Supreme Court of Florida ____________
No. SC2019-0983 ____________
THE FLORIDA BAR, Complainant,
vs.
JONATHAN STEPHEN SCHWARTZ, Respondent.
____________
No. SC2021-0484 ____________
January 18, 2024
PER CURIAM.
We have for review two referee’s reports, by different referees,
recommending that Respondent, Jonathan Stephen Schwartz, be found guilty of professional misconduct and suspended from the
practice of law. We have jurisdiction. See art. V, § 15, Fla. Const.
As discussed below, we approve the referees’ findings of fact
and recommendations as to guilt. But we disapprove in part the
findings in aggravation and mitigation, and we disapprove each
referee’s suspension recommendation. Over time, Schwartz has
engaged in increasingly inappropriate conduct under the guise of
zealous representation. Most notably, a three-year suspension was
recently imposed on Schwartz for deceptive conduct in connection
with a judicial proceeding. See Fla. Bar v. Schwartz (Schwartz I),
284 So. 3d 393 (Fla. 2019); Fla. Bar v. Schwartz (Schwartz II), 334
So. 3d 298, 299 (Fla. 2022). Schwartz’s cumulative transgressions
are egregious and will not be tolerated. Based on Schwartz’s
extensive disciplinary history and escalating pattern of misconduct,
we disbar him for his misconduct in these two cases.
I. BACKGROUND
Case No. SC2019-0983
On October 16, 2017, Schwartz sent an unsolicited text
message to the Bar complainant’s cell phone. The message
included a photo of the complainant’s police report and the text “It’s
-2- Jonathan Schwartz. I am a lawyer for battery cases. If you would
like to consult regarding the case . . . please call or text.” The
referee found that the text message violated the advertising rules as
follows: (1) it did not include “Advertisement” as the first word in
the text, as required by Rule Regulating The Florida Bar (Bar Rule)
4-7.18(b)(2)(B); (2) it did not include any of the required information
regarding Schwartz’s experience and qualifications, in violation of
Bar Rule 4-7.18(b)(2)(C); (3) it did not include the sentence “If you
have already obtained a lawyer, please disregard this text,” as
required at the time by Bar Rule 4-7.18(b)(2)(E)1; (4) it did not state
how Schwartz obtained the complainant’s information, in violation
of now designated Bar Rule 4-7.18(b)(2)(G)2; and (5) it had not been
1. Bar Rule 4-7.18(b)(2)(E), as relevant to this proceeding, previously provided as follows: “The first sentence of any written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member must be: ‘If you have already retained a lawyer for this matter, please disregard this letter.’ ” Effective August 21, 2023, that requirement is no longer in place. See In re Amends. to Rules Regul. Fla. Bar – Subchapter 4-7 Information About Legal Servs., 366 So. 3d 997, 998 (Fla. 2023).
2. At the time of the text advertisement, the rule was designated Bar Rule 4-7.18(b)(2)(H).
-3- filed for review by the Bar as required by Bar Rule 4-7.19(a). The
referee rejected Schwartz’s argument that the advertising rules,
specifically citing Bar Rule 4-7.11 (Application of Rules), do not
apply to text messages because the rules do not expressly identify
them, and that he was entitled to protection under the “Safe
Harbor” provisions of Bar Rule 4-7.16 (Presumptively Valid
Content). 3
Turning to the issue of sanctions, the referee considered
Standards for Imposing Lawyer Sanctions (Standards) 8.1(c)(2)
(Violation of Court Order or Engaging in Subsequent Same or
Similar Misconduct; Public Reprimand) and 9.2(c)(2)
(Communications about a Lawyer’s Services; Public Reprimand). In
addition, the referee found three aggravating factors: (1) prior
disciplinary offenses, (2) pattern of misconduct, and (3) substantial
experience in the practice of law; and one mitigating factor,
3. Bar Rule 4-7.16(a) creates a “safe harbor” for lawyers. According to the Comment under the rule’s Editors’ Notes, “[a] lawyer desiring a safe harbor from discipline may choose to limit the content of an advertisement to the information listed in this rule and, if the information is true, the advertisement complies with these rules.”
