Tuesday, January 30, 2018

Discovery Sanctions

It has been a few years since I took the bench in Pensacola, over 16 of them to be precise. A great deal has changed in Florida workers' compensation over that period. And, perhaps there are things that recur. Through intent or inadvertence, possibly the same disputes and conflicts arise repeatedly? 

One area that seems to generate a fair amount of dispute is the seemingly simple task of discovery. Discovery is the process that litigants go through to learn more about the claims or defenses of their opponent(s). Once a dispute arises, the path of litigation is begun, and these two (or more) parties will travel that path for some distance. Some will travel to the end of the path, which is a judge deciding the merits of their claims and defenses. 

The majority will not travel the full length of the path. They will gain perspective, accumulate knowledge, and most will reach some resolution of their disputes before trial. How they glean that knowledge may be in a variety of ways, from examining documents, from interacting with a mediator who presents a different perspective, from accumulating more information through medical examinations and expert opinions. However information or perspective is gleaned, the accumulation of information often leads to resolution. 

Over time, the quantity and quality of information may change. The perspectives of the parties involved in the litigation may change. And, the influence of the passage of that time itself may change the way a party feels about the dispute. Time has a way of wearing people down sometimes. 

Discovery in Florida workers' compensation is governed by the Florida Rules of Civil Procedure. Not because The Florida Supreme Court (which adopted those rules) can dictate process in our administrative process, it cannot. But the administrative rules in this process have adopted the civil rules for this purpose. See Rule 60Q6.114. Anyone litigating a workers' compensation claim would be well advised to read Civil Rules 1.280 through 1.390, but ignoring 1.340 "interrogatories" and 1.370 "requests for admissions" as those are not used in workers' compensation proceedings. 

Among the most common discovery tools is the production of documents. In workers' compensation, an injured worker may want to review the employer's payroll records to assure a proper calculation of pre-injury wages, an employer may want to review medical reports the worker possesses. Not all of the documents that are reviewed will prove anything; they will not all be be relevant to an issue in the case. But, to determine whether relevant or not, the documents will have to be exchanged and reviewed. That is a large part of the process that is discovery. 

An important aspect of this exchange of information is that it usually all occurs with no involvement if the assigned judge. When the parties to a case cannot accomplish this exchange of information they may seek "relief" from the assigned judge by filing a motion. See Rule 60Q6.115(1). This may be because someone will not provide the information requested (Motion to Compel), or because someone does not believe they should have to provide some information (Motion for Protective Order). This may be to resolve any dispute that the parties have regarding discovery. The parties should discuss these disputes. If they find they must file a motion, they should provide details and legal authority for why an order should be entered favoring their argument or position. 

When the parties require judicial assistance with the discovery process, when a motion must be filed, that may involve expenses. Time is required to research and draft a motion regarding discovery. The Civil Rules contemplate that in Rule 1.380(4). This rule allows the judge to order a party to both produce the requested documents, or answer the questions, and to 
pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees,
Thus, the party that has to file a motion and seek involvement of the judge may be paid attorney fees and/or other expenses by the party (or counsel) that has failed or neglected to participate in discovery and thus required a motion to be filed. An important caveat of that "sanction" is that a judge may not order such payment (sanction) if the judge finds: 
(1) movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, (2) that the opposition to the motion was substantially justified, or (3) that other circumstances make an award of expenses unjust.
Because a motion is filed does not mean that the party filing it will be awarded attorney fees. The rule does not mandate the order of fees, but permits such an order. A party that fails to participate in discovery may be ordered to pay the attorney fees associated with compelling that discovery.  

However, such a sanction may be imposed only "after opportunity for hearing." Rule 1.380(4). So, before a party is ordered to pay such attorney fees or other expenses as a sanction for discovery, that party will have an opportunity to explain to the judge what circumstances or facts might support the judge making a different decision. An award of sanctions must involve an "opportunity for hearing."

And, that returns me back to my first day presiding over motion calendar in Pensacola. Motions back then were primarily set for hearings on Thursday afternoons. It was a busy docket, and lawyers would begin gathering during the lunch hour, prepared for a 1:00 start. On many Thursdays, there would be dozens of motions scheduled for hearing; they were busy days. 

A number of those disputes were about discovery, and in many there was a request for payment of attorney fees as a "sanction." In some, there was no excuse for having failed to produce documents. Certainly, people overlook things, forget, become overwhelmed. In those circumstances, a hearing is rarely required because when a motion is filed or when "a good faith effort was made" to obtain the documents, the other attorney would be reminded and the discovery would proceed. It is troublesome that people forget things, but we are all human and we have to accept that we forget things. 

In some, there was no excuse for the complained-of failure to comply with a discovery request. There had been a request for documents; the attorney had called and followed-up when they were not received; a motion had been prepared and served; a motion hearing had been noticed. And, after that series of reminders and passage of significant time, the response was often "my client has just not provided me the documents judge." 

In other instances, there are valid objections or reasons why discovery has not occurred. I remember one case vividly. I heard from one party about the simple request for documents they had sent, and their efforts to follow-up. The documents were not extraordinary or exotic. The requesting party had asked, reminded, cajoled, and plead. When the other party spoke, they described how Hurricane Katrina had struck their office, they provided a picture of a foundation where their office had been, and they said they had no idea where any of their former possessions were. The storm had wiped out their records, furniture, everything. They had no paper to produce. 

In some instances sanctions may be appropriate. In other circumstances, not so much. The argument over the Katrina-destroyed office has struck with me over the years. 

By the time the motion gets to a judge, there should have been discussion between the parties or attorneys. The rule requires that "a good faith effort was made." Hopefully, motions are not filed or needed when someone simply forgets, or when documents simply do not exist. And, hopefully everyone involved is dealing with one another in a professional and communicative manner. Parties and their attorneys need to speak to one another and discuss their differences before they proceed with a motion. Over years of litigation experience, I think that maintaining communication and mutual respect are among the most critical roles of an attorney. 

But despite those best efforts, sometimes it is necessary for a judge to become involved in a discovery dispute. It is important to remember that in such a dispute a party may ask for attorney's fees or other expenses as a "sanction," and that in some circumstances a judge may find that appropriate and grant that request, after the due process of an opportunity to be heard about that imposition of sanctions.  

The critical point is not that sanctions "will" occur. The point is that they "can" occur. When counsel and parties remain diligent and communicate with each other professionally, they may never be needed. Unfortunately, however, there may be circumstances in which they are necessary. When they are necessary, they should be specific to the behavior that is inappropriate, and should be "limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." Rule 60Q6.125(5). In other words, in those rare instances when sanctions are needed, they should be enough, but should be just enough to deter the behavior. 

