IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR,
Supreme Court Case Nos. SC11-91 SC11-485
Complainant, The Florida Bar File Nos. 2010-71,246(11J) 2010-71,289(11J) 2010-71,380(11J) 2011-70,807(11J) 2011-70,650(11J-MES)
vs. GEORGE MICHAEL EVANS, Respondent. /
REPORT OF REFEREE I.
SUMMARY OF PROCEEDINGS: Pursuant to the undersigned being duly
appointed as Referee for the Supreme Court of Florida to conduct a hearing as provided for by Rule 3-5.2(g) of the Rules Regulating The Florida Bar, a final hearing of this cause was undertaken. All of the pleadings, transcripts, notices, motions, and orders are forwarded with this Report and the foregoing constitute the record of the case. During the course of these proceedings, a status conference was held on May 17, 2011, and the final hearing was held on June 29, 2011, June 30, 2011 and July 8, 2011. The following attorneys appeared as counsel for the parties: For The Florida Bar:
Thomas A. Kroeger Bar Counsel 444 Brickell Avenue, Suite M-100
Miami, Florida 33131 For the Respondent:
David R. Ristoff, Esquire Attorney for Respondent Williams, Ristoff and Proper, PLC 4532 US Highway 19 New Port Richey, Florida 34652 Peter T. Flood, Esquire Co-Counsel for Respondent 125 Airport Road South Naples, Florida 34104
FINDINGS OF FACT: Respondent is, and at all times material herein mentioned was, a member of
The Florida Bar, albeit suspended by order of emergency suspension dated January 20, 2011, and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. Narrative Summary of Case and Facts: On or about January 14, 2011, The Florida Bar filed its Petition for Emergency Suspension against Respondent, and the Supreme Court entered an Order of Emergency Suspension on January 20, 2011. The Florida Bar filed its formal Complaint in this matter on or about March 14, 2011, pursuant to Rule 35.2(e) of the Rules Regulating The Florida Bar, which authorizes the filing of a formal complaint for further disciplinary proceedings without the need for a finding of probable cause by either a grievance committee or the Board of Governors. On or about June 28, 2011, Respondent filed, and the Supreme Court granted, 2
an Emergency Petition to Consolidate and Motion to Dissolve Emergency Suspension. Pursuant to the undersigned Referee being appointed to hear both the Motion to Dissolve Emergency Suspension, pursuant to Rule 3-5.2(f)(2) of the Rules Regulating The Florida Bar, and The Florida Bar’s formal Complaint, the final hearing commenced on June 29, 2011.
The Florida Bar presented the
testimony of Carlos Ruga, its Staff Auditor, and introduced multiple exhibits. Respondent presented his own testimony as well as that of several witnesses and multiple exhibits.
The following represents the findings of fact made by the
undersigned Referee: COUNT I 1.
In or about October, 2007, Respondent was representing William
Murphy in two different ongoing actions in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida: one, a marriage dissolution proceeding (In Re: The Marriage of Deidre A. Murphy, Petitioner/Wife and William A. Murphy, Respondent/Husband, Case No. 04 13059 FC 07) and the other, a civil action (50 State Security v. William A. Murphy, Case No. 04 11484 CA 20). Mrs. Murphy had intervened in the latter pending the disbursement of $300,000.00 in settlement proceeds. 2.
On or about October 29, 2007, in the case of 50 State Security v.
William A. Murphy, the presiding judge granted an order stating that the settlement
funds in the court registry were to be released to and held in Respondent’s trust account pending further order of the court.
On or about October 30, 2007,
Respondent deposited a check from the court registry in the amount of $80,484.20 into his trust account maintained at Bank Atlantic, account number xxxxxx2854. 3.
