By Stephanie Reed Traband, Partner
The District Court of Appeal of Florida, Fourth District recently reversed an order that allowed a private litigant to weaponize the Rules Regulating The Florida Bar, which are designed to be ethical guidelines for attorneys.
In this case, our opposing counsel tried to use the guidelines against our client, who happens to be a lawyer and the defendant in this action. He unsuccessfully tried to get a prejudgment injunction or prejudgment garnishment of his attorney’s fees, which had been pledged as collateral for a loan targeted in the lawsuit. Normally, parties cannot freeze the assets of the defendant prejudgment without having an evidentiary hearing, having to post a bond, and considering issues such as a high risk that the defendant may leave the state. It is worth noticing that the bond is usually twice the amount of what is sought in the lawsuit. In this case, the plaintiff abused the ethical rules to avoid the need for all of that, simply because the defendant was an attorney. The 4th DCA found his strategy to be an improper weaponization of the ethical rules governing attorneys and an improper bypass of the rules of civil procedure.
According to the ruling, The Preamble to the Rules of Professional Conduct explains why the Rule was improperly applied in this case:
“Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached. In addition, violation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating a substantive legal duty.”
As the current health and economic crisis may fuel litigation, it is possible attorneys may increasingly find themselves as defendants. It gives me confidence to know that the ethical rules cannot be used to get around rules of civil procedure and statutes when lawyers become the defendants.