Download SC10-1790 Complainant, v. CARLTON PIERCE, Respondent

IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant,
CASE NO: SC10-1790
v.
CARLTON PIERCE,
Respondent.
/
RESPONDENT’S
SUPPORTING BRIEF
Carlton Pierce, Esquire
Carlton Pierce, P.A.
P.O. Box 223723
West Palm Beach, FL 33422-3723
Ofc.: (407) 345-5258
Fax: (407) 536-4333
E-mail: [email protected]
FBN: 0610879
Table of Contents
Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii-vii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4-6
Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-67
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Issues Presented
Issue I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-24
Rule 4-8.4(d) violates the First and Fourteenth Amendments and
Article I, § 4 and Rule 4-1.8(e) violates Article I, § 10.
Issue II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-47
Rule 4-8.4(d) does not bar objectively reasonable statements or legal
arguments criticizing the judiciary.
Issue III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-58
Respondent’s due process rights were violated when he was deprived
of the opportunity to be fully heard in the presentation of his defenses
and when costs were taxed against him without the opportunity to be
heard.
Issue IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59-64
Parties are free to contract and the right is only limited by the
justifiable needs of the public, health, safety or welfare.
Issue V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64-67
Verified pleadings and affidavits are the words of the person
verifying or swearing to the statements.
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached
Table of Citations and Other Authorities
Cases
Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999) . . . . . . . .
passim
Antonelli v. Neumann, 537 So.2d 1027 (Fla. 3d DCA 1988) . . . . . . . 30-31
Armour v. McMiller, 15 So.2d 923 (Fla. 5th DCA 2009). . . . . . . . . .
36
Arthur Andersen Llp. v. United States, 544 U.S. 696 (2005) . . . . . . .
passim
Board of Airport Commissioners of City of Los Angeles v. Jews
for Jesus, Inc., 482 U.S. 569 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11
Bridges v. State of California, 314 U.S. 252 (1941). . . . . . . . . . . . . .
9-10
Brock v. Brock, 690 So.2d 737 (Fla. 5th DCA 1997) . . . . . . . . . . . . . 30
Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). . . . . . . . . . . . .
42, 45
Caribbean Conserv. Corp., Inc. v. Fla. Fish & Wildlife
Conservation Comm’n, 838 So.2d 492 (Fla. 2003) . . . . . . . . . . . . . .
7
ii
Carrollwood State Bank v. Lewis, 362 So.2d 110
(Fla. 1st DCA 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Cavalier v. Ignas, 290 So.2d 20 (Fla. 1974). . . . . . . . . . . . . . . . . . . .
48, 50
Coates v. City of Cincinnati, 402 U.S. 611 (1971). . . . . . . . . . . . . . .
passim
Corp. Management Advisors v. Boghos, 756 So. 2d 246
(Fla. 5th DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Crocker v. Pleasant, 778 So.2d 978 (Fla. 2001). . . . . . . . . . . . . . . . .
33
Encarnacion v. Encarnacion, 877 So.2d 960 (Fla. 5th DCA 2004). .
42
England v. Louisiana State Board of Medical Examiners,
375 U.S. 411 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Florida Bar v. Brake, 767 So.2d 1163 (Fla. 2000) . . . . . . . . . . . . . .
26
Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007). . . . . . . . . . . . 26
Florida Bar v. Cohen, 908 So.2d 405 (Fla. 2005) . . . . . . . . . . . . . . .
26
Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008) . . . . . . . . . . . . . .
27
Florida Bar v. D’Ambrosio, 25 So.3d 1209 (Fla. 2009). . . . . . . . . . .
27
Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005). . . . . . . . . . . . .
27
Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000). . . . . . . . . . . . . .
27
Florida Bar v. Head, 27 So.3d 1 (Fla. 2010). . . . . . . . . . . . . . . . . . . . 27
Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006) . . . . . . . . . . . . . .
27
Florida Bar v. Nunes, 734 So.2d 393 (Fla. 1999). . . . . . . . . . . . . . . .
27
Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001) . . . . . . . . . . . . . . . . .
passim
Florida Bar v. Roth, 693 So.2d 969 (Fla. 1997) . . . . . . . . . . . . . . . . . 27
iii
Florida Bar v. Schram, 668 So.2d 585 (Fla. 1996) . . . . . . . . . . . . . .
27
Florida Bar v. Simring, 612 So.2d 561 (1993). . . . . . . . . . . . . . . . . .
7
Florida Bar v. Springer, 873 So.2d 317 (Fla. 2004) . . . . . . . . . . . . . . 27-29
Florida Bar v. Varner, 992 So.2d 228 (Fla. 2008) . . . . . . . . . . . . . . . 27
Garrison v. Louisiana, 379 U.S. 64 (1964). . . . . . . . . . . . . . . . . . . . . passim
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). . . . . . . . . . . .
8-9
Greene v. Lindsey, 456 U.S. 444 (1982). . . . . . . . . . . . . . . . . . . . . . .
47, 58
Klinka v. Klinka, 959 So.2d 383 (Fla. 5th DCA 2007). . . . . . . . . . . .
34-36
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) . . 9
Larson v. Lesser, 106 So.2d 188 (Fla. 1958) . . . . . . . . . . . . . . . . . . .
passim
Livingston v. State, 441 So.2d 1083 (Fla. 1983). . . . . . . . . . . . . . . . .
33
Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). . . . . . . . . . . . . . . passim
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). . . . . . . . . . . .
25
Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004) . . . . . . . . . . . . . .
passim
Resolution Trust Corp. v. Bright,
6 F.3d 336 (C.A. 5 (Tex.) 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Rosen v. Rosen, 696 So.2d 697 (Fla. 1997). . . . . . . . . . . . . . . . . . . . . 43
Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004). . . . . . . . . . . . . .
50
Ryan’s Furniture Exchange, Inc. v. McNair, 162 So. 483 (1935) . . .
48
Sanford v. Rubin, 237 So.2d 134 (Fla. 1970) . . . . . . . . . . . . . . . . . . .
28, 45
Schmitt v. State, 590 So.2d 404 (Fla. 1991) . . . . . . . . . . . . . . . . . . . .
36
iv
Schroeder v. Gebhart, 825 So.2d 442 (Fla. 5th DCA 2002). . . . . . . .
65
Siegle v. Progressive Insurance, 819 So.2d 732 (Fla. 2002) . . . . . . .
30
State v. Inciarrano, 473 So.2d 1272 (Fla. 1985). . . . . . . . . . . . . . . . .
33
State Plant Bd. v Smith, 110 So.2d 401 (Fla. 1959) . . . . . . . . . . . . . .
47, 58
Tomayko v. Thomas, 143 So.2d 227 (Fla. 3d DCA 1962) . . . . . . . . .
passim
Treiman v. State ex rel. Miner, 343 So.2d 819 (Fla. 1977). . . . . . . . .
29, 32, 40
U.S. v. Calderon, 127 F.3d 1314 (C.A. 11 (Fla.) 1997) . . . . . . . . . . .
8
Wade v. Hirschman, 903 So.2d 928 (FL 2005). . . . . . . . . . . . . . . . . . 42-43
Statutes and Other Authorities
U.S. Const. Amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
U.S. Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
U.S. Const. Amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Art. I, § 4, Fla. Const (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Art. V, § 15, Fla. Const (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Art. I, § 9, Fla. Const (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Art. I, § 10, Fla. Const (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 57.105, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
§ 61.075, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
§ 61.08, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
§ 61.16, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
v
§ 636.261, Fla. Stat. (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59
Black’s Law Dictionary, Seventh Edition. . . . . . . . . . . . . . . . . . . . . .
64
Fla. Code Jud. Conduct Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Fla. Code Jud. Conduct Canon 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39
Fla. Code Jud. Conduct Canon 2A . . . . . . . . . . . . . . . . . . . . . . . . . . .
39-40
Fla. Code Jud. Conduct Canon 3B(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40
Fla. Code Jud. Conduct Canon 3C(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40
Fla. Fam. L. R. P. 12.490. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Fla. Fam. L. R. P. 12.490(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
Fla. Fam. L. R. P. 12.490(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Fla. Jud. Qual. Commn’s Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Fla. R. App. P. 9.210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
69
Fla. R. Jud. Admin. 2.330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40
Fla. R. Jud. Admin. 2.420(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37-38
Fla. Stds. Imposing Law. Sancs. IIIA . . . . . . . . . . . . . . . . . . . . . . . . . passim
Journal of Praxis in Multicultural Education,
Vol. 4 [2009]: Iss.1, Art.3, page 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Motley, Carol M. and Craig-Henderson, Kellina M., “Epithet or
Endearment?”, Journal of Black Studies 37.6 (2007): 944-963. . . .
15
R. Regulating Fla. Bar 3-4.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
R. Regulating Fla. Bar 3-4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
vi
R. Regulating Fla. Bar 3-7.6(q). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55
R. Regulating Fla. Bar 3-7.6(q)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
R. Regulating Fla. Bar 4-1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 46
R. Regulating Fla. Bar 4-1.8(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
R. Regulating Fla. Bar 4-8.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
R. Regulating Fla. Bar 4-8.4(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
R. Regulating Fla. Bar 4-8.4(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
R. Regulating Fla. Bar 5-1.1(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
R. Regulating Fla. Bar 5-1.1(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
R. Regulating Fla. Bar 5-1.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61-63
Random House Webster’s Unabridged Dictionary, Second Edition . . 14-15
Referee Manual Revised May 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56
Introduction
Respondent, Carlton Pierce, seeks vacation of the Report of Referee
(Report) entered on May 17, 2011 by referee James D. Langford, dismissal of the
underlying charges, and vacation of the disciplinary recommendations and taxation
of costs.
Respondent, Carlton Pierce, shall be referred to as Respondent. The
vii
complainant, Florida Bar, shall be referred to as bar and bar counsel. Referee
James D. Langford shall be referred to as referee. References to the: (1) Appendix
shall be made using the symbol (A-x); (2) Record shall be made using the symbol
(R-x) where x represents the tab number; (3) Transcript shall be made using the
symbol (T-x); (4) Respondent’s Composite Exhibit #1 (RC1-x); (5) Respondent’s
Composite Exhibit #2 (RC2-x); (6) Respondent’s Composite Exhibit #3 Transcript dated September 23, 2010 (RC3-x); (7) Respondent’s Composite
Exhibit #4 - Transcript dated October 22, 2008 (RC4-x); and, (8) Respondent’s
Composite Exhibit #5 - Transcript dated August 25, 2008 (RC5-x).
Statement of the Case
This is a Petition for Review of the Report entered by the referee on May 17,
2011 that recommended a finding of guilt for violation of R. Regulating Fla. Bar 41.8(e) and 4-8.4(d), punishment, and taxation of costs against Respondent.
Statement of the Facts
The bar served its Complaint on September 16, 2010 which alleged that
Respondent violated R. Regulating Fla. Bar 4-1.8(e) and 4-8.4(d). (R-1).
Respondent served his Answer and Affirmative Defenses and Motion Challenging
Sufficiency of Complaint on October 11, 2010. (R-4-5). On October 28, 2010, the
bar served its Reply to Affirmative Defenses and Response to Motion Challenging
Sufficiency of Complaint. (R-7-8). A hearing was held on Respondent’s Motion
Challenging Sufficiency of Complaint on November 19, 2010 and an order on
2
same was served on November 30, 2010. (R-15). Said order treated the Motion
Challenging Sufficiency of Complaint as a Motion for a More Definite Statement
and required the bar to file an amended complaint. (R-15). The bar served its
Amended Complaint on December 3, 2010 and Respondent served his Answer and
Affirmative Defenses to same on December 10, 2010. (R-16, 18). On December
17, 2010, the bar served its Reply to Affirmative Defenses to the Amended
Complaint. (R-25). The final hearing occurred on February 23, February 25, and
March 2, 2011 where the bar and Respondent called witnesses. (T-1-531). The
sanction hearing was conducted on April 27, 2011 and, at the conclusion of the
hearing, the referee ordered bar counsel to prepare the order based on previously
made findings and circulate it to Respondent for review. (T-532-553).
