MAY I PROCEED, YOUR HONOR?

YES. YOU MAY PROCEED.

GOOD MORNING DISTINGUISHED MEMBERS OF THE COURT AND DISTINGUISHED COUNSEL. ROGER CRAIG, REPRESENTING THE APPELLANT IN THESE PROCEEDINGS. IN BRIEF FORM, WHAT HAPPENED HERE WAS A FOREIGN ATTORNEY FILED A LAWSUIT. NO ANSWER WAS EVER FILED. A PLETHORA OF MOTIONS WERE FILED IN OPPOSITION. ONE OF THOSE MOTIONS WAS A MOTION TO DISQUALIFY COUNSEL, BECAUSE HE WAS NEITHER ADMITTED TO THE PRACTICE NOR HAD HE SOUGHT AUTHORITY TO REPRESENT HIS CLIENT HERE.

TAKE US BACK TO THE BEGINNING HERE, OF THIS. WHO SIGNED THE NOTICE TO INITIATE LITIGATION?

THE COMPLAINT, YOUR HONOR, WAS SIGNED BY MR. McHENRY, WHOSE SR. PARTNER --

SO THAT WAS -- WHOSE SENIOR PARTIER --

WAS HE AN AUTHORIZED FLORIDA LAWYER?

NO, SIR, HE WAS NOT.

SO THAT WAS THE BEGINNING OF THIS SIGNING OF DOCUMENTS, WAS THE NOTICE --

EXACTLY. THE COMPLAINT. HE SIGNED, FIRST, SIGNED THE NOTICE, AND THEN HE SIGNED THE COMPLAINT AS WELL.

NOW, AFTER IT WENT INTO THE COURT, AND THESE MOTIONS WERE RAISED, WHAT -- AT WHAT POINT IN TIME, AS FAR AS THE STATUTE OF LIMITATIONS RUNNING, WAS THIS ISSUE RAISED?

HE HAD -- HE THOUGHT HE HAD 13 DAYS IN WHICH TO FILE HIS COMPLAINT, BEFORE THE STATUTE WOULD RUN. THAT WAS HIS VIEW OF IT. WHETHER OR NOT THAT VIEW WAS CORRECT, I DON'T KNOW. THEN THE MOTIONS WERE FILED. THE MOTIONS WERE SET ON THE DAY OF HEARING. THERE WAS NO MOTION TO DISMISS PINNED PENDING, ON THE DAY OF HEARING OF THE -- TO DISMISS PENDING, ON THE DAY OF HEARING OF THE MOTIONS. ON THAT DATE THE DEFENDANT MOVED TO DISQUALIFY MR. McHENRY, FOR BEING A FOREIGN COUNSEL. AT THAT POINT IN TIME, BEFORE THE MOTION WAS CHANGED AND ARGUED, LOCAL COUNSEL WAS RETAINED AND DID ARGUES THOSE MOTIONS. NO ANSWER WAS EVER FILED, SO FOLLOWING THE ARGUMENT ON THOSE MOTIONS, THE TRIAL COURT GAVE COUNSEL AN OPPORTUNITY TO EXPLAIN TO THE COURT WHY HIS FAILURE TO OBTAIN COUNSEL SOONER OR HIS FAILURE TO FILE PRO VECIE, SOONER, WAS NEGLECT. HE WAS NOT SATISFIED WITH THAT ANSWER. THE CONSEQUENCES WAS HIS DECISION RAISES ONE OF THE THREE POSSIBLE DECISIONS THIS COURT CAN RAISE ON THE ISSUE.

WHAT WAS THE TIME FRAME, BEFORE YOU GET INTO THAT, BETWEEN THE NOTICE AND THE ACTUAL FILING OF THE COMPLAINT?

I DON'T KNOW THE ANSWER TO THAT. I KNOW THAT THE COMPLAINT WAS FILED IN OCTOBER, AND THE HEARING ON THIS CASE WAS SOME FOUR MONTHS LATER, I BELIEVE.

AFTER THE MOTION -- SO THE FIRST REACTION IS THE MOTION TO DISQUALIFY IS FILED, BECAUSE THERE IS NO FLORIDA LAWYER, AND THE LAWYER, THE OUT-OF-STATE LAWYER, THEN, GETS, RETAINS LOCAL COUNSEL.

HE DIDN'T RETAIN LOCAL COUNSEL IMMEDIATELY. THE FIRST THING HE DID WAS FILE A RESPONSE, YOUR HONOR, TO THE MOTION TO DISQUALIFY HIM, IN WHICH HE SAID IT IS TRUE THAT I AM NOT A FLORIDA LAWYER, BUT MY SR. PARTNER, ON WHOSE BEHALF I FILED THESE PLEADINGS, IS ADMITTED TO PRACTICE IN THE STATE OF FLORIDA, AND THAT WAS THE DEFENSE THAT HE WAS POSITING, AND THEN JUST BEFORE THE HEARING ON THE MOTION TO DISQUALIFY HIM, HE RETAINED LOCAL COUNSEL. LOCAL COUNSEL FILED, BY MAIL, PRIOR TO THE HEARING, AND THEN FILED A HAND-CARRIED COPY TO THE COURT, BEFORE THE HEARING ON THE MOTION TO DISQUALIFY.

AND THEN YOU ARE SAYING THAT AT THE HEARING IS THE TIME THAT THE MOTION TO DISQUALIFY, WHICH, NOW, IS REALLY, NOW HAS LOCAL COUNSEL THEN CONVERTED INTO A MOTION TO DISMISS.

THAT IS EXACTLY RIGHT.

BUT THIS PARTNER OF HIS WHO IS A FLORIDA LAWYER NEVER SIGNED A PLEADING?

NEVER SIGNED A THING, YOUR HONOR. NO. THE POSITION TAKEN BY MR. McHENRY WAS THAT I SIGNED ON BEHALF OF MY SR. PARTNER, WHO WAS ADMITTED TO THE PRACTICE. THAT WAS THE POSITION HE TOOK.

YOU AGREE -- YOU SEEM TO CONCEDE THAT THAT IS NOT --

I DON'T THINK THAT ISSUE WAS CERTAINLY NOT AN ISSUE WORTHY OF CONSIDERATION BY THIS COURT, IN MY VIEW. I THINK THERE IS AN INTERESTING IF NOT FASCINATING ISSUE, IN FRONT OF THE COURT, AS TO, AND I AM SURE THAT IS WHY THE COURT IS ENTERTAINING JURISDICTION HERE. THERE ARE -- I DON'T QUARREL WITH A HYPOTHESIS THAT THE FILING BY THE OUT-OF-STATE ATTORNEY, WHO IS NOT ADMITTED TO PRACTICE IN THE STATE OF MICHIGAN, IS NOT AN EFFICICIOUS FILING, AND THE QUESTION FOR THE DECISION THAT THIS COURT CAN DO IS DON'T ANY ONE OF THE THREE POSITIONS ALREADY EXITENT FROM THE COURT OF APPEAL, OR IT CAN FASHION ITS OWN OPINION OBVIOUSLY. BUT WHAT HAPPENED WAS THE TRIAL COURT TOOK A LOOK AT WHAT MR. McHENRY HAD DONE, SAID, AND ADOPTED THE RULE OF LINCOLN LIFE, LINCOLN LIFE A FIRST DISTRICT CASE, AND WHAT LINCOLN LIFE SAID WAS YOU -- THE FILING OF A COMPLAINT BY A NONFLORIDA LAWYER IN A FLORIDA COURT IS ANNULITY. -- IS A N ANNULITY.

