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What’s Your Day Job Judge Marni Bryson is Asked While Under Judicial Investigation

Palm Beach County Judge Marni Bryson was charged in April with violating judicial canons that require judges to work fulltime.



Accusations against judge of sexting, nude photos, burglary emerge in lawsuit

JUL 1, 2021 | REPUBLISHED BY LIT: SEP 5, 2021

When Palm Beach County Judge Marni Bryson was charged in April with violating judicial canons that require judges to work fulltime, it wasn’t her first brush with controversy.

Almost exactly two years earlier, she filed a $10 million lawsuit against politically powerful Fort Lauderdale lawyer William Scherer, accusing him of trying to extort her by threatening to release nude photos of her.

The cases threaten both Bryson’s personal and professional life along with the reputations of Scherer and others who have been dragged into the salacious legal fray.

While one dispute played out quietly as judicial watchdogs engaged in behind-the-scenes talks with unnamed sources about Bryson’s attendance record, the other exploded into public view.

Detailed in court records, it exposes the personal lives of a prominent Broward County land-use attorney, her ex-husband, a well-known political consultant who was married to Bryson, and, of course, Bryson herself.

But, despite the sordid allegations of sexting or less-scintillating accusations that she failed to show up for work, the 47-year-old two-term jurist shows no sign of backing down from the legal fights against powerful people and institutions.

Already, she has won key battles.

A Treasure Coast circuit judge, who is presiding over the extortion case after Palm Beach County judges recused themselves, ruled Bryson can seek punitive damages against Scherer on her claims of intentional affliction of emotional distress. The decision is being appealed.

Further, Bryson persuaded attorney Mayanne Downs, a member of the Judicial Qualifications Commission, to recuse herself because she is close friends with Chief Palm Beach County Judge Krista Marx.

In court papers, Bryson’s attorney said he plans to call Marx’s credibility into question when the six-member panel meets in November to weigh allegations that Bryson “failed to devote full time and attention to your judicial duties” from 2016 through 2019. Bryson is also accused of failing to report her absences to Marx.


Still, despite the recent wins, attorneys representing Scherer and the JQC claim that Bryson is waging quixotic battles.

The JQC’s case doesn’t depend on Marx’s testimony, attorney Henry M. Coxe III said in court papers filed on behalf of the agency that reviews complaints against state judges.

Data and other witnesses will show that Bryson “was often absent from her designated court facility,” he wrote.

‘Even John Grisham’s best work of fiction’

Likewise, attorney Javier Lopez, who represents Scherer, said Bryson’s case is doomed.

“What has become apparent is that Ms. Bryson seems to have a tortured relationship with the truth,” he said. “Her complaint against Mr. Scherer is something that even John Grisham’s best work of fiction would have a hard time competing with.”

Attorney Paul Turner, who represents Bryson, said such remarks are typical of Scherer’s effort to vilify his client, who served as an assistant state attorney general, an assistant public defender and was in private practice before being first elected in 2010.

“Everything Judge Bryson has said is true and the defendants can’t get around it,” he said in a statement.

“They don’t like the truth, they don’t like the facts, they don’t like that they are on the hook for punitive damages now, and they don’t like that they couldn’t scare my client into remaining silent.”

Like the focus on the nude photos, the verbal assaults are an attempt to taint Bryson and obscure her motives, he said.

“They continually attack her to draw attention away from what she really is, a mother who was protecting her child,” Turner said.

It all started with a child-visitation dispute

By any measure, the underlying allegations in the lawsuit could be plucked from a cheesy bestseller or a country song.

The dispute began with allegations of infidelity, which led to divorce, acrimony, jealousy and despair.


From there, it spun out of control.

Concerned that her ex-husband, Blake MacDiarmid, hadn’t visited their infant son for months, Bryson in 2015 headed back to court to try to change their child-sharing agreement.

Bryson had been married to MacDiarmid less than a year and had just given birth when the campaign consultant began staying out late at night, claiming he was meeting with candidates, she claims.

After the 2014 divorce, he stopped picking up their son for visitation. Bryson said she wanted to change the agreement so she could limit his access to his child, who wouldn’t recognize his father and would be traumatized if he took him.

Subpoena for her ex-husband’s girlfriend?

To prove MacDiarmid’s absences, Bryson said she wanted to subpoena his then-girlfriend, Stephanie Toothaker, a Democratic fundraiser and legal adviser who was flirting with a congressional bid.

The Fort Lauderdale land use and government relations attorney could testify that MacDiarmid was with her when he was supposed to be taking care of his son, Bryson said.

William Scherer was once an attorney for former Florida Gov. Rick Scott.

When she received a notice of the subpoena, Toothaker went to Scherer, who specializes in complex business litigation, represented George Bush in his 2000 recount fight and is considered a Republican kingmaker.

Claiming she feared Bryson, Toothaker asked Scherer to block the subpoena and any other legal action Bryson was planning.

Scherer claims his investigation led him to believe that Toothaker and her estranged husband and Bryson and her ex-husband were in a twisted “love rectangle.”

He said he “was provided” nude photos Bryson allegedly sent to Toothaker’s soon-to-be ex-husband, Peter Kemp, and text messages he believed Bryson sent MacDiarmid, threatening to kill Toothaker.

