IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, CASE NO. SC [TFB no ,424(05B)(CRE)] REFEREE REPORT

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, [TFB no ,424(05B)(CRE)] // SUMMARY OF PROCEEDINGS: The undersigned was appointed as referee to conduct reinstatement proceedings according to the Rules Regulating The Florida Bar. The pleadings, motions, orders and exhibits constitute the record in this matter and are forwarded to the Florida Supreme Court. The following attorney s appeared as counsel: For Florida Bar Joann MarIe Stalcup, Esquire For the Petitioner Mark F. Germain, pro se Proceedings were held October 23, 2009, at the Alachua County Criminal Justice Center. The petitioner presented three witnesses in person, Susanne Pelcha, James Joseph Hope, Esquire, Gustavio Garcia, and testified in his own behalf. He also presented his resume, certificate of completion of a bible study course, a newspaper article and various letters of recommendation supporting his reinstatement to The Florida Bar. The Bar presented Walter Teller, staff investigator who testified to his investigation, largely reflected in various letters of lay individuals lawyers and jurists contacted by this investigator. The letters are included in the Bar s Reinstatement Notebook [Exhibit #1 for The Florida Bar]. Finally, the Bar and petitioner entered into a Stipulation, addressing in fourteen (14) numbered paragraphs, the requirements in Rule 3.710(f) Reinstatement and Readmission Procedures. The Bar

2 PAGE # 2 summarized the matter for decision by the Referee as two issues not subject to agreement in the stipulation: Petitioner s fitness to practice law, and whether he has proven unimpeachable character and moral standing in the community (Rule 3.710(3)(B)). FINDING OF FACTS: Petitioner Mark F. Germain, age 52, was admitted to The Florida Bar May 31, The current Petition for Reinstatement follows the Florida Supreme Courts opinion issued May 17, 2007, in SC and SC , suspending petitioner from the practice of law for one year with conditions. This followed previous Bar disciplinary matters resulting in the opinion issued November 13, 1997, in SC and the opinion issued July 28, 2001 in SC At the time of the hearing, petitioner had remained suspended for two years and five months. The Referee accepts as true and proven the matters addressed in the Stipulation of the parties. Furthermore, the Referee finds petitioner has met his burden on the ultimate issue of his fitness to resume the practice of law, and that his current character and current moral standing in his community is unimpeachable. Some of the letters and summaries of conversations introduced by the Bar do object to reinstatement. However, these objections are based on the past conduct for which the petitioner was held accountable by the Supreme Court. According to the Stipulation, he has met each disciplinary requirement addressed and committed no violation of Rule 3.710(f)(i)(A) through (N). The letters and testimony in support of petitioner show his standing in the Lake County, Florida community, his continuing contribution to the Hispanic population and his participation in voluntary services to non- profit organizations. He also has support of two attorneys who volunteered to mentor petitioner if such requirement was deemed necessary for reinstatement (Andrew Colando, Jr., Esquire and James Joseph

3 PAGE # 3 Hope, Esquire). The letters of judges interviewed by The Bar include one jurist who did not feel qualified to make a recommendation, one jurist who would not recommend reinstatement, and four jurists who did recommend reinstatement. RECOMMENDATION: Petitioner Mark F. Germain be reinstated to the practice of law. It is further recommended that such reinstatement be conditioned upon petitioner s compliance with a one year probation with conditions as specified below. Despite the compliance with the prior disciplinary order of the Florida Supreme Court and compliance further reflected in the stipulation of the parties, this Referee believes the probation with the conditions requested by The Florida Bar at the hearing and in writing November 17, 2009, are necessary to a successful reinstatement of petitioner to The Florida Bar. Therefore the Referee recommends the following conditions be part of the one year probation: 1. Petitioner shall be placed on one year probation during which he will be supervised by attorney James Joseph Hope, Florida Bar No , located at Post Office Box 1133, Tavares, Florida The supervising attorney and petitioner shall communicate on a weekly basis and meet in person when deemed necessary by the supervising attorney to discuss petitioner s case load and any particular difficulties petitioner is having with clients, litigants, jurors, witnesses, court personnel, other lawyers, and/or judges in an effort to ensure that petitioner does not engage in conduct that violates the Rules Regulating The Florida Bar. 3. Petitioner shall provide the judges before whom he appears the name of his supervising attorney and shall agree that the judge may, if the judge deems necessary, address petitioner s conduct with the supervising attorney. 4. The supervising attorney shall review all pleadings prior to petitioner filing same before the courts. 5. The supervising attorney shall provide quarterly reports to The Florida Bar regarding the status of petitioner s case load and conduct toward his clients, opposing parties, opposing

4 PAGE # 4 counsel, and/or the judges. 6. Petitioner shall be responsible for submission of the quarterly reports to the headquarters of The Florida Bar. The quarters are March 31, June 10, September 10 and December Petitioner shall pay a quarterly monitoring fee of $ to The Florida Bar. All quarterly monitoring fees must be remitted no later than the end of each respective quarter in which the monitoring fee is due. All fees must be paid to the Bar s headquarters in Tallahassee. Finally, having reviewed the Florida Bar s Affidavit of Costs, Petitioner s Objection to Affidavit of Costs and the Florida Bar s Response to Petitioner s objection to Affidavit of Costs, it is recommended petitioner pay the amounts specified in the Affidavit of Costs, three thousand eight hundred sixty three dollars and five cents ($3,863.05). Respectfully submitted in Chambers in Gainesville, Alachua County Florida, this 18th day of December, /S/ STAN R. MORRIS, REFEREE CIRCUIT JUDGE EIGHTH JUDICIAL CIRCUIT OF FLORIDA CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished on this 18th day of December A.D., 2009, to the following: Joann Marie Stalcup, Esquire Bar Counsel The Florida Bar 1200 Edgewater Drive Orlando, FL Supreme Court of Florida Supreme Court Building 500 Duval Street Tallahassee, FL Via U.S. Mail and e-file@flcourts.org

5 PAGE # 5 Mark F. Germain 2305 Hutchinson Avenue Leesburg, FL Staff Counsel The Florida Bar 651 East Jefferson Street Tallahassee, FL /S/ Stacy Thackrey Judicial Assistant