-4- character or reputation. The referee also considered as mitigating
the following factors, some of which are specific to advertising cases
under Standard 9.6 (Mitigation and Aggravation): (1) Schwartz
believed that text messages were not subject to the advertising rules
and that the text message at issue fell under the Safe Harbor
provisions of Bar Rule 4-7.16; (2) Schwartz ceased sending any
other text messages seeking employment; (3) Schwartz did not send
any other messages to the complainant; (4) Schwartz explained his
position with respect to text messages to the complainant’s lawyer
upon receipt of his email; and (5) Schwartz “is a hard-working
attorney, works long hours, and is dedicated in representing his
clients.” The referee recommended that Schwartz receive a ten-day
suspension to run concurrently with the suspension anticipated to
be entered in case number SC2017-1391, where the same referee
had recommended finding Schwartz guilty of violating Bar Rules in
relation to his alterations to photocopies of a police lineup. 4 Neither
4. A different referee presided over case number SC2021- 0484. The Court had not, however, imposed the three-year suspension in case number SC2017-1391 at the time either referee filed their respective reports. See Schwartz II, 334 So. 3d 298.
-5- party sought review of the referee’s report in case number SC2019-
0983.
Case No. SC2021-0484
Schwartz, who had filed a notice of appearance on behalf of
the defendant in State v. Demarris Maloy, Case No.
132016CF021853A000XX, in Miami-Dade County Circuit Court,
met with both client Maloy and Maloy’s co-defendant, Gabriel
Antwan Johnson, on or about June 12, 2018. Johnson was
charged in Case No. 132016CF021853B000XX and was represented
by the Miami-Dade County Public Defender’s Office at the time.
While Johnson appeared at Schwartz’s office with Maloy, neither
Johnson’s lawyer, Assistant Public Defender Kristine Del Sol, nor
any other lawyer from the Public Defender’s Office, was present.
Schwartz did not call Del Sol or make any effort to contact her or
her office with respect to Johnson’s appearance at his office despite
knowing that he was represented.
At that time, Johnson told Schwartz that he wanted to testify
on behalf of Schwartz’s client. Schwartz prepared a Byrd 5 Affidavit,
5. See Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970). A Byrd Affidavit is used to obtain a severed trial, based on a
-6- executed by Johnson and notarized by Schwartz’s associate, which
averred that Johnson wanted to testify on behalf of Maloy,
acknowledged his Fifth Amendment right against self-incrimination,
and sought to have his case adjudicated before that of his co-
defendant to extinguish his right to remain silent.
Schwartz filed the Byrd Affidavit with the trial court in his
client’s case on the same day Johnson came to Schwartz’s office. It
was never filed in Johnson’s case. Schwartz also filed a motion to
sever in Maloy’s case on or about July 9, 2018, attaching the Byrd
Affidavit as an exhibit. A hearing was held on Schwartz’s motion, in
which Johnson’s public defender advised the trial court that the
affidavit was obtained without her knowledge, that she was
unaware that her client had visited Schwartz’s office, and that she
was only aware of the affidavit due to notification by the assistant
state attorney. Under oath, Johnson acknowledged that he was
defendant’s desire to use his co-defendant’s potentially exculpatory testimony, and it must show the following: “(1) a bona fide need for the testimony, (2) the substance of the testimony, (3) its exculpatory nature and effect, and (4) that the co-defendant will in fact testify if the cases are severed.” Taylor v. State, 472 So. 2d 814, 815 (Fla. 3d DCA 1985) (citing Byrd).
-7- represented by counsel at the time the affidavit was executed and
that his lawyer was not present. Schwartz, who proffered that
Johnson would testify that the drugs at issue in the criminal case
belonged to him and not to Maloy, argued that it was irrelevant for
purposes of his motion to sever whether he acquired that
information from Johnson. Schwartz further proffered that he had
recommended that Johnson call his attorney, though no such call
was made.
Following referral to a referee and the portion of the final
hearing held on the issue of guilt, the referee recommended that
Schwartz be found guilty of violating Bar Rules 4-4.2(a)
(Communication with Person Represented by Counsel) and 4-8.4(d)
(providing that a lawyer shall not “engage in conduct in connection
with the practice of law that is prejudicial to the administration of
justice”).
