The Florida Bar v. De La Torre, SC07-1633.

• Decision Date: 16 October 2008
• Docket Number: No. SC07-1633.,SC07-1633.
• Citation: 994 So.2d 1032
• Parties: THE FLORIDA BAR, Complainant, v. Mario A. Ruiz DE LA TORRE a/k/a Mario Costa, Respondent.
• Court: Florida Supreme Court

994 So.2d 1032

THE FLORIDA BAR, Complainant, v. Mario A. Ruiz DE LA TORRE a/k/a Mario Costa, Respondent.

No. SC07-1633.

Supreme Court of Florida.

October 16, 2008.

John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Barnaby Lee Min, Bar Counsel, The Florida Bar, Miami, FL, for Complainant.

Kevin P. Tynan of Richardson and Tynan, P.L.C., Tamarac, FL, for Respondent.

PER CURIAM.

We have for review a referee's report recommending that Mario A. Ruiz De la Torre be found guilty of professional misconduct and suspended from the practice of law for ninety days. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings, except for one aggravating factor, and his recommendations as to guilt. Further, we disapprove the recommended discipline of a ninety-day suspension. Instead, we impose an eighteen-month suspension, effective, nunc pro tunc, October 4, 2007, followed by three years of probation.

BACKGROUND

In September 2007, The Florida Bar filed a notice of determination of guilt with this Court after being informed that in March 2000, De la Torre had entered nolo contendere pleas in the circuit court for five criminal charges, including two felonies. Upon the Bar's filing of the notice of determination of guilt, De la Torre was suspended, effective October 4, 2007, pursuant to Rule Regulating the Florida Bar 3-7.2 (Procedures Upon Criminal or Professional Misconduct; Discipline Upon Determination or Judgment of Guilt of Criminal Misconduct) (hereinafter, "felony suspension rule"). A referee was subsequently appointed to preside over the disciplinary case, pursuant to Bar rule 3-7.6. After holding a hearing, the referee filed a report with this Court in which he made the following findings of fact.

In March 2000, the Circuit Court for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida withheld adjudication for De la Torre (in State v. Mario Costa, Case No. F99-38473) on a total of five criminal charges (the two felonies— possession of cocaine and battery on a law enforcement officer, and three misdemeanors — resisting an officer without violence, unlawful possession of cannabis, and possession of drug paraphernalia) and imposed eighteen months probation. De la Torre completed all of the probation conditions early and the circuit court terminated his probation after ten months. Most significantly, even though he pled to the offenses in March 2000, De la Torre failed to notify the Bar about the determinations of guilt,¹ as required by Bar rule 3-7.2(c), until August 2007.

The referee recommends that De la Torre be found guilty of violating Rules Regulating the Florida Bar 4-8.4(a) ("A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.") and 4-8.4(b) ("A lawyer shall not commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.").

The referee found six aggravating factors: (1) dishonest or selfish motive; (2) pattern of misconduct; (3) bad faith obstruction of the disciplinary proceeding; (4) submission of false evidence, false statements, or other deception during the disciplinary process; (5) refusal to acknowledge the wrongful nature of conduct; and (6) substantial experience as a practicing lawyer.² The referee found five mitigating factors: (1) no prior Bar disciplinary record; (2) personal or emotional problems; (3) character or reputation; (4) interim rehabilitation; and (5) imposition of other penalties or sanctions (during the 2000 criminal proceedings).

Based on his findings, and Florida Standard for Imposing Lawyer Sanctions 5.12,³ the referee recommends that De la Torre be suspended effective, nunc pro tunc, October 4, 2007, for ninety days followed by probation for three years. The referee also recommends that De la Torre be evaluated, within thirty days, by Florida Lawyers Assistance, Inc. (FLA, Inc.). If the evaluation by FLA, Inc. indicates that De la Torre is in need of treatment for substance abuse, he would be required to execute a FLA, Inc. contract. Finally, the referee recommends that the Bar be awarded costs incurred during the disciplinary process.

