author: PER CURIAM. PARIENTE, J., LEWIS, J.,

text:
    Konstantinos X. FOTOPOULOS, Appellant, v. STATE of Florida, Appellee. Konstantinos X. Fotopoulos, Petitioner, v. Michael W. Moore, etc., Respondent.
    Nos. SC00-1511, SC01-2824.
    Supreme Court of Florida.
    Dec. 19, 2002.
    Rehearing Denied Feb. 14, 2003.

      George E. Tragos, Clearwater, FL; and Kevin T. Beck, Capital Collateral Counsel, and Leslie Anne Scalley, Capital Collateral Counsel, Capital Collateral Regional Counsel — Middle, Tampa, FL, for Appellani/Pe-titioner.
    Richard E. Doran, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Konstantinos X. Fotopoulos appeals an order of Circuit Court Judge Kim C. Hammond denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const.

Facts and Procedural History

In 1989, Fotopoulos and Deidre Hunt, a woman with whom he was having an affair, went to an isolated rifle range with Kevin Ramsey. Ramsey was tied to a tree and, at the appellant’s direction, was shot three times in the chest with a .22 rifle by Hunt. This portion of the shooting was videotaped by Fotopoulos. The taping of the events then stopped, and Fotopoulos shot Ramsey once in the head with an AK-47 assault rifle. Apparently, Ramsey was executed because he was attempting to blackmail Fotopoulos regarding alleged counterfeiting activities.

The videotape of the Ramsey killing was then used by Fotopoulos to force Hunt to arrange the murder of Fotopoulos’s wife, Lisa. After failing to arrange the hiring of someone to kill Mrs. Fotopoulos three times, Hunt was finally successful in enlisting Bryan Chase to carry out the murder for $5000. On November 4, 1989, Chase entered the Fotopoulos home and shot Lisa once in the head. The shot was not fatal. After Lisa had been shot, Fotopou-los shot Chase repeatedly, killing him.

Fotopoulos and Hunt were eventually charged with two counts of first-degree murder, two counts of attempted first-degree murder, two counts of solicitation to commit first-degree murder, one count of conspiracy to commit first-degree murder, and one count of burglary of a dwelling while armed. Prior to testifying at Foto-poulos’s trial, Hunt pled guilty to all charges and received two death sentences.

At trial, the State introduced evidence to demonstrate that Fotopoulos was the mastermind behind the events resulting in the deaths of both Ramsey and Chase and the near death of Lisa Fotopoulos. Significantly, the State constantly maintained in this proceeding that Hunt was dominated by Fotopoulos. The appellant/petitioner testified in his own defense and asserted his innocence throughout the trial. The jury found Fotopoulos guilty of all charges and recommended that he be sentenced to death for the murders. The trial court followed the jury’s recommendation and sentenced Fotopoulos to death.

Fotopoulos asserted a total of sixteen claims in his direct appeal to this Court, all of which were rejected. See Fotopoulos v. State, 608 So.2d 784 (Fla.1992). On May 17, 1993, the United States Supreme Court denied Fotopoulos’s petition for a writ of certiorari. Fotopoulos v. Florida, 508 U.S. 924, 113 S.Ct. 2377, 124 L.Ed.2d 282 (1993). Fotopoulos then filed and subsequently amended a timely motion to vacate the judgment against him and his sentence of death pursuant to Florida Rule of Criminal Procedure 3.850. On May 16, 1997, the trial court denied an evidentiary hearing on all claims presented in Fotopoulos’s motion. On appeal to this Court, an order was entered denying relief on certain enumerated claims, but remanding the case for the presentation of a proper motion for relief to be submitted for consideration by the trial court. See Fotopoulos v. State, No. 91,227, 741 So.2d 1135 (Fla.1999).

Specifically, the Court held that Claims I, III, IV, V, IX, XII, and XV were not legally cognizable. Id. Pursuant to this Court’s order, a hearing was held March 6 through 8, 2000. On June 15, 2000, Judge Hammond denied all relief. See Fotopoulos v. State, No. 89-7632 (Fla. 7th Cir. Ct. order filed June 15, 2000). Fotopoulos appealed, asserting eight claims. Subsequently, on December 21, 2001, Fotopoulos petitioned this Court for a writ of habeas corpus, asserting five additional claims.

Rule S.850 Postconviction Proceeding

In his first cognizable claim, Fo-topoulos asserts that trial counsel’s performance was constitutionally deficient because he failed to obtain a transcript of testimony given by Fotopoulos at an indi-gency hearing that was subsequently used to impeach him at trial. As it is clear from the record that Fotopoulos’s counsel did not have a transcript of the hearing at trial, he asserts that this is evidence of substandard investigation and preparation by Fotopoulos’s attorney.' In addition, Fo-topoulos asserts that even after his trial counsel was given a copy of the hearing transcript at trial, he failed to request a necessary continuance to assess the import of the document.

Under the standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

[a] claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). Importantly, a court considering a claim of ineffectiveness of counsel “need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.” Id.

In the instant ease, it is clear that Foto-poulos cannot satisfy the Strickland prejudice element. At trial, Fotopoulos adamantly insisted that he be permitted to testify. As a result, the damaging evidence from his indigency hearing was certain to be used to impeach him during the State’s cross-examination, regardless of his attorney’s pretrial investigation, advice, or trial tactics. Therefore, even if the preparation and conduct of appellant’s trial counsel were deficient, they were still irrelevant to the impeachment of Fotopoulos through the use of his prior testimony. This impeachment was unavoidable, even by a superb attorney.

Next, Fotopoulos argues that his attorney rendered constitutionally deficient assistance of counsel because he failed to properly prepare for trial through a full investigation for evidence that could have been used either to impeach the testimony of Deidre Hunt or refute the State’s theory that Deidre Hunt was dominated by Fotopoulos throughout the time period surrounding the commission of the murders. The central theory advanced by the State at trial was that Deidre Hunt was dominated by Fotopoulos, and that he masterminded the entire chain of events which left Ramsey and Chase dead (and Lisa Fotopoulos severely wounded). Through posttrial investigation, Fotopou-los has identified information which, he asserts, should have been used at trial to rebut this theory. The evidentiary material cited by Fotopoulos falls into two major categories; we address each in turn.

Fotopoulos cites portions of the State’s arguments, as well as evidence submitted at Deidre Hunt’s sentencing hearing, to show that the picture of the crimes the State painted during that proceeding was different from the rendition it presented to Fotopoulos’s jury. During Hunt’s prosecution, the State did not contend that she was dominated by Fotopoulos; instead, it argued and introduced evidence indicating that she had participated in the murders voluntarily to gain a secure future with Fotopoulos.

When Fotopoulos’s trial counsel was asked about the information revealed at Hunt’s sentencing hearing and his decision not to use it at trial, this exchange occurred:

Q: When you were representing Mr. Fotopoulos at trial, was the State trying to prove that Mr. Fotopoulos controlled and dominated Deidre Hunt?
A: I think to a certain extent, yes.
Q: Was Deidre Hunt’s sentencing phase conducted prior to Mr. Fotopou-los’s trial?
A: Yes, it was.
Q: And did you attend that sentencing phase?
A: Yes, I did.
Q: Now, at that sentencing phase, was the State trying to prove that Dee Hunt was not dominated and controlled by Mr. Fotopoulos?
A. Yes. I think that they focused more on Deidre Hunt’s own volitional acts, yes.
Q: At that time, why did you not present witnesses that they had called at Deidre Hunt’s penalty phase to show that Deidre Hunt was not being abused and assaulted and intimidated and coerced?
A: ... If you’re asking for my reasoning as to why I didn’t bring in any of that other evidence ... it wouldn’t have been as effective as just clearly watching and listening to the videotape of Deidre Hunt telling her story.

