As more and more depositions are being taken of robo signers and other witnesses who appear in foreclosure cases by signing documents, a troubling issue has emerged….conflict of interest by the foreclosure mills that are staying up day and night to push their garbage foreclosure cases through.
There are only two or three documents that must be filed by the Plaintiff in order to be granted foreclosure. These documents must be trustworthy if a court is to rely upon them to grant foreclosure and deprive a homeowner of possession of the home. What we’ve found through deposition and discovery is that attorneys who work in the foreclosure mills are signing the key documents that allow their firms to prevail in their cases. This is a staggering violation of the rules of professional ethics, but this practice is apparently quite widespread with groups of attorneys in the mills routinely signing documents, especially assignments of mortgages, allegedly on behalf of MERS in particular. Any document signed by an attorney working for the Plaintiff is ethically improper, but very serious conflict of interest questions are raised when an assignment transfers the first mortgage to the Plaintiff while at the same time, there is any sort of second mortgage and certainly when the Plaintiff lists MERS as a Defendant.
An Absolute Conflict of Interest Anytime A Second Mortgage Exists
MERS is listed as the “mortgagee” or “nominee” on virtually every mortgage that is currently subject to foreclosure. As we know from depositions, whenever the Plaintiff’s law firm needs to show evidence that the named plaintiff has the right to foreclose a mortgage, either an attorney in the office creates this false assignment or they send instructions to a document mill where the false assignment is signed by a robo signer. Title attorneys and attorneys with a real estate background dispute the validity of any assignment from MERS (see Kessler v. Landmark) because MERS simply does not have the authority to issue assignments. Setting this argument aside for just a moment however, the problem with any party acting on instructions from the Plaintiff’s firm is that this party is an agent of the Plaintiff law firm…I cannot conceive of any litigation where it would be permissible for a law firm to instruct his client, “Here’s the evidence I need”, and that client would produce the “evidence” according to instruction and return to the attorney who submits this “evidence” to the court. And yet this happens in virtually every foreclosure across the country….but wait, I got sidetracked down one ethical minefield, when I started in another direction.
When MERS executes one questionable assignment of mortgage (all MERS assignments are questionable) for the first mortgage and there is also a second mortgage that must be foreclosed, Plaintiff’s firms are often not bothering to serve the holder of the second mortgage…all they’re bothering to do is get “service” for that second mortgage on MERS…problematic in any case, but especially problematic when the agent for MERs on either the first or the second mortgage are either an attorney working for the Plaintiff or an agent of the attorney. What follows here is a discussion of some of the ethical issues posed by such practices, and then posted here is a Motion to Disqualify Counsel which Foreclosure Fraud Fighter Mark Stopa has recently been using with great results…bottom line is the Motion to Disqualify must be heard before any substantive issues are addressed, and the foreclosure mills never want these Motions to Disqualify to be heard by a judge…..if judges started hearing these arguments on a regular basis they may never get around to granting foreclosure…and now, directly from the Florida Bar Journal:
Under the Florida Rules of Professional Conduct, an attorney generally must not act as advocate at a trial in which the attorney is likely to be a necessary witness on behalf of the client. 1 The purpose of the rule is to prevent evils that arise when a lawyer dons the hat of both advocate and witness for his own client, as such dual role can prejudice the opposing side or create a conflict of interest. 2
“At a trial,” as used in the rule, does not encompass pre-trial or post-trial proceedings, and thus, does not preclude the attorney from conducting a pre-trial deposition, even if it were likely that the attorney would be called as a witness at a trial. 3 Generally, where an attorney is a necessary witness for a client, the trial of the case should be left to other counsel; the dual capacity of counsel
