The Florida Bar v. Kassier, 90,325.
Citation | 730 So.2d 1273 |
Decision Date | 25 November 1998 |
Docket Number | No. 90,325.,90,325. |
Parties | THE FLORIDA BAR, Complainant, v. Andrew Michael KASSIER, Respondent. |
Court | United States State Supreme Court of Florida |
John F. Harkness, Jr., Executive Director, and John A. Boggs, Staff Counsel, Tallahassee, and Randi Klayman Lazarus, Bar Counsel, Miami, for Complainant.
Louis M. Jepeway, Jr. of Jepeway and Jepeway, P.A., Miami, for Respondent.
REVISED OPINION
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by attorney Andrew Michael Kassier, as well as Kassier's cross-petition for review of the total costs assessed against him. We have jurisdiction. Art. V, § 15, Fla. Const. We approve the referee's factual findings and recommendations, but we increase Kassier's suspension from six months to one year in addition to his one-year suspension ordered by this Court in Florida Bar v. Kassier, 711 So.2d 515 (Fla. 1998).
The Florida Bar filed an eight-count complaint against Kassier. Seven of the eight counts charged Kassier with the issuance of eight checks dishonored for insufficient funds and one dishonored because the account on which the check was drawn had been closed. The remaining count charged Kassier with failing to comply with an order of this Court requiring him to respond to a subpoena duces tecum.
The testimony regarding the dishonored checks consisted primarily of Kassier's testimony and that of his former office manager Jon Turner. Kassier hired Turner in August of 1995 after Kassier had represented Turner in a criminal case in which Turner pled guilty of fraud arising out of an insurance fraud scheme. Kassier testified that when Turner began as office manager, Turner would go through the office bills, determine which bills needed to be paid, and deliver prepared checks to Kassier's office for his signature. Kassier further testified that eventually, because of his heavy trial load, he would leave Turner signed blank checks for Turner to pay office bills. Kassier's testimony was corroborated by one of his former employees who testified that she saw him give Turner signed blank checks. Turner, on the other hand, testified that Kassier never gave him a signed blank check. Turner testified that he would print checks on the computer and give them to Kassier to sign. Turner further testified that Kassier reviewed all bank statements regarding law firm accounts, and that Kassier would not get the statements for several weeks after they were received. The referee found Turner's testimony to be not credible. Nevertheless, the referee recommended finding Kassier guilty on three of the eight counts (Counts II, III, and IV).
Count II concerned Kassier's noncompliance with the order to respond to the subpoena duces tecum. The referee recommended finding Kassier guilty of violating rule 4-8.4(c) ( ) and rule 4-8.4(d) ( ) of the Rules Regulating The Florida Bar.
Count III involved Kassier's failure to pay for the storage facility he shared with another attorney to store clients' files. Kassier issued the attorney a check for $290, which the bank returned twice because of insufficient funds. Although Kassier and the attorney resolved the matter, the referee recommended finding Kassier guilty of violating rule 4-8.4(c) and rule 4-8.4(d).
Count IV involved two payroll checks issued to one of Kassier's employees. Both checks were returned to the employee because of insufficient funds, the second one after Kassier had assured the employee he would deposit funds to cover the check. The second check, which included the amount of the first check, remained dishonored at the time of the hearing before the referee. Again, the referee recommended finding Kassier guilty of violating rule 4-8.4(c).
Although the referee recommended finding Kassier not guilty on five of the eight charges, he determined that in many of those instances, Kassier placed Turner in a position to use law firm checks in an inappropriate manner and that third parties were damaged as a result. In the five counts upon which the referee recommended finding Kassier not guilty, the referee found that Turner abused the trust and confidence that Kassier had inappropriately placed in him. Furthermore, in aggravation, the referee found that bad checks were submitted to the Clerk of the Circuit Court and that Kassier never responded to the Bar's request for information concerning the complaints filed. The referee found that the charges on which he recommended a finding of guilt involved cumulative misconduct on similar matters and warranted an enhanced penalty. He also noted that unless measures are imposed, Kassier would continue to engage in this misconduct.
As a result of his findings, the referee recommended the following disciplinary measures:
Neither party contests the referee's factual findings or recommendations as to guilt. However, the Bar challenges the recommended discipline, arguing that Kassier should be disbarred because his omissions, history and lack of judgment show he is unfit to practice law. Kassier challenges the referee's assessment of total costs against him, arguing that the costs should be apportioned between the parties or that each party should bear its own costs because the referee recommended finding him not guilty on five of the eight counts.
A referee's findings of fact are presumed correct unless clearly lacking in evidentiary support. See Florida Bar v. Garland, 651 So.2d 1182, 1184 (Fla.1995)
. This Court is precluded from reweighing the evidence and substituting its judgment for that of the referee if the referee's findings are supported by competent, substantial evidence. See Florida Bar v. Charnock, 661 So.2d 1207 (Fla.1995). After reviewing the referee's report and the evidence presented at the hearing, we find that the referee's factual and guilt recommendations are supported by competent and substantial evidence.
We now address the Bar's request to disbar Kassier. The Bar argues that this Court should disbar Kassier because he has engaged in the dishonest issuance of checks and failure to comply with a court order. See Florida Bar v. Horowitz, 697 So.2d 78 (Fla.1997)
; Florida Bar v. Dubow, 636 So.2d 1287 (Fla.1994); Florida Bar v. Solomon, 589 So.2d 286 (Fla.1991); Florida Bar v. Diaz-Silveira, 557 So.2d 570 (Fla.1990). However, all four of these cases are distinguishable from the facts in the present case because they involve more egregious actions by the attorneys and the attorneys had greater disciplinary histories.
We do find, however, that Kassier's conduct does merit a suspension of one year instead of the six months recommended by the referee. Our scope of review of a referee's recommended discipline is broader than that afforded to findings of fact because this Court has the ultimate responsibility to determine the...
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