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Florida Supreme Court Disciplines Attorney For Bad Courtroom Behavior:  A Shot Across The Bow?

 By Joseph A. Corsmeier

 

                The Supreme Court of Florida recently issued an opinion disciplining an attorney with a 91 day rehabilitative suspension for engaging in inappropriate courtroom behavior.  In The Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006), the Court denied the attorney's petition for review and approved a referee's recommendation of the 91 day rehabilitative suspension.

                In Morgan, the attorney represented a criminal felony defendant in a jury trial.  During the trial and with the jury present, the attorney was cross-examining a prosecution witness and asked how she was dressed at the time of the alleged incident.  After the judge sustained the prosecutor's objection to the relevancy of the question, the attorney raised his voice and told the judge he did not understand why the judge was interfering with his cross-examination.  The judge then excused the jury. 

                According to the referee, after the jury was excused the attorney continued to speak in a loud and angry manner and paced back and forth in the courtroom.  The attorney made various statements to the judge, including, among other statements:  "No judge treats me like that in front of the jury"; "I don't care how you think I treat other judges"; and "I think you are out of line, that's what I think.  You don't talk to me like that in front of a jury".  During a proffer questions related to the clothing of the witness, the attorney continued to ask questions of the witness after the judge ordered him to stop.  After the judge told the attorney that he would be arrested if he continued, the attorney said, among other statements:  "Go ahead and have me arrested.  What are you threatening me for?   I want a mistrial.  Take me to jail and let's go with it.  I want my mistrial.  You don't talk to me like this.  It's not going to happen".

                The  Florida Bar filed a complaint against the attorney alleging Bar Rule violations.  Based upon the attorney's conduct at the trial, the referee appointed to hear the matter found the attorney guilty of violating rules 4-3.5(c) (conduct intended to disrupt a tribunal), and 4-8.4(d) (conduct prejudicial to the administration of justice).  The referee found several aggravating factors, including prior discipline for similar misconduct (a public reprimand in 1998 for making intemperate and derogatory remarks regarding the judiciary and a 10 day suspension in 2001 for making statements that he knew were false or with reckless disregard for the truth about the qualifications of a judge), a pattern of misconduct, refusal to acknowledge the wrongful nature of his conduct, and substantial experience in the practice of law.  The referee also found several mitigating factors, including character and reputation, pro bono services, serving as a role model for other attorneys, and two judge's perception that he is an excellent and passionate advocate.  As discipline, the referee recommended a 91 day suspension, which requires the attorney to show rehabilitation before returning to practice.

                In the opinion, the Supreme Court adopted the referee's recommendation of a 91 day suspension and pointed out that this was the third time the attorney had appeared before the Court for the same type of conduct.  The Court cited The Florida Bar v. Wasserman, 675 So. 2d 103 (Fla. 1996) (6 month suspension for conduct evidencing disrespect for the judiciary and public discipline on three prior occasions) and The Florida v. Price, 632 So. 2d 69 (Fla. 1994) as support for the disciplinary sanctions. 

                Justice Wells, in a specially concurring opinion, stated that "the conduct by Mr. Morgan that is reflected in the transcript of the trial proceedings is so detrimental to the administration of justice that lawyers who engage in it must be subject to rehabilitative suspension…(t)he conduct of Mr. Morgan is an anathema to a properly functioning court system.  The lesson of this decision is that the Court will not allow lawyers who engage in this conduct to do it in Florida courts without facing substantial discipline."  This opinion appears to make it clear that attorneys will be held responsible for their courtroom behavior and inappropriate conduct toward judges will not be tolerated in Florida.

 

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