The Florida Bar v. Jonathan Stephen Schwartz

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
suspension.
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 -