The Florida Bar v. O'Connor, SC03-1738.
| Decision Date | 19 October 2006 |
| Docket Number | No. SC03-1738.,SC03-1738. |
| Citation | 945 So.2d 1113 |
| Parties | THE FLORIDA BAR, Complainant, v. Andrew James O'CONNOR, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, Arne Carl Vanstrum, Bar Counsel, The Florida Bar, Tallahassee, FL, and Paul H. Amundsen, Chair, Second Judicial Circuit Grievance Committee, Tallahassee, FL, for Complainant.
Andrew James O'Connor, Pro se, Santa Fe, NM, for Respondent.
We have for review a referee's report regarding alleged ethical misconduct by Andrew James O'Connor, an inactive member of The Florida Bar. We have jurisdiction. See, art. V, § 15, Fla. Const.
The Florida Bar filed a complaint charging O'Connor with violating Rules Regulating the Florida Bar 4-3.3(a)(1) (); 4-8.1(a) (); 4-8.4(a) (violating the Rules of Professional Conduct); and 4-8.4(c) (). These charges arose after O'Connor filed an application for a limited law license with the Supreme Court of New Mexico. Following a hearing, the referee issued findings of fact, conclusions of guilt, and a recommendation of discipline. The referee found that O'Connor, who is currently in the status of being inactive for incapacity not related to misconduct, knowingly made a material misrepresentation to the Supreme Court of New Mexico that he was a member in good standing of The Florida Bar and violated the rules with which he had been charged. The referee recommended disbarment. O'Connor seeks review here.
We approve the referee's findings of fact and guilt, but disapprove the recommendation that O'Connor be disbarred. Instead, in our view this matter requires the imposition of a one-year period of disqualification to petition for reinstatement to membership in good standing. This one-year period shall commence on the date this opinion becomes final. After the expiration of one year, O'Connor may petition for reinstatement pursuant to the terms and conditions of Rule Regulating the Florida Bar 3-7.10 and as set forth more fully below.
The underlying facts, as found by the referee and as established by the documents introduced into evidence and O'Connor's testimony during the hearing, established the following sequence of events: O'Connor was admitted to The Florida Bar on November 11, 1990. On April 21, 1992, the Bar petitioned the Court to suspend O'Connor on an emergency basis. The Court granted the petition and suspended O'Connor on April 30, 1992. The order of this Court stated O'Connor was suspended "until further order of this Court."
That same day, O'Connor was involved in an automobile accident which allegedly incapacitated him both mentally and physically. On June 24, 1992, the Court granted the Bar an extension of time in which to file the formal complaint against O'Connor. The Court's order directed the Bar to file the complaint within sixty days of notification that O'Connor was able to participate in the proceedings.
Over one year later, on October 14, 1993, O'Connor, through his attorney, filed a Notification of Ability to Participate and a Motion for Dissolution of Emergency Suspension. The Court denied the motion to dissolve the suspension on November 17, 1993. One month later, on December 15, 1993, O'Connor, again through his attorney, filed a Petition for Placement on the Inactive List for Incapacity Not Related to Misconduct, which the Court granted on January 27, 1994.
The Bar sent O'Connor a copy of The Florida Bar Reinstatement Manual on February 28, 1995, apparently in response to an inquiry by O'Connor. On December 31, 1997, O'Connor contacted the Bar with regard to a return to active status. In October 2001, O'Connor filed a Petition for Removal of Inactive Status with the Bar. The Bar responded on October 31, 2001, by returning his petition and his check, along with another copy of The Florida Bar Reinstatement Manual. The cover letter advised that he was required to petition the Court for reinstatement pursuant to rule 3-7.10 and provided him the name and phone number of the person to contact if any questions arose. The first sentence in the sample Petition for Reinstatement included in the manual provided to O'Connor states: "(Respondent) . . . respectfully files this petition for reinstatement to membership in good standing in The Florida Bar." O'Connor never petitioned for reinstatement under rule 3-7.10.