Specifically, the referee recommended finding that Schwartz
violated Bar Rule 4-4.2(a) because he was aware that Johnson was
represented by the Public Defender’s Office when he and Maloy met
at Schwartz’s office, and while Johnson intended on firing his
lawyer, Johnson had not done so yet. Schwartz knew this based on
-8- Johnson’s statement about being unhappy with the Public
Defender’s Office, and it was evidenced by the fact that Schwartz
recommended that Johnson call his lawyer. The referee further
found that the preparation of the Byrd Affidavit “in and of itself is
the subject of the representation.”
The referee also recommended finding that Schwartz violated
Bar Rule 4-8.4(d) when he engaged in the impermissible
communication with Johnson and had him swear out an affidavit
without the benefit of his own lawyer’s advice. Schwartz also
violated the rule when he immediately filed the affidavit and sought
to use it in court proceedings to sever his client’s case from his co-
defendant’s, also without communicating with Johnson’s lawyer.
After a separate hearing on the matter of sanctions and
without the benefit of this Court’s decision on discipline in case
number SC2017-1391, the referee recommended a ninety-day
suspension. The referee considered the following Standards, all
limited to imposition of a suspension, prior to recommending
discipline: Standards 4.3(b) (Failure to Avoid Conflicts of Interest),
6.1(b) (False Statements, Fraud, and Misrepresentation), 6.2(b)
(Abuse of the Legal Process), 7.1(b) (Deceptive Conduct or
-9- Statements and Unreasonable or Improper Fees), and 8.1(b)
Similar Misconduct). The referee did not discuss the Standards
cited or otherwise explain how a suspension was the presumptive
sanction under the Standards.
In addition, the referee found three aggravating factors: (1)
prior disciplinary offenses, (2) a pattern of misconduct, and (3)
substantial experience in the practice of law. Regarding mitigating
factors, the referee found: (1) absence of dishonest or selfish motive,
(2) personal or emotional problems, (3) timely good faith effort to
make restitution or to rectify the consequences of the misconduct,
(4) full and free disclosure to the Bar or cooperative attitude toward
the proceedings, (5) character or reputation, (6) interim
rehabilitation, (7) imposition of other penalties or sanctions, and (8)
remorse.
The Bar seeks review of the recommended discipline, while
Schwartz seeks cross-review of the findings of fact and the guilt
recommendations.
- 10 - II. ANALYSIS
A. Findings of Fact and Recommendations as to Guilt
The Court’s review of the referee’s findings of fact as to each
rule violation is limited, and if the referee’s findings of fact are
supported by competent, substantial evidence in the record, this
Court will not reweigh the evidence and substitute its judgment for
that of the referee. Fla. Bar v. Rush, 361 So. 3d 796, 801 (Fla.
2023) (citing Fla. Bar v. Alters, 260 So. 3d 72, 79 (Fla. 2018)).
“When reviewing 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. Jacobs, 370 So.
3d 876, 883 (Fla. 2023) (citing Fla. Bar v. Patterson, 257 So. 3d 56,
61 (Fla. 2018)). Ultimately, the party challenging the referee’s
findings of fact and conclusions as to guilt has the burden 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. Arugu, 350 So. 3d 1229, 1232 (Fla. 2022)
(quoting Fla. Bar v. Germain, 957 So. 2d 613, 620 (Fla. 2007)).
- 11 - Case No. SC2019-0983
Neither party sought review of the referee’s report in this case.
Therefore, the referee’s findings of fact are approved along with the
referee’s recommendation that Schwartz be found guilty of the
advertising rule violations. Cf. R. Regulating Fla. Bar 3-7.7(c)(1)
(providing in pertinent part that “[t]he filing of the notice or cross-
notice to seek review is jurisdictional, and the party who fails to
timely file notice loses supreme court review as a right”).
In seeking cross-review in this case, Schwartz argues that the
evidence does not support the findings of fact and that the Bar
failed to prove a violation of Bar Rules 4-4.2(a) and 4-8.4(d).
Bar Rule 4-4.2(a) prohibits a lawyer in representing his or her
client from communicating about the subject of the representation
with a person known to be represented by other counsel without
consent of that counsel. The Comment to the rule recognizes that
“[t]he rule applies even though the represented person initiates or
consents to the communication.” R. Regulating Fla. Bar 4-4.2,
Editors’ Notes, Comment.
