The Fla. Bar v. Schwartz

1

THE FLORIDA BAR, Complainant, v. JONATHAN STEPHEN SCHWARTZ, Respondent.

THE FLORIDA BAR, Complainant, v. JONATHAN STEPHEN SCHWARTZ, Respondent.

Nos. SC2019-0983, SC2021-0484

Supreme Court of Florida

January 18, 2024

Original Proceeding - The Florida Bar

Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, Jennifer R. Falcone, Bar Counsel The Florida Bar, Miami, Florida, and Rita Florez, Bar Counsel, The Florida Bar, Miami, Florida; and Chris Altenbernd of Banker, Lopez Gassler P.A., Tampa, Florida, for Complainant

Barry M. Wax of Law Offices of Barry M. Wax, Miami, Florida Benedict P. Kuehne of Kuehne Davis Law, P.A., Miami, Florida; and Richard Baron of Baron, Breslin & Sarmiento, Miami, Florida, for Respondent

PER CURIAM

We have for review two referee's reports, by different referees recommending that Respondent, Jonathan Stephen Schwartz, be found guilty of professional misconduct and suspended from the practice of law. We have jurisdiction. See art. V, § 15, Fla. Const.

As discussed below, we approve the referees' findings of fact and recommendations as to guilt. But we disapprove in part the findings in aggravation and mitigation, and we disapprove each referee's suspension recommendation. Over time, Schwartz has engaged in increasingly inappropriate conduct under the guise of zealous representation. Most notably, a three-year suspension was recently imposed on Schwartz for deceptive conduct in connection with a judicial proceeding. See Fla. Bar v. Schwartz (Schwartz I), 284 So.3d 393 (Fla. 2019); Fla. Bar v. Schwartz (Schwartz II), 334 So.3d 298, 299 (Fla. 2022). Schwartz's cumulative transgressions are egregious and will not be tolerated. Based on Schwartz's extensive disciplinary history and escalating pattern of misconduct, we disbar him for his misconduct in these two cases.

I. BACKGROUND

Case No. SC2019-0983

On October 16, 2017, Schwartz sent an unsolicited text message to the Bar complainant's cell phone. The message included a photo of the complainant's police report and the text "It's Jonathan Schwartz. I am a lawyer for battery cases. If you would like to consult regarding the case . . . please call or text." The referee found that the text message violated the advertising rules as follows: (1) it did not include "Advertisement" as the first word in the text, as required by Rule Regulating The Florida Bar (Bar Rule) 4-7.18(b)(2)(B); (2) it did not include any of the required information regarding Schwartz's experience and qualifications, in violation of Bar Rule 4-7.18(b)(2)(C); (3) it did not include the sentence "If you have already obtained a lawyer, please disregard this text," as required at the time by Bar Rule 4-7.18(b)(2)(E)^[1]; (4) it did not state how Schwartz obtained the complainant's information, in violation of now designated Bar Rule 4-7.18(b)(2)(G)^[2]; and (5) it had not been filed for review by the Bar as required by Bar Rule 4-7.19(a). The referee rejected Schwartz's argument that the advertising rules, specifically citing Bar Rule 4-7.11 (Application of Rules), do not apply to text messages because the rules do not expressly identify them, and that he was entitled to protection under the "Safe Harbor" provisions of Bar Rule 4-7.16 (Presumptively Valid Content).^[3]

Turning to the issue of sanctions, the referee considered Standards for Imposing Lawyer Sanctions (Standards) 8.1(c)(2) (Violation of Court Order or Engaging in Subsequent Same or Similar Misconduct; Public Reprimand) and 9.2(c)(2) (Communications about a Lawyer's Services; Public Reprimand). In addition, the referee found three aggravating factors: (1) prior disciplinary offenses, (2) pattern of misconduct, and (3) substantial experience in the practice of law; and one mitigating factor, character or reputation. The referee also considered as mitigating the following factors, some of which are specific to advertising cases under Standard 9.6 (Mitigation and Aggravation): (1) Schwartz believed that text messages were not subject to the advertising rules and that the text message at issue fell under the Safe Harbor provisions of Bar Rule 4-7.16; (2) Schwartz ceased sending any other text messages seeking employment; (3) Schwartz did not send any other messages to the complainant; (4) Schwartz explained his position with respect to text messages to the complainant's lawyer upon receipt of his email; and (5) Schwartz "is a hard-working attorney, works long hours, and is dedicated in representing his clients." The referee recommended that Schwartz receive a ten-day suspension to run concurrently with the suspension anticipated to be entered in case number SC2017-1391, where the same referee had recommended finding Schwartz guilty of violating Bar Rules in relation to his alterations to photocopies of a police lineup.^[4] Neither party sought review of the referee's report in case number SC2019-0983.

