IN THE SUPREME COURT OF FLORIDA(Before a Referee)

THE FLORIDA BARComplainant,

Case No. SC01-944v. Lower Tribunal No.:1999-10, 466

(13a)

ROBERT A. BOLAND, ESQ.Respondent.

/

SECOND AMENDED INITIAL BRIEF OF RESPONDENTROBERT A. BOLAND

Robert A. Boland, Esq.P.O. Box 172431Tampa, Florida 33672-0431Florida Bar No. 281476(813) 832-5189

Attorney For RespondentRobert A. Boland, Esquire

TABLE OF CONTENTS

PAGE

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-9

Issues Presented on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-23

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iTABLE OF AUTHORITIES

Cases Page(s)

Crosby v. State97 So 2d 181 (Fla 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dickinson v. Parks140 So 459 (Fla 1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Liteky v. U.S510 U.S. 540, 114 S. Ct. 1147 127L. ed 2d 474 (1994) . . . . . . . . . . . . . . 12

Munez v. Barkman645 So 2d 1063 (Fla 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Pucket v. State591 So 2d 326 (App. 5th 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rucks v. State692 So 2d 976 (App. 2nd Dist. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Scussel v. Kelly152 So 2d 767 (App. 2nd Dist. 1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State Ex Bel Florida Bar v. Speery140 So 2d 587 (Fla.1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Supreme Court Case No. 85-274. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5,13

Supreme Court Case No. 97-361. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,4,5

The Florida Bar v. Jones571 So 2d 426 (Fla.1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Florida Bar v. Howard306 So 2d 515 (Fla.1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Florida Bar v. Vannier498 So 2d 876, 898 (Fla.1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ii

TABLE OF AUTHORITIES

Statutes Page(s)

FS 38.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rules

The Florida Bar Rules of Discipline 3-76(g)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Florida Bar Judicial Administrative Rules 2.160(c) and (d) . . . . . . . . . . . . . . 13

iiiINDEX

In this Brief, The Florida Bar, Petitioner, will be referred to as “The Florida

Bar.” The Respondent, Robert A. Boland, will be referred to as “Respondent.”

TT _______ (page number) will refer to the excerpt of the transcript of the

final hearing before the Referee in Supreme Court Case No. SC01-944 held

October 12, 2001.

The response letter written by Robert A. Boland on April 5, 1999 to the

Complainant and Florida Bar will be referenced as RR______ (page number).

All Motions, Orders and Exhibits in this case will be referred as such.

All references to Motions, Orders and Exhibits of S.Ct. Case 85,274 and 97-

361 will be referred to as such.

1

iv

STATEMENT OF THE CASE

There are two Supreme Court cases concerning the Respondent that are

necessary of discussion to understand the issues in this matter.

In the Florida Bar vs. Robert A. Boland., S.Ct. Case No 85,274. Referee

Brandt Downey recommended a two year suspension of Robert A. Boland’s law

license. This Honorable Court affirmed the recommendation of Referee Brandt

Downey based upon the following:

“A Referee’s findings of fact carry of presumption ofcorrectness that should be upheld unless clearly erroneousor without support in the record. Florida Bar v. Vannier,498S.2d 896, 898 (Fla. 1986).”

Per Curiam Supreme Court of Florida Order, Case No.85,274, page 3.

Robert A. Boland, Esq. was suspended effective January 5,1998.

During the pendency of this Honorable Court reviewing the aforementioned

case, The Florida Bar filed a complaint against Robert A. Boland in Supreme Court

Case No. 97,361. The Florida Bar theory was that Robert A. Boland charged the

Complainant an excessive fee of $3,500.00 to review the possibility of writing a

1Trial counsel was paid in excess of $75,000.00.

2

collateral attack appeal of a second degree murder conviction.1 ( Complaint of Florida

Bar, S.Ct. Case no. 97-361).

