The Florida Bar v. Jonathan Stephen Schwartz

• Court: Supreme Court of Florida
• Decided: February 17, 2022
• Docket: SC17-1391
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC17-1391 ____________

THE FLORIDA BAR, Complainant,

vs.

JONATHAN STEPHEN SCHWARTZ, Respondent.

February 17, 2022

PER CURIAM.

We have for review a referee’s report recommending that

Respondent, Jonathan Stephen Schwartz, receive a ninety-day

suspension following our disapproval of a prior referee’s report

finding that Schwartz did not violate the Rules Regulating the

Florida Bar (Bar Rules). We have jurisdiction. 1 The Florida Bar

(Bar) sought review of the referee’s report, seeking a three-year

suspension. Having reviewed both the record and our prior case

law, we agree with the Bar that a more severe sanction is

1. See art. V, § 15, Fla. Const. warranted, particularly in light of Schwartz’s prior disciplinary

record. Therefore, we disapprove the referee’s report recommending

a nonrehabilitative sanction and instead impose a three-year

suspension.

BACKGROUND

Schwartz, a criminal defense attorney who was admitted to the

Bar in 1986, became the subject of the instant Bar proceedings

based upon his use of two defense exhibits during a pretrial

deposition. While representing the defendant in State v. Virgil

Woodson, Circuit Case No. 13-2013-CF-012946-0001-XX (Miami-

Dade County, Florida), Schwartz created the exhibits, two black and

white photocopies of a police lineup. In each, Schwartz altered the

defendant’s picture. In one exhibit, he replaced the defendant’s face

with that of an individual whom witnesses other than the robbery

victim had identified as the perpetrator. In the other exhibit,

Schwartz changed the defendant’s hairstyle. However, the altered

photocopies used at the deposition retained the victim’s

identification of the defendant, including both her circle around

what had been the defendant’s picture and her signature at the

bottom of the lineup, as well as a police officer’s signature. In a

-2- complaint filed with the Court on July 27, 2017, the Bar alleged

that Schwartz’s use of the exhibits, without disclosing that the

photo lineups had been altered, violated Bar Rules 3-4.3

(Misconduct and Minor Misconduct) and 4-8.4(c) (“A lawyer shall

not . . . engage in conduct involving dishonesty, fraud, deceit or

misrepresentation . . . .”). We referred the matter to a referee for

further proceedings.

On review of a referee report recommending that Schwartz not

be found guilty of any ethics violations, the Court, in an opinion

dated November 7, 2019, disapproved the referee’s findings of fact

and recommendation. Fla. Bar v. Schwartz, 284 So. 3d 393, 394

(Fla. 2019). First, we held that the referee “improperly focused

upon Schwartz’s asserted motive” to provide constitutionally

effective assistance of counsel. Id. at 396. Rather, his subjective

motive was not determinative. Moreover, we concluded that it was

an “undisputed fact that Schwartz knowingly and deliberately

created the defense exhibits by altering photocopies of the police

lineups and showing them to the victim at the deposition” and that

the exhibits were “deceptive on their face.” Id. Thus, Schwartz’s

intent to create what were deceptive exhibits in themselves led to

-3- the inescapable conclusion that he violated Bar Rules 3-4.3 and 4-

8.4(c) as alleged. Based upon our disposition upon the referee’s

report on the issue of guilt, we remanded the case “to a newly

appointed referee for a hearing limited to a determination of

recommended discipline.” Id. at 398.

Following the appointment of a new referee and a sanctions

hearing, the successor referee ultimately recommended that

Schwartz receive a ninety-day suspension, to be followed by a one-

year term of probation. The Bar sought review of the referee’s

recommendation, arguing that a three-year, rehabilitative

suspension is warranted. For the reasons discussed below, we

disapprove the referee’s report and instead impose a three-year

The sanction hearing was held on August 21, 2020. 2 In

addition to testifying himself, Schwartz presented the testimony of

family, friends, current employees, a former client, a judicial officer,

2. At the sanction hearing the referee also conducted a hearing in another pending Bar disciplinary case against Schwartz, Florida Bar v. Schwartz, No. SC19-983, pertaining to an alleged advertising violation. Review of the referee’s report in that case is currently stayed pending the disposition of the instant case.

-4- and a mental health professional. Schwartz also presented

numerous letters authored by friends and colleagues. The Bar did

not proffer any evidence, instead arguing case law in support of the

request that the referee recommend a three-year suspension.

REFEREE’S FINDINGS AND RECOMMENDED SANCTION

Having considered testimony and argument at the sanction

hearing, the successor referee subsequently filed her report on

October 16, 2020. In determining the recommended sanction, the

referee considered Schwartz’s personal history, prior discipline, and

the existence of aggravating and mitigating factors pursuant to the

Florida Standards for Imposing Lawyer Sanctions (Standards). The

referee also considered existing case law.

