IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, ) ) Case No. SC95314 Petitioner-Appellant, ) ) v. ) TFB Case No. ) No ,010(15F) JOEL MICHAEL WEISSMAN, ) ) Respondent-Appellee. ) ) THE FLORIDA BAR S INITIAL BRIEF DAVID M. BARNOVITZ, # Bar Counsel The Florida Bar 5900 North Andrews Avenue, Suite 835 Fort Lauderdale, FL (954) JOHN A. BOGGS, # Staff Counsel The Florida Bar 650 Apalachee Parkway Tallahassee, FL (850) JOHN F. HARKNESS, JR. # Executive Director The Florida Bar 650 Apalachee Parkway Tallahassee, FL (850)

2 TABLE OF CONTENTS Pages TABLE OF CONTENTS... i,ii TABLE OF CASES AND CITATIONS... iii, iv CERTIFICATION OF TYPE, SIZE, STYLE AND ANTI-VIRUS SCAN... 1 STATEMENT OF CASE AND FACTS... 1 SUMMARY OF ARGUMENT ARGUMENT POINT I - THE REFEREE IGNORED UNCONTROVERTED, CLEAR AND CONVINCING EVIDENCE ESTABLISHING THAT RESPONDENT KNEW OR HAD REASON TO KNOW THAT HE WAS USING AND DISCLOSING ORAL COMMUN- ICATIONS THAT HAD BEEN OBTAINED THROUGH THE INTERCEPTION THEREOF IN VIOLATION OF FLORIDA S WIRETAP STATUTE POINT II - THE BAR ESTABLISHED BY CLEAR AND CON- VINCING EVIDENCE THAT RESPONDENT KNOWINGLY MADE A FALSE STATEMENT OF MATERIAL FACT TO A TRIBUNAL AND THAT RESPONDENT DID THE SAME THING IN CONNECTION WITH A DISCIPLINARY MATTER POINT III - IF THE REFEREE RENDERED HIS FINDING OF NO VIOLATION IN PART OR IN WHOLE UPON THE PREDICATE THAT OPPOSING COUNSEL DID NOT OBJECT TO RESPON- DENT S USE AND DISCLOSURE OF ORAL COMMUNICATIONS IN VIOLATION OF FLORIDA S WIRETAP STATUTE, SUCH PREDICATE IS FLAWED AND CONSTITUTES ERROR... 21

3 i POINT IV - THE REFEREE S REFERENCE TO A FINDING OF THE COURT IN THE MATRIMONIAL PROCEEDING FORMS NO BASIS TO SUPPORT A CONCLUSION THAT RESPONDENT DID NOT VIOLATE FLORIDA S WIRETAP STATUTE AND THE RULES VIOLATIONS CHARGED BY THE BAR POINT V - THE REFEREE S REJECTION OF THE UNCONTRO- VERTED EVIDENCE CONSISTING OF OPPOSING COUNSEL S STATEMENT TO RESPONDENT THAT THE TAPES PLAYED AT THE JUNE 6, 1996, DEPOSITION WERE OBTAINED BY ILLEGAL MEANS AND RESPONDENT S IMMEDIATE AND DIRECT ACK- KNOWLEDGEMENT THEREOF CONSTITUTES ERROR POINT VI - THE REFEREE PAID NO HEED TO THE RULE OF WILLFUL BLINDNESS, THE APPLICATION OF WHICH THE BAR RESPECTFULLY SUBMITS ESTABLISHES THAT RESPONDENT KNEW OF HIS VIOLATIONS OF FLORIDA S WIRETAP STATUTE 29 POINT VII - RESPONDENT S USE AND DISCLOSURE OF THE ORAL COMMUNICATIONS INTERCEPTED IN VIOLATION OF FLORIDA S WIRETAP STATUTE HAD NO SUBSTANTIAL PUR- POSE OTHER THAN TO EMBARRASS THE PARTIES WHOSE CONVERSATIONS WERE ILLEGALLY INTERCEPTED CONCLUSION CERTIFICATE OF SERVICE... 33

4 ii TABLE OF CASES AND CITATIONS Cases Pages Andrews v. State, 536 So.2d 1108 (Fla. 4th DCA 1988) The Florida Bar v. Spahn, 682 So.2d 1070 (Fla. 1996) United States v. Aleman, 728 F.2d 492 (11th Cir. 1984) United States v. Bragan, 499 F.2d 1376 (4th Cir. 1974) United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct (1976) 30 United States v. Wuliger, 981 F.2d 1497 (6th Cir. 1992)... 23, 31 Wetzler v. State, 455 So.2d 511 (Fla. 1st DCA 1984) Statutes F.S (1)(c)... 1,2,15,18 F.S (1)(d)... 1,2,15,18 F.S (4)(a) F.S (10)(c) U.S.C. sec U.S.C. sec. 2511(2)(d)... 23

5 Rules Regulating The Florida Bar iii Rule 4-3.3(a) Rule Rule 4-8.4(a) Rule 4-8.4(b)... 20

6 iv CERTIFICATION OF TYPE, SIZE, STYLE AND ANTI-VIRUS SCAN Undersigned counsel hereby certifies that the brief of The Florida Bar is submitted in 14 point, proportionately spaced, Times New Roman font, and that the computer disk filed with this brief has been scanned and found to be free of viruses by Norton AntiVirus for Windows. STATEMENT OF THE CASE AND FACTS Case The bar has charged respondent with the commission of several violations of the Rules Regulating The Florida Bar in connection with respondent s use and disclosure of the contents of what the bar asserts were oral communications intercepted in violation of Florida s felony wiretap statute. In that respect, the bar has charged in Count I of its complaint, as follows: On or about June 6, 1996, in a civil litigation, respondent deposed one Susannah Rubin and during the course of such deposition, intentionally used and disclosed to the attendees at such deposition, the contents of an oral communication, viz., a tape recording of a telephone conversation between Mrs. Rubin and one Louis DiCarlo, 1