Due to the behavior of Referee Brandt Downey in the original case resulting in

suspension, Supreme Court Case No. 85,274, Robert A. Boland filed a Recusal

Motion against Referee Brandt Downey. (Respondent’s Recusal Motion S.Ct. Case

97-361). That Recusal Motion stated as follows:

In S.C. Case No. 97-361 Robert A. Boland, Esq. made a Recusal Motion

based on the following sworn facts:

(1) While acting as Referee in Supreme Court Case No. 97-361 Referee Brandt

Downey:

(a) engaged in numerous ex-parte conversations with Tom DeBerg, Esq,

who was representing the Petitioner, The Florida Bar;

(b) without issuing any written findings of fact, a sanctions hearing was set

and Referee Brandt Downey and Tom DeBerg had ex-parte

communications about the verdict and what was the appropriate

punishment. Further, that both individuals admitted to such unethical

behavior;

(c) that the aforementioned conduct was a violation of the Judicial Code of

3

Ethics and Judicial Conduct.

(d) that Referee Brandt Downey never adequately read the transcript or

adequately applied himself as a fact-finder.

(e) that Referee never wrote any findings of fact and merely adopted the

proposed findings of fact written by the Florida Bar.

(f) that Referee applied a preponderance of evidence standard instead of the

clear and convincing standard as mandated by this Honorable Court.

Further, that he adopted the wrong standard intentionally and willfully.

(g) that Referee Brandt Downey is biased and prejudiced against Robert A.

Boland, Esq. and biased and prejudiced in favor of the Florida Bar and

cannot give Robert A. Boland a fair hearing.

(2) Referee Brandt Downey lied during the proceedings of Supreme Court 97-361.

(Respondent’s Recusal Motion 97-361).

Referee Brandt Downey denied the Recusal Motion (Order denying Recusal

Supreme Court Case 97-361). As a consequence of the intentional and willful refusal

of Referee Brandt Downey to recuse himself, Robert A. Boland was forced into a

settlement with The Florida Bar for something he did not do. Respondent Robert A.

Boland agreed to return a portion of monies received from his client within 60 days

and The Florida Bar would dismiss the complaint against the Respondent Robert A.

Boland. Each side was to assume its own costs. (Settlement Agreement and Order,

2The Defendant Robert A. Boland fractured his neck, spine and shoulder as a passenger in acar accident. His medical bills from the accident were in excess of $90,000.00 at the time of thecontempt hearing. He had no insurance.

3The Florida Supreme Court has consistently ruled that one in civil contempt cannot be jailedwithout a hearing and a finding of indigence.

4

Supreme Court Case 97-361). Soon after this settlement and dismissal the

Respondent encountered financial difficulty.2 This resulted in his inability to pay the

monies due within sixty days as agreed upon. Referee Brandt Downey signed ex-parte

a Contempt and Pick-Up Order against the Respondent Robert A. Boland.3 The

Respondent was forced to hire counsel to set aside the Order. This was

accomplished and the Order was set aside. (Order Setting Aside Contempt S.Ct.

Case 97-361) . A hearing was held and indigence was clearly and overwhelmingly

established. (Order Finding No contempt, S.Ct. Case 97-361). Nonetheless, Referee

Brandt Downey ordered the Respondent Robert A. Boland to pay the costs of the

contempt hearing, over One Thousand Dollars, even though he prevailed. (Order

Finding No Contempt S.Ct. Case 97-361). This was contrary to the agreement of the

parties. (Settlement Agreement S.Ct. Case 97-361).

In this case, Supreme Court Case No. 99-1,446(13a), The Florida Bar alleged

in their complaint another “excessive fee” theory as well as practicing law while

suspended, although this was not The Florida Bar’s only attempt at additional

4Local counsel for The Florida Bar, Debra Davis, Esq. filed a “secret” grievance against RobertA. Boland for filing his Recusal Motion in Supreme Court Case No. 91-361. This was killed andnullified by the probable cause committee of Hillsborough County 13(a).

5

sanctions.4 (Complaint of Florida Bar, pages 2-8.)

Based on the behavior of Referee Brandt Downey in Supreme Court Case No.

85,274, the behavior of Referee Brandt Downey in Supreme Court Case 97-361, the

ex-parte pick-up order in Supreme Court 97,361, the Respondent filed a recusal

motion in this case. (Respondent’s Recusal Motion).

The grounds for the recusal contained all of the allegations as previously

mentioned in Supreme Court 97,361 as well as new ones. (Respondent’s Recusal

Motion). Referee Brandt Downey denied the motion. (Order Denying Recusal).

