IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC01- LOWER

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					                       IN THE SUPREME COURT
                         STATE OF FLORIDA

                  CASE NO. SC01-
             LOWER TRIBUNAL CASE NO. 99-07778 CA(27)


              In the Matter of a Petition for a Writ
               on Behalf of TIMOTHY W. HARRINGTON,
               Individually, and as Lead Counsel of
             THE LAW OFFICE OF TIMOTHY W. HARRINGTON,

                           Petitioner.


                  German A. Gutierrez, Plaintiff

                                  vs.

               Carlos Antonio Orellano, Defendant.


                 PETITION FOR THE EXERCISE OF THE
             FLORIDA SUPREME COURT’S ALL WRITS POWER



Joseph W. Hatchett                       Miles A. McGrane, III
Florida Bar No. 0034486                  Florida Bar No. 201146
Robert J. Telfer III                     MCGRANE & NOSICH, P.A.
Florida Bar No. 0128694                  2801 Ponce de Leon Blvd.
AKERMAN, SENTERFITT                            12th Floor
 & EIDSON, P.A.                          Coral Gables, Florida
 301 South Bronough Street,              33134
 Suite 200                               Telephone: (305) 442-
4800
P.O. Box 10555                                Facsimile: (305)
442-2339
Tallahassee, Florida 32302-2555
Telephone: (850) 222-3471
Facsimile: (850) 222-8628

Counsel for Petitioner Timothy W. Harrington, Law Office of
Timothy W. Harrington and Allstate Insurance Company

TL019991;1
                     PETITION FOR THE EXERCISE OF THE
                 FLORIDA SUPREME COURT’S ALL WRITS POWER

         Pursuant to Article V, section 3(b)(7) of the Florida

Constitution, Timothy W. Harrington, individually and as Lead

Counsel of The Law Office of Timothy W. Harrington, and

Allstate Insurance Company (collectively, "Petitioner"),

petitions this Court to issue all writs necessary to preserve

the Court’s exclusive jurisdiction to discipline attorneys

under Article V, section 15 of the Florida Constitution.

Petitioner requests that this Court issue a writ directing the

Honorable Paul Siegel to vacate his June 15, 2001 Order

Prohibiting Allstate Attorneys From Using Law Firm Name In

Division 27 Proceedings and his July 20, 2001 Order

Prohibiting Insurance Company In-House Attorneys From Using

Firm Names In Division 27 Proceedings, because these Orders

constitute an unauthorized exercise of the constitutional

power which rests exclusively in this Court.

                            I.   INTRODUCTION

         This proceeding seeks review of two orders that Circuit

Judge Paul Siegel entered against the Petitioner.      The first

order, entered June 15, 2001 in Gutierrez v. Orellano, Miami-

Dade County Circuit Court Case No. 99-0778 CA(27) (the

"Gutierrez Order"), forms the backbone of this Petition.      A

copy of the Gutierrez Order is in the Appendix at Tab "A".

TL019991;1                          2
The Gutierrez Order essentially regulates the manner in which

Timothy W. Harrington and The Law Office of Timothy W.

Harrington conduct the practice of law in Division 27 of the

Miami-Dade County Circuit Court.       In fact, the Gutierrez Order

declares that Mr. Harrington, and attorneys practicing in his

law firm, are in violation of disciplinary rules that this

Court has adopted.      See Gutierrez Order, App. A, at §§ 3-4.

The Gutierrez Order further ponders whether Petitioner

generated or contributed to any false or intentionally

misleading testimony during trials, despite Judge Siegel’s

candid admission that he did not have sufficient facts or

evidence to draw such a conclusion.       See Gutierrez Order, App.

A, at §§ 5-9.

         Petitioner moved for a Stay and Reconsideration of the

Gutierrez Order.      Soon after Judge Siegel entered the

Gutierrez Order, he entered an Order to Show Cause why in-

house attorneys for other insurance companies should be

prohibited from using law firm names in Division 27 of the

Miami-Dade County Circuit Court.       At the hearing on this Show

Cause Order on July 18, 2001, Judge Siegel considered

Petitioner’s Motions for Stay and Reconsideration, and

permitted counsel for Petitioner to be heard on these motions.

Judge Siegel entered an omnibus Order on July 20, 2001, in


TL019991;1                         3
Delgado v. Gonzalez, Miami-Dade County Circuit Court Case Nos.

97-25826 CA(27), 98-12018 CA(27), 99-12680 CA(27), 00-28545

CA(27) and 01-06755 CA(27) (the "Gonzalez Order"), which

regulated the manner in which in-house attorneys at other

insurance companies could conduct the practice of law in

Division 27, and denied Petitioner’s Motions for Stay and

Reconsideration.      A Copy of the Gonzalez Order is in the

Appendix at Tab "B".        Petitioner seeks review of the

Gonzalez Order as well.

                      II.    JURISDICTIONAL STATEMENT

         Article V, Section 3(b)(7) of the Florida Constitution

vests the Court with the power to issue all writs necessary to

the complete exercise of its jurisdiction.        The Court’s "all

writs" power is properly invoked when the Florida Constitution

confers jurisdiction on the Court to undertake or exercise a

direct and discrete responsibility.        See, e.g., Rowe v.

Pinellas Sports Auth., 461 So. 2d 72, 74 (Fla. 1984)

(exercising all writs jurisdiction based on the Court’s

constitutional jurisdiction to review bond validations);

Florida Senate v. Graham, 412 So. 2d 360, 361 (Fla. 1982)

(exercising all writs jurisdiction based on the Court’s

constitutional jurisdiction to review apportionment of the

legislature).


TL019991;1                           4
         Article V, Section 15 of the Florida Constitution vests

the Court with the "exclusive jurisdiction to regulate the

admission of persons to the practice of law and the discipline

of persons admitted."      See also Florida Rules of Professional

Conduct 3-1.2 ("[t]he Supreme Court of Florida has the

inherent power and duty to . . . determine what constitutes

grounds for discipline of lawyers [and] to discipline for

cause attorneys admitted to practice law in Florida . . . .").

An "exclusive" jurisprudential power is one that is possessed

to the exclusion of others.      Seaboard Air Line R. Co. v. Gay,

68 So. 2d 591, 593 (Fla. 1953).        The circuit court’s Gutierrez

and Gonzalez Orders contravene this Court’s exclusive

jurisdiction to regulate the practice of law in Florida.       As

recognized in this Court’s opinion in State ex rel. Chiles v.

