CIVILITY IN CIVIL PRACTICECIVILITY IN CIVIL PRACTICEThomas S. Biggs Inns of CourtThomas S. Biggs Inns of Court

April 15, 2008April 15, 2008

Judge Daniel Monaco Judge Daniel Monaco Judge Vince MurphyJudge Vince MurphyBradley S. Donnelly Bradley S. Donnelly

Maria I. BarbosaMaria I. BarbosaDavid L. Dawson David L. Dawson

Fitzgerald A. FraterFitzgerald A. FraterJessica I. HorowitzJessica I. Horowitz

Angela M. MillerAngela M. MillerPatrick G. WhitePatrick G. WhiteChuck ZundelChuck Zundel

PROFESSIONALISM’S NEW PROFESSIONALISM’S NEW FOCUSFOCUS

Bradley S. DonnellyBradley S. Donnelly

The Henry Latimer Center for The Henry Latimer Center for ProfessionalismProfessionalism

Definition of ProfessionalismDefinition of Professionalism– As a lawyer, I will aspire . . . to achieve the As a lawyer, I will aspire . . . to achieve the

excellence of our craft . . . that permit[s] me to excellence of our craft . . . that permit[s] me to be the moral voice of clients to the public – in be the moral voice of clients to the public – in advocacy, while being the moral voice of the advocacy, while being the moral voice of the public to clients in counseling.public to clients in counseling.

OATH OF ADMISSION TO OATH OF ADMISSION TO THE FLORIDA BARTHE FLORIDA BAR

THE GENERAL PRINCIPLES WHICH SHOULD EVER THE GENERAL PRINCIPLES WHICH SHOULD EVER CONTROL THE LAWYER IN THE PRACTICE OF THE CONTROL THE LAWYER IN THE PRACTICE OF THE LEGAL PROFESSION ARE CLEARLY SET FORTH IN LEGAL PROFESSION ARE CLEARLY SET FORTH IN THE FOLOWING OATH OF ADMISSION TO THE BAR, THE FOLOWING OATH OF ADMISSION TO THE BAR, WHICH THE LAWYER IS SWORN ON ADMISSION TO WHICH THE LAWYER IS SWORN ON ADMISSION TO OBEY AND FOR THE WILLFUL VIOLATION TO WHICH OBEY AND FOR THE WILLFUL VIOLATION TO WHICH

DISBARMENT MAY BE HAD.DISBARMENT MAY BE HAD.

I will support the Constitution of the United States and the Constitution I will support the Constitution of the United States and the Constitution of the State of Florida;of the State of Florida;

I will maintain the respect due to courts of justice and judicial officers;I will maintain the respect due to courts of justice and judicial officers;I will not counsel or maintain any suit or proceedings which shall I will not counsel or maintain any suit or proceedings which shall

appear to me to be unjust, nor any defense except such as I believe appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;to be honestly debatable under the law of the land;

I will employ for the purpose of maintaining the causes confided to me I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false never seek to mislead the judge or jury by any artifice or false statement of fact or law;statement of fact or law;

I will maintain the confidence and preserve inviolate the secrets of my I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval;business except from them or with their knowledge and approval;

I will abstain from all offensive personality and advance no fact I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;required by the justice of the cause with which I am charged;

I will never reject, from any consideration personal to myself, the cause I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre of the defenseless or oppressed, or delay anyone's cause for lucre or malice. So help me God.or malice. So help me God.

I DO SOLEMNLY SWEAR:I DO SOLEMNLY SWEAR:

CREED OF PROFESSIONALISMCREED OF PROFESSIONALISMI revere the law, the judicial system, and the legal profession and will at all I revere the law, the judicial system, and the legal profession and will at all

times in my professional and private lives uphold the dignity and esteem times in my professional and private lives uphold the dignity and esteem of each.of each.

I will further my profession’s devotion to public service and to the public I will further my profession’s devotion to public service and to the public good.good.

I will strictly adhere to the spirit as well as the letter of my profession’s code I will strictly adhere to the spirit as well as the letter of my profession’s code of ethics, to the extent that the law permits and will at all times be guided of ethics, to the extent that the law permits and will at all times be guided by a fundamental sense of honor, integrity, and fair play.by a fundamental sense of honor, integrity, and fair play.

