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Florida Bar referee recommends 1-year suspension for former state prosecutor who sent hundreds of texts and made calls to the presiding judge during murder trial

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent media reports that a Florida Bar referee has recommended that a former Florida criminal prosecutor who sent hundreds of texts and made calls to a presiding judge during a capital murder trial should be found guilty and suspended from practice for one year.

According to the media reports, Fifteenth Circuit Court Judge Sheree Davis Cunningham, who was appointed by the Florida Supreme Court as a referee, found that former homicide prosecutor, Howard Scheinberg, sent the texts and made the telephone calls to the judge during the 2007 murder trial, that the communications should have been disclosed to defense counsel for the defendant, and that the lawyer’s failure to disclose them was prejudicial to the administration of justice.

The lawyer is now in private practice in Plantation after serving for two decades as a state prosecutor.  He resigned after the communications between him and former Seventeenth Circuit Court (Broward County) Judge, Ana Gardiner, were revealed.  According to the Sun Sentinel, both the lawyer and the former judge have maintained that the approximately 1,400 texts and calls that they made to each other during the trial had nothing to do with the case.

The defendant was convicted and sentenced to death after the initial trial; however, after the communications were revealed, he was granted a new trial.  He was convicted in the subsequent trial and sentenced to life in prison.

The report of referee is not final and will be sent to the Florida Supreme Court for review along with the record.  Both the lawyer and The Florida Bar have the right to file a Petition for Review of the referee’s findings and recommendations with the Court.

Judge Gardiner resigned from the bench after the communications were revealed and is now in private practice in Broward County.  She avoided a Judicial Qualifications Commission (JQC) ethics complaint by resigning as a judge; however, she is currently facing a Bar complaint alleging that the communications violated Florida Bar Rules and also that she misled the JQC by claiming that her communications with the prosecutor were less extensive than they actually were.  Also according to the media reports, a hearing on that matter is scheduled for May 2012.

Bottom line:  If true, these allegations are troubling on multiple levels and it also illustrates that a judge will not necessarily be able to escape charges of Bar disciplinary rule violations by resigning from the bench.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.





My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at [email protected].  You can find my law firm on the web at In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]


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