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Federal Court is Different

Tuesday, May 2, 2017

The recent case of The Florida Bar vs. Cyrus A. Bischoff, SC14-2049, March 2, 2017 illustrates the point that Federal Court is not for beginners.  This article will not address the potential issues with the sanction in this case as this article is intended as a cautionary admonition to lawyers in general.  Having said that, before you litigate in Federal Court make sure you know the law and procedure.  It is imperative that the practitioner have experience with the rules of procedure.  That experience can come from numerous sources not the least of which would be mentoring.  The strict rules and regulations that govern federal litigation must be adhered to by the practitioner and requires knowledge obtained from numerous sources.

The following rule of the Florida Bar addresses this issue:

Rule 4-1.1 COMPETENCE

A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

The comments concerning this rule provide helpful guidance as to how a lawyer can acquire competence in a particular field of law.  More specifically a lawyer lacking competence in a novel field may become competent by doing some or all of the following:

1.     A lawyer can provide adequate representation in a wholly novel field through necessary study.

2.     Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

3.     Competent representation may also involve the association or retention of a non-lawyer advisor of established technological competence in the field in question.

The following findings by the Referee in the Bischoff case are illustrative of what can happen to a lawyer who is not competent to practice in Federal Court:

“The referee found that Bischoff’s conduct demonstrated a lack of competency in handling the client’s case, and that his misrepresentations to the court and other conduct served to obstruct the discovery process.”

The Referee further found that:

“Bischoff lacked the legal knowledge and skill necessary to represent the client. Though Bischoff had practiced in federal court for seven years before the client’s case, the referee found his actions demonstrated that he did not understand the basic requirements to litigate cases in a federal court.”

And that,

“He did not comply with the Federal Rules of Civil Procedure in amending his complaint, and he made no effort to communicate with opposing counsel in filing motions for extensions of time. The referee further found that Bischoff failed to inform himself on the applicable law.”

The bottom line to this admonition is that Federal Court is no place for the uninformed.  The Bischoff case is illustrative of that and the findings of the Referee which were confirmed by the U.S. District Court Judge confirms that the attorney in question did suffer from a lack of knowledge as to Federal Court Procedure and as such he found himself with a one year suspension which under the circumstances of his actions probably a penalty that easily could have been increased.

I would strongly urge any attorney who is considering Federal Litigation to read this opinion and in doing so hopefully will avoid running afoul of The Florida Bar.