He also had a copy of a report Toothaker filed with Fort Lauderdale police, claiming Bryson had broken into her house.

There also was an anonymous letter that Toothaker believed Bryson sent to her law partners, Broward County commissioners and officials at her private club. The letter detailed her affair with MacDiarmid and other indiscretions that the letter writer said would soon be released to the media.

With that information in hand, Scherer said, he called West Palm Beach attorney Jack Scarola for a chat. He said he thought Scarola, who he’d known for years, represented Bryson.

Scherer said his purpose was pure.

“I said it would be embarrassing to all four of them, both husbands and both wives, because I described it to him as a very messy, nasty two-year … love rectangle of sorts,” Scherer said during a deposition.

“I wasn’t going to Mr. Scarola and blaming his client any more than I was trying to exonerate mine,” he continued. “I was trying to get them to stand down and that was the purpose of the meeting with Mr. Scarola.”

But, when Scarola told Bryson about what Scherer said at the meeting, she didn’t believe Scherer was trying to stop four people from hurting each other.


‘Faced with being publicly humiliated’

Knowing she was facing a re-election campaign, Scherer was threatening to release the photo and the police report if she didn’t drop her plans to use Toothaker to protect her young son, Bryson said.

“I was faced with being publicly humiliated by him and this purported photo as well as an allegation of a burglary I knew nothing about,” she said during a deposition. “I was in the middle of an election where any of this news would have not only been a local media sensation but perhaps a national media sensation.”

She said the only nude photo she sent to any man was to MacDiarmid when she was taking pictures to chronicle her pregnancy.

When Lopez pointed out that Kemp had testified that she texted him the photo and he had shared it with Toothaker, Bryson’s response was unequivocal.

“He’s lying,” she said.

Stephanie Toothaker, a lawyer with the Fort Lauderdale firm Tripp Scott, considered a run as a Democratic candidate for Congress in 2016.

She said he was also lying when he testified that she danced topless when she called him on a video chat. While he also received a photo of a vagina he shared with Toothaker, he said he didn’t believe it came from Bryson who he texted with regularly in 2014.

Bryson further denied that she ever threatened Toothaker. A text message that Lopez claims she sent to MacDiarmid included a reference to a violent rap song that was labeled “for your GF.”

“I will kill her. And her Falcon nose,” it continued.

Bryson said she didn’t remember sending the text to MacDiarmid and her ex-husband’s claims that she did were dubious at best.

“Just because Blake says it’s from me doesn’t mean it’s from me,” she said. “As we know, Blake’s had some problems in the past as far as being truthful.”

Still, Bryson acknowledged, she may have made some disparaging remarks about Toothaker.

“I don’t recall saying that she had a falcon nose,” she said during a deposition. “But I’m sure I said many mean things about her at that period of time. I was very angry.”

Attorney didn’t think it was a threat

But, Lopez said, a bigger problem for Bryson is that Scarola doesn’t share her view of the purpose of Scherer’s visit.

During the roughly half-hour meeting at his West Palm Beach office, Scarola said he didn’t believe Scherer was threatening Bryson.

“We did not talk about matters that I personally viewed as an extortion attempt,” Scarola said in a signed affidavit. “The thrust of the conversation was that this situation was messy and would not reflect well on anyone involved.”

Scherer never threatened to release the nude photos or any of the other documents he had gathered against Bryson, Scarola said.

Instead, Scherer explained that he believed the release of the damaging information was inevitable if Bryson pursued plans to have Toothaker testify in the custody dispute. Scherer also mentioned the impact that could have on Bryson’s judicial career, Scarola said.

But, Scarola insisted, he didn’t think Scherer was trying to use him to threaten Bryson. Instead, Scarola said he viewed it as an opportunity to help Bryson, whom he’d supported in her judicial campaigns.

“The only remorse I felt was that Judge Bryson was having to deal with the emotional trauma of protecting herself and her child in a legal battle that seemed to be devolving at the hands of her former husband into increasingly lower levels of nastiness,” he said. “Mr. Scherer did not threaten to obstruct Judge Bryson’s pending litigation.”

While questioning Bryson, Lopez insisted that Scarola’s statement destroys the crux of her case against Scherer. The only person who could testify that Scherer threatened Bryson is Scarola, who claims it didn’t happen, he said.

Bryson disagreed. “It’s my testimony as to what (Scarola) said to me, what was relayed to me, what I took away from that conversation,” she said. “I’m not calling him a liar as to his personal recollection.

“What he writes is his personal opinion or personal memory of something,” she continued. “My memory contradicts him. I’m not calling him a liar. Okay?”

The bigger question, her attorneys said, is why Scherer went to Scarola to talk about Bryson’s plan to call Toothaker to testify in the custody dispute instead of talking to the divorce lawyer who was representing her.

Scherer said he contacted Scarola because he understood the lawyer he had known for years was representing Bryson in a separate lawsuit he was told she planned to file against Toothaker.


Scherer acknowledged that Scarola told him he wasn’t representing Bryson and knew nothing about her ongoing domestic strife. But, Scherer said, he also understood Scarola had represented Bryson before.

