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, INITIAL BRIEF G. Michael Keenan, Esquire G. MICHAEL KEENAN, P.A. Attorneys for Petitioner, JOHN ANTHONY GARCIA Suite Old Okeechobee Road West Palm Beach, Florida (561) Telephone (561) Telefax

2 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITATIONS ii iii PRELIMINARY STATEMENT 1 STATEMENT OF CASE AND FACTS 2 SUMMARY OF ARGUMENT 12 ARGUMENT: I. 13 THE REPORT OF REFEREE, ON ITS FACE, FAILS TO CONSIDER THE MITIGATING EVIDENCE PRESENTED IN THIS CAUSE. II. 18 BASED UPON THE UNCONTROVERTED EVIDENCE OF MITIGATION IN THE RECORD, WHEN APPLIED AGAINST EXISTING CASE LAW, A THREE (3) YEAR SUSPENSION IS THE APPROPRIATE DISCIPLINE IN THIS CASE. III. 25 THE REFEREE ERRED IN FINDING MR. GARCIA GUILTY OF VIOLATIONS OF RULES REGULATING THE FLORIDA BAR WITH WHICH HE WAS NOT CHARGED. CONCLUSION 26 CERTIFICATE OF SERVICE 28 CERTIFICATE OF COMPLIANCE 28 ii

3 TABLE OF CITATIONS United States Supreme Court Cases Cited In Re: Ruffalo 390 U.S. 544 (1968) 25 Florida Supreme Court Cases Cited Perlow v. Berg-Perlow 875 so.2d 383, 389 (Fla. 2004) 17 The Florida Bar v. Arnold 767 So.2d 438 (Fla. 2000) 16,20 The Florida Bar v. Bustante 662 so.2d 687 (Fla. 1995) 21,22 The Florida Bar v. Cohen 908 so.2d 405 (Fla. 2005) 23 the Florida Bar v. Dougherty 769 So.2d 1027 (Fla. 2000) 23 The Florida Bar v. Grief 701 So.2d 555 ( Fla. 1997) 21 The Florida Bar v. Hirsch 342 So.2d 970 (Fla. 1977) 18,19 The Florida Bar v. Horne 527 So.2d 816 (Fla. 1988) 22 The Florida Bar v. Hosner 536 So.2d 188 (Fla. 1988) 23,24 The Florida Bar v. Jahn 509 So.2d 285 (Fla. 1987) 14,19 The Florida Bar v. Lechtner 666 So.2d 892 (Fla. 1996) 23 The Florida Bar v. Lecznar 690 So.2d 1283 (Fla. 1997) 13 iii

4 TABLE OF CITATIONS (contd.) The Florida Bar v. Nedick 603 So.2d 502 (Fla. 1992) 24 The Florida Bar v. Pahules 233 So.2d 130 (Fla. 1930) 13 The Florida Bar v. Pettie 424 So.2d 734 (Fla. 1983) The Florida Bar v. Rue 643 So.2d 1080 (Fla. 1994) 13 The Florida Bar v. Smith 650 So.2d 980 (Fla. 1995) 20 The Florida Bar v. Sweeney 730 So.2d 1269 (Fla. 1998) 13 The Florida Bar v. Tauler 772 So.2d 944 (Fla. 2000) 19 The Florida Bar v. Vernell 721 So.2d 705 (Fla. 1998) 25 The Florida Bar v. Weinsoff 498 So.2d 942 (Fla. 1986) 24 The Florida Bar v. Wilson 643 So.2d 1063 (Fla. 1994) 13 The Florida Bar v. Wolis 753 So.2d 1057 (Fla. 2001) 22 District Court of Appeal Cases Cited Rykiel v. Rykiel 795 So.2d 90 (Fla. 5 th DCA 2000) 17 iv

5 TABLE OF CITATIONS (contd.) Rules Regulating The Florida Bar Rule Rule ,25 Rule Rule 3-7.2(h) 3,26 Rule 4-8.4(a), (b), (c), (d) 2,3,25 Florida Standards for Imposing Lawyer Sanctions Standard Standard v

