The Florida Bar v. Ross

• Citation: 732 So.2d 1037
• Decision Date: 24 December 1998
• Docket Number: No. 89,012.,89,012.
• Parties: THE FLORIDA BAR, Complainant, v. Alec Joseph ROSS, Respondent.
• Court: United States State Supreme Court of Florida

732 So.2d 1037

THE FLORIDA BAR, Complainant, v. Alec Joseph ROSS, Respondent.

No. 89,012.

Supreme Court of Florida.

December 24, 1998.

Rehearing Denied May 6, 1999.

John F. Harkness, Jr., Executive Director and John Anthony Boggs, Staff Counsel, Tallahassee, and Cynthia Lindbloom, Bar Counsel, Miami, for Complainant.

Richard B. Marx, Miami, for Respondent.

PER CURIAM.

We have for review the referee's report and recommendations regarding alleged ethical violations by attorney Alec Joseph Ross. We have jurisdiction. Art. V, § 15, Fla. Const. For the reasons expressed in this opinion, we approve the referee's factual findings and recommendation of guilt, as well as the recommended discipline.

I. THE REFEREE'S FINDINGS AND RECOMMENDATIONS

The referee made the following factual findings: Ross represents himself as a real estate investor, in particular a foreclosure buyer.¹ In August 1994, County Collection Services, Inc., obtained a summary judgment of foreclosure against property owned by Roger Quisenberry in Palm Beach County. Ralph Lazar purchased the property at foreclosure sale. Ross was a tenant of Quisenberry's on an unrelated property. The tenancy resulted in a dispute between Ross and Quisenberry.

Quisenberry retained attorney Kim St. James to represent him in setting aside the foreclosure sale. St. James filed a motion to set aside the sale which included Quisenberry's affidavit stating that he was out of town during the time the foreclosure sale was finalized and had not received notice. Ross was aware of the affidavit and believed that information contained in it was false.

In November 1994, Ross contacted Lazar and told him he had information that would be helpful in refuting Quisenberry's motion and affidavit. Ross requested a one-half interest in the property Lazar had purchased at the foreclosure sale in exchange for the information and documentation he could provide. Subsequently, Ross contacted Lazar's attorney, Steven Newburgh, and repeated his request for a one-half interest in the property in exchange for his information. Newburgh told Ross that the only consideration he would be offered was a check for $7.40 for a witness fee. When Newburgh told Ross that he would be taking Ross's deposition, Ross did not indicate that he would be out of town or on vacation and unavailable for deposition or for the hearing on the motion to set aside the sale.

A witness subpoena was issued scheduling Ross's deposition for December 8, 1994. In late November 1994, upon receiving the notice of Ross's deposition, St. James contacted Ross to determine what he knew about the matter and informed Ross that his deposition was scheduled for December 8. Ross told St. James that he had not yet been served with a subpoena and that, in exchange for a fee,² he would make himself unavailable for deposition or for service of the subpoena for deposition or both and would be unavailable for trial.

Ross admitted that he told St. James he was going on vacation and if her client paid him money he could leave town sooner and stay away longer. Ross testified that he sought the money to settle a claim against Quisenberry on the unrelated property. St. James testified that she believed Ross was soliciting a bribe.

Ross contacted St. James again seeking an answer from Quisenberry regarding the payment of money in exchange for his unavailability. St. James rejected Ross's offer. Ross sent several faxes to Newburgh renewing his requests for an interest in the subject property in exchange for his information. Newburgh did not respond.

Ross made it appear that he was unavailable for deposition and the hearing. When the process server attempted service on Ross on November 28, 1994, he found a note affixed to Ross's door indicating that Ross was on vacation until December 20. Ross knew that the hearing on Quisenberry's motion to set aside the foreclosure sale was scheduled for December 19. Newburgh filed a motion for continuance based upon Ross's apparent disappearance. Ross did not freely assist in the action until after a complaint was filed with the Bar.

The referee recommended finding Ross guilty of violating rule 4-8.4(c), Rules Regulating The Florida Bar (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee further relied on Standards 5.11(b) and (f), Florida Standards for Imposing Lawyer Sanctions, in recommending that Ross be disbarred.

II. CONTINUING DISCIPLINARY JURISDICTION

Before reviewing the referee's findings and recommendations in the present case, we take this opportunity to address and clarify the bases of our continuing disciplinary jurisdiction over attorneys who are already under suspension (such as Ross in the present case, see supra note 1); attorneys who have been disbarred; and attorneys who have resigned in the face of disciplinary charges.

