3d DCA Watch -- Judge Salter and Unchecked "Zealous Advocacy" Edition

Hi kiddies, I'm in such shock over this opinion by the 3d released this morning that I'm gonna dispense with my coffee-swilling niceties and get right to it:

Hernandez v. Gil:

Wow, wow, and triple wow. Judge Salter decided in this opinion to simply unload on appellant and his present counsel, Alba Varela, and instruct us all on what it means to be a "zealous advocate" AND ALSO an officer of the court, AND ALSO a professional colleague to your opponent.

You can and must do all three. Read the footnotes, folks, particularly footnotes 7 and 8. I really can't do the opinion justice, but here's a taste:

Zealousness, aggressiveness, and persistence are widely considered to be commendable qualities in trial lawyers. The Preamble to Chapter 4, “Rules of Professional Conduct,” in the Rules Regulating The Florida Bar, includes this statement: “As an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.” The “rules of the adversary system” include obedience to orders entered by a court of competent jurisdiction.

The oath of admission to The Florida Bar omits any reference to “zealousness,” but does, of course, prohibit an attorney from counseling or maintaining any suit or proceeding that is unjust, from disrespecting a court or judicial officer, and from raising any defense that is not “honestly debatable under the law of the land.” In this case, there could be no further “honest debate” or good faith argument regarding the Florida probate court’s directive. The order enforcing the GSA and affirmed by us in Hernandez II clearly admonished the reader that a violation of the order would invite sanctions “to be assessed equally against [Hernandez] and his attorneys.” Although Hernandez’s current counsel was not his attorney in 2006 when the sanctions order was entered, that very provision was restated in the 2007 motion for contempt and sanctions defended by his current counsel. As a result, current counsel’s plea that she did not represent the appellant for the last four years the case was pending does not excuse her decision to advance, again, arguments previously adjudicated and “finally final.”

Similarly, her assertions that her predecessor counsel failed “to highlight the inequities of this cause,” or that she thought she had negotiated a verbal settlement agreement with opposing counsel, do not excuse her decision to counsel her client to engage, and decision to participate herself as advocate, in continued direct disobedience of unstayed court orders.

We believe that this opinion and the monetary sanctions that will follow provide an adequate lesson on when to decline representation and to counsel a client to comply with a court’s directives. “Just say no” applies to some clients and matters, just as to drugs.

If anyone knows more about the background to this opinion, feel free to contact me directly.