IN THE SUPREME COURT STATE OF · PDF fileIN THE SUPREME COURT STATE OF FLORIDA ... entered...
Transcript of IN THE SUPREME COURT STATE OF · PDF fileIN THE SUPREME COURT STATE OF FLORIDA ... entered...
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IN THE SUPREME COURTSTATE OF FLORIDA
CASE NO. SC01- LOWER TRIBUNAL CASE NO. 99-07778 CA(27)
In the Matter of a Petition for a Writon Behalf of TIMOTHY W. HARRINGTON, Individually, and as Lead Counsel of
THE LAW OFFICE OF TIMOTHY W. HARRINGTON,
Petitioner.
German A. Gutierrez, Plaintiff
vs.
Carlos Antonio Orellano, Defendant.
PETITION FOR THE EXERCISE OF THEFLORIDA SUPREME COURT’S ALL WRITS POWER
Joseph W. Hatchett Miles A. McGrane, IIIFlorida Bar No. 0034486 Florida Bar No. 201146Robert J. Telfer III MCGRANE & NOSICH, P.A.Florida Bar No. 0128694 2801 Ponce de Leon Blvd.AKERMAN, SENTERFITT 12th Floor & EIDSON, P.A. Coral Gables, Florida 301 South Bronough Street, 33134 Suite 200 Telephone: (305) 442-4800P.O. Box 10555 Facsimile: (305)442-2339Tallahassee, Florida 32302-2555Telephone: (850) 222-3471Facsimile: (850) 222-8628
Counsel for Petitioner Timothy W. Harrington, Law Office ofTimothy W. Harrington and Allstate Insurance Company
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PETITION FOR THE EXERCISE OF THEFLORIDA SUPREME COURT’S ALL WRITS POWER
Pursuant to Article V, section 3(b)(7) of the Florida
Constitution, Timothy W. Harrington, individually and as Lead
Counsel of The Law Office of Timothy W. Harrington, and
Allstate Insurance Company (collectively, "Petitioner"),
petitions this Court to issue all writs necessary to preserve
the Court’s exclusive jurisdiction to discipline attorneys
under Article V, section 15 of the Florida Constitution.
Petitioner requests that this Court issue a writ directing the
Honorable Paul Siegel to vacate his June 15, 2001 Order
Prohibiting Allstate Attorneys From Using Law Firm Name In
Division 27 Proceedings and his July 20, 2001 Order
Prohibiting Insurance Company In-House Attorneys From Using
Firm Names In Division 27 Proceedings, because these Orders
constitute an unauthorized exercise of the constitutional
power which rests exclusively in this Court.
I. INTRODUCTION
This proceeding seeks review of two orders that Circuit
Judge Paul Siegel entered against the Petitioner. The first
order, entered June 15, 2001 in Gutierrez v. Orellano, Miami-
Dade County Circuit Court Case No. 99-0778 CA(27) (the
"Gutierrez Order"), forms the backbone of this Petition. A
copy of the Gutierrez Order is in the Appendix at Tab "A".
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The Gutierrez Order essentially regulates the manner in which
Timothy W. Harrington and The Law Office of Timothy W.
Harrington conduct the practice of law in Division 27 of the
Miami-Dade County Circuit Court. In fact, the Gutierrez Order
declares that Mr. Harrington, and attorneys practicing in his
law firm, are in violation of disciplinary rules that this
Court has adopted. See Gutierrez Order, App. A, at §§ 3-4.
The Gutierrez Order further ponders whether Petitioner
generated or contributed to any false or intentionally
misleading testimony during trials, despite Judge Siegel’s
candid admission that he did not have sufficient facts or
evidence to draw such a conclusion. See Gutierrez Order, App.
A, at §§ 5-9.
Petitioner moved for a Stay and Reconsideration of the
Gutierrez Order. Soon after Judge Siegel entered the
Gutierrez Order, he entered an Order to Show Cause why in-
house attorneys for other insurance companies should be
prohibited from using law firm names in Division 27 of the
Miami-Dade County Circuit Court. At the hearing on this Show
Cause Order on July 18, 2001, Judge Siegel considered
Petitioner’s Motions for Stay and Reconsideration, and
permitted counsel for Petitioner to be heard on these motions.
Judge Siegel entered an omnibus Order on July 20, 2001, in
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Delgado v. Gonzalez, Miami-Dade County Circuit Court Case Nos.
97-25826 CA(27), 98-12018 CA(27), 99-12680 CA(27), 00-28545
CA(27) and 01-06755 CA(27) (the "Gonzalez Order"), which
regulated the manner in which in-house attorneys at other
insurance companies could conduct the practice of law in
Division 27, and denied Petitioner’s Motions for Stay and
Reconsideration. A Copy of the Gonzalez Order is in the
Appendix at Tab "B". Petitioner seeks review of the
Gonzalez Order as well.
II. JURISDICTIONAL STATEMENT
Article V, Section 3(b)(7) of the Florida Constitution
vests the Court with the power to issue all writs necessary to
the complete exercise of its jurisdiction. The Court’s "all
writs" power is properly invoked when the Florida Constitution
confers jurisdiction on the Court to undertake or exercise a
direct and discrete responsibility. See, e.g., Rowe v.
Pinellas Sports Auth., 461 So. 2d 72, 74 (Fla. 1984)
(exercising all writs jurisdiction based on the Court’s
constitutional jurisdiction to review bond validations);
Florida Senate v. Graham, 412 So. 2d 360, 361 (Fla. 1982)
(exercising all writs jurisdiction based on the Court’s
constitutional jurisdiction to review apportionment of the
legislature).
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Article V, Section 15 of the Florida Constitution vests
the Court with the "exclusive jurisdiction to regulate the
admission of persons to the practice of law and the discipline
of persons admitted." See also Florida Rules of Professional
Conduct 3-1.2 ("[t]he Supreme Court of Florida has the
inherent power and duty to . . . determine what constitutes
grounds for discipline of lawyers [and] to discipline for
cause attorneys admitted to practice law in Florida . . . .").
