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"Holland & Knight is in the process of redesigning the firm's marketing materials," Alltop said in the statement. "The look and feel of our Web site will be compatible with the new marketing materials, which will not incorporate the use of models as a design element. When our existing Web site was redesigned in 2007, firm management decided to use models rather than our own lawyers so as not to divert our lawyers' time from serving our clients."

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The disappearing associate

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 The number of employees affected in the Tampa office was not immediately clear.

 Word of the layoffs created a buzz among local lawyers and legal
blogs. Late Thursday afternoon, the company issued a statement saying
70 lawyer and 173 support positions had been eliminated. The firm did
not say how many layoffs were in Tampa and did not name any affected
employees.

 Cuts were based on which practice sectors are shrinking and not likely
to recover quickly and which are growing, the statement said.
Employees who were laid off will be offered separation packages, a
continuation of health care benefits and job placement assistance, the
law firm said.

 Michael Sasso
msasso@tampatrib.com
http://www2.tbo.com/content/2009/feb/13/sp-law-firm-holland-knight-lays-off-243/news-money/

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In client surveys about their concerns about lawyers, excessive fees and dishonesty in billing practices are near the top of the list of client concerns. Empirical studies suggest that a majority of lawyers who bill by the hour engage in dishonest billing practices at least occasionally.

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Adolfo E. Jimenez, the partner in charge of recruiting at Holland & Knight, was surprised when the midlevel associates survey published by The American Lawyer magazine ranked the firm so low.

The firm finished 142 out of 175 firms in satisfaction nationwide behind such firms as Greenberg Traurig; Hunton & Williams; Edwards Angell Palmer & Dodge; Morgan, Lewis & Bockius; and White & Case.

The firm finished 73rd of 75 firms in New York, 21st of 22 firms in Chicago and 56th of 59 firms in the District of Columbia.

The bleak numbers were for a firm that takes pride in creating a friendlier working environment than most large law firms. On its Web site, Holland & Knight touts its commitment to pro bono work, diversity and a balanced work-life program.

"We were very disappointed where we ranked nationally," Jimenez said.

The good news came in Miami, where Holland & Knight finished first among six firms in associate satisfaction. Jimenez characterized that as "great news."

A Miami associate wrote on the magazine survey that Holland & Knight's Miami office was characterized by "friendliness and [a] pleasant working environment" and was "a great place to work." The American Lawyer is an ALM Media affiliate of the Daily Business Review.

Jimenez said that there are several factors that make the Miami office stand out.

"We are a dominant player," he said. "We are significant, yet our size allows for a lot of interaction between partners and associates, a lot of opportunity for quality work."

David Shahoulian, an associate in the firm's litigation department in Miami, agreed.

"It doesn't hurt that we have always been one of the busiest offices," he said. "We have a lot of clients. We bring in a lot of money."

Shahoulian said the culture of the Miami office also stands out.

"We seem to have a nice culture here in this office, and that same kind of culture is not in some of the other offices that seem to be dissatisfied," he said.

But associates elsewhere submitted scathing comments about their employer.

"Our office [Tampa] is a miserable place to work," an associate wrote. "There is no leadership, and those in charge are completely unresponsive to associate needs."

Another associate said, "Several partners in Chicago have made disparaging remarks [about] the balanced-life or part-time programs and make it difficult for women to have families."

A New York associate wrote that partners give "lots of lip service to diversity and flexible work schedules without real action to retain these talented lawyers."

An Orlando, Fla., associate said, "Historically, our firm was a large law firm that respected the individual, family and community. Over the past couple of years, our firm has begun to mirror other large firms in terms of profit motives."

Several associates also expressed dissatisfaction with the firm's handling of the situation involving partner Douglas A. Wright, who was promoted to chief operating partner in Tampa in 2005 but resigned that position weeks later after news reports surfaced that nine female lawyers had accused him of sexual harassment.

"He got a slap on the wrist and then got promoted. Brilliant," a Los Angeles associate observed.

In an age of expanding national and international firms, it's not unusual that associates in different places would have different levels of satisfaction, said Joseph E. Ankus, a legal recruiting consultant based in Weston, Fla.

"It's very difficult to stereotype what it's like to be at any particular firm," he said. "These firms, they turn into monoliths, and I think to some extent culture becomes individualized and regionalized to whichever office you tend to be in."

Holland & Knight took the results of the survey seriously, and firm leadership has tried to address some of the issues raised by the associates, Jimenez said.

Holland & Knight has tried to better focus its professional training and improve mentoring and communication in its offices since the survey was issued last August, he said.

"Both in Chicago and New York, the level of communication that's taking place is much greater," he said.

