The Florida Bar v. Carricarte

• Decision Date: 08 April 1999
• Docket Number: No. 90,604.,90,604.
• Citation: 733 So.2d 975
• Parties: THE FLORIDA BAR, Complainant, v. Albert L. CARRICARTE, Respondent.
• Court: Florida Supreme Court

733 So.2d 975

THE FLORIDA BAR, Complainant, v. Albert L. CARRICARTE, Respondent.

No. 90,604.

Supreme Court of Florida.

April 8, 1999.

John F. Harkness, Jr., Executive Director and John Anthony Boggs, Staff Counsel, Tallahassee, Florida, and Cynthia Ann Lindbloom, Bar Counsel, Miami, Florida, for Complainant.

Albert L. Carricarte, pro se, Miami, Florida, for Respondent.

PER CURIAM.

We have for review a referee's report finding ethical breaches by respondent, Albert L. Carricarte, and recommending disciplinary measures. We have jurisdiction. Art. V, § 15, Fla. Const.

From December 1991 through December 1994, respondent was employed as in-house counsel for two Florida corporations owned and operated by members of respondent's family. After a formal hearing, the referee found that subsequent to his termination as in-house counsel for the companies, respondent began sending a series of faxed letters to his brother, Michael Carricarte, Sr., the chief executive officer of the companies, which stated respondent's intention to disclose the companies' alleged violations of software copyright laws to the Software Publishers Association and federal authorities, reflected respondent's position that his termination as in-house counsel terminated the attorney-client privilege between himself and the companies, and outlined numerous felonies alleged to have been committed by Michael and others employed by the companies. The referee also found that respondent wrote to the Ohio Department of Insurance suggesting that it investigate a discrepancy in the companies' reporting.

Further, the referee found that following his termination, respondent misappropriated trade secrets from the companies and disseminated these trade secrets to insurance companies, insurance agents, and others with whom the companies had business relationships. Specifically, respondent sent a fax to an insurance agent in Mexico captioned "Mike Carricarte's illegal biggest general agents in Mexico" and which included the names, addresses, and telephone numbers of "Mike Carricarte, Sr.'s principal agents in Mexico." During a hearing in relation to a suit filed by the companies against respondent and a codefendant for stealing confidential trade secrets and breaching their confidentiality agreements with the companies, respondent admitted the confidential nature of this information. The referee also found that at another hearing with respect to the lawsuit between respondent and the companies, respondent stated that based upon his personal knowledge, the companies, the principals, or both had engaged in tax evasion, insurance fraud, conspiracy and other criminal conduct.

Finally, while employed as in-house counsel, respondent handled a real estate closing for the companies and was given approximately $110,000 to hold in trust. The referee found that after his termination, respondent threatened not to return these funds and to sell or reveal a database developed by the companies to competitors unless he received $25,000 and that under duress, the companies gave respondent that amount, which became Respondent's "severance pay."

Based on the above-described findings, the referee recommended that respondent be found guilty of violating rule 4-1.6(a)("[a] lawyer shall not reveal information relating to representation of a client... unless the client consents after disclosure to the client"), rule 4-1.6(e)("[w]hen disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purpose of this rule"), and rule 5-1.1(a)("[m]oney ... entrusted to an attorney for a specific purpose ... is held in trust and must be applied only to that purpose") of the Rules Regulating The Florida Bar. The referee recommended respondent be suspended for ninety days followed by three years' probation and that as a condition of probation, respondent submit to an evaluation by Florida Lawyer's Assistance, Inc. (F.L.A.) and comply with any recommended course of treatment. Respondent sought review of the referee's findings and recommendations.

I. The Referee's Findings of Fact and Recommendations as to Guilt.

Respondent first argues that the referee erred in finding that he threatened to sell or reveal the companies' database unless he was given $25,000 of the money held in trust by him for the companies. In order to successfully attack this finding, respondent must demonstrate "that there is no evidence in the record to support [the referee's] findings or that the record evidence clearly contradicts the conclusions." Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996); see also Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998)

(quoting same). Respondent has not met this burden.

At the formal hearing, respondent's brother, Michael Carricarte, Sr., testified that the $25,000 "severance pay" agreement was extorted. Specifically, he testified and stated in an affidavit that respondent threatened to keep all of the $110,000 held in trust or reveal or sell the companies' database to competitors or both if he was not given $25,000. Michael, Sr.'s son, Michael Carricarte, Jr., also testified and submitted an affidavit to this effect. The testimony of Michael, Sr. as well as that of Michael, Jr. was corroborated to some extent by the testimony and affidavit of Byron Williams, a former employee of the companies.

Respondent essentially argues that Michael, Sr.'s and Michael, Jr.'s statements at the hearing in this case were lies and that, as the severance pay agreement between respondent and Michael Carricarte, Sr. shows, respondent was specifically and legitimately authorized to retain the $25,000 from his trust account.

As is evident from Respondent's argument, his attack on the referee's finding boils down to a question of credibility. However, "[t]he referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect." Florida Bar v. Thomas, 582 So.2d 1177, 1178 (Fla.1991); see also Florida Bar v. Hayden, 583 So.2d 1016, 1017 (Fla.1991)

(stating that where testimony conflicts, referee is charged with responsibility of assessing credibility based on demeanor and other factors). We find no basis in the record for finding that the referee's assessment of credibility in this case was incorrect and therefore uphold the challenged finding.

Respondent next argues that the referee's finding that he revealed confidential information in excess of that necessary for the defense of the litigation between him and the companies is erroneous because none of the circuit or district court judges involved in that litigation found that his defense of the litigation involved any wrongdoing and never referred anything to The Florida Bar for disciplinary action. Notably, however, respondent does not contend that the propriety of his actions in defending that litigation was ever raised during those proceedings or specifically addressed by any of the judges involved.

In any event, rule 3-4.4 of the Rules Regulating The Florida Bar clearly states that "the findings, judgment, or decree of any court in civil proceedings [shall not] necessarily be binding in disciplinary proceedings." Thus, even if the issue had been specifically raised and a judge had specifically found no wrongdoing and refused to refer this matter to the Bar, such action would not prevent the complainant in this case, Respondent's brother, from filing a complaint with the Bar, nor would it prevent the Bar from investigating that...