IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant, Case No. SC11-32

v.

TFB Case No. 2010-31,050(09D)

JOHN THOMAS STEMBERGER,

Respondent.

/

RESPONDENT’S AFFIRMATIVE DEFENSES

AND ANSWER TO AMENDED COMPLAINT

COMES NOW the Respondent, JOHN THOMAS STEMBERGER

(“Stemberger”), and responds to the Amended Complaint of The Florida Bar as

follows:

AFFIRMATIVE DEFENSES

First Affirmative Defense

With regard to the alleged violations of Rule 4-3.6(a) and 4-8.4(d), Respondent

Stemberger submits that his public statements are core speech and are given the

highest and most robust levels of protection by the First Amendment of the United

States Constitution and/or by the Constitution of the State of Florida. Respondent

Stemberger further submits that as applied in this case, these rules are

unconstitutional as a prior restraint on speech, in that these rules: a) permit broad

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discretion in their interpretation, yet lack objective guidelines to sufficiently warn the

speaker; b) are vague; c) are overbroad; d) are content and viewpoint-based; e) lack a

compelling or significant governmental interest; and f) are not narrowly tailored to

meet their goals.

Second Affirmative Defenses

Prosecution of this action violates Respondent’s substantive and procedural

due process and equal protection rights, protected by the 11th

and 14th

Amendments to

the U.S. Constitution. Respondent Stemberger was not afforded the opportunity to

appear live before the grievance committee to place his comments in question in

context. As a result, The Florida Bar followed the incorrect lead of Mr. Tarazi and

ascribed to Respondent Stemberger incorrect motives and intentions. The Florida

Bar’s prosecution of Respondent Stemberger violates equal protection to the extent

that Respondent Stemberger has been singled out for prosecution due to his religious

and/or political views and/or The Florida Bar’s apparent desire to protect the religious

and/or political views of Mr. Tarazi.

Third Affirmative Defense

To the extent that the Amended Complaint alleges that the Respondent

Stemberger violated some confidentiality afforded the minor child, the Respondent

submits the affidavit of Rifqa Bary (“Bary Affidavit”) attached (as an image) hereto

as Exhibit “A”. The Bary Affidavit constitutes a waiver, consent and ratification of

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Respondent Stemberger’s actions taken on her behalf and at her request. Respondent

Stemberger submits that no Rule 4-1.9(c) violation has occurred regarding divulging

confidence of a former client and makes no concession that he improperly revealed

confidential information.

Fourth Affirmative Defense

To the extent that the Amended Complaint alleges that Respondent Stemberger

violated any statute, court rule, or court order, Respondent Stemberger submits that

he was never sanctioned, admonished or even warned by the Florida court with

jurisdiction over the underlying matter. If Respondent Stemberger’s conduct was

improper, the appropriate forum for addressing such conduct would have been in the

underlying litigation. However, no judge has brought a complaint against

Respondent Stemberger. In fact no attorney that appeared in the Orlando case has

brought a complaint against Respondent Stemberger. And most importantly,

Respondent Stemberger’s own client, Rifqa Bary, has brought no complaint and has

nothing but praise for her lawyer’s conduct and for the eventual successful outcome

of her case. Therefore, Respondent Stemberger submits that a condition precedent to

prosecuting alleged improper disclosure of confidential information by a former

client has not occurred.

Fifth Affirmative Defense

Rule 4-8.4(d) requires that the conduct in question be in connection with the

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practice of law. Respondent affirmatively states that his comments to the media,

alleged to violate Rule 4-8.4(d), were not in connection with the practice of law

within the meaning of that rule. Respondent further affirmatively states that the case

law finding violations of Rule 4-8.4(d) involved conduct that was clearly in

connection with the practice of law.

ANSWER

Further and specifically regarding the allegations of the Amended Complaint,

Respondent Stemberger states as follows:

1. Respondent Stemberger admits that he is a member of The Florida

Bar as alleged in paragraph 1 of the Amended Complaint.