Jimenez said firm leaders also have tried to expand their travel to other offices.

He noted the survey was taken just before Holland & Knight decided to raise the salary of first-year associates to $125,000 in Miami and $145,000 in New York. The firm just finished its best year financially, Jimenez said.

The firm recently announced it was stretching its partnership track from seven to eight years -- a change Jimenez said was unrelated to the survey results.

An Orlando associate wrote in the survey that the firm needs "better communication on how to make partner and once achieved how to make equity partner."

The firm currently has 669 partners, 372 associates and 95 senior counsel.

Most major firms aim to have "less partners and more associates" than Holland & Knight because associates "are getting paid their compensation, and everything else that they return above their cost is profit that gets distributed to the shareholders," Ankus said.

By comparison, Miami powerhouse Greenberg Traurig had 738 partners and 705 associates, New York-based Weil, Gotshal & Manges had 304 partners and 829 associates, and New York-based White & Case had 396 partners and 1,277 associates last September, according to The National Law Journal, another ALM Media publication.

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The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.  Source

The Florida Bar v. John L. Scott

The next case for the oral argument this morning is the Florida Bar versus scott. It is my understanding that we have two cases which are consolidated here, and that you all have worked out the manner in which you are going to proceed. Is the florida bar going to proceed first?

Yes, your honor.

Okay. You may proceed.

May i be seated, your honor?

Yes, please.

May it please the court. Good morning, my name is edward iturralde. I am here before this court to ask that the referee's findings of fact be accepted but not his recommended 18-month suspension with reference to mr. Scott's misconduct. Mr. Scott, number one, engaged in sexual misconduct with his client, gloria lee. The record reveals that, on october 22, ms. Lee went to his office to discuss hrs termination of rights proceedings against her son. She went in the morning, with her husband and was asked to return in the afternoon. When she returned in the afternoon with $1,000 that she had borrowed from her mother-in-law, mr. Scott asked the husband to step outside. When the husband stepped outside he asked ms. Lee, how bad do you want to win this case? She said i will do anything f i have to pay $20, $25 for the rest of my life, i will do it. He unzipped his pants, approached her, had he erection, was fondling himself. Grabbed her head, pushed it forward, and got semen on her face and blouse. She left, distraught, after wiping herself, was made to return by her husband, to get a receipt for $1,000 that had been paid. The husband knew something was wrong. She was obviously very upset. She wouldn't tell him why. The young child was in the backseat of the car. Later on that night, she told the husband and he was very upset and they decided to go see the mother, who had given them the money. They eventually went to see another attorney and ended up in law enforcement. Law enforcement, with their consent, asked if they could put a microphone on her and asked if she would go back to mr. Scott's office and she did. On october 28, she went, these conversations were recorded and they were later france kribd. -- transcribed. Here, and i apologize to the court, but i am quoting from the record, amongst other conversations, mr. Scott said "do you want to success my congress", and he implied that doing so might make him work harder. He waxes and wanes, maybe it will help me work harder on your case and said you still have to pay me but i am already giving you a discount. During this october 20 conversation, she said i can't do it. My father repeatedly raped me, and i can't do it. I don't even do it to my husband. I can't do it.

Let me ask you this. I think we know the facts. Why do you think the referee recommended 18 months, instead of disbarment in this case? It is pretty grievous case, as you are making the point. Why do you think there was this particular recommendation?

Yes, your honor. Obviously i could never know. My suspicion is perhaps the mitigating factor he found, of mr. Scott's alcoholism. He did cite several cases that reflect a discipline proportionate to what he imposed here, in somaha, but the facts in somaha, there was mere touching and photographing of seminude. It wasn't personal parts. It wasn't downright sexual, although there were overtones or undertones of sexual content, and in somaha, he did impose a one-year suspension. He had some other cases with life suspensions.

Hasn't the referee, in the past, treated alcohol as a sickness and as mitigating factor in discipline before? Isn't this what the referee was doing in this case, you gather?

Yes yes, sir. I think that is correct, and i think this court has found alcoholism to be a mitigating factor as well. However, while this court has said it is a mitigator, it is not an excuse t doesn't give you free license. It doesn't mean you are beyond discipline. Had this person in the past, although they have demonstrated the mitigating circumstance of alcohol.

What was the disciplinary history of this person?

He had one minor misconduct in 1992. It was a bankruptcy case, and, in which he had not communicated with his client and did not proceed diligently in that matter, and, when asked by the grievance committee to provide certain documents to substantiate the fee that he had earned, he was unable to provide those documents. He stated that it was due to his secretarial staff and he received a minor misconduct with admonishment.

What in this case, if any, of any previous relationship relationship between this lawyer and this client, personal or professional?

