Earlier this year, the JAPCA Ethics Alert Blog reported on San Diego Bar Opinion 2011-2 (May 24, 2011) addressing a hypothetical involving a lawyer who represents former employees in an employment lawsuit and sends “friend” requests on social media websites to higher level employees of the opposing party/employer identified by the client as being disgruntled. Here’s a summary of the JAPCA Ethics Alert and San Diego Bar Opinion:

• An attorney representing a former employee against his former company in a wrongful discharge action sends a “friend” request to two high-ranking employees with the client’s former company whom the client had identified as being dissatisfied with the employer and therefore likely to make disparaging comments on their social media pages.  The attorney intended to use information obtained from the social media websites to advance his client’s interests in the litigation.  The request provided the name of the attorney but did not reveal the reason for the request.  The opinion focused on whether the friend requests violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct.
•  Even though the friend requests makes no reference to anything other than the sender’s name, the request was found to relate to the “subject matter of the representation” since the communication was motivated by a search for information about the subject matter of the representation.  The opinion rejected the argument that sending a friend request to a represented party was no different from accessing an opposing party’s public website since the only reason for the friend request is to get past the restricted access on the social media page in order to gather information from the represented employee.
• The friend request violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct.  According to the opinion, a lawyer seeking to obtain information from a represented party on restricted social media websites must either: (1) obtain the consent of the represented party’s attorney and fully disclose his or her affiliation and the purpose of the friend request; or (2) seek the information through discovery.

The JAPCA Ethics Alert notes that the California Rule in question is the equivalent of Florida Bar Rule is 4-4.2. While other state’s Bar Ethics Opinions are not binding and are for prepared for guidance only, attorneys should be mindful of how a similar situation would be analyzed under the rules of their local jurisdiction.  You can read more posts from the JAPCA Ethics Alert here. 

Real Property and Business Litigation Report

Volume V, Issue 8

February 25, 2012

Manuel Farach

Kiln PLC v. Advantage General Ins. Co., Ltd., — So.3d —-, 2012 WL 555393 (Fla. 4^th DCA 2012).

An insurance contract is ambiguous and subject to parol evidence when the policy offers no explanation for the disputed language.

Zarate v. Deutsche Bank Nat. Trust Co. as Trustee, — So.3d —-, 2012 WL 555401(Fla. 3d DCA 2012).

Appellant mortgagee has the burden on appeal to demonstrate error in the trial court, and failure to deliver record which demonstrates error results in affirmance of the trial court.

Ernesto Fong v. Courvoisier Courts Condominium Ass’n, Inc., — So.3d —-, 2012 WL 555403 (Fla. 3d DCA 2012).

A party may not use an appeal from a motion to dismiss an injunction as a substitute for failing to appeal the order that granted an injunction after notice.

Regions Bank v. Capital Square, Inc., — So.3d —-, 2012 WL 555420 (Fla. 3d DCA 2012).

A bank sued for improperly depositing checks may claim third parties are at fault under Fabre v. Marin, 623 So.2d 1182 (Fla.1993), but such defense only affects apportionment of damages.

Wexler v. Rich, — So.3d —-, 2012 WL 555482 (Fla. 4th DCA 2012).

A bank has no duty to explain to customers the legal ramifications of a bank account titled as joint tenants with rights of survivorship (JTROS) as opposed to a tenancy by the entireties. A bank account titled as JTROS will pass accordingly despite any adverse intentions of the parties.

Haber v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 555484 (Fla. 4th DCA 2012).

Foreclosing lender must refute affirmative defense of failure of notice and opportunity to cure under loan instrument in order to be entitled to foreclosure.

Best v. Education Affiliates, Inc., — So.3d —-, 2012 WL 555490 (Fla. 4th DCA 2012).

Arbitrators are to determine whether an agreement violates public policy when the arbitration agreement delegates authority to the arbitrator to determine the enforceability of the arbitration agreement.

Marmet Health Care Center, Inc. v. Brown, — S.Ct. —-, 2012 WL 538286 (2012).

A categorical prohibition against arbitration of certain types of claims (e.g., nursing home claims) violates the Federal Arbitration Act.

