Supreme Court of Florida
No. SC2024-0149
THE FLORIDA BAR,
Complainant,
vs.
CLAYTON BOWERS STUDSTILL,
Respondent.
October 15, 2026
PER CURIAM.
The Florida Bar seeks review of a report of referee
recommending that Respondent, Clayton Bowers Studstill, be found
not guilty of professional misconduct. 1 As discussed below, we
disapprove the referee’s findings of fact and recommendation that
Respondent be found not guilty of violating any Rules Regulating
The Florida Bar. We instead find Respondent guilty of violating
rules 4-3.3 (Candor Toward the Tribunal) and 4-3.4 (Fairness to
Opposing Party and Counsel), and we remand to a newly appointed
1. We have jurisdiction. See art. V, § 15, Fla. Const. referee for a hearing limited to a determination of the recommended
discipline.
BACKGROUND
On January 31, 2024, the Bar filed a formal complaint against
Respondent, alleging that while appearing before the Ninth Judicial
Circuit in Orange County case number 2017-DR-012388, he
violated rules 4-3.3 and 4-3.4. It alleged he knowingly failed to
abide by the court-ordered rule of sequestration by speaking to his
expert witness and then, when questioned about his misconduct,
misrepresented to the court what he had said to the witness.
Respondent and Dorothy McMichen were together representing
Respondent’s wife in a paternity proceeding brought by her former
boyfriend, Timothy Joseph Galvin. The Court referred the matter to
a referee for consideration.
Referee’s Findings as to Alleged Rule Violations
The Galvin paternity case was scheduled for trial the week of
June 6, 2022. On Friday, June 3, 2022, Respondent and
McMichen met in Orlando to finalize preparations for trial. The two
lawyers had divided the witnesses between them. After having
dinner together and returning to McMichen’s office, McMichen
-2-noticed that Respondent looked “red-faced” and “acted different.”
Respondent left McMichen’s office early that evening and agreed to
return the following morning. However, Respondent did not meet
with McMichen the following day but instead went to Guidewell
Emergency Doctors in Ocoee, Florida, where he tested positive for
COVID.
On June 5, 2022, McMichen filed a motion to continue in the
Galvin case based on Respondent’s illness. On the morning of June
6, 2022, a virtual hearing on the motion was held before Judge
Michael Kraynick. After Mrs. Studstill testified pertaining to
Respondent’s condition, Judge Kraynick questioned Respondent
regarding his illness and then granted in part and denied in part
the motion to continue. The trial was continued from June 6 to
June 8, and Mrs. Studstill and both of her attorneys were allowed
to appear virtually.
On June 8, 2022, Respondent appeared virtually for trial. He
conducted the direct examination of one witness. Respondent told
Judge Kraynick that he was feeling better that day. At the
disciplinary hearing, McMichen, the guardian ad litem Mary Ann
Etzler, opposing counsel Douglas Dorner, and Timothy Galvin all
-3-testified that Respondent had no apparent issues and that there
were no signs he was unwell. Respondent testified that on the
evening of June 8, 2022, he took an at-home COVID test and again
tested positive.
Respondent believed on Thursday, June 9, 2022, he had no
choice but to appear in person for trial, as his client’s key witness,
Dr. Lisa Bidwell, was testifying that day and Respondent had
approximately 10,000 emails to get into evidence. Despite not being
fully recovered, even at one point asking Dr. Bidwell if she felt the
building was swaying, he was able to direct examine Dr. Bidwell,
enter some exhibits into evidence, and respond to objections.
During Dr. Bidwell’s testimony, an issue arose regarding the
authentication of text messages. Before her testimony was
complete, Dr. Bidwell was asked to wait in the hallway until the
documents could be authenticated by Mrs. Studstill. Prior to her
departure, the judge invoked the rule of sequestration, explained
what it meant, and asked Dr. Bidwell if she understood. She
acknowledged that she understood. The trial judge expressly
instructed Dr. Bidwell that she was “not permitted to have any
contact or communication with any party or any party’s
-4-representative between now and the time that [she was] called again
to testify.” Respondent remained in the courtroom while McMichen
questioned Mrs. Studstill. As the examination was wrapping up,
Respondent grabbed a stack of papers and exited the courtroom.
After the judge adjourned for lunch, opposing counsel Dorner
notified the bailiff that he needed to speak with the judge. Dorner
advised the judge that he had observed Respondent outside the
courtroom sitting and speaking to Dr. Bidwell. Judge Kraynick
called Respondent back into the courtroom and questioned him
about his conduct.
