The Florida Bar v. Catarcio, 88850

• Decision Date: 12 February 1998
• Docket Number: No. 88850,88850
• Citation: 709 So.2d 96
• Parties: 23 Fla. L. Weekly S80 THE FLORIDA BAR, Complainant, v. Richard CATARCIO, Respondent.
• Court: Florida Supreme Court

Page 96

709 So.2d 96

23 Fla. L. Weekly S80

THE FLORIDA BAR, Complainant, v. Richard CATARCIO, Respondent.

No. 88850.

Supreme Court of Florida.

Feb. 12, 1998.

Rehearing Denied April 28, 1998.

John Allen Yanchunis, Chair, Standing Committee on Unlicensed Practice of Law, St. Petersburg, John F. Harkness, Jr., Executive Director; Mary Ellen Bateman, UPL Counsel, Tallahassee, and Janet E. Bradford, Branch UPL Counsel, Ft. Lauderdale, for Complainant.

Arthur N. Razor, Coral Springs, for Respondent.

PER CURIAM.

We have for review the referee's report regarding the unlicensed practice of law by respondent, Richard Catarcio. We have jurisdiction. Art. V, § 15, Fla. Const.

On August 28, 1996, The Florida Bar filed a two-count petition against Catarcio, alleging that he had engaged in the unlicensed practice of law in relation to his preparation of a bankruptcy petition and the manner in which he advertised his legal forms preparation service. Catarcio filed an answer and moved to dismiss the petition, arguing that the Bar's attempt to regulate his conduct was preempted by 11 U.S.C. § 110 (1994), which generally regulates the conduct of a "bankruptcy petition preparer," and that the relief sought in the petition would violate the First Amendment of the United States Constitution as it would unlawfully infringe on his commercial speech. We denied Catarcio's motion and a hearing was held before a referee on September 15, 1997. After conducting the hearing, the referee made the findings of fact set forth below.

Catarcio was not and is not a member of The Florida Bar and is therefore not licensed to practice law in Florida. He operates a paralegal service business under the name "American Paralegal Center, Inc.," a Florida corporation, of which he is the sole officer, director, and owner, and his business card shows the Scales of Justice and identifies him as "Richard T. Catarcio, J.D." Catarcio advertises his business in The Flyer, a weekly advertising publication, under the heading "Professional Services" and the subheading "Legal," and the advertisement provides a list of available services, including simple divorce and bankruptcy. The advertisement also contains an offer of "Free Consultation."

In May 1994, Robert Cooper contacted Catarcio for assistance in filing for personal bankruptcy. Cooper met with Catarcio at Catarcio's office, seeking advice as to the appropriateness of filing for bankruptcy, and Catarcio told him that filing for bankruptcy would be proper. Catarcio advised Cooper that he was eligible to file for bankruptcy and that he should file under Chapter 7 of the Bankruptcy Code; Cooper wanted Catarcio to file the bankruptcy petition for him because he thought Catarcio knew what he was doing.

Thereafter, Catarcio advised Cooper and Cooper's ex-wife, Michele Caron, to file for joint bankruptcy, advising Caron that if she did not file for joint bankruptcy, the bankruptcy trustee would "come after" her once Cooper's bankruptcy was completed. Catarcio then orally communicated with Cooper concerning the information to be placed in the bankruptcy petition and what to write in filling out the petition. Catarcio decided where to file the petition and what boxes to check on the bankruptcy forms indicating under which statutes Cooper's property should be exempted, as Cooper did not know what placing check marks in the boxes meant. Catarcio also advised Cooper about what qualified as joint property for the purposes of bankruptcy, selected the legal citations to be placed in the petition to indicate the statutory exemptions claimed, and explained the value of Cooper's personal property which could be claimed as exempt. In addition, Catarcio advised Caron to sign her name as "Cooper" on the joint bankruptcy petition even though she told him that she was divorced and that her legal name at the time was Caron.

Subsequently, when two omissions in the bankruptcy petition were discovered, Cooper again contacted Catarcio. Catarcio advised him to file an amendment to add an omitted creditor, Sears, and to add his vehicle, a van, to the bankruptcy petition. Catarcio informed Cooper that Catarcio would prepare the amendment to the petition and that Cooper "should not worry about it," adding that the effect of the amendment would be that the bankruptcy trustee would be unable to take the van. Catarcio then took the information from Cooper orally to prepare the amendment.

