The Florida Bar v. Jonathan Stephen Schwartz, 284 So.3d 393

Jonathan S. Schwartz, a criminal defense lawyer, used two altered photocopies of police photo lineups at a 2015 pretrial deposition in State v. Virgil Woodson.
Alterations: one exhibit substituted an alternate suspect’s photograph for Schwartz’s client; the other imposed the alternate’s hairstyle on the client’s photo; both retained the victim’s circle around subject number five and signatures of the victim and police officer.
The Florida Bar charged Schwartz with violating Rules Regulating the Florida Bar 4-8.4(c) (dishonesty) and 3-4.3 (acts contrary to honesty and justice).
A referee found Schwartz acted without intent to deceive, concluded the altered lineups were not misleading, and recommended no discipline; the referee also ordered each party to bear its own costs.
The Supreme Court of Florida disapproved the referee’s findings, concluded the exhibits were deceptive and Schwartz violated Rules 4-8.4(c) and 3-4.3, and remanded for a new referee to determine discipline; the Court also reversed the costs order and directed the Bar to submit costs.

Issue	Plaintiff's Argument (The Florida Bar)	Defendant's Argument (Schwartz)	Held
Whether Schwartz violated Rule 4-8.4(c) (dishonesty, deceit, misrepresentation).	Altering lineups and showing them to the witness was deceptive and constituted deliberate misconduct; intent can be shown by deliberate/knowing conduct.	No subjective intent to deceive; exhibits were produced to test identification and only black-and-white copies were available; conduct consistent with defense practice.	Yes. Court held the deliberate creation and use of deceptive exhibits violated 4-8.4(c).
Whether Schwartz violated Rule 3-4.3 (acts unlawful or contrary to honesty and justice).	The altered exhibits were misleading and contrary to honesty and justice.	The use of altered exhibits was intended to test identification and was not contrary to honesty and justice.	Yes. Court held the exhibits demonstrated conduct contrary to honesty and justice.
Whether the referee’s allocation of costs (each party bears own) was proper.	Bar sought costs consistent with prevailing outcome and Bar rules.	Referee ordered each party to bear own costs.	No. Court disapproved the split-costs order and directed the Bar to submit its statement of costs after further proceedings.

McWilliams v. State, 817 So. 2d 1036 (Fla. 3d DCA 2002) (upholding use of the actual police photo lineups in depositions but distinguishing use of defense-created deceptive arrays)
Kuntsman v. State, 643 So. 2d 1172 (Fla. 3d DCA 1994) (limits on compelling witnesses to view defendant-prepared photo arrays; disfavoring creation of evidence/misidentifications)
Fla. Bar v. Brown, 905 So. 2d 76 (Fla. 2005) (Bar must prove intent for Rule 4-8.4(c); intent may be shown by deliberate or knowing conduct)
Fla. Bar v. Frederick, 756 So. 2d 79 (Fla. 2000) (standard of review for referee factual findings)
Fla. Bar v. D’Ambrosio, 25 So. 3d 1209 (Fla. 2009) (court will not reweigh referee-supported factual findings)