Recently I found myself in the position of having to file a 57.105 motion. Due to the circumstances, I served the safe harbor notice on every attorney that had a general notice of appearance filed on behalf of the opposing party during the case.
I do not believe 57.105 motions should ever be used as part of an attorney’s strategy. They are meant to limit litigation not founded in law or fact, and should be resorted to as a last resort always. In my 22-year career, I have filed this motion only a handful of times.
In this case, the circumstances seemed extreme.
It was a post-judgment matter. The initial trial was lengthy and high conflict. The other party made allegations of domestic abuse against our client which the Court were found to be untruthful. The other party spent over $100,000 on surveillance of my client that yielded no relevant evidence. In addition, the case was litigated in such a manner that our client believed the other side was trying to bankrupt him because the other party had unlimited resources.
When the other party filed a post-judgment motion for contempt, which sought to have my client incarcerated for six months (criminal contempt), for an allegation which our client denied, and, that if true, would have only resulted in civil contempt. Civil contempt does not provide for punitive incarceration.
This triggered my 57.105 safe harbor notice.
Of course I had vetted the legal issue before serving the safe harbor notice. There is not one case I could find that limits 57.105 relief to just the attorney who “signed the motion” as opposed to all attorneys of record. The statute authorizes relief against the offending party’s attorney(s).
A few hours after serving the safe harbor notice, I received a response that demonstrated the spectrum of emotional lability, and concluded:
“Lawyers who file frivolous section 57.105 motions like you have (against me) hurt the entire profession.”
The attorney attempted to make the point that even though he filed a post-judgment general notice of appearance, and never sought to withdraw or conclude representation, it was just a “technicality” and he was not responsible for the actions of other attorneys involved in the case.
I could not find any Florida law that supported his position.
This attorney threatened a 57.105 motion against myself and my law partner. Ironically, my law partner did not sign the 57.105 safe harbor notice.
From my perspective, if you file a notice of appearance which is not limited, you have a responsibility for EVERYTHING that happens in the case. And if you are part of a legal team that is filing motions seeking frivolous relief, you have skin in the game.
This email is being sent to over 1,000 family law attorneys in Florida.
I would love to hear your take and thoughts on the above. Please respond with a comment!
You requested comments about 57.105. I believe that the sanction should be limited to those attorneys that have responsibility for the actions taken, not simply shotgun any attorney who has made an appearance in the case. The purpose of the safe harbor provision of the statute is to have the attorney withdraw the offending material before it causes harm, so I would limit the sanction to the person or persons who caused the offending document to be filed. To file it against any attorney that is of record, to me, is unnecessarily aggressive.
Thanks for the feedback Laurence. Noted!
Good afternoon my friend:
Regarding your 57.105 issue… I know you already have looked at… Chapter 30… Family law actions.
An attorney can limit his representation in a family law matter to a particular proceeding. If he does he must file a notice to that effect, signed by the party as well. When the proceeding is completed, the attorney files a notice of termination of limited appearance, including the name and last known address of the party. Forms for a notice of limited appearance, consent to limited appearance, termination of limited appearance, acknowledgment of assistance by attorney and signature block for an attorney making a limited appearance have been approved and must be used. Rule 12.040 forms… 12.900 subsection B-G
However before going down a rabbit hole I am sure that they will file an amended motion for contempt to fix their obvious screw up.
Let me know what happens. Best regards, RMS
Offensive motion has already been amended.
The 57.105 was hardly frivolous as the offending motion has already been corrected, which is after all, the primary purpose of the safe harbor notice.
Word to the wise, file your notice of conclusion of representation promptly and if you’re really in on limited appearance, follow the statute precisely.
P.S. Does anyone else know of an attorney – there is one – who files 57.105s so routinely the j.a.s jokingly ask if it’s a 57.105 motion when you call to get hearing time on a motion with that attorney?
In the same vein as Mr. Smith’s above comment, these cites may help, (cites are from a Rule 11 motion for sanctions):
Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1421 (11th Cir. 1996) (Counsel who appear after the offending papers have been presented to the Court and advocate the positions set forth in those papers are subject to sanctions.)
Sussman v. Salem, Saxon & Nielsen, P.A., 150 F.R.D 209, 213 (M.D. Fla.1993) (“The reasonableness of the conduct involved is to be viewed at the time counsel or the party signed the document alleged to be the basis of the Rule 11 sanction.”)
Ferguson v. Ferguson, 504 So. 2d 541 (Fla. 1st DCA 1987) (“Rule 2.060(d) of the Florida Rules of Judicial Administration, … states that the signature of counsel constitutes a certificate that the attorney has read the pleading and that to the best of his knowledge, information and belief there is good ground to support it.)
Normally, I would agree the rules provide for it, but it is an aggressive move. I do believe certain circumstances could warrant it.
Your actions under the circumstances were warranted and appropriate.
Sometimes we need to become aggressive. Under the circumstances, I believe it was appropriate.