The Florida Bar v. Temmer

• Decision Date: 16 December 1999
• Docket Number: No. 93,886.,93,886.
• Citation: 753 So.2d 555
• Court: Florida Supreme Court
• Parties: THE FLORIDA BAR, Complainant, v. Taryn Xenia TEMMER, Respondent.

753 So.2d 555

THE FLORIDA BAR, Complainant, v. Taryn Xenia TEMMER, Respondent.

No. 93,886.

Supreme Court of Florida.

December 16, 1999.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, Florida; and Monica Ann Frost, Assistant Staff Counsel, Tampa, Florida, for Complainant.

Scott K. Tozian of Smith & Tozian, P.A., Tampa, Florida, for Respondent.

PER CURIAM.

We have for review the referee's report and recommendations regarding alleged ethical violations by attorney Taryn Xenia Temmer.¹ The question in this case is whether the referee's recommended discipline of a ninety-day suspension followed by three years' probation for Temmer's drug-related misconduct has a reasonable basis in existing caselaw where Temmer has been previously so disciplined for similar misconduct and committed her present misconduct while still on disciplinary probation. We resolve this question in the negative, reject the referee's recommended discipline of a ninety-day suspension followed by three years' probation, and instead suspend Temmer for ninety-one days (which will require Temmer to prove rehabilitation before being reinstated to membership in The Florida Bar) followed by three years' probation.

FACTS

In 1994, this Court suspended Temmer for ninety days followed by three years' probation for disciplinary violations arising from her use of marijuana and crack cocaine. See Florida Bar v. Temmer, 632 So.2d 1359 (Fla.1994). In so disciplining Temmer, and as especially relevant in the present case, this Court in 1994 explicitly disapproved the referee's recommended discipline of a ninety-one-day suspension and proof of rehabilitation, finding in pertinent part:

The referee made findings that Temmer has not become drug dependent and that her competence as a practicing attorney is not at issue. The referee also stated that he took into consideration that Temmer sought professional assistance for her drug use and that she has no prior disciplinary actions.

... Temmer sought the assistance of a mental health counselor to deal with her abusive relationship with [her boyfriend] Alvaro; she contacted F.L.A.[²] and sought the assistance of a psychiatrist specializing in addictionology; and she also sought help from a licensed clinical social worker. Based upon the psychiatrist's report and the F.L.A. evaluation, F.L.A. advised the Bar that there "does not appear to be sufficient evidence upon which to infer a substance abuse problem", and that they would not be further involved unless advised otherwise. Although Temmer did resume cocaine use during her brief renewed relationship with Alvaro, she has not used any drugs since January 1992 and has had no contact with Alvaro since then. Three mental health experts testified that Temmer's problems are related to her personality and relationships, and that she is not drug-dependent. Four unannounced urine drug screens conducted from March 1992 through May 1993 were negative. This evidence supports a finding of rehabilitation.

Id. at 1360-61.

Toward the end of the probationary portion of her 1994 discipline, Temmer was arrested and criminally charged with possession of marijuana, cocaine, valium, and drug paraphernalia. Temmer pled not guilty and prevailed on a suppression motion. The criminal charges were ultimately dismissed.

The Bar nevertheless pursued disciplinary action, alleging multiple disciplinary violations based on the facts underlying the drug arrest and the charges arising therefrom.³ The parties ultimately entered into a joint stipulation, wherein Temmer stipulated to those facts and admitted guilt of the Bar's disciplinary charges.

At a subsequent hearing regarding the discipline to be imposed, Temmer presented substantial mitigating evidence (discussed immediately below in the referee's findings of fact and mitigation). In his report, the referee ultimately recommended finding Temmer guilty as charged.⁴ As to discipline, the referee found that

although Respondent was on disciplinary probation at the time of this violation, she was not found guilty of any criminal conduct in a criminal court. Further, I find that the Respondent voluntarily submitted herself to FLA, Inc. for evaluation. She further submitted to a seven-day residential evaluation at Health-Care connection at the recommendation of FLA, Inc. As part of this program, Respondent was referred to a psychiatrist for further evaluation. Dr. James E. Adams, the psychiatrist, testified that Respondent was suffering from either Cyclothymic Disorder or Bi-Polar Disease, a long-term pre-existing psychological condition. Dr. Adams prescribed Lithium to treat this disorder. Dr. Adams testified that the likelihood of a recurrence of the substance abuse by the Respondent is greatly diminished, if she remains on her medications as prescribed.

