Inquiry Concerning a Judge, No. 13-25 Re: Andrew J. Decker, III – Corrected Opinion

Supreme Court of Florida
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No. SC14-383
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INQUIRY CONCERNING A JUDGE, NO. 13-25 RE:
ANDREW J. DECKER, III.
[March 2, 2017]
CORRECTED OPINION
PER CURIAM.
This matter is before the Court for review of the determination of the Florida
Judicial Qualifications Commission (JQC) that Circuit Judge Andrew J. Decker,
III, has violated certain Florida Bar Rules of Professional Conduct before his
judicial campaign and the Code of Judicial Conduct during his judicial campaign.
We have jurisdiction. See art. V, § 12, Fla. Const. We conclude that, with limited
exceptions, the JQC Hearing Panel’s findings are supported by clear and
convincing evidence. For the violations in this case, the Hearing Panel
recommended a ninety-day suspension, public reprimand, and payment of costs of
the proceedings. Article V, section 12(c)(1) of the Florida Constitution provides
that this Court “may accept, reject, or modify in whole or in part the findings,
conclusions, and recommendations of the commission.” We modify in part the
sanction recommended by the Hearing Panel and impose the following discipline
on Judge Decker: a six-month suspension, public reprimand, and payment of costs
of the proceedings.
PROCEDURAL HISTORY
Judge Andrew J. Decker, III, took office as a circuit judge in the Third
Judicial Circuit after a contested election in November 2012. On May 3, 2013, the
JQC Investigative Panel issued a Notice of Investigation to Judge Decker
informing him that the Investigative Panel was conducting an investigation into
allegations of violation of a number of the Canons in the Code of Judicial Conduct
governing judicial candidates and of the Rules of Professional Conduct governing
attorneys. On August 22, 2013, the Investigative Panel held a probable cause
hearing pursuant to Florida Judicial Qualifications Commission Rule 6(b) at which
Judge Decker and his counsel appeared. On June 23, 2014, the Investigative Panel
filed its Second Amended Notice of Formal Charges pursuant to the findings of the
Investigative Panel.1 The Second Amended Notice of Formal Charges alleged
1. The first notice of charges was filed as “Amended Notice of Formal
Charges” on February 25, 2014. On April 24, 2014, the Investigative Panel filed
“First Amendment to Amended Notice of Formal Charges.” An “Amendment to
Paragraph 7 of the Amended Notice of Formal Charges” was filed on May 23,
2014. The final notice of charges, denominated the “Second Amended Notice of
Formal Charges,” was filed on June 23, 2014, and served as the basis for the
evidentiary hearing and the Hearing Panel’s final order in this case.
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violations of the Rules of Professional Conduct by then-attorney Decker’s conduct
as a practicing attorney, and further alleged violations of the Code of Judicial
Conduct when then-attorney Decker was campaigning for the judgeship.
Charge 1 of the Second Amended Notice of Formal Charges alleged that on
July 31, 2012, when then-attorney Decker was a candidate for a circuit court
judgeship in the Third Judicial Circuit, while at a televised debate with his
opponent, then-attorney Decker stated that he had never been accused of having a
conflict of interest. The notice alleged that the statement was false because less
than four months earlier, a formal complaint was filed with The Florida Bar by
Daniel Dukes, a former client, alleging conflict of interest. The notice alleged that
then-attorney Decker responded to that complaint with a twelve-page letter only
two and one half months before the debate, and that the false statement made at the
debate was not corrected. The foregoing conduct was said to violate the Code of
Judicial Conduct Canons 7A(3)(b) (candidate shall act with impartiality, integrity,
and independence) and 7A(3)(e)(ii) (candidate shall not knowingly misrepresent
qualifications or facts concerning the candidate or opponent), and the Rules of
Professional Conduct 4-8.4(c) (lawyer shall not engage in conduct involving
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dishonesty or misrepresentation) and 4-8.2(b) (candidate for judicial office shall
comply with applicable provisions of the Code of Judicial Conduct).2
Charge 3 alleged, in pertinent part, that at a judicial forum sponsored by the
Lafayette County Republican Executive Committee, then-attorney Decker stated to
the audience that he is a registered Republican, that his former affiliation with the
Democratic Party was an error, and that he is “pro-life.” It was alleged that these
statements violated the Code of Judicial Conduct Canons 7A(1)(c) (candidate shall
not make speeches on behalf of a political organization); 7C(3) (candidate should
refrain from commenting on affiliation with any political party and must avoid
conduct suggesting support of a political party or a political issue); Rule of
Professional Conduct 4-8.2(b) (lawyer who is a candidate shall comply with
applicable Canons of Judicial Conduct); and section 105.071(3), Florida Statutes
(2011) (candidate for judicial office shall not publicly represent himself or herself
as a member of any political party).
Charge 6 alleged that as an attorney, then-attorney Decker began
representing Circuit Judge Paul Bryan in a lawsuit filed by TD Bank, N.A., against
Judge Bryan, Daniel Dukes, and William Woodington, who were also represented
2. We discuss only those charges on which Judge Decker was found guilty.
The Hearing Panel directed a verdict in Judge Decker’s favor on Charge 2 and
found him not guilty of Charges 4 and 5.
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by then-attorney Decker. Charge 6 alleged that during his representation of Judge
Bryan, then-attorney Decker was engaged in trial preparation in a suit brought by
Wells Fargo Bank, N.A., against two of his other clients, Jean and Joan Cornell.
That case was being heard by Judge Bryan, and it was alleged that then-attorney
Decker failed to inform Bart Valdes, opposing counsel in the Wells Fargo suit, that
then-attorney Decker and Judge Bryan had an attorney-client relationship. Charge
6 alleged that then-attorney Decker engaged in pretrial preparation and negotiation
with Valdes up to a date very near the scheduled trial without ever disclosing his
relationship with Judge Bryan. This conduct was alleged to violate Rule of
Professional Conduct 4-8.4(d) (lawyer shall not engage in conduct prejudicial to
the administration of justice); Rule 4-8.4(c) (lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation); and Rules Regulating
The Florida Bar Rule of Discipline 3-4.3 (commission by a lawyer of act that is
unlawful or contrary to honesty and justice may constitute cause for discipline).
Charge 7 alleged a number of matters concerning then-attorney Decker’s
representation of Judge Bryan, Dukes, Woodington, and an entity owned by them
called BWD Land Trust (BWD) arising out of the suit against these clients by TD
Bank. The charge alleged that then-attorney Decker failed to explain to the three
clients the implications of common representation and the advantages and risks
involved. For example, the charge alleged that then-attorney Decker failed to
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explain that joint guarantors are entitled to demand reimbursement from the others
if one pays more than another. This failure was alleged to violate Rule of
Professional Conduct 4-1.7(c) (attorney representing multiple clients in a single
matter must explain implications of common representation and advantages and
risks involved). It was also alleged that in this litigation, BWD owed TD Bank
approximately $1.3 million secured by property in Bradford County and that the
three clients were guarantors of this debt. The charge contended that during this
litigation, then-attorney Decker had Dukes and Woodington execute quitclaim
deeds to Judge Bryan, which put them at a negotiating disadvantage. By doing so,
he allegedly violated Rule of Professional Conduct 4-1.7(a) (attorney must not
represent a client if the representation will be directly adverse to another client or
there is a substantial risk that lawyer’s representation of one client will be
materially limited by responsibilities to another client) and Rule 4-1.8(g) (lawyer
of multiple clients shall not make an aggregate settlement unless each client gives
informed consent in writing, and lawyer’s disclosure shall include the existence
and nature of all claims and the participation of each person in the settlement).
