IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant, CASE NO. SC08-1911
v. TFB FILE NO. 2007-11,692(13E)
CAROLYN MARIE HOLT,
Respondent. _____________________________________
RESPONDENT’S ANSWER BRIEF AND CROSS PETITION FOR REVIEW
SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 GWENDOLYN H. HINKLE, ESQUIRE Florida Bar No. 83062 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent
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TABLE OF CONTENTS TABLE OF CONTENTS…………………………………………………………...i TABLE OF CITATIONS………………………………………………………….iii SYMBOLS AND REFERENCES………………………………………………..vii STATEMENT OF THE CASE AND FACTS……………………………………..1 STANDARD OF REVIEW……………………………………………………….13 SUMMARY OF THE ARGUMENT……………………………………………..14 ARGUMENT……………………………………………………………………...16
Issue One: Does Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003), imposing a rehabilitative suspension for misconduct involving misrepresentations prejudicing a client’s interests as well as conflicts of interest in unrelated matters and prior discipline, prove that a non-rehabilitative suspension is outside the range of sanctions in the present case given the absence of client harm and extraordinary mitigating factors after consideration of numerous cases imposing public reprimands and short term suspensions for more analogous conduct? ………………………………..16
A. A short-term non-rehabilitative suspension is supported by
existing case law. ……………………………………………17
B. A short-term rehabilitative suspension is supported by the Standards for Imposing Lawyer Sanctions and meets the purposes of lawyer discipline. ………………………………40
Issue Two: Is a misrepresentation that solely pertains to procedural matters and would not have misled a trier of fact on any substantive issue or given an advantage or disadvantage to any party a “false statement of material fact” pursuant to Rule Regulating The Florida Bar 4-3.3(a)? …………….45
CONCLUSION…………………………………………………………………...48 CERTIFICATE OF SERVICE……………………………………………………49
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CERTIFICATION OF FONT SIZE AND STYLE………………………………49
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TABLE OF CITATIONS
CASES Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003)…………………...20-21
Dep’t of Legal Affairs v. District Court of Appeal, 5th District, 434 So. 2d 310 (Fla. 1983)…………………………………………………25
Florida Bar v. Anderson, 538 So. 2d 852 (Fla. 1989)…………………………33-34
Florida Bar v. Batman, 511 So. 2d 558 (Fla. 1987)………………………………23
Florida Bar v. Charles Behm, Case No. SC06-294……………………………….30
Florida Bar v. Sara Blumberg, Case No. SC07-781………………………………30
Florida Bar v. Brake, 767 So. 2d 1163, 1168 (Fla. 2000)………………………...46
Florida Bar v. Brooks, 336 So. 2d 359 (Fla. 1976)…………………………….…24
Florida Bar v. Anna L. Brown, Case No. SC08-255………………………….26, 28
Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008)…………...……26-27, 28, 31, 41
Florida Bar v. Cibula, 725 So. 2d 360 (Fla. 1998)………………………….....27-28
Florida Bar v. Cocalis, 959 So. 2d 163 (Fla. 2007)……………………………….20
Florida Bar v. Cox, 794 So. 2d 1278 (Fla. 2001)………………………….16-17, 21
Florida Bar v. Day, 520 So. 2d 581 (Fla. 1988)………………………………..…22
Florida Bar v. Fatolitis, 546 So. 2d 1054 (Fla. 1989)……………………………..21
Florida Bar v. Feinberg, 760 So. 2d 933 (Fla. 2000)……………………………..19
Florida Bar v. Forrester, 818 So. 2d 477 (Fla. 2002)……………………………..31
Florida Bar v. Steven Howard Goldfarb, SC07-746………………………….29, 30
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Florida Bar v. Hagglund, 372 So. 2d 76 (Fla. 1979)…………………………..23-24
Florida Bar v. King, 174 So. 2d 398 (Fla. 1965)………………………………….24
Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997)……………………..…31-32, 36
Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997)……………………...16, 37-38
Florida Bar v. Julian Stanford Lifsey, SC07-747…………………………………29
Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983)………………………………….43
Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994)………………………………13
Florida Bar v. McLawhorn, 535 So. 2d 602 (Fla. 1988)………………………….21
Florida Bar v. Morse, 587 So. 2d 1120 (Fla. 1991)……………………….36, 37-38
Florida Bar v. Oxner, 431 So. 2d 983 (Fla. 1983)………………………………...34
Florida Bar v. Pearce, 356 So. 2d 317 (Fla. 1978)………………………………..24
Florida Bar v. Poplack, 599 So. 2d 116 (Fla. 1992)……………………….32-33, 34
Florida Bar v. Rose, 607 So. 2d 394 (Fla. 1992)………………………………….36
Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003)………………………16, 38-39
Florida Bar v. Sax, 530 So. 2d 284 (Fla. 1988)…………………………………...22
Florida Bar v. Varner, 780 So. 2d 1 (Fla. 2001)……………………….35-36, 37-38
Florida Bar v. Winter, 505 So. 2d 1337 (Fla. 1987)…………………………..23-24
Florida Bar v. Wohl, 842 So. 2d 811 (Fla. 2003)…………………………...........13 Florida Bar v. Wright, 520 So. 2d 269 (Fla. 1988)……………………………22-23
In re: Amendments to R. Regulating Fla. Bar, 2009 WL 3858062 (Fla. 2009)…..45
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In re Frank 753 So. 2d 1228 (Fla. 2000)………………………………………….25
State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008)………………………………46
RULES REGULATING THE FLORIDA BAR 3-4.2………………………………………………………………………………30
3-4.3…………………………………………………………………….…21, 30, 36
3-7.5(c)(5)…………………………………………………………………………13
Preamble…………………………………………………………………………..45
4-1.3……………………………………………………………………………….27
4-1.4(a)……………………………………………………………………27, 30, 39
4-1.5(a)……………………………………………………………………………30
4-1.7……………………………………………………………………………….39
4-1.7(a)……………………………………………………………………………27
4-3.3………………………………………………………………………………39
4-3.3(a)…………………………………………..……11, 12, 15, 21, 29, 45, 47, 48
4-3.3(a)(1)…………………………………………………………………………45
4-3.4(a)……………………………………………………………………………31
4-4.1(a)……………………………………………………………………………36
4-8.1(a)……………………………………………………………………………39
4-8.4(b)……………………………………………………………………………36
4-8.4(c)………………………………………...11, 21, 27, 28-29, 30, 31, 36, 39, 45
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4-8.4(d)………………………………………………..11, 21, 29, 30, 36, 39, 45, 46
FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS
Preface……………………………………………………………………………25
3.0.……………………………………………………………………………..40-41
6.12……………………………………………………………………………..…32
A.B.A. MODEL RULES OF PROFESSIONAL CONDUCT 3.3(a)………………………………………………………………………………45
FLORIDA STATUTES 732.502(1)(c) (1977)……………………………………………………………...21 817.234(1)(a) (Supp. 1998)..……………………………………………………...36 837.011 (2004)…………………………………………………………………….47 BLACK’S LAW DICTIONARY, 6th ed. 1990………………………………..46-47
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SYMBOLS AND REFERENCES
I.B. = The Florida Bar’s Initial Brief. RR. = Report of Referee. R. Exh. = Respondent’s Exhibit from Final Hearing. TFB Exh. = The Florida Bar’s Exhibit from Final Hearing. TT1. = Transcript of Final Hearing before Referee on May 29, 2009. TT2. = Transcript of Continuation of Final Hearing before Referee on
June 26, 2009. TT3. = Transcript of Ruling Hearing before Referee on July 20, 2009.
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STATEMENT OF THE CASE AND FACTS In its Statement of Facts and of the Case, The Florida Bar did not discuss the
six significant and substantial mitigating factors found by the Referee. The
Referee noted the absence of any disciplinary history in any jurisdiction since Ms.
Holt was admitted to the Maryland Bar in 1992, Washington, D.C. Bar in 1995,
and The Florida Bar in 1997. (TT3. 13; TT2. 16).
Next, the Referee found substantial involvement in the community,
specifically referencing her devotion to disadvantaged children for over twenty
years. In pertinent part, the Referee found Ms. Holt has been “willing to take care
of children and accept children who are otherwise not subject to the attention of
individuals interested in helping out children.” (TT3. 13). For approximately eight
years in the 1980s, Ms. Holt mentored and consistently accepted weekend
supervisions of three young children she had met while volunteering at a battered
women’s shelter. After moving to Florida, Ms. Holt and her husband became
licensed adoptive parents to a troubled foster child, caring for him three days a
week and over weekends until his violent behavioral problems threatened the
safety of her younger biological son. Most recently, in March 2009, Ms. Holt and
her husband accepted placement of a sibling group of four young children who had
been removed from their home on allegations of torture and neglect. Ms. Holt is
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currently raising five children, four of whom have significant emotional and
behavioral problems based on their history of abuse and neglect.
