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Court says repeated conduct merits more severe discipline

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Legal DisciplineThat a lawyer has been disciplined for similar conduct in another grievance case does not justify lessening the sanctions in a second case that occurred around the same time, according to the Supreme Court.

Instead, the court said in a December 9 opinion, such a pattern of misconduct justifies a more severe punishment in the second case.

The attorney had been suspended by the court for one year in 2018 for disparaging without basis opposing counsel; alleging bias and shortcomings of the legal system; implying that a Third District Court of Appeal judge favored his opposing counsel; allowing his client to make false statements that constituted a “fraud on the court;” and, when he and his client were financially sanctioned, placing his interests over those of the client.

Conduct in that case occurred between 2012 and 2015. In the second case, the conduct occurred between 2011 and 2018 and was referred to the Bar by a federal judge, who in 2018 entered a 42-page order detailing the lawyer’s misconduct in that case. The Bar did not file the actual grievance until 2019, more than a year after the court issued its opinion in the first case.

The referee in the second case found the lawyer accused opposing counsel and the courts of racial and other bias without cause, misused a fax he was accidentally sent by an opposing party, and repeatedly committed procedural rule violations that caused unreasonable delays in the case.

The conduct violated seven different Bar rules, the referee ruled. He recommended a 90-day suspension, finding that most of the conduct was similar to what had been sanctioned in the first case, with the only new feature being misuse of the mistakenly sent fax.

The Supreme Court, agreeing with the Bar position, said the referee wrongly rejected as aggravating factors that the lawyer showed repeated, similar misconduct; had prior discipline; and that the lawyer had substantial experience in the law.

The court said the prior case was separate, and the lawyer had not been disciplined for conduct in the second case.

“[I]t does not matter that some of the misconduct found in the earlier case — specifically, making unfounded allegations of bias and undermining confidence in the legal system — is similar in kind to some of the misconduct found here. Nor does it matter that there is some overlap in the time periods covered by the two cases. The fact is that the one-year suspension we imposed in [the lawyer’s] earlier disciplinary proceeding did not in any way account for the acts of misconduct that the referee found in this case,” the court said.

“….We think that the referee got this case exactly backward. The referee discounted the recommended sanction based on his clearly erroneous conclusion that we had already disciplined [the lawyer] for the misconduct found in this case. Instead, the referee should have found that [the lawyer’s] pattern of engaging in such serious and damaging misbehavior warranted an especially severe sanction.”

The court cited its opinion in Fla. Bar v. Bern, 425 So. 2d 526, 528 (Fla. 1982) that, “The Court deals more harshly with cumulative misconduct than it does with isolated misconduct.”

For those reasons, the court said the Bar’s proposed two-year suspension was appropriate rather than the referee’s suggested 90-day suspension.

The court acted in Case No. SC19-2070.

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