PRELIMINARY STATEMENT. Michael Howard Wolf, Appellee, will be referred to as "respondent". The symbol

Transcription

1 PRELIMINARY STATEMENT The Florida Bar, Appellant, will be referred to as "the bar" or "The Florida Bar". Michael Howard Wolf, Appellee, will be referred to as "respondent". The symbol "RR" will be used to designate the report of referee. CERTIFICATE OF TYPE, SIZE AND STYLE and ANTI-VIRUS SCAN Undersigned counsel does hereby certify that the Brief of The Florida Bar is submitted in 14 point proportionately spaced Times New Roman font, and that the computer disk filed with this brief has been scanned and found to be free of viruses, by Norton AntiVirus for Windows. 1

2 STATEMENT OF CASE AND FACTS The Florida Bar s statement of the case and facts is complete and supported by the record. The Respondent, however, would like to highlight the mitigation found by the referee. At page six of his report, the referee accepted the following as mitigation: A. Respondent has been a member of The Florida Bar since 1997 and has not been disciplined previously. B. There was a delay in disciplinary proceedings. Respondent did not contribute to the delay. Further, respondent has shown specific prejudice resulting from the delay. This matter took place almost (3) years ago. The complaint was not filed until now because the grievance committee wanted to wait to ascertain the outcome of the underlying criminal proceedings. C. Respondent has attended FLA and is currently attending Gamblers Anonymous. Respondent is further being treated by two (2) psychologists. D. Respondent is remorseful for his conduct in this case. After considering the foregoing, the referee decided that the proffered consent judgement for a public reprimand and placement on probation for one (1) year with the following conditions that: (a) he attend regular meetings of Gamblers Anonymous; (b) he enter into a F.L.A. contract for a period to be determined by F.L.A., which shall be for a period of at least one (1) year and (c) that he continue with his current 2

3 psychological treatment, should be accepted. The Court has requested briefs on the appropriate nature of the proposed resolution. It is respectfully suggested that the Court should ratify the Report of Referee and accept the consent judgement. SUMMARY OF ARGUMENT 3

4 The recommended sanction in this case, a public reprimand followed by one year of F.L.A. probation, is an appropriate resolution of the respondent s misconduct. While there is a broad range of discipline that could be recommended for the respondent s unethical activity, a public reprimand is ordinarily an approved discipline for misdemeanors. This is especially true when the misdemeanor is unrelated to the practice of law. The respondent in this case had a gambling addiction and applied for, received and attempted to use a driver s license in his deceased father s name. When caught, he immediately sought a cure for his illness and took steps to pay for his misconduct. The respondent has continued with his treatment program and is truly remorseful for his actions. Further he has accepted responsibility for his misconduct by entering into a consent judgement with The Florida Bar. The referee, after considering the nature of the misdemeanor and the mitigation present in this case accepted the proposed public reprimand. The respondent asks the Court to do the same. ARGUMENT 4

5 I. THE RECOMMENDED PUBLIC REPRIMAND AND ONE YEAR FLORIDA LAWYERS ASSISTANT, INC., PROBATION IS AN APPROPRIATE SANCTION FOR A MISDEMEANOR CONVICTION. The only issue before the Court is whether the proposed Consent Judgement for a public reprimand and one year Florida Lawyers Assistance, Inc., ( F.L.A. ) probation is an appropriate resolution of the respondent s unethical conduct. The referee after considering all of the facts and circumstances concerning the respondent s misdemeanor conviction and after weighing the mitigation present in this case has recommended that this Court accept the proposed consent Judgement. This Court has noted that they will not second-guess a referee s recommended discipline as long as that discipline has a reasonable basis in existing case law and in the Florida Standards for Imposing Lawyer Sanctions. The Florida Bar v. Temmer, 753 So. 2d 555 (Fla. 1999). The Florida Bar, in its Initial Brief and in reaching the proposed resolution with the Respondent, is in agreement that this is a correct sanction for the respondent s actions. A. A Public Reprimand is Warranted Under the Circumstances. The Bar in its Initial Brief explains that a public reprimand is the only appropriate sanction pursuant to the case law and the Standards for Imposing Lawyer Sanctions... Initial Brief at p. 5. While the Respondent agrees with the Bar s 5

