Supreme Court of Florida ____________
No. SC2023-0421 ____________
THE FLORIDA BAR, Complainant,
vs.
ALEXA MARTINEZ, Respondent.
June 19, 2025
PER CURIAM.
We have for review a referee’s report recommending that
Respondent, Alexa Martinez, be found guilty of professional
misconduct in violation of the Rules Regulating The Florida Bar and
that she be suspended from the practice of law for 10 days and
publicly reprimanded. Both The Florida Bar and Martinez have
petitioned for review, challenging the referee’s findings of fact,
recommendations as to guilt, and the recommended discipline.1
1. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed below, we approve in part and
disapprove in part the referee’s recommendations as to guilt and
findings in mitigation and aggravation. We also disapprove the
referee’s recommended discipline and instead suspend Martinez
from the practice of law for 90 days.
BACKGROUND
Martinez was a member of the Bar for just two months when
she was hired in February 2017 as an associate by Silverberg Brito,
PLLC (Silverberg). Silverberg terminated her employment less than
four months later.
After her employment was terminated, Martinez retained
possession of a USB drive belonging to Silverberg. Silverberg
demanded Martinez return the USB drive. She stated she would
return it, but she did not do so initially. After multiple requests by
Silverberg, Martinez returned the USB drive, but the drive was
empty. The referee found that Martinez’s deletion of the contents of
the USB drive constituted violations of rules 4-3.4 (Fairness to
Opposing Party and Counsel), 4-8.4(c) (“A lawyer shall not engage in
conduct involving dishonesty, fraud, deceit, or
misrepresentation . . . .”), and 4-8.4(d) (“A lawyer shall not engage
-2- in conduct in connection with the practice of law that is prejudicial
to the administration of justice . . . .”).
Also, after her employment was terminated, Martinez
attempted to negotiate with Silverberg about the language for a joint
letter to be sent to Silverberg’s clients on whose cases she worked.
The letter would have informed the clients of Martinez’s departure
from Silverberg, and it would have advised the clients that they
could proceed with Martinez as their attorney, stay with Silverberg,
or hire new counsel. These negotiations broke down, and Martinez
acted unilaterally to inform the firm’s clients of her departure from
Silverberg and their options going forward.
Silverberg claimed that when unilaterally contacting the
clients, Martinez disparaged and defamed Silverberg and its
attorneys to the firm’s clients and otherwise interfered with the
relationships between the clients and the firm. Silverberg also
claimed that Martinez unilaterally filed notices of appearance in
cases involving Silverberg’s clients without first notifying Silverberg
and without presenting proof that the clients chose to have her
represent them.
-3- Regarding Martinez contacting the clients, the referee
recommends finding that Martinez engaged in minor misconduct in
violation of rule 3-4.3 (Misconduct and Minor Misconduct).
Additionally, the referee recommends finding Martinez guilty of
violating rule 4-8.4(d) because in at least one case, Martinez filed a
notice without proper client authorization and unreasonably
delayed her withdrawal for about one month.
Because Martinez delayed returning the USB drive and began
contacting and filing notices of appearance in Silverberg’s clients’
cases, Silverberg sought injunctive and civil relief against Martinez.
In that civil case, Martinez filed several notices of unavailability,
which the Bar argues were improper. However, the referee did not
recommend finding Martinez guilty of any rule violations for this
because he did not believe Martinez’s notices of unavailability
constituted dishonest conduct warranting discipline given her lack
of experience at the time and the confusion surrounding the proper
uses of notices of unavailability.
ANALYSIS
Our review of a referee’s findings of fact is limited, and if the
findings of fact are supported by competent, substantial evidence in
-4- the record, we will not reweigh the evidence and substitute our
judgment for that of the referee. Fla. Bar v. Alters, 260 So. 3d 72,
79 (Fla. 2018) (citing Fla. Bar v. Frederick, 756 So. 2d 79, 86 (Fla.
2000)).
As for a referee’s recommendations as to guilt, “the referee’s
factual findings must be sufficient under the applicable rules to
support the recommendations.” Fla. Bar v. Patterson, 257 So. 3d
56, 61 (Fla. 2018) (citing Fla. Bar v. Shoureas, 913 So. 2d 554,
557-58 (Fla. 2005)). Ultimately, the burden is on the party
challenging the referee’s findings of fact and recommendations as to
guilt to demonstrate “that there is no evidence in the record to
support those findings or that the record evidence clearly
contradicts the conclusions.” Fla. Bar v. Germain, 957 So. 2d 613,
620 (Fla. 2007).
