Supreme Court of Florida
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No. SC17-1514
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THE FLORIDA BAR,
Complainant,
vs.
ANTHONY WAYNE BLACKBURN,
Respondent.
[May 24, 2018]
PER CURIAM.
We have for review a “Report of Referee Accepting Consent Judgment,”
recommending that Respondent, Anthony Wayne Blackburn, be found guilty of
professional misconduct in violation of the Rules Regulating the Florida Bar (Bar
Rules) and suspended from the practice of law for a period of eighteen months.
We have jurisdiction. See art. V, § 15, Fla. Const. As more fully explained below,
after consideration of the referee’s report, the guilty plea and consent judgment, the
response to the Court’s order to show cause why the referee’s recommended
discipline should not be disapproved and a more severe sanction, up to and
including disbarment, be imposed, and the Bar’s reply, we disapprove the proposed
discipline and disbar Respondent.
FACTS
On August 10, 2017, The Florida Bar filed a complaint against Respondent,
who was admitted to the Bar on September 24, 2005. The complaint was referred
to a referee, and the referee accepted the “Conditional Guilty Plea for Consent
Judgment” in a report filed with the Court on October 20, 2017, and in an amended
report filed on November 1, 2017.1
Based on the parties’ consent judgment, the referee recommended that
Respondent be found guilty of violating Bar Rules 3-4.4 (Misconduct), 4-8.4(a) (a
lawyer shall not violate or attempt to violate the Rules of Professional Conduct), 4-
8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects), and 4-
8.4(i) (a lawyer shall not engage in sexual conduct with a client or a representative
of a client that exploits or adversely affects the interests of the client or the lawyer-
client relationship). As provided by the consent judgment, the referee also
recommended an eighteen-month suspension, that Respondent complete The
Florida Bar’s Ethics School as a condition precedent to reinstatement, that
1. The amended report was filed to correct the date of admission and to add
language recommending that the suspension begin in January or February.
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Respondent contact Florida Lawyers Assistance, Inc. (FLA, Inc.) to schedule an
evaluation and to abide by all recommendations made by FLA, Inc., and that he be
assessed costs in the amount of $1,688.51.
The facts underlying the disciplinary proceedings are as follows. On
September 16, 2016, Respondent was arrested and charged with battery pursuant to
section 784.041(1)(a), with solicitation of prostitution pursuant to section
796.07(2)(f), and with exposure of sexual organs pursuant to section 800.03,
Florida Statutes (2016), in Duval County, Florida. According to the Arrest
Warrant Affidavit, on September 3, 2016, Respondent visited two female clients
that he was representing in criminal matters while they were incarcerated at the
Pretrial Detention Facility. In adjacent rooms at the detention facility, Respondent
and the women engaged in sexual activities initiated by Respondent. Respondent
solicited the sexual conduct with one client by depositing money into her personal
bank account and with the other client by promising free or discounted legal
services designed to achieve a reduced jail sentence. On May 25, 2017,
Respondent entered into a plea agreement and pled no contest to misdemeanor
battery. Respondent’s adjudication was withheld, and he was sentenced to one day
in jail with credit for time served and unsupervised probation and ordered to pay
costs. Respondent voluntarily sought treatment from FLA, Inc. On January 2,
2018, the Court issued an order directing Respondent to show cause why the
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referee’s recommended sanction should not be disapproved and a more severe
sanction, up to and including disbarment, be imposed.
ANALYSIS
In reviewing a referee’s recommendation as to discipline, the Court’s scope
of review is broader than that afforded to the referee’s findings of fact, because it is
ultimately the Court’s responsibility to determine the appropriate discipline. Fla.
Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989). However, the Court will
generally approve the referee’s recommendation if it has a reasonable basis in
existing case law and the Florida Standards for Imposing Lawyer Sanctions. See
Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999). Furthermore, the Court has
moved toward imposing harsher sanctions, see Florida Bar v. Herman, 8 So. 3d
1100, 1108 (Fla. 2009), and has stated that it “will strictly enforce the rule against
lawyers engaging in sexual conduct with a client that exploits the lawyer-client
relationship.” Fla. Bar v. Bryant, 813 So. 2d 38, 44 (Fla. 2002); see Fla. Bar v.
Samaha, 557 So. 2d 1349, 1350 (Fla. 1990) (“Even the slightest hint of sexual
coercion or intimidation directed at a client must be avoided at all costs.”). Finally,
the approval or disapproval of the consent judgment is a matter for the Court’s
discretion. See R. Regulating Fla. Bar 3-7.9(c) (“Acceptance of any proposed
consent judgment shall be conditioned on final approval by the Supreme Court of
Florida . . . .”).
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In determining the sanction to recommend, the referee considered the
Florida Standards for Imposing Lawyer Sanctions that support imposition of a
suspension, including 5.12 (suspension is appropriate when a lawyer knowingly
engages in criminal conduct which is not included within Standard 5.11 and that
seriously adversely reflects on the lawyer’s fitness to practice), and 7.2 (suspension
is appropriate when a lawyer knowingly engages in conduct that is a violation of a
duty owed as a professional and causes injury or potential injury to a client, the
public, or the legal system). The referee found three aggravating factors, including
Standards 9.22(a) (prior disciplinary offenses),2 9.22(d) (multiple offenses), and
9.22(h) (vulnerability of victim), and two mitigating factors: 9.32(c) (personal or
emotional problems), and 9.32(l) (remorse). In addition, the referee relied upon
Florida Bar v. Boone, 31 So. 3d 178 (Fla. 2010) (table),3 Florida Bar v. Bryant,
2. Previously, in case number SC14-1429, Respondent was suspended for
thirty days. According to the consent judgment in that case, Respondent had
violated Bar Rules 3-4.3 (Misconduct and Minor Misconduct), 4-1.1
(Competence), 4-4.4 (Respect for Rights of Third Persons), and 4-8.4(a) (An
Attorney Shall Not Violate/Attempt to Violate the Rules of Professional Conduct).
