IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Supreme Court Case Nos. SC08-76 Complainant, SC08-575 SC08-804 v. The Florida Bar File Nos. 2006-50,178(15D) JOSEPH HARRISON, 2007-51,665(15E) 2007-50,927(15E) Respondent. / AMENDED REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS : Pursuant to the undersigned being duly appointed as Referee to conduct disciplinary proceedings herein according to the Rules Regulating the Florida Bar, Rule 3-7.6, Rules of Discipline, the following proceedings occurred. 1 On or about January 11, 2008, The Florida Bar filed its Complaint, which was designated as Supreme Court Case No. SC08-76. On or about January 29, 2008, the undersigned was appointed as Referee by the Chief Judge of the Seventeenth Judicial Circuit. The following attorneys appeared as counsel for the parties: 1 All pleadings, notices, motions, orders, transcripts and Exhibits are forwarded to the Supreme Court with this report and constitute the record in this case.
Transcript
IN THE SUPREME COURT OF FLORIDA (Before a Referee)
THE FLORIDA BAR, Supreme Court Case Nos. SC08-76 Complainant, SC08-575 SC08-804 v. The Florida Bar File Nos. 2006-50,178(15D) JOSEPH HARRISON, 2007-51,665(15E) 2007-50,927(15E) Respondent. /
AMENDED REPORT OF REFEREE
I. SUMMARY OF PROCEEDINGS:
Pursuant to the undersigned being duly appointed as Referee to conduct
disciplinary proceedings herein according to the Rules Regulating the Florida Bar,
Rule 3-7.6, Rules of Discipline, the following proceedings occurred.1
On or about January 11, 2008, The Florida Bar filed its Complaint, which
was designated as Supreme Court Case No. SC08-76. On or about January 29,
2008, the undersigned was appointed as Referee by the Chief Judge of the
Seventeenth Judicial Circuit.
The following attorneys appeared as counsel for the parties:
1 All pleadings, notices, motions, orders, transcripts and Exhibits are forwarded to the Supreme Court with this report and constitute the record in this case.
2
On behalf of the Florida Bar: Ronna Friedman Young
The Florida Bar 5900 North Andrews Ave., Suite 900 Fort Lauderdale, FL 33309
On behalf of the Respondent: pro se
A case management conference was scheduled for March 5, 2008, and
notice of same was sent to Respondent by The Florida Bar under certificate of
service dated February 12, 2008. On February 12, 2008, the Bar served a Motion
for Default Judgment.
On March 5, 2008, the Bar appeared through counsel. Respondent did not
appear.2 The Bar further informed the Referee that subsequent to the Bar’s
submission of its Motion for Default Judgment, the Bar had received an Answer
from Respondent. The Answer had not been filed by Respondent. During the case
management conference, the Referee called Respondent and reached his voice
mail. The Referee left a message that Respondent was to appear at a case
management conference on March 18, 2008. The proceedings, which occurred on
March 5, 2008, were summarized in an Order issued on March 11, 2008.
On March 18, 2008, both sides appeared. Because Respondent had not filed
an Answer with the Referee and did not have a copy of his Answer with him, the
2 Apparently, Respondent had not retrieved the certified mail notice of the case management conference.
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Bar provided the Answer to the Referee. A schedule was set for further
proceedings and the final hearing was scheduled to begin on June 20, 2008.
Thereafter in SC08-76, Respondent failed to file an Exhibit list, failed to
respond to the Bar’s requests for admissions (which had been served by hand
delivery to Respondent personally on May 1, 2008), and failed to file an
appropriate witness list.
The Bar’s Complaint, which was designated as Supreme Court Case
No. SC08-575, was filed on March 26, 2008; and the Bar’s Complaint, which was
designated as Supreme Court Case No. SC08-804, was filed on April 28, 2008.
The undersigned was appointed as Referee in both cases. Respondent failed to
serve or file an Answer in either case. An Order granting the Bar’s Motion for
Default Judgment was entered in these two cases on June 3, 2008.
A pretrial conference was set in SC08-76 for June 17, 2008. On that date,
both sides appeared. At the conference, pro se Respondent presented the Referee
with a document entitled “Respondent’s Notice of Opposition to the Complainant’s
Motion for Default Judgment and Emergency Motion for Continuance,” which
pertained to all 3 pending disciplinary cases. Pursuant to the Respondent’s request
for a continuance, the Referee, on June 17, 2008, rescheduled the final hearing in
SC08-76 (which had been set for June 20, 2008) to begin on August 21, 2008, with
a status conference to be held on August 1, 2008.
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On August 1, 2008, the Bar appeared through counsel. The Respondent did
not appear. The Bar’s office and the referee’s office received telephone messages
from Respondent indicating that he was ill. During the status conference, the
undersigned twice unsuccessfully attempted to reach the Respondent by telephone.
The undersigned treated “Respondent’s Notice of Opposition to the Complainant’s
Motion for Default Judgment” as a Motion to set aside the default judgments
entered on June 3, 2008 (in SC08-575 and SC08-804) and denied the Motion. The
undersigned set a final hearing in SC08-575 and SC08-804 for the sole purpose of
determining discipline. Supreme Court Case Nos. SC08-76, SC08-575, and SC08-
804 were then consolidated for further proceedings. At the request of Respondent,
another status conference was held on August 15, 2008.
The final hearing occurred on August 21, August 22, August 28, and
September 8, 2008. During the Bar’s case, the following witnesses testified with
respect to SC08-76: attorney Venus Zilieris, attorney J. Blake Hunter from the
Florida Department of Health, attorney Julie Gallagher, Bar staff auditor Carlos
Ruga, expert attorney Allen Grossman, Dr. Kosmas Sarantis, and Respondent. Bar
Exhibits 1 through 10 were admitted into evidence. During the defense,
Respondent testified on his own behalf. Proposed Reports were to be submitted to
the undersigned on or before September 15, 2008. Respondent did not file a
proposed report.
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II. FINDINGS OF FACT: A. Jurisdictional Statement: Respondent is, and at all times mentioned
during this investigation was, a member of The Florida Bar, and subject to the
jurisdiction and disciplinary rules of the Supreme Court of Florida.
B. Narrative Summary of SC08-76:
1. The following four paragraphs of the Bar’s Complaint were admitted
by Respondent’s Answer:
a. The Respondent is, and at all times material to this action was, a
member of The Florida Bar subject to the jurisdiction and disciplinary rules
of the Supreme Court of Florida.
b. Fifteenth Judicial Circuit Grievance Committee “D”, at a duly
constituted meeting, and by majority vote of the eligible members present,
found probable cause to believe that Respondent violated the Rules
Regulating The Florida Bar set forth herein. The presiding member of the
grievance committee has approved the instant Complaint.
c. In or about May 2004, Respondent was retained to represent
Kosmas M. Sarantis, M.D., (Dr. Sarantis) in certain matters concerning
Dr. Sarantis’ medical license.
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d. Dr. Sarantis’ medical license had been suspended for a period of 1
year by Final Order dated February 18, 2002 by the State of Florida Board of
Medicine.
The following findings are made based upon clear and convincing evidence
concerning Respondent’s representation of Dr. Sarantis. The evidence involved
four general areas of alleged misconduct: (1) Charging of clearly excessive fees or
costs; (2) Conversion of client funds; (3) Failure to comply with trust accounting
record keeping requirements; and (4) Misrepresentation.
2. Dr. Sarantis wanted to resume the practice of medicine in Florida and
resolve any outstanding issues with the State of Florida Board of Medicine.3
According to Respondent, he was hired with respect to reinstatement of Dr.
Sarantis’ privileges to practice medicine. Although Respondent characterized this
task as complicated, daunting, and with a low likelihood of success, the testimony
of the witnesses established that the issues with respect to Dr. Sarantis’ medical
license were straightforward, relatively simple, and eventually resolved with the
Board of Medicine by Dr. Sarantis’ niece, Venus Zilieris. At the time that Ms.
Zilieris resolved the matter, she was a young and relatively inexperienced member
3 A Final Order issued by the Florida Board of Medicine on February 18, 2002, required Dr. Sarantis inter alia to pay a $10,000 fine and costs in the amount of $1,771.79 and to perform community service hours.
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of the Bar (having been admitted to the Bar in September of 2004 as opposed to
Respondent, who was admitted in 1983).