2. Respondent Stemberger admits that he resides and practices law in

Orange County, Florida as alleged in paragraph 2 of the Amended Complaint.

3. Respondent Stemberger admits, in part, paragraph 3 of the

Amended Complaint that he received a notice that on July 21, 2010 the Ninth

Judicial Circuit Grievance Committee “D” appears to have found probable

cause to file the original Complaint, but is without personal knowledge and

therefore, denies other allegations regarding the actions of the Chair of that

committee.

4. Respondent Stemberger admits, in part, paragraph 4 of the

Amended Complaint that he represented, then a minor child, Rifqa Bary in a

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high profile dependency case in the Ninth Judicial Circuit in and for Orange

County, Florida. Respondent Stemberger denies, in part, paragraph 4 of the

Amended Complaint alleging he ended his representation of Rifqa Bary when

the case was transferred to Ohio.

5. Admitted. Respondent Stemberger drafted, released to the media,

posted on his website, and then filed with the Clerk of the Court an

“Investigation and Intelligence Memorandum.” However, Respondent

Stemberger denies the allegation that the Memorandum approved for public

distribution by the Respondent and his client, Rifqa Bary was confidential.

6. Admitted in part. Respondent Stemberger affirmatively states this

appearance on Fox News should be characterized as “during the time he was

actively representing the child in the Florida dependency proceeding.” The

appearance on Fox News was not an aspect of the representation, and the news

appearance did not have any bearing on the outcome of the proceeding; the

information shared with the media had already been filed with the dependency

court, thus no comments were made which could influence the dependency

court beyond what had already been placed before it.

7. Admitted that Respondent Stemberger agreed to appear on Fox

News on December 23, 2009. Fox News controlled the focus and purpose of

the broadcast. Respondent was, in fact, still representing Ms. Bary in some

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capacities at that time, as he still does. Upon information and belief, FOX

News wanted to interview Respondent Stemberger because of his knowledge

gained while actively involved in the previous Orlando case, not because of

any role he still had at that time in the Ohio case. Clarification of his current

role was not necessary in the context of that interview and, Respondent

Stemberger respectfully suggests, that had he represented on-the-air that he no

longer was Rifqa’s attorney, this would have been a misstatement in light of his

professional relationship with Rifqa at that time.

8. Admitted. Respondent Stemberger stands by these statements as

truthful, made in good faith, and consistent with The Rules Regulating The

Florida Bar. Under the American Bar Association Model Rules of Professional

Conduct, the Ohio Rules of Professional Conduct, and The Rules Regulating

The Florida Bar, an attorney has an obligation to use his or her independent

professional judgment in representing a client, irrespective of the attorney’s

religious views, and even if being paid by a third party. Respondent

Stemberger denies that his statements implied or suggested that Omar Tarazi

was unqualified.

9. Respondent Stemberger denies that his statements implied or

suggested that Omar Tarazi was unqualified. Respondent denies that he stated

that Mr. Tarazi was being paid by organizations associated with terrorists; by

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The Florida Bar’s own allegations, Respondent Stemberger provided the

qualified statement “if” an attorney was being paid by a third party. Finally,

Respondent Stemberger states that Rule 4-1.8(f), Rules Regulating The Florida

Bar, expressly proscribes payment of an attorney by a third party unless certain

conditions are met.

10. Respondent Stemberger admits the allegations in paragraph 10 of

the Amended Complaint that he posted this video on his website located at

www.OrlandoLawyer.tv. This is not improper and it does not support the

allegation that he violated any of the cited rules.

11. Respondent Stemberger is without personal knowledge and

therefore, denies the allegations in paragraph 11 of the Amended Complaint

regarding whether or not Omar Tarazi was under a gag order in the Ohio

Dependency case and whether or not he was able to respond. Further, nothing

pled in Paragraph 11 relates factually to Rule 4-1.9(c) regarding divulging the

confidences of a former client, Rule 4-3.6(a) regarding media publicity, or to

Rule 4-8.4(d), regarding disparaging persons.

