The Florida Bar v. Martocci, SC95315.
| Decision Date | 26 April 2001 |
| Docket Number | No. SC95315.,SC95315. |
| Citation | 791 So.2d 1074 |
| Parties | THE FLORIDA BAR, Complainant, v. Henry John MARTOCCI, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Division Director, Tallahassee, FL; and Frances R. Brown-Lewis, Bar Counsel, Orlando, FL, for Complainant.
Henry J. Martocci, pro se, Rockledge, FL, for Respondent.
We have for review a referee's report regarding alleged ethical breaches by respondent Henry John Martocci (Martocci). We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons stated herein, we affirm the referee's findings of fact, conclusions of guilt, and recommended discipline.
On April 14, 1999, based on Martocci's representation of Francis Berger in a dissolution of marriage and child custody action and a child dependency action, The Florida Bar filed a two-count complaint against Martocci. In count one, the Bar alleged that, in various instances during the course of the Berger proceedings, Martocci made unethical, disparaging, and profane remarks to belittle and humiliate the opposing party, Florence Berger, and her attorney, Diana Figueroa. The allegation of unethical behavior in count two arose from a confrontation between Martocci and James Paton, the father of Ms. Berger, during the recess of a hearing on May 8, 1998. After a three-day hearing in September 1999, the referee, Judge Cynthia G. Angelos, found Martocci guilty on both counts of violating rule 4-8.4(d) of the Rules Regulating The Florida Bar. The referee made the following findings of fact.
Based on testimonial and documentary evidence, the referee made findings as to specific instances of Martocci's misconduct. Regarding count one, the referee found that, in December 1996, Martocci called Ms. Berger a "nut case." After a deposition on May 5, 1998, Martocci referred to Ms. Berger as a "crazy" and a "nut case." During another deposition on May 5, 1998, Martocci made demeaning facial gestures and stuck out his tongue at Ms. Berger and Ms. Figueroa. After a hearing on June 24, 1998, upon exiting an elevator, Martocci told Ms. Figueroa that she was a "stupid idiot" and that she should "go back to Puerto Rico." In another incident, on June 19, 1998, during an intermission of a deposition, Ms. Figueroa telephoned the office of Judge Edward J. Richardson and reached Pamela Walker, a judicial assistant. After Ms. Figueroa spoke to Ms. Walker, Martocci took the telephone and yelled the word "bitch." Martocci admitted that because the phone was dead when he received it from Ms. Figueroa, he said "son of a bitch" as a frustrated response to missing the opportunity to speak to Ms. Walker. Martocci claims that he did not say these words to anyone in particular. The referee also found that throughout the Berger proceedings Martocci repeatedly told Ms. Figueroa that she did not know the law or the rules of procedure and that she needed to go back to school.
As to the second count, the referee found that on May 8, 1998, during a recess to a hearing in the Berger proceedings, when Mr. Paton entered the courtroom, Martocci said "here comes the father of the nut case." Mr. Paton responded by approaching respondent and saying, "If you have something to say to me, say it to my face, not in front of everyone here in the courtroom." Thereafter, in open court and for all to see, Martocci closely approached Mr. Paton and threatened to beat him. Upon Ms. Figueroa's attempt to intervene, Martocci told her to "go back to Puerto Rico." This confrontation only ended when a bailiff entered the courtroom.
On the basis of such misconduct, the referee recommended the imposition against Martocci of a public reprimand and a two-year period of probation with conditions including an evaluation by Florida Lawyers Assistance for possible anger management or mental health assistance or both. In recommending discipline, the referee noted that the underlying Berger proceedings were difficult cases which caused frustration to all the parties involved, including the presiding judges. The referee also noted that Martocci had a good reputation for representing his clients and had no prior disciplinary convictions. In aggravation, the referee recognized that, despite Martocci's substantial experience in the practice of law,1 Martocci engaged in a pattern of unethical misconduct and refused to acknowledge the wrongful nature of his conduct.
In seeking review, Martocci raises four general claims: (1) the findings of fact are clearly erroneous and unsupported by the evidence in the record; (2) even if the findings of fact are correct, they legally do not constitute a violation of rule 4-8.4(d); (3) the referee erroneously shifted to Martocci the burden of proving his innocence; and (4) the public reprimand penalty is excessive, and the misconduct only warrants a private reprimand. Martocci further argues that a public reprimand is not in accordance with the Florida Standards for Imposing Lawyer Sanctions or the purposes of attorney discipline. Claims one, two, and four merit discussion and are analyzed in turn. Review of the record, however, demonstrates that claim three is without merit, and we dispose of it summarily.2
A referee's findings of fact regarding guilt carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. See Florida Bar v. Summers, 728 So.2d 739, 741 (Fla.1999). If the referee's findings are supported by competent, substantial evidence, we do not re-weigh the evidence and substitute our judgment for that of the referee. See id. To overturn the referee's findings of fact and conclusions of guilt Martocci must demonstrate that the findings are clearly erroneous or unsupported by the record.
Martocci challenges the testimonial evidence presented by the Bar as imprecise, contradictory, unreliable, and without any support in the record. Martocci further argues that the finding that he yelled profanity through the telephone during the intermission of a deposition is a clearly erroneous interpretation of Ms. Walker's testimony. Finally, Martocci argues that, in making findings of fact based on Ms. Figueroa's testimony, the referee did not appropriately consider the testimony of several attorneys who testified that Ms. Figueroa did not have a good reputation for truth and veracity in the legal community.
Review of the record reveals that there is competent, substantial documentary and testimonial evidence to support the referee's findings of fact and conclusions of guilt. See Summers, 728 So.2d at 741. The deposition transcripts in the record alone establish that Martocci engaged in the unprofessional conduct of seeking to belittle and humiliate Ms. Figueroa and Ms. Berger. The record reflects that Martocci: (1) made insulting facial gestures to Ms. Berger and Ms. Figueroa; (2) called Ms. Figueroa a "bush leaguer"; (3) told Ms. Figueroa that depositions are not conducted under "girl's rules"; (4) continually disparaged Ms. Figueroa's knowledge and ability to practice law; and (5) threatened Mr. Paton physically within the courtroom during a recess to a hearing. The entire record is replete with evidence of Martocci's verbal assaults and sexist, racial, and ethnic insults supporting the referee's conclusion that Martocci engaged in patently unethical behavior designed to belittle and humiliate Ms. Berger and Ms. Figueroa and threaten Mr. Paton.
Furthermore, as to factual findings based on witness testimony, we have stated, "[t]he referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that this judgment is incorrect." Florida Bar v. Carricarte, 733 So.2d 975, 978 (Fla.1999) (quoting Florida Bar v. Thomas, 582 So.2d 1177, 1178 (Fla.1991)). Thus, although Martocci offered evidence that may have put Ms. Figueroa's credibility in doubt, we find no indication that the referee's assessment of her credibility was clearly erroneous. We reject Martocci's version of the controverted evidence because competent, substantial evidence exists to support the referee's resolution of the debatable issues in favor of the Bar. See Florida Bar v. Schultz, 712 So.2d 386, 388 (Fla.1998) (...
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