6 analysis that the misconduct at issue should be punished by way of a public reprimand, he must candidly admit that not all misdemeanors are punished in the same manner. For example in The Florida Bar v. Rendina, 583 So. 2d 314 (Fla. 1991), the lawyer was disbarred because the Court believed that the criminal activity, the attempt to bribe a state attorney to obtain a lesser criminal sentence for his client, went to heart of our adversary system. The case at hand has no such impact on the purity of the courts. Instead the instant action is closer to the cases referred to in the bar s brief, as well as the matters referenced below. Misdemeanor convictions have resulted in various suspensions depending upon the gravity of the conduct. See for example The Florida Bar v. Poplack, 599 So. 2d 116 (Fla. 1992) [30 day suspension for lying to a police officer about an attempt to steal an automobile]; The Florida Bar v. Pearce, 631 So. 2d 1092 (Fla. 1994) [45 day suspension for a federal conviction of failing to pay and file income tax returns for two years]. Other lawyers have been publicly reprimanded for acts constituting a misdemeanor. See for example The Florida Bar v. Pascoe, 526 So. 2d 912 (Fla. 1988) [possession of marijuana]; The Florida Bar v. Levine, 498 So. 2d 941 (Fla. 1986) [possession of cocaine]; The Florida Bar v. Fields, 520 So. 2d 272 (Fla. 1988) [DUI conviction coupled with usury and trust accounting issues]. Justice Ehrlich, in a dissenting opinion in Levine, even went so far as to question whether it was necessary 6

7 to discipline all lawyers who had engaged in misdemeanor level criminal activity. Id. at 943. The Bar may even be willing to concede that some misdemeanor convictions have resulted in minor misconduct findings, diversions or no sanction at all. While acknowledging that the use of a public reprimand as a disciplinary sanction runs the full range of unethical activity, lawyers have engaged in more egregious conduct that the respondent and still received public reprimands. For example in The Florida Bar v. Baccus, 329 So. 2d 274 (Fla. 1976), the attorney received a public reprimand even though he was found guilty of inducing and causing the uttering of a forged instrument (a mortgage). Similarly in The Florida Bar v. Gaer, 380 So. 2d 429 (Fla. 1980), the lawyer was found guilty of three counts of legal solicitation and two related misdemeanors due to the sharing of fees with a bail bondsman. The Court in Gaer, went on to reject the Bar s request for a sixty day suspension due to the mitigation that was present in the case. B. There is ample mitigation for the misconduct. As in any disciplinary matter, the Court must consider the aggravation and mitigation prior to reaching a sanction. In the case at hand no aggravation is shown and the record does indicate substantial mitigation. The report of referee, at page six, indicates the referee accepted the following as mitigation: 7

8 A. Respondent has been a member of The Florida Bar since 1997 and has not been disciplined previously. B. There was a delay in disciplinary proceedings. Respondent did not contribute to the delay. Further, respondent has shown specific prejudice resulting from the delay. This matter took place almost (3) years ago. The complaint was not filed until now because the grievance committee wanted to wait to ascertain the outcome of the underlying criminal proceedings. C. Respondent has attended FLA and is currently attending Gamblers Anonymous. Respondent is further being treated by two (2) psychologists. D. Respondent is remorseful for his conduct in this case. There foregoing equates to a finding that Standards 9.31(a); 9.31(c); 9.31((h); 9.31(i) and 9.31(l), of the Standards for Imposing Lawyer Sanction are present as mitigation in this case. While not in the report of referee, but available in the record are other mitigating factors. Firstly, the respondent has, by virtue of his criminal prosecution, suffered the imposition of other penalties or sanctions as referenced in Standard 9.3(k). Secondly, Standard 9.3(j) [interim rehabilitation] can be inferred from his ongoing participation 1 in FLA and Gamblers Anonymous, as well as his continued psychological treatment. Lastly, due to respondents acceptance of responsibility for his acts by entering into a consent judgement for a disciplinary 1 Which participation has been ongoing for approximately three years. 8