The USB Drive
The referee found that Martinez violated rules 4-3.4, 4-8.4(c),
and 4-8.4(d) by returning an empty USB drive to Silverberg.
Martinez challenges the referee’s factual findings regarding this
issue, whereas the Bar asks the Court to uphold the referee’s
findings of fact and recommendations as to guilt.
-5- Rule 4-3.4(a) states that a lawyer shall not “unlawfully
obstruct another party’s access to evidence or otherwise unlawfully
alter, destroy, or conceal a document or other material that the
lawyer knows or reasonably should know is relevant to a pending or
a reasonably foreseeable proceeding.” There is competent,
substantial evidence in the record that the contents of the USB
drive were subject to litigation between Martinez and the firm, with
the firm believing Martinez saved confidential firm files to the drive.
Martinez knew the contents of the USB drive were in question and
relevant to the litigation between her and the firm. Yet, she delayed
returning the drive and deleted its contents before finally returning
it. Thus, we approve the referee’s recommendation that Martinez be
found guilty of violating rule 4-3.4(a).
We, likewise, approve the referee’s recommendation that
Martinez be found guilty of violating rules 4-8.4(c) and 4-8.4(d).
Rule 4-8.4(c) prohibits a lawyer from “engag[ing] in conduct
involving dishonesty, fraud, deceit, or misrepresentation.” The
record supports a conclusion that Martinez acted dishonestly and
deceptively when she delayed returning the USB drive and deleted
its contents before finally returning it. And rule 4-8.4(d) prohibits a
-6- lawyer from “engag[ing] in conduct in connection with the practice
of law that is prejudicial to the administration of justice.”
Martinez’s act in deleting the contents on the drive was
prejudicial to the administration of justice because the contents of
the drive were relevant to Silverberg’s civil case against Martinez.
Accordingly, we approve the referee’s findings of fact and find
Martinez guilty of violating rules 4-3.4, 4-8.4(c), and 4-8.4(d) for
delaying the return of the USB drive and deleting its contents.
Contact with Clients
The referee recommends that Martinez be found guilty of
minor misconduct in violation of rule 3-4.3 for contacting
Silverberg’s clients after her employment was terminated. 2 The Bar
argues that the referee should have also found Martinez guilty of
violating rule 4-5.8 (Procedures for Lawyers Leaving Law Firms and
Dissolution of Law Firms) based on her unilateral contact with
Silverberg’s clients after her termination. We disagree and, instead,
2. Neither party challenges the referee’s recommendation that Martinez be found guilty of violating rule 3-4.3, and we approve the referee’s recommendation regarding this rule violation without further comment.
-7- approve the referee’s recommendation to not find Martinez guilty of
violating rule 4-5.8.
Rule 4-5.8(c)(1) states that for lawyers leaving law firms:
Absent a specific agreement otherwise, a lawyer who is leaving a law firm may not unilaterally contact those clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful.
The record evidence supports the referee’s finding that
Martinez negotiated with Silverberg to come to an agreement on a
joint letter to send to the clients. After Martinez’s departure from
Silverberg, she and Silverberg’s attorney, Christopher Spuches,
exchanged numerous emails regarding the substance of a proposed
joint letter. Martinez ultimately told Spuches that she did not agree
to send the letter out if her requested modifications were not made.
Thus, she believed that they had come to an impasse, and she
contacted the clients herself. Based on this exchange, we find that
the referee’s finding that Martinez attempted to negotiate with the
firm to draft a joint letter is supported by competent, substantial
evidence. This finding supports the referee’s recommendation that
-8- Martinez be found not guilty of violating rule 4-5.8 for contacting
the clients.
Additionally, the Bar argues that Martinez improperly
contacted the clients because she did not have direct contact with
them or provide significant legal services to them while she worked
at Silverberg. However, we note that these are guidelines provided
in the comment to the rule as to which clients should be contacted,
but they do not prohibit contacting clients for which these
thresholds are not met. Nevertheless, relying on Martinez’s billable
hours, the referee found that she provided significant legal services
for the clients she contacted. Accordingly, we approve the referee’s
recommendation that Martinez be found not guilty of violating rule
4-5.8 for contacting the clients.
