Florida Bar v. Rotstein, SC01-114.

• Decision Date: 07 November 2002
• Docket Number: No. SC01-114.,SC01-114.
• Citation: 835 So.2d 241
• Parties: THE FLORIDA BAR, Complainant, v. Jonathan Isaac ROTSTEIN, Respondent.
• Court: Florida Supreme Court

835 So.2d 241

THE FLORIDA BAR, Complainant, v. Jonathan Isaac ROTSTEIN, Respondent.

No. SC01-114.

Supreme Court of Florida.

November 7, 2002.

Rehearing Denied January 10, 2003.

John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, and Elizabeth Sikora Conan, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.

Patricia S. Etkin of the Law Offices of Weiss and Etkin, Plantation, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Jonathan Isaac Rotstein. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's recommendation that Rotstein be suspended for one year.

FACTS

The Florida Bar filed a three-count complaint against Jonathan Isaac Rotstein alleging numerous violations in his negligent handling of a personal injury claim, his subsequent attempts to cover up his mistakes, and his attempts to enforce settlement agreements while knowingly taking positions adverse to the clients he was representing. After holding hearings, the referee issued a report making the following findings of fact and recommendations as to guilt.

Count I

Rotstein was hired by Ms. Linda Jarrett to handle a personal injury claim against the M & M/Mars Company. The referee found that Rotstein negligently failed to file the claim because he only wrote one letter to the company and took no further action. Rotstein did not advise Jarrett when the statute of limitations on the claim lapsed. Instead, he fraudulently created a letter that he backdated to July 8, 1998, purportedly advising Jarrett that he was withdrawing as her representative and that the statute of limitations would run on December 25, 1998. Rotstein sent additional letters to the Bar's grievance committee, dated January 29, 2000, February 26, 2000, and May 14, 2000, all of which indicated that the withdrawal letter was accurate and true. At the hearings, Rotstein admitted that he drafted the letter to Jarrett some time in September 1999, not in 1998, because he panicked when he realized that the statute of limitations had expired. The referee found that by these various letters, Rotstein submitted four false documents to the grievance committee and to the Bar.

On September 8, 2000, before the formal hearing, Rotstein sent a letter to the Bar repudiating the veracity of the July 8, 1998, letter and disavowing all previous representations in his handling of the M & M/Mars claim, including his claim that he had timely withdrawn and notified Jarrett of the statute of limitations. On December 11, 2000, Rotstein wrote a letter to Jarrett indicating that he failed to file her case and failed earlier to admit his mistake. Rotstein suggested mediation to compensate her for her injuries.

The referee recommended that Rotstein be found guilty of violating the following Rules Regulating the Florida Bar: 3-4.3 (engaging in conduct that is unlawful or contrary to honesty and justice); 4-1.4(a) (failing to keep a client reasonably informed about the status of a matter and failing to comply with reasonable requests for information); 4-3.3 (knowingly making false statements of material fact or law to a tribunal); 4-8.1(a) (knowingly making a false statement of material fact in connection with a disciplinary matter); 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice).

Count II

Ms. Margaret Beaver retained Rotstein to represent her in a claim for slip and fall injuries. Pursuant to a March 16, 2000, mediation, Beaver's claim was voluntarily settled for $4250. Beaver subsequently refused to execute the release. On July 7, 2000, Rotstein filed a motion to enforce settlement without consulting with Beaver and without her knowledge or consent, thereby knowingly taking a position adverse to his client. The referee recommended that Rotstein be found guilty of violating rule 4-1.7 (representing a client where the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interests).

Count III

Ms. Olga Petrucha retained Rotstein to represent her in a suit against a restaurant. The case settled at mediation for $500 and Petrucha executed some of the settlement documents, but she refused to endorse the settlement check when she discovered that her proceeds would be $12.15. Rotstein filed a motion to enforce settlement without discussing his actions or notifying Petrucha, and without her knowledge or consent, thereby knowingly taking a position adverse to his client. The referee recommended that Rotstein also be found guilty of violating rule 4-1.7 for this count.

