IN THE SUPREME COURT OF FLORIDA (Before a Referee) v. Supreme Court Case No. SC BENJAMIN RAUL ALVAREZ, REPORT OF REFEREE

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, The Florida Bar File Nos ,306(11P) and ,808 (11P) v. Supreme Court Case No. SC BENJAMIN RAUL ALVAREZ, Respondent. / 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 3-7.6(b) of the Rules Regulating The Florida Bar, review of a Stipulation as to Probable Cause, Conditional Guilty Plea and Consent Judgment for Discipline was undertaken. All of the pleadings, notices, motions, orders, and exhibits are forwarded with this report and the foregoing constitute the record in this case. The following attorneys appeared as counsel for the parties: For The Florida Bar: William Mulligan The Florida Bar 444 Brickell Avenue Suite M-100 Miami, FL 33131

2 For Respondent: Louis Thaler, Esq. 2 Alhambra Plaza Suite PH II-C Coral Gables, Florida and Larry Robert Handfield, Esq Biscayne Blvd. Suite 1250 Miami, Florida II. FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT OF WHICH RESPONDENT IS CHARGED: Based upon the Conditional Consent Judgment, my findings of fact are as follows: A. As to The Florida Bar file no ,306(11P), Respondent admits that the following facts are true and accurate and stipulates: 1. Respondent was retained by Manuel Chamizo ( Chamizo ) to assist him in exercising an assignment he purchased from another party to buy property from Samuel Forman ( Forman ). 2. Chamizo was required as part of the assignment to return the assignor s original $10,000 deposit and to deposit $10,000 into Respondent s law firm trust account. 3. On or about July 25, 2003, Respondent, on behalf of Chamizo, sent a letter to the assignor s attorney confirming receipt of his client s $10,000 check and 2

3 stating that the check would be deposited into his trust account if it had not already been deposited. 4. Respondent contends, that a short time later, Chamizo contacted Forman and informed him that he was ready, willing, and able to close on the property inclusive of the encumbrances therewith and that Forman refused to sell Chamizo the property. 5. On August 7, 2003, Respondent filed a lawsuit on behalf of Chamizo against Forman seeking specific performance of the contract, among other things. 6. In this complaint and an amended complaint, Respondent alleged on behalf of Chamizo that the $10,000 had already been deposited into his firm s trust account. 7. On or about January 22, 2004, Lillian Avellan ( Avellan ), Forman s attorney, served Respondent with a request for production on behalf of her client requesting, among other things, a copy of the cancelled $10,000 check that had been deposited into Respondent s firm s trust account. Additionally, Avellan sent Respondent numerous facsimiles requesting confirmation that the $10, was being held in said trust account. 8. Respondent failed to produce a copy of the check. 3

4 9. On April 20, 2004, an agreed order was entered whereby Respondent agreed to produce a copy of the cancelled check by 5:00 PM the next day. 10. The following day, Respondent faxed a copy of the face of the newly found check, which did not indicate that the check had been deposited. 11. On or about April 27, 2004, a status conference was held and the judge inquired of Respondent as to whether the check had been deposited, and if so, which bank it had been deposited in. 12. At this April 27, 2004 hearing, Respondent informed the judge that he believed the check had been deposited and that it had been deposited into one of the banks that we hold money in. 13. On or about August 11, 2004, during a hearing on a motion for summary judgment filed by Forman, Respondent admitted that the $10,000 check had never been deposited into his firm s trust account. 14. At the conclusion of the hearing, the judge granted the motion for summary judgment against Chamizo. 15. Since the filing of the Bar s complaint, Forman passed away. 16. In mitigation, Respondent contends that the following should be considered: i. Due to his negligent and unintentional actions, the Chamizo 4

5 check was not deposited and produced as it had been misplaced. ii. Chamizo has no complaint against him for the handling of the check or the civil matter. iii. The Chamizo check would have cleared Chamizo s bank if it had been deposited in normal course and not been misplaced. iv. During the time period involved in the handling of the Chamizo check, a non-lawyer employed as a bookkeeper with Respondent s firm, had been lax in his duties to make deposits for which, when discovered, he was terminated. v. During the time period when the Chamizo check became an issue in the civil litigation (acutely in the month of April 2004), Respondent had a serious medical condition requiring surgery (at the beginning of April 2004) and other attorneys in his firm were also handling the file. vi. Respondent is remorseful for his mishandling of the Chamizo check and the controversy it caused in the civil litigation. vii. The above matter was set for trial before Referee William Johnson on August 24, At that trial, Respondent intended to call as character witnesses the following judges before whom he has practiced and who indicated they were willing to vouch for his abilities and ethics: the Honorable Juan Ramirez of the Third District Court of Appeal, the Honorable Mario Goderich, retired from the Third 5

