The Florida Bar v. Greene

• Decision Date: 16 March 2006
• Docket Number: No. SC04-1595.,SC04-1595.
• Citation: 926 So.2d 1195
• Parties: THE FLORIDA BAR, Complainant, v. Richard Phillip GREENE, Respondent.
• Court: Florida Supreme Court

926 So.2d 1195

THE FLORIDA BAR, Complainant, v. Richard Phillip GREENE, Respondent.

No. SC04-1595.

Supreme Court of Florida.

March 16, 2006.

COPYRIGHT MATERIAL OMITTED

John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, Alan Anthony Pascal, Bar Counsel and Eric Montel Turner, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.

Kevin P. Tynan of Richardson and Tynan, P.L.C., Tamarac, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Richard Phillip Greene. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact, recommendations as to guilt, and recommended discipline. We disbar Greene for five years, effective, nunc pro tunc, April 1, 2004.

1. Facts

A federal grand jury issued a five-count indictment charging attorney Richard Phillip Greene and others with the following felonies: Count 1, conspiracy to commit mail fraud and securities fraud; Count 2, mail fraud; Count 3, mail fraud; Count 4, securities fraud; and Count 5, securities fraud. Greene pled guilty to Count 5, and the remaining counts were dismissed. The federal court approved the plea agreement and Greene was convicted as charged in Count 5. Based on his conviction, this Court summarily suspended Greene for three years, see R. Regulating Fla. Bar 3-7.2 (providing for the summary suspension of an attorney convicted of a felony under applicable law), and The Florida Bar (the Bar) filed a two-count complaint alleging that Greene had committed ethical violations based on the following offenses: Count 1, securities fraud and trust account violations; and Count 2, mail fraud. The Court referred the matter to a referee. Greene filed a motion to dismiss, which was denied, and the Bar filed a motion for summary judgment, which was granted.

The referee conducted a hearing on the issue of sanctions and made the following findings of fact:

1. Respondent was suspended by the Court on April 1, 2004, as a result of pleading guilty to his participation in a criminal conspiracy to commit securities fraud and mail fraud.

2. For a three year period from August 1999 to August 2002, Respondent acted as the securities counsel for MovieO Network, Inc. ("MovieO") and its controlling shareholder, Walter "Art" Dorow.

3. During that three-year period of time, Respondent agreed that a $250,000 undisclosed bribe or kickback would be paid to an undercover FBI agent, posing as a foreign mutual fund manager and using the name of Michael Patterson, so the agent would induce the mutual fund to buy approximately 200,000 free-trading shares of MovieO stock at $2.50 per share for a total cost of $500,000.

4. Respondent also agreed to pay various kickbacks to two cooperating witnesses involved in the transactions.

5. Respondent conducted a $20,000 "test" trade in order to facilitate the fraudulent conduct.

6. Because of Respondent's involvement in the securities fraud scheme, The Florida Bar requested Respondent's trust account records, but he failed to provide the Bar with the records as requested.

7. Respondent failed to produce his deposit slips or some form of deposit record.

8. Additionally, Respondent caused to be sent by private and commercial interstate carriers certain documents related to the fraudulent securities transactions thereby committing mail fraud.

Based on the above findings of fact, the referee recommended that Greene be found guilty as follows:

A. I recommend that Respondent be found guilty of violating Rule 3-4.3 [a lawyer shall not engage in misconduct or minor misconduct] of the Rules of Discipline and Rule 4-8.4(b) [a lawyer shall not commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness] and Rule 4-8.4(c) [a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation] of the Rules of Professional Conduct and Rule 5-1.2(b)(2) [a lawyer shall maintain original or duplicate deposit slips clearly identifying the date and source of trust funds received and the client or matter for which the funds were received] of the Rules Regulating Trust Accounts.

The referee made the following recommendation as to disciplinary measures to be imposed:

I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that he be disciplined by:

A. Disbarment with an opportunity to apply for readmission as provided in the Rules.

B. Payment of The Florida Bar's costs in these proceedings.

And finally, in recommending imposition of the above disciplinary measures, the referee took into account the following factors:

A. Personal History of Respondent:

Age: 49.