On May 10, 2011, bar counsel emailed her 24 page proposed Report of
Referee, Request for Payment of Disciplinary Costs, and Statement of Costs to the
referee without a letter or explanation. (A-25-53). The referee signed and served
the proposed Report verbatim on May 17, 2011 which found Respondent guilty of
the charged offenses, recommended punishment, and taxed costs against him. (A1-23). The referee filed the Report the next day on May 18, 2011. (A-69). On
May 20, 2011, Respondent filed his Notice of Objection pursuant to rule 37.6(q)(5) based on the Statement and Request’s failure to include a ledger, receipts,
canceled checks, and/or invoices to support the alleged costs for items A, B, and D
3
and that it was impossible for the Respondent, court, or referee to determine the
reasonableness or necessity of the alleged costs without a detailed itemization of
same. (A-56-61). On May 23, 2011, the bar served an Amended Request for
Payment of Disciplinary Costs and Amended Statement of Costs which claimed a
lower amount. (A-62-65). On May 25, 2011, Respondent served his second
Notice of Objection on the same basis as his original Notice of Objection. (A-6065).
Summary of the Argument
The First and Fourteenth Amendments of the U.S. Constitution limit the
abridgement of the freedom of speech and preclude punishing someone for
speaking the truth. Similarly, Article I, § 4 protects speech and truthful utterances.
Although a person’s speech can be limited, there must be a clear demarcation of
the proscribed speech so that a rule or law limiting same must: (1) be specifically
tied to a government interest; (2) clearly written where common people can
understand the proscription of speech; (3) not be subject to arbitrary and capricious
application; (4) and, there must be a safe harbor for the truth. The statements made
by Respondent are protected by the First and Fourteenth amendments and Article
4
1, § 4. Rules Regulating the Florida Bar 4-8.4(d) is unconstitutional because its
limitation of the freedom of speech is vague, subject to multiple interpretations,
subject to arbitrary and capricious enforcement, and fails to have a safe harbor
provision for the truth.
Florida caselaw has established the objectively reasonable basis in
circumscribing an attorney’s speech. The objectively reasonable basis is derived
from a person’s complete knowledge in reference to the issues upon which are
commented. The judiciary, like any other branch of government, is not immune
from comment or criticism. The proscription of an attorney’s speech appears to
limit statements that are known to be false or made with reckless disregard for the
truth; thus, it would appear that truthful statements or statements made with an
objectively reasonable basis are protected; however, no specific standard or
examples of a reasonable basis have been articulated in the rule, specific case, or
by the Supreme Court of Florida. Respondent’s comments are not subject to
discipline pursuant to rule 4-8.4(d) as they are bottomed on an objectively
reasonable basis. A violation of 4-8.4(d) requires the requisite mens rea that must
be demonstrated by clear and convincing evidence. Respondent is not subject to
discipline pursuant to rule 4-8.4(d) as no evidence was presented on his mens rea.
Parties are free to enter into contracts and the right to contract can be
circumscribed and limited based on the public’s health, safety, or welfare. The
5
Fourteenth Amendment and Article I, § 9 and § 10 preclude the unjustified
limitation of contracts. A rule or law that limits contracts must be clear and
understood by a person of ordinary intelligence. Rule 4-8(e) is unconstitutionally
vague and unreasonably limits an attorney’s right to contract with clients and third
parties.
The Fifth and Fourteenth Amendments, Article I, § 9 prevent an unjust
taking and demand due process. Respondent’s due process rights were violated
when he was precluded from receiving an opportunity to present his case and
defenses in a meaningful fashion and when costs were taxed against him without
the opportunity to be heard on the matter prior to entry.
A referee must exercise and demonstrate impartiality and independence in
the entry of a proposed report that is drafted by one party as a failure to do so is a
violation of the Code of Judicial Conduct. Judges, magistrates, and referees are
required to remain competent as a judge, magistrate, or referee’s incompetence
prevents a party from receiving his or her due process under the law. Judges,
magistrates, and referees’ competence must meet the minimum standards
established for attorneys to be competent under the Rules Regulating the Florida
bar.
A verified pleading or affidavit signed by a party becomes that party’s
words; otherwise, attorneys would become parties to the action if they are held
6
liable for any inaccurate or untruthful statements that were provided by the affiant.
Jurisdiction
This Court has jurisdiction pursuant to Article V, § 15. Respondent has
raised federal claims herein and specifically reserves the right to have said claims
heard in federal court and does not seek a determination of his federal claims by
this Court as any reference to federal law is merely informational as to the nature
of the federal claims so that the state rules, laws, and constitution can be
considered in light of those claims. See England v. Louisiana State Board of
Medical Examiners, 375 U.S. 411, 415-417 (1964).
Argument
Standard of Review
The standard of review to be applied for the bar proving that an ethical
violation occurred is clear and convincing. See Florida Bar v. Simring, 612 So.2d
561, 565 (1993). A referee’s factual finding will not be overturned unless it is
clearly erroneous or lacking in evidentiary support. Id. Constitutional challenges
are subject to de novo review. See Caribbean Conserv. Corp., Inc. v. Fla. Fish &
Wildlife Conservation Comm’n, 838 So.2d 492, 500 (Fla. 2003). De novo review
is appropriate as the constitutionality of rules 4-8.4(d) and 4-1.8(e) is challenged.
Issue I
Rule 4-8.4(d) violates the First and Fourteenth Amendments and Article I, § 4 and
Rule 4-1.8(e) violates Article I, § 10.
The First Amendment of the United States Constitution specifically states
that “Congress shall make no law respecting the establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
7
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. Const. Amend. I. The First
Amendment was applied to the states by the Fourteenth Amendment’s “[a]ll
persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV,
§ I. Similar to the First Amendment, the Florida constitution also protects speech
where “[e]very person may speak, write and publish sentiments on all subjects but
shall be responsible for the abuse of that right. No law shall be passed to restrain
or abridge the liberty of speech or of the press.” Art. I, § 4, Fla. Const. (1968).
Further, the Florida constitution protects the impairment of contracts where no
“law impairing the obligation of contracts shall be passed.” Art. I, § 10, Fla.
Const. (1968).
To prove “knowingly” there must be a demonstration of specific intent or
mens rea. See U.S. v. Calderon, 127 F.3d 1314, 1326 (C.A. 11 (Fla.) 1997).
“‘Intent” is the conscious objective or purpose to accomplish a particular result.”
Fla. Stds. Imposing Law. Sancs. IIIA. Mens rea, at the very least, applies to the
8
acts that immediately follow, if not to other subsequent elements. See Arthur
Andersen Llp. v. United States, 544 U.S. 696, 705 (2005).
The United States Supreme Court has established caselaw which states that
criticism of the court system and judiciary is not prohibited as same is protected by
the First Amendment. The test to be applied in determining the proscription of
speech is to examine if the statements have the substantial likelihood of material
prejudice in pending cases. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075
(1991). Additionally, the truth can not be punished either civilly or criminally.
See Garrison v. Louisiana, 379 U.S. 64, 74 (1964) and Art. I, § 4, Fla. Const.
(1968). Judges, in their capacities as individuals or courts, are entitled to no
greater immunity from criticism than other persons or institutions. See Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978). A vague and
overbroad rule that prevents criticism of the judiciary unjustly stifles an attorney’s
First Amendment rights. See Bridges v. State of California, 314 U.S. 252, 270-271
(1941). A rule that is substantially overbroad and not fairly subject to a limiting
construction is facially invalid and violates the First Amendment. See Board of
Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S.
569, 577 (1987). A rule is overbroad when it authorizes the punishment of
constitutionally protected speech. See Coates v. City of Cincinnati, 402 U.S. 611,
614 (1971). A rule is unconstitutionally vague when it subjects the exercise of a
9
right to an unascertainable standard. See id. at 614.
In Bridges, the petitioners were held in contempt of court for comments that
were made in their newspapers about pending litigation. See Bridges at 258. The
state argued that the conviction was based on the state’s position that it had the
common law power to take appropriate measures to ensure fair trials free from
coercion or intimidation. See id. at 258-259. Petitioners challenged the ruling in
the California Supreme Court based on the violation of their First Amendment
rights and their convictions were affirmed. See id.
On review, the U.S. Supreme Court held that the curtailment of the First
Amendment right must be couched in terms of a serious substantive evil to be
averted and it appeared that the convictions were based on disrespect for the
judiciary and disorderly and unfair administration of justice. See id. at 270. In
reference to shielding judges, the Court held as follows:
The assumption that respect for the judiciary can be won by shielding
judges from published criticism wrongly appraises the character of
American public opinion. For it is a prized American privilege to
speak one’s mind, although not always with perfect good taste, on all
public institutions. And an enforced silence, however limited, solely
in the name of preserving the dignify [sic] of the bench, would
probably engender resentment, suspicion, and contempt much more
than it would enhance respect. Id. at 270-271.
In reference to the statements causing an improper influence of the judicial
process, the Court held that the potency of the statements were the truthful
presentation of the facts. See id. at 278. Based on the aforementioned, the
10
judgments were reversed. See id.
In Jews for Jesus, Inc., the Board of Airport Commissioners of the City of
Los Angeles implemented a resolution that banned all First Amendment activities
at the Los Angeles International Airport (LAX). See Jews for Jesus, Inc. at 570.
Jews for Jesus was a nonprofit religious organization that distributed religious
leaflets at LAX and one of its members was asked to stop distributing leaflets and
to leave the premises as it was in violation of the resolution. See id. at 571. The
member and Jews for Jesus, Inc., filed a federal action in the district court
challenging the constitutionality of the resolution under the California and Federal
Constitutions as it was facially flawed since it banned speech in a public forum and
was vague and overbroad. See id. at 572. The district court ruled that the
resolution was facially unconstitutional under the United States Constitution. Id.
The court of appeals for the Ninth Judicial Circuit affirmed. Id.
The U.S. Supreme Court, affirmed the Ninth Judicial Circuit but on
different grounds. Id. The Court considered the resolution’s overbroad impact of
effectively limiting all forms of First Amendment speech without language that
limited the restriction. See id. at 573. The Court held that the construction of the
resolution violated the First Amendment because it was substantially overbroad
and not subject to a limiting construction because the resolution did not
demonstrate that it was necessary to serve a compelling state interest, narrowly
11
drawn to achieve that interest, or properly based on a narrowly tailored time, place,
and manner restriction. See id. at 573-577. The Court also found that the
vagueness of the resolution also presented serious constitutional problems. See id.
at 576.
In Coates, the city of Cincinnati implemented an ordinance that stated the
following:
It shall be unlawful for three or more persons to assemble, except at a
public meeting of citizens, on any of the sidewalks, street corners,
vacant lots, or mouths of alleys, and there conduct themselves in a
manner annoying to persons passing by, or occupants of adjacent
buildings. Whoever violates any of the provisions of this section shall
be fined not exceeding fifty dollars ($50.00), or be imprisoned not less
than one (1) nor more than thirty (30) days or both. Section 901–L6,
Code of Ordinances of the City of Cincinnati (1956). See Coates at
n.1.
The appellants were convicted of violating the ordinance and a divided Supreme
Court of Ohio affirmed the ordinance’s constitutional validity. See id. at 612. The
appellants contended that the ordinance violated the First and Fourteenth
Amendments of the Constitution. Id. The Ohio Supreme Court did not indicate a
limited interpretation of the ordinance, but based its holding that the ordinance was
not vague as the word “annoying” had a specific definition and was precisely and
narrowly tailored to demonstrate the legislative intent of the conduct to be
prevented. See id. at 612-613. The Ohio Supreme Court never indicated whose
sensitivities had to be annoyed, and without same, it could have been numerous
12
individuals. Id. at 613.
The U.S. Supreme Court analyzed the ordinance based on its plain
construction and held that the ordinance was unconstitutionally vague and
overbroad because it limited a person’s exercise of a constitutional right based on
an unascertainable standard and authorized punishment for exercising the same
constitutional right. See id. at 614. The vagueness of the ordinance was clearly
evident as conduct that is annoying to some people is not annoying to others and
the person exercising the constitutional right is left without a standard of conduct
upon which to base his actions; thus, an ordinary person would have to guess at the
ordinance’s meaning. See id. If the state wants to limit an exercise of a person’s
constitutional right, then it must do so through enactment of law which is narrowly
constructed toward the prohibited conduct. See id. In reversing, the Supreme
Court held that a State can not criminalize the exercise of the First and Fourteenth
Amendments merely due to the gathering being annoying to some people. Id.
Finally, the Court held that a vague and overbroad ordinance invited
discriminatory enforcement. Id.
