A St. Johns County judge recommended Friday that former Public Defender Matt Shirk have his license to practice law suspended for one year.
Voters kicked Shirk out of office in 2017 after years of scandals left him facing two criminal investigations, a grand jury, the state ethics commission, the state auditor general and a Florida Bar complaint.
Both criminal investigations ended with prosecutors not filing charges against Shirk.
The grand jury urged then-Gov. Rick Scott to remove Shirk from office. Scott declined.
The ethics commission and Gov. Ron DeSantis later ordered Shirk to pay a $6,000 fine. Shirk is more than a year past his deadline to pay that fee, though he falsely told the judge Friday that the order had not actually been issued.
A state auditor report found new ways that Shirk had repeatedly violated state laws and procedures and used his staff attorneys to volunteer at his own nonprofit.
The Florida Bar’s investigation has been ongoing since January 2017. This week, Shirk faced a one-day trial, which found he had violated six of the Florida Bar’s rules for lawyers. On Friday, Judge Kenneth J. Janesk II sentenced Shirk to having his license suspended for one year.
Janesk must still issue his formal report and recommendation, which could be appealed, and the Florida Supreme Court must accept the discipline.
Shirk and his lawyer, former Lt. Gov. Jeff Kottkamp, did not return a request for comment. The Bar said it will review the formal ruling to determine whether or not to appeal.
When the Florida Bar reached a settlement for a six-month suspension last year, the Supreme Court rejected it.
Shirk’s eight years in office were marked by frequent and repeated scandals.
He ran for the office in 2008, even though no one had ever challenged Jacksonville’s public defenders before that. At the time, he’d never defended a homicide case and only had a few years of legal experience, but he found success running a red-meat campaign designed for conservative voters, tying his opponent to then-U.S. Sen. Barack Obama.
Shirk promised he would never question police officers’ integrity — even though most attorneys representing criminal defendants are required to do so. He also promised to investigate whether the office’s clients were actually poor. He vowed to make clients pay the office back.
Once in office, he fired the most experienced attorneys, misspelling some of their names in his termination email.
In 2011, the office was given perhaps its most high-profile case under Shirk. Cristian Fernandez, a 12-year-old facing life if convicted of murdering his 2-year-old brother, was being held in solitary confinement. Shirk took the case himself.
The idea of charging a 12-year-old as an adult in a first-degree murder case sparked international outrage, and a team of the city’s top attorneys volunteered to help.
Eventually, the other attorneys took over the case, and a judge issued a gag order to stop Shirk from talking about it to the media — something he’d been doing frequently.
After the attorneys reached a plea deal, Shirk shared with a French documentary crew details that Fernandez had told him, a violation of attorney-client privilege.
Shirk has defended the decision to do so with sometimes contradictory rationales. On Friday, he said that because it was a French documentary crew, he didn’t expect anyone in the U.S. to see it. But he also said Friday that he shared the details because he wanted “the world” to know about it.
He also has said that because Fernandez was tried as an adult, Fernandez could consent to let Shirk share the information, even though Shirk and the other lawyers were arguing that Fernandez should not be treated as an adult but as a child.
Then in 2013, his libido repeatedly got him into trouble. He hired three women based on their physical appearance.
One was the girlfriend of the head of the police union. Another was a bartender at a Hooters-style establishment. The third was a ring girl at a boxing match whose picture he found on Facebook; he then ordered his chief investigator to track her down and hire her.
At work, he repeatedly sent two of them sexual messages, sending one that said, “I think if we had sex there would be very minimal awkwardness afterwards.” He took another on out-of-town work trips and frequent lunch and coffee dates.
He also used public funds to install a shower in his private office without approval, and then he invited the women to shower with him.
He also illegally drank with two of the women in his office. After his wife found the messages, he fired the women.
