Florida Lawyers Shalt Not Blackmail Litigants
Content
THE MIAMI MIRROR – TRUE REFLECTIONS
Blackmailer in frame from Hitchcock’s ‘Blackmail’
FLORIDA BAR V. ECKERT – THOU SHALT NOT BLACKMAIL LITIGANTS
by David Arthur Walters
In The Florida Bar v James Daniel Eckert, File No. 2009-11,071 (6C), The Florida Bar averred
that Mr. Eckert had represented Jean Camposecco in post dissolution of marriage proceedings,
and that, while the case was pending, the opposing party, Robert Camposecco, filed an
Inquiry/Complaint form against the lawyer with The Florida Bar, which it received on March 4,
2009, alleging that Mr. Eckert had blackmailed him, and had personally called him at home
although he was represented by an attorney, one Phillip McLeod.
Mr. Camposecco withdrew the complaint on March 21, 2009, stating that, although he believed
Mr. Eckert was somewhat unethical, he did not believe he originated the “blackmail” suggestion,
attributing that to his ex-wife. On June 4, 2009, the Florida Bar advised Mr. Camposecco that the
file had been closed per his request.
However, on June 11, 2009, Mr. Camposecco asked that the withdrawn complaint be reopened,
saying he regretted having asked that the case be closed. He said he had done so because his
attorney, Mr. McLeod, had been upset that he had filed the Bar complaint against his fellow
attorney behind his back without telling him about it; consequently, Mr. McLeod resigned from
his case; but he wanted Mr. McLeod to stay with the case because he knew it so well, and he did
not want to go to the expense of hiring another attorney. He still felt that Eckert was guilty of
“blackmail” and that the facts should come out.
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“Blackmail” is an old term that once meant the evil rent (‘mail’) exacted by tribal chiefs in
Scotland in return for not pillaging farms; i.e., blackmail referred to protection money or bribes
extorted from people. Taxation is said to be the modern form of blackmail – fines and prison
sentences are exacted for failure to “voluntarily comply.” Blackmailers are despised by all but a
few libertarians who believe in absolutely free trade, and their fate in popular fiction can be far
more horrible than a slap on the wrist by the state bar association or a year in federal prison or a
few years in a state prison.
In Alfred Hitchcock’s 1929 ‘Blackmail’, a girl named Alice visits an artist’s studio and stabs him
to death when he tries to rape her. Her boyfriend Frank, a homicide detective assigned to the
case, finds one of her gloves at the scene, recognizes it, and while discussing the homicide with
her, Tracey, a petty thief who saw her at the artist’s studio, interrupts them with a blackmail
attempt, and Frank warns him that his blackmail attempt is doomed. The landlady then identifies
Tracey as the man she saw at the scene, so he is the chief suspect now. He flees and climbs up
the dome of the British Museum and falls to his death through a glass panel of the dome. The
symmetrical order of some of the spaces within the museum initially provided him with a sense
of control, but he soon lost it and panicked. Of particular interest to lawyers who blackmail
people is the scene in the angular library; all the books in the world will not save a miscreant
from chaos, no matter what defensive angle he takes.
Today anything of value besides money may be blackmail. For example, an interesting
discussion of blackmail takes place during the rape scene in the 1962 Cape Fear movie: the
convicted rapist Max Cady told the lawyer’s wife that, if she consented to his having his way
with her, then he would leave her daughter alone. “No, that’s not consent; it’s blackmail!” she
cried – she meant her consent would be coerced. Cady, an experienced jailhouse lawyer, would
naturally have a ready defense since there were no witnesses: “No, it’s not blackmail; you only
think I’m going after Nancy.” Alas for Cady that his self-taught law had always failed him; he
would not even appear in court in this case; instead, he found himself at the bottom of the river.
Now blackmail is a form of extortion variously defined by federal and state statutes, and may be
distinguished from extortion when it is said that blackmail involves a threat to commit an act that
is not independently illegal, such as revealing information about the commission of a crime:
Give me money or I'll tell the police what you did. Since the information is usually true, it is not
the revelation of the information that would be criminal, but demanding money to withhold it.
On the other hand, it may be said that “extortion” involves a threat to commit a violent act that is
independently illegal, such as inflicting physical injury: Give me money or I'll break your arm.
Blackmail or extortion is apparently a kind of stock in trade of the legal profession itself because
we often hear from litigants that officers of the court are blackmailing them, extorting money and
other advantages from them. They may not threaten physical violence, but they can otherwise
ruin lives.
Blackmail under Florida law is a felony, referred to indirectly by definition of “extortion” under
§836.05 Fla. Stat. (2010):
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“Threats; extortion, - Whoever, either verbally or by a written or printed communication,
maliciously threatens to accuse another of any crime or offense, or by such communication
maliciously threatens an injury to the person, property or reputation of another, or maliciously
threatens to expose another to disgrace, or to expose any secret affecting another, or to impute
any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary
advantage whatsoever, or with intent to compel the person so threatened, or any other person, to
do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the
second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
As for the Rules of Professional Conduct that lawyers are theoretically supposed to abide by, the
particular rule appertaining to the blackmail allegedly participated in by Mr. Eckert would be:
“RULE 4-3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL. A lawyer shall not…. (g)
present, participate in presenting, or threaten to present criminal charges solely to obtain an
advantage in a civil matter….”
The background for the blackmail accusation in Eckert was that Mr. Camposecco, during his
attempt to get his alimony payments reduced again or just terminated, said he had filed, on
February 23, 2009, a request for a domestic violence injunction (DVI) against his former wife
because she had threatened him. And then he was led to believe, by correspondence from his
lawyer, that she would, through her lawyer, a close associate of his own lawyer, reveal that he
had sent her email asking her to get illegal pills for him; that is, unless he withdrew his request
for a DVI. The evidence offered in support of that so-called blackmail, were as follows:
In a letter dated February 25, 2009, Mr. McLeod authorized Mr. Eckert to call Mr. Camposecco
for certain information, but said that discussion about illegal pill email was off limits:
“You wished to take my client’s deposition but I also provided his telephone
number so you may discuss the case, his income and the DVI if you make an
appearance in it as I will not attend his deposition at this time. The additional
issues regarding their relationship, emails about pills, are off limits. If you need to
discuss any of that, then the deposition under oath is necessary.”
On the same day, via email to Mr. Camposecco, Mr. McLeod explained the
reference to the pills: “Bob, I did not put it in the letter but he claims unless you
drop the DVI she has numerous emails from you asked her to get you pills
illegally. Just FYI as I do not care nor does it deserve a response. See attached.”
The Devil’s Advocate might argue from this slight evidence that Mr. Camposecco had probable
cause to believe that he was being blackmailed, at least as that term is employed in common
parlance; the blackmailer, in order to gain some advantage, threatened to reveal something
untoward about him unless he did or did not do something. We may infer from Mr. McLeod’s
email that he did not consider the threat of revealing a request to obtain pills illegally much of a
menace; he apparently saw little cause for alarm or probability of harm to his client’s case if the
ex-wife and/or her attorney had revealed that request. Still, he must have perceived something
base or foul in the request since he did not consider it worthy of a response, and warned Mr.
Eckert the matter was off limits.
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The threat, if actually made or participated in by Mr. Eckert was probably an idle one. Perhaps
he felt obliged to mention the wife’s alleged threat to Mr. McLeod. For all we know, that sort of
exchange may casually occur in the litigious trade, which engages itself in a great deal of
legalized blackmail – incidentally, complaints in lawsuits used to be called “libels” wherein
lawyers would throw the libels or books at people whether or not the accusations within them
were true.
Tampa Pill Mill 2010
Doctor House
Largo Drug Sweep 2009
If the claim about illegally getting pills were in fact true, then so what? Who knows, the ex-wife
herself might herself be implicated in uncomely behavior. We do not see the black-email on the
public record provided to us, so we can only speculate about its nature after getting a whiff of
blackmail.
Would Doctor House be committing a crime by merely asking a colleague to illegally procure
some painkilling pills for him? In the case at hand, perhaps it was feared that if it could be shown
that the petitioner for reduction in alimony was spending $600 per month in obtaining drugs
illegally, the alimony should not be reduced accordingly. But what if the man, like Doctor
House, was in excruciating pain, and was getting licensed doctors in so-called pill mills to
prescribe them, doctors who had not been convicted of illegal drug distribution crimes? Then he
might claim a reduction in his income instead of an increase in his ex-wife’s income as
justification for a reduction of alimony.