6 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

7 STATEMENT OF CASE AND FACTS. This case is a matter of original jurisdiction before this Court pursuant to Art.IV, 15 of the Florida Constitution. On February 27, 2007, the Honorable Michael L. Gates, this Court s Referee in these proceedings, rendered his Report in which he found Petitioner guilty of violating Rules 3-4.2, and 4-8.4(a), (b), (c) and (d), of the Rules Regulating The Florida Bar. (RR-5-6). As the appropriate discipline for Petitioner s misconduct, Judge Gates recommended that Petitioner be disbarred without setting forth the date Petitioner s disbarment was to commence. (RR-6). Significantly in his Report, Judge Gates did not consider the substantial mitigation placed in the record at the hearing before Judge Gates on the issue of discipline on February 14, On April 25, 2007, Petitioner filed his Petition for Review of the Report of the Referee challenging the Report and the recommendation of disbarment based upon the failure of the Referee to consider the substantial and uncontroverted mitigation presented by Mr. Garcia. In fact, the Report of Referee signed in this case was submitted to the Referee by the Bar at the hearing on discipline and was executed without a single change to the 1 In his Report, the Referee considered only two (2) of the many substantial mitigating factors presented in this case. The two (2) mitigating factors mentioned in the Report, character and reputation and imposition of other penalties or sanctions were stipulated to by the Bar. (RR-7). Consideration of the other mitigation identified herein is absent from the Referee s Report. 2

8 Report, notwithstanding the substantial evidence introduced by Mr. Garcia in mitigation of the discipline sought by the Bar. 2 In his Petition for Review, Mr. Garcia also challenged the Referee s recommendation of disbarment as not being in accordance with the evidence adduced at the disciplinary hearing and this Court s established case law. At the disciplinary hearing, the Bar did not call a single witness and introduced and mischaracterized documentary evidence to support its recommended discipline of disbarment. As will be set forth herein, the facts surrounding Mr. Garcia s conduct when viewed against this Court s prior decisions leads to the conclusion that a three (3) year suspension is the appropriate discipline in this case. Finally, Mr. Garcia challenges the finding of the Report of Referee that Mr. Garcia violated Rule and Rule 4-8.4(a), (b), (c) and (d) of the Rules Regulating The Florida Bar because no Complaint had been filed against Mr. Garcia charging him with a violation of these Rules. Instead of filing a separate Complaint against Mr. Garcia, the Bar sought to discipline Mr. Garcia under Rule 3-7.2(h), of the Rules Regulating The Florida Bar because of his pleading guilty to a felony. The finding of additional Rule violations for which he was not charged denied Mr. Garcia his due process right to be placed on notice of the additional charges 2 Petitioner assumes that the Referee has forwarded to the Court with his report, the Bar s disk containing the Report he signed along with a copy of the proposed Report of Referee given to the Referee at the conclusion of the hearing. (TR-112). 3

9 being brought against him and is prejudicial because he was not afforded an opportunity to respond to them. Moreover, the Referee s finding of these Rule violations is prejudicial because they were improperly considered by the Referee in recommending disbarment. As set forth above, the Bar did not call a single witness in the case against Mr. Garcia. Thus, many of the facts set forth herein are largely uncontested. Mr. Garcia was admitted to The Florida Bar in April of 1988 (TR-67; BEX-5). Mr. Garcia graduated from law school from the University of Buffalo in (TR-69). Mr. Garcia has been married to his wife, Karen, for twenty-two (22) years, has two (2) children, Elizabeth, age 14 years, and Alexandria, age 11 years, and has resided in Palm Beach County since moving there after graduation from law school. (TR-67). Upon moving to Florida, Mr. Garcia commenced working in the Public Defender s office and remained there through 1999 (TR-67) working in every part of the criminal justice system(tr-67), including the felony and appellate division. (TR-68). In 1991, Mr. Garcia entered private practice with an attorney, Joseph Fasolo, who specialized in workers compensation law. (TR-68). During his time practicing in the area of workers compensation law, Mr. Garcia expanded his criminal defense practice and in 1993 or 1994, Mr. Garcia opened his own practice where he shared office space with two (2) other 4

10 attorneys. (TR-68-69). Mr. Garcia continued in private practice until December of 2006 when he was notified of his suspension by the Bar. During the course of his legal career, Mr. Garcia dedicated himself to representing the poor and less fortunate criminal defendants, often to the chagrin of his wife. (TR-70-71). As Mr. Garcia testified: (TR-70-71). Over the course of my lifetime, I have developed a knack of representing indigent people. If you come into my door and you complain to me enough, I ll take care of your case. It does not matter how much money you have, I ll do it. I have many, many a time not taken money from a client because they really don t have it. I would just take the cases for free. I have done that over the course of my life That s who I am. That s how I am. During the course of his professional life, Mr. Garcia also assisted indigent clients, especially in the Hispanic community, in obtaining jobs and driver s licenses. (TR-71-72). Consistent with his efforts to help the poor and less fortunate, Mr. Garcia was a founding member of the Hispanic Bar Association. (TR-73). Mr. Garcia s dedication to helping the poor was not questioned by the Bar in these proceedings. The Bar also did not question Mr. Garcia s love and devotion to his family. Mr. Garcia, married for twenty-two (22) years to 5

