The Florida Supreme Court Wednesday heard oral arguments supporting and opposing 10-year disbarment for Miami attorney Jose Maria Herrera over allegations he helped file frivolous lawsuits and disciplinary proceedings against rival law firm Lewis Tein and its attorneys.
Herrera’s lawyer, Herman J. Russomanno III, argued the sanction was unprecedented and too severe, while Florida Bar counsel Jennifer R. Falcone claimed it was fitting for “extremely serious misconduct.”
The Florida Bar filed its complaint against Herrera in July 2016, accusing him of taking part in “abusive litigation” against Guy Lewis, Michael Tein and their Miami firm.
The alleged abuse stemmed from a Miami wrongful death case, in which Herrera helped represent members of the Miccosukee Tribe of Indians of Florida — Jimmy Bert and his daughter Tammy Billie — who were sued in 2000 after a crash caused by drunken driving. The plaintiff won a $2.9 million judgment, and extensive post-trial litigation ensued.
Lewis and Tein — with Dexter Lehtinen of Lehtinen Schultz Riedi Catalano De la Fuente — handled the tribe’s affairs, until new counsel Bernardo Roman III took over in 2010.
Roman then filed numerous suits and motions alleging that Lewis Tein had billed the tribe for millions of dollars in “fictitious, excessive, exorbitant and unsubstantiated legal fees,” according to court-appointed referee, Miami-Dade Circuit Judge Dava Tunis.
The Florida Supreme Court permanently disbarred Roman, the alleged ringleader of the effort, in 2018, after the referee found him guilty of 55 charges, including eight counts of counseling or assisting a client in criminal or fraudulent behavior.
The claims in those lawsuits, which played out over six years in federal and state courts, were found to be “wholly frivolous and without any legal merit,” according to the referee’s report, which said Lewis and Tein were professionally and personally devastated by the ordeal. Tunis recommended temporary disbarment for Herrera, finding him guilty of violating 18 violations of the Rules Regulating the Florida Bar.
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Defense lawyer Russomanno asked the court to consider a 90 to 91-day suspension and probation, arguing 10 years isn’t supported by facts or case law. Russomanno said Herrera has no history of discipline or bar complaints in his 33 years of practice, has shown remorse and was going through family health problems at the time. Several character witnesses, including former Miami-Dade Circuit Judge Rosa Rodriguez, Miami-Dade City Attorney Victoria Mendez and lawyer Benedict Kuehne, had also vouched for Herrera.
A 10-year disbarment in this case, Russomannno claimed, was not backed up by case law.
“This is not the type of case, like a Rothstein or, like recently with Jeremy Alters, where there was a million dollars taken from the trust account, where disbarment was warranted by this court,” Russomanno said. “This is not that case.”
Russomanno also claimed that complainant Tien had helped draft the bar’s report, which went to the referee and ultimately became part of her findings. According to Falcone, the complainant didn’t have any control over the investigation but simply recounted for the court what had happened at the trial and in the case.
Tunis found that Herrera had manufactured false testimony through his client and intentionally thwarted discovery in the disciplinary phase “for as long as possible” of a statement from Lewis Tein and the courts supporting the tribe’s position.
The way Falcone saw it, that demonstrated Herrera’s inability to be rehabilitated.
“[The referee] accused [Herrera], essentially, of creating a kangaroo court situation because even after everything that had been said and done, he still was withholding evidence,” Falcone said.
Justices Barbara Lagoa and Robert Luck interjected to ask about one of Hererra’s alleged misrepresentations about a federal trial he’d attended. While Hererra testified he went to represent the interest of his client, Billie, it turned out that he’d billed the tribe for his time.
The court has yet to rule.