Fla. Bar v. Altman
| Decision Date | 07 May 2020 |
| Docket Number | No. SC18-724,SC18-724 |
| Citation | 294 So.3d 844 |
| Parties | The FLORIDA BAR, Complainant, v. Rita Horwitz ALTMAN, Respondent. |
| Court | Florida Supreme Court |
Joshua E. Doyle, Executive Director, Tallahassee, Florida, Linda Ivelisse Gonzalez, Bar Counsel, and Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
David B. Rothman and Jeanne T. Melendez of Rothman & Associates, P.A., Miami Florida, for Respondent
We have for review a referee's report recommending that Respondent, Rita Horwitz Altman, be found guilty of professional misconduct and publicly reprimanded and placed on probation for five years with special conditions. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, after having considered the referee's report, the record in this case, and the parties’ briefs, we approve the referee's findings of fact, recommendations as to guilt, and findings of aggravation and mitigation. We disapprove the referee's recommended discipline, and instead, we suspend Altman from the practice of law for three years.
On May 11, 2018, The Florida Bar (Bar) filed with the Court a Petition for Contempt and Order to Show Cause alleging that Altman failed to respond to two official Bar inquiries that requested a response to a grievance filed against her. We issued an order directing Respondent to show cause why she should not be found in contempt for failing to respond to the Bar's inquiries. Altman filed a response to the petition and the Bar filed its reply thereafter. The petition for contempt was then referred to a referee for a hearing and recommendation.
Following the hearing, the referee filed her report making the following findings of fact. On or about March 8, 2016, a Bar complaint was filed against Altman alleging ineffective assistance of counsel. The Bar notified Altman of the complaint and requested a response to the complaint; Altman provided a response. The matter was placed on monitor status pending the outcome of the underlying proceedings.
Thereafter, the Bar forwarded the matter to the Fifteenth Judicial Circuit Grievance Committee "C" and assigned attorney Scott Weiss as the investigating member for further investigation. On November 16, 2017, Altman was advised in writing of the grievance committee referral and assignment to the investigating member.
Five days later, Weiss sent Altman a letter on official Florida Bar Grievance Committee letterhead, via certified mail to her record Bar address requesting additional information. Altman signed the certified mail receipt; however, she did not respond to the letter. At the hearing before the referee, Altman testified that during this time she had been in Colorado with her son who had an unexpected heart procedure. Nevertheless, she was back in town before the Thanksgiving holiday to receive Weiss's letter. She also testified that after reading the letter, she put it on her "list of things to get done."
On January 3, 2018, Weiss sent Altman a second letter on official letterhead, informing her that she failed to respond to his first letter and gave her until January 14, 2018, a Sunday, to respond. On January 15, 2018, Altman emailed her response to Weiss. Thereafter, Weiss sent Altman a letter requesting additional information via email and certified mail to her record Bar address. In addition to receiving the letter by email on January 22, 2018, the certified mail receipt indicates that Altman's employee signed the certified mail receipt on January 24, 2018. At the hearing before the referee, Altman testified that she received the January 22, 2018, letter by certified mail and by email. This letter did not specify a due date; however, she admitted that she did not timely respond. Altman stated that she was "shocked" and "surprised" to receive an additional request for information and that she thought she had sufficiently responded previously. She testified that she put the letter in her file "of things to be done," intending to reply. Pursuant to Rule Regulating the Florida Bar 4-8.4(g), a response to the January 22, 2018, letter was due on February 6, 2018. Altman further testified that from February 4 through 12, 2018, her elderly mother was hospitalized, and she continued to run her busy practice, putting her clients before herself.
On March 7, 2018, Weiss forwarded the January 22, 2018, letter with a follow-up letter via email and certified mail to Respondent's record Bar address. The follow-up letter informed Altman that she failed to respond to the January 22, 2018, letter and further stated, According to the postal records, the letter was received by Altman's office on March 12, 2018. During the hearing before the referee, Altman admitted to receiving the email and certified letter and "placed it with other letters of ‘to do’ regarding this case."
On March 23, 2018, the Bar filed a Request for Issuance of Notice of Non-Compliance and Finding of Contempt before the grievance committee. On March 23, 2018, the Bar also mailed a letter to Altman informing her that the grievance committee would be considering the Request for Issuance of Notice of Non-Compliance and Finding of Contempt on April 18, 2018, and that she had the opportunity to make a written statement to the committee no later than five days prior to April 18, 2018.
On March 29, 2018, Altman telephoned Dr. Scott Weinstein, Clinical Director for FLA, Inc., who had personally counseled her as a condition of probation in previous disciplinary matters. Dr. Weinstein advised Altman to contact Bar Counsel. She attempted to contact Bar Counsel via telephone; however, Bar Counsel directed her to submit her request in writing to the grievance committee. Dr. Weinstein also recommended that Altman hire attorney David Rothman as counsel to represent her in this matter.
On April 10, 2018, Altman filed a response to the Bar's Request for Issuance of Notice of Non-Compliance and Finding of Contempt. At the hearing before the referee, she testified that prior to sending the response to the committee, she and her attorney reviewed it and she authorized her attorney to send it on her behalf. In her response to the committee, Altman answered the questions posed by Weiss in his prior letter, apologized, and asked that the Request for Issuance of Non-Compliance and Finding of Contempt be withdrawn. In the response, she further stated that there was good cause for her failure to respond to the January 22, 2018, letter: the letter had no due date and Altman's elderly mother was hospitalized, causing havoc in her professional and personal life. The response to the committee specifically states, "As the only child living in Florida, the care of Ms. Altman's mother was, as always, all in Ms. Altman's hands."
At the final hearing, Altman testified that she has four siblings and that two of her siblings reside in Florida, contradicting the statement that she made in her response to the committee, where she specifically stated that she was "the only child living in Florida." The referee found that Altman made this misrepresentation in an attempt to minimize her culpability in failing to timely respond. Altman corrected her testimony at the final hearing, stating that she is the only child living in Florida who cares about her mother. Nevertheless, Altman still failed to respond to the subsequent March 7, 2018, letter which was received after her mother was out of the hospital and rehabilitation.
In her response to the committee, regarding the March 7, 2018, letter, Altman claimed to be "overcome with fear," yet she acknowledged at the final hearing that the fear was not reasonable. At the final hearing, Altman admitted that she did not timely respond to Weiss's letters. She expressed remorse for her failure to timely respond to the Bar. She stated that she intended to respond but did not do so due to fear.
Based on the foregoing facts, the referee recommended that Altman be found guilty of having violated Bar Rule 4-8.4(g)(2) ( ).
In determining the recommended sanction, the referee relied on the Standards for Imposing Lawyer Sanctions (Standards) and found the following aggravating and mitigating factors. In aggravation, the referee found three factors: Standards 9.22(a) (prior disciplinary offenses); 9.22(d) (multiple offenses); and 9.22(i) (). She found five mitigating factors: 9.32(c) (); 9.32(d) (); 9.32(g) (character or reputation); 9.32(l) (remorse); and 9.32(m) ().
Based on her findings of fact, recommendations as to guilt, and findings in aggravation and mitigation, the referee recommended that Altman be publicly reprimanded by publication in the Southern Reporter and placed on probation for five years with special conditions. The referee also recommended that Altman pay the Bar's costs. The Bar seeks review of the recommended discipline.
We approve the referee's findings of fact, recommendations as to guilt, and findings in aggravation and mitigation without further discussion. The Bar challenges the referee's recommended discipline of a public reprimand followed by probation, and instead seeks disbarment. In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because, ultimately, it is the...
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