Fla. Bar v. Dopazo, SC15–1305

• Decision Date: 05 October 2017
• Docket Number: No. SC15–1305,SC15–1305
• Citation: 232 So.3d 258
• Parties: THE FLORIDA BAR, Complainant, v. Arturo DOPAZO, III, Respondent.
• Court: Florida Supreme Court

232 So.3d 258

THE FLORIDA BAR, Complainant,

v.Arturo DOPAZO, III, Respondent.

No. SC15–1305

Supreme Court of Florida.

[October 5, 2017]

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, and Patrick Russell, Bar Counsel, The Florida Bar, Miami, Florida, for Complainant

Andrew S. 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, Arturo Dopazo, III, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for sixty days. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendation as to guilt. However, as discussed below, we disapprove the referee's recommended sanction and instead suspend Dopazo from the practice of law for one year.

FACTS

In July 2015, The Florida Bar filed a complaint against Dopazo, alleging that he engaged in misconduct in violation of the Bar Rules. The Bar made two distinct claims in its Complaint. First, the Bar alleged Dopazo participated in a patient-client recruiting scheme orchestrated by a nonlawyer, in which Dopazo obtained clients and paid the nonlawyer for those client referrals. Second, the Bar alleged Dopazo either directly himself or through an employee or agent knowingly solicited Penny Jones, the mother of a brain-injured child at the hospital, while the child was in a coma. A referee was appointed to consider the matter. Following a hearing, the referee submitted his report, in which he made the following findings and recommendation.

On December 22, 2011, after a federal trial on the matter concluded, the Federal Bureau of Investigation sent the Bar materials concerning the investigation and subsequent indictment of two nonlawyers for their involvement in an illegal patient-client recruiting scheme with medical clinics involving local lawyers. After reviewing those materials, the Bar suspected Dopazo to have been involved in the scheme and to have paid for client referrals. At the final hearing, the Bar presented evidence that Dopazo provided thirty-one payments to Miami–Dade Services, Inc., suggesting Dopazo made these payments as part of the scheme to receive potential client information. Dopazo acknowledged the payments but explained they were made on letters of protection for healthcare services furnished to his clients at the medical clinics. The Bar admitted there was no "smoking gun" to directly support its allegation that Dopazo was involved in the patient-client recruiting scheme.

In March 2007, days after her son suffered traumatic brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center by Dopazo, who successfully solicited her to become a client of his for a fee. There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf. The referee found that Dopazo's appearance at the hospital was completely unexpected, and while she did apparently retain his services at that time, Jones' limited education and fragile emotional condition at the time likely rendered her unable to make a rational decision whether to retain counsel or reject Dopazo's efforts to sign her up as a client. In defense of his actions, Dopazo claimed that his office called him and told him to go see Jones in the hospital intensive care unit; however, the referee found that this explanation was insufficient.

The referee found that the Bar lacked clear and convincing evidence that Dopazo was involved in the patient-client recruiting scheme. However, the referee did find that Dopazo solicited Jones in March 2007. The referee recommends that Dopazo be found guilty of violating Bar Rule 4–7.18 (Direct Contact with Prospective Clients). While the referee does not explicitly identify the aggravating or mitigating factors, it appears he found as aggravating factors (1) Dopazo's prior disciplinary offense of solicitation and (2) the vulnerability of Jones, and found as mitigating factors (1) unreasonable delay in disciplinary proceedings, to which Dopazo did not substantially contribute and from which Dopazo suffered prejudice, and (2) character or reputation.

Based on his findings of fact, recommendation as to guilt, and the aggravating and mitigating factors, the referee recommends that Dopazo be suspended from the practice of law for sixty days and that he be ordered to pay the Bar apportioned costs because it was only partially successful in proving the charges by clear and convincing evidence. Dopazo seeks review of the referee's recommendation of guilt. The Bar seeks cross-review of the referee's recommended sanction of a sixty-day suspension.

ANALYSIS

Dopazo challenges the referee's recommendation that he be found guilty of violating Bar Rule 4–7.18. To the extent he challenges the referee's findings of fact for the rule violation, the Court's review of such matters is limited, and if a referee's findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla. 2000) ; see Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla. 1998). To the extent Dopazo challenges the recommendation as to guilt, 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 party challenging the referee's findings of fact and conclusion as to guilt has the burden to demonstrate that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. Fla. Bar v. Germain, 957 So.2d 613, 620 (Fla. 2007).

Dopazo argues Jones' testimony is not credible because of several discrepancies in her testimony throughout the investigation. Jones informed FBI investigators that the individual at the hospital had dark blonde hair and that the person who approached her in the hospital stated he represented Dopazo but was not actually Dopazo himself. At the final hearing, Jones testified that Dopazo himself approached her in the hospital and admitted her testimony had changed throughout the course of the investigation from 2009 until 2016, but repeatedly stated she remembered the best she could given the traumatic experiencewith her son and how long ago it occurred.

The record reflects Jones testified that she did not request a lawyer while she was in the intensive care unit with her son, did not request anyone else to find her a lawyer, did not have anyone contact Dopazo's office on her behalf, was not looking for a lawyer, and had no personal relationship with Dopazo before the encounter at the hospital. Jones also testified that she was approached by Dopazo at the hospital, met him two or three times at the hospital, and later went to his office to pick up her settlement check, where she briefly saw him again. She also identified Dopazo in the courtroom as the individual who approached her in the hospital.

Because "the referee is in a unique position to assess witness credibility, this Court will not overturn his judgment absent clear and convincing evidence." Germain, 957 So.2d at 621 ; Fla. Bar v. Batista, 846 So.2d 479, 483 (Fla. 2003). After hearing testimony from several witnesses, the referee found Jones to be a credible witness and accepted her testimony over Dopazo's testimony. The record also supports the referee's factual findings, as Jones testified directly to the issue of solicitation in the final hearing. While Jones' testimony appears to be inconsistent as to some facts, Jones consistently maintained that she did not contact Dopazo or request anyone she knew to contact Dopazo on her behalf for legal representation. Thus, the referee inherently found this testimony credible over Dopazo's testimony and found that Dopazo directly solicited Jones, in violation of Bar Rule 4–7.18.

Accordingly, because the referee was in the best position to judge the demeanor of the witnesses and their sincerity during the final hearing, and because the record evidence supports the referee's factual findings, we approve the referee's findings of fact and recommendation as to guilt.

Next, the Bar asks the Court to find one additional aggravating factor and disapprove of the referee's findings as to one mitigating factor. Dopazo suggests the referee should have found one additional mitigating factor. "[A] referee's findings of mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record. A referee's failure to find that an aggravating factor or mitigating factor applies is due the same deference." Germain, 957 So.2d at 621 (internal citation omitted).

First, the Bar suggests the referee should have found that Dopazo had a selfish motive as an aggravating factor. Here, the referee carefully weighed the evidence presented at trial. Because there was not testimony in the record pertaining to this aggravating factor, the referee's failure to find this aggravating factor is not clearly erroneous. Second, the Bar challenges the referee's finding of the mitigating factor of unreasonable delay in the disciplinary proceedings. In this case, the solicitation incident occurred sometime between March 28, 2007, and April 4, 2007. The Bar learned of Dopazo's possible solicitation of Jones on December 20, 2011, when the FBI turned over interview forms to the Bar after the Rodriguez federal patient-client scheme trial had...