I specifically find that if Respondent had been diagnosed with Cyclothymic Disorder or Bi-Polar Disease during the time of her first disciplinary offense in 1994, there may have been a substantial difference in the treatment that was recommended. Respondent has complied with all other conditions of her probation. No clients have been harmed, and Respondent's ability to competently practice law was substantiated by the testimony of judges in front of whom she has appeared, and lawyers with whom she has worked.

In mitigation, the referee found that Temmer had personal or emotional problems; that she had provided full and free disclosure to the disciplinary board or a cooperative attitude toward the proceedings; that she had a physical or mental disability or impairment; that she had interim rehabilitation; and that she showed remorse. In aggravation, the referee found that Temmer had been previously disciplined (i.e., her 1994 ninety-day suspension followed by a three-year probation for drug-related offenses). The referee ultimately recommended that Temmer again be suspended for ninety days, followed by three years' probation, and that she continue treatment with F.L.A., Inc., comply with the terms of the rehabilitation contract she had entered into with F.L.A., Inc., and pay the Bar a monitoring fee of $100 per month.

ANALYSIS

The Bar now petitions for review, urging that the referee's recommended discipline is inadequate and that this Court should instead "suspend [Temmer] for ninety-one days based on the serious nature of [her] misconduct, The Florida Standards for Imposing Lawyer Sanctions and relevant case law." We agree.

"Although a referee's recommended discipline is persuasive, [this Court] does not pay the same deference to this recommendation as [it does] to the guilt recommendation because this Court has the ultimate responsibility to determine the appropriate sanction." Florida Bar v. Sweeney, 730 So.2d 1269, 1272 (Fla. 1998). However, generally speaking, this Court "will not second-guess a referee's recommended discipline as long as that discipline has a reasonable basis in existing caselaw." Florida Bar v. Lecznar, 690 So.2d 1284, 1288 (Fla.1997). In making this determination, this Court considers not only caselaw but also the Florida Standards for Imposing Lawyer Sanctions. See, e.g., Sweeney, 730 So.2d at 1272 ("[W]e agree with the Bar's contention that the referee's recommended discipline is inadequate in this case, and we do not find a reasonable basis for it in existing case law or in the Standards for Imposing Lawyer Sanctions.").

We find that the referee's recommended discipline in the present case that Temmer be suspended for ninety days followed by three years' probation does not have "a reasonable basis in existing caselaw." Lecznar, 690 So.2d at 1288. But for several incidental variations in probationary conditions, the present recommended discipline is identical to Temmer's previous discipline for similar misconduct in 1994. See Temmer, 632 So.2d at 1361. Florida Standard for Imposing Lawyer Sanctions 10.3 provides:

Absent the existence of aggravating factors, the appropriate discipline for an attorney found guilty of felonious conduct as defined by Florida State law involving the personal use and/or possession of a controlled substance who has sought and obtained assistance from F.L.A., Inc., or a treatment program approved by F.L.A., Inc., as described in paragraph one above, would be as follows:

(a) A suspension from the practice of law for a period of 91 days or 90 days if rehabilitation has been proven; and

(b) A three-year period of probation, subject to possible early termination or extension of said probation, with a condition that the attorney enter into a rehabilitation contract with F.L.A., Inc. prior to reinstatement.

(Emphasis supplied.) This Court applied this standard in Temmer's 1994 disciplinary proceeding in explicitly rejecting the referee's recommended discipline of a ninety-one-day suspension and proof of rehabilitation, holding:

In light of [the] evidence and Standard 10.3(a), we find a ninety-day suspension to be the appropriate discipline in this case. Thus, we disapprove the referee's recommended discipline of a ninety-one-day suspension and proof of rehabilitation. However, we agree with the referee that a three-year probationary period is appropriate, in light of Temmer's history.

Temmer, 632 So.2d at 1361. Significantly, however, "Temmer's history" now includes significant aggravation-namely, Temmer's 1994 discipline for similar misconduct arising from her use of marijuana and crack cocaine. See Fla. Stds. Imposing Law. Sancs. 9.22(a) (listing "prior disciplinary offenses" as an aggravating factor). Indeed, but for the substantial mitigation presented, disbarment might have been in order here. See Fla. Stds. Imposing Law. Sancs. 8.1(b) ("Absent aggravating or mitigating circumstances, and upon application of the factors set out in Standard 3.0, ... [d]isbarment is [generally] appropriate when a lawyer ... has been suspended for the same or similar misconduct, and intentionally...