Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court opinion suspending a lawyer for 91 days for sending texts to his client and coaching the client during a deposition and making misrepresentations about it to the opposing counsel and judge. The case is The Florida Bar v. Derek Vashon James, No. SC-128 (11/18/21) and the opinion is here: https://www.floridasupremecourt.org/content/download/806044/opinion/sc20-128.pdf
According to the opinion, the lawyer represented an employer in a workers’ compensation case. On July 31, 2018, the lawyer participated on behalf of the employer at the telephonic deposition of the adjuster along with the employee’s lawyer. All of the participants appeared from different locations.
The lawyer texted instructions to the adjuster that included coaching and directions on how to respond to the employee’s lawyer’s questions. The employee’s lawyer heard typing over the telephone and asked the lawyer if he was coaching the adjuster. The lawyer denied that he was texting the adjuster and stated that he was texting his daughter.
After a break in the deposition, the lawyer continued to text instructions to the adjuster; however, he inadvertently sent the texts to the employee’s lawyer even though he has asserted that he would stop. When the employee’s lawyer saw the texts, she stopped the deposition and later asked the judge of compensation claims to order the lawyer to produce all texts that he sent during the deposition.
The lawyer produced two pages of texts between himself and the adjuster; however, there were no texts to or from his daughter or wife. The lawyer blamed this on his lack of understanding of technology inabilities and also claimed the texts were sent during the break in the deposition and were protected by attorney/client privilege.
During the Florida Bar disciplinary hearing, the lawyer told the referee that workers’ compensation proceedings were informal and that he felt obligated to help the adjuster. The referee found the texts were sent during the deposition and that the texts were dishonest. The referee also found the lawyer “failed to be transparent and forthright with the judge” by claiming that he texted only his wife and daughter during the deposition and that the texts to the adjuster came only during the break.
After the Bar proceedings were concluded, the referee recommended that the lawyer be found guilty of violating Bar Rules 3-4.2 (misconduct and minor misconduct) and 4-3.4(a) (obstructing a party’s access to evidence or otherwise altering, destroying, or concealing a document). The referee further recommended that the lawyer be found not guilty of violating Rule 4-8.4(d) (engaging in conduct that is prejudicial to the administration of justice) and be suspended for 30 days.
The court’s opinion noted the underlying facts were not in dispute and affirmed the referee’s factual findings. The opinion also found that the lawyer violated Rule 4-8.4(d). “This Court has determined that dishonesty in connection with the practice of law is prejudicial to the administration of justice.” “The lawyer’s) dishonesty is clear from the record, and we find him guilty of violating Bar Rule 4-8.4(d).”
The court’s opinion concluded:
“James obstructed opposing counsel’s access to evidence when he secretly coached Gray while she was being questioned, telling her how to answer Villaverde’s questions and directing her to avoid providing certain information. This conduct continued even after he assured Villaverde that he would stop texting during the deposition. Thereafter, he repeatedly misrepresented to Villaverde that he did not send text messages to Gray during the deposition. Particularly egregious was his failure to be forthright with the Judge of Compensation Claims about sending the text messages to Gray and about when he sent them. We find that James’s behavior warrants a ninety-one-day suspension.”
In a separate dissenting opinion, Justice Alan Lawson, joined by Justice Jamie Grosshans, agreed with the court’s finding of guilt but would have imposed a shorter suspension than the 91 days, which requires a petition for reinstatement. The dissent states:
“(T)he referee found that James’s cooperation, full and free disclosure, lack of a prior record, and character testimony from two witnesses were mitigating factors sufficient to justify a nonrehabilitative sanction. The referee’s recommendation was largely based on credibility determinations and an assessment of James’s demeanor that the referee was in the best position to make, and the referee’s recommendation is consistent with our precedent.
Accordingly, I respectfully dissent from that portion of the opinion that imposes a ninety-one-day rehabilitative suspension.”
Bottom line: This is another example of the Florida Supreme Court increasing the discipline recommended by the referee, who receives the evidence and makes factual and credibility determinations and decisions.
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
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