Under the Strickland v. Washington test, proper review requires this Court to “reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at that time.” 466 U.S. at 689, 104 S.Ct. 2052. Additionally, we have stated that “[t]he standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result.” Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995).

When considering Fotopoulos’s ineffective assistance of counsel claims, the trial court concluded:

[T]he defendant’s assertion that trial counsel was ineffective for not adequately investigating and utilizing evidence of Diedre Hunt’s background and “domination” is also rejected. Carmen Corrente testified, without contradiction, that he did in fact attend Diedre Hunt’s 1999 sentencing proceeding as part of his preparation for Mr. Fotopoulos’ defense. In addition, he conducted a lengthy hours long deposition of Ms. Hunt prior to arriving at his trial strategy in dealing with Ms. Hunt through cross-examination. This Court finds that none of the evidence adduced at the evidentiary hearing in this cause could have led to a reasonable conclusion by the jury in this case that anyone other than Konstanti-nos Fotopoulos was the prime motivator, leader, and dominate [sic] member of this group of co-conspirators and bore prime responsibility for the deaths of Kevin Ramsey, Bryan Chase, and the attempted murder of Lisa Fotopoulos rested with the defendant [sic].
Any evaluation of the ages of the parties involved, there [sic] respective educations, as well as their positions within the community, as well as review of the evidence adduced as to Fotopoulos’ ongoing criminal activities in counterfeiting, fascination with offensive weapons and his predilection for commando-like activities in hiding weapons and other paraphernalia around his home and in the woods, as well as his obvious motive in eliminating witnesses and affecting [sic] the death of the wife who was trying to divorce him and cut him off of his financial well-being, all point to the defendant, not Diedre Hunt, as the dominating influence in this reprehensible plan of multiple murders. Certainly, the physical evidence adduced in this case, the videotape with Fotopoulos’ voice located at Fotopoulos’s home, the discovery of the spent cartridge apparently from the AK-47 in Fotopoulos’ vehicle and the testimony from all of the cocon-spirators at the original trial dovetailed to present a picture of Konstantinos Fo-topoulos as the instigator and cause of the deaths in this case. None of the co-conspirators called to testify by Mr. Fo-topoulos at the evidentiary hearing in any way recanted their prior substantive testimony that it was in fact Fotopoulos who suggested, planned, and implemented the killings at issue; to the contrary they reaffirmed that prior sworn testimony.

State v. Fotopoulos, Nos. 89-7632, 90-1995, 90-6668, order at 12-13 (Fla. 7th Cir. Ct. order filed June 15, 2000).

Analyzing the conduct of trial counsel under the parameters established in Strickland and Cherry, we conclude that Fotopoulos’s trial counsel simply made a strategic decision when he decided not to use the information he received during his attendance at Hunt’s sentencing hearing. As the issue is not “what present counsel or this Court might now view as the best strategy, but rather whether the strategy was within the broad range of discretion afforded to counsel actually responsible for the defense,” Occhicone v. State, 768 So.2d 1037, 1049 (Fla.2000), this attack upon Fo-topoulos’s trial counsel’s performance must fail because his performance has not been “shown to be outside the broad range of reasonably competent performance under prevailing professional standards.” Maxwell, 490 So.2d at 932. We find no error in the trial court’s decision on this claim.

In a similar fashion, Fotopoulos asserts an ineffective assistance of counsel claim regarding witnesses that could have been contacted and used at trial by his trial counsel, but were not. He argues that his counsel’s lack of pretrial investigation constituted deficient performance, and the absence of these witnesses’ testimony at trial prejudiced the defense. Each of the witnesses identified by Fotopoulos, and heard from during the evidentiary hearing below, could have been presented during the initial trial to impeach or rebut the testimony of Deidre Hunt regarding her domination by Fotopoulos.

Upon a review of the record, however, we conclude that the evidence proffered by Fotopoulos here is extremely tangential information that even the most diligent investigator would have not uncovered. The probative and strategic value of any of this testimony at trial is extremely dubious. For this reason, we are confident in our conclusion that Fotopoulos’s trial counsel did not render ineffective assistance by failing to locate these witnesses. This claim is without merit.

Fotopoulos next asserts that his trial counsel was ineffective because he did not attempt to preclude the admission into evidence of a particular .38 caliber pistol. However, Fotopoulos does not make a credible argument explaining why the pistol should have been suppressed, or what prejudice Fotopoulos suffered as a result of the pistol’s “wrongful” admission into evidence. Fotopoulos admits in his brief that Deidre Hunt testified at Fotopoulos’s trial that the pistol was an untraceable weapon that she planned to retrieve from its hiding place for use in the murder of Lisa Fotopoulos. Thus, there were certainly facts in evidence connecting the weapon to the Hunb-Fotopoulos conspiracy. As Fotopoulos elucidates no theory under which this pistol was wrongfully admitted into evidence, his trial counsel certainly did not render ineffective assistance by not attempting to keep it from the jury. See Engle v. Dugger, 576 So.2d 696 (Fla.1991) (a court will not label counsel ineffective for failing to raise meritless claims); Card v. State, 497 So.2d 1169 (Fla.1986). We find this claim to be without merit.

Fotopoulos’s next claim is that his trial counsel’s performance during a hearing on the suppression of evidence seized from his home was substandard. As trial counsel presented no witnesses or any evidence of any kind at the hearing, it is asserted that his conduct fell below the Constitution’s mandates regarding effective assistance of counsel. Based upon favorable rulings entered by the trial court, the State was able to enter severely damaging items into evidence, including the videotape of the Ramsey murder, an AK-47 assault rifle, a .22 caliber pistol, ammunition, and “other paraphernalia.”

Fotopoulos’s argument here is twofold. First, he asserts that an effective trial counsel would have located Angelo Katsouleas, a friend of Fotopoulos’s, and had him testify that the brown bag seized from the family garage (inside of which the videotape was found) belonged to Fotopou-los. This testimony would have certainly assisted the defense in establishing the argument that Fotopoulos had a privacy interest in the contents of the bag—an interest violated when the bag and its contents were seized by the police.

On its face, this argument creates the impression that trial counsel must have fallen below acceptable standards by failing to obtain Katsouleas’s name from his client. It is what Fotopoulos has failed to include in his argument, however, that is key here. When Fotopoulos and his counsel originally discussed the brown bag, Fotopoulos told his attorney that the bag was not his. It is absolutely untenable to assert now that trial counsel rendered ineffective assistance of counsel by not searching for witnesses to testify regarding Fotopoulos’s ownership of the bag, when Fotopoulos himself foreclosed such investigation. Just as counsel will not be considered ineffective for honoring his client’s wishes, he cannot be deemed ineffective for relying on his client’s statements when he had no reason to doubt his chent’s veracity. Fotopoulos’s trial attorney performed properly under the circumstances, despite initially laboring under a completely incorrect assumption. As Fo-topoulos himself misled his trial counsel, he cannot be heard to complain now of the consequences which followed.