An "exclusive" jurisprudential power is one that is possessed
to the exclusion of others. Seaboard Air Line R. Co. v. Gay,
68 So. 2d 591, 593 (Fla. 1953). The circuit court’s Gutierrez
and Gonzalez Orders contravene this Court’s exclusive
jurisdiction to regulate the practice of law in Florida. As
recognized in this Court’s opinion in State ex rel. Chiles v.
Public Employees Relations Comm’n,"[b]ecause the regulation of
attorneys falls within the Court’s ultimate power of review,
the all writs clause could arguably be invoked as a basis for
this Court’s jurisdiction." 630 So. 2d 1093, 1094-95 (Fla.
1994).
Because the regulation of attorneys falls exclusively
within the power of this Court, a review of the Gutierrez and
Gonzalez Orders can only be obtained in this Court. In fact,
Judge Siegel fully expected that this Court would review his
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1 Judge Siegel did not make a similar proclamation in theGutierrez Order, but did acknowledge that The Florida Bar mayneed to resolve the problems presented in his Order. SeeGutierrez Order, App. A, at §§ 3-4.
2 Judge Siegel suggested that the Gonzalez Order could beappealed to the Third District Court of Appeal as a finalorder, a post-judgment order or as an injunction. SeeGonzalez Order, App. B, at § 6. Neither the Gutierrez norGonzalez Orders: are the conclusion of all judicial labor inthe proceeding; follow any judgment in the lawsuit; or grantor deny injunctive relief to any party. Judge Siegel’ssuggestion that the Third District can utilize "by pass"jurisdiction to send his Orders to the Florida Supreme Courtis similarly inefficacious, since certification cannot bepredicated on the false assumption that the order would beappealable to the Third District Court of Appeal in the firstinstance.
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orders, believing that his orders would be appealable to the
Third District Court of Appeal and "rapidly" sent to the Court
through the by-pass certification:
In the court’s view, the issues dealt with in thisorder are best resolved by the Florida Supreme Court. . . because the issues are "of great publicimportance" and "have a great effect on the properadministration of justice."
Gonzalez Order, App. B, at ¶ 6 (emphasis in the original).1
Although his understanding of the appealability of circuit
court Orders was inaccurate2 and he had been specifically so
advised, he recognized the indispensability of review in this
Court.
Judge Siegel’s recognition in the Gonzalez Order that his
Order is of great importance to the proper administration of
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3 In fact, this issue is under consideration in at leastone other Florida jurisdiction and is likely to propagatearound the state. In Seminole County, Allstate has received aMotion to Compel that a private party Plaintiff filed,requesting the Circuit Court to enjoin the practice ofpermitting staff counsel for Allstate (Law Offices of RobertSoifer) from appearing and holding themselves out as a lawfirm. The Motion relies extensively on the Gutierrez Order. A copy of the Motion to Compel is in the Appendix at Tab "C".
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justice is an acknowledgment that the Order does not merely
operate to control proceedings in his "small bailiwick," or
have any effect in other courts or in other divisions of the
Miami-Dade County Circuit Court, as he had suggested in the
Gutierrez Order. See Gutierrez Order, App. A, at § 3.3 His
assertion that this Court should review these Orders rapidly
is a recognition that the Orders have immediate effects on the
practice of law on a large group of attorneys in Miami-Dade
County, and that the Third District Court of Appeal lacks the
subject matter jurisdiction to address the disciplinary
effects of his Order.
Petitioner has invoked the jurisdiction of this Court
because Judge Siegel has entered Orders which purport to
regulate the manner in which Petitioner practices law in
circuit court. Petitioner is entitled to a review of Judge
Siegel’s attempts to exercise disciplinary power over
Petitioner’s practice of law, and other than the Florida
Supreme Court, no forum exists with the authority or
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4 Judge Siegel issued similar show cause Orders on orabout June 27, 2001 to other law firms with proceedingspending in his court.
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jurisdiction to undertake that review.
III. STATEMENT OF THE CASE
On June 11, 2001, Circuit Court Judge Paul Siegel issued
an order to show cause directed to Allstate Insurance Company
("Allstate") in the then-pending Gutierrez case, directing
Allstate to show why the law firm that Mr. Harrington managed-
-The Law Office of Timothy W. Harrington--should not be held
to be in violation of the ethical rules governing members of
The Florida Bar, and for that reason be barred from filing
pleadings and correspondence in Judge Siegel’s division of the
Miami-Dade County Circuit Court which bear the caption of his
law firm "The Law Office of Timothy W. Harrington." See June
11, 2001 Order to Show Cause, in the Appendix at Tab "D".4
Judge Siegel conducted a hearing on the June 11, 2001
Show Cause Order on June 15, 2001. Following that hearing--on
the same day--Judge Siegel entered the Gutierrez Order,
Prohibiting Allstate Attorneys From Using Law Firm Name in
Division 27 Proceedings. Petitioners thereafter filed
Motions for Stay and Reconsideration of the Gutierrez Order.
In the meantime, Judge Siegel issued similar Show Cause Orders
directed to other law firms, and held a hearing on July 18,
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5 Judge Siegel also deferred ruling on whether thepleading signature blocks must contain a statement of therelationship of counsel to the insurer, opting instead for ahopeful decision from The Florida Bar or this Court. SeeGonzalez Order, App. B, at ¶ 4.
6 Staff counsel’s defense of insureds is ethicallypermissible and does not constitute the unauthorized practiceof law. See In re Rules Governing Conduct of Attorneys, 220So. 2d 6 (Fla. 1969).
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2001. At that hearing, Judge Siegel considered Petitioner’s
Motions for Stay and Reconsideration. Judge Siegel issued the
Gonzalez Order on July 20, 2001, which prohibited other law
firms from using their respective law firm names, and denied
Petitioner’s Motions for Stay and Reconsideration.5
IV. STATEMENT OF THE BACKGROUND FACTS
Allstate maintains a staff counsel office in Miami that
operates under the name "Law Office of Timothy W. Harrington."
