IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court CaseBy 9No. SC11-1863 T

Complainant, ?The Florida Bar File

v. No. 2010-50,750 (09B)

RUSSELL SAMUEL ADLER,

Respondent.

INITIAL BRIEF

Kenneth H. P. Bryk, Bar CounselThe Florida BarThe Gateway Center1000 Legion Place, Suite 1625Orlando, Florida 32801-1050(407) 425-5424Florida Bar No. 164186kbryk@flabar.org

Kenneth Lawrence Marvin, Staff CounselThe Florida Bar651 East Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. 200999kmarvin@flabar.org

John F. Harkness, Jr., Executive DirectorThe Florida Bar651 East Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. 123390jharkness@flabar.org

TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................... iTABLE OF CITATIONS.......................................................................................... iiPRELIMINARY STATEMENT................................................................................1STATEMENT OF THE CASE..................................................................................2S AOTTEMENT F THE FACTS................................................................................4SUMMARY OF ARGUMENT .................................................................................7ARGUMENT .............................................................................................................9SSUEI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ENGAGING IN A PATTERN OF MISREPRESENTATIONS WARRANTSTHE IMPOSITION OF A 91 DAY SUSPENSION IN LIGHT OF THEAGGRAVATING FACTORS PRESENT

C CSONLU ION........................................................................................................26CERTIFICATE OF SERVICE.................................................................................27CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN........28

1

TABLE OF CITATIONS

Page No.

Cases

The Florida Bar v. Baker, 810 So. 2d 876 (Fla. 2002).............................................. 7The Florida Bar v. Bennett, 276 So. 2d 481 (Fla. 1973)......................................... 23The Florida Bar v. Brown, 790 So. 2d 1081 (Fla 2001)......................................... 20The Florida Bar v. Brown, 905 So. 2d 76 (Fla. 2005)....................................... 18, 23The Florida Bar v. Corbin, 701 So. 2d 334 (Fla. 1997).......................................... 20The Florida Bar v. Draughon, 94 So. 3d 566 (Fla. 2012)......................................... 8The Florida Bar v. Gwynn, 94 So. 3d 425 (Fla. 2012).............................................. 9The Florida Bar v. Hall, 49 So. 3d 1254 (Fla 2010)................................................. 7The Florida Bar v. Herman, 8 So. 3d 1100 (Fla. 2009)..................................... 16, 22The Florida Bar v. Korones, 752 So. 2d 586 (Fla. 2000).......................................... 8The Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983).............................................. 24The Florida Bar v. Nuckolls, 521 So. 2d 1120 (Fla 1988)..................................... 21The Florida Bar v. Renke, 977 So. 2d 579 (Fla. 2008)........................................... 18The Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2002).......................................... 7The Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003)........................................ 22The Florida Bar v. Schultz, 712 So. 2d 386 (Fla. 1998)................................... 10, 16The Florida Bar v. Shankman, 41 So. 3d 166 (Fla. 2010)....................................... 11The Florida Bar v. Shapiro, 456 So. 2d 452 (Fla. 1984)......................................... 22The Florida Bar v. Siegel, 511 So. 2d 995 (Fla. 1987)........................................... 21The Florida Bar v. Smith, 866 So. 2d 41 (Fla. 2004).............................................. 11The Florida Bar v. Valentine-Miller, 974 So. 2d 333 (Fla 2008)........................... 24The Florida Bar v. Webster, 662 So. 2d 1238 (Fla 1995)...................................... 14The Florida Bar v. Wilson, 425 So. 2d 2 (Fla. 1983)................................................ 9The Florida Bar v. Yonker, 37 Fla. Law Weekly S545 (Fla. Sept. 6, 2012)..... 17, 23

Rules

3-4.1........................................................................................................................... 73-4.3........................................................................................................................... 24-1.5(f)(5).................................................................................................................. 24-8.4(a)...................................................................................................................... 2

11

4-8.4(c)................................................................................................................ 2, 16

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PRELIMINARY STATEMENT

The Complainant, The Florida Bar, is seeking review of a Report of Referee

recommending a thirty day suspension with automatic reinstatement to the practice of

law.

Complainant will be referred to as The Florida Bar, or as the bar. Russell

Samuel Adler, Respondent, will be referred to as respondent throughout this brief.

References to the Report ofReferee shall be by the symbol RR followed by the

appropriate page number.

