defendants' rule 1.150 motion to strike sham pleadings-july 25, 2014

8/12/2019 Defendants' Rule 1.150 Motion to Strike Sham Pleadings-July 25, 2014

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IN THE CIRCUIT COURT OF THEFIFTH JUDICIAL CIRCUIT OF FLORIDAN AND FOR MARION COUNTYCASE NO.: 2013-1 IS-CATREVERSE MORTGAGE SOLUTIONS, INC.,

Plaintiff,vs.NEIL J. GILLESPIE AND NEIL 1. GILLESPIE, - SOLE TRUSTEE OF THE GILLESPIE NFAMILY LIVING TRUST AGREEMENT CJlDATED FEBRUARY 10, 1997, ET AL,

I.Defendants. . . C::1 .r n. CO _ /

DEFENDANTS' RULE 1.150 MOTION TO STRIKE SHAM PLEADINGS,PLAINTIFF'S VERIFIED COMPLAINT TO FORECLOSE HOME EQUITY LOAN

I. Defendant(s) NEIL 1. GILLESPIE, henceforth in the first person, a disabled nonlawyerreluctantly appearing pro se for himself and his interests as SOLE TRUSTEE of THEGILLESPIE FAMILY LIVING TRUST AGREEMENT DATED FEBRUARY 10,1997("Trust"), move pursuant to Rule I.l50(a) , Fla.R.Civ.P. to strike sham pleadings, the Plaintiff's"Verified Complaint to Foreclose Home Equity Loan" ("Verified Complaint"), and states:2. This motion is filed as a placeholder or caveat, and only set for hearing prior to thePlaintiff scheduling any hearings, and pending exhaustion of federal judicial review, federaladministrative review, investigative law enforcement agency inquiry, and The Florida Barinquiry. On March 8 2014 Bar Counsel Theodore P. Littlewood gave notice by letter to BarryRodney Davidson, counsel for Ms. Parsons, (Exhibit I)

Complaint by Neil 1. Gillespie against Danielle Nicole ParsonsThe Florida Bar File No. 2014-30,525 (9A).The above-referenced matter has been forwarded to The Florida Bar's Orlando BranchOffice for consideration. You may expect to hear from Bar Counsel (in that office) in thenear future.


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Bar Counsel Patricia Ann Toro Savitz gave notice to Mr. Davidson by letter April 8, 2014,

Please be advised that this case was recently transferred to the Orlando Branch Office ofThe Florida Bar. Please send all correspondence in this matter, referencing the above

case number to the attention of the undersigned, by U.S. Mail at the following address:

Patricia Ann Toro SavitzThe Florida Bar1000 Legion Place, Suite 1625Orlando, Florida 32801-1050

Further, both the complainant and the respondent are directed to notify this office, inwriting, of any pending civil, criminal, or administrative litigation which pertains to thisgrievance. Please note that this is a continuing obligation should new litigation developduring the pendency of this matter. If you have any questions or comments, please do not

hesitate to contact me.

The letter of Ms. Savitz appears at Exhibit 2. The Florida Bar is also investigation me for UPL.

3. On information and belief, I am the only remaining Defendant, personally, and for my

interests as sole trustee of the Trust. Attorney Steven H.L. Bowman (Bar ID 434396) prepared

the Trust for my parents in 1997. But Mr. Bowman was disbarred for 10 years on July 7, 2010,

and cannot represent me or the Trust. See Order SC10-722 at Exhibit 3. Our family lawyer

cannot represent me due to conflicts of interest; representation of me at the HECM closing, and

representation of a Defendant in this case, OAK RUN HOMEOWNERS ASSOCIATION, INC.

I am indigent and unable to obtain adequate private counsel, and reluctantly appear pro se.

4. On June 24, 2014 I filed Notice of Trust with the Clerk, a copy of which appears at

Exhibit 4, with the Clerks receipt for $41, and paper copy of the online docket in the probate

case for the Estate of Penelope M. Gillespie, Probate Case No. 42-2014-CP-001060-AXXX-XX.

The Notice of Trust states, inter alia,

2. I am Neil J. Gillespie, the personal representative as defined by F.S. 198.01(2),of the Estate of Penelope M. Gillespie. I deposited the decedents Last Will andTestament, and death certificate, with the Clerk, Marion County Florida, File No.42-0000-WF-022452-AXXX-XX.


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3. The decedents Will declares me as one of three children in the third paragraph.4. The decedents Will appoints me Personal Representative in the seventh paragraph,

and states,I give to my Personal Representative at any time acting hereunder, full power andauthority to do all acts which I might or could do if living, including authority to

sell without order of court any real or personal property belonging to my estate andto settle and compound any claims, either in favor of or against my estate, as tohim/her shall seem best for the purpose aforesaid, to execute any and all proper andnecessary deeds, conveyances, receipts and acquittances.

5. I hereby file Affidavit of No Florida Estate Tax Due, which is attached.6. The decedent only left personal property exempt as provided by F.S. 732.402(2).7. Bruce Morreale of H&R Block prepared the decedent's final federal tax return form 10408. Mark Gillespie paid the funeral bill September 18, 2009; filed the decedents final

federal tax return April 10, 2010; and paid the final taxes owed to the InternalRevenue Service.

9. All enforceable claims of the decedent's creditors have been paid. There are no assets

of the decedent left to transfer. The Trust avoided probate of the estate. There is noreason to open administration of the estate. No Letters Testamentary are needed, andnone will be obtained.

10. My homestead is the sole asset of the Trust. My notice of homestead is attached.11. I am the sole Trustee of the Trust. My name and address appear below. I am not a lawyer

5. Notice of Defendants Consent to Judgment was entered July 8, 2013 by counsel of

record for MARK GILLESPIE and JOETTA GILLESPIE AKA UNKNOWN SPOUSE OF

MARK GILLESPIE and ELIZABETH BAUERLE NKA ELIZABETH BIDGOOD. (Exhibit 5).

6. Mark Gillespie resigned as co-trustee of the Trust to avoid breach of Trust after giving

consent to judgment. The property in foreclosure is the only asset of the Trust.

A trustee shall take reasonable steps to take control of and protect the trust property.Section 736.0809, Florida Statutes, Control and protection of trust property.

A trustee shall take reasonable steps to enforce claims of the trust and to defend claimsagainst the trust. Section 736.0811, Florida Statutes, Enforcement and defense of claims.

6. Mark Gillespie quit-claimed any interest in the property to me July 7, 2014. The Quit-

Claim Deed was filed with the Clerk July 9, 2014, and a copy appears at Exhibit 6.

A trustee shall take reasonable steps to compel a former trustee or other person to delivertrust property to the trustee and, except as provided in s. 736.08125, to redress a breach oftrust known to the trustee to have been committed by a former trustee. Section 736.0812,Florida Statutes, Collecting trust property.


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RULE 1.150. SHAM PLEADINGS

7. The verification found in the foreclosing Plaintiffs Verified Complaint is a sham

pleading and should be stricken pursuant to Rule 1.150(a) Fla.R.Civ.P.

RULE 1.150. SHAM PLEADINGS

(a) Motion to Strike. If a party deems any pleading or part thereof filed by another partyto be a sham, that party may move to strike the pleading or part thereof before the causeis set for trial and the court shall hear the motion, taking evidence of the respectiveparties, and if the motion is sustained, the pleading to which the motion is directed shallbe stricken. Default and summary judgment on the merits may be entered in thediscretion of the court or the court may permit additional pleadings to be filed for goodcause shown.

(b) Contents of Motion. The motion to strike shall be verified and shall set forth fullythe facts on which the movant relies and may be supported by affidavit. No traverse ofthe motion shall be required.

Florida Supreme Court Verification Rule

8. The Florida Supreme Court [SC09-1460] amended Rule 1.110(b) to require verification

of mortgage foreclosure complaints involving residential real property. In re Amendments to the

Florida Rules of Civil Procedure, 44 So.3d 555, 556 (Fla. 2010):

First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaintsinvolving residential real property. The primary purposes of this amendment are (1) toprovide incentive for the plaintiff to appropriately investigate and verify its ownership ofthe note or right to enforce the note and ensure that the allegations in the complaint areaccurate; (2) to conserve judicial resources that are currently being wasted oninappropriately pleaded .lost note. counts and inconsistent allegations; (3) to prevent thewasting of judicial resources and harm to defendants resulting from suits brought byplaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority tosanction plaintiffs who make false allegations.

See also In re Amendments to the Fla. Rules of Civil ProcedureForm 1.996 (Final Judgment of

Foreclosure), 51 So.3d 1140, 114041 (Fla.2010) (In light of recent reports of alleged

document fraud and forgery in mortgage foreclosure cases, this new requirement is particularly

important.).


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9. Florida Rule of Civil Procedure 1.110(b) and section 92.525, Florida Statutes (2011),

govern verification. Rule 1.110(b) provides, in pertinent part, as follows:

When filing an action for foreclosure of a mortgage on residential real property the

complaint shall be verified. When verification of a document is required, the documentfiled shall include an oath, affirmation, or the following statement:

Under penalty of perjury, I declare that I have read the foregoing, and the facts allegedtherein are true and correct to the best of my knowledge and belief.