WHERE DOES SKUF -- WHERE DOES EXCUSE FOR NEGLECT COME IN SNOIS ISN'T THERE SOMETHING HERE OF WHETHER IT IS EFFECTIVE OR ANNULITY? THERE IS NO EXCUSEABLE NEGLECT ON THE STATUTE OF LIMITATIONS.

I THINK THAT YOU ARE PRECISELY CORRECT. WHAT THE ISSUE, THE LINCOLN LIFE CASE SAYS, THAT THE FILING IS ANNULITY, UNLESS IT IS EXCUSEABLE. THE NICHOLSON COURT THAT WAS FOLLOWED IN THE CASE THAT IS AN APPEAL BEFORE YOU NOW, AND I DON'T THINK THERE IS ANY LOGICAL BASIS FOR SUPPORTING THE HYPOTHESIS THAT A CASE CAN BE ANNULITY, BUT IT CAN BE RESUSCITATED BY FINDING EXCUSEABLE NEGLECT. IF IT IS ANNULITY, IT IS A NULLITY. IF IT IS ANNULITY, WHAT THE LINCOLN LIFE COURT DID WAS TAKE A LOOK AT THE RESULT AND SAY WE DON'T LIKE THE RESULT. THE STATUTE OF LIMITATIONS WILL RUN AND WE WILL BE OUT OF COURT, AND THAT IS A DRACONIAN RESULT, AND IN CONFRONTING THAT ISSUE, WE WILL FIND IT IS A NULLITY, BECAUSE THAT IS NEGLECT. IT IS FAIRLY SLOPPY JUDICIAL REASONING. THE NEXT COURT THAT WE TALK ABOUT IS THE SECOND DISTRICT, WHO WAS FOLLOWED IN THIS CASE BY THE FIFTH DISTRICT, AND THEY SAY, QUITE LOGICALLY, THAT IF THE PLEADING IS FILED BY A NONFLORIDA ATTORNEY, THAT PLEADING IS A NULLITY. THAT IS A BRIGHT-LINE. UNFORTUNATELY IT IS A BRIGHT-LINE THAT IS TOTALLY INCONSISTENT WITH THIS COURT'S LONG-EXISTING POLICY OF DECIDING CASES ON THEIR MERITS AND GIVING A CHANCE, AN OPPORTUNITY FOR THE LITIGANTS TO GO TO COURTS ON THE MERITS.

ARE YOU SAYING THERE SHOULD BE TWO POSSIBILITIES WE LOOK AT, EITHER, ONE, IT IS A NULLITY, OR THE OTHER IS IT IS DEFECTIVE AND IT CAN BE CURED. IS THAT THE TWO WAYS TO LOOK AT IT?

THERE CAN BE THREE. ONE IS THE WAY YOU YOU ANNUNCIATEED -- THAT IS THE ONE THAT YOU ANNUNCIATED, AND THAT IS THE DEFECTIVE CURE, THAN IS THE STEINBERG CASE, THIRD DISTRICT.

IS THE SAME RULE, SHOULD WE BE APPLYING THE SAME RULE TO WHETHER A PLEADING IS FILED ON BEHALF OF A CORPORATION, BY A NONATTORNEY, AS WHEN IT IS FIDO BEHALF OF A CLIENT, WHERE THE ATTORNEY IS ESSENTIALLY NOT A TORN LICENSED IN FLORIDA? SHOULD IT BE THE SAME RULE FOR CORPORATIONS? BECAUSE THAT HAPPENS. THERE ARE MANY CASES, I SAW THE FOURTH DISTRICT, WHERE CORPORATIONS EITHER JUST ERRONEOUSLY FILED SOMETHING ON THEIR BEHALF, AND I THINK THAT IS WHERE THE FOURTH DISTRICT'S CASES CAME FROM, TO SAY IT IS DEFECTIVE THAT CAN BE CAPABLE OF CURE, AS OPPOSED TO SIMPLY BEING A NULLITY.

I THINK THAT IS EXACTLY RIGHT, AND MY IMPRESSION IS THAT THE COURTS HAVE FOLLOWED THE SAME LINE. WHAT THEY ARE SAYING IS AN UNAUTHORIZED FILING IS AN UNAUTHORIZED FILING.

WHY SHOULD IT BE THE SAME RULE, WHERE YOU HAVE GOT AN ATTORNEY, WHO, IF IT IS NOT A QUESTION -- EITHER HE IS GUILTY OF MALPRACTICE, FOR NOT PROPERLY INVESTIGATING THE FACT THAT HE HAS GOT TO FILE A -- A FLORIDA ATTORNEY HAS GOT TO BE ON THE PLEADING. WHY SHOULD IT BE THE SAME FOR LAWYERS AS IT IS FOR A CORPORATION?

I THINK THE OPPORTUNITY TO FILE A MALPRACTICE CASE IS THE SAME COLD COMFORT OF THE CLIENT, AS THE IMPLICATIONS WOULD BE FOR A CORPORATE STOCKHOLDER. FOR EXAMPLE ONE OF THE REASONS, ONE OF LOGICAL REASONS FOR NOT LETTING A CORPORATE OFFICER FILE, IN ADDITION TO THE FACT THAT THAT CORPORATE OFFICER WON'T BE -- LEARN IT IN -- WON'T BE LEARNED IN THE LAW, IS THE WHOLE PURPOSE THAT THE SHAREHOLDERS, THEMSELVES ARE PREJUDICED OR INJURED BY THE FAILURE OF THE CORPORATE OFFICER TO BE AN ATTORNEY. BY THE SAME TOKEN, AND I GUESS WHAT I AM SAYING, JUDGE, YOUR HONOR, IS THAT WHAT IS HAPPENING HERE, IF THE DECISION OF THE FIFTH DISTRICT THAT IS UNDER CONSIDERATION, FIFTH DISTRICT, WHICH IS UNDER CONSIDERATION HERE, TODAY, IF THAT IS PERMITED TO STAND, WHAT HAPPENS IS THAT, INSTEAD OF WHAT IS THE PURPOSE TO BE SERVED HERE, WE WANT TO STOP UNAUTHORIZED PRACTICE OF LAW. THAT IS OUR MISSION. THAT IS THE MISSION STATEMENT, AND THAT IS THE PURPOSE OF SAYING THAT THESE ARE A NULLITY. WHAT HAPPENS? WHO IS PUNISHED BY THAT? WHO IS PUNISHED IS THE HAPLESS CLIENT. NOW THE HAPLESS CLIENT GETS BEAT UP BY BOTH ASPECTS OF THE LEGAL SYSTEM, BY THE BAR ON THE ONE HAND, WHO INCOMPETENTLY FILED, WITHOUT PROPER AUTHORITY TO DO SO, AND ON THE OTHER HAND THE BENCH --

DON'T WE HAVE, IN THIS CASE, AND THAT IS THE REASON THAT I STARTED OUT WITH MY QUESTION ABOUT THE NOTICE TO INITIATE MALPRACTICE SUIT, IS THAT EVEN IF YOU FOLLOWED THE THIRD DISTRICT'S REASONING AND THE PROBLEM WAS -- COULD BE CURED BY LOCAL COUNSEL COMING IN THE CASE, YOU, STILL, HAVE GOT A DEFECTIVE NOTICE TO INITIATE, IF IT IS SIGNED BY AN OUT-OF-STATE LAWYER, DO YOU NOT? OR IS IT OKAY FOR AN OUT-OF-STATE LAWYER TO FILE A NOTICE OF INTENT TO LITIGATE, AND START THE -- BECAUSE THAT IS A JURISDICTIONAL MATTER, TO AN EXTENT, UNDER FLORIDA LAW.