Public Employees Relations Comm’n,"[b]ecause the regulation of

attorneys falls within the Court’s ultimate power of review,

the all writs clause could arguably be invoked as a basis for

this Court’s jurisdiction."      630 So. 2d 1093, 1094-95 (Fla.

1994).

         Because the regulation of attorneys falls exclusively

within the power of this Court, a review of the Gutierrez and

Gonzalez Orders can only be obtained in this Court.       In fact,

Judge Siegel fully expected that this Court would review his


TL019991;1                         5
orders, believing that his orders would be appealable to the

Third District Court of Appeal and "rapidly" sent to the Court

through the by-pass certification:

         In the court’s view, the issues dealt with in this
         order are best resolved by the Florida Supreme Court
         . . . because the issues are "of great public
         importance" and "have a great effect on the proper
         administration of justice."

 Gonzalez Order, App. B, at ¶ 6 (emphasis in the original).1

Although his understanding of the appealability of circuit

court Orders was inaccurate2 and he had been specifically so

advised, he recognized the indispensability of review in this

Court.

         Judge Siegel’s recognition in the Gonzalez Order that his

Order is of great importance to the proper administration of



         1
      Judge Siegel did not make a similar proclamation in the
Gutierrez Order, but did acknowledge that The Florida Bar may
need to resolve the problems presented in his Order. See
Gutierrez Order, App. A, at §§ 3-4.
         2
      Judge Siegel suggested that the Gonzalez Order could be
appealed to the Third District Court of Appeal as a final
order, a post-judgment order or as an injunction. See
Gonzalez Order, App. B, at § 6. Neither the Gutierrez nor
Gonzalez Orders: are the conclusion of all judicial labor in
the proceeding; follow any judgment in the lawsuit; or grant
or deny injunctive relief to any party. Judge Siegel’s
suggestion that the Third District can utilize "by pass"
jurisdiction to send his Orders to the Florida Supreme Court
is similarly inefficacious, since certification cannot be
predicated on the false assumption that the order would be
appealable to the Third District Court of Appeal in the first
instance.

TL019991;1                         6
justice is an acknowledgment that the Order does not merely

operate to control proceedings in his "small bailiwick," or

have any effect in other courts or in other divisions of the

Miami-Dade County Circuit Court, as he had suggested in the

Gutierrez Order.      See Gutierrez Order, App. A, at § 3.3   His

assertion that this Court should review these Orders rapidly

is a recognition that the Orders have immediate effects on the

practice of law on a large group of attorneys in Miami-Dade

County, and that the Third District Court of Appeal lacks the

subject matter jurisdiction to address the disciplinary

effects of his Order.

         Petitioner has invoked the jurisdiction of this Court

because Judge Siegel has entered Orders which purport to

regulate the manner in which Petitioner practices law in

circuit court.      Petitioner is entitled to a review of Judge

Siegel’s attempts to exercise disciplinary power over

Petitioner’s practice of law, and other than the Florida

Supreme Court, no forum exists with the authority or


         3
        In fact, this issue is under consideration in at least
one other Florida jurisdiction and is likely to propagate
around the state. In Seminole County, Allstate has received a
Motion to Compel that a private party Plaintiff filed,
requesting the Circuit Court to enjoin the practice of
permitting staff counsel for Allstate (Law Offices of Robert
Soifer) from appearing and holding themselves out as a law
firm. The Motion relies extensively on the Gutierrez Order.
A copy of the Motion to Compel is in the Appendix at Tab "C".

TL019991;1                          7
jurisdiction to undertake that review.

                       III.   STATEMENT OF THE CASE

         On June 11, 2001, Circuit Court Judge Paul Siegel issued

an order to show cause directed to Allstate Insurance Company

("Allstate") in the then-pending Gutierrez case, directing

Allstate to show why the law firm that Mr. Harrington managed-

-The Law Office of Timothy W. Harrington--should not be held

to be in violation of the ethical rules governing members of

The Florida Bar, and for that reason be barred from filing

pleadings and correspondence in Judge Siegel’s division of the

Miami-Dade County Circuit Court which bear the caption of his

law firm "The Law Office of Timothy W. Harrington."      See June

11, 2001 Order to Show Cause, in the Appendix at Tab "D".4

         Judge Siegel conducted a hearing on the June 11, 2001

Show Cause Order on June 15, 2001.      Following that hearing--on

the same day--Judge Siegel entered the Gutierrez Order,

Prohibiting Allstate Attorneys From Using Law Firm Name in

Division 27 Proceedings.       Petitioners thereafter filed

Motions for Stay and Reconsideration of the Gutierrez Order.

In the meantime, Judge Siegel issued similar Show Cause Orders

directed to other law firms, and held a hearing on July 18,


         4
        Judge Siegel issued similar show cause Orders on or
about June 27, 2001 to other law firms with proceedings
pending in his court.

TL019991;1                          8
2001.         At that hearing, Judge Siegel considered Petitioner’s

Motions for Stay and Reconsideration.         Judge Siegel issued the

Gonzalez Order on July 20, 2001, which prohibited other law

firms from using their respective law firm names, and denied

Petitioner’s Motions for Stay and Reconsideration.5

                    IV.   STATEMENT OF THE BACKGROUND FACTS

             Allstate maintains a staff counsel office in Miami that

operates under the name "Law Office of Timothy W. Harrington."

The lawyers in that office are employees of Allstate and their

primary responsibility is to defend insureds for whom Allstate

provides a defense under liability insurance policies.6        Those

lawyers do not solicit representation of clients that Allstate

has not assigned to the office, and neither solicit nor accept

any matters for their insured clients other than defense

pursuant to a policy of insurance.         The office is an

unincorporated division of the Allstate Law and Regulation

Department, and is not an independent entity.         Allstate leases



         5
        Judge Siegel also deferred ruling on whether the
pleading signature blocks must contain a statement of the
relationship of counsel to the insurer, opting instead for a
hopeful decision from The Florida Bar or this Court. See
Gonzalez Order, App. B, at ¶ 4.
         6
        Staff counsel’s defense of insureds is ethically
permissible and does not constitute the unauthorized practice
of law. See In re Rules Governing Conduct of Attorneys, 220
So. 2d 6 (Fla. 1969).