Misrepresentations Made to Clients
The referee recommended Martinez be found not guilty of
violating rule 4-4.1 (Truthfulness in Statements to Others) based on
the Bar’s claim that she made misleading and disparaging
comments about Silverberg to Silverberg’s clients when she
contacted them after her termination. We approve the referee’s
-9- recommendation because such conduct, even if proven before the
referee, would not constitute a violation of rule 4-4.1.
Rule 4-4.1 provides:
In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 4-1.6.
(Emphasis added.) Even if the Bar had sufficiently established that
Martinez made misrepresentations, it was not to a third party while
representing a client. Accordingly, we approve the referee’s
recommendation that Martinez be found not guilty of violating rule
4-4.1.
Notices of Appearance
violating rule 4-8.4(d) based on her filing notices of appearance.
However, the Bar argues that she should also be found guilty of
violating rules 4-3.1 (Meritorious Claims and Contentions), 4-3.3
(Candor Toward the Tribunal), and 4-8.4(c) as well. We agree with
the Bar, approving the referee’s recommendation of guilt for
- 10 - violating rule 4-8.4(d) but also finding Martinez guilty of violating
rules 4-3.1, 4-3.3, and 4-8.4(c).
Rule 4-3.1 provides that a lawyer may “not bring or defend a
proceeding, or assert or controvert an issue therein, unless there is
a basis in law and fact for doing so that is not frivolous.” Martinez
made baseless assertions in filing her notices of appearance in the
Morelus, Jacques, and Gershfeld cases. There is competent,
substantial evidence to support the referee’s finding that Martinez
did not have authorization to file her notice of appearance in the
Morelus case. Gisel Brito, a partner for the firm, testified that
Morelus contacted her after Martinez had contacted him. Morelus
told Brito that he did not sign anything and wanted Silverberg to
continue to represent him. Despite this, Martinez sent a letter to
Silverberg stating that she was retained to represent Morelus and
demanding Silverberg not contact Morelus and cease and desist
from performing any other work on his case. Thereafter, Morelus
indicated in writing his wishes to stay with Silverberg. Yet, it took
more than two weeks for Martinez to withdraw from his case.
As to the Jacques case, Martinez sought consent from the
Jacqueses’ son to represent his parents. However, because
- 11 - Martinez had no basis to rely on the son’s consent as authorizing
her representation of his parents, the referee’s finding that Martinez
was authorized to file a notice of appearance in the Jacques case
has no legal basis. Additionally, while there were three plaintiffs in
the Gershfeld case, because Martinez only claimed she represented
Gershfeld, her appearance in the case did not terminate Silverberg’s
involvement. Thus, Martinez’s statement to Spuches that she
represented all three clients and demand that Silverberg withdraw
were not justified. Accordingly, the record evidence clearly
contradicts the referee’s recommendation that Martinez be found
not guilty of violating rule 4-3.1.
Next, rule 4-3.3 provides that a lawyer shall not knowingly
“make a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the
tribunal by the lawyer.” In filing her notices of appearance in the
Morelus and Jacques cases, Martinez misrepresented to the court
that she was authorized to represent the clients. Additionally, in
the Perez case, although Martinez initially received authorization
from Perez, it was quickly revoked the next day. Yet, she did not
withdraw from his case until nearly one month later when
- 12 - Silverberg demanded her withdrawal. Accordingly, the record
evidence clearly contradicts the referee’s recommendation that
Martinez be found not guilty of violating rule 4-3.3.
Additionally, rule 4-8.4(c) prohibits a lawyer from “engag[ing]
in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” Martinez misrepresented in multiple cases that
she represented the clients and had authority to file notices of
appearance on their behalf. Based on these misrepresentations, the
record evidence clearly contradicts the referee’s recommendation
that Martinez be found not guilty of violating rule 4-8.4(c).
Rule 4-8.4(d) prohibits a lawyer from “engag[ing] in conduct in
connection with the practice of law that is prejudicial to the
administration of justice.” After filing her notice of appearance in
the Gershfeld case, Martinez attempted to undo a settlement offer
that was sent by Silverberg before Martinez filed the notice of
appearance and tried to assert her claim to attorney’s fees from a
settlement. This resulted in the filing of a motion to enforce the
settlement agreement by the insurance company and the disputed
funds being held in the court’s registry, causing substantial delay
before the court entered an order awarding the entire amount of
- 13 - attorney’s fees to Silverberg. Thus, because Martinez’s conduct was
prejudicial to the administration of justice, we approve the referee’s
recommendation that Martinez be found guilty of violating rule
4-8.4(d).
