Ethics
‘Whole lot of oddities’ excuse wrongdoing of lawyer with likely COVID-19 delirium, ethics referee says
Ethics charges should be dropped against a lawyer who told a judge that, “I think I’ve got some COVID brain” after he talked to a sequestered witness during a trial break and then made a false statement about it, according to an ethics referee with the Florida Bar. (Image from Shutterstock)
Ethics charges should be dropped against a lawyer who told a judge that, “I think I’ve got some COVID brain” after he talked to a sequestered witness during a trial break and then made a false statement about it, according to an ethics referee with the Florida Bar.
Evidence suggests that the lawyer, Clayton Bowers Studstill of Port St. Joe, Florida, was telling the truth about his medical condition, according to the May 21 report by the referee, James A. Yancey. Studstill was excused from trial after the incident and went to the emergency room. He was admitted to the hospital for an active COVID-19 infection and possible brain fog.
Medical records indicated that Studstill appeared to be suffering from an “acute confusional state and executive function disturbance” that was most likely delirium related to COVID-19. A neurologist expert witness agreed that Studstill was most likely suffering from delirium at the time, a condition in which a person may appear normal one moment and lose executive function the next moment.
There is no question that Studstill’s behavior, standing alone, violated the judge’s order of sequestration and the ethical duty of candor to the court, Yancey said. But there are “a whole lot of oddities” that make a difference, the referee said.
Law.com covered Yancey’s recommendation.
Yancey recounted the events before Studstill’s alleged ethical wrongdoing. Studstill tested positive for COVID-19 at a medical facility Saturday, June 4, 2022. The next day, his co-counsel filed a motion for a continuance. Their trial was scheduled to begin the next day after that—June 6, 2022.
The morning of June 6, 2022, “is when things start breaking down in my opinion,” Yancey wrote. Judge Michael Kraynick “listens to the motion for continuance and decides he wants to see Mr. Studstill in bed. I don’t think I’ve heard of that one before.”
Studstill’s wife woke him and brought him his laptop for the virtual hearing. Witnesses differ over whether Studstill was shirtless, clad in “skivvies” or wearing a T-shirt—possibly one for Florida State University.
Kraynick allowed a two-day reprieve, scheduling the trial to start June 8, 2022. He also said Studstill and his co-counsel could appear online or in person. Studstill did appear virtually, and he seemed to be somewhat better. That night, however, he tested positive for COVID-19 again. The next day, he showed up in person for court.
Studstill should have stayed home and should have argued to the court that he couldn’t function effectively online, Yancey said. But Studstill testified that he was quite intimidated by the trial judge.
“I don’t know whether that’s objectively the case or it’s just in his mind at the time being,” Yancey said.
At some point June 9, 2022, Studstill “winds up deteriorated,” Yancey said. “Apparently at some point during the morning, he’s on a number of medications, some of them prescriptions, some of them over the counter, whatever mixture they are, and there’s all kinds of medical records in evidence. We then get to the situation which led to this case.”
The judge paused testimony by an expert witness, so that emails that she was testifying about could first be authenticated. The expert was sent outside the courtroom under a sequestration order. While another witness was being questioned about the emails to lay the foundation, Studstill left the courtroom and had a conversation with the expert in violation of the sequestration order.
“That makes no sense to me at all for a person in their right mind,” Yancey said. “Especially a lawyer. Why am I, as a lawyer, going to walk outside the courtroom and start talking to a witness out there? Number one, it’s a violation of the judge’s order, but that’s beside the point. And start talking to them about what is or isn’t coming into evidence when the judge hasn’t even made a ruling? That doesn’t make any sense whatsoever. It is absolutely nonsensical.”
Studstill compounded the problem when the judge questioned him about his contact with the expert witness. Studstill replied that he told her to go home. Yancey questioned why Studstill would say that to the witness.
“She’s not been excused, but that’s beside the point. By the witness going home, it would torpedo his own case,” Yancey said.
When questioned further, Studstill told the judge that he had not released the witness, and his goal was to make sure that she remained for trial.
“I loathe generally to excuse anybody lying to the court,” Yancey wrote. “But in this case, given the circumstances, given the issue, and given where we are, I can’t find on the record and feel comfortable that Mr. Studstill knowingly made these statements. The statements he made that were both inappropriate and untruthful make no sense for him to have made in his normal right mind.”
Studstill, who was admitted to the bar in 2005, had no prior disciplinary record.
“This case should never have happened,” Yancey wrote in the referee report. “I’ve been a judge close to 26 years and have been the chief judge for the 10th Judicial Circuit the last almost two years. I have never seen a situation like this one.”
Studstill’s lawyer, Richard Greenberg, told Law.com that he appreciated the referee’s well-reasoned report.
“It reflects a careful consideration of the facts and legal principles involved,” Greenberg told the publication. “No attorney should have been forced to conduct a trial while suffering from COVID-19.”
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