3. On or about May 24, 2004, Respondent prepared an invoice to
Dr. Sarantis stating an amount due of $25,000.00. This fact was admitted by virtue
of Respondent’s failure to answer the Bar’s Requests for Admissions. A copy of
the invoice was admitted into evidence as Bar Exhibit 1. The invoice further stated:
Invoice, reflecting agreed-upon non-refundable, retainer fee paid for legal fees; (and also, to include $5000.00 designated as Florida Board of Medicine fees, fines, including portions of past due amounts); professional services rendered by Member in good standing of THE FLORIDA BAR
4. In response to the invoice, Dr. Sarantis caused the sum of $25,000.00 to
be wire transferred to Respondent’s bank account on or about May 25, 2004. As a
result of the wire transfer, the sum of $24,967.00 (reflecting a $33.00 deduction
charged against the wire transfer) was deposited into Respondent’s Bank of
America bank account number 005490965967 (Bar Exhibit 7). The account was
not a trust account pursuant to Rule 5-1.1, et. seq. of the Rules Regulating The
Florida Bar.
5. Thereafter, Respondent requested additional sums from Dr. Sarantis.
As a result, Dr. Sarantis wire transferred $6,800.00 to Respondent’s aforesaid bank
account on or about June 2, 2004. The sum of $6,767.00 (reflecting a $33.00
deduction charged against the wire transfer) was deposited into Respondent’s Bank
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of America bank account (Bar Exhibit 7). Additionally, Dr. Sarantis wrote a check
to Respondent in the amount of $4,000.00, which check Respondent endorsed and
deposited into his Bank of America account (Bar Exhibit 7).
6. Respondent received a total of approximately $35,800.00 from
Dr. Sarantis for fees, costs, and payments for the Board of Medicine, related to the
representation. This fact was admitted by virtue of Respondent’s failure to answer
the Bar’s Requests for Admissions.
7. Other than the invoice admitted into evidence as Bar Exhibit 1, no
additional invoices were issued or provided by Respondent with respect to his
representation of Dr. Sarantis.
8. Dr. Sarantis’ niece, attorney Venus Zilieris, repeatedly requested, on
behalf of Dr. Sarantis, that Respondent provide an itemized bill and copies of any
work performed on the matter (Bar Exhibits 2 and 3).
9. Despite receiving the requests, Respondent failed to provide any
accounting nor did he provide copies of work performed.
10. Attorney Julie Gallagher, who became successor counsel for Dr.
Sarantis, testified that she did not rely on anything that Respondent had done in the
case and that other than a one page form, which had been completed by
Respondent, she could not find that Respondent had done any work. Ms. Zilieris,
who finally resolved her uncle’s problems with the Board of Medicine, testified
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that Respondent “hurt” rather than helped her uncle through Respondent’s failure
to take appropriate action.
11. Dr. Sarantis understood, based on representations from Respondent, that
Respondent had paid $6,000.00 to the Board of Medicine toward his fines. This
understanding was confirmed in an e-mail dated April 1, 2005, from Dr. Sarantis to
Respondent (Bar Exhibit 4).
12. In pertinent part, Dr. Sarantis stated in his e-mail dated April 1, 2005,
“As I recall well you had paid the Board almost $6000.00 which is halve [sic] of
my penalty fee.” Dr. Sarantis understood that Respondent was to pay $12,000.00
to the Board of Medicine from the funds that were provided to him. This fact was
established through the testimony of Ms. Zilieris and Dr. Sarantis and reflected in
Bar Exhibit 5.
13. After having received no confirming documentation and no
itemization of the use of his funds, Dr. Sarantis terminated Respondent’s
representation in about April 2005 (Bar Exhibit 5). Ms. Zilieris, by e-mail dated
April 28, 2005, to Respondent, wrote in pertinent part, “This will serve as your
official termination from representing Dr. Kosmas Sarantis…. Additionally, Dr.
Sarantis sent you funds in the amount of $12,000.00 to specifically pay his fines
and costs to the Board. Since you have not paid any of the funds (according to the
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compliance officer as of 4/27/05), remit a check payable to him and sent to the
address provided above within seven (7) days of this e-mail…” (Bar Exhibit 5).
14. Respondent did not return any funds to Dr. Sarantis and did not pay
any funds on behalf of Dr. Sarantis to the Board of Medicine.
15. Successor counsel resolved Dr. Sarantis’ issues with the State of
Florida, Board of Medicine.4
16. The Bar subpoenaed Respondent’s complete file, including all work
product performed regarding his representation and all documentation regarding
monies received from Dr. Sarantis, including precise amounts received for fees and
precise amounts of costs expended, as well as all records required by R. Regulating
Fla. Bar 5-1.2(b) pertaining to the representation (Bar Exhibit 7).
17. Respondent’s production of documents in response to the subpoena
revealed a “file” that was essentially devoid of any meaningful work and devoid of
any receipts for costs or payments. It was, at best, a disorganized mess.
Respondent’s original file, which was produced by Respondent in response to the
subpoena, was admitted as Bar Exhibit 9. Copies of file materials (in different
order than Bar Exhibit 9 and with some additions, including, but not limited to,
copies of the wire transfers in question) were admitted as part of Bar Exhibit 7.
4 The history of the case is reflected in Bar Exhibit 8, the Department of Health file concerning Dr. Sarantis.
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18. Respondent claimed that he engaged in “dozens and dozens of hours
of legal research” but no copies of any legal research were contained in his file.
Respondent never appeared at any formal hearing or proceeding on behalf of Dr.
Sarantis. Additionally, J. Blake Hunter, the attorney from the Department of
Health assigned to the Dr. Sarantis matter, testified that he had no meetings with
Respondent and engaged in no formal discovery with him.
19. Respondent’s did not provide services that were of any significant
benefit to Dr. Sarantis. This fact was established through the testimony of
successor counsel (first, Julie Gallagher and then, Venus Zilieris) as well as
through the Bar’s expert witness, attorney Allen Grossman and through Dr.
Sarantis. Despite repeated requests, neither Ms. Zilieris nor Dr. Sarantis could
ever determine what, if anything, Respondent had done with respect to Dr.
Sarantis’ case. At best, Respondent filed a pre-printed Election of Rights form
(Bar Exhibit 8) with the Board of Medicine and reviewed the Final Order of the
Medical Board provided to him by Dr. Sarantis (Bar Exhibit 9).
COUNT I — EXCESSIVE FEES
20. Respondent represented during the grievance proceedings that of the
approximately $35,800.00 paid to him by Dr. Sarantis, about $30,000.00 was his
fee and the remainder was for costs. In reality, there was no precise breakdown
between fees and costs. This was evident from Respondent’s chaotic files and lack
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of records.
21. From Respondent’s invoice and various representations, some portion
of the $35,800.00 was intended to be used for fees, some portion for costs, and
some portion for payment to the Board of Medicine. By virtue of Respondent’s
failure to respond to the Bar’s Requests for Admissions, he admitted that he
received $35,800 for “fees, costs, and payments for the Board of Medicine, related
to the representation.”
22. Given the lack of any payments to the Board of Medicine,
Respondent, in fact, used all of the funds for fees and/or costs. Further, the
amounts taken by Respondent for fees and costs were clearly excessive.
23. A review of the facts demonstrates that a lawyer of ordinary prudence
would be left with a definite and firm conviction that the amount taken by
Respondent exceeded a reasonable fee or cost for services provided to such a
degree as to constitute clear overreaching or an unconscionable demand by
Respondent [i.e. – because of the lack of meaningful work or documentation of any
costs]; or the fee or cost was secured by means of intentional misrepresentation
[i.e. – that a portion of the payments would be used/had been used for Board of
Medicine fees or fines] or the fee was secured by fraud upon the client, a nonclient
party, or any court, as to either entitlement to, or amount of, the fee. There was a
great deal of testimony to support this conclusion. Venus Zilieris testified that
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Respondent accomplished nothing of value and, in fact, his lack of work “hurt” Dr.
Sarantis rather than helped him. J. Blake Hunter testified that Dr. Sarantis’ case
was a simple matter involving the payment of fines and costs to the Board of
Medicine and completion of community service requirements, which conditions
had been previously required by the Final Order dated February 18, 2002.
Julie Gallagher testified that other than completion of a one page election of rights
form (Bar Exhibit 8), she saw nothing that Respondent had done. One of the first
things Attorney Gallagher did was to attend to the payment of Dr. Sarantis’
outstanding fine and costs to the Board of Medicine. She testified that Dr.
Sarantis’ case was not a matter which should have cost in excess of $35,000.00.
