IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Complainant, Case No. SC TFB File No ,763(4B) MICHAEL JOSEPH DAVIE, Respondent. / RESPONDENT S INITIAL BRIEF Michael J. Davie Florida Bar No: N. Market St. Suite 303 Jacksonville, Florida Phone: (904) Fax: (904)

2 TABLE OF CONTENTS TABLE OF CONTENTS Page 2 TABLE OF CITATIONS 4 PRELIMINARY STATEMENT 5 STATEMENT OF THE CASE AND OF THE FACTS 6 SUMMARY OF ARGUMENT Does the rule of Crosby v. Jones, 705 So.2d 1356, (Fla.1998) apply to a lawyer s Rule 4-1.4(b) explanation to a client? Page Does the fact of this Court s having incrementally receded from strict adherence to the impact rule constitute resolution of an unsettled legal principle within the meaning of Crosby, supra? Page In what detail was Respondent ethically required to explain to high school-educated clients the effect on the impact rule in bystander cases of this Court s ANALYSIS in Hagan v. Coca Cola, 804 So.2d 1234, (Fla.2001)? Page Had Respondent complied with rule 4-1.4(b) where he advised lay clients that this Court had continued to recede from the impact rule and he believed that Hagan had paved the way for a counterclaim in their case as they had requested? Page The Referee reported that Respondent: told his client they had a very good chance of prevailing [Told his client] that the impact rule had been expanded to include this type of case never told his client that she might have to file an appeal failed to recognize, or advise his client, that the impact rule had been effect in Florida for over one hundred years 2

3 Even if Respondent actually was so deficit, was he merely misinformed or did he have a duty to inform the client of things that he did not believe were true? Page Are the five cases cited in the Report of Referee, paragraph VI, completely inapposite? Page Did the Referee apply improper aggravators? Page 24 ARGUMENT Page 11 Standard for Review Page 11 Issues for Review Page 12 CONCLUSION Page 25 CERTIFICATE OF SERVICE Page 25 CERTIFICATE OF COMPLIANCE Page 25 3

4 TABLE OF CITATIONS Bar v. Brakefield, 697 So.2d 766 (Fla.1996) Page 23 Bar v. Fredericks, 731 So.2d 1249 (Fla. 1999) Page 22 Bar v. Karten, 829 So.2d 883 (Fla.2002) Page 24 Bar v. Lecznar, 690 so.2d 1284 (Fla.1997) Page 21 Bar. v. Mogil, 763 So.2d 303 (Fla.2000) Page 24 Bar v. Nowacki, 697 So.2d 828 (Fla.1997) Page 22 Bar v. Roberts, 770 So.2d 1207 (Fla.2000) Pages 21, 23 Bar v. Varner, 992 So.2d 224 (Fla. 2008) Page 23 Crosby v. Jones, 705 So.2d 1356 (Fla.1998) Pages 2, 10-12, Gracey v. Eaker, 837 So.2d 348 (Fla.2002) Page 20 Hagan v. Coca Cola, 804 So.2d 1234 (Fla.2001) Pages 2, 7, 12-15, 18 Willis v. Gami Golden, 967 So.2d 348 (Fla.2007) Page 12, 15 Florida Bar Ethics School Workbook Page 21 Bar Rule 3-7.7(c )(5) Page 11 Bar Rule 4-1.4(b) Page 2, 8, 10, 15-16, 18,

5 PRELIMINARY STATEMENT Respondent will refer to himself as Respondent or I, and to The Florida Bar as the Bar. Specific pages and lines of the trial transcript shall be referred to as T [page], line(s) [ ]. Trial exhibits will be identified as Bar Ex [ ], or Respondent Ex [ ]. The Referee Report Index page lists 7 documents or groups of documents. I cite the third such group of documents as [Referee Index, 3]. 5

