The Florida Bar v. Feinberg, SC93165.

• Decision Date: 01 June 2000
• Docket Number: No. SC93165.,SC93165.
• Citation: 760 So.2d 933
• Parties: THE FLORIDA BAR, Complainant, v. Daniel Peter FEINBERG, Respondent.
• Court: Florida Supreme Court

760 So.2d 933

THE FLORIDA BAR, Complainant, v. Daniel Peter FEINBERG, Respondent.

No. SC93165.

Supreme Court of Florida.

June 1, 2000.

John F. Harkness, Jr., Executive Director, and John A. Boggs, Staff Counsel, Tallahassee, Florida, and Stephen C. Whalen, Assistant Staff Counsel, Tampa, Florida, for Complainant.

Arthur I. Jacobs of Jacobs & Associates, P.A., Fernandina Beach, Florida, for Respondent.

PER CURIAM.

The Florida Bar petitions this Court to review a referee's report recommending that Daniel Peter Feinberg be publicly reprimanded for violating certain Rules Regulating The Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

FACTS

The Bar filed a complaint against Feinberg, alleging that he had spoken with an opposing counsel's client without opposing counsel's awareness, and was later untruthful concerning the events.¹ Upon conclusion of the disciplinary proceedings, the referee issued a report making the following findings of fact.

Feinberg was an Assistant State Attorney working for the felony division of the Charlotte County State Attorney's Office during the relevant time period. In 1996, Feinberg was approached by the private counsel of a criminal defendant charged with drug offenses. The attorney suggested that since the State had a strong case against his client, the only way his client could avoid prison would be to cooperate with the State Attorney's Office and provide assistance to law enforcement. Feinberg, the private attorney, and the defendant subsequently met to discuss a possible arrangement, but no agreement was reached.

The defendant was thereafter rearrested for violating the Department of Corrections' early release program,² whereupon his counsel again approached Feinberg in an attempt to negotiate a "deal" for the defendant. Feinberg referred the attorney to two law enforcement officers, who were not interested in effectuating such a "deal." The defendant proceeded to plead guilty to the drug charges.

The defendant later was able to convince the law enforcement authorities that he could provide assistance. The day before his sentencing hearing, the defendant met with law enforcement officers and Feinberg, but his private attorney was not present. At the meeting, Feinberg asked the defendant if he wanted his attorney present, and the defendant said "no." Although it is not entirely clear what the defendant said at this meeting, Feinberg testified:

I'm not 100 percent sure of what he said with regarding [sic] he is fired or he's gonna fire. I know my mind set going out of the meeting is that [the private attorney] is not going to represent [this defendant] anymore, and he is not representing [the defendant] in that meeting. That I know is my mind set.

Accordingly, Feinberg asked the defendant if he wanted court-appointed counsel and the defendant declined.

At the meeting, the defendant, Feinberg and the law enforcement officers reached an agreement through which the defendant, in exchange for providing assistance to law enforcement, would be released from jail and receive house arrest. The defendant then requested that his personal counsel not be advised of the agreement. The defendant asserted that his counsel had connections with the "drug community," meaning persons involved in selling illegal drugs, and if the defendant's agreement was disclosed, word would get back to the "drug community" that he was acting as an informant.³ Later that same day, the defendant's attorney met with the defendant and the defendant advised him that an agreement had been made with Feinberg and law enforcement officers.

At the sentencing hearing the next day, Feinberg found it "remarkable" to see the attorney appear on the defendant's behalf. Feinberg approached the attorney and told him that he had not prepared the necessary paperwork for sentencing, and that he was going to request a continuance. Feinberg did not mention the deal reached with the defendant, and the continuance was granted.

After the sentencing hearing, Feinberg went to his supervisor to discuss what had occurred (i.e., the defendant telling Feinberg at the meeting with law enforcement officers that he was not represented, and the defendant's attorney subsequently appearing on his behalf at sentencing). Feinberg, with the advice of his supervisor, decided that the defendant's cooperation with the police was a matter separate from the pending criminal charges. Accordingly, Feinberg and his supervisor decided to proceed with the informant arrangement and obtain the defendant's release from jail.

Shortly thereafter, the defendant's attorney confronted Feinberg and inquired if he had met with the defendant. Feinberg responded that he had not. Several days later, the defendant met with Feinberg and entered into a stipulation that the defendant would assist law enforcement.