Ms. Holt’s extraordinary efforts to help children began in earnest when she
was still living in Washington, D.C., in the late 1980s, and volunteering her time at
a battered woman’s shelter called My Sister’s Place. (TT1. 9; TT2. 63). Ms. Holt
was deeply impacted by the conditions and suffering of the children she
encountered at the shelter and lamented that she never knew what happened to the
children after they left the shelter. (TT2. 63).
At this shelter, in or about 1990, Ms. Holt began over a decade long
commitment to a young and troubled family consisting of an abused mother, Ms.
Marcia Brown, and her three children, aged 7 and 6 years old, and a newborn baby.
Ms. Holt spent time with them while they resided at the shelter for six to nine
months and remained in contact with them when the family moved to live with the
children’s grandmother. (TT1. 10-11). Ms. Holt offered to take the children for
the weekends to give some relief to the mother, who was battling addiction, and to
expose the children to other surroundings. (TT2. 65). Although Ms. Brown had
short intervals of sobriety, the children were moved every few months to different
households, their needs not met academically, physically or emotionally. (TT2.
65). The oldest, Michael Brown, was a resourceful seven year old and he would
call Ms. Holt to let her know where they were staying. (TT2. 64). When Michael
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did not call, Ms. Holt would go to the grandmother’s home to seek out the family
and offer assistance. (TT2. 65). Ms. Holt would take the children almost every
weekend, many times for the entire weekend, and continued to do so for the next
eight years until she moved to Florida in 1998. (TT1. 16, 65-67). During this
time, Ms. Holt spent time with them reading, visiting book stores, teaching them to
swim, and otherwise emphasizing the importance of education. Ms. Holt provided
monetary and emotional support to these children; she offered to pay private
tuition when the oldest was assigned to a struggling public school. (TT2. 74).
Even when Ms. Holt moved to Florida in 1998, she continued to keep in contact
with the children. (TT2. 72).
The oldest child, Michael Brown, is now twenty-six years old and a petty
officer, second class, in the Navy and assigned to the Pentagon. (TT1. 8, 16).
Petty Officer Brown received special permission for leave to come to Florida and
testify in these proceedings. Petty Officer Brown explained that Ms. Holt had
encouraged him and put him on the path to college. His mother, Marcia Brown,
filed an affidavit further describing Ms. Holt’s exceptional contribution of time and
support for her entire family, who were strangers until they met Ms. Holt at My
Sister’s Place. Ms. Brown’s dire circumstances as a victim of domestic violence
and as an addict were exacerbated by her struggle to care for her three children.
Upon being introduced to Ms. Holt, Ms. Brown avers that Ms. Holt “immediately
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took to [her] three children,” was “resourceful,” and was never “judgmental,
condescending or expecting.” Ms. Brown praises the time Ms. Holt invested in
her children and credits Ms. Holt with “assisting [her family] to pave a path for a
better future,” and has immense gratitude for Ms. Holt’s “tenacious . . . love and
support.” (R. Exh. 10).
After Ms. Holt moved to Florida in 1998, she continued to serve the
community, becoming involved with an organization called “The Children’s
Home, Incorporated,” which deals with adoptive and residential children that have
been removed from their biological families due to extreme abuse and neglect.
(TT2. 45, 48-49, 70). Ms. Holt and her husband have contributed monetarily to
this organization, giving $10,000 when The Children’s Home was desperately in
need of funds. (TT2. 42, 49; R. Exh. 12).
When the Holts’ biological son turned six years old, Ms. Holt and her
husband took courses to become eligible as an adoptive family in 2005, and
ultimately became matched with a child named Najuan through The Children’s
Home. (TT2. 45). Ms. Holt and her husband envisioned becoming adoptive or
foster parents and purchased a home large enough to have room for many children
who had no where else to go. (TT2. 85-86). Najuan began visitation with the
Holts and they dedicated a room in their home for him. (TT2. 47). Najuan was an
extremely violent and aggressive child with many behavioral issues. (TT2. 48).
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When Najuan was tested as a standard part of the adoption process, the Holts
learned that he was unable to progress academically and would require long-term
services, which he would qualify to receive as a ward of the State. (TT2. 49-50).
While Ms. Holt kept going to classes to try to assist Najuan with his class work and
behavioral problems, others became concerned about Najuan’s violence toward
Ms. Holt’s biological son, who was younger than Najuan. (TT2. 50-51). Due to
these factors, especially the welfare of the younger child, the Holts decided not to
adopt Najuan. (TT2. 86-87). Ms. Holt, however, wished to continue to provide
support to Najuan, but in February and March 2007, the agency determined that it
was not in Najuan’s best interest for her to continue contact with him because he
was too attached to her. (TT2. 51-52, 54, 75, 89).
Ms. Holt was devastated by her inability to see Najuan and felt as though she
had abandoned him. (TT2. 90). Not only was Ms. Holt mourning her own loss at
not being able to see Najuan, she experienced overwhelming guilt when she was
unable to personally deliver a birthday present to Najuan to let him know they had
not forgotten about him in April 2007. Najuan’s birthday was April 2, just days
before the first hearing on April 10, 2007, at which Ms. Holt misrepresented to the
judge that she had attempted to contact her expert witness. (TT1. 31).
In 2008, Ms. Holt and her husband became qualified as foster parents. (TT2.
53). The assistant program manager for The Children’s Home, Ms. Ginger Martin,
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contacted Ms. Holt in March 2009 to offer the placement of a newborn in the
Holts’ home. Ms. Holt understood that newborns were easily placed and
communicated that to Ms. Martin. (TT2. 91). Ms. Martin testified that she “half-
[heartedly]” mentioned they were attempting to place a four-sibling group, who
had been separated into two different homes, and to Ms. Martin’s surprise, the
Holts agreed. (TT2. 54, 56, 91-92). All four children, aged 10, 9, 7 and 4 (now 10,
9, 8 and 5), moved into the Holts’ home just two days later. (TT2. 92).
The four children had previously been in the system and had been removed
again after their parents were charged with excessive corporal punishment as well
as torture and neglect. (TT2. 55). Based on the children’s tremendous hardships,
they have developed extreme behavioral problems. For example, the oldest child
starts fires and has done so in the Holts’ home on at least two occasions; he
urinates and defecates outside the bathroom. (TT2. 58, 96). The other children are
also aggressive toward each other; the girls spit in Ms. Holt’s face. (TT2. 58, 93).
Ms. Martin has observed Ms. Holt interacting with the children and watched her
“maintain calm and focus with the children” and “de-escalate” problem behavior.
(TT2. 57). Ms. Holt has created a strict schedule to emphasize disciplined routines
and the importance of school work in a loving environment. (TT2. 94). The
children are still placed in the Holts’ home and the Holts hope to adopt them once
the parental rights issues are adjudicated. (TT2. 58). Ms. Holt and her close
7
family friends have expressed concern that the dramatic reduction of Ms. Holt’s
income, caused by the loss of referrals from the Hillsborough County referral line
due to her pending discipline, jeopardizes the Holts’ continued ability to afford
their current home, purchased at the height of the market with the intent to fill it
with foster children. (TT1. 34; TT2. 99-100).
In addition to Ms. Holt’s long-standing devotion to community service, the
Referee recognized the devastating emotional distress Ms. Holt was experiencing
at the time of her misrepresentations to the judge and found that the mitigating
circumstance of emotional distress was applicable. (TT3. 16-17). Ms. Holt’s close
friend and former co-worker, Sue Ellen Krick, Esquire, who was a former police
officer as well as a current member of The Florida Bar, described Ms. Holt as
completely distraught and “losing it” when Ms. Holt was unable to see Najuan on
his birthday in April 2007. (TT1. 31). Ms. Krick told Ms. Holt to get counseling
and Ms. Holt acknowledged it was the only time she has sought counseling. (TT1.
31; TT2. 90).
The Referee further determined that the mitigating circumstance of remorse
was applicable and found Ms. Holt’s regret to be sincere. Upon examination by
the Bar, Ms. Holt was asked, “[w]hat do you feel remorse about?” Ms. Holt
responded as follows:
A: A judge is entitled to an honest response to any question, or anything a judge wants. And, quite frankly, it’s disgusting for
8
any attorney to do what I did here. And I think that it’s going to affect Judge Crenshaw, that she will not believe lawyers as much in the future. I feel like a lawyer has a certain obligation that’s high up there, and you cannot conduct yourself like this. And my remorse goes from not just to Judge Crenshaw, and the Florida Bar, but also to my son. I mean, I read books on how to raise children with character, and I turn around and do this, and it’s disgusting. I’m disgusted with myself.
TFB Exh. 12, pg. 48, ln. 5- pg. 49, ln. 6.
