IN THE SUPREME COURT OF FLORIDA

CASE NO.SC95831

MICHAEL LEE VON ZAMFT,

Respondent,

vs.

THE FLORIDA BAR,

Complainant.

______________________________________

______________________________________

JEPEWAY AND JEPEWAY, P.A.

407 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

Tele.: (305)377-2356

Fla. Bar No. 113699

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The size and style of type used in this brief are: Courier New

Font; 10 characters per inch.

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Certificate of Type Size and Style . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . iii

Symbols and References . . . . . . . . . . . . . . . . . . 1

Statement of the Case and of the Facts . . . . . . . . . . 1

Points on Review . . . . . . . . . . . . . . . . . . . . . 19

Summary of the Argument . . . . . . . . . . . . . . . . . . 20

Introduction . . . . . . . . . . . . . . . . . . . . . . . 22

Argument . . . . . . . . . . . . . . . . . . . . . . . . . 23

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 44

Certificate of Service . . . . . . . . . . . . . . . . . . 45

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639 So.2d 22 (Fla. 1994) . . . . . . . . . . . . . . . 26

549 P.2d 666 (Or. 1976) . . . . . . . . . . . . . . . 41

664 So.2d 928 (Fla. 1995) . . . . . . . . . . . . . . 25

191 So.2d 33, 34-35 (Fla. 1966) . . . . . . . . . . . 24

469 So.2d 733 (Fla. 1985) . . . . . . . . . . . . . . 27

343 So.2d 605 (Fla. 1977) . . . . . . . . . . . . . . 29

697 So.2d 71, 75 (Fla. 1997) . . . . . . . . . . . . . 22

643 So.2d 1069, 1070 (Fla. 1994) . . . . . . . . . . . 42

7311 So.2d 1249, 1252 (Fla. 1999) . . . . . . . . . . 42

691 So.2d 480, 480-481 (Fla. 1997) . . . . . . . . . . 42

645 So.2d 438, 442 (Fla. 1994) . . . . . . . . . . . . 33

453 So.2d 794 (Fla. 1984 . . . . . . . . . . . . . . . 43

238 So.2d 594, 596-597 (Fla. 1970) . . . . . . . . . . 33

721 So.2d 705, 707 (Fla. 1998) . . . . . . . . . . . . 23

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425 So.2d 1126, 1129 (Fla. 1982) . . . . . . . . . . . 23

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The parties will be referred to by name.

The transcript will be referred to by "T.".

The Bar filed a complaint against Mr. Von Zamft charging

violations of Rules 4-8.4.(d) and 4-3.5.(a) of the Rules Regulating

The Florida Bar. A final hearing was held before the Referee.

The Bar called Mr. Von Zamft.

Mr. Von Zamft holds Bachelor’s and Law degrees from the

University of Miami. He graduated from law school in 1973 (T.114).

He has worked in the State Attorney’s Office since 1995. He

presently is in the organized crime/public corruption/racketeering

unit.

He was an assistant public defender for eight years, trying

felony cases and later capital cases. He was in charge of training

for two and a half years (T.114-115).

He entered private practice in 1981 (T.114). He went to the

State Attorney’s Office in 1995 (T.115).

He was in the legal division of the State Attorney’s Office.

Those attorneys give advice on appeals, argue motions in

complicated cases, and are available when other assistant state

attorneys have questions. He then helped dispose of one hundred

felony cases (T.116). Since then he has been trying cases and has

been in charge of training (T.116-117).

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Mr. Von Zamft has been active in Bar matters. He helped

create the Criminal Law Section of the Florida Bar. He was the

Chairman of the Criminal Law Section.

He has lectured numerous times for the Florida Bar, for the

Florida Public Defender’s Association, and for the Florida

Prosecuting Attorneys Association (T.117). He was one of the

founders of the Prosecutors/Public Defenders Training Program that

is held annually at the University of Florida(T.117-118).

murder case. It was a double homicide involving a murder of a

football player. He was not involved in the case (T.25).

Flora Seff was the lead prosecutor. The defense attorney was

Ron Guralnick. Judge Victoria Platzer was the judge (T.25).

He and Judge Platzer were friends. They had dated three years

earlier (T.25-26). He and Judge Platzer had an informal agreement

that he would not appear before her (T.26).

May 5, 1998. A verdict had been returned in another murder case

was a very complicated, very difficult, very heinous murder case in

which the defendant was charged and convicted of the robbery,

kidnaping, torture and murder of two people.

Seff said it was set for July, 1998. That was a problem since Mr.

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Zamft said that Mr. Guralnick could not be ready to try another

coming up. Ms. Seff said that was a problem and that Mr. Guralnick

had no assistance (T.29-30). Mr. Von Zamft knew that Mr. Guralnick

Ms. Seff said that Mr. Guralnick agreed that the trial should

be put off (T.30). Mr. Von Zamft asked Ms. Seff if she would like

him to speak to the judge about the matter. She said that she

would. He did not tell Mr. Guralnick that he was going to speak to

the judge (T.35).

Judge Platzer invited Mr. Von Zamft to lunch on May 11, 1998.

If he had known that Mr. Guralnick had announced that he was ready,

or had insisted that he would be ready, he would not have

communicated with Judge Platzer about the matter. If he thought

they were not in agreement, he would not have spoken to the judge

at all about it (T.35).

Mr. Von Zamft told Judge Platzer that if the case went to

trial in July, as scheduled, the potential of a reversal was great.

