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Florida Bar Journal

Garnishing a Lawyer’s Trust Account: Actions to be Taken by Lawyer Garnishee

Solo and Small Firm

In 2008, the Florida Supreme Court authorized the garnishment of a lawyer’s trust account pursuant to Arnold, Matheny and Eagan, P.A. v. First American Holdings, Inc., 982 So. 2d 628 (Fla. 2008) ( AME ). Such garnishment is acknowledged in the Comments to Rule 5-1.1 of the Rules Regulating The Florida Bar. AME provided that there is no difference between the garnishment duties imposed upon bank and nonbank garnishees, and specifically imposed a duty upon a lawyer garnishee whose trust account has been garnished for the debts owed by a judgment debtor client to inquire into the status of the trust account and stop payment on trust checks that are not certified or cashier’s checks, even if such checks have been drawn and delivered by the lawyer garnishee.1 This article advises a lawyer garnishee on the legal and ethical duties if its trust account is garnished and offers advice to address payment of debts owed to the lawyer garnishee by the judgment debtor client.

Garnishment Statute
The garnishment statute is set forth in F.S. Ch. 77. F.S. §77.06(2) requires the garnishee to report in its answer and retain all funds maintained in its trust account created for the judgment debtor. The answer shall also state the name and address of the judgment debtor and any other person having or appearing to have an ownership interest in the trust account that has been garnished. The garnishee is required to fully answer the writ of garnishment by explaining the status of the funds held in trust as part of its good faith obligation imposed by the garnishment statute.2 In AME, the Florida Supreme Court quotes the holding of the Third District Court of Appeal in Dixie National Bank v. Chase, 485 So. 2d 1353, 1356 (Fla. 3d DCA 1986), as follows:

[T]his statutory scheme contemplates full disclosure in the garnishee’s answer of all debts owed by the garnishee to the defendant debtor and a simultaneous garnishment of said funds so as to fully protect the garnishor creditor in collecting on a debt due him by the defendant debtor. The garnishee is also protected against possible liability for its actions in serving an answer and garnishing funds so long as it acts in good faith….The statutory scheme [§77.06] cannot tolerate incomplete answers wherein only some of the debts owed are disclosed and garnished.

Further, the garnishee is required to file the answer with the court and the garnishor within 20 days after service of the writ of garnishment in accordance with §77.04. The answer also must disclose 1) whether the garnishee is indebted to the defendant, the judgment debtor, at the time of the filing of the answer with the court or at the time of the service of the writ of garnishmen; 2) in what sum and what tangible and intangible personal property of the defendant that the garnishee has in its possession or control at the time of the answer or at the time of the service of the writ of garnishment; and 3) whether the garnishee knows of any other person indebted to the defendant or who may have any property of the defendant at the time of the answer or at the time of the service of the writ of garnishment. According to these duties, the lawyer garnishee is required to state the amount of the funds held in trust for the defendant who is the judgment debtor client and that such trust funds are owed to the defendant in accordance with Rule Reg. Fla. Bar 5-1.1(a)(1).3

For example, if the lawyer garnishee has in its possession a settlement check payable to the judgment debtor client and the lawyer garnishee’s trust account at any time between the time the writ of garnishment is served upon the lawyer garnishee and the filing of its answer, the check constitutes a debt owed to the judgment debtor client in accordance with AME and must be disclosed in the lawyer garnishee’s answer. Because the check is not the equivalent of funds, the lawyer garnishee must also retain the check pursuant to its garnishee’s duty to retain property under §77.06(2), and must disclose the name of the party who has written the check and the amount of the check as a party who is indebted to the judgment debtor client.4 If the lawyer garnishee has issued a check from the garnished trust account that is not a cashier’s check or a certified check that has not yet been presented for payment prior to the service of the writ of garnishment or the answer, including a check to itself for payment of legal fees or a check to the judgment debtor client, the lawyer garnishee must stop payment on the check.5

If the lawyer garnishee fails to timely file an answer to the writ of garnishment, it is subject to a default judgment under §77.081, equal to the value of the judgment debtor’s funds and property in the lawyer garnishee’s possession during the period between the service of the writ of garnishment and the filing of its answer.6