References to specific pleadings will be made by title. Reference to the transcript

ofthe final hearing are by symbol TR, followed by the date ofthe hearing, followed by

the appropriate page number. (e.g., TR August 16, 2012, p. 289).

References to Bar exhibits shall be by the symbol TFB Ex followed by the

appropriate exhibit number (e.g., TFB Ex. 10).

1

STATEMENT OF THE CASE

On August 8, 2011, the Ninth Judicial Circuit Grievance Committee "B" voted

to find probable cause in this matter. On September 21, 2011, The Florida Bar served

its Complaint and on October 6, 2011, this Court issued its order to the ChiefJudge of

the Fifteenth Circuit to appoint a referee within two weeks. The referee was appointed

on October 11, 2011. The final hearing was held on August 16, 2012 and the hearing

as to sanctions on September 13, 2012. The referee issued her report on October 2,

2012. The referee found respondent guilty ofviolating the following Rules Regulating

The Florida Bar: 3-4.3 for committing and act that was unlawful or contrary to

honesty and justice; 4-1.5(f)(5) for failing to ensure his law firm's settlement

statements in personal injury cases were executed by all participating lawyers, as well

as the client; 4-8.4(a) for violating or attempting to violate the Rules of Professional

Conduct, or for knowingly assisting or inducing another to do so, or for doing so

through the acts ofanother; and 4-8.4(c) for engaging in conduct involving dishonesty,

fraud, deceit, or misrepresentation. The referee recommended respondent be suspended

from the practice of law for a period of thirty days, with automatic reinstatement, and

pay costs then totaling $3,671.75.

2

The Executive Committee of the Board of Governors of The Florida Bar

considered the Report of Referee and voted to seek review of the referee's

recommendation as to a thirty day suspension The Executive Committee voted to seek

imposition ofa ninety-one day suspension with proofofrehabilitation required prior to

reinstatement. The Florida Bar filed its Notice of Intent to Seek Review ofReport of

Referee on November 13, 2002. The bar filed its First Amended Statement of Costs

reflecting the transcript costs on December 12, 2012.

3

STATEMENT OF THE FACTS

Respondent was employed as an attorney by the law firm of Rothstein

Rosenfeldt Adler (hereinafter referred to as the "firm"), from February 1, 2005 until its

dissolution on or about November 1, 2009 (RR p. 2). From its inception and until its

dissolution, named partners Scott Walter Rothstein and Stuart Alan Rosenfeldt were

the only equity shareholders in the firm (RR p. 2). At or about the time that respondent

joined the firm in February 2005, Mr. Rothstein advised respondent that he would

receive equity shares in the firm if respondent met certain goals (RR p. 2). Despite his

use of the title "Shareholder" and being designated as the vice-president for the firm,

respondent repeatedly testified under oath that he never received any equity shares in

the firm (RR p. 2).

While employed by the firm, in or about August 2009, respondent purchased a

cooperative apartment in New York City for which he obtained one hundred percent

financing from Mr. Rothstein and/or entities created and funded by Mr. Rothstein (RR

p. 3). Respondent borrowed funds and signed a promissory note and mortgage for a

loan that represented approximately ninety percent of the purchase price (RR p. 3).

Respondent took a payroll advance from the firm for the remaining ten percent of the

purchase price for which he also signed a promissory note (RR p. 3) Respondent

4

believed that the cooperative apartment board had a policy not to approve the purchase

of a cooperative apartment where one hundred percent of the purchase price was

financed (RR p. 3). Although respondent disclosed to the cooperative apartment board

that he had borrowed ninety percent of the purchase price from Mr. Rothstein and/or

entities created and funded by Mr. Rothstein, he did not disclose that he had borrowed

the remaining ten percent ofthe purchase price by taking the payroll advance for which

respondent had signed a promissory note (RR p. 3). The payroll advance was another

loan (RR p. 3). Further, respondent advised Frank Veilson, a real estate broker

involved in the purchase of the cooperative apartment, and the cooperative apartment

board through Mr. Veilson, during a telephone conversation and in an electronic mail

message that respondent had a twenty percent equity share in the firm (RR pp. 3-4).

Although respondent subjectively, at that time, believed he was entitled to have the

equity share, he knew that he did not have any equity in the firm (RR pp. 3-4).

Respondent's assertions were untrue (RR p. 4). Respondent admitted under oath that he

never had any equity shares in the firm either when he communicated with Mr. Veilson

or at any other time (RR p. 4). In an electronic mail message, respondent asked Mr.