There was evidence -- right. She had visited mr. Scott previously, in regard to her other child. Her other, older -- i believe it was the older child, and i could be mistaken, but her other child had significant psychological problems, and she didn't know what to do. He had attempted suicide. He had run away from home. He was shop lasting. -- shoplifting, and she went to see mr. Scott for a $25 consultation. What do you think i should do with my son, and after a conversation, i believe they reached an agreement that, if you can't handle him and he has all these major psychological problems, maybe you should give him duress, and they had the resources to do. That she testified that she thought mr. Scott was her attorney and he made it very clear that it was a one-time $25 representation fee and the representation was over. There was, also, evidence that ms. Lee came back to him. That was sometime after october 1, because it was regard to an automobile accident case and a police report for an automobile accident case, which was introduced into evidence, dated october 1, so she went back to see him about this automobile accident case. He testified that he did not retain her, that he thought it was a sham. She testified that he told her to go get a neck brace and to get estimates and so forth, and she thought, she received the contract. She signed the contract. There was no evidence that mr. Scott had ever signed the contract, and the representation was terminated officially on november 11, when mr. Scott delivered a letter to her, indicating that he was returning her records and wasn't able to proceed with the case. According to mr. Scott, he terminated the -- never initiated an attorney-client relationship. There is, also, testimony by mr. Scott, which was not discussed by the referee and apparently did not believe mr. Scott, that at some point in time between the $25 consultation case and the automobile accident case, that on a date, on a thursday when his office was closed, and the lights were off, that she came and knocked on the window of his office. That he went up to see her, and his words, she offered and i accepted, meaning that they engaged in sex, because she was so appreciative of the advice that he had given her in regard to her son. There was no corroborating evidence to that, other than mr. Scott's testimony. In fact, the time line would seem to indicate that there was very little time for that to have happened. The child was signed over to hrs on september 30, 1997, and that document is in the record.

Excuse me. Go ahead.

Very briefly, you haven't mentioned the contempt of court issue?

No, sir, i have not. Not yet.

And how did that play into this?

Well, of the three things, generally, he has been accused of, the sexual misconduct, the lying about the sexual misconduct and the contempt of court, obviously the contempt of court is the lessee egregious, but i think mounting evidence is building a pyramid upon which this court could, should do nothing else than disbar mr. Scott. I discussed the facts. If you would like me to. I wasn't sure what the question was.

You are in your rebuttal. Thank you, counsel. Mr. Scott.

My turn?

I appreciate you all letting me come here today and this is the first time i have ever appeared before you all. I don't know really know what i am saying or doing, so if i say or do something wrong, please correct me. I was first denied an oral argument. I filed a motion for rehearing, and for some strange reason it was granted, and i appreciate it because i came here to tell the truth. There are two parts to this case. Now, i think i am supposed to look at this clock, right?

Right.

The --

The yellow light will come on and as i understand understand the way we are proceeding, the florida bar is then going to argue --

Ten minutes and then reserve fi. Yes, sir. Thank you. -- five. Yes, sir, thank you. This woman came to me in august. She had been presented a proposal by the department of family and children, to terminate her oldest son's parental rights for her oldest son. Apparently he had psychological problems. We talked about it. I, at that time, had a basic $25 consultation fee. Okay. We discussed it. She decided that she could not take care of the child, and she left, and i explained to her profusely that it was the end of my representation with her. Now, at that time in my life, my secretary at that time, i did a lot of title work, a lot of real estate work respect and on thursday afternoons and some days all day thursday, she would be gone to the court houses, doing title work, but i would go down there and work on the books and everything, so sometime between this august date and approximately august, october 1, this woman knocked on my door. The lights in my office were off. My office was closed. I own my office outright. Okay. When it is closed and the lights were off and the door is locked, it is nobody's business what happens in there but mine, because i own it. Not the florida bar. Not the supreme court. Anyway, this lady knocked on the door. I went to the door, because a lot of my friend there, in town, happened to know that sometimes i am there doing my books or something there, even though the lights are off. This woman came in, and as ms. -- as mr. Ity you are alleged' very gently said -- mr. Iturralde so gently put it, i accepted. I am ashamed of it, because my mother had just died. I had had a stroke and a serious blood clot a couple of years before, and had not, to be honest with you -- i don't know how to put this gently -- had not been with a lady for a while. This woman offered and i accepted, but i was not -- i did not represent her at that time. Okay. Then she came back, about october 1 or a little bit after that. She had had an automobile wreck. An uninsured motorcyclist had bumped into the back of her bumper. She came into my office with a neck brace on. She had somehow talked a doctor into getting one. She took it off and laughed and said, here, we will make some money on this. And i said, you know, i don't do that. I don't handle fraud cases. I said are you hurt? She said, well, i don't know. I don't think so. And i said, well, i don't want to have anything to do with the case. I did do her a courtesy of giving her some medical release forms. I said what you need to do is, you need to go see a doctor, really, and you probably have uninsured motorist coverage. --

Let me get this straight. Up until this point, was she ever a client? Did you ever consider her a client?