Or a person might feel some shame of being exposed for taking illegally obtained pills in
Florida, although the state is known as Pill Popping Paradise. Would you let a surgeon operate
on you if you knew he was taking illegally obtained painkillers not only because he was addicted
to them but to make sure that his pain would not interfere with his control of the scalpel?
In any event, Mr. Camposecco’s sensitivity is not surprising in a milieu that family lawyers may
find normal but is unusually provocative, hostile and deeply offensive to the litigants themselves.
We can certainly understand why a lawyer or two might find allusions to blackmail distasteful.
Perhaps only an unsophisticated party would take the veiled threat seriously; Mr. McCleod, who
had a duty to tell his client about it, and even to report his colleague to the The Florida Bar, had
in effect told his client not to worry about it.
Mr. Eckert denied the “blackmail” charge. He said he had discussed the matter with his longtime
colleague Mr. McLeod, and he concurred that there had been no threats as claimed. He said he
certainly would not make such a threat to Mr. McLeod; after all, he had known him for decades,
had been employed by his father and even became a partner of his father.
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It is reasonable to infer then that he knew such a threat would be unethical or criminal. Knowing
someone for a long time does not preclude one from engaging in unethical behavior; it may even
indispose one to report it as per “RULE 4-8.3 REPORTING PROFESSIONAL MISCONDUCT
(a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has
committed a violation of the Rules of Professional Conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the
appropriate professional authority.”
He said that he had conferred personally with Mr. Camposecco only at the request of Mr.
McLeod even though that was a procedure contrary to almost any case he had had in his career.
As a matter of fact, the Rules of Professional Conduct permitted the communication: “RULE 44.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL (a) In representing
a client, a lawyer shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer….”
He denied that he had had anything to do with Mr. McLeod’s withdrawal from the case; besides,
Mr. McLeod had taken that case to trial for Mr. Camposecco anyway.
In any case, Mr. Eckert was obviously deeply offended by the blackmail accusation. On June 24,
2009, in a letter to The Florida Bar, he objected to the reinstatement of a complaint that had been
closed, and especially to the charge of blackmail which he claimed was defamatory. On July 9,
2009, he wrote a letter to Mr. Camposecco, threatening to sue him for defamation and damages
unless he withdrew his Bar complaint and issued a letter of apology within five days.
“You have filed a baseless complaint against me with the Florida Bar, charging
me, among other things, with bribery and extortion. This letter, then, is to put you
on notice, that unless you withdraw such charges, plus issue a letter of apology,
within 5 days from July 10, 2009, which is the statutory time, you will be sued for
defamation of character, among other matters, and you will be held responsible
for all damages. Please consult with an attorney of your own choosing about these
matters, but I hereby advise you that Mr. Phillip McLeod, Esq., will be called as a
witness by my attorney. Please be governed accordingly.”
It appears that Mr. Eckert may have intended his reference to “the statutory time” to appertain to
§836.07 Fla. Stat. under the main heading “Defamation; Libel; Threatening Letters and Similar
Offenses”:
“836.07 Notice condition precedent to prosecution for libel. – Notice condition
precedent to prosecution for libel. – Before any criminal action is brought for
publication, in a newspaper periodical, of a libel, the prosecutor shall at least 5
days before instituting such action serve notice in writing on defendant,
specifying the article and the statements therein which he or she alleges to be false
and defamatory.”
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Defamation is a misdemeanor offense of the second degree under the criminal statute.
However, there is a way out:
“836.08 Correction, apology, or retraction by newspaper. – (1) If it appears upon
the trial that said article was published in good faith; that its falsity was due to an
honest mistake of the facts; that there were reasonable grounds for believing that
the statements in said article were true; and that, within the period of time
specified in subsection (2), a full and fair correction, apology, and retraction was
published in the same editions or corresponding issues of the newspaper or
periodical in which said article appeared, and in as conspicuous place and type as
was said original article, then any criminal proceeding charging libel based on an
article so retracted shall be discontinued and barred.”
Mr. Camposecco only published his complaint to The Florida Bar; it was not published in a
newspaper for which Mr. Camposecco was responsible, so it is difficult to understand why Mr.
Eckert would refer to an inapplicable statutory limit of five days as provided by the criminal
statute. In our lay opinion, a defamation action does not have to be based on a criminal statute,
but may be a tort action appertaining to an injury not due to a breach of contract, hence may be
brought as a civil suit, where the statute of limitation is far more than five days. There is a
similar reference to a 5-day period in Chapter 770 of the Florida Statutes (“Civil Actions for
Libel”), and that chapter is also very clearly limited to newspapers, radio and broadcast media.
The Devil’s Advocate might argue that Mr. Eckert added to the blackmail originally alleged with
more blackmail; that he wished to imply that Mr. Camposecco had committed the crime of libel
or the tort of defamation, accusing him of such in order to get him to drop the complaint. But
then his demand, if maliciously made, might constitute an extortionate letter or blackmail
according to the same §836.05, which is punishable as a felony.
Mr. Camposecco was frightened by the threat: he withdrew his Bar complaint on July 13, 2009:
“Mr. Eckert, after further thought and consideration, I have decided not to pursue
my complaint against you with The Florida Bar. At this time of my life there are
much more important things to take care of and so little time left to do it all. So,
once again, consider this matter closed as far as I’m concerned. Perhaps you
should consider closing the debt matter against me as well.”
Nevertheless, on December 30, 2009, the Sixth Judicial Circuit Grievance Committee found
probable cause for further disciplinary proceedings, that the Respondent had violated Florida
Bar: Rule 4-8.4(d), stating that a lawyer shall not engage in conduct in connection with the
practice of law that is prejudicial to the administration of justice. The probable misconduct was
stated as: “On or about July 9, 2009, Respondent wrote a letter to a complainant threatening to
sue him for defamation and damages unless he withdrew his Bar complaint and issued a letter of
apology within five days.”
Apparently no probable cause was found that “blackmail” or “extortion” or “bribery” had been
committed as originally alleged or that the personal contact with opposing counsel with Mr.
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Camposecco was unethical. We find nothing on the public record provided to us actually
discussing and dismissing those charges. At this writing (May 3, 2011) The Florida Bar is
checking its files to see if part of the public file was not made available to us.
On December 11, 2010, Mr. Camposecco tendered a Conditional Guilty Plea. The referee in the
case recommended that Mr. Camposecco be found guilty, that he be publicly reprimanded and
pay $1,366.50 expenses in the case. On January 27, 2011, the Supreme Court approved the
uncontested referee's report and reprimanded Mr. Eckert.
So here we have, in The Florida Bar v. James Daniel Eckert, a finding of probable cause and a
guilty plea for an infraction that was not part of the original complaint but occurred during the
course of the investigation. Therefore it appears that the complaint as to this particular offense
was probably initiated orally by someone at the Florida Bar who was familiar with the leading
cases, Stone v. Rosen and Tobkin v. Jarboe, although the public bar record we have on hand
makes no mention of those cases or to the Florida common law expressed therein that complaints
to the Florida Bar about lawyer misconduct are absolutely privileged if not published elsewhere,
therefore the complainant is immune from defamation and/or malicious prosecution suits
whether his allegations are true or false.
When Karen Boroughs Lopez, the bar counsel or prosecutor in the Eckert case, and Kenneth
Marvin, Director of Lawyer Regulation, were asked who initiated the charge upon which the
guilty plea was had, they would only respond with a copy of Rule 3-7.4(c) under “Grievance
Committee Procedures” – “Investigation. A grievance committee is required to consider all
charges of misconduct forwarded to the committee by bar counsel whether based upon a written
complaint or not.” The record of our communication with Ms. Lopez is as follows:
WALTERS: I have reviewed the public record on the Eckert case, and see nothing
therein that would indicate who brought the particular charge on which Mr.
Eckert was found guilty i.e. of threatening Mr. Camposecco with a defamation
suit. Apparently no probable cause was found for charging Mr. Eckert for the
accusations brought by Mr. Camposecco, that of "blackmail" and that of
contacting him without benefit of counsel present. The threatening letter, you will
recall, came much later, after the case was reopened. Therefore, I am left
wondering if the Bar itself, under its own initiative, brought the charge for which
Mr. Eckert was disciplined, and if so, whom? Your good self? Mr. Marvin?