Rothstein to direct Irene Stay, the ChiefFinancial Officer for the firm, to issue a letter

to the cooperative apartment board that misrepresented the financial status of

respondent in the firm as a shareholder, respondent's finances and respondent's access

5

to additional funds (RR p. 4). The letter, which contained excerpts from respondent's

electronic mail message, was issued by Ms. Stay to the cooperative board (RR p. 4).

Finally, while respondent was employed by the firm, he was the supervisor of

the firm's tort litigation practice group (RR p. 4). During respondent's entire tenure

managing the firm's tort litigation practice group, approximately four years, neither

respondent nor any other attorney who participated in personal injury cases litigated by

the firm executed the client settlement statements as required by the Rules Regulating

The Florida Bar. In fact, none of the settlement statements prepared by respondent's

department contained a space or line for an attorney to sign the settlement statement.

Respondent testified that he was responsible for supervising the attorneys in his group

and for reviewing the settlement statements (RR p. 4).

6

SUMMARY OF ARGUMENT

In connection with his purchase of a cooperative apartment in New York City,

respondent intentionally made two material misrepresentations and one intentional

misrepresentation by omission. Furthermore, he caused a third person to make a

misrepresentation ofmaterial fact. In addition, respondent, a long time personal injury

law practitioner and manager ofhis firm's personal injury practice department, failed

to ensure the firm's settlement statements, which he prepared and/or routinely

reviewed, complied with the Rules Regulating The Florida Bar.

Recently, this Court addressed the discipline of an attorney for his private

conduct which involved fraud. "Although Draughon was acting on behalf ofhis own

corporation, and not as a lawyer representing a client in a transaction, he is nonetheless

a member of The Florida Bar and subject to the disciplinary authority of this Court.

See R. Regulating Fla. Bar 3-4.1. The Court expects members of the Bar 'to conduct

their personal business affairs with honesty and in accordance with the law.' Fla. Bar v.

Hall, 49 So. 3d 1254, 1261 (Fla. 2010)(quotingFla. Bar v. Baker, 810 So. 2d 876, 882

(Fla. 2002). Moreover, we have consistently stated that basic fundamental dishonesty is

a serious flaw, one which cannot be tolerated by a profession that relies on the

truthfulness of its members. Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002)

7

(citing Fla. Bar v. Korones, 752 So. 2d 586, 591 (Fla. 2000))." The Florida Bar v.

Draughon, 94 So. 3d 566, 571 (Fla. 2012). A course ofconduct consisting ofdeliberate

fraud mandates a suspension of ninety-one days with proof of rehabilitation prior to

reinstatement, especially in light ofthe pattern ofmisconduct, respondent's significant

experience in the practice of law and the existence of a selfish motive.

8

ARGUMENT

ISSUE

ENGAGING IN A PATTERN OF MISREPRESENTATIONSWARRANTS THE IMPOSITION OF A 91 DAY SUSPENSION INLIGHT OF THE AGGRAVATING FACTORS PRESENT

The standard for review ofa referee's recommendation as to discipline is broader

than that afforded to the factual findings because this Court has the ultimate

responsibility for imposing the appropriate sanction. The Florida Bar v. Gwynn, 94 So.

3d 425, 432 (Fla. 2012). In general, however, this Court does not disturb a referee's

recommendation as to discipline if it has a reasonable basis in case law and the Florida

Standards for Imposing Lawyer Sanctions. Gwynn, 94 So. 3d at 432. When choosing

to increase the discipline recommended by a referee, this Court has stated that "if the

discipline does not measure up to the gravity of the offense, the whole disciplinary

process becomes a sham to the attorneys who are regulated by it." The Florida Bar v.

Wilson, 425 So. 2d 2, 4 (Fla. 1983). The discipline recommended by the referee in this

case does not measure up to the gravity of respondent's misconduct and, based upon

the case law and applicable standards, should be increased to a rehabilitative

suspension. Respondent's intentional pattern of misrepresentations for a personal

9

pecuniary purpose warrants the imposition of a suspension requiring proof of

rehabilitation.

