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Elian Gonzalez Affair Returns to Haunt Don Appignani, Flagler County Judge Candidate

| July 25, 2012

Don Appignani, flagler county judge candidate. (© FlaglerLive)

Don Appignani. (© FlaglerLive)

Perhaps one or two people very familiar with the Florida bar’s disciplinary archives aside, if not one or two of the seven candidates running for Flagler County judge, no one could have expected that the Elian Gonzalez affair would suddenly become part of the background noise in that county judge  race.

Now it has.

The odd convergence is in the form of an unearthed public reprimand of Don Appignani by the Florida bar, dating back to 2002, delivered anonymously to local news outlets, just as a similar reprimand—concerning Marc Dwyer—was packaged and delivered to the same news outlets in May. Appignani and Dwyer are among the seven candidates running for that county judge position, which Judge Sharon Atack is resigning at the end of the year. The reprimands are public records.

Full Disclosures

If news outlets, this one included, were doing all the background checks they should be doing, the documents would have been unearthed independently. The fact that they were delivered anonymously doesn’t diminish the reprimands’ validity: they happened, they are a serious matter, they are part of the official record. But the manner in which they were delivered suggests that the judges’ race is no less of a cutthroat contest than its other counterparts: Those are not readily accessible documents, and only a select group of people, usually attorneys who know each other (or their staff or their campaign volunteers), know of their existence.

The Dwyer cases have been written about extensively. The Appignani reprimand never has until now.

Appignani said he was going to disclose the matter anyway, because one of the questions sent by FlaglerLive to all county judge candidates addressed past disciplinary issues with the bar specifically. Appignani hadn’t yet sent in his responses. (Those interviews will be published later this week.) Asked whether he would have disclosed the matter had such a question not been posed, he said: “I don’t know how to answer that, because it was so long ago. It was more than 10 years ago.”

He added: “The fact that it hasn’t been disclosed is, number one, it was a long time ago, actually 11 years ago when this transpired, the final thing came down a little over 10 years ago. Number two, I adamantly say that I still feel I did not do anything wrong. To this day I’ll say that. I said it back then. I’ll email you my responses. It was a long time ago, it was a stressful period in my life, I did it to move on and to stop it from getting blown out of proportion any more. And that’s where it is.”

In the 2002 settlement with the Florida bar’s disciplinary process, Appignani agreed to a public reprimand on two counts: violating the conflict of interest rule under the bar’s Rules of Professional Conduct, and revealing the contents of an email against his client’s wishes. The bar also concluded that Appignani “was not acting out of any dishonest or selfish motives” (Appignani had nothing to gain, and indeed gained nothing, by his actions), and that he was “remorseful.” He paid $1,903 in court and administrative fees. He did not have to take an ethics class (as lawyers sometimes do after certain infractions). He had not faced any other disciplinary actions since being admitted to the bar in September 1997. He hasn’t faced any other such action since the 2001 case.

From Elian to Appignani

It is a complicated case that took place in the swirl of the Elian Gonzalez affair, its politics and its scandals, involving Appignani only peripherally—as a labor attorney in Miami at the time—but involving him nevertheless to the point of having him appear on a number of television shows and in news articles when he represented a whistleblower involved in the affair. (Appignani’s media appearances, of course, were related to his representation of a whistleblower, not to the Florida bar issue.)

You might want to slow your reading pace from this point on.

In 2000, Elian Gonzalez was the 6-year-old Cuban boy who’d escaped to the United States with family the year before. Elian’s mother had drowned in the escape attempt. On April 22 that year, Elian was at the center of an Immigration and Naturalization Service raid in which the boy was seized and returned to his father in Cuba. The seizure was in accordance with two federal courts’ rulings that only Elian’s father could decide his fate, not his relatives in Miami.

Appignani was an attorney for the union that represented INS employees. One of those employees, David Wallace, had written an email to Wallace’s union vice president, Jose Touron, 10 days before the raid, raising alarms about the way the INS was planning the raid. Wallace was concerned about INS employees’ safety, saying  they would be “at risk of serious public reprisals.” Touron took the email, added politicized comments opposing the seizure, and sent it on to his superiors.