In Arthur Andersen Llp., Arthur Andersen LLP., was convicted for violating
18 U.S.C. §§ 1512(b)(2)(A) and (B) which stated in relevant part:
Whoever knowingly uses intimidation or physical force, threatens, or
corruptly persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent to . . . cause or
induce any person to . . . withhold testimony, or withhold a record,
13
document, or other object, from an official proceeding [or] alter,
destroy, mutilate, or conceal an object with intent to impair the
object’s integrity or availability for use in an official proceeding . . .
shall be fined under this title or imprisoned not more than ten years, or
both. Id. at 702-703.
The U.S. government argued that “knowingly” did not modify corruptly, but the
Court held that “knowingly” required a mens rea and that the natural reading of the
statute demonstrates “that the mens rea at least applies to the acts that immediately
follow, if not to other elements down the statutory chain.” See id. at 704-705. The
Court based its reversal of the conviction upon statutory construction and the
definitions of “knowingly” whereby a person who was “conscious of wrongdoing”
could be said to “knowingly corruptly persuade.” See id. at 705-706.
In the case at bar, rule 4-8.4(d) states the following:
A lawyer shall not engage in conduct in connection with the practice
of law that is prejudicial to the administration of justice, including to
knowingly, or through callous indifference, disparage, humiliate, or
discriminate against litigants, jurors, witnesses, court personnel, or
other lawyers on any basis, including, but not limited to, on account of
race, ethnicity, gender, religion, national origin, disability, marital
status, sexual orientation, age, socioeconomic status, employment, or
physical characteristic.
The rule’s language is virtually indistinguishable from the language used in Coates
as it limits a person’s First and Fourteenth Amendment rights with the terms
“disparage, humiliate, or discriminate,” just as “annoying” was used in the
ordinance. Disparage is defined as “to speak of or treat slightingly; depreciate;
belittle.” Humiliate is defined as “to cause (a person) a painful loss of pride, selfrespect, or dignity; mortify.” Discriminate is defined as to “make a distinction in
favor of or against a person or thing on the basis of the group, class, or category to
which the person or thing belongs rather than according to actual merit.” All of the
14
aforementioned definitions are from Random House Webster’s Unabridged
Dictionary, Second Edition. The rule, just like the ordinance, fails to establish or
identify whose sensitivities must be harmed by the disparaging, humiliating, or
discriminatory language or acts.
Like the word “annoying” in Coates, an action or words that could constitute
language that “disparage, humiliate, or discriminate” against one person could be
viewed as a term of endearment to others. The word “nigger” is defined as “a
contemptuous term used to refer to a black person” (Random House Webster’s
Unabridged Dictionary, Second Edition) and is probably the most offensive word
in the English language that could be said to be “disparaging, humiliating, and
discriminatory” against blacks; however, it could be used as a term of affection and
endearment. See Journal of Praxis in Multicultural Education, Vol. 4 [2009]:
Iss.1, Art.3, page 2., and Motley, Carol M. and Craig-Henderson, Kellina M.,
“Epithet or Endearment?”, Journal of Black Studies 37.6 (2007): 944-963.
Based on the aforementioned definitions and term of endearment use of the
word “nigger”, could a black attorney calling another black attorney “nigger” after
a heated hearing be said to have used language that would “knowingly, or through
callous indifference, disparage, humiliate, or discriminate” against the other
attorney when the speaking attorney thought that the listening attorney was fine
with the word since they both used the word to each other the previous night when
15
they were out for drinks? Could a white clerk feel disparaged, humiliated, or
discriminated against if his or her spouse is black and he or she heard the
exchange? What if a white attorney, judge, or clerk liked Eminem and was singing
his song “Nigga” in front of a black attorney? Would the word “nigga” also be
said to make a black person feel disparaged, humiliated, or discriminated against?
Could a white judge hearing a black attorney call another black attorney, “My
nigger!” in court deem said phrase to be prejudicial to the administration of
justice? Would a white clerk commenting about a black attorney and saying, “He
is one cool nigger!” be prejudicial to the administration of justice or be said to have
been stated in a fashion that is knowingly, or through callous indifference,
disparaging, humiliating, or discriminating against the black attorney?
Additionally, in the case at bar, the referee’s application of the “knowingly”
prong analysis was that Respondent “did indeed, and he acknowledges that he's the
one that [sic] prepared the exceptions in the Matthew [sic] case, so he knowingly
did it.” The referee’s analysis of the knowingly prong of the rule is clearly
erroneous. The rule’s knowingly prong is “A lawyer shall not engage in conduct in
connection with the practice of law that is prejudicial to the administration of
justice, including to knowingly, or through callous indifference, disparage,
humiliate, or discriminate. . .” The bar’s allegations were that the language used
was not legal argument, but disparaging and humiliating statements. Using
16
statutory construction and an analysis of the charge in this case, the bar was
required to prove by clear and convincing evidence that Respondent “knowingly
disparaged or humiliated” judge Bronson and magistrate Hinds. The bar failed to
inquire, prove, or present evidence on the “knowingly” prong and Respondent
presented said failure to the referee. (T-514-515). The referee’s ruling “that he’s
the one that [sic] prepared the exceptions in the Matthew case, so he knowingly did
it” was based on an actus of preparing and filing the documents as opposed to rule
4-8.4(d)’s mens rea requirement of knowingly disparaging and humiliating judge
Bronson and magistrate Hinds. It should be noted that the callous indifference
prong was neither raised, presented, nor argued by bar counsel or the referee and
thus there is not any evidence to support same.
The aforementioned analysis demonstrates that “knowingly, or through
callous indifference, disparage, humiliate, or discriminate,” like the ordinance in
Coates, is subject to varying interpretations and is based on a “subjective feeling”
as opposed to an ascertainable “objective standard.” The rule’s language is not
limited in its application as any of the aforementioned examples could occur
anywhere – in the courtroom, courthouse, at a bar or restaurant, or even in a
person’s bedroom.
Rule 4-8.4(d) is more vague and overbroad than the ordinance in Coates
since, as drafted, it is not narrowly tailored for time, place, and manner restrictions
17
and effectively applies to an attorney twenty-four hours a day in any location that
he is present. Further, rule 4-8.4(d), like the ordinance in Coates, is vague and
enforceable through arbitrary and subjective means anytime and everywhere
anyone can say that he or she felt disparaged, humiliated, or discriminated against.
“As a result, ‘men of common intelligence must necessarily guess at its meaning.’”
See Coates at 614.
Similarly, in the case at bar, the vagueness of rule 4-8.4(d)’s proscription of
language that would criticize the judiciary if it is true but believed to “disparage,
humiliate, or discriminate” is demonstrated in the following exchanges in reference
to Respondent’s First Amendment and Article 1, § 4 rights:
Carlton Pierce:
Does an attorney have the right to state the truth regardless if
the person being written about takes offense to it, or like or
doesn't like it?
Magistrate Hinds: I think you give up that right when you become an attorney.
You need to read your rules. (T-62).
*************************
Carlton Pierce:
So are you stating that the parties are precluded from making a
statement?
Judge Bronson
What you think ought not to be voiced all the time, you ought
to keep some of your thoughts to yourself. There is no express
rule which prohibits you from calling a magistrate incompetent.
(T-283-284).
*************************
Bar Counsel:
The truth is not applicable in these proceedings.” (T-476).
18
Respondent's belief that his statements are protected by the
Constitution is also incorrect. As an officer of the court
respondent does not enjoy unabridged free speech rights under
the Florida Constitution or the United States Constitution. . .
.The first Amendment does not shield a lawyer from being
disciplined for making unfounded allegations against the
judiciary. (T-478).
*************************
Referee:
In regard to number 1, the truth, I'll address that further as I get
into my ruling. In regard to paragraph 2, article 1, section 4 of
the Florida Constitution, it certainly says what it says. And
number 3, the United States Constitution certainly says what it
says. We also are members of the Florida Bar whenever we
take the oath and we agree to ascribe and constrict our conduct
to what is required by the bar. And we have rules, and those
rules are cited here for violation today as far as what the court
has to consider if that has been proven by clear and convincing
evidence and has not otherwise been avoided by the avoidances
and defenses. (T-521-522).
Referee’s Report: Lawyers do not have a right to practice law, it is a privilege.
Lawyers are governed not only by the laws of the land, but by
the rules governing attorney conduct. As such, conduct by an
attorney that in other circumstances may be constitutionally
protected may be prohibited. Pursuant to the Rules Regulating
The Florida Bar, respondent is not free to make statements that
disparage and humiliate Magistrate Hinds and Judge Bronson.
(A-16).
*************************
Carlton Pierce:
I believe that a person does not park his first amendment rights
and constitutional protections at the front door of the
courthouse and the party does not lose his right to express
himself when the court should not be able to simply direct
modifications of his words when said words are not liked. This
is a form of censorship and would create a very slippery slope
whereby it would infringe on the client's rights and the
19
attorney's responsibility of zealous representation and drafting
documents as deemed necessary as opposed to the court
drafting the document telling the attorney what to say. (T-512513).
Each person who spoke about the First Amendment and Article I, § 4 rights
was of common intelligence as they were all members of the Florida bar and each
opinion of the aforementioned constitutional right was varied from the other.
Magistrate Hinds indicated that a lawyer lost his First Amendment rights upon
joining the bar; judge Bronson stated that there was not a rule prohibiting the
criticism of the judiciary; the referee orally ruled that First Amendment rights
could be limited and his Report stated that First Amendment rights could be
prohibited; bar counsel stated that the right was abridged and the truth did not
matter; and, Respondent felt that he retained his First Amendment rights. A rule is
definitely vague when five members of the bar have five different opinions about
its meaning and application.
Finally, rule 4-8.4(d) fails to have a safe harbor provision for the truth and
therefore precludes honest criticism in violation of Garrison’s holding that the
truth “may not be the subject of either civil or criminal sanctions” and the Florida
Constitution’s guaranteed protection that “[e]very person may speak, write and
publish sentiments on all subjects but shall be responsible for the abuse of that
right. No law shall be passed to restrain or abridge the liberty of speech or of the
press.” See Garrison at 74 and Art. I, § 4, Fla. Const. (1968). Although the
20
referee addressed the truth, the analysis of same was based on his subjective
opinion and not on the objectively reasonable basis standard outlined in Florida
Bar v. Ray, 797 So.2d 556 (Fla. 2001). The Ray “objectively reasonable basis”
standard is discussed in detail in Issue II.
Respondent was also charged with violating R. Regulating Fla. Bar 4-1.8(e).
As charged, the referee found that “the evidence presented clearly and
convincingly demonstrates that respondent advanced funds to his client that were
not a court cost or an expense of litigation as required by the Rules Regulating the
Florida Bar.” The referee also found that “respondent’s assertion that there was no
rule precluding purges as being a reasonable cost and/or expense of litigation is
without merit. The rules governing an attorney’s conduct are clear. An attorney is
only permitted to advance funds to a client under certain prescribed circumstances.
Payment of a purge is not one of the circumstances for which funds may be
advanced.” (A-4-5). However, the Report also found that the funds were received
from Jensen’s father and “was expected to be “rapidly deployed” due to Mr.
Jensen’s financial situation and to get Mr. Jensen out of jail when he was held in
contempt for non-payment of child support.” (A-5).
Rules Regulating Florida Bar 4-1.8(e) prohibits providing financial
assistance to a client in connection with a pending or expected matter, except that
“(1) a lawyer may advance court costs and expenses of litigation, the repayment of
21
which may be contingent on the outcome of the matter; and (2) a lawyer
representing an indigent client may pay court costs and expenses of litigation of
behalf of the client.” R. Regulating Fla. Bar 4-1.8(e).
It is without question that the funds that were advanced were on behalf of
the father as was agreed by the parties. (T-234-235). The father was also
responsible for paying all costs and fees associated with Jensen’s case. (T-231).
The Report’s findings indicate that there was a third party contract between
Respondent and Jensen’s father, for the benefit of Jensen, to expend any funds
necessary in connection with the case including payment of any costs or fees to get
him out of jail and that the father would pay for same. Jensen’s father never put a
limit on what was to be paid or how funds were to be spent except to the benefit of
his son.