It was further alleged in Charge 7 that on August 10, 2011, then-attorney
Decker sent an e-mail to Scott Thomas, the attorney representing TD Bank, stating
that Judge Bryan might file for bankruptcy, which created a conflict with then-
attorney Decker’s other two clients, requiring his immediate withdrawal from
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representing all three of them. This conduct was alleged to violate Rule of
Professional Conduct 4-1.7(a) (attorney must not represent a client if the
representation will be directly adverse to another client or there is a substantial risk
that lawyer’s representation of one client will be materially limited by
responsibilities to another client).
When then-attorney Decker filed a bankruptcy petition for Judge Bryan,
then-attorney Decker stated under oath that his law firm had no connection with
the debtor, his creditors, or any other parties of interest, which was alleged in
Charge 7 to be false, and in violation of Rule of Professional Conduct 4-3.3 (lack
of candor toward the tribunal). Then-attorney Decker then filed an amended
application to represent Judge Bryan in the bankruptcy case, clarifying that his firm
had represented BWD, Dukes, Woodington, and Judge Bryan in the earlier-filed
foreclosure action. However, in this amended application, then-attorney Decker
did not mention that he continued to represent BWD, which was alleged to be a
violation of Rule of Professional Conduct 4-3.3 (lack of candor toward the
tribunal).
In addition, in Charge 7, the Investigative Panel alleged that shortly after the
bankruptcy petition was filed for Judge Bryan, and while then-attorney Decker was
still counsel for Dukes and Woodington, then-attorney Decker sent an e-mail on
March 14, 2012, to Scott Thomas, counsel for TD Bank in the foreclosure suit filed
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against all three clients. Judge Decker admitted to the fact and the text of the e-
mail, which stated that then-attorney Decker consented to relief from the
bankruptcy stay for TD Bank, but noted that TD Bank could still “pursue its
remedies against the other two defendants,” who were Dukes and Woodington.
This conduct was alleged to violate Rules of Professional Conduct 4-1.7(a)
(attorney must not represent a client if the representation will be directly adverse to
another client), 4-1.8(b) (lawyer shall not use information relating to representation
of one client to the disadvantage of another client without consent), and 4-1.9(b)
(lawyer must not use information relating to representation of one client to the
disadvantage of a former client).
Finally, Charge 7 contained allegations regarding four lawsuits filed on
October 3, 2011, by John Vreeland, trustee of the Leland Bryan Revocable Living
Trust, in Polk County. Three of the suits were filed against Judge Bryan and one
suit was filed against Dukes and Woodington. The Second Amended Notice of
Formal Charges alleged that in this litigation, Dukes, who was not represented in
that case by then-attorney Decker, contended his signature on a promissory note
for $235,400 was forged, thus creating a conflict of interest for then-attorney
Decker’s continued representation of the three clients, which was in violation of
Rule of Professional Conduct 4-1.7(a) (lawyer must not represent a client if that
representation is directly adverse to another client or the representation will be
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materially limited by responsibilities to another client, a former client, or a third
person). Charge 7 alleged that the claim of forgery by Dukes required then-
attorney Decker’s withdrawal from representation of all three clients.
The Second Amended Notice of Formal Charges, in Charges 8 through 16,
which were treated by the Hearing Panel as one charge, made certain allegations of
misconduct concerning then-attorney Decker’s actions during litigation filed by
Compass Bank. In that litigation, then-attorney Decker represented Woods
Marina, LLC, Matthew Ellison, and Jennifer Ellison, who is also an attorney. It
was alleged that in June 2010, then-attorney Decker filed an answer for these three
clients and served Attorney Brent C. Siegel, who represented certain other
defendants, including Job White and his wife, Frances Grace White, who were
trying to reinstate, refinance, or buy the Compass Bank loan to save the
condominium project for which the loan was made. It was alleged that unknown to
Siegel’s clients, the Ellisons began negotiations with Compass Bank to buy the
loan for their own benefit.
During this litigation, then-attorney Decker and the attorney for Compass
Bank moved to substitute the Ellisons’ new entity, MJE Family Investments
(MJE), as party-plaintiff, and the Ellisons, through MJE, voluntarily dismissed
Siegel’s clients, defendants Job and Frances Grace White. It was alleged that these
actions and this substitution occurred after then-attorney Decker and Jennifer
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Ellison met secretly with Siegel’s client, Job White, at then-attorney Decker’s
office to discuss possible settlement of the case as to the Whites, and that pursuant
to the secret settlement, the Whites were to provide funds that the Ellisons would
use to help buy the Compass loan. At the secret meeting, White informed then-
attorney Decker he had discharged Siegel, his counsel of record, but then-attorney
Decker did not confirm this. The agreement reached with the Ellisons and the
Whites was protected by a confidentiality provision that allowed it to be revealed
only to the parties’ counsel, even though White claimed he had no counsel. It was
alleged that the Whites’ counsel, Siegel, only learned of the secret deal in
November 2010 when then-attorney Decker sent demand letters to Siegel’s other
clients to accept a settlement offer. All this conduct was alleged to violate Rule of
Professional Conduct 4-4.2(a) (lawyer must not communicate about the subject of
the representation with persons the lawyer knows are represented by counsel unless
consent is obtained); Rule 4-3.4(a) (lawyer must not obstruct another party’s
access to documents or material that the lawyer knows or reasonably should know
is relevant to the proceeding, or assist another person to do so); Rule 4-8.4(a)
(lawyer shall not violate the Rules of Professional Conduct or knowingly assist or
induce another to do so); Rule 4-8.4(c) (lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation); and Rule of Discipline
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3-4.3 (lawyer’s conduct that is unlawful or contrary to the administration of justice
is subject to discipline).
Charge 17 of the Second Amended Notice of Formal Charges was simply a
summation of the Judicial Canons, Rules Regulating The Florida Bar, and the
statute that the foregoing conduct was alleged to have violated.
After Judge Decker filed his answers to the charges, the parties engaged in
extensive discovery and the case proceeded to an evidentiary hearing held
December 10-12, 2014, before the Hearing Panel. The Hearing Panel issued its
“Findings, Conclusions and Recommendations by the JQC Hearing Panel”
(Findings) on March 3, 2015.
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
BY THE JQC HEARING PANEL
In its Findings, the Hearing Panel correctly noted that the burden of proof
for violation of the Rules Regulating The Florida Bar and the Code of Judicial
Conduct is clear and convincing evidence. See In re Turner, 76 So. 3d 898, 901
(Fla. 2011). All the charges at issue, as set forth in the Second Amended Notice of
Formal Charges, concern Judge Decker’s conduct as a private attorney and during
his candidacy for circuit judge. The Hearing Panel also correctly determined that a
sitting judge can be disciplined through the JQC for rule and statutory violations
that occurred before the judge took the bench. See In re Henson, 913 So. 2d 579,
588 (Fla. 2005) (“Misconduct committed by an attorney who subsequently
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becomes a judge falls within the subject-matter jurisdiction of this Court and the
JQC, no matter how remote.”); see also In re Watson, 174 So. 3d 364, 369 (Fla.
2015) (“[T]he Commission has constitutional authority to investigate pre-judicial
acts and recommend to this Court the removal (for unfitness) or reprimand (for
misconduct) of a sitting judge.” (alteration in original) (quoting In re Davey, 645
So. 2d 398, 403 (Fla. 1994))), cert. denied, 136 S. Ct. 863 (2016). The Hearing
Panel’s Findings also noted that Judge Decker agreed that some of his conduct was
in violation of the various rules and canons. Based on Judge Decker’s admissions
and the evidence presented, the Hearing Panel found Judge Decker guilty of
Charges 1, 3, 6, 7, and 8, which also encompasses Charges 9-16.
The Hearing Panel found as to Charge 1 that then-attorney Decker’s
statement at a televised debate that he had never been accused of a conflict of
interest was false and was not corrected during the debate or publicly thereafter.
