IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court Case Nos. SC06-2080 and SC08-69 Complainant, v. The Florida Bar File Nos. 2006-70,751(11A) MARTIN EDWARD DOYLE, 2008-70,669(11A-OSC) Respondent. /

______________________________________________

ON PETITION FOR REVIEW _______________________________________________

ANSWER BRIEF OF THE FLORIDA BAR

RANDI KLAYMAN LAZARUS Bar Counsel - TFB #360929 The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida 33131 (305) 377-4445

KENNETH LAWRENCE MARVIN Staff Counsel - TFB #200999 The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5731

JOHN F. HARKNESS, JR. Executive Director - TFB #123390 The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300

(850) 561-5600

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TABLE OF CONTENTS PAGE TABLE OF CONTENTS ....................................................................... i TABLE OF AUTHORITIES ................................................................. ii INTRODUCTION................................................................................... iii STATEMENT OF THE CASE AND OF THE FACTS ........................ 1-16 SUMMARY OF ARGUMENT .............................................................. 17 ISSUES ON APPEAL…………………………………………………. 18 ARGUMENTS ....................................................................................... 19-29

I THE REFEREE’S FINDINGS OF FACT ARE SUPPORTED BY

COMPETENT SUBSTANTIAL EVIDENCE (UNDERLYING CASE NUMBER SC06-2080)

II

THE REFEREE’S FINDINGS OF FACT ARE SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE

(ORDER TO SHOW CAUSE/CONTEMPT CASE NUMBER SC08-69)

III THE RESPONDENT WAS AFFORDED AN OPPORTUNITY TO

PRESENT MITIGATING EVIDENCE AS TO THE DISCIPLINE TO BE IMPOSED

CONCLUSION ...................................................................................... . 30 CERTIFICATE OF SERVICE ................................................................ 31 CERTIFICATE OF TYPE, SIZE, & STYLE…………………………. .. 31 INDEX TO APPENDIX………………………………………………… 32

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TABLE OF AUTHORITIES CASES PAGE The Florida Bar v. Dubow, 636 So.2d 1287 (Fla. 1994)…………………………………… 27 The Florida Bar v. Furman, 451 So.2d 808 (Fla. 1984)……………………………………… 29 The Florida Bar v. Mogil, 763 So.2d 303 (Fla. 2000)……………………………………… 29 The Florida Bar v. Senton, 882 So.2d 997 (Fla. 2004)……………………………………… 27 The Florida Bar v. Varner, 33 Fla. L. Weekly S731 (Fla. September 25, 2008)……………. 19 The Florida Bar v. Weed, 559 So.2d 1094 (Fla. 1990)…………………………………….. 29

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INTRODUCTION

The Florida Bar utilized the same designations as set forth in the

respondent’s Preliminary Statement with the following additions:

Martin Edward Doyle may be referred to as “Martin Doyle”, “Martin E.

Doyle” or “Doyle”.

The Corrected Findings, Conclusions and Recommendation of Referee dated

June 6, 2008 in case number SC06-2080, may be referred to as Report of Referee

or RR and the appropriate page number, as well as A-1 and the appropriate page

number.

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STATEMENT OF THE CASE AND OF THE FACTS

The following facts should be considered in addition to those set forth in the

respondent’s Initial Briefs.

On August 14, 2006, The Florida Bar filed its Petition for the Emergency

Suspension of Martin Doyle. This Court emergency suspended Doyle on August

24, 2006. The Bar filed its substantive complaint on October 23, 2006. On

January 10, 2008, The Florida Bar filed its Petition for Order to Show Cause in

which it alleged that Doyle was practicing law while under an order of emergency

suspension. After multiple continuances were sought by the respondent, the final

hearing was held on April 30, May 1, May 2, and May 5, 2008 during which the

underlying case and the contempt matter were heard.

Bart Sacher was the Bar’s first witness. He is the founding partner and

president of Sacher, Zelman. Sacher hired Martin Doyle in February of 2001.

Doyle was given the designation “of counsel”. He was a full time lawyer

practicing law only through the Sacher, Zelman firm. Doyle received a salary and

benefits and extra benefits for his out-of-town wife and family. Tr., Day 1, pp. 23,

25. When he first began his employ, Doyle was involved in two businesses which

were winding down. They were Skytech and EZ Green. Occupying any officer or

director position in any company was a breach of the firm’s policies. The firm’s

malpractice carrier requires written disclosure of any of those types of affiliations.

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Tr., Day 1. pp. 21, 26-27. Doyle did not advise the firm that he was the managing

director of Kimberlyn Investments. Tr., Day 1, p. 30, Bar’s Ex. 2.

The Sacher, Zelman firm was sued by Pedro Saralegui in April of 2004. He

alleged that Doyle and the firm took money from him on false pretenses and stole

the money. Saralegui requested its return. Saralegui was never a client of the

firm. Doyle told Sacher that Mr. Saralegui was mistaken, that he had done nothing

wrong and that it was a client dispute. Doyle did not inform Sacher that monies

paid back to Saralegui were from other victims, Burns and Zalcberg. The lawsuit

was handled through their malpractice carrier by attorney Rob Klein. Tr., Day 1,

pp. 30-33, Bar’s Ex. 3. Sacher testified concerning the agreement that Saralegui

executed dated February 11, 2003 with Martin E. Doyle, of Sacher, Zelman acting

as trustee. Sacher was not aware that Doyle was holding himself out as a trustee.

