The Florida Bar v. Alexa Martinez

Supreme Court of Florida
____________

No. SC2023-0421
____________

THE FLORIDA BAR,
Complainant,

vs.

ALEXA MARTINEZ,
Respondent.

June 19, 2025

PER CURIAM.

We have for review a referee’s report recommending that

Respondent, Alexa Martinez, be found guilty of professional

misconduct in violation of the Rules Regulating The Florida Bar and

that she be suspended from the practice of law for 10 days and

publicly reprimanded. Both The Florida Bar and Martinez have

petitioned for review, challenging the referee’s findings of fact,

recommendations as to guilt, and the recommended discipline.1

1. We have jurisdiction. See art. V, § 15, Fla. Const.
For the reasons discussed below, we approve in part and

disapprove in part the referee’s recommendations as to guilt and

findings in mitigation and aggravation. We also disapprove the

referee’s recommended discipline and instead suspend Martinez

from the practice of law for 90 days.

BACKGROUND

Martinez was a member of the Bar for just two months when

she was hired in February 2017 as an associate by Silverberg Brito,

PLLC (Silverberg). Silverberg terminated her employment less than

four months later.

After her employment was terminated, Martinez retained

possession of a USB drive belonging to Silverberg. Silverberg

demanded Martinez return the USB drive. She stated she would

return it, but she did not do so initially. After multiple requests by

Silverberg, Martinez returned the USB drive, but the drive was

empty. The referee found that Martinez’s deletion of the contents of

the USB drive constituted violations of rules 4-3.4 (Fairness to

Opposing Party and Counsel), 4-8.4(c) (“A lawyer shall not engage in

conduct involving dishonesty, fraud, deceit, or

misrepresentation . . . .”), and 4-8.4(d) (“A lawyer shall not engage

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in conduct in connection with the practice of law that is prejudicial

to the administration of justice . . . .”).

Also, after her employment was terminated, Martinez

attempted to negotiate with Silverberg about the language for a joint

letter to be sent to Silverberg’s clients on whose cases she worked.

The letter would have informed the clients of Martinez’s departure

from Silverberg, and it would have advised the clients that they

could proceed with Martinez as their attorney, stay with Silverberg,

or hire new counsel. These negotiations broke down, and Martinez

acted unilaterally to inform the firm’s clients of her departure from

Silverberg and their options going forward.

Silverberg claimed that when unilaterally contacting the

clients, Martinez disparaged and defamed Silverberg and its

attorneys to the firm’s clients and otherwise interfered with the

relationships between the clients and the firm. Silverberg also

claimed that Martinez unilaterally filed notices of appearance in

cases involving Silverberg’s clients without first notifying Silverberg

and without presenting proof that the clients chose to have her

represent them.

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Regarding Martinez contacting the clients, the referee

recommends finding that Martinez engaged in minor misconduct in

violation of rule 3-4.3 (Misconduct and Minor Misconduct).

Additionally, the referee recommends finding Martinez guilty of

violating rule 4-8.4(d) because in at least one case, Martinez filed a

notice without proper client authorization and unreasonably

delayed her withdrawal for about one month.

Because Martinez delayed returning the USB drive and began

contacting and filing notices of appearance in Silverberg’s clients’

cases, Silverberg sought injunctive and civil relief against Martinez.

In that civil case, Martinez filed several notices of unavailability,

which the Bar argues were improper. However, the referee did not

recommend finding Martinez guilty of any rule violations for this

because he did not believe Martinez’s notices of unavailability

constituted dishonest conduct warranting discipline given her lack

of experience at the time and the confusion surrounding the proper

uses of notices of unavailability.

ANALYSIS

Our review of a referee’s findings of fact is limited, and if the

findings of fact are supported by competent, substantial evidence in

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the record, we will not reweigh the evidence and substitute our

judgment for that of the referee. Fla. Bar v. Alters, 260 So. 3d 72,

79 (Fla. 2018) (citing Fla. Bar v. Frederick, 756 So. 2d 79, 86 (Fla.

2000)).

As for a referee’s recommendations as to guilt, “the referee’s

factual findings must be sufficient under the applicable rules to

support the recommendations.” Fla. Bar v. Patterson, 257 So. 3d

56, 61 (Fla. 2018) (citing Fla. Bar v. Shoureas, 913 So. 2d 554,

557-58 (Fla. 2005)). Ultimately, the burden is on the party

challenging the referee’s findings of fact and recommendations as to

guilt to demonstrate “that there is no evidence in the record to

support those findings or that the record evidence clearly

contradicts the conclusions.” Fla. Bar v. Germain, 957 So. 2d 613,

620 (Fla. 2007).