In re Jennings, — F.3d —-, 2012 WL 555875 (11^th Cir. 2012).

Transfer of property in order to avoid execution by perfected creditors constitutes willful and malicious “injury to property” under bankruptcy code section 11 U.S.C. § 523 (a) (6).

A Sarasota man who allegedly “friended” the defendant in a case while serving on a jury could face jail time next week if found guilty of disregarding a judge’s orders, according to WTSP.com.

Jacob Jock was selected to be part of a jury for a car accident case back in December. Jock was dismissed from the jury after it was discovered that he friended the defendant in the case. Prudently, the defendant refused to accept Jock’s friend request and instead alerted her attorney. Following his dismissal, court officials became aware of more Facebook posts, including a wall post detailing his excitement for being kicked off the jury. These posts prompted the judge to find him in contempt of court. If found guilty following a hearing, he could face a fine or even jail time.

This is another critical example of how social media is affecting the legal system.  More than ever, attorneys need to monitor social media use of their clients, opposing parties, witnesses, and juries.  Attorneys can take prevention measures by requesting a jury instruction warning juror’s of the implications and consequences of using social media during trial.  Thanks to Michael Napoleone for the link!

The Florida Bar acknowledges that attorneys and law firms are using Facebook, Twitter, and LinkedIn for both personal use and professional networking. Most importantly, the Bar recognizes that social media pages for individual lawyers that are used solely for social purposes, such as maintaining social contact with family and close friends, are not subject to lawyer advertising rules.  The complete set of guidelines are available on the Florida Bar website, and the critical portions of these guidelines are summarized below:

• Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. These pages must therefore comply with all of the general regulations set forth in Rule 4-7.2. Regulations include prohibitions against any misleading information, which includes references to past results, promises of results, and testimonials, and prohibitions against statements characterizing the quality of legal services.
• Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer. Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, or persons who have requested information from the lawyer.
• Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page. If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.
• Lawyers who post information to Twitter whose postings are generally accessible are subject to the lawyer advertising regulations set forth in Rule 4-7.2 as above. A lawyer may post information via Twitter and may restrict access to the posts to the lawyer’s followers, who are persons who have specifically signed up to receive posts from that lawyer. If access to a lawyer’s Twitter postings is restricted to the followers of the particular lawyer, the information posted there is information at the request of a prospective client and is not subject to the lawyer advertising rules under Rule 4-7.1(h). The information remains subject to the general misconduct rule, which prohibits any conduct involving fraud, deceit, dishonesty or misrepresentation under Rules 4-7.1(i) and 4-8.4(c). Any communications that a lawyer makes on an unsolicited basis to prospective clients to obtain “followers” is subject to the lawyer advertising rules, as with any other social media as noted above.
• A page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.

Please share this information with any lawyer, law firm human resources director, and marketing representative for any law practice in Florida.  These guidelines clarify common attorney advertising questions relating to personal and professional social media use in Florida, and should be included as a supplement to any law firm social media policy. Additional information is available in the Handbook on Lawyer Advertising and Solicitation on the Florida Bar website.  Thank you to Renee Thompson at Mateer Harbert for bringing these guidelines to my attention!

Real Property and Business Litigation Report

Volume V, Issue

February 18, 2012

Manuel Farach

Beaumont v. Bank of New York Mellon, — So.3d —-, 2012 WL 511288 (Fla. 5^th DCA 2012).

Party seeking to re-establish a lost promissory note under Fla. Stat. § 673.3091 must prove who lost the note, when it was lost, who had right to enforce the note when lost, who owned the note, and provide adequate protection to the obligor on the note. Additionally, judgment cannot be entered on behalf a party who has been dropped from the litigation.

Fernandez-Fox v. Reyes, — So.3d —-, 2012 WL 511326 (Fla. 5^th DCA 2012).

Fla. Stat. § 64.081 requires each party to a partition action to pay a share of plaintiff’s attorneys’ fees, defendant’s attorneys’ fees or both. Applying equitable principles, fees should be normally paid in proportion to a party’s interest.

Bendross v. Readon, — So.3d —-, 2012 WL 469832 (Fla. 3d DCA 2012).