Referee Brandt Downey is recommending to this Honorable Court disbarment for

seven years and cost sanctions. This Appeal follows:

5They were stopped because they “looked like illegal Mexican immigrants.”

6The arresting affidavit indicated that Mr. Jimenez gave his consent to a search of his car afterthe illegal stop and detention.

6

STATEMENT OF FACTS

The Respondent, Robert A. Boland, Esq. represented the Complainant from

1996 to January 5, 1998, the time in which he became suspended. (TT 6,7). In July

of 1997 the Complainant was arrested in Lake City, Florida on a variety of drug

felonies. (TT page 6).

The Respondent drove to Lake City, Florida on his behalf, a driving distance

of three hours each way, and studied the arresting affidavits of the U.S. Immigration

and Florida Sheriff officers who participated. (TT 26, RR 1, 2). The Respondent

also went to the scene where they were stopped.5 (RR 1,2) This took an entire day

counting the driving. (RR1,2). At this time I advised Mr. Jimenez that the stop and

subsequent detention was, in my opinion, an illegal one. (TT26-30) Such a stop

without a reasonable suspicion would render inadmissible the drugs found in his car.6

(TT26-30).

It was the Respondent’s advice after traveling to Lake City that Mr. Jimenez

7

allow the court to appoint a local lawyer for him since he was indigent. (TT26-

30,RR1,2) Two cousins of his were traveling with him and one was appointed a

public defender. (TT-27). After the Complainant was appointed a private lawyer

Respondent advised the Complainant that if Respondent entered the case as the

attorney of record the legal fees would be quite high. (TT29RR1,2). Respondent

would have to appear for arraignment, the taking of many depositions, status hearings,

pre-trial hearings, motion to suppress hearings, etc. (TT29RR1,2). The Respondent’s

fees would be in excess of $5,000.00 to do all that, perhaps higher considering the

three hour drive each way. (TT26). Months after Respondent’s first visit to Lake

City, Respondent again went to Lake City at the request of Mr. Jimenez.

(TT30RR1,2) The Complainant stated that his court appointed lawyer never kept in

contact with him and he wanted the Respondent to reconsider taking his case.

(RR1,2). Again, Respondent traveled to Lake City. (RR1,2). This time Respondent

had conversations with his Court appointed lawyer and read the Court file, especially

the Suppression Motions contained therein. (RR1,2). Respondent even stayed

overnight at a local hotel to watch the next day’s pre-trial conference commencing at

7:30 AM. (RR1,2). Again, Respondent advised him to keep his court appointed

attorney because the Respondent felt he was very sharp and had a good rapport with

the trial judge. (TT29-30,RR1,2)

During the years Respondent represented Mr. Jimenez, the Respondent also

8

helped him regain his drivers license. (TT20-29). The Respondent specifically

remembered driving the Complainant to various counties to get D-6 clearances and

driving the Complainant to the Motor Vehicle Department to get validated.

(TT20-29). The Respondent and Complainant were successful but such effort took

another entire day. (RR1,2). Respondent also assisted his cousin, Mr. Salazar, in

bonding out of jail. (TT34-35). While Respondent never represented Mr. Salazar,

Respondent guaranteed a $5,000.00 premium to the bondsman ($500.00). (TT34-35).

Mr. Salazar never showed to court and the bondsman had to pay $250.00 to keep the

estreature from going to judgment. (TT34-35). Thus, the Respondent owed the

bondsman $750.00. (TT34-36). Luckily, Mr. Salazar was eventually recaptured.

(TT34-36). Mr. Jimenez reimbursed Respondent for the $750.00 Respondent owed

the bondsman. (TT34-36). After the Respondent was suspended in 1998 Mr. Jimenez

came to the Respondent with new criminal matters. (RR1,2). The Respondent

advised him that he couldn’t handle these cases because he was suspended. (RR1,2).

The Complainant’s testimony at trial was that the Respondent told him he couldn’t

handle the new cases but he couldn’t recall whether he was advised of the suspension.

(TT13). The Respondent referred various lawyers to the Complainant because of

friendship. (TT13-22,43). Nowhere in the case file does the Florida Bar have any

proof of the Respondent entering a courtroom as an attorney in 1998 or filing any legal

9

motion or pleading. (TT31). No monies were received by the Respondent for referring

the Complainant to the new lawyers in his numerous and various criminal problems.

