The Florida Bar v. Forrester

• Decision Date: 22 November 2005
• Docket Number: No. SC02-1752.,No. SC01-1819.,SC01-1819.,SC02-1752.
• Citation: 916 So.2d 647
• Parties: THE FLORIDA BAR, Complainant, v. Geneva Carol FORRESTER, Respondent. The Florida Bar, Complainant, v. Geneva Carol Forrester, Respondent.
• Court: Florida Supreme Court

916 So.2d 647

THE FLORIDA BAR, Complainant, v. Geneva Carol FORRESTER, Respondent.

The Florida Bar, Complainant, v. Geneva Carol Forrester, Respondent.

No. SC01-1819.

No. SC02-1752.

Supreme Court of Florida.

September 8, 2005.

Rehearing Denied November 22, 2005.

John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel Tallahassee, FL, Carlos Leon, Staff Counsel, Miami, FL, and William Lance Thompson, Assistant Staff Counsel, Tampa, FL, for Complainant.

Geneva Carol Forrester, St. Petersburg, FL, for Respondent.

PER CURIAM.

We have for review the referee's reports in case numbers SC01-1819 and SC02-1752, regarding alleged ethical breaches by Geneva Carol Forrester. We have jurisdiction. See art. V, § 15, Fla. Const. We have consolidated the two cases for review, and for the reasons explained below, we disbar respondent Forrester from the practice of law in the State of Florida.

Case Number SC01-1819

On August 20, 2001, the Bar filed a complaint against respondent Forrester alleging that she had knowingly made false statements in two pleadings submitted to a court and had also made statements in those pleadings which were disparaging and humiliating to the person about whom the statements were made. In a motion filed on February 4, 2000, Forrester stated in boldface type that the person in question was a "child molester and stalked his daughter" and that he was "recently convicted of aggravated stalking in Florida." In a separate motion also filed on February 4, 2000, she made similar statements and also referred to the person as a "pedophile and convicted felon." The Bar's complaint alleged that Forrester knew that her statements regarding the felony conviction were false and that she knowingly, or through callous indifference, made statements which were disparaging and humiliating when she called the person a stalker, a convicted felon, and a child molester. The Bar alleged that Forrester's statements violated rules 4-3.3(a) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis) of the Rules Regulating the Florida Bar.

After a final hearing, the referee issued his report and recommendation. The referee found that on December 1, 1998, Forrester had been advised that the felony charge against the person in question had been reduced to a misdemeanor and adjudication was withheld. Further, the referee found that it was clear that Forrester was aware of this at that time because on December 2, 1998, she made a specific inquiry of the clerk's office for verification of the conviction and sentence. The referee found that Forrester's statements that the person was a convicted felon, at the very least, exhibited callous indifference; accordingly, he recommended that Forrester be found guilty of violating only rule 4-8.4(d). As for discipline, the referee recommended that Forrester receive a public reprimand.

Case Number SC02-1752

By order of this Court dated May 16, 2002, respondent Forrester was placed on a sixty-day suspension in Florida Bar v. Forrester, 818 So.2d 477 (Fla.2002). On August 8, 2002, The Florida Bar filed a petition for an order to show cause why Forrester should not be held in contempt and a petition for an interim suspension alleging that Forrester had violated the suspension order by practicing law while suspended. Forrester filed a written response and a motion to dismiss the petition for interim suspension. On November 20 2002, the Court denied Forrester's motion to dismiss, granted the Bar's petition for interim suspension, and ordered Forrester to show cause why she should not be held in contempt and disbarred for practicing law while under suspension. The Court also appointed a referee to conduct an expedited hearing and submit a report and recommendation to the Court.

After a final hearing, the referee filed his report making the following findings of fact. After receiving the May 16, 2002, suspension order in Florida Bar v. Forrester, 818 So.2d 477 (Fla.2002), Forrester informed all of her clients of her suspension, as required, and attempted to refer her pending cases to other lawyers or to finally resolve the cases before the effective date of the suspension, June 16, 2002. However, as that date approached, Forrester realized that a few of her clients' cases had not been resolved or successfully referred to other attorneys. Accordingly, in June she interviewed and hired an associate. The associate was a young, inexperienced recent law school graduate who had become licensed to practice in April 2002. The associate's prior legal experience consisted of several law clerk positions with private and governmental law offices. He had never functioned as a licensed attorney prior to his hiring by Forrester.

