The Florida Bar v. Smith
| Citation | 866 So.2d 41 |
| Decision Date | 22 January 2004 |
| Docket Number | No. SC02-111.,SC02-111. |
| Parties | THE FLORIDA BAR, Complainant, v. Jeanette Elizabeth SMITH, Respondent. |
| Court | United States State Supreme Court of Florida |
John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Carlos Alberto Leon, Bar Counsel, Miami, FL, for Complainant.
Richard B. Marx of Richard B. Marx & Associates, Miami, FL, for Respondent.
We have for review a referee's report regarding alleged ethical breaches by Jeanette Elizabeth Smith. We have jurisdiction. See art. V, § 15, Fla. Const.
The Florida Bar filed a three-count disciplinary complaint against Smith alleging that she violated numerous Rules Regulating the Florida Bar by negligently handling two Immigration and Naturalization Service (INS) matters, engaging in improper trust accounting practices, and demonstrating a lack of financial responsibility.
After a hearing, the referee issued a report in which she made the following findings and recommendations:
Smith is a sole practitioner whose primary practice consists of immigration and entertainment matters. She devotes her practice to helping society's less fortunate members. Witnesses testified regarding Smith's selfless dedication to helping the indigent and vulnerable. Also, witnesses praised her integrity and stated that she is "not interested in making money."
Beginning in the late summer and fall of 1999, Smith suffered from several medical problems. Due to low blood pressure, dehydration, and exhaustion, she eventually collapsed and required emergency treatment twice in March and August, 2000, and was repeatedly on bed rest and intravenous fluids for several weeks at a time. During this period she experienced dizziness and disorientation and became progressively weaker. In December 2000, she suffered another medical crisis while pregnant. After Smith was taken to an emergency room in extreme pain, doctors determined that the fetus had been dead for several weeks. Doctors gave Smith medication to induce labor and to avoid a surgical abortion, but she subsequently hemorrhaged and underwent an emergency procedure in January 2001. Smith admitted that she was not making the best decisions during this period.
Count I. Smith was retained to represent Mr. and Mrs. Munim in an immigration matter. The Munims provided all the necessary documents and completed payment in the amount of $4500 to Smith by November 16, 1999. Later that November, Smith requested an additional payment of $1665 for the "residency filing fees" that were required with submission of the labor certification packet. The Munims paid this additional amount on November 29, 1999.
On December 1, 1999, Smith deposited the Munims' $1665 check into her operating account rather than her trust account. She did not offer a valid explanation for depositing the filing fees in the operating account. Further, as of January 13, 2000, the balance in Smith's operating account was $1,766.25 short to cover her obligation for the Munims.
On January 13, 2000, Smith sent the Munims a fax stating that their package would be submitted to the INS that day. Smith gave the completed packet to her sister, who was acting as her secretary at the time, for mailing. Smith did not send the package as "return receipt."
Once or twice per week, the Munims contacted Smith's office requesting copies of the completed forms and material submitted to INS. They never received any of the requested proof of filing, nor does any appear to exist. Despite their frequent requests, it was not until April 2000 that Smith's office began researching the bank records to determine whether INS had submitted any of the checks for payment. Eventually, in May, Smith told the Munims that they would have to repay the filing fee and resubmit all documents.
In response, the Munims decided to resubmit their labor certification package to INS on their own. In order to complete this process, they had to borrow money for the filing fees and incurred additional costs associated with procuring new medical examinations, photographs, and notary services. These costs totaled $2997. The Munims orally requested that Smith refund their filing fee. They repeated this request in letters to Smith dated June 12 and 23, 2000. Smith did not communicate with them until July 11, 2000. Eventually, in October, 2000, Smith reimbursed the Munims $1665 for the filing fees.
As to Count I, the referee recommended that Smith be found guilty of violating rules 3-4.3 (misconduct); 4-1.3 (diligence); 4-1.4(a) (communication with client); 4-1.15(a)(2002) (); 4-8.4(a) (); 4-8.4(c) (); and 5-1.1(a) ().
Count II. Mr. Kebbab hired Smith to represent him in an immigration matter in October 2000. Kebbab was a permanent
resident whose status would expire on December 30, 2000. He sought a change of status because he had married an American citizen. Time was of the essence because of the impending deadline and because Kebbab wanted to travel outside the U.S. to attend his sister's wedding in August 2001.
For many months, Smith failed to communicate with Kebbab regarding the status of his case. Eventually, in the spring or summer of 2001, Kebbab went to the INS and found no record that his case had ever been filed. He began calling Smith's office several times a day because his status had been changed to illegal and he also needed to travel to the wedding. Further, he was laid off from work but was not eligible for unemployment benefits due to his expired status. Financially unable to hire another lawyer, Kebbab was dependent on Smith to conclude his case, which she ultimately did, and he obtained his green card.
As to Count II, the referee recommended that Smith be found guilty of violating rules 4-1.3 (diligence); 4-1.4 (communication with client); 4-1.16 (declining or terminating representation); 4-3.2 (expediting litigation); and 4-8.4(a) ().
Count III. On August 10, 2000, Smith issued a check for $100 to satisfy a bill from her phone answering service. The check was returned for insufficient funds twice. Smith ultimately repaid the $100 to the answering company. However, Smith was not able to arrange a payment plan for the additional service charges of $112.50. Smith's description of her difficulties working with the company to pay the additional service charges was corroborated by the Bar's investigator, who also found it difficult working with the complaining company. Therefore, the referee found that no particular significance should attach for Smith's failure to pay the additional service charges. However, for writing the check that was returned, the referee recommended that Smith be found guilty of violating rule 4-8.4(c) ().
In considering a disciplinary recommendation, the referee found the aggravating factors of (1) pattern of misconduct and (2) multiple offenses. Further, the referee found that Smith exhibited a pattern of excuse-making and blame-shifting which suggested that these types of transgressions could happen again unless there was specific training and supervision by more experienced lawyers or mentors. In mitigation, the referee found (1) absence of a dishonest or selfish motive; (2) Smith's lack of financial motivation contributed to her trouble keeping the books; (3) good reputation; (4) physical impairment; (5) rehabilitation; and (6) remorse. Further, the referee noted that at some point Smith began running her office alone, without any support staff. The referee concluded that Smith became overwhelmed due to a combination of medical problems, financial struggle, and overwork. Therefore, the referee concluded that Smith's financial mismanagement was the product of extraordinary sloppiness and culpable negligence, rather than a truly nefarious intent. Further, Smith had taken the following remedial steps: (1) she offered to refund the Munims for the last part of the certification process; (2) she voluntarily attended the Professionalism Seminar required for new lawyers; (3) she contacted The Florida Bar's Law Office Management Assistance Service (LOMAS), although she was unable to have them come to her office for financial reasons; (4) she contacted Florida Lawyer's Assistance for stress therapy; and (5) Smith began monitoring her blood pressure to minimize any relapse of her health problems.
As to discipline, the referee recommended that Smith be suspended for two years, followed by two years of probation with the following conditions: (1) Smith should obtain the services of LOMAS and her accounts should be subject to quarterly audits; (2) she should be required to certify her good health and fitness to practice quarterly with documentation by her physician; (3) Smith should obtain a mentor attorney (or one should be appointed for her) to monitor her caseload and disposition of cases quarterly; and (4) she should pay restitution to the Munims in the amount of $2997. The referee awarded costs of the proceeding to the Bar, which total $1150.
Smith petitioned this Court for review. Her challenges raise the following issues: (1) whether the referee's findings of fact are clearly erroneous; (2) whether the referee's findings of fact support her recommendation that Smith violated rule 4-8.4(c); (3) whether the referee's finding of two aggravating factors is clearly erroneous or lacking in evidentiary support; (4) whether the referee's disciplinary recommendation of a two-year suspension has a reasonable basis of support in existing case law; and (5) whether the...
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