Respondent admitted that he deliberately misrepresented his equity interest in his

law firm in order to achieve his objective of buying a cooperative apartment unit in

New York City (TFB Ex. 19 pp. 6, 12). Respondent made the misrepresentations

because he believed the cooperative apartment board might not otherwise have

approved his purchase, especially in light ofrespondent's credit problems and the fact

that he was obtaining one hundred percent financing (TR August 16, 2012 pp. 111-

112, 114; TFB Ex. 21 p. 23). Respondent furthered his misrepresentations by

telephonic and electronic mail message communications in which he repeatedly lied

about his equity interest in his law firm (TFB Ex. 6). He intentionally misrepresented

his wife's income from her business in order to present a more desirable financial

picture to the cooperative board because he knew his overall financial situation was a

concern and could negatively affect the cooperative board's decision to approve the

purchase (TR August 16, 2012 p. 11; TFB Ex. 5). Respondent intentionally engaged in

active misrepresentations in order to achieve his purchase of the property he desired.

Engaging in conduct involving dishonesty, misrepresentation, fraud, or deceit

where the fraudulent misrepresentations are not made to the court warrants suspension

from the practice of law. The Florida Bar v. Schultz, 712 So. 2d 386, 388 (Fla. 1998).

10

Intent is a necessary element to prove and this may be accomplished by showing the

conduct was deliberate or knowing. The Florida Bar v. Shankman, 41 So. 3d 166, 173

(Fla. 2010). An attorney's motive is not a determinative factor. The Florida Bar v.

Smith, 866 So. 2d 41, 46 (Fla. 2004). Clearly respondent's actions were deliberate and

knowing. Respondent testified that he was aware the cooperative board would allow

ninety percent financing (TR August 16, 2012 pp. 111-112) but believed it would not

permit the purchase ifhe was receiving one hundred percent financing (TFB Ex. 21 p.

23). He further testified that he "really wanted to not miss this opportunity" (TFB Ex.

20 p. 102) to purchase the cooperative apartment because, as his wife testified, they

were getting the cooperative apartment for a good price (TR, August 16, 2012 p. 66).

Respondent testified that he asked Mr. Rothstein for a "loan" to purchase the

cooperative apartment because respondent's credit rating was too low to qualify for a

conventional loan on what would be considered a second home (TFB Ex. 20 p. 102).

Respondent knew his debt to income ratio was too high and thus could present an

obstacle to achieving his objective (TFB Ex. 20 p. 102).

In his November 23, 2009 deposition (TFB Ex. 19), respondent admitted under

oath that he knew he was not an equity partner in his law firm (TFB Ex. 19 p. 12).

Respondent gave this testimony only a few months after he closed on the purchase of

the cooperative apartment in August 2009. He completed his application for the

11

purchase on May 20, 2009 (TFB Ex. 3), in which he affirmatively stated that he was a

"shareholder" in the law firm. Between the date he submitted this application and the

sale was finalized, he engaged in a series of communications with Frank Veilson, the

real estate broker who assisted respondent with the application process (TR August 16,

2012 p. 26) in which respondent made misrepresentations for the specific purposes of

deceiving both Mr. Veilson and the cooperative apartment board so that respondent's

application for the purchase would be approved by the board. Respondent

misrepresented to Mr. Veilson that he was a twenty percent equity owner in his law

firm (TFB Ex. 5). Yet respondent admitted in his deposition of November 23, 2009

that he knew within a few years of starting work for the firm in February 2005 (TFB

Ex. 19 p. 6) that he was not going to be receiving the promised shares in the firm (TFB

Ex. 19 p. 12). Respondent decided not to pursue the matter because his compensation

was satisfactory (TFB Ex. 19 p. 12). Respondent's only reason for leading Mr. Veilson

and the cooperative apartment board to believe he was an equity shareholder in his law

firm was to the board would approve his application to purchase the apartment for a

great price.

Respondent also misrepresented to Mr. Veilson and the cooperative apartment

board his wife's income from her business. In his electronic mail message to Mr.

Veilson ofJune 30, 2009, respondent stated that his wife's earnings from her business

12

were sufficient to "defray all ofher personal expenses, in addition to some household

expenses." (TFB Ex. 5). Respondent's wife testified that her business earned no

income between 2007 and 2009 and that she took no salary during this time period (TR

August 16, 2012 pp. 60-61, 70).