The firm unequivocally prohibited any employee of the firm from acting as escrow

agent or trustee. Sacher personally told Doyle of the prohibition, which was also

set forth in the firm’s policy manual. The document that Saralegui signed also

stated that the client and the trustee assumed full responsibility for the repayment

of $280,000 paid by Saralegui. Sacher was not aware of the inclusion of that

language in the Saralegui agreement, nor would he or his partners authorize its

inclusion. Sacher was also unaware that his firm’s trust account was being used to

facilitate the Saralegui transaction. Tr., Day 1, pp. 34-38, Bar’s Ex. 3,A. Gustavo

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Trelles joined Saralegui in suing the Sacher, Zelman firm in September of 2004.

The allegations were the same as Saralegui’s, except Trelles had not received any

repayment. His initial investment was $300,000. Trelles believed that he would

receive $450,000. Tr., Day 1, pp. 38-40.

On January 3, 2005, Sacher returned to his office after the holiday break. He

discovered an envelope on his chair with a two sentence resignation letter to

Sacher and Zelman dated December 31, 2004 from Doyle. Tr., Day 1, pp. 40-42.

Doyle’s resignation was a surprise to Sacher. Thereafter, Sacher could not reach

Doyle by telephone or find him in his apartment. Sacher discovered an

inexpensive paper shredder in Doyle’s office that did not belong to the firm and

shredded documents. Tr. Day 1, pp. 44-46. As a result of Doyle’s abrupt

departure, together with the two pending lawsuits, Sacher became very concerned

and organized a group of professionals to meet about the situation. Present were

Rob Klein, the malpractice attorney handling the Saralegui/Trellis lawsuit, Bob

Josefsberg, a respected civil and criminal attorney, Andy Berman, an attorney

prominent in the ethics field, Ross Gaffney, former head of the Fraud Squad for the

F.B.I. team in South Florida, Laurie Holtz, an accountant and fraud investigator

and attorney Michael Grief. Thereafter, the team downloaded 92,000 pages of e-

mails off of Doyle’s computer and completely analyzed all of Doyle’s files. Tr.,

Day 1, pp. 47-50. Much was discovered. Phony letterhead identifying “Martin E.

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Doyle, Trustee” was found. Tr., Day 1, p. 50. It was also discovered that over a

two to three year period Doyle had been stealing people’s money, using phony

letterhead and had utilized the firm’s trust account to launder the funds. Tr. Day 1,

pp. 63-64.

Sacher, Zelman was sued for a third time as a result of Doyle’s conduct by

Juan Borrell. Borrell alleged that he had placed $350,000 in the firm’s trust

account that was not to be released without his consent and that he had never

received any money. Tr., Day 1, p. 53. The fourth lawsuit brought against the

Sacher, Zelman firm as a result of Doyle’s conduct was by Martin Zalcberg,

through his company, Ribenfell, S.A. Zalcberg alleged that he had hired Doyle

and the firm to provide financing for a transaction, which Doyle had failed to

provide. Tr., Day 1, pp. 54-55.

The firm had internal mechanisms for the receipt and disbursement of trust

funds. If trust funds were received, the attorney handling the matter had to

complete a form with detailed information. In order to request disbursements from

the trust account, other forms had to be completed and signed by the attorney.

Nothing unusual about Doyle’s use of the trust account jumped out at them. Tr.,

Day 1, pp. 55-60.

Doyle has cost the Sacher, Zelman firm between $600,000 and one million

dollars. That figure included increased and paid malpractice deductibles, accounts

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receivables from clients that Doyle had vouched for, thousands of man hours spent

investigating Doyle’s activities and preparing for the various lawsuits, and

decreased revenue due to the loss of the TerraLex designation. TerraLex is the

largest independent association of international prestigious law firms in the world.

The Sacher, Zelman firm had been the Florida member of the TerraLex network.

The firm had been removed from the network since victims of the fraud claimed

that the firm was responsible for their losses. The designation had accounted for

$500,000 to one million dollars in legal fees. Tr., Day 1, pp. 64-70. Sacher was

told that the firm was removed because of the “whole fiasco with Doyle and South

America has tainted our name and the TerraLex name”. The firm had been

members for 14 or 15 years, traveled to meetings all over the world, and held

offices in the organization. It was embarrassing and disgusting and made Sacher

very angry. Tr., Day 1, p. 72.

Rob Klein, a member of The Florida Bar since 1997, who primarily handles

legal malpractice and Bar grievance defense work testified. Klein represented the

Sacher, Zelman firm after they were sued by Saralegui. Tr., Day 1, Vol. II, pp.

118-119. His investigation of Doyle led to disturbing discoveries. Trust account

records reflected monies in and monies out to a number of different entities who

were not identified in the Saralegui and Trelles matters. They were unable to find

any reason for those entities receiving money. They also found hundreds of pages

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of phony stationery, with Doyle identifying himself as trustee in a number of

different transactions. The most disturbing discovery was reams of transactions

with multiple amounts involving hundreds of millions of dollars written to various

individuals at the same time using the same format. “There were 18 different,

similar types of deals where advanced fees were asked to be put up for some

mythical loan that was going to be arranged, often with identical letters involving

the same banks, all to different players and different ventures”. They were

identified as joint venture agreements. Between 15 and 18 other individuals were

approached with similar financing schemes. Tr., Day 1, Vol. II, pp. 126-129, 137,

160.