3. The referee, as well as Respondent and the Bar, cite to “Florida Bar v.
Boone, SC10-194 (2011)” or “Florida Bar v. Boone, SC10-194, 67 So. 3d 200,”
although the case intended appears to be Florida Bar v. Boone, 31 So. 3d 178 (Fla.
2010), No. SC10-194 (table), in which Boone received a one-year suspension,
rather than the reinstatement effective immediately in Florida Bar v. Boone, 67 So.
3d 200 (Fla. 2011), No. SC11-623 (table).
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813 So. 2d 38 (Fla. 2002), and Florida Bar v. Samaha, 557 So. 2d 1349 (Fla.
1990).
While the Court agrees that Standard 5.12 is applicable to the facts of this
case, we conclude that Standard 7.1 (Disbarment is appropriate when a lawyer
intentionally engages in conduct that is a violation of a duty owed as a
professional), rather than Standard 7.2, also applies. We also find that the
aggravating factors (prior disciplinary offenses, multiple offenses, and
vulnerability of victim) are substantial.
With regard to existing case law, we conclude that disbarment, rather than a
suspension, is reasonably supported. First, the referee’s reliance upon the three
cases is misplaced, for the following reasons: Boone does not have precedential
value because the case was uncontested and the opinion did not include any
substance or facts; Bryant and Samaha were decided sixteen and twenty-eight
years ago, respectively; and the published opinions are distinguishable from
Respondent’s conduct. For example, in Bryant, a one-year suspension was
imposed where the attorney entered into a sex-for-fee arrangement with a client
upon the client’s suggestion, and the sexual relations did not occur while the client
was imprisoned. In Samaha, a one-year suspension was imposed where the
attorney, under the guise of preparing for a personal injury action, touched his
client on her back and thighs without her approval, and photographed her while she
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was partially nude. In this case, Respondent propositioned two clients and
engaged in sexual relations while the women were both incarcerated.
Instead, the following case law supports Respondent’s disbarment. In
Florida Bar v. McHenry, 605 So. 2d 459 (Fla. 1992), the attorney met with a client
in his office and under the guise of conducting a physical examination, touched her
neck, arms, rib cage, and back. He then sat at his desk and made motions with his
arm and body that were consistent with the act of masturbation. In a separate
meeting with a different client, the attorney, while in his office, masturbated in
front of his client while speaking with her. The Court discussed that his act of
touching the first client constituted battery and his act of masturbating in front of
the second client constituted a criminal offense. Here, Respondent was charged
with battery, solicitation of prostitution, and exposure of sexual organs. In
addition, we distinguished the facts in McHenry from Samaha, on the basis that
McHenry committed professional violations involving two separate clients and had
previously received two public reprimands. Further, the Court concluded that
[h]is behavior toward two of his clients in the two separate incidents
at issue in this case demonstrates severe moral turpitude, and his
character and conduct are wholly inconsistent with approved
professional standards. Under no circumstances should clients be
exposed to the type of conduct exhibited by McHenry. It breeds
contempt and distrust of lawyers to permit a lawyer involved in such
conduct to remain a lawyer.
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McHenry, 605 So. 2d at 461 (citation omitted). Accordingly, in McHenry, we
rejected the referee’s report recommending that the attorney be suspended for two
years and disbarred the attorney.
The Court used the facts and reasoning of McHenry in its decision to impose
disbarment in Florida Bar v. Scott, 810 So. 2d 893, 900 (Fla. 2002), where the
attorney was disbarred for exposing and fondling himself in front of his client and
pulling his client down and ejaculating on her face and blouse. Id. In addition, he
called his client a derogatory name and made sexual proposals to her in two
subsequent meetings. Id. The Court, in rejecting the referee’s recommendation of
an eighteen-month suspension and instead disbarring the attorney, found that the
attorney’s conduct was more severe than that in McHenry. Id. Similarly, in
Florida Bar v. Senton, 882 So. 2d 997, 1003 (Fla. 2004), the Court approved the
referee’s recommended discipline of disbarment where the attorney had twice
coerced a female client to have sexual relations, on the basis that she felt like she
had no choice and relying in part upon Scott.
In summary, evidenced by this Court’s case law, under no circumstances
should an attorney representing a client expose that client to unwanted sexual
relations of any kind. Respondent’s conduct, which exploited his clients’
circumstances for his own personal benefit, “breeds contempt and distrust of
lawyers,” “demonstrates severe moral turpitude,” and such actions “are wholly
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inconsistent with approved professional standards.” McHenry, 605 So. 2d at 461.
Based upon the foregoing, Respondent is disbarred from the practice of law.
CONCLUSION
Accordingly, the referee’s report pertaining to the recommendation of an
eighteen-month suspension is disapproved, and Respondent is hereby disbarred.
The disbarment will be effective thirty days from the release of this opinion so that
Anthony Wayne Blackburn can close out his practice and protect the interests of
existing clients. If Respondent notifies this Court in writing that he is no longer
practicing and does not need the thirty days to protect existing clients, this Court
will enter an order making the disbarment effective immediately. Respondent shall
fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Respondent
shall accept no new business from the date this opinion is released until he is
reinstated.
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Anthony Wayne
Blackburn in the amount of $1,688.51, for which sum let execution issue.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS DISBARMENT.
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Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, Carlos Alberto Leon, Bar Counsel,
Tallahassee, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar,
Sunrise, Florida,
for Complainant
Dale Carson, Law Office of Dale Carson, Jacksonville, Florida,
for Respondent
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