Something to keep in mind when asking lawyer to refer specializing counsel

Contact William R. Moore

Most of us have a lawyer that handles general issues arising from routine business issues or have alternatively used in the past. This is generally the first licensed professional that one reaches out to should they become the subject of a criminal investigation. The hope is that the Counsel that they had placed their trust in for prior matters will be best qualified to refer a criminal defense attorney proficient in our justice system. This seems logical and in most circumstances may result in one’s obtaining competent representation for their defense. There are some things to consider, however, before you rely solely on one lawyers recommendation as to who is best to represent you.

Financial incentive for referring attorneys

When one lawyer sends a case to another who is more proficient in a certain area practice, the issue of referral fees is certain to come up between the two. In Florida, it is legal for the referring attorney to be paid up to 25% of the legal fee paid to the lawyer who ultimately handles the case. In some circumstances, the paying client has no idea that the attorney first contacted is profiting from the amount paid to the lawyer or firm ultimately handling their case. Ethically, however, the client is should not only be informed of the fee splitting arrangement but also consent to that compensation arrangement. It is always advisable when seeking a referral from a lawyer or law firm to inquire as to any potential fee splitting arrangements.

Does the referring attorney have to assist with representation?

Technically, yes. Referring attorneys are expected to assist in working on the client’s case. However, assisting can arguably be the initial discussion with the client seeking specialized counsel. Regardless of what level of participation the referring attorney provides, it should be noted that by accepting a co-counsel or referral fee, that licensed professional is responsible for any malpractice claims that may arise from the litigation.

Florida rules regarding referral fees and practices

In determining if a co-counsel relationship exists, the court should look to see if the lawyers have established a special partnership agreement for the purpose of the specific case or matter. If such an agreement does exist, it must provide for a sharing of services or responsibility and the fee division is based upon a division of the services to be rendered or the responsibility assumed. It is contemplated that a co- counsel situation would exist where a division of responsibility is based upon, but not limited to, the following: (a) based upon geographic considerations, the lawyers agree to divide the legal work, responsibility, and representation in a convenient fashion. Such a situation would occur when different aspects of a case must be handled in different locations; (b) where the lawyers agree to divide the legal work and representation based upon their particular expertise in the substantive areas of law involved in the litigation; or (c) where the lawyers agree to divide the legal work and representation along established lines of division, such as liability and damages, causation and damages, or other similar factors.

Where a non-lawyer refers a case to a lawyer or law firm?

Lawyers are prohibited from paying referral fees to nonlawyers under the Florida bar rules and can be disciplined for doing so. In fact, no lawyer shall give anything of value to a person for recommending their services.

 

William Moore is a criminal defense attorney who is been practicing in Broward County Florida for over 20 years. Should you have questions about this article want to know more about attorney referral fees contact him at 954-523-5333.

Leaving the scene of an accident: Can I leave a note?

Leaving the scene of an accident

If you hit a parked car and are unable to find the owner, most people understand the law to require that the driver at fault leave a note with his or her contact information. Under Florida law, however, this isn’t quite enough as Florida statutes require that the accident be reported to the local police department.

Attorney William R. Moore also cautions that it is always a good idea to report a fender bender to the local police even where the other party does not wish to do so. We have seen many cases where the so-called victim agreed that the damage was nonexistent or so minor that an accident need not be reported only to find that they later contacted their insurance carrier and reported a hit-and-run.

Remember, if you are involved in an accident that does not involve injury, you must stop your vehicle at the nearest safe location. Information such as your name, address and registration number must be provided. Always contact law enforcement as well.

Should I submit to roadside sobriety exercises?

If you are pulled over and suspected for DUI in Broward County Florida, the investigating officer will undoubtedly ask used to submit to roadside sobriety exercises. Many people unknowingly attempt to perform the one leg stand, finger to nose and heel-to-toe exercises despite there being no legal requirement to do so. These sobriety exercises are always recorded either at the scene via in car cam or at the breath alcohol testing facility in Broward County.

DUI roadside exercises can be powerful evidence.

According to DUI attorney William R. Moore, videotaped field sobriety exercises are often the most powerful piece of evidence that can be used by prosecutors to convict a DUI defendant. If performed correctly however, the value of this evidence shifts completely to the defense and is often used to acquit. It all comes down to how well the individual performs and to what extent it contradicts the written observations in the corresponding police report prepared by the investigating police officer.