The Hearing Panel found that Judge Decker admitted his guilt and that this conduct
violated Judicial Canons 7A(3)(b) and 7A(3)(e)(ii), and Rules of Professional
Conduct 4-8.4(c) and 4-8.2(b).
The Hearing Panel found as to Charge 3, in pertinent part, that at a Lafayette
County Republican Executive Committee candidates’ forum then-attorney Decker
publicly stated he was affiliated with the Republican Party and that his former
affiliation with the Democratic Party was an error he had corrected. Judge Decker
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admitted making the statements. The Hearing Panel found this conduct violated
Code of Judicial Conduct Canons 7A(1)(c) and 7C(3), Rule of Professional
Conduct 4-8.2(b), and section 105.071(3), Florida Statutes (2011). The Hearing
Panel did not find a violation regarding then-attorney Decker’s statement that he is
“pro-life.”
As to Charge 6, the Hearing Panel found Judge Decker guilty based on the
evidence of his failure to notify opposing counsel in the Wells Fargo case that he
represented the presiding judge, Judge Bryan, in other litigation. The Hearing
Panel found that in November 2010, Judge Bryan, the presiding judge in a
foreclosure case brought by Wells Fargo Bank against then-attorney Decker’s
clients, the Cornells, set the case for trial for January 25, 2011. The Hearing Panel
found that in December 2010, then-attorney Decker began representing Judge
Bryan in the TD Bank suit brought against Judge Bryan, Dukes, and Woodington.
The Hearing Panel found that during the time leading up to the trial date in the
Wells Fargo case, then-attorney Decker and Wells Fargo’s attorney Bart Valdes
engaged in trial preparation and settlement negotiations. The Hearing Panel found
that then-attorney Decker asked Valdes to agree to a continuance, which was
agreed upon, and submitted an order for a continuance to Judge Bryan on January
24, 2011. During this time, then-attorney Decker did not disclose to Valdes the
fact that then-attorney Decker was representing Judge Bryan in separate litigation.
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The Hearing Panel concluded that this conduct was proven and that it prejudiced
opposing counsel. This conduct was found to have violated Rules of Professional
Conduct 4-8.4(d) and 4-8.4(c), and Rule of Discipline 3-4.3.
The Hearing Panel found Judge Decker guilty of Charge 7, which involved
then-attorney Decker’s common representation of Judge Bryan, Dukes, and
Woodington, as well as their trust, BWD, in litigation arising from land purchases
in Hamilton County and Bradford County. Judge Decker agreed that he failed to
provide a proper explanation to these clients concerning his common
representation of all of them, and that he should have withdrawn from representing
all of them. The Hearing Panel found that then-attorney Decker failed to explain to
them the advantages and, equally if not more importantly, the risks involved when
one joint guarantor is entitled to demand contribution from the other joint
guarantors if one pays more than another. The Hearing Panel also found that then-
attorney Decker failed to have the clients execute written waivers of conflict, did
not have a written contract with the clients, and did not keep Dukes and
Woodington advised in any respect about the litigation. This conduct was found to
have violated Rule of Professional Conduct 4-1.7(c).
The Hearing Panel also found as part of Charge 7 that then-attorney
Decker’s actions in sending an August 10, 2011, e-mail to the attorney
representing TD Bank, stating that Judge Bryan might file for bankruptcy, created
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a conflict with then-attorney Decker’s other clients and required then-attorney
Decker’s immediate withdrawal from representing all three of them. This conduct
was found to violate Rule of Professional Conduct 4-1.7(a). In addition, relative to
Charge 7, the Hearing Panel found that in the TD Bank foreclosure suit against his
clients, then-attorney Decker had Dukes and Woodington execute quitclaim deeds
of the subject property to Judge Bryan, which the Hearing Panel found divested
Dukes and Woodington of ownership and placed them at a negotiating
disadvantage. This conduct was found to violate Rules of Professional Conduct 4-
1.7(a) and 4-1.8(g). These violations were found even though Judge Decker
explained that he sought the quitclaim deeds only to avoid additional judgment
liens being placed against the property in order that he might more successfully
negotiate a resolution of the case by deed in lieu of foreclosure.
The Hearing Panel also found that then-attorney Decker violated Rule 4-
1.7(a) by continuing to represent all three clients after separate lawsuits were filed
in Polk County by the Leland Bryan Revocable Living Trust against Bryan, Dukes,
and Woodington, in which then-attorney Decker was not representing Dukes. In
that litigation, Dukes claimed his signature had been forged on the note at issue,
which the Hearing Panel concluded created a conflict among the defendants and
that then-attorney Decker should have withdrawn from representing all these
clients. The Hearing Panel also found that further conflict was created when then-
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attorney Decker filed a chapter 11 bankruptcy petition for Judge Bryan, which
created conflict between the three clients. In the filing, then-attorney Decker made
inaccurate statements in the pleadings, which were filed while he still represented
Dukes and Woodington, that then-attorney Decker’s firm had no connection with
any creditor or other parties in interest. The Hearing Panel found that this conduct
violated Rules of Professional Conduct 4-1.7, 4-1.8(g), 4-3.3, and 4-1.9(b).
Also as to Charge 7, the Hearing Panel found, based on evidence and Judge
Decker’s admitted conduct, that shortly after Judge Bryan’s bankruptcy petition
was filed, and while then-attorney Decker was still representing Dukes and
Woodington, then-attorney Decker sent an e-mail to counsel for TD Bank in the
foreclosure suit consenting to relief from the bankruptcy stay for TD Bank, and
noting that TD Bank could still “pursue its remedies against the other two
defendants,” who were Dukes and Woodington. This conduct was found to violate
Rules of Professional Conduct 4-1.7(a), 4-1.8(b), and 4-1.9(b).
The Hearing Panel found Judge Decker guilty of Charge 8 (including
allegations in Charges 8 through 16) involving a foreclosure case brought by
Compass Bank in which then-attorney Decker represented Matthew and Jennifer
Ellison and their entity, Woods Marina, LLC. Attorney Brent Siegel represented,
among others, Kelly Shore, Ted Burt, and Job and Frances Grace White. Siegel’s
clients were attempting to reinstate, refinance, or buy the Compass Bank loan to
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save the condominium project for which the monies were borrowed. The Hearing
Panel found that unknown to Siegel and his other clients, the Ellisons began their
own discussions to buy the Compass Bank note, thus becoming competitors with
the other defendants. The Hearing Panel found that without Siegel’s knowledge or
approval, then-attorney Decker and his client, Jennifer Ellison, met in secret with
Siegel’s client, Job White, at then-attorney Decker’s office, with then-attorney
Decker present, to discuss possible settlement, in which the Whites would provide
some funds that the Ellisons would use toward purchasing the note. If this
succeeded, the Ellisons would dismiss claims against the Whites. The Hearing
Panel found based on testimony by Judge Decker and White that, at that meeting,
White told then-attorney Decker he had no counsel, or had discharged his counsel,
but then-attorney Decker made no effort to confirm that. The Hearing Panel
further found that a settlement, with a confidentiality clause, was reached with
Ellison and the Whites, which resulted in MJE, a newly created entity by the
Ellisons, being substituted as plaintiff in the Compass Bank litigation. Siegel
testified, and the Hearing Panel found, that he did not learn of the secret deal until
more than a month later when then-attorney Decker sent a letter to Siegel making
demands of Siegel’s other clients. The Hearing Panel found that this conduct
violated Rules of Professional Conduct 4-4.2(a), 4-3.4(a), 4-8.4(a), 4-8.4(c), and
Rule of Discipline 3-4.3.
