By Noreen Marcus, FloridaBulldog.org
A federal judge and a retired Florida Supreme Court chief justice shredded the Florida Bar’s case against lawyer Daniel Uhlfelder during a Zoom hearing last week.
“I’m dismayed, frankly, by this case,” said West Palm Beach U.S. District Judge Donald Middlebrooks. He noted that Uhlfelder lacked a motive for violating the ethics rules he’s about to be punished for allegedly violating.
“I’m not following your argument,” a visibly frustrated R. Fred Lewis, the retired justice, told Bar prosecutor Shanee Hinson.
She’d suggested that the Bar’s two star witnesses against Uhlfelder – his former lawyers – had good reason to claim ignorance of an appeal that’s central to the ethics case. When Lewis explained why they didn’t, Hinson abruptly stopped questioning him.
But in this case skewed by politics, the provocative testimony of Lewis and Middlebrooks will most likely come to nothing. A referee has already rejected Uhlfelder’s defense and endorsed the Bar’s point of view; only his punishment remains to be determined.
But the provocative testimony from Middlebrooks and Lewis will most likely come to nothing. The referee in Uhlfelder’s case already rejected his defense and adopted the Bar’s point of view; only his punishment remains to be determined.
Later this year the referee, Taylor County Circuit Judge Gregory Parker, will send his findings and suggested discipline to the Florida Supreme Court for a final decision. The court, five of whose seven members Gov. Ron DeSantis appointed, tends to rule his way.
Many observers connect the Bar prosecution to Uhlfelder’s headline-grabbing campaign against DeSantis’s pandemic policy. In 2020 Uhlfelder drew national attention to Florida when he appeared on public beaches in a “Grim Reaper“ costume. He also filed a serious lawsuit to force the governor to close the beaches.
The First District Court of Appeal (1st DCA) in Tallahassee tossed Uhlfelder’s “frivolous” case, sent a criminal contempt referral to his home county’s state attorney and demanded a Bar investigation. (The contempt charges are on hold until the Bar proceeding ends.)
Eventually Bar leaders called for leniency in the Uhlfelder case because, as Lewis said in an affidavit, no lawyer should be punished for challenging the government in court. Instead, the Supreme Court told a grievance committee to take another, and presumably harder, look at the Santa Rosa Beach real estate and family lawyer in Walton County.
They found a technical foul that the Bar went on to leverage: For a communications failure shared by Uhlfelder and his ex-lawyers Marie Mattox and Gautier Kitchen, Mattox and Kitchen negotiated a token sanction; then they took center stage for the prosecution at Uhlfelder’s April Bar trial.
‘A PERSON OF CONVICTION’
In addition to Middlebrooks and Lewis, prominent Tallahassee lawyer Barry Richard and retired 1st DCA judge Robert Benton challenged the Bar’s version of events and supported Uhlfelder with sworn testimony.
Richard said he tried to advise Uhlfelder on how to respond to the 1st DCA when the judges handling his case against DeSantis were treating him like a criminal.
“I had no experience with a court sending a lawyer to the Bar because they thought a case was frivolous,” Richard testified at the April trial.
Tampa lawyer Scott Tozian, Uhlfelder’s defense counsel, told Florida Bulldog he’d never heard of a former Supreme Court justice testifying in a Bar case. Tozian said he’s observed only a handful of federal judges at Bar hearings during his 42 years practicing criminal law.
So Lewis may make history by standing up to the Bar on behalf of Uhlfelder, whom he praised for “the highest of moral character.”
The well-respected Judge Middlebrooks took the unusual step of revealing he’s “dismayed” by the Bar case. He described Uhlfelder, one of his first law clerks 28 years ago, as “a person of conviction and courage.”
At the Sept. 10 sanctions hearing Bar counsel Hinson acted as if she knew that nothing she did would affect the outcome. She called no witnesses. She seemed unfamiliar with the case’s history – Lewis had to remind her he filed an affidavit defending Uhlfelder in the 1st DCA.
