IN THE SUPREME COURT OF FLORIDA

ANSWER BRIEF OF PETITIONER

Supreme Court Case No.: 04-650

TFB No.: 2004-11,461 (20A) (HRE) NADEGE ELLIOTT, ESQ. THE FLORIDA BAR Respondent Petitioner PO Box 150773 Barry W. Rigby Cape Coral, FL 33904 650 Apalachee Pkwy. (239) 573-3632 Tallahassee, FL 32399

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TABLE OF CONTENTS PAGE TABLE OF CONTENTS…………………………………………………………...i TABLE OF AUTHORITIES………………………………………………….…..iii SYMBOLS AND REFERENCES………………………………………………...iv STATEMENT OF THE CASE…………………………………………………….1 STATEMENT OF THE FACTS…………………………………………………..2 SUMMARY OF THE ARGUMENT……………………………………………...3 ARGUMENT………………………………………………………………………5

1. THE REFEREE CORRECTLY FOUND THAT PETITIONER ESTABLISHED, BY CLEAR AND CONVINCING EVIDENCE, THAT SHE IS FIT TO RESUME THE PRACTICE OF LAW.

A. Referee makes a finding of fact that Petitioner is in strict compliance

with disciplinary order………………………………………………..5

B. Referee made a finding of fact that Petitioner provided evidence of unimpeachable character and moral standing in the community……………………………………………………………6

C. Referee finds that the ample evidence in the record attest to

Petitioner’s reputation for professional ability……………………….8

D. Referee made a finding of fact that Petitioner holds no malice or ill feeling…………………………………………………………………9

E. Referee makes a finding of fact that Petitioner offers corroborated

personal assurances………………………………………………….11

F. Restitution of funds: Not applicable………………………………...12

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G. Referee finds that Petitioner shows positive actions showing rehabilitation………………………………………………………...12

CONCLUSION…………………………………………………………………...13 CERTIFICATE OF SERVICE……………………………………………………14 CERTIFICATE OF COMPLIANCE OF FONT AND STYLE…………………..15

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TABLE OF AUTHORITIES

CASES PAGE The Florida Bar vs. Dunagan, 775 So.2d 969 (Fla. 2000)……………………3, 4, 5 In re Dawson, 131 So.2d 472 (Fla. 1961)………………………………………….3 The Florida Bar vs. Grusmark, 662 SO.2d 1235 (Fla. 1995)………………………5 Florida Bar in re Hurtenbach, 157 So.2d 348 (Fla. 1946)……………………….11 Florida Bar re. Janssen, 643 So.2d 1065, 1067 (Fla. 1994)……………………….3 The Florida Bar in re Inglis, 471 So.2d 38 (Fla. 1985)……………………………8 RULES REGULATING THE FLORIDA BAR Rule 3-7.10(f)(3)(A)-(G)……………………………………………………...1, 3, 5 Rule 3-7.10(f)(3)……………………………………………………………………5 Rule 3-7.10(f)(3)(B)………………………………………………………………..6 Rule 3-7.10(f)(3)(C)………………………………………………………………..8 Rule 3-7.10(f)(3)(D)………………………………………………………………10 Rule 3-7.10(f)(3)(E)……………………………………………………………….12 Rule 3-7.10(f)(3)(F)……………………………………………………………….13 Rule 3-7.10(f)(3)(G)………………………………………………………………13

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SYMBOLS AND REFERENCES In this Answer Brief, the Florida Bar, Petitioner in these proceedings, will be

referred to as “Florida Bar” or “the Bar.” Nadege Elliott, the Respondent of this

matter, will be referred as “Ms. Elliott” or “Petitioner.”

“TR” will refer to the transcript of the proceedings of the final hearing on

the Petition for Reinstatement held on August 23 and 24, 2004.

The Report of the Referee will be referred to or “RR.”

Exhibits will be referred as “TFB Exh.” for the Florida Bar’s exhibits and

“Pet exh.” for reference of exhibit by the Petitioner.

The Rules regulating the Florida Bar will be referred to as “Rule” or

“Rules.”

