# Third District Court of Appeal

State of Florida

Opinion filed December 14, 2018.

________________ No. 3D18-1840 Lower Tribunal No. 09-87096

________________ 

### Bank of America, N.A., Petitioner,

vs. 

### Ryan Atkin,

Respondent.

A Case of Original Jurisdiction – Prohibition. Liebler, Gonzalez & Portuondo, and Elizabeth A. Henriques, for petitioner. Jacobs Legal, PLLC, and Bruce Jacobs, Amida U. Frey, and Anna C. Morales, for respondent.

Before SUAREZ, LOGUE, and LINDSEY, JJ. LOGUE, J.

ORDER TO SHOW CAUSE2 Upon our review of the Respondent’s Response to Petition for Wr it of Prohibition and Motion to Disqualify the Third DCA from Ruling, Case No. 3D18- 1840 (Fla. 3d DCA Sept. 17, 2018) filed by Bruce Jacobs and Jac obs Legal, PLLC, including the documents in the appendix, we hereby order Bruce Jacobs, Esquire, and Jacobs Legal, PLLC, to show cause within ten days why this court should not impose sanctions for violations of the Florida Rules of Appella te Procedure and Rules Regulating the Florida Bar.

a. Impugning Integrity of Judges

. Every lawyer admitted to the Florida Bar has sworn that he or s he “will maintain the respect due to courts of justice and judicial officers” and to “abstain from all offensive personality.” In this regard, Rule 4-8.2(a) of the Ru les Regulating the Florida Bar provides in pertinent part: A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concernin g the qualifications or integrity of a judge . . . . “[E]thical rules that prohibit attorneys from making statements impugning the integrity of judges are not to protect judges from unpleasant o r unsavory criticism. Rather, such rules are designed to preserve public c onfidence in the fairness and impartiality of our system of justice.” The Florid a Bar v. Ray, 797 So. 2d 556, 558-59 (Fla. 2001).3 Insults or disparaging comments by lawyers to courts in court f ilings cannot be justified as zealous advocacy because they risk alienating t he very judges the lawyer was hired to persuade. Insults normally reflect--not at tempts at persuasion-- but the abandonment of any attempt to persuade. A lawyer resort ing to insults in court filings is perhaps genuinely expressing his or her frustr ation at not being able to persuade the court. But this venting can come a high cost to the client’s interests. And disparaging comments cannot be justified as a means to iden tify problems in the legal system because insults usually garner resistance to a n idea rather than a sympathetic consideration. For these reasons, “[i]t is not a part of an attorney’s duties to his clients to use language in his Petition for Rehearing, or in any other papers filed in this court, that is actually insulting to the members of the panel which heard t he case.” Vandenberghe v. Poole, 163 So. 2d 51, 51 (Fla. 2d DCA 1964). “A lthough attorneys play an important role in exposing valid problems within the ju dicial system, statements impugning the integrity of a judge, when made with r eckless disregard as to their truth or falsity, erode public confidence in the ju dicial system without assisting to publicize problems that legitimately deserve atten tion.” Ray, 797 So. 2d

at 560.

This court finds there is a reasonable basis to conclude that M r. Jacobs and Jacobs Legal, PLLC violated 4-8.2(a) on September 17, 2018, whe n they filed the4 Response containing the following statements recklessly impugni ng and disparaging the judges of this court and two judges of the circuit court:

o “In Simpson [sic], this Court violated the standard of review, ignored Florida Supreme Court precedent, and falsified the fact s in contradiction to the record.”

o “The impartiality of this Court is objectively questioned and i t cannot issue a ruling with integrity in this case.”

o A named circuit court judge acted with “blatant disregard for t he rule of law and the client’s constitutional rights” in an unrel ated case and was upheld by this Court.

o The same circuit court judge has “recently escalated her illega l conduct.”

o A different, unnamed circuit court judge changed a favorable ruling because opposing counsel “threw a fundraiser for the new judge who rotated into the division.” Resp. at 4, 8, 9, 10, 12.

