sunEthics
Covering legal ethics, judicial ethics, bar admissions in Florida, Tennessee, and nationally. See our Subject Index to past postings.
Florida - DISCIPLINARY PROCEEDINGS
Rejecting referee’s recommendation, Supreme Court denies reinstatement to suspended lawyer. [Added 3/20/24]
Lawyer Wilner, the sole owner of a law firm in Jacksonville, was suspended for 91-days. He sold his firm to Acosta, a lawyer in St. Petersburg, for $100 with a provision to buy it back for $200 upon reinstatement. Wilner remained employed by the firm after the sale, although he “had no specific job title at the firm, and he came into the office only a few times a week for a couple hours to discuss general strategy – not specific cases – with the firm’s lawyers.” Acosta was responsible for supervising Wilner’s work, and in this role he spoke to Wilner and the firm’s office manager by phone “every week or two.”
Wilner petitioned for reinstatement. After a hearing the referee recommended reinstatement. The Bar sought review by the Supreme Court, contending that Wilner had not demonstrated full compliance with Rule 3-6.1. Subdivision (f) of this rule requires that a suspended lawyer “must be supervised by a member of The Florida Bar in good standing and eligible to practice law in Florida who is employed full-time by the entity that employs the individual subject to this rule and is actively engaged in the supervision of the individual subject to this rule in all aspects of the individual’s employment.”
The Court agreed, rejected the referee’s recommendation, and denied reinstatement. “It is clear from our review of the record that, regardless of the amount of work he either did or did not do for [the law firm], Wilner was not actively supervised in all aspects of his employment with the firm. His supervisor, Acosta, lived across the state in St. Petersburg and was not actively involved in any of JLG’s cases or Wilner’s work at the firm. He did not oversee any of Wilner’s so-called strategy talks with the firm’s other lawyers, and the only oversight he exercised over Wilner was through unstructured telephone conversations every week or two. Acosta simply had no meaningful way to consistently ensure that Wilner fully complied with the restrictions on his employment in rule 3-6.1 other than Wilner’s own personal assurances. This is exactly the type of scenario rule 3-6.1(f) is intended to guard against, as those subject to its restrictions have in many instances already demonstrated an unwillingness to abide by the profession’s rules and ethical standards.” Florida Bar re: Wilner, __ So.3d __ (Fla., No. SC2022-1055, 3/14/2024), 2024 WL 1100746.
Supreme Court disbars, rather than suspends as recommended, lawyer for failing to follow advertising rules, communicating with represented person, and conduct prejudicial to administration of justice. [Added 1/22/24]
The Florida Supreme Court reviewed 2 referee’s reports by different referees finding lawyer Schwartz guilty of professional misconduct and recommending that Schwartz be suspended. The Court accepted the findings of guilt, but disagreed with some of the findings in aggravation and mitigation. The Court also disapproved the suspension recommendations and instead ordered Schwartz disbarred.
In the first case, Schwartz sent an unsolicited text message to the complainant’s cell phone offering to represent the complainant. The text message violated Rule 4-7.18 because it did not include “Advertisement” as the first word, did not the required information regarding Schwartz’s qualifications and experience and qualifications, did not include the sentence “If you have already obtained a lawyer, please disregard this text,” did not disclose how Schwartz obtained the information prompting the text, and was not filed with the Bar for review. (Note: The rule requiring the “If you have already retained a lawyer . . .” sentence has since been deleted. See In re Amendments to Rules Regulating the Florida Bar – Subchapter 4-7 Information About Legal Services, 366 So.3d 997, 998 (Fla. 2023).)
The referee had rejected Schwartz’s contentions that the advertising rules did not apply to text messages and that he was entitled to protection under the “safe harbor” for presumptively valid information in Rule 4-7.16. The referee recommended a 10-day suspension, to run concurrently with a suspension to be entered in another case. (In that case, Schwartz was found guilty of altering photocopies of a police lineup in violation of Bar rules. See Florida Bar v. Schwartz, 334 So.3d 298 (Fla. 2002).)
In the second case, Schwartz represented a defendant, Maloy, in a criminal case. Schwartz met with Maloy and his co-defendant, Johnson, even though Johnson was represented by the public defender at the time. Schwartz did not contact the public defender even though he knew Johnson was represented. Schwartz prepared and had Johnson execute an affidavit that was notarized by Schwartz’s associate, “which averred that Johnson wanted to testify on behalf of Maloy, acknowledged his Fifth Amendment right against self-incrimination, and sought to have his case adjudicated before that of his co-defendant to extinguish his right to remain silent.” Schwartz filed the affidavit in Maloy’s case but not in Johnson’s case.
The referee found Schwartz guilty of violating Rule 4-4.2(a) (communication with represented person without consent of counsel) and Rule 4-8.4(d) (conduct prejudicial to the administration of justice). The referee recommended a 90-day suspension.
On review, the Supreme Court approved the guilt findings but rejected re recommendations regarding discipline, instead disbarring Schwartz. After reviewing other cases in which Schwartz had been disciplined and stated: “As has become all too clear to this Court, Schwartz’s misconduct persistently involves varying degrees of dishonesty and deceit.” The Court summarized: “As we have previously stated, a lawyer’s asserted motive or the purpose in acting is not determinative of whether a rule was violated and is not a factor in determining the appropriate sanction to impose. See Schwartz I, 284 So. 3d at 396. In addition, the referee here neither cited nor applied our recent case law imposing more severe sanctions for lawyer misconduct, see, e.g., Fla. Bar v. Altman, 294 So. 3d 844, 847 (Fla. 2020) (citing Fla. Bar v. Parrish, 241 So. 3d 66, 80 (Fla. 2018), or that cumulative misconduct warrants more severe discipline, Fla. Bar v. Bosecker, 259 So. 3d 689, 699 (Fla. 2018). Therefore, we disapprove the referee’s recommended discipline in both cases. Instead, we conclude that the totality of Schwartz’s conduct in the two cases taken together, and when considering Schwartz’s disciplinary history, warrants disbarment.” Florida Bar v. Schwartz, __ So.3d __ (Fla., Nos. SC2019-0983, SC2021-0484, 1/18/2024), 2024 WL 188335.
Supreme Court imposes 91-day suspension on lawyer who impugned integrity of members of judiciary. [Added 6/12/23]
Lawyer, a foreclosure defense attorney, developed a set of legal theories that he has used in defending clients. After his arguments were rejected in 3 particular cases, Lawyer filed motions “that included negative comments and accusations about courts and specific judges.” Among other things, Lawyer contended that courts were “acting illegally,” that certain judges were “traitors to the constitution,” that the courts were not impartial, and that the court allowed “the most rich and powerful segment of our society . . . to engage in felony misconduct and walk away without any punishment.”
The Florida Bar brought a 3-count complaint against Lawyer. The referee found that Lawyer violated Rule 4-8.2, which prohibits lawyers from impugning the integrity and qualifications of judges, and recommended a 90-day suspension. On review the Supreme Court approved the guilt findings, but increased the discipline to a 91-day suspension.
Lawyer admitted that his statements impugned the judge’s integrity, but denies that the statements were false or made with reckless disregard for the truth. The Court disagreed, noting that Lawyer “did not establish that he had an objectively reasonable basis for making the offending statements.” The Court also agreed that the referee properly rejected Lawyer’s selective prosecution defense. Florida Bar v. Jacobs, __ So.3d __ (Fla., No. SC2020-1602, 6/8/2023), 2023 WL 3874681.
Supreme Court disbars lawyer for double billing without providing proper refunds, as well as trust accounting violations. [Added 5/16/23]
Lawyer represented 3 clients seeking U.S. residency through the Immigrant Investor Program. The clients were investors in a business project that offered to pay the clients’ legal fees up to $40,000 per client. Lawyer billed the clients for fees and at the same time billed the business. Both the clients and the business promptly paid the fees.
Because the clients had already paid the fees, the money paid by the business was reimbursement of the fees and should have been given back to the clients. Instead of putting the funds in his trust account pending paying the clients, Lawyer put the money in his operating account and used it for law firm expenses. Lawyer refunded the money to the clients only after he was subpoenaed to testify before the Securities and Exchange Commission (SEC). The SEC filed a bar complaint against Lawyer.
The referee recommended that Lawyer be found guilty of violating these Rules: 4-1.4 (communication); 4-1.7 (conflict of interest); 4-1.8 (conflict of interest); 4-8.4(c) (misconduct); and 5-1.1 (trust accounts). The referee recommended disbarment. Lawyer challenged the factual findings and recommended discipline. The Supreme Court approved the referee’s recommendations.
Among other things, Lawyer contended that “he was not required to obtain informed consent from the clients [to the payment of their legal fees by the business] because there was not a substantial risk that his representation would be limited by the third-party payment arrangement.” The Supreme Court disagreed. Rule 4-1.8(f) “clearly states that informed consent is always required when a third party is paying the attorney fees. . . . Whether there is a risk to the client-lawyer relationship is an additional consideration used to determine if the representation can continue; however, it is not a consideration for determining when informed consent is required.”
The Court also rejected Lawyer’s argument that he was allowed to deposit the money paid by the business in his operating the account because they were earned legal fees. The Court pointed out that “the payments from [the business] were not like any other earned legal fees. They were a duplicate payment for fees that had already been paid by the clients. The monies were clearly the clients’ property at the point [Lawyer] received them. Thus, the monies should have been deposited into [Lawyer’s] trust account pursuant to Bar Rule 5-1.1(a)(1) until they were promptly returned to the clients.” Further, Lawyer violated the trust accounting rules because he failed to promptly notify and deliver the money to the clients – instead, he converted the money to his own use.
Finally, the Court concluded that disbarment was the proper discipline. The Court rejected Lawyer’s argument that his affliction with undiagnosed Graves’ disease was a mitigating factor, because the disease was not related to the misconduct. Additionally, Lawyer’s argument that the Bar’s delay in the proceedings was not a mitigating factor was rejected because he did not identify specific prejudice resulting from the delay. Florida Bar v. Bander, __ So.3d __ (Fla., No. SC2021-0011, 5/11/2023), 2023 WL 3360867.
Supreme Court suspends lawyer for 3 years for not following client’s directives and for putting own pecuniary interests ahead of client’s goals. [Added 5/7/23]
Lawyer Rush represented 3 entities (“North Park”) that owned property that was subject to an eminent domain proceeding. Rush’s fee agreement provided that his fees would be paid by the State, but also provided that North Park would be obligated to pay him if it terminated the representation before the case was concluded.
North Park and the State Department of Transportation (“FDOT”) disagreed on the property’s value. Rush contended that the value would be increased by about $8 million if the FDOT moved a drainage pond. The $8 million would be a nonmonetary benefit that would entitle Rush to a fee award. North Park agreed with this strategy initially, but changed its position based on a prospective buyer’s ability to get financing. At that point North Park’s goal was to settle the eminent domain case as quickly as possible so the property could be sold.
Unhappy with this turn of events, Rush “began filing a series of unauthorized pleadings and motions in the eminent domain case seeking to preserve and advance his claim for attorney’s fees based on his nonmonetary benefits argument.” When North Park met with Rush to discuss its desire to expedite the conclusion of the eminent domain matter, Rush “reminded North Park that termination of his services would make North Park responsible for paying his legal fees and costs. When asked to approximate the amount, Rush estimated his legal fees and costs to be somewhere between $300,000 and $1,000,000. Though North Park no longer wanted Rush to pursue his argument for nonmonetary benefits, it was afraid to terminate Rush’s representation because of the potential liability for a million dollars in fees. North Park emphasized to Rush that the pending sale of the property was the priority and that the closing needed to occur by the end of April 2018.”
North Park had its real estate lawyer, Petitt, enter an appearance in the eminent domain case and direct Rush to not make any further filings without prior approval of the client. Rush ignored this directive and continued to file pleadings seeking fees based on the claimed non-monetary benefits. The casestalled because the court was not sure as to who was speaking for North Park, and North Park apparently did not want to formally terminate Rush due to his potential assertion of a claim for up to a million dollars in fees.
Additionally, Rush had an angry interchange with FDOT’s counsel that included his threat to file a bar complaint against her. Petitt sent a letter approved by North Park to Rush to sign and submit to FDOT without modifications. Despite this, and without informing his client, Rush altered the letter and sent the revised version to FDOT. At that point, North Park fired Rush. Undeterred, Rush sued his former client in a 21-count action and sought fee arbitration. All his claims were denied. Rush filed 2 lis pendens on the property, which were eventually set aside. Rush then sued the purchaser of North Park’s property. When North Park and FDOT reached a stipulated final judgment in the eminent domain case, Rush called it “fraudulent” and a “sham” and tried to have it undone.
The Florida Bar pursued disciplinary action against Rush. The referee recommended that Rush be found guilty of violating Rules 4-1.2 (objectives of representation), 4-1.4 (communication with client), 4-1.5 (fees, 4-1.7 (conflict of interest), 4-3.1 (meritless claims), 4-3.4 (threatening a bar complaint), and 4-8.4(d) (misconduct). The Florida Supreme Court approved the recommendations.
As to the fee violation (Rule 4-1.5), the Court noted that the alleged non-monetary benefit relating to moving the drainage pond was not earned because the pond relocation was not part of the parties’ settlement. “Seeking compensation based on benefits never obtained is patently unreasonable.”
Rush violated the conflict rule (4-1.7) because he filed unauthorized pleadings seeking to enhance the value of his fee despite the client’s expressed desire to settle the case quickly. “Rush’s focus was on obtaining greater attorney’s fees for himself, and his continued argument for nonmonetary benefits delayed the settlement of the eminent domain case and could have caused the sale of the property to fall through. Rush’s interest in obtaining greater attorney’s fees was in direct conflict with the client’s goal of settling the case quickly.”
Rush also acted unethically by threatening to file a bar complaint against FDOT’s counsel. “Bar Rule 4-3.4 states that an attorney must not ‘threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.’”
As to discipline, the Court agreed with the referee’s recommended sanction of a 3-year suspension. Florida Bar v. Rush, __ So.3d __ (Fla., No. SC2020-1685, 5/4/2023), 2023 WL 3238520.