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In its Findings, the Hearing Panel concluded that Judge Decker exhibited a
pattern of behavior that evidenced a lack of ethical judgment and a lack of
understanding and concomitant contrition about the harm caused to his clients and
the public’s trust. The Hearing Panel stated, “The cumulative effect of these
misdeeds coupled with the fact that Judge Decker has been reprimanded by The
Florida Bar in the past, evinces a lack of ability to identify situations that lead to
the appearance of impropriety.”3 However, the Hearing Panel found based on
testimony concerning Judge Decker’s present ability as a circuit judge that “he
should be given an opportunity to continue to serve the citizens.” The Hearing
Panel concluded by recommending a public reprimand, suspension without pay for
ninety days, and an order to pay costs of the proceedings.
After the Hearing Panel’s Findings were filed, this Court issued an order to
Judge Decker to show cause why the recommended action should not be granted.
Judge Decker responded that he accepted the recommended discipline and “looks
forward to continuing to serve the public as a circuit court judge following his term
of suspension.” Thereafter, we issued a second order to Judge Decker to show
cause as to why the Court should not disapprove the recommended sanction of a
3. The details of the prior discipline were not made clear in the record and
when asked about the earlier discipline, Judge Decker conceded he had been
disciplined in 1985 but could not recall the reason.
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public reprimand, ninety-day suspension, and costs as well as consider a more
severe sanction instead, including removal from office. Both Judge Decker and the
JQC responded in detail to the second order to show cause.
ANALYSIS
We review the findings of the Hearing Panel to determine if they are
supported by clear and convincing evidence. The “standard for clear and
convincing evidence falls between ‘a preponderance of the evidence’ and
‘beyond . . . reasonable doubt.’ ” In re Turner, 76 So. 3d at 901 (alteration in
original) (quoting In re Graziano, 696 So. 2d 744, 753 (Fla. 1997)). “If the
findings meet this intermediate standard, then they are of persuasive force and are
given great weight.” Id. We further review the recommendation of discipline to
determine “whether it should be approved or whether other discipline is
appropriate.” In re Renke, 933 So. 2d 482, 486 (Fla. 2006). We conclude that—
except as to one rule violation found under Charge 3, one rule violation found
under Charge 7, and the five rule violations found under Charge 8—the Hearing
Panel had before it clear and convincing evidence of the violations of those rules
that the Hearing Panel found then-attorney Decker violated.
Then-attorney Decker’s conduct alleged in Charge 1—that while
campaigning he falsely stated that he had never been accused of a conflict of
interest—was proven by clear and convincing evidence. This false statement,
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which he did not timely correct, violated Code of Judicial Conduct Canons
7A(3)(e)(ii), which prohibits a candidate from knowingly misrepresenting facts
concerning the candidate or opponent, and 7A(3)(b), which requires a candidate to
act with integrity. By violating these Canons, then-attorney Decker also violated
Rule of Professional Conduct 4-8.2(b), which requires candidates to comply with
the applicable Canons of Judicial Conduct. Further, clear and convincing evidence
established that the conduct violated Rule of Professional Conduct 4-8.4(c), which
prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
Then-attorney Decker’s conduct alleged in Charge 3—that he publicly
announced his affiliation with the Republican Party—was also proven and violated
Canon 7C(3) of the Code of Judicial Conduct, which requires a candidate for
judicial office to refrain from commenting on his or her affiliation with or support
of a political party.4 By violating this Canon, then-attorney Decker also violated
Rule of Professional Conduct 4-8.2(b), which requires candidates to comply with
4. The Second Amended Notice of Formal Charges alleged that then-
attorney Decker’s conduct set forth in Charge 3 also violated Canon of Judicial
Conduct 7A(1)(c), which prohibits a judicial candidate from making speeches on
behalf of a political organization. However, the Hearing Panel did not explain in
its Findings how then-attorney Decker’s comment constituted a “speech” on behalf
of a political organization. We do not find that the conduct alleged and proven in
Charge 3 violated this particular subsection of Canon 7A.
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the applicable Canons of Judicial Conduct. Finally, this conduct violated section
105.071(3), Florida Statutes, which prohibits a candidate for judicial office from
publicly representing himself as a member of a political party.5
The evidence of the conduct alleged in Charge 6 was clear and convincing
that then-attorney Decker violated Rule of Professional Conduct 4-8.4(d), which
prohibits conduct in connection with the practice of law that is prejudicial to the
administration of justice. The evidence was undisputed that in a case pending
before Judge Bryan, then-attorney Decker failed to inform Wells Fargo’s counsel
about his representation of Judge Bryan, even though the case was set for trial and
the parties were both preparing for trial and attempting to negotiate a settlement,
which ultimately occurred. Wells Fargo’s counsel testified that he did not learn
5. Judge Decker contends that the rule and statute are a violation of his right
to free speech. However, we decline to rule on the constitutionality of section
105.071 or the provisions of the Code of Judicial Conduct that prohibit a candidate
from publicly stating his or her affiliation with or support for a political party. The
constitutional claim was not fully litigated in the JQC proceeding. Moreover, as to
the challenge to section 105.071(3), the State of Florida was not given an
opportunity to be heard as to the constitutionality of the state statute. Although this
was not a state judicial proceeding for which notice to the State Attorney General
is required, see section 86.091, Florida Statutes, we are reluctant to rule on the
constitutionality of a statute without the State having had an opportunity to make
its position known. We also decline to rule on Judge Decker’s constitutional claim
pertaining to that portion of Charge 3 in which the JQC charged Judge Decker with
violating Canon 7C(3) by stating his position as “pro-life.” This Canon cautions a
candidate to avoid expressing an opinion on a political issue. The JQC did not
expressly rule on this portion of the charge. Thus, we do not reach any
constitutional issues regarding Canon 7C(3).
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that then-attorney Decker was representing Judge Bryan at the time he presided
over the Wells Fargo case until approximately one year later when it was
mentioned to him by another attorney. If he had learned of it during the litigation,
Wells Fargo’s counsel testified, he would have moved Judge Bryan to recuse
himself and have the case assigned to another judge, which could have delayed
getting a trial date, if such had been necessary. Accordingly, we find that then-
attorney Decker’s conduct in this regard did violate Rule of Professional Conduct
4-8.4(d) by engaging in conduct prejudicial to the administration of justice.
We also find that then-attorney Decker’s conduct violated Rule of
Professional Conduct 4-8.4(c), which prohibits a lawyer, in pertinent part, from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Failing to advise opposing counsel that he was representing Judge Bryan in another
case and that Judge Bryan could not preside over the upcoming trial is a form of
dishonesty or misrepresentation by silence. By asking Wells Fargo’s counsel for
agreement to a short continuance, as then-attorney Decker did immediately before
the scheduled trial date, rather than advising counsel that the case would not be
going to trial as scheduled because of then-attorney Decker’s attorney-client
relationship with Judge Bryan, then-attorney Decker misled opposing counsel
concerning the status of the litigation. Opposing counsel had an absolute right to
know of the attorney-client relationship that the presiding judge had with then-
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attorney Decker, and had the right to make the decision, along with his client, as to
whether his client would be prejudiced by the existence of that relationship.
Because of then-attorney Decker’s silence, this could not occur.
Judge Decker’s defense to Charge 6 that he did not notify Wells Fargo’s
counsel about his representation of Judge Bryan because the case was likely to be
settled—and that Judge Bryan’s actions in the case were essentially
“ministerial”—are not defenses to violation of these rules. Nor is it a defense to
this conduct, as asserted by Judge Decker, that he did not feel he was getting any
benefit or advantage in the Wells Fargo litigation from his relationship with Judge
Bryan. Regardless of whether then-attorney Decker believed the case would settle
or that he was not getting any benefit, the evidence established that Wells Fargo
and its attorney expended time and energy preparing for a trial they believed was
imminent when, in fact, Judge Bryan would not have been able to hold the
scheduled trial. This occurred for no other reason than then-attorney Decker’s lack
of candor with counsel and his misrepresentation by silence.
