IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR, Supreme Court CaseBy 9No. SC11-1863 T
Complainant, ?The Florida Bar File
v. No. 2010-50,750 (09B)
RUSSELL SAMUEL ADLER,
Respondent.
INITIAL BRIEF
Kenneth H. P. Bryk, Bar CounselThe Florida BarThe Gateway Center1000 Legion Place, Suite 1625Orlando, Florida 32801-1050(407) 425-5424Florida Bar No. [email protected]
Kenneth Lawrence Marvin, Staff CounselThe Florida Bar651 East Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. [email protected]
John F. Harkness, Jr., Executive DirectorThe Florida Bar651 East Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. [email protected]
TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................... iTABLE OF CITATIONS.......................................................................................... iiPRELIMINARY STATEMENT................................................................................1STATEMENT OF THE CASE..................................................................................2S AOTTEMENT F THE FACTS................................................................................4SUMMARY OF ARGUMENT .................................................................................7ARGUMENT .............................................................................................................9SSUEI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ENGAGING IN A PATTERN OF MISREPRESENTATIONS WARRANTSTHE IMPOSITION OF A 91 DAY SUSPENSION IN LIGHT OF THEAGGRAVATING FACTORS PRESENT
C CSONLU ION........................................................................................................26CERTIFICATE OF SERVICE.................................................................................27CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN........28
1
TABLE OF CITATIONS
Page No.
Cases
The Florida Bar v. Baker, 810 So. 2d 876 (Fla. 2002).............................................. 7The Florida Bar v. Bennett, 276 So. 2d 481 (Fla. 1973)......................................... 23The Florida Bar v. Brown, 790 So. 2d 1081 (Fla 2001)......................................... 20The Florida Bar v. Brown, 905 So. 2d 76 (Fla. 2005)....................................... 18, 23The Florida Bar v. Corbin, 701 So. 2d 334 (Fla. 1997).......................................... 20The Florida Bar v. Draughon, 94 So. 3d 566 (Fla. 2012)......................................... 8The Florida Bar v. Gwynn, 94 So. 3d 425 (Fla. 2012).............................................. 9The Florida Bar v. Hall, 49 So. 3d 1254 (Fla 2010)................................................. 7The Florida Bar v. Herman, 8 So. 3d 1100 (Fla. 2009)..................................... 16, 22The Florida Bar v. Korones, 752 So. 2d 586 (Fla. 2000).......................................... 8The Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983).............................................. 24The Florida Bar v. Nuckolls, 521 So. 2d 1120 (Fla 1988)..................................... 21The Florida Bar v. Renke, 977 So. 2d 579 (Fla. 2008)........................................... 18The Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2002).......................................... 7The Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003)........................................ 22The Florida Bar v. Schultz, 712 So. 2d 386 (Fla. 1998)................................... 10, 16The Florida Bar v. Shankman, 41 So. 3d 166 (Fla. 2010)....................................... 11The Florida Bar v. Shapiro, 456 So. 2d 452 (Fla. 1984)......................................... 22The Florida Bar v. Siegel, 511 So. 2d 995 (Fla. 1987)........................................... 21The Florida Bar v. Smith, 866 So. 2d 41 (Fla. 2004).............................................. 11The Florida Bar v. Valentine-Miller, 974 So. 2d 333 (Fla 2008)........................... 24The Florida Bar v. Webster, 662 So. 2d 1238 (Fla 1995)...................................... 14The Florida Bar v. Wilson, 425 So. 2d 2 (Fla. 1983)................................................ 9The Florida Bar v. Yonker, 37 Fla. Law Weekly S545 (Fla. Sept. 6, 2012)..... 17, 23
Rules
3-4.1........................................................................................................................... 73-4.3........................................................................................................................... 24-1.5(f)(5).................................................................................................................. 24-8.4(a)...................................................................................................................... 2
11
4-8.4(c)................................................................................................................ 2, 16
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PRELIMINARY STATEMENT
The Complainant, The Florida Bar, is seeking review of a Report of Referee
recommending a thirty day suspension with automatic reinstatement to the practice of
law.
Complainant will be referred to as The Florida Bar, or as the bar. Russell
Samuel Adler, Respondent, will be referred to as respondent throughout this brief.
References to the Report ofReferee shall be by the symbol RR followed by the
appropriate page number.