6 STATEMENT OF THE CASE AND OF THE FACTS 1 Two life partners lived together in Jacksonville and shared a pickup truck owned by Diane Bocher. Stephanie McMurray was driving the truck alone on March 8, 2001, when she happened to turn left into the path of an oncoming motorcycle. The motorcycle rider was ejected and slid into the truck, hitting his head on McMurray s truck s right rear wheel and he died at the scene. The motorcyclist s family sued both the owner, Bocher, and the driver, McMurray. They were defended by insurance counsel. There was evidence that the motorcyclist had no motorcycle license endorsement or training, and had been speeding as he approached the intersection where McMurray was waiting to turn left [TR, 70, line 18 through page 71, line 18]. The truck s driver, Stephanie McMurray was psychologically devastated by the fatal crash. Both women wanted to counterclaim against the motorcyclist s estate for McMurray s severe emotional distress [TR, 53; 67-69]. Diane Bocher took the lead in all aspects of the lawsuit because Stephanie McMurray was far too emotionally labile and medicated even to 1 My specific recollection of the events of 2001 was sharper when I wrote to Bar Counsel in 2003 [Respondent Ex 6]. 6

7 talk to me, outside of deposition and mediation [TR, 68, line 16 through 69, line 11; TR, 94, lines 11-19]. Diane Bocher came to my office having already decided to counterclaim for intentional infliction of emotional distress [TR 53, lines 7-22]. She retained me on behalf of Ms. McMurray and herself one week after this Court had decided Hagan v. Coca Cola, 804 So.2d 1234 (Fla. 2001). I had read the case in Florida Law Weekly and, as a plaintiffs personal injury lawyer, was excited to see that this Court had further receded from the bane of Plaintiffs existence, the impact rule. [TR, 16, 17] I explained my view of the effect on the impact rule of Hagan to Diane Bocher [TR 54; TR 72, lines 12-17; TR 73, line 23 through TR 74, line 3; TR, 108]. I filed the counterclaim, the clients insurance defense counsel approved of it [Respondent Ex 3, 5]. The trial judge granted summary judgment against my clients on the counterclaim on May 28, I reported the summary judgment by letter of May 30, 2002 to the clients [Bar Ex 6] and told my clients that they ought to appeal and I offered to help them find appellate counsel [TR 28, lines 14-19; Bar Ex 6]. In lieu of appealing, they complained to the Bar [Respondent Ex 1]. It is important that Ms. Bocher s actual complaint [ 8 of Respondent Ex 1] 7

8 was that she had lost her job and needed money. Included in Referee Index, 3 is her letter to me of August 16, 2004 offering to have this action stopped for $2,500. The Bar filed its Complaint herein and its paragraph 14 specified that Respondent failed to adequately explain: the process of filing a counterclaim, failed to discuss contributory [sic] negligence, that he did not handle appeals and the likelihood of success and so did not allow Bocher and McMurray to make an informed decision about Respondent s representation and his fees. In trial, Bar Counsel limited his attack: Our basic position is that he did not go far enough under rule 4-1.4(b) to allow Ms. Bocher and he didn t even talk to his client,ms. McMurray about the case, to the extent to allow them to say yes or no, we want to go forward with this, to make a reasonable decision. [TR 111,112] The Referee considered the issue to be: [TR 97, lines 18-22] It s the fact that you didn t keep them advised. And let them know the territory they were going into. 8

9 The Referee volunteered that while he was in private practice: I did the exact same thing in [sic] the impact rule, and I lost. [TR 98, lines 5-8]. Yet he found me guilty. 9

10 SUMMARY OF ARGUMENT The Bar argues that I did not fulfill my duty to fully explain to the highschool educated complainant aspects of Florida law that the Bar claims, without citation, needed to be explained. Such aspects include contributory (sic) negligence [Bar Complaint 14] and specific details of this Court s having granted exceptions to the impact rule over past decades. As I pointed out immediately to Bar Counsel [Respondent Ex 6] and to the Referee in my Answer, 15, and 17 times during the trial, Crosby v. Jones, 705 So.2d 1356 (Fla.1998) delineated the limits of my duty to explain the finer points of the impact rule to a client. That single case controls the issue herein but the Referee neither applied it nor even mentioned it. 10

