The Great Recession’s effect on the judiciary in Florida has been profound.  While Tallahassee was “tightening the belt” by slashing funding, cutting judicial salaries, and mandating 3% contributions to an already well-funded public employee pension system (see Scott v. Williams, 107 So. 3d 379 (Fla. Jan. 17, 2013)), dockets in both civil and criminal courts grew longer and longer.  In civil court, foreclosure filings ballooned as the housing market imploded.  And in criminal court, as joblessness increased, so did the number of defendants. 

Paralyzed by budget cuts and hiring freezes, the Public Defender’s office for the Eleventh Judicial Circuit (Miami-Dade County) was unable to respond to the increased workload brought by the ever growing number of filings.  Fearing that the office’s excessive workload and underfunding had diminished the quality of representation such that it could no longer meet its legal and ethical obligations to criminal defendants, in 2009 the Public Defender filed motions in 21 cases asking to be discharged.  The trial court permitted the Public Defender to decline future appointments in third-degree felony cases.

In State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), the State appealed this trial court order granting prospective withdrawal.  The Third District Court of Appeal reversed the trial court and held that in order for the Public Defender to withdraw from an appointed representation based on conflict of interest, an individualized showing must be made on a case-by-case basis — aggregate relief was not available.  Further, the Third DCA held that an excessive caseload alone was not a conflict of interest under § 27.5303 (2007).  With section 27.5303(1)(d), the legislature sought to prevent this very scenario by providing that:

In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.

Then in 2010, an Assistant Public Defender sought to withdraw from representing a single defendant based on an excessive caseload, and he challenged section 27.5303(1)(d) as unconstitutional.  The trial court granted the APD’s motion to withdraw, but denied the constitutional challenge.  In State v. Bowens, 39 So. 3d 479 (Fla. 3d DCA 2010), the Third quashed the order granting the APD’s withdrawal and upheld 27.5303(1)(d) as constitutional. 

In Public Defender, Eleventh Judicial Cir. of Fla., et al. v. State of Fla., No. SC09-1181 & No. SC10-1349, (Fla. May 23, 2013), the Supreme Court of Florida accepted review of both cases.  The Third’s opinion in the first Public Defender case was reviewed under Article V, § 3(b)(3) because it “expressly affect[ed] a class of constitutional or state officers,” i.e., public defenders.  And the Third's opinion in Bowens was reviewed under Article V, § 3(b)(4) because the Third certified the issue as one “of great public importance.”

The Court reversed the Third such that appointed counsel are now permitted to withdraw prospectively from representing indigent defendants when counsel’s ability to competently represent those defendants would be prevented by excessive caseloads or underfunding. 

But in order to reach this holding, the first Court agreed with the Third that § 27.5303(1)(d) does apply to cases of prospective withdrawal, which the Public Defender sought with its motion to withdraw from future third-degree felony cases.  And it agreed that § 27.5303(1)(d) was constitutional; however, it employed the doctrine of constitutional avoidance to hold that:

[T]he statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or underfunding that would result in ineffective representation of indigent defendants nor preclude a trial court from granting a motion to withdraw under those circumstances.  

Further reversing the Third, the Court held that:

• Aggregate relief was appropriate where there is evidence of an office-wide crisis of inadequately represented clients,
• The standard for withdrawal under 27.5303 is whether an excessive caseload results in a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, and
• The State Attorney’s Office has standing to contest appointed counsel’s motion to withdraw based on conflict of interests.

This last point in the Court’s holding brings up an ironic distinction:  the Court has held that the Office of Criminal Conflict and Civil Regional Counsel (which represents indigent defendants when the Public Defender’s office has a conflict) does not have standing to contest the Public Defender’s motion to withdraw, despite the fact that its own workload will increase if such motion is granted.  But the State Attorney’s Office does have standing to contest the motion, even though its workload will remain the same regardless of who represents the defendant — the SAO will prosecute the defendant whether the motion is granted or not.  Even though the SAO is a party to the criminal case by virtue of its role as prosecutor, it is unclear from the Court’s opinion exactly what stake or interest it has in who represents the defendant.