The Bar’s expert, Allen Grossman testified that one of the first steps Respondent
should have taken was to the pay the Board of Medicine. In Mr. Grossman’s
opinion, Dr. Sarantis was entitled to his money back from Respondent. In sum, the
matter involved the fairly simple task of bringing Dr. Sarantis into compliance with
the Board of Medicine’s requirements (primarily, the payment of the $11,771.59
and documentation of community service). Yet, in the approximate year during
which Respondent provided representation, he did not accomplish what should
have been the first step—pay the Board of Medicine. Moreover, Respondent’s sole
invoice in the case accounted for only $25,000.00 of the amount paid, not the full
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amount received, and that invoice provided that $5,000.00 was designated for the
Board of Medicine.
24. Respondent attempted to defend his actions by claiming that Dr.
Sarantis was already delinquent in his payment to the Board of Medicine at the
time that Respondent was retained, making resolution of the case complicated and
unlikely of success. During May 2004, the Department of Health filed a new
administrative complaint against Dr. Sarantis for failing to comply with the prior
order. However, Dr Sarantis, on his own without counsel, had previously
requested an extension of time to pay the fine and costs, which request had not
been ruled upon at the time that Respondent was retained. As reflected in an e-mail
dated May 23, 2005, from J. Blake Hunter to attorney Julie Gallagher (Bar Exhibit
8), Mr. Hunter stated; “I agree that the only thing Dr. Sarantis was guilty of in
May 2004 was not doing the community service, which was not tolled since it is
not part of probation.” Moreover, Respondent’s position made little sense because
if Respondent believed that his client was already delinquent in the payment,
Respondent had cause to act with more dispatch, not less, in making the payment.
Also, Respondent claimed that he was working on restoring Dr. Sarantis’ Medicare
privileges however Respondent’s file showed no work in this regard. Respondent’s
claims about Medicare made little sense because in order for Dr. Sarantis to have
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Medicare privileges, Dr. Sarantis needed a medical license. Thus, Respondent first
needed to resolve the Board of Medicine issues.
25. Respondent further defended his actions by claiming that his invoice,
which he referred to as his retainer agreement, provided that the fee was
“nonrefundable.” First, the invoice did not cover all the funds received by
Respondent, which totaled $35,800.00. Second, by designating a retainer as
nonrefundable, a lawyer does not automatically insulate himself from the claim
that the fee is excessive. Bain v. Weiffenbach, 590 So.2d 544 (Fla. 2nd DCA 1991).
Whether the fee is excessive under the circumstances is governed by the applicable
disciplinary rule rather than use of the description “nonrefundable retainer.” Bain
v. Weiffenbach, 590 So.2d at 545. Third, from Respondent’s own file, it cannot be
ascertained that he actually performed any legal services of any significant benefit
or paid any costs. Although Respondent claims to have spent time, there is no
corroboration of Respondent’s claim by way of documentary evidence or
testimony of any other person. Fourth, even if Respondent spent some time on the
case, it has been recognized that all the time a lawyer spends on a case is not
necessarily the amount of time for which he can properly charge his client; rather,
he may charge for time that reasonably should be devoted to accomplish a
particular task. The Florida Bar v. Richardson, 574 So.2d 60 (Fla. 1990). Fifth, as
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discussed in greater detail in the following sections, Respondent obtained a portion
of the funds through intentional misrepresentation.
26. By the conduct set forth above, Respondent violated R. Regulating
Fla. Bar 4-1.5(a) [An attorney shall not enter into an agreement for, charge, or
collect an illegal, prohibited, or clearly excessive fee or cost, ….. A fee or cost is
clearly excessive when: (1) after a review of the facts, a lawyer of ordinary
prudence would be left with a definite and firm conviction that the fee or the cost
exceeds a reasonable fee or cost for services provided to such a degree as to
constitute clear overreaching or an unconscionable demand by the attorney; or (2)
the fee or cost is sought or secured by the attorney by means of intentional
misrepresentation or fraud upon the client, a nonclient party, or any court, as to
either entitlement to, or amount of, the fee.].
COUNT II --- CONVERSION OF CLIENT FUNDS
27. Because some portions of the amounts received from Dr. Sarantis
clearly were to be used for payments to the Board of Medicine and some portions
for costs yet to be incurred, Respondent was required to hold such portions in trust.
28. Respondent failed to deposit any funds in trust and instead, as
admitted, deposited all of the funds in his operating account. During cross-
examination, Respondent claimed to have a trust account, yet he admitted he had
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never used the account on behalf of any client and had never deposited any money
into the trust account.
29. Dr. Sarantis entrusted funds to Respondent for the specific purpose of
having Respondent make payments to the Board of Medicine. This fact was
established in a number of different ways. First, Respondent failed to respond to
the Bar’s Requests for Admissions in this regard. Second, Respondent’s own
invoice designated $5,000.00 for the Board of Medicine. Respondent attempted to
argue that the form language in small type on the bottom of his invoice somehow
negated the specific designation (in larger type) for the Board of Medicine. I do
not find that the invoice was ambiguous in its specific designation for the Board of
Medicine. Also, it is generally held that any ambiguity should be construed against
the drafter (Respondent) and that a specific provision takes precedence over a
printed, “boilerplate” term. Coastal Caisson Drill Co., Inc. v. American Casualty
Co. of Reading, Pa., 523 So.2d 791 (Fla. 2nd DCA 1988). Third, what is not
present in this case is significant. There was no invoice accounting for all the
funds received or any record as to how the money was used. As admitted,
Respondent has no receipts for any costs paid with respect to the representation of
Dr. Sarantis. As admitted, he has no opinion letters from any experts or
consultants with respect to his representation of Dr. Sarantis. In response to the e-
mail of Dr. Sarantis of April 1, 2005 (in which Dr. Sarantis confirmed that
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Respondent had paid funds to the Board of Medicine), Respondent did not deny
that he was supposed to have made that payment. Fourth, the Bar auditor, Carlos
Ruga, testified that $5,000 from the initial wire transfer of $25,000.00 plus the
additional wire transfer of $6,800.00 amounted to $11,800.00. Significantly, all
those funds were disbursed from Respondent’s bank account during June 2004.5
The amount owed by Dr. Sarantis to the Board of Medicine was $11,771.79. It
was more that mere coincidence that the two wires included precisely the amount
needed to pay the Board (in addition to the fee of $20,000.00). The amounts and
timing of the wires corroborated the testimony of Ms. Zilieris and Dr. Sarantis that
they understood that Respondent had informed them that he would pay the Board
of Medicine and in fact, later told them that he had paid the Board.
30. Respondent did not apply said funds for the specific purpose for
which they were entrusted. Respondent withdrew all of the funds during June
2004. He paid no money to the Board of Health.
31. Respondent refused to account for and deliver such funds upon
demand. Respondent admitted that he never provided an accounting. However, he
sent correspondence indicating that Dr. Sarantis “would be entitled to receive any
unused expenditure funds” (Respondent’s letter dated 14 December 2004, Bar
Exhibit 10), that “When I complete the accounting, hopefully by early next week, 5 In fact, the balance of Respondent’s Bank of America account on June 30, 2004, was an overdraft in the amount of $7,315.17
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he may be entitled to certain funds…” (Respondent’s e-mail to Ms. Zilieris dated
May 19, 2005, Bar Exhibit 10), and that “It is a priority in terms of the file and the
accounting, of that you may be assured.” (Respondent’s e-mail to Ms. Zilieris
dated May 27, 2005, Bar Exhibit 10). Despite these representations and the passage
of over three years, Respondent never accounted to Dr. Sarantis or Ms. Zilieris, nor
did he provide any accounting in the disciplinary proceeding.
32. By the conduct set forth above, Respondent violated R. Regulating
Fla. Bar 4-1.15 [A lawyer shall comply with the Florida Bar Rules Regulating
Trust Accounts]; R. Regulating Fla. Bar 5-1.1(a)(1) [A lawyer shall hold in trust,
separate from the lawyer’s own property, funds and property of clients or third
persons that are in a lawyer’s possession in connection with a representation. All
funds, including advances for fees, costs, and expenses, shall be kept in a separate
bank or savings and loan association account maintained in the state where the
lawyer’s office is situated or elsewhere with the consent of the client or third
person and clearly labeled and designated as a trust account. A lawyer may
maintain funds belonging to the lawyer in the trust account in an amount no more
than is reasonably sufficient to pay bank charges relating to the trust account..];
and/or R. Regulating Fla. Bar 5-1.1(b) [Money or other property entrusted to an
attorney for a specific purpose, including advances for fees, costs, and expenses, is
held in trust and must be applied only to that purpose. Money and other property
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of clients coming into the hands of an attorney are not subject to counterclaim or
setoff for attorney’s fees, and a refusal to account for and deliver over such
property upon demand shall be deemed a conversion.].
