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In an attorney-discipline action stemming from a legal family feud between the two sons of the late jeweler Harry Winston, the Florida Supreme Court on March 20 suspended a lawyer for 90 days for his part in compensating a consultant who later became a fact witness. Florida Bar v. Wohl, No. SC95770. The banned lawyer is Edward Wohl of Croton-on-Hudson, N.Y. A member of the Florida Bar, Wohl has represented jewelry heir Bruce Winston for more than 25 years. Jewels from the House of Harry Winston — including a 75-carat diamond worn by Joan Rivers at last month’s Academy Awards — have adorned the rich and famous for decades. Winston died in 1978. At that time, Winston’s other son, Ronald, became president of the family company. After Harry Winston’s widow, Edna, died years later, Ronald and his brother, Bruce, became embroiled in a dispute over her estate and the family businesses. In that dispute, Bruce retained David Boies and Robert Silver of Boies, Schiller & Flexner to serve as co-counsel to Wohl. According to Silver, a former employee of the Winston family businesses, Katherine Kerr, approached Bruce with information that assets of the family companies may have been used to benefit Ronald’s personal businesses. The Florida court’s opinion stated that Bruce approached Kerr. Feeling that Ronald was stonewalling him regarding information about the businesses, Bruce’s lawyers drafted a consulting agreement by which Kerr would be paid for information she provided. When a dispute arose about a missing diamond necklace about which Kerr had knowledge, she became a fact witness. Ronald Winston filed bar complaints against Wohl in Florida and against Boies and Silver in New York for providing inducements to a witness. In the Florida matter, Wohl argued that at the time the agreement was drafted, no one anticipated that Kerr would become a fact witness. Thus, Wohl argued, she was a consultant and not a witness until the necklace issue materialized after the pact was signed. Wohl also argued that the applicable Florida ethical rule, 4-3.4(b), was meant to apply to testifying witnesses, and not all witnesses. The Florida Bar and the state supreme court disagreed. “A witness is a witness,” said Edward Iturralde, bar counsel for the Florida Bar. The court held the rule applied to all witnesses, noting that, at its direction, the rule was amended in 1994. The court said, “In doing so, we established that a witness may not be paid, unless the payments fall within the clearly delineated exceptions, such as payments for reasonable expenses or payments to an expert witness. None of the exceptions to the rule are present in Wohl’s case.” Fortunately for Boies and Silver, they are licensed in New York and not Florida. Their counsel, Michael Ross of New York’s Law Offices of Michael S. Ross, said that New York rules permit the arrangement. “New York is a Model Code state, and Florida is a Model Rules state,” he said, adding, “New York Ethics Opinion 668 is directly on point.” That opinion, “Reasonable Compensation” of a Witness, Opinion 668 (1994 WL 593255), states that an attorney may “pay an individual a fee for assistance in the fact-finding process of a litigated matter where the individual may be a witness.” In essence, lawyers can pay consultants for pretrial services — even if they later become witnesses — as long as they are not paid for their testimony. Ross maintained the Florida high court misconstrued the agreement. “A number of brilliant lawyers wrote that agreement to specifically avoid any ethical problems,” he said.

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