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The Florida Bar v. Schwartz

Supreme Court of Florida

November 7, 2019

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

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

         Original Proceeding - The Florida Bar

          Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, Florida, Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, and Thomas Allen Kroeger, Bar Counsel, The Florida Bar, Miami, Florida, for Complainant

          Benedict P. Kuehne and Michael T. Davis of Kuehne Davis Law, P.A., Miami, Florida, for Respondent

          PER CURIAM.

         We have for review a referee's report recommending that Respondent, Jonathan Stephen Schwartz, be found not guilty of professional misconduct. We have jurisdiction. See art. V, § 15, Fla. Const. We disapprove the referee's findings of fact and recommendation that Schwartz did not violate any Bar rules in his use of two defense exhibits during a pretrial deposition, and we remand to a newly appointed referee for further proceedings consistent with this opinion. We also disapprove the referee's order that the parties bear their own costs.

         BACKGROUND

         Schwartz is primarily a criminal defense attorney who was admitted to The Florida Bar (Bar) in 1986. He became the subject of these Bar proceedings based upon his use of two defense exhibits during a pretrial deposition conducted on February 13, 2015, while representing the defendant in the case of State v. Virgil Woodson, Circuit Case No. 13-2013-CF-012946-0001-XX (Miami-Dade County, Florida). The exhibits at issue included two photocopied versions of black and white police photo lineups in which the victim had originally signed her name and identified the defendant by circling both the defendant's photograph and the designation below it of subject number five. The exhibits also included the signature of the police officer who conducted the photo lineup. The disciplinary issue here centers on the fact that Schwartz altered the photo lineup by replacing his client's image in one exhibit with the image of an alternate suspect whom witnesses other than the victim had identified as the perpetrator and by changing the client's image in the other exhibit by imposing the alternate subject's hairstyle on the client's image. Although the images in the exhibits were altered in this manner, they nonetheless retained the circle around subject number five and the signatures of the victim and police officer below the photographs. The Bar, in its complaint filed on July 27, 2017, alleged that Schwartz violated Rules Regulating the Florida Bar (Bar Rules) 3-4.3 (Misconduct and Minor Misconduct) and 4-8.4(c) ("A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.").

         The referee, in her report dated May 21, 2018, having heard testimony from the Bar complainant (former assistant state attorney Cristina Cabrera, who was lead prosecutor in the Woodson case), the court reporter at the deposition, Schwartz's co-counsel in representing Woodson (Judy McGuire), attorney Barry Wax (presented as an expert defense lawyer), and Schwartz, found that "[Schwartz] made a messy (but clearly not deceitful) effort to comply with State v. [Mc]Williams[, 817 So.2d 1036 (Fla. 3d DCA 2002)], with only black and white copies of the state's photographic lineups that the state had given him in discovery." Report of Referee, at 7.

         Turning to the alleged rule violations, the referee wrote that "a violation of Rule 4-8.4(c) requires proof of 'a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.'" Id. at 22. The referee found that

the Bar's proof did not establish that [Schwartz] acted with any purpose or intent to deceive during the course of his handling the [victim's] deposition. The defense-created line-ups are not, in and of themselves, misleading, fraudulent, deceitful, or misrepresentations, and were not contrary to honesty or justice. Nor was the manner of use of the defense-created line-ups capable of misleading the witnesses.

Id. at 22-23. The referee found it significant that Schwartz "had only black and white photocopies of the state's evidence to work with," and that his substituting his client's face with that of an alternate suspect he had "previously disclosed to the state was consistent with honesty and justice." Id. at 23. The referee also relied upon the fact that the Bar admitted that there was not a single Bar disciplinary case on point.

         By separate order, the referee denied Schwartz's Motion to Assess Costs and instead ordered the ...


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