11 his wife, Karen, (TR-67) who supported him at the disciplinary hearing, is a devoted father supporting his daughters in school, in gymnastics, and in extra-curricular and community activities. (TR-74). It was evident to Mr. Garcia s peers that he expressed a great deal of love and affection for his family. (TR-38; 58). It is also undisputed that in his professional life, Mr. Garcia exhibited the highest degree of ethics, truthfulness and honesty. Mr. Mitchell Beers, a well respected, criminal defense attorney, who associated both professionally and socially with Mr. Garcia for fifteen (15) to sixteen (16) years (TR-35), described Mr. Garcia as honest and ethical in his professional and personal life. (TR-42-43). Mr. Beers served on the Grievance Committee A for The Florida Bar in Palm Beach County, was President of the North County Section of the Palm Beach County Bar Association and is the President of the Palm Beach County Association for Criminal Defense Attorneys. (TR-34). So too, Ms. Lanna Belohlavek, a career prosecutor in the State Attorney s Office, in charge of the Capital Sexual Battery Unit which handles crimes against children, sexual abuse and cases involving the murder of children, (TR-53) described Mr. Garcia, with whom she had worked against for fifteen (15) years (TR-54) as a worthy advocate and professional. (TR-57). Ms. Belohlavek stated: 6

12 He dealt honestly with me and represented his clients well and he s been an advocate in every sense of the word. (TR-57). Ms. Belohlavek continued: (TR-58). My conclusion is: Based upon my contacts with Mr. Garcia. He is a man of integrity. He always dealt fairly with me. He disclosed things he did not have to, just in conversation about cases we tried. He is a man that loves his family In addition to Mr. Beers and Ms. Belohlavek, an additional thirty-three (33) letters from attorneys, clients and friends were submitted into evidence attesting to Mr. Garcia s character and reputation for honesty, integrity and truthfulness in his professional, family and community life. (TR-65; 102) (PEX-3). This evidence concerning Mr. Garcia s character and reputation was neither disputed nor controverted. On or about December 4, 2006, in the case of United States of America v. John Garcia, in the United States District Court for the Southern District of Florida, Case No CR-Hurley, Mr. Garcia entered a plea of guilty to three (3) counts of illegal structuring of cash deposits to avoid filing a currency transaction report in violation of Title 31, U.S.C. 5324(a)(3) and one (1) count of making a false statement to agents of Drug Enforcement Administration in violation of Title 18 U.S.C (BEX-1). Mr. Garcia s conviction emanated from his desire to help 7

13 a client, Joel McDermott, lead what he thought would be a life free from crime. Mr. Garcia first met Mr. McDermott when he was seventeen (17) years old, some thirteen (13) years ago, (TR-76-77), when Mr. Garcia was in the Public Defender s Office. After initially representing Mr. McDermott, Mr. Garcia had no contact with him until seven (7) or eight (8) years prior to 2003 when Mr. McDermott approached Mr. Garcia to represent him in another charge. (TR-77). At this time, Mr. McDermott expressed a desire to change his life. Mr. Garcia, along with Mr. McDermott s mother and sister, took the place of Mr. McDermott s father giving him advice (TR-77) in attempting to get him on a straight and narrow course. (TR-78). Mr. Garcia incorporated a business for Mr. McDermott and reviewed contracts for him to help him make money lawfully. (TR-78). Mr. Garcia helped Mr. McDermott s mother, who worked in the Department of Corrections and his sister, whom he got into treatment for drug addiction. (TR-78). In or about 2003, Mr. McDermott approached Mr. Garcia and asked him to help him purchase a home in Palm Beach County. (TR- 78) Mr. McDermott gave Mr. Garcia $22, which Mr. Garcia deposited into his trust account in three (3) separate transactions of less than $10, to avoid bank reporting requirements. Mr. Garcia then purchased Cashier s Checks with the funds which were paid towards the purchase price of the home. When Mr. McDermott did not provide sufficient monies to make the 8

