Category Archives: Florida judge ethics

Florida judge suspended for six months for judicial campaign violations and Bar Rule violations while he was a practicing lawyer

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Florida Supreme Court reprimanding and suspending a judge for six (6) months for violating the Florida Code of Judicial Conduct Canons related to judicial candidates and the Rules Regulating The Florida Bar while he was a practicing lawyer for, inter alia, making improper and false statements as a candidate, and failing to withdraw from a lawsuit where he had a conflict of interest.  The case is Inquiry Concerning a Judge, No. 13-25 Re: Andrew J. Decker, III, No. SC14-383 (March 2, 2017) and the Court’s opinion is here:  https://efactssc-public.flcourts.org/casedocuments/2014/383/2014-383_disposition_138059.pdf

The investigation into the alleged misconduct began before the judge was elected as a Third Judicial Circuit judge in 2012.  The judge was alleged to have had a conflict of interest while he was representing clients as a lawyer and of, among other things, falsely stating that he had never been accused of conflict of interest and stating that he was “pro-life” and Republican at campaign events before his election in 2012.  The judge maintained that his comments regarding his party and his views regarding abortion were “political speech” protected by the First Amendment.

The judge was also named in an inquiry by a Florida House committee regarding the time it takes to investigate and resolve allegations against judges.  Former Duval Circuit Judge Mark Hulsey was also named; however, he resigned the day before the committee began the inquiry.

In March 2015, after an investigation, the Judicial Qualifications Commission (JQC) recommended a 90-day suspension without pay; however, the opinion rejected that recommendation and imposed a six (6) month suspension, reprimand, and required payment of the JQC’s costs.

According to the opinion:  “All the violations established in this case demonstrate a pattern of poor judgment, and lack of concern for jointly represented clients and for other counsel and their clients.”  “Judge Decker’s misconduct unquestionably warrants the imposition of a serious sanction.”  The opinion also indicated that the judge’s misconduct did not result in any harm to his clients or anyone else and: “Although the series of acts by Judge Decker involving misconduct requires the imposition of a serious sanction, we have concluded it does not merit removal from office.”

Bottom line:  This case is interesting since all judicial candidates and judges are subject to investigation by the JQC  for alleged violations of the Judicial Canons for alleged misconduct while they are candidates or while they are on the bench.  They also can (and have been) prosecuted by The Florida Bar for misconduct before they are sworn in as a judge.  In this case, the Court suspended the judge for conduct both as a practicing lawyer and as a judicial candidate; however, The Florida Bar will have jurisdiction to prosecute the judge for Florida Bar Rule violations after he is no longer a judge.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Florida Judge candidate misconduct, Florida judge ethics, Florida Judicial Canons, Florida Judicial Qualifications Commission, joe corsmeier, Joseph Corsmeier, Judicial candidate misconduct, Judicial ethics

Florida Twelfth Circuit Judge charged with misconduct for allegedly accepting Tampa Bay Rays tickets from firm with case pending before him

Hello and welcome to this Ethics Alert blog which will discuss the February 1, 2016 Notice of Formal Charges filed by the Florida Judicial Qualifications Commission (JQC) against Florida Twelfth Circuit Judge John Lakin for allegedly requesting and accepting Tampa Bay Rays tickets from a law firm which had a case pending before him.  The JQC charges are here: https://efactssc-public.flcourts.org/casedocuments/2016/182/2016-182_notice_77834.pdf

According to the JQC Notice of Formal Charges and charges, in June 2015, the judge was presiding over the personal injury case of Wittke v. Walmart June, wherein the plaintiff accused Walmart of negligence, which caused her to fall and injure herself.  After a trial, Walmart was found by the jury not to be liable for the plaintiff’s injuries.  The day after the verdict was rendered, the judge asked his judicial assistant to contact the law firm which defended the plaintiff to request tickets for that night’s game between the Tampa Bay Rays and the Boston Red Sox.

The judge received five tickets valued at about $100 each, and he indicated that he only used two of the tickets.  The judge was from the Boston area.  According to the JQC Notice:  “The tickets you received were excellent seats, being located seven to eight rows back, between home plate and first base”.

