The Florida Bar v. Cohen, SC03-2041.
| Decision Date | 07 July 2005 |
| Docket Number | No. SC03-2041.,SC03-2041. |
| Citation | 908 So.2d 405 |
| Parties | THE FLORIDA BAR, Complainant, v. Steven Edward COHEN, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, Adria E. Quintela, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
Hal B. Anderson of Billing, Cochran, Heath, Lyles, Mauro and Anderson, P.A., Fort Lauderdale, FL and Daniel S. Mandel of Mandel, Weisman, Brodie, Griffin and Heimberg, P.A., Boca Raton, FL, for Respondent.
Attorney Steven Edward Cohen contests a referee's report recommending that he be disbarred from the practice of law for ethical misconduct. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained below, we approve the referee's findings of fact and recommendations as to guilt, as well as the recommended discipline. We hereby disbar Cohen from the practice of law.
The Florida Bar filed a complaint against Cohen concerning his 2003 federal conviction for conspiracy. After a final hearing, the referee issued a report making the following findings and recommendations:
On April 15, 2003, the Office of the United States Attorney for the Southern District of Florida filed an Information charging Cohen with the felony of conspiring to structure financial transactions with financial institutions to avoid federal requirements to report transfers of $10,000 or more, in violation of Title 31 of the United States Code. After waiving indictment, Cohen and his criminal defense attorney signed a Plea Agreement in which Cohen agreed to plead guilty to a violation of Title 18, section 371 of the United States Code, the federal general conspiracy statute. The Plea Agreement noted that the amount involved, which Cohen had personally received and concealed, was about $640,000. The agreement also provided that as part of his required performance Cohen or his representative would deliver that sum to the United States Drug Enforcement Agency (DEA). The agreement stipulated that currency in this amount was then in Cohen's custody or control, who had received it from a co-conspirator named Taylor.
The referee found that Cohen's co-conspirator was a major importer of marijuana and, to a lesser degree, a dealer of cocaine. Although Taylor maintained a chain of businesses, which included fireworks retail stores, these were cash-heavy businesses through which Taylor laundered millions of dollars, and drug importation was Taylor's true livelihood. The referee found that Taylor would give cash to Cohen and others for safekeeping in bundles of $10,000 wrapped in plastic. Cohen kept this cash in a safe deposit box in a bank located in the office building where he practiced law. Taylor told a DEA agent that Cohen was very much aware this was drug money. Under the Plea Agreement, the government agreed to recommend that the sentencing court find that Cohen did not know the cash given to him were proceeds of unlawful activity. The government would also recommend a sentence at the low end of the sentencing guidelines range. The referee found that the government was willing to give Cohen favorable treatment because as part of the agreement, immediately upon the federal court's acceptance of the plea and imposition of sentence, Cohen would deliver the $640,000 cash to the government. The referee noted that at the time of his arrest, Cohen knew this money lay in a floor safe at the home of his law partner. The referee found that, instead of voluntarily handing the money over to the government, Cohen used it as a "bargaining chip" to negotiate a favorable plea. The referee noted that the maximum sentence for the crime to which Cohen pled was five years' incarceration followed by three years' supervised release, plus a fine of up to $250,000. Cohen received four months' incarceration, followed by two years of supervised release, beginning with four months of electronic house arrest, and a $20,000 fine. The referee found that these terms were the lightest that could be imposed under the guidelines.
Cohen subsequently informed this Court of his conviction and consented to a felony suspension. We granted the Bar's uncontested Petition for Entry of Order of Suspension and suspended Cohen effective, nunc pro tunc, June 1, 2003. See Fla. Bar v. Cohen, No. SC03-1174, 857 So.2d 197 (Fla. Sept. 11, 2003) (unpublished order).
Based on these facts, the referee recommended that Cohen be found guilty of violating Rules Regulating the Florida Bar 3-4.3 ( that the commission of an act that is unlawful or contrary to honesty and justice may constitute cause for discipline), 4-8.1(a) (), 4-8.4(a) (), 4-8.4(b) (), and 4-8.4(d) ().
In considering the appropriate discipline for Cohen's misconduct, the referee found the following aggravating factors: (1) a dishonest or selfish motive, (2) a pattern of misconduct, (3) multiple offenses, (4) submission of false evidence, false statements, or other deceptive practices during the disciplinary process, (5) a refusal to acknowledge the wrongful nature of his conduct, (6) substantial experience in the practice of law, and (7) indifference to making restitution.
Regarding the finding that Cohen made false statements during the disciplinary proceeding, the referee stated that it "insult[ed] credulity" to suggest that a sophisticated lawyer and real estate investor would believe that over half of a million dollars in cash delivered to him in $10,000 bundles, which he initially stored in a safety deposit box and ultimately transferred to a floor safe, was income from legitimate businesses. The referee noted that the federal presentence investigation report prepared in Cohen's case and the testimony of a DEA agent indicated that Cohen knew that the proceeds were from drug money. Nevertheless, Cohen insisted that he had no idea that these vast sums of money were the fruit of drug dealing, thereby refusing to acknowledge the wrongful nature of his conduct.1
As further evidence of Cohen's dishonesty, the referee noted that at the disciplinary hearing, Cohen insisted he was the only individual who had helped Taylor who was charged with criminal activity. Nevertheless, the referee found that Cohen's criminal defense counsel told the federal sentencing court that a number of individuals pled guilty to holding Taylor's money. In finding that Cohen expressed indifference to making restitution, the referee noted that Cohen refused to turn over the money until the federal court accepted his plea bargain.
In mitigation, the referee found that Cohen had no disciplinary history. The referee also noted that two witnesses testified as to Cohen's good character. These witnesses, one of whom is Cohen's brother-in-law, and both of whom were friends of Cohen's and co-investors with Cohen, Taylor, and Cohen's law partner, testified that Cohen had done a significant amount of pro bono work. Finally, the referee noted other penalties and sanctions had been imposed on Cohen for his criminal actions; however, the referee found that Cohen's brief imprisonment and relatively minimal penalty did not make this a particularly compelling mitigator.
After considering these factors, the referee recommended that Cohen be disbarred for at least five years, that he not be allowed to seek readmission until his civil rights are restored, and that he be required to pay the Bar's costs. Cohen now challenges the referee's findings of fact and recommended discipline.
Cohen essentially raises two issues. First, he argues that the referee improperly considered evidence about the circumstances surrounding his federal conviction. Second, he argues that the referee's recommended discipline of disbarment is too harsh. We address each argument in turn.
Cohen first argues that the referee improperly assessed the evidence surrounding his conviction and, based on this assessment, made factual determinations contrary to those in Cohen's federal plea agreement. Cohen argues that the referee was bound by the stipulation in his plea agreement that he did not know the funds received from Taylor were proceeds of illegal activity. We agree with the Bar, however, that in determining the appropriate discipline, the referee could consider aggravating factors, including Cohen's knowledge of the illicit nature of the cash he concealed for Taylor.
Although a referee may not "go behind" a conviction to determine the attorney's guilt, see Fla. Bar v. Kandekore, 766 So.2d 1004, 1007 (Fla.2000), a referee may consider evidence concerning the circumstances behind a conviction in determining the recommended discipline. In State ex rel. Fla. Bar v. Evans, 94 So.2d 730, 735 (Fla.1957) (emphasis omitted), the Court explained why attorneys may introduce such evidence in disciplinary proceedings:
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