Hello and welcome to this Ethics Alert which will discuss the recent (February 16, 2012) Florida Supreme Court opinion which increased a referee’s recommended discipline from a 90 to a 91 day rehabilitative suspension. The case is: The Florida Bar v. Gwynn, —So.3d—, 2012 WL 489234 (Fla. 2012).
The referee found that the lawyer represented a client in a bankruptcy matter and, during the representation; she failed to expedite the litigation and filed numerous motions for sanctions against opposing counsel and other frivolous claims which “needlessly” delayed the bankruptcy proceedings. The referee also found that by failing to take substantive action in the case, the lawyer failed to competently represent her client and recommended that the lawyer be found guilty of violating Bar Rules: 4-1.1 (lack of competence); 4-3.2 (failure to expedite litigation); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); and 4-8.4(d) (lawyer conduct in connection with the practice of law that is prejudicial to the administration of justice).
The referee also found that on, April 26, 2006, the bankruptcy judge entered an order finding that the lawyer had acted in bad faith as a result her multiple frivolous filings. The order cited numerous instances where the lawyer acted dishonestly, incompetently, and in bad faith, specifically that she: (1) filed frivolous claims to harass her opponent and opposing counsel; (2) failed to research and verify claims she advanced in motions she filed with the court; (3) engaged in willful abuse of the judicial system; and (4) continually made allegations, both in pleadings filed with the court and in her testimony before the court, that were simply incorrect or false. The order found that the lawyer’s conduct was “objectively unreasonable and vexatious” and “sufficiently reckless to warrant a finding of conduct tantamount to bad faith … for the purpose of harassing her opponent.” The April 26, 2006 order imposed a $14,000.00 sanction and referred the matter to The Florida Bar for review and was affirmed by the United States District Court, Southern District of Florida.
Based on the above facts, the referee recommended that the lawyer be found guilty of violating the following additional Bar Rules: 4-3.1 (lawyer shall not bring or defend a proceeding or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous); 4-3.3(a)(1) (lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 4-4.1(a) (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(a) (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); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); 4-8.4(c) (dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (conduct in connection with the practice of law that is prejudicial to the administration of justice).
Finally, the referee found that despite the fact that the lawyer no longer represented any party in the case, she continued to file pleadings and papers with the federal bankruptcy court, and that on May 15, 2006, and the court entered an “Order Directing Mary Alice Gwynn, Esquire to Stop Filing Notices of Filing.” In this order, the bankruptcy judge found that the lawyer had filed hundreds of pages of documents pursuant to notices of Filings or notices to the court and directed her to stop filing such items unless specifically ordered to do so by the court or unless mandated by either the bankruptcy rules or the local rules.
On June 7, 2006, the court entered another order finding that even after the May 15, 2006 order was entered, the lawyer continued to file notices of filing, in defiance of the bankruptcy court’s order and she “improperly attempted to influence [the] court by filing numerous Notices of Filing containing inappropriate hearsay documents that are unrelated to any pending contested or adversary proceedings,” and in doing so, she “engaged in unprofessional conduct before [the] court.” The lawyer was fined $500.00 and the court ordered that she be fined $250 for each future document she filed in defiance of the court order.
Based on these facts, the referee recommended that respondent be found guilty of violating the following additional Bar Rules: 4-3.4(c) (lawyer knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); 4-3.5(a) (seeking to influence a judge, juror, prospective juror, or other decision maker except as permitted by law or the rules of court); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); and 4-8.4(d) (lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).
The referee recommended that lawyer be suspended for 90 days and pay the Bar’s costs. The lawyer sought review of the referee’s findings of fact and recommendation as to discipline. The Bar filed a cross-petition for review, seeking review of the referee’s recommendation as to discipline.
Citing two prior Bar discipline cases, Florida Bar v. Head, 27 So.3d 1 (Fla.2010) (1 year suspension) and Florida Bar v. Nunes, 734 So.2d 393 (Fla.1999) (3 year suspension), the Supreme Court opinion stated: “(g)iven the obvious seriousness of respondent’s misconduct in this case, we conclude that a ninety-one-day (rehabilitative) suspension is warranted.”
Bottom line: Based on the facts in the opinion, it is not surprising that the Florida Supreme Court increased the discipline in this case from that recommended by the referee; however, it is somewhat surprising that the suspension was not longer. In any event, the increase in the length of the suspension from 90 to 91 days does mean that the lawyer will be required to file a Petition for Reinstatement, must prove rehabilitation, and may potentially effectively be suspended for an additional 6 to 12 months.
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.
THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.
PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS
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If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at [email protected]. You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida. I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.
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Joseph A. Corsmeier, Esquire
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