7 which oral communication respondent knew or had reason to know, was obtained through the interception thereof in violation of F.S (1)(c) and (1)(d) and which oral communication was embarrassing to the said Susannah Rubin and Louis DiCarlo and violative of their legal rights. On or about July 3, 1996, in the civil litigation above referenced, respondent deposed one Gary Holden and during the course of such deposition, intentionally used and disclosed to the attendees at such deposition, the contents of an oral communication, viz., a tape recording of a telephone conversation between Mr. Holden and the said Susannah Rubin, which oral communication respondent knew or had reason to know, was obtained through the interception thereof in violation of F.S (1)(c) and (1)(d) and which oral communication was embarrassing to the said Susannah Rubin and Gary Holden and violative of their legal rights. The bar s complaint was filed on April 14, The bar filed a motion for summary judgment on November 9, Respondent filed a cross motion for summary judgment on November 19, A hearing was held on the parties motions on December 20, The referee issued his report dated January 21, 2000, finding that the bar had not established its case by clear and convincing evidence. The referee s report was considered by the bar s board of governors at the meeting which ended April 7, The board determined to petition for review of 2

8 the referee s finding that the bar had not established its case by clear and convincing evidence. Facts 1. Respondent, Joel Michael Weissman, is and at all times hereinafter mentioned was, a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida [admitted in respondent s answer]. 2. Respondent undertook representation of one Richard Rubin in connection with a dissolution of marriage proceeding which was commenced in the Fifteenth Judicial Circuit Court In And For Palm Beach County, Florida, entitled Susannah Rubin, petitioner, against Richard Rubin, respondent and bearing case number DA (A) FC. The litigation was hotly contested, involving, among other issues, a fight over custody of the parties children, allegations of spousal abuse and charges of infidelity [See Tab C attached to the bar s motion for summary judgment where the trial judge in the matrimonial proceeding describes the extremely litigious custody aspect of the litigation]. 3. In the Spring of 1996, respondent s client, Richard Rubin, engaged the services of a private detective, one Paul Scholtes, for a period of two or three months, giving the detective access to the marital home. Mr. Rubin directed an individual 3

9 named Eric Perez, who was the security gate guard at the development where the Rubin home was located, to give access to the detective [See Tab D attached to the bar s motion for summary judgment]. 4. Eric Perez, the gate guard above referenced, testified that sometime in April or May, 1996, Mr. Rubin had instructed Mr. Perez to give passage to Paul Scholtes to enter the marital home subdivision, that Mr. Scholtes did, in fact, enter the subdivision and that Mr. Scholtes told Mr. Perez that he, Scholtes, had wiretapped the phones at the marital residence and that he, Scholtes, had tapes [See Tab E attached to the bar s motion for summary judgment]. The detective denied having performed such wiretap [See Tab 2 attached to respondent s cross motion for summary judgment]. 5. According to respondent, sometime, on or before June 6, 1996, three tape cassettes were delivered to his law office by an unknown source. Respondent s recollection is that such cassettes were contained in a white envelope on the outside of which was marked "may be useful in the Rubin case" [See Tab F attached to the bar s motion for summary judgment]. 6. Respondent asserts that he did not listen to the tapes upon the receipt thereof or at any time thereafter until June 6, 1996, when he used and disclosed two such tapes at the deposition of Susannah Rubin. By his account, respondent had 4

10 absolutely no idea concerning the content of any of the three tapes until he played two of them at Mrs. Rubin s deposition and the third at the Holden deposition [See Tab F attached to the bar s motion for summary judgment]. 7. It is difficult to understand why respondent would not have listened to the tapes prior to using and disclosing the contents thereof at the referenced depositions. Respondent s credibility on this point is taxed to the extreme. Prior to respondent s use and disclosure of the two tapes that he played at the Rubin deposition, he forecast that he would be playing a third tape, identified Mrs. Rubin as being one of the participants to the conversation on that tape and identified the other participant as "Gary." He gave a brief synopsis of what would be heard on that tape. He stated: Mrs. Rubin, there is going to be a tape played, maybe not today, maybe on Monday, where a voice comes on the phone and says this is Gary, I got it done for you, and then you wanted to talk to him and he says I can t talk to you over the telephone. Does that refresh your memory? [See Tab G attached to the bar s motion for summary judgment]. 8. Respondent s statement regarding such tape involving a "Gary" and Mrs. Rubin with a synopsis of the tape contents constitutes an absolute inconsistency on respondent s part and renders his repeated assertions that he had not listened to the tapes nor had any idea as to the contents thereof until such time as he actually played them as not credible. Even after the June 6, 1996, deposition was concluded, the 5

