IN THE SUPREME COURT OF FLORIDA (Before A Referee) The Florida Bar File No ,336(15D) FFC

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before A Referee) THE FLORIDA BAR, vs. Complainant, Supreme Court Case No. SC The Florida Bar File No ,336(15D) FFC JOHN ANTHONY GARCIA, Respondent. / APPELLANT/PETITIONER, JOHN ANTHONY GARCIA S, REPLY BRIEF G. Michael Keenan, Esquire G. MICHAEL KEENAN, P.A. Attorneys for Petitioner, JOHN ANTHONY GARCIA Suite Old Okeechobee Road West Palm Beach, FL (561) Telephone (561) Telefax

2 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITATIONS ii iii PRELIMINARY STATEMENT 1 REPLY STATEMENT OF CASE AND FACTS 2 SUMMARY OF ARGUMENT 6 ARGUMENT: I. 7 THE REFEREE IMPROPERLY FOUND THAT MR. GARCIA HAD A DISHONEST MOTIVE AND THAT PETITIONER WAS ENGAGED IN A PATTERN OF MISCONDUCT. II. 9 THE REPORT OF REFEREE FAILED TO CONSIDER AND WEIGH THE SUBSTANTIAL AND UNCONTROVERTED MITIGATION PRESENTED IN THIS CASE. CONCLUSION 15 CERTIFICATE OF SERVICE 17 CERTIFICATE OF COMPLIANCE 17 ii

3 TABLE OF CITATIONS Florida Supreme Court Cases Cited The Florida Bar v. Del Pino 955 So.2d 556 (Fla. 2007) 5,8,10,11 The Florida Bar v. Fertig 551 So.2d 1213 (Fla. 1989) 11 The Florida Bar v. Greene 926 So.2d 1195 (Fla. 2006) 5 The Florida Bar v. Pettie 424 So.2d 734 (Fla. 1983) 6 The Florida Bar v. Smith 866 So.2d 41 (Fla. 2004) 6,8,12 The Florida Bar v. Tauler 775 So.2d 944 (Fla. 2000) 12 Florida Standards for Imposing Lawyer Sanctions Standard iii

4 PRELIMINARY STATEMENT Appellant/Petitioner, JOHN ANTHONY GARCIA, will be referred to as Mr. Garcia or Petitioner. Appellee/Respondent, THE FLORIDA BAR, will be referred to as the Bar or Complainant. The Report of Referee will be designated as RR (indicating the referred page number). Exhibits submitted into evidence by the Bar and Mr. Garcia will be referred to as BEX- or PEX-, respectively, indicating the approximate exhibit number. References to the transcript of the proceeding shall be referred to as TR-, indicating the page number of the transcript. 1

5 REPLY TO STATEMENT OF CASE AND FACTS. In its Answer Brief, the Bar does not dispute the uncontroverted evidence that Mr. Garcia exhibited the highest degree of ethics, truthfulness and honesty in his life and his professional career prior to the incident complained of in this matter. The Bar does not take issue with the fact that Mr. Garcia did not profit from his conduct in this case. The Bar presented no evidence to contradict that Mr. Garcia expressed sincere and heartfelt remorse for his conduct recognizing the effect on his family and profession. The Bar presented no evidence to controvert that Mr. Garcia unconditionally accepted responsibility for his conduct and cooperated with the government in connection with its investigation, agreeing to plead guilty upon the filing of the information against him. The Bar failed to controvert that Mr. Garcia fully cooperated with the Bar in its investigation of this matter. The Bar presented no evidence that any client of Mr. Garcia suffered injury as a result of his conduct. The Bar presented no evidence to controvert that Mr. Garcia had, in fact, demonstrated interim rehabilitation in this cause. Mr. Garcia brings these matters to the Court s attention because the Report of Referee failed to consider them, as well as other mitigating 2

6 factors, in arriving at its recommended discipline of disbarment. Mr. Garcia does take issue with certain factual matters set forth in the Bar s Answer Brief because they are inaccurate and, in many instances, attempt to paint Mr. Garcia in a false light in an effort to justify the Bar s recommended discipline of disbarment forwarded to the Referee. The Bar mistakenly asserts that Mr. Garcia was involved in three (3) separate transactions in which he received a total of $45, (See, p.3, Answer Brief). This assertion is incorrect. The transcript of the plea hearing and specifically, the testimony of Mr. Carlton, makes it clear that Mr. Garcia was involved in a single transaction in which he received $28, from Mr. McDermott. Mr. Garcia then made three (3) deposits into his trust account from which he made three (3) payments for the purchase of Mr. McDermott s house. 1 (See, BEX-3 Plea Agreement, p.26, l.21 to p.27, l.3). Mr. Garcia was involved in no other criminal transaction with Mr. McDermott. Mr. Garcia further takes issue with the Bar s attempt to paint Mr. Garcia as conspiring with a known drug dealer to engage in money laundering. (See, Answer Brief, p.5). There was no direct evidence that Mr. Garcia knew that the monies he 3