She did not need to have her first capital case reversed. It would

not be good for her (T.37-38). His intent was to have the judge

grant a continuance in order that both sides would be able to try

the case fairly (T.38). He thought Ms. Seff was concerned about

the case being reversed. A prosecutor is concerned about obtaining

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a conviction and upholding it on appeal. If defense counsel is not

ready and cannot proceed properly it is the prosecution’s

obligation to prevent that from occurring. There is no need to

waste a judge’s time by trying a case two or three times,

especially a complicated murder case because a defense attorney is

not ready (T.38). He did not tell Judge Platzer that he had spoken

to Ms. Seff (T.41).

Mr. Von Zamft and Judge Platzer had had conversations about

law, general advise, etc. (T.42). One conversation concerned

reversals. Judge Platzer had said that the attorneys in front of

her probably should give her better advice to avoid reversals, so

she could make correct decisions. Knowing that, and with his

knowledge of what was going on, his view of capital cases that he

had tried, and his relationship with her, he talked about a trial

that was coming up and did not think that she should make a mistake

and try it then (T.43).

Judge Platzer continued the case on May 13 (T.43).

Michael Band from the State Attorney’s Office called Mr. Von

Zamft and Ms. Seff into his office (T.44). He reprimanded them

because of their communication with the judge. They should not

have done it. Mr. Band was their superior (T.44-45).

When Ms. Seff mentioned to him that she was concerned that Mr.

Guralnick was unprepared for trial she said that they had agreed

that they needed more time (T.118).

He believed that he was trying to help the justice system and

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prevent a miscarriage of justice (T.118). It was simply a matter

of scheduling to him. If Ms. Seff had told him that Mr. Guralnick

opposed a continuance, he absolutely would not have said anything

to Judge Platzer (T.119).

On re-direct, he repeated that he would not have said anything

to Judge Platzer if he knew that Mr. Guralnick did not agree to a

continuance (T.120).

He spoke to Judge Platzer because of his interest in justice,

and his interest in insuring that both sides received a fair

trial. He also thought that Judge Platzer’s first capital case

should not start out with a problem. He went there as Michael Von

Zamft. He spoke to Judge Platzer as a friend, not as a prosecutor

or because Ms. Seff asked him to do so (T.122-123).

Mr. Von Zamft thought he was helping the judge (T.124).

Judge Victoria Platzer testified. She has been Circuit Judge

since 1995 (T.45).

She recalled having lunch with Mr. Von Zamft on May 11, 1998.

Pam England, a mutual friend, was also present. She and Mr. Von

Zamft were friends then (T.48). They had dated (T.49). They

stopped dating in late 1995 (T.49). She recused herself on all of

Mr. Von Zamft’s cases (T.49).

During lunch, Mr. Von Zamft said that he had to talk to her

about one of her cases. She asked him not to (T.49). He said he

just needed to say something to her and she said no. It was in a

light manner because she assumed that he would stop once she said

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that. He then said that she was making a mistake by forcing the

attorneys to go to trial. The defense was not ready. It had not

taken depositions. She was inviting a reversal (T.49-50).

She told him no, don’t, because she did not want him to talk

about any case. There was no impending emergency that required Mr.

Von Zamft to speak to her about the case (T.50).

A hearing was held on May 13, 1998. It was a status hearing

(T.51). Ms. Seff, and two other prosecutors were present. Ms.

Seff reiterated what Mr. Von Zamft had said to her which was that

she was making a mistake by forcing the defense to go to trial

because it was not ready, it had not taken depositions, and

suggested to her that she was making a mistake. She thought that

something was fishy because Ms. Seff’s comments were almost

verbatim to Mr. Von Zamft’s. There was a comment about camp that

struck her in the wrong way. There was also a rumor going around

the State Attorney’s Office that she was forcing the case to trial

because her kids were in camp (T.52-53). That was just one of her

considerations as far as specially setting the case. Nonetheless,

it was just too much of a rehearsed script and too similar to what

Mr. Von Zamft had said as well (T.53).

Mr. Guralnick was kind of wishy-washy at the hearing. He said

that he could be ready. He knew that Judge Platzer had made all

these plans and as a courtesy to the court he would be ready but,

if she wanted to give him a continuance – – he basically joined in

the request for a continuance. That is why she granted the

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continuance (T.53). He said that he had taken all the major

witnesses’ statements and that he would be ready for a July trial

if that had to come to pass (T.53).

She granted the continuance not because the State told her

that Mr. Guralnick needed more time, but because Mr. Guralnick told

her he wanted more time if she would give it to him. He had just

been in a major death penalty case for a very long period of time,

so she granted the request for continuance (T.54).

She asked Ms. Seff to come back into chambers after the

hearing. There was no court reporter. It was just the two of

them. She asked Ms. Seff how she would feel if she sent her exboyfriend

to tell her how to handle a case (T.54). She just threw

it out there because she had such a bad feeling about Ms. Seff

having done that that she was personally offended by it. She

assumed that Ms. Seff would say I don’t know what you’re talking

about and it really didn’t matter, but she did not. She said that

she did not know that Judge Platzer had dated Mr. Von Zamft. She

said that she thought that Judge Platzer and Mr. Von Zamft were

just friends. She did not want Judge Platzer to make a mistake

(T.54-55).

did so because it was a death penalty case. Those cases are

treated differently from other cases. She was not going to take a

chance with there being any appearance of impropriety in the case

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and at that point she felt that there was. This was predicated

upon her conversation with Mr. Von Zamft and with Ms. Seff’s

comfortable feeling in sending Mr. Von Zamft to talk to her (T.55).