The assignment of the cash bond was for monies owed to the Respondent. (TT34-

36). The assignment of the cash bond, although notarized, was not an affidavit. The

Complainant and the Respondent both testified that the Respondent was owed

monies. (TT34-36).

10

ISSUES PRESENTED ON APPEAL

ISSUE I WAS IT A REVERSIBLE ERROR FOR REFEREE BRANDT

DOWNEY NOT TO RECUSE HIMSELF AFTER THE

RESPONDENT FILED A TIMELY, SWORN TO AND SUFFICIENT

ON ITS FACE MOTION?

ISSUE II WAS THE PREPARATION OF AN ASSIGNMENT OF A CASH

BOND AN ACT OF PRACTICING LAW?

ISSUE III IS THERE CLEAR AND CONVINCING EVIDENCE THAT THE

RESPONDENT ENGAGED IN THE UNAUTHORIZED PRACTICE

OF LAW AFTER BEING SUSPENDED FEBRUARY 5, 1998?

ISSUE IV FROM A PRACTICAL STANDPOINT, DID THE RESPONDENT

RENDER COMPETENT LEGAL SERVICES TO MR. JIMENEZ?

11

ISSUE V IS THERE CLEAR AND CONVINCING EVIDENCE THAT THE

$3,250.00 FEES CHARGED BY THE RESPONDENT FOR

SERVICES RENDERED TO MR. JIMENEZ WERE EXCESSIVE?

SUMMARY OF ARGUMENT

ISSUE 1 IT WAS REVERSIBLE ERROR FOR THE REFEREE NOT TO

RECUSE HIMSELF.

ISSUE II THE PREPARATION OF THE ASSIGNMENT OF A CASH BOND

WAS NOT AN ACT OF PRACTICING LAW.

ISSUE III THERE WAS NO CLEAR AND CONVINCING EVIDENCE

PRESENTED THAT THE RESPONDENT ENGAGED IN THE

PRACTICE OF LAW WHILE SUSPENDED.

ISSUE IV THE RESPONDENT RENDERED COMPETENT LEGAL SERVICE

TO THE COMPLAINANT.

ISSUE V THE LEGAL FEE OF $3,250.00 WAS REASONABLE.

12

ARGUMENT

ISSUE I

WAS IT A REVERSIBLE ERROR FOR REFEREE BRANDT

DOWNEY NOT TO RECUSE HIMSELF AFTER THE RESPONDENT

FILED A TIMELY, SWORN TO AND SUFFICIENT ON ITS FACE

MOTION?

A Motion For Disqualification should be granted if facts alleged therein, taken

as true, would prompt a reasonably prudent person to fear that he could not get a fair

and impartial judge or hearing officer. Liteky v. U.S., 510 U.S. 540, 114 Supreme

Court 1147, 127 L.Ed 2d 474(1994) Mumez v. Barkman, 645 So 2d 1063 (Fla 1994)

Litigants have right to seek disqualification of presiding judge when they have

objective grounds to believe they will not receive fair consideration at trial or other

judicial proceeding. Puckett v. State, 591 So. 2d 326 (App. 5th 1992).

Every litigant is entitled to nothing less than the cold neutrality of an impartial

judge, and it is the duty of a judge to scrupulously guard this right and refrain from

attempting to exercise jurisdiction in any matter where his qualification to do so is

13

seriously brought in question. Crosby v. State. 97 So. 2d 181 (Fla 1957).

Prejudice of a judge is a delicate question to raise, but, when raised as a bar to

the trial of a cause, if predicated of grounds with a modicum of reason, the judge

against whom raised should be prompt to recuse himself. No judge under any

circumstances is warranted in sitting in the trial of a cause whose neutrality is

shadowed or even questioned. Dickinson v. Parks. 140 So. 459 (Fla 1932)

Allegation of fear of judge’s prejudice, whether positive or negative, need only

be reasonable and may well be, in actuality, ill founded.

Scussel v. Kelly. 152 So. 2d 767 (App. 2nd Dist 1963).

