The Florida Bar v. Cyrus A. Bischoff
42 Fla. L. Weekly Fed. S 268
Fla.2017Background
- Bischoff represented a client in federal litigation; he filed multiple amended complaints and pursued claims that were later dismissed with prejudice for discovery abuses and contumacious conduct.
- Magistrate Judge Otazo-Reyes found Bischoff knowingly/recklessly pursued frivolous claims, engaged in discovery misconduct, misrepresented having served discovery responses, and failed to comply with court orders; she awarded $77,790.49 in fees against him.
- Judge Scola dismissed the case with prejudice, finding Bischoff’s November 19, 2012 notice that he had served discovery (when he had not) was an intentional misrepresentation and that repeated conduct showed disrespect for the court.
- The Florida Bar filed disciplinary charges; a referee reviewed the federal record, held a hearing, found multiple Bar Rule violations (competence, frivolous pleadings, false statements to a tribunal, discovery obstruction/disobedience), and recommended a one-year suspension and costs.
- The referee found six aggravating factors (dishonest motive, pattern, multiple offenses, refusal to acknowledge wrongdoing, victim vulnerability, substantial experience) and three mitigators (no prior discipline, good character evidence, other sanctions paid).
- The Supreme Court of Florida approved the referee’s factual findings and rule-violation recommendations, and imposed a one-year suspension (effective 30 days after opinion) and costs, reasoning the sanction fits precedent and the Florida Standards.
Issues
| Issue | Plaintiff's Argument (The Florida Bar) | Defendant's Argument (Bischoff) | Held |
|---|---|---|---|
| Fairness of referee hearing (post-rest questioning & Bar cross-exam) | Referee questioning and Bar cross-exam were proper and within quasi-judicial disciplinary procedures. | Hearing was unfair: Bischoff not sworn when questioned after resting; Bar improperly cross-examined after resting. | Court: No reversible error. Respondent waived objections; referee may question respondent and Bar may examine; respondent obliged to answer truthfully. |
| Competence and pleading failures (Bar Rule 4-1.1) | Bischoff lacked necessary competence: failed to plead essential elements (e.g., exhaustion, involuntary separation), and misapplied procedure. | Argued facts/pleading choices but essentially relitigates federal rulings. | Court: Approved referee’s finding of incompetence; facts in federal orders and record support violation. |
| False statements and frivolous conduct (Bar Rules 4-3.1, 4-3.3) | Bischoff filed frivolous objections/appeals and knowingly misrepresented service of discovery responses. | Contended he did not improperly litigate or mislead court. | Court: Found misrepresentation (notice of served responses when none) and frivolous filings; violations sustained. |
| Discovery obstruction and disobedience (Bar Rules 4-3.4(a), (c), (d)) | Bischoff obstructed discovery, failed to comply with orders, counseled client to refuse questioning, causing delay and dismissal. | Claimed client was difficult; challenged magistrate’s authority. | Court: Agreed with referee that Bischoff obstructed discovery and disobeyed orders; violations sustained. |
| Appropriateness of sanction (one-year suspension) | One-year suspension appropriate given misconduct, aggravators, and precedent. | Urged disapproval or lesser sanction. | Court: Approved one-year suspension, aligning with precedent (e.g., Rosenberg) and considering mitigation (payment of sanctions, client issues). |
Key Cases Cited
- Fla. Bar v. Rosenberg, 169 So. 3d 1155 (Fla. 2015) (discipline for discovery abuses and bad-faith litigation; one-year suspension justified)
- Fla. Bar v. Vannier, 498 So. 2d 896 (Fla. 1986) (Bar proceedings are quasi-judicial; relaxed rules of evidence)
- Fla. Bar v. Frederick, 756 So. 2d 79 (Fla. 2000) (appellate review limits for referee factual findings)
- Fla. Bar v. Jordan, 705 So. 2d 1387 (Fla. 1998) (deference to referee findings supported by competent substantial evidence)
- Fla. Bar v. Shoureas, 913 So. 2d 554 (Fla. 2005) (referee’s factual findings must suffice to support recommended rule violations)
- Fla. Bar v. Anderson, 538 So. 2d 852 (Fla. 1989) (court’s responsibility to determine appropriate sanction on review)
- Fla. Bar v. Temmer, 753 So. 2d 555 (Fla. 1999) (court will not disturb referee sanctions if reasonable under precedent and standards)