In order for the lawyer garnishee to make a claim upon the property subject to the writ of garnishment, the lawyer garnishee must file an affidavit with the court in accordance with §77.16(1).7 If such claim is made, then the prevailing party claimant or garnishor is entitled to recover its costs pursuant to §77.16(2), which presumably includes attorneys’ fees. Assuming that the lawyer garnishee does not make a claim to the garnished assets, the lawyer garnishee may be entitled to attorneys’ fees and costs pursuant to §77.28.8 However, if the lawyer garnishee makes a claim to the garnished assets, it is not entitled to attorneys’ fees and costs because it is no longer an innocent stakeholder.9

Facts of AME
In AME, First American Holdings, Inc., obtained a stipulated judgment owed by Preclude, Inc., in the amount of $26,000.10 Arnold, Matheny & Eagan, P.A., was counsel to Preclude, the judgment debtor, in a separate litigation that settled pursuant to a settlement agreement executed on June 14, 2002, between Preclude and Greenleaf Products, Inc., in which Greenleaf agreed to pay Preclude $50,000. First American obtained and served its first writ of garnishment on June 19, 2002, and Arnold Matheny answered the first writ of garnishment that same day stating that it did not have any funds in its possession for Preclude but that Greenleaf owed a debt to Preclude. On June 21, 2002, Arnold Matheny received the $50,000 settlement check from Greenleaf and deposited it into its trust account. On that same day, Arnold Matheny issued trust check no. 13450 to Preclude in the amount of $23,263.76 (preclude check) and trust check no. 13451 to itself for payment of legal fees in the amount of $26,736.24 (legal fees check). The legal fees check was tendered for payment and cleared Arnold Matheny’s trust account on June 24, 2002. At 3:20 pm on June 25, 2002, First American served a second writ of garnishment on Arnold Matheny. Arnold Matheny filed an answer at 4:00 p.m. on June 25, 2002, denying that it had any funds for Preclude in its possession. However, the preclude check had not yet been tendered for payment or cleared Arnold Matheny’s trust account. The issue before the Florida Supreme Court was whether Arnold Matheny should have made an inquiry with its bank as to the balance of its trust account held for Preclude on June 25, 2002, and issued a stop payment on the outstanding preclude check. The court determined that the funds were still in the possession of Arnold Matheny until the trust check was tendered for payment and cleared. Since the preclude check had not cleared and the funds were still in the possession of Arnold Matheny in its trust account maintained for Preclude, Arnold Matheny had a duty as a garnishee to retain such assets by stopping payment of the preclude check. Because Arnold Matheny failed to fully answer the second writ of garnishment or take any of the other steps required of it, it was liable to First American pursuant to the garnishment statute for $23,263.76, which was the amount of the preclude check.11

Options Available to Arnold Matheny and First American
In order to avoid the garnishment issues faced by Arnold Matheny in AME, Arnold Matheny could have taken alternative action.12 The settlement agreement with Greenleaf could have provided that Greenleaf issue checks of $23,263.76 directly to Preclude and $26,736.24 directly to Arnold Matheny’s operating account to avoid the deposit of such funds into the garnished trust account. Assuming that Arnold Matheny did not have in its possession the check payable to Preclude between the time of the service of the second writ of garnishment and the filing of its answer, then Arnold Matheny would not have had any funds or property of Preclude in its possession during the applicable garnishment period. In addition, Arnold Matheny could have issued and delivered a certified or cashier’s check from its trust account to Preclude and itself immediately after receipt of the settlement funds from Greenleaf on June 21, 2002, and, thus, Arnold Matheny would not have had in its possession any funds or property of Preclude at the time of the service of the second writ of garnishment on June 25, 2002.13 Arnold Matheny could have also filed for a charging lien in Preclude’s litigation with Greenleaf, which would have been effective as of the date of the commencement of its involvement in the litigation, allowing its lien to relate back to a date prior to the statutory lien created by the second writ of garnishment.14 The filing of the writ of garnishment creates a statutory lien on the garnished assets in accordance with §77.06(1), but if the statutory lien attaches after the charging lien has attached, then the attorney with the charging lien would likely prevail.15

After learning of the debt owed by Greenleaf to Preclude pursuant to Arnold Matheny’s answer to the first writ of garnishment, First American could have filed a writ of garnishment immediately upon Greenleaf. If such writ was served on Greenleaf prior to the date that its $50,000 settlement check cleared, then Greenleaf would have had to stop payment of the check and answer that it owed a debt to Preclude of $50,000.