12. Respondent Stemberger admits the allegations in paragraph 12 of

the Amended Complaint that he posted an opinion editorial he wrote in The

Orlando Sentinel on his website located at www.OrlandoLawyer.tv and does

not concede that this is an admission of any wrongful conduct nor does it

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factually relate to any of the alleged rules violated. The original editorial

appeared in the Orlando Sentinel on Tuesday, November 10, 2009, as a My

Word column. That letter was signed by Respondent Stemberger as “John

Stemberger is an Orlando lawyer who represented Rifqa Bary in the Florida

dependency case.”

13. Respondent Stemberger admits, in part, the allegations in

paragraph 13 of the Amended Complaint that he drafted, released to the media,

posted on his website, and then filed with the Clerk of the Court an

“Investigation and Intelligence Memorandum.” However, Respondent

Stemberger denies the allegation that the Memorandum approved for public

distribution by the Respondent and his client, Rifqa Bary was confidential.

While the file in a Florida dependency case is confidential, the case is not. A

true and correct copy of the Memorandum will be filed and admitted into

evidence in this matter.

14. Finally, Respondent Stemberger denies that he violated any rules

and respectfully requests this Honorable Court dismiss this Amended

Complaint, or enter a judgment on the pleadings, as the Amended Complaint

completely fails to allege any facts in the four corners of this Amended

Complaint in which a violation of the rules stated could be found.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have served the original of the foregoing

Affirmative Defenses and Answer to Amended Complaint by U.S. Mail to the

Honorable David Langford, P.O. Box 9000, Bartow, Florida 33831; and furnished a

copy of the foregoing by Hand Delivery to Keshara D. Davis, Esq., Bar Counsel for

The Florida Bar, 1000 Legion Place, Suite 1625, Orlando, Florida 32801-5200, and a

copy by U.S. Mail to Kenneth Lawrence Marvin, Esq., Staff Counsel for The Florida

Bar, 651 East Jefferson Street, Tallahassee, Florida 3299-2300, on this 8th day of

April, 2011.

/s/

BARRY RIGBY, ESQUIRE

Florida Bar No.: 613770

47 E. Robinson Street, Suite 204

Orlando, Florida 32801

Telephone: 407-999-2630

Fax: 407-386-6150

Email: rigbylaw@yahoo.com

Attorney for Respondent

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AFFlDA VlT OF FA TIlIMA RIFOA JM I! Y

BEFORE ME. The utld signed authority, personally appellrcd, tat,hinUi H' qa B.'\I'}'. lind

1, My Jlame is Fatllima Rij'qa Bary. I rull eighteen years of ilge, j I'm ofsoUild mind, and t have perwnal kn wledge of lbe faels sel lortll b do.

2. Anomey John S cmbe Ber rep,resemed me in the Orb ndo Depondency CASB NO. Dl>{}9·580 in the Circuit 'onn of the 'imh Judicial Circui l, in and for OTilngc County, Florida, Juvcnile Dlvlsion.ill 2009. Dutin~ mis rcprcsCDlation, I amboriu>d Anomey S embergcr (0 pub iely release to tile media ,he "Investigation and jmeiligenee Memorandum in Suppa oj' the Petition of" Depcnden )''' along ,,~th my Afiidavjt daucd August 30, 2009, to show the reality Of tllC lhreal to my life j ' Ille I cal members of tltc Noor Mosql1e ill Calwll bus,

:l, When the jurisdicTi on of tlte Depetldency cr.'e was traJlsferred 10 Ohio, I asked Attorney StembeJ'ger to comin e I() hdp me in !",rsunol mali! rs unrelated to !he Ol>i" IXpendellcy case.