Sunday, January 28, 2018

Volunteering and Participating

In November, WorkCompCentral reported an Officer Fights for Benefits for Injury Sustained During Charity Basketball Game, The litigation is in Alabama, which provides some uniqueness. But the issue of volunteer activity off-the-clock comes up periodically in many workers' compensation systems. 

The uniqueness in Alabama is that there is no administrative hearing process there. Workers' compensation claims in Alabama are heard by the courts of general jurisdiction, like other cases such as torts, criminal, family, probate, and more. Alabama may be the last such state without an administrative process in workers' compensation. Tennessee and Oklahoma made the transition to administrative systems recently. 

Whether or not an injury or accident is compensable in workers' compensation comes down in many jurisdictions to a two-part examination of whether the accident was in the "course and scope" of employment, and whether the injury "arose out of" that work. These were discussed in this blog in Police Officers and Course and Scope, and Volunteer and Scope. I received several contacts after Volunteer. Consistently, contacts after posts publish raise similar issues and alternative outcomes. And, sometimes they provide insightful perspectives.

The Alabama police officer case illustrates an interesting conundrum. This officer claims to have suffered a "career-ending knee injury," while playing basketball. That sentence alone might cause pause among some. What is the job of police officers? Playing basketball? Well, that activity might be seen in a variety of settings.

Last year, a Florida police officer responded to a noise complaint, Finding a group of kids noisily playing ball, the officer joined in. When the officer later returned for a rematch, he brought "backup" in the form of former NBA player Shaquille O'Neal, as CNN reported. There is no shortage of stories involving police officers engaging with youth and sports. See it in Wisconsin, New York, Michigan, and South Dakota.The New York officers did not have Shaq, but it is my favorite example just because it is unique. Some characterize these interactions as "community policing." They are actually "on duty" basketball games. Would an injury in that setting be treated differently?

But the situation in Alabama is slightly different. The Alabama officer was playing while off-duty and out of uniform, in "a charity basketball game" in 2015. There does not appear to be any dispute that the officer was in the game, or that he was injured. It is not uncommon for workers' compensation disputes to resolve around facts such as whether something happened (an "accident") and whether such an event caused the need for medical care or treatment (an "injury"). But in this instance, it appears the only real dispute is whether the officer was at work during this game.

That is a critical point. Workers' compensation is a system of benefits that provides medical care and wage replacement when someone is injured "on-the-job." Thus, the question raised in this case is whether the basketball injury in 2015 "occurred in the course and scope of" employment. The officer contends that it did, and his employer denies that. 

In a similar setting, a Florida policeman was not entitled to workers' compensation in 1983. The court there applied a "three part test" espoused by a commentator. Using that analysis, the court concluded the employer was not a sponsor of the game, and the city was not shown to be promoting either the game or the officer's participation. Uniforms were not provided by the city, the game was not during working hours, and "far more police officers did not participate in the softball game than those who did." So, the court concluded the officer did not prove the city "impliedly required participation" or "made the game a part of" the employment. Brockman v. City of Dania, 428 So,2d 745 (Fla 1st DCA 1983). 

Almost ten years later in Highlands County v. Savage, 609 So.2d 133 (Fla 1st DCA 1992), the court addressed another sports injury. This suffered by a teacher during a fundraising event. The court noted that the Florida Legislature had addressed recreational activity injuries by enacting section 440.092 in 1990. That section provides:
(1) RECREATIONAL AND SOCIAL ACTIVITIES.—Recreational or social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.
The court then analyzed the teacher's claim for benefits. It affirmed the trial judge's conclusion that this basketball game was not a recreational or social activity. But, the employer required the attendance at, and participation in, this event by teachers (such as the injured worker). The purpose of the event was "developing community awareness by requiring students to participate in a community service project." And thus, the court affirmed the conclusion that it was not social or recreational. 

However, the court continued, that even if the event were either social or recreational and subject to the exclusion of the (then) recently enacted exclusion, that the worker would still be entitled to benefits. The court noted that the evidence at trial supported both that the game was “an expressly required incident of employment” and that there was "a substantial direct benefit to the employer beyond improvement in employee health and morale.” Thus, even if a social or recreational event, the evidence supported it was a mandatory and beneficial (to the employer) social or recreational event. 

These two cases illustrate outcomes with which individual perspectives may rationally disagree. There is merit in the belief that off-duty police officers playing in a public athletic event benefits a town and builds community. There is also merit in the belief that a teacher (not a coach or athlete) is not acting as a teacher when engaged in a sporting event. Some would argue that because there is merit in the courts' analysis that they are "right," or that because there is merit in a different outcome that the cases are "wrong." 

The law struggles with these kids of injuries. The analysis illustrated, with or without section 440.092, is based largely upon decision making. Did the employer make the decision that an employee would/should attend, would/should participate. Did the employer directly, or implicitly, make the event part of work? The other element is the benefit to the employer. Was there or was there not some benefit to the employer? Arguably, both Brockman and Savage turn on these same elements, whether section 440.092 is analyzed or not. 

This subject is of course more complex in various settings. There are instances in which the evidence is more equivocal, there are disagreements about facts and conclusions. The net result, to some, is a decrease in the American paradigm of a "company" softball team. There are employers who now eschew such activity because of the potential that sponsorship and participation could lead to litigation as described in these cases. It is possible that the Florida statute makes the analysis simpler with its requirements "expressly required" and "substantial direct benefit?" But, that predictability is not enough to encourage some employers to have a "company team."

Notably, when there is doubt regarding compensability, then it is perhaps not uncommon for a 2015 event to be litigated in 2017 or 2018 as is playing out in Alabama. One seeming consistency across the country is that these disputes take time. And while they are resolved lives and livelihoods may be on hold. 

Thursday, January 25, 2018

Tennessee Exposure Lesson

A recent Tennessee Supreme Court case affirmed death benefits awarded to a widow. Holbert v. JBM Incorporated, E2017-00324-SC-R3-WC, is interesting as an illustration of occupational exposure. It is also an interesting illustration of the requirements of proving entitlement to benefits in workers' compensation. 

The trial court concluded that the widow had proven that her husband's death was caused by an exposure at work. She was awarded death benefits and medical benefits. Both the employer and widow appealed. The employer contended that causation had not been proven. The widow contended that claimed and awarded medical benefits should not have been subject to the Tennessee workers' compensation fee schedule.