Section 92.525 Florida Statutes provides, in pertinent part, as follows:

(1) When it is authorized or required by law, by rule of an administrative agency, or byrule or order of court that a document be verified by a person, the verification may beaccomplished in the following manner:

(a) Under oath or affirmation taken or administered before an officer authorizedunder s. 92.50 to administer oaths; or(b) By the signing of the written declaration prescribed in subsection (2).

(2) A written declaration means the following statement: Under penalties of perjury, Ideclare that I have read the foregoing [document] and that the facts stated in it are true,followed by the signature of the person making the declaration, except when averification on information or belief is permitted by law, in which case the words to thebest of my knowledge and belief may be added. The written declaration shall be printedor typed at the end of or immediately below the document being verified and above the

signature of the person making the declaration.

FRAUD ON THE COURT

10. Section 837.06, Florida Statutes, governs False official statements.

837.06 False official statements.Whoever knowingly makes a false statement inwriting with the intent to mislead a public servant in the performance of his or her official

duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s.775.082 or s. 775.083.

11. Persons who falsely verified the Verified Complaint:

Plaintiffs counsel, Danielle N. Parsons, Esq. Fla. Bar No.: 0029364McCalla Raymer LLC, 225 E. Robinson St. Suite 660, Orlando, FL 32801

Debbie Sims, Vice President, Reverse Mortgage Solutions, Inc. (RMS),2727 Spring Creek Drive, Spring, TX 77373


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PLAINTIFFS DEFECTIVE RULE 1.110(b) VERIFICATION OF THE COMPLAINTNo Identifiable Exhibits are Attached to the Verified Complaint

12. There are no Exhibits attached to the Verified Complaint that are identifiable with the

pleadings. The Verified Complaint alleges at paragraph 2, Copies of the Note and Mortgage are

attached as Exhibits "A" and "B," respectively. This is false. There is nothing attached as

Exhibits "A" and "B," respectively.

13. Instead, defective copies of the HECM Note and Second Note taken from my HUD

complaint of August 8, 2012 appear as Exhibits 11 and 12, and are missing the Direct

Endorsement Allonge that became a permanent part of said Note on May 29, 2008 which date

occurred a week before the HECM closing June 5, 2008, when the Note and Mortgage were

executed and delivered from the Borrowers to the Lender, Liberty Reverse Mortgage, Inc.

Somehow Liberty sold a nonexistent Note and Mortgage to Bank of America. This is a fatal

defect to the chain of custody of the HECM Note and Mortgage.

14. Likewise, defective copies of the HECM Mortgage and Second Mortgage taken from my

HUD complaint are attached as Exhibits 32 and 33, and show interlineation after execution,

hand-written alterations, not initialed and not dated, which vitiates the Mortgage. This defect

only became known to me in July 2012 when I found it filed with the Clerk.

15. Paragraph 3 of the Verified Complaint alleges, Copies of the relevant Assignments of

Mortgage are attached as Composite Exhibit "C." This is false. Nothing is attached as

Composite Exhibit "C." Instead, a single unmarked page, Assignment of Mortgage, March 27,

2012, from Bank of America to the Plaintiff, appears at the end of the Verified Complaint. Any

previous assignments of mortgage are missing.


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THIS IS NOT A COMMERCIAL FORCLOSURECounsels Misrepresentation: Civil Cover Sheet Form 1.997 attached to Verified Complaint

16. Counsel wrongly filed this action as a Commercial foreclosure $50,001 -$249,999

shown on Form 1.997 CIVIL COVER SHEET, II. TYPE OF CASE, attached to the Verified

Complaint, and signed by Plaintiffs counsel Danielle Parsons, who represented I CERTIFY

that the information I have provided in this cover sheet is accurate to the best of my knowledge

and belief. Counsels certification is false. This properly is the homestead of Neil Gillespie

under Section 4, Article X of the Florida Constitution. This action is a Homestead residential

foreclosure $50,001 -$249,999. Oak Run is a residential 55+ community. No commercial

activity is permitted. The HECM reverse mortgage was made on the residential property. It

appears counsels false declaration was intended to deceive the Clerk and the Court that this is a

commercial foreclosure, in violation of F.S. 837.06, False official statements.

17. The Verified Complaint alleges at paragraph 4 entitlement to enforce the Note and

Mortgage, but the Plaintiff has not provided copies of the Note and Mortgage as pled. Therefore

the Verified Complaint is a SHAM PLEADING (Rule 1.150) and must be stricken.

18. The Plaintiff alleged in the Verified Complaint, paragraph 2, Copies of the Note and

Mortgage are attached as Exhibits A and B respectively. Plaintiffs statement is false.

There are no Exhibits A and B attached to the Complaint. The only exhibits attached to the

Complaint are numbered, not lettered. Those exhibits are numbered 11, 12, 32 and 33 and

therefore impossible to relate to the Verified Complaint or the Plaintiffs alleged claims therein.

Therefore the Verified Complaint is a SHAM PLEADING (Rule 1.150) and must be stricken.

19. The Verified Complaint, in paragraph 3, states The described subject Mortgage was

subsequently assigned to Plaintiff. Copies of the relevant Assignments of Mortgage are attached

as Composite Exhibit "C." Plaintiffs statement is false. There is no Composite Exhibit C


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attached to the Complaint. There is a single page attached purporting to be an Assignment of

Mortgage attached but it is not marked in any way as an Exhibit or Composite and therefore

impossible to relate to the Verified Complaint or the Plaintiffs alleged claims therein. Therefore

the Verified Complaint is a SHAM PLEADING (Rule 1.150) and must be stricken.

20. The Verified Complaint is verified pursuant to Rule 1.110(b), Fla. R. Civ. P., by Debbie

Sims, Vice President, Reverse Mortgage Solutions, Inc., on December 20, 2012, and includes the

following statement:

UNDER PENALTY OF PERJURY, I declare that I have read the foregoing and that thefacts alleged therein are true and correct to the best of my knowledge and belief.

21. Debbie Sims, under penalty of perjury, declared that she read the Verified Complaint and

that the facts alleged therein were true and correct. The Verified Complaint at paragraph 2 states

a fact: Copies of the Note and Mortgage are attached as Exhibits A and B respectively.

This fact is not true and correct. This statement is false. Exhibits A and B are not attached.


22. Debbie Sims, under penalty of perjury, declared that she read the Verified Complaint and

that the facts alleged therein were true and correct. The Verified Complaint at paragraph 3 states

a fact: Copies of the relevant Assignments of Mortgage are attached as Composite Exhibit "C."

This fact is not true and correct. This statement is false. Composite Exhibit C is not attached.


SANCTIONS: DISMISS THE FORECLOSURE WITH PREJUDICE

23. The Court has the inherent power to sanction perjury, misconduct and other fraud by the

Plaintiff. A plain reading of section 57.105(1) Florida Statutes shows sanctions may be awarded

upon the courts initiative.


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24. I respectfully request the Court on its own initiative to DISMISS WITH PREJUDICE

the Plaintiffs VERIFIED COMPLAINT TO FORECLOSE HOME EQUITY CONVERSION

MORTGAGE as a sanction imposed for perjury by Debbie Sims who verified for the Plaintiff

under penalty of perjury facts as true and correct, when those facts were not true and correct,

contrary to her Verification as Vice President for the Plaintiff made under Rule 1.110(b)

Fla.R.Civ.P. Therefore the Verified Complaint is a SHAM PLEADING (Rule 1.150).

25. Debbie Sims, by alleging facts under penalty of perjury as true and correct, when those

facts are not true and correct, violated section 837.06, Florida Statutes, False official statements.

837.06 False official statements.Whoever knowingly makes a false statement inwriting with the intent to mislead a public servant in the performance of his or her officialduty shall be guilty of a misdemeanor of the second degree, punishable as provided in s.775.082 or s. 775.083.

Debbie Sims knowingly made a false statement in writing with the intent to mislead this Court to

benefit the Plaintiff in this HECM reverse mortgage residential home foreclosure. Therefore the

Verified Complaint is a SHAM PLEADING (Rule 1.150) and must be stricken.

Danielle N. Parsons, Esq. - Officer of the CourtLack of Candor Before The Tribunal

26. Plaintiffs counsel, Danielle N. Parsons, Esq. (Fla. Bar No.: 0029364), submitted the

Verified Complaint to the Court and bears responsibility for perjury by Debbie Sims made on

behalf of the Plaintiff in this residential mortgage foreclosure. As an attorney, Ms. Parsons is an

officer of this Court, and her conduct is subject to judicial supervision and scrutiny:

Attorney is an officer of the court and an essential component of the administration ofjustice, and, as such, his conduct is subject to judicial supervision and scrutiny. State exrel. Florida Bar v. Evans, 94 So.2d 730 (1957).

27. As an attorney, Ms. Parsons must comply with the Rules of Professional Conduct,

including candor before the tribunal, as described in the Florida Bar Informational Packet,


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Candor Before The Tribunal, that is filed with this motion. The lawyer's duty not to assist

witnesses, including the lawyer's own client, in offering false evidence stems from the Rules of

Professional Conduct, Florida statutes, and caselaw.

