          Supreme Court of Florida
                                  _____________

                                  No. SC11-2311
                                  _____________

                              THE FLORIDA BAR,
                                 Complainant,

                                         vs.

                               ANA I. GARDINER,
                                  Respondent.

                                   [June 5, 2014]

PER CURIAM.

      We have for review a referee’s report recommending that respondent Ana I.

Gardiner be found guilty of professional misconduct in violation of the Rules

Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for

one year. The Florida Bar filed a notice of its intent to seek review of the referee’s

report, challenging the referee’s recommended sanction and urging the Court to

disbar Gardiner from the practice of law. We have jurisdiction. See art. V, § 15,

Fla. Const. As discussed below, we approve the referee’s findings of fact and

recommendations as to guilt. However, we disapprove the referee’s

recommendation as to discipline. Considering Gardiner’s dishonest conduct and
the harm that her actions have caused to the administration of justice in a capital

first-degree murder case, we conclude that disbarment is the appropriate sanction.

                                      FACTS

      In December 2011, the Bar filed a complaint against Gardiner, alleging that

she engaged in misconduct in violation of several Bar Rules. A referee was

appointed to consider the matter. Following a hearing, the referee submitted his

report for the Court’s review, in which he made the following findings and

recommendations.

      During the period of time at issue in this case, Gardiner served as a circuit

court judge in the Seventeenth Judicial Circuit, in and for Broward County,

Florida. In 2007, she was the presiding judge in State v. Loureiro, No. 04-

15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder case. Former

Assistant State Attorney Howard Scheinberg was the lead prosecutor in the case. 1

On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-

degree murder. Thereafter, on April 30 and May 1, 2007, Gardiner presided over

the penalty phase of the case, and following those proceedings, the jury




      1. This Court has already considered the separate disciplinary case against
Howard Scheinberg for his conduct during these events. On June 20, 2013, we
suspended Scheinberg from the practice of law for two years. See Fla. Bar v.
Scheinberg, 129 So. 3d 315 (Fla. 2013).


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recommended the death penalty. On August 24, 2007, Gardiner entered an order

sentencing Loureiro to death.

      On Friday, March 23, 2007, several days before the jury returned its guilty

verdict in Loureiro, Gardiner was eating dinner at a restaurant when she

encountered Scheinberg. The referee noted that by all accounts, the meeting at the

restaurant was accidental and not planned. However, after dinner, Gardiner,

Scheinberg, and others decided to continue the evening at a bar. Scheinberg drove

to the bar with one member of the group, who was then a law student. During the

drive, this person raised with Scheinberg the possible appearance of impropriety

that might arise from the judge and the lead prosecutor in a pending murder trial

socializing while the case was ongoing. Scheinberg was upset by the conversation,

and he left the bar shortly after arriving. The referee found that Gardiner attempted

to learn what had upset Scheinberg and that she spoke with him on the phone

several times over the course of that weekend.

      The Loureiro trial resumed on Monday, March 26, and Gardiner did not

disclose her social interaction with Scheinberg. Subsequently, on March 27, after

the jury returned its guilty verdict, Gardiner and Scheinberg had a lengthy phone

conversation, during which Scheinberg told Gardiner about his discussion with the

law student on the way to the bar. The referee found that Gardiner assured

Scheinberg there was nothing for him to be concerned about and that she made a


                                        -3-
“conscious decision” not to disclose or make known her social interaction and

phone calls with Scheinberg.

      Beginning with their conversation on March 27, the referee found that

Gardiner and Scheinberg commenced a “significant personal and emotional

relationship.” Between March 23 and August 24, 2007, the day that Gardiner

imposed a sentence of death, she and Scheinberg exchanged 949 cell phone calls

and 471 text messages. In particular, on the day before, the day of, and the day

following Gardiner’s actual imposition of the death sentence, she and Scheinberg

communicated by phone and text 44 times. The referee further found that Gardiner

deliberately and knowingly chose not to disclose this emotional relationship to the

defense, despite her clear duty to do so.

      Loureiro’s attorneys filed a direct appeal from his conviction and sentence in

this Court. Shortly thereafter, various media sources began reporting allegations

that Gardiner and Scheinberg met socially at a restaurant and a bar during the

murder trial. As a result, in November 2008, the Judicial Qualifications

Commission (JQC) convened a panel to investigate the matter and determine

whether Gardiner engaged in misconduct. Gardiner appeared before the panel on

November 13, 2008. In her testimony, she failed to disclose the honest and true

nature of her relationship with Scheinberg. The referee found that Gardiner’s

testimony would leave any reasonable person with the misimpression that her


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relationship with Scheinberg was merely professional. She did not disclose their

emotional relationship or the significant number of personal phone and text

communications they exchanged during the penalty phase of the Loureiro trial.

She also did not disclose that her relationship with Scheinberg continued after the

trial and intensified. During the period from March 2008 through August 2008,

Gardiner and Scheinberg exchanged more than 3000 phone and text

communications. The referee found that Gardiner’s testimony during the JQC

proceedings was a “deliberate act of dishonesty and deceitfulness.” At the

conclusion of the JQC’s investigation, Gardiner received an admonishment based

on the appearance of impropriety that resulted from the judge and the lead

prosecutor socializing on one night while the capital first-degree murder trial was

ongoing.

