Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Florida Supreme Court which rejected a referee’s recommended 91 day suspension and imposed a one (3) year suspension for the lawyer’s misconduct in filing frivolous pleading and false criminal allegations against opposing party who obtained a sanctions judgment against him. The opinion is The Florida Bar v. Committe, No. SC11-468 (Fla. April 3, 2014) and the full opinion is at: http://www.floridasupremecourt.org/decisions/2014/sc11-468.pdf.
According to the opinion, in March 2011, The Florida Bar filed a complaint against the lawyer alleging the following facts:
“In December 2002, Committe filed a civil lawsuit on behalf of a client against the defendant. The complaint alleged two counts, one for malicious or tortious interference with a business relationship, and one for slander. Counsel for the defendant filed a motion for summary judgment. The circuit court held a hearing on the motion and, in June 2004, issued a ‘Final Summary Judgment’ order in favor of the defendant. In relevant part, the circuit court held that there was no admissible evidence upon which a cause of action for either count alleged in Committe’s complaint could stand. The court further held that even if certain evidence would be admissible over a hearsay objection, there was nothing to indicate that any of the defendant’s statements were false or malicious.
The circuit court reserved jurisdiction to rule on the defendant’s motion for attorney’s fees and costs. Committe did not appeal the Final Summary Judgment order at that time. In October 2004, the circuit court held a hearing on the defendant’s motion for attorney’s fees. Following the hearing, on October 29, 2004, the court entered an Order on Defendant’s Motion for Attorney Fees and Costs. In the order, the court held that Committe and his client knew or should have known that the claims asserted in their complaint were not supported by the material facts; would not be supported by the application of then-existing law to those facts; and were frivolous.
Accordingly, the circuit court awarded the defendant $13,000.00, to be paid in equal shares by Committe and his client. Subsequently, in January 2005, the circuit court entered a “Final Judgment” in the civil case. Committe appealed the order to the First District Court of Appeal. In February 2007, the district court per curiam affirmed the circuit court’s ruling. Following the appeal, the defendant, who was by then not represented by an attorney, sent Committe two letters, one in December 2007 and one in May 2008, seeking payment of the attorney’s fees and costs awarded to her in the circuit court’s October 2004 order. Several days after receiving her May 2008 letter, Committe wrote to the United States Attorney, accusing the defendant of attempting to extort money from him and requesting that she be criminally prosecuted.”
The referee’s report recommended that the lawyer be found guilty of violating Rules 4-3.4(g) (present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter) and 4-8.4(d) (engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) and that he gave false testimony during the disciplinary hearing; however, he found the lawyer not guilty of violating Rules 4-3.1 (meritorious claims and contentions) and 4-3.4(c) (knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. The referee recommended that the lawyer be suspended for ninety-one (91) days.
In July 2013, the Court issued an order immediately suspending the lawyer and directing him to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction imposed. The opinion approved the referee’s findings of fact and that the lawyer be found guilty; however, the opinion found him guilty of violating Bar Rules 4-3.1 and 4-3.4(c) and also disapproved the referee’s recommended discipline. According to the opinion,
“In the case presented here, Committe filed a frivolous and meritless lawsuit against the defendant, wasting both her time and resources and those of the court system. The circuit court dismissed the suit and ordered Committe to pay a portion of the defendant’s attorney’s fees and costs; however, Committe has refused to comply with the order for years. When the defendant attempted to collect the money she was owed, Committe reported her to the United States Attorney for alleged extortion.
Considering these events together, it is clear that Committe’s misconduct is serious and egregious, and that it caused harm to both the defendant and the court system, warranting a severe sanction. We have also considered the significant aggravating factors found by the referee: a disciplinary history; a pattern of misconduct; multiple offenses; submission of false evidence or statements during the disciplinary process; vulnerability of the victim; and substantial experience in the practice of law.
Committe’s conduct in this case, considered together with his disciplinary history, his false statements to the referee, and the other aggravating factors, clearly demonstrates that he is abusive of the legal process. We conclude that this type of serious misconduct and unethical behavior warrants a more severe sanction than that recommended by the referee. Accordingly, we disapprove the referee’s recommendation, and instead suspend Committe for three years.
Bottom line: This case illustrates how a lawyer can get into a serious ethical quandary by filing a lawsuit which is apparently not supported by “admissible evidence upon which a cause of action…could stand”, then more seriously compounding his potential culpability by apparently refusing to pay the judgment that was rendered against him for the frivolous filing and then, astoundingly, by writing to the U.S. Attorney “accusing the defendant (the opposing party) of attempting to extort money from him and “requesting that she be criminally prosecuted” when she tried to collect on the judgment almost 4 years later.
Let’s be careful out there!
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670