No, sir. My secretary, who had worked for me for six years at that time, when she first came in the office, she had called her in advance, in this first part of october, okay, and she had called her and told her what it was about. It was about a automobile case, and my secretary had worked for me for so long -- yes, sir.

In any of your dealings that you ever had with her, did you ever consider her a client?

No, sir. I considered her a client in the last part of august, when i discussed, with her, the termination of her parental rights with her oldest child, and then i considered her a client on the afternoon of october 22. She and her husband, which i didn't find out until then that she was married, but she and her husband came in to see me, on the morning of october 22, and i told them that i would represent them, because the department of family and children were attempting to terminate the parental rights on the second child. But that i would need $1,000 fee. They came back on the afternoon of october 22. There were five people who were there in my office.

Is this the period when it is represented that you toll the husband he would -- you told the husband that he would have to live and she would stay in?

No, sir. There were five people. Four of them testified at the trial, including my secretary at the time. One of them by affidavit at the grievance committee. He was sick in indiana and couldn't appear personally. There were five people in my office at that time, and they all testified, my secretary being the main one, robinted well, that she never -- robin tidwell, that she never left the front of my desk. Bran forward is a town of 4,000 people. I am a country lawyer. I have a little tiny office, and my secretary testified, plus four other people in my office testified, either personally by affidavit or at the trial, that this woman, on the afternoon when she made the complaint and she said this happened, and she testified in her complaint and said this happened in the afternoon of october 22 that i sexually abused her, and my secretary and these other people said that this couldn't have happened, because my secretary and two of these two people were sitting in the front part of my office, and the other two people were sitting in my personal office.

But are you challenging the findings of fact by the referee at this point? Is that what you are challenging?

Yes, sir, and i know, as we say in the country, i am up against it, but i brought a 40-page brief here, and i can't go through that in 15 minutes. But i am asking you all, imploring you all to read it. This is the worst -- this woman is, was an admitted schizophrenic, who did not take her medicine, who refused to take her author a sin, because she -- her thorazine, because she didn't like the way it felt.

Let me put it this way. If we accept the findings of fact of the referee, why is the discipline in this case, why should it not be a more serious --

If you accept the findings of the referee, by god you ought to disbar me, because this referee came out and said, basically, that i had sexually abused this woman and done all these things and lied and done all this stuff. No. This is a case about facts. And like i say, as we say in the country, i know i am up against, because i don't think you all want to really consider facts. I know that that is not really what you all do. You really want to consider law, and i don't have a whole lot of law here, but i have got 40 pages of facts. I have got two police officers and the states attorney that admitted --

Mr. Scott, please. What about the tape?

The tapes? I will be honest with you, sir. Judge wells, i was a drunk then.

I would expect you to be.

I was a drunk then. On december 13, 18999, i -- december 13, 1999, i quit drinking and hadn't had a drink sense. I was drunk then. I had had a previous nonrepresentational sexual relationship with this woman. Two police officers that sent her to my office, tape-recorded, to get me to talk about sex. And she started it, and i did it and i said some filthy things, and some ugly things that i am ashamed of. Not because of you, but like i said a minute ago, because my mother taught me better, and i did wrong on december 13 or a couple of days before that. I looked at myself in the mirror and i said i don't like what i see, and i checked into a rehab center, and i haven't had a drink since. I go to the gym everyday. And i have rehabilitated myself. The bar didn't ask me to do that. The bar didn't help me to do that.

But you were representing her though, during the, in october of 1997, when the tape-recorded conversation --

When the tape-recorded -- yes, ma'am, when the dirty conversations -- i guess.

Is that -- how, in terms of those comments or remarks, are you saying, now, well, i did that, but i asked to be accused, because i was an alcoholic during that time?

I was drunk and i was alcoholic. I was sick, justice pariente. Yes, ma'am. I was a sick man. Alcoholism is a dreadful disease. Okay. I guess i will always be an alcoholic. We learn in aa that you, i guess you probably are always alcoholic. If i went out now and bought a bottle of liquor, it could be that i could again be drunk by tomorrow.

You are in your rebuttal on the cross-respondent's case.

Okay. I finished with my time?

Yes, sir.

Okay. Thank you.

Now, this is going to be your rebuttal and your statement on the other case, is that the way we are proceeding here?