Ms. Holt, who had consistently mentored the Brown children throughout
their lives, confessed her serious mistakes to her now grown charge, Michael
Brown, explaining that she had lied to a judge and then lied to cover her initial
deception. (TT1. 16). Petty Officer Brown testified that Ms. Holt felt very bad
about her conduct. (TT1. 16). Similarly, Ms. Krick testified that Ms. Holt was
“mortified” and described her actions as “terrible” and deeply regretted panicking
to cover-up her first lie instead of immediately taking responsibility. (TT1. 26, 27,
33). Each of Ms. Holt’s character witnesses, including practicing Florida
attorneys, averred that Ms. Holt expressed her remorse to them. (R. Exhs. 5-9).
The Referee also found good character and reputation as a mitigating factor
and held “[i]t goes without question, [Ms. Holt] is a skilled and qualified lawyer
and has much to offer the legal community.” (TT3. 19-20). Several witnesses
expressed their positive opinion of Ms. Holt’s reputation for good character and
professionalism. For example, Eugene Brinn, Esquire, averred that Ms. Holt was
“extremely competent and of good character.” (TT3. 14; R. Exh. 6). Scott
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Distasio, Esquire, indicated Ms. Holt was “honest and trustworthy.” (TT3. 15; R.
Exh. 7). Similarly, Lisa Viscardi stated Ms. Holt was “honest, ethical” and
possessed “integrity,” and Varinia Van Ness, Esquire, opined that Ms. Holt was
“professional, very knowledgeable, remorseful and of good character.” (TT3. 14-
15; R. Exhs. 8, 9). In addition, the Referee noted evidence of prior ethical and
honest conduct, as described by Attorney Kevin Mercer. Mr. Mercer was opposing
counsel in a matter in which Ms. Holt’s client had concealed facts pertaining to a
pre-existing injury. Rather than accepting an offer of settlement, Ms. Holt
withdrew from the case. (TT3. 13-14; R. Exh. 4).
Ms. Holt admitted each of the factual allegations in the Bar’s Complaint. At
a scheduling conference held on April 10, 2007, at which Ms. Holt represented the
Plaintiff in a nursing home negligence action, the judge inquired into the status of
discovery depositions. (TT2. 23, 24). Ms. Holt had already scheduled the
depositions of the defense witnesses, but opposing counsel had not yet contacted
her to schedule her experts’ depositions. (TT2. 24-25, 115). The judge was
displeased with counsels’ failure to schedule the depositions and recessed the case
management conference for the attorneys to coordinate depositions of the
Plaintiff’s witnesses. (TT2. 2, 25, 76). Ms. Holt had the contact information for
one of her witnesses, her expert nurse, and was able to contact her during the
recess, but did not have the contact information for her expert doctor. (TT2. 25-
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26). Ms. Holt, who is a solo practitioner with no support staff, could not simply
call the office to obtain the contact information and did not want to further upset
the judge by explaining that she was unable to comply with the judge’s
instructions. (TT2. 72, 77, 78). Ms. Holt falsely told the judge that she had
attempted to contact the expert doctor during the recess, but he was unavailable.
(TT2. 26-27).
The judge continued the scheduling conference to April 12, 2007, and Ms.
Holt left with the intention of immediately contacting the doctor to coordinate the
deposition and still comply with the court’s directive. It is undisputed that Ms.
Holt called the doctor’s office the afternoon of the hearing. (TT2. 29). When Ms.
Holt called the doctor’s office on April 10, 2007, the afternoon of the hearing,
however, she discovered he had passed away. (TT2. 28). Instead of confessing to
the judge that she did not have the witness’ contact information with her in court,
Ms. Holt was scared and made the regrettable mistakes of attempting to cover-up
her initial misrepresentations by continuing her false story at two hearings before
the judge and then in her initial communications with the Bar. (TT2. 80). Ms.
Holt ultimately acknowledged all of the misconduct to the grievance committee,
gave a truthful deposition expressing her remorse prior to the finding of probable
cause, and wrote a letter of apology to the judge. (TT2. 81-82; R. Exh. 14).
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The Referee examined Ms. Holt’s misrepresentations in the context of the
litigation and evaluated the impact of her actions on the case. The Referee
determined that Ms. Holt’s initial misrepresentation was “not for selfish gain” and
that her subsequent misrepresentations became selfish because she was attempting
to avoid sanctions. (TT3. 10). The Referee found that Ms. Holt’s
misrepresentations caused “no actual harm to the parties.” (TT3. 12). In pertinent
part, the Referee explained as follows:
[N]o advantage or disadvantage was made as a result of this. This was a procedural issue not substantive issue such that the misrepresentations were to mislead a [trier] of fact such as in a trial or hearing on a substantive legal issue.
(TT3. 12). Although the Referee found that Ms. Holt’s repeated
misrepresentations to cover her initial false statement should be considered in
aggravation, the Referee found six (6) mitigating circumstances that the Bar does
not contest.
The Referee found Ms. Holt guilty of violating Rules Regulating The
Florida Bar 4-8.4(c), 4-8.4(d), and 4-3.3(a). After considering the nature of the
misrepresentations, the aggravating and mitigating circumstances, as well as the
purposes of discipline, the Referee recommended a ninety-day suspension and one-
year term of probation with the conditions that Ms. Holt receive counseling for
stress management and that she complete an ethics course. The Florida Bar
initially advised this Court on August 24, 2009, that it would not petition for
12
review, but then reversed its position on September 30, 2009. The Florida Bar
does not contest the mitigating circumstances or the Referee’s factual findings, but
urges this Court to reject the Referee’s recommended ninety day suspension and
impose a rehabilitative suspension. Ms. Holt has filed a Cross-Petition to evaluate
whether her misrepresentations to the court were material so as to sustain a Rule 4-
3.3(a) violation, and to consider whether the totality of the circumstances warrants
the imposition of a less severe sanction.
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STANDARD OF REVIEW
The burden is on “the party seeking review to demonstrate that a report of
referee sought to be reviewed is erroneous, unlawful or unjustified.” R. Regulating
Fla. Bar 3-7.5(c)(5). Because the Referee is in a better position to evaluate the
demeanor and credibility of the witnesses, the Court “neither re-weighs the
evidence in the record nor substitutes its judgment for that of the Referee so long
as there is competent substantial evidence in the record to support the Referee’s
findings.” Florida Bar v. Marable, 645 So. 2d 438, 442 (Fla. 1994). The Referee’s
recommended sanction should be upheld if it has a “reasonable basis in existing
case law.” Florida Bar v. Wohl, 842 So. 2d 811, 815 (Fla. 2003)(citations
omitted).
14
SUMMARY OF THE ARGUMENT
The Referee found that there was “no actual harm to the parties,” that “no
advantage or disadvantage was made as a result,” and that it was “not a
misrepresentation such as to mislead a [trier] of fact on a substantive legal issue.”
The Referee further noted that the initial misrepresentation to the judge was not for
“selfish” reasons.
None of the cases cited by the Bar or herein involves mitigation close to Ms.
Holt’s vast and selfless lifelong dedication to caring for abused and neglected
children. Ms. Holt’s contributions began in her early twenties and ranged from the
care of three young children she met while volunteering at a battered women’s
shelter, to her current devotion, even in this difficult economic time, as an adoptive
foster mother housing and caring for a sibling group of four children, aged 10, 9, 8
and 5, who were removed from their home due to torture and neglect and who
suffer from emotional and behavioral problems. The Referee meticulously
outlined his findings of six mitigating factors, including the absence of prior
disciplinary history, substantial involvement in the community, prior ethical
conduct, good character, remorse and emotional stress. The Bar does not contest
the Referee’s findings.
15
The Bar incorrectly states that the majority of cases involving
misrepresentations results in a rehabilitative suspension. To the contrary,
numerous cases have resulted in public reprimands and non-rehabilitative
suspensions involving similar and more egregious misrepresentations. Instead, the
Bar ignores the appropriate standard of whether the recommended sanction has a
reasonable basis in existing case law. The recommended and severe penalty of a
ninety-day suspension and one year of probation clearly falls within the range of
sanctions for analogous conduct. In the face of case law supporting the
recommended sanction, the Bar simply asks this Court to substitute its judgment
for that of the Referee. The uncertainty of the Bar’s position is underscored by its
initial declaration to the Court it would not seek review of the recommended
sanction followed by its flip-flop in urging a more severe penalty. Nevertheless, a
non-rehabilitative suspension is supported by the case law, as well as the Standards
Imposing Lawyer Sanctions, and a rehabilitative suspension is not necessary given
Ms. Holt’s sincere and deep remorse and substantial rehabilitation.
Ms. Holt seeks review of whether she made a “false statement of material
fact or law to a tribunal” as prohibited by Rule 4-3.3(a) (emphasis added).
