WELCOME COLLEAGUES TO “COMMITMENT & DEDICATION” .......

THE CAPTAIN REPORTS:

QUERY: WHEN WAS THE LAST TIME YOU “ZEALOUSLY” REPRESENTED YOUR CLIENT?

We have all heard the term used a thousand times before. We were taught it back in law school and in our first jobs after getting sworn into the Bar. Heck, it was written directly into the Rules of Professional Responsibility. We use it in our arguments to the Court. We stand behind it when we communicate our position to our opponent in a case. We have always been taught to be zealous advocates and nothing less. Give it 110%. Zealously represent your client; zealously advocate your client's position.

Well, no more. Add the “Z words” - “zeal, zealous, and zealously” to George Carlin’s Seven Dirty Words You Can Never Say.*

That’s because your Florida Bar’s Board Of Governors (BOG) has voted to eliminate the “Z words” from anywhere in our lexicon.

Here is the Report from your BOG (and you thought your Bar dues were going to waste):

“The board voted, after a lengthy discussion, to approve a Real Property, Probate, and Trust Law Section proposal to scrub so-called “Z words” — zeal, zealous, and zealously — from the Bar rule book. The proposed amendments would remove references to “Z” words from the Preamble to Chapter 4 and the comment to Rule 4-1.3 — and add a comment that would offer an explanation and historical perspective.

Under the proposal, a sentence in the Preamble, “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system,” would instead state, “As an advocate, a lawyer asserts the client’s position with commitment and dedication to the interests of the client under the rules of the adversary system.”

Another sentence in the Preamble, “Zealous advocacy is not inconsistent with justice,” would instead state, “Commitment and dedication in advocacy are not inconsistent with justice.”

A sentence in the comment to Rule 4-1.3 (Diligence), “A lawyer must also act with commitment and dedication to the interests of the client and with zeal and advocacy on the client’s behalf,” would simply state, “A lawyer must also act with commitment and dedication to the interests of the client.”

The proposed new comment would appear in the Preamble under the subheading “Conduct.”

“All prior references to this chapter to a lawyer’s duty to act zealously, as a zealous advocate, or with zeal upon the client’s behalf have been removed. Zealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior,” the comment would state.

The comment would refer to a 2000 Supreme Court decision, The Florida Bar v. Buckle, in which the justices wrote, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

During a July meeting in Sarasota, Tampa lawyer Larry Miccolis told the Rules Committee that the RPPTL’s Ethics and Professionalism Committee formed a subcommittee last year to study the issue.

“We looked at the term’s etymology, the history of the terms, caselaw, other states’ jurisdictional rules,” he said. “Z terms have a long history. But today, we found that there is more often a negative treatment associated with negative behaviors and labels.”

Miccolis was quick to credit the committee chair, Andy Sasso, with proposing the change.

But shortly before the vote, board member Karl Klein, a Miami lawyer, said he was concerned some lawyers would be tempted to temper their dedication to their client’s cause.

“What I worry about is the good attorneys, who do read the rules, and who would say, ‘Oh, I can’t represent my clients with zealous advocacy anymore,” Klein said.

Board member Michael Gelfand defended the proposal, saying too many lawyers use the reference to excuse their unprofessional behavior.

“When we go back to our districts, what’s the No. 1 issue our constituents complain about,” Gelfand said. “It is professionalism.”

The change is needed now more than ever, Gelfand said, when beginning lawyers are launching solo practices without the moderating influence of a mentor.

“We have seen lawyers in the courtroom who have justified their conduct because they have to be a zealot,” he said. “This is our way to start bringing back professionalism, which is why our constituents largely sent us here.”

The board approved the proposed revisions, 24-9. The Supreme Court will have the final say.”

So, the next time you appear in court, and you look the judge right in the eye, doing your best job in arguing your Motion to Suppress on an issue that will determine whether your client spends the rest of their life in prison, and things get really heated, just remember to say, “but your honor, I was just trying to show my commitment and dedication for my client’s position".

Alex Michaels Is Now Officially Turning Over In His Grave!!!

CAPTAIN OUT .......
Captain4Justice@gmail.com

LIFE GOES ON

Life goes on and so do we.

There is death and tragedy and suffering and waiting to be called for a case and waiting to get into FDC...

And there is life and art and literature and beauty and decency and caring and concern for others. 

So in the face of heartache and pain of losing a good friend, we do what he would have wanted. We go on. Living our life as best we can. Blogging like no one else can. And winning cases....

Speaking of winning cases...

DOM scored another win this week in federal court. 

A nasty EPA , dredging behind a home   without all the permits case in the Keys case.  The feds came after his client like he was Pablo Escobar caught with a thousand keys....or like a Biden supporter in Georgia tinkering with the voting machines. 