14 payments on the house, Mr. Garcia advanced money with the hope that he would be repaid when the property sold. (BEX-3, p.27)(tr- 80). When questioned by the government as to whether he had an equitable interest in the home Mr. McDermott was purchasing, Mr. Garcia stated no but later did confirm that it was his hope to recover the monies he advanced for the purchase of the home upon its sale. (TR-90). In connection with the McDermott transaction and Mr. Garcia s subsequent plea of guilty, there are sufficient factors which were, again, not disputed by the Bar. First, Mr. Garcia did not profit from this transaction. (TR-80). In addition to losing the money he paid towards the purchase of the home, he also forfeited $75, to the government as part of his Plea Agreement which he paid, in part, by obtaining a second mortgage on his home. (PEX1 and 2; TR-81-82). By contrast, Mr. McDermott kept his profits from the sale of the home. (TR-81). Second, Mr. Garcia expressed sincere and heartfelt remorse for his conduct recognizing the effect on his family and his profession. (TR-76). Third, 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 an information against him. (TR-84). 9

15 Fourth, Mr. Garcia cooperated with the Bar in its investigation of this matter. (TR-85). Fifth, no client of Mr. Garcia, even Mr. McDermott, suffered injury as a result of his conduct. (TR-85). Sixth, at the time of the disciplinary hearing, Mr. Garcia faced incarceration for a period of eighteen (18) to thirty-six (36) months (Mr. Garcia was eventually sentenced to eighteen (18) months). (TR-85-86). Seventh, Mr. Garcia demonstrated interim rehabilitation. After being charged by the government, Mr. Garcia continued to practice law and truthfully advised his clients of his arrest and the charges which he faced. All of his clients chose to continue to have him represent them. (TR-86-87). At the hearing before Judge Gates, the parties entered into two (2) stipulations in mitigation of the discipline to be imposed against Mr. Garcia. The first stipulation was that Mr. Garcia s character and reputation were mitigating factors to be applied when determining discipline. (TR-12-13, 102) Second, the fact that Mr. Garcia would be subject to incarceration was, again, agreed to be a mitigating factor to be considered in determining the appropriate discipline to be imposed in this case. (TR-14-15, 19, 102). For the reasons set forth below, Mr. Garcia respectfully submits that the recommended discipline of disbarment is 10

16 inappropriate, and that a three (3) year suspension is the appropriate remedy to be imposed in this case. 11

17 SUMMARY OF ARGUMENT I. THE REPORT OF THE REFEREE SHOULD NOT BE ACCEPTED BECAUSE OF ITS FAILURE TO CONSIDER SUBSTANTIAL AND UNCONTESTED MITIGATION IN ARRIVING AT THE RECOMMENDED DISCIPLINE OF DISBARMENT. II. SIGNIFICANT AND UNCONTROVERTED MITIGATION OF THIS CASE MERITS THE IMPOSITION OF A THREE (3) YEAR SUSPENSION. III. THE REFEREE ERRED IN FINDING MR. GARCIA GUILTY OF VIOLATIONS OF RULES REGULATING THE FLORIDA BAR WITH WHICH HE WAS NOT CHARGED. 12

18 ARGUMENT I. THE REPORT OF REFEREE, ON ITS FACE, FAILS TO CONSIDER THE MITIGATING EVIDENCE PRESENTED IN THIS CAUSE. While the Referee s Findings of Fact should be upheld unless clearly erroneous, the Court has complete discretion on the subject of sanctions. The Florida Bar v. Rue, 643 So.2d 1080 (Fla. 1994). This is because this Court has the ultimate authority to determine an appropriate sanction in an attorney discipline case. The Florida Bar v. Wilson, 643 So.2d 1063 (Fla. 1994). There are three (3) purposes to be served in determining the appropriate discipline to be imposed in any particular instance. The discipline imposed must be fair to society. The discipline imposed must be fair to the attorney. The discipline must be severe enough to deter other attorneys from similar misconduct. The Florida Bar v. Pahules, 233 So.2d 130 (Fla. 1930). When discipline is recommended by a Referee, it must have a reasonable basis in existing law or the Florida standards for imposing lawyer sanctions. The Florida Bar v. Sweeney, 730 So.2d 1269 (Fla. 1998); The Florida Bar v. Lecznar, 690 So.2d 1284 (Fla. 1997). It is fundamental that in considering appropriate discipline to impose against an attorney, the Referee must consider conduct in both mitigation and aggravation of 13