While the Court held that the Public Defender’s office may be able to withdraw from future representation, it remanded the case to the trial court “to determine if the circumstances still warrant granting the Public Defender’s motion to decline appointments in future third-degree felony cases under the standards approved in [the] decision.”  The Court determined that based on the record on appeal, the Public Defender “demonstrated cause for withdrawal pursuant to section 27.5303.”  So if the “same conditions still exist,” the Public Defender will be able to withdraw.  

Indeed, the Court was “stuck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender’s representation of indigent defendants.”  Here are a few choice examples:

The noncapital felony caseload has been in the range of 400 cases per attorney for a number of years.  Yet even the highest caseload standard recommended by professional legal organizations is 200 to 300 less.

...

Third-degree felony attorneys often have as many as fifty cases set for trial in one week because of the excessive caseload.

... 

Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment.  Instead, the office engages in ‘triage’ with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients.

But who is to blame for this “damning indictment of the poor quality of trial representation that is being afforded indigent defendants by the Public Defender in the Eleventh Circuit”?  The Court sympathized with the Public Defender’s office, and provided hints at the ultimate causes:

The reduced budget of the Public Defender and the excessive workload have contributed to a decrease in the number of assistant public defenders at the same time that the number of noncapital felony cases assigned to the office has increased by twenty-nine percent,”

and,

Additionally, third-degree felony cases, which comprise approximately sixty percent of all felony filings in the Eleventh Circuit, are clogging the system and negatively impacting the Public Defender’s felony attorneys’ caseload.

But the Court did not expound on whether this increase in appointments and felony filings was due to increased enforcement, increased crime, decreased ability of defendants to afford counsel, or something else entirely. 

Whatever the cause, hopefully the need for en masse prospective withdrawals has ended.  On remand, the circuit court may find that conditions have improved enough from what they were in 2009 such that withdrawal is no longer warranted.  The Public Defender’s office has hired a few new classes of assistant public defenders in the interim. Yet many of those new assistant public defenders have already moved on to private practice.  And funding for the judiciary and criminal justice system remains low as Florida continues its economic recovery. 

After Public Defender, it will be interesting to see appointed counsel in any other circuits  begin filing motions to withdraw as a whole office based on excessive workload, or if the Eleventh Circuit was alone in its strife.

Last Friday, the Fifth District Court of Appeal  reminded  practitioners that the Florida Rules of Appellate Procedure are not just helpful suggestions.  In Hagood v. Wells Fargo, 5D12-2016, (Fla. 5th DCA May 17, 2013), the Fifth took three attorneys to task for a parade of errors that ran afoul of the Rules, issuing this general disclaimer for unsuspecting readers:

[WARNING:] The quality of the legal work performed by [the] attorneys in this case is disturbing.

How disturbing is it, you ask?  Well, at the end of its opinion, the Fifth asked the attorneys for the Appellant, Mr. Hagood, to show cause why they shouldn't be sanctioned.  While we don’t derive any schadenfreude from the mistakes of our fellow officers of the court, we do try to learn from those mistakes and pass on that knowledge to others, because there, but for the grace of God, go us all.

That being said, Appellant's counsel made not one, but three potentially sanctionable errors:

Accordingly, pursuant to Florida Rule of Appellate Procedure 9.410, each attorney for Appellant named on the briefs shall, within 10 days, show cause in writing why sanctions should not be imposed for [1] violating the appellate rules of procedure regarding the provision of record support for facts, [2] for misrepresenting the facts in the initial brief, and [3] for filing a legally untenable and therefore frivolous reply brief.

Let’s take these errors one at a time.  First, Florida Rule of Appellate Procedure 9.210(b)(3) provides that when drafting the statement of the case and facts, “[r]eferences to the appropriate volume and pages of the record or transcript shall be made.”  This means citing to the record in order to support “each material statement of fact.”  2 Fla. Prac., Appellate Practice § 16:16 (2013 ed.).  Not only will you avoid sanctions by following this rule, you will also help your case by providing clarity to the court.  But Appellant’s counsel completely disregarded this rule:

Like Appellant’s initial brief, the reply brief fails to properly cite to the record on appeal to support any factual assertions.

