Panama City, FL –
TALLAHASSEE, Fla. (The News Service of Florida) – A Northwest Florida judge assesses how to handle an appeals court-fueled case against a Walton County attorney who made national headlines by donning a Grim Reaper costume to criticize Governor Ron DeSantis’ handling of the coronavirus pandemic.
In March, prosecutors filed a petition asking for sanctions against Santa Rosa Beach lawyer Daniel Uhlfelder at the request of a panel of three judges of the 1st District Court of Appeal. The panel took the rare decision to order State Attorney Ginger Bowden Madden to ask a judge to consider penalties for “alleged unprofessional conduct” after Uhlfelder made comments to a newspaper following ‘a court decision.
In the previous months, Uhlfelder has appeared across Florida in the grim Reaper outfit to call attention to issues such as DeSantis’ refusal to close beaches amid the pandemic.
At a hearing Monday, Uhlfelder’s attorney Richard Greenberg urged Santa Rosa County Circuit Judge Scott Duncan to dismiss the case, arguing that the appeals court order regarding the possible sanctions did not respect a disciplinary rule cited by the panel of three judges.
The rarely used rule allows judges to order state attorneys to file a disciplinary motion if a lawyer “has been guilty of an unprofessional act” under Florida bar regulations.
Greenberg told Duncan that the appeals court order does not comply with the rule because Uhlfelder has not been convicted of any wrongdoing.
Greenberg noted that the rule was developed before the Florida Bar became largely responsible for conducting investigations into attorney conduct, a process that has existed since the 1940s.
“Although the rule has been around for all these years, it is hardly ever used. However, our position is that when the rule is used it must be followed, ”Greenberg told Duncan during Monday’s hour-long hearing.
Duncan, however, seemed skeptical.
“But isn’t the whole point of this procedure really in determining whether or not there has been a violation?” said the judge. “Suppose the DCA (District Court of Appeal) declared that he was guilty. I have a hard time with that because they are not the ones making this decision. In the end, it is my decision, or maybe someone else’s decision, as it may be that after all the evidence has been presented, I find that there is no violation.
Deputy prosecutor Anne N. Izzo told the judge he should continue investigating Uhlfelder’s conduct, saying the court had “jurisdiction to investigate any disciplinary action or violation.”
Duncan said at least some of the issues were confusing.
“I guess I’m just a little confused as to what it says ‘was guilty’,” the judge said. “It’s confusing language because it’s like they’ve already determined he’s guilty. Now, if they’ve already determined he’s guilty, then they send him to a circuit court to, I guess, re-determine he’s guilty, or maybe not guilty.
Duncan asked Greenberg and Izzo how they thought he should proceed if he didn’t dismiss the case.
“If we have a hearing about this, should I assume he is guilty or do I have to do a full hearing of the evidence to determine if he is guilty?” Said the judge. “They have to say the words ‘has been guilty’ as opposed to ‘may be’ guilty. If they’ve already determined he’s guilty, then what am I supposed to do? Do I just inflict a punishment or do I have to determine whether he is guilty or not? “
Greenberg pointed out that the Florida Bar is investigating whether Uhlfelder violated canons governing the conduct of lawyers.
“There is no doubt that the 1st District Court of Appeals could have referred this matter directly to the Florida Bar without comment. … They did not do it. They used this specific rule which has a precondition. And if they don’t follow this rule, your Honor must respectfully tell the court that they used the wrong procedure, ”Greenberg said.
The legal feud is rooted in a lawsuit brought by Uhlfelder in March 2020 to try to force the governor to close beaches to prevent the spread of COVID-19. Leon County Circuit Judge Kevin Carroll ruled he did not have the power to order the governor to close the beaches, which led Uhlfelder to take the case to the Court of Appeals for Tallahassee.
On February 5, the three-judge panel asked the bar to consider imposing sanctions on Uhlfelder, saying there was “no good faith basis” for the appeal and accusing Uhlfelder and his lawyers of ‘using “this tribunal simply as a step from which to act out their version of political theater. Greenberg was not involved in the trial.
The Florida News Service wrote about the order in an article posted online by the Tallahassee Democrat, a news service subscriber. The story, as posted by The Democrat, also included comments Uhlfelder made in a brief interview with USA TODAY NETWORK-Florida Capital Bureau, which is affiliated with the Democrat.
“I find it interesting that this opinion attacking my criticisms of Governor DeSantis came to light just two days after I launched a (political) committee to remove Ron DeSantis,” Uhlfelder said in the interview, referring to what is dubbed the committee. policy Remove Ron. .
After the article was published, the three-judge panel ordered Bowden Madden’s office to file a motion to sanction Uhlfelder for “alleged unprofessional conduct.”
Duncan asked Izzo if the prosecutor’s office had the discretion to pursue the sanctions.
“I don’t think we have the discretion not to give evidence 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 that”, she declared.
Deciding that the appellate judges erred is a challenge for Duncan, Greenberg appeared to concede on Monday.
“I can recognize that your honor is sitting here, maybe having to tell a higher court that they haven’t played by the rules,” he said.
But Uhlfelder’s lawyer argued that Duncan “has no choice but to dismiss” the case “because she does not follow” the rule.
“And once that is done, it will be up to the 1st DCA to decide if they want to take… other action,” Greenberg said.
Duncan said he would take the matter “under advisement” and render a decision soon.
“Interesting case, interesting arguments. We will review it and I will make a decision in a few weeks, ”he said.
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