No Sanctions For “Inarticulate, Evasive and Dishonest” Answers

sunEthics has a sanctions story

Second DCA reverses sanctions imposed against lawyer who gave “dishonest” answers to trial judge in matter involving Facebook research on juror. [Added 4/9/16]

Lawyer represented Defendants in a suit over dissolution of a dental practice.  At the end of the day in which the jury was selected, the trial court warned the jurors to avoid any contact with parties, lawyers, or witnesses, and instructed them not to do “any electronic research on the Internet or any other electronic devices.”

The next morning Lawyer informed the judge that she wanted to strike a juror for cause “because the juror was a Facebook friend of one of [Lawyer’s client’s] employees.”  The judge became upset and admonished Lawyer for violating the court’s instructions to the jury.  When the judge asked Lawyer how she learned the information, Lawyer “gave three different answers to the inquiry.”  None of her answers involved contact with the juror.

Plaintiff moved for a mistrial.  The court found that Lawyer had acted in bad faith and granted the mistrial.  Plaintiff also moved for sanctions against Lawyer.  The court granted the motion and ordered Lawyer to pay the fees and costs of Plaintiff’s counsel.  Lawyer appealed.

The Second DCA reversed.  Lawyer gave the court “inarticulate, evasive, and dishonest answers.  As a consequence, she violated her oath as an attorney to be honest before a tribunal.  See R. Regulating Fla. Bar 4-3.3(a)(1) (‘A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.’); 4-8.4(c) (‘A lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’).”  Despite this, however, Plaintiff had not proved his case for sanctions.  In the view of the appeals court, Lawyer’s “dishonest answers” did not prevent a fair trail from being held and did not result in Plaintiff incurring additional fees.

The appeals court further noted that the trial court’s order regarding refraining from research “was directed to the jurors – not the attorneys or the parties – and could not be a basis for the imposition of sanctions against [Lawyer].  There is no prohibition in Florida law against an attorney researching jurors before, during, and throughout a trial so long as the research does not lead to contact with a juror.  An attorney is not obligated to inform the court of such research unless it affects the fairness of the trial and the administration of justice.” Tenev v. Thurston, __ So.3d __ (Fla. 2d DCA, No. 2D14-4566, 3/9/2016), 2016 WL 886280.

(Mike Frisch)