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STATEMENT OF THE CASE

Petitioner was suspended from the practice of law effective July 25, 2003 for

a duration of six (6) months as a result of a plea of no contest for the misuse of a

notary stamp, failure to adequately maintain trust account records and sending

inflammatory e-mail to a third party. Soon after the termination of her suspension,

Petitioner filed a Petition for Reinstatement. A final hearing on the Petition for

held on August 23 and 24, 2004. Petitioner presented nine (9) witnesses, including

Petitioner. The Bar presented one rebuttal witness, not bearing any testimony upon

the issue of Reinstatement. Upon hearing witnesses for the Petitioner, the Referee

found that Petitioner met, by clear and convincing evidence, all the requirements as

set forth in 3-7.10(3)(A)–(G), Rules Regulating the Florida Bar. The Florida Bar is

appealing the Referee’s recommendation for reinstatement.

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STATEMENT OF THE FACTS

Petitioner was suspended from the practice of law for six (6) months. Upon

the termination of the period of suspension, Petitioner filed a Petition for

Reinstatement. The Florida Bar did not file and Answer or an objection to the

Petition. The matter proceeded to final hearing where counsel for the Florida Bar

stated on the records that the Bar had no objection to the Petition. Petitioner

introduced eight (8) independent witnesses to testify as to her character, her

professional ability and her fitness to resume the practice of law. Additionally,

Respondent/Petitioner introduced and the Referee accepted into evidence letter

from other attorneys in the area attesting to Respondent/Petitioner’s fitness and

professional ability.

The Bar presented one rebuttal witness in an attempt to disprove Petitioner’s

testimony that she apologized to said counsel and the third party. The Referee

rejected the testimony of the Bar’s witness. TR 274.

The Referee made finding of facts, stating that the substantial evidence in

the record support that Petitioner, by clear and convincing evidence, has met the

burden of proving her rehabilitation and therefore recommended reinstatement.

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SUMMARY OF THE ARGUMENT The Referee filed his report finding that Petitioner has proven, by clear and

convincing evidence, the required elements of rehabilitation as set out in In re

Dawson, 131 So.2d 472 (Fla. 1961). “A Referee’s findings of fact carry a

presumption of correctness that should be upheld unless clearly erroneous or

without support in the record.” Florida Bar re. Janssen, 643 So.2d 1065, 1067

(Fla. 1994). The Florida Bar has failed to demonstrate that the Referee’s report is

erroneous, unlawful or unjustified. In an attorney reinstatement proceeding, the

party seeking review of the referee’s recommendation has the burden to

demonstrate that the report is erroneous, unlawful or unjustified. The Florida Bar

vs. Dunagan, 775 So.2d 959 (Fla. 2000). Absent of showing good cause, this

Court should not review the Referee’s finding of fact that is the basis of the

recommendation for reinstatement.

The Referee found that, as required by 3-7.10(3)(A)-(G), Rules Regulating

the Florida Bar, Petitioner proved by clear and convincing evidence that she is

entitled to resume the practice of law. Firstly, the Bar stipulated that Respondent

fulfilled the obligations of her suspension as required by 3-7.10(3)(A) Rules

Regulating the Florida Bar. The Bar further stipulated that it had no objection to

the Petitioner’s request for reinstatement. TR 23. The Bar only filed a Notice of

Appearance and filed no further document objecting to the Petition for

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Reinstatement. Lastly, the Bar presented no evidence refuting Petitioner’s

evidence supporting her petition for reinstatement.

Respondent presented eight (8) witnesses including former clients, a former

assistant, members of the clergy and other religious affiliation as well as letters of

recommendation from other attorneys in the locality, which are part of the record.

The Bar neither presented witnesses to rebut Petitioner’s witnesses nor presented

its own witnesses to disprove Petitioner’s rehabilitation.

A repeat of the previous proceedings that led to the suspension is not and

must not be considered as evidence to deny reinstatement. The substantial

evidence in the record supports the Referee’s holding that Petitioner should be

reinstated to the practice of law. As to referee’s finding of fact in an attorney

reinstatement proceeding, they should be upheld unless clearly erroneous or

without support in the record. Dunagan at 961. Therefore, the recommendation

of the Referee must be approved.

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ARGUMENT

I. THE REFEREE CORRECTLY FOUND THAT PETITIONER ESTABLISHED, BY CLEAR AND CONVINCING EVIDENCE, THAT SHE IS FIT TO RESUME THE PRACTICE OF LAW.

