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Lawyer suspended for texting client during a remote deposition

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Judge with GavelA lawyer who misled opposing counsel and a judge about his attempts to coach a witness during a deposition engaged in conduct that is “prejudicial to the administration of justice,” according to the Florida Supreme Court.

The court, in a November 18 ruling, agreed with The Florida Bar on that issue, overturning a referee’s recommendation, and increasing the lawyer’s sanction from a 30- to a 91-day suspension.

The lawyer represented an employer in a workers’ compensation case. The grievance case stemmed from a deposition where the lawyer, an adjuster for the employer, and the worker’s attorney all appeared by phone from different locations. The lawyer texted instructions to the adjuster that included coaching and directions on how to respond to the opposing attorney’s questions.

The opposing attorney heard typing over the phone and asked the lawyer if he was instructing the witness. The lawyer denied doing so, saying he was texting his daughter, but he agreed to stop any texting.

After a break in the deposition, the lawyer continued to text instructions, but accidentally sent them to the opposing attorney. When the opposing attorney noticed the texts, she stopped the deposition and eventually asked the judge of compensation claims to order the lawyer to produce all texts sent during the meeting.

The lawyer produced two pages of texts between him and the adjuster, but no texts to or from his daughter. The lawyer blamed that on his technology inabilities. The lawyer also claimed the texts were sent during the break in the deposition and hence were protected by attorney/client privilege.

During his disciplinary hearing, the lawyer said workers’ compensation proceedings were informal, and he felt compelled to help his witness.

The referee in the case 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 making it appear he texted only his wife and daughter during the deposition and the texts to the adjuster came only during the break.

The referee found the lawyer guilty of violating Bar Rules 3-4.2 (Misconduct and Minor Misconduct) and 4-3.4(a) for obstructing another party’s access to evidence or otherwise altering, destroying, or concealing a document. However, the referee found the lawyer not guilty of violating Rule 4-8.4(d), which prevents attorneys from engaging in conduct “prejudicial to the administration of justice.”

The court noted the facts of the case were not in dispute and agreed with the referee’s factual findings. The only disagreement was the Bar’s contention that the lawyer violated Rule 4-8.4(d), and the court agreed with the Bar.

“This Court has determined that dishonesty in connection with the practice of law is prejudicial to the administration of justice,” the court said in its per curiam opinion. “[The lawyer’s] dishonesty is clear from the record, and we find him guilty of violating Bar Rule 4-8.4(d).”

It cited the lawyer’s false claim he was texting his daughter while he was texting the adjuster, that he had stopped texting when he had not, and that he was telling the adjuster how to answer questions was dishonest.

The court agreed with the referee that suspension was warranted, but said a more severe sanction was required.

“[The lawyer] engaged in conduct aimed at defeating the opposing party’s lawful attempts to obtain evidence, undermining the adversarial process, and as a result, the trial court’s intervention was required. He then made misrepresentations to cover up his misconduct…. Particularly egregious was his failure to be forthright with the Judge of Compensation Claims about sending the text messages to [the adjuster] and about when he sent them,” the court said. “[W]e disagree with the referee’s conclusion that [the lawyer’s] conduct was not sufficiently egregious to warrant a more severe sanction.”

In a separate opinion, Justice Alan Lawson, joined by Justice Jamie Grosshans, agreed with the court’s finding of guilt. But Lawson said he would have imposed a shorter suspension that would not require the lawyer to petition for reinstatement and to show proof of rehabilitation, which is required on suspensions of 91 days or longer.

He cited that “the referee found that lawyer’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.”

Lawson also said the referee was in the best position to evaluate the lawyer’s demeanor and credibility, and the court should not lightly overrule that.

The court acted in Case No. SC20-128.

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