Not only did respondent actively misrepresent his ownership interest in his law

firm and his wife's income, he failed to make either Mr. Veilson or the cooperative

apartment board aware that he also was financing the down payment. Mr. Veilson

testified that neither he nor the board were aware that respondent was obtaining one

hundred percent financing (TR August 16, 2012 p. 48). Mr. Veilson further testified

that this fact was not apparent from a review ofrespondent's cash assets. According to

Mr. Veilson, respondent advised that the reason his personal checking account no

longer contained a large amount of cash was due to the fact that respondent had paid

the ten percent down payment from his checking account, thus depleting his cash

reserves (TR August 16, 2012 p. 48). Furthermore, in his electronic mail message of

June 30, 2009 (TFB Ex. 6), respondent affirmatively told Mr. Veilson, in response to

Mr. Veilson's inquiries concerning respondent's finances and liquidity, that he could

"easily increase" the cash balance in his checking account "at any time." Mr. Veilson

testified that this particular cooperative apartment board did not approve purchasers

who needed one hundred percent financing (TR August 16, 2012 p. 47) and that the

13

board wanted to ensure that a buyer would have the financial ability to maintain the

apartment after the purchase (TR August 16, 2012 p. 28). Had either Mr. Veilson or

the cooperative board been aware of the one hundred percent financing, further

inquiries of respondent would have been made (TR August 16, 2012 p. 118). No one

asked respondent if he was financing the down payment and respondent did not

volunteer this information. This Court has held that an attorney may be found guilty of

making a misrepresentation by omission of a material fact necessary to correct what

would be an obvious misapprehension by another party. The Florida Bar v. Webster,

662 So. 2d 1238, 1240 (Fla. 1995). Given the fact that respondent was aware that

obtaining one hundred percent financing was material to the cooperative board, he

should have brought this fact to the attention ofeither Mr. Veilson or the cooperative

board. Instead, he stood silent.

Respondent also caused a third party, Irene Stay, the ChiefFinancial Officer of

his law firm, to issue a letter to the cooperative board containing false statements.

Respondent asked Mr. Rothstein for a statement from the law firm attesting to

respondent's equity interest (TFB Ex. 8; TFB Ex. 11), an interest they both knew that

respondent did not possess. He gave Mr. Rothstein a proposed letter in an electronic

mail message for Ms. Stay to sign specifically stating that "Russell S. Adler is a 20%

equity Shareholder" in the law firm (TFB Ex. 11). Although Ms. Stay did not use this

14

exact letter authored by respondent, she signed a similar one that stated respondent

"holds the position of Shareholder." (TFB Ex. 12). The bar submits that respondent

gave this letter to the cooperative board with the expectation that it would rely upon it

in deciding whether to grant his application for purchase.

Respondent intentionally perpetrated a fraud and requested and caused an

employee ofhis law firm to make a fraudulent statement, solely to satisfy his desire to

buy a cooperative apartment in New York City for a good price. As a long time

practitioner, respondent understood the potential ramifications of his actions. He

simply believed that he would not be caught. Further, respondent's cavalier attitude

toward his failure to properly ensure his law firm's forms, that respondent created,

complied with the Rules Regulating The Florida Bar is troubling. This was not a mere

oversight. It was a long standing problem that affected every personal injury case

where respondent's law firm prepared a settlement statement. The lack of client harm

is not the issue. The issue is respondent's dereliction of his supervisory duties.

Respondent's avarice and lack ofattention to detail cast serious doubt on his fitness as

an attorney.

Based upon respondent's testimony and Memorandum ofRespondent Adler as

to Discipline, it is clear that respondent was merely sorry that he got caught. In his

testimony at the final hearing in this matter, respondent repeatedly attempted to justify

15

his misrepresentation to Mr. Veilson as to his equity ownership in his law firm as being

based on his belief that he was entitled to the equity shares. In his Memorandum as to

Discipline, respondent excused his deceit and misrepresentation as merely reflecting

that "he had equitable title but not legal title to the shares." This diminishing language

reflected an arrogance and complete lack ofunderstanding ofrespondent's obligation

to be truthful and not engage in engage in conduct involving dishonesty, fraud, deceit,

or misrepresentation as prohibited by rule 4-8.4(c) ofthe Rules Regulating The Florida

Bar.

In recent years, this Court has moved toward stronger sanctions for attorney

misconduct. The Florida Bar v. Herman, 8 So. 3d 1100, 1108 (Fla. 2009). Engaging in

conduct involving dishonesty, misrepresentation, fraud or deceit where the fraudulent

misrepresentations were not made to a court warrants a suspension. The Florida Bar v.

