Tuesday, December 18, 2018


One lawyer's folly is another lawyer's ….?

Miami is an ethnic town. Nothing brings a smile to our face than to hear a lawyer of Hispanic descent   say "mazel-tov" to a Jewish  lawyer who has experienced a joyous event in their life. Or the reverse- a gringo lawyer using a Spanish expression to a Hispanic colleague. It is our differences which make us stronger. 

Which brings us to the definition of Chutzpah, a Yiddish word. There are many definitions, but here's a good one:

Chutzpah is....
Filing multiple motions to disqualify the 3rd DCA when they deny each one. Albert Einstein famously said that the definition of insanity is doing the same thing over and over and expecting a different result.  Einstein was never specifically asked this, but we think it's pretty crazy to keep asking the 3rd DCA to recuse themselves because they are prejudiced and biased against homeowners. 
Chutzpah is telling the 3rd DCA that they are, as a body dishonest and not impartial. 
Chutzpah is telling the 3rd DCA that they "falsified facts" in the record and ignored the proper standard of review. 
And finally, Chutzpah is filling for cert to the US SUPREME COURT the denial of the Florida Supreme Court to review the decisions of the 3rd DCA, and in that filing saying...

1. The opinion of the 3rd DCA  mispresented facts, ignored Florida Supreme Court law, and disregarded evidence showing fraud. The Florida Supreme Court declined jurisdiction to address this factually and intellectually dishonest result.


2.  The Third District Misrepresented the Amended Rule 1.540(b) Motion to reach a pre-determined result – foreclosure.” 


 3. “… the Dishonesty of the Third DCA’s opinion.” 


 4. “The Florida Supreme Court has repeatedly declined to protect the constitutional rights of foreclosure defendants.

You get the idea..and in reading the RSC it is pretty clear the 3rd DCA took a fairly dim view of having their opinions trashed to the feds. 

There is an old adage of not picking a fight with an institution who buys ink by the barrel. For our millennial readers, there used to be things called newspapers that were printed on something called paper and the words on the paper were printed using ink and the adage means not fighting with a newspaper because they can swamp you with negative articles. 
There is corollary which applies to  not picking a fight with an appellate court that has the final say on all of your cases. To do so is ….(all together now) Chutzpah!

Judge: "Counsel if what you say is true, I will have to throw out all my legal books."
Lawyer: "Judge, why don't you try reading them first."
These are the types of things we all want to say, but shouldn't. 

There isn't a blog in the land who is harder on those who wear black every day to work. And it's not that we are fighting for the dignity of the court- but the dignity of a court is worth fighting for. A  court as an institution is worthy of respect because the institution of the court is a powerful check on the executive branch and the institution of the court stands for the proposition of equal justice before the law for everyone who appears in court. 

 And when that does not happen you do not win by trashing the court (although we love the PD who filed a writ of mandamus with the Florida Supreme Court against the 3rd for not ruling in his case...and won!). You win by outthinking your opponent-which as a general proposition when dealing with "they who shall not be named" is not as hard as it might first appear. 

Dom Draper, that great American hero, famously said if you don't like the answer, change the question. 

There's more than one way to skin a cat and there's more than one way to win a case. And the surest way to lose a case is by trashing the court. Because in doing so, you demean yourself and make yourself no better than POTUS 45 and who wants to be mentioned with him in the same breath?  

So our advice is stop fighting with the denizens of the campus next to FIU. Figure out a better way... and while you're at it, hire a great defense attorney because in reading the below Rule, mi amigo, you are going to need it! 

(*The title of the post comes from a concluding quote in the Rule. Whomever authored that has some game.) 




Rumpole, you may recall that I first introduced the antics of attorney Bruce Jacobs to our readers when I posted this story on October 5, 2018, entitled “NOW THIS IS AN "ORDER TO SHOW CAUSE" WORTH READING”:


Mr. Jacobs subsequently hired attorneys Roy Wasson and Ben Kuehne to help him navigate the minefield of how to respond to the 3rd DCA's Order to Show Cause.

