Hello everyone and welcome to this JACPA Ethics Alert. This Ethics Alert will discuss the very recent Florida Supreme Court opinion which reversed a referee’s recommendation that a lawyer be found not guilty of dishonesty and increased the sanction from a 10 day suspension to a 91 day suspension. The case is The Florida Bar v. Berthiaume, No. SC08–1786., — So.3d —-, 2011 WL 5217514 (Fla. SC November 3, 2011).
According to the opinion, on September 25, 2004, the lawyer signed and served a document titled “Subpoena Duces Tecum” on Pelican Bank by U.S. mail. The purported subpoena directed the bank to produce certain records of the lawyer’s client, including checks the client had written to the lawyer from the client’s account at the bank, and which the bank had dishonored. The purported subpoena also stated: “If you fail to produce these records and the above requested information as described, you may be held in contempt of court, punishable by a fine or incarceration or both.” Finally, the subpoena had the phrase “civil action”; however, there was no pending civil case. The bank refused to honor the false subpoena and, through a lawyer, filed a Bar inquiry/complaint regarding the lawyer’s misconduct.
The referee found by clear and convincing evidence that the lawyer knowingly and deliberately sent the false subpoena and was responsible for the language in the fraudulent subpoena, including the language threatening incarceration and contempt. The subpoena was also designed the purposefully misleading subpoena to cause the bank to produce the records, even though there was no legal authority for the subpoena.
The referee recommended that the lawyer be found guilty of violating Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). The referee also recommended that the lawyer be found not guilty of violating Bar Rules 4-4.1 (in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person), 4-4.4 (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person), and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Finally, the referee recommended that the lawyer be suspended for ten (10) days.
Both the lawyer and the Bar petitioned the Supreme Court for review of the referee’s report. The lawyer argued that she should not be found guilty of violating Rule 4-8.4(c) since she was not found to have engaged in fraud. The Bar argued that the recommended discipline of a 10 day suspension was insufficient.
After citing to other Florida Bar discipline cases where lawyers were found guilty of violating Rule 4-8.4(c) without a specific finding of fraud, the opinion found that “the facts, record, and case law show that (the lawyer) is guilty of violating (Bar Rule 4-8.4(c)) due to her intentional misrepresentation and deceitful conduct…by…deliberately crafting and mailing the fraudulent subpoena that was ‘clearly designed to cause the bank to produce the records without legal authority.’’ Further, because the record and the referee’s findings showed that the lawyer “knowingly and deliberately sent the purported subpoena with the offending language,” which was “clearly designed to cause the bank to produce the records without legal authority,” and thus “clearly misleading”, the lawyer was guilty of violating Bar Rule 4-8.4(c).
After again discussing various Bar discipline cases, the opinion also rejected the referee’s recommended sanction of a ten (10) day suspension since it did not have a reasonable basis in existing case law and imposed a ninety-one (91) day suspension. The suspension is “rehabilitative” and will require that the lawyer file a Petition for Reinstatement and show rehabilitation and fitness to practice before a referee before she will be able to resume practicing law.
Bottom line: while the facts in this case appear to be quite blatant, this case finds that fraud does not have to pled and argued by the Bar to prove a violation of Bar Rule 4-8.4(c). This is also another example of the Supreme Court of Florida rejecting the findings and sanction recommendation of a referee and significantly increasing the discipline imposed on the lawyer. …be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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