Rule of Discipline 3-4.3, also found to have been violated by then-attorney
Decker’s conduct, is a general rule stating, in pertinent part, that commission of an
act by a lawyer that is contrary to honesty and justice may constitute a cause for
discipline. Because then-attorney Decker was found to have violated Rule of
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Professional Conduct 4-8.4, his conduct also falls within the purview of Rule of
Discipline 3-4.3.
Then-attorney Decker’s conduct, as alleged in Charge 7, in the common
representation of Judge Bryan, Dukes, and Woodington, was also proven by clear
and convincing evidence to have violated the Rules of Professional Conduct
concerning conflict of interest and proper attorney conduct in common
representation of multiple clients. Judge Decker testified that TD Bank’s suit
against his three clients—Dukes, Woodington, and Judge Bryan as Trustees of the
BWD—arose out of a loan made to secure the purchase of certain Bradford County
property, and that each client had personally guaranteed the loan. Judge Decker
agreed that the BWD trust agreement contained an indemnification provision that
if one trustee pays more than his share, the other trustees would owe the paying
trustee pro rata. Accordingly, each client had the right to be fully informed about
the risk of common representation in light of the possible conflicts that could arise
due to the obligations of the trustees to each other. Judge Decker conceded during
his testimony that he failed to adequately inform his clients concerning the benefits
and risks of this common representation.
Judge Decker also testified that he had no fee agreement with any of the
three clients, that he had no initial conference with Dukes or Woodington, as
Trustees, and that procedurally, he would discuss matters with Judge Bryan, who
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then-attorney Decker believed would then communicate with Dukes and
Woodington. Judge Decker testified that he thought this consultation with Judge
Bryan was sufficient. Judge Decker also testified that he did not think there was
any conflict in the common representation because Judge Bryan was the party who
would pay most of the money owed pursuant to any judgment or settlement in the
case. However, Judge Decker conceded that in light of the grievance filed
claiming conflict of interest, and in light of the confusion he believed Dukes
experienced, he should have met personally with the three clients and should have
obtained a written waiver of conflict after explaining to them the common interests
and risks involved.
Clear and convincing evidence also established that then-attorney Decker
had Dukes and Woodington execute quitclaim deeds to Judge Bryan in the
Bradford County foreclosure suit brought by TD Bank against Judge Bryan,
Dukes, Woodington, and BWD. Judge Decker explained that he sought these
deeds because Dukes had several judgments against him, and was subject to others
being placed, which would be a cloud on the title to the property that then-attorney
Decker hoped to deed to the plaintiff in lieu of foreclosure in order to reduce any
deficiency judgments against all three clients. Judge Decker testified that the
deeds were not done to benefit Judge Bryan, but to benefit all three clients in any
possible settlement of the foreclosure action. However, the evidence established
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that then-attorney Decker did not advise Dukes or Woodington that by doing so,
they would lose their interest in the property but still be jointly and severally
responsible for the debt owed. The Hearing Panel found this conduct violated Rule
of Professional Conduct 4-1.7(a), which includes prohibition against representation
of a client if that representation (1) will be directly adverse to another client or (2)
there is a substantial risk that representation of one client will be materially limited
by responsibilities to another client or former client.6
Even though then-attorney Decker had a benign reason for seeking the
quitclaim deeds from two of his clients in favor of the third, this does not excuse
then-attorney Decker’s failure to fully advise all his clients of not only the benefits,
but the risks, of common representation, especially when, as here, the clients are
jointly and severally responsible for payment of debt incurred to purchase the
property. Thus, we agree with the Hearing Panel that clear and convincing
evidence also demonstrated that then-attorney Decker’s conduct in his common
6. The Second Amended Notice of Formal Charges alleged that then-
attorney Decker’s conduct set forth in Charge 7 also violated Rule of Professional
Conduct 4-1.8(g), which prohibits a lawyer who represents two or more clients
from making an aggregate settlement unless each client gives informed consent
after the lawyer discloses the existence and nature of all claims involved and the
participation of each person in the settlement. However, the Hearing Panel did not
explain in its Findings how the partial settlement between Decker’s clients
constituted an “aggregate settlement” within the meaning of the rule. We do not
find that the conduct alleged and proven in Charge 7 violated Rule of Professional
Conduct 4-1.8(g).
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representation of Dukes, Woodington, and Judge Bryan violated Rule of
Professional Conduct 4-1.7(c). That rule provides that when representing multiple
clients in a single matter, “the consultation must include an explanation of the
implications of the common representation and the advantages and risks involved.”
The Hearing Panel also correctly found that then-attorney Decker violated
Rule of Professional Conduct 4-1.7(a) by continuing to represent all three clients
after separate litigation was brought by the Leland Bryan Revocable Living Trust
against Judge Bryan, Dukes, and Woodington in Polk County, and when Dukes
claimed his signature had been forged on the note at issue. Although then-attorney
Decker was not representing Dukes in that case, Dukes’ claim of forgery raised
conflicts among the three clients, whom then-attorney Decker continued to
represent. The Hearing Panel correctly concluded that then-attorney Decker
should have withdrawn from representation of all three clients when these conflicts
became apparent, and that his failure to do so violated Rule of Professional
Conduct 4-1.7(a). Instead of withdrawing from representation of all three clients,
then-attorney Decker ultimately withdrew from representing Dukes and
Woodington but continued to represent Judge Bryan. Clear and convincing
evidence established the facts underlying this portion of Charge 7 and we agree
with the Hearing Panel that then-attorney Decker should have withdrawn from
representing all three clients based on this obvious conflict among the three.
- 27 -
As to Charge 7, clear and convincing evidence established that then-attorney
Decker notified counsel for TD Bank some months before filing the bankruptcy
action for Judge Bryan that Judge Bryan was contemplating bankruptcy. We agree
with the Hearing Panel that this created an immediate conflict of interest between
Judge Bryan and the other clients requiring then-attorney Decker to withdraw from
representing all three of them. This conduct violated Rule of Professional Conduct
4-1.7(a) because bankruptcy by Judge Bryan would shield him while leaving the
other two clients vulnerable to the suit by TD Bank, and jointly and severally liable
for the entire loan amount. Judge Decker testified in his defense that Woodington
was also considering bankruptcy, but Judge Decker agreed that filing bankruptcy
for Woodington would have adversely affected the substantial debt Woodington
owed to Judge Bryan. Judge Decker testified he did not think this was a conflict
because Judge Bryan “did not ask me to do anything with respect to that [debt]”
and because Dukes and Woodington had their own bankruptcy counsel. Even so,
the defense that Dukes and Woodington could have filed for bankruptcy too, or
that Woodington sought other counsel to advise him on bankruptcy, does not
excuse or eliminate the conflict of interest violation established by the foregoing
conduct.
Clear and convincing evidence also established that then-attorney Decker
filed a bankruptcy petition and an application to appear as counsel in the
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bankruptcy case for Judge Bryan in which then-attorney Decker incorrectly stated
that he had no connection with any creditors of Judge Bryan or other parties of
interest. An amended application for representation was filed noting then-attorney
Decker’s former representation of Dukes, Woodington, and BWD in a suit brought
by TD Bank, but failing to disclose that then-attorney Decker continued to
represent the BWD trust and that then-attorney Decker had previously represented
Judge Bryan, Dukes, and Woodington in other lawsuits. This conduct violated
Rule of Professional Conduct 4-3.3, which makes it a violation for a lawyer to
make a false statement of material fact to a tribunal or fail to correct such a false
statement. These facts were admitted by Judge Decker and this violation was
established by clear and convincing evidence. However, Judge Decker’s defense
that the omissions were inadvertent, which was also the opinion of the bankruptcy
judge who testified on Judge Decker’s behalf, diminishes the fact that the violation
occurred.