I just thought it was going going to be rebuttal, and i will answer whatever questions the court has for me.

On my, on the sheet that i have, mr. Scott would have some additional rebuttal. Is that the way you are proceeding here?

Yes. That's correct. I filed, first, and then mr. Scott filed petition for review, so we are cross appealing each other. He does get the last word. He has the last five minutes.

Okay.

Mr. Scott just indicated that he voluntarily entered rehab and is going to aa and trying to take care of his problems with alcohol, and to what extent should we take that into consideration, when we are looking at the discipline, if there is to be discipline in this particular case?

I think you should look at it and i think the referee did look at it. But i think, at a certain point there is a line in the sand, where we say that is disbarment activity, and if you have just stepped over the sand, that line in the sand, you can weigh the mitigating factorors and say, well, alcoholism can bring you back, but when you have the sexual misconduct in this case, you double that over with the line about it in this case, and you add a little bit extra for the contempt in this case, the alcohol mitigation just doesn't fit the scales of justice back into line. You have 100 pounds on this side and maybe ten pounds of mitigation, and it just doesn't balance out, and that would be the bar's position. I understand that it is a mitigating factor. I accept that it is a mitigating factor. I agree that it is a mitigating factor, but it has to --

There, in the mitigating factor, and mr. Scott said whatever relationship he had with this lady started when she was not his client, and is that mitigation in this instance?

I do not believe so. I believe that is a fabrication on mr. Scott's part, and i believe that the judge found that to be a fabrication on mr. Scott's part. You find that the referee does not mention that testimony at all. He completely discounted it.

In terms of punishment, we have these acts occurring in 1997.

Yes, ma'am.

We are now in 2001.

Yes, ma'am.

And as far as the bar seeking the ultimate sanction of disbarment, meaning basically that we don't see that it is possible for mr. Scott to be rehabilitated, what is the bar's position that, once finding this out, instead of trying to seek a suspension, i mean, he was apparently practicing for over a three-year period, without any further incident, and the fact that he is now getting active treatment or had gotten treatment, again, sort of supporting this concept that the bar is seeking disbarment for an act that occurred years before. How do you respond to that problem?

With all due respect, your honor --

What i see as a problem. Maybe you don't see it as a problem.

No, your honor. It is a problem, but with all due respect, it is not just 1997. The sexual misconduct certainly was in 1997, but then in 1999, he lied about it to the grievance committee. In 2000 he lied about it to the referee, and in 2000 he got the contempt, so there is ongoing misconduct that is not just an isolated incident back in 1997.

But we have got to accept, for the purpose of our review of this competent, substantial evidence, that i guess ms. Lee testified one way and mr. Scott testified the other. He is telling us, again, as an officer of the court, that this didn't happen the way the referee found t the fact that someone says it didn't happen that way, how do we make the misconduct worse, because he doesn't admit to something that he says didn't occur?

Because it is not just a he said/she said. We have the tapes. We have the billing statement prepared by mr. Scott in response to the state attorney's office, which is exhibit 18 in the record, and in that billing statement, he puts in no charge for the initial consultation, which occurred in the morning of october 22, and he puts in, i forgot the amount of time, about a half-hour, i believe had, in the afternoon portion of it. If it occurred the way he stated why would he not bill her in the morning but bill her a half-hour in the afternoon, when it was such a short conversation that occurred in the vest buell of his office? He prepared that document, himself, on november 5, 1997, just a few days after the, these alleged incidents. He prepared it in response to the state attorneys office, where he was being, in the process of being prosecuted for a serious offense, which could affect not only his license but his reputation in the small community, and you know, there is, also, physical evidence, the receipts, which is exhibit 34 in the record. Those receipts show that the shores, the alibi witnesses, paid $1,000 to mr. Scott before the lease paid. These alibi witnesses, it is my impression and contention, left before the lees. The lees testified that, when they got there, they did see people waiting in the office, and they knew that mr. Scott had clients in the back. They went, with their kid, to get ice cream, and then they returned. That is why these alibi witnesses didn't see the lees. I understand that he has got a dispute with the evidence and the facts, but it is not just a he said/she said. There are physical evidence that dispute what he is saying.

So the state attorney prosecuted this immediately, in 1997?

Yes, ma'am.

The bar waited two more years to do something about it?

I don't remember exactly why that had not been prosecuted. I came into the florida bar in 1998 and inherited this case and we it took it to the grievance committee.

Do you agree that this is the worst of the worst situation? Again, in terms of public trust and confidence, for the bar to let something like this go, if they feel it was as egregious as now presenting, concerns me, but you are now bringing up that this second incident, the jacksonville incident, which you say wouldn't rise to the level of disbarment alone, could you just give us, did that occur after he was in treatment for alcoholism?