References to specific pleadings will be made by title. Reference to the transcript
ofthe final hearing are by symbol TR, followed by the date ofthe hearing, followed by
the appropriate page number. (e.g., TR August 16, 2012, p. 289).
References to Bar exhibits shall be by the symbol TFB Ex followed by the
appropriate exhibit number (e.g., TFB Ex. 10).
1
STATEMENT OF THE CASE
On August 8, 2011, the Ninth Judicial Circuit Grievance Committee "B" voted
to find probable cause in this matter. On September 21, 2011, The Florida Bar served
its Complaint and on October 6, 2011, this Court issued its order to the ChiefJudge of
the Fifteenth Circuit to appoint a referee within two weeks. The referee was appointed
on October 11, 2011. The final hearing was held on August 16, 2012 and the hearing
as to sanctions on September 13, 2012. The referee issued her report on October 2,
2012. The referee found respondent guilty ofviolating the following Rules Regulating
The Florida Bar: 3-4.3 for committing and act that was unlawful or contrary to
honesty and justice; 4-1.5(f)(5) for failing to ensure his law firm's settlement
statements in personal injury cases were executed by all participating lawyers, as well
as the client; 4-8.4(a) for violating or attempting to violate the Rules of Professional
Conduct, or for knowingly assisting or inducing another to do so, or for doing so
through the acts ofanother; and 4-8.4(c) for engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation. The referee recommended respondent be suspended
from the practice of law for a period of thirty days, with automatic reinstatement, and
pay costs then totaling $3,671.75.
2
The Executive Committee of the Board of Governors of The Florida Bar
considered the Report of Referee and voted to seek review of the referee's
recommendation as to a thirty day suspension The Executive Committee voted to seek
imposition ofa ninety-one day suspension with proofofrehabilitation required prior to
reinstatement. The Florida Bar filed its Notice of Intent to Seek Review ofReport of
Referee on November 13, 2002. The bar filed its First Amended Statement of Costs
reflecting the transcript costs on December 12, 2012.
3
STATEMENT OF THE FACTS
Respondent was employed as an attorney by the law firm of Rothstein
Rosenfeldt Adler (hereinafter referred to as the "firm"), from February 1, 2005 until its
dissolution on or about November 1, 2009 (RR p. 2). From its inception and until its
dissolution, named partners Scott Walter Rothstein and Stuart Alan Rosenfeldt were
the only equity shareholders in the firm (RR p. 2). At or about the time that respondent
joined the firm in February 2005, Mr. Rothstein advised respondent that he would
receive equity shares in the firm if respondent met certain goals (RR p. 2). Despite his
use of the title "Shareholder" and being designated as the vice-president for the firm,
respondent repeatedly testified under oath that he never received any equity shares in
the firm (RR p. 2).
While employed by the firm, in or about August 2009, respondent purchased a
cooperative apartment in New York City for which he obtained one hundred percent
financing from Mr. Rothstein and/or entities created and funded by Mr. Rothstein (RR
p. 3). Respondent borrowed funds and signed a promissory note and mortgage for a
loan that represented approximately ninety percent of the purchase price (RR p. 3).
Respondent took a payroll advance from the firm for the remaining ten percent of the
purchase price for which he also signed a promissory note (RR p. 3) Respondent
4
believed that the cooperative apartment board had a policy not to approve the purchase
of a cooperative apartment where one hundred percent of the purchase price was
financed (RR p. 3). Although respondent disclosed to the cooperative apartment board
that he had borrowed ninety percent of the purchase price from Mr. Rothstein and/or
entities created and funded by Mr. Rothstein, he did not disclose that he had borrowed
the remaining ten percent ofthe purchase price by taking the payroll advance for which
respondent had signed a promissory note (RR p. 3). The payroll advance was another
loan (RR p. 3). Further, respondent advised Frank Veilson, a real estate broker
involved in the purchase of the cooperative apartment, and the cooperative apartment
board through Mr. Veilson, during a telephone conversation and in an electronic mail
message that respondent had a twenty percent equity share in the firm (RR pp. 3-4).
Although respondent subjectively, at that time, believed he was entitled to have the
equity share, he knew that he did not have any equity in the firm (RR pp. 3-4).
Respondent's assertions were untrue (RR p. 4). Respondent admitted under oath that he
never had any equity shares in the firm either when he communicated with Mr. Veilson
or at any other time (RR p. 4). In an electronic mail message, respondent asked Mr.