16
ARGUMENT
Issue One
Does Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003), imposing a rehabilitative suspension for misconduct involving misrepresentations prejudicing a client’s interests as well as conflicts of interest in unrelated matters and prior discipline, prove that a non-rehabilitative suspension is outside the range of sanctions in the present case given the absence of client harm and extraordinary mitigating factors after consideration of numerous cases imposing public reprimands and short term suspensions for more analogous conduct?
The Florida Bar has not shown that the Referee’s recommended sanction of
a non-rehabilitative suspension and probation does not have a reasonable basis in
existing case law. Although this Court has greater discretion in reviewing sanction
recommendations, this Court has repeatedly explained as follows:
[T]he referee in a Bar proceeding again occupies a favored vantage point for assessing key considerations – such as a respondent’s degree of culpability and his or her cooperation, forthrightness, remorse and rehabilitation (or potential for rehabilitation). Accordingly, we will not second-guess a referee’s recommended discipline as long as that discipline has a reasonable basis in existing caselaw.
Florida Bar v. Lecznar, 690 So. 2d 1284, 1288 (Fla. 1997). In evaluating a
recommended sanction, the standard of review not only gives deference to the
referee but requires restraint in not substituting the opinion of the Court for that of
the referee as long as the recommended sanction has a reasonable basis in existing
case law. Justice Lewis discussed this standard in cases involving
misrepresentations in his dissenting opinion in Florida Bar v. Cox, 794 So. 2d 1278
(Fla. 2001). In pertinent part, Justice Lewis wrote:
17
It must be recognized that cases involving the type of behavior for which Cox must respond here have generated discipline covering the entire range of sanctions from public reprimands to disbarments. There can be no doubt that the violation of the duty of candor undermines the system; however, with the previously approved discipline having such a broad range based upon the decisions from this Court, a rejection of the determination by the referee here is, in my view, merely substituting the personal views of those here for those of the referee, a result which the decisions of this Court counsel against.
Cox at 1289 (Lewis, J., dissenting).
The Bar cannot show that a non-rehabilitative suspension falls outside the
range of sanctions in existing case law. Rather than providing a comprehensive
analysis of cases addressing misrepresentations to the court and during the
disciplinary process, the Bar merely requests imposition of a rehabilitative
suspension without consideration of the nature and consequence of the
misrepresentation or the extraordinary mitigating circumstances. The Bar’s limited
analysis does not give appropriate consideration to the standard of review.
A. A short-term non-rehabilitative suspension is supported by existing case law.
Contrary to the Bar’s representations, numerous misrepresentation cases
have resulted in public reprimands and non-rehabilitative suspensions even with
more prejudicial misconduct and less impressive mitigating circumstances.
Respondent has not minimized her mistakes; any misrepresentation by an attorney
is serious misconduct. Nonetheless, even acts of dishonesty have gradations of
18
egregiousness. Misrepresentations to gain an advantage, that prejudice clients or
other parties, that involve theft or other pecuniary benefit, or misrepresentations
spanning several different matters warrant more severe sanctions such as a
rehabilitative suspension. In contrast, the Referee properly considered the nature
of Ms. Holt’s misrepresentations that she had attempted to contact her expert
witness during a court recess.
The Referee found that there was “no actual harm to the parties,” that “no
advantage or disadvantage was made as a result,” and that it was “not a
misrepresentation such as to mislead a [trier] of fact on a substantive legal issue.”
(TT2. 12). The Referee further noted that the initial misrepresentation to the judge
was not for “selfish” reasons and that Ms. Holt had not contumaciously defied the
trial court’s directive to schedule her expert’s deposition, but had intended to
comply when she returned to her office until, of course, she discovered he had
passed away. (TT3. 10). Her actions became selfish once Ms. Holt realized that
her false statement would be discovered and attempted to conceal her
misrepresentation. The Referee further recognized that Ms. Holt’s
misrepresentations to the judge were made at a time when she was under the
influence of extreme emotional distress due to her forced separation from Najuan,
the troubled foster child that she loved but was unable to adopt.
19
Ms. Holt succumbed to the grave but infinitely human mistake of covering
up her initial deception for fear of the consequences. This Court, in Florida Bar v.
Feinberg, 760 So. 2d 933 (Fla. 2000), has acknowledged the predictability of this
problem in which an attorney repeats the same lie to conceal an initial
misrepresentation. In Feinberg, the Court imposed a public reprimand when the
respondent, an assistant state attorney, made repeated misrepresentations to the
court and to opposing counsel as to whether he had contact with a represented
criminal defendant. Since Mr. Feinberg’s improper contact with the criminal
defendant had been made in the presence of law enforcement, there were witnesses
who would have been able to confirm his contact. Mr. Feinberg only admitted his
contact with the represented criminal defendant when he knew that his
misrepresentation was going to be discovered. In ultimately reprimanding Mr.
Feinberg, the Court stated as follows:
Although we understand the predicament in which Feinberg found himself, he nevertheless exercised poor judgment by affirmatively misleading and being untruthful with opposing counsel, and continuing to meet with the defendant after realizing that, contrary to the defendant’s statements, he was represented by counsel. As is so often the case, had Feinberg simply relied upon the truth when confronted with the facts, the resulting trail of deception would have never occurred. It is this perpetuation of the untruthful approach that aggravates that which may have initially been subject to understanding.
Feinberg at 939.
20
Similarly, had Ms. Holt immediately corrected the initial misrepresentation
with the judge when she discovered the doctor had passed away, this matter would
have likely been addressed by the court’s inherent authority to sanction attorneys
without the intervention of The Florida Bar. While Ms. Holt’s misrepresentations
were repeated until she ultimately admitted her misconduct during the grievance
committee’s investigation, there is no true pattern of a dishonest character trait
which would have revealed itself in multiple matters. While the Feinberg Court
recognized that repeating the same lie instead of taking responsibility and
correcting the misrepresentation aggravates the misconduct, the Court recognized
that the public reprimand had a “reasonable basis in existing case law” and refused
to “second guess” the referee. Id. at 938-39.
This Court has recently rejected the Bar’s appeal for a suspension and
publicly reprimanded an attorney after the Fourth District Court of Appeal issued
an opinion “condemn[ing]” him for having ex parte communications with the
opposing party’s expert witness and then engaging in “the strategic concealment”
of the expert’s records. Florida Bar v. Cocalis, 959 So. 2d 163, 167-168 (Fla.
2007); Bradley v. Brotman, 836 So. 2d 1129, 1136 (Fla. 4th DCA 2003) (discussing
attorney Cocalis’ misconduct). In the underlying case, the Fourth District found an
intent to gain an advantage, noting that it did not “comport with fundamental
fairness for an attorney to mislead his opponent and then reap the benefit of his
21
own misconduct.” Bradley at 1134. Cocalis’ misconduct required a reversal of the
verdict and a new trial. Id. at 1136. Cocalis violated Rule Regulating The Florida
Bar 3-4.3, prohibiting the commission of any act that is unlawful or contrary to
honesty and justice, which this Court found was not “minor misconduct.” Id. at
166. Although Cocalis violated Rule 3-4.3 rather than Rules 4-8.4(c), 4-8.4(d) or
4-3.3(a) as charged here, Cocalis’ conduct involved dishonesty as well as an intent
to seek an advantage and unfairly impact the outcome of the case.
As the Cox dissenting opinion discussed, this Court has publicly
reprimanded attorneys who made intentional false statements in a variety of
settings. Cox at 1289-90 (Lewis, J., dissenting). For example, an attorney found
guilty of committing forgery received a public reprimand. See Florida Bar v.
Fatolitis, 546 So. 2d 1054 (Fla. 1989). In Fatolitis, the attorney forged the name of
his wife as a witness to a Last Will and Testament that he had prepared. Id. The
attorney also falsified the date on the will and the referee further found him guilty
of violating Florida Statutes, section 732.502(1)(c), by signing his wife’s name to
the Last Will and Testament. Id.
An attorney who acquired an interest in his client’s property, which was the
subject of post-dissolution litigation, and who attempted to conceal the acquisition
received a public reprimand. See Florida Bar v. McLawhorn, 535 So. 2d 602 (Fla.
1988). In McLawhorn, the attorney represented the former husband when the
22
former wife filed a motion to compel the husband’s cooperation in selling a home
and to impose a lien on the husband’s share of the proceeds to cover back child
support. Before the motion was called for hearing, Mr. McLawhorn obtained a
quitclaim deed of the husband’s interest in the property. Mr. McLawhorn then
filed a pleading on behalf of his client, which contained known false statements as
to the ownership of the property. Id.
The Court also held a public reprimand was warranted for an attorney’s
misconduct in submitting a “notarized” pleading to a court when the attorney knew
or should have known that the pleading contained a false factual averment. See
Florida Bar v. Sax, 530 So. 2d 284 (Fla. 1988). Mr. Sax even wrongfully
presented the document as notarized, when he had signed the pleading outside the
presence of a notary and only later arranged the affixing of the jurat by the notary.