Also in Charge 7, the Hearing Panel alleged and the evidence demonstrated
that before being allowed to withdraw as counsel for Woodington and Dukes, and
shortly after the bankruptcy petition was filed for Judge Bryan, then-attorney
Decker sent an e-mail to counsel for TD Bank in the foreclosure suit related to the
loan on the Bradford County property. Judge Decker admitted that in the e-mail he
stated that he consented to relief from the bankruptcy stay for TD Bank, but noted
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that TD Bank could still “pursue its remedies against the other two defendants.”
Judge Decker denied that this e-mail to TD Bank counsel was an “invitation” for
TD Bank to pursue claims against Dukes and Woodington, and said that the e-mail
was just a statement of the law and that TD Bank was already going to look to
them for payment. The attorney for TD Bank also testified at the hearing that he
understood the e-mail as simply stating a known fact regarding those two
defendants.
Regardless of whether it was a known fact that TD Bank was pursuing and
would continue to pursue its remedies against Dukes and Woodington, defendants
who were not protected by a bankruptcy stay, this e-mail violated Rule of
Professional Conduct 4-1.7(a), which prohibits a lawyer from representing a client
if that representation is directly adverse to another client. Even though both
lawyers knew that TD Bank was pursuing and would continue to pursue Dukes and
Woodington, the e-mail pointedly reminded TD Bank’s counsel of that fact to the
possible detriment of Dukes and Woodington. The Hearing Panel correctly found
that the e-mail also violated Rules of Professional Conduct 4-1.8(b) and 4-1.9(b),
which prohibit a lawyer from using information relating to the representation of
one client, or former client, to the disadvantage of another client or former client.
In sum, as to Charge 7, we conclude that clear and convincing evidence
supports the Hearing Panel’s findings that then-attorney Decker’s conduct in
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relation to his common representation of clients Dukes, Woodington, and Judge
Bryan violated a number of the Rules Regulating The Florida Bar concerning
representation of multiple clients, conflicts of interest, and candor to the tribunal.
Consolidated Charges 8 through 16 dealt with a foreclosure case brought by
Compass Bank in which then-attorney Decker represented Matthew and Jennifer
Ellison and their entity, Woods Marina, LLC. The Hearing Panel concluded that
“[t]hrough a complex series of events, Judge Decker became involved in secret
meetings with some, but not all, parties” and violated Rule of Professional Conduct
4-4.2(a), which prohibits communication with a person represented by other
counsel without consent of that counsel. The Hearing Panel found relative to these
same facts that then-attorney Decker violated Rule of Professional Conduct 4-
3.4(a), which, in pertinent part, prohibits a lawyer from obstructing another party’s
access to evidence or concealing a document or material that the lawyer knows or
reasonably should have known is relevant to a pending matter, or assisting another
person in doing so.
We conclude that one of the most serious violations found by the Hearing
Panel—Charge 8 relating to prohibited communication with a represented party—
is not supported by the evidence. Rule of Professional Conduct 4-4.2(a) requires
that an attorney not meet with a person counsel knows is represented about the
subject of the representation without permission from that person’s counsel. The
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evidence established that then-attorney Decker, along with his client, Jennifer
Ellison, who is also an attorney, met with Job White to discuss possible settlement
of a portion of the Compass Bank litigation. However, the evidence is
uncontroverted that then-attorney Decker was directly and unequivocally informed
by White that he was no longer represented by counsel of record Brent Siegel.7
We conclude that then-attorney Decker did not have an obligation to confirm
that White was no longer represented by counsel. We also conclude that White’s
status as an unrepresented party was not dependent upon his former counsel’s
compliance with the requirements of Florida Rule of Judicial Administration
2.505(f)(1) regarding withdrawal of an attorney. A party who like White has
decided that he no longer desires to be represented by counsel should not be
chained to counsel for purposes of Rule of Professional Conduct 4-4.2(a) until
counsel withdraws under Florida Rule of Judicial Administration 2.505(f)(1). And
a lawyer like then-attorney Decker should not be required to further investigate the
status of the representation once the party has stated unequivocally that he is not
represented by counsel. See In re Users Sys. Servs, Inc., 22 S.W.3d 331, 334-35
(Tex. 1999) (holding both that (a) rule of professional responsibility prohibiting
communication by an attorney with a person represented by other counsel
7. Siegel had represented Job and Frances Grace White, Frederic and Kelly
Shore, and others in the foreclosure action.
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ordinarily “does not require an attorney to contact a person’s former attorney to
confirm the person’s statement that representation has been terminated before
communicating with the person” and that (b) “the client’s right to terminate the
relationship” is not “limited by the attorney’s responsibilities to a court as counsel
of record for the client”). We therefore disagree with the Hearing Panel’s
conclusion that then-attorney Decker’s conduct violated Rule of Professional
Conduct 4-4.2(a).8
We further conclude that the related violation for improperly withholding
information from White’s prior counsel is not supported by the evidence. Rule of
Professional Conduct 4-3.4(a), in pertinent part, prohibits a lawyer from
obstructing another party’s access to evidence or concealing a document or
material that the lawyer knows or reasonably should have known is relevant to a
pending matter, or assisting another person in doing so. The evidence established
that then-attorney Decker facilitated a confidential settlement agreement between
8. The concurrence erroneously relies on The Florida Bar v. Feinberg, 760
So. 2d 933 (Fla. 2000), to support the conclusion that then-attorney Decker
violated Rule 4-4.2(a). Feinberg is readily distinguishable. First, in Feinberg there
was no challenge to the referee’s conclusion that a violation of the rule had been
committed. Our analysis in Feinberg therefore necessarily took the violation as
established, and the case contains no holding regarding the circumstances that
support finding a violation of the rule. Second, we concluded that Feinberg
“exercised poor judgment by affirmatively misleading and being untruthful with
opposing counsel, and continuing to meet with the defendant after realizing that,
contrary to the defendant’s statements, he was represented by counsel.” Id. at 939.
The circumstances present here are wholly dissimilar.
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his client and the Whites to protect the document from disclosure. However, there
is no evidence that then-attorney Decker unlawfully obstructed access to evidence
or concealed any document from opposing counsel. We therefore disagree with
the Hearing Panel’s conclusion that then-attorney Decker’s conduct in this regard
violated Rule of Professional Conduct 4-3.4(a); Rule 4-8.4(a), which prohibits a
lawyer from violating the Rules of Professional Conduct or assisting another to do
so; Rule 4-8.4(c), which prohibits a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation; and Rule of Discipline 3-4.3, which
prohibits the commission of an act contrary to justice.
The forgoing violations found in Charges 1, 3, 6, and 7 were established by
clear and convincing evidence and support the imposition of a serious sanction in
this case, which we discuss next.
DISCIPLINE
The Hearing Panel recommended a ninety-day suspension, public
reprimand, and payment of costs of the proceedings as the discipline to be imposed
for the numerous violations discussed above. We are aware that in the past, a
single instance of campaign violation has warranted only a public reprimand, or a
reprimand and a fine. See, e.g., In re Dempsey, 29 So. 3d 1030, 1031, 1034 (Fla.
2010) (public reprimand warranted where Dempsey misrepresented her position
and qualifications during her campaign); In re Colodny, 51 So. 3d 430, 432-33
- 34 -
(Fla. 2010) (campaign finance violation based on advice of counsel and
interpretation of statutes warranted a reprimand and a fine). For multiple campaign
finance violations, this Court has imposed more severe discipline. See, e.g., In re
Rodriguez, 829 So. 2d 857, 861 (Fla. 2002) (imposing a four-month suspension,
$40,000 fine, costs, and a public reprimand for multiple campaign violations).
