The Florida Bar: using similar evidence to obtain drastically different outcomes

By Francisco Alvarado, FloridaBulldog.org

Jose Maria Herrera is making one last stand to save his career. Three months after the Florida Supreme Court disbarred him for 10 years, the litigator is seeking a rehearing of his case based on the outcome of a separate Florida Bar complaint against fellow lawyer Ramon Rodriguez. Both men were accused of conspiring with one another and a third attorney to take down prominent ex-federal prosecutors Guy Lewis and Michael Tein.

Lewis, a former U.S. Attorney for South Florida, and Tein represented the Miccosukee Tribe of Indians of Florida and some of its members for a number of years until they were fired in 2010 following a change in tribal leadership.

It’s a sordid saga that exposes how the Florida Bar’s disciplinary process allows high-profile lawyers to dictate what investigators write in the final report recommending sanctions against rivals. In this instance, Tein was allowed to draft significant portions of Miami-Dade Circuit Court Judge Dava Tunis’ referee report that the Supreme Court relied on as findings of fact.

It also illustrates how the Florida Bar used similar evidence against Herrera and Rodriguez, but with dramatically different results. The Rodriguez complaint was dismissed while Herrera lost his law license for the next decade. 

Herrera contends the final version, which also included sections written by Bar Counsel Jennifer Falcone on Tunis’ behalf, omitted crucial evidence that bolstered his defense. The judge found Herrera guilty of breaking 14 Bar ethics rules, but the Supreme Court dismissed two counts when it upheld Tunis’ ruling in July.

Other Florida Bar complaint

In the other Bar complaint, Miami-Dade Circuit Court Judge Jorge Cueto exonerated Rodriguez, who represented a family who successfully sued the Miccosukee Tribe in a wrongful-death case. Falcone, who also prosecuted Rodriguez, alleged Rodriguez schemed with the two other attorneys to make Tein and Lewis liable for post-judgment fees and to paint the tribe’s ex-lawyers in a harsh light. In recommending dismissal of the complaint, Cueto cast doubt on Lewis’ and Tein’s allegations and criticized the Bar’s case claiming Rodriguez had filed frivolous lawsuits against them.

“Judge Cueto’s findings refute the veracity of the facts, evidence, and alleged violations crafted by Mr. Tein in my case,” Herrera said in an email statement.

Reached on his cellphone, Tein declined to respond to Herrera’s claims on the record, except to note Cueto’s ruling is an “outlier that stands in stark contrast” to rulings in state, federal and appellate courts that determined his adversaries were involved in filing frivolous lawsuits against Lewis and him that resulted in severe damage to their reputations. “I’m the victim here,” Tein said. Lewis did not return messages seeking comment.

Calls to Bar Counsel Falcone and Florida Bar Executive Director Joshua Doyle were routed to Bar spokeswoman Francine Walker. “No one with The Florida Bar will comment on any disciplinary case,” she said in an email statement. “This issue in the Herrera case you described to me was both raised on appeal and presented at oral argument before the Supreme Court. The Court made no finding of wrongdoing by the Bar and affirmed the Referee’s recommendation of a 10-year disbarment.”

In the Florida Bar’s disciplinary process, a county or circuit court judge acts as a referee to determine a lawyer’s guilt once probable cause for a complaint is established. The Supreme Court, which has final say, rarely overturns the lower court judge’s findings. Cueto refereed Rodriguez’s case while Tunis presided over the cases against Herrera and Bernardo Roman, the former in-house counsel for the Miccosukee Tribe who filed three allegedly frivolous lawsuits against Lewis and Tein. 

State and federal judges in those cases sanctioned the tribe and Roman, with the Miccosukees ultimately paying Lewis and Tein $4 million. In July 2018, the Supreme Court upheld Tunis’ decision to punish Roman with a lifetime disbarment.

Florida Bar complaints

The origins of the bar complaints center around a $2.9 million judgement in a wrongful death case against Miccosukee members Jimmie Bert and Tammie Billie, who were represented by Lewis and Tein. In 2012, Herrera took over representation of Bert. Rodriguez, who represented the plaintiff, had accused the tribe of paying attorney fees for Bert and Billie, even though it wasn’t a party to the case. Lewis and Tein have steadfastly maintained that their former clients received loans from the tribe to pay legal fees.

In addition to allegedly helping Rodriguez make unfounded allegations against Lewis and Tein, the Florida Bar accused Herrera of doing legal work on behalf of the tribe to the detriment of Bert and that there was no joint defense agreement that would have allowed Herrera to avoid a conflict of interest. On April 5, 2018, Tunis released her final report that found Herrera guilty. 