TL019991;1                             9
or owns the premises that the law offices occupy.      Allstate

also pays directly the law offices’ expenses (including

salaries, court and discovery expenses and fees for expert

witnesses).

         Timothy W. Harrington is the lead counsel of the office

and exercises the same supervisory responsibility over the

other attorneys in the office as he would were he a sole

proprietor and they were his employees.7     The lawyers practice

collectively, assisting one another and calling on one another

for assistance.      The office constitutes a "law firm" pursuant

to the definitions in the Florida Rules of Professional

Conduct.8     The office uses letterhead, business cards and

signs describing it as "Law Office of Timothy W. Harrington."

Immediately under that designation is the description:

                              STAFF COUNSEL
                       Allstate Insurance Company




         7
      See Florida Rules of Professional Conduct 4-5.1(a) ("[a]
partner in a law firm shall make reasonable efforts to ensure
that all lawyers in the firm conform to the Rules of
Professional Conduct."); 4-5.1(b) ("[a] lawyer having direct
supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to
the Rules of Professional Conduct.").
         8
      In the comments to Florida Rule of Professional Conduct
4-1.10, the term "firm" is defined as including "lawyers
employed in the legal department of a corporation . . . ."

TL019991;1                         10
                          Encompass Insurance.9

         Allstate’s Florida claims offices send cases to the staff

counsel office for defense.      The staff counsel office screens

such cases to determine which cases it should assign to

outside law firms.      The staff counsel office will identify any

case with an active reservation of the right to deny indemnity

coverage on the initial suit referral form that the claims

office provided, and      the staff counsel will assign the case

to an outside law firm as soon as it learns of the

reservation.      Staff counsel will assign to an outside law firm

any case involving claims of one Allstate insured against

another or otherwise involving a likelihood of some conflict

of interest.      Any case involving a probability of liability in

excess of the applicable policy limit will be assigned to an

outside law firm promptly after that likelihood is recognized.

         In the initial representation letter, Petitioner clearly

states to all insured clients that the attorney is an employee

of Allstate.10     That letter also states that, if the insured



         9
      Encompass Insurance is a division of Allstate, and for
purposes of this Petition, this Court should consider the term
"Allstate" to include both Allstate Insurance Company and
Encompass Insurance.
         10
       An example of an initial representation letter is in
the Appendix at Tab "E". Petitioner has redacted certain
portions of this letter for confidentiality purposes.

TL019991;1                         11
client has or may have an affirmative claim against the

plaintiff in the lawsuit, the staff counsel office will not

handle the claim and directs the insured to retain personal

counsel to pursue the claim.      If a staff counsel lawyer learns

of any pending traffic citation in connection with an

accident, or any other matter in which legal assistance may be

useful but is separate from the defense Allstate provides

pursuant to the policy, the staff counsel will:      (1) alert the

client to the possible need for legal services (if the client

is not already aware); and (2) inform the client that the Law

Offices of Timothy W. Harrington will not provide those

services.

         Staff counsel prepare and file pleadings connoting "Law

Office of Timothy W. Harrington" as representing the insured

client.      They do not disclose the relation of the office to

Allstate in the pleadings.      As explained more fully in the

argument section below, Petitioner did not disclose this

relationship because it is ordinarily not material to any

matter before the court in which the pleading is filed, and

omitting any mention of it helps effectuate the public policy

against informing juries of the involvement of insurance.         See

Fla. Stat. § 627.4136; Beta Eta House v. Gregory, 237 So. 2d

163 (Fla. 1970).


TL019991;1                         12
         On June 11, the trial court, on its own initiative,

entered an Order to Show Cause in Gutierrez v. Orellano on the

question of whether staff counsel for Allstate should be

prohibited from appearing and conducting litigation in

Division 27 of the circuit court under the name "Law Office of

Timothy W. Harrington."        See Order to Show Cause, App. D.

After a hearing on the show cause order on June 15, in which

counsel for Allstate and The Florida Bar participated, the

court issued the Gutierrez Order (on the afternoon of June

15), prohibiting Allstate lawyers from          using the law firm

name in Division 27 proceedings.          Petitioner filed motions for

Reconsideration and Stay of the Gutierrez Order.          On July 20,

2001, the court issued the Gonazlez Order which, inter alia,

denied Petitioner’s Motions for Reconsideration and Stay.

                          V.    RELIEF REQUESTED

         Petitioner respectfully requests that this Court issue

writs directing Judge Siegel to vacate his Orders of June 15,

2001 and July 20, 2001 (the Gutierrez and Gonzalez Orders) as

constituting an unauthorized exercise of the constitutional

power that rests exclusively in the Florida Supreme Court.

Petitioner further requests that this Court affirmatively hold

that the use of a law firm name for staff attorneys for an

insurance company is not deceptive and is approved for use in


TL019991;1                           13
legal proceedings in all courts of Florida.

                              VI.   ARGUMENT

         Judge Siegel’s Gutierrez and Gonzalez Orders invade the

Florida Supreme Court’s exclusive jurisdiction to discipline

attorneys under Article V, section 15 of the Florida

Constitution.     In addition, no controlling precedent supports

Judge Siegel’s conclusion that the designation in letterhead

and pleadings of "Law Office of Timothy W. Harrington" is

violative of the Florida Rules of Professional Conduct.       Judge

Siegel further augments this error in the Gutierrez Order by

suggesting that Petitioner may have generated or contributed

false or intentionally misleading testimony during trials,

despite his candid admission that he did not have sufficient

facts or evidence to draw such a conclusion.     Petitioner

respectfully requests that this Court issue all writs

necessary pursuant to Article V, section 3(b)(7) of the

Florida Constitution, to preserve its exclusive jurisdiction

to discipline attorneys.




TL019991;1                          14
         A.   The Letterhead Does Not Violate
              Florida Rules of Professional Conduct Because
              It Discloses Fully the Status of Attorneys
              As Full-Time Employees of Allstate.