- 12 - Here, the record evidence—including Johnson’s testimony
before the trial court, Schwartz’s testimony before the referee, and
the testimony of assistant state attorney Daniel Walsh about an
email sent to him, assistant public defender Del Sol, and Schwartz
a month earlier pertaining to a different motion in the cases—
established that Schwartz knew that Johnson was represented by
the Public Defender’s Office, that Johnson did not know the name
of his attorney and was unhappy with his representation, and that
Johnson intended to hire, but had not yet hired, private counsel.
Despite having initially advised Johnson to contact his lawyer and
having told Johnson he could not speak with him about the case
since he was represented by counsel, Schwartz met with Johnson
regarding the criminal case and had him execute an affidavit that
would directly impact the two co-defendants’ cases.
Regarding Schwartz’s argument that the affidavit was
necessary under Florida Rule of Criminal Procedure 3.152(b)
(Severance of Defendants) to obtain a severance in his client’s case,
it should go without saying that that provision does not negate the
requirement that it be accomplished in accord with the ethics rules.
- 13 - Further, Schwartz’s reliance upon In re Decker, 212 So. 3d 291
(Fla. 2017), is misplaced. In Decker, we found that “the evidence is
uncontroverted that then-attorney Decker was directly and
unequivocally informed by [an individual who was represented by
counsel at the time] that he was no longer represented by counsel of
record.” Id. at 306. Here, Schwartz received no such direct and
unequivocal notification that Johnson was no longer represented by
counsel. In fact, Schwartz knew the opposite—that Johnson was
represented by the Public Defender’s Office.
Therefore, the referee’s findings of fact are supported by
competent, substantial evidence and are sufficient to support the
recommendation of guilt. We approve the referee’s factual findings
and we find Schwartz guilty of violating Bar Rule 4-4.2(a).
Next, Bar Rule 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, the evidence unequivocally
demonstrates that Schwartz improperly communicated with a
person he knew to be represented by another lawyer, without that
lawyer’s consent, and pertaining to the subject of the
representation. That improper conduct pertained to a criminal
- 14 - prosecution, and in the course thereof Schwartz was not forthright
with the trial court as to the facts underlying his attempt to have
his client’s case severed from that of his co-defendant.
competent, substantial evidence and are sufficient to support the
recommendation of guilt. We approve the referee’s findings of fact
and conclude that Schwartz violated Bar Rule 4-8.4(d). See Fla. Bar
v. Feinberg, 760 So. 2d 933, 938 (Fla. 2000) (holding that it was
prejudicial to the administration of justice for a state prosecutor to
meet with defendant who he knew was represented, even if the
defendant encouraged it and the prosecutor believed he had a good
motive); Fla. Bar v. Nunes, 661 So. 2d 1202, 1203-04 (Fla. 1995)
(upholding violations of Bar Rules 4-4.2(a) and 4-8.4(d)).
B. Discipline
We now consider whether we should approve the referees’
recommended discipline of a ten-day suspension and a ninety-day
suspension in these cases. Prior to making a recommendation as to
discipline, referees must consider the Standards for Imposing
Lawyer Sanctions, which discuss the presumptive sanctions in
relation to the misconduct established and are subject to
- 15 - aggravating and mitigating factors, and this Court’s existing case
law. See Fla. Bar v. Strems, 357 So. 3d 77, 90 (Fla. 2022). The
reason for the Court’s inquiry, even in an uncontested case, is
because the Court’s review of a referee’s recommended discipline is
broader than review of the referee’s findings of fact, as it is
ultimately this Court’s responsibility to determine the appropriate
discipline. See Alters, 260 So. 3d 72, 83 (citing Fla. Bar v.
Anderson, 538 So. 2d 852, 854 (Fla. 1989)); see also art. V, § 15,
Fla. Const.
In addition, the Court “also considers prior misconduct and
cumulative misconduct as relevant factors, and deals more severely
with cumulative misconduct than with isolated misconduct.” Fla.
