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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I am appealing pro se, a final order that was rendered March

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I am appealing pro se, a final order that was rendered March 18,2013, in a civil Florida circuit court. In the process of preparing my appellate brief, I discovered that the lawyer I had earlier retained failed to enter into the record some important information that would have prevented a fundamental adverse judgment in the same case, rendered 2/2013. Florida requires that a notice of appeal be filed within 30 days, which is now past due. Can I file a motion for a new hearing of the entire case based on ineffective counsel, or is a legal malpractice suit agains the lawyer my only recourse?
Additionally, my understanding is that you cannot produce new evidence that was not presented in the lower court. Does this prevent me from presenting this information in my appellate brief?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

I am afraid that unlike criminal cases where you can argue ineffective assistance of counsel, in civil cases I am afraid if your attorney did not properly pursue your case this is not ground for a rehearing or reconsideration if this evidence was available to your attorney during trial. Your recourse for your attorney not doing their job and being negligent in failure to introduce evidence that would have prevented the judgment would be to sue the attorney for malpractice and seek the money damages from him that his negligence caused you to suffer.

If the evidence was not presented or argued in the lower court you cannot raise it for first time on appeal I am afraid.



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Customer: replied 3 years ago.

This lawyer withdrew 1 week before the 2/2013 hearing, the same day the February date for the hearing was set. I filed a motion for postponement of the hearing which was denied . Does the total lack of any representation give me any ability to get a new trial? unrepresented at the hearing.

Thank you for you response.

With the lawyer withdrawing one week before the hearing, this is grounds to appeal based on the court abusing its discretion in not giving you a continuance to properly prepare your case or to hire another attorney. That is a ground you can assert on appeal.
Customer: replied 3 years ago.

Can you give me some Florida case law that would support this?

Thank you for you response. Please understand we are not a case law research service because of the cost of such research exceeding the scope of this service. I sincerely apologize.

However, you must prove the withdrawal did not comply with the ethics rules on withdrawing from a case.

The Rule Regulating Florida Bar 4-1.16(b) provides:

(b) When withdrawal is allowed. Except as stated in subdivision (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(6) other good cause for withdrawal exists.

This rule permits withdrawal from a case even if the interests of the client are adversely affected, provided one of the six grounds is present.

If your attorney did not present one of these grounds, he did not have good cause for such a late withdrawal and that is what you argue on appeal. Denial of continuance to find new counsel where counsel withdraws late and client is not able to prepare case at late date is abuse of discretion. See: Citrin v. De Venny, 833 So.2d 871 (Fla. App., 2003) (court held late withdrawal of attorney and client's mental status preventing him from preparing for case was good cause for continuance and court held it was abuse of discretion not to grant such continuance).
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