The Florida Bar v. Kelsay Dayon Patterson ( 2021 )

Supreme Court of Florida
____________
No. SC19-2070
____________
THE FLORIDA BAR,
Complainant,
v.
KELSAY DAYON PATTERSON,
Respondent.
December 9, 2021
PER CURIAM.
The referee in this disciplinary proceeding found that Kelsay
Dayon Patterson committed multiple serious violations of the Rules
Regulating the Florida Bar (Bar Rules). Among other things,
Patterson without foundation accused judges and opposing counsel
and parties of racial bias. But the referee recommended only a
ninety-day suspension, largely because he believed that Patterson’s
misconduct had already been addressed in a prior disciplinary
proceeding. The Florida Bar argues that the referee’s premise is
incorrect and that Patterson’s undisputed misconduct in this case
warrants a two-year suspension. We agree. 1
I. BACKGROUND
The issues before us turn largely on the relationship between
this case and Patterson’s previous disciplinary proceeding, which
resulted in a one-year suspension starting in November 2018. We
therefore begin with a brief description of that earlier proceeding.
A. First Disciplinary Proceeding: Florida Bar v. Patterson
Florida Bar v. Patterson, 257 So. 3d 56 (Fla. 2018), involved
Patterson’s representation of Johanna Faddis in a lawsuit alleging
an invasion of privacy by the City of Homestead and related
defendants. In one of several appellate decisions in the Faddis
litigation, the Third District described Patterson and Faddis as
having committed a “fraud on the court” by filing the lawsuit.
Faddis v. City of Homestead, 157 So. 3d 447, 449 (Fla. 3d DCA
2015). Specifically, Faddis committed “intentional acts of perjury
on a central and material issue,” contradicting her deposition
testimony from an earlier case in which Patterson had also
1. We have jurisdiction. See art. V, § 15, Fla. Const.
-2-
represented her. Faddis v. City of Homestead, 121 So. 3d 1134,
1135 (Fla. 3d DCA 2013).
To make matters worse, Patterson committed additional acts
of misconduct during the already fraudulent Faddis litigation.
First, in a letter to a federal district judge who was presiding over a
related case, Patterson “expressed his belief that influential
members of the community had manipulated the outcome of the
[Faddis] case and implied that a [Third District Court of Appeal]
judge was biased in favor of opposing counsel.” Patterson, 257 So.
3d at 59. Second, in an appeal of an order imposing monetary
sanctions against both Faddis and him, Patterson “deliberately
disregarded the loyalty he owed his client and placed his personal
and financial interests at the forefront.” Id. at 64. And third,
without an objectively reasonable basis for his assertions, Patterson
submitted court filings in the Faddis litigation that “either
disparaged opposing counsel or expounded upon the alleged bias of
judges and the shortcomings of the legal system.” Id. at 62.
To get a sense of Patterson’s intemperate rhetoric in the
Faddis case filings, consider this description from an opinion of the
Third District:
-3-
Patterson’s response to our order to show cause makes
no argument on behalf of his client. Rather, it is a screed
following hard upon his reply brief filed in this appeal,
where he insinuates that he is “being bullied” by the
parties, their counsel, or the court in this case, and that
a “miscarriage of justice . . . is knowingly being
perpetrated against him,” (emphasis added). He likens
“the story” of the case he filed on behalf of Faddis to “the
story of Fidel Castro’s suffocating grip of Cuba, the
Holocaust, Jim Crow laws, and Hillary Clinton.”
According to him, the trial court sanction—and probably,
now this one as well—are part of some political scheme to
silence him and his client.
Faddis, 157 So. 3d at 453.
In Patterson’s first disciplinary proceeding, we ultimately
found Patterson guilty of violating several Bar Rules, and we
imposed a one-year suspension as a sanction. Patterson, 257 So.
3d at 58.