The second argument advanced by Fotopoulos here is that the consent given the authorities by Mary Paspalakis and Lisa Fotopoulos to search their home following the attempted murder did not properly cover the two bags belonging to Foto-poulos that were located within the house. Since defense counsel failed to properly argue this in the trial court, Fotopoulos contends that he rendered ineffective assistance. The foundation for this assertion is primarily Justice O’Connor’s concurring opinion in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). There, Justice O’Connor stated that “[a] homeowner’s consent to a search of the home may not be effective consent to a search of a closed object inside the home.” 468 U.S. at 725, 104 S.Ct. 3296 (O’Connor, J., concurring); see also United States v. Basinski, 226 F.3d 829 (7th Cir.2000) (detailing the factors for deciding when third-party consent to search a closed container is valid). When applied to the instant case, however, the persuasive value of Justice O’Connor’s words is significantly diminished. First, the brown bag was not closed when Detective Adamy looked inside it and spotted the videotape. Pursuant to the consent he had been given, the detective was looking through the garage area, where he spotted the videotape “in an open bag, like a satchel-type bag or something like that, which was unzipped.” As the officer was in the home pursuant to the consent of two residents and observed the videotape in plain view, seizure was entirely proper. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Because Fotopoulos’s suppression arguments regarding the brown bag have no merit, we find no fault with trial counsel’s failure to present them. See Engle, 576 So.2d at 699-701; Card, 497 So.2d at 1177.

With respect to the black bag that Fotopoulos had stowed in the family barbeque pit, the success or failure of a suppression effort here revolves around an analysis of whether the consent to search granted by Mrs. Paspalakis and Lisa Foto-poulos extended to properly cover this bag. In the absence of evidence showing that the owner of a closed container has affirmatively forbidden the possessor from consenting to a search, the law is clear that a person having joint control of a dwelling with an absent resident may validly consent to the search of all areas under mutual control. See United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

In the hearing below, when Foto-poulos was asked about his living situation at the time of the search, the following exchange occurred:

Q: And you had an agreement with your mother-in-law that you would stay in the [her] house until your other house was built and you would move out?
A: Was built and finished, yes.

Clearly, from this anecdote, it appears that Fotopoulos and his wife were living in his mother-in-law’s home. As residents of the home, both Mrs. Paspalakis and Mrs. Fo-topoulos had the requisite authority to grant the police permission to search their home. See Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793. In addition, Fotopoulos’s description of the circumstances surrounding his storage of the black bag in the barbeque area makes it clear that he never forbade anyone to allow a search of it. Thus, Paspalakis and Fotopoulos had actual authority to consent to a search of the property, and gave their consent to the police. Under the Supreme Court’s present jurisprudence, arguments in favor of suppression at trial would have failed; thus, counsel’s failure to raise them is certainly not “outside the broad range of reasonably competent performance under prevailing professional standards.” Maxwell, 490 So.2d at 932. We find Fotopoulos’s arguments regarding his counsel’s conduct at his suppression hearing without merit, and deny the requested relief based thereon.

In his final substantive claim, Fotopoulos asserts that the vacation of Deidre Hunt’s death sentences by this Court and the subsequent resentencing to two life sentences following retrial constitutes newly discovered evidence in his case. He argues that since the State was allowed to inform Fotopoulos’s trial jury that Hunt, the follower, had been sentenced to death, it is only natural that the jury members felt required to recommend that the leader of the conspiracy, Fotopou-los, be given the death penalty as well.

In Jones v. State, 591 So.2d 911 (Fla.1991), this Court updated the standard for analyzing newly discovered evidence claims, stating:

[W]e hold that henceforth, in order to provide relief, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. The same standard would be applicable if the issue were whether a life or death sentence should have been imposed.

Id. at 915. Thus, for Fotopoulos’s newly discovered evidence claim to warrant this Court’s ordering a new penalty phase, he must establish that if the information regarding Hunt’s resentencing was before a new jury, it would probably recommend that he be sentenced to life in prison.

We have had occasion in the past to address the effect that a codefendant’s re-sentencing has upon a previously sentenced defendant. Consistently, this Court has held that “the sentence of an accomplice may indeed affect the imposition of a death sentence upon a defendant.” Foster v. Florida, 778 So.2d 906, 922 (Fla.2000); see also Keen v. State, 775 So.2d 263, 285-86 (Fla.2000); Gafford v. State, 387 So.2d 333, 337 (Fla.1980). Just as steadfastly in this situation, however, we have held that “[disparate treatment of a codefendant, however, is justified when the defendant is the more culpable participant in the crime.” Larzelere v. State, 676 So.2d 394, 407 (Fla.1996); see also Foster, 778 So.2d at 922, Ray v. State, 755 So.2d 604, 611-12 (Fla.2000); Hayes v. State, 581 So.2d 121, 127 (Fla.1991).

Significantly, when faced with the evidence presented at the hearing in this cause, the trial court declared:

This Court also rejects the defendant’s assertion that Deidre Hunt’s 1998 re-sentencing to life imprisonment constitutes “newly discovered evidence” justifying a resentencing proceeding for the defendant. As previously noted the evidence originally presented in this cause, and uncontroverted by any evidence adduced by the defendant, demonstrates that Konstantinos Fotopoulos was the prime movant and dominant actor in the killings at issue. He carried the motive that caused the death of Mark Kevin Ramsey and Bryan Chase and the near death of his wife Lisa. Under the circumstances in this case the defendant presents no basis for this court to determine under a “proportionality” analysis that a resentencing is warranted. The defendant was the most culpable and the most deserving of the death penalty. The overwhelming evidence of guilt adduced against the defendant for the crimes at issue and the great weight of the numerous aggravating cireum-stances that exist against a minimum of mitigation does not warrant re-visiting Fotopoulos’ death penalties.

Clearly, the trial court was of the opinion that the roles Hunt and Fotopoulos each played in the murders justified the imposition of differing sentences. As there certainly was competent evidence before the court below to support this conclusion, we will not “substitute [our] view of the facts for that of the trial judge.” State v. Spaziano, 692 So.2d 174, 175 (Fla.1997). As a result, we deny relief based upon Fotopou-los’s newly discovered evidence claim.

Habeas Corpus Petition

In his first two ineffective assistance of appellate counsel claims, Fotopou-los simply recharacterizes the claim that he raised in his postconviction motion appeal regarding the State’s differing positions in the Hunt and Fotopoulos trial court proceedings. Fotopoulos contends that his appellate counsel was ineffective because he should have asserted that the different positions taken by the prosecution violated the principles of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and because he failed to assert that Fotopoulos’s trial counsel was ineffective for not using the differing testimony at trial. Because the facts and argument underlying these two claims are identical to those identified and raised during Fotopoulos’s 3.850 appeal, Fotopoulos’s claims of ineffective assistance of appellate counsel are without merit. This Court has stated many times:

Although claims of ineffective assistance by appellate counsel are cognizable in habeas petitions, using a different argument to relitigate an issue in postconviction proceedings is not appropriate. Furthermore, an allegation of ineffective counsel will not be permitted to serve as a means of circumventing the rule that habeas corpus proceedings do not provide a second or substitute appeal.

Medina v. Dugger, 586 So.2d 317, 318 (Fla.1991) (quotation marks and citations omitted); see also Thompson v. State, 759 So.2d 650, 657 n. 6 (Fla.2000) (holding that it is not proper to argue a variant to an issue already raised in a habeas petition); Mann v. Moore, 794 So.2d 595, 600-01 (Fla.2001) (same). Thus, these claims of ineffective assistance of appellate counsel are proeedurally barred.

