By Noreen Marcus, FloridaBulldog.org
A former Florida Bar president has accused the Bar of “cheating” in a politically noxious lawyer grievance case that has baffled and disturbed a federal judge, a former justice and a bunch of old-pro attorneys.
Jacksonville criminal defense lawyer Henry “Hank” Coxe, an ex-Bar president who recently joined Daniel Uhlfelder’s defense team, argued that his ethics case should be dismissed because of the Bar’s own misconduct. Uhlfelder’s 2020 lawsuit questioning Gov. Ron DeSantis’s pandemic policy ignited the grievance that’s still grinding along with no apparent end in sight.
Taylor County Circuit Judge Gregory Parker, the ethics case referee, seemed overwhelmed at a Zoom hearing last Friday where Coxe represented Uhlfelder. Parker expressed gratitude when lawyers offered to help him sort out the remaining issues.
“I don’t know in my career that there’s ever been [such] a split in very wide canyons,” Parker said haltingly after hearing their arguments. A lawyer with a general practice in Perry for 25 years followed by 16 years as a judge, Parker has said he plans to retire next year.
Parker called the attorneys for both sides “extremely articulate” and “sincere,” adding, “That’s what makes it so difficult … one of the things.”
The Bar wants Uhlfelder’s law license suspended for 91 days, meaning he’d have to be readmitted before he could resume his practice. Uhlfelder’s side wants the same mild sanction for him — attending ethics classes — that his ex-lawyers got for a communications failure they all owned jointly.
Parker has urged the parties to settle. On Friday he tried again gingerly, explaining, “I don’t want to step on anybody’s toes.”
The case against Uhlfelder, a Santa Rosa Beach real estate and family lawyer, won’t be wrapping up anytime soon. Parker had been working with a December deadline to send his sentencing recommendation to the Florida Supreme Court for a final decision.
But on Friday, after a hearing marked by tense exchanges between Bar counsel Shanee Hinson and Uhlfelder’s lawyers, Parker said he’ll get to the sentencing as soon as his trial schedule permits, all but guaranteeing the proceedings will drag on into 2026.
He did not rule on the issue argued Friday: Uhlfelder’s motion to dismiss the case based on Bar prosecutors’ misconduct.
The Uhlfelder Bar case will eventually make its second trip to a Florida Supreme Court dominated by DeSantis appointees. The first time, the justices rejected leniency and directed a grievance committee to scrutinize Uhlfelder’s behavior again.
FAILURES TO COMMUNICATE
What Coxe called “cheating” is the Bar’s failure to reveal its separate prosecutions of the two main witnesses against Uhlfelder, his former lawyers, before they testified against him at his April Bar trial. So his trial lawyer couldn’t question their credibility by suggesting they were spinning their testimony to curry favor with the Bar.
As a general rule, prosecutors must give the defense what is called “exculpatory” evidence, meaning anything they have that might benefit the defendant. By withholding pertinent information about their star witnesses, the Bar was violating this basic concept of criminal law, according to Uhlfelder’s lawyers.
Robert Kerrigan, a Pensacola trial lawyer who observed Friday’s hearing, said, “I wonder how many Florida lawyers know the Florida Bar will knowingly conceal potentially exculpatory evidence from a lawyer they are prosecuting. Not many, would be my guess.”
Parker ruled for the Bar in August, finding that Uhlfelder “perpetuated false statements” when he didn’t tell an appeals court his co-counsels, Tallahassee lawyers Marie Mattox and Gautier Kitchen, had dropped out of the DeSantis pandemic case. They didn’t tell the court, either.
At the time, Mattox and Kitchen seemed determined to prove they’d abandoned Uhlfelder before the court could discipline their entire team for a “frivolous” appeal. A panel of judges had warned it was about to inflict harsh punishment on Uhlfelder, Mattox and Kitchen because they had dared to challenge the governor’s COVID-19 policies.
Coxe said Uhlfelder was “appalled” to learn belatedly that the Bar had been prosecuting Mattox and Kitchen while presenting them at his trial as highly regarded lawyers and believable witnesses.
And so, it seems, was Coxe, who volunteered with three more criminal defense lawyers to help Uhlfelder in his struggle to continue practicing law. The Bar president for the 2006-2007 term, Coxe is a respected leader among Florida attorneys.
“I’m concerned that the Bar thinks they’re so special in this world, they don’t have to disclose anything to anybody,” he said during Friday’s hearing.
THE BAR’S TWISTY DEFENSE
Hinson vehemently defended the Bar with contradictory – “alternative” in legalese – arguments, saying the Bar was prohibited from disclosing anything about confidential cases against Maddox and Kitchen.
And even if there were no prohibition, “it would never occur to me that anybody would think this was exculpatory,” she said.
Uhlfelder could have dug out those facts on his own. “The Bar wasn’t his attorney,” Hinson said.
And even if Uhlfelder had tried to use the Maddox and Kitchen prosecutions to attack their credibility, “it wouldn’t alter the facts of this case,” Hinson said. The lawyers were subpoenaed and “they told the truth.”
Because the Bar isn’t part of the state government, it has no duty to hand over exculpatory information, Hinson asserted.
In fact, however, the Bar is an arm of the Supreme Court, one of the three branches of Florida government. That status carries with it a duty to produce all information that could be helpful to the defense, Uhlfelder’s lawyers noted in court documents.
“The Government’s special and sole access to information, by virtue of its authority and position as the prosecuting entity, creates an obligation to disclose exculpatory information to the defending party to ensure minimal due process and fairness,” they wrote.
DELAYING ‘THE INEVITABLE’?
Hinson lectured Uhlfelder’s lawyers, saying they knew better than to “manufacture exculpatory evidence where none exists” and try to shift blame from Uhlfelder to the Bar in order to “delay the inevitable.”
Those statements drew sharp responses from lawyers including Coxe. “Don’t say what I know,” he retorted at one point. Hinson backed off and apologized.
Uhlfelder’s lawyer Scott Tozian, once a Bar counsel like Hinson, disputed her description of the Bar as anything other than a part of state government.
“I was a government lawyer when I worked for the Florida Bar,” he said.
Seeming to retreat to safer ground, Hinson rehashed the main ethics case as if to remind Parker he’s already found Uhlfelder guilty of violating multiple Bar rules.
Only time will tell if that was a good idea. At a hearing in September, Miami U.S. District Judge Donald Middlebrooks and R. Fred Lewis, a retired Florida Supreme Court justice, ripped apart the Bar’s case against Uhlfelder.
Middlebrooks said Uhlfelder had no motive to mislead the appeals court by withholding the information that Mattox and Kitchen had left the DeSantis case.
Both he and Lewis said they couldn’t follow the Bar’s arguments for punishing Uhlfelder.
“I’m dismayed, frankly, by this case,” Middlebrooks said.
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