11 respondent persisted in his stance that he had absolutely no idea, whatever, of the contents of the third [Gary Holden] tape. In his motion for summary judgment, respondent sets forth testimony given by him in the matrimonial civil proceeding where he averred: No sir, I did not know Gary Holden was the speaker on that tape. Richard Rubin knew he was the speaker on the tape, Richard Rubin told me before July 3, 1996 [the date of the Gary Holden deposition], that when we go to Gary Holden s deposition--after we go to Gary Holden s deposition and after the end of his deposition, we should play tape 3. That s what Mr. Rubin told me. I had no knowledge what was on the tape 3. He just told me to do it. [See page 5 of respondent s cross motion for summary judgment]. 9. At a July 3, 1996, deposition of Gary Holden, respondent presented tape number 3 and as he was about to play it, he again asserted: "It s the first time I m listening." [See Tab H attached to the bar s motion for summary judgment]. He then, true to his forecast at the Rubin deposition, used and disclosed a tape recording between Mrs. Rubin and Gary Holden in which a discussion was had concerning the very subject matter respondent had forecast. Respondent has suggested that his client, Mr. Rubin, who had listened to all three tapes at the June 6, 1996, deposition had conveyed the information to him regarding the contents of tape 3, the Holden tape, but respondent s own, sworn testimony belies such suggestion as respondent continued to deny having any information whatever regarding tape 3, the Holden tape, 6

12 subsequent to the June 6, 1996, deposition and at the July 3, 1996, Holden deposition as related above. 10. Having obviously listened to the Holden tape referred to by respondent as tape 3, prior to its use, respondent, therefore, had knowledge of the contents thereof prior to his use and disclosure thereof. It is difficult to understand how respondent, having listened to a tape recording involving Mrs. Rubin and a court clerk would not immediately conclude that such conversation was an intercepted communication in violation of Florida s wiretap statute. Certainly that fact was reasonably foreseeable. It was not necessary, however, for the referee to rely on such inference in determining whether or not respondent violated such statute in that there is direct evidence to establish that respondent knew that the tape he played at the Holden deposition was, in fact, an intercepted oral communication in violation of the statute. 11. On July 3, 1996, respondent deposed Gary Holden, the "Gary" he made mention of at Mrs. Rubin s June 6, 1996, deposition. When he presented tape 3 for purposes of using and disclosing the contents thereof, counsel for Mrs. Rubin immediately objected informing respondent: "I believe it to be a tape that was obtained illegally through an illegal wiretap." [Emphasis supplied. See Tab H attached to the bar s motion for summary judgment]. Respondent then and there was 7

13 put on notice that he was about to use and disclose the contents of a tape obtained through an illegal wiretap. His response was to agree that "It may well be" [See the bar s Tab H] and then proceed to play the tape. 12. The bar established that the 3 tapes in question were intercepted oral communications in violation of the Florida wiretap statute. It presented evidence from each of the participants in the taped conversations that none consented to being taped [See Tabs I, J and K attached to the bar s motion for summary judgment]. Under F.S (3)(d), it is necessary that all parties to the communication have given prior consent to an interception. 13. In light of the foregoing, respondent, prior to his use and disclosure of the contents thereof, knew or certainly had reason to know that tape 3, the Holden tape, was an intercepted oral communication in violation of the Florida wiretap statute. 14. At the June 6, 1996, deposition of Mrs. Rubin, respondent extensively cross examined Mrs. Rubin concerning an alleged tryst between her and a lover. He asked her the most pointed questions concerning marks left on her body as a result of her indulging in love play with her paramour [See Tab G attached to the bar s motion for summary judgment]. Upon her denials, respondent proceeded to play two tapes. The tape conversations parroted the pointed questions he had posed to Mrs. Rubin with explicit discussions between Mrs. Rubin, her lover and a girl friend in whom she 8

14 confided. Mrs. Rubin denied that she was a participant in the taped conversations [Ibid, Tab G]. 15. Respondent insists that he had, prior to his playing thereof, absolutely no idea, whatever, of what the two tapes he played at the Rubin deposition contained; that despite having received such tapes mysteriously and despite the fact that the envelope containing such tapes contained a recitation that the tapes "may be useful in the Rubin case", he did nothing, whatever, to ascertain the contents thereof [See Tab F attached to the bar s motion for summary judgment]. 16. Respondent claims that even after having heard the two tapes played at the Rubin deposition, he had no reason to conclude that the oral communications captured thereon constituted intercepts in violation of Florida s wiretap statute because Mrs. Rubin denied that she was a participant in such conversations [See page 4 of the respondent s motion for summary judgment]. The facts developed that respondent s client identified the tapes to respondent as being conversations involving Mrs. Rubin [Ibid, page 4]. Respondent s partner who attended the deposition recognized Mrs. Rubin s voice as did the court reporter [See Tab M attached to the bar s motion for summary judgment]. The conversations contained explicit details matching exactly the details of respondent s cross examination [See pages 6 through 9 of the bar s motion for summary judgment]. 9

15 17. Once respondent played the two tapes at the Rubin deposition and adversary counsel had an opportunity to hear the contents, the following happened according to the court reporter in attendance: Mr. Weissman stopped questioning Ms. Rubin and asked Ms. Rubin to listen to the tape to see if she recognized the voices. The entire tape was played. There was nothing on this tape but what I transcribed. I recall listening to the tape myself and clearly recognizing Ms. Rubin s voice, which she denied the same. A second tape was played and I transcribed the entire tape. Again, Ms. Rubin s denied it was her voice, but I clearly recognized it as her voice. A recess was taken because Mr. Marlowe wanted to discuss in private Ms. Rubin s testimony as to whether that was her voice on the tape. [See Tab N attached to the bar s motion for summary judgment]. 18. Respondent then determined to replay the two tapes. Having heard the tapes and having had the opportunity to discuss the contents thereof with his client, adversary counsel then objected to the further playing thereof stating: I don t know where the tape came from. We d object to the introduction of the tape. Clearly the tape was obtained by illegal means... [Ibid, Tab G]. Respondent responded by stating: Just as Mr. Marlowe said, the tape may be illegal and that it could 10

