Tom Appeals Blog

News and Observations About Law and Society

"Do all the good you can. By all the means you can. In all the ways you can. In all the places you can. At all the times you can. To all the people you can. As long as ever you can." - John Wesley

Florida Supreme Court Disciplines 24 Lawyers

Posted: May 3, 2016 Filed under: Uncategorized

According to THIS press release, the Supreme Court of Florida recently disciplined 24 lawyers — “disbarring four, revoking the licenses of four, suspending nine and publicly reprimanding seven. Five attorneys were also placed on probation.”

Florida Supreme Court overturns mandatory attorney’s fee schedule for workers’ compensation cases

Posted: April 28, 2016 Filed under: Case Law, Law-Related News

By a vote of 5 to 2, the Supreme Court of Florida today declared the  mandatory fee schedule in section 440.34, Florida Statutes, unconstitutional in Castellanos v. Next Door Company

This case asks us to evaluate the constitutionality of the mandatory fee schedule in section 440.34, Florida Statutes (2009), which eliminates the requirement of a reasonable attorney’s fee to the successful claimant. Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process.

Justices Canady and Polston dissented. Justice Canady began by stating “the majority fail[ed] to directly address the actual policy of the statute,” which he described as a “determination by the Legislature that there should be a reasonable relationship between the value of the benefits obtained in litigating a workers’ compensation claim and the amount of attorney’s fees the employer or carrier is required to pay to the claimant.” Justice Polston believes the majority opinion “has rewritten the statute to avoid the standard governing facial challenges.”

The opinion is available HERE.

Court Continues Trend of Enhancing Proposed Discipline

Posted: April 26, 2016 Filed under: Commentary, Law-Related News

With yesterday’s order in the case of Seminole County Judge Jerri Collins, The Supreme Court of Florida continues its trend of rejecting proposed discipline of lawyers and judges that the Court views as too light.
[T]he Court rejects the Stipulation and disapproves the proposed sanction. In addition to the public reprimand agreed to in the Stipulation, the Court would require successful completion of an anger management course and attendance at the domestic violence course offered during Phase II of the Florida Judicial College. Should the parties agree to these terms, a revised consent judgment shall be filed with the Court within thirty days of the date of this order.
If the parties do not agree to these terms, the parties must inform the Court within thirty days that they have not reached an agreement. In that event, this case (SC16-548) will be returned for a hearing before the Florida Judicial Qualifications Commission.
Read the Florida Supreme Court’s order HERE.

Florida Murder Convictions Overturned Because of Illegally Obtained Confession

Posted: April 21, 2016 Filed under: Case Law

Today, in State v. McAdams, No. 14-826 (Fla. April 21, 2016), the Supreme Court of Florida held:

[W]hen a person is questioned in a location that is not open to the public, and an attorney retained on his or her behalf appears at the location, the Due Process Clause of the Florida Constitution requires that law enforcement notify the person with regard to the presence and purpose of the attorney, regardless of whether he or she is in custody.

Two justices concurred in part and dissented in part because the majority applied the rule to voluntary interactions with law enforcement officers. The concurring justices would limit the rule to confessions obtained only after the suspect is in custody.

According to the opinion, “compelling evidence of McAdams’s guilt was presented to the jury through his confession, in which he admitted that after being berated by his estranged wife and her new boyfriend at the Palomino Lake Drive residence, he became outraged, retrieved a gun from outside the residence, fatally shot them, buried the bodies in a rural area, and disposed of the weapon.” Because the unlawfully obtained confession contributed to the convictions, the court overturned the convictions.

New York Appellate Court: No visit, no child support

Posted: September 18, 2015 Filed under: Uncategorized

THIS article tells of a New York court that upheld a 13 year old’s right to not visit his father but that also held the father should not have to pay child support.

Tom Presents…

Posted: April 30, 2014 Filed under: Uncategorized

Today marks the fifth continuing legal education presentation I’ve been part of making over the past eight months – and the fifth distinct topic I’ve addressed.

Prior presentations addressed minimum wage and overtime liability to employees classified as volunteers and unpaid interns; the economic loss rule in Florida; ethics and professionalism consideration in the use of cloud computing by lawyers; and a look inside Florida’s Fifth District Court of Appeal.