Klein learned of the background of the individuals associated with Doyle.

Matthew Swarz pled guilty to wire fraud. Advance fee scam documents used by

Swarz were identical to documents used by Doyle. Tavares and Williams are

jailed in Panama for fraud. Tr., Day 1, Vol. II, pp. 131-132, 154-155. In

reviewing all of Doyle’s documentation there was not any proof of a closed

transaction, closing binders or of any legitimate transaction. They were actually

advance fee scams. An advance fee scam is when you convince somebody that

you are about to do a large deal and that you need bridge financing or capital. If a

few hundred thousand dollars are put up, the money will be returned as soon as the

loan closes. There was a use of overlapping corporate names like GNT, a large

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telecommunications company. Doyle created another entity, GNT Investment and

the names were frequently used interchangeably without a single document that

legitimately linked the two companies. Also, there was no documentation to

reflect any legitimate basis for Doyle to receive any funds while an employee of

the Sacher, Zelman firm. Doyle made no disclosure to his firm or his clients of his

interest in various companies. Tr. Day 1, Vol. II, pp. 133-135, 138, 212. Trelles,

Saralegui, Zalcberg, Burns and Borrell were all victims of advance fee scams, in

varying forms. No one, except Saralegui, who received monies taken from other

victims, received any money back. Klein characterized Doyle’s activities as a

Ponzi scheme since the monies that came in went out almost immediately to either

FIS, Tavares’ company or to GBH, Antoniazzi’s company or to Kimberlyn,

Doyle’s company. Tr., Day 1, Vol. II, p. 139. Doyle told Klein that Saralegui was

paid back by Antoniazzi. That was false, since the payment of Sarlegui was from

Tavares’ FIS account. Tr., Day 1, Vol. II, p. 140-141. Klein has no doubt that

Doyle perpetrated a fraud on all of the victims. He is even more certain after

speaking to the victims. The witnesses were able to piece together things that

hadn’t made sense to Klein before; such as the notion of trustee and how some

relied on Doyle representing himself as a trustee of the firm, which was constantly

mentioned in bold letters. Also, Doyle was able to use the Sacher, Zelman firm to

lure the victims. That was particularly true with regard to Mr. Borrell. Borrell

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refused to place his money in Tavares’ account, but agreed to place his money in

the Sacher, Zelman trust account once he was comfortable with the firm’s

outstanding international reputation. Tr., Day 1, Vol. II, pp. 141-143, 152-153.

The consistent theme was that all of the victims investigated the firm’s bona fides

on the internet and looked at their credentials. Tr., Day 1, Vol. II, p. 169.

Klein also discussed “hammer letters” found in Doyle’s files. Those letters

to the victim/investor provided that either financing did not come through or that

the investor did not comply with their end of the deal, with a one or two page letter

saying “sorry, you’re not going to get your money back and mostly saying, it’s

your fault, Mr. Investor.” Tr., Day 1, Vol. II, p. 146. In the Burns/Jockey Plaza

deal, Doyle and his group claimed that the availability of collateral had been

misrepresented, according to an independent due diligence expert Cristian Evans.

Doyle and his partner Antoniazzi did not disclose to Burns that Evans was the

secretary of one of Antoniazzi’s companies. Tr., Day 1, Vol. II, pp. 147-148, 177,

Bar’s Exhibit 12. Additionally, there were e-mails from Doyle to Burns urging her

to consummate the transaction or the opportunity would be lost to others waiting in

line. Tr., Day 1, Vol. II, p. 163.

Klein testified about his defense of the Sacher, Zelman lawsuit brought by

Saralegui and Trelles. Initially, he was solely taking the position that the

agreements, signed by Doyle with Saralegui and Trelles, were criminally usurious

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under Florida law. As the investigation progressed, it was clear that the firm

would never have authorized the transactions since Doyle and others were

scamming people for their own self interests. Klein learned that Doyle had

received money himself, which Klein found to be appalling. Tr., Day 1, Vol. II,

pp. 150-152. The Saralegui/Trelles lawsuit was dismissed on the ground that the

agreements were usurious, together with a finding that Doyle was part of a scheme

to defraud the plaintiffs Saralegui and Trelles and that Doyle’s actions were not

within the course and scope of his employment. Tr., Day 1, Vol. II, p. 166, Bar’s

Ex. 13.

With regard to the Ribenfell/Zalcberg litigation against Sacher, Zelman, the

financial exposure was between 40 and 60 million dollars since an opportunity was

lost due to Doyle’s promises to secure financing. The financing was never secured

and Doyle and his associates nevertheless received those funds. Tr., Day 1, Vol.

II, p. 169; Bar’s composite exhibit 16. According to Klein, the Sacher, Zelman

firm has been damaged more than they realize at this point, by Doyle’s conduct.

Their insurance rates have increased dramatically. They are now paying two to

three times as much per attorney for coverage. They have had to pay $50,000 per

claim. The biggest issue is that they were asked to resign their membership from

the TerraLex network, particularly since the firm prides itself on doing business in

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the international business community. Klein stated that Bart Sacher is constantly

looking over his shoulder for the next lawsuit. Tr., Day 1, Vol. II, pp. 170-173.