If Mr. Von Zamft had spoken to her of his own volition she

would have ignored it. Mr. Von Zamft likes to give opinions on

lots of things. That was the nature of their relationship. He

just did that. They did not discuss pending cases. They did

discuss rulings after she made them. She ran stuff by him since

they were friends as she does with colleagues as well. But she

would have just ignored it (T.56).

Mr. Von Zamft had never discussed a case that was pending that

had an issue which she had to decide. She had to decide whether or

She talked with some judges who are friends, including some

appellate judges. They advised her to recuse herself and say

nothing. She was very uncomfortable with that because she had read

about cases with prosecutorial misconduct and she was concerned

about whether this even touched on prosecutorial misconduct. She

had the legal unit do some research for her and scheduled a hearing

on May 28, 1998. She reviewed the information and felt that it was

her obligation as the judge on the case to disclose it and let the

chips fall where they may. Ms. Seff did not appear (T.57). Anita

(T.58).

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Mr. Band said it wasn’t appropriate, that Mr. Von Zamft had

not only violated whatever rules he may have violated, but worse

yet, had infringed on their friendship. She suggested to Mr. Band

that he handle it appropriately, whatever he found the appropriate

punishment was. She told Mr. Band that as long as she knew that he

was going to do something about it she did not feel that she needed

to do anything more(T.58).

Mr. Guralnick was offended and suggested that it was not for

the State to say whether or not he was ready for trial, and that

for strategic reasons he may have elected to go to trial at the

time that it was specially set (T.58).

The Bar moved Exhibit 1 into evidence. It is a letter which

Mr. Band sent to her after the May 28 hearing setting out what he

had done (T.59-60).

On cross-examination, Judge Platzer testified that the letter

was written on the State Attorney’s stationary by Mr. Von Zamft’s

supervisor, Mr. Band. He had come to court on May 28, 1998 to try

to rectify the situation (T.60). The letter states that it was an

in-house matter and that they would take care of it (T.60-61). Mr.

Band thanked her for permitting the State Attorney’s Office to

handle it in-house. Both she and the State Attorney’s Office

thought that it was not a matter that should be communicated to The

Florida Bar (T.61).

It was Mr. Guralnick who communicated with the Bar (T.63).

Mr. Guralnick had been retained to represent Mr. Dennis as private

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counsel. Mr. Guralnick also filed a motion to dismiss the double

homicide indictment on the ground that Mr. Von Zamft had made his

passing comment to her (T.63-64).

Pamela England was present when Mr. Von Zamft made the comment

to her about continuing the trial. They were at a table in a

restaurant. Ms. England had her baby with her. Mr. Von Zamft did

not hesitate and whisper in her ear. He was communicating with her

about many subjects (T.64). She and Mr. Von Zamft were together at

least an hour and a half that day, perhaps longer, because it was

his birthday (T.64-65). They talked about her vacation, her

family, and a variety of subjects. Mr. Von Zamft’s statement about

the continuance was just one of many subjects. His comment was

very quick. Her absolute impression absolutely was that Mr. Von

Zamft made the statement in an attempt to do something positive

rather than something negative, that he was attempting to help

(T.66). She did not think he was doing anything to sabotage the

case (T.66). She did not take Mr. Von Zamft’s comment as an

attempt to impede and hinder the administration of justice (T.67).

In fact, it was just the opposite. He was attempting to do

something that might be to its benefit (T.67).

In all likelihood, Mr. Von Zamft mentioned that Mr. Guralnick

had been in trial for four months in a murder case and that the

penalty, the sentencing phase, was approaching (T.67-68). But she

does not remember (T.68).

Mr. Von Zamft did not press the issue. He did not mention it

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again. There was no importuning on his part after the sixty second

comment (T.68).

She was not concerned about Mr. Von Zamft’s comment because it

did not affect her. She did not pay attention to what he said. He

was not going to influence her at all (T.68).

Mr. Von Zamft never mentioned the evidence in the case. He

never discussed the prosecution’s case or its theory or the

defense’s theories. He simply said that the matter should be

continued, which was a scheduling matter (T.69).

He did not disparage Mr. Guralnick. He simply said that Mr.

Guralnick was not ready for trial (T.69).

Respondent’s Exhibit 1, the transcript of May 13, 1998

hearing, was introduced (T.69-70).

Mr. Guralnick told her that he preferred a continuance so she

granted a continuance. She granted the continuance because Mr.

Guralnick said he wanted it. It had nothing to do with what Mr.

Von Zamft or Ms. Seff said (T.76). Mr. Von Zamft’s statement had

case (T.76-77). The only thing that persuaded her to grant the

motion was Mr. Guralnick’s statement that he was under time

pressure and constraints and that it would be better for him and

nice if the Dennis case could be continued(T.77).

A hearing was held on May 28, 1998. Mr. Guralnick was there.

Mr. Von Zamft was not. She informed the parties of the reason for

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her recusal. She thought it was absolutely necessary as the trial

judge in a murder case that her reason be on the record (T.77-78).

She said to Mr. Guralnick "and then, you said of course I would

like more time referring that he, you, Guralnick said you wanted

more time and that was basically the reason why she granted the

continuance" (T.78).

Although Mr. Guralnick had said that he could have been ready,

the statements he made on May 13, 1998, certainly showed that he

was posturing to obtain a continuance. She granted the continuance

based simply on his representations to her of the problems he had

(T.79).

Mr. Guralnick filed a motion to dismiss the double homicide on

June 19, 1998, about seven days after he filed the Bar complaint.

She had continued the trial to September 8, 1998 on May 13, 1998

(T.80-81). She did not announce the recusal and the reason for it

until May 28, 1998 (T.81).

