Florida Bar conjures up dubious ethics complaint against DeSantis critic Daniel Uhlfelder

By Noreen Marcus, FloridaBulldog.org

The Florida Bar is scrapping standard operating procedure in its long-running ethics case against a lawyer who defied and embarrassed Gov. Ron DeSantis with a national audience during the run-up to his presidential bid.

On orders from the Florida Supreme Court, the Bar took the extraordinary step of investigating Daniel Uhlfelder twice for the same allegedly unethical conduct when he attacked the governor’s COVID-19 policy in 2020.

The justices rejected a call from the Florida Bar Board of Governors to have Uhlfelder take an ethics refresher course, ending a first round of disciplinary torment and launching a second.

“I have not seen that occur ever,” said retired Justice R. Fred Lewis, who spent 20 years on the state’s highest court. “It’s like they started all over again.”

In the second round, a Bar lawyer worked with the Uhlfelder grievance committee to find ethics rules he may have broken. The Bar wound up citing Uhlfelder for this: He failed to tell the First District Court of Appeal his two co-counsels had quit.

In fact, under court rules those Tallahassee lawyers, William Gautier Kitchen and Marie Mattox, were personally responsible for formally asking the court to let them withdraw from Uhlfelder’s case against DeSantis. This wasn’t a task they could delegate to Uhlfelder or anyone else.

Kitchen referred Florida Bulldog to his and Mattox’s Bar lawyer, Richard Bush of Tallahassee. But Bush did not respond to a Florida Bulldog detailed email request for comment.

TRY AND TRY AGAIN

The new Uhlfelder charges have nothing to do with the initial claim that had the Board of Governors calling for an easy, non-punitive resolution. Instead of agreeing as usual, however, the Supreme Court sent the case back to the same grievance committee for a second try.

In 2020 Uhlfelder embarrassed the governor by dressing up as “the Grim Reaper” and striding across beaches DeSantis refused to close to the public. National media took note while Florida’s COVID-19 death toll spiked.

Uhlfelder also started a political action committee in a bid to defeat DeSantis in 2022 and campaigned unsuccessfully to be the Democratic alternative to Attorney General Ashley Moody. She and the governor both won reelection.

This month Bar Counsel Olivia Paiva Klein all but admitted conducting a fishing expedition to net new charges against Uhlfelder, according to a hearing transcript. Because the grievance committee didn’t see the original charge as “the major issue,” she said, “they came out with other rules and discussions about what was going on in the cases.”

Apparently all they could find was a technical foul – plus two lawyers, Kitchen and Mattox, whose own conduct in the DeSantis case also was under scrutiny by Bar regulators.

DUE PROCESS?

In the second round of Uhlfelder disciplinary proceedings, the Bar initially delayed even telling him which ethics rules he’d allegedly flouted. It wasn’t until after the grievance committee found probable cause to charge him with rule violations that he knew how much trouble he was in – again.

At the April 2 hearing, Klein promised to hand over evidence to Uhlfelder’s lawyer; the case is set for a final referee hearing on June 21. The Supreme Court determines the punishment.

“You would have expected more [due] process than Mr. Uhlfelder was given,” former Justice Lewis told Florida Bulldog after he read the hearing transcript.

In September 2021 Lewis submitted an affidavit defending Uhlfelder against the original Bar charge: He pursued meritless litigation that targeted the governor for political reasons.

“The Florida Bar should not discipline a critic of the Governor … for calling into question the decisions the Governor has made and the action or inaction about COVID-19,” Lewis wrote. Eventually that charge fizzled out.

Because grievance committee proceedings are closed, Lewis said, he’s less familiar with the facts behind the current charges. He cautioned against jumping to conclusions based on scant information, saying, “That will have to come out in the wash as the evidence unfolds.”

Florida Bar President Scott Westheimer did not respond to a Florida Bulldog request for comment emailed to Bar spokesperson Jennifer Krell Davis.

UPDATE #38 & COUNTING

Uhlfelder, a real estate lawyer in Santa Rosa Beach, has been living under the cloud of a Bar complaint since Feb. 5, 2021. Someday the Supreme Court may decide to punish his behavior by censuring, suspending or disbarring him.

In 2020 Uhlfelder sued to force DeSantis to change his pandemic policy, lost his case in the trial court and went to the First District Court of Appeal in Tallahassee. Although the trial judge dismissed the lawsuit, he said Uhlfelder was reacting “in good faith” to a public health crisis.

But his “frivolous” appeal so infuriated a three-judge 1st DCA panel that it referred him to the Bar for discipline. A few days later, when Uhlfelder implied in an interview that the judges favored DeSantis, the panel ordered a state prosecutor to charge him with criminal contempt.