The lawyers in that office are employees of Allstate and their
primary responsibility is to defend insureds for whom Allstate
provides a defense under liability insurance policies.6 Those
lawyers do not solicit representation of clients that Allstate
has not assigned to the office, and neither solicit nor accept
any matters for their insured clients other than defense
pursuant to a policy of insurance. The office is an
unincorporated division of the Allstate Law and Regulation
Department, and is not an independent entity. Allstate leases
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7 See Florida Rules of Professional Conduct 4-5.1(a) ("[a]partner in a law firm shall make reasonable efforts to ensurethat all lawyers in the firm conform to the Rules ofProfessional Conduct."); 4-5.1(b) ("[a] lawyer having directsupervisory authority over another lawyer shall makereasonable efforts to ensure that the other lawyer conforms tothe Rules of Professional Conduct.").
8 In the comments to Florida Rule of Professional Conduct4-1.10, the term "firm" is defined as including "lawyersemployed in the legal department of a corporation . . . ."
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or owns the premises that the law offices occupy. Allstate
also pays directly the law offices’ expenses (including
salaries, court and discovery expenses and fees for expert
witnesses).
Timothy W. Harrington is the lead counsel of the office
and exercises the same supervisory responsibility over the
other attorneys in the office as he would were he a sole
proprietor and they were his employees.7 The lawyers practice
collectively, assisting one another and calling on one another
for assistance. The office constitutes a "law firm" pursuant
to the definitions in the Florida Rules of Professional
Conduct.8 The office uses letterhead, business cards and
signs describing it as "Law Office of Timothy W. Harrington."
Immediately under that designation is the description:
STAFF COUNSELAllstate Insurance Company
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9 Encompass Insurance is a division of Allstate, and forpurposes of this Petition, this Court should consider the term"Allstate" to include both Allstate Insurance Company andEncompass Insurance.
10 An example of an initial representation letter is inthe Appendix at Tab "E". Petitioner has redacted certainportions of this letter for confidentiality purposes.
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Encompass Insurance.9
Allstate’s Florida claims offices send cases to the staff
counsel office for defense. The staff counsel office screens
such cases to determine which cases it should assign to
outside law firms. The staff counsel office will identify any
case with an active reservation of the right to deny indemnity
coverage on the initial suit referral form that the claims
office provided, and the staff counsel will assign the case
to an outside law firm as soon as it learns of the
reservation. Staff counsel will assign to an outside law firm
any case involving claims of one Allstate insured against
another or otherwise involving a likelihood of some conflict
of interest. Any case involving a probability of liability in
excess of the applicable policy limit will be assigned to an
outside law firm promptly after that likelihood is recognized.
In the initial representation letter, Petitioner clearly
states to all insured clients that the attorney is an employee
of Allstate.10 That letter also states that, if the insured
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client has or may have an affirmative claim against the
plaintiff in the lawsuit, the staff counsel office will not
handle the claim and directs the insured to retain personal
counsel to pursue the claim. If a staff counsel lawyer learns
of any pending traffic citation in connection with an
accident, or any other matter in which legal assistance may be
useful but is separate from the defense Allstate provides
pursuant to the policy, the staff counsel will: (1) alert the
client to the possible need for legal services (if the client
is not already aware); and (2) inform the client that the Law
Offices of Timothy W. Harrington will not provide those
services.
Staff counsel prepare and file pleadings connoting "Law
Office of Timothy W. Harrington" as representing the insured
client. They do not disclose the relation of the office to
Allstate in the pleadings. As explained more fully in the
argument section below, Petitioner did not disclose this
relationship because it is ordinarily not material to any
matter before the court in which the pleading is filed, and
omitting any mention of it helps effectuate the public policy
against informing juries of the involvement of insurance. See
Fla. Stat. § 627.4136; Beta Eta House v. Gregory, 237 So. 2d
163 (Fla. 1970).
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On June 11, the trial court, on its own initiative,
entered an Order to Show Cause in Gutierrez v. Orellano on the
question of whether staff counsel for Allstate should be
prohibited from appearing and conducting litigation in
Division 27 of the circuit court under the name "Law Office of
Timothy W. Harrington." See Order to Show Cause, App. D.
After a hearing on the show cause order on June 15, in which
counsel for Allstate and The Florida Bar participated, the
court issued the Gutierrez Order (on the afternoon of June
15), prohibiting Allstate lawyers from using the law firm
name in Division 27 proceedings. Petitioner filed motions for
Reconsideration and Stay of the Gutierrez Order. On July 20,
2001, the court issued the Gonazlez Order which, inter alia,
denied Petitioner’s Motions for Reconsideration and Stay.
V. RELIEF REQUESTED
Petitioner respectfully requests that this Court issue
writs directing Judge Siegel to vacate his Orders of June 15,
2001 and July 20, 2001 (the Gutierrez and Gonzalez Orders) as
constituting an unauthorized exercise of the constitutional
power that rests exclusively in the Florida Supreme Court.
Petitioner further requests that this Court affirmatively hold
that the use of a law firm name for staff attorneys for an
insurance company is not deceptive and is approved for use in
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legal proceedings in all courts of Florida.
VI. ARGUMENT
Judge Siegel’s Gutierrez and Gonzalez Orders invade the
Florida Supreme Court’s exclusive jurisdiction to discipline
attorneys under Article V, section 15 of the Florida
Constitution. In addition, no controlling precedent supports
Judge Siegel’s conclusion that the designation in letterhead
and pleadings of "Law Office of Timothy W. Harrington" is
violative of the Florida Rules of Professional Conduct. Judge
Siegel further augments this error in the Gutierrez Order by
suggesting that Petitioner may have generated or contributed
false or intentionally misleading testimony during trials,
despite his candid admission that he did not have sufficient
facts or evidence to draw such a conclusion. Petitioner
respectfully requests that this Court issue all writs
necessary pursuant to Article V, section 3(b)(7) of the
Florida Constitution, to preserve its exclusive jurisdiction
to discipline attorneys.
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11 A copy of the letterhead from the Law Office of TimothyW. Harrington is attached as Exhibit B to the Gutierrez Order,App. A.