Second, an attorney’s duty of candor to the court actually extends to appellate process too!  Not only did the Appellant’s counsel misrepresent facts, they misrepresented the facts in a painfully conspicuous way:

The brief repeatedly asserts the total lack of notice — a fact that Appellant represented was “uncontroverted."

Appellant’s own counsel, however, controverted the lack of notice themselves in their lower court papers.  In support of a motion for rehearing and to vacate, Appellant’s counsel attached an affidavit “attesting to the fact that the notice of hearing had been received but not calendared due to a clerical error.”

“Uncontroverted" is a very powerful adjective that will send up red flags to the reader (be it a judge or opposing counsel).  It is good practice for counsel to double (nay, triple) check any fact he asserts is uncontroverted, because the reader will certainly check for herself.  

And check they did.  Appellee’s counsel reminded Appellant’s counsel of their lower court admission that notice had, in fact, been received.  Unfortunately, even after being called out, Appellant's counsel remained steadfast in their misrepresentation:

Again inexplicably, rather than attempt to correct the initial brief, Appellant’s counsel filed a reply brief, ignoring the discrepancy in the initial brief and attempted to raise for the first time the issue of whether the denial of the motion to vacate was an abuse of discretion.

That leads us into our third and final sanctionable error, filing a frivolous brief.  Appellant’s reply brief (i) contained an argument not raised in the initial brief, (ii) failed to correct factual errors, and (iii) was devoid of any citations to the record.  Appellate Rule of Procedure 9.210(d) dictates that the “reply brief shall contain argument in response and rebuttal to argument presented in the answer brief.” 

When drafting a reply brief, counsel must hew closely to the arguments raised in the initial and answer briefs.  Failure to do so could result in the brief being stricken.  And the Fifth DCA sent a signal in Hagood that it might also consider any reply brief that presents new arguments, or that is devoid of response and rebuttal, to be frivolous — possibly subjecting its authors to sanctions. 

Moral of the story:  It should go without saying, but before filing any pleadings in Florida’s appellate courts, counsel would do well to read through the Florida Rules of Appellate Procedure, paying close attention to Rules 9.210 on Briefs, and 9.300 on Motions.  And then, counsel should strive to follow those Rules.  As the Fifth DCA pointed out in Hagood, failure to abide by the rules could result in sanctions — and possible bar complaints.

(Speaking of bar complaints, why is the Florida Bar questioning the author of the JAABlog?  South Florida Lawyers, the Southern District of Florida Blog, and the Justice Building Blog have a joint post on this budding First Amendment issue.)

Count Georgia among the states that has now explicitly rejected the controversial (and confounding) inevitable disclosure of trade secrets doctrine.  In Holton v. Physician Oncology Servs, S13A0012 (Ga. May 6, 2013), the Supreme Court of Georgia addressed the doctrine head-on and seemingly put it down for the count.  Florida has yet to explicitly reject or accept the doctrine, and so this case could be instructive for the Sunshine State moving forward.

But what exactly is the inevitable disclosure doctrine? There are two versions: "classic" and "light".  The full-calorie "classic" version, explained in Holton:

enables “a trade secret owner to prevent a former employee from working for
a competitor. . . . by demonstrating the employee’s new job duties will inevitably cause the employee to rely upon knowledge of the former employer’s trade secrets.”

Under this "classic" version the trade secret owner need not show actual evidence that the former employee possesses or intends to disclose trade secrets, and it allows for an independent claim where no noncompete or confidentiality agreements exist.  And if a noncompete or confidentiality agreement does exist, then the doctrine can extend those covenants beyond the effective duration  negotiated by the parties.

This full-bodied version of the inevitable disclosure doctrine provides a powerful tool for trade-secret owners and employers.

The "light" version, as its nomenclature would suggest, is not nearly as powerful. It is not a stand-alone claim untethered from a noncompete, confidentiality  agreement, or statute.  It simply allows a plaintiff to prove "threatened misappropriation," a tort and cause of action under the Uniform Trade Secrets Act (which Florida has adopted, see Fla. Stat. 688.001-009), without showing actual possession of trade secrets.

