Hello everyone and welcome to this Ethics Alert which will discuss a Florida Supreme Court opinion wherein the Court imposed an 18 month suspension on a lawyer who engaged in misconduct while representing himself as a party in a dissolution and child support proceeding. The case is The Florida Bar v. Madsen Marcellus, Jr., No. SC16-1773 and the July 19, 2018 Supreme Court opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc16-1773.pdf
According to the opinion, a 2010 Order in the dissolution matter required the lawyer to refinance the marital home, remove his ex-wife’s name from the property since he had moved out, or sell the home. Before the closing of a pending sale and the ex-wife had vacated, the lawyer moved back in and the sale fell through.
The lawyer was then unable to refinance the house and, in an attempt to obtain a modification of the mortgage, a friend of the lawyer who was a notary signed the ex-wife’s name on the application in front of the lawyer and notarized it without the ex-wife’s knowledge or consent.
The ex-wife became aware of false notarization after the lawyer failed to make payments under the modified mortgage and she was served as part of a foreclosure filing. The ex-wife then filed a motion for contempt since her name had not been removed from the house title as ordered. The trial judge withheld a contempt finding, but did order the lawyer to pay $2,500.00 the ex-wife’s fees.
The lawyer was served with discovery requests in the dissolution matter in 2013 related to his alleged failure to pay child support. He failed to respond and also failed to appear in court when he was ordered to do so by the judge. The lawyer was later sanctioned and ordered to pay the ex-wife’s fees. He also remained in violation of several family court orders throughout the disciplinary matter.
The referee rejected the lawyer’s claim he missed some court appearances because he was representing clients, and noted that he made no attempt to advise the court of any conflicts. The referee also found the lawyer was deceptive in the disciplinary process.
The opinion upheld the referee’s factual findings and the findings that the lawyer violated various Bar rules in his actions related to his dissolution and child support matters but increased the referee’s recommended discipline from a 12-month suspension to an 18-month suspension.
The opinion referred to various previous Bar cases where lawyers had committed less serious Bar rule violations and received one-year suspensions. The opinion also stated, as it has in previous Bar discipline opinions, that “the Court has ‘moved toward imposing stronger sanctions for unethical and unprofessional conduct.’ Fla. Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015).”
In addition, “(the lawyer’s) conduct was entirely unbecoming of a lawyer, who is held within a position of trust and respect in our society, and cannot be tolerated,” the court said in its opinion. “Although [the attorney] committed this misconduct as a party to his own divorce, lawyers ‘do not cast aside the oath they take as an attorney or their professional responsibilities’ just because they are litigants in personal matters. Fla. Bar v. Cibula, 725 So. 2d 360, 365 (Fla. 1998).”
Bottom line: This case involves a lawyer who engaged in personal ethical misconduct as a party to a personal dissolution matter. The Supreme Court opinion points out that the Court has “moved toward imposing stronger sanctions for unethical and unprofessional conduct” and lawyers “do not cast aside the oath they take as an attorney….just because they are litigants in personal matters.” Lawyers must comply with the Florida Bar rules, even while acting as a party in a personal civil matter.
Be careful out there.
Disclaimer: this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.
29605 U.S. Highway 19, N., Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670