According to the JQC Notice, the plaintiff’s law firm filed a motion 6 days later to set aside the verdict and for a new trial.  The motion was heard on August 21, 2015; however, the judge did not rule at that time.  On August 25, 2015, the judge requested and received five more tickets to a Tampa Bay Rays game from the law firm and, on August 26, 2015, the judge issued an order setting aside the verdict and granting a new trial.  The Order stated that  “(n)o reasonable jury could have returned a verdict finding that the Defendant was not at least partially liable for the injuries sustained by the plaintiff based on the evidence presented at trial.”   The Notice further states:  “(y)our extraordinary action allowed the Plaintiff a second opportunity to seek damages from Walmart. You have acknowledged that during your tenure on the bench you have never before overturned a jury verdict.”

According to the JQC Notice, the Chief Circuit Judge for the 12th Judicial District told the judge his conduct was inappropriate and told him to report it to the JQC.  The judge then disclosed that he had received tickets from the firm both to the JQC and to Walmart attorneys; however, according to the Notice, “(y)our subsequent disclosure to the parties on October 9, 2015, stated only that, ‘I previously received Tampa Bay Rays baseball tickets from the…law firm.’  Your disclosure did not include the dates that you accepted the tickets, nor did you even explain that you had accepted the tickets while the Wittke matter was pending.”  The JQC Notice also states that the judge received baseball tickets from two other law firms which have appeared before him.

The JQC rules prohibit judges from conducting activities outside of the courtroom which cast a reasonable doubt on his or her ability to be impartial, undermine the judge’s independence, or demean the judicial office and from “accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge.”

The JQC rules provide that the judge may file an answer to the Notice and charges within 20 days. The JQC will hold hearings and make a recommendation to the Florida Supreme Court, which will issue a formal order/opinion and impose discipline if the judge is found guilty.

Bottom line: This is a somewhat extraordinary and surprising case.  Perhaps the judge was unaware of the rules prohibiting accepting gifts from lawyers, specifically when the case is pending before him; however, under the most unfavorable argument, the judge could be alleged to have accepted the gift and issued favorable ruling as a direct result of the law firm’s gift.  Both lawyers and judges must be very aware of these clear prohibitions and also that the consequences of a violation of the rules, whether intentional or unintentional, will most likely be very severe.

Be careful out there!

Disclaimer:  this e-mail 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

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Florida judge ethics, Florida Judicial Canons, Florida Judicial Qualifications Commission, joe corsmeier, Joseph Corsmeier, Judge ethics accepting gifts, Judicial ethics, Judicial ethics accepting gifts from lawyers with pending cases

Florida Supreme Court issues order to show cause and immediately suspends judge who cursed at and fought with public defender

Hello and welcome to this Ethics Alert which will discuss the October 6, 2015 Florida Supreme Court order which rejected the Judicial Qualifications Commission (JQC) recommendation of a 120 day suspension for a judge who cursed at and fought with a public defender and ordered the judge to “show cause why removal from office is not the appropriate sanction in this case” by October 26, 2015.  The order also immediately suspended the judge without pay pending the disposition of the proceedings.  The JQC disciplinary case is Inquiry Concerning a Judge, Re: John C Murphy, Case No. SC-1582 (Fla. SC).  The Court’s October 6, 2015 order to show cause is here:  http://www.floridasupremecourt.org/pub_info/summaries/briefs/14/14-1582/Filed_10-06-2015_Order_to_Show_Cause.pdf#search=John C. Murphy

The judicial disciplinary charges resulted from a June 2, 2014 hearing in which the judge became upset with assistant public defender Andrew Weinstock after the lawyer refused to waive speedy trial for a client.  The judge told the lawyer: “You know if I had a rock, I would throw it at you right now. Stop pissing me off. Just sit down. I’ll take care of this. I don’t need your help. Sit down.”  The lawyer stated, in response: “I’m the public defender. I have a right to be here, and I have a right to stand and represent my clients.”