Rules Regulating Florida Bar 4-1.8(e) is vague as it does not state or define
what “court costs and expenses of litigation” are or how a person subject to the rule
could be properly informed as to whose definition would be used in “court costs
and expenses of litigation.” Is the definition defined by the parties in a retainer
agreement or a third party contract? Is it subject to the definition of the referee? Is
it subject to the definition of bar counsel? Is it subject to the definition of the
circuit, district, or supreme court? Does it specifically limit the terms in the
drafting of a contract? Is there a definitive list of all authorized court costs and
22
expenses of litigation? Would the common attorney exposed to the rule know all
of the authorized “court costs and expenses of litigation” when a detailed list
pursuant to the rule does not exist? The rule does not answer any of the
aforementioned questions directly and is thus vague and not fairly subject to a
limiting construction, yet subjects a member of the bar to discipline for its
violation where “men of common intelligence must necessarily guess at its
meaning” and suffer if they guess incorrectly.
This Court should find that rule 4-8.4(d) is unconstitutional and violates the
First and Fourteenth Amendments and Article I, § 4 because it is a vague and
overbroad rule that: (1) is not fairly subject to a limiting construction; (2) is not
limited for time, place, and manner; (3) fails to have a safe harbor provision for the
truth; (4) authorizes the punishment of constitutionally protected speech; and, (5)
subjects the exercise of a constitutional right to an unascertainable standard.
This Court should find that rule 4-1.8(e) is unconstitutional and violates
Article I, § 10 because it is a vague and overbroad rule that: (1) is not fairly subject
to a limiting construction; (2) authorizes the punishment for the constitutionally
protected right to contract; and, (3) subjects the exercise of a constitutional right to
an unascertainable standard.
Rule 4-8.4(d) is grammatically similar to 18 U.S.C. §§ 1512(b)(2)(A) and
(B) in that there must be a requisite mens rea of knowingly committing an offense
23
to support a finding of guilt. Pursuant to Arthur Andersen Llp., and the plain
language of rule 4-8.4(d), this Court should dismiss the charge as there was not any
evidence presented on Respondent’s mens rea and a finding of guilt can not be
sustained absent evidence demonstrating intent to “knowingly, or through callous
indifference, disparage, humiliate, or discriminate.”
Issue II
Rule 4-8.4(d) does not bar objectively reasonable statements or legal arguments
criticizing the judiciary.
In attorney disciplinary proceedings in Florida, the standard circumscribing
an attorney’s protected speech under the First Amendment is the “objectively
reasonable basis” standard. See Ray at 558. In Ray, the respondent was charged
with violating rule 4-8.2(a) “a lawyer shall not make a statement that the lawyer
knows to be false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge.” Id. at 557. The charge was based on the
allegation that Ray made several statements in letters to the chief immigration
judge questioning another immigration judge’s integrity and fairness at a hearing
for his client. Id. The referee found as follows:
The letters contained accusations which are utterly false and they were
made in my way of thinking at a minimum–at a minimum–with
reckless disregard for the truth.
Indeed, if there is one word that characterizes these letters, it is
reckless.
24
... I have read the transcript and I have listened to the tape and there
was nothing–nothing–that transpired in that hearing that would justify
such outrageously false accusations. And I am utterly appalled that
this kind of language would be used against anybody on evidence that
barely qualifies as sketchy. Id. at 558
Ray contended that his statements were opinion, he had a subjectively
reasonable basis in fact for making them, and that the defamation standard of New
York Times Co. v. Sullivan, 376 U.S. 254 (1964) applied in attorney disciplinary
proceedings in Florida. Id. This Court reasoned and held that the defamation
standard of New York Times Co., was inappropriate in attorney disciplinary
hearings and did not apply as the purpose of a claim of defamation was to remedy
a private wrong while the rules of discipline were to preserve the public’s
confidence in the fairness and impartiality of the justice system. Id. at 558-559.
The analysis in Ray focused on the fact that the referee took evidence from
the bar and Ray regarding whether he had a reasonable basis in fact to make the
statements in his letter. Id. at 559. Upon examining the evidence and testimony of
Ray, this Court highlighted the referee’s findings that it was impossible for Ray to
“call someone a liar for a statement they never made. . . nothing that transpired in
that hearing that would justify such outrageously false accusations” and that Ray’s
basis in making the statement “barely even qualifies as sketchy. . .[thus] Ray’s
statements were made with reckless disregard for the truth.” Id. The amici argued
that criticism of the judiciary would be severely limited if the report was allowed
25
to stand. Id. at 560. In approving the referee’s recommendation, this Court held
that the case does not limit an attorney’s legitimate criticism of judicial officers,
but they must follow the rules when doing so as “statements impugning the
integrity of a judge, when made with reckless disregard as to their truth or falsity,
erode public confidence in the judicial system without assisting to publicize
problems that legitimately deserve attention.” Id.
Although the “objectively reasonable basis” standard in Ray was predicated
on rule 4-8.2(a), the standard also applies to violations of rule 4-8.4(d) as those
cases have involved primarily lying, knowingly acting/speaking to cause
unnecessary hearings, and trust account violations that could impact a legal
proceeding as demonstrated by some of the cases below:
Florida Bar v. Brake, 767 So.2d 1163 (Fla. 2000). Willful violation of fiduciary
duties.
Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007). Trust account violations.
Florida Bar v. Cohen, 908 So.2d 405 (Fla. 2005). Conspiracy with drug dealing
with submission of false evidence, false statements, and deceptive practices.
Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008). Decision without published
opinion. Admitted to calling the judge an “evil, unfair witch” and indicated that
she was “seemingly mentally ill.” The bar proceeded under rules 3-4.2, 3-4.3, 48.2(a). 4-8.4(a), and 4-8.4(d).
Florida Bar v. D’Ambrosio, 25 So.3d 1209 (Fla. 2009). Deliberately filing
misleading information on a court filing.
Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005). False accusations of
pedophilia against a person.
26
Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000). A release of culpability with
bar and threat with release of trust funds.
Florida Bar v. Head, 27 So.3d 1 (Fla. 2010). Equivocation caused unnecessary
hearings.
Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006). Outbursts in court, called
judge out of his name, and going beyond proffer in an attempt to cause a mistrial.
Florida Bar v. Nunes, 734 So.2d 393 (Fla. 1999). False accusations against
counsel in reference to missing court file.
Florida Bar v. Roth, 693 So.2d 969 (Fla. 1997). Lying, diversion of trust assets,
and threatened molestation lawsuit.
Florida Bar v. Schram, 668 So.2d 585 (Fla. 1996). Lied to judge in reference to
calendar conflict.
Florida Bar v. Springer, SC02-1687 (Fla. 2004). Repeatedly lied to client about
legal proceedings.
Florida Bar v. Varner, 992 So.2d 228 (Fla. 2008). Lied about authority to dismiss
client’s case, dismissed same, and did not tell the client about dismissal.
Ray’s analysis is appropriate in the case herein as it focuses on whether
Respondent had an objectively reasonable basis to believe that his statements were
true and/or accurate. Further, in the instant case, bar counsel has already admitted
that Ray’s “objectively reasonable basis” standard is applicable when she stated
“[a]lthough respondent has not been charged with violating R. Regulating Fla. Bar
4-8.2(a), case law interpreting this rule is applicable to examining respondent’s
affirmative defense of truth.” (R-25).
Count II of the Complaint alleged a violation of rule 4-8.4(d) with the basis
27
of same being that the language used in the Exceptions, Revised Exceptions, and
Motion to Disqualify did not constitute legal argument, but a personal attack on
judge Bronson and magistrate Hinds. The referee found that the bar had
established by clear and convincing evidence all of the allegations in paragraphs
10-31, the entirety of count II. (T-520-525).
The ruling failed to address the objectively reasonable standard and the bar
failed to put on any evidence to prove with clear and convincing evidence that the
statements used were not legal argument and that they violated rule 4-8.4(d). An
analysis of the statements in the Exceptions would demonstrate that they were
objectively reasonable legal arguments raising legitimate issues that were required
to be preserved. See Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970). (On
appeal, all issues, except constitutional issues of fundamental error, are waived
unless they are timely raised in the trial court.) An analysis of each allegation that
was found not to be legal argument by the referee is listed below with the legal
underpinnings and/or rationale for same immediately following along with, as
applicable, caselaw using similar language.
Petitioner’s due process rights were violated when the
magistrate: (1) refused to obey this Court’s Order in accordance with
Fla. Fam. L. R. P. 12.490(3); (2) ruled on issues not properly before
her; and (3) demonstrated her bias and incompetence by attempting to
justify her recommendation by creating inapplicable findings.
Bias and incompetence are specific legal arguments which demonstrate the
28
slant of the magistrate’s report and recommendation by refusing to obey the trial
court’s order in accordance with Fla. Fam. L. R. P. 12.490(3) and ruling on issues
not properly before her. A case using the same or similar language includes
Florida Bar v. Springer at 326 n2 (Like onions, the counts described in the
majority opinion can be peeled to reveal numerous layers of incompetence.) Also,
this Court has held that “it is clear that a judge who is ignorant of the law cannot
afford due process.” Treiman v. State ex rel. Miner, 343 So.2d 819, 823 (Fla.
1977). Therefore, a judge or magistrate’s competence is always at issue in a case.
. . . Additionally, her recommendations can not be sustained as
her justifications were contrivances that attempted to bootstrap and
create support from nonexistent findings created out of whole cloth
and unsupported by caselaw or statutory provisions. The magistrate
demonstrated her bias and incompetence by attempting to justify her
recommendation by creating inapplicable findings.
....
The magistrate has again demonstrated a bias against Petitioner
and that she is more than willing to violate the plain language of the
Florida Family Law Rules of Procedure.
There were not any findings in the record to support the magistrate’s intent
and the magistrate stated that she did not have any idea why the filings were done,
none of the motion hearings were in front of her, there were never any § 57.105
rulings, delay was not a reason for a § 57.105 sanction, and there was never a
finding of bad faith to satisfy Moakley v. Smallwood; therefore, the magistrate did
not have any basis for raising sanctions pursuant to § 57.105 and Moakley v.
Smallwood. (T-53-61). Mr. Matthew also testified that he thought that the
29
magistrate was biased. (T-329).
The Order was simply to determine her intent as to which pleading would
entitle the former wife attorney’s fees (RC1-194); thus, she was limited as to the
matter before her. The Order never told her to determine an amount and/or
payment time as that was specifically reserved to the trial court. The specific issue
of referral is so basic in family law that exceeding the order is per se reversible
error as it is a violation of due process. In this case, the judge agreed with the
analysis. (T-187).
Some of the cases using the same or similar language include Siegle v.
Progressive Insurance, 819 So.2d 732, 739 (Fla. 2002) (A court cannot create
something out of whole cloth, when nothing exists.); Brock v. Brock, 690 So.2d
737, 740 (Fla. 5th DCA 1997) ( “A trial judge cannot create findings out of thin
air.”); Antonelli v. Neumann, 537 So.2d 1027, 1029 (Fla. 3d DCA 1988) (the
“project was merely a contrivance to conceal a usurious transaction.”); and,
Carrollwood State Bank v. Lewis, 362 So.2d 110, 114 (Fla. 1st DCA 1978) (“We
admonish against attempts to evade appropriate review procedures by clothing
claims for coercive relief in raiment of dubious constitutional dimensions in order
to bootstrap such claims into subjects for declaratory decrees.”).
. . . The magistrate’s attempt to justify her recommendation by
citing to § 57.105 and Moakley v. Smallwood is misplaced,
inapplicable, and demonstrates her incompetence and/or refusal to
follow blackletter law. The attempted justification demonstrates that
she is willing to create inapplicable findings from whole cloth and
attempt to bootstrap support by improperly applying the “findings” to
caselaw and statutory provisions.
. . . Clearly, the magistrate did not comprehend or misconceived
Moakley v. Smallwood as the attorney’s fees in her recommendation
are clearly not against the attorney and, if so, violative of the plain due
process requirements.
30
Based on the plain language of § 57.105 and Moakley v. Smallwood,
and the magistrate’s admission that she did not have any evidence that
either applied (T-53-61), it is objectively reasonable to perceive that
the magistrate was either incompetent and/or refused to follow
blackletter law. Any justification was not based on the record; thus,
the magistrate created inapplicable findings from whole cloth as a
method of bootstrapping support by improperly applying the
“findings” to caselaw and statutory provisions. What was the
magistrate’s real reason for drafting her recommendations? She
wanted to teach Respondent a lesson – “I was attempting to put him
on notice that his behavior is going to lead to problems for him and
hoping he would see that this is no way to practice law.” (RC1-374).
