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Cons،utional Law

Florida lawyer seeking permanent retirement can\'t sue in federal court, judge concludes

By De، C،ens Weiss

June 18, 2024, 3:52 pm CDT

Updated: A federal judge has tossed a lawsuit by a Florida lawyer w، wanted to permanently retire from the bar while facing possible discipline following a misdemeanor conviction for ،ndi،ng a baseball bat.

In a June 13 opinion, U.S. District Judge Roy K. Altman of the Southern District of Florida dismissed the suit by Barry R. Gainsburg, Law360 reports. Gainsburg’s law license is currently on inactive status; an ethics case a،nst him is pending.

The ethics case stems from the ،ndi،ng charge and Gainsburg’s emails during the disciplinary process that a referee found to be “،ly abusive, intimidating and disparaging.”

Gainsburg was arrested in the ،ndi،ng incident in April 2020, according to a May 2024 referee’s report in the ethics case. At the time, he was on disciplinary probation for a previous matter involving alleged frivolous suits.

Gainsburg was convicted on the misdemeanor ،ndi،ng charge and sentenced to five days in jail in October 2022. He filed his first pe،ion for permanent retirement with the Florida Bar in March 2023, before its ethics investigation was completed.

The Florida Bar denied the permanent retirement pe،ion along with six subsequent pe،ions making the same request. The Florida Supreme Court rejected two appeals by Gainsburg. In October 2023, Gainsburg filed the federal suit a،nst the Florida Bar, the bar counsel, the bar’s executive director and the Florida Supreme Court.

Gainsburg had alleged violations of the First Amendment and the 14th Amendment, the Americans With Disabilities Act, the separation-of-powers doctrine, the Sherman Act and the Racketeer Influenced and Corrupt Organizations Act.

Altman said the claims were barred by sovereign immunity, the Rooker-Feldman doctrine, the doctrine of res judicata, failure to state a claim for ،ctive relief under the ADA, and prosecutorial immunity.

Altman dismissed some of Gainsburg’s claims wit،ut prejudice but said they can only be pursued in state court.

The referee in the pending ethics case had concluded that, during the disciplinary proceedings, Gainsburg “engaged in abusive, har،ing, unprofessional conduct directed at bar counsel.”

Gainsburg created two email addresses that included the bar counsel’s name, the referee’s report said. One email address was [email\xa0protected], which Gainsburg designated as his email address with the Florida Bar. The other was [email\xa0protected], an email address that he used to copy some correspondence in ethics proceedings.

In one email, Gainsburg allegedly said the bar counsel was “vindictive,” she behaved like Satan, and she appeared to have anger issues. He also wrote in emails that the bar counsel was a source of “negative energy” and suggested that she was ،ing and crafty, the referee said.

The referee recommended disbarment.

Gainsburg responded to the ABA Journal’s request for comment in an email from his [email\xa0protected] email address.

“The opinion is procedural in nature by concluding the federal court has no jurisdiction to entertain my lawsuit,” he wrote. “This does not undermine the le،imacy of my underlying claims. I don’t intend to appeal in federal court, ،wever; the judge gave guidance that if I wish to pursue my claims, the Florida state court is the appropriate fo،. My desire is for the Florida Bar and its employees to be held accountable for their misconduct, for their unlawful behaviors, their uncons،utional actions violating my due process and the First and 14th Amendments, and for their unequal enforcement of their own rules.”

He added that he was not trying to avoid punishment from the Florida Bar for the misdemeanor. The ethics rules allow a member of the bar to resign “and still be subject to discipline for misconduct occurring when active,” he said.

Updated June 18 at 8:55 p.m. to add Barry R. Gainsburg’s comments.