On or about November 14, 2007, the presiding judge in 50 State
Security v. William A. Murphy ordered that all costs incurred by the defendant and his counsel shall be released from the funds held in trust, but that the balance of the settlement proceeds shall remain in Respondent’s trust account until further order of the Family Court in the marriage dissolution proceeding. The order further stated that counsel was to file an affidavit of costs. On or about November 26, 2007, Respondent filed an Affidavit of Costs reflecting that he had incurred $48,500.00 in fees and costs for services provided by Michael DeCarlo, a forensic accountant, and $4,461.25 in fees and costs for services rendered by George Lott, Esquire. On or about November 30, 2007, Respondent deposited into his trust account a settlement check from 50 State Security Service, Inc., in the amount of $291,515.76 which represented the balance of the $300,000.00 settlement agreed to by the parties. 4.
According to the testimony of Carlos Ruga, and summaries of
Respondent’s trust account activity introduced by The Florida Bar, the balance in Respondent’s trust account was $80,777.83 as of November 28, 2007. With the 50 State Security deposit of $219,515.76 made on November 30, 2007, and three (3)
additional deposits totaling $103,000.00, made between December 6 and December 26, 2007, the total amount available in the trust account during the period of November 28, 2007, to January 3, 2008, reached a maximum of $403,293.59. From those funds, Respondent made over twenty (20) disbursements, directly from his trust account, to satisfy personal and business obligations that left a balance of $9,934.01 in the trust account as of January 3, 2008.
contravened previous court orders freezing the funds and, more importantly, reflected Respondent’s failure to apply the funds to the specific purposes for which they were entrusted. 5.
On or about August 17, 2009, in a proceeding in front of the presiding
judge in the marriage dissolution case, Respondent was specifically asked by the judge when he had disbursed the settlement proceeds from the recovery in 50 State Security v. William Murphy. Respondent stated that he had disbursed the funds a day or two after entry of the final judgment in the marriage dissolution matter. However, the final judgment was not entered until March 18, 2009, and Respondent had disbursed the funds by January 3, 2008. 6.
Over the next year, the successor judge in the marriage dissolution
case repeatedly ordered Respondent to produce his trust account records, issuing several orders finding him in civil contempt for his failure to do so and eventually issuing an order finding that Respondent had disbursed substantial monies out of his
trust account to personally benefit himself. 7.
Respondent testified that he had incurred well in excess of
$300,000.00 in costs in association with the 50 State Security case prior to the settlement recovery, and thus believed he was entitled to disburse the entire amount to himself pursuant to the November 14, 2007 court order to satisfy those costs. Moreover, Respondent testified that he had prepared a subsequent affidavit of costs but had failed to execute or file it due to the sudden death of his mother. Respondent introduced the affidavits of Michael DeCarlo and Alex Mesa, an investigator, which purported to reflect the additional costs he had incurred in association with their services on the 50 State Security case. Respondent’s brother, Alex Evans, a C.P.A., also testified that his reading of Respondent’s trust account ledger cards for the 50 State Security matter corresponded with Respondent’s testimony. 8.
Respondent further testified that the balance of the monies owed to
DeCarlo was satisfied with a $30,000.00 lump sum payment and release, and a subsequent deed to certain property that Respondent owned in Rum Cay, Bahamas. 1 Similarly, Respondent testified that Mesa’s outstanding balance was satisfied by the “forgiveness” of the balance Mesa owed on property in Rum Cay, Bahamas to an
On cross examination, Respondent testified that DeCarlo was currently suing him, alleging, in part, that he had not received the deed to the property in Rum Cay. 6
individual named Billy Davis, who in turn owed Respondent legal fees.
documentary evidence was introduced to substantiate Respondent’s testimony regarding these transactions, and indeed, Respondent testified that his agreement with Mesa was done verbally, owing to their longstanding relationship. After considering Respondent’s testimony, Alex Evans’ testimony and the affidavits of DeCarlo and Mesa, I ultimately do not find Respondent’s explanation credible, especially in light of the substantial amounts of money that Respondent disbursed directly from his trust account to satisfy his personal and business obligations and left the trust account with a balance of only $9,934.01 as of January 3, 2008. 9.