To achieve judge’s disqualification, movant need not prove that judge is actually

prejudiced; motion, and accompanying affidavit are legally sufficient, and

disqualification is mandated, if facts alleged demonstrate merely that movant has well-

grounded fear that he or she will not receive fail trial at hands of a judge. Rucks v.

State.692 So. 2d 976 (App. 2nd Dist. 1997). As this Honorable Court noted in

Supreme Court Case No. 85-274 a Referee’s findings of fact carry a presumption of

correctness. That’s even greater reason why The Florida Bar Rules of Discipline 3-

76(g)(8), The Florida Bar Judicial Administration Rules 2.160(c) and (d) and Florida

Statute 38.10 should be obeyed. The refusal to recuse was reversible harmful error.

14

ISSUE II

WAS THE PREPARATION OF AN ASSIGNMENT OF A CASH

BOND AN ACT OF PRACTICING LAW?

The Referee relies on three cases to conclude the issue in the affirmative. State

Ex Bel Florida Bar v. Speery. 140 So 2d 587, (Fla 1962), involved an un-licensed

individual practicing patent law and displaying a sign outside his office as a “Patent

Attorney.”

The Florida Bar v. Howard 306 So. 2d 515 (Fla 1990), involved a suspended lawyer

making court appearances as counsel, signing a summons and filing a Petition For

Modification of Final Judgment for an ex-client. In the Florida Bar v. Jones, 571 So

2d 426 (Fla 1990) involved a suspended lawyer who attended court hearings, signed

a summons and filed a petition For Modification of Final Judgment while suspended.

Here the Respondent was owed money. The Complainant admitted he owed

money to the Respondent. The assignment of a cash bond, although notarized, is not

an affidavit. It is no different than a promissory note or a conveyance

15

The Respondent had every right to collect a debt.

ISSUE III

IS THERE CLEAR AND CONVINCING EVIDENCE THAT THE

RESPONDENT ENGAGED IN THE UNAUTHORIZED PRACTICE OF

LAW AFTER BEING SUSPENDED FEBRUARY 5, 1998?

The Florida Bar alleges in its complaint that the Respondent engaged in the

unauthorized practice of law by doing the following:

(1) representing Mr. Jimenez on a stalking charge in Hillsborough County in April,

1998;

(2) representing Mr. Jimenez in regaining his drivers license in January, 1998;

(3) representing Mr. Jimenez in a suspended license charge in Hillsborough County

in February, 1998;

(4) attempting to hire a lawyer for Mr. Jimenez in an immigration matter in April,

1998;

(5) receiving an assignment in May, 1998 for monies owed to Respondent.

16

(1) Stalking Charge

There was no evidence presented on this theory at all. Public Defender

John Benito represented Mr. Jimenez. The Respondent never appeared

for Mr. Jimenez nor gave any legal advice to him on this charge. Mr.

Jimenez never said the Respondent advised him or represented him on

this charge at all.

(2) Securing a Drivers License

The driving record of Mr. Jimenez alone disputes this theory. Mr.

Jimenez and the Respondent both testified that they took an entire day

and traveled to various counties, including Polk county in Bartow,

Florida and obtained various D-6 clearances. The Florida Bar contends

this was accomplished in 1998 while Resident was suspended. Mr.

Jimenez doesn’t remember when it was accomplished. Yet the driving

record of Mr. Jimenez indicates that he was suspended in February, 1998

and is still suspended. That is why the Respondent referred the

Compliant in February, 1998 to Ed McFadden, Esq., i.e. to handle a

suspended license charge he received some months prior.

Further, in order to receive a D-6 clearance one must pay a ticket or set

a new court date. Both the Respondent and Mr. Jimenez testified that

they went to Bartow, Florida and paid monies and received a D-6

17

clearance. There was no testimony from either party as to a court

appearance. There is no record of a later Bartow conviction. A judge

cannot make a finding of guilt in absentia at an arraignment. Thus, the

ticket had to have been paid to receive a D-6 clearance. The Polk

County D-6 clearance had a conviction date of September 19, 1996, long

before the Respondent’s suspension.

Assuming arguendo that the Respondent drove the Complainant to the

Motor Vehicle Department in 1998, can a lawyer take an eye test, a

written test or a driving test for a client? If driving someone to get a

license is practicing law, then every mother or father who drives their

sixteen year old son or daughter to get a license is practicing law as well.