Dismissal of suit against Florida Bar employees affirmed based on immunity from suit for actions in their official capacities. [Added 1/6/23]
Since being suspended for 6 months in 2015, Henry has repeatedly filed multiple state and federal lawsuits, as well as an administrative action, unsuccessfully challenging her suspension. Targets of her suits have included the Florida Bar and Bar employees.
One of the recent actions, filed in 2019 and “based on the same facts as the previous actions,” was concluded by an order dismissing the Florida Bar defendants. The Fifth DCA affirmed, pointing out that “by acting in their official capacities during the alleged conduct, these defendants are immune from liability, as Henry was previously informed by the district court” (citing Cole v. Owens, 766 So.2d 287 (Fla. 4th DCA 2000); Kee v. Bailey, 634 So.2d 654 (Fla. 3d DCA 1994); Mueller v. Fla. Bar, 390 So.2d 449 (Fla. 4th DCA 1980); Carroll v. Gross, 984 F.2d 392 (11th Cir. 1993).
The appeals court concluded its opinion by stating: “Henry has litigated her grievances – which flow from the six-month suspension of her law license in 2015 – for over seven years, and this Court is the eleventh tribunal to review her claims. She has brought suit after suit in the hope that persistence will yield a different outcome. Her accusations have been rejected by federal courts, including the United States Supreme Court; multiple state courts, including the Florida Supreme Court; and the Florida Commission on Human Relations. It is time for this repetitive litigation to come to an end. We caution Henry that the continued filing of lawsuits in this matter could result in the imposition of sanctions. May v. Barthet, 934 So. 2d 1184, 1187 (Fla. 2006).” Henry v. City of Mount Dora, __ So.3d __ (Fla. 5th DCA, No. 5D21-1387, 12/22/2022), 2022 WL 17835183.
Supreme Court disbars, rather than suspends, lawyer for mismanagement of his law firm, as well as violating fee and conflict of interest rules. [Added 1/2/23]
In 2 consolidated cases, the Florida Supreme Court concluded that a lawyer’s cumulative misconduct warranted disbarment rather than a suspension and a reprimand as recommended by the referee. Lawyer Strems was the sole owner of a law firm that primarily represented insureds in first-party property damage litigation against their insurers.
Case No. SC20-806. Strems’ law firm, “SLF,” grew quickly and significantly. In 2016 SLF had 3 litigation attorneys managing about 700 cases each. “SLF’s inadequate staffing and lack of sufficient office procedures resulted in client neglect, case dismissals, frustrated judges, and costly sanctions on a near weekly basis.” Two judges submitted affidavits complaining about Strems’ “blatant obstruction of justice in virtually every case where he and his firm enter an appearance.” Even though Strems hired a litigation managing attorney, “SLF continued to neglect client matters and accrue court sanctions that ranged from $5,000 to $15,000 weekly.” The firm continued to accept 20 to 50 new cases weekly.
“On top of mismanaging his firm, Strems also submitted false or misleading affidavits in two cases where he had attempted to negotiate settlements. Specifically, Strems attached to an affidavit a purported email chain between himself and opposing counsel, but he failed to include seven emails from opposing counsel that directly conflicted with statements in his affidavit.”
The referee had found Strems guilty of violating numerous ethics Rules: 4-1.4(a) (communication); 4-3.1 (non-meritorious claims); 4-3.2 (expediting litigation); 4-3.3(a) and (b) (candor toward tribunal); 4-3.4(a) (obstructing access to evidence); 4-5.1(a), (b), and () (responsibilities of partners and supervisory lawyers); 4-8.4(c) (conduct involving dishonesty, fraud, deceit, misrepresentation); and 4-8.4(d) (conduct prejudicial to administration of justice).
Strems challenged some of the guilt findings in the Supreme Court, but the Court affirmed all except the violation of Rule 4-1.4(a). Of particular note is the Court’s approach toward what it referred to Strems being “vicariously responsible” for his associates’ acts. The Court stated: “Strems failed to responsibly manage SLF and hire enough attorneys to handle the mounting case load. Additionally, he failed to ensure that SLF lawyers complied with rules regarding reasonable diligence and promptness, which led to multiple Kozel dismissals. Strems’ failure to take reasonable remedial action, given the substantially growing firm, was, in essence, ratification of his associates’ actions. His attempts to resolve the case and office management issues were ineffective, and he continued to take on new cases rather than focus on the problems consistently plaguing SLF. Further, when the sanction orders were brought to Strems’ attention, he admonished and spoke with the attorneys involved, but the sanctions did not stop. We reject Strems’ argument that he should not be held vicariously responsible for his associates’ unproven violations because under rule 4-5.1(c), as the sole partner at SLF, Strems is responsible for what would constitute misconduct by other SLF attorneys, whether it be due to Strems’ deficient firm structure or SLF’s general practices.”
In contrast with that conclusion, the Court determined that Strems had not violated Rule 4-1.4(a). “The referee found Strems guilty based on the case of Carlton McEkron, where SLF attorney Romero failed to discuss a settlement counteroffer with the client. However, we disapprove the referee’s recommendation that Strems be found guilty of Bar Rule 4-1.4(a). Assuming that Romero’s conduct constitutes a violation of the rule, under Bar Rule 4-5.1(c), a lawyer shall be responsible for another lawyer’s violation of the rules if: (1) the lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct; or (2) the lawyer is a partner and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Strems was not present at the mediation in the McEkron case, and there is no record evidence that he had knowledge of Romero’s failure to consult with McEkron about the counteroffer, or that he ordered or ratified Romero’s failure to consult.”
Case No. SC 20-842. The second case concerned the settlement of client Nowak’s case. She told SLF that she would accept a prelitigation offer of $30,000 as her bottom line, with her netting $22,500 based on SLF’s 25% prelitigation fee. No such agreement was reached, and SLF filed suit on Nowak’s behalf. The insurer then offered $30,000 to settle the case, but because the firm’s fee percentage was higher once suit was filed the firm and Nowak agreed to seek a higher recovery.
Strems took over the settlement negotiations and “agreed to settle the case with the insurer’s counsel, Matthew Feldman, for $45,000, without Nowak’s knowledge or consent. Feldman then emailed Strems to confirm that they ‘reached a global settlement agreement’ and requested that SLF provide him with the settlement check breakdown. Strems emailed Feldman with directions to pay $22,500 to Nowak and $22,500 to SLF.” In the disciplinary case Strems apparently contended that this was permitted under the fee agreement (which is quoted in the Court’s opinion), and the referee concluded that Strems had violated neither the fee rule (Rule 4-1.5) nor the conflict of interest rule (Rule 4-1.7).
On review the Supreme Court disagreed. “[U]nder under the terms of the contingency fee agreement, SLF was entitled to either a 30% contingency fee or a court-awarded amount. We reject Strems’ argument that any amount supposedly negotiated with Feldman is equivalent to court-ordered attorney’s fees. See Fla. Bar v. Kavanaugh, 915 So. 2d 89 (Fla. 2005). We also reject the notion that the relevant inquiry is whether a $22,500 fee would have been reasonable in light of the fee-shifting statute and the work performed on the case. Like the respondent in Kavanaugh, Strems attempted to collect attorney’s fees exceeding an amount that is allowed under his contingency fee agreement. We therefore disapprove the referee’s recommendation and find Strems guilty of violating Bar Rule 4-1.5.”
The Court also found Strems guilty of a conflict of interest. “[S]ince Strems reviewed the file prior to commencing negotiations with Feldman, he was clearly on notice of Nowak’s desire for a higher settlement. However, Strems sought to limit Nowak’s recovery to her prelitigation bottom line, while attempting to triple his attorney’s fees. Thus, the record demonstrates that there was a clear conflict of interest, with Strems unilaterally seeking to take a higher percentage of the global settlement, entirely at his client’s expense.”
Finally, the Court rejected the recommended 2-year suspension and determined that “[w]hen all the violations are considered together, the totality of Strems’ misconduct warrants disbarment.” The Court, however, rejected the Bar’s request for permanent disbarment, noting that he “has not demonstrated that he is not amendable to rehabilitation.” Florida Bar v. Strems, __ So.3d __ (Fla., Nos. SC20-806, SC20-842, 12/22/2022), 2022 WL 17839513.
Supreme Court suspends lawyer for 91 days, rather than recommended 60 days, for “dishonest” conduct related to non-party subpoena. [Added 11/20/22]
Lawyer represented Husband in a divorce. Husband’s father-in-law claimed he owned an interest in the marital home, so Lawyer prepared and filed with the court a Notice of Production from the non-party mortgage company (Freedom) along with a subpoena listing documents. After the 10-day objection period expired, Lawyer served a “modified version” of the subpoena on Freedom. When Lawyer filed the modified subpoena with the court, Wife’s counsel objected that it was “materially and substantially different” from the version he had noticed earlier. Lawyer did not withdraw the modified subpoena and Freedom produced records in response to it.
The circuit court issued an order finding Lawyer’s conduct improper. The Florida Bar initiated disciplinary proceedings against Lawyer. The referee recommended that Lawyer be found guilty of violating: Rules 3-4.3 (Misconduct, Minor Misconduct); 4-3.4(a) (unlawfully obstructing evidence or unlawfully altering, destroying, or concealing potential evidence); 4-3.4(c) (knowingly disobeying court rules or orders); 4-3.4(d) (making frivolous discovery request or intentionally failing to comply); 4-4.1(a) (making false statement of material fact or law to third person); 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (conduct prejudicial to administration of justice). The referee recommended a 60-day suspension. Lawyer challenged the findings of guilt, while the Bar challenged the recommended sanction.
The Supreme Court affirmed the findings of guilt, except for Rule 4-3.4(a). “[I]n knowingly serving Freedom with a different subpoena than the one attached to the notice served on the other parties, [Lawyer] knowingly flouted an obligation under the rules of a tribunal, in violation of Bar Rule 4-3.4(c).” By serving the modified subpoena without proper notice, despite opposing counsel’s objection, and without a court resolution of the issue, Lawyer violated Rule 4-3.4(d). Serving the disputed subpoena without informing Freedom of the situation “thereby misrepresent[ed] to Freedom that it was required to produce all the records listed on the subpoena,” violating Rules 4-4.1(a) and 4-8.4(c). The Court ruled that Lawyer did not violate Rule 4-3.4(a), noting that “[t]he referee made no findings that [Lawyer] obstructed others’ access to evidence; unlawfully modified, destroyed, or concealed a document or other material; or that he counseled or assisted another person to do any such act.”
As to discipline, the Court reviewed prior case law and concluded that Lawyer’s “dishonest behavior warrants a ninety-one-day suspension; it demonstrates disrespect for the court and is destructive to the legal system as a whole.” Florida Bar v. Arugu, __ So.3d __ (Fla., No. SC21-933, 11/10/2022), 2022 WL 16842649.
Supreme Court suspends lawyer for 3 years rather than recommended 90 days for using altered photo lineups in pretrial criminal deposition. [Added 2/22/22]
Lawyer Schwartz represented a criminal defendant. At a pretrial deposition, Schwartz used two defense exhibits that he created. The exhibits were “two black and white photocopies of a police lineup. In each, Schwartz altered the defendant’s picture. In one exhibit, he replaced the defendant’s face with that of an individual whom witnesses other than the robbery victim had identified as the perpetrator. In the other exhibit, Schwartz changed the defendant’s hairstyle. However, the altered photocopies used at the deposition retained the victim’s identification of the defendant, including both her circle around what had been the defendant’s picture and her signature at the bottom of the lineup, as well as a police officer’s signature.”
The Bar charged Schwartz with violating Rules 3-4.3 (misconduct) and 4-8.4(c) (dishonesty, fraud, deceit or misrepresentation). The referee recommended that Schwartz be found not guilty of violating either rule. She concluded that Schwartz had no intent to deceive, stating that Rule 4-8.4(c) requires proof of a purpose to deceive. She further concluded that the altered lineups were not misleading in and of themselves.
The Bar sought Supreme Court review. The Court disapproved the referee’s report. The Court pointed out that Schwartz’s “subjective motive was not determinative” and that “Schwartz’s intent to create what were deceptive exhibits in themselves led to the inescapable conclusion that he violated Bar Rules 3-4.3 and 4- 8.4(c) as alleged.” The Court remanded for a sanctions hearing before a new referee.
The successor referee issued a report recommending that Schwartz be suspended for 90 days. The Bar objected, and on review the Supreme Court disapproved the referee’s recommendation. Instead, the Court suspended the lawyer for 3 years in view of his substantial prior disciplinary history. “[O]n three prior occasions . . . Schwartz violated numerous Bar Rules, which in each instance included those rule violations that the Court has held are considered the most serious” (relating to dishonest conduct).
The Court emphasized that “t the requirement to provide zealous representation, as contemplated under our ethical rules, see Florida Bar v. Roberts, 689 So. 2d 1049, 1051 (Fla. 1997) (‘Failing to represent one’s client zealously, failing to communicate effectively with one’s client, and failing to provide competent representation are all serious deficiencies, even when there is no evidence of intentional misrepresentation or fraud.’), does not excuse engaging in misconduct, irrespective of one’s intent to benefit the client. . . . In the instant case, we are of the opinion, in light of Schwartz’s history of repeated transgressions and the increasing egregiousness of each infraction, that he has been an overzealous advocate incapable of seeing the forest for the trees.” Florida Bar v. Schwartz, __ So.3d __ (Fla., No. SC17-1391, 2/17/2022), 2022 WL 484167.
Rejecting lesser sanction, Supreme Court suspends lawyer for 2 years for making unfounded accusations of racial bias and failing to properly handle misdelivered fax. [Added 12/10/21]
The Florida Supreme Court imposed a 2-year suspension on a lawyer (“Patterson”) for making accusations of racial basis against judges and opposing counsel and parties without foundation as well as for failing to proper respond upon receipt of a confidential fax that was inadvertently sent to him. The referee trying the disciplinary case recommended a 90-day suspension, largely because the referee believed that Lawyer’s misconduct had been addressed in prior disciplinary case (Florida Bar v. Patterson, 257 So.3d 56 (Fla. 2018), imposing a 1-year suspension). The Supreme Court disagreed with the referee, stating that the prior disciplinary action involved Patterson’s conduct in one case (Faddis) while “this [disciplinary] case involves Patterson’s misconduct in an entirely separate case that was litigated between 2011 and 2018” (Bussey-Morice).