With respect to Respondent’s statement to the presiding judge in the
marriage dissolution matter concerning the disbursement of the settlement proceeds, Respondent testified that, while the statement was wholly inaccurate, he could not explain why he would have made such a statement. In fact, Respondent testified that he would not have believed he had made such a statement were it not for the transcript of the proceeding. However, in light of evidence detailing exactly when those funds were disbursed and Respondent’s subsequent actions in the dissolution matter, principally his refusal to produce his trust accounting records after being repeatedly ordered to do so for the next year, I find that Respondent knowingly made a false statement of fact to the judge regarding his disbursement of the 50 State Security settlement proceeds.
COUNT 2 10.
On or about February 12, 2007, Respondent received a $25,000.00
wire transfer into his trust account from Dr. Richard Fischer (Evergreen Assoc FLP) which constituted the deposit for the purchase of certain real property in Rum Cay, Bahamas. The following day, February 13, 2007, Respondent withdrew $25,000.00 from his trust account and deposited those funds into a personal account identified as George M. Evans, Julia-Marie Evans, maintained at Bank Atlantic, account number xxxxxx1435. On March 7, 2007, Respondent received a wire transfer into his trust account in the amount of $222,713.65 from Title Choice Corporation on behalf of Dr. Fischer, which represented the balance of the purchase price for the Bahamas property. On or about March 8, 2007, Respondent transferred $200,000.00 from his trust account to a personal account identified as George M. Evans, account number xxxxxx5645. From those funds, Respondent made the following disbursements to satisfy personal and business obligations: A. On March 13, 2007, Respondent issued a check to Homecoming Financial in the amount of $80,158.90. B. On April 24, 2007, Respondent transferred $30,000.00 to his operating account, #xxxxxx3258. C. On April 24, 2007, Respondent transferred $25,000.00 to his trust account. D. On April 26, 2007, Respondent completed a wire transfer to Holt, Ney, Zatcoff et. al. in the amount of $55,000.00. E. Respondent used $9,841.00 to satisfy other personal matters. 11.
Of the funds deposited into Respondent’s trust account by, or on
behalf of, Dr. Fischer no disbursements were made directly to Newport Harbor, Limited, Eastward Ventures, Limited, or Sunward Holdings, Limited, the Bahamas corporate sellers listed in the various real estate documents. 12.
Respondent testified that he had previously represented Billy Davis,
an agent of Newport Harbor, Limited, and Sunward Holdings, Limited, in numerous matters. As a result, Davis owed Respondent a substantial amount in legal fees and directed Respondent to retain certain amounts from the funds supplied by Dr. Fischer, as payment toward said outstanding fees. Respondent also introduced the video deposition of Billy Davis, who testified that he had given Respondent instructions regarding the disbursement of Dr. Fischer’s funds, including directing Respondent to retain certain amounts as payment for previously-earned legal fees.
However, other than several affidavits by Billy
Davis, which listed individual amounts Davis purportedly directed Respondent to disburse and/or retain (and when viewed in their entirety are contradictory within themselves), no other documentary evidence was introduced to corroborate Respondent’s assertions. After reviewing Davis’ video deposition and affidavits, I do not assign them much weight for several reasons. First, there is no documentary evidence to support his contentions. Second, Davis was felony convicted in the mid 1990s in the federal case of United States v. Billy Wayne Davis of making false statements to America’s First Credit Union. (His civil rights were
subsequently restored.) Third, he and numerous other senators were censured by the Arizona State Senate for failing to make full disclosure in his financial disclosure statement. I also do not find credible, Respondent’s explanation for the disbursement of Dr. Fischer’s funds from his trust account. 13.
I do however find that The Florida Bar has failed to establish by clear
and convincing evidence that Dr. Fischer did not receive marketable title to the property and that Respondent was to provide, or represented that he would provide, title insurance in connection with the transaction.
COUNT 3 14.
