Key Points

  • The Florida Supreme Court disapproved a referee's findings and recommendation that attorney Clayton Bowers Studstill be found not guilty of professional misconduct.
  • The court found Studstill guilty of violating Rules Regulating The Florida Bar 4-3.3(a)(1), on candor toward the tribunal, and 4-3.4(c), on knowingly disobeying an obligation under the rules of a tribunal.
  • The majority held that the referee wrongly asked whether Studstill had a motive for the misconduct, when the question was whether he acted deliberately, and found that the medical evidence of COVID-related delirium rested on his self-reports.
  • Justice Tanenbaum, joined by Justice Barrios, concurred on the candor violation but dissented on the sequestration count, writing that section 90.616 does not bar a lawyer from talking with an expert witness during a break.
  • The court remanded to a newly appointed referee for a hearing limited to recommended discipline.

The Florida Supreme Court on Thursday found that a lawyer knowingly disobeyed a trial judge's instruction by discussing excluded exhibits with his sequestered expert witness and then lied to the judge about the conversation. The ruling overturned a referee who had recommended clearing the lawyer because the misconduct, in the referee's view, made no sense.

Chief Justice Couriel and Justices Labarga, Muñiz, Grosshans and Francis joined the unsigned, or per curiam, opinion finding Clayton Bowers Studstill guilty of violating Florida Bar rules on candor toward the tribunal and on fairness to opposing party and counsel. Justice Tanenbaum, joined by Justice Barrios, agreed that Studstill had lied to the judge but dissented from the finding that he violated the rule of sequestration, which allows a trial court to exclude witnesses so they cannot hear other witnesses testify. The court sent the case to a newly appointed referee for a hearing limited to recommending discipline.

The decision turns on what it means to act "knowingly" under the Bar's rules. The majority held that the referee "erroneously focused on what Respondent's motive would be, concluding that because the misconduct would make no sense, he could not have acted knowingly." The question, the court wrote, is "whether he acted knowingly, i.e., deliberately," not why he did it.

The case arose from a paternity proceeding in Orange County brought against Studstill's wife by her former boyfriend. Studstill, who represented her with attorney Dorothy McMichen, tested positive for COVID on June 4, 2022, and Judge Michael Kraynick moved the trial from June 6 to June 8. Studstill believed he had to appear in person on June 9 because his client's key witness, Dr. Lisa Bidwell, was testifying and he had roughly 10,000 emails to get into evidence.

When an issue arose over authenticating text messages, the judge sent Bidwell to wait in the hallway and told her she was "not permitted to have any contact or communication with any party or any party's representative between now and the time that [she was] called again to testify." Opposing counsel Douglas Dorner later told the judge he had seen Studstill outside the courtroom, sitting and speaking with her.

Questioned by Kraynick, Studstill said he had been releasing the witness. "Absent the authentication, I was trying to turn off the meter and release the witness," he told the judge. Bidwell then testified that "he was talking about the text messages that weren't admitted" and "was referencing the exhibit numbers that he thought weren't coming in." She told the court he had said nothing about releasing her.

"Why would you lie to this tribunal?" Kraynick asked. Studstill said he did not believe he had lied but agreed "that there must not have been proper candor." He left court that afternoon, telling the judge he had "some COVID brain," and was admitted to Orlando Health Hospital. At the disciplinary hearing, a neurologist, Dr. Khurram Nazir, testified that Studstill had been suffering from delirium on June 9.

The referee acknowledged that Studstill's statements and behavior, on their face, violated both the sequestration order and the duty of candor. But he said the conduct "makes no sense to me at all for a person in their right mind," and he reasoned that "Most people when they lie, lie to help themselves or lie to help their client." He recommended dismissing the Bar's complaint.

Although a referee's findings are presumed correct, the court concluded that "the evidence contradicts the referee's conclusions that Respondent did not act knowingly." Testimony showed Studstill sat through about an hour of authentication testimony before leaving the courtroom, so he spoke with Bidwell after Kraynick had ruled on at least some exhibits, the court wrote.

Studstill "did not admit that he was discussing the exclusion of certain exhibits with his expert witness, which would have risked having his witness's testimony entirely stricken," the majority wrote. "Rather, he falsely told the judge he was releasing her."

The court rejected the medical defense. The June 9 records did not show a fever or that Studstill was disoriented, the majority wrote, and contained only his own reports of "not thinking right" and possibly "experiencing brain fog." Nazir's opinion likewise rested on Studstill's self-reports, the court said.

Responding to the dissent, the majority noted that rule 4-3.4(c) allows "an open refusal based on an assertion that no valid obligation exists," but Studstill did not object. "If Respondent felt the trial judge's sequestration order was overbroad or incorrect, he should have raised his concerns with the judge in the presence of opposing counsel—not ignore the order of the court altogether," the court wrote.

Tanenbaum wrote that the sequestration rule, codified in evidence rule 90.616, "did not and does not preclude him from doing what he did—talk to an expert witness during a break in testimony." The dissent described the judge's words to Bidwell as an inaccurate attempt to summarize the rule "in layman's terms."

Tanenbaum acknowledged that the hallway discussion of which exhibits were being admitted "likely was opinion-testimony tailoring" but called it "acceptable trial fare," adding, "I have done this as a trial practitioner, and I am sure many other practitioners have as well."

Tanenbaum agreed on the candor count, writing, "At the core of the respondent's wrongdoing is his lack of candor to the trial court." Had Studstill been "up-front with the trial judge," the dissent said, he "would have had a better argument for avoiding both trial-court sanction (to the detriment of his client) and this court's discipline."

Studstill was represented by Richard A. Greenberg of Rumberger, Kirk & Caldwell. The Bar's lawyers included Joshua E. Doyle, its executive director.

A newly appointed referee will now hold a hearing limited to recommending discipline. The opinion states that it is not final until the time to file a rehearing motion expires and any motion filed is decided.