The Florida Bar v. Derek Vashon James

Supreme Court of Florida
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No. SC20-128
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THE FLORIDA BAR,
Complainant,
vs.
DEREK VASHON JAMES,
Respondent.
November 18, 2021
PER CURIAM.
We have for review a referee’s report recommending that
Respondent, Derek Vashon James, be found guilty of professional
misconduct in violation of the Rules Regulating the Florida Bar (Bar
Rules), and that he be suspended from the practice of law for thirty
days as a sanction for his misconduct. The Florida Bar (Bar) filed a
notice of intent to seek review of the referee’s report, challenging the
referee’s recommendation that James be found not guilty of
violating Bar Rule 4-8.4(d), as well as the referee’s recommended
sanction. We have jurisdiction. See art. V, § 15, Fla. Const. For
the reasons discussed below, we approve the referee’s findings of
fact and recommendations as to guilt, except for the
recommendation that James be found not guilty of violating Bar
Rule 4-8.4(d), which we disapprove, and find James guilty of
violating the rule. We also disapprove the referee’s recommended
discipline, and instead, we suspend James from the practice of law
for ninety-one days.
BACKGROUND
On January 28, 2020, the Bar filed a complaint against
James, alleging that he engaged in misconduct by coaching a
witness during a deposition in a contested worker’s compensation
matter and making misrepresentations regarding his misconduct.
The Bar’s complaint was referred to a referee, who held a hearing on
both guilt and discipline and submitted a report with the following
findings and recommendations.
James represented the employer in a worker’s compensation
case. On July 31, 2018, Renee Gray, the adjuster who worked for
the employer, was deposed via telephone. Gray, James, and the
claimant’s counsel, Toni Villaverde, attended the deposition via
telephone, from different locations. Because the deposition was not
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conducted by video, the court reporter refused to swear Gray in as a
witness, making her testimony unsworn. While the deposition was
in progress and Villaverde was questioning Gray, James sent text
messages to Gray regarding her testimony. The texts included
coaching and specific directions on how to respond to Villaverde’s
questions.
The following messages were exchanged between Gray and
James during Villaverde’s questioning of Gray:
10:19 a.m. (James): You don’t
10:20 a.m. (James): As to settlement checks expiration
10:20 a.m. (James): You remember the deposition but not
discussing checks
10:20 a.m. (James): yes
10:21 a.m. (James): Just review notes from 02/20/2018
forward
10:23 a.m. (James): Be careful just say
10:23 a.m. (James): You may not see today
10:25 a.m. (James): Take a break in 15 minutes?
10:25 a.m. (Gray): Up to you.
Villaverde could hear typing sounds and asked Gray and
James if they were engaging in texting during the deposition.
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James denied texting Gray and stated he was only receiving a text
from his daughter. Villaverde asked James to stop texting and put
his phone away, and James agreed. James misrepresented to
Villaverde that he had concluded the text messaging when in fact
he had not. After a break, and after Villaverde resumed questioning
Gray, James inadvertently sent the following text messages
intended for Gray to Villaverde:
11:53 a.m. (James): Just say it anyway
11:53 a.m. (James): Just say 03/28
11:54 a.m. (James): In addition to the 03/28/2018 email
containing the signed release I show . . .
11:55 a.m. (James): Don’t give an absolute answer
11:55 a.m. (James): All I can see at this time but I cannot rule
out existence
11:55 a.m. (James): It’s a trap
11:56 a.m. (James): Then say that is my best answer at this
time.
Once Villaverde noticed the texts, she stopped the deposition.
She later filed a motion for production and in-camera inspection of
all the texts sent during the deposition. After the Judge of
Compensation Claims granted the motion, James produced two
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pages of text messages but never produced any texts involving his
daughter, despite being ordered to do so by the judge, and despite
his assurances to Villaverde during the deposition that the typing
sounds she heard involved a text received from his daughter. The
judge found that the text messages were sent during the deposition,
not during a break in the questioning, and that they were not
protected by attorney-client privilege, contrary to James’s claims.
The parties conducted a second deposition of the witness on
February 19, 2019.
During the disciplinary proceedings, James testified that he
was unable to retrieve the texts from his daughter due to his own
technological limitations. He explained that worker’s compensation
proceedings are informal, and he felt compelled to aid his witness
during the deposition because Villaverde was constantly talking
over Gray’s answers or interrupting with speaking objections, and
he felt Gray was being mistreated. The referee found that James’s
texts to Gray while she was being questioned, telling her what to
say, how to answer, to avoid providing certain information, to
remember a deposition but not discuss certain checks, and to not
give an absolute answer were dishonest.
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Furthermore, the record shows that after the deposition
ended, and in the days following the deposition, James tried to
convince Villaverde that he sent the texts to Gray during the break,
not during the questioning. During a hearing on Villaverde’s
motion for production and in-camera inspection, James failed to be
transparent and forthright with the judge regarding his texts to
Gray. He made it appear that he only texted his wife and daughter
during the deposition and that he sent the text messages to Gray
during the break in the deposition.