In a reinstatement proceeding, the party seeking review of the referee’s

recommendation has the burden to show that the report is erroneous, unlawful or

unjustified. The Florida Bar vs. Grusmark, 662 So.2d 1235 (Fla. 1995). As to

referee’s finding of fact in an attorney reinstatement proceeding, they should be

upheld unless clearly erroneous or without support in the record. The Florida Bar

vs. Dunagan, 775 So.2d 959 (Fla. 2000). Based on Petitioner’s own testimony,

along with the testimonies of Petitioner’s witnesses, the Referee agrees that

Petitioner has met, by clear and convincing evidence, the burden of establishing

Petitioner’s fitness to resume the practice of law as required by 3-7.10(3)(A)-(G).

A. Referee makes a finding of fact that Petitioner is in strict

compliance with disciplinary order.

The Referee accurately finds that Petitioner has satisfied the requirement of

3-7.10(3)(A), Rules Regulating the Florida Bar, by clear and convincing evidence

and by concession of the Bar. Petitioner presented, and the Bar conceded, that

Petitioner is in strict compliance with the specific conditions of the disciplinary,

judicial, administrative or other order, satisfying the primary requirements of Rule

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3-7.10(f)(3), Rules regulating the Florida Bar. The Referee specifically stated: “…

I'll find that Ms. Elliott has strictly complied with all of the impositions that were

placed upon her in her criminal case in which she was placed on probation;

probation was terminated early after she had successfully completed all of the

conditions of her probation, and I will find that she has been in strict compliance

with the conditions of the instant recommendation and order of the Supreme Court

concerning this immediate matter. She has engaged the services of Pedro Pizarro,

who has been employed to continually and constantly review her trust account

records on a monthly basis, he's doing that and he's doing that through, so far as I

know, even today. So that criterion has been established in favor of Petitioner.”

TR 262.

Since the Bar concedes that Petitioner has met this burden, and based on the

Referee’s finding of fact that Petitioner has met this burden by clear and

convincing evidence, this ruling should not be disturbed.

B. Referee made a finding of fact that Petitioner provided

evidence of unimpeachable character and moral standing in the community.

The Referee finds that Petitioner, by clear and convincing evidence, has

unimpeachable character and moral standing in the community, satisfying the

requirement of 3-7.10(3)(B), Rules Regulating the Florida Bar. At Final Hearing,

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Petitioner presented eight (8) witnesses who testified as to her character and moral

standing in the community. After careful consideration of each witness’s

testimony, the Referee finds that Petitioner’s witnesses “are people who really

have no particular interest in these matters other than to articulate and share with

me what their experiences have been with Ms. Elliott and what their heartfelt and

honest impressions of Ms. Elliott's character and moral standing is; and the

witnesses have all testified that she is a person of high moral character personally,

and also of high moral standing in the community.” TR 263-264. Each witness

testified that Petitioner was a person of high moral character, of honesty and

integrity. Also, each witness presented testimonial evidence that Petitioner’s good

moral character is established in the community and is well respected in the

community. Lloyd Sawyer and Tonya Bibb, former client of Petitioner, testified

that Petitioner was a lawyer of her word, performed work to their satisfaction and

will hire Petitioner again. TR 30, 94, 95. Other witnesses testified that they knew

others who petitioner represented and heard high praise of Petitioner’s services.

The Bar presented no witnesses to refute these testimonies or present contrary

evidence as such.

The Referee’s finding of fact as to Petitioner’s unimpeachable character and

high moral standing in the community cannot be disturbed. The Bar’s argument

that the record does not support the Referee’s finding of fact is flawed. The

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Referee, having heard and observed the witnesses, is in a better position to judge

the credibility of these witnesses and the veracity of their testimonies. Time and

again, this Court has held that a Referee’s finding of fact will not be disturbed.

C. Referee finds that the ample evidence in the record attest

to Petitioner’s reputation for professional ability. The Referee finds that Petitioner has shown, by clear and convincing

evidence that Petitioner has a good reputation for professional ability, therefore

satisfying the requirement of 3-7.10(3)(C), Rules Regulating the Florida Bar.

Petitioner presented witnesses and letters from others in the community that attest

to Petitioner’s professional ability. Two of witnesses are former clients and the

other assisted the Petitioner in her office. The former clients testified that they

were very satisfied with the representation, will recommend Petitioner to others

and will engage the services of Petitioner in the future. TR 30, 94. Letters from

other attorney in the community are part of the records, where these attorneys

attest that Petitioner “possesses all the personal attributes of character and

competence expected of a member of the Bar.” This Court holds that when the

period of suspension is only a few months, continued professional ability can be

shown by competent testimony showing reputation for professional ability.” The

Florida Bar in re Inglis, 471 So.2d 38 (Fla. 1985).