Juan Borrell traveled from his home in Panama to testify. Tr., Day 2, Vol. I,

p. 288. Borrell was approached by Hector Williams and Tavares, owners of

Incotesa for money for a project. Borrell would provide $350,000 and he would

later receive 9 million dollars. Tavares originally requested that the money be sent

to his personal account. Borrell was not comfortable with doing that. They

suggested that Borrell’s money be sent to the Sacher, Zelman firm. Borrell

investigated the firm and Doyle, since Borrell’s life savings were at stake. Borrell

discovered that the firm had a very solvent economic and client base and was a

member of TerraLex. Borrell did not believe that his funds would be at risk with a

firm of that caliber. Tr., Day 2, Vol. I, pp. 289-293, 326. Borrell and his wife also

spoke to Doyle several times. The Borrells called Doyle at the Sacher, Zelman

firm through the switchboard and Doyle called their office two or three times.

There were between 5 and 7 telephone calls. The signed agreement had been

faxed to Doyle. Tr., Day 2, Vol. I, pp. 293-294, 323. The central and most

important point of those telephone conversations with Doyle was that the money

could not be touched without Borrell’s consent, as is reflected by the signed

agreement. Doyle was aware that the money could not be touched without

Borrell’s consent and would be returned to Borrell if the loan Incotesa was seeking

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did not materialize. Doyle told Borrell not to worry since the money could not be

used unless Borrell consented. They spoke in English. After those assurances,

Borrell transmitted his life savings to the Sacher, Zelman trust account beginning

on July 16, 2003. Tr., Day 2, Vol. I pp. 294-298, 307, 325; Bar’s Composite

Exhibit 16. Borrell was not aware that beginning on July 18, 2003 all his funds

were being disbursed between Tavares, Antoniazzi and Doyle. Borrell contacted

Tavares and Williams about his money and was given false promises. In 2005,

Borrell and other people damaged by this scam filed six penal or criminal

indictments in Panama against Tavares and Williams. Both are in jail for the past

three years. Tr., Day 2, Vol. I, pp. 298-302. Borrell currently has a lawsuit

pending against the Sacher, Zelman firm because the money was placed in their

trust account. Borrell has had to travel to the United States about 8 times for the

lawsuit. He has not recovered any money. The loss of his life savings has been

traumatic, led to depression as well as causing problems with his wife and children.

Tr,. Day 2, Vol. I, pp. 302-304.

Juan Borrell’s wife Ana also traveled from Panama to testify. She speaks

excellent English. Tr., Day 2, Vol. I, p. 331. Mrs. Borrell participated in all of the

telephone conversations with Doyle. At first Doyle requested that the funds be

sent to Tavares’ FIS account. When the Borrells refused, Doyle said the funds

could be sent to an attorney’s trust account and that the funds would not be touched

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under any circumstance without Mr. Borrell’s authorization. Doyle was sent the

agreement that reflected those terms and acknowledged receiving it. Tr., Day 2,

Vol. I, p. 337. Neither Mr. nor Mrs. Borrell consented to the use or receipt of their

funds by Doyle or by anyone else. Tr., Day 2, Vol. I, p. 338.

Ariel Furst, a member of The Florida Bar, and attorney for

Zalcberg/Ribenfell appeared as a witness. His client transferred at least $315,000

to the Sacher, Zelman trust account to procure financing for a project in Uruguay.

Zalcberg never got anything for it, despite making demands on Doyle. Tr., Day 2,

Vol. I, pp. 353-354. Furst filed a lawsuit in October of 2007 against Sacher,

Zelman and Martin Doyle individually. Furst attached a copy of an e-mail from

Doyle dated October 8, 2003 to his civil complaint indicating that the Zalcberg

monies remained in trust. In reality, the monies deposited in June of 2003 had

been removed within 24 to 48 hours after they were deposited. Tr., Day 2, Vol. I,

pp. 355, 357-358, 363, Bar’s Exhibit 9. The contract provided that if Zalcberg did

not receive an insurance guaranteed binder or loan commitment, money could not

be removed from the trust account. Neither the binder nor commitment were

received. Tr., Day 2, Vol. I, p. 362.

Gustavo Trelles traveled from Uruguay to testify about the money that

Doyle took from him. Trelles met Doyle at the Sacher, Zelman offices in the fall

of 2002. Trelles was impressed with Doyle, the offices, the firm’s reputation,

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trustworthiness and TerraLex designation. Tr., Day 2, Vol. I, pp. 387-389. Trelles

agreed to send $300,000 to the Sacher, Zelman trust account and in exchange he

would receive $450,000 in 30 days since Doyle and the others were working on a

business deal with one of the firm’s clients. The return to Trelles was not

dependent on the success of the project and the client and trustee assumed full

responsibility for the monies, as stated in the agreement and signed by Martin

Doyle. He always thought Sacher, Zelman would send his money back since their

trust account was used. Trelles never received his money back. Tr., Day 2, Vol. I,

pp. 391-394, 396, 398, 405. Trelles hired an attorney, who he has paid over a

hundred thousand dollars in an attempt to get his money back. That case was lost

since the judge ruled that the loan was usurious. An appeal is pending. Tr., Day 2,

Vol. I, pp. 399-400.

