The Fla. Bar v. Jacobs

• Docket Number: SC2020-1602
• Decision Date: 08 June 2023
• Parties: THE FLORIDA BAR, Complainant, v. BRUCE JACOBS, Respondent.
• Court: Florida Supreme Court

1

THE FLORIDA BAR, Complainant, v. BRUCE JACOBS, Respondent.

No. SC2020-1602

Supreme Court of Florida

June 8, 2023

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS SUSPENSION.

Original Proceeding - The Florida Bar

Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, and Tonya L. Avery, Bar Counsel The Florida Bar, Miami, Florida; and Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, Florida, for Complainant

Bruce Jacobs of Jacobs Legal, PLLC, pro se, Miami, Florida, for Respondent

PER CURIAM.

Respondent Bruce Jacobs, seeks review of a referee's amended report recommending that Jacobs be found guilty of multiple violations of Rule Regulating The Florida Bar (Bar Rule) 4-8.2(a) (Impugning Qualifications and Integrity of Judges or Other Officers) and recommending that he be suspended from the practice of law for 90 days.^[1] Jacobs challenges the referee's findings of fact and recommendations as to guilt, arguing that while he did impugn the integrity of members of the judiciary, his statements were neither dishonest nor made with reckless disregard for the truth and therefore did not violate Bar Rule 4-8.2(a). The Bar asks this Court to approve the referee's findings of fact and recommendations as to guilt but challenges the referee's recommendation as to discipline, urging this Court to instead impose a two-year rehabilitative suspension. For the reasons discussed below, we approve the referee's findings of fact and recommendations as to guilt, but we disapprove the referee's recommendation as to discipline and instead impose a 91-day rehabilitative suspension.

BACKGROUND

Jacobs a veteran foreclosure defense attorney, has developed a set of legal theories that he has often argued on behalf of clients. His theories are based on the premise that a party seeking to foreclose on a defaulted mortgage should not be able to collect an equitable remedy if it came to the court with unclean hands. More specifically, Jacobs' theory is that in cases where a homeowner who borrowed money to purchase a home is now in default on payments, the holder of the note should not be allowed to enforce the note or foreclose on the mortgage if any faulty or defective assignments occurred after the closing on the note and mortgage.

Relevant to this case, Jacobs attempted to assert his theory in three separate foreclosure proceedings below, but his arguments were rejected. Jacobs then filed in those cases motions that included negative comments and accusations about courts and specific judges. This resulted in the Bar filing a three-count complaint against Jacobs alleging that he had impugned the qualifications or integrity of members of the judiciary. The Bar complaint was referred to a referee, who held hearings on both guilt and discipline and then submitted an amended report with the following findings and recommendations.

Count I

Jacobs represented the defendant in a foreclosure action in HSBC Bank USA, National Association v. Aquasol Condominium Association, Inc., No. 2013-29724-CA-01 (Fla. 11th Cir. Ct.). After the circuit court entered a final judgment of foreclosure in favor of the plaintiff bank, Jacobs filed an appeal in the Third District Court of Appeal. Jacobs argued that the bank had no standing to foreclose because it was not both holder and owner of the note. Although Jacobs was aware of binding Third District case law stating that a party has standing in a foreclosure suit if it is either the holder or the owner of the note, he did not cite this authority in his appeal.

When the Third District affirmed the judgment of foreclosure, Jacobs moved for rehearing en banc. In that motion, Jacobs made "numerous comments impugning the integrity of the judiciary," including:

This Court's insistence on ignoring established Florida Supreme Court law to benefit bad corporate citizens is certain to cause chaos.

....

Ownership controls the right to enforce the mortgage. This Court is acting illegally by instructing the law is otherwise.

....

This is a biblical, spiritual journey for me. I have faith I will be protected because I am acting so clearly within the law and this Honorable Court is not.

....

Banks have all the resources to do it right but made business decisions to do it fraudulently. It's as if they knew the Courts would always let them get away with it. . . . I call those judges traitors to the constitution.

....

I've had to warn [clients] this broken system is riddled with fraud and perjury. The judges decide the rule of law, and whether any rule of law exists. Maybe the rule of law only applies to the rest of us.

....

Any court that protects the monopoly over the rule of law is a traitor to the constitution and should be tried for treason.

