FOR IMMEDIATE RELEASE - 1/14/2019 Contact: Rex E. Russo, attorney
Re-print, re-publish, re-post, or Phone: 305-442-7393
quote freely, but give credit. Email: Rex@FloridaPropertyLitigation.com
THE CODE OF SILENCE
It was with much skepticism that I read the Third District Court’s Order to Show Cause directed to Miami attorney Bruce Jacobs. See, Bank of America v. Atkin, No. 3D18-1840, (December 14, 2018). Most notably, I was concerned by the following statements:
“Insults or disparaging comments by lawyers to courts in court filings cannot be justified as zealous advocacy because they risk alienating the very judge the lawyer was hired to persuade.”
“[T]his venting can come at a high cost to the client’s interests.”
Essentially, those assertions are an admission that the opinions of the court may be affected by disparaging comments. Are judges not expected to rise above such comments in order to be truly judicious? If a judge’s job is to seek the truth and apply the law, why should such commentary play any role? Is venting not understandable when reason fails? Shouldn’t strong words open a judge’s eyes instead of lead them to shut?
Judge Logue goes on to write that insults “reflect–not attempts at persuasion — but the abandonment of any attempt to persuade.” “Insults usually garner resistence to an idea...” Is the court giving excuses for not giving the matter due consideration?
The court then goes on to list what “insults” Mr. Jacobs allegedly committed. Generally, they are:
• Asserting that the Court violated the standard of review, ignored Florida Supreme Court precedent, and falsified the facts in contradiction to the record.
• Questioning the ability of the Court to be impartial.
• Asserting that a circuit court judge acted with disregard for the rule of law and the client’s constitutional rights, only to have the District Court affirm.
• Stating that a new circuit court judge who rotated into the division changed a favorable ruling because opposing counsel held a fundraiser for the judge.
What qualifies these statements as “insults” as opposed to “criticisms”? Mr. Jacobs was not using profanity, nor name calling, nor making any threats. So, where is the direct contempt upon the court that empowers it to have jurisdiction over the alleged acts? Mr. Jacobs appears to have been merely pointing out what he believes he could prove. If the court considers Mr. Jacobs to have violated the Rules of Ethics regulating attorneys then the court should defer the matter to the Florida Bar, not take it upon itself to make a determination.
I can not speak about the merits of Mr. Jacobs filings before the court, because unlike the Florida Supreme Court’s website which allows access to the briefs, motions, appendix, and records, the only way for the public to view those is to drive out to the court, make a public records request and hope for a favorable response, or persuade a party to provide them. That unfortunately fits well with the code of silence enforced by the court. Freeing access to the records filed before the court would allow for greater opportunity for independent public review, and review by others in the legal community.
Presumptively, the reader is expected to believe that the court is correct and that Mr. Jacobs is wrong. However, I for one do not make that assumption. If allowed to make a presentation to a truly impartial panel, I could also show instances where the court looked past the standard of review on an appeal from a summary judgment and interpolated evidence contrary to the position of the appellant instead of taking the evidence in a light most favorable to the appellant. I could show instances where the court has asserted matters to be “facts” because they were stated in the opposition’s brief – but were lacking in the record. I can show where the court affirmed a lower court order awarding sanctions upon finding it frivolous to sue a lending institution for forged TILA disclosure documents. I can show where the court did not realize that an order appointing a trustee over a condominium association’s property (i.e. over the common elements, rights to collect assessments, rights to enforce collection) did not, and could not, give the trustee immunity for the unconstitutional taking of a unit owner’s property — especially without serving process and allowing an opportunity for the unit owner to be heard in court BEFORE the taking. Were those omissions and incorrect outcomes intentional? I can only tell you what I think. If my hands were not constrained by the court from uncovering likely facts, or if my resources were sufficient, or if someone with clout sided with me, then perhaps one day I could tell you what I know.
So, what impartial panel would hear such complaints? Not the Florida Supreme Court unless they have, and then take, jurisdiction. Misstating facts does not give the Supreme Court jurisdiction. Using an incorrect standard of review only gives the Supreme Court jurisdiction if the misapplication is apparent from the face of the opinion; and, even when jurisdiction is present the Supreme Court has the discretion to deny review, which they most often do. Ignoring precedent does not give the Supreme Court jurisdiction — only stating an incorrect precedent or one that conflicts with another District Court could potentially yield jurisdiction to the Florida Supreme Court.
Intellectual deficiency is a serious enough problem, but if the court’s failure to be logical and precise goes beyond intellectual deficiency and rises to the level of intellectual dishonesty, that is a very serious matter. Intellectual dishonesty will only serve to further encourage crony jurisprudence at the trial court level and disenfranchise the masses. And, it is frustrating. It is frustrating because most want to assume that the appellate court is correct. It is frustrating because just about no one with the clout to do anything about intellectual dishonesty will give the matter sufficient time and consideration to derive whether an attorney’s gripes concerning problems with the appellate court have merit (thus the amplification of intention). It is frustrating because many, while skeptical, have simply given up hope that the system will ever overcome highly political appointments to the bench, which itself entices intellectual dishonesty. So, the court enforces its code of silence in the belief that failing to do so might encourage others to respond with open discontent. Yet, all it takes to incite open discontent is for the court to be intellectually deficient, intellectually dishonest, remiss, condescending, obfuscating (ex. – altering the audio-video recording of oral arguments), conniving (ex. – a judge intentionally making their way onto an appellate panel), deprecating (ex. – asking an insinuating and off-beat question at the start of oral argument), or disrespectful (ex. – walking out on counsel abruptly during oral argument). Although, for the appellate court judge who is intellectually dishonest, yet writes eloquent anti-consumer opinions, the reward might just be an appointment to the Florida Supreme Court.
God, save the State of Florida.
Author - Rex Russo
Over 35 years experience with Appeals, Real Estate Litigation, and Bankruptcy Actions and Adversary Defense.