Recently, a paralegal sent an email to the deputy chief judge. It was marked as a priority (!). The email said (essentially):
"Good morning Judge Langham, Mr. __________ and Mr. _________ are not available, so they have both asked me to find out why you closed this case as it is currently being handled by Judge __________ and on what authority did you close this? Please advise us at your earliest opportunity as there are a lot of pending issues in this matter. Thank you."
The message made me think of several points. First, is Rule 60Q6.108(1)(c). This is the "don't send letters" rule." It specifically addresses correspondence:
"(c) The following documents shall not be filed with the OJCC unless relevant to an issue to be heard and not more than 10 days but at least two days before the scheduled hearing: requests or notices to produce and objections or responses thereto, deposition transcripts, correspondence between counsel or parties, correspondence to the judge or the judge's staff, subpoenas and returns of service."
The rule is seemingly not permissive, but mandatory. Of course, the Court has concluded that the use of "shall" does not necessarily create a requirement.
In Brown v. Pumpian, 504 So.2d 481 (Fla. 1st DCA 1987) the Court explained that context is critical. "Shall" may mean "should." In the context of the statutory mandate regarding when trial shall be held, the Court concluded that is directory instead of mandatory. In the context of appointment of an expert medical advisor (EMA), the same word "shall" means that the judge must appoint an EMA. See Palm Springs General Hosp. v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997). That "language provides no support for the view that the statute is directory only." Thus, it is possible that the "shall not" in Rule 60Q6.108(1)(c) might be seen as directory rather than mandatory. But, even if it means "should not," the point remains attorneys should not send correspondence to the judge.
The second point that occurred to me is that the paralegal seemed to seek action by this Office. That is, the attorneys involved did not appreciate an outcome and sought another outcome. They appear to have sought relief. The seeking of relief in Florida workers' compensation litigation is pursuant to the Rules of Procedure for Workers' Compensation Adjudications, Rule 60Q6.115:
"Rule 60Q6.115(1): “Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested. The judge may treat any request for relief from an unrepresented party as a motion. All motions shall be in writing unless made on the record during a hearing and shall fully state the relief requested and the grounds relied upon. Any document referenced in any motion shall either have been filed prior to the motion or be attached to the motion."
“generic term for all types of benefits which an order or judgment of court can give a party to a lawsuit, including money award, injunction, return of property, property title, alimony and dozens of other possibilities."
It seems that the email might certainly be seen as seeking relief. And, quite simply, when seeking relief the appropriate vehicle is a motion. The filing of a motion is subject to requirements of conferring with opposing counsel and making affirmations of such contacts. Thus, such an email cannot be a valid substitute for a motion, except perhaps when submitted by an unrepresented party ("the judge may treat any request for relief from an unrepresented party as a motion," Rule 60Q5.115(1)).
There is next the issue of practicing law. The Florida Courts have issued many opinions regarding actions and activities that constitute the practice of law. Almost certainly, filing a motion in a case would constitute the practice of law. And, in that context, if the correspondence were deemed to be seeking relief, deemed to be a motion, the implications for the non-attorney paralegal or staff might have consequences for the staff. See The Florida Bar v. Nieman, 816 So.2d 587 (Fla. 2002).(performed acts commonly understood to be the practice of law).
The actions and communications of a paralegal or other staff may also have implications for the lawyer that employs her/him. As noted by the Florida Supreme Court in The Florida Bar v Abrams,
919 So.2d 425 (Fla. 2006). The court reminded that attorneys have responsibilities for their staff and employees:
"(a person who uses certain legal titles shall work under the direction or supervision of a lawyer or authorized business entity); rule 4-5.3(b) (a lawyer shall exercise supervisory responsibility over nonlawyers employed by him or her); rule 4-5.3(c) (a lawyer shall exercise ultimate supervisory responsibility over nonlawyers who assist him or her). . .."
There is perhaps therefore cautionary value in this tale. This paralegal almost certainly violated the procedural rules by submitting correspondence. The purpose of that correspondence was arguably to achieve relief. It could thus perhaps be interpreted as a motion (for rehearing); an incomplete and incompetent motion, but perhaps a motion nonetheless. And, in the process, there is a potential for the conclusion that a non-attorney engaged in the practice of law. Such a conclusion might subject both the non-attorney and attorney to the scrutiny of the Bar.
If a party is dissatisfied with an order, or otherwise seeks relief, the appropriate procedural process is a motion, not correspondence. The appropriate signatory to such a request is a party representing her or himself, or an attorney that represents the party. A paralegal or other staff would not file a motion. There is periodically some tendency to perceive administrative proceedings as more informal. It is, however, worthwhile to remain cognizant of the rules and avoid running afoul of either the procedural rules or The Rules Regulating The Florida Bar.
The good news is that the entry of a closure order in that instance was corrected. It turns out that everyone makes mistakes occasionally. The closure order was vacated and the litigation proceeded on its merits. But, the tale is worthy of consideration nonetheless.
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