The scales of justice. Photo: Lightspring/Shutterstock.com

The Florida Supreme Court disregarded the findings of a court-appointed referee in an attorney-discipline case Thursday.

It instead ruled that Miami criminal defense attorney Jonathan Stephen Schwartz should be disciplined for allegedly altering two defense exhibits and showing them at a pretrial deposition.

The referee, Miami-Dade Circuit Judge Celeste Muir, had recommended no discipline for Schwartz, whom she said had not violated any bar rules because he hadn't acted with the intent to deceive or defraud.

But the justices, ruling per curiam, saw the case differently.

"Here, the referee improperly focused upon Schwartz's asserted motive, which was to provide constitutionally effective assistance of counsel, apparently by attempting to undermine the victim's identification of Schwartz's client," the opinion said.

Instead, the justices said Muir should have focused on "the undisputed fact that Schwartz knowingly and deliberately created the defense exhibits by altering photocopies of the police lineups, and showing them to the victim at the deposition."

Schwartz, admitted to practice in 1986, came under Florida Bar scrutiny after representing a defendant in a Miami-Dade Circuit felony criminal case, State v. Woodson, in 2015. His client was charged and later convicted of armed robbery, according to online case files.

The exhibits were two photocopies of black-and-white police photo lineups, signed by the victim and a police officer, and featured a circle around the head of the defendant. But Schwartz allegedly altered one of those photos by switching his client's image with a different suspect's photo, and altered another by imposing the other suspect's hairstyle onto his client's image.

"Although the images in the exhibits were altered in this manner, they nonetheless retained the circle around subject number five and the signatures of the victim and police officer below the photographs," the opinion said.

The bar claimed that was a violation of Florida Bar Rules 3-4.3 and 8.4(c), which govern misconduct and misrepresentation.

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View the lineup photos on pages six and seven of the bar's complaint

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Referee Miami-Dade Circuit Judge Celeste H. Muir. Photo: J. Albert Diaz/ALM.

In Muir's view, Schwartz "made a messy (but clearly not deceitful) effort to comply with State v. Williams" using the photographic lineups, with the aim of testing the accuracy of the victim's statement.

But the high court labeled that conclusion " unsupported by the record and patently erroneous," remarking that Schwartz's exhibits were "deceptive on their face," and went against precedent governing defense discovery involving lineup photos.

"By their very nature, they conveyed the false message that the substituted photograph was the photograph that had been previously identified by the victim," the opinion said.

The opinion further criticized the referee for focusing on how Schwartz had only black and white photos provided by the state to go from, but overlooking the signatures and circles around the suspect.

Schwartz's attorney, Benedict P. Kuehne, said his client was humbled that the court recognized his conduct wasn't intended to deceive the witness.

"Jonathan Schwartz is disappointed by the Florida Supreme Court's reversal of referee Circuit Judge Muir's fact-specific, detailed findings that his efforts to provide a constitutionally effective defense to his client was consistent with the Rules of Professional Conduct. Jonathan takes the Supreme Court's ruling seriously, and will endeavor to comply with the court's instructions in this case of first impression," Kuehne said. "As the Supreme Court acknowledged, his 'absence of a dishonest or selfish motive' is a mitigating factor. Jonathan intends to work diligently in his defense representations to demonstrate his commitment to the highest standards of the legal profession."

The justices also disagreed with a finding that each party should pay its own costs in the case.

They ordered the case assigned to a new referee.

Read the ruling:

 

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