The Florida Bar v. Gross, No. SC01-1403
| Decision Date | 03 March 2005 |
| Docket Number | No. SC02-1592, No. SC03-210., No. SC01-1403, No. SC01-2737 |
| Citation | 896 So.2d 742 |
| Parties | THE FLORIDA BAR, Complainant, v. Lee Howard GROSS, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL, and William Mulligan, Bar Counsel, Miami, FL, for Complainant.
Richard B. Marx and O. Frank Valladares of Richard B. Marx and Associates, Miami, FL, and Kristi F. Kassebaum of Manto and Kassebaum, Miami, FL, for Respondent.
We have for review a referee's report regarding alleged ethical breaches by attorney Lee Howard Gross. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, Lee Howard Gross is disbarred from the practice of law in the State of Florida, effective, nunc pro tunc, May 21, 2002.
The Florida Bar filed four complaints against respondent Lee Howard Gross, alleging numerous counts of misconduct including trust account misappropriations of over $100,000 of client funds entrusted to him, the failure to comply with a Florida Bar subpoena, the failure to defend a client in a lawsuit which resulted in a $7500 judgment against his client, the failure to communicate with this client about the suit, the forgery of a judge's signature on certain orders, the forgery of a client's signature on a written plea of guilt, the forgery of a client's signature on a check, mortgage fraud, the failure to disclose one of his trust accounts to The Florida Bar, and the failure to repay all of the trust account misappropriations. Since Gross stipulated to most of the factual allegations within the four complaints, the referee was left with making recommendations regarding which ethical violations occurred based on these stipulations and the appropriate discipline.
After a multiple-day hearing where Gross presented substantial evidence regarding a serious drug and alcohol addiction and his rehabilitation from this addiction, the referee issued an amended report recommending that Lee be found guilty of violating the following Rules Regulating The Florida Bar: 3-4.3 (a lawyer shall not commit any act that is unlawful or contrary to honesty and justice); 4-1.1 (a lawyer shall provide competent representation to a client); 4-1.2(a) (); 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4 (a lawyer shall keep clients reasonably informed about the status of matters); 4-1.5 (a lawyer shall abide by certain rules regulating fees for legal services); 4-1.15(a) (); 4-1.15(b) (); 4-1.15(d) (); 4-1.16(d) (); 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interest of the client); 4-3.3(a) (); 4-3.4(b) (); 4-4.1 (a lawyer must be truthful in statements to others); 4-8.4(a) (); 4-8.4(b) (); 4-8.4(c) (); rule 5-1.1(a) (); 5-1.1(c) (); 5-1.1(d) (); 5-1.1(g) (); 5-1.2(b) (); and 5-1.2(c) ().1
In turning to the recommended discipline, the referee found as follows:
The referee can accept Respondent's argument that his misconduct was largely the product of drug and alcohol addiction. He was a competent and talented attorney before falling victim to substance abuse. Further, the referee agrees that the Respondent is remorseful for his misdeeds. He has signed a contract with Florida Lawyers Assistance, Inc. and has engaged in a course of drug and alcohol treatment.
After considering the aggravation and mitigation, however, the referee found that the range of misconduct and the number of incidents of misconduct was simply too broad to permit suspension and thus recommended that Gross be disbarred for a period of five years. The recommendation further provided that Gross's disbarment should be nunc pro tunc to May 21, 2002, the date this Court suspended Gross from practice pursuant to rule 3-5.2 of the Rules Regulating The Florida Bar. Gross filed a petition for review, challenging the referee's findings and recommendations as they pertained to the recommended discipline.
Neither party challenges the findings of fact or recommendations as to guilt. Accordingly, we approve the referee's recommendation that Gross be found guilty of violating the above rules without further discussion.
As to the recommended discipline, Gross presented testimony from experts and other witnesses who testified as to Gross's addiction and to his rehabilitation, which did not begin until after these proceedings were well under way.2 Based on the evidence presented in the hearing, the referee found the following mitigating factors were present: a physical or mental disability or impairment in that Gross suffered from a severe addiction, remorse, and rehabilitation.3 As to the aggravating factors, the referee's report did not clearly state that any aggravating factors were found, and this Court will not presume certain aggravating factors were found by a referee unless the report specifically states them.4 After balancing all of the relevant factors, the referee recommended disbarment. Gross objects to the recommended discipline, contending that based on the significant mitigating evidence presented, a long-term suspension is a sufficient sanction.5 We disagree.
When reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because this Court has the ultimate responsibility to determine the appropriate sanction. Florida Bar v. McFall, 863 So.2d 303, 307 (Fla.2003). In determining a proper sanction, the Court will take into consideration the three purposes of lawyer discipline:
First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. Second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations.
Florida Bar v. Lord, 433 So.2d 983, 986 (Fla.1983) (emphasis omitted). As a general rule, when evaluating a referee's recommended discipline, the Court will not second-guess a referee's recommended discipline as long as that discipline (1) is authorized under the Florida Standards for Imposing Lawyer Sanctions ("the Standards") and (2) has a reasonable basis in existing case law. McFall, 863 So.2d at 307. As detailed more below, not only does the referee's recommended discipline of disbarment have a reasonable basis in the Standards and in existing case law, we find that any less severe discipline (including the long-term suspension suggested by Gross) is insufficient to fulfill the threefold purpose of attorney discipline.
As both parties recognize, disbarment is the presumed discipline for the misconduct which occurred in this case. In fact, Gross committed numerous acts of misconduct, most of which individually would be sufficient to justify disbarment, including the numerous client trust account misappropriations, the failure to defend a client in a lawsuit, the forgery of a judge's signature on certain orders, the forgery of a client's signature on a written plea of guilt, and the forgery of a client's signature on a check. See Fla. Stds. Imposing Law. Sancs. 4.11 ( disbarment is the presumed discipline when "a lawyer intentionally or knowingly converts client property regardless of injury"); 4.41(c) (); 5.11(f) (); 6.11 ( disbarment is the presumed discipline when a lawyer "with the intent to deceive the court, knowingly makes a false statement or submits a false document").
Moreover, while it is difficult to find a case that...
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