Carlos Ruga, the Bar’s auditor testified. He examined bank accounts and

documents related to the victims of Doyle and the use of the Sacher, Zelman trust

account. He examined two of Doyle’s personal accounts and Pablo Antoniazzi’s

account. Mr. Ruga created various charts of those transactions. Ruga traced

$1,689,925.00 received into the Sacher, Zelman account from Doyle’s victims.

Tavares received $456,800.00 and Antonazzi received $505,639.50. $ 678,527.30

was used for other payments, including reimbursing Sarelgui, one of the victims.

Sarelgui’s refund came from the victims, Burns and Zalcberg/Ribenfell. Tr., Day

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2, Vol. I, p. 423, 435-436; Bar’s composite exhibit 16. Doyle received $258,280

from the victims’ funds. The monies that were deposited into the Sacher, Zelman

trust account were never transferred to Doyle directly. Rather, they were sent from

Antoniazzi’s personal account or from an account identified as Kimberlyn. Tr.,

Day 2, Vol. I, p. 444.

Greg Pilant testified on behalf of the Bar in regard to the order to show cause

matter pending before the referee. He founded Greystone Pharmaceuticals in

1995. He is the C.E.O. Greystone is currently located in Fort Myers, Florida.

Doyle served as Greystone’s in-house counsel beginning in January of 2005.and

ending in November of 2007. Doyle held the title president, in-house counsel and

later held the title of president, general counsel. Doyle performed general counsel

functions, such as reviewing contracts and documents and coordinating any of the

outside counsel. Doyle’s responsibilities never changed with the change of titles.

Throughout Doyle’s tenure with Greystone, Doyle always held the title of in-house

or general counsel, in addition to other titles. Tr., Day 3, Vol. I, pp. 476-479, 525,

551. Doyle did not inform Pilant that he was suspended by The Florida Supreme

Court on an emergency basis in August of 2006. Pilant had some indication of the

suspension in March of 2007 and asked Doyle about it. Doyle advised Pilant that

it was not a big issue and that he was in the process of resolving it in his favor

shortly. Pilant informed his Board of Directors. Doyle was asked to produce

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documents about the suspension. Since Doyle did not produce the requested

documents, an attorney and accounting firm were hired by Greystone. In the

meantime, Doyle was placed as a director of the company. Pilant was upset that he

was not informed by Doyle of the suspension order. There was exposure to

Pilant’s company. Doyle was deceptive to Pilant and to the company. Tr., Day 3,

Vol. I, pp. 479-483, 486. Pilant testified about an April 10, 2007 e-mail from

Doyle to him. It contained a consulting agreement with notes from Doyle and

inserts as an attorney with regard to the legal side. That is the work his lawyer

would do. Tr., Day 3, Vol. I, pp. 528-531. Pilant also identified an e-mail sent by

Doyle on November 3, 2006, well after the August 6, 2006 suspension date, which

states, “My name is Martin Doyle. I function as general counsel and head of M &

A operations for Greystone…” Tr., Day 3, Vol. I, pp. 551-552; Bar’s Exhibit 19.

Pablo Antoniazzi testified for Doyle. He talked about multiple attempts to

obtain loans from international banks, which did not come to fruition. Tr., Day 3,

Vol. I, pp. 572-585; Tr., Day 3, Vol. II., pp. 590-595. Doyle was authorized to

sign as managing director of Kimberlyn Investments. Tr., Day 3, Vol. II, p. 597.

Concerning the Zalcberg/Ribenfell transaction Antoniazzi testified that he already

had a loan commitment even though the contract provided an entitlement to a fee

once a loan commitment was obtained in the future. He testified that the contract

prepared by Martin Doyle was not accurate. Antoniazzi said that he had already

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earned Mr. Zalcberg’s $250,000 once the contract was signed, even though the

loan commitment meant nothing. Tr., Day 3, Vol. II, pp. 628-636. Antoniazzi was

part of a consortium of advisors, which included Martin Doyle as its only legal

advisor. That consortium entered into the contract with Zalcberg/Ribenfell. When

asked if either Antoniazzi or Doyle advised Zalcberg that he might not get

licensing for his project without a loan commitment, Antoniazzi responded that it

was not their problem. According to Antoniazzi, Zalcberg did not do what he was

supposed to do. Tr., Day 3, Vol. II, p. 638. Mr. Antoniazzi said that the lawsuit

brought against him by Trelles and Saralegui was resolved without a finding of

fraud against him. Tr., Day 3, Vol. II, p. 642. When shown a copy of the final

judgment which provided, “It’s equally clear that Mr. Doyle’s conduct was part of

some kind of scheme to defraud the two Plaintiffs.”, Mr. Antoniazzi said that he

had misread the document. He was represented by counsel in that proceeding.

Antoniazzi then admitted that Judge Hubbart found that he was involved in a fraud

with Martin Doyle. Tr., Day 3, Vol. II, pp. 646-647; Bar’s Exhibit 13.

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SUMMARY OF THE ARGUMENT

The respondent has taken the position that the referee’s findings of fact are

not supported by the record, when in reality each finding is amply supported by the

testimony of one or more witnesses and in most instances documentary evidence.

Thus, the respondent has failed to satisfy the standard of review necessary for the

referee’s findings to be overturned.

