The Florida Bar v. Wasserman, s. 83818

• Decision Date: 21 March 1996
• Docket Number: Nos. 83818,84438 and 84814,s. 83818
• Citation: 675 So.2d 103
• Parties: 21 Fla. L. Weekly S137 THE FLORIDA BAR, Complainant, v. Phillip R. WASSERMAN, Respondent.
• Court: Florida Supreme Court

Page 103

675 So.2d 103

21 Fla. L. Weekly S137

THE FLORIDA BAR, Complainant, v. Phillip R. WASSERMAN, Respondent.

Nos. 83818, 84438 and 84814.

Supreme Court of Florida.

March 21, 1996.

Rehearing Denied May 15, 1996.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Stephen C. Whalen, Assistant Staff Counsel, Tampa, for Complainant.

Scott K. Tozian of Smith and Tozian, Tampa, for Respondent.

PER CURIAM.

We have for review three consolidated complaints of The Florida Bar and the referee's report regarding alleged ethical breaches by Phillip R. Wasserman. We have jurisdiction. Art. V, § 15, Fla. Const.

In case number 83,818, the referee recommends that Wasserman be found guilty of violating Rules Regulating The Florida Bar 3-4.3 (committing an act that is unlawful or contrary to honesty or justice) and 4-3.5(c) (engaging in conduct intended to disrupt a tribunal) and be given a sixty-day suspension. In case number 84,814, the referee recommends that Wasserman be found guilty of violating Rules Regulating The Florida Bar 3-4.3 (committing an act that is unlawful or contrary to honesty or justice) and 4-8.4(a) (violating Rules of Professional Conduct) and be given a six-month suspension. In case number 84,438, the referee recommends that Wasserman be found not guilty.

The recommendation of guilt in case number 83,818 is based on the following findings of fact. On August 23, 1993, Wasserman attended a hearing before Judge Bonnie Newton and lost his temper after a ruling by Judge Newton. He stood and shouted his criticism, he waved his arms, he challenged Judge Newton to hold him in contempt and displayed his arms as if to be handcuffed, he stated his "contempt" for the court, he banged on the table and generated such a display of anger that the bailiff who was present felt it necessary to call in a backup bailiff. Immediately thereafter, outside the hearing room, in the presence of both parties and opposing counsel, Wasserman stated that he would advise his client to disobey the court's ruling.

In case number 84,814, the recommendation of guilt is based on the following findings of fact. On April 14, 1994, after getting an unfavorable response to a question asked over the telephone of Judge John Lenderman through his judicial assistant, Wasserman said to the assistant, Cynthia Decker, "You little motherf-----; you and that judge, that motherf----- son of a b----." Ms. Decker was so upset by the incident that she had to leave the office early that day.

These findings of fact, which are supported by competent, substantial evidence, support the recommendations of guilt in case numbers 83,818 and 84,814. Therefore, we approve the findings and recommendations of guilt in those cases. We also approve the recommendation that Wasserman be found not guilty in case number 84,438.

First, we address Wasserman's challenges to the referee's recommendation of guilt in case number 84,814. We reject Wasserman's contention that his conduct does not violate Rule of Discipline 3-4.3. Rule 3-4.3 reads in pertinent part:

The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, ... whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

Wasserman was found guilty of indirect criminal contempt for his conduct. Moreover, as noted by the referee, Wasserman's theory of defense--the judicial assistant concocted the words said by Wasserman or alternately, that if he said the words, he thought that he had hung up the telephone--"manifests a serious lack of a sense of the importance of truth and forthrightness in legal proceedings." We also reject Wasserman's argument that this Court may not discipline an attorney for violating Rule of Discipline 3-4.3. ¹ On numerous occasions, this Court has disciplined attorneys for violating Rule 3-4.3. See, e.g., Florida Bar v. Pearce, 631 So.2d 1092 (Fla.1994) (attorney who failed to file two income tax returns found guilty of violating rule 3-4.3 and other rules); Florida Bar v. Stillman, 606 So.2d 360 (Fla.1992) (attorney who made misrepresentations to a mortgage company was found guilty of violating rule 3-4.3 and other rules); Florida Bar v. Williams, 604 So.2d 447 (Fla.1992) (attorney who failed to diligently represent client, made false and misleading statements to grievance committee, violated rule governing trust accounts, and committed other similar acts was found guilty of violating rule 3-4.3 and other rules); Florida Bar v. Anderson, 594 So.2d 302 (Fla.1992) (attorney who embezzled public funds found guilty of violating rule 3-4.3 and rules 4-8.4(a) & (b)).

Finally, we reject Wasserman's contention that his statements to the judicial assistant are protected by the First Amendment to the United States Constitution and article I, section 4 of the Florida Constitution. It is clear that the right to free speech under the federal and Florida Constitutions does not preclude the disciplining of a lawyer for speech directed at the judiciary. In re Shimek, 284 So.2d 686, 689 (Fla.1973).

Both Wasserman and the Bar challenge the recommended sixty-day suspension in case number 83,818. Wasserman maintains that in light of the circumstances under which the misconduct occurred, the mitigation shown, and the discipline imposed in cases involving similar attorney misconduct, the recommended sixty-day suspension is excessive. The Bar, on the other hand, takes the position that a six-month suspension is more appropriate in light of the serious nature of the misconduct, the potential injury to the parties, and Wasserman's prior disciplinary record.

First, we cannot agree that the fact that Wasserman's outburst and stated intent to counsel his client to defy a court order occurred "during an emotionally charged custody hearing and [were] done in the heat of battle" somehow transforms Wasserman's egregious behavior into "minor misconduct." Moreover, because Wasserman has been publicly disciplined on three prior occasions, his misconduct in this case cannot be considered minor. ² R. Regulating Fla. Bar 3-5.1(b)(1)(C) (in absence of unusual circumstances misconduct shall not be regarded as minor if the respondent has been publicly disciplined in the past five years). We also cannot agree that the referee failed to adequately consider the mitigation presented. In recommending the sixty-day suspension, the referee considered in mitigation Wasserman's donations of time and money to Suncoast Child Protection Team, Inc., and his considerable pro bono legal services. Further, the referee considered in mitigation that "Wasserman admits his behavior was inappropriate and indicates he would not do the same again but, at the same time, he seems to feel such conduct is/was justified by a heavy...