FLORIDA BAR vs. MORGAN
Supreme Court of Florida
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No. SC04-1438
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THE FLORIDA BAR,
Complainant,
vs.
KAYO ELWOOD MORGAN,
Respondent.
[June 22, 2006]
PER CURIAM.
We have for review a referee's report regarding alleged ethical breaches by Kayo Elwood Morgan. We have jurisdiction. See art. V, § 15, Fla. Const.
For the reasons that follow, we approve the referee's findings and recommendation of a ninety-one-day suspension.
Facts and Recommendations
The Florida Bar filed a complaint against Morgan alleging he violated several of the Rules Regulating the Florida Bar by inappropriate courtroom behavior. A referee was appointed. After holding a hearing, the referee issued a report making detailed findings, summarized below.
Morgan represented a felony defendant in a circuit court trial. During the cross-examination of a prosecution witness, Morgan asked the witness how she was dressed on the occasion in question. The prosecution objected to the relevancy of the question. The court sustained the objection. At that point Morgan raised his voice and told the judge he did not understand why the judge was interfering with his cross-examination. This exchange occurred in front of the jury. The judge excused the jury. Morgan continued to speak in a loud and angry manner and to pace back and forth. The following exchange took place:
The Court: Mr. Morgan, I want you both to-
Mr. Morgan: I am moving for a mistrial.
The Court: Mr. Morgan, I am not going to-
Mr. Morgan: Don't treat me like that in front of a jury.
The Court: I sustained an objection, and you-
Mr. Morgan: No judge treats me like that, in front of a jury.
The Court: I heard the way you treat other judges, and I don't appreciate it.
Mr. Morgan: I don't care how you think I treat other judges. You don't treat me -- you treat me with respect. I treat you with respect. I don't care what you think about other judges.
The Court: Please come up, kindly. Please come up, sir.
Mr. Morgan: No, I'm staying right here.
The Court: I think you are out of line, sir.
Mr. Morgan: I think you are out of line. That's what I think. You don't talk to me like that in front of a jury.
The Court: You don't have to talk any further. Are you going to continue? I sustained the objection, for the record.
Mr. Morgan: Wait a minute.
The Court: If you continue we will have a contempt hearing. I don't want to go through this again.
Mr. Morgan: I object.
The Court: You are not going to pull stuff in my court without being- receiving-
Mr. Morgan: So you think I am pulling something on you, Judge Glare?[1]
The Court: I think you are not respectful. I've never heard anyone-
Mr. Morgan: You are not respectful to me.
The Court: I have sustained an objection. I don't want you to talk for one moment. I am controlling this courtroom. I am the judge here.
Ultimately, the trial court agreed to let Morgan make a proffer. During Morgan's questioning of the witness during the proffer, the prosecution objected that the proffer exceeded the scope of the subject of the proffer, which the judge sustained. At that point, the following exchange occurred:
[The Prosecutor]: Judge, now it's gone beyond the proffer. It's gone beyond the item of clothing.
The Court: I don't know what he is doing.
Mr. Morgan: Now, wait a minute.
The Court: I have already ruled.
By Mr. Morgan:
Q. Were you dressed properly for the inside of that bar?
The Court: Hold it, one second.
The Witness: Yes.
The Court: Hold it. I have ruled.
By Mr. Morgan:
Q. How do you know?
The Court: I want you to stop now. What's the matter with you?
Mr. Morgan: She answered something.
The Court: I am the judge here. Now, you continue, I am going to have you arrested.
Mr. Morgan: Go ahead and have me arrested. What are you threatening me for? I want a mistrial. Take me to jail and let's go with it. I want my mistrial. You don't talk to me like this. It's not going to happen.
The Court: Mr. Morgan?
Mr. Morgan: No, I am not going to be talked to like that, by you or anyone else, when I'm defending somebody in a felony case. It's not going to happen.
The Court: You are out of line. I don't want to hear anything further, here.
Mr. Morgan: Well, I move for a mistrial.
The Court: What you want to do?
Mr. Morgan: You are prejudice [sic].
The Court: And you are obnoxious.
Mr. Morgan: So what?
The Court: You can't be obnoxious in a courtroom to a judge.
Mr. Morgan: You are obnoxious to me.
The Court: I don't want to talk with you any further. You are not going to get me excited, sir.
Based on the facts above, the referee found Morgan violated rules 4-3.5(c) (conduct intended to disrupt tribunal) and 4-8.4(d) (conduct prejudicial to the administration of justice) of the Rules Regulating the Florida Bar. He further found several aggravating factors, including prior disciplinary offenses, a pattern of misconduct, a refusal to acknowledge the wrongful nature of his conduct, and substantial experience in the practice of law. Morgan has been disciplined twice before for similar misconduct. The first time he was publicly reprimanded for making several intemperate or derogatory remarks to and about the judiciary in 1995 and 1996. See Fla. Bar v. Morgan, 717 So. 2d 540 (Fla. 1998). The second time he was suspended for ten days for making statements that he knew were false or with reckless disregard of their truth or falsity about the qualifications or integrity of a judge in January 2000. He was also ordered to complete the Bar's ethics school. See Fla. Bar v. Morgan, 791 So. 2d 1103 (Fla. 2001).
In mitigation, the instant referee considered Morgan's character and reputation, noting that Morgan has provided pro bono legal services, has served as a role model for an assistant state attorney, and is perceived by two judges and an attorney as an excellent and passionate advocate.
As to discipline, the referee recommended a ninety-one-day suspension, which would require Morgan to establish rehabilitation before he could return to the practice of law.[2] Morgan petitioned for review, arguing that the recommended sanction is too severe.
Analysis
Because it is ultimately the Court's responsibility to order the appropriate sanction, we review a referee's recommendation as to discipline of an attorney more broadly than the referee's findings of fact and recommendations as to guilt. Fla. Bar v. Miller, 863 So. 2d 231, 235 (Fla. 2003); Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, ' 15, Fla. Const. However, the Court generally will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. Miller, 863 So. 2d 231, 235 (Fla. 2003); Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).
Morgan points to the facts that the conduct occurred outside the presence of the jury and that the trial judge did not hold him in contempt or lodge a complaint against Morgan with the Bar. Morgan further argues that the referee gave insufficient weight to the mitigating evidence and too much weight to the aggravating evidence. He maintains his conduct was not as egregious as the conduct seen in cases where a ninety-one-day rehabilitative suspension was imposed.
Contrary to Morgan's argument, a ninety-one-day suspension has a reasonable basis in existing case law and the standards. Standards 6.22 (providing that a suspension is appropriate for knowingly violating a court order or rule, causing injury or potential injury to a client or party) and 7.2 (providing that a suspension is appropriate for knowingly engaging in the violation of a professional duty, causing injury or potential injury to a client, the public, or the legal system), which the referee cited, support the imposition of a suspension. Standard 8.1 even supports disbarment. That standard provides that disbarment is the appropriate discipline when a lawyer â€