Religious organizations, like other non-profit organizations, are controlled by Florida Statutes Chapter 617, and the Ecclesiastical Abstention Doctrine is not violated when litigation involves applying neutral principles of law without inquiry into religious doctrine.

In re Bullock, — F.3d —-, 2012 WL 446279 (11^th Cir. 2012).

“Defalcation” under 11 U.S.C. § 523 (a) (4) refers to the failure of a fiduciary to produce entrusted funds. “Defalcation” need not rise to the level of fraud, embezzlement or misappropriation, but does require more than mere negligence and can be characterized as being objectively reckless.

Real Property and Business Litigation Report

Volume V, Issue 6

February 11, 2012

Manuel Farach

Hopewell, LLC v. Alarion Bank, — So.3d —-, 2012 WL 400449 (Fla. 1^st DCA 2012).

A trial court may deem a motion to dismiss that has arbitration defenses as a motion to compel arbitration as may rule on the motion to dismiss. A ruling on a motion to dismiss which contains claims of arbitration issues is not immediately appealable under Florida Rule of Civil Procedure 9.130 (a) (3) (C) (iv) unless an order denies a motion to compel arbitration.

Chacha v. Transport USA, Inc., — So.3d —-, 2012 WL 385490 (Fla. 4^th DCA 2012).

A trial court finding of fraud on the court must be supported by written findings of fact which demonstrate that movant has proven, by clear and convincing evidence, a deliberate scheme to subvert the judicial process, and that after balancing the equities, dismissal is the proper remedy.

Bank of New York v. Moorings At Edgewater Condominium Ass’n, Inc., — So.3d —-, 2012 WL 385491 (Fla. 2d DCA 2012).

Any flat, unconditional fine, not meant to compensate the injured party and imposed after a finding of contempt, is criminal contempt if contemnor has no opportunity to reduce or avoid the fine through compliance. Accordingly, a contempt fine against a lender and its counsel for failure to pay association dues during litigation is indirect criminal contempt which must contain a purge provision.

Duke v. HSBC Mortg. Services, LLC, — So.3d —-, 2012 WL 385512 (Fla. 4^th DCA 2012).

On rehearing, the court further clarified its earlier opinion reversing entry of summary judgment and stated that that it is plaintiff’s burden to provide an original note to the court or otherwise re-establish the note, even if the court papers demonstrate the original note was lost by the court.

Jervis v. Tucker, — So.3d —-, 2012 WL 385518 (Fla. 4^th DCA 2012).

Testamentary capacity is measured at the same time for trusts and wills.

McLean v. JP Morgan Chase Bank Nat. Ass’n, — So.3d —-, 2012 WL 385532 (Fla. 4^th DCA 2012).

The previous opinion at — So.3d —-, 2011 WL 6183587, is withdrawn and superseded by this opinion. A party may show that it is the holder of the note and mortgage at the time of filing suit through various methods, but an evidentiary hearing must be held if the evidence is disputed on this point.

Kalb v. Nack Holding, LLC, — So.3d —-, 2012 WL 385536 (Fla. 3d DCA 2012).

Failure to file a motion for attorneys’ fees within thirty days of judgment is a bright line rule removing a party’s right to attorneys’ fees, notwithstanding that the party has filed a demand for attorneys’ fees in its pleadings.

Rosenkrantz v. Feit, — So.3d —-, 2012 WL 385599 (Fla. 3d DCA 2012).

A co-attorney under a power of attorney is permitted to file suit for declaratory relief to determine whether she is permitted to act without the concurrence of the co-trustee and to determine whether the co-trustee has defalcated with funds.

Bellamy v. Langfitt, — So.3d —-, 2012 WL 385606 (Fla. 3d DCA 2012).

A court may not modify a trust to remove a corporate trustee when the trust contains a “no modification by court” provision.

Phadael v. Deutsche Bank Trust Co. Americas, — So.3d —-, 2012 WL 385608 (Fla. 4^th DCA 2012).

The defense of lack of standing at time of institution of foreclosure suit is waived if not raised in an answer, and may not be resuscitated through a motion under Florida Rule of Civil Procedure 1.540.

Eldon v. Perrin, — So.3d —-, 2012 WL 385611(Fla. 4^th DCA 2012).