6 District Court of Appeal, the Honorable Ivan Fernandez of the 11th Judicial Circuit, the Honorable Peter Lopez of the 11th Judicial Circuit, and the Honorable Daryl Trawick of the 11th Judicial Circuit. viii. Respondent was not charged with the violation of any trust accounting rules due to his involvement in this matter. ix. Respondent has no prior disciplinary history. 17. By reason of the foregoing facts, Respondent admits that he has violated rule 4-3.4(a) (a lawyer shall not obstruct another party s access to evidence...) of the Rules of Professional Conduct. B. As to The Florida Bar file no ,808(11P), Respondent waived his right to consideration of this matter by a grievance committee as provided for by Rule of the Rules of Discipline. Respondent has stipulated that probable cause exists for further proceedings and admits that the following facts are true and accurate: 1. Respondent and his law firm represented Jasper Eanes ( Eanes ) in a civil matter, filing suit in Miami-Dade Circuit Court on May 26, 2006, Jasper Eanes v. Bank of Florida, Case No CA Respondent contends that the case proceeded through approximately April 2007, wherein as a result of a fee dispute between Eanes and Respondent's firm, Respondent filed a Motion to Withdraw on or about April 17,

7 3. Respondent contends that although the Motion to Withdraw was set for hearing, no order allowing withdrawal was ever entered by the Court. 4. Eanes subsequently hired a new attorney who discovered that the subject lawsuit had been dismissed by Judge Sarah Zabel on May 15, 2007, pursuant to an order dated March 27, The March 27, 2007, order granted Defendant s Motion Pursuant to Rule for Failure to Make Discovery, for Sanctions and/or to Compel the Deposition of Plaintiff. 6. The March 27, 2007, order further provided that the complaint would be dismissed if Eanes failed to comply with the order. 7. On or about April 27, 2007, the defendant filed a Motion to Dismiss Complaint Pursuant to this Court s Order of March 27, Because Eanes failed to comply with the March 27, 2007, order, said motion to dismiss was granted on May 15, Respondent failed to keep Eanes adequately informed as to the status of the case. 10. While Eanes was unable to refile his case in state court, he was able to file his case in federal court and he ultimately did obtain a settlement. 11. Respondent contends that he did provide useful services on behalf 7

8 of Eanes. 12. By reason of the foregoing facts, Respondent admits that he has violated rules (Diligence); (Communication); and (Declining or Terminating Representation) of the Rules of Professional Conduct. III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY OF MISCONDUCT JUSTIFYING DISCIPLINARY MEASURES: The undersigned recommends that Respondent s Conditional Consent Judgment be approved by the Supreme Court of Florida as a final resolution of all matters referenced herein. Accordingly, based upon the Conditional Consent Judgment, it is recommended that Respondent be found guilty of violating the disciplinary rules as set forth above. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: The undersigned recommends that Respondent s Conditional Consent Judgment be approved by the Supreme Court of Florida. Accordingly, the following disciplinary measures are recommended: A. Public Reprimand to be administered by publication in the Southern Reporter. B. A probationary period of six (6) months with the following special conditions: 8

9 1. Successful completion of Ethics School and the Professionalism Workshop; and 2. Reimbursement of $22, in attorney fees to Jasper Eanes regarding The Florida Bar file no ,808(11P). V. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: Age: 39 Date Admitted to The Florida Bar: September 21, 1999 Prior disciplinary record: None VI. STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED: I find that the following costs were incurred by The Florida Bar in this proceeding: Administrative fee Rule 3-7.6(o)(1)(I)...$ 1, Staff Investigator costs.$ Court reporter costs for attendance at depositions of Respondent, Roniel Rodriguez, IV, and Albert Guzman..$ Court reporter costs for copy of deposition transcript for Lillian Avellan..$ Total $ 1,

10 It is recommended that costs in the amount of $1, be assessed against Respondent. It is further recommended that execution issue with interest at the prevailing statutory rate to accrue on all costs not paid within 30 days of entry of the Supreme Court's final order. Dated this day of Copies furnished to: HONORABLE WILLIAM JOHNSON Referee Louis Thaler, Esq., Attorney for the Respondent Larry Robert Handfield, Esq., Co-Counsel for the Respondent William Mulligan, Bar Counsel Kenneth L. Marvin, Staff Counsel 10