The Florida Bar v. Massari, SC01-724.

• Decision Date: 31 October 2002
• Docket Number: No. SC01-724.,SC01-724.
• Citation: 832 So.2d 701
• Parties: THE FLORIDA BAR, Complainant, v. Domenic L. MASSARI, III, Respondent.
• Court: Florida Supreme Court

832 So.2d 701

THE FLORIDA BAR, Complainant, v. Domenic L. MASSARI, III, Respondent.

No. SC01-724.

Supreme Court of Florida.

October 31, 2002.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Brett Alan Geer, Assistant Staff Counsel, and Thomas Edward DeBerg, Assistant Staff Counsel, Tampa, FL, for Complainant.

John A. Weiss of Weiss & Etkin, Tallahassee, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Domenic L. Massari, III. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendation that Massari be disbarred for misconduct, including the misappropriation of client funds.

FACTS

The Florida Bar filed a complaint against Domenic L. Massari, III, alleging that he violated several Rules Regulating the Florida Bar in his handling of a client's funds. After a hearing, the referee issued a report making detailed findings.

Massari represented Mr. Martinez and his Florida corporation in a civil case, which involved a contract dispute over money owed for a residence that Martinez's corporation built for Dr. and Mrs. Steen. Martinez paid Massari $7000 in fees before the case settled. On February 14, 2000, the case settled at mediation with the Steens agreeing that Martinez's company would receive $30,000 from funds held in escrow by First American Title Insurance Company. Martinez and Massari agreed that, upon receipt of the $30,000, Massari would receive an additional $5000 in legal fees, plus any costs, to conclude the representation. The Steens' counsel provided Massari with a blank "Satisfaction and Release of Lien," to be signed by Martinez to effectuate the agreement. Massari's longtime secretary, Judith Hebert, notarized the satisfaction and release of lien, attesting that Martinez had affixed his signature to it on March 8, 2000. However, the referee found that this document was forged because "[s]omeone other than Ronald Martinez signed Mr. Martinez's name to the Satisfaction and Release of Lien." The referee specifically found that "Martinez did not sign the Satisfaction and Release of Lien on March 8, 2000; moreover, at no time did Mr. Martinez grant any power of attorney to respondent, nor did he otherwise authorize respondent to sign any legal document in his stead."

On March 13, Massari traveled to First American Title Insurance Company and presented the forged satisfaction and release of lien to office manager Donna Durbin. She accepted the document Massari presented and gave him a check for $30,000 payable to Martinez's corporation. Although the check did not identify Massari as a payee, Massari then endorsed and negotiated the check and deposited the funds into his client trust account on the day he received it, March 13. Massari did not notify Martinez of his receipt of the funds.

Shortly thereafter, Massari made five separate disbursements that he admitted were for his own personal use or benefit, encompassing the entire $30,000: (1) on March 13, he disbursed $7,238.30 as his "fee" for the Martinez representation; (2) on March 16, he disbursed $4500 to himself; (3) on March 24, he disbursed $9,711.70 from the Martinez ledger account to another client ledger account, ostensibly to refund fees paid to him previously by another client; (4) on March 28, he disbursed $7800 to himself; and (5) on March 30, he disbursed the remaining $750 to himself. The referee found that Martinez was entitled to receive the funds in March 2000, when Massari received them. Massari never accurately advised Martinez of his use and disbursement of the funds.

Because Martinez did not receive his settlement proceeds in a timely manner, Martinez questioned Massari about the funds. Martinez was not satisfied by Massari's response, so in May 2000, Martinez discussed the situation with his friend, attorney Larry Rardon. At Rardon's suggestion, Martinez called the title company holding the money, First American Title Insurance Company. In a phone conversation, escrow assistant Kirby Harlow informed Martinez that his account showed a zero balance because his proceeds had been disbursed back in March. Martinez went to the title company to meet with Durbin and Harlow, who showed him the satisfaction and release of lien that Massari had delivered to the title company. Martinez informed Durbin and Harlow that the notarized signature on the document was not his. They also showed Martinez the negotiated check, and he declared that he had not endorsed or negotiated the check. Durbin notified the Steens' legal counsel of Martinez's declarations. The Steens' legal counsel contacted the Tampa Police Department and The Florida Bar, both of which initiated investigations.

