Cumulative Misconduct Draws Disbarment
Cumulative findings of overzealous misconduct drew disbarment of an attorney by the Florida Supreme Court
we approve the referees’ findings of fact and recommendations as to guilt. But we disapprove in part the findings in aggravation and mitigation, and we disapprove each referee’s suspension recommendation. Over time, Schwartz has engaged in increasingly inappropriate conduct under the guise of zealous representation. Most notably, a three-year suspension was recently imposed on Schwartz for deceptive conduct in connection with a judicial proceeding. See Fla. Bar v. Schwartz (Schwartz I), 284 So. 3d 393 (Fla. 2019); Fla. Bar v. Schwartz (Schwartz II), 334 So. 3d 298, 299 (Fla. 2022). Schwartz’s cumulative transgressions are egregious and will not be tolerated. Based on Schwartz’s extensive disciplinary history and escalating pattern of misconduct, we disbar him for his misconduct in these two cases.
A count
On October 16, 2017, Schwartz sent an unsolicited text message to the Bar complainant’s cell phone. The message included a photo of the complainant’s police report and the text “It’s Jonathan Schwartz. I am a lawyer for battery cases. If you would like to consult regarding the case . . . please call or text.” The referee found that the text message violated the advertising rules as follows: (1) it did not include “Advertisement” as the first word in the text, as required by Rule Regulating The Florida Bar (Bar Rule) 4-7.18(b)(2)(B); (2) it did not include any of the required information regarding Schwartz’s experience and qualifications, in violation of Bar Rule 4-7.18(b)(2)(C); (3) it did not include the sentence “If you have already obtained a lawyer, please disregard this text,” as required at the time by Bar Rule 4-7.18(b)(2)(E)1; (4) it did not state how Schwartz obtained the complainant’s information, in violation of now designated Bar Rule 4-7.18(b)(2)(G)2; and (5) it had not been filed for review by the Bar as required by Bar Rule 4-7.19(a). The referee rejected Schwartz’s argument that the advertising rules, specifically citing Bar Rule 4-7.11 (Application of Rules), do not apply to text messages because the rules do not expressly identify them, and that he was entitled to protection under the “Safe Harbor” provisions of Bar Rule 4-7.16 (Presumptively Valid Content).
Another count involved contact with a criminal client’s co-defendant
the referee recommended finding that Schwartz violated Bar Rule 4-4.2(a) because he was aware that Johnson was represented by the Public Defender’s Office when he and Maloy met at Schwartz’s office, and while Johnson intended on firing his lawyer, Johnson had not done so yet. Schwartz knew this based on Johnson’s statement about being unhappy with the Public Defender’s Office, and it was evidenced by the fact that Schwartz recommended that Johnson call his lawyer. The referee further found that the preparation of the Byrd Affidavit “in and of itself is the subject of the representation.
Priors included a suspension
There, Schwartz made numerous unsubstantiated complaints against his former law partners and made an additional misrepresentation before a judge stating that the former partners were under criminal investigation despite being informed by police that there was no such investigation. And in case number SC1960-90204, Schwartz received a public reprimand on April 10, 1997, for failure to comply with numerous court orders. Lastly, Schwartz received two admonishments for minor misconduct: one, by service of a Grievance Committee Report of Minor Misconduct dated March 29, 1995, in The Florida Bar File No. 1994-71,026(11B), as well as one in 1996 for an advertisement that had not been filed with the advertising section of the Bar and did not contain the word“advertisement” in red ink.
Sanction
we disapprove the referee’s recommended discipline in both cases. Instead, we conclude that the totality of Schwartz’s conduct in the two cases taken together, and when considering Schwartz’s disciplinary history, warrants disbarment.
(Mike Frisch)