Additionally, the respondent’s argument that he was not afforded the

opportunity to present evidence in mitigation is not borne out by the record. The

respondent was given the same opportunity, to present evidence and argument in

mitigation as was the Bar, to present evidence and argument in aggravation.

The referee was very liberal with the time spent in hearing the matter, as

well as accepting any proposed reports. The respondent simply chose not to argue

or present any evidence of mitigation.

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ISSUES ON APPEAL

I

WHETHER THE REFEREE’S FINDINGS OF FACT ARE SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE (UNDERLYING CASE NUMBER SC06-2080)

II

WHETHER THE REFEREE’S FINDINGS OF FACT ARE SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE

(ORDER TO SHOW CAUSE/CONTEMPT CASE NUMBER SC08-69)

III

WHETHER THE RESPONDENT WAS AFFORDED AN OPPORTUNITY TO PRESENT MITIGATING EVIDENCE AS TO THE DISCIPLINE TO

BE IMPOSED

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ARGUMENT

I.

THE REFEREE’S FINDINGS OF FACT ARE SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE

(UNDERLYING CASE NUMBER SC06-2080)

This Court’s review of a referee’s factual findings is limited to determining whether they are supported by competent, substantial evidence. This Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla. 2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla. 1998). A respondent contesting factual findings cannot simply point to contradictory evidence when competent, substantial evidence supports the findings. Fla. Bar v. Cimmitte, 916 So.2d 741 (Fla. 2005); Fla. Bar v. Nowacki, 697 So.2d 828, 832 (Fla. 1997).

The Florida Bar v. Varner, 33 Fla. L. Weekly S731 (Fla. September 25, 2008) There is competent evidence to support each one of the referee’s findings as

is cogently and extensively set forth in the Corrected Findings, Conclusions and

Recommendation of Referee. RR; A-1. Contrary to the standard of review, the

respondent simply points to contradictory evidence in support of his position.

Trelles and Saralegui

The referee reviewed the agreements signed by Trelles and Saralegui and

Doyle and set forth the following portions in the Report of Referee.

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However, the agreements state further that:

[Trelles/Saralegui]… acting as the participant in this agreement, and Sacher, Zelman, Van Sant, Paul, Beiley, Hartman, and Waldman, P.A. – Martin E. Doyle-Trustee, acting solely in his capacity as a Trustee for a client (“Client”).

…

Client and the Trustee, in turn, assume full responsibility for the repayment of the indicated sum plus a reasonable return… no later than thirty days from the time of execution of the transfer by the participant. RR, p.5; A-1, p.5

The finding that the respondent held himself out as trustee of the firm who

would assume full responsibility for the Trelles/Saralegui monies is supported by

the language of the agreement, as noted by the referee. The referee further found

that Doyle’s presentation of agreements to Saralegui and Trelles which identified

Doyle as “trustee” of the firm who “assumed full responsibility” was calculated to

create a false sense of security. Trelles testified that he entered into the agreement

for just that reason. Tr., Day 2, Vol. II, pp. 392-393.

Respondent’s version of the events that he was merely moving money and

under no obligation - - contradictory evidence, was not found by the referee to be a

credible version of the events. Respondent’s reference to a motion to dismiss filed

in the civil lawsuit brought against the Sacher, Zelman firm is likewise unavailing.

The dismissal of the lawsuit was based on the loan being criminally usurious. In

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fact, the referee found that respondent’s participation in a usurious loan transaction

was improper. RR, p.7; A-1, p.7. The dismissal of that lawsuit also included a

finding that Doyle’s conduct was part of a scheme to defraud the plaintiffs;

Saralegui and Trelles. RR, p.7; A-1, p. 7.

Margaret Burns/Jockey Plaza

The respondent takes issue with certain findings of the referee and also

states that the referee ignored other evidence. Respondent, however, omits the

remaining findings from which the referee concluded that Doyle, and others

committed a fraud. First, as with the other victims, Burns was impressed with the

Sacher, Zelman firm. Doyle knew that the use of the firm’s offices and its

reputation would help to close a deal. Burns expressed her doubts about dealing

with Antoniazzi and Tavares. As a result, Doyle brought Burns to his office,

which impressed her. Bar’s Ex. 11. The referee further found that Burns trusted

the sanctity of the firm’s trust account. RR, p.8; A-1, p.8. The agreement signed

by Burns and Doyle provided that the $250,000 retainer provided by Burns would

be returned if Doyle and his partners could not procure an insurance proposal.

Antoniazzi sent due diligence expert Cristian Evans to determine whether certain

shares were available. This expert was actually a secretary of Antoniazzi’s

company G.B.H. and therefore was not “independent”. Burns was not advised of

Evans’ affiliation with Antoniazzi and G.B.H. Evans claimed that the shares were

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pledged to another lender. Burns established that they were not. Bar Ex. 11. The

referee concluded, based on Burns’ testimony, set forth in her grievance to The

Florida Bar, that Evans’ affiliation was undisclosed and that it was the pattern of

Doyle and his partners to find an “out” as a basis to defraud investors of their

monies. Also, Rob Klein, who thoroughly investigated all of Doyle’s

involvements, testified about the pattern of blaming the investor, as the modus

operandi to keep their funds. Tr., Day 1, Vol. II, p.46. The aforementioned facts

are a sound basis for the referee to have found that yet another fraud was

committed.