The use of a recommendation by a magistrate is limited to the
purposes outlined in Fla. Fam. L. R. P. 12.490 and teaching an
attorney a lesson is not one of the provisions.
The
magistrates [sic] bias, incompetence, lack of knowledge of the
application of the statute, rules, and caselaw are disturbing, shock the
conscience, and shake the very core of what should be expected in the
legal system – the cold neutrality of an impartial magistrate who is
knowledgeable of the law, will follow same, and not trample upon
one’s due process rights. . . . .
The magistrate clearly failed to know and understand Moakley v.
Smallwood, § 57.105, and the application of Fla. Fam. L. R. P. 12.490. (T-53-61).
She also violated Matthew’s due process rights when she heard matters that were
not before her and interviewed a witness ex parte over an objection. Moreover, she
admitted that she did not know the law or refused to follow it when asked whether
she was going to record the conversation with the minor child in the following
exchange:
Mr. Greenberg:
You record the proceedings though when you talk to him, don’t
you, ma’am?
Magistrate:
No. I do not do that. Maybe I should, but I don’t. (RC5-96).
31
A magistrate “who is ignorant of the law cannot afford due process.” See Treiman
at 823. It is objectively reasonable that one’s conscience would be shocked and
feel that the core of the legal process has been violated when experiencing the
aforementioned and Mr. Matthew stated same. (T-329).
Some of the cases using the same or similar language include Crocker v.
Pleasant, 778 So.2d 978, 983 (Fla. 2001) (A violation of substantive due process
can also arise where the governmental action “shocks the conscience.”); State v.
Inciarrano, 473 So.2d 1272, 1277 (Fla. 1985) (“To hold, as the majority does, that
the commission of a criminal act waives a privacy right requires an entirely new
legal definition of privacy rights which would, in turn, shake the foundation of
fourth amendment analysis.”); and, Livingston v. State, 441 So.2d 1083, 1086 (Fla.
1983) (“Every litigant, including the State in criminal cases, is entitled to nothing
less than the cold neutrality of an impartial judge. It is the duty of courts to
scrupulously guard this right of the litigant and to refrain from attempting to
exercise jurisdiction in any matter where his qualification to do so is seriously
brought to question. The exercise of any other policy tends to discredit and place
the judiciary in a compromising attitude which is bad for the administration of
justice.”)
This document was drafted pursuant to the Court’s Order as the
Court herein appeared to be more concerned with protecting the bias
and incompetence of the magistrate as opposed to protecting the due
process rights of Petitioner. . . . The Court’s statement clearly
32
demonstrates that it was either indifferent to and/or unwilling and/or
unable to follow the clear and unambiguous law as mandated in Fla.
Fam. L. R. P. 12.490(d)(2). . . .
This statement is objectively reasonable as judge Bronson did not contest the
legal accuracy of the Exceptions, but thought that it could have been stated in a
different manner that, from his view, did not seem as a personal attack. (T-284).
However, the judge also acknowledged that there is no rule against calling a
magistrate biased or incompetent. (T-283-284). Mr. Matthew also testified that he
thought that judge Bronson was more concerned with protecting the magistrate and
her ruling as to opposed to his due process rights. (T-337). The law pertaining to
exceptions hearings for a recommendation from a magistrate are clearly delineated
in Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999) and more fully
explained in (RC1-179-191). The court failed to comply with Doyle and Klinka,
and admitted that there was a due process violation, but decided not to vacate the
magistrate’s recommendation which would lead one to objectively believe that
judge Bronson “was either indifferent to and/or unwilling and/or unable to follow
the clear and unambiguous law as mandated in Fla. Fam. L. R. P. 12.490(d)(2).”
On October 22, 2008, a hearing on the exceptions occurred
before this Court. The following are just a few of the statements from
the October 22, 2008, hearing that demonstrate this Court’s
incompetence, failure to comply with the law, and necessity for
mandatory disqualification. . . . . This Court’s statements are
nonsensical and demonstrate it does not understand the law,
magistrate’s role, process of exceptions, or role of a judge in hearing
the exceptions. . . . .
33
. . . When the correct legal standard was brought to this Court’s
attention, it refused to comply with the standards established by the
law. This Court clearly does not understand the appellate process and
its relationship to the filing of exceptions.
The statements identified in the language above and an analysis of same are
below.
The Court will overrule the objection. The magistrate is the
appropriate one to decide on the issue of entitlement to attorney’s
fees. There’s no definitive ruling by the magistrate as to the amount
of the attorney’s fees. And the only person who can decide based
upon the issues before the magistrate as to whether or not there was a
basis for entitlement would have been the magistrate. . . . And so if the
case is heard by the magistrate and there is not a ruling on entitlement,
the only way some other judge or magistrate could rule on the issue of
entitlement is if that person conducts the entire proceeding. I mean
the magistrate ruled based upon what transpired that there was an
entitlement. There’s nothing at this point as to the definitive amount
of attorney’s fees. And I’ll overrule the objection as to the issue of
the magistrate ruling as to the entitlement of attorney’s fees. She said
that your client filed a needless motion, a motion that should not have
been litigated. Based upon that she ruled that that was an entitlement.
I don’t see anything wrong with that. . . . Well, I assume that she
deduced that based upon what happened during the course of the
hearing. (RC4-8-9).
So based upon what I’ve seen, she gave – she was given a deduction
for – it says on here, federal income tax is what it says. And the only
federal income tax situation that would merit a credit that you all told
me about is the earned income credit. So I’m assuming that was what
the magistrate had in mind, so that exception is overruled. (RC4-15).
But as to the earned income credit, I’ll find that there is no evidence
that the magistrate abused her powers, that she didn’t abuse her
powers, that she didn’t abuse her discretion, and that nothing has been
pointed out to this Court to indicate that somehow the magistrate’s
calculations which consider this income tax credit were incorrect. . . .
What I’m saying is that as the judge I sit in the basic position of an
34
appellate court and I have to decide whether or not somehow the
magistrate has abused her discretion in making the rulings that she
made. And I find that she has not and that there is competent
substantial evidence which supports her calculations. (RC4-17-18).
The law is very clear that a ruling on an issue not noticed for hearing or
litigated by the parties violates due process rights. See Klinka v. Klinka, 959 So.2d
383, 385 (Fla. 5th DCA 2007). The issues not resolved by the magistrate are
specifically reserved for the court. See Anderson at 50-51. Judge Bronson’s view,
that he must assume the magistrate’s deductions is in direct opposition to the
statutes, rules, and caselaw that require specific findings supported by competent
substantial evidence. See Anderson at 50-51 and Fla. Fam. L. R. P. 12.490. Child
support calculations must be based on competent substantial evidence and the
source for the calculations must be listed in the final judgment. See Armour v.
McMiller, 15 So.2d 923, 925 (Fla. 5th DCA 2009), citing a plethora of other cases.
A case using similar language to that which is alleged to be improper is Schmitt v.
State, 590 So.2d 404, 413 (Fla. 1991) (“the illegal language of subsection
827.071(1)(g) clearly can be separated from the remaining valid language without
rendering the enactment nonsensical.”)
. . . This Court’s statements clearly demonstrate that it is
incompetent and indifferent to and/or unwilling and/or unable to
follow the clear and unambiguous law as mandated in Fla. Fam. L. R.
P. 12.490(d)(2) and the associated caselaw.
On April 1, 2009, a hearing was held on Petitioner’s exceptions
that were served on March 5, 2009, whereby this Court ordered part of
the exceptions to be sealed, yet failed to state the necessary findings
35
for sealing the court documents . . . . [sic]
On August 24, 2009, this Court entered an order that clearly did
not comply with the basics of drafting an order or Florida Rules of
Judicial Administration since it failed to include any findings
demonstrating why the portions of the document should be sealed
pursuant to the law.
The statement encompassing Fla. Fam. L. R. P. 12.490(d)(2) is analyzed in
the paragraph supra. The statement encompassing the April 1, 2009 hearing
demonstrates that judge Bronson failed to state the necessary findings for sealing
the court documents as he failed to include which specific rule of Fla. R. Jud.
Admin. 2.420(c) and the basis for same (RC1-207-279) although it was brought to
his attention on August 18, 2009 (RC1-285); yet, he entered the order and left the
spaces blank. (RC1- 292-295). The order that was entered and commented about
demonstrates the accuracy of the statement was objectively reasonable since judge
Bronson failed to state the necessary findings for sealing the court documents and
mandated by Fla. R. Jud. Admin. 2.420(c). (RC1-292-295). The shortcoming in
judge Bronson’s order was brought to the attention of the Clerk of Court on
September 3, 2009. (RC1-296). The next day, judge Bronson entered another
order on sealing the record and said order was not sent to Respondent. (RC1-297299). When asked why he did not fill in the blanks pursuant to Fla. R. Jud. Admin.
2.420(c), judge Bronson stated that he did not think that it was necessary. (T-172),
but he could not explain why he filed the second order when asked about same.
(T-174).
36
The abovementioned statements about judge Bronson’s incompetence and
failure to comply with Fla. R. Jud. Admin. 2.420(c) are objectively reasonable
considering the plain evidence of the documents and judge Bronson’s subsequent
action of entering a second order that arguably complied with Fla. R. Jud. Admin.
2.420(c).
This Court has clearly demonstrated impropriety and the
appearance of impropriety by failing to know and follow the law,
rules, caselaw, and the provisions of the Code of Judicial Conduct. . . .
Rather than professing error and correcting the obvious malfeasance,
this Court allowed the case to proceed and caused Petitioner to incur
needless attorney’s fees and costs.
This Court has demonstrated an inherent bias against Petitioner
and his counsel as cited in paragraph 6. Remaining on the case after
being named as a respondent demonstrates this Court’s intent to be
biased and seek revenge with another biased ruling. The Court’s
impartiality and competence are reasonably questioned considering
paragraph 6. Finally, the Honorable Theotis Bronson, this Court, as a
party to the suit, has more than a de minimis interest in the outcome of
the case since the granting of the writ would demonstrate this Court’s
incompetence, indifference, and/or inability to follow the law when
presented to it in a clear, concise, and unambiguous manner.
This Court’s actions have clearly demonstrated that it is biased
and incapable of being impartial or unable and/or unwilling to follow
the law in the case subjudice and should be disqualified as Petitioner
has a real and palpable fear that his due process rights will again be
violated and he will not be able to get a fair and impartial hearing
before the Court as demonstrated by the Court’s refusal to follow the
rules, statute, and caselaw.
Florida Rules of Judicial Administration 2.330 governs the disqualification
of county and circuit trial judges. See Fla. R. Jud. Admin. 2.330. The rule states
that any party may file a motion to disqualify the trial judge assigned to the case on
37
any ground provided by rule, statute, or the Code of Judicial Conduct. See id. The
rule mandates that the motion shall, inter alia, allege specifically the facts and
reasons upon which the movant relies as the grounds for disqualification and that
the party fears that he or she will not receive a fair trial or hearing because of
specifically described prejudice or bias of the judge. See id.
The backdrop of the motion to disqualify is illuminated in the preamble of
the Code of Judicial Conduct that states, “Our legal system is based on the
principle that an independent, fair and competent judiciary will interpret and apply
the laws that govern us.” Fla. Code Jud. Conduct, Preamble. Additionally, Canon
2 states that a “judge shall avoid impropriety and the appearance of impropriety in
all of the judges’s activities. Id. at Canon 2. Further, Canon 2A states that a
“judge shall respect and comply with the law and shall act at all times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary.”
Id. at Canon 2A. Canon 2A is reinforced by Canon 3B(2)and 3C(1)’s mandates
that a “judge shall be faithful to the law and maintain professional competence in
it. . . . A judge shall diligently discharge the judge's administrative responsibilities
without bias or prejudice and maintain professional competence in judicial
administration.” Id. at Canons 3B(2) and 3C(1). Finally, “the test for appearance
of impropriety is whether the conduct would create in reasonable minds, with
knowledge of all the relevant circumstances that a reasonable inquiry would
38
disclose, a perception that the judge's ability to carry out judicial responsibilities
with integrity, impartiality, and competence is impaired.” Id. at Comment. to
Canon 2A.
Rule 2.330 does not state exactly what can and can not be stated or how to
describe the specific fear faced by the party. An analysis of Matthew’s Verified
Motion to Disqualify demonstrates that Matthew alleged that he had a fear of bias
and that the judge Bronson had an interest in the case. Further, he specifically
alleged that he had a concern about judge Bronson’s competence and gave the
basis for same. Considering the requirements of rule 2.330, the allegations about
judge Bronson were objectively reasonable and mandatory.