On or about March 14, 2007, Respondent received a $25,000.00 wire
transfer into his trust account from Terrance and Linda Ferguson which constituted the deposit for the purchase of certain real property in Rum Cay, Bahamas. Prior to that deposit, the trust account balance was $87,223.22 which represented the amount left from Dr.Fischer’s funds. On or about March 22, 2007, an additional $245,000.00 deposit was wired into Respondent’s trust account on behalf of the Fergusons, representing the balance of the $270,000.00 total purchase price for the Bahamas property. Respondent subsequently made the following disbursements from his trust account. A. $293,000.00 was deposited into his personal account identified as George and Julie Evans maintained at Bank Atlantic, account 10
#xxxxxx1111.2 B. $3,000.00 was withdrawn. C. $4,500.00 was disbursed to Roni Jansenson. D. $7,500.00 was disbursed to Bouco and Sons. E. $333.16 was utilized for personal expenses at Target and Advance Auto Parts. 15.
Respondent again testified that the disbursements to his personal
accounts from the Ferguson’s funds constituted outstanding legal fees owed to him by Billy Davis, and that Davis had provided specific instructions for those disbursements. Again, Respondent did not introduce any documentary evidence to substantiate his claim that these funds represented earned fees, and Billy Davis’ testimony in this respect is similarly unpersuasive. Accordingly, I do not find credible Respondent’s explanation for the disbursement of the Ferguson’s funds from his trust account. 16.
I do however similarly find that The Florida Bar has failed to establish
by clear and convincing evidence that the Fergusons did not receive marketable title to the property and that Respondent was to provide, or represented that he would provide, title insurance in connection with the transaction. COUNT 4 17.
On or about February 28, 2007, Liliana De La Paz and her then-
Of the $293,000.00 deposited into account number xxxxxx1111, a total of $145,000.00 was disbursed to Billy Davis over the course of four separate transactions. Additionally, Respondent made multiple disbursements to his operating account and dozens of withdrawals. 11
husband, Pablo Garcia, who were in the midst of dissolving their marriage, signed an authorization disbursing the net proceeds of the sale of their marital home to Respondent’s trust account, “to be held in his Trust Account until we agree to the division of said funds or a Court of competent jurisdiction orders otherwise.” On or about March 5, 2007, Respondent deposited into his trust account a check in the amount $51,737.25 which constituted the net proceeds of the sale of the residence. By March 30, 2007, the available balance in the trust account was $48,890.06 which was insufficient to cover Respondent’s liability to De La Paz and Garcia. On or about May 7, 2007, Respondent deposited into his trust account an additional $3,200.00 on behalf of De La Paz and Garcia, however as of this date the balance in the trust account was only $21,642.80. By June 22, 2007, the available balance in the trust account had dwindled to $884.80. 18.
In or about March of 2010, De La Paz contacted Respondent to advise
him that she and Garcia had agreed to the division of their $54,937.25 deposited three year previously in Respondent’s trust account pursuant to their written authorization, and that she expected the court to ratify their Agreed Order on Marital Settlement. Respondent then informed De La Paz that he had used the funds to purchase property in North Carolina on her behalf, purportedly as an investment. The evidence shows that Respondent bought the North Carolina property in April 2009. Notwithstanding the fact that De La Paz (or Garcia) never
authorized use of the funds for this purpose, she visited the property in June of 2010, but learned from the community manager that the listed owner of record of the property was George Evans and his wife, Julia-Marie Evans, and that there was no indication of her having even a partial ownership interest. On or about October 20, 2010, De La Paz sent Respondent a letter, enclosing a court order from the dissolution case dated October 18, 2010, which ordered Respondent to disburse to De La Paz the funds from the sale of the marital home being held in his trust account. 19.
