1. a prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place; and

2. a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel.

In issuing this opinion, the committee agreed with the position taken by almost every state that has addressed the issue that it is improper for the prosecutor to make such an offer and for the defense lawyer to advise the client on accepting the offer.

If you need assistance regarding your legal rights or need other legal advice regarding a criminal matter, please contact The Gordon Law Firm in Oldsmar, Florida or Tampa, Florida.  We serve Clearwater, St. Petersburg, Pasco County, Tampa, and the entire Tampa Bay area.  We can help you understand your rights, seek justice and represent your needs.

“Making the law work for you and your business”

Here is the full opinion:

PROFESSIONAL ETHICS OF THE FLORIDA BAR
OPINION 12-1
(June 22, 2012)

A criminal defense lawyer has an unwaivable conflict of interest when advising a client about accepting a plea offer in which the client is required to expressly waive ineffective assistance of counsel and prosecutorial misconduct. A prosecutor may not make an offer that requires the defendant to expressly waive ineffective assistance of counsel and prosecutorial misconduct because the offer creates a conflict of interest for defense counsel and is prejudicial to the administration of justice.

[This opinion was affirmed by the Board of Governors on December 7, 2012.]

RPC:
4-1.7, 4-1.8(h), 4-8.4(d)

Opinions:
Alabama Informal Opinion (Unnumbered, dated September 1, 2010); Arizona Ethics Opinion 95-08; Missouri Formal Ethics Opinion 126; National Association of Criminal Defense Counsel Proposed Opinion, 03-02; North Carolina Ethics Opinion 129; Ohio Ethics Opinion 2001-6; Tennessee Informal Ethics Opinion 94-A-549; Texas Ethics Opinion 571; Vermont Ethics Opinion 95-04; Virginia Legal Ethics Opinion 1857

A member of The Florida Bar has requested an opinion regarding the ethical propriety of offering or advising a criminal defendant to accept a plea offer in which the criminal defendant waives past or future ineffective assistance of counsel and prosecutorial misconduct. The committee first notes that whether particular plea agreements are lawful, enforceable and meet constitutional requirements are legal questions outside the scope of an ethics opinion. Reviewing these issues in light of ethics considerations, the committee concludes that both offering and recommending acceptance of such a plea offer is improper.

The majority of states that have examined this issue have concluded that such an offer is impermissible for the criminal defense lawyer, the prosecutor, or both, for varying reasons. Most recently, the Virginia State Bar issued Legal Ethics Opinion 1857 (2011), which opined that a criminal defense lawyer may not ethically advise a criminal defendant to accept a plea that includes waiving the right to make a claim of ineffective assistance of counsel as a personal conflict of interest of the lawyer. The opinion states, “Defense counsel undoubtedly has a personal interest in the issue of whether he has been constitutionally ineffective, and cannot reasonably be expected to provide his client with an objective evaluation of his representation in an ongoing case.” The opinion specifically finds that the agreement does not violate the rule limiting prospective waivers of future malpractice, but states that the prosecutor may not make such an offer as it is “an inducement to the defense lawyer to violate” the ethics rules.

An earlier opinion from Missouri states that it is impermissible for a lawyer to advise a criminal defendant to relinquish claims of ineffective assistance of counsel by that lawyer, because the lawyer cannot properly ask the client to waive this type of personal conflict. Missouri Formal Ethics Opinion 126 (2009). The opinion further indicates that a prosecutor’s request for a waiver of claims of ineffective assistance of counsel and prosecutorial misconduct is inconsistent with the prosecutor’s role and is conduct that is prejudicial to the administration of justice.

Vermont Ethics Opinion 95-04 reaches a similar conclusion as to the criminal defense lawyer, but on a different basis, finding that a criminal defense lawyer should not advise a client to accept a plea offer conditioned on waiver of ineffective assistance of counsel because of Vermont’s prohibition that “a lawyer shall not attempt to exonerate himself from or limit his liability to his client for personal malpractice.” Similarly, Ohio Ethics Opinion 2001-6 opined that a waiver of ineffective assistance of counsel claims equates to a limitation on the criminal defense lawyer’s liability for malpractice, because it “significantly limits and may even destroy the defendant’s ability to establish proximate cause, a necessary element of a legal malpractice claim.” Ohio also reaches the same conclusion as Missouri that a prosecutor may not make such an offer, because a prosecutor should not seek to insulate his or her misconduct with a waiver. Tennessee Informal Ethics Opinion 94-A-549 states that neither a criminal defense lawyer nor a prosecutor may make an agreement to waive ineffective assistance of counsel or prosecutorial misconduct because of the prohibition in the Ethical Canons and Disciplinary Rules against limiting liability for malpractice.