YEAH. I DON'T KNOW THAT I HAVE SEEN THAT PARTICULAR ISSUE ADDRESSED, YOUR HONOR. MY IMPRESSION IS THAT THE DEFECT WOULD BE CURED RETROSPECTIVELY. THE OPINIONS THAT I HAVE SEEN, WITH REFERENCE TO MALPRACTICE, AND I HAVEN'T GOTTEN TO THE MERITS OF THAT ISSUE, OF COURSE, BUT MY IMPRESSION IS THAT THIS COURT, PARTICULARLY, HAS SAID THAT THE MALPRACTICE STATUTE AND PROCEDURES IS NOT INTENDED TO BE A MINEFIELD FOR THE UNWARY. IT IS NOT INTENDED TO DEPRIVE THE LITIGANT OF THE LITIGANT'S DAY IN COURT, SO THAT I THINK CONSISTENT WITH WHAT THIS COURT HAS PREVIOUSLY SAID, IT WOULD NOT BE UNFAIR TO SUGGEST THAT THE APPEARANCE OF LOCAL COUNSEL WOULD ADOPT ADOPT, TO THE EX -- WOULD ADOPT TO THE EXTENT THAT COMPLIANCE HAS BEEN MADE. WOULD ADOPT --

IS THAT ADDRESSED BELOW?

NO, YOUR HONOR, THAT WAS NEVER ADDRESSED. WHAT THE COURT -- BOTH -- NEITHER THE TRIAL COURT NOR THE FIFTH DISTRICT ADDRESSED THAT ISSUE AT ALL. THE ONLY ISSUE THAT WAS PRESERVED FOR APPEAL HERE, AND THAT IS WHY I AM SORRY, YOUR HONOR, I AM NOT PREPARED TO ADDRESS YOUR QUESTION.

I UNDERSTAND THAT.

BECAUSE IT NEVER CAME UP BELOW.

BECAUSE THEY FOUND THAT IT WAS DISMISSABLE BECAUSE OF THE --

THE FILING.

YEAH.

WAS IT RAISED AS A DEFENSE? WAS IT EVEN RAISED IN THE PLEADINGS, THE FAILURE TO COMPLY WITH THE STATUTORY NOTICE OF INTENT? WAS THAT EVEN RAISED BY THE DEFENDANT?

IT WAS -- WHAT HAPPENED WAS, AT THE TRIAL COURT LEVEL, THE DEFENDANTS RAISED THE IMPROPRIETY OF THE PRESUIT PROCEEDINGS AND THE FAILURE TO RESPOND TO DISCOVERY. THE TRIAL COURT REJECTED THOSE ARGUMENTS. WHEN WE APPEALED, WHAT THE TRIAL COURT SAID WAS YOU ARE FILING IT IS INEXCUSABLE. THERE IS NO EXCUSEABLE NEGLECT HERE, SO IT IS VOID AND NULL. THEN, WHEN WE TOOK OUR APPEAL, THE DEFENDANTS CROSS APPEALED AND SAID, EVEN IF YOU BELONG HERE, WHICH YOU DON'T, YOU NEVER COMPLIED AND YOU ARE OUT OF COURT. NOW, THEY NEVER SAID, IN ANYTHING THAT I READ, THAT YOU CAN'T LOOK AT THESE. WHAT THEY SAID WAS ALL YOUR INAPPROPRIATE OF YOUR APPEARANCE NOTWITHSTANDING, YOU DIDN'T FOLLOW THE RULES OF -- IN THE LOWER COURT, THE FIFTH DISTRICT SAID WE DON'T HAVE TO GET TO THAT. ALL THAT PROVES IS THAT YOU OUGHT TO BELIESENSED TO PRACTICE HERE, BECAUSE OTHERWISE YOU WILL MESS UP. NOW, I THINK THAT IS PROBABLY BASED ON THE NUMBER OF FLORIDA LAWYERS THAT MESS UP IN THAT MINEFIELD, I THINK IT IS PROBABLY INAPPROPRIATE TO SUGGEST THAT THAT IS INDIGENOUS TO FOREIGN COUNSEL. THAT WHOLE MALPRACTICE THING THAT WAS SUPPOSED TO BECOME SUCH A, YOU KNOW, IS REALLY A MONUMENT TO GREAT LOBBYING BY THE LEGAL, BY THE MEDICAL PROFESSION, AND THE INSURANCE INDUSTRY. IT IS A MINEFIELD, AND IT REALLY IS, AND NOW IT IS A CLUB IN WHICH ONLY CERTAIN LAW FIRMS CAN PRACTICE, BUT THAT IS NOT IN FRONT OF THE COURT. WHAT IS IN FRONT IS THESTEIN BAUM DECISION, WHICH -- IS THE STEINBAUM DECISION, WHICH REALLY SPEAKS FOR ITSELF. IT IS THE REASON THAT I ASSUME THAT THIS CASE IS IN FRONT OF THIS COURT, AND WHAT STEINBAUM SAYS AND I SAY TO THIS COURT IS THAT WHAT WE NEED TO DO IS DISCIPLINE THE PEOPLE WHO ARE COMMITTING THE UNAUTHORIZED PRACTICE, NOT DISCIPLINE THE HAPLESS CLIENT, WHO HAS ALREADY BEEN BEAT UP. WHAT CAN YOU DO TO THE INAPPROPRIATE ATTORNEY? YOU CAN FOLLOW THROUGH ON WHAT THESE DISTINGUISHED ATTORNEYS SUGGESTED. YOU CAN DISQUALIFY THE ATTORNEY. THAT HITS THEM RIGHT IN THE POCKETBOOK. YOU CAN, AS AN ALTERNATIVE, IF THE BEHAVIOR IS SUFFICIENTLY EGREGIOUS, AS THEY POINT OUT IN THEIR PLEADING, YOU CAN CHARGE THAT ATTORNEY WITH A MISDEMEANOR.

I WANT TO ASK YOU, BECAUSE STEINBAUM IS A CORPORATION.

IT IS A CORPORATION CASE.

YOU ARE SAYING IT DOESN'T MATTER WHETHER IT IS A LAWYER BUT JUST NOT A LICENSED LAWYER, BUT WHOSE SR. PARTNER IS A FLORIDA LAWYER. THE SAME RULE IS WHETHER IT IS FILED BY THAT LAWYER, BY A CORPORATION OR JUST IF YOU WANT TO, ON THE STREET, WENT OUT ON THE STREET AND GOT A PERSON ON THE STREET TO SIGN THE PLEADING, THAT WE SHOULD CONSIDER ALL OF THOSE SITUATIONS, THE SAME WAY? THAT IS THAT THEY ARE JUST DEFECTIVE, NOT NULLITY? NO MATTER WHO IN THE WORLD SIGNED IT?

I BELIEVE THAT MY POSITION ON THAT ISSUE WOULD BE ABSOLUTELY THAT THE IMPOSITION OF PENALTIES OUGHT TO BE ON THE UNAUTHORIZED PRACTITIONER NOT ON THE CLIENT, AND THAT IS THE SAME IF IT IS A CORPORATE OFFICER, WHO IS GOING TO DO GREAT DAMAGE TO THE SHAREHOLDERS.

