Defending Attorneys

Defending Attorneys

By David R. Corder

Associate Editor

Adversaries tend to view Scott Tozian from one of two perspectives. Either they respect his legal tenacity or outright disrespect his defense tactics. At least it's been that way ever since the Tampa attorney became a go-to advocate two decades ago for embattled lawyers and judges.

"Sometimes you're aggressive in this business and you step on toes," Tozian, 51, acknowledges. "At times, you're going to hurt people's feelings."

Tozian's reputation apparently appealed to Pinellas-Pasco Circuit Judge John Renke III. In 2003, he hired Tozian, who typically charges $325 an hour, to defend him in a state Judicial Qualifications Commission (JQC) investigation. The JCQ, an investigative arm of the Florida Supreme Court, accuses the judge of improper campaign conduct during his successful race in 2002 for circuit judge.

Tozian won't comment about Renke's defense, but the pleadings posted on the high court's Web site (www.floridasupremecourt.org) offer a glimpse into Tozian's style of advocacy.

Earlier this month, Tozian accused the JQC investigative hearing panel of improperly adding new charges, including an allegation that Renke received improper campaign loans from his father's law firm.

In reponse, Tozian criticized the agency for not giving his client an opportunity to dispute the charge prior to making it public.

It's this type of advocacy that apparently also appealed to other embattled judges such as Cynthia Holloway and Matt McMillan.

Holloway, a former Hillsborough County circuit judge, retained Tozian to defend her on allegations she gave false or misleading testimony about her role in a friend's custody battle. Holloway was a judge for 13 years prior to her October 2002 resignation.

She also relied on Tozian's knowledge of the lawyer-judge disciplinary processes to negotiate a settlement with the Florida Bar against the same JQC charges. In December, she received a public reprimand.

Not all of Tozian's clients fare as well. On the JQC's recommendation, the state Supreme Court ousted McMillan in October 2001 on charges of improper campaign conduct.

Despite the defeat, McMillan still retained Tozian to defend him against a Florida Bar disciplinary action over the same charges that cost the judge his job. The deal in 2002 included a three-year suspension of his law license.

"I sympathize with my clients," Tozian says. "Having the forces of the bar brought against you is not an enviable position. When the bar (or JQC) is interested in you it's not a good day."

Tozian generally earns positive remarks from his adversaries, including Tom McDonald Jr., the JQC's longtime general counsel.

"He's just always well prepared," McDonald says. "The thing that stand out to me most is he's tenacious. He raises appropriate objections in defense of client."

In particular, McDonald recalls Tozian's work on McMillan's behalf. "I remember his closing argument was very impressive, even though he lost the case," he says.

McDonald offers such comment even though Tozian also accused him of leaking information about the Holloway investigation to the public. Although he disputed the accusation, McDonald voluntarily withdrew as lead counsel against Holloway in an effort to refocus attention on the accusations against the judge.

Tozian even earns a word of begrudging respect from Susan Bloemendaal, the Florida Bar's chief disciplinary counsel in Tampa. Although she thought it improper to comment about his legal skills, Bloemendaal through a spokesperson called him a "worthy advocate."

Tampa attorney Marvin Barkin, the JQC special counsel in the Renke investigation, wouldn't talk about the panel's business. But he adds, "In terms of being a gentleman, I think (Tozian) is."

Those opinions aren't shared by everyone. Tampa attorney Brett Geer, a former Florida Bar prosecutor, claims Tozian uses heavy-handed tactics to intimidate his adversaries.

"He does make it a tactic and a habit out of accusing the accusers," Geer says. "That's no secret. He did that to me when I was a Florida Bar prosecutor. He did it to Tom MacDonald, general counsel for the JQC, during Judge Cynthia Holloway's removal. And he is doing it now in Judge John Renke's case."

Geer and Tozian frequently tangled until Geer claims Bloemendaal removed him from a disciplinary action at Tozian's insistence. Geer argues such acquiescence denigrates the Florida Bar's self-regulatory processes. Bloemendaal fired Geer in late 2001 when he threatened to sue Tozian and a client for defamation.

Two years later, Geer accused Tozian, Bloemendaal, the Florida Bar and other bar officials in federal court of violating his civil rights. A year later, however, the U.S. District Court, Tampa, awarded Tozian a summary judgment, dismissing him as a defendant. About six months later, the court granted a summary judgment in favor of the Florida Bar and the other defendants. Geer has since appealed the decision to the 11th Circuit U.S. Court of Appeals.

But the experience has not lessened Geer's criticism of Tozian. "The results he actually achieves for his clients tell the tale, in my view," he says. "He compensates for a lack of talent in the courtroom by infighting behind the scenes, personally accusing other lawyers of misconduct."

But the sheer volume of Tozian's work in the area of lawyer-judge disciplinary action contrasts with the claims Geer makes.

Since the mid-1980s, Tozian estimates he has worked from 3,000 to 5,000 disciplinary actions. Not all of them became public. For instance, only around 200 or so of that number resulted in Supreme Court action. He negotiated settlements for the vast majority of his clients, enabling them to avoid interruption of their law practices.

This is not the type of work Tozian anticipated when he completed his law degree in 1977 at the Florida State University College of Law. He completed the degree in 27 months, but the focus on studies left him with little opportunity to network for a job in his hometown of Tampa.

But Tozian's experience as a Florida Bar law clerk during law school earned him an opportunity in 1978 to work at the organization's Miami office. In the summer of 1980, Tozian's childhood friend, Tampa lawyer Don Smith, left as a staff attorney at the Florida Bar's office in Tampa. Tozian jumped at the opportunity to return home.

About nine months later, Tozian rejoined Smith as assistant Hillsborough state attorneys under the administration of E.J. Salcines, now a 2nd District Court of Appeal judge. Three years later, the two friends opened Smith & Tozian PA, with a $10,000 investment from Tozian's father, George.

Early on in the partnership, Tozian recalls, two old-time Tampa area lawyers needed help with separate disciplinary actions. They gambled on Smith and Tozian and won. He says word spread throughout the legal community about their abilities.

"We never envisioned we would be lawyers for lawyers," Tozian says.

Over the years, Tozian has worked on a number of high-profile cases. On a subcontract with the Florida Bar, he opposed the late Tampa lawyer Frank Ragano in his bid to reinstate his law license. Ragano, who had completed probation on a federal tax evasion charge, ultimately prevailed against Tozian. Then Ragano memorialized Tozian with a brief mention in his book, "Mob Lawyer."

Last year, Tozian successfully defended South Florida lawyer Willie Gary and his partner, Madison McClellan, against a Florida Bar complaint. Gary, a media-savvy lawyer who owns his own jet, and McClellan won a $50 million jury verdict in 2001 for the Roger Maris family against Anheuser-Busch Cos. Inc. over a franchise dispute. Then the defendants, the brewery and its lawyers, accused Gary and McClellan of misconduct for utterances they made during the trial.

"Anheuser-Busch was pushing that so hard," Tozian recalls. "It was difficult because the bar was aggressively prosecuting Mr. Gary. It was one of those we just couldn't work out."

The representation of Gary and McClellan marked a new milestone in Tozian's career. He won the case at the Supreme Court level. Only occasionally, he says, does any of the handful of attorneys in the state who represent lawyers or judges in disciplinary actions win outright against the Florida Bar or the JQC.

"When you fight city hall, you don't win very often," he says. "When you get to the Supreme Court level, outright wins are unusual."