B. This Case
The temporal relationship between this case and Patterson’s
earlier disciplinary proceeding is a bit complicated. Our decision in
that proceeding, issued on October 19, 2018, addressed misconduct
that occurred between 2012 and 2015 (that is, during Patterson’s
litigation of the Faddis case). By contrast, this case involves
Patterson’s misconduct in an entirely separate case that was
litigated between 2011 and 2018. The Bar filed the complaint in
-4-
this case in December 2019—more than a year after our decision in
Patterson’s first disciplinary proceeding.
The Bar’s complaint in this case followed a referral from U.S.
District Court Judge Carlos Mendoza. That referral centered on
Patterson’s misconduct during his representation of J. Pearl
Bussey-Morice in a federal lawsuit, Bussey-Morice v. Kennedy, 657
F. App’x 909 (11th Cir. 2016). Bussey-Morice was the mother of a
young man who died “following officers’ attempts to gain control of
him after he had been Baker Acted, had refused to cooperate with
medical personnel, and had struggled against officers’ repeated
attempts to bring him under control in a public hospital’s
emergency-room lobby.” Bussey-Morice v. Gomez, 587 F. App’x 621,
622 (11th Cir. 2014). On Bussey-Morice’s behalf, Patterson filed a
lawsuit against the City of Rockledge and related defendants,
alleging excessive force in violation of the Fourth Amendment,
battery, and negligent training. Id. at 625-26.
After a sanctions hearing in the Bussey-Morice case, Judge
Mendoza entered a forty-two page order detailing Patterson’s
unprofessional conduct:
-5-
[T]he record demonstrates that Plaintiff’s counsel acted
vexatiously throughout the litigation, multiplying the
proceedings. . . .
This Court has repeatedly admonished Plaintiff’s
counsel from failing to comply with court orders;
improperly deviating from the legal issues in this case;
and baselessly suggesting that Defendants, defense
counsel, and the judges presiding over this case have
been motivated by some racial or other bias.
Bussey-Morice v. Kennedy, No. 6:11-cv-970-Orl-41GJK, 2018 WL
4101004, at *17-18 (M.D. Fla. Jan. 12, 2018). In light of those
findings, Judge Mendoza referred Patterson to The Florida Bar in
January 2018. The Bar’s complaint and the appointment of a
referee followed in December 2019.
The referee conducted a hearing and eventually issued a
report finding that Patterson had engaged in three categories of
misconduct while litigating Bussey-Morice: (1) Patterson repeatedly
alleged unfounded “racial and other biased partiality on the part of
opposing counsel and the courts”; (2) Patterson misused an
inadvertently disclosed fax and interrogatories; and (3) Patterson
committed procedural-rule violations throughout the case and
caused unreasonable delays in the litigation.
-6-
1. Patterson’s Unfounded Allegations of Bias
The referee’s report detailed many instances during the
Bussey-Morice litigation when Patterson made unfounded
allegations accusing the courts and opposing counsel and parties of
racial bias or partiality. For example, during one deposition defense
counsel requested that Patterson ask his client to stop making faces
and grunting noises. Denying that Bussey-Morice was engaging in
such behavior, Patterson asserted that “white American attorneys
and white police officers always love to accuse Africans and blacks
of always being hostile of always being argumentative and always
being nasty.”
Another incident happened when, after a disagreement,
Patterson told opposing counsel that neither he nor his client would
appear for a scheduled deposition, allegedly because they were
being treated unfairly based on their race. Patterson sent opposing
counsel correspondence, quoted in the referee’s report, that said:
These are the circumstances when Blacks are often
portrayed in a negative regard to justify some accidental
or strange death. That is not the way I am leaving this
planet over the false representations of these officers and
others while at Dean Ringers. No chance that is going to
happen to me.
-7-
Instead of you speaking directly to my point of view,
trying to place yourself in the shoes of a man whose race
and ancestry shows unfairness, bias, and wrongdoing
against Blacks as part of our American history . . . you
claim that I instead am behaving unprofessional.