According to the JQC’s May 19, 2015 Findings, Conclusions and Recommendations, the judge “loudly commanded” the attorney to sit down and told him, “If you want to fight, let’s go out back and I’ll just beat your ass.”  The public defender accepted the judge’s challenge and he and the judge left the bench and met in the hall.  To that point, the exchange was captured on courtroom video and audio recordings; however, the hall confrontation was not recorded on video.

The judge was audio recorded making “an even more profane remark” as he confronted the lawyer.  Sounds of an altercation could be heard, followed by the lawyer asking for the judge to be arrested for grabbing and punching him; however, the report concluded that there was no clear and convincing evidence that the judge struck the lawyer and noted that a woman who took the lawyer’s photo the following day testified that she saw no evidence of injury.  The report also noted that the lawyer had a reputation at the courthouse for being rude and unprofessional and that he was “defiant, defensive, evasive and at times testified inconsistent with what he had earlier reported” at the JQC hearing.  The report concluded that the lawyer was not a credible witness.

The JQC Findings state that the judge was well-liked among other judges and that he was endorsed by lawyers who said he was a good judge and expressed surprise at the situation. The judge also took responsibility for his actions and “expressed profound remorse”; however, the incident created “a remarkable national embarrassment” for Florida’s judiciary and its citizens.  The report recommended a three-month suspension, a $50,000 fine, costs of the proceedings, and a public reprimand.  The JQC Findings, Conclusions and Recommendations are online here:  http://www.floridasupremecourt.org/pub_info/summaries/briefs/14/14-1582/Filed_05-19-2015_Findings_Conclusions_Recommendations.pdf

After the commission filed its Findings, the Supreme Court issued an order to show cause on May 21, 2015 as to why the recommendation should not be granted.  On June 25, 2015, the judge filed a response through counsel stating that he would not contest the recommendations; however, he called the sanctions harsh and possibly unprecedented and pointed out the burden his suspension would place on his colleagues.  The response stated that the judge immediately took responsibility for his actions, apologized for his mistake, and did not publicly respond to the lawyer’s allegedly false claims that he struck the lawyer.  The response referred to letters from lawyers and the public stating that he is “a good man and an excellent judge,” as opposed to the lawyer, who “left a trail of judges offended by his behavior.”

The judge’s response further states: “The sanctions recommended by the JQC indeed are harsh. Judge Murphy accepts them while recognizing how difficult it would be emotionally — being off the bench for four months — and financially. As for public scrutiny and ridicule, he knows it is of his own making, and he is shamed. Judge Murphy will not quarrel with the JQC recommendations.  Dozens of endorsements through this process identify Judge Murphy as a good man and a good and fair jurist. This one moment in time should not be allowed to define his life and career.”  The judge’s response is here:   http://www.floridasupremecourt.org/pub_info/summaries/briefs/14/14-1582/Filed_06-25-2015_Response_Order_Show_Cause.pdf#search=John C. Murphy

The JQC filed a reply on June 30, 2015 which states: “again, as he did at trial, (the judge) expends quite a bit of effort to deflect responsibility for the situation upon attorney Andrew Weinstock, minimizing the impact of his improper language and the aggressive physical confrontation in the hallway outside the courtroom directed at Mr. Weinstock. Compounding his misconduct he proceeded to handle the cases of seven separate clients of Mr. Weinstock after the confrontation in the hallway, including persuading five of them to waive speedy trial, the very act that Mr. Weinstock had steadfastly refused to do. Finally, he makes much of the fact that the Hearing Panel did not find that blows were actually struck, which is irrelevant under these circumstances.”