16 potentially be given to the State Attorney s Office... [Ibid, Tab G]. Respondent then replayed the tapes. 19. Gary Holden explained how embarrassed he was when he was thrust into the matrimonial proceeding with some suggestion that he acted improperly in his capacity as a deputy county clerk and then had a tape recording which he knew nothing about and never consented to, played in front of strangers and in front of the county clerk s attorney [See Tab P attached to the bar s motion for summary judgment]. COUNT II 20. The bar has alleged in Count II of its complaint that respondent acted dishonestly and/or made misrepresentations to those present at the two depositions, to the civil court involved in the matrimonial proceedings and to the bar when he stated to each that he had no knowledge of the contents of the three tapes in question nor of the speakers thereon before he actually played them at the depositions. 21. Respondent stated at the Rubin deposition, as follows: Mrs. Rubin, there is going to be a tape played, maybe not today, maybe on Monday, where a voice comes on the phone and says this is Gary, I got it done for you, and then you wanted to talk to him and he says I can t talk to you over the telephone. Does that refresh your memory? [Tab G attached to the bar s motion for summary judgment]. There simply is no explanation for that statement other than that respondent had 11

17 listened to the Holden tape. Respondent insisted subsequent to the Rubin deposition that he had absolutely no idea, whatever, regarding the contents of the Holden tape or even that Mr. Holden was a speaker on such tape. He testified in court in the civil proceeding, as follows: No sir, I did not know Gary Holden was the speaker on that tape. Richard Rubin knew he was the speaker on the tape, Richard Rubin told me before July 3, 1996 [the date of the Gary Holden deposition], that when we go to Gary Holden s deposition--after we go to Gary Holden s deposition and after the end of his deposition, we should play tape 3. That s what Mr. Rubin told me. I had no knowledge what was on the tape 3. He just told me to do it. [Page 5 of respondent s cross motion for summary judgment]. When he played the tape at the Holden deposition he stated: "It s the first time I m listening" [Tab H attached to the bar s motion for summary judgment]. Respondent had to know what was on the Holden tape prior to making his gratuitous remark at the Rubin deposition as he not only named the participants in the conversation recorded on the Holden tape, but gave a brief synopsis thereof. Under the circumstances, respondent misrepresented to the participants at the depositions, to the civil court in the matrimonial proceeding, to the bar and to the referee that he had no knowledge of any type, nature or description of the Holden tape prior to his use and disclosure of the contents thereof at the Holden deposition. SUMMARY OF ARGUMENT In Florida, the use and disclosure of oral communications when one knows or 12

18 has reason to know that such oral communications have been intercepted in violation of Florida s wiretap statute, each [use and disclosure] constitutes a felony independent of the act of interception, itself. The elements of each felony are that the violator knew or had reason to know that the use and disclosure were of intercepted oral communications in violation of the statute. The referee ignored overwhelming evidence establishing clearly and convincingly that respondent either knew or had reason to know that the tape recordings he played at two depositions constituted the use and disclosure of intercepted oral communications in violation of the wiretap statute. Respondent forecast the participants in and contents of one such recording prior to his playing thereof and then, immediately prior to using and disclosing the contents thereof was told that the tape was obtained illegally through a wiretap. His response was to agree and then proceed to play the tape. The referee omitted any reference to the entire transaction. Prior to a playing of the other tapes, respondent was again informed that such tapes were obtained "through illegal means". Once again, respondent, agreed that such tapes "may be illegal and given to the State Attorney s Office" but undaunted, played them anyway. The referee, agreeing that respondent s own acknowledgment of the illegality of the tapes constituted knowledge that the tapes should not be publicized, nevertheless concluded that it did not constitute clear and convincing evidence that respondent knew or should have known that the tapes contained illegally intercepted 13

19 oral communications. Even if one were to ignore respondent s prior forecast of the participants to and synopsis of a tape which he claimed never to have heard until the moment that he played it and even if one were to ignore the fact that respondent was informed [prior to his playing thereof] that the tapes that he played were illegally obtained and even if one were to ignore the fact that on each occasion that he was informed that the tapes were illegally obtained, he agreed with such assessment, the evidence establishes that respondent attempted to render himself willfully blind to the obvious; that he had his suspicion aroused at every turn of the proceedings but then deliberately omitted to make further inquiry because he wished to claim ignorance of the obvious. Such willful blindness, itself, constitutes a basis for finding that respondent had knowledge that the intercepted oral communications were captured on the tapes in violation of the wiretap statute and that his use and disclosure thereof was in direct contravention of such statute. ARGUMENT POINT I - THE REFEREE IGNORED UNCONTROVERTED, CLEAR AND CONVINCING EVIDENCE ESTABLISHING THAT RESPONDENT KNEW OR HAD REASON TO KNOW THAT HE WAS USING AND DISCLOSING ORAL COMMUNICATIONS THAT HAD BEEN OBTAINED THROUGH THE INTERCEPTION THEREOF IN VIOLATION OF FLORIDA S WIRETAP STATUTE. The bar is mindful of the axiom that a party contesting a referee s findings of 14