The employee in Holbert was a supervisor overseeing construction of a steel building in Pennsylvania. A coworker testified that he and the employee left a casino together and that Holbert was complaining of being "chilly." As he did not feel well, Holbert waited in the vehicle "while the other crew members dined" that evening. The coworker testified that Holbert continued to suffer symptoms thereafter, and that it interfered with his work. 

Holbert presented at a clinic within days of these complaints beginning, and described symptoms including cough, congestion, headache, fatigue and chills." The clinic documented normal examinations of lungs and abdomen, and he was provided prescription antibiotics for a diagnosis of sinusitis. Days later a coworker took Holbert to the hospital. He was unable to provide the physicians there with a history, and deteriorated from critical condition to life support as he entered a coma. 

After an extended hospital stay, Holbert passed away. An autopsy determined death was caused by "acute gastric hemorrhage of a gastric ulcer" and a fungal infection. 

One physician testified at trial that Holbert was able at the time of his hospital admission to describe medical history including "high blood pressure and high cholesterol." He described his presence for work, but was "unable to give ... a detailed history of what he had been exposed to." The admitting physician testified that "no test exists to identify specific particles to which someone has been exposed." She testified that because she found no evidence of "infectious pathogens," then it was "reasonable to attribute" death to Holbert's "environmental exposures" at work. 

Another physician, specializing in infectious disease, evaluated Holbert during the same hospitalization. He concluded that Holbert's "illness and death were precipitated by occupational inhalation." This was based in part on various tests that were not successful in finding any "definite infectious etiology." The infectious specialist based his conclusion of occupational causation on Holbert's reported history of "breathing in grout and epoxy type substances at his work prior to the onset of symptoms." The specialist opined that "something" triggers an inflammatory response, and "that can lower your resistance to the point where then you become susceptible to other things .... " But, the specialist was unable to identify what substance Holbert worked with or inhaled. 

A third physician performed a review of medical records for the employer. He opined that the "triggering event" was an abdominal process, "which then affected other organ systems," and resulted in system failure and death. He noted that there was "no evidence of inhalational injury" found on autopsy. Thus, there was no unanimity among the physicians as to whether, when, or what Holbert was exposed.

Medical evidence from a physical shortly before Holbert went to Pennsylvania documented no complaints or symptoms. Holbert's family members denied him exhibiting symptoms before the trip, but a coworker at the employer described Holbert having symptoms "a nagging cough .... like allergies" prior to the trip. That perception was also described by one of the employer's owners. 

A co-worker in Pennsylvania described Holbert as "occasionally coughing and sneezing," but his "condition worsened after the casino visit." Another coworker testified that "he first noticed Decedent's symptoms after visiting the casino," and Holbert then looked increasingly ill each day. 

The Supreme Court noted that the "employee seeking to recover workers' compensation benefits bears the burden of proof," and that "proof of the causal connection may not be speculative, conjectural, or uncertain." However, the Court noted that Tennessee law requires that "reasonable doubt must be resolved in favor of the employee." In Tennessee, "benefits may be properly awarded to an employee who presents medical evidence showing ... the employment could or might have been the cause of his or her injury when lay testimony reasonably suggests causation." (Emphasis added). 

The Court also noted that because the death occurred before the 2014 statutory changes, it was "required to construe the workers' compensation law liberally in favor of an injured employee." In discussing the trial judge's analysis of the case, the Court noted that "ultimately, the trial court looked to the then-in-effect statutory directive to liberally construe the workers' compensation law," and "the judicial directive to resolve reasonable doubts in favor of the employee." On these two premises, the trial judge concluded "death was caused by workplace inhalation of some chemical that caused an allergic reaction that lead to the spiraling effect that lead to his death."

The employer essentially asked the appellate court to re-weigh the evidence, and to accept the opinions of its expert. They argued that the opinions of the other experts, regarding the existence of and extent of exposure were "speculative." because no evidence was presented as to "substance types, toxicity, and work environment." The Court declined to reweigh the evidence 

This case illustrates a common circumstance in workers' compensation cases. Witnesses have different perceptions and reach different conclusions. In this instance there were disputes about fact (was Holbert coughing before leaving for Pennsylvania) and opinion (did a work exposure result in the illness). Those disputes are usually resolved by the trial judge, and many appellate courts are reluctant to re-weigh evidence, see Reweighing Evidence and Appellate Review.

Was there a work exposure? Was there some exposure at the casino? To what substance was Holbert exposed? These questions were seemingly not fully resolved by the trial judge or the Supreme Court. And, that illustrates another somewhat common circumstance in litigation. Generally, one party or the other has the "burden of proof." That party has to prove the facts upon which they seek recovery or exoneration, damages, or workers' compensation benefits. 

The law in Tennessee used to require the court "to construe the workers' compensation law liberally in favor of an injured employee." This statutory language created a presumption of sorts in favor of injured workers. This is essentially a legislative determination that if all else is equal, then the injured worker prevails. 

The Tennessee Court referenced a change in Holbert, but better explained in Willis v. All Staff, No. M2016-01143-SC-R3-WC (2017). 
Tennessee Code Annotated section 50-6-116, which previously required a liberal construction of the workers’ compensation law, has been amended to now provide that the workers’ compensation statutes “shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory construction[,] and this chapter shall not be construed in a manner favoring either the employee or the employer.”
Last year, the Florida First District Court explained a similar Florida presumption, formerly in section 440.26, Fla. Stat., in City of Jacksonville v. Ratliff, 217 So.3d 183 (Fla. 1st DCA 2017). This was similarly "a presumption in favor of a claimant in “any proceeding for the enforcement of a claim for compensation.” But, Florida repealed that presumption, and enacted section 440.015, Fla. Stat. in 1990. That provision places parties in Florida workers' compensation proceedings on equal footing:
In addition, it is the intent of the Legislature that the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer.
Equal, that is in many instances, but not all. Florida has enacted presumptions regarding specific conditions and occupations. 

The effect of such statutory definitions are intriguing. Had Holbert been exposed (presuming that he was) in August 2014, instead of August 2012, the outcome in Holbert v. JBM Inc. might have been different. This is not because the evidence or the facts would have been different, but because the law would have been. The law in 2012 presumed the worker's injury would be compensable (related to work), but in 2014 the law no longer made that presumption. 