The JQC reply concludes: “A truly contrite Judge Murphy would avoid heaping blame on others, would accept without reservation the discipline proposed by the hearing panel in this matter, and would be grateful that removal was not recommended”.  “Instead, what we see is a grudging acceptance and a continued, major effort to deflect his own responsibility onto someone else for his egregious wrong.” The JQC reply is here:  http://www.floridasupremecourt.org/pub_info/summaries/briefs/14/14-1582/Filed_06-30-2015_JQC_Reply_Response_Show_Cause_Order.pdf#search=John C. Murphy

Bottom line: This incident was, of course, widely publicized in the media and the judge was both criticized and ridiculed (as well as the judiciary as a whole).  The JQC Findings recommended a 4 month suspension; however, the JQC reply was extremely critical of the judge’s response and stated that it was part of “ a continued, major effort to deflect his own responsibility onto someone else for his egregious wrong.”  I suspect that the Supreme Court was not happy with this incident in the first instance and this “deflection of responsibility” may have been a major factor (if not the main factor) in the Court’s order immediately suspending the judge and ordering him to show cause why he should not be removed from judicial office.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Florida judge ethics, Florida Judicial Canons, Florida Judicial Qualifications Commission, joe corsmeier, Joseph Corsmeier, Judge misconduct cursing and fight with lawyer, Judicial ethics

U.S. Supreme Court upholds Florida’s judicial rule prohibiting direct campaign contribution solicitations by judges and judicial candidates

Hello everyone and welcome to this Ethics Alert which will discuss the very recent United States Supreme Court opinion upholding Florida’s judicial rule prohibiting judges and judicial candidates from directly soliciting campaign contributions.  The case is Williams-Yulee v. Florida Bar, No. 13-1499.  (April 29, 2015).  The link to the opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-1499_d18e.pdf

A Florida lawyer named Lanell Williams-Yulee was a 2009 candidate for a county court judgeship.  She signed a letter asking potential voters to donate to her campaign.  She lost the election and was subsequently prosecuted by The Florida Bar as a lawyer for an alleged violation of 7C(1) the Florida Code of Judicial Conduct.  After the lawyer was found guilty, The Florida Supreme Court reviewed the matter and upheld the guilty finding.  The lawyer then filed for a Writ of Certiorari with the U.S. Supreme Court challenging the constitutionality of the Canon, arguing that it violated the First Amendment by restricting her speech.

As background, the Florida Supreme Court implemented the prohibition of direct solicitation for judges and judicial candidates in the 1970s after three of that Court’s justices resigned as a result corruption scandals. The opinion states that, “(a)ccording to the American Bar Association, 30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to Canon 7C(1).”

Chief Justice John Roberts wrote the 5-4 opinion which upheld the prohibition of direct solicitation.  Interestingly, he was on the same side as the four liberal justices.   The opinion states:

“Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions.”

 

“A State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections, because a judge’s role differs from that of a politician. Republican Party of Minn. v. White, 536 U. S. 765, 783. Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors. As in White, therefore, precedents applying the First Amendment to political elections have little bearing on the issues here.”

“Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. When the judicial candidate himself asks for money, the stakes are higher for all involved. A judicial candidate asking for money places his name and reputation behind the request, and the solicited individual knows that the same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public.”

 

“The desirability of judicial elections is a question that has sparked disagreement for more than 200 years, but it is not the Court’s place to resolve that enduring debate. The Court’s limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.”

“(W)e hold today what we assumed in White:  A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.”  “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.”

Justice Anthony Kennedy, in his dissent, states that “(b)y cutting off one candidate’s personal freedom to speak, the broader campaign debate that might have followed—a debate that might have been informed by new ideas and insights from both candidates—now is silenced” along with the “educational process that free speech in elections should facilitate.”

 

Bottom line:  This is an important U.S. Supreme Court decision upholding a Florida prohibition of solicitation by a judge or judicial candidate in the ongoing (and long running) debate regarding the balancing of First Amendment/free speech with the regulation of judicial elections.  The decision is surprising since the Supreme Court’s current conservative majority has stricken down virtually every campaign-finance limitation in the past decade, stating that political contributions spending are the equivalent of free speech, which generally cannot be limited.  In addition, Chief Justice Roberts joined the four liberal justices in the decision.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