19 proposed discipline. See, Florida Standards for Imposing Lawyer Sanctions, Standard 9.0. While disbarment is the appropriate discipline when an attorney is convicted of a felony, such disbarment is not automatic. The Florida Bar v. Jahn, 509 So.2d 285 (Fla. 1987). To hold otherwise, would render the disciplinary hearing provided for under Rule of the Rules Regulating The Florida Bar meaningless. In the instant case, the Report of the Referee reveals that the Referee failed to consider the uncontroverted mitigation offered by Mr. Garcia in this matter. In point of fact, the sole reference in the Report of Referee to mitigation occurs at p.7,sec.b and sec.d., where the Referee in the Report authored by the Bar acknowledges the parties stipulation as to character and reputation and the imposition of other penalties and states, Respondent can overcome the presumption of disbarment by presenting extenuating mitigating circumstances, but this Respondent did not present the requisite mitigation needed to overcome the presumption of disbarment. No further mention or discussion of the substantial and uncontroverted mitigation evidence presented by Mr. Garcia is mentioned in the Report of Referee which was prepared by the Bar before the disciplinary hearing, submitted to the Referee, and signed without modification or alteration. 14

20 As set forth previously, Mr. Garcia placed into evidence substantial mitigation, none of which was set forth or evaluated by the Referee in his Report in arriving at his recommended discipline of disbarment. The uncontroverted evidence introduced by Mr. Garcia established nine (9) mitigating factors, which under applicable case law, are sufficient to overcome the presumption of disbarment: A. Absence of prior disciplinary record. B. Absence of dishonest or selfish motive 3. C. Timely good faith effort to make restitution or to rectify consequences of misconduct. Mr. Garcia timely forfeited $75, to the government pursuant to its request. D. Full and free disclosure to the disciplinary board or cooperative attitude towards proceedings. Mr. Garcia completely cooperated with the Bar in this matter and there was no evidence to the contrary. E. Evidence of good character and reputation. The uncontroverted evidence in this case is that Mr. Garcia possessed the highest degree of honesty, truthfulness and integrity in his professional and personal life. 3 While the Bar argued that Mr. Garcia had a selfish and dishonest motive, Mr. Garcia s uncontroverted testimony is that he was attempting to assist Mr. McDermott in leading a life without crime. Additionally, it is well settled that engaging in illegal conduct is not the same as engaging in dishonest conduct. The Florida Bar v. Pettie, 424 So.2d 734 (Fla. 1983). 15

21 F. Interim rehabilitation. Subsequent to being advised of the charges against him, Mr. Garcia continued to practice law and truthfully advised his clients of the charges. Not a single client discharged him as their counsel. G. Imposition of penalties and sanctions. At the time of the hearing, Mr. Garcia was subject to eighteen (18) to thirty-six (36) months of incarceration. H. Remorse. Mr. Garcia expressed sincere and heartfelt remorse for his conduct. I. Remoteness of prior offenses. There were no prior offenses involving Mr. Garcia. Standard 9.32 of Standards for Imposing Attorney Sanctions, The Florida Bar v. Arnold, 767 So.2d 438 (Fla. 2000). The existence of overwhelming and uncontroverted evidence regarding mitigation requires that the recommended discipline of disbarment be rejected by this Court. The reason why the Referee failed to consider uncontroverted evidence of mitigation in arriving at his recommended discipline maybe found in the Referee s lack of experience in handling attorney disciplinary cases. (TR-16). However, the lack of experience does not excuse the failure of the Referee to consider the undisputed and uncontroverted evidence of mitigation offered 16

22 by Mr. Garcia. On this basis alone, the Referee s recommended discipline should be rejected by the Court. The Referee s Report is further objectionable because it was adopted verbatim from a proposed Report prepared by the Bar prior to Mr. Garcia s hearing without modifications or deletions, and without the Referee making any comment as to his ruling on the record prior to the entry of the Report. Perlow v. Berg-Perlow, 875 So.2d 383, 389 (Fla. 2004); Rykiel v. Rykiel, 795 So.2d 90 (Fla. 5 th DCA 2000)(to the extent not overruled or inconsistent with the Perlow decision, the decision in Rykiel is affirmed). As the Court stated in Perlow: We understand and appreciate the fact that a trial judge in these often complex and multiissue dissolution cases can benefit from proposed findings and conclusions prepared by the parties. Such proposals can serve as a starting point and remainder of the facts and issues that should be considered and weighed by the judge in his or her own evaluation. However, such submissions cannot substitute for a thoughtful and independent analysis of the facts, issues and law by the judge. Perlow, supra, 475 So.2d at Although in this case, Petitioner was afforded the opportunity to submit his proposed Report of Referee, the wholesale, verbatim adoption of the Bar s Report of Referee which was prepared prior to the hearing, which was submitted to the Referee at the conclusion of the hearing, and which contains no discussion of the uncontroverted mitigation 17