No, ma'am. That did not -- that occurred in i believe, 1999. He was scheduled for a trial on monday. He had picked the jury with judge kenon and the state attorney. He was told, along with the jury and the witnesses to return on wednesday, to perform the trial. On tuesday, he called his secretary and asked her to call -- i see that my time is up. May i finish this response?

You may complete your statement.

He told the secretary to call the office, and inform them that he was having a heart attack. He did not go, however, to seek immediate attention. He went to jacksonville for a settlement conference, and then did not seek any medical attention until the following day. Mr. Chief justice: thank you.

Thank you. Thank you, your honors.

Do i have five minutes more?

. Mr. Chief justice: i believe you have got about four minutes more. Four minutes.

Three? Okay. Okay. I am tired of being called a liar. I have got a motto -- mr. Chief justice: mr. Scott, have you joined the florida bar program for alcoholism?

Yes, sir. I quit drinking --

Have you entered into a contract?

I voluntarily entered into a contract with fla in february.

February of what year?

2000. I quit drinking on december 13. I got out of the hospital, the rehab, vista rehab, on december 17. I had an aa sponsor the next sunday. I got out on friday. I had a sponsor that sunday. I started going to aa meetings twice a week, and then i found out about fla, and i joined them in either january the next month or february, the first of february. I can't remember the exact date. And i have called, every single day, to the number, and taken -- sorry -- an urine test, when required, and apparently done okay. I haven't had any complaints. Ill like to make a couple of -- i would like to make a couple of comments, if i could. I drafted -- the states attorney and the fdle agent, and the head of the detective department for the sheriffs department, investigated my case completely. They talked to every woman that i have ever known, probably, in the last 20 years. The best they could come up with was solicitation of prostitution is what i was charged with, and miss johnson admitted, under oath, it is in the trial record, and the fdle agent, mr. Daniel more or less admitted they had a really weak case. I am the one that drafted the pretrial intervention agreement. I am the one that put that part in there about that i would be required to go to a psychiatrist and i hired the most imminent forensic psychologist, dr. Cr

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05-1150_CommentsEdwardZebersky.pdf (31 KB)