I will not knowingly misstate, distort, or improperly exaggerate any fact or I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will not improperly permit my silence or inaction to mislead opinion and will not improperly permit my silence or inaction to mislead anyone.anyone.

I will conduct myself to assure the just, speedy and inexpensive I will conduct myself to assure the just, speedy and inexpensive determination of every action and resolution of every controversy.determination of every action and resolution of every controversy.

I will abstain from all rude, disruptive, disrespectful, and abusive behavior I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy.and will at all times act with dignity, decency, and courtesy.

I will respect the time and commitments of others.I will respect the time and commitments of others.I will be diligent and punctual in communicating with others and in fulfilling I will be diligent and punctual in communicating with others and in fulfilling

commitments.commitments.I will exercise independent judgment and will not be governed by a client’s ill I will exercise independent judgment and will not be governed by a client’s ill

will or deceit.will or deceit.My word is my bond.My word is my bond.

Rules of Professional ConductRules of Professional ConductPreamble: A Lawyer’s ResponsibilitiesPreamble: A Lawyer’s Responsibilities

Lawyers are officers of the court and they are Lawyers are officers of the court and they are responsible to the judiciary for the propriety of their responsible to the judiciary for the propriety of their professional activities.professional activities.Within this context, the legal profession has been Within this context, the legal profession has been granted powers of self-government. Self-regulation granted powers of self-government. Self-regulation helps maintain the legal profession’s independence from helps maintain the legal profession’s independence from undue government domination.undue government domination.Thus, every lawyer is responsible for observance of the Thus, every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. in securing their observance by other lawyers. Neglect of these responsibilities compromises the Neglect of these responsibilities compromises the independence of the profession and the public interest it independence of the profession and the public interest it serves.serves.

Code of Judicial ConductCode of Judicial Conduct

Canon 3. A Judge Shall Perform the Duties of Canon 3. A Judge Shall Perform the Duties of Judicial Office Impartially and DiligentlyJudicial Office Impartially and Diligently

3(B)(4) A judge shall be patient, dignified, and 3(B)(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, courteous to litigants, jurors, witnesses, lawyers, and others whom the judge deals in an official and others whom the judge deals in an official capacity, and shall require similar conduct of capacity, and shall require similar conduct of lawyers . . . and others subject to the judge’s lawyers . . . and others subject to the judge’s direction and control.direction and control.

DEPOSITION ABUSEDEPOSITION ABUSE

Fitzgerald A. FraterFitzgerald A. Frater

Angela M. MillerAngela M. Miller

David L. DawsonDavid L. Dawson

DEPOSITION ABUSESDEPOSITION ABUSESGOING TOO FARGOING TOO FAR

Hostile, uncivil and vulgar conductHostile, uncivil and vulgar conduct– Henry John Martocci demeaned opposing party and her counsel, Diana Henry John Martocci demeaned opposing party and her counsel, Diana

Figueroa, belittling and humiliating her, with comments that she did not know the Figueroa, belittling and humiliating her, with comments that she did not know the law or the rules of procedure, that she needed to go back to law school, that she law or the rules of procedure, that she needed to go back to law school, that she was a "stupid idiot“ and a "bush leaguer“, that depositions were not conducted was a "stupid idiot“ and a "bush leaguer“, that depositions were not conducted according to "girl's rules“, and that her client was a "nut case." according to "girl's rules“, and that her client was a "nut case."

– Mr. Martocci also made demeaning facial gestures and stuck out his tongue at Mr. Martocci also made demeaning facial gestures and stuck out his tongue at the opposing party and Ms. Figueroathe opposing party and Ms. Figueroa

– Martocci received a reprimand and probation. Martocci received a reprimand and probation. Florida Bar v. Martocci,Florida Bar v. Martocci, 791 So. 2d 791 So. 2d 1074-76 (Fla. 2001).1074-76 (Fla. 2001).

Impeding, delaying and frustrating fair examinationImpeding, delaying and frustrating fair examination

Failure to answer and intentionally evasive answersFailure to answer and intentionally evasive answers

I will abstain from all rude, disruptive, disrespectful, and I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, abusive behavior and will at all times act with dignity,

decency, and courtesy.decency, and courtesy.

