The Florida Bar v. Cox

• Decision Date: 17 May 2001
• Docket Number: No. SC96217.,SC96217.
• Citation: 794 So.2d 1278
• Parties: THE FLORIDA BAR, Complainant, v. Karen Schmid COX, Respondent.
• Court: Florida Supreme Court

794 So.2d 1278

THE FLORIDA BAR, Complainant, v. Karen Schmid COX, Respondent.

No. SC96217.

Supreme Court of Florida.

May 17, 2001.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Division Director, Tallahassee, FL; and Debra Joyce Davis, Assistant Staff Counsel, Tampa, FL, for Complainant.

David A. Maney of Maney, Damsker & Jones, P.A., Tampa, FL, for Respondent.

PER CURIAM.

We have for review a referee's report recommending that attorney Karen Schmid Cox be publicly reprimanded for violating several Rules Regulating the Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we disapprove the referee's recommended discipline and impose a one-year suspension.

The Bar charged Cox with violating four Rules Regulating the Florida Bar while acting in her capacity as an Assistant United States Attorney in a criminal prosecution. Following hearings on both guilt and discipline, the appointed referee made the following factual findings.¹

FACTS

Cox was assigned to prosecute a case against James R. Sterba on an indictment charging a violation of 18 U.S.C. § 2422(b) (solicitation of a minor to engage in prostitution or any sexual act). The United States Customs Service ("Customs") investigated the case and employed a confidential informant, Adria Jackson, to pose as a 13 year old girl on the Internet to assist Customs in its investigation of child pornography and pedophiles. Customs gave Jackson the fictitious name of "Gracie Greggs." Prior to trial, the magistrate in the case ordered Cox to provide Jackson's name to the defense. Cox knew Jackson's true name prior to trial. However, Cox listed Jackson on the government's witness list as Gracie Greggs, and informed defense counsel, the court, and the venire that Jackson's name was Gracie Greggs. On direct examination of Jackson, Cox deliberately introduced the witness to the court and the jury by asking, "Are you Gracie Greggs?" instead of the customary question, "What is your name?" Jackson was a crucial witness for the government's case against Sterba, and Cox learned after trial that Jackson had a previous criminal history.

Jackson's true identity was revealed mid-trial and the United States District Court granted Sterba's motion for a mistrial. See United States v. Sterba, 22 F.Supp.2d 1333 (M.D.Fla.1998). Sterba then moved to dismiss the indictment against him on double jeopardy grounds and the federal district court agreed that Sterba had been "goaded" into requesting a mistrial:

Specifically, I have found that the intent of the prosecutor in this case was to succeed in palming off Adria Jackson and her biographical baggage as Gracie Greggs, an operative of law enforcement....

As a result of the prosecutorial plan in this case, the United States required the defense to present its case, forced the defendant to make his constitutional election whether to testify, secured the right to cross-examine the defendant under oath, and otherwise leveraged the defendant into the position of revealing his strategy, his theories, his evidence, and his cross-examination. All the while, the prosecutor [Cox] harbored a secret. Viewed one way, the secret was that she had withheld so-called Giglio and other information that, if ever known to the defense, might discredit her featured witness. Viewed differently, the secret was that the prosecutor at any time could prompt a defense motion for a mistrial (and thereby accrue another chance at conviction) by revealing to the defense the truth about "Gracie Greggs." In either event, the trial was not conducted on equal footing because the prosecutor had a lie at her disposal.

. . . .

By a course of intentional misconduct, discovered serendipitously by the defense during trial, the prosecution goaded the defense into moving for a mistrial. The defendant's fifth amendment immunity from double jeopardy precludes another trial and, therefore, requires the dismissal of the indictment.

Id. at 1341-43. Although the referee in this case disagreed with the district court's determination that Cox planned to deprive Sterba of his constitutional rights, the referee did conclude that Cox "was a seasoned prosecutor and fully aware of the requirements of candid disclosure to the court and defense counsel and the reasons in justice for that candor."

