Before He Was A Judge
The Florida Supreme Court has suspended a judge for misconduct as an attorney
This matter is before the Court for review of the determination of the Florida Judicial Qualifications Commission (JQC) that Circuit Judge Andrew J. Decker, III, has violated certain Florida Bar Rules of Professional Conduct before his judicial campaign and the Code of Judicial Conduct during his judicial campaign. We have jurisdiction. See art. V, § 12, Fla. Const. We conclude that, with limited exceptions, the JQC Hearing Panel’s findings are supported by clear and convincing evidence. For the violations in this case, the Hearing Panel recommended a ninety-day suspension, public reprimand, and payment of costs of the proceedings. Article V, section 12(c)(1) of the Florida Constitution provides that this Court “may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission.” We modify in part the sanction recommended by the Hearing Panel and impose the following discipline on Judge Decker: a six-month suspension, public reprimand, and payment of costs of the proceedings.
The misconduct
Judge Decker’s misconduct unquestionably warrants the imposition of a serious sanction. In addition to campaign violations, then-attorney Decker (1) violated the Rules of Professional Conduct in failing to advise opposing counsel in the Wells Fargo litigation that he was currently representing the presiding judge in other litigation; (2) violated numerous Rules of Professional Conduct concerning conflict of interest in common representation, including failing to counsel and advise the three clients of the risks and advantages of common representation, failing to withdraw when conflicts were apparent, engaging in representation of one client to the detriment of other current or former clients, reminding opposing counsel in the TD Bank case that even though Judge Bryan was in bankruptcy court, TD Bank could still pursue its claims against Dukes and Woodington; and (3) violated the Rules of Professional Conduct requiring candor to the tribunal by incorrectly stating the status of his representation of Dukes, Woodington, and BWD trust on filings made with the bankruptcy court in Judge Bryan’s case.
When it became apparent numerous times that there was conflict among then-attorney Decker’s clients, then-attorney Decker should have immediately withdrawn from all representation. His inability to understand the serious conflict that existed, and to recognize that conflict when it became apparent on more than one occasion, demonstrates a critical lack of care concerning his clients.
In addition, there were other serious violations of the Rules of Professional Conduct, including then-attorney Decker’s failure to advise opposing counsel in the Wells Fargo case that then-attorney Decker had undertaken representation of Judge Bryan, the presiding judge in the Wells Fargo case. All the violations established by the evidence in this case demonstrate a pattern of poor judgment, and lack of concern for jointly represented clients and for other counsel and their clients. Judge Decker violated numerous Rules of Professional Conduct and Canons of Judicial Conduct, as well as a state statute, and has “exhibited a pattern of behavior that evidences a lack of ethical judgment, along with a lack of understanding and concomitant contrition about the harm caused to his clients and to the public’s trust in the legal system,” as the Hearing Panel found. The Hearing Panel was also concerned, as are we, by the fact that Judge Decker was reprimanded by The Florida Bar in the past. This prior discipline, along with the numerous violations proven in this case, demonstrate that Judge Decker “evinces a lack of ability to identify situations that lead to the appearance of impropriety.”
However, no evidence suggests that any of Judge Decker’s misconduct in the practice of law caused significant harm to a client or another party. Significant harm is, of course, not necessary to establish an ethical violation. But the absence of such harm is a relevant consideration in determining the appropriate sanction to be imposed. Similarly, simple errors should be treated less severely than willful misrepresentations. So Judge Decker’s culpability for bankruptcy court filings containing misstatements is certainly diminished by the fact that the misstatements were inadvertent.
A concurring opinion would find that a charge of unauthorized communication that the court majority rejected had been proven. (Mike Frisch)