Category Archives: Florida judge ethics

Florida Supreme Court hears oral argument in case where judge found that Facebook “friendship” with lawyer was not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent oral argument which was held by the Florida Supreme Court in a matter wherein a Miami-Dade County Circuit Judge denied a motion to disqualify a lawyer who was a “friend” on the judge on Facebook and the Third District Court of Appeal upheld the lower court’s order.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).

The law firm filed a petition with the Florida Supreme Court to stay the proceedings and invoke the Court’s discretionary jurisdiction.  The Court accepted jurisdiction and ordered a stay and oral argument was held on June 7, 2018   The video of the oral argument is here:  https://wfsu.org/gavel2gavel/viewcase.php?eid=2490

As I previously blogged, the Circuit Judge held that she was not required to recuse herself from a case in which she was a Facebook “friend” of the lawyer for one of the witnesses/potential parties.  That lawyer was also a former judge with whom the judge worked before he resigned as a circuit judge.  The decision appeared to depart from a previous 4th DCA opinion and an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).

The Herssein law firm appealed to the Third DCA, which denied the appeal and stated:

“…we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

The Herssein law firm then requested that the Florida Supreme Court invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv) and, in support of the request, stated:  “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”

During the oral argument on June 7, 2018, the justices expressed divergent views regarding whether a “Facebook” friendship should trigger the disqualification of judges and also noted there was no record of the extent of the trial judge’s Facebook presence in this matter, including the number of friends, how often and what type of information was posted, and any communications between the lawyer and the judge.  Many of the justices also said they do not use Facebook, and some stated that this was to avoid the questions that are being raised in this case.

According to an article in the July 1, 2018 Florida Bar News, Justice Allan Lawson stated that Facebook friendship is “a spectrum that runs from close friendship, but runs further to someone you don’t recognize on the street or might not know…I’m having a hard time wrapping my mind around the argument that…I have no connection with this person, (and that) would somehow result in recusal or disqualification.”  Justice Peggy Quince noted that the problem is “where would you draw the line” regarding the type of friendship that would require a recusal.

Bottom line:  As I have said in my previous blogs, the circuit judge’s order and the 3rd DCA opinion appear to be contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and the opinion acknowledges that it is in conflict; however, it does provide the rationale that each case should be decided by examining the facts and the relationship.  This would seem to create potential confusion and disqualification motions which would then have to be decided on a case by case basis.  The Florida Supreme Court may now decide whether to there will be a case by case analysis or a bright line rule.

I would again point out that it would be prudent for judges and lawyers who may appear before judges to consider not being “friends” or otherwise have a connection on social media or, if they are already connected in a case, to immediately remove the connection, disclose it to all parties, and the judge could possibly provide an option to recuse if a party believes that there may be potential prejudice.

Be careful out there.

Disclaimer:  this Ethics Alert 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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Referee recommends that former Florida judge who accepted Tampa Bay Rays tickets be suspended for 90 days and placed on probation

Hello everyone and welcome to this Ethics Alert which will discuss the recent Report of Referee which recommends that former Lee County Judge John Lakin, who was alleged to have improperly accepted tickets to Tampa Bay Rays baseball games, be suspended from practice for 90 days and be placed on probation for one year.  The case is The Florida Bar v. John Francis Lakin, SC17-542.  The June 25, 2018 Report of the Referee is here: https://www.documentcloud.org/documents/4564632-Referee-Report-Lakin.html

The Judicial Qualification Commission charged the judge with misconduct in 2016 alleging, inter alia, that he had requested and received Tampa Bay Rays tickets from a law firm in 2015 while presiding over a pending case in which the law firm represented one of the parties.  A jury ruled in favor of opposing party; however, the judge subsequently reversed that verdict in favor of the law firm’s client.  Five of the tickets that the judge received were given to him the day before he reversed the jury verdict.  The judge denied that the receipt of the tickets influenced his actions and later retired from the bench and went into private practice.

The Florida Bar filed a Complaint in March 2017 alleging that the lawyer violated Bar Rules related to dishonesty, deceitfulness, misrepresentation and/or fraud.  The referee assigned to hear the Bar matter recommended that the former judge’s law license be suspended for 90 days, and that he be placed on supervised probation one year, complete the Bar’s practice and professionalism enhancement program, “speak to new judges” about the circumstances, and pay the Bar’s costs of $5,244.00.

