Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida increasing the referee’s recommended discipline of former criminal prosecutor who had a personal relationship with circuit judge and extensive contact while that judge was presiding over his trial from a 1 year to a 2 year suspension. The opinion is The Florida Bar v. Scheinberg, SC11-1185 (June 20, 2013) and is here: https://www.floridasupremecourt.org/decisions/2013/sc11-1865.pdf.
According to the opinion, “(i)n 2007, Scheinberg was the lead prosecutor in State of Florida v. Omar Loureiro, a first-degree capital murder case in which the State was seeking the death penalty. Former Judge Ana Gardiner was the presiding judge in the case. On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder. Subsequently, on May 20, 2007, the jury recommended the death penalty; on August 24, 2007, former Judge Gardiner imposed the death penalty. During the period of time from March 23, 2007, four days before the jury returned its guilty verdict in Loureiro, to August 24, 2007, the day that former Judge Gardiner imposed the death penalty, Scheinberg and Gardiner engaged in substantial personal communications by phone or text message. Specifically, Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages during that period. Scheinberg did not disclose these communications to the attorney representing Loureiro.
“The referee found: ‘The undisclosed conduct between former Judge Ana Gardiner and the respondent, contributed to the decision by the State of Florida, through its Broward State Attorney to agree to a new trial in State of Florida v. Omar Loureiro to dispel any public misconception that there was any denial of due process.’ the referee recommends that Scheinberg be found guilty of violating Bar 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). The referee observed: ‘The undisclosed communications between the judge and Respondent prejudiced the system. The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice.’”
“The referee found three aggravating factors in this case: a pattern of misconduct; multiple offenses; and substantial experience in the practice of law. The referee also found four mitigating factors: the absence of a prior disciplinary record; full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings; good character or reputation; and remorse. As to the sanction, the referee recommends that Scheinberg be suspended from the practice of law for one year. The referee also awarded costs to The Florida Bar, in the amount of $3,881.96.”
“As we noted above, there is little case law from this Court that addresses the situation presented in this case, where an attorney engages in extensive personal communications with a presiding judge in a capital case, without disclosing those communications to the opposing party. The Report of Referee cites Florida Bar v. Mason, 334 So. 2d 1 (Fla. 1976), in which the Court suspended an attorney for one year for egregious ex parte communications with Justices of the Florida Supreme Court concerning a pending case. In Mason, the Court noted that the ex parte communications at issue were ‘fundamentally wrong,’ and that ‘there can be no temporizing with an offense the commission of which serves to destruct the judicial process.’”
“Here, there is no dispute that the communications between Scheinberg and former Judge Gardiner did not concern the Loureiro case. Nonetheless, we do find guidance in Mason, in that Scheinberg’s conduct similarly created an appearance of impropriety and caused harm to the judicial process. Scheinberg and Gardiner engaged in a substantial number of personal communications that were not disclosed to the opposing party and his attorney. Moreover, this conduct occurred in the context of a capital first-degree murder case where the judge had to rule on motions made by and against the respondent and where the judge could, and did, impose the ultimate sentence of death. The communications between Scheinberg and former Judge Gardiner led to an investigation and, ultimately, caused the Loureiro case to be retried, a process which consumed court resources, as well as the resources of opposing counsel. Given the seriousness of Scheinberg’s misconduct and the harm it caused to the administration of justice in the Loureiro case, together with the aggravating and mitigating factors found by the referee, we hold that a two-year suspension is the appropriate discipline. Thus, we disapprove the referee’s recommended sanction, and instead suspend Scheinberg for two years.”
Bottom line: This is a somewhat extreme example of extensive improper personal and certainly ex parte contact between a presiding judge and an attorney litigating a case, which was amplified by the fact that it was a criminal death penalty case. It is also another example of the Florida Supreme Court not hesitating to increase the discipline recommended by the referee assigned to the Bar disciplinary case, which I have reviewed and discussed in previous Ethics Alerts and seminars. The opinion is also highly is unusual since the Supreme Court significantly increased the discipline after the lawyer (not the Bar) filed a petition to review the recommended discipline.
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.
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
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“There’s little case law . . . ” because prosecutors are so rarely sanctioned or disciplined. This case is a rare bird, indeed! It will be interesting to see what befalls the jurist since as you well know, there’s an entirely different standard on ex-parte contacts involving judges. See, for instance, a case I posted in 2010 involving a probate judge’s ex-parte contacts and the difficulties of “piercing the steel wall of judicial immunity.” https://lawmrh.wordpress.com/2010/06/05/judicial-immunity-for-a-probate-judges-ex-parte-contacts/
But to elaborate further on how exceptionally infrequent this prosecutor disciplinary case is, also see, for example, https://www.propublica.org/article/who-polices-prosecutors-who-abuse-their-authority-usually-nobody
and I could go on and on and on . . . .