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Also, The Referee, having been present in the courtroom, was in a better

position to observe the witnesses and their demeanor and ascertain the veracity of

their testimonial. The Referee weighted the witnesses’ testimonies and finds that

based on the evidence presented Petitioner has met, with clear and convincing

evidence, “that [Petitioner] has a good reputation for professional ability. TR 275.

Also, other letters of recommendation were made part of the record, where other

attorneys who have been associated with Petitioner, attested to Petitioner’s

professional ability. More specifically, the Referee holds that “the evidence has

established that she has a good reputation for professional ability … and we

actually have some evidence, one from Vernon Fairchild, who is an attorney, who

said that he had been involved with her in prior domestic relations cases and he

found her competent to practice, she articulated her client's position in a

professional manner, seemed to have a sufficient grasp of the law to be a

meaningful advocate for her client, she was also ‘courteous to me as opposing

counsel and showed not the slightest disrespect for the Court. I think that the

evidence has established that she has a good reputation for professional ability.”

TR 275-277. Emphasis added. The Referee’s finding of facts, as well as the

ample evidence in the record, demonstrates Petitioner to have professional ability.

The Bar fails to show this Court that the Referee’s finding of fact as to Petitioner’s

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professional ability is clearly erroneous, not supported by the record, or is

unjustified. Therefore, the Referee’s finding should be upheld.

D. Referee made a finding of fact that Petitioner holds no

malice or ill feeling.

The Referee made a clear and unambiguous finding of fact that Petitioner

has demonstrated, by clear and convincing evidence, that Petitioner lacks malice or

ill feeling towards those who were compelled to bring about the disciplinary

proceedings. The Referee finds that Petitioner has met the requirement of 3-

7.10(3)(D), Rules Regulating the Florida Bar. All of Petitioner’s witnesses

testified that they are aware of the circumstances surrounding Petitioner’s

suspension and to their knowledge Petitioner blames herself, has never heard

Petitioner harboring any ill feeling or malice toward those on the other side of

these proceedings and hold no malice toward anyone else associated with the

matter. One witness, Lloyd Sawyer, does not recall the circumstances of the

suspension because he did not want to know the details of the cause of the

suspension. Mr. Sawyer testified that Petitioner has attempted to tell him the cause

of the suspension but was not interested. TR 30. Mr. Sawyer also testified that he

was aware that Petitioner was “having troubles with the Bar” and never expressed

any malice or ill feeling toward the Bar or anyone else.

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Petitioner also testified that she holds herself responsible for the cause of her

suspension and blames no one. The Referee finds that the witnesses, including the

testimony of the Petitioner were credible. The Referee states: “I do believe that

she [Petitioner] has a lack of malice and ill feeling towards those who, by duty,

were compelled to bring about the judicial and other proceedings …” TR 275. The

Referee‘s finding of fact supported by ample evidence in the record should not be

disturbed.

On the one hand, the Bar states that it has no objection to Petitioner’s

petition. At Final Hearing, the Bar presented no evidence to refute any of the

evidence offered by Petitioner that Petitioner lacks ill feeling or malice toward

those who were compelled to bring about the disciplinary proceeding. On the

other hand, the Bar attempted to re-try the same issue of malice and ill feeling,

which were previously brought up and considered by the referee in the original

proceedings. The purpose of proceeding for reinstatement is not to retry Petitioner

for misconduct, which brought about the suspension, but to determine whether

Petitioner has been sufficiently rehabilitated in conduct and in character. Florida

Bar in re Hurtenbach , 157 So.2d 348 (Fla. 1946).

The Referee considered and made specific finding of facts that Petitioner’s

testimony and that of the witnesses evidences a lack of malice or ill feelings. TR

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275-276. The evidence in the record is ample and supports the Referee’s finding

of fact and such finding should not be disturbed.

The Bar failed to object to the Petition and offered no witnesses to rebut the

Petition for Reinstatement. The Bar presented one rebuttal witness, Rana Holtz, an

attorney who represented the third party to whom the e-mails were sent, and who

testified that she does not recall Petitioner apologizing to her and to the third party

through her for sending the e-mails. The Referee rejected the testimony of the

Bar’s witness, stating “I have the impression that she [Petitioner] is sincere when

she says that she apologizes for the e-mails and regrets they were sent, when she

says that she understands they never should have been sent.” TR 274.