Over the next several months, Respondent and De La Paz exchanged
multiple emails and letters (copies in evidence) in which De La Paz demanded payment and Respondent repeatedly asserted that De La Paz had authorized his use of the funds to purchase the property in North Carolina. The exchanged emails and letters from early November 2010 through late January 2011, disclose a revealing look into any obviously difficult situation that had developed between former friends. I gave considerable weight to said exchange when considering (1) Respondent’s explanation of the events he testified to and (2) to the two June 2011 affidavits of De La Paz introduced into evidence by Respondent. Below is a sampling of portions pulled from various of the emails and letters. a) Email 11/18/10 7:32 p.m. from De La Paz to Respondent: Hello George. I’m resending this email I sent Nov, 8 since you did not respond… Please send me my money… 13
b) Email 11/15/10 1:36 p.m. from Respondent to De La Paz: Lilliana you know that I invested your funds in North Carolina where you stayed. I can qualify for a loan so you can purchase a new home…
c) Email 11/16/10 6:33 p.m. from De La Paz to Respondent: I don’t know what you did with my money since I have never seen anything in writing. I want to invest in Miami not in North Carolina. What do you mean by you can qualify for a loan so I can purchase a new home? How does that work? …The main question is where is the money and what proof of funds do I have…?
d) Email 11/18/10 7:41 p.m. from De La Paz to Respondent: Please figure out how you are going to give me my funds by the end of November. I know you can easily get a loan for the $54,950.00 you were supposed to hold in escrow… I trust you will do the honorable thing.
e) Email 11/18/10 10:08 p.m. from Respondent to De La Paz: Sorry, my wife is seriously ill. I have always done the honorable thing to help you.
f) Email 11/20/10 12:43 p.m. from De la Paz to Respondent: I thought you were honorable, that’s why I trusted you to hold the funds… Just make it right, find a solution that makes nobody wrong… I need the $54,000 to make an offer. Have the money for me by Nov. 30. I don’t want to pursue this legally.
g) Email 11/20/10 1:51 p.m. from Respondent to De La Paz: I have always been honorable with you. I protected those monies so Harvey could not get them. It is difficult to get them out of the property on short notice.
h) Email 11/26/10 7:02 p.m. from De La Paz to Respondent: George, I just want my money by Nov. 30th… I can’t accept anything else.
i) Letter 1/17/11 from Del La Paz to Respondent: I feel I have no choice but to pursue the matter of the escrowed funds you were supposed to disburse to me according to Judge Bagley’s order of September 30, 2010
On November 27, 2010 we met and spoke very openly about certain circumstances you were experiencing. You agreed with me that I had no proof of any investment you undertook on my behalf nor did I have any guarantee from you that my funds were protected should anything ever were to happen to you … Based on our conversation, I agreed to wait another 30 days and accept a promissory note issued from you within seven days of our meeting of November 27, 2010. On December 26, 2010, I received a promissory note dated December 10, 2010. This promissory note is totally unacceptable… The note states I must wait “to be paid in full upon the sale of the cabin on Buck Mountain located at 250 Doe Run, Purlear, North Carolina” the principal sum of $54,937.25. This is most unacceptable… You told me you had a third Party whose money you invested in this same property. Is this person listed on the property’s deed or any of the property’s documents? You said I am not named anywhere as an investor in this property. Who gets their money first? How do I legally protect myself and the money entrusted to you? Surely you can understand my predicament?
