Florida Attorney Suspended For Race Bias Claims and Use Of Misdirected Fax
The Florida Supreme Court has ordered a suspension of two years of an attorney previously sanctioned based on findings that he made unfounded claims of racial bias in litigation
The referee in this disciplinary proceeding found that Kelsay Dayon Patterson committed multiple serious violations of the Rules Regulating the Florida Bar (Bar Rules). Among other things, Patterson without foundation accused judges and opposing counsel and parties of racial bias. But the referee recommended only a ninety-day suspension, largely because he believed that Patterson’s misconduct had already been addressed in a prior disciplinary proceeding. The Florida Bar argues that the referee’s premise is incorrect and that Patterson’s undisputed misconduct in this case warrants a two-year suspension. We agree.
He had been suspended for a year in 2018
Florida Bar v. Patterson, 257 So. 3d 56 (Fla. 2018), involved Patterson’s representation of Johanna Faddis in a lawsuit alleging an invasion of privacy by the City of Homestead and related defendants. In one of several appellate decisions in the Faddis litigation, the Third District described Patterson and Faddis as having committed a “fraud on the court” by filing the lawsuit.
…He likens “the story” of the case he filed on behalf of Faddis to “the story of Fidel Castro’s suffocating grip of Cuba, the Holocaust, Jim Crow laws, and Hillary Clinton.” According to him, the trial court sanction—and probably, now this one as well—are part of some political scheme to silence him and his client.
The present and prior cases
The temporal relationship between this case and Patterson’s earlier disciplinary proceeding is a bit complicated. Our decision in that proceeding, issued on October 19, 2018, addressed misconduct that occurred between 2012 and 2015 (that is, during Patterson’s litigation of the Faddis case). By contrast, this case involves Patterson’s misconduct in an entirely separate case that was litigated between 2011 and 2018. The Bar filed the complaint in this case in December 2019—more than a year after our decision in Patterson’s first disciplinary proceeding.
This matter was referred to the Bar by a federal judge and led to bar charges.
The court recounts the history of the federal case
The referee ultimately concluded that Patterson did not have an objectively reasonable basis for these repeated allegations accusing opposing counsel and the courts of racial bias and partiality.
A rare “misdirected fax” violation
During discovery, a defendant police officer mistakenly faxed his draft response to interrogatories to Patterson instead of to his own lawyer. The fax cover sheet clearly indicated that the fax was intended for the officer’s counsel. Patterson read the responses anyway, and he kept the fax and made no effort to notify defense counsel of the error. When defense counsel learned of the disclosure a few days later, he informed Patterson that the fax was sent by mistake and asked that it be returned, noting that Bar Rule 4-4.4 (Respect for Rights of Third Persons) requires such action. Patterson refused and used the information contained in the inadvertent fax to support a motion and as the basis for filing an amended complaint. Only after the court granted defense counsel’s motion to compel Patterson to return the fax and to strike its contents from the record did Patterson destroy the fax. In his report, the referee deemed this misconduct “egregious.”
Notably, the pertinent rule does not prohibit use of the document
(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent must promptly notify the sender.
And the comment
Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document or electronically stored information has been waived.
Of course, one must obey a court order concerning such use.
The referee’s conflation error
Compared to the referee, we have a fundamentally different view of the relationship between this case and Patterson’s prior disciplinary proceeding. Patterson has not already been punished for the behavior at issue here. Patterson’s prior disciplinary proceeding related entirely to his conduct in the Faddis case. By contrast, this case is about Patterson’s misconduct in the Bussey Morice case.
The court found a number of aggravating factors not found by the referee.
Sanction
Having explained what we believe to be the correct factual backdrop, we have no trouble concluding that Patterson’s misconduct warrants a two-year suspension. It is undisputed that Patterson engaged in three distinct types of misconduct, all serious—making unfounded allegations against courts, counsel, and parties; misusing the inadvertent fax; and repeatedly violating procedural rules and thereby failing to expedite litigation. Patterson’s repeated, unfounded allegations of racial bias were particularly egregious. And they were especially damaging—not just to the individuals whose character he unjustly impugned, but broadly to the public’s confidence in our judicial system. Patterson’s behavior was diametrically opposed to the civility and professionalism that our Bar Rules and the Oath of Admission demand.
(Mike Frisch)