A judge or magistrate’s competence is always an issue in a proceeding since
a judge or magistrate who is ignorant of the law can not afford due process. See
Treiman at 823. A judge is required to be competent pursuant to Canon 3B(2) and
3C(1). A magistrate, who is an attorney, is required to be competent pursuant to R.
Regulating Fla. Bar 4.1.1 which states that “a lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the representation.”
See R. Regulating Fla. Bar 4-1.1. In the case of a judge or magistrate, the clients
are those people appearing before them and the judicial process. Although there
are not any articulated specific standards for competence in the Code of Judicial
39
Conduct or the Florida Judicial Qualifications Commission’s Rules, the Florida
Standards for Imposing Lawyer Sanctions 4.5 establishes the following guidelines
for competence and the failure to maintain same:
4.51 Disbarment is appropriate when a lawyer’s
course of conduct demonstrates that the
lawyer does not understand the most
fundamental legal doctrines or procedures,
and the lawyer’s conduct causes injury or
potential injury to a client.
4.52
Suspension is appropriate when a
lawyer engages in an area of
practice in which the lawyer knowingly
lacks competence, and causes injury or
potential injury to a client.
4.53
Public reprimand is appropriate when a
lawyer:
(a) demonstrates failure to understand
relevant legal doctrines or procedures and
causes injury or potential injury to a
client;
or
(b) is negligent in determining whether
the lawyer is
competent to handle a legal matter and
causes injury or potential injury to a
client.
4.54
Admonishment is appropriate when a
lawyer engages in an isolated instance of
negligence in determining whether the
lawyer is competent to handle a legal
matter, and causes little or no injury to
a client.
To avoid punishment based on the drafting of the abovementioned rule, a
40
member of the legal community should demonstrate the competence necessary to
handle a legal matter with the requisite skill without negligence and/or harming the
client. It is reasonable to expect for a magistrate, who is an attorney, and a judge,
who is expected to have at least the same knowledge of an attorney, to have the
aforementioned level of competence established by the Florida Standards for
Imposing Lawyer Sanctions 4.5. Additionally, magistrate Hinds is required to
perform her duties in accordance with, inter alia, Fla. Fam. L. R. P. 12.490 and she
swore that she would faithfully follow same. (T-370-373). Competence requires
that the judge and magistrate be able to review the record and evidence, find
competent substantial evidence, and utilize same in the ruling or recommendations.
Moreover, a judge or magistrate should be able to articulate the legal bases for his
or her findings that they place in a ruling or recommendation.
The bar presented witness Mark O’Mara to testify in this matter. (T-112).
O’Mara graduated from law school in 1982, has practiced family law for more than
25 years, is board certified in criminal law, and is pending board certification in
family law. (T-114-116). He was also past president of the Central Florida Family
Law, American Inns of Court (Inns). (T-115). O’Mara testified that each member
must be re-invited annually and Respondent was a member of the Inns for three
years. (T-123, 130). O’Mara acknowledged that there are several statutes, rules,
and cases that every competent attorney should know if they practice in family
41
law. (T-126-128). A few of the aforementioned are § 61.075; § 61.08;
§ 61.16;
Fla. Fam. L. R. P. 12.615; Fla. Fam. L. R. P. 12.285; Canakaris v. Canakaris, 382
So.2d 1197 (Fla. 1980); Encarnacion v. Encarnacion, 877 So.2d 960 (Fla. 5th
DCA 2004); Rosen v. Rosen, 696 So.2d 697 (Fla. 1997); and, Wade v. Hirschman,
903 So.2d 928 (FL 2005). (T-126-128). Any member of the Inns above the level
of associate should have a working knowledge of the aforementioned statutes,
rules, caselaw and their application. (T-129).
Respondent is a family law attorney whose practice has focused on family
law and family law appeals since 2004. (T-413). Seventy to ninety percent of
Respondent’s CLEs are family law related. (T-413). Respondent routinely does
appeals and is vigilant in noting the appellate issues of each case. (T-438). He
was a member of the Inns as an associate and knew and observed judge Bronson
and magistrate Hinds as members. (T-413-414). Respondent agreed with
O’Mara’s objective view that members of the Inn above the level of associate
should have a thorough working knowledge of the statutes, rules, and caselaw
associated with family law. (T-414).
The referee stated the following in reference to the competence of magistrate
Hinds and judge Bronson:
There is certainly testimony to support that mistakes were made
by Magistrate Hinds. There's certainly testimony to support that
Judge Bronson made some errors because he was reversed on at least
two things that I saw in front of me. But because we make errors
42
proves one thing, that we're human. It doesn't prove that we're
incompetent, it doesn't prove that we're bias [sic], it doesn't prove that
we're prejudice [sic], and it doesn't prove that we make nonsensical
rulings. What it does establish is that there is a difference of opinion.
There is a forum for taking the difference of opinion up and it's called
an appeal and that's the forum that should have been used. This forum
should have not been used for the language used in those exceptions.
(T-525).
The referee failed to analyze whether the statements were objectively
reasonable considering Respondent’s knowledge of judge Bronson and magistrate
Hinds, complete legal experience and knowledge, and the actual statutes, rules, and
caselaw that were presented along with whether there was a pattern of failure to
comply with the statutes, rules, and caselaw. Respondent noticed and articulated a
pattern of judge Bronson and magistrate Hinds’ failure to know and comply with
the statutes, rules, and caselaw which led him to believe that his statements were
objectively reasonable based on his complete legal experience involving same. A
synopsis of a few of judge Bronson and magistrate Hinds’ failures to comply with
the statutes, rules, and caselaw are listed on A-68-87. A review of the synopses
demonstrates that the judge and magistrate committed the same errors and others
over an extended period of time and could not articulate the correct bases for the
rulings or recommendations. It is objectively reasonable to state that a judge and
magistrate are incompetent when considering the aforementioned combined with
the analysis of Matthew herein. Moreover, judge Bronson and magistrate Hinds’
failures to comply with the statutes, rules, and caselaw: (1) demonstrate a
43
failure to understand relevant legal doctrines or
procedures and causes injury or potential injury to a
client; or (2) negligence in determining whether the
he/she is competent to handle a legal matter and causes
injury or potential injury to a client.
The
aforementioned, but for the fact that they are members
of the judiciary, would subject them to at least a
public reprimand pursuant to Fla. Stds. Imposing Law. Sancs. IIIA,
4.53.
The referee’s statement, “What it does establish is that there is a difference
of opinion” in reference Respondent’s statements about judge Bronson and
magistrate Hinds’s incompetence mirrors the reasonableness test established in
Canakaris that “[i]f reasonable men could differ as to the propriety of the action
taken by the trial court, then the action is not unreasonable.” Similarly, in the case
of the objectively reasonable standard, the referee’s finding was that there was a
difference of opinion, not that the statements were unreasonable or that no
reasonable person would have taken Respondent’s view that the magistrate and
judge were incompetent. The aforementioned is reinforced as the referee stated
that “[t]here is a forum for taking the difference of opinion up [sic] and it's called
an appeal and that's the forum that should have been used. This forum should have
not been used for the language used in those exceptions.” The problem with the
44
referee’s analysis is that the forum was proper as the filing and hearing on
exceptions is an appellate procedure as explained in Anderson. See Anderson at
50-51. Further, Respondent was required to raise all issues that could be argued at
the trial level or same are deemed waived at the appellate level. See Sanford v.
Rubin at 137.
The case at bar also assists in informing the public of problems with judge
Bronson and magistrate Hinds that legitimately deserve attention as their repeated
errors based on a lack of competence impacts thousands of lives of everyday
citizens who are unaware that their due process rights are being violated. It is an
attorney’s duty to inform the public of problems in the legal system, especially
when the circumstances have grave consequences, and attempting to silence
attorneys would have a chilling effect on informing the public.
An analysis of bar counsel’s statement that the “defense of truth is not
applicable in these proceedings” (T-476) and the referee’s findings countenancing
same mean that the objectively reasonable basis for believing the veracity and
accuracy of the statements are of no import in a disciplinary hearing for a violation
of rule 4-8.4(d) since there is not a safe harbor provision for the truth. The
aforementioned analysis of excluding a safe harbor provision for the truth makes
rule 4-8.4(d) unconstitutional as drafted and applied as it clearly runs afoul of the
First and Fourteenth Amendments, Art. I, § 4 of the Florida constitution, and
45
Garrison as explained in Issue I.
Based upon Ray’s objectively reasonable standard, O’Mara’s statement of
expected competence, R. Regulating Fla. Bar 4-1.1 and 4-8.4(d), and Fla. Stds.
Imposing Law. Sancs. IIIA, 4.53, count II should be dismissed as Respondent’s
statements were reasonable, there was not any evidence that the statements were
unreasonable, and the referee failed to analyze the rule and evidence using the
proper standard established in Ray.
Issue III
Respondent’s due process rights were violated when he was deprived of the
opportunity to be fully heard in the presentation of his defenses and evidence and
when costs were taxed against him without the opportunity to be heard.
The Fifth Amendment’s due process clause states that no person shall “be
deprived of life, liberty, or property, without due process of law.” The Fourteenth
Amendment also provides due process protection from state action by stating that
no State shall “deprive any person of life, liberty, or property, without due process
of law.” Similarly, Article I, § 9 of the Florida constitution provides that “[no]
person shall be deprived of life, liberty, or property, without due process of law.”
The fundamental requirement of due process of law is the opportunity to be heard.
Greene v. Lindsey, 456 U.S. 444, 449 (1982), State Plant Bd. v Smith, 110 So.2d
401, 407 (Fla. 1959), and Tomayko v. Thomas, 143 So.2d 227, 230 (Fla. 3d DCA
1962). The opportunity must be full, fair, and not illusory in nature. State Plant
46
Bd. at 407 and Tomayko at 230. It is a denial of due process when a party is not
afforded a chance to fully present his or her case including defenses. See Tomayko
at 230.
A proposed final judgment by a party should be used as a starting point, but
can not “substitute for a thoughtful and independent analysis of the facts, issues,
and law by the trial judge.” See Perlow v. Berg-Perlow, 875 So.2d 383, 389-390
(Fla. 2004). The practice of entering verbatim orders without an editing change is
frowned upon as there is an appearance that the judge did not exercise his or her
independent judgment in the case. See id. The fundamental principle of due
process of law demands notice and an opportunity to be heard before a final
judgment is entered. Cavalier v. Ignas, 290 So.2d 20, 21-22 (Fla. 1974).
In Tomayko, the appellant was served with a rule nisi and she made a special
appearance to attack the jurisdiction of the court on constitutional grounds. Id. at
229. The trial court struck the special appearance and entered an order against her.
Id. The trial court failed to allow the appellant an opportunity to file her defenses
in writing. Id. at 230. The appellate court reversed with the following holding:
The protection afforded by the constitutional guarantee of due process
of law extends, of course, into every type of legal proceeding. In
observing due process of law, the opportunity to be heard must be full
and air [sic], not merely colorable or illusive. Ryan’s Furniture
Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483. Id.
In Perlow, the petitioner inquired whether he should prepare a proposed
47
final judgment and the trial court stated that it would not have to prepare a final
judgment and that a staff member or legal aide would draft the final judgment if
the case was decided in his favor. See Perlow at 385. On the following day, the
respondent’s attorney submitted a proposed final judgment and the court inquired
if petitioner had a proposed final judgment. Id. Petitioner inquired if he could
submit one later that day and the court reaffirmed his previous statement that a
staff member or legal aide would draft the final judgment if the case was decided
in his favor. Id. The trial court entered the respondent’s 25 page proposed final
judgment without a single modification. Id. at 386. The judgment was wholly
one-sided against the petitioner and was signed within two hours of the closing
arguments. Id. The appellate court affirmed the trial court and held that it was not
an improper delegation of the trial judge’s role when it adopted respondent’s
verbatim proposed final judgment. Id.
On petition, the petitioner argued that the trial judge failed to exercise
judicial independence in entering the verbatim proposed final judgment. Id. at 387.