The USB Drive

The referee found that Martinez violated rules 4-3.4, 4-8.4(c),

and 4-8.4(d) by returning an empty USB drive to Silverberg.

Martinez challenges the referee’s factual findings regarding this

issue, whereas the Bar asks the Court to uphold the referee’s

findings of fact and recommendations as to guilt.

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Rule 4-3.4(a) states that a lawyer shall not “unlawfully

obstruct another party’s access to evidence or otherwise unlawfully

alter, destroy, or conceal a document or other material that the

lawyer knows or reasonably should know is relevant to a pending or

a reasonably foreseeable proceeding.” There is competent,

substantial evidence in the record that the contents of the USB

drive were subject to litigation between Martinez and the firm, with

the firm believing Martinez saved confidential firm files to the drive.

Martinez knew the contents of the USB drive were in question and

relevant to the litigation between her and the firm. Yet, she delayed

returning the drive and deleted its contents before finally returning

it. Thus, we approve the referee’s recommendation that Martinez be

found guilty of violating rule 4-3.4(a).

We, likewise, approve the referee’s recommendation that

Martinez be found guilty of violating rules 4-8.4(c) and 4-8.4(d).

Rule 4-8.4(c) prohibits a lawyer from “engag[ing] in conduct

involving dishonesty, fraud, deceit, or misrepresentation.” The

record supports a conclusion that Martinez acted dishonestly and

deceptively when she delayed returning the USB drive and deleted

its contents before finally returning it. And rule 4-8.4(d) prohibits a

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lawyer from “engag[ing] in conduct in connection with the practice

of law that is prejudicial to the administration of justice.”

Martinez’s act in deleting the contents on the drive was

prejudicial to the administration of justice because the contents of

the drive were relevant to Silverberg’s civil case against Martinez.

Accordingly, we approve the referee’s findings of fact and find

Martinez guilty of violating rules 4-3.4, 4-8.4(c), and 4-8.4(d) for

delaying the return of the USB drive and deleting its contents.

Contact with Clients

The referee recommends that Martinez be found guilty of

minor misconduct in violation of rule 3-4.3 for contacting

Silverberg’s clients after her employment was terminated. 2 The Bar

argues that the referee should have also found Martinez guilty of

violating rule 4-5.8 (Procedures for Lawyers Leaving Law Firms and

Dissolution of Law Firms) based on her unilateral contact with

Silverberg’s clients after her termination. We disagree and, instead,

2. Neither party challenges the referee’s recommendation that
Martinez be found guilty of violating rule 3-4.3, and we approve the
referee’s recommendation regarding this rule violation without
further comment.

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approve the referee’s recommendation to not find Martinez guilty of

violating rule 4-5.8.

Rule 4-5.8(c)(1) states that for lawyers leaving law firms:

Absent a specific agreement otherwise, a lawyer who is
leaving a law firm may not unilaterally contact those
clients of the law firm for purposes of notifying them
about the anticipated departure or to solicit
representation of the clients unless the lawyer has
approached an authorized representative of the law firm
and attempted to negotiate a joint communication to the
clients concerning the lawyer leaving the law firm and
bona fide negotiations have been unsuccessful.

The record evidence supports the referee’s finding that

Martinez negotiated with Silverberg to come to an agreement on a

joint letter to send to the clients. After Martinez’s departure from

Silverberg, she and Silverberg’s attorney, Christopher Spuches,

exchanged numerous emails regarding the substance of a proposed

joint letter. Martinez ultimately told Spuches that she did not agree

to send the letter out if her requested modifications were not made.

Thus, she believed that they had come to an impasse, and she

contacted the clients herself. Based on this exchange, we find that

the referee’s finding that Martinez attempted to negotiate with the

firm to draft a joint letter is supported by competent, substantial

evidence. This finding supports the referee’s recommendation that

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Martinez be found not guilty of violating rule 4-5.8 for contacting

the clients.

Additionally, the Bar argues that Martinez improperly

contacted the clients because she did not have direct contact with

them or provide significant legal services to them while she worked

at Silverberg. However, we note that these are guidelines provided

in the comment to the rule as to which clients should be contacted,

but they do not prohibit contacting clients for which these

thresholds are not met. Nevertheless, relying on Martinez’s billable

hours, the referee found that she provided significant legal services

for the clients she contacted. Accordingly, we approve the referee’s

recommendation that Martinez be found not guilty of violating rule

4-5.8 for contacting the clients.

