IN THE SUPREME COURT OF FLORIDA (Before a Referee) REPORT OF REFEREE

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, v. Case No. SC [TFB Case No ,436(18A)(CFC)] JEFFREY MERRILL LEUKEL, Respondent. / REPORT OF REFEREE I. Summary of Proceedings: Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to the Rules Regulating The Florida Bar, a sanction hearing was held on January 12, The pleadings, notices, motions, orders, transcripts and exhibits, all of 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 - JoAnn Marie Stalcup For The Respondent - Chandler Robinson Muller II. Findings of Fact as to Each Item of Misconduct of Which the Respondent Is Charged: After considering all the pleadings and evidence, pertinent portions of which are commented on below, this referee finds: 1. The Florida Bar filed the Notice of Determination or Judgment of Guilt on October 15, 2008 and the Florida Supreme Court issued its Order of Suspension on October 20, The respondent s suspension commenced on that date. 2. Testimony of Witnesses: The respondent subpoenaed and the Court heard testimony from the following witnesses: i. Circuit Judge Debra Nelson; ii. Circuit Judge Marlene Alva;

2 iii. County Court Judge John Woodard; iv. Public Defender James R. Russo; v. Assistant State Attorney Thomas W. Hastings; vi. Drug Court Coordinator; Bessie S. Lamb; vii. Drug Court Counselor David J. Smith, Sr.; viii.deputy Sheriff Corey Kelty; ix. Henry Sweet; x. Laurel Horton-Tognazzini, LMHC; xi. Deborah O. Day, Psy.D.; and xii. Respondent, Jeffrey Leukel. The Florida Bar called no witnesses to testify. 3. In addition, the respondent introduced into evidence (1) respondent s letter to the bar dated April 5, 2006 in which he self-reported his arrest; (2) a contract entered into with Florida Lawyers Assistance Inc., dated May 5, 2006 and an amended contract dated June 16, 2007; (3) a letter dated December 15, 2006 from the respondent to The Florida Bar News related to the closing argument rule; (4) a letter dated January 31, 2007 from Deborah O. Day, Psy.D.; (5) the C.V. for Deborah O. Day, Psy.D., and Laurel Horton-Tognazzini, LMHC; (6) 26 letters from the legal profession, law enforcement, prior clients, and neighbors; and finally, (7) the biography of Circuit Judge Debra Nelson. 4. The respondent s prior disciplinary history was also entered into evidence. 5. The unrefuted testimony from the respondent's witnesses, established the exemplary manner in which the respondent conducted himself before the courts, in dealings with his clients, other counsel, and the community. The witnesses involved in the Drug Court program testified as to the requirements of the program and respondent s exemplary involvement in the program. Clinical psychologist, Dr. Deborah Day, and licensed mental health counselor Laurel Horton-Tognazzini detailed the progress that has been made by the respondent over the past two to three years to fully address the issues that led to his alcohol addiction. Additionally, Dr. Day, and Laurel Horton-Tognazzini, set forth the significant clinical factors from a recovery standpoint, that led to Mr. Leukel's decision to drive on April 3, Both of the experts opined that such conduct was isolated and part of the healing process. This Referee is persuaded by

3 their professional opinions and accepts those opinions and the factors relied upon by the experts in rendering said opinions. 6. This referee found all the witnesses to be credible and their testimony persuasive on proof of rehabilitation. After hearing the testimony of the witnesses it was clear to this referee that the respondent is highly regarded in his community, in the legal community, and in the recovery community. It was clear to this referee that society, rather than needing to be protected from this respondent, is greatly in need of the legal services this respondent can provide. See, Florida Bar v. Berman, 659 So. 2d 1049, 1051 (Fla. 1995); Florida Bar v. Gross, 896 So. 2d 742, 745 (Fla. 2005) (The Court upholds that sanctions against attorneys are to serve three purposes: (1) the judgment must be fair to society by protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty; (2) the judgment must be fair to the attorney in that it imposes sanctions while yet encouraging reformation and rehabilitation; and (3) the judgment must be severe enough to deter others from similar violations.) 7. This referee recognizes that the respondent violated the law while driving when his license was permanently revoked because he had been previously convicted of four DUIs (respondent arrested in 1977, 1996, 1999, and 2002). Moreover, while this referee finds that the respondent knowingly violated the law when he drove his vehicle on April 3, 2006 this referee did not find the evidence supported a finding the respondent was thumbing his nose at the law and/or the courts. Rather, I find respondent's actions were the result of an "emotional relapse" as testified to by Dr. Deborah Day. 8. The evidence disclosed that there was publicity at the time of the respondent's arrest on April 3, This referee finds that any time an attorney violates the law such conduct may create scandal and erode the public s confidence in the judicial system. However, in this case, that occurred in Based upon the evidence and the totality of the circumstances presented to this referee, this referee does not believe the recommended discipline will create any further scandal or erosion of the public s confidence in the judicial system. 9. Moreover, the testimony clearly demonstrated that in the criminal case, the respondent attorney was given no special treatment in the criminal proceeding because of his status as an attorney. See also, letter from prosecutor in the underlying criminal case, Bradford Fisher, as part of the record under respondent's exhibit 7(b).