Rothstein to direct Irene Stay, the ChiefFinancial Officer for the firm, to issue a letter
to the cooperative apartment board that misrepresented the financial status of
respondent in the firm as a shareholder, respondent's finances and respondent's access
5
to additional funds (RR p. 4). The letter, which contained excerpts from respondent's
electronic mail message, was issued by Ms. Stay to the cooperative board (RR p. 4).
Finally, while respondent was employed by the firm, he was the supervisor of
the firm's tort litigation practice group (RR p. 4). During respondent's entire tenure
managing the firm's tort litigation practice group, approximately four years, neither
respondent nor any other attorney who participated in personal injury cases litigated by
the firm executed the client settlement statements as required by the Rules Regulating
The Florida Bar. In fact, none of the settlement statements prepared by respondent's
department contained a space or line for an attorney to sign the settlement statement.
Respondent testified that he was responsible for supervising the attorneys in his group
and for reviewing the settlement statements (RR p. 4).
6
SUMMARY OF ARGUMENT
In connection with his purchase of a cooperative apartment in New York City,
respondent intentionally made two material misrepresentations and one intentional
misrepresentation by omission. Furthermore, he caused a third person to make a
misrepresentation ofmaterial fact. In addition, respondent, a long time personal injury
law practitioner and manager ofhis firm's personal injury practice department, failed
to ensure the firm's settlement statements, which he prepared and/or routinely
reviewed, complied with the Rules Regulating The Florida Bar.
Recently, this Court addressed the discipline of an attorney for his private
conduct which involved fraud. "Although Draughon was acting on behalf ofhis own
corporation, and not as a lawyer representing a client in a transaction, he is nonetheless
a member of The Florida Bar and subject to the disciplinary authority of this Court.
See R. Regulating Fla. Bar 3-4.1. The Court expects members of the Bar 'to conduct
their personal business affairs with honesty and in accordance with the law.' Fla. Bar v.
Hall, 49 So. 3d 1254, 1261 (Fla. 2010)(quotingFla. Bar v. Baker, 810 So. 2d 876, 882
(Fla. 2002). Moreover, we have consistently stated that basic fundamental dishonesty is
a serious flaw, one which cannot be tolerated by a profession that relies on the
truthfulness of its members. Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002)
7
(citing Fla. Bar v. Korones, 752 So. 2d 586, 591 (Fla. 2000))." The Florida Bar v.
Draughon, 94 So. 3d 566, 571 (Fla. 2012). A course ofconduct consisting ofdeliberate
fraud mandates a suspension of ninety-one days with proof of rehabilitation prior to
reinstatement, especially in light ofthe pattern ofmisconduct, respondent's significant
experience in the practice of law and the existence of a selfish motive.
8
ARGUMENT
ISSUE
ENGAGING IN A PATTERN OF MISREPRESENTATIONSWARRANTS THE IMPOSITION OF A 91 DAY SUSPENSION INLIGHT OF THE AGGRAVATING FACTORS PRESENT
The standard for review ofa referee's recommendation as to discipline is broader
than that afforded to the factual findings because this Court has the ultimate
responsibility for imposing the appropriate sanction. The Florida Bar v. Gwynn, 94 So.
3d 425, 432 (Fla. 2012). In general, however, this Court does not disturb a referee's
recommendation as to discipline if it has a reasonable basis in case law and the Florida
Standards for Imposing Lawyer Sanctions. Gwynn, 94 So. 3d at 432. When choosing
to increase the discipline recommended by a referee, this Court has stated that "if the
discipline does not measure up to the gravity of the offense, the whole disciplinary
process becomes a sham to the attorneys who are regulated by it." The Florida Bar v.
Wilson, 425 So. 2d 2, 4 (Fla. 1983). The discipline recommended by the referee in this
case does not measure up to the gravity of respondent's misconduct and, based upon
the case law and applicable standards, should be increased to a rehabilitative
suspension. Respondent's intentional pattern of misrepresentations for a personal
9
pecuniary purpose warrants the imposition of a suspension requiring proof of
rehabilitation.
