Fla. Bar v. Cohen, SC12–2724.

• Decision Date: 12 February 2015
• Docket Number: No. SC12–2724.,SC12–2724.
• Citation: 157 So.3d 283
• Parties: The FLORIDA BAR, Complainant, v. Daniel Mark COHEN, Respondent.
• Court: Florida Supreme Court

157 So.3d 283

The FLORIDA BAR, Complainant

v.Daniel Mark COHEN, Respondent.

No. SC12–2724.

Supreme Court of Florida.

Feb. 12, 2015.

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Adria E. Quintela, Staff Counsel, and Alan Anthony Pascal, Bar Counsel, The Florida Bar, Sunrise, FL, for Complainant.

Daniel Mark Cohen, pro se, West Palm Beach, FL, for Respondent.

Opinion

PER CURIAM.

We have for review a referee's report recommending that respondent Daniel Mark Cohen be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and receive a public reprimand, among other sanctions. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed in this opinion, we approve the referee's findings of fact and recommendations as to guilt. However, we disapprove the referee's recommendation for a public reprimand. We conclude instead that a public reprimand and a ten-day suspension are appropriate.

FACTS

In December 2012, The Florida Bar filed a complaint against Cohen, alleging that he engaged in misconduct in violation of the Bar Rules. A referee was appointed to consider the matter. Following a hearing, the referee submitted her report for the Court's review, in which she made the following findings and recommendations.

Cohen was hired to represent a client at a resentencing hearing in the client's criminal case pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). On March 15, 2012, Cohen was mailed a Notice of Hearing, indicating that the resentencing hearing was scheduled for March 28, 2012. The referee found that Cohen received the Notice on March 19. On the same day, Cohen filed a “Motion to Continue Resentencing Hearing and Notice of Unavailability,” asserting that the notice provided for the Graham resentencing hearing was not reasonable and that he did not have adequate time to prepare; Cohen also stated in the motion that he was unavailable on March 28 because he was previously retained to prepare a petition for writ of certiorari on behalf of another client. Significantly, Cohen did not indicate in the motion whether the State agreed to the continuance, he did not submit a copy directly to the presiding judge, and he did not set the motion for a hearing.

Because the client's resentencing hearing had not been continued, on the day set for the hearing, March 28, 2012, the presiding judge traveled from the county where he was then assigned to the county where the hearing was to take place; the judge had reserved a courtroom and scheduled court staff in order to conduct the hearing. The assistant state attorney, the client, and the client's former appellate attorney were also present. However, Cohen did not appear. As a result, the presiding judge was forced to reschedule the hearing for a later date. The judge testified before the referee, without hesitation, that had Cohen appeared at the hearing and requested a continuance, the judge likely would have granted his request. The assistant state attorney also testified that she had no objection to Cohen's request for a continuance. However, Cohen simply chose not to attend. The referee found that Cohen has substantial experience in the practice of law, and particularly in the practice of criminal law, and he should have known that his motion to continue was not self-executing. The resentencing hearing was properly noticed and it had not been continued; thus, Cohen was required to appear.

Following the hearing, the referee noted that Cohen made no personal effort to contact the presiding judge to explain his absence.¹ Accordingly, the judge reported Cohen's conduct to the Bar.

Based on these facts, the referee recommended that Cohen be found guilty of violating two Bar Rules: 4–1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 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).

The referee found two aggravating factors in this case: Cohen has substantial experience in the practice of law, and he has refused to acknowledge the wrongful nature of his misconduct. The referee also found five mitigating factors: Cohen has no prior disciplinary record; he was suffering from personal or emotional problems at the time of his misconduct; he exhibited a cooperative attitude during the disciplinary proceeding; he demonstrated good character and reputation; and he showed remorse.

In making her recommendation as to the sanction, the referee expressly found that Cohen's conduct caused harm to the legal system:

While minimal direct prejudice, harm or injury resulted to [the client], the Respondent's actions ultimately required [the client's] resentencing hearing to have to be postponed. The delay to the court system was proven and evident. Continuing court hearings and having litigants come to court without being able to resolve the issues result in undue hardship to the administration of justice. This also results in additional expense and unnecessary use of work hours and administrative functions, such as the transportation of inmates (in this case [the client] was an inmate and had to be transported for the hearing). Thus, the Respondent's ethical misconduct is harmful to the legal system and cannot be tolerated by an officer of the court.

Accordingly, the referee recommended that Cohen receive a public reprimand before The Florida Bar Board of Governors. The referee also recommended that Cohen make an appointment with Florida Lawyer's Assistance, Inc. (FLA), undergo a full evaluation, and abide by all of FLA's recommendations (including a rehabilitation contract if necessary). The referee recommended that Cohen schedule a review of his law practice by the Law Office Management Assistance Service (LOMAS), and fully comply with any of its recommendations. Finally, the referee awarded costs to the Bar in the amount of $2,830.28.

Cohen filed a Notice of Intent to Seek Review of Report of Referee challenging the referee's recommendations as to guilt. In July 2014, the Court issued an order directing him to show cause why the referee's recommended sanction should not be disapproved and a more severe sanction imposed. Cohen filed a response to the order.

ANALYSIS

Initially, because the essential facts in this case are not disputed, we approve the referee's findings of fact without further comment. We address here Cohen's argument that the referee erred in recommending that he be found guilty of violating Bar Rules 4–1.3 and 4–8.4(d). The Court has repeatedly stated that the referee's factual findings must be sufficient under the applicable rules to support the recommendations as to guilt.See Fla. Bar v. Shoureas, 913 So.2d 554, 557–58 (Fla.2005).

The referee first recommended that Cohen be found guilty of violating Bar Rule 4–1.3, which provides that a lawyer “shall act with reasonable diligence and promptness in representing a client.” Here, the referee found that Cohen failed to attend a properly noticed, and not continued, resentencing hearing in his client's case, causing the hearing to be postponed. Cohen contends that the referee's recommendation of guilt is not supported because there is no evidence that his client suffered any harm. Indeed, it appears the client's resentencing hearing was rescheduled and the client ultimately received a lesser sentence. Cohen also presented evidence to show that the client and his family were satisfied with Cohen's representation. Nonetheless, we have previously explained there is no requirement that a client suffer actual harm as a result of an attorney's lack of diligence in order to find a violation of rule 4–1.3. See Florida Bar v. Solomon, 711 So.2d 1141, 1146 (Fla.1998) (stating that “actual harm or prejudice is not an element of incompetence or lack of diligence under the Rules Regulating the Florida Bar.”). The referee's findings in this case demonstrate that Cohen failed to act diligently on behalf of his client when he chose not to appear for the client's resentencing hearing, causing that hearing to be postponed until a later date. Accord...