WHAT IF I WAS THE CLIENT AND I JUST WENT OUT AND I KNEW SOMEBODY. I JUST KNEW I HAD TO FILE MY COMPLAINT. I COULDN'T FIND A LAWYER TO DO IT. DIDN'T WANT TO SIGN IT, MYSELF, AND I JUST GOT SOMEBODY, WOULD THERE, AT SOME POINT, WOULD IT MATTER? OH, SURE. I THINK, OF COURSE, IF YOU GET TO AN EXTREME ENOUGH EXAMPLE, IT IS ABSOLUTELY APPLICABLE. I THINK THAT COULD HAPPEN, BUT THERE IS NOTHING IN THE FACTS OF ANY OF THE CASES THAT WE HAVE RELIED ON, HERE, TO HAVE ANY CLIENT WHO HAS DELIBERATELY STEPPED INTO -- HAS DONE THAT, AND WHAT HAPPENS IS THE TREATMENT IS ALMOST THE SAME. THIS COURT HAS ENTERTAINED CASES IN WHICH PEOPLE WANT TO WRITE ALSO, BECAUSE THEY -- WRITE WILLS, BECAUSE THEY THINK THEY HATE LAWYERS, AND THAT HAPPENS. THE SAME IS TRUE, AND WHAT DO WE DO? WE ENJOIN THEM AND WE HOLD THEM IN CONSENT -- IN CONTEMPT, IF THEY WANT TO DO SUCH THINGS.

IF YOU WANT TO RESERVE SOME OF YOUR TIME, YOU MAY.

I DO. THANK YOU SO MUCH, YOUR HONOR.

THANK YOU. YOU MAY PROCEED.

MAY IT PLEASE THE COURT.

YES.

MY NAME IS RAFAEL E. MARTINEZ, PRACTICE IN ORLANDO, FLORIDA. I AM SPEAKING ON BEHALF OF THE DEFENDANTS. WE WOULD SUBMIT, YOUR HONOR, THAT THE FIFTH DCA PIN OPINION SHOULD BE AFFIRMED. -- DCA OPINION SHOULD BE AFFIRMED. WE WOULD SUBMIT THAT A COMPLAINT SIGNED BY ATTORNEY NOT AUTHORIZED TO PRACTICE IN FLORIDA CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW, RENDERING THE PUBLIC POLICY VOID.

LET'S GET THE TIMING DOWN HERE. MY RECORD, IT APPEARS THAT THERE WAS A MOTION TO DISQUALIFY FILED IN NOVEMBER. WOULD THAT BE A FAIR STATEMENT?

YES, SIR.

AND IF WE APPLY THE MEDICAL MALPRACTICE STATUTES TO IT, WE KNOW THAT THE INCIDENT -- THAT THE INCIDENT OCCURRED IN OCTOBER. YOU HAVE THE INTENT. THE STATUTE RUNS UNTIL JANUARY. IS THAT A FAIR STATEMENT?

YES.

AND AT THAT TIME? POINT IN TIME THIS MOTION TO QUALIFY WAS -- AND AT SOME POINT IN TIME THIS MOTION TO DISQUALIFY --

NO OBJECTION FROM COUNSEL.

IT WAS TRANSFORMED INTO A MOTION TO DISMISS. WAS THAT AFTER THE STATUTE HAD RUN?

CORRECT. YOUR HONOR, THE SUBJECT OF THE STATUTE OF LIMITATIONS IS IN DEBATE.

JUST TELL ME WHEN IT OCCURRED, THEN, SO I CAN CALCULATE THAT, MYSELF. DID IT OCCUR AFTER JANUARY OF '98, OF '98?

THE MOTION TO DISQUALIFY COUNSEL WAS FILED WELL BEFORE THAT.

IN NOVEMBER.

I UNDERSTAND.

THE CONVERSION OF THE MOTION WAS DONE IN JANUARY.

IN JANUARY OF '98?

ON JANUARY 29 OF 1998. THE CHRONOLOGY, YOUR HONOR, IS ON FEBRUARY 6 OF '97, NOTICE OF INTENT WAS FILED. THE 90 DAYS, THEN, PROCEEDED, AND AS THE COURT KNOWS FROM THE PLEADINGS, SEVERAL TIMES COUNSEL WAS TOLD THAT HE WAS NOT COMPLYING WITH FLORIDA PRESUIT REQUIREMENTS, THAT HE HAD NOT PROVIDED US INFORMATION THAT WE REQUIRED, AND IN SEVERAL LETTERS BY VARIOUS DEFENDANTS, HE WAS ALERT TO DO THAT. NOTHING WAS DONE. HE HAD NOT FILED AN AFFIDAVIT.

I UNDERSTAND THAT. I AM TRYING TO GET TO THE POINT OF WHETHER THIS IS I GOT YOU, BECAUSE THE STATUTE HAS RUN, AND I AM NOW TRYING TO CONVERT ON A MOTION TO DISMISS BECAUSE IT IS A NULLITY. IT HAS ONLY TURNED INTO THAT AFTER THE STATUTE RUNS, AND THAT IS WHAT I AM TRYING TO KALING CHRAT.

IT WASN'T A -- TO CALCULATE.

IT WASN'T A "I GOT YOU", BECAUSE THE ISSUE DEALT WITH THE ISSUES AT THE HEARING.

SO IT WASN'T A TRANSFORMATION.

IT WASN'T A "I GOT YOU" TYPE SITUATION. THEY WERE WELL AWARE.

THE MOTION TO DISQUALIFY DIDN'T ASK FOR DISMISSAL OF THE COMPLAINT. IT ASKED FOR A LOCAL LAWYER TO BE ON, WHICH IS WHAT THEY EVENTUALLY WENT AND DID, BEFORE THE HEARING, WHERE, THEN, THEREAFTER, THIS WAS TURNED INTO NOW WE WANT DISMISSAL OF THE COMPLAINT, AND THE RELIEF WASN'T ASKED FOR IN A TIMELY WAY, SO THAT I THINK WHAT JUSTICE LEWIS HAS ASKED, SO THAT A LAWYER COULD HAVE FILED A COMPLAINT THAT WAS SIGNED BY A FLORIDA LAWYER, BEFORE THE STATUTE OF LIMITATIONS WOULD RUN.

IN OUR ANSWER TO THAT, ON NOVEMBER 7, WHEN WE FILED THE MOTION ADVISING COUNSEL THAT FLORIDA LAW REQUIRED LOCAL COUNSEL --

YOU DIDN'T ASK FOR DISMISSAL OF THE COMPLAINT. YOU ASKED THAT THE LAWYER BE DISQUALIFIED, AND SO THEY SUSPENDED BY GETTING A LOCAL COUNSEL ON IT.

I HAVE TO CONFESS THAT I DON'T HAVE THE PLEADING IN FRONT OF ME RIGHT NOW, TO QUOTE WHAT WE SAID IN THAT PLEADING, BUT I THINK WE DID MORE THAN JUST SAY THIS IS AN INAPPROPRIATE COUNSEL. I THINK WE SAID IT WAS AN IMPROPER ACTION ON THEIR PART.

WAS IT A MOTION TO DISQUALIFY OR WASN'T IT A MOTION TO DISQUALIFY?

IT WAS A MOTION TO DISQUALIFY COUNSEL, ON THE GROUNDS THAT HE WAS NOT FLORIDA COUNSEL.

IT WASN'T A MOTION TO DISMISS.

