Fla. Bar v. Schwartz
| Decision Date | 17 February 2022 |
| Docket Number | SC17-1391 |
| Citation | 334 So.3d 298 |
| Parties | The FLORIDA BAR, Complainant, v. Jonathan Stephen SCHWARTZ, Respondent. |
| Court | Florida Supreme Court |
Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, and Jennifer R. Falcone, Bar Counsel, The Florida Bar, Miami, Florida; and Chris W. Altenbernd of Banker Lopez Gassler, P.A., Tampa, Florida, for Complainant
Benedict P. Kuehne, Michael T. Davis, and Johan D. Dos Santos of Kuehne Davis Law, P.A., Miami, Florida, for Respondent
We have for review a referee's report recommending that Respondent, Jonathan Stephen Schwartz, receive a ninety-day suspension following our disapproval of a prior referee's report finding that Schwartz did not violate the Rules Regulating the Florida Bar (Bar Rules). We have jurisdiction.1 The Florida Bar (Bar) sought review of the referee's report, seeking a three-year suspension. Having reviewed both the record and our prior case law, we agree with the Bar that a more severe sanction is warranted, particularly in light of Schwartz's prior disciplinary record. Therefore, we disapprove the referee's report recommending a nonrehabilitative sanction and instead impose a three-year suspension.
Schwartz, a criminal defense attorney who was admitted to the Bar in 1986, became the subject of the instant Bar proceedings based upon his use of two defense exhibits during a pretrial deposition. While representing the defendant in State v. Virgil Woodson , Circuit Case No. 13-2013-CF-012946-0001-XX (Miami-Dade County, Florida), Schwartz created the exhibits, two black and white photocopies of a police lineup. In each, Schwartz altered the defendant's picture. In one exhibit, he replaced the defendant's face with that of an individual whom witnesses other than the robbery victim had identified as the perpetrator. In the other exhibit, Schwartz changed the defendant's hairstyle. However, the altered photocopies used at the deposition retained the victim's identification of the defendant, including both her circle around what had been the defendant's picture and her signature at the bottom of the lineup, as well as a police officer's signature. In a complaint filed with the Court on July 27, 2017, the Bar alleged that Schwartz's use of the exhibits, without disclosing that the photo lineups had been altered, violated Bar Rules 3-4.3 (Misconduct and Minor Misconduct) and 4-8.4(c) (). We referred the matter to a referee for further proceedings.
On review of a referee report recommending that Schwartz not be found guilty of any ethics violations, the Court, in an opinion dated November 7, 2019, disapproved the referee's findings of fact and recommendation. Fla. Bar v. Schwartz , 284 So. 3d 393, 394 (Fla. 2019). First, we held that the referee "improperly focused upon Schwartz's asserted motive" to provide constitutionally effective assistance of counsel. Id. at 396. Rather, his subjective motive was not determinative. Moreover, we concluded that it was an "undisputed fact that Schwartz knowingly and deliberately created the defense exhibits by altering photocopies of the police lineups and showing them to the victim at the deposition" and that the exhibits were "deceptive on their face." Id. Thus, Schwartz's intent to create what were deceptive exhibits in themselves led to the inescapable conclusion that he violated Bar Rules 3-4.3 and 4-8.4(c) as alleged. Based upon our disposition upon the referee's report on the issue of guilt, we remanded the case "to a newly appointed referee for a hearing limited to a determination of recommended discipline." Id. at 398.
Following the appointment of a new referee and a sanctions hearing, the successor referee ultimately recommended that Schwartz receive a ninety-day suspension, to be followed by a one-year term of probation. The Bar sought review of the referee's recommendation, arguing that a three-year, rehabilitative suspension is warranted. For the reasons discussed below, we disapprove the referee's report and instead impose a three-year suspension.
The sanction hearing was held on August 21, 2020.2 In addition to testifying himself, Schwartz presented the testimony of family, friends, current employees, a former client, a judicial officer, and a mental health professional. Schwartz also presented numerous letters authored by friends and colleagues. The Bar did not proffer any evidence, instead arguing case law in support of the request that the referee recommend a three-year suspension.