Bar v. Wolfe, 759 So. 2d 639, 645 (Fla. 2000) (citation and internal
quotation marks omitted). As a matter of our discretion, we can
impose a combined sanction for all cases and determine “the
appropriate discipline from the totality of the conduct as though all
of the charges had been presented to the Court in one proceeding.” 6
6. Currently pending before the referee who presided over case number SC2021-0484 is the complaint filed by the Bar against Schwartz in case number SC2022-1488. At oral argument Schwartz requested that the instant case(s) not be held for
- 16 - Strems, 357 So. 3d at 90 (quoting Fla. Bar v. Greenspahn, 396 So.
2d 182, 183 (Fla. 1981)).
Before addressing the recommended discipline in the two
instant cases, we must note Schwartz’s history of prior misconduct
and that he is currently under a three-year suspension. See
Schwartz II, 334 So. 3d at 299. Most recently, on February 17,
2022, the Court disapproved a recommended ninety-day
suspension and instead suspended Schwartz for three years based
upon his use of two defense exhibits during a pretrial deposition
held in February 2015:
Schwartz created the exhibits, two black and white photocopies of a police lineup. In each, Schwartz altered the defendant’s [his client’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.
resolution of the case before the referee, and the referee in that unperfected case, with the agreement of both parties, sought and obtained extensions to file her report.
- 17 - Id. at 300. In disapproving a prior referee’s report, we explained
that the exhibits were “deceptive on their face” and “[b]y their very
nature, they conveyed the false message that the substituted
photograph was the photograph that had been previously identified
by the victim.” Schwartz I, 284 So. 3d at 396-97. Because
Schwartz had previously received the longest nonrehabilitative
suspension possible, we ultimately determined that Schwartz’s
misconduct related to the altered exhibits warranted a rehabilitative
suspension of three years. Schwartz II, 334 So. 3d at 303.
Prior to the three-year suspension, Schwartz’s disciplinary
record resulted from consent judgments or otherwise uncontested
reports. In case number SC2011-2143, on May 29, 2012, the Court
suspended Schwartz for ninety days for having filed affidavits that
included deficient and misrepresented notarizations for a client in a
paternity action, as well as having loaned money to his client. On
May 23, 2007, Schwartz received an admonishment for minor
misconduct for the dissemination of a direct mail advertisement
with numerous violations, including misleading statements. In case
number SC2002-0787, Schwartz received a public reprimand on
June 20, 2002, for certain behavior arising from a business dispute.
- 18 - There, Schwartz made numerous unsubstantiated complaints
against his former law partners and made an additional
misrepresentation before a judge stating that the former partners
were under criminal investigation despite being informed by police
that there was no such investigation. And in case number SC1960-
90204, Schwartz received a public reprimand on April 10, 1997, for
failure to comply with numerous court orders. Lastly, Schwartz
received two admonishments for minor misconduct: one, by service
of a Grievance Committee Report of Minor Misconduct dated March
29, 1995, in The Florida Bar File No. 1994-71,026(11B), as well as
one in 1996 for an advertisement that had not been filed with the
advertising section of the Bar and did not contain the word
“advertisement” in red ink.
As has become all too clear to this Court, Schwartz’s
misconduct persistently involves varying degrees of dishonesty and
deceit.
Turning to case number SC2019-0983 at issue here, we
disagree with the referee’s recommended discipline of a ten-day
suspension. We note that while the referee cited Schwartz’s prior
ninety-day suspension imposed in 2012 involving dishonest
- 19 - conduct and reviewed cases reflecting that the Court views
cumulative misconduct more seriously than an isolated instance of
misconduct, the recommended ten-day suspension does not apply
that proposition or escalate the sanction to be imposed. Further,
prior case law would have supported a rehabilitative suspension
had we reviewed this case in isolation. See, e.g., Fla. Bar v. Dopazo,
232 So. 3d 258, 263 (Fla. 2017) (imposing a one-year suspension
for unethical violations of the solicitation rule); Fla. Bar v. Letwin,
70 So. 3d 578, 584-85 (Fla. 2011) (holding that sending letters
containing misleading statements and soliciting employment to over
900 prospective clients violated the rule pertaining to written
communications and warranted a one-year suspension); Wolfe, 759
So. 2d at 640, 646 (suspending attorney for one year for in-person
solicitation of clients in areas affected by tornadoes in violation of
advertising rules).
