The Fla. BAR V. RATINER
| Decision Date | 24 June 2010 |
| Docket Number | No. SC08-689,SC08-689 |
| Parties | THE FLORIDA BAR, Complainant, v. ROBERT JOSEPH RATINER, Respondent. |
| Court | United States State Supreme Court of Florida |
John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, Florida, and Randi Klyman Lazarus, Bar Counsel, The Florida Bar, Miami, Florida, for Complainant
Kevin P. Tynan of Richardson and Tynan, PLC, Tamarac, Florida, for Respondent
We have for review a referee's report recommending that respondent Robert Joseph Ratiner, a member of The Florida Bar since 1990, be found guilty of professional misconduct and disciplined. We have jurisdiction. See art. V, § 15, Fla. Const.
For the reasons explained below, we approve the referee's findings of fact and recommendations as to guilt. We also approve the mitigating factors and the aggravating factors found by the referee. With regard to discipline, however, we disapprove the referee's alternative recommendations of disbarment or a two-yearsuspension. Instead, we impose a public reprimand and a suspension of sixty days, followed by two years' probation with certain conditions.
The Florida Bar filed a complaint alleging ethical violations and seeking discipline against respondent, who is plaintiffs' counsel in a civil suit against E.I. DuPont de Nemours & Co., Inc. (DuPont) regarding alleged harm to plaintiffs from their exposure to Benlate. The Bar sought discipline for alleged misconduct during a deposition of a representative of DuPont that was held in Wilmington, Delaware, during May 14-18, 2007. The Bar's complaint charged respondent with violations of the following Rules Regulating the Florida Bar: 3-4.3 (Misconduct and Minor Misconduct); 3-4.4 (Criminal Misconduct); 4-3.5 (Disruption of a Tribunal); 4-4.4(a) (); 4-8.4(a) (); 4-8.4(b) (); 4-8.4(d) ().
After the filing of the complaint, the matter was referred to a referee. The Bar presented as evidence to the referee, without objection from respondent, the video recording and transcript of the entire five-day deposition. The Bar also presented as evidence to the referee, again without objection from respondent, information about respondent's 2006 diversion to the Bar's practice and professionalism enhancement program to resolve a grievance previously filed against him. The referee possessed all of this evidence prior to conducting the summary judgment hearing. The parties then filed respective motions for partial summary judgment on the issue of guilt. At the hearing on the motions for partial summary judgment, the Bar clarified that its complaint was solely based on alleged misconduct that was captured in a three-minute video clip involving a confrontation between respondent and opposing counsel with regard to respondent's personal laptop computer ("laptop incident"). The Bar affirmatively advised the referee that it was limiting its complaint to the laptop incident and did not intend to address any other video recordings or portions of the transcript fromthe five-day deposition that it submitted to the referee. The Bar advised the referee of the limitation of the complaint because the grievance committee had previously considered other instances of alleged misconduct by respondent during the May 2007 deposition and had found no probable cause for finding professional violations except for the laptop incident.
After the hearing, the referee granted portions of the Bar's motion for partial summary judgment, basing his findings of fact and conclusions of law on the Bar's motion, its attachments, and the video clip of the laptop incident. The referee recommended that respondent be found guilty of violating rules 3-4.3, 4-3.5, 4-4.4(a), 4-8.4(a), and 4-8.4(d). The referee made the following findings of fact in support of his recommendation of guilt.===
During the course of the deposition, [opposing counsel] attempted to place an exhibit sticker on the Respondent's laptop computer.
Just prior to [opposing counsel's] attempting to place the exhibit sticker on the computer, the Respondent was standing up and speaking forcefully towards [opposing counsel].
As soon as [opposing counsel] attempted to place the exhibit sticker on the computer, the Respondent very briefly touched [opposing counsel's] hand, then attempted to run around the table towards [him].
Additionally, the [deponent] expressed that she was very scared as a result of the Respondent's conduct.
The Respondent's own consultant had to attempt to calm the Respondent down and specifically told the Respondent to "take a Xanax."
Further, while the Respondent was acting as described above, the court reporter stated, "I can't work like this!"
Respondent then proceeded to forcefully lean over the deposition table, lambast [opposing counsel] in a tirade while proceeding to tear up the evidence sticker, wad it up and flick or toss it in the direction of [opposing counsel].
The Respondent's conduct during the deposition was outrageous, disruptive, and intimidating to the witness, opposing counsel, and other persons present during the deposition and otherwise prejudicial to the administration of justice.@@@
The referee also granted portions of respondent's motion for partial summary judgment, finding that respondent did not commit any criminal acts during the laptop incident and thus concluded that respondent was not guilty of violating rules 3-4.4 and 4-8.4(b).
Nearly a month after the initial hearing, the referee held a sanction hearing. The referee heard testimony from respondent, his trial consultant, and one of his law partners about respondent's character and good reputation. The referee also considered affidavits filed by the deponent and the court reporter present during the laptop incident.
After considering the above, the referee ultimately made two alternative recommendations as to discipline. As his primary recommendation, the referee recommends that respondent be disbarred. As to this recommendation, the referee stated:
I recognize that disbarment is an extreme sanction.... The practice of law is a privilege. The Supreme Court of Florida has thepower to revoke the license of an attorney whose unfitness to practice law has been duly established. The Florida Bar, in this case before me, has established that unfitness.
(Citation omitted.)
In making this recommendation, the referee found and considered the following aggravating and mitigating circumstances. In aggravation, the referee found that respondent (1) exhibited a pattern of misconduct, (2) committed multiple offenses, (3) refused to acknowledge the wrongful nature of his conduct, and (4) had substantial experience in the practice of law. The aggravating factor of a pattern of misconduct was based in part on various acts of the respondent during the 2007 deposition, for which the grievance committee found no probable cause and for which the respondent was not charged. Those acts included the utterance by the respondent of a series of belligerent, abusive, and vulgar comments in the course of the 2007 deposition. The pattern-of-misconduct aggravating factor was also based on the conduct underlying a grievance committee report of diversion filed in September 2006. That report related in part to abusive conduct by the respondent at depositions in a case beginning in 2002.
In mitigation, the referee found that respondent had (1) an absence of a prior disciplinary history, (2) an absence of a dishonest motive, and (3) emotional problems. The referee also found as additional mitigation the fact that respondent "appear[ed] to have an intelligent understanding of the law, as well as the facts surrounding the various cases he [was] prosecuting on behalf of his clients."
As an alternative to the recommendation of disbarment, the referee recommends "Plan B" a two-year suspension with conditions. In making this alternative recommendation, the referee stated:
Additionally, the referee recommends that the following conditions should accompany any imposed discipline: (1) a requirement that respondent attend mental health counseling to address anger management; (2) a requirement that future depositions conducted or attended by respondent be videotaped or that he be required to have co-counsel present at such depositions; and (3) a requirement that respondent write letters of apology to the persons involved in the May 2007 deposition the deponent, all court reporters, and the videographer.
Respondent challenges whether he should be disbarred based on his conduct during a single deposition when he has no prior disciplinary history. Respondent initially argued that public reprimand is the appropriate discipline in this case. However, at the...
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