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Supreme Court suspends Judge Decker for six months

Managing Editor Regular News

Supreme Court suspends Judge Decker for six months

Mark D. Killian

Managing Editor

The Supreme Court has suspended Third Circuit Judge Andrew J. Decker III without pay for six months stemming from his actions as an attorney before being elected to the bench in 2012 and violations of judicial canons governing campaign activities.

Acting March 2 in Case No. SC14-383, the court also ordered Decker to pay the costs of the disciplinary proceedings, and appear before the court on May 2 at 9 a.m. for the administration of a public reprimand. The court’s six-month suspension without pay exceeded the Judicial Qualification Commission’s recommended 90-day suspension.

The court’s action came 16 days after the Florida House Public Integrity and Ethics Committee heard a report on the case against Judge Decker, who had been subject of a JQC inquiry since 2013. Committee Chair Rep. Larry Metz, R-Groveland, said the committee was exercising its oversight of another branch, including asking why the Supreme Court has not acted more than a year after it received responses to its last show cause order.

In March 2015, the Supreme Court entered a show cause order why it should not approve the JQCs findings and recommended discipline for Decker of a 90-day suspension without pay and a public reprimand.

After the responses were filed in May, the court entered another show cause order in November 2015, asking why Decker’s discipline should not be more severe, including perhaps removal from office.

In its 46-page order, the court found Decker violated of the Rules of Professional Conduct as a practicing attorney, and further violated the Code of Judicial Conduct when then-attorney Decker was campaigning for the judgeship, including:

• Falsely stating at a televised debate that he had never been accused of a conflict of interest and not correcting that false statement during the debate or publicly thereafter.

• Publicly stating he was affiliated with the Republican Party at a Lafayette County Republican Executive Committee candidates’ forum.

• Violating the Rules of Professional Conduct in failing to advise opposing counsel that he was currently representing the presiding judge in other litigation.

• Violating numerous Rules of Professional Conduct concerning conflict of interest in common representation, including failing to counsel and advise three clients of the risks and advantages of common representation, failing to withdraw when conflicts were apparent, and engaging in representation of one client to the detriment of other current or former clients.

• Violating the Rules of Professional Conduct requiring candor to a tribunal by incorrectly stating the status of his representation.

The court rejected one charge brought by the JQC, alleging that through a complex series of events in a foreclosure case, Decker became involved in secret meetings with some, but not all, parties, violating a Bar rule which prohibits communication with a person represented by other counsel without consent of that counsel.

“We conclude that one of the most serious violations found by the Hearing Panel — Charge 8 relating to prohibited communication with a represented party — is not supported by the evidence,” the court said, adding Decker had no obligation to confirm that a party was no longer represented by counsel and that that party’s status as an unrepresented party is not dependent upon his former counsel’s compliance with the requirements of Florida Rule of Judicial Administration 2.505(f)(1) regarding withdrawal of an attorney.

“And a lawyer like then-attorney Decker should not be required to further investigate the status of the representation once the party has stated unequivocally that he is not represented by counsel,” the court said.

The justices said Decker “exhibited a pattern of behavior that evidences a lack of ethical judgment, along with a lack of understanding and concomitant contrition about the harm caused to his clients and to the public’s trust in the legal system,” and that they were also concerned that Decker had been reprimanded by The Florida Bar in the past.

However, the court said, no evidence suggests that any of Judge Decker’s misconduct caused “significant harm” to a client or another party, and while significant harm is not necessary to establish an ethical violation, the absence of such harm is a relevant consideration in determining the appropriate sanction to be imposed.

“Although the series of acts by Judge Decker involving misconduct requires the imposition of a significant sanction, we have concluded that it does not merit removal from office,” the court said, noting that while the conduct is unquestionably “unbecoming a member of the judiciary” it does not demonstrate “a present unfitness” to hold office.

“For all these reasons, and based on the seriousness and cumulative nature of the numerous violations proven, we impose on Judge Decker a six-month suspension, public reprimand, and payment of costs of the proceedings.”

Chief Justice Jorge Labarga and Justices Peggy Quince, Charles Canady, Ricky Polston, and Alan Lawson concurred. Justice Barbara Pariente concurred in the result with an opinion, in which Justice Fred Lewis concurred.

Justice Pariente said while she agreed with the sanctions the majority imposed, “I cannot agree with the majority that consolidated Charge 8 found by the JQC, relating to prohibited communication with a represented party, ‘is not supported by the evidence.’”

Rep. Metz updated the House Public Integrity and Ethics Committee March 9 on the Decker case, noting the release of the court’s “very detailed opinion” that imposed a harsher sentence than the JQC originally recommended.

“I’m glad to see that the Supreme Court has finished its business on that,” Metz said. “I just wanted you to know that occurred shortly after our hearing on that matter.”

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