The Florida Bar v. Tobkin

• Court: Florida Supreme Court
• Writing for the Court: Per Curiam
• Citation: The Florida Bar v. Tobkin, 944 So.2d 219 (Fla. 2006)
• Decision Date: 26 October 2006
• Docket Number: No. SC04-1493.,SC04-1493.
• Parties: THE FLORIDA BAR, Complainant, v. Donald Alan TOBKIN, Respondent.

944 So.2d 219

THE FLORIDA BAR, Complainant, v. Donald Alan TOBKIN, Respondent.

No. SC04-1493.

Supreme Court of Florida.

October 26, 2006.

COPYRIGHT MATERIAL OMITTED

John F. Harkness, Jr., Executive Director, Kenneth K, Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, Florida, Ian S. Seitel, Chair, and Mitchell J. Burnstein, Past Chair, Seventeenth Circuit Grievance Committee "H," Lillian Archbold, Ronna Friedman Young, Bar Counsel, Fort Lauderdale, Florida, for Complainant.

Donald Alan Tobkin, M.D., Pro se, Hollywood, Florida.

PER CURIAM.

We review a referee's report finding ethical breaches by Donald Alan Tobkin. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendations as to guilt. However, we disapprove the recommended discipline of a ten-day suspension and instead impose a ninety-one-day suspension.

I. Factual and Procedural Background

The Florida Bar filed a four-count complaint alleging ethical misconduct by Tobkin. The first three counts arose from Tobkin's actions in connection with Rose v. Fiedler, a medical malpractice action in which he represented the plaintiff. The fourth count arose from Tobkin's actions in connection with Bronfman v. LaPayowker, another medical malpractice action in which he represented the plaintiff.

Count 1 of the complaint alleged that Tobkin engaged in objectionable conduct during pretrial discovery in the Rose case, including conduct intended to thwart defense counsel's efforts to take certain depositions, for which the trial judge sanctioned Tobkin to no avail. Count 1 further alleged that Tobkin's misconduct continued during the trial, which ultimately resulted in the trial court striking the plaintiff's witnesses and granting a directed verdict for the defense.

Count 2 alleged that Tobkin referred to the "captain of the ship" doctrine in his opening statement, in violation of a court order directing the parties not to discuss any issue that was the subject of a pending motion. (The doctrine was the subject of a pending motion in limine filed by the defense.)

Count 3 alleged that, after the judge in Rose announced he was going to grant a directed verdict in favor of the defendants, Tobkin filed a second action in a different county on behalf of the same plaintiff against several of the same defendants. The second action was ultimately dismissed by the second trial court as a sham pleading.

Count 4 alleged that Tobkin created a disturbance at Aventura Comprehensive Cancer Center when he went to the center to meet with defense counsel concerning certain of his client's x-rays. Specifically, count 4 alleged Tobkin grabbed records away from opposing counsel, approached the receptionist and demanded to know who had released the records, and screamed at the film librarian, which led the center's personnel to summon security.

Among other things, the referee considered the Fourth District Court of Appeal's opinion in Rose v. Fiedler, 855 So.2d 122 (Fla. 4th DCA 2003), quashed sub nom. Hussamy v. Rose, 916 So.2d 785 (Fla. 2005). In that case, the district court found Tobkin's actions before the trial court contumacious and willfully disobedient, and that they had caused prejudice to the defense. The opinion also noted that the trial court had imposed sanctions on Tobkin on several occasions for discovery abuses, for failing to follow the case management order, and for other misconduct. The Fourth District opinion further noted that Tobkin created a disturbance at a cancer center in May 2002 when he tried to prevent defense counsel from obtaining his client's medical records pursuant to a subpoena. Defense counsel ultimately sought a restraining order. The Fourth District's opinion further noted that the "vast majority of the motions for sanctions, motions to compel, and motions for protective orders . . . were precipitated by [Tobkin's] failure to follow the rules of civil procedure and court orders" and that the "bulk of the defendants' motions were granted." Id. at 123. Finally, the opinion referred to Tobkin's statements to the jury about the "captain of the ship" doctrine, which was subject to a pending motion in limine, about midway through his opening statements, despite the fact the trial judge had instructed the attorneys not to discuss "any matter that was the subject of a pending motion." Id. at 124.¹

The referee found Tobkin guilty of violating Rules Regulating the Florida Bar 4-3.1 (asserting only meritorious claims and contentions), 4-3.4(a) (unlawfully obstructing another party's access to evidence), 4-3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), 4-3.4(d) (making a frivolous discovery request or failing to comply with a legally proper discovery request), and 4-8.4(d) (engaging in conduct prejudicial to the administration of justice). The referee found one mitigating factor—absence of a prior disciplinary record—and three aggravating factors: (1) a pattern of misconduct; (2) multiple offenses; and (3) substantial experience in the practice of law. The referee further recommended that Tobkin be suspended for ten days, ordered to attend The Florida Bar's program on professionalism, and ordered to pay costs.

II. Legal Analysis

Tobkin petitions for review, claiming that (A) the referee erred in denying his motion to dismiss the charges against him for insufficiency; (B) the referee's findings are not supported by competent, substantial evidence in the record; and (C) a ten-day suspension is not warranted. We address each of these in turn.

A. Sufficiency of the Charges

Tobkin argues that the Bar's charges were legally insufficient because they failed to allege, and the Bar failed to prove by clear and convincing evidence, that unbiased and identifiable, qualified individuals comprised the grievance committee which found probable cause in his case. According to Tobkin, this was a mandatory condition precedent.

There is no support for this argument. Rule 3-7.6(h)(1)(B), which sets forth the requisite contents of a Bar complaint, provides: "The complaint shall set forth the particular act or acts of conduct for which the attorney is sought to be disciplined." It does not mention a need to plead anything about the members of the grievance committee who found probable cause. If Tobkin believed one or more members of the grievance committee were biased, the burden was upon him to seek their recusal. In fact, he sought to have three members of the grievance committee in his case remove themselves from the case. One of the members did so. The other two did not. Tobkin does not raise any issue with regard to those two members.

Rule 3-3.4(c) of the Rules Regulating the Florida Bar provides:

No member of a grievance committee shall perform any grievance committee function when that member:

(1) is related by blood or marriage to the complainant or respondent;

(2) has a financial, business, property, or personal interest in the matter under consideration or with the complainant or respondent;

(3) has a personal interest that could be affected by the outcome of the proceedings or that could affect the outcome; or

(4) is prejudiced or biased toward either the complainant or the respondent.

Upon notice of the above prohibitions the affected members should recuse themselves from further proceedings. The grievance committee chair shall have the power to disqualify any member from any proceeding in which any of the above prohibitions exist and are stated of record or in writing in the file by the chair.

Tobkin does not identify which of the grievance committee members he believes should have been recused. Nor does he state any grounds for recusal. Thus, we find that Tobkin's claims that the referee erred in denying his motion to dismiss the charges against him for insufficient evidence are without merit.

B. The Referee's Findings

Tobkin next argues there was insufficient evidence to support the referee's findings. He claims the findings concerning Counts 1 through 3 were based on hearsay language included in the "unauthenticated" opinion of the Fourth District in Rose v. Fiedler, 855 So.2d 122 (Fla. 4th DCA 2003). According to Tobkin, hearsay evidence should not and cannot be considered clear and convincing evidence. Tobkin further argues that the Bar's two live witnesses, who testified concerning the allegations in Count 4, were biased and gave false testimony and affidavits. He asserts that no live testimony supported the referee's finding that he yanked x-rays away from defense counsel.

We disagree with Tobkin's assessment of the sufficiency of the evidence. First, the referee properly relied upon facts included in the Fourth District's opinion in Rose v. Fiedler. Because Bar disciplinary proceedings are quasi-judicial rather than civil or criminal, the referee is not bound by the technical rules of evidence. Consequently, a referee has wide latitude to admit or exclude evidence, see Fla. Bar v. Rotstein, 835 So.2d 241, 244 (Fla.2002); Fla. Bar v. Rendina, 583 So.2d 314, 315 (Fla.1991), and may consider any relevant evidence, including hearsay and the trial transcript or judgment in a civil proceeding. See Fla. Bar v. Vining, 707 So.2d 670, 673 (Fla.1998); Fla. Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986). A referee's decisions about the admissibility of evidence will not be disturbed absent an abuse of discretion. Rotstein, 835 So.2d at 244.

Even if the rules of evidence did apply strictly, the referee's consideration of the Fourth District's opinion nevertheless would have been proper. Section 90.201, Florida Statutes (2005), entitled "Matters which must be judicially noticed," provides that a court shall take judicial notice of: "Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States." The opinion in Rose constitutes decisional law. Although the Fourth District...