Today’s presentation is part of the Orange County Bar Association Appellate Practice Committee’s seminar about “Advanced Legal Writing in a Paperless, Digital Age.” I will be demonstrating the use of freely available legal resources in legal papers through hyperlinks. Officially, the presentation is called “Hyper and (Mostly) Free: Useful Electronic Tools for Persuasive Writing.”

Supreme Court Broadens Police Power to Search

Posted: April 23, 2014 Filed under: Uncategorized

Law enforcement officers now have wider latitude in conducting searches on the basis of anonymous tips. Navarette v. California, No. 12–9490 (April 22, 2014) divided the U.S. Supreme Court’s two most conservative justices, while the majority opinion was joined by one of the Court’s liberals, Justice Breyer. Justice Thomas wrote the majority opinion, and Justice Scalia wrote the dissent. NPR wrote about the Court’s decision HERE.

Florida Civil Rights Act Bans Pregnancy Discrimination

Posted: April 17, 2014 Filed under: Case Law, Employment Law

The notion that laws banning sex discrimination also ban pregnancy discrimination seems obvious to many. Others, however, note that gender and pregnancy are not the same thing and, therefore, that language prohibiting gender discrimination prohibits just that and not pregnancy discrimination. After all, The United States Supreme Court held in 1976 that discrimination on the basis of pregnancy was not sex discrimination. General Electric Company v. Gilbert, 429 U.S. 125 (1976). (Note: Following the Gilbert decision, Congress amended federal anti-discrimination laws to specifically make pregnancy discrimination illegal.)

Today, in Delva v. The Continental Group, Inc., No. SC12-2315 (Fla. April 17, 2014), the Florida Supreme Court declared that gender discrimination includes pregnancy discrimination under Florida state law because pregnancy “is a natural condition and primary characteristic unique to the female sex.”

In reaching its 6-1 decision, the Florida court looked to prior decisions by the supreme courts of Massachusetts and Minnesota. The Massachusetts court determined in 1978 that a “classification which relies on pregnancy as the determinative criterion is a distinction based on sex” and is, therefore, illegal. Similarly, the Minnesota court concluded a year later that “[a] woman should be no more burdened than a man if she chooses to combine the roles of parent and employee, simply because the woman must bear the child.”

Before Delva, state and federal courts in Florida were divided over the question of whether the ban against gender discrimination also banned pregnancy discrimination. In overturning a decision of the Third District Court of Appeal holding that gender did not include pregnancy, the Supreme Court of Florida finally settled an issue that had been festering for years:  “[A] liberal construction of the [Florida Civil Rights Act] to effectuate its purposes, as specifically provided for in the statute itself, makes clear that discrimination based on pregnancy, a natural condition unique to females and a primary characteristic of the female sex, is subsumed within the prohibition in the FCRA against sex discrimination in employment practices.”

Incivility Yields Two Year Suspension

Posted: March 6, 2014 Filed under: Commentary, Law-Related News

THIS article for the Ethics and Professionalism Committee of the ABA’s Section of Litigation uses recent decisions by the Supreme Court of Florida to illustrate how lapses in professionalism — which were once thought to be gauche but not punishable — are increasingly providing the basis for disciplinary action. Lawyers work too hard to earn the privilege of practicing law to lose it as a consequence of being a cad.

I have represented and assisted lawyers facing investigation and discipline. The process is neither enjoyable nor quick. It can also be expensive. So, if bar disciplinary counsel knock on your door in Florida or Kansas, let’s talk.

Florida Supreme Court Punts to Legislature

Posted: March 6, 2014 Filed under: Case Law

Today, the Supreme Court of Florida unanimously ruled that applicants seeking admission to The Florida Bar must “demonstrate that they are legally present in the United States” and that unauthorized immigrants are ineligible for admission. The court grounded its ruling in federal law.

In a concurring opinion, two justices emphasized that “the Florida Legislature is in the unique position to act on this integral policy question and remedy the inequities that the unfortunate decision of this Court will bring to bear.” Justice Jorge Labarga, himself an immigrant, compared his family’s escape from a communist regime to the bar applicant’s escape from poverty, then wrote that he could not justify the distinctions between the two families insofar as admission to The Florida Bar is concerned. Still, Justice Labarga reluctantly concurred with the other justices because existing federal and state law required him to do so.

The case is Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to The Florida Bar.

Admitted: Florida, Kansas, New Mexico (inactive)