IN THE SUPREME COURT OF FLORIDA (Before a Referee) AMENDED REPORT OF REFEREE. Pursuant to the undersigned being duly appointed as referee to conduct

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR Complainant, vs. ANDREW JAY NIERENBERG, Supreme Court Case No. SC The Florida Bar No ,885(11L) Respondent. / AMENDED REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to Rule 3-7.6, of the Rules Regulating The Florida Bar, the following proceedings occurred: On July 6, 2007, The Florida Bar filed its Complaint against Respondent as well as its Request for Admissions. Subsequently, on December 19, 2007 pursuant to negotiations between the parties, Respondent filed his Conditional Guilty Plea and Consent Judgment for Discipline admitting among other things, that he failed to inform the trial court and opposing counsel, Richard Allen (hereinafter referred to as Mr. Allen) that his client, Eli Baron, (hereinafter referred to as Mr. Baron), a defendant in a civil litigation matter, was incarcerated in Collier county on

2 unrelated charges during an extended period of time when Mr. Allen sought repeatedly to schedule Mr. Baron s deposition without success. On December 19, 2007, The Florida Bar filed its Petition for Approval of Respondent s Conditional Guilty Plea and Consent Judgment for Discipline. Pursuant to the terms negotiated by the parties, the undersigned filed its initial Report of the Referee on December 19, 2007, accepting Respondent s plea and adopting The Florida Bar s recommendation that Respondent be found guilty of violating Rule (Candor to the Tribunal), Rule (Truthfulness in Statements to Others), Rule (Respect for Rights of Third Persons), and Rule 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. In addition, the undersigned adopted the following recommendations regarding disciplinary measures to be applied: A. That Respondent receive a public reprimand to be administered by appearance before the Board of Governors. B. That Respondent attend The Florida Bar s Professionalism Workshop within six months from the entry of the Supreme Court order approving this consent judgment. That Respondent pay all fees and expenses incurred with such workshop and submit proof of completion of the course to the bar s headquarters office within thirty days of completion. Lastly, the undersigned recommended that The Florida Bar s administrative costs in the amount of $ be assessed against Respondent. 2

3 On March 5, 2008, the Supreme Court of Florida rejected Respondent s Conditional Guilty Plea and Consent Judgment for Discipline concluding that the recommended sanctions were too lenient and remanded the case for hearing or alternate resolution before the undersigned referee. On October 30, 2008, a bifurcated final hearing was held in this matter to determine whether Respondent had violated the Rules alleged in the subject Complaint. All of the aforementioned pleadings, responses thereto, exhibits received in evidence, including hearing transcripts of the testimony of Respondent and Mr. Allen and this Amended Report constitute the record in this case and are forwarded to the Supreme Court of Florida. Mr. and Mrs. Baron also testified on behalf of Respondent during the aforementioned hearing however, the undersigned did not request transcripts of their testimony. II. FINDINGS OF FACT A. Jurisdictional Statement. Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. B. Narrative Summary of Case. Respondent represented Mr. Baron in a highly contentious civil litigation matter filed by plaintiff Frank Amedia (hereinafter referred to as Mr. Amedia) on January 22 nd, 2003 in the Eleventh Judicial Circuit Court in and for Miami-Dade County. Mr. Amedia was 3

4 represented by the law firm of Pertnoy, Solowsky & Allen, P.A. Mr. Robert Allen acted as lead counsel during the relevant time periods in this case. According to Mr. Allen s hearing testimony, the litigation between Mr. Almedia and Mr. Baron involved a contract dispute between both men who were partners in several limited partnerships that owned real estate. In short, Mr. Almedia was alleging that amendments were made to existing partnership agreements that wrongfully attempted to bind him beyond the point in which he believed he had contracted. Mr. Baron, on the other hand, held the position that the new agreements were binding on Mr. Almedia. As a result of the facts in the underlying case, Mr. Allen testified that the credibility of the parties was an important issue because the lawsuit was boiling down to a swearing match between the Mr. Almedia and Mr. Baron. Hearing testimony of Mr. Allen, pg. 64. In terms of the credibility of the parties in the underlying lawsuit, prior to the filing of the Complaint, Mr. Baron was convicted of grand theft and sentenced to one year probation. This conviction was known to the Plaintiff and Mr. Allen. In fact, according to Respondent s own response to Mr. Allen s subsequent Motion for Sanctions in the underlying case, Plaintiff initially included the facts of the criminal conviction in their initial Complaint in an attempt to prejudice Mr. Baron before the trial court. Respondent, on the other hand, did not believe that Mr. Baron s prior criminal case or conviction were relevant to the underlying lawsuit. 4