Arnold Matheny attempted to answer each writ of garnishment quickly — the second writ was answered 40 minutes after its service. fully disclosing all of the pertinent facts and claims in its answer consistent with Dixie National Bank, the garnishee terminates its duty to report and retain assets that come into the possession of the garnishee after the answer is filed. So, filing an answer with full disclosure quickly benefits the garnishee.

Improper Acts by a Lawyer Garnishee
A trust account violation is one of the most egregious ethical violations by a lawyer.16 The lawyer garnishee may have a retaining lien under common law against the judgment debtor client, but such lien requires the lawyer to retain funds and assets. A retaining lien would not have allowed Arnold Matheny to cash the $50,000 settlement check from Greenleaf if the check had been received after the service of a writ of garnishment, but prior to the answer of the writ of garnishment. It also would not have allowed Arnold Matheny to set off its legal fees from garnished assets in its trust account, since such account would be in dispute pursuant to Rule 5-1.1(f).17 Pursuant to Rule 5-1.1(b), funds held by a lawyer in trust for a specific purpose are not subject to set off for unpaid attorneys’ fees and any such set-off of trust funds for attorneys’ fees is deemed a conversion.18 Florida law has determined that a writ of garnishment prevails over a retaining lien.19 The ethical obligations imposed upon a lawyer garnishee (including the prohibition as to a set-off of trust funds held for a specific purpose) prevents the lawyer garnishee from relying on garnishment cases in Florida involving a bank garnishee as a bank that fully discloses all pertinent facts in its answer is allowed to set-off against a bank account of the judgment debtor being garnished.20

When there are trust funds in dispute as created in AME because two or more parties (including the lawyer) make a claim to such funds, the lawyer is required to hold such funds in trust until otherwise directed by a court.21 A lawyer has a duty to provide a trust accounting to its client and applicable third parties pursuant to Rule 5-1.1(e).22 In fact, Rule 5-1.1(e) requires the lawyer garnishee to notify the judgment creditor of receipt of funds in the trust account, which is consistent with the duty of a garnishee to fully disclose pursuant to §77.06(2).23 The comment to Rule 5-1.1 provides that third parties include creditors of the client who have lawful claims against funds or other property in the lawyer’s custody. The comment goes further to state that a lawyer may have a duty under applicable law (which presumably includes a garnishee’s duty to report and retain funds and property in its possession) to protect third-party claims against wrongful interference by the client, and when a third-party claim is not frivolous, the lawyer must refuse to surrender the property to the client until the claims are resolved. The lawyer should not unilaterally assume to arbitrate the dispute between the client and the third party and should consider depositing the property or funds in dispute into the registry of the court with jurisdiction so that the matter may be adjudicated. Rule 5-1.2(c)(2) imposes an affirmative duty on other lawyers in the law firm to report actions that constitute trust accounting and reporting noncompliance.

The lawyer garnishee’s interest in settlement proceeds is limited to a lien granted by law to secure the lawyers’ fee or expenses and a contract with a client for a reasonable contingent fee. Rule 4-1.8(i) prohibits the lawyer from owning any other proprietary interest in a cause of action or litigation to which the lawyer is representing the judgment debtor.24 So, to the extent that the legal fees check failed to be tendered for payment and clear prior to the filing of Arnold Matheny’s answer to the second writ of garnishment, Arnold Matheny could not argue that it owned a proprietary interest in such settlement proceeds paid by Greenleaf other than a lien or contingent fee right without violating Rule 4-1.8(i). Further, Rule 5-1.1(a)(1) prohibits a lawyer from commingling his or her own funds in trust.25 So even if he could have owned a proprietary interest in the settlement proceeds paid by Greenleaf, Arnold Matheny could not withdraw proceeds placed in trust if the ownership of such proceeds is in dispute under Rule 5.1.1(f).