Rule 4-1.2(d) prohibits the lawyer from assisting a client in conduct that the lawyerknows or reasonably should know is criminal or fraudulent.

Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or assisting a witness to testifyfalsely.

Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct orknowingly assisting another to do so.

Rule 4-8.4(b) prohibits a lawyer from committing a criminal act that reflects adversely on

the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud,deceit, or misrepresentation.

Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to theadministration of justice.

Rule 4-1.6(b) requires a lawyer to reveal information to the extent the lawyer reasonablybelieves necessary to prevent a client from committing a crime.

This rule, 4-3.3(a)(2), requires a lawyer to reveal a material fact to the tribunal whendisclosure is necessary to avoid assisting a criminal or fraudulent act by the client, and 4-3.3(a)(4) prohibits a lawyer from offering false evidence and requires the lawyer to takereasonable remedial measures when false material evidence has been offered.

Rule 4-1.16 prohibits a lawyer from representing a client if the representation will resultin a violation of the Rules of Professional Conduct or law and permits the lawyer towithdraw from representation if the client persists in a course of action that the lawyer

reasonably believes is criminal or fraudulent or repugnant or imprudent. Rule 4-1.16(c)recognizes that notwithstanding good cause for terminating representation of a client, alawyer is obliged to continue representation if so ordered by a tribunal.

28. Florida caselaw prohibits lawyers from presenting false testimony or evidence. Kneale v.

Williams, 30 So. 2d 284 (Fla. 1947), states that perpetration of a fraud is outside the scope of the

professional duty of an attorney and no privilege attaches to communication between an attorney

and a client with respect to transactions constituting the making of a false claim or the


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perpetration of a fraud. Dodd v. The Florida Bar, 118 So. 2d 17 (Fla. 1960), reminds us that "the

courts are . . . dependent on members of the bar to . . . present the true facts of each cause . . . to

enable the judge or the jury to [decide the facts] to which the law may be applied. When an

attorney . . . allows false testimony . . . [the attorney] . . . makes it impossible for the scales [of

justice] to balance." See The Fla. Bar v. Agar, 394 So. 2d 405 (Fla. 1981), and The Fla. Bar v.

Simons, 391 So. 2d 684 (Fla. 1980). To permit or assist a client or other witness to testify falsely

is prohibited by F.S. 837.02 which makes perjury in an official proceeding a felony, and by

F.S. 777.011 which proscribes aiding, abetting, or counseling commission of a felony.

29. Oath of Admission to The Florida Bar (Exhibit 7). The general principles which should

ever control the lawyer in the practice of the legal profession are clearly set forth in the

following oath of admission to the Bar, which the lawyer is sworn on admission to obey and for

the willful violation to which disbarment may be had.

"I do solemnly swear:

"I will support the Constitution of the United States and the Constitution of the State of Florida;

"I will maintain the respect due to courts of justice and judicial officers;

"I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, norany defense except such as I believe to be honestly debatable under the law of the land;

"I will employ for the purpose of maintaining the causes confided to me such means only as areconsistent with truth and honor, and will never seek to mislead the judge or jury by any artifice

or false statement of fact or law;

"I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept

no compensation in connection with their business except from them or with their knowledgeand approval;

"To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court,but also in all written and oral communications;


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"I will abstain from all offensive personality and advance no fact prejudicial to the honor orreputation of a party or witness, unless required by the justice of the cause with which I amcharged;

"I will never reject, from any consideration personal to myself, the cause of the defenseless or

oppressed, or delay anyone's cause for lucre or malice. So help me God."

30. Creed Of Professionalism (Exhibit 8)

I revere the law, the judicial system, and the legal profession and will at all times in myprofessional and private lives uphold the dignity and esteem of each.

I will further my profession's devotion to public service and to the public good.

I will strictly adhere to the spirit as well as the letter of my profession's code of ethics, to theextent that the law permits and will at all times be guided by a fundamental sense of honor,

integrity, and fair play.

I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will notimproperly permit my silence or inaction to mislead anyone.

I will conduct myself to assure the just, speedy and inexpensive determination of every actionand resolution of every controversy.

I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all timesact with dignity, decency, and courtesy.

I will respect the time and commitments of others.

I will be diligent and punctual in communicating with others and in fulfilling commitments.

I will exercise independent judgment and will not be governed by a client's ill will or deceit.

My word is my bond.

WHEREFORE, The verification found in the foreclosing Plaintiffs Verified Complaint

is a sham pleading and should be stricken pursuant to Rule 1.150(a) Fla.R.Civ.P. Unfortunately,

the Plaintiffs Vice President Sims, and Plaintiffs counsel of record, Ms. Parsons, have violated,

The Florida Supreme Court Verification Rule [SC09-1460]

Florida Rule of Civil Procedure 1.110(b) and section 92.525, Florida Statutes (2011)

Section 837.06, Florida Statutes, False official statements


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Furthermore, the Plaintiffs counsel of record Ms. Parsons, also violated,

The Rules of Professional Conduct, Candor before the Tribunal.

The Oath of Admission to The Florida Bar.

The Creed of Professionalism.

The Court has the inherent power to sanction perjury, misconduct and other fraud by the

Plaintiff. A plain reading of section 57.105(1) Florida Statutes shows sanctions may be awarded

upon the courts initiative. Notwithstanding the caveat in paragraph 2, or in lieu of the caveat,

I respectfully request this Court sanction the Plaintiff upon the courts initiative and Dismiss

the Foreclosure with Prejudice, and any other relief the Court deems just and proper.

VERIFICATION OF NEIL J. GILLESPIE

Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged

therein are true and correct to the best of my knowledge and belief.

RESPECTFULLY SUBMITTED July 25, 2014.

NEIL J. GILLESPIE and NEIL J. GILLESPIE SOLE TRUSTEE OF THE GILLESPIEFAMILY LIVING TRUST AGREEMENT DATED FEBRUARY 10, 19978092 SW 115th LoopOcala, Florida 34481Phone: 352-854-7807Email: [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have furnished a true and correct copy of the foregoing toDanielle N. Parsons, Esq., McCalla Raymer LLC, 225 E. Robinson St. Suite 660, Orlando, FL32801, [email protected] via email today July 25, 2014, and to The Florida Bar,Bar Counsel Patricia Ann Toro Savitz, [email protected], UPL Counsel Ghunise [email protected], and to Executive Director John F. Harkness, [email protected].

NEIL J. GILLESPIE


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THE FLORIDA BAR651EAST JEFFERSONSTREET

JOHN F.HARKNESS,JR. TALLAHASSEE,FL 32399-2300 850/561-5600EXECUTIVEDIRECTOR WWW.FLORIDABAR.ORG

March28,2014

Mr.BarryRodneyDavidsonBarclaysFinancialCenter 1111 BrickellAveFI 25Miami,FL33131-3101Re: ComplaintbyNeilJ. GillespieagainstDanielleNicoleParsons

TheFloridaBarFileNo.2014-30,525(9A) DearMr.Davidson:Theabove- referencedmatterhasbeenforwardedtoTheFloridaBar'sOrlandoBranchOfficeforconsideration. YoumayexpecttohearfromBarCounsel(inthatoffice)inthenearfuture.Sincerely,

TheodoreP.LittlewoodJr.,BarCounselAttorneyConsumerAssistanceProgramACAPHotline866-352-0707cc: Mr.NeilJ. Gillespie

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TheFlorida BarOrlando Branch Office

TheGatewayCenterJohn F.Harkness,Jr.ExecutiveDirector

1000LegionPlace,Suite1625Orlando Florida32801-1050 (407)425-5424www.FLORIDABAR.org

April8 2014Viaemailonlyatbdavidson@hunton.colTIBarryRodneyDavidsonCounselforRespondentBarclaysFinancialCenter1111 BrickellAve.FI 25Miami,FL33131-3101Re: ComplaintofNeilJ. GillespieagainstDanielleNicoleParsonsTheFloridaBarFileNo.2014-30,525(09A)DearMr.Davidson:PleasebeadvisedthatthiscasewasrecentlytransferredtotheOrlandoBranchOfficeofTheFloridaBar. Pleasesendallcorrespondenceinthismatter,referencingtheabovecasenumbertotheattentionof theundersigned,by u.s. Mailatthefollowingaddress:

PatriciaAnnToroSavitz TheFloridaBar 1000LegionPlace,Suite1625 Orlando,Florida32801-1050

Further,boththecomplainantandtherespondentaredirectedtonotifythisoffice,inwriting,ofanypendingcivil,criminal, or administrativelitigationwhichpertainstothisgrievance.Pleasenotethatthisisacontinuingobligationshouldnewlitigationdevelopduringthependencyof thislTIatter. If youhaveanyquestionsor comments,pleasedonot11esitatetocontactme.Sincerely,

ofI ~PatriciaAnnToroSavitzBarCounselPAS/rmpcc: NeilJ. Gillespie,complainant

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SupremeC ourt o J f lor tbaW E D N E S D A Y , J U LY 21, 2010

C A S ENO.:SCI0-722L o w e r TribunalNo(s).: 2010-31,279(058)THE FLORIDA BAR vs. STEVEN HILL LEEB O W M A N

C o m pla ina nt(s) Respo nd ent(s)The u nco ntes ted r epo r t o f th e r e fe r ee is a pp r o ved a nd r espo ndent i s disb a r r ed

fo r ten years. Respo ndent is current ly suspe nded, there fo re the disba rm ent isef fec t ive im m ed ia te ly .Respondent isf ur t he r directed to comply with a l l o ther terms and conditionso fth e r epo r t a nd th e c o nsent jud g m ent .