The reminder of Holbert, as illustrated by the Florida Court's similar discussion of section 440.26, is simply that the party provided a statutory presumption will prevail, absent proof to the contrary. And, appellate courts are unlikely to reweigh that evidence once a trial judge has made valid credibility determinations. 

Tuesday, January 23, 2018

Sleuthing Addressed Again

I recently noted issues with the independent investigation by a judge in The Sleuthing Judge. I have also previously written about the prevalence of appellate decisions citing such dubious sources as Wikipedia. That has become somewhat common. There are even experts advising attorneys on how to reference Wikipedia in appellate briefs. 

The Texas Supreme Court blog refers to Wikipedia favorably as "the largest single compendium of human knowledge ever assembled." Wikipedia is also accepted as a definitive authority by the Florida First District Court of Appeal, see Truje-Perez v. Arry's Roofing. Despite the awe of Wikipedia's size, the fact remains it is a compendium of thoughts and conclusions (opinions, perhaps instead of facts?) of a great many individuals, submitting and editing on their own, largely without standards, verification, or professional oversight. It may be large, but its authoritative nature is open to debate, despite it being relied upon by judges. 

The American Bar Association, a voluntary organization in which some 410,000 lawyers, law students, and others are purportedly members (note that I am citing Wikipedia for that membership size), recently entered the debate of judicial sleuthing with May judges search the internet for facts? ABA ethics opinion sees problems

The ABA concludes that it is appropriate for judges to conduct legal research, exploring legal theories and precedent, which was "not cited by the parties." Similarly, the Florida First District Court has held that the trial judge has an obligation to perform independent legal research, even when the parties to the case make unsubstantiated arguments and provide no precedent or authority in support of their arguments. In the Court's view, it is the trial judge, not the parties, that has the obligation to research and homogenize the potential legal authorities that could potentially support either party's arguments. 

However, the ABA ethics opinion concluded that a court "finding adjudicative facts” about a "case online is generally prohibited by the ABA Model Code of Judicial Conduct." See ABA Formal Opinion 478. The opinion draws a distinction and expresses "an exception" for judges to do such fact-finding or sleuthing online regarding "facts that are subject to judicial notice" under an applicable evidentiary rule or code "because they are generally known and not subject to reasonable dispute."

That phraseology seems similar to Florida's Evidence Code and rules, Section 90.202(11), which says a "court may take judicial notice of the following matters":

(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.

The ABA contends that "judges’ decisions must be based on evidence presented on the record or in open court." That conclusion is consistent with the legal concept of confrontation. Confrontation leads us to have evidence presented in an open hearing. Witness testimony can be subjected to the test of cross-examination, and a finder of fact can assess credibility and reach unbiased and impartial conclusions about what has happened, when, and where. As importantly, the "so what" questions can be addressed (what are the results, the damages that are needed to rectify the situation). It does not happen in back rooms or alleys, it happens in the sunshine, on the record, and everyone involved has the opportunity to speak to the issues and questions. 

The ABA contends that "judges should not combine the role of advocate, witness and judge," citing Model Rule 2.9(C) of the Model Code of Judicial Conduct. The Model Code, as the name suggests is a template or recommendation of this voluntary organization. Each state decides what its own Code of judicial Conduct will say, sometimes adopting the recommendations of the Model, and sometimes not. This was previously discussed in The Code of Judicial Conduct and Scouting.

The Model Code section 2.9(C) has not been adopted in Florida. It states:

A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

That appears to be a fairly clear statement that would apply to any "judge," not just a trial judge. Perhaps that language is broad enough to preclude an appellate judge from investigating Wikipedia (or Wikipedia-like) information on the internet, information that has not been debated in an open hearing and subjected to the prohibitions and restrictions on evidence. This would suggest that appellate judges should stick to the evidence in the record. 

The Model provides hypothetical situations, as well as some broad guidelines. The ABA contends that if additional information is needed to decide a case, then it "must be provided by the parties or the lawyers, or must be subject to judicial notice." And that if anything case-specific is needed, to "corroborate facts, discredit facts, or fill a factual gap in the record," then "it is improper for the judge to do the research." If the judge is seeking "background" about the parties or the subject of the case, then that data gathering and consideration "must be subject to the adversary process." 

If these are not true, then one could perhaps validly question what the purpose is of trial. Lawyers and parties work hard to prepare and present their case for adjudication. They will make strategic decisions about what evidence to adduce, what questions to ask, and what sleeping dogs to leave sleeping. When the judge begins independently sleuthing, researching and questioning, s/he is overriding those strategic decisions, focusing the case upon what the judge feels is important rather than upon what the parties have decided to bring forward for adjudication.

The parties' decisions and choices should be respected. It may be that the nature and quantity of evidence the parties have chosen is not enough to prevail. That is lamentable. But, that decision was the party's choice. When the judge seeks to explore different or further evidence, the judge slips the confines of adjudicator and becomes instead an advocate (and as the decision-maker, a powerful advocate indeed). With that adoption of the advocate role, the impartial and unbiased adjudicator role is abandoned, in whole or in part. 

The ABA suggests a second narrow exception to the broad sleuthing prohibition. It suggests that the judge may appropriately look "for general or educational information needed for a better understanding of a subject." However, that need for information or knowledge must be "unrelated to a pending or impending case." In other words, there is nothing wrong with a judge expanding knowledge, learning, reading, and growing. But not in pursuit of determining a particular case. 

The Model Code seems to support my earlier discussion of the inappropriateness of judicial sleuthing. However, a particular state code may or may not adopt this specific Model Code provision (2.9(C)). Is the absence of that provision from a specific state Code, such as the Florida Code of Judicial Conduct, demonstrative of a belief that such sleuthing is permitted? Or, is the absence of this clear prohibition instead evidence that state officials believe existing Code provisions already suggest or dictate the same non-sleuthing outcome?

It seems important to remember the overarching statement of Canon 3 of The Florida Code:
A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
And, Canon 2 of The Florida Code:
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities
Similarly, Canon 1 of the Model Code states:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Do these provisions direct one to the same conclusion of sleuthing that Section 2.9(C) of the Model Code? 

Is it possible to be a sleuthing judge, researching issues not raised or presented, and remain impartial? Are the suggestions of the Model Code of general assistance in this regard, or is the presence or absence of an adopted version of Model Rule 2.9(C) critical to the analysis? And, should the analysis be different for an appellate court than for a trial judge? Is it appropriate for appellate judges to unilaterally supplement the record (fill in missing information) with Wikipedia facts to substantiate its decision? If it is only appropriate when facts are not subject to dispute, then what benefit does Wikipedia provide anyway. If the fact is that well known, then why is it necessary to cite any source or authority?

