[RPPTL-constructionlaw] [RPPTL] - Would CILB violatetheYounger GC below?

Wed May 9 12:12:52 PDT 2012

There are several Florida Bar Ethics opinions on the issue (one of them
is 89-3, which is pre-Rule 4-3.4), they all say you cannot threaten
criminal complaints to obtain an advantage in civil litigation.  None
the opinions I am aware of say anything about threats of civil
litigation or administrative complaints, so one could argue that because
the Bar chose not to include civil or admin, it must have meant to
exclude it.  There is an opinion out there somewhere (sorry I can't find
the cite at the moment) that says it is unethical to threaten litigation
if you have no intention of actually suing, but says it is ok to tell
debtors that if they don't pay you may exercise all legal options, which
could include a lawsuit to recover the money.

There is actually a fair amount out there on this issue.  For example,
Florida Bar Ethic opinion 85-3 says its ok to refer to possible criminal
penalties when sending out a statutory worthless check letter as long as
it is narrowly tailored to track the language of the statute and gives
notice that it is being sent on behalf of a client.  While I am unaware
of a similar opinion relating to F.S. 713.31 (fraudulent liens), I think
the same logic can be applied.

Edward C. Lohrer
Attorney at Law
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.987.7550 Phone
954.985.4176 Fax

ELohrer at becker-poliakoff.com
http://www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE at becker-poliakoff.com. 
________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Fred
Barnes
Sent: Wednesday, May 09, 2012 2:31 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL] - Would CILB
violatetheYounger GC below?

Expansive definition of extortion would include any threat of a lawsuit
if payment not made by a certain date.  My understanding is that you can
threaten administrative complaint, but definitely not criminal
prosecution.

You have to be careful when you are talking about fraudulent liens so as
not to threaten referral for criminal prosecution under 713.31.

FREDERICK C. BARNES, ESQ.

500 North Maitland Avenue, Suite 305

Maitland, Florida  32751

Telephone:  407-865-9200

Facsimile:  407-865-9209

www.fcbarneslaw.com <mailto:www.fcbarneslaw.com>

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Daniel Moody
Sent: Wednesday, May 09, 2012 12:55 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL] - Would CILB violate
theYounger GC below?

I haven't researched the issue in quite some time, but it is my
understanding that it would be extortion to threaten criminal
prosecution, but not if the threat is one of filing an administrative
complaint or initiating an administrative proceeding.

Daniel L. Moody, Esq.
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida  33774

Phone:  727-596-3000
Fax:  727-596-3006
email:  dmoody at moodyandshea.com <mailto:dmoody at moodyandshea.com>

CONFIDENTIALITY NOTICE: The contents of this e-mail message and any
attachments are intended for the addressee(s) named in this message.
This communication is intended to be and to remain confidential and may
be subject to applicable attorney/client and/or work product privileges.
If you are not the intended recipient of this message, or if this
message has been addressed to you in error, please immediately alert the
sender by reply e-mail and then delete this message and its attachments.
Do not deliver, distribute or copy this message and/or any attachments
and, if you are not the intended recipient, do not disclose the contents
or take any action in reliance upon the information contained in this
communication or any attachments.

	-----Original Message-----
	From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Sakwa, Stuart H.
	Sent: Sunday, May 06, 2012 3:33 PM
	To: RPPTL constructionlaw
	Subject: Re: [RPPTL-constructionlaw] [RPPTL] - Would CILB
violate theYounger GC below?

	Regardless of the facts, it is always improper to threaten
someone with reporting misconduct in order to extract compensation.  It
is considered extortion.  On the other hand, Older GC can just report
the conduct.  After he does so, often times, the CILB will require
restitution.  Also, if the Younger GC pays the money due, Older GC can
agree to withdraw his complaint.

	Stuart H Sakwa
	Attorney at Law
	ARNSTEIN & LEHR LLP

	www.arnstein.com <http://www.arnstein.com/>

	515 North Flagler Drive

	Sixth Floor 

	West Palm Beach, Florida 33401-4323
	Phone: 561.650.8484
	Mobile: 954.261.9598

	Fax: 561.802.3082
	Shsakwa at arnstein.com <mailto:Shsakwa at arnstein.com>

	Offices in Illinois, Florida, and Wisconsin

________________________________

	From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
mromm at rommlaw.com
	Sent: Sunday, May 06, 2012 3:24 PM
	To: RPPTL constructionlaw
	Subject: Re: [RPPTL-constructionlaw][RPPTL] - Would CILB violate
the Younger GC below?

	Financial Irresponsibility????  Scenario below?

	"I introduce "Younger GC" to   "Older GC" and younger GC goes to
work for older GC's company.  Younger GC agrees to work only for older
GC's company and to develop older GC's business. They both agree that
Younger GC shall, under his old company name, complete all existing jobs
of which there are not many.  Later, younger GC asks older GC for a loan
to finish a two jobs because he took money to do the jobs, and spent the
money before the permits were issued. He did not have enough money to
finish the jobs.  It is unknown whether the jobs were ever finished.
During his employment Younger GC promises verbally (and in writing when
he signed his resignation letter)  to pay back the loan.  He made
similar verbal promises after he left his employment. It is now obvious
to older GC that he is not going to be paid back his money.  Can older
GC threaten younger GC with a complaint to the CILB regarding younger
GC's financial irresponsibility in failing to properly manage the funds
on the two jobs and also for refusing to pay back older GC for the loan
in order to inspire younger GC to repay the loan? If such a complaint is
made, will the CILB sanction younger GC? Or,  is this improper for older
GC to make the threat in order to get paid the money back.

	Michael Romm

	Michael R. Romm, P.A.

	1213 S. 30th Avenue, Suite 2, Hollywood, FL 33020

	Phone: (954) 557-8002

	Fax:  (954) 208-0022

	mromm at rommlaw.com

	This electronic mail transmission may contain confidential or
privileged information.
	If you believe that you have received this message in error,
please notify
	the sender by reply transmission and delete the message without
copying or disclosing it.

	Pursuant to Internal Revenue Service guidance, be advised that
any federal tax
	advice contained in this written or electronic communication,
including any
	attachments or enclosures, is not intended or written to be used
and it cannot
	be used by any person or entity for the purpose of (i) avoiding
any tax penalties
	that may be imposed by the Internal Revenue Service or any other
U.S. Federal
	taxing authority or agency or (ii) promoting, marketing or
recommending
	to another party any transaction or matter addressed herein.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120509/661bc3ac/attachment.html>