FEDERAL RULES OF CIVIL FEDERAL RULES OF CIVIL PROCEDUREPROCEDURE

Fed.R.Civ.P. Rule 30Fed.R.Civ.P. Rule 30– 2000 Amendment2000 Amendment– Rule 30(d)(3)Rule 30(d)(3)

If the court finds that any impediment, delay, or other conduct If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it MAY has frustrated the fair examination of the deponent, it MAY impose upon the persons responsible an appropriate impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.incurred by any parties as a result thereof.““Paragraph (3) …authorizes the court to impose an Paragraph (3) …authorizes the court to impose an appropriate sanction on any person responsible for an appropriate sanction on any person responsible for an impediment that frustrated the fair examination of the impediment that frustrated the fair examination of the deponent. This could include the deponent, any party, or deponent. This could include the deponent, any party, or ANY OTHER PERSON involved in the deposition.”ANY OTHER PERSON involved in the deposition.”

FEDERAL RULES OF CIVIL FEDERAL RULES OF CIVIL PROCEDUREPROCEDURE

Fed.R.Civ.P. Rule 30Fed.R.Civ.P. Rule 30– Rule 30(d)(4)Rule 30(d)(4)

At any time during a deposition, on motion of a party or of the At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being deponent and upon a showing that the examination is being conducted in bad faith or in such manner as conducted in bad faith or in such manner as unreasonablyunreasonably to annoy, embarrass, or oppress the deponent or party, the to annoy, embarrass, or oppress the deponent or party, the court…may order the officer conducting the examination to court…may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, in Rule 26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court it may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition must objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.of expenses incurred in relation to the motion.

LOCAL RULES REGARDING LOCAL RULES REGARDING DEPOSITION ABUSESDEPOSITION ABUSES

Middle District of Florida- NoneMiddle District of Florida- None

Northern District of Florida- NoneNorthern District of Florida- None

Southern District of Florida- Southern District of Florida- Rule 30– ““The purpose of this rule is to curb unprofessional The purpose of this rule is to curb unprofessional

conduct at depositions.”conduct at depositions.”– Sanctions for Abusive Deposition ConductSanctions for Abusive Deposition Conduct

The court, if it anticipates deposition abuse, may order that The court, if it anticipates deposition abuse, may order that any deposition be taken at the courthouse or special any deposition be taken at the courthouse or special master’s office so that, at the request of any party, witness, master’s office so that, at the request of any party, witness, or counsel, any dispute may be heard and decided or counsel, any dispute may be heard and decided immediately by the court or special master. Rule 30.1Cimmediately by the court or special master. Rule 30.1C

Florida Rules of Civil ProcedureFlorida Rules of Civil Procedure

Rule 1.310(c) “…Any objection during a deposition shall Rule 1.310(c) “…Any objection during a deposition shall be stated concisely and in a nonargumentative and non-be stated concisely and in a nonargumentative and non-suggestive manner…”suggestive manner…”Rule 1.310(d) “At any time during the taking of the Rule 1.310(d) “At any time during the taking of the deposition, on motion of a party or of the deponent and deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted upon a showing that the examination is being conducted in bad faith or in such manner as in bad faith or in such manner as unreasonablyunreasonably to to annoy, embarrass, or oppress the deponent or party…annoy, embarrass, or oppress the deponent or party…the court…may order the officer conducting the the court…may order the officer conducting the examination to cease forthwith…or may limit the scope examination to cease forthwith…or may limit the scope and manner of the taking of the deposition…” (emphasis and manner of the taking of the deposition…” (emphasis added)added)

Florida Rules of Professional Florida Rules of Professional ConductConduct

None regarding deposition abusesNone regarding deposition abuses

2020thth Judicial Circuit Rules Judicial Circuit Rules

Adopted Standards of Professional Adopted Standards of Professional Courtesy and Conduct on May 8, 2000Courtesy and Conduct on May 8, 2000

Established Peer Review ProgramEstablished Peer Review Program

Designed to supplement and not supplant Designed to supplement and not supplant the Standards of Courtroom Decorum set the Standards of Courtroom Decorum set forth in Administrative Order 2.13forth in Administrative Order 2.13

DEPOSITION ABUSESDEPOSITION ABUSESNOT GOING FAR ENOUGHNOT GOING FAR ENOUGH

I WILL EXERCISE INDEPENDENT I WILL EXERCISE INDEPENDENT JUDGMENT AND WILL NOT BE JUDGMENT AND WILL NOT BE GOVERNED BY A CLIENT’S ILL WILL GOVERNED BY A CLIENT’S ILL WILL OR DECEIT.OR DECEIT.

I WILL NOT KNOWINGLY MISSATE, I WILL NOT KNOWINGLY MISSATE, DISTORT, OR IMPROPERLY DISTORT, OR IMPROPERLY EXAGGERATE ANY FACT OR EXAGGERATE ANY FACT OR OPINION AND WILL NOT OPINION AND WILL NOT IMPROPERLY PERMIT MY SILENCE IMPROPERLY PERMIT MY SILENCE OR INACTION TO MISLEAD ANYONE.OR INACTION TO MISLEAD ANYONE.

SUBSTANCE ABUSESUBSTANCE ABUSE

Patrick G. WhitePatrick G. White

SUBSTANCE ABUSESUBSTANCE ABUSEI revere the law, the judicial system, and the legal profession and will at I revere the law, the judicial system, and the legal profession and will at all times in my professional and private lives uphold the dignity and all times in my professional and private lives uphold the dignity and esteem of each.esteem of each.

I will maintain the respect due to courts of justice and judicial officers.I will maintain the respect due to courts of justice and judicial officers.

I will respect the time and commitments of others.I will respect the time and commitments of others.

I will be diligent and punctual in communicating with others and in I will be diligent and punctual in communicating with others and in fulfilling commitmentsfulfilling commitments

Las Vegas Lawyer-mistrial by Las Vegas Lawyer-mistrial by denial (and proof) of intoxication denial (and proof) of intoxication

The Morning Lawyer*The Morning Lawyer*

* * “The Morning Lawyer”“The Morning Lawyer” materials were used with materials were used with permission of The Florida Bar, and may be permission of The Florida Bar, and may be obtained for future presentations from same.obtained for future presentations from same.

**Rules cited therein are the Rules Regulating the **Rules cited therein are the Rules Regulating the Florida Bar, Rules of Professional Conduct.Florida Bar, Rules of Professional Conduct.

Referrals to Referrals to Florida Lawyers’ AssistanceFlorida Lawyers’ Assistance, , Inc., are also appropriate for cases of Inc., are also appropriate for cases of suspected abuse.suspected abuse.

See, Turn to F.L.A. for help -View From The See, Turn to F.L.A. for help -View From The Bench, Bench, by Judge Christine Greider, Adverse by Judge Christine Greider, Adverse Witness, April 2008, page six (“substance Witness, April 2008, page six (“substance abuse, compulsive behavior and psychological abuse, compulsive behavior and psychological problems are treatable illnesses rather than problems are treatable illnesses rather than moral issues”). www.fla-lap.org 800-282-8981moral issues”). www.fla-lap.org 800-282-8981

Next three slides provided courtesy of the Next three slides provided courtesy of the Florida Bar present the article: “War on Florida Bar present the article: “War on Addiction,”, also found at: Addiction,”, also found at: www.newsweek.com/id/80461www.newsweek.com/id/80461

War on AddictionWar on Addiction

War on addiction (cont’d.)War on addiction (cont’d.)

War on addiction (cont’d.)War on addiction (cont’d.)

METADATA AND ITS METADATA AND ITS INADVERTENT DISCLOSUREINADVERTENT DISCLOSURE

Maria I. BarbosaMaria I. Barbosa

METADATA: THE FUTURE IMPACT OF INVISIBLE DATA ON METADATA: THE FUTURE IMPACT OF INVISIBLE DATA ON E-DISCOVERY IN FLORIDA E-DISCOVERY IN FLORIDA

by Nicole O’Nealby Nicole O’NealDecember, 2007December, 2007

Volume 81, No. 11Volume 81, No. 11

Metadata: A Brief DefinitionMetadata: A Brief Definition– The official definition of metadata is “information The official definition of metadata is “information

about a particular data set which describes how, about a particular data set which describes how, when, and by whom it was collected, created, when, and by whom it was collected, created, accessed, modified and how it is formatted.”accessed, modified and how it is formatted.”

– Metadata can routinely reveal the original authors of Metadata can routinely reveal the original authors of the document, the firm name, the computer name of the document, the firm name, the computer name of the drafting computer, the file location on the drafting the drafting computer, the file location on the drafting computer, document revisions and versions, file computer, document revisions and versions, file properties, hidden text, hyperlinks, initials of the properties, hidden text, hyperlinks, initials of the drafter, network or server name of the firm, undo/redo drafter, network or server name of the firm, undo/redo history, comments on the document, and tracked history, comments on the document, and tracked changes.changes.

Ethics Opinion 06-2Ethics Opinion 06-2

The Florida Bar implemented Ethics Opinion 06-2 on September 15, 2006 in response to The Florida Bar implemented Ethics Opinion 06-2 on September 15, 2006 in response to the number of questions regarding metadata. The opinion outlines the ethical duties the number of questions regarding metadata. The opinion outlines the ethical duties of lawyers when they send and receive electronic documents from other lawyers in of lawyers when they send and receive electronic documents from other lawyers in the course of representing their clients. The opinion states: the course of representing their clients. The opinion states:

(1)(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in information, including information contained in metadata, that may be included in such electronic communications.such electronic communications.

(2)(2) It is the recipient lawyer’s concomitant obligation, upon receiving an electronic It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender’s client that the recipient information relating to the representation of the sender’s client that the recipient knows or should know is not intended for the recipient. Any such metadata is to be knows or should know is not intended for the recipient. Any such metadata is to be considered by the receiving lawyer as confidential information which the sending considered by the receiving lawyer as confidential information which the sending lawyer did not intend to transmit. See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida lawyer did not intend to transmit. See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida Rules of Professional Conduct, effective May 22, 2006.Rules of Professional Conduct, effective May 22, 2006.

(3)(3) If the recipient lawyer inadvertently obtains information from metadata that the If the recipient lawyer inadvertently obtains information from metadata that the recipient knows or should know was not intended for the recipient, the lawyer must recipient knows or should know was not intended for the recipient, the lawyer must “promptly notify the sender.” “promptly notify the sender.”

Ethics Opinion 06-2Ethics Opinion 06-2

The opinion further notes that lawyers may The opinion further notes that lawyers may need to pursue continuous “training and need to pursue continuous “training and education in the use of technology in education in the use of technology in transmitting and receiving electronic transmitting and receiving electronic documents in order to protect client documents in order to protect client information under Rule 4-1.6(a).” information under Rule 4-1.6(a).” Metadata is an inherent part of every Metadata is an inherent part of every electronic document. Therefore, to send electronic document. Therefore, to send the electronic document requires sending the electronic document requires sending the metadata embedded within it. the metadata embedded within it.

Rule 4-1.6(a) and subsection (1)Rule 4-1.6(a) and subsection (1)

Pursuant to Rule 4-1.6(a) and subsection (1) of the opinion, the Pursuant to Rule 4-1.6(a) and subsection (1) of the opinion, the lawyer can take reasonable precautions to protect the client by lawyer can take reasonable precautions to protect the client by employing features and programs that will remove most of the employing features and programs that will remove most of the metadata in an electronic document. Also, when informing clients of metadata in an electronic document. Also, when informing clients of the risks inherent in transmitting electronic documents, the lawyer the risks inherent in transmitting electronic documents, the lawyer can address concerns pertinent to metadata before obtaining client can address concerns pertinent to metadata before obtaining client consent. However, both of these “special measures” may not be consent. However, both of these “special measures” may not be necessary if subsection (2) of the opinion affords a reasonable necessary if subsection (2) of the opinion affords a reasonable expectation of privacy to electronic documents that shields expectation of privacy to electronic documents that shields metadata from the risks associated with inadvertent disclosure. metadata from the risks associated with inadvertent disclosure. Since receiving lawyers cannot mine electronic documents for Since receiving lawyers cannot mine electronic documents for protected information in the metadata, sending lawyers may not be protected information in the metadata, sending lawyers may not be required to take measures to conceal or remove it. required to take measures to conceal or remove it.

Rule 4-4.4(b)Rule 4-4.4(b)

Rule 4-4.4(b) only applies to “documents” and may not be Rule 4-4.4(b) only applies to “documents” and may not be applicable to inherent parts of the document (applicable to inherent parts of the document ( i.ei.e., metadata). If Rule ., metadata). If Rule 4-4.4(b) is applicable, it could not be efficiently implemented. Of the 4-4.4(b) is applicable, it could not be efficiently implemented. Of the lawyers aware of the existence of metadata, few will spend the time lawyers aware of the existence of metadata, few will spend the time and resources necessary to warn sending attorneys that the and resources necessary to warn sending attorneys that the metadata in the electronic document they received may reveal metadata in the electronic document they received may reveal protected information. Again, the author recognizes the utility of protected information. Again, the author recognizes the utility of Ethics Opinion 06-2. If receiving lawyers are prohibited from mining Ethics Opinion 06-2. If receiving lawyers are prohibited from mining the document’s metadata in the first place, then they will not the document’s metadata in the first place, then they will not encounter protected information in the metadata and issues relevant encounter protected information in the metadata and issues relevant to Rule 4-4.4(b) should not arise. If they encounter this information, to Rule 4-4.4(b) should not arise. If they encounter this information, they have an obligation under subsection (3) of the opinion to they have an obligation under subsection (3) of the opinion to promptly notify the sender. promptly notify the sender.

Duty to Comply Duty to Comply vs. vs.

Violation of EthicsViolation of Ethics

Uncertainty will arise when lawyers are Uncertainty will arise when lawyers are faced with a duty to comply with these faced with a duty to comply with these rules at the risk of violating their ethical rules at the risk of violating their ethical obligations to safeguard protected and obligations to safeguard protected and confidential information. Therefore, Florida confidential information. Therefore, Florida lawyers must be cognizant of metadata’s lawyers must be cognizant of metadata’s existence in order to understand the existence in order to understand the impact it has on the discovery process and impact it has on the discovery process and on their client’s rights.on their client’s rights.

SANCTIONSSANCTIONS

Chuck ZundelChuck Zundel

72 Reported Cases of Disciplinary Actions 72 Reported Cases of Disciplinary Actions from January 2008 to April 1, 2008from January 2008 to April 1, 2008

The Florida Bar NewsThe Florida Bar News

14%

32%54%

Drug Crimes and Non-Monetary Criminal Transgressions

Matters of Money andTrust Accounts

CompetentlyRepresenting andCommunicating withClient; Candor with theCourt

Examples of TransgressionsExamples of Transgressions

Drug Crimes and Non-Monetary Criminal TransgressionsDrug Crimes and Non-Monetary Criminal Transgressions– DUI and drug possessionDUI and drug possession– Child pornography and child abuseChild pornography and child abuse

Matters of Money and Trust AccountsMatters of Money and Trust Accounts– A bright-line distinction as to consequences between violations bearing upon A bright-line distinction as to consequences between violations bearing upon

failure to maintain adequate trust account records and misappropriation of funds failure to maintain adequate trust account records and misappropriation of funds for personal use and gainfor personal use and gain

– Misappropriation of large sums of moneyMisappropriation of large sums of money– Mail fraud and income tax evasionMail fraud and income tax evasion– Fabricating claims and submitting fraudulent invoices for legal workFabricating claims and submitting fraudulent invoices for legal work

Competently Representing and Communicating with Client; Candor with the Competently Representing and Communicating with Client; Candor with the CourtCourt– Abandoning practice and failure to notify or protect clientsAbandoning practice and failure to notify or protect clients– Accepting cases and practicing while suspendedAccepting cases and practicing while suspended– Violating Court order prohibiting involvement by helping draft a pro se briefViolating Court order prohibiting involvement by helping draft a pro se brief– Failure to respond to discovery after repeated directivesFailure to respond to discovery after repeated directives– Taking fees; no significant activityTaking fees; no significant activity– Misrepresenting assets and relationship in personal bankruptcyMisrepresenting assets and relationship in personal bankruptcy

SANCTIONSSANCTIONS

Lawyer/client sanctioned $29,000 for Lawyer/client sanctioned $29,000 for client’s “profanity-laced” deposition client’s “profanity-laced” deposition Lawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition, ABA Journal Law News Now, March 5, 2008, discussing GMAC Bank v. HTFC Corp.GMAC Bank v. HTFC Corp.