IN THE SUPREME COURT OF FLORIDA
CASE NUMBER SCO5-1150
IN RE: PETITION TO AMEND
RULE 4-1.5(0(4)(B) OF THE
RULES OF PROFESSIONAL CONDUCT
/
RESPONSE TO PETITION BY EDWARD H. ZEBERSKY, ESQ.
This is a Response to the Petition filed by former Justice Grimes
seeking to amend the Florida Rules of Professional Conduct Rule
1.15(f)(4)(B). It is with great concern, as will be further discussed, that I
write this Response.
I have had an opportunity to review the petition along with the names
of all the lawyers that have signed the document. What strikes me right off is
that the petition is being filed by a paid lawyer (Former Justice Grimes) and
law firm (Holland & Knight) for the Florida Medical Association (FMA) as
well as other counsel that are directly employed by the FMA. What is even
more troubling is that a majority of the signatures on the Petition are from
either other members of the Holland & Knight firm or from paid lobbyists,
lawyers and consultants for the FMA or their allies. In short, after scratching
the surface of this Petition, it is clear that the document is
nothing more than an attempt by the FMA, through their paid lawyers and
allies, to eliminate any real responsibility for acts of medical malpractice. I
submit that this attempt creates a conflict of interest.
HISTORY BEHIND AMENDMENT 3
To more fully illustrate this point a brief history behind Amendment 3
is necessary. In, 2003, the FMA and its main insurance carrier FPIC launched
an all out assault in the Florida Legislature to effectuate caps on noneconomic
damages in medical malpractice cases. Some of the lawyers listed
on the Petition were either paid lobbyists or volunteers for the position taken
by the FMA during the 2003 sessions.
After the regular session and several special sessions, a cap on noneconomic
damages was eventually passed and signed into law by Governor
Bush. The cap was larger than what was advocated by the FMA and there was
a huge grumbling amongst the doctors that they should go on the ballot in
2004 to effectuate a hard cap on non-economic damages. The doctors
eventually decided that instead of going forward with a non-economic damage
cap, it would attempt to cap the amount of attorney's fees that could be paid in
a medical malpractice action.
The reason for this change is simple; in 1986 and 1988 the doctors had
tried a cap on non-economic damages and lost. As such, rather than
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fighting an uphill battle with the public by directly capping damages, they
would go forward with a simple notion to cap attorney's fees. By capping fees
the hope was that it would become financially infeasible for a qualified
malpractice lawyer to accept a complex malpractice case on a contingency fee
basis.
The slogan for the Amendment 3 Campaign was "enough is enough"
and their campaign was nothing more that an attempt to smear the legal
profession and especially trial lawyers. Clearly this worked as Amendment 3
passed by almost a 2/3 majority. However, the goal of the campaign was not
to put more money in the client's pocket, but to make it near impossible for a
lawyer to accept a medical malpractice case on a contingency basis. This way
the doctors would achieve their main goal; limit the ability for a person to
seek redress for medical malpractice.
Former Justice Grimes was hired by the FMA as its lawyer throughout
the Amendment 3 process. Indeed, he appeared as counsel of record before
this court with respect to the constitutionality of the amendment language.
Similarly, he was hired as counsel to oppose the constitutionality of two
amendments (Amendments 7 and 8) which effected doctors.
Based on the history of Amendment 3 and the forces behind the
amendment, I submit that this Court should look at the Petition as little more
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than a thinly veiled attempt to effectuate the purpose behind the FMA's main
goal; eliminate any meaningful access to courts to redress medical malpractice
injuries.
PUBLIC POLICY CONSIDERATIONS
The Florida Bar has an independence that is not shared by many
professions in the State of Florida. The Bar polices its own for violations and
creates its own rules for professional conduct. There is little
dispute that this
type of governance has worked very well for a very long time. This Petition,
which is being pushed by people that have a conflict of interest based on their
or their firm's involvement with Amendment 3, strikes at the very heart of the
independence that the Bar has enjoyed over decades. If this petition is
granted, the FMA will have succeeded in influencing Bar governance and will
surely open the floodgate to future attempts by interested lawyers to
undermine the independence of the bar.
Another policy concern is whether this Court wants to restrict a
persons' ability to waive their constitutional right to contract with
a lawyer of
their choosing. Constitutional rights are waived every day. Miranda warnings
waive certain constitutional rights. The Right to Access to Courts is waived
everyday when arbitration agreements are executed. In fact, outside of life and
death circumstances it is difficult to find a constitutional
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right that cannot be waived voluntarily. Based on the goals of the FMA, which
is to eliminate medical malpractice lawsuits, it should come as no surprise
that the FMA's lawyers are asking this court to eliminate a persons' right, not
only to contract, but to waive their constitutional right.
CONCLUSION
This Petition process is fraught with conflict of interest. Moreover, it is
little more than an attempt by the FMA to interject itself into Bar governance
to effectuate what it could not in the legislature or through the Amendment
process; eliminate medical malpractice lawsuits. This Court should not
entertain this request which will serve to limit and not enhance the rights of
Florida's citizens and for those reasons and the reasons asserted by numerous
other lawyers the Court should deny the petition.
Respectfully submitted,
EDWARD H. ZEBERSKY, ESQ
Zebersky & Payne, LLP
4000 Hollywood Blvd
Hollywood, FL 33021
Telephone: ~2) 989 .333
Facs' ile: (9 4 /• 89 781
EDWA H. ZEBERSKY, ESQ.
Florida Ba No. 908370
Bv:
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished via U.S. regular mail this 23rd day of September, 2005 to: John
Harkness, General Counsel, The Florida Bar, 651 E. Jefferson Street,
Tallahassee, FL 32399-2300 and Stephen H. Grimes, Counsel for Petitioners,
Holland and Knight, LLP, P.O. Box 810, Tallahassee, FL 32302-0810.
EDWARD H. ZEBERSKY, ESQ
Zebersky & Payne, LLP
4000 Hollywood Blvd
Hollywood, FL 33021
Telephone: (95 4) 989-6333
Facsimile: (9 89-771
EDWA ~.b H. Z B ' SKY, ESQ Bar
No. ' i 8370
By:
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By Debra Cassens Weiss source

The District of Columbia Bar Counsel is seeking the disbarment of a former partner at Holland & Knight for allegedly forging signatures on an agreement for an easement.

Theodore Silva Jr. is accused of lying to the law firm and a client about the status of the agreement, then forging signatures and presenting the agreement to the client, Legal Times reports. The firm fired Silva in 2006 after the incident and reported him to the bar counsel, the story says.

Silva testified before a hearing committee that he didn't consider himself to be honest and trustworthy, according to the story. "I think that I can get over on everybody and that I can manipulate people, and that is what led me to this, is that I can pull this out of the hat and I did it a thousand times," he testified.

Silva's lawyer, Timothy Battle, is claiming his client's misconduct was caused by alcohol and cocaine addiction, depression and attention deficit hyperactivity disorder. Battle described the incident in a brief as a "single example of stupid conduct in an otherwise impressive and productive 18-year career."