and witness in the trial of a cause should be avoided if possible. 4 If, from the outset, an attorney knows or can reasonably anticipate that his or her testimony will be essential to the prosecution of his or her client’s case, the attorney should decline the representation altogether. 5 To avoid jeopardizing a client’s cause of action, the better practice is for counsel who must decline or withdraw from representation to arrange to have other counsel conduct the trial when it is apparent that either he or a member of his firm will be required to testify on behalf of his client. 6
The mere possibility that the attorney would or might be a necessary witness is insufficient. 7 Furthermore, unsubstantiated claims that plaintiff’s attorney is a material witness will not disqualify the attorney from representing his client. 8 Likewise, a defendant’s motion for disqualification of a plaintiff’s attorney will not be granted on the ground that the attorney “should be” a witness for the plaintiffs where the plaintiffs testify that they prefer to have their attorney act as their counsel rather than have him testify in their behalf, and where it appears that any information the attorney possess is not crucial and could be presented through the testimony of others. 9The rule requiring a lawyer to withdraw when he expects to be a necessary witness in a case is not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel. 10 Indeed, the District Court of Appeal views with some skepticism motions to disqualify an attorney on the grounds that the attorney will be a material witness in the case, since such motions are sometimes filed for tactical or harassing reasons, rather than the proper reason. 11 Opposing counsel should not be permitted to force disassociation between counsel and client just by calling counsel as an adverse witness, and a lawyer need not withdraw from a case where the mere possibility exists that he or she might be called to testify by the adversary party, as this would create the situation in which the adversary could disassociate the client’s chosen counsel. 12
However, although disqualification of an attorney is an extraordinary remedy to be resorted to only sparingly, 13 when it is shown that the attorney will be an indispensable witness or when the attorney becomes a “central figure” in the case, disqualification is appropriate. Thus, disqualification of an attorney from representation of defendants at the trial was warranted in a defamation action where the attorney was likely to be the featured witness at the trial, adducing evidence as to plaintiff’s activities. 14 Likewise, an attorney was properly disqualified from representing the personal
representative in a will contest, where the attorney had prepared and witnessed the contested will, and, therefore, would be a witness on matters of substance at the trial. 15 Also, both an attorney and the attorney’s firm should have been disqualified from representation, where an attorney brought an action against a partnership for his wife in a slip-and-fall case and for himself on a claim for loss of consortium, and the attorney’s partner had represented the partnership and still served as its resident agent for service of process, because the attorney could well be called to testify, resulting in a violation of a rule of professional conduct, and the firm, through its representation, may have had access to privileged information of the partnership. 16
¨ Observation: A litigant’s action in causing the disqualification of its opponent’s trial counsel enjoyed absolute immunity from a later claim of tortious interference with a business relationship, where the litigant certified to the trial court an intent to call opposing counsel as a witness at trial, thereby causing opposing counsel to be disqualified, but later failed to subpoena and call counsel as a witness at trial, and when a judgment was entered against the litigant, disqualified counsel brought an action against the litigant for tortious interference with a business relationship. 17
FOOTNOTE 1. Rules Regulating the Florida Bar, Rule 4-3.7(a).
Annotation References
Attorney as witness for client in civil proceedings—modern state cases, 35
A.L.R. 4th 810.
Trial Strategy References
Attorney Malpractice in Real Estate Transactions, 27 Am. Jur. Proof of
Facts 3d 353.
Existence of attorney–client Relationship, 48 Am. Jur. Proof of Facts 2d
525.
FOOTNOTE 2. Scott v. State, 717 So. 2d 908, 23 Fla. L. Weekly S175 (Fla.
1998), reh’g denied, (June 15, 1998).
FOOTNOTE 3. Columbo v. Puig, 745 So. 2d 1106, 24 Fla. L. Weekly D2705
(Fla. Dist. Ct. App. 3d Dist. 1999).
FOOTNOTE 4. Dudley v. Wilson, 152 Fla. 752, 13 So. 2d 145 (1943).
FOOTNOTE 5. Hubbard v. Hubbard, 233 So. 2d 150 (Fla. Dist. Ct. App. 4th
Dist. 1970) (decided under predecessor law governing the Bar).