4. Attontey S~en~ erger was ~)to;Ver paiu or vlJmpenSilL~u for any Qftbe ~egal st:rvir.es pr{)\'ide (0 III although I did "'1Ul! (0 See bern, and my other lewyers, somehow eompellsared lor lheir pw· bono t:me and effort , inforlWlately, b!s wa neVer dOlle,

5. J\ Uomey Sl!.e-mb~rger ru so I:1s,.',l :SLed m~ In overseeing a tru.rt fund inlt i~d oj' an Orrando b~sines.stilihil narne Li Tom Hayes, I have receive a C<lmpl.~" aCCllU!ltl))g 0

It'te lnls~ fund Il:11d lhert.! iU'tl nu q ljJ t: s 1.i llnahl~ nr improp-er tnmsfl~ions in this fund Slnce i[ "'liS ~1arted, Furtller, Attorney S[emO~8c·r hilS n<)t bt>en p"i ll an}' IllI<Jmey's fees from Ihi, lrust fund.

(" I was Ills" ""'"," that my allOrne)', M" ',cmb¢rger, appeared on Fo> Ncw" and other n"V •• , media «lUI''''''' ~nd O<J rnmelltcd on the Ohio Dcpell<lcney C/lSC. I have W11t Iled aU th 'Fox e"" inlcrvicw, which A orney Stem berger p;!I4icip.ltcd in and I bay. n nlljoe 'on ~Q 1h" n.~t I/n'1 these interviews took pi~ee Ot as 10 their OOJlleJl!.

}, A ltomey Sternberger did Jlot div1!l ge allY conlidences, seerelS Of priviJeged mtbrm~tion r~!lard tng his · pJcsent;l(iotl of me, , ,d J have J10 objectic>f1s lu any " f the S1>l1 mems he bas macle pllbllcly,

In my opinion, Attorney Stemberger ohaved i.n " V<'J), pwr",,; i<l ,.e! at d ethical matUlef t! 'ring the eJI!ire lime he r<:J1reSOJ1~e me <lila the time I have kllO"'D him, During the lime uflbe Orland" Dcp~lldcncy case, Mr. '(cmberger spent COlUlHess

' ''!:XH]:B] '[, " ].1,-' FRS

AFF1DA "IT OF FATUIMA RIFQA JMn y

BEFORE ME. The \Ind signed a oority, personally appe~rcd, F~thi1)1a Riiqa Bruy, lmd

1. My name is F~thima Rifqa Bary, I am eighteen years of ~e, j lim of SOUlld mind, and ! 113¥e peJ ronal knowledge oethe faels sel fOrtl l 11 -.; jp.

2. Attorney John S CIllDC gel' represented me in the OrIa.nOc Dependency CASB NO. Ill'<l9·580 ill !hc Clrcllit COlln ofrhe imh Judicial Cireui l, in and fOT Orangc COllllty, Floridl., Juvenile Division. in 20(f9. Dlltin~ tilis fl:prCSClJt"1ion , I 8miloriz<lU Armtllcy ~lcmbcrgcr to pub iely re ease to tile media the "lnvcstigation lind JmeiJigence Memorandum in Support oftlle P"lition of Dependency" along wiill my Afiidtwll dalcd August 30, 2009. 10 show the rtal iry Of lLlc Ihreat 10 my liIe )' Ille

local members of tllc Noor Mos lle in Co lumbus.

:1 . Wbe. the j\lfisdielion of the Depend<:JJcy c.Se ",as lransferred 10 Ohio, I asked AUDrne. SleJlI!lej'ger to conlin e 10 help me in personal mal1ers unrelated 1" !h. Oili" Dependency ca.se.

4. AttOITLey Stem erger was never p.a.itJ or w mpen !uet..! for any vfrne lega] st:rv; r.es provide (0 m although I did .... '[Ill! (0 see bern, and my other lawyers, somehow compellsared for lheir pm-bono lime and effort . linforl1.lnatel)" h's was nO"or dOlle.