The American judicial system must be respected. The people need to both understand what judges do and be comfortable in following their conclusions. That outcome is encouraged when judges stick to the role of adjudicator, when judges and courts let the parties try their case, and when dubious sources like Wikipedia are avoided. Academics and educators distrust it, and may even penalize a student for using it. And, despite that appellate courts proudly use it in support of their conclusions. 

Sunday, January 21, 2018

A Crook. A Cheat. A Thief

I recently wrote about a Florida attorney who was disbarred. It was a troubling tale of promises not kept, misrepresentations, and a Florida system that decided it would be better off without the attorney. Disbarment seems a permanent solution, but it is not always. There are provisions that allow a disbarred attorney to petition for readmission to The Florida Bar. It is perhaps not best characterized as "common," but it does happen. 

Then, in early December a Wisconsin case came to my attention through social media. The case is In the Matter of Disciplinary Proceedings Against Michael D. Petersen, Attorney at Law. 

The Wisconsin Supreme Court opinion was filed December 15, 2017. The Court suspended Michael Peterson for one year, based upon nine stipulated or agreed counts of misconduct. Mr. Peterson was hired by a father to represent a son accused of criminal conduct. There was an offer for a plea bargain, and the son accepted it based upon assurances by Mr. Peterson. Essentially, the defendant plead guilty to a certain charge, and Mr. Peterson led the client to believe that the charge would be changed or amended afterwards (to something less serious). That was not true. 

The father made repeated inquiries thereafter, and Mr. Peterson "repeatedly misrepresented" that "he was working" on getting "the charge amended." On one occasion, he represented that the amendment had been made. On another, he claimed to have the district attorney's written agreement to make the amendment. The attorney even provided the client with an email he said was received from the district attorney, but the district attorney "did not author this email." 

When later pressed, the attorney claimed that paperwork for the amendment had been prepared and submitted to the "judge for processing," which was not true. The client continued to press for results, and the attorney claimed that a stipulation had been submitted to the judge. Those statements were likewise untrue. When the client thereafter emailed for status on the change, Attorney Petersen responded that he was "waiting to hear from the court" and that the district attorney's absence was preventing progress. This was also untrue. 

The attorney later emailed the client from his personal email account (not his work email) with an attachment "entitled Order Amending Conviction and Sentence." The client could not open the attachment. The client therefore picked up a copy of the order from Attorney Petersen's office, and took it to the "courthouse to confirm it had in fact been entered." The clerk raised doubts, and contacted the judge's staff. The staff contacted Mr. Peterson who visited the courthouse, examined it, "but did not admit he had created it." 

Mr. Peterson later wrote to the judge "to explain the origins of the order." His correspondence "was not truthful and did not admit he had falsified the order." Mr. Peterson "suggested that the signature from [a] signed order had somehow been transposed in the copying process." He claimed that he had possibly "inadvertently created the order." He also insinuated that the client had perhaps created the signed order. That is an intriguing point, he insinuated his own client was acting inappropriately. 

The court referred the "possible forgery" to the police and an investigation ensued. The client thereafter met with Mr. Peterson and recorded their meeting. This documented ongoing lies, promises and claims that he was then working with the district attorney to correct as promised. In a later interview with police, "attorney Petersen denied that he had copied the judge's signature." The police then revealed that attorney Petersen's conference with his client had been recorded, and Mr. Petersen "ended the interview soon thereafter and said he wanted to speak to an attorney." 

Soon thereafter, Mr. Petersen admitted in handwritten letters that he "phonied a document to get" the client "off my back." Mr. Peterson was charged with contempt of court, plead no contest, and was convicted. The criminal complaint alleged nine counts against attorney Petersen. He voluntarily admitted to "his misconduct recited in the complaint and his assent to the level and type of discipline sought." That stipulation and agreement also included that "an appropriate level of discipline for Attorney Petersen's misconduct is a one-year suspension of his license to practice law in Wisconsin." 

It is a story of multiple untruths, a client mislead, resources and time wasted. In his defense, "Attorney Petersen's counsel indicated that Attorney Petersen had a difficult childhood as the child of alcoholic parents, with a resulting psychological or psychiatric factor at play." The Court acknowledged that Petersen "sought psychological treatment" while being investigated by the police, but that "there is no proof in the disciplinary case that a medical condition was causal of the misconduct." 

Some might conclude that his punishment was insufficient, including suspension of one year, paying the cost of the investigation, and repaying the client the fee paid for representation. Justice Bradley dissented from the decision and said as much. She noted 
Attorney Petersen's misconduct was egregious. He repeatedly lied to his client about the terms of the State's plea offer. He told his client that certain charges would be amended when Attorney Petersen knew this was untrue. He then falsified an email purportedly written by an Assistant District Attorney in furtherance of the lies and falsely reported that the judge agreed with the amended charges. It gets worse. Attorney Petersen apparently forged a judge's signature on a fabricated court order, lied to the court and to the police, all the while continuing the lies to his client.
Justice Bradley concluded the punishment "is too light."

The Court, however, noted that Attorney Peterson's criminal conviction included a public disclosure requirement that might be interpreted as additional punishment. He was required for a year following his conviction to provide to each client:
a copy of the criminal complaint
a letter stating: I am a crook. I am a cheat. I am a thief. I am a liar. I was convicted of a crime on November 9th, 2015. My conviction resulted from my intentional choice to sell my own clients down the river and then trying to cover it up. You may not hire me or have me legally represent you in any fashion until you read the Criminal Complaint and Judgment of Conviction.
The Appleton Post-Crescent reported on the criminal conviction in November 2016, titled Judge Lashes out at Defense Attorney's Sentencing. It reports that "the judge laid into attorney Michael D. Petersen." The Judge reportedly "lit into Petersen with a run of R-rated language" requiring the quoted disclosure, recognizing it would hurt Petersen's business, and saying "I want you to have as much business as a pimp in a nursing home." 

Petersen noted that during this experience, "his peers reached out to him" that "his family stood behind him," and that his "employer did not fire him, though they could have." He expressed never thinking he "would be on the other side of this table." His attorney claimed that Petersen had "addressed his conduct with a 'therapeutic response,' which includes counseling for poor decision-making." He urged that "Just because somebody makes a mistake doesn't mean they're a bad lawyer or incapable of doing their job." 

