By: Randall Reder
For lawyers, the term “professional ethics” has a more specific meaning than what can be found in a dictionary or in an academically oriented law school class. “[E]thical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession.” Azar v. Garza, 138 S. Ct. 1790 (2018).
Members of The Florida Bar are professionally obligated to follow the Rules of Professional Conduct, which are codified in the Rules Regulating the Florida Bar. See The Florida Bar re R. Regul. The Florida Bar, 494 So. 2d 977 (Fla. 1986). These rules largely track the ABA’s Model Rules of Professional Conduct, although not exactly.
The Rules are not simply general statements and phrases recommending good moral conduct. They contain specific guidance on such matters as conflicts of interest and communications with clients and third parties. Therefore, every lawyer should thoroughly review the Rules on a regular basis as well as any rule amendments, to be familiar with the conduct permitted and prescribed by the Rules.
For purposes of appellate practice, one of the most critical issues that practitioners face is to determine whether to file a notice of appeal, petition, or notice to invoke discretionary jurisdiction, and to do so in a timely fashion. Attorneys should ensure that filing an appellate court proceeding is not frivolous. See Schwades v. America’s Wholesale Lender, 146 So. 3d 150, 151 (Fla. 5th DCA 2014); Fla. R. App. P. 9.410(a) (providing that after 10 days “the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other document that is frivolous or in bad faith”); see also Fla. R. App. P. 9.300, 1997 Amends. (“Courts have the inherent authority to quash frivolous appeals[.]”).
The second most critical step is deciding which remedy to use. In some situations when it is not clear which remedy to use, attorneys have filed in the alternative or separate notice and petition. In situations like these, the Florida Rules of Appellate Procedure provide a safety net; if the remedy sought is incorrect the proceeding will be treated as if the correct remedy was sought. Fla. R. App. P. 9.040(c) (providing that if an incorrect remedy is sought, the proceeding will be treated as if it sought the correct remedy).
For appeals of final orders, the attorney “must designate those portions of the proceedings not on file deemed necessary for transcription and inclusion of the record” and must serve the directions on the court reporter or transcriptionist. Fla. R. App. P. 9.200(b)(1). If there was no court reporter at the hearing, the attorney can prepare a “Statement of Evidence or Proceedings,” in compliance with Florida Rule of Appellate Procedure 9.200(b)(5). As many appellate attorneys know, filing a transcript is important for the appellate court to have a full review of the proceedings below. There is a potential pitfall in not filing a transcript of the hearing or a statement of evidence or proceedings, besides the appellate court simply affirming the order under review. For example, appellate courts have admonished frivolous and misleading arguments related to the lack of a transcript. Cosner v. Park, 178 So. 3d 964, 964 (Fla. 4th DCA 2015).
Another consideration that a practitioner must be aware of is the possibility of appellate attorney’s fees, especially because fees may be awarded even after a notice of voluntary dismissal is filed. See Ag. for Healthcare Admin. v. Bayfront Med. Ctr., Inc., 145 So. 3d 888, 889 (Fla. 1st DCA 2014) (holding that the appellate could not avoid its obligation to pay appellee’s attorney’s fees by filing a notice of voluntary dismissal after issues had been fully briefed). But see Sanchez v. State Farm Fla. Ins. Co., 997 So. 2d 1209, 1210 (Fla. 3d DCA 2008) (denying a motion for appellate attorney’s fees when the record reflected “de minimis” activity between the filing of the notice of appeal and the voluntary dismissal); Braxton v. Grabowski, 125 So. 3d 936, 938 (Fla. 2d DCA 2013) (noting that absent precedent the court would agree with Sanchez but court was constrained by precedent and certifying conflict with Sanchez).
Section 57.105, Florida Statutes also provides a mechanism for sanctions for frivolous proceedings. “The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities.” Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 505 (Fla. 1982). In In the Interest of A.T.H., 180 So. 3d 1212, 1215-16 (Fla. 1st DCA 2015), the First District stated:
It is well settled that appellate courts can award appellate attorney’s fees under this provision [section 57.105]. See Boca Burger, Inc. v. Forum, 912 So. 2d 561, 570 (Fla. 2005); Waddington v. Baptist Med. Ctr. of Beaches, Inc., 78 So. 3d 114, 117 (Fla. 1st DCA 2012). A finding under section 57.105(1)(a) or (1)(b) is “tantamount to a conclusion that the claim was frivolous when filed or later became frivolous.” Eastern Indus., Inc. v. Fla. Unemployment Appeals Comm’n, 960 So. 2d 900, 901 (Fla. 1st DCA 2007) (citing Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520 (Fla. 1st DCA 2003)).
(Emphasis added).
Note that where an attorney asserts a good faith attempt to change an existing rule of law, that party is not subject to attorney’s fees under section 57.105. See Jones v. Charles, 518 So. 2d 445 (Fla. 4th DCA 1988). In fact, Rule 4-3.1 of the Rules Regulating the Florida Bar tells members that they may advocate “for an extension, modification, or reversal of existing law” so long as the argument is made in good faith.
But where there may be a violation of the Rules Regulating the Florida Bar, appellate courts may refer the issue to The Florida Bar or the local professionalism committee. And, in recent years, the Florida Supreme Court has given notice to the members of the Florida Bar that it is moving toward harsher sanctions than in the past. This is all something that practitioners must keep in mind while advocating for their clients.
There have been some recent changes to the way civil attorneys practice law. In May 2024, and again in December 2024, the Florida Supreme Court revised the Florida Rules of Civil Procedure. These modifications contained many changes, major and minor. As many know, these changes took effect January 1, 2025. Many of these new amendments have potential pitfalls for sanctions, and every attorney needs to carefully read and study these rules to best advise their clients moving forward.
Finally, and importantly, attorneys admitted to the Florida Bar must now complete a 2-hour CLE ethics course every cycle to remain in good standing and eligible to practice law. This requirement applies whether you have practiced law for one year or thirty years. The course is free and available through your Florida Bar web portal.
In all, appellate practitioners have a lot to juggle. Practitioners should keep these issues in the back of their minds while advising clients on potential appellate remedies, strategizing arguments for appeal, and pursing appellate relief.
Randall O. Reder graduated from FSU Law School in 1978. He was taught appellate law by Chief Justice Arthur England, interned with Justice James C. Adkins, and was research assistant for the dean of the law school Joshua Morse, III. In 1979 Mr. Reder clerked for Justice Joseph A. Boyd, Jr., who served as Chief Justice 1984-1986. Justice Boyd and Randall Reder authored A History of the Florida Supreme Court of Florida, Tallahassee: Florida Bar, 1983. Upon Chief Justice Boyd’s retirement, Mr. Reder returned to Tampa and established his law practice as Randall O. Reder, PA. Mr. Reder is a contributing writer of The Supreme Court of Florida and Its Predecessor Courts, 1821-1917 (University Press of Florida 1977). Mr. Reder is a charter member of the Florida Bar’s Appellate Law Section. Mr. Reder now resides and works remotely from Savannah, Georgia.