NO.

BEFORE THE MOTION TO DISMISS WAS FILED, LOCAL COUNSEL APPEARED?

LOCAL COUNSEL APPEARED AT THE HEARING, WHEN THE MOTION WAS CONVERTED FROM A MOTION TO STRIKE TO A MOTION TO DISQUALIFY.

YOU UNDERSTAND THE IMPORT OF THE QUESTION.

SURE.

THAT IS THAT, IF YOU FILE A MOTION TO DISQUALIFY, WITHOUT SAYING WE WANT THIS CASE DISMISSED, THAT THERE IS A LACK, AT LEAST, FOR THE FAIRNESS ELEMENT --

YES, YOUR HONOR.

OF NOTIFYING THE OPPOSITION, HEY, WE ARE ASKING THAT THIS BE DISMISSED. OKAY. BECAUSE AN UNQUALIFIED LAWYER SIGNED THE PLEADING. AS OPPOSED TO BEING DISQUALIFIED.

WE HAD FILED MOTION TO SAY DISMISS, ON THE BASIS THAT IT HAD NOT COMPLIED WITH FLORIDA STATUTE. MOTION TO DISMISS, ON THE BASIS --

NOT ON THE BASIS OF THIS ISSUE.

NOT ON THE BASIS OF IMPROPER COUNSEL.

THE BASIS OF THE MOTION TO DISMISS WAS THE FAILURE TO FILE MEDICAL MALPRACTICE.

THEY DID NOT FILE AN AFFIDAVIT.

I UNDERSTAND. WE ARE JUST, RIGHT NOW, FOCUSING ON THIS SINGLE ISSUE. BY THE TIME THE MOTION TO DISMISS WAS FILED, THOUGH, LOCAL COUNSEL HAD APPEARED. IS THAT CORRECT?

BY THE TIME THE MOTION WAS CONVERTED, LOCAL COUNSEL HAD APPEARED.

WHY WASN'T IT A BETTER POLICY RESULT THAT YOU RAISED THE ISSUE OF THERE BEING NO FLORIDA LAWYER. THEY WENT AND GOT LOCAL COUNSEL. LOCAL COUNSEL CAME IN AND FILED AN APPEARANCE, AND THAT CURED THE DEFECT. WHY ISN'T THAT THE BETTER POLICY, AND LET THE MATTER GO AHEAD AND BE DETERMINED ON ITS MERITS?

YOUR HONOR, I THINK THE COURT HAS A DUTY TO PROTECT THE CITIZENS OF FLORIDA FROM THE PRACTICE OF UNETHICAL, IRRESPONSIBLE, OR INCOMPETENT COUNSEL. A WHY WOULD THAT PROCEDURE NOT ACCOMPLISH THAT?

IT WOULD ENCOURAGE, YOUR HONOR, OUTSIDE, LAWYERS FROM OTHER STATES TO COME IN AND FILE -- THROW A PLEADING AT US AND NOT COMPLY WITH THE UNIQUE STATUTE IN FLORIDA, SUCH AS A PRESUIT STATUTE, NOT FILE AN AFFIDAVIT BY AN EXPERT.

ARE WE DEALING WITH A PRESUIT STATUTE HERE?

ONLY AS MUCH AS, YOUR HONOR, THE FIFTH DCA, IN ITS OPINION, SAID THAT THERE FOR THE CROSS APPEAL CONCERNING THE TOTAL LACK OF PLAINTIFFS COMPLAINED WITH THE STATUTORY PRESUIT SCREENING REQUIRED, EVEN AFTER THE SECOND NOTICE TO DO SO IS OF INTEREST ONLY, BECAUSE IT POINTS OUT THE WISDOM OF RULE 2.060, SO MY POINT IS THAT RULE HAS WISDOM IN THAT IT KEEPS THE CITIZENS FROM FLORIDA PROTECTED FROM IRRESPONSIBLE, UNETHICAL, OR INCOMPETENT LAWYERS.

BUT ISN'T THE PROBLEM, HERE, THAT THIS COMPLAINT AND THIS ACTION WAS NOT ATTACKED ON THE BASIS THAT YOU HAD AN UNAUTHORIZED LAWYER THAT TOOK PART IN THE PRESUIT SCREENING? YOU WERE ONLY ATTACKING THIS ON THE BASIS THAT YOU HAD AN UNAUTHORIZED LAWYER IN THE LAWSUIT.

YES, YOUR HONOR. WHAT WE DID IS WE PUT THE LAWYER ON NOTICE THAT FLORIDA LAW REQUIRED HIM TO BE A FLORIDA LAWYER. TO BE -- TO USE A FLORIDA LAWYER TO FILE. THAT WAS DONE IN NOVEMBER. COUNSEL NEVER APPEARED IN THIS CASE FOR THREE MORE MONTHS, UNTIL THE HEARING ON JANUARY 29, AND I GUESS THAT YOU GOT YOU THEORY, YOUR HONOR, I WOULD SUBMIT THAT WE PUT THEM ON NOTICE THAT WE HAVE AN UNIQUE SITUATION IN FLORIDA, AS MANY OTHER STATES DO. YOU HAVE GOT TO BE A FLORIDA LAWYER TO PRACTICE HERE.

IF YOU DON'T, THEN YOU ARE GOING TO BE DISQUALIFIED.

IF YOU DON'T, YOU ARE GOING TO BE DISQUALIFIED, BUT WE ARE PUTTING HIM ON NOTICE, AS AN ATTORNEY, TO RESEARCH FLORIDA LAW AND DISCOVERED THAT IT GOES BEYOND THAT, BECAUSE THE NICHOLS CASE INDICATES --

SURELY SOMEBODY AT YOUR OFFICE MUST BE THOUGHT THAT THIS WAS THE APPROPRIATE ROUTE TO GO, THAT IS TO SEEK DISQUALIFICATION AND NOT SEEK DISMISSAL, OR I ASSUME THAT THEY WOULD HAVE SOUGHT DISMISSAL AT THE OUTSET.

YOUR HONOR, THE --

DID SOMEBODY HAVE TO MAKE THAT DECISION?

THE MOTION --

AND THE LAWYERS IN YOUR OFFICE ARE SINCE CITING ALL THOSE CASES AND EVERYTHING, SO WHY DIDN'T THEY FILE THE MOTION TO DISMISS AT THE OUTSET?

YOUR HONOR, BECAUSE WE WANTED TO PUT THEM ON NOTICE THAT THERE WAS A DEFECTIVE PLEADING FILED.

WHY NOT FILE A MOTION TO DISMISS? IF YOU WOULD RESEARCH THE LAW AND DISCOVER THAT THE APPROPRIATE THING TO DO WAS TO HAVE THIS SMITH, BECAUSE IT WAS A NULLITY AT THE OUTSET, AND THAT IS THE POSITION THAT YOU WERE GOING TO TAKE, AND OBVIOUSLY YOU ARE ON NOTICE OF ALL THAT LAW, THEN WHY DIDN'T YOU SEEK --

I AM NOT SURE THAT WE WERE AWARE OF ALL THAT LAW, AT THE TIME THAT THE PLEADING WAS FILED. WHEN THE PLEADING WAS FILED.

I THOUGHT YOU SAID THAT THAT IS THE LAW THAT YOU PUT THE OTHER SIDE ON NOTICE OF, WHEN YOU FILED THE MOTION TO DISQUALIFY.