An order entering a temporary injunction which makes no factual findings but merely “parrots back” the elements of a temporary injunction is insufficient.

Portfolio Investments Corp. v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 385616 (Fla. 3d DCA 2012).

Under the “unique circumstances of this case,” a successor party may participate in a foreclosure action without a motion and order to intervene or be substituted.

Real Property and Business Litigation Report

Volume V, Issue 5

February 4, 2012

Manuel Farach

Irizarry v. Moore, — So.3d —-, 2012 WL 315844 (Fla. 5^th DCA 2012).

Repeated instances of improper conduct by counsel may deprive parties of a fair trial, even when each instance, standing by itself, would not result in reversal.

Orange County v. Buchman, — So.3d —-, 2012 WL 315869 (Fla. 5^th DCA 2012).

A trial judge stating to the jury that a party is bound by a particular piece of evidence constitutes an improper comment on the weight of evidence in violation of Fla. Stat. § 90.106.

Palm Bay 17, LLC v. First Bank of Puerto Rico, — So.3d —-, 2012 WL 315872 (Fla. 5^th DCA 2012).

A person may only be served by mailing to a private mailbox under Fla. Stat. § 48.031 (6) if the only address discoverable through search of private records is the private mailbox.

North Port Road And Drainage District, v. West Villages Improvement District, — So.3d —-, 2012 WL 300879 (Fla. 2012).

A municipality, despite having home rule powers, may not tax county or state properties.

Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., — So.3d —-, 2012 WL 301029 (Fla. 2012).

Florida’s offer of judgment statute, Fla. Stat. § 768.79, is primarily a substantive statute, and thus is not applicable in situations where parties have agreed the substantive law of another state applies.

Suntrust Banks, Inc. v. Cauthon & McGuigan, PLC, — So.3d —-, 2012 WL 301054 (Fla. 1^st DCA 2012).

An escrow/trust account holder is not entitled to injunction against bank charging back against the account, even if the money in the account belongs to third parties and not the account holder.

Micjo, Inc. v. Department of Business and Professional Regulation, — So.3d —-, 2012 WL 279670 (Fla. 2d DCA 2012).

“Wholesale sales price” under Fla. Stat. § 210.25 (13) does not include shipping costs, federal excise taxes and other charges imposed by domestic distributors.

Toler v. Bank of America, — So.3d —-, 2012 WL 280379 (Fla. 4^th DCA 2012).

Fla. Stat. § 702.07 and Florida Rule of Civil Procedure 1.540 are not in conflict, and the rule provides the method by which to effectuate the statute, i.e., the requirements of the rule must be met in order to vacate a foreclosure judgment.

Cukierman v. BankAtlantic, — So.3d —-, 2012 WL 280408 (Fla. 3d DCA 2012).

A guarantor of a mortgage with no interest in the real property is a proper, but not necessary party to a mortgage foreclosure. Accordingly, a guarantor with no interest in the real property has no standing to contest a foreclosure sale.

Rocca v. Boyansky, — So.3d —-, 2012 WL 280752 (Fla. 3d DCA 2012).

It is error to admit a will to probate prior to a challenge to the will being resolved.

Rainess v. Estate of Machida, — So.3d —-, 2012 WL 283089 (Fla. 3d DCA 2012).

Florida Rule of Civil Procedure 1.240 supersedes prior common law and establishes there is only one requirement for a party to be permitted interpleader, i.e., that the stakeholder is or may be exposed to double or multiple liability. However, a stakeholder must establish that it is disinterested and did not cause the dispute in order to be entitled to attorneys’ fees for the interpleader action.

Waddington v. Baptist Medical Center of Beaches, Inc., — So.3d —-, 2012 WL 254965 (Fla. 1^st DCA 2012).

An appellate court may award Fla. Stat. § 57.105 fees, but is prohibited from awarding against a represented party if the offending argument was not based on then-existing law.

Harbor Landing Condominium Owners Ass’n, Inc. v. Harbor Landing, L .L.C., — So.3d —-, 2012 WL 254971 (Fla. 1^st DCA 2012).

Fla. Stat. § 718.203 (2) imposes an implied warranty against “suppliers,” but not manufacturers, of items used in condominium construction.