COUNT III --- TRUST ACCOUNTING
33. Because Respondent received funds which he was required to hold in
trust, Respondent was required to maintain minimum trust accounting records.
34. Respondent did not maintain minimum trust accounting records or
retain those records for the required period of 6 years. By virtue of his failure to
respond to the Bar’s Requests for Admissions, Respondent admitted that he did not
maintain trust accounting records. Moreover, Respondent admitted during his
testimony that he never placed any funds in a trust account.
35. Respondent’s failure to maintain minimum trust accounting records,
included but was not limited to, the failure to maintain documentary support for all
disbursements and transfers, the failure to maintain a separate cash receipts or
disbursement journal and the failure to maintain a separate file or ledger for each
client showing all individual receipts, disbursement, or transfers.
36. By the conduct set forth above, Respondent violated R. Regulating
Fla. Bar 5-1.2(b) [The following are the minimum trust accounting records that
shall be maintained: (1) A separate bank or savings and loan association account or
accounts in the name of the lawyer or law firm and clearly labeled and designated
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as a “trust account.” (2) Original or duplicate deposit slips and, in the case of
currency or coin, an additional cash receipts book, clearly identifying: (A) the date
and source of all trust funds received; and (B) the client or matter for which the
funds were received. (3) Original canceled checks, all of which must be numbered
consecutively, or, if the financial institution wherein the trust account is maintained
does not return the original checks, copies that include all endorsements, as
provided by the financial institution. (4) Other documentary support for all
disbursements and transfers from the trust account. (5) A separate cash receipts and
disbursements journal, including columns for receipts, disbursements, transfers,
and the account balance, and containing at least: (A) the identification of the client
or matter for which the funds were received, disbursed, or transferred; (B) the date
on which all trust funds were received, disbursed, or transferred; (C) the check
number for all disbursements; and (D) the reason for which all trust funds were
received, disbursed, or transferred. (6) A separate file or ledger with an individual
card or page for each client or matter, showing all individual receipts,
disbursements, or transfers and any unexpended balance, and containing: (A) the
identification of the client or matter for which trust funds were received, disbursed,
or transferred; (B) the date on which all trust funds were received, disbursed, or
transferred; (C) the check number for all disbursements; and (D) the reason for
which all trust funds were received, disbursed, or transferred. (7) All bank or
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savings and loan association statements for all trust accounts.]; and/or R.
Regulating Fla. Bar 5-1.2(d) [A lawyer or law firm that receives and disburses
client or third party funds or property shall maintain the records required by this
chapter for 6 years subsequent to the final conclusion of each representation in
which the trust funds or property were received.].
COUNT IV --- MISREPRESENTATION
37. According to Respondent’s invoice, $5,000.00 of the funds invoiced
were designated for a specific purpose as payment towards Florida Board of
Medicine fees and fines (Bar Exhibit 1).
38. At the time Respondent drafted the invoice, he understood that the
bank in Greece would not wire the funds unless Respondent inserted assurances
that some portion of the funds were for governmental purposes. This fact was
established through cross-examination of Respondent.
39. By inserting that language, Respondent made a material
representation to the bank that $5,000.00 of the funds were for the purpose of
Florida Board of Medicine fees, fines, including portions of past due amounts.
40. At the time that Respondent inserted that language, Respondent knew
that Dr. Sarantis owed no “fees” to the Board of Medicine and no “fees” were
anticipated. This fact was established through cross-examination of Respondent.
It was equally clear that Respondent knew Dr. Sarantis owed $10,000.00 fine to
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the Board of Medicine and $1,771.79 for costs as reflected by the Final Order from
the Board of Medicine dated February 18, 2002.
41. At the time Respondent inserted that language, he had no intent to pay
anything to the Florida Board of Medicine on behalf of Dr. Sarantis; rather,
Respondent’s intent was to include the $5,000.00 as part of his fee. Respondent’s
intent was established by Respondent’s own letter (Bar Exhibit 6), and through
cross-examination of Respondent.
42. By letter dated March 17, 2006 to The Florida Bar, Respondent
described his intent in pertinent part as follows:
The language about the Board of Medicine in the earlier paragraph of our only written agreement was a source of great frustration to me but arose solely because the Doctor was insistent not about where the monies should go but about what his father’s Bank in Greece was told. I never understood why it was any of the bank’s business, but the Doctor insisted that the Agreement had to mention the Board. Utterly at a loss to find fully acceptable language for all, I told the Doctor that the Agreement clearly would show that no monies were going to the Board, but I could try to design language that would allow for the theoretical opportunity for me to reduce my fee by $5000 and give that money to the Board if and when, upon case examination, I elected to reduce my fee…though I had already thoroughly ascertained I could not, should not, must not, reduce my already discounted fee for specialized and very complex services. I told the Doctor that he could try different language to “satisfy” the Bank in Greece, so long as the Agreement protected my firm by accurately reflecting that the entire fee was a one-time, non-refundable flat fee, not to include ANY costs, NO fines, NO fees, or anything other than, in effect, unlimited numbers of “pre-paid” legal hours. (Bar Exhibit 6).
24
43. By Respondent’s own admission, Respondent falsely
represented to the bank in Greece that the $25,000.00 included $5,000.00
designated as Florida Board of Medicine fees, fines, including portions of
past due amounts and he intended the bank to rely on that statement when
Respondent, in his own mind, was free to use said funds for his fees and did
so.
44. By the conduct set forth above, Respondent violated R.
Regulating Fla. Bar 4-4.1(a) [In the course of representing a client a lawyer
shall not knowingly make a false statement of material fact or law to a third
person;]; and/or R. Regulating Fla. Bar 4-8.4(c) [A lawyer shall not engage
in conduct involving dishonesty, fraud, deceit, or misrepresentation…].
C. Narrative Summary of SC08-575:
The following factual allegations were admitted because of
Respondent’s default.
1. Respondent is, and at all times material to this action was, a member
of The Florida Bar and subject to the jurisdiction and disciplinary rules of the
Supreme Court of Florida.
2. Fifteenth Judicial Circuit Grievance Committee "E", at a duly
constituted meeting, and by majority vote of the eligible members present, found
25
probable cause for Respondent's violation of the Rules Regulating The Florida Bar.
The presiding member of the grievance committee approved the Complaint.
3. During the course of investigating a Bar grievance by Michael Taksar,
the Bar sent a letter dated January 4, 2008, to Respondent, advising him of the
requirements of R. Regulating Fla. Bar 1-3.3 which provides as follows:
Each member of The Florida Bar shall designate an official Bar name, mailing address, and business telephone number. If the address given is not the physical location or street address of the principal place of employment, then such information shall also be given. Each member shall promptly notify the executive director of any changes in any information required by this rule. 4. A true copy of the Bar’s letter (without enclosures) was attached to
and incorporated in the Bar’s complaint as Exhibit 1.
5. This letter, in pertinent part, noted that Respondent’s physical location
on file with the Bar’s membership records was 2500 North Military Trail, #790,
Boca Raton, Florida 33431.
6. The letter also stated as follows:
Is this address an abandoned office? What is the physical address or street address of your principal place of employment? Please note that if your physical or street address is other than what the Bar currently has on file, you must change your information with membership records. This office can not change your membership information. 7. Respondent requested an extension of time to respond to the Bar’s
letter and by letter dated January 20, 2008, which was received by the Bar on
26
January 24, 2008, Respondent stated, in pertinent part, as follows: “The address of
the PO Box is characteristic of many listed Bar members and the physical
addresses [sic] were correct at the time provided.” A true copy of Respondent’s
letter was attached to and incorporated in the Bar’s complaint as Exhibit 2.
8. Despite being informed of the requirements of R. Regulating Fla. Bar
1-3.3 and despite being explicitly requested to provide his physical location,
Respondent did not do so.
9. Thereafter, a Bar investigator went to 2500 North Military Trail and
determined that it was a 4 story office building with no Suite 790. The highest
numbered office was 490, which was occupied by Congressman Robert Wexler.
10. The Property Manager for the building informed the Bar investigator
that she vaguely remembered Respondent but stated he had not been a tenant for
the past 5 years.
11. Michael Taksar brought suit against Respondent in the Circuit Court
of the Fifteenth Judicial Circuit in and for Palm Beach County, Case
No. 502006CA005977XXXXMB, alleging that Respondent owed Taksar
approximately $75,389.75, plus interest, pursuant to a number of promissory notes
and loans.