Id. Similarly, an attorney who was involved in a legal support services company
received a public reprimand for notarizing numerous affidavits without requiring
the affiants to personally appear before her. See Florida Bar v. Day, 520 So. 2d
581 (Fla. 1988).
A public reprimand was approved for an attorney who falsified his discovery
responses in his own marriage dissolution proceeding. See Florida Bar v. Wright,
520 So. 2d 269 (Fla. 1988). Mr. Wright was asked to reveal any real property sale
contracts in which he had an interest. Although there were two such contracts, Mr.
23
Wright wrongfully failed to divulge them. Mr. Wright later admitted that the
contracts were subject to discovery and should have been produced and that he had
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. Id.
Although The Florida Bar argues that a rehabilitative sanction is warranted
because Ms. Holt initially lied to the Bar before admitting her misconduct during
the grievance committee’s investigation, a public reprimand has been approved
where the attorney maintained his false testimony during a bar disciplinary
proceeding. See Florida Bar v. Batman, 511 So. 2d 558 (Fla. 1987). In Batman,
the referee found that the attorney testified falsely concerning his practice of law in
representing clients when his license was suspended for non-payment of dues. Id.
Even in a seven-count complaint alleging misconduct that included conduct
involving dishonesty, fraud, deceit, or misrepresentation and inappropriate lawsuits
against clients for fees, the Court has approved a public reprimand as the
appropriate sanction. See Florida Bar v. Winter, 505 So. 2d 1337 (Fla. 1987). In
contrast, Ms. Holt’s misstatements were limited in scope and caused no client
harm.
A public reprimand was imposed in a case involving an attorney found
guilty of submitting a false affidavit in a lawsuit filed against a former client,
notwithstanding additional misconduct that included failing to inform a client of a
substantial conflict of interest. See Florida Bar v. Hagglund, 372 So. 2d 76 (Fla.
24
1979). The referee found that the attorney acted in a callous and indifferent
manner and that he used his superior position as an attorney to take an unfair
advantage over someone with lesser education and sophistication. Id.
The Court has approved a public reprimand for an attorney’s knowing
participation in plans for witnesses to commit perjury. See Florida Bar v. Pearce,
356 So. 2d 317 (Fla. 1978). In a case related to Pearce, another attorney appeared
and testified falsely under oath before a coroner’s inquest involving a shooting
death. See Florida Bar v. Brooks, 336 So. 2d 359, 361 (Fla. 1976). The attorney
was found to have testified untruthfully regarding his absence from the general
area of the shooting. Id.
Similarly, the Court has approved a public reprimand for an attorney who
gave false testimony before a grand jury. See Florida Bar v. King, 174 So. 2d 398
(Fla. 1965). In King, the attorney not only testified falsely, but also failed to
dissuade other witnesses from testifying falsely before the grand jury investigating
bribery in the attorney’s senatorial campaign. Id. The attorney’s subsequent
conduct, delay of nine years in the proceeding and other factors mitigated the
sanction from disbarment to a public reprimand, even though that the Court found
his actions “extremely reprehensible and damaging to the legal profession.” Id.
This Court has not only approved public reprimands in lawyer regulation
cases for attorneys found guilty of engaging in dishonest conduct, but also in
25
Judicial Qualifications Commission proceedings, when judges have been found
guilty of misrepresentations. See In re Frank 753 So. 2d 1228 (Fla. 2000). The
judge in Frank made a false statement in an attorney grievance proceeding that he
initiated against his daughter’s then-husband and further failed to disclose his
connection to counsel who was representing his daughter in the divorce
proceeding. Ms. Holt’s misstatements regarding her attempt to contact her expert
witness to schedule depositions and her initial concealment of that
misrepresentation did not rise to the level of misconduct committed in Frank and
the other cases cited above, particularly in light of the mitigating circumstances.
The Standards for Imposing Lawyer Sanctions were created, in part, to meet
the goal of imposing consistent sanctions for similar misconduct. The Standards
are utilized in determining “acceptable pleas” between the Bar and respondents, as
well as guiding a referee’s recommendations after a contested matter. Stds.
Imposing Law. Sancs. (Preface). As such, uncontested Reports of Referee
approved by this Court may offer some persuasive authority in considering the
range of sanctions imposed for misrepresentations.1
1 This Court has previously explained while a Court’s own unwritten decision is “not a precedent for a principle of law and should not be relied upon for anything other than res judicata . . . it would not be improper for counsel, in an effort to persuade a court to adopt a certain position, to refer to such a decision and thereby suggest to the court how it previously viewed the proposition.” Dep’t of Legal Affairs v. District Court of Appeal, 5th District, 434 So. 2d 310, 313 (Fla. 1983). This Court noted that a court “has the records of its own decisions and the judges have the opportunity to discuss such cases collegially.” Id.
Prior unpublished Florida
Supreme Court Orders approving uncontested Reports of Referee may assist this
26
Court in evaluating the consistency of discipline. A review of these recent Orders
and Reports of Referee also establishes that a public reprimand has been approved
for repeated misrepresentations that prejudice the outcome of the case, even when
the attorney has been previously disciplined.
Most recently, in November 2008, this Court approved a Report of Referee’s
recommendation of a public reprimand when an attorney made numerous “material
and misleading” misrepresentations in an Emergency Ex Parte Motion for
Temporary Custody and Other Relief on behalf of her client. See Florida Bar v.
Anna L. Brown, Case No. SC08-255. Ms. Brown’s misrepresentations, made in an
emergency custody proceeding, threatened critical parental rights pertaining to the
care and welfare of a child.
Just eleven months earlier, in January 2008, this Court had suspended this
same attorney for ninety days after she concealed an improper conflict of interest
by making misrepresentations to the court and to her client. Florida Bar v. Brown,
978 So. 2d 107 (Fla. 2008). The Court noted that the conflict of interest impacted
her ability to competently represent two criminal defendants, the passenger and the
driver of a vehicle who were both charged with constructive possession of a
firearm discovered in the vehicle in which they had been riding. Id. at 112-113.
The attorney filed a false notice of appearance, indicating that another attorney
represented the passenger while she represented the driver. Id. at 110. The
27
passenger, however, only met with and paid Ms. Brown, with no understanding
that her defense of him was compromised by the defense of the driver. Id. As a
result, Ms. Brown violated Rules 4-1.3 (competence), 4-1.4(a) (communication), 4-
8.4(c) (misrepresentation) and 4-1.7(a) (conflict of interest).
Ms. Brown not only compromised the integrity of the legal system, but also
detrimentally impacted the substantive rights of her clients who were charged with
felony crimes and thus, were subject to imprisonment, fines and the loss of civil
liberties. The Court noted that a “public reprimand might have been appropriate if
Brown had engaged in only one of the different types of misconduct in which she
engaged, but not when all of the rule violations are considered together.” Id. at
113. While the Brown Court acknowledged several cases in which an attorney was
publicly reprimanded for making an intentional misrepresentation, the Court
explained that there are no public reprimand cases involving “multiple acts of
misconduct of the kinds engaged in by Ms. Brown, especially where conflict of
interest was involved.” Id. at 113. Yet, the Court distinguished Ms. Brown’s
matter from rehabilitative suspension cases because Ms. Brown had no history of
prior discipline and determined that her misrepresentations were “arguably” less
“egregious.” Id. (distinguishing Florida Bar v. Cibula, 725 So. 2d 360, 362-363
(Fla. 1998)(attorney lied two times under oath to conceal his income in his alimony
28
proceedings and was found to have previously been held in contempt for engaging
in a “pattern of conduct to evade his alimony responsibilities.”)).
Even with the aggravation of a prior ninety-day suspension for misconduct
in Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008), in which she made
misrepresentations impacting the substantive rights of her clients, Ms. Brown
received a public reprimand for again making material misrepresentations to the
court, in a separate matter, that also threatened to impact the legal rights between a
parent and a child. Florida Bar v. Anna L. Brown, Case No. SC08-255. In
contrast to both of Ms. Brown’s cases, Ms. Holt’s rule violations pertain to the
same type of misconduct arising out of the same series of events. Moreover, the
Referee determined that Ms. Holt’s misrepresentations did not impact the outcome
of the case or any substantive legal issue. In addition, Ms. Holt’s case is mitigated
because, unlike Ms. Brown, Ms. Holt has no prior disciplinary history and has
extensive and substantial mitigation as found by the Referee. If Ms. Brown’s
material misrepresentations in a child custody matter, in conjunction with her prior
recent ninety-day suspension for multiple rule violations, including
misrepresentations, warranted a public reprimand, a rehabilitative suspension is not
warranted in the present case.
