A Florida attorney was suspended when a court ruled he misrepresented himself to a Shelby County woman, who was convicted of murder, without actually being licensed to practice in Alabama.
The Florida Supreme Court last month ordered attorney David Jay Bernstein, 59, be suspended from practicing law for one year. The ruling from that state’s highest court came after a judge recommended his suspension after reviewing the complaints against Bernstein.
That judge's recommendation report, called a Report of Referee in Florida, was issued in April. According to court records, there were hearings held in February and in March on two Florida Bar complaints saying Bernstein violated multiple rules of conduct. One complaint dealt with a federal case in Virginia, while another concerned an Alabama inmate who was seeking help with her appeal.
Angela Yvonne Allen was convicted of murder in Shelby County in 2011 for the stabbing death of 28-year-old Bobby Lee Bray and was sentenced to 85 years in prison. According to the referee report, Allen’s daughter hired Bernstein in 2013 to represent Allen in her appeal. Bernstein was not licensed to practice law in Alabama, the report states.
The report says Bernstein sent a letter to Allen in March 2013 where he told the woman he would handle her case in federal court for $4,500 and sent payment instructions. When Bernstein testified at his hearings earlier this year on the complaint, the report says Bernstein testified he learned Allen had not yet exhausted her state claims and couldn't yet file in federal court, so he filed a petition in the state court in Shelby County. He also said he was paid $4,000 for the case.
Bernstein admitted the first petition he filed was incomplete, according to the referee’s report of his testimony, and said he filed a second petition in 2013 with the proper signatures.
Allen's appeal was denied by a Shelby County judge in February 2014 because, the judge wrote, the proper filing submitted after the first petition was filed outside the time limit permitted by law.
According to the referee report, Bernstein did not communicate the appeal's dismissal to Allen or to her daughter. Months after the appeal was denied, Allen wrote a letter to Bernstein asking for an update on her case, and said she was very confused about what was going on and mentioned she had never personally spoken with Bernstein, only his paralegal.
In May 2014, Bernstein wrote Allen back, which the referee report called a "dishonest response" where Bernstein "continued to hold himself out as her lawyer and provide her with purported legal assistance." He instructed Allen how to sign and file a motion, never disclosing that the court had already dismissed her appeal months before. Bernstein's dishonesty "was knowing, deliberate, and therefore intentional," the referee report says.
In May 2014, Allen wrote to Bernstein's paralegal that she received a letter about her case being dismissed and asked what the next step should be. According to the referee report, Bernstein did not communicate with Allen again.
In his testimony, the report says Bernstein did not remember telling either Allen or her daughter he wasn't allowed to practice law in Alabama.
When Allen's daughter found an Alabama attorney to help with her mother's case, that attorney realized Bernstein's filing was a "cut and paste of a form available in the Alabama forms directory." He filed an Unauthorized Practice of Law complaint on Bernstein to the Alabama State Bar.
In response to that complaint, according to the referee report, Bernstein told the Alabama State Bar he "did not take the time to examine the Alabama code or bar rules relating to the unauthorized practice of law. I only wanted to get something before the court for [Allen], in hopes that the template motion would at least be sufficient to save the limitations period and preserve her right to collateral review."
He continued, "I realize that this was a rash decision on my part, and that the more appropriate course of action would have been to terminate the contract with [Allen's daughter] …"
While the second, Alabama attorney tried to refile an appeal for Allen, her case was ultimately dismissed. She "had but one opportunity," the referee report says, "and that opportunity was wrongfully taken from her by [Bernstein]…"
The report says Bernstein refunded all but $500 to Allen’s family. As part of the Florida Supreme Court’s order, Bernstein must refund that money.
Angela's latest attorney Richard Jensen said he believes Allen would have had a successful appeal if filed properly.
"Having finished the appellate process, (Allen) had one avenue to set aside her conviction, which was to allege ineffective assistance of her trial counsel via what we lawyers in Alabama call a 'Rule 32' petition. Rule 32 of the Alabama rules allow for a convicted person to challenge her conviction on the grounds her attorney failed to properly and effectively represent her," Jensen said.
"Had a properly filed Rule 32 petition been filed on Ms. Allen's behalf, I believe she would have been successful and she would have been given a new trial. Sadly… David Bernstein advertised himself as a 'national' lawyer and misled Ms. Allen's family into hiring him to handle her Rule 32, despite the fact he was not an Alabama lawyer."
Jensen said Bernstein "basically defrauded" Allen "and ruined her chances to win a new trial."
"Mr. Bernstein was suspended from the practice of law as a result of this investigation and, in fact, several others of a similar nature. Apparently, he just has a problem with following the rules we live by as lawyers. While Ms. Allen won't be able to win a new trial, she told me feels a sense of justice that Mr. Bernstein was suspended and hopes no one else will be harmed in this way again."
Jensen added that he hopes Bernstein has "learned his lesson" is he's able to reactivate his law license and that Bernstein will stay out of Alabama.
“I am deeply grateful to both the Alabama and Florida state bars for acting so swiftly to protect the public interest and bringing about a resolution to this case. Lawyers are supposed to render service to people in need, not bilk them out of thousands of dollars when they are most vulnerable.”
Updated Aug. 26 with comments from Richard Jensen.