Finally, a lawyer’s failure to follow the statutory rules imposed upon a garnishee ( e.g. , not reporting or retaining funds or property) could violate numerous other ethical rules and should be avoided.26

Conclusion
If a lawyer’s trust account is garnished by a judgment creditor of a lawyer’s client, the lawyer garnishee should immediately confirm the balance held in trust for the client, should stop payment on any outstanding trust checks for the account, should retain all property in its possession (e.g., any uncashed settlement checks), and should fully disclose all facts relating to the trust account and other property in the lawyer’s possession in its answer filed within 20 days after the service of the writ of garnishment. If the lawyer is owed legal fees by the client, the lawyer should file a claim for fees against the garnished assets in accordance with §77.16, and allow the court to determine the prevailing creditor. The lawyer garnishee should not cash any settlement check in his or her possession between the service of the writ and the filing of its answer and should not set off against the funds held in trust in which the ownership is in dispute without prior court approval. If a lawyer representing a judgment debtor anticipates receiving settlement proceeds, the lawyer should avoid placing those funds in his or her trust account for the judgment debtor and should avoid taking possession of any settlement check because the funds and property would be subject to garnishment. Further, the lawyer should consider obtaining a charging lien to obtain a lien date prior to the statutory garnishment lien. Because of ethical penalties related to trust fund violations, including disbarment, the lawyer should meticulously comply with the applicable legal and ethical rules.

1 Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So. 2d 628, 641, n.16 (Fla. 2008) (providing that the duty to stop payment “does not apply to certified or cashier’s checks issued on or purchased with funds from an attorney trust account”).

2 See Fla. Stat. §77.06(3) (2014); Arnold Matheny, 982 So. 2d at 641.

3 Rule Reg. Fla. Bar 5-1.1(a)(1) provides that “[a] lawyer shall hold in trust, separate from the lawyer’s own property, funds and property of clients or third persons that are in a lawyer’s possession in connection with a representation.”

4 See Arnold Matheny, 982 So. 2d at 634, which states the following: “Importantly, after the check is issued to the payee but before presentment of the check to the payor’s bank, the funds represented by the check remain in the payor’s account. It is not until presentment that issuance of a check constitutes full and absolute payment.”

5 Arnold Matheny, 982 So. 2d at 641, n.16.

6 Bellsouth Adver. & Publ. Corp v. Sec. Bank, N.A., 698 So. 254 (Fla. 1997).

7 Fla. Stat. §77.16(1), (2) (2014) (emphasis added) (“77.16 Claims by third persons to garnisheed property.— (1) If any person other than defendant claims that the debt due by a garnishee is due to that person and not to defendant, or that the property in the hands or possession of any garnishee is that person’s property and shall make an affidavit to the effect, the court shall impanel a jury to determine the right of property between the claimant and plaintiff unless a jury is waived. (2) If the verdict is against the claimant, plaintiff shall recover costs. If the verdict is in favor of the claimant, the claimant shall recover costs against plaintiff.”).

8 Fla. Stat. §77.28 (2014) (“77.28 Garnishment; attorney fees, costs, expenses; deposit required.— Upon issuance of any writ of garnishment, the party applying for it shall pay $100 to the garnishee on the garnishee’s demand at any time after the service of the writ for the payment or part payment of his or her attorney fee which the garnishee expends or agrees to expend in obtaining representation in response to the writ. On rendering final judgment, the court shall determine the garnishee’s costs and expenses, including a reasonable attorney fee, and in the event of a judgment in favor of the plaintiff, the amount is subject to offset by the garnishee against the defendant whose property or debt owing is being garnished. In addition, the court shall tax the garnishee’s costs and expenses as costs. The plaintiff may recover in this manner the sum advanced by him or her, and, if the amount allowed by the court is greater than the amount paid together with any offset, judgment for the garnishee shall be entered against the party against whom the costs are taxed for the deficiency.”); see also Matthews v. First Federal Savings & Loan of Englewood, 571 So. 2d 2 (Fla. 2d DCA 1990).

9 See Ebsary Found. Co. v. Barnett Bank of S. Fla., N.A. , 569 So. 2d 806, 807 (Fla. 3d DCA 1990) (finding that the garnishee was not entitled to attorneys’ fees and costs under Fla. Stat. §77.28 as an innocent stakeholder because it had resisted the writ in order to use the monies it held to set-off a debt owed to it by the debtor. Thus, the garnishee exercised a competing claim against the monies it held).; All Am. Semi-Conductor, Inc. v. Ellison Graphics Corp. , 594 So. 2d 342, 342 (Fla. 4th DCA 1992) (determining garnishee was not entitled to attorneys’ fees and costs under Fla. Stat. §77.28 because it was not “an innocent stake holder drawn into controversy,” but resisted the writ of garnishment on its own behalf and for its own interest); U.S. Pipe & Foundry Co. v. Holcomb Pipe Lines, Inc., 465 F.2d 827, 828 (5th Cir. 1972) (observing that Fla. Stat. §77.28 was “designed to compensate a stake holder innocently drawn into controversy, it is not intended to require a judgment creditor to fund an erroneous legal attack on the entire garnishment proceeding”).