The referee did not find that Doyle acted in good faith. Rather, that he took

numerous steps to steal Ms. Burns’ clients’ funds.

Ribenfell/Zalcberg

The respondent argues that the referee’s finding that a document purporting

to be a loan commitment from Matthew Swarz was not a genuine loan commitment

is not supported by the record. Respondent’s argument is specious. First, Rob

Klein testified that this one sheet document was not genuine as it lacked any of the

supporting documentation. Tr., Day 1, Vol. II, P.162. Second, Ariel Furst, who

represented Zalcberg against the Sacher, Zelman firm and obtained a substantial

settlement, also testified that there was not any genuine or legitimate loan

commitment obtained. Tr., Day 2, Vol. I, pp. 383-384. Third, Mr. Zalcberg was

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able to obtain a substantial settlement since the failure by Doyle and his group to

provide him with a loan commitment led to the inability to obtain a license to

complete the project. It was the loss of the revenue from the project which gave

the Sacher, Zelman firm 50 million dollars of exposure with regard to liability.

Klein testified that such exposure was the primary reason the case was settled for a

substantial amount. Tr., Day 1, Vol. II, p.168.

Borrell

Respondent argues that the referee’s finding that Doyle assured the Borrells

that their money would not be disbursed without their consent is unsupported by

the record since the agreement was written in Spanish. That argument is baseless.

Both Mr. and Mrs. Borrell testified that they spoke with Martin Doyle between five

and seven times and confirmed his receipt of the agreement. They also both

testified that Doyle clearly understood that Mr. Borrell’s money would not be

touched without Mr. Borrell’s consent. Tr., Day 2, Vol. I, pp. 294-298, 307, 325;

Tr., Day 2, Vol. I, p.337.

The disingenuousness of the respondent’s position is also established by the

following. On July 15, 2003, prior to the receipt of the Borrell money, Doyle

received an e-mail from his partner Tavares. Bar’s Ex. 15. In that e-mail it is clear

that Doyle has been forwarded a copy of the agreement and is being directed to

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disburse the Borrell funds for various purposes, in contradiction to his multiple

representations to the Borrells. The e-mail states:

Our arrangement (confidential) is that we split the USD 350.000,- with Incotesa and Dr. Dudly Jr. who organized the operation.

Although the respondent submitted multiple notebooks to the referee as exhibits,

one of which concerned the Borrells, the July 15, 2003 e-mail was, not

surprisingly, absent.

Clearly, this e-mail establishes Doyle and his partners’ intentions. The

Borrells were to be the victims of their “operation”.

Sacher/Zelman

It is hard to understand how this respondent could argue that the referee’s

finding that the respondent was unauthorized to act as trustee, and had used phony

letterhead is not supported by the record. Bart Sacher, Doyle’s employer, testified

that Doyle was told he could not act as trustee, as well as being provided with the

office manual which likewise prohibited an employee to serve as trustee. Tr., Day

1, Vol. I, p.36.

Sacher also testified that the letterhead was phony. Tr., Day 1, Vol. I, P.63.

Rob Klein testified that the letterhead was phony. For instance, the TerraLex globe

on the letterhead was on its side, and letters were incorrectly lower cased. The

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referee even noticed that there was a dollar sign in between the address and the

suite number. Tr., Day 1, Vol. II, pp. 126, 234-235.

Respondent points to letters written by Richard Zelman which he claims

establish Zelman’s knowledge of Doyle’s fraudulent conduct while an employee of

the firm. Those items were presented to the referee. The respondent did not

conclude that the firm was aware of the respondent’s misconduct based on those

letters. Rather, the referee found that Doyle did circumvent the firm’s policies to

accomplish his scams. RR , p.14; A-1, p.14. Surely, had anyone in the firm been

aware of Doyle’s conduct they would not have exposed themselves to multiple

million dollar lawsuits, millions of dollars in loss revenue and time, loss of an

international designation and most of all, loss of piece of mind. The referee’s

findings were amply supported by the record.

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ARGUMENT

II

THE REFEREE’S FINDINGS OF FACT ARE SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE

(ORDER TO SHOW CAUSE/CONTEMPT CASE NUMBER SC08-69)

The respondent argues that the referee’s finding that the respondent

continued to do the same work for Greystone as he did as general counsel after

May 2006 is not supported by the record. Again, the respondent discounts

testimony presented to the referee. Greg Pilant, Greystone’s CEO testified that

Doyle’s responsibilities as his general counsel never changed with the change of

titles, from January of 2005 until he discovered in March of 2007 that Doyle had

been suspended in August of 2006. Tr., Day 3, Vol. I, p. 525.

The referee’s report contains several basis’ for a finding that Doyle violated

this Court’s order. The respondent identified himself as general counsel of

Greystone in a November 3, 2006 e-mail. Obviously, the referee relied on the

respondent’s own words.

Further, the respondent was presented with an April 10, 2007 exchange

between Doyle and his client Greg Pilant in which Doyle gives multiple legal

opinions concerning a proposed consulting agreement. Clearly, the referee

concluded that the respondent was practicing law, not practicing business as he

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argued and that he failed to advise his employer/client of his suspension. Bar’s Ex.

19, at Ex. 1, ex. B.