      In Loureiro’s direct appeal, this Court relinquished jurisdiction to the circuit

court to consider the issue of the communications between Gardiner and

Scheinberg, and to determine whether a new trial was required. The Broward

County State Attorney hired a special prosecutor to conduct the investigation. On

April 30, 2009, Gardiner appeared for a deposition in that investigation. During

her testimony, she acknowledged for the first time her ongoing emotional

relationship with Scheinberg. Ultimately, the State Attorney’s office agreed to a




                                        -5-
new trial in the case. At the second trial, Loureiro was convicted and sentenced to

life in prison. In April 2010, Gardiner resigned as circuit judge.

      Based on these factual findings, the referee recommended that Gardiner be

found guilty of violating three Bar Rules. First, the referee found clear and

convincing evidence that Gardiner was dishonest and deceitful in failing to

disclose—during both the Loureiro trial and the 2008 JQC proceedings—her social

encounters with Scheinberg and their significant personal and emotional

relationship, in violation of Bar Rules 3-4.3 (the commission by a lawyer of any

act that is unlawful or contrary to honesty and justice may constitute a cause for

discipline) and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation). Additionally, the referee found clear and

convincing evidence that Gardiner’s conduct was prejudicial to the administration

of justice, both in the Loureiro case and in the 2008 JQC proceedings, in violation

of Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the

practice of law that is prejudicial to the administration of justice).

      The referee found two aggravating factors in this case: (1) Gardiner engaged

in multiple offenses, and (2) she has substantial experience in the practice of law.

The referee also considered seven mitigating factors: (1) Gardiner did not have a

prior disciplinary record; (2) she displayed significant personal or emotional

problems; (3) Gardiner testified freely and openly, and cooperated in the



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disciplinary proceedings; (4) Gardiner has demonstrated good character and has a

good reputation; (5) at the time of the circumstances involved in the instant case,

she suffered from clinical depression; (6) other penalties or sanctions have been

imposed against Gardiner; and (7) she has demonstrated remorse in her testimony

and courtroom admissions.

      As to the sanction, the referee recommended that Gardiner be suspended

from the practice of law for one year. The referee also awarded costs to the Bar in

the amount of $8,117.18.

      As noted, the Bar seeks review of the referee’s report and recommendations.

The Bar asks this Court to disapprove the referee’s recommended sanction and

instead disbar Gardiner from the practice of law.

                                     ANALYSIS

      Initially, because neither the Bar nor Gardiner challenges the referee’s

findings of fact and recommendations as to guilt, we approve those findings and

recommendations without further comment. We address here the referee’s

recommended sanction, a one-year suspension. In reviewing a referee’s

recommended discipline, this Court’s scope of review is broader than that afforded

to the referee’s findings of fact because ultimately, it is our responsibility to order

the appropriate sanction. See Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla.

1989); see also art. V, § 15, Fla. Const. However, this Court will not second-guess


                                          -7-
the referee’s recommended discipline as long as it has a reasonable basis in

existing case law and the Florida Standards for Imposing Lawyer Sanctions. See

Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).

      The Bar contends that given the evidence of Gardiner’s serious misconduct,

her knowingly dishonest actions and testimony, and the harm that her conduct

caused to the administration of justice in a death penalty case, the referee’s

recommendation of a one-year suspension is not supported. We agree.

      The relevant facts in this case are essentially undisputed. While serving as

the presiding judge in a capital first-degree murder case, Gardiner commenced a

significant emotional relationship with the lead prosecutor in the case. During a

five-month period, Gardiner and Scheinberg exchanged 949 cell phone calls and

471 text messages, including 44 phone and text communications on the day before,

the day of, and the day after Gardiner imposed the death sentence. Gardiner

intentionally chose not to disclose this relationship to the defense. She also did not

disclose the true nature of the relationship to the JQC during its investigation in

November 2008. And when the relationship and communications between

Gardiner and Scheinberg did come to light, the Broward County State Attorney

was required to incur additional expenses to investigate the matter and determine

whether a new trial should be granted. Ultimately, the Loureiro case was retried,

further consuming court resources, and Loureiro was sentenced to life in prison.


                                         -8-
      In his report, the referee found that Gardiner’s conduct was deliberate and

knowing. As a judge, Gardiner knew or should have known of her obligation to

avoid even the appearance of impropriety. Although Gardiner asserts that she did

not recognize at the time that her social interaction with Scheinberg and their

subsequent emotional relationship should have been disclosed, the referee found

her explanation was not credible. Moreover, the factual findings indicate that she

was placed on notice that her conduct could lead to an appearance of impropriety

when Scheinberg told her about his conversation with a then law student on the

way to the bar. Gardiner made a choice not to disclose the social interaction at that

time and to continue her emotional relationship with Scheinberg. She did not

disclose the relationship during the remainder of the Loureiro trial, and she did not

describe the true nature of the relationship during the proceedings before the JQC.