10 See Statement of Facts in First American’s Answer Brief filed with the Florida Supreme Court (Aug. 30, 2007), located at 2007 FL S. Ct. Briefs 1136; 2007 FL S. Ct. Briefs LEXIS 974.

11 Arnold Matheny, 982 So. 2d at 641.

12 A lawyer taking action to avoid a garnishment of trust funds should proceed cautiously. The Comments to Rule Reg. Fla. Bar 5-1.1 provide that a lawyer may have a duty under applicable law to protect the claims made by a third-party against wrongful interference by the client.

13 Arnold Matheny, 982 So. 2d at 639, n.10 (providing that “[T]he drawer of a certified check does not have the authority to stop payment. Florida Power & Light Co. v. Tomasello, 103 Fla. 1076, 139 So. 140, 141 (Fla. 1932). Likewise, ‘[n]either the bank nor a purchaser of a cashier’s check from the bank has a right to ‘stop payment’ on a cashier’s check.’ Warren Finance, Inc. v. Barnett Bank of Jacksonville, N.A., 552 So. 2d 194, 197 (Fla. 1989).”);
Rule Reg. Fla. Bar 5-1.1(j)(4). If the Greenleaf settlement check was paid via a trust check from another attorney, then Arnold Matheny could have accepted such other attorney’s trust account check and issued cashier’s or certified checks before the funds had been credited to Arnold Matheny’s trust account if it has a “reasonable and prudent belief” that the deposit would clear and represent collected funds in its trust account in a reasonable amount of time.

14 See Leiby Taylor Stearns Linkhorst & Roberts, P.A. v. Wedgewood Air Conditioning, Inc., 801 So. 2d 127, 129 (Fla. 4th DCA 2001); Miles v. Katz, 405 So. 2d 750 (Fla. 4th DCA 1981). However, a charging lien only applies to the attorneys’ fees and costs incurred in the matter that created the settlement proceeds whereas a retaining lien can apply to all attorneys’ fees and costs owed to the lawyer; see Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986). In addition, to secure a charging lien, the lawyer must show 1) an express or implied contract between the lawyer and client; 2) an express or implied understanding for payment of attorney’s fees, either dependent on or out of the recovery; 3) either an avoidance of payment or a dispute as to the amount of fees; and 4) timely notice of such charging lien.

15 Laborers Pension Trust Fund-Detroit & Vicinity v. Interior Exterior Specialists Constr. Group, Inc., 824 F. Supp. 2d 764 (E.D. Mich. 2011) (stating the priority between a garnishment lien and a charging lien creditor is based upon the first to file rule). However, the garnishment lien prevailed because Michigan law does not allow for a relation back for a charging lien that is filed in the litigation, whereas Florida law does allow for a relation back for a charging lien.

16 See Fla. Bar v. Mirk, 64 So. 3d 1180, 1185 (Fla. 2011). The Florida Supreme Court has long held that attorney misconduct involving the misuse or misappropriation of client funds is unquestionably one of the most serious offenses a lawyer can commit; Fla. Bar. v. Martinez-Genova, 959 So. 2d 241, 246 (Fla. 2007). Indeed, disbarment is presumed the appropriate discipline when an attorney engages in this type of misconduct. Id. ; see also Fla. Bar v. Valentine-Miller, 974 So. 2d 333, 338 (Fla. 2008) (holding that disbarment is the presumptively appropriate sanction, under both the Florida Standards for Imposing Lawyer Sanctions and caselaw, when a lawyer misappropriates trust funds).

