The respondent, Schwartz, is a criminal defense attorney who used two defense exhibits during a pre-trial deposition. Schwartz created the exhibits, two black and white photocopies of a police lineup, by altering 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.

Initially, the Court reversed a referee’s finding that no violation had occurred: “Rule 8.4(c) provides in pertinent part that ‘a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’ To sustain a violation of that rule, the Bar must prove intent. The element of intent can be satisfied, however, merely by showing that the conduct was deliberate or knowing. Therefore, the motive underlying the lawyer’s conduct is not determinative; instead the issue is whether he or she purposefully acted. Here, the referee improperly focused upon Schwartz’s asserted motive, which was to provide constitutionally effective assistance of counsel, apparently by attempting to undermine the victim’s identification of Schwartz’s client. As the above-cited case law makes clear, Schwartz’s motive or purpose in acting is not determinative of a Bar Rule 4-8.4(c) violation. Indeed, if motive were the standard for evaluating whether the rule was violated, there would be no reason for ‘absence of a dishonest or selfish motive’ to be a mitigating factor. Thus, notwithstanding the referee’s credibility findings and her finding that Schwartz did not subjectively intend to deceive the witness, this finding does not address the undisputed fact that Schwartz knowingly and deliberately created the defense exhibits by altering photocopies of the police lineups and showing them to the victim at the deposition. Those exhibits included the victim’s circle of subject number five and the victim’s and detective’s signatures, along with a photograph of the so-called alternate subject replacing the defendant’s image, and a photograph altering the defendant’s image by imposing the alternate subject’s hairstyle. Our consideration of the defense-altered exhibits leads to the inevitable conclusion that they are deceptive on their face.” Florida Bar v. Schwartz, 284 So.3d 393 (Fla. 2019).

After a new referee was appointed to recommend discipline, the Court suspended the respondent for three years. “We reiterate that the requirement to provide zealous representation, as contemplated under our ethical rules does not excuse engaging in misconduct, irrespective of one’s intent to benefit the client. As we have previously observed, we must never permit a cloak of purported zealous advocacy to conceal unethical behavior. At the same time, we have recognized that ethical problems may arise from conflicts between a lawyer’s responsibility to a client and the lawyer’s special obligations to society and the legal system. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. 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.”

 

Florida Bar v. Schwartz, No.17-1391, 2022 WL 484167 (Fla. Feb. 17, 2022).