Under the Florida Bar rules, the referee’s report will now be reviewed by the Florida Supreme Court, which will render a final disciplinary opinion.  The judge and The Florida Bar can file a petition with the Court to review the findings and file briefs.

Bottom line:  This former judge accepted tickets from lawyers who were representing a party before him on a pending case and, soon after receiving the tickets, made a ruling which favored that law firm’s clients.   Even if the tickets did not influence the judge’s decision, the circumstances would certainly seem to create an appearance of impropriety and an arguable violation of the Judicial Canons.  The referee has now recommended that the judge be found guilty of Florida Bar Rule violations and suspended from practicing law for 90 days.  The Florida Supreme Court will now decide whether the referee’s findings will be upheld.

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.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Herssein law firm files emergency motion with Florida Supreme Court to quash 3rd DCA opinion and order claiming violation of stay

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (December 13, 2017) Motion to Quash filed by the Herssein law firm in the Florida Supreme Court proceeding challenging a Miami-Dade County Circuit Judge’s denial of a motion to disqualify a lawyer who was a former judge and “friend” of the judge on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).  The Herssein law firm’s Motion to Quash is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_115391_motion2dother20substantive.pdf.

The law firm filed an emergency motion on December 13, 2017 asking the Florida Supreme Court to quash a December 13, 2017 3rd DCA opinion quashing two discovery orders and an order granting fees to USAA, claiming that the opinion and order violated the Supreme Court’s Stay Order dated December 7, 2017.

As I previously blogged, the Herssein law firm moved to disqualify the judge from a contract dispute against their client, the United States Automobile Association (USAA) in which a lawyer who represented a non-party USAA employee in the matter was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009), which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Circuit Judge Beatrice Butchko found that she was not required to recuse herself from the case and the Herssein firm asked the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv).  In a December 7, 2017 Order, the Court issued a stay of the lower court proceedings and, in an Order dated December 11, 2017, accepted jurisdiction and provided a briefing schedule.

Bottom line:  In a strange turn of events, the law firm has filed a motion claiming that the 3rd DCA rendered an opinion and order which violate the Florida Supreme Court’s stay of the lower court proceedings and asking the Supreme Court to quash the opinion and order.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert 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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Florida Supreme Court stays lower court case where judge found that Facebook “friendship” with lawyer was not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (12/7/17) Order of the Florida Supreme Court granting the Herssein law firm’s Motion to Stay the lower court proceeding wherein Miami-Dade County Circuit Judge denied a motion to disqualify a lawyer who was a “friend” on the judge on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).  The Herssein law firm’s Motion for Stay is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_114995_motion2dstay2028proceedings20below29.pdf and the December 7, 2017 Florida Supreme Court Order is here:  https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_order_224307_o03bo.pdf.

As I previously blogged, the Third DCA upheld the decision of Miami-Dade Circuit Judge Beatrice Butchko that she was not required to recuse herself from a case in which she was a Facebook “friend” of the lawyer for one of the witnesses/potential parties.  The lawyer was also a former judge with whom she worked before he resigned as a circuit judge.  This decision departs from a previous 4th DCA opinion and an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).

The Third DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

The Herssein law firm had moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which an attorney named Reyes represented a non-party USAA employee in the matter, who was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009).  That opinion states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The Third DCA opinion states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

The Herssein law firm filed a Notice asking the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv). In support of the request, the Notice states:  “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”

Bottom line:  As I said in my previous blogs, the lower court’s order and the 3rd DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and acknowledges that it is in conflict with that opinion; however, it does provide the rationale that each case should be decided by examining the facts and the relationship.  This would seem to create potential confusion and potential disqualification motions would then have to be decided on a case by case basis.  The Florida Supreme Court has now stayed the lower court matter while it presumably looks at the issue and decides whether to invoke its discretionary jurisdiction.