LOPEZ: Under the rules established by the Supreme Court (copy appears below,)
all matters are considered by the grievance committee. Those matters that result in
a probable cause finding are then brought before the Supreme Court via a
complaint process that is also outlined in The Florida Bar Rules Regulating The
Florida Bar. The Florida Bar becomes the complainant at that level, also per rule.
I hope this answers your questions. All of the Rules can be found on the Florida
Bar's website.
WALTERS: Yes I understand. My question is, in context of the discussion with
Mr. Marvin, as to who knows such threats of defamation-malicious prosecution
are barred? Mr. Eckert and his attorney with 80 years of experience between them
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did not know. So who at the Bar knew and proposed the charge against Eckert? I
am writing a book about how the Bar ignored a horrendous case where the
complainant directly accused the lawyer in his complaint of this kind of implicitly
prohibited behavior, yet his complaint was purportedly dismissed because he was
rude because the Bar did nothing for months, even when latent death threats and
false police reports were added to the complaint. Further, my suggestion to add a
Rule barring lawyers from making defamation and/or malicious prosecution
threats have been ignored by the Bar and Supreme Court. I can tell you that many
lawyers know nothing of the common law prohibition. Given that neither the
raising nor the discussion of the issue appears anywhere on the Eckert file, it is a
fair question of WHO knew, WHO brought it up? That way I can give credit to
the person who knew, as this matter is becoming a matter of nationwide interest.
Thanks!
LOPEZ: I am not sure what you are asking. However, Mr. Camposecco filed the
complaint.
WALTERS: Mr. Camposecco did not complain about letter threatening
defamation suit, at least not on the record. I am asking WHO at the Bar decided to
press that issue? Thanks.
LOPEZ: Bar counsel can send matters to the Grievance Committee and as per the
rules, the committee considers all matters even if the complainant does not
complain about a particular aspect of a case. There is an investigative process that
occurs and is conducted in each case. Each case is different as and unique, even if
at first brush, it might look the same. It can be confusing but when dealing with
human conduct there are many variables. I hope this helps.
WALTERS: Thank you. Do you recall when you yourself found out that
threatening Bar complainants with defamation and malicious prosecution is
against RULE 4-8.4(d)? Or that common law provides absolute privilege for Bar
complaints hence such threats would be unethical?”
LOPEZ: No.
I noticed that Mr. Eckert was admitted to the Bar in 1965, which gave me cause to wonder if he
was up to date on case law involving the defamation/malicious prosecution of persons who file
complaints against attorneys. In an April 25, 2011, email to Kenneth Marvin, whose name was
on the Eckert documents and who had sent out letters in the past citing and attaching copies of
the decision in Tobkin v Jarboe, I wondered if all attorneys had been advised on the
developments by way of continuing education, and why a specific Bar Rule had not been
promulgated on that point instead of reliance on a the prosecutor’s discretion of what prejudices
the administration of justice – a sort of catch-all rule – noting that my suggestions for such a rule
had been ignored. Threatening someone with a lawsuit for making a Bar complaint certainly
would seem to be “prejudicial to the administration of justice,” but it would seem that whatever
is definitely known to be prejudicial should be specified so all may know in advance what the
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rule is. Otherwise, god-like discretion is afforded the prosecutor. By way of analogy, could a
criminal prosecutor charge someone with obstructing justice because s/he filed a complaint
against an officer of the court with the court’s disciplinary arm?
“How would all Florida attorneys know that complainants have absolute immunity in respect to
complaints filed against them?” I inquired of Mr. Marvin, and asked him for a copy of the Bar
file.
“Good question,” he responded. “How does anyone know what the law is? Yet, we are all
responsible to conform our conduct to the law's requirements.”
“When I was a kid,” I said, “the judge who made me wash police cars said that ignorance of the
law is no excuse. I wonder that so many laws are being passed every day that I must be breaking
some of them without knowing it.”
“If you look at the volume of Florida Statutes it is overwhelming. I doubt that any citizen would
know 50% of what’s in there,” said Mr. Marvin – I believe the percentage would be more like
10%).
Once I had the Eckert file in hand, the first thing I laid eyes on were certain remarks made by the
attorney representing him in the case, one George M. Osborne. On August 1, 2010, in his answer
to the complaint against his client, he addressed Bar Counsel Karen B. Lopez and Kenneth
Marvin. He said he knew Eckert very well, that they were both graduated and admitted to the Bar
in 1965 and had practiced law a half block from each other for forty years. He said that Eckert
was a great lawyer, and cited his virtues at length. As for the immunity someone had against
being sued for defamation for filing a complaint with the Bar:
“I did not know of the immunity established in the case you kindly provided….
Jim is clear that he should not have written the letter. Had he known the rules it
would have been him delivering a retraction and apology despite having been
besmirched.”
Furthermore, in a September 1, 2010, letter to Karen Lopez:
“Do you give any credence to the points of my Answer, or do you think as a
matter of fact and law that not knowing about immunity and writing a letter
demanding a retraction of defamation and threatening suit for failure to retract
definitely and automatically and unqualifiedly subjects a lawyer to discipline? If
you do, there’s the rub, and I would like to know how you get to that conclusion. I
await your response with great interest – I am still open at this age to learn
something new…. I trust you understand I am hard pressed to think that the Court
expects a lawyer to be perfect. In 45 years at the Bar, neither of us ever heard of
this, never were exposed to it in required ethics CLE, and believe that this is true
for most attorneys.”
And we find this within the August 1, 2010 Answer to Complaint made by Mr. Osborne for Mr.
Eckert:
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“…. the Inquiry/Complaint was false and wrongfully impugned Respondent's
integrity, and was withdrawn by him, Robert Camposecco, while the postdissolution matter was pending for reasons other than, are at least in addition to,
his receipt of the letter identified in paragraph 4 of the subject complaint. Further,
before he withdrew his Complaint, Mr. Camposecco was advised by The Florida
Bar in substance that he could not suffer civil liability for having made a
complaint, and he communicated this information to Respondent who accepted it
as true, and, of course, took no action against Camposecco although he did not
then know that unqualified immunity had been decided by The Supreme Court of
Florida. It submitted that it is fair to note that none of the 100 plus cases cited
under Rule 4-S.4(d) involve a holding that the "administration of justice" as used
and intended in the Rule is operative when an Inquiry/Complaint has been filed,
and your Respondent's undersigned attorney has found no case that establishes
such a Rule, and respectfully suggests that the plain meaning and intent of the
Rule does not appear to include the concept that the administration of justice is at
work initially when an Inquiry/Complaint has been filed….
“….Respondent says further that had he known that unqualified immunity
protected even a wrong-headed or improperly motivated Inquiry/Complaint he
would never have even considered suit, much less written a demand for retraction
and apology…. Respondent denies any implication or inference that he knowingly
or with reckless indifference, indeed, with any indifference, took action that was
contrary to proper practice and inconsistent with the highest aspirations of the
profession. However, Respondent answers further that he certainly knows it is
fundamental that a lawyer should not threaten an action which he knows cannot
be effective as a matter of fact or of law, and, if as a matter of law the Court
determines that he should have known about the principle of unqualified
immunity, then he was not simply in error but would be in the wrong to send the
letter and if it is also determined that the Rule is operative at the stage of an
Inquiry/Complaint, then he is subject to discipline….
“…. Respondent regrets his ignorance of unqualified immunity, and wishes that
he knew it had been determined. He respectfully observes that he believes many
lawyers are not aware of it, and having served as chair of the Pinellas County
grievance committee for three years, and as a ten year member of a committee of
the St. Petersburg Bar Association to long ago deal with grievance matters,
respectfully relate that the idea and issue never arose. He believes the
Inquiry/Complaint was not only unjust, but was improperly motivated as a tactic
in his case and by his animosity toward his former wife and his aversion to
paying….”
Apparently Mr. Osborne was unaware of the fact that the complaint withdrawn by Mr.
Camposecco was reasserted by him and officially re-opened by The Florida Bar. We found no
answer to Mr. Osborne’s questions on the defamation subject put to Ms. Lopez, and we found no
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exoneration of Mr. Eckert on the accusations of wrongful communication and blackmail, so we
presented this letter to The Florida Bar:
May 03, 2011
Kenneth Marvin
Director of Lawyer Regulation
Karen Boroughs Lopez
Bar Counsel
THE FLORIDA BAR
Re: Rule 4-3.4(g)
Florida Bar v. James Daniel Eckert (SC10-1308)
Florida Bar v. Knowles (SC09-403)
Dear Counselors:
As you know, Robert Camposecco accused Mr. Eckert of two violations of the
Bar Rules in his complaint: blackmail, and wrongful communication with an
opposing lawyer’s client. However, neither of those accusations were addressed
and disposed of on the public record that was provided to me. Instead, counsel
initiated a third accusation and made it a charge; that Mr. Eckert, during the
course of the investigation, threatened to sue Mr. Camposecco for libel for
petitioning the Bar for redress of his two grievances. Mr. Eckert pled guilty to that
charge and was reprimanded.