5. Attorney Sl!.ernbt:rger aho 1:1:'r..'ilSLtd m~ in ovt·rsooing a trust fund inll iBi.cd by !;U)

Orlando businessman nruneLl Tom Hay"s. I have ",(eive a ()mpIOle acm ullting 0 the trust f\1.f1d ilnd (hen:! W~ nu q r..b t!silionablr: .or improper rnmsuctions in thi.s fun sjnce i[ w~s ~tarted. Furtller, Attorney ~leJTIb"r[l.cr hlL' not btoen p.id a ll}' I1ltomey', fces from Ibis Irus~ fun d.

U. I w ... , Illso . war" lhal my " llorney, Mr. 'Icmb¢rger, app<arod on Fox Ncws Iilld rller new~ media s(",roo:; 3rtd oommCl.ltcd on !he Ohio Dependency CI\.IC. J ha\'e Ivat !led .. lI lh" Fox eWI ,nl"rvicw, which Attorney Stem bcrger participated jJl and I havo no objec 'on to the faG lila! lh (!Sc inrervie \'S took piace or as 10 their vonl nl.

7. AllOrney S!cmbergcr did 1101 divu ge allY conJidences, s.eeJ'elS Ot privileged illformation f"gardlng his rel)leSCmarion of me, lind I have 110 objeeti' ftS lu IDly uf the sUllemems ile has made pu1:>licly.

in my {)pinio!1, Ano['Jl~y Slernberger ~ha..,..cd In 8 very profiess im·~ at :d ethical marmer tl .ring the entire lime he r<:·p;e;xm~c me and the timo J have kll()"D him. D ring the lime "fl],e Orlando ep~ndency case, Mr. tcrnbergcr spenl cOlUllle.ss

"!:XHJBI'r " }J. t . FRB

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huurs a~ my req est keeping me lJl' informed, answeri ng I my qucstions, exp llllning "II pro cdure. ilI1d oplions ill detai l, and I was ""d am oompjctely . ali li ed wllb hi, legal servic"".

'I. Allome)' Slemberg6I in lorviewed [JWl lCl'01'5 lawyers 011 my behalf aJld s \Ired competenl OOUllsd for me in the Ohio case. Hi. d r"'I1S played a major role in my eventual ,afely, obtaining the dependwcy ~tu.s in Obin, and seeming my posicion in utis cOllntry flS a Leg~J Pc.rm31lent Resident of the Vnii d . Ie" . j ,un Ill" did to this lawyer for his p' bonn le!Oal service 10 mc.

10. I . 111 a lso ,'ery UpSC1 that AHorney OmaT Tarazi, the lav.yeI wb opposed me in the Ohio Cou:rl c~e, is now tryin ' I g.et UlOse cln"".s( to me, including Attorney ·ICJl1 bcrs".r. in trouble. Om;.u- Ta.razi both enndueled himsel f unprofessionally Ilfjd

barmc my all"lity to rcomi[~ myselfwrrh IT)' iamil. in a nwnbe, of ways lncl" ding;

a. C.<laml·ling ruld I'ccommcr.ditlll lo ml' parents to file e.riminal-like ck ·es a ll eging thai I was:\l.l "unruly child".

b, F.lin ' lDotions asking the Ohio Juvenile r.ourl lu hl>ld me in conlempt of court.

c. F.ling motions ~'Cci<i ng to p",hibjt me frO )11 recei" il\,g Christm.as curds from my mends and sup rtCT8.

d . fi llnS molions Il> fC'Juirc: my cumpUlet ~ctivity to be moniwr,od .

e . PUI, ujn~ criminal charges agaillst my Ohio I"wl'er ADaie Lloyd.

( Filing rn~IDOS ru'guing thai I sho uld not ge my 'pecial llllllligra I juven ile ~tatus,

g. Wor~ing with my parcnt.< to ,eml my personal diary 10 Ihe Or lando Sentinel n.C\\'Spi!!PGJ" wHhout my const::nl Of ermjssion, who th-e.u t ~ mcd around Bnd publi hed rTI ) ' inner moS! personal ""d priva!c I .oughts ;wd the Eccrels of my heart lO tile wlmle wurld.

