IN THE SUPREME COURT OF FLORIDA C THE FLORIDA BAR, Supreme Court Case O 22 P 27 No. SC11-1678 u Complainant, The Florida Bar File By v. No. 2010-00,626 (14) JEAN MARIE DOWNING, Respondent. THE FLORIDA BAR'S INITIAL BRIEF Olivia Paiva Klein, Bar Counsel The Florida Bar Tallahassee Branch Office 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5845 Florida Bar No. 970247 [email protected]Kenneth Lawrence Marvin, Staff Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Florida Bar No. 200999 [email protected]John F. Harkness, Jr., Executive Director The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Florida Bar No. 123390 [email protected]
Transcript
IN THE SUPREME COURT OF FLORIDA C
THE FLORIDA BAR, Supreme Court Case O 22 P 27No. SC11-1678 u
Complainant,The Florida Bar File By
v. No. 2010-00,626 (14)
JEAN MARIE DOWNING,
Respondent.
THE FLORIDA BAR'S INITIAL BRIEF
Olivia Paiva Klein, Bar CounselThe Florida BarTallahassee Branch Office651 East Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5845Florida Bar No. 970247
[email protected] Lawrence Marvin, Staff CounselThe Florida Bar651 E. Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. 200999
[email protected] F. Harkness, Jr., Executive DirectorThe Florida Bar651 E. Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. [email protected]
TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................................e...................iTABLE OF CITATIONS.......................................................................................... iiPRELIMINARY STATEMENT................................................................................1SCTASE 9 e s e e a e •e9. e e e e a e . O e e e e e e e e e e e e e e a e a e e e e . e e . e e s e a . e e e e •.e e . e a e a e . a e e . e e e e a e e e •.e o e
SOTF FACST e e • • •. O e e e e a e e • • O . O e a e • • •. O e a e . e e G •. . O e e e . e . • S S e a e e a e e e e e . e . e e e e e e • a e e a e e . e o e e e .
• O e • • O . O • e a e e • • • •. e . O e • a e e e a e e e a e a e a . e e a e e e e e e e . e a . • e s . e e a e e a e e . e a e e e e e e . e e a . g g e e e e e e e . e e e e e e a e • e 9 • . • • G e 9 e e
CCSILU N O O • 4 • •. . 9 0 • e e e e e e . • . •. O e e e e e . e 9 . . • a . e s . e . • O e •. e e e e • • • e e e e e a e • . • a . e e . e e e e . e a e e . a e e a e e e e e e e e e e a e o e . e a e e e a
C CAOFIF S CEe• • • • O . e 4 • . e . • S •. . O • O e . • . . . •. O e . e . . • • • . O e a e e G • . • O e 4 e e . e • . •. e e e g . e e e • e • • • • G • O e e . • O
CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN........31
1
TABLE OF CITATIONS
Page No.
Cases
In re matter ofHohn, 71 Ariz. 539, 832 P.2d 192 (Ariz. 1992).............................. 27The Florida Bar v. Berthiaume, 78 So.3d 503 (Fla. 2011)................................ 24, 25The Florida Bar v. Brake, 767 So.2d 1163, 1169 (Fla. 2000)................................. 23The Florida Bar v. Cocalis,959 So.2d 163 (Fla. 2007)............................................ 26The Florida Bar v. Committe, 916 So.2d 741 (Fla. 2005)....................................... 24The Florida Bar v. Head, 84 So.3d 292 (Fla. 2012)................................................ 24The Florida Bar v. Lord, 433 So.2d 983, 986 (Fla. 1983)....................................... 23The Florida Bar v. Miller, 863 So.2d 231, 234 (Fla. 2003).................................... 17The Florida Bar v. Pahules, 233 So.2d 130, 132 (Fla. 1970 ................................... 23The Florida Bar v. Richardson, 591 So.2d 908 (Fla. 1992).................................... 24The Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999 .................................. 17Thompson v. Supreme Court Committee on Professional Conduct, 9 Ark. 186, 252
2. At that initial consultation, Respondent checked the property records
in Bay County and began to draft a Notice ofLis Pendens. T-168, L-14-17.
