The Florida Bar v. Kandekore, SC87538.

• Decision Date: 01 June 2000
• Docket Number: No. SC87538.,SC87538.
• Citation: 766 So.2d 1004
• Parties: THE FLORIDA BAR, Complainant, v. Lijyasu Mahomet KANDEKORE, Respondent.
• Court: Florida Supreme Court

766 So.2d 1004

THE FLORIDA BAR, Complainant, v. Lijyasu Mahomet KANDEKORE, Respondent.

No. SC87538.

Supreme Court of Florida.

June 1, 2000.

Rehearing Denied September 1, 2000.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff

Counsel, Tallahassee, Florida, and Randi Klayman Lazarus, Bar Counsel, Miami, Florida, for Complainant.

Lijyasu Mahomet Kandekore, Miami, Florida, Respondent, pro se.

PER CURIAM.

We have for review the report of the referee recommending that disciplinary measures be imposed upon respondent, Lijyasu M. Kandekore, for alleged ethical breaches. We have jurisdiction. See art. V, § 15, Fla. Const.

FACTS

On April 28, 1995, a New York trial court adjudicated Kandekore guilty of three offenses: second-degree assault (assaulting a police officer), a felony in the State of New York; resisting arrest; and driving with impaired ability. Kandekore's felony conviction spawned the following two disciplinary actions by The Florida Bar.

In the first action, case number 86,224, the Bar filed a Notice of Determination of Guilt pursuant to Rule Regulating The Florida Bar 3-7.2 seeking Kandekore's automatic suspension based upon his New York felony conviction. Kandekore filed a Petition to Modify or Terminate Suspension. On November 1, 1995, this Court stayed Kandekore's suspension pending the disposition of his criminal appeal in New York. When a New York appellate court affirmed the convictions, this Court lifted the stay and suspended Kandekore. See Florida Bar v. Kandekore, 729 So.2d 395 (Fla.1999).

The Bar's second disciplinary action forms the basis of the instant case. On March 8, 1996, the Bar filed a complaint against Kandekore pursuant to Rule Regulating The Florida Bar 3-7.2(j)(2) (providing that a final adjudication of misconduct by a court in another jurisdiction "shall be sufficient basis for the filing of a complaint by The Florida Bar ... without a finding of probable cause under these rules"). The Bar asserted that Kandekore had been disbarred in the State of New York as a result of his felony conviction. Arguing that Kandekore had violated Rule Regulating The Florida Bar 4-8.4(b) (prohibiting attorneys from committing criminal acts which reflect adversely on honesty, trustworthiness or fitness as a lawyer in other respects), the Bar asked this Court to discipline him.

The Court appointed a referee to Kandekore's case and a hearing was held. At the hearing, Kandekore presented no evidence. He only made a request for a continuance, which the referee denied. The Bar presented evidence, including the testimony given at Kandekore's criminal trial by the law enforcement officer Kandekore had been convicted of assaulting.

On August 2, 1996, the referee issued his report. The referee found that Kandekore had been convicted of a felony in New York, but that an appeal was pending. In light of the fact that the stay imposed in case number 86,224 was still in effect at the time of his report, the referee recommended that the instant case be dismissed. The referee also recommended that the Bar's request for "reciprocal discipline" be denied because (1) Kandekore received no hearing prior to his disbarment in New York, and (2) Kandekore was entitled to the benefit of the previous stay imposed by this Court.

On June 4, 1997, this Court declined to dismiss the instant case. Instead, the Court stayed proceedings against Kandekore pending the outcome of his criminal appeal in New York as it had done in case number 86,224. After Kandekore's New York convictions were affirmed, the Court lifted the stay in the instant case and returned the record to the referee for a supplemental report.

In the supplemental report, the referee incorporated the findings of fact from his report of August 2, 1996. The referee recommended that Kandekore be disbarred and stated that "this recommendation is based on the testimony and evidence taken on July 26, 1996, together with the affirmance of respondent's convictions in the State of New York."

Kandekore has petitioned for review. He presents four arguments as to why this Court should not adopt the referee's recommendation. First, Kandekore claims that the referee erred in refusing to grant him a continuance. Second, he argues that the referee's failure to grant him a continuance denied him due process. Kandekore's third argument is not entirely clear; however, he appears to argue either that his New York conviction should not serve as conclusive proof that he committed a felony, or that his disbarment in New York based on his conviction should not serve as conclusive proof of the misconduct charged (i.e., assault of a law enforcement officer). Fourth, Kandekore asserts that the referee's recommendation of disbarment is too severe. We address each of Kandekore's arguments in turn.

