Fla. Bar v. Gwynn
| Decision Date | 11 July 2012 |
| Docket Number | No. SC08–622.,SC08–622. |
| Citation | 94 So.3d 425 |
| Parties | THE FLORIDA BAR, Complainant, v. Mary Alice GWYNN, Respondent. |
| Court | Florida Supreme Court |
OPINION TEXT STARTS HERE
John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Adria E. Quintela, Chief Branch Discipline Counsel, The Florida Bar, Sunrise, FL, for Complainant.
Mary Alice Gwynn, Delray Beach, FL, for Respondent.
We have for review a referee's report recommending that respondent be found guilty of professional misconduct and suspended from the practice of law for ninety days. We have jurisdiction. Seeart. V, § 15, Fla. Const. For the reasons more fully explained below, we approve the referee's findings of fact and recommendations as to guilt, but we disapprove the recommended discipline, and instead impose a ninety-one-day suspension.
On April 1, 2008, The Florida Bar filed a four-count complaint against respondent, Mary Alice Gwynn, alleging various instances of misconduct relating to her representation of two clients in federal bankruptcy court matters. The complaint was referred for a hearing before a referee. A final hearing was held on August 9, 10, and 12, 2010, and subsequently, the referee filed his Report of Referee on October 25, 2010. In his report, the referee made the following findings of fact.1
First, the referee found that respondent had represented a client in the United States Bankruptcy Court for the Southern District of Florida, and that during the period of her representation, respondent failed to expedite the litigation in the best interest of the client. Instead, respondent filed numerous motions for sanctions against opposing counsel and other frivolous claims, needlessly delaying the bankruptcy proceedings. The referee found that by failing to take substantive action in the client's case, respondent failed to competently represent her client. Based on these findings the referee recommended that respondent be found guilty of violating rules 4–1.1 (); 4–3.2 (lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); 4–8.4(a) (); and 4–8.4(d) () of the Rules Regulating the Florida Bar.
Next, the referee found that because of the many frivolous motions that respondent filed in the bankruptcy case, the bankruptcy judge entered an order, on April 26, 2006, finding that respondent had acted in bad faith. In the order, the bankruptcy judge set forth specific findings regarding the numerous instances in which respondent had acted dishonestly, incompetently, and in bad faith in the pending litigation. Specifically, the bankruptcy judge found that respondent had (1) filed frivolous claims to harass her opponent and opposing counsel; (2) failed to research and verify claims she advanced in motions she filed with the court; (3) engaged in willful abuse of the judicial system; and (4) continually made allegations, both in pleadings filed with the court and in her testimony before the court, that were simply incorrect or false. The bankruptcy judge found that respondent's conduct was “objectively unreasonable and vexatious” and “sufficiently reckless to warrant a finding of conduct tantamount to bad faith ... for the purpose of harassing her opponent.”
The referee further found that the bankruptcy court's April 26, 2006, order imposed a $14,000 sanction against respondent and referred the matter to The Florida Bar for ethical review. The bankruptcy court's order was affirmed by the United States District Court, Southern District of Florida, by order dated March 14, 2007. Based on these facts, the referee recommended that respondent be found guilty of violating Rules Regulating the Florida Bar 4–3.1 (lawyer shall not bring or defend a proceeding or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous); 4–3.3(a)(1) (); 4–4.1(a) (); 4–4.4(a) (); 4–8.4(a) (); 4–8.4(c) (); and 4–8.4(d) ().
Finally, the referee found that despite the fact that respondent no longer represented any party in the case, she continued to file pleadings and papers with the federal bankruptcy court, and that on May 15, 2006, and the court entered an “Order Directing Mary Alice Gwynn, Esquire to Stop Filing Notices of Filing.” In this order, the bankruptcy judge found that respondent had filed hundreds of pages of documents pursuant to notices of Filings or notices to the court, and directed her to stop filing such items unless specifically ordered to do so by the court or unless mandated by either the bankruptcy rules or the local rules. Subsequently, on June 7, 2006, the court entered another order finding that even after the May 15, 2006, order was entered, respondent continued to file notices of filing, in defiance of the bankruptcy court's order. The order also found that respondent “improperly attempted to influence [the] court by filing numerous Notices of Filing containing inappropriate hearsay documents that are unrelated to any pending contested or adversary proceedings,” and in doing so, she “engaged in unprofessional conduct before [the] court.” Respondent was fined $500, and the court ordered that she be fined $250 for each future document she filed in defiance of the court order. Based on these facts, the referee recommended that respondent be found guilty of violating rules 4–3.4(c) (); 4–3.5(a) (); 4–8.4(a) (); and 4–8.4(d) ().
As for discipline, the referee recommended that respondent be suspended for ninety days and be required to pay the Bar's costs. Respondent now seeks review of the referee's findings of fact and recommendation as to discipline. The Bar has filed a cross-petition for review, seeking review of the referee's recommendation as to discipline.
With regard to a referee's findings of fact, this Court has repeatedly stated that its review is limited, and if a referee's findings of fact are supported by competent, substantial evidence in the record, the Court will not reweigh the evidence and substitute its judgment for that of the referee. See Fla. Bar v. Patrick, 67 So.3d 1009, 1014 (Fla.2011); see also Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000). “To successfully challenge a referee's factual findings, a party must show there is a lack of evidence in the record to support such findings or that the record clearly contradicts the referee's conclusions.” Fla. Bar v. Head, 27 So.3d 1, 7 (Fla.2010).
Here, respondent first contends that the referee improperly relied on the bankruptcy court's orders as the exclusive support for his findings of fact and thus did not make “independent” factual findings. On the issue of his reliance on the bankruptcy court orders, the referee stated in his report:
The most persuasive evidence is that advanced by the federal bankruptcy judge, who conducted evidentiary hearings and thereafter, determined that respondent had engaged in the grave, and repeated misconduct he carefully outlined in three separate orders. I have taken judicial notice of these orders, and relied upon the facts set forth in these orders, in reaching my determination in this case. I have done this after confirming that the Supreme Court of Florida has made it abundantly clear that a referee in a Florida Bar disciplinary proceeding may consider and rely upon a federal court's order and factual findings. In The Florida Bar v. Shankman 2010 WL 2680248 (Fla. July 8, 2010), 35 Fla. L. Weekly S445, the respondent challenged the referee's ruling taking judicial notice of a federal district court judge's order and a magistrate's report and recommendation in the respondent's underlying civil action. Additionally, the respondent contended that the facts in those documents “tainted” the instant proceedings and compromised the referee's independent review of the facts. In rejecting Mr. Shankman's claim, the Supreme Court of Florida noted that:
[t]he See, e.g., Fla. Bar v. Head, 27 So.3d 1 (Fla.2010); Tobkin, 944 So.2d at 224;Fla. Bar v. Vining, 707 So.2d 670, 672 (Fla.1998); Fla. Bar v. Calvo, 630 So.2d 548, 549–50 (Fla.1993); Fla. Bar v. Rood, 620 So.2d 1252, 1255 (Fla.1993). Thus, the referee could properly consider the federal district court's order and magistrate's report and, although not done here, the referee cold have relied “upon them as support for the disciplinary findings of...
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