Bank of America v. Atkin

Third District Court of Appeal
State of Florida
Opinion filed December 14, 2018.
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No. 3D18-1840
Lower Tribunal No. 09-87096
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Bank of America, N.A.,
Petitioner,
vs.
Ryan Atkin,
Respondent.
A Case of Original Jurisdiction – Prohibition.
Liebler, Gonzalez & Portuondo, and Elizabeth A. Henriques, for petitioner.
Jacobs Legal, PLLC, and Bruce Jacobs, Amida U. Frey, and Anna C. Morales,
for respondent.
Before SUAREZ, LOGUE, and LINDSEY, JJ.
LOGUE, J.
ORDER TO SHOW CAUSE
Upon our review of the Respondent’s Response to Petition for Writ of
Prohibition and Motion to Disqualify the Third DCA from Ruling, Case No. 3D18-
1840 (Fla. 3d DCA Sept. 17, 2018) filed by Bruce Jacobs and Jacobs Legal, PLLC,
including the documents in the appendix, we hereby order Bruce Jacobs, Esquire,
and Jacobs Legal, PLLC, to show cause within ten days why this court should not
impose sanctions for violations of the Florida Rules of Appellate Procedure and
Rules Regulating the Florida Bar.
a. Impugning Integrity of Judges.
Every lawyer admitted to the Florida Bar has sworn that he or she “will maintain
the respect due to courts of justice and judicial officers” and to “abstain from all
offensive personality.” In this regard, Rule 4-8.2(a) of the Rules Regulating the
Florida Bar provides in pertinent part:
A lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge . . . .
“[E]thical 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.” The Florida Bar v. Ray, 797 So.
2d 556, 558-59 (Fla. 2001).
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Insults or disparaging comments by lawyers to courts in court filings cannot
be justified as zealous advocacy because they risk alienating the very judges the
lawyer was hired to persuade. Insults normally reflect--not attempts at persuasion--
but the abandonment of any attempt to persuade. A lawyer resorting to insults in
court filings is perhaps genuinely expressing his or her frustration at not being able
to persuade the court. But this venting can come a high cost to the client’s interests.
And disparaging comments cannot be justified as a means to identify problems in
the legal system because insults usually garner resistance to an idea rather than a
sympathetic consideration.
For these reasons, “[i]t is not a part of an attorney’s duties to his clients to use
language in his Petition for Rehearing, or in any other papers filed in this court, that
is actually insulting to the members of the panel which heard the case.”
Vandenberghe v. Poole, 163 So. 2d 51, 51 (Fla. 2d DCA 1964). “Although attorneys
play an important role in exposing valid problems within the judicial system,
statements impugning the integrity of a judge, when made with reckless disregard
as to their truth or falsity, erode public confidence in the judicial system without
assisting to publicize problems that legitimately deserve attention.” Ray, 797 So. 2d
at 560.
This court finds there is a reasonable basis to conclude that Mr. Jacobs and
Jacobs Legal, PLLC violated 4-8.2(a) on September 17, 2018, when they filed the
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Response containing the following statements recklessly impugning and disparaging
the judges of this court and two judges of the circuit court:
o “In Simpson [sic], this Court violated the standard of review,
ignored Florida Supreme Court precedent, and falsified the facts
in contradiction to the record.”
o “The impartiality of this Court is objectively questioned and it
cannot issue a ruling with integrity in this case.”
o A named circuit court judge acted with “blatant disregard for the
rule of law and the client’s constitutional rights” in an unrelated
case and was upheld by this Court.
o The same circuit court judge has “recently escalated her illegal
conduct.”
o A different, unnamed circuit court judge changed a favorable
ruling because opposing counsel “threw a fundraiser for the new
judge who rotated into the division.”
Resp. at 4, 8, 9, 10, 12.
This court also finds there is a reasonable basis to conclude that Mr. Jacobs
and Jacobs Legal, PLLC violated this Rule on August 10, 2018, when they filed with
the United States Supreme Court the jurisdictional brief they attached as Appendix
1 to their Response containing the following statements impugning and disparaging
the judges of this court and the Florida Supreme Court:
o “The opinion [of this Court] 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.”
