Florida Bar finally puts DeSantis critic on trial, but strategy backfires

By Noreen Marcus, FloridaBulldog.org

TALLAHASSEE — Lawyer Daniel Uhlfelder finally got his Florida Bar ethics trial, more than four years after judges savaged his reputation for criticizing Gov. Ron DeSantis’s COVID-19 policies in a lawsuit.

Uhlfelder’s April 8-9 trial in the Leon County Courthouse also served as a tutorial on how some Florida lawyers are allowed to treat their clients and each other. It isn’t pretty.

Uhlfelder’s accusers, onetime allies who apparently turned on him to save themselves, delivered these lessons: Lawyers the Bar likes may use misleading language because they’re merely “puffing,” not lying.

Also, favored lawyers may leave to their underlings reading and disposing of important court documents; they may outsource writing crucial pleadings to free up time for family obligations.

And as they protect, above all else, their own careers, lawyers may succeed by betraying a colleague they once helped for free, a fellow warrior for a shared cause — or at least that’s what Tallahassee lawyers Marie Mattox and Gautier Kitchen told Uhlfelder.

Their joint mission was to defeat a deadly virus; the lawsuit they filed against the DeSantis administration was meant to force it to choose science over politics. It’s fair to say Team Uhlfelder lost big.

The Bar’s current case against Uhlfelder, a court-ordered do-over, boils down to this: He let the First District Court of Appeal (1st DCA) assume his trial partners Mattox and Kitchen were sticking with him for the DeSantis case appeal.

Except the two lawyers didn’t participate in the appeal and when the court started trashing it as “frivolous,” they insisted that Uhlfelder extricate them from an enormous mess. He failed to comply, so according to the Florida Bar, he lied to the court by omission.

For this the Santa Rosa Beach real estate and family lawyer faces punishment ranging from a mild rebuke to a costly suspension to a life-changing loss of his license to practice law.

SECOND TIME’S THE CHARM?

In contrast, Mattox and Kitchen, who could have corrected their status with the 1st DCA themselves, agreed to what’s called a “diversion” from discipline.

If they attended an ethics refresher course and stayed out of trouble for a year, the matter would remain off-the-record. Apparently, they did — the line in their Florida Bar profiles about their 10-year disciplinary history reads “None.”

At first, the Florida Bar Board of Governors wanted diversion for Uhlfelder. A Bar grievance committee rejected the idea that serious charges could result from the filing of a “frivolous” appeal.

The Florida Supreme Court, most of whose justices are DeSantis appointees, vetoed diversion for Uhlfelder, however. The justices took the extraordinary step of telling the Bar to have another look at his case.

Then the Uhlfelder grievance committee, working with a Bar lawyer, gave the justices what they seemed to want: a new set of ethics rule violations based on Mattox and Kitchen’s change of heart. The second Bar complaint alleges Uhlfelder violated rules against misconduct, “dishonesty, fraud, deceit or misrepresentation,” and requiring “candor toward the tribunal.”

After numerous stops and starts, Uhlfelder’s trial on those charges finally happened this month. Taylor County Circuit Judge Gregory Parker, the presiding referee, has a June 9 deadline for sending his findings and penalty recommendation to the Supreme Court.

The justices can do whatever they want with Parker’s observations and suggestions.

BAR SUMMONS DEFENSE BOOSTERS

Presumably to reinforce the case against Uhlfelder, the Bar subpoenaed two legal luminaries: Barry Richard, former President George W. Bush’s lawyer in the landmark Bush v. Gore case, and Robert Benton, a retired judge who spent almost 22 years on the 1st DCA.

Bar counsel Shanee Hinson tried to establish that Uhlfelder claimed Benton and Richard were his lawyers — another lie. But that strategy backfired.

Both men testified they consulted with him informally, alongside his father attorney Steve Uhlfelder, in 2020 when a 1st DCA panel took steps to sanction Daniel Uhlfelder, Mattox and Kitchen for filing a baseless appeal. The court also told the Bar to open an ethics investigation.

Judges Adam Tanenbaum, Bradley Thomas and Susan Kelsey signed the paperwork. (Prominent lawyer and lobbyist Steve Uhlfelder died on Feb. 11, 2023.)