She did not disclose the conversation that she had with Mr.

Von Zamft because she wasn’t even really thinking about it at that

point. Then, Mr. Guralnick said, he would like more time if she

would give him more time, but he understood that she had specially

set the trial. Predicated upon that and Ms. Seff’s strong feelings

about having to have a second chair and putting on the record that

she had never tried a death penalty case and putting on the record

that I had never tried a death penalty case and she apparently had

concerns about that as well and that Ms. Brill, another prosecutor

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was going to in Orlando with Mr. Band on another murder case, she

granted the continuance (T.87). On re-cross, it was brought out

that, on p.12, she asked Mr. Guralnick if he had anything else and

he said no. He never refuted the fact that he needed more time.

She confronted him with it and he said of course he would like more

time (T.88-89). Mr. Guralnick never said that he was ready for

trial and that he did not want the trial continued (T.89-90). On

page 10, Mr. Guralnick stated that he wanted to try the case on

September 8, 1998 (T.90).

Jerald Kogan, the former Chief Justice of this Court,

testified. He presently is the President of the Alliance For

Ethical government in Miami-Dade County (T.92). The Alliance is a

group of business people, professional people, clergy and educators

who have formed an alliance for the purpose of restoring ethical

government to Miami-Dade County (T.92).

He was a justice of the Supreme Court of Florida for twelve

years. He served as Chief Justice. In those capacities he sat on

many Bar cases that the Supreme Court reviewed (T.98). While

sitting on the Supreme Court he was involved in committees and

activities concerning the ethical conduct of attorneys, in the

broad sense (T.93-94). He was the Chairman of the Gender Bias

Study Commission which concerned the ethical responsibilities of

persons within the justice system as to their attitudes and conduct

towards women. He also reviewed the activities of the Ethnic and

Racial Bias Commission concerning the ethical responsibilities of

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members of the Bar towards minority groups, both racial and ethnic,

while a member of the Supreme Court. He and the other Justices

approved the disciplinary rules and regulations governing the

members of The Florida Bar (T.94).

He has known Mr. Von Zamft for about twenty-five years (T.94).

He met Mr. Von Zamft when he appeared before him when he was a

circuit judge. He also knew Mr. Von Zamft when he was in the

Public Defender’s Office. He also knows Mr. Von Zamft as a

colleague. They have taught together in the Prosecutor-Public

Defender Workshop at the University of Florida for many years. He

also knows Mr. Von Zamft as a friend (T.94-95).

He knows Mr. Von Zamft’s reputation for truthfulness and

integrity among lawyers. It is excellent. He is a truthful

person. In his opinion, and from what he has heard from others,

Mr. Von Zamft’s integrity is the highest.

He is familiar with the allegations against Mr. Von Zamft.

Assuming that Mr. Von Zamft had a conversation with Judge Platzer

about a case that was before her, a capital case, and assuming that

he suggested to her that she should grant a continuance of the

trial because defense counsel was involved in another capital case

which had not yet concluded, and that the attorney would not be

ready for the capital trial before Judge Platzer, and that if a

continuance were not granted that the conviction, if obtained,

might be set aside at some later date because of the

ineffectiveness of defense counsel, his opinion is that Mr. Von

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Zamft’s statements to Judge Platzer did not constitute a violation

of the ethical rules of The Florida Bar because the statements

certainly did not go to the merits of the case (T.95-96). The

statements went to scheduling.

His opinion is that Mr. Von Zamft’s comments generally were

not prejudicial to the administration of justice. He, as circuit

judge, would appreciate an attorney who told him that particular

information so that he would not be wasting the system’s time in

trying a case that eventually would be reversed and sent back for

a new trial (T.97).

On cross-examination he testified that the relationship

between Judge Platzer and Mr. Von Zamft did not change his opinion.

If anything, it would probably strengthen his opinion. Mr. Von

Zamft was trying to advise a friend that there could be a problem.

If there were a conviction it might have to be retried if a

continuance was not granted (T.98).

Judge Leonard Glick testified. He has been a circuit court

judge since 1991. He has sat in the criminal division the entire

time (T.112).

He has known Mr. Von Zamft since 1974 when he (Judge Glick)

went to the Major Crimes Unit of the State Attorney’s Office

(T.112). Mr. Von Zamft was an attorney in the Public Defender’s

Office. He has known Mr. Von Zamft for years as a public defender

and private attorney. Mr. Von Zamft has appeared before him as an

assistant state attorney (T.112).

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Mr. Von Zamft’s reputation for truthfulness, integrity and

veracity in the legal community is very good. One can take his

word to the bank. It is not necessary to put things in writing

with Mr. Von Zamft. A handshake is fine. He never had a reason to

question Mr. Von Zamft’s word and neither has anybody that he knows

(T.113).

The Referee found Mr. Von Zamft guilty and recommended a

published admonishment (R.R.1-5).

Mr. Von Zamft will refer to specific passages of the Report in

the Argument portion of this brief.

This Petition for Review followed.

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I

Rule 4-8.4.(d) is unconstitutionally void for vagueness and

overbroad. It provides no ascertainable standard of guilt. It

permits the Bar and Referee to select that which it desires to

prosecute and hear without giving notice to attorneys.

II

The Referee erred in finding Mr. Von Zamft guilty of violating

Rule 4-8.4.(d). The uncontradicted evidence and the finding of the

Referee were that Mr. Von Zamft intended to enhance the

administration of justice.