I would rather avoid a scenario that somehow leads to
some accusation that I attempted to strike, hit, or
confront anyone, that strangely results in my untimely
death, against and over the objections of my client. Sure,
my wife and my son would have a cause of action, but I
would prefer to be around for them, and myself . . .
rather than have them face and deal with a host of
accusations that I had the strength and violence/anger of
20 wild gorillas when I attacked someone. No thanks, I
will leave that sort of creative fantastical writing to the
fate of some other unlucky and unfortunate fellow and
his family.
(Record references omitted.)
Patterson then filed an “Emergency Motion for Protective
Order” in which he referenced African-American history and the fact
that he and his client are African-American, and alleged that he felt
unsafe around the defendant officers and defense counsel and that
appearing at the deposition could result in his and his client’s
criminal arrest or bodily injury. The motion largely contained
speculative or conclusory statements and failed to establish a
specific basis for limiting discovery in the case.
-8-
In other court filings that Patterson made during Bussey-
Morice, he said:
We have clearly now entered a realm of rulings where the
credibility of the lawyers and their personalities as
exhibited through their pleadings from constant pleas,
claims, and a characterization campaign is being decided
by the Court.
How could that sort of credibility determination be made,
i.e. the Plaintiff and the undersigned did not have a valid
concern for their own safety? These sort of actions that
are void of truth and/or morality will not be lightly
overlooked by any sensible black American.
If the Court cannot understand that black people fear
unsubstantiated, distorted, wild, and malicious
characterizations against them by non-whites, i.e.
Trayvon Martin (but we raised this issue with the Court
saying just this same thing before Trayvon Martin had
even died) (Preston Bussey was also falsely accused of
attacking the security guards by Defendant Gomez), then
it is beyond the undersigned’s ability to convey a cultural
anxiety of black people in this specific regard to the
Court.
Any thinking person who knows our American history
would quickly be able to appreciate the parallel to what
occurred to Preston Bussey, III. The worst part of it all is
that the Defendant’s lawyers, educated men who must
know better, are trying to continue down this path that
reflects a sad and ugly American past. That is, they have
chosen to serve lies about a matter involving the
untimely, tragic, and unnecessary death of an unarmed
Black man there in the hospital, on his own accord,
seeking medical help, AND NOW being caught red-
handed in deceit and dishonesty for which no
-9-
conservative would ever ratify out loud, they expect the
entitlement of treatment they feel is their birth right.
(Record references omitted.)
The referee ultimately concluded that Patterson did not have
an objectively reasonable basis for these repeated allegations
accusing opposing counsel and the courts of racial bias and
partiality.
2. Patterson’s Mishandling of an Inadvertent Fax
During discovery, a defendant police officer mistakenly faxed
his draft response to interrogatories to Patterson instead of to his
own lawyer. The fax cover sheet clearly indicated that the fax was
intended for the officer’s counsel. Patterson read the responses
anyway, and he kept the fax and made no effort to notify defense
counsel of the error. When defense counsel learned of the
disclosure a few days later, he informed Patterson that the fax was
sent by mistake and asked that it be returned, noting that Bar Rule
4-4.4 (Respect for Rights of Third Persons) requires such action.
Patterson refused and used the information contained in the
inadvertent fax to support a motion and as the basis for filing an
amended complaint. Only after the court granted defense counsel’s
- 10 -
motion to compel Patterson to return the fax and to strike its
contents from the record did Patterson destroy the fax. In his
report, the referee deemed this misconduct “egregious.”
3. Patterson’s Failure to Expedite the Litigation
Finally, the referee found that Patterson’s conduct during the
Bussey-Morice litigation resulted in unnecessary delays and
protracted the litigation process. “Whether it was a failure to
appear to specific meetings with counsel, failure of a client to
appear for deposition, failure to comply with court deadlines and
rules which required motions and emergency motions for extension
of time, or failure to be prepared as required by the court,”
Patterson’s behavior throughout the litigation unreasonably slowed
down the process. The referee specifically found that “there were
numerous times when respondent failed to comply with court
orders and rules which resulted in sanctions being imposed various
times through the case.”