Based on his factual findings, the referee recommended that Cox be found guilty of violating the following Rules Regulating the Florida Bar: 4-3.3(a)(1) (lawyer shall not knowingly make false statement of material fact or law to a tribunal); 4-3.3(a)(4) (lawyer shall not knowingly permit any witness to offer testimony that the lawyer knows to be false); 4-3.4(a) (lawyer shall not unlawfully obstruct another party's access to evidence or otherwise conceal other material that the lawyer knows or should know is relevant to pending proceeding, nor assist another person to do such an act); and 4-3.4(b) (lawyer shall not fabricate evidence, or counsel or assist a witness to testify falsely).

As to discipline, the referee initially concluded that the presumptively appropriate sanction was suspension under Florida Standard for Imposing Lawyer Sanctions 6.12, which provides:

Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action.

The referee found that Standard 6.11, which provides for the presumption of disbarment, was not the proper starting point for the analysis of this case because "the evidence indicates that [Cox] did not intend to deceive the United States District Court before which she was practicing on any matter of substantial justice." The referee found that Cox believed Jackson had a clean criminal record and that the use of an assumed name for the witness would not be any impediment to justice in the case.

The referee found only one aggravating circumstance-that Cox had substantial experience in the practice of law. See Fla. Stds. Imposing Law. Sancs. 9.22(i). In mitigation, the referee found that Cox had no prior disciplinary record, lacked a selfish or dishonest motive, and made full and free disclosure during the proceedings. See Fla. Stds. Imposing Law. Sancs. 9.32(a), (b), (e). The referee also found that Cox would be subject to additional penalties as a result of her misconduct, see Fla. Stds. Imposing Law. Sancs. 9.32(g), because "[s]he has been investigated by the Office of Professional Regulation for this conduct and anticipates receiving a penalty of two weeks without pay." The referee found that Cox's reputation was "excellent" and "unsullied except for this instance." See Fla. Stds. Imposing Law. Sancs. 9.32(g). The referee relied on Cox's "impressive list of state and federal judges, law enforcement officers, and associates who willingly testified that she is intelligent, candid, hardworking, always well-prepared, courteous, professional, admired, respected, and dedicated to our system of justice," and the testimony of several of these witnesses that the instant conduct "was a mistake and an aberration." The referee also found that Cox was sincerely remorseful, see Fla. Stds. Imposing Law. Sancs. 9.32(l), and that Cox "comprehends or fully grasps the serious import of her conduct and truly regrets her actions." The referee observed: "I believe her when she says that her remorse stems not only from the embarrassment it has caused her personally but also from the embarrassment it has caused to her profession as a lawyer and prosecutor."

The referee concluded that the many mitigating circumstances, when weighed qualitatively against the one aggravating circumstance, "seem to call for a reduction of the discipline" from the presumption of suspension, and recommended that Cox receive a public reprimand and be placed on probation. Although the referee did not specifically rely on any one case in making this recommendation, the referee explained that such a sanction "seem[ed] to be proportional with other similar disciplinary cases," and noted that several cases involving false testimony lacked the substantial mitigation found in the instant case. The referee commented that "[p]rosecutors as a class are accustomed to demanding punishment of others ... [and] to assuming an attitude of righteous indignation on behalf of society," and therefore concluded that Cox "is one of those lawyers whose sense of justice is sufficient that she will truly suffer as a result of a public reprimand."

THE BAR'S PETITION FOR REVIEW

The Bar seeks review of the referee's recommended sanction, arguing that a public reprimand is inappropriate under the facts of this case and that a three-year suspension is in order. Although a referee's findings of fact are given deference, our review of a referee's recommended discipline is more extensive, because this Court has the ultimate responsibility to determine the appropriateness of a recommended sanction. See Florida Bar v. Niles, 644 So.2d 504 (Fla.1994). However, we typically will not disapprove a referee's recommended discipline so long as the referee's recommendation has a reasonable basis in existing caselaw. See Florida Bar v. Lecznar, 690 So.2d 1284, 1288 (Fla. 1997). In this case, we conclude that in light of the duty violated and the injury caused by the misconduct, the referee's recommended discipline of a public reprimand does not have a reasonable basis in existing caselaw, and we therefore disapprove the recommended discipline.

Cox argues that the referee's recommended sanction is supported by many cases involving misrepresentations in which public reprimands were imposed.² Having reviewed the cases cited by Cox, we find that these cases are distinguishable because the misrepresentations at issue in these cases either did not have a dramatic effect on the proceedings,³ were less severe or less culpable than the instant case,⁴ arose...