Fla. Bar v. Ross
| Decision Date | 29 May 2014 |
| Docket Number | No. SC11–1106.,SC11–1106. |
| Citation | 140 So.3d 518 |
| Parties | THE FLORIDA BAR, Complainant, v. David Leonard ROSS, Respondent. |
| Court | Florida Supreme Court |
OPINION TEXT STARTS HERE
John F. Harkness, Jr., Executive Director, Adria E. Quintela, Staff Counsel, and Allison Carden Sackett, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
Andrew Scott Berman of Young, Berman, Karpf & Gonzalez, P.A., Miami, FL, for Respondent.
We have for review a referee's report recommending that Respondent David Leonard Ross be found guilty of professional misconduct.1 The referee recommended a sanction of a six-month suspension. We approve the referee's findings of fact and recommendations of guilt; however, we disapprove the referee's recommended sanction. Based on case law and the Florida Standards for Imposing Lawyer Sanctions, we conclude that the appropriate sanction is a three-year suspension.
The Florida Bar filed a two-count complaint against Respondent David Leonard Ross alleging that he engaged in several acts of misconduct. A referee was appointed to hold hearings and provide a report to the Court. In the report, the referee made the following findings of fact and recommendations.
Respondent is a resident of California and a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. He is licensed to practice law in Florida and in the United States District Court for the Central District of California, but not licensed to practice in California state courts.
Count I—Client's Retainer. On or about February 3, 2006, Respondent was retained to represent a client in an administrative proceeding. The client was subject to a potential suspension from her employment due to a reprimand she had received at work. She signed a retainer agreement with Respondent. He was paid a $10,000 retainer from which Respondent would be paid based upon billing at an hourly rate.
Respondent filed a response in that administrative proceeding on May 1, 2006, and requested a hearing. However, shortly before the hearing scheduled in June 2006, the client resigned from her position. She immediately informed Respondent's office that his services were no longer required as she was now pursuing an EEOC claim. She requested an accounting and a final bill from Respondent's office. No response was ever received.
In addition, on at least four occasions between February 2007 and May 2007, the client requested an accounting, a final billing, and that Respondent close her account. The client received a brief e-mail response from Respondent, but she never received a response to her request for a final billing.
On January 22, 2008, the client's subsequent attorney, Mr. Phillips, sent a certified letter, return receipt requested, to Respondent, again requesting a final accounting and demanding the return of the remaining retainer. Respondent signed the return receipt form, but did not respond to Phillips's request. On April 18, 2008, the client sent Respondent an e-mail in which she stated that it had been over twenty months since she first requested the final billing statement and the closing of her account. By e-mail, Respondent replied that he thought his paralegal had resolved the problem and that he would “speak with [the paralegal] on Wednesday.” After a week passed with no response, the client informed Respondent that she had not heard from anyone in his office, and requested that he call her the next day. However, despite the ongoing efforts to contact Respondent, neither the client nor Phillips received a response until Respondent sent Phillips an e-mail on September 26, 2008. In that message, Respondent stated that he had moved offices, his previous firm had dissolved, and “although not technically obligated,” he would send a check for $5,000 at the end of the following week. The client and Phillips did not receive anything from Respondent.
On November 30, 2009, the client filed a complaint with The Florida Bar. On December 15, 2009, Respondent sent her a cashier's check for $5,000, but he never provided her with a final billing or accounting for the money withheld.
Count II—Forged a Signature on a Court Filing. Respondent was involved in an acrimonious family matter in California regarding his elderly aunt, who was a recent widow, and numerous relatives, including his aunt's great-nephew named Rubin, who was serving as a co-trustee of the aunt's trust. Respondent believed Rubin was abusing his aunt both physically and financially.
In September 2009, Respondent filed a legal action in the United States District Court for the Central District of California against the conservator and trustees of his aunt's trust, which included Rubin. He filed the action on behalf of himself and four other relatives. Respondent listed himself as appearing “per pro” and the attorney for the other four relatives was listed as an attorney named Waddington. However, Respondent had actually forged Waddington's signature in the legal papers. Although Waddington later stated that he would have been willing to represent the relatives after meeting with them and obtaining a retainer agreement, he had never given Respondent permission to represent to the court that Waddington was attorney of record at the time of filing the complaint or permission to sign Waddington's name.
