The Florida Bar v. Dubow, s. 80327

• Decision Date: 24 March 1994
• Docket Number: 80479,Nos. 80327,s. 80327
• Citation: 636 So.2d 1287
• Parties: 19 Fla. L. Weekly S140 THE FLORIDA BAR, Petitioner, v. Alan E. DUBOW, Respondent.
• Court: Florida Supreme Court

Page 1287

636 So.2d 1287

19 Fla. L. Weekly S140

THE FLORIDA BAR, Petitioner, v. Alan E. DUBOW, Respondent.

Nos. 80327, 80479.

Supreme Court of Florida.

March 24, 1994.

Rehearing Denied June 8, 1994.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Randi Klayman Lazarus, Bar Counsel, Miami, for complainant.

Nicholas R. Friedman of Friedman Law Firm, Miami, for respondent.

PER CURIAM.

Alan E. Dubow seeks review of the referee's recommended discipline in this matter. We have jurisdiction under article V, section 15 of the Florida Constitution.

In August and September 1992, the Bar filed complaints against Dubow alleging unethical conduct in case numbers 80,327 and 80,479, respectively. In case number 80,327, the Bar's complaint alleged that, between June 17, 1987, and June 21, 1988, Dubow caused thirty-one checks to be dishonored. Several of those were the result of Dubow writing checks on closed accounts. Other checks were dishonored as a result of insufficient funds and check-kiting. Dubow refused to pay his bank for the overdrafts and was sued. A judgment was entered against him on May 14, 1990. Additionally, Dubow maintained a trust account which contained shortages in September and January 1987.

In case number 80,479 the Bar alleged that Dubow was retained by a client to prepare a warranty deed to certain real property and to obtain the signature of the grantor. Dubow traveled from Miami to the Bahamas to obtain the signature and act as notary. However, due to Dubow's negligence, the signature obtained was forged, and Dubow fraudulently notarized it as he was outside of the United States. Dubow then recorded the deed, conveying the property from the grantor to his client, in Dade County. He also formed a corporation which took title to the property by warranty deed and placed a mortgage on the property. Subsequently, Dubow was named as a third-party defendant in an action to quiet title. The complaint alleged his participation in the preparation, signing, and recording of a forged deed and the fraudulent notarization of the deed. An order of summary judgment and final judgment in the amount of $151,774.37 was entered against Dubow. He has not yet made restitution.

With the complaints, the Bar filed requests for admissions. Dubow failed to respond within the time allotted by the rules, and, on January 5, 1993, the Bar filed a "Motion for Order Deeming Matters Admitted." Dubow then responded to the request for admissions and replied to the Bar's motion. The referee granted the Bar's motion on January 11, 1993. Subsequently, a hearing was held on a motion by Dubow to vacate the order deeming matters admitted. The referee, however, refused to set aside the order.

A final hearing, relating solely to discipline, was held in May 1993. The referee found Dubow guilty of violating rules 4-8.4(b) (criminal acts), 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 4-8.4(d) (conduct prejudicial to the administration of justice), and 5-1.1 (money held in trust for a specific purpose must be applied only to that purpose), and recommended that Dubow be disbarred. In making her recommendation, the referee noted that the judgments entered against Dubow, and referred to in the Bar's complaints, are still outstanding. She pointed out that Dubow has demonstrated a pattern of misconduct which is ongoing, in that he has been fined by the U.S. Bankruptcy Court for lying to the court and attempted to offer into evidence in this proceeding a satisfaction of judgment which he knew or should have known was a fraud. She also pointed out that he had lied to the Bar concerning his employment status. In mitigation the referee found that Dubow has no prior disciplinary record. Finally, the referee recommended that Dubow pay costs of $13,022.91.

Before this Court, Dubow contends that the referee erred in granting the Bar's "Motion to Deem Matters Admitted." Rule 3-7.6(e)(2) of the Rules Regulating The Florida Bar provides that "[d]iscovery shall be available to the parties in accordance with the Florida Rules of Civil Procedure." Rule 1.370(a) of the Florida Rules of Civil Procedure provides that a party may serve on any other party a written request for admission of any matter within the general scope of discovery.

The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading upon the defendant.

Fla.R.Civ.P. 1.370(a).

In the instant case, Dubow did not comply with the rules. His responses to the requests for admissions were due on ...