Accordingly, we uphold the referee’s recommendation that
Martinez be found guilty of violating rule 4-8.4(d) but disapprove
the referee’s recommendation of finding no guilt for violating rules
4-3.1, 4-3.3, and 4-8.4(c), instead finding Martinez guilty of
violating these rules.
Notices of Unavailability
The Bar contends that Martinez violated rules 4-3.4(c),
4-8.4(c), and 4-8.4(d) by filing multiple notices of unavailability and
trying to avoid being deposed in her civil case against Silverberg.
We agree and find Martinez guilty of violating rules 4-3.4(c),
4-8.4(c), and 4-8.4(d).
Rule 4-3.4(c) states that a lawyer must not “knowingly disobey
an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists.” Rule
4-8.4(c) provides that “[a] lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation.” And rule
- 14 - 4-8.4(d) states that “[a] lawyer shall not engage in conduct in
connection with the practice of law that is prejudicial to the
administration of justice.”
Here, Spuches, counsel for Silverberg, testified that Martinez
filed multiple notices of unavailability, which he claimed were
untruthful and led to scheduling issues. The referee considered
Martinez’s testimony and concluded that he did not believe she
understood when a notice of unavailability should be properly used.
Thus, he concluded although her filing the notices was not well
thought through, it did not amount to a rule violation.
But the referee’s recommendation on this point overlooked the
circuit court’s order granting Silverberg’s motion to compel
Martinez’s deposition and sanctions. On December 19, 2017, the
court granted both motions, ordered Martinez to appear for
deposition on January 5, 2018, and reserved ruling on the amount
of attorney’s fees and costs to be entered against her. Martinez
appeared for the deposition but did not produce a single document
identified in the notice. After some questioning, her counsel
terminated the deposition early. Counsel for Silverberg filed a
second motion to compel Martinez’s deposition. Martinez agreed to
- 15 - be deposed on May 26, 2018, but then filed a motion for protective
order nine days prior to her deposition. This prompted a third
motion to compel her deposition, which was granted by the court,
and Silverberg was again awarded its reasonable attorney’s fees and
costs in bringing the motion. Martinez failed to appear at the
deposition.
The record evidence clearly contradicts the referee’s
recommendation that Martinez be found not guilty of violating rules
4-3.4(c), 4-8.4(c), and 4-8.4(d). Accordingly, we disapprove the
referee’s recommendation and conclude that Martinez violated rules
4-3.4(c), 4-8.4(c), and 4-8.4(d).
DISCIPLINE
We now turn to the referee’s recommendation to impose a
10-day suspension and public reprimand as a sanction for
Martinez’s misconduct. “Prior to making a recommendation as to
discipline, referees must consider the Standards for Imposing
Lawyer Sanctions, which are subject to aggravating and mitigating
circumstances, and this Court’s existing case law.” Fla. Bar v.
Strems, 357 So. 3d 77, 90 (Fla. 2022). Our review of a referee’s
recommended discipline is broader than that afforded to the
- 16 - referee’s findings of fact because, ultimately, it is our responsibility
to order the appropriate sanction. See Patterson, 257 So. 3d at 64;
Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art.
V, § 15, Fla. Const.
Standards
In looking at the Standards, we find support for suspension as
the presumptive sanction in this case. Under Standard 5.1(b)
(Failure to Maintain Personal Integrity), “[s]uspension is appropriate
when a lawyer knowingly engages in . . . conduct involving
dishonesty, fraud, deceit, or misrepresentation that seriously
adversely reflects on the lawyer’s fitness to practice.” Standard
6.1(b) (False Statements, Fraud, and Misrepresentation) provides
that “[s]uspension 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.” Also, Standard 6.2(b) (Abuse of the Legal Process)
states that “[s]uspension is appropriate when a lawyer knowingly
violates a court order or rule and causes injury or potential injury
to a client or a party or causes interference or potential interference
with a legal proceeding.” Last, we look to Standard 7.1(b)
- 17 - (Deceptive Conduct or Statements and Unreasonable or Improper
Fees), which states that “[s]uspension is appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed as a
professional and causes injury or potential injury to a client, the
public, or the legal system.”