Respondent admitted that he deliberately misrepresented his equity interest in his
law firm in order to achieve his objective of buying a cooperative apartment unit in
New York City (TFB Ex. 19 pp. 6, 12). Respondent made the misrepresentations
because he believed the cooperative apartment board might not otherwise have
approved his purchase, especially in light ofrespondent's credit problems and the fact
that he was obtaining one hundred percent financing (TR August 16, 2012 pp. 111-
112, 114; TFB Ex. 21 p. 23). Respondent furthered his misrepresentations by
telephonic and electronic mail message communications in which he repeatedly lied
about his equity interest in his law firm (TFB Ex. 6). He intentionally misrepresented
his wife's income from her business in order to present a more desirable financial
picture to the cooperative board because he knew his overall financial situation was a
concern and could negatively affect the cooperative board's decision to approve the
purchase (TR August 16, 2012 p. 11; TFB Ex. 5). Respondent intentionally engaged in
active misrepresentations in order to achieve his purchase of the property he desired.
Engaging in conduct involving dishonesty, misrepresentation, fraud, or deceit
where the fraudulent misrepresentations are not made to the court warrants suspension
from the practice of law. The Florida Bar v. Schultz, 712 So. 2d 386, 388 (Fla. 1998).
10
Intent is a necessary element to prove and this may be accomplished by showing the
conduct was deliberate or knowing. The Florida Bar v. Shankman, 41 So. 3d 166, 173
(Fla. 2010). An attorney's motive is not a determinative factor. The Florida Bar v.
Smith, 866 So. 2d 41, 46 (Fla. 2004). Clearly respondent's actions were deliberate and
knowing. Respondent testified that he was aware the cooperative board would allow
ninety percent financing (TR August 16, 2012 pp. 111-112) but believed it would not
permit the purchase ifhe was receiving one hundred percent financing (TFB Ex. 21 p.
23). He further testified that he "really wanted to not miss this opportunity" (TFB Ex.
20 p. 102) to purchase the cooperative apartment because, as his wife testified, they
were getting the cooperative apartment for a good price (TR, August 16, 2012 p. 66).
Respondent testified that he asked Mr. Rothstein for a "loan" to purchase the
cooperative apartment because respondent's credit rating was too low to qualify for a
conventional loan on what would be considered a second home (TFB Ex. 20 p. 102).
Respondent knew his debt to income ratio was too high and thus could present an
obstacle to achieving his objective (TFB Ex. 20 p. 102).
In his November 23, 2009 deposition (TFB Ex. 19), respondent admitted under
oath that he knew he was not an equity partner in his law firm (TFB Ex. 19 p. 12).
Respondent gave this testimony only a few months after he closed on the purchase of
the cooperative apartment in August 2009. He completed his application for the
11
purchase on May 20, 2009 (TFB Ex. 3), in which he affirmatively stated that he was a
"shareholder" in the law firm. Between the date he submitted this application and the
sale was finalized, he engaged in a series of communications with Frank Veilson, the
real estate broker who assisted respondent with the application process (TR August 16,
2012 p. 26) in which respondent made misrepresentations for the specific purposes of
deceiving both Mr. Veilson and the cooperative apartment board so that respondent's
application for the purchase would be approved by the board. Respondent
misrepresented to Mr. Veilson that he was a twenty percent equity owner in his law
firm (TFB Ex. 5). Yet respondent admitted in his deposition of November 23, 2009
that he knew within a few years of starting work for the firm in February 2005 (TFB
Ex. 19 p. 6) that he was not going to be receiving the promised shares in the firm (TFB
Ex. 19 p. 12). Respondent decided not to pursue the matter because his compensation
was satisfactory (TFB Ex. 19 p. 12). Respondent's only reason for leading Mr. Veilson
and the cooperative apartment board to believe he was an equity shareholder in his law
firm was to the board would approve his application to purchase the apartment for a
great price.
Respondent also misrepresented to Mr. Veilson and the cooperative apartment
board his wife's income from her business. In his electronic mail message to Mr.
Veilson ofJune 30, 2009, respondent stated that his wife's earnings from her business
12
were sufficient to "defray all ofher personal expenses, in addition to some household
expenses." (TFB Ex. 5). Respondent's wife testified that her business earned no
income between 2007 and 2009 and that she took no salary during this time period (TR
August 16, 2012 pp. 60-61, 70).