I have fought long and hard during a 5 ½ year long bitter divorce to get these moneys awarded to me and to now be expected to wait an undeterminable amount of time for you to disburse to me my Court ordered funds is incomprehensible and totally unfair… I think I have been more than fair and extremely patient with you, afraid of losing your friendship, empathetic to your circumstances with your wife’s health problems. I have been agonizing over what to do; feeling guilty about reporting this misdeed and not wanting to cause you problems. But then, enclosed with the December 10, 2010 Promissory Note, you send me a one line bill asking for “ authorized payment of legal fees to George M. Evans, P.A. for services rendered in closing and other matters…”. So where is the friendship in that?... Now you want to charge attorney fees because I want my money? And here I have been distressing for the last 4 months over how to best handle this so that I don’t lose your friendship and we become adversaries. Since you have made this strictly business and not at all personal, let’s address the issue of the money. You have been holding $54,937.25 since February 28, 2007, i.e. 47 months. According to Rule of Law, 5-1.1 Trust Accounts, these funds being significant and long term, were to be placed in an interest bearing account of other appropriate investment. Where is the accrued interest over the last 47 months or 4 years on the principal amount of $54,937.25?... Instead, you take my escrowed funds without my consent, without me ever signing off on anything to invest in a mountaintop cabin in another state next to a cabin you have owned for years; an investment that is solely in your name and where my name is nowhere to be found… The fact is George, you did not demonstrate good faith judgment when you converted my funds and you benefited from escrowed funds entrusted to you as fiscal fiduciary and you have denied me significant interest on a long term, substantial amount of money. This is a serious problem. Send me my money including 47 months of accrued interest 16
at your suggested rate of 18% interest immediately or I will have no alternative but to pursue this matter accordingly.
j) Email 1/20/11 11:37 am from De la Paz to Respondent: Done talking. Made informal inquiry yesterday with Fla. Bar as to my options… You have had since September 30 to figure it out. Cut me a check including 47 months of interest by Monday January 24th.
k) Email 1/20/11 11:45 am from Respondent to De La Paz: I will do what you need if Florida Bar suspends me. I will be unable to practice law. I never meant to offend or hurt you. I thought that I was doing what you wanted. I ask that you wait before going to the Bar. Did you send copy of letter I received to the Bar. Please let me know.
l) Email (not dated, but likely between 1/20/11 – 1/23/11) from De La Paz to Respondent, subject: Offended and hurt:
Never thought my husband of 17 years and father of my children would have done what he did either. No I have not sent anything, but the auditor named Carlos Ruga wants to talk to me… I do not want you to lose your job, that is not my intention. What did you think I wanted? For you to take my money to invest in an unknown location, in a place I have no intention of ever living at, going on blind trust because I have nothing in writing that protects my assets, allow you and your wife to be the sole owners of the investment property. Really? Now you insult me? Don’t force my hand… Send me a check by Monday with interest.
m) Email 1/25/11 7:13 pm from De La Paz to Respondent: … Tell me why (I) should not pursue this legally? … Like you said, you knew since June, I wanted to buy a home for my kids in Miami and I have been telling you since March, when Pablo and I reached a 17
settlement that I wanted the money to buy a house. Every time I made inquiries about you, I feel like I’ve been elbowed in the gut… Work with me to help you George. Don’t mistake my good heartiness with “come mierda.” Let’s keep our “friendly relationship” as that.
n) Email 1/26/11 6:51am from Respondent to De La Paz: … It was not until after the visit that you claimed the cabin was not the type of investment you wanted… If you feel more comfortable with a mortgage on a free and clear property in Miami until you find a house, that can be an option… If anyone is bad mouthing me please let me know. I would like the opportunity to respond. I have reached out to individuals that owe me monies and am in litigation with others to regain monies owed to me. Upon recovery we can resolve our matter immediately. Sometimes I believe my words may get misconstrued by you, I ask that you request clarification if you are bothered by my responses. I am dealing with very significant issues in my life and wish to resolve your matter as quickly as possible.
Eventually, after the filing of her grievance with The Florida Bar, which she signed on February 6, 2011, Respondent provided De La Paz with the $54,937.25 which represented the net proceeds from the sale of the marital home. 20.