3. Respondent advised her client that she needed to file a complaint first
and then a Notice ofLis Pendens. TFB Exhibit 26, p. 58, L-22-25; T-119, L-1-5.
4. Respondent failed to file the complaint because her client did not want
her to do so. See TFB Exhibit 26, p. 50, L-21-25, and p. 51, L-1-15.
5. Ms. Gaines was adamant that Respondent was not to file a complaint
against Gary Smith because she was afraid that her husband's probation would be
violated and he would be incarcerated again. See TFB Exhibit 25 at pp. 1-2; TFB
Exhibit 26, p. 50, L-21-25, p. 51, L-1-15, p. 57, L-4-25, and p. 58, L-1-7, L-22-25.
6. On August 4, 2005, Respondent signed a Notice ofLis Pendens on the
6
property belonging to Mr. Smith and JACAM Corporation, and recorded it on
August 5, 2005. TFB Exhibits 1, 24, 25, and 27.
7. The Notice ofLis Pendens erroneously stated that "[t]his shall serve as
notice that a lawsuit has been instituted against you." It also alleged that there was a
lawsuit in the case styled as Amazing Grace Investments and Properties, Inc. v.
JACAM Corporation and Gary Smith, although there was no such lawsuit filed at
the time, and no case number on the Notice. TFB Exhibits 1 and 24.
8. Respondent never filed a lawsuit either before or after the Notice of
Lis Pendens was recorded. See TFB Exhibit 25; TFB Exhibit 26, at p. 51, L-1-15;
and TFB Exhibit 27; T-122, L-1-16, L-18-25; T-123, L-1-4.
9. Via the Notice ofLis Pendens, Respondent knew, or should have
known, that the subject property would be unmarketable until the Notice ofLis
Pendens was discharged or dissolved. TFB Exhibit 9; T-40, L-23-25; T-41, L-1-2.
10. Respondent admitted in her response to The Florida Bar that she filed
the Notice ofLis Pendens "knowingly and purposefully" with no lawsuit attached,
because, although she counseled the client against this action, she did it because that
was what her client wanted her to do. TFB Exhibit 25.
11. Between August 15, 2005, and November 9, 2005, Ross McCloy,
counsel for Mr. Smith and JACAM Corporation, repeatedly contacted Respondent,
7
requesting that Respondent remove the lis pendens. TFB Exhibits 3, 5, and 7.
12. In his letter ofNovember 9, 2005, Mr. McCloy made a formal demand
on Respondent to cancel and withdraw the lis pendens, stating that there was no
underlying lawsuit and her action had put a cloud on the title ofhis client's
property. TFB Exhibit 7.
13. Respondent, however, refused to take any action to correct the
improper filing and recording of the Notice ofLis Pendens. TFB Exhibit 6.
14. Having received no response from Respondent to his November 9,
2005, letter, and with no complaint supporting the lis pendens having been filed, on
December 1, 2005, Mr. McCloy filed a complaint in Bay County Circuit Court,
seeking to discharge the lis pendens. TFB Exhibit 10.
15. A hearing was held on January 27, 2006, and an order was entered by
the court dissolving the Notice ofLis Pendens. TFB Exhibit 19. The dismissal was
based on the fact that the corporation, Amazing Grace Investments & Properties,
Inc., was no longer an active corporation that could proceed in litigation.
16. Respondent took no action before the January 27, 2006 hearing, to
correct the erroneous filing and recording of the lis pendens, despite several
opportunities to do so. TFB Exhibits 12, 14, and 16.
Respondent asserts that her filing of a lis pendens was not frivolous because
8
she intended to file an action suit if settlement discussions had been unsuccessful.
Additionally the Respondent notes that a Notice of Intent to File a claim for civil
theft was sent to Mr. Smith on or about the same date of the lis pendens filing.