DUI roadside sobriety exercises are completely voluntary.

Most people are not aware that roadside sobriety exercises are completely voluntary and that they do not have to submit. Police officers are clever when investigating a suspect in the manner in which they “ask” an individual if they wish to perform. Specifically, the language used is often something to the effect that the suspected driver may be able to dispel the officer’s belief that he or she is impaired by drugs or alcohol.

The truth, however, in 99% of all cases is that the officer, already having probable cause to believe that a DUI is been committed, is going to make an arrest and their reason for requesting roadside sobriety exercises is to enhance the likelihood of obtaining a conviction down the line.

Roadside sobriety exercises are extremely difficult to perform even by those who are completely lucid.

Roadsides are divided attention tests that have no resemblance to any physical activity performed naturally in a person’s life. They are not only unfamiliar by vast majority of people they are also difficult. Police officers make them look easy when demonstrating as they have practiced them thousands of times in anticipation of submitting them to suspects. This is not to say that they cannot be performed successfully. Attorney William Moore has seen thousands of videos whereby defendants, previously arrested for DUI, performed excellently. These cases almost always result in an acquittal regardless of accompanying intoxilyzer evidence to the contrary.

Should you submit to roadsides?

This answer depends solely on a suspects coordination, level of impairment, if any and their ability to follow instructions and ask questions if needed. If you don’t believe that you will successfully be able to perform the tests (exercises under the law) it is often best to decline, obviously. If you are of the opinion however, that you will be able to avoid an arrest by dispelling the officers belief after submitting to roadsides, remember that 99% of the time, the officer has already made the decision to arrest you and will do so regardless of your performance.

Event data recorders: Automobile black-box information in DUI manslaughter cases

DUI Manslaughter Evidence | Attorney William R. Moore

The first form of an automobile “black box” was first introduced by General Motors in 1990. Although somewhat rudimentary in comparison to today’s event data recorders, the DERM system served a very similar function and paved the way to the widespread use of the ever-evolving device used today. Use of the device was so successful when first introduced that crash impact recorders were approved just three years later by the United States Auto Club for use in the 1993 Indianapolis 500.

Since that time EDRs had become standard equipment on production automobiles which has led to much debate regarding use of the evidence obtained by them in Florida criminal cases. Arguments with regard to the accuracy of data obtained as well as privacy issues have fallen in favor of EDR devices on both accounts.

In Florida, evidence obtained by an automobile’s black box is considered widely accepted in well-established technology. Although both the device and the data recorded by it are considered property of the vehicle owner, the state of Florida provides no significant privacy protection when it comes to criminal prosecution according to criminal defense attorneys. Both prosecutors and the courts have found that an individual simply does not have the same expectation of privacy with regard to blackbox data as opposed to the automobile in general.

Criminal investigators have a duty to preserve EDR evidence

When a police officer reconstructs a collision with the intent of utilizing the results of the investigation or furtherance of criminal prosecution than that officer should preserve any event data recorder information. Although most commonly used to establish the speed at which a DUI manslaughter defendant was driving at the time of the crash, EDRs also record information specific to the date and time of the collision, depth of the accelerator pedal, steering angle, breaking pattern, throttle position, turn signal operation, seatbelt status, airbag deployment status and the force of impact. The prosecution’s use of this information has not only been used successfully by the State Attorney’s Office in drunk driving cases involving significant injury or death but also in hit and run cases involving a fatality, culpable vehicular homicide and premeditated murder cases (where EDR data discredited a defendant account of how the victim was killed).

Black box evidence can significantly impact either the prosecutor’s or defense lawyer’s case

William R. Moore DUI Evidence LawyerAccording to William R. Moore, a criminal defense attorney in Fort Lauderdale Florida, blackbox evidence is extremely powerful when used in conjunction with expert traffic crash investigators. The corroborative evidence can be quite significant when it comes to either bolstering or discrediting either the prosecutor or defense attorney’s expert witness. Occasionally a DUI manslaughter or vehicular homicide case will involve an automobile that became airborne prior to the collision resulting in very little tire tread evidence which is crucial to an accurate investigation. In such cases, event data recorder information can be considered paramount.