IN THE REVERSAL, YOUR HONOR, IF SOMEONE WERE TO CHALLENGE MY APPEARANCE IN A CASE, I THINK I WOULD GO TO THAT STATE, IF I WAS FILING IN THAT STATE, AND I WOULD --

DO YOU AGREE THAT THE ONLY RELIEF THAT YOU WERE SEEKING, UP UNTIL THE TIME THAT SUBSTITUTE COUNSEL APPEARED HERE, WAS A DISQUALIFICATION OF COUNSEL?

THE MOTION SAID RESPECTFULLY BECAUSE THE COURT ENTERED AN ORDER DISQUALIFYING PLAINTIFF'S COUNSEL AND TO OTHER SUCH FURTHER RELIEF AS THE COURT DEEMS JUST AND EQUITABLE.

YOU ARE NOT SUGGESTING THAT THE INCLUSION OF THAT BOILERPLATE LANGUAGE WAS WHERE YOU HID YOUR DESIRE TO DISMISS THE CASE. THAT SURELY WOULD BE ABOUT AS MUCH AS OF A "GOT YOU" AS COULD BE PLED IN THE STATE.

YOUR HONOR, WE, AT THE TIME, KNEW THAT THAT WASN'T PROPER FOR A NONFLORIDA LAWYER WHO HAD NOT COMPLIED WITH THE PRESUIT.

IS THAT WHAT YOU ARE SUGGESTING? ARE YOU SUGGESTING THAT YOU RESERVED THE RIGHT TO SEEK A DISMISSAL, BECAUSE OF THE INCLUSION OF THAT BOILERPLATE LANGUAGE?

YOUR HONOR, YES.

OKAY. SO YOU ARE SAYING THAT YOU HAD A "GOT YOU" THERE?

NO, YOUR HONOR. AT THE TIME I WASN'T SURE --

WHAT WOULD YOU CALL IT? IF YOU WANT TO DISMISS SOMETHING, DON'T YOU ORDINARILY ASK FOR IT TO BE DISMISSED?

WE HAD NOT RESEARCHED THE POINT WELL ENOUGH, YOUR HONOR, TO KNOW THE CASES THAT I KNOW TODAY.

WHEN WAS IT THAT YOU HAD RESEARCHED IT ENOUGH? THE DAY WHEN YOU ASKED FOR THE DISMISSAL?

WHEN I CAREFULLY READ ALL OF THE CASE LAW TO PREPARE FOR THAT HEARING, I REALIZED THAT THE MORE PROPER FILING WOULD BE TO CONVERT THAT MOTION TO A MOTION TO DISMISS, ON THE BASIS OF THE GELLUP CASE, WHICH THE PREDECESSOR TO THE STEINBAUM CASE.

HAD THIS CASE GONE THROUGH PRESUIT DISCOVERY? HAD THERE BEEN STATEMENTS TAKEN AT THE HOSPITAL? I KNOW MR. HALL WAS INVOLVED.

THE CASE WENT THROUGH PRESUIT, BUT THERE WAS NEVER AN AFFIDAVIT FILED BY A DOCTOR, STATING THE PLAINTIFF'S POSITION.

WERE STATEMENTS TAKEN?

I DON'T BELIEVE SO. IT WAS ONE OF THOSE CASES WHERE WE KEPT WRITING THE LAWYER UP IN MICHIGAN, SAYING WE NEED RECORDS. WE NEED THIS. WE NEED THAT. AND NOTHING WAS COMING BACK. THE AFFIDAVIT WAS NEVER FILED. IN FACT, THE AFFIDAVIT THAT IS SUPPOSED TO BE FILED INITIALLY, WITH THE NOTICE OF INTENT, WAS NOT FILED, NOT THROUGH THE 90 DAYS, NOT THROUGH OUR DENIAL IN MAY, BUT IT WAS FILED IN AUGUST OR SIGNED IN AUGUST AND FILED WITH A COMPLAINT IN SEPTEMBER.

LET ME ASK YOU --

WHEN YOU FACTOR IN FLORIDA'S POLICY OF HAVING CASES HEARD ON THE MERITS, WHEN YOU STACK THAT UP AGAINST THE VERY TECHNICAL ARGUMENT THAT YOU MAKE, RELATIVE TO THE PLEADING BEING A NULLITY, ISN'T IT THE BETTER POLICY TO NOT HURT THE FLORIDA CITIZEN, WHO IS ULTIMATELY HURT BY YOUR RESULT? RATHER THAN THE LAWYER.

YOUR HONOR, MY POSITION --

ISN'T THAT A POLICY TO LET IT BE HEARD ON THE MERITS AND, IF YOU ARE PREJUDICED BY THAT, THEN LET THAT BE A PART OF THE MERITS HERING? ISN'T THAT THE -- HEARING? ISN'T THAT THE BETTER POLICY?

YOUR HONOR, I AGREE THAT WOULD BE A GOOD POLICY, IF IT DOES NOT CONFLICT WITH ANOTHER BETTER POLICY. IN THE CASE OF STEINBAUHM, THE WELCOME RULE SAYS THAT WE STATE ALL OF THE MERITS IN THE CASE, UNLESS THEY CAN PROVE A MORE COMPELLING POLICY.

THAT DOES NOT HURT THE FLORIDA CITIZEN.

TO THAT EFFECT, I WOULD SAY THAT FLORIDA CITIZEN, STILL, HAS RECOURSES LEFT. THEY HAVE FILED A CLAIM, AND THEY CAN ARGUE THAT THE STATUTE OF LIMITATIONS HASN'T RUN. NUMBER ONE. NUMBER TWO, THEY HAVE A RECOURSE AGAINST THEIR LAWYER, IF, IN FACT, HE WAS A NONCOMPLIANT, IRRESPONSIBLE LAWYER, IN FILING IMPERFECT PLEADINGS AND IN NOT COMPLYING WITH FLORIDA LAW, THEY HAVE A LEGAL RECOURSE OF MALPRACTICE, IF THEY WISH. BUT I WOULD CITE THE CASES OF SANDERS VERSUS YANKAS, AND IN THAT CASE IT DEALT WITH A CONTRACT, A CONTINGENCY-FEE CONTRACT, AND THE SUPREME COURT SAID PURSUING A PERSONAL INJURY OR A TORT CLAIM INVOLVES ENGAGING IN PROFESSIONAL ACTIVITY. SUCH PROFESSIONAL ACTIVITY FALSE WITHIN THE BOUNDARIES OF WHAT WE CAN REGULATE, AND THEN THE COURT SAID THERE ISN'T -- THE REASON FOR PROHIBITING THE PRACTICE OF LAW BY THOSE WHO HAVE NOT BEEN EXAMINED AND FOUND QUALIFIED TO PRACTICE IS OFTEN MISUNDERSTOOD. IT IS NOT DONE TO PROTECT THE MEMBERS OF THE LEGAL PROFESSION, EITHER IN CREATING OR MAINTAIN AGO MONOPOLY OR A CLOSED SHOP. IT IS DONE TO PROTECT THE PUBLIC FROM BEING ADVISED AND REPRESENTED IN LEGAL MATTERS BY UNQUALIFIED PERSONS, WHO ARE WHOM THE JUDICIAL DEFENDANT DEPARTMENT -- AND IT GOES ON TO SAY --

AND THAT, YOU CONTINUALLY USE THE TERMINOLOGY TO PROTECT THE PEOPLE BECAUSE OF THIS, AND I CANNOT UNDERSTAND YOUR ANSWER OR I DON'T -- HAVEN'T HEARD AN ANSWER THAT WOULD SAY WHY THE PROCEDURE OF ALLOWING THE CORRECTION WOULD NOT PROTECT THE CLIENT, IF THEY ARE PUT ON NOTICE THAT THIS PERSON IS NOT A FLORIDA LAWYER, AND THEN GIVEN THE OPPORTUNITY TO CORRECT THAT, WHY WOULD THAT THE NOT -- WHY WOULD THAT NOT PROTECT --

BECAUSE I THINK IT GOES TO THE CONCEPT, YOUR HONOR, OF ALLOWING INDIVIDUALS WHO DO NOT KNOW FLORIDA LAW TO PRACTICE IN FLORIDA.

