Was Michael Fink Standing his ground? What laws are strict for firing a weapon? Not for an attorney in Florida, are they ABOVE the LAW?

8/11/2019 Was Michael Fink Standing his ground? What laws are strict for firing a weapon? Not for an attorney in Florida, are they ABOVE the LAW?

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TN

T HE

SUPREME COURT

OF

FLORIDA

(Beforea Referee)

T HE FLORIDA BAR,

Complainant,

v.

MICHAEL GORDON FIN K,

Respondent.

]

a

U

M A R 1 4 2 1 2

TAMPAN '.

Case

No.:

SC11-1939

T FB File N o.

2011-10,037

(20C)

REPORT

OF TH

REFEREE

I.

SUMMARY

OF PROCEEDINGS: The

undersigned

was

d uly appointed

as

Refereein these proceedings. On October 6, 2011, T he Florida Bar

filed

its

Complaint

against Respondent.

Theparties

have agreed

to a

C onditional Gu ilty

Plea for Consent Judgment. Any pleadings, notices, motions, orders, transcripts,

andexhibits are forwarded to T he Supreme Court of Florida with this report and

constitute the

record

in

this

case.

T he

following

attorneys appeared as counsel for the parties:

For

The

Florida Bar: Lisa

Buzzetti

Hurley

For T he Respondent: Mark ChristopherMenser

Respondent

is, and at all

times m entioned during this investigation was,

a

member

of The

Flo rida B ar, subject

to the

jurisdiction

and

disciplinary rules

of the

Supreme CourtofFlorida.


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II.

F I N D I N G S

OF

FACT :

I

adopt

the

stipulatedfacts

as set

forth

in the

Conditional Plea

for

Consent Judgment

as my

findings

of

fact,

as

follows:

On

or about June 25,

2010,

Respondent was arrested and

charged withm isdemeanor battery in Case. N o.

10-MM-023427,

in

and for Lee Coun ty, Florida. Respond ent was involved in a physical

altercation with

his now

ex-wife. Respondent

and his

wifewere

separating,andRespondent hadmovedout o f the marital residence.

Respondent

on the night of his

arrest

had gone to the marital

residence,after consuming alcohol earlier that evening,

in an

attempt

totry to reconcile their relationship. Respon dent had a weapon on his

person that discharged during the altercation withoutinjuryto anyone.

Respondentsuffered injuriesas a

result

of thealtercationwithhisthen

wife

and herparamour. Respondent entered intoa 2year clinical

contract voluntarily with FLA on January 26,2011toaddressthe

depressionhe was suffering resultingfrom the separation from his

wife. On orabout February 14 ,2011,Respondent accepted apleaon

simple battery charge, agreeing

to one

(1)year

of

probation.

On or

about February 14, 2011,thecourt entered an

order

withholding

adjudication

andplacing Respondentonprobationfor one (1 )year,

including

a provision that Respondent meet with one of the circuit

court judge s weekly.

HI. RECOMMENDATIONS

AS T O

GUILT:

I

recommend thatRespondent's

Conditional G uilty Plea for Consent Judgm ent be accepted and Respondent be

found guilty

o f

violating

the following

Rules Regulating

T he

Florida Bar: 3-4.3

(Misconduct and Minor M isconduct); and 4-8.4(b) (A lawye r shall not com mit a

criminal

ac t

thatreflects adversely

on the

lawyer's honesty, trustworthiness,

or

fitness as a lawyer in other respects).


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IV. STANDARDS

F OR

IMPOSIN G LAWYER SAN CT ION S:

I

considered

the

following

Standards prior

to

recommending discipline:

2.7 PROBAT ION

Probation is a sanction that allows a lawyer to practice law under specified

conditions.

Probation

can be

imposed alone

or in

conjunction with

any other

disciplinary measure; probation can be imposed as a condition of readmission or

reinstatement.

5.1 FAILURET OM A IN T A IN P ER SO N A L IN T E GR IT Y

5.14 Adm onish m ent is appropriate when a lawye r engages in any other conduct

that

reflects adversely

on the

lawyer's

fitness to

practice law.

V .

CASE LAW:

I

considered

the

following case

law

prior

to

recommending

discipline:

Florida Bar

v .

Bartholf

775So.2d 95 7(Fla.2000): (Public Reprimand and one

year probation ) Bartholf com mitted a battery at a golf course. Bartholf pled guilty

to the

misdemeanor

offense of

battery

and was

placed

on

probation.

T he

following

were aggravating factors: a prior admon ishment in 1993; and substantial

experience

in the

practice

of

law.

T he

followingweremitigating factors: absence

of a

dishonest

or

selfish motive; timely good-faith effort

to

make restitution

or to

rectify the consequencesofm isconduct; full and free disclosure to disciplinary

board or cooperative attitude toward proceedings; interim rehabilitation; and


4/8

remorse. Respondent petitioned for review as to the referee's recomm endation

requiring

an FLA

contract which

the

Court

refused to

require

due to

inconclusive

evidenceof thenecessityforsaid contract.

T he

insta nt case

is

distinguishablefrom Bartholf

in

that Respondent

has no

prior

disciplinaryhistory.

VI. RECOMMEN DAT ION AS T O DISCIPLIN ARY MEASURES T O BE

APPLIED: :

I

recomm end that

the

discipline agreed

to in the

Conditional Guilty

PleaforConsent Judgmentand set

forth

asfollowsbe accepted as follows:

A . Admonishment to beadm inisteredbyissuanceof theSupreme

Court

ofFlorida Order approving this Report ofReferee accepting theConsent

Judgment.

B . Three

(3 )

year

periodof

probation

during which time Respondent

shall

satisfy

thefollowing conditions:

1) Resp ond ent shall com ply with the terms of his probation in his

criminal

case,

Lee

County

Case

N o. 10-MM-023427.

2) Respondent shall enter into a three-year rehabilitatio n contract with

Florida Lawyers Assistance, Inc. (FLA) consistentwith

the

recommendations of FLA within thirty (30) days of the Supreme

Court's acceptance

of

this consent judgm ent.

3) Respon dent shall consent to open commun ication between all

therapists

an d

expressly waives

any and all

applicable patient/therapist

privileges to the extent

necessary

to provide the Bar with evidence of

his com pliance or noncom pliance with the terms of his FLA contract

and the terms of his p robation.


5/8

4)

Respondent shall provide

FLA

with

the

name, address,

an d

telephone

number

of each physician or other professional treating him, and

herein

authorize F LA to obtain any info rm ation desired from

said

professionals.

5) Respo ndent shall obtain treatment

from

his primary therapist and shall

provide

free and unlimited release of all information concerning his

healthand participation in treatment to FLA.

6) Respo ndent shall reque st his prim ary therapist, as well as anyother

treatingprofessional, no tify

FLA

immediately

of: (a)

failure

to

complywith or progress in treatment;(b) any change of medication;

(c)

discontinuation

of

therapy;

(d)

change

of

treating p rofessional;

(e)

failuretoappearfo r

appointments, continue prescribed medications,

or

cooperate in the therapeutic

process.

7)

Respo ndent shall be responsible for makin g at least one personal

contact per mo nthwithhis monitor in addition to other therapy

sessions recommended

by the

m onitor

o r

other treating

professional(s).

8)

Respondent shall provide his mo nitor with whatever substantiating

documentation

the

monitor

m ay

require

to

assure compliance with

his

FLA

contract.

9)

Responden t shall provide

FLAwith

notification

of an y

changes

in his

physical

or mental health, address, phon e num ber, or emp loymen t.

10)

Respo ndent shall actively participate in a facilitated support group for

professionals

if such a group is available within his geographic

area.

11)

Iftherapeutically

indicated, Respondent shall submit

and pay for

randomdrug/alcohol screens pursuant

to FLA

drug testing protocol.

12)

Respon dent shall participateincon tinuing private and/or group

therapy

as

required

by his

monitor, FLA,

or

other treating physicians

orcounselors.