5 He further argued in said response that the scandalous documents were omitted from Mr. Amedia s next Amended Complaint after the Court dismissed the first, having served the purpose of trying to prejudice Mr. Baron before the court with the extraneous materials and matters. The fact that from the inception of the underlying case Respondent wanted to keep Mr. Baron s criminal conviction separate and apart from the underlying case establishes an important backdrop in determining Respondent s mind set and intent to withhold Mr. Baron s subsequent incarceration for probation violation regarding the same grand theft conviction. The relevant events in the instant action began when Mr. Allen decided he would take Mr. Baron s deposition. On August 12, 2004, Mr. Allen mailed his first Notice of Deposition to Respondent scheduling Mr. Baron s deposition for August 25, What followed was a series of unnecessary and dilatory actions by Respondent postponing Mr. Baron s deposition until after Mr. Baron s release from jail on November 30, In fact, Mr. Allen did not succeed in taking Mr. Baron s deposition until January 6, 2005, approximately five months after its initial setting. Moreover, Mr. Allen did not learn that Mr. Baron had been incarcerated until January 6, 2005 when he deposed Mr. Baron. In defense to The Florida Bar s Complaint, Respondent maintains the position that he did not have a duty to disclose the fact that Mr. Baron had been 5

6 incarcerated on September 13, 2004 for violation of probation relating to his conviction for grand theft. Respondent further maintains that he did not know about Mr. Baron s continued incarceration, that he did not have an ongoing duty to determine the status of his client s incarceration nor did he have an ongoing duty to ascertain Mr. Baron s whereabouts. Furthermore, Respondent claims Mr. Baron s deposition was repeatedly cancelled due to unrelated scheduling conflicts and because the case was not at issue and not because his client was in jail. The undersigned has carefully reviewed and considered all letters, pleadings and as well as the hearing testimony of Mr. and Mrs. Baron, Respondent and Mr. Allen and concludes that Respondent did intentionally fail to disclose his client s incarceration to both Mr. Allen and the trial court. The failure to disclose provided Respondent and his client the strategic advantage of not having Mr. Baron deposed while incarcerated in a county jail facility in Naples. This fact is evidently clear, especially in light of the purported acrimonious relationship between the parties during the underlying litigation. Furthermore, the failure to disclose the incarceration and whereabouts of his client postponed and delayed his client s deposition until after Mr. Baron s probation violation was dismissed; a resolution Respondent, Mr. Baron and his criminal defense lawyers thought was imminent as they believed the violation of probation allegations were merit less. 6

7 In addition, the undersigned finds that Respondent did have a duty to disclose Mr. Baron s incarceration to Mr. Allen. Mr. Baron s incarceration for felony violation of probation was material and relevant to the Plaintiff s case due to the credibility issues that existed in the underlying litigation. Moreover, Respondent also had a duty to investigate and learn the whereabouts of his client as soon as he cancelled Mr. Baron s first and second scheduled depositions without legal objection and after advising Mr. Allen that he agreed to reschedule the deposition on an agreed upon date. Respondent could have easily determined the status of Mr. Baron s probation violation and incarceration by calling either Mr. Baron s criminal counsel or dissolution of marriage attorney in Naples. Respondent s willful blindness regarding his client s whereabouts was dilatory and led to a five month delay in the case, needless litigation and a needless expenditure of resources and attorney s fees. The parties agree that Mr. Baron s deposition could have easily been taken in the Collier County jail. Especially in light of Mr. Allen s testimony wherein he explained that his residence in Weston, Florida, located on the Northwest section of Broward County is almost the same distance to Naples as it is from Downtown Miami. Lastly, the undersigned finds that Mr. Baron s last minute, unilateral cancellation of Plaintiff s Motion to Dismiss the Counterclaim which was specially 7

