Fla. Bar v. Bosecker

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Fla. Bar v. Bosecker, 259 So.3d 689 (Fla. 2018)
• Decision Date: 27 September 2018
• Docket Number: No. SC16-1387,SC16-1387
• Parties: THE FLORIDA BAR, Complainant, v. Kelley Andrea BOSECKER, Respondent.

259 So.3d 689

THE FLORIDA BAR, Complainant,

v.Kelley Andrea BOSECKER, Respondent.

No. SC16-1387

Supreme Court of Florida.

September 27, 2018

Joshua E. Doyle, Executive Director, Tallahassee, Florida, Chardean Mavis Hill and Katrina S. Brown, Bar Counsel, Tampa, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant

Kelley Andrea Bosecker, pro se, St. Petersburg, Florida, for Respondent

PER CURIAM.

We have for review a referee's report recommending that Respondent, Kelley Andrea Bosecker, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and disbarred. We have jurisdiction. See art. V, § 15, Fla. Const. Bosecker has sought review of the referee's report. For the reasons that follow, we approve in part the referee's factual findings and recommendations as to guilt, and approve the recommended disciplinary sanction of disbarment.

FACTS

Previously, in case number SC15-1592, Bosecker was the subject of a Florida Bar (Bar) disciplinary proceeding in which the Court approved the uncontested report of the referee and found her guilty of violating Bar Rules 4-3.1 (Meritorious Claims and Contentions) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice), and imposed a forty-five day suspension. Fla. Bar v. Bosecker , No. SC15-1592, 2016 WL 2595926 (Fla. May 5, 2016).

Nearly three months later, on August 1, 2016, the Bar filed a "Petition for Contempt and Order to Show Cause" against Bosecker, alleging that she was in contempt of the suspension order in case number SC15-1592, effective May 27, 2016. Specifically, Bosecker failed to comply with Bar Rule 3-5.1(h), the notification requirement, and had also continued to engage in the practice of law during her suspension by having direct contact with her clients, engaging in discussions with opposing counsel, and contacting court personnel pertaining to the following cases in which she was counsel of record: U.S. Bank, N.A. v. Rucker , case number 2013-CA-002913, in the Fifth Judicial Circuit (Lake County, Florida); Bank of New York Mellon v. Hodge , case number 14-006510-CI, in the Sixth Judicial Circuit (Pinellas County, Florida); JP Morgan Chase Bank, N.A. v. Investor Trustee Services, LLC , case number 2013-CA-000689, in the Fifth Judicial Circuit (Lake County, Florida); DeParedes v. Green Tree Servicing, LLC , case number 5D15-3412, in the Fifth District Court of Appeal; and Investor Trustee Services, LLC v. PNC Bank N.A. , case number 2D15-4549, in the Second District Court of Appeal.

As a result of her alleged improper conduct, the Bar sought disbarment.

On August 3, 2016, the Court issued its order to show cause, directing Bosecker to show cause why she should not be held in contempt or otherwise disciplined. Bosecker filed her response on September 7, 2016, stating:

[At] no time during the suspension period did she hold herself out to be an attorney, represent to anyone that she was an attorney, send any correspondence or email representing that she was an attorney; nor did Respondent take any action that violated the terms of her suspension from the Bar.

Based upon her responses to the Bar's allegations, the case was referred to a referee.

Following a final hearing, the Report of Referee was filed with the Court on May 25, 2017. The referee recommended that Bosecker be held in contempt of the order in case number SC15-1592, and recommended that she had violated Bar Rules 3-5.1(e) (Suspension), 3-5.1(h) (Notice to Clients), 3-6.1(c) (Notice of Employment Required),¹ and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee further recommended that Bosecker be disbarred. Bosecker filed her "Notice of Intent to Seek Review of Report of Referee," and briefs have been filed by the parties.

The Referee's Findings of Fact and Recommendations as to Guilt.

Based upon the testimony presented and the evidence admitted at the hearing, the referee made the following findings and recommendations of guilt.

First, the referee found that Bosecker violated Bar Rule 3-5.1(h), as follows.

The Supreme Court of Florida issued an order dated May 5, 2016, in The Florida Bar v. Kelley Andrea Bosecker , Case No. SC15-1592, suspending Respondent from the practice of law for forty-five (45) days (the" [sic] Suspension Order’). The Suspension Order was to be effective thirty (30) days so that Respondent could protect the interests of her existing clients, unless she notified the court that the 30 days was not needed to protect her clients' interests. Respondent was ordered to accept no new business from the date of the Suspension Order until reinstated, and ordered to fully comply with Rule 3-5.1(h), Rules Regulating The Florida Bar. TFB Exh. 1.