In addition to not assigning appropriate weight to the
aggravating factors of prior disciplinary offenses, pattern of
misconduct, and substantial experience in the practice of law, the
referee gave undue consideration as mitigating factors to Schwartz’s
subjective, uninformed belief that the advertising rules did not
- 20 - apply to text messages, and that he has a “public defender type of
practice” and is “dedicated in representing his clients.” We find
unreasonable the notion that “written communications” under the
rules only applies to emails since it is specifically referenced.
Rather, Standard 9.1(c) defines “direct mail communication” to
include written or electronic communications as described in the
Bar Rules, and Bar Rule 4-7.11(a) expressly provides that
subchapter 4-7 (Information About Legal Services), which governs
direct contact with prospective clients (Bar Rule 4-7.18), “applies to
all forms of communication in any print or electronic forum” and is
not limited to the examples listed. And as we intimated in
Schwartz’s defense exhibits’ disciplinary case, the requirement of
providing zealous representation is not a sword to wield as an
excuse to otherwise engage in misconduct. See Schwartz II, 334 So.
3d at 304.
Turning now to case number SC2021-0484, we first
disapprove of the portion of the referee’s report finding that the
Standards presumptively calling for suspension apply. Instead, we
find that disbarment is the presumptive sanction under the
following Standards.
- 21 - Standard 5.1(a) provides that “[d]isbarment is appropriate
when a lawyer . . . engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that
seriously adversely reflects on the lawyer’s fitness to practice.”
Here, while Schwartz knew that Johnson was represented by the
Public Defender’s Office, he filed the Byrd Affidavit in his client’s
case only and did not serve that office or file a copy in Johnson’s
case.
Standard 6.1(a) provides that “[d]isbarment is appropriate
when a lawyer . . . improperly withholds material information and
causes serious or potentially serious injury to a party, or causes a
significant or potentially significant adverse effect on the legal
proceeding.” Here, Schwartz withheld from the Public Defender’s
Office material information that could have exposed Johnson to
additional criminal charges, and, having proffered that Johnson
would testify that the drugs at issue in Maloy’s criminal case
belonged to Johnson and not Maloy, argued that it was irrelevant
for purposes of his motion to sever whether he acquired that
information from Johnson.
- 22 - Standard 7.1(a) provides that “[d]isbarment is appropriate
when a lawyer intentionally engages in conduct that is a violation of
a duty owed as a professional with the intent to obtain a benefit for
the lawyer or another and causes serious or potentially serious
injury to a client, the public, or the legal system.” Here, Schwartz
owed a duty to Johnson and his lawyer to not communicate with
Johnson because Schwartz knew Johnson was represented by
counsel, irrespective of Johnson’s dissatisfaction with that
representation. Such conduct not only could have benefitted Maloy
to the detriment of Johnson, but also could have benefitted
Schwartz himself, who has sought to build a reputation as a so-
called private public defender upon his own misguided
interpretation of the ethics rules.
We also disapprove of the portion of the referee’s report
regarding mitigating factors. “Like other factual findings, a referee’s
findings in mitigation and aggravation carry a presumption of
correctness and will be upheld unless clearly erroneous or without
support in the record.” Strems, 357 So. 3d at 91 (quoting Germain,
957 So. 2d at 621).
- 23 - Here, the evidence only supports finding Standards 3.3(b)(7)
(character or reputation) and 3.3(b)(10) (interim rehabilitation).
Many friends, relatives of clients, and other professionals testified in
support of Schwartz about his character, while Schwartz testified
concerning his therapy with Florida Lawyer’s Assistance, Inc., and
his efforts to change the way he practices law.
But the record evidence contradicts the referee’s findings as to
the other mitigating factors.
Standard 3.3(b)(2) (absence of a dishonest or selfish motive) is
not applicable here because, while Schwartz’s motive was not
financial, the type of motive usually contemplated under this factor,
his overzealous representation was intended to benefit his
professional reputation of a “private public defender office.”