(3) Representing Mr. Jimenez in a Suspended License Charge in

Hillsborough County in February, 1998.

The Respondent referred Ed McFadden, Esq. to handle a suspended

license charge Mr. Jimenez received in late 1997.

Respondent told Ed McFadden, Esq. , that he was suspended. Mr.

McFadden testified that the Respondent told him of the suspension and

that he probably told Mr. Jimenez about the suspension. Mr. Jimenez

said he was unsure but stated the Respondent indicated he could not

handle that case. The Respondent accepted no fees for the referral.

18

The Respondent did not give any legal advice on the suspended license

charge nor did he attend any hearings or enter any legal appearances on

behalf of Mr. Jimenez. Mr. Jimenez and Ed McFadden, Esq. both

corroborated those facts.

Respondent indicated he could not handle that case. The Respondent

accepted no fees for that referral. The Respondent did not give any legal

advice on the suspended license charge nor did he attend any hearings or

enter any legal appearances on behalf of Mr. Jimenez. Mr. Jimenez and

Ed McFadden, Esq. both corroborated those facts.

Here the Respondent was just beginning his two year suspension and did

the right and proper thing. He did not engage in the practice of law. The

Respondent and Mr. Jimenez were friends. A suspended lawyer has the

right to refer or hire a lawyer for someone else. The Respondent felt like

it was the moral thing to do as opposed to completely abandoning a

former client.

(4) Attempting to Hire an Immigration Lawyer for Mr. Jimenez.

When Mr. Jimenez was arrested in May, 1998 on new drug charges in

Hillsborough County, Mr. McFadden represented Mr. Jimenez at a bond

hearing. Mr. Jimenez and Mr. McFadden both indicated to the

Respondent via phone that an immigration hold was placed on Mr.

19

Jimenez. The Respondent did not attend the bond hearing nor did he

render any advice to Mr. Jimenez on the Hillsborough drug charges. This

is corroborated by Mr. Jimenez and Mr. McFadden. The Respondent

indicated to both Mr. Jimenez and Mr. McFadden that he was suspended

and didn’t have any knowledge of immigration law but offered to find the

names of immigration lawyers and refer them to both parties. Again, the

Respondent took no fees nor did he advise Mr. Jimenez on any aspects

of immigration law. He did not engage in the unauthorized practice of

law by referring a list of immigration lawyers to Mr. Jimenez or his

counsel Ed McFadden, Esq.

(5) Receiving an Assignment in May, 1998 for Monies Owed to Respondent

The assignment of a cash bond is hardly a legal act requiring the presence

of a licensed attorney. Every day millions of Americans transfer, sign

and assign stocks, bonds, checks, etc. in the course of business. If such

an act requires a licensed practicing attorney as The Florida Bar suggests,

then two hundred million people are practicing law without a license.

Even assuming arguendo that such an act is “practicing law,” can a

suspended lawyer represent himself? The answer is most definitely.

Here the Respondent went to collect a debt. The Respondent guaranteed

a bond and the premium for the cousin of Mr. Jimenez. This was

20

corroborated by bail bondsman R. Rosenberg and Mr. Jimenez. All

parties and every witness agreed that Mr. Jimenez owed the Respondent

monies. There was no legal advice or counsel given to Mr. Jimenez. The

balance of the assignment was for legal fees rendered in 1997.

ISSUE IV

IS THERE CLEAR AND CONVINCING EVIDENCE THAT THE $3,250.00

FEES CHARGED BY THE RESPONDENT FOR SERVICES RENDERED

TO MR. JIMENEZ WERE EXCESSIVE?

Mr. Jimenez stated in his original complaint that he tendered $2,500.00 to the

Respondent in 1997, all in various cash payments. This was acknowledged by the

Respondent. Mr. Jimenez also stated he assigned a cash bond of $1,500.00 to the

Respondent, $750.00 of which was to pay a debt he incurred to bail bondsman Neil

Rosenberg. There is a dispute as to the other $750.00, Mr. Jimenez claiming it was to

go to his mother and the Respondent claiming it was past due for legal fees rendered

in 1997. Therefore, the total fee paid to Respondent were $3,250.00.