J u d g m e n t isentered for T he Flo r id a Ba r , 651 EastJ e f f e r s o n S t r ee t ,Tal lahassee, Flor ida 32399-2300, for recovery of costs f rom Steven Hil l LeeB o w m a n in the a m o u n t o f 6,528.79, fo r which s u m l e t execution issue.

N o t final unti l t ime expires to file m o t i o n fo r rehearing, and if fi led,d e te r m ined . The fi ling o f am o t io n fo r rehearing shall no t a l te r the effective date o fthis disbarment.A Tr u e C o p yTest:

h o m a sD, H a l lC l e r k , S u p re m e C o u rt T : >VX.pr FvrXb hpServed:K E N N E T H L A W R E N C E M A R V I NJ O A N N MA RIE S T A L C U PS TEV EN H ILL L E E B O W M A NH ON . MA RK W . M O S E L E Y , J U D G E

3


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I. ' i : GO IN THECIRCUITCOURTFORIN RE:ESTATEOF \ j ~ ~ \ 2.4 \ , MARIONCOUNTY,FLORIDA" r ~ t. ',i'\' : ; PROBATEDIVISION PENELOPEM. G I L L ~ ; P I E 9 - h n\i i ~ : .i- T\ ' ' ' f \ ( 1Decea gj. r \nt C. I FileNo.: O lLt Cf lObO ,

NOTICEOFTRUSTPENELOPEM.GILLESPIE,aresidentof MarionCounty,Florida,whodiedon September

16,2009,wastheGrantorof atrustentitled:GillespieFamilyLivingTrustAgreementdatedFebruary10,1997,which isatrustdescribedinF.S.733.707(3),and is liablefortheexpensesofthe administrationof the decedent's estate and enforceable claimsof the decedent'screditors to theextentthedecedent'sestateisinsufficienttopaythem,asprovidedinF.S.733.607(2).I. Theclerkshallfileandindexthisnoticeoftrustin thesamemannerasacaveat,unlessthereexistsaprobateproceedingfortheGrantor'sestateinwhichcasethisnoticeof trustmustbe

filedintheprobateproceedingandtheclerkshallsendacopytothepersonal representative.2. I am Neil J. Gillespie, the personal representative as defined by F.S. 198.0I(2),of the Estateof PenelopeM.Gillespie.Idepositedthedecedent'sLast Will nd Testament anddeathcertificate,withtheClerk,MarionCountyFlorida,FileNo.42-0000-WF-022452-AXXX-XX.

3. Thedecedent'sWilldeclaresmeasoneof threechildrenin thethirdparagraph.4. Thedecedent'sWillappointsmePersonalRepresentativein theseventhparagraph,andstates,

"I givetomyPersonalRepresentativeatanytimeactinghereunder,fullpowerandauthoritytodoallactswhichImightor coulddoif living,includingauthoritytosellwithoutorderof courtanyrealor personalpropertybelongingtomyestateandtosettleandcompoundanyclaims,eitherinfavorof or againstmy estate,astohimlhershallseembestforthepurposeaforesaid,toexecuteanyandallproperandnecessarydeeds,conveyances,receiptsandacquittances."

5. IherebyfileAffidavitof NoFloridaEstate Due,whichisattached.6. Thedecedentonly leftpersonalpropertyexemptasprovidedbyF.S.732.402(2).7. BruceMorrealeofH&R Blockpreparedthedecedent'sfinalfederaltaxreturnform I040A.8. MarkGillespiepaidthefuneralbillSeptember18,2009;filedthedecedent'sfinalfederaltaxreturnApril10,20 I0;andpaidthefinaltaxesowedtotheInternalRevenueService.9. All enforceable claimsof the decedent's creditors have been paid. There are no assetsof thedecedentlefttotransfer.TheTrustavoidedprobateofthe estate.Thereisnoreasontoopenadministrationof theestate.NoLettersTestamentaryareneeded,andnonewillbe obtained.10. My homestead is the sole assetof the Trust.My notice of homestead is attached.II. IamthesoleTrusteeof theTrust.Mynameandaddressappearbelow.Iamnotalawyer.

SignedonJune24,2014Telephone:352-854-7807Email:[email protected]

4


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DR-312Affidavit of NoFloridaEstateTaxDueII II R.08/13Rule12C-3.008FloridaAdministrativeCode

DEPARTMENTOF REVENUE

ForofficialuseonlFlorida MarionStateof _ County of _

NeilJ. Gillespie t h e u n d e r ~ g n e d d o h e ~ b y ~ ~ e(printnameof personalrepresentative)

1. Iamthepersonalrepresentativeasdefined in section198.01 or section731.201,FloridaStatutes,asthecasemaybe,of theestateof _P_e_n_e_lo_p_e_M_G_iII_e_s_pi_e _09 16 09 (printnameof decedent)

2. Thedecedentreferencedabovediedon / / ,andwasdomiciled(asdefined ins. 198.015,ES.)at(dateof death) thetimeof deathinthestateof _F_lo_ri_da _ Ondateof death,thedecedentwas(checkone): Cd aU.S.citizen 0 not aU.S.citizen

3. Afederalestatetax return(federalForm706or 706-NA)isnotrequiredto be filedfor theestate.4. Theestatedoesnot oweFloridaestatetaxpursuant to Chapter198,5. Iacknowledgepersonalliabilityfordistributionin wholeorin partof anyof theestateby havingobtainedrelease

of suchpropertyfromthelienof theFloridaestatetax.Underpenaltiesof perjury, IdeclarethatIhavereadthisAffidavitandthefactsstatedinitaretrue.Thisdeclarationisbasedonallinformationof whichthepersonalrepresentativehasanyknowledge [55. 92.525(1)(b);213.37;837.06, ES.].

Executedthis .20 ..-1 -/-1--- _. l- day of :IV,, e:.NeilJ. GillespiePrintname _ Telephonenumber 3 -854-7807 _

8092SW115thLoop Ocala,Florida34481Mailingaddress _ City/StatelZlP _Florida MarionStateof _ Countyof _

Swornto(oraffirmed)andsubscribedbeforemeby NL J -:i, G ~ / { e 5 : p ; e On this ,20 f ~

t n,f) nSignatureof o t a r y _ ~ i:t-f-+- _ IJ'J.' CECILIAROSENBERGER: : ~ ~ Commission# EE191610 (Checkone) i : ExpiresJune6,2016.. BondedThru Troy Fain lnuance800-385-7018 ~ Personallyknown Q Orproducedidentification Typeof identificationproduced _

Print,type,or stampnameof NotaryPublic Filethisform with the appropriateclerk of the court. Donot mailto the FloridaDepartment of Revenue


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R.08/13DR-312Page 2Instructions for Completing Form DR-312

File this form with the appropriate clerk of the court. Do not mail to the Florida Department of Revenue.General Information Federal thresholds for filing federal Form 706 only:If Florida estate tax is not due and a federal estate tax (For informational purposes only. Please confirm withreturn (federal Form 706 or 706-NA) is not required to Form 706 instructions.)be filed, the personal representatives of such estatesshould complete Florida Form DR-312, AffidavitoNo Florida Estate ax Due Note that 'the definitionof personal representative in Chapter 198 F:.S.includes any person who is in actual or constructivepossession. Therefore, this affidavit may be used bypersons in possession of any property included inthe decedent's gross estate.Form DR-312 is admissible as evidence of nonliabilityfor Florida estate tax and will remove the Department'sestate tax lien. The Florida Department of Revenue willno longer issue Nontaxable Certificates for estates for

2000 and 2001 $675,0002002 and 2003 $1,000,0002004 and 2005 $1,500,000For 2006 and forwardgo to the IRS website atwww.irs.gov to obtainthresholds.

which the DR-312 has been duly filed and no federalForm 706 or 70S-NA is due. For thresholds for filing federal Form 706-NA(nonresident alien decedent), contact your local InternalThe 3-inch by 3-inch space in the upper right corner of Revenue Service office.the form is for the exclusive use of the clerk of the court.Do not write, mark, or stamp in that space. If an administration proceeding is pending for an estate,Form DR-312 may be filed in that proceeding. The caseWhere to File Form DR-312 style of the proceeding should be added in the largeForm DR-312 must be recorded direct ly with the clerk blank space in the upper left portion of the DR-312.of the circuit court in the county or counties where the Form DR-312 should be filed with the clerk of the courtdecedent owned property. Do not send this form to the and duly recorded in the public records of the county orFlorida Department of Revenue. counties where the decedent owned property.When to Use Form DR-312Form DR-312 should be used when an estate is notsubject to Florida estate tax under Chapter 198, ES.,and a federal estate tax return (federal Form 706 or 706NA is not required to be filed. NOTE: This form mayNOT be used for estates that are required to file federalform 706 or 706A. To Contact UsInformation, forms, and tutorials are available on our Internet site: www.myflorida.com/dorTo speak with a Department representative, call Taxpayer Services, Monday through Friday, 8 a.m. to 7 p.m., ET, at800-352-3671 .To find a taxpayer service center near you, go to: www.myflorida.com/dor/contact.htmlFor written replies to tax questions, write to:Taxpayer Services - Mail Stop 3-2000Florida Department of Revenue5050 W Tennessee StTallahassee FL 32399-0112Reference MaterialRule Chapter 12C-3, Florida Administrative Code and Chapter 198, Florida Statutes. Tax statutes and rules are availableonline at: www.myflorida.com/dorllaw