(Respondent's Exhibit 1).
However that position does not justify the lis pendens as the law clearly
requires that a simultaneous lawsuit be filed. The failure to file a simultaneous
lawsuit forced Mr. Smith and JACAM to file action in order to request the court
that the lis pendens be dissolved.
17. Respondent failed to terminate her representation ofMs. Gaines when
Ms. Gaines insisted Respondent file the lis pendens without filing the required
complaint in violation of the Rules Regulating The Florida Bar. See R. Regulating
Fla. Bar Rule 4-1.16(a)(1). Following what her client wanted her to do was
improper because it violated the ethical rules and the prevailing law. See Fla. Stat.
§48.23(2005). When a client insists that a lawyer act contrary to those ethical rules
and Florida statutes, then the attorney must decline to represent the client. Of
course Respondent could have also simply explained to her client that the requested
course of action could not be followed and proceeded with representation in
accordance with proper procedure.
9
18. Respondent filed a nonmeritorious Notice ofLis Pendens, in violation
ofFlorida Statutes and the Rules Regulating The Florida Bar. The Notice ofLis
Pendens was an improper pleading recorded and filed for the purpose of gaining
leverage for Respondent's client, Ms. Gaines, in a property dispute with Mr. Smith.
See TFB Exhibit 6. The Notice ofLis Pendens that was recorded with the Clerk's
office alleged a lawsuit had been filed in the name of Amazing Grace Investments
against Gary Smith when no such lawsuit was ever filed before or after the Notice
was recorded. Despite having numerous opportunities to do so, Respondent refused
to withdraw the Notice ofLis Pendens. It was necessary for Mr. Smith to hire
counsel and file a Complaint to dissolve the lis pendens which was accomplished
via court order on January 27, 2006.
The Referee did not consider the Florida Standards for Imposing Lawyer
Sanctions, but did consider the following factors in making his recommendation of
diversion:
(1) During a significant portion of the negotiations between the
parties, Ms. Downing has been assigned to a substantial federal criminal case for
which she was entirely responsible for all motions and pretrial practice. During this
period Ms. Downing was working extremely long hours on the federal case that had
become her sole responsibility as designated and agreed between the partners.
10
(2) Respondent's partner Mr. Sheppard had substantial
responsibility for the subject lis pendens negotiations during that period. Mr.
Sheppard primarily maintained a criminal practice with little civil experience. Mr.
Sheppard's experience and legal thought process provided little insight or assistance
to the Respondent in examining the prudence ofher course of action. In fact when
questioned at the hearing Mr. Sheppard still maintained that he could not think of
another approach to serve his client's legal needs.
(3) From all accounts and evidence introduced at hearing,
Respondent maintains an excellent reputation for professionalism and competence.
It is the Referee's view that although clearly mistaken, the Respondent did not
consciously believe or realize that her actions were improper.
(4) This matter represents a single act with no evidence of
likelihood of repetition.
(5) During the hearing Respondent appeared to be candid and
straight forward with her testimony.
The Referee concluded the Respondent's misconduct was not more serious
than minor misconduct and recommended a diversion to a practice and
professionalism enhancement program pursuant to Rule 3-5.3(h)(2) without
specifying which program. ROR-8.
11
Pursuant to The Florida Bar's Statement of Costs, the Referee assessed costs
against Respondent in the exact amount of $6,958.78 requested by The Florida Bar,
but inadvertently referred to Respondent as "Petitioner" in that paragraph. ROR-8.
12
SUMMARY OF ARGUMENT
The sole issue on appeal by The Florida Bar is the diversion recommendation
of the Referee. The Florida Bar contends that a higher discipline of a 30-day
suspension is more appropriate based on the referee's findings of fact, the Florida
Standards for Imposing Lawyer Sanctions and the case law.
Respondent represented Grace Gaines in a property dispute with Gary Smith
and JACAM Corporation. Respondent drafted, signed, and recorded a misleading
Notice ofLis Pendens in the Bay County Clerk's Office on behalf of her client, Ms.