Respondent told the judge he was releasing Dr. Bidwell as a
witness and wishing her well. He further stated: “I thought that she
would be coming back to testify after the communications had been
authenticated. Absent the authentication, I was trying to turn off
the meter and release the witness.” In response, Judge Kraynick
asked: “How do I know that you were not out there talking to her
about what exhibits were entered and what were not, and now
you’re telling me you’re releasing her without Mr. Dorner even
having the opportunity to cross[-]examine her? You could
understand the [c]ourt’s frustration, right?” Respondent then
-5-changed his story, stating “[t]hat was my goal in going outside to
make sure she was here.”
Judge Kraynick then called Dr. Bidwell back into the
courtroom and questioned her about her conversation with
Respondent. She said, “He was talking about the text messages
that weren’t admitted for my -- in my analysis [and] was referencing
the exhibit numbers that he thought weren’t coming in.” When
questioned further, she informed the court that Respondent had not
had any conversation with her about releasing her as a witness.
Judge Kraynick then asked Respondent, “Why would you lie to
this tribunal?” In response, Respondent stated that he did not
believe he lied to the tribunal, but he agreed “that there must not
have been proper candor.” Respondent also said, “In that moment,
I did not recall properly,” and that he was paying attention “[t]o the
best of [his] ability.”
The judge released everyone for the lunch break. Upon trial
resuming, Respondent was not present. McMichen informed the
judge that Respondent was not feeling well and had left to seek
medical attention. Judge Kraynick requested that Respondent
return to the court. Upon his return, Respondent told the judge
-6-that his wife and co-counsel told him he did not look well, he did
not feel well, and he needed to go get checked out before returning
to work. Respondent also told the judge that he did not feel like he
was “making very good decisions at that moment, and that [his]
ability to practice at the moment is hampered” and that he had
“some COVID brain.” The judge then released Respondent to seek
medical attention.
Respondent returned to Guidewell Emergency Doctors,
complaining of “not thinking right.” Respondent was admitted to
Orlando Health Hospital the afternoon of June 9, 2022, and was
discharged from the hospital the following day. The discharge
summary states that Respondent’s diagnosis was COVID-19 and
that he “[r]eturned to work too soon after Covid-19 while still
symptomatic.”
Dr. Khurram Nazir, a board-certified neurologist, testified as
an expert witness at the disciplinary hearing on Respondent’s
behalf. Dr. Nazir reviewed all of Respondent’s Orlando medical
records and met with Respondent in July 2024. In Dr. Nazir’s
opinion, Respondent was suffering from delirium on June 9, 2022,
and should not have been working. Dr. Nazir testified that a person
-7-suffering from delirium may appear “normal” one moment and have
loss of executive function the next.
Referee’s Recommendations as to Guilt
In recommending that Respondent be found not guilty of the
charged rule violations, the referee first stated that
[t]here’s no question that the statements made by
Mr. Studstill and his behavior in and of themselves on
the record on June 9, 2022, are both a violation of the
judge’s order of sequestration, which is very clear on the
record, and is a violation of the disciplinary rule of not
being honest and candid with the court.
On their face the statements are clearly that.
Normally, that would be the end of the discussion. We’d
be moving to a sanctions hearing, and that’d be that.
The referee believed, however, that the case “should never
have happened” and that “[t]here are a whole lot of oddities.” The
referee discussed that COVID was “a very divisive kind of thing” and
that he never had a situation where a judge did not take a lawyer’s
word that he was ill or sick.
Regarding Respondent’s conduct with respect to Dr. Bidwell,
the referee made the following observation:
They’re in the middle of the testimony of Mrs.
Studstill to authenticate these emails, and Mr. Studstill
walks outside and has a conversation in violation of the
sequestration order with Dr. Bidwell. That makes no
sense to me at all for a person in their right mind.
-8-Especially a lawyer.
Why am I, as a lawyer, going to walk outside the
courtroom and start talking to a witness out there?
Number one, it’s a violation of the judge’s order, but
that’s beside the point. And start talking to them about
what is or isn’t coming into evidence when the judge
hasn’t even made a ruling? That doesn’t make any sense
whatsoever. It is absolutely nonsensical. It just wouldn’t
even begin to make sense.
The referee then discussed what he believed was a nonsensical
answer by Respondent in response to the trial court’s inquiry:
Mr. Studstill compounds the problem by, when
being addressed by the judge, well, what did you say to
her? Well, I told her to go home. Why would he tell her
to do that either? She’s not been excused, but that’s
beside the point. By the witness going home, it would
torpedo his own case. It would make no sense for him to
do that either. It makes no logical sense.
And I’m putting all this in this report to hopefully
make it real clear to the Supreme Court Justices when
they look at this, that this just doesn’t make any sense,
and why it doesn’t make any sense, and it just basically
doesn’t make any sense in this situation.
The referee could not find that Respondent acted knowingly
because
[t]he statements he made that were both inappropriate
and untruthful make no sense for him to have made in
his normal right mind.
They don’t logically help his case. Most people
when they lie, lie to help themselves or lie to help their
client, unfortunately. That’s what they do. This makes
no sense because none of this was going to do anything
to help Mr. Studstill at all. It never was going to make
-9-any sense.
Based upon his impressions that Respondent’s conduct did
not make sense, the referee recommended that the Bar’s complaint
be dismissed and Respondent be found not guilty of violating any
provision of the rules. The referee further stated that had the
underlying case simply been continued by a month, this case would
not be before the Court. In addition, the referee added that nothing
he heard about Respondent suggests “this was in any way, shape,
or form consistent with his behavior in the 20 years he’s practiced
law.”
ANALYSIS
“The Court’s review of the referee’s findings of fact is limited,
and if a referee’s findings of fact are supported by competent,
substantial evidence in the record, this Court will not reweigh the
evidence and substitute its judgment for that of the referee.” Fla.
Bar v. Schwartz, 284 So. 3d 393, 396 (Fla. 2019) (citing Fla. Bar v.
Frederick, 756 So. 2d 79, 86 (Fla. 2000)). “That is, ‘a referee’s
findings of fact regarding guilt carry a presumption of correctness
that should be upheld unless clearly erroneous or without support
in the record.’ ” Id. (quoting Fla. Bar v. Barrett, 897 So. 2d 1269,
- 10 -1275 (Fla. 2005)). Further, the party challenging the referee’s
findings 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).
However, as to the actual recommendations of guilt, “the referee’s
factual findings must be sufficient under the applicable rules to
support the recommendations.” Fla. Bar v. Patterson, 257 So. 3d
56, 61 (Fla. 2018) (citing Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005)).
Rule 4-3.3(a)(1) provides that “[a] lawyer shall not
knowingly . . . make a false statement of fact or law to a tribunal or
fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer.” Rule 4-3.4(c) states “[a] lawyer
must not knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no
valid obligation exists.” Both rules require that the lawyer act
“knowingly.” The record contains no evidence to support the
referee’s findings. Indeed, the evidence contradicts the referee’s
conclusions that Respondent did not act knowingly.
- 11 -To support the finding that Respondent’s misconduct was not
done knowingly, 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 is not, however, Respondent’s motive, but
whether he acted knowingly, i.e., deliberately, Black’s Law
Dictionary (12th ed. 2024), with awareness, deliberateness, or
intention, Webster’s Third New International Dictionary (1993 ed.).
See Fla. Bar v. Watson, 76 So. 3d 915, 922 (Fla. 2011). The record
clearly establishes that Respondent’s conduct was not accidental
but deliberate.
First, the referee made clearly erroneous findings about when
Judge Kraynick ruled on the admissibility of the exhibits and when
Respondent left the courtroom to go speak to Dr. Bidwell.
At the hearing before the referee, the guardian ad litem
testified that Respondent remained in the courtroom at counsel
table on June 9, 2022, for about 10-15 minutes before the lunch
break before taking papers and a folder with him when he left.
The trial transcript reflects that a break was taken at 10:53 a.m.,
and the court reconvened at 11:00 a.m. for the authentication
- 12 -testimony. The lunch break was taken at 12:16 p.m., so, because
Respondent only left the courtroom 10-15 minutes before the lunch
break, he sat through approximately one hour of testimony before
leaving the courtroom. Thus, while the trial transcript does not
reflect at exactly what point Respondent went to speak to Dr.
Bidwell, it is clear from the record Respondent left after Judge
Kraynick had made at least some ruling or rulings on admissibility.
Indeed, Judge Kraynick observed Respondent leave the courtroom
and asked when the issue was raised, “How do I know that you
were not out there talking to her about what exhibits were entered
and what were not?”
