IN THE SUPREME COURT OF FLORIDA (Before a Referee) The Florida Bar File No ,165(OSC) REPORT OF REFEREE

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Petitioner, vs. MITCHELL JAY ZIDEL, Supreme Court Case No. SC The Florida Bar File No ,165(OSC) 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 contempt proceedings as provided for by Rule 3-7.6(a) of the Rules Regulating The