North Carolina Ethics Opinion 129 (1993) opined that a plea offer conditioned on waiver of ineffective assistance of counsel may limit the criminal defendant’s ability to seek a remedy for malpractice and, even if not, that any discipline against the prosecutor or criminal defense lawyer “may be hollow and ineffective remedies for the incarcerated Client C and insufficient to assure compliance with the rules.” The opinion points out the personal conflict for the criminal defense lawyer in advising the client regarding the agreement. Similarly, an Alabama informal opinion (dated September 1, 2010) concluded that an agreement precluding an ineffective assistance of counsel claim may run afoul of the rule prohibiting prospective limitation of malpractice claims based on the inquirer’s statement that the ineffective assistance of counsel claim is “the functional equivalent of a malpractice claim.”

The National Association of Criminal Defense Counsel has published a proposed opinion, 03-02, which indicates that a criminal defense lawyer may not participate in a plea agreement that waives the client’s right to collaterally attack the plea with a claim of ineffective assistance of counsel, because of the personal conflict of interest it presents for criminal defense counsel, and because the waiver limits the lawyer’s malpractice liability, because the criminal defendant in most jurisdictions must make a successful ineffective assistance of counsel claim in order to bring a malpractice claim against the lawyer. The opinion also states that the prosecutor should not make such offers, because the offer is prejudicial to the administration of justice and because it assists or induces the criminal defense lawyer to violate the rules.

Arizona Ethics Opinion 95-08 specifically determined that a plea offer waiving collateral rights, such as a later claim of ineffective assistance of counsel, is not a prospective waiver of malpractice and therefore is not prohibited under the rules. The opinion notes that, not only is ineffective assistance of counsel not a claim of malpractice, the agreement is between the prosecutor and the criminal defendant, not between the criminal defendant and the criminal defense lawyer. The Arizona opinion does not discuss the issue of conflicts of interest. A dissent in the opinion vigorously disagreed with the opinion, indicating that the broad policy behind the rule is to permit clients to later challenge the conduct of their lawyers. The dissent quoted from an earlier opinion of the committee finding the rule prohibited an agreement between lawyer and client that client would not file a bar complaint, stating “agreements such as the one the inquiring attorney proposes involve the very same evils that ER 1.8(h) is designed to prevent; the strong potential of coercion and over-reaching on the attorney’s part, and the potential conflict between the lawyer’s interests and those of his client.”

Texas is the only state, to date, that has specifically addressed the conflict of interest issue and determined that it may be permissible to advise a criminal defense client regarding waiving an ineffective assistance of counsel claim in making the plea. Texas Ethics Opinion 571 (2006) concludes that a criminal defense lawyer may or may not have a conflict of interest when faced with the plea offer from the prosecutor requiring a waiver of ineffective assistance of counsel, and that in order to advise the client regarding the plea offer, the lawyer must reasonably conclude that the representation will not be affected by the lawyer’s personal interests. The opinion states that the lawyer must decide on a case-by-case basis whether the lawyer has a conflict because of concerns that the client may have a basis to raise ineffective assistance of counsel and whether the lawyer is able to make the full disclosure to the client necessary to obtain consent to continued representation. Additionally, the opinion concludes that the applicability of restrictions on waiving malpractice claims will depend on whether the plea agreement is interpreted to limit the criminal defense lawyer’s liability to the defendant for malpractice. Finally, the Texas opinion indicates that the prosecutor may make such a plea offer, although the prosecutor may still be subject to discipline if the prosecutor in fact engages in prosecutorial misconduct.

