TALLAHASSEE, Florida. A Northwest Florida judge ponders how to handle an appeals court case against an attorney who made national headlines by donning a Grim Reaper costume to criticize Governor Ron DeSantis’ handling of the coronavirus pandemic.
In March, at the instigation of a three-person jury from the 1st District Court of Appeal, the public prosecutor filed an application for sanctions to be imposed on the lawyer Daniel Uhlfelder in Santa Rosa Beach. The panel took the rare step of ordering District Attorney Ginger Bowden Madden to ask a judge to consider penalties for “allegedly unprofessional conduct” after Uhlfelder made comments to a newspaper following a court ruling.
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In the past few months, Uhlfelder has appeared across Florida in a macabre Grim Reaper outfit to draw attention to topics like DeSantis’ refusal to close beaches amid the pandemic.
During a hearing on Monday, Uhlfelder’s attorney Richard Greenberg urged Santa Rosa County District Judge Scott Duncan to dismiss the case, arguing that the appeal court’s order for the possible sanctions violated a disciplinary rule cited by the three-person panel.
The rarely used rule allows judges to instruct prosecutors to file a motion for disciplinary action if an attorney is “guilty of an unprofessional act” as provided by Florida Bar Association regulations.
Greenberg told Duncan that the appeals court order is inconsistent with the rule as Uhlfelder has not been found guilty of any wrongdoing.
Greenberg noted that the rule was drafted before the Florida Bar became largely responsible for conducting investigations into attorney behavior, a process that has existed since the 1940s.
“Although the rule has existed all these years, it is almost never used. However, it is our position that the rule must be followed if it is applied, ”Greenberg Duncan said during the hour-long hearing on Monday.
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However, Duncan was skeptical.
“But isn’t this really a matter of determining whether or not there has been a violation?” Said the judge. “Let’s say the DCA (District Court) said he was guilty. I struggle with this because they are not the ones making that decision. Ultimately, that’s my decision, or maybe someone else’s decision, because maybe after all the evidence has been presented, I find that there is no violation. “
Assistant prosecutor Anne N. Izzo told the judge to press an investigation into Uhlfelder’s behavior and said the court had “jurisdiction to investigate disciplinary measures or violations.”
Duncan indicated that at least some of the problems were confusing.
“I guess I’m just a little confused about what it means ‘was guilty’,” said the judge. “It’s confusing language because it’s like you’ve already established he’s guilty. Well, if they have already found him guilty, then send it to a district court to, I think, re-determine that he is guilty, or then maybe not guilty.
Duncan asked Greenberg and Izzo what they thought he should do if he didn’t turn the case down.
“If we have a hearing on this, should I assume he’s guilty or should I hold a full evidence hearing to see if he’s guilty?” said the judge. “You have to say the words ‘was guilty’ as opposed to ‘might’ be guilty. If you’ve already determined he’s guilty, what should I do? Should I just punish or should I find out whether he is guilty or not? “
Greenberg pointed out that the Florida Bar is conducting an investigation into whether Uhlfelder violated the cannons that regulate attorney behavior.
“There is no question that the District Court of Appeals could have referred this matter directly to the Florida Bar without comment. … They didn’t do that. You used this one specific rule that contains a requirement. And if they don’t follow this rule, you must respectfully tell the court that they have used the wrong procedure, ”argued Greenberg.
The legal scramble has its roots in a lawsuit Uhlfelder filed in March 2020 to force the governor to close beaches to prevent the spread of COVID-19. Leon County district judge Kevin Carroll ruled that he had no power to order the governor to shut down Beaches, which resulted in Uhlfelder taking the case to the Tallahassee Court of Appeals.
The three-member panel called on the bar association on February 5 to consider sanctions against Uhlfelder, said there was “no basis in good faith” for the appeal and accused Uhlfelder and his lawyers of “using this court only as a stage to play their version of political theater. ”Greenberg was not involved in the lawsuit.
Florida Intelligence wrote about the order in a story posted online by the Tallahassee Democrat, a subscriber to the Intelligence Service. The story, published by the Democrat, also included comments Uhlfelder made during a brief interview with the Democrat-affiliated USA TODAY NETWORK-Florida Capital Bureau.
“I find it interesting that this statement, which attacks my criticism of Governor DeSantis, appeared only two days after the establishment of a (political) committee to remove Ron DeSantis,” said Uhlfelder during the interview, referring to the so-called “Remove Ron Political Committee”. .
After the story was published, the three-person jury ordered the Bowden Madden office to file a disciplinary motion against Uhlfelder for “allegedly unprofessional behavior.”
Duncan asked Izzo if the prosecutor had the discretion to pursue the sanctions.
“I don’t think we have any discretion not to file motions, and I think it is up to the court to determine and investigate whether there has been a violation of the rules and, if so, to sanction it,” she said.
Deciding the appellate judges were wrong poses a challenge for Duncan, and Greenberg appeared to admit on Monday.
“I can see that your honor is sitting here and may have to tell a higher court that you didn’t obey the rules,” he said.
But Uhlfelder’s lawyer argued that Duncan had “no choice but to dismiss the case” “because he did not follow the rule.”
“And once that’s done, it will be up to the 1st DCA to decide whether to … take further action,” said Greenberg.
Duncan said he would “deliberate” the case and issue a decision soon.
“Interesting case, interesting arguments. We’ll look at this and I’ll make a decision in a couple of weeks, ”he said.
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