IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR Case No. SC [TFB No ,112(18B)(CRE)]

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR Case No. SC [TFB No ,112(18B)(CRE)] IN RE: PETITION FOR REINSTATEMENT OF RICHARD SALVATORE AMARI, / REPORT OF REFEREE ON PETITION FOR REINSTATEMENT I. Summary of Proceedings: Pursuant to the undersigned being duly appointed as referee to conduct reinstatement proceedings herein according to the Rules Regulating The Florida Bar, the final hearing was held on September 17, The pleadings, notices, orders, and exhibits, which are forwarded to The Supreme Court of Florida with this report, constitute the record in this case. The following attorneys appeared as counsel for the parties: For The Florida Bar - Frances R. Brown-Lewis For The Petitioner - Mark S. Peters II. Findings of Fact: After considering all the pleadings and evidence before me, pertinent portions of which are commented on below, I find: 1. Petitioner was suspended from the practice of law by Florida Supreme Court order dated April 10, 2008, effective May 12, 2008, after he entered a guilty plea to two third degree felony charges (possession of cocaine and possession of a controlled substance) and two first degree misdemeanor offenses (possession of drug paraphernalia). The criminal court withheld adjudication of guilt on the felony charges and adjudicated Petitioner guilty of the misdemeanor offenses. Petitioner was sentenced to two years probation with drug offender conditions. Based upon the felony suspension, Petitioner and the Bar entered into a Consent Judgment for 1

2 Conditional Guilty Plea for an 18-month suspension, nunc pro tunc to his felony suspension, with the requirement that during his suspension period, he continue drug rehabilitation, enter into a three year contract with Florida Lawyers Assistance, Inc., and undergo periodic drug testing. Petitioner s involvement in substance abuse and addiction to cocaine rendered him unfit to practice law. His substance abuse, addiction and actions caused him to be arrested on three separate occasions at that time. Petitioner was incarcerated in the Brevard County Jail from May 12, 2008 to July 10, Upon release, he entered the Spencer Recovery Center, Inc., in St. Petersburg, Florida. He completed that program in February of 2009 and since that time through the present, he has participated in an AA program and a spiritually based recovery group. 2. The criminal charges filed against Petitioner have been resolved. Petitioner has not been adjudicated guilty of any felony. He has all of his civil rights. Petitioner has had his driver s license reinstated. All of the terms and conditions placed upon him by the criminal court and the Supreme Court of Florida have been abided by and have been completed. All fines and fees associated with those cases have been paid, including the costs of supervision. 3. Petitioner voluntarily signed a three year contract with Florida Lawyer s Assistance, Inc., on September 16, 2008, and, although he has not completed the term of the contract, he is meeting the obligations under the contract. He has undergone periodic drug testing and has not failed a single drug test. Petitioner has maintained sobriety for 28 months without any relapse of any kind. Mike Cohen, Executive Director of Florida Lawyers Assistance, Inc., Petitioner s counselors at the recovery center, his current monitor, and his pastor strongly recommended reinstatement. Petitioner regularly attends AA meetings, is active in presenting AA seminars, and recently has become the sponsor and mentor for his church s program that is similar to AA. Mr. Cohen specifically testified concerning the difference between Petitioner s recovery efforts since 2008 versus his recovery efforts in 2005 when he entered into a Florida Lawyers Assistance, Inc. contract. In 2005, Petitioner 2

3 struggled with his recovery and was not in compliance with the terms of his recovery contract. 4. Petitioner entered a rehabilitation program in 1985 and was sober for almost 19 years when in 2004, his addiction resurfaced and spiraled out of control. Petitioner thereafter entered several rehabilitation programs and periodically alternated between being sober and abusing drugs until May Petitioner has filed his federal income tax returns as required by Federal law and paid all taxes due. Petitioner s tax returns were reviewed by the Bar s auditor and Bar Counsel. No irregularities were found. 6. Petitioner has maintained his CLE hours and is current with his mandatory Continuing Legal Education credits. 7. During the period of suspension, Petitioner worked at Dr. Paul s at the Bay/Spencer Recovery Center as a residential advisor. Since 2009, he has worked part-time as a paralegal for several law offices. He complied with Rule reporting requirements and is in full compliance with the terms of his disciplinary order. The Bar interviewed all employers and there was no hint that Petitioner practiced law or held himself out as being entitled to do so during the period of suspension. He fully disclosed his past addiction problems to his employers and all indicated that Petitioner has shown no signs of relapse. All recommended Petitioner for reinstatement. 8. All costs due The Florida Bar arising from the disciplinary proceeding have been paid. 9. Civil and criminal court records were reviewed by the Bar and revealed no pending civil suits or criminal arrests. A criminal records check revealed only the above-referenced arrest history. The bankruptcy court records revealed Petitioner has not filed a petition for bankruptcy during the suspension period. 3