This Court held that the trial court could request proposed final judgments, but
there was an appearance of impropriety as the trial judge failed to afford petitioner
an opportunity to object and that the final judgment was entered verbatim without a
single editing change although there were not any findings of fact or conclusions of
law stated on the record. Id. at 389. The ultimate holding and guidance for the
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courts was that proposed final judgments must serve as a starting point and that a
judge’s adoption of a verbatim proposed final judgment submitted by one party
presents the appearance that the trial judge did not exercise his or her independent
judgment in the case.” See id. at 390.
In a similar situation, the Fourth district reversed the trial court when it
entered an order without making a single editing change. See Ross v. Botha, 867
So.2d 567, 570 (Fla. 4th DCA 2004). In reversing the verbatim order, the district
court held, inter alia, that “[i]t is also difficult to believe, on such fact-intensive
issues as presented here, that an attorney can be so omniscient as to the court’s
findings that they could be entirely correct without a single edit where the court
made no rulings in open court.” See id. at 572.
The Fifth district has also continuously ruled that “it is well established that
trial courts are admonished for the verbatim adoption of proposed orders drafted by
litigants. . . A judge’s practice of delegating the task of drafting sensitive,
dispositive orders to counsel, and then uncritically adopting the orders nearly
verbatim would belie the appearance of justice.” Corp. Management Advisors v.
Boghos, 756 So. 2d 246, 248 (Fla. 5th DCA 2000).
In Cavalier, the petitioner and respondent were partners in purchasing and
operating an apartment. See id. at 21. The agreement called for an equal
$5,000.00 contribution of funds from each person, but respondent ended up paying
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all of it; however, petitioner’s efforts caused the rental income to double. See id.
The petitioner filed a complaint which sought a partnership accounting with a
temporary enjoinder. See id. At the trial, the trial court granted a continuance and
allowed respondent to file an amended complaint which was different from the
earlier amended complaint since it sought to rescind and dissolve the partnership
and extinguish petitioner’s interests. See id. Final judgment was entered for the
respondent without notice or the cause being set for trial. See id. at 22. The
district court affirmed. See id. In quashing the district court’s opinion and setting
aside the final judgment, this Court held that:
Such a course of action directly contravenes the due process
requirements set forth in the cases cited above, which requirements
we hereby reaffirm. Due process of law requires that notice be given
and that petitioner be afforded an opportunity to be heard before entry
of a final judgment. Id.
In the case sub judice, Respondent was charged with violating rule 4-8.4(d)
and his Answer presented the defenses of truth, freedom of speech, freedom to
contract, lack of clarity of the order, and verification of pleadings. (R-18).
Respondent based his truth defense on his knowledge and application of the law
and whether or not the magistrate and judge Bronson demonstrated the requisite
level of knowledge compared to the mandates of the statutes, rules, and caselaw.
In order to demonstrate their competency or lack of competency based on an
objective analysis, Respondent sought to question the magistrate and judge
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Bronson about the legal bases and reasoning for their decisions over an expanse of
time and compare the decisions to the controlling rules, statutes, and caselaw. The
referee actively precluded Respondent from fully presenting and demonstrating his
truth defense by limiting his questioning of the magistrate and the judge when it
came to their knowledge of the rules, statutes, and caselaw in their own orders,
final judgments, and recommendations.
The referee actively engaged in several limitations of examination and
demonstration of the truth defense including with magistrate Hinds (T-81-83, 251254; A-88-92), judge Bronson (T-200-204; A-93-95), bar counsel (T-405-406; A96-97), and Respondent (T-425-426, 441-443; A-98-99). Further, the referee
prevented introduction into evidence of some of the court documents that
Respondent relied upon and formed part of the basis of his defense. (T-465-468;
A-100-101). The referee’s lack of understanding of the relevance of the evidence
to be introduced directly prevented Respondent from affording him a chance to
fully present his case and defenses. More specifically, Respondent was not
allowed to present his evidence that clearly showed that judge Bronson and
magistrate Hinds did not know that applicable law, refused to follow it, or was
indifferent to same by evaluating their actions across a continuum of time.
The truth defense, knowledge for the basis of the truth, and intent can be
gleaned in several manners and revolve around the actual experience(s) of the
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person making the statement. Respondent’s uncontroverted testimony
demonstrated that he was actively involved in each case whether or not he made an
official appearance of record. Respondent, like any other person, derived his
knowledge of the magistrate and the judge over a period of time -- in this case,
over approximately a six year period. Therefore, to demonstrate his truth defense,
he would obviously have to draw from his complete knowledge over the years.
The referee’s position was that Respondent’s knowledge and other bases for
presenting his truth defense would be limited to cases that were directly mentioned
in the complaint, that were appealed, that he felt were timely, or that an official
notice of appearance was filed regardless if Respondent had interviewed the client
and researched the case filings, orders, recommendations, and associated statutes,
rules, and caselaw for same.
The referee’s preclusion and restriction of Respondent from presenting the
historical context and basis for his knowledge eviscerated the truth defense and
violated his due process rights since he was not given a full and fair opportunity to
be heard that was not illusory in nature. This case is similar to Tomayko as the
referee herein, like the trial court therein, precluded a full and fair opportunity to
be heard on the legal defenses.
At the March 2, 2011 hearing, during summation bar counsel submitted
caselaw and requested permission to fax them to the referee. (T-469). The referee
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stated that bar counsel could fax them to his office. (T-469). When Respondent
inquired as to the submission of his caselaw, the referee stated that the cites were
good enough because they were in the record and “we’re going to have the record
transcribed, so that’s fine.” (T-527). The statement by the referee that “we’re
going to have the record transcribed” clearly means that the record and caselaw
would be reviewed prior to entering the Report of Referee. The record was not
ordered transcribed until same was done by Respondent. (A-67).
At the April 27, 201l sanction hearing, the referee ordered bar counsel to
prepare the order based on previously made findings and circulate it to Respondent
for review. (T-552-553). On May 10, 2011, bar counsel emailed her 24 page
proposed Report of Referee, Request for Payment of Disciplinary Costs, and
Statement of Costs to the referee without a letter or explanation. (A-25-53).
The proposed Report was emailed to the Referee with the bar’s Statement of
Costs and Request for Payment of Disciplinary Costs on May 10, 2011. (A-2553). The proposed Report had a section titled Statement of Costs and Manner in
Which Costs Should be Taxed with an amount that matched the bar’s Statement of
Costs. (A-48, 50). The Request for Payment of Disciplinary Costs and Statement
of Costs did not include a ledger, receipts, canceled checks, and/or invoices to
support the alleged costs for items A, B, and D. (A-50-53). On May 20, 2011,
Respondent filed his Notice of Objection pursuant to rule 3-7.6(q)(5) based on the
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Statement and Requests failure to include a ledger, receipts, canceled checks,
and/or invoices to support the alleged costs for items A, B, and D and that it was
impossible for the Respondent, court, or referee to determine the reasonableness or
necessity of the alleged costs without a detailed itemization of same. (A-56-61).
Unbeknownst to Respondent, the referee had signed and served the proposed
Report verbatim on May 17, 2011 prior to the expiration of the time allowed by
rule 3-7.6(q)(5). (A-23). The referee filed the Report the next day on May 18,
2011. (A-69).
On May 23, 2011, the bar served an Amended Request for Payment of
Disciplinary Costs and Amended Statement of Costs which claimed a lower
amount. (A-62-65). On May 25, 2011, Respondent served his Notice of Objection
of the Amended Statement of Costs on the same basis as his original Notice of
Objection. (A-60-65).
The proposed Report was adopted by the referee without making a single
editing change without allowing adequate time for Respondent to review and
object to the contents thereof since the Report contained a payment of costs
provision based upon the bar’s Statement of Costs and rule 3-7.6(q)(5) allowed ten
(10) days to object to same. (A-1-24, 26-49, 69).
Due process for the taxation of costs is provided in R. Regulating Fla. Bar 37.6(q). See R. Regulating Fla. Bar 3-7.6(q). The referee is also given specific
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directions on how and when the report should be filed and costs should be taxed in
the Referee Manual Revised May 2010. First, the “referee shall provide written
notice to the parties that the report of referee has been completed.” Referee
Manual Revised May 2010. After service of the notice, “a party shall file a
statement of costs incurred in a referee proceeding and a request for payment of
same within 15 days after written notice from the referee that the report of referee
has been completed or at the time that a guilty plea for consent judgment is filed.”
R. Regulating Fla. Bar 3-7.6(q)(5). Next, “the party from whom costs are sought
shall have 10 days from the date the motion was filed in which to serve an
objection.” R. Regulating Fla. Bar 3-7.6(q)(5). “The report of referee cannot be
filed with the supreme court until after the time period for filing a motion to assess
costs by the prevailing party and the objection has run.” Referee Manual Revised
May 2010. This appears to be a very straightforward methodology of ensuring due
process, but it never occurred in the case at bar and Respondent was denied his due
process rights.
The referee never provided written notice to the parties that the report of
referee had been completed as mandated by Referee Manual Revised May 2010.
Further, the referee taxed costs in the bar’s favor and did not wait the “10 days
from the date the motion was filed in which to serve an objection” as required by
R. Regulating Fla. Bar 3-7.6(q)(5) and Referee Manual Revised. Also, the referee
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filed the Report prior to the expiration of “the time period for filing a motion to
assess costs by the prevailing party and the objection has run” as mandated in
Referee Manual Revised May 2010.
Additionally, the Report failed to comply with the Florida Standards for
Imposing Lawyer Sanctions III which require the consideration of “each of these
questions before recommending or imposing appropriate discipline:
(1)
duties violated;
(2)
the lawyer’s mental state;
(3)
the potential or actual injury caused by the lawyer’s misconduct;
(4)
the existence of aggravating or mitigating circumstances.”
The Report also stated that Respondent is 40 years old although same is factually
incorrect. Additionally, the Report found that Respondent ignored judge
Bronson’s order to redraft the exceptions without any findings or evidence that
Respondent knew exactly which language was to be removed from the original
exceptions.
The Report lacks legal analyses of the defenses based upon the rules and
caselaw or evidence to support a finding of guilt. A referee who is a chief judge
should be familiar with the rules of drafting and filing reports and the legal
analysis of the facts of the case and should not delegate same to bar counsel. The
defenses presented by Respondent were very detailed and included supporting
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caselaw, but the Report failed to specifically address why the defenses’ legal
underpinnings did not apply. At a minimum, the objectively reasonable analysis,
First Amendment, Fourteenth Amendment, Article I, § 4, § 9, § 10, Rule 4-8.4(d)’s
knowingly prong, taxation of costs, truth defense, verified pleadings, contracting,
and lack of clarity of the order should have been legally analyzed and supported by
detailed findings based on competent substantial evidence. The absence of a
detailed legal analysis and the due process violations demonstrate that the referee
delegated the task of drafting a sensitive dispositive Report to counsel and then
uncritically adopted the Report verbatim and same belies the appearance of justice.
The case sub judice is one in which the report should be vacated and the
charges dismissed as the referee failed to adhere to the ruling of Perlow, Corp.
Management Advisors, and Ross as it adopted the proposed report verbatim
without any demonstration of thoughtful and independent analyses of the facts,
issues, and law where the failure to demonstrate same belied the appearance of
justice.
Respondent’s Fifth and Fourteenth Amendment’s and Article I, § 9's due
process clauses have been violated as Respondent was not afforded a chance to
fully present his case and defenses and had costs taxed against him without a
chance to be heard. Pursuant to the Fifth and Fourteenth Amendments, Article I, §
9, Greene, State Plant Bd., and Tomayko, this Court should find that Respondent’s
57
due process rights were violated and vacate the Report, recommended discipline,
and the taxation of costs.
Issue IV
Parties are free to contract and the right is only limited by the justifiable needs of
the public, health, safety or welfare.
The Florida constitution protects the right to contract by stating that no “law
impairing the obligation of contracts shall be passed.” Article I, § 10. Parties are
free to contract and the right should only be limited to protect the needs of the
public, health, safety, or welfare. Larson v. Lesser, 106 So.2d 188, 191-192 (Fla.
1958). Although there is no such absolute right to freedom of contract, freedom is
the general rule and restraint should be the exception. Id. Rules Regulating the
Florida Bar 4-1.8(e) prohibits providing financial assistance to a client in
connection with a pending or expected matter, except that “(1) a lawyer may
advance court costs and expenses of litigation, the repayment of which may be
contingent on the outcome of the matter; and (2) a lawyer representing an indigent
client may pay court costs and expenses of litigation of behalf of the client.” R.
