Hello everyone and welcome to this Ethics Alert blog which will discuss the June 2013 Florida Supreme Court opinion suspending a lawyer and former prosecutor for extensive texting with a presiding judge who was the judge in the prosecutor’s first degree murder trial. The opinion is The Florida Bar v. Scheinberg, SC11-1865 (Fla. Supreme Court June 20, 2013) and the Supreme Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2013/sc11-1865.pdf. This is a follow up to my recent blog discussing the case of The Florida Bar v. Ana I. Gardiner, SC11-2311 (Fla. Supreme Court June 5, 2014) where the Court disbarred the former circuit judge on the same facts. That case is at: http://www.floridasupremecourt.org/decisions/2014/sc11-2311.pdf.
According to the opinion, in 2007, the lawyer was the lead prosecutor in State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder over which former Circuit Judge Ana Gardiner was presiding. On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first degree murder and on May 20, 2007, the jury recommended the death penalty. On August 24, 2007, the former judge imposed the death penalty.
Between March 23, 2007 (four days before the jury returned its guilty verdict in Loureiro) and August 24, 2007 (the day that the former judge imposed the death penalty), the lawyer/former prosecutor and the former judge “engaged in substantial personal communications by phone or text message. Specifically, lawyer/former prosecutor admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages during that period which the lawyer/former prosecutor did not disclose to the lawyer representing Loureiro.”
Following Loureiro’s conviction and sentence, his attorneys filed a direct appeal. When the communications between lawyer/former prosecutor and the former judge were discovered, the Broward State Attorney’s office agreed to a new trial in the case. The referee found that “(t)he undisclosed conduct between former Judge Ana Gardiner and the (lawyer/former prosecutor) contributed to the decision by the State of Florida, through its Broward State Attorney to agree to a new trial in State of Florida v. Omar Loureiro to dispel any public misconception that there was any denial of due process.”
The referee’s report recommended that lawyer/former prosecutor be found guilty of violating Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) and that “(t)he undisclosed communications between the judge and the (lawyer/former prosecutor) prejudiced the system. The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice.”
The referee also found three aggravating factors, including a pattern of misconduct; multiple offenses; and substantial experience in the practice of law as well as four mitigating factors, absence of a prior disciplinary record; full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings; good character or reputation; and remorse. The referee recommended that lawyer/former prosecutor receive a one year suspension from the practice of law and pay the Bar’s costs of $3,881.96. The lawyer filed a petition for review of the referee’s recommendations.
The opinion further stated:
“(e)ven in the absence of evidence that a romantic relationship with an attorney practicing in a judge’s court has influenced the judge’s judgment, the judge’s authority necessarily suffers. First, the intimate relationship itself is contrary to the judge’s role of maintaining detached neutrality as to the litigants and lawyers who appear in his or her courtroom. Second, in continuing to preside over cases in which the lawyer appears during the relationship, the judge necessarily depletes the single most important source of his or her authority—the perception of the legal community and public that the judge is absolutely impartial in deciding cases.
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(T)here is little case law from this Court that addresses the situation presented in this case, where an attorney engages in extensive personal communications with a presiding judge in a capital case, without disclosing those communications to the opposing party. The Report of Referee cites Florida Bar v. Mason, 334 So. 2d 1 (Fla. 1976), in which the Court suspended an attorney for one year for egregious ex parte communications with Justices of the Florida Supreme Court concerning a pending case. In Mason, the Court noted that the ex parte communications at issue were ‘fundamentally wrong,’ and that ‘there can be no temporizing with an offense the commission of which serves to destruct the judicial process.’
Here, there is no dispute that the communications between Scheinberg and former Judge Gardiner did not concern the Loureiro case. Nonetheless, we do find guidance in Mason, in that Scheinberg’s conduct similarly created an appearance of impropriety and caused harm to the judicial process. Scheinberg and Gardiner engaged in a substantial number of personal communications that were not disclosed to the opposing party and his attorney. Moreover, this conduct occurred in the context of a capital first-degree murder case where the judge had to rule on motions made by and against the respondent and where the judge could, and did, impose the ultimate sentence of death. The communications between Scheinberg and former Judge Gardiner led to an investigation and, ultimately, caused the Loureiro case to be retried, a process which consumed court resources, as well as the resources of opposing counsel. Given the seriousness of Scheinberg’s misconduct and the harm it caused to the administration of justice in the Loureiro case, together with the aggravating and mitigating factors found by the referee, we hold that a two-year suspension is the appropriate discipline. Thus, we disapprove the referee’s recommended sanction, and instead suspend Scheinberg for two years.”
Bottom line: As many of you may already know, this was an extremely high profile, media intensive case involving allegations of very serious (and somewhat inexplicable) conduct/misconduct by the lawyer/former prosecutor (and the presiding circuit judge) in a first degree murder trial in south Florida. It is also another disciplinary case where the Florida Supreme Court significantly increased a referee’s recommendation discipline, this time from a one (1) year suspension to a two year (2) suspension.
Let’s be careful out there.
Disclaimer: this Ethics Alert blog is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
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