On December 5, 2018, the 3rd DCA issued their ruling entitled: “ORDER IMPOSING SANCTIONS”:


Upon consideration, this court imposes the following sanctions upon Bruce
Jacobs, Esquire, and Jacobs Legal, PLLC for violations of Rule 4-8.2(a) and Rule

1. We formally refer this matter to the Florida Bar for appropriate disciplinary
proceedings against Bruce Jacobs, Esquire.

2. We award appellees a reasonable attorney’s fee for this appeal, in an
amount not to exceed $5000. We remand this cause to the trial court to fix the
amount. Bruce Jacobs, Esq. and Jacobs Legal, PLLC, shall be jointly and severally
responsible for payment of that reasonable attorney’s fee.

For Jacobs, this is nothing new.


Anonymous said...

It is not "doing the same THING over and over again and expect a different result." We do THINGS all the time and it is reasonable to expect a different result. It's called practice (Allen Iverson voice) and attempting.

Insanity is doing the same MISTAKE and expecting a different result. Big difference hombre (Trump voice).

RSA ESQ from Coral Gables.

This comment has been removed by the author.
Anonymous said...

Instead of mocking Jacobs (aka "piling on") we should consider the possibility that he's experiencing some personal difficulties.

Anonymous said...

Courts, Clerks, judges, and justices in this state are pro-foreclosure, no matter how good the defense. There are only two ways around this fact. 1. Don't borrow money against your home or other real estate in Florida. 2. Find out who to bribe; this is not a real option for most folks, just my frustration defending a foreclosure for six years on a HECM reverse mortgage. I am a borrower, alive, and living in the home. A good defense makes no difference if the legal system wants your property.





Miami attorney Dori Foster-Morales won election without opposition as president-elect designate of The Florida Bar. She will be sworn in as president-elect in June of 2019 when John M. Stewart of Vero Beach becomes president. She will be sworn in as President in June of 2020.


CAP OUT .......

Anonymous said...

When a lawyer signs some pleading like that he or she is not experencing personal problems. He or she is simply not fit to be a lawyer. If a judge rules against you and you file that shit, you, sir, are not fit to be a lawyer.

Anonymous said...

Not so fast on this rush to condemn attorney Jacobs, who I do not know at all. But having practiced criminal defense in S FL for 30+ years, I do know a little bit about the First Amendment, lawyer's duties to his/her client, and other important factors which seem to have been minimized if not ignored by the 3rd DCA and some of the above comments. Please check back on this post tomorrow or Sunday, as I hope to have a detailed comment with an opposing viewpoint, and would invite healthy, robust discussion. Again, not in any way associated with Jacobs or his appellate crew, and not at this point defending his actions, but just concerned we may be missing the bigger picture here. And, more importantly, happy holidays and health to all!

Anonymous said...

Re: Wednesday, December 19, 2018 9:24:00 PM

A lawyer is required under Rule 4-8.3(b) to report professional conduct. Attorney Jacobs put his report of misconduct in a pleading instead of to the JNC, which usually a waste of time because the JQC too often rules in favor of the bad judge. The show cause order brings this important issue to light, and to much needed public discussion and debate. I am not a lawyer, nor affiliated with Jacobs, but I have been in his shoes.

(b) Reporting Misconduct of Judges. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

Definition of a Florida judge: A lawyer who can no longer earn a living practicing law; yes this is a refutable presumption.

Anonymous said...

Here are my updated thoughts … So, while many on this blog may not agree with Jacobs' strategy or tactics, I believe we should tread very lightly before approving/tolerating a Court's efforts to sanction such constitutionally protected free speech. The 3rd District may or may not be as Jacobs describes - and I offer no opinion one way or the other - but the important, and apparently lost point, is that our Constitution grants him (and anyone else) the right to say it.

Last month, dissatisfied with a ruling, President Trump said that “the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result.”

