Ten Day Sit Down For Failure To Appear

An attorney who had failed to appear for his client’s resentencing was suspended for 10 days by the Florida Supreme Court.

The court rejected the referee’s proposal of a public reprimand.

Cohen was hired to represent a client at a resentencing hearing in the client’s criminal case pursuant to Graham v. Florida, 560 U.S. 48 (2010). On March 15, 2012, Cohen was mailed a Notice of Hearing, indicating that the resentencing hearing was scheduled for March 28, 2012. The referee found that Cohen received the Notice on March 19. On the same day, Cohen filed a “Motion to Continue Resentencing Hearing and Notice of Unavailability,” asserting that the notice provided for the Graham resentencing hearing was not reasonable and that he did not have adequate time to prepare; Cohen also stated in the motion that he was unavailable on March 28 because he was previously retained to prepare a petition for writ of certiorari on behalf of another client. Significantly, Cohen did not indicate in the motion whether the State agreed to the continuance, he did not submit a copy directly to the presiding judge, and he did not set the motion for a hearing.

Because the client’s resentencing hearing had not been continued, on the day set for the hearing, March 28, 2012, the presiding judge traveled from the county where he was then assigned to the county where the hearing was to take place; the judge had reserved a courtroom and scheduled court staff in order to conduct the hearing. The assistant state attorney, the client, and the client’s former appellate attorney were also present. However, Cohen did not appear. As a result, the presiding judge was forced to reschedule the hearing for a later date. The judge testified before the referee, without hesitation, that had Cohen appeared at the hearing and requested a continuance, the judge likely would have granted his request. The assistant state attorney also testified that she had no objection to Cohen’s request for a continuance. However, Cohen simply chose not to attend. The referee found that Cohen has substantial experience in the practice of law, and particularly in the practice of criminal law, and he should have known that his motion to continue was not self-executing. The resentencing hearing was properly noticed and it had not been continued; thus, Cohen was required to appear.

Following the hearing, the referee noted that Cohen made no personal effort to contact the presiding judge to explain his absence.

The judge reported the lapse to the State Bar.

The court here concluded that the intentional nature of the misconducted warranted a short suspension. (Mike Frisch)