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......_... -.. ...-.. ---.-.DAVID R EUSPERMANN CLERK OF COURT MARION COUNTY

DATE: 02107 2013 03:02:21 PMFILE : 2013013720 OR BK 05807 PG 1396

REC 10.00NOTICE OF HOMESTEAD

To Whom It May Concern:You are notified that the undersigned NEIL J. GILLESPIE claims as homestead exemptfrom levy and execution under Section 4, Article X of the Florida State Constitution, thefollowing described property:

Lot(s) 1, Block G, OAK RUN WOODSIDE TRACT, according to the Platthereof as recorded in Plat Book 2 at Page(s) 106 through 112, inclusive of thePublic Records of Marion County, Florida.Property address: 8092 SW 115th Loop, Ocala, FL 3448

The undersigned certifies, under oath, that he or she has applied for and received the homesteadtax exemption as to the above-described property, that 7013-007-001 is the tax identificationparcel nunlber of this property, and that the undersigned has resided on this propertycontinuously and uninterruptedly from February 9, 2005 to the date of this Notice of Homestead.

STATE OF FLORlDACOUNTY OF MARIONThe foregoing instrument was acknowledged before me this 7th day of February, 2013 byNEIL J. GILLESPIE, who is personally known to me.

t bNotary Public.4'ft::.".. CECIUA ROSENBERGERWS J ConmissIon #EE 191610 ; ExpiresJLN 6. 2016. 8 D n 1 1 d 1 1 l V _ ~ - -

Book5807/Page1396 CFN#2013013720 Page 1 o 1


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PROBATE DIVISIONOFFICE OF DAVID R ELLSPERMANN-CLERK OF THE CIRCUIT COURT

RECEIPT : P 000080959RECEIVED OF: GILLESPIE NEIL JOSEPH

PART. ID: 1406736BY CLERK: BEWLEY CHRISTINE M

CHECKS:

DATE: 06-24-2014 TIME: 16:03:45MEMO: EST OF GILLESPIE PENELOPE

CASH$45.00

CREDIT$0.00

CHANGE$4.00

OTHER$0.00

CASE NUMBER EVENT COURT/JUDGE TAX NO. AMOUNT42-2014-CP-001060-AXXX-XX

EST OF GILLESPIE PENELOPE MPARTY: GILLESPIE PENELOPE MARIE

162 FF: NOTICE OF TRUSTSSR S SUE ROBBINSTOTAL RECEIPT...

$41.00

$41.00

DAVID R ELLSPERMANN, CLERKBy D.C.


22/58

Case Number :

File Date:

Judge:

Website Home| Case Search Page| Case Search Help|Case Type Tables

backto search page

CASE INFORMATION

42-2014-CP-001060-AXXX-XX06/24/2014S SUE ROBBINS

Decedent : GILLESPIE PENELOPE MARIE (DOB: 1930)AKA :GILLESPIE PENELOPE

Trustee : GILLESPIE NEIL JOSEPH (DOB: 1956)

DocketsDate Event Count Party Amount

06/24/2014CLERKS MEMO OFRELATED CASES

$0.00

00WF22452 - WILL FILE ONLY

06/24/2014 NOTICE OF TRUST $0.00

NOTICE OF TRUST WITH ATTACHMENTS

06/24/2014PETITION/COMPLAINTNO DOC#

$0.00

NOTICE OF TRUST WITH ATTACHMENTS

06/24/2014ASM: NOTICE OFTRUST

GILLESPIE PENELOPEMARIE

$41.00

Payments

Date Receipt # Event Party Amount

06/24/2014 P-80959 FF: NOTICE OF TRUSTGILLESPIE PENELOPEMARIE

$41.00

* bold records have been voided

www.MarionCountyClerk.org

s://casesearch.marioncountyclerk.org/index.cfm?FuseAction=Home.CaseView&Case_id=1672969&CFID=54328&CFTOKEN=cb4201e31


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Electronically Filed 07 08 2013 07:33:04 PM ET

IN THE CIRCUIT COURT OF THEFIFTH JUDICIAL CIRCUIT OFFLORIDA IN AND MARION COUNTYGENERAL JURISDICTION DIVISION

REVERSE MORTGAGE SOLUTIONS, INC., Case No.: 2013-CA-000115Plaintiff,

vMARK GILLESPIE et al.,

Defendants.

NOTICE OF DEFENDANTS' CONSENT TO ,JUDGMENTDefendants, MARK GILLESPIE and JOEITA GILLESPIE AKA UNKNOWN SPOUSE

OF MARK GILLESPIE and ELIZABETH BAUERLE NKA ELIZABETH BIDGOOD(hereinafter, the Defendants ), file this Notice of Defendant's Consent to Judgment:

1 The Defendants, MARK GILLESPIE and JOETTA GILLESPIE AKAUNKNOWN SPOUSE OF MARK GILLESPIE and ELIZABETH BAUERLE NKAELIZABETH BIDGOOD, have been named as Defendants in this action.

2 Plaintiff is seeking to recover the property located at 8092 SW 115th Loop,Ocala, FL 34481 based on an event of default under the terms of the Adjustable Rate Note(Home Equity Conversion) a/kIa reverse mortgage .

3 Because this is a reverse mortgage, the Defendants have no financial liabilityunder the terms of the subject loan. See paragraph 7(a) of the Note and 9(a) of the Mortgage.

4. Defendants do not wish to contest entry of final judgment against Defendants.5. The Defendants desire swift resolution to this action so they hereby give consent

to having Judgment entered in favor of the Plaintiff in this action.

KEL File #13LAW34876

5


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CERTIFICATE OF SERVICEI HEREBY CERTIFY that I have electronically filed via the Florida Courts eFiling

Portal and furnished a true and correct copy of the foregoing to Angela M. Brenwald, Esquire, ofMcCalla Raymer LLC, 225 E. Robinson S1. Orlando, FL 32801,[email protected]; via [x] Email Delivery, today July 5, 2013.

KAUFMAN, ENGLETT LYND, PLLC/s/ Anthony J. SolomonAnthony J. Solomon, Esq.Florida Bar No. 93057111 N. Magnolia Avenue, Suite 1600Orlando, FL 32801Telephone No.: (407) 513-1900Primary Email: [email protected] Email: [email protected] for Defendants: MARK GILLESPIE andJO TIA GILLESPIE AKA UNKNOWN SPOUSE OFMARK GILLESPIE

KEL File 13LAW34876


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Fort Worth, Texas 76123

111111111111111 nIIDAVID R ELLSPERMANN CLERK & COMPTROlLER MARION ODATE: 07/09/2014 04:27:26 PMThis Quit-Claim Deed, Executed this day of FILE : 20.14064751 OR BK 6 65 Pg 1251ry ~ \ , . I ; t between Mark Gillespie, REC FEES: $10.00 INDEX FEES: $0.00resigned Successor Co-Trustee of the Gillespie Famity DOS: 0.70 MDS: OINT: 0Living Trust Agreement dated February 10, 1997,Address: 7504 Summer Meadows Drive, Fort Worth, Texas 76123Party of the Fir st Part.To:Neil J Gillespie, Sole Trustee of the Gillespie FamilyLiving Trust Agreement dated February 10, 1997'Address: 8092 SW 115th Loop, Ocala, Florida 34481Party of the Second PartWitnessed, That the said first party, for no consideration, does hereby remise, release and quitclaim unto the said second party forever, all the right, title, interest, claim and demand which thesaid first party has in and to the following described lot, piece or parcel of land, situate, lying andbeing in the County of Marion State of Florida, to witLOT(S) 1, BLOCK G OAK RUN WOODSIDE TRACT ACCORDING TO THE PLATTHEREOF AS RECORDED IN PLAT BOOK 2 AT PAGE(S) 106 THROUGH 112,INCLUSIVE, OF THE PUBLIC RECORDS OF MARION COUNTY, FLORIDA.COUNTY OF MARIONSTATE OF FLORIDAA.P.N.7013007oo1To Have and to Hold the same together with all and singular the appurtenances thereuntobelonging or in anywise appertaining, and all the estate, right, title, interest, lien, equity andclaim whatsoever of the said first party, either in law or equity, to the only proper use, benefitand behoof of the said second party forever.In Witness Whereof, The said first party has s igned and sealed these presents the day and yearfirst above written. Signed, Sealed and Delivered in Presence of:Wi

Witness Signature Witness PrintMark GillespieSTATE OF TEXAS 7504 Summer Meadows

County of TarrantI HEREBY CERTIFY that on this day, before me, an officer duly authorized in the Stateaforesaid and in the County aforesaid to take acknowledgments, personally appearedMark Gillespie me known to be the person described in or who identified himlherselfby meansof W O ~ ; t : 1 and who executed the foregoing instrument and acknowledged before methat he executed the same.WITNESS my hand and official seal in the County and State last aforesaid this day ofJ Uk ' 2014 OIMJIWUC r.'tef''fIZr.l[ ~ ~ NotAry Nti/:J C I I ~ ~ f I e . -e _ ~ 9 ~ S //6 7t f J

OC Jt } L 3 1 t ~ 1

CFN#2014064751 Page 1 of 16


26/58

Supreme Court of Florida

_____________

No. SC11-1702

_____________

IN RE: OATH OF ADMISSION TO THE FLORIDA BAR

[September 12, 2011]

PER CURIAM.