Schultz, 712 So. 2d 386, 388 (Fla. 1998). Clearly, a suspension is warranted here and

the issue to be determined is whether proof of rehabilitation is warranted given the

facts, mitigating factors and aggravating factors that are present. Respondent engaged

in a pattern of active misrepresentations in order to achieve his purchase of the

property he desired, intentionally omitted material information from his application

necessary for the board to make an informed decision concerning his application, and

caused a third person to make a misrepresentation. In addition, respondent, an

16

experienced practitioner who was responsible for supervising his law firm's tort

litigation department, negligently permitted his law firm to use a settlement statement

that clearly violated the Rules Regulating The Florida Bar.

In The Florida Bar v. Yonker, 37 Fla. Law Weekly S545 (Fla. Sept. 6, 2012), a

combined case against two attorneys, Mr. Yonker received a sixty day suspension for

engaging in conduct involving misrepresentation, solicitation, criminal acts, and the

direction ofa nonlawyer to engaged in solicitation. His partner, Mr. Winters, received

a ninety-one day suspension. Mr. Winters' only additional act of misconduct was his

use of a third attorney's name on the letterhead of their new firm despite being aware

the third attorney had not joined the new partnership. Both attorneys made secret plans

to leave their employing law firm and to open their own practice, taking with them

clients of their employing firm. The two attorneys, personally and through a former

nonlawyer employee of the firm, solicited clients prior to leaving the firm, stole the

firm's client files, and made misrepresentations to the firm's clients. This Court found

the attorneys' personal use of their former employer's client files constituted acts of

criminal theft. Respondent's actions similarly encompassed dishonest misconduct for

the purpose of personal gain. Unlike Mr. Winters and Mr. Yonker, however,

respondent did not engage in any criminal misconduct. In mitigation ofMr. Yonker's

misconduct, however, was the fact that ten years passed between the time the

17

misconduct occurred and the bar's disciplinary proceedings were able to go forward.

During the intervening time, Mr. Yonker had no further disciplinary matters and,

similar to respondent, had no prior disciplinary record. Mr. Winters did have a

disciplinary history, unlike respondent. The report ofreferee for the case indicated that

Mr. Winters received an admonishment for minor misconduct in 2005.

In The Florida Bar v. Renke, 977 So. 2d 579 (Fla. 2008), this Court approved a

conditional guilty plea for consent judgment for a thirty day suspension from the

practice of law, with automatic reinstatement, for making misrepresentations in his

campaign brochures and materials and for accepting $95,800.00 in unlawful campaign

contributions. Judge Renke was removed from the bench. Judge Renke had more

mitigating factors present than in respondent's case. Judge Renke had no prior

disciplinary record, enjoyed a good character or reputation, there was an unreasonable

delay in the disciplinary proceedings, there was the imposition of other penalties or

sanctions, and he was remorseful. Similarly, respondent has no prior disciplinary

history and expressed remorse. In aggravation, Judge Renke, similar to respondent, had

a dishonest or selfish motive and there were multiple offenses.

In The Florida Bar v. Brown, 905 So. 2d 76 (Fla. 2005), an attorney was

suspended for six months, with proofofrehabilitation required prior to reinstatement,

for intentionally double pledging a certificate ofdeposit as security. A mechanic's lien

18

had been filed against property Mr. Brown was developing through a company he

owned with his wife and that was unrelated to his law practice. Mr. Brown initially

represented to a licensed surety company he contacted about issuing a mechanic's lien

discharge bond that a particular certificate ofdeposit would serve as full cash collateral

for the bond. Mr. Brown represented himself to the surety company as a licensed

attorney and, based on his representations, it issued the bond. Within one week, Mr.

Brown made a second pledge of the same certificate of deposit in connection with a

security agreement for the benefit of his law firm. Mr. Brown intentionally kept the

second pledge of the collateral a secret from the surety company. The security

agreement provided that his law firm would have priority over all other claims of

interest to the certificate ofdeposit by any other creditors ofhis development company.

Ultimately, the surety company suffered a loss as a result of the judgment entered in

the breach of contract case that was filed and Mr. Brown's law firm benefitted at the

expense ofthe surety company. This Court found that an attorney's ethical obligation

of honesty was not bounded by contractual obligations and that Mr. Brown's

misrepresentations were intentional. In aggravation, Mr. Brown had a prior disciplinary

history, had a selfish motive, had substantial experience in the practice of law, and was

indifferent to making restitution to the surety company. In mitigation, he enjoyed a

good reputation and had a lengthy and distinguished record of charitable and

19

philanthropic involvement in the community as well as having provided significant

amounts legal pro bono work. Although fewer aggravating factors were present in

respondent's case, respondent's actions were similar to Mr. Brown's in that they were

intentional. Both respondent and Mr. Brown were experienced practitioners who

understood their ethical obligations as members of The Florida Bar.

