Wire Services
A Northwest Florida attorney who drew national headlines by dressing as the Grim Reaper to criticize Gov. Ron DeSantis’ handling of the coronavirus pandemic is asking a judge to dismiss court proceedings seeking penalties for comments attributed to him in a news story.
Prosecutors last month filed a motion in Walton County to pursue sanctions against Santa Rosa Beach lawyer Daniel Uhlfelder, who traveled throughout the state in the macabre costume to call attention to issues such as the Republican Governor’s refusal to close beaches amid the pandemic.
The motion came after a three-judge panel of the 1st District Court of Appeal took the rare step of ordering State Attorney Ginger Bowden Madden to pursue discipline against Uhlfelder.
The court action is related to an unsuccessful lawsuit — and a subsequent appeal — Uhlfelder filed last year seeking to force DeSantis to shut down beaches to curb the spread of COVID-19.
A three-judge panel of the appeals court ruled that Uhlfelder’s appeal appeared to be “frivolous and/or filed in bad faith.”
The appeals court also asked The Florida Bar to consider imposing sanctions against Uhlfelder because of the appeal, which prompted the attorney to be quoted in the Tallahassee Democrat newspaper as saying, “I do find it interesting that this opinion attacking my critiques of Gov. DeSantis appeared just two days after I launched a (political) committee to remove Ron DeSantis.”
That comment caused the Tallahassee-based appeals court to direct Bowden Madden to pursue discipline. In the motion last month, Assistant State Attorney Anne N. Izzo accused Uhlfelder of “violating rules of professional conduct” for lawyers “as well as violating the oath of admission to The Florida Bar.” The motion did not specify what type of discipline prosecutors are considering.
In a response filed last week, attorney Richard Greenberg argued that Uhlfelder hadn’t done anything wrong. Greenberg asked a judge to dismiss the case, arguing that the state lacks a basis to pursue sanctions.
The appeals court’s Feb. 8 order requiring Bowden Madden to file a motion regarding Uhlfelder “contains no assertion” that Uhlfelder has been found guilty of any unprofessional conduct, Greenberg wrote in the six-page response.
The order said the statement attributed to Uhlfelder in the news story “may violate rules of professional conduct” and “may also violate the oath of admission to The Florida Bar,” Greenberg noted.
“The mere assertion that Mr. Uhlfelder ‘may’ have violated these rules and the oath of admission is insufficient to establish he ‘has been guilty of any unprofessional act,’” he argued. “Something that ‘may’ have occurred is only a possibility. Something that ‘has’ occurred is a fact.”
Rules governing lawyers’ professional conduct require a finding must be made that a member of the Bar “has been guilty” of unprofessional conduct before a judge can direct a state attorney to issue a motion to discipline the attorney, Greenberg added.
“No finding that Mr. Uhlfelder ‘has been guilty of any unprofessional act’ was made by the 1st District Court of Appeal,” he wrote.
Greenberg also argued that the state “fails to state a cause of action” that Uhlfelder’s comments violated professional conduct standards by impugning the qualification and integrity of the three appellate judges.
“Mr. Uhlfelder’s statement that he would ‘find it interesting that this opinion attacking my critiques of Gov. DeSantis appeared just two days after I launched a (political) committee to remove Ron DeSantis’ cannot be said to be false,” Greenberg wrote.
Uhlfelder’s comments don’t run afoul of a rule that prohibits lawyers from making statements “with reckless disregard as to its truth or falsity” about judges, Greenberg added. Uhlfelder simply said the opinion’s release “aroused his interest,” Greenberg wrote.
Greenberg pointed to another comment by Uhlfelder, in which he said he was “very pleased that the court rejected the governor’s vicious request for financial sanctions and instead punted this to The Florida Bar.”
“It defies logic to claim Mr. Uhlfelder was both ‘very pleased’ with the court’s opinion and yet somehow impugned the qualifications or integrity of the court,” Greenberg argued. “The lack of an assertion in the pleadings that Mr. Uhlfelder has been guilty of any unprofessional conduct shows an essential element of a cause of action is missing,”
In addition to the rare move of ordering Bowden Madden’s office to pursue sanctions against Uhlfelder, the three-judge panel ordered the Panhandle prosecutor’s office to file monthly status reports on the case with the appeals court.
An evidentiary hearing in the case has not been set, according to Walton County court records. The court records also show that three judges from the 1st Judicial Circuit were recused from the case, which is now assigned to Santa Rosa County Circuit Judge Scott Duncan.
_____
Republished with permission from The News Service of Florida.
