address as the first. (58) Defense counsel admitted that he had communications with one of the new lawyers listed on the amended pleading, but added that "he's never defined exactly--to my knowledge--his role...." (59) The trial judge again indicated his disapproval of the appearance, but decided to "skip that one for a minute." (60)

The trial judge, discussing the amended complaint, bemoaned the fact that the hearing had been set for nearly four weeks and the amended complaint had actually been filed on the very day of the hearing. (61) Plaintiff's counsel tried to point out that the rules expressly permit such an amendment (without leave of court) at any time before the fling of a responsive pleading, and stressed to the court that the defendant's motion to dismiss was not a responsive pleading. Again, the trial judge turned to defense counsel for a response. (62)

Unfortunately, instead of just conceding the issue, defense counsel cited case authority from a federal trial court in Michigan that, as he put it, "suggests that attempting to amend a complaint while a motion to dismiss is pending is procedurally improper and causes prejudice to the party seeking to dismiss the complaint." (63) Counsel also cited the court to a bankruptcy case, which he claimed to be of the same effect. He then argued that the Fourth District's decision in Life General Security Insurance Co. v. Horal, 667 So. 2d 967 (Fla. 4th DCA 1996), "suggests that leave to amend or attempting to amend a complaint at the eleventh hour would cause prejudice to the opposing party, and it is within the discretion of the trial court to deny." (64) While conceding that "the rule is what it is," defense counsel went on to contend "it is within the court's discretion to deny leave to amend." After hearing these arguments, the trial judge granted the defendant's motion to dismiss, and the plaintiffs appealed. (65)

On appeal, the Fourth District reversed the trial court's ruling, finding that neither argument made by the defense was supported in law, nor made in good faith. The court pointed out that Florida's procedural rules are not controlled by interpretations of the Federal Rules of Procedure, and particularly not by the interpretation of federal rules made by federal trial courts in Michigan. The court then noted that Rule 1.190(a) of Florida Rules of Civil Procedure specially permits a plaintiff to amend a complaint without seeking leave of court if the only "response" at the time the amendment is made has been a motion to dismiss. (66) Under this rule, the only requirement is that the amended complaint be filed before a responsive pleading is filed; and the motion to dismiss filed by defendant was not a "responsive pleading." (67)

The Fourth District concluded that the trial judge in Boca Burger had been misled by the defense counsel's unsupported argument on both of these issues. The Fourth District found the propriety of the plaintiffs "last-minute" addition of counsel to be incontrovertible. The court also found it incontrovertible that the plaintiff in Boca Burger had every right to amend the complaint under the applicable rules without leave of court. In fact, the legal sufficiency of the original complaint had actually been mooted by the amendment, and thus there was no need to even have the hearing. (68)

Turning to the question of issuing sanctions under the new statute, the district court stressed how the new [section] 57.105 now applies to any claim or defense, and not just an entire action, as did its predecessor. And, as discussed above, the court reiterated that sanctions were no longer to be imposed only when there is "a complete absence of a justiciable issue of either law or fact raised by the losing party," but whenever it is shown that the litigant or his trial counsel "knew or should have known" that the claim or defense asserted was either not supported by the facts or not supported by an application of "then-existing" law. (69)

Applying the new standard to the conduct of the defendant (and its attorneys), the Fourth District concluded that an award of fees was mandated by the new statute. The court found that there was no possible view of the law that could have supported counsel's implication (70) that the appearance of the new attorney at the hearing was somehow improper. (71) The court also held that it was equally unsustainable for the defense to have "suggested" that the trial court had any power to disregard the proper filing of the amended complaint, because in Florida, an amended complaint can be filed at any time before a responsive pleading is filed. (72) The court thus concluded that there was no possible view of the law to support defense counsel's claim that the legal sufficiency of the original complaint was still at issue, or that the defendant's motion to dismiss the original complaint was in any way applicable to the amended complaint the plaintiff had (quite properly) filed earlier that day. (73) The court also found that counsel's conduct could not have been based upon "factual" representations of the client, or any "good faith" attempt to change or modify existing law. (74)

The Fourth District concluded by pointing out how the heart of all legal ethics is found in the lawyer's duty of candor to the tribunal. (75) The court noted that unlike many other provisions in the disciplinary rules which rely primarily upon the court (or opposing lawyer) for their invocation, the duty of "candor" is essentially a matter of self-regulation, and every lawyer has an ethical duty to spontaneously disclose contrary authority to a court that is laboring under a misconception of law. (76) The court conceded that this obligation may at times seem "counter-intuitive" to the lawyer's principal role as an advocate and noted how it is often invoked at the most inopportune time--when victory seems right within the advocate's grasp--but then stressed that it is these very things that the duty makes necessary. (77)

Conclusion

The new [section] 57.105 now mandates that courts impose sanctions whenever the circumstances demand it, and the new standards expand those circumstances considerably. The language of the new statute will undoubtedly increase the number of situations that could justify sanctions, and should encourage courts to overcome their traditional reluctance to intervene unless requested to do so by one of the parties. Everyone needs to know the new rules created by this new statute.