Now, looking at Holton . . . Holton was sued by his former employer, Vantage, when he took a job with a competitor.  He had signed a noncompete agreement with Vantage (extending only 1 year after leaving), as well as a confidentiality agreement (with a 2 year duration).

Vantage sought a temporary restraining order and an interlocutory injunction based on Holton's alleged (1) violations of the noncompete and confidentiality agreements, (2) violations of Georgia's Trade Secrets Act, and (3) Holton's inevitable disclosure of trade secrets.

Finding Holton's disclosure of trade secrets inevitable based on the similar nature of his former and current employment, the trial court enforced the noncompete and confidentiality agreements for the remainder of their duration, and enjoined Holton from ever using Vantage's trade secrets, thereby dislodging him from his new job position. Vantage presented no evidence that Holton actually possessed trade secrets, nor that he had intended to use Vantage's trade secrets.

Before discussing the substance of the opinion, though, a brief procedural digression is in necessary for the appellate lawyers who surely are thinking about jurisdiction at this point:

[Holton] appealed to the Court of Appeals, which transferred the case to this Court on the grounds that the appeal involves the legality and propriety of equitable relief. See Lee v. Environmental Pest & Termite Control, Inc., 271 Ga. 371 (1) (516 SE2d 76 (1999).

Georgia's constitution gives its Supreme Court pass-through jurisdiction when "the propriety of equitable relief is a substantive issue on appeal."  Elec. Data Sys. Corp. v. Heinemann, 268 Ga. 755, 756, 493 S.E.2d 132, 134 (1997).  

This equity jurisdiction is similar to Florida's pass-through jurisdiction under art. V, § 3(b)(5) of the Florida Constitution, which gives the Supreme Court direct review when an issue is certified by the lower courts as one of "great public importance."  But Georgia's equity jurisdiction looks much narrower; many of the cases involve trade secrets and noncompetes. Interesting stuff.

And now, back to the substance of the opinion. The Georgia Supreme Court explicitly rejected the "classic", full-bodied inevitable disclosure doctrine:

In this case, we hold that the inevitable disclosure doctrine is not an independent claim under which a trial court may enjoin an employee from working for an employer or disclosing trade secrets. Therefore, we reverse the part of the trial order relying on the inevitable disclosure doctrine to enjoin Holton from working for ROSA or disclosing trade secrets and other confidential information.

In other words, simply showing inevitability is not enough to stop someone from working with a competitor.  In Georgia, you need a contractual or statutory basis for the injunction, and you need to show evidence that the former employee in fact possesses trade secrets or has the intent to disclose known secrets.

This removes a significant weapon from trade secret owners's arsenals, and is a serious boon to employee mobility in Georgia.  But trade secret owners take heart -- inevitable disclosure doctrine "light" may still exist in Georgia:

Because it appears that the trial court did not reach Vantage’s claim for actual or threatened misappropriation of trade secrets and the case returns to the trial court for a final adjudication on the merits, we decline to address today whether the inevitable disclosure doctrine may be applied to support a claim for the threatened misappropriation of trade secrets.

So, what about us here in Florida? Currently, Florida law does not recognize either version of the inevitable disclosure doctrine, nor has it had an opportunity to do so.  See Del Monte Fresh Produce Co. v. Dole food Co., Inc., 148 F. Supp. 2d 1326 (S.D. Fla. 2001).  This issue will be one of first impression when it comes up in our Sunshine State, and based on the lack of precedent, Holton will surely be instructive.  As goes Georgia, so goes Florida?

This week the Third District Court of Appeal delivered its latest lesson on relief from judgments under Florida Rule of Civil Procedure 1.540.

In Kalb v. Sail Condo. Ass'n., Inc., No. 3D12-1334 (Fla. 3d DCA May 1, 2013), the Third highlighted the very important distinction between judgments that are void under 1.540(b)(4), and those that are merely voidable under other grounds set forth in the rule .  This distinction is crucial because a motion directed at a void judgment may be brought at any time under Rule 1.540; whereas, a motion to vacate a voidable judgment must within one year of rendition.

ThyssenKrupp (the elevator company) sued Sail Condo Ass'n for breach of contract, and served an employee of the Sail Condo's agent with process.  But Sail Condo failed to file any responsive pleadings and a default judgment was entered in ThyssenKrupp's favor.

