Reciprocal Censure For Florida Misconduct

The New York Appellate Division for the Third Judicial Department imposed a reciprocal public censure for a sanction imposed in Florida

In January 2023, respondent was suspended from practice for a 90-day term by the Supreme Court of Florida upon respondent’s consent and her admission that, in the context of her representation of a criminal defendant, she had used an altered photo pack in her deposition of a child witness in violation of Florida law. Following the use of the altered photo pack, wherein the witness misidentified the purported perpetrator of the crime as compared to a previous statement given to law enforcement, respondent moved to suppress the witness’s out-of-court identification of her client. Thereafter, the Assistant State Attorney cross-moved to preclude the use of the misidentification testimony elicited at the deposition, arguing that respondent’s actions in using the altered photo pack during the deposition were impermissible under Florida case law (see State v Kuntsman, 643 So 2d 1172 [Fla 3rd Dist Ct App 1994]). Ultimately, respondent reported her conduct to the Florida Bar, resulting in the aforementioned suspension, as well as a directive that she attend the Florida Bar’s Ethics School and Professionalism Workshop within six months of the date of the Court’s order and pay certain fees and costs. Respondent was automatically reinstated in Florida in May 2023, and was reciprocally disciplined in Michigan, but was reinstated in that jurisdiction in September 2023. 

Respondent had notified New York of the Florida and Michigan actions.

Sanction

At the outset, we have significant concerns about respondent’s primary defense that, as a practicing attorney with 10 years of experience in the field of criminal law, she was unaware of case law prohibiting the use of altered photo packs in witness depositions. Despite her arguments that the mistake was in good faith, and was a consequence of being a public servant with a significant caseload, and her supposition that other attorneys were purportedly unfamiliar with the rule which she was found to have violated, we note that respondent is now practicing full time in this state in a position of considerable public trust. Notwithstanding this, upon review of all of the facts, and in order to protect the public, maintain the honor and integrity of the profession and to deter others from engaging in similar misconduct, we censure respondent.

(Mike Frisch)