According to the defendant's attorney, he asked Feinberg on two later occasions if he was meeting with the defendant, and Feinberg responded that he was not. At a later court hearing, the attorney requested a private in-chambers meeting with the judge and Feinberg. The attorney advised the judge as to what had occurred in the defendant's case. At Feinberg's disciplinary hearing, the defendant's counsel testified that Feinberg told the judge he had "done nothing to interfere in the attorney-client relationship between [counsel] and his client." The judge instructed Feinberg and opposing counsel to work out their differences, and the two attorneys agreed to a quasi-mediation session. At the disciplinary hearing, the mediator testified that when the attorney confronted Feinberg about speaking with one of his clients, Feinberg stated, "Well, you know, [counsel], once in awhile as attorneys we have to lie to one another." The mediator testified that within five minutes of making this comment, Feinberg stated that he misspoke. The mediator testified that Feinberg appeared remorseful and stated that he felt he was not getting guidance from his office as to how to handle the situation. The record of this meeting did not indicate whether Feinberg ever disclosed to opposing counsel the contact with the defendant.

The attorney subsequently moved to withdraw as the defendant's counsel and eventually filed a grievance against Feinberg with The Florida Bar. The Bar in turn filed the complaint underlying the present case.

As to guilt, the referee recommended that Feinberg be found guilty of violating rules 4-4.1(a)(requiring truthfulness in statements to others) and 4-4.2 (prohibiting communication with a person represented by counsel). The referee expressed his belief that "Bar Counsel in its Memorandum of Law for Sanctions appears only to request the Court to consider sanctions for [these violations]" and accordingly recommended that Feinberg only be sanctioned for violating rules 4-4.1(a) and 4-4.2. The referee set forth that even if the Bar did seek sanctions on Feinberg's alleged violations of rules 4-8.4(a) (prohibiting knowing violations of the rules), 4-8.4(c) (prohibiting dishonesty, fraud, deceit, and misrepresentation) and 4-8.4(d) (prohibiting attorneys from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice), he would recommend that Feinberg be found not guilty of violating these rules.

As to discipline, the referee first noted that the defendant had manipulated both his personal attorney and Feinberg to obtain his desired result. The referee stated that he

has no doubt that [the defendant] did indeed advise [Feinberg] not to tell his lawyer ... about a possible substantial assistance deal for fear that his lawyer would somehow communicate this intentionally or unintentionally to others who may put the word out on the street that the Defendant was working for law enforcement. The Referee [finds] that indeed [the defendant] was successful in manipulating law enforcement and [Feinberg] into believing that somehow [defendant's attorney] was involved in illegal narcotics and that [Feinberg] and/or [his] loved ones would be in danger if [opposing counsel] was advised of this deal.

The referee found no aggravating factors in the instant case; however, he did find the following mitigating factors: (a) lack of guidance and supervision (Feinberg went to his supervisor and the supervisor approved Feinberg's conduct); (b) good character or reputation (specifically noting that since the incident in this case, Feinberg has continued to handle cases against the attorney involved in this case, and the attorney has never asked that Feinberg be disqualified); (c) remorse; and (d) absence of selfish motive. Although not listed as a mitigating factor, the referee expressly noted that the defendant was not harmed in any way by Feinberg's misconduct; in fact, he benefitted from Feinberg's actions. The referee also found that Feinberg has continued his duties as an Assistant State Attorney without incident. Finally, the referee expressed his belief that "the chances of [Feinberg] committing another violation of this type are less than zero."

The referee stated that imposing a three-year suspension as recommended by the Bar would destroy Feinberg's career and that "the shame that has been cast on [Feinberg's] character and attendant local publicity about this matter is enough to deter any attorney from committing a like violation." Concluding that Feinberg's "desire to protect [the defendant], along with [his] lack of guidance, combined with ignorance of the law, is what fueled [his] behavior," the referee recommended the following discipline: (1) a public reprimand; (2) a judgment of costs against Feinberg, to be paid in equal monthly installments over a three-year period; (3) a letter of apology from Feinberg to the attorney in this case acknowledging the referee's findings and sanctions imposed; and (4) a letter from Feinberg to the State Attorney of the Twentieth Judicial Circuit...