Gjokhila is a recent case out of the First District Court of Appeal. The Gjokhila opinion reinforces the concept of caveat emptor, “Let the buyer beware.” Further, the opinion shows us how important agreements are even outside of a divorce action.

I.             Factual Summary.

II.           Fla. R. Civ. P. 1.540(b)(1) & Fla. Fam. L. R. P. 12.540(b)(1).

Finally, the Appellate Court reaffirmed the “Invited Error Doctrine.” Under the invited error doctrine, a party cannot successfully complain of error for which they are responsible, or of rulings that they have invited the trial court to make. The Mother, by requesting the trial court ratify the parties’ mediated settlement agreement, invited the trial court to use an erroneous income amount and child support calculations. As the Mother invited the error, she cannot now “complain” about it on appeal. Caveat emptor!

Until receipt of that email, I thought that I was rather diligent when it came to filtering out spoof, phishing, and scam emails. As the de facto in-house IT department head, I regularly remind my staff not to open anything suspicious, especially attachments, and to always look at the email address of the sender, not just the sender’s name. In this instance, I failed to follow my own instructions. Had I done so, I would have clearly determined that the “colleague’s” email address was not her email address at all, but was, in fact, [email protected] (not the actual address). A “Who Is” search turned up nothing, as did searches on Intelius and Spokeo. This was not unexpected as the email address was most likely a spoof address from a phishing scammer.

Thankfully, no harm was done, but it taught me to be more mindful in checking each sender’s email address before opening (something I thought I was already doing). Barracuda reports that “Spam accounts for 53% of the world’s email traffic, and about $20 billion per year in losses.” There are numerous products available to reduce the threats, but none of them are “set it and forget it”.

There are even more sophisticated threats out there involving bots, such as Qakbot, that hijack email chats to spread malware. A recent report from the HHS Cybersecurity Program on this insidious program can be found here.

Eternal vigilance remains the mantra. At the very least, you should have some type of anti-spam solution (and not just the junk e-mail filtering system that comes with Outlook for Microsoft 365). Microsoft has recently issued “10 tips” on reducing spam. There are numerous third-party email filters that claim to reduce spam emails, some of which have “free” options (“free” meaning very limited and designed to upsell you one of the company’s paid offerings; note too that some may sell your data to other companies once you sign up for the “free” app). Do your research before downloading. Stay safe out there and take the extra few seconds to check the actual e-mail address of the sender before opening. If it seems “phishy,” it probably is.

The normal client-lawyer relationship may be compromised when the client either has partially or completely diminished capacity to make informed and reasoned decisions. Florida lawyers now have a new ethics Rule 4-1.14 which expressly assists lawyers representing clients with diminished capacity. The Florida Supreme Court evaluated ABA Model Rule 1.14 and decided to significantly rewrite Rule 4-1.14. [1] Two important provisions of the new Rule are unique to Florida and are not found in the ABA Rule.

“A lawyer is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.”

 “A lawyer must make reasonable efforts to exhaust all other available remedies to protect the client before seeking removal of any of the client’s rights or the appointment of a guardian.”

The new Rule makes it clear that taking protective actions for clients with diminished capacity is not mandatory. The Rule authorizes family members or other trusted persons to participate in discussions with the lawyer when deemed necessary by the lawyer to take protective action measures. Doing so does not waive the attorney-client privilege. Further, the lawyer’s disclosure of the client’s diminished capacity to others does not breach the client’s right to confidentiality under the Rule because the information relating to representation of a client is protected under the new Rule.

Note that both the Florida and ABA rules state that diminished capacity may be as a result of “minority” or “mental impairment” or “some other reason." This is a very broad definition. It may include, for example, a teenage parent with limited ability (diminished capacity) to make financial or parenting decisions, which could give rise to another relative’s involvement in a paternity case. Or, when clients are too emotionally traumatized to make any decisions for their own or their children’s best interests, you may wish to seek assistance from family members or therapists. This is permitted under the new Rule. Clients with substance abuse issues may also fall under this Rule. 

Caveat – Just remember your duty is to the client and his/her best interests, not the best interests of the assisting relative.

Question – You think your client may be in imminent risk for harming him/herself or others (i.e., children). What action do you take? What is the lawyer’s responsibility to third parties? Remember that Florida is still a mandatory reporting state for abuse, abandonment or neglect.   

[1] The old Rule was titled “Client Under Disability” and was comprised of a mere two sentences. The new Rule addresses maintenance of the normal relationship, protective action and confidentiality.

FAMSEG recognizes the Section’s Equitable Distribution Committee co-chaired by Cash A. Eaton of West Palm Beach and Reuben Doupe of Naples. Vice Chairs are John Foster of Orlando and Lindsay Gunia of Miami, and Secretary is Jaime Girgenti of Tampa.

The Committee meets regularly in person and remotely to progress its goals. We welcome all readers to join us for our meetings in January at the Certification Review Course. Those interested in the Equitable Distribution Committee are encouraged to email [email protected].

WRITERS WANTED! Want to submit an article for our monthly FAMSEG e-news, or our quarterly magazine, The Commentator? We can always use Tech Tips, Case Law Updates, and other relevant news for our 4,000+ members. Just email [email protected] for more information. Thank you for your interest in contributing to our member publications!