Silva has also received a Jan. 31 reprimand (PDF) from the Virginia State Bar Disciplinary Board for failing to report a guilty plea to cocaine possession. The plea was vacated after Silva complied with court-imposed conditions. He is currently in a drug treatment program, Battle told the publication.

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A Johns Hopkins Hospital neurosurgery professor alleges he is out $20 million because the company hired to pay the annual maintenance fee for a Japanese patent of a pain-relieving drug failed to do so.

Dr. James N. Campbell is suing the Channel Island branch of Computer Patent Annuities, which specializes in managing intellectual property rights for its clients, in Baltimore City Circuit Court. The suit also names the law firm of Holland & Knight, which employed the lawyer who hired Computer Patent.

Attorney Steven E. Tiller, who is representing Campbell and his company ARC 1 Inc., estimated that the renewal fee was less than $1,000.

The complaint further alleges that the law firm continued to bill Campbell for maintaining the patent, even after it had been terminated.

Computer Patent spokeswoman Charlotte Presse said yesterday that she was not aware of the lawsuit, while Christina Calhoun, a spokeswoman for Holland & Knight, said she has not had a chance to look over the pleadings.

The complaint refers to the medication invented by Campbell as Clonidine. Tiller said the drug is used to treat neuropathic pain, which is caused by nerve tissue damage.

It is being used in the U.S. and has been very successful [without] the debilitating side effects that sometimes occur in patients with the more traditional treatments, said Tiller.

The complaint explains that Clonidine is unique, because it is applied topically, or to the surface of the skin, thus affecting only the targeted area.

According to the complaint, the medicine can potentially benefit millions of diabetics and cancer patients.

Discovering the drug involved years if not decades of experience on his part, said Tiller in reference to Campbell, who graduated from Yale University School of Medicine in 1973.

A Georgia lawyer obtained patents for Clonidine in the United States, Australia, Canada, Europe and Japan, the complaint alleges.

The Japanese patent, issued in 1998, was valid until 2011, contingent upon the payment of annual maintenance fees, the pleadings state.

Campbell's patent counsel, according to the complaint, hired Computer Patent Annuities to take care of the renewal fees and then joined Holland & Knight in 2001.

In May 2002, Curatek Pharmaceuticals, which acquired an exclusive license to the patents, directed the law firm to pay the Japanese maintenance fee, the complaint alleges.

Holland & Knight instructed Computer Patent to do just that, the lawsuit alleges, but the company failed to do so.

But, when Computer Patent sent a letter to the law firm in June 2002, noting that a payment for the patent was overdue, Holland & Knight responded that the fee was paid and asked the agent to note that in its records, the complaint alleges.

The lawsuit faults Computer Patent for not independently verifying the law firm's claim. Holland & Knight, in turn, is accused of not properly supervising the company it hired to maintain the patent.

Upon information and belief, Holland & Knight was aware of similar incidents, prior to this one, in which [Computer Patent] failed to pay maintenance fees on a patent, the complaint alleges, adding that the law firm did not have an adequate internal tracking system in place to ensure that maintenance fees were in fact timely paid.

Indeed, neither the law firm nor Computer Patent discovered the error within the one-year period Japanese law provides for reviving a patent, the plaintiffs allege.

Campbell, in fact, was billed for the renewal of the patent after it was already abandoned and terminated in 2003 and 2004, the complaint says.

Japan is considered the second-largest pharmaceuticals market behind the United States, Tiller commented.

I don't know what, if any, use the drug has in Japan as of yet, he said.

Curatek no longer holds any rights to Clonidine and the lawsuit states that Campbell is currently negotiating with potential licensees.

The abandonment of the [patent] has dramatically reduced the potential value of this patent portfolio, the complaint alleges.

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Reproduced below is a blog post about 'bill padding' from the US site, Legal Blog Watch. That is where lawyers say work took them longer than it really did, and so charge commensurately more, or even make up the fact that they did work, and charge for it. Sometimes I read articles like this and wonder whether lawyers don't think they live in a different world where, if they commit crimes, what will happen to them is that they will be dealt with by professional discipline. They think that, or course, because it's more or less true, unless you get caught stealing from your trust account.  But the criminality of time sheet crime should not be allowed to be buried under anodyne euphemisms. 'Bill padding' sounds kind of cute, a necessary evil. It is a kind of newspeak. Time to do away with it. Let's call it 'rapacity fraud'.  It is tolerated by the profession in this sense.  There are generalised allegations of widespread bill padding.  Talk privately to costs consultants and they will tell you all about it.   But I have never heard of a firm which has even basic anti-fraud procedures to detect the practice.

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Posted by Ashby Jones

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