Misrepresentations Made to Clients

The referee recommended Martinez be found not guilty of

violating rule 4-4.1 (Truthfulness in Statements to Others) based on

the Bar’s claim that she made misleading and disparaging

comments about Silverberg to Silverberg’s clients when she

contacted them after her termination. We approve the referee’s

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recommendation because such conduct, even if proven before the

referee, would not constitute a violation of rule 4-4.1.

Rule 4-4.1 provides:

In the course of representing a client a lawyer shall not
knowingly:
(a) make a false statement of material fact or law to a
third person; or
(b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited
by rule 4-1.6.

(Emphasis added.) Even if the Bar had sufficiently established that

Martinez made misrepresentations, it was not to a third party while

representing a client. Accordingly, we approve the referee’s

recommendation that Martinez be found not guilty of violating rule

4-4.1.

Notices of Appearance

The referee recommends that Martinez be found guilty of

violating rule 4-8.4(d) based on her filing notices of appearance.

However, the Bar argues that she should also be found guilty of

violating rules 4-3.1 (Meritorious Claims and Contentions), 4-3.3

(Candor Toward the Tribunal), and 4-8.4(c) as well. We agree with

the Bar, approving the referee’s recommendation of guilt for

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violating rule 4-8.4(d) but also finding Martinez guilty of violating

rules 4-3.1, 4-3.3, and 4-8.4(c).

Rule 4-3.1 provides that a lawyer may “not bring or defend a

proceeding, or assert or controvert an issue therein, unless there is

a basis in law and fact for doing so that is not frivolous.” Martinez

made baseless assertions in filing her notices of appearance in the

Morelus, Jacques, and Gershfeld cases. There is competent,

substantial evidence to support the referee’s finding that Martinez

did not have authorization to file her notice of appearance in the

Morelus case. Gisel Brito, a partner for the firm, testified that

Morelus contacted her after Martinez had contacted him. Morelus

told Brito that he did not sign anything and wanted Silverberg to

continue to represent him. Despite this, Martinez sent a letter to

Silverberg stating that she was retained to represent Morelus and

demanding Silverberg not contact Morelus and cease and desist

from performing any other work on his case. Thereafter, Morelus

indicated in writing his wishes to stay with Silverberg. Yet, it took

more than two weeks for Martinez to withdraw from his case.

As to the Jacques case, Martinez sought consent from the

Jacqueses’ son to represent his parents. However, because

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Martinez had no basis to rely on the son’s consent as authorizing

her representation of his parents, the referee’s finding that Martinez

was authorized to file a notice of appearance in the Jacques case

has no legal basis. Additionally, while there were three plaintiffs in

the Gershfeld case, because Martinez only claimed she represented

Gershfeld, her appearance in the case did not terminate Silverberg’s

involvement. Thus, Martinez’s statement to Spuches that she

represented all three clients and demand that Silverberg withdraw

were not justified. Accordingly, the record evidence clearly

contradicts the referee’s recommendation that Martinez be found

not guilty of violating rule 4-3.1.

Next, rule 4-3.3 provides that a lawyer shall not knowingly

“make a false statement of fact or law to a tribunal or fail to correct

a false statement of material fact or law previously made to the

tribunal by the lawyer.” In filing her notices of appearance in the

Morelus and Jacques cases, Martinez misrepresented to the court

that she was authorized to represent the clients. Additionally, in

the Perez case, although Martinez initially received authorization

from Perez, it was quickly revoked the next day. Yet, she did not

withdraw from his case until nearly one month later when

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Silverberg demanded her withdrawal. Accordingly, the record

evidence clearly contradicts the referee’s recommendation that

Martinez be found not guilty of violating rule 4-3.3.

Additionally, rule 4-8.4(c) prohibits a lawyer from “engag[ing]

in conduct involving dishonesty, fraud, deceit, or

misrepresentation.” Martinez misrepresented in multiple cases that

she represented the clients and had authority to file notices of

appearance on their behalf. Based on these misrepresentations, the

record evidence clearly contradicts the referee’s recommendation

that Martinez be found not guilty of violating rule 4-8.4(c).

Rule 4-8.4(d) prohibits a lawyer from “engag[ing] in conduct in

connection with the practice of law that is prejudicial to the

administration of justice.” After filing her notice of appearance in

the Gershfeld case, Martinez attempted to undo a settlement offer

that was sent by Silverberg before Martinez filed the notice of

appearance and tried to assert her claim to attorney’s fees from a

settlement. This resulted in the filing of a motion to enforce the

settlement agreement by the insurance company and the disputed

funds being held in the court’s registry, causing substantial delay

before the court entered an order awarding the entire amount of

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attorney’s fees to Silverberg. Thus, because Martinez’s conduct was

prejudicial to the administration of justice, we approve the referee’s

recommendation that Martinez be found guilty of violating rule

4-8.4(d).