Additionally, the Referee correctly finds that this was an issue in the original

matter, which was considered and weighted in making findings of fact and

recommendations to the Supreme Court in regard to what the sanctions that should

be imposed upon Petitioner. TR 261, 275. Again, the Bar fails to offer proof that

the Referee’s finding of fact is clearly erroneous and not supported by the record.

The Referee’s finding of facts should not be disturbed.

E. Referee makes a finding of fact that Petitioner offers

corroborated personal assurances. The Referee explicitly finds Petitioner has satisfied the requirements of 3-

7.10(3)(E), Rules Regulating the Florida Bar, by clear and convincing evidence.

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The Referee weighted Petitioner’s and her witnesses’ testimonies to be honest and

credible and states that Petitioner has offered “personal assurance supported by

corroborating evidence, the desire and intention to conduct one's self in an

exemplary fashion in the future, … and the corroboration is in the form of these

letters and folks who took the time out of their lives to come down and testify on

behalf of Ms. Elliott.” TR 277. Having clearly stated a finding of facts, the

Referee’s conclusion should not be disturbed.

F. Restitution of funds does not apply. G. Referee finds that Petitioner shows positive actions

showing rehabilitation. The Referee made specific finding of facts that Petitioner has, by clear and

convincing evidence met the requirement of 3-7.10(3)(G) in taking positive actions

showing rehabilitation through her occupation, religion, or community or civic

services. The Referee explicitly found that “she has of course, had Mr. Pizarro

engaged for the trust fund issues. She's been going through the informal

counseling regarding anger issues through her church. She is very involved in her

community and her church, and she has been involved in a very positive way,

according to the evidence, in community and civic services and mentoring children

through the bible studies and otherwise.” TR 277. Based on the Referee’s specific

finding of facts, his ruling should not be disturbed.

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CONCLUSION

The Referee has made specific and unambiguous findings of fact that

Petitioner has satisfied, by clear and convincing evidence and supported by the

record, that Petitioner has demonstrated that she is fit to resume the practice of law.

The Referee, after hearing testimonies on behalf of Petitioner, weighted and

considered each testimony, including that of Petitioner’s, and after having

considered letters from attorneys and others in the community attesting to

Petitioner’s character, integrity, moral standard and professional ability, and being

therefore fully advised of the ample evidence in the record, made a finding of fact

that Petitioner has satisfied each required element of 3-7.10(3)(A)-(G), Rules

Regulating the Florida Bar. The Referee made detailed, clear, concise and

meticulous findings of fact that Petitioner is rehabilitated and is fit to resume the

practice of law. This Court has consistently held that a finding of fact of a Referee

will not be disturbed unless the opponent demonstrates that the finding of fact is

erroneous, illegal or unjustified. The ample evidence in the record support the

Referee’s findings of fact and recommendation for reinstatement. This Court

should approve the recommendation for reinstatement.

Respectfully submitted,

_______________________ Nadege Elliott, Esquire Petitioner

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven (7) copies of this brief

have been provided via regular US mail to The Honorable Thomas D. Hall, Clerk

of the Florida Supreme Court, at 500 South Duval Street, Tallahassee, FL 32399-

1927; a true and correct copy via regular US mail to Stephen C. Whalen, Assistant

Staff Counsel at the Florida Bar, at 5521 W. Spruce Street, Suite C-49, Tampa, FL

33607, a true and correct copy via regular US mail to John A. Boggs, Staff

Counsel for the Florida Bar at 651 E. Jefferson Street, Tallahassee, FL 32399-

2300, this 13th day of December, 2004.

_______________________ Nadege Elliott, Esq. Petitioner PO Box 150773 Cape Coral, FL 33915 (239) 573-3632 FBN: 155535

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CERTIFICATIONOF FONT SIZE AND STYLE CERTIFICATION OF VIRUS SCAN

The undersigned does hereby certify that this brief is submitted in 14 point

proportionally spaced Times New Roman font, and in accordance with the

Administrative Order No. AOSC04 has been submitted via e-mail to e-

file@flcourts.org and has been found to be free of viruses by McAfee Antivirus for

Windows.

_______________________ Nadege Elliott, Esq. Petitioner PO Box 150773 Cape Coral, FL 33915 (239) 573-3632 (239) 573-1470 (F) FBN: 155535