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A. The Letterhead Does Not ViolateFlorida Rules of Professional Conduct Because It Discloses Fully the Status of AttorneysAs Full-Time Employees of Allstate.
A cornerstone of Judge Siegel’s Gutierrez Order is that
the letterhead that Petitioner utilizes is violative of the
Florida Rules of Professional Conduct. See Gutierrez Order,
App. A, at ¶¶ 2-3; see also Gonzalez Order, App. B, at ¶ 4.11
In the Gutierrez Order, Judge Siegel relies on Florida Bar
Ethics Opinion 98-3, and the Tennessee Supreme Court’s opinion
in In re Youngblood, 895 S.W. 2d 322 (Tenn. 1995) to support
this conclusion. In the Gonzalez Order, Judge Siegel
supplements his conclusion with additional authority from New
Jersey and Indiana. See Gonzalez Order, App. B, at ¶ 3.
Judge Siegel is incorrect in his conclusion that Petitioner’s
letterhead violates the Florida Rules of Professional Conduct,
and his reliance on a Florida Bar Ethics Opinion and
inapposite caselaw from foreign jurisdictions only undermines
his conclusion.
1. Petitioner’s Letterhead is not Misleading and Complies with Florida Rules of Professional Conduct.
Petitioner’s letterhead represents that the lawyers in
the staff counsel office function as a firm, that Timothy W.
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Harrington is the lead counsel of that firm and that the firm
serves as staff counsel to Allstate. All of these
representations are accurate. The Florida Rules of
Professional Conduct recognize that lawyers in a corporate
legal department constitute a firm and are subject to the same
ethical duties of supervision as those practicing in a
partnership or other form of business organization. As
mentioned previously, the Comments to Florida Rule of
Professional Conduct 4-1.10 define the term "firm" to include
"lawyers employed in the legal department of a corporation or
other organization . . . ." Further, Timothy W. Harrington is
the lead counsel of the office and exercises the same
supervisory authority over the other attorneys in the office
as he would were he a sole proprietor and they were his
employees. See Florida Rules of Professional Conduct 4-
5.1(a); 4-5.1(b).
Florida Rule of Professional Conduct 4-7.10 governs the
manner in which attorneys in Florida may hold themselves out
to the general public. Rule 4-7.10(a) prohibits the use of
false, misleading or deceptive firm names, letterheads or
other professional designations. Rule 4-7.10(b), however,
permits the use of "trade names" if the name is not deceptive,
does not imply a connection with a government agency or with a
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public or charitable legal services organization, does not
imply that the firm is something other than a private law
firm, or is not otherwise in violation of Rule 4-7.2(b)(1)
(concerning "Statements About Legal Services"). Rule 4-
7.10(f) allows that lawyers may state or imply that they
practice in a "partnership or authorized business entity" only
when that is the fact. Additionally, the Comments to Rule 4-
7.10 state that "[a] firm may be designated by the names of
all or some of its members, by the names of deceased members
where there has been a continuing succession in the firm’s
identity, or by a trade name such as ‘Family Legal Clinic.’"
Petitioner’s letterhead does not conflict with Rule 4-
7.10. When read in its entirety, Rule 4-7.10's purpose is to
restrict the manner in which traditional law firms may
identify themselves. While nothing in Rule 4-7.10
specifically endorses the Petitioner’s letterhead, nothing in
the rule forbids it. In fact, Petitioner’s letterhead clearly
discloses its trade name and the staff counsel’s relationship
to Allstate. Judge Siegel’s finding that Petitioner’s
letterhead is misleading is clearly erroneous.
The letterhead discloses that the firm is "Staff Counsel"
to Allstate. The letterhead cannot be read to represent that
the firm is independent of Allstate, because the existence of
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a relationship is fully disclosed. The term "staff counsel"
is commonly used to denote an employment relationship and that
meaning is widely recognized in the legal community.
Moreover, because the lawyers in the staff counsel office
function as a firm, are subject to supervision within the
office and share confidences among themselves, it could be a
misrepresentation to hold themselves out to the public as if
they were solo practitioners.
2. Judge Siegel erred in finding that Petitioner’sletterhead was misleading and in relying onunpersuasive authority to reach this conclusion.
Judge Siegel, at the show cause hearing for Gutierrez on
June 15, 2001, undertook an evidentiary determination based on
the traditional law firm indicia to determine whether the Law
Office of Timothy W. Harrington was operating as a partnership
or professional corporation. Among his findings was that the
staff counsel office "has no employees, does not file tax
returns, has no occupational license, no bank account, does
not buy computers, copiers, telephones or office supplies."
Gutierrez Order, App. A, at ¶ 2. Judge Siegel based his
conclusion that the Petitioner’s letterhead violates Florida
Bar Rules in large part on these findings. This inquiry into
whether the Law Office of Timothy W. Harrington was a
partnership or business entity ignores the clear and full
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12 The "general public" may never see this letterhead,because lawyers in the Law Office of Timothy W. Harringtononly represent their insured clients. The only way anyoneother than Allstate can become a client of the staff counseloffice is to have a damage-producing incident while covered by
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disclosure on the Petitioner’s letterhead that the law firm
was "STAFF COUNSEL, Allstate Insurance Company."
The letterhead discloses that the firm is staff counsel
to Allstate and cannot be read to represent that the firm is
independent of Allstate, because the existence of a
relationship is fully disclosed. The term "staff counsel" is
commonly used to denote an employment relationship and that
meaning is widely understood in the legal community. Indeed,
the New York State Bar Association recently opined that "[a]
group of lawyers who are salaried employees of an insurance
company and whose practice is exclusively in defense of the
company’s policyholders may hold themselves out as a law firm
if (a) they undertake to act consistently with the
professional responsibilities of a law firm . . . and (b) they
provide a clear explanation in all their public communications
that they are employees of the insurance company." New York
State Bar Ass’n Comm. on Pof’l Ethics, Op. 726, 2000 WL 567960
(2000). The disclosure on the letterhead for the Law Office
of Timothy W. Harrington therefore could not mislead the court
or the general public.12
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an Allstate insurance policy, be sued as a result, tender thedefense to Allstate and have the defense assigned to the staffcounsel office. Ordinarily, the first item a client wouldreceive from the staff counsel office is a notice thatAllstate has assigned the staff counsel to handle the defense. Any correspondence would be on this letterhead, whichdiscloses the relationship between the staff counsel andAllstate. The text of the initial letter discloses that theassigned lawyer is an Allstate employee. See App. E.