Accordingly, we uphold the referee’s recommendation that

Martinez be found guilty of violating rule 4-8.4(d) but disapprove

the referee’s recommendation of finding no guilt for violating rules

4-3.1, 4-3.3, and 4-8.4(c), instead finding Martinez guilty of

violating these rules.

Notices of Unavailability

The Bar contends that Martinez violated rules 4-3.4(c),

4-8.4(c), and 4-8.4(d) by filing multiple notices of unavailability and

trying to avoid being deposed in her civil case against Silverberg.

We agree and find Martinez guilty of violating rules 4-3.4(c),

4-8.4(c), and 4-8.4(d).

Rule 4-3.4(c) states that a lawyer must not “knowingly disobey

an obligation under the rules of a tribunal except for an open

refusal based on an assertion that no valid obligation exists.” Rule

4-8.4(c) provides that “[a] lawyer shall not engage in conduct

involving dishonesty, fraud, deceit, or misrepresentation.” And rule

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4-8.4(d) states that “[a] lawyer shall not engage in conduct in

connection with the practice of law that is prejudicial to the

administration of justice.”

Here, Spuches, counsel for Silverberg, testified that Martinez

filed multiple notices of unavailability, which he claimed were

untruthful and led to scheduling issues. The referee considered

Martinez’s testimony and concluded that he did not believe she

understood when a notice of unavailability should be properly used.

Thus, he concluded although her filing the notices was not well

thought through, it did not amount to a rule violation.

But the referee’s recommendation on this point overlooked the

circuit court’s order granting Silverberg’s motion to compel

Martinez’s deposition and sanctions. On December 19, 2017, the

court granted both motions, ordered Martinez to appear for

deposition on January 5, 2018, and reserved ruling on the amount

of attorney’s fees and costs to be entered against her. Martinez

appeared for the deposition but did not produce a single document

identified in the notice. After some questioning, her counsel

terminated the deposition early. Counsel for Silverberg filed a

second motion to compel Martinez’s deposition. Martinez agreed to

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be deposed on May 26, 2018, but then filed a motion for protective

order nine days prior to her deposition. This prompted a third

motion to compel her deposition, which was granted by the court,

and Silverberg was again awarded its reasonable attorney’s fees and

costs in bringing the motion. Martinez failed to appear at the

deposition.

The record evidence clearly contradicts the referee’s

recommendation that Martinez be found not guilty of violating rules

4-3.4(c), 4-8.4(c), and 4-8.4(d). Accordingly, we disapprove the

referee’s recommendation and conclude that Martinez violated rules

4-3.4(c), 4-8.4(c), and 4-8.4(d).

DISCIPLINE

We now turn to the referee’s recommendation to impose a

10-day suspension and public reprimand as a sanction for

Martinez’s misconduct. “Prior to making a recommendation as to

discipline, referees must consider the Standards for Imposing

Lawyer Sanctions, which are subject to aggravating and mitigating

circumstances, and this Court’s existing case law.” Fla. Bar v.

Strems, 357 So. 3d 77, 90 (Fla. 2022). Our review of a referee’s

recommended discipline is broader than that afforded to the

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referee’s findings of fact because, ultimately, it is our responsibility

to order the appropriate sanction. See Patterson, 257 So. 3d at 64;

Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art.

V, § 15, Fla. Const.

Standards

In looking at the Standards, we find support for suspension as

the presumptive sanction in this case. Under Standard 5.1(b)

(Failure to Maintain Personal Integrity), “[s]uspension is appropriate

when a lawyer knowingly engages in . . . conduct involving

dishonesty, fraud, deceit, or misrepresentation that seriously

adversely reflects on the lawyer’s fitness to practice.” Standard

6.1(b) (False Statements, Fraud, and Misrepresentation) provides

that “[s]uspension is appropriate when a lawyer knows that false

statements or documents are being submitted to the court or that

material information is improperly being withheld and takes no

remedial action.” Also, Standard 6.2(b) (Abuse of the Legal Process)

states that “[s]uspension is appropriate when a lawyer knowingly

violates a court order or rule and causes injury or potential injury

to a client or a party or causes interference or potential interference

with a legal proceeding.” Last, we look to Standard 7.1(b)

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(Deceptive Conduct or Statements and Unreasonable or Improper

Fees), which states that “[s]uspension 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.”

