In re Zavadil, SC11–1694.

• Decision Date: 02 October 2013
• Docket Number: No. SC11–1694.,SC11–1694.
• Citation: 123 So.3d 550
• Parties: FLORIDA BOARD OF BAR EXAMINERS re Daniel Mark ZAVADIL.
• Court: Florida Supreme Court

123 So.3d 550

FLORIDA BOARD OF BAR EXAMINERS re Daniel Mark ZAVADIL.

No. SC11–1694.

Supreme Court of Florida.

May 30, 2013.

Rehearing Denied Oct. 2, 2013.

Alan Howard Aronson, Chair, Miami, FL, Michele A. Gavagni, Executive Director, Thomas Arthur Pobjecky, General Counsel and Robert G. Blythe, Deputy General Counsel, Tallahassee, FL, for Florida Board of Bar Examiners.

Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, FL, for Daniel Mark Zavadil.

PER CURIAM.

This case is before the Court on the petition of Daniel Mark Zavadil seeking review of the Florida Board of Bar Examiners' Findings of Fact, Conclusions of Law, and Recommendation, which recommends that Zavadil's admission to The Florida Bar (Bar) be revoked pursuant to rule 5–14 of the Rules of the Supreme Court Relating to Admissions to the Bar (Bar Admissions Rules). We have jurisdiction.Seeart. V, § 15, Fla. Const. For the reasons discussed below, we approve the Board's recommendation and revoke Zavadil's admission.

BACKGROUND

Zavadil filed an application for admission to the Bar in July 2007. In section C of his application Zavadil acknowledged an obligation to keep his responses to the application questions current, complete, and correct by timely filing an amendment to the application. The application states that “an Amendment to Application is timely when filed within 30 days of any occurrence that would change or render incomplete any answer to any question on the application.”

Zavadil successfully completed all portions of the Florida Bar Examination. However, the background investigation conducted by the Florida Board of Bar Examiners (Board) revealed information that reflected adversely on Zavadil's character and fitness, and the Board requested that he appear for an investigative hearing. Following the March 2009 hearing, the Board decided to defer further consideration of Zavadil's application, and it requested that he submit a twenty-five page brief on legal ethics. Zavadil submitted the brief as required. On May 4, 2009, Zavadil took the oath of admission and was sworn in to the Bar.

Subsequently, on April 26, 2010, the Board sent Zavadil a notice to appear for an additional investigative hearing, pursuant to Bar Admissions Rule 5–14. Rule 5–14 authorizes the Board to initiate proceedings to revoke an applicant's admission if it determines that a “material misstatement or material omission” occurred in the application process. Zavadil appeared for the investigative hearing in July 2010. Following the hearing, the Board determined that five specifications should be filed. Zavadil filed an answer to the specifications, and a formal hearing was held in July 2011.

Specification 1 concerns Zavadil's response to question 24.e on the Florida Bar Application. That question asks: “Has any grievance, charge or complaint, formal or informal, ever been made or filed or proceedings instituted against you resulting from your practice of any profession, occupation, or engagement in any business?” If the answer to the question is “yes,” the applicant is required to state the date, the nature and facts of the complaint or charge, and the disposition of the matter. At the time he submitted his Bar application in 2007, Zavadil answered “[n]o” to this question. However, pursuant to section C of the application, Zavadil was required to file an amendment to the application within thirty days of any event that would change his answer to any question on the application. The Board alleged that on November 18, 2008, while Zavadil was working as a police officer for the City of Fort Lauderdale (City), he received a letter (November 2008 letter) from the Chief of Police, notifying him that he would be suspended for three days, effective in January 2009. In the letter, the Chief of Police explained that the bases for the suspension were “deficiencies” in Zavadil's performance and conduct reported by his supervisor. Specifically, the letter stated that the supervisor noted discrepancies, omissions, and misinformation in Zavadil's reports, as well as a pattern of “misrepresenting the facts in order to shift responsibility for [his] identified deficiencies.” The November 2008 letter also reflected that Zavadil's performance did not improve after corrective instructions, formal training, and two separate performance plans. As a result, Zavadil's supervisor reported that Zavadil engaged in “unsatisfactory performance,” in violation of police department policies and procedures. The Board alleged that Zavadil committed a material omission in the application process, in that he failed to timely amend his answer to question 24.e to disclose to the Board that a complaint or charge had been filed against him.