FOOTNOTE 6. Beavers v. Conner, 258 So. 2d 330 (Fla. Dist. Ct. App. 3d
Dist. 1972), appeal after remand, 289 So. 2d 462 (Fla. Dist. Ct. App. 3d Dist.
1974) (decided under predecessor law governing the Bar).
FOOTNOTE 7. Srour v. Srour, 733 So. 2d 593, 24 Fla. L. Weekly D1329 (Fla.
Dist. Ct. App. 5th Dist. 1999).
Singer Island Ltd., Inc. v. Budget Const. Co., Inc., 714 So. 2d 651, 23
Fla. L. Weekly D1773 (Fla. Dist. Ct. App. 4th Dist. 1998).
A franchiser’s attorney was not required to be disqualified for conflict
of interest based on the attorney’s previous representation of a franchisee,
where the attorney previously had written two letters and had sat in on
meetings with the franchisee in connection with the franchisee’s claim that
its assignor was in breach of its noncompetition agreement and, when the
franchisee brought an action against the franchiser alleging a breach of the
franchise agreement, contended that the attorney should be disqualified,
even though there was no evidence that the attorney’s testimony would be
necessary or that his testimony would be averse to the franchiser’s position.
Swensen’s Ice Cream Co. v. Voto, Inc., 652 So. 2d 961, 20 Fla. L. Weekly
D811 (Fla. Dist. Ct. App. 4th Dist. 1995).
FOOTNOTE 8. Pascucci v. Pascucci, 679 So. 2d 1311, 21 Fla. L. Weekly D2142
(Fla. Dist. Ct. App. 4th Dist. 1996).
FOOTNOTE 9. Cazares v. Church of Scientology of California, Inc., 429 So.
2d 348 (Fla. Dist. Ct. App. 5th Dist. 1983), petition for review denied,
438 So. 2d 831 (Fla. 1983) and related reference, 444 So. 2d 442 (Fla. Dist.
Ct. App. 5th Dist. 1983).
FOOTNOTE 10. Allstate Ins. Co. v. English, 588 So. 2d 294, 16 Fla. L.
Weekly D2774 (Fla. Dist. Ct. App. 2d Dist. 1991).
Arcara v. Philip M. Warren, P.A., 574 So. 2d 325, 16 Fla. L. Weekly 530
(Fla. Dist. Ct. App. 4th Dist. 1991).
Ray v. Stuckey, 491 So. 2d 1211, 11 Fla. L. Weekly 1569 (Fla. Dist. Ct.
App. 1st Dist. 1986).
FOOTNOTE 11. Singer Island Ltd., Inc. v. Budget Const. Co., Inc., 714 So.
2d 651, 23 Fla. L. Weekly D1773 (Fla. Dist. Ct. App. 4th Dist. 1998).
FOOTNOTE 12. Allstate Ins. Co. v. English, 588 So. 2d 294, 16 Fla. L.
Weekly D2774 (Fla. Dist. Ct. App. 2d Dist. 1991).
FOOTNOTE 13. § 329.
FOOTNOTE 14. Fleitman v. McPherson, 691 So. 2d 37, 22 Fla. L. Weekly D884
(Fla. Dist. Ct. App. 1st Dist. 1997), related reference, 704 So. 2d 587, 22
Fla. L. Weekly D2091 (Fla. Dist. Ct. App. 1st Dist. 1997).
FOOTNOTE 15. Larkin v. Pirthauer, 700 So. 2d 182, 22 Fla. L. Weekly D2387
(Fla. Dist. Ct. App. 4th Dist. 1997).
FOOTNOTE 16. Springtree Country Club Plaza, Ltd. v. Blaut, 642 So. 2d 27,
19 Fla. L. Weekly D1704 (Fla. Dist. Ct. App. 4th Dist. 1994).
FOOTNOTE 17. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v.
U.S. Fire Ins. Co., 639 So. 2d 606, 19 Fla. L. Weekly S347 (Fla. 1994).
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