May 30, 2007
Ethics In Negligence Case - Sharp Maybe, But Sanctionable?
The Florida Supreme Court recently sanctioned a lawyer for his conduct in a personal injury case (Florida Bar v. Cocalis). The lawyer represented the defendant in a dog bite case. Plaintiffs alleged that the defendant's dog bit their two-year-old daughter, and that the bite caused alopecia (hair loss on the scalp). During the case, plaintiff's counsel refused to stipulate to the records of a treating physician. So, defendant's counsel subpoenaed the records custodian to appear at trial. The custodian, however, mistakenly mailed the records to defendant's counsel. Defendant's counsel returned the records to the custodian and explained that they should be brought to trial.
Here's where the case gets interesting: the mailed copy of the records contained a notation that was not on the original set of document's attached to the doctor's deposition. The new entry documented a call between the doctor and plaintiff's counsel, stating that the doctor advised plaintiff's counsel that he did not believe the alopecia was caused by the dog bite. Unaware of the new entry, plaintiff's counsel finally stipulated to the admission of the documents at trial. Defendant's counsel did not advise plaintiff's counsel that (1) he had received the records from the custodian, (2) that the records contained a new entry, or (3) that the records he sought to admit were not the same as those attached to the depo.
The Florida Supreme Court found the defendant's lawyer guilty of misconduct under Florida's general "misconduct and dishonesty" rule. (The Court of Appeals also reversed the case, finding the trial court had abused its discretion in admitting the mailed records. Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003)). The Florida Supreme Court ordered a public reprimand as well as attendance in a professionalism program and bar ethic's course. Notably, the lawyer had no prior disciplinary charges.
Was a public reprimand (and exclusion of the evidence) warranted in this case? What about the plaintiff's lawyer who failed to follow up with the most current version of the records? This one just strikes me as odd.
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