         A cornerstone of Judge Siegel’s Gutierrez Order is that

the letterhead that Petitioner utilizes is violative of the

Florida Rules of Professional Conduct.      See Gutierrez Order,

App. A, at ¶¶ 2-3; see also Gonzalez Order, App. B, at ¶ 4.11

In the Gutierrez Order, Judge Siegel relies on Florida Bar

Ethics Opinion 98-3, and the Tennessee Supreme Court’s opinion

in In re Youngblood, 895 S.W. 2d 322 (Tenn. 1995) to support

this conclusion.      In the Gonzalez Order, Judge Siegel

supplements his conclusion with additional authority from New

Jersey and Indiana.      See Gonzalez Order, App. B, at ¶ 3.

Judge Siegel is incorrect in his conclusion that Petitioner’s

letterhead violates the Florida Rules of Professional Conduct,

and his reliance on a Florida Bar Ethics Opinion and

inapposite caselaw from foreign jurisdictions only undermines

his conclusion.

         1.   Petitioner’s Letterhead is not Misleading and
              Complies with Florida Rules of Professional Conduct.

         Petitioner’s letterhead represents that the lawyers in

the staff counsel office function as a firm, that Timothy W.


         11
       A copy of the letterhead from the Law Office of Timothy
W. Harrington is attached as Exhibit B to the Gutierrez Order,
App. A.

TL019991;1                         15
Harrington is the lead counsel of that firm and that the firm

serves as staff counsel to Allstate.        All of these

representations are accurate.      The Florida Rules of

Professional Conduct recognize that lawyers in a corporate

legal department constitute a firm and are subject to the same

ethical duties of supervision as those practicing in a

partnership or other form of business organization.        As

mentioned previously, the Comments to Florida Rule of

Professional Conduct 4-1.10 define the term "firm" to include

"lawyers employed in the legal department of a corporation or

other organization . . . ."      Further, Timothy W. Harrington is

the lead counsel of the office and exercises the same

supervisory authority over the other attorneys in the office

as he would were he a sole proprietor and they were his

employees.      See Florida Rules of Professional Conduct 4-

5.1(a); 4-5.1(b).

         Florida Rule of Professional Conduct 4-7.10 governs the

manner in which attorneys in Florida may hold themselves out

to the general public.      Rule 4-7.10(a) prohibits the use of

false, misleading or deceptive firm names, letterheads or

other professional designations.        Rule 4-7.10(b), however,

permits the use of "trade names" if the name is not deceptive,

does not imply a connection with a government agency or with a


TL019991;1                         16
public or charitable legal services organization, does not

imply that the firm is something other than a private law

firm, or is not otherwise in violation of Rule 4-7.2(b)(1)

(concerning "Statements About Legal Services").        Rule 4-

7.10(f) allows that lawyers may state or imply that they

practice in a "partnership or authorized business entity" only

when that is the fact.        Additionally, the Comments to Rule 4-

7.10 state that "[a] firm may be designated by the names of

all or some of its members, by the names of deceased members

where there has been a continuing succession in the firm’s

identity, or by a trade name such as ‘Family Legal Clinic.’"

         Petitioner’s letterhead does not conflict with Rule 4-

7.10.        When read in its entirety, Rule 4-7.10's purpose is to

restrict the manner in which traditional law firms may

identify themselves.        While nothing in Rule 4-7.10

specifically endorses the Petitioner’s letterhead, nothing in

the rule forbids it.        In fact, Petitioner’s letterhead clearly

discloses its trade name and the staff counsel’s relationship

to Allstate.        Judge Siegel’s finding that Petitioner’s

letterhead is misleading is clearly erroneous.

         The letterhead discloses that the firm is "Staff Counsel"

to Allstate.        The letterhead cannot be read to represent that

the firm is independent of Allstate, because the existence of


TL019991;1                           17
a relationship is fully disclosed.        The term "staff counsel"

is commonly used to denote an employment relationship and that

meaning is widely recognized in the legal community.

Moreover, because the lawyers in the staff counsel office

function as a firm, are subject to supervision within the

office and share confidences among themselves, it could be a

misrepresentation to hold themselves out to the public as if

they were solo practitioners.

         2.   Judge Siegel erred in finding that Petitioner’s
              letterhead was misleading and in relying on
              unpersuasive authority to reach this conclusion.

         Judge Siegel, at the show cause hearing for Gutierrez on

June 15, 2001, undertook an evidentiary determination based on

the traditional law firm indicia to determine whether the Law

Office of Timothy W. Harrington was operating as a partnership

or professional corporation.     Among his findings was that the

staff counsel office "has no employees, does not file tax

returns, has no occupational license, no bank account, does

not buy computers, copiers, telephones or office supplies."

Gutierrez Order, App. A, at ¶ 2.        Judge Siegel based his

conclusion that the Petitioner’s letterhead violates Florida

Bar Rules in large part on these findings.        This inquiry into

whether the Law Office of Timothy W. Harrington was a

partnership or business entity ignores the clear and full


TL019991;1                         18
disclosure on the Petitioner’s letterhead that the law firm

was "STAFF COUNSEL, Allstate Insurance Company."

         The letterhead discloses that the firm is staff counsel

to Allstate and cannot be read to represent that the firm is

independent of Allstate, because the existence of a

relationship is fully disclosed.         The term "staff counsel" is

commonly used to denote an employment relationship and that

meaning is widely understood in the legal community.         Indeed,

the New York State Bar Association recently opined that "[a]

group of lawyers who are salaried employees of an insurance

company and whose practice is exclusively in defense of the

company’s policyholders may hold themselves out as a law firm

if (a) they undertake to act consistently with the

professional responsibilities of a law firm . . . and (b) they

provide a clear explanation in all their public communications

that they are employees of the insurance company."         New York

State Bar Ass’n Comm. on Pof’l Ethics, Op. 726, 2000 WL 567960

(2000).       The disclosure on the letterhead for the Law Office

of Timothy W. Harrington therefore could not mislead the court

or the general public.12


         12
        The "general public" may never see this letterhead,
because lawyers in the Law Office of Timothy W. Harrington
only represent their insured clients. The only way anyone
other than Allstate can become a client of the staff counsel
office is to have a damage-producing incident while covered by

TL019991;1                          19
         In fact, it is this disclosure that forms the analysis of

whether the letterhead is misleading.      In Bar Ethics Opinion

98-3, which Judge Siegel relied upon in concluding that the

letterhead was violative of the Florida Rules of Professional

Conduct, the Professional Ethics Committee stated "the

relationship between the attorney and the insurer should be

fully disclosed to the client and appear on the letterhead and

business card of the attorney."      Of course, this is consistent

with Rule 4-7.10, which prohibits false, misleading or

deceptive letterhead.      Notwithstanding Petitioner’s argument

below that Judge Siegel erred in relying on Opinion 98-3,

Petitioner’s letterhead does comply with Opinion 98-3 because

it clearly discloses the relationship between the Law Office

of Timothy W. Harrington and Allstate.