8 set for November 1, 2004 was also dilatory and directly related to the charges pending before this court. The cancelation of the November 1, 2004 hearing was necessary in order to avoid a ruling on the motion and thus prevent the case from being at issue prior to Mr. Baron s release from jail. Respondent was well aware that a ruling on Plaintiff s Motion to Dismiss the Counterclaim would have eliminated the only legal defense available to continue to prevent Mr. Baron s deposition before his release from jail. Moreover, this court finds, the reason provided by Respondent for the cancellation of the November 1, 2004 specially set hearing was neither reasonable nor justified. According to Respondent, he cancelled Plaintiff s specially set hearing because he made plans travel to Massachusetts to paint his unborn grandson s nursery room. Unlike other out of town trips taken by Respondent during the time Mr. Baron was scheduled for deposition. The trip to Massachusetts to paint the nursery room for his unborn grandson was neither an emergency nor a religious holiday and therefore, not an acceptable reason to unilaterally cancel a specially set hearing which had been scheduled months in advance. The following timeline outlines the relevant events in this case which, when taken as a whole, support the undersigned s findings: Aug. 12, 2004 Mr. Allen s initial Notice of Deposition of Eli Baron scheduled for August 25, 2004 at 9:30 a.m. TFB Exh.1A 8

9 Aug. 24, 2004 Respondent faxed a letter to Mr. Allen at 4:26 p.m. canceling Mr. Baron s deposition scheduled for the next morning. TFB Exh. 1B Respondent claimed he failed to timely see the Notice of Deposition because it got hooked by its staple to Plaintiff s Notice of Hearing regarding Plaintiff s Motion to Dismiss Counterclaim and therefore his client was not aware of the deposition. Respondent did not object to the deposition. Instead, he informed Mr. Allen that he tried to reach Mr. Baron without success to notify him of the deposition implying to Mr. Allen that he would have produced Mr. Baron for deposition had he been able to contact him. Respondent also stated he would be willing to work out a new date for the deposition if Mr. Allen s office provided alternate dates. Again, clearly giving Mr. Allen the green light to reschedule the deposition as he was willing to produce his client for deposition without objection. Sept. 13, 2004 Months later, on May 19, 2005, Respondent filed a Response and Objection to Plaintiff s Motion for Sanctions and erroneously advised the court that Mr. Allen s first deposition notice for August 25, 2004, did not reach him and that he was not available because of conflicts. Mr. Baron was arrested in Collier County, Florida for violation of probation. Respondent learned of Mr. Baron s arrest on the same day from Mr. Baron s family law attorney who telephoned him to advise him of the arrest. Respondent made one or two referrals for 9 TFB Exh. 7 Hearing testimony of Respondent pg TFB Exh. 13

10 criminal defense attorneys to assist Mr. Baron. Respondent did not inform Mr. Allen of his client s incarceration knowing that Mr. Allen was attempting to reschedule the deposition and was awaiting receipt of alternate deposition dates. Sept. 15, 2004 Oct. 11, 2004 In the May 19, 2005, Response and Objection to Plaintiff s Motion for Sanctions, referenced above, Respondent erroneously advises the trial court that he was not apprised of the incarceration when it first occurred in mid- September, 2004; learning of it sometime later Respondent traveled to New Jersey for the Jewish Holidays returning to Miami on or about Sept. 21, Respondent did not file a Notice of Unavailability nor did he inform Mr. Allen that he was leaving town. Respondent failed to reschedule the deposition with Mr. Allen before he left town. Respondent did not advise Mr. Allen that his client had been arrested prior to leaving town. Resulting in Mr. Allen s continued calls in vain, attempting to coordinate Mr. Baron s deposition. Having heard no response from Respondent, Mr. Allen unilaterally scheduled Mr. Baron for deposition and sent out his second Notice of Deposition of Eli Baron for October 27, 2004 at 9:30 a.m. Mr. Allen drafted a companion cover letter asking Respondent to respond in writing with alternate dates if the scheduled deposition date was not acceptable. 10 TFB Exh. 7 Hearing testimony of Respondent pg. 29. TFB Exh. 2A TFB Exh. 2B