Again, it would seem to be prudent for judges and lawyers who may appear before them not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection, disclose it to all parties, and (the judge may) possibly provide an option to recuse if the party believes that it could be potentially prejudiced.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert 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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Law firm requests Florida Supreme Court to invoke discretionary jurisdiction challenging judge’s finding that Facebook “friendship” with lawyer is not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (10/17/17) Notice that was filed with the Florida Third District Court of Appeal (and docketed with the Florida Supreme Court) seeking to invoke the discretionary jurisdiction of Florida Supreme Court and challenging the appeals court decision which declined to disqualify a Miami-Dade County Circuit Judge who was “friends” with opposing counsel on Facebook.  The 3rd DCA case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 3D17-1421, Lower Tribunal No.: 2015-015825-CA-43 (Florida 3rd DCA) and the Supreme Court case number is SC17-1848.  The Notice and 3rd DCA opinion are here:  https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_notice_82684_e81d.pdf and the SC docket with the filing is here: http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2017&p_casenumber=1848

As I previously blogged on 8/4/17 and 8/24/17, the 3rd DCA upheld the decision of Miami-Dade Circuit Judge Beatrice Butchko that she was not required to recuse herself from a case in which she was a Facebook” friend” of the lawyer for one of the parties.  The lawyer was also a former judge with whom she worked before he stepped down as a judge.  This decision diverges from a 4th DCA opinion as well as an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).  The 3rd DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

The Herssein law firm then moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which Reyes represents a non-party USAA employee in the matter, who was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009).  That opinion states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The 3rd DCA opinion states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

The Herssein law firm has filed a Notice with the 3rd DCA (which was received and docketed with the Florida Supreme Court on 10/17/17) asking the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv). In support of the request, the Notice states:  “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”

Bottom line:  As I said in my previous blogs, the 3rd DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and acknowledges that it is in conflict with that opinion; however, it does provide the rationale that each case should be decided  by examining the facts and the relationship.  This would seem to open up potential confusion and potential disqualification motions that would have to be decided on a case by case basis.  This Notice seeks to have the Florida Supreme Court invoke its discretionary jurisdiction review and reverse the 3rd DCA’s decision.

It is still strongly recommended that judges and lawyers who may appear before them would be well advised not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection, disclose it to all parties, and (the judge may) possibly provide an option to recuse if the party believes that it could be potentially prejudiced.

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.

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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Florida Appeals Court finds that Miami-Dade Circuit Judge’s Facebook “friendship” with lawyer and former judge is not disqualifying

Hello everyone and welcome to this Ethics Alert which will discuss the recent (August 23, 2017) Florida Third District Court of Appeal (DCA) opinion declining to disqualify a Miami-Dade County Circuit Judge who was “friends” with opposing counsel on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 3D17-1421, Lower Tribunal No.: 2015-015825-CA-43 (Florida Third District Court of Appeal) and the opinion is here: http://www.3dca.flcourts.org/Opinions/3D17-1421.pdf 

In a somewhat surprising decision, the Florida Third District Court of Appeal found that Miami-Dade Circuit Judge Beatrice Butchko is not required to recuse herself from a case in which she was a Facebook” friend” of the lawyer for one of the parties (Israel Reyes).  The lawyer was also a former judge with whom she worked before he stepped down as a judge.  This decision diverges from a Fourth District Court of Appeal opinion as well as a 2009 opinion of the Florida Judicial Ethics Advisory Committee (JEAC)- JEAC Op. 2009-20 (Nov.17, 2009).  The Third DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

As I previously reported in my August 4, 2017 Ethics Alert, the Herssein Law Group moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which Reyes represents a non-party USAA employee in the matter, who was identified as a potential witness/party.

The law firm argued that the judge could not be impartial in the case and cited the 2009 JEAC opinion which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the Fourth District Court of Appeal relied on the JEAC opinion in disqualifying disqualified a judge from a case for being Facebook friends with the prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The Third DCA opinion further states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

Bottom line:  This DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th DCA opinion and acknowledges that it is in conflict with that DCA opinion; however, it does provide the rationale that each case should be decided  by examining the facts and the relationship.  This would seem to open up potential confusion and potential disqualification motions that would have to be decided on a case by case basis.    It is still recommended that judges (and lawyers who may appear before them) would be well advised not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection and disclose it to all parties and provide an option to recuse if the party believes that it would potentially be prejudiced.

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.

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

Leave a comment

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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