11 ARGUMENT STANDARD OF REVIEW The Referee s Report should be set aside where it is shown to be erroneous or unjustified. Rule Reg. Fla. Bar 3-7.7(c )(5). Despite my having repeatedly cited to Crosby v. Jones, 705 So.2d 1356 (Fla.1998) from the Bar s initial processing through trial [Respondent Ex 6; TR 106, line 22 TR 108], the Referee s Report makes no mention of Crosby, supra and completely ignores it. 11

12 ISSUES FOR REVIEW 1. Does the rule of Crosby v. Jones, 705 So.2d 1356, (Fla.1998) apply to a lawyer s Rule 4-1.4(b) explanation to a client? This Court s opinion in Crosby, supra, determines the outcome of the issue herein: decisions made on a fairly debatable point of law are generally not actionable under the rule of judgmental immunity Id, at an attorney, who acts in good faith and makes a diligent inquiry of an area of law, should not be held liable for providing advise or taking action in an unsettled area of law. Id. there was no duty to inform the [client] of the conflicting case law on this issue an attorney should not be required to compromise or attenuate an otherwise sound exercise of informed judgment with added advise concerning the unsettled nature of relevant legal principles. [Emphasis supplied] Id, at That my judgment was sound is proven by Willis v. Gami Golden Glades, 967 So.2d 348 (Fla. 2007), which the Referee Report recognized on page 3. 12

13 2. Does the fact of this Court s having incrementally receded from strict adherence to the impact rule constitute resolution of an unsettled legal principle within the meaning of Crosby, supra? The complex state of affairs of the impact rule, especially in bystander cases is shown by Hagan v. Coca Cola, 804 So.2d 1234, 1237 in this Court s ANALYSIS : a. Notwithstanding our adherence to the rule, this Court has noted several instances where the impact rule should not preclude an otherwise viable claim. Prosser and Keeton state that the impact rule should not be applied where emotional damages are an additional parasitic consequence of conduct that itself is a freestanding tort apart from any emotional injury. It seemed to me that the freestanding tort giving rise to this counterclaim was the motorcycle s having sped into the path of the truck and the rider s having impacted the truck with his head. That was one of the reasons that I pled an impact [Bar Ex 3]. We today modify to a limited extent our previous holdings on the impact doctrine We are unable to establish a rigid 13

14 hard and fast rule that would set the parameters for recovery for psychic trauma in every case that may arise. The outer limits of this cause of action will be established by the courts of this state on a case-bycase basis [Emphasis supplied]. Notably, the Hagan Court in the CONCLUSION portion of its opinion said: As this Court recognized in Tanner, the impact rule does not apply where emotional damages are a consequence of conduct that itself is a freestanding tort apart from any emotional injury. Id., at Insurance defense counsel for Bocher and McMurray approved of my counterclaim for emotional distress [Respondent s Ex 3]. 14

15 3. In what detail was Respondent ethically required to explain to high school-educated clients the effect on the impact rule in bystander cases of this Court s ANALYSIS in Hagan v. Coca Cola, 804 So.2d 1234, (Fla.2001)? It seemed to me that there was a trend underway in this Court to recede from the impact rule to the extent that these clients counterclaim was viable. [TR, 14, 15; 19, lines 22-25] This Court s decision in Willis v. Golden Glades, supra, later showed that my assessment had been correct. The Bar complains that I had failed to explain all this in sufficient detail to my clients. The question of how much detail was required for Ms. Bocher is addressed by the Comment to Rule 4-1.4: In litigation a lawyer should explain the general strategy and prospects of success Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. 15

16 4. Had Respondent complied with rule 4-1.4(b) where he advised lay clients that this Court had continued to recede from the impact rule and he believed that Hagan had paved the way for a counterclaim in their case as they had requested? I had placed into evidence 2 before the Referee [TR ], an article from the Florida Bar Journal in April 2008 that is directly on point and aimed at Florida lawyers. I submit that non-lawyers with high school educations would not readily comprehend the article s exposition of the history of this Court s exceptions to the impact rule. On page 20 of that article, the author sums up the unsettled nature of the law regarding the impact rule in 2007: Notwithstanding its numerous concurring and dissenting opinions, Willis finally provides some much needed clarity on how the Supreme Court expects lower courts to apply this ever-evolving, somewhat amorphous rule. Ms. Bocher s testifed that Ms. McMurray had been unable to talk to me or deal with her situation at that time or even 7 ½ years later before the Referee. [TR, 94-95]. I explained that there had just been a case that created another exception to the impact rule and what I thought it meant for 2 My copy of the trial transcript lists some exhibits for identification but none as admitted in evidence. I say that that is erroneous. 16

17 their proposed counterclaim. I explained it at a level that I thought would be comprehended by a high-school graduate with no legal background [TR , 110]. I thought that the counterclaim had an even chance of success and that is what I told the clients. 17

18 5. The Referee reported that Respondent: a. told his client they had a very good chance of prevailing b. [Told his client] that the impact rule had been expanded to include this type of case c. never told his client that she might have to file an appeal d. failed to recognize, or advise his client, that the impact rule had been effect in Florida for over one hundred years Even if Respondent was so deficit, was he merely misinformed or did he have a duty to tell his client things that he did not believe were true? The Report of Referee, in the last paragraph of II, cites: Failure of Respondent to fully explain the problems involved with the impact rule; that they would lose at trial; that two appeals would have to be taken; that he did not handle appeals did not allow [clients] to make an informed decision about retaining Respondent These clients had come to me having already decided to file their counterclaim. [TR 53]. I cite to Crosby, supra, for the premise that I had no duty to explain to lay clients the problems with the impact rule. 18

19 I thought, right or wrong, that we had an even chance in the trial court. Whether or not I could or would personally file an appeal for them is immaterial. I had told Ms. Bocher [Ms. McMurray was too psychologically disabled to meet me, TR, 26, line 10 through page 27, line 19] that I was encouraged by Hagan, supra and believed that we had a better than even chance of success in the trial court. Since suit was already filed, we knew who the trial judge was and I knew him to have been a truly preeminent plaintiffs lawyer before ascending the bench [TR, 20]. Interestingly, this Court twice stated the applicable and binding law concerning the adequacy of my explanation to Ms. Bocher in Crosby, supra, twice quoting a rule from a California appellate court: As a matter of policy, an attorney should not be required to compromise or attenuate an otherwise sound exercise of informed judgment with added advise concerning the unsettled nature of relevant legal principles. [citations omitted]. Id., at 1358 and repeated verbatim at This Court went on, id., at 1359, to explain that: 19

20 Attorneys cannot be placed in the position of having to accept direction from clients on intricate interpretations of the correct or current state of the law. That the state of Florida law on the impact rule in 2001 was unsettled can not be gainsaid. In 2002, in Gracey v. Eaker 3, 837 So.2d 348, 358, (Fla.2002) (Pariente, J., concurring), Justice Pariente wrote the first of four concurring opinions calling for abolition altogether of the impact rule. My two clients quickly came to rely on me and before long I assumed the role of personal pre-trial counsel for the women, vis-à-vis their insurance counsel [Bar Ex 4; TR, 24, line 1 through page 25, line 8] for no additional charge. I had explained the impact rule to them in a way that I thought they would and could comprehend. I was enthusiastically optimistic after having digested Hagan, supra, and I likely passed some of that on to them [TR72, lines 12-17] There is no case found, other than Crosby, supra, discussing the degree to which a lawyer must explain to legally unsophisticated clients complicated legal doctrine such as the impact rule and this Court s exceptions thereto. 3 This case came later but shows the unsettled nature of the law. 20

21 The 2004 Bar s Ethics School Workbook does not even mention rule 4-1.4(b). Rule 4-4.1(b) had been used heretofore only in more serious contexts. Bar v. Roberts, 770 So.2d 1207 (Fla.2000) found a lawyer guilty of that violation where he had closed his office on short notice to a client who had to retain new counsel immediately before mediation. Bar v. Lecznar, 690 So.2d 1284, 1287 (Fla. 1997) involved a lawyer s having assured clients that their litigation was progressing although their claims had been dismissed for two years. 21

22 6. Are the five cases cited in the Report of Referee, paragraph VI, completely inapposite? The Referee writes, in paragraph VI of his Report, that he considered five cases, all submitted by the Bar [TR 112, lines 11-13]. Every one is inapposite and misleading on the instant facts. Each of the Bar s proffered cases involved numerous, serious, repeated violations and so misled the Referee and diverted his attention from the actual facts of this case: In Bar v. Fredericks, 731 So.2d 1249, 1253 (Fla. 1999), the lawyer failed to ever inform [his client] that he would not be handling the lawsuit or that the statute of limitations would expire if litigation were not commenced and did not keep [the client] properly informed as to the true status of the case. Fredericks was suspended for 6 months for numerous other violations. I had timely filed the requested counterclaim and reported summary judgment 2 days after entry of the Order [Bar Ex 5 & 6]. In Bar v. Nowacki, 697 So.2d 828, 831 (Fla.1997), the lawyer acknowledges that she should have contacted each of her clients and 22

23 informed them of her need to take medical leave and wholesale delegation of her caseload to a new associate. Not at all relevant to the instant facts. In Bar v. Brakefield, 697 So.2d 766 (Fla.1996) the lawyer had his telephone disconnected, was defaulted for failing to file any paper, failed to appear at hearings and depositions, had no fee discussion with a client, asked his non-lawyer client to conduct a trial without him, and then conducted a trial by phone (!) Again, not at all relevant to the instant facts. Bar v. Roberts, supra, is inapposite as well. The lawyer s other violations were severe enough for a 91-day suspension. In Bar v. Varner, 992 So.2d 224, 229 (Fla.2008), the lawyer admitted to having no communication with his client The lawyer s other violations were severe enough to merit a one-year suspension. That case too has nothing to do with the instant facts. 23

24 7. Did the Referee apply improper aggravators? In the Referee s Report, paragraph V, the Referee includes as aggravation, refusal to acknowledge wrongful nature of conduct. This Court has repeated in Bar v. Mogil 763 So.2d 303, 312 (Fla.2000) and Bar v. Karten, 829 So.2d 883, 889 (Fla.2002) that where, as here, I have always denied, and continue to deny, misconduct, this aggravator does not apply. The Referee also lists vulnerability of victim, even though there is nothing in the evidence to suggest that. Ms. Bocher came to me on referral from lawyers who would not help her [TR 52, line 17 page 53, line 22]. She had already decided to counterclaim for Ms. McMurray s psychic trauma but was not herself in any way vulnerable. The final aggravator listed is indifference to making restitution. Not only does that assume some wrongdoing, but also the record included with my rial brief [Referee Index, 3] shows my letter to her of August 11, 2004 which Ms. Bocher answered with her demand for $2,500 to make this complaint go away. I did not respond. 24

25 CONCLUSION The Report of Referee has been shown to be substantially erroneous and entirely unjustified. Even assuming the Referee s findings of fact, if Respondent misunderstood the law on the impact rule, I explained to his clients as I understood it. There is no support in the record for guilt. The Report should be set aside and Respondent adjudged not guilty of the sole violation charged, rule 4-1.4(b). CERTIFICATE I HEREBY CERTIFY that a copy of this INITIAL BRIEF was provided to Chief Disciplinary Counsel James N. Watson, Jr., Esq. by E- mail and U.S. Mail this 4th day of June CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Answer Brief complies with the requirements of Fla. R. App. P Michael J. Davie Florida Bar No: N. Market St. Suite 303 Jacksonville, Florida Phone: (904) Fax: (904)

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