III

The Referee erred in finding Mr. Von Zamft guilty of violating

Rule 4-3.5.(a). Subsection (a) concerns conduct, not

communications. Subsection (b) concerns communications. A lawyer

is permitted to communicate with a judge on a scheduling matter.

IV

The Referee erred in recommending a published admonishment.

There is no such discipline. The Court should order an

admonishment.

V

Mr. Von Zamft should not be required to pay the Bar’s costs.

He offered to settle the case by accepting an admonishment. The

Bar refused. The Referee recommended an admonishment.

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"‘This case is not unlike that old adage or homily that "no

71, 75 (Fla. 1997).

Mr. Von Zamft’s intentions were pure and his comments noble.

His punishment is this.

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Bar proceedings are: : ". . . quasi-criminal in nature. . . ."

The facial constitutionality of a statute or rule of procedure

may be raised for the first time on appeal because: "‘a conviction

for the violation of a facially invalid statute would constitute

1129 (Fla. 1982)

Rule 4-8.4.(d) of the Rules Regulating The Florida Bar is void

shall not: . . .(d) engage in conduct in connection with the

practice of law that is prejudicial to the administration of

justice. . . ." The term "conduct . . . prejudicial to the

administration of justice" is nowhere defined.

It is fundamental that a penal statute must be precise:

"‘. . . Whether the words of the Florida statute are

sufficiently explicit to inform those who are subject to

its provisions what conduct on their part will render

them liable to its penalties is the test by which the

statute must stand or fall, because . . . "a statute

which either forbids or requires the doing of an act in

terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its

application violates the first essential of due process

1966))

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It is equally fundamental that:

"Statutes criminal in character must be strictly

construed . . . In its application to penal and criminal

statutes, the due process requirement of definiteness is

of especial importance. If such statutes, in defining

criminal offenses, omit certain necessary and essential

provisions which serve to impress the acts committed as

being wrongful and criminal, the courts are not at

liberty to supply the deficiencies or undertake to make

which prohibited a lawyer from charging more than a "reasonable"

fee in an adoption matter. The defendant-attorney was accused of

charging more than a reasonable fee in an adoption.

This Court held the statute void for vagueness:

". . . As apt today as when pronounced is the

observation . . . ‘It would certainly be dangerous if the

Legislature could set a net large enough to catch all

possible offenders and leave it to the courts to step

inside and say who could be rightfully detained and who

should be set at large. This would, to some extent,

substitute the Judicial for the Legislative Department of

the Government.’

We simply say that the statutory section in question

is too vague and indeterminent to establish for guidance

of attorneys an ascertainable standard of guilt.

Accordingly, we find that section 72.40(2)(a), Florida

Statute F.S.A., is void, in that attorneys prosecuted and

convicted under it will be deprived of their organic

Commercial Bribery Statute unconstitutional. The defendant was the

credit manager for a company. He extended credit to organizations

seeking to finance construction equipment. Another man worked with

the defendant in locating suitable candidates for loans and was

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paid a commission by the defendant’s company. The state alleged

that the defendant entered into an unauthorized side agreement with

the other man in which the other man paid the defendant between

thirty-three percent and forty percent of each commission as a

"payback".

Florida Statute 838.15(1) prohibited the solicitation,

acceptance or agreement to accept a benefit "with intent to violate

a statutory or common law duty to which that person is subject. .

. ."

This Court unanimously held the statute unconstitutionally

vague:

". . . Few workers in Florida, however, are aware

that they owe such a ‘common law duty’ to their employers

and fewer still could define the dimensions of that duty.

In fact, substantial legal research would be required by

many employees to determine their obligations under the

law.

By the terms of this act every . . .

employee . . . is required to determine at his

peril what specific acts are authorized by law

and what are not authorized by law. Honest

and intelligent men may reasonably have

contrary views as to whether or not a specific

act . . . is or is not authorized by law and,

therefore, the violation or non-violation of

this statute may reasonably depend upon which

view the court or a jury may agree with.

. . . The statute ‘is too vague to give men of

common intelligence sufficient warning of what is corrupt

and outlawed.’ . . .

Further, by its plain language the statute

proscribes every violation of an employee’s statutory or

common law duty, no matter how trivial or obscure,

whether it results in harm or not. A head waiter giving

preferential treatment to a big tipper or a sales person

-23-

on commission giving special service to a well-healed

customer could be subject to criminal prosecution under

the plain language of the statute. Because of the

statute’s indiscriminent sweep, individual prosecutors

must decide – – based on their own subjective opinions –

– which violations are sufficiently substantial to

warrant full-blown criminal prosecution.

While some discretion is inherent in

prosecutorial decision-making, it cannot be

without bounds. The crime defined by the

statute . . . is simply too open-ended to

limit prosecutorial discretion in any

reasonable way. The statute could be used, at

best, to prosecute, as a crime, the most

insignificant of transgressions or, at worst,

to misuse the judicial process. . . .

Section 838.15 invites arbitrary application of the law."

unconstitutional Florida Statute 415.111(5), which provided that:

"A person who knowingly or wilfully exploits an aged

person or disabled adult by the improper or illegal use

or management of the funds, assets, property, power of

attorney, or guardianship of such aged person or disabled

adult for profit, commits a felony of the third degree.

. . ."

This Court determined that:

". . . there are no other statutes in the instant

case to lend meaning to the vague language employed in

to criminalize any ‘illegal’ act in using or managing the

funds of aged person. Further, section 415.111(5) also

suffers from the same constitutional infirmities noted by

because it is too vague to give notice. Furthermore,

‘the determination of a standard of guilt is left to be

supplied by the courts or juries,’ which is ‘an

unconstitutional delegation of legislative power.’. . .

