The Florida Bar v. Germain

• Decision Date: 17 May 2007
• Docket Number: No. SC05-1096.,No. SC05-947.,SC05-947.,SC05-1096.
• Parties: THE FLORIDA BAR, Complainant, v. Mark F. GERMAIN, Respondent. The Florida Bar, Complainant, v. Mark F. Germain, Respondent.
• Court: Florida Supreme Court

957 So.2d 613

THE FLORIDA BAR, Complainant, v. Mark F. GERMAIN, Respondent.

The Florida Bar, Complainant, v. Mark F. Germain, Respondent.

No. SC05-947.

No. SC05-1096.

Supreme Court of Florida.

May 17, 2007.

John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and JoAnn Marie Stalcup, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.

Mark F. Germain, pro se, Leesburg, FL, for Respondent.

PER CURIAM.

We review a referee's report recommending that Respondent Mark F. Germain be found guilty of unethical conduct and suspended from the practice of law for ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained below, we approve the referee's findings of misconduct but disapprove the referee's recommendation of a ninety-one day suspension and instead suspend the Respondent from the practice of law for one year.

PROCEDURAL BACKGROUND

The Florida Bar filed two separate complaints against Germain, which were consolidated and tried together before a referee. Before the hearing, the Bar and Germain entered into a stipulation about the facts. The stipulation established many of the facts alleged in the complaints, as well as other facts not alleged.

The referee filed two separate reports. The first report made factual findings and conclusions of guilt in both cases. The second and final report, issued after a separate hearing on the issue of discipline, contained the findings and conclusions contained in the first report, factual findings not made in the first report, findings concerning aggravating and mitigating factors, and recommendations of discipline. The facts, as found by the referee or as established by the stipulation, are summarized below.

FACTUAL BACKGROUND

Case No. SC05-947

This case arose from a dispute between Germain and Michael C. Norvell concerning ownership of a building called the Lake Law Center (the building) and the employment of James Cardona, who was a paralegal first for Germain and then for Norvell. In November 2002, Germain executed a promissory note for $100,000 for Norvell in exchange for a one-third ownership of the building, where Germain and Norvell operated separate law firms. In April 2003, Norvell offered to purchase Germain's interest for $100,000. Germain rejected the offer.

In March 2004, Germain fired Cardona, his paralegal. The following month, Norvell increased his offer for Germain's interest in the building to $140,000. He also offered, in writing, to sell his two-thirds share to Germain for $280,000. Germain tentatively accepted the offer to purchase Norvell's interest, but was unable to obtain financing.

That same month, on April 17, Germain filed a police report alleging that Norvell had physically attacked him. The officer reported seeing a "large contusion on Mr. Germain's arm along with several slight abrasions." On April 19, Norvell entered one of the offices in the building, removed Germain's files, and sat behind the desk and in front of the computer. Germain and Norvell disputed ownership of that office. That same day, Cardona reported to work at the building, as Norvell had hired him. Cardona and Germain argued. Germain physically escorted Cardona off the premises.

The next day, April 20, Germain delivered a "no trespass" warning to Cardona's mother. Germain placed a lock on the door to the disputed office and placed a no-trespass warning on the door. The following day, Norvell removed the door from its hinges and entered the office. Germain called the police, who responded. Germain accused Cardona of trespassing even though he knew Cardona had Norvell's permission to be there and that Norvell owned two-thirds of the building. Germain then filed against Norvell a Petition for Injunction for Protection against Repeat Violence (Norvell Petition). In it, Germain swore that Norvell had a "hand gun with ammunition in our office." The court entered a temporary injunction against Norvell.

Germain also filed against Cardona a Petition for Injunction for Protection against Repeat Violence (Cardona Petition). In it, Germain alleged that "Cardona is stalking me and is trying to sabotage my law practice." The petition did not allege any acts of violence or repeat violence by Cardona, as those terms are defined in section 784.046(4)(a)-(b), Florida Statutes (2004), rendering the petition meritless. Cardona responded by filing against Germain a Petition for Injunction for Protection against Repeat Violence (Germain Petition).

