Sharp Practices in the Legal Profession

Hon. William H. Burgess, III, B.C.S. 

"Pettifogger" 3-D sculpture by Daniel Midholt, based on a design by Stefan Andersson.  Image found at https://www.artstation.com/artwork/zND4d. No claim to copyright.

One of the more vexing aspects of the legal profession is having to deal with attorneys who engage in sharp practice.

“Sharp practice” is a pejorative expression for unscrupulous conduct, undertaken for the purpose of obtaining an unfair advantage over another, that may (or may not) be technically within the applicable law or rules and is considered immoral, unethical or improper. In business dealings, sharp practice often involves activities that come very close to breaking the law.¹ In the legal profession, the greater part of sharp practice occurs on a continuum just beyond the proper bounds of zealous advocacy,² honor,³ and ethics but just short of outright fraud. It is the sort of behavior that no self-respecting lawyer or judge should have to suffer and no properly functioning legal system should tolerate.

Sentence Mitigation: Acceptance of Responsibility

Hon. William H. Burgess, III, B.C.S.

A common and longstanding practice in the trial courts of Florida is to reward defendants who accept responsibility for their actions with lighter sentences than those defendants might otherwise have received. Many prosecutors encourage this form of sentence mitigation and it is not unusual for prosecutors to agree to downward departure sentences for such defendants in appropriate circumstances, usually early in the case. Appellate courts have noted that acceptance of responsibility is an appropriate factor for the court to consider in mitigating a sentence.¹ As a practical matter, early acceptance of responsibility can show actual or potential rehabilitation,² and it furthers the important state interests in judicial efficiency and economy. There is, however, no consensus within the trial and appellate courts as to what “acceptance of responsibility” or “early acceptance of responsibility” is, and so it is an open question as to whether or not this is a valid stand-alone basis for departure below a presumptive minimum sentence.

Sentence Mitigation: Extraordinary Restitution

Hon. William H. Burgess, III, B.C.S.

Ordinarily, the payment or promised payment of restitution is not a basis for downward departure outside of the provisions of sections 921.0026(2)(e) and 921.185, Florida Statutes. A further basis for downward departure may be extraordinary restitution, whether paid before or after a defendant enters a plea, where the defendant demonstrates acceptance of responsibility and makes exceptional efforts to fully remedy the harm caused by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, such a departure is arguably permitted in appropriate circumstances by the provisions of subsections 921.002(1)(c)¹ and (3).²

Sentence Mitigation: Any Degree of Restitution

Hon. William H. Burgess, III, B.C.S.

Alongside section 921.0026(2)(e), Fla. Stat., is another, older and more general, restitution departure statute. Section 921.185, which has been the law since 1974,¹ provides that

In the imposition of a sentence for any felony or misdemeanor involving property, but not injury or opportunity for injury to persons, the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.²

While section 921.0026(2)(e) focuses on the need for restitution in all cases sentenced under the Criminal Punishment Code, section 921.185 is focused on the actual payment of restitution in essentially all felony or misdemeanor property crimes where there is no injury or opportunity to injure anyone. Each statute thus serves a different purpose and may be applied simultaneously where circumstances justify the application of both,

Comment: The Extreme Duress or Domination Mitigator

Hon. William H. Burgess, III, B.C.S.

It is a statutory mitigating factor under Florida's Criminal Punishment Code that the defendant acted under extreme duress or under the domination of another person when he or she committed the crime.¹ While listed together, it is quite arguable that domination of another person is a lesser species of, and a much less rigorous standard from, extreme duress.²

Concurrent and Consecutive Sentencing Alternatives in Florida

Hon. William H. Burgess, III, B.C.S.

The basic alternatives for concurrent and consecutive sentencing alternatives under Florida law are as follows:

Discretionary Consecutive Sentencing

Same Indictment, Information, or Affidavit: A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits must serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.¹ The court must affirmatively express its intention that such sentences are to run concurrently; otherwise, they will run consecutively.²

2018: A Brief Note on Florida Sentencing

Hon. William H. Burgess, III, B.C.S.

“Sentence” is the judgment formally pronounced by the court or judge upon the defendant after conviction in a criminal prosecution, imposing the punishment to be inflicted.¹ The word comes to the modern language of the law, via Middle English and Old French, from the Latin word sententia, meaning a feeling or opinion communicated by someone to others. This etymology of “sentence” embodies the idea that sentencing is intended to be an expressive function of the courts, conveying to everyone involved and to observers the public’s reaction to the criminal offense. Public denunciation of the individual is an important part of the sentencing process: By censuring the offender, the court not only punishes the individual but also issues a statement of regarding what the community as a whole regards unacceptable behavior and reasserts the moral boundaries of the community.²