PUBLIC PERCEPTION OF PUBLIC PERCEPTION OF ATTORNEYSATTORNEYS

Jessica I. HorowitzJessica I. Horowitz

Please see The Florida Bar website Please see The Florida Bar website www.flabar.orgwww.flabar.org and access Ethics and access Ethics Opinion/Advertising Regulation and Opinion/Advertising Regulation and Information/Examples of Complying and Information/Examples of Complying and Non Complying ads Non Complying ads

““Life’s Short. Get a Divorce.” Life’s Short. Get a Divorce.” BillboardBillboard

Public Perception of AttorneysPublic Perception of Attorneys

AdvertisingAdvertising– An attorney may not solicit prospective An attorney may not solicit prospective

clients through Internet chat rooms, clients through Internet chat rooms, defined as real time communications defined as real time communications between computer users. OPINION A-00-between computer users. OPINION A-00-1 (August 15, 2000)1 (August 15, 2000)

January 1, 2008: Bar News ArticleJanuary 1, 2008: Bar News Article

Action preventing online lawyers from Action preventing online lawyers from answering questions nixed.answering questions nixed.– Review committee on Professional Ethics to Review committee on Professional Ethics to

review chat room advertising issuereview chat room advertising issue

Opinion on lawyers on chat rooms to be Opinion on lawyers on chat rooms to be reconsideredreconsidered

CONCLUSIONCONCLUSION

" While serving as advocates for their clients, lawyers are not required to abandon notions of civility. Quite the contrary. . . [C]ivility is an essential part of effective advocacy. Professionalism's main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer." Chief Justice Robert Benham of Georgia Supreme Court, Butts v. State, 546 S. E. 2d 472, 486 (Ga. 2001).

CITESCITES

Florida Rules of Civil Florida Rules of Civil Procedure.pdfProcedure.pdfFlorida Rules of Professional Florida Rules of Professional Conduct.pdfConduct.pdfLocal Rules for the Southern Local Rules for the Southern District.pdfDistrict.pdfStandards of Professional Courtesy in the 20th Judicial Standards of Professional Courtesy in the 20th Judicial Circuit.pdfCircuit.pdfThe Florida Bar v The Florida Bar v Martocci.pdfMartocci.pdfLawyer, Client Sanctioned $29K for Client’s Profanity-LaLawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition | ABA Journal - Law News Nowced Deposition | ABA Journal - Law News NowGMAC Bank v HTFC GMAC Bank v HTFC Corp.pdfCorp.pdfMetadata The Future Impact of Invisible Data on E DiscoMetadata The Future Impact of Invisible Data on E Discovery in very in Florida.pdfFlorida.pdf

Brought to you by the following:Brought to you by the following:

Judge Vince MurphyJudge Vince MurphyJudge Daniel MonacoJudge Daniel MonacoBradley S. Donnelly—Treiser, Collins & VernonBradley S. Donnelly—Treiser, Collins & VernonMaria I. Barbosa—Cohen & GrigsbyMaria I. Barbosa—Cohen & GrigsbyDavid L. Dawson—Bond, Schoeneck and KingDavid L. Dawson—Bond, Schoeneck and KingFitzgerald A. Frater— Frater Law Firm, P.A.Fitzgerald A. Frater— Frater Law Firm, P.A.Jessica I. Horowitz- Legal Research ConsultantsJessica I. Horowitz- Legal Research ConsultantsAngela M. Miller—The Livingston FirmAngela M. Miller—The Livingston FirmPatrick G. White– Porter Wright Morris & ArthurPatrick G. White– Porter Wright Morris & ArthurChuck Zundel—Bond, Schoeneck and KingChuck Zundel—Bond, Schoeneck and King