PROBLEMClass #10

Assume that attorney Jack Norton has a disciplinary case pending before the Florida Supreme Court that is identical to The Florida Bar v. Norkin in every way except one. The Florida Supreme Court has not yet heard or rejected a motion for rehearing by Norton (as it has in The Florida Bar v. Norkin). Otherwise, the two cases and the conduct of the two lawyers are identical. Read the following Motion for Rehearing by Norton and be prepared to discuss its merits in light of The Florida Bar v. Norkin case.

Supreme Court of Florida.THE FLORIDA BAR, Complainant,v.Jack Norton, Respondent.MOTION FOR REHEARING

Respondent moves this Court to set aside the Final Judgment entered in the above-styled matter on the following grounds:

1.Respondent was not sanctioned by the courts below. None of the judges before whom Respondent appeared reported him to The Florida Bar or used their authority to sanction him. It is not appropriate for The Florida Bar to punish Respondent for conduct that those judges did not deem sufficiently egregious to warrant a referral to The Bar or to merit the imposition of sanctions by the lower courts themselves.

2.Respondents client won the underlying case on the merits. Because of Respondents advocacy, his client won the underlying case below on summary judgment with the court finding that his opponents case had no basis in law or fact. Respondent subsequently filed, on behalf of his client, an Abuse of Process counterclaim against his opponent, (alleging improper use of the legal process by his opponent in the case), and won a judgment in the amount of $300,000. Neither Respondents litigation tactics, nor his clients legal positions, were frivolous, lacking in merit, vexatious, or in bad faith.

3.Respondents behavior was provoked and justified by opposing counsels behavior. Respondents opponents case and his lawyers tactics were weak and without evidentiary support, at best. At worst, the case and their tactics were deliberately deceptive. Years earlier in the case, a forensic accountant issued a report that exonerated Respondents client, and yet, opposing counsel still did not dismiss the case. Furthermore, opposing counsel was incompetent. He knew his case was weak and did not care how much trouble and expense he imposed on Respondents client by continuing to pursue the claim when he had no evidence to support it. He lied repeatedly to the judge about the existence of supportive evidence. It is wrong to speak ill of the dead, but Respondent and his client are the victims of an incompetent lawyer pushing a weak case, solely because he was being paid legal fees to do so.

4.Respondents speech is protected by The First Amendment of the U.S. Constitution, and therefore, may not be a basis for sanctions. The right to speak the truth is guaranteed to everyone by The First Amendment of the U.S. Constitution. Exceptions exist, but none apply to the facts of this case. No person is immune from having to hear the truth spoken. As a matter of law, the truth is never uncivil. A person who lies deserves to be called a liar. Respondents correspondence with opposing counsel, containing many of the statements for which the Court intends to punish Respondent, were not made public by Respondent, but rather by opposing counsel himself. Respondent is, in essence, being convicted of using adjectives this Court deems inappropriate. He presumably could have said the same thing using different words and a passive-aggressive approach (the method adopted successfully by so many lawyers) and been beyond reproach. Successfully prohibiting counsel from speaking the truth about the dishonesty of opposing counsel will have catastrophic results and prove that the legal system is truly corrupt.

5.Respondent had no intent to break any disciplinary rule and caused no harm. The disciplinary rules do not provide for punishment in the absence of bad intent and actual harm being inflicted. Respondent had no intent to disrupt any tribunal and did not do any damage to his own or his opponents case. Respondent had no dishonest or selfish motive in anything he did. At worst, Respondents behavior was at times a bit over the top, but nothing of sufficient magnitude to warrant serious punishment from this Court.

6.No other Florida lawyer has been similarly sanctioned by this Court for comparable behavior. The Court in Footnote 5 of its opinion says Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior. This footnote is absurd, self-indulgent, and ironic to the point of hilarity. The Florida Bars and this Courts legal work should be criticized and ridiculed, not Respondents. This Court rejected the Referees recommended discipline of a 90-day suspension (which was itself an outrage), to impose a two-year suspension. Lawyers who have stolen thousands of dollars from their clients have gotten far less discipline than Respondent will receive. Not a single lawyer in Florida has been disciplined for conduct similar to Respondents.

7.Respondents client in the underlying case supports Respondents view of the facts. The Referee and this Court should have given more weight to the views of Respondents client. He was present at most of the hearings and copied on all of the emails. He said opposing counsel recited total fabrications to the court and all he saw in response was the complete favoritism by the court towards his opponent. He has waited six years for justice and paid hundreds of thousands of dollars in legal fees. Respondents client stated that he has become prey to an inept and broken system that does not value the truth. He believes Respondent did his best to defend him and speak the truth with passion which is what it took to overcome the favoritism.

8. Respondent, if suspended, will be unable to continue helping his clients. This case has ruined Respondents life. He gave $500,000 in free legal work to his client in the underlying matter and has given many other clients legal assistance they might not otherwise have obtained. The legal system will suffer from Respondents absence.

Based on the foregoing, Respondent requests that this Court reconsider its Final Judgment and allow further oral argument on these issues.