And she conflated the first and second Uhlfelder Bar cases when she asked witnesses if they knew the 1st DCA considered his appeal “frivolous.” That was central to the first Bar proceeding, the one the Bar’s Board of Governors wanted to resolve by letting Uhlfelder off the hook.
WHO KNEW WHAT WHEN
The ongoing, Supreme Court-inspired Bar case is all about why no one told the 1st DCA that Mattox and Kitchen, Uhlfelder’s pro bono trial lawyers, weren’t sticking around for the appeal.
At the April trial Mattox and Kitchen testified they didn’t work on the appeal, they told Uhlfelder they wanted out and they expected him to tell the 1st DCA. They were copied on court pleadings and other documents bearing their names, but Mattox testified she ignored the documents because that’s her modus operandi once she leaves a case.
Uhlfelder testified all three lawyers collaborated on the appeal offline; evidence showed that Kitchen served as their team cheerleader. He and Mattox decided to abandon the appeal, Uhlfelder said, only after the 1st DCA judges set out to punish the lawyers who filed Uhlfelder v. DeSantis.
Mattox and Kitchen easily could have taken responsibility for leaving him without counsel by filing their own motions to withdraw, according to Uhlfelder. “They were my attorneys, I expected them to represent me,” he said.
Still, the Bar spun his routine actions to keep the appeal going into willful ethics violations. Uhlfelder displayed “dishonesty, fraud, deceit or misrepresentation” that was “prejudicial to the administration of justice,” according to the Bar.
Referee Parker agreed completely in his Aug. 8 interim report. Uhlfelder’s “repetitive misrepresentations to the appellate court were prejudicial to the administration of justice because [Uhlfelder’s] failure to disclose the truth or correct the record perpetuated false statements … throughout the appeal,” Parker wrote.
At last week’s hearing Hinson tried in vain to cut off Lewis and Middlebrooks when they critiqued her case. She schooled the two senior jurists about not “relitigating” the case. Parker sustained her objection to Middlebrooks “lobbying” for Uhlfelder.
Neither witness seemed intimidated, though Middlebrooks was more vocally indignant.
“I’m not trying to lobby, I just don’t understand the Bar’s position in this case,” he said.
Uhlfelder was correct in counting on Mattox and Kitchen to represent him in the appeal and his failure to notify the court about their change in status was justified, Middlebrooks said. “I expect a lawyer to continue until I grant permission to leave.”
“I’m happy to talk about why I don’t think it’s a violation [of ethics rules], but I’ll understand if you don’t want me to,” Middlebrooks told Parker. He didn’t respond.
HARD TIMES MAY CONTINUE
Tozian called seven witnesses who talked about Uhfelder’s professional background and personal character. They described a dedicated advocate and family man who’s had to struggle with divorce and his father Steve’s suicide less than three years ago.
Steve Uhlfelder, 76, a prominent lawyer and lobbyist, died of a self-inflicted gunshot wound on Feb. 11, 2023. He left his son a note that said, “Don’t let the Bar & courts get you down.”
“There was no closure, it was very difficult,” said Andy Leinoff, Daniel Uhlfelder’s Miami divorce lawyer.
During the divorce proceedings, “He was as candid as he could be, even if it wasn’t to his advantage,” Leinoff said.
One more witness, former American Bar Association president Martha Barnett, submitted a letter to Parker. The now-retired Tallahassee legal legend addressed the elephant in the courtroom: Uhlfelder’s controversial stint as the Grim Reaper.
“His performative protests got attention – good and bad – but they also spoke to his moral character, his courage to speak out, and his efforts to pursue excellence in public service,” she wrote.
The Bar reportedly wants Uhlfelder’s law license suspended for 91 days. That’s significant because he would have to seek reinstatement, which means another Bar investigation and possible opposition to his practicing law again.
After five years under a cloud of potential career loss, Uhlfelder, who is 53 and has two teenage children, would have to endure an open-ended period of more of the same.
The hearing’s most poignant testimony came from Lewis in a non sequitur. While listing what he considers Uhlfelder’s finest traits, he blurted out: “This is destroying a young man.”
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