4 10. The Bar interviewed a former client who had a potential claim against Petitioner. Although the former client believed Petitioner misappropriated insurance premiums in the amount of $1, resulting in termination of the insurance policy, the attorney from Petitioner s former law firm who began representing this client after Petitioner left the firm in 2004 denied the validity of the client s accusations. He stated that Petitioner did not take any of the premiums for his own use and the insurance company terminated the policy after Petitioner left the firm. He assured the Bar this was not due to any fault of the Petitioner. 11. The majority of Petitioner s professional references recommended reinstatement and sincerely believe Petitioner has made great strides in his recovery and had high praise for his legal abilities. 12. Pursuant to R. Regulating Fla. Bar (g)(2), a hearing was conducted on September 17, 2010, during which Mitchell Goldman and James Theriac were provided the opportunity to provide information to this referee regarding their belief that Petitioner s petition for reinstatement should be denied. 13. One professional reference, Mitchell Goldman, did not recommend Petitioner for reinstatement based on his prior experience when Petitioner relapsed. Petitioner lied when he said he had stopped using drugs. Mr. Goldman, who formerly worked with Petitioner, had taken over Petitioner s cases while Petitioner was in rehab but after Petitioner relapsed, Mr. Goldman felt Petitioner could not be trusted. It was Mr. Goldman s belief that Petitioner did not have the mental acumen to practice law because of his 20 year addiction to crack cocaine. Mr. Goldman testified at the final hearing and reiterated his position that Petitioner, as a drug addict, should not be granted the privilege of practicing law. James Theriac, another professional reference and Petitioner s former law partner and business partner in a real estate development company, expressed skepticism about Petitioner s ability to avoid relapse. Although he declined to make any recommendation as to reinstatement during the Bar 4

5 investigation, he testified at the final hearing that it was his opinion that Petitioner s addiction was too great to allow a return to the practice of law. 14. Petitioner s former wife of 33 years was interviewed by the Bar. She stated that she remained concerned about the possibility for a relapse and believed Petitioner needed more time in recovery based on his previous relapse in the 1980s. She related that one of their daughters also expressed concern to her about Petitioner s ability to remain in recovery. Neither Petitioner s former wife nor his daughter testified at the final hearing and did not provide the Bar with any evidence other than their opinions. 15. Petitioner presented the testimony of 18 witnesses, either in person or by affidavit. While many have known Petitioner only since he began his recovery from his substance abuse problems, a significant number of the witnesses have known Petitioner for many years. All testified as to Petitioner s fitness to resume the practice of law and wholeheartedly supported his reinstatement without any reservations. 16. According to Petitioner, his substance abuse problems began many years ago and it spiraled out of control from there. He testified that his drug of choice was crack cocaine. Petitioner testified that he first entered treatment in 1985 and several times thereafter. He acknowledged that his previous efforts at sobriety were not successful. He testified how he believed this time with his recovery is different and how he has refocused his life upon his spiritual wellbeing. He stated that his life now was devoted to remaining drug free and that he was committed to doing everything needed to maintain his sobriety. He testified that, even if allowed to practice law again, his focus would be different than before. He would not be consumed with making money but rather with maintaining a sober lifestyle and being a help to others. He apologized to those who were harmed by his past behavior. 17. All of the elements for reinstatement as required under the decision of the Supreme Court of Florida in Petition of Wolf, 5

6 257 So. 2d 547 (Fla. 1972), have been met, which include: (1) strict compliance with the specific conditions of the disciplinary order, such as payment of costs, as was required in this instance; (2) evidence of unimpeachable character and moral standing in the community; (3) clear evidence of a good reputation for professional ability; (4) evidence of a lack of malice and ill feeling by the Petitioner toward those who by duty were compelled to bring about the disciplinary proceeding; (5) personal assurances, supported by corroborating evidence, revealing a sense of repentance, as well as a desire and intention of the Petitioner, to conduct himself in an exemplary fashion in the future. 18. While Petitioner s reinstatement to the practice of law was not unopposed, there was no evidence that Petitioner is in imminent danger of suffering a relapse. He has more than complied with the drug testing requirements, including voluntarily undergoing drug testing, and has fully complied with all requirements of his criminal drug offender probation and his Bar disciplinary suspension. The probation requirements set forth more fully below will facilitate his ongoing recovery efforts and, in the event he should suffer a relapse, facilitate early detection of such a relapse by the Bar in order to take appropriate actions to protect the public. This referee notes that, despite admittedly being addicted to crack cocaine for some 20 years, Petitioner s substance abuse never adversely affected his representation of clients. IV. Recommendations as to Whether the Petitioner Should Be Reinstated: After hearing all of the evidence and testimony, I recommend reinstatement of the Petitioner with the following conditions set forth more fully below. 6