20 fact and conclusions of guilt "carries the burden of demonstrating that... the record evidence clearly contradicts the conclusions." Florida Bar v. Spahn, 682 So.2d 1070, 1073 (Fla. 1996). It is further aware of the maxim that upon summary judgment motions, the burden is upon the movant conclusively to show the nonexistence of genuine issues of material fact. It is respectfully submitted that the following will demonstrate that the referee s conclusions are contradicted by uncontroverted, clear and convincing record evidence which evidence conclusively establishes the nonexistence of genuine issues of material fact. In rendering his report, the referee ignored that allegation of the bar s complaint that charged: On or about July 3, 1996, in the civil litigation above referenced, respondent deposed one Gary Holden and during the course of such deposition, intentionally used and disclosed to the attendees at such deposition, including Mr. Holden, Susannah Rubin, Richard Rubin, the court reporter, Leigh Shinohara, Esquire and G. Carton Marlowe, Esquire, the contents of an oral communication, viz., a tape recording of a telephone conversation between Mr. Holden and the said Susannah Rubin, which oral communication respondent knew or had reason to know, was obtained through the interception thereof in violation of F.S (1)(c) and (1)(d) and which oral communication was embarrassing to the said Susannah Rubin and Gary Holden and violative of their legal rights. [See paragraph 4 of the bar s complaint]. The report of referee is devoid of any mention of such charge involving the Gary Holden deposition as well as the evidence introduced by the bar in support thereof. The following was presented to the referee. 15

21 In Florida, the use and disclosure of oral communications intercepted in violation of Florida s wiretap statute each constitutes a separate felony independent of the act of interception, itself. F.S (10)(c) and (1)(d). The statutes are violated when the person uses and/or discloses the contents of any oral communication "knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this subdivision" [Ibid]. This proceeding revolves about respondent s use and disclosure of oral communications intercepted in violation of the wiretap statute by his playing of three tapes of telephone conversations. It is uncontroverted that the tapes in question were intercepted oral communications in violation of the Florida wiretap statute. The bar presented evidence from each of the participants in the taped conversations establishing that none consented to being taped [See Tabs I, J, & K attached to the bar s motion for summary judgment]. At a June 6, 1996, deposition, respondent played two of the three tapes. He made a forecast regarding the third tape. That forecast and all that follows was ignored by the referee. Respondent stated to the deponent: "Mrs. Rubin, there is going to be a tape played, maybe not today, maybe on Monday, where a voice comes on the phone and says this is Gary, I got it done for you, and then you wanted to talk to him and he says I can t talk to you over the telephone. Does that refresh your recollection?" [Tab G attached to the bar s motion for summary judgment]. 16

22 On July 3, 1996, respondent deposed one Gary Holden and expressed his intention to play a tape recording. Adversary counsel immediately objected, informing respondent: "I believe it to be a tape that was obtained illegally through an illegal wiretap". Respondent agreed: "It may well be" [Tab H, bar s motion for summary judgment]. Despite his forecast at the June 6, 1996, deposition, in referring to the tape he was about to play, respondent stated: "It s the first time I m listening" [Tab H, bar s motion for summary judgment]. Respondent then played the tape using and disclosing the oral communications thereon that had been intercepted in violation of Florida s wiretap statute. He elaborated in testimony given in a civil proceeding: "No sir, I did not know Gary Holden was the speaker on that tape. Richard Rubin knew he was the speaker on the tape, Richard Rubin told me before July 3, 1996, that when we go to Gary Holden s deposition, we should play tape 3. That s what Mr. Rubin told me. I had no knowledge what was on the tape 3. He just told me to do it" [Page 5, respondent s cross motion of summary judgment]. Thus, the referee was presented with evidence establishing respondent s forecast of the contents of the third tape played at the July 3, 1996, deposition, the fact that upon respondent s announcement that he was going to play such tape he was informed by adversary counsel that the tape had "been obtained illegally through an illegal wiretap", respondent s express acknowledgement thereof by his statement, "It may well be", and respondent s statements [inconsistent with his forecast at the June 6, 1996, 17

23 deposition], that he had absolutely no knowledge of the third tape s contents prior to his use and disclosure thereof. As stated above, the referee s report ignores each and every fact relating to the July 3, 1996, deposition of Gary Holden. The bar submits that the proof mandates a finding that respondent knew or reasonably should have known that the tape played at the Holden deposition contained oral communications intercepted in violation of the Florida wiretap statute. He forecast that he was going to play the tape and gave a synopsis of what the tape would reveal. Immediately before he played the tape, adversary counsel objected thereto stating: "I believe it to be a tape that was obtained illegally through an illegal wiretap." Respondent agreed with that assessment stating: "It may well be". Those three items, forecast, warning of illegality and concurrence, are uncontroverted. Respectfully, there is no issue of material fact. The evidence mandates a finding that respondent knew or certainly had reason to know that the tape he used at the Holden deposition contained oral communications intercepted in violation of the wiretap statute. There is no issue involving deference to the report of referee in that the referee paid no heed to the entire subject of the Holden deposition. As stated above, violations of F.S (1)(c) [disclosure] and F.S (1)(d) [use] are felonies [See F.S (4)(a)]. A finding that respondent knew or had reason to know that the "Holden tape" contained oral communications intercepted in violation of the wiretap statute therefore inexorably constitutes a finding 18

24 that respondent violated R. Regulating Fla. Bar 4-8.4(b), which rule provides that a lawyer shall not commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects. POINT II - THE BAR ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT KNOWINGLY MADE A FALSE STATEMENT OF MATERIAL FACT TO A TRIBUNAL AND THAT RESPONDENT DID THE SAME IN CONNECTION WITH A DISCIPLINARY MATTER. The referee neither discussed nor made reference to the bar s charge that respondent knowingly made a false statement of material fact to a tribunal and that respondent did the same in connection with a disciplinary matter. That charge stands apart and independent from the issue regarding whether or not respondent used and/or disclosed the contents of oral communications in violation of Florida s wiretap statute. Respondent has categorically averred in the bar proceeding and before the court in the underlying matrimonial proceeding that he did not know the contents of any of the three tapes that he played prior to his actual playing of such tapes. That simply isn t true and the evidence is clear, convincing, overwhelming and uncontroverted that respondent definitely knew the contents, probably of all three tapes, but certainly of the Holden tape prior to his use thereof. The record is devoid of any explanation by respondent to rebut the following evidence. At the risk of offending the court by repetition, the bar will approach the evidence establishing respondent s knowledge of the contents of the three tapes, or, certainly the Holden tape by postulating the 19

