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3d DCA Watch -- Cuddle Your Kozel Factors (Plus Cursing in Romanian)!

The bunker seems to have a focus on lawyers behaving (allegedly) badly this week, let's take a peek:

Merl v. Weiner:

In this case a suspended/disbarred lawyer acting pro se sued the lawyers handling his grievance proceeding, and the trial judge dismissed his action with prejudice after failing to file an amended complaint within the time specified.

The trial judge originally dismissed the action on non-evidentiary motion calendar without specifying any grounds, but on rehearing amended the order of dismissal to include the Kozel factors.

Turning to the Kozel analysis in the order before us, we are concerned that no evidence was taken and there seems to have been no assessment of specific, less drastic, sanctions such as a fine or contempt order. Kozel, 629 So. 2d at 818. The record does not reflect, and oral argument did not elicit, any material prejudice to the defendant/appellees as a result of Mr. Merl’s untimeliness. Similarly, Mr. Merl’s prior disbarment was not shown to have resulted from ignoring orders to amend or court deadlines. The complaint itself indicates that Mr. Merl was in a drug and rehabilitation program at the time his Florida Bar grievance proceedings were pending.

If I had a penny for every time the Kozel analysis was either not applied, or applied improperly, I'd have enough to fool around on a blog that earns no money at all!

Michaels v. Loftus:

This is just a run of the mill case where a lawyer got in trouble for vulgar hand gesturing and cursing in Romanian:
Although counsel for neither party distinguished himself by his conduct in this otherwise quite ordinary probation violation hearing, the law by which we are bound affords us the right and obligation to focus on the two offenses for which Alexander J. Michaels was found in direct criminal contempt by the trial court and sentenced to two days in the county jail. One offense was a hand gesture directed toward opposing counsel. The other was the mumbling, in Romanian, of profanities at opposing counsel. We grant Mr. Michael’s petition for a writ of habeas corpus from the conviction for use of the hand gesture, but deny his petition for habeas relief for the mumbling of profanities during the course of the proceeding. Finally, we vacate the sentence in this case and remand for resentencing based upon the single conviction.
Here's what I think of this opinion!

(I'd definitely read the entire order, including Judge Logoa's dissent).

Bagate-as in mormant!



  2. Von Zamft has been a loose cannon for a long time now.

  3. I feel like I need a shower after reading the Michaels opinion.

  4. Shepherd's opinion is contemptuous because, while he expresses his personal moral outrage at profanity used by criminal lawyers toward each other during the heat of battle (GASP! THERE'S GAMBLING AT RICK'S!? Frankly, that's better than the incivility that takes place every day in our civil bar) the court cares naught for civil practitioners who routinely make false statements to a tribunal, file knowingly false complaints and engage in fraud on the court in a myraid of ways through discovery and slight of hand, with impunity. Shepherd and our civil trial judges need to WAKE UP and focus on the misconduct in the practice that actually denegrates the system and erodes the rule of law, and do something about it instead of sit idly by with their thumbs up their butts and thus foster true misconduct by unethical lawyers. Lastly, Shepherd has just made the criminal lawyer a martyr, in the criminal bar.

  5. Frank Shepherd is plenty tough on civil lawyers as well. He often goes out of his way to embarrass lawyers.

  6. Dumbass - that's a bully , not a judge . You think scumbag lawyers care if a judge berates them ? No. Refer THEM to the bar . Not a guy who cusses. What a joke. Including that shepherd thinks he did something important and honorable .


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