." (639 So.2d at 24)

-24-

unconstitutional former Florida Statute 839.25(1)(a), which

prohibited official misconduct defined as follows:

"839.25 Official Misconduct. -

(1) ‘Official misconduct’ means the commission of

one of the following acts by a public servant, with

corrupt intent to obtain a benefit for himself or another

or to cause unlawful harm to another;

(a) Knowingly refraining, or causing another to

refrain from performing a duty imposed upon him by law.

. . ."

This Court held that:

"The district court, in finding subsection (a) to be

. . . as unconstitutional on the ground that it was

susceptible to the same type of arbitrary application.

That subsection defined official misconduct as

‘[k]nowingly violating, or causing another to violate,

any statute or lawfully adopted regulation or rule

relating to his office.’ In striking subsection (c),

this Court stated:

‘Official Misconduct’ under subsection

(c) is keyed into the violation of any

statute, rule or regulation, pertaining to the

office of the accused, whether they contain

criminal penalties themselves or not, and no

matter how minor or trivial.

356 So.2d at 308. We concluded by finding:

The crime defined by the statute, knowing

violations of any statute, rule or regulation

for an improper motive, is simply too openended

to limit prosecutorial discretion in any

reasonable way. The statute could be used, at

best, to prosecute as a crime, the most

insignificant of transgressions or, at worst,

to misuse the judicial process for political

purposes. We find it susceptible to arbitrary

application because of its ‘catch-all’ nature.

-25-

* * *

. . . We agree that subsection (a) suffers the same

vulnerability to arbitrary application and find that it

impermissibly allows the imposition of criminal sanctions

for the failure to perform duties imposed by statute,

rules, or regulations that may themselves impose either

a lesser penalty or no penalty at all. We note that

agency rules and regulations . . . have the effect of law

. . . and, therefore, violation of any agency rule or

regulation could be grounds for the imposition of

criminal sanctions under subsection (a). We conclude

that subsection (a), as it is presently written, is

unconstitutionally vague and susceptible to arbitrary

provided that:

"839.11 Extortion and Malpractice Generally. – – Any

officer of this state . . . who is guilty of any

malpractice in office not otherwise especially provided

for, shall be guilty of a misdemeanor of the first

degree. . . ."

The defendants were charged under this statute of approving or

voting to approve the purchase of new voting machines without

taking competitive bids or having the chairman of the county

commission certify that the situation required an exception, for

failing to keep and maintain adequate records, and other similar

acts.

This Court concluded that:

". . . the subject statute is so vague and overbroad

that it is not amenable to . . . saving construction

unless the court is willing to invade the province of the

Legislature and virtually rewrite it. Under our

constitutional system, courts cannot legislate . . .

-26-

Any doubt is resolved in favor of the accused:

"When construing a penal statute against an attack

of vagueness, where there is doubt, the doubt should be

resolved in favor of the citizen and against the state.

Criminal statutes are to be strictly construed according

This Court once again explained that:

". . . It is unconstitutionally impermissible for

the Legislature to use such vague and broad language that

a person of common intelligence must speculate about its

meaning and be subjected to arrest and punishment if the

What is conduct prejudicial to the administration of justice?

If a lawyer compliments a judge on a ruling in a case and the

lawyer might have a case before the judge in the distant future, is

the lawyer’s comment prejudicial to the administration of justice?

If a lawyer and a judge have been friends for thirty five

years, and each was the best man in the other’s wedding, and the

lawyer gives the judge and his wife a twenty fifth wedding

anniversary gift, and the lawyer might have a case before the judge

in the distant future, is that conduct prejudicial to the

administration of justice?

If a lawyer contributes to a judge’s election campaign, and

the lawyer might have a matter before the judge in the distant

future, is that conduct prejudicial to the administration of

justice?

If a lawyer is an alumna of one school and a judge is an

alumna of another school, and the two schools are sports rivals,

-27-

and the two have a bet on the schools’ annual football game, lunch,

and the lawyer’s school loses and she buys the judge lunch, is that

conduct prejudicial to the administration of justice?

The vagueness and lack of standards of Rule 4-8.4(d) is

perfectly illustrated by this case. Chief Justice Kogan expressed

the opinion that Mr. Von Zamft’s statements to Judge Platzer did

not constitute a violation of the Rule. The Referee found that the

statements did.

Moreover, the Referee’s reasoning is most curious. He found

that Mr. Von Zamft persisted in expressing his opinion about a

continuance of the case, even though Judge Platzer asked him to

stop. Persistence, of course, is no violation of the Rule. Mr.

Von Zamft spoke to Judge Platzer only about scheduling. The

Referee also found that the result was a recusal of the trial

judge. How is that prejudicial to the administration of justice?

request. Finally, the Referee found that Mr. Von Zamft’s

statements provided fodder (although clearly without merit) for Mr.

Guralnick at later appeals stages following a conviction of his

client. First, there is no evidence that any such issue was raised

on appeal. This is shear speculation. Second, the Referee himself

recognized that any such use would be clearly without merit.

Third, there is nothing in the record that even hints at the result

-28-

This Court must declare Rule 4-8.4(d) unconstitutional on its

face.

-29-

It is fundamental that the Bar has the burden of proving the

The record is devoid of any evidence that Mr. Von Zamft

intended to engage in conduct prejudicial to the administration of

justice or that he did engage in conduct prejudicial to the

administration of justice.

