Photo Not Finish

The Florida Supreme Court rejected a proposed dismissal and remanded a bar case for further proceedings

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.

The underlying criminal case

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 alleged violation

Bar Rule 4-8.4(c): Bar Rule 4-8.4(c) provides in pertinent part that “[a] lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” To sustain a violation of that rule, “the Bar must prove intent.” Fla. Bar v. Brown, 905 So. 2d 76, 81 (Fla. 2005). The element of intent can be satisfied, however, “merely by showing that the conduct was deliberate or knowing.” Id. Therefore, the motive underlying the lawyer’s conduct is not determinative; instead the issue is whether he or she purposefully acted.

As to motive

notwithstanding the referee’s credibility findings and her finding that Schwartz did not subjectively intend to deceive the witness, this finding does not address the undisputed fact that Schwartz knowingly and deliberately created the defense exhibits by altering photocopies of the police lineups and showing them to the victim at the deposition. Those exhibits included the victim’s circle of subject number five and the victim’s and detective’s signatures, along with a photograph of the so-called alternate subject replacing the
defendant’s image, and a photograph altering the defendant’s image by imposing the alternate subject’s hairstyle.

Violation

While the referee repeatedly stated that Schwartz’s use of the defense created exhibits was either not contrary to, or was consistent with, honesty and justice, the exhibits themselves establish the opposite. In light of the discussion pertaining to Bar Rule 4-8.4(c), we disapprove the referee’s recommendation that Schwartz did not violate Bar Rule 3-4.3.

(Mike Frisch)