         Judge Siegel, however, mistakenly relied on Bar Ethics

Opinion 98-3, as well as Florida Bar Staff Opinion 22624 (Aug.

14, 2000), in concluding that the Petitioner violated ethical

requirements governing lawyers.      Ethics opinions and staff


an Allstate insurance policy, be sued as a result, tender the
defense to Allstate and have the defense assigned to the staff
counsel office. Ordinarily, the first item a client would
receive from the staff counsel office is a notice that
Allstate has assigned the staff counsel to handle the defense.
Any correspondence would be on this letterhead, which
discloses the relationship between the staff counsel and
Allstate. The text of the initial letter discloses that the
assigned lawyer is an Allstate employee. See App. E.

TL019991;1                         20
opinions are non-binding authority, and provide no legal

efficacy for disciplinary opinions or court action.       The

Florida Bar’s Board of Governors has adopted The Florida Bar

Procedures for Ruling on Questions of Ethics, to "govern the

manner in which advisory ethics opinions are issued and

reviewed by The Florida Bar."      Rule 1.   Rule 9 describes

opinions of the Professional Ethics Committee as "advisory

only," and it prohibits their use as a "basis for action" even

by the agencies charged with enforcing the disciplinary rules

(except on application of the respondent in disciplinary

proceedings).

         The advisory nature and restricted use of opinions that

the Ethics Committee and its staff issue reflect the Bar’s

recognition that the Supreme Court alone is responsible for

defining and regulating attorney conduct which is subject to

discipline, through the promulgation of rules and decisions.

Expressions of opinion through the Bar or its staff lack the

procedural safeguards which surround the promulgation of

rules, and which inhere in the appellate process through which

the Court sets policy in this area through its decisions.       The

purely advisory nature of opinions of the Ethics Committee,

such as Ethics Opinion 98-3, necessarily means that courts may

not use those opinions as a basis for disciplinary action.


TL019991;1                         21
Moreover, no court, other than the Florida Supreme Court, has

independent disciplinary authority.       See, e.g., Smith v.

Bateman Graham, P.A., 680 So. 2d 497, 499 (Fla. 1st DCA)

(holding that Bar ethics opinions "can provide no basis for a

private cause of action" because they are advisory only),

review dismissed, 680 So. 2d 498 (Fla. 1996).

         A more forceful limitation applies to Staff Counsel

Opinion 22624 that counsel to the Ethics Committee of the Bar

issued.       Rule 2(c) of the Board of Governor’s Rules governing

ethics opinions states that advisory ethics opinions that the

staff issue are "confidential," except in situations described

in Rule 9 (which are not applicable here).       The confidential

and non-public nature of Staff Advisory Opinion 22624 is

reflected on its face in a stamp stating that it may not be

considered as applicable to situations or persons other than

the law firm to which it was directed.       Bar counsel chose, for

reasons unknown to Petitioner, to provide a copy of Staff

Advisory Opinion 22624 to the court at the June 15, 2001 show

cause hearing.13      The court erred in relying on this private

opinion, as well as Opinion 98-3, in reaching its conclusion.

         The court also relied on opinions from foreign


         13
       In fact, Bar Counsel breached the Bar’s own requirement
of confidentiality when it volunteered to the court the
existence of the opinion.

TL019991;1                          22
jurisdictions to support its conclusion.       In the Gutierrez

Order, Judge Siegel relied on In re Youngblood, 895 S.W. 2d

322 (Tenn. 1995), in which the Tennessee Supreme Court

considered the propriety of attorneys practicing under a name

implying that the staff counsel office was "a separate and

independent law firm" with no disclosure of the relationship

to the insurer.      The court observed that the staff counsel

office "is not a ‘separate and independent law firm.’       The

representation that the attorney-employee is separate and

independent from the employer is, at least false, misleading

and deceptive."      Id. at 331.   The court concluded that holding

out in this manner was prohibited.

         Youngblood, however, did not consider a staff counsel

letterhead like the one that Petitioners use, which holds the

office out as a law firm but clearly discloses its

relationship to the insurer.       The opinion also fails to

indicate whether any of the materials that staff counsel used

disclosed staff counsel’s relationship to the insurer.         In

short, Youngblood provides no analysis on the issue of whether

a letterhead that clearly discloses staff counsel’s

relationship to the insurer is misleading or otherwise runs

afoul of ethics rules.

         In the Gonzalez Order, Judge Siegel relies on two other


TL019991;1                          23
cases from foreign jurisdictions to support his conclusion.

These cases, however, are inapposite.     In In re Weiss, Healey

& Rea, 536 A.2d 277 (N.J. 1988), the New Jersey Supreme Court

considered the propriety of a staff counsel office practicing

under the name "Weiss, Healey & Rea," without any affirmative

disclosure of the employment relationship with the insurer.

The court concluded that this choice of name violated ethical

standards, but appointed a special committee to fashion an

appropriate statement that would properly convey the nature of

staff counsel practice.      See id. at 270.   The court’s special

committee, however, found no public harm or deception in the

use of a law firm name, even without disclosure of the

affiliation, as long as the attorneys shared responsibility

and liability for their policyholder clients.       See Report of

the Ad Hoc Supreme Court Committee on Law Firm Names, 125

N.J.L.J. 316 (1990).     Pursuant to this recommendation, the New

Jersey Rules of Professional Conduct were amended to permit

use of a partnership-like name, even without disclosure of the

relationship with the insurer, so long as the named lawyers

shared the responsibility and liability for representing

insureds.      See New Jersey Rule of Professional Conduct 7.5(d).

         The Gonzalez Order also relied on Cincinnati Ins. Co. v.

Wills, 717 N.E.2d 151 (Ind. 1999), where the Indiana Supreme


TL019991;1                         24
Court held that the use of a law firm name, with a disclosure

of the law firm’s affiliation with an insurer, to be improper.