What Wallace had written was “protected union speech,” Appignani notes. What Touron had written was not. But the two emails got ruinously confused from that point on.

Conflicting Conflicts

When INS higher-ups read the emails, they detained Wallace, who was eventually demoted. The union hired Appignani to represent Wallace. Appignani was also representing Touron, but as a union representative on the usual grievance and contract negotiations issues, not in any way related to the Wallace issue.

During the proceedings, Wallace and Touron had a falling out, with Wallace’s wife and Touron running against each other for a union position. Appignani was in the middle. He didn’t think there had been a conflict of interest representing both men initially. Wallace filed a complaint against Appignani, charging that there was a conflict, that Appignani did not properly defend Wallace against allegations that he (as opposed to Touron) had politicized the email in question, and that Appignani had not properly explained to Wallace that there could be a conflict between his interests and those of the union.

Complicating the matter further was Appignani’s entirely unrelated representation of yet another INS employee, Ricardo Ramirez, a whistleblower at the center of revelations of bigoted and unprofessional, anti-Cuban practices by INS employees during the Elian Gonzalez affair. The Miami side of the Gonzalez family had seized on any revelations that made the INS look bad to buttress its case through a high-profile legal team. Appignani was subpoenaed for a deposition. Along the way, he was asked about the Wallace and Touron email, the contents of which, Appignani said, had been disclosed by the INS earlier anyway.

“When I was first asked by Mr. Ramirez to speak to Mr. Guralnick [Ronald Guralnick, the Gonzalez family attorney], neither Mr. Ramirez nor I ever thought in our wildest dreams that this would receive the attention that it did,” Appignani wrote in an 8-page letter to the assistant staff counsel at the Florida bar, laying out his version of events. (The entire letter appears at the foot of the article.)  “Although Mr. Touron and Mr. Wallace were named in the deposition as clients of mine, and the e-mail incident was spoken about, the news media never printed anything about the e-mail incident when the story first became public. At that time it appeared that the news media had no interest in the e-mail incident.”

Appignani claims in the letter that had he not complied with the request to disclose the information, the email would have become even more publicized “and may have put Mr. Wallace at risk for much more news media coverage than he received.” But Appignani concedes: “The one thing that I did not do was consult with Mr. Wallace before releasing the e-mail to the Gonzalez Family attorney’s. As a sole practitioner, this was a very stressful period in my practice, and all the news media attention took a huge toll on both my personal and professional life. I truly believe that I did not benefit from the story. I did not do this with any intent to benefit myself or the Union, to injure Mr. Wallace, and at no time did I ever deceive Mr. Wallace as to what my intentions were.” He added: “I still fail to see how my actions caused Mr. Wallace any injury or any potential injury to him.”

“I Handled the Situation Correctly”

Wallace’s name came out when Jay Weaver, a Miami Herald reporter, unearthed the deposition and the email from the court records and contacted Appignani for an interview. “I probably made a couple of mistakes. I’m not infallible,” Appignani said in today’s interview.  “One of them is I learned not to trust the news media, because they screwed me.” He was referring to the Herald article, where he says he’d told Weaver that Wallace’s involvement was focused on the safety of INS employees only and had nothing to do with the political ramifications and allegations of Touron’s additional email. The Herald story did not make that distinction, and revealed Wallace.

“I still feel to this day,” Appignani wrote in the letter to the bar, from May 2001, “that I handled the situation correctly, except for not contacting Mr. Wallace before giving up the e-mail, and that I did my best to protect his interest. If I did not give up the e-mail and talk to The Miami Herald reporter, I feel that Mr. Wallace would have received much more press and that there was a good chance that the press would have been worse.”