Gaines. The Florida Bar contends, and the referee found, that the Notice ofLis
Pendens was nonmeritorious because it violated the Rules Regulating The Florida
Bar and the Florida Statutes. ROR-6. Contrary to Florida law, Respondent did not
record the Notice ofLis Pendens after, or contemporaneously with, a lawsuit. See
§48.23, Fla. Stat.(2005). The case style on the Notice ofLis Pendens was improper
because no such lawsuit existed. Respondent never filed any lawsuit before or after
recording the Notice ofLis Pendens. There was no case number on the Notice of
Lis Pendens, and Respondent improperly alleged in the text that a lawsuit had been
filed against Mr. Smith and his corporation.
Despite numerous requests from Mr. Smith's counsel, Ross McCloy,
Respondent refused to withdraw the lis pendens. Her refusal to withdraw the
13
improper pleading caused serious harm to Mr. Smith. First, the Notice ofLis
Pendens put a cloud on the title of the property from August 5, 2005, when it was
recorded, through January 27, 2006, when the circuit court dismissed the lis
pendens. The referee also found that Respondent knew, or should have known, that
during this period of time, Mr. Smith's property was unmarketable until the lis
pendens was dissolved. ROR-3. Second, Respondent's misconduct required Mr.
Smith to hire counsel and file a complaint incurring attorney's fees and costs to
have the lis pendens removed. The referee found that Respondent's assertion that
she intended to file a civil theft claim did not justify the lis pendens because she
recorded it without filing any underlying lawsuit in violation ofFlorida law. ROR-
5.
Respondent also asserted that she filed the Notice ofLis Pendens without a
lawsuit because her client wanted her to do so. Rule 4-1.16(a) requires an attorney
to withdraw from a client's representation ifthe client insists that the attorney take
actions that are unethical or unlawful. By recording an improper Notice ofLis
Pendens, Respondent violated two ethical rules, Rule 4-1.16(a)(1), and Rule 4-3.1,
as well as Florida law, namely, §48.23, Fla. Stat.(2005). The referee found that
Respondent's failure to terminate her representation ofMs. Gaines, when her client
14
insisted Respondent file a lis pendens without filing the required complaint, was a
violation of the Rules Regulating the Florida Bar and cited to Rule 4-1.16(a)(1).
Based on the referee's findings of fact, although the referee did not consider
the Florida Standards for Imposing Lawyer Sanctions, it appears that Standard 6.22
(Abuse ofLegal Process) and Standard 7.2 (Other Duties Owed as a Professional)
would be applicable to the facts and circumstances of this case. Standard 6.22
states: "Suspension is appropriate when a lawyer knowingly violates a court order
or rule, and causes injury or potential injury to a client or party, or causes
interference with a legal proceeding." Standard 7.2 states: "Suspension is
appropriate when a lawyer knowingly engages in conduct that is a violation of a
duty owed as a professional and cause injury or potential injury to a client, the
public, or the legal system."
The referee found that Respondent admitted in her response to The Florida
Bar that she "knowingly and purposefully" filed the Notice ofLis Pendens with no
lawsuit attached. ROR-3. Respondent caused injury to a third party, and to the
legal system by recording an improper pleading with the Clerk's Office. The
referee also found that Respondent's actions were a violation ofFlorida law and the
Rules Regulating The Florida Bar.
15
For the foregoing reasons, The Florida Bar contends that a diversion
recommendation is insufficient under the facts and circumstances of this case
because Respondent's actions are not minor misconduct. Rather, under the fmdings
of fact in the referee's report and the Florida Standards, the Court should impose a
higher discipline of a 30-day suspension.
16
ARGUMENT
THE COURT SHOULD IMPOSE A THIRTY-DAY SUSPENSIONAS AN APPROPRIATE DISCIPLINE BASED ON THE FINDINGSOF FACT IN THE REFEREE'S REPORT.