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In fact, it is this disclosure that forms the analysis of
whether the letterhead is misleading. In Bar Ethics Opinion
98-3, which Judge Siegel relied upon in concluding that the
letterhead was violative of the Florida Rules of Professional
Conduct, the Professional Ethics Committee stated "the
relationship between the attorney and the insurer should be
fully disclosed to the client and appear on the letterhead and
business card of the attorney." Of course, this is consistent
with Rule 4-7.10, which prohibits false, misleading or
deceptive letterhead. Notwithstanding Petitioner’s argument
below that Judge Siegel erred in relying on Opinion 98-3,
Petitioner’s letterhead does comply with Opinion 98-3 because
it clearly discloses the relationship between the Law Office
of Timothy W. Harrington and Allstate.
Judge Siegel, however, mistakenly relied on Bar Ethics
Opinion 98-3, as well as Florida Bar Staff Opinion 22624 (Aug.
14, 2000), in concluding that the Petitioner violated ethical
requirements governing lawyers. Ethics opinions and staff
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opinions are non-binding authority, and provide no legal
efficacy for disciplinary opinions or court action. The
Florida Bar’s Board of Governors has adopted The Florida Bar
Procedures for Ruling on Questions of Ethics, to "govern the
manner in which advisory ethics opinions are issued and
reviewed by The Florida Bar." Rule 1. Rule 9 describes
opinions of the Professional Ethics Committee as "advisory
only," and it prohibits their use as a "basis for action" even
by the agencies charged with enforcing the disciplinary rules
(except on application of the respondent in disciplinary
proceedings).
The advisory nature and restricted use of opinions that
the Ethics Committee and its staff issue reflect the Bar’s
recognition that the Supreme Court alone is responsible for
defining and regulating attorney conduct which is subject to
discipline, through the promulgation of rules and decisions.
Expressions of opinion through the Bar or its staff lack the
procedural safeguards which surround the promulgation of
rules, and which inhere in the appellate process through which
the Court sets policy in this area through its decisions. The
purely advisory nature of opinions of the Ethics Committee,
such as Ethics Opinion 98-3, necessarily means that courts may
not use those opinions as a basis for disciplinary action.
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13 In fact, Bar Counsel breached the Bar’s own requirementof confidentiality when it volunteered to the court theexistence of the opinion.
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Moreover, no court, other than the Florida Supreme Court, has
independent disciplinary authority. See, e.g., Smith v.
Bateman Graham, P.A., 680 So. 2d 497, 499 (Fla. 1st DCA)
(holding that Bar ethics opinions "can provide no basis for a
private cause of action" because they are advisory only),
review dismissed, 680 So. 2d 498 (Fla. 1996).
A more forceful limitation applies to Staff Counsel
Opinion 22624 that counsel to the Ethics Committee of the Bar
issued. Rule 2(c) of the Board of Governor’s Rules governing
ethics opinions states that advisory ethics opinions that the
staff issue are "confidential," except in situations described
in Rule 9 (which are not applicable here). The confidential
and non-public nature of Staff Advisory Opinion 22624 is
reflected on its face in a stamp stating that it may not be
considered as applicable to situations or persons other than
the law firm to which it was directed. Bar counsel chose, for
reasons unknown to Petitioner, to provide a copy of Staff
Advisory Opinion 22624 to the court at the June 15, 2001 show
cause hearing.13 The court erred in relying on this private
opinion, as well as Opinion 98-3, in reaching its conclusion.
The court also relied on opinions from foreign
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jurisdictions to support its conclusion. In the Gutierrez
Order, Judge Siegel relied on In re Youngblood, 895 S.W. 2d
322 (Tenn. 1995), in which the Tennessee Supreme Court
considered the propriety of attorneys practicing under a name
implying that the staff counsel office was "a separate and
independent law firm" with no disclosure of the relationship
to the insurer. The court observed that the staff counsel
office "is not a ‘separate and independent law firm.’ The
representation that the attorney-employee is separate and
independent from the employer is, at least false, misleading
and deceptive." Id. at 331. The court concluded that holding
out in this manner was prohibited.
Youngblood, however, did not consider a staff counsel
letterhead like the one that Petitioners use, which holds the
office out as a law firm but clearly discloses its
relationship to the insurer. The opinion also fails to
indicate whether any of the materials that staff counsel used
disclosed staff counsel’s relationship to the insurer. In
short, Youngblood provides no analysis on the issue of whether
a letterhead that clearly discloses staff counsel’s
relationship to the insurer is misleading or otherwise runs
afoul of ethics rules.
In the Gonzalez Order, Judge Siegel relies on two other
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cases from foreign jurisdictions to support his conclusion.
These cases, however, are inapposite. In In re Weiss, Healey
& Rea, 536 A.2d 277 (N.J. 1988), the New Jersey Supreme Court
considered the propriety of a staff counsel office practicing
under the name "Weiss, Healey & Rea," without any affirmative
disclosure of the employment relationship with the insurer.
The court concluded that this choice of name violated ethical
standards, but appointed a special committee to fashion an
appropriate statement that would properly convey the nature of
staff counsel practice. See id. at 270. The court’s special
committee, however, found no public harm or deception in the
use of a law firm name, even without disclosure of the
affiliation, as long as the attorneys shared responsibility
and liability for their policyholder clients. See Report of
the Ad Hoc Supreme Court Committee on Law Firm Names, 125
N.J.L.J. 316 (1990). Pursuant to this recommendation, the New
Jersey Rules of Professional Conduct were amended to permit
use of a partnership-like name, even without disclosure of the
relationship with the insurer, so long as the named lawyers
shared the responsibility and liability for representing
insureds. See New Jersey Rule of Professional Conduct 7.5(d).