7 received from Mr. McDermott were drug related monies. In fact, on p.41 of the transcript of Mr. Garcia s plea hearing, Mr. Garcia s counsel states that Mr. Garcia did not admit that he knew the monies he received were from drugs. (BEX-3, pp.40-41) Mr. Garcia, at the disciplinary hearing, denied that he knew that the monies he received were from drug proceeds (TR-90) and, in fact, he was not charged with money laundering. (TR-94) The Bar s attempt to paint Mr. Garcia as an individual involved in drugs and money laundering with Mr. McDermott is simply not supported by the evidence. Finally, Mr. Garcia takes issue with the Bar s reference to Mr. Garcia s admonishment received in 1977 in its Answer Brief. As the Bar correctly points out, the admonishment was not considered by the Referee in this cause because it took place more than seven (7) years ago and, thus, we can only assume that the Bar recites this matter in its Answer Brief because it lacks other evidence of aggravation on the part of Mr. Garcia to support the recommended discipline of disbarment. Mr. Garcia is confident that this Court will recognize that Mr. Garcia s conduct, while serious, is, indeed, isolated and antithetical with the exemplary personal and professional life he led prior 1 Mr. Garcia acknowledges that he advanced his own monies towards the purchase of the house and supports Mr. Garcia s belief that he was helping Mr. McDermott to purchase a house and not for some illegal purpose. 4

8 to the isolated incident which brings this matter before the Court. SUMMARY OF ARGUMENT 2 I. THE REFEREE IMPROPERLY FOUND THAT MR. GARCIA HAD A DISHONEST MOTIVE AND THAT PETITIONER WAS ENGAGED IN A PATTERN OF MISCONDUCT. II. THE REPORT OF REFEREE FAILED TO CONSIDER AND WEIGH THE SUBSTANTIAL AND UNCONTROVERTED MITIGATION PRESENTED IN THIS CASE. ARGUMENT I. THE REFEREE IMPROPERLY FOUND THAT MR. GARCIA HAD A DISHONEST MOTIVE AND THAT PETITIONER WAS ENGAGED IN A PATTERN OF MISCONDUCT. This Court has repeatedly held that its scope of review is broader in reviewing a Referee s recommendation of discipline than it is in reviewing a Referee s finding of fact because it is the Court s responsibility to order the appropriate discipline. A Referee s finding of aggravation or mitigation will be reversed when they are clearly erroneous or without support in the record. The Florida Bar v. Del Pino, 955 So.2d 556 (Fla. 2007). In the case under review, the Referee s 2 Based upon the Court s holding in The Florida Bar v. Greene, 926 So.2d 1195 (Fla.2006), Mr. Garcia withdraws his objection to being charged with violation of the Rules Regulating The Florida Bar without a Grievance Committee first finding probable cause. 5

9 finding of dishonest motive and a pattern of misconduct as aggravating factors is not supported by the record. The hallmark characteristic of a person acting with dishonest and selfish motives is that his conduct is undertaken to achieve some financial benefit The Florida Bar v. Smith, 866 So.2d 41, 47 (Fla. 2004); The Florida Bar v. Pettie, 424 So.2d 734 (Fla. 1983). In the instant case, the record in this matter is void of any evidence that Mr. Garcia s conduct was taken for his own benefit or to achieve some improper or financial gain. Mr. Garcia s uncontroverted testimony is that for years he had acted as a friend and counselor to Mr. McDermott, his mother and sister and many a time had taken the place of Mr. McDermott s father by giving him advice. (TR-74) Mr. Garcia s intent or motive was to assist Mr. McDermott in purchasing a home with the expectation that if the home was sold, he would be repaid the monies he advanced Mr. McDermott. There is simply no evidence in the record that Mr. Garcia intended to or, in fact, profited from his dealings with Mr. McDermott. In fact, the uncontroverted evidence is to the contrary. Mr. Garcia lost over $75, The Bar and the Report of Referee fails to 3 The Bar makes much of Mr. Garcia s pleading guilty to making false statements to a federal officer in which he denied that he had an interest in the home purchased by Mr. McDermott. However, in the strictest sense, Mr. Garcia s assertion is accurate. While he had an expectation that he would be repaid monies that he advanced to Mr. McDermott for the purchase price of the 6