“I felt that his involvement would help resolve what I believed to be a very nasty dispute that ought to be resolved,” Scherer said.

In court papers, Bryson’s attorneys said Scherer was obligated to talk to Bryson’s divorce lawyer, who was handling the custody dispute.

When the case goes to trial, they said, they plan to call an expert witness to testify that Scherer’s decision to sidestep Bryson’s divorce lawyer was a violation of professional rules of conduct.

Scherer’s attorney said they will call their own expert who will testify that he did the right thing.

For his part, Scherer said his plan worked.

“After that meeting, all these hostilities basically stopped,” he said. “So, you know, up to the time of the lawsuit against me almost four years later, I thought I had really done a good job for these people.”

‘Is he going to do it again?’

But, Bryson said, she was haunted by what happened.

While she ultimately got the child-custody agreement changed without calling Toothaker to testify, it wasn’t easy.

She was forced to undergo a paternity test after MacDiarmid claimed he wasn’t the boy’s father. After the test came back positive, he agreed she could control when he could see their son. He has never asked to do so, she said in the deposition.

Still, she worried about what Scherer might do if custody issues surface in the future.

“Is he going to do it again?” she asked.

Also, she said, she had growing concerns that Scherer might decide to use the information he gathered against her for other purposes.

“What’s going to happen if he has a personal interest in one of the cases that I’m handling as a judge?” she said. “Is he going to do it again?”

“This person cannot get away with it,” she said. “It shouldn’t have happened to me. It shouldn’t happen to anybody.”

That’s why, in 2019, she decided to file the suit.


But, the years-long delay has hurt both sides.

Emails and texts have been deleted. Memories have faded.

When Kemp and Toothaker were deposed, they said they couldn’t remember much of what transpired.

Kemp said he had blocked the memories of what was a dark period in his life. Although he and Toothaker divorced, they remain friendly and often vacation together with their son, he said.

Shortly after the lawsuit was filed, Bryson learned she was under investigation by the JQC, according to court papers filed by Coxe, who is representing the agency.

In her response to the allegations, she claims she worked hard. While serving in county criminal court, handling misdemeanor offenses, she volunteered to help circuit judges by presiding over felony trials, including murder cases.

Her pace continued when she was moved to the south county courthouse to handle minor civil cases, such as evictions, said attorney Scott Richardson, who represented Bryson before he was replaced by lawyer Robert Watson.

However, in 2019, she was plagued by serious health problems, including a ruptured appendix. Despite that, she cleared more cases than her predecessor, he said.

Further, Richardson said, there is no rule that dictates how many hours a judge must work or whether they are prohibited from working from home.

He accused the JQC of engaging in “selective prosecution, leading to a biased and discriminatory result.”

Whether the lawsuit Bryson filed against Scherer spurred the JQC investigation is unknown. Lopez said there could be a connection.

Even if there is, Bryson said, she has no regret about filing the lawsuit which she views as necessary to protect her son. Scherer needs to be held accountable, she said.

“He’s disgusting and reprehensible and everyone should know about it,” she said of Scherer. “I’m done. I’m done playing this game.”


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Judges’ Referrals and Complaints About Lawyers Rules Change Adopted by Florida Supreme Court

Judicial Referrals to Receive Special Treatment as proposed by the Florida Bar





OCT 21, 2021 | REPUBLISHED BY LIT: JAN 10, 2021


Before the Court is the petition of The Florida Bar (Bar) proposing amendments to the Rules Regulating the Florida Bar (Bar Rules).

We have jurisdiction. See art. V, § 15, Fla. Const.

The Bar proposes the addition of new rule 3-7.18

(Disposition of Inquiries or Complaints Referred to the Bar by Members of the Judiciary).

The new rule establishes a process by which the Board of Governors of The Florida Bar and the Court will review and approve the disposition of referrals regarding lawyer misconduct from members of the judiciary that do not result in a finding of probable cause or the filing of a formal complaint if a finding of probable cause is not required.

The new rule is the product of the Special Committee on Examination of Judicial Referral Process, which was tasked with determining the most effective and efficient process to address judicial referrals of lawyer misconduct. Both the Special Committee and the Board of Governors approved the new rule, and consistent with Bar Rule 1-12.1(g), the Bar published formal notice of its proposal in The Florida Bar News.

The notice directed interested persons to file their comments directly with the Court.

No comments were received.

Having considered the Bar’s petition, we adopt new rule 3-7.18 with the following modifications.

We decline to adopt subdivisions (d)(2)(A) (Time Period for Review) and (d)(2)(B)(v), and renumber or reletter the other provisions within subdivision (d) accordingly.

The two subdivisions, respectively, would have required the Court to act on the Board of Governors’ recommendation and summary report within thirty days of its submission, and would have authorized the Court to successively extend the thirty-day period for an additional thirty days as needed.

The Bar does not identify a specific need for these restraints.

Accordingly, the Rules Regulating the Florida Bar are amended as set forth in the appendix to this opinion. New language is indicated by underscoring. The amendments shall become effective December 20, 2021, at 12:01 a.m.
It is so ordered.