He concluded: “I never at anytime felt there was a conflict of interest in representing both Mr. Wallace and Mr. Touron. Mr. Wallace did not like Mr. Touron, and that is why he did not want me to represent him. That is the only reason. At no time was the representation of Mr. Touron materially adverse to Mr. Wallace’s. All along I felt that both parties did nothing wrong in sending an e-mail that included what the INS perceived as sensitive information, when the Department of Justice had released this same information to the news media two days prior to the e-mail.”

Don Appignani’s Complete Letter to the Florida Bar

Don Appignani Response to the Florida Bar

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13 Responses for “Elian Gonzalez Affair Returns to Haunt Don Appignani, Flagler County Judge Candidate”

  1. Ky says:

    This is very interesting indeed, and I’m glad that it came out when it did. Here’s why:

    1) I hope that Pierre’s journalistic curiosity can get to the bottom of who sent these anonymously delivered packages, as I think that’s where the real news is.

    2) I’m convinced once again, when I read this article and Mr. Appignani’s 2001 letter to the Florida Bar, that he has both tremendous life and legal experience, as well as integrity and common-sense. These are clearly qualities one wants to see in a Judge.

    3) What was planned as an attempt to hurt Mr. Appignani’s reputation, has caused the opposite reaction for me.

    I appreciate the clean campaign Mr. Appignani has been running, and wish him best in the upcoming election.

    • Magnolia says:

      I agree with Ky. My family loves the fact that this candidate is not a chosen one of the local legal establishment. We intend to support him.

      Vetting of candidates by local media? You HAVE to be kidding.

  2. Ralph Belcher says:

    I think that the candidate responsible for sending this is off my list to vote for. Likely the same one that sent Dwyers. She’s scratched off my list. Done. I don’t play into this kind of stuff, especially when done anonomously. For shame. The voters are too smart to accept this kind of campaigning.

    • Eleanor says:

      I don’t know who you think “she” is but you shouldn’t make accusations that you can’t prove. Shame on you! Get your facts straight before you ruin someone’s reputation!

  3. Geezer says:

    Mr. Appignani’s has my vote – I like that he’s a working-class man who bettered himself through higher education as he approached mid-life. He has a feel for what the “regular guy” goes through every single day.

    This revelation of wrongdoing is tantamount to a tiny blemish on his record.

    None of the other candidates are perfect, especially Mr. Dwyer, whose negligent actions did indeed hurt a client. Mr. Dwyer seems overly ambitious to me, like someone who will step on as many toes as he needs to, in his quest for glory.

    Don Appignani has my vote.

  4. ricky says:

    Dwyer belongs in front of the bench not behind it..

  5. mr. flagliary says:

    Don still has my vote! This is a late punch someone attempted and simply missed by a long shot. It shows how low people can get when they are desperate! Also how coward people can become when they hide and don’t show there name. This shows don has experience and is an honest good man! Vote for Don!

  6. connie mccormick says:

    In regards to this blatant, overly zealous attempt to dishonor Donald, I feel it is very important to understand that Mr. Appiignani’s ability to be unbiased , and understanding, and capable to determine the exact content of purpose of representation is admirable. This man represents true honor and realism that our govermental offices seem to be lacking. To whomever “leaked” this information…it has never been “hidden” I ask..who are you, why did you feel you must do this, and most up (or woman) and take responsibility. I would surely like to know, as i would certainly NOT vote for you…but wait..that’s right < I am voting for Don….and i advise you all to do so. A fair man, who offers fair representation, for those of us who usually do not have much fairness in our lives. Stand by this man and make change !happen!

  7. Will says:

    @Ralph Belcher said “I think that the candidate responsible for sending this is off my list to vote for. Likely the same one that sent Dwyers. She’s scratched off my list. Done.”

    I think you need to retract that statement. You’re assuming too much. 1) You assume that a candidate sent it and 2) you assume it’s one of the two ladies who are candidates for judge, and 3) you assume that it was sent by the same person who allegedly sent something about Mr. Dwyer.

    Nothing has been presented to indicate that your assumptions are valid, and your remark could unfairly damage other candidates.

    Mr. Appignani is a well qualified and personable candidate who should not be the subject of secret attacks about old old news. He seems to have responded openly and fairly. I hope this one will stop here.