7 V. Personal History and Past Disciplinary Record: Age: 54 Date admitted to Bar: November 14, 1980 Prior disciplinary convictions and disciplinary measures imposed therein: The Florida Bar v. Amari, 998 So. 2d 1146 (Fla. 2008) - 18 month suspension because of Petitioner s criminal conviction for possession of cocaine and possession of a controlled substance. VI. Recommendation as to Special Conditions or Probation: (1) 3 year period of probation upon reinstatement conditioned on Petitioner remaining under contract with Florida Lawyers Assistance, Inc. through September 16, (2) Abstain from using alcohol or mood altering drugs. (3) Prior to accepting any prescription for a mood altering drug, notify the prescribing physician about his participation in Florida Lawyers Assistance, Inc. and provide a copy of the prescription to Florida Lawyers Assistance, Inc. (4) Accept William Penrose or another person designated by Florida Lawyers Assistance, Inc. as a monitor. (5) Make at least one personal contact per month with the monitor. (6) Provide his monitor with documents requested by the monitor to substantiate Petitioner s performance under the contract. (7) Actively participate in a 12 step or other abstinence based program by attending at least two meetings per week, identifying a sponsor, mentor or guide and permitting that person to discuss Petitioner s recovery with Florida Lawyers Assistance, Inc. (8) Attend at least two attorney support groups per month. (9) Submit to Florida Lawyers Assistance, Inc. monthly records of support meetings attended. (10) Participate in any therapy required by Florida Lawyers Assistance, Inc. or other monitor. (11) Immediately notify Florida Lawyers Assistance, Inc. if Petitioner uses drugs or alcohol, has a grievance filed against him, or is arrested. (12) Submit to random drug testing at Petitioner s expense. (13) Provide communication release forms for therapists and treatment centers as requested by Florida Lawyers Assistance, Inc. 7

8 (14) Remain active as a volunteer in church or other community activities. (15) Remain active in AA, NA, or another 12 step program of recovery. VII. Statement of Costs and Manner in Which Costs Should be Taxed: This referee finds the following costs were reasonably incurred by The Florida Bar. A. Referee Level Costs: 1. Bar Counsel Travel Costs $ C. Administrative Costs pursuant to Rule 3-7.6(m)(1)(I), Rules of Discipline $ 1, D. Miscellaneous Costs: 1. Investigator Costs $ 1, Newspaper Legal Notices $ Subtotal: $ 3, MINUS COST DEPOSIT ($ ) TOTAL ITEMIZED COSTS: $ 2, It is apparent that other costs have or may be incurred. It is recommended that all such costs and expenses together with the foregoing itemized costs be charged to the respondent, and that interest at the statutory rate shall accrue and be payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar. It is further recommended that respondent shall be deemed delinquent and ineligible to practice law pursuant to R. Regulating Fla. Bar for failure to timely pay the costs assessed in this proceeding. 8

9 Dated this day of, Original to Supreme Court with Referee's original file. Copies of this Report of Referee only to: Kathryn Nelson Referee Frances R. Brown-Lewis, Bar Counsel, The Florida Bar, 1000 Legion Place, Suite 1625, Orlando, Florida, Mark S. Peters, counsel for Petitioner, at 5450 Village Drive, Viera, Florida, Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida

10 JOHN F. HARKNESS, JR. EXECUTIVE DIRECTOR <start typing here for letterhead page> THE FLORIDA BAR 1200 EDGEWATER DRIVE ORLANDO, FL LAWYER REGULATION DEPARTMENT 407/ UPL DEPARTMENT 407/

11 Richard Salvatore Amari P.O. Box St. Pete Beach, FL 33736

12 Frances R. Brown-Lewis Bar Counsel 1000 Legion Place, Suite 1625 Orlando, Florida

13 Kenneth Lawrence Marvin Staff Counsel 651 E. Jefferson Street Tallahassee, FL