The referee recommends that James be found guilty of
violating Bar Rules: 3-4.3 (Misconduct and Minor Misconduct) and
4-3.4(a) (“A lawyer must not . . . unlawfully obstruct another party’s
access to evidence or otherwise unlawfully alter, destroy, or conceal
a document . . . .”). However, the referee recommends that James
be found not guilty of violating rule 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 . . . .”) as well as others.
The referee found the following aggravating factors were present:
(1) dishonest or selfish motive; (2) refusal to acknowledge the
wrongful nature of the conduct; and (3) substantial experience in
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the practice of law. In mitigation, the referee found (1) absence of a
prior disciplinary record; (2) full and free disclosure to the Bar or
cooperative attitude toward the proceedings; and (3) good character
or reputation.
The referee recommends that James be suspended from the
practice of law for thirty days and that he be assessed the Bar’s
costs. The Bar seeks review of the referee’s recommendation that
James be found not guilty of violating Bar Rule 4-8.4(d), as well as
the recommended sanction.
ANALYSIS
A. The Referee’s Recommendation as to Guilt.
To begin, the referee’s findings of fact are neither in dispute
nor lacking in evidentiary support. We therefore approve them
without further comment. The Bar challenges the referee’s
recommendation of no guilt as to Bar Rule 4-8.4(d), contending that
the referee’s own findings, as well as the record, support a contrary
conclusion. The Court must consider whether the referee’s
recommendation that James be found not guilty of violating Bar
Rule 4-8.4(d) is supported. This Court has repeatedly stated that
the referee’s factual findings must be sufficient under the applicable
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rules to support the recommendations regarding guilt. See Fla. Bar
v. Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005); Fla. Bar v. Spear,
887 So. 2d 1242, 1245 (Fla. 2004). The party challenging the
referee’s finding of fact and recommendations as to guilt has the
burden to demonstrate “that there is no evidence in the record to
support those findings or that the record evidence clearly
contradicts the conclusions.” Fla. Bar v. Germain, 957 So. 2d 613,
620 (Fla. 2007).
Bar Rule 4-8.4(d) states, “A lawyer shall not . . . engage in
conduct in connection with the practice of law that is prejudicial to
the administration of justice . . . .” R. Regulating Fla. Bar 4-8.4(d).
This Court has determined that dishonesty in connection with the
practice of law is prejudicial to the administration of justice. See
Fla. Bar v. Feinberg, 760 So. 2d 933, 938 (Fla. 2000). Here, the
referee specifically found that James’s response that he was just
responding to his daughter when in fact texts were being sent to
Gray was misleading and a matter contrary to honesty. He also
found that James misrepresented to Villaverde that he had
concluded the text messaging when in fact he had not. The referee
further found that James’s texts to Gray while she was being
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questioned, telling her what to say, how to answer, to avoid
providing certain information, to remember a deposition but not
discuss certain checks, and to not give an absolute answer were
dishonest. James’s dishonesty is clear from the record, and we find
him guilty of violating Bar Rule 4-8.4(d).
B. Discipline
We now turn to the referee’s recommended discipline, a thirty-
day suspension. In reviewing a referee’s recommended discipline,
this Court’s scope of review is broader than that afforded to the
referee’s findings of fact because, ultimately, it is this Court’s
responsibility to order the appropriate sanction. See Fla. Bar v.
Picon, 205 So. 3d 759, 765 (Fla. 2016); Fla. Bar v. Anderson, 538
So. 2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla. Const. At the
same time, this Court will not second-guess the referee’s
recommended discipline as long as it has a reasonable basis in
existing case law and the Florida Standards for Imposing Lawyer
Sanctions. See Picon, 205 So. 3d at 765; Fla. Bar v. Temmer, 753
So. 2d 555, 558 (Fla. 1999).
The referee recommended a thirty-day suspension, finding
that James’s conduct was not as egregious as in other cases
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because he assisted Gray with dates that were already given. We
agree with the referee that a suspension is the appropriate sanction
in this case. See Fla. Stds. Imposing Law. Sancs. 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.”). James engaged in conduct aimed at defeating the
opposing party’s lawful attempts to obtain evidence, undermining
the adversarial process, and as a result, the trial court’s
intervention was required. He then made misrepresentations to
cover up his misconduct. However, we disagree with the referee’s
conclusion that James’s conduct was not sufficiently egregious to
warrant a more severe sanction.
In Florida Bar v. Nicnick, 963 So. 2d 219 (Fla. 2007), a lawyer
with a prior ten-day suspension for misconduct concealed a child
support settlement agreement from an opposing counsel before
presenting it to opposing counsel’s client. Nicnick continued to
conceal the document from opposing counsel after it was returned
to him, purportedly executed by opposing counsel’s client. Id. at
221. Nicnick alleged that he felt compelled to investigate the
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authenticity of the document before turning it over to opposing
counsel and believed opposing counsel was aware of the settlement
agreement. Id. at 223. We found that Nicnick’s failure to share the
settlement agreement with opposing counsel was deceptive and
suspended him for ninety-one days. Id. at 225.