The court found two aspects of the disclosure troublesome:

the law firm’s failure to disclose its affiliation on its

office door, and the wording of the disclosure, which was

susceptible of being read as meaning that the insurance

company was not in fact the law firm’s only employer.

Obviously, these concerns are not present in this matter.

         Other jurisdictions have considered this issue and have

approved of the practice of allowing staff counsel to hold

itself out as a law firm as long as staff counsel disclose

this relationship.      See, e.g., California St. Bar Standing

Comm. on Prof. Resp. & Conduct, Formal Op. 187-91, 1987 WL

109707, at *6 (the letterhead used must indicate the

relationship between the firm and the Law Division); New York

St. Bar Op., 2000 WL 567960, at *2 (2000) ("[w]e concur with

those authorities that permit the use of a law firm name as

long as it is accompanied by an explanation that the lawyers

are employees of the [insurance company]"); Oregon St. Bar

Ass’n Formal Op., 1998-153, 1998 WL 717727 (quoting and

following California 1987-91); Pennsylvania Bar Ass’n Comm. on

Legal Ethics & Prof. Resp., Formal Op. 96-196 (April 19, 1997)

("recommended practice [is] to clearly denote the nature of


TL019991;1                         25
the association [among the staff counsel lawyers] and any

affiliation with an insurer on the letterhead itself or in the

text of the initial letter to the insured"); Oklahoma Bar

Ass’n Legal Ethics Comm., Advisory Op. 309, 1998 WL 384612

(Mar. 27, 1998) ("the employee status of the staff attorney

must clearly be disclosed to the client at the outset of the

representation.").     As Petitioners clearly disclose their

relationship to Allstate on their letterhead, they comply with

the Florida Rules of Professional Ethics, Ethics Opinion 98-3

and the jurisprudence of other jurisdictions that have

considered this precise question.

         B.   Judge Siegel’s Orders violate Florida’s
              strong public policy in favor of allowing
              attorneys to represent their clients and
              insurance companies to defend their insureds.

         Judge Siegel’s prohibitions in the Gutierrez and Gonzalez

Orders also violate Florida’s strong public policy in favor of

allowing attorneys to represent their clients.     Florida Rule

of Judicial Administration 2.060 (a) authorizes all members of

The Florida Bar to appear in all of the courts of Florida as

counsel of record for their clients.     And, this Court has

specifically held that attorneys for insurance companies are

authorized to represent insured defendants in legal

proceedings.      See In re Rules Governing the Conduct of

Attorneys in Florida, 220 So. 2d 6 (Fla. 1969).

TL019991;1                         26
         It is interesting to note that this Court rendered the

Rules Governing Attorneys opinion pursuant to its original

jurisdiction, as the opinion involved the approval of the

predecessor to the Florida Rules of Professional Conduct.         The

Court held that, after The Florida Bar’s challenge in 1969 to

prohibit the delivery of legal services through staff counsel,

that staff attorneys of insurance companies have the right to

represent the companies’ policyholders in Florida’s courts to

the same extent as attorneys engaging in the private practice

of law.

         The Court held that the alleged "conflict of interest"

problem which prompted the Bar’s petition is identical whether

staff counsel or private counsel represent a policyholder.

The Court further held that the "moral considerations" which

inhere in The Florida Bar’s protection of "the profession

against ethical deviations . . . should not be exploited so as

to develop a double standard of ethics for salaried and non-

salaried lawyers."         Rules Governing Attorneys, 220 So. 2d at

8-9.         Staff counsels’ use of a law firm name does not

implicate any conflict of interest issues, just as private

attorneys’ use of law firm name does not implicate any

conflict of interest issues.        Judge Siegel’s Orders, however,

seek to revive this exploitation between salaried and non-


TL019991;1                            27
salaried lawyers, although he did not base his Orders on any

conflict of interest issues.

         The Florida Bar has never suggested that staff attorneys’

use of a law firm setting of name is per se a violation of the

Florida Rules of Professional Conduct.      In fact, The Florida

Bar recently put before this Court a proposal that would

recognize that insurance company staff attorneys’ use of law

firm settings and names causes no harm to the public or to the

administration of justice.

         C.   Judge Siegel’s Orders may require Petitioners
              to disclose to a jury the existence of
              insurance, which is normally irrelevant.

         In the Gutierrez Order, Judge Siegel held that the

pleading signature block--which indicated that the Law Office

of Timothy W. Harrington employed the particular staff counsel

on the pleading--also violated Florida Rules of Professional

Ethics.       See Gutierrez Order, App. A, at ¶4.   In the Gonzalez

Order, Judge Siegel apparently receded from this stance as to

the other insurance companies, deferring on this issue until

either The Florida Bar or this Court has issued an opinion on

the subject.       See Gonzalez Order, App. B, at ¶ 5.   In

Gutierrez, Judge Siegel also discussed--without any supporting

evidence--that a defense expert’s response, on cross-

examination, that The Law Office of Timothy W. Harrington, as


TL019991;1                          28
opposed to Allstate, employed the expert may have generated or

contributed to false or intentionally misleading testimony.

See Gutierrez Order, App. A., at ¶¶ 5-9.

         1.   The Gutierrez Order’s requirement that staff counsel
              disclose their affiliation to the insurer on the
                   pleadings could disclose the existence of
insurance.

         Florida has determined that juries normally should not be

told that a defendant has insurance coverage.      In Beta Eta

House v. Gregory, 237 So. 2d 163 (Fla. 1970), this Court held

that:

         The existence or amount of insurance coverage has no
         bearing on the issues of liability and damages, and
         such evidence should not be considered by the jury.

Id. at 165.      A court may permit jurors to know of insurance,

however, if a "justiciable issue relating to insurance"

exists, such as issues of coverage or the application or

interpretation of an insurance policy.      See Stecher v.

Pomeroy, 253 So. 2d 421, 424 (Fla. 1971).

         The Florida Legislature codified the Beta Eta Court’s

rationale in section 627.4136, Florida Statutes, the non-

joinder statute.      In Canal Ins. Co. v. Redd, 666 So. 2d 888

(Fla. 1996), this Court held that section 627.4136 was a

declaration of the public policy of Florida.      The avoidance of

any mention of insurance in trial proceedings, except when

insurance is a justiciable issue, is an insurance company’s

TL019991;1                         29
substantive right.      See VanBibber v. Hartford Accident &

Indem. Ins. Co., 439 So. 2d 880, 883 (Fla. 1983).