The Florida Bar contends that the referee's recommendation of a Diversion to
a Practice and Professionalism Program is not reasonable based on the fmdings of
fact in the referee's report, the Florida Standards for Imposing Lawyer Sanctions
and the case law. The Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999. The
referee's report contains fmdings of fact that warrant a higher discipline of a thirty-
day suspension rather than the Diversion recommended by the referee. The Court's
scope of review as to the referee's recommended discipline is broader than that
afforded to the referee's fmdings of fact because it is the fmal arbiter of the
appropriate disciplinary sanction. The Florida Bar v. Miller, 863 So.2d 231, 234
(Fla. 2003). The Court will not second-guess a referee's recommended discipline as
long as there is a reasonable basis in the case law and it comports with the Florida
Standards for Imposing Lawyer Sanctions. In this case, however, the referee did
not consider the Florida Standards for Imposing Lawyer Sanctions or cite to any
basis in the case law. Even given the "factors" considered by the referee in his
report, the referee's findings of fact, the Florida Standards for Imposing Lawyer
17
Sanctions and the case law support The Florida Bar's contention that a higher
disciplinary sanction of a 30-day suspension is warranted in this case.
The referee's findings of fact reflect that Respondent violated two ethical
Rules, namely, Rule 4-1.16(a)(1) and Rule 4-3.1, as well as §48.23, Fla.
Stat.(2005). The referee found that Respondent prepared, signed and recorded an
improper Notice ofLis Pendens in the Bay County Clerk's Office on August 5,
2005. ROR-2-3. The Notice ofLis Pendens was misleading and put a cloud on the
title ofMr. Smith's property. It erroneously stated that a lawsuit styled as Amazing
Grace Investments and Properties, Inc. v. JACAM Corporation and Gary Smith had
been instituted against the defendants, but there was no case number on the Notice.
ROR-3. Despite the language asserting that a lawsuit had been filed against Mr.
Smith, the referee found that no lawsuit had ever been filed by Respondent either
before or after the Notice ofLis Pendens was recorded. ROR-3. The referee found
that "Respondent admitted in her response to The Florida Bar that she filed the
Notice of Lis Pendens 'knowingly and purposefully' with no lawsuit attached,
because although she counseled her client against this action, she did it because that
was what her client wanted her to do." ROR-3. Rule 4-1.16(a)(1), however,
requires an attorney to withdraw from representation of a client if the client insists
on the lawyer engaging in unethical or unlawful conduct.
18
Respondent's actions were not an inadvertent mistake. The referee found
that between August 15, 2005, and November 9, 2005, opposing counsel, Ross
McCloy, repeatedly contacted Respondent requesting that she remove the lis
pendens, but she refused to withdraw the improper Notice ofLis Pendens. ROR-4.
The Referee found that in a letter dated November 9, 2005, Mr. McCloy made a
formal demand on Respondent to cancel and withdraw the lis pendens because there
was no underlying lawsuit filed and her action had put a cloud on the title ofhis
client's property. ROR-4. Again, however, Respondent refused to take any action
to remove the lis pendens. ROR-4. Further, the record demonstrates that even after
filing the complaint to dissolve the lis pendens, Mr. McCloy again requested
Respondent to remove the lis pendens which she failed to do. TFB Exhibits 12 and
14.
Respondent's actions were prejudicial to Mr. Smith and caused him
substantial harm. The referee found that Respondent injured Mr. Smith by making
his real property unmarketable until the lis pendens was removed. ROR-3. She
also damaged Mr. Smith financially by requiring him to hire counsel to dissolve the
lis pendens, and to undergo the costs of filing suit to have the lis pendens removed
by the court. ROR-4-6. The referee found that Respondent's intent to file an action
19
for civil theft "did not justify the lis pendens as the law clearly requires that a
simultaneous lawsuit be filed." ROR-5. See also, §48.23, Fla. Stat.(2005).