Three months after this default, Sail Condo filed an affidavit of one of its employees, who swore that the complaint had been served on another employee, but that employee failed to follow office protocol and never alerted Sail Condo's counsel to the lawsuit.

And perhaps Sail Condo's operational oopsy-daisy could have provided a basis to vacate its default judgment under 1.540(b)(1) (mistake inadvertence, surprise, or excusable neglect) - but only if Sail Condo had brought the motion within one year, and as soon as it learned of the mistake that led to default. Unfortunately, Sail Condo inexplicably waited another 18 months after first filing its mea culpa affidavit to file its motion to vacate.

As the Third explained, failing to respond to a lawsuit because you lost the papers will not render a default judgment void:

On this record, the motion to vacate should not have been granted. The Association’s argument that the judgment was void is incorrect. Service on the registered agent’s employee was proper under section 48.081(3)(a), Florida Statutes (2010). Chapter 2004-273, section 2, Laws of Florida, amended section 48.081(3)(a) to add that “service of process shall be permitted on . . . any employee of the registered agent.” Here, under the plain language of the statute, service on the employee was valid, and the resulting judgment was not void. See Seymour v. Panchita Inv., Inc., 28 So. 3d 194 (Fla. 3d DCA 2010).

So because the judgment was merely voidable, Sail Condo was out at first:

This conclusion renders the motion to vacate irremediably late. While a motion to vacate an order based on a void judgment can be filed at any time, motions to vacate on other grounds must be brought within one year of rendition. Fla. R. Civ. P. 1.540; Craven v. J.M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969). Trial courts do not have jurisdiction to entertain a Rule 1.540(b) motion filed more than one year after rendition of the judgment where there is no basis to exempt the motion from that limitations period. Pilz v. Pilz, 395 So. 2d 591 (Fla. 2d DCA 1981). Here, the one-year limitations period had run.

Moral of the story:  know the difference between void and voidable judgments when moving for relief from under Rule 1.540.  "A void judgment is one entered without jurisdiction of the parties or subject matter or there is a failure of essential notice."  Trawick, Fla. Prac. & Proc. § 26:8 (2012 ed.).

A voidable judgment is one that can be vacated based on any other grounds under 1.540.

Assuming you are not already past the one year window, file your motions against voidable judgments within a year of rendition. And even when you think you have a void judgment entered against you, file within a year unless you have an iron-clad argument for why the judgment is, in fact, void.

(And file your motion to vacate WITH your affidavits in support!!)

Last week, in West Kendall Holdings, LLC v. Downrite Engineering Corp., No. 3D12-781 (Fla. 3d DCA April 24, 2013), the Third District Court of Appeal dodged an economic loss rule issue in one of the first cases to address the doctrine since the Florida Supreme Court seemingly banished it from all non-product liability jurisprudence in Tiara Condo. Ass’n v. Marsh & McLennan Cos., 38 Fla. L. Weekly S151 (Fla. Mar. 7, 2013).

This is what the Third had to say on the economic loss rule:

The third and final asserted basis for dismissal is the economic loss rule. It would appear that this might limit damages on West Kendall’s negligence count (count III).³ However, a plaintiff is entitled to amend a complaint once as of right before a responsive pleading is filed. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 566-67 (Fla. 2005). The dismissal motion in this case is not a responsive pleading. Id. Therefore, West Kendall should have been given an opportunity to amend before facing the dismissal of count III.

³ But see Tiara Condo. Ass’n v. Marsh & McLennan Cos., 38 Fla. L. Weekly S151 (Fla. Mar. 7, 2013).

The Third did not expound on what type of negligence claim was made by West Kendall Holdings. This appeal arose out of a construction contract dispute, so perhaps the claim was grounded in product liability such that the ELR would bar the claim under the Supreme Court's decision in Tiara.

But it looks like we will have to wait for a more direct challenge to the economic loss rule before the Third enlightens us on the limits of Tiara and the boundaries of the ELR.

This past week, the Third District Court of Appeal once again admonished practitioners and judges for their penchant for proposed orders.