Original Proceeding – Florida Rules Regulating the Florida Bar

Joshua E. Doyle, Executive Director, Michael G. Tanner, President, Gary S. Lesser, President-elect, Paige A. Greenlee and Michael Fox Orr, Co-Chairs, Special Committee on the Examination of the Process and Procedures for Judicial Referrals of Discipline Matters to The Florida Bar, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida, for Petitioner



(a) Definitions.

Wherever used in this rule, the following words or terms have the following meaning:

(1) Disposition.

A disposition of an inquiry or complaint is the termination of an inquiry or complaint before a finding of probable cause or the filing of a formal complaint where a probable cause finding is not required. A disposition includes a:

(A) decision not to pursue an inquiry;

(B) dismissal of a disciplinary case;

(C) finding of no probable cause;

(D) finding of no probable cause with issuance of a letter of advice;

(E) recommendation of diversion; and

(F) recommendation of admonishment for minor misconduct.

(2) Judicial Referral.

A judicial referral is an inquiry, communication, or complaint questioning the conduct of a member of the bar submitted to the bar by a member of the judiciary. A judicial referral also includes a court order, judgment, or opinion specifically referring to the bar a matter questioning the conduct of a member of the bar.

(b) Suspension of Deadlines for Final Disposition of Judicial Referrals.

All deadlines for final disposition elsewhere in these rules are suspended under this rule. No disposition of a judicial referral will become final until the review required by this rule is complete.

(c) Review by Board of Governors. The disciplinary review committee will review all dispositions of judicial referrals first and will recommend a disposition to the board. The board may accept or reject the recommended disposition. If the board rejects the recommended disposition, the board may:

(1) refer the matter to a grievance committee for additional investigation or review;

(2) find probable cause, and the case will proceed accordingly;

(3) recommend a different disposition to the Supreme Court
of Florida.

The executive committee may act on behalf of the board or disciplinary review committee in connection with its review of dispositions of judicial referrals as specified with other disciplinary matters under these rules.

(d) Supreme Court of Florida Review.

The Supreme Court of Florida may review the board’s recommendation for approval of dispositions of judicial referrals.

(1) Submission of Summary Report and Documents.

The bar will submit the board’s recommendations for approval of judicial referrals to the clerk of the Supreme Court of Florida as soon as practicable after the board’s decision but not later than 30 days.

The submission will include a summary report of the inquiry or complaint; the nature of the alleged rule violations; the board’s recommended disposition; the judicial referral; any response by the respondent; applicable orders, decisions, opinions, or communications by the judge or court; and all other non-confidential documents considered by the board.

(2) Supreme Court of Florida Actions. The Supreme Court of Florida may take the following actions:

(A) approve the board’s recommended disposition;

(B) reject the board’s recommendation, which will be deemed a finding of probable cause and direction to the bar to file a formal complaint;

(C) refer the matter back to the board for further review, with or without a recommendation or guidance; or

(D) request that the bar provide additional information.

October 21, 2021

Case No. SC21-653. In re: Amendments to Rules Regulating The Florida Bar – Rule 3-7.18.

On October 21, 2021, the Supreme Court of Florida adopted new rule 3-7.18 setting forth procedures for handling referrals of lawyers to the bar by the judiciary which includes review of staff and bar closures of those cases by the Supreme Court of Florida.

Amendments are effective December 20, 2021.


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Secret and Sealed Attorney Discipline Case in SDFL

Florida attorney Kenneth Edward Walton II Suspended from the Practice of Law with immediate effect. It only took nearly a year from the complaint.



Unknown Case Title


District Court, S.D. Florida

JAN 4, 2022 | REPUBLISHED BY LIT: JAN 4, 2022

Bookmark for updates.

Jan 19, 2022


On December 20, 2021, the Supreme Court of Florida entered an Order of Suspension, suspending Kenneth Edward Walton, II from the practice of law.

See The Florida Bar v. Walton, No. SC21-243, 2021 WL 6013465 (Fla. Dec. 20, 2021) [ECF No. 1].

The suspension was predicated on an uncontested report of the referee, which was based upon an Unconditional Guilty Plea for Consent Judgment. (See [ECF No. 2]).

Rule 9(b) of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys, Local Rules of the United States District Court for the Southern District of Florida, provides that “[a]n attorney . . . who shall be suspended . . . on consent . . . from the bar of any state . . . while an investigation into allegations of misconduct is pending shall . . . cease to be permitted to practice before this Court and be stricken from the roll of attorneys admitted to practice before this Court.” Id. (alterations added).

Under these circumstances involving suspension on consent, service of an order to show cause is unnecessary, and the attorney may be immediately suspended.

In accordance with Rule 9(b) and the inherent authority of this Court to oversee officers admitted to membership in its bar, see Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (“[A] federal court has the power to control admission to its bar and to discipline attorneys who appear before it.” (alteration added)),

IT IS ORDERED that Mr. Walton is suspended from practice in this Court, effective immediately.

Mr. Walton may not resume the practice of law before this Court until reinstated by court order. See Rule 12(a).

The Clerk of Court shall strike this attorney from the roll of attorneys eligible to practice in the United States District Court for the Southern District of Florida and shall also immediately revoke the attorney’s CM/ECF password.