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Filed under Attorney discipline, Florida judge ethics, Florida Judicial Canons, Florida lawyer discipline solicitation of judicial contributions, joe corsmeier, Joseph Corsmeier, Judicial ethics, Lawyer discipline for judicial contribution solicitation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Florida Supreme Court disbars former judge for extensive texting with prosecutor while presiding in murder trial and for “dishonest conduct”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Florida Supreme Court opinion disbarring a lawyer and former judge for extensive texting with a prosecutor at the same time that she was the presiding judge in the prosecutor’s first degree murder trial. The opinion is The Florida Bar v. Ana I. Gardiner, No. SC11-2311 (June 5, 2014) and the Supreme Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2014/sc11-2311.pdf#search=gardiner

According to the opinion, the former judge/lawyer was the presiding judge in State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder case and former prosecutor Howard Scheinberg was the lead prosecutor in the case.

On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder and the former judge/lawyer presided over the penalty phase on April 30 and May 1, 2007, which resulted in a jury recommendation of the death penalty. On August 24, 2007, the former judge/lawyer entered an order sentencing Loureiro to death.

The referee’s report found that on March 23, 2007, several days before the jury returned its guilty verdict, the former judge/lawyer was having dinner at a restaurant when she accidentally encountered the prosecutor. After dinner, the former judge/lawyer, the prosecutor and some others decided to go to a bar and the prosecutor drove to the bar with a law student.

During the drive, the law student raised the appearance of impropriety that might exist if the presiding judge and the lead prosecutor in a pending murder trial socialized while the case was ongoing. The prosecutor was upset by this and left the bar shortly after arriving. The referee found that the former judge/lawyer tried to find out what had upset the prosecutor and spoke with him on the telephone several times during the following weekend.

The trial continued on Monday, March 26, 2007 and the former judge/lawyer did not disclose her interaction with the prosecutor on the record. On March 27, 2007, after the jury returned a guilty verdict, the former judge/lawyer and the prosecutor had a lengthy telephone conversation, wherein the prosecutor told the former judge/lawyer about his discussion with the law student on the way to the bar; however, according to the referee’s report, the former judge/lawyer assured the prosecutor that there was nothing to worry about and that she made a “conscious decision” not to disclose her social interaction and telephone calls.

The referee that the former judge/lawyer and the prosecutor began a “significant personal and emotional relationship” and, between March 23 and August 24, 2007, the day that the former judge/lawyer imposed a sentence of death, she and the prosecutor exchanged 949 cell phone calls and 471 text messages. On the day before, the day of, and the day following the imposition of the death sentence, the former judge/lawyer and the prosecutor communicated by telephone and text 44 times and the former judge/lawyer “deliberately and knowingly chose not to disclose this emotional relationship to the defense, despite her clear duty to do so.”

Loureiro’s attorneys filed a direct appeal to the Florida Supreme Court and soon after, media began reporting allegations that the former judge/lawyer and the prosecutor had met socially at a restaurant and a bar during the murder trial. The Court sent the matter back to the circuit court to consider the communications between the former judge/lawyer and the prosecutor, and determine whether a new trial should be ordered. The Broward County State Attorney’s office hired a special prosecutor to conduct the investigation and, on April 30, 2009, the former judge/lawyer appeared for a deposition. During her deposition testimony, she acknowledged for the first time her ongoing emotional relationship with the prosecutor. The State Attorney’s office eventually agreed to a new trial in the case. At the second trial, Loureiro was convicted and sentenced to life in prison.

In November 2008, the Judicial Qualifications Commission appointed a panel to investigate and determine whether the former judge/lawyer engaged in misconduct. The former judge/lawyer appeared before the panel in late November 2008 and, according to the referee, she “failed to disclose the honest and true nature of her relationship with the prosecutor.” In April 2010, the former judge/lawyer resigned as a circuit judge.

The referee found that the former judge/lawyer’s testimony would “leave any reasonable person with the misimpression that her relationship with (the prosecutor) was merely professional. She did not disclose their emotional relationship or the significant number of personal phone and text communications they exchanged during the penalty phase of the Loureiro trial. She also did not disclose that her relationship with (the prosecutor) continued after the trial and intensified. During the period from March 2008 through August 2008, former judge/lawyer and the prosecutor exchanged more than 3000 phone and text communications. The referee further found that former judge/lawyer’s testimony during the JQC proceedings was a ‘deliberate act of dishonesty and deceitfulness.’”

The referee recommended that former judge/lawyer be found guilty of violating three Florida Bar Rules, 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline) and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 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).

After considering aggravating and mitigating circumstances, the referee recommended that the former judge/lawyer be suspended from the practice of law for one (1) year and pay the Bar’s costs. The Bar filed a Petition for Review and requested that the former judge/lawyer be disbarred. The Supreme Court opinion discussed the former judge/lawyer’s “dishonest conduct” and the harm it caused at length and “(c)onsidering (the former judge/lawyer’s) dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction.”

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 presiding judge and prosecutor in a first degree murder trial in south Florida. It is also another disciplinary case wherein the Florida Supreme Court significantly increased a referee’s recommendation discipline, this time from a one (1) year suspension to disbarment.

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
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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Florida Supreme Court imposes 2 year suspension on former criminal prosecutor who had personal relationship with judge and contact while judge was presiding over his trial

Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida increasing the referee’s recommended discipline of former criminal prosecutor who had a personal relationship with circuit judge and extensive contact while that judge was presiding over his trial from a 1 year to a 2 year suspension.  The opinion is The Florida Bar v. Scheinberg, SC11-1185 (June 20, 2013) and is here: http://www.floridasupremecourt.org/decisions/2013/sc11-1865.pdf.  

According to the opinion, “(i)n 2007, Scheinberg was the lead prosecutor in State of Florida v. Omar Loureiro, a first-degree capital murder case in which the State was seeking the death penalty. Former Judge Ana Gardiner was the presiding judge in the case. On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder. Subsequently, on May 20, 2007, the jury recommended the death penalty; on August 24, 2007, former Judge Gardiner imposed the death penalty. During the period of time from March 23, 2007, four days before the jury returned its guilty verdict in Loureiro, to August 24, 2007, the day that former Judge Gardiner imposed the death penalty, Scheinberg and Gardiner engaged in substantial personal communications by phone or text message. Specifically, Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages during that period. Scheinberg did not disclose these communications to the attorney representing Loureiro.

“The referee found: ‘The undisclosed conduct between former Judge Ana Gardiner and the respondent, 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 recommends that Scheinberg 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). The referee observed: ‘The undisclosed communications between the judge and Respondent 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 found three aggravating factors in this case: a pattern of misconduct; multiple offenses; and substantial experience in the practice of law. The referee also found four mitigating factors: the 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.  As to the sanction, the referee recommends that Scheinberg be suspended from the practice of law for one year. The referee also awarded costs to The Florida Bar, in the amount of $3,881.96.”

“As we noted above, there 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: This is a somewhat extreme example of extensive improper personal and certainly ex parte contact between a presiding judge and an attorney litigating a case, which was amplified by the fact that it was a criminal death penalty case.  It is also another example of the Florida Supreme Court not hesitating to increase the discipline recommended by the referee assigned to the Bar disciplinary case, which I have reviewed and discussed in previous Ethics Alerts and seminars.  The opinion is also highly is unusual since the Supreme Court significantly increased the discipline after the lawyer (not the Bar) filed a petition to review the recommended discipline.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.           

Disclaimer:  this e-mail 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

Fax     (727) 799-1670

jcorsmeier@jac-law.com

 

www.jac-law.com

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, Florida judge ethics, Florida Judicial Canons, Florida Lawyer Ethics and Professionalism, Florida Lawyer Professionalism, joe corsmeier, Joseph Corsmeier, Judicial ethics, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer improper ex parte contact with judge, Lawyer sanctions, Prosecutorial misconduct ethics

Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial

Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial.

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Filed under Attorney discipline, Attorney Ethics, Florida judge ethics, Florida Judicial Canons, Florida Judicial Qualifications Commission, Florida Lawyer Ethics and Professionalism, joe corsmeier, Judicial ethics, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism