Three lawyers learned an expensive lesson about “virtual” and ethical lawyering. In Hagood v. Wells Fargo, 38 Fla. L. Weekly D1099 (Fla. 5th DCA 2013), the lawyers of “KEL” held a winning hand, but came up losers. In Hagood v. Wells Fargo, Case No. 5D12-2016 (Fla. 5th DCA 2013), the lawyers were sanctioned.
When Hagood was served with a lawsuit he hired Kaufman Englett and Lynd Attorneys, LLLPLC, who promptly filed an Answer and Affirmative Defenses. When the case dragged on, the bank, Wells Fargo, filed for summary judgment. Unfortunately, the KEL lawyer, “failed to appear at a hearing on Appellee’s motion for summary judgment, the court entered summary final judgment of foreclosure. Mr. Montequin, [the KEL lawyer,] filed a motion for rehearing and to vacate the judgment based on excusable neglect. He attached to the motion his own affidavit and those of KEL staff members, attesting to the fact that the notice of hearing had been received but not calendared due to a clerical error. He also alleged a meritorious defense based on a previously filed answer and defenses. The court held a hearing on the motion and subsequently denied it without explanation.”
KEL had a winning argument. They should have challenged the summary judgment on the basis that the lower court erred in granting the judgment in the face of the answer and defenses on file. If the file shows conflicted facts, you don’t need to show up to the hearing. The judge cannot grant a judgment even if the lawyer was not there. There was another winner. The trial court abused its discretion in denying the request for relief from judgment based on excusable neglect. However, that is not what happened. KEL filed a brief based on false statements. As the court stated, “Appellant’s initial brief, prepared by three KEL lawyers, asserts that Appellant was not given notice of the hearing, an assertion that the record conclusively refutes.” Ouch.
The KEL lawyer did not attend the hearing because the staff goofed. He filed affidavits. Even though KEP admitted to the trial court judge that they had notice, the brief they filed, “repeatedly asserts the total lack of notice—a fact that Appellant represented was ‘uncontroverted.’” This brief was ripped to shreds by Roy A. Diaz and Ryan T. Cox of SHD Legal Group, P.A. The responding lawyers used that old trick, citations to the record. As the court said, “Appellee refuted Appellant’s lack of notice contention by directing our attention to the affidavits in the record on appeal.”
Unfortunately for poor Mr. Hapgood, the winning argument did not show up until the Reply Brief. There is an old rule of practice. An issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief. The court said, “we are constrained to affirm without addressing the merits of Appellant’s alternative argument.” But wait, there’s more.
“The quality of the legal work performed by KEL’s attorneys in this case is
disturbing. It resulted in a waste of judicial resources and, perhaps, an injustice to the litigants. At a minimum, it increased the cost of the litigation and the time necessary to conclude it. The three lawyers who represented Appellant on appeal are not novices. In the aggregate they have over sixty years of experience as members of The Florida Bar. The least experienced of the three, Ms. Domenech, appeared for oral argument and attempted to field the questions from the panel. She informed the Court that all three attorneys participated equally in the preparation of the briefs, but that Mr. Withers, the most experienced of the group, was the “lead” attorney. He signed the briefs on behalf of all three attorneys and the firm. No satisfactory explanation was proffered by Ms. Domenech at oral argument why this Court should not impose sanctions. Before we impose sanctions, however, it is appropriate that all three attorneys have an opportunity to address the Court’s concerns. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.410, each attorney for Appellant named on the briefs shall, within
10 days, show cause in writing why sanctions should not be imposed.” Double ouch.
Friday, the other shoe dropped. In a second opinion the District Court sanctioned the three lawyers. “Mr. Lynd asserts that his name was placed on the briefs because he is a partner at Kaufman, Englett & Lynd, PLLC (“KEL”), and he might have been needed at oral argument. He did not review the briefs or work on the case. Ms. Domenech asserts that, working remotely as a part-time employee of KEL, she simply drafted the initial brief at Mr. Withers’ request, using the trial lawyer’s electronic notes. She did not review the record on appeal or the firm’s physical file, and she was not aware that the brief’s contents were false. When she submitted the initial brief for Mr. Withers’ review, she asserts that she “made it clear” that she had not reviewed the motion for summary judgment or motion for rehearing. Due to a gap in employment, Ms. Domenech did not see the answer brief or participate in the preparation of the reply brief. Inexplicably, although she handled the oral argument for the firm, she asserts that it was not until after oral argument that she realized her “draft” initial brief had been mistakenly filed with the Court.”
All three lawyers were admonished and sanctioned.
There is much to learn from here. First, working remotely is not a substitute for the old-fashioned review of the file. Had Ms. Domenech looked at the file she would have seen the winning argument, and known that the theory she was advancing was factually wrong. Second, if you write the wrong argument, there is a remedy. Ask to redo your brief. Write a good brief, staple it to a motion and tell the court you wrote a stupid brief and ask them to replace it with the good one you stapled to the motion. There is a hint in the opinion that this tactic might have worked. “Inexplicably,” says the District Court, “rather than attempt to correct the initial brief,” the Appellant raised the issues poorly in the Reply Brief.
The final lesson is don’t put your name on a brief unless you know the record, the issues presented and are fully versed on the facts of the case. “This Court also admonishes all counsel that each attorney of record is responsible for the content of the entire document when his or her name appears on the document. Each attorney who appears in a proceeding and authorizes his or her name to be affixed to an appellate brief or other pleading cannot avoid responsibility for the content of the brief by later claiming limited or no involvement in its preparation.”