As I read the litany of nine counts in the criminal complaint, I was reminded of the Walter Scott quote "O, what a tangled web we weave when first we practise to deceive." In each of the two attorney discipline cases posted recently, it seems that attorneys were confronted with difficult conversations they needed to have with clients. They were called upon to tell the client things that were neither pleasant to discuss nor favorable. They each seemingly elected to lie in avoidance of those conversations, and each found himself on a cascading and unstable ground thereafter. 

What is the right outcome in providing punishment in such situations? Is public shaming appropriate as the berating Wisconsin judge employed? Is private disclosure of past actions appropriate, as the judge ordered? Is a one year suspension sufficient to change behavior, or is disbarment, as Florida elected, and "permanent" protection of the public more efficacious? 

Sometimes, when I write and speak of attorney and judicial offense and punishment, the feedback is disheartening. There are those who say they perceive our system as reluctant to punish egregious actions. Some believe that the system is run by attorneys and judges and that the system is seemingly reluctant to appropriately punish the wrongdoers, or sometimes even to acknowledge actions are wrongdoing. 

It is troublesome that attorneys act inappropriately. It is troublesome that anyone acts inappropriately. Lying, cheating, and stealing are behaviors that are inappropriate; we are taught that throughout our formative years. If it is so clear that behavior is inappropriate, should we be able as a society to expect it not to occur? Can we expect even more of those in whom we place the trust of our our lives, liberty and property? Can more be done to reassure the public that they can receive trustworthy and honest treatment?

Thursday, January 18, 2018

Child Support in the News

WorkCompCentral recently reported Commission Was Improper Venue for Debate on Settlement Going Toward Child Support. The situation arose in Maryland, when an injured worker settled his entitlement to workers' compensation benefits. After the settlement, the insurance company did not deliver the settlement proceeds. It sent a check for a medical evaluation and for attorney fees, but no settlement proceeds.

The employer/carrier explained that it had instead sent the settlement proceeds to the Bureau of Support Enforcement. That action, it explained, was because of existing child support arrears. After the settlement was reached, the Circuit Court entered garnishment writs. The injured worker filed no papers or response in those actions until after the employer/carrier had sent the settlement funds to the Bureau. 

The injured worker then filed a "form" with the Maryland Workers' Compensation Commission. It essentially complained that the settlement proceeds had not been provided as stipulated. The amount due was $2,246.66. The Commission held a hearing, and the injured worker argued that his settlement proceeds were "exempt from garnishment" under the law. The insurance company did not agree with that perspective. 

Following the hearing, the Commission issued a final order and concluded that the statute relied upon by the injured worker did exempt the settlement from garnishment in part, but did not rule entirely in favor of the employee. It concluded that 75% of the settlement was subject to garnishment and 25% was not. Therefore it ordered that the injured worker be paid $421.99. 

The employer and carrier filed for review in the Circuit Court. In Maryland, there is this intermediate step between the workers' compensation adjudication and the appellate court system. The Circuit Court agreed with the 75%/25% distribution, but concluded that actually the 25% could be garnished and the 75% could not be. The effect of the employer/carrier's seeking Circuit Court review was an order compelling it to pay the injured worker $1,684.99.

That led the employer/carrier to the appellate process, In The Court of Special Appeals of Maryland. That court concluded that the issue was different than noted by the Commission or the Circuit Court. The Court explained how "personal injury" proceeds were partially exempted from child support, up to 25%. And, the Court complimented the "well thought-out" presentation of "difficult legal questions."

Then the Court explained that the legal questions presented did not matter. The Court noted that the injured worker did not raise those issues in the Circuit Court that originally entered the garnishment order. The appellate court explained that "only a circuit court has subject matter jurisdiction over garnishment." The use of "only" means that the jurisdiction is "exclusive." The Court noted that the injured worker did not participate in the garnishment proceedings, nor did he raise the exemption argument there. 

The Court explained that any exemption to garnishment would take affect only if it were plead. The Court said "An exemption would not apply automatically," but only if the employee took "action in the garnishment proceedings" to assert and prove entitlement to the exemption; the injured worker did not do so. The Court held that waiting until after those garnishment proceedings concluded, and then attempting to get the workers' compensation system to enforce or protect rights he failed to plead in the Circuit Court was procedurally inappropriate and flawed. 

The Appellate Court noted that the Commission is not a Circuit Court (which has exclusive jurisdiction, as a court of general jurisdiction); in fact, the Court noted "the Commission is not a court at all." The law did not convey on the Commission the power of a "court" and therefore it was acting without authority when it heard the complaint regarding child support to begin with. 

The WorkCompCentral story quotes practitioners noting that these disputes and issues have arisen before in Maryland. One laments that "employers and insurers are placed in a difficult spot when they learn that an injured worker owes child support," noting that anger may result. 

The same issues periodically arise in Florida settlements. Section 440.20(11)(d)1. includes a charge to the Judges of Compensation Claims regarding any settlement:
With respect to any lump-sum settlement under this subsection, a judge of compensation claims must consider at the time of the settlement, whether the settlement allocation provides for the appropriate recovery of child support arrearages.
And, as a result, the Judges of Compensation Claims routinely order payment of child support arrearages from settlements. Over the last 15 fiscal years, the OJCC has collected $162,740,517 in child support arrearage. Judges periodically hear from injured workers that reported balances are incorrect, that previous payments have not been credited correctly, etc. The answer from the OJCC is generally similar to the Appellate Court in Maryland, "sort this out in the circuit court." 

The determination of the amount of child support that is appropriate, or the accounting associated with payments, is an issue for the circuit court, which coincidentally is Florida's court of general jurisdiction. That is the place to argue about the imposition or amount of support amounts due. The OJCC merely enforces collection of what that court orders.

Of course, if an injured worker finds herself/himself in disagreement with a reported arrearage, a request could be made to have the Judge of Compensation Claims delay ruling on the settlement distribution. That delay could be used by the injured worker to seek clarification from court officials or the Department or Revenue regarding the accounting questions. That delay could be used by the injured worker to seek an order from the Circuit Court regarding the arrearage amount. 

Tuesday, January 16, 2018

The Pacific Hospital Drama Continues

In December, WorkCompCentral reported that "More than 14,500 patients had surgeries or other procedures performed at Pacific Hospital," which were “likely the result of a kickback payment.” That is an astounding allegation. 14,500 people have had their lives affected by people accused of criminal activity. 

The foundation of this particular story included disclosures in an order that was proposed in the prosecution of one of the physicians accused, a Dr. Philip Sobol. There is also discussion of Federal Bureau of Investigation (FBI) documents regarding the surgeries performed and referrals made by Dr. Sobol during the "time the kickback arrangement was in place.” Allegedly, an appreciable percentage of the total (2,800), about 90 "underwent a spinal fusion."