That case remains unresolved. The 1st DCA keeps its Uhlfelder docket open for updates; they’re at Number 38.

Such contempt orders are rare. And this happened only in Uhlfelder’s case: After the Bar’s Board of Governors recommended an ethics refresher course instead of punishment, the Supreme Court ordered the grievance committee do-over.

DEFENDING THE UNKNOWN

Similar to grand juries, Bar grievance committees operate in darkness. And just as prosecutors guide grand juries to indictments, Bar counsels coach grievance committees to reach decisions about charging lawyers with ethics violations.

The April 2 Bar hearing transcript provides a peek at Part Two of the Uhlfelder grievance committee saga. At the hearing the referee, Taylor County Circuit Court Judge Gregory Parker, considered Uhlfelder’s motion to dismiss his case based on due process grounds.

His Tampa lawyer, Scott Tozian, argued that he couldn’t defend against the new allegations because he didn’t know what they were until the grievance committee voted to charge Uhlfelder with rule violations. At that point they entered the public domain.

“We had no earthly idea what they’re considering,” Tozian said, adding that the Bar didn’t share evidence or give them an opportunity to respond.

The Bar’s purported reason for secrecy dovetails conveniently with the new Uhlfelder charges. There have been three Bar cases, naming Uhlfelder, Kitchen and Mattox. Klein said she couldn’t share information with Uhlfelder from the other two cases because, as Bar counsel, she has a duty of confidentiality to Kitchen and Mattox.

At the end of the April 2 hearing, Parker denied Uhlfelder’s motion to dismiss but gave him permission to refile it later.

THE BAR VS. UHLFELDER

Here’s what the Bar complaint says happened when the DeSantis case got to the 1st DCA:

On Nov. 13, 2020 a three-judge panel (Judges Adam Tanenbaum. Bradley Thomas and Susan Kelsey) denied the appeal and started sanction proceedings against Uhlfelder and his co-counsels in the trial court, Kitchen and Mattox, for filing a “frivolous” action.

Later that day Mattox emailed Uhlfelder: “Daniel – I’m concerned about the court’s order that was recently entered. I have not been a part of this appeal at all and did not know that my name was on the notice of appeal when it was filed. I just looked at all of the documents and I am very concerned about this. I need something filed with the Court acknowledging that I am not responsible for the appeal or anything else that may come from the appeal. Can you please confirm that you will take care of this? Thank you.” Mattox said she was speaking for Kitchen as well.

According to Mattox, Uhlfelder agreed to deliver her message to the court but failed to follow through. As a result, the 1st DCA also referred her and Kitchen for Bar investigation.

The Uhlfelder Bar complaint alleges he violated rules against misconduct, “dishonesty, fraud, deceit or misrepresentation” and “conduct prejudicial to the administration of justice;” he broke another rule requiring “candor toward the tribunal.”

The complaint doesn’t mention Florida Rule of Appellate Procedure 9.440(d)(3): a lawyer who wants to step out of a case “must first seek leave of court to withdraw. The attorney must file a motion for that purpose stating the reasons for withdrawal and the client’s address. A copy of the motion must be served on the client and adverse parties.”

Florida Bulldog wanted to ask Kitchen and Mattox why they didn’t follow that procedure, especially when Mattox expressed deep concern about being misidentified on the appeal as Uhlfelder’s co-counsel. But Kitchen said their lawyer, Bush, would answer questions, and Bush was silent.

‘GRASPING AT STRAWS’

The Bar opened files on Kitchen and Mattox but decided not to file charges against them. The Supreme Court finally agreed they should be allowed to attend an ethics refresher course, accepting the same recommendation the court rejected for Uhlfelder.

Florida Bulldog could not determine whether Kitchen and Mattox made a deal for leniency in exchange for testifying against Uhlfelder.

Justice Lewis noted it’s wrong to put lawyers’ names on pleadings when they aren’t involved in a case, but “these were people involved in the case.

“If it was a misunderstanding about who was where, that’s such an easily remedied situation with just one phone call,” he said.

Lewis underscored Bar Counsel Klein’s statement at the April 2 hearing about searching for rule violations with the Uhlfelder grievance committee.

“That’s the kind of thing that happens when somebody’s just struggling and grasping at straws,” Lewis said. “It’s almost an admission of the weakness of the position. They couldn’t support what the court told them to look at so they had to go find something else.

“I can appreciate that the Bar counsel feels pressure because of the Court’s order, but that should not change what they do in this kind of problem area,” he said. “They should not be a ‘yes’ person: ‘You told me to find something so I’ll find something wrong.’ “