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The Florida Bar v. Blackburn

Supreme Court of Florida

May 24, 2018

THE FLORIDA BAR, Complainant,
v.
ANTHONY WAYNE BLACKBURN, Respondent.

          Original Proceeding - The Florida Bar

          Joshua E. Doyle, Executive Director, Carlos Alberto Leon, Bar Counsel, Tallahassee, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant

          Dale Carson, Law Office of Dale Carson, Jacksonville, Florida, for Respondent

          PER CURIAM.

         We have for review a "Report of Referee Accepting Consent Judgment, " recommending that Respondent, Anthony Wayne Blackburn, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for a period of eighteen months. We have jurisdiction. See art. V, § 15, Fla. Const. As more fully explained below, after consideration of the referee's report, the guilty plea and consent judgment, the response to the Court's order to show cause why the referee's recommended discipline should not be disapproved and a more severe sanction, up to and including disbarment, be imposed, and the Bar's reply, we disapprove the proposed discipline and disbar Respondent.

         FACTS

         On August 10, 2017, The Florida Bar filed a complaint against Respondent, who was admitted to the Bar on September 24, 2005. The complaint was referred to a referee, and the referee accepted the "Conditional Guilty Plea for Consent Judgment" in a report filed with the Court on October 20, 2017, and in an amended report filed on November 1, 2017.[1]

         Based on the parties' consent judgment, the referee recommended that Respondent be found guilty of violating Bar Rules 3-4.4 (Misconduct), 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct), 4-8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects), and 4-8.4(i) (a lawyer shall not engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship). As provided by the consent judgment, the referee also recommended an eighteen-month suspension, that Respondent complete The Florida Bar's Ethics School as a condition precedent to reinstatement, that Respondent contact Florida Lawyers Assistance, Inc. (FLA, Inc.) to schedule an evaluation and to abide by all recommendations made by FLA, Inc., and that he be assessed costs in the amount of $1, 688.51.

         The facts underlying the disciplinary proceedings are as follows. On September 16, 2016, Respondent was arrested and charged with battery pursuant to section 784.041(1)(a), with solicitation of prostitution pursuant to section 796.07(2)(f), and with exposure of sexual organs pursuant to section 800.03, Florida Statutes (2016), in Duval County, Florida. According to the Arrest Warrant Affidavit, on September 3, 2016, Respondent visited two female clients that he was representing in criminal matters while they were incarcerated at the Pretrial Detention Facility. In adjacent rooms at the detention facility, Respondent and the women engaged in sexual activities initiated by Respondent. Respondent solicited the sexual conduct with one client by depositing money into her personal bank account and with the other client by promising free or discounted legal services designed to achieve a reduced jail sentence. On May 25, 2017, Respondent entered into a plea agreement and pled no contest to misdemeanor battery. Respondent's adjudication was withheld, and he was sentenced to one day in jail with credit for time served and unsupervised probation and ordered to pay costs. Respondent voluntarily sought treatment from FLA, Inc. On January 2, 2018, the Court issued an order directing Respondent to show cause why the referee's recommended sanction should not be disapproved and a more severe sanction, up to and including disbarment, be imposed.

         ANALYSIS

         In reviewing a referee's recommendation as to discipline, the Court's scope of review is broader than that afforded to the referee's findings of fact, because it is ultimately the Court's responsibility to determine the appropriate discipline. Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla. 1989). However, the Court will generally approve the referee's recommendation if it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999). Furthermore, the Court has moved toward imposing harsher sanctions, see Florida Bar v. Herman, 8 So.3d 1100, 1108 (Fla. 2009), and has stated that it "will strictly enforce the rule against lawyers engaging in sexual conduct with a client that exploits the lawyer-client relationship." Fla. Bar v. Bryant, 813 So.2d 38, 44 (Fla. 2002); see Fla. Bar v. Samaha, 557 So.2d 1349, 1350 (Fla. 1990) ("Even the slightest hint of sexual coercion or intimidation directed at a client must be avoided at all costs."). Finally, the approval or disapproval of the consent judgment is a matter for the Court's discretion. See R. Regulating Fla. Bar 3-7.9(c) ("Acceptance of any proposed consent judgment shall be conditioned on final approval by the Supreme Court of Florida . . . .").

          In determining the sanction to recommend, the referee considered the Florida Standards for Imposing Lawyer Sanctions that support imposition of a suspension, including 5.12 (suspension is appropriate when a lawyer knowingly engages in criminal conduct which is not included within Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice), and 7.2 (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). The referee found three aggravating factors, including Standards 9.22(a) (prior disciplinary offenses), [2] 9.22(d) (multiple offenses), and 9.22(h) (vulnerability of victim), and two mitigating factors: 9.32(c) (personal or emotional problems), and 9.32(1) (remorse). In addition, the referee relied upon Florida Bar v. Boone, 31 So.3d 178 (Fla. 2010) (table), [3] Florida Bar v. Bryant, 813 So.2d 38 (Fla. 2002), and Florida Bar v. Samaha, 557 So.2d 1349 (Fla. 1990).

         While the Court agrees that Standard 5.12 is applicable to the facts of this case, we conclude that Standard 7.1 (Disbarment is appropriate when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional), rather than Standard 7.2, also applies. We also find that the aggravating factors (prior disciplinary offenses, multiple offenses, and vulnerability of victim) are substantial.

         With regard to existing case law, we conclude that disbarment, rather than a suspension, is reasonably supported. First, the referee's reliance upon the three cases is misplaced, for the following reasons: Boone does not have precedential value because the case was uncontested and the opinion did not include any substance or facts; Bryant and Samaha were decided sixteen and twenty-eight years ago, respectively; and the published opinions are distinguishable from Respondent's conduct. For example, in Bryant, a one-year suspension was imposed where the attorney entered into a sex-for-fee arrangement with a client upon the client's suggestion, and the sexual relations did not occur while the client was imprisoned. In Samaha, a one-year suspension was imposed where the attorney, under the guise of preparing for a personal injury action, touched ...


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