Today we revise the Oath of Attorney administered to new members of The

Florida Bar to recognize [t]he necessity for civility in the inherently contentious

setting of the adversary process. In re Snyder, 472 U.S. 634, 647 (1985).1

In recent years, concerns have grown about acts of incivility among

members of the legal profession. Among others, the American Board of Trial

Advocates (ABOTA) has sought to increase awareness of the importance of

civility in the practice of law. The Code of Professionalism of ABOTA contains a

pledge to [b]e respectful in my conduct toward my adversaries. ABOTA Code

of Professionalism, http://www.abota.org/index.cfm?pg=professionalism. Since

1. See art. V, 15, Fla. Const.

7


27/58

- 2 -

2003, the Lawyers Oath sworn by admittees of the South Carolina Bar has

contained the following pledge: To opposing parties and their counsel, I pledge

fairness, integrity, and civility, not only in court, but also in all written and oral

communications. S.C. App. Ct. R. 402(k)(3). We have determined that a similar

pledge should be added to Floridas oath.

Recognizing the importance of respectful and civil conduct in the practice of

law, we therefore revise the Oath of Admission to The Florida Bar as set forth

below. New language is indicated by underscoring.

OATH OF ADMISSION

I do solemnly swear:

I will support the Constitution of the United States and the

Constitution of the State of Florida;

I will maintain the respect due to courts of justice and judicial

officers;

I will not counsel or maintain any suit or proceedings which

shall appear to me to be unjust, nor any defense except such as I

believe to be honestly debatable under the law of the land;

I will employ, for the purpose of maintaining the causes

confided in me such means only as are consistent with truth and

honor, and will never seek to mislead the judge or jury by any artifice

or false statement of fact or law;

I will maintain the confidence and preserve inviolate the secrets

of my clients, and will accept no compensation in connection with

their business except from them or with their knowledge and

approval;


28/58

- 3 -

To opposing parties and their counsel, I pledge fairness,

integrity, and civility, not only in court, but also in all written and oral

communications;

I will abstain from all offensive personality and advance no fact

prejudicial to the honor or reputation of a party or witness, unless

required by the justice of the cause with which I am charged;

I will never reject, from any consideration personal to myself,

the cause of the defenseless or oppressed, or delay anyones cause for

lucre or malice. So help me God.

This oath shall be effective immediately, and no rehearing will be permitted in this

case.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,

and PERRY, JJ., concur.


29/58


30/58

INFORMATIONAL PACKET

CANDOR TOWARD

THE TRIBUNAL

COURTESY OF

THE FLORIDA BAR ETHICS DEPARTMENT

9 sepa


31/58

2

RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL

(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to

avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction

known to the lawyer to be directly adverse to the position of the client and not disclosed

by opposing counsel; or

(4) permit any witness, including a criminal defendant, to offer testimony or other

evidence that the lawyer knows to be false. A lawyer may not offer testimony that the

lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a

lawyer has offered material evidence and thereafter comes to know of its falsity, the

lawyer shall take reasonable remedial measures.

(b) Extent of Lawyer's Duties. The duties stated in subdivision (a) continue beyond the

conclusion of the proceeding and apply even if compliance requires disclosure of information

otherwise protected by rule 4-1.6.

(c) Evidence Believed to Be False. A lawyer may refuse to offer evidence that the

lawyer reasonably believes is false.

(d) Ex Parte Proceedings. In an ex parte proceeding a lawyer shall inform the tribunal

of all material facts known to the lawyer that will enable the tribunal to make an informed

decision, whether or not the facts are adverse.

Comment

The advocate's task is to present the client's case with persuasive force. Performance of

that duty while maintaining confidences of the client is qualified by the advocate's duty of candor

to the tribunal. However, an advocate does not vouch for the evidence submitted in a cause; the

tribunal is responsible for assessing its probative value.

Representations by a lawyer

An advocate is responsible for pleadings and other documents prepared for litigation, but

is usually not required to have personal knowledge of matters asserted therein, for litigation

documents ordinarily present assertions by the client, or by someone on the client's behalf, and

not assertions by the lawyer. Compare rule 4-3.1. However, an assertion purporting to be on the


32/58

3

lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may

properly be made only when the lawyer knows the assertion is true or believes it to be true on the

basis of a reasonably diligent inquiry. There are circumstances where failure to make a

disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in rule

4-1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies inlitigation. Regarding compliance with rule 4-1.2(d), see the comment to that rule. See also the

comment to rule 4-8.4(b).

Misleading legal argument

Legal argument based on a knowingly false representation of law constitutes dishonesty

toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but

must recognize the existence of pertinent legal authorities. Furthermore, as stated in subdivision

(a)(3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction

that has not been disclosed by the opposing party. The underlying concept is that legal argument

is a discussion seeking to determine the legal premises properly applicable to the case.

False evidence

When evidence that a lawyer knows to be false is provided by a person who is not the

client, the lawyer must refuse to offer it regardless of the client's wishes.

When false evidence is offered by the client, however, a conflict may arise between the

lawyer's duty to keep the client's revelations confidential and the duty of candor to the court.

Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client

that the evidence should not be offered or, if it has been offered, that its false character should

immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonableremedial measures.

Except in the defense of a criminally accused, the rule generally recognized is that, if

necessary to rectify the situation, an advocate must disclose the existence of the client's deception

to the court. Such a disclosure can result in grave consequences to the client, including not only

a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the

alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-

finding process that the adversary system is designed to implement. See rule 4-1.2(d).

Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the

existence of false evidence, the client can simply reject the lawyer's advice to reveal the false

evidence and insist that the lawyer keep silent. Thus, the client could in effect coerce the lawyer

into being a party to fraud on the court.

Perjury by a criminal defendant


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4

Whether an advocate for a criminally accused has the same duty of disclosure has been

intensely debated. While it is agreed that the lawyer should seek to persuade the client to refrain

from perjurious testimony, there has been dispute concerning the lawyer's duty when that

persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can

withdraw. Withdrawal before trial may not be possible if trial is imminent, if the confrontationwith the client does not take place until the trial itself, or if no other counsel is available.

The most difficult situation, therefore, arises in a criminal case where the accused insists

on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to

rectify the situation can increase the likelihood of the client's being convicted as well as opening

the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise

control over the proof, the lawyer participates, although in a merely passive way, in deception of

the court.

Although the offering of perjured testimony or false evidence is considered a fraud on the

tribunal, these situations are distinguishable from that of a client who, upon being arrested,provides false identification to a law enforcement officer. The client's past act of lying to a law

enforcement officer does not constitute a fraud on the tribunal, and thus does not trigger the

disclosure obligation under this rule, because a false statement to an arresting officer is unsworn

and occurs prior to the institution of a court proceeding. If the client testifies, the lawyer must

attempt to have the client respond to any questions truthfully or by asserting an applicable

privilege. Any false statements by the client in the course of the court proceeding will trigger the

duties under this rule.

Remedial measures

If perjured testimony or false evidence has been offered, the advocate's proper courseordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek

to withdraw if that will remedy the situation. Subject to the caveat expressed in the next section

of this comment, if withdrawal will not remedy the situation or is impossible and the advocate

determines that disclosure is the only measure that will avert a fraud on the court, the advocate

should make disclosure to the court. It is for the court then to determine what should be done--

making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing. If

the false testimony was that of the client, the client may controvert the lawyer's version of their

communication when the lawyer discloses the situation to the court. If there is an issue whether

the client has committed perjury, the lawyer cannot represent the client in resolution of the issue

and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce

a series of mistrials and thus escape prosecution. However, a second such encounter could be

construed as a deliberate abuse of the right to counsel and as such a waiver of the right to further

representation.

Constitutional requirements


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5

The general rule--that an advocate must disclose the existence of perjury with respect to a

material fact, even that of a client--applies to defense counsel in criminal cases, as well as in

other instances. However, the definition of the lawyer's ethical duty in such a situation may be

qualified by constitutional provisions for due process and the right to counsel in criminal cases.

Refusing to offer proof believed to be false

Generally speaking, a lawyer has authority to refuse to offer testimony or other proof that

the lawyer believes is untrustworthy. Offering such proof may reflect adversely on the lawyer's

ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an

advocate. In criminal cases, however, a lawyer may, in some jurisdictions, be denied this

authority by constitutional requirements governing the right to counsel.