Here, as in Nicnick, James was deceptive when he secretly sent
the messages to Gray and then denied doing so when Villaverde
questioned them about the texts. He continued his deception after
the deposition, claiming he sent the texts during a break in the
deposition. While James does not have a disciplinary history like
Nicnick did, we find James’s behavior is even more egregious.
James obstructed opposing counsel’s access to evidence when
he secretly coached Gray while she was being questioned, telling
her how to answer Villaverde’s questions and directing her to avoid
providing certain information. This conduct continued even after
he assured Villaverde that he would stop texting during the
deposition. Thereafter, he repeatedly misrepresented to Villaverde
that he did not send text messages to Gray during the deposition.
Particularly egregious was his failure to be forthright with the Judge
of Compensation Claims about sending the text messages to Gray
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and about when he sent them. We find that James’s behavior
warrants a ninety-one-day suspension.
CONCLUSION
Therefore, we disapprove the referee’s recommended sanction
and instead suspend James from the practice of law for ninety-one
days. The suspension will be effective thirty days from the filing of
this opinion so that James can close out his practice and protect
the interests of existing clients. If James 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 suspension effective immediately. James shall fully
comply with Rule Regulating the Florida Bar 3-5.1(h). James shall
also fully comply with Rule Regulating the Florida Bar 3-6.1, if
applicable. In addition, James shall accept no new business from
the date this order is filed until he is reinstated. James is further
directed to comply with all other terms and conditions of the report.
Judgment is entered for The Florida Bar, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300, for recovery of costs from
Derek Vashon James in the amount of $2,851.80, for which sum let
execution issue.
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It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, MUÑIZ, and
COURIEL, JJ., concur.
LAWSON, J., concurs in part and dissents in part with an opinion,
in which GROSSHANS, J., concurs.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THIS SUSPENSION.
LAWSON, J., concurring in part and dissenting in part.
I agree with the majority’s conclusion that the referee’s own
findings, as well as the record, support a determination that
James’s conduct violated Rule Regulating the Florida Bar 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 . . .
.”), majority op. at 7-9, and concur in that part of the majority
opinion. However, in light of the referee’s mitigation findings and
ability to personally assess both James’s demeanor as well as the
credibility of his character evidence, I would follow the referee’s
recommendation to the extent of imposing a nonrehabilitative
suspension.
We have previously stated that “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 Florida
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Standards for Imposing Lawyer Sanctions.” Fla. Bar v. Picon, 205
So. 3d 759, 765 (Fla. 2016) (citing Fla. Bar v. Temmer, 753 So. 2d
555, 558 (Fla. 1999)). Although I recognize the very serious nature
of James’s misconduct, I would not second-guess the referee’s
recommendation to impose a nonrehabilitative suspension here.
The referee found that James demonstrated cooperation by
voluntarily producing text messages between himself and the
witness beyond that which was required by the order of the Judge
of Compensation Claims. The referee further noted that James’s
character witnesses, two attorneys with many years of experience
practicing in the same field as James, testified to his well-
established reputation for being honest and fair within the worker’s
compensation community. This character testimony suggests that
James’s misconduct here is an isolated incident.
When reviewing James’s conduct, the referee considered case
law where the Court imposed a ninety-one-day rehabilitative
suspension and noted that the conduct in those cases was more
egregious than James’s conduct. One such case was Florida Bar v.
Berthiaume, 78 So. 3d 503 (Fla. 2011). There, this Court held that
an attorney’s abuse of the subpoena power to conduct a personal
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investigation demonstrated the utmost disrespect for the courts and
warranted a ninety-one-day rehabilitative suspension. Id. at 510-
11. Another case cited by the referee was Florida Bar v. Nicnick,
963 So. 2d 219 (Fla. 2007), which I, unlike the majority, see
majority op. at 11, agree supports the imposition of a
nonrehabilitative suspension. The attorney in Nicnick not only
failed to disclose a settlement agreement to opposing counsel but
also had a prior ten-day suspension. 963 So. 2d at 222.
In contrast to the facts in Berthiaume and Nicnick that
supported imposing a rehabilitative suspension, in James’s case,
the referee found that James’s cooperation, full and free disclosure,
lack of a prior record, and character testimony from two witnesses
were mitigating factors sufficient to justify a nonrehabilitative
sanction. The referee’s recommendation was largely based on
credibility determinations and an assessment of James’s demeanor
that the referee was in the best position to make, and the referee’s
recommendation is consistent with our precedent.
Accordingly, I respectfully dissent from that portion of the
opinion that imposes a ninety-one-day rehabilitative suspension.
GROSSHANS, J., concurs.
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Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff
Counsel, The Florida Bar, Tallahassee, Florida, and Daniel James
Quinn, Bar Counsel, The Florida Bar, Orlando, Florida; and M.
Hope Keating and Barry Richard of Greenberg Traurig, P.A.,
Tallahassee, Florida,
for Complainant
Barry Rigby of Law Offices of Barry Rigby, P.A., Winter Park,
Florida,
for Respondent
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