This Committee agrees with the majority of states that have addressed this issue that it is improper for the prosecutor to make such an offer and for the defense lawyer to advise the client on accepting the offer.
Rule 4-1.8(h) addresses agreements limiting a lawyer’s liability for malpractice and states:

(h) Limiting Liability for Malpractice.

A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. A lawyer shall not settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

This type of plea agreement is between the prosecutor and the defendant, and an ineffective assistance of counsel claim is not a malpractice claim. Thus, on its face, the rule does not prohibit advising a criminal defense client to enter a plea agreement that waives the client’s right to claim ineffective assistance of counsel in a collateral proceeding. However, a lawyer should not be permitted to do indirectly what the lawyer cannot do directly. A defense lawyer’s recommendation that a client waive a claim of ineffective assistance of counsel is akin to limiting malpractice liability, which is impermissible if the terms of the rule cannot be met.

Unlike malpractice liability, which is a type of conflict that may be waived under specific circumstances with independent representation, the Committee believes that the personal conflict created by such a plea agreement cannot be waived. Rule 4-1.7(a)(2) provides as follows:

(a) Representing Adverse Interests.

Except as provided in subdivision (b), a lawyer shall not represent a client if:

***

(2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

The Committee concludes that a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer’s own performance.

Regarding the prosecutor’s conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee’s opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.

[Revised: 12-11-2012]

A fictitious name means any name under which a person transacts business in this state, other than his legal name. Business means any enterprise or venture in which a person sells, buys, exchanges, barters, deals, or represents the dealing in any thing or article of value, or renders services for compensation. Legal name means a person’s given name, or an entity that has been properly registered. Examples: trademarks, service marks, corporations, limited partnerships.

What is a d/b/a and how does it relate to a fictitious name?

The phrase “doing business as” (abbreviated DBA, dba or d/b/a) is a legal term used in the United States, meaning that the trade name, or fictitious business name, under which the business or operation is conducted and presented to the world is not the legal name of the legal person (or persons) who actually own it and are responsible for it. The distinction between an actual and a “fictitious” name is important because businesses with “fictitious” names give no obvious indication of the entity that is legally responsible for their operation.

What is the intent of the Fictitious Name Registration Act?

The intent of the Fictitious Name Act is for public notice as to ownership.

What is the effect of registration?

Notwithstanding the provisions of any other law, registration under the Fictitious Name Act, 865.09 F.S., is for public notice only, and gives rise to no presumption of the registrant’s rights to own or use the name registered, nor does it affect trademark, service mark, trade name or corporate name rights previously acquired by others in the name or a similar name. Registration under this Act does not reserve a fictitious name against future use by another party.

Who is exempt from filing?

A business formed by an attorney licensed to practice law in this state, or a person licensed by the Department of Business and Professional Regulation or the Department of Health, for the purpose of practicing his licensed profession need not be registered under the Fictitious Name Act, notwithstanding that it transacts business ancillary to the practice of such profession. Note: The individual licensing board at the Department of Business and Professional Regulation or the Department of Health should be contacted to determine if the individual licensing board requires registration regardless of the exemption stated in 865.09 F.S.. The Division of Corporations does not make this determination.

When would the Division of Corporations not require the filing of a fictitious name?

When the applicant is a licensed attorney forming a business for the practice of law in the State of Florida.

When the applicant is registered with the Department of Business and Professional Regulation and their licensing board has not imposed requirements for the registration as a fictitious name.

When the applicant is a corporation, partnership or other legal entity filed or registered and in good standing with the Division of Corporations and is not transacting business under any other name.

When the applicant is a Federally chartered corporation and is not transacting business under any other name.

Other exceptions may apply. They would have to be addressed on an individual basis.

Are there any penalties for failure to file a Fictitious Name Registration?

Failure to comply with the fictitious name registration provisions of section 865.09, F.S., is a misdemeanor of the second degree and punishable as provided in section 775.082 or section 775.083, F.S..

Will I need proof of my Fictitious Name Registration?

Yes, section 205.023, Florida Statutes states: “Requirement to report status of fictitious name registration. – As a prerequisite to receiving a local occupational license under this chapter or transferring a business license under s.205.033(2) or s. 205.043(2), the applicant or new owner must present to the county or municipality that has jurisdiction to issue or transfer the license either:

A copy of the applicant’s or new owner’s current fictitious name registration, issued by the Division of Corporations of the Department of State; or

A written statement, signed by the applicant or new owner, which sets forth the reason that the applicant or new owner need not comply with the Fictitious Name Act.”