A lawyer may not assist the client or any witness in offering false testimony or other false

evidence, nor may the lawyer permit the client or any other witness to testify falsely in the

narrative form unless ordered to do so by the tribunal. If a lawyer knows that the client intends tocommit perjury, the lawyer's first duty is to attempt to persuade the client to testify truthfully. If

the client still insists on committing perjury, the lawyer must threaten to disclose the client's

intent to commit perjury to the judge. If the threat of disclosure does not successfully persuade

the client to testify truthfully, the lawyer must disclose the fact that the client intends to lie to the

tribunal and, per 4-1.6, information sufficient to prevent the commission of the crime of perjury.

The lawyer's duty not to assist witnesses, including the lawyer's own client, in offering

false evidence stems from the Rules of Professional Conduct, Florida statutes, and caselaw.

Rule 4-1.2(d) prohibits the lawyer from assisting a client in conduct that the lawyer

knows or reasonably should know is criminal or fraudulent.

Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or assisting a witness to testify

falsely.

Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct or

knowingly assisting another to do so.

Rule 4-8.4(b) prohibits a lawyer from committing a criminal act that reflects adversely on

the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation.

Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the

administration of justice.


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6

Rule 4-1.6(b) requires a lawyer to reveal information to the extent the lawyer reasonably

believes necessary to prevent a client from committing a crime.

This rule, 4-3.3(a)(2), requires a lawyer to reveal a material fact to the tribunal when

disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, and 4-3.3(a)(4) prohibits a lawyer from offering false evidence and requires the lawyer to take

reasonable remedial measures when false material evidence has been offered.

Rule 4-1.16 prohibits a lawyer from representing a client if the representation will result

in a violation of the Rules of Professional Conduct or law and permits the lawyer to withdraw

from representation if the client persists in a course of action that the lawyer reasonably believes

is criminal or fraudulent or repugnant or imprudent. Rule 4-1.16(c) recognizes that

notwithstanding good cause for terminating representation of a client, a lawyer is obliged to

continue representation if so ordered by a tribunal.

To permit or assist a client or other witness to testify falsely is prohibited by section837.02, Florida Statutes (1991), which makes perjury in an official proceeding a felony, and by

section 777.011, Florida Statutes (1991), which proscribes aiding, abetting, or counseling

commission of a felony.

Florida caselaw prohibits lawyers from presenting false testimony or evidence. Kneale v.

Williams, 30 So. 2d 284 (Fla. 1947), states that perpetration of a fraud is outside the scope of the

professional duty of an attorney and no privilege attaches to communication between an attorney

and a client with respect to transactions constituting the making of a false claim or the

perpetration of a fraud. Dodd v. The Florida Bar, 118 So. 2d 17 (Fla. 1960), reminds us that "the

courts are . . . dependent on members of the bar to . . . present the true facts of each cause . . . to

enable the judge or the jury to [decide the facts] to which the law may be applied. When anattorney . . . allows false testimony . . . [the attorney] . . . makes it impossible for the scales [of

justice] to balance." See The Fla. Bar v. Agar, 394 So. 2d 405 (Fla. 1981), and The Fla. Bar v.

Simons, 391 So. 2d 684 (Fla. 1980).

The United States Supreme Court inNix v. Whiteside, 475 U.S. 157 (1986), answered in

the negative the constitutional issue of whether it is ineffective assistance of counsel for an

attorney to threaten disclosure of a client's (a criminal defendant's) intention to testify falsely.

Ex parte proceedings

Ordinarily, an advocate has the limited responsibility of presenting 1 side of the matters that a

tribunal should consider in reaching a decision; the conflicting position is expected to be presented

by the opposing party. However, in an ex parte proceeding, such as an application for a temporary

injunction, there is no balance of presentation by opposing advocates. The object of an ex parte

proceeding is nevertheless to yield a substantially just result. The judge has an affirmative

responsibility to accord the absent party just consideration. The lawyer for the represented party has


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the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer

reasonably believes are necessary to an informed decision.


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8

PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 04-1

June 24, 2005

A lawyer whose client has repeatedly stated that the client will commit perjury mustwithdraw from the representation and inform the court of the clients intent to lie under oath.

When the withdrawal and disclosure occur depends on the circumstances and may be made ex

parte in camera if permitted by the court.

Note: This opinion was approved by The Florida Bar Board of Governors on October 21, 2005.

RPC: 4-1.2(d), 4-1.6, 4-1.7, 4-1.16, 4-3.3

Statutes: 837.02 and 777.011, Florida Statutes

A member of The Florida Bar has inquired about the appropriate course of conduct in the

representation of a client who has stated his intent to commit perjury at his upcoming criminaltrial. The client has repeatedly expressed the clients intent to commit perjury and, despite the

lawyers repeated warnings, insists upon testifying falsely. The client has been warned that the

lawyer must and will advise the court if a fraud is made upon the court. The lawyer has

questioned the lawyers ethical obligations under this scenario. This inquiry addresses the

circumstances when a lawyer definitely knows that the client intends to commit perjury. This is

distinct from the many other situations where the lawyer may suspect but does not know that the

client intends to commit perjury. This opinion only addresses this specific inquiry.

Many ethics rules relate to this inquiry. Rule 4-1.2(d), Rules Regulating The Florida Bar,

prohibits a lawyer from assisting a client in conduct the lawyer knows or reasonably should know

is criminal or fraudulent. Rule 4-1.6, the confidentiality rule, which is very broad, applies "to all

information relating to the representation, whatever its source." Comment, Rule 4-1.6.

However, there are exceptions to the confidentiality rule. Rule 4-1.6(b)(1) requires a lawyer to

reveal information necessary to prevent a client from committing a crime. While interpretation

of statutes is beyond the scope of an ethics opinion, it appears that it is a crime for a lawyer to

permit or assist a client or other witness to testify falsely. See Florida Statutes 837.02 and

777.011.

The "Candor Towards the Tribunal" rule, Rule 4-3.3, provides in pertinent part:

(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is

necessary to avoid assisting a criminal or fraudulent act by the client;


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* * *

(4) permit any witness, including a criminal defendant, to offer

testimony or other evidence that the lawyer knows to be false. A lawyer may not

offer testimony that the lawyer knows to be false in the form of a narrative unlessso ordered by the tribunal. If a lawyer has offered material evidence and thereafter

comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) Extent of Lawyer's Duties. The duties stated in paragraph (a)

continue beyond the conclusion of the proceeding and apply even if compliance

requires disclosure of information otherwise protected by rule 4-1.6 [concerning

lawyer-client confidentiality]. [Emphasis added.]

A lawyers obligation tomake disclosures under Rule 4-3.3 is triggered when the lawyer

knows that a client or a witness for the client will make material false statements to a tribunal.Under the facts presented, the lawyer knows the client will make a misrepresentation to the court

because the client has repeatedly expressed his intent to commit perjury.

The comment to Rule 4-3.3 provides the following guidance:

If a lawyer knows that the client intends to commit perjury, the lawyers first duty

is to attempt to persuade the client to testify truthfully. If the client still insists on

committing perjury, the lawyer must threaten to disclose the clients intent to

commit perjury to the judge. If the threat of disclosure does not successfully

persuade the client to testify truthfully, the lawyer must disclose the fact that theclient intends to lie to the tribunal and, per 4-1.6, information sufficient to prevent

the commission of the crime of perjury.

A lawyer is required to reveal information that is necessary to prevent a client from

committing a crime, including the crime of perjury. Rule 4-1.6(b)(1), Rules Regulating The

Florida Bar. The comment to Rule 4-1.6 provides:

It is admittedly difficult for a lawyer to know when the criminal intent will

actually be carried out, for the client may have a change of mind.

* * *

Where practical the lawyer should seek to persuade the client to take suitable

action. In any case, a disclosure adverse to the clients interest should be no

greater than the lawyer reasonably believes necessary to the purpose.


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If the lawyer knows that the client will testify falsely, withdrawal does not fulfill the

lawyers ethical obligations, because withdrawal alone does not prevent the client from

committing perjury. Rather, a lawyer must disclose to the court a clients intention to commit

perjury. Timing of the disclosure may vary based on the facts of the case and, in some cases,

may be made ex parte in camera. Ultimately, the method of disclosure is subject to the discretionof the court. This disclosure causes a conflict of interest between the lawyers ethical obligation

to disclose and the clients interest. Rule 4-1.7, Rules Regulating The Florida Bar. Due to the

conflict, the lawyer must move to withdraw. Rule 4-1.16(a), Rules Regulating The Florida Bar.

Notwithstanding good cause to withdraw, if the court requires the lawyer to continue the

representation, the lawyer must comply with the courts order. Rule 4-1.16(c), Rules Regulating

The Florida Bar. A lawyer may offer the clients testimony in the narrative only if the court

orders the lawyer to do so. Rule 4-3.3(a)(4), Rules Regulating The Florida Bar.

In the event that the client does not give advance notice to the lawyer prior to testifying

falsely, Rule 4-3.3(a)(2) and the comment require the lawyer to take reasonable remedial

measures to rectify the fraud. The comment to Rule 4-3.3 states:

When false evidence is offered by the client, however, a conflict may arise

between the lawyer's duty to keep the client's revelations confidential and the duty

of candor to the court. Upon ascertaining that material evidence is false, the

lawyer should seek to persuade the client that the evidence should not be offered

or, if it has been offered, that its false character should immediately be disclosed.