On January 15, 2018, WorkCompCentral reported that the former owner of Pacific Hospital, and the mastermind of the fraud scheme, will serve just over 5 years in prison. He was charged with "overseeing a $500 million workers' compensation fraud scheme for 15 years." A press release from the U.S. Attorney's Office also provides details. 

There is frustration in various circles as this Pacific Hospital situation has been discussed. There are questions raised at various conferences regarding how such a widespread activity could have prevailed for so long. Many have mentioned that essentially "all the signs were there" and yet the procedures and the referrals continued. 

At a conference in October, one attendee claimed that limousines were provided to transport patients to Pacific Hospital for care. That one might be a red flag. If anyone is providing you a free limousine ride, there may be a few questions that come to mind before accepting. 

Another frustration cited by WorkCompCentral in December is locating those many patients who were involved. The FBI has purportedly been unable to locate some of those patients to "notify them of their rights as possible victims." As much as some of us follow the news in workers' compensation, and try to engage in conversation, apparently the scandal at Pacific is not coming to the attention of everyone potentially affected. 

Having failed to reach those patients using information obtained from Pacific, the FBI is currently seeking information "from third parties who maintained medical records for Pacific Hospital." Through that effort, the FBI hopes to send to each "a victim notification.” Despite these challenges, prosecutors express confidence that the "workers’ compensation carriers that paid for surgeries have been identified and notified." 

Certainly, there is confidentiality to consider. However, a subpoena or two to those companies might well produce the identities and locations of those victims. In the absence of a subpoena, those carriers might nonetheless drop a line to those injured workers directly and provide them with a few of the articles that have been published about the Pacific prosecutions. Perhaps those patients might be encouraged to come forward? 

The scope of this Pacific situation is significant. Dr. Sobol has agreed to a "plea agreement" regarding the 2,800 procedures that he performed, and will "pay restitution totaling $5.2 million." This is “to disgorge defendant of the kickbacks that he received from Michael Drobot,” who is "the former owner of Pacific Hospital." 

An important distinction is suggested by this statement. This is not $5.2 million to compensate the victims of the scheme. This is “to disgorge defendant of the kickbacks that he received." That could be a misstatement. But, if true that is an average kickback of $1857.14 (5,200,000/2,800) per surgery performed by Dr. Sobol. 

Allegedly, Mr. Drobot funded "the kickbacks" by profiting on another enterprise, the International Implants company. This distributed hardware, surgical implants" to Pacific Hospital. Mr. Drobot has reportedly been under investigation regarding that hardware, its manufacture, and the interesting relationship between Pacific and International. 

The WorkCompCentral report in December stresses that Dr. Sobol was not part of International, "and there is no evidence that he participated in any billing fraud with respect to the medical hardware." However, in the plea deal, Dr. Sobol "has agreed" to make the restitution payment in order to return funds to the "entities who were likely over-billed for medical hardware.” 

In addition, Dr. Sobol is likely to spend some time in prison following sentencing in 2018. Estimates are for a recommended prison term of 46 to 71 months. The doctor might spend close to 6 years in prison. That is interesting in light of this week's sentence of 63 months for the overseer of the entire scheme? It will be interesting to see if other medical care providers are likewise penalized for participation in this scheme. 

It is positive to see the criminal justice system addressing both the provider (Drobot) and recipients (such as Sobol) of the kickbacks. It is certain that some patients may never be found. The fact is that as time passes people move, change names, and become difficult to locate. It is entirely possible that the carriers that paid these medical bills might be as frustrated in finding these victims as prosecutors and the FBI has been. 

However, it seems that some effort should be directed to the attempt. These patients have been victimized by a criminal enterprise. That does not mean that any or all have been damaged. It is possible that the care delivered was absolutely the best possible, and the damage is all financial. But it is also possible that some or all of these patients would want to know of the motivations that influenced the selection of Pacific for their surgeries. 

If they are due nothing beyond knowing, they still deserve to know. Hopefully, the FBI and prosecutors experience greater success in locating them, or hopefully others with information strive to contact these patients.

Sunday, January 14, 2018

What is Ex Parte

Florida attorney conduct is governed by the Rules Regulating The Florida Bar (trivia note: the name includes "the" so that is capitalized). It is a topic studied by thousands each year in preparation for undertaking the Bar examination, and then read or referred to sporadically in the day-to-day of professional life. Admittedly, most lawyers do not regularly study nor consider the Rules. 

I periodically have lawyers express surprise that "ex parte" communication with judges is not addressed in the Rules in Florida. And, there is seemingly a fair amount of confusion about ex parte (ex par-tay) communication. The Wex Legal Dictionary provides a detailed definition, which includes two main ex parte concerns, one a matter of legal ethics and the other a matter of civil procedure, the process by which civil cases are processed. 

The first, concerned with legal ethics, is:
ex parte refers to improper contact with a party or a judge. Ethical rules forbid (with some exceptions) a lawyer from contacting the judge or the opposing party without the other party's lawyer also being present. A breach of these rules is referred to as improper ex parte contact
The dictionary addresses the second the procedure aspect as:

motions for orders that can be granted without waiting for a response from the other side. Generally, these are orders that are only in place until further hearings can be held
The second, "procedural" aspect is also addressed, mentioning ex parte, by the Rules Regulating The Florida Bar, in Rule 4-3.3 Candor Toward the Tribunal. That rule generally requires honesty, stating a lawyer shall not "knowingly" "make a false statement of fact or law to a tribunal." But, when a proceeding is "ex parte," the Rules place additional onus on the attorney, requiring
In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Rule 4-3.3(c).
However, the Rules Regulating The Florida Bar do not seemingly address as "ex parte" the first aspect, the "improper ex parte contact," the prohibition on "contacting the judge or the opposing party without the other party's lawyer also being present." However, the Rules do address such communication with the judge in a broader context in Rule 4-3.5 Impartiality and Decorum of the Tribunal:
In an adversary proceeding a lawyer shall not communicate or cause another to communicate as to the merits of the cause with a judge or an official before whom the proceeding is pending except
(1) in the course of the official proceeding in the cause;
(2) in writing if the lawyer promptly delivers a copy of the writing to the opposing counsel or to the adverse party if not represented by a lawyer;
(3) orally upon notice to opposing counsel or to the adverse party if not represented by a lawyer; or 
(4) as otherwise authorized by law.
Thus, though Rule 4-3.5 does not use the term "ex parte," the rule prohibits such communication with a judge regarding a proceeding unless it is in a proceeding (at which all parties are present or were at least notified to be present) or if the opposing party(ies) or counsel are made aware [(3) "upon notice," or (2) "delivers a copy."]

