Florida Bar hid prosecutions of witnesses it was using to go after lawyer targeted by DeSantis

By Noreen Marcus FloridaBulldog.org

A lawyer facing discipline for alleged misdeeds five years ago has accused Florida Bar prosecutors of hiding news that might have helped exonerate him at a pivotal moment in his politically charged case.

A motion Daniel Uhlfelder filed Friday says he recently learned that at the time of his trial on misconduct charges in April, the Bar was prosecuting its two star witnesses against him for separate ethics violations. He has asked the Bar’s referee, the finder of fact, to dismiss the case for prosecutorial misconduct.

“I am very disappointed if the facts as alleged [by Uhlfelder] are true,” retired Florida

Supreme Court Justice R. Fred Lewis told Florida Bulldog. “Although the grievance process is not a criminal proceeding, I believe our courts have described it as quasi-criminal and subject to high scrutiny, as it should be.”

“In my mind, this conduct, if true, cannot be permitted,” Lewis said. “We must be able to trust the Florida Bar to act in the highest regard in this type of process.”

The Bar kept quiet about its ongoing ethics cases against its witnesses against Uhlfelder, Tallahassee lawyers Marie Mattox and Gautier Kitchen, because the revelation could have damaged their credibility, the motion filed by Uhlfelder’s lawyer Scott Tozian says.

Yet during the trial, the Bar presented witnesses Mattox and Kitchen as “two well-regarded attorneys,” Tozian wrote.

Further, the motion lays out a timeline that indicates the Bar violated its standard procedure by delaying publication of the pending charges against Mattox and Kitchen until after Uhlfelder’s Bar trial ended.

Mattox and Kitchen represented Uhlfelder in a 2020 court challenge to Gov. Ron DeSantis’s COVID-19 policies. How and when they parted ways is the crux of the Bar’s complaint against Uhlfelder.

On Aug. 8 a Bar referee issued a report that says Uhlfelder misrepresented Mattox’s and Kitchen’s continued involvement in the DeSantis case to an appeals court that had signaled it was about to punish all three lawyers. Mattox and Kitchen convinced the referee that they never participated in the appeal, that Uhlfelder knew this and that he had failed to inform the court, the First District Court of Appeal (1st DCA).

The Bar charged Mattox and Kitchen with their own communication lapses in connection with the 1st DCA appeal, but the two were able to avoid serious consequences by testifying against Uhlfelder. They were ordered to attend ethics classes.

In contrast, the findings from Uhlfelder’s Bar proceeding could support more severe punishment by the Supreme Court, the final arbiter of professional discipline for Florida lawyers.

DESANTIS CALLS FOR SANCTION

On Monday Florida Bar spokesperson Jennifer Krell Davis told Florida Bulldog the Bar will prepare a response to the motion to dismiss but she would not commit to a time frame for releasing it.

Uhlfelder asked the Bar referee in his case, Taylor County Circuit Judge Gregory Parker, for a hearing on his motion.

Parker has a Friday deadline to send his punishment recommendation to the Supreme Court. The Bar wants a career-damaging 91-day license suspension; Parker urged the parties to settle on an agreed sanction, but they failed to do so.

The Supreme Court, composed almost entirely of DeSantis appointees, is expected to go hard on Uhlfelder because the governor’s animus seems to be a motivating force for his relentless prosecution.

It began during COVID-19 when Uhlfelder drew the attention of national media by donning a Grim Reaper costume and appearing on public beaches to protest DeSantis’s insistence on keeping them open.

Then the Santa Rosa Beach lawyer incurred serious pushback from the governor when he sued DeSantis to close the beaches. After a trial judge dismissed the case in 2020, Uhlfelder brought it to the 1st DCA.

The Tallahassee-based court rejected Uhlfelder’s appeal. Then DeSantis’s lawyers encouraged the judges to take the extra step of punishing the lawyers who’d filed it.

“The many hours spent by this court and the attorneys of the Executive Office of the Governor on this appeal could have been spent on innumerable other pressing matters related to the health, welfare, and safety of Floridians,” DeSantis’s lawyers wrote to the 1st DCA. “Appellant [Uhlfelder] knew or should have known that filing this appeal was frivolous. Appellant and his counsel should be sanctioned accordingly.”

CASES VS. MATTOX & KITCHEN

The 1st DCA told the Bar to investigate Uhlfelder’s “frivolous” complaint. That became the basis for a first grievance proceeding. It was heading toward resolution when the Florida Bar Board of Governors recommended the same light discipline for Uhlfelder that Mattox and Kitchen received.

But the Supreme Court stepped in and bigfooted the case back to the grievance committee for another investigation in February 2023. The result was a second case that the Bar built around Mattox’s and Kitchen’s interactions with Uhlfelder when the 1st DCA judges indicated they would sanction all three lawyers.

“I’m dismayed, frankly, by this case,” West Palm Beach U.S. District Judge Donald Middlebrooks testified at Uhlfelder’s Sept.10 sanctions hearing. He and Lewis, well-known Tallahassee lawyer Barry Richard and retired 1st DCA judge Robert Benton all disputed key details of the Bar’s narrative.

In the separate Mattox and Kitchen cases that the Bar appears to have kept under wraps, Mattox was punished and Kitchen’s alleged ethics violations are pending.

On Oct. 1 the Supreme Court published a public reprimand for Mattox stemming from a wrongful termination case. The ethics rule she was found to have violated requires adequate communication with clients.

A bankruptcy court awarded Mattox’s client $4,375.93; for eight months the client couldn’t reach her, according to a Bar press release. “Finally the client executed a settlement statement and received a check for $3,375.93.” The release doesn’t say what happened to the remaining $1,000 from the award.

Kitchen’s Bar grievance is ongoing. A federal bankruptcy judge referred him to the Bar for investigation. Like Mattox, he’s accused of a communications lapse with a client in an unrelated matter. Also, “Mr. Kitchen’s disciplinary prosecution charges lack of diligence, and failure to appropriately terminate attorney-client relationships,” Uhlfelder’s motion to dismiss says.

Neither Mattox nor Kitchen responded to emailed requests for comment from Florida Bulldog.