The referee found that Respondent's actions violated the Rules Regulating
The Florida Bar and the prevailing law. ROR-5. The referee specifically cited to
Rule 4-1.16(a)(1) when he found that "Respondent failed to terminate her
representation of Ms. Gaines when Ms. Gaines insisted Respondent file the lis
pendens without filing the required complaint in violation of the Rules Regulating
The Florida Bar." ROR-5. The referee also cited to §48.23, Fla. Stat.(2005) when
he found that "what her client wanted her to do was improper because it violated
the ethical rules and the prevailing law." ROR-5.
Further, although he did not cite specifically to Rule 4-3.1, the referee found
that "Respondent filed a nonmeritorious Notice ofLis Pendens in violation of
Florida Statutes and the Rules Regulating the Florida Bar." ROR-6. More
importantly, he not only found that the Notice ofLis Pendens was an "improper
pleading" but also found that Respondent recorded and filed it "for the purpose of
gaining leverage for Respondent's client, Ms. Gaines, in a property dispute with
Mr. Smith." ROR-6. Based on the above findings of fact by the referee in his
report, The Florida Bar contends that Respondent's actions are not minor
misconduct and warrant a higher disciplinary sanction.
20
Under Rule 3-5.3(b), the types of cases eligible for Diversion to a practice
and professionalism program are those that would be disposed ofby a finding of
minor misconduct or no probable cause with letter of advice. Diversion is a non-
disciplinary sanction. In this case, the referee relied on Rule 3-5.3(h)(2) to
recommend a Diversion to a professional enhancement program. Rule 3-5.3(h)(2)
states: "A referee may recommend diversion of a disciplinary action to a practice
and professionalism enhanced program if, after submission of the evidence, but
before a finding ofguilt, the referee determines that, ifproven, the conduct alleged
to have been committed by the respondent is not more serious than minor
misconduct." Here, however, The Florida Bar must have proven its case because,
in the referee's findings of fact, he stated that Respondent was in violation of the
Rules Regulating The Florida Bar and §48.23, Fla. Stat.(2005). Further, the referee
specifically cited to Rule 4-1.1(a)(1) and §48.23, Fla. Stat.(2005) in his factual
findings.
In this case, the Referee's report does not cite to any Florida Standards for
Imposing Lawyer Sanctions. Based on the referee's findings of fact, however, The
Florida Bar submits that The Florida Standards for Imposing Lawyer Sanctions that
most nearly apply in this case are Standard 6.22 (Abuse ofLegal Process), and
Standard 7.2 (Duties Owed as a Professional) under the facts and circumstances of
21
this case. Standard 6.22 states: "Suspension is appropriate when a lawyer
knowingly violates a court order or rule, and causes injury or potential injury to a
client or party, or causes interference with a legal proceeding." Standard 7.2 states:
"Suspension is appropriate when a lawyer knowingly engages in conduct that is a
violation of a duty owed as a professional and cause injury or potential injury to a
client, the public, or the legal system."
The referee found that Respondent admitted in her response to The Florida
Bar that she "knowingly and purposefully" filed the Notice ofLis Pendens with no
lawsuit attached. ROR-3. Respondent caused injury to a third party, and to the
legal system by recording an improper pleading with the Clerk's Office. The
referee also found that Respondent's actions were a violation ofFlorida law and the
Rules Regulating The Florida Bar. Therefore, the Florida Standards support the
Florida Bar's contention that Respondent's actions are not minor misconduct and a
30-day suspension is a more appropriate discipline.
It is a well established maxim that a disciplinary sanction must serve three
purposes:
First, the judgment must be fair to society, both in termsofprotecting the public from unethical conduct and at thesame time not denying the public the services of aqualified lawyer as a result of undue harshness inimposing the penalty. Second, the judgment must be fair
22
to the respondent, being sufficient to punish a breach ofethics and at the same time encourage reformation andrehabilitation. Third, the judgment must be severe enoughto deter others who might be prone or tempted to becomeinvolved in like violations. The Florida Bar v. Brake, 767So.2d 1163, 1169 (Fla. 2000). See also, The Florida Barv. Lord, 433 So.2d 983, 986 (Fla. 1983); The Florida Barv. Pahules, 233 So.2d 130, 132 (Fla. 1970.
