IN THE SUPREME COURT OF FLORIDA (Before a Referee) No. SC Complainant, The Florida Bar File v. No ,295(11L) REPORT OF REFEREE

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Supreme Court Case No. SC Complainant, The Florida Bar File v. No ,295(11L) ALEXIS SUMMER MOORE, Respondent. / I. SUMMARY OF PROCEEDINGS: REPORT OF REFEREE 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, the following proceedings occurred: On January 19, 2007, The Florida Bar filed its Complaint and First Request for Admissions in these proceedings. The matters were deemed admitted pursuant to this referee s March 13, 2007 order granting The Florida Bar s Motion for Order Deeming Matters Admitted. Furthermore, Respondent was found guilty of violating specific Rules Regulating The Florida Bar, referenced in this report of referee, by virtue of this referee s March 13, 2007 order granting The Florida Bar s Motion for Entry of Default Judgment, as well as the aforementioned order granting The Florida Bar s Motion for Order Deeming Matters Admitted. On February 15, 2007, The Florida Bar served its First Set of Interrogatories and

2 Request for Production of Documents on Respondent. As of April 2, 2007, Respondent had not filed responses to either the Interrogatories or Request for Production; accordingly, The Florida Bar filed a Motion to Compel. As a result of Respondent s failure to file responses to said discovery, this referee entered an order on April 3, 2007 precluding Respondent from presenting any witnesses or any documentary evidence at final hearing in this cause. It is noted that Respondent also failed to appear at a status conference on March 8, On April 17, 2007, a final hearing was held in this matter. Respondent was properly noticed. Again, Respondent did not appear. All of the pleadings, responses thereto, notices, orders, and exhibits, along with this report, constitute the record in this case and are forwarded to the Supreme Court of Florida. The following attorneys appeared as counsel for the parties: On behalf of The Florida Bar: On behalf of the Respondent: Jennifer R. Falcone Moore No appearance II. FINDINGS OF FACT: A. Jurisdictional Statement: The Respondent is and was at all times material herein, a member of The Florida Bar, albeit emergency suspended pursuant to Florida Supreme Court Order dated November 28, 2006, and subject to the jurisdiction and disciplinary rules of the Supreme 2

3 Court of Florida. B. Narrative Summary of Case: Respondent represented Juan B. Torres in the dissolution of his marriage. On November 29, 2005, the trial court entered an order in case number FC 12, Nora P. Cardona vs. Juan B. Torres, granting Torres motion to deposit in escrow the proceeds from the sale of the marital home, and designating Respondent as the escrow agent for all monies pertaining to the sale of the home. Thereafter, a check in the amount of $42, was given to Respondent to hold in escrow. This amount represents the proceeds from the sale of the property of Nora P. Cardona and Juan B. Torres located on 2320 NW 152 Terrace, Miami, Florida. Subsequently, on August 25, 2006, a Report of General Magistrate/ Hearing Officer and Notice of Filing was entered, in re: The Marriage of Nora P. Cardona, and Juan B. Torres. Paragraph 10 of that report states that Respondent failed to appear for the hearing before the General Magistrate/Hearing Officer on August 6, 2006, but holds approximately $42, in her trust account for the parties. Additionally, paragraph 17 of the same report directs Alexis Moore, Attorney at Law, to immediately transfer the $42,429.01, held in trust to the Trust Account of Kurt R. Klaus, Jr. Attorney at Law. Respondent did not transfer the funds as directed in the Report of General Magistrate/Hearing Officer. Thereafter, a complaint was filed against Respondent by Barbara Gutierrez, 3