Not only did respondent actively misrepresent his ownership interest in his law
firm and his wife's income, he failed to make either Mr. Veilson or the cooperative
apartment board aware that he also was financing the down payment. Mr. Veilson
testified that neither he nor the board were aware that respondent was obtaining one
hundred percent financing (TR August 16, 2012 p. 48). Mr. Veilson further testified
that this fact was not apparent from a review ofrespondent's cash assets. According to
Mr. Veilson, respondent advised that the reason his personal checking account no
longer contained a large amount of cash was due to the fact that respondent had paid
the ten percent down payment from his checking account, thus depleting his cash
reserves (TR August 16, 2012 p. 48). Furthermore, in his electronic mail message of
June 30, 2009 (TFB Ex. 6), respondent affirmatively told Mr. Veilson, in response to
Mr. Veilson's inquiries concerning respondent's finances and liquidity, that he could
"easily increase" the cash balance in his checking account "at any time." Mr. Veilson
testified that this particular cooperative apartment board did not approve purchasers
who needed one hundred percent financing (TR August 16, 2012 p. 47) and that the
13
board wanted to ensure that a buyer would have the financial ability to maintain the
apartment after the purchase (TR August 16, 2012 p. 28). Had either Mr. Veilson or
the cooperative board been aware of the one hundred percent financing, further
inquiries of respondent would have been made (TR August 16, 2012 p. 118). No one
asked respondent if he was financing the down payment and respondent did not
volunteer this information. This Court has held that an attorney may be found guilty of
making a misrepresentation by omission of a material fact necessary to correct what
would be an obvious misapprehension by another party. The Florida Bar v. Webster,
662 So. 2d 1238, 1240 (Fla. 1995). Given the fact that respondent was aware that
obtaining one hundred percent financing was material to the cooperative board, he
should have brought this fact to the attention ofeither Mr. Veilson or the cooperative
board. Instead, he stood silent.
Respondent also caused a third party, Irene Stay, the ChiefFinancial Officer of
his law firm, to issue a letter to the cooperative board containing false statements.
Respondent asked Mr. Rothstein for a statement from the law firm attesting to
respondent's equity interest (TFB Ex. 8; TFB Ex. 11), an interest they both knew that
respondent did not possess. He gave Mr. Rothstein a proposed letter in an electronic
mail message for Ms. Stay to sign specifically stating that "Russell S. Adler is a 20%
equity Shareholder" in the law firm (TFB Ex. 11). Although Ms. Stay did not use this
14
exact letter authored by respondent, she signed a similar one that stated respondent
"holds the position of Shareholder." (TFB Ex. 12). The bar submits that respondent
gave this letter to the cooperative board with the expectation that it would rely upon it
in deciding whether to grant his application for purchase.
Respondent intentionally perpetrated a fraud and requested and caused an
employee ofhis law firm to make a fraudulent statement, solely to satisfy his desire to
buy a cooperative apartment in New York City for a good price. As a long time
practitioner, respondent understood the potential ramifications of his actions. He
simply believed that he would not be caught. Further, respondent's cavalier attitude
toward his failure to properly ensure his law firm's forms, that respondent created,
complied with the Rules Regulating The Florida Bar is troubling. This was not a mere
oversight. It was a long standing problem that affected every personal injury case
where respondent's law firm prepared a settlement statement. The lack of client harm
is not the issue. The issue is respondent's dereliction of his supervisory duties.
Respondent's avarice and lack ofattention to detail cast serious doubt on his fitness as
an attorney.
Based upon respondent's testimony and Memorandum ofRespondent Adler as
to Discipline, it is clear that respondent was merely sorry that he got caught. In his
testimony at the final hearing in this matter, respondent repeatedly attempted to justify
15
his misrepresentation to Mr. Veilson as to his equity ownership in his law firm as being
based on his belief that he was entitled to the equity shares. In his Memorandum as to
Discipline, respondent excused his deceit and misrepresentation as merely reflecting
that "he had equitable title but not legal title to the shares." This diminishing language
reflected an arrogance and complete lack ofunderstanding ofrespondent's obligation
to be truthful and not engage in engage in conduct involving dishonesty, fraud, deceit,
or misrepresentation as prohibited by rule 4-8.4(c) ofthe Rules Regulating The Florida
Bar.
In recent years, this Court has moved toward stronger sanctions for attorney
misconduct. The Florida Bar v. Herman, 8 So. 3d 1100, 1108 (Fla. 2009). Engaging in
conduct involving dishonesty, misrepresentation, fraud or deceit where the fraudulent
misrepresentations were not made to a court warrants a suspension. The Florida Bar v.