Cooper testified that he went to Catarcio to have him properly and competently fill out his bankruptcy forms and that, in preparing the bankruptcy petition and amendment, Catarcio held himself out in such a way that Cooper assumed he was an attorney because of "the way he [Catarcio] talked the law to me [Cooper] about the bankruptcy ... all these articles and stuff like that." As a result of filing for joint bankruptcy, neither Cooper nor Caron can obtain credit.

Based on the above findings of fact, the referee concluded that Catarcio had engaged in the unlicensed practice of law by (1) advising Cooper and Caron as to various legal remedies available to them and possible courses of action; (2) taking information from Cooper orally to complete the bankruptcy petition and amendment when the forms being completed were not forms approved by this Court; (3) having direct contact with Cooper and Caron in the nature of consultation, explanation, recommendations, advice and assistance in the provision, selection, and completion of legal forms; (4) inducing Cooper to place reliance upon him in the preparation of his bankruptcy forms; (5) advising Cooper and Caron to file a joint bankruptcy petition when they were not married in contravention of 11 U.S.C. § 302(a), which states that joint bankruptcy petitions are filed by a debtor and the debtor's spouse, and by advising Caron to fraudulently sign her name as "Cooper" even though she told him that she was divorced from Cooper and that her legal name at the time was Caron (6) offering "Free Consultation" in advertising his legal forms preparation service in that it holds him out as able to provide legal services in the nature of consultation and because it goes beyond the limitations placed on nonlawyer advertising by offering more than secretarial and notary services and selling legal forms and general printed materials; and (7) by using the designation "J.D." on his business card in conjunction with his offer of the preparation of legal forms and the depiction of the Scales of Justice.

After arriving at the above conclusions, the referee recommended that this Court find that Catarcio engaged in the unlicensed practice of law based on his conduct in the preparation of Cooper and Caron's joint bankruptcy petition, as well as the manner in which Catarcio advertised his legal forms preparation service. The referee then recommended that Catarcio be enjoined from the unlicensed practice of law and taxed for the costs of these proceedings. Catarcio filed objections to the referee's report, essentially raising the same arguments that he raised in his initial motion to dismiss, and the Bar filed a response. We approve the report of the referee. ¹

A referee's findings of fact are presumed correct and will be upheld unless clearly erroneous and lacking in evidentiary support. See, e.g., Florida Bar v. Hughes, 697 So.2d 501, 503 (Fla.1997); Florida Bar v. Seldin, 526 So.2d 41, 43-44 (Fla.1988). The party seeking review in a proceeding concerning the unlicensed practice of law bears the burden of showing that the referee's findings are clearly erroneous and unsupported by the record. See, e.g., Hughes, 697 So.2d at 503; Florida Bar v. McClure, 575 So.2d 176, 177 (Fla.1991). Unless that burden is met, the referee's findings will be upheld on review. See Hughes, 697 So.2d at 503. In this case, Catarcio has failed to meet his burden of showing the referee's findings of fact to be clearly erroneous or unsupported by the record. Consequently, we find that the referee's findings of fact are supported by competent, substantial evidence. See, e.g., Florida Bar v. MacMillan, 600 So.2d 457 (Fla.1992).

We also approve the referee's conclusions and recommendations. This Court has issued numerous decisions proscribing the type of conduct engaged in by Catarcio. See Florida Bar v. Davide, 702 So.2d 184 (Fla.1997) (adopting uncontested referee's report finding nonlawyers engaged in unlicensed practice of law by, among other things, advising persons regarding bankruptcy exemptions); Florida Bar v. Warren, 655 So.2d 1131, 1132-33 (Fla.1995) (enjoining nonlawyer from, among other things, counseling persons as to "the advisability of their filing for protection under the United States bankruptcy laws"); Florida Bar v. Schramek, 616 So.2d 979, 984 (Fla.1993) (finding nonlawyer engaged in unlicensed practice of law in many areas, including bankruptcy, by providing services "which require[d]...