When asked how he felt about Florida’s denying right to privacy and reliability claims, attorney Moore explained that we have seen that same thing for years in DUI cases using CMI Intoxilyzers. A computer spits out data and prosecutors use it as their primary basis to prove their case beyond into the exclusion of any and all reasonable doubt. It’s kind of scary.

Questions about the use of automobile black box data evidence in Florida criminal cases, contact lawyer William R. Moore  directly by calling 954-523-5333 or visiting One Financial Plaza, Fort Lauderdale, FL 33394.

Stand your ground law in Florida, a license to kill: Issues, application and controversy

Contact Fort Lauderdale Criminal Gun Crime Lawyer William Moore

Florida’s Stand Your Ground Law was enacted over a decade ago and has been the center of significant controversy in the wake of high profile cases such as George Zimmerman/Trayvon Martin. Despite significant criticism of Florida’s expanding on a victim’s right to use deadly force in self-defense there have also been attempts to broaden the scope in favor of the law. In 2016, an attempt was made to further protect victims using deadly force by shifting the burden to prosecutors who would then be charged with the task of proving that the use of such force was not justified.

For those of you unfamiliar with the changes that Florida’s stand your ground law made to our criminal justice system consider the following:

10 years ago lawmakers succeeded in expanding Florida’s criminal law on self-defense with the goal of creating a less complicated and easier legal means for victims who used deadly force against an assailant. Under Florida law deadly force can be defined “in part” by use of a deadly weapon such as a firearm or knife. This of course can be expanded to include instances where an individual uses an automobile as a weapon and may also be defined by the act itself rather than the item used.

William R. Moore Firearm Lawyer in Fort Lauderdale FloridaThe specific language used by lawmakers was that these changes would provide a simpler, faster and cheaper legal path for those defending themselves against accusations relating to deadly force. According to Florida criminal defense lawyers, however, the law has shown to fail in this regard due to the fact that it requires poor defense strategy where a defendant elects to assert a stand your ground defense via a pretrial hearing. More will be discussed on this below.

What is Florida’s Stand Your Ground Law?

Florida’s stand your ground law expanded upon pre-existing self-defense statutes rather than creating a new type of affirmative defense for persons accused. Under sections 776.012 and 776.77 6.01377 6.013 Florida law now provides that a person is justified in using deadly force and has no duty to retreat if that person believes that deadly force is necessary to prevent death or great bodily harm to either him or herself or another.

Furthermore, under “stand your ground” Florida criminal law provides that where an assailant attempts to or enters a victim’s home or vehicle, or refuses to leave, that victim can be presumed to have a reasonable fear of death or great bodily harm so as to justify the use of deadly force the accused. The assailant will also be presumed to be acting with the intent to commit an unlawful act involving violence.

In criminal cases involving a home or automobile under this section, no evidence “per se” is required that tends to establish that the assailant actually intended to exert deadly force or that the person seeking protection under stand your ground was actually in fear.

William R. Moore Fort LauderdaleFor example, a person who accidentally walks into the wrong unit of their apartment complex could legally be shot dead on the spot by the lawful occupant. Furthermore, the person walking into the wrong apartment will be legally presumed to have been doing so with the intention of harming the occupants. Additionally, the occupants as a matter of law will be presumed to have had a justifiable fear that they were in danger of being killed. These presumptions will exist regardless of any actual intent or fear of the respective parties absent evidence to the contrary.

This is a drastic change from Florida’s original criminal justice system regarding the use of deadly force in self-defense cases.

Claiming self-defense where deadly force was used prior to Florida’s stand your ground law

Before Florida’s stand your ground laws came into effect, the use of deadly force in order to defend oneself was limited in the fact that individuals were required to use every possible means within their power to avoid the conflict. This duty to retreat was defined by higher courts over time to include such language as to the effect that individuals as a matter of law were required to “retreat to the wall” under the law. This duty to retreat stemmed from the earliest of laws otherwise known as common-law.

Who has the burden in stand your ground self-defense cases?

In practice, our criminal justice system revolves around burdens when it comes to the respective roles of both the prosecution and criminal defense attorney. For example, in order to prove a case, it is the state attorney who is considered to have the burden in proving a case beyond into the exclusion of any and all reasonable doubt. This pertains to every element of a crime.