23 offered into evidence in this cause, is no less objectionable and makes a review of the Referee s findings and conclusion no less problematic for this Court. Resultingly, the Report of Referee and its recommended discipline must be rejected. II. BASED UPON THE UNCONTROVERTED EVIDENCE OF MITIGATION IN THE RECORD, WHEN APPLIED AGAINST EXISTING CASE LAW, A THREE (3) YEAR SUSPENSION IS THE APPROPRIATE DISCIPLINE IN THIS CASE. Application of this Court s pronouncements in prior cases involving disbarment for felony convictions, demonstrates that a three (3) year suspension is appropriate in this case. This Court has long recognized that disbarment is the most extreme and ultimate form of discipline occupying the same rung of the ladder in these proceedings as the death penalty in criminal proceedings. The Florida Bar v. Hirsch, 342 So.2d 970 (Fla. 1977). As the court held in Hirsch: Ordinarily, the occasion for disbarment should be the demonstration by a continued course of conduct or an attitude wholly and consistent with the recognition of proper professional standards. Unless it is clear that the lawyer will never be one who should be at the bar, suspension is preferable. Just as a lawyer who has been habitually dishonest will almost certainly revert to his low professional standards when necessity, temptation and occasioned reoccur, so one who has been consistent straight and upright can properly be trusted not to repeat an isolated offense unless of such a nature of itself to demonstrate a basically depraved character. 18

24 The Florida Bar v. Hirsch, supra, 342 So.2d at 978. Applying this rule, the Supreme Court in Hirsch held that suspension was the appropriate sanction for an attorney who misappropriated clients monies from his trust account. As significantly, this Court has recognized that disbarment is an extreme sanction to be imposed only in those rare cases where rehabilitation of an attorney is highly improbable. The Florida Bar v. Tauler, 775 So.2d 944 (Fla. 2000)(three year suspension and not disbarment appropriate for an attorney who misappropriated $56, from a trust account. This principle is consistent with this Court s recognition that a felony conviction does not automatically result in disbarment. The Florida Bar v. Jahn, 509 So.2d 285 (Fla. 1987). In the case under review, the uncontroverted testimony leads to the conclusion that Mr. Garcia is not an attorney for whom disbarment is the appropriate remedy. The evidence in this case demonstrates that Mr. Garcia, save for an isolated transaction, had lived an exemplary professional and personal life. There is nothing contained in the record to suggest that Mr. Garcia was guilty of any dishonest or illegal conduct in the past or that he would be likely to engage in such conduct in the future. In fact, the record of Mr. Garcia s life leads to the inescapable conclusion that the transaction to which he pleaded guilty was an isolated instance which will not be repeated. 19

25 Lest there be any doubt that this Court has repeatedly suspended attorneys who have been convicted of felonies, we wish to bring to the Court s attention the holdings in The Florida Bar v. Smith, 650 So.2d 980 (Fla.1995)(attorney convicted of two felony charges of tax evasion and making false statement to federal electorate commission suspended for three years); and The Florida Bar v. Pettie, 424 So.2d 734 (Fla. 1982)(attorney who participated in criminal conspiracy to import 15,000 pounds of marijuana suspended for three years). In fact, the case before this Court is similar both factually and legally to The Florida Bar v. Arnold, 676 So.2d 438 (Fla. 2000). Thus, the Arnold decision is instructive as to the appropriate discipline to be imposed against Mr. Garcia. In Arnold, this Court, again, determined that the appropriate discipline to be imposed against an attorney convicted of a felony was a suspension. In Arnold, an attorney was convicted in federal court of various charges, including three (3) counts of violating 18 U.S.C. 1957(a)(1986), which involved knowingly engaging in a monetary transaction in criminally derived property that is of a value greater than $10, and derived from unlawful activity. In suspending Arnold for sixty (60) days, the Supreme Court recognized that although the attorney had been convicted of numerous felonies, mitigation, including (1) lack of prior discipline; (2) absence of dishonest or selfish motives; (3) lack 20

