Picture Imperfect: The Limits Of Zeal

A criminal defense attorney drew a three-year suspension from the Florida Supreme Court

Schwartz, a criminal defense attorney who was admitted to the Bar in 1986, became the subject of the instant Bar proceedings based upon his use of two defense exhibits during a pretrial deposition. While representing the defendant in State v. Virgil Woodson, Circuit Case No. 13-2013-CF-012946-0001-XX (MiamiDade County, Florida), Schwartz created the exhibits, two black and white photocopies of a police lineup. In each, Schwartz altered the defendant’s picture. In one exhibit, he replaced the defendant’s face with that of an individual whom witnesses other than the robbery victim had identified as the perpetrator. In the other exhibit, Schwartz changed the defendant’s hairstyle. However, the altered photocopies used at the deposition retained the victim’s identification of the defendant, including both her circle around what had been the defendant’s picture and her signature at the bottom of the lineup, as well as a police officer’s signature. In a complaint filed with the Court on July 27, 2017, the Bar alleged that Schwartz’s use of the exhibits, without disclosing that the photo lineups had been altered, violated Bar Rules 3-4.3 (Misconduct and Minor Misconduct) and 4-8.4(c) (“A lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”). We referred the matter to a referee for further proceedings.

After a first referee's report was rejected

Following the appointment of a new referee and a sanctions hearing, the successor referee ultimately recommended that Schwartz receive a ninety-day suspension, to be followed by a oneyear term of probation. The Bar sought review of the referee’s recommendation, arguing that a three-year, rehabilitative suspension is warranted. For the reasons discussed below, we disapprove the referee’s report and instead impose a three-year suspension.

The limits of zeal

In the instant case, we are of the opinion, in light of Schwartz’s history of repeated transgressions and the increasing egregiousness of each infraction, that he has been an overzealous advocate incapable of seeing the forest for the trees.

(Mike Frisch)