FILING A MOTION FOR SANCTIONS AGAINST OPPOSING COUNSEL AND THEIR CLIENT CREATES A POTENTIAL CONFLICT OF INTEREST
by: Elizabeth Wolt, Esq.
The prudent law firm and their client allegedly have conducted themselves in a manner subjecting both to a Section 57.105 Motion For Sanctions. The allegations against the joint conduct of the opposing counsel and his or her client in a filed Motion creates a potential conflict of interest between the opposing counsel and his or her client that must be recognized. Simply because the law firm and their client are on the same side, many lawyers fail to recognize that such Motion for Sanctions give rise to this potential conflict of interest. Attorneys should remain mindful of the steps they should take if an opposing party threatens or files a Motion for Sanctions against a client and/or their firm.
Because a sanctions motion involves the law firm’s previous work on behalf of the client, such as the filing of an action of questionable merit or preparation of responses to requests for electronic discovery, the law firm’s interests and the client’s interests may not be aligned. The firm may need to obtain consent to a potential conflict of interest, if obtainable, to continue representing the client in response to the Motion for Sanctions. It is important for lawyers to recognize that handling Motions for Sanctions requires an objective review of the conflict before proceeding.
A Section 57.105 Motion For Sanctions may create a material limitation conflict of interest if there is a substantial likelihood, based on the lawyer’s prior work for the client, that the lawyer’s ability to competently and diligently represent the client, going forward, is limited in a significant way. The lawyer’s advice and representation leading up to the Motion for Sanctions may be called into question along with the client’s conduct. The lawyer and the client may have differing interests, which can be monetary where attorney fees are requested. Failure to recognize this potential conflict and protect the client against it can give rise to additional sanctions against the attorney brought by a sitting Judge or the client him or herself.
Consistent with the rules of professional conduct, the lawyer should advise the client of the risks and reasonable alternative of continuing the representation not withstanding a potential or actual conflict caused by the alleged conduct of the lawyer and/or the client leading to the filing of the Motion for Sanctions. The attorney should also convey and review the 21 day statutory letter immediately, or as soon thereafter is possible, with the client upon receipt. Section 57.105 Fla. Stat. requires the attorney seeking sanctions to first send a letter with the attached Motion for Sanctions attached and allow 21 days for the allegedly frivolous pleading to be withdrawn prior to filing the Motion for Sanctions under Section 57.105 Fla. Stat. This discussion must include the potential monetary award of attorney fees that a client may be required to fund in part or in full and discuss the potential conflict of interest that arises with the filing. The attorney should get all disclosures in writing and if a conflict does exist the attorney should hire separate counsel for themselves and the firm and a separate attorney for the client’s interest if the potential conflict is not waived in writing (a signed acknowledgement from the client is recommended), or cannot be waived based upon the facts of the case. A call to the advisory ethics board is recommended as an attorney who has sanctions imposed as a result of the motion should not encourage additional sanctions for their failure to protect their client in this matter.