The Bar petitioned for review, challenging the referee's recommended sanction. De la Torre filed a cross-petition challenging certain findings in aggravation. The Bar filed an amended affidavit of costs totaling $2,957.80, which was not challenged.

DISCUSSION

Neither party challenges the referee's findings of fact or recommendations as to guilt. Therefore, we approve the referee's findings of fact and recommendations as to guilt. Based on the parties' arguments, there are two issues to address: (1) whether there is competent, substantial evidence to support the referee's findings in aggravation; and (2) whether the referee's recommended ninety-day suspension is reasonably supported by the standards and caselaw. We address these issues, in turn.

With regard to the first issue, we examine whether there is competent, substantial evidence to support the referee's findings in aggravation. De la Torre asserts that the record does not support any of the referee's findings in aggravation, except the finding that at the time of his arrest he had substantial experience in the practice of law, which we approve here. The Bar argues that all of the referee's findings in aggravation are supported. The standard of review is whether the referee's findings of aggravation are clearly erroneous or without support in the record. See Fla. Bar v. Valentine-Miller, 974 So.2d 333, 336 (Fla.2008) (a referee's findings of aggravation and mitigation are presumptively correct and will not be disturbed unless such findings are clearly erroneous or without record support); Fla. Bar v. Arcia, 848 So.2d 296, 299 (Fla.2003) (same).

De la Torre raises arguments pertaining to three of the referee's findings in aggravation (a pattern of misconduct, bad faith obstruction of the disciplinary proceeding, and refusal to acknowledge the wrongful nature of conduct) that we find without merit and reject without discussion, except to note that our review of the record shows the referee's findings for these aggravating factors are supported. We therefore approve the findings of these factors.

We briefly address De la Torre's argument that the referee's finding that he acted from a dishonest or selfish motive in failing to reporting his two felony pleas is erroneous. De la Torre asserts that he relied on his trial counsel's advice that he was not entering pleas to any felony offenses. Therefore, De la Torre claims that he did not report what he thought were misdemeanor offenses to the Bar, because the Bar rules in effect at that time did not require reporting of misdemeanor pleas. We find De la Torre's claim about relying on his trial counsel's assurance that he was not entering pleas to any felony offenses to be utterly incredible. There is no plausible excuse for a member of The Florida Bar, who had more than twelve years of experience at the time, not to be fully aware that he was entering nolo contendere pleas to two felonies. The record shows that in his colloquy at the sentencing hearing, the trial judge specifically addressed that the charges of battery on a police officer and possession of cocaine each carried maximum sentences of five years' imprisonment. Further, the trial judge ensured that De la Torre both understood his rights and voluntarily entered nolo contendere pleas to these felony charges. De la Torre clearly failed to fulfill his duty under the Bar rules to report his two felony pleas to the Bar. Accordingly, we approve the referee's finding that De la Torre demonstrated a dishonest or selfish motive.

De la Torre's assertion that the referee erred in finding that he engaged in deceptive practices "during the disciplinary process"⁴ because he may have misidentified himself to the arresting officer in November 1999 also merits examination. The referee's finding of this aggravating factor is clearly erroneous for two reasons. First, the referee's observation that De la Torre may have misidentified himself to the arresting officer in November 1999 is not an actual finding of fact; the referee did not conclude that De la Torre made that misrepresentation. Second, even if there had been a finding that De la Torre deliberately misidentified himself to the arresting officer, such a misleading statement in 1999 was not part of the "disciplinary process," which did not commence until seven years later. Accordingly, we disapprove the referee's finding that De la Torre submitted false evidence, false statements, or engaged in other deceptive practices in the context of the "disciplinary process."

Next, we turn to the recommended sanction. The Bar argues that the referee's recommended ninety-day suspension is too lenient and, if approved by the Court, would embolden other lawyers to conceal their pleas to criminal offenses from the Bar. The Bar asserts that De la Torre's misconduct warrants a one-year suspension. De la Torre, in turn, argues that his substantial mitigation and caselaw supports the referee's recommended sanction.

In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's finding of fact because, ultimately, it is the Court's responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee's recommendation for disciplining a lawyer, as long as the referee's recommended discipline has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. Temmer, 753...