    • Eleanor says:

      What I said to Ralph goes double to you!!! I guess you all run in the same circuit. “She” must be a real threat to your campaign otherwise you wouldn’t accuse “her” of these offenses!!!!!

  8. PalmCoast1l says:

    A very well presented interview. Mr. Appignani’s honesty and integrity go beyond expectations. He is as always, professional.

    My vote has been and continues to be with Don!

  9. Lucca0417 says:

    The political climate in today’s society has unearthed a low that we, as citizens, must continue to interpret as damaging efforts with delusive information to destroy a candidate. The person or persons responsible for this act must be ashamed of ones meager efforts with no real conscious. Don Appignani is only come out of this now as a better candidate and human being. My wife and I will now only campaign with more integrity as Don has but with a stronger sense of who will do the right thing for this community.


    I feel I need to respond to the News-Journal article published on August 10, 2012, in reference to The Florida Bar reprimanding me in 2002, because the News-Journal article was not entirely accurate. I just want to set the record straight.

    First, the article failed to mention that the News-Journal receive an anonymous package several weeks ago in reference to the reprimand, as did several other news media outlets. The anonymous person failed to send my response to the Florida Bar complaint from 2001, which was an 8 page single space letter and contained the whole story about this issue. The other news media outlets covered the story promptly. However, the News-Journal waited until voting was in full swing to publish the article. Why did the News-Journal wait until the 11th hour to publish the article? It appears the News-Journal may have some bias in reference to my candidacy for Flagler County Judge. Maybe it’s because I am not politically connected, nor am I connected to the local legal community. I am a sole practitioner attorney and I am not beholden to any outside influence.

    This issue arose due to my representation of an INS Special Agent that was involved in the removal of Elian Gonzalez, a little boy whose mother drowned when they floated to Miami from Cuba, and was unrelated to my representation of David Wallace, the INS Special Agent that filed the bar complaint against me. Elian’s father who remained in Cuba wanted his son returned, and the Miami Gonzalez relatives objected to his return. My representation in reference to the Special Agent that was part of the INS removal team ended up with extensive news media coverage where I was part of no less than 29 news paper articles and ten television news shows. My client became a whistleblower when he revealed, through me, revelations of bigoted and unprofessional, anti-Cuban practices by INS employees during the Elian Gonzalez affair.

    At that time Mr. Wallace, was facing disciplinary actions over an e—mail he sent to an INS union official due to perceived safety issues, and asked me to keep his name out of the news media if possible. To this day I still feel I did not do anything wrong. I gave the e-mail Mr. Wallace sent to his union to the Gonzalez family attorneys pursuant to a subpoena. Furthermore, the e-mail was already a public record and if I resisted Mr. Wallace’s would have endured much more news media attention. The fact is he was only involved in one news article published by the Miami Hearld. My actions actually mitigated any damages Mr. Wallace would have suffered.

    Also the News-Journal article was misleading with their statement that I plead guilty to the Bar complaint charge. The fact is I entered into a consent agreement where I agreed to have the reprimand issued. At that time I felt it was in the best interest of my clients and me to put the whole situation behind us and move on with our lives. The Florida Bar investigation found that I had not acted “out of any dishonest or selfish motives, and that I had “made full and free disclosure to the grievance committee” I did not have to take an ethics class (as lawyers sometimes do after certain infractions), and have not faced any other disciplinary actions since being admitted to the bar in September 1997, nor have I faced any other such action since the 2001 case.

    To this day I feel I handled the situation correctly, except for not contacting Mr. Wallace before giving up the e-mail, and that I did my best to protect his interest. As a sole practitioner, this was a very stressful period in my practice, and all the news media attention took a huge toll on both my personal and professional life. I did not benefit from my actions, except for gaining valuable insight in dealing with the news media, and at no time did I ever deceive any of my INS clients. As I said before, I just want to set the record straight.

    Don Appignani – Candidate for Flagler County Judge

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