17 See Wintter v. Fabber, 618 So. 2d 375, 377 (Fla. 4th DCA 1993) (retaining lien is a passive lien and rests entirely on the right of an attorney to retain possession of his client’s papers, money, securities, and files as security for payment of the fees and costs earned by the law firm to that point). Further, a retaining lien is not effective for a contingency fee action until the settlement check is tendered for payment and cleared and the proceeds are in the possession of the lawyer engaged on such contingency fee arrangement; see Brickell Place Condo Ass’n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So. 3d 287, 289 and 290 (Fla. 3d DCA 2010) (finding there can be no retaining lien for a contingency fee matter until the occurrence of the contingency which is the collection of cash). In addition, note that a lawyer’s use of trust funds in which the ownership is in dispute can result in an ethical violation as a conversion of trust funds by the lawyer. People v. Gray, 35 P.3d 611 (Colo. 2001).

18 Although not addressed by the Rules Regulating The Florida Bar or common law, the writ of garnishment, the statutory garnishment lien and the duties imposed upon the lawyer garnishee could create a trust account held for a specific purpose pursuant to Fla. Stat. Ch. 77. Florida Bar Ethics Opinion 82-2 (Feb. 15, 1982), provides that the lawyer cannot withdraw funds from a specific purpose trust account for payment of his attorneys’ fees without specific court approval. Further, Florida Bar Ethics Opinion 87-12 (Nov. 2, 1987), provides that the lawyer cannot impose a retaining lien on funds held in a specific-purpose trust account. If a lawyer makes a claim for attorneys’ fees against a trust account that has been garnished, such account becomes subject to Rule Reg. Fla. Bar 5-1.1(f) as to disputed ownership between the garnishor and the lawyer, and the amount in dispute shall be kept separate by the lawyer until the dispute is resolved. A trust account in dispute can also result from a claim made by the lawyer’s client.

19 Wilkerson v. Olcott, 212 So. 2d 119 (Fla. 4th DCA 1968).

20 See Coyle v. Pan American Bank, 377 So. 2d 213 (Fla. 3d DCA 1979).

21 Rule Reg. Fla. Bar 5-1.1(f).

22 Rule Reg. Fla. Bar 5-1.1(e) provides as follows: “Notice of Receipt of Trust Funds; Delivery; Accounting. Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”

23 See Arnold Matheny, 982 So. 2d at 639 (acknowledging the duty to promptly notify third persons, which includes creditors of the client).

24 Rule Reg. Fla. Bar 4-1.8(i) (emphasis added) provides as follows: “Acquiring Proprietary Interest in Cause of Action. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer’s fee or expenses; and (2) contract with a client for a reasonable contingent fee.”

25 Rule Reg. Fla. Bar 5-1.1(a)(1) (emphasis added) provides as follows: “Trust Account Required; Commingling Prohibited. A lawyer shall hold in trust, separate from the lawyer’s own property, funds and property of clients or third persons that are in a lawyer’s possession in connection with a representation. All funds, including advances for fees, costs, and expenses, shall be kept in a separate bank or savings and loan association account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person and clearly labeled and designated as a trust account. A lawyer may maintain funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to pay bank charges relating to the trust account.

26 Rule Reg. Fla. Bar 3-4.3 (proscribes conduct that is unlawful or contrary to honesty or justice); Rule 4-3.3(a)(1) (prohibits knowingly making false statements of material fact or law to a tribunal); Rule 4-3.3(a)(2) (prohibits failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a fraudulent act); Rule 4-3.4(a) (prohibits both the unlawful obstruction of another party’s access to evidence and the unlawful concealment of material that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding); Rule 4-3.4(d) (prohibits the intentional failure to comply with legally proper discovery requests); Rule 4-4.1(a) (mandates that lawyers not make false statements of material fact or law to third persons); Rule 4-8.4(c) (prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation); Rule 4-8.4(d) (prohibits conduct in connection with the practice of law that is prejudicial to the administration of justice).

Thomas O. Wells, J.D., LL.M. in taxation and CPA, practices tax, transactional, estate, and wealth preservation law in Coral Gables in the firm of Wells & Wells, P.A. He is board certified by The Florida Bar in tax law and was named 1999 CPA of the Year in Business and Industry by the Florida Institute of Certified Public Accountants.

The author thanks Diane Wells, of Coral Gables, for her insightful comments and assistance in researching this topic.

This article is submitted on behalf of the General Practice, Solo and Small Firm Section, Teresa Byrd Morgan, chair, and Monica Elliott, editor.

Solo and Small Firm