Fla. Bar v. Williams-Yulee

• Decision Date: 01 May 2014
• Docket Number: No. SC11–265.,SC11–265.
• Parties: THE FLORIDA BAR, Complainant, v. Lanell WILLIAMS–YULEE, Respondent.
• Court: Florida Supreme Court

138 So.3d 379

THE FLORIDA BAR, Complainant,

v.Lanell WILLIAMS–YULEE, Respondent.

No. SC11–265.

Supreme Court of Florida.

May 1, 2014.

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, FL; and Jodi Anderson Thompson, Bar Counsel, The Florida Bar, Tampa, FL, for Complainant.

Ernest Jay Myers, Orlando, FL, for Respondent.

Honorable Roberto Arias, Chair, Judicial Ethics Advisory Committee, Jacksonville, FL; and James Calvin Goodlett, Staff Counsel, Judicial Ethics Advisory Committee, Tallahassee, FL, Responding with comments.

PER CURIAM.

We have for review a referee's report recommending that the Respondent, Lanell Williams–Yulee, be found guilty of professional misconduct. The referee recommended that the Respondent receive a public reprimand as a sanction. We have jurisdiction. Seeart. V, § 15, Fla. Const.

For the reasons explained below, we approve the referee's findings of fact and recommendation that the Respondent be found guilty of violating Rule Regulating the Florida Bar 4–8.2(b) (Judicial and Legal Officials, Candidates for Judicial Office; Code of Judicial Conduct Applies) for personally soliciting campaign contributions in violation of Canon 7C(1) of the Florida Code of Judicial Conduct. We therefore reject the Respondent's constitutional challenge to the ban imposed by Canon 7C(1) on a judicial candidate's personal solicitation of campaign contributions, and hold that the Canon is constitutional because it promotes the State's compelling interests in preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests.

We disapprove the referee's findings of fact and recommendation of guilt regarding the Respondent's alleged violation of rules 3–4.3 (Misconduct and minor misconduct) and 4–8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another). We approve the referee's recommended sanction of a public reprimand.

FACTS

The Florida Bar filed a complaint against the Respondent, alleging that she engaged in misconduct in violation of the Rules Regulating the Florida Bar. A referee was appointed, but the proceedings were stayed pending this Court's disposition of Inquiry Concerning a Judge, N. James Turner, No. SC09–1182, which involved the same First Amendment constitutional challenge to Canon 7C(1) that the Respondent raised before the referee and has now raised on review. Ultimately, however, this Court declined to decide the First Amendment issue in that case. See In re Turner, 76 So.3d 898, 901 (Fla.2011).

Following this Court's resolution of Turner, the stay was lifted and the referee heard the Respondent's motion challenging the sufficiency of the complaint on the dual bases of delay and the constitutionality of Canon 7C(1). The referee denied the Respondent's motion. After holding hearings, the referee submitted a report to the Court, making the following factual findings and recommendations.

In September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter, in which she personally solicited campaign contributions. The Respondent admitted to having reviewed and approved the letter.

At the time she signed the letter, no other candidate for the judgeship had been announced. In addition to soliciting campaign contributions, the letter stated that the Respondent served the “community as Public Defender,” though her correct title was “assistant public defender.” The letter also included a link to the Respondent's website, which correctly referenced her work history as an assistant public defender.

The referee found “that the term public defender is widely used to refer to the specific attorney assigned to a case and not necessarily the elected public defender.” A newspaper article published on November 3, 2009, included the Respondent's representation to a reporter that there was no incumbent in the judicial race for which the Respondent was running.

Before the referee, The Florida Bar alleged that the Respondent's campaign manager incorrectly posted on the Respondent's campaign website that the Respondent was “judge elect,” even though the Respondent had never been a judge and had not been elected. The referee rejected the Bar's argument, finding “that the Respondent took reasonable action in directing the campaign manager to obtain her approval prior to making any changes to her website.” The referee also found that the Respondent “did not order, have knowledge of, or ratify the campaign manager's actions” regarding the posting of “judge elect.”

Based upon the foregoing facts, the referee recommended that the Respondent be found guilty of violating Rules Regulating the Florida Bar 3–4.3 (Misconduct and minor misconduct), 4–8.2(b) (Judicial and Legal Officials, Candidates for Judicial Office; Code of Judicial Conduct Applies), and 4–8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another). The referee recommended that the Respondent be found not guilty of violating rule 4–5.3(b) (Responsibilities Regarding Nonlawyer Assistants; Supervisory Responsibility), which the Bar alleged the Respondent had violated based on the campaign manager's inaccurate posting on the website.

Regarding the solicitation of campaign funds in her letter signed September 4, 2009, the referee rejected the Respondent's testimony that she understood Canon 7C(1) of the Code of Judicial Conduct would apply only if there were another candidate in the judicial race. Canon 7C(1) provides in pertinent part as follows: “A candidate ... for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds....” In finding that the Respondent violated Canon 7C(1), the referee stated that “[i]t is clear that the use of ‘election between competing candidates' is used to describe the type of judicial office where the prohibition would apply.”

In addressing the Respondent's statement to the newspaper reporter, the referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent's misrepresentation was published in a newspaper article on November 3, 2009.

With respect to discipline, the referee considered the Respondent's personal history, finding that the Respondent was admitted to The Florida Bar in 1991 and does not have any prior disciplinary history. Additionally, the referee found no aggravating factors and found the following mitigating factors: absence of a prior disciplinary record; absence of a dishonest or selfish motive; timely good faith effort to make restitution or to rectify consequences of misconduct; and full and free disclosure to disciplinary board or cooperative attitude toward proceedings. The referee consequently recommended that the Respondent receive a public reprimand and awarded costs to The Florida Bar in the amount of $1,860.30.

ANALYSIS

The Respondent seeks review of the referee's factual finding that she made a misrepresentation to a reporter; the referee's recommendations of guilt as to rules 3–4.3, 4–8.2(b), and 4–8.4(a); and the referee's recommended discipline, which calls for a public reprimand and payment of costs to The Florida Bar.

This Court's standard of review for evaluating a referee's factual findings is limited, and if a referee's findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. See Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000). The Court has repeatedly stated that the referee's factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557–58 (Fla.2005).

Violation of Rule 4–8.2(b)

The Respondent first challenges the referee's recommendation that she be found guilty of violating rule 4–8.2(b) (Judicial and Legal Officials, Candidates for Judicial Office; Code of Judicial Conduct Applies). With respect to this rule violation, the Respondent does not challenge the referee's factual findings. Instead, the Respondent admits that she signed the letter soliciting campaign funds, but attempts to justify her misconduct by explaining that she signed the letter while under the impression that Canon 7C(1) did not apply to her since, at the time she signed the letter, there was no other candidate in the race.

The Respondent now understands that the prohibition against solicitation by a judicial candidate applied to her. Nevertheless, even though the Respondent admits that Canon 7C(1) applied to her, she asserts that the referee's recommendation of guilt is incorrect because Canon 7C(1) is unconstitutional in that it limits a judicial candidate's right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.

Canon 7C(1) provides in pertinent part as follows:

A candidate ... for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.

On its face, Canon 7C(1)...