Fla. Bar v. Picon
| Decision Date | 08 December 2016 |
| Docket Number | No. SC15–385,SC15–385 |
| Citation | 205 So.3d 759 |
| Parties | THE FLORIDA BAR, Complainant, v. Jean M. PICON, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Executive Director, The Florida Bar, Tallahassee, Florida; Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida; and Patricia Ann Toro Savitz, Bar Counsel, The Florida Bar, Orlando, Florida, for Complainant
Jean M. Picon, pro se, Melbourne, Florida, for Respondent
We have for review a referee's report recommending that respondent, Jean M. Picon, 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 ninety-one days. Picon has petitioned for review, challenging the sufficiency of the referee's report, the referee's recommendations as to guilt, and the referee's recommended discipline. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we reject Picon's challenges to the sufficiency of the referee's report and approve the referee's findings of fact and recommendations of guilt. However, we disapprove the referee's recommended discipline as too lenient in light of the number of acts of client neglect committed by Picon and her prior disciplinary record. We instead impose a one-year suspension from the practice of law.
In February 2015, The Florida Bar filed a complaint against Picon alleging that she, as counsel of record in three separate criminal cases, engaged in misconduct in violation of several Bar Rules. A referee was appointed to consider the Bar's complaint. After conducting a hearing on both guilt and discipline, the referee submitted a report for the Court's review, in which he made the following findings and recommendations.
In State v. Smith, Picon, as counsel of record for the defendant, repeatedly failed to timely appear for court proceedings before Judge Charles Roberts. On one specific occasion, Judge Roberts directed the parties in the case to return to court at a specific time to address matters outside the presence of the jury. Picon failed to abide by Judge Roberts' explicit instructions and returned to court tardy. She also disregarded explicit instructions from Judge Roberts to file a pretrial motion by a specific date before the commencement of trial. She instead filed the motion at three o'clock in the morning the day trial was scheduled to commence. Picon acknowledged in her testimony before the referee that she knew she was not in compliance with Judge Roberts' directive when she filed the motion.
Picon's conduct in the Smith case ultimately resulted in Judge Roberts initiating contempt proceedings against her. During those proceedings, Judge Roberts stated:
I can no longer tolerate this. It is impacting my ability to function as a judge in this division. It impacts my ability to service all the defense attorneys out there and their clients. It impacts witnesses and now a venire.
Adjudication was withheld by Judge Roberts in the contempt proceedings and Picon was ordered to pay a $250 fine, perform twenty-five hours of community service, and write a letter of apology to every judge and judicial assistant in the criminal division. The Fifth District Court of Appeal affirmed the contempt order. Picon v. State, 149 So.3d 35 (Fla. 5th DCA 2014) (table).
In State v. Jennings, Picon represented a defendant in a criminal proceeding before Judge David Dugan. On November 26, 2013, Respondent failed to attend a scheduled hearing with her client, resulting in the issuance of a bench warrant and the incarceration of her client for five days. The hearing had been scheduled at the court's direction and a notice to appear had been served on Picon. Picon was also notified of the hearing date and time via e-mail from the prosecuting attorney. Picon, however, failed to add the hearing date and time to her calendar or read the e-mail from the prosecuting attorney.
In State v. Richardson, Picon, as counsel of record for the defendant, knowingly appeared for a hearing on December 19, 2013, before Judge Stephen Koons on her client's motion to modify probation without her client and at a time other than that provided by the court in the notice to appear. Judge Koons, nevertheless, proceeded with the hearing. During the hearing, Picon presented incorrect information regarding her client's compliance with the terms and conditions of her probation, resulting in the denial of the motion. Later that same day, Picon's client appeared before Judge Koons at the time stated in the notice to appear. At that point, several unsuccessful attempts were made to ascertain Picon's whereabouts and determine whether she would be attending the hearing at the scheduled time. Judge Koons ultimately permitted Picon's client to proceed pro se and, upon consideration of the documentation presented by Picon's client, granted the relief sought in her motion.