If the persuasion is ineffective, the lawyer must take reasonable remedial

measures.

* * *

If perjured testimony or false evidence has been offered, the advocate's propercourse ordinarily is to remonstrate with the client confidentially. If that fails, the

advocate should seek to withdraw if that will remedy the situation....[I]f

withdrawal will not remedy the situation or is impossible and the advocate

determines that disclosure is the only measure that will avert a fraud on the court,

the advocate should make disclosure to the court. It is for the court then to

determine what should be done-making a statement about the matter to the trier of

fact, ordering a mistrial, or perhaps nothing.

In conclusion, when a lawyer is representing a criminal client who has stated an intention

to commit perjury, the lawyer is obligated, pursuant to Rules 4-1.2(d), 4-1.6(b)(1) and 4-

3.3(a)(4), to disclose the clients intent to the court. If the lawyer is not given advance notice ofthe clients intent to lie, and the client offers false testimony, then the lawyer must convince the

client to agree to disclosure and remediation of the false testimony; failing that, the lawyer must

disclose to the court anyway. Absent client consent, the lawyers disclosure of the clients false

testimony or intent to offer false testimony will create a conflict between the lawyer and the

client requiring the lawyer to move to withdraw from representation pursuant to Rule 4-1.16(a).

If the court requires the lawyer to remain in the case, despite good cause for withdrawal, the


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lawyer must do so. Rule 4-1.16(c). It is then up to the court to determine what should be done

with the information. This opinion is limited to the situation presented when a lawyer knows that

his or her client is going to commit perjury. This opinion does not address the situation when a

lawyer merely suspects but does not know that the client intends to commit perjury.


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(2) fail to disclose a material fact to a tribunal when disclosure is

necessary to avoid assisting a criminal or fraudulent act by the

client[.]

Additionally, Rule 4-1.2(d) prohibits a lawyer from assisting a client in criminal or fraudulentconduct, while Rule 4-8.4(c) prohibits a lawyer from "dishonesty, fraud, deceit, or

misrepresentation."

The mere act of filing pleadings under the false name used by the client or responding to

the alias when called at a docket sounding does not involve misrepresentation to the court.

However, the lawyer cannot permit the client to lie and therefore, if asked, the client must give

his or her true name or invoke a privilege in refusing to respond.

The Board will address the following scenarios: 1) the lawyer learns in the initial

consultation before the lawyer accepts representation that a criminal defendant is being charged

and proceeding under a false name; and 2) the lawyer learns after representation begins that acriminal defendant client is being charged and proceeding under a false name.

If the lawyer learns that the client has given a false name at the outset of the

representation, before the lawyer has accepted representation of the criminal defendant in the

case, the lawyer must decline to represent the client on the basis of the false name unless the

prospective client agrees to disclose to the court that the client is proceeding under a false name.

See Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3 (a)(2) and (b), 4-3.4(c), 4-4.1, and 4-8.4, Rules of

Professional Conduct.

If the lawyer learns of the false name after representation has begun, the lawyer should

inform the client that the lawyer cannot assist the client in misleading the court regarding theclient's identity, and the lawyer should attempt to persuade the client to disclose that the client is

proceeding under a false name. Rules 4-1.2(d), 4-1.4, 4-1.6(b)(1), 4-3.3(a)(2) and (b), 4-3.4(c),

and 4-8.4, Rules of Professional Conduct. If the client refuses to disclose the information and

insists that the client will maintain the false name throughout the case, the lawyer must move to

withdraw from the client's representation. Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3(a)(2) and (b), 4-

3.4(c), and 4-8.4, Rules of Professional Conduct. The lawyer must counsel the client not to

commit perjury. Rules 4-1.2(d), 4-1.14, 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of

Professional Conduct.

If the court declines to permit withdrawal, the lawyer must continue the representation.

Rule 4-1.16(c), Rules of Professional Conduct. The lawyer may not inform the court of the false

name except when the client affirmatively lies to the court concerning his or her true name.

All of the above scenarios presuppose that there is nothing in the court file to indicate that

the client has been charged and is proceeding under a false name. If the client has been charged

as a "John Doe" or "Jane Doe" and clearly is openly refusing to disclose his or her identity, there


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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 90-1

(July 15, 1990)

A criminal defense counsel who learns that his or her client has left the state for thepurpose of avoiding a court appearance may not, under most circumstances, divulge such

information until required by the court at the time of the scheduled appearance.

Statute: F.S. 843.15

When an attorney tells the court his or her client has left the state with the intent to jump

bail, it puts attorney and client at cross-purposes; it makes the attorney a potential witness against

the client in a potential criminal prosecution for the separate crime of bail jumping; and it

effectively destroys the attorney-client relationship.

Avoiding interference with, or at least preserving, the Constitutionally created andConstitutionally protected attorney-client relationship is fundamental to a correct interpretation of

what is, in this situation, ethical conduct.

For an attorney, based on anything less than verified and certain facts, to tell the court a

client is out of state for purpose of avoiding a court appearance, would violate the attorney's

obligation to give that client zealous representation, would destroy the attorney-client

relationship, and would be unethical.

The crime of jumping bail is defined by Florida Statutes, Section 843.15, which says the

crime occurs when a defendant in a criminal case is on release pre-trial, or pending sentencing, or

pending appeal, and the defendant willfully fails to appear before any court or judicial officer asrequired. . . . The crime occurs when the defendant is required to be before the court and,

willfully, fails to be there. By statutory definition, the offense occurs when the defendant fails to

appear in court as requirednot before then. So a distinction must be made as to counsel's

ethical obligations at the time of the required court appearance, and counsel's ethical obligations

prior to the required court appearance.

At the time of the required court appearance, when the case is called and the defendant

fails to appear, and the judge turns to counsel and asks about the defendant's whereabouts,

defense counsel owes an explanation to the court, to the extent counsel has one, and to the extent

that giving it does not violate attorney-client privilege. If the attorney is able to tell the court

where the client is, and why the client is there rather than in court, then the attorney is obliged to

tell the court those thingsbut only to the extent that the lawyer can give up that information

without violating attorney-client confidentiality. Barring other facts not present here, an

attorney's actual knowledge of where a client is located, at the present moment, is not privileged

information.


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The following appears to be the proper way to handle it. Counsel may give the court such

answers as counsel has, to the extent is does not violate confidential communications between

attorney and client, and if that information is all the attorney has, then it is an easy matter to tell

the court counsel has no further information, privileged or otherwise. But if some of the

information counsel has is privileged, counsel may tell the court what information counsel hasthat is not privileged, and then advise the court that counsel does have additional information but

believes it privileged and so invokes that privilege on the client's behalfleaving it up to the

court to make such further inquiry and such rulings on the extent of the privilege as it deems

necessary.

Turning now to the question of counsel's ethical obligations prior to that required court

appearance: What is criminal defense counsel's obligation when counsel first learns, in advance

of the next scheduled court appearance, that the client has fled the state already, with intent to

avoid future court appearances in the case?

On some subjectsand this is oneethics opinions are of little real guidance topracticing attorneys unless they take into account the realities of how clients deal with lawyers

and lawyers with clients. Drawing on the experiences of lawyers on the Professional Ethics

Committee who now handle and/or have handled criminal defense cases, the following practical

observation is made. Criminal defendants when talking with their lawyers (in the attorney's office

or by telephone, and especially when clients call from out of state or out of the country) often

think out loud about skipping out, or come right out and say they plan not to show up for court

again; and yet, in a great majority of these cases, when the time comes, they do show up for

court, in spite of what they have said. One may assume they show up based at least in part on the

urgings of their lawyers in response to what they said. But, regardless the reasons why they

usually show up for court, it is a result that would not be obtained if lawyers, upon hearing clients

say they are going to skip future court appearance, were required to immediately tell the courtwhat their clients have just said in that regard. Such conduct by counsel would quickly destroy

the attorney-client relationship, and it would be doing so in situations that, in reality, most often

do not turn out to be a problemwhich would serve the interest of neither the clients nor the

administration of justice.

Adding to the balance the Constitutionally created and protected attorney-client

relationship, and the practicalities of how attorneys and clients deal with each other, and the

Rules Regulating the Florida Bar, the following appears to be the proper response to this part of

the inquiry.

So long as there remains any possibility that counsel may be able to effect a court

appearance by a client, in spite of the client's claims and anybody else's claims that the client will

not be going to court when required, experience teaches and ethics requires that effectuating the

client's appearance is what counsel must spend his or her energies trying to accomplish. Working

towards resolving the anticipated problem by effectuating the client's appearance, rather than

telling the court about the anticipated problem, is what is ethically required of the lawyer.


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Prior to the date of the required court appearance, only when it reaches the point where

counsel knows with reasonable certainty that the client's avoidance of the court's authority is a

willful and, for all practical purposes, an irreversible factonly then would counsel be ethically

obliged to step forward and a

defendants' rule 1.150 motion to strike sham pleadings-july 25, 2014

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