25 following question. Question: If respondent never heard the contents of any of the three tapes until he played them at the depositions as respondent has testified, then how could he predict at the June 6, 1996, deposition of Susannah Rubin: Mrs. Rubin, there is going to be a tape played, maybe not today, maybe on Monday, where a voice comes on the phone and says this is Gary, I got it done for you, and then you wanted to talk to him and he says I can t talk to you over the telephone. Does that refresh your memory? [Tab G attached to the bar s motion for summary judgment]. Respondent cannot argue that his client had tipped him off regarding the tape s contents. That is so because even after the conclusion of the June 6, 1996, deposition respondent took an iron fast stand that he did not know anything, whatever, regarding what was on the third tape. He went to great pains to distance himself from having any knowledge of any type, nature or description regarding the third tape. That is emphasized in his sworn testimony given in the matrimonial proceeding, where he stated: No sir, I did not know Gary Holden was the speaker on that tape. Richard Rubin knew he was the speaker on the tape, Richard Rubin told me before July 3, 1996 [the date of the Gary Holden deposition], that when we go to Gary Holden s deposition--after we go to Gary Holden s deposition and after the end of his deposition, we should play tape 3. That s what Mr. Rubin told me. I had no knowledge what was on the tape 3. He just told me to do it. [Page 5 of respondent s cross motion for summary judgment]. That sworn testimony stated to the court in the civil domestic relations proceeding was proffered by the respondent in his cross motion for summary judgment so that 20

26 respondent has now stated his position, under oath to a tribunal and in connection with a disciplinary proceeding. It is respectfully submitted that respondent s sworn statement to the tribunal in the civil matrimonial proceeding and his repetition of it in the bar disciplinary proceedings is so diametrical to his January 6, 1996, forecast as to permit no other conclusion but that he knowingly made a false statement of material fact to a tribunal and in connection with a disciplinary matter in violation of R. Regulating Fla. Bar 4-3.3(a)(1) and 4-8.4(a). POINT III - IF THE REFEREE RENDERED HIS FINDING OF NO VIOLATION IN PART OR IN WHOLE UPON THE PREDICATE THAT OPPOSING COUNSEL DID NOT OBJECT TO RESPONDENT S USE AND DISCLOSURE OF ORAL COMMUNICATIONS IN VIOLATION OF FLORIDA S WIRETAP STATUTE, SUCH PREDICATE IS FLAWED AND CONSTITUTES ERROR. In his report, the referee states: 8. It is extremely difficult to understand how an experienced and competent practitioner of twenty years experience could present evidence, either in court or in deposition, without first fully familiarizing himself with same. Indeed, it is difficult to understand how opposing counsel can permit the playing of a recording of unknown origin without objecting or at least requesting to hear the entire tape prior to its use. However, the record is clear that this is what occurred in this case. While it is difficult to assess whether or not such statement formed a predicate for the referee s finding of no violation, if it did, the referee was wrong both on the evidence and the law. 21

27 Firstly, the referee s statement that opposing counsel permitted the playing of a recording without objection is erroneous. In the case of the July 3, 1996, Holden deposition, when respondent stated he was going to play a tape recording, opposing counsel immediately objected to the playing of the tape on the specific ground that the tape "was obtained illegally through an illegal wiretap." Secondly, at the June 6, 1996, deposition of Susannah Rubin, once opposing counsel heard the tapes that respondent played, the following transpired according to the court reporter who took and transcribed such deposition: Mr. Weissman stopped questioning Ms. Rubin and asked Ms. Rubin to listen to the tape to see if she recognized the voices. The entire tape was played. There was nothing on this tape but what I transcribed. I recall listening to the tape myself and clearly recognizing Ms. Rubin s voice, which she denied the same. A second tape was played and I transcribed the entire tape. Again, Ms. Rubin s denied it was her voice, but I clearly recognized it as her voice. A recess was taken because Mr. Marlowe wanted to discuss in private Ms. Rubin s testimony as to whether that was her voice on the tape. [Tab N attached to the bar s motion for summary judgment]. Respondent then determined to replay the two tapes. Having heard the tapes and having had the opportunity to discuss the contents thereof with his client, adversary counsel objected to the further playing thereof stating: I don t know where the tape came from. We d object to the introduction 22

28 of the tape. Clearly the tape was obtained by illegal means...[tab G attached to the bar s motion for summary judgment]. Respondent responded by stating: Just as Mr. Marlowe said, the tape may be illegal and that it could potentially be given to the State Attorney s Office...[Ibid, Tab G]. Respondent then replayed the tapes. Respondent argued and apparently the referee agreed that regardless of whether or not he knew or had reason to know that the tapes in question contained illegally intercepted oral communications, because Mrs. Rubin and her counsel did not object to his first use and disclosure at the June 6, 1996, deposition, that lack of objection accomplished two things. First, it constituted a consent by Mrs. Rubin to the interception of her communication and secondly it vested in respondent an absolute right to use and disclose the intercepted communications. There are obvious fallacies in such argument. First, it begs the question regarding the knowledge and consent of the other participants to such conversations. Second, it imposes a duty on the part of the victim of the illegal use and disclosure to know the contents of the tape before it is played. What happened in the case at bar is that respondent played the tapes, Mrs. Rubin and her counsel thereby found out the contents thereof and then objected to the use thereof, characterized them as illegal, intercepted communications only to have respondent agree with such characterization and play the tapes again. At the Holden deposition an objection was made prior to respondent s use and disclosure. 23