12. Service of process on Respondent was issued and returned un-served.
13. A search of the online docket records for the Clerk of Courts of Palm
27
Beach County revealed that in addition to the suit brought by Michael Taksar,
there were multiple civil matters where service of process was issued as to
Respondent and returned without service: 1. Leonard J. Kaplan v. Joseph A.
Harrison, Case No. 502006CA000352XXXXMB (service returned unexecuted and
case dismissed for want of prosecution on January 10, 2007); 2. Leonard J. Kaplan
v. Joseph A. Harrison, Case No. 502007CA007060XXXXMB (service returned
unexecuted; case pending); 3. MBNA America Bank v. Joseph Harrison, Case No.
502005CA001912XXXXMB (service returned unexecuted and case eventually
voluntarily dismissed without service); 4. AMICA Mutual Insurance Company as
subrogee of Manish Hirapar v. Lillian Harrison and Joseph Harrison, Case
No. 502006CC014899XXXXMB (service as to Joseph Harrison returned
unexecuted, no personal service shown on docket, defendants served through
notice, and answer filed).
14. Respondent failed to furnish his physical location to the Bar in a
timely fashion and this failure was motivated by Respondent’s desire to evade
service of process in civil matters, including but not limited to the suit by Michael
Taksar.
COUNT I
15. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
28
16. By failing to promptly furnish his physical location to the Bar,
Respondent violated R. Regulating Fla. Bar 1-3.3 [Each member of The Florida
Bar shall designate an official Bar name, mailing address, and business telephone
number. If the address given is not the physical location or street address of the
principal place of employment, then such information shall also be given. Each
member shall promptly notify the executive director of any changes in any
information required by this rule.].
17. By failing to promptly furnish his physical location to the Bar in order
to evade service of process of civil matters, Respondent violated R. Regulating Fla.
Bar 3-4.3 [The commission by a lawyer of any act that is unlawful or contrary to
honesty and justice, whether the act is committed in the course of the attorney’s
relations as an attorney or otherwise, whether committed within or outside the state
of Florida, and whether or not the act is a felony or misdemeanor, may constitute a
cause for discipline.].
COUNT II
18. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
19. By additional letter dated February 1, 2008, the Bar again advised
Respondent of the requirements of R. Regulating Fla. Bar 1-3.3 and required him
to provide the grievance committee with his physical location or street address of
29
his principal place of employment within 10 days. A true copy of this letter
(without enclosures) was attached to and incorporated in the Bar’s complaint as
Exhibit 3.
20. Pursuant to R. Regulating Fla. Bar 3-7.11(b) and (c), this letter was
sent via certified mail, return receipt requested, to Respondent’s Post Office Box,
which was the last known address of the Respondent according to the records of
The Florida Bar.
21. Respondent did not claim the certified mail and did not make any
response to Exhibit 3.
22. By failing to respond in writing to the Bar’s investigative inquiry,
Respondent violated R. Regulating Fla. Bar 4-8.4(g) and 4-8.4(g)(2)[A lawyer
shall not: (g) fail to respond, in writing, to any official inquiry by Bar counsel or a
disciplinary agency, as defined elsewhere in these rules, when Bar counsel or the
agency is conducting an investigation into the lawyer’s conduct. A written
response shall be made: (2) within 10 days of the date of any follow-up written
investigative inquiries by Bar counsel, grievance committee, or board of
governors.].
D. Narrative Summary of SC08-804:
The following factual allegations were admitted because of
Respondent’s default.
30
1. Respondent is, and at all times material to this action was, a member
of The Florida Bar and subject to the jurisdiction and disciplinary rules of the
Supreme Court of Florida.
2. Fifteenth Judicial Circuit Grievance Committee "E", at a duly
constituted meeting, and by majority vote of the eligible members present, found
probable cause for Respondent's violation of the Rules Regulating The Florida Bar.
The presiding member of the grievance committee approved the instant Complaint.
3. In January 2004, Leonard J. Kaplan hired Harrison to assist him in
filing administrative complaints with the Department of Health against a
psychologist, Linda Sherby, Ph.D., and a psychiatrist, Sharman Allen, M.D.
4. Kaplan’s daughter had been treated by both providers and had died in
a car accident within several minutes of leaving the office of Dr. Sherby.
5. By check dated January 26, 2004, Kaplan paid Harrison $40,000.00.
6. On the back of the check, Harrison wrote: “Legal fees for complete
project and consultation for administrative complaint undertaking–By endorsement
acknowledges above.”
7. By check dated February 16, 2004, Kaplan paid Harrison an
additional $5,000.00 and by check dated April 17, 2004, Kaplan paid an additional
$10,000.00.
8. In total, Kaplan paid Harrison $55,000.00.
31
9. Harrison made various representations to Kaplan and to Seldon E.
Patty, a lawyer in Kaplan’s home state of North Carolina, that Harrison had filed
administrative complaints with the Department of Health against Dr. Sherby and
Dr. Allen.
10. Based on Harrison’s representations, Kaplan, in fact, initially believed
that Respondent had filed the administrative complaints in November 2004.
Harrison’s representations include, but are not necessarily limited to, the
following:
A. Harrison, on or about November 10, 2004, wrote a handwritten
note stating: “This is to advise that I Joseph Harrison will have Medical complaint
totally complete and it will be filed by tonight 11/10/04.” A copy of this note was
attached to and incorporated in the Bar’s complaint as Composite Exhibit 1.
B. Harrison, by a handwritten note dated May 27, 2005, agreed to
provide by June 6th “documentary evidence concerning the status of the DOH
complaints against Drs. Allen & Sherby.” (Emphasis added). This note was
contained in Composite Exhibit 1.
C. By facsimile transmission dated June 20, 2005, to Kaplan,
Harrison represented that he was awaiting the response to the filed complaints:
“I am sorry that I was over [sic] optimistic about the time table for the DOH
Response…I have no method to explain to you how grossly incompetent can be the
32
complaint process. Last week I had a DOH Complaint letter on a case that has
been sitting there since 1999.” A copy of this fax was attached to and incorporated
in the Bar’s complaint as Exhibit 2.
D. North Carolina attorney Patty sent an e-mail dated July 18,
2005 to Harrison stating, in part, that: “It has been almost three weeks since you
promised to send me a copy of the materials which you filed with the Florida
Department of Health on behalf of Leonard and Tobee Kaplan. I want to believe
that you are a man of your word as you have indicated in your e-mails.” A copy of
this e-mail was attached to and incorporated in the Bar’s complaint as Exhibit 3.
E. In response, Harrison sent an e-mail, dated July 18, 2005,
wherein he stated: “Sorry, I had wanted to furnish more of a substantive update for
which I am somewhat at DOH’s mercy; though I’ll be in touch very soon.” A copy
of the e-mail was attached to and incorporated in the Bar’s complaint as Exhibit 4.
F. By e-mail dated July 20, 2005, to Harrison, Patty again
requested information on the filed complaints and by e-mail, dated July 21, 2005,
Harrison answered, in part: “But I cannot run what is notoriously acknowledged
(by virtually all knowledgeable observers) to be characterized fairly, I’m afraid, as
a nightmarish State governmental bureaucratic maze of inefficacy, according to
his, your, or even my timetable(s).” These e-mails were attached to and
incorporated in the Bar’s complaint as Composite Exhibit 5.
33
G. Patty sent an e-mail dated July 26, 2005, to Harrison stating that
“…you have failed to provide any written evidence that you have in fact file [sic]
anything with the Florida Department of Health on behalf of Leonard and Tobee
Kaplan,” and in response, Harrison sent an e-mail dated July 27, 2005, in which he
represented that the DOH was not prompt in its response to his filings: “It is a
credit to you that you will, I am certain, understand that I do not control an
incompetent and myriad of complexities-filled bureaucratic State governmental
regulatory enterprise. Anyhow, I am genuinely quite distressed that you now are
doubting me.” A copy of these e-mails were attached to and incorporated in the
Bar’s complaint as Composite Exhibit 6.
H. In truth and in fact, Patty and Harrison exchanged a series of e-
mails where Patty repeatedly attempted to obtain evidence of Harrison’s filing of
the complaints, and Harrison never indicated that the complaints had not been filed
but attempted to blame the Department of Health for failing to promptly respond.
These e-mails from June 28, 2005 through July 27, 2005, were attached to and
incorporated in the Bar’s complaint as Composite Exhibit 7.