4 10. Further, the testimony clearly demonstrated the respondent was remorseful, that he took immediate steps to rectify the matter and address his continuing emotional, mental, and physical issues, and that he continued to perform his duties as an Assistant Public Defender in an exemplary manner. 11. The evidence clearly and convincingly demonstrated the respondent has received significant and appropriate punishment through the criminal courts, that he has been humbled by this experience, and that he has shown significant rehabilitation and is continuing his rehabilitation efforts. III. Recommendations as to Whether the Respondent Should Be Found Guilty: As to each count of the complaint, this referee makes the following recommendations as to guilt or innocence: I find the respondent guilty as indicated by rule of the Rules Regulating The Florida Bar as the Judgment and Sentence provides conclusive proof of criminal offenses charged for purposes of the bar rules. IV. Recommendation as to Disciplinary Measures to Be Applied: I have carefully considered all testimony, evidence, and arguments presented by the bar and the respondent. Additionally, I have reviewed and considered all applicable standards. And finally, I have reviewed and considered the following case law: The Florida Bar v. De la Torre, 994 So.2d 1032 (Fla. 2008); The Florida Bar v. Del Pino, 955 So.2d 556 (Fla. 2007); The Florida Bar v. Cohen, 919 So.2d 384 (Fla. 2006); The Florida Bar v. Gross, 896 So.2d 742 (Fla. 2005); The Florida Bar v. Hochman, 815 So.2d 624 (Fla. 2002); The Florida Bar v. Williams, 753 So.2d 1258 (Fla. 2000); The Florida Bar v. Berman, 659 So.2d 1049 (Fla. 1995); The Florida Bar v. Rolle, 661 So.2d 296 (Fla. 1995); The Florida Bar v. Wells, 602 So.2d 1236 (Fla. 1992); The Florida Bar v. Diamond, 548 So.2d 1107 (Fla. 1989); The Florida Bar v. West, 550 So.2d 462 (Fla. 1989); The Florida Bar v. Jahn, 509 So.2d 285 (Fla. 1987); and The Florida Bar v. Bern, 425 So.2d 526 (Fla. 1982). The bar argued four matters in aggravation: (1) the respondent has a prior disciplinary history; (2) that respondent had engaged in a pattern of misconduct; (3) that multiple offenses had occurred; and (4) that respondent had substantial experience in the practice of law. This referee finds that respondent does have a prior disciplinary history and that he does have substantial experience in the practice of law. The bar argued the respondent had engaged in five instances of

5 criminal conduct over the years to support the argument that respondent had engaged in a pattern of misconduct and that multiple offenses were involved. This referee rejects the bar s argument in this regard, and specifically finds that the act of driving with a suspended license on April 3, 2006 is not evidence of a pattern of misconduct, since there was no evidence of alcohol abuse and that the act of driving was a result of judgment influenced by stressors which limited Mr. Leukel's problem solving strategies. The bar conceded there was an absence of a dishonest or selfish motive in this case, that the respondent suffered from personal or emotion problems, that he suffered from a physical or mental disability or impairment, that respondent provided full and free disclosure of his arrest to the bar, that significant testimony had been presented testimony regarding respondent s good character or reputation, that respondent had demonstrated substantial interim rehabilitation, that criminal penalties had been imposed against the respondent, and that the respondent had demonstrated remorse in this matter. In addition, this referee found that the respondent s first DUI, which occurred in 1977, (approximately 32 years ago) was remote in time. This referee finds the respondent is rehabilitated and further finds that recommending a rehabilitative suspension in this case will not serve the three purposes of lawyer discipline, that the judgment is fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing a penalty, that the judgment is fair to the respondent, being sufficient to punish a breach of ethics and at the same time encouraging reformation and rehabilitation, and that the judgment is severe enough to deter others who might be prone or tempted to become involved in similar violations. Therefore, this referee recommends the following: A. Respondent be suspended from the practice of law for a period of 90 days nunc pro tunc to October 20, B. Upon entry of the Florida Supreme Court s order, respondent shall be placed on probation for a period of three years during which time he will enter into a contract with Florida Lawyer s Assistance, Inc under the following conditions:

6 (a) Respondent will participate actively in the programs offered by Florida Lawyers Assistance, Inc., by signing a rehabilitation contract with that organization within thirty (30) days of the order of the Supreme Court of Florida. (b) Respondent shall follow all recommendations by Florida Lawyers Assistance, Inc., during the entire probation period. (c) Respondent will pay a Florida Lawyers Assistance, Inc., registration fee of $ and a probation monitoring fee of $ a month to The Florida Bar s headquarters office. All monthly monitoring fees must be remitted no later than the end of each respective month in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation. C. Respondent will pay the bar s costs in this proceeding. V. Personal History and Past Disciplinary Record: After the finding of guilt and prior to recommending discipline to be recommended pursuant to Rule 3-7.6(m)(1)(D), this referee considered the following personal history and prior disciplinary record of the respondent, to wit: Age: 50 Date admitted to bar: June 23, 1986 Prior disciplinary convictions and disciplinary measures imposed therein: 1. Admonishment by order of the Florida Supreme Court dated February 23, 1995 in Supreme Court Case No (TFB Case No ,781). 2. Ninety day suspension followed by probation by order of the Florida Supreme Court dated August 17, 2000 in Supreme Court Case No (TFB Case Nos ,627, ,125, and ,921). 3. Felony suspension by order of the Florida Supreme Court dated October 20, 2008 in Supreme Court Case No (TFB Case No ,436).

7 VI. 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. Court Reporter Costs $ Bar Counsel Travel Costs $ Referee Travel Costs B. Administrative Costs $ 1, C. Miscellaneous Costs 1. Investigator Expenses $ TOTAL ITEMIZED COSTS: $ 2, It is recommended that 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. Dated this day of, F. Shields McManus Referee Original to Supreme Court with Referee's original file.

8 Copies of this Report of Referee only to: JoAnn Marie Stalcup, Bar Counsel, The Florida Bar, 1200 Edgewater Drive, Orlando, Florida, Chandler Robinson Muller, Counsel for Respondent, Post Office Box 2128, Winter Park, Florida Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida