The Florida Bar v. Martocci, 88180
| Decision Date | 02 October 1997 |
| Docket Number | No. 88180,88180 |
| Citation | 699 So.2d 1357 |
| Parties | 22 Fla. L. Weekly S621 THE FLORIDA BAR, Complainant, v. Henry J. MARTOCCI, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and Rose Ann Digangi-Schneider, Frances R. Brown and Eric M. Turner, Bar Counsel, Orlando, for complainant.
James R. Dressler, Cocoa Beach, for respondent.
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by respondent Henry J. Martocci. We have jurisdiction. Art. V, § 15, Fla. Const. Although we find the conduct involved herein to be patently unprofessional, we approve the referee's report and recommendation that respondent be found not guilty of the formal ethical violations alleged in The Florida Bar's complaint against him.
The Florida Bar filed a two-count complaint against respondent, alleging the following violations:
Count I--Violation of rule of professional conduct 4-8.4(c) ();
Count II--Violation of rule of professional conduct 4-8.4(d) ().
The referee, Judge Cynthia G. Angelos, filed her report on December 5, 1996, after holding a pretrial telephone conference on October 29 and a final evidentiary hearing on November 8, 1996. Judge Angelos recommended that respondent be found not guilty of both allegations, and that each party bear its own costs. The Bar petitioned this Court for review of the referee's report, claiming that based on the undisputed facts, the referee wrongly found respondent not guilty of the allegations. The following facts are from Judge Angelos' report.
Respondent represented the former wife in a child custody and support case. J. Scott Lanford represented the former husband in the same action. Lanford scheduled the deposition of Dr. Bonnie Slade, a psychologist, for Monday, April 24, 1995, at 8:45 a.m. at Dr. Slade's office. Present for the deposition were respondent, Lanford, respondent's client, and her new husband. Two days earlier on Saturday, April 22, Lanford faxed a notice of deposition of Dr. Whitacre to be taken at Lanford's office at 6:30 p.m. on Monday, April 24. Respondent's office was closed on Saturday.
Dr. Slade's deposition was reported by Stephanie McGraw using stenographic notes and a tape recorder. The deposition concluded after approximately fifteen minutes when Dr. Slade advised both attorneys that she had a 9 a.m. appointment. Lanford then stated that the deposition would conclude at a later time, after which Dr. Slade left the room. Lanford then addressed respondent, saying, "You are aware we have a deposition of Dr. Whitacre in my office tonight." When respondent stated that he was not aware of the deposition, Lanford replied,
After leaving the room, respondent approached Lanford from the rear, put his hand on his shoulder, and said to him, "F___ you." Lanford replied, "I'm sorry, what did you say?" Respondent then called Lanford "A___hole," whereupon Lanford said, "Say it again." After respondent repeated the epithet, Lanford advised Ms. McGraw, the court reporter, to include the post-deposition comments in the transcript to be presented to the trial court. Ms. McGraw had allowed her tape recorder to continue during the parties' exchange, but only picked up the term "a__hole." Dr. Riebsame, a psychologist working in the same office as Dr. Slade, testified before the grievance committee that he witnessed the confrontation between the two attorneys and that respondent either pushed or pointed at Lanford's chest.
Ms. McGraw and Lanford testified that while they were in the parking lot subsequent to Dr. Slade's deposition, respondent said words to the effect of, "Hey looney, when did you send the subpoena?" McGraw also testified that just before Dr. Whitacre's deposition that evening, respondent pointed his finger at her and said to his client, "I'm going to get that woman if it's the last thing I do." Respondent objected to McGraw's presence as the court reporter for Dr. Whitacre's deposition based on his contention that she and Lanford had fabricated a portion of Dr. Slade's deposition taken that morning. Respondent testified that the portion he was referring to were those post-deposition comments which McGraw included in the deposition transcript. At the beginning of Dr. Whitacre's deposition, respondent stated on the record that McGraw had notarized a partially false and fraudulent transcript of statements never made. Respondent later testified that he was again referring to statements never made during the course of the deposition. Respondent subsequently made the same allegation, accompanied by the same qualification, in supplemental objections to Dr. Slade's deposition transcript filed with the trial court.
Respondent later filed a grievance with the Bar against Lanford. In his grievance, respondent stated that at no time either during or after Dr. Slade's deposition did he utter the term "f___ me" as reflected in the deposition transcript. At the time respondent made the comments, he was under stress because of a medical condition and the late scheduled deposition with Dr. Whitacre conflicted with time he needed to spend with his girlfriend's sick mother. Respondent also testified that Lanford accused him of being a liar and conspiring with his client to deny return of her children to her former husband.
In bar discipline cases, an attorney may be found guilty only if the referee concludes that the alleged misconduct was proven by clear and convincing evidence. Florida Bar v. Neu, 597 So.2d 266, 268 (Fla.1992). Further, a referee's findings of fact carry a presumption of correctness which will be upheld on review "unless clearly erroneous or lacking in...
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