REPORT OF REFEREE
1. SUMMARY OF PROCEEDINGS:
The undersigned was originally appointed to preside in the
above disciplinary action by order of the Supreme Court of Florida,
dated July 19, 1996, and by order of Walter N. Colbath, Chief
Judge of the Fifteenth Judicial Circuit, dated May 7, 1999. The
pleadings and all other papers filed with the undersigned, which
are forwarded to the Court, constitute the entire record for
this case. The final hearing was held on January 13 and January
During the course of these proceedings, the petitioner appeared
pro se and The Florida Bar was represented by Lorraine C. Hoffmann,
II. FINDINGS OF FACT:
Based upon the testimony presented to me, I find as follows:
1. The Florida Supreme Court has prescribed the following
criteria the petitioner must establish, by clear and convincing
evidence, in order to support a petition for reinstatement:
A. strict compliance with the specific conditions of the disciplinary
B. evidence of unimpeachable character and moral standing
in the community;
C. clear evidence of a good reputation for professional ability;
D. evidence of a lack of malice and ill feeling by the petitioner
toward those who by duty were compelled to bring about the disciplinary
E. personal assurances, supported by corroborating evidence
revealing a sense of repentance, as well as a desire and intention
of the petitioner to conduct himself in an exemplary fashion
in the future;
F. in cases involving misappropriation or theft, restitution
is also important. See, Petition of Wolf, 257 So. 2d 547, 549
(Fla. 1972) and its progeny.
2. The petitioner testified at length concerning the above
criteria, as did his numerous witnesses.
3. 1 find that the petitioner has not met the criteria set
forth in Wolf. Specifically, petitioner has failed to evidence
an unimpeachable character or a true sense of repentance and
a desire and intention to conduct himself in an exemplary fashion
in the future.
4. 1 have come to the above conclusions due to the following
facts which were presented to me in the final hearing in this
A. Petitioner represented Walter Small in a civil matter.
Petitioner accepted the representation in April 1997. Petitioner
further accepted a $10,000 fee from Small. When petitioner took
said fee, he knew disciplinary action against him was imminent.
In anticipation of such disciplinary action, and anticipating
a loss of is income due to suspension and/or disbarment, petitioner
and his wife put their home on the market. Yet, petitioner intentionally
failed to inform Small that the possibility existed that he would
be unable to complete the representation.
B. After being notified of his suspension by the Supreme Court
on or about July 17, 1997, petitioner failed to notify Small
for a period of months. He further failed to include Small in
his affidavit to The Florida Bar listing those clients to whom
he gave notice of his suspension.
C. More disturbing is petitioner's failure to withdraw from
the representation of Small within the thirty (30) day period
set forth in the suspension order. Petitioner did not file a
Motion to Withdraw from Small's case until October 1997, well
after his suspension had become effective, on August 17, 1997.
Additionally, petitioner's pleadings failed to set forth the
true reason for his withdrawal, failed to indicate that he was
not acting as an attorney (he signed his name and indicated his
bar number) and failed to reveal that his client had no active
attorney since early August. Petitioner was prohibited from practicing
law on or about August 18, 1997 and thereafter until reinstated
by the Supreme Court of Florida. Petitioner submitted this pleading
to the court replete with omissions, and a misrepresentation
which prejudiced his client. As he did so, without giving any
notice of his suspended status, such constitutes the practice
of law while he was under suspension.
D. Petitioner also gave Mr. Small a small refund check which
bounced. Petitioner never made good on the check.
E. Petitioner never returned all of Mr. Small's trial documents
to him until after the date on which his case was dismissed for
failure to obtain successor counsel.
F. I find that petitioner's actions in the Small case demonstrate
a lack of honesty and candor toward his client and the court.
G. I further heard testimony from Kevin Law, Claims Adjuster
for the Florida Department of Insurance. Mr. Law testified at
length regarding his office's investigation of petitioner. The
Department of Insurance audited certain defunct insurance companies
and found that those companies had remitted checks to petitioner
in connection with certain representation. The checks were each
in the amount of $115 or $215. In aggregate, these checks totaled
approximately $3000. Pursuant to the testimony of William Flanagan,
The Florida Bar's investigator, it was established that petitioner
failed to file the contemplated litigation and further failed
to return such monies to the subject insurance companies. Although
there is a dispute as to whether these monies were costs or fees,
I find from all the evidence that these monies were remitted
to petitioner as deposits for costs. Therefore, petitioner should
have returned such costs when the contemplated litigation did
not go forward. Petitioner failed to do so thereby misappropriating
these funds. Mr. Law testified that but for his office's budgetary
constraints, petitioner would have been criminally prosecuted
by the Department for his actions.
H. Misappropriation of funds is one of the most reprehensible
acts an attorney can commit. Petitioner has done so on more than
one occasion, and was disciplined for such misconduct. Having
committed similar misconduct again, I find no evidence to support
petitioner's claim that his is rehabilitated.
I. Additionally, I heard testimony from David Watner, Esq.,
Mr. Krasnove's law partner who was also a client. Mr. Watner
presented compelling evidence that petitioner failed to timely
advise him and opposing counsel of his suspension. Petitioner
himself admitted excluding Mr. Watner from the mandatory postsuspension
affidavit he filed with The Florida Bar.
J. I have also taken judicial notice of petitioner's suspension
in New York, until September, 2003.
III. RECOMMENDATION ON REINSTATEMENT:
For the reasons set forth above, petitioner has not fully
met the criteria set forth in Wolf. Therefore he should not be
reinstated to the practice of law at this time.
IV. PERSONAL HISTORY:
The petitioner is 51 years old and was admitted to the practice
of law in Florida on May 10, 1974.
V. STATEMENT AS TO PAST DISCIPLINE:
Florida Bar File No. 82-03,363 - Petitioner received a private
reprimand for neglect.
Florida Bar File No. 85-14,305 - Petitioner received a public
reprimand for personal behavior.
Florida Bar File No. 95-50,144, Supreme Court Case No. 86,666
- Petitioner was suspended for one (1) year for certain trust
Florida Bar File No. 95-50,266, Supreme Court Case No. 91,915
- Petitioner was suspended for one (1) year. Said suspension
was to run concurrently with the one (1) year suspension ordered
in Supreme Court Case No. 86,666. It is from these suspension
orders that petitioner was seeking reinstatement.
VI. STATEMENT OF THE COSTS OF THE PROCEEDING:
I find that reasonable costs have been incurred by The Florida
Bar and that the same should be assessed against the petitioner.
These costs total $2,509.30. Dated this day of January, 2000.
||RICHARD L. OFTEDAL, REFEREE
Notes on ImmuStim |||
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This page was posted on June 3, 2000.
- Copies furnished to:
- Lorraine C. Hoffmann, Bar Counsel
- Keith Martin Krasnove, Petitioner