Here, Martinez knowingly engaged in dishonest conduct that
seriously adversely reflects on her ability to practice law when she
delayed returning the USB drive to the firm and then ultimately
returned it empty. Moreover, Martinez misrepresented to the court
that she was the clients’ attorney in cases where she had no basis
to make the representation, and she delayed correcting the
misrepresentation by withdrawing from the case. Additionally, she
knowingly violated her obligation to appear for her court-ordered
deposition, causing a delay in the proceedings and affecting the
opposing party. Based on these actions, the Standards support the
imposition of a suspension.
Aggravating and Mitigating Factors
We next consider the referee’s findings as to the applicable
aggravating and mitigating circumstances. “[A] referee’s findings of
mitigation and aggravation carry a presumption of correctness and
- 18 - will be upheld unless clearly erroneous or without support in the
record.” Germain, 957 So. 2d at 621.
As to aggravation, the referee found four factors under
Standard 3.2 (Aggravation): (1) dishonest or selfish motive; (2)
pattern of misconduct; (3) submission of false evidence, false
statements, or other deceptive practices during the disciplinary
process; and (4) refusal to acknowledge the wrongful nature of the
conduct. The Bar argues that the referee should have also found
multiple offenses as an aggravating factor. And Martinez argues
that submission of false evidence or statements should not have
been found as an aggravating factor. We do not find error in either
of the referee’s findings regarding these factors.
Next, the referee found five mitigating factors under Standard
3.3 (Mitigation): (1) absence of a prior disciplinary record; (2)
personal or emotional problems; (3) inexperience in the practice of
law; (4) unreasonable delay in the disciplinary proceedings; and (5)
imposition of other penalties or sanctions. The Bar argues that the
referee should not have found personal or emotional problems or
unreasonable delay in the disciplinary proceedings as mitigating
factors. We find error only in the referee’s finding of unreasonable
- 19 - delay as a mitigating factor. That factor applies only when “the
respondent did not substantially contribute to the delay.” Fla. Std.
Imposing Law. Sancs. 3.3(b)(9). The Bar delayed initiating
disciplinary action against Martinez until the litigation between her
and Silverberg concluded. However, Martinez was responsible for
dragging out the civil litigation, which in turn delayed this
disciplinary process. Therefore, because Martinez contributed to
the delay, we find that the referee erred in finding unreasonable
delay as a mitigating factor.
Case Law
Finally, in determining the appropriate sanction, we look to
prior cases for guidance.
In prior cases involving similar misconduct, we have imposed
suspensions in a range of lengths. For instance, in Florida Bar v.
Forrester, 818 So. 2d 477 (Fla. 2002), we suspended a lawyer for 60
days who intentionally misrepresented the location of an exhibit
during a deposition. We suspended a lawyer for 91 days in Florida
Bar v. James, 329 So. 3d 108 (Fla. 2021), after the lawyer engaged
in a pattern of dishonest conduct by instructing a deponent on how
to answer questions, lying to opposing counsel when asked if the
- 20 - two were texting during a deposition, and falsely stating that he was
only texting his daughter. And in Florida Bar v. Marcellus, 249 So.
3d 538 (Fla. 2018), we suspended a lawyer for 18 months for his
failure to comply with a court order and to respond to discovery
requests despite orders compelling responses. In considering these
cases, along with the mitigation found in this case, specifically
Martinez’s inexperience in the practice of law as well as personal
and emotional problems, we have determined that a 90-day
suspension is appropriate in this case.
CONCLUSION
Accordingly, Martinez is hereby suspended from the practice of
law for 90 days. Martinez’s suspension will be effective 30 days
from the filing of this opinion so that she can close out her practice
and protect the interests of existing clients. If Martinez notifies this
Court in writing that she is no longer practicing and does not need
the 30 days to protect existing clients, this Court will enter an order
making the suspension effective immediately. Martinez shall fully
comply with rule 3-5.1(h) and, if applicable, rule 3-6.1. Further,
Martinez shall accept no new business from the date this opinion is
filed until she is reinstated.
- 21 - Judgment is entered for The Florida Bar, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300, for recovery of costs from
Alexa Martinez in the amount of $7,465.00, 3 for which sum let
execution issue.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS SUSPENSION.
Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff Counsel, and Mark Lugo Mason, Bar Counsel, The Florida Bar, Tallahassee, Florida,
for Complainant
Alexa Martinez, Miami, Florida,
for Respondent
3. See Fla. Bar v. Rotstein, 835 So. 2d 241, 247 (Fla. 2002) (concluding that awarding transcript costs was permissible).
- 22 -