Fla. Bar v. Alters

• Decision Date: 21 November 2018
• Docket Number: No. SC14-100,SC14-100
• Citation: 260 So.3d 72
• Parties: The FLORIDA BAR, Complainant, v. Jeremy W. ALTERS, Respondent.
• Court: Florida Supreme Court

260 So.3d 72

The FLORIDA BAR, Complainant,

v.Jeremy W. ALTERS, Respondent.

No. SC14-100

Supreme Court of Florida.

November 21, 2018

Joshua E. Doyle, Executive Director, Tallahassee, Florida, William Mulligan, Bar Counsel, Miami, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant

Jamie Leigh Webner and Andrew Scott Berman of Young, Berman, Karpf & Gonzalez, P.A., Miami, Florida, for Respondent

PER CURIAM.

We have for review a referee's report recommending that Respondent, Jeremy W. Alters, be found guilty of professional misconduct and not disciplined. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, after having considered the referee's report, the record in this case, the parties' briefs, and oral arguments, we approve in part the referee's findings of fact. However, we additionally find that Alters engaged in dishonest and deceitful conduct by using one client's funds to pay obligations owed to another client. Therefore, we approve in part and disapprove in part the referee's recommendations as to guilt, and find Alters guilty of two additional rule violations. We also approve the referee's findings in aggravation, and approve in part the findings in mitigation. However, we find that two of the referee's findings in mitigation are unsupported by the record, and disapprove those findings. Last, we disapprove the referee's recommendations as to discipline and costs. We instead disbar Alters and award The Florida Bar its costs, as set forth below. We also direct that no further proceedings in this case shall be held before Circuit Judge Marcia B. Caballero as referee.

BACKGROUND

On December 22, 2011, The Florida Bar (Bar) filed with the Court a Petition for Emergency Suspension alleging that, under Alters' supervision, his law firm made improper transfers from its trust account to its operating account. The Bar alleged that forty-nine such transfers occurred, totaling approximately $2,051,474.32, between September 2009 and December 2010. The Court approved the Bar's Petition for Emergency Suspension and suspended Alters from the practice of law on December 28, 2011. See Fla. Bar v. Alters , 79 So.3d 745 (Fla. 2011) (table). Alters filed a Motion for Dissolution and, following a hearing before a referee, the referee filed with the Court her report finding that there was no basis to conclude that Alters had made or authorized the improper transfers, and that no clients had been injured by the improper transfers. She recommended that Alters be reinstated to the practice of law. The Court approved the referee's findings and recommendation and reinstated Alters to the practice of law on January 25, 2012. See Fla. Bar v. Alters , 81 So.3d 416 (Fla. 2012) (table).

Thereafter, on January 22, 2014, the Bar filed its complaint in this case alleging that, based on the same misconduct alleged in the Petition for Emergency Suspension, Alters had violated six Rules Regulating the Florida Bar (Bar Rules): rules 3-4.3 (Misconduct and Minor Misconduct); 4-1.15 (Safekeeping Property); 4-8.1(a) (a lawyer in connection with a disciplinary matter shall not knowingly make a false statement of material fact); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-1.1(a) (Nature of Money or Property Entrusted to Attorney); and 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose). The complaint did not allege any misconduct occurring subsequent to Alters' January 25, 2012, reinstatement to the practice of law. The matter was referred to the same referee that considered the Petition for Emergency Suspension, and the referee filed her report with the Court.

The referee made the following limited findings of fact in this case. Numerous improper transfers from Alters' firm's trust account to its operating account were made beginning in September 2009. Alters first became aware of these transfers on February 9, 2010. Although Alters eventually learned that there were other improper transfers made, he did not become aware of those until December 2010. He did not report the improper transfers to the Bar or to his partners at the firm, and failed to implement any safeguards to prevent further improper transfers from occurring. Additionally, Alters failed to put into place measures to ensure compliance with the rules governing trust account management.

