We have each sent an email, text, or other communication to someone in error. It happens to the best of us, even the generations that are far more adept at technology than I. We get in a hurry, we get distracted, and we just plain make mistakes.
The Florida Bar filed a complaint against a lawyer that related to text messages. That they were sent to an unintended recipient is not the crux of the matter, but it played a role nonetheless. In SC20-128, The Florida Bar complained, a Bar grievance committee "found probable cause," and the matter proceeded before a referee designated by the Florida Supreme Court.
According to the complaint, an attorney was engaged to represent the defense in a workers' compensation proceeding. During a telephonic deposition of the insurance adjuster, the defense attorney was alleged to have "surreptitiously sent text messages to the adjuster regarding her testimony." These messages "included coaching and specific directions on how to respond." Claimant's counsel noted the "typing sounds" and asked if the attorney and witness "were engaging in texting," which defense counsel denied; defense counsel asserted that he was instead texting with his daughter.
The claimant's attorney nonetheless asked that texting cease, and counsel allegedly agreed. The defense counsel later allegedly "inadvertently sent a series of text messages, intended for (the adjuster), to" claimant's counsel. At that point, claimant's counsel was reasonably convinced something was going on. A motion was filed, and an in camera inspection was conducted of "the texts sent and received." The assigned JCC concluded that the texts sent "were not protected by attorney-client privilege because they dealt with 'testimonial matters and some of them constitute witness coaching.'” Thought the judge ordered all texts produced, those supposedly between counsel and daughter never were.
The Bar alleged that the messages sent by defense counsel were violations of Rules Regulating The Florida Bar: 3-4.3 Misconduct; 4-3.4 Fairness to Opposing Party and Counsel, and 4-8.4(d) Conduct Prejudicial to the Administration of Justice. The referee recommended that the attorney be found guilty, except as regards 4-8.4, and that a thirty-day suspension be imposed as punishment. Thus, the referee, a Florida trial judge appointed by the Court to hear the allegations and make recommendations, concluded that such behavior was not "prejudicial to the administration of justice."
The Bar sought review from the Supreme Court, which rendered its opinion on November 18, 2021. The Court agreed with the finding of guilt, but also concluded the circumstances did violate Rule 4-8.4(d), noting "that dishonesty in connection with the practice of law is prejudicial to the administration of justice." It noted referee findings that statements were "misleading and a matter contrary to honesty," and that the attorney "misrepresented" that the texting had concluded when it had not. Honesty and misrepresentation are serious conclusions of the Court.
The Court noted that this attorney felt that workers' compensation "proceedings are informal" and therefore "felt compelled to aid his witness during the deposition . . .." The Court noted that thereafter, the attorney strove to convince opposing counsel that texting was "during the break, not during the deposition." It concluded that the attorney "failed to be transparent and forthright with the judge regarding his texts . . .." The Court addressed Rule 4-8.4 and concluded that the texts were "dishonest." It noted that they included advice "to avoid providing certain information," and "to not give an absolute answer." This, the Court concluded, violated Rule 4-8.4.
The Court noted that the referee recommended a thirty-day suspension. It noted that the behavior was:
"conduct aimed at defeating the opposing party’s lawful attempts to obtain evidence, undermining the adversarial process, and as a result, the trial court’s (JCC) intervention was required."
Furthermore, that the attorney "then made misrepresentations to cover up his misconduct." It noted that the conduct included he "repeatedly misrepresented," and that his "failure to be forthright with the Judge of Compensation Claims" was "particularly egregious." See Candor, Omission, and Persuasion (October 2021). It concluded therefore that the appropriate punishment was a ninety-one-day suspension from the practice of law. In addition, the attorney was ordered to pay The Bar $2,851.80 in costs related to the inquiry into the matter. The Court was unanimous in its conclusions regarding the three rules that were violated.