O'Connor was apparently hired as an assistant public defender in New Mexico in July 2002. At that time there was no change in his Florida inactive status. On January 16, 2003, O'Connor filed an application for a limited law license with the Supreme Court of New Mexico. O'Connor's application stated that a certificate of good standing in Florida was attached. O'Connor attached only a copy of his Florida Bar card, front and back, which showed his status as "inactive," but had not requested nor did he attach a certificate of good standing. The Supreme Court of New Mexico issued a limited license to O'Connor based on his representation that a certificate of good standing was attached, but revoked the license almost immediately when the discrepancy was discovered. The Supreme Court of New Mexico then notified The Florida Bar, which instituted these proceedings.
The referee found O'Connor knew he was not in good standing with The Florida Bar when he applied for a limited license in New Mexico, which conduct violated the rules set forth in the Bar's complaint. The referee ultimately recommended that O'Connor be disbarred.
O'Connor petitions for review of the referee's findings of fact, conclusions of guilt, and recommendation of discipline. O'Connor argues that he was unaware his inactive status designation had the effect of placing him in the category of being "not in good standing" and, thus, he did not knowingly attempt to mislead the Supreme Court of New Mexico in his application for a limited license. This argument is, essentially, a challenge to the sufficiency of the evidence to support the referee's findings that O'Connor knew that he was not a member in good standing when he filed the application and that O'Connor's testimony to the contrary was not credible.
Finding facts and resolving conflicts in the evidence is the responsibility of the referee. See Fla. Bar v. Hooper, 509 So.2d 289, 290-91 (Fla.1987). To successfully challenge a referee's findings before this Court, a 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. See, e.g., Fla. Bar v. Elster, 770 So.2d 1184, 1185 (Fla.2000); Fla. Bar v. Carricarte, 733 So.2d 975, 977 (Fla.1999). The Court defers to the referee's assessment and resolution of conflicting evidence because the referee is in the best position to judge the credibility of the witnesses. See Fla. Bar v. Batista, 846 So.2d 479 (Fla.2003).
O'Connor has failed to establish that there is no evidence in the record to support the referee's findings or that the record evidence clearly contradicts the conclusions. He could not do so because there is competent, substantial evidence that O'Connor knew he was not in good standing. O'Connor communicated with the Bar on at least three occasions between the time he became inactive and the time he filed an application with the Supreme Court of New Mexico. On two of those occasions, the Bar provided him a manual that specifically informed him of the steps required to be returned to membership in good standing. The first sentence of the sample petition included in the manual he received is abundantly clear that only active members are members in good standing. Additionally, when the Bar denied his petition for reinstatement and returned his check, O'Connor was officially notified that there were additional procedures required if he desired a change in status to be returned to the category of a member in good standing.
O'Connor maintains that it was unfair for the Bar to charge him with ethical misconduct because the Bar never directly informed him that he was not "in good standing." In conjunction with that, he argues that the Rules Regulating the Florida Bar are too vague and confusing to have provided him notice that his inactive status resulted in the status of "not in good standing." We disagree with and reject both of these arguments.
Rule 1-3.2, titled "Membership classifications," provides only three classifications of Bar members—members in good standing, conditionally admitted members, and inactive members. These classifications are clear and unambiguous. Subdivision (a) defines "members in good standing" as "only those persons licensed to practice law in Florida who have paid annual membership fees or dues for the current year and who are not retired, resigned, delinquent, inactive, or suspended members." (Emphasis added.) O'Connor was inactive and had not paid annual membership fees or dues for the current year at the time he applied to the Supreme Court of New Mexico. He clearly did not fall within that membership "in good standing" classification, and O'Connor was most certainly aware of the underlying facts which produced that result.
Subdivision (c) defines "inactive" as "only those members who have properly elected to be classified as inactive in the manner elsewhere provided." O'Connor petitioned the Court to be placed on the inactive list for incapacity not related to misconduct, which was granted. He "properly elected to be classified as inactive." His argument that he did not know that the "inactive" category applied to him because he was "inactive for incapacity not related to misconduct"...
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