This new law sounds a needed alarm to all civil litigants and their attorneys while it simultaneously seeks to strengthen and reinforce those standards of professionalism and ethics already in place. Hopefully, other courts in Florida will follow the lead of the Fourth District in Boca Burger and utilize this new statute to discourage the use of dilatory and abusive tactics now routinely practiced in our state's courts. The new statute could help to streamline the litigation process by decreasing the number of unsupported claims and defenses brought before the bench and by reducing the all-too-common dilatory actions taken by unscrupulous parties, and it could very well work to significantly lessen the need for more judges and courthouses as dockets are flushed clear of meritless litigation and meaningless hearings.

This new statute is likely to illuminate--and perhaps even broaden--an attorney's duty of candor; at the same time, it expressly commissions the state's courts to impose sanctions--on the court's own motion if necessary--when that duty is breached in any way. Ladies and gentlemen, it is a new day. Go forth prepared and forewarned.

(1) It should be noted that in late November of 2001, a bill was prefiled in the Florida House of Representatives by Representative Seiler (HB 487), and an identical bill was filed in the Florida Senate by Representative Campbell of (SB 0528). Both bills seek to amend the new statute slightly, and establish just such a "safe harbor" language similar to that found in Rule 11 of Federal Rules of Civil Procedure.

(2) The "new" [section] 57.105 was created as but one component of the comprehensive reform to civil litigation enacted by the legislature in 1999. Chapter 99-225 Florida Laws provides that the new [section] 57.105 "shall take effect October 1, 1999," and this language may leave some room for interpretation as to whether it should be applicable to actions filed prior to that date, but which were (or still are) ongoing as of the effective date. Since the statute applies to claims or defenses rather than the entire action, it is logical to assume that it could apply to the filing of an improper "claim or defense," or to any unreasonable action taken after October 1, 1999, the effective date of the statute, even if the wrongful act occurs in a case which had actually been filed prior to that date.

(3) Rojas v. Drake, 569 So. 2d 859, 860 (Fla. 2d D.C.A. 1990). See also FLA. STAT. [section] 57.105 (1990).

(4) Federal case law may be helpful here, as a number of federal courts have applied a negligence standard when considering the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure. See, e.g., U.S. v. Claros, 17 F.3d 1041, 1047 n.4 (7th Cir. 1994).

(5) Id.

(6) FLA. STAT. [section] 57.105(3) (West Supp. 2000).

(7) See, e.g., Rule 4-1.3 of the Florida Rules of Professional Responsibility.

(8) See, e.g., Mukenfuss v. Deltona Corp., 508 So. 2d 340, 341 (Fla. 1987) (fees will not be awarded to prevailing party under [section] 57.105 unless court finds total or absolute lack of justiciable issue, which is tantamount to finding that action is frivolous and so clearly devoid of merit both of facts and law as to be completely untenable).

(9) FLA. STAT. [section] 57.105(1) (West Supp. 2000).

(10) Id.

(11) See Rule 4-3.1, Fla. Rules of Professional Responsibility.

(12) Although there is nothing in the new statute to suggest that the standard for for pro se litigants sanctions under the new [section] 57.105 will be different (i.e., than with those who are represented by counsel), a sanctioning court would presumably be equipped with sufficient discretion to take into account the special circumstances which often arise in pro se situations. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972), in which the U.S. Supreme Court noted that pleadings drafted by pro se litigants should be held to a less stringent standard than formal pleadings drafted by lawyers.

(13) FLA. STAT. [section] 57.105(3) (West Supp. 2000).

(14) The Supreme Court previously sought to curb such obstructionist conduct by enacting the 1996 amendment to Rule 1.310(c) ("Any objection during a deposition should be stated concisely and in a nonargumentative and nonsuggestive manner"). See also In re Amendments to Florida Rules of Civil Procedure, 682 So. 2d 105, 117 (Fla. 1996). Circuit courts and bar organizations have also implemented guidelines in an effort to stop such abuse. See, e.g., Guidelines for Professional Conduct (Florida Bar Trial Lawyers Section, [section] E at paragraphs 8, 9, and 11) ("Counsel defending a deposition should limit objections to those that are well-founded and permitted by the rules of civil procedure or applicable case law.... While a question is pending, counsel should not, through objections or otherwise, coach the deponent or suggest answers. Should any lawyer do so, the courts are urged to take stern action to put a stop to such practices and to serve as a deterrent to others. Counsel for all parties should refrain from self-serving speeches during depositions"). See also Uniform Administrative Policies & Procedures, [section] XIV, Deposition Guidelines; 3 Fla. L. Supp. 164 (Fla. 9th Jud. Cir. 1995) ("speaking objections and other tactics and recesses for coaching a deponent during a deposition are improper and may also be cause for sanctions"); and Steven G. Mason and William J. Sheaffer, Deposition Potpourri, 75 FLA. B.J. 77, 78 (June 2001); and Gleneagle Ship Management Co. v. Leondakos, 602 So. 2d 1282 (Fla. 1992). While Rule 1.310(d) permits the filing of a "motion to terminate or limit examination," the difficulty in enforcing this provision has substantially weakened its effect on such improper conduct. The new [section] 57.105 may be of help here.

