Appellate Law

Florida Supreme Court: One Case, Multiple Losers, And A Discovery Question

By Matt Conigliaro

In this attorney discipline decision, the Florida Supreme Court disbarred the respondent because he practiced law during a previously imposed three-year suspension from practice.

The case struck me as noteworthy for two reasons.

First, this was a disciplinary proceeding brought by the bar, and three justices joined a concurrence that heavily criticized the bar’s counsel for misrepresenting the record at oral argument and not afterward correcting the misstatements. Apparently the bar’s counsel repeatedly stated that the bar had objected to certain evidence presented below — once even saying the bar had “repeatedly and vociferously” objected — when it had not objected at all.

By implication, the concurrence tells all attorneys who argue before the court that misstatements made during oral argument should be corrected.

Second, the majority opinion criticized the respondent for how he responded to interrogatories seeking mitigation evidence to be used at the hearing. The respondent answered that any potential mitigation had not yet been determined, and he never supplemented that response, but at the hearing he presented mitigation evidence concerning his mental health. Under these circumstances, the majority stated: “[W]e feel compelled to reiterate that parties who evade their discovery responsibilities will not be permitted to benefit from such improper tactics.” As the concurrence pointed out, though, it was never determined that the response was untrue when made, and rule 1.280(e) specifically provides that there is no duty to supplement proper responses with information later acquired. Exactly what was improper about the discovery response is not clear.

Full post as published by Abstract Appeal on February 09, 2011 (boomark / email).