In The Florida Bar v. Brown, 790 So. 2d 1081 (Fla. 2001) an attorney was

suspended for ninety days, with automatic reinstatement, for engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation, by assisting his client in a

campaign contribution reimbursement scheme. There were significantly more

mitigating factors present in Mr. Brown's case than in respondent's. Mr. Brown had no

prior disciplinary record, he made a full and free disclosure, he was cooperative, he

suffered additional negative consequences, he exhibited "deep remorse," and he had an

excellent reputation in his community. Unlike respondent, however, Mr. Brown's

misconduct involved a client.

In The Florida Bar v. Corbin, 701 So. 2d 334 (Fla. 1997), an attorney received a

ninety day suspension, with automatic reinstatement, for misrepresenting material facts

to the court by submitting an affidavit he knew was false and for misleading the bar by

making a misstatement in his initial response to the bar's investigative inquiry. Unlike

respondent, Mr. Corbin's misrepresentation was not an ongoing pattern of conduct.

20

Similar to respondent, however, Mr. Corbin's misconduct was designed to benefit

himself.

In The Florida Bar v. Nuckolls, 521 So. 2d 1120 (Fla. 1988), an attorney was

suspended for ninety days, with automatic reinstatement, for his involvement in a

scheme to fraudulently obtain one hundred percent financing by misrepresenting the

purchase price of condominium units. Mr. Nuckolls represented a real estate

partnership that was selling condominium units. Mr. Nuckolls prepared closing

documents reflecting a significantly higher purchase price for the units than the sales

contracts showed. Lenders made mortgage loans based in part on Mr. Nuckolls'

misrepresentations. Additionally, Mr. Nuckolls handled a real estate transaction where

he was acting as a land trustee for the purchaser where he agreed to close the sale

under terms that were beneficial to the sellers who happened to be his partners and

clients. This Court found Mr. Nuckolls' deliberate attempt to perpetrate a fraud on

lenders to be serious misconduct. In mitigation, Mr. Nuckolls had no prior disciplinary

history and served a number of years in public office. Mr. Nuckolls' misconduct was

more serious than respondent's but it occurred during a time when less harsh

disciplinary sanctions were being imposed.

In The Florida Bar v. Siegel, 511 So. 2d 995 (Fla. 1987), two cases against two

different attorneys were consolidated. A ninety suspension, with automatic

21

reinstatement, was imposed where the two attorneys deliberately misrepresented facts

to a lender in order to secure full financing for the purchase of a building intended as

their law office. Similar to Mr. Nuckolls' case, although the misconduct was

considered to be serious in nature, the discipline was a reflection of the time period in

which it was imposed.

In The Florida Bar v. Shapiro, 456 So. 2d 452 (Fla. 1984), an attorney received a

ninety day suspension, with automatic reinstatement, and a two year period of

probation for filing a sworn motion to dismiss criminal charges which contained false

statements and a forged client signature. The false statements led to a perjury charge

which was dropped after the client obtained new counsel. As a condition ofprobation,

Mr. Shapiro was ordered to retake the ethics portion ofThe Florida Bar examination.

Unlike respondent, Mr. Shapiro filed a false document with the court. Were his

misconduct to have occurred today, it appears a harsher sanction may have been

warranted.

This Court's move in recent years toward stronger sanctions for attorney

misconduct indicates a ninety-one day suspension with proofofrehabilitation would be

an appropriate sanction. Herman, 8 So. 3d at 1108, The Florida Bar v. Rotstein, 835

So. 2d 241, 246 (Fla. 2003). Respondent's misconduct is most similar to that engaged

in by Mr. Winters in The Florida Bar v. Yonker, 37 Fla. Law Weekly S545 (Fla. Sept.

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6, 2012) and calls for an enhancement of the discipline set forth in the case law cited

above. Respondent intentionally engaged in an active misrepresentation for selfgain in

order to achieve his purchase of the property he desired at a good price. In addition,

respondent, an experienced practitioner who was responsible for supervising his law

firm's tort litigation department, negligently permitted his law firm to use a settlement

statement that violated the Rules Regulating The Florida Bar. Conduct such as that

engaged in by respondent taints how the legal profession is viewed by members ofthe

public and by people who seek the professional services of an attorney, as evidenced

by the following statements from this Court.

