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!