Florida Bar v. Scheinberg

Citations: 129 So. 3d 315; 38 Fla. L. Weekly Supp. 432; 2013 Fla. LEXIS 1225; 2013 WL 3064825Docket: No. SC11-1865

Court: Supreme Court of Florida; June 20, 2013; Florida; State Supreme Court

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Respondent Howard Michael Scheinberg is recommended for a one-year suspension from the practice of law due to professional misconduct in violation of the Rules Regulating the Florida Bar. The misconduct involved undisclosed personal communications with former Judge Ana Gardiner during the capital murder trial of Omar Loureiro, where Scheinberg served as lead prosecutor. Between March 23, 2007, and August 24, 2007, they exchanged 949 phone calls and 471 text messages, which Scheinberg did not disclose to Loureiro's attorney, compromising due process and leading to a new trial agreement by the Broward State Attorney’s office. The referee found Scheinberg guilty of violating Bar Rule 4-8.4(d), noting that the undisclosed communications prejudiced the administration of justice. Three aggravating factors were identified: a pattern of misconduct, multiple offenses, and substantial legal experience, while four mitigating factors included a lack of prior disciplinary record, cooperation with the disciplinary process, good character, and remorse. Ultimately, the Court approved the findings of fact and guilty recommendation but imposed a two-year suspension instead of one, and awarded costs to The Florida Bar totaling $3,881.96.

Scheinberg has petitioned for review of a referee’s report, contesting both the finding of guilt and the recommended sanction, as well as the denial of his motion to dismiss. The court found no abuse of discretion in denying the motion. Regarding the guilt recommendation, Scheinberg argues that the undisputed facts do not support a violation of Bar Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice. The referee determined that Scheinberg’s extensive personal communications with former Judge Gardiner, while Gardiner presided over the Loureiro capital murder case, contributed to the State's decision to retry the case, constituting a violation of Rule 4-8.4(d). The court concurred, emphasizing the dangers of ex parte communications and noting that Scheinberg’s over nine hundred phone calls and four hundred text messages with Gardiner were not casual and created an appearance of impropriety. The court referenced *In re Adams*, where a judge's romantic relationship with an attorney was deemed misconduct due to its impact on perceived impartiality. The court concluded that Scheinberg's communications similarly undermined judicial impartiality and were pivotal in prompting the retrial of the Loureiro case.

The referee's factual findings support the conclusion that Scheinberg engaged in conduct prejudicial to the administration of justice, violating Bar Rule 4-8.4(d). The recommended sanction is a one-year suspension, but the court has a broader review scope for sanctions than for factual findings. Generally, the court will uphold the referee's recommended discipline if it aligns with existing case law and the Florida Standards for Imposing Lawyer Sanctions. Scheinberg contests the referee's findings regarding aggravating and mitigating factors, arguing for additional mitigating considerations, such as the absence of a dishonest motive and personal issues stemming from his divorce. However, the referee’s findings, which are presumed correct unless clearly erroneous, were upheld by the court. Although Scheinberg provided evidence of good character, it did not outweigh the severity of his misconduct.

The court ultimately disapproved the one-year suspension and imposed a two-year suspension instead, citing the serious nature of Scheinberg's misconduct, which involved undisclosed personal communications with a judge in a capital case, creating an appearance of impropriety. Although the communications did not pertain to the Loureiro case, they were deemed harmful to the judicial process, drawing parallels to prior case law, specifically Florida Bar v. Mason, where similar ex parte communications led to disciplinary action against an attorney.

Scheinberg's communications with former Judge Gardiner prompted an investigation that resulted in the retrial of the Loureiro case, significantly taxing court and opposing counsel resources. Given the severity of Scheinberg’s misconduct and its detrimental impact on justice administration, along with the referee's identified aggravating and mitigating factors, a two-year suspension from practicing law is deemed appropriate, overriding the referee’s lesser recommendation. Scheinberg is suspended effective thirty days from the filing of this opinion to allow for the closure of his practice and client protection. He may expedite the suspension if he notifies the Court in writing of his cessation of practice. Scheinberg must comply with Rule Regulating the Florida Bar 3.5.1(h) and is prohibited from accepting new business until reinstated. The Florida Bar is awarded $3,881.96 in costs against Scheinberg, with execution allowed. Additionally, all disciplinary matters under Bar Rule 3-7.1(a) are confidential, with limited disclosure permitted regarding the proceedings and public records.