10 point to any evidence that Mr. Garcia intended to profit or, in fact, profited in any way from his transaction with Mr. McDermott. 4 As a result, the evidence does not support the Referee s finding of selfish and dishonest motive. The Report of Referee s finding that Mr. Garcia was engaged in a pattern of misconduct also is not supported by the record. The evidence is uncontroverted that save for the one incident with Mr. McDermott, and the restructuring of a single payment of $28,000.00, Mr. Garcia had never been involved in any other criminal misconduct. While Mr. Garcia did plead guilty to multiple offenses, these offenses did arise from a single transaction with Mr. McDermott concerning the purchase of a home. As such, it is not entitled to the substantial weight it might command under other circumstances where an attorney had been engaged in multiple offenses over an extended period of time. Mr. Garcia brings these matters to the Court s attention because the record in this case demonstrates that while Mr. Garcia did make a serious mistake for which he has accepted responsibility, it does not support the conclusion that disbarment is the appropriate discipline. home, he was not an owner of the property nor was he a mortgagee or lienor of the property. 4 Mr. Garcia lost in excess of $200, in the McDermott transaction and paid $75, to the government. 7

11 II. THE REPORT OF REFEREE FAILED TO CONSIDER AND WEIGH THE SUBSTANTIAL AND UNCONTROVERTED MITIGATION PRESENTED IN THIS CASE. Standard 3.0(d) of the Standards for Imposing Lawyer Sanctions requires that mitigation be considered in determining an appropriate sanction. A Referee s recommended discipline that fails to consider mitigation, which, in this case, is controverted and substantial, does not have a reasonable basis in existing case law. The Florida Bar v. Smith, supra, and it is the obligation of this Court to consider, evaluate and weigh the uncontroverted mitigation evidence ignored by the Referee in determining discipline. The Florida Bar v. Del Pino, supra. The Report of Referee found two (2) mitigating factors: character or reputation which was stipulation to by the Bar, and imposition of other sanctions. 5 However, the Report of Referee does not set forth how the Referee evaluated these factors or the weight the Referee gave the factors in arriving at his proposed discipline of disbarment. This failure is, indeed, significant and renders the Report fatally defective because the uncontroverted evidence in this case establishes that, except 5 Mr. Garcia is unsure how the Referee could consider this mitigating factor since Mr. Garcia had not been sentenced at the time of the hearing. Although Mr. Garcia was later sentenced to serve eighteen (18) months, the inclusion of this factor in the Report of Referee supports Mr. Garcia s argument that the Referee failed to undertake any meaningful consideration of Mr. Garcia s substantial mitigation put forth in his case. 8

12 for the incident in this matter, Mr. Garcia was a person of impeccable integrity, truthfulness and honesty in both his personal and professional life. The uncontroverted evidence establishes that he was a devoted father and husband and a credit to his community and the legal profession. The uncontroverted evidence establishes that Mr. Garcia dedicated his life to helping secure legal services for the poor and less fortunate in our community. (See, Mr. Garcia s Initial Brief, pp.5-7). These factors should not have only been considered by the Referee but given great weight and consideration in determining the sanction to be imposed in this case. The Referee s Report contains no discussion as to the weight given these factors. The Referee s Report is also fatally flawed because it fails to find, discuss or weigh the existence of nine (9) other mitigating factors that were presented and largely uncontroverted at the final hearing: A. absence of prior disciplinary record; B. absence of dishonest or selfish motive; C. timely good faith effort made of restitution; D. full and free disclosure to the disciplinary board and cooperative attitude towards proceedings; 9

13 E. absence of any evidence that any client of Mr. Garcia was harmed; F. interim rehabilitation; G. restitution; H. remorse; and I. absence of any prior offenses. This mitigation, discussed at length in Mr. Garcia s Initial Brief was largely uncontroverted by the Bar at the disciplinary hearing in this cause. While the Bar in its Answer Brief takes issue with, and often times surmises what the Referee might have thought about Mr. Garcia s substantial mitigation, it must admit that the Referee s Report fails to make any finding as to the existence of the substantial mitigation or to discuss the weight it gave the mitigating factors in arriving at the recommended discipline in this action. Again, the Referee s failure in this regard is significant because it is the existence of these mitigating factors which has caused this Court to order suspensions despite receiving recommendations of disbarment from a Referee. In The Florida Bar v. Del Pino, supra, this Court, despite receiving a recommendation of disbarment, ordered a three (3) year suspension for an attorney convicted of mail fraud and filing a false application to file and pay income taxes. In suspending 10