As found by the referee, Schwartz’s prior disciplinary history is

as follows.

In an order dated May 29, 2012, in case number SC11-2143,

the Court suspended Schwartz for ninety days based upon a

consent judgment. Florida Bar v. Schwartz, 91 So. 3d 134 (Fla.

2012) (table). Schwartz admitted violating Bar Rules 4-1.8(a)

(Conflict of Interest; Prohibited and Other Transactions; Business

Transactions With or Acquiring Interest Adverse to Client), 4-

-5- 3.3(a)(1) (Candor Toward the Tribunal; False Evidence; Duty to

Disclose), 4-4.1(a) (Truthfulness in statements to others), 4-8.4(a)

(“A lawyer shall not . . . violate or attempt to violate the Rules of

Professional Conduct . . . .”), 4-8.4(b) (“A lawyer shall not . . .

commit a criminal act that reflects adversely on the lawyer’s

honesty, trustworthiness, or fitness as a lawyer in other respects . .

. .”), and 4-8.4(c) (“A lawyer shall not . . . engage in conduct

involving dishonesty, fraud, deceit, or misrepresentation . . . .”).

According to the “Report of the Referee Accepting Consent

Judgment” approved by the Court in that case, Schwartz twice

notarized a Uniform Child Custody Jurisdiction Act Affidavit and

signed “JS for E. Ocampo” where his client, who was outside of the

United States and unavailable to sign the affidavit, was required to

sign. Schwartz then filed each affidavit with the defective

notarizations, thereby making knowing misrepresentations to the

court.

Previously, on June 20, 2002, the Court approved a consent

judgment and imposed a public reprimand in case number

SC02-787. Schwartz violated Bar Rules 4-3.1 (Meritorious claims

and contentions), 4-3.3(a)(1), 4-4.1(a), 4-4.4 (Respect for rights of

-6- third persons), 4-5.6 (Restrictions on right to practice), 4-8.4(a), and

4-8.4(c).

And, on April 10, 1997, the Court issued its order in case

number SC60-90204, approving a consent judgment and imposing

a public reprimand for violations of Bar Rules 4-3.3(a), 4-3.4(c)

(Fairness of Opposing Party and Counsel), 4-8.4(c), and 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 . . .

.”).

In addition, Schwartz received an admonishment for minor

misconduct by the Eleventh Judicial Circuit Grievance Committee

“B” on March 29, 1995, in The Florida Bar File No. 1994-

71,026(11B), for violation of Bar Rule 4-8.4(d).3

With respect to mitigating factors under Standard 3.3, the

referee found two, namely (b)(5) (“full and free disclosure to the bar

3. Schwartz also received admonishments for minor misconduct for violation of advertising rule requirements of the Bar Rules, on May 23, 2007, by the Second Judicial Circuit Grievance Committee “S”, in The Florida Bar File No. 2007-90,330(02S), and on December 19, 1996, by the Eleventh Judicial Circuit Grievance Committee “B”, in The Florida Bar File No. 1996-71,789(11B).

-7- or cooperative attitude toward the proceedings”), and (b)(7)

(“character or reputation”). Further, the referee found the following

two non-Standard matters as mitigating: “The length of time this

disciplinary case has been pending has extracted a considerable toll

on Respondent [as ][h]e indicated that he has had difficulties and

has spent sleepless nights, as a result [of] the case,” and

“Respondent testified that he is trying to limit the number of cases

and kind of cases as well attempting [to] solve problems before they

arise.” Turning to aggravating factors under Standard 3.2, the

referee found three factors, namely (b)(1) (“prior disciplinary

offenses”), (b)(3) (“a pattern of misconduct”), and (b)(9) (“substantial

experience in the practice of law”).

Finally, while acknowledging that this Court has imposed

harsher sanctions more recently than those previously imposed, the

referee distinguished the cases relied upon by the Bar and cited the

following cases in support of a nonrehabilitative suspension. See

Fla. Bar v. MacNamara, 132 So. 3d 165, 171 (Fla. 2013) (lawyer

suspended for ninety days based on his representation to the Bar

pertaining to his filing estate tax return); Fla. Bar v. Cocalis, 959 So.

2d 163 (Fla. 2007) (attorney’s handling of documents related to

-8- personal injury lawsuit inadvertently mailed to him and phone call

to adverse party’s treating physician warranted public reprimand);

Fla. Bar v. Committe, 916 So. 2d 741 (Fla. 2005) (lawyer suspended

for ninety days based on knowing failure to comply with discovery

requests and having filed two frivolous lawsuits). As discussed in

our analysis below, we disapprove the referee’s recommended

ninety-day nonrehabilitative suspension, and instead determine

that a three-year suspension is appropriate under the facts of the

case and existing case law.