Case No. SC2021-0484

Schwartz who had filed a notice of appearance on behalf of the defendant in State v. Demarris Maloy, Case No. 132016CF021853A000XX, in Miami-Dade County Circuit Court, met with both client Maloy and Maloy's co-defendant, Gabriel Antwan Johnson, on or about June 12, 2018. Johnson was charged in Case No. 132016CF021853B000XX and was represented by the Miami-Dade County Public Defender's Office at the time. While Johnson appeared at Schwartz's office with Maloy, neither Johnson's lawyer, Assistant Public Defender Kristine Del Sol, nor any other lawyer from the Public Defender's Office, was present. Schwartz did not call Del Sol or make any effort to contact her or her office with respect to Johnson's appearance at his office despite knowing that he was represented.

At that time, Johnson told Schwartz that he wanted to testify on behalf of Schwartz's client. Schwartz prepared a Byrd^[5] Affidavit, executed by Johnson and notarized by Schwartz's associate, which averred that Johnson wanted to testify on behalf of Maloy, acknowledged his Fifth Amendment right against self-incrimination, and sought to have his case adjudicated before that of his co-defendant to extinguish his right to remain silent.

Schwartz filed the Byrd Affidavit with the trial court in his client's case on the same day Johnson came to Schwartz's office. It was never filed in Johnson's case. Schwartz also filed a motion to sever in Maloy's case on or about July 9, 2018, attaching the Byrd Affidavit as an exhibit. A hearing was held on Schwartz's motion, in which Johnson's public defender advised the trial court that the affidavit was obtained without her knowledge, that she was unaware that her client had visited Schwartz's office, and that she was only aware of the affidavit due to notification by the assistant state attorney. Under oath, Johnson acknowledged that he was represented by counsel at the time the affidavit was executed and that his lawyer was not present. Schwartz, who proffered that Johnson would testify that the drugs at issue in the criminal case belonged to him and not to Maloy, argued that it was irrelevant for purposes of his motion to sever whether he acquired that information from Johnson. Schwartz further proffered that he had recommended that Johnson call his attorney, though no such call was made.

Following referral to a referee and the portion of the final hearing held on the issue of guilt, the referee recommended that Schwartz be found guilty of violating Bar Rules 4-4.2(a) (Communication with Person Represented by Counsel) and 4-8.4(d) (providing that a lawyer shall not "engage in conduct in connection with the practice of law that is prejudicial to the administration of justice").

Specifically, the referee recommended finding that Schwartz violated Bar Rule 4-4.2(a) because he was aware that Johnson was represented by the Public Defender's Office when he and Maloy met at Schwartz's office, and while Johnson intended on firing his lawyer, Johnson had not done so yet. Schwartz knew this based on Johnson's statement about being unhappy with the Public Defender's Office, and it was evidenced by the fact that Schwartz recommended that Johnson call his lawyer. The referee further found that the preparation of the Byrd Affidavit "in and of itself is the subject of the representation."

The referee also recommended finding that Schwartz violated Bar Rule 4-8.4(d) when he engaged in the impermissible communication with Johnson and had him swear out an affidavit without the benefit of his own lawyer's advice. Schwartz also violated the rule when he immediately filed the affidavit and sought to use it in court proceedings to sever his client's case from his co-defendant's, also without communicating with Johnson's lawyer.

After a separate hearing on the matter of sanctions and without the benefit of this Court's decision on discipline in case number SC2017-1391, the referee recommended a ninety-day suspension. The referee considered the following Standards, all limited to imposition of a suspension, prior to recommending discipline: Standards 4.3(b) (Failure to Avoid Conflicts of Interest), 6.1(b) (False Statements, Fraud, and Misrepresentation), 6.2(b) (Abuse of the Legal Process), 7.1(b) (Deceptive Conduct or Statements and Unreasonable or Improper Fees), and 8.1(b) (Violation of Court Order or Engaging in Subsequent Same or Similar Misconduct). The referee did not discuss the Standards cited or otherwise explain how a suspension was the presumptive sanction under the Standards.

In addition, the referee found three aggravating factors: (1) prior disciplinary offenses, (2) a pattern of misconduct, and (3) substantial experience in the practice of law. Regarding mitigating factors,...