The Florida Bar v. Forrester
| Decision Date | 16 May 2002 |
| Docket Number | No. SC00-813.,SC00-813. |
| Parties | THE FLORIDA BAR, Complainant, v. Geneva Carol FORRESTER, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Susan V. Bloemendaal, Chief Branch Discipline Counsel and Susan Gralla Zemankiewicz, Assistant Staff Counsel, Tampa, FL, for Complainant.
Henry P. Trawick, Sarasota, FL, for Respondent.
Geneva Carol Forrester, a member of The Florida Bar, petitions this Court to review a referee's report recommending that she be found guilty of ethical breaches. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we approve the referee's findings of guilt and recommended discipline.
The Bar filed a complaint against Forrester alleging that she violated Rules Regulating the Florida Bar 4-3.4(a) (), and 4-8.4(c) () in the context of her representation of a construction company in civil litigation. The referee held a hearing and issued a report making the following findings:
Based upon the evidence presented at the hearing in this matter, the referee found that Forrester knowingly and intentionally removed and concealed evidence (exhibit 5) for a period of time at the March 13, 1998, deposition. The referee further found that Forrester was given more than one opportunity to return exhibit 5, but did not do so until she was confronted by opposing counsel. Although Forrester expressed the belief that exhibit 5 belonged originally to her client, the referee found that Forrester's belief did not constitute a defense to her taking of the document, as lawful remedies were available for the retrieval of the document. Likewise, the referee found that the availability of copies to the parties did not constitute a defense for Forrester's taking exhibit 5, as it was documentary evidence in a deposition. Accordingly, the referee recommended that Forrester be found guilty of violating rule 4-3.4(a) ().
Additionally, the referee found that Forrester made an intentional misrepresentation concerning the location of exhibit 5 when asked whether she had it. The referee found that, although Forrester truthfully replied, "I'm not seeing it," Forrester's answer was intended to mislead because she in fact knew where the document was located and failed to disclose that information to Berry. As such, the referee recommended that Forrester be found guilty of violating rule 4-8.4(c) ().
The referee recommended that Forrester be suspended for sixty days to be followed by one year of probation during which Forrester must attend, and successfully complete, The Florida Bar's ethics school. The referee found no mitigating factors. In aggravation, the referee found a prior disciplinary history,1 dishonest or selfish motive, and substantial experience in the practice of law. The referee also recommended that the Bar be awarded $1,335.15 in costs.
Forrester has petitioned this Court to review the referee's report, challenging the referee's recommendations as to guilt, the referee's recommended discipline, and various procedural rulings made or actions taken by the referee.2
Forrester first challenges the referee's finding that her conduct violated rule 4-3.4(a). Forrester raises three claims that rule 4-3.4(a) does not apply to her conduct at the deposition. We find each of her arguments to be without merit, and address them individually.
First, Forrester argues that rule 4-3.4(a) was not intended to proscribe the concealment of evidence where multiple copies are available or when the concealment lasts for only a short period of time. However, rule 4-3.4(a) specifically prohibits the concealment of a document that "the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding." The rule does not distinguish the situations where multiple copies of documents are available or when the concealment lasts for only a short duration. The comment to rule 4-3.4(a), although not binding authority, supports our finding that the availability of copies of evidence is irrelevant to whether concealment of an original violates the rule. The comment provides, in pertinent part:
R. Regulating Fla. Bar 4-3.4(a), cmt. The comment notes that one of the purposes of rule 4-3.4(a) is to secure fair competition in the adversary system. Fair competition is secured by ensuring that a party's right to obtain relevant evidence is not frustrated by the concealment of such evidence. We see no reason to distinguish the situation where multiple copies of a document are available or when the concealment lasts for only a short period of time. Thus, we conclude that in...
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