Florida Supreme Court doesn’t buy COVID-19 'brain fog' as attorney misconduct defense
A Florida lawyer lied to the court about speaking to a sequestered expert witness while representing his wife in a paternity matter brought by her ex-boyfriend; and his defense of COVID-19 playing a role in the incident was based on self-reports, rather than evidence, according to an opinion by the Florida Supreme Court.
Th Oct. 15 opinion found that Florida lawyer Clayton Bowers Studstill violated a professional conduct rule regarding candor toward the tribunal and another one that addresses fairness to the opposing party and the counsel. It rejected a referee’s finding that Studstill did not engage in misconduct because he was sick, and his actions were nonsensical to the point that it seemed likely that he did have “brain fog.”
Also, the referee found that COVID-19 was a divisive topic in 2022, and if a continuance that Studstill’s co-counsel asked for had been longer, it was unlikely that any of this would have happened.
Richard A. Greenberg, who represents Studstill, told the ABA Journal that he could not comment on the matter. The opinion remands the matter to a new referee with directions to determine recommended discipline.
The incident happened in June 2022 in the Ninth Judicial Circuit Court of Florida in Orange County, Florida. Three days before trial, Studstill said he tested positive for COVID-19, and the day before it was scheduled to start, his co-counsel filed a motion to continue based on his illness, according to the opinion. The court granted a two-day extension and permission for Studstill and his co-counsel to appear virtually. Studstill performed a direct exam of a witness during the virtual appearance and told the court that he felt better.
The next day, he came to court because a key expert witness was up, and he wanted to get thousands of emails into evidence, according to the opinion. An issue arose about the authenticity of the emails, and the judge sequestered the witness. Then the opposing counsel told the court that they saw Studstill talking to the witness.
“I was trying to turn off the meter and release the witness,” Studstill told the court, which called the witness back in.
She testified that there was no conversation about him releasing her.
“She said, ‘He was talking about the text messages that weren’t admitted for my—in my analysis [and] was referencing the exhibit numbers that he thought weren’t coming in,’” according to the opinion.
Studstill did not return after lunch. His co-counsel told the court that he was sick and went to get medical attention at an urgent care clinic. He came back at the court’s request, said he didn’t feel like he was making good decisions, and had “some COVID brain,” according to the opinion. The court released Studstill that day.
He went back to the urgent care clinic, was admitted to the hospital and released the next day—with a discharge summary that said he returned to work too soon, according to the opinion. At Studstill’s discipline hearing, a neurologist testifying on his behalf said the lawyer had delirium the day of the incident and should not have been working.
Studstill said he also tested positive for COVID-19 the day before the incident but didn’t mention it until his discipline hearing, according to the opinion.
“None of the medical records from June 9, 2022, reflect that respondent was running a fever when he was seen at either urgent care or the emergency room or that he was not oriented and alert. Rather, the medical records only include respondent’s self-reports of ‘not thinking right’ and possibly ‘experiencing brain fog,’” the state supreme court wrote.
Two Florida Supreme Court justices concurred on Studstill’s lack of candor with the court but dissented on the finding that he broke the sequestration rule. Expert witnesses are usually excepted from the sequestration rule, and an attorney should not be “ethically faulted” for not realizing that the trial judge expanded the rule, according to the dissent.
Law360 also had coverage.
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