29 There is no consent exception in F.S In United States v. Wuliger, 981 F.2d 1497 (Ohio 6th CCA 1992), the United States Sixth Circuit Court of Appeals expressly visited the issue of consent in a case involving the prosecution of an attorney for the use and disclosure of illegally intercepted oral communications in violation of the federal wiretap statute which statute is virtually identical to Florida s with the exception that the federal statute only requires consent from one party to an intercepted communication. The court stated; The defendant further assigns as error the trial court s failure to recognize a "consent to use" defense. No crime is committed under the Act by one who intercepts and records a telephone conversation with the prior consent of one of the parties. 18 U.S.C. sec. 2511(2)(d). The defendant submits that even though the statute does not explicitly so provide, it is similarly no crime for one to use or disclose information from an illegal intercept where one of the parties consents to such use or disclosure. (1508). The defendant cites United States v. Bragan, 499 F.2d 1376 (4th Cir. 1974), in support of this view. The Bragan court found that "[b]ecause Bragan s victims consented to the introduction into evidence of their wiretapped conversation, the exclusionary rule of 18 U.S.C. sec did not render inadmissible the wiretaps Bragan had made in violation of 18 U.S.C. sec " Id. at 1380 (footnote omitted). But a careful reading of this case indicates that the court admitted the contents of the recordings into evidence not because the victims consented to their admission, but rather, because they consented to the recording itself. Id. The statute does not expressly provide a "consent to use" exception to section 2511(1)(d) (1508, emphasis supplied). The Florida wiretap statute does not provide a "consent to use" exception. 24

30 POINT IV - THE REFEREE S REFERENCE TO A FINDING OF THE COURT IN THE MATRIMONIAL PROCEEDING FORMS NO BASIS TO SUPPORT A CONCLUSION THAT RESPONDENT DID NOT VIOLATE FLORIDA S WIRETAP STATUTE AND THE RULES VIOLATIONS CHARGED BY THE BAR. The referee reported: 7. It is noted that in denying the Wife s motion to recuse the Respondent, during the dissolution proceeding Circuit Court Judge Roger Colton stated that "the court cannot find with certainty that Mr. Weissman or other lawyers in his law firm committed any acts of impropriety or any appearance thereof". Again, it is difficult to determine from his report what weight the referee attributed to the referenced finding in the matrimonial proceeding. It is respectfully submitted that such finding is entitled to no weight. The bar was not a party to the proceeding. The issues were entirely different. Judge Colton, in the order from which the referee quoted, defined the issues before him, as follows: 1. Whether Mr. Joel Weissman...ought to be disqualified from further representing the Former Husband... on the ground that such attorneys may have gained an unfair advantage in this case as a result of having listened to or otherwise having access to, tape recordings... between the Former Wife and other persons that had been unlawfully intercepted. 2. Whether Mr. Joel Weissman... ought to be disqualified from further representing the Former Husband... on the ground that Joel Weissman is a material fact witness Whether Mr. Joel Weissman... ought to be disqualified from further representing the Former Husband in this proceeding in order to avoid any appearance of impropriety that might arise from... access to tape recordings of unlawfully intercepted wire communications

31 Finally, the burden of proof referenced by the court in the recusal matter ["certainty"] is unrecognizable to the bar but suggests something that transcends clear and convincing, or, for that matter, beyond reasonable doubt. POINT V - THE REFEREE S REJECTION OF THE UNCONTROVERTED EVIDENCE CONSISTING OF OPPOSING COUNSEL S STATEMENT TO RESPONDENT THAT THE TAPES PLAYED AT THE JUNE 6, 1996, DEPOSITION WERE OBTAINED BY ILLEGAL MEANS AND RESPONDENT S IMMEDIATE AND DIRECT ACKNOWLEDGMENT THEREOF CONSTITUTES ERROR. Unlike the Holden tape which the respondent had obviously listened to prior to his use thereof at the July 3, 1996, deposition, respondent insists that he had, prior to his playing thereof, no idea, whatever, of what the two tapes he played at the June 6, 1996, Susannah Rubin deposition contained; that despite having received such tapes mysteriously and despite the fact that the envelope containing such tapes contained a recitation that the tapes "may be useful in the Rubin case", he did nothing, whatever, to ascertain the contents thereof [Tab F attached to the bar s motion for summary judgment]. Even after playing the two tapes at the Rubin deposition and hearing corroboration of the sordid details regarding bite marks and "hickies" which details parroted his prior cross examination of Mrs. Rubin, respondent could find no reason to conclude that the oral communications captured thereby constituted intercepts in violation of the wiretap statute because Mrs. Rubin denied that she was a participant in the taped conversations [See page 4 of respondent s motion for summary 26

32 judgment]. Such position is simply incredible. Firstly, respondent s client identified the tapes to respondent as being conversations involving Mrs. Rubin [Ibid, page 4]. Respondent s partner who attended the deposition recognized Mrs. Rubin s voice as did the court reporter [Tab M attached to the bar s motion for summary judgment]. The conversation contained explicit details matching exactly the details of respondent s cross examination [Pages 6 through 9, bar s motion for summary judgment]. Even assuming that respondent did not listen to the two tapes played at the Rubin deposition notwithstanding that he had listened to the Holden tape, it would seem impossible that respondent would not have immediately recognized that the two tapes that he played, containing explicit details of Mrs. Rubin s sexual exploits with her lover, were not intercepted oral communications in violation of Florida s wiretap statute. That playing of the tapes constituted a reason for respondent to know or at least have reason to know of the illegal intercepts. Once respondent played the two tapes at the Rubin deposition and adversary counsel had an opportunity to hear the contents, the following transpired according to the court reporter in attendance: Mr. Weissman stopped questioning Ms. Rubin and asked Ms. Rubin to listen to the tape to see if she recognized the voices. The entire tape was played. There was nothing on this tape but what I transcribed. I recall listening to the tape myself and clearly recognizing Ms. 27

