The Florida Bar v. Anderson
| Decision Date | 23 February 1989 |
| Docket Number | No. 70827,70827 |
| Citation | 14 Fla. L. Weekly 79,538 So.2d 852 |
| Parties | 14 Fla. L. Weekly 79 THE FLORIDA BAR, Complainant, v. Patricia F. ANDERSON and Frank A. McClung, Respondents. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jan K. Wichrowski, Bar Counsel, Orlando, for complainant.
Richard T. Earle, Jr. of Earle and Earle, St. Petersburg, for respondents.
This Florida Bar disciplinary proceeding is before the Court for consideration of the findings and recommendations of the referee's report. The Florida Bar has filed a petition for review. We have jurisdiction, article V, section 15, of the Florida Constitution, and consider the case pursuant to rule 3-7.6 of the Rules Regulating The Florida Bar. 1
The facts found by the referee parallel those previously reported in Hutchins v. Hutchins, 501 So.2d 722 (Fla. 5th DCA 1987), wherein respondents here were sanctioned for uncorrected misrepresentations to the court. Basically, respondents submitted a brief to the appellate court misrepresenting the facts of a case before the court and making extended argument based on the inaccurate facts. Despite the exposure of this inaccuracy by the opposing party, respondents did not acknowledge the patent misrepresentations, maintaining instead in a written response to a motion for sanctions that the opposing party was attempting to obfuscate and deceive the court. Respondents finally acknowledged the misleading nature of their representations when personally confronted and closely questioned by the court in a hearing on the motion of opposing party for sanctions.
The referee's report recommends that both respondents be found guilty of violating Florida Bar Integration Rule, article XI, Rule 11.02(3)(a) (); Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(5) (); and 1-102(A)(6) (). The referee also recommends that respondent McClung be found guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(4) (). The parties all agree on these findings of guilt and we approve the referee's report in this respect.
The Florida Bar disagrees, however, with the referee's recommendations that respondent Anderson be found not guilty of violating rule 1-102(A)(4), and that both respondents be found not guilty of violating rule 7-106(C)(1). Concerning the recommendation that respondent Anderson be found not guilty of rule 1-102(A)(4), the Bar argues that both respondents were fully involved in the preparation of the brief containing the misrepresentations and that both respondents failed to correct the misrepresentations even though both became aware of their inaccuracy. Respondent Anderson argues that she did not conduct the discovery or the trial and was not personally cognizant of the details on which the misrepresentation was based. In support, respondent McClung urges that he inadvertently misled respondent Anderson when she queried him concerning the events during discovery and trial prior to the preparation of the brief. It is clear that the referee who observed the demeanor of the witnesses found respondent's arguments credible. Because there is some evidentiary support for the referee's conclusion that respondent Anderson was less culpable than respondent McClung, we approve the referee's recommendation of not guilty. The Florida Bar v. Stalnaker, 485 So.2d 815, 816 (Fla.1986).
The Bar also argues that both respondents should be found guilty of violating rule 7-106(C)(1) (). The Bar's position is that this finding of not guilty is inconsistent with the findings of guilt on other charges and that the record shows that both respondents, whatever their initial degree of knowledge, became aware that their representations to the court were contrary to the record on appeal and yet persisted in these representations. Respondents argue that the evidence does not show that they intentionally misstated facts and that the referee's recommendation is supported by the record. We approve the recommendation of the referee. Stalnaker.
The final issue concerns the imposition of discipline. The referee recommends that respondent McClung receive a public reprimand and that respondent Anderson receive a private reprimand. The Bar argues first that respondent Anderson's misconduct was not minor, and that a private reprimand is not the appropriate punishment. We agree. Rule 3-5.1(b) of the Rules Regulating The Florida Bar provides in pertinent part that a private reprimand is not appropriate where the misconduct includes misrepresentation on the part of the respondent. 2 It is uncontroverted that the conduct...
To continue reading
Request your trial
-
The Fla. BAR v. BEHM
...referee's findings of fact because ultimately it is this Court's responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. After reviewing the record in this case, the referee's report, and the briefs before this C......
-
The Florida Bar v. Cox
...the determination of the referee and the evidence presented. While one may agree or disagree with the determination in Florida Bar v. Anderson, 538 So.2d 852 (Fla.1989), in that case, a public reprimand was imposed in connection with conduct intended to mislead and deceive an appellate cour......
-
Fla. Bar v. Petersen
...findings of fact, because it is ultimately the Court's responsibility to determine the appropriate discipline. Fla. Bar v. Anderson , 538 So.2d 852, 854 (Fla. 1989). In addition, the Court's decision to either accept or reject the recommended discipline depends upon whether there is a reaso......
-
Fla. Bar v. Ratiner
...findings of fact because, ultimately, it is the Court's responsibility to order the appropriate sanction. See Fla. Bar v. Anderson , 538 So.2d 852, 854 (Fla. 1989) ; see also art. V, § 15, Fla. Const. At the same time, the Court will generally not second-guess the referee's recommended disc......