BUT YOU ARE STOPPING THEM. YOU ARE SAYING YOU CANNOT PRACTICE IN FLORIDA, AND UNLESS SOMEONE COMES IN THAT WILL TAKE UP THIS CAUSE THAT IS A FLORIDA LAWYER, YOU ARE OUT.

BASICALLY, YOUR HONOR, WHAT WE ARE SAYING TO THE WORLD, OUT THERE, IS COME ON IN AND PRACTICE IN FLORIDA DURING THE PRESUIT. DON'T COMPLY WITH OUR LAW. BECAUSE THE DATE THAT A MOTION OR THE DATE THAT THE COMPLAINT IS FILED, THAT COMPLAINT IS GOOD, AND IF YOU ARE CAUGHT AND THE OTHER SIDE COMPLAINS ABOUT IT, THEN WE WILL ALLOW YOU TO GO AHEAD AND CORRECT THAT PROBLEM, AND SO THEREFORE WE ARE GOING TO HAVE A FLOOD OF OUT-OF-STATE LAWYERS WHO DON'T UNDERSTAND THE UNIQUE FLORIDA LAW, PRACTICING IN OUR STATE.

YOU DON'T THINK THE FLORIDA LAWYERS ARE GOING TO -- ARE GOING TO LET THIS FLOOD COME IN. DON'T YOU THINK THEY ARE GOING TO PUT THE FINGER IN THE DIKE?

YOUR HONOR, I THINK ONE OF THE GOOD WAYS TO PUT A FINGER IN THE DIKE IS TO SAY, IF A NONFLORIDA LAWYER IS PRACTICING IN FLORIDA, BY FILING PLEADINGS, THAT PLEADING, UNFORTUNATELY, IS GOING TO BE A NULLITY. BECAUSE --

I JUST WANT TO MAKE SURE. IF WE ADOPT THE FIFTH DISTRICT, DO WE, THEN, HAVE TO DISAPPROVE OF STEINBAUM AND SAY THE SAME RULES APPLY FOR CORPORATIONS?

I THINK THE COURT CAN MAKE A DISTINCTION THAT IT MAY NOT APPLY TO CORPORATIONS, BECAUSE CORPORATIONS ARE NOT INDIVIDUAL. IN THIS CASE, THIS LAWYER HAD THREE CHOICES. HE COULD HAVE BEEN ADMITTED PRO WHO CAN ADVICE. HE COULD HAVE HAD HIS PARTNER DOWN THE HALL SIGN THE COMPLAINT, OR HE COULD HAVE HAD HIS CLIENT SIGN THE COMPLAINT.

AN EXCEPTION OF ONLY WHERE THE COMPLAINT IS FILED BY A NONFLORIDA LAWYER, IF IT IS FILED BY A CORPORATION ON BEHALF OF ITSELF, THAT IS GOING TO BE CURED, BUT BECAUSE WE WANT TO EFFECT A PUBLIC POLICY OF PREVENTING UNAUTHORIZED PRACTICE OF LAW, WE SHOULD TAKE THE HARSHES PENALTY, WHICH IS DISMISSAL OF THE COMPLAINT.

I AGREE WITH THAT POSITION, BECAUSE I THINK A LAY PERSON --

I AM NOT SAYING I AGREE. I AM SAYING IS THAT YOUR POSITION?

THAT IS A POSITION I CAN AGREE WITH, BECAUSE A CORPORATE INDIVIDUAL SIGN AGO COMPLAINT AND MAKING A MISTAKE IS A LOT DIFFERENT THAN A LAWYER FROM ANOTHER STATE, WHO HAS A HIGHER BURDEN OF KNOWLEDGE, AND SHOULD KNOW THE LAW OR AT LEAST SHOULD EXPLORE THE LAW OF FLORIDA BEFORE HE COMES IN AND KNOW THAT A PLEADING THAT HE FILES MAY, IN FACT, BE A NULLITY.

WAIT A MINUTE. JUSTICE QUINCE HAD A QUESTION.

SO WHAT HAPPENS, IN A SITUATION WHERE THE PLEADING IS FILED BY A PERSON WHO IS JUST ENGAGED IN THE UNAUTHORIZED PRACTICE OF LAW? THEY HAVE A, YOU KNOW, A SHOP THAT SAYS WE HELP WITH LOCAL FORMS OR SOMETHING, AND THEY FILE A PLEADING. WHAT DO YOU DO IN THOSE SITUATIONS? WHICH ARE THOSE RULES ARE GOING TO APPLY? THIS IS AN ORDINARY CITIZEN, NOT A MEMBER OF THE FLORIDA BAR.

AND THAT IS WHERE THE IDEA THAT PUBLIC POLICY OUGHT TO BE PRESERVED, AND I THINK IN THAT CASE, THAT PLEADING FILED BY A NONFLORIDA -- BY A NONLAWYER, BY AN INDIVIDUAL DISOBEDIENT PARTY, OUGHT TO BE STRICKEN, I THINK.

AND THE LAWYER IN THIS CASE COULD HAVE, IN FACT, FILED A MOTION FOR PRO WHO CAN VJ -- FOR PRO HOC VY ADMISSION, COULD HAVE FILED CONTEMPORANEOUS WITH THE COMPLAINT?

OR WHEN WE PUT HIM ON NOTICE, ON NOVEMBER 5, THAT HE WAS PROHIBITED FROM FILING ANY PLEADINGS IN FLORIDA. AT THAT POINT HE COULD HAVE FILED PRO HOC ADVICE.

AT THE POINT WHEN THIS LAWYER FILED HIS NOTICE, WHEN WAS THAT NOTICE FILED?

NOTICE OF INTENT, FEBRUARY 6, EIGHT MONTHS BEFORE THE COMPLAINT.

AT ANY TIME DURING THAT PERIOD OF TIME, DID YOU PUT HIM ON NOTICE THAT HE NEEDED TO BE A FLORIDA LAWYER, IN ORDER TO FILE THE NOTICE?

WE PUT HIM ON NOTICE ON NOVEMBER 5. WHICH WAS BEFORE THE JANUARY 29 HEARING. NOTHING WAS DONE, UNTIL THE JANUARY --

UNLESS THE JUDGE WOULD GRANT THE MOTION TO APPEAR PRO HOC VJ, DOES THAT CHANGE AN INCOMPETENT LAWYER INTO A COMPETENT LAWYER?