The United States District Court issued an Order to Show Cause and scheduled a hearing on the issues for October 5, 2009. At that hearing, the court entered an order dismissing the action in its entirety for being improperly filed with the unauthorized and forged signature of Waddington, which had falsely placed Waddington as attorney of record. The court continued the hearing on the Order to Show Cause for further proceedings against Respondent. Thereafter, at a subsequent hearing on the issues in December 2009, the court found Respondent in contempt for filing the complaint with a forged signature, and ordered him to pay sanctions to the court of $5,000 and attorneys' fees for Waddington and defense counsel. Respondent filed an appeal in the Ninth Circuit Court of Appeals but the appeal was dismissed for failure to file an opening brief.
Recommendations as to Guilt and Discipline. The referee recommends that the Court find Respondent guilty of violating Bar rules 4–1.4 (communication with client); 4–1.16(a)(3) (); 4–3.3(a)(1) (); 4–8.4(a) (); 4–8.4(c) (); and 4–8.4(d) ().
With regard to aggravating factors, the referee found: (1) prior disciplinary offenses—a thirty-day suspension imposed in 2001; and (2) substantial experience in the practice of law—Respondent was admitted to practice in 1982. In mitigation, the referee found: (1) absence of a dishonest or selfish motive; (2) imposition of other penalties or sanctions; and (3) remorse.
The referee recommends that the Court suspend Respondent for six months from the practice of law in Florida. In addition, the referee recommended that The Florida Bar be awarded costs in the amount of $1,785.66.
On Review. Respondent sought review before this Court. He argues that the referee should have given more weight to the three mitigating factors. Next, he challenges the referee's recommended sanction of a six-month suspension. Respondent claims that the referee's recommended sanction is too severe and not supported by case law. Finally, Respondent asserts that the referee adopted the draft report provided by the Bar and thereby violated his due process rights.
First, Respondent argues that the events surrounding his misconduct, which include the pressure he was under from his family to assist his elderly aunt, demonstrate that the referee should have given more weight to the three mitigating factors when recommending the sanction. Respondent claims that the referee's report does not provide sufficient facts regarding the family situation that existed when he filed the complaint with the forged signature. In contrast to Respondent's assertions, the Report of Referee clearly states that Respondent was involved in an extremely distasteful family matter involving his elderly aunt, who was a recent widow, and numerous relatives including Rubin. Further, the referee states that Respondent believed Rubin was abusing the aunt both physically and financially. Thus, the referee provided the relevant information in his report for this Court's consideration.
Despite the referee's sufficient findings of fact, which are supported by the record, Respondent attempts to add his version of the facts to explain his misconduct of forging the signature of attorney Waddington on the complaint. Respondent's description of the facts goes far beyond the facts found by the referee. A party cannot meet its burden by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record to support the referee's findings. Fla. Bar v. Committe, 916 So.2d 741, 746 (Fla.2005); Fla. Bar v. Nowacki, 697 So.2d 828, 832 (Fla.1997).
Here, the referee found: (1) absence of a dishonest or selfish motive; (2) imposition of other penalties or sanctions; and (3) remorse. SeeFla. Stds. Imposing Law. Sancs. 9.32(b), (k), and ( l ). Before this Court, Respondent seeks to bolster the weight of these mitigating factors by providing more detail regarding the underlying events. However, the referee found the mitigating factors based on the same underlying events and gave them substantial weight. The referee examined the lengthy suspensions in case law and then recommended a lenient suspension of six months. Accordingly, Respondent has failed to show that these mitigating factors merit additional weight.
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People v. Park
...25 P.3d 710, 712 (2001) ("[W]e view discipline as assisting, if possible, in the rehabilitation of an errant lawyer."); Fla. Bar v. Ross , 140 So.3d 518, 523 (Fla. 2014) ("[D]iscipline must protect the public from unethical conduct, must be fair to a respondent, yet sufficient to sanction t......