In his third ineffective assistance of counsel claim, Fotopoulos contends that his appellate counsel rendered constitutionally deficient assistance because he failed to argue that the trial court erred in admitting certain testimony by Deidre Hunt during the guilt phase of Fotopou-los’s trial. Specifically, Fotopoulos asserts that the State improperly presented evidence of an episode in which Hunt was abused by Fotopoulos. When Fotopoulos discovered that Hunt was packing her belongings in preparation for leaving the house, he slapped her, placed a handgun to her ear, forced her to destroy and bum photographs of her former boyfriend, and coerced her into unpacking and remaining in the house. Finally, Fotopoulos bound Hunt’s hands with a coat hanger, covered her mouth with his hand, and burned her right breast with a smoldering cigarette.

Midway through this testimony, the defense objected, but the trial court overruled the objection, stating:

To the point that you made in your opening statement that you contend that she’s the principal cause behind these crimes, I feel testimony regarding their relationship and her state of mind would be relevant.
So, I think the relationship is one of the central issues in this case and will allow the question.

Clearly, when faced with this claim, the, trial court found the testimony relevant to the issue of domination, and relative responsibility between Hunt and Fotopoulos for the murders committed in the instant case.

Fotopoulos asserts that this testimony relating Hunt’s state of mind was improper under Williams v. State, 117 So.2d 473 (Fla.1960). In Williams, this Court condemned the situation in which the State is permitted to “go too far in introduction of testimony about [another] crime so that the inquiry transcended the bounds of relevancy to the charge being tried, and made the later offense a feature [of the trial] instead of an incident.” Id. at 475. First, it must be noted that it is clear that the evidence identified by Fotopoulos was relevant to his guilt or innocence. A major facet of the trial was the relative culpa-bilities of Hunt and Fotopoulos, and the credibility of Hunt’s assertions that she was dominated by Fotopoulos. Absent some prejudice to Fotopoulos, this evidence was admissible.

The contention that the testimony cited by Fotopoulos somehow “devolve[d] from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant,” id., and became a feature of the trial is illogical. Fotopoulos has seized upon a microcosm of the voluminous trial record in this case and asserts that this four-page entry in the record somehow vitiated the fairness of the entire trial. The trial court did not abuse its discretion' in admitting this evidence, and its admission certainly did not cause the trial to focus on ancillary character issues instead of the guilt or innocence of Fotopoulos.

Moreover, we conclude that, even if the trial court did err, this error was harmless since this portion of Hunt’s testimony did not contribute to the jury’s decision to convict the petitioner. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). Thus, appellate counsel did not render ineffective assistance for failing to raise a meritless claim. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Finally, this Court does not fault appellate attorneys for raising “only the strongest points on appeal,” because “the assertion of every conceivable argument has the effect of diluting the impact of the stronger points.” Atkins v. Dugger, 541 So.2d 1165, 1167 (Fla.1989); see also Floyd v. State, 808 So.2d 175 (Fla.2002). Indeed, even the United States Supreme Court has held: “For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘col-orable’ claim ... would disserve the very goal of vigorous and effective advocacy....” Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Therefore, the failure of Fotopoulos’s appellate counsel to raise this dubious claim did not constitute ineffective assistance of counsel.

In a strikingly repetitive manner, Fotopoulos’s next habeas claim is that the vacation of Deidre Hunt’s death sentences by this Court and her subsequent resen-tencing to two life sentences following retrial constitutes newly discovered evidence in his case. Since Hunt and Fotopoulos were equally culpable defendants, Foto-poulos contends that his death sentence should be set aside to avoid an unconstitutional disparity in the sentences. This precise claim was raised during Fotopou-los’s rule 3.850 appeal. Clearly, Fotopou-los’s assertion of this claim in such a recurrent fashion is improper. As we stated in Parker v. Dugger, 550 So.2d 459 (Fla.1989), “habeas corpus petitions are not to be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in a rule 3.850 motion.” Id. at 460. Thus, this claim is without merit in this habeas corpus proceeding.

In the third claim contained in his habeas petition, Fotopoulos asserts that the Florida death sentencing statute is unconstitutional under the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Fotopoulos has previously asserted the substance of this exact claim in the direct appeal of his conviction and sentence. See Fotopoulos v. State, 608 So.2d 784, 787 (Fla.1992). This Court recently addressed this precise contention in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), concluding that Florida’s system of imposing the death penalty is not constitutionally infirm. As the claim that the Florida capital sentencing scheme is unconstitutional has been decided adversely to Fotopoulos’s contentions, his assertions are without merit.

Fotopoulos’s final two claims may be addressed in a summary fashion. In his fourth claim, Fotopoulos asserts that cumulative error deprived him of his right to a fundamentally fair trial. Because we conclude that the trial court below did not err, this claim is meritless. See Melendez v. State, 718 So.2d 746, 749 (Fla.1998). Finally, because Fotopoulos’s execution is not presently pending, his claim regarding his possible incompetency at the time of his execution is not properly reviewed at this time. See Hall v. Moore, 792 So.2d 447, 450 (Fla.2001) (holding that a habeas petitioner “cannot legally raise the issue of competency to be executed until after the death warrant is issued”); see also Fla. R.Crim. P. 3.811(c) (“No motion for a stay of execution pending hearing, based on grounds of the prisoner’s insanity to be executed, shall be entertained by any court until such time as the Governor of Florida shall have held appropriate proceedings for determining the issue pursuant to the appropriate Florida Statutes.”). Therefore, we decline to address this claim.

Conclusion

In accordance with the above analysis, we hold that the appellant has not presented any legal basis to set aside either his judgment or sentence of death. Therefore, the trial court’s denial of Fotopoulos’s motion to vacate the judgment against him and his sentence of death is affirmed. Additionally, Fotopoulos’s habeas corpus petition is denied.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, and QUINCE, JJ., and HARDING, Senior Justice, concur.

PARIENTE, J., concurring in result only with an opinion.

LEWIS, J., concurring in result only with an opinion, in which PARIENTE, J., concurs.

PARIENTE, J.,

concurring in result only.

I join in Justice Lewis’s opinion concurring in result regarding the failure of trial counsel to introduce evidence of the State’s differing positions regarding the culpability of Hunt and Fotopoulos at their separate trials, and I agree with Justice Lewis’s observations expressing concerns about the State’s inconsistent positions.

I also concur in the denial of relief under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), for the same reasons as in my concurring-in-result-only opinions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002). Although I believe that Ring compels us to recede from our statement in Mills v. Moore, 786 So.2d 532, 537-38 (Fla.2001), that death is the maximum penalty authorized for a first-degree, murder verdict under Florida law, this conclusion does not render Fotopou-los’s sentence infirm.

Two of the aggravating circumstances in this case were based on other convictions: a prior violent felony as to both murders and the commission of the second murder in the course of a burglary. See Fotopoulos v. State, 608 So.2d 784, 787 (Fla.1992). In Bottoson and King, we denied habeas relief to petitioners whose aggravating circumstances included prior violent felony convictions. Similarly, Fotopoulos is not entitled to relief under Ring and I concur in result only as to the denial of his petition for a writ of habeas corpus on this issue.

LEWIS, J.,

concurring in result only.