In a 42-page order in Bussey-Morice the judge detailed Patterson’s unprofessional conduct and referred him to the Florida. The Bar instituted disciplinary proceedings and the referee found that Patterson engaged in 3 categories of misconduct during the Bussey-Morice case: “Patterson repeatedly alleged unfounded ‘racial and other biased partiality on the part of opposing counsel and the courts’; (2) Patterson misused an inadvertently disclosed fax and interrogatories; and (3) Patterson committed procedural-rule violations throughout the case and caused unreasonable delays in the litigation.
The referee’s recommendation of a 90-day suspension was based primarily on the mishandling of the inadvertent fax, which he believed had not been addressed in the prior disciplinary case. Patterson received a fax containing draft interrogatory response that a defendant had intended to send to his own lawyer rather than to Patterson, who was representing the plaintiff. “Patterson read the responses anyway, and he kept the fax and made no effort to notify defense counsel of the error” as required by Rule 4-4.4(b). Patterson refused opposing counsel’s request to return the fax and used its contents as the basis for a pleading. Ultimately the trial judge granted opposing counsel’s motion to compel return.
As noted, the Supreme Court concluded that the referee was in error in believing that Patterson’s other misconduct had been punished in the prior case: “The fact is that the one-year suspension we imposed in Patterson’s earlier disciplinary proceeding did not in any way account for the acts of misconduct that the referee found in this case.”
The Court determined that a 2-year suspension was called for, and summarized: “Patterson’s repeated, unfounded allegations of racial bias were particularly egregious. And they were especially damaging – not just to the individuals whose character he unjustly impugned, but more broadly to the public’s confidence in our judicial system. Patterson’s behavior was diametrically opposed to the civility and professionalism that our Bar Rules and the Oath of Admission demand. We think that the referee got this case exactly backward. The referee discounted the recommended sanction based on his clearly erroneous conclusion that we had already disciplined Patterson for the misconduct found in this case. Instead, the referee should have found that Patterson’s pattern of engaging in such serious and damaging misbehavior warranted an especially severe sanction.” Florida Bar v. Patterson, __ So.3d __ (Fla., No. SC19-2070, 12/9/2021), 2021 WL 5832861.
Rejecting referee’s recommendation, Supreme Court suspends lawyer for 91 days for surreptitiously texting client during telephonic deposition and misrepresenting what he did. [Added 11/23/21]
Client’s deposition was taken by telephone in a worker’s compensation case. Lawyer represented Client and was in different location. During the deposition Lawyer sent Client numerous text messages, providing direction to Client as to how to respond to questioning. Opposing Counsel heard typing sounds and asked Lawyer and Client if they were texting each other. Lawyer denied it, misrepresenting to Opposing Counsel that he had texted with his daughter and had ceased texting. Later in the deposition, Lawyer inadvertently sent Opposing Counsel a text that was meant for Client. Opposing Counsel stopped the deposition.
Opposing Counsel subsequently filed a motion with the Judge of Compensation Claims seeking production of Lawyer’s texts. Lawyer produced texts, but none were between him and his daughter. “The judge found that the text messages were sent during the deposition, not during a break in the questioning, and that they were not protected by attorney-client privilege, contrary to James’s claims.”
The Florida Bar instituted disciplinary proceedings. The referee assigned to try the case recommended that Lawyer be found guilty of violating Rules 3-4.3 (misconduct) and 4-3.4(a) (unlawfully obstructing another party’s access to evidence) but not 4-8.4(d) (conduct in connection with the practice of law that is prejudicial to the administration of justice), and recommended a 30 day suspension.
The Bar requested Supreme Court review. The Court approved the guilt findings as to Rule 3-4.3 and 4-3.4(a), and also found Lawyer violated Rule 4-8.4(d). The Court rejected the recommended 30-day suspension and instead suspended Lawyer for 91 days.
In concluding that Lawyer violated Rule 4-8.4(d), the Court noted that it has “determined that dishonesty in connection with the practice of law is prejudicial to the administration of justice.” The referee “specifically found that [Lawyer]’s response that he was just responding to his daughter when in fact texts were being sent to [Client] was misleading and a matter contrary to honesty. He also found that [Lawyer] misrepresented to [Opposing Counsel] that he had concluded the text messaging when in fact he had not. The referee further found that [Lawyer]’s texts to [Client] while she was being questioned, telling her what to say, how to answer, to avoid providing certain information, to remember a deposition but not discuss certain checks, and to not give an absolute answer were dishonest. [Lawyer]’s dishonesty is clear from the record, and we find him guilty of violating Bar Rule 4-8.4(d).”
Regarding discipline, the Court “disagree[d] with the referee’s conclusion that [Lawyer]’s conduct was not sufficiently egregious to warrant a more severe sanction.” The Court pointed out that Lawyer “engaged in conduct aimed at defeating the opposing party’s lawful attempts to obtain evidence, undermining the adversarial process, and as a result, the trial court’s intervention was required. He then made misrepresentations to cover up his misconduct.”
Two justices dissented; they would have approved the referee’s recommendation of a 30-day suspension. Florida Bar v. James, __ So.3d __ (Fla., No. SC20-128, 11/18/2021), 2021 WL 5365639.
Supreme Court disbars a lawyer, rather than suspending him as recommended, for misconduct during his own post-divorce proceedings. [Added 10/29/21]
Lawyer fell behind in his alimony payments (allegedly he owed $88,000) and his Former Wife filed a motion for contempt. Lawyer was represented in the proceedings, but also appeared as co-counsel. While the litigation was pending, Lawyer settled a personal injury case for a client entitling Lawyer to $400,000 of the settlement proceeds. Suspecting a settlement, Former Wife’s counsel requested documents. Lawyer refused to produce them. The court granted a motion to compel. Lawyer partially complied with the order, but did not produce documents relating to the settlement. Further, Lawyer filed a document with the court stating several times that “there being no settlement, . . .”
A hearing was held on the motion for contempt, and Lawyer was served with a subpoena duces tecum requiring him to bring his file on the personal injury case. During his testimony Lawyer revealed that he had not brought the case file with him. The court ordered a short recess to allow Lawyer to retrieve the file. When the hearing resumed, the court reviewed the file in camera and found the settlement agreement. Due to this newly discovered evidence and other considerations, the court ordered a mistrial. Opposing counsel for an order to show cause why Lawyer should not be held in contempt.
“Undeterred, [Lawyer] made a series of still more consequential decisions.” A few months later Lawyer settled a trust for the benefit of himself and his grandchildren with $400,000 from the personal injury case going to the trust. The next week Lawyer offered to pay former Wife $100,000 resolve her motions against him, but she refused.
The contempt matter was tried and Lawyer was found in contempt and sentenced to 30 days in jail. The court “found that he was untruthful and intentionally misleading in his discovery responses to the former wife to delay and obfuscate the former wife’s discovery of the settlement agreement in the personal injury case.” Other findings inferred Lawyer’s intent, including that “[Lawyer] ‘researched, planned, and executed diversion of the attorneys’ fees [from the personal injury settlement] to an irrevocable trust’ that protected these earnings from the former wife.” The court referred Lawyer to the Bar.
The referee that presided over the Bar disciplinary case found that Lawyer violated the Oath of Admission and Rules 3-4.3, 4-3.4, 4-8.4(b), 4-8.4(c), and 4-8.4(d). The referee recommended a one year suspension.
On review, the Supreme Court approved the guilt findings but rejected the recommended discipline. Citing case law and the Florida Standards for Imposing Lawyer Discipline, the Court ordered Lawyer disbarred. In doing so, the Court stated: “Disbarment is the appropriate sanction for [Lawyer] under our case law and the Standards. His conduct demonstrated a willful lack of candor with the court and abuse of the legal process. We focus on the intentionality of his actions, his selfish motive, and the serious, adverse impact that his actions had on the parties and underlying case.”
The Court concluded: “In reaching the conclusion that [Lawyer] must be disbarred, we are mindful that divorce proceedings can bring out the worst in people. Yet even at one’s worst, we expect a lawyer’s oath to mean something. Indeed, we expect the oath to mean something then especially.” Florida Bar v. Koepke, __ So.3d __ (Fla., No. SC20-286, 10/28/2021), 2021 WL 4997953 (Fla. 2021).
Supreme Court rejects referee’s recommendation for reinstatement of suspended lawyer and asks Bar to study whether civil mediation should be prohibited in Bar case. [Added 10/27/21]
In 2016 Lawyer was suspended from practice for 91 days, and in 2017 he was held in contempt for non-compliance with the suspension order and was suspended for an additional year. In 2019 Lawyer applied for reinstatement. The referee appointed to the case ordered Lawyer and the Bar to mediation, over the Bar’s objections. “The mediation resulted in a joint pretrial statement wherein [Lawyer] and the Bar stipulated to the admissibility of exhibits and agreed on certain mitigation but there was no agreement on the issue of disqualifying conduct or as to reinstatement.” The referee then held a final hearing, after which she issued a report that made “limited findings of fact” but “not directly address the elements of rehabilitation in rule 3- 7.10(f)(3), other than to say that they were met” and did not “address the Bar’s allegations that [Lawyer] engaged in disqualifying other than to note that [Lawyer’s] evidence of rehabilitation outweighed any such conduct.” (Footnote omitted.) The referee recommended that Lawyer be reinstated conditioned on an 18-month probationary period with conditions.
The Bar sought Supreme Court review. The Court disapproved the recommendation of reinstatement.
The Court addressed the Bar’s contention that the referee erred in ordering civil mediation in the case. Further, the Bar asked the Court to announce that “formal civil mediation is inappropriate in Bar proceedings.” The Court decided that the referee’s referral to mediation was not appropriate under the facts of the case, but declined “at this time” to address whether formal civil mediation is appropriate in Bar proceedings. “[S]ince rule 3-7.6(f)(1) states that the Rules of Civil Procedure apply to Bar proceedings except as otherwise provided, and civil mediation is not prohibited elsewhere in the rule, the issue of whether civil mediation should be prohibited in Bar cases would be more appropriately addressed through a rule change. Therefore, we will separately refer the issue to the Bar for consideration.”
On the merits of Lawyer’s petition for reinstatement, the Court ruled that he did not demonstrate rehabilitation. “[T]he Bar presented evidence of disqualifying conduct that occurred while [Lawyer] was suspended. In violation of rule 3-7.10(f)(1)(D), misconduct in employment, while suspended, [Lawyer] failed to provide quarterly reports as required by rule 3-6.1(e) based on his drafting of legal complaints and conducting legal research for cases for his brother’s law firm. . . Further, under rule 3-7.10(f)(1)(G), financial irresponsibly, [Lawyer] filed late and incorrect tax returns during the period of suspension. . . . Additionally, while suspended, [Lawyer] left his operating account overdrawn for 524 days, which resulted in bank fees of approximately $18,000.”
The Court summarized: “This conduct occurred well into [Lawyer’s] suspension, and even after he had previously petitioned for reinstatement. As the Bar correctly argues, this behavior does not demonstrate that [Lawyer] has been rehabilitated and since the underlying misconduct that caused the original suspension was financial in nature, this factor ‘weighs especially heavy here because this same weakness caused or contributed to the conduct that led to [Petitioner’s] suspension in the first place.’” Fla. Bar re Wolf, 21 So.3d 15, 18 (Fla. 2009).” Florida Bar re: Murtha, __ So.3d __ (Fla., No. SC19-1886, 10/21/2021), 2021 WL 4898827.
Supreme Court suspends lawyer for 2 years rather than recommended 90 days for involvement in client’s Ponzi scheme as admitted in non-prosecution agreement. [Added 2/11/21]
Lawyer was senior vice president and general counsel of a corporate client (“Cay Clubs”) that sold investment opportunities relating to the management of vacation rental units. Law enforcement identified the operation as a Ponzi scheme that “made so-called ‘leaseback’ payments to initial investors using money from new investors and failed to disclose this practice on federal mortgage loan documents.” The U.S. Attorney’s Office prosecuted executives and legal representatives of Cay Clubs. Lawyer cooperated with the investigation in exchange for a non-prosecution agreement (“NPA”). The NPA detailed Lawyer’s involvement with the scheme.
Lawyer did not notify the Bar of the NPA, but the Bar learned of it and filed disciplinary charges. Lawyer was initially accused of violating Rule 4-1.16 (failing to withdraw when required) and Rule 4-4.1 (truthfulness in statements to others). During the disciplinary trial the Bar added the charge of violating Rule 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation). The initial referee who presided over the case did not make findings of fact or guilt recommendations, but instead recommended that Lawyer go to a diversion program. The Supreme Court rejected diversion and the case was then tried by a successor referee, who recommended that Lawyer be found guilty of the violations and suspended for 90 days.
The findings of fact and accompanying guilt recommendations were based on the NPA. “[Lawyer’s] own admissions in the NPA are the heart of the Bar’s case. We find [Lawyer’s] admissions in that agreement to have been clear and convincing evidence of his violations within the meaning of our cases.” Lawyer challenged the referee’s actions, but the Supreme Court approved them. The Court determined that the recommended 90 day suspension was too lenient, and instead suspended Lawyer for 2 years.
The Court noted that the NPA was not a “determination or judgment of any criminal offense” that is required to be reported to the Bar under rule 3-7.2(e), but suggested that Lawyer would have “acted more forthrightly” by reporting it.
Regarding Lawyer’s failure to withdraw from the problematic representation, the Court stated: “Bar Rule 4-1.16 requires attorneys to decline or terminate a representation if the representation results in a violation of the Bar Rules or law, if a client refuses to stop acting in a criminal or fraudulent manner, or a client has used the lawyer’s services to perpetrate a crime or fraud. The record demonstrates that [Lawyer] should have terminated his representation of Cay Clubs for all three reasons.”
Further, Lawyer “failed to disclose information in order to assist Cay Clubs in criminal and fraudulent acts, thereby violating Bar Rule 4-4.1.” He violated Rule 4-8.4(c) “both through his actions representing Cay Clubs and in the subsequent federal investigation. . . . [Lawyer] was dishonest about the nature of Cay Clubs’s business, helped Cay Clubs commit fraud, was deceitful towards lending institutions about leaseback payments, and misrepresented his unlawful actions to federal investigators.”