But it didn't matter. Justice prevailed and David and his team head into the new year with a nice Christmas win. 

Rumpole's rules of trials #7: Schedule your toughest cases for the weeks before Christmas and New Years. 

Congratulations to Team Markus for a great win. Alex Michaels would be proud. 

ALEX MICHAELS FUNERAL FRIDAY

 Alex Michaels funeral is tomorrow (Friday) starting at 12 noon:

Caballero Rivero Southern 

15011 W Dixie Highway 

North Miami 

12-2 pm. 

There may be a zoom link which we will post when we receive it. 

NFL VEEK 14 2021

 In Honor of Alex Michaels, @draulawyer, an honorary Twitter account that was established many years ago, and we heard that Alex loved, @draculawyer vill make dee picks for fooootaball dis veek. 

Plotting to vin another case

[But first, both Colby and Clay Kaeiser have picked the Packers this week in the survivorpool]. 

Rumpole, here are my pics for dis veek. They vill vin. 

Cowboys vill beat Vashington Football teem by more den 4. Vat is dere problem, dis Vashington teem? How long dey take to pick new name? I give dem until next veek and den I again start calling dem Redskins. Or Dumbskins, or Don-know-my-name-skins.  Or how bout De Monuments because dey are blockheads? Either vay dey lose today. 

I like dee Bills to light it up against Tampa. I make lots of money last year betting on Brady even though he a pretty boy. Bills + three and over 52. 

Bengals bounce back today. Dey say Bengals QB has hurt pinkie. Oh poor little boy. My heart bleeds for you. Man up. Today dey vill beat 49ers because 49ers have real injuries and many players out.  

Cardinals -2.5 beat Rams at home Monday night. Dey beat dem once dis year and now they are better. Cardinals vill vin super bowl dis year. I told you here first. Bet on it. 

@draulawyer.

ALEX MICHAELS HAS PASSED AWAY

UPDATE: FUNERAL ARRAGMENTS FOR FRIDAY DECEMBER 17 

Friday, Dec. 17, 2021. Funeral is at Caballero Rivero Southern at 15011 W. Dixie Highway, North Miami, Florida 33181. Viewing is from 12-2. The burial will be afterwards.  

Alex Michaels, originally known to us as Alex Micalescu, has passed away. This is sad news. Under any measure, he has been known and will be known as a true Justice Building Legend. That word is not too strong in representing who he was. 

Alex had a super-hero origin story. Escaping communist Romania by swimming across a river. Hustling chess and backgammon in the parks of NYC. Starting as a prosecutor in Miami in Janet Reno's office, until he found his true calling as a defense attorney. 

Alex won cases no one else could win. He did it without regard to any personal or professional costs. When a client hired him, that case became his cause. In an age when the NY Times is writing op ed pieces on dirty prosecutors ruining people's lives and getting away with it, perhaps we should not be too quick to condemn Alex for some of his more public disciplinary issues. Sure he cursed at a prosecutor in court (in Romanian), but Alex often was surprised that his antics were taken so personally. He once made a prosecutor cry, and then sent her flowers as an apology. 

There are legions of stories about the cases Alex won. He caught a prosecutor lying in court during a motion to suppress, and somehow discerned that SHE had actually been in a warehouse with a police officer, canoodling, when his client was accused of breaking in and trying to steal drugs. Case dismissed. Prosecutor quit/fired. 

How many blog readers have had a Not Guilty in a first-degree murder case? Alex could have papered the walls with his office with his NGs. He had a murder case once before Judge De La O, who told us that the cross was right out of a movie, where the eye-witness broke on the stand and refused to continue with the cross.  Alex hammered him. The case was JOA'd.  

The stories go on and on. 

What we are left with is a lawyer who gave his all for his clients, in every case, every time. Law and defense were not a business for him. They were a cause, a passion. Coming from oppression, Alex understood what it meant to be oppressed. He knew what it felt like to have no voice. He was at his best standing up for a client no one else would stand up for. And he did it time and time again, giving no ground, suspicious of everything, fighting for his client until his last dying breath. 

We will not see the likes of Alex Micalescu/Michaels again. But we celebrate his life and mourn his death. 

Goodbye old friend. 

SAY HELLO TO MY LITTLE FRIEND

UPDATE: There's been a terrorist bombing of an airport in Turkey. Many are dead. Many are wounded. 

The Secretary General of the UN (five bucks if you can name him) issued a strongly worded statement condemning the bombing. 
Well, that's that. No terrorist organization wants to be strongly condemned by the UN Secretary General. That will surely end the suicide bombing problem. A strongly worded condemnation will surely ruin their day. 



There was a shooting at a bar named Grumpys. 

So naturally, famed (and often Grumpy) Miami Criminal Defense Attorney Alex Michaels has the case.

