Fla. Bar v. Norkin
| Decision Date | 23 January 2014 |
| Docket Number | No. SC11–1356.,SC11–1356. |
| Parties | THE FLORIDA BAR, Complainant, v. Jeffrey Alan NORKIN, 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 Randi Klayman Lazarus, Bar Counsel, The Florida Bar, Sunrise, FL, for Complainant.
Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, FL, for Respondent.
We have for review a referee's report recommending that Respondent Jeffrey Alan Norkin be found guilty of professional misconduct. The referee recommended a sanction of a ninety-day suspension, followed by an eighteen-month period of probation. We have jurisdiction. Seeart. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendations of guilt. We disapprove the referee's recommended sanction of a ninety-day suspension and, instead, impose a two-year suspension. Further, Respondent shall receivea public reprimand that will be administered before the Court.
On July 11, 2011, The Florida Bar filed a complaint against Norkin, alleging that he engaged in numerous acts of misconduct by behaving in an unprofessional and antagonistic manner during the course of litigating a civil case. A referee was appointed to consider the complaint and hold hearings. The referee has issued a report in which she made findings and recommendations.
In July 2008, Respondent was representing the defendants, Mr. David Beem and “Floors to Doors, Inc., a Florida corporation,” in Gary Ferguson, individually, and derivatively on behalf of Floors to Doors, Inc. v. David Beem and Floors to Doors, Inc., Circuit Court Case Number: 07–34790 CA 20, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami–Dade County (“ Ferguson v. Beem ”). Attorney Gary Brooks, a thirty-year member of The Florida Bar, represented the plaintiffs in the litigation.
Previously, Ferguson and Beem had decided to establish a business together and formed a corporation. Approximately ten years after Ferguson and Beem started the business, the two had serious conflicts that resulted in the legal action. Beem was initially represented by a different attorney, but Respondent assumed representation in July 2008. Initially, Respondent was cordial in his interactions with Brooks. However, one month later, in August 2008, Respondent's demeanor changed and he became combative. Based upon Respondent's unprofessional behavior towards the presiding judges, a senior judge who was appointed to serve as a court-appointed provisional director of the corporation, and opposing counsel, the referee recommended that Respondent be found guilty of violating Rules Regulating the Florida Bar 4–3.5(c) (), 4–8.2(a) (), 4–8.4(a) (), and 4–8.4(d) ().
With regard to the disciplinary sanction, the referee recommended a ninety-day suspension followed by an eighteen-month period of probation. The referee also recommended that as a condition of the suspension, Respondent must submit to an evaluation by a licensed and Florida Bar-approved mental health professional and undergo any recommended counseling. The referee awarded costs to the Bar in the amount of $7,970.53.
On review, Respondent asserts that the referee's recommendations of guilt are not supported. In addition, both Respondent and the Bar challenge the referee's recommendation of a ninety-day suspension. Respondent claims that the misconduct warrants only a public reprimand. The Bar argues that the appropriate sanction is a one-year suspension with a public reprimand.
Rules 4–8.2(a) and 4–8.4(a).Rule 4–8.2(a) states that a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, or public legal officer. Rule 4–8.4(a) provides that a lawyer shall not violate or attempt to violate the Rules of Professional Conduct.
The referee found that during the Ferguson v. Beem litigation, presiding Judge Dresnick appointed Mr. David Tobin, a senior circuit judge and judicial officer, to serve as a provisional director of Floors to Doors, Inc., to “break the tie for any vote on which [the two existing directors didn't] agree.” Respondent vigorously opposed Judge Dresnick's decision to appoint Tobin. Further, as noted in the record of a later hearing before Judge Dresnick, the Judge stated to Respondent: “You had unpleasant things to say about Mr. Tobin.”
When Tobin called the first meeting at Floors to Doors, Ferguson and Beem gave him a written outline with regard to issues that they were unable to agree upon. Tobin listened to their respective positions and made decisions regarding each issue. However, Respondent called Tobin later and complained to him, arguing that Tobin should require Ferguson to invest more money in the corporation. Tobin explained to Respondent that this was not the function of a provisional director.