Finally, the Court emphasized that a 90-day suspension was “so brief as to be without basis” under existing case law and imposed a 2-year suspension. An aggravating factor as found by the referee, refusal to acknowledge wrongful conduct, was “supported by the record because, despite having signed an NPA admitting participation in criminal conduct, [Lawyer] still argued that he did not commit misconduct.” Florida Bar v. Phoenix, __ So.3d __ (Fla., No. SC17-585, 1/28/2021), 2021 WL 278996.
Supreme Court remands disciplinary case for further proceedings after clarifying that “advice of counsel” defense may be available in limited circumstances. [Added 6/26/20]
Lawyer Herman filed for a personal Chapter 7 bankruptcy after a deficiency judgment of $4.5 million was entered against him for nonpayment of a loan that he had personally guaranteed. Herman was represented by counsel in the bankruptcy. The judgment creditor, CIB, objected to Herman’s petition for discharge. CIB claimed that Herman intentionally concealed and failed to disclose prepetition assets. Those assets were a bonus that Herman received from his law firm based on his work on two large contingency cases that generated $10 million in fees for the firm. Herman had no written employment contract with the law firm. Any bonus paid to Herman was determined by the firm’s compensation committee. The firm received the fees from cases after Herman filed for bankruptcy but before he filed his financial disclosure schedules.
The bankruptcy court agreed with CIB and denied the petition for discharge. Further, the court forwarded the matter to the Bar for investigation.
The Florida Bar then opened a disciplinary case against Herman, charging him with violating Rules Regulating The Florida Bar 3-4.2, 3-4.3, 4-3.3(a)(1), 4-3.4(a), 4-8.4(a), and 4-8.4(c). Herman raised an “advice of counsel” defense, asserting that his counsel advised him that it was not necessary to an interest in the firm’s fee because the bonus was discretionary and had not vested when Herman filed his bankruptcy petition. Herman’s counsel confirmed this in his testimony.
The referee rejected the advice of counsel defense, stating that relying on advice of counsel “is not available as a defense in a Bar discipline proceeding.” The referee found Herman guilty and recommended an 18-month suspension. The Bar sought Supreme Court review arguing that the proposed discipline was too light, and Herman challenged the guilt findings and recommended discipline. The Supreme Court remanded the case to the referee for further proceedings on Herman’s advice of counsel defense.
The Court clarified its position on the advice of counsel defense. In a 2011 case the Court declined to consider the lawyer’s advice of counsel defense. The Court cited an earlier case for the proposition that “advice of counsel ‘is not a defense available to respondents in Florida Bar discipline cases, unless specifically provided for in a rule or considered as a matter in mitigation.’” Florida Bar v. Adorno, 60 So.3d 1016, 1028 (Fla. 2011) (citing to Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007).
The Court explained that the “general principle” it articulated in Adorno “is not so unyielding as to preclude consideration of” the defense in Herman’s case. The stated reason for the usual unavailability of the defense is that lawyers are charged with knowledge of the ethics rules that govern their conduct. The Court distinguished Herman’s situation: “But here, Herman does not claim that he relied on the advice of counsel as to the meaning and requirements of any Bar rule. Nor does this case have anything to do with Herman’s work as an attorney serving clients. Instead, Herman himself was the client, and the charges in this case are inextricably intertwined with Herman’s obligations under federal bankruptcy law. The Bar rules at issue did not require of Herman anything over and above what federal bankruptcy law already required – honesty and good faith in completing his bankruptcy schedules. To the extent that federal bankruptcy law permits an advice of counsel defense to negate a finding of bad intent, we conclude that such a defense should also be available to Herman in this Bar discipline proceeding.” The Court noted that the Bar must prove that Herman knew his bankruptcy disclosures were false or misleading, and that advice he received from his counsel was relevant to that issue.
Lawyer who repeatedly failed to respond to Bar inquiries and made misrepresentation to grievance committee igiven a 3-year suspension by Supreme Court, rather than recommended reprimand. [Added 5/14/20]
After Lawyer failed to respond to 2 official Florida Bar inquiries concerning a bar grievance filed against her, the Florida Bar petitioned the Florida Supreme Court for an order to show cause. Lawyer filed a response to that petition. That matter was referred to a referee who made findings of fact and recommendations concerning discipline.
In the underlying matter, Lawyer had repeatedly failed to respond to respond, or to timely respond, to inquiries from the Bar grievance committee. The Bar ultimately filed a Request for Issuance of Notice of Non-Compliance and Finding of Contempt. Lawyer responded, and her response included a factual statement about her siblings as related to care for her elderly mother. This statement was false. At the final hearing Lawyer’s testimony contradicted the statement in her response.
The referee recommended that Lawyer be found guilty of violating Rule 4-8.4(g)(2) (failing to respond in writing to official Bar inquiries). The referee recommended that Lawyer be reprimanded and placed on probation for 5 years. The Bar sought Supreme Court review of the recommended discipline, referencing the prior disciplinary of Lawyer (public reprimand for lack of diligence; 30-day suspension for lack of diligence, failure to communicate with client and failure to respond to Bar inquiries; 30-day suspension for failing to respond to Bar inquiry; contempt and suspension for failure to comply with grievance committee supoenas).
The Supreme Court agreed with the Bar and rejected the recommended discipline, instead suspending Lawyer for 3 years. The Court stated: “In light of [Lawyer]’s extensive disciplinary history and the applicable standards, we agree with the Bar that a public reprimand followed by probation is too lenient. This Court takes very seriously every attorney’s obligation to completely and timely respond to Bar inquiries. Further, in imposing discipline, this Court typically takes an incremental approach, imposing increasingly heavier sanctions on respondents who have previously been disciplined for engaging in similar misconduct.” Additionally, “[t]he referee also found that Altman made a misrepresentation in her response to the grievance committee. . . . The referee found that [Lawyer]’s misrepresentation was ‘an attempt to minimize her culpability in failing to timely respond.’” The Court suspended Lawyer for 3 years. Florida Bar v. Altman, __ So.3d __ (Fla., No. SC18-724, 5/7/2020), 2020 WL 2204857.
Supreme Court rejects referee’s not guilty recommendation and concludes that lawyer violated rules against misrepresentation by using altered photo lineups in pretrial criminal deposition. [Added 11/8/19]
Lawyer Schwartz represented a client in a criminal case. At a pretrial deposition, Schwartz showed the victim “two photocopied versions of black and white police photo lineups in which the victim had originally signed her name and identified the defendant by circling both the defendant’s photograph and the designation below it of subject number five. The exhibits also included the signature of the police officer who conducted the photo lineup.” Schwartz altered the photo lineup “by replacing his client’s image in one exhibit with the image of an alternate suspect whom witnesses other than the victim had identified as the perpetrator and by changing the client’s image in the other exhibit by imposing the alternate subject’s hairstyle on the client’s image.” The altered lineups each retained the circle and the signatures of the victim and the officer.
The prosecutor filed a Bar complaint and Schwartz was charged with violating Rules Regulating The Florida Bar 3-4.3 (misconduct and minor misconduct) and 4-8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). The referee recommended that Schwartz be found not guilty of violating either rule. She concluded that Schwartz had no intent to deceive, noting that Rule 4-8.4(c) requires proof of a purpose to deceive. She further concluded that the altered lineups were not misleading in and of themselves. The Bar sought Supreme Court review.
The Court rejected the referee’s not guilty recommendations. Regarding Rule 4-8.4(c), the lawyer’s motive is not determinative; rather, under relevant case law the issue is whether the lawyer “purposefully acted.” Here, the referee’s finding that Schwartz did not subjectively intend to mislead the witness “does not address the undisputed fact that Schwartz knowingly and deliberately created the defense exhibits by altering photocopies of the police lineups and showing them to the victim at the deposition.” Further, the referee’s finding that the altered photos were not misleading was “unsupported by the record and patently erroneous.” Accordingly, the Court decided that Schwartz violated Rule 4-8.4(c).
Additionally, the Court ruled that Schwartz violated Rule 3-4.3. Prior cases have found this rule was violated when the lawyer engaged in misrepresentation, and here the altered photos establish that Schwartz’s use of them was contrary to, or inconsistent with, honesty and justice.
The Court remanded for a hearing on recommended discipline in front of a different referee. Florida Bar v. Schwartz, __ So.3d __ (Fla., No. SC17-1391, 11/7/2019), 2019 WL _______.
Supreme Court rejects suspension recommendation and instead disbars lawyer who took improper loans from elderly clients, commingled trust funds, and misused trust funds. [Added 9/9/19]
Following an emergency suspension relating to trust fund irregularities, the Bar charged Lawyer with several counts of mishandling funds, taking improper loans from elderly clients, and drafting documents that gave him an interest in a client’s trust. The referee found Lawyer guilty of violating Rules 4-1.8(a) (business transactions with clients); 4-1.8(b) (misuse of confidential information); 4-1.8(c) (improper gifts to lawyer); 4-1.15 (safekeeping property); 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation); 5-1.1(a)(1) (holding funds in trust); 5-1.1(b) (proper use of trust funds); 5-1.2(b) (trust account records); and 5-1.2(d) (trust accounting procedures). The referee found aggravating and mitigating factors, including remorse, and recommended a 24-month suspension.
The Bar sought Supreme Court review of the recommendation sanction and the remorse finding, while Lawyer sought review of certain fact findings. The Supreme Court rejected the finding of remorse as a mitigating factor and disbarred Lawyer.
As to the remorse finding the Court stated: “The record evidence demonstrates that [Lawyer] testified at length about the harm to his reputation in the community and the effect these proceedings have had on his family. He accused the Bar of prosecuting him ‘as a trophy being hunted for the kill so [his] head could be mounted on their wall’ and compared the proceedings to ‘facing a firing squad for a traffic violation.’ Further, [Lawyer] has continuously attempted to minimize his misconduct, asserting repeatedly that no client was harmed and no money was missing. We find no evidence in the record to indicate that [Lawyer] has expressed remorse for his misconduct or otherwise accepted responsibility for his actions.” (Footnote omitted.)
Further, the Court determined that disbarment rather than a 2-year suspension was the appropriate discipline. The Court rejected Lawyers argument that the Court should evaluate and sanction each finding of misconduct individually, stating: “[T]hese arguments are misguided. It is well established that the Court views cumulative misconduct more seriously than an isolated instance of misconduct. . . . Thus, where there are several acts of misconduct being considered together, the sanction imposed is usually greater in the aggregate than the sum of the sanctions that might be imposed for any one of them individually. [Lawyer’s] argument in favor of a lesser sanction also fails to consider that this ‘‘Court has moved toward imposing stronger sanctions for unethical and unprofessional conduct’ to protect the legal profession from dishonor and disgrace.’” Florida Bar v. Horton, ___ So.3d __ (Fla., No. SC17-782, 8/29/2019), 2019 WL 4064990.
Divided Supreme Court increases recommended suspension from 10 days to 3 years for new lawyer who stole money from her department store employer. [Added 1/22/19]
Lawyer was admitted to the Bar in February 2016. She worked at Kohl’s department store and was having financial difficulties. On 3 separate occasions in April and May 2016, Lawyer stole money from Kohl’s ($140, $100, and $520). Lawyer was arrested and charged with grand theft. She pleaded guilty to a first-degree misdemeanor. Adjudication was withheld and she was placed on probation, with other requirements including community service and restitution.
The Bar filed ethics charges against Lawyer. She admitted to the facts and violations. A sanction hearing was held, and the referee found that Lawyer fully cooperated, that she voluntarily entered into a treatment contract with Florida Lawyers Assistance (“FLA”) (although her misconduct “was not related to alcohol or drug abuse or a gambling addition”), and that none of the stolen funds were related to the practice of law. The referee recommended that Lawyer be found guilty of violating Rules 3-4.3 (misconduct); 3-4.4 (criminal misconduct); 4-8.4(b) (criminal conduct reflecting adversely on honesty, trustworthiness, or fitness); and 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation). The referee recommended a 10-day suspension and a 1-year probation.
The Supreme Court issued an order to show cause why Lawyer should not be given a more severe sanction. The Bar contended that a 91-day suspension would be appropriate. A 4-justice majority of the Court, however, concluded “based on the extensive mitigation presented in this case, [Lawyer]’s remorse, and the referee’s finding that [Lawyer] voluntarily sought out, consented to, and is making progress in treatment with FLA, that a three-year suspension, rather than disbarment, is the appropriate sanction.”
The majority applied Standard 5.12 of the Fla. Standards for Imposing Lawyer Sanctions (suspension is appropriate when a lawyer knowingly engages in conduct not included in the standard for disbarment and that seriously adversely reflects on the lawyer’s fitness to practice law). The Court observed that “[t]he critical distinction between Standard 5.12, which calls for suspension, and Standard 5.1, which provides for disbarment, is whether the conduct ‘seriously adversely reflects on the lawyer’s fitness to practice law.’ . . . In this case, both the State Attorney and the referee found that [Lawyer]’s conduct warranted mercy.”
The Court further explained: “Although this Court has begun to impose harsher sanctions for attorney misconduct, even this Court’s most recent cases do not justify disbarring [Lawyer]. . . . While her misconduct was inexcusable, [Lawyer]’s theft did not involve client funds and was unrelated to the practice of law.” Lawyer had substantial mitigation, including cooperating with authorities.
Two justices authored dissenting opinions urging disbarment. In his dissent, Chief Justice Canady stated: “There is no reason to believe that a lawyer who has betrayed her employer by stealing from the employer will not betray her clients by stealing from them. There should be no place for thieves in The Florida Bar.”
Justice Lewis also supported disbarment, calling the 3-year suspension “a black eye on this Court’s attorney misconduct jurisprudence.” He believed that “[t]he fact that none of the stolen funds were related to the practice of law is irrelevant; [Lawyer] stole from those who entrusted her to handle money.”
Justice Pariente also dissented, asserting that the appropriate sanction would be a shorter suspension in the range of 91 days to 1 year. Florida Bar v. Kinsella, __ So.3d __ (Fla., No. SC17-55, 12/20/2018), 2018 WL 6711476.
Stating that referee’s report was “inadequate” and “incomplete,” Supreme Court finds additional rules violations and disbars lawyer rather than imposing no further discipline, as referee recommended. [Added 12/24/18]
In response to the Bar’s petition for emergency suspension, Lawyer was suspended for trust accounting irregularities. He was reinstated after a hearing before a referee, who found “that there was no basis to conclude that [Lawyer] had made or authorized the improper [trust fund] transfers, and that no clients had been injured by the improper transfers.”
The Bar then filed a complaint alleging various rules violations. The case was tried before the same referee. The referee made findings favorable to Lawyer and recommended that he be found guilty of violating Rules 4-1.15 (safekeeping property) and 5-1.1(b) (applying trust property to specific purpose), but found not guilty of violating Rules 3-4.3 (misconduct); 4-8.1(a) (false statements in disciplinary matters); 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 5-1.1(a) (money or property entrusted to lawyer). The referee recommended no further disciplinary sanctions. Additionally, she recommended that Lawyer pay the Bar’s administrative costs of $1250 but that the Bar pay Lawyer’s defense costs in the amount of $143,913.
The Bar challenged the not guilty findings as to Rules 4-8.4(c) and 5-1.1(a), as well as the recommended discipline.
In an opinion highly critical of the referee, the Court found the 2 additional rule violations sought by the Bar relating to Lawyer engaging “in dishonest and deceitful conduct by using one client’s funds to pay obligations owed to another client,” disapproved 2 findings in mitigation, and disbarred Lawyer. Calling the referee’s report “inadequate” and her factual findings “incomplete,” the Court also took the unusual step of directing “that no further proceedings in this case shall be held before” the referee.
The Court found that the referee had abused her discretion in excluding evidence of Lawyer’s person a tax status “because such evidence was relevant to the allegations in the Bar’s complaint,” which “clearly alleged that [Lawyer] misappropriated trust account funds, falsely certified trust account compliance to the Bar, and violated Bar Rule 4-8.4(c).” The Court determined that the referee had viewed Rule 4-8.4(c) too narrowly: “The record evidence demonstrates that Alters engaged in dishonest and deceitful conduct in violation of Bar Rule 4-8.4(c) by using one client’s funds to pay obligations owed to another client and failing to implement reasonable remedial measures once he was on notice of the trust account shortages. The referee’s recommendation to the contrary because she found that Alters did not create, or direct anyone to create, false documents in connection with this proceeding is erroneous because Bar Rule 4-8.4(c)’s application is not limited to creating false documents.”
The Court also found a violation of Rule 5-1.1(a) because Lawyer had deposited personal funds and funds and loans from a co-counsel arrangement into the trust account, thus commingling funds.
The Court then decided that disbarment was the appropriate sanction. The Court summarized: “After [Lawyer] discovered that client funds were misappropriated under his former partner’s direction, he continued to leave that person in charge of the trust account without putting in place any safeguards to prevent further misappropriation. Further, client funds continued to be misappropriated under [Lawyer’s] direction even after the former partner left the firm. Because this case is not one in which an employee stole funds from an unwitting attorney, it involves more severe conduct than that at issue in [Florida Bar v.] Johnson [132 So.3d 32 (Fla. 2013)]. Unlike Johnson, there is no finding by the referee in this case that [Lawyer’s] firm’s trust funds were stolen without [Lawyer’s] knowledge. To the contrary, improper transfers continued to occur even after [Lawyer] became aware of them. He could have stopped further improper transfers from occurring by taking active control of the trust account himself and putting in place procedures that would prevent further improper transfers; the record is clear that [Lawyer] chose to do neither, and that improper transfers continued to occur under his supervision. Like the attorneys in [Florida Bar v.] Rousso [117 So.3d 756 (Fla. 2013)], [Lawyer] entirely abandoned his duty to protect client funds held in trust. This Court will not allow attorneys to abdicate their responsibility to protect clients’ property and enjoy the privilege of practicing law.” Florida Bar v. Alters, __ So.3d __ (Fla., No. SC14-100, 11/21/2018), 2018 WL 6074625.
Supreme Court finds additional rules violations and increases discipline for lawyer who appealed sanction order in manner that conflicted with client’s interests and publicly disparaged opposing counsel and judge. [Added 10/25/18]
Lawyer represented Client in a civil case against City and other defendants. The trial court struck the pleadings on the ground that Client committed perjury. The court also awarded fees to City and imposed sanctions on Lawyer and Client for acting in bad faith. Lawyer subsequently sent a letter to the presiding judge complaining about the case and implying that a Third DCA judge was biased. This letter was sent to other judges in the Eleventh Judicial Circuit and the Third District.
After affirming a final judgment awarding more than $160,000 in fees against Lawyer and Client equally, the Third DCA issued an order to show cause why Lawyer should not have fees imposed against Lawyer and Client for pursuing a frivolous appeal. Lawyer’s response contained “incendiary and disparaging comments.” The Third DCA found that the claims raised by Lawyer on appeal were frivolous and ordered him to pay appellate fees.
The Bar charged Lawyer with various rules violations, but the referee who tried the discipline case found Lawyer guilty of violating only Rule 3-4.3 (Misconduct and Minor Misconduct). The referee recommend that Lawyer be found not guilty of violating Rules 4-1.7 (conflict of interest), 4-8.2(a) (false or reckless statements made concerning integrity of judge), and 4-8.4(d) (conduct prejudicial to administration of justice). The referee recommended that Lawyer be admonished and placed on probation. The Bar sought Supreme Court review.
The Supreme Court found additional rules violations and suspended Lawyer for one year.
Both Lawyer and Client had a financial interest in the $160,000 fee order against them, which created a conflict of interest for Lawyer. “That interest created a clear and substantial risk of materially limiting [Lawyer]’s independent judgment and loyalty to [Client], who had an interest in reducing or eliminating her liability under the December 18, 2013, order, even if it was not to the benefit of [Lawyer]. Given the existence of such risk, [Lawyer] was required under Bar Rule 4-1.7(b)(4) to obtain [Client]’s informed consent, confirmed in writing, to his continued representation of her.” Although the record contained no indication that he obtained such consent, Lawyer continued to represent Client. Lawyer’s own “personal and financial interests” were the focus of the appeal, however, “despite the loyalty he owed” to Client. The Court concluded that Lawyer violated Rule 4-1.7.
The Court also found Lawyer in violation of Rule 4-8.2(a). The referee made no findings regarding whether Lawyer had an objectively reasonable basis for his statements concerning the judge’s integrity or for his other statements. Lawyer’s testimony did not establish such a basis. Accordingly, the Court concluded that Lawyer’s statements “were made with a reckless disregard to their truth or falsity in violation of Bar Rule 4-8.2(a).”
Lawyer’s conduct also violated Rule 4-8.4(d), as prejudicial to the administration of justice. He “engaged in such conduct by pursuing his own interests in [Client]’s appeal, hindering her ability to obtain a more favorable outcome, and nearly resulting in the imposition of additional sanctions against her. He also engaged in such conduct by making inappropriate and disparaging statements in court filings and in a letter distributed to other members of the judiciary about opposing counsel and judges that presided in [Client]’s case, contributing to the general lack of civility and professionalism this Court is striving to curb in the legal profession.” The Court noted that it was “greatly troubled by the general lack of respect and professionalism [Lawyer] displayed toward judges and other professionals in court filings and in his letter to Judge Martinez. Such conduct, while an inconvenience or a mere slight to those initially confronted by it, ultimately emboldens others to engage in similar unprofessional or disrespectful acts, the net effect of which is the gradual erosion of public confidence in the courts and the decisions rendered by them.”
After reviewing the Florida Standards for Imposing Lawyer Sanctions and case law, the Court suspended Lawyer for one year. Florida Bar v. Patterson, __ So.3d __ (Fla., Case No. SC16-1438, 10/19/2018), 2018 WL 5095158.
Supreme Court disbars lawyer who failed to notify clients of her suspension as ordered and continued to practice law while suspended. [Added 10/3/18]
In a prior case, Lawyer was found guilty of violating rules regarding frivolous claims and conduct prejudicial to the administration of justice and was suspended for 45 days. Florida Bar v. Bosecker, No. SC15-1592, 2016 WL 2595926 (Fla. May 5, 2016). A few months later the Bar petitioned the Court for “Contempt and an Order to Show Cause,” alleging that Lawyer “failed to comply with Bar Rule 3-5.1(h), the notification requirement, and had also continued to engage in the practice of law during her suspension by having direct contact with her clients, engaging in discussions with opposing counsel, and contacting court personnel pertaining to [5] cases in which she was counsel of record.”
A hearing was held before a referee, who subsequently recommended that Lawyer be found guilty of violating multiple rules (3-5.1(e), 3-5.1(h), 3-6.1(c), 4-8.4(c)) and disbarred. Lawyer sought review in the Florida Supreme Court.
The Supreme Court approved all of the guilty recommendations except one (Lawyer violated rule 3-6.1(d)(1) rather than 3-6.1(c)). The Court disbarred Lawyer, noting that case law supported such a sanction. See Florida Bar v. Norkin, 183 So.3d 1018 (Fla. 2015); Florida Bar v. Lobasz, 64 So.3d 1167 (Fla. 2011); Florida Bar v. D’Ambrosio, 25 So.3d 1209 (Fla. 2009); Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005); Florida Bar v. Rood, 678 So.2d (Fla. 1996); Florida Bar v. Greene, 589 So.2d 281 (Fla. 1991).
Lawyer also raised an equal protection argument, which the Court rejected. “[Lawyer] argues that ‘[t]he rules treat suspended attorneys that are working as a legal assistant differently than individuals who are not lawyers and working as legal assistants,’ and that as a result, her equal protection rights were violated. The Bar disagrees, pointing out that [Lawyer] is not a nonlawyer, and as such, is subject to the Bar Rules. One such prohibition is that a suspended attorney shall not engage in direct client contact with clients. [Lawyer] violated that prohibition. Contrary to [Lawyer]’s belief, there is no constitutional right to practice law; rather, it is a privilege to which the Court has exclusive jurisdiction under the Florida Constitution to oversee. Based upon this Court’s exclusive jurisdiction, we have ‘the inherent power and duty to prescribe standards of conduct for lawyers, to determine what constitutes grounds for discipline of lawyers, to discipline for cause attorneys admitted to practice law in Florida, and to revoke the license of every lawyer whose unfitness to practice law has been duly established.’ R. Regulating the Fla. Bar 3-1.2. Having violated the Bar Rules 3-5.1(e), 3-5.1(h), and 4-8.4(c) – i.e, having failed to provide notice to her clients and the courts where she had cases pending that she was under suspension, being in direct contact with clients and judicial staff on behalf of her clients pertaining to those cases, holding herself out to be authorized to practice law, and then continuing to act on behalf of her clients without acknowledging that she was no longer so authorized to act – [Lawyer] can hardly claim that she acted only as any paralegal or legal assistant would do.” Florida Bar v. Bosecker, __ So.3d __ (Fla., No. SC16-1387, 9/27/2018), 2018 WL 4657111.
Supreme Court suspends lawyer for 18 months, rather than recommended one year, for misconduct in course of his own dissolution of marriage case. [7/25/18]
Lawyer was a party to a contentious dissolution of marriage proceeding. The court ordered Lawyer and Ex-wife to either refinance the marital home into Lawyer’s name within 30 days or sell it. Lawyer failed to comply, and was unable to obtain financing. When Lawyer pursued another mortgage modification, a friend of his claimed to have authority from Ex-wife to sign the application for her. The friend did sign, and notarized the signature himself. Lawyer “knew that [the friend] signed the document and notarized his own signature.” The lender approved the loan. Ex-wife later claimed that friend had forged the signature. When Lawyer failed to make the mortgage payments, a foreclosure action was instituted against Lawyer and Ex-wife. In the divorce case, Lawyer was sanctioned for failure to comply with court orders. After Lawyer failed to appear at a show cause hearing, the court issued a writ of bodily attachment. Lawyer “took actons to evade arrest on the writ of attachment, such as exchanging vehicles with his current wife so that he would not be found driving the vehicle described in the writ and avoiding his children’s activities for fear of being arrested.”
The Bar charged Lawyer with ethical violations, and the referee recommended that Lawyer be found guilty of violating Rules 3-4.3 (misconduct); 4-3.4(a) (unlawfully obstructing access to evidence or unlawfully altering, destroying, or concealing documents or materials lawyer knows or reasonably should know are relevant to pending or reasonably foreseeable proceeding); 4-3.4(b) (fabricating evidence); 4-3.4(c) (knowingly disobeying obligation under rules of tribunal); 4-3.4(d) (engaging in pretrial procedure, making frivolous discovery request, or intentionally failing to comply with legally proper discovery request); 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (conduct in connection with practice of law that is prejudicial to administration of justice). The referee recommended a one-year suspension.
The Supreme Court approved the guilty findings but rejected the recommended sanction as too lenient. Instead, the Court suspended Lawyer for 18 months. “The lawyers in [Florida Bar v.] Bischoff [212 So.3d 312 (Fla. 2017)], [Florida Bar v.] Rosenberg [169 So.3d 1155 (Fla. 2015)], and [Florida Bar v.] Whitney [132 So.3d 1095 (Fla. 2013)] were each suspended from the practice of law for one year. Although [Lawyer]’s conduct is similar to that in each of those cases, it is more severe and accordingly deserving of a more severe sanction. . . . It is clear that, at least in the context of [Lawyer]’s divorce case, he engaged in a pattern of deliberately disobeying and disregarding orders of the family court. ‘This Court has long held that ‘cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct.’’ [Citations omitted.] Moreover, unlike in Bischoff, Rosenberg, or Whitney, [Lawyer] submitted a mortgage modification application with a forged signature, despite having personally witnessed the forgery.”
Finally, the Court rejected the argument that Lawyer’s involvement in the divorce case as a party was relevant to the disciplinary case. “Although [Lawyer] committed this misconduct as a party to his own divorce, lawyers ‘do not cast aside the oath they take as an attorney or their professional responsibilities’ just because they are litigants in personal matters.” (Citations omitted.) Florida Bar v. Marcellus, __ So.3d __ (Fla., No. SC16-1773, 7/19,2018), 2018 WL _______.
Continuing move toward “imposing harsher sanctions” and strict enforcement of rule against lawyer-client sexual misconduct, Supreme Court disbars lawyer instead of suspending him for 18 months as recommended by referee. [Added 5/29/18]
Lawyer represented 2 clients who were incarcerated. During a visit to the detention facility, Lawyer and the clients “engaged in sexual activities initiated by [Lawyer]. [Lawyer] solicited the sexual conduct with one client by depositing money into her personal bank account and with the other client by promising free or discounted legal services designed to achieve a reduced jail sentence.” Lawyer was charged criminally. He pleaded no contest to misdemeanor battery.
The Florida Bar brought ethical charges against Lawyer. The referee recommended that Lawyer be found guilty of violating Rules 3-4.4 (misconduct), 4-8.4(a) (violating or attempting to violate Rules of Professional Conduct), 4-8.4(b) (lawyer’s honesty, trustworthiness, or fitness as lawyer), and 4-8.4(i) (lawyer shall not engage in sexual conduct with client that exploits or adversely affects interests of client or lawyer-client relationship). The referee recommended an 18-month suspension.
The Supreme Court approved the recommendations of guilt but rejected the 18-month suspension as too lenient. Instead, the Court disbarred Lawyer. The Court noted that it “has moved toward imposing harsher sanctions . . . and has stated that it ‘will strictly enforce the rule against lawyers engaging in sexual conduct with a client that exploits the lawyer-client relationship.’” (Citations omitted.) The Court concluded: “[E]videnced by this Court’s case law, under no circumstances should an attorney representing a client expose that client to unwanted sexual relations of any kind. [Lawyer’s]s conduct, which exploited his clients’ circumstances for his own personal benefit, ‘breeds contempt and distrust of lawyers,’ ‘demonstrates severe moral turpitude,’ and such actions ‘are wholly inconsistent with approved professional standards.’ [Florida Bar v.] McHenry, 605 So. 2d [459 (Fla. 1992)] at 461. Based upon the foregoing, [Lawyer] is disbarred from the practice of law.” Florida Bar v. Blackburn, __ So.3d __ (Fla., No. SC17-1514, 5/24/2018), 2018 WL 2355338.
Supreme Court disbars, rather than suspends, lawyer whose lack of supervision of employee with criminal history “gives new meaning to the phrase ‘turning a blind eye.'" [Added 3/28/18]
Lawyer Gilbert hired Sacks to work in Gilbert’s law office. Sacks was living in a halfway house after being released from federal prison following wire fraud convictions. Sacks claimed to be CPA and a disbarred New York lawyer, but he was neither. Gilbert did not investigate regarding Sacks’ criminal history or his claims regarding credentials.
Eventually Gilbert put Sacks in charge of administering the law firm’s operating and trust accounts. After Sacks stole a check and forged Gilbert’s name on an operating account check, Gilbert fired him. Gilbert later rehired Sacks and gave him even more responsibility. Gilbert lied to Sacks’ probation officer about the circumstances. Ultimately Sacks embezzled almost $5 million from the firm’s trust account.
The Bar charged Gilbert with multiple rules violations, including failure to supervise his nonlawyer employee, trust accounting violations, and dishonesty. The referee recommended that Gilbert be found guilty and suspended for 2 years.
The Court approved the guilty findings but increased the discipline to disbarment. The Court commented: “Whether Gilbert was aware of or personally involved in the theft is not the critical inquiry. Indeed, this case gives new meaning to the phrase “turning a blind eye.” Gilbert, as an attorney and fiduciary, was directly responsible for his firm’s trust account and for the supervision of employees. As an attorney, he owed a duty to the public and to his clients to safeguard their money. Instead, he flouted the system by lying to a federal probation officer and allowing a nonattorney to hold himself out as a law school graduate and a certified public accountant (CPA).” Florida Bar v. Gilbert, __ So.3d __ (Fla., No. SC15-2004, 3/22/2018), 2018 WL 1417440.
Supreme Court disbars, rather than suspends, lawyer after repeated professionalism-related violations. [Added 2/26/18]
Lawyer, who had twice been disciplined for professionalism-related rules violations, was charged by the Bar with new violations. In one count, Lawyer was accused of saying “lie, lie, lie” while opposing counsel was questioning Lawyer’s law partner. Lawyer denied saying the words, but the judge testified that she heard it. The referee in the disciplinary case found the judge’s testimony credible, and recommended that Lawyer be found guilty of violating Rule 4-3.5(c) (conduct intended to disrupt tribunal) and Rule 4-8.4(a) (violating or attempting to violate Rules of Professional Conduct).
On another count, Lawyer was accused of repeatedly kicking the leg of the counsel table. Opposing counsel testified that the kicking was done “in a manner that was disruptive of the proceedings.” The judge’s testimony supported this characterization. Further, the judge testified that Lawyer’s behavior at trial was “awful, that he was not respectful to the court or obeyed orders, and that [the judge] was ‘appalled’.” For this count, the referee recommended that Lawyer be found guilty of violating Rule 4-3.5(c) (conduct intended to disrupt tribunal) and Rule 4-8.4(d) (conduct prejudicial to the administration of justice).
The referee recommended a 3-year suspension, to be served consecutively to the current 3-year suspension that he is serving. The Supreme Court approved the findings regarding the violations, but increased the discipline to disbarment.
The Court pointed out “the referee’s recommendation of a consecutive three-year suspension is contrary to Standard 2.3, which provides in pertinent part: ‘Suspension is the removal of a lawyer from the practice of law for a specified minimum period of time. . . . No suspension shall be ordered for a specific period of time in excess of three (3) years.’ Fla. Stds. Imposing Law. Sancs. 2.3 (emphasis [by Court]). In this case, while the referee specified that the recommended suspension was for three years, he also included that it be served consecutive to [Lawyer]’s current three-year suspension, which was effective October 2, 2015. [Citation omitted.] Thus, the effect of the referee’s recommended sanction is that [Lawyer] would serve a six-year suspension, contrary to Standard 2.3.”
Further, Lawyer had prior disciplinary sanctions for similar actions, and the Court noted that “where lawyers have previously been disciplined for engaging in misconduct of a similar nature, the Court has generally taken an incremental approach in imposing discipline, increasing the severity of discipline in each instance.”
The Court concluded: “[Lawyer]’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession. . . . Thus, based upon the foregoing discussion, the Court is left with but one course of action, and that is to disbar [Lawyer].” Florida Bar v. Ratiner, __ So.3d __ (Fla., No. SC13-539, 2/22/2018), 2018 WL 1007927.
Supreme Court disbars instead of suspending lawyer who caused “extremely serious” harm to clients in cannabis-related representations. [Added 2/16/18]
Three months after being admitted to the Florida Bar, Lawyer opened a law practice dealing with medical marijuana. Shortly after that, Lawyer founded Health Law Services (“HLS”) and Cannabinoid Therapy Institute (“CTI”). Lawyer charged clients $799 for a doctor’s visit through CTI, and if the doctor found a medical necessity for marijuana HLS provided the client with what purported to be an “Official Legal Certification” and marijuana prescription. Lawyer, however, failed to tell clients that the affirmative defense of medical necessity for marijuana “would not apply, if at all, until after the clients were arrested, charged, and prosecuted.”
That is exactly what happened to several of Lawyer’s clients. When Lawyer attempted to represent two of them in their criminal cases, he was disqualified for conflict of interest. He also failed to refund their attorney’s fees, and when he failed to appear at a show cause hearing a warrant was issued for his arrest.
Three other clients were given erroneous advice after law enforcement had visited their residence, and the next day they were arrested on marijuana charges after a SWAT team raid. These clients accepted plea deals of 3 years’ probation, a $15,000 fine, and 100 hours of community service. One of the clients lost her nursing license, another client lost his engineering job, and the landlord sued them all for damages to the home from the raid and got a $25,000 judgment.
The Bar charged Lawyer with ethical violations, and the referee recommended that Lawyer be found guilty of violating Rules 4-1.1, 4-1.2(d), 4-1.5(a), 4-1.7(a)(2), 4-5.3(a), 4-5.3(b), 4-5.3(c), 4-8.4(a), and 4-8.4(c). As for punishment, the referee recommended a two-year suspension. The Supreme Court disagreed and ordered Lawyer disbarred, noting that “[t]he most prominent features of Respondent’s misconduct are incompetence and extremely serious harm to clients.” Florida Bar v. Christensen, __ So.3d __ (Fla., No. SC16-1081, 1/18/2018), 2018 WL 459360.
Supreme Court suspends lawyer for one year instead of recommended 60 days for violating rule against soliciting clients. [Added 11/6/17]
Lawyer was charged by the Bar with two counts of soliciting clients. The first count accused Lawyer of involvement in a “patient-recruiting scheme.” In the second count, Lawyer was charged with going to a hospital and approaching the mother of a person who “suffered traumatic brain injury” in a motor vehicle accident and successfully soliciting her to become his client for a fee. Lawyer asserted that his office had called him and told him to visit the client, but the referee found this explanation to be insufficient.
Lawyer was found guilty of violating Rule 4-7.18 (solicitation). The referee recommended a 60-day suspension as the sanction. The Court viewed 60 days as “too lenient” and instead imposed a one-year suspension. Lawyer had previously been reprimanded for solicitation and the Court determined that “a more severe sanction is warranted because [Lawyer] committed the same conduct for which he was previously disciplined.” The Court also pointed out that it “‘has moved toward imposing stronger sanctions for unethical and unprofessional conduct’ to protect the legal profession from dishonor and disgrace.” (Citation omitted.)
The Court concluded: “Unethical violations of the solicitation rule, such as the ones committed by [Lawyer] in this case, have the potential to harm people who are already in a vulnerable condition and bring dishonor and disgrace on the entire legal profession. This Court will not tolerate these improper solicitations and will ‘impose severe sanctions on those who commit violations of them.’” (Citation omitted.) Florida Bar v. Dopazo, __ So.3d __ (Fla., No. SC15-1305, 10/5/2017), 2017 WL 4416092.
Supreme Court rejects referee’s recommended sanction and imposes longer suspension on lawyer found guilty of disbursing trust funds without court approval and negligence in managing trust account. [Added 5/8/17]
Lawyer represented Wife in a divorce case in which the marital residence was the only disputed asset. When Lawyer learned that Husband took out a $100,000 home equity on the property and had spent $40,000, Lawyer filed a motion to preserve assets. The court ordered Husband to deposit the remaining $60,000 into Lawyer’s trust account. After the deposit, Lawyer disputed approximately $46,000 to his client, $12,000 to himself for fees, and used the rest to pay costs. Lawyer claimed that he made the disbursements “based on his genuine understanding of Florida’s equitable distribution principles.”
The parties entered a marital settlement agreement under which Wife would return $12,000 of the funds that had been disbursed to her. The court did not require Lawyer to re-deposit any money into the trust account “because the court concluded that the dispute had been resolved in the marital settlement agreement.” The court, however, referred Lawyer to the Florida Bar for investigation.
The Bar’s auditor found several instances of improper trust account maintenance, including having balances lower than they should have been, depositing earned fees into the trust account and thus commingling funds, and 3 overdrafts on the trust account. The referee found Lawyer had violated these rules: 4-3.4(c) (knowingly disobeying obligation under rules of tribunal); 5-1.1(a) (holding funds belonging to others in trust, separate from the lawyer’s own property); and 5-1.1(b) (money entrusted to a lawyer for specific purpose is held in trust and must be applied only to that purpose). The referee recommended a 90-day suspension and 1 year of probation.
Both the Bar and Lawyer sought Supreme Court review; Lawyer challenged findings in aggravation and mitigation, and both parties challenged the recommended sanction. The Supreme Court increased the sanction to a 1-year suspension followed by 2 years of probation with conditions.
The Court did agree with Lawyer that there was not sufficient support for the referee’s finding that Lawyer acted with a dishonest or selfish motive. The referee’s report, based on a joint stipulation as to the facts, noted that Lawyer acted based on his “genuine understanding” of Florida law. The Bar contended that the fact that Lawyer used some of the funds to pay his fee showed that his motives were “inherently selfish.” The Court disagreed. “[T]here is no evidence to indicate that [Lawyer] was not entitled to fees in his representation of the client, and the Bar did not allege that the fee was prohibited or excessive in violation of Bar Rule 4-1.5. Collecting a legally proper attorney’s fee, without more, is not itself a selfish or dishonest act.” Further, careless accounting does not evidence a dishonest or selfish motive.
As for the sanction, negligence in his trust accounting and disbursing the trust funds without a court order resolving the matter was sufficient grounds for the Court to reject the referee’s recommendation and impose the harsher sanction of a 1-year suspension followed by 2 years of probation. Florida Bar v. Brutus, __ So.3d __ (Fla., No. SC14-2499, 5/4/2017), 2017 WL 1739231.
Suspending lawyer for 1 year for lack of competence, failing to follow court rules and orders, and misrepresentation to court, Supreme Court holds that referee in disciplinary case may question respondent lawyer even if lawyer does not testify as witness. [Added 3/31/17]
The Florida Bar charged Lawyer with violating various ethics rules in connection with his representation of a client in federal court. The federal case had been dismissed due to “discovery violations that demonstrated a clear pattern of contumacious conduct.” The federal court specifically found that Lawyer made an intentional misrepresentation to the court when he electronically served a “Notice of Serving Responses to Discovery Requests” that was linked to a pending motion to compel written discovery. This led the magistrate judge to believe that Lawyer was providing the requested discovery materials, when no such materials were being provided.
The referee found that Lawyer had violated these rules: 4-1.1 (competence); 4-3.1 (frivolous assertions); 4-3.3 (candor toward a tribunal); 4-3.4(a) (unlawfully obstruct access to evidence); 4-3.4(c) (disobeying court rules or orders); 4-3.4(d) (discovery violations); and 4-8.4(d) (conduct prejudicial to administration of justice). The Supreme Court approved these findings despite challenges from Lawyer.
Lawyer also argued that he was deprived of a fair trial because: “(1) although he elected not to testify, the referee questioned him after the parties rested their cases, he was not placed under oath for such questioning, and the referee relied on [Lawyer]’s answers to these questions in making her findings of fact and recommendations as to guilt; and (2) the Bar was also allowed to cross-examine [Lawyer] after it rested its case.” The Court rejected this argument. A Bar disciplinary proceeding is a “quasi-judicial administrative proceeding” and is not civil or criminal, so the referee is not bound by the technical rules of evidence. And, unless the respondent has claimed an applicable privilege, he or she may be called as a witness by the Bar and questioned on matters material to the issues in the case. “Construing these principles together, we conclude the referee is authorized to ask questions of the respondent to clarify relevant facts and issues, even if the respondent does not testify as a witness. And, in any disciplinary proceeding, the respondent has an obligation to answer the referee’s questions truthfully, regardless of whether he or she is placed under oath.” The court further concluded that allowing the Bar to cross-examine Lawyer after the referee’s questioning and after the Bar had rested its case did not prejudice Lawyer, where his counsel was given the same opportunity. Florida Bar v. Bischoff, __ So.3d __ (Fla., No. SC14-2049, 3/2/2017), 2017 WL 823598.
Again finding recommended sanction too lenient, Supreme Court increases suspension of lawyer who mishandled $500 of trust money from 90 days to one year. [Added 2/22/17]
Lawyer asked Client for $500 to be used for deposition transcripts. Client gave Lawyer a $500 check, which Lawyer deposited into his operating account rather than his trust account. Lawyer did not pay for the transcripts. Several months later, Client inquired about the transcripts. Lawyer told Client that he had financial problems and used the money to pay expenses. Client indicated that she would pay the court reporter directly. Lawyer agreed to repay the money when he could. Almost a year later, Lawyer had not repaid the money. Almost a year after the original check was issued to Lawyer, he told Client that he had performed additional post-judgment legal services for which the fees would be more than $500, and offered to forgo charging for the additional services if Client would drop her demand for the $500.
A month later Client filed a bar complaint against Lawyer. Subsequently Lawyer met Client at a bank and paid Client the $500 “on the condition that [Client] would request dismissal of the Bar grievance she filed against” him. Lawyer gave Client a receipt indicating that the money was repaid and requesting that the Bar complaint be dismissed. When contacted by the Bar, Lawyer provided the Bar with a copy of the receipt. Lawyer also filed an inaccurate Certificate of Disclosure form indicating that he was not part of a legal firm (when he actually was).
Lawyer was found guilty of violating Rules 3-7.1(f) (notice of grievance to lawyer’s law firm), 4-1.5 (fees), and 4-8.4(d) (conduct prejudicial to the administration of justice). The referee recommended a 90-day suspension. The Supreme Court, however, suspended Lawyer for one year. Lawyer “converted client funds for his own use and repaid the funds at a later time. In addition, as in [Florida Bar v.] Frederick [756 So.2d 79 (Fla. 2000)], he attempted to condition the repayment upon the client’s agreement not to complain to the Bar about his misconduct. Based on the existing case law, we conclude that the Bar is correct that a one-year suspension, followed by two years’ probation with the conditions recommended by the referee, is warranted. As we have noted many times, misuse or misappropriation of client funds is one of the most serious offenses a lawyer can commit, and disbarment is presumed to be the appropriate punishment. Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla. 2000). We see no reason under the circumstances of this case, even given the referee’s uncontested findings of mitigation, to impose anything less than a rehabilitative suspension.” Florida Bar v. Wynn, __ So.3d __ (Fla., No. SC15-1323, 2/16/2017), 2017 WL 632871.
Supreme Court rejects “narrow view” of what constitutes competent representation, and increases discipline to be imposed on lawyer for “pattern of client neglect and mismanagement.” [Added 12/28/16] -- Florida Bar v. Picon, 205 So.3d 759 (Fla. 2016).
Supreme Court rejects referee’s recommendation and disbars rather than suspends 2 lawyers for involvement in secret settlement with insurer that effectively deprived co-counsel of fees and failed to disclose information to clients. [Added 10/31/16] -- Florida Bar v. Kane, 202 So.3d 11 (Fla. 2016).
Supreme Court permanently disbars 2 lawyers whose conduct “is among the most shocking, unethical, and unprofessional” ever seen by Court. [Added 8/25/16] -- Florida Bar v. Adams, 198 So.3d 593 (Fla. 2016).
Court had no authority to order lawyer to “self-report” to Florida Bar and to put confirmation of reporting in public court file. [Added 7/13/16] -- Parrish v. RL REGI Financial, LLC, 194 So.3d 571 (Fla. 2d DCA 2016).
Complaint alleging defamation against Florida Bar due to posting of disciplinary status on Bar’s website was properly dismissed by circuit court. [Added 6/8/16] -- Zavadil v. Florida Bar (Fla. 4th DCA, No. 4D15-3573, 6/8/2016), 2016 WL 3190918.
Supreme Court suspends lawyer for 3 years instead of recommended 90 days for violations of Rule 4-8.4(c) (dishonesty, deceit, misrepresentation, fraud) and 5-1.1(b) (trust accounting). [Added 6/2/16] -- Florida Bar v. Marrero, 192 So.3d 23 (Fla. 2016).
Circuit court did not depart from essential requirements of law in staying litigation pending results of Bar disciplinary case against one party’s lawyer filed by other party. [Added 12/23/15] -- Florida Wellness & Rehab Center, Inc. v. Libman, 178 So.3d 977 (Fla. 3d DCA 2015).
Supreme Court suspends lawyer for one year (rather than recommended 91 days) for bad faith conduct in violating court orders. [Added 6/3/15] -- Florida Bar v. Rosenberg, 169 So.3d 1155 (Fla. 2015).
Supreme Court increases lawyer’s suspension to one year for knowingly violating discovery obligations, failing to correct false testimony at deposition, and failing to notify opponent that she was in possession of property in which opponent claimed interest. [Added 4/24/15] -- Fla. Bar v. Dupee, 160 So.3d 838 (Fla. 2015).
Supreme Court suspends, rather than just reprimands, lawyer for lack of diligence despite fact that client suffered no harm. [Added 2/12/2015] -- Florida Bar v. Cohen, 157 So.3d 283 (Fla. 2015).
Rejecting referee’s report, Supreme Court finds lawyer guilty of misrepresentation and trust account violations and remands for sanctions hearing. [Added 1/26/15] -- Florida Bar v. Marrero, 157 So.3d 1020 (Fla. 2015).
Lawyer suspended for one year, rather than recommended 60 days, for failures in diligence and communication that led to clients spending time in jail for contempt. [Added 12/24/14] -- Florida Bar v. Gass, 153 So.3d 886 (Fla. 2014)
Settlement agreement conditioned on former client’s withdrawal of Bar complaint is unenforceable term that is not severable from purported agreement. [Added 9/2/14] -- Jaffe v. Guardianship of Michael Ross Jaffe, 147 So.3d 578 (Fla. 3d DCA 2014).
Supreme Court disbars lawyer for "continuing pattern of neglect" in divorce case. [Added 6/23/14] -- Florida Bar v. Davis, 149 So.3d 1121 (Fla. 2014).
Former judge is disbarred rather than suspended for “dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case.” [Added 6/6/14] -- Florida Bar v. Gardiner, 183 So.3d 240 (Fla. 2014).
Emphasizing deterrence effect of severe disciplinary sanctions, Supreme Court suspends lawyer for 3 years rather than 6 months for filing forged document and failing to promptly return funds to former client. [Added 6/4/14] -- Florida Bar v. Ross, 140 So.3d 518 (Fla. 2014).
Although not charged with or convicted of a crime, a lawyer is suspended by the Supreme Court for 1 year rather than the recommended 89 days for failure to file tax returns. [Added 5/14/14] -- Florida Bar v. Erlenbach, 138 So.3d 369 (Fla. 2014).
In disciplining bar member who was judicial candidate, Supreme Court reaffirms that prohibition against personal solicitation of campaign funds is constitutional. [Added 5/7/14] -- Florida Bar v. Williams-Yulee, 138 So.3d 379 (Fla. 2014).
Per Supreme Court, lawyer serving as appointed guardian is treated as attorney of record for purposes of rule requiring notice to a court when lawyer is suspended from practice. [Added 5/1/14] -- Florida Bar v. Townsend, 145 So.3d 775 (Fla. 2014).
Finding accused lawyer guilty of additional rules violations, Supreme Court imposes 3 year suspension rather than recommended 91 days. [Added 4/21/14] -- Florida Bar v. Committe, 136 So.3d 1111 (Fla. 2014).
Lawyer’s false and misleading statements regarding filing tax return for client result in 90-day suspension rather than recommended sanction of probation. [Added 12/29/13] -- Florida Bar v. MacNamara, 132 So.3d 165 (Fla. 2013).
Rejecting respondent lawyer’s arguments as to client identity, Supreme Court suspends him for 1 year instead of 90 days as recommended by referee. [Added 12/11/13] -- Florida Bar v. Whitney, 132 So.3d 1095 (Fla. 2013).
Rejecting recommended discipline, Supreme Court suspends lawyer for 91 days for misconduct related to personal loan and for improper client closing statements. [Added 11/15/13] -- Florida Bar v. Adler, 126 So.3d 244 (Fla. 11/14/2013).
Supreme Court increases discipline imposed on lawyer for negligent representation in postconviction proceeding. [Added 11/15/13] -- Florida Bar v. Polk, 126 So.3d 240 (Fla. 11/14/2013).
Supreme Court ups lawyer’s suspension to 2 years for unprofessional conduct toward judges and opposing counsel. [Added 11/4/13] -- Florida Bar v. Norkin, 132 So.3d 77 (Fla. 2013).
Supreme Court disbars rather than suspends lawyer whose gross negligence regarding trust account was insufficient to prove intent to misappropriate funds. [Added 9/5/13] -- Florida Bar v. Johnson, 132 So.3d 32 (Fla. 2013).
Court lacked authority to impose monetary sanctions on party for filing Bar complaints against opponent’s lawyers. [Added 8/26/13] -- Kass Shuler, P.A. v. Barchard, 120 So.3d 165 (Fla. 2d DCA 8/23/2013).
Supreme Court disbars rather than suspends lawyer for “extensive misconduct” of “often egregious nature.” [Added 6/28/13] -- Florida Bar v. Swann, 116 So.3d 1225 (Fla. 6/20/2013).
Rejecting recommended 1-year suspension, Supreme Court suspends lawyer for 2 years for undisclosed communications with judge during murder trial. [Added 6/24/13] -- Florida Bar v. Scheinberg, 129 So.3d 315 (Fla. 2013).
Supreme Court revokes lawyer’s bar admission for lack of candor in amending application. [Added 6/7/13 -- Florida Board of Bar Examiners re: Daniel Mark Zavadil, 123 So.3d 550 (Fla. 5/30/2013).
Supreme Court holds disbarred lawyer who continued to practice in contempt and orders him jailed for 60 days. [Added 5/14/13] -- Florida Bar v. Palmer, __ So.3d __, 38 Fla.L.Weekly S312 (Fla., No. SC10-543, 5/9/2013), 2013 WL 1908405.
Lawyers whose bookkeeper embezzled millions in client funds are disbarred for trust accounting violations and their conduct in responding to the problem. [Added 3/30/13] -- Florida Bar v. Rousso, 117 So.3d 756 (Fla. 3/28/2013).
Supreme Court suspends, rather than reprimands, 2 lawyers for misconduct during their departure from their former law firm. [Added 9/9/12] -- Florida Bar v. Winters, 104 So.3d 299 (Fla. 2012).
Finding additional violation and imposing harsher discipline than sought by Bar, Supreme Court suspends lawyer who breached client confidentiality. [Added 7/13/12] -- Florida Bar v. Knowles, 99 So.3d 918 (Fla. 2012).
Supreme Court imposes harsher-than-recommended discipline, suspending lawyer for misconduct not related to attorney-client representation. [Added 6/29/12] -- Florida Bar v. Draughon, 94 So.3d 566 (Fla. 2012).
Supreme Court construes rule of professional conduct regulating attorney-client business transactions in disbarring lawyer. [Added 4/3/12] -- Florida Bar v. Doherty, 94 So.3d 443 (Fla. 2012).
Suspending rather than admonishing lawyer, Supreme Court broadly construes rule against limiting malpractice liability to client. [Added 3/19/12] -- Florida Bar v. Head, 84 So.3d 292 (Fla. 2012).
Supreme Court imposes longer-than-recommended suspension on lawyer for misconduct in bankruptcy representation. [Added 2/17/12] -- Florida Bar v. Gwynn, 94 So.3d 425 (Fla. 2/16/2012).
Supreme Court suspends lawyer for 3 years rather than 90 days; confidentiality gives way to fiduciary obligations when holding money in trust for non-client. [Added 12/13/11] -- Florida Bar v. Watson, 76 So.3d 915 (Fla. 2011).
Supreme Court makes additional guilty finding and increases recommended suspension from 10 to 91 days in disciplinary case. [Added 11/4/11] -- Florida Bar v. Berthiaume, 78 So.3d 503 (Fla. 2011).
By 4-3 vote Florida Supreme Court rejects Bar's opposition and reinstates lawyer who failed to file delinquent tax returns until he petitioned for reinstatement. [Added 10/14/11] -- Florida Bar v. Hudson, 75 So.3d 215 (Fla. 2011).
Supreme Court suspends lawyer who sent non-complying direct mail letter containing material false statements. [Added 9/7/11] -- Florida Bar v. Letwin, 70 So.3d 578 (Fla. 2011).
Supreme Court suspends lawyer for providing improper financial assistance to client. [Added 6/28/11] -- Florida Bar v. Patrick, 67 So.3d 1009 (Fla. 2011).
Disbarred lawyer is prohibited from further pro se filings in Florida Supreme Court. [Added 5/17/11] -- Florida Bar v. Kivisto, 62 So.3d 1137 (Fla. 2011).
Supreme Court suspends lawyer for 3 years for rule violations in representation of putative class. [Added 5/4/11] -- Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011).
Lawyer publicly reprimanded for threatening to present criminal charges to gain advantage in civil matter. [Added 5/2/11] -- Florida Bar v. Knowles, 64 So.3d 1195 (Fla. 2011).
Supreme Court disbars lawyer for multiple trust account violations. [Added 4/8/11] -- Florida Bar v. Mirk, 64 So.3d 1180 (Fla. 2011).
Supreme Court suspends lawyer whose sexual relationships with clients violated conflict rule and other rules. [Added 3/7/11] -- Florida Bar v. Roberto, 59 So.3d 1101 (Fla. 2011).
Supreme Court disbars rather than suspends lawyer who practiced while suspended, with 3 concurring justices criticizing conduct of Bar prosecutor. [Added 2/5/1] -- Florida Bar v. Lobasz, 64 So.3d 1167 (Fla. 2011).
Lawyer is disbarred, not suspended, for criminal convictions and misconduct relating to drug abuse. [Added 11/11/10] -- Florida Bar v. Irish, 48 So.3d 767 (Fla. 2010).
Supreme Court denies rehearing for lawyer disciplined for using trade name "Legal Experts." [Added 8/31/10] -- Florida Bar v. Doane, 43 So.3d 640 (Fla. 2010).
Supreme Court disbars rather than suspends lawyer for misusing law to hurt members of public for personal gain. [Added 8/27/10] -- Florida Bar v. Hall, 49 So.3d 1254 (Fla. 2010).
Supreme Court rejects suspension recommendation and instead disbars lawyer convicted of drug trafficking. [Added 8/27/10] -- Florida Bar v. Liberman, 43 So.3d 36 (Fla. 2010).
Supreme Court imposes stricter discipline than recommended by referee in case involving conflict, competence, and misrepresentation. [Added 7/14/10] -- Florida Bar v. Shankman, 41 So.3d 166 (Fla. 2010).
Lawyer permanently disbarred, rather than suspended, for uncharged income tax evasion. [Added 7/2/10] -- Florida Bar v. Behm, 41 So.3d 136 (Fla. 2010).
Conduct resulting in finding of no probable cause can be used as aggravating factor in disciplinary case, per Florida Supreme Court. [Added 6/30/10] -- Florida Bar v. Ratiner, 46 So.3d 35 (Fla. 2010) (revised opinion).
Supreme Court disciplines lawyer who allowed non-lawyer to have signatory authority on escrow account. [Added 6/10/10] -- Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010).
In conflict of interest case, Florida Supreme Court imposes harsher disciplinary sanction than that recommended by referee. [Added 6/10/10] -- Florida Bar v. Scott, 39 So.3d 309 (Fla. 2010).
Supreme Court disciplines lawyer for using firm name containing term "expert." [Added 5/21/10] -- Florida Bar v. Doane, 43 So.3d 640 (Fla. 2010).
Supreme rejects referee's recommended sanction and disbars suspended lawyer found guilty of contempt. [Added 3/2/10] -- Florida Bar v. Bitterman, 33 So.3d 686 (Fla. 2010).
Supreme Court rejects stipulation for reinstatement of suspended lawyer due to her failure to pay restitution and costs. [Added 2/19/10] -- Florida Bar re: Thompson (Fla., No. SC09-263, 2/18/1020).
Supreme Court rejects referee's recommendation of lesser sanction and suspends lawyer for 1 year for violations relating to candor and conflict of interest. [Added 1/9/10] -- Florida Bar v. Head, 27 So.3d 1 (Fla. 2010).
Supreme Court disbars lawyer for two instances of engaging in unlicensed practice of law. [Added 11/18/09] -- Florida Bar v. D'Ambrosio, 25 So.3d 1209 (Fla. 2009).
Supreme Court sanctions disbarred lawyer who submitted numerous filings seeking readmission. [Added 9/2/09] -- Florida Board of Bar Examiners re: Anthony Eladio Ramos, 17 So.3d 268 (Fla. 2009).
Trial court erred in granting summary judgment for law firm sued on fee-sharing agreement by disciplined attorney. [Added 8/11/09] -- Chastain v. Cunningham Law Group, P.A., 16 So.3d 203 (Fla. 2d DCA 2009).
Supreme Court refuses reinstatement for a lawyer who engaged in the "practice of law" while suspended; definition discussed. [Added 7/13/09] -- Florida Bar re: Michael Howard Wolf, 21 So.3d 15 (Fla. 2009).
Supreme Court again imposes harsher disciplinary sanctions than recommended by referee, and refuses to recognize personal financial loss and embarrassment in mitigation. [Added 5/26/09] -- Florida Bar v. Ticktin, 14 So.3d 928 (Fla. 2009).
Supreme Court disbars lawyer for sexual misconduct, falsifying evidence, and trust account violations. [Added 5/1/09] -- Florida Bar v. Tipler, 8 So.3d 1109 (Fla. 2009).
Supreme Court imposes 18-month suspension on lawyer who started business that competed with one of his clients. [Added 2/24/09] -- Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009).
Supreme Court advises Governor that suspended lawyer who was elected to circuit judgeship is not eligible to take judicial office. [Added 2/4/09] -- Advisory Opinion to the Governor re: Commission of Elected Judge, 17 So.3d 265 (Fla. 2009).
Rejecting lesser sanction, Supreme Court suspends lawyer (who was just elected to the circuit bench) for disrespectful conduct toward a presiding judge. [Added 1/10/09] -- Florida Bar v. Abramson, 3 So.2d 964 (Fla. 2009).
Supreme Court again imposes harsher disciplinary sanction than that recommended by referee and sought by Bar. [Added 10/21/08] -- Florida Bar v. De la Torre, 994 So.2d 1032 (Fla. 2008).
Supreme Court again imposes harsher disciplinary sanctions than those recommended by referee and sought by Bar. [Added 9/26/08] -- Florida Bar v. Varner, 992 So.2d 224 (Fla. 2008).
Supreme Court disbars rather than suspends lawyer for having what "was in essence a partnership" with nonlawyer for immigration practice. [Added 6/30/08] -- Florida Bar v. Glueck, 985 So.2d 1052 (Fla. 2008).
In "disciplinary case of first impression," Supreme Court rejects recommended discipline and suspends lawyer for misconduct related to adoption. [Added 6/14/2008] -- Florida Bar v. Dove, 985 So.2d 1001 (Fla. 2008).
Lawyer who is subject of disciplinary proceedings barred from further pro se filings in case by Florida Supreme Court. [Added 3/21/08] -- Florida Bar v. Thompson, 979 So.2d 917 (Fla. 2008). NOTE: The Supreme Court subsequently permanently disbarred the lawyer. Florida Bar v. Thompson, 994 So.2d 306 (Table).
Finding additional conflict of interest violation, Florida Supreme Court rejects recommended discipline and suspends lawyer. [Added 1/24/08] -- Florida Bar v. Brown, 978 So.2d 107 (Fla. 2008).
Supreme Court rejects referee's findings of mitigating factors and imposes disbarment rather than recommended suspension. [Added 1/14/08] -- Florida Bar v. Valentine-Miller, 974 So.2d 333 (Fla. 2008).
In disciplinary case, Florida Supreme Court approves referee's rejection of drug addiction as "physical or mental disability" mitigating factor. [Added 12/15/07] -- The Florida Bar v. Bloom, 972So.2d 172 (Fla. 2007).
Florida Bar prosecutors absolutely immune from civil liability for actions taken in connection with their official duties, even if actions taken intentionally and maliciously. [Added 11/24/07] -- Spano v. Hoffman, 968 So.2d 674 (Fla. 4th DCA 2007).
Lawyer suspended for 91 days for failing to disclose to opposing counsel settlement agreement procured by lawyer's client and purportedly signed by opposing counsel's client. [Added 7/13/07] -- Florida Bar v. Nicnick, 963 So.2d 219 (Fla. 2007).
For first time, Florida Supreme Court readmits on conditional basis lawyer who resigned for disciplinary reasons. [Added 6/17/07] -- Florida Board of Bar Examiners re: Mark Stephen Barnett, 959 So.2d 234 (Fla. 2007).
"As a matter of policy" Florida Supreme Court orders respondent lawyer to pay Bar's costs of seeking review of referee's recommended discipline, even though respondent did not seek review. [Added 6/15/07] -- Florida Bar v. Martinez-Genova, 959 So.2d 241 (Fla. 2007) (opinion on rehearing).
Supreme Court rejects referee's recommendation and imposes reprimand rather than diversion in case involving lawyer's "sharp practice." [Added 6/9/07] -- Florida Bar v. Cocalis, 959 So.2d 163 (Fla. 2007).
Supreme Court discusses use of "failure to acknowledge wrongful nature of conduct" as aggravating factor in disciplinary cases. [Added 5/21/07] -- Florida Bar v. Germain, 957 So.2d 613 (Fla. 2007).
Supreme Court holds that Rule 4-5.6(b) is constitutional, and imposes fee forfeiture and stiff discipline on 2 lawyers who entered undisclosed engagement agreement with clients' adversary. [Added 5/8/07] -- Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007); Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007).
Rejecting referee's recommendation, Supreme Court suspends rather than disbars lawyer convicted of felonies. [Added 4/25/07] -- Florida Bar v. Del Pino, 955 So.2d 556 (Fla. 2007).
Supreme Court suspends lawyer for 90 days, rather than 2 years as recommended by referee, for violating competence and conflict rules. [Added 4/17/07] -- Florida Bar v. Maurice, 955 So.2d 535 (Fla. 2007).
Supreme Court disbars lawyer charged with misappropriating client funds, despite mental health mitigation and referee's recommendation of 3-year suspension. [Added 4/4/07] -- Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007). F
Supreme Court disbars lawyer who practiced while suspended. [Added 2/26/07] -- The Florida Bar v. Walkden, 950 So.2d 407 (Fla. 2007).
Supreme Court refuses to order lawyer to pay restitution to third party in disciplinary case. [Added 12/15/06] -- Florida Bar v. Walton, 952 So.2d 510 (Fla. 2006).
Lawyer's trial conduct leading to trial court's imposition of sanctions results in 91-day suspension by Supreme Court (rather than 10-day recommended suspension). [Added 11/2/06] -- The Florida Bar v. Tobkin, 944 So.2d 219 (Fla. 2006).
Lawyer who failed to properly supervise employee had requisite "intent" and was found guilty of violating Rule 4-8.4(c) and suspended for 3 years. [Added 10/6/06] -- The Florida Bar v. Riggs, 944 So.2d 167 (Fla. 2006).
Lawyer's "mere attendance at a courtroom proceeding," without more, not sufficient to support conclusion that lawyer practiced law while suspended. [Added 10/23/06] -- The Florida Bar v. D'Ambrosio, 944 So.2d 977 (Fla. 2006).
Suspended lawyer who failed to provide evidence of alcohol and drug rehabilitation denied reinstatement. [Added 10/20/06] -- The Florida Bar re: Alan R. Hochman, 944 So.2d 198 (Fla. 2006).
Fourth DCA upholds perjury conviction of lawyer's former employee who filed bar grievance containing untrue statement. [Added 10/18/06] -- Rutherford v. State, 939 So.2d 328 (Fla. 4th DCA 2006).
Fee refunds may be ordered only under limited circumstances in disciplinary cases, per Florida Supreme Court. [Added 6/29/06] -- The Florida Bar v. Feige, 937 So.2d 605 (Fla. 2006).
Lawyer suspended for 91 days for "inappropriate courtroom behavior." [Added 6/26/06] -- The Florida Bar v. Morgan, 938 So.2d 496 (Fla 2006).
Supreme Court warns that it is moving toward stronger sanctions for lawyer misconduct. [Added 6/8/06] -- The Florida Bar v. Broome, 932 So.2d 1036 (Fla. 2006).
Bar's unexplained delay in prosecuting disciplinary case is factor in Court's decision to impose 2-year, rather than 3-year, suspension. [Added 2/24/06] -- The Florida Bar v. Wolf, 930 So.2d 574 (Fla. 2006).
Florida denies reinstatement to suspended lawyer who has not been readmitted to bar of his home state. [Added 2/20/06] -- The Florida Bar re: Untracht, 923 So.2d 457 (Fla. 2006).
"Managing attorney" for nonlawyer's immigration business suspended for one year for assisting UPL and fee-splitting with nonlawyer. [Added 1/18/06] -- The Florida Bar v. Abrams, 919 So.2d 425 (Fla. 2006).
90-day suspension for lawyer who acted as counsel of record for disbarred lawyer and thus allowed him to provide legal services for his clients and commit UPL. [Added 11/28/05] -- The Florida Bar v. Stein, 916 So.2d 774 (Fla. 2005).
Lawyer who practiced law while suspended sanctioned; no willful contempt due to mental health mitigation. [Added 10/18/05] -- The Florida Bar v. Shoureas, 913 So.2d 554 (Fla. 2005).
Florida Bar grievance committee meetings confidential; respondents may be barred from attending. [Added 10/18/05] -- The Florida Bar v. Committe, 916 So.2d 741 (Fla. 2005).
Supreme Court declines to revoke lawyer's board certification as disciplinary sanction. [Added 9/21/05] -- The Florida Bar v. Kavanaugh, 915 So.2d 89 (Fla. 2005).
Misconduct dealing with his law firm nets lawyer 90-day suspension. [Added 7/12/05] -- The Florida Bar v. Shankman, 908 So.2d 379 (Fla. 2005).
Lawyer's moonlighting and subsequent denial results in loss of job and 30 day suspension from practice. [Added 6/2/05] -- The Florida Bar v. Kossow, 912 So.2d 544 (Fla. 2005).
ADA does not preclude Supreme Court from disbarring lawyer with serious drug and alcohol addiction. [Added 3/3/05] -- The Florida Bar v. Gross, 896 So.2d 742 (Fla. 2005).
Lawyer's cessation of conduct that resulted in emergency suspension not valid basis for lifting suspension. [Added 2/4/05] -- The Florida Bar v. Guerra, 896 So.2d 705 (Fla. 2005).
3-year suspension, not disbarment, appropriate for cases of client neglect short of "abandonment." [Added 8/23/04] -- The Florida Bar v. Shoureas, 892 So.2d 1002 (Fla. 2004).
Supreme Court rules that writing single $100 worthless check does not violate disciplinary rules, and declines to order restitution absent improper fees or misappropriation. [Added 1/22/04] -- The Florida Bar v. Smith, 866 So.2d 41 (Fla. 2004).