The Florida Bar v. Rayman
| Decision Date | 22 April 1970 |
| Docket Number | No. 37506,37506 |
| Citation | 238 So.2d 594 |
| Parties | THE FLORIDA BAR, Complainant, v. Morey A. RAYMAN and John H. Duhig, Respondents. |
| Court | Florida Supreme Court |
L. Norton Preddy, Miami, for The Florida Bar, complainant.
Lee Weissenborn, of Weinstein, Weissenborn & Burr, Miami, for respondents.
This case is before the Court on petition of Morey A. Rayman and John H. Duhig, respondents, to review the judgment entered by the Board of Governors of The Florida Bar on June 12, 1968. Said judgment reads as follows:
'This cause came on for review and consideration by the Board of Governors of The Florida Bar upon the report of the referee and record of proceedings before him.
'ORDERED and ADJUDGED that the respondents, Morey A. Rayman and John H. Duhig, be disbarred and that they pay the costs of these proceedings in the amount of $1,060.50.'
Respondents contend that the Board of Governors erroneously adopted the findings and recommendations of the referee on several grounds. First, it is contended that the evidence adduced was insufficient to support the charges made against them. Secondly, it is contended that the proceedings before the referee deprived the respondents of basic rights protected by both the State and Federal Constitutions.
The constitutional issues advanced relate to the validity of Integration Rule 11.06(7) of The Florida Bar, 32 F.S.A. in view of the United States Supreme Court's decision in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), holding that lawyers are no less entitled to self-incrimination protection in disbarment proceedings than in any other civil or criminal action; and, therefore, refusal to testify in a disciplinary proceeding cannot be ground for invoking the sanction of disbarment. The cited rule requires an attorney to appear and give testimony when subpoenaed on pain of being held in contempt of court. The other constitutional issue is based on the United States Supreme Court's decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in which the court reversed a conviction predicated upon evidence gained through electronic eavesdropping conducted by federal agents outside a phone booth from which that defendant placed his calls. The Katz argument is directed at that portion of the evidence in the instant case which consists of a tape recording surreptitiously made of a conversation between the complaining witness and the respondent Duhig.
While we take note of these serious constitutional questions, we find it unnecessary to rest our decision upon their determination since this proceeding can be disposed of on the nonconstitutional ground centering on the claim that the evidence is insufficient to sustain the charges. The well established rule requiring disposition of a case without adjudicating the constitutional questions whenever possible, see Clay v. Sun Insurance Office, Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960), is equally applicable in disciplinary proceedings.
An extensive evidentiary hearing was conducted during which both respondents steadfastly denied 1 both the purpose and the receipt of the funds claimed to have been given them by the complaining witness, Alex Adler, brother of the decedent. Instead both respondents contend that these charges stem from confusion in the elderly complainant's mind as to the amount of money he could expect to heir from his deceased brother's estate since the round figures involved are within the range of his share of the estate had the court held that the decedent died intestate.
The respondents argue that the evidence in the record when taken in its entirety does not constitute sufficient proof of the acts and motives ascribed to them to justify the judgment against them. The inconsistencies and contradictions found by the court in the evidence relating to crucial questions of fact require us to agree. We recognize that a disciplinary proceeding against an attorney is not a criminal trial; and, therefore, the quantum of proof necessary to disbar need not be the classical 'beyond and to the exclusion of a reasonable doubt' standard. Yet the quantum of proof suggested by a mere 'preponderance of the evidence' as is the case in ordinary civil proceedings does not seem to wholly satisfy the requirements of a proceeding such as this. In Zachary v. State, 53 Fla. 94, 43 So. 925 (1907), this court reversed a judgment of disbarment entered by a circuit court holding that where the evidence is conflicting 'there must be a clear preponderance against (the accused attorney)'. The trial judge in Zachary had held in the judgment of disbarment that the allegations were sustained by a 'preponderance of the evidence', yet on appellate review it was held that the quantum or standard of proof was something more than 'preponderance'. More recently in State ex rel. Florida Bar v. Bass (1958) 106 So.2d 77, we stated that the power to disbar should be exercised only in a clear case for weighty reasons and on clear proof. In Bass, the court discussing the evidence of deceit charged to the respondent reversed stating that the evidence was not 'sufficiently clear and convincing to justify the Board in overturning the findings of fact of the Referee made on the basis of conflicting evidence' at page 78. In State ex rel. Florida Bar v. Junkin, 89 So.2d 481 (Fla.1956), we held that evasive and inconclusive evidence which was given by the complaining witness was insufficient to sustain the disbarnment judgment recommended by the Referee.
Our review of the standard of proof required in other states in disciplinary proceedings discloses a frequent requirement of something more than a simple preponderance of evidence standard as found in civil practice yet not...
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D.J.S., In Interest of
...the standard applied in criminal cases, and that it is evidence free of substantial doubts or inconsistencies. The Florida Bar v. Rayman, 238 So.2d 594, 596 (Fla.1970). McCormick, in his work on evidence, 11 states that the imposition of a higher standard of proof in certain situations "see......
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State ex rel. Turner v. Earle
...re Kelly (Fla.1970), 238 So.2d 565.2 Cf. 3 Fla.Jur., Attorneys at Law § 99. A jury's acquittal may not be a defense.3 Cf. The Florida Bar v. Rayman (Fal.1970), 238 So.2d 594.4 See dissent in In re Kelly, 283 So.2d, p. 574 et seq.5 See dissent in Maloney v. Kirk (Fla.1968), 212 So.2d 609, pa......
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State v. Graham, 69--681
...1023.11 304 U.S. at 469, 58 S.Ct. 1025.12 Florida East Coast Ry. Co. v. Thompson, 1927, 93 Fla. 30, 111 So. 525.13 The Florida Bar v. Rayman, Fla.1970, 238 So.2d 594, 596.14 In Reynolds v. State, Fla.App.1969, 222 So.2d 246, our Third District Court of Appeal used the phrase, 'substantial c......
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Palmer, Matter of
...rel. Dunbar v. Weinstein, 135 Colo. 541, 312 P.2d 1018 (1957) (Substantial, clear convincing and satisfactory); Florida, Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970) (Mere preponderance is not sufficient); Georgia, Cushway v. State Bar, 120 Ga.App. 371, 170 S.E.2d 732 (1969), Cert. denie......
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Agency discipline proceedings: the preponderance of clear and convincing evidence.
...also Razatos v. Colorado Sup. Ct., 746 F.2d 1429 (10th Cir. 1984), cert. denied, 471 U.S. 1016 (1985). See also Florida Bar v. Rayman, 238 So. 2d 594 (Flat 19700); State ex. Rel. Florida Bar v. Bass, 106 So. 2d 77 (8) State v. Addington, 588 S.W.2d 569, 570 (Text 1979). (9) United States v.......