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o “The Third District Misrepresented the Amended Rule 1.540(b)
Motion to reach a pre-determined result – foreclosure.”
o “… the Dishonesty of the Third DCA’s opinion.”
o “The Florida Supreme Court has repeatedly declined to protect
the constitutional rights of foreclosure defendants.”
o “[I]n virtually every appeal where the trial judge ruled in favor
of undersigned counsel’s client, including Simpson, the Third
DCA reversed with intellectually and factually dishonest
opinions.”
o This Court “attempt[ed] to cover up, protect, and ignore well-
documented fraud on the court in foreclosures. All to ensure a
pre-determined result – foreclosure.”
o “The Third DCA’s Opinion is pretextual and arbitrary.”
o “This Court is called on to act because the Florida Supreme Court
has taken no action to prevent the Third DCA from improperly
ignoring fraudulent conduct in foreclosures.”
o “It is objectively reasonable to fear the Third DCA acted to reach
a predetermined outcome that favors banks over homeowners –
foreclosure. If the Florida Supreme Court will not act, this Court
must.”
o “Democracy will not fail if financial institutions are held to the
rule of law. To the contrary, democracy falls if the public is
allowed to believe Courts are biased in favor of bad corporate
citizens and a fraudulent foreclosure process.”
App. 1 to Resp., Pet. for Writ of Cert., Simpson v. Bank of New York Mellon, Case
No. 18-187 (U.S. Aug. 10, 2018) at 5, 10, 13, 17, 21, 32, 33, and 43, cert. denied
(Oct. 29, 2018).
b. Frivolous Filing: Motion to Disqualify.
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Rule 9.410(a) of the Rules of Appellate Procedure authorizes this court to
“impose sanctions for any violation of these rules, or for the filing of any proceeding,
motion, brief, or other paper that is frivolous or in bad faith.” Pursuant to this Rule,
this court finds there is a reasonable basis to conclude that Mr. Jacobs and Jacobs
Legal, PLLC violated these Rules or filed a paper that is frivolous or in bad faith
when they included in their response a motion to disqualify this entire court from
considering this case when this court had previously three times denied virtually
identical motions filed by them. See HSBC Bank USA, Nat’l Ass’n v. Buset, Case
No. 3D16-1383 (Fla. 3d DCA May 14, 2018) (denying motion to disqualify the
entire Third District Court of Appeal), case dismissed, Case No. SC18-1099 (Fla.
July 20, 2018) (“It appearing to the Court that the notice was not timely filed, it is
ordered that the cause is hereby dismissed on the Court’s own motion.”); Rodriguez
v. Bank of Am., N.A., Case No. 3D17-272 (Fla. 3d DCA July 2, 2018) (denying
motion to disqualify the entire Third District Court of Appeal), rev. denied, Case
No. SC18-1288, (Fla. Aug. 7, 2018), cert. pending, Case No. 18-723 (U.S. Oct. 11,
2018); Marin v. Bank of New York, 220 So. 3d 1220 (Fla. 3d DCA 2018) (denying
motion to disqualify the entire Third District Court of Appeal), rev. denied, 2017
WL 1398651 (Fla. July 31, 2018), cert. pending, Case No. 18-711 (U.S. Sept. 19,
2018).
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In light of these prior denials, the fourth motion to disqualify appears to have
been designed to serve no other purpose than to allow Mr. Jacobs and Jacobs Legal,
PLLC to express “the bottomless depth of the displeasure that one might feel toward
this judicial body as a result of having unsuccessfully sought appellate relief,” Ayala
v. Gonzalez, 984 So. 2d 523, 526 (Fla. 5th DCA 2008), a course of conduct which
justifies sanctions. Id.CONCLUSION
Based upon the foregoing, and upon this court’s own motion, Bruce Jacobs,
Esquire, and Jacobs Legal, PLLC, are hereby ordered to show cause within ten days
why this court should not impose sanctions for filing a Response and Appendix that
violate the Florida Rules of Appellate Procedure and Rules Regulating the Florida
Bar.
The court reserves jurisdiction to impose such sanctions as may be appropriate
and to order further response, including the personal appearance of appellant’s
counsel, should the written response be deemed insufficient.
Order to show cause issued.
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