Under the terms of Judge Dresnick's appointment, Ferguson and Beem were both required to pay half of Tobin's fee. Ferguson paid, but Beem did not. Tobin was forced to withdraw from the case and hire counsel to represent him for the purpose of collecting his unpaid fee. A writ of garnishment was served on Respondent. In a letter dated October 27, 2009, Respondent wrote Tobin and stated:
I hereby demand that you rescind, vacate and withdraw the writ of garnishment or I will file suit against [you] in one week from today's date....
Further, I wonder why it is Gary Ferguson who delivered or had any part in delivering or any role whatsoever related to this writ of garnishment. The cozy, conspiratorial nature of your relationship with Mr. Ferguson and/or his counsel will be fully investigated in any lawsuit filed against you.
Again, Mr. Tobin, your misuse of the law is unbecoming of a former judge and it will be addressed fully in the courts....
The referee found that Respondent's correspondence to Tobin improperly threatened the filing of a legal action against Tobin personally and, without supporting facts, asserted that Tobin was involved in a conspiracy. After considering the evidence produced at the disciplinary hearing, which included Tobin's credible testimony, the referee concluded that Tobin did not have a cozy, conspiratorial relationship with Ferguson or his attorney. The referee found that there was no conspiracy and that Respondent had made the statement with reckless disregard for the truth. Further, Respondent published his groundless allegation to third parties, Brooks and Beem. Norkin's sole purpose in making the statement was to berate Tobin into dissolving the writ of garnishment.
Also, in the Ferguson v. Beem litigation, Respondent filed a motion to recuse Judge Dresnick, in which Respondent also made disparaging comments regarding Judge Dresnick and Senior Judge Tobin. Respondent asserted:
At a hearing on December 22, 2009, [Floors to Doors (FTD) ] submitted incontrovertible proof that Ferguson had directly and egregiously violated a court order by effectively stealing $16,000 from FTD's operating account, Judge Dresnick again focused his anger on undersigned, stating among other things that FTD should move to recuse him if they are unhappy with how he has presided over the case and that every time undersigned appears before him, he repeats the “Same crap.” Judge Dresnick ordered Ferguson to return the money but denied all requests for sanctions despite the clear, criminal violation of the Court's order.
... Mr. Tobin's efforts did nothing whatsoever to help the company and he, like Judge Dresnick, exclusively acted at the beck and call of Ferguson, whom the court has found filed this lawsuit solely to injure the company and Beem. Judge Dresnick then sanctioned FTD for not paying Tobin despite the fact that every hearing Tobin attended he did not give notice to undersigned.
At all times, Judge Dresnick's rulings and demeanor have been favorable to Ferguson, who has, in fraudulent and criminal manner, used this Court as an instrument of destruction. He has accomplished this exclusively through the conduct of the case by Judge Dresnick.
... [I]t seems apparent that Judge Dresnick has known and been well-acquainted with opposing counsel, Gary Brooks, Esq. They exchange personal information and are very friendly with each other. On the other hand, there have been no such pleasantries between Judge Dresnick and this attorney. Obviously, based on the foregoing, Judge Dresnick's treatment and demeanor toward undersigned has been quite opposite: hostile, impatient, and highly critical and disapproving.
Respondent's motion to recuse Judge Dresnick contained statements alleging that Judge Dresnick acted at the “beck and call” of the plaintiff, and that there was an improper and illegal relationship between the judge and plaintiffs' counsel, Brooks. The referee found Respondent's motive was to obtain the disqualification of Judge Dresnick and, thus, a more favorable forum for the litigation of his clients' claim. Further, the referee found that Norkin's statements were devoid of any basis in the record.
Before this Court, Norkin claims that his statements did not accuse Tobin of “corrupt conduct” or “...
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