11 Oct. 16, 2004 Oct. 18, 2004 Mr. Allen also reminded Respondent of the upcoming hearing scheduled for November 1, 2004 on Plaintiff s Motion to Dismiss Counterclaim. 4:35 p.m. Respondent sent a fax cover sheet to Mr. Allen including the following handwritten note in capital letters: HAVE BEEN SICK LAST FEW DAYS. CANNOT MAKE DEP YOU PROPOSE FOR 10/27 I WILL BE OUT OF STATE. Respondent did not provide alternate deposition dates as requested by Mr. Allen. Respondent did not raise any legal objection to the scheduled deposition. Respondent did not advise Mr. Allen that Mr. Baron was in jail, a fact both parties agree would have made the deposition easier to schedule in the Collier County jail. In response to the second cancellation, Mr. Allen sent Respondent a fax cover sheet on October 18, 2004 at 9:36 a.m. refusing to cancel Mr. Baron s second scheduled deposition without first receiving a written agreement establishing an alternate deposition date. On or about that same day, Respondent claims he learned either from Mr. Baron or Mr. Baron s criminal or family attorney that Mr. Baron was still in jail but expected to be released the next day on October 19, 2004 following a hearing on his motion to dismiss the probation violation affidavit. TFB Exh. 2C TFB Exh. 2D Hearing testimony of Respondent pg. 22 also Resp. Exh. 4 11

12 Oct. 19, 2004 Oct. 21, 2004 Respondent testified he assumed Mr. Baron had already been released from jail. Respondent did not respond to Mr. Allen s faxed memo advising that Mr. Baron was incarcerated. Mr. Baron was not released from jail as expected. Instead, Judge Cynthia Ellis recused herself from Mr. Baron s criminal case in Collier County. The case was reassigned to Judge J.R. Schoonover and rescheduled for hearing on October 22, Respondent filed a Motion for Protective Order and Notice of hearing for November 3, 2004 regarding Mr. Baron s deposition scheduled for October 27, In the Motion for Protective Order, Respondent raised for the first time the legal objection that Mr. Baron s deposition should be cancelled because Plaintiff s Motion to Dismiss the Counterclaim was set for hearing in November and therefore the case was not at issue. As a further ground for the protective order, Respondent argued the subject deposition was unilaterally set without consultation by Mr. Allen. The fact that the deposition was unilaterally set while technically true is misleading. Mr. Allen unilaterally rescheduled the deposition after Respondent failed to provide alternate deposition dates as requested by Mr. Allen and after Respondent cancelled Mr. Baron s deposition two times without providing alternate deposition dates as requested by Mr. Allen. Significantly, Plaintiff s Motion to Dismiss the Counterclaim was specially set for November 1 st, 2004 before Respondent s November 3 rd Motion 12 TFB Exh. 13, pg 5., Resp. s Answer pg. 5 Resp. Exh. 4 TFB Exh. 3A & 3B TFB Exh. 2B

