Florida Supreme Court rejects referee’s recommendation of public reprimand and suspends lawyer for 10 days for failing to appear at hearing
Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court disciplinary opinion which rejected a referee’s recommendation of a public reprimand and suspended a lawyer for 10 days for failing to appear at a hearing. The disciplinary opinion is The Florida Bar v. Daniel Mark Cohen, No. SC12-2724 (February 12, 2015) and the disciplinary opinion is online here: http://www.floridasupremecourt.org/decisions/2015/sc12-2724.pdf
According to the opinion, the lawyer was retained to represent a client at a resentencing hearing in the client’s resentencing in a criminal case. On March 15, 2012, a Notice of Hearing was mailed to the lawyer stating that the resentencing hearing was scheduled for March 28, 2012. The lawyer received the Notice on March 19, 2012. The lawyer filed a “Motion to Continue Resentencing Hearing and Notice of Unavailability” on March 19, 2012 which stated that the notice provided for the resentencing hearing was not reasonable and that he did not have adequate time to prepare. The motion also stated that the lawyer was unavailable on March 28, 2012 since he had previously been retained to prepare a petition for writ of certiorari on behalf of another client. The motion did not state whether the prosecutor had agreed to the continuance. A copy of the motion was submitted directly to the presiding judge and the motion was not scheduled for a hearing.
The hearing was not continued and, on, the day the hearing was scheduled, the judge traveled from the county where he was then assigned to the county where the hearing was to take place. The judge had also reserved a courtroom and scheduled court staff in order to conduct the hearing. The prosecutor, the client, and the client’s former appellate attorney appeared for the hearing; however, the lawyer did not appear and the judge rescheduled the hearing for a later date.
The presiding judge in the criminal case testified at the Bar hearing that if the lawyer had appeared at the hearing and requested a continuance, he would likely have granted it and the prosecutor also testified that she would have had no objection to the request for a continuance. The referee found that the lawyer had substantial experience in the practice of law and specifically in the practice of criminal law, and the he should have known that the motion to continue would not automatically be granted. Further, the resentencing hearing was properly noticed and had not been continued; therefore, the lawyer was required to appear. The presiding judge also stated that the lawyer made no personal effort to contact the presiding judge to explain his absence after the hearing date and the judge then reported the matter to The Florida Bar.
The referee recommended that the lawyer be found guilty of violating Florida Bar Rules: 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); and 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 also found five mitigating factors: no prior discipline; personal or emotional problems; cooperative attitude during the disciplinary proceeding; good character and reputation; and remorse. The referee found two aggravating factors: substantial experience in the practice of law and refusal to acknowledge the wrongful nature of his misconduct. The referee also found that the referee’s conduct caused harm to the legal system: “While minimal direct prejudice, harm or injury resulted to [the client], the Respondent’s actions ultimately required [the client’s]resentencing hearing to have to be postponed. The delay to the court system was proven and evident. Continuing court hearings and having litigants come to court without being able to resolve the issues result in undue hardship to the administration of justice. This also results in additional expense and unnecessary use of work hours and administrative functions, such as the transportation of inmates (in this case [the client] was an inmate and had to be transported for the hearing). Thus, the Respondent’s ethical misconduct is harmful to the legal system and cannot be tolerated by an officer of the court.”
As to discipline, the referee recommended that the lawyer receive a public reprimand before The Florida Bar Board of Governors, that he obtain an evaluation by Florida Lawyer’s Assistance, Inc. (FLA) and abide by all of FLA’s recommendations, including a contract if necessary, schedule a review by the Law Office Management Assistance Service (LOMAS), and fully comply with its recommendations, and pay the Bar’s costs in the amount of $2,830.28. The lawyer filed a Notice of Intent to Review the recommendation. The Court subsequently issued an order directing the lawyer to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction imposed and the lawyer filed a response.
The disciplinary opinion approved the conditions recommended by the referee but rejected the public reprimand and imposed a 10 day suspension. “Although Cohen’s misconduct was relatively minor, and did not cause his client any actual harm, it was nonetheless harmful to the administration of justice and we conclude that his actions warrant harsher discipline than a public reprimand. See Fla. Stds. Imposing Law. Sancs. 6.22 (“Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.”). Cohen’s failure to attend the resentencing hearing was knowing and intentional. Moreover, the referee found that Cohen did not have a conflicting court date; rather, he was working on a filing for another client. Ultimately, Cohen simply chose not to attend a hearing that he knew was scheduled in his client’s case and had not been continued. We agree with the referee’s conclusion that Cohen’s actions were harmful to the legal system and that such conduct cannot be tolerated by an officer of the Court. Thus, we conclude a ten-day suspension is appropriate.”
Bottom line: This is yet another example of the Florida Supreme Court increasing the disciplinary sanction recommended by the referee, in this case, from a public reprimand to a 10 day suspension, because the lawyer’s “actions were harmful to the legal system and such conduct cannot be tolerated by an officer of the court.”
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.
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Joseph A. Corsmeier, Esquire
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