Two Justices dissented in part. This opinion noted the "very serious nature of . . . (the) misconduct." However, the Justice would have concluded to accept the "referee's recommendation to impose a nonrehabilitative suspension." The opinion noted that the recommendation for punishment "was largely based on credibility determinations and an assessment of . . . demeanor." Concluding that the recommended thirty-day suspension was "consistent with our precedent," and that the referee was best situated to determine the credibility, the dissent would have adopted that 30-day suspension recommendation. This is consistent with the deference of appellate courts to trial judge fact-finding.
For many readers, the Court's phraseology may engender curiosity. What is "nonrehabilitative suspension?" The Florida Bar Journal featured a story in early 2021 that provides both explanation and edification: Florida's Lawyer Discipline System - What Every Attorney Needs to Know. This describes several potential punishments that the Court might impose for lawyer behavior, from disbarment down to admonishment or even probation. It provides a clear explanation of the suspension process:
"If for '90 days or fewer,' the suspension is labelled 'a nonrehabilitative suspension.' following such a suspension, the lawyer 'is automatically eligible to practice law,' so long as 'all other conditions of the suspension order have been satisfied.' There is no process or permissions needed, no 'approvals required.'"
Thus, a nonrehabilitative suspension would be a significant interruption in one's legal practice. It would necessarily involve another attorney taking over the representation of clients, and protection of their interests. It could impact income and the acceptance of new clients. However, there have been instances in which a suspended attorney continued advertising uninterrupted for new clients. Some see incongruity in that, but it perhaps makes sense in the nonrehabilitative instance where an end date is known.
Then, there is the rehabilitative suspension. The Bar Journal article explains:
"The suspension for '91 days or more is a rehabilitative suspension.' To return to the practice of law following such a suspension, the 'lawyer (must) . . . be reinstated to the practice of law by the court after showing that they have been rehabilitated.'"
Thus, a more significant interruption is patent, simply in the duration, though that increase may be seemingly slight (91 days versus 90 days, one day), but is significant. The rehabilitative process requires the
"lawyer must file a petition for reinstatement, undergo an investigation, establish to a referee that the lawyer has been rehabilitated and is not otherwise disqualified, and be reinstated by the court."
It is probable that such a process will be time-consuming and that a 91-day suspension could effectively be significantly longer. As reinstatement is not automatic, the potential exists that a lawyer sanctioned with a rehabilitative suspension might not ever return to the practice, and might not satisfy the Court of their contrition and rehabilitation. As Dinah Washington sang in 1959, "What a difference a day made."
The takeaways from the Court opinion are clear. First, do not text and depose. Coaching a witness in this manner is inappropriate. In a virtual world, there is undoubtedly frustration with our environment and our surroundings. Many have taken to the "chat room" during meetings in which getting a word in edgewise is impractical. More than one has likely resorted even to a text or an email beginning with "what do you think of _____ instead?" But, in the context of a deposition, that text or email is as inappropriate as would be whispering in a witness' ear. It is wrong, coaching, and should not be done or condoned.
Moreover, lawyers are not supposed to misrepresent and they are supposed to be forthright with the judge. When they misrepresent or are not forthright, such "dishonesty in connection with the practice of law is prejudicial to the administration of justice." This is a justice system in which the parties are afforded the opportunity to be heard regarding their claims and defenses. There is value in truth. All parties should strive for the truth. Lawyers are bound by it. In the end, the justice system works largely upon the shoulders of attorneys. Judges have to rely upon attorney representations. See Candor, Omission, and Persuasion (October 2021).
Truthfulness is critical. Forthright responses are critical. The administration of justice depends upon it, and the profession demands it. Lawyers must be trusted to be truthful and to demand it from others. Dishonesty is the fodder of bad lawyer jokes and a demeaning of the entire profession. Those who tolerate it demean us all and discredit the very process in which we strive to help people and earn a living. Dishonor, no matter how brief or even unintended demeans the very practice of law.
In the end, everyone has made mistakes. The very concept of "rehabilitation" expresses our hope that such mistakes can be overcome and rectified. In SC20-128, we hopefully see facts from which many can learn. Perhaps there are reminders there regarding candor, fairness, and obligation. Perhaps many would benefit from reviewing the Court's decision?