13 for Protective Order. The undersigned Referee finds the scheduling of Respondent s Motion for Protective Order after Plaintiff s Motion to Dismiss the Counterclaim led to Respondent s unilateral cancellation of the November 1 st, 2004 specially set hearing. Lastly, in the Motion for Protective Order, Respondent advised the court of travel plans to Massachusetts (to paint the nursery room for his expected grandchild) from October 26, 2004 returning on November 1 st, As stated above, Respondent improperly scheduled his trip to Massachusetts knowing Mr. Allen had specially set a hearing on Plaintiff s Motion to Dismiss the Counterclaim for November 1 st, 2004, a date which had been specially set over two months in advance since August In the Motion for Protective Order, Respondent failed to disclose the fact that his client was incarcerated. Moreover, on the same day, Respondent also faxed an exparte letter to Judge Henry Harnage, the presiding judge in the underlying case, objecting to Plaintiff s specially set hearing scheduled for November 1, Hearing testimony of Respondent pg. 45. In addition to his travel plans, Respondent advised the court that he believed the Motion to Dismiss Plaintiff s Counterclaim had already been litigated to Respondent s satisfaction and that the parties were simply awaiting the court s ruling. 13

14 Respondent did not file a Motion to Strike Plaintiff s Motion to Dismiss the Counterclaim when it was scheduled for hearing. Instead, he chose to send a letter directly to the trial judge, with a faxed copy to Mr. Allen, stating his reasons why the hearing should be cancelled. The undersigned Referee finds the letter sent directly to Judge Harnage was an improper exparte communication with the court even though Respondent faxed a copy to Mr. Allen. Respondent claims he received a call from Judge Harnage s Judicial Assistant canceling the November 1, 2004 hearing. The November 1 st, 2004 specially set hearing was cancelled without notice to Mr. Allen and without giving him a chance to respond or object to the cancellation of a hearing he had specially set three months in advance. Oct. 22, 2004 Mr. Baron s criminal case was reset by his criminal defense lawyers for October 27, Resp. Exh. 4 Oct. 25, 2004 Mr. Baron remained incarcerated. Mr. Allen filed a Notice of Hearing for November 1, 2004 on Respondent s Motion for Protective Order, scheduling it for the same day he was expecting to appear before Judge Harnage on his Motion to Dismiss the Counterclaim. Mr. Allen later received word that the November 1, 2004 hearing was cancelled. As a result, he arranged for an associate appear on November 3, 2004 to litigate Respondent s Motion for Protective Order. TFB Exh. 3C Hearing testimony of Mr. Allen pg

15 Respondent failed to appear for hearing on November 3, He testified Judge Harnage s judicial assistant notified him by phone that the Judge cancelled all hearings in the case when he cancelled the November 1 st hearing. Hearing testimony of Respondent pg. 47 Mr. Allen denied ever receiving notification of the cancellation of the November 3 rd hearing. Oct. 26, 2004 Oct. 27, 2004 Nov. 3, 2004 Nov. 9, 2004 Respondent traveled to Massachusetts, returning to Miami on November 1, Mr. Baron s criminal case in Collier County is continued again for hearing on November 5, Mr. Baron remained incarcerated. Respondent failed to appear for hearing on his own Motion for Protective Order. Mr. Allen s associate appeared for the hearing wherein Judge Harnage denied Respondent s Motion for Protective Order and ordered Mr. Baron to appear for deposition at a date and time certain on or before November 19, Mr. Allen s Third Notice of Deposition for Mr. Baron s deposition is sent out. The deposition is scheduled for November 16, 2004 at 10:00 a.m. in compliance with Judge Harnage s Order above. On the same day, Mr. Baron s Probation Violation Hearing is rescheduled again for November 30, Mr. Baron remained incarcerated. Resp. Exh. 4. TFB Exh. 3D TFB Exh. 4A Resp. Exh. 4 15

16 Nov. 10, 2004 Respondent filed a Motion to Vacate Judge Harnage s denial of his Motion for Protective Order and Renewed Motion for Protective Order for the November 16, 2004 deposition. TFB Exh. 4B Respondent renewed the same legal objection arguing Mr. Baron s deposition should be postponed because the case was not yet at issue. (As noted above, Plaintiff s Motion to Dismiss the Counterclaim was cancelled by Respondent thus preventing the case from being at issue and arguably maintaining the legal ground viable to postpone Mr. Baron s deposition until his release from jail.) Respondent further claims he was not available for deposition on November 16, 2004 because he was scheduled to appear for hearing in U.S. Bankruptcy Court. Respondent also mislead the court by alleging that Mr. Baron was out-of-town and cannot be available for deposition. Respondent did not advise the trial court or opposing counsel that his client was incarcerated in the Collier County jail. Nov. 11, 2004 Respondent testified during the Final Hearing in this action that he assumed Mr. Baron was out of jail and out of town visiting his child in Naples consistent with his dissolution of marriage visitation schedule that existed prior to his incarceration when he advised the court that his client was out of town. Responsive letter from Mr. Allen agreeing to reschedule Mr. Baron s deposition of November 16, 2004 only upon receipt of an alternate date certain in writing as well as a signed, Agreed 16 Hearing testimony of Respondent pg. 52. TFB Exh. 4C