4. The Referee’s Recommendations
In light of the above-described findings, the referee
recommended that Patterson be found guilty of seven violations:
committing misconduct (rule 3-4.3); filing frivolous claims (rule 4-
- 11 -
3.1); failing to expedite litigation (rule 4-3.2); unfairness to opposing
parties and counsel (rule 4-3.4(c) and (d)); failure to respect the
rights of third parties (rule 4-4.4(b)); impugning the integrity of
judges (rule 4-8.2(a)); and committing misconduct prejudicial to the
administration of justice (rule 4-8.4(d)).
As a sanction, the referee recommended a ninety-day
suspension, attendance at ethics school and a professionalism
workshop, and payment of The Florida Bar’s costs.
The most basic reason the referee recommended a ninety-day
suspension is that he thought the Bar was “double downing by
seeking an increased suspension when the misconduct here
occurred at the same time as the prior misconduct.” The referee felt
that “the timeline of the misconduct in this case, as it relates to
respondent’s misconduct in the prior disciplinary case . . . is of
great concern.” In the referee’s view, Patterson “has already been
punished by much of the same conduct as he is being accused of
here.”
To come up with a recommended sanction, the referee looked
for misconduct that (in his view) had not already been sanctioned,
and he settled on Patterson’s mishandling of the inadvertent fax.
- 12 -
The referee deemed that misconduct “totally inappropriate” and “the
most egregious thing for which respondent has not yet been
punished for.”
The referee also reasoned that, even though the Bussey-Morice
litigation lasted through 2019, most of Patterson’s misconduct in
the case occurred in or before November 2012. At that time, the
presiding judge in the case (Judge Charlene Honeywell) admonished
Patterson, calling his filings in the case “appalling.” But Judge
Honeywell chose not to refer Patterson to the Florida Bar, and the
referee found this non referral to be significant.
The recommended sanction also reflected the fact that the
referee declined to find any of the four aggravating factors proposed
by the Bar. The referee rejected the prior disciplinary offenses and
multiple offenses aggravators because “[r]espondent’s misconduct
in this case was [at] the same time as his misconduct addressed in
[the earlier disciplinary] case.” He rejected the substantial
experience in the practice of law aggravator “because respondent’s
misconduct in this case was approximately ten years ago.” The
referee did not explain why he rejected the pattern of misconduct
aggravator.
- 13 -
As to mitigation, the referee found that the following applied:
absence of a selfish or dishonest motive; full and free disclosure to
and cooperation with the Bar; imposition of other penalties or
sanctions; remorse; and remoteness of prior offenses.
II. ANALYSIS
The Bar now asks us not to adopt the referee’s recommended
ninety-day suspension and to impose a two-year suspension
instead.2 Closely related to that, the Bar argues that the referee
erred by finding no aggravating factors. The Bar also argues that
the referee erred in finding remoteness of prior offenses as a
mitigator and in treating Judge Honeywell’s non referral of
Patterson in 2012 as a de facto mitigator. We do not have the
benefit of counterarguments from Patterson, because he did not file
a compliant answer brief.
The applicable standards of review are well known. A referee’s
findings of mitigation and aggravation carry a presumption of
correctness, and we will uphold them unless they are clearly
2. Since neither the Bar nor Patterson has challenged the
referee’s findings of fact and guilt, we approve both without further
comment.
- 14 -
erroneous or without support in the record. Fla. Bar v. Kinsella,
260 So. 3d 1046, 1049 (Fla. 2018) (citing Fla. Bar v. Germain, 957
So. 2d 613, 621 (Fla. 2007)). Our review of a referee’s
recommended discipline is broader and less deferential, because
“this Court has the ultimate responsibility to determine the
appropriate sanction.” Fla. Bar v. Barrett, 897 So. 2d 1269, 1275
(Fla. 2005).