This court also finds there is a reasonable basis to conclude t hat Mr. Jacobs and Jacobs Legal, PLLC violated this Rule on August 10, 2018, w hen they filed with the United States Supreme Court the jurisdictional brief they a ttached as Appendix 1 to their Response containing the following statements impugni ng and disparaging the judges of this court and the Florida Supreme Court:

o “The opinion [of this Court] mispresented facts, ignored Florid a Supreme Court law, and disregarded evidence showing fraud. The Florida Supreme Court declined jurisdiction to address this factually and intellectually dishonest result.”5 o “The Third District Misrepresented the Amended Rule 1.540(b) Motion to reach a pre-determined result – foreclosure.”

o “... the Dishonesty of the Third DCA’s opinion.”

o “The Florida Supreme Court has repeatedly declined to protect the constitutional rights of foreclosure defendants.”

o “[I]n virtually every appeal where the trial judge ruled in fav or of undersigned counsel’s client, including Simpson, the Third DCA reversed with intellectually and factually dishonest opinions.”

o This Court “attempt[ed] to cover up, protect, and ignore welldocumented fraud on the court in foreclosures. All to ensure a pre-determined result – foreclosure.”

o “The Third DCA’s Opinion is pretextual and arbitrary.”

o “This Court is called on to act because the Florida Supreme Cou rt has taken no action to prevent the Third DCA from improperly ignoring fraudulent conduct in foreclosures.”

o “It is objectively reasonable to fear the Third DCA acted to re ach a predetermined outcome that favors banks over homeowners – foreclosure. If the Florida Supreme Court will not act, this C ourt must.”

o “Democracy will not fail if financial institutions are held to the rule of law. To the contrary, democracy falls if the public is allowed to believe Courts are biased in favor of bad corporate citizens and a fraudulent foreclosure process.” App. 1 to Resp., Pet. for Writ of Cert., Simpson v. Bank of New York Mellon, Case No. 18-187 (U.S. Aug. 10, 2018) at 5, 10, 13, 17, 21, 32, 33, a nd 43, cert. denied (Oct. 29, 2018).

b. Frivolous Filing: Motion to Disqualify

.6 Rule 9.410(a) of the Rules of Appellate Procedure authorizes th is court to “impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith .” Pursuant to this Rule,

this court finds there is a reasonable basis to conclude that M r. Jacobs and Jacobs Legal, PLLC violated these Rules or filed a paper that is frivo lous or in bad faith when they included in their response a motion to disqualify thi s entire court from considering this case when this court had previously three time s denied virtually identical motions filed by them. See HSBC Bank USA, Nat’l Ass’n v. Buset, Case No. 3D16-1383 (Fla. 3d DCA May 14, 2018) (denying motion to dis qualify the entire Third District Court of Appeal), case dismissed, Case No . SC18-1099 (Fla. July 20, 2018) (“It appearing to the Court that the notice was not timely filed, it is ordered that the cause is hereby dismissed on the Court’s own m otion.”); Rodriguez v. Bank of Am., N.A., Case No. 3D17-272 (Fla. 3d DCA July 2, 20 18) (denying motion to disqualify the entire Third District Court of Appeal) , rev. denied, Case No. SC18-1288, (Fla. Aug. 7, 2018), cert. pending, Case No. 18- 723 (U.S. Oct. 11, 2018); Marin v. Bank of New York, 220 So. 3d 1220 (Fla. 3d DCA 2018) (denying motion to disqualify the entire Third District Court of Appeal) , rev. denied, 2017 WL 1398651 (Fla. July 31, 2018), cert. pending, Case No. 18-711 (U.S. Sept. 19, 2018).7 In light of these prior denials, the fourth motion to disqualif y appears to have been designed to serve no other purpose than to allow Mr. Jacob s and Jacobs Legal, PLLC to express “the bottomless depth of the displeasure that o ne might feel toward this judicial body as a result of having unsuccessfully sought appellate relief,” Ayala v. Gonzalez, 984 So. 2d 523, 526 (Fla. 5th DCA 2008), a course of conduct which justifies sanctions. Id.

CONCLUSION Based upon the foregoing, and upon this court’s own motion, Bru ce Jacobs, Esquire, and Jacobs Legal, PLLC, are hereby ordered to show cau se within ten days why this court should not impose sanctions for filing a Respons e and Appendix that violate the Florida Rules of Appellate Procedure and Rules Regu lating the Florida

Bar. The court reserves jurisdiction to impose such sanctions as may be appropriate and to order further response, including the personal appearanc e of appellant’s counsel, should the written response be deemed insufficient.

Order to show cause issued.