The referee's recommendation of a Diversion is not fair to society, is not
sufficient to punish the breach of ethics, and, since it is a nondisciplinary sanction,
it would not serve to deter others from being involved in similar misconduct. On
the other hand, a thirty-day suspension does meet the threefold purposes of a
disciplinary sanction. First, it would protect the public and is not unduly harsh
under the findings of fact and circumstances of this case. A thirty-day
nonrehabilitative suspension would allow Respondent to be automatically reinstated
to the practice of law. Second, it is fair to the Respondent because it punishes a
serious breach of ethics while encouraging rehabilitation. Respondent could be
referred to professional programs ofEthics School and Professionalism Workshop
by the Court. Lastly, a thirty-day suspension is severe enough to deter others from
a similar violation of the ethical rules. Respondent "knowingly and purposefully"
signed and recorded a frivolous and nonmeritorious pleading with the Bay County
Clerk's Office in order to gain leverage for her client in a real estate dispute. When
23
advised by opposing counsel that she needed to file a lawsuit with the lis pendens,
she did not comply with the Florida statute and refused to withdraw the Notice of
Lis Pendens. This type of misconduct warrants a higher discipline to deter similar
misconduct by others because it is not minor misconduct.
This Court has sanctioned attorneys who engage in filing nonmeritorious and
frivolous pleadings. See The Florida Bar v. Committe, 916 So.2d 741 (Fla. 2005)
(The Court imposed a 90-day suspension for abuse of legal process and frivolous
federal case filings). See also, The Florida Bar v. Richardson, 591 So.2d 908 (Fla.
1992) (The Court imposed a 60-day suspension for filing a frivolous lawsuit). The
Court has also disciplined attorneys who have improperly filed pleadings with a
Clerk's Office, a court, or a third party. In The Florida Bar v. Head, 84 So.3d 292
(Fla. 2012), the attorney committed 3 acts of dishonesty-filing a false affidavit with
the circuit court, testifying untruthfully before the Referee, and posting a fraudulent
letter of eviction with a false case number on leased premises. The Court rejected
the Referee's recommendation of admonishment with probation and imposed a 91-
day suspension.
In The Florida Bar v. Berthiaume, 78 So.3d 503 (Fla. 2011), rehearing
denied January 10, 2012, an attorney filed and served on her client's bank a
purposely misleading subpoena duces tecum to obtain bank records. The subpoena
24
was not authorized because there was no pending lawsuit. The attorney sent the
improper subpoena knowingly and deliberately to the bank for the improper
purpose of obtaining her client's bank information for her own use. The Court
stated that the "referee accurately noted that all members of the legal profession
must conduct themselves responsibly and professionally to preserve the integrity of
our system." Id. at 505. The Court agreed with the referee's conclusion that "it is
unacceptable for a member of The Florida Bar to knowingly and deliberately utilize
a fraudulent subpoena to threaten a third party with incarceration or mislead them to
produce documents." I_d. at 505-506. The Court imposed a 91-day suspension as
an appropriate sanction.
Similarly, in this case, the referee found that Respondent admitted that she
"knowingly and purposefully" filed a Notice ofLis Pendens with the Bay County
Clerk's Office. ROR-3. The referee also found that the Notice ofLis Pendens was
improper, contrary to Florida law, and was filed for the purpose of gaining leverage
for her client in the legal dispute with Mr. Smith. As in Berthiaume, Respondent
filed an improper pleading for an improper purpose. Therefore, Respondent's
actions merit a higher sanction of a 30-day suspension.