The referee also found that Picon frequently failed to notify the court and opposing counsel of conflicts in her schedule. Opposing counsel often attempted to reach Picon by phone to ascertain her whereabouts and whether or not she planned to attend a scheduled hearing. Such attempts, however, were often unsuccessful and voicemail messages could not be left for Picon because her inbox was routinely full. Also, judicial assistants and other court personnel would often go to great lengths to determine Picon's whereabouts and whether she would be attending a hearing. Such lengths included court deputies utilizing the intercom system to contact each other in an attempt to ascertain Picon's whereabouts and whether she would be attending a hearing.
On these facts, the referee recommended that Picon be found guilty of violating Bar Rules 4–1.1 (); 4–1.3 ("A lawyer shall act with reasonable diligence and promptness in representing a client."); 4–3.4(c) (); and 4–8.4(d) ().
The referee found five aggravating factors: Picon engaged in a pattern of misconduct; committed multiple offenses; had substantial experience in the practice of law; harmed vulnerable victims; and had a prior disciplinary record that included a ten-day suspension for failing to timely appear for court proceedings, a thirty-day suspension for failing to comply with this Court's suspension order, and a public reprimand for failing to timely respond to inquiries from the Bar. The referee also found four mitigating factors: Picon lacked a dishonest or selfish motive; had personal or emotional problems; other penalties and sanctions had been imposed against her; and Picon expressed remorse for her conduct. As a sanction, the referee recommended that Picon be suspended from the practice of law for ninety-one days. He also recommended that costs be awarded to the Bar in the amount of $6,699.01.
Picon filed a notice of intent to seek review of the report of referee, challenging the proceedings before the referee and the sufficiency of the referee's report, the referee's recommendations as to guilt, and the referee's recommended discipline. On June 30, 2016, we issued an order directing Picon to show cause why the referee's recommended discipline should not be disapproved and a more severe sanction be imposed. The order also provided that, on the Court's own motion, Picon was suspended "until further order of this Court."
We first address several challenges by Picon to the sufficiency of the referee's report. Picon argues that the report of referee in this case does not reflect the referee's independent judgment and that the referee merely adopted the Bar's proposed report of referee verbatim. As a general rule, a referee's findings and recommendations must demonstrate independent decision-making. A referee is not precluded, however, from adopting one party's proposed report of referee if the record reflects that the referee exercised independent decision-making in doing so. See Fla. Bar v. Barrett, 897 So.2d 1269, 1273 (Fla. 2005) ; Fla. Bar v. Cramer, 678 So.2d 1278, 1279 (Fla. 1996).
We are convinced by our review of the record in this case that the referee exercised independent decision-making in making his findings and recommendations. Both Picon and the Bar were given the opportunity to present arguments at the end of the disciplinary hearing on what findings should be made and what sanction, if any, was appropriate. After hearing argument from Picon and the Bar, the referee informed the parties that he planned to seek an extension of time to file his report in order to "give [the] case a hard review." His willingness to listen to the parties' arguments and desire to give the case a "hard review" indicate that the referee did not blindly adopt the Bar's proposed report of referee in this case. Such acts indicate that the referee distilled the evidence and arguments presented to him, and exercised independent decision-making in deciding whether to adopt the Bar's proposed report of referee.
Picon also argues that the referee failed to state on the record what specific findings and recommendations he intended to make in the report of referee, and that the findings and recommendations contained in the report of referee do not comport with statements made by the referee during the disciplinary hearing. There is no requirement in Bar discipline cases that a referee state on the record what findings and recommendations he or she intends to make in the report of referee. The only place a referee is required to set out his or her findings and recommendations is within the report of referee that is submitted to this Court. See R. Regulating Fla. Bar 3–7.6(m). The report, and the findings and recommendations contained therein, are not required to comport with any...
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