Respondent testified that he was friends with both De La Paz and
Garcia, and that even before the funds were deposited into his trust account on March 5, 2007, Garcia had verbally agreed to award them to De La Paz. Moreover, Respondent testified that he was merely holding the funds as a favor, not as client funds, and believed that the divorce case was already resolved.
testified that De La Paz’s authorization to invest the funds in the North Carolina 18
property was verbal, and that, in fact, all communications from both De La Paz and Garcia regarding the funds were verbal. When questioned about the fact that the April 2009 deed for the property, which had been introduced into evidence, reflected it was owned by George and Julia-Marie Evans, individually, Respondent indicated that De La Paz did not want her name on the deed for financial reasons, and introduced a June 22, 2011 Supplement to Affidavit from De La Paz relating the same. Respondent introduced another June 16, 2011 Affidavit from De La Paz which, in summary, indicated her desire for the complaint to be dismissed as the investment itself and the difficulties she encountered in obtaining the funds from the Respondent were the result of a misunderstanding. Respondent also introduced an email from De La Paz in June of 2010, which indicated she was looking forward to visiting her investment in North Carolina. 21.
The affidavits and email of De La Paz introduced by Respondent,
tellingly, omit any reference to the date when she and Garcia agreed to the distribution of funds and, more importantly, do not contradict her assertion in her sworn complaint that she did not give permission, verbal or otherwise, for the funds to be used for investment property in North Carolina. Although her affidavit in evidence, of June 16, 2011, states that Respondent “misunderstood” their conversation about real estate to be permission for him to invest her funds in property in North Carolina, the fact remains that: a) Respondent’s trust account
balance was insufficient to account for the liability to De La Paz and/or Garcia within a month after the deposit; and (b) there was no explicit authorization, verbal or otherwise, for Respondent to utilize the funds for the purchase of property in North Carolina, and certainly not to title the same in the name of Respondent and his wife. While I do not reject De La Paz’s affidavits out of hand, I do not find them especially compelling, nor do I find that they contradict the allegations in her sworn complaint to The Florida Bar or the evidence of Respondent’s trust account activity presented by The Florida Bar. III.
RECOMMENDATION AS TO GUILT: As to Count 1, I recommend that Respondent be found guilty of violating
Rules 4-3.3(a)(1)(Candor Toward the Tribunal; False Evidence; Duty to Disclose. A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer) and 4-8.4(c)(Misconduct. A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation) of the Rules of Professional Conduct, and Rule 5-1.1(b)(Application of Trust Funds or Property to Specific Purpose) of the Rules Regulating Trusts Accounts. As to Counts 2, 3 and 4, I recommend that Respondent be found guilty of the following with respect to each count: Rule 4-8.4(c)(Misconduct. A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation) of
the Rules of Professional Conduct, and Rule 5-1.1(b)(Application of Trust Funds or Property to Specific Purpose) of the Rules Regulating Trusts Accounts. IV.
CASE LAW: I considered the following case law prior to recommending discipline: • • • • • • • • • • • • • •
The Florida Bar v. Barley, 831 So.2d 163 (Fla. 2002) The Florida Bar v. Martinez-Genova, 959 So.2d 241 (Fla. 2007) The Florida Bar v. Tillman, 682 So.2d 542 (Fla. 1996) The Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007) The Florida Bar v. Ross, 417 So.2d 985 (Fla. 1982) The Florida Bar v. Graham, 605 So.2d 53 (Fla. 1992) The Florida Bar v. Bloom, 972 So.2d 172 (Fla. 2007) The Florida Bar v. Riggs, 944 So.2d 167 (Fla. 2006) The Florida Bar v. Massfeller, 170 So.2d 834 (Fla. 1964) The Florida Bar v. Mechlowitz, 238 So.2d 643 (Fla. 1970) The Florida Bar v. Diaz-Silveira, 557 So.2d 570 (Fla. 1990) The Florida Bar v. Batista, 846 So.2d 479 (Fla. 2003) The Florida Bar v. Neu, 597 So.2d 266 (Fla. 1992) The Florida Bar v. Borja, 609 So.2d 21 (Fla. 1992)
FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS: I considered the following standards prior to recommending discipline:
Standard 2.2, 2.3 and 2.8 (b) Standard 3.0 Standard 4.11and 4.12 Standard 5.11(f) Standard 6.11(a) and (b) Standard 6.12
VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: Based on the foregoing findings of fact, I hereby recommend that 21
Respondent receive a three (3) year suspension, followed by five (5) years of probation. In making this recommendation, I take note of the fact that nowhere in this proceeding was it ever alleged by the Florida Bar, that any clients of Respondent, or any third parties for that matter, ultimately lost any money as a result of Respondent’s actions or inactions. VII. STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED: I find that pursuant to Rule 3-7.6(q) of the Rules of Discipline, reasonable costs are to be awarded to The Florida Bar as the prevailing party in this disciplinary proceeding, including but not limited to, $1,250.00 in administrative fees.