Although I am in agreement with a large part of the majority’s opinion in this matter and concur in the result, I write to voice my disagreement with its conclusion regarding Fotopoulos’s trial counsel’s failure to introduce evidence of the State’s conflicting conduct during Deidre Hunt’s sentencing proceedings. After reviewing the record before this Court, I have grave concerns as to the State’s conduct during the trials of the separate but related Hunt and Fotopoulos charges. Upon final analysis, I am compelled to conclude that appellant’s counsel at trial failed to render effective assistance of counsel because of his inactivity in the face of compelling evidence that should have been used and presented during Fotopoulos’s penalty proceeding. In my view, it is the prejudice element of Strickland that, although a close question and arguable, has not been established here.

As a threshold issue, it is beyond debate that a state attorney in Florida is a “quasi judicial officer of the court. It is [his or her] duty to see that a defendant gets a fair and impartial trial.” Gluck v. State, 62 So.2d 71, 73 (Fla.1952). As an officer of the court, “he [or she] is charged with the duty of assisting the Court to see that justice is done,” and it is not his or her duty “merely to secure convictions.” Smith v. State, 95 So.2d 525, 527 (Fla.1957); see also Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Thus, a state attorney is no mere litigant, but an important participant in our system of fairly enforcing our criminal laws.

Since the prosecuting attorney is an integral part of the system of justice and a representative of the State, it is repugnant to the tenets of due process and fundamental fairness that the State would purposefully present differing renditions of the same factual scenario during separate proceedings, simply to obtain a particular result against codefendants. This principle may prevent the State from taking differing positions at separate trials on the same facts; however, this limitation is necessary to ensure fundamental fairness to all those who stand accused of criminal activity. A review of the record here indicates that the State did present a version of the facts at issue here in direct conflict with the view presented in Hunt’s proceedings, and Fotopoulos’s trial counsel, although having full knowledge of such conduct, did not attempt to even explore the matter for the benefit of his client.

The record of Hunt’s sentencing proceeding is replete with examples of the State both submitting evidence and advancing arguments that Hunt was an independent, bloodthirsty actor in the instant conspiracy, and that she was not in fact dominated by Fotopoulos in any fashion. The attorneys representing the State in Hunt’s case made the following statements:

[T]he evidence will not establish, will clearly not establish was [sic] that Deidre Hunt was in any way acting under coercion or duress in the killing of Mark Kevin Ramsey.
While Mark Ramsey had been sent away by Kosta to scout around the woods that Kosta Fotopoulos had opened up his trunk of his BMW and was standing at the back of the BMW’s trunk, Kosta Fotopoulos advised Deidre Hunt that either she or Mark Ramsey was coming out of the woods and that she had a choice....
[S]he was not acting under substantial domination, duress, or control of Kosta Fotopoulos.
Deidre is doing it for money, for wealth, for power. So where is the substantial domination of Kosta [Fotopou-los]?
There is domination here. There is the domination of the lure of money and power to Deidre Hunt, not the domination of Kosta Fotopoulos.
You heard the State’s two experts tell you that Deidre could have walked away any time she wanted to.
Everything we have seen from Deidre Hunt is “I am running the show.”
We submit to you that there is no basis for finding that she was under the substantial domination of Kosta Foto-poulos as that is intended under the statutory mitigating factors.
Kosta might have been the boss, but Deidre is the lieutenant.
This is no act of someone suffering under the domination of another person, your Honor. This is a person that clearly took pleasure in what they did and went methodically about doing it.

Additionally, the State presented evidence during Hunt’s trial attempting to demonstrate that Fotopoulos did not force and could not have forced Hunt to murder Kevin Ramsey by aiming a weapon at her while she shot Ramsey.

In 1989, this Court decided Parker v. State, 542 So.2d 356 (Fla.1989), wherein the defendant asserted that “the State violated Parker’s due process and eighth amendment rights by taking different positions [in the trials of codefendants] concerning who fired the fatal shot.” Id. at 357. Although we did not address the substance and merits of Parker’s contentions, we clearly stated that “Parker was not precluded from presenting this matter to the jury.” Id. at 358; see also Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (United States Supreme Court held that barring the introduction of a witness’s prior testimony at a codefendant’s trial which tended to refute the State’s theory in a subsequent proceeding violated the Due Process Clause of the Fourteenth Amendment); United States v. Salerno, 937 F.2d 797, 812 (2nd Cir.1991) (holding that previous theories of prosecution are admissible in later proceedings as admissions of the prosecuting authority). Thus, in Florida,' evidence that the State has previously presented differing versions of the facts at issue in a criminal prosecution is clearly admissible.

When Fotopoulos’s trial counsel testified in the proceedings below that in his view, evidence of the State’s conflicting theories of the instant crimes was unnecessary because the videotape of the Ramsey murder showed clearly that Hunt was not dominated, the following question and answer exchange occurred:

Q: But you were trying to keep that stuff out entirely. Why not make the argument that the State is not being consistent here, trying to say that the reason they want it in is because she was dominated and controlled, when just a month prior, at Dee Hunt’s penalty phase, they were arguing that she was not dominated and controlled and possibly being able to keep all of that evidence out?
A: I don’t really recall the thought process on that. I can’t answer it.
So if you’re asking for my reasoning as to why I didn’t bring in any of that other evidence, it was questionable as far as admissibility, I believe, and it wouldn’t have been as effective as just clearly watching and listening to the video tape of Deidre Hunt telling her story.

I suggest that Fotopoulos’s trial counsel did not make strategic decisions here; it appears that the thought of submitting evidence of the State’s varying, conflicting renditions of these murders never occurred to him, and if he researched the possibility of doing so, he either failed to find the controlling Parker authority or did not read the decision. Counsel apparently never even considered that the State was presenting both facts and arguments to convict Fotopoulos that were totally contrary to the facts and arguments that the same attorney representing the State had presented shortly before during the penalty phase of Hunt’s trial. Even if counsel was relying on the videotape here to demonstrate Fotopoulos’s lack of domination, nothing precluded, and competence required, that he also present the blatantly inconsistent evidence and arguments submitted by the State in these two proceedings.

The decision to simply ignore the available evidence cannot be considered simple strategy. In my view, trial counsel’s response to this flaw is an excuse, not a valid strategic decision. I find it both inexcusable and “outside the broad range of reasonably competent performance under prevailing professional standards” that counsel did not introduce evidence from Hunt’s hearing during Fotopoulos’s trial. A competent lawyer in a criminal case must properly research every reasonable avenue of defending a client, and compliance with this duty is certainly even more important in capital cases.

Additionally, I conclude that the trial court’s analysis and resolution of the instant issue is both inadequate and improperly focuses upon the nature of Fotopoulos and Hunt’s relationship. While the majority concludes that the trial court did not err, see majority op. at 1129, I respectfully disagree. The trial court did not adequately resolve Fotopoulos’s claim that his attorney rendered ineffective assistance of counsel because he did not present evidence of the differing factual positions presented by the State. Indeed, the court’s order does not even mention this issue; it simply dismissed the petitioner’s contentions because “Fotopoulos was the prime motivator” and none of the conspirators recanted their trial testimony. Certainly, this weighty issue deserved discussion by the trial court, and I cannot agree with the majority’s conclusion that the court did not err when the trial court’s order does not even mention this claim, and, most assuredly, provides no analysis.