Also, banks and financial institutions may require proof of registration before engaging in any transactions.

Does the fictitious name need to be advertised in a newspaper?

Yes, the name to be registered must be advertised at least once in a newspaper as defined in Chapter 50, F.S., in the county where the principal place of business of the applicant will be located. No proof of advertisement will be required. As part of the signature block the applicant certifies the name has been advertised at least once in a newspaper as defined in Chapter 50, F.S..

What is the fee to file?

The fee to file the application for registration of a fictitious name is $50.00. The fee is a non refundable processing fee.

How long is the Fictitious Name Registration valid?

The fictitious name registration is valid for a period of 5 years and expires on December 31 of the 5th year. The Division of Corporations will mail a renewal application to the last reported mailing address at least 3 months prior to its expiration. All fictitious names registered must maintain a current mailing address with the Division. Address changes must be made by letter or other written communication to the Division of Corporations.

Is there any written acknowledgment sent to the business?

Online registrations: An acknowledgement letter stating the name registered, registration number, date of registration, and any certification requested will be sent via email to the email address provided on the application. All future notices will be emailed to the address on file.

Registrations by mail: An acknowledgement letter stating the name registered, registration number, date of registration and any certification requested will be sent via the US Postal Services to the mailing address provided on the application in Section 1.

A certificate of status is an additional $10.00. A certified copy is an additional $30.00.

What is the Division of Corporations responsibility?

The Division of Corporations is responsible for the administering of the Fictitious Name Act, 865.09 Florida Statutes. It is the applicant’s responsibility to insure that they have complied with all other applicable statutes and regulations not administered by the Division of Corporations. There may be instances where the Division will not deem a filing necessary but another agency or institution will. The applicant in this situation would need to file the fictitious name in order to comply with all parties. Additionally, the Division of Corporations is not responsible for any name infringement which may occur in the use of a fictitious name. Names are not screened against any other recorded information. It is the applicant’s responsibility to insure that name infringement does not occur. The Division of Corporations is a filing agency and as such does not render any legal, accounting, or tax advice. The professional advice of your legal counsel to ascertain exact compliance with all statutory requirements is strongly recommended.

If I want to register as a “partnership”, do I register my partnership name as a fictitious name or do I register as a partnership under the Revised Uniform Partnership Act?

Effective January 1, 1996, partnerships can be filed with the Department of State under Part II of Chapter 620, Florida Statutes. Under this statute, filing is not required but is “permissive”. As a partnership you should file under either the partnership act or as a fictitious name. You should review both statutes to determine which better fits your needs.

If you need assistance filing for a fictitious name, business formation, or would like other legal advice regarding your business, please contact The Gordon Law Firm in Oldsmar, Florida or Tampa, Florida.  We serve Clearwater, St. Petersburg, Pasco County, Tampa, and the entire Tampa Bay area.  We can help you understand your rights, seek justice and represent your needs.

“Making the law work for you and your business”

It is important to note that both Federal and state laws (Florida) define the terms of domestic/dating violence, sexual assault, and stalking. As there may be differences with the way these definitions are viewed and interpreted, there may be differences in the application and situation of state law equivalents, federal enforcement, and criminal liability.

Some highlights from the questions and answers:

Q: What are some examples of employment decisions that may violate Title VII and involve applicants or employees who experience domestic or dating violence, sexual assault, or stalking?

A: Title VII prohibits disparate treatment based on sex, which may include treatment based on sex-based stereotypes. For example:

• An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
• A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.
• An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”

Title VII prohibits sexual or sex-based harassment. Harassment may violate Title VII if it is sufficiently frequent or severe to create a hostile work environment, or if it results in a “tangible employment action,” such as refusal to hire or promote, firing, or demotion. For example:

• An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.
• A seasonal farmworker’s supervisor learns that she has recently been subject to domestic abuse, and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses he terminates her.

