The Florida Bar v. Derek Vashon James

Supreme Court of Florida
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No. SC20-128
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THE FLORIDA BAR,
Complainant,

vs.

DEREK VASHON JAMES,
Respondent.

November 18, 2021

PER CURIAM.

We have for review a referee’s report recommending that

Respondent, Derek Vashon James, be found guilty of professional

misconduct in violation of the Rules Regulating the Florida Bar (Bar

Rules), and that he be suspended from the practice of law for thirty

days as a sanction for his misconduct. The Florida Bar (Bar) filed a

notice of intent to seek review of the referee’s report, challenging the

referee’s recommendation that James be found not guilty of

violating Bar Rule 4-8.4(d), as well as the referee’s recommended

sanction. We have jurisdiction. See art. V, § 15, Fla. Const. For
the reasons discussed below, we approve the referee’s findings of

fact and recommendations as to guilt, except for the

recommendation that James be found not guilty of violating Bar

Rule 4-8.4(d), which we disapprove, and find James guilty of

violating the rule. We also disapprove the referee’s recommended

discipline, and instead, we suspend James from the practice of law

for ninety-one days.

BACKGROUND

On January 28, 2020, the Bar filed a complaint against

James, alleging that he engaged in misconduct by coaching a

witness during a deposition in a contested worker’s compensation

matter and making misrepresentations regarding his misconduct.

The Bar’s complaint was referred to a referee, who held a hearing on

both guilt and discipline and submitted a report with the following

findings and recommendations.

James represented the employer in a worker’s compensation

case. On July 31, 2018, Renee Gray, the adjuster who worked for

the employer, was deposed via telephone. Gray, James, and the

claimant’s counsel, Toni Villaverde, attended the deposition via

telephone, from different locations. Because the deposition was not
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conducted by video, the court reporter refused to swear Gray in as a

witness, making her testimony unsworn. While the deposition was

in progress and Villaverde was questioning Gray, James sent text

messages to Gray regarding her testimony. The texts included

coaching and specific directions on how to respond to Villaverde’s

questions.

The following messages were exchanged between Gray and

James during Villaverde’s questioning of Gray:

10:19 a.m. (James): You don’t

10:20 a.m. (James): As to settlement checks expiration

10:20 a.m. (James): You remember the deposition but not
discussing checks

10:20 a.m. (James): yes

10:21 a.m. (James): Just review notes from 02/20/2018
forward

10:23 a.m. (James): Be careful just say

10:23 a.m. (James): You may not see today

10:25 a.m. (James): Take a break in 15 minutes?

10:25 a.m. (Gray): Up to you.

Villaverde could hear typing sounds and asked Gray and

James if they were engaging in texting during the deposition.
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James denied texting Gray and stated he was only receiving a text

from his daughter. Villaverde asked James to stop texting and put

his phone away, and James agreed. James misrepresented to

Villaverde that he had concluded the text messaging when in fact

he had not. After a break, and after Villaverde resumed questioning

Gray, James inadvertently sent the following text messages

intended for Gray to Villaverde:

11:53 a.m. (James): Just say it anyway

11:53 a.m. (James): Just say 03/28

11:54 a.m. (James): In addition to the 03/28/2018 email
containing the signed release I show . . .

11:55 a.m. (James): Don’t give an absolute answer

11:55 a.m. (James): All I can see at this time but I cannot rule
out existence

11:55 a.m. (James): It’s a trap

11:56 a.m. (James): Then say that is my best answer at this
time.

Once Villaverde noticed the texts, she stopped the deposition.

She later filed a motion for production and in-camera inspection of

all the texts sent during the deposition. After the Judge of

Compensation Claims granted the motion, James produced two

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pages of text messages but never produced any texts involving his

daughter, despite being ordered to do so by the judge, and despite

his assurances to Villaverde during the deposition that the typing

sounds she heard involved a text received from his daughter. The

judge found that the text messages were sent during the deposition,

not during a break in the questioning, and that they were not

protected by attorney-client privilege, contrary to James’s claims.

The parties conducted a second deposition of the witness on

February 19, 2019.

During the disciplinary proceedings, James testified that he

was unable to retrieve the texts from his daughter due to his own

technological limitations. He explained that worker’s compensation

proceedings are informal, and he felt compelled to aid his witness

during the deposition because Villaverde was constantly talking

over Gray’s answers or interrupting with speaking objections, and

he felt Gray was being mistreated. The referee found that James’s

texts to Gray while she was being questioned, telling her what to

say, how to answer, to avoid providing certain information, to

remember a deposition but not discuss certain checks, and to not

give an absolute answer were dishonest.
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Furthermore, the record shows that after the deposition

ended, and in the days following the deposition, James tried to

convince Villaverde that he sent the texts to Gray during the break,

not during the questioning. During a hearing on Villaverde’s

motion for production and in-camera inspection, James failed to be

transparent and forthright with the judge regarding his texts to

Gray. He made it appear that he only texted his wife and daughter

during the deposition and that he sent the text messages to Gray

during the break in the deposition.