NO. I THINK AT THAT POINT THE SUPREME COURT AND THE FLORIDA BAR CAN LAY A GLOVE ON THIS LAWYER, BECAUSE SOMEONE HAS SIGNED ON HIS BEHALF, SO THERE IS A FLORIDA LAWYER, NOW, ON THE HOOK, AS WELL AS THAT LAWYER, SO I THINK THAT IS THE BIG DIFFERENCE, THAT THERE IS A FLORIDA LAWYER, AND IF I COULD JUST QUOTE THE FLORIDA BAR VERSUS MOSES, AT 380 SO.2D 412, IT SAYS THE SINGLE MOST IMPORTANT CONCERN IN THE COURT'S DEFINING AND REGULATING THE PRACTICE OF LAW, WHICH GOES TO THAT QUESTION, JUSTICE QUINCE, IS THE PROTECTION OF THE PUBLIC FROM INCOMPETENT, UNETHICAL AND IRRESPONSIBLE REPRESENTATION. IT IS, FURTHER, THE PURPOSE OF THE COURT TO MAINTAIN STRICT STANDARDS OF COMPETENCE AND ETHICAL RESPONSIBILITY, TO BE REACHED PRIOR TO THE ADMISSION OF FLORIDA BAR. THEREFORE IT IS INHERENT, IN OUR SUPERVISION OTHER POWER, TO PROHIBIT UNAUTHORIZED PRACTICE. WHAT I AM SUGGESTING TO YOU THAT WHAT OCCURRED IN THIS CASE WAS THE UNAUTHORIZED PRACTICE OF LAW, AND WE SHOULD CONSIDER THAT PLEADING, AS IN THE NICHOLS CASE, BACK IN 1966, THE NICHOLS DECISION OF THE SECOND DCA, SAID THAT IS A NULLITY, AND FROM THE VERY BEGINNING, IT IS A NULLITY.

AGREE WITH THAT. -- IT IS A NULLITY. I AGREE WITH THAT.

SO IN THIS CASE IT IS A NULLITY.

IN THIS CASE WE HAVE A LAWYER THAT IS SUSPENDED FOR SIX MONTHS, MARGINAL AT BEST, AND THE FAMILY IS DEVASTATED, AND HE WANTS THIS CASE, AND HE FILES IT, THE MALPRACTICE CASE, WHILE HE IS SUSPENDED, WOULD THAT BE THE RESULT? IF HE FILED IT WHILE IT WAS A NULLITY?

THAT WOULD BE THE RESULT, YOUR HONOR, AND I THINK WE SHOULD, ALSO, POINT OUT THE RULE WHICH SAYS, 2.6060, WHICH SAYS IT MAY BE STRICKEN AND THE -- 2.060, WHICH SAYS IT MAY BE STRICKEN IF THE ACTION OR THE PLEADING OR OTHER PAPER HAD NOT BEEN SERVED. THAT IS UP UNFORTUNATELY -- THAT IS UNFORTUNATELY WHAT THE LEGISLATURE TOLD US AND THAT IS WHAT WE HAVE TO LIVE WITH. IF THE RULE WERE CHANGED, UNDER A DIFFERENT SCENARIO, THAT WOULD BE THE LAW, BUT IN MY CASE, THAT ISN'T THE CASE.

VERY BRIEFLY.

MY TIME IS ABOUT UP. I WOULD CALL TO THE COURT'S ATTENTION THAT THE DEFENDANT'S MOTION TO DISQUALIFY IS AN ONE AND A QUARTER PAGE DOCUMENT, WITH THREE PARAGRAPHS, AND APPARENTLY MR. McHENRY DID NOT RESEARCH THE ISSUE ANY BETTER THAN THEY DID. HE RESPONDED BY SAYING MY SR. PARTNER IS A FLORIDA LAWYER AND I SIGNED FOR HIM. I WOULD, ALSO, POINT OUT THAT THE SUPPLEMENTAL AUTHORITY SIGNED AND GIVEN TO THE COURT BY THE DEFENDANTS, REALLY, SHOOTS THEM IN THE FOOT. IT IS ANOTHER --

DON'T WE ALL KNOW THAT -- I MEAN, IN ORDER TO PRACTICE IN A PARTICULAR STATE, WE NEED TO BE A LAWYER IN THAT PARTICULAR STATE. WE NEED TO BE ADMITTED TO THE BAR. SO WHY SHOULD WE ALLOW PEOPLE TO COME IN AND FILE PLEADINGS, KNOWING THAT THEY ARE NOT MEMBERS OF THE FLORIDA BAR?

MR. McHENRY'S ALIBI, AND WHAT HE THOUGHT WAS HE HAVE KARBS, YOUR HONOR -- WAS EFFICICIOUS, YOUR HONOR, WAS MY SR. PARTNER, AND --

HE DIDN'T PUT THE SENIOR PARTNER-HE ON -- THE SENIOR PARTNER ON THERE, DID HE?

HE PUT FIEGER AND FIEGER.

WHAT IS THE SENIOR PARTER?

FIEGER AND FIEGER.

HE DIDN'T PUT GEOFFREY FIEGER ON THERE, DID HE?

NO. JUST FIEGER AND FIEGER.

DID HE PUT A BARNUM ON THERE?

I WILL BET YOU NOT. I WILL BET YOU THERE IS NO FLORIDA BARNUM ON THERE.

HIS CONDUCT IS INEXCUSABLE.

I WILL BET YOU. WHEN I WAS A SENIOR PARTNER OF THAT FIRM, THEY DIDN'T ACT LIKE. THAT.

THIS IS REALLY NOT AN EXCUSE FOR ACTING SOONER THAN THE FOUR MONTHS.

I AGREE. I THINK THAT CONDUCT --

IS THE RULE THAT YOU ARE SEEKING THAT THE COURT SHOULD, UPON THIS BEING -- ISSUE BEING RAISED, SHOULD GIVE A PERIOD OF TIME, 30 DAYS, IN WHICH TO CURE IT? OR THE CASE WILL BE DISMISSED?

THAT IS EXACTLY -- IN STEINBAUM, ONE OF THE CASES THAT THEY CITE TO DID EXACTLY THAT, AND SEVERAL OF THE CASES SAY THAT, THAT THE LOWER COURT WILL SAY TO YOU YOU ARE NOT HERE PROPERLY. YOU HAVE 15 DAYS, IF YOU ARE A CORPORATION. YOU HAVE 15 DAYS. IF YOU ARE REPRESENTED BY INAPPROPRIATE COUNSEL, YOU HAVE 30 DAYS. THAT IS HAPPENING ALL OVER THE PLACE. THERE IS AN ALR CITATION IN STEINBAUM. STEINBAUM ADDRESSES, IS REALLY WRITTEN WITH THE IDEA IN MIND THAT SOMEBODY WAS BRING IT UP HERE AND GIVE IT TO YOU AND GIVES US THE ISSUES THAT YOU HAVE RAISED MUCH MORE ELOQUENTLY THAN I HAVE, AND I BELIEVE THAT ITS RATIONALE IS COMPLETELY APPROPRIATE. WHAT YOU DO IS BEAT UP ON THE PEOPLE WHO ARE ENGAGED IN THE UNAUTHORIZED PRACTICE. YOU DON'T BEAT UP ON THEIR HAPLESS CLIENTS, AND IF YOU FIND A CLIENT WHO DELIBERATELY GOES TO THE LOCAL SHOEMAKER OR THE LOCAL BARBER, THEN THAT PERSON IS NOT ENTITLED TO EMPATHY, BUT NOT SO THE POOR SOUL WHO GETS BEAT UP BY HIS OWN LAWYER AND THEN GETS BEAT UP BY THE COURT.

THANK YOU. THANK YOU, COUNSEL. WE ARE GOING TO TAKE A 15-MINUTE RECESS. THE MARSHAL: PLEASE RISE.