Having considered testimony and argument at the sanction hearing, the successor referee subsequently filed her report on October 16, 2020. In determining the recommended sanction, the referee considered Schwartz's personal history, prior discipline, and the existence of aggravating and mitigating factors pursuant to the Florida Standards for Imposing Lawyer Sanctions (Standards). The referee also considered existing case law.
As found by the referee, Schwartz's prior disciplinary history is as follows.
In an order dated May 29, 2012, in case number SC11-2143, the Court suspended Schwartz for ninety days based upon a consent judgment. Florida Bar v. Schwartz , 91 So. 3d 134 (Fla. 2012) (table). Schwartz admitted violating Bar Rules 4-1.8(a) (), 4-3.3(a)(1) (Candor Toward the Tribunal; False Evidence; Duty to Disclose), 4-4.1(a) (), 4-8.4(a) (), 4-8.4(b) (), and 4-8.4(c) (). According to the "Report of the Referee Accepting Consent Judgment" approved by the Court in that case, Schwartz twice notarized a Uniform Child Custody Jurisdiction Act Affidavit and signed "JS for E. Ocampo" where his client, who was outside of the United States and unavailable to sign the affidavit, was required to sign. Schwartz then filed each affidavit with the defective notarizations, thereby making knowing misrepresentations to the court.
Previously, on June 20, 2002, the Court approved a consent judgment and imposed a public reprimand in case number SC02-787. Schwartz violated Bar Rules 4-3.1 (), 4-3.3(a)(1), 4-4.1(a), 4-4.4 (), 4-5.6 (Restrictions on right to practice), 4-8.4(a), and 4-8.4(c).
And, on April 10, 1997, the Court issued its order in case number SC60-90204, approving a consent judgment and imposing a public reprimand for violations of Bar Rules 4-3.3(a), 4-3.4(c) (Fairness of Opposing Party and Counsel), 4-8.4(c), and 4-8.4(d) ().
In addition, Schwartz received an admonishment for minor misconduct by the Eleventh Judicial Circuit Grievance Committee "B" on March 29, 1995, in The Florida Bar File No. 1994-71,026(11B), for violation of Bar Rule 4-8.4(d).3
With respect to mitigating factors under Standard 3.3, the referee found two, namely (b)(5) ("full and free disclosure to the bar or cooperative attitude toward the proceedings"), and (b)(7) ("character or reputation"). Further, the referee found the following two non-Standard matters as mitigating: "The length of time this disciplinary case has been pending has extracted a considerable toll on Respondent [as] [h]e indicated that he has had difficulties and has spent sleepless nights, as a result [of] the case," and "Respondent testified that he is trying to limit the number of cases and kind of cases as well attempting [to] solve problems before they arise." Turning to aggravating factors under Standard 3.2, the referee found three factors, namely (b)(1) ("prior disciplinary offenses"), (b)(3) ("a pattern of misconduct"), and (b)(9) ("substantial experience in the practice of law").
Finally, while acknowledging that this Court has imposed harsher sanctions more recently than those previously imposed, the referee distinguished the cases relied upon by the Bar and cited the following cases in support of a nonrehabilitative suspension. See Fla. Bar v. MacNamara , 132 So. 3d 165, 171 (Fla. 2013) (); Fla. Bar v. Cocalis , 959 So. 2d 163 (Fla. 2007) (); Fla. Bar v. Committe , 916 So. 2d 741 (Fla. 2005) (). As discussed in our analysis below, we disapprove the referee's recommended ninety-day nonrehabilitative suspension, and instead determine that a three-year suspension is appropriate under the facts of the case and existing case law.
In imposing a sanction in an attorney discipline case, the Court considers the following factors: "(a) duties violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; [and] (d) the existence of aggravating and mitigating circumstances." Fla. Stds. Imposing Law. Sancs. 1.1. As we have often explained, in reviewing a referee's recommended discipline, the Court's scope of review is broader than that afforded to the referee's findings of fact because, ultimately, it is ...
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