It is obvious that the wrongful communication accusation was not an ethical
violation inasmuch as the Rules provide for communication with an opponent’s
client provided that his lawyer permits it, as the lawyer did in this case. Still, there
is nothing on the public record provided to me that exonerates Mr. Eckert in
regards to the complaint that he wrongfully communicated with Mr. Camposecco.
Of more serious concern is the blackmail charge, which I think should have been
pursued, based on the evidence presented by the complainant, according to Rule
4-3.4(g), A lawyer shall not…. (g) present, participate in presenting, or threaten to
present criminal charges solely to obtain an advantage in a civil matter….”
As we see in Florida Bar v. Knowles, “the respondent was guilty of threatening to
present criminal charges solely to obtain an advantage in a civil matter, conduct
which is expressly prohibited by Rule Regulating the Florida Bar 4-3.4(g). Such
misconduct by its very nature causes harm to the legal system. The respondent
was chargeable with knowledge of the rule prohibiting this misconduct.”
I suppose one might call the conduct prohibited a kind of “extortion” or
“blackmail.”
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In Florida Bar v. James Daniel Eckert, the defendant and his attorney had never
heard of the prohibition against threatening Bar complainants with defamation
suits, nor was that behavior expressed barred by the catchall Rule barring conduct
“prejudicial to the administration of justice.”
In Eckert, there is no dispositive discussion of the blackmail issue on the public
record that I have obtained. Usually one would find on that record at least a letter
to the complainant stating that there was no probable cause to charge and try the
accused, along with the reasoning behind that decision. Since the “blackmail”
accusation is itself on the public record, and blackmail is a serious crime, I believe
that the accusation should not be dropped into the abyss without words
exonerating the accused; at least the public record should include a declaration
that there was no probable cause to bring the charge, and the reasoning behind
that decision should be provided.
Coincidentally, the reasoning behind the common law foundation of the charge
Mr. Eckert pled guilty to is that, although baseless accusations against lawyers
may still damage their reputations when the cases against them are dismissed and
published, that is outweighed by the greater good of encouraging complainants to
come forward without fear of retaliation; innocent lawyers have some solace in
knowing that their exoneration is also published.
For all I know, the blackmail accusation may still be under investigation, or
perhaps The Florida Bar did not forward the entire public record to me as
represented. I certainly do not want to put this matter to bed thinking that the
prosecutorial power has in any way been arbitrarily or capriciously exercised. I
would rather believe that I am ignorant of the law and its processes and that my
sources are inadequate, or that some honest mistake has been made. It is to that
end that I pray for enlightenment and stand by for your response.
Sincerely,
David Arthur Walters
Journalist
Mr. Marvin advised us that Ms. Lopez had voluntarily left The Florida Bar and that he had sent
our letter to her supervisor to determine whether we are missing some of the public record. What
was purportedly the complete file was then forwarded to us. Some of the material previously sent
was not therein, and some of the material in the file had not been received previously. However,
the question remained, and was resubmitted to Mr. Marvin with a proposed answer:
WALTERS: Is this statement correct? A Florida Bar prosecutor does not have to
formally investigate accusations brought and provide a formal finding of no
probable cause on each one of them, but can simply ignore the original complaints
if s/he wishes and initiate and prosecute another complaint instead. So the public
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record may have, for example, (blackmail) written all over it, with no declaration
that the accused was exonerated. The public is simply to construe the absence of
an investigation and charges on accusations as findings of no probable cause.
MARVIN: Please see the last section of the rule [below], however you should
note that this case was not dismissed and that it would be inaccurate for you to
think that because certain allegations of the complainant were not pursued that
means that the case was dismissed. You have no reason to state that bar counsel
ignored the original allegations. They were investigated and it was found that
there was insufficient evidence to proceed further. While I agree that it would
make a cleaner record if there were some documentation that the original
allegations were dismissed, it is also clear that the matter was sent to the
grievance committee on one rule violation and it is also clear that the complainant
was sent a copy of the formal complaint.
Last Section of Rule 3-7.3 (d) Dismissal of Disciplinary Cases. Bar counsel may
dismiss disciplinary cases if, after complete investigation, bar counsel determines
that the facts show that the respondent did not violate the Rules Regulating The
Florida Bar. Dismissal by bar counsel shall not preclude further action or review
under the Rules Regulating The Florida Bar. Nothing in these rules shall preclude
bar counsel from obtaining the concurrence of the grievance committee chair on
the dismissal of a case or on dismissal of the case with issuance of a letter of
advice as described elsewhere in these Rules Regulating The Florida Bar. If a
disciplinary case is dismissed, the complainant shall be notified of the dismissal
and shall be given the reasons therefor.
There we have it from the Director of Lawyer Regulation’s mouth: the case itself was not
dismissed because the complaint brought by The Florida Bar itself was pursued and resulted in a
guilty plea, and the complainant was sent a copy of that complaint. The original two accusations
brought by Mr. Camposecco were allegedly investigated and dismissed for lack of probable
cause, although there is no written record of the investigations and dismissals – to the best of our
knowledge, based on two versions of the public record, no letters advising that no probable cause
was found to bring charges on the first two accusations were issued as per the Rules. Of course
the record would be cleaner with documentation; that is, people interested in the conduct of The
Florida Bar and the regulation of the legal profession could get a clearer picture of what is going
on.
Mr. Marvin could not say exactly how many charges had been brought against attorneys for
threatening to sue or actually suing Florida Bar complainants for defamation or malicious
prosecution for bringing complaints against them. He said there is no code for that type of
offense, and that, from the “seat of his pants,” he could say that not many such complaints had
been made. According to George M. Osborne’s study, none had been made prior to the charge
brought against his client Mr. Eckert. If that is true, we may have a leading Florida Bar case in
The Florida Bar v. Eckert.
Requests to the Florida Bar and the Supreme Court of Florida to promulgate an actual Bar Rule
or to amend Rule 4-8.4(d) to expressly prohibit retaliatory SLAPP-like suits (Strategic Lawsuits
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Against Public Participation) are routinely ignored. Further, the lawyer-packed Florida
legislature is prejudiced against any constitutional measure that might effectively restrain the
“inherent powers” of the “independent judiciary.” Any effort to transfer lawyer discipline to the
executive branch, as was done in the mother country recently, would be treasonous blasphemy.
The Florida Bar will merely state that defamation suits against those who lodge complaints
against its licensed attorneys may not be successful provided that the complainant does not
publish the complaint elsewhere – even so, the publication may be privileged since a Bar
complaint in Florida is a public record. That is, if you have the immediate means to defend
yourself, several hundred thousand dollars, against the malicious prosecution of suits, you may
not be “successfully” prosecuted for defamation.
Now, then, in the Eckert case, since we have no way of knowing from the file why the
prosecutor dismissed the original accusations, and the matter is left to the traditionally
revolutionary press because the establishment’s media is too cowardly to criticize the institution
that protects it, we shall dismiss them ourselves; to wit: In respect to the allegedly improper
communications with an opponent’s clients: the communication was had with the consent of the
client’s lawyer, which is proper according to Rule 4-4.2(a). As for the allegation of blackmail i.e.
threatening to introduce a criminal matter to obtain advantage in a civil matter: although the
revelation of a request to obtain illegal pills may have been embarrassing if such a request were
actually made, such a request in itself may not constitute a crime; if the request to obtain illegal
pills were a criminal matter, the revelation of that matter in the civil case would be proper
because the criminal matter and the civil matter were related inasmuch as spending money on
illegal activities, which are presumably unnecessary since prohibited by law, would have a
bearing on the ability of the petitioner in the civil case to make alimony payments to his ex-wife.
The petitioner’s attorney properly limited any discussion of the illegal pills matter to the public
record, i.e. the deposition. Mr. Eckert denied that he intended to or did make an illegal threat. If
there were any extortion here, it is legalized by American Bar Association Opinion 92-363. The
ABA abjures extortion but would not carefully define it since that might unduly restrain the
extortionate trade.
##
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Blackmailer in frame from Hitchcock’s ‘Blackmail’
FLORIDA BAR V. ECKERT – THOU SHALT NOT BLACKMAIL LITIGANTS
by David Arthur Walters
In The Florida Bar v James Daniel Eckert, File No. 2009-11,071 (6C), The Florida Bar averred
that Mr. Eckert had represented Jean Camposecco in post dissolution of marriage proceedings,
and that, while the case was pending, the opposing party, Robert Camposecco, filed an
Inquiry/Complaint form against the lawyer with The Florida Bar, which it received on March 4,
2009, alleging that Mr. Eckert had blackmailed him, and had personally called him at home
although he was represented by an attorney, one Phillip McLeod.
Mr. Camposecco withdrew the complaint on March 21, 2009, stating that, although he believed
Mr. Eckert was somewhat unethical, he did not believe he originated the “blackmail” suggestion,
attributing that to his ex-wife. On June 4, 2009, the Florida Bar advised Mr. Camposecco that the
file had been closed per his request.
However, on June 11, 2009, Mr. Camposecco asked that the withdrawn complaint be reopened,
saying he regretted having asked that the case be closed. He said he had done so because his
attorney, Mr. McLeod, had been upset that he had filed the Bar complaint against his fellow
attorney behind his back without telling him about it; consequently, Mr. McLeod resigned from
his case; but he wanted Mr. McLeod to stay with the case because he knew it so well, and he did
not want to go to the expense of hiring another attorney. He still felt that Eckert was guilty of
“blackmail” and that the facts should come out.
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“Blackmail” is an old term that once meant the evil rent (‘mail’) exacted by tribal chiefs in
Scotland in return for not pillaging farms; i.e., blackmail referred to protection money or bribes
extorted from people. Taxation is said to be the modern form of blackmail – fines and prison
sentences are exacted for failure to “voluntarily comply.” Blackmailers are despised by all but a
few libertarians who believe in absolutely free trade, and their fate in popular fiction can be far
more horrible than a slap on the wrist by the state bar association or a year in federal prison or a
few years in a state prison.
In Alfred Hitchcock’s 1929 ‘Blackmail’, a girl named Alice visits an artist’s studio and stabs him
to death when he tries to rape her. Her boyfriend Frank, a homicide detective assigned to the
case, finds one of her gloves at the scene, recognizes it, and while discussing the homicide with
her, Tracey, a petty thief who saw her at the artist’s studio, interrupts them with a blackmail
attempt, and Frank warns him that his blackmail attempt is doomed. The landlady then identifies
Tracey as the man she saw at the scene, so he is the chief suspect now. He flees and climbs up
the dome of the British Museum and falls to his death through a glass panel of the dome. The
symmetrical order of some of the spaces within the museum initially provided him with a sense
of control, but he soon lost it and panicked. Of particular interest to lawyers who blackmail
people is the scene in the angular library; all the books in the world will not save a miscreant
from chaos, no matter what defensive angle he takes.
Today anything of value besides money may be blackmail. For example, an interesting
discussion of blackmail takes place during the rape scene in the 1962 Cape Fear movie: the
convicted rapist Max Cady told the lawyer’s wife that, if she consented to his having his way
with her, then he would leave her daughter alone. “No, that’s not consent; it’s blackmail!” she
cried – she meant her consent would be coerced. Cady, an experienced jailhouse lawyer, would
naturally have a ready defense since there were no witnesses: “No, it’s not blackmail; you only
think I’m going after Nancy.” Alas for Cady that his self-taught law had always failed him; he
would not even appear in court in this case; instead, he found himself at the bottom of the river.
Now blackmail is a form of extortion variously defined by federal and state statutes, and may be
distinguished from extortion when it is said that blackmail involves a threat to commit an act that
is not independently illegal, such as revealing information about the commission of a crime:
Give me money or I'll tell the police what you did. Since the information is usually true, it is not
the revelation of the information that would be criminal, but demanding money to withhold it.
On the other hand, it may be said that “extortion” involves a threat to commit a violent act that is
independently illegal, such as inflicting physical injury: Give me money or I'll break your arm.
Blackmail or extortion is apparently a kind of stock in trade of the legal profession itself because
we often hear from litigants that officers of the court are blackmailing them, extorting money and
other advantages from them. They may not threaten physical violence, but they can otherwise
ruin lives.
Blackmail under Florida law is a felony, referred to indirectly by definition of “extortion” under
§836.05 Fla. Stat. (2010):
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“Threats; extortion, - Whoever, either verbally or by a written or printed communication,
maliciously threatens to accuse another of any crime or offense, or by such communication
maliciously threatens an injury to the person, property or reputation of another, or maliciously
threatens to expose another to disgrace, or to expose any secret affecting another, or to impute
any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary
advantage whatsoever, or with intent to compel the person so threatened, or any other person, to
do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the
second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
As for the Rules of Professional Conduct that lawyers are theoretically supposed to abide by, the
particular rule appertaining to the blackmail allegedly participated in by Mr. Eckert would be:
“RULE 4-3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL. A lawyer shall not…. (g)
present, participate in presenting, or threaten to present criminal charges solely to obtain an
advantage in a civil matter….”
The background for the blackmail accusation in Eckert was that Mr. Camposecco, during his
attempt to get his alimony payments reduced again or just terminated, said he had filed, on
February 23, 2009, a request for a domestic violence injunction (DVI) against his former wife
because she had threatened him. And then he was led to believe, by correspondence from his
lawyer, that she would, through her lawyer, a close associate of his own lawyer, reveal that he
had sent her email asking her to get illegal pills for him; that is, unless he withdrew his request
for a DVI. The evidence offered in support of that so-called blackmail, were as follows:
In a letter dated February 25, 2009, Mr. McLeod authorized Mr. Eckert to call Mr. Camposecco
for certain information, but said that discussion about illegal pill email was off limits:
“You wished to take my client’s deposition but I also provided his telephone
number so you may discuss the case, his income and the DVI if you make an
appearance in it as I will not attend his deposition at this time. The additional
issues regarding their relationship, emails about pills, are off limits. If you need to
discuss any of that, then the deposition under oath is necessary.”
On the same day, via email to Mr. Camposecco, Mr. McLeod explained the
reference to the pills: “Bob, I did not put it in the letter but he claims unless you
drop the DVI she has numerous emails from you asked her to get you pills
illegally. Just FYI as I do not care nor does it deserve a response. See attached.”
The Devil’s Advocate might argue from this slight evidence that Mr. Camposecco had probable
cause to believe that he was being blackmailed, at least as that term is employed in common
parlance; the blackmailer, in order to gain some advantage, threatened to reveal something
untoward about him unless he did or did not do something. We may infer from Mr. McLeod’s
email that he did not consider the threat of revealing a request to obtain pills illegally much of a
menace; he apparently saw little cause for alarm or probability of harm to his client’s case if the
ex-wife and/or her attorney had revealed that request. Still, he must have perceived something
base or foul in the request since he did not consider it worthy of a response, and warned Mr.
Eckert the matter was off limits.
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The threat, if actually made or participated in by Mr. Eckert was probably an idle one. Perhaps
he felt obliged to mention the wife’s alleged threat to Mr. McLeod. For all we know, that sort of
exchange may casually occur in the litigious trade, which engages itself in a great deal of
legalized blackmail – incidentally, complaints in lawsuits used to be called “libels” wherein
lawyers would throw the libels or books at people whether or not the accusations within them
were true.
Tampa Pill Mill 2010
Doctor House
Largo Drug Sweep 2009
If the claim about illegally getting pills were in fact true, then so what? Who knows, the ex-wife
herself might herself be implicated in uncomely behavior. We do not see the black-email on the
public record provided to us, so we can only speculate about its nature after getting a whiff of
blackmail.
Would Doctor House be committing a crime by merely asking a colleague to illegally procure
some painkilling pills for him? In the case at hand, perhaps it was feared that if it could be shown
that the petitioner for reduction in alimony was spending $600 per month in obtaining drugs
illegally, the alimony should not be reduced accordingly. But what if the man, like Doctor
House, was in excruciating pain, and was getting licensed doctors in so-called pill mills to
prescribe them, doctors who had not been convicted of illegal drug distribution crimes? Then he
might claim a reduction in his income instead of an increase in his ex-wife’s income as
justification for a reduction of alimony.
