By Noreen Marcus, FloridaBulldog.com
When a federal judge accused Broward lawyer Peter Ticktin of misconduct, the Florida Bar was expected to open a file and start an investigation.
But that didn’t happen. Ticktin confirmed to Florida Bulldog that the Bar ignored the judge’s loud call for accountability.
It’s been 14 months since West Palm Beach U.S. District Judge Donald Middlebrooks sanctioned Ticktin, former president Donald Trump and New Jersey-based lawyer Alina Habba — now well known for defending Trump in the E. Jean Carroll New York defamation trial that ended Friday with an $83.3 million jury award against Trump.
The judge assessed penalties topping $1 million against Trump and his lawyers Ticktin and Habba for misusing a federal lawsuit to reprise his fantasies about Hillary Clinton and her “deep state” co-conspirators. The case is pending in the U.S. Court of Appeals for the 11th Circuit in Atlanta.
“Lawyers are enabling this behavior and I am pessimistic that … [a rule] alone can effectively stem this abuse,” Middlebrooks wrote in November 2022 after he tossed Trump’s rambling, grievance-filled complaint.
“Aspects may be beyond the purview of the judiciary, requiring attention of the Bar and disciplinary authorities,” he wrote. “Additional sanctions may be appropriate.”
Middlebrooks recognized an obvious breach of the federal court rule barring fact-free, “performative” political lawsuits. And the Florida Bar can look to its own guideline that says, “A lawyer shall not bring or defend a proceeding … unless there is a basis in law and fact for doing so that is not frivolous.”
Ironically, a professional oversight rule that took effect in December 2021 gives Florida judges more sway over any attorney discipline cases they initiate. If a Florida Bar grievance committee rejects a judge’s complaint against a lawyer, the Florida Bar Board of Governors can intervene and give the complaint a second look.
‘A DEVASTATING REBUKE’
When Middlebrooks released his sanction order, Ken White, a Los Angeles criminal defense and First Amendment lawyer, called it “a devastating rebuke” of Ticktin.
“It’s an extremely strong call-out to the state Bar,” said White, host of “Make No Law: The First Amendment Podcast.”
“Usually, to get them interested you have to steal money from a disabled client’s trust account. The one other thing that will get them involved is a call-out from a federal judge,” he said.
Yet last week Ticktin, of Deerfield Beach, admitted what public records rules allow the Florida Bar to conceal: The Bar has not investigated him.
“Nor should it,” Ticktin told Florida Bulldog. He takes the position that Middlebrooks, “a good, decent, honest judge,” ruled the way he did because he was misinformed – or rather, differently informed.
“The decision was political,” Ticktin said. “I’m not saying the judge is political, but in the current environment you’ve got two different kinds of people, those that believe what they see in the media and those who look at alternative news and tend to believe what they see in the alternative news.
TICKTIN: IT’S ALL POLITICS
“Since that basic background tends to cause you to have a political perspective that’s consistent with one side or the other; in this situation, Judge Middlebrooks watches the media. He didn’t believe Hillary Clinton could have possibly done the things that she did,” Ticktin said.
“But the Steele dossier didn’t write itself. We know where the money came from and it may not be something that people talk about in the sources of news that Judge Middlebrooks watches,” he said.
The Steele dossier that Ticktin referenced is a partly discredited report on collusion between Trump’s team and the Russian government before and during the 2016 presidential campaign.
Multiple media reports show that research for the Steele dossier was funded first by Republicans, then by Democrats. The author is counterintelligence expert Christopher Steele.
Although the investigation by Special Counsel Robert Mueller revealed Russia’s interference in the 2016 election, it’s an article of Trumpian faith that the Clinton cabal paid for and manipulated Steele’s report to make Trump look bad.
Ticktin said he wasn’t surprised that the Florida Bar ignored Judge Middlebrooks’s referral. “I can’t imagine that they would look at this and think it’s anything that needs to be resolved by anyone other than the 11th Circuit.”
THE BAR: WHAT REFERRAL?
In fact, though, the 11th Circuit has nothing to do with Florida lawyer discipline, which is the sole province of the self-regulated Florida Bar. Supervised by an internal Board of Governors, the Bar reports to the Florida Supreme Court.
Attorney punishment ranges from a reprimand to permanent disbarment. Bar counsel and grievance committees screen incoming complaints; the ones deemed legitimate are investigated and, when charges result, they’re tried by a referee. Findings and recommendations go to the Supreme Court, the final disciplinary authority.
Ticktin knows the drill. He’s had three reported run-ins with the Florida Bar in cases that are too old to appear in his 10-year disciplinary history. Twice the Supreme Court ordered him to briefly shut down his practice, ruling in 2009 he’d shown “poor professional judgment” resulting in “misconduct … unbecoming of a member of the Florida Bar.”
Florida Bar President Scott Westheimer did not respond to Florida Bulldog emails requesting comment.
But Bar spokesperson Jennifer Krell Davis provided Florida Bulldog a twofold response in emails.
She questioned whether Judge Middlebrooks actually made a referral because his office didn’t send the Bar his sanction order – the one that attracted intense media attention. Transporting the order would have created an official record of a judicial referral; none exists, according to Davis.