After losing his re-election bid in 2016, he used $90,000 in public funds to hire a lobbying firm that had donated money to his campaign. He fired four employees believed to prefer his opponent, and he gave substantial raises to political allies, in some cases doubling their salaries. He gave away nine of the office’s guns to a motorcycle club. He spent thousands of taxpayer dollars traveling to law conferences, including an immigration-law clinic even though public defenders don’t handle immigration law. (After leaving office, he began practicing immigration law.)
Meanwhile, he removed hard drives from computers and donated the computers in what his successor, Public Defender Charlie Cofer, called a “concerted effort by the prior administration to delete emails and other documents in violation of public records laws.”
The state also paid for Shirk’s personal fuel usage, and he had the state cover the costs when he crashed into a BMW in a parking lot.
While Shirk has mostly admitted to the findings made against him, this week he made a new defense. He claimed he’d had another conversation with Fernandez around the time of the plea deal and that Fernandez had given him permission to talk to the French media.
Shirk also said he believed Fernandez was innocent of killing his brother, despite Fernandez’s guilty plea.
Janesk was skeptical.
“Now you have not just the best of the best in the public sector but the best of the best in the private sector who’ve all agreed to do this pro bono,” he said of the legal team representing Fernandez, “you want me to believe he said he didn’t do it and all these people let him take a … plea?”
Shirk also pointed to the delays in the Florida Bar trial as a mitigating factor.
“I wanted this matter to be over in 2017, but the Bar wanted to wait until the ethics commission completed its case, so it’s dragged on for five years now. … It’s impacted our family. It’s an emotional thing. I’m ready to put this behind me and my family and move on and have a life.”
Throughout Friday’s hearing, both Shirk and the Florida Bar’s lawyer said that Gov. DeSantis had not yet signed an ethics commission order filed against him. As The Tributary has previously reported, DeSantis did sign such an order in January of last year, ordering Shirk to pay $6,000.
The Florida Commission on Ethics confirmed Friday that Shirk has still not paid the fine, which was due in February of 2022.
The judge never heard that Shirk was delinquent in paying the fee. Instead, the judge, the Florida Bar’s lawyer, Carrie Lee, and Shirk all spoke at length about how they didn’t know when the governor would sign the order.
Kottkamp, who represented Shirk in the hearing, also argued that the city lacked any authority to ban alcohol from the city-owned building where Shirk drank with his employees.
“I don’t think if it was challenged in court the city has the authority to pass an ordinance regulating the operations of a constitutional officer,” he said.
Kottkamp also said that when a judge dismissed a lawsuit brought by one of the women in Shirk’s office, the judge “found there was no hostile work environment.”
In fact, the judge did not find that. The judge specifically said he wasn’t weighing on whether there was a hostile work environment but only that the allegations did not violate the Civil Rights Act or the U.S. Constitution.
Shirk persuaded the judge to consider the fact that he’d never had a bar complaint prior to this one, which was filed in January of 2017.
But no one pointed out that was because Shirk was immune from Bar complaints while the elected public defender, and he had only practiced law for eight years before that.
While the elected public defender, the Florida Bar couldn’t investigate complaints against Shirk. Unlike judges, who can face disciplinary hearings, there’s no way to hold state attorneys or public defenders accountable for violating Bar rules.
In 2004, the Florida Bar Board of Governors talked about creating a process for investigating public defenders and state attorneys, but ultimately the board declined to do so. Some, like Florida Bar counsel Barry Richard, have said the state should set up something similar to the Judicial Qualifications Committee that investigates judges.
He previously told The Florida Times-Union that it “might make sense for the Constitution to make another body similar to the JQC or expand the authority of the JQC to include state attorneys or public defenders.”
The only charge the Florida Bar brought against Shirk that Janesk didn’t agree with was incompetence.
“Candidly Mr. Shirk is a talented attorney,” Janesk said. “The issue is what he did.”
Shirk, Janesk said, did not deserve to be permanently disbarred. If the Florida Supreme Court accepts the punishment, then Shirk can petition Janesk to restore his license in a year.