ANALYSIS

In imposing a sanction in an attorney discipline case, the

Court considers the following factors: “(a) duties violated; (b) the

lawyer’s mental state; (c) the potential or actual injury caused by

the lawyer’s misconduct; [and] (d) the existence of aggravating and

mitigating circumstances.” Fla. Stds. Imposing Law. Sancs. 1.1. As

we have often explained, in reviewing a referee’s recommended

discipline, the Court’s scope of review is broader than that afforded

to the referee’s findings of fact because, ultimately, it is the Court’s

responsibility to order the appropriate sanction. See Fla. Bar v.

Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, § 15,

-9- Fla. Const. At the same time, the Court will generally not second-

guess the referee’s recommended discipline, as long as it has a

reasonable basis in existing case law and the Standards. See Fla.

Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999). Significantly,

however, the Court views cumulative misconduct more seriously

than an isolated instance of misconduct, and cumulative

misconduct of a similar nature warrants an even more severe

sanction than might dissimilar conduct. Fla. Bar v. Walkden, 950

So. 2d 407, 410 (Fla. 2007).

Therefore, we agree with the successor referee that Schwartz’s

misconduct under the Standards warrants a suspension, 4 while

4. See, e.g., Standards 5.1(b) (“Suspension is appropriate when a lawyer knowingly engages in criminal conduct which is not included elsewhere in this subdivision or other conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.”); 6.1(b) (“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.”); 7.1(b) (“Suspension 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.”); and 8.1(b) (“Suspension is appropriate when a lawyer has been publicly reprimanded for the same or similar conduct and engages in a further similar act of misconduct

- 10 - “the length of the suspension imposed is guided by case law and the

Court’s discretion.” Fla. Bar v. Marcellus, 249 So. 3d 538, 545 (Fla.

2018). Based upon the record before us, we conclude that in

recommending a nonrehabilitative suspension the referee did not

give Schwartz’s prior misconduct proper consideration in light of

existing case law.

As the referee found, on three prior occasions, in case

numbers SC11-2143, SC02-787, and SC60-90204, Schwartz

violated numerous Bar Rules, which in each instance included

those rule violations that the Court has held are considered the

most serious. Indeed,

[i]n considering violations of rules 4–8.4(c) and 4–8.4(d), we have explicitly stated that “basic, fundamental dishonesty . . . is a serious flaw, which cannot be tolerated [because] ‘[d]ishonesty and a lack of candor cannot be tolerated by a profession that relies on the truthfulness of its members.’ ”

Fla. Bar v. Berthiaume, 78 So. 3d 503, 510 (Fla. 2011) (quoting Fla.

Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002)). Further, the

Court has made plain that “[d]ishonest conduct demonstrates the

that cause injury or potential injury to a client, the public, the legal system, or the profession.”).

- 11 - utmost disrespect for the court and is destructive to the legal

system as a whole.” Fla. Bar v. Head, 84 So. 3d 292, 302 (Fla.

2012) (quoting Fla. Bar v. Head, 27 So. 3d 1, 8-9 (Fla. 2010)). This

cumulative misconduct by Schwartz, of the most egregious type

(dishonesty) and where he has previously received the longest

nonrehabilitative suspension permissible under the rules, see Rule

Regulating the Florida Bar 3-5.1(e) (“A suspension of 90 days or less

does not require proof of rehabilitation or passage of the Florida bar

examination and the respondent will become eligible for all

privileges of members of The Florida Bar on the expiration of the

period of suspension.”), surely necessitates an escalated sanction

by this Court for that same repeated type of misconduct.

Furthermore, the cases distinguished by the referee actually

provide a reasonable basis for a rehabilitative suspension, while the

cases relied upon do not support the referee’s recommendation of a

second ninety-day suspension.

For example, in Florida Bar v. Hmielewski, 702 So. 2d 218

(Fla. 1997), the Court held that a three-year suspension was

warranted based on the lawyer’s deliberate misrepresentations in a

medical malpractice action regarding the location of his client’s

- 12 - deceased parent’s medical records. The referee in this case

distinguished Hmielewski on the basis that “records were not

hidden in this case, and the prosecutor had access to the original

line-up.” However, only upon close inspection of the photocopied

lineups are Schwartz’s alterations apparent, particularly since the

exhibits retain the victim’s circled identification and the signature of

both the victim and police officer, and Schwartz did not disclose to

the prosecutor that the exhibits had been altered until confronted

during the deposition.