A. BAR MEMBERSHIP

Rule 3-5.1(e), Rules Regulating The Florida Bar, specifically provides that "[d]uring ... suspension the respondent shall continue to be a member of The Florida Bar but without the privilege of practicing." (Emphasis added.) Citing rule 3-5.1(e), this Court in Florida Bar v. Solomon, 589 So.2d 286 (Fla.1991), disbarred an attorney for acts of misconduct committed during the attorney's suspension, holding that "[a]lthough under suspension, [the subject attorney] is still a member of The Florida Bar. As such, he is subject to the standards of ethical and professional conduct prescribed by this Court.'" Id. at 287 (citation omitted).

Thus, despite the fact that an attorney is suspended, he or she remains a member of The Florida Bar and, as such, is subject to the continuing disciplinary jurisdiction of this Court to the same extent as any other member of The Florida Bar. See generally, art. V, § 15, Fla. Const. ("The supreme court shall have exclusive jurisdiction to regulate ... the discipline of the persons admitted [to the practice of law].").

The same is not true of attorneys who have been disbarred or who have resigned in the face of disciplinary charges, as such attorneys are no longer "members" of The Florida Bar. See R. Regulating Fla. Bar 3-5.1(f) ("A judgment of disbarment terminates the respondent's status as a member of the bar."); R. Regulating Fla. Bar 3-5.1(j) ("If accepted by the Supreme Court of Florida, a disciplinary resignation terminates the respondent's status as a member of the bar.").

B. UNLICENSED PRACTICE OF LAW

Chapter 10 of the Rules Regulating The Florida Bar, which governs the investigation and prosecution of the unlicensed practice of law, specifically provides that "[f]or purposes of this chapter, a nonlawyer or nonattorney is an individual who is not a member of The Florida Bar. This includes, but is not limited to ... disbarred lawyers, and suspended lawyers during the period of suspension."³ R. Regulating Fla. Bar 10-2.1(b) (emphasis added). Although not explicitly named, this definition of "nonlawyer or nonattorney" implicitly includes attorneys who have resigned in the face of disciplinary charges. Such resigned attorneys also are not members of The Florida Bar.

Accordingly, suspended attorneys, disbarred attorneys, and attorneys who have resigned in the face of disciplinary charges are not members of The Florida Bar under chapter 10, but are instead "nonlawyers or nonattorneys" subject to the jurisdiction of this Court if they engage in the unlicensed practice of law.⁴ While not necessarily referring specifically to chapter 10, this Court has consistently imposed additional discipline upon already-disciplined attorneys for engaging in the unauthorized practice of law during their existing discipline. See, e.g., Florida Bar v. Neckman, 616 So.2d 31, 32 (Fla.1993)

(publicly reprimanding attorney who had resigned in the face of disciplinary charges, holding that "the unauthorized practice of law by one who has resigned the license to practice rather than face disciplinary proceedings is the equivalent of violating a prior disciplinary order of this Court," and that "it is proper for discipline to be imposed upon an attorney who has temporarily resigned the license to practice law."); Florida Bar v. Golden, 563 So.2d 81, 81-82 (Fla.1990) (imposing additional suspension upon attorney who violated the terms of his existing suspension, holding that "counselling and attempting to assist his client in requesting two continuances [during the subject attorney's period of suspension] constituted the unauthorized practice of law"); Florida Bar v. Riccardi, 304 So.2d 444, 445 (Fla. 1974) (finding in contempt and issuing permanent injunction against disbarred attorney due to his unauthorized practice of law after disbarment). See also Florida Bar v. Greene, 589 So.2d 281, 282-83 (Fla.1991) (disbarring attorney for continuing to practice law while suspended, holding that "[w]e have found disbarment appropriate in other cases in which attorneys have engaged in the practice of law while suspended").

C. CONTEMPT

Orders from this Court suspending an attorney, disbarring an attorney, or accepting an attorney's disciplinary resignation typically contain language to the effect that the subject attorney "shall accept no new business from the date this order is filed." Such orders may also impose additional restrictions or conditions related to the discipline at issue. If an attorney subject to such a disciplinary order violates same, he or she stands in contempt of this Court's order. See generally Black's Law Dictionary 319 (6th ed. 1990) (defining "contempt of court" as being committed by "one who, being under the court's authority as a party to a proceeding therein, willfully disobeys its lawful orders"). In addition to this Court's inherent contempt powers,⁵ rule 3-7.11(f), Rules Regulating The Florida Bar, specifically provides in pertinent part that "a respondent in a disciplinary proceeding may be cited for contempt by petition for an order to show cause...