The additional amounts to be assessed against Respondent shall be
determined by the undersigned following a further submission by The Florida Bar regarding its taxable costs. VIII. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: Age: 59 Date Admitted to Bar: May 31, 1977 Prior disciplinary record: In Supreme Court Case No. SC-84,642; The Florida Bar File No. 1994-31,216(5A), the Respondent received a public reprimand. In Supreme Court Case No. SC-91; The Florida Bar File No. 201170,650(11J-MES), Respondent was emergency suspended pursuant to Supreme Court Order dated January 20, 2011. This served as the basis for the filing of the formal Complaint in the instant matter. 22
Factors Considered in Aggravation: 9.22(a) – 9.22(b) – 9.22(c) – 9.22(d) – 9.22(f) –
prior disciplinary offenses; dishonest or selfish motive; a pattern of misconduct; multiple offenses; submission of false evidence, false statements, or other deceptive practices during the disciplinary proceedings; 3 9.22(g) – refusal to acknowledge wrongful nature of conduct; 9.22(i) – substantial experience in practice of law.
Factors Considered in Mitigation 3
Respondent testified during the fact-finding portion of the final hearing that a check in the amount of $68,831.82 that was deposited into his trust on October 17, 2007, represented the proceeds from the sale of property that he owned at 4290 SW 40th Street, Hollywood, Florida. At the sanctions portion of the final hearing, The Florida Bar introduced several exhibits concerning the real estate transaction, including an affidavit from the closing and title agent, attorney Andrew Kolondra, which demonstrated that the owner/seller of record of the Hollywood property was John Hoffpauir, and Respondent acted as attorney for the seller. In response, Respondent introduced the affidavit of the buyer of the property, Bruce Gossage, who stated that he “was aware that the seller of record, John Hoffpauir had assigned his interest in the real property to” Respondent for legal fees and improvements to the property. Following the sanctions portion of the final hearing, and with the Referee’s consent, Respondent submitted the affidavit of Alex Mesa, who stated that he was aware that John Hoffpauir had assigned the rights to the real estate and the proceeds to Respondent in exchange for legal fees, improvements to the property and funds contributed to avoid foreclosure. Finally, also following the sanctions portion of the final hearing and with the Referee’s consent, Respondent submitted several other documents related to the sale of the Hollywood property, including a Power of Attorney to Respondent executed by John Hoffpauir. The additional documents provided by Respondent do not alter the fact that Respondent testified that he was the owner of the property, without qualification, during the fact-finding portion of the final hearing. None of the relevant documents concerning the transaction indicate that Respondent had any legally cognizable interest in the property. Accordingly I find Respondent uttered a false statement and engaged in deception during the disciplinary proceedings, and that the foregoing supports aggravation. 23
9.32(c) – 9.32(g) – 9.32(k) – 9.32(m) –
personal or emotional problems; character or reputation; imposition of other penalties or sanctions; remoteness of prior offenses.
DATED this 19 day of July, 2011.
____________________________________ HONORABLE JOSEPH I. DAVIS, JR. REFEREE Copies furnished to: Thomas Kroeger, Bar Counsel David R. Ristoff, Attorney for Respondent Peter T. Flood, Co-Counsel for Respondent Kenneth L. Marvin, Staff Counsel