The prejudice resulting from Fotopou-los’s counsel’s failure to act here, however, is not as clear under the Strickland requirements and standards. The jury certainly could have been swayed by evidence showing that the attorney representing the State in this proceeding had painted an entirely different picture of the events in another criminal prosecution. When one involved in litigation has the ability to clearly demonstrate that the opposing party is attempting to mislead the jury, such is powerful and persuasive material for consideration. I suggest that jurors respond unfavorably and generally reject the positions and arguments submitted by a party, including the State, shown to have been less than candid by evidence such as that available to Fotopoulos’s trial counsel here. Therefore, the absence of this extraordinarily persuasive evidence from Fo-topoulos’s penalty phase certainly causes concern for the propriety of the proceedings. See Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). However, the Strickland standard provides relief only when it is reasonably probable that a different result would have been obtained without counsel’s failure and the deficiency “so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986).

Based upon my conclusion that Fotopou-los has shown a failure in the performance of his trial counsel, but the totality of the circumstances do not satisfy the prejudice element, I would affirm on this basis only. As to the majority’s view that Fotopoulos’ counsel did not render ineffective assistance during the penalty phase, I respectfully dissent. I therefore concur in only the result here.

PARIENTE, J., concurs.

      . Claim I alleged that newly discovered evidence established Fotopoulos's innocence in the Ramsey murder. Claim IV asserted that ineffective assistance of counsel or the prosecutor's improper conduct in exercising peremptory challenges rendered Fotopoulos’s convictions and death sentences fundamentally unfair. Claim V alleged that ineffective assistance of counsel or prosecutorial misconduct in cross-examining Hunt rendered Foto-poulos’s convictions and death sentences fundamentally unfair. Claim IX asserted that Fotopoulos's trial counsel provided ineffective assistance by failing to conduct proper pretrial investigation and permitting impeachment of Fotopoulos on the basis of prior testimony. Claim XII argued that Fotopoulos’s trial counsel's assistance was ineffective for failing to prepare Fotopoulos for cross-examination and failing to object to the prosecutor's improper conduct and improper closing argument. Claim XV alleged ineffective assistance of trial counsel for failing to object to the state's knowing introduction of false testimony. Claim III alleged that the grossly improper conduct of Fotopoulos’s first trial counsel amounted to ineffective assistance of counsel.

      .Fotopoulos asserts that (1) the trial court erred in finding that certain of his claims were procedurally barred, (2) his trial counsel failed to provide effective assistance of counsel by not requesting a continuance when faced with certain impeachment evidence, (3) his trial counsel failed to provide effective assistance of counsel by not fully investigating and gathering information that could have been used to impeach Deidre Hunt and rebut a central theory of the State's case, (4) his trial counsel failed to provide effective assistance of counsel by not seeking to stop the admission into evidence of a particular .38 caliber pistol, (5) his trial counsel failed to provide effective assistance of counsel during a suppression hearing, (6) ■ his trial counsel failed to provide effective assistance of counsel by not objecting to the State’s characterization of the relevant facts with reference to black jurors, (7) that when cumulated, the errors of his trial counsel denied Fotopoulos his rights to a fair trial and due process, and (8) that the resentencing of Deidre Hunt constitutes newly discovered evidence justifying a new trial or sentencing hearing.

      . In his habeas corpus petition, Fotopoulos contends that (1) his appellate counsel rendered constitutionally deficient assistance, (2) the resentencing of Deidre Hunt results in an unconstitutional disparity in sentences between coconspirators, (3) the Florida capital sentencing statute and procedures are unconstitutional, (4) cumulative error deprived him of a fundamentally fair trial, and (5) his execution will violate the Eighth Amendment to the United States Constitution because he may be incompetent at the time his sentence is carried out.

      . In his first claim, that the trial court erred in finding that certain of his claims were procedurally barred, Fotopoulos presents absolutely no substantive issue for this Court to address. Therefore, we find that this claim is insufficiently presented for review and without merit. See Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999). Additionally, Fotopoulos asserts that his trial counsel's assistance was constitutionally deficient because he failed to object to the State's characterization of two black jurors' responses during voir dire. As we addressed and rejected this claim on Foto-poulos's direct appeal, see Fotopoulos v. State, 608 So.2d 784, 787-88 (Fla. 1992), raising it again here as an ineffective assistance of counsel claim is improper. See Medina v. State, 573 So.2d 293, 295 (Fla.1990).

      . Two of the witnesses that Fotopoulos asserts his counsel should have located possessed information regarding allegedly illegal conduct perpetrated by Hunt when she was in her mid-teens, in New Hampshire. Another of the witnesses testified about her general impressions of Deidre Hunt’s personality, as well as a time when she witnessed Hunt "waving around” a gun while riding a bicycle with Fotopoulos. Finally, Fotopoulos elicited the testimony of a witness regarding his brief romantic involvement with Hunt, primarily to refute Hunt's trial testimony that she had been abused and taken advantage of by him.

      . See Sims v. State, 602 So.2d 1253, 1257-58 (Fla.1992).

      . See, e.g., Basinski, 226 F.3d at 835.

      . The appellant admitted that his wife noticed him putting the bag in the barbeque pit and described the resulting discussion:
      She just happened to be looking out and said, What are you doing there? And I was — I said, Well, I'm just putting something away. And she didn’t know exactly what it was. She did not know whether it was in the barbeque pit or somewhere behind it or in the area around because she was about 40, 50 feet away.

      . See Rodriguez; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

      . Fotopoulos asserts that when the effects of the many asserted errors identified in his brief are cumulated, he has been denied his fundamental rights to a fair trial and due process. However, as we conclude that all of Fotopoulos’s claims are either meritless or procedurally barred, there is no cumulative effect to consider. See Melendez v. State, 718 So.2d 746, 749 (Fla.1998).

      . Deidre Hunt’s resentencing qualifies as newly discovered evidence because it occurred after Fotopoulos's trial and sentencing. See Jones, 591 So.2d at 916 (newly discovered evidence "must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence”).

      . In a filing of supplemental authority, Foto-poulos also contends that Florida's death penalty scheme is unconstitutional under the United States Supreme Court’s Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), decision.

      . Although not analyzed in Parker v. State, under the Florida Evidence Code, the transcript of Hunt’s sentencing proceeding could have possibly been admitted into evidence as the recorded recollection of the transcriptionist, records of a regularly conducted business activity, or as a public record. See §§ 90.803(5)-(6), (8), Fla. Stat. (2001).

      . While the Eleventh Circuit Court of Appeals held in Parker v. Singletary, 974 F.2d 1562 (11th Cir.1992), that trial counsel did not render ineffective assistance where he failed to discover the State’s differing theories of prosecution, see Parker, 974 F.2d at 1578-79, the scenario before this Court in the instant case is entirely different. Here, there is no question that Fotopoulos’s counsel had evidence of the State's differing theories of prosecution in his possession-it is the failure to use this information at trial, however, that I deem ineffective assistance of counsel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMENDMENT TO RULES REGULATING THE FLORIDA BAR RE RULES OF PROFESSIONAL CONDUCT.
    No. SC02-1689.
    Supreme Court of Florida.
    Jan. 23, 2003.
    Tod Aronovitz, President, The Florida Bar, Miami, FL; Miles A. McGrane, III, President-elect, The Florida Bar, Coral Gables, FL; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Paul F. Hill, General Counsel, The Florida Bar, Tallahassee, FL; Michael P. McMahon, Chair, Special Commission on Insurance Practices II, Orlando, FL; Mary Ellen Bateman, Deputy Director, Legal Division, The Florida Bar, Tallahassee, FL; and Elizabeth Clark Tar-bert, Ethics Counsel, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

Based upon recommendations from The Florida Bar’s Special Commission on Insurance Practices II, The Florida Bar petitions this Court to consider amendments to the Rules Regulating the Florida Bar. Specifically, the Bar has proposed amending rule 4-1.7 (Conflict of Interest; General Rule) and rule 4-7.10 (Firm Names and Letterhead). We have jurisdiction. See art. V, § 15, Fla. Const. Notice of the proposed amendments was published in The Florida Bar News, and no adverse comments were filed with this Court. We' approve the petition and adopt the proposed amendments as reflected in the appendix to this opinion. The proposed amendments shall become effective as of July 1, 2003.