The case law supports The Florida Bar's position that a higher sanction than
diversion should be imposed under the facts and circumstances of this case. In The
25
Florida Bar v. Cocalis,959 So.2d 163 (Fla. 2007), the attorney was charged with
calling the adverse party's doctor and mishandling another doctor's subpoenaed
records in a personal injury suit. The referee found the attomey's conduct
unprofessional, inappropriate and sharp practice but found that it did not violate 5
of the 6 rule violations which were charged by The Florida Bar. The Referee
conducted a second hearing to determine if attorney's conduct violated Rule 3-4.3
and, if so, what discipline to recommend. The second report of referee did not fmd
attorney guilty ofRule 3-4.3 violation but instead recommended diversion to a
practice and professionalism program. The referee considered the attorney's
unblemished 20-year career practicing law, the attorney was otherwise a good
lawyer and had learned from his mistakes, and the Fourth DCA's opinion in which
the court condemned attorney's lack ofprofessionalism in handling his client's case
acted as an effective public reprimand. Based on the facts found by the referee,
however, the Court found that diversion was not appropriate and imposed a public
reprimand for violation ofRule 3-4.3, and required the attorney to attend Ethics
School.
In out-of-state cases that considered the filing of a frivolous lis pendens, the
courts imposed a higher discipline of a public reprimand rather than diversion. In
Thompson v. Supreme Court Committee on Professional Conduct, 9 Ark. 186, 252
26
S.W.3d 125 (Ark. 2007), the Arkansas Supreme Court held that the attorney filed a
frivolous action when he filed a lis pendens notice in a money damages suit when it
had no connection to client's lawsuit against the property owner, and even after
being noticed that it was improper, refused to release one of the properties. The
Arkansas Supreme Court considered the attorney's prior disciplinary record, and
imposed a public reprimand. In another case, In re matter ofHohn, 71 Ariz. 539,
832 P.2d 192 (Ariz. 1992), the attorney filed a notice of lis pendens on property not
relating to lawsuit, and sent a claim letter to the title company to freeze a mobile
park home manager's assets. The Arizona Supreme Court held the attorney's
actions were an attempt to circumvent the constitutional and statutory requirements
for provisional remedies. The Arizona Court imposed a public reprimand and
required 20 hours of CLE in creditors' rights and legal ethics.
In this case, the referee inadvertently stated in his report that "Petitioner"
rather than Respondent be assessed taxable costs. ROR-8. The taxable costs were
awarded by the referee based on The Florida Bar's Statement of Costs and in the
exact amount of$6,958.78. The Court should award taxable costs to The Florida
Bar as recommended by the referee, or. in the alternative, remand this issue back to
the referee for clarification.
27
Therefore, the referee's findings of fact, The Florida Standards, and the case
law all support The Florida Bar's contention that Respondent's actions are not
minor misconduct, the referee's diversion recommendation is not reasonable under
the facts and circumstances of this case, and the Court should impose a 30-day
suspension on Respondent as a more appropriate disciplinary sanction. In addition,
the Court should require Respondent to attend Ethics School and Professionalism
Workshop as appropriate practice and professionalism enhancement programs.
28
CONCLUSION
WHEREFORE, for the foregoing reasons, The Florida Bar requests that the
Court reject the referee's recommendation of diversion, impose a 30-day suspension
on Respondent, require Respondent to attend Ethics School and Professionalism
Workshop within one year after the issuance of the Court's Final Order in this case,
and adopt the remainder of the referee's report including the assessment of taxable
costs on Respondent.
29
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing has been emailed to Respondent's
Counsel, Rhonda S. Clyatt, at her email address of [email protected] on this
22"4 day of January, 2013.
Olivia Paiva Klein, Bar CounselThe Florida BarTallahassee Branch Office651 East Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5845Florida Bar No. [email protected]
30
CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN
Undersigned counsel does hereby certify that this Brief is submitted in 14
point proportionately spaced Times New Roman font, and that this brief has been
filed by e-mail in accord with the Court's order of October 1, 2004. Undersigned
counsel does hereby further certify that the electronically filed version of this brief
has been scanned and found to be free of viruses, by Norton AntiVirus for