The referee recommends that James be found guilty of

violating Bar Rules: 3-4.3 (Misconduct and Minor Misconduct) and

4-3.4(a) (“A lawyer must not . . . unlawfully obstruct another party’s

access to evidence or otherwise unlawfully alter, destroy, or conceal

a document . . . .”). However, the referee recommends that James

be found not guilty of violating rule 4-8.4(d) (“A lawyer shall not . . .

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

prejudicial to the administration of justice . . . .”) as well as others.

The referee found the following aggravating factors were present:

(1) dishonest or selfish motive; (2) refusal to acknowledge the

wrongful nature of the conduct; and (3) substantial experience in
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the practice of law. In mitigation, the referee found (1) absence of a

prior disciplinary record; (2) full and free disclosure to the Bar or

cooperative attitude toward the proceedings; and (3) good character

or reputation.

The referee recommends that James be suspended from the

practice of law for thirty days and that he be assessed the Bar’s

costs. The Bar seeks review of the referee’s recommendation that

James be found not guilty of violating Bar Rule 4-8.4(d), as well as

the recommended sanction.

ANALYSIS

A. The Referee’s Recommendation as to Guilt.

To begin, the referee’s findings of fact are neither in dispute

nor lacking in evidentiary support. We therefore approve them

without further comment. The Bar challenges the referee’s

recommendation of no guilt as to Bar Rule 4-8.4(d), contending that

the referee’s own findings, as well as the record, support a contrary

conclusion. The Court must consider whether the referee’s

recommendation that James be found not guilty of violating Bar

Rule 4-8.4(d) is supported. This Court has repeatedly stated that

the referee’s factual findings must be sufficient under the applicable
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rules to support the recommendations regarding guilt. See Fla. Bar

v. Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005); Fla. Bar v. Spear,

887 So. 2d 1242, 1245 (Fla. 2004). The party challenging the

referee’s finding of fact and recommendations as to guilt has the

burden 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).

Bar Rule 4-8.4(d) states, “A lawyer shall not . . . engage in

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

the administration of justice . . . .” R. Regulating Fla. Bar 4-8.4(d).

This Court has determined that dishonesty in connection with the

practice of law is prejudicial to the administration of justice. See

Fla. Bar v. Feinberg, 760 So. 2d 933, 938 (Fla. 2000). Here, the

referee specifically found that James’s response that he was just

responding to his daughter when in fact texts were being sent to

Gray was misleading and a matter contrary to honesty. He also

found that James misrepresented to Villaverde that he had

concluded the text messaging when in fact he had not. The referee

further found that James’s texts to Gray while she was being
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questioned, telling her what to say, how to answer, to avoid

providing certain information, to remember a deposition but not

discuss certain checks, and to not give an absolute answer were

dishonest. James’s dishonesty is clear from the record, and we find

him guilty of violating Bar Rule 4-8.4(d).

B. Discipline

We now turn to the referee’s recommended discipline, a thirty-

day suspension. In reviewing a referee’s recommended discipline,

this Court’s scope of review is broader than that afforded to the

referee’s findings of fact because, ultimately, it is this Court’s

responsibility to order the appropriate sanction. See Fla. Bar v.

Picon, 205 So. 3d 759, 765 (Fla. 2016); Fla. Bar v. Anderson, 538

So. 2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla. Const. At the

same time, this Court will not second-guess the referee’s

recommended discipline as long as it has a reasonable basis in

existing case law and the Florida Standards for Imposing Lawyer

Sanctions. See Picon, 205 So. 3d at 765; Fla. Bar v. Temmer, 753

So. 2d 555, 558 (Fla. 1999).

The referee recommended a thirty-day suspension, finding

that James’s conduct was not as egregious as in other cases
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because he assisted Gray with dates that were already given. We

agree with the referee that a suspension is the appropriate sanction

in this case. See Fla. Stds. Imposing Law. Sancs. 7.1(b)

(“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.”). James engaged in conduct aimed at defeating the

opposing party’s lawful attempts to obtain evidence, undermining

the adversarial process, and as a result, the trial court’s

intervention was required. He then made misrepresentations to

cover up his misconduct. However, we disagree with the referee’s

conclusion that James’s conduct was not sufficiently egregious to

warrant a more severe sanction.

In Florida Bar v. Nicnick, 963 So. 2d 219 (Fla. 2007), a lawyer

with a prior ten-day suspension for misconduct concealed a child

support settlement agreement from an opposing counsel before

presenting it to opposing counsel’s client. Nicnick continued to

conceal the document from opposing counsel after it was returned

to him, purportedly executed by opposing counsel’s client. Id. at

221. Nicnick alleged that he felt compelled to investigate the
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authenticity of the document before turning it over to opposing

counsel and believed opposing counsel was aware of the settlement

agreement. Id. at 223. We found that Nicnick’s failure to share the

settlement agreement with opposing counsel was deceptive and

suspended him for ninety-one days. Id. at 225.