26 of injury to client; (4) cooperative attitude during the proceedings; (5) credible character witnesses testifying on the attorney s behalf; (6) interim rehabilitation; (7) imposition of other sanctions and penalties by way of incarceration and depletion of final resources; (8) the sentencing judge felt sympathetic towards the attorney; and (9) the attorney dedicated a large part of his life to public service. In the case, the exact mitigation exists in Mr. Garcia s case which is uncontroverted, including but not limited to the fact that the sentencing judge, Judge Hurley, felt sympathy towards Mr. Garcia. (BEX-3, p.2). Moreover, the cases in which the Court has disbarred attorneys convicted of felonies involve factual situations and aggravating factors which are not present in this case. In The Florida Bar v. Grief, 701 So.2d 555 (Fla. 1997), the disbarred attorney was involved in a pattern of illegal activity over a period of six (6) months of filing over four hundred (400) amnesty applications. In the case under review, Mr. Garcia s conduct involved a single transaction and not a pattern of illegal activity. In The Florida Bar v. Bustante, 662 So.2d 687 (Fla. 1995), the disbarred attorney was involved in illegal conduct over a period of five (5) years, and made several misrepresentations to obtain insurance proceeds, embezzle funds from a client to pay for interest on a personal loan and refused to acknowledge the legal 21

27 significance of his conduct. In the case under review, Mr. Garcia s conduct was isolated, he did not have a dishonest motive, did not profit from his conduct, did not embezzle clients funds and no clients were injured. Additionally, Mr. Garcia has acknowledged the wrongful nature of his conduct. Thus, Mr. Garcia s case is distinguishable from Bustante. In The Florida Bar v. Wolis, 753 So.2d 1057 (Fla. 2001), the disbarred attorney was involved in a pattern of filing false reports with the SEC overstating the profits of a company in which he was a shareholder. In Wolis, the attorney was also convicted of obstruction of justice and perjury. Again, in the case under review, Mr. Garcia s conduct is distinguishable in that his conduct was isolated, he did not profit from this transaction and he was not charged or convicted of obstructing justice or perjury. In The Florida Bar v. Horne, 527 So.2d 816 (Fla. 1988), the disbarred attorney conspired with a client over a period of time in laundering illegally gained assets from the importation and distribution of controlled substances and obstructed and impeded the collection of income taxes. In the case under review, Mr. Garcia s isolated conduct did not involve conspiracy and, specifically, did not involve charges or convictions for money laundering. Mr. Garcia was the victim of his desire to help his client in a transaction in which he should have known was illegal. Mr. Garcia s conduct, though serious, falls short of the conduct 22

28 of the attorneys in which this Court has decided that disbarment is the appropriate remedy. In The Florida Bar v. Cohen, 908 So.2d 405 (Fla. 2005), the disbarred attorney conspired with a major importer of marijuana and cocaine over a period of approximately eight (8) years and received approximately $640, in cash in $10, bundles which he kept in a bank located in the building where he practiced law. Again, in this case, Mr. Garcia was not charged with and he did not plead guilty to conspiracy with a known drug dealer over an extended period of time. Mr. Garcia s defalcation, though serious, involved a single transaction in which he admitted he should have exercised better judgment. In The Florida Bar v. Dougherty, 769 So.2d 1027 (Fla. 2000), the disbarred attorney, who did not contest the recommended discipline of disbarment, again was involved in a pattern of massive over-billing of his client, Lloyds of London, for which he was convicted of wire fraud. Since the attorney did not contest the recommended discipline of disbarment, the Dougherty case is of little instructive value. In The Florida Bar v. Lechtner, 666 So.2d 892 (Fla. 1996), the disbarred attorney was charged with bribing various judges in the Eleventh Judicial Circuit in exchange for court appointments. Again, the disbarred attorney, who contested the assessment of costs, did not contest the recommended discipline of disbarment. In The Florida Bar v. 23