The Gonzalez Order also relied on Cincinnati Ins. Co. v.
Wills, 717 N.E.2d 151 (Ind. 1999), where the Indiana Supreme
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Court held that the use of a law firm name, with a disclosure
of the law firm’s affiliation with an insurer, to be improper.
The court found two aspects of the disclosure troublesome:
the law firm’s failure to disclose its affiliation on its
office door, and the wording of the disclosure, which was
susceptible of being read as meaning that the insurance
company was not in fact the law firm’s only employer.
Obviously, these concerns are not present in this matter.
Other jurisdictions have considered this issue and have
approved of the practice of allowing staff counsel to hold
itself out as a law firm as long as staff counsel disclose
this relationship. See, e.g., California St. Bar Standing
Comm. on Prof. Resp. & Conduct, Formal Op. 187-91, 1987 WL
109707, at *6 (the letterhead used must indicate the
relationship between the firm and the Law Division); New York
St. Bar Op., 2000 WL 567960, at *2 (2000) ("[w]e concur with
those authorities that permit the use of a law firm name as
long as it is accompanied by an explanation that the lawyers
are employees of the [insurance company]"); Oregon St. Bar
Ass’n Formal Op., 1998-153, 1998 WL 717727 (quoting and
following California 1987-91); Pennsylvania Bar Ass’n Comm. on
Legal Ethics & Prof. Resp., Formal Op. 96-196 (April 19, 1997)
("recommended practice [is] to clearly denote the nature of
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the association [among the staff counsel lawyers] and any
affiliation with an insurer on the letterhead itself or in the
text of the initial letter to the insured"); Oklahoma Bar
Ass’n Legal Ethics Comm., Advisory Op. 309, 1998 WL 384612
(Mar. 27, 1998) ("the employee status of the staff attorney
must clearly be disclosed to the client at the outset of the
representation."). As Petitioners clearly disclose their
relationship to Allstate on their letterhead, they comply with
the Florida Rules of Professional Ethics, Ethics Opinion 98-3
and the jurisprudence of other jurisdictions that have
considered this precise question.
B. Judge Siegel’s Orders violate Florida’s strong public policy in favor of allowing attorneys to represent their clients and insurance companies to defend their insureds.
Judge Siegel’s prohibitions in the Gutierrez and Gonzalez
Orders also violate Florida’s strong public policy in favor of
allowing attorneys to represent their clients. Florida Rule
of Judicial Administration 2.060 (a) authorizes all members of
The Florida Bar to appear in all of the courts of Florida as
counsel of record for their clients. And, this Court has
specifically held that attorneys for insurance companies are
authorized to represent insured defendants in legal
proceedings. See In re Rules Governing the Conduct of
Attorneys in Florida, 220 So. 2d 6 (Fla. 1969).
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It is interesting to note that this Court rendered the
Rules Governing Attorneys opinion pursuant to its original
jurisdiction, as the opinion involved the approval of the
predecessor to the Florida Rules of Professional Conduct. The
Court held that, after The Florida Bar’s challenge in 1969 to
prohibit the delivery of legal services through staff counsel,
that staff attorneys of insurance companies have the right to
represent the companies’ policyholders in Florida’s courts to
the same extent as attorneys engaging in the private practice
of law.
The Court held that the alleged "conflict of interest"
problem which prompted the Bar’s petition is identical whether
staff counsel or private counsel represent a policyholder.
The Court further held that the "moral considerations" which
inhere in The Florida Bar’s protection of "the profession
against ethical deviations . . . should not be exploited so as
to develop a double standard of ethics for salaried and non-
salaried lawyers." Rules Governing Attorneys, 220 So. 2d at
8-9. Staff counsels’ use of a law firm name does not
implicate any conflict of interest issues, just as private
attorneys’ use of law firm name does not implicate any
conflict of interest issues. Judge Siegel’s Orders, however,
seek to revive this exploitation between salaried and non-
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salaried lawyers, although he did not base his Orders on any
conflict of interest issues.
The Florida Bar has never suggested that staff attorneys’
use of a law firm setting of name is per se a violation of the
Florida Rules of Professional Conduct. In fact, The Florida
Bar recently put before this Court a proposal that would
recognize that insurance company staff attorneys’ use of law
firm settings and names causes no harm to the public or to the
administration of justice.
C. Judge Siegel’s Orders may require Petitioners to disclose to a jury the existence of insurance, which is normally irrelevant.
In the Gutierrez Order, Judge Siegel held that the
pleading signature block--which indicated that the Law Office
of Timothy W. Harrington employed the particular staff counsel
on the pleading--also violated Florida Rules of Professional
Ethics. See Gutierrez Order, App. A, at ¶4. In the Gonzalez
Order, Judge Siegel apparently receded from this stance as to
the other insurance companies, deferring on this issue until
either The Florida Bar or this Court has issued an opinion on
the subject. See Gonzalez Order, App. B, at ¶ 5. In
Gutierrez, Judge Siegel also discussed--without any supporting
evidence--that a defense expert’s response, on cross-
examination, that The Law Office of Timothy W. Harrington, as
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opposed to Allstate, employed the expert may have generated or
contributed to false or intentionally misleading testimony.
See Gutierrez Order, App. A., at ¶¶ 5-9.
1. The Gutierrez Order’s requirement that staff counseldisclose their affiliation to the insurer on the
pleadings could disclose the existence ofinsurance.
Florida has determined that juries normally should not be
told that a defendant has insurance coverage. In Beta Eta
House v. Gregory, 237 So. 2d 163 (Fla. 1970), this Court held
that:
The existence or amount of insurance coverage has nobearing on the issues of liability and damages, andsuch evidence should not be considered by the jury.
Id. at 165. A court may permit jurors to know of insurance,
however, if a "justiciable issue relating to insurance"
exists, such as issues of coverage or the application or
interpretation of an insurance policy. See Stecher v.