         Although the mere mention of insurance is not a per se

error automatically resulting in a mistrial, and can be the

subject of a curative instruction, its prejudicial effect is

ever-present and courts carefully police it.      See, e.g., South

Motor Co. of Dade County v. Accountable Constr. Co.,707 So. 2d

909, 911 (Fla. 3d DCA 1998) ("[i]t has long been the law of

this state that unless the existence or amount of insurance

coverage has direct relevancy to a matter at issue, it is not

a proper matter for the jury’s consideration . . . ."); Gold,

Vann & White, P.A. v. DeBerry, 639 So. 2d 47, 54 (Fla. 4th DCA

1994) ("[i]t is hornbook law that a jury should not learn of

the existence of insurance coverage or insurance limits.");

Nicaise v. Gagnon, 597 So. 2d 305, 306 (Fla. 4th DCA)

(affirming an order for a new trial based on a statement that

plaintiff’s counsel made during closing argument that the jury

need not "worry whether the defendant will contribute a dime

of money."), review denied, 604 So. 2d 482 (Fla. 1992).

         Judge Siegel’s Orders cross the line drawn by Beta Eta

House and section 627.4136, through requiring (or at the very

least suggesting) that staff counsel disclose on court

pleadings their relationship to their insurer.     As it is


TL019991;1                         30
normal for juries to see pleadings bearing the names of

counsel (and their law firms), Judge Siegel’s Orders could

require disclosure of the existence of insurance when it is

not always possible or remembered to redact the employment

relationship information.

         2.   A defense expert’s response on cross-examination
              that he or she is employed by staff counsel is not
              false or intentionally misleading testimony.

         In the Gutierrez Order, Judge Siegel analyzes whether a

defense expert’s response on cross-examination that he or she

is employed by staff counsel may be false or intentionally

misleading testimony.      Judge Siegel candidly admits that "this

court is not presently prepared to answer [this question] due

to lack of knowledge of the detailed facts," but then analyzes

this issue in detail.      See Gutierrez Order, App. A, at ¶¶ 5-9.

Judge Siegel’s suggestion that defense experts state that an

insurance company has employed them is not only incorrect, but

as discussed above, Florida law generally frowns upon the

disclosure to the jury of the existence of insurance.

         An expert’s response that the Law Firm of Timothy W.

Harrington was his or her employer is neither false nor

misleading testimony.      Judge Siegel states in Gutierrez that

it may be false or intentionally misleading because the expert

states that he or she is employed by a "fictitious independent


TL019991;1                         31
law firm" that does not exist.      See Gutierrez Order, App. A,

at ¶ 5.      However, as discussed in great detail in section VI

(A), staff counsel’s holding themselves out as a law firm or

trade name does not run afoul of the Florida Rules of

Professional Ethics.      Thus, Judge Siegel’s premise is

incorrect.

         The identity of the employer of the defense counsel bears

no relevancy to the litigated issues of liability and damages

in an automobile negligence case, and would thus be

inadmissible under the authorities mentioned above.      And,

while plaintiff’s counsel may explore the issues of bias on

cross-examination of an expert that defense counsel retained,

such expert testimony does not, absent unusual circumstances,

open the door to inquiries injecting into the trial matters of

the defendant’s liability insurance coverage.      Such inquiry is

contrary to established caselaw and clearly stated legislative

and judicial pronouncement of public policy against disclosure

of liability insurance to the jury.

         Ordinarily, all the jury needs to know about the expert’s

bias is that defense counsel is paying the expert to testify

for the defendant.      Plaintiff’s counsel could also properly

inquire if the expert has testified for the same defense law

firm in previous matters.      Any inquiry about an affiliation


TL019991;1                         32
with an insurance company would only potentially become

relevant if the expert had contact with the insurance company.

For example, if the expert had testified for another staff

counsel office of Allstate, that office could be named and the

jury informed that it is affiliated with the Law Office of

Timothy W. Harrington.      This would allow the jury to evaluate

bias without the prejudicial introduction of the existence of

an insurance company.      Unless Allstate’s involvement was

necessary to allow the jury to fairly adjudicate the

plaintiff’s claim, such disclosure would violate the

nonjoinder statute and caselaw holding that the existence of

insurance should not normally be revealed to a jury.

                            VII.   CONCLUSION

         The Law Office of Timothy W. Harrington is not a

"fictitious independent law firm," as Judge Siegel’s Orders

suggest.      Judge Siegel’s Gutierrez and Gonzalez Orders,

however, conclude that the Petitioners’ holding themselves out

as this "fictitious independent law firm" is violative of the

Florida Rules of Professional Ethics and the opinions of The

Florida Bar’s Ethics Committee or its staff.      Not only is

Judge Siegel incorrect in his assessment, but he has invaded

this Court’s "exclusive jurisdiction to regulate the admission

of persons to the practice of law and the discipline of


TL019991;1                         33
persons admitted."      Florida Constitution, Article V, section

15.

         Therefore, Petitioner respectfully requests that this

Court exercise its power pursuant to Article V, section 3 to

issue all writs necessary to the complete exercise of its

jurisdiction, and vacate the Gutierrez and Gonzalez Orders.

Petitioner further requests that this Court affirmatively hold

that the use of a law firm name for staff attorneys of an

insurance company which contains the name of the managing

attorney, such as "Law Office of Timothy W. Harrington," is

not deceptive, and is approved for use in legal proceedings in

all courts of Florida, including on pleadings and

correspondence, so long as all attorneys in the firm are staff

attorneys or employees of their insurance company employer.




TL019991;1                         34
         Respectfully submitted,



                             ______________________________________
                             Joseph W. Hatchett
                             Florida Bar No. 0034486
                             Robert J. Telfer III
                             Florida Bar No.: 0128694
                             AKERMAN, SENTERFITT & EIDSON, P.A.
                             301 South Bronough Street, Suite 200
                             Post Office Box 10555
                             Tallahassee, Florida 32302-2555
                             Telephone:   (850) 222-3471
                             Facsimile:   (850) 222-8628


                             Miles A. McGrane, III
                             Florida Bar No. 201146
                             MCGRANE & NOSICH, P.A.
                             2801 Ponce de Leon Boulevard
                             12th Floor
                             Coral Gables, Florida 33134
                             Telephone: (305) 442-4800
                             Facsimile: (305) 442-2339

                             Counsel for Petitioner




TL019991;1                         35
                     CERTIFICATE OF SERVICE

     I HEREBY CERTIFY that a copy of this Petition was sent
via U.S. mail to Honorable Paul Siegel, Circuit Court Judge of
the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida, 73 West Flagler Street, Room 412, Miami, Florida,
33130, and to the parties named below on this ________ day of
August, 2001.