Further, the respondent argues that the referee could not conclude that

Doyle’s affidavit to the Bar swearing that he had no clients at the time of his

suspension, despite rendering legal services to Greystone, is a basis for ordering

disbarment. The referee, in fact, recommended permanent disbarment. False

statements to The Florida Bar under oath, in and of themselves are grounds for

disbarment. The Florida Bar v. Senton, 882 So.2d 997 (Fla. 2004). Apparently,

the referee did not find the respondent’s testimony that he relied on “veteran bar

counsel” for advice when submitting the affidavit, to be credible. Moreover, in

The Florida Bar v. Dubow, 636 So.2d 1287 (Fla. 1994), that attorney argued that

he was advised by an attorney that he need not respond to a request for admissions

in a Bar proceeding. This Court held,

Ignorance of the law is not an excuse. This maxim holds particularly true for lawyers who are charged with notice of the rules and the standards of ethical and professional conduct prescribed by the court rule 3-4.1.

Dubow, at 1287

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ARGUMENT

III

THE RESPONDENT WAS AFFORDED AN OPPORTUNITY TO PRESENT MITIGATING EVIDENCE AS TO THE DISCIPLINE TO BE

IMPOSED

The final hearing in this matter lasted over four days with three days of the

hearing concluding at 6:45 p.m., 7:00 p.m., and 7:25 p.m. in the evening. The

referee heard the testimony of 12 witnesses and reviewed thousand of pages of

exhibits. There was never any time restriction placed on either party. At the

conclusion of the final hearing, the Bar presented the referee with a package of

material containing potential aggravating circumstances as set forth in the Florida

Standards for Imposing Lawyer Sanctions. The referee inquired about mitigating

factors. Tr., Day 4, Vol. I, p. 909. The respondent’s attorney was silent. There is

no doubt that the referee would have entertained any evidence of mitigation that

the respondent sought to present. It was the respondent’s choice not to present any

evidence in mitigation or request for any lesser discipline, even in the face of the

Bar’s request for permanent disbarment.

In fact, the referee offered to accept proposed reports of referee. The Florida

Bar submitted a proposed report of referee on May 19, 2008. In it the Bar set forth

7 potential aggravating circumstances and no mitigating circumstances. The

respondent submitted a proposed report on May 13, 2008 to the referee and elected

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not to set forth any evidence in mitigation or refer to the Florida Standards for

Imposing Lawyer Sanctions. The respondent chose to take the position that he did

no wrong.

The arrogance of the respondent’s position is set forth in the last line of his

closing argument.

Does he deserve to be disbarred? No. What he deserves is a letter from The Florida Bar that says, “Dear Mr. Doyle: Our investigation in this case got misdirected. Sorry. You can have your life back now”. Tr., Day 4, Vol. I, p.908

This respondent had every opportunity to present mitigation and chose not to avail

himself of those opportunities and is foreclosed from doing so now. The Florida Bar v.

Mogil, 763 So.2d 303 (Fla. 2000); The Florida Bar v. Weed, 559 So.2d 1094 (Fla. 1990);

The Florida Bar v. Furman, 451 So.2d 808 (Fla. 1984).

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CONCLUSION

Based upon the foregoing reasons and citations of authority, The Florida Bar

respectfully submits that the referee’s reports in case numbers SC06-2080 and

SC08-69 recommending permanent disbarment should be approved.

Respectfully submitted, ______________________________ RANDI KLAYMAN LAZARUS Bar Counsel

TFB No. 360929 The Florida Bar 444 Brickell Avenue

Suite M-100 Miami, Florida 33l3l Tel: (305) 377-4445 KENNETH L. MARVIN Staff Counsel TFB No. 200999 The Florida Bar

651 East Jefferson Street Tallahassee, Florida 32399-2300 Tel: (850) 56l-5600 JOHN F. HARKNESS, JR. Executive Director TFB No. 123390 The Florida Bar

651 East Jefferson Street Tallahassee, Florida 32399-2300 Tel: (850) 56l-5600

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and 7 copies of The Answer Brief of

The Florida Bar was sent by regular to the Honorable Thomas D. Hall, Clerk,

Supreme Court of Florida, Supreme Court Building, 500 South Duval Street,

Tallahassee, Florida 32399-1927, and a true and correct copy was sent by regular

mail to Richard Adam Greenberg, Attorney for the Respondent, at his record Bar

address, Rumberger, Kirk and Caldwell, 215 South Monroe Street, Suite 130,

Tallahassee, Florida 32301; and to Kenneth Lawrence Marvin, Staff Counsel, The

Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399, on this ____

day of October 2008.

____________________________ RANDI KLAYMAN LAZARUS Bar Counsel

CERTIFICATE OF TYPE, SIZE AND STYLE I HEREBY CERTIFY that the Initial Brief of The Florida Bar is submitted in 14 point proportionately spaced Times New Roman font in Microsoft Word format. ____________________________ RANDI KLAYMAN LAZARUS Bar Counsel

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INDEX TO APPENDIX

A-1 Corrected Findings, Conclusions and Recommendation of Referee in the matter of The Florida Bar v. Martin Edward Doyle, Florida Supreme Court Case Number SC06-2080, The Florida Bar File Number 2006-70,751(11A).

A-2 Findings, Conclusions and Recommendation of Referee in the matter

of The Florida Bar v. Martin Edward Doyle, Florida Supreme Court Case Number SC08-69, The Florida Bar File Number 2008-70,669(11A-OSC).