The Florida Bar v. Pavlick, 67793

• Decision Date: 02 April 1987
• Docket Number: No. 67793,67793
• Citation: 504 So.2d 1231,12 Fla. L. Weekly 157
• Parties: 12 Fla. L. Weekly 157 THE FLORIDA BAR, Complainant, v. Andrew PAVLICK, Respondent.
• Court: Florida Supreme Court

Page 1231

504 So.2d 1231

12 Fla. L. Weekly 157

THE FLORIDA BAR, Complainant, v. Andrew PAVLICK, Respondent.

No. 67793.

Supreme Court of Florida.

April 2, 1987.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Patricia S. Etkin, Bar Counsel, Miami, for complainant.

Andrew Pavlick, Miami, in pro. per.

BARKETT, Justice.

This disciplinary proceeding is before us on complaint of The Florida Bar and the referee's report. The Florida Bar has filed a petition for review, contesting the referee's findings and recommended discipline of a two-year suspension with automatic reinstatement. We have jurisdiction. Art. V, § 15, Fla. Const. We adopt the findings and recommendations of the referee with the modification that respondent be required to submit proof of rehabilitation prior to reinstatement.

On June 19, 1984, Pavlick was indicted in the Eastern District of Michigan for conspiracy to import marijuana in violation of 21 U.S.C. § 963 (1981), and conspiracy to possess with intent to distribute and distribution of marijuana in violation of 21 U.S.C. § 846 (1981). On October 26, 1984, Pavlick entered an "Alford" ¹ plea in which he pleaded guilty to accessory after the fact to a misprison of a felony ² in violation of 18 U.S.C. § 3 (1981). On January 4, 1985, Pavlick was adjudicated guilty of the offense charged, fined $250, and sentenced to one year in custody, to be released as if on parole after serving one-third of the term.

As a result of his felony conviction, Pavlick was suspended from the practice of law by order of this Court dated April 24, 1985. Thereafter, The Florida Bar initiated this disciplinary action seeking disbarment.

According to the referee's report, the facts underlying the plea and conviction were as follows: In June 1979, Pavlick was hired to defend three persons who had been arrested in New Orleans, Louisiana, in connection with a marijuana importation scheme. Pavlick retained as co-counsel Louisiana attorney Louis B. Merhige. All three defendants were convicted and sentenced to prison terms. (Subsequently, two of the defendants had their convictions overturned.) Following their conviction, a grand jury was convened in New Orleans to have the defendants testify as to the source of the marijuana. In October 1979, the defendants told government officials at a debriefing session, and later the grand jury, that the backer of the smuggling operation was Jose "Iggy" Azpetitia, a known drug figure who had died prior to the debriefing. That story was later discovered to be false.

Sometime in the middle of 1984, the United States attorney in the Eastern District of Michigan began an investigation of Pavlick and Merhige with regard to the Iggy story. Merhige told the grand jury in Michigan that Pavlick fabricated the Iggy story to hide the true backers of the marijuana operation. Merhige testified further that the lie was concocted between Pavlick and Merhige at a meeting in Tallahassee, Florida, on October 13 or 14, 1979. As a result of Merhige's testimony, Pavlick was indicted along with five others on the drug trafficking charge which subsequently led to the "Alford" plea. Merhige apparently traded this testimony for immunity from the pending indictment.

At the hearing before the referee, Pavlick testified at length to the circumstances which led to the "Alford" plea. Pavlick testified that he did not meet Merhige in Tallahassee on October 13 or 14, 1979, and that he never conspired to get the defendants to lie to the grand jury. Pavlick said that he did attend the debriefing in New Orleans on October 18, 1979, where he heard for the first time that his clients had some connection with Iggy. Pavlick did not discover the falsity of the Iggy story until the middle of 1984, just prior to his indictment. When questioned by government officials at that time, Pavlick denied having been at the October 13-14 meeting, denied telling his clients to lie, denied knowing the Iggy story was fabricated, and offered to submit to a polygraph exam.

The FBI declined Pavlick's offer to take a polygraph. The referee, however, did allow the results of a polygraph test to be introduced at the hearing below. That exam bore out Pavlick's testimony. Pavlick stated further that Merhige refused to take a polygraph test.