A. The Referee Erred by Conflating the Two Proceedings
Compared to the referee, we have a fundamentally different
view of the relationship between this case and Patterson’s prior
disciplinary proceeding. Patterson has not already been punished
for the behavior at issue here. Patterson’s prior disciplinary
proceeding related entirely to his conduct in the Faddis case. By
contrast, this case is about Patterson’s misconduct in the Bussey-
Morice case.
For purposes of determining whether the Bar is asking us to
impose double punishment on Patterson, it does not matter that
some of the misconduct found in the earlier case—specifically,
making unfounded allegations of bias and undermining confidence
in the legal system—is similar in kind to some of the misconduct
- 15 -
found here. Nor does it matter that there is some overlap in the
time periods covered by the two cases. The fact is that the one-year
suspension we imposed in Patterson’s earlier disciplinary
proceeding did not in any way account for the acts of misconduct
that the referee found in this case.
On a more detailed level, we also believe that the Bar has
shown that the referee clearly erred in his rejection of the proposed
aggravating factors. First, our decision in Patterson’s previous
disciplinary proceeding means that Patterson had committed prior
disciplinary offenses. It does not matter that there was temporal
overlap between the misconduct found in the prior case and the
separate misconduct found in this case. Our precedents show that
the prior disciplinary offenses aggravator can apply even when the
conduct sanctioned in a prior case occurred after the different
conduct being addressed in a case under review. See Fla. Bar v.
Golden, 566 So. 2d 1286, 1287 (Fla. 1990); Fla. Bar v. Roberts, 770
So. 2d 1207, 1208-09 (Fla. 2000).
Second, the referee clearly should have found the pattern of
misconduct aggravator. This was established both by the similarity
in misconduct between the earlier disciplinary proceeding and this
- 16 -
one, and by the finding in this case that Patterson repeatedly made
unfounded allegations of racial bias and repeatedly failed to
expedite the litigation. See Fla. Bar v. Norkin, 132 So. 3d 77, 87
(Fla. 2013) (pattern established across disciplinary proceedings);
Fla. Bar v. Ratiner, 46 So. 3d 35, 39 (Fla. 2010) (pattern based on
repeated behavior addressed in single disciplinary proceeding).
Third, the referee’s rejection of the multiple offenses
aggravator was also clearly erroneous. Looking only at this case,
Patterson committed several distinct types of misconduct—making
unfounded allegations of racial bias, mishandling the inadvertent
fax, and repeatedly violating procedural rules and causing
unreasonable delays in the litigation. The Bar rightly emphasizes in
its brief that this is not a case where the referee was asked to find
multiple offenses based on a single act that happened to violate
multiple Bar Rules.
And fourth, the referee clearly should have found the
substantial experience in the law aggravator. Patterson was
admitted to the Bar in October 1997. When the Bussey-Morice case
began in June 2011, Patterson had nearly fourteen years of
experience in the practice of law, and he already had experience
- 17 -
appearing in federal court. Patterson was a seasoned practitioner
who should have known that his conduct throughout the Bussey-
Morice case was inconsistent with his professional obligations under
the Bar Rules.
Turning to the mitigation issues, we agree with the Bar that
the referee clearly erred by finding the remoteness of prior offenses
mitigator. As we have explained, there was temporal overlap
between the misconduct found in Patterson’s first disciplinary
proceeding and the misconduct here—the two sets of misconduct
were not remote from each other. Moreover, even in instances
where the prior disciplinary history is deemed remote in time, it
may still be disqualified from consideration as a mitigating factor
when the prior misconduct is similar to the misconduct under
review. See Fla. Bar v. Varner, 992 So. 2d 224, 230 (Fla. 2008). We
have held that where, as here, there is great similarity between the
offenses, the remoteness of the prior offense is not a mitigating
factor. Id.And finally, we agree with the Bar that the referee should not
have deemed it mitigating that, unlike Judge Mendoza, Judge
Honeywell chose simply to counsel Patterson rather than make a
- 18 -
referral to The Florida Bar. There could be myriad reasons why a
judge would choose that approach. A referee’s findings on
mitigation must be based on an objective assessment of the
respondent’s conduct—not on another judge’s unexplained,
discretionary decisions about how to address it.