Here is the link to the video of the shooting, courtesy of the Miami Herald and David Ovalle (who's never grumpy as long as he has black coffee.) 

Trial set for next month. 

And because he couldn't resist it, Alex Michaels was quoted as saying "Say hello to my little friend." 

Another fun Miami Trial. 

Meanwhile, guns don't kill people. People kill people. Guns are every American's natural born right to have and to hold and to cuddle with and sleep with and you're damn well tootin to use for self defense when the bad guys come. 

Right? 

Right all you fervent protectors of the second amendment? 

Except when your mother has one and uses it to kill you and your sister because she is deranged. Which is what happened in Texas (naturally) the other day. 

 And with all those gun toting Texans wandering around with six shooters strapped to their hips, which is their god-given right as Texans and Americans, none of them managed to shoot the house-wife before she murdered her children in the street.  

The story is here in case you missed it while re-reading the second amendment. 

Yup, what we need is access to more guns, because since terrorists on no-fly lists can buy one or a dozen any weekend, the only way to fix that is make sure the ability to buy a gun gets easier and easier. It certainly didn't stop that woman from getting one and murdering her children. 


See you in court. 

A PARTIAL WIN

There is nothing funny in the 3rd DCA's decision in Alex Michael's contempt case. While the decision is a partial vindication for Michaels, it leaves standing one contempt conviction for which Judge Miranda will surely seek her pound of flesh by insisting that Michaels finish serving the two day sentence she originally imposed.  Left unsaid in the opinion was the court's scathing commentary during oral argument about a judge that imposed a two day prison sentence on a Friday afternoon and did not allow Michaels to post an appellate bond. 

The more disturbing portion of the 2-1 decision is the court's traducingly gratuitous comment about referring Alex to the Florida Bar. The majority's comment further demeaned an opinion that was persuasively refuted by the dissent of Judge Lagoa. 

So here is the opinion and have at it, but be warned that we will not post vituperative and demeaning comments. 

AN ARTHUR HEARING

THIS IS THE CITY. MIAMI, FLORIDA. 

There's a lot to do here. You can splash in the surf, eat like a king, dance until dawn, sail a boat at sunset. According to the 2010 census, there's 2,496,435 people who call this city home. And when one of them dies, that's when I go to work; I write a blog. 

The story you are about to read is true. The names have not been changed. The defendant is presumed innocent. 

On October 7, 2013, an Arthur Hearing was held at the Richard E. Gerstein Justice Building. This is how it unfolded as  tweeted by Herald reporter David Ovalle:

David Ovalle ‏@DavidOvalle305

In court for missing body Arthur hearing. Actually this is my first hearing of any substance in Judge Hendon's. Det. Juan Segovia up first

David Ovalle 
Det. Segovia says Maqueira, laughing and mocking, constantly challenged them to show him Raquel's body.

David Ovalle 
Alex Michaels bellowing re: why MDPD never records most interviews (this case, post-sworn statement). Judge calmly overrules objection

David Ovalle 
Det. Segovia says Maqueira, laughing and mocking, constantly challenged them to show him Raquel's body.

David Ovalle ‏ 
For leverage in interrogation, Det. Segovia showed Maqueira that his daughter was in office talking to cops. "He looked like he saw a ghost"

David Ovalle ‏
Alex Michaels objected. "Not sure the detective is familiar with ghosts ... what they look like," Michaels said.

David Ovalle 
Prosecutor asks about unnamed jailhouse informant.  "You can call him Rat No. 1," Alex Michaels says. Judge shakes head, says nothing

David Ovalle 
Alex Michaels just went ballistic, pointing out Maqueira's phone located at scene of vanishing, not neccesarily defendant himself

David Ovalle ‏
To explain why his phone pinged in area of estranged wife's disappearance, Maqueira claimed that he gave it to her as an impromptu gift. 

This is one of those rare, but not unheard of cases of a murder prosecution without a body. The arthur hearing didn't conclude on Monday.

See You In Court. 

LAGOA TAKES MIRANDA & VON ZAMFT TO TASK

The much anticipated oral argument at the 3rd DCA occurred today in Alex Michaels contempt case. We watched the live video feed, and were much amused by Judge Schwartz almost stroking out and holding a litigant in contempt in a mortgage foreclosure case heard before Alex's case came before the court.  
But then it was time for Alex's case and the panel in courtroom left and Judge Wells (who was on the prior panel) led Judges Lagoa and Shepherd into the courtroom. 

Ken Speiller (counsel for Alex Michaels) was barely finished introducing himself when Judge Lagoa interrupted him and began a series of questions that must have made Alex and his lawyer thrilled. 

Lagoa started off by noting that Judge Miranda's contempt order found two separate and distinct actions by Alex Michaels contemptuous: first- by making what Judge Miranda characterized as a "violent gesture" and second, by muttering a Romanian curse word under his breath. 