Judge Decker’s misconduct unquestionably warrants the imposition of a
serious sanction. In addition to campaign violations, then-attorney Decker (1)
violated the Rules of Professional Conduct in failing to advise opposing counsel in
the Wells Fargo litigation that he was currently representing the presiding judge in
other litigation; (2) violated numerous Rules of Professional Conduct concerning
conflict of interest in common representation, including failing to counsel and
advise the three clients of the risks and advantages of common representation,
failing to withdraw when conflicts were apparent, engaging in representation of
one client to the detriment of other current or former clients, reminding opposing
counsel in the TD Bank case that even though Judge Bryan was in bankruptcy
court, TD Bank could still pursue its claims against Dukes and Woodington; and
(3) violated the Rules of Professional Conduct requiring candor to the tribunal by
incorrectly stating the status of his representation of Dukes, Woodington, and
BWD trust on filings made with the bankruptcy court in Judge Bryan’s case.
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When it became apparent numerous times that there was conflict among
then-attorney Decker’s clients, then-attorney Decker should have immediately
withdrawn from all representation. His inability to understand the serious conflict
that existed, and to recognize that conflict when it became apparent on more than
one occasion, demonstrates a critical lack of care concerning his clients.
In addition, there were other serious violations of the Rules of Professional
Conduct, including then-attorney Decker’s failure to advise opposing counsel in
the Wells Fargo case that then-attorney Decker had undertaken representation of
Judge Bryan, the presiding judge in the Wells Fargo case. All the violations
established by the evidence in this case demonstrate a pattern of poor judgment,
and lack of concern for jointly represented clients and for other counsel and their
clients. Judge Decker violated numerous Rules of Professional Conduct and
Canons of Judicial Conduct, as well as a state statute, and has “exhibited a pattern
of behavior that evidences a lack of ethical judgment, along with a lack of
understanding and concomitant contrition about the harm caused to his clients and
to the public’s trust in the legal system,” as the Hearing Panel found. The Hearing
Panel was also concerned, as are we, by the fact that Judge Decker was
reprimanded by The Florida Bar in the past. This prior discipline, along with the
numerous violations proven in this case, demonstrate that Judge Decker “evinces a
lack of ability to identify situations that lead to the appearance of impropriety.”
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However, no evidence suggests that any of Judge Decker’s misconduct in
the practice of law caused significant harm to a client or another party. Significant
harm is, of course, not necessary to establish an ethical violation. But the absence
of such harm is a relevant consideration in determining the appropriate sanction to
be imposed. Similarly, simple errors should be treated less severely than willful
misrepresentations. So Judge Decker’s culpability for bankruptcy court filings
containing misstatements is certainly diminished by the fact that the misstatements
were inadvertent.
This proceeding is not for the purpose of inflicting punishment, but to gauge
a judge’s fitness to serve. See, e.g., In re McMillan, 797 So. 2d 560, 571 (Fla.
2001). To make this determination, we examine judicial misconduct for present
fitness to hold office “from two perspectives: its effect on the public’s trust and
confidence in the judiciary as reflected in its impact on the judge’s standing in the
community, and the degree to which past misconduct points to future misconduct
fundamentally inconsistent with the responsibilities of judicial office.” In re
Murphy, 181 So. 3d 1169, 1177 (Fla. 2015) (quoting In re Sloop, 946 So. 2d 1046,
1055 (Fla. 2006)). Although the series of acts by Judge Decker involving
misconduct requires the imposition of a significant sanction, we have concluded
that it does not merit removal from office. The conduct unquestionably is
“conduct unbecoming a member of the judiciary” but it does not “demonstrat[e] a
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present unfitness to hold office.” Art. V, § 12(c)(1), Fla. Const. For all these
reasons, and based on the seriousness and cumulative nature of the numerous
violations proven, we impose on Judge Decker a six-month suspension, public
reprimand, and payment of costs of the proceedings.
CONCLUSION
Accordingly, due to the pattern of misconduct involving numerous separate
and cumulative violations proven, Judge Andrew J. Decker, III, is hereby
suspended without pay for six months from his duties as a judge of the Third
Judicial Circuit effective immediately. We order Judge Decker to pay the costs of
these proceedings, and we remand this case to the JQC for a determination of the
amount of such costs. We also command Judge Decker to appear before this Court
for the administration of a public reprimand at a time to be set by the Clerk of this
Court.
It is so ordered.
LABARGA, C.J., and QUINCE, CANADY, POLSTON, and LAWSON, JJ.,
concur.
PARIENTE, J., concurs in result with an opinion, in which LEWIS, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring in result.
I agree with the majority that “Judge Decker’s misconduct unquestionably
warrants the imposition of a serious sanction.” Majority op. at 35. I also agree
- 38 -
with the increase of sanctions from the JQC’s recommended 90-day suspension
without pay to a six-month suspension without pay. The increase in sanctions is
appropriate given the seriousness of the multiple charges against Judge Decker,
which would have warranted a rehabilitative suspension.9 As the JQC found, the
“cumulative effect of these misdeeds coupled with the fact that Judge Decker had
been reprimanded by [T]he Florida Bar in the past, evinces a lack of ability to
identify situations that lead to the appearance of impropriety.”
Although I agree with the sanctions the majority imposes, as I explain in
further detail below, I cannot agree with the majority that consolidated Charge 8
found by the JQC, relating to prohibited communication with a represented party,
“is not supported by the evidence.” Majority op. at 31. Accordingly, I concur in
result because I disagree with the majority’s rejection of that charge.
I would not reject the JQC’s findings regarding consolidated Charge 8,
which relates to then-attorney Decker’s prohibited communication with a
9. With a rehabilitative suspension, when an attorney is suspended for a
period of time of more than ninety days but less than three years, the attorney is
required to petition The Florida Bar for readmission to practice law and “shall
require proof of rehabilitation.” Std. 2.3, Fla. Std. for Imposing Lawyer Sanctions,
The Florida Bar (last updated May 2015). If he had been under a rehabilitative
suspension, Judge Decker would have been ineligible to become a judge unless he
had been readmitted to the practice of law. See In re Advisory Op. to Governor re
Comm’n of Elected Judge, 17 So. 3d 265, 267 (Fla. 2009) (explaining that “a
lawyer who is suspended from the practice of law fails to satisfy the constitutional
eligibility requirements for a circuit court judgeship”).
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represented party, Job White, during “secret meetings” between then-attorney
Decker’s clients, Jennifer and Matthew Ellison, and Job White. As the JQC found,
then-attorney Decker’s clients were defendants in a foreclosure action brought by
Compass Bank. In June 2014, then-attorney Decker “served an answer on Brent C.
Siegel . . . who represented Fred and Kelly Shore, Ted Burt, and Job White and his
wife, Frances Grace White, and various entities in which Burt and Shore were
involved.” Some of these parties who Seigel represented “were actively involved
in efforts to reinstate, refinance, or even buy the Compass Bank loan, probably
through a third party, in an effort to save the condominium project for which the
loan was made.” Unknown to Siegel’s clients, however, is that in October 2014
“the Ellisons began their own discussions and negotiations with Compass Bank to
buy the loan for their own benefit,” thereby becoming competitors with Siegel’s
clients seeking to purchase the Compass Bank loan.
The JQC found that, in attempting to purchase the Compass Bank loan, then-
attorney Decker and Jennifer Ellison, also a lawyer, “met in secret” with Job
White. The purpose of the meeting was “to discuss a possible settlement of the
Compass Bank case as to the Whites only. Pursuant to this settlement the Whites
would provide funds that the Ellisons would use to help them buy the Compass
loan, and, if the Ellisons were successful in doing so, the Ellisons as the new
owners of the Compass loan, would dismiss all claims against the Whites.” When
- 40 -
then-attorney Decker met with Job White, he knew that the Whites already had
counsel, Siegel, who had not sought or been given leave to withdraw from
representing the Whites. Nonetheless, one day after the initial “secret meeting”
between the Whites, the Ellisons, and then-attorney Decker, “a deal was reached,
was reduced to writing and was executed.”