Explanation via analogy: In a simple DUI case, the prosecution must prove that the defendant was driving a vehicle and that they were under the influence of an alcoholic beverage or controlled substance to the extent that their normal faculties were impaired. Individually, those are three elements, the first being that the defendant was driving. The fact that the defendant was driving must be proven beyond and to the exclusion of any and all reasonable doubt just as it must be proven beyond and to the exclusion of any and all doubt that they were under the influence of a controlled substance and thirdly that their normal faculties were impaired. This is considered the states burden.

See DUI in Florida

Other issues pertaining to criminal cases in Florida require the defense to incur the burden. Such is the current state of the law with regard to asserting a defense under stand your ground.

Originally, the legislature was unclear as to who bore the burden with regard to stand your ground and it was not until the fifth District Court of Appeals held that requiring the prosecution to prove that a defendant did not have the right to assert stand your ground would require the state to essentially prove the case twice. Ultimately, the higher court ruled that it was incumbent on the defendant to establish by way of a pretrial hearing that he or she was entitled to immunity from prosecution under the statute.

On the one hand, it is argued that if the state attorney believes that they can proceed in proving a case then they should easily be able to establish that a defendant is not entitled to immunity under Florida’s stand your ground law. On the other, it is maintained that a defendant should at least be forced to establish the lawfulness of their actions in exchange for immunity, which applies both criminally and civilly. This of course has raised issues with regard to the time of stand your ground pretrial hearings in relation to the ability and resources available to a defendant early on in the litigation.

Proposed changes to expand Florida’s stand your ground law in favor of the accused

In January 2016, the Florida Senate approved changes to Florida’s stand your ground laws that would have shifted the burden of proof to prosecutors. If made into law, this would have required the state attorney’s office in the appropriate jurisdiction to prove to the presiding criminal judge that a defendant was not entitled to immunity under the statute. Failure to do so would have required any further action against the defendant in any criminal proceeding. These changes were fully endorsed by the NRA. This bill, however was not considered on the House Judiciary Committee’s agenda for the 2016 session and the burden of proof remains on the defendant.

Criminal justice procedure and stand your ground self-defense cases

In order to assert protection from prosecution under Florida’s criminal law, the defense attorney and the accused must make the hard decision as to whether or not to request a pretrial hearing on the matter. This requires the defendant to testify and otherwise waive their right to remain silent and additionally tilt their hand as to the defense to be used should immunity be denied in the case proceed to trial. Many Florida criminal defense attorneys consider a request for immunity by way of a pretrial hearing to be malpractice.

Benefits to a criminal defense attorney’s choice to forgo a pretrial hearing

The majority view among criminal lawyers is that it is a better practice to proceed straight to trial and waive any right to a pretrial hearing under Florida’s stand your ground law. This preserves the defense theory of the case as well as their clients right to remain silent. Furthermore, a defendant does not have to admit to killing the named victim. A requirement in order to seek immunity through justification of the killing admitted to.

By going to trial, a criminal defense team can rely on jury instructions that clearly state what is considered a justified killing requiring a not guilty verdict. This is because Florida’s stand your ground laws are included in those instructions regardless of whether a defendant chooses to testify or not. Despite these instructions, defendants who choose to go to trial relying on the jury being instructed as to Florida’s stand your ground law are not technically considered stand your ground cases, rather, only cases involving a pretrial determination under the law.

Criticism and Last Man Standing Argument

Florida’s stand your ground law has been criticized by many. President Barack Obama even went as far as to say that Treyvon Martin could have been him 35 years ago. One of the most frequent criticisms of the law is that it allows the defendant some form of benefit by being the last and only word. This course presumes that all stand your ground defense claims will involve the actual killing of the victim.

This is not the case claims William R. Moore, a criminal defense attorney in Fort Lauderdale Florida.

“A large number of stand your ground cases involve scenarios where a defendant use deadly force against another and did not kill them. The law does not apply only to cases involving a deceased victim.”

Florida Statute 776.013 extends protections to not only dwellings but to cars as well

Although Florida’s stand your ground law falls under the heading “Home Protection”, many do not realize that under the same section individuals in an “occupied vehicle” are afforded the exact same right to use deadly force as if they were in the sanctity of their own home. This raises serious concerns with regard to the inordinately high number of road rage cases in South Florida.

“We have to consider that individuals may choose to stand and fight, exercising deadly force on our streets and highways rather than exercising an easy option to simply drive off” – Attorney William Moore