Title VII prohibits retaliation for protected activity. Protected activity can include actions such as filing a charge of discrimination, complaining to one’s employer about job discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. For example:

• An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

Q: What are some examples of employment decisions that may violate the Americans with Disabilities Act and involve applicants or employees who experience domestic or dating violence, sexual assault or stalking?

A: The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking. For example:

• An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.
• An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.

The ADA may require employers to provide reasonable accommodation requested for an actual disability or a “record of” a disability. An actual disability is a physical or mental impairment that substantially limits one or more major life activities (which include major bodily functions). A “record of” a disability is a past history of a substantially limiting impairment. An impairment does not need to result in a high degree of functional limitation in order to be “substantially limiting.” A reasonable accommodation is a change in the workplace or in the way things are usually done that an individual needs because of a disability and may include time off for treatment, modified work schedules, and reassignment to a vacant position. For example:

• An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”
• In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its “no transfer” policy.

The ADA prohibits disclosure of confidential medical information.

• An employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest requests reasonable accommodation. Her supervisor then tells the employee’s co-workers about her medical condition.

The ADA prohibits retaliation or interference with an employee’s exercise of his or her rights under the statute.

• In the prior example, the employee tells the supervisor she intends to complain to human resources about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.

The rest of the questions and answers can be found here.

For additional information, please contact The Gordon Law Firm | P.A. at www.thegordonfirmcom

“Making the law work for you and your business”

Please note that the above questions were answered generally in context of Florida Law. The laws of other states may differ. In addition, the statements above are general comments about the law. As such, these statements should not be relied upon when making a legal decision. If you have any questions, please consult with an attorney licensed to practice law in your jurisdiction.

If you need assistance understanding your rights regarding the above, please contact The Gordon Law Firm in Oldsmar, Florida.   The Gordon Law Firm serves all of Pinellas, Hillsborough, and Pasco Counties including the cities of Oldsmar, Clearwater, Tampa, New Port Richey, Westchase, Tarpon Springs, and St. Petersburg, as well as the entire Tampa Bay area.

Reasonable geographic scope is often dependent on various other factors and their relationship to each other. Some of these factors are: geographic scope, time, nature of the restrictions, location of customers, and anything of value promised when making the agreement, all viewed in relationship to one another. Moreover, the type of business restricted, the geographic areas worked by the employee during the term of employment can all play into the balancing test. Where a non-compete covenant does not contain a geographic limitation, the court may be permitted to supply a reasonable geographic scope.

7. What is considered a reasonable duration of time?

A reasonable duration of time is typically viewed in context of the other factors and the overall situation (i.e. what is reasonable in one situation may not be reasonable in other circumstances). However, in Florida there are some general guidelines and presumptions that are detailed in Florida law (Florida Statutes § 542.335(d):

(d) In determining the reasonableness in time of a post term restrictive covenant not predicated upon the protection of trade secrets, a court shall apply the following rebuttable presumptions:

1. In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of:

a. The assets of a business or professional practice, or

b. The shares of a corporation, or

c. A partnership interest, or

d. A limited liability company membership, or

e. An equity interest, of any other type, in a business or professional practice,

a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration.

2. In the case of a restrictive covenant sought to be enforced against a former distributor, dealer, franchisee, or licensee of a trademark or service mark and not associated with the sale of all or a part of:

a. The assets of a business or professional practice, or

b. The shares of a corporation, or

c. A partnership interest, or

d. A limited liability company membership, or

e. An equity interest, of any other type, in a business or professional practice,

a court shall presume reasonable in time any restraint 1 year or less in duration and shall presume unreasonable in time any restraint more than 3 years in duration.

3. In the case of a restrictive covenant sought to be enforced against the seller of all or a part of:

a. The assets of a business or professional practice, or

b. The shares of a corporation, or

c. A partnership interest, or

d. A limited liability company membership, or

e. An equity interest, of any other type, in a business or professional practice,

a court shall presume reasonable in time any restraint 3 years or less in duration and shall presume unreasonable in time any restraint more than 7 years in duration.