11. Harrison’s representations concerning his filing of the administrative
complaints were false and material to his representation of Kaplan.
12. According to the records of the Department of Health, Harrison,
during the years 2004 and 2005, did not file any administrative complaints for
34
himself or any other person.
13. On or about November 8, 2005, Kaplan terminated Respondent’s
representation.
14. Kaplan hired the firm of Holland & Knight who pursued the
representation.
COUNT I
15. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
16. By falsely representing to his client and to North Carolina attorney,
Seldon E. Patty, that he had filed administrative complaints with the Department of
Health when he had not, and/or by failing to reveal the lack of filing, Respondent
violated R. Regulating Fla. Bar 3-4.3 [The commission by a lawyer of any act that
is unlawful or contrary to honesty and justice, whether the act is committed in the
course of the attorney's relations as an attorney or otherwise, whether committed
within or outside the state of Florida, and whether or not the act is a felony or
misdemeanor, may constitute a cause for discipline.] and/or R. Regulating Fla. Bar.
4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit,
or misrepresentation…].
35
COUNT II
17. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
18. Harrison failed to perform the services that he was hired and paid to
perform by Kaplan and otherwise failed to competently, diligently, and promptly
represent Kaplan.
19. By said failures, Respondent violated R. Regulating Fla. Bar 4-1.1
[A lawyer shall provide competent representation to a client.] and/or R. Regulating
Fla. Bar 4-1.3 [A lawyer shall act with reasonable diligence and promptness in
representing a client.].
COUNT III
20. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
21. Harrison failed to keep Kaplan apprised of the status of his matter and
failed to provide Kaplan and Kaplan’s North Carolina attorney with appropriate
information in response to their repeated requests.
22. By said conduct, Respondent violated Former R. Regulating Fla. Bar
4-1.4(a) [A lawyer shall keep the client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.].
36
COUNT IV
23. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
24. Kaplan paid a total of $55,000 to Harrison.
25. With respect to the amounts paid, Harrison represented to the Bar that
$40,000.00 was his fee and $15,000.00 was for reimbursement of expenditures for
consultants.
26. Harrison never accounted to Kaplan in any manner for the amounts
received by him.
27. Harrison was requested by the Bar to produce a complete accounting
of all costs expended and did not do so.
28. After a review of the facts of this matter, a lawyer of ordinary
prudence would be left with a definite and firm conviction that the amounts
received by Respondent exceeded a reasonable fee and/or cost for services
provided to such a degree as to constitute clear, overreaching or an unconscionable
demand by the attorney.
29. By the above conduct, Respondent violated R. Regulating Fla. Bar
4-1.5(a) [An attorney shall not enter into an agreement for, charge, or collect an
illegal, prohibited, or clearly excessive fee or cost…].
37
COUNT V
30. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
31. Despite repeated demands of Kaplan and counsel on his behalf,
Respondent never accounted to Kaplan for the monies he received for the
representation.
32. By Respondent’s own admission, $15,000.00 of the total $55,000.00
received was for a specific purpose, concerning expenditures for consultants.
33. Kaplan made repeated demands to an accounting of the funds received
by Harrison, as did the Bar, and Harrison failed to account.
34. Respondent failed to use the entrusted funds for the purpose for which
they were entrusted and failed to properly account for the funds.
35. By said conduct, Respondent violated R. Regulating Fla. Bar 5-1.1(b)
[Money or other property entrusted to an attorney for a specific purpose, including
advances for fees, costs, and expenses, is held in trust and must be applied only to
that purpose. Money and other property of clients coming into the hands of an
attorney are not subject to counterclaim or setoff for attorney's fees, and a refusal
to account for and deliver over such property upon demand shall be deemed a
conversion.] and/or R. Regulating Fla. Bar 5-1.1(e) [Upon receiving funds or other
property in which a client or third person has an interest, a lawyer shall promptly
38
notify the client or third person. Except as stated in this rule or otherwise
permitted by law or by agreement with the client, a lawyer shall promptly deliver
to the client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property.].
COUNT VI
36. The Florida Bar incorporated paragraphs 1 through 14 as if fully
re-written.
37. By letter dated February 19, 2008 sent certified mail to Respondent’s
record Bar address, the Bar made a follow-up investigative inquiry to Respondent
and required his written response.
38. Respondent failed to make any response.
39. By said conduct, Respondent violated R. Regulating Fla. Bar 4-8.4(g)
and/or R. Regulating Fla. Bar 4-8.4(g)(2) [A lawyer shall not: (g) fail to respond, in
writing, to any official inquiry by Bar counsel or a disciplinary agency, as defined
elsewhere in these rules, when Bar counsel or the agency is conducting an
investigation into the lawyer's conduct. A written response shall be made:
…(2) within 10 days of the date of any follow-up written investigative inquiries by
Bar counsel, grievance committee, or board of governors;…].
39
III. RECOMMENDATION AS TO GUILT:
I recommend that Respondent be found guilty by clear and convincing
evidence of violating the Rules Regulating The Florida Bar set forth below.
A. Violations in SC08-76:
As to Count I, Respondent violated R. Regulating Fla. Bar 4-1.5(a) [An
attorney shall not enter into an agreement for, charge, or collect an illegal,
prohibited, or clearly excessive fee or cost, or a fee generated by employment that
was obtained through advertising or solicitation not in compliance with the Rules
Regulating The Florida Bar. A fee or cost is clearly excessive when: (1) after a
review of the facts, a lawyer of ordinary prudence would be left with a definite and
firm conviction that the fee or the cost exceeds a reasonable fee or cost for services
provided to such a degree as to constitute clear overreaching or an unconscionable
demand by the attorney; or (2) the fee or cost is sought or secured by the attorney
by means of intentional misrepresentation or fraud upon the client, a nonclient
party, or any court, as to either entitlement to, or amount of, the fee.].
As to Count II, Respondent violated R. Regulating Fla. Bar 4-1.15 [A lawyer
shall comply with the Florida Bar Rules Regulating Trust Accounts]; R.
Regulating Fla. Bar 5-1.1(a)(1) [A lawyer shall hold in trust, separate from the
lawyer’s own property, funds and property of clients or third persons that are in a
lawyer’s possession in connection with a representation. All funds, including
40
advances for fees, costs, and expenses, shall be kept in a separate bank or savings
and loan association account maintained in the state where the lawyer’s office is
situated or elsewhere with the consent of the client or third person and clearly
labeled and designated as a trust account. A lawyer may maintain funds belonging
to the lawyer in the trust account in an amount no more than is reasonably
sufficient to pay bank charges relating to the trust account..]; and/or R. Regulating
Fla. Bar 5-1.1(b) [Money or other property entrusted to an attorney for a specific
purpose, including advances for fees, costs, and expenses, is held in trust and must
be applied only to that purpose. Money and other property of clients coming into
the hands of an attorney are not subject to counterclaim or setoff for attorney’s
fees, and a refusal to account for and deliver over such property upon demand shall
be deemed a conversion.].
As to Count III, Respondent violated R. Regulating Fla. Bar 5-1.2(b) [The
following are the minimum trust accounting records that shall be maintained: (1) A
separate bank or savings and loan association account or accounts in the name of
the lawyer or law firm and clearly labeled and designated as a “trust account.” (2)
Original or duplicate deposit slips and, in the case of currency or coin, an
additional cash receipts book, clearly identifying: (A) the date and source of all
trust funds received; and (B) the client or matter for which the funds were received.
(3) Original canceled checks, all of which must be numbered consecutively, or, if
41
the financial institution wherein the trust account is maintained does not return the
original checks, copies that include all endorsements, as provided by the financial
institution. (4) Other documentary support for all disbursements and transfers from
the trust account. (5) A separate cash receipts and disbursements journal, including
columns for receipts, disbursements, transfers, and the account balance, and
containing at least: (A) the identification of the client or matter for which the funds
were received, disbursed, or transferred; (B) the date on which all trust funds were
received, disbursed, or transferred; (C) the check number for all disbursements;
and (D) the reason for which all trust funds were received, disbursed, or
transferred. (6) A separate file or ledger with an individual card or page for each
client or matter, showing all individual receipts, disbursements, or transfers and
any unexpended balance, and containing: (A) the identification of the client or
matter for which trust funds were received, disbursed, or transferred; (B) the date
on which all trust funds were received, disbursed, or transferred; (C) the check
number for all disbursements; and (D) the reason for which all trust funds were
received, disbursed, or transferred. (7) All bank or savings and loan association
statements for all trust accounts.]; and/or R. Regulating Fla. Bar 5-1.2(d) [A lawyer
or law firm that receives and disburses client or third party funds or property shall
maintain the records required by this chapter for 6 years subsequent to the final
42
conclusion of each representation in which the trust funds or property were
received.].
