IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR Case No.: SC10-1731 [TFB No. 2011-30,299(09E)(CRE)] IN RE: PETITION FOR REINSTATEMENT OF JAMES ELLIS HENSON, Petitioner. / REPORT OF REFEREE THIS CAUSE came on to be heard before the referee on December 8, 2010, in the Orange County Courthouse, Orlando, Florida. Present before the referee were the petitioner, James Ellis Henson, and his attorney of record, Barry Rigby. The Florida Bar was represented by Kenneth H.P. Bryk. The referee received testimony from Flora Butler, Timothy Shane DeBoard, Retired Circuit Judge Jeffords Miller, James Henson (son of the petitioner), James Ellis Henson (the petitioner), Peyton Lea, Ted Johnson, and Lisa Franchina. The referee also considered the evidence submitted in the form of The Florida Bar s Exhibit Notebook containing Exhibits A, B, C and D, and Petitioner s Composite Exhibit 1 consisting of a DVD of petitioner s presentation in November, 2007, to law
students of Stetson University and letters from Michael A. Farley, Assistant Dean for Student Life, and from attorney William Reese Smith, Jr., who also spoke at the same program and petitioner s Exhibit #2, letter recommending reinstatement from Lisa Franchina. From the foregoing, the referee finds as follows: BACKGROUND 1. Petitioner was formerly a Circuit Judge for the Ninth Judicial Circuit. He was removed from that office by the Supreme Court by order dated October 12, 2005, in Inquiry Concerning a Judge, No. 03-14, Re: James E. Henson (No. SC04-1). The basis for his removal was a finding by the Judicial Qualifications Commission that Judge Henson practiced law while still a judge and that, acting as an attorney between his terms of judicial service, he advised a client in a criminal matter to flee the county rather than face prosecution. The Supreme Court concluded that the evidence presented to the Hearing Panel established these two violations and removed him from office. 2. Subsequently, The Florida Bar brought proceedings against the petitioner in Florida Bar Case No. 2006-30,637(09E), Supreme Court Case No. SC06-489. These proceedings were based on the same conduct and factual basis set forth in the case cited in paragraph 1 above. 2
3. A consent judgment was entered into by the petitioner and The Florida Bar wherein the petitioner agreed to a three (3) year suspension from the practice of law and the payment of costs. 4. The agreement was accepted by the referee and approved by The Supreme Court on August 31, 2006. The petitioner has remained suspended since that date. TESTIMONY AND EVIDENCE PRODUCED AT HEARING 1. The petitioner is currently unemployed, but during the course of the suspension has worked briefly for Target and most recently for the Department of Children and Families (DCF). He began working for DCF in September, 2006, and ceased working for them in June, 2010. 2. While working for DCF, allegations were made against the petitioner and an investigation was done by the Office of the Inspector General. Petitioner was advised by witness DeBoard that based upon the findings of the investigation, unless petitioner resigned, DCF would begin termination proceedings. The petitioner resigned. 3. The allegations that the Office of the Inspector General found to be supported by the evidence it gathered were 1) James Henson falsified a child protective investigation record; 2) James Henson created a conflict of interest by 3
referring Department clients to a former colleague, an attorney for legal assistance, and 3) James Henson advised Department clients to conduct an illegal activity. 4. The testimony in regard to the above allegations came from the petitioner; Flora Butler, from the Office of the Inspector General; Peyton Lea and the written report of the Office of the Inspector General filed as Tab A of The Florida Bar s Composite Exhibit. 5. The allegation dealing with the falsification of a child protective investigation record centered on petitioner s filing a report that during an investigation he wrote that he had a face to face meeting with a child that he was supposed to interview. He did not in fact meet with the child. Petitioner s explanation was that he had met with a child outside the living quarters of the mother and stepfather (who he did speak with) and believed it to be the child he was supposed to talk with, but it turned out not to be. His explanation was that this was just a mistake on his part and was not an intentional falsification of a record. There was no other testimony from any of the participants to this event, so the referee accepts this explanation as offered. While this is obviously negligence, the referee does not find this to be an act that is dishonest, fraudulent, deceitful or a misrepresentation. The referee therefore does not find this to be disqualifying conduct as set forth in Rule 3-7.10. 4
6. The second allegation involved the petitioner referring a DCF client to a former colleague, law partner, for legal assistance. Petitioner admitted that he did do this, but saw nothing wrong in doing so at the time, but upon further reflection, believes this probably was an error on his part. No testimony was received that he received any financial remuneration for making this referral. While this may be viewed as misconduct by his employer, the referee finds this to be poor judgment, but does not find this to be disqualifying conduct pursuant to Rule 3-7.10. 7. The third allegation is the most troubling to the referee. This allegation is of petitioner advising Department clients to conduct an illegal activity. Specifically, the petitioner advised Department clients to secretly tape record another person to gain evidence for use in court. The petitioner testified that he had researched this and that you can do this in a public place where there is no expectation of privacy. While there is case law to support this proposition, see State v. Inciarrano, 473 So2d 1272 (Fla) (1985), an oral communication is protected under Florida Statute 934.03 if it satisfies two conditions: A reasonable expectation of privacy under a given set of circumstances depends upon one s actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable, Jatar vs. Lamaletto and Balgres Distributing Co., Inc., 750 So2d 1167 (3 rd DCA, 2000), citing Inciarrano, 473 So2d 1275. A further interpretation of the statute is found in La Porte vs. State, 512 So2d 984 (2 nd DCA, 1987) wherein it was held 5