IT IS FURTHER ORDERED that Mr. Walton shall advise the Clerk of Court of all pending cases before this Court in which he is counsel or co-counsel of record.

IT IS FURTHER ORDERED that the Clerk of Court attempt to serve by certified mail a copy of this Order of Suspension upon Mr. Walton at his court record and Florida Bar addresses.

DONE AND ORDERED in Miami, Florida, this 19th day of January, 2022.



c:         All South Florida Eleventh Circuit Court of Appeals Judges

All Southern District of Florida District Judges, Bankruptcy Judges, and Magistrate Judges United States Attorney

Circuit Executive Federal Public Defender

Clerks of Court – District, Bankruptcy, and 11th Circuit Florida Bar and National Lawyer Regulatory Data Bank Library

Kenneth Edward Walton, II



Supreme Court Case No. SC-

The Florida Bar File Nos.

2019-70,668 (11P)
2020-70,037 (11P)



2020-70,204 (11P)


The Florida Bar, complainant, files this Complaint against Kenneth Edward Walton II, respondent, pursuant to the Rules Regulating The Florida Bar and alleges:

1. Respondent is and was at all times mentioned herein a member of The Florida Bar admitted on September 29, 1999, and is subject to the jurisdiction of the Supreme Court of Florida.

2. Respondent practiced law in Miami-Dade County, Florida, at all times material to this complaint.

3. The Eleventh Judicial Circuit Grievance Committee P found probable cause to file this complaint pursuant to Rule 3-7.4, of the Rules Regulating The Florida Bar, and this complaint has been approved by the presiding member of that committee.



4. Salenna Burgess originally retained respondent for a file review related to a bankruptcy matter. Respondent completed the file review promptly and well by all accounts.

5. In or around April 2018, Ms. Burgess decided to retain respondent to handle her bankruptcy matter, following a bad experience with her prior attorney and based on recommendations respondent made during the file review.

6. Ms. Burgess paid respondent $6,000.00 for the representation.

7. Although communication was good at the outset of the representation, respondent became more difficult to reach as time went by.

8. On June 7, 2018, respondent forwarded correspondence dealing with Ms. Burgess’ matter to the client.

9. Roughly three months later, Ms. Burgess emailed respondent on September 5, 2018, requesting an update on the status of her case.

10. When she did not hear from respondent for about ten days, Ms. Burgess followed up with him on September 13, 2018.

11. Respondent replied that same day and represented to Ms.Burgess that he would work on her case over the weekend. Notably, at that time, respondent apologized to Ms. Burgess for not being more prompt in his reply “or communicating better.” He stated in his email to her that his lack of communication was “unacceptable, inexcusable, and embarrassing.”

12. Afterward, respondent ceased communication with Ms. Burgess, even though Ms. Burgess emailed him on October 2, 2018; October 5, 2018; October 9, 2018; and October 22, 2018.

13. Months later, respondent finally replied to Ms. Burgess on December 21, 2018. Respondent wanted to discuss with his client what he characterized as “everything that has and hasn’t happened” in her case.

14. Following that email, Ms. Burgess and respondent spoke about her case. According to her bar grievance, Ms. Burgess said respondent apologized to her for what respondent described as his own unacceptable behavior.

15. Ms. Burgess communicated with respondent once more in January 2019. However, at the end of the month, when Ms. Burgess resumed requesting updates on her case, communication ceased until March 12, 2019.

16. In the March 12, 2019, email, respondent forwarded an email to Ms. Burgess regarding her bankruptcy case and stated he was on his way to court. He promised to download and email the docket to her that day.

17. When Ms. Burgess filed her grievance with the bar on May 7, 2019, she had still not heard from respondent regarding her case.

18. On January 15, 2020, respondent provided a statement to the bar where he admitted he “initially did a poor job of helping her understand that the work was completed and explaining the meaning of the all of the final documents we received back from the bankruptcy court.”

19. Additionally, respondent stated Ms. Burgess “successfully completed her 60 months in Chapter 13, however she could not enjoy it as soon as it happened because of my poor communication.”

20. Significantly, in that same January 15, 2020, communication to the bar, respondent stated he was medically incapacitated for the majority of his representation of Ms. Burgess. He stated to the bar, “[t]o this day, I am still under doctor’s care for one of the conditions that seriously affected how I represented Ms. Burgess and will be treating for the rest of my life it appears. Although, I am lightyears ahead of where I was most of the past two years, I am still improving as each week passes.”

21. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 4-1.3 (Diligence); (4-1.4 Communication); and 4-1.16(a) (When Lawyer Must Decline or Terminate Representation).



22. Respondent was hired as the closing agent by the buyer for the preparation of documents related to a real estate transaction for 429 NW 43rd Street in Miami, Florida.

23. Sandor Urban was the realtor on behalf of the seller in this transaction.

24. Mr. Urban and his client were notified of the closing date, time and location. They went to respondent’s office at the agreed-upon time on or around October 18, 2019, at 4:00 p.m.

25. Respondent’s staff was unaware of the appointment.

Nonetheless, Mr. Urban and his client waited until 5:30 p.m., at which point office staff asked them to leave since the office was closing.

26. Respondent’s paralegal told them to wait in the lobby. Mr. Urban and his clients waited until 7:00 p.m., at which point the sellers decided to leave.

