Ten Days Not Enough

The Florida Supreme Court has imposed a 90-day suspension of a relatively inexperienced attorney 

Martinez was a member of the Bar for just two months when she was hired in February 2017 as an associate by Silverberg Brito, PLLC (Silverberg). Silverberg terminated her employment less than four months later.

After her employment was terminated, Martinez retained possession of a USB drive belonging to Silverberg. Silverberg demanded Martinez return the USB drive. She stated she would return it, but she did not do so initially. After multiple requests by Silverberg, Martinez returned the USB drive, but the drive was empty. The referee found that Martinez’s deletion of the contents of the USB drive constituted violations of rules 4-3.4 (Fairness to Opposing Party and Counsel), 4-8.4(c) (“A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation . . . .”), and 4-8.4(d) (“A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice . . . .”).

Also, after her employment was terminated, Martinez attempted to negotiate with Silverberg about the language for a joint letter to be sent to Silverberg’s clients on whose cases she worked. The letter would have informed the clients of Martinez’s departure from Silverberg, and it would have advised the clients that they could proceed with Martinez as their attorney, stay with Silverberg, or hire new counsel. These negotiations broke down, and Martinez acted unilaterally to inform the firm’s clients of her departure from Silverberg and their options going forward.

Silverberg claimed that when unilaterally contacting the clients, Martinez disparaged and defamed Silverberg and its attorneys to the firm’s clients and otherwise interfered with the relationships between the clients and the firm. Silverberg also claimed that Martinez unilaterally filed notices of appearance in cases involving Silverberg’s clients without first notifying Silverberg and without presenting proof that the clients chose to have her represent them.

Regarding Martinez contacting the clients, the referee recommends finding that Martinez engaged in minor misconduct in violation of rule 3-4.3 (Misconduct and Minor Misconduct). Additionally, the referee recommends finding Martinez guilty of violating rule 4-8.4(d) because in at least one case, Martinez filed a notice without proper client authorization and unreasonably delayed her withdrawal for about one month.

Because Martinez delayed returning the USB drive and began contacting and filing notices of appearance in Silverberg’s clients’ cases, Silverberg sought injunctive and civil relief against Martinez. In that civil case, Martinez filed several notices of unavailability, which the Bar argues were improper. However, the referee did not recommend finding Martinez guilty of any rule violations for this because he did not believe Martinez’s notices of unavailability constituted dishonest conduct warranting discipline given her lack of experience at the time and the confusion surrounding the proper uses of notices of unavailability.

Drive they ruled

Martinez’s act in deleting the contents on the drive was prejudicial to the administration of justice because the contents of the drive were relevant to Silverberg’s civil case against Martinez.

Accordingly, we approve the referee’s findings of fact and find Martinez guilty of violating rules 4-3.4, 4-8.4(c), and 4-8.4(d) for delaying the return of the USB drive and deleting its contents.

Client contacts

we note that these are guidelines provided in the comment to the rule as to which clients should be contacted, but they do not prohibit contacting clients for which these thresholds are not met. Nevertheless, relying on Martinez’s billable hours, the referee found that she provided significant legal services for the clients she contacted.

Accordingly, we approve the referee’s recommendation that Martinez be found not guilty of violating rule 4-5.8 for contacting the clients.

Notice to clients

After filing her notice of appearance in the Gershfeld case, Martinez attempted to undo a settlement offer that was sent by Silverberg before Martinez filed the notice of appearance and tried to assert her claim to attorney’s fees from a settlement. This resulted in the filing of a motion to enforce the settlement agreement by the insurance company and the disputed funds being held in the court’s registry, causing substantial delay before the court entered an order awarding the entire amount of -attorney’s fees to Silverberg. Thus, because Martinez’s conduct was prejudicial to the administration of justice, we approve the referee’s recommendation that Martinez be found guilty of violating rule 4-8.4(d). 

…we uphold the referee’s recommendation that Martinez be found guilty of violating rule 4-8.4(d) but disapprove the referee’s recommendation of finding no guilt for violating rules 4-3.1, 4-3.3, and 4-8.4(c), instead finding Martinez guilty of violating these rules.

Unavailability

The Bar contends that Martinez violated rules 4-3.4(c), 4-8.4(c), and 4-8.4(d) by filing multiple notices of unavailability and trying to avoid being deposed in her civil case against Silverberg. We agree and find Martinez guilty of violating rules 4-3.4(c), 4-8.4(c), and 4-8.4(d).

Referee’s proposed ten day suspension

In considering these cases, along with the mitigation found in this case, specifically Martinez’s inexperience in the practice of law as well as personal and emotional problems, we have determined that a 90-day suspension is appropriate in this case.

(Mike Frisch)