4 on behalf of Klear Title Insurance Group, who averred that Respondent was holding $42, in trust, and she was not able to locate Respondent. She further stated that she contacted Attorney Consumer Assistance Program (hereinafter ACAP ) and they were also unable to locate Respondent. The Florida Bar sent inquiries to Respondent regarding this complaint. Respondent failed to respond to The Florida Bar inquiries regarding the complaint of Barbara Gutierrez. The Bar s auditor contacted Ms. Gutierrez and obtained a copy of the $42, check. A subpoena was then issued to Respondent s banking institution and on or about November 9, 2006, the auditor received copies of Respondent s bank records. The auditor conducted a detailed review of the bank account identified as Alexis Summer Moore, Attorney at Law, IOTA Trust Account, maintained at City National Bank account # , for the period of January 27, 2003, date of inception of the account, to October 31, The auditor s review of the bank records revealed that there is clear, convincing and undeniable evidence, that Respondent misappropriated the $42, entrusted to her, except for $ which was left in the trust account. On January 27, 2006, Respondent negotiated the $42, check, received $5, in cash and deposited $37, into her trust account at City National Bank account # In addition, on January 30, 2006, Respondent issued a check in the amount of $12, payable to herself and identified the disbursement as legal services rendered 4

5 Torres case. On March 6, 2006, Respondent issued another check in the amount of $10, payable to herself and identified the disbursement as Legal Services, leaving a balance in the trust account of $15, On April 12, 2006, Respondent issued another check in the amount of $3, payable to herself and identified the disbursement as Legal Services - Torres, leaving a balance in the trust account of $12, On May 17, 2006, Respondent issued another check in the amount of $12, payable to herself and identified the disbursement as Torres legal services, leaving a balance in the trust account of $ III. RECOMMENDATION AS TO GUILT: Based on the foregoing, I recommend that Respondent be found guilty of violating the following Rules Regulating The Florida Bar: Rules 4-3.4(c) (knowingly disobey an obligation under the rules of a tribunal), 4-8.4(c) (misconduct involving dishonesty, fraud, deceit or misrepresentation), and 4-8.4(g) (fail to respond to official inquiry by bar counsel) of the Rules of Professional Conduct; and Rule 5-1.1(b) (misappropriation of trust account funds) of the Rules Regulating Trust Accounts. IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS: I considered the following Florida Standard prior to recommending discipline: 4.11 Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury. V. CASE LAW: 5

6 I considered the following case law prior to recommending discipline: The Florida Bar v. Tillman, 682 So.2d 542 (Fla. 1996); The Florida Bar v. Shanzer, 572 So.2d 1382 (Fla. 1991); and The Florida Bar v. Shuminer, 567 So.2d 430 (Fla. 1990); VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that she be disciplined by: A. Permanent Disbarment. B. Payment of The Florida Bar s costs in these proceedings. VII. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: following: Prior to recommending discipline pursuant to Rule 3-7.6(k)(l), I considered the A. Personal History of Respondent: Age: 43 Date admitted to The Florida Bar: September 3, 1998 Prior Discipline: In Supreme Court Case No. SC , The Florida Bar File No ,498(11L-MES), Respondent was emergency suspended as a result of allegations of misappropriation of funds in the instant case. In Supreme Court Case No. SC , The Florida Bar File No ,466(11L), Respondent was suspended for a period of one year pursuant to Florida Supreme Court Order dated March 22, B. Factors Considered in Aggravation: 9.22(a) (b) (c) - prior disciplinary offenses; dishonest or selfish motive; a pattern of misconduct; 6

7 9.22(d) (e) (g) (h) (j) - multiple offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; refusal to acknowledge wrongful nature of conduct; vulnerability of victim; indifference to making restitution. C. Factors Considered in Mitigation: This referee did not find any mitigating factors that could be applied in the instant case. VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED: I find the following costs were reasonably incurred by The Florida Bar: Administrative costs...$ Court reporter attendance fee for April 17, 2007 final hearing...$ Court reporter attendance fee for March 8, 2007 status conference...$ Bank records costs.$ Auditor s costs...$ Staff investigator s costs... $ T O T A L $ 2, It is recommended that such costs be charged to Respondent and that interest at 7

8 the statutory rate shall accrue and be payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar. Dated this 17_ day of APRIL, Copies to: Jennifer R. Falcone Moore, Bar Counsel Alexis Summer Moore, Respondent Kenneth L. Marvin, Staff Counsel CELESTE H. MUIR, Referee Circuit Court Judge Dade County Courthouse 73 West Flagler Street Room 308 Miami, Florida