Schultz, 712 So. 2d 386, 388 (Fla. 1998). Clearly, a suspension is warranted here and
the issue to be determined is whether proof of rehabilitation is warranted given the
facts, mitigating factors and aggravating factors that are present. Respondent engaged
in a pattern of active misrepresentations in order to achieve his purchase of the
property he desired, intentionally omitted material information from his application
necessary for the board to make an informed decision concerning his application, and
caused a third person to make a misrepresentation. In addition, respondent, an
16
experienced practitioner who was responsible for supervising his law firm's tort
litigation department, negligently permitted his law firm to use a settlement statement
that clearly violated the Rules Regulating The Florida Bar.
In The Florida Bar v. Yonker, 37 Fla. Law Weekly S545 (Fla. Sept. 6, 2012), a
combined case against two attorneys, Mr. Yonker received a sixty day suspension for
engaging in conduct involving misrepresentation, solicitation, criminal acts, and the
direction ofa nonlawyer to engaged in solicitation. His partner, Mr. Winters, received
a ninety-one day suspension. Mr. Winters' only additional act of misconduct was his
use of a third attorney's name on the letterhead of their new firm despite being aware
the third attorney had not joined the new partnership. Both attorneys made secret plans
to leave their employing law firm and to open their own practice, taking with them
clients of their employing firm. The two attorneys, personally and through a former
nonlawyer employee of the firm, solicited clients prior to leaving the firm, stole the
firm's client files, and made misrepresentations to the firm's clients. This Court found
the attorneys' personal use of their former employer's client files constituted acts of
criminal theft. Respondent's actions similarly encompassed dishonest misconduct for
the purpose of personal gain. Unlike Mr. Winters and Mr. Yonker, however,
respondent did not engage in any criminal misconduct. In mitigation ofMr. Yonker's
misconduct, however, was the fact that ten years passed between the time the
17
misconduct occurred and the bar's disciplinary proceedings were able to go forward.
During the intervening time, Mr. Yonker had no further disciplinary matters and,
similar to respondent, had no prior disciplinary record. Mr. Winters did have a
disciplinary history, unlike respondent. The report ofreferee for the case indicated that
Mr. Winters received an admonishment for minor misconduct in 2005.
In The Florida Bar v. Renke, 977 So. 2d 579 (Fla. 2008), this Court approved a
conditional guilty plea for consent judgment for a thirty day suspension from the
practice of law, with automatic reinstatement, for making misrepresentations in his
campaign brochures and materials and for accepting $95,800.00 in unlawful campaign
contributions. Judge Renke was removed from the bench. Judge Renke had more
mitigating factors present than in respondent's case. Judge Renke had no prior
disciplinary record, enjoyed a good character or reputation, there was an unreasonable
delay in the disciplinary proceedings, there was the imposition of other penalties or
sanctions, and he was remorseful. Similarly, respondent has no prior disciplinary
history and expressed remorse. In aggravation, Judge Renke, similar to respondent, had
a dishonest or selfish motive and there were multiple offenses.
In The Florida Bar v. Brown, 905 So. 2d 76 (Fla. 2005), an attorney was
suspended for six months, with proofofrehabilitation required prior to reinstatement,
for intentionally double pledging a certificate ofdeposit as security. A mechanic's lien
18
had been filed against property Mr. Brown was developing through a company he
owned with his wife and that was unrelated to his law practice. Mr. Brown initially
represented to a licensed surety company he contacted about issuing a mechanic's lien
discharge bond that a particular certificate ofdeposit would serve as full cash collateral
for the bond. Mr. Brown represented himself to the surety company as a licensed
attorney and, based on his representations, it issued the bond. Within one week, Mr.
Brown made a second pledge of the same certificate of deposit in connection with a
security agreement for the benefit of his law firm. Mr. Brown intentionally kept the
second pledge of the collateral a secret from the surety company. The security
agreement provided that his law firm would have priority over all other claims of
interest to the certificate ofdeposit by any other creditors ofhis development company.
Ultimately, the surety company suffered a loss as a result of the judgment entered in
the breach of contract case that was filed and Mr. Brown's law firm benefitted at the
expense ofthe surety company. This Court found that an attorney's ethical obligation
of honesty was not bounded by contractual obligations and that Mr. Brown's
misrepresentations were intentional. In aggravation, Mr. Brown had a prior disciplinary
history, had a selfish motive, had substantial experience in the practice of law, and was
indifferent to making restitution to the surety company. In mitigation, he enjoyed a
good reputation and had a lengthy and distinguished record of charitable and
19
philanthropic involvement in the community as well as having provided significant
amounts legal pro bono work. Although fewer aggravating factors were present in
respondent's case, respondent's actions were similar to Mr. Brown's in that they were
intentional. Both respondent and Mr. Brown were experienced practitioners who
understood their ethical obligations as members of The Florida Bar.