Lagoa noted that nine witnesses testified at the contempt hearing. None testified that the gesture- Alex holding his hand out as if to say "stop" while Von Zamft was interrupting him- was a threatening gesture. Lagoa noted that Von Zamft's co-cousnel testified that when Von Zamft approached the podium it was his fist that was clenched. Before the first few minutes were over it was clear that one of the two counts of contempt against Alex Michaels had not withstood judicial scrutiny. 

Then came the bombshell: Judge Lagoa chastised Judge Miranda for holding Alex in contempt on a Friday, sentencing him to two days jail, and not allowing him to post an appeals bond. Her displeasure with Judge Miranda's actions was very clear. Lagoa followed that up with several comments about Von Zamft, noting the clenched fist and Von Zamft's repeated statements that he was going to seek to have Alex Michaels Baker Acted. It became very clear to us that Judge Lagoa was of the opinion the wrong lawyer was standing before the 3rd DCA. 

Judge Shepherd was willing to concede the now infamous "threatening gesture" count, but he was clearly troubled by the possible curse word. Judge Wells was just troubled. She opined several times that the entire hearing was out of control and she was greatly displeased by the behavior of both attorneys. 

Rumpole says: The panel clearly had trouble with proof of criminal contempt beyond a reasonable doubt. To us, the normal appellate court's  desire to defer to the trial judge was eradicated by what they perceived as the judge's completely improper sentence of two days jail without providing the lawyer the ability to appeal. Judges Shepherd and Wells are not thrilled with this case and the actions of both lawyers. However, Judge Lagoa's apparent strong belief that nothing in the record supports the finding of contempt against Alex Michaels appears to us to be sufficient to carry the day. 

FU
Oscar Madison: I can't take it anymore, Felix, I'm cracking up. Everything you do irritates me. And when you're not here, the things I know you're gonna do when you come in irritate me. You leave me little notes on my pillow. Told you 158 times I can't stand little notes on my pillow. "We're all out of cornflakes. F.U." Took me three hours to figure out F.U. was Felix Ungar!


We're trying to post the video of the oral argument, but it might take us some time, so check back. 

See You In Court. 

FREE ALEX MICHAELS!!!

UPDATE:
After finding Alex Michaels in contempt, Judge Miranda denied a request to allow him to post a bond pending appeal. This is most disturbing. The sentence was two days jail. Without bond pending appeal there would be no way for Mr. Michaels to seek review of the conviction for contempt without having already served the penalty. The judge's decision indicates that perhaps her emotions were involved, and that she was not impartially dispensing justice, but was angry and seeking to punish without regard to the rules, which are fairly clear:

(a) When Authorized. All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla.1956), provided that no person may be admitted to bail on appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the person's civil rights have not been restored or if other felony charges are pending against the person and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

FL Rule Crim Proc.  3.691

The 3rd DCA promptly ordered Mr. Michaels released when the petition was faxed to them Friday afternoon. Judge Miranda was simply wrong and her failure to allow Mr. Michaels to seek review of her order casts doubt on her impartiality and her decision in this matter. 

BREAKING!

Judge Miranda held a contempt hearing today for Alex Michaels. Nothing worth reporting about- sort of "dog bites man" story. In what week is Alex not in a contempt hearing?

But this afternoon, Judge Miranda sentenced Alex (he has a fake twitter account which is gaining cult status @draculawyer) to TWO DAYS DCJ!!!!

No idea yet what the allegations were, and whether Alex is out on appeal. Will update as we learn more.

Follow @Davidovalle305 of the Herald for the up to the minute theater.

UPDATE  1: Alex spent the week mumbling curse words under his breath allegedly about the judge and/or prosecutor. Not wise. 

UPDATE 2: 3rd DCA orders Alex released pending appeal. Alex happy Rudy Sorondo has retired. Who can forget the opinion in Quinones v. State, when everyone learned what "contumacious" means:
During the course of what should have been a simple case, defense counsel achieved unprecedented levels of attorney misconduct. Indeed, it is arguable that his intent was not to try the case at all but, rather, to sabotage it. Counsel's misconduct is best addressed as presented by the state in its motion for mistrial: first, repeated disobedience of the trial court's orders, and second, the suppression of physical evidence. His misbehavior unquestionably had a significant impact on the jury.

Defense counsel's disregard for the court's orders was not only unethical but contumacious. During the course of the trial, defense counsel directly and repeatedly ignored the court's ruling that no mention was to be made of the fact that the victim was incarcerated...

 But one bad omen on the horizon: Judge Rothenberg, who has held Alex in contempt when she was a circuit court judge, is on the 3rd DCA. Uhho.

UPDATE 3: David Ovalle has a portable putting green. 
Four letter word for  golf nut: nerd