II. Co traT), 10 federal law lind wilhout permission, inte,eeptin,g, op rung. and tl en ana ching to a Iiling in the Ollio Juvenile COllJ1, ~ private leUeT relit by me through U . . llIa ii til my pUSI"'r.

•. Filillg obj cerion." 10 ti,e UJlcontc cd dcpendenc,y dctcrmin.tioll.

J. KlIY (tyiJlg lO get my .Horney. John 81ombc'!;e" in trouhlc .

.. ...;.. ~

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huurs a~ my ""'l eSI kccpinS me Iy informed, ans\>''Cri ns all lilY qucstions, exp l~lning nil pro cd\lrc. !U1d oplions ill dew l, and I wa .. "" d am complct ely salified with hi., legal servic",..

g, AtiomcJ S!emoerg )f in torviewed m UlleJ'OUS lawyets 011 m y beJmJf and SCCUJ"cd

ompete"t Wl.I!lSei for mc in flIe Ohio case. Hi. e/f"ru played a major role in my ""cnw. 1 safely. oboainins the dependcncy stalu,;; in Ohin, and seeming my posicion in utiscounfr)' os a Legal Permanent Residen! of lbe V,uled Stale," am ~,a eful to tltis [. "'Ye, for hi& pro-bonn 10\,\,,1 ,«vice \0 me.

10, I am also very uJlSCt that AUomey Oma] '['''lIID, the la'»YG wh opposed me in the Ohio Cnurt case. is now U)ing t get U1000 cln=,( 1<> me, including Attorney 'temberser. ia £rQub!e. Omill' Tarozi both c(mdueled im5e1 f W1pwiessionaJly and

blllll1c my all' lily to reWlir~ myseU'wnb Ill)' i.mil. i ll a nwnber oCv.'a}'S including;

a. (;"'true!ing and commecding 10 illY parcnCs t () me c,nminBI-like ell, es a ll eging tha.t l was an uunrul

p child I!,

b. F,lin' motions askin tbe Ohio Juvenile Court 10 IlD[d me in c('ntempt 0 court,

C, FdJni ' motions S'CO,king to pruhibH Jl}, from recti \fi.n,g Cbri:nmas cl:11"ds fr01U JllY friend., ilJld sup rtCT8.

FiIIllS mutiollS to rcquin: my cumpute! ~cti,i ty to be monitored.

o. J>1JJ,ujn~ criminal e·har 'es against my Ohi" h''''l'er Allgi. I -I llyd.

( Fil ing m~IIlOS aJ'guing that I sho uld nOI ge nl)' $pecial iJllJll igra t i ""l:11ile ~tatl\s.

g, Wor~'ng with my parenl' (0 send my peronal diar)' to IDe Orlando Sentine l [1.C'wspl:!!per without my consenl {JT per'mjsSi(H'l, "'iho Lhen tt~rnc:d anlu.nd and pUblIshed my inner IllOst personal i1J1d priv3iC I oughlS illld me Sc(;Tcts of my heart 10 tJlC wlmle ",orld.

D. Cootrary to federal law and wi th" ul permiSSion, ;Pte,eeptin,g. op nillg, ~nd then ~[mcnlng to a liJ ing in the Ohio Juvl:11i1e Coun, a private Icue.r sellt by me tbrO\lgh U.S. Jlla il tn my pw;tur.

I. Fiii])g obj couons to the UJlcon c ed dependency dctermin.tioD.

J. Nuw trying to gct m ' attorney. Jonn 8tombc'!,er, in trouhle .

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II . All mey T31azi behaved very iJJappropri tcly during the Ohio eil,e. and he is the nne who ought to IJc scvercly disci plined. not t\>lr- ~ l cmbe ·er.

12. makiIJg titis statement Ii-cely and voluntarily, and have been pmmisod n()ming in re(urn_

FURTHER AFFIANT SA YETH NOT •

. <t4wno.~~ f atwOJjl Rifq flrl' {j -

Sworn to and 5ubsaib ~ to me his 3.-.1 day (If /)ec.r>JH-1,. 20 I O .

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