B. Patterson’s Misconduct Warrants a Two-Year Suspension
Having explained what we believe to be the correct factual
backdrop, we have no trouble concluding that Patterson’s
misconduct warrants a two-year suspension. It is undisputed that
Patterson engaged in three distinct types of misconduct, all
serious—making unfounded allegations against courts, counsel,
and parties; misusing the inadvertent fax; and repeatedly violating
procedural rules and thereby failing to expedite litigation.
Patterson’s repeated, unfounded allegations of racial bias were
particularly egregious. And they were especially damaging—not
just to the individuals whose character he unjustly impugned, but
more broadly to the public’s confidence in our judicial system.
Patterson’s behavior was diametrically opposed to the civility and
professionalism that our Bar Rules and the Oath of Admission
demand.
- 19 -
We think that the referee got this case exactly backward. The
referee discounted the recommended sanction based on his clearly
erroneous conclusion that we had already disciplined Patterson for
the misconduct found in this case. Instead, the referee should have
found that Patterson’s pattern of engaging in such serious and
damaging misbehavior warranted an especially severe sanction.
See Fla. Bar v. Bern, 425 So. 2d 526, 528 (Fla. 1982) (“In rendering
discipline, this Court considers the respondent’s previous
disciplinary history and increases the discipline where appropriate.
The Court deals more harshly with cumulative misconduct than it
does with isolated misconduct.”) (citations omitted); see also Norkin,
132 So. 3d at 79-88 (rejecting referee’s ninety-day suspension in
favor of a two-year suspension because respondent, with a prior
disciplinary record for similar acts of misconduct, repeatedly
impugned the integrity of judicial officers, conducted himself in an
unprofessional and antagonistic manner during court proceedings,
and made unprofessional and disparaging statements publicly and
in email exchanges regarding opposing counsel).
Under our incremental approach to discipline in cases
involving prior acts of similar misconduct, the two-year suspension
- 20 -
more appropriately sanctions Patterson’s extensive and repeated
unprofessional conduct. See Fla. Bar v. Altman, 294 So. 3d 844,
848 (Fla. 2020) (three-year suspension warranted by respondent’s
multiple prior thirty-day suspensions since “this Court typically
takes an incremental approach, imposing increasingly heavier
sanctions on respondents who have been previously disciplined for
engaging in similar misconduct”); Norkin, 132 So. 3d at 92 (public
reprimand followed by two-year suspension); Fla. Bar v. Letwin, 70
So. 3d 578, 581 (Fla. 2011) (ninety-day suspension followed by one-
year suspension).
III. CONCLUSION
The referee’s recommended discipline is disapproved, and
Kelsay Dayon Patterson is hereby suspended from the practice of
law for two years. As Patterson is already suspended from the
practice of law, this suspension is effective immediately. Patterson
shall fully comply with Rules Regulating the Florida Bar 3-5.1(h)
and, if applicable, 3-6.1. Before seeking reinstatement, Patterson
must attend ethics school and a professionalism workshop.
Judgment is entered for The Florida Bar, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300, for recovery of costs from
- 21 -
Kelsay Dayon Patterson in the amount of $8,548.73, 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 Lindsey
Margaret Guinand, Bar Counsel, The Florida Bar, Tampa, Florida;
and Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa,
Florida,
for Complainant
Russell S. Prince of Palma & Prince, PA, Tampa, Florida, and Kelsay
D. Patterson, pro se, Tampa, Florida,
for Respondent
- 22 -