During his employment, at Forrester's direction, the associate drafted pleadings and letters and met with present and prospective clients in person and by telephone. As to pleadings and letters, after Forrester reviewed the drafts and made corrections, a final pleading or letter would be prepared that the associate would sign. After Forrester's review and final approval, the signed pleading or letter would be mailed by Forrester's legal assistant. Essentially, nothing left the office without Forrester's approval.

Although Forrester did not personally meet with any prospective or existing clients during the course of her suspension, she spoke with one existing client on the telephone several times. In her deposition, the client stated that Forrester informed her of the suspension and that the telephone communications which occurred involved business, not legal, advice. Forrester billed the client at her "business consultant" rate of $350.00 per hour, the same rate she bills as an attorney.

The referee's report also found that once Forrester realized the Bar was investigating her activities during the suspension, Forrester asked her associate to sign a letter designed to constitute the notice of employment that is required by Rule Regulating the Florida Bar 3-6.1(c) for suspended, disbarred, and resigned attorneys who work in a law office. The proposed letter indicated that Forrester was employed by the associate as a paralegal. The associate refused to sign the letter Forrester presented and instead signed a revised letter which deleted the references to Forrester's employment as a paralegal. The same date he signed the aforementioned letter, the associate resigned his position of employment with Forrester.

Based on these findings, the referee found Forrester guilty of intentionally and willfully violating the May 16, 2002, suspension order. Relying upon Florida Bar v. Thomson, 310 So.2d 300 (Fla.1975), the referee reasoned that while a suspended attorney may work as a law clerk, investigator, or paralegal, employment in such a capacity contemplates supervision of the suspended attorney by a member of the Bar in good standing. He determined that here, Forrester was not supervised. To the contrary, she actively supervised the young attorney she hired to ostensibly maintain her law office during the suspension. As a result of her violation of the suspension order, the referee recommended that Forrester be found guilty of contempt and be suspended for one year.

I. Referee's Findings of Fact and Recommendations as to Guilt.

In case number SC01-1819, having considered the arguments of the parties, we approve the referee's findings of fact and recommendations as to guilt without further discussion.

In case number SC02-1752, the Bar first challenges the standard of proof applied by the referee in the contempt proceedings. In his report, the referee expressed some uncertainty as to the applicable standard of proof, and in an abundance of caution, chose to apply the "beyond a reasonable doubt" standard applicable to indirect criminal contempt proceedings. The Bar contends that proceedings for contempt of an order of this Court suspending an attorney are simply a further action on the subject attorney's license to practice law and, as such, are subject only to the clear and convincing evidence standard applicable to bar proceedings generally.

As this Court recognized in Parisi v. Broward County, 769 So.2d 359 (Fla.2000), contempt sanctions are broadly categorized as either civil or criminal, and the distinction between them "often turns on the `character and purpose' of the sanctions involved." Id. at 364 (quoting Int'l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)). The purpose of criminal contempt proceedings is "`to vindicate the authority of the court or to punish an intentional violation of an order of the court.' On the other hand, a contempt sanction is considered civil if it `is remedial, and for the benefit of the complainant.'" Id. (citation omitted) (quoting Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985), and Bagwell, 512 U.S. at 827, 114 S.Ct. 2552). Additionally, the hallmark of civil contempt is a purge provision allowing the contemnor to avoid the sanction imposed by complying with the court order. Id. at 365.

The purpose of contempt proceedings brought against an attorney for violation of an existing disciplinary order is to punish the offending attorney and to vindicate the authority of this Court to discipline Florida attorneys. The purpose is not remedial in nature or primarily for the purpose of coercing the disciplined attorney to comply, nor can the contemnor purge the contempt through compliance with the Court's order....