Here, Martinez knowingly engaged in dishonest conduct that

seriously adversely reflects on her ability to practice law when she

delayed returning the USB drive to the firm and then ultimately

returned it empty. Moreover, Martinez misrepresented to the court

that she was the clients’ attorney in cases where she had no basis

to make the representation, and she delayed correcting the

misrepresentation by withdrawing from the case. Additionally, she

knowingly violated her obligation to appear for her court-ordered

deposition, causing a delay in the proceedings and affecting the

opposing party. Based on these actions, the Standards support the

imposition of a suspension.

Aggravating and Mitigating Factors

We next consider the referee’s findings as to the applicable

aggravating and mitigating circumstances. “[A] referee’s findings of

mitigation and aggravation carry a presumption of correctness and

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will be upheld unless clearly erroneous or without support in the

record.” Germain, 957 So. 2d at 621.

As to aggravation, the referee found four factors under

Standard 3.2 (Aggravation): (1) dishonest or selfish motive; (2)

pattern of misconduct; (3) submission of false evidence, false

statements, or other deceptive practices during the disciplinary

process; and (4) refusal to acknowledge the wrongful nature of the

conduct. The Bar argues that the referee should have also found

multiple offenses as an aggravating factor. And Martinez argues

that submission of false evidence or statements should not have

been found as an aggravating factor. We do not find error in either

of the referee’s findings regarding these factors.

Next, the referee found five mitigating factors under Standard

3.3 (Mitigation): (1) absence of a prior disciplinary record; (2)

personal or emotional problems; (3) inexperience in the practice of

law; (4) unreasonable delay in the disciplinary proceedings; and (5)

imposition of other penalties or sanctions. The Bar argues that the

referee should not have found personal or emotional problems or

unreasonable delay in the disciplinary proceedings as mitigating

factors. We find error only in the referee’s finding of unreasonable

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delay as a mitigating factor. That factor applies only when “the

respondent did not substantially contribute to the delay.” Fla. Std.

Imposing Law. Sancs. 3.3(b)(9). The Bar delayed initiating

disciplinary action against Martinez until the litigation between her

and Silverberg concluded. However, Martinez was responsible for

dragging out the civil litigation, which in turn delayed this

disciplinary process. Therefore, because Martinez contributed to

the delay, we find that the referee erred in finding unreasonable

delay as a mitigating factor.

Case Law

Finally, in determining the appropriate sanction, we look to

prior cases for guidance.

In prior cases involving similar misconduct, we have imposed

suspensions in a range of lengths. For instance, in Florida Bar v.

Forrester, 818 So. 2d 477 (Fla. 2002), we suspended a lawyer for 60

days who intentionally misrepresented the location of an exhibit

during a deposition. We suspended a lawyer for 91 days in Florida

Bar v. James, 329 So. 3d 108 (Fla. 2021), after the lawyer engaged

in a pattern of dishonest conduct by instructing a deponent on how

to answer questions, lying to opposing counsel when asked if the

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two were texting during a deposition, and falsely stating that he was

only texting his daughter. And in Florida Bar v. Marcellus, 249 So.

3d 538 (Fla. 2018), we suspended a lawyer for 18 months for his

failure to comply with a court order and to respond to discovery

requests despite orders compelling responses. In considering these

cases, along with the mitigation found in this case, specifically

Martinez’s inexperience in the practice of law as well as personal

and emotional problems, we have determined that a 90-day

suspension is appropriate in this case.

CONCLUSION

Accordingly, Martinez is hereby suspended from the practice of

law for 90 days. Martinez’s suspension will be effective 30 days

from the filing of this opinion so that she can close out her practice

and protect the interests of existing clients. If Martinez notifies this

Court in writing that she is no longer practicing and does not need

the 30 days to protect existing clients, this Court will enter an order

making the suspension effective immediately. Martinez shall fully

comply with rule 3-5.1(h) and, if applicable, rule 3-6.1. Further,

Martinez shall accept no new business from the date this opinion is

filed until she is reinstated.

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Judgment is entered for The Florida Bar, 651 East Jefferson

Street, Tallahassee, Florida 32399-2300, for recovery of costs from

Alexa Martinez in the amount of $7,465.00, 3 for which sum let

execution issue.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THIS SUSPENSION.

Original Proceeding – The Florida Bar

Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff
Counsel, and Mark Lugo Mason, Bar Counsel, The Florida Bar,
Tallahassee, Florida,

for Complainant

Alexa Martinez, Miami, Florida,

for Respondent

3. See Fla. Bar v. Rotstein, 835 So. 2d 241, 247 (Fla. 2002)
(concluding that awarding transcript costs was permissible).

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