Here, as in Nicnick, James was deceptive when he secretly sent

the messages to Gray and then denied doing so when Villaverde

questioned them about the texts. He continued his deception after

the deposition, claiming he sent the texts during a break in the

deposition. While James does not have a disciplinary history like

Nicnick did, we find James’s behavior is even more egregious.

James obstructed opposing counsel’s access to evidence when

he secretly coached Gray while she was being questioned, telling

her how to answer Villaverde’s questions and directing her to avoid

providing certain information. This conduct continued even after

he assured Villaverde that he would stop texting during the

deposition. Thereafter, he repeatedly misrepresented to Villaverde

that he did not send text messages to Gray during the deposition.

Particularly egregious was his failure to be forthright with the Judge

of Compensation Claims about sending the text messages to Gray
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and about when he sent them. We find that James’s behavior

warrants a ninety-one-day suspension.

CONCLUSION

Therefore, we disapprove the referee’s recommended sanction

and instead suspend James from the practice of law for ninety-one

days. The suspension will be effective thirty days from the filing of

this opinion so that James can close out his practice and protect

the interests of existing clients. If James 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 suspension effective immediately. James shall fully

comply with Rule Regulating the Florida Bar 3-5.1(h). James shall

also fully comply with Rule Regulating the Florida Bar 3-6.1, if

applicable. In addition, James shall accept no new business from

the date this order is filed until he is reinstated. James is further

directed to comply with all other terms and conditions of the report.

Judgment is entered for The Florida Bar, 651 East Jefferson

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

Derek Vashon James in the amount of $2,851.80, for which sum let

execution issue.
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It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, MUÑIZ, and
COURIEL, JJ., concur.
LAWSON, J., concurs in part and dissents in part with an opinion,
in which GROSSHANS, J., concurs.

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

LAWSON, J., concurring in part and dissenting in part.

I agree with the majority’s conclusion that the referee’s own

findings, as well as the record, support a determination that

James’s conduct violated Rule Regulating the Florida Bar 4-8.4(d)

(“A lawyer shall not: . . . engage in conduct in connection with the

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

.”), majority op. at 7-9, and concur in that part of the majority

opinion. However, in light of the referee’s mitigation findings and

ability to personally assess both James’s demeanor as well as the

credibility of his character evidence, I would follow the referee’s

recommendation to the extent of imposing a nonrehabilitative

suspension.

We have previously stated that “the Court will generally not

second-guess the referee’s recommended discipline, as long as it

has a reasonable basis in existing case law and the Florida
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Standards for Imposing Lawyer Sanctions.” Fla. Bar v. Picon, 205

So. 3d 759, 765 (Fla. 2016) (citing Fla. Bar v. Temmer, 753 So. 2d

555, 558 (Fla. 1999)). Although I recognize the very serious nature

of James’s misconduct, I would not second-guess the referee’s

recommendation to impose a nonrehabilitative suspension here.

The referee found that James demonstrated cooperation by

voluntarily producing text messages between himself and the

witness beyond that which was required by the order of the Judge

of Compensation Claims. The referee further noted that James’s

character witnesses, two attorneys with many years of experience

practicing in the same field as James, testified to his well-

established reputation for being honest and fair within the worker’s

compensation community. This character testimony suggests that

James’s misconduct here is an isolated incident.

When reviewing James’s conduct, the referee considered case

law where the Court imposed a ninety-one-day rehabilitative

suspension and noted that the conduct in those cases was more

egregious than James’s conduct. One such case was Florida Bar v.

Berthiaume, 78 So. 3d 503 (Fla. 2011). There, this Court held that

an attorney’s abuse of the subpoena power to conduct a personal
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investigation demonstrated the utmost disrespect for the courts and

warranted a ninety-one-day rehabilitative suspension. Id. at 510-

11. Another case cited by the referee was Florida Bar v. Nicnick,

963 So. 2d 219 (Fla. 2007), which I, unlike the majority, see

majority op. at 11, agree supports the imposition of a

nonrehabilitative suspension. The attorney in Nicnick not only

failed to disclose a settlement agreement to opposing counsel but

also had a prior ten-day suspension. 963 So. 2d at 222.

In contrast to the facts in Berthiaume and Nicnick that

supported imposing a rehabilitative suspension, in James’s case,

the referee found that James’s cooperation, full and free disclosure,

lack of a prior record, and character testimony from two witnesses

were mitigating factors sufficient to justify a nonrehabilitative

sanction. The referee’s recommendation was largely based on

credibility determinations and an assessment of James’s demeanor

that the referee was in the best position to make, and the referee’s

recommendation is consistent with our precedent.

Accordingly, I respectfully dissent from that portion of the

opinion that imposes a ninety-one-day rehabilitative suspension.

GROSSHANS, J., concurs.
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Original Proceeding – The Florida Bar

Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff
Counsel, The Florida Bar, Tallahassee, Florida, and Daniel James
Quinn, Bar Counsel, The Florida Bar, Orlando, Florida; and M.
Hope Keating and Barry Richard of Greenberg Traurig, P.A.,
Tallahassee, Florida,

for Complainant

Barry Rigby of Law Offices of Barry Rigby, P.A., Winter Park,
Florida,

for Respondent

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