Date Admitted to the Bar: October 25, 1985.

B. Aggravating Factors:

(1) Prior Discipline:

— (a) April 14, 1997, Admonishment, The Florida Bar file no.1996-51,548(17H) [admonishing respondent for minor misconduct arising from conflict of interest in a stock sale transaction].

—(b) April 1, 2004, Felony Suspension, Supreme Court case no. SC03-2159 [suspending respondent for three years under the felony conviction provision in rule 3-7.2].

(2) Standard 9.22(i) — substantial experience in the practice of law.

C. Mitigating Factors:

(1) Standard 9.32(g) — evidence of good character and reputation.

Greene petitions for review, claiming that the referee erred in denying his motion to dismiss and in granting the Bar's motion for summary judgment and that the proper discipline in this case is a two-year suspension, not disbarment. The Bar, on the other hand, asks the Court to approve the referee's report in all respects.

2. Motion to Dismiss

A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues, and the allegations of the complaint must be taken as true and all reasonable inferences therefrom construed in favor of the nonmoving party. See, e.g., Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla.1983) ("For the purposes of a motion to dismiss. . . allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff."). Dismissal may be based on various grounds, including failure of the complainant to abide by the applicable rules of procedure. See, e.g., Fla. Bar v. Rubin, 362 So.2d 12 (Fla.1978). A ruling on a motion to dismiss based on a pure question of law is subject to de novo review. See, e.g., Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000) ("A trial court's ruling on a motion to dismiss based on a question of law is subject to de novo review.").

Generally speaking, a complaint in a Bar disciplinary proceeding must be preceded by a grievance committee's finding of probable cause. See R. Regulating Fla. Bar 3-3.2. There are exceptions, however, see R. Regulating Fla. Bar 3-3.2(b) (listing several exceptions to the probable cause requirement), and specifically, rule 3-7.2(i) provides:

(2) Conclusive Proof of Probable Cause. A determination or judgment of guilt, where the offense is a felony under applicable law, shall constitute conclusive proof of probable cause and The Florida Bar may file a complaint with the Supreme Court of Florida . . . without there first having been a separate finding of probable cause.

R. Regulating Fla. Bar 3-7.2(i)(2).

In the present case, Greene contends that the referee erred in denying his motion to dismiss. Although he concedes that no prior finding of probable cause was required as to the securities fraud charge in Count 1 of the Bar's complaint, he claims that the complaint was flawed because it was not preceded by a grievance committee's finding of probable cause as to the trust account charge in Count 1 and the mail fraud charge in Count 2. We disagree. Greene pled guilty to the securities fraud charge in Count 5 of the federal indictment and the federal court convicted him of that offense. Count 5 of the indictment "realleged and incorporated" the factual predicate set forth in Count 1 of the indictment, and that factual predicate addressed both the trust account charge and the mail fraud charge as set forth in the Bar's complaint. Because Greene was convicted on the securities fraud charge and because he admitted the allegations in the indictment as to the other two related charges, no prior finding of probable cause was required as to those related charges prior to the filing of the Bar's complaint. We approve the referee's denial of Greene's motion to dismiss.

3. Summary Judgment

Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings, and summary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law. See, e.g., Fla. Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003) ("[A] referee . . . has the authority to enter summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."). A ruling on a motion for summary judgment is subject to de novo review. See id. at 877 ("[T]he standard of review on summary judgment orders is de novo.").

In the present case, Greene contends that the referee erred in granting the Bar's motion for summary judgment. Although he concedes that his criminal conviction constitutes conclusive proof of guilt as to the securities fraud charge in the Bar's complaint, he contends that genuine issues of material fact exist as to the trust account charge and the mail fraud charge. We disagree. First, as to the trust account charge, rule 5-1.2(b) addresses minimum trust account records and provides as follows in relevant...