IN THE SUPREME COURT OF FLORIDA (Before a Referee) REPORT OF REFEREE. I. SUMMARY OF PROCEEDINGS: Pursuant to the undersigned being duly

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, v. Complainant, ALBERTO JOSE XIQUES, Respondent. / Supreme Court Case No. SC The Florida Bar Case No ,019(11H) REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: Pursuant to the undersigned being duly appointed as Referee for the Supreme Court of Florida to conduct disciplinary proceedings as provided for by Rule of the Rules Regulating The Florida Bar, review of a consent judgment for discipline was undertaken. All of the pleadings, notices, motions, orders, transcripts, and exhibits are forwarded with this report and the foregoing constitutes the record in this case. The following attorneys appeared as counsel for the parties: On behalf of The Florida Bar: Barnaby L. Min The Florida Bar 444 Brickell Avenue Suite M100 Miami, Florida Tel: (305) On behalf of the Respondent: Paul Alfred Remillard 1

2 3201 Shamrock Steet S, Suite 102 Tallahassee, Florida Tel: (850) The Respondent submitted an Unconditional Guilty Plea and Consent Judgment for Discipline (hereinafter, Consent Judgment ) which provided for a three year suspension from the practice of law, nunc pro tunc to July 2, The position of The Florida Bar, as approved by a Designated Reviewer of the Eleventh Judicial Circuit, is that the Respondent s plea be accepted. II. FINDINGS OF FACT: In his consent judgment, the Respondent admits certain factual matters, which I hereby accept and adopt as my findings of fact in this cause: A. On or about December 11, 2006, the Respondent issued a check in the amount of $55, from his operating account to the Clerk of Circuit Court to pay for the Mortgage Documents and Intangible Tax on a Mortgage and Security Agreement in the sale of a property identified as 2940 North Bay Road, Miami, Florida This check was presented twice and both times was dishonored due to insufficient funds. B. Such a check should have come from the Respondent s trust account. C. Additionally, on December 11, 2006, the Respondent issued another check in the amount of $8, from his operating account to the Clerk of Circuit Court. This check represented the State tax/stamps of the deed from the transaction described above. D. Although there is no evidence to indicate an intentional act to deceive the 2

3 local property taxing authority, the tax on the sale of the property should have been $81, E. Although the allegations hereafter mentioned were dismissed before an actual formal reply was filed, Gibraltar Private Bank and Trust Company filed two (2) civil complaints against the Respondent. F. One of the complaints of Gibraltar Bank relates to a file identified as Leah Klein as Personal Representative of the Estate of Louella Shapiro (Seller) and Irving Padron (Buyer). The settlement date for this transaction was February 15, 2006 and the existing mortgages were $402, for the first mortgage and $316, for the second mortgage. G. The second mortgage in the amount of $316, was paid on May 3, 2006, and the first mortgage in the amount of $427, (originally $402,352.21) was paid on October 30, The payments, however, were due at or near the date of the closing which was February 15, Additionally, on October 16, 2006, the balance in the Respondent s trust account was $398,463.07, which at the time would indicate a shortage of $32, The shortage was covered by the Respondent s personal funds. H. The other complaint of Gibraltar Bank relates to a file identified as the Art of Living USA, LC (Carlos Justo refinance). The settlement date for this transaction was June 19, 2006 and the HUD-1 statement reflected that no mortgages were to be satisfied. I. The Art of Living, however, had two (2) outstanding mortgages. According 3

4 to the agreement, the Art of Living should have promptly discharged any lien which had priority over the Security Instrument of Gibraltar. In addition, the Respondent failed to record the Gibraltar mortgage in the Public Records of Miami-Dade County, Florida. J. On or about August 29, 2006, one of the mortgages in the amount of $368, was paid and the recording of the mortgage was done on October 16, Both the payment and recording of the mortgage were filed untimely. K. Subsequent to The Florida Bar s investigation, the Respondent has repaid all outstanding amounts from personal funds. Further, the Respondent has filed all documents and mortgages. Finally, there has been no evidence discovered showing that the Respondent has personally benefited from any of the misconduct involved. L. I also find that the mitigating factors described in the consent judgment are applicable in this matter. III. RECOMMENDATION AS TO GUILT: Based upon the Respondent s admissions, I recommend that the Respondent be found guilty of violating Rules (Misconduct and Minor Misconduct) and (Criminal Misconduct) of the Rules of Discipline; Rules (Diligence) and 4-8.4(a) (A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another) of the Rules of Professional Conduct; and Rules 5-1.1(a) (Nature of money or Property Entrusted to Attorney), 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose), 5-1.1(e) (Notice of Receipt of Trust 4

5 Funds; Delivery; Accounting), 5-1.2(b) (Minimum Trust Accounting Records), 5-1.2(c) (Minimum Trust Accounting Procedures), and 5-1.2(d) (Record Retention) of the Rules Regulating Trust Accounts. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: Having reviewed the record of these proceedings, I find that the Respondent s plea and the recommendation of The Florida Bar as to terms of discipline are both fair to the Respondent and in the best interest of the public. Accordingly, the Respondent s Unconditional Guilty Plea and Consent Judgment for Discipline and the term of discipline recommended by The Florida Bar are accepted and hereby adopted as the recommendation of this Referee in this matter. V. STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED: I find the following costs were reasonably incurred by The Florida Bar in these proceedings and should be assessed against the Respondent: Administrative fee $1, Staff Auditor s Costs 2, Staff Investigator's Costs Copy Costs Bar Counsel's Travel Costs 7.22 Court Reporter at Status Conference

6 INTERIM TOTAL $4, I recommend that the foregoing costs be assessed against the Respondent. Taxation of costs of this disciplinary proceeding should be assessed against the Respondent, with execution to issue plus interest at the prevailing statutory rate to accrue on all costs not paid within thirty (30) days of entry of the Supreme Court's final order, unless the time for payment is extended by the Board of Governors of The Florida Bar. VI. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: Age: 38 Date Admitted to Bar: September 24, 1992 Prior Disciplinary Record: 1. The Florida Bar v. Xiques, Supreme Court Case No. SC Emergency suspension. DATED this day of, Copies furnished to: Barnaby L. Min, Bar Counsel Paul A. Remillard, Attorney for the Respondent Kenneth L. Marvin, Director of Lawyer Regulation DOUGLAS J. CHUMBLEY, Referee Juvenile Justice Center 3300 Northwest 27th Avenue, Room 204 Miami, Florida

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