Fla. Bar v. James
| Decision Date | 18 November 2021 |
| Docket Number | No. SC20-128,SC20-128 |
| Citation | 329 So.3d 108 |
| Parties | The FLORIDA BAR, Complainant, v. Derek Vashon JAMES, Respondent. |
| Court | Florida Supreme Court |
Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, and Daniel James Quinn, Bar Counsel, The Florida Bar, Orlando, Florida; and M. Hope Keating and Barry Richard of Greenberg Traurig, P.A., Tallahassee, Florida, for Complainant
Barry Rigby of Law Offices of Barry Rigby, P.A., Winter Park, Florida, for Respondent
We have for review a referee's report recommending that Respondent, Derek Vashon James, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules), and that he be suspended from the practice of law for thirty days as a sanction for his misconduct. The Florida Bar (Bar) filed a notice of intent to seek review of the referee's report, challenging the referee's recommendation that James be found not guilty of violating Bar Rule 4-8.4(d), as well as the referee's recommended sanction. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed below, we approve the referee's findings of fact and recommendations as to guilt, except for the recommendation that James be found not guilty of violating Bar Rule 4-8.4(d), which we disapprove, and find James guilty of violating the rule. We also disapprove the referee's recommended discipline, and instead, we suspend James from the practice of law for ninety-one days.
On January 28, 2020, the Bar filed a complaint against James, alleging that he engaged in misconduct by coaching a witness during a deposition in a contested worker's compensation matter and making misrepresentations regarding his misconduct. The Bar's complaint was referred to a referee, who held a hearing on both guilt and discipline and submitted a report with the following findings and recommendations.
James represented the employer in a worker's compensation case. On July 31, 2018, Renee Gray, the adjuster who worked for the employer, was deposed via telephone. Gray, James, and the claimant's counsel, Toni Villaverde, attended the deposition via telephone, from different locations. Because the deposition was not conducted by video, the court reporter refused to swear Gray in as a witness, making her testimony unsworn. While the deposition was in progress and Villaverde was questioning Gray, James sent text messages to Gray regarding her testimony. The texts included coaching and specific directions on how to respond to Villaverde's questions.
The following messages were exchanged between Gray and James during Villaverde's questioning of Gray:
Villaverde could hear typing sounds and asked Gray and James if they were engaging in texting during the deposition. James denied texting Gray and stated he was only receiving a text from his daughter. Villaverde asked James to stop texting and put his phone away, and James agreed. James misrepresented to Villaverde that he had concluded the text messaging when in fact he had not. After a break, and after Villaverde resumed questioning Gray, James inadvertently sent the following text messages intended for Gray to Villaverde:
Once Villaverde noticed the texts, she stopped the deposition. She later filed a motion for production and in-camera inspection of all the texts sent during the deposition. After the Judge of Compensation Claims granted the motion, James produced two pages of text messages but never produced any texts involving his daughter, despite being ordered to do so by the judge, and despite his assurances to Villaverde during the deposition that the typing sounds she heard involved a text received from his daughter. The judge found that the text messages were sent during the deposition, not during a break in the questioning, and that they were not protected by attorney-client privilege, contrary to James's claims. The parties conducted a second deposition of the witness on February 19, 2019.
During the disciplinary proceedings, James testified that he was unable to retrieve the texts from his daughter due to his own technological limitations. He explained that worker's compensation proceedings are informal, and he felt compelled to aid his witness during the deposition because Villaverde was constantly talking over Gray's answers or interrupting with speaking objections, and he felt Gray was being mistreated. The referee found that James's texts to Gray while she was being questioned, telling her what to say, how to answer, to avoid providing certain information, to remember a deposition but not discuss certain checks, and to not give an absolute answer were dishonest.
Furthermore, the record shows that after the deposition ended, and in the days following the deposition, James tried to convince Villaverde that he sent the texts to Gray during the break, not during the questioning. During a hearing on Villaverde's motion for production and in-camera inspection, James failed to be transparent and forthright with the judge regarding his texts to Gray. He made it appear that he only texted his wife and daughter during the deposition and that he sent the text messages to Gray during the break in the deposition.
The referee recommends that James be found guilty of violating Bar Rules: 3-4.3 (Misconduct and Minor Misconduct) and 4-3.4(a) (). However, the referee recommends that James be found not guilty of violating rule 4-8.4(d) () as well as others. The referee found the following aggravating factors were present: (1) dishonest or selfish motive; (2) refusal to acknowledge the wrongful nature of the conduct; and (3) substantial experience in the practice of law. In mitigation, the referee found (1) absence of a prior disciplinary record; (2) full and free disclosure to the Bar or cooperative attitude toward the proceedings; and (3) good character or reputation.
The referee recommends that James be suspended from the practice of law for thirty days and that he be assessed the Bar's costs. The Bar seeks review of the referee's recommendation that James be found not guilty of violating Bar Rule 4-8.4(d), as well as the recommended sanction.
To begin, the referee's findings of fact are neither in dispute nor lacking in evidentiary support. We therefore approve them without further comment. The Bar challenges the referee's recommendation of no guilt as to Bar Rule 4-8.4(d), contending that the referee's own findings, as well as the record, support a contrary conclusion. The Court must consider whether the referee's recommendation that James be found not guilty of violating Bar Rule 4-8.4(d) is supported. This Court has repeatedly stated that the referee's factual findings must be sufficient under the applicable rules to support the recommendations regarding guilt. See Fla. Bar v. Shoureas , 913 So. 2d 554, 557-58 (Fla. 2005) ; Fla. Bar v. Spear , 887 So. 2d 1242, 1245 (Fla. 2004). The party challenging the referee's finding of fact and recommendations as to guilt has the burden to demonstrate "that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions." Fla. Bar v. Germain , 957 So. 2d 613, 620 (Fla. 2007).
Bar Rule 4-8.4(d) states, "A lawyer shall not ... engage in conduct in connection with the practice of law that is prejudicial to the administration of justice ...." R. Regulating Fla. Bar 4-8.4(d). This Court has determined that dishonesty in connection with the practice of law is prejudicial to the administration of justice. See Fla. Bar v. Feinberg , 760 So. 2d 933, 938 (Fla. 2000). Here, the referee specifically found that James's response that he was just responding to his daughter when in fact texts were being sent to Gray was misleading and a matter contrary to honesty. He also found that James misrepresented to Villaverde that he had concluded the text messaging when in fact he had not. The referee further found that James's texts to Gray while she was being questioned, telling her what to say, how to answer, to avoid providing certain information, to remember a deposition but not discuss certain checks, and to not give an absolute answer were dishonest. James's dishonesty is clear from the record, and we find him guilty of violating Bar Rule 4-8.4(d).
We now turn to the referee's recommended discipline, a thirty-day suspension. In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because, ultimately, it is this Court's responsibility to order the appropriate sanction. See Fla. Bar v. Picon , 205 So. 3d 759, 765 (Fla. 2016) ; Fla. Bar v. Anderson , 538 So. 2d 852, 854 (Fla. 1989) ; see also art. V, § 15, Fla. Const. At the same time, this Court will not second-guess the referee's recommended...
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