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People who file bogus Florida Bar complaints against attorneys for ethical misconduct can face criminal charges for making false allegations, the state’s 4th District Court of Appeal has ruled. Those who file grievances against lawyers with the Florida Bar are granted absolute immunity from civil lawsuits. But that immunity does not extend to criminal prosecution, the 4th DCA held Wednesday in West Palm Beach. In State v. Bryce Rutherford, a three-judge panel unanimously reinstated criminal charges against Bryce Rutherford, a Lake Worth woman who allegedly made false allegations in a Bar complaint filed against her former employer, John Carter, a partner at Carter & Thomas in Boca Raton. Rutherford, a legal secretary, filed the Bar complaint in 2001 after she was fired from Carter’s firm on the grounds of incompetence, after just seven days on the job. In her complaint, Rutherford alleged that Carter had forged a client’s signature on a court document in a guardianship case he was handling. After an investigation, the Bar found no merit to the complaint and dismissed it. Carter claimed that Rutherford filed the complaint in retaliation for being fired. Rutherford, he said, had threatened to “make his life miserable” because he fired her on a Tuesday and refused to pay her salary through the remainder of the week. Rutherford claimed he owed her $2,000 in overtime and outstanding wages. “It was extortion,” Carter said in an interview. “She said if I paid her the money, everything would be fine.” Rutherford could not be reached for comment. After the Bar dismissed Rutherford’s complaint, Carter brought the matter to the Broward County state attorney’s office in Fort Lauderdale. Prosecutors filed charges against Rutherford, alleging perjury by false declaration — a third-degree felony that carries a maximum penalty of five years in prison. According to Broward prosecutors, Rutherford committed perjury by lying on a sworn Bar complaint. The Bar complaint form includes a clause that says, “Under penalty of perjury, I declare the foregoing facts are true, correct and complete.” Rutherford claimed that the Florida Supreme Court’s 1998 ruling in Tobkin v. Jarboe granted her absolute immunity from any repercussions for filing a Bar complaint. In Tobkin, the Florida Bar had investigated a complaint against an attorney, found there was no probable cause for the allegation and dismissed the complaint. The attorney then sued the grievant for defamation. The state Supreme Court ruled that anyone who files a Bar complaint against an attorney has absolute immunity from defamation lawsuits filed by the attorney who was the subject of the grievance — as long as the grievant does not make the complaint public. In August 2002, Broward Circuit Judge Ilona Holmes dismissed the felony charge against Rutherford based on Tobkin. But on Wednesday, the 4th DCA overturned Holmes’ ruling. The panel found that Rutherford was subject to prosecution because she asserted the truthfulness of her statements in the Bar complaint “under penalty of perjury.” “While Tobkin provides an absolute immunity against retaliatory civil lawsuits brought by attorneys who were the subject of Bar complaints against the complainants, it does not go so far as to shield a complainant from an action by the state for abusing the process,” Judge George Shahood wrote. Judges Barry Stone and Fred Hazouri concurred. Ken Marvin, the Florida Bar’s director of lawyer regulation, said that while the Bar sometimes forwards cases to prosecutors when lawyers claim complainants lied, this was the first time he’d heard of a case in which the state prosecutor filed criminal charges against someone for allegedly lying on a Bar complaint. He said the 4th DCA decision makes sense, given the perjury clause on the complaint form. “What’s the purpose of a sworn complaint if you can’t prosecute someone for perjury?” Marvin said. Carter called the Rutherford matter “one of the most embarrassing and humiliating experiences” of his life. He said he was satisfied with the 4th DCA’s decision. “Lawyers have rights, too,” he said. “The state now has the ability to protect the rights of lawyers.”

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