9 sanction has demonstrated Standard 9.31(e) [cooperative attitude towards proceedings]. The bar at pages 8 and 9 of its Initial Brief discusses mitigation and reaches the conclusion that even if the Court believed that the underlying misconduct warranted a sterner sanction than a public reprimand, then the mitigation present in this case would warrant a reduction in that sterner sanction to a public reprimand. The Respondent agrees with this analysis. CONCLUSION Based on the case law and the Standards, the appropriate sanction for the respondent s misconduct is a public reprimand followed by probation. The referee s recommended sanction would meet the criteria underlying all bar sanctions: fairness to both the public and the accused; sufficient harshness to punish the violation and encourage reformation; and severity appropriate to function as deterrent to others who might be tempted to engage in similar misconduct. The Florida Bar v. Lord, 433 So.2d 983 (Fla. 1983). WHEREFORE, The Florida Bar respectfully requests this court to enter an order approving the Report of Referee and imposing a public reprimand followed by one (1) year of probation with the conditions expressed in the Report of Referee. Respectfully submitted, 9

10 ENTIN, MARGULES & DELLA FERA, P.A. 200 East Broward Boulevard Suite 1210 Fort Lauderdale, FL Telephone: (954) By: ALVIN E. ENTIN Fla. Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing Answer Brief of The Florida Bar has been furnished via regular U.S. mail to Adria Quintella, Assistant Staff Counsel, The Florida Bar, 5900 N. Andrews Avenue, Suite 835, Ft. Lauderdale, FL on this 23 rd day of January, ALVIN E. ENTIN 10

11 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, ) ) Case No. SC Complainant-Appellee, ) ) v. ) ) The Florida Bar File MICHAEL HOWARD WOLF, ) No ,629(17I) ) Respondent-Appellant. ) ) WOLF'S ANSWER BRIEF ALVIN E. ENTIN, ESQUIRE, # ENTIN, MARGULES & DELLA FERA, P.A. 200 East Broward Boulevard Suite 1210 Fort Lauderdale, FL Telephone: (954)

12 TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS... i TABLE OF CASES AND CITATIONS... ii PRELIMINARY STATEMENT... 1 CERTIFICATION AS TO FONT SIZE AND STYLE... 1 STATEMENT OF CASE AND FACTS... 2 SUMMARY OF ARGUMENT ARGUMENT... 5 I. THE RECOMMENDED PUBLIC REPRIMAND AND ONE YEAR FLORIDA LAWYERS ASSISTANT, INC., PROBATION IS AN APPROPRIATE SANCTION FOR A MISDEMEANOR CONVICTION A. A Public Reprimand is warranted under the circumstances... 5 B. There is ample mitigation for the misconduct... 7

13 i TABLE OF CASES AND CITATIONS CASES PAGE(S) 1) The Florida Bar v. Baccus, So.2d 274 (Fla. 1976) 2) The Florida Bar v. Fields, So.2d 272 (Fla. 1988) 3) The Florida Bar v. Gaer, So.2d 429 (Fla. 1980) 4) The Florida Bar v. Levine,... 6, So.2d 941 (Fla. 1986) 5) The Florida Bar v. Lord, So.2d 983 (Fla. 1983) 6) The Florida Bar v. Pascoe, So.2d 912 (Fla. 1988) 7) The Florida Bar v. Pearce, So.2d 1092 (Fla. 1994) 8) The Florida Bar v. Poplack, So.2d 116 (Fla. 1992) 9) The Florida Bar v. Rendina, So.2d 314 (Fla. 1991) 10) The Florida Bar v. Temmer, So.2d 1296 (Fla. 1996)

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