In The Florida Bar v. Brown, 790 So. 2d 1081 (Fla. 2001) an attorney was
suspended for ninety days, with automatic reinstatement, for engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation, by assisting his client in a
campaign contribution reimbursement scheme. There were significantly more
mitigating factors present in Mr. Brown's case than in respondent's. Mr. Brown had no
prior disciplinary record, he made a full and free disclosure, he was cooperative, he
suffered additional negative consequences, he exhibited "deep remorse," and he had an
excellent reputation in his community. Unlike respondent, however, Mr. Brown's
misconduct involved a client.
In The Florida Bar v. Corbin, 701 So. 2d 334 (Fla. 1997), an attorney received a
ninety day suspension, with automatic reinstatement, for misrepresenting material facts
to the court by submitting an affidavit he knew was false and for misleading the bar by
making a misstatement in his initial response to the bar's investigative inquiry. Unlike
respondent, Mr. Corbin's misrepresentation was not an ongoing pattern of conduct.
20
Similar to respondent, however, Mr. Corbin's misconduct was designed to benefit
himself.
In The Florida Bar v. Nuckolls, 521 So. 2d 1120 (Fla. 1988), an attorney was
suspended for ninety days, with automatic reinstatement, for his involvement in a
scheme to fraudulently obtain one hundred percent financing by misrepresenting the
purchase price of condominium units. Mr. Nuckolls represented a real estate
partnership that was selling condominium units. Mr. Nuckolls prepared closing
documents reflecting a significantly higher purchase price for the units than the sales
contracts showed. Lenders made mortgage loans based in part on Mr. Nuckolls'
misrepresentations. Additionally, Mr. Nuckolls handled a real estate transaction where
he was acting as a land trustee for the purchaser where he agreed to close the sale
under terms that were beneficial to the sellers who happened to be his partners and
clients. This Court found Mr. Nuckolls' deliberate attempt to perpetrate a fraud on
lenders to be serious misconduct. In mitigation, Mr. Nuckolls had no prior disciplinary
history and served a number of years in public office. Mr. Nuckolls' misconduct was
more serious than respondent's but it occurred during a time when less harsh
disciplinary sanctions were being imposed.
In The Florida Bar v. Siegel, 511 So. 2d 995 (Fla. 1987), two cases against two
different attorneys were consolidated. A ninety suspension, with automatic
21
reinstatement, was imposed where the two attorneys deliberately misrepresented facts
to a lender in order to secure full financing for the purchase of a building intended as
their law office. Similar to Mr. Nuckolls' case, although the misconduct was
considered to be serious in nature, the discipline was a reflection of the time period in
which it was imposed.
In The Florida Bar v. Shapiro, 456 So. 2d 452 (Fla. 1984), an attorney received a
ninety day suspension, with automatic reinstatement, and a two year period of
probation for filing a sworn motion to dismiss criminal charges which contained false
statements and a forged client signature. The false statements led to a perjury charge
which was dropped after the client obtained new counsel. As a condition ofprobation,
Mr. Shapiro was ordered to retake the ethics portion ofThe Florida Bar examination.
Unlike respondent, Mr. Shapiro filed a false document with the court. Were his
misconduct to have occurred today, it appears a harsher sanction may have been
warranted.
This Court's move in recent years toward stronger sanctions for attorney
misconduct indicates a ninety-one day suspension with proofofrehabilitation would be
an appropriate sanction. Herman, 8 So. 3d at 1108, The Florida Bar v. Rotstein, 835
So. 2d 241, 246 (Fla. 2003). Respondent's misconduct is most similar to that engaged
in by Mr. Winters in The Florida Bar v. Yonker, 37 Fla. Law Weekly S545 (Fla. Sept.
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6, 2012) and calls for an enhancement of the discipline set forth in the case law cited
above. Respondent intentionally engaged in an active misrepresentation for selfgain in
order to achieve his purchase of the property he desired at a good price. In addition,
respondent, an experienced practitioner who was responsible for supervising his law
firm's tort litigation department, negligently permitted his law firm to use a settlement
statement that violated the Rules Regulating The Florida Bar. Conduct such as that
engaged in by respondent taints how the legal profession is viewed by members ofthe
public and by people who seek the professional services of an attorney, as evidenced
by the following statements from this Court.