Regulating Fla. Bar 4-1.8(e).
In Larson, the appellee was a public adjuster who advertised his business
publicly and engaged in direct solicitation. Larson at 187. The appellee filed a
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declaratory action seeking to declare § 636.261 unconstitutional as it had the effect
to limit his business contrary to the Florida constitution and the United States
Constitution. Id. at 187-188. The appellant argued that the statute was merely a
reasonable regulation and use of the police power. Id. at 187. The chancellor held
the statute unconstitutional. Id. The chancellor’s reasoning was that the court
must consider the practical impact of the application of the statute on a citizen’s
constitutional rights rather than the strict letter of the law. Id. at 191. The
chancellor further reasoned that a statute may be properly declared unconstitutional
when, under the guise of regulation, a statute’s practical impact is to impede the
operation of a lawful business. Id. In affirming the finding of the
unconstitutionality of the statute, this Court held:
We ourselves have held that while there is no such thing as an
absolute freedom of contract, nevertheless, freedom is the general rule
and restraint is the exception. Any restraints imposed by legislation on
the right to contract must not be arbitrary or unreasonable. The right
to make contracts, whether for the acquisition of property or for
personal employment, is an aspect of private property which should
not be struck down or arbitrarily restrained unless such restraint be
reasonably justified by the needs of the public health, safety or
welfare. Id. at 191-192.
In the case at bar, Respondent was charged with violating R. Regulating Fla.
Bar 4-1.8(e) and the Report found that there was clear and convincing evidence of
same as it states that “if the funds received by respondent were his fee, then there is
no question respondent advanced funds to his client. . . . If, on the other hand,
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some of the funds received by respondent were to be used for a specific purpose,
then those funds should have been placed in respondent’s trust account to be used
only for the purpose for which they were intended. Based upon the testimony and
evidence, it is clear no funds were placed in the respondent’s trust account.” (A-56). However, the Report contradicts itself and identifies the real nature of the
funds. The money was given by Jensen’s father for Jensen’s benefit and was
expected to be “rapidly deployed” due to Mr. Jensen’s financial situation and to get
Mr. Jensen out of jail when he was held in contempt for non-payment of child
support.” (A-5). The two statements can not be squared as demonstrating clear
and convincing evidence when the referee found that there was a basis for both
positions. The Report appears to select one and state that there was clear and
convincing evidence that demonstrated that the funds were advanced to the client
and they were not a court cost or expense of litigation as required by the Rules
Regulating the Florida Bar.
The Report does not reflect the evidence and does not address the fact that
Respondent treated the funds as a differentiated retainer where $3,000 remained in
cash and was subject to claim by Respondent. (T-248). Further, the Report
erroneously states that trust funds had to be kept in the trust account as rule 51.1(a)(3) specifically states that trust funds may be stored in a safe deposit box.
Considering the aforementioned, the bar failed to preclude the funneling of funds
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through the convenience of the operating account and replacement with the funds
held as cash. It should be noted that rule 5-1.1(a)(1) specifically envisions funds
being used for “fees, costs, and expenses” and does not preclude the payment of a
purge amount (fees for the GAL on behalf of the children) when considering rule
5-1.1(b)’s statement that “money or other property entrusted to an attorney for a
specific purpose, including advances for fees, cost, and expenses, is held in trust
and must be applied only to that purpose.” Emphasis added.
The rule does not preclude funds from being used for other purposes as
directed by the party giving the funds and the other party holding the funds.
Neither rule 4-1.8(e) nor 5-1.1(b) preclude the short-term utilization of operating
funds and a subsequent reclamation of same from a cash amount. Further the rule
is unconstitutionally vague as explained in Issue I. Since the “litigation costs and
expenses” are not defined by the rule, it makes sense that the parties are free to
define what constitutes same.
The funds in the instant matter were given by Mr. Jensen’s father, who was
not a party to the action, with the intent of Respondent utilizing same as he saw fit
to protect his son, Michael Jensen. (A-5). Some of the funds were placed in the
operating account and some were held in cash. Respondent specifically advanced
funds that his father gave from his operating account, with the ability to recover
same from the amount held in cash, for the specific purpose of getting Mr. Jensen
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out of jail -- a purpose that was readily acknowledged in the Report’s findings and
agreed to by Jensen’s father and Respondent. (A-5).
In the instant case, the bar has failed to prove by clear and convincing
evidence that Respondent violated rule 4-1.8(e) as it failed to prove: (1) that a
contract existed between Respondent and his client, and if so, the nature of the
contract; (2) the funds were advanced to the client without the necessity of
repayment; (3) that the funds were not utilized as mandated in accordance with rule
4-1.8(e); (4) that the contractual relationship between Mr. Jensen’s father and
Respondent for payment of any and all of his son’s legal expenses was prohibited
by rule 4-1.8(e); and, if so, (5) that such prohibition does not run afoul of the Fifth
and Fourteenth Amendments and Article I, § 9 and § 10, and Larson.
There is no evidence to demonstrate that Respondent advanced his client
funds in violation of rule 4-1.8(e) as alleged by the bar and stated in the Report; but
rather, Respondent utilized the father’s $3,000.00 held in cash and advancing same
on the father’s behalf by funneling same through his operating account with the
ability to immediately reclaim same. Further, the rule does not preclude the
advancement of funds for any purpose to a client on behalf of third parties with the
requirement of repayment. Therefore, count I should be dismissed as the bar has
failed to prove by clear and convincing evidence that Respondent violated rule 41.8(e) and the referee’s finding that there was clear and convincing evidence is
62
belied by the absence of competent substantial evidence that Respondent violated
rule 4-1.8(e).
This case is similar to Larson as the issues revolve around whether one rule,
4-1.8(e), precludes a lawful engagement of a contract for payment under a different
rule, 5-1.1(b), or under general contracting terms, where funds or services are
advanced or provided to a third party client pursuant to an agreement.
The practical impact of applying a rule that prevents or limits the utilization
of funds for an agreed upon purpose would have a chilling effect on attorneys
taking cases where a third party is paying with directions on how to deploy the
funds and could prevent many people from being represented.
Rule 4-1.8(e), as drafted and enforced herein is unconstitutional as it is
vague, overbroad, subject to capricious and arbitrary enforcement, and violates
Article I, § 10. This Court should find that Respondent did not violate rule 41.8(e) as there is no competent substantial evidence to support same as parties have
a right to contract unless there is a specific restraint reasonably justified by the
needs of the public health, safety or welfare.
Issue V
Verified pleadings and affidavits are the words of the person verifying or swearing
to the statements.
Verified pleading by their very nature are personal to the person swearing to
them. Black’s Law Dictionary, Seventh Edition, defines “affidavit” as “a voluntary
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declaration of facts written down and sworn to by the declarant before an officer
authorized to administer oaths” and “verification” as “a formal declaration made in
the presence of an authorized officer, such as a notary public, by which one swears
to the truth of the statements in the document.” The purpose of an attorney
drafting an affidavit or verified pleading is to reflect the intention of the person
signing the document. See Schroeder v. Gebhart, 825 So.2d 442, 445 (Fla. 5th
DCA 2002) and Resolution Trust Corp. v. Bright, 6 F.3d 336, 339-340 (C.A. 5
(Tex.) 1993). An attorney who fails to draft an affidavit or verified pleading in
accordance with the affiant’s intentions is subject to sanctions. See Resolution
Trust Corp. at 339-340.
In Resolution Trust Corp. (RTC), two RTC attorneys interviewed a bank
official about the calculations used to prepare a report on her employer bank’s
financial health. See id. at 338. After the interview, the attorneys requested the
bank official to sign an affidavit that contained information that she had neither
stated nor supported. See id. at 338-339. The affiant made semantical and
substantive changes, was questioned about her views of the changes and whether
her views could match the attorneys’, and whether she would revise her statements.
See id. at 339. The affiant declined and the attorneys incorporated all of the
affiant’s changes into the final draft that she signed. See id. A motion for
sanctions was sought based on the RTC attorneys’ conduct of aggressively
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questioning the affiant and asking her if she could see things their way. See id. at
339-340. The district court granted the motion for fees and disbarred the attorneys
from practicing before him. See id. at 340. In reversing, the circuit court
concluded that attorneys could be sanctioned for including statements that were not
those of the affiant, but a determination of sanctions must be based on the specific
facts of the case and whether the statements had a factual basis or were known to
be false. See id. at 340-341. The attorneys, while aggressive in advocating their
position, drafted the affidavit as intended by the affiant and could not be
sanctioned for same. See id. at 341-342.
In the case at bar, it is uncontroverted that Darrell Matthew signed the
verified motion and directed Respondent on the concepts that he wanted included.
(T-341-346). Matthew testified that the language that he wanted to use was
rejected by his counsel, Respondent, as he found the words to be vulgar and
inappropriate. (T-341-346). However, upon a detailed review, with drafting and
redrafting, Matthew was satisfied with the wording and adopted same as his own
by signing the document and affirming it under oath. (T-341-346).
The bar and referee’s positions are that the contents and words of the
verified motion are Respondent’s since he was the drafter and that said words did
not constitute legal argument. Resolution Trust Corp., is instructive and
demonstrates that the bar and referee’s positions are in error as the purpose of a
65
verified motion or affidavit is to accurately reflect the intent of the affiant. It is
uncontroverted that Respondent accurately reflected the intent of the affiant as
demonstrated by Matthew’s testimony and the verified motion. Further, neither the
bar, referee, nor report cited to any rule in the Rules Regulating the Florida Bar
that stands for the proposition that a verified motion constitutes the attorney’s
words and adoption of same or that there is a rule against an attorney wholly
supporting his or her client’s position and/or words. In the absence of a specific
rule prohibiting an action, the attorney has discretion to act or not to act, and “no
disciplinary action should be taken when the lawyer chooses not to act or acts
within the bounds of such discretion.” See Rules. Reg. Fla. Bar. Chapter 4,
preamble, a lawyer’s responsibilities. Improperly restraining an attorney from
drafting a document in accordance with the client’s desires violates the client’s
First Amendment right. Further, even if the words are deemed to be Respondent’s,
they are truthful utterances and the analyses of issues I and II apply.
Pursuant to the First Amendment, Article I, § 4, Resolution Trust Corp., and
Rules. Reg. Fla. Bar. Chapter 4, the Report should be vacated and the charge
involving Matthew’s Verified Motion to Disqualify should be dismissed.
66
Conclusion
The Report should be vacated and the charges against Respondent should be
dismissed as: (1) Rule 4-8.4(d) is unconstitutional pursuant to the First and
Fourteenth Amendments and Article I, § 4 because it infringes on the freedom of
speech as it is vague, subject to multiple interpretations, subject to arbitrary and
capricious enforcement, and fails to have a safe harbor provision for the truth; (2)
Respondent’s statements are not subject to discipline pursuant to rule 4-8.4(d) as
they are bottomed on an objectively reasonable basis and there was no evidence
presented that Respondent had the requisite mens rea to violate the knowingly
prong of the rule; (3) Rule 4-8(e) is unconstitutionally vague and unreasonably
limits an attorney’s right to contract with third parties in violation of Article I, §
10; (4) Respondent’s Fourteenth Amendment and Article I, § 9 due process rights
were violated when he was precluded from presenting his case and defenses in a
meaningful fashion and costs were taxed against him without the opportunity to be
heard; (5) the verified pleading was not Respondent’s; (6) the referee failed to
exercise and demonstrate impartiality and independence in the verbatim entry of
the proposed report; and (7) the referee failed to comply with the mandatory
procedural rules in submitting the report and taxing costs.
WHEREFORE, Carlton Pierce, requests this Court to:
A.
Vacate the Report, recommended discipline, and taxation of costs;
B.
Dismiss all charges; and,
C.
Grant such other and further relief as is just and equitable.
Certificate of Service
I certify that a copy hereof has been furnished to Keshara D. Davis, Esquire, 1000
Legion Place, Suite 1625, Orlando, FL 32801-5200 by U.S. mail on November 4,
67
2011.
Certificate of Compliance
I certify that this brief is computer-generated in Times New Roman 14-point font
and complies with Fla. R. App. P. 9.210.
Carlton Pierce, Esquire
Carlton Pierce, P.A.
P.O. Box 223723
West Palm Beach, FL 33422-3723
Ofc.: (407) 345-5258
Fax: (407) 536-4333
E-mail: [email protected]
FBN: 0610879
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