27. Respondent never made it to the agreed-upon appointment for the scheduled closing.

28. Shortly thereafter, Mr. Urban and the sellers were able to speak to respondent, who agreed to send the seller the documents to be signed and notarized. The seller printed and executed the documents.

29. As the closing agent, respondent was responsible for making sure all the funds were disbursed to finalize the transaction. Respondent was also responsible for sending Mr. Urban his commission as part of his duties as closing agent, as well as creating a closing statement, which turned out to be rife with errors.

30. Respondent completed the closing on October 18, 2018.

31. On October 22, 2018, respondent sent what appeared to be Mr.

Urban’s commission to him only to stop payment on the check minutes after Mr. Urban’s office received it.

32. Shortly after the closing, it was discovered that the closing statement had errors. Respondent overpaid the seller by approximately
$6,586.00, the approximate amount due Sandor Urban. Respondent produced the final corrected closing statement in May 2020, approximately 18 months later.

33. Between April 14, 2020, and August17, 2020, Mr. Urban sent no fewer than 14 requests for an update on the status of his payment for commission. Several of these emails also requested updates about the status of respondent’s corrections to the seller’s closing statement.

34. Respondent sporadically replied to Mr. Urban’s desperate requests eight times. Notably, respondent rarely gave updates other than to excuse himself by saying he was in the process of completing some task.

35. Respondent used the back and forth of the emails between himself and Mr. Urban to delay and string Mr. Urban along while he waited for payment for work, which had been completed, he was entitled to, and that respondent was obligated to provide.

36. Respondent never provided the payment to Mr. Urban.

37. Instead, Mr. Urban, through his office, requested his commission directly from the seller when Mr. Urban failed to keep his promises.

38. Ultimately, Mr. Urban received his commission from the seller after he sent his own demand letter.

39. Additionally, respondent failed to maintain technical trust accounting records. The bar served a subpoena upon respondent requesting the following documents covering the period of time between January 1, 2018, to February 29, 2020: copies of bank statements for two Bank of America bank accounts; copies of trust accounting records required by Rule 5-1.2 of the Rules Regulating The Florida Bar; copies of HUD-1 statements and balance sheets for all real estate transactions; and a complete copy of respondent’s closing file for the purchase/sale of the property that is the subject of this complaint.

40. Respondent’s response to the bar’s subpoena was deficient. He did not provide trust account bank statements and cancelled checks for January 1, 2018 through February 29, 2020; any client ledger cards, any cash receipts and disbursement journals; any trust account bank reconciliations; and any reconciliations of the trust account bank balances to the individual client ledger card balances.

41. Respondent is required on a monthly basis to maintain the records outlined in paragraph 36 of this complaint, and he failed to do so.

42. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 4-4.4(a) (In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third or knowingly use methods of obtaining evidence that violate the legal rights of such a person); and 5-1.2 (Failure to maintain technical trust accounting records).



43. Dmitri Mikhailov and Maritza Lagos retained respondent in or about August 2018 to remove a lien over a Sunny Isles Beach, Florida, property for which they were being charged a daily $500.00 fine.

44. Respondent charged a $5,000.00 fee but failed to perform the agreed-upon services.

45. Ultimately, Mr. Mikhailov ended up owing the City of Sunny Isles Beach $700,000.00 in daily fines because of respondent’s failure to pursue the matter at all, let alone in a timely matter.

46. Between October 15, 2018, and July 1, 2019, Mr. Mikhailov initiated correspondence requesting status updates with respondent no fewer than 15 times only to encounter silence on respondent’s end.

47. The 15th email from Mr. Mikhailov on July 1, 2019, stated that he would initiate a complaint with The Florida Bar due to respondent’s failure to communicate with him throughout the case.

48. The next day, on July 2, 2019, respondent replied to Mr. Mikhailov. In that email, respondent apologized to Mr. Mikhailov.

49. Incredibly, after apologizing, respondent inappropriately thanks his client “for your email versus responding in a different manner, such as waiting in the shadows near my house or office with a baseball bat and then using it.”

50. After the July 2, 2019, correspondence, respondent was asked to draft and mail a proposal to Mr. Mikhailov indicating how he plans to resolve the matter he was retained for. Additionally, Mr. Mikhailov requested that respondent forward all communications between Sunny Isles Beach and respondent.

51. Respondent was given a deadline of July 8, 2019, to provide this information. He never responded to Mr. Mikhailov’s request.

52. Shortly thereafter, Mr. Mikhailov requested updates on his case no fewer than seven more times between July 11, 2019, and September 23, 2019, with no response from respondent, save for one letter respondent sent to Mr. Mikhailov on or around August 9, 2019, related to a conversation between respondent and another party in the matter.

53. After August 2019, respondent did not speak to Mr. Mikhailov again.

54. In a January 15, 2020, letter to the bar, respondent stated that he “[agreed] with Mr. Mikhailov that he should receive a refund of the money tendered to me.”

55. Respondent in that letter to the bar also stated he suffered from “multiple medical conditions that rendered me unable to fully complete services and to stay in close communication with Mr. Mikhailov.”

