The Florida Bar v. Rose

• Decision Date: 27 June 2002
• Docket Number: No. SC00-1792.,SC00-1792.
• Parties: THE FLORIDA BAR, Complainant, v. Brent Allan ROSE, Respondent.
• Court: Florida Supreme Court

823 So.2d 727

THE FLORIDA BAR, Complainant, v. Brent Allan ROSE, Respondent.

No. SC00-1792.

Supreme Court of Florida.

June 27, 2002.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Thomas E. DeBerg, Assistant Staff Counsel, Tampa, FL, for Complainant.

Scott T. Orsini of Orsini & Rose Law Firm, P.A., St. Petersburg, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Brent Allan Rose. We have jurisdiction. See art. V, § 15, Fla. Const.

The Florida Bar filed a complaint against Brent Allan Rose alleging that he violated various Rules Regulating the Florida Bar in representing a client in a criminal case.

FACTS

After a hearing, the referee made the following findings of fact:

Rose was defending a client in a criminal case.¹ The referee found that Rose failed to report several incidents which allegedly occurred that would involve improper contact with jurors in the case. The referee specifically noted that he was "not entirely persuaded that each alleged incident of improper contact actually occurred." However, the referee found that, regardless, "Rose had a duty to report the allegations of jury tampering to the trial court after they were brought to his attention," and Rose failed to do so. The referee next found that Rose did not thoroughly interview approximately fifteen defense witnesses. Rose only briefly met with the witnesses as a group for approximately forty-five minutes on the day before trial. Rose instructed the witnesses to make notes as to the testimony they would provide, but he failed to collect the notes. The referee also found that during jury selection Rose referred to his client as a child molester and stated that the reason he represents child molesters is because he gets paid for it. Based on these findings of fact, the referee recommended that Rose be found guilty of three violations of rule 4-1.1 of the Rules Regulating the Florida Bar (a lawyer shall provide competent representation to a client). The referee noted that Rose's reference to his client as a child molester was subsequently used by the prosecutor in closing argument and that Rose did not object. The referee, however, did not recommend that Rose's failure to object be found a violation of rule 4-1.1.² As to discipline, the referee recommended a thirty-day suspension followed by one year of probation, during which Rose would complete thirty credit hours of continuing legal education in specified areas. Further, the referee recommended that costs be awarded to The Florida Bar in the amount of $3,902.85.

The Bar petitioned this Court to review the referee's report as to discipline, arguing that a ninety-one-day suspension, along with the other conditions recommended by the referee, is more appropriate. Rose cross-petitioned seeking review of the recommendations concerning the rule violations along with the recommended discipline.

ANALYSIS

First, Rose challenges whether the referee's finding of fact that he was informed of the alleged juror contacts is based on competent and substantial evidence, and whether the referee correctly concluded that Rose's failure to report such alleged contact to the trial court constitutes a violation of rule 4-1.1. This Court's review of such matters is limited, and if a referee's findings of fact and conclusions concerning guilt 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. Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998).

According to the record, one witness testified that she saw prosecutors and prosecution witnesses talking in a smoking area outside the courthouse, and that jurors were also in the smoking area. She testified that she did not see anyone speak to the jurors, but that she advised Rose of the circumstances. A second witness also testified as to seeing prosecution witnesses talking with prosecutors outside the courthouse in the smoking area, approximately twenty feet from jurors, and that she informed Rose of the occurrence. A third witness testified concerning an incident in the smoking area very similar to that described by the other two witnesses, as well as an incident in which a member of the victims' family supposedly assisted a female juror into a van on a rainy day. This third witness testified, however, that she did not tell Rose about the first event and could not even recall telling him about the second event. This third witness also testified that, from a window on the second or third floor of the courthouse, she observed a person she believed to be a member of the victims' family speaking with two jurors outside in the smoking area. The third witness testified that she asked her husband to summon Rose to look from that window, but she had no idea whether Rose ever saw the alleged interaction. Finally, a fourth witness testified to seeing the victims' mother speak to some jurors in passing in the cafeteria area during lunch as the mother passed a table and that the mother briefly interacted with them for less than a minute. This fourth witness had no idea whatsoever as to words spoken or what was said, and she testified that she did not even advise Rose that this incident occurred. After reviewing this testimony in the record, we note that the referee's recommendation of guilt is based on a novel standard. The referee did not find that any improper juror contacts occurred,³ but nonetheless recommended that Rose be found to have violated a duty to report such allegations. Thus, under this recommendation, Rose would be in violation of the Rules Regulating the Florida Bar for failing to report that which the evidence did not establish had even occurred.

We simply cannot agree with the referee that the facts in this record establish a violation of rule 4-1.1. The testimony itself indicates that Rose was not informed of most of these alleged events. Further, we must note that merely because people involved in the trial were in an outdoor smoking area at the same time does not support the conclusion that improper juror contacts occurred or that a finding of incompetence is warranted. With regard to the standard the referee imposed upon Rose, we find that under this evidence Rose cannot be guilty of incompetence for failing to advise the trial judge of events that the referee found that he had not been persuaded even happened, especially considering many of the alleged events were not even brought to Rose's attention. Therefore, based on the facts in the record, we disapprove the referee's recommendation as to guilt with regard to the alleged improper juror contacts.

Second, we consider whether Rose violated rule 4-1.1 because he allegedly did not thoroughly interview certain witnesses. We conclude that testimony in the record supports the referee's findings of fact that Rose performed the described acts (i.e., interviewing approximately fifteen witnesses the day before trial). However, the determinative issue is whether Rose's conduct constitutes a violation of rule 4-1.1.

The Supreme Court of Arizona in In re Wolfram, 174 Ariz. 49, 847 P.2d 94, 100 (1993), considered charges of incompetence against a criminal defense attorney and noted "that some of Respondent's acts and omissions, if viewed independently of one another, are not objectionable and may be explained by legitimate lawyering and trial strategy." As mentioned here, the instant disciplinary action arose from representation rendered in a criminal case. In Florida Bar v. Sandstrom, 609 So.2d 583, 584 n. 1 (Fla.1992), this Court noted that "most cases of ineffective assistance of counsel do not rise to the level of a disciplinary violation." These two cases indicate that an attorney's conduct must be somewhat egregious to be considered incompetent and, therefore, a violation of rule 4-1.1. Also, Wolfram and Sandstrom reflect that when courts consider claims that an attorney's performance was deficient, the courts permit a certain amount of deference to an attorney's trial strategy or tactical decisions.

In Sandstrom, 609 So.2d at 583, this Court suspended an attorney for deficiencies in representation under the former Code of Professional Responsibility, finding that Sandstrom

failed to take any pretrial depositions; failed to conduct a proper investigation as related to evidence available to establish that the proximate cause of the wife's death was medical malpractice; failed to timely

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