Florida Bar v. Scheinberg

129 So. 3d 315, 38 Fla. L. Weekly Supp. 432, 2013 WL 3064825, 2013 Fla. LEXIS 1225
CourtSupreme Court of Florida
DecidedJune 20, 2013
DocketNo. SC11-1865
StatusPublished
Cited by7 cases

This text of 129 So. 3d 315 (Florida Bar v. Scheinberg) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Bar v. Scheinberg, 129 So. 3d 315, 38 Fla. L. Weekly Supp. 432, 2013 WL 3064825, 2013 Fla. LEXIS 1225 (Fla. 2013).

Opinion

PER CURIAM.

We have for review a referee’s report recommending that Respondent Howard Michael Scheinberg be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended for one year. Respondent Scheinberg has filed a petition for review of the report. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, we approve the referee’s findings of fact and recommendation as to guilt. However, we disapprove the referee’s recommended discipline. We conclude that Scheinberg’s serious misconduct in this case warrants a two-year suspension from the practice of law in Florida.

FACTS

In September 2011, The Florida Bar filed a complaint against Scheinberg, alleging that he engaged in misconduct in violation of Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). A referee was appointed to consider the matter. Following the referee’s appointment, Scheinberg filed a motion to dismiss the complaint, which alleged that the Bar (or one of its agents) breached confidentiality in violation of Bar Rule 3-7.1 (Confidentiality).1 The referee entered an order denying the motion. Thereafter, the referee held a hearing in the case; she has submitted a Report of Referee for the Court’s review, in which she makes the following findings and recommendations.

In 2007, Scheinberg was the lead prosecutor in State of Florida v. Omar Loureiro, a first-degree capital murder case in which the State was seeking the death penalty. Former Judge Ana Gardiner was the presiding judge in the case. On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder. Subsequently, on May 20, 2007, the jury recommended the death penalty; on August 24, 2007, former Judge Gardiner imposed the death penalty. During the period of time from March 23, 2007, four days [317]*317before the jury returned its guilty verdict in Loureiro, to August 24, 2007, the day that former Judge Gardiner imposed the death penalty, Scheinberg and Gardiner engaged in substantial personal communications by phone or text message. Specifically, Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages during that period. Scheinberg did not disclose these communications to the attorney representing Loureiro.

Following Loureiro’s conviction and sentence, his attorneys initiated a direct appeal. However, when the communications between Scheinberg and former Judge Gardiner were discovered, the Broward State Attorney’s office agreed to a new trial in the case. The referee found: “The undisclosed conduct between former Judge Ana Gardiner and the respondent, contributed to the decision by the State of Florida, through its Broward State Attorney to agree to a new trial in State of Florida v. Omar Loureiro to dispel any public misconception that there was any denial of due process.”

Based on these factual findings, the referee recommends that Scheinberg be found guilty of violating Bar Rule 4 — 8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). The referee observed: “The undisclosed communications between the judge and Respondent prejudiced the system. The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice.”

The referee found three aggravating factors in this case: a pattern of misconduct; multiple offenses; and substantial experience in the practice of law. The referee also found four mitigating factors: the absence of a prior disciplinary record; full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings; good character or reputation; and remorse.

As to the sanction, the referee recommends that Scheinberg be suspended from the practice of law for one year. The referee also awarded costs to The Florida Bar, in the amount of $3,881.96.

As noted, Scheinberg has filed a petition for review of the referee’s report, challenging the referee’s recommendation as to guilt, as well as the recommended sanction. Scheinberg also challenges the referee’s denial of his motion to dismiss. However, we find, without further discussion, that the referee did not abuse her discretion in denying Scheinberg’s motion.

ANALYSIS

The Referee’s Recommendation as to Guilt

While the facts in this case are not disputed, Scheinberg contends that such facts do not support the referee’s recommendation that he be found guilty of violating Bar Rule 4-8.4(d). In reviewing a referee’s recommendations as to guilt, the Court has repeatedly stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005).

Rule 4 — 8.4(d) provides that a lawyer shall not “engage in conduct in connection with the practice of law that is prejudicial to the administration of justice.” Here, the referee found that Scheinberg’s extensive personal communications with former Judge Gardiner, which occurred while Gardiner was the presiding judge in the Loureiro capital murder case, ultimately contributed to the State’s decision to retry the case. Thus, the referee found that [318]*318Scheinberg’s conduct was prejudicial to the administration of justice, in violation of rule 4 — 8.4(d). We agree.

Although the Court has long held that ex parte communications between a lawyer and presiding judge are “dangerous and destructive of the impartiality of the judiciary,” see Rose v. State, 601 So.2d 1181, 1183 (Fla.1992), we have not considered a case like the one presented here, where the communications at issue did not pertain to the pending case. Scheinberg and Gardiner engaged in a substantial number of personal communications, including more than nine hundred personal cell phone calls and more than four hundred text messages in a five-month period. It is not disputed that their conversations were personal in nature and did not pertain to the Loureiro case. However, it is also clear that their communications were not casual or administrative, such as the type of communication that might occur when a lawyer and judge pass each other in the hallway or when they serve on the same committees. Their extensive communications, once discovered, created an appearance of impropriety in the case. We find guidance in In re Adams, 932 So.2d 1025 (Fla.2006), in which we held that a judge engaged in misconduct when he became involved in a romantic relationship with an attorney who appeared before him, and continued to preside over matters in which the attorney appeared as counsel. In Adams, we stated:

Even in the absence of evidence that a romantic relationship with an attorney practicing in a judge’s court has influenced the judge’s judgment, the judge’s authority necessarily suffers. First, the intimate relationship itself is contrary to the judge’s role of maintaining detached neutrality as to the litigants and lawyers who appear in his or her courtroom.

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Cite This Page — Counsel Stack

Bluebook (online)
129 So. 3d 315, 38 Fla. L. Weekly Supp. 432, 2013 WL 3064825, 2013 Fla. LEXIS 1225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-bar-v-scheinberg-fla-2013.