Or a person might feel some shame of being exposed for taking illegally obtained pills in
Florida, although the state is known as Pill Popping Paradise. Would you let a surgeon operate
on you if you knew he was taking illegally obtained painkillers not only because he was addicted
to them but to make sure that his pain would not interfere with his control of the scalpel?
In any event, Mr. Camposecco’s sensitivity is not surprising in a milieu that family lawyers may
find normal but is unusually provocative, hostile and deeply offensive to the litigants themselves.
We can certainly understand why a lawyer or two might find allusions to blackmail distasteful.
Perhaps only an unsophisticated party would take the veiled threat seriously; Mr. McCleod, who
had a duty to tell his client about it, and even to report his colleague to the The Florida Bar, had
in effect told his client not to worry about it.
Mr. Eckert denied the “blackmail” charge. He said he had discussed the matter with his longtime
colleague Mr. McLeod, and he concurred that there had been no threats as claimed. He said he
certainly would not make such a threat to Mr. McLeod; after all, he had known him for decades,
had been employed by his father and even became a partner of his father.
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It is reasonable to infer then that he knew such a threat would be unethical or criminal. Knowing
someone for a long time does not preclude one from engaging in unethical behavior; it may even
indispose one to report it as per “RULE 4-8.3 REPORTING PROFESSIONAL MISCONDUCT
(a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has
committed a violation of the Rules of Professional Conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the
appropriate professional authority.”
He said that he had conferred personally with Mr. Camposecco only at the request of Mr.
McLeod even though that was a procedure contrary to almost any case he had had in his career.
As a matter of fact, the Rules of Professional Conduct permitted the communication: “RULE 44.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL (a) In representing
a client, a lawyer shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer….”
He denied that he had had anything to do with Mr. McLeod’s withdrawal from the case; besides,
Mr. McLeod had taken that case to trial for Mr. Camposecco anyway.
In any case, Mr. Eckert was obviously deeply offended by the blackmail accusation. On June 24,
2009, in a letter to The Florida Bar, he objected to the reinstatement of a complaint that had been
closed, and especially to the charge of blackmail which he claimed was defamatory. On July 9,
2009, he wrote a letter to Mr. Camposecco, threatening to sue him for defamation and damages
unless he withdrew his Bar complaint and issued a letter of apology within five days.
“You have filed a baseless complaint against me with the Florida Bar, charging
me, among other things, with bribery and extortion. This letter, then, is to put you
on notice, that unless you withdraw such charges, plus issue a letter of apology,
within 5 days from July 10, 2009, which is the statutory time, you will be sued for
defamation of character, among other matters, and you will be held responsible
for all damages. Please consult with an attorney of your own choosing about these
matters, but I hereby advise you that Mr. Phillip McLeod, Esq., will be called as a
witness by my attorney. Please be governed accordingly.”
It appears that Mr. Eckert may have intended his reference to “the statutory time” to appertain to
§836.07 Fla. Stat. under the main heading “Defamation; Libel; Threatening Letters and Similar
Offenses”:
“836.07 Notice condition precedent to prosecution for libel. – Notice condition
precedent to prosecution for libel. – Before any criminal action is brought for
publication, in a newspaper periodical, of a libel, the prosecutor shall at least 5
days before instituting such action serve notice in writing on defendant,
specifying the article and the statements therein which he or she alleges to be false
and defamatory.”
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Defamation is a misdemeanor offense of the second degree under the criminal statute.
However, there is a way out:
“836.08 Correction, apology, or retraction by newspaper. – (1) If it appears upon
the trial that said article was published in good faith; that its falsity was due to an
honest mistake of the facts; that there were reasonable grounds for believing that
the statements in said article were true; and that, within the period of time
specified in subsection (2), a full and fair correction, apology, and retraction was
published in the same editions or corresponding issues of the newspaper or
periodical in which said article appeared, and in as conspicuous place and type as
was said original article, then any criminal proceeding charging libel based on an
article so retracted shall be discontinued and barred.”
Mr. Camposecco only published his complaint to The Florida Bar; it was not published in a
newspaper for which Mr. Camposecco was responsible, so it is difficult to understand why Mr.
Eckert would refer to an inapplicable statutory limit of five days as provided by the criminal
statute. In our lay opinion, a defamation action does not have to be based on a criminal statute,
but may be a tort action appertaining to an injury not due to a breach of contract, hence may be
brought as a civil suit, where the statute of limitation is far more than five days. There is a
similar reference to a 5-day period in Chapter 770 of the Florida Statutes (“Civil Actions for
Libel”), and that chapter is also very clearly limited to newspapers, radio and broadcast media.
The Devil’s Advocate might argue that Mr. Eckert added to the blackmail originally alleged with
more blackmail; that he wished to imply that Mr. Camposecco had committed the crime of libel
or the tort of defamation, accusing him of such in order to get him to drop the complaint. But
then his demand, if maliciously made, might constitute an extortionate letter or blackmail
according to the same §836.05, which is punishable as a felony.
Mr. Camposecco was frightened by the threat: he withdrew his Bar complaint on July 13, 2009:
“Mr. Eckert, after further thought and consideration, I have decided not to pursue
my complaint against you with The Florida Bar. At this time of my life there are
much more important things to take care of and so little time left to do it all. So,
once again, consider this matter closed as far as I’m concerned. Perhaps you
should consider closing the debt matter against me as well.”
Nevertheless, on December 30, 2009, the Sixth Judicial Circuit Grievance Committee found
probable cause for further disciplinary proceedings, that the Respondent had violated Florida
Bar: Rule 4-8.4(d), stating that a lawyer shall not engage in conduct in connection with the
practice of law that is prejudicial to the administration of justice. The probable misconduct was
stated as: “On or about July 9, 2009, Respondent wrote a letter to a complainant threatening to
sue him for defamation and damages unless he withdrew his Bar complaint and issued a letter of
apology within five days.”
Apparently no probable cause was found that “blackmail” or “extortion” or “bribery” had been
committed as originally alleged or that the personal contact with opposing counsel with Mr.
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Camposecco was unethical. We find nothing on the public record provided to us actually
discussing and dismissing those charges. At this writing (May 3, 2011) The Florida Bar is
checking its files to see if part of the public file was not made available to us.
On December 11, 2010, Mr. Camposecco tendered a Conditional Guilty Plea. The referee in the
case recommended that Mr. Camposecco be found guilty, that he be publicly reprimanded and
pay $1,366.50 expenses in the case. On January 27, 2011, the Supreme Court approved the
uncontested referee's report and reprimanded Mr. Eckert.
So here we have, in The Florida Bar v. James Daniel Eckert, a finding of probable cause and a
guilty plea for an infraction that was not part of the original complaint but occurred during the
course of the investigation. Therefore it appears that the complaint as to this particular offense
was probably initiated orally by someone at the Florida Bar who was familiar with the leading
cases, Stone v. Rosen and Tobkin v. Jarboe, although the public bar record we have on hand
makes no mention of those cases or to the Florida common law expressed therein that complaints
to the Florida Bar about lawyer misconduct are absolutely privileged if not published elsewhere,
therefore the complainant is immune from defamation and/or malicious prosecution suits
whether his allegations are true or false.
When Karen Boroughs Lopez, the bar counsel or prosecutor in the Eckert case, and Kenneth
Marvin, Director of Lawyer Regulation, were asked who initiated the charge upon which the
guilty plea was had, they would only respond with a copy of Rule 3-7.4(c) under “Grievance
Committee Procedures” – “Investigation. A grievance committee is required to consider all
charges of misconduct forwarded to the committee by bar counsel whether based upon a written
complaint or not.” The record of our communication with Ms. Lopez is as follows:
WALTERS: I have reviewed the public record on the Eckert case, and see nothing
therein that would indicate who brought the particular charge on which Mr.
Eckert was found guilty i.e. of threatening Mr. Camposecco with a defamation
suit. Apparently no probable cause was found for charging Mr. Eckert for the
accusations brought by Mr. Camposecco, that of "blackmail" and that of
contacting him without benefit of counsel present. The threatening letter, you will
recall, came much later, after the case was reopened. Therefore, I am left
wondering if the Bar itself, under its own initiative, brought the charge for which
Mr. Eckert was disciplined, and if so, whom? Your good self? Mr. Marvin?
LOPEZ: Under the rules established by the Supreme Court (copy appears below,)
all matters are considered by the grievance committee. Those matters that result in
a probable cause finding are then brought before the Supreme Court via a
complaint process that is also outlined in The Florida Bar Rules Regulating The
Florida Bar. The Florida Bar becomes the complainant at that level, also per rule.
I hope this answers your questions. All of the Rules can be found on the Florida
Bar's website.
WALTERS: Yes I understand. My question is, in context of the discussion with
Mr. Marvin, as to who knows such threats of defamation-malicious prosecution
are barred? Mr. Eckert and his attorney with 80 years of experience between them
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THE MIAMI MIRROR – TRUE REFLECTIONS
did not know. So who at the Bar knew and proposed the charge against Eckert? I
am writing a book about how the Bar ignored a horrendous case where the
complainant directly accused the lawyer in his complaint of this kind of implicitly
prohibited behavior, yet his complaint was purportedly dismissed because he was
rude because the Bar did nothing for months, even when latent death threats and
false police reports were added to the complaint. Further, my suggestion to add a
Rule barring lawyers from making defamation and/or malicious prosecution
threats have been ignored by the Bar and Supreme Court. I can tell you that many
lawyers know nothing of the common law prohibition. Given that neither the
raising nor the discussion of the issue appears anywhere on the Eckert file, it is a
fair question of WHO knew, WHO brought it up? That way I can give credit to
the person who knew, as this matter is becoming a matter of nationwide interest.
Thanks!
LOPEZ: I am not sure what you are asking. However, Mr. Camposecco filed the
complaint.
WALTERS: Mr. Camposecco did not complain about letter threatening
defamation suit, at least not on the record. I am asking WHO at the Bar decided to
press that issue? Thanks.
LOPEZ: Bar counsel can send matters to the Grievance Committee and as per the
rules, the committee considers all matters even if the complainant does not
complain about a particular aspect of a case. There is an investigative process that
occurs and is conducted in each case. Each case is different as and unique, even if
at first brush, it might look the same. It can be confusing but when dealing with
human conduct there are many variables. I hope this helps.
WALTERS: Thank you. Do you recall when you yourself found out that
threatening Bar complainants with defamation and malicious prosecution is
against RULE 4-8.4(d)? Or that common law provides absolute privilege for Bar
complaints hence such threats would be unethical?”
LOPEZ: No.
I noticed that Mr. Eckert was admitted to the Bar in 1965, which gave me cause to wonder if he
was up to date on case law involving the defamation/malicious prosecution of persons who file
complaints against attorneys. In an April 25, 2011, email to Kenneth Marvin, whose name was
on the Eckert documents and who had sent out letters in the past citing and attaching copies of
the decision in Tobkin v Jarboe, I wondered if all attorneys had been advised on the
developments by way of continuing education, and why a specific Bar Rule had not been
promulgated on that point instead of reliance on a the prosecutor’s discretion of what prejudices
the administration of justice – a sort of catch-all rule – noting that my suggestions for such a rule
had been ignored. Threatening someone with a lawsuit for making a Bar complaint certainly
would seem to be “prejudicial to the administration of justice,” but it would seem that whatever
is definitely known to be prejudicial should be specified so all may know in advance what the
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rule is. Otherwise, god-like discretion is afforded the prosecutor. By way of analogy, could a
criminal prosecutor charge someone with obstructing justice because s/he filed a complaint
against an officer of the court with the court’s disciplinary arm?
“How would all Florida attorneys know that complainants have absolute immunity in respect to
complaints filed against them?” I inquired of Mr. Marvin, and asked him for a copy of the Bar
file.
“Good question,” he responded. “How does anyone know what the law is? Yet, we are all
responsible to conform our conduct to the law's requirements.”
“When I was a kid,” I said, “the judge who made me wash police cars said that ignorance of the
law is no excuse. I wonder that so many laws are being passed every day that I must be breaking
some of them without knowing it.”
“If you look at the volume of Florida Statutes it is overwhelming. I doubt that any citizen would
know 50% of what’s in there,” said Mr. Marvin – I believe the percentage would be more like
10%).
Once I had the Eckert file in hand, the first thing I laid eyes on were certain remarks made by the
attorney representing him in the case, one George M. Osborne. On August 1, 2010, in his answer
to the complaint against his client, he addressed Bar Counsel Karen B. Lopez and Kenneth
Marvin. He said he knew Eckert very well, that they were both graduated and admitted to the Bar
in 1965 and had practiced law a half block from each other for forty years. He said that Eckert
was a great lawyer, and cited his virtues at length. As for the immunity someone had against
being sued for defamation for filing a complaint with the Bar:
“I did not know of the immunity established in the case you kindly provided….
Jim is clear that he should not have written the letter. Had he known the rules it
would have been him delivering a retraction and apology despite having been
besmirched.”
Furthermore, in a September 1, 2010, letter to Karen Lopez:
“Do you give any credence to the points of my Answer, or do you think as a
matter of fact and law that not knowing about immunity and writing a letter
demanding a retraction of defamation and threatening suit for failure to retract
definitely and automatically and unqualifiedly subjects a lawyer to discipline? If
you do, there’s the rub, and I would like to know how you get to that conclusion. I
await your response with great interest – I am still open at this age to learn
something new…. I trust you understand I am hard pressed to think that the Court
expects a lawyer to be perfect. In 45 years at the Bar, neither of us ever heard of
this, never were exposed to it in required ethics CLE, and believe that this is true
for most attorneys.”
And we find this within the August 1, 2010 Answer to Complaint made by Mr. Osborne for Mr.
Eckert:
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“…. the Inquiry/Complaint was false and wrongfully impugned Respondent's
integrity, and was withdrawn by him, Robert Camposecco, while the postdissolution matter was pending for reasons other than, are at least in addition to,
his receipt of the letter identified in paragraph 4 of the subject complaint. Further,
before he withdrew his Complaint, Mr. Camposecco was advised by The Florida
Bar in substance that he could not suffer civil liability for having made a
complaint, and he communicated this information to Respondent who accepted it
as true, and, of course, took no action against Camposecco although he did not
then know that unqualified immunity had been decided by The Supreme Court of
Florida. It submitted that it is fair to note that none of the 100 plus cases cited
under Rule 4-S.4(d) involve a holding that the "administration of justice" as used
and intended in the Rule is operative when an Inquiry/Complaint has been filed,
and your Respondent's undersigned attorney has found no case that establishes
such a Rule, and respectfully suggests that the plain meaning and intent of the
Rule does not appear to include the concept that the administration of justice is at
work initially when an Inquiry/Complaint has been filed….
“….Respondent says further that had he known that unqualified immunity
protected even a wrong-headed or improperly motivated Inquiry/Complaint he
would never have even considered suit, much less written a demand for retraction
and apology…. Respondent denies any implication or inference that he knowingly
or with reckless indifference, indeed, with any indifference, took action that was
contrary to proper practice and inconsistent with the highest aspirations of the
profession. However, Respondent answers further that he certainly knows it is
fundamental that a lawyer should not threaten an action which he knows cannot
be effective as a matter of fact or of law, and, if as a matter of law the Court
determines that he should have known about the principle of unqualified
immunity, then he was not simply in error but would be in the wrong to send the
letter and if it is also determined that the Rule is operative at the stage of an
Inquiry/Complaint, then he is subject to discipline….
“…. Respondent regrets his ignorance of unqualified immunity, and wishes that
he knew it had been determined. He respectfully observes that he believes many
lawyers are not aware of it, and having served as chair of the Pinellas County
grievance committee for three years, and as a ten year member of a committee of
the St. Petersburg Bar Association to long ago deal with grievance matters,
respectfully relate that the idea and issue never arose. He believes the
Inquiry/Complaint was not only unjust, but was improperly motivated as a tactic
in his case and by his animosity toward his former wife and his aversion to
paying….”
Apparently Mr. Osborne was unaware of the fact that the complaint withdrawn by Mr.
Camposecco was reasserted by him and officially re-opened by The Florida Bar. We found no
answer to Mr. Osborne’s questions on the defamation subject put to Ms. Lopez, and we found no
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exoneration of Mr. Eckert on the accusations of wrongful communication and blackmail, so we
presented this letter to The Florida Bar:
May 03, 2011
Kenneth Marvin
Director of Lawyer Regulation
Karen Boroughs Lopez
Bar Counsel
THE FLORIDA BAR
Re: Rule 4-3.4(g)
Florida Bar v. James Daniel Eckert (SC10-1308)
Florida Bar v. Knowles (SC09-403)
Dear Counselors:
As you know, Robert Camposecco accused Mr. Eckert of two violations of the
Bar Rules in his complaint: blackmail, and wrongful communication with an
opposing lawyer’s client. However, neither of those accusations were addressed
and disposed of on the public record that was provided to me. Instead, counsel
initiated a third accusation and made it a charge; that Mr. Eckert, during the
course of the investigation, threatened to sue Mr. Camposecco for libel for
petitioning the Bar for redress of his two grievances. Mr. Eckert pled guilty to that
charge and was reprimanded.
It is obvious that the wrongful communication accusation was not an ethical
violation inasmuch as the Rules provide for communication with an opponent’s
client provided that his lawyer permits it, as the lawyer did in this case. Still, there
is nothing on the public record provided to me that exonerates Mr. Eckert in
regards to the complaint that he wrongfully communicated with Mr. Camposecco.
Of more serious concern is the blackmail charge, which I think should have been
pursued, based on the evidence presented by the complainant, according to Rule
4-3.4(g), A lawyer shall not…. (g) present, participate in presenting, or threaten to
present criminal charges solely to obtain an advantage in a civil matter….”
As we see in Florida Bar v. Knowles, “the respondent was guilty of threatening to
present criminal charges solely to obtain an advantage in a civil matter, conduct
which is expressly prohibited by Rule Regulating the Florida Bar 4-3.4(g). Such
misconduct by its very nature causes harm to the legal system. The respondent
was chargeable with knowledge of the rule prohibiting this misconduct.”
I suppose one might call the conduct prohibited a kind of “extortion” or
“blackmail.”
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In Florida Bar v. James Daniel Eckert, the defendant and his attorney had never
heard of the prohibition against threatening Bar complainants with defamation
suits, nor was that behavior expressed barred by the catchall Rule barring conduct
“prejudicial to the administration of justice.”
In Eckert, there is no dispositive discussion of the blackmail issue on the public
record that I have obtained. Usually one would find on that record at least a letter
to the complainant stating that there was no probable cause to charge and try the
accused, along with the reasoning behind that decision. Since the “blackmail”
accusation is itself on the public record, and blackmail is a serious crime, I believe
that the accusation should not be dropped into the abyss without words
exonerating the accused; at least the public record should include a declaration
that there was no probable cause to bring the charge, and the reasoning behind
that decision should be provided.
Coincidentally, the reasoning behind the common law foundation of the charge
Mr. Eckert pled guilty to is that, although baseless accusations against lawyers
may still damage their reputations when the cases against them are dismissed and
published, that is outweighed by the greater good of encouraging complainants to
come forward without fear of retaliation; innocent lawyers have some solace in
knowing that their exoneration is also published.
For all I know, the blackmail accusation may still be under investigation, or
perhaps The Florida Bar did not forward the entire public record to me as
represented. I certainly do not want to put this matter to bed thinking that the
prosecutorial power has in any way been arbitrarily or capriciously exercised. I
would rather believe that I am ignorant of the law and its processes and that my
sources are inadequate, or that some honest mistake has been made. It is to that
end that I pray for enlightenment and stand by for your response.
Sincerely,
David Arthur Walters
Journalist
Mr. Marvin advised us that Ms. Lopez had voluntarily left The Florida Bar and that he had sent
our letter to her supervisor to determine whether we are missing some of the public record. What
was purportedly the complete file was then forwarded to us. Some of the material previously sent
was not therein, and some of the material in the file had not been received previously. However,
the question remained, and was resubmitted to Mr. Marvin with a proposed answer:
WALTERS: Is this statement correct? A Florida Bar prosecutor does not have to
formally investigate accusations brought and provide a formal finding of no
probable cause on each one of them, but can simply ignore the original complaints
if s/he wishes and initiate and prosecute another complaint instead. So the public
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record may have, for example, (blackmail) written all over it, with no declaration
that the accused was exonerated. The public is simply to construe the absence of
an investigation and charges on accusations as findings of no probable cause.
MARVIN: Please see the last section of the rule [below], however you should
note that this case was not dismissed and that it would be inaccurate for you to
think that because certain allegations of the complainant were not pursued that
means that the case was dismissed. You have no reason to state that bar counsel
ignored the original allegations. They were investigated and it was found that
there was insufficient evidence to proceed further. While I agree that it would
make a cleaner record if there were some documentation that the original
allegations were dismissed, it is also clear that the matter was sent to the
grievance committee on one rule violation and it is also clear that the complainant
was sent a copy of the formal complaint.
Last Section of Rule 3-7.3 (d) Dismissal of Disciplinary Cases. Bar counsel may
dismiss disciplinary cases if, after complete investigation, bar counsel determines
that the facts show that the respondent did not violate the Rules Regulating The
Florida Bar. Dismissal by bar counsel shall not preclude further action or review
under the Rules Regulating The Florida Bar. Nothing in these rules shall preclude
bar counsel from obtaining the concurrence of the grievance committee chair on
the dismissal of a case or on dismissal of the case with issuance of a letter of
advice as described elsewhere in these Rules Regulating The Florida Bar. If a
disciplinary case is dismissed, the complainant shall be notified of the dismissal
and shall be given the reasons therefor.
There we have it from the Director of Lawyer Regulation’s mouth: the case itself was not
dismissed because the complaint brought by The Florida Bar itself was pursued and resulted in a
guilty plea, and the complainant was sent a copy of that complaint. The original two accusations
brought by Mr. Camposecco were allegedly investigated and dismissed for lack of probable
cause, although there is no written record of the investigations and dismissals – to the best of our
knowledge, based on two versions of the public record, no letters advising that no probable cause
was found to bring charges on the first two accusations were issued as per the Rules. Of course
the record would be cleaner with documentation; that is, people interested in the conduct of The
Florida Bar and the regulation of the legal profession could get a clearer picture of what is going
on.
Mr. Marvin could not say exactly how many charges had been brought against attorneys for
threatening to sue or actually suing Florida Bar complainants for defamation or malicious
prosecution for bringing complaints against them. He said there is no code for that type of
offense, and that, from the “seat of his pants,” he could say that not many such complaints had
been made. According to George M. Osborne’s study, none had been made prior to the charge
brought against his client Mr. Eckert. If that is true, we may have a leading Florida Bar case in
The Florida Bar v. Eckert.
Requests to the Florida Bar and the Supreme Court of Florida to promulgate an actual Bar Rule
or to amend Rule 4-8.4(d) to expressly prohibit retaliatory SLAPP-like suits (Strategic Lawsuits
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Against Public Participation) are routinely ignored. Further, the lawyer-packed Florida
legislature is prejudiced against any constitutional measure that might effectively restrain the
“inherent powers” of the “independent judiciary.” Any effort to transfer lawyer discipline to the
executive branch, as was done in the mother country recently, would be treasonous blasphemy.
The Florida Bar will merely state that defamation suits against those who lodge complaints
against its licensed attorneys may not be successful provided that the complainant does not
publish the complaint elsewhere – even so, the publication may be privileged since a Bar
complaint in Florida is a public record. That is, if you have the immediate means to defend
yourself, several hundred thousand dollars, against the malicious prosecution of suits, you may
not be “successfully” prosecuted for defamation.
Now, then, in the Eckert case, since we have no way of knowing from the file why the
prosecutor dismissed the original accusations, and the matter is left to the traditionally
revolutionary press because the establishment’s media is too cowardly to criticize the institution
that protects it, we shall dismiss them ourselves; to wit: In respect to the allegedly improper
communications with an opponent’s clients: the communication was had with the consent of the
client’s lawyer, which is proper according to Rule 4-4.2(a). As for the allegation of blackmail i.e.
threatening to introduce a criminal matter to obtain advantage in a civil matter: although the
revelation of a request to obtain illegal pills may have been embarrassing if such a request were
actually made, such a request in itself may not constitute a crime; if the request to obtain illegal
pills were a criminal matter, the revelation of that matter in the civil case would be proper
because the criminal matter and the civil matter were related inasmuch as spending money on
illegal activities, which are presumably unnecessary since prohibited by law, would have a
bearing on the ability of the petitioner in the civil case to make alimony payments to his ex-wife.
The petitioner’s attorney properly limited any discussion of the illegal pills matter to the public
record, i.e. the deposition. Mr. Eckert denied that he intended to or did make an illegal threat. If
there were any extortion here, it is legalized by American Bar Association Opinion 92-363. The
ABA abjures extortion but would not carefully define it since that might unduly restrain the
extortionate trade.
##
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