The prohibition on ex parte communication is a burden on the attorneys in any "adversary proceeding." But, the judge is similarly prohibited. The activities of judges are further governed by the Code of Judicial Conduct. This judicially created set of parameters guides the adjudicator in many jurisdictions, though each jurisdiction's may be distinct from others in any number of ways. 

The Florida Code, Canon 3, provides
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits are authorized, provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. (Emphasis added). 
This judicial prohibition is broad, "A judge shall not initiate, permit, or consider ex parte communications." An ex parte communication received by a judge can be considered, however, under (a)(ii) if the "judge makes provision promptly to notify all other parties." Thus, a cure for improper ex parte communication (intended or inadvertent) is generally to notify the other parties of that communication. 

This communication is a cure for the prejudice that is potentially affected by the communication in the first instance. The prohibition is rooted in the adversarial nature of the American justice system. The prohibition is rooted in the Constitutional guarantees of "due process," which in a procedural sense means essentially "notice" (that proceedings not occur without a party knowing) and "opportunity to be heard" (that before ones rights or property are impaired the judge will listen to that person's viewpoints, arguments, and positions).

When an attorney or an unrepresented party to any "adversary proceeding" communicates with "a judge," that communication should be promptly copied or communicated to the other parties in a case. This is required of attorneys in Rule 4-3.5. Certainly, there may be some argument when communicating with "a" judge as opposed to "the" judge. The Rule specifically states "before whom the proceeding is pending." That is discussed further below. 

While non-lawyers are not governed by the Rules Regulating The Florida Bar, the same advice is sound for them also. While such unrepresented party might not violate any ethical rule with ex parte communication, it is nonetheless inappropriate considering the underlying due process concerns. When a party communicates with a judge, a copy of that should also be provided to all other parties or counsel. 

When a judge receives such an ex parte communication, from party or counsel, the best course of action would be re-communicating that to all parties or counsel involved in that "adversary proceeding." That re-communication is the best available tool to alleviate or ameliorate any prejudice that might flow from the ex- parte communication. At a minimum, that re-communication will put everyone involved on notice of the existence and substance of the communication. 

This Office cannot take sides in a dispute, or provide counsel or advice. However, there are often instances in which this Office can be of assistance to parties and attorneys. That is, in a general sense. This Office can explain how to e-file, can direct attention to resources on the OJCC website or otherwise. A great resource for such questions is the OJCC clerk's office, which can be reached by emailing AskOJCC@doah.state.fl.us.  

Certainly, no one at the Office of Judges of Compensation Claims can provide legal advice regarding either interpretation or application of the law or rules. Not only is it inappropriate for a judge or staff to provide legal advice or "advisory opinions," it is inappropriate for parties, lawyers, or their staff to even ask for such opinions. Unfortunately, such requests nonetheless are made often.

Lawyers or staff will call staff in a district office and request advice. Often this follows receipt of an order or notice, and the question is "what do I do now?" The answer to the question is usually simple "follow the notice or order." The caller's inquiry, however, is driven by some conflict, an inability or unwillingness to comply with the notice or order. These calls often include entreaties, explanations of conflicts, and all-too-often frustration. 

Thought the simple answer "follow the notice or order," is obvious, there is another answer that is perhaps less frustrating. When the "adversary proceeding" is in Florida workers' compensation, the other answer is likely a motion. This is set out in Rule 60Q6.115(1) which states
Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested. The judge may treat any request for relief from an unrepresented party as a motion. (Emphasis added).
This is very broad. It applies to any request for "relief." That is, some outcome that is different from what is stated in that notice or order that has been received. That is, some outcome that is different from any other current situation in the "adversary proceeding." That is, when unhappy or dissatisfied with the way things are, or the direction in which things are headed, seek relief. That is, file a motion, and describe "the relief requested" (tell the judge what direction you prefer instead, and explain why). 

There are times (as mentioned above) when parties and attorneys decide to contact me directly regarding their issues, concerns, and questions. When those are general questions, when information on process is sought, then it may be appropriate to send me an email. I do my best to reply to such emails with information about our e-filing process, how the technology can be of assistance, and I always welcome suggestions on improving our agency and tools. 

But, sometimes those communications are case-specific, and inappropriately seek (seemingly at least) advice that is "what do I do now?" as in "in this case," and "at this moment," and that strays dangerously into legal advice. I can no more answer that question than any of the OJCC staff can. Similarly, when the inquiry becomes specific, about a particular case or filing, it may seem (at least) to be ex parte. Although I may not be "the" judge in a particular case, I am ever cautious that I am nevertheless "a" judge. As such, when I receive an inquiry that is case-specific, I may conclude that it is too specific to be addressed ex parte

In those instances, consistent with the Florida Code of Judicial Conduct, I often reply providing a copy to the sender and the other parties or attorneys involved. I have had questions regarding this. I have had attorneys explain to me my misunderstandings and misinterpretations, contending their communications to be appropriate and not ex parte. Some have even contended my re-communication breaches their confidence. 

But, they must remember that they are obliged to follow the Rules Regulating The Florida Bar, subject to their interpretation, while I must follow the Code of Judicial Conduct subject to mine. In that regard, I may conclude that re-communication to all involved in and "adversary proceeding" is either appropriate or necessary. In doing so, I am not breaching any confidence or trust. When attorneys communicate with me, they must understand that my obligations and interpretations in such regard may simply be different from theirs.

In this analysis of whether to communicate with the judge and whether to copy the opposing parties, one might ask (1) "is this something necessary and appropriate to communicate to a judge?" And, (2) "is there some reason not to provide copies of this communication to the other parties or counsel?" It seems that perhaps when the answer to question one is "yes," the answer to question two is most likely "no." If the answer to question two is "yes," one might be encouraged to reanalyze that conclusion as thoroughly as possible. What interest would secrecy serve?

If the repeated analysis of question two persistently leads to the outcome "yes," this might suggest that one might want to carefully reconsider question one. If it is appropriate and necessary to communicate to a judge, what purpose would be served by not communicating it also to the other parties in the "adversary proceeding?" If it is appropriate to communicate it to a judge, what justification is there for not sharing it with all parties involved?