Appellate judges routinely use language strongly similar to Jacobs'words when dissenting from a majority opinion with which they disagree. Among numerous examples, see, Skakel v. Comm'r of Corr., 329 Conn. 1, 222, 188 A.3d 1, 125 (2018)(Espinosa, J., dissenting)(“I write separately in order to highlight the continued and disturbing practice … of certain justices of this court ignoring the law and fabricating facts in order to reach their desired result.”); State v. Arbaugh, 215 W. Va. 132, 144, 595 S.E.2d 289, 301 (2004)(Davis, J., dissenting)(“… the majority has bent, stretched, ignored and distorted law and facts …”); State v. Dalton, 369 N.C. 311, 329, 794 S.E.2d 485, 497 (2016)(Martin, Chief Judge, dissenting)(“The majority has created imaginary facts, while the concurrence has reimagined the law.”); In re Jackson, 3 Cal. 4th 578, 617, 11 Cal. Rptr. 2d 531, 556, 835 P.2d 371, 395-6 (1992)(Mosk, J., dissenting)(“What this court cannot do with impunity is deny our citizens rights guaranteed by the United States Constitution. In the case at bar the majority attempt[s] to do exactly that … to reach that result the majority distort[s] the meaning of the federal standard and misstate[s] the record.”); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 299 (4th Cir. 2015)(Wilkinson, J., dissenting)(“The majority's conclusion to the contrary rests on two distortions, one factual and one legal. First, the majority brazenly distorts the facts …”).

Are we taking the position that it is OK for the President, and appellate judges, to say these things abut a court, but if a lawyer does so defending a client, he or she needs to show cause why they're not in contempt? Isn't the First Amendment about more? And shouldn't the 3rd District be better than that? Without defending Jacobs, because I don't know him, I'm offended by the apparent arrogance of a Court who had its feelings hurt, and became a bully.

And as for the 3rd District's suggestion that the 4th Motion to disqualify the Court was "frivolous" because the Court "had previously three times denied virtually identical motions filed by them.", one view of this statement is not that Jacobs' was being frivolous, but rather, that it demonstrates the height of arrogance by the 3rd DCA. From the cases they cite as the previous 3, one was apparently denied because the motion was not timely filed (i.e., not addressed on the merits), and the other two appear to be pending cert (i.e., not final). So, none of the 3 previous attempts to disqualify are final, and if Jacobs failed to pursue his request in the fourth case, I assume the 3rd would have held that to be a waiver of his client's right to a fair and impartial tribunal, in the event that he ultimately prevailed on the cert cases.

Just some stuff to think about folks.

Anonymous said...

"Ethical rules that prohibit attorneys from making statements impugning the integrity of judges are not to protect judges from unpleasant or unsavory criticism. Rather, such rules are designed to preserve public confidence in the fairness and impartiality of our system of justice.”

So in other words, lawyers have to hold their tongues so that the public always thinks of judges as upright and shining paragons of "fairness and impartiality." Even if the "statements impugning the integrity of judges" are true and accurate.

Remember when Broward lawyer Sean Conway called Judge Cheryl Aleman an "evil, unfair witch." Of course, the Bar went after him and he had to pay a fine and suffer a reprimand.


Even though, the judge actually was an unfair witch, as the JQC decreed.


You covered this at length.

Conway wasn't the only lawyer in Broweird punished for speaking the truth. The Bar went after another lawyer who dared speak the obvious about that crying corrupted travesty called Seidlin.


The Bar and the Courts have made it clear that they are not so much concerned with actual propriety or impropriety, but just the "appearance" of propriety or impropriety. It rarely matters to them if a judge is actually unfair or corrupt. What outrages them is when somebody says a judge is unfair or corrupt. When a lawyer makes such an utterance, it must be punished, even if it is true. Maintaining a facade is of paramount importance. Actual corruption and unfairness are negotiable and trivial sins. Speaking ill is the unforgivable sin!

Not that this preserves much "public confidence in the fairness and impartiality of our system of justice.” Most of the public think judges and lawyers are corrupt anyway. But I guess all sworn members of the sacred order of the Bar must always keep the pretense in public and never openly admit what everyone else knows to be true.

Jacobs may just be some bitter unhinged sore loser who lost on the merits. But it's no secret that Florida courts have bent over backwards to accommodate banks in the foreclosure process. And it's no secret that the Third DCA is especially bank friendly in its treatment of foreclosure appeals. So perhaps Jacobs' allegations are not some whole-cloth fabrication.

"You win by outthinking your opponent-which as a general proposition when dealing with "they who shall not be named" is not as hard as it might first appear."

We would love to think that. But virtually any brilliant and meritorious argument can be snuffed out and buried with a PCA. No explanation required and probably no further appeal possible.