Also in specification 1, the Board alleged that Zavadil filed a complaint for injunctive and declaratory relief in the circuit court, challenging the suspension referenced in the November 2008 letter. As a result of that action, Zavadil's three-day suspension was rescinded by the City. The Board alleged that Zavadil failed to amend his answer to question 24.e to disclose the final disposition of the complaint or charge against him.

In his answer to the specifications, Zavadil admitted that he received the November 2008 letter and that he filed the complaint seeking injunctive relief. However, Zavadil denied that he was required to disclose these events to the Board pursuant to question 24.e. After considering the evidence presented at the formal hearing, the Board determined that the allegations in specification 1 were proven and collectively disqualified Zavadil for admission to the Bar.

Specification 2 concerns question 16.b on the Florida Bar Application. That question asks whether the applicant has ever been the plaintiff or petitioner in any court proceeding. The Board alleged that Zavadil filed a complaint for injunctive and declaratory relief in the circuit court, challenging the suspension referenced in the November 2008 letter. The circuit court issued a temporary injunction, enjoining the City from taking disciplinary action against Zavadil until he was afforded a full hearing on the merits, and the City later rescinded the suspension. The Board alleged that Zavadil made material omissions in the application process by failing to amend his answer to question 16.b to disclose these events to the Board. Zavadil has admitted that he did not timely amend his Bar application to disclose this information. However, he contends that his failure to do so was not a material omission. The Board found that the allegations in specification 2 were proven and were collectively disqualifying.

Specification 3 concerns Zavadil's appearance at an investigative hearing before the Board on March 13, 2009, prior to his admission to the Bar. The Board alleged that the notice to appear for the hearing again advised Zavadil of his obligation to keep his responses to questions on the Bar application current. Despite receiving this notice, the Board alleged that Zavadil failed to amend his answers to questions 24.e and 16.b. Also in specification 3, the Board asserted that during the investigative hearing, Zavadil did not disclose the November 2008 letter or the complaint for injunctive relief. Neither did he seek to amend his answers to questions 24.e or 16.b at the time he submitted his ethics brief. In his answer to the allegations in specification 3, Zavadil adopted his responses to specifications 1 and 2. He also asserted that he truthfully answered all questions asked of him at the investigative hearing and that his brief on legal ethics was drafted in accordance with the Board's instructions. The Board found the allegations in specification 3 were proven and were collectively disqualifying.

Specification 4 concerns question 12.a on the Bar application. That question asks whether the applicant has ever been discharged or suspended from any employment. The Board alleged that on March 30, 2009, while still working as a police officer, Zavadil received a memorandum (March 2009 memorandum) from the Chief of Police, notifying him that he was relieved from patrol duty with pay, effective immediately. The memorandum provided that while relieved of duty, Zavadil was not permitted to take any official police action, work any off-duty employment, wear a police uniform, be armed, or operate a police vehicle. The Board alleged that Zavadil committed a material omission in the application process by failing to timely amend his answer to question 12.a to disclose that he had been suspended from duty with pay. In his answer to the specifications, Zavadil argued that a “relief of duty” is not considered an employment disciplinary action. After considering the evidence presented at the formal hearing, the Board found that the allegations in specification 4 were proven and were collectively disqualifying.

The final specification, specification 5, concerns the application amendment filed by Zavadil on May 5, 2010, after the Board initiated these proceedings to revoke his admission. In the amendment to application, Zavadil stated: “In an effort to make complete and full disclosure, of events which occurred prior to my admission to the FL Bar, I wish of my own volition, to update question 16.b. of my application [to disclose the Complaint for Injunctive and Declaratory Relief in the circuit court].” (Emphasis added.) The Board alleged that the emphasized statement is false, misleading, or lacking in candor, in that Zavadil only filed the amendment in response to the Board's April 2010 notice to appear for an investigative hearing pursuant to Bar Admissions Rule 5–14. In his answer to the specifications, Zavadil denied that he was compelled by the Board to amend his Bar application. However, the Board determined that the allegations in specification 5 were proven and were collectively disqualifying.

Also in his answer to the specifications, Zavadil pleaded the affirmative...