When questioned by the court, Respondent 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. Rather, he falsely told the judge he was releasing
her. Respondent’s story fell apart when Judge Kraynick questioned
the expert witness, who denied that Respondent had discharged
her. She specifically testified that he discussed what exhibits would
not be admitted. As is the case here, “absent an admission by the
charged person, intent to violate a court order may be established
- 13 -by circumstantial evidence.” Fla. Bar v. Forrester, 916 So. 2d 647,
652 (Fla. 2005).
Second, the referee failed to view Respondent’s alleged
misconduct in the context of his actions throughout the paternity
proceedings, stating that “nobody has ever presented anything
about Mr. Studstill that suggested this was in any way, shape, or
form consistent with his behavior in the 15 years or more that he
has practiced law.” Contrary to this finding of fact, Respondent had
previously been found to have been in violation of one of the parties’
joint stipulations by Judge Kraynick. And it is proper to consider
the trial court’s final order on paternity that was entered into
evidence in the disciplinary hearing. Fla. Bar v. Gwynn, 94 So. 3d
425, 430 (Fla. 2012) (“The Court has clearly held that a referee in a
bar disciplinary proceeding can properly rely upon facts established
in orders and decisions of other tribunals to support his or her
findings of fact.”); Fla. Bar v. Alva, 404 So. 3d 293, 298 (Fla. 2024).
Finally, regarding Respondent’s medical condition and its
effect on his conduct, the referee’s findings are also clearly
erroneous. While there is no dispute that Respondent tested
positive for COVID at a medical facility on June 4, 2022, the
- 14 -witness testimony was conflicting as to Respondent’s physical
symptoms. None of the medical records from June 9, 2022, reflect
that Respondent was running a fever when he was seen at either
urgent care or the emergency room, or that he was not oriented and
alert. Rather, the medical records only include Respondent’s selfreports of “not thinking right” and possibly “experiencing brain fog.”
Moreover, as contemporaneously found by Judge Kraynick only
hours before, Respondent had made his entry of appearance,
addressed the court regarding the nature of Dr. Bidwell’s testimony,
began the direct examination of Dr. Bidwell and then requested a
break in order to recall the witness after laying a foundation. In
addition, for the first time when testifying before the referee,
Respondent claimed that he tested positive for COVID the evening
of June 8, 2022, but did not advise the trial court of that fact. Nor
did McMichen testify before the referee that Respondent mentioned
anything about a positive COVID test on June 8. Further, while
Respondent testified before the referee that he tested positive for
COVID at the hospital on June 9, 2022, the records refute that
testimony by not reflecting any new diagnosis of COVID-19, only
that he had previously been diagnosed with the virus on June 4.
- 15 -And regarding Dr. Nazir’s testimony, once again, it is based upon
Respondent’s self-reports, both from the 2022 records and his 2024
evaluation of Respondent. For these reasons, we conclude that the
medical records and testimony here do not constitute competent,
substantial evidence that Respondent was not “in his normal right
mind” and thus did not act knowingly as found by the referee. Cf.
Fla. Bar v. Whitney, 132 So. 3d 1095, 1104 (Fla. 2013) (competent,
substantial evidence supported the referee’s finding that the
representation to the tribunal was false regarding why the
respondent could not attend the deposition because respondent’s
medical records only showed that he went to a medical clinic two
days after the deposition he failed to attend, was treated for a skin
rash, and at no time filed a notice of unavailability for the
deposition or contacted opposing counsel).
Based upon the foregoing, the referee’s findings of fact are
clearly erroneous. As discussed above, the record evidence
establishes that Respondent knowingly violated the rule of
sequestration, as ordered by the court, and discussed with his
expert witness some of the exhibits that would be excluded from
trial, in violation of rule 4-3.4(c). The record evidence also
- 16 -establishes that Respondent then knowingly lied to Judge Kraynick
regarding his interaction with his expert witness in violation of rule
4-3.3(a)(1).
The dissent disagrees, arguing that Respondent did not violate
the “rule of sequestration.” While the dissent may be correct about
the traditional scope of sequestration, that is beside the point. The
trial court did not simply invoke the rule of sequestration in
generalized terms. Instead, Respondent disregarded the trial
court’s specific sequestration ruling that Dr. Bidwell not speak to
“any party or any party’s representative” until she was recalled to
testify. That is, he “knowingly disobey[ed]” the ruling without
“open[ly] refus[ing]”—or objecting to—the obligation it imposed. R.
Regulating Fla. Bar 4-3.4(c). In doing so, he also placed the witness
in an untenable situation. 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.
CONCLUSION
Accordingly, we conclude that the referee’s conclusion that
Respondent did not violate Rules Regulating The Florida Bar
- 17 -4-3.3(a)(1) and 4-3.4(c) is clearly erroneous. Therefore, we
disapprove the referee’s report and remand this case to a newly
appointed referee for a hearing limited to a determination of
recommended discipline.
It is so ordered.
COURIEL, C.J., and LABARGA, MUÑIZ, GROSSHANS, and
FRANCIS, JJ., concur.
TANENBAUM, J., concurs in part and dissents in part with an opinion, in which BARRIOS, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
TANENBAUM, J., concurring in part and dissenting in part.
Alas, the majority finds the respondent guilty of “disobey[ing]
an obligation under the rules of a tribunal,” Rule Regulating the
Florida Bar 4-3.4(c), even though the old, common-law
sequestration rule codified in evidentiary 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. At the core of the
respondent’s wrongdoing is his lack of candor to the trial court, and
I concur that he thereby violated Rule Regulating the Florida Bar 4-3.3. Otherwise, I dissent.
- 18 -The bar initiated disciplinary proceedings by alleging that, in
addition to being untruthful to the trial judge, the respondent
“fail[ed] to abide by the rules of sequestration set down by the court
for the proceedings” when he talked to his own expert witness
during a break. The rule of sequestration, though, is not as broad
as the bar makes it out to be.
The rule allows the trial court to exclude a witness “from a
proceeding so that they cannot hear the testimony of other
witnesses.” Fla. R. Evid. § 90.616(1) (emphasis supplied). As the
highlighted text indicates, “[t]he purpose of the rule of sequestration
is ‘to avoid a witness coloring his or her testimony by hearing the
testimony of another,’ thereby discouraging ‘fabrication, inaccuracy
and collusion.’” Knight v. State, 746 So. 2d 423, 430 (Fla. 1998)
(quoting CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 616.1, at 506
(1998 ed.)); see also Hilton v. State, 117 So. 3d 742, 751 (Fla. 2013)
(noting that the “reason for the rule of witness sequestration is to
avoid coloring a witness’s testimony by that heard from other
witnesses”).
Strictly speaking, when the rule is invoked, a witness is not “to
remain in the courtroom during proceedings when he or she is not
- 19 -on the witness stand.” Burns v. State, 609 So. 2d 600, 606 (Fla.
1992). That is all the rule requires. Cf. Fed. R. Evid. 615(b) (stating
that an order under the preceding subdivision, comparable to
Florida’s evidentiary rule 90.616(1), “operates only to exclude
witnesses from the courtroom”). As any experienced trial lawyer
knows, the rule itself does not offer a blanket preclusion against
discussions between an attorney and his witness about testimony
the witness will give. See Kingery v. State, 523 So. 2d 1199, 1204
(Fla. 1st DCA 1988) (“It is undisputed that an attorney may talk to a
witness about the testimony the witness will give, and that the
witness’s credibility should not be challenged on the basis of the
discussion.”); see also Nieves v. State, 739 So. 2d 125, 127 (Fla. 5th
DCA 1999) (“We do not think the rule of sequestration prohibits an
attorney from talking with a witness about the testimony he or she
will give in a future court appearance.”).
The standard civil and criminal jury instructions posted to the
bar’s own website acknowledge this basic point. See Fla. Std. Jury
Instr. (Civ.) 601.2(c) (“[It is entirely proper for a lawyer to talk to a
witness about what testimony the witness would give if called to the
courtroom. The witness should not be discredited just because the
- 20 -witness talked with a lawyer about [his] [her] testimony.]”); Fla. Std.
Jury Instr. (Crim.) 3.9 (same); Florida Standard Jury Instructions,
The Florida Bar, https://www.floridabar.org/rules/floridastandard-jury-instructions/.
Moreover, experts typically offer opinion testimony based on
evidence presented through other witnesses. For this reason,
experts routinely are excepted from the sequestration rule. Cf. Fla.
R. Evid. § 90.616(2)(c) (providing for exception from exclusion rule
for a witness “whose presence is shown by the party’s attorney to be
essential to the presentation of the party’s cause”); Knight, 746
So. 2d at 430 (explaining that “[t]his exception is applied most
commonly to expert witnesses because ‘experts are testifying to
their opinions rather than to factual matters.’” (quoting EHRHARDT,
FLORIDA EVIDENCE, § 616.1, at 510)). There is no indication that
opposing counsel requested that the expert or the respondent be
specially ordered not to communicate at all about anything. So
the trial judge’s statement in open court that the expert witness was
“not permitted to have any contact or communication with any
party or any party’s representative” could only be understood as an
attempt quickly to summarize for the expert witness, albeit
- 21 -inaccurately, what the rule of sequestration meant in layman’s
terms.
The majority says this is all “beside the point.” Yet the rule of
sequestration, on this record, is the whole point. Contrary to the
majority’s characterization, there was no “sequestration ruling.”
Opposing counsel simply and routinely “invoked” the “rule” at the
start of the evidentiary proceeding (yes, that rule, which the
majority says does not matter), and the trial judge noted it would
apply to all witnesses, with one exception not relevant here. That
was it. There was no motion asking for special conditions to be
added to the general rule of sequestration. Counsel then
“reinvoked” the rule when the parties broke for lunch—again,
without any request for a special variation on the rule. At no point,
then, was there a “ruling” by the trial judge. The “rule”—that is,
rule 90.616—was invoked, and the rule was in effect.
There being no special “ruling,” it cannot fairly be said that the
judge directly ordered the respondent to do or not do anything. The
rule itself was in effect, and the respondent was subject to the rule’s
general terms of preclusion. The trial judge’s effort to explain to the
expert what invocation of the rule meant in terms that did not fully
- 22 -comport with the rule is not the same as “ordering” other terms as a
ruling on a motion.
The respondent, in turn, should not be ethically faulted for not
realizing the trial judge was expanding the rule of sequestration far
beyond what most practicing attorneys understand the rule to
mean. To be sure, had there been evidence that the respondent
attempted to undermine or circumvent the purpose of the rule—to
guard against a fact witness’s being exposed to in-court trial
testimony—there likely would have been an ethical breach to be
addressed here. Cf. Geders v. United States, 425 U.S. 80, 87 (1976)
(explaining the three-fold purpose behind the ancient English
sequestration practice as (1) restraining witnesses from “‘tailoring’
their testimony to that of earlier witnesses”; (2) making it easier to
“detect[] testimony that is less than candid”; and (3) “preventing
improper attempts to influence the testimony”); Fed. R. Evid. 615,
Advisory Committee Notes (2023) (explaining that rule revision
“emphasizes that the court may by order extend the sequestration
beyond the courtroom, to prohibit those subject to the order from
disclosing trial testimony to excluded witnesses” and that the rule
does not “bar[] a court from prohibiting counsel from disclosing trial
- 23 -testimony to a sequestered witness” (emphasis supplied)).
No one suggests the respondent attempted to improperly
influence his own expert’s testimony here. The expert obviously did
not have personal knowledge about the e-mails that presumably
were going to factor into her opinion testimony—which is why she
could not authenticate them herself. Even if the trial judge’s
instruction to the expert arguably applied to the respondent, the
expert was not being called to offer fact testimony about those emails. That is, there was no risk of fact-testimony tailoring.
Yes, the respondent’s purported discussion with his expert
during the break, clarifying which exhibits related to the expert’s
opinion testimony were being authenticated and admitted into
evidence, likely was opinion-testimony tailoring. That, however, is
acceptable trial fare. I have done this as a trial practitioner, and I
am sure many other practitioners have as well. It would be news to
many that the sequestration rule’s mere invocation would foreclose
any communication between a lawyer and his expert witness,
absent a showing of a specific need for such a blanket preclusion.
Though he mistakenly thought he had, the respondent initially
did nothing wrong when he spoke with his expert. A finding that
- 24 -the respondent violated ethical rule 4-3.4(c) has no basis in fact or
our rules, on this record. Had he been up-front with the trial
judge—and been a better student of the evidence rules—the
respondent would have had a better argument for avoiding both
trial-court sanction (to the detriment of his client) and this court’s
discipline.
A powerful lesson indeed.
BARRIOS, J., concurs.
Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff Counsel, and Mark Lugo Mason, Bar Counsel, The Florida Bar, Tallahassee, Florida,
for Complainant
Richard A. Greenberg of Rumberger, Kirk & Caldwell, Tallahassee, Florida, and Candy L. Messersmith of Rumberger, Kirk & Caldwell, Orlando, Florida,
for Respondent
- 25 -