17 Nov. 18, 2004 Nov. 30, 2004 Dec. 14, 2004 Dec. 16, 2004 Order of the Court confirming the new deposition date. The day before the expiration of the deadline given by Judge Harnage for the taking of Mr. Baron s deposition, Mr. Allen is forced to file a five page Motion to Strike Respondent s Pleadings and for Entry of Judgment in Favor of Plaintiff and for Other Relief as he has yet to achieve the scheduling of Mr. Baron s deposition. Mr. Allen alleges frustration in dealing with Respondent s bad faith litigation practice and gross indifference to the Court and Florida Rules of Procedure. Mr. Baron is released from Jail in Collier County after his probation violation case is dismissed. Trial Court reserves ruling on Mr. Allen s Motion to Strike Mr. Baron s Pleadings and orders Respondent to notify Mr. Allen of his client s available dates for deposition no later than January 7, Respondent drafts a letter to Mr. Allen advising Mr. Baron is available for deposition every week day from December 16, 2004 through January 7, 2005 except December 23 and 24, In addition, Respondent advises he is not available December 22, 2004 because of other deposition commitments. Respondent also advises that his first grandson is due to be born on or near December 31 st and that he expects to travel to Massachusetts for the birth and Bris. Respondent also advises he will agree to the scheduling of Mr. Baron s deposition in accordance with these dates. TFB Exh. 4D Resp. Exh. 4 TFB. Exh. 6 TFB Exh. 5B 17

18 Dec. 17, 2004 Dec. 22, 2004 Jan. 6, 2005 Feb. 22, 2005 May 19, 2005 Mr. Allen schedules Mr. Baron for deposition on Tuesday, December 28, 2004 at 10:00 a.m. Correspondence from Mr. Allen to Respondent agreeing once again to reschedule Mr. Baron s deposition until Thursday, January 6, Mr. Baron is finally deposed. Mr. Allen learns for the first time that Mr. Baron has been incarcerated during most of the time Mr. Allen was attempting to schedule him for deposition. Mr. Allen files a Motion for Sanctions against Mr. Baron for Respondent s complete lack of candor and outright deception for among other things, failing to disclose his client s incarceration. Hearing on Mr. Allen s Motion for Sanctions is argued before Judge Robert Scola who took over Judge Harnage s civil division and consequently became the presiding judge in the underlying case. On the same day of the hearing, Respondent filed a 15 page Response and Objection to Plaintiff s Motion for Sanctions. In his response, Respondent argued among other things that there has been no dilatory conduct and that he had no duty to communicate any material information, of any kind. He also argued that his client s incarceration was not relevant. Moreover, Respondent argued that Mr. Allen s Motion for Sanctions is an attempt to divert attention from Baron s AMENDED 18 TFB Exh. 5 TFB Exh. 5D Hearing testimony of Mr. Allen pg. 36. TFB Exh. 6 There was no court reporter present. TFB Exh. 7

