Florida Supreme Court Suspends Witness-Coaching Attorney for 91 Days

The Florida Supreme Court has suspended a workers’ compensation defense lawyer for 91 days after he was caught coaching a deposition witness through text messages, then being less than candid about it to a judge.

Derek James, of Maitland, Florida, now has 30 days to put his practice on hold. The court overrode a judicial referee’s recommendation that James be suspended for only one month, noting that James’ misconduct continued after he was called out by the claimant’s attorney.

“Particularly egregious was his failure to be forthright with the judge of compensation claims about sending the text messages,” the per curiam decision reads.

James, who is in his late 40s, also must pay $2,852 in costs.

“He feels terrible about it, and he’s going to do everything by the book to get reinstated as soon as possible,” attorney Barry Rigby, who represented James in the proceedings, told the Insurance Journal.

Rigby said James is still associated with the Jones, Hurley and Hand law firm, which has offices around the state. James is no longer listed on the firm’s website, however. A call to James at the firm was not returned Friday morning. Rigby said the firm has been “really decent about the whole thing,” but that James will now have to notify his clients, which could prove costly.

The infraction came in 2018, but some attorneys have said that they have suspected similar text-message coaching has increased during the COVID-19 pandemic, thanks to the widespread use of video and conference-call depositions and less in-person testimony. Rigby noted that the Supreme Court justices may have recognized those concerns and probably felt that they had to suspend James in order to crack down on the practice.

In July 2018, Renee Gray, a Sedgwick Claims Management claims adjuster for the employer in a workplace injury case, was in a telephone deposition. Because it was a phone conversation, not a video deposition, the court reporter refused to swear in the witness. On the three-way call was James and the claimant’s attorney, Toni Villaverde, of Coral Gables.

Villaverde said she could hear typing sounds and a “whoosh” sound that often accompanies text messages on smartphones. When she asked James if he was texting the witness, he said, “no,” that he was texting with his daughter, according to court records in the case. Villaverde asked James to stop texting and put his phone away, and he agreed.

After a break, the deposition resumed. That’s when James inadvertently sent Villaverde a string of text messages that were intended for the adjuster, the court explained. These included: “Just say it anyway;” “Just say 03/28;” and “Don’t give an absolute answer.”

Villaverde stopped the deposition and filed a motion with the compensation judge asking James to produce all the texts he sent. The judge agreed. James produced two pages of texts messages, but none of them were from his daughter. He later claimed that he didn’t know how to retrieve those messages.

The comp judge also determined that James’ text messages were sent during the deposition, not during a break, as James had said.

The Florida Bar’s grievance committee investigated. A referee appointed by the high court, Circuit Judge Gerald Hill, in October 2020 recommended a 30-day suspension. The referee noted that James had no prior disciplinary history and had a “good character and reputation,” the court explained. The Bar disagreed with the referee and urged a tougher sentence.

This is the second time in a month that the state Supreme Court has overruled a referee’s recommendation and imposed more stringent sanctions against an attorney. In late October, the court disbarred an Orlando plaintiffs’ lawyer, Karl Koepke, for deceiving a trial court and failing to comply with a subpoena in his own alimony case. A judicial referee in the case had recommended a one-year suspension.

Coaching a witness is particularly troubling, law professors and the Supreme Court have said. But the pandemic and the reliance on remote depositions and hearings may have led to a rise in the practice.

“I suspect that all the time,” Mario Arango, a Miami workers’ comp claimants’ attorney, said recently.

In the James decision, the Supreme Court did not mince words.

“James engaged in conduct aimed at defeating the opposing party’s lawful attempts to obtain evidence, undermining the adversarial process, and as a result, the trial court’s intervention was required,” the court’s opinion, released Thursday, reads. “He then made misrepresentations to cover up his misconduct. However, we disagree with the referee’s conclusion that James’s conduct was not sufficiently egregious to warrant a more severe sanction.”

Justices Alan Lawson and Jamie Grosshans concurred in part and dissented in part, noting that the court in most cases has made a point of not second-guessing a referee’s recommendations.

Rigby said James had been “sloppy and casual” during the deposition, in part because the witness had not been sworn in.

Topics Florida