14 the attorney convicted of a felony in Del Pino, this Court concluded that a three (3) year suspension instead of disbarment was the appropriate discipline based upon the consideration of mitigating factors which are present in this case absence of prior disciplinary records, full and free disclosure to disciplinary board and cooperative attitude towards proceedings, good character and reputation, interim rehabilitation and remorse. Similarly, in The Florida Bar v. Fertig, 551 So.2d 1213 (Fla. 1989), this Court suspended an attorney for ninety (90) days after he entered a plea of no contest to RICO violations arising from his assisting his partner and client in laundering money as part of a drug smuggling scheme. In support of its decision, the Court noted the substantial mitigation offered by Mr. Fertig, including the fact that it was possible that Mr. Fertig, as well as Mr. Garcia in this case, initially did not know that he was involved in criminal activity. In Fertig, the Court further considered the fact that Mr. Fertig was under the domination of his employer who was a knowing participant. In the instant case, Mr. Garcia was attempting to legitimately help Mr. McDermott who was a knowing participant in the crime. In Fertig, the Court noted that Mr. Fertig, just as Mr. Garcia in this case, cooperated with investigators and demonstrated 11

15 interim rehabilitation. Mr. Fertig, as Mr. Garcia here, had a spotless record prior to and since the incident for which he pleaded guilty. Further, Mr. Fertig, like Mr. Garcia, presented character witnesses who testified to Mr. Fertig s honesty, his abilities as a lawyer and his remorse. Based upon the consideration of this substantial mitigation, the Court recommended a ninety (90) day suspension. In the instant case, Mr. Garcia seeks a three (3) year suspension instead of disbarment. The Report of Referee is also fatally flawed because it fails to take into consideration as a mitigating factor the substantial work Mr. Garcia performed in assisting the poor and less privileged in the community in which he served as an attorney. This mitigating factor has been given great weight by the Court in imposing as discipline suspension as opposed to disbarment. See, The Florida Bar v. Smith, supra, 866 So.2d at 48; The Florida Bar v. Tauler, 775 So.2d 944 (Fla. 2000)(discipline for unethical conduct must be fair to society, which includes not depriving the public of the services of a qualified attorney as a result of an unduly, harsh sanction). The uncontroverted testimony of Mitchell Beers, a well respected and seasoned criminal defense attorney, and Lanna Belohlavek, a career State s Attorney, as well as the character letters 12

16 received in evidence, leads to the inescapable conclusion that society would suffer if Mr. Garcia were, in fact, disbarred, as opposed to suspended. A review of the Report of Referee reveals that the Referee failed to consider or weigh this substantial or uncontroverted mitigation presented by Mr. Garcia. 6 A review of the substantial and, in large part, uncontroverted mitigation in this case, when applied against this Court s prior decisions involving similar mitigation, leads to the conclusion that a three (3) year suspension is appropriate. 6 Again, Petitioner attributes this deficiency to the wholesale adoption of the Report of Referee prepared by the Bar prior to the disciplinary hearing and adopted by the Referee without change. 13

17 CONCLUSION The issue in this case is not whether Mr. Garcia should be punished for his transgression for it is clear that he should. The issue is whether this Court should exercise its discretion to fashion discipline which both recognizes the seriousness of Mr. Garcia s conduct and takes into consideration the totality of Mr. Garcia s character, his past works, service and representation on behalf of the poor and less fortunate and his benefit to society, the legal profession and his family. It is respectfully submitted that a three (3) year suspension is the appropriate discipline to be imposed in this case to accomplish this end. Respectfully submitted, G. Michael Keenan 14

18 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by Federal Express to Michael David Soifer, Esquire, The Florida Bar, 5900 North Andrews Avenue, Suite 900, Ft. Lauderdale, Florida 33309; and Kenneth Lawrence Marvin, Esquire, The Florida Bar 651 East Jefferson Street, Tallahassee, Florida this day of September, CERTIFICATE OF COMPLIANCE WE HEREBY CERTIFY that this Brief is in compliance with the font requirements of Rule 9.210(a), Florida Rules of Appellate Procedure. G. MICHAEL KEENAN, P.A. Attorneys for Petitioner, JOHN ANTHONY GARCIA Suite Old Okeechobee Road West Palm Beach, FL (561) Telephone (561) Telefax By: G. Michael Keenan Florida Bar No