56. However, respondent neither communicated any limitation to rendering services to his client nor withdrew from the representation.

57. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 4-1.3 (Diligence); 4-1.4 (Communication); 4-1.5 (Fees and Costs for Legal Services); and 4-1.16(a) (When Lawyer Must Decline or Terminate Representation).



58. Roy Collins retained respondent in or about June 2019 to represent him in a foreclosure defense case and to provide him with potential bankruptcy assistance.

59. Mr. Collins paid respondent a $5,000.00 retainer fee on June 18, 2019. Mr. Collins did not hear from respondent again until late August 2019.

60. Between August 10, 2019, and August 17, 2019, Mr. Collins attempted communication with respondent by calling his office and mobile phone, sending emails and text messages, and leaving several messages every day during that time period.

61. On August 16, 2019, Mr. Collins emailed respondent and terminated their relationship. He requested a refund in that email.

62. On August 21, 2019, respondent sent Mr. Collins a text message apologizing to him for being “out of pocket,” explaining that he had been “recovering from an injury.” He asked if he could call Mr. Collins around 8:00 p.m. that evening.

63. However, respondent did not call. Instead, respondent sent a text message to Mr. Collins at 10:39 p.m. with a promise to call the next day.

64. That was the last time Mr. Collins ever heard from respondent.

65. In a letter to the bar, dated February 27, 2020, respondent admits he did not communicate with Mr. Collins as he should have.

66. In that letter, respondent also admitted he was not healthy enough to represent Mr. Collins, stating that he “probably should not have accepted Mr. Collis [sic] case at that time [sic] I see that I was overly optimistic that I would soon make a full recovery.”

67. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 4-1.4 (Communication); 4-1.5 (Fees and Costs for Legal Services); and 4-1.16(a) (When Lawyer Must Decline or Terminate Representation).

WHEREFORE, The Florida Bar prays respondent will be appropriately disciplined in accordance with the provisions of the Rules Regulating The Florida Bar as amended.

Rita Elizabeth Florez,

Bar Counsel The Florida Bar
Miami Branch Office 444 Brickell Avenue
Rivergate Plaza, Suite M-100 Miami, Florida 33131-2404
(305) 377-4445
Florida Bar No. 1011307

Patricia Ann Toro Savitz, Staff Counsel The Florida Bar
651 E. Jefferson Street Tallahassee, Florida 32399-2300
(850) 561-5839
Florida Bar No. 559547


I certify that this document has been efiled with The Honorable John A. Tomasino, Clerk of the Supreme Court of Florida, with a copy provided via email to Kenneth Edward Walton II, at; and that a copy has been furnished by United States Mail via certified mail No. 7017 1450 0000 7821 0285, return receipt requested to Kenneth Edward Walton II, whose record bar address is Bank of America Financial Center, 701 Brickell Avenue, Suite 1550, Miami, FL 33131-2824 and via email to Rita Elizabeth Florez, Bar Counsel,, on this 16th day of February, 2021.

Patricia Ann Toro Savitz Staff Counsel


PLEASE TAKE NOTICE that the trial counsel in this matter is Rita Elizabeth Florez, Bar Counsel, whose address, telephone number and primary email address are The Florida Bar, Miami Branch Office, 444 Brickell Avenue Rivergate Plaza, Suite M-100Miami, Florida 33131-2404,
(305) 377-4445 and Respondent need not address pleadings, correspondence, etc. in this matter to anyone other than trial counsel and to Staff Counsel, The Florida Bar, 651 E Jefferson Street, Tallahassee, Florida 32399-2300,

Jan 4, 2022

SYSTEM ENTRY – Docket Entry 1 restricted/sealed until further notice. (tah)

SYSTEM ENTRY – Docket Entry 2 restricted/sealed until further notice. (tah)

Order (none of these entries or the order are available on PACER).


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U.S. District Court
Southern District of Florida (Miami)
CIVIL DOCKET FOR CASE #: 1:22-mc-20028


Assigned to: Attorney Discipline
Cause: Attorney Discipline
Date Filed: 01/04/2022
Jury Demand: None
Nature of Suit: 890 Other Statutory Actions
Jurisdiction: Federal Question
In Re

U.S. District Court
Southern District of Florida (Miami)
CIVIL DOCKET FOR CASE #: 1:22-mc-20028

Create an Alert for This Case on RECAP

Assigned to: AttorneyDiscipline
Cause: Attorney Discipline
Date Filed: 01/04/2022
Jury Demand: None
Nature of Suit: 890 Other Statutory Actions
Jurisdiction: Federal Question
In Re


Date Filed # Docket Text
01/19/2022 4 Administrative Order 2022-10 In re Order of Suspension of Attorney Kenneth Edward Walton, II, Florida Bar #183997. Signed by Chief United States District Judge Cecilia M. Altonaga on 1/19/2022. See attached document for full details. (cw) (Entered: 01/19/2022)
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Federal Judges

You’re Too Early to Dismiss the Judicial Complaint Sayeth the All-Gal Panel at Eleventh Circuit

The magistrate judge sua sponte dismissed Makere’s complaint because, as an administrative law judge, Judge Early is entitled to absolute judicial immunity.