Pavlick also testified that he agreed to plead to the lesser charge in large part because of pressure from his wife. Although denying the charge against him, he concluded that his interests and those of his family (his wife and three little children) required the entry of a plea to avoid the stress of further proceedings and the risk of greater punishment (up to ten years imprisonment). Following the plea hearing, Pavlick continued to protest his innocence and dispute the underlying facts of the offense with which he was charged through letters written by his attorney in Michigan to the United States District Judge who sentenced him.

Based on the foregoing testimony, the referee recommended that Pavlick be found guilty of violating article XI, Rules 11.02(3)(a) and (b) of the Integration Rule of The Florida Bar. ³ The referee stated that he accepted Pavlick's testimony that he submitted to an "Alford" plea rather than go to trial because of his family. He also found that Pavlick has no prior disciplinary convictions, that he has been an exemplary father and family man, and that he has participated in community activities. Based on these factors, the referee recommended that Pavlick be suspended from the practice of law for a period of two years from the date of the conviction with automatic reinstatement at the end of the period of suspension.

In its petition for review, The Florida Bar raises four issues for our consideration. First, the Bar argues that the referee erred in permitting Pavlick to go behind his conviction to assert his innocence. Relying on The Florida Bar v. Vernell, 374 So.2d 473 (Fla.1979), and The Florida Bar v. Wilson, 425 So.2d 2 (Fla.1983), the Bar argues that Pavlick does not have the right to a trial de novo before the referee and that his guilt is conclusively established by his conviction pursuant to article XI, Rule 11.07(4) of the Integration Rule of The Florida Bar. ⁴

We agree with the Bar that ordinarily it is not for the referee or for this Court to decide whether or not a lawyer is guilty of the offenses of which he or she has been convicted. However, we believe the Bar has misperceived the findings and conclusions of the referee. There is no question that the referee did not attempt to retry the respondent's felony case. To the contrary, notwithstanding his reservations, the referee specifically found respondent guilty of the allegations charged:

I recommend that the Respondent be found guilty and specifically that he be found guilty of Article XI Rules 11.02(3)(a) and (b) Integration Rules of the Florida Bar as Mr. Pavlick, in fact, pled to a felony charge as recited above. There is great question in my mind concerning the background of this plea under the circumstances enumerated above.

The issue presented here is whether an attorney, in a disbarment proceeding based on a felony conviction, may offer in mitigation evidence of the circumstances surrounding an "Alford" plea. We have already answered that question in the affirmative. In State ex rel. Florida Bar v. Evans, 94 So.2d 730 (Fla.1957), which involved a conviction of income tax evasion based on a plea of nolo contendere, we held that:

[I]n a disbarment proceeding based on conviction of a crime, the proof of conviction and an adjudication of guilt are sufficient to establish a prima facie case for disciplinary action. Due process, however, requires that the accused lawyer shall be given full opportunity to explain the circumstances and otherwise offer testimony in excuse or in mitigation of the penalty.

....

We are of the view that when a lawyer is found guilty of a felony the adjudication of guilt is sufficient to justify setting in motion the disciplinary process. It may not, of itself, always prove him unfit to practice law. However, when not adequately controverted or explained after a full and fair hearing, the judgment of guilt may then constitute the basis for disciplinary action. [Citations omitted, emphasis added.]

Id. at 735. See The Florida Bar v. Lancaster, 448 So.2d 1019, 1022 (Fla.1984) (important factor is not whether there has been an actual adjudication of guilt but whether attorney has been given chance to explain circumstances surrounding plea of nolo contendere and otherwise contest the inference that he engaged in illegal conduct); The Florida Bar v. Fussell, 179 So.2d 852, 854 (Fla.1965) (due process requires that a lawyer be given an opportunity to explain the circumstances and to offer testimony in excuse or in mitigation of the penalty).

Going behind the conviction in this situation clearly does not involve a "trial de novo." Consistent with his "Alford" plea, respondent presented his version of the underlying case and his reasons for the plea. The imposition of discipline without affording the accused an opportunity to explain under these circumstances would violate due process. We conclude, therefore, that the referee did not err in permitting Pavlick to present...