In October 2008, the Florida Supreme Court approved, and the Bar did not
contest, the referee’s public reprimand recommendation for violations of Rules 4-
29
8.4(c), 4-3.3(a) and 4-8.4(d), the same rule violations charged in the present case.
Florida Bar v. Julian Stanford Lifsey, SC07-747. In Lifsey, the attorney
misrepresented to a judge and opposing counsel that he had not filed a brief
because the record on appeal had not been prepared, falsely claiming the clerk’s
office was overwhelmed. In reality, the record had not been prepared because he
failed to pay the fee. When opposing counsel discovered Mr. Lifsey’s false
statements, he informed the trial court. Mr. Lifsey then filed a Motion to
Disqualify the judge, alleging that the opposing party and the judge were “acting in
concert” against him. Further, Mr. Lifsey misled the appellate court in a motion
for extension of time by intentionally not marking a box indicating whether or not
opposing counsel objected to the extension. Despite the numerous
misrepresentations, a public reprimand was imposed.
In January 2008, the Florida Supreme Court approved, and the Bar did not
contest, a referee’s recommendation for a public reprimand where the attorney
falsely advised his client to cancel a family law mediation due to concerns
regarding their accountant’s figures when really, he was too tired to attend due to a
long drive the night before. Florida Bar v. Steven Howard Goldfarb, SC07-746.
In addition, the attorney filed a motion to remove the judge and then told his client
not to appear for the motion or appear for the trial that was scheduled to begin
immediately thereafter, by misrepresenting that the hearing and trial had been
30
rescheduled. After being contacted by the judge regarding his and his attorney’s
failure to appear at the hearing or trial, Mr. Goldfarb’s client fired Mr. Goldfarb
and also complained about paying additional retainers although his fee contract
referenced a flat fee of $50,000.00. The attorney violated Rules 4-8.4(c), 4-1.5(a),
3-4.2, 3-4.3, 4-1.4(a) and 4-8.4(d). Even though the attorney had previously
received an admonishment, the referee and the Court determined that a public
reprimand, with the conditions of restitution of almost $9,000.00 to be paid back to
the client, and psychiatric counseling and monitoring, was the appropriate sanction.
Also in January 2008, a public reprimand was administered to an attorney
who, incidental to her representation of the wife in a post-dissolution of marriage
matter, authorized a private investigator to make intentional misrepresentations to
the husband. See Florida Bar v. Sara Blumberg, Case No. SC07-781. In
December 2007, a public reprimand was entered condemning Attorney Charles
Behm for “engaging in conduct in connection with the practice of law that was
prejudicial to the administration of justice while handling the probate estate” and
failing to “correct a misrepresentation to the court.” See Florida Bar v. Charles
Behm, Case No. SC06-294, Public Reprimand. Mr. Behm also violated Rule 4-
8.4(c) during the disciplinary hearing by falsely testifying to mitigating facts that
did not occur. See Florida Bar v. Charles Behm, Case No. SC06-294, Report of
Referee.
31
Many of the cases imposing non-rehabilitative suspensions for
misrepresentations, including the November 2008 Florida Bar v. Brown matter
discussed above, involve more egregious facts than those found by the Referee in
the present matter. In Florida Bar v. Forrester, 818 So. 2d 477 (Fla. 2002), the
attorney violated Rules 4-3.4(a) (unlawfully obstructing a party’s access to
evidence) and 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or
misrepresentation). The Court suspended Ms. Forrester for sixty days for
concealing an exhibit during a deposition and misleading opposing counsel
regarding its location. Id. at 480-481. Unlike here, such conduct was an attempt to
prejudice the opposing party and gain an advantage. Nevertheless, the Court
determined that a “sanction harsher than a public reprimand should be imposed
based on the fact that Forrester ha[d] three prior disciplinary actions,” including a
prior ninety-day suspension. Id. at 484.
In Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997), the Court rejected the
Bar’s argument for a ninety-one day suspension and imposed a thirty day
suspension when an attorney presented false evidence to the court and made
repeated misrepresentations to his own employees, opposing counsel, and to the
court. The underlying matter pertained to an infringement civil action involving
the name of a company in which the responding attorney held an interest. Id. at
725. At a hearing on a motion for contempt alleging that the attorney’s company
32
had failed to remove a sign in accordance with a granted injunction, Mr. Kravitz
falsely blamed the wrong individual for failing to remove the sign. Id. at 725-26.
The judge ordered the person identified by Mr. Kravitz to appear in court at a time
certain or be subject to arrest. Id. After the hearing, Mr. Kravitz wrote a letter to
his general manager, who was responsible for the sign, and attempted to extort
$4,000.00 from him by claiming that the judge had ordered him to pay or be
subject to arrest. Id. When the judge discovered Mr. Kravitz had identified the
wrong person, he held Mr. Kravitz in contempt of court and recused himself. Id.
Mr. Kravitz then misled the successor judge by submitting draft orders vacating the
contempt order and falsely claiming that opposing counsel had no objection. Id.
The judge relied on the misrepresentations and vacated the order before
discovering that opposing counsel had not even reviewed the proposed order. Id.
In addition, Mr. Kravitz wrote a letter to opposing counsel falsely claiming that he
held sufficient funds in his trust account to settle the attorney’s fee claim. Id. The
Kravitz Court relied on Standard for Imposing Lawyer Sanctions 6.12 and
determined that a thirty day rather than a ninety-day suspension was appropriate
for his pattern of lying given the absence of any disciplinary history. Id. at 728.
Another case imposing a thirty day suspension addresses criminal
misconduct and misrepresentations. Florida Bar v. Poplack, 599 So. 2d 116 (Fla.
1992). In Poplack, the attorney was discovered, in a disheveled condition, next to
33
a car that was being towed. Upon police inquiry, the attorney and another
individual lied and told the officers that he had borrowed the car and that it had
broken down. The officers first accepted this story but upon further questioning,
the attorney lied again and claimed he was playing a practical joke on a friend. In
reality, the attorney did not know the owner of the car and the Court found that
“only the police officer’s timely intervention prevented Poplack and the other
individual from successfully stealing a car.” Poplack at 119. The State Attorney’s
Office referred Mr. Poplack to the pretrial intervention for his attempted theft of
the motor vehicle. Despite the criminal conduct and Mr. Poplack’s lies to the
police officers during the commission of a felony, he was only suspended for thirty
days, followed by eighteen months probation with the condition of psychiatric
treatment. Id. at 117.
The Court imposed a thirty-day suspension when the attorney submitted a
brief to a district court misrepresenting the facts and then made extensive
arguments based on the misrepresentations. Florida Bar v. Anderson, 538 So. 2d
852 (Fla. 1989). When the opposing counsel filed a Motion for Sanctions
attempting to clarify the record with the District Court, the attorney denied the
inaccuracy and blamed opposing counsel for attempting to “obfuscate and deceive
the court.” Id. The Court found that both responding attorneys responsible for the
brief “not only misrepresented the facts to the district court but failed to correct the
34
misrepresentations even when they were brought to their attention.” Id. at 854.
Consequently, the attorney received a non-rehabilitative suspension for making a
material misrepresentation to gain an advantage, as well as for continuing to cover
up the deception by failing to take responsibility and instead further deceiving
opposing counsel and the court.
Similarly, the Court imposed a thirty-day suspension in Florida Bar v.
Oxner, 431 So. 2d 983 (Fla. 1983), when an attorney failed to prepare for a hearing
or subpoena an essential witness, made numerous misrepresentations and
continued his deception through the disciplinary proceedings. When the attorney
appeared for a final hearing unprepared, the attorney attempted to excuse his lack
of diligence by falsely claiming that he believed the hearing had been canceled and
had therefore released the essential witness from the insurance company. When
the judge further questioned the attorney about the availability of the witness, the
attorney also misrepresented that the witness worked at home and could not be
contacted. During a recess, the judge discovered that the witness had never been
subpoenaed or contacted about the trial and was easily reached at the insurance
company offices. Consequently, the judge did not continue the matter and the
hearing proceeded. Due to the attorney’s failure to adequately prepare and
subpoena witnesses, his client’s claims were defeated. The attorney’s conduct was
aggravated by his lack of remorse. Even at the subsequent disciplinary hearing, the
35
attorney had not filed an Answer and failed to acknowledge the seriousness of the
conduct. Despite the attorney’s refusal to take responsibility for material
misrepresentations that prejudiced his client, the Court did not impose a
rehabilitative suspension.