Mr. Von Zamft testified that he told Judge Platzer that if the

of a reversal was great. She did not need to have her first

capital case reversed. It would not be good for her (T.37-38).

His intent was to have the judge grant a continuance in order that

both sides would be able to try the case fairly (T.38). There is

no need to waste a judge’s time by trying a case two and three

times, especially a complicated murder case, because a defense

attorney is not ready (T.38).

Mr. Von Zamft and Judge Platzer had had conversations about

law, general advice, etc. (T.42). One conversation concerned

reversals. Judge Platzer had said that she thought that the

attorneys in front of her probably should give her better advice to

-30-

avoid reversals, so she could make correct decisions. Knowing

that, and with his knowledge of what was going on, his view of

capital cases that he had tried, and his relationship with her, Mr.

Von Zamft expressed the view that he did not think that she should

make a mistake and try it then (T.43).

Ms. Seff had told him that she and Mr. Guralnick had talked

and that they had both agreed that they needed more time (T.118).

He was trying to help the justice system and prevent a miscarriage

of justice (T.118). It was simply a matter of scheduling. If Ms.

Seff had told him that Mr. Guralnick opposed a continuance, he

absolutely would not have said anything to Judge Platzer (T.119).

He spoke to Judge Platzer because of his interest in justice

and his interest in insuring that both sides receive a fair trial.

He also thought that Judge Platzer’s first capital case should not

start out with a problem. He thought he was helping the judge

(T.124).

very long period of time, so she granted the request for a

continuance (T.54).

-31-

She was not concerned about Mr. Von Zamft’s comment because it

did not affect her. She did not pay any attention to what he said.

He was not going to influence her at all (T.68-69).

Mr. Von Zamft never mentioned the evidence in the case. He

never discussed the prosecution’s case or its theory, or the

defenses theories. He simply said that the matter should be

continued. This was a scheduling matter (T.69).

A hearing was held two days later on the motion to continue.

Guralnick’s statement that he was under time pressure and

constraints and that it would be better for him and nice if the

-32-

Former Chief Justice Kogan testified that he is familiar with

the allegations against Mr. Von Zamft. Assuming that Mr. Von Zamft

had a conversation with Judge Platzer about a capital case that was

before her, and assuming that Mr. Von Zamft suggested to her that

she should grant a continuance of the trial because defense counsel

was involved in another capital trial which had not yet concluded,

and assuming that defense counsel would not be ready for the

capital trial before Judge Platzer, and assuming that if a

continuance were not granted that the conviction, if obtained,

might be set aside as some later date because of the

ineffectiveness of defense counsel, his opinion is that Mr. Von

Zamft’s statements to Judge Platzer did not constitute a violation

of the ethical rules of the Florida Bar because the statements did

not go to the merits of the case (T.95-96). The statements

concerned scheduling. Certainly, they did not go to the merits of

the case (T.96-97).

His opinion is that Mr. Von Zamft’s statements generally were

not prejudicial to the administration of justice. He, as a circuit

judge, would appreciate an attorney who told him that particular

information in order that he would not be wasting the system’s time

in trying a case that eventually would be reversed and sent back

for a new trial (T.97).

On cross-examination, he testified that the relationship

between Judge Platzer and Mr. Von Zamft did not change his opinion.

If anything, it would probably strengthen his opinion. Mr. Von

-33-

Zamft was trying to advise a friend that there could be a problem.

If there were a conviction it might have to be retried if a

continuance was not granted (T.98).

The Referee noted that:

". . . Respondent . . . testified that he would not

have spoken to the trial judge if he did not think that

both attorneys wanted the continuance . . . and that he

was trying to help the trial judge avoid a potential

retrial of this, her first capital case.

The trial judge invited the Respondent to lunch on

the Respondent’s birthday. At that luncheon the

Respondent said he wanted to tell her something about the

Labrant (sic) case. The trial judge immediately advised

him not to do so; the Respondent persisted saying that he

needed to; the Respondent testified that if the trial

judge had asked him not to say anything he did not hear

it, and that if she had said not to talk about it he

would not have . . . the trial judge testified that she

told him again not to discuss the case; and the

Respondent then continued to advise her that it would be

in her best interest and everyone elses’ best interest to

continue the case to avoid a possible Rule 3.850 problem

because defense counsel Guralnick could not possibly be

ready . . .

* * *

The Respondent argues that his attempt to obtain a

continuance was a scheduling matter, not prohibited by

the rules, as opposed to something affecting the merits

of the case. Further, that his intent was to assist the

court in avoiding a potential retrial, and therefore he

did not have the mens rea which he alleges is required

for acts prejudicial to the administration of justice.

Respondent emphasizes that he had no self interest in the

matter and was attempting to do the right thing. He

testified that he was ‘trying to help the system and

prevent a miscarriage of justice’.

The referee heard testimony, live and proffered,

from judges and a representative of the State Attorney’s

Office as to the outstanding reputation of the Respondent

and that he had a reputation for being ethical. In

-34-

addition, former Justice Jerald Kogan testified

(surprisingly without objection of the Bar) that in his

opinion the Respondent’s conversation with the trial

judge did not go to the merits of the case and therefore

was not in violation of the rules and was not prejudicial

to the administration of justice. He further supported

the other witnesses as to the Respondent’s reputation for

being truthful and of having the highest integrity."

(R.R. _____)

The Referee’s Recommendation provided that:

"If Respondent is to be believed, it was his good

intentions however, were misplaced and showed a lack of

good judgment. The Respondent placed the Judge in a

potential compromising position were there could have

been an ‘appearance’ of impropriety and undue influence.

