JACKSONVILLE, Fla. – Did former Public Defender Matt Shirk violate attorney-client privilege when he spoke about Cristian Fernandez's case with a documentary crew?
That question lies at the heart of a state ethics complaint brought against Shirk, who filed a motion for his former client to testify about it at an administrative hearing Friday.
An attorney for the Florida Commission on Ethics filed a response, citing a psychologist's opinion that testifying could have a negative impact on Fernandez's well-being.
As Public Defender in 2011, Shirk represented Fernandez when he was charged with murder at the age of 12 in the death of his 2-year-old half-brother. Fernandez, 20, later pleaded guilty to a lesser charge of manslaughter. Shirk was criticized for speaking candidly about the case to a film crew afterward.
In his motion, Shirk argues that his interview did not violate Fernandez's trust because the information he shared with the film crew was mostly public knowledge, details he says served Fernandez’s interests and were not considered confidential.
Elizabeth Miller, who represents the ethics panel, responded by saying Fernandez never waived his privilege. Based on the opinion of a psychologist who has known Fernandez since his arrest, she added, revisiting the case could stunt Fernandez’s rehabilitation and keep him from moving on with his life.
“As Fernandez’s counsel, (Shirk) saw a need to protect young Fernandez’s welfare,” she wrote. “The need to protect his welfare continues today. Fernandez is a non-essential witness, thus, there is no reason to expose him to potential emotional trauma through yet another appearance in a judicial setting.”
Besides, Miller wrote, any questions Shirk has for Fernandez could be answered instead by his guardian ad litem, Hugh Cotney, who is listed among the witnesses scheduled to testify in the case.
The administrative hearing is scheduled for 9 a.m. Friday at the Duval County Courthouse.