29 Hosner, 536 So.2d 188 (Fla. 1988), the disbarred attorney was convicted of fourteen (14) felony charges of assisting in preparing false tax returns and one (1) count of mail fraud. Again, in Hosner, the attorney did not contest the Report of Referee. In The Florida Bar v. Weinsoff, 498 So.2d 942 (Fla. 1986), the disbarred attorney was convicted of conspiracy to commit mail fraud and nine (9) counts of mail fraud. Again, the Report of Referee was not contested. Finally, in The Florida Bar v. Nedick, 603 So.2d 502 (Fla. 1992), the disbarred attorney was convicted of conspiracy and filing false income tax returns on six (6) different occasions over a period of five (5) years. By comparison, Mr. Garcia was involved in an isolated transaction. From a review of those cases cited by the Referee in support of his recommendation for discipline and distinguished above, it becomes readily apparent that the facts in this case do not support disbarment. Unlike the disbarred attorneys in the cases cited above, Mr. Garcia was not involved in a pattern of illegal activity over an extended period of time. Mr. Garcia was not involved in or charged with conspiracy, money laundering or perjury. Mr. Garcia, though involved in an illegal, isolated transaction, obtained no assets and did not personally gain from the transaction. The distinctions between the cases in which this Court disbarred attorneys and Mr. Garcia s case is, indeed, bright 24

30 and well-defined. As a result, a three (3) year suspension and not disbarment is the appropriate remedy in this case. III. THE REFEREE ERRED IN FINDING MR. GARCIA GUILTY OF VIOLATIONS OF RULES REGULATING THE FLORIDA BAR WITH WHICH HE WAS NOT CHARGED. The Referee s recommended findings that Petitioner violated Rule and Rule 4-8.4(a), (b), (c) and (d) of the Rules Regulating The Florida Bar, violates Petitioner s due process rights. It is well settled that an attorney in a disciplinary proceeding is entitled to due process. The Florida Bar v. Vernell, 721 So.2d 705 (Fla. 1998). The United States Supreme Court has held that because Bar disciplinary proceedings are quasi criminal in nature, attorneys must know the charges against them before proceedings commence. In Re: Ruffalo, 390 U.S. 544 (1968), modified on other grounds 392 U.S. 919 (1968). An attorney may be prosecuted for violating a rule of professional conduct only after notice of the charge for which he is being prosecuted. The Florida Bar v. Vernell, supra. In the instant case, the Referee in his wholesale adoption of the Report of Referee submitted by the Bar prior to hearing any evidence, recommended that Petitioner be found guilty of violating Rule and 4-8.4(a)-(d), of the Rules Regulating The Florida Bar. However, no Complaint was filed against Petitioner advising him that he was being prosecuted for violation of these Rules. 25

31 The only document notifying Petitioner of the charges against him was the Notice of Determination of Guilt filed by the Bar and this Court s Amended Order seeking discipline under Rule 3-7.2(h) of the Rules Regulating The Florida Bar. The Referee s recommended finding that Petitioner violated Rules Regulating The Florida Bar for which he was not charged, denies Petitioner of his due process rights and is erroneous. The Referee s error is further compounded by the fact that he considered these multiple violations as an aggravating factor in justifying his recommended discipline of disbarment. CONCLUSION There is no doubt Mr. Garcia, because of his conduct, must be disciplined and that the discipline imposed must be severe to fulfill the purposes expressed in imposing discipline by this Court. However, the facts adduced at the disciplinary hearing and applicable case law tells us that the appropriate discipline in this matter is a three (3) year suspension. Prior to his involvement with Mr. McDermott leading to his conviction, Mr. Garcia lead an exemplary life characterized by a love of his family and honesty, truthfulness and integrity in his professional and personal life. These facts are undisputed. In fact, the Bar stipulated to Mr. Garcia s character and reputation as mitigating factors in this cause. At his disciplinary hearing, Mr. Garcia also placed into evidence substantial, meaningful and 26

32 uncontroverted evidence of mitigation that established that the charges to which he pleaded guilty were a complete aberration from the manner in which he lead his life prior to his conviction. While Mr. Garcia s life as a devoted father and family man, as an ethical and honest attorney and as a man of character, honesty and integrity, cannot excuse his wrong, so too, his life, deeds and accomplishments cannot be ignored in crafting a penalty which while punishing him, will afford him the opportunity to again practice law and continue to serve the community. Respectfully submitted, G. Michael Keenan 27

33 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail 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 June, CERTIFICATE OF COMPLIANCE WE HEREBY CERTIFY that this Brief is in compliance with the font requirements of Rule 9.21(a), Florida Rules of Appellate Procedure. G. MICHAEL KEENAN, P.A. Attorneys for Petitioner, JOHN ANTHONY GARCIA Suite Old Okeechobee Road West Palm Beach, Florida (561) Telephone (561) Telefax By: G. Michael Keenan Florida Bar No