6/8

13)

Respondent shall imm ediatelynotify

FLA and his

monitor

in the

event

he: (a)

uses

an y

mind

or

mood altering substances w ithout

a

prescription;(b)

is

arrested

for or

charged with

any

criminal violation;

or(c) has agrievanceor complaint filedagainsthim by TheFlorida

Bar.

14 )

Respo ndent shall reimbu rse T he Florida Bar 250.00 forFLA's

program registration, unless previously provided to FL A, and, in

addition, shallpay to T heFloridaB ar

100.00

p ermonthfo r

monitoring costs,

in

accordance with

a

payment schedule

to be

agreed

upon by the Lawyer R egulation Dep artment of T he Florida Bar.

15) Responde nt shall perfo rm in accordance with each and every term

containedin anycourt order oragreement withthe Lawyer Regulation

Department

of T he

Florida Bar.

16)

Respon dent shall attend the ann ual FLA workshop unless

circumstances (which shall be documented to FLA in writing) make

such

attendance unduly burdensome.

17)

Respondent shall consent to the m odification of his FLA contract

terms as required by his mo nitor and dictated by a change in

circumstances.

Any of the follo wing events shall constitute a violation of probation:

1 A

finding

by a

grievance committee

of

probable cause against

Respondent as to conduct of Respondent committed during the period

of

probation;

2)

Respondent 's

failure to satisfy of any terms and conditions of any

contract with FLA including

failing

to tim ely pay any costs associated

withthe FLA contract; and/or

3)

Respondent 's

failure tosatisfy an y

terms

and

conditions

of the

Conditional

G uilty Plea forConsent Judgm ent.


7/8

VII. PERSONALHISTORY AN DPAST DISCIPLIN ARY RECORD:

Prior

to

recommending

d iscipline pursuanttoRule 3-7.6(m )(l)(D), iconsideredth e

followingpersonal history of Respondent, to wit:

Age: 48

Date admitted to the Bar: October 19,

1989

Prior Discipline: none.

Respo ndent is board certified by T he Florida Bar in civil trial practice.

Mitigating

Factors:

9.32(a)absenceof aprior disciplinary record;

9.32(b)

absence of a dishonest or selfish motive;

9.32(c) personal

or

emotional problems;

9.32(e)full and

free disclosure

to

disciplinary board

or

cooperative attitude

toward proceedings; and

9.32(j) interim rehabilitation.

VIII. S TA TE M E N T OFCOST S AN DM AN N ER IN WHICH COSTS SHOULD

BE TAXED: Ifindthe costs set

forth

in The Florida

Bar's

Mo tion to Assess

Costs

filed

in this cause were reasonably incurred and were not unnecessary, excessive or

improperly authenticated and Respondent stipulated to the payment of such costs

incurredby T heFlorida B ar.


8/8

Itis recomm ended that the costs itemized in T heFlorida

B ar's

Motion to

Assess Costs in the total sum

of 1,315.00

be charged to Respondent and that

interest

at the

statuto ry rateshallaccrue

an d

that should such cost judgm ent

not be

satisfied

withinthirty days

of

said judgm ent becoming final, Respondent shall

be

deemed delinque nt and ineligible to practice law, pursuant toR.RegulatingFla.

Bar 1-3.6, unless otherwise deferred by the Board of Governors of T he Florida

Bar.

Dated this

day of

narch

2012.

JUDY GOLDMAN

Judith Miriam G oldman

Referee

Copies

furnished to :

Lisa Buzzetti Hurley,

Bar C ounsel, T he Florida Bar, 4200 George J.

Bean

Parkway, Suite 2580, T ampa, Florida 33607;

KennethLawrence Marvin, StaffCounsel, The Florida Bar,65 1 E. Jefferson

Street, T allahassee,Florida 32399-2300;

and

M ark Christopher M enser,

Counsel for Respondent, Mike Fink Trial Lawyers,

P.A.,

1614

Colonial Blvd ., FortM yers, FL33907-1130.

Documents

Was Michael Fink Standing his ground? What laws are strict for firing a weapon? Not for an attorney in Florida, are they ABOVE the LAW?