After issuing an order directing Jacobs to show cause why he should not be sanctioned, the Third District issued an order declaring that Jacobs had filed a frivolous bad faith motion and had impugned the qualifications or integrity of the judiciary in violation of Florida Rule of Appellate Procedure 9.410(a). The Third District referred the matter to the Bar for consideration of discipline. Aquasol Condo. Ass'n, Inc. v. HSBC Bank USA, Nat'l Ass'n, 43 Fla.L.Weekly D2699 (Fla. 3d DCA Dec. 5, 2018).

Count II

Jacobs represented the defendant in a foreclosure action in Bank of New York Mellon v. Atkin, No. 2009-87096-CA-01 (Fla. 11th Cir. Ct.). During the proceedings, Bank of America, a named subject in matters raised in that case, filed a petition for writ of prohibition in the Third District, which prompted a response from Jacobs along with a motion to disqualify the Third District. See Bank of Am., N.A. v. Atkin, 303 So.3d 583, 586 (Fla. 3d DCA 2018). In his response to the bank's petition, Jacobs made several negative comments about the Third District and circuit court judges, including:

[T]his Court violated the standard of review, ignored Florida Supreme Court precedent, and falsified the facts in contradiction to the record. ....

The impartiality of this Court is objectively questioned and it cannot issue a ruling with integrity in this case.

....

A named circuit court judge acted with "blatant disregard for the rule of law and the client's constitutional rights" in an unrelated case and was upheld by this Court.

....

A different, unnamed circuit court judge changed a favorable ruling because opposing counsel "threw a fundraiser for the new judge who rotated into the division."

The Third District concluded that Jacobs' statements, together with statements he made in a brief filed in the United States Supreme Court, impugned the qualifications and/or integrity of members of the judiciary. After issuing an order to show cause, the Third District entered an opinion referring Jacobs to the Bar for consideration of discipline. Bank of Am., N.A. v. Atkin, 271 So.3d 145, 147 (Fla. 3d DCA 2019).

Count III

Jacobs represented the defendant in a foreclosure action in Bank of New York Mellon v. Atkin. During the proceedings Jacobs filed a motion for judicial disqualification in which he made several negative comments about the circuit court and about the presiding circuit court judge, Judge Michael Hanzman, including:

Judge Hanzman Has Repeatedly Ignored Obvious Fraud on the Court by Large Financial Institutions in Foreclosures While Abusing His Power to Chill Defense Counsel's Zealous Advocacy Against Those Financial Institutions[.]

....

Judge Hanzman has made repeated statements on the record and off the record that reflect his indifference to large financial institutions presenting false evidence to the court to obtain the equitable relief of foreclosure. His personal finances appear to be heavily invested in the financial services sector which gives Mr. Atkin a reasonable fear Judge Hanzman will not be fair and impartial because it will negatively impact his significant personal financial holdings.

....

[The court] has allowed the most rich and powerful segment of our society, the financial sector in which he is personally heavily invested in, to engage in felony misconduct and walk away without any punishment ....

The circuit court dismissed Jacobs' motion to disqualify for being untimely and legally insufficient. Later, in an order denying a motion for attorney's fees, Judge Hanzman noted Jacobs' repeated failure to cite adverse controlling authority and mentioned Jacobs' "scurrilous motion to disqualify this Court." Judge Hanzman declared that Jacobs "is unrepentant, undeterred, and continues to engage in the exact same behavior he was sanctioned for and which is now presumably being investigated by the Bar."

The referee ultimately found as to all three counts that Jacobs made statements that impugned the qualifications or integrity of members of the judiciary and that he did so intentionally as a litigation tactic to obtain relief when he was unable to obtain relief without such attacks. The referee recognized that attorneys have an obligation to advocate zealously on behalf of clients but found that Jacobs' actions crossed a line into name-calling and violated Bar Rule 4-8.2(a). The referee further found that Jacobs did not provide an objectively reasonable factual basis for making any of his statements impugning the integrity of the judiciary.

Jacobs asserted a selective prosecution defense in the disciplinary proceeding, but the referee rejected the defense, finding that the presented evidence did not establish the elements of selective prosecution articulated in Thompson v. Florida Bar, 526 F.Supp.2d 1264 (S.D. Fla. 2007). The referee explained that the conduct of other attorneys described by...