As for discipline, the referee stated that counts II and III alone would likely have resulted in a public reprimand or an admonishment, but factoring in the violations for count I raises Rotstein's misconduct to an "extremely serious" level. The referee stated that Rotstein's misconduct fits within various disbarment standards of the Florida Standards for Imposing Lawyer Sanctions. The referee also found, as aggravating factors: (1) prior disciplinary offense, standard 9.22(a) (prior disciplinary conviction in Florida Bar v. Rotstein, TFB Case No.1999-31,449(07C), in which Rotstein was admonished for minor misconduct in neglecting a client's legal matter); (2) dishonest or selfish motive, standard 9.22(b); (3) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, standard 9.22(e); (4) submission of false evidence, false statements, or other deceptive practices during the disciplinary process, standard 9.22(f); and (5) substantial experience in the practice of law, standard 9.22(i) (Rotstein was admitted to the Bar in 1991). The referee found as mitigating factors: (1) timely good faith effort to make restitution or to rectify consequences of misconduct, standard 9.32(d); and (2) remorse, standard 9.32(l). The referee stated that Rotstein's actions constitute a serious offense and could carry with them "the most extreme punishment," but he concluded that "under the circumstances, disbarment is neither required nor appropriate." The referee recommended that under the "totality of the circumstances" Rotstein should be (1) suspended from the practice of law for a period of one year; (2) required to retake the ethics portion of the bar exam; and (3) required to pay all disciplinary costs. The referee also recommended that if Rotstein fails to fully comply with any of these recommendations, it should be deemed cause to subject him to further disciplinary proceedings.

The Bar petitioned for review, contesting the referee's recommendation as to discipline, arguing that at least a three-year suspension is the appropriate sanction. Rotstein cross-petitioned, arguing numerous issues.

ANALYSIS

As a preliminary matter, we note that neither party contests the referee's recommended findings of fact or recommendations as to guilt for the violations of rules 3-4.3, 4-1.4(a), 4-8.1(a), 4-8.4(c), and 4-8.4(d) under count I. Therefore, we approve the referee's findings of fact and recommendations of guilt as to these violations without further discussion. We now proceed to review the matters contested by the parties.

We first consider Rotstein's claim that his due process rights were violated because the referee did not exclude the testimony of a Bar rebuttal witness. At the hearings, Rotstein testified that he had never been sanctioned by a court for counseling clients to lie. The Bar called Judge Richard B. Orfinger as a rebuttal witness to testify about an incident in which he sanctioned Rotstein for counseling clients to make misrepresentations to the court. Rotstein argues that the testimony was unrelated to the instant case.

With regard to the admission or exclusion of evidence in bar disciplinary proceedings, this Court has held that because "bar disciplinary proceedings are quasi-judicial rather than civil or criminal, the referee is not bound by technical rules of evidence." Florida Bar v. Rendina, 583 So.2d 314, 315 (Fla.1991). Further, this Court has reviewed referees' actions regarding the admissibility of evidence in discipline cases using an abuse of discretion standard. See Florida Bar v. Hollander, 607 So.2d 412 (Fla.1992)

(Hollander failed to show that the referee abused his discretion in qualifying an expert witness); Rendina, 583 So.2d 314 (referee did not abuse his discretion regarding the admissibility of evidence). Applying that standard to the instant case, we conclude that the referee did not abuse his discretion in permitting the witness to testify in rebuttal to Rotstein's statements. More importantly, despite the extensive arguments made by Rotstein and the Bar, there is no point in the referee's report where the referee cited to or relied upon the testimony of Judge Orfinger. The referee allowed the witness to testify, but he did not mention Judge Orfinger's testimony in his report. We find that Rotstein's due process rights were not violated and that this argument is without merit.

Rotstein next argues that the referee's recommendation of guilt as to a violation of rule 4-3.3 (knowingly making false statements of material fact or law to a tribunal) for count I is not supported because Rotstein did not make any false statements or provide false testimony in a court proceeding. He argues that rule 4-3.3 applies to a lack of candor to a tribunal, not a grievance committee, and that the applicable disciplinary rule is 4-8.1(a).¹ Rotstein is correct on this point. We conclude that the referee's finding of a rule 4-3.3 violation is not supported by the facts because Rotstein's misconduct occurred in the course of...