In The Florida Bar v. Bennett, 276 So. 2d 481, 482 (Fla. 1973), this Court

stated: "Some may consider it 'unfortunate' that attorneys can seldom cast off

completely the mantle they enjoy in the profession and simply act with simple business

acumen and not be held responsibleunder the high standards ofour profession. It is not

often, ifever, that this is the case. In a sense, 'an attorney is an attorney is an attorney',

much as the military officer remains 'an officer and a gentleman' at all times." This

Court further stated in Bennett at 482 , that attorneys "must be on guard and act

accordingly, to avoid tarnishing the professional image or damaging the public which

may rely upon their professional standing." In Brown, 905 So. 2d at 82, this Court

emphasized that "attorneys must be and are held to the highest ofethical standards and,

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unlike non-attorney citizens, are subject to discipline for a breach ofthose standards."

In The Florida Bar v. Valentine-Miller, 974 So. 2d 333, 338 (Fla. 2008), this Court

stated that "lawyers are required to have high ethical standards because members ofthe

public are asked to trust lawyers in their greatest hours of need. Without such

standards, the entire legal profession would be in jeopardy as public trust would

dissipate."

Discipline must serve three purposes: it must protect the public, be fair to the

respondent and be severe enough to deter other attorneys from committing similar

misconduct. The Florida Bar v. Shoureas, 892 So. 2d 1002 (Fla. 2004); The Florida

Bar v. Lord, 433 So. 2d 983 (Fla. 1983). A ninety-one day suspension satisfies the

three purposes of discipline. It serves to protect the public by ensuring respondent

proves rehabilitation prior to being reinstated to the practice oflaw. This is particularly

important in light ofrespondent's position in his Memorandum as to Discipline that his

actions in attempting to gain approval by the cooperative apartment board for his

purchase was "commonplace occurrence" which did not reflect adversely on his fitness

to practice of law, implying that many persons attempting to purchase a cooperative

apartment in New York Citymake misrepresentations concerning financial status. The

proposed disciplinary sanction is fair to respondent in that it imposes a reasonable

sanction for his misconduct while encouraging rehabilitation. Most importantly, it

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serves as a deterrent to other attorneys who might be inclined to engage in similar

misconduct in connection with purchasing property. Further, in fairness to the

members of the bar, who have not engaged in misconduct, the respondent should be

taxed the costs ofthis proceeding. Accordingly, the appropriate disciplinary sanction to

impose against respondent is a ninety-one day suspension requiring he show proofof

rehabilitation before he is reinstated to the practice of law and payment of costs.

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CONCLUSION

WHEREFORE, The Florida Bar prays this Honorable Court will review the

referee's findings of fact and recommendation of a thirty day suspension with

automatic reinstatement to the practice of law and instead impose as a sanction a

ninety-one day suspension with proofof rehabilitation required prior to reinstatement

and payment of costs currently totaling $4,891.35.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven (7) copies ofThe Florida Bar's

Initial Brief have been sent by regular U.S. Mail to the Clerk of the Court, The

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

Tallahassee, Florida, 32399-1927; a copy of the foregoing has been furnished by

regular U. S. Mail to Respondent's Counsel, Fred Haddad, at Fred Haddad, P. A., 1

Financial Plaza, Suite 2612, Fort Lauderdale, Florida 33394-0061 and via electronic

mail at dee@fredhaddadlaw.com; with a copy furnished to Staff Counsel of The

Florida Bar at his designated e-mail address ofkmarvin@flabar.org on this /M day

of December, 2012.

Ke neth H. P. Bryk, Ba CounselThe Florida BarOrlando Branch OfficeThe Gateway Center1000 Legion Place, Suite 1625Orlando, Florida 32801-1050(407) 425-5424Florida Bar No. 164186kbryk@flabar.org

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CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN

Undersigned counsel does hereby certify that this Brief is submitted in 14 pointproportionately spaced Times New Roman font, and that this briefhas been filed by e-mail in accord with the Court's order of October 1, 2004. Undersigned counsel doeshereby further certify that the electronically filed version ofthis briefhas been scannedand found to be free of viruses, by Norton AntiVirus for Windows.

enneth H. P. Bryk, Bar Counsel

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