Standard 3.3(b)(3) (personal or emotional problems) does not apply
because at issue is a life-long personality characteristic as opposed
to an acute emotional impairment. With respect to Standards
3.3(b)(4) (timely good faith effort to make restitution or to rectify the
consequences of the misconduct) and 3.3(b)(5) (full and free
disclosure to the bar or cooperative attitude toward the
proceedings), no evidence is cited in support of those mitigating
- 24 - factors. Regarding Standard 3.3(b)(11) (imposition of other
penalties or sanctions), Schwartz was not otherwise disciplined and
the delay in adjudicating this case is due to other pending Bar
disciplinary cases brought against Schwartz. Finally, Schwartz’s
expression of acceptance of responsibility for his misconduct is not
the same as being remorseful under Standard 3.3(b)(12). To the
contrary, the record reflects that Schwartz blamed the Bar for his
troubles, testifying at the sanction hearing that, in the context of
seeking help from other lawyers, he had stated that “[t]he Bar’s
doing everything they can to take away my license.” See Fla. Bar v.
Horton, 332 So. 3d 943, 949 (Fla. 2019) (finding of remorse was
clearly erroneous and evidence was insufficient, where lawyer
accused the Bar of prosecuting him like a “trophy being hunted”
and that the proceedings were like “facing a firing squad for a traffic
violation”).
The Court also considers existing case law in determining the
appropriate sanction to impose. Here, the referee distinguished as
factually dissimilar cases cited by the Bar in support of imposing
disbarment, while citing a ninety-day suspension case, Florida Bar
v. Committe, 916 So. 2d 741 (Fla. 2005), without explanation. The
- 25 - referee appears to have rested her recommended sanction upon
Schwartz’s professed intent “to provide full and effective assistance
of counsel in a criminal case” and erroneously concluded that his
misconduct “did not do any harm to any other person or the system
of justice.” As we have previously stated, a lawyer’s asserted motive
or the purpose in acting is not determinative of whether a rule was
violated and is not a factor in determining the appropriate sanction
to impose. See Schwartz I, 284 So. 3d at 396. In addition, the
referee here neither cited nor applied our recent case law imposing
more severe sanctions for lawyer misconduct, see, e.g., Fla. Bar v.
Altman, 294 So. 3d 844, 847 (Fla. 2020) (citing Fla. Bar v. Parrish,
241 So. 3d 66, 80 (Fla. 2018), or that cumulative misconduct
warrants more severe discipline, Fla. Bar v. Bosecker, 259 So. 3d
689, 699 (Fla. 2018).
Therefore, we disapprove the referee’s recommended discipline
in both cases. Instead, we conclude that the totality of Schwartz’s
conduct in the two cases taken together, and when considering
Schwartz’s disciplinary history, warrants disbarment. See Fla. Bar
v. Dupee, 160 So. 3d 838, 853 (Fla. 2015) (“The purposes of
attorney discipline are: (1) to protect the public from unethical
- 26 - conduct without undue harshness towards the attorney; (2) to
punish misconduct while encouraging reformation and
rehabilitation; and (3) to deter other lawyers from engaging in
similar misconduct.”).
III. CONCLUSION
Accordingly, Schwartz is hereby disbarred from the practice of
law in the State of Florida, effective immediately because he is
currently under suspension. Schwartz shall fully comply with Rule
Regulating The Florida Bar 3-5.1(h) and Rule Regulating The
Florida Bar 3-6.1, if applicable. Prior to seeking readmission,
Schwartz is further directed to comply with all other terms and
conditions of the report in case number SC2021-0484.
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 $9,795.75, 7 for which
sum let execution issue.
It is so ordered.
7. The Bar’s costs include $7,507.50 in case number SC2021- 0484 and $2,288.25 in case number SC2019-0983.
- 27 - 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 DISBARMENT.
Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, Jennifer R. Falcone, Bar Counsel, The Florida Bar, Miami, Florida, and Rita Florez, Bar Counsel, The Florida Bar, Miami, Florida; and Chris Altenbernd of Banker, Lopez Gassler P.A., Tampa, Florida,
for Complainant
Barry M. Wax of Law Offices of Barry M. Wax, Miami, Florida; Benedict P. Kuehne of Kuehne Davis Law, P.A., Miami, Florida; and Richard Baron of Baron, Breslin & Sarmiento, Miami, Florida, for Respondent
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