Cases imposing a ninety-day suspension involve aggravated
misrepresentations, including statements that violate criminal laws. In Florida Bar
v. Varner, 780 So. 2d 1, 2 (Fla. 2001), the attorney was suspended for ninety days
after he prepared a fictitious notice of dismissal with a fraudulent file number that
he forwarded to opposing counsel in a personal injury matter in order to cover his
negligent misrepresentation to the insurance company that a law suit had been
filed. In reliance on the fictitious notice prepared by Mr. Varner, the insurance
company tendered settlement funds. Id. The Court noted the multiple
misrepresentations committed by Mr. Varner because “the document contained a
false statement of fact in that the case number was nonexistent, and also implied
other falsehoods: that a lawsuit had been filed and that the lawsuit was now being
voluntarily dismissed.” Id. at 3. In addition, the Court found that these
misrepresentations were “material.” Specifically, the Court reasoned, “the false
statements in the document were material in that they were in furtherance of a
falsehood that State Farm relied upon in settling the matter.” Id. at 3. Mr.
Varner’s deception was aggravated by the “misuse of an official document” that
36
was “cloaked with the aura of authenticity” because it “diminishes the public trust
in the reliability of such documents.” Id. at 4.
In addition to Mr. Varner’s violation of Rule 3-4.3 (conduct contrary to
honesty and justice); 4-8.4(c) (conduct involving dishonesty, fraud, deceit or
misrepresentation); 4-4.1(a) (knowingly making false statement of material fact);
4-8.4(d) (conduct prejudicial to the administration of justice), Mr. Varner’s
conduct was felonious and violated Rule 4-8.4(b). Id. at 3. By submitting a
fictitious notice, Mr. Varner violated Florida Statutes, section 817.234(1)(a), a
third degree felony. Id. The Court considered the criminal violation in imposing a
ninety-day suspension rather than the thirty-day suspension recommended by the
referee. Id. at 4 (distinguishing thirty-day suspensions imposed for
misrepresentations in Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997), and
Florida Bar v. Rose, 607 So. 2d 394 (Fla. 1992), explaining, “[n]otably, however,
these cases did not involve the commission of a criminal act or the use of court
documents as a means to deceive others.”). Despite Mr. Varner’s serious and
criminal misconduct involving dishonesty and prejudicing the administration of
justice, the Court declined to impose the ninety-one-day suspension sought by The
Florida Bar. Id. at 5.
The Varner Court relied on Florida Bar v. Morse, 587 So. 2d 1120 (Fla.
1991), in finding that a ninety-day suspension was appropriate. In Morse, the
37
attorney hid his malpractice in failing to file suit prior to the statute of limitations
expiring from his client by providing a purported “settlement” check for $2,500.00
to his client (even though the client had previously rejected that settlement amount)
and falsely stating that this was the last offer from the insurance company. Id. at
1120-1121. Mr. Morse was suspended for ninety days. Id. at 1121. Neither Mr.
Varner nor Mr. Morse received a rehabilitative suspension even though their
misrepresentations affected their clients’ substantive rights and claims. See also
Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997) (ninety-day suspension when
attorney missed statute of limitations, misrepresented that case was progressing
and did not tell clients that statute of limitations had been missed).
If the conduct described in Varner, Morse and Lecznar did not warrant
rehabilitative suspensions, there is no basis to require rehabilitation in the present
case. First, the Referee found that Ms. Holt’s misrepresentation to the trial court
did not impact the substantive proceedings. In contrast to Mr. Varner’s fraudulent
document, which the opposing party relied upon in settling the case, or Mr.
Morse’s misrepresentation regarding the client’s settlement to potentially avoid a
legal malpractice claim, the Referee determined Ms. Holt’s statement, that she had
attempted to obtain deposition dates from her expert doctor, did not impact the
substantive legal issues in the case. Second, Ms. Holt’s conduct was not felonious.
The only similarity with Varner, Morse, and Lecznar, is that Ms. Holt panicked
38
and attempted to cover her initial misrepresentation. A comparison of Varner,
Morse, and Lecznar with this case establishes the ceiling of the range of sanctions
at a ninety-day suspension. However, the nature of Ms. Holt’s misrepresentations
and her mitigating circumstances distinguishes her conduct from the aggravating
circumstances in each of these three cases and warrants a shorter, non-
rehabilitative suspension.
Even without the substantial mitigating circumstances found by the Referee,
a rehabilitative suspension is excessive and outside the range of sanctions imposed
for similar misconduct. The Bar primarily relies on Florida Bar v. Rotstein, 835
So. 2d 241 (Fla. 2003), to argue the appropriateness of a rehabilitative suspension.
I.B. at 11-13. Although Rotstein involves misrepresentations and deception to the
Bar, its facts are distinguishable both in the nature of the misrepresentations to the
court, directly intended to prejudice his own client’s substantive rights to pursue a
malpractice claim against him, and his willingness to fabricate and submit
documents to protect his own interests. Moreover, in Rotstein, there was an
absence of any mitigating factors and four aggravating circumstances, including, a
“prior disciplinary offense.” Rotstein at 246.
Rotstein involved three separate series of misconduct. In the first series, the
attorney missed a statute of limitations which barred his client’s claims. Instead of
acknowledging that he committed malpractice, the attorney created a fraudulently
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backdated letter to his client advising her that he was withdrawing his
representation and advising her of the looming statute of limitations. Mr. Rotstein
sent three false documents to the grievance committee all misrepresenting that his
backdated letter was authentic. As a result, he violated Rules 4-1.4(a), 4-3.3, 4-
8.1(a), 4-8.4(c) and (d). In the second and third series of misconduct, Mr. Rotstein
was found to have taken an adverse interest against two separate clients, in
contravention of Rule 4-1.7, by filing motions in unrelated matters seeking to
enforce a settlement agreement without his clients’ knowledge or consent.
Not only did Mr. Rotstein’s actions irreparably prejudice his client’s claim,
he attempted to avoid any responsibility for his malpractice by creating a
fraudulently backdated letter that would have purportedly relieved him of
responsibility in pursuing his client’s claim. Mr. Rotstein specifically intended to
harm his client by eliminating his client’s legitimate claim for damages against
him. Moreover, Mr. Rotstein established a pattern of putting his own interests
before those of the client as demonstrated by his actions in the second and third
series of misconduct in which he took an adverse position to his clients to force
their hand in accepting settlement agreements. Ms. Holt’s conduct is not remotely
comparable. Ms. Holt’s statements did not impact her client’s rights or the rights
of the opposing party or opposing counsel. Although Ms. Holt has acknowledged
that she had panicked in her initial response to the Bar and attempted to cover her
40
mistake, she ultimately acknowledged her misconduct to the grievance committee
and wrote a letter of apology to Judge Crenshaw.
B. A short-term rehabilitative suspension is supported by the Standards for Imposing Lawyer Sanctions and meets the purposes of lawyer discipline.
Ms. Holt’s failure to take immediate responsibility for her
misrepresentations to the trial judge is a gross aberration from her outstanding
commitment to the most vulnerable in our society and her excellent reputation for
professional ability. While community service does not act as a “credit” against
misconduct, consideration of Ms. Holt’s impressive decades-long service to abused
and neglected children brings into focus the isolated nature of her misconduct. The
absence of any disciplinary history and her positive reputation for ethics and ability
further distinguish these lapses of judgment from Ms. Holt’s otherwise
professional conduct. In contrast, the circumstances warranting rehabilitative
suspensions involve misrepresentations that prejudice parties, respondents with
prior disciplinary records or respondents that engage in multiple acts of misconduct
involving many different rule violations.
In evaluating a recommended sanction, the Standards for Imposing Lawyer
Sanctions consider the following factors:
3.0 GENERALLY In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:
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(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.
Fla. Stds. Imposing Law. Sancs. 3.0. In this case, neither the Standards nor the
existing case law support a rehabilitative suspension. First, in considering the duty
violated, the Court has previously examined whether the rule violations pertain to
“only one of the different types of misconduct” or whether they violate multiple
types of lawyer obligations. Brown at 113. In contrast to Brown, which
implicated many duties violated, the rule violations in this case all pertain to the
same type of misconduct arising from the same initial lapse in judgment.
Second, the Referee determined Ms. Holt’s mental state was affected by her
extreme emotional distress arising from her separation from Najuan when she
made misrepresentations to the court in April 2007. Ms. Holt’s close friend,
Attorney Sue Ellen Krick, testified that Ms. Holt was “losing it” at this time in her
life and Ms. Krick urged her to seek counseling, which Ms. Holt did for the first
time in her life. While her personal circumstances do not excuse her misconduct, it
is undoubtedly more difficult to make reasoned decisions in the midst of a personal
crisis.
Third, the Referee found that Ms. Holt caused no injury to her client and that
her misrepresentations pertained to procedural rather than substantive issues. Ms.
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Holt made misrepresentations to a judge that she had attempted to contact her
witness during a break, and immediately attempted to contact the witness that same
day after returning to her office. Over the next few weeks after discovering the
witness had passed away, she panicked and attempted to cover her deception in
two other hearings before the judge. Although Ms. Holt initially lied to the Bar to
cover her misrepresentation, she ultimately took full responsibility in her
deposition and corrected her representations to the grievance committee.
