The Florida Bar v. Grosso, SC94099.
| Decision Date | 01 June 2000 |
| Docket Number | No. SC94099.,SC94099. |
| Parties | THE FLORIDA BAR, Complainant, v. Domenic Leonard GROSSO, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John A. Boggs, Staff Counsel, Tallahassee, Florida, and David M. Barnovitz, Bar Counsel, Fort Lauderdale, Florida, for Complainant.
Domenic L. Grosso, Boca Raton, Florida, Respondent, pro se.
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by attorney Domenic Leonard Grosso. We have jurisdiction. See art. V, § 15, Fla. Const. The referee has recommended a fifteen-day suspension. The Florida Bar seeks review, requesting a ninety-one day suspension. For the reasons stated herein, we order a ninety-day suspension followed by a one-year probationary period.
On October 13, 1998, the Bar filed a complaint against respondent, alleging misconduct as to respondent's duties as guardian of property he agreed to keep in his possession during the time that his client, Michael Cusick, was on criminal probation. Respondent had represented Cusick in a dissolution of marriage case during the course of which Cusick was charged with domestic abuse. Cusick entered a no-contest plea to this charge and was placed on probation for one year. As a condition of probation, Cusick was required to give up possession of his firearms collection during the period of his probation. The court and the assistant state attorney approved respondent's taking possession of Cusick's weapons and retaining custody of them until the end of Cusick's probation. Respondent took possession of thirty-one firearms on October 8, 1996, to be held in trust for Cusick. A letter memorializing the agreement along with a list of the firearms was sent to the judge in Cusick's case. Respondent placed the firearms in his garage, where some of them rusted and pitted.
Cusick's probation ended October 7, 1997, at which time he demanded that respondent return his firearms. Respondent, by letter dated October 7, 1997, stated that he required a letter from the probation department confirming that the probation was terminated. Cusick produced such a letter. On October 15, 1997, respondent returned to Cusick twenty-nine of the thirty-one firearms that were entrusted to respondent, as evidenced by an inventory and receipt. By letter dated October 16, 1997, respondent acknowledged that two of the firearms were missing and one was likely still kept in his garage. Cusick made repeated calls to respondent, who wrote to Cusick in a letter dated October 30, 1997: On November 5, Cusick wrote to respondent again requesting the firearms. On November 6, respondent replied:
One of the twenty-nine weapons returned to Cusick was a 9 mm carbine, which was missing a bolt handle. Despite repeated demands, respondent failed to repair the bolt handle for the 9 mm carbine and return the two missing firearms, which were a .45-caliber carbine and a .45-caliber pistol. Cusick represented that the missing carbine was an irreplaceable collector's item.1 Respondent testified under oath at his disciplinary hearing before the referee that he did have the .45 carbine at home in a cardboard box. At the conclusion of the hearing, the referee announced that he would recommend a finding of not guilty, conditioned upon the return to Cusick of the missing firearm within fifteen days from the date of the final hearing. Respondent made no effort to contact Cusick within the fifteen-day period, which ended March 12, 1999. On March 18, respondent was tardy in arriving at a hearing, at which he then asserted that he had found a similar weapon but that it was not in a box, as Cusick said his rifle was.
In a letter dated April 7, 1999, and copied to the referee, respondent told Cusick that he had searched for the .45 carbine and could not find it. On August 7, 1998, respondent sent a letter to Cusick and enclosed a check for $280.54 made out to Cusick for what respondent considered to be restitution for the lost .45 carbine handgun. The referee considered his copy of said letter to be an ex parte communication and noted that it directly contradicted respondent's testimony in the original hearing, in which he stated that he had located the missing carbine, a position respondent still maintained at the March 18 hearing.
As to guilt, the referee found that respondent had failed to properly safeguard his client's property and had failed to promptly return all items held in trust for his client. The referee recommended that respondent be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-1.15(a) (); and rule 4-1.15(b) ().
As to discipline, the referee recommended that respondent be subject to discipline in the form of a suspension for fifteen days. In making this recommendation, the referee found as an aggravating factor that respondent had a prior record of the following disciplinary actions: (1) admonishment, May 6, 1994, for violation of rules 4-1.2(a) (); 4-1.3 (diligent representation); 4-1.5(a) (excessive fee); (2) admonishment, June 21, 1994, for violation of rule 4-1.3 (diligent representation); (3) ten-day suspension for a failure to respond to a Florida Bar investigative inquiry, Florida Bar v. Grosso, 647 So.2d 840 (Fla.1994); and (4) public reprimand for violations of rules 4-1.1 (competent representation); 4-1.3 (diligent representation); 4-1.4(a) (informing a client), Florida Bar v. Grosso, No. 83,989, 659 So.2d 1090 (Fla. June 22, 1995). The referee also found as an aggravating factor that respondent testified falsely under oath that he had found Cusick's .45 mm carbine, when in fact he had not, and found this to be "as egregious, if not more so, than the violations ... for which respondent has been found guilty." The referee noted that respondent had a "cavalier or lackadaisical" attitude during the disciplinary proceedings. As a mitigating factor, the referee found that respondent attempted to make restitution.
The referee found suspension to be the appropriate sanction under this Court's holdings in Florida Bar v. Weiss, 586 So.2d 1051 (Fla.1991) (), and Florida Bar v. McClure, 575 So.2d 176 (Fla.1991) (). The referee noted that the Florida Standards for Imposing Lawyer Sanctions and the Rules Regulating The Florida Bar make no distinction between client funds and client property in providing discipline for misconduct relating to client "property" or "funds and property." The referee noted that in Florida Bar v. MacMillan, 600 So.2d 457 (Fla.1992), the respondent was suspended for two years for violations including respondent's inability to return items of jewelry entrusted to him. The Florida Bar seeks review of the referee's report.
As to guilt, respondent in this Court states the "position" that he was not actually representing Cusick at the time he agreed to take possession of the firearms. However, neither respondent nor the Bar contests the referee's determination of guilt. Therefore, we approve the referee's findings of fact and recommendation as to respondent's guilt because they are supported by competent, substantial evidence.
As to the disciplinary recommendation, we disagree with the referee's recommendation of a fifteen-day suspension and reject the Bar's assertion that a ninety-one day suspension, with required proof of rehabilitation, is appropriate here. See, e.g., Florida Bar v. Pipkins, 708 So.2d 953, 955 (Fla.1998)
. The Bar argues that a fifteen-day suspension is inconsistent with the referee's own...
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