We have determined the effective date with the intent that lawyers will have time in which to be in compliance by that date. We direct the Bar to publish in The Florida Bar News that these amendments have been adopted and that lawyers are to be in compliance on the effective date. The Bar has advised that it will assist lawyers with issues of compliance, which we expect and urge lawyers to use. Furthermore, the Bar is to implement continuing legal education programs to educate lawyers about their responsibilities under these new rules and to cover issues in respect to compliance.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ„ and SHAW, Senior Justice, concur.

APPENDIX

RULE 4-1.7 CONFLICT OF INTEREST; GENERAL RULE

(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client; and

(2) each client consents after consultation.

(b) Duty to Avoid Limitation on Independent Professional Judgment. A lawyer shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation.

(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

(d) Lawyers Related by Blood or Marriage. A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.

(e) Representation of insureds. Upon undertaking the representation of an insured client at the expense of the insurer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida Bar related to conflicts of interest apply to the representation as they would in any other situation.

Comment

Loyalty to a client

Loyalty is an essential element in the lawyer’s relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See rule 4-1.16. Where more than 1 client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by rule 4-1.9. See also rule 4-2.2(c). As to whether a client-lawyer relationship exists or, having once been established, is continuing, see comment to rule 4-1.3 and scope.

As a general proposition, loyalty to a chent prohibits undertaking representation directly adverse to that client’s or another client’s interests without the affected client’s consent. Subdivision (a) expresses that general rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. Subdivision (a) applies only when the representation of 1 client would be directly adverse to the other and where the lawyer’s responsibilities of loyalty and confidentiality of the other chent might be compromised.

Loyalty to a chent is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the chent because of the lawyer’s other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the chent. Subdivision (b) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the chent. Consideration should be given to whether the chent wishes to accommodate the other interest involved.

Consultation and consent

A chent may consent to representation notwithstanding a conflict. However, as indicated in subdivision (a)(1) with respect to representation directly adverse to a chent and subdivision (b)(1) with respect to material limitations on representation of a chent, when a disinterested lawyer would conclude that the chent 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. When more than 1 chent is involved, the question of conflict must be resolved as to each chent. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and 1 of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent.

Lawyer’s interests

The lawyer’s own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer’s need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See rules 4-1.1 and 4-1.5. If the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest.

Conflicts in litigation

Subdivision (a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by subdivisions (b) and (c). An impermissible conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than 1 co-defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of subdivision (b) are met. Compare rule 4-2.2 involving in-termediation between clients.

Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer’s relationship with the enterprise or conduct of the suit and if both clients consent upon consultation. By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.

A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.

Interest of person paying for a lawyer’s service

A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty to the client. See rule 4-1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel’s professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer’s professional independence.

Other conflict situations

Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree.

For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.

Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of some jurisdictions. In Florida, the personal representative is the client rather than the estate or the beneficiaries. The lawyer should make clear the relationship to the parties involved.

A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the 2 roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer’s resignation from the board, and the possibility of the corporation’s obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not serve as a director.

Conflict charged by an opposing party

Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See scope.

Family relationships between lawyers

Rule 4-1.7(d) applies to related lawyers who are in different firms. Related lawyers in the same firm are also governed by rules 4-1.9 and 4-1.10. The disqualification stated in rule 4-1.7(d) is personal and is not imputed to members of firms with whom the lawyers are associated.

Representation of Insureds

The unique tripartite relationship of insured, insurer, and lawyer can lead to ambiguity as to whom a lawyer represents. In a particular case, the lawyer may represent only the insured, with the insurer having the status of a non-elient third party payor of the lawyer’s fees. Alternatively, the lawyer may represent both as dual clients, in the absence of a disqualifying conflict of interest, upon compliance with applicable rules. Establishing clarity as to the role of the lawyer at the inception of the representation avoids misunderstanding that may ethically compromise the lawyer. This is a general duty of every lawyer undertaking representation of a client, which is made specific in this context due to the desire to minimize confusion and inconsistent expectations that may arise.

RULE 4-7.10 FIRM NAMES AND LETTERHEAD

(a) False, Misleading, or Deceptive. A lawyer shall not use a firm name, letterhead, or other professional designation that violates subdivision (b)(1) of rule 4-7.2.

(b) Trade Names. A lawyer may practice under a trade name if the name is not deceptive and does not imply a connection with a government agency or with a public or charitable legal services organization, does not imply that the firm is something other than a private law firm, and is not otherwise in violation of subdivision (b)(1) of rule 4-7.2. A lawyer in private, practice may use the term “legal clinic” or “legal services” in conjunction with the lawyer’s own name if the lawyer’s practice is devoted to providing routine legal services for fees that are lower than the prevailing rate in the community for those services.

(c) Advertising Under Trade Name. A lawyer shall not advertise under a trade or fictitious name, except that a lawyer who actually practices under a trade name as authorized by subdivision (b) may use that name in advertisements. A lawyer who advertises under a trade or fictitious name shall be in violation of this rule unless the same name is the law firm name that appears on the lawyer’s letterhead, business cards, office sign, and fee contracts, and appears with the lawyer’s signature on pleadings and other legal documents.

(d) Law Firm with Offices in More Than 1 Jurisdiction. A law firm with offices in more than 1 jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

(e) Name of Public Officer in Firm Name. The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

(f) Partnerships and Authorized Business Entities. Lawyers may state or imply that they practice in a partnership or authorized business entity only when that is the fact.

(g) Insurance Staff Attorneys. Where otherwise consistent with these rules, lawyers who practice law as employees within a separate unit of a liability insurer representing others pursuant to policies of liability insurance may practice under a name that does not constitute a material misrepresentation. In order for the use of a name other than the name of the insurer not to constitute a material misrepresentation, all lawyers in the unit must comply with all of the following:

(1) the firm name must include the name of a lawyer who has supervisory responsibility for all lawyers in the unit;

(2) the office entry signs, letterhead, business cards, websites, announcements, advertising, and listings or entries in a law list or bar publication bearing the name must disclose that the lawyers in the unit are employees of the insurer;

(3) the name of the insurer and the employment relationship must be disclosed to all insured clients and prospective clients of the lawyers, and must be disclosed in the official file at the lawyers’ first appearance in the tribunal in which the lawyers appear under such name;

(4) the offices, personnel, and records of the unit must be functionally and physically separate from other operations of the insurer to the extent that would be required by these rules if the lawyers were private practitioners sharing space with the insurer; and

(5) additional disclosure should occur whenever the lawyer knows or reasonably should know that the lawyer’s role is misunderstood by the insured client or prospective clients.

Comment

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.” Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name that includes a geographical name such as “Springfield Legal Clinic,” an express disclaimer that it is not a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm.