A week later Norvell filed a suit for partition of the building and other relief (Partition Action). Germain filed an emergency motion in which he swore that "Norvell is also a convicted felon and Germain has personally observed Norvell handle a loaded pistol in the office."¹

On June 18, 2004, Germain and Norvell entered into a settlement agreement in the Partition Action. Germain agreed to withdraw the Norvell Petition and to execute an affidavit about the firearm allegation (June 18 Affidavit). The June 18 Affidavit stated: "after some thought, I recall that the pistol was actually in possession of the office paralegal, Rebecca S. Skipper and not Michael C. Norvell." It also stated: "At no time, was the gun ever in Norvell's office or in Norvell's possession" and "[t]hat sometime in 2001 Rebecca S. Skipper removed the gun from the office." Germain signed it under oath.

A few days later, Cardona filed a motion to dismiss the Cardona Petition. The motion also asked the court to award him $30,390 in attorney's fees as a sanction against Germain for filing a frivolous petition. The court held a hearing on the motion. Germain subpoenaed the police officer who took Germain's trespassing complaint, but the court would not allow the officer or Germain to testify. The court did allow Germain to proffer the testimony. The court dismissed the petition, finding that it "does not allege facts supporting an injunction for protection against repeat violence, and the facts proffered by petitioner failed to establish a basis for such an injunction. There was no evidence of violence or imminent fear of violence by respondent toward petitioner."

On July 1, 2004, Norvell paid Germain $140,000 for his one-third share of the building. Two weeks later, the court entered an amended order dismissing the Cardona Petition, denying Germain's motion for reconsideration, and granting Cardona's motion for sanctions. The court found Germain's claims were "so clearly devoid of merit both on the facts and the law as to be completely untenable."

A week later Germain filed a motion to disqualify the judge in the Cardona Petition case. The motion made sworn allegations that the judge should be disqualified, in part, because of a conflict of interest presented by his relationship with Lennon Bowen, an attorney, and Bowen's relationship with Cardona. Two days later he filed a motion for reconsideration of the Cardona Petition's dismissal, arguing the dismissal was improper without an evidentiary hearing. Germain swore the Cardona Petition was not frivolous because "convicted felon Michael C. Norvell's possession of a gun gun [sic] in the office is not frivolous."

Seven months later, in March 2005, Germain again moved the trial court to set aside the order dismissing the Cardona Petition. The motion alleged that the judge who dismissed the petition, who was no longer presiding over the case, had been Chief Assistant State Attorney when Germain sued the State Attorney years before and that the judge, as an assistant state attorney, prosecuted Germain in a contempt proceeding a few years later. According to Germain, Bowen, who had represented Cardona in prior proceedings, was the judge's campaign manager when the judge dismissed the petition. Germain also alleged the judge had solicited a campaign contribution from him while the petition was pending and that the solicitation was "inappropriate, if not illegal." In fact, Bowen was not the judge's campaign manager and never represented Cardona. The solicitation was a mass-mailed invitation to a fund-raising event mailed by a host committee, not the judge.

In several pleadings, in hearings before the trial court and the referee, and in his brief filed in this Court, Germain referred to Norvell as "a convicted felon," "cunning," "devious," and "diabolical." He accused Norvell of killing an elderly client and threatening to kill him. Germain referred to Cardona as "a fugitive" and accused him of trespassing, stalking, and stealing.² He described them as "two convicted criminals vouching for each other."

The referee found "that no reasonable person would have feared that Norvell would kill, and that no reasonable person would have had a fear that would justify giving a false statement under oath." He also found the violence between Norvell and Germain had declined over time and that Germain had willingly remained in the space-sharing arrangement with Norvell.

Case No. SC05-1096

The second Bar complaint arose from Germain's actions in State v. Guerreo, No. 2004-CF-2140 (Fla. 5th Jud. Cir. Oct. 26, 2004) (order of contempt). Germain represented the defendant in a proceeding in September 2004. During that proceeding, the judge warned Germain that he was going to cite Germain for contempt if he continued to interrupt him. Despite the warning, Germain interrupted twice more. The judge cited him for two counts of direct criminal contempt. After a hearing, the judge found Germain guilty of two counts of contempt and fined him $100. Germain paid the $100, but filed a motion for reconsideration. The trial judge dismissed the order of contempt, but refused to order the refund of Germain's $100 fine.

RULE VIOLATIONS

The referee concluded that Germain's conduct violated rule 4-3.1 (failing to assert only meritorious claims and contentions), rule 4-3.3(a)(1) (making a false statement of material fact or law to a...