Pomeroy, 253 So. 2d 421, 424 (Fla. 1971).
The Florida Legislature codified the Beta Eta Court’s
rationale in section 627.4136, Florida Statutes, the non-
joinder statute. In Canal Ins. Co. v. Redd, 666 So. 2d 888
(Fla. 1996), this Court held that section 627.4136 was a
declaration of the public policy of Florida. The avoidance of
any mention of insurance in trial proceedings, except when
insurance is a justiciable issue, is an insurance company’s
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substantive right. See VanBibber v. Hartford Accident &
Indem. Ins. Co., 439 So. 2d 880, 883 (Fla. 1983).
Although the mere mention of insurance is not a per se
error automatically resulting in a mistrial, and can be the
subject of a curative instruction, its prejudicial effect is
ever-present and courts carefully police it. See, e.g., South
Motor Co. of Dade County v. Accountable Constr. Co.,707 So. 2d
909, 911 (Fla. 3d DCA 1998) ("[i]t has long been the law of
this state that unless the existence or amount of insurance
coverage has direct relevancy to a matter at issue, it is not
a proper matter for the jury’s consideration . . . ."); Gold,
Vann & White, P.A. v. DeBerry, 639 So. 2d 47, 54 (Fla. 4th DCA
1994) ("[i]t is hornbook law that a jury should not learn of
the existence of insurance coverage or insurance limits.");
Nicaise v. Gagnon, 597 So. 2d 305, 306 (Fla. 4th DCA)
(affirming an order for a new trial based on a statement that
plaintiff’s counsel made during closing argument that the jury
need not "worry whether the defendant will contribute a dime
of money."), review denied, 604 So. 2d 482 (Fla. 1992).
Judge Siegel’s Orders cross the line drawn by Beta Eta
House and section 627.4136, through requiring (or at the very
least suggesting) that staff counsel disclose on court
pleadings their relationship to their insurer. As it is
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normal for juries to see pleadings bearing the names of
counsel (and their law firms), Judge Siegel’s Orders could
require disclosure of the existence of insurance when it is
not always possible or remembered to redact the employment
relationship information.
2. A defense expert’s response on cross-examinationthat he or she is employed by staff counsel is notfalse or intentionally misleading testimony.
In the Gutierrez Order, Judge Siegel analyzes whether a
defense expert’s response on cross-examination that he or she
is employed by staff counsel may be false or intentionally
misleading testimony. Judge Siegel candidly admits that "this
court is not presently prepared to answer [this question] due
to lack of knowledge of the detailed facts," but then analyzes
this issue in detail. See Gutierrez Order, App. A, at ¶¶ 5-9.
Judge Siegel’s suggestion that defense experts state that an
insurance company has employed them is not only incorrect, but
as discussed above, Florida law generally frowns upon the
disclosure to the jury of the existence of insurance.
An expert’s response that the Law Firm of Timothy W.
Harrington was his or her employer is neither false nor
misleading testimony. Judge Siegel states in Gutierrez that
it may be false or intentionally misleading because the expert
states that he or she is employed by a "fictitious independent
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law firm" that does not exist. See Gutierrez Order, App. A,
at ¶ 5. However, as discussed in great detail in section VI
(A), staff counsel’s holding themselves out as a law firm or
trade name does not run afoul of the Florida Rules of
Professional Ethics. Thus, Judge Siegel’s premise is
incorrect.
The identity of the employer of the defense counsel bears
no relevancy to the litigated issues of liability and damages
in an automobile negligence case, and would thus be
inadmissible under the authorities mentioned above. And,
while plaintiff’s counsel may explore the issues of bias on
cross-examination of an expert that defense counsel retained,
such expert testimony does not, absent unusual circumstances,
open the door to inquiries injecting into the trial matters of
the defendant’s liability insurance coverage. Such inquiry is
contrary to established caselaw and clearly stated legislative
and judicial pronouncement of public policy against disclosure
of liability insurance to the jury.
Ordinarily, all the jury needs to know about the expert’s
bias is that defense counsel is paying the expert to testify
for the defendant. Plaintiff’s counsel could also properly
inquire if the expert has testified for the same defense law
firm in previous matters. Any inquiry about an affiliation
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with an insurance company would only potentially become
relevant if the expert had contact with the insurance company.
For example, if the expert had testified for another staff
counsel office of Allstate, that office could be named and the
jury informed that it is affiliated with the Law Office of
Timothy W. Harrington. This would allow the jury to evaluate
bias without the prejudicial introduction of the existence of
an insurance company. Unless Allstate’s involvement was
necessary to allow the jury to fairly adjudicate the
plaintiff’s claim, such disclosure would violate the
nonjoinder statute and caselaw holding that the existence of
insurance should not normally be revealed to a jury.
VII. CONCLUSION
The Law Office of Timothy W. Harrington is not a
"fictitious independent law firm," as Judge Siegel’s Orders
suggest. Judge Siegel’s Gutierrez and Gonzalez Orders,
however, conclude that the Petitioners’ holding themselves out
as this "fictitious independent law firm" is violative of the
Florida Rules of Professional Ethics and the opinions of The
Florida Bar’s Ethics Committee or its staff. Not only is
Judge Siegel incorrect in his assessment, but he has invaded
this Court’s "exclusive jurisdiction to regulate the admission
of persons to the practice of law and the discipline of
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persons admitted." Florida Constitution, Article V, section
15.
Therefore, Petitioner respectfully requests that this
Court exercise its power pursuant to Article V, section 3 to
issue all writs necessary to the complete exercise of its
jurisdiction, and vacate the Gutierrez and Gonzalez Orders.
Petitioner further requests that this Court affirmatively hold
that the use of a law firm name for staff attorneys of an
insurance company which contains the name of the managing
attorney, such as "Law Office of Timothy W. Harrington," is
not deceptive, and is approved for use in legal proceedings in
all courts of Florida, including on pleadings and
correspondence, so long as all attorneys in the firm are staff
attorneys or employees of their insurance company employer.