Dennis L. Durkin, Esq.                Jose M. Francisco, Esq.
Robert W. Thiehelm, Jr., Esq.         Jose M. Francisco, P.A.
Leigh Anne Kasias, Esq.               Suite 210
Baker & Hostetler LLP                 3899 N.W. 7th Street
SunTrust Center, Suite 2300           Miami, FL 33126
200 South Orange Avenue               Co-counsel for Jorge Delgado
Orlando, FL 32801-3432                and Marie del Carmen Delgado
Counsel for Progressive
Southeastern Insurance Company        W. Donald Cox, Esq.
                                      Hala A. Sandridge, Esq.
Russell A. Dohan, P.A.                Fowler, White, Gillen, Boggs,
Suite 1210                            Villareal and Banker, P.A.
777 Brickell Avenue                   Suite 1700
Miami, FL 33131                       501 East Kennedy Boulevard
Co-counsel for Jorge Delgado          Tampa, FL 33602
and Maria del Carmen Delgado          Counsel for Nationwide Mutual
                                      Insurance Company
Arthur J. England, Jr., Esq.
Greenberg Traurig, P.A.               Michael I. Libman, Esq.
1221 Brickell Avenue                  Suite 5
Miami, FL 33131                       2439 N.W. 7th Street
Counsel for Luis E. Ordoñez           Miami, FL 33125
                                      Counsel in Gutierrez v.
Scott J. Feder, Esq.                  Orellano
Scott J. Feder, P.A.
Suite 402                             Richard A. Sherman, Esq.
4649 Ponce de Leon Boulevard          Richard A. Sherman, P.A.
Coral Gables, FL 33146                Suite 302
Counsel for Stefan Grzymski           1777 South Andrews Avenue
                                      Ft. Lauderdale, FL 33316
                                      Co-counsel for Onebeacon
                                      Insurance Company




TL019991;1                       36
Jeffrey C. Fox, Esq.                  James G. Gilmour, Esq.
Greenspoon, Marde, Hurschfeld,        Cindy Post Massion, Esq.
Rafkin, Ross & Berger, P.A.           Law Office of James G. Gilmour
Suite 700                             Museum Tower, Suite 2800
100 West Cypress Creek Road           150 West Flager Street
Ft. Lauderdale, FL 33309              Miami, FL 33130
Counsel in Bernstein & Budget         Counsel for Bernard Gran and
Rent-A-Car Systems, Inc.              Marissa Ilene Gran

David L. Deehl, Esq.                  Edward A. Moss, Esq.
Deehl & Carlson                       Kathleen M. O’Connor, Esq.
Suite 1007                            Michael G. Moore, Esq.
2600 Douglas Road                     Shook, Hardy & Bacon, L.L.P.
Coral Gables, FL 33134                2400 Miami Center
Counsel for Evelyn Goodman            201 South Biscayne Boulevard
                                      Miami, FL 33131
Ross B. Gampel, Esq.                  Counsel for United Services
Klemick & Gampel, P.A.                Automobile Association
1953 S.W. 27th Avenue
Miami, FL 33145                       Luis E. Ordoñez, Esq.
Counsel for Jesus Vargas              Luis E. Ordoñez & Associates
                                      Suite 1800
R. Wade Adams, Esq.                   SunTrust International Center
Adams & Adams                         One S.E. 3rd Avenue
5th Floor                             Miami, FL 33131-1704
66 West Flager Street                 Counsel for Eduardo Nogueiras
Miami, FL 33130-1807
Counsel in Gutierrez v.               Vince J. Rio, III, Esq.
Orellano                              Suite 344
                                      315 South Calhoun Street
Robert A. Glassman, Esq.              Tallahassee, FL 32301-1837
Law Offices of Robert A.              Counsel for Amicus Florida
Glassman                              Insurance Council
Suite 3400
2101 West Commercial Boulevard        Dominic L. Brandy, Esq.
Ft. Lauderdale, FL 33309-3068         One Datran Center, Suite 1000
Co-counsel for Onebeacon              9100 South Dadeland Boulevard
Insurance Company                     Miami, FL 33156
                                      Counsel in Curtin v. Club
                                      Atlantis Condominium
                                      Association, Inc.



                                      Kenneth L. Marvin, Esq.

TL019991;1                       37
Chief Disciplinary                   J. Anthony Boggs, Esq.
Counsel/Tallahassee                  Division Director,
The Florida Bar                      Legal Division
650 Apalachee Parkway                The Florida Bar
Tallahassee, FL 32399-2300           650 Apalachee Parkway
                                     Tallahassee, FL 32399-2300
Tony P. Korvick, Esq.
President                            Arlene K. Sankel, Esq.
Dade County Trial Lawyers            Chief Disciplinary
Association                          Counsel/Miami
c/o Porter & Korvick                 Carlow A. Leon, Esq.
Suite 2460                           The Florida Bar
Two South Biscayne Boulevard         Suite M100
Miami, FL 33131                      444 Brickell Avenue
                                     Miami, FL 33131-2404
Robert T. Lithman, Esq.
5th Floor                            William G. Edwards, President
2250 S.W. 3rd Avenue                 Dade County Defense Bar
Miami, Florida 33129                 Association
Counsel for Irmtraud Kurten          c/o Marlow, Connell, Valerium,
                                     Abrams, Adler & Newman, P.A.
                                     2950 S.W. 27th Avenue, Suite
                                     200
                                     Miami, FL 33133-3765




______________________________________
                              Robert J. Telfer III


                     CERTIFICATE OF COMPLIANCE

     I hereby certify that this brief was prepared in Courier
New, 12-point font, in compliance with Rule 9.210(a)(2) of the
Florida Rules of Appellate Procedure.




TL019991;1                      38

				
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