Barry Richard, a lawyer for over 50 years, said he wouldn’t have been able to defend Uhlfelder against Bar charges because the Bar was his client in another matter. He had a conflict.

Yet Richard felt he could offer advice about dealing with an anomaly. “I had no experience with a court sending a lawyer to the Bar because they thought a case was frivolous,” he testified.

Benton, who helped Uhlfelder with his response to the 1st DCA’s Nov. 13, 2020 sanctions order, testified he didn’t know Daniel Uhlfelder was at odds with Mattox and Kitchen at that time.

Therefore, Benton told him to “emphasize that there are three of you in the barrel” because “surely it’s unprecedented that a court would sanction three lawyers who feel it’s appropriate to take an appeal.”

Benton joined R. Fred Lewis, a former Supreme Court justice, in submitting affidavits on Uhlfelder’s behalf to the Bar. Lewis wrote, “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.”

Hinson and lead Bar counsel Olivia Klein had no comment when Florida Bulldog asked why they subpoenaed Richard and Benton, neither of whom supported the prosecution’s case.

‘ALL FOR ONE, ONE FOR ALL’

Uhlfelder testified that Mattox and Kitchen gave him no reason to believe they had abandoned the appeal until the court initiated sanctions and Bar discipline. He said the three never strayed from the division of labor they used in the trial court – he did the legwork while Mattox and Kitchen, his busy pro bono lawyers, pitched in as needed.

“We were all for one and one for all. We were all in this together,” he said under questioning by his Tampa lawyer, Scott Tozian.

And at the same time, “They were my attorneys, I expected them to represent me,” Uhlfelder said.

He said Mattox sent him pleadings from her cases that summarized helpful research for the appeal and the three discussed public-records requests and other strategic issues. “We had a lot of phone calls” about the appeal.

Emails in the court record show that Kitchen was the group’s cheerleader.

“Let’s whip some ass,” he wrote soon after Leon County Circuit Judge Kevin Carroll dismissed the DeSantis case on constitutional grounds. Carroll welcomed the public-spirited lawsuit and created a shortcut to the 1st DCA so that a higher authority could quickly review his ruling.

“This is not a loss, simply a first step in a long process,” Kitchen wrote.

Still, Mattox and Kitchen failed to take some routine steps to support the appeal. Hinson, the Bar counsel, tried to spin that inactivity to show Uhlfelder should have known they’d left the team.

HOW TO IGNORE AN APPEAL

According to testimony, the 1st DCA copied all three lawyers with about 10 case-related documents that listed Mattox and Kitchen as Uhlfelder’s lawyers.

For their part, Mattox and Kitchen testified they paid no attention to the court documents but relied on Uhlfelder to correct the record about their departure from the DeSantis case.

Mattox testified she has an assistant read and dispose of documents from cases she has left –  “It’s a personal preference,” Hinson said.

“That’s an obligation as a trial lawyer,” Uhlfelder countered. “I believe they should read everything.” He said he reads “everything that has my name on it.”

In another departure from standard procedure, neither Mattox nor Kitchen asked to review Uhlfelder’s response to the 1st DCA’s game-changing Nov. 13, 2020 sanctions order.

“This looks fine … Happy Thanksgiving,” Kitchen wrote when Uhlfelder sent it to him anyway. Kitchen testified he was too busy caring for his sick father and preparing for a family gathering to provide any feedback on the pleading.

Mattox observed, “I don’t think we have a choice at this point” but to sign off on Uhlfelder’s response.

“She had a choice,” Uhlfelder said, suggesting Mattox could have filed her own response.

After Kitchen left the stand, Florida Bulldog asked his Tallahassee lawyer, Richard Bush, about Kitchen expressing solidarity with Uhlfelder that he later admitted was insincere.

Bush, who also represented Mattox, must have negotiated the lawyers’ lenient plea deals with the Bar. He said Kitchen was merely “puffing” and that’s perfectly ethical; Bush claimed to be an expert on the subject.

He also did a passable imitation of a music conductor. While Kitchen was on the stand, Bush was in the courtroom gallery using hand signals to orchestrate his client’s testimony. He tamped down Kitchen’s angry rhetoric from forte to moderately loud.