Alters and a former partner in the firm, who was the firm's managing partner when some of the improper transfers from the trust account occurred, were investigated by the Bar and subject to disciplinary proceedings for this trust account misconduct. However, despite the fact that Alters' former partner was charged with the same misconduct, the Bar cooperated with her and she was permitted to enter into a consent judgment. The former managing partner then provided testimony in this matter against Alters, which the referee found not to be credible. Nevertheless, Alters demonstrated a cooperative attitude throughout his own disciplinary proceedings.

The referee found that, of the twenty-four witnesses called at the disciplinary hearings, only the former comptroller of the firm testified that Alters made, or ordered, the improper transfers; however, the referee found the comptroller's testimony not credible. The comptroller admitted to meticulously altering bank documents to obscure the improper transfers and to "pushing the button" on each improper transfer that was made, though he contended that each transfer was made at Alters' direction. The comptroller provided text messages that he allegedly backed up from his phone to prove that Alters directed him to make the improper transfers. However, the referee concluded that the text messages, which were heavily relied upon by the Bar's auditor in making his report to the Bar and testimony before the referee, were unreliable as a result of the manner in which the comptroller saved them. Further, the referee found that it is undisputed that each of the transfers was made by the comptroller, despite that another witness testified at the final hearing that the firm's former managing partner admitted to having authorized the initial transfers.

Based on these scant findings, the referee recommends that Alters only be found guilty of having violated Bar Rules 4-1.15 (Safekeeping Property) and 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose). The referee recommends that Alters be found not guilty of the four other alleged rule violations. Below we discuss only the two not guilty recommendations challenged by the Bar.

The referee recommends that Alters be found not to have violated Bar Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) because she found no evidence that Alters engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. The referee explained that she so found because there was no evidence that Alters created, or directed anyone to create, any false documentation in connection with these proceedings.

The referee also recommends that Alters be found not to have violated Bar Rule 5-1.1(a) (Nature of Money or Property Entrusted to Attorney) for having failed to self-report the improper trust account transfers to the Bar. She also found that Alters' attempt to replenish the trust account with his own funds did not amount to impermissible commingling in violation of Bar Rule 5-1.1(a) in light of a subsequent version of the rule.¹ The referee explains in her report that Alters' actions would have been encouraged under the amendment to the rule, and thus it would be "inequitable" to find him guilty of having violated the rule.

In determining the recommended sanction, the referee considered Alters' personal history, prior discipline, and the existence of aggravating and mitigating factors pursuant to the Florida Standards for Imposing Lawyer Sanctions (Standards). The referee found two aggravating factors in this case: Standards (1) 9.22(d) (multiple offenses); and (2) 9.22(i) (substantial experience in the practice of law). She found ten mitigating factors: Standards (1) 9.32(a) (absence of a prior disciplinary record); (2) 9.32(b) (absence of a dishonest or selfish motive); (3) 9.32(c) (personal or emotional problems); (4) 9.32(d) (timely good faith effort to make restitution or to rectify consequences of his misconduct); (5) 9.32(e) (full and free disclosure to disciplinary board or cooperative attitude toward proceedings); (6) 9.32(g) (character or reputation); (7) 9.32(h) (physical or mental disability

or impairment ); (8) 9.32(i) (unreasonable delay in disciplinary proceedings provided that the respondent did not substantially contribute to the delay and provided further that the respondent has demonstrated specific prejudice resulting from that delay); (9) 9.32(k) (imposition of other penalties or sanctions); and (10) 9.32(l ) (remorse).

Based on her findings of fact, recommendations as to guilt, and findings in aggravation and mitigation, the referee recommends that Alters not be further sanctioned. The referee explains that her recommendation is made in light of the

manner in which this case was prosecuted in the media even before the complaint was filed ...; the length of time it took to bring the complaint formally against [Alters] ...; the impact that this bar complaint has had on his legal standing and reputation; and the disproportionate treatment in the handling of the bar complaint against [Alters' former managing partner] and [Alters].

Report of Referee at 67-68. The referee suggests that, while the two rule violations that she recommends Alters be found to have committed may warrant a public reprimand or suspension, Alters "has already been subjected to a 5 year involuntary suspension,"² and suffered the effects of a public reprimand through negative media attention received as a result of the Bar's apparent...