(15) Section 57.105(3) may provide another avenue to secure sanctions for dilatory conduct during depositions. FLA. R. CIV. P. 1.310(c) (1999) provides very limited grounds upon which counsel may instruct a witness to not answer a question (i.e., allowing the instruction only where it's "necessary to preserve a privilege," or to "enforce a limitation on evidence directed by the court," or to make a motion to terminate or limit a deposition) under Rule 1.310(d). Counsel should not interrupt or delay discovery proceedings by asserting the need for record discussions under the ruse of claiming it is necessary to determine whether a privilege should be asserted. Accord Fisher v. Goord, 184 F.R.D. 45, 48-49 (W.D.N.Y. 1999) (reiterating Guidelines for Discovery Depositions); ("Counsel and their witness/clients shall not initiate or engage in private off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege").

(16) Of course, there may be situations where it might be appropriate to file a motion for protective order. However, consistent with the new [section] 57.105, courts should no longer have to tolerate unjustified or last-minute filings of such motions, particularly so where the subject in dispute could (and should) have been timely resolved--through agreement--long before the scheduled event that gave rise to the motion. If a litigant believes he or she has an appropriate justification to move for a protective order, the litigant should immediately contact the opposing party and attempt to resolve the matter and, failing a suitable resolution, immediately file the motion and seek to have it timely heard. Momehah v. Ammache, 616 So. 2d 121, 124 (Fla. 2d D.C.A. 1993) (providing that it is proper for a "a party seeking the order [to] make his motion as soon as the need for it becomes known and tries to obtain a hearing on the motion before the time set for compliance with the order ... ."); Staples v. Rivers, 559 So. 2d 440 (Fla. 1st D.C.A. 1990).

Unfortunately, until now, Rule 1.380 has not been used successfully to discourage abuse of the discovery process. Perhaps the new [section] 57.105 will provide courts with the tools they need (and the parties with the motivation they need) to expedite this component of the proceeding. See also Tramel v. Bass; 672 So. 2d 78, 83-84 (Fla. 1st D.C.A. 1996) (outlining the court's inherent power to award sanctions for discovery violations, including the striking of pleadings and the issuance of a default judgment).

(17) This common pretrial tactic lends no efficiency to the expeditious resolution of discovery issues. The new statute may find such blanket objections (i.e., refusing to produce documents or answer questions by labeling them as "overbroad" or "objectionable") fit squarely within its scope. Thus, an objection should clearly identify its legal basis. This practice helps to bring the issues into focus, and perhaps may clear the way for an agreement for a more refined discovery request.

(18) There is no excuse for the failure of the responding party to identify which documents correlate to which discovery requests, and this practice could very well fall within the prohibition against "unreasonable delay" enacted in subsection (3). Furthermore, the common response, "available for inspection and copying," while sometimes appropriate, should not allow a responding party to delay compliance even longer by placing additional conditions concerning when or how the documents or items are to be viewed. A party providing this sort of response should be required to identify the specific dates within the response period that such documents or items will be available. The proponent of the discovery may then schedule an inspection at his or her own convenience.

(19) While counsel should be strongly encouraged--consistent with general tenets of professionalism and local rules regarding litigation conduct--to agree with extensions of time whenever possible, litigants should not be permitted to circumvent established filing deadlines with last minute, unsupported motions for extensions of time (i.e., those filed without sufficient grounds or request for hearing). The application of the new subsection (3) of [section] 57.105 will hopefully help to curb this improper tactic. Consistent with the intended procedure, litigants will be charged with early detection of circumstances that could necessitate an extension, and (in the absence of an agreement) the expeditious filing of such requests in timely securing a hearing to resolve the matter. It should be pointed out that this rule works both ways; as it would also seem to apply to the opposing litigant who unjustifiably refuses to agree to an otherwise validly supported extension request (e.g., by merely asserting that "my client has instructed me not to agree to any requests for extension of time.")

(20) While not often the subject of appellate review, trial judges commonly receive complaints about "overbroad" witness and exhibit lists. Litigants apparently see little downside to this troublesome practice, which only serves to further clog the pretrial process by creating more motions, more discovery, and more requests to strike or continue.

(21) Unlike subsection (1) of the new statute, which only requires the court to "find" a claim or defense to be unsupported, subsection (3) specifically requires that the movant establish the dilatory purpose of the challenged action "by a preponderance of the evidence." It is interesting that the legislature would appear to have given the courts the unilateral power to "find," without any hearing on the issue, that a particular claim or defense is unsupported in law or fact, but yet require an evidentiary hearing to determine whether a particular action may have been intended to "unreasonably delay" a proceeding. Moreover, there is no legislative direction prescribing what sort of "evidence" the movant should put forth to establish the dilatory intent here. Presumably, such evidence would include a substantial recitation of the applicable facts, the pertinent pleadings and papers, and perhaps even testimony by the individual--or attorney--who is alleged to have taken the dilatory action in question.

(22) See "The Sanctions Available" discussed infra. Section 57.105(3) thus represents a substantial departure from the standard applied under the prior statute, where attorneys' fees were not awarded unless the prevailing party could establish that "no justiciable issue" existed upon which to base the lawsuit. See Maryland Cas. Ins. Co. v. Semmer Elec., Inc., 535 So. 2d 670 (Fla. 2d D.C.A. 1988). The current version of the statute now mandates an award for an action primarily taken for delay, even if there are justiciable issues at stake in the litigation. Interestingly, subsection (3) does not identify just whom the sanctions/damages are to be assessed against, but merely provides that damages are to be awarded "to the moving party." As such, there is certainly an argument that such sanctions might be imposed on the losing party, counsel, or both.

(23) See Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 489 (Fla. 3d D.C.A. 2000) (parties include not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing toward the expenses thereof, or who in any manner, have such control thereof to be entitled to direct the course of the proceedings); Lage v. Banco, 521 So. 2d 299, 300 (Fla. 3d D.C.A. 1988) (the word "party" includes one concerned with, conducting, or taking part in any matter or proceeding, whether he is named or not); AVEMCO Ins. Co. v. Tobin, 711 So. 2d 128, 130 (Fla. 4th D.C.A. 1998) (an attorney is a "party"); Florida Ass'n of Nurse Anesthetists v. Dep't of Prof Reg., 500 So. 2d 334, 326 (Fla. 1st D.C.A. 1986) (association which had been permitted to file a response and memorandum of law in administrative proceedings was a "party" to proceedings); Kaiser Aerospace and Electronics Corp. v. Teledyne Indus., Inc., 229 B.R. 860, 873 (S.D. Fla. 1999) (a participant in a confirmed reorganization plan who has a direct interest in the subject matter is considered a "party" even if never formally named).

(24) This reference is something of a misnomer; the court actually just acts on its own "initiative" and no motion is actually made or filed. See TRAWICK, FLORIDA PRACTICE AND PROCEDURE [section] 9, [section] 9-1 (2001).

(25) If the statute is to have any meaningful effect, a trial judge should be permitted to sanction a party or counsel in the appropriate circumstances, and such action should not be sufficient grounds, on its own, to disqualify a judge from the case. See Thompson v. State, 759 So. 2d 650, 651 (Fla. 2000), and authorities cited therein (adverse ruling may not be the basis for disqualification).

(26) It is possible that the Florida Legislature, in promulgating the new statute, deliberately sidestepped the procedural issues because of the concern that such action might violate the "separation of powers" doctrine (i.e., by delineating court procedure to state's courts). See FLA. CONST. art. II, [section] 3. The new statute quite clearly establishes a "substantive" right to seek an award of fees and damages caused by the result of an improper use of the judicial system. However, while the legislature has established this substantive right, the courts have exclusive power to adopt rules for practice and procedure. See FLA. CONST. art. V, [section] 2(a); see also Allen v. Butterworth, 156 So. 2d 52, 53 (Fla. 2000). In any event, any such order should contain specific findings of fact and law so as to comport with basic principles of due process.

(27) Federal cases interpreting the "safe harbor" provision of Rule 11 of the Federal Rules of Civil Procedure may provide instructive reasoning on what a court might consider when acting "on its own initiative." While the new statute might serve to encourage courts to impose sanctions for unsupported or dilatory actions, the [section] 57.105 standard should probably be applied with particular stringency when a court seeks to act sua sponte. Cf. United Nat. Ins. v. R & D Latex Corp., 242 F.3d 1102, 1115-16 (9th Cir. 2001) (using the "particular stringency" standard where a court imposes sanctions on its own motion).

(28) While not specifically required by statute, where a court wishes to act "on its own motion," it may, for example, issue an "order to show cause" why sanctions should not issue, directing the defending party to file an appropriate response. The hearing might also be used to consider evidence which might shed light on the appropriate sanctions (i.e., via mitigation or enhancement evidence). See, e.g., Neder v. Financial Corp., 592 So. 2d 1218 (Fla. 1st D.C.A. 1992); Franchi v. Shapiro, 650 So. 2d 161 (Fla. 3d D.C.A. 1995). Cf. Westley v. Hub Cycles, Inc., 681 So. 2d 719 (Fla. 2d D.C.A. 1992) (determining it was error to award sanctions under Rule 1.380 where the record failed to show that counsel had been dilatory or willfully refused to produce documents).

(29) However the issue is initially raised, a judge imposing sanctions under the new statute should not view such action as an indication that any remaining portion of the sanctionee's case is without merit.

(30) For example, the attorney seeking to avoid personal sanctions may try and claim that the client misrepresented the facts upon which the pleading was based. The client in such a situation might very well dispute that contention.

(31) See discussion note 29, supra.

(32) FLA. STAT. [section] 57.105 (West Supp. 2000).

(33) See, e.g., FLA. STAT. [section] 57.105(1) (1994).

(34) Prior to this most recent revision, the statute had been altered in that regard. See, e.g., Department of Revenue v. Allen, 772 So. 2d 633, 633 (Fla. 1st D.C.A. 2000) (recognizing that [section] 57.105 was recently revised to allow attorneys' fees if a claim was known to be without support in fact or law at any time before trial).

(25) Interestingly, while the new statute appears to permit the [section] 57.105 motion to be filed at any time, it should be noted that the new Florida Rule of Civil Procedure 1.525, effective January 1, 2001, establishes its own time requirement for filing motions for costs and attorneys' fees. This rule provides that any party seeking costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment. It is yet to be seen how this rule will be reconciled with the language in [section] 57.105. Cf. McAskill Publications Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th D.C.A. 1994) (trial courts should generally not grant "unreasonably tardy" posttrial motions for attorneys' fees, in this case filed three months after judgment on the merits); Nat'l Env. Prod., Ltd., Inc. v. Falls, 678 So. 2d 869 (Fla 4th D.C.A. 1996) (motion filed 19 months after judgment was presumptively unreasonable delay).

(36) Forum v. Boca Burger, 788 So. 2d 1055 (Fla. 4th D.C.A. 2001).

(37) This is precisely what happened in Boca Burger. Id. Interestingly, under the former statute a party was not required specifically to plead the request for attorneys' fees in order to be entitled to such fees under [section] 57.105. Bruce v. Barcomb, 675 So. 2d 219 (Fla. 4th D.C.A. 1996).

(38) The following is just a "form," of cause, and must be tailored to meet the particular facts and circumstances of each case.

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA. CIVIL DIVISION

CASE NO.: JOHN DOE, Plaintiff, V. JOHN DOE, Defendant.

Motion for Sanctions Under [section] 57.105

Pursuant to [section] 57.105 Florida Statutes (Supp. 2000), Plaintiff John Doe respectfully requests that this Court enter an Order imposing sanctions, including, but not limited to, attorneys' fees and/or other sanctions against [identify the potential sanctionee-litigant, counsel and/or third party], and as grounds for seeking such relief and would state as follows:

1. The [potential sanctionee] has [identify (a) the particular pleading, action and claim or defense challenged under subsection (1), or (b) the specific dilatory actions that fall within the scope of subsection (3)].

2. Subsection 57.105(1) Florida Statutes (2001) provides that upon the court's initiative, or by motion of any party, the court shall award a reasonable attorneys' fee to be paid to the prevailing party in equal amounts by the losing party or the losing party's attorney when the losing party or the losing party's attorney knew or should have known that a particular claim or defense was not supported by the material facts necessary to establish the claim or defense; or would not be supported by the application of then-existing law to those material facts. [(If proceeding under subsection (3) of [section] 57.105, identify that it provides that the court shall award damages, including attorneys' fees to a movant who is able to establish by a proponderance of the evidence that an action of the opposing party took any action in the proceeding "primarily for the purpose of delay."]

3. The opposing party or counsel [for motions made under subsection (1), identify the challenged document and the specific claim or defense claimed to be unsupported; for motions made under subsection (3) identify the specific "action" which is claimed to have unreasonably delayed the proceeding].

4. [If proceeding under [section] 57.105 (1)]

a). [identify the challenged pleading, claim or defense] could not have been asserted in good faith.

b). state the specific factual and legal support to establish that the pleading is sanctionable, identify each witness or document that might provide support and whether an evidentiary hearing is requested.

c). The pleader knew or should have known that [the challenged pleading] had no basis in fact or law.

5. [If proceeding under Subsection (3)]

a). The [potential sanctionee] took the following actions primarily to delay these proceedings: [identify sanctionable conduct under Subsection (3)].

6. The Movant has incurred damages, including [specifically identify all damages, and any and other losses that will support legitimate requests for other relief].

7. The Movant is entitled to an award of attorneys' fees, damages, and such other sanctions as the court deems appropriate. See Forum v. Boca Burger, 788 So. 2d 1055 (Fla. 4th D.C.A. 2001) and [section] 57.105[(1) or (3)].

Wherefore, Movant respectfully requests this Court enter an Order imposing Sanctions under [section] 57.105, including [any or all] of the following: 1) an award of attorneys' fees and costs incurred in bringing this Motion; 2) other costs [identify any other costs]; 3) that the Court Order [identify what specific remedies or other orders sought]; and such other relief as the Court deems necessary and appropriate.

(39) See Rule 3.830 and Rule 3.840 of the Florida Rules of Criminal Procedure. See also United Nat. Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1116 (9th Cir. 2001) ("Sua sponte sanctions will ordinarily be imposed only in situations that are akin to a contempt of court") (quoting Rule 11 adv. Committee notes, 1993 am.). But see Willy v. Coastal Corp., 503 U.S. 131, 139 (1992) (civil contempt orders have a different purpose "much than a Rule 11 sanction," the former to obtain compliance and the latter being designed to punish); see also Crepage v. City of Lauderhill, 774 So. 2d 61, 64 (Fla. 4th D.C.A. 2000) (discussing due process requirements and citing cases); see Mathews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990) ("[a]n award of fees under Rule 11 is more like a sanction for [criminal] contempt of court than a disposition on the merits or even an award of costs").

(40) Whenever appropriate, the judge may still forward the matter to The Florida Bar. See Rule 4-3.1, Rules Regulating the Florida Bar (discussing meritless claims).

(41) In two very recent cases, decided just as this article went to publication, the Florida Supreme Court held that fee sanctions awarded by a trial court under its inherent "contempt" power required the court to issue detailed findings after affording the potential sanctionees an opportunity to be heard. See Moakley v. Smallwood, 27 Fla. L. Weekly S175 (Feb 28, 2002); and Diaz v. Diaz, 27 Fla. L. Weekly S178 (Feb 28, 2002). Both of these cases were dissolution actions in which the trial court had ordered counsel to pay the opposing party's fees and costs for maintaining "frivolous" or "unnecessary" litigation in "bad faith." Despite acknowledging the fact that the state's trial courts have the inherent authority to impose such sanctions, the Supreme Court quashed the fee award in Moakley, and remanded Diaz, because neither of the trial judges in those cases had provided detailed and specific findings as to why the sanctions had been imposed, and because the judge in Moakley had not afforded the sanctioned attorney an opportunity to be heard. Quite interestingly, the court took the time to point out that neither movant in these cases had thought to seek attorneys' fees under [section] 57.105.

(42) IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION

CASE NO: JOHN DOE, Plaintiff, v. JOHN DOE, Defendant.

Order on Motion for Entitlement of Attorneys' Fees

THIS CAUSE came before the court on [the movant's] Motion to Determine Entitlement for Attorneys' Fees under Florida Statute [section] 57.105. After reviewing the pleadings and motions and otherwise hearing argument on the cause, it is ordered and adjudged and the court finds as follows:

[For orders on motions made under subsection (1)]

The standard now applicable under this statute is whether the party and counsel knew or should have known that any claim of defense asserted was (a) supported by the facts or (b) not supported by an application of "then existing" law. Florida Statute [section] 57.105(1) (2001); Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th D.C.A. 2001). If necessary, the court must also determine whether the claim was initially presented as a good faith argument for the extension, modification or refusal of existing law, or the establishment of new law, as applied to the material facts, with a reasonable expectation of success. [For orders and motions made under subsection 3] Florida Statute [section] 57.105(3) provides that a court shall award damages, including attorneys' fees, to a movant who is able to establish by a preponderance of the evidence, that the opposing party has taken any action in order to "purportedly delay" the proceedings.

In this case, the [movant] has established that

[if a motion was made under 57.105(1)] that [the challenged pleading or other paper] is/is not supported in law and/or fact.

[if a motion was made under 57.105(1)] that [the identified dilatory act] was/was not primarily taken for purposes of delay.

[If the Court is to grant the Motion, then add]

The Court finds the following sanctions appropriate [and/or awards the following damages]:

Accordingly, the Motion for Attorneys' Fees pursuant to Florida Statute [section] 57.105 [(1) and/or (3)] is hereby granted/denied.

DONE AND ORDERED, in Chambers, on this the -- th day of --, 20 -- in -- County, Florida.

CIRCUIT JUDGE

(43) FLA. STAT. [section] 57.105 (West Supp. 2000).

(44) If sufficient evidence is provided as to the reasonableness of the fees, a separate hearing to determine the amount of the fees may not be required. See State Farm Mut. Auto. Ins. Co. v. Bravender, 700 So. 2d 796, 797 (Fla. 4th D.C.A. 1997) (trial court assessed $300 of attorneys' fees against State Farm as a result of its discovery misconduct); First & Mid South Advisory Co. v. Alexander/Davis Properties, Inc., 400 So. 2d 113, 114 (Fla. 4th D.C.A. 1981) (trial court assessed $750 of attorneys' fees as sanction where party failed to answer interrogatories and produce material as to which they made no objection). There may, however, be circumstances where a separate evidentiary hearing is appropriate. See e.g., William Lehman Leasing Corp. v. Joseph, 575 So. 2d 614, 616 (Fla. 3d D.C.A. 2000) (ordered trial court to award fees under [section] 57.105 and to conduct an evidentiary hearing to determine the amount of fees to be assessed); Tri County Dev. Group, Inc. v. C.P.T. of South Fla, Inc., 740 So. 2d 573, 574 (Fla. 4th D.C.A. 1999) (the amount of attorneys' fees is to be determined in a separate evidentiary hearing); Davis v. Christmas, 705 So. 2d 38, 39 (Fla. 3d D.C.A. 1998) (directed the trial court to award attorneys' fees under [section] 57.105 and to conduct an evidentiary hearing to determine the amount of fees to be assessed).

(45) The legislature's reference to "other sanctions" could be construed to mean a number of things, including an award of taxable costs, the striking of pleadings or witnesses, and perhaps even a finding of contempt. Certainly the court here would have discretion to chose a suitable sanction. Interestingly, one court because of its "additional concerns regarding potential ethical violations" took the step of instructing the clerk of that court to provide a copy of its opinion to The Florida Bar. This language becomes more significant in cases where a pro se litigant has violated [section] 57.105.

(46) It would appear that in such a case, the losing party would have to pay the entire fee award. See Valdes v. Lovaas, 784 So. 2d 474, 474 (Fla. 3d D.C.A. 2001). See also Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 492 (Fla. 3d D.C.A. 2000) ("[I]n cases where an attorney has relied in good faith upon representations of his or her client, and thus seemingly pursued a valid legal claim based upon those representations, it makes sense that the client should be solely responsible for paying fees assessed as a sanction. This approach is logical because the basis of the lack of merit resulting in the sanction is solely attributable to the client's inaccurate representations of the facts in question. However, where the facts and established case law would clearly reflect the lack of a justiciable issue to a reasonable attorney, counsel also is culpable and must accept responsibility for sanction.")

(47) There will likely be some question as to whether this is actually a defense to sanctions or a substantive element of a claim under [section] 57.105 (i.e., the movant initially bearing the burden of persuasion that there was an absence of good faith in the losing party having raised the claim or defense). In such cases, the potential sanctionee should be prepared to show that the argument was made in "good faith," and that it was "reasonably certain" to prevail, to avoid the likely imposition of sanctions.

(48) It should be noted that this defense is only available with respect to representations made by the client, not witnesses, opposing counsel or any other third party.

(49) FLA. STAT. [section] 57.105(1) (West Supp. 2000).

(50) Id. See Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 492-93 (Fla. 3d D.C.A. 2000). In Visoly, the Third District stated, "The privilege to practice law requires attorneys to conduct themselves in a manner compatible with the administration of justice. While counsel does have an obligation to be faithful to their clients' lawful objectives, that obligation cannot be used to justify unprofessional conduct by elevating the perceived duty of zealous representation over all other duties." See also P.T.S. Trading Corp. v. Habie, 673 So. 2d 498, 500 (Fla. 4th D.C.A. 1996) (fees awarded for abuse of process, quoting Rules Regulating The Florida Bar, Rule 4-3.1). Counsel has a concurrent duty to the legal system and the public good to ensure appeals are pursued in good faith and are not frivolous. See FLA. R. PROF. RESP. 4-3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous...."); see also FLA. R. PROF. RESP. 4-3.2 ("A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client").

(51) Quite interestingly, the statute does not provide a safe harbor for a party from a sanction based upon his attorneys' assertion of an untenable legal claim. Presumably, the legislature believed that in such a case, the sanctioned litigant, who is stuck with the bill only because of the bad advice rendered by counsel, would have the remedy of a malpractice action against the unsanctioned attorney.

(52) Boca Burger, 788 So. 2d at 1057.

(53) Id.

(54) Id.

(55) The plaintiffs new counsel had filed the notice of appearance along with the amended complaint that morning. Id. at 1058.

(56) Id.

(57) Id.

(58) Id.

(59) Id.

(60) Id.

(61) Id.

(62) Id.

(63) Id.

(64) Id.

(65) Id. at 1059.

(66) Id.

(67) The Fourth District also noted that its prior decision in Life General (which had also been relied upon by defense counsel at the hearing) "does not even remotely suggest anything to the contrary except that at this stage, if discretion were truly involved, it would be an abuse of it not to permit the amendment." Boca Burger, 788 So. 2d 1055, 1058-59 (Fla. 4th D.C.A. 2001) (discussing Life General Security Insurance Co. v. Horal, 667 So. 2d 967 (Fla. 4th D.C.A. 1996)). See FLA. R. CIV. P. 1.100(a).

(68) See Rice v. Clement, 184 So. 2d 678, 680 (Fla. 4th D.C.A. 1966) ("[a]n original pleading is superseded by an amendment of it which does not express an intention to save any portion of it").

(69) Boca Burger, 788 So. 2d at 1061.

(70) It is interesting to note that in imposing sanctions under [section] 57.105, the Fourth District focused upon the arguments that counsel had voiced at the hearing.

(71) The Fourth District found defense counsel's "argument" that the Michigan Rules of Civil Procedure should apply (in lieu of a Florida rule) wholly unsupportable. Moreover, the court believed the tone and tenor of defense counsel's remarks intimated that there was some sort of impropriety in the way these "new" lawyers had appeared on the plaintiffs behalf, although he did not specifically articulate to the court just what that impropriety would be. As the Fourth District later noted, however, there was actually nothing improper with what the plaintiff and its lawyers had done, and in fact, the Fourth District concluded that it was defense counsel who had acted improperly by failing to inform the trial judge that the rules do expressly permit the appearance of additional attorneys without leave of court. Id. at 1062.

(72) Id. at 1061.

(73) Id.

(74) Id. The court also pointed out that it had not overlooked the defendant's argument that the plaintiffs claims were preempted by federal law. The court noted that (thus making any amendment to its complaint futile). The argument had been raised at the wrong time, under the auspices of the wrong motion. The plaintiff in Boca Burger had absolute right under Rule 1.190(a) to amend its initial complaint, so the trial court could not have been called upon to determine whether leave to amend should be denied due to the purported futility of a subsequent amendment. In any event, the Fourth District was not persuaded that the plaintiffs claims would even be preempted by federal law. 788 So.2d at 1061-62.

(75) FLA. R. PROF. RESP. 4-3.3(3) ("[a] lawyer shall not knowingly ... fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel....").

(76) Boca Burger, 788 So. 2d at 1062.

(77) The Fourth District was quite clear in its warning. The court hoped that "professionalism" and the duty of candor already expected of members of the Bar would be, under the new [section] 57.105, "unflinchingly enforced" so as to give full effect to the statute, and thus avoid the prospect that the new law would become the "empty vessel" its predecessor was. As Judge Gary Farmer quite eloquently stated:

"We do not accept the notion that outcomes should depend on who is the most powerful, most eloquent, best dressed, most devious and most persistent with the last word--or, for that matter, who is able to misdirect a judge. American civil justice is so designed that established rules of law will be applied and enforced to insure that justice be rightly done. Such a system is surely defective, however, if it is acceptable for lawyers to `suggest' a trial judge into applying a `rule' or a `discretion' that they know--or should know--is contrary to existing law. Even if it hurts the strategy and tactics of a party's counsel, even if it prepares the way for an adverse ruling, even though the adversary has himself failed to cite the correct law, the lawyer is required to disclose law favoring his adversary when the court is obviously under an erroneous impression as to the law's requirements.

"Much is written about `professionalism' today. It is on the agenda at every lawyer and judicial symposium or continuing education conference, and our professional journals are filled with pleas for greater attention to punctilious conduct in all things. But today's case requires that we pass from exhortation to the resolution of a concrete issue. For the disciplinary rule of candor is the instrument of professionalism's demand. If in the circumstances of this case the rule of candor cannot be unflinchingly enforced under this 21st century version of [section] 57.105, then this freshly cast legislation is a vessel as empty as its predecessor was." 788 So. 2d at 1062.

It is interesting to note that in Boca Burger, the sanctionees had actually prevailed in the trial court, but then were sanctioned on appeal for the arguments they had used to win below.

As the Third District stated in Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 488 (Fla. 3d D.C.A. 2000): "The privilege to practice law requires attorneys to conduct themselves in a manner compatible with the administration of justice. While counsel does have an obligation to be faithful to their client's lawful objectives, that obligation cannot be used to justify unprofessional conduct by elevating the perceived duty of zealous representation over all other duties ... [c]ounsel has a concurrent duty to the legal system and the public good to ensure appeals are pursued in good faith and are not frivolous.

"Therefore, when an attorney is solicited to pursue an appeal that is devoid of merit, he or she has a duty to advise the client of the potential for sanctions, and that it would be unethical for the attorney to go forward with the frivolous appellate proceedings. As officers of the court and members of the bar, attorneys have an ethical and professional responsibility to withdraw from representation rather than pursue a frivolous appeal.

"Since unprofessionalism can exist only to the extent that it is tolerated by the courts, we emphasize that attorneys' fees will be assessed as a sanction against appellate counsel to deter members of the bar from pursuing appeals which clearly lack merit. Our further purpose is to achieve the just result of compensating the nonappealing party for the expense of having to defend spurious appeals, and to preserve the appellate calendar for cases truly worthy of consideration."

Gary S. Gaffney is an appellate attorney and legal writer and editor whose practice includes all of Florida and most federal courts. Mr. Gaffney received his B.A. in history, with high honors, from Florida International University, and his J.D. from Nova Southeastern University where he served as editor-in-chief of the Law Review. He is board certified by The Florida Bar in real estate law, a licensed Florida real estate broker, and teaches as an adjunct professor at Florida Atlantic University. Mr. Gaffney currently chairs the Editorial Board of the Florida Bar Journal and News.

Scott A. Mager is the managing partner of Mager & Associates, P.A., a Ft. Lauderdale firm which handles appeals and commercial litigation matters in all state and federal courts. He received his B.A. in criminal justice from the University of Florida, and his J.D. from Nova Southeastern University, where he served as president of Moot Court. Mr. Mager has written and lectured extensively on a variety of trial and appellate topics.
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Author:Gaffney, Gary S.; Mager, Scott A.
Publication:Florida Bar Journal
Geographic Code:1U5FL
Date:Apr 1, 2002
Words:11739
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