The  reproach came in Moriarty v. Murton Roofing Corp., Nos. 3D11-1632 & 3D10-3176 (Fla. 3d DCA April 24, 2013), where the Third  reversed a directed verdict, again underscoring just how difficult it is to uphold a DV on appeal.  This particular DV was worth $2 million (the amount the jury awarded against Moriarty in its verdict).

The Third reversed the DV partly because:

[T]he trial court entered Moriarity’s proposed ten-page order verbatim. This fact alone does not compel reversal, given that Escadote had an adequate opportunity to present its own proposed order and to voice objections to Moriarity’s version. Cf. Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004) (holding verbatim adoption of proposed final judgment was reversible error where trial court failed to give opposing party opportunity to object or to submit his own proposed final judgment). Nevertheless, Florida courts have been critical of such a practice.

For the Third, this proposed order appeared too inaccurate:

Perhaps the most significant inconsistency between the ten-page order and the court’s rulings at trial involved one of the theories of recovery. In its order, the trial court found that appellant had not pled a claim for diminution of value. At trial, however, when appellees objected to evidence being presented on this theory, and argued for its exclusion on the basis that this was a “new claim” which had not been pled, the trial court overruled the objection:

COURT: Well, they always pled diminished value. I made that ruling the first day. They pled it, so you’re on notice that they’re trying to get it. You know what the law is. You’re the one that brought it all up to me about how you get diminished value only if it’s permanently damaged, but if it’s not permanently damaged, commercial waste, you only get the cost to repair.
So you’ve known all along they were going to diminished value, and they are going to have to prove it was not repairable . . . .

To be sure, the Third emphasized that it was reversing Moriarty's DV mostly due to its de novo review "of the entire record," but the inaccurate proposed order may have served to tip the balance towards reversal (considering the Third devoted essentially an entire page of the 4 page opinion to its scolding footnote on the proposed order).

For that reason, when drafting their proposed orders, cautious trial attorneys would do well to hew religiously to the oral pronouncements made during trial - no matter how unfavorable - in order to better protect their directed verdicts and proposed orders on appeal.  As the Third's opinion demonstrates, playing it too fast and loose when drafting could potentially result in multi-million dollar exposure for your clients.

This post is slightly off-topic for this blog, but should (hopefully) be interesting nonetheless. Today the New York Times had an article highlighting the debate springing up around law enforcement's interactions with the surviving Tsarnaev brother suspected of bombing the Boston Marathon.

At issue is whether Dzhokhar Tsarnaev should be read his Miranda rights before being questioned by authorities, or whether the "public safety exception" applies. But the scope of this exception is quite narrow, extending only to questions aimed at ending an ongoing or imminent threat to the public safety, and not to questions aimed at building a criminal case against the suspect.

Orin Kerr has a very concise and informative post on the public safety exception and Miranda rights over at the Volokh Conspiracy blog.

Professor Kerr makes the point that being read your Miranda rights is not a right in and of itself unless the government seeks to introduce a suspect's statements later at trial. And so even without the public safety exception, the FBI and intelligence agencies should be able to question Tsarnaev quite extensively about other plots and participants without ever "reading him his rights," provided they don't intend to use those statements later at trial.

Further complicating the issue of how to treat Dzhokhar Tsarnaev is the fact that he is a naturalized American citizen (he received his citizenship on 9/11/12), and he was not captured in the battlefield (even though Boston quite resembled one this past week). Thus, it will be somewhat of a stretch to label him an "enemy combatant," in order to try him in a military tribunal, despite calls from Senators John McCain and Lindsay Graham to do just that.

But the war on terror is defined by its nebulous character; it is often impossible to tell where its battlefield ends, and where domestic law enforcement begins. And so as our elected officials determine how to proceed with investigating Dzhokhar Tsarnaev, it appears we are once again at that intersection.

Update: Here is a more extensive article from the NYTimes on all of the legal issues surrounding the Boston Marathon bombing suspect, including quotes from Alan Dershowitz:

“This is an American citizen being tried for a crime that occurred domestically, and there is simply no way to treat him like an enemy combatant — not even close,” said Alan M. Dershowitz, a Harvard law professor and seasoned defense lawyer.