19 COUNTERCLAIM AND DEMAND FOR JURY TRIAL filed and served in January Emphasis in the original. Most significantly, in paragraph 12, Respondent erroneously argues that he properly interposed, prior to any incarceration his client s deposition because the case was not yet at issue. This is entirely false. Mr. Baron was arrested on September 13, The first time Respondent sought to cancel Mr. Baron s deposition alleging the fact that the case was not at issue was in his Motion for Protective Order filed on October 21, In addition, Respondent erroneously stated in paragraph 14.A. that he did not learn of Mr. Baron s incarceration when he got arrested learning of it only some time later Respondent testified during the subject disciplinary hearing that he made a mistake in making that statement. Further, in paragraph 14.E. Respondent erroneously advised Judge Scola, in the same manner as he did Judge Harnage, that Mr. Allen s first Notice of Deposition for August 25, 2004 did not reach him. Emphasis in the original. That statement is also false. Respondent did not see the notice of deposition because the notice allegedly got attached by its staple to another pleading in a pile of papers on his desk. Respondent also attempted to unjustly malign Mr. Allen by advising Judge Scola that Mr. Allen had developed an unfortunate practice of attempting to schedule matters, including 19

20 contested hearings, unilaterally and without consultation as to dates. The evidence presented clearly demonstrates Mr. Allen made repeated attempts in writing and by telephone to schedule Mr. Baron s deposition before being forced to unilaterally schedule his deposition two times. In paragraph 14.I. Respondent incorrectly argued that Mr. Allen unilaterally arranged for a special set hearing for November 1, 2004 at a time when he was scheduled to be out of town with his family. This is also not true. The November 1 st hearing was scheduled in August 2004 without objection by Respondent. Moreover, Respondent never filed a notice of unavailability and objected for the first time on October 21, 2004 in his Motion for Protective Order. During the hearing Respondent purportedly advised Judge Scola he would not have a duty to disclose his client s incarceration even if the Judge ordered him to produce his client for deposition in his office the next day. Respondent agreed he would exit the courtroom leaving the Court with the impression he could comply with the court s order. TFB Exh. 10, pgs May 24, 2005 Judge Scola granted Mr. Allen s Motion for Sanctions and requested that Mr. Allen prepare a proposed order. Letter from Respondent to Judge Scola objecting to Mr. Allen s proposed order regarding the May 19, 2005 hearing after missing Mr. Allen s deadline for objections to same. TFB Exh. 9A 20

21 May 27, 2005 Following the hearing, and after receiving and reviewing Respondent s objections in his May 24, 2005 letter, Judge Scola signed and adopted an Order drafted by Mr. Allen Granting his Motion for Sanctions and Attorney s Fees and Costs Against Respondent in the amount to be determined at a later date. TFB Exh. 8 June 6, 2005 In the Order, Judge Scola found, among other things, that Respondent breached his duty of candor and honesty to the Court by failing to disclose his client s incarceration. The Court did not find Respondent s actions to be resulting from oversight or mistake rather, his failure to disclosure his client s incarceration was deliberate, intentional and calculated to deprive the Court and counsel of relevant facts. Respondent filed a Motion to Vacate and Set Aside Judge Scola s Order of May 27, 2005 TFB Exh. 9B June 22, 2005 Mr. Allen s Notice of Hearing regarding Plaintiff s Motion for Judgment Against Andrew Nierenberg for July 7, TFB Exh. 9D July 1, 2005 July 5, 2005 July 19, 2005 Aug. 8, 2005 Respondent s Emergency Motion to Continue the July 7 th, 2005 hearing alleging medical reasons and conflicts with his family vacation schedule. Order Granting Respondent s Emergency Motion for Continuance and Order requiring the hearing to be set no later than August 31, Re-Notice of Hearing Plaintiff s Motion for Judgment against Andrew Nierenberg for August 29, Respondent s Notice of Hearing Defendant s Motion to Vacate and Set Aside May 27 Order or 21 TFB Exh. 9E TFB Exh. 9F TFB Exh. 9I TFB Exh. 9J