On June 13, 2000, Massari deposited $24,200 back into the client ledger account of Martinez's corporation, paying $24,200 to Martinez and retaining $5800 out of the original $30,000 figure as his fee. Massari or his staff then prepared a letter to the Tampa Police Department, which Massari wanted Martinez to sign. Eventually, after several days of attempting to revise the letter, Martinez reluctantly signed the letter and gave it to the police. The police did not pursue the criminal investigation of Massari's conduct because Martinez said he was satisfied to receive his money and he did not wish to see criminal charges pressed against Massari.

Pursuant to the Bar's investigation, Massari and his counsel met with the Bar's assistant staff counsel in October 2000. At this meeting, Massari presented a document for the first time, titled "Martinez Escrow Instructions" (hereinafter "escrow document"). The document allegedly contained notarized signatures of Massari and Martinez. Massari claimed this notarized document was a grant of authority from Martinez to himself that explained his conduct involving his receipt, possession, and use of Martinez's funds. The referee noted that the escrow document indicated it was signed on February 14, 2000, but the referee specifically found that Martinez never signed the document. Relying on testimony from the Bar's handwriting expert, Ray Green, the referee found that Martinez's signature appearing on the escrow document was a "transposition" (i.e., cut and pasted from another document), of his actual signature from a document titled the "Contractor's Final Affidavit." The referee concluded that the escrow document was a forgery. The referee acknowledged that no direct proof was adduced showing who was responsible for concocting the document, but found that Massari "is the only person who had motive and reason for transposing the signatures." The referee also found that the transposed signature on the escrow document was evidence of a deliberate and knowing act to deceive. The referee recommended that Massari be found guilty of violating the following Rules Regulating the Florida Bar: rule 4-1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); rule 4-1.15(a) (a lawyer shall hold in trust, separate from the lawyer's own property, funds and property of clients or third persons that are in the lawyer's possession in connection with a representation); rule 4-1.15(b) (upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person, and the lawyer shall promptly deliver to the client any funds or other property that the client is entitled to receive); rule 4-3.4(b) (a lawyer shall not fabricate evidence, or counsel or assist a witness to testify falsely); rule 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another); and rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Applying the Florida Standards for Imposing Lawyer Sanctions, the referee found as aggravating factors: (1) dishonest or selfish motive (standard 9.22(b)); (2) pattern of misconduct (standard 9.22(c)); (3) multiple offenses (standard 9.22(d)); (4) submission of false evidence, false statements, or other deceptive practices during the disciplinary process (standard 9.22(f)); (5) refusal to acknowledge wrongful nature of conduct (standard 9.22(g)); and (6) substantial experience in the practice of law (standard 9.22(i)). As a mitigating factor, the referee found the absence of a prior disciplinary record (standard 9.32(a)). As to discipline, the referee recommended that Massari be disbarred for five years. The referee also recommended that Massari pay the expenses incurred by the Bar, which total $8,440.48.

Massari petitioned this Court to review the referee's report, claiming that the referee's findings of fact were not supported because the only direct evidence supporting the Bar's allegations came from Martinez, whose testimony was unworthy of belief. Massari also claims that disbarment is not the appropriate discipline for this case.

ANALYSIS

We first consider whether competent, substantial evidence in the record supports the referee's factual findings and whether those findings support the referee's legal conclusion that Massari misappropriated client trust funds. We note that Massari's stated version of events differs substantially from the facts found by the referee.

Massari claims that the case against him rests entirely on the testimony of Martinez, who is unworthy of belief. Massari states that the Steens' civil case against Martinez was based on Martinez filing a fraudulent contract with a bank for his own financial gain, and that Martinez's credibility is suspect and his word cannot be taken over that of Massari, who has practiced law for twenty-four years without being the subject of a prior disciplinary case. Massari also...