Judge Decker’s defense to his actions, which the majority accepts, is that
White told then-attorney Decker he was no longer represented by counsel. But,
then-attorney Decker knew White had been represented by Siegel. Indeed, then-
attorney Decker had “served an answer on” Siegel in the ongoing litigation just
four months prior to secretly meeting with White. After then-attorney Decker was
informed by Job White that he was not represented in forming the secret
agreement, then-attorney Decker made no attempt to verify whether the Whites
had indeed discharged Siegel or whether Siegel had filed a motion to withdraw
with the circuit court. Siegel did not learn of the secret agreement that his clients
had entered into with then-attorney Decker’s client for more than a month after it
was executed. In fact, as the JQC noted, the settlement agreement between the
Ellisons and the Whites contained, in “an apparent effort to protect the secrecy of
the settlement,” a confidentiality provision which stated “that the parties shall not
disclose the terms of the agreement except to their respective legal counsel.” This
provision makes little sense if Job White was no longer represented by Siegel.
- 41 -
Indeed, Siegel testified at the JQC hearing that he was still representing the Whites
when then-attorney Decker met with Job White, did not give any consent to then-
attorney Decker to meet with his client, and that he was “stunned” when he learned
of the “secret meeting.”
The majority excuses this violation by stating that a “party who like White
has decided that he no longer desires to be represented by counsel should not be
chained to counsel for purposes of Rule of Professional Conduct 4-4.2(a) until
counsel withdraws under Florida Rule of Judicial Administration 2.505(f)(1).”
Majority op. at 32. However, as the JQC’s finding reflects, after a party claims he
or she has discharged counsel of record, there are important reasons to verify with
the counsel of record that counsel has, in fact, been discharged or has withdrawn.
In fact, in this case, there appears to be a factual dispute as to whether White had
actually discharged Siegel from representation.
We have emphasized the utmost importance of this verification in criminal
cases. See The Florida Bar v. Feinberg, 760 So. 2d 933, 939-40 (Fla. 2000)
(holding that a prosecutor’s actions in meeting with a defendant who had counsel
after the defendant told the prosecutor he had discharged his counsel “cast a
shadow over the integrity of our adversarial system,” and explaining “that
attorneys must be extremely cautious in determining whether to speak with an
individual who appears to be represented by counsel”). While the stakes are
- 42 -
different in a civil matter, the importance of confirming with opposing counsel that
counsel has actually withdrawn or has been discharged before proceeding to meet
with the formerly represented party ensures that a shadow is not cast over the
integrity of our adversarial system.
According to Florida Rule of Professional Conduct 4-4.2(a), “a lawyer must
not communicate about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter.” The comment to Rule
4-4.2 further provides, “This means that the lawyer has actual knowledge of the
fact of the representation; but such actual knowledge may be inferred from the
circumstances. . . . Thus, the lawyer cannot evade the requirement of obtaining the
consent of counsel by closing eyes to the obvious.”
In this case, Judge Decker alleges that he had “actual knowledge” that White
was not represented because White personally advised him of that fact. Yet, this
was not the full extent of then-attorney Decker’s knowledge about White’s
representation. Then-attorney Decker also knew that White had been previously
represented in the litigation. Furthermore, as the JQC found, the settlement
agreement between the parties provided that the terms of the agreement could only
be discussed with legal counsel. White would have no need for a provision
allowing him to inform counsel of the settlement agreement if he did not already
have counsel. Therefore, especially in the context of these “secret meetings,”
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which could have undermined Siegel’s other clients who also sought to purchase
the Compass Bank loan, Judge Decker should not be shielded from professional
responsibility by “closing [his] eyes to the obvious.” Judge Decker was not
cautious in this regard, and his good intentions pertaining to his clients do not
overcome the harm that is, or can be, occasioned by meeting with someone who is
represented by counsel without counsel’s permission during ongoing litigation.
Lastly, Judge Decker’s ethical missteps as an attorney, in my view, are
compounded by the false and otherwise unethical statements he made on the
campaign trail. First, he stated “at a televised debate that he had never been
accused of a conflict of interest.” Majority op. at 12. This was false, as “less than
four months earlier, a formal complaint was filed with The Florida Bar by Daniel
Dukes, a former client [of then-attorney Decker’s], alleging conflict of interest.”
Id. at 3. Then-attorney Decker knew that he had been previously accused of a
conflict of interest because he had “responded to that complaint with a twelve-page
letter only two and one half months before the debate.” Id. While Judge Decker
admitted his guilt as to this misconduct, he has, as the JQC noted in its findings,
maintained his “steadfast position that he has done nothing wrong.”
Additionally, while campaigning for his judicial seat, then-attorney Decker
affiliated himself with the Republican Party. At a judicial forum sponsored by the
Lafayette County Republican Executive Committee, then-attorney Decker stated to
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the audience that he is a registered Republican and that his former affiliation with
the Democratic Party “was an error.” Id. at 4. I agree with the majority that this
conduct “was also proven and violated Canon 7C(3) of the Code of Judicial
Conduct,” as well Rule 4-8.2(b) and section 105.071(3), Florida Statutes. Majority
op. at 20-21.
This Court has “often pointed out that judges should be held to higher ethical
standards than lawyers by virtue of their position in the judiciary and the impact of
their conduct on public confidence in an impartial justice system.” In re
McMillian, 797 So. 2d 560, 571 (Fla. 2001). Boldly stating that one is a member
of a political party while campaigning for a nonpartisan judicial office and
misrepresenting to voters one’s record on ethics is discordant with the “high
standard of ethical and professional conduct” required of judges. In re Murphy,
181 So. 3d 1169, 1177 (Fla. 2015).
Unlike past instances when this Court has removed a judge from the bench,
however, Judge Decker’s conduct is not so “fundamentally inconsistent with the
responsibilities of judicial office” as to erode confidence in the judiciary and
thereby necessitate removal. Id. at 1179. For all these reasons, I concur in the
strong message this Court sends by imposing a six-month suspension without pay
and a public reprimand. As the JQC remarked, “it is imperative that Judge Decker
spend a period of time reflecting upon the far-reaching consequences of his
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actions.” Unfortunately, this suspension will negatively affect the other judges of
the Third Judicial Circuit, who will have to absorb Judge Decker’s workload.
However, the purpose of the JQC proceedings is to “gauge a judge’s fitness to
serve,” majority op. at 37, and by all accounts, despite his professional misconduct
as an attorney, Judge Decker has ably served the citizens of the Third Judicial
Circuit since assuming the bench. The sanction this Court imposes ensures that the
Third Judicial Circuit will not be deprived of Judge Decker’s judicial service on a
permanent basis.
LEWIS, J., concurs.
Original Proceeding – Judicial Qualifications Commission
Judge Kerry I. Evander, Chair, Ricardo Morales, III, Past Chair, and Michael Louis
Schneider, Executive Director and General Counsel, Tallahassee, Florida; Fred
Wallace Pope, Jr., Special Counsel, Johnson, Pope, Bokor, Ruppel & Burns, LLP,
Clearwater, Florida; Judge Krista Marx, Chair of the Hearing Panel, Palm Beach
Gardens, Florida; and John R. Beranek, Counsel to the Hearing Panel, Ausley &
McMullen, Tallahassee, Florida,
for Florida Judicial Qualifications Commission, Petitioner
Andrew Joseph Decker, IV of The Decker Law Firm, P.A., Live Oak, Florida, and
Scott Kevork Tozian and Gwendolyn H. Daniel of Smith, Tozian, Daniel & Davis,
P.A., Tampa, Florida,
for Judge Andrew J. Decker, III, Respondent
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