Fourth, Ms. Holt has no prior disciplinary history that would aggravate the
disciplinary sanction. Instead, Ms. Holt has an impressive and established history
of community service. Anyone who has encountered the behavioral problems of
one child might appreciate the awesome tasks that Ms. Holt has voluntarily
accepted over the past twenty years. She has demonstrated an extraordinary
capacity to care for our society’s most vulnerable victims under unimaginable
personal sacrifice. As a consequence of her efforts, the entire community benefits
from children who have a chance as functioning members of society. Indeed, one
of her former charges, Petty Officer Brown, who encountered Ms. Holt at a
domestic violence shelter when he was seven years old and living with an addicted
mother who had difficulty even caring for herself let alone three young children,
directly benefited from Ms. Holt’s consistent mentoring and love throughout his
childhood and teenage years. In evaluating the nature of this disciplinary
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complaint, it is important to consider the entire life of an attorney who has made
great sacrifices for the benefit of many children.
The Referee appropriately considered the purposes of discipline, as
enunciated in Florida Bar v. Poplack, 599 So. 2d 116, 118 (Fla. 1992) (citing
Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983)) in evaluating the recommended
discipline. (TT3. 18). These purposes are: (1) “the judgment must be fair to
society . . . by protecting the public from unethical conduct and at the same time
not denying the public the services of a qualified lawyer;” (2) the sanction “must
be fair to the respondent,” punishing for ethical breaches and yet encouraging
reformation and rehabilitation; and (3) the sanction “must be severe enough to
deter others who might be . . . tempted to become involved in like violations.” Id.
The Referee first explained that a non-rehabilitative suspension would be fair to
society because no one was harmed by Ms. Holt’s actions and that it “goes without
question, she is a skilled and qualified lawyer and has much to offer to the legal
community.” (TT3. 19-20). The Referee reasoned that a non-rehabilitative
suspension would sufficiently punish Ms. Holt and deter others from engaging in
similar misconduct. (TT3. 20).
While the Bar dismisses the Referee’s recommendation as a “mere” ninety-
day suspension, a three month period in which Ms. Holt is prohibited from
practicing law and earning a living is a severe sanction. (I.B. at 13). The Bar’s
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argument demonstrates a fundamental lack of appreciation of the real life impact of
the sanctions it urges this Court to impose. Ms. Holt and her witnesses testified
concerning the ramifications of a suspension on her family and the stress of
maintaining her household and supporting her children, including her foster
charges, on one income. Most critically, Ms. Holt worries about her family’s
continued ability to afford their home, which was purchased at the height of the
market with the aspiration of filling the bedrooms with foster children, a goal that
she and her husband have achieved. Ms. Holt has already experienced direct
financial consequences resulting from the loss of her primary source of referrals
from the Hillsborough County referral line due to her disciplinary matter.
Although personal economic losses might not necessarily mitigate the sanction,
personal consequences of a three-month suspension should be relevant factors in
evaluating the punishment and deterrent purposes of discipline.
After evaluating the entire range of sanctions for misrepresentations, Ms.
Holt’s conduct, especially when one considers the substantial mitigating
circumstances, are most comparable to cases imposing public reprimand or a short-
term suspension of thirty days or less. Accordingly, the Referee’s recommendation
of a non-rehabilitative suspension should be approved, but the duration of the
suspension reduced to reflect the totality of the mitigating circumstances.
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Issue Two
Is a misrepresentation that solely pertains to procedural matters and would not have misled a trier of fact on any substantive issue or given an advantage or disadvantage to any party a “false statement of material fact” pursuant to Rule Regulating The Florida Bar 4-3.3(a)?
While Ms. Holt admitted her misconduct violated Rule 4-8.4(d) (her conduct
prejudiced the administration of justice by requiring additional hearings and
delaying the litigation) and violated Rule 4-8.4(c) (her misrepresentations were
dishonest conduct), her misstatements were not “material” and therefore did not
violate Rule 4-3.3(a). Rule 4-3.3(a) prohibits an attorney from knowingly making
a “false statement of material fact or law to a tribunal.” R. Regulating Fla. Bar 4-
3.3(a) (emphasis added). In contrast to Model Rule of Professional conduct 3.3(a),
which prohibits, in pertinent part, a lawyer from making a “false statement of fact
or law to a tribunal,” Florida requires the additional element of materiality. To
assert that any false statement to a tribunal violates Rule 4-3.3(a) ignores the plain
language of the rule.2
Neither Rule 4-3.3 nor the commentary to the rule offers a definition or
provides guidance as to what constitutes a “material fact.” Moreover, the
Terminology section to the Preamble of Chapter 4 of the Rules of Professional
2 Rule 4-3.3(a)(1) was recently amended to delete the word “material.” In re: Amendments to R. Regulating Fla. Bar, 2009 WL 3858062 (Fla. 2009). However, as Ms. Holt’s misconduct occurred in 2007, the newly promulgated Rule 4-3.3(a), which does not take effect until February 1, 2010, is not applicable.
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Conduct, which sets forth definitions of general terms such as “substantial,”
“reasonable” and “knowingly” does not also include a definition of “material.”
This Court has previously considered the express language and plain meaning of
the Rules Regulating The Florida Bar when evaluating the scope and application of
the Rules. See Florida Bar v. Brake, 767 So. 2d 1163, 1168 (Fla. 2000)
(examining the phrase “engaged in the practice of law” included in the text of Rule
4-8.4(d) and carving out Rule 4-8.4(d) violations as an exception to the general
principle that discipline can be imposed for misconduct occurring outside the
practice of law). Therefore, it is appropriate to give the phrase “material fact” its
plain meaning.
When considering the plain language of a rule or statute, courts have
consulted Black’s Law Dictionary. For example, in State v. Bastos, 985 So. 2d 37,
41 (Fla. 3d DCA 2008), the Third District Court of Appeals relied in part on the
dictionary definition of a “material witness” which is a witness who can “testify
about matters having some logical connection with the consequential facts, esp. if
few other, if any, know about the matters.” Similarly, Black’s Law Dictionary
defines a “material fact” in the context of pleading and practice as follows:
one which is essential to the case, defense, application, etc., and without which it could not be supported. One which tends to establish any of issues raised. The ‘material facts’ of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.
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Black’s Law Dictionary 977 (6th ed 1990). Black’s Law Dictionary further defines
“material fact” in the context of “summary judgment” as follows:
In determining what constitutes a genuine issue as to any material fact for purposes of summary judgment, an issue is “material” if the facts alleged are such as to constitute a legal defense or are of such a nature as to affect the result of the action . . . A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have effect of establishing or refuting one of essential element of a cause of action or defense . . . and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties.
Id. A similar definition of materiality was enacted by the Florida Legislature for
use in prosecutions for perjury. Florida Statutes, section 837.011 (2004), defines
“material matter” as “any subject, regardless of its admissibility under the rules of
evidence, which could affect the outcome of the proceeding.”
Under any of these definitions of materiality, the primary focus is whether
the outcome was impacted or prejudiced by the false statement. The Referee found
that Ms. Holt’s misrepresentations concerning her attempt to contact her expert
doctor during recess to schedule a deposition caused no harm to the parties and did
not result in any advantage or disadvantage to either party. (TT3. 12). Instead, the
Referee determined that this was a procedural issue that would not have misled a
trier of fact of any substantive legal issue. (TT3. 12). Accordingly, the Referee
erred in determining that Ms. Holt violated Rule 4-3.3(a) because she did not
misrepresent a “material” fact to the tribunal.
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CONCLUSION
The Referee’s recommendation imposing a non-rehabilitative suspension
should be approved or reduced to a duration less than ninety days or to a public
reprimand. The Rule 4-3.3(a) guilty finding requiring a misstatement of “material”
fact should be rejected based on the Referee’s findings that there was no advantage
or disadvantage to the parties and no impact on the substantive legal issues in the
case.
Respectfully submitted, ____________________________________ SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 GWENDOLYN H. HINKLE, ESQUIRE Florida Bar No. 83062 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing Respondent’s
Answer Brief has been furnished by FedEx overnight delivery and electronic
submission via [email protected] to the Honorable Thomas D. Hall, Clerk,
Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-
2300; and true and correct copies have been furnished by U.S. Mail to Troy
Matthew Lovell, Esquire, Bar Counsel, The Florida Bar, 4200 George J. Bean
Parkway, Suite 2580, Tampa, Florida 33607, and to Staff Counsel, The Florida
Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this 18th day of
December, 2009.
____________________________________ GWENDOLYN H. HINKLE, ESQUIRE
CERTIFICATION OF FONT SIZE AND STYLE
The undersigned counsel does hereby certify that this brief is submitted in
14 point proportionally spaced Times New Roman font.
____________________________________ GWENDOLYN H. HINKLE, ESQUIRE