Judicial Immunity Delayed Due to Hasty Dismissal

DEC 30, 2021 | REPUBLISHED BY LIT: DEC 31, 2021

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges. PER CURIAM:

Elias Makere appeals from the district court’s dismissal of his pro se amended complaint alleging violations of his civil rights un- der 42 U.S.C. § 1983, on the ground that the defendant was entitled to absolute judicial immunity.

Makere argues that the district court erred when it sua sponte dismissed his complaint against Judge E. Gary Early—who had ruled previously against Makere in an employment discrimination case—because Makere paid the filing fee for his complaint, Judge Early had not been served process, and the district court lacked the authority to assert absolute judicial immunity on behalf of Judge Early.

After de novo review,1 we agree with Makere that the district court erred by sua sponte dismissing his complaint at this stage.2

1 The record is unclear as to what rule or statute the district court was relying upon when it sua sponte dismissed Makere’s complaint—it appears that the district court may have been proceeding under 28 U.S.C. § 1915(e)(2) or possibly Federal Rule of Civil Procedure 12(b)(6). S

ua sponte dismissals under § 1915(e)(2) or Rule 12(b)(6) are reviewed de novo.

Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003) (explaining that we review a district court’s sua sponte dismissal under § 1915(e)(2) de novo);

Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008) (explaining that we review de novo a Rule 12(b)(6) dismissal.

2 Because we vacate and remand this case due to the district court’s procedural error, we deny as moot Makere’s accompanying motion to take judicial notice of twelve public records relating to the merits of his case.

In February 2021, Makere filed a complaint in the U.S. District Court for the Northern District of Florida against Judge Early, along with an application to proceed in forma pauperis (“IFP”).

Consequently, the case was referred to a magistrate judge for further processing.3

The magistrate judge then issued an order explaining that Makere’s complaint and IFP motion could not be considered because they failed to comply with the local rules — both documents lacked the required handwritten signature and the IFP motion was not submitted on the correct form.

The magistrate judge directed the clerk’s office to send Makere the correct IFP form and ordered that Makere file an amended complaint and amended IFP motion that complied with the referenced local rules by a certain date.

The magistrate judge cautioned that “[f]ailure to comply with this

[c]ourt [o]rder may result in a recommendation of dismissal of this action.”

3 Although the record does not reflect the basis for referring the case to the magistrate judge, we presume that the district court was operating under its Local Rule 5.3, which provides that where a party files a civil action and moves to proceed IFP, “the Clerk must open the case and refer any motion for leave to proceed in forma pauperis to an assigned judge.”

N.D. Fla. Local Rule 5.3.

Furthermore, under the Local Rules, a party seeking to proceed IFP is prohibited from serving process on the defendants until the district court “enters an order authorizing” service. Id. Rule 4.1(A).

Thus, Judge Early was not served at this time.

When Makere failed to file the amended pleadings by the specified date, the magistrate judge issued a report and recommendation (“R&R”), recommending that the district court dismiss the case for Makere’s failure to comply with its prior order.

Approximately twelve days later, Makere filed an amended complaint, objected to the magistrate judge’s R&R, and, on the following day, paid the filing fee in full.

On April 9, 2021, the magis- trate judge, recognizing that Makere had filed an amended com- plaint and paid the filing fee, treated Makere’s objections to the R&R as a motion for reconsideration, which it granted, and vacated the R&R.

Later that same day, however, the magistrate judge issued a second R&R recommending that the district court sua sponte dis- miss Makere’s complaint because, as an administrative law judge, Judge Early is entitled to absolute judicial immunity.

While the magistrate judge did not reference 28 U.S.C. § 1915, presumably — as there is nothing in the record that indicates that the defendant was ever served or filed his own motion to dismiss—the magistrate judge was screening the case pursuant to § 1915, which governs in forma pauperis proceedings.4

4 Section 1915 provides that in IFP proceedings, the court:

shall dismiss the case . . . if the court determines that . . . (B) the action or appeal—(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915 (e)(2).

Although the magistrate judge did not specify the § 1915 provision under which he proceeded, his repeated references to judicial immunity suggest § 1915(e)(2)(B)(iii).

Makere objected to the second R&R, arguing that he filed an amended complaint and paid the filing fee, and that the magistrate judge failed to cite a rule or statute that authorized the sua sponte dismissal of his civil action under these circumstances.

The district court adopted the second R&R it in a one-page order over Makere’s objections and dismissed the case.

The district court erred when it dismissed this case. After paying the filing fee, Makere was not subject to 28 U.S.C. § 1915,5 and the district court could not sua sponte dismiss his case under the screening provisions of § 1915.

See 28 U.S.C. § 1915(e)(2)(B)(ii)- (iii).

Furthermore, to the extent the district court dismissed the complaint sua sponte under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim—because again it is not clear what rule or statute the district court was proceeding under—we have prohibited such dismissals where, as here, the defendant has not filed an answer (indeed, here, the defendant was never served), “and the district court failed to provide the plaintiff with notice of its intent to dismiss or an opportunity to respond.”

See American United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007); Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 527 (11th Cir. 1983).

In short, the district court erred in sua sponte dismissing the case at this preliminary stage of the proceedings.6

Accordingly, we vacate and remand the case.



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