Therefore we conclude that the legislature intended that if the person whose conversation or voice is being recorded expects that their conversation or voice will not be recorded and the circumstances justify that expectation and society is prepared to accept that expectation as reasonable, a violation of Section 934.03 has occurred regardless of whether the recorded words are of a private nature or privileged content. 8. As is apparent from the foregoing, the legality of taping someone s words without their consent is dependent on a number of objective and subjective factors including all of the facts surrounding the taping event. There is no bright line rule that conversations occurring in public areas can never be made with an expectation of privacy. Brandin vs. State, 669 So2d 280 (1 st DCA, 1996). 9. Petitioner s own witness, Retired Circuit Judge Jeffords Miller, when asked at Page 58 of the transcript of the hearing, stated Well that sounds like a law school exam question that normally, you have an expectation of privacy if you are in a situation where you expect privacy. But in a public place, then, you know, you take your chances and at page 59, line 14 But I can t really answer that with any accuracy. 10. While the referee cannot find that the foregoing is advising someone to conduct an illegal act, it certainly does not reflect good judgment on the part of the petitioner. The referee however, does not find that any of the foregoing is disqualifying conduct under Rule 3-7.10. 6
11. The referee also considered the criteria set forth in Rule 3-7.10(f)(2) Determination of Character and Fitness. 12. The referee heard the testimony of the witnesses who testified at the hearing and considered the written reports of comments found in Exhibit B of The Bar s Composite Exhibit. 13. All of the testimony presented revealed that the petitioner is a person of good character and a stand up guy. 14. The petitioner demonstrated his character and willingness to be a stand up guy when he appeared before students at the Stetson University College of Law in November, 2007, to speak on the issues that had caused him to be removed from the bench and suspended from practicing law. He was very candid in his presentation and accepted responsibility for his past mistakes. The presentation was made with his son in the audience while his son was a student at the Stetson University College of Law. 15. The petitioner additionally offered to give the same talk to the law schools of Barry University and Florida A & M, but the offer was declined. 16. The conduct that led to petitioner s suspension occurred in 2000, 2001 and 2002. At the time of the filing of the petition, the petitioner was 61 years of age. The petitioner has now been suspended from the practice of law for just short of four and one-half (4 ½) years. 7
17. The petitioner has strictly complied with the conditions of his suspension and has paid all monetary obligations. 18. He has displayed a lack of malice or ill feeling towards those who by duty were compelled to bring about the disciplinary proceedings (as is evidenced by his testimony, the testimony of the other witnesses and persons interviewed, and by his speech at Stetson University College of Law). 19. He has given personal assurances, which were supported by the testimony of other witnesses in the case, that he had a great desire to practice law and an intent to conduct himself in an exemplary fashion in the future. 20. While there was no testimony of the petitioner involving himself in community, civic or religious service, the evidence did show that he worked for the Department of Children and Families and this work no doubt contributed to the betterment of some children s lives and he gave that talk to the Stetson University law students. The talk to the students at Stetson took a large amount of internal strength and has hopefully contributed to the betterment of the practice of law by the students hearing it by preventing them now or in the future from making the same mistakes the petitioner did. 21. The referee therefore finds by clear and convincing evidence that the petitioner has shown rehabilitation. 8
22. The Florida Bar has incurred costs of $3,748.60. The petitioner has paid $500 of this as a cost deposit. The petitioner should therefore be required to pay the additional costs of $3,248.60. RECOMMENDATIONS 1. The referee having considered all the evidence and having made the foregoing findings recommends that the Petition for Reinstatement be granted, but because of the concerns expressed by the referee in findings 5, 6 and 10, that the petitioner be placed on a probationary period of at least one (1) year before full reinstatement occurs. 2. That the petitioner be responsible for payment of costs to The Florida Bar in an amount remaining due of $3,248.60. DATED this day of JANUARY, 2011. J. DAVID LANGFORD REFEREE CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, FL 32399-1927, and that copies were mailed by regular U.S. Mail to KENNETH LAWRENCE MARVIN, Staff Counsel, 651 East Jefferson Street, Tallahassee, FL 32399-2300; KENNETH H.P. 9
BRYK, Bar Counsel, The Florida Bar, 1000 Legion Place, Suite 1625, Orlando, FL 32801; and BARRY RIGBY, Attorney for Petitioner, 47 East Robinson Street, Suite 204, Orlando, FL 32801-1662, this day of JANUARY, 2011. Judicial Assistant 10