8. What is considered a reasonable restriction on the nature of duties performed?

In general, courts look to the nature of the work performed, the length of time the employee was employed by the employer, whether the employer conferred special training or education as a benefit of employment, whether the employer shared trade secrets with the employee which could substantially affect the employer if used by a competitor, whether the information the employee possesses is really kept confidential by the employer and whether the knowledge the employee has is unique to the employer, or of a general nature, such as general sales experience. Typically, prohibitions against using general knowledge are disfavored. Another common restriction relates to contact or solicitation of current substantial clients or customers of the employer.

9. Does my employer have to pay me additional money in exchange for a non-compete agreement?

Probably not, in Florida continued employment is often treated as sufficient consideration. Specifically, Where a restrictive covenant specifies, in unambiguous terms, that the agreement is supported by consideration in the form of continued employment, it cannot be found void for lack of consideration.

10. If I have already agreed to a covenant not to compete, can I get out of it?

It depends. Florida law supports non-competes, so the very specific details of your exact situation will all play into whether or not the agreement will be enforceable against you. In addition to the details listed in these posts, there are many other considerations that a licensed attorney should research and consider. Only after a thorough review will an attorney be able to give you a better idea about the enforceability in your situation.

For additional information, please contact The Gordon Law Firm | P.A. at www.thegordonfirmcom

“Making the law work for you and your business”

Please note that the above questions were answered generally in context of Florida Law. The laws of other states may differ. In addition, the statements above are general comments about the law. As such, these statements should not be relied upon when making a legal decision. If you have any questions, please consult with an attorney licensed to practice law in your jurisdiction.

If you need assistance understanding your rights regarding a non-compete agreement or you are a business that wishes to draft or enforce a non-compete, please contact The Gordon Law Firm in Oldsmar, Florida.   The Gordon Law Firm serves all of Pinellas, Hillsborough, and Pasco Counties including the cities of Oldsmar, Clearwater, Tampa, New Port Richey, Westchase, Tarpon Springs, and St. Petersburg, as well as the entire Tampa Bay area. 

Non-compete agreements, also known as covenants not to compete, are simply contracts or provisions of contracts where one party agrees to refrain from conducting business similar to that of the other party. The general purpose of these agreements is to restrict the ability of employees who sign the agreement to go into business against the employer within a certain geographic area for a certain period of time. If you sign it, typically you are agreeing that you will not compete with your employer by engaging in any business of a similar nature, as an employee, independent contractor, owner, part owner, significant investor, and whatever other form of competition your employer identifies to cover its bases.

2. Am I required to agree to a non-compete agreement?

No. However, if you don’t agree to the non-compete, you may not get a prospective job, or depending on the circumstances you could lose your current job. Florida is an at-will employment state, so that unless you have an employment contract currently in place, you can be fired (or you can quite) at any time for any legal reason. Of course, the terms of the agreement may or may not be enforceable, but that is a different matter as to whether or not you can be required to sign it.

3. Is it legal to deny me a job just because I refuse to sign a non-compete agreement?

Typically, yes,

4. What factors do courts look at to determine whether a non-compete agreement is reasonable?

Some factors include: scope of the agreement with regard to definition and type of business, geographic area restriction, and time duration of the agreement.

5. What are considered legitimate business reasons that will justify an employer’s enforcement of a non-compete agreement?

Some examples include trade secrets, confidential information, and substantial relationships with prospective or existing customers, patients, or clients.

For additional information, please contact The Gordon Law Firm | P.A. at www.thegordonfirmcom

“Making the law work for you and your business”

In Part II, look for further information on restrictions in non-compete, post-employment non-competes, and more.

If you need assistance understanding your rights regarding a non-compete agreement or you are a business that wishes to draft or enforce a non-compete, please contact The Gordon Law Firm in Oldsmar, Florida.   The Gordon Law Firm serves all of Pinellas, Hillsborough, and Pasco Counties including the cities of Oldsmar, Clearwater, Tampa, New Port Richey, Westchase, Tarpon Springs, and St. Petersburg, as well as the entire Tampa Bay area. 

The texting while driving case that could be a game-changer for this country. A New Jersey judge is expected to decide this week whether a woman who sent text messages to her boyfriend, whom she knew was driving at the time can be sued for contributing to the crash he caused while texting her back.

If you need assistance or would like legal advice regarding your business or individual situation, please contact The Gordon Law Firm in Oldsmar, Florida.  We serve Clearwater, St. Petersburg, Pasco County, Tampa, and the entire Tampa Bay area.  We can help you understand your rights, seek justice and represent your needs.

“Making the law work for you and your business”

Brent is excited to partner with the Upper Tampa Bay Chamber to provide commentary and discussion about relevant and timely legal and business topics.

To visit the Upper Tampa Bay Chamber of Commerce, please click here.

To visit the Upper Tampa Bay Chamber of Commerce BLOG, please click here.

If you need assistance or would like legal advice regarding your business or individual situation, please contact The Gordon Law Firm in Oldsmar, Florida.  We serve Clearwater, St. Petersburg, Pasco County, Tampa, and the entire Tampa Bay area.  We can help you understand your rights, seek justice and represent your needs.

“Making the law work for you and your business”

All Florida Businesses registered with the Florida Department of State, Division of Corporations must file an annual report by May 1 of each year. The deadline for this year is coming up quickly and if payment is late a $400 penalty (that cannot be waived!) will be required to file the report (except for not for profits).

Some quick points about annual reports:

What is an annual report? The report is the annual filing made by business entities to confirm or update various information with the State of Florida including registered agent, officer(s), owner(s), and address(es).

What entities must file an annual report and what is the current fee? All of them—$150 for a profit corporation; $61.25 for a not for profit corporation; $138.75 for a limited liability company; and $500 for a limited partnership or limited liability limited partnership.

What happens if an annual report is not filed? In addition to the late fee imposed for late registration, failure to file an annual report by the 3rd Friday of September will result in the administrative dissolution of the business entity. Administratively dissolved entities may be reinstated by submitting the appropriate reinstatement application and the appropriate fees due this office at the time the entity applies for reinstatement. In addition, names of administratively dissolved or revoked business entities are made available to other parties after one calendar year.

Does an annual report need to be filed if the business entity has closed? No, but you should consider formally dissolving or withdrawing the entity.

What changes can be made in the annual report?

· add, delete, or change the names and/or addresses of the officers, directors, managers, managing members, and addresses only of general partners;

· change the registered agent and registered office address;

· change the principal office address and mailing address for the business entity;

· add or change a federal employer identification number.

Can I change the name of the entity when I file an annual report? No. You must file a separate amendment to change the name of your business entity.

What if I need to make a change to the information I provided when I filed the annual report? Corporations and LLC’s can file an amended report with the updated information.

How can I pay for my annual registration? Credit card, Sunbiz E-file account, or check/money order.

Are there any special requirements for not for profit corporations that solicit contributions? Yes, The Department of Agriculture and Consumer Services, Division of Consumer Services, is now responsible for administering the Solicitation of Contributions Act, chapter 496, Florida Statutes. The Solicitation of Contributions Act requires charitable organizations or sponsors intending to solicit contributions from the public in the State of Florida to annually register with the Division of Consumer Services. Failure to comply with this act is a third degree felony.

PLEASE NOTE:

FRAUDULENT FILING NOTICE: Pursuant to s.817.155, Florida Statutes, it is a 3rd Degree Felony to knowingly file a false document with the Division of Corporations.

FEES:

If the report is filed by May 1st:

· Profit Corporation Annual Report: $150 (+ $8.75 if certificate of status requested)

· Not for Profit Corporation Annual Report: $61.25 (+ $8.75 if certificate of status requested)

· Limited Liability Company Annual Report: $138.75 (+ $5.00 if certificate of status requested)

· Limited Partnership or Limited Liability Limited Partnership Annual Report: $500.00 (+ $8.75 if certificate of status requested)

After May 1st: An additional $400 late fee will apply to profit corporation, limited liability company, limited partnership and limited liability limited partnership annual reports filed after May 1st. Not for profit corporations are not subject to the $400 late fee.

Make check or money order payable to Florida Department of State.

If you need assistance filing your annual report or would like other legal advice regarding your business , please contact The Gordon Law Firm in Oldsmar, Florida.  We serve Clearwater, St. Petersburg, Pasco County, Tampa, and the entire Tampa Bay area.  We can help you understand your rights, seek justice and represent your needs. 

“Making the law work for you and your business”