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Respectfully submitted,
______________________________________Joseph W. HatchettFlorida Bar No. 0034486Robert J. Telfer IIIFlorida Bar No.: 0128694AKERMAN, SENTERFITT & EIDSON, P.A.301 South Bronough Street, Suite 200Post Office Box 10555Tallahassee, Florida 32302-2555Telephone: (850) 222-3471Facsimile: (850) 222-8628
Miles A. McGrane, IIIFlorida Bar No. 201146MCGRANE & NOSICH, P.A.2801 Ponce de Leon Boulevard12th FloorCoral Gables, Florida 33134Telephone: (305) 442-4800Facsimile: (305) 442-2339
Counsel for Petitioner
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this Petition was sentvia U.S. mail to Honorable Paul Siegel, Circuit Court Judge ofthe Eleventh Judicial Circuit in and for Miami-Dade County,Florida, 73 West Flagler Street, Room 412, Miami, Florida,33130, and to the parties named below on this ________ day ofAugust, 2001.
Dennis L. Durkin, Esq.Robert W. Thiehelm, Jr., Esq.Leigh Anne Kasias, Esq.Baker & Hostetler LLPSunTrust Center, Suite 2300200 South Orange AvenueOrlando, FL 32801-3432Counsel for Progressive Southeastern Insurance Company
Russell A. Dohan, P.A.Suite 1210777 Brickell AvenueMiami, FL 33131Co-counsel for Jorge Delgadoand Maria del Carmen Delgado
Arthur J. England, Jr., Esq.Greenberg Traurig, P.A.1221 Brickell AvenueMiami, FL 33131Counsel for Luis E. Ordoñez
Scott J. Feder, Esq.Scott J. Feder, P.A.Suite 4024649 Ponce de Leon BoulevardCoral Gables, FL 33146Counsel for Stefan Grzymski
Jose M. Francisco, Esq.Jose M. Francisco, P.A.Suite 2103899 N.W. 7th StreetMiami, FL 33126Co-counsel for Jorge Delgadoand Marie del Carmen Delgado
W. Donald Cox, Esq.Hala A. Sandridge, Esq.Fowler, White, Gillen, Boggs,Villareal and Banker, P.A.Suite 1700501 East Kennedy BoulevardTampa, FL 33602Counsel for Nationwide MutualInsurance Company
Michael I. Libman, Esq.Suite 52439 N.W. 7th StreetMiami, FL 33125Counsel in Gutierrez v.Orellano
Richard A. Sherman, Esq.Richard A. Sherman, P.A.Suite 3021777 South Andrews AvenueFt. Lauderdale, FL 33316Co-counsel for OnebeaconInsurance Company
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Jeffrey C. Fox, Esq.Greenspoon, Marde, Hurschfeld,Rafkin, Ross & Berger, P.A.Suite 700100 West Cypress Creek RoadFt. Lauderdale, FL 33309Counsel in Bernstein & BudgetRent-A-Car Systems, Inc.
David L. Deehl, Esq.Deehl & CarlsonSuite 10072600 Douglas RoadCoral Gables, FL 33134Counsel for Evelyn Goodman
Ross B. Gampel, Esq.Klemick & Gampel, P.A.1953 S.W. 27th AvenueMiami, FL 33145Counsel for Jesus Vargas
R. Wade Adams, Esq.Adams & Adams5th Floor66 West Flager StreetMiami, FL 33130-1807Counsel in Gutierrez v.Orellano
Robert A. Glassman, Esq.Law Offices of Robert A.GlassmanSuite 34002101 West Commercial BoulevardFt. Lauderdale, FL 33309-3068Co-counsel for OnebeaconInsurance Company
James G. Gilmour, Esq.Cindy Post Massion, Esq.Law Office of James G. GilmourMuseum Tower, Suite 2800150 West Flager StreetMiami, FL 33130Counsel for Bernard Gran andMarissa Ilene Gran
Edward A. Moss, Esq.Kathleen M. O’Connor, Esq.Michael G. Moore, Esq.Shook, Hardy & Bacon, L.L.P.2400 Miami Center201 South Biscayne BoulevardMiami, FL 33131Counsel for United ServicesAutomobile Association
Luis E. Ordoñez, Esq.Luis E. Ordoñez & AssociatesSuite 1800SunTrust International CenterOne S.E. 3rd AvenueMiami, FL 33131-1704Counsel for Eduardo Nogueiras
Vince J. Rio, III, Esq.Suite 344315 South Calhoun StreetTallahassee, FL 32301-1837Counsel for Amicus FloridaInsurance Council
Dominic L. Brandy, Esq.One Datran Center, Suite 10009100 South Dadeland BoulevardMiami, FL 33156Counsel in Curtin v. ClubAtlantis CondominiumAssociation, Inc.
Kenneth L. Marvin, Esq.
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38TL019991;1
Chief DisciplinaryCounsel/TallahasseeThe Florida Bar650 Apalachee ParkwayTallahassee, FL 32399-2300
Tony P. Korvick, Esq.PresidentDade County Trial LawyersAssociationc/o Porter & KorvickSuite 2460Two South Biscayne BoulevardMiami, FL 33131
Robert T. Lithman, Esq.5th Floor2250 S.W. 3rd AvenueMiami, Florida 33129Counsel for Irmtraud Kurten
J. Anthony Boggs, Esq.Division Director, Legal DivisionThe Florida Bar650 Apalachee ParkwayTallahassee, FL 32399-2300
Arlene K. Sankel, Esq.Chief DisciplinaryCounsel/MiamiCarlow A. Leon, Esq.The Florida BarSuite M100444 Brickell AvenueMiami, FL 33131-2404
William G. Edwards, PresidentDade County Defense BarAssociationc/o Marlow, Connell, Valerium,Abrams, Adler & Newman, P.A.2950 S.W. 27th Avenue, Suite200Miami, FL 33133-3765
______________________________________Robert J. Telfer III
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was prepared in CourierNew, 12-point font, in compliance with Rule 9.210(a)(2) of theFlorida Rules of Appellate Procedure.