The Judge, much to her credit, was forced to follow the

prudent course of recusing herself.

* * *

Rule 4-8.4(d):

The Referee, by clear and convincing evidence finds

that the respondent is guilty of the violation of the

above rule which provides that a lawyer shall not engage

in conduct in connection with the practice of law that is

prejudicial to the administration of justice . . . In the

instant case, even though admonished by the trial judge,

twice, the Respondent persisted in expressing his

opinions concerning a continuation of the case. The

result was a recusal of the trial judge and fodder

(although clearly without merit) for the defense counsel

at later appeals stages following the conviction of his

client." (R.R. 3-4)

The Referee’s finding is error.

The uncontradicted testimony was that Mr. Von Zamft attempted

to help the administration of justice.

The Referee went far afield. First, what difference does it

make that Mr. Von Zamft persisted in talking to Judge Platzer about

this scheduling matter? Second, that Judge Platzer recused herself

-35-

is immaterial. She had already granted a continuance predicated

solely upon Mr. Guralnick’s request. Moreover, Judges are

fungible. Certainly the Referee did not mean that one trial judge

was better than the other. Third, no fodder was given to defense

counsel. The Referee’s conclusion was shear speculation.

Additionally, there is nothing in the record that says that defense

counsel used it. Finally, the Referee himself found that this

fodder was clearly without merit.

This Court must reverse the Referee’s finding that Mr. Von

Zamft violated Rule 4-8.4(d).

Rule 4-3.5.(a) provides that:

seek to influence a judge, juror, prospective juror, or

Rule 4-3.5.(b) provides that:

adversary proceeding a lawyer shall not communicate or

proceeding is pending. . . ." (Emphasis Added)

It is plain that subsection (a) refers to conduct and

subsection (b) refers to communication. There is no other

reasonable reading of the two subsections.

-36-

The Referee found:

". . . While the Respondent professes that his

intention was meritorious, attempting to assist the judge

makes no exception concerning the merits of the case. .

. The matter should not have been broached with the trial

court judge under these circumstances without both the

State Attorney’s Office and defense counsel, Mr.

Guralnick being present. As set forth In Re McCafferty,

549 P.2nd 666 (Or. 1976) the court stated that ‘it is

immaterial whether the communication is an intentional or

a negligent violation of the rule’ (page 668) when there

is misconduct that the rule is designed to prevent."

(R.R. ____) (Emphasis Added)

First, the Referee misread the Rule.

Second, the Referee conceded that: ". . . it is true that the

communication was not intended to go to the merits of the case. .

. ." (R.R. 4).

P.2d 666 (Or. 1976). There, the lawyer wrote a letter to a

represented adverse party. The Supreme Court of Oregon held that

a negligent violation of the Rule is subject to disciplinary action

of the breach is apt to cause the harm the rules sought to prevent.

549 P.2d at 668. It further held that the purpose of the Rule was

to prevent a person from being deprived of counsel’s advice by

bypassing retained counsel. It was only then that the Supreme

Court of Oregon held that it was immaterial whether the direct

communication is an intentional or negligent violation of the Rule.

Here, Mr. Von Zamft’s communication with Judge Platzer related only

-37-

is total.

The Referee should have looked to Florida law. In order to

find that an attorney has acted with dishonesty, deceit,

misrepresentation, or fraud, the necessary element of intent must

requirement must hold in this case.

This Court must reverse the finding that Mr. Von Zamft

violated Rule 4-3.5.(a).

Rule 3-5.1.(a) of the Rules Regulating The Florida Bar

provides that: ". . . A memorandum of an admonishment shall

thereafter be made a part of the record of proceeding."

The Referee held and recommended that:

". . . An admonishment would likely suffice with

respect to this Respondent to prevent his further

violation of the Rules of Professional Conduct, provided,

however, that it should be published in order to

emphasize the concern of a court with similar violations

and all lawyer misconduct." (R.R. ____)

-38-

There simply is no provision for a published admonishment.

The Referee overlooked the last sentence of Rule 3-5.1.(a)

which provides that a memorandum of administration of an

admonishment shall be made a part of the record of the proceeding.

He confused the memorandum with publication.

that the attorney be found guilty and suspended for six months,

with automatic reinstatement. This Court held that:

". . . In reviewing the recommended discipline . .

. we find the referee overlooked Rule 11.10(4) of The

Florida Bar Integration Rule in recommending automatic

reinstatement at the end of a six-months’ suspension.

Rule 11.10(4) requires proof of rehabilitation for

reinstatement of any suspension of more than ninety

Accordingly, this Court ordered that the attorney be suspended

This case warrants the same relief. This Court simply should

order an admonishment.

-39-

Mr. Von Zamft offered to accept an admonishment and to take an

ethics course (Appendix). The Bar refused.

The Referee recommended an admonishment.

It would be most unfair to require Mr. Von Zamft to pay the

Bar’s costs under these circumstances.

This Court must declare Rule 4-8.4.(d) of the Rules Regulating

The Florida Bar unconstitutional, must reverse the findings of

guilt, must order simply a suspension, and must order that Mr. Von

Zamft pay no costs.

JEPEWAY AND JEPEWAY, P.A.

19 West Flagler Street

Suite 407

Miami, Florida 33130

Tele.: (305)377-2356

By: ______________________

Louis M. Jepeway, Jr.

Fla. Bar No. 113699

-40-

I HEREBY CERTIFY that a true and correct copy of the foregoing

Counsel, The Florida Bar, Suite M-100, Rivergate Plaza, 444

By: ______________________

Louis M. Jepeway, Jr.