22 Aug. 29, 2005 to Modify Same for August 29, Hearing regarding the above referenced Motions. Judge Scola granted Plaintiff s Motion for Sanctions and attorneys fees. The total amount awarded totaled $ and has been paid by Respondent. TFB Exh. 10 & 11. III. RECOMMENDATION AS TO GUILT For these reasons the undersigned recommends that Respondent be found guilty of violating Rule (Candor to the Tribunal), Rule (Truthfulness in Statements to Others), Rule (Respect for Rights of Third Persons), and Rule 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED A final hearing on discipline was held on January 30, During the hearing Respondent presented character testimony from three members of The Florida Bar, Brian Pelzman, Esq., Stephen McDonald, Esq., and Juan Figueras, Esq. In addition, Respondent presented character evidence from two clients David M. Baruch and Michael M. Lally as well Ian Zane Heller the Branch Director of the South Dade Jewish Federation. Respondent also testified and provided background information regarding his legal experience and his many civic 22

23 activities. He maintained the position that he did nothing wrong in the underlying civil case to warrant the instant Florida Bar action. All witness who testified stated they know Respondent to be reliable, honest, forthcoming, extremely detailed and meticulous in their dealings with him relating to the various matters they were involved in with him. In addition the undersigned carefully reviewed the parties Memorandum of Law. Further, the undersigned relied on the following Florida Standards for Imposing Lawyer Sanctions in formulating the disciplinary recommendations as follows: Section Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action. Section 7.2 Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public or the legal system. Additionally, in contemplating the appropriate recommendation, the undersigned considered The Florida Bar v. Lathe, 774 So.2d 675 (Fla. 2000) case wherein the referee, appropriately stated that lawyers must be made to realizes that honesty and candor in dealing with others is part of the foundation upon which respect for the profession is based. 23

24 The detailed timeline in this case is riddled with examples wherein Respondent either played loose with the facts in his pleadings at best or at worst, outright lied to the court. Moreover, Respondent s failure to realize and accept his duty to disclose the relevant and material fact that his client was incarcerated coupled with the intentional decision to withhold that information from opposing counsel and the court, led to needless litigation and a derailment of the underlying litigation for one full year, if not more. This behavior not only frustrates the legal system as a whole but also undermines the public s trust in lawyers and the legal profession. follows: Accordingly, the undersigned recommends that Respondent be disciplined as A. A thirty day non-rehabilitative suspension. B. Respondent shall be placed on one year probation to be terminated upon successful completion of The Florida Bar s Professionalism Workshop. Respondent shall be responsible for paying all fees and expenses incurred with such workshop and shall submit proof of completion of the course to the bar s probation officer. C. Payment of The Florida Bar s costs in these proceedings. V. PERSONAL HISTORY, PAST DISCIPLINARY RECORD AND AGGRAVATING AND MITIGATING FACTORS A. Personal History of Respondent: Age: 61 Dade admitted to The Florida Bar: June 6, 1983 Prior Disciplinary Record: None 24

25 B. Aggravating Factors The undersigned finds the following aggravating factors: (1) 9.22(f) submission of false evidence, false statement, or other deceptive practices during the disciplinary process; (2) 9.22(g) refusal to acknowledge wrongful nature of conduct, and (3) 9.22(i) substantial experience in the practice of law. C. Mitigating Factors The undersigned finds the following mitigating factors: (1) 9.32(a) absence of a prior disciplinary record; (2) 9.32(g) character and reputation; (3) 9.32(j) interim rehabilitation; and (4) 9.32(k) imposition of other penalties or sanctions. 25

26 VI. STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED The undersigned finds that the following costs were reasonably incurred by The Florida Bar and should be assessed against Respondent: Administrative costs..$ Court reporter attendance fee for September 24, 2007 status conference. $ Court reporter attendance fee for August 11, 2008 status conference...$ Court reporter attendance fee for October 30, 2008 final hearing.....$ Transcript of proceedings (excerpts)/ ASCII Disk/Condensed transcripts & delivery.$ Court reporter attendance fee for January 30, 2009 final hearing (on discipline)...$ TOTAL $ 3,

27 It is recommended that such costs be charged to 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 or The Florida Bar. Dated this day of January, Copies furnished to: Jennifer R. Falcone Moore, Esq. Richard A. Greenberg, Esq. Andrew J. Nierenberg, Esq. Hon. Beatrice A. Butchko, Referee Circuit Court Judge 27