As to Count IV, Respondent violated R. Regulating Fla. Bar 4-4.1(a) [In the
course of representing a client a lawyer shall not knowingly make a false statement
of material fact or law to a third person;]; and/or R. Regulating Fla. Bar 4-8.4(c) [A
lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation…].
B. Violations in SC08-575:
As to Count I, Respondent violated R. Regulating Fla. Bar 1-3.3 [Each
member of The Florida Bar shall designate an official Bar name, mailing address,
and business telephone number. If the address given is not the physical location or
street address of the principal place of employment, then such information shall
also be given. Each member shall promptly notify the executive director of any
changes in any information required by this rule.]. and R. Regulating Fla. Bar 3-4.3
[The commission by a lawyer of any act that is unlawful or contrary to honesty and
justice, whether the act is committed in the course of the attorney’s relations as an
attorney or otherwise, whether committed within or outside the state of Florida,
and whether or not the act is a felony or misdemeanor, may constitute a cause for
discipline.].
43
As to Count II, Respondent violated R. Regulating Fla. Bar 4-8.4(g) and
4-8.4(g)(2)[A lawyer shall not: (g) fail to respond, in writing, to any official
inquiry by Bar counsel or a disciplinary agency, as defined elsewhere in these
rules, when Bar counsel or the agency is conducting an investigation into the
lawyer’s conduct. A written response shall be made: (2) within 10 days of the date
of any follow-up written investigative inquiries by Bar counsel, grievance
committee, or board of governors.].
C. Violations in SC08-804:
As to Count I, Respondent violated R. Regulating Fla. Bar 3-4.3 [The
commission by a lawyer of any act that is unlawful or contrary to honesty and
justice, whether the act is committed in the course of the attorney's relations as an
attorney or otherwise, whether committed within or outside the state of Florida,
and whether or not the act is a felony or misdemeanor, may constitute a cause for
discipline.] and/or R. Regulating Fla. Bar. 4-8.4(c) [A lawyer shall not engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation…].
As to Count II, Respondent violated R. Regulating Fla. Bar 4-1.1 [A lawyer
shall provide competent representation to a client.] and/or R. Regulating Fla. Bar
4-1.3 [A lawyer shall act with reasonable diligence and promptness in representing
a client.].
44
As to Count III, Respondent violated Former R. Regulating Fla. Bar 4-1.4(a)
[A lawyer shall keep the client reasonably informed about the status of a matter
and promptly comply with reasonable requests for information.].
As to Count IV, Respondent violated R. Regulating Fla. Bar 4-1.5(a) [An
attorney shall not enter into an agreement for, charge, or collect an illegal,
prohibited, or clearly excessive fee or cost…].
As to Count V, Respondent violated R. Regulating Fla. Bar 5-1.1(b) [Money
or other property entrusted to an attorney for a specific purpose, including
advances for fees, costs, and expenses, is held in trust and must be applied only to
that purpose. Money and other property of clients coming into the hands of an
attorney are not subject to counterclaim or setoff for attorney's fees, and a refusal
to account for and deliver over such property upon demand shall be deemed a
conversion.] and/or R. Regulating Fla. Bar 5-1.1(e) [Upon receiving funds or other
property in which a client or third person has an interest, a lawyer shall promptly
notify the client or third person. Except as stated in this rule or otherwise
permitted by law or by agreement with the client, a lawyer shall promptly deliver
to the client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property.].
As to Count VI, Respondent violated R. Regulating Fla. Bar 4-8.4(g) and/or
45
R. Regulating Fla. Bar 4-8.4(g)(2) [A lawyer shall not: (g) fail to respond, in
writing, to any official inquiry by Bar counsel or a disciplinary agency, as defined
elsewhere in these rules, when Bar counsel or the agency is conducting an
investigation into the lawyer's conduct. A written response shall be made:
…(2) within 10 days of the date of any follow-up written investigative inquiries by
Bar counsel, grievance committee, or board of governors;…].
IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS
I considered the following Rules Regulating The Florida Bar, Florida
Standards for Imposing Lawyer Sanctions (Florida Standards) before
recommending discipline.
R. Regulating Fla. Bar 3-5.1(f) provides: to recommending discipline:
Disbarment is the presumed sanction for lawyers found guilty of theft from a lawyer’s trust account or special trust funds received or disbursed by a lawyer as guardian, personal representative, receiver, or in a similar capacity such as trustee under a specific trust document. A Respondent found guilty of such theft shall have the opportunity to offer competent, substantial evidence to rebut the presumption that disbarment is appropriate. The Florida Standards suggest that the following general factors should be
considered in imposing sanctions:
(a) the duty violated;
(b) the lawyer’s mental state;
(c) the potential or actual injury caused by the lawyer’s misconduct; and
46
(d) the existence of aggravating or mitigating factors.
I find that Respondent violated the following duties (with resultant
sanctions) which are set forth in the Florida Standards:
4.1 FAILURE TO PRESERVE THE CLIENT’S PROPERTY
4.11 Disbarment is appropriate when a lawyer intentionally or knowingly
converts client property regardless of injury or potential injury.
4.4 LACK OF DILIGENCE
4.41 Disbarment is appropriate when:
(b) a lawyer knowingly fails to perform services for a client and
causes serious or potentially serious injury to a client.
4.6 LACK OF CANDOR
4.61 Disbarment is appropriate when a lawyer knowingly or intentionally
deceives a client with the intent to benefit the lawyer or another regardless of
injury or potential injury to the client.
5.1 FAILURE TO MAINTAIN PERSONAL INTEGRITY
5.11(f) Disbarment is appropriate when a lawyer engages in any other
intentional conduct involving dishonesty, fraud, deceit, or misrepresentation
that seriously adversely reflects on the lawyer’s fitness to practice law.
7.0 VIOLATIONS OF OTHER DUTIES OWED AS A PROFESSIONAL
47
7.1 Disbarment is appropriate when a lawyer intentionally engages in
conduct that is a violation of a duty owed as a professional with the intent to
obtain a benefit for the lawyer or another, and causes serious or potentially
serious injury to a client, the public, or the legal system.
In sum, with respect to the cases before me, the evidence established by
clear and convincing evidence conversion of client funds, trust accounting
violations, multiple instances of dishonesty, the charging of clearly excessive fees,
and failing to respond to the Bar’s investigative inquiries, among other violations.
Addressing Respondent’s mental state as suggested by the Florida
Standards, I have no direct evidence of impairment and in response to this
Referee’s specific inquiry at the case management conference, Respondent denied
that he was being treated for any illness that would affect his ability to represent
himself or that he was taking any medications in this regard. During the final
hearing, Respondent denied that he was taking any medications, denied that there
was any problem which would affect his ability to testify or go forward with the
proceedings, and in response to questioning from Bar counsel, Respondent denied
that he had ever been treated for mental illness. Witness Julie Gallagher did
express her belief that Respondent may suffer from some undisclosed problem, and
his conduct before me suggests, but does not establish, some incapacity. In this
regard, I took note of the fact that Respondent was significantly late for most of his
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appearances before me, he failed to file responses to the Bar’s discovery in SC08-
76, he failed to file answers in cases SC08-575 and SC08-804, and appeared to
have great difficulty focusing his testimony and presentations. His file in the
Sarantis case was in shambles. Indeed, according to Respondent, he believes there
are more documents but he can not seem to locate them. The few pleadings he
filed in these matters were woefully deficient and/or lacking in professionalism.
However, in the absence of any evidence put forth in mitigation, I must conclude
that Respondent was in control of his mental faculties when he committed the
misconduct. Furthermore, I am bound by the record before me, and I am aware of
case law which establishes that the claim of a mental health problem may help to
explain misconduct, but does not excuse the misconduct or prevent disbarment.
The Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007); The Florida Bar v.
Horowitz, 697 So.2d 78 (Fla. 1997).
As to injury, Dr. Sarantis paid Respondent $35,800 but Respondent
performed no services of any significant benefit. Based on the testimony, I must
also conclude that Respondent was entrusted with funds to pay Dr. Sarantis’
outstanding fine and costs to the Board of Medicine but failed to do so, thereby
prejudicing Dr. Sarantis and his case. With respect to SC08-575, various
individuals were unable to serve Respondent with civil process, resulting in
dismissal of their cases against him. As to SC08-804, Leonard J. Kaplan, after the
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loss of his daughter, paid Respondent $55,000 to file administrative complaints but
Respondent filed no such complaints. Respondent lied to Mr. Kaplan and Mr.
Kaplan’s North Carolina attorney that he was awaiting the response of the
Department of Health to the non-existent complaints.
V. CASE LAW I considered the following case law prior to recommending discipline:
“The overwhelming majority of cases involving the misuse of client funds
have resulted in disbarment regardless of the mitigation present.” The Florida Bar
v. Travis, 765 So.2d 689, 691 (Fla. 2000); The Florida Bar v. Shanzer, 572 So.2d
1382, 1383 (Fla. 1991) and cases cited therein. “Misuse of client funds is
unquestionably one of the most serious offenses a lawyer can commit.” The
Florida Bar v. Porter, 684 So.2d 810,813 (Fla. 1996).
In The Florida Bar v. Spear, 887 So.2d 1242 (Fla. 2004), the referee
recommended a 3 year suspension and the Supreme Court of Florida rejected the
recommendation and imposed disbarment. The Court recognized that the
“presumptive penalty for the misuse of client funds is disbarment.” The Florida
Bar v. Spear, 887 So.2d at 1247. The Court further recognized that “disbarment is
the appropriate sanction for misuse of client funds because it is unquestionably one
of the most serious offenses a lawyer can commit.” The Florida Bar v. Spear, 887
So.2d at 1247. The Court also noted that in cases wherein the Court had imposed a
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sanction other than disbarment, there were exceptional circumstances that
mitigated culpability and the attorney participated in the proceedings and offered
an explanation for the conduct. See also, The Florida Bar v. McIver, 606 So.2d
1159 (Fla. 1992) holding that disbarment was warranted for misuse of client funds.
Even if mitigation were present, the Court has found that mitigation may be
insufficient to overcome the presumption of disbarment. For example, in The
Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007), the referee recommended a
3 year suspension and found substantial mitigating factors, including that the
attorney suffered from mental depression. The Court acknowledged the referee’s
finding regarding the mental depression suffered by the Respondent but found the
mitigation insufficient to overcome the presumption of disbarment. Similarly, in
The Florida Bar v. Knowles, 500 So.2d 140 (Fla. 1986), the Court recognized that
alcoholism was the underlying cause of Respondent’s misconduct and noted that
Respondent had promptly made restitution to his clients but none-the-less found
that disbarment was the appropriate sanction. Also, in The Florida Bar v. Golub,
550 So.2d 455 (Fla. 1989), the Court rejected the referee’s recommendation of a 3
year suspension and held that unauthorized removal of substantial sums from an
estate warranted disbarment notwithstanding an alcoholism defense.
In The Florida Bar v. Tato, 435 So.2d 807 (Fla. 1983), a case which is
similar to the factual situations in the Sarantis and Kaplan matters, the Supreme
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Court held that performing little or no work after accepting a fee and thereafter
willfully ignoring the clients’ requests for an accounting or refund warranted
disbarment despite the fact that Respondent had not been the subject of a prior
disciplinary action.
The single most important concern in the attorney disciplinary process is
protection of the public:
Our single most important concern in the attorney discipline process “is the protection of the public from incompetent, unethical, or irresponsible representation.” This protection is paramount considering that the very nature of the lawyer-client relationship requires that clients “place their lives, their money, and their causes in the hands of their lawyers with a degree of blind trust that is paralleled in very few other economic relationships.”
The Florida Bar v. Spears, 786 So.2d 516, 520 -521 (Fla. 2001) [citations omitted].
In determining a proper sanction, the Supreme Court of Florida will take into
account the three purposes of lawyer discipline: (1) the judgment must be fair to
society, both in terms of protecting the public from unethical conduct and at the
same time not denying the public the services of a qualified lawyer as a result of
undue harshness in imposing penalty; (2) the judgment must be fair to the attorney,
being sufficient to punish a breach of ethics and at the same time encourage
reformation and rehabilitation; and (3) the judgment must be severe enough to
deter others who might be prone or tempted to become involved in like violations.
The Florida Bar v. Gross, 896 So.2d 742 (Fla. 2005).
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VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE
APPLIED: I recommend that Respondent be found guilty of misconduct justifying bar
discipline measures and that he be disciplined as follows:
A. Disbarment without leave to reapply for a period of 5 years;
B. As an express condition of reinstatement, Respondent shall, within 6
months of an Order from the Supreme Court of Florida approving this Report, pay
restitution to the following individuals and provide proof thereof to The Florida
Bar: Kosmas M. Sarantis, M.D., 7443 Royal Oak Drive, Spring Hill, Florida
34607 in the amount of $35,800.00; and Leonard J. Kaplan, 7 Monmouth Court,
Greensboro, NC 27410 in the amount of $55,000.00. Interest at the statutory rate
shall accrue.
C. As an express condition of reinstatement, Respondent shall be
evaluated by Florida Lawyers Assistance, Inc. (“FLA”). Should FLA determine
that the execution of a contract is deemed appropriate, Respondent shall execute a
contract and comply with all conditions FLA deems appropriate. Respondent shall
be responsible for any fees incurred for monitoring such contract.
D. Respondent shall pay The Florida Bar’s costs. Interest at the statutory
rate shall accrue.
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VII. PERSONAL HISTORY, PAST DISCIPLINARY RECORD AND AGGRAVATING AND MITIGATING FACTORS:
Prior to recommending discipline pursuant Rule 3-7.6(k)(1), I considered
the following:
A. Personal History of Respondent:
Date of birth: September 26, 1956
Date admitted to The Florida Bar: November 4, 1983.
B. Aggravating Factors: 9.22
9.22(b) dishonest or selfish motive. As is apparent from the
factual findings, Respondent obtained substantial sums of money for
representation, provided no meaningful representation, made misrepresentations,
and otherwise acted to maximize his ability to obtain funds for his own purposes
rather than to act in the best interest of any client.
9.22(c) a pattern of misconduct. Both the Sarantis and Kaplan
cases contain a similar pattern of misconduct. Additionally, Respondent failed on
more than one occasion and in more than one matter, to respond to Bar inquiries.
9.22(d) multiple offenses. Respondent has been found guilty of
approximately 20 different violations arising from 3 separate matters.
9.22(i) substantial experience in the practice of law. As stated
above, Respondent was admitted on November 4, 1983.
C. Mitigating Factors: 9.32
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9.32(a) absence of a prior disciplinary record.
VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS
SHOULD BE TAXED: I find the following costs were reasonably incurred by The Florida Bar and
that same should be assessed against the Respondent, as follows:
A. Grievance Committee Level Costs: 1. Court Reporter Costs $ 565.00 2. Bar Counsel Travel Costs $ 00.00
3. Copy costs $ 36.00 4. Mailing costs $ 14.89
B. Referee Level Costs:
1. Court Reporter (prior to final hearing) $ 370.00 2. Court Reporter (final hearing) $ 1,240.00 3. Bar Counsel Travel - parking $ 229.00 4. Bar Counsel Travel – mileage $ 61.68
5. Copy costs $ 00.00 6. Mailing costs $ 16.47
7. Venus Zilieris (mileage & parking) $ 94.52 C. Administrative Costs $ 1,250.00 D. Miscellaneous Costs:
1. Investigator Costs $ 257.61 2. Expert Attorney (Allen R. Grossman) $ 1,800.00 3. Staff Auditor $ 1,485.19 4. Telephone Charges $ 00.00 TOTAL COSTS TO DATE $ 7,420.36
Other costs have or may be incurred.
It is recommended such costs be charged to Respondent and, that interest at the
statutory rate shall accrue. Should Respondent fail to satisfy his cost obligation
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within 30 days of the entry of the final order in this case, Respondent shall be
deemed delinquent and shall be ineligible to practice law, pursuant to R.
Regulating Fla. Bar 1-3.6, (unless otherwise deferred by the Board of Governors of
The Florida Bar).
Dated this ________ day of October, 2008, in Fort Lauderdale, Florida.
______________________________ Eileen M. O’Connor, Referee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32301; by e-mail to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, [email protected], and that copies were mailed to RONNA FRIEDMAN YOUNG, Bar counsel, The Florida Bar, 5900 North Andrews Avenue, Suite 900, Fort Lauderdale, Florida 33309, JOSEPH HARRISON, P.O. Box 810637, Boca Raton, Florida 33481-0637, and STAFF COUNSEL, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300 this ______day of October, 2008. ______________________________ Eileen M. O’Connor, Referee
