Jorgenson v. County of Volusia
846 F. 2d 1350, 1988 WL 52227 (1988)
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Rule of Law:
Under Federal Rule of Civil Procedure 11, an attorney has an affirmative duty to disclose adverse, controlling legal authority to the court and may be sanctioned for failing to do so, as such an omission can constitute an affirmative misrepresentation of the state of the law.
Facts:
- Attorneys Eric Latinsky and Fred Fendt represented 'Porky's,' a lounge, in a challenge to a Volusia County ordinance prohibiting nude entertainment in establishments where alcohol is sold.
- In support of an application for an injunction, the attorneys filed a legal memorandum arguing the ordinance was unconstitutional under the state's general police power.
- The memorandum failed to cite or discuss City of Daytona Beach v. Del Percio, a recent Florida Supreme Court decision that was directly on point.
- The Del Percio case held that the state had delegated its broad Twenty-First Amendment authority to regulate alcohol to counties, meaning such ordinances were subject to a more deferential standard of review than the one argued by the attorneys.
- The memorandum also failed to cite the relevant U.S. Supreme Court case, New York State Liquor Authority v. Bellanca.
- Attorney Latinsky had personally participated as counsel in the Del Percio case, establishing his awareness of the controlling precedent.
Procedural Posture:
- Attorneys Latinsky and Fendt filed an application for a temporary restraining order and preliminary injunction in federal district court on behalf of their clients.
- The district court sanctioned the attorneys under Fed. R. Civ. P. 11 for failing to cite adverse precedent.
- The attorneys (appellants) appealed to the U.S. Court of Appeals for the Eleventh Circuit.
- The Eleventh Circuit remanded the case, finding the district court had not given the attorneys proper notice and an opportunity to respond to the potential sanctions.
- On remand, the district court held a hearing and reaffirmed its imposition of sanctions.
- The attorneys appealed to the Eleventh Circuit for a second time.
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Issue:
Does an attorney's failure to cite controlling, adverse precedent in a legal memorandum violate Federal Rule of Civil Procedure 11 and warrant the imposition of sanctions?
Opinions:
Majority - Per Curiam
Yes. An attorney's failure to cite controlling, adverse precedent violates Federal Rule of Civil Procedure 11. The court reasoned that appellants had a duty to refrain from affirmatively misleading the court as to the state of the law. By arguing the case under the general police power standard while omitting the controlling precedent from Del Percio—which established that the more deferential Twenty-First Amendment standard applied—the attorneys misrepresented the legal landscape. The court found this omission was done with 'apparently studied care,' particularly since one of the attorneys had been counsel in the adverse case. The duty of candor is not absolved by the possibility that opposing counsel might later correct the record, especially when an ex parte order like a temporary restraining order is at stake.
Analysis:
This decision emphasizes that an attorney's duty of candor to the tribunal under Rule 11 extends beyond refraining from frivolous arguments; it includes an affirmative obligation not to mislead the court by omitting controlling, adverse precedent. It establishes that such an omission is not a mere tactical choice but can be a sanctionable misrepresentation of the law. The case serves as a significant precedent in the Eleventh Circuit, warning practitioners that 'hiding the ball' from the court on the state of the law is a serious violation of professional obligations that will not be tolerated, regardless of the advocacy model.