In The Florida Bar v. Bennett, 276 So. 2d 481, 482 (Fla. 1973), this Court
stated: "Some may consider it 'unfortunate' that attorneys can seldom cast off
completely the mantle they enjoy in the profession and simply act with simple business
acumen and not be held responsibleunder the high standards ofour profession. It is not
often, ifever, that this is the case. In a sense, 'an attorney is an attorney is an attorney',
much as the military officer remains 'an officer and a gentleman' at all times." This
Court further stated in Bennett at 482 , that attorneys "must be on guard and act
accordingly, to avoid tarnishing the professional image or damaging the public which
may rely upon their professional standing." In Brown, 905 So. 2d at 82, this Court
emphasized that "attorneys must be and are held to the highest ofethical standards and,
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unlike non-attorney citizens, are subject to discipline for a breach ofthose standards."
In The Florida Bar v. Valentine-Miller, 974 So. 2d 333, 338 (Fla. 2008), this Court
stated that "lawyers are required to have high ethical standards because members ofthe
public are asked to trust lawyers in their greatest hours of need. Without such
standards, the entire legal profession would be in jeopardy as public trust would
dissipate."
Discipline must serve three purposes: it must protect the public, be fair to the
respondent and be severe enough to deter other attorneys from committing similar
misconduct. The Florida Bar v. Shoureas, 892 So. 2d 1002 (Fla. 2004); The Florida
Bar v. Lord, 433 So. 2d 983 (Fla. 1983). A ninety-one day suspension satisfies the
three purposes of discipline. It serves to protect the public by ensuring respondent
proves rehabilitation prior to being reinstated to the practice oflaw. This is particularly
important in light ofrespondent's position in his Memorandum as to Discipline that his
actions in attempting to gain approval by the cooperative apartment board for his
purchase was "commonplace occurrence" which did not reflect adversely on his fitness
to practice of law, implying that many persons attempting to purchase a cooperative
apartment in New York Citymake misrepresentations concerning financial status. The
proposed disciplinary sanction is fair to respondent in that it imposes a reasonable
sanction for his misconduct while encouraging rehabilitation. Most importantly, it
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serves as a deterrent to other attorneys who might be inclined to engage in similar
misconduct in connection with purchasing property. Further, in fairness to the
members of the bar, who have not engaged in misconduct, the respondent should be
taxed the costs ofthis proceeding. Accordingly, the appropriate disciplinary sanction to
impose against respondent is a ninety-one day suspension requiring he show proofof
rehabilitation before he is reinstated to the practice of law and payment of costs.
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CONCLUSION
WHEREFORE, The Florida Bar prays this Honorable Court will review the
referee's findings of fact and recommendation of a thirty day suspension with
automatic reinstatement to the practice of law and instead impose as a sanction a
ninety-one day suspension with proofof rehabilitation required prior to reinstatement
and payment of costs currently totaling $4,891.35.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and seven (7) copies ofThe Florida Bar's
Initial Brief have been sent by regular U.S. Mail to the Clerk of the Court, The
Supreme Court of Florida, Supreme Court Building, 500 South Duval Street,
Tallahassee, Florida, 32399-1927; a copy of the foregoing has been furnished by
regular U. S. Mail to Respondent's Counsel, Fred Haddad, at Fred Haddad, P. A., 1
Financial Plaza, Suite 2612, Fort Lauderdale, Florida 33394-0061 and via electronic
mail at [email protected]; with a copy furnished to Staff Counsel of The
Florida Bar at his designated e-mail address [email protected] on this /M day
of December, 2012.
Ke neth H. P. Bryk, Ba CounselThe Florida BarOrlando Branch OfficeThe Gateway Center1000 Legion Place, Suite 1625Orlando, Florida 32801-1050(407) 425-5424Florida Bar No. [email protected]
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CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN
Undersigned counsel does hereby certify that this Brief is submitted in 14 pointproportionately spaced Times New Roman font, and that this briefhas been filed by e-mail in accord with the Court's order of October 1, 2004. Undersigned counsel doeshereby further certify that the electronically filed version ofthis briefhas been scannedand found to be free of viruses, by Norton AntiVirus for Windows.
enneth H. P. Bryk, Bar Counsel
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