Lawyer deemed an ‘overzealous advocate’ is suspended for altering photos of police lineups

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Ethics Lawyer deemed an 'overzealous advocate' is suspended for altering photos of police lineups

By Debra Cassens Weiss

February 23, 2022, 2:00 pm CST

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The Florida Supreme Court has suspended a Miami criminal defense lawyer for altering photos of police lineups that were shown to a robbery victim during a deposition.

The state supreme court imposed a three-year suspension on lawyer Jonathan Stephen Schwartz in a Feb. 17 opinion for his apparent attempt to undermine the victim’s ID of his client, the robbery defendant.

“We reiterate that the requirement to provide zealous representation, as contemplated under our ethical rules … does not excuse engaging in misconduct, irrespective of one’s intent to benefit the client,” the Florida Supreme Court said.

Schwartz had made black-and-white photocopies of police photo lineups for two exhibits. In one photo, Schwartz replaced his client’s face with a picture of another person identified as the perpetrator by other witnesses. In another, Schwartz changed his client’s hairstyle.

The photocopies still included the victim’s identification of the defendant, including her circle around what had been the defendant’s picture and her signature at the bottom of the lineup. A police officer’s signature was also included.

The first referee to consider the matter had concluded that Schwartz didn’t violate any ethics rules. The Florida Supreme Court rejected that conclusion in November 2019, saying Schwartz’s conduct violated ethics rules barring conduct involving dishonesty, fraud, deceit or misrepresentation. A second referee recommended a 90-day suspension, followed by a year of probation.

In its latest opinion, the Florida Supreme Court rejected the second referee’s recommendation as too lenient. The state supreme court said Schwartz had been disciplined previously, including one case in which he received a 90-day suspension.

Schwartz received the suspension in 2012 for twice notarizing an affidavit with the signature “JS for E. Ocampo.” Schwartz’s client, who was out of the country, was required to sign the affidavit.

Schwartz also received public reprimands in 2002 and 1997 and an admonishment in 1995.

“In the instant case, we are of the opinion, in light of Schwartz’s history of repeated transgressions and the increasing egregiousness of each infraction, that he has been an overzealous advocate incapable of seeing the forest for the trees,” the Florida Supreme Court concluded.

In mitigation, Schwartz displayed a cooperative attitude and presented evidence of good character.

Schwartz is disappointed with the decision to suspend him for his conduct while representing “an innocent client,” according to a statement released to the ABA Journal.

“Jonathan accepts the decision of the court and notes that he is not the same lawyer who made the litigation mistake in 2015,” the statement said. “He apologized for his misconduct and explained that he did not and never intended to mislead anyone. He was only trying to show that the complaining witness had misidentified his client.”

The statement said Schwartz “has made vast improvements in his litigation practices” since the deposition seven years ago.

“He has implemented thoughtful and effective strategies to ensure that he serves his criminal defense clients honorably while working within the clear boundaries of the professional rules,” the statement said.

“Jonathan intends to do his best during his period of suspension to reassure the court and the public that he is and will be an upstanding member of the Florida Bar upon his readmission to practice,” the statement said.

Hat tip to Law360, the Legal Profession Blog and Law.com, which had coverage of the suspension.

Updated Feb. 23 at 2:45 p.m. to include Schwartz’s statement.

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