We agree with the referee that regardless of her motive or reasons for doing so, it is

clear that Gardiner’s conduct was dishonest and misleading.

      It is also clear that Gardiner’s actions created an appearance of impropriety

in the Loureiro case. Cf. In re Adams, 932 So. 2d 1025, 1027 (Fla. 2006) (stating

in a judicial disciplinary proceeding that “[e]ven in the absence of evidence that a

romantic relationship with an attorney practicing in a judge’s court has influenced

the judge’s judgment, the judge’s authority necessarily suffers” and “the judge

necessarily depletes the single most important source of his or her authority—the


                                        -9-
perception of the legal community and public that the judge is absolutely impartial

in deciding cases.”). Significantly, we note that Loureiro was a capital first-degree

murder case, in which Gardiner could and did impose the ultimate sentence of

death. The referee found that Gardiner’s failure to disclose her emotional

relationship with Scheinberg tainted the entire legal process. In all cases, due

process requires that the proceedings must both be and appear to be fundamentally

fair. See Steinhorst v. State, 636 So. 2d 498, 501 (Fla. 1994). Personal conduct of

a judge suggesting a bias in favor of the prosecutor is an extraordinarily serious

matter in a death penalty proceeding. Here, Gardiner’s actions led this Court to

relinquish jurisdiction of the Loureiro case to the circuit court for a determination

of whether a new trial was required. The Broward County State Attorney hired a

special prosecutor to conduct an investigation of Gardiner’s actions during

Loureiro’s trial. And, ultimately, a new trial was required. The special prosecutor

concluded that Gardiner’s misconduct tainted the proceeding to such an extent that

Gardiner’s decision to impose the death sentence could not stand.

      Given these facts, we believe that Gardiner’s misconduct warrants a severe

sanction. In considering the separate disciplinary case against Scheinberg, we

noted that there is little case law from this Court addressing the situation presented

here, where a judge and attorney engage in an emotional relationship, including

extensive personal communications, in a capital case, and do not disclose those



                                        - 10 -
communications to the opposing party. Fla. Bar v. Scheinberg, 129 So. 3d 315,

318 (Fla. 2013). In Scheinberg, we considered Florida Bar v. Mason, 334 So. 2d 1

(Fla. 1976), in which the Court suspended an attorney for one year for egregious ex

parte communications with justices of the Florida Supreme Court concerning a

pending case. In Mason, the Court noted that the ex parte communications at issue

were “fundamentally wrong” and that “there can be no temporizing with an offense

the commission of which serves to destruct the judicial process.” Id. at 6.

Although there is no dispute that the communications between Gardiner and

Scheinberg did not pertain to the Loureiro case, we find guidance in Mason

because Gardiner’s actions similarly harmed the judicial process. Because

Gardiner was the presiding judge at the time of her conduct, she had a greater

responsibility to preserve the integrity of the judicial process and to ensure that the

Loureiro trial was fair. Considering Gardiner’s dishonest conduct during the trial

and in her subsequent testimony before the JQC and the impact of her actions on

the administration of justice in a death penalty case, we conclude that disbarment is

the appropriate sanction.

      Finally, in determining the sanction, we have considered the referee’s

findings in aggravation and mitigation. As aggravation, the referee found that

Gardiner engaged in multiple offenses and has substantial experience in the

practice of law. As mitigation, the referee found that Gardiner did not have a prior


                                         - 11 -
disciplinary record; she displayed significant personal or emotional problems;

Gardiner testified freely and openly, and cooperated in the disciplinary

proceedings; she has demonstrated good character and has a good reputation; at the

time of the circumstances involved in the instant case, she suffered from clinical

depression; other penalties or sanctions have been imposed against Gardiner; and

she has demonstrated remorse in her testimony and courtroom admissions. Indeed,

the referee found that other than the circumstances involved in this case, the

testimony as to Gardiner’s good character and reputation was overwhelming.

Nonetheless, we conclude that these mitigating factors do not outweigh Gardiner’s

serious ethical misconduct.

                                   CONCLUSION

       Accordingly, Gardiner is hereby disbarred. The disbarment will be effective

thirty days from the date of this opinion so that Gardiner can close out her practice

and protect the interests of existing clients. If Gardiner notifies this Court in

writing that she is no longer practicing law and does not need the thirty days to

protect existing clients, this Court will enter an order making the disbarment

effective immediately. Gardiner shall fully comply with Rule Regulating the

Florida Bar 3-5.1(h). Further, Gardiner shall accept no new business from the date

this opinion is filed.




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      Judgment is entered for The Florida Bar, 651 East Jefferson Street,

Tallahassee, Florida 32399-2300, for recovery of costs from Ana I. Gardiner in the

amount of $8,117.18, for which sum let execution issue.

      It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.

Original Proceeding – The Florida Bar

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida,
Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, and Jennifer R.
Falcone, Bar Counsel, The Florida Bar, Miami, Florida,

      for Complainant

J. David Bogenschutz of Bogenschutz, Dutko & Kroll P.A., Fort Lauderdale,
Florida,

      for Respondent




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