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The post below was published on Tuesday, December 21st, 2010 at 9:04 AM.

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Certified Question: Attorney Negligence

Assume an attorney’s negligence causes the attorney and the client to miss a trial date. The other side prepares and attends, only to have the matter continued because one side is absent.

Can the trial court remedy the other side’s loss by sanctioning the attorney? That is essentially what happened in this case. The Fourth District reversed, holding that controlling case law requires a finding of bad faith conduct before a trial court may exercise its inherent authority to sanction counsel.

The district court expressed concern that the result was unfair. So the court certified the following to the Florida Supreme Court as a question of great public importance, essentially inviting the high court to expand the bad faith requirement to encompass certain forms of negligence:

DOES THE DEFINITION OF “BAD FAITH CONDUCT” IN MOAKLEY V. SMALLWOOD, 826 SO. 2D 221 (FLA. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCURRENCE OF ATTORNEYS’ FEES?

The change the court invites seems extraordinary.

In Florida, all attorneys practice law subject to the authority of the state supreme court. Our high court’s authority extends throughout the judiciary and, consistent with common law principles regarding contempt, empowers all judges to sanction misconduct by those before the court, including counsel. This authority to sanction inheres in the judiciary and is to be rarely exercised. It exists to protect the integrity of the court and the judicial system. Disregarding the court’s authority warrants punishment.

The Fourth District does not appear concerned with affronts to judicial authority. The court appears concerned with remedying injury an attorney negligently inflicts on another party during the course of litigation. Notably, the party seeking sanctions in the case requested attorney’s fees to prepare for and attend trial and the party’s own lost wages for the day. The trial court awarded attorney’s fees and the lost wages.

In any other area of life, the legal system would examine such conduct under the tort system.

Expanding the sanction authority to include “reckless misconduct” should, at least in theory, limit newly actionable conduct to the realm of intentional torts. But if a shift is made from protecting the court’s integrity to protecting litigants’ economic interests, one might wonder why the line should be drawn at reckless acts. One might also wonder how solid a line a “reckless” standard would offer.

Regardless of what the high court does, I look forward to the debate. It should be interesting. Perhaps the court will invite The Florida Bar to weigh in with its views on attorney regulation.

















































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