A curious instance of legal misfeasance occurred some time ago. It was brought to my attention just before it was referred to the authorities. The litigation had been ongoing for several years and late in 2022 a motion was made for appointment of an Expert Medical Advisor. About a month later, an EMA was appointed and trial was continued to accommodate the evaluation and testimony.
There was later an objection to the EMA provider. This was premised in part on the requirement for a "conflict of interest" form. The objecting party noted that the form "form was never returned to the JCC according to the Court File." This seems to refer to the OJCC file, merely a lazy reference to "court."
The objecting party also noted that the EMA charged a significant fee for the examination and other services. There were allegations that those exceeded what the law allowed. This included a schedule of charges including "$1,000 per hour to read records." Arguments were made of indifference to this fee amount, and allegations of the carrier being "complicit in concurring with this with this knowing violation." There were other complaints voiced regarding the charges for a deposition (another $2000).
To this point, the case was somewhat familiar. There have been various instances over the years in which medical charges have raised questions. The parties elected to instigate a joint call to the assigned judge's office to discuss perceptions of the fee issues. One of the attorneys decided that it would be prudent to record this conversation. There are two red flags in this paragraph.
First, the OJCC staff is not empowered to remedy substantive issues for the parties. There is no valid purpose for attorneys to engage staff except to seek scheduling assistance or advise of challenges or problems. State staff is not who to ask for relief, see Rule 60Q6.115.
The second red flag is the recording of the call. Any Floridian should have seen that immediately. If you are a lawyer, you should have seen it even sooner.
So that there would be no denying the recording occurred, the lawyer in this instance embedded a link to the recording in a pleading and filed the pleading with this Office. That lawyer was seeking various relief from this Office, and included this recording link. An important point is that anything filed with this Office is a public record. This pleading, in which the recording is described and linked, is a public record.
Essentially, it is a public record that says "I broke the law, and here is the proof."
Florida is what is referred to as an "all-party consent state." That means that if a person has "a reasonable expectation of privacy (e.g. not in a public place)" then making a recording of that person without their permission may be a crime. See Recording Phone Calls, and Conversations, a 50-State Survey, Justia.com.
In some instances, violation of the Florida statute, section 934.03 is "a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41." That is problematic. Lawyers, you see, are not supposed to commit felonies (in fairness, no one is supposed to commit felonies). The Bar frowns upon criminal activity. As important, The Rules Regulating The Florida Bar (3-4.3 and 3-4.4) may be of interest in the whole "felony" arena.
The Florida Fourth District Court has noted that "section 934.10, Florida Statutes (2019), ...creates a civil remedy for violations of the Act, including unlawfully recording phone calls without the consent of all parties. See § 934.10(1), Fla. Stat. (2019)." Race v. Mitchell, 357 So. 3d 720, 722 (Fla. 4th DCA 2023), review granted, No. SC2023-0432, 2023 WL 4270985 (Fla. June 29, 2023).
So, perhaps one might face both civil and criminal penalties for recording someone without their knowledge. And if the recording is done by a lawyer, then there could be broader concerns with The Bar.
In this regard, the actions of staff may be the lawyer's responsibility, see Rule 4-5.3, Rules Regulating The Florida Bar. Potentially, the staff could commit the crime and/or be civilly liable, but the lawyer could face Bar discipline for the staff's actions. Some might successfully argue that same staff is an agent of the attorney or law firm and seek those civil damages from the lawyer under the theory of respondeat superior.
Making surreptitious recordings of people without their knowledge may be problematic. Admitting to having done so, in a public record filing, is perhaps not the brightest maneuver one might contemplate. The criminal referral in this particular matter did not result in a conviction. Nonetheless, the behavior justifies serious consideration and thought.
A lawyer prosecuted for breaking the law might run serious risks of penalty. A conviction might even impact the lawyer's ability to practice law. "As guardians of the law, lawyers have a special obligation to honor the law themselves." The Fla. Bar v. Behm, 41 So. 3d 136, 139 (Fla. 2010). See Rules Regulating The Florida Bar, Rule 3-4.3 and 4-8.4(c).
It would seem untoward at best to record conversations in Florida without the consent of the others on the call. It is an important thought for all, but more so for a licensed attorney. Making a recording is a bad idea. Making a public record admission that you have done so is beyond foolish.