It was admitted by the Respondent and Mr. Jimenez that an entire day was

spent regaining his driver’s license. This will be estimated at eight hours. The

Respondent traveled to Lake City, Florida twice. The first time was in May, 1997 to

read the arrest affidavits, information, and view the scene of the arrest. Counting

7The Respondent remembers this trip because he continued on to Tallahassee for a FloridaState Football game.

8Despite his own complaint and testimony by Mr. Jimenez, The Florida Bar stated in theircomplaint that the Respondent was paid $5,250.00.

21

driving time and doing the aforementioned legal research the Respondent incurred a

minimum of eight hours (3 hours driving each way). There were also hotel expenses

and gasoline costs. The Respondent traveled a second time to Lake City, Florida for

a scheduled Motion To Suppress Hearing, sometime in November or December,

19977.

The purpose of the trip was to learn more about the case since discovery was

completed, i.e. the depositions were taken in the fall of 1997. The trip also provided

the Respondent an opportunity to observe Martin Page, Esq., the court appointed

attorney for Mr. Jimenez. This was crucial in the Respondent’s determination of

whether or not he would enter as attorney of record. This second trip involved

another eight hours. The Respondent also had phone conversations with Mr. Jimenez,

Martin Page, Esq., the clerks office in Lake City, Florida and spent several hours

discussing trial strategy and appellate remedies with Mr. Jimenez. This conservatively

estimated at 5 hours. Thus, the Respondent spent 37 hours on behalf of Mr. Jimenez.

At $250.00 per hour, total legal fees would be estimated at $9,250.00, almost

three times the amount paid by Mr. Jimenez.8 There is no possible argument that the

total fees of $3,250.00 were excessive.

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ISSUE V

FROM A PRACTICAL STANDPOINT, DID THE RESPONDENT RENDER

COMPETENT LEGAL SERVICES TO MR. JIMENEZ?

The Respondent was excellent in the rendition of legal services to Mr. Jimenez. He

obtained his driver’s license and based on an hourly fee of $250.00 the costs of that

service was $2,000.00. Thus, for $1,250.00 Mr. Jimenez received advice that resulted

in a lesser included misdemeanor plea to two felony controlled substance violations

(methamphetamine and cocaine). In addition, this misdemeanor charge was pled some

three years after Mr. Jimenez was arrested and after he pled out to six years on

Hillsborough drug charges. This resulted in a lower score sheet for prior convictions

in the Hillsborough drug case. Finally, he received credit for time served on the Lake

City, Florida charges.

Mr. Jimenez paid nothing for the services of Martin Page, Esq. He received no

fines, probation or jail time on two felonies. The Florida Bar suggests that the

Respondent should have entered as attorney of record. The record reveals 100 status

hearings over a three year period. If the Respondent had to attend all of those hearings

as the attorney of record, legal fees would be in excess of $150,000.00.

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The Respondent made the decision that Mr. Jimenez should remain with his

court appointed attorney, Martin Page, Esq. The Respondent saved him a lot of legal

fees by not entering as attorney of record. If a bad result occurred the Respondent

was committed to act as his appellate counsel. Mr. Jimenez was advised of his

excellent chances in a suppression hearing and his appellate remedies. Mr. Jimenez’s

testimony corroborates such advice given by the Respondent. The Respondent

doesn’t believe the Complainant could have come out any better than he did.

CONCLUSION

The recommendation of the Referee should be reversed and quashed.

Respectfully submitted,

Robert A. Boland, EsquireAttorney for RespondentP.O. Box 172431Tampa, Florida 33672-0431Florida Bar No. 281476(813) 832-5189

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Certificate of Service

I hereby certify that a true and correct copy of the foregoing has been sent to

The Florida Bar, Debra Davis, Esq., Tampa Airport Marriott Hotel, Tampa, Florida,

by U.S. Mail on the 10th day of July, 2003.

Robert A. Boland, EsquireAttorney for RespondentP.O. Box 172431Tampa, Florida 33672-0431Florida Bar No. 281476(813) 832-5189

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Certificate of Compliance

I hereby certify that the Brief of the Respondent complies with the font

requirements of Rule 9.210(2).

Robert A. Boland, Esq.P.O. Box 172431Tampa, Florida 33672-0431Florida Bar No. 281476(813) 832-5189

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