In Florida Bar v. Dupee, 160 So. 3d 838 (Fla. 2015), the Court

imposed a one-year suspension, where the lawyer knowingly filed

her client’s inaccurate financial statement in a marriage dissolution

action, deliberately withheld financial documents, knowingly

allowed the client to testify falsely at deposition, and failed to notify

the husband’s counsel that the lawyer’s client had possession of

disputed property. Id. at 854. The Court rejected the referee’s

recommended ninety-day suspension, notwithstanding that there

was no prior disciplinary record. As with Hmielewski, we find the

referee’s basis for distinguishing Dupee—that “the initial lineup and

- 13 - the altered lineup were both available to the prosecutor at some

point”—unavailing.

The Bar also cited cases imposing one-year suspensions where

the lawyers either withheld evidence or engaged in

misrepresentations before the trial court. See, e.g., Fla. Bar v.

Dunne, No. SC18-1880, 2020 WL 257785 (Fla. Jan. 16, 2020)

(uncontested consent judgment); Fla. Bar v. Whitney, 132 So. 3d

1095 (Fla. 2013); Fla. Bar v. Cox, 794 So. 2d 1278 (Fla. 2001). The

referee distinguished these cases, relying on factual differences.

However, in each case, as with Schwartz’s conduct, the lawyers

acted dishonestly.

Lastly, the successor referee’s reliance upon case law imposing

a public reprimand or nonrehabilitative suspension is inapposite.

First, we observe that both Committe and Cocalis were decided more

than a decade ago. In addition, in Cocalis the referee recommended

that the lawyer not be found to have violated a number of Bar rules,

including Bar Rule 4-8.4, and the Court did not address whether

that was erroneous, concluding “that Cocalis’s conduct violated 3-

4.3 and that his misconduct was more than ‘minor,’ making true

diversion inappropriate.” 959 So. 2d at 166. Similarly, in

- 14 - Committe, the lawyer did not violate Bar Rule 4-8.4(c), and he had

no prior disciplinary record. 916 So. 2d at 744. Finally, in

MacNamara, while the lawyer was found to have violated Bar Rule

4-8.4(c) twice, he received the ninety-day suspension, as opposed to

the referee’s recommended two-year probationary period, because

he admitted his misrepresentations, did not have a disciplinary

history, and the misconduct occurred six years prior to the filing of

the Bar’s complaint. 132 So. 3d at 172-73.

Finally, we reiterate that the requirement to provide zealous

representation, as contemplated under our ethical rules, see Florida

Bar v. Roberts, 689 So. 2d 1049, 1051 (Fla. 1997) (“Failing to

represent one’s client zealously, failing to communicate effectively

with one’s client, and failing to provide competent representation

are all serious deficiencies, even when there is no evidence of

intentional misrepresentation or fraud.”), does not excuse engaging

in misconduct, irrespective of one’s intent to benefit the client. As

we have previously observed, “[w]e must never permit a cloak of

purported zealous advocacy to conceal unethical behavior.” Fla.

Bar v. Buckle, 771 So. 2d 1131, 1133 (Fla. 2000). At the same time,

we have recognized that “ethical problems may arise from conflicts

- 15 - between a lawyer’s responsibility to a client and the lawyer’s special

obligations to society and the legal system. . . . ‘Such issues must

be resolved through the exercise of sensitive professional and moral

judgment guided by the basic principles underlying the rules.’ ” Id.

at 1133-34 (quoting Fla. Bar v. Machini, 635 So. 2d 938, 940 (Fla.

1994)). In the instant case, we are of the opinion, in light of

Schwartz’s history of repeated transgressions and the increasing

egregiousness of each infraction, that he has been an overzealous

advocate incapable of seeing the forest for the trees.

CONCLUSION

Accordingly, Schwartz is hereby suspended from the practice

of law for a period of three years, in addition to the term of

probation and special conditions thereof identified by the referee, to

be completed prior to seeking reinstatement. The suspension will

be effective thirty days from the filing of this opinion so that

Schwartz can close out his practice and protect the interests of

existing clients. If Schwartz notifies this Court in writing that he is

no longer practicing and does not need the thirty days to protect

existing clients, this Court will enter an order making the three-year

suspension effective immediately. Schwartz shall fully comply with

- 16 - Rule Regulating the Florida Bar 3-5.1(h). Respondent shall also

fully comply with Rule Regulating the Florida Bar 3-6.1, if

applicable. Further, Schwartz shall accept no new business from

the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson

Street, Tallahassee, Florida 32399-2300, for recovery of costs from

Jonathan Stephen Schwartz in the amount of $7,540.50, for which

sum let execution issue.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, 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, The Florida Bar, Tallahassee, Florida, and Jennifer R. Falcone, Bar Counsel, The Florida Bar, Miami, Florida; and Chris W. Altenbernd of Banker Lopez Gassler, P.A., Tampa, Florida,

for Complainant

Benedict P. Kuehne, Michael T. Davis, and Johan D. Dos Santos of Kuehne Davis Law, P.A., Miami, Florida,

for Respondent

- 17 -