She also suggested it’s impossible to say whether the Bar ever started or has finished investigating Ticktin. That’s due to gaps in public records laws, including a retention schedule – essentially a document destruction device.
Under the retention schedule then in place, if a complaint against Ticktin was screened by Bar staff and found wanting before Jan. 1, 2023, any written communication about the process disappeared a year later, on or before Jan. 1, 2024. (Florida Bulldog submitted a public records request on Jan. 17.)
If, however, a Ticktin complaint got past initial screenings and an investigation ensued, it may be ongoing or it may have sputtered out. Bar rules prevent the public from seeing a complaint unless and until it results in one or more charges.
Ticktin says there’s been no investigation. You’d think he’d know by now.
UHLFELDER’S COVID RESPONSE
In contrast to Ticktin, the Bar seems intent on punishing Daniel Uhlfelder. He’s a real-estate lawyer with a clean record who opposed Gov. Ron DeSantis’s signature open-beaches policy early in the pandemic.
Uhlfelder, of Santa Rosa Beach in the Panhandle, lobbied for Covid restrictions as his alter ego “The Grim Reaper.” He strode across public beaches wearing a hooded black robe and carrying a scythe.
His appearances drew national attention — along with some scorn. Then Uhlfelder darkened his harmless goofball image by filing a lawsuit against DeSantis to force changes to his Covid policies.
Uhlfelder showed his serious side also by starting a PAC to defeat DeSantis in 2022 and making a Democratic primary run for Attorney General. Aramis Ayala bested him in August 2022 and Ashley Moody won reelection three months later.
Eventually Uhlfelder won the respect of a Tallahassee trial judge but suffered a beatdown in the 1st District Court of Appeal. That was in February 2021; three years later he’s still fighting for his livelihood, with no end in sight.
JUDGES SLAM ‘FRIVOLOUS’ CASE
Leon County Circuit Judge Kevin Carroll granted DeSantis’s motion to dismiss Uhlfelder’s lawsuit because, the judge reasoned, every governor needs unrestricted freedom to confront a public health threat.
He also found that Uhlfelder “has an understandable concern that he has raised here, and I believe he has pursued this matter in good faith and is seeking what he believes to be an appropriate response to the Covid crisis.” (Judge Carroll, 67, died suddenly after a heart attack on March 15, 2023.)
On appeal, however, a three-judge 1st DCA panel gave zero credence to Uhlfelder’s public-spirited mission. The panel attacked him with a zeal that judges usually reserve for unrepentant felons.
Right from the start, Judges Bradford Thomas, Adam Tanenbaum and Susan Kelsey set out to hold Uhlfelder in contempt for bothering them. They ordered him to explain why he shouldn’t be sanctioned “for filing this appeal, the initial brief, and the request for oral argument, which appear to be frivolous and/or filed in bad faith.”
Then the panel refused to reinstate his lawsuit and consigned Uhlfelder and his lawyers to the Bar disciplinary process.
“Appellant and his counsel are officers of this state’s courts; they knew or should have known that their ‘demands’ that the Governor ‘close the beaches’ were not validly asserted [in the trial court] below or on appeal,” the panel’s Feb. 5, 2021 ruling says.
“Appellant and his counsel undoubtedly used this court merely as a stage from which to act out their version of political theater,” the ruling says. “This was unprofessional and an abuse of the judicial process.”
35 UPDATES AND COUNTING
The judges didn’t stop there. Days later they took the extraordinary step of ordering the State Attorney for Walton County, where Uhlfelder lives, to charge him with criminal contempt, punishable by a fine or a jail sentence.
They kept the 1st DCA case open so they could easily monitor progress in the Walton County prosecution. There’s been none to speak of so far.
The Pensacola State Attorney’s Office files monthly status reports to the appellate court. As of Jan. 3 they’re up to Number 35. Number 34, dated Dec. 4, 2023, offers information about the long-anticipated Uhlfelder disciplinary action.
The report says on Oct. 6, 2023, a Florida Bar grievance committee found probable cause to proceed against him for violating these rules: misconduct and minor misconduct; candor towards the tribunal; conduct involving dishonesty, fraud, deceit or misrepresentation, and conduct prejudicial to the administration of justice.
The Uhlfelder Bar complaint, now pending in the Supreme Court, indicates that all the rules he allegedly violated relate to whether he properly informed the 1st DCA that the lawyers who’d worked with him in the trial court had withdrawn before Uhlfelder filed the appeal.
“This clearly is political. If you all want to distance yourselves from me that’s fine. I understand if it makes you feel better,” Uhlfelder wrote to them at one point, the complaint says. The 1st DCA had referred the lawyers, William Kitchen and Marie Mattox, to Bar overseers along with Uhlfelder.
The Oct. 6 charging notice that Bar counsel Olivia Paiva Klein sent Uhlfelder is revealing. “It is recommended that you review the procedures for admission of minor misconduct and conditional guilty pleas,” the notice states.
Uhlfelder’s case is edging forward. On Thursday Supreme Court Chief Justice Carlos Muniz tapped Chief Judge Melissa Olin of the 3rd Judicial Circuit in Lake City to name a referee.
Clearly, unless Uhlfelder cops the plea to minor misconduct that the Bar is dangling, the referee will hold a hearing. And the disciplinary process will continue grinding along.
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