Public records obtained by one of Herrera’s supporters, Miami-based private investigator Frank Gonzalez, show the Tunis’ report relied heavily on two drafts written by Tein that Falcone incorporated in the final version the judge signed. On Aug. 1, 2017, Falcone’s legal secretary emailed Tein a nine-page template for the  referee’s report that did not contain any findings of fact, case law or a narrative summary of the charges against Herrera. The same day, Falcone emailed Tein, telling him, “I would need whatever you are going to send by the 10th so I can make any changes, tweaks, or additions before it is actually due.”

On Aug. 8, 2017, Tein sent his first draft to Falcone’s email address for her personal business, Ultimate Travel Plans. The subject line read: “13 MB let me know if it is too big and I will send you link.” The following day, he sent Falcone a second file to the same email address. The subject line read: “Second Draft: Beefed up and proofed. I think you will like.”

The Tein drafts

The Tein drafts are roughly 50 pages each, detailing the case against Herrera, including alleged incriminating testimony he made during the Tunis proceedings, as well as charts and screenshots showing the claims that the Bert and Billie payments were not loans were false. On Aug. 31, 2017, nearly three weeks later, Falcone forwarded the Tein drafts to her Florida Bar work email and to her legal secretary’s email.

Two more versions, Falcone’s proposed findings and Tunis’ final report, were 82 pages each and incorporated the 50 pages Tein wrote. The additional pages detailed case law supporting a 10-year disbarment, the conclusion and the recommendations of guilt. The final version by Tunis provides a damning portrait of Herrera, stating that he continuously espoused positions contrary to the evidence at the evidentiary and sanctions hearings against him. “The evidence available shows that he did so in a knowing and intentional manner with utter disregard for the consequences of his conduct,” the final report states.

Yet, Falcone has given conflicting statements regarding Tein’s involvement in drafting the report. On Jan. 18, 2018, during a supplemental hearing before Tunis, Falcone stated “bar counsel drafted a complaint and then sent that draft to its witnesses.” She said it was an act of due diligence to “make sure that my facts, as I’m reading them, are accurate,” according to a transcript of the proceedings.

As far as the referee’s report, Falcone said Tein had limited involvement that entailed giving her ideas and inserting charts and documents.

“I spent, I want to say, I spent well over 100 hours drafting that,” Falcone said. “For them to suggest that’s not my work product, I find that highly, highly insulting.”

When Falcone addressed Tein’s involvement before the Supreme Court on July 17, she admitted he did more than review a draft for accuracy. “Bar counsel received the draft, reviewed every single line, made changes where necessary or appropriate,” Falcone said while referring to herself in the third person. “She looked at the findings of fact. Every one [of the findings] was backed up to citations or exhibits in the record.”

Rodriguez’s exoneration

On Aug. 5, a month after the Supreme Court unanimously voted to disbar Herrera for 10 years, Cueto released his findings in favor of Rodriguez. Despite presenting very similar  evidence used against Herrera, the Florida Bar didn’t get the same result. Cueto opined that Rodriguez should be paid attorney fees. The judge also raised doubts about the assertions made by Lewis and Tein that the Bert and Billie payments were advances made by the tribe.

“I cannot think of a party more worthy of an award of attorney’s fees and costs than this respondent,” Cueto wrote in his amended report to the Florida Supreme Court. He also determined it was “highly suspect” that Lewis Tein invoices were addressed to the tribe, its chairman or financial officer for several years before they were directed to Bert and Billie.

Regarding the Florida Bar’s accusations that Rodriguez filed frivolous claims, Cueto wrote: “It is not credible for anyone to say that respondent had no reasonable basis in fact for his contention that the tribe was the real party in interest, had paid for the defense, directed and controlled the defense.”

On Sept. 20, the Florida Bar filed a notice that it would not seek a review of Cueto’s report. Herrera hopes Rodriguez’s exoneration will help bolster his case for a rehearing before the Supreme Court to at least reduce his punishment. He contends the Florida Bar should launch an inquiry into Tein helping Falcone draft the report.

“It is disappointing how the integrity of the Florida Bar disciplinary process was compromised without consequences or even an investigation of any kind,” he said. “Even more disappointing is how those who oversee the Bar refuse to address the matter or take any action.”

Update: On Nov. 5, the Florida Supreme Court denied without comment Herrera’s motion for a rehearing.