THE PROPRIETY OF THE REFEREE'S REFUSAL TO GRANT KANDEKORE A CONTINUANCE

This Court has held in the past that a referee may properly deny an "eleventh hour" request for a delay in the proceedings. See Florida Bar v. Pavlick, 504 So.2d 1231, 1234 (Fla.1987)

; Florida Bar v. Lipman, 497 So.2d 1165, 1167-68 (Fla. 1986) (finding that "[i]t is within the sound discretion of the referee ... to grant or deny a motion for continuance" and that "[s]uch a ruling will not be disturbed by this Court absent a clear abuse of discretion"). In Pavlick, The Florida Bar sought a delay in the proceedings so that it could provide "a more complete version of the facts." 504 So.2d at 1234. This Court held that the referee did not err in denying the request since the Bar failed to demonstrate that it could not have obtained this evidence earlier. Id.

In arguing for a continuance, Kandekore neither claimed that he failed to receive notice of the hearing nor alleged that he was unable to receive the evidence he wished to present prior to the hearing. Rather, he appeared totally unprepared, and failed to offer any explanation as to why, other than stating his belief that the hearing was "supposed to be an inquiry" and that the Bar was supposed to provide the referee with "all of the facts." In light of Kandekore's lack of explanation for his "eleventh hour" request, we conclude that the referee did not abuse his discretion in denying Kandekore's request for a continuance.

THE DUE PROCESS CHALLENGE

Kandekore next argues that he was denied due process because he was not allowed to present evidence at the hearing challenging the fairness of the proceedings in New York. He also argues that he was denied due process because he was not given the opportunity to present evidence in support of mitigation. See, e.g., Florida Bar v. Carricarte, 733 So.2d 975, 979 (Fla. 1999)

("[D]ue process requires that the attorney be permitted to explain the circumstances of the alleged offense and to offer testimony in mitigation of any penalty to be imposed."); Pavlick, 504 So.2d at 1234 ("Due process ... requires that the accused lawyer shall be given full opportunity to explain the circumstances and otherwise offer testimony in excuse or in mitigation of the penalty.").

However, contrary to Kandekore's claims, a properly noticed hearing in this case was held on July 26, 1996. At this hearing, Kandekore could have, and should have, presented mitigating evidence and challenged the fairness of the disciplinary proceedings in New York. Instead of doing so, he requested a continuance. Kandekore's erroneous belief that the Bar was supposed to provide the referee with all of the facts at the hearing does not elevate the referee's refusal to grant a continuance to a denial of due process. Rule Regulating The Florida Bar 3-7.6(b) expressly states that proceedings before a referee are adversarial and rule 3-4.1 charges every member of the Bar with notice of the Rules of Discipline. Therefore, Kandekore should have known that the Bar would not present "both sides" of his case at the hearing. Because Kandekore had the opportunity to present evidence, but in effect waived it by arriving at the hearing unprepared, we conclude that Kandekore was not denied due process.

OUT-OF-STATE PROCEEDINGS SERVING AS CONCLUSIVE PROOF IN FLORIDA DISCIPLINARY PROCEEDINGS

It is not entirely clear whether Kandekore is arguing that his New York conviction should not serve as conclusive proof that he committed a felony, or that his disbarment in New York based on his conviction should not serve as conclusive proof of the misconduct charged. For the reasons expressed below, we conclude that neither argument has merit. Further, we find that the felony committed by Kandekore, assault of a law enforcement officer, reflects adversely on his fitness as a lawyer, thereby violating Rule Regulating The Florida Bar 4-8.4(b).

A. Whether an out-of-state conviction may serve as conclusive proof of the criminal offense charged

Under Rule Regulating The Florida Bar 3-7.2(b), a conviction serves as conclusive proof of guilt of the criminal offense charged. See also R. Regulating Fla. Bar 3-7.2(i)(3) (providing that "where the underlying criminal charges constitute felony charges, determinations or judgments of guilt shall ... constitute conclusive proof of the criminal offense(s) charged"). This Court has held that a referee may not "go behind" a conviction to determine whether or not the attorney is actually guilty of the offense. The attorney may only testify as to facts which may be considered in mitigation of the sanctions to be imposed. See Florida Bar v. Vernell, 374 So.2d 473 (Fla.1979)

; Florida Bar v. Horne, 527 So.2d 816 (Fla.1988). Therefore, Kandekore's felony conviction must be taken as conclusive proof of the crime he is alleged to have committed, assault of a law enforcement officer, and he may not challenge the validity of his New York conviction in the instant proceedings.

B. Whether an out-of-state disciplinary adjudication of guilt may serve as conclusive proof of the misconduct charged

Under Rule Regulating The Florida Bar...