33 Rubin s voice, which she denied the same. A second tape was played and I transcribed the entire tape. Again, Ms. Rubin s denied it was her voice, but I clearly recognized it as her voice. A recess was taken because Mr. Marlowe wanted to discuss in private Ms. Rubin s testimony as to whether that was her voice on the tape. [Tab N attached to the bar s motion for summary judgment]. Respondent then determined to replay the two tapes. Having heard the tapes and having had the opportunity to discuss the contents thereof with his client, adversary counsel objected to the further playing thereof stating: I don t know where the tape came from. We d object to the introduction of the tape. Clearly the tape was obtained by illegal means...[tab G attached to the bar s motion for summary judgment]. Respondent responded by stating: Just as Mr. Marlowe said, the tape may be illegal and that it could potentially be given to the State Attorney s Office...[Ibid, Tab G]. Respondent then replayed the tapes. Even if it were concluded that respondent did not have reason to know that the tapes were intercepted in violation of the statute, taking into consideration the circumstances surrounding his receipt thereof and his actual hearing of the contents thereof, he certainly knew or had reason to know that the tapes constituted illegal intercepts in violation of the statute when adversary counsel expressly told him that the tapes were obtained through illegal means, a proposition with which the respondent agreed. What more information could respondent possibly 28

34 have had? From the referee s statement, he apparently disregarded the direct information imparted to respondent: "We d object to the introduction of the tape. Clearly the tape was obtained by illegal means..." as not constituting direct evidence that respondent thereby was on notice of the illegality of the tapes and thereby knew or should have known that the oral communications were intercepted in violation of the statute. Even respondent s acknowledgment that "just as Mr. Marlowe said, the tape may be illegal and that it could potentially be given to the State Attorney s office", in the referee s view is but a "mere statement" not rising to the level of clear and convincing evidence. The bar can only wonder at how often, in a civil, criminal or bar discipline milieu, an accused may be informed that a gun is loaded, agree that such may be the case, but then be permitted to aim at someone and pull the trigger with impunity. POINT VI - THE REFEREE PAID NO HEED TO THE RULE OF WILLFUL BLINDNESS, THE APPLICATION OF WHICH THE BAR RESPECTFULLY SUBMITS ESTABLISHES THAT RESPONDENT KNEW OF HIS VIOLATIONS OF FLORIDA S WIRETAP STATUTE. Respondent urges that he never, prior to his use of the subject tapes at the June 6, 1999, Susannah Rubin deposition, knew the contents thereof and did not know, prior to his use of the subject tape at the July 3, 1996, Gary Holden deposition, the 29

35 contents of that tape. Respondent asserts that as a result of not knowing what the tapes contained until he played them, he thereby could not have known nor could he have had reason to know that the tapes were illegally intercepted oral communications in violation of Florida s wiretap statute. That position is untenable for a variety of reasons. Firstly, respondent knew that he had tapes pertaining to the Rubin v. Rubin matter. The envelope in which the tapes mysteriously arrived told him that. Secondly, he was expressly informed by counsel at the Rubin deposition that the tapes were obtained by illegal means which respondent immediately agreed might be the case. Thereupon, although specifically informed of the illegal nature thereof, respondent deliberately chose to replay the tapes. Despite his protestations to the contrary, respondent obviously knew, in advance of the Holden deposition, that one of the tapes in his possession contained a conversation between Mr. Holden and Mrs. Rubin. He expressly stated, during the deposition of Mrs. Rubin, that he had a tape of a conversation between her and Mr. Holden, recited a brief synopsis of the contents thereof and that he intended to play such tape. He was informed at the Holden deposition that the tape he was about to play was illegally intercepted and agreed that the tape might well be an illegally intercepted tape. He played it anyway. There is an equally compelling reason to conclude that respondent knew or at least had reason to know that the tapes he used contained conversations intercepted 30

36 in violation of the Florida wiretap statute. It is respectfully submitted that the doctrine of "willful blindness" is applicable to this case. The rule of willful blindness is that if a party has his suspicion aroused but then deliberately omits to make further inquiries because he wishes to remain in ignorance, he is deemed to have knowledge. United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct (1976); United States v. Aleman, 728 F.2d 492 (11th Cir. 1984). The same rule has been adopted in Florida. See Wetzler v. State, 455 So.2d 511 (Fla. 1st DCA 1984); Andrews v. State, 536 So.2d 1108 (Fla. 4th DCA 1988) [See tab Q attached to the bar s response to respondent s motion for summary judgment]. A trier of fact can certainly conclude that respondent s suspicions had to have been aroused upon receiving a package containing tape recordings which were specified as being important to his client s case. The bar would urge that a trier of fact must conclude that respondent s suspicions had to have been aroused when he was expressly advised that the tapes contained illegally intercepted communications. Upon being advised of that fact, respondent assiduously avoided any and all attempts to inquire regarding the tapes. In United States v. Wuliger, 981 F.2d 1497 (Ohio 6th CCA 1992) cited by respondent, a case involving the prosecution of an attorney under the Federal wiretap statute for the use and disclosure of illegally intercepted wire communications during depositions taken in a civil matrimonial case, the trial court had included in its charge 31