Subdivision (a) precludes use in a law firm name of terms that imply that the firm is something other than a private law firm. Two examples of such terms are “academy” and “institute.” Subdivision (b) precludes use of a trade or fictitious name suggesting that the firm is named for a person when in fact such a person does not exist or is not associated with the firm. An example of such an improper name is “A. Aaron Able.” Although not prohibited per se, the terms “legal clinic” and “legal services” would be misleading if used by a law firm that did not devote its practice to providing routine legal services at prices below those prevailing in the community for like services.

Subdivision (c) of this rule precludes a lawyer from advertising under a nonsense name designed to obtain an advantageous position for the lawyer in alphabetical directory listings unless the lawyer actually practices under that nonsense name. Advertising under a law firm name that differs from the firm name under which the lawyer actually practices violates both this rule and subdivision (b)(1) of rule 4-7.2.

With regard to subdivision (f), lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests partnership in the practice of law.

All lawyers who practice under trade or firm names are required to observe and comply with the requirements of the Rules Regulating The Florida Bar, including but not limited to, rules regarding conflicts of interest, imputation of conflicts, firm names and letterhead, and candor toward tribunals and third parties.

Some liability insurers employ lawyers on a full-time basis to represent their insured clients in defense of claims covered by the contract of insurance. Use of a name to identify these attorneys is permissible if there is such physical and functional separation as to constitute a separate law firm. In the absence of such separation, it would be a misrepresentation to use a name implying that a firm exists. Practicing under the name of an attorney inherently represents that the identified person has supervisory responsibility. Practicing under a name prohibited by subsection (f) is not permitted. Candor requires disclosure of the employment relationship on letterhead, business cards, and in certain other communications that are not presented to a jury. The legislature of the State of Florida has enacted, as public policy, laws prohibiting the joinder of a liability insurer in most such litigation, and Florida courts have recognized the public policy of not disclosing the existence of insurance coverage to juries. Requiring lawyers who are so employed to disclose to juries the employment relationship would negate Florida public policy. For this reason, the rule does not require the disclosure of the employment relationship on all pleadings and papers filed in court proceedings. The general duty of candor of all lawyers may be implicated in other circumstances, but does not require disclosure on all pleadings.


author: COPE, J.

text:
    STATE FARM MUTUAL INSURANCE, Petitioner, v. Jo Carol KENDRICK, Respondent.
    No. 3D00-3022.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Akerman, Senterfitt & Eidson and Marcy Levine Aldrich and Nancy A. Copperth-waite, Miami, for petitioner.
    Angones, Hunter, McClure, Lynch & Williams and Christopher J. Lynch, Miami, for respondent.
    Before SCHWARTZ, C.J., COPE and FLETCHER, JJ.
   COPE, J.

State Farm Mutual Automobile Insurance Company petitions this Court for a writ of certiorari, seeking to quash an order compelling discovery and assessing sanctions in a class action suit brought by plaintiff Jo Carol Kendrick.

The challenged discovery order was obtained to assist the plaintiff in identifying potential class action members. Subsequently, the class action certification has been reversed. State Farm Mutual Automobile Ins. Co. v. Kendrick, 822 So.2d 516 (Fla. 3d DCA 2002). Both sides agree that the petition is moot insofar as the discovery order is concerned.

The petition also sought review of an order entered by the trial court which granted the plaintiffs motion for sanctions. The order directed State Farm to turn certain information over to the plaintiff, held that the plaintiff would be entitled to attorney’s fees for the expenses of the motion, and reserved ruling on whether a fine would be imposed at a later time. Because the judicial labor has not been completed on the sanctions order, in the exercise of discretion we decline to entertain this aspect of the petition.

For the stated reasons, the petition for writ of certiorari is denied.


author: SAWAYA, J.

text:
    FRONTIER INSURANCE COMPANY, Petitioner, v. AMERICAN TITLE SERVICES, etc., et al., Respondents.
    No. 5D02-2611.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    James G. Lindquist of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Petitioner.
    Anthony Britt of McKeever, Albert, Barth & Britt, Brandon, for Respondents.
   SAWAYA, J.

Frontier Insurance Company (“Frontier”) seeks certiorari review of a circuit court order that granted respondents’ motion to lift a stay entered by a foreign court in a delinquency proceeding involving Frontier as an insolvent insurer. We grant the petition and quash the order under review.

Frontier issued a professional liability insurance policy to American Title Services of Citrus County, Inc. (“American Title”). American Title sought coverage under this policy after being sued for performing allegedly negligent title services for Meadows of Citrus County, Inc. (“Meadows”) and Meadows Utility Company, Inc. (“Meadows Utility”). Frontier refused to honor American Title’s claim and issued a disclaimer of coverage to American Title. American Title, Meadows, and Meadows Utility filed a complaint against Frontier in Citrus County, Florida, for declaratory relief and breach of an insurance contract.

After the Florida action was commenced, the Supreme Court of the State of New York entered an order on October 10, 2001, in a delinquency proceeding involving Frontier, finding Frontier to be insolvent and directing the superintendent of insurance of that state to take possession of Frontier’s property for purposes of rehabilitation. The order of rehabilitation provided in part:

All persons are enjoined and restrained from commencing or prosecuting any action, lawsuits or proceedings against Frontier, or the superintendent as reha-bilitator.

The order further provided for a six-month stay in all cases in which Frontier was obligated to defend a party pursuant to an insurance contract and for an indefinite stay in all proceedings in which Frontier was a defendant in an action. Cf. § 631.041(l)(a), Fla.Stat. (2002).

With this order in hand, Frontier filed a notice of stay and suggestion of rehabilitation in the Citrus County Circuit Court on December 19, 2001. The plaintiffs in the Florida action filed a motion to lift the stay of proceedings on April 27, 2002, which motion was granted.

When they moved to lift the stay, the plaintiffs cited section 631.67, Florida Statutes (2002) which provides for an automatic six-month stay of all proceedings in which the insolvent insurer is a party or is obligated to defend a party, commencing when the insurer is adjudicated insolvent. The plaintiffs argued that the automatic six-month stay had expired by April 27, 2002, as the order of rehabilitation was entered October 10, 2001. At issue in the instant case, though, is the indefinite stay of all proceedings against Frontier ordered by the court in the domiciliary state, not the six-month stay.

It is the public policy of Florida to cooperate with reciprocal states in delinquency proceedings involving an insurer. Mantero-Atienza v. Salvador, 807 So.2d 163 (Fla. 3d DCA 2002). New York, having also adopted a version of the Uniform Insurers Liquidation Act, is by definition a reciprocal state. § 631.011(20), Fla. Stat. (2002). Thus, under principles of comity, the Florida court should have honored the stay entered by the New York court. See Mantero-Atienza; American Bonding Co. v. Coastal Metal Sales, Inc., 679 So.2d 1250 (Fla. 2d DCA 1996).Aecordingly, we conclude that the circuit court departed from the essential requirements of law in lifting the indefinite stay ordered by the New York court in the delinquency proceeding. The petition for writ of certiorari is granted, and the circuit court order is quashed.

PETITION GRANTED; ORDER QUASHED.

PALMER, J. and COBB, W., Senior Judge, concur.

      . A delinquency proceeding is a proceeding brought against an insurer "for the purpose of liquidating, rehabilitating, reorganizing, or conserving” the insurer. § 631.011(6), Fla. Stat. (2002).

      . Under both Florida and New York’s versions of the Uniform Insurers Liquidation Act, New York is the “domiciliary state” as Frontier was incorporated there. See § 631.011(7), Fla. Stat. (2002); N.Y. Insurance Law § 7408(4) (McKinney 2002).