5th DCA Sanctions all Attorneys Whose Name Listed on Brief for Negligent Handling of Appeal

Hagood v. Wells Fargo, 38 Fla.L.Weekly D1437 (Fla. 5th DCA 2013).

* This is not a matrimonial case, but still germane to our practice.

When confronted with a the initial brief was based entirely on a false assertion of fact and was, therefore, frivolous the Fifth DCA issued an order mandating a response from the Appellant’s order as to why sanctions should not be imposed.

The attorneys filed separate written responses. The responses do not refute the fact that the initial brief was frivolous.

Craig L. Lynd

Craig L. Lynd

Attorney Craig L. Lynd asserted that his name was placed on the briefs because he is a partner at Kaufman, Englett & Lynd, PLLC and he might have been needed at oral argument. He claimed not to have reviewed the briefs or work on the case.

Angela M. Domenech

Angela M. Domenech

Attorney Angela M. Domenech asserts that, working remotely as a part-time employee of Kaufman, Englett & Lynd, PLLC she simply drafted the initial brief at Attorney Withers’ request, using the trial lawyer’s electronic notes. She claims not to have reviewed the record on appeal or the firm’s physical file, and she was not aware that the brief’s contents were false.

When she submitted the initial brief for Attorney Richard W. Withers‘ review, she asserted that she “made it clear” that she had not reviewed the motion for summary judgment or motion for rehearing.

Due to a gap in employment, Attorney Domenech did not see the answer brief or participate in the preparation of the reply brief.

Inexplicably, although she handled the oral argument for the firm, Attorney Domenech asserts that it was not until after oral argument that she realized her “draft” initial brief had been mistakenly filed with the Court.

Richard W. Withers

Richard W. Withers

Finally, Attorney Withers, admitted that “everything that went wrong with this case at the appellate level is my fault,” maintains that he relied on Attorney Domenech’s work and was not told by his paralegal that the brief prepared by Attorney  Domenech was a “draft” or he “would have read it a lot more carefully.”

Curiously, Attorney Withers’ response manifests a hindsight belief that his threshold error in this case was that he should have filed a petition for certiorari seeking to challenge the denial of the motion for rehearing, rather than a direct appeal.

Although the responses by the lawyers satisfied the Court’s concern that no intentional misconduct occurred in this case, they “evince systemic flaws in internal procedures, a lack of understanding of substantive law and rules of procedure, a lack of supervision by senior lawyers, and multiple acts of professional negligence that began in the trial court and continued through the oral argument.”

The left-hand-did-not-know-what-the-right-hand-was-doing defense is not acceptable. Even negligent violations of rules of procedure may justify sanctions.

Accordingly, the Court imposed a $1,000 fine on counsel, jointly and severally, to be paid to the Clerk of this Court within thirty days.

The Court also admonished all counsel that each attorney of record is responsible for the content of the entire document when his or her name appears on the document.

Moral of this story:  Each attorney who appears in a proceeding and authorizes his or her name to be affixed to an appellate brief or other pleading cannot avoid responsibility for the content of the brief by later claiming limited or no involvement in its preparation.

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One thought on “5th DCA Sanctions all Attorneys Whose Name Listed on Brief for Negligent Handling of Appeal

  1. While I understand the ruling, it could pose a conundrum for associate attorneys whose names are placed on the document at senior counsel’s direction without having benefit of review of the final document.

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