On June 1, 2016, Respondent filed an "Amended Notice by Respondent of Commencement of Suspension," indicating that she ceased practicing law as of midnight on May 26, 2016, and elected to commence her suspension on May 27, 2016. TFB Exh. 3. On June 1, 2016, the Court entered an order making Respondent's suspension effective May 27, 2016, as requested in Respondent's notice. TFB Exh. 4. Thus, Respondent was suspended from May 27, 2016, to July 11, 2016.

From June 3, 2016, through June 13, 2016, Respondent requested extensions of time to submit her required sworn affidavit pursuant to Rule 3-5.1(h) to the Bar. The Bar granted Respondent's first request for an extension, allowing her to submit the affidavit by June 13, 2016. TFB Exh. 5. On the day the affidavit was due, Respondent again asked for additional time from the Bar, which was denied. She then filed a "Motion for Extension of Time to File Affidavit of Providing Suspension Notice" with the Court seeking an extension solely for her affidavit by June 17, 2016. TFB Exh. 6. In her motion, Respondent stated she "has sent out the required suspension notices but needs additional time to finish the list of names and addresses required to be attached to the Affidavit before the Affidavit is submitted to the Bar." The Court entered an order on June 17, 2016, allowing Respondent until June 17, 2016, to provide the affidavit to the Bar. TFB Exh. 9. Respondent submitted her Rule 3-5.1 affidavit to the Bar on June 16, 2016. TFB Exh. 8. Respondent neither requested nor was given an extension to submit the Suspension Order to the necessary persons or entities. TFB Exhs. 5, 6, 9.

The evidence showed, and Respondent admitted, that she was still furnishing a copy of her Suspension Order to clients, opposing counsel, and courts in mid-June 2016, and as late as June 16, 2016. TFB Exhs. 7, 12d, 13f, 16d, 20e. Additionally, Respondent failed to provide a copy of the Suspension Order to at least one client, Daniel and Jill Baez. TFB Exhs. 8, 19 a-b. The Court heard from the following witnesses who each testified about Respondent's violation of Rule 3-5.1(h) : Melissa Mara; Respondent; Alicia Raina Whiting-Bozich, Esq.; Julie Anthousis, Esq.; Chanelle L. Gardner; Judge Thomas H. Minkoff; Linda Holm; Joanne P. Simmons; Judge Vincent G. Torpy, Jr.; and, Kimberly Nolen Hopkins, Esq.

....

The Bar's petition, and the evidence presented at the final hearing, gave examples of Respondent's cases in which Respondent did not provide her clients with notice of her suspension until her suspension had already begun. Respondent did not give those clients an opportunity to take action to protect their interests. Additionally, opposing counsels, Ms. Whiting-Bozich, Ms. Anthousis, and Ms. Hopkins, testified that as of the dates Respondent contacted them regarding her clients' cases, the attorneys had neither received notice from Respondent that she was suspended nor provided a copy of the Suspension Order. The purpose of Rule 3-5.1(h) was entirely thwarted in this case, as Respondent was still furnishing a copy of her Suspension Order to clients, opposing counsel, and courts several weeks after she elected to start her suspension on May 27, 2016.

The referee next found facts pertaining to her recommendations that Bosecker was guilty of violating Bar Rules 3-5.1(e) and 3-6.1² :

The evidence presented at the hearing established clearly and convincingly that Respondent violated Rule 3-5.1(e) by continuing to practice law while suspended, and Rule 3-6.1(c) [sic] by having direct client contact while suspended. Respondent improperly engaged in direct contact with her clients during her period of suspension, and improperly continued to assist her clients during her suspension. Respondent engaged in improper and prohibited discussions with opposing counsel during her suspension. Respondent engaged in improper discussions with court personnel during her suspension. Respondent held herself out to the courts and opposing counsel as an attorney eligible to practice law. Respondent was also allegedly employed during the period of suspension without complying with the requirements of Rule 3-6.1.

The Referee heard from the following witnesses who testified about Respondent continuing to practice law while suspended, and her direct client contact while suspended: Respondent; Alicia Raina Whiting-Bozich, Esq.; Julie Anthousis, Esq.; Chanelle L. Gardner; Judge Thomas H. Minkoff; Linda Holm; Grace Ann Fagan, Esq.; Kimberly Nolen Hopkins, Esq.; and, Erica DeParedes.

At the final hearing, evidence was presented to support this Rule violation.

Respondent stated in the May 27, 2016, letter that she sent to her clients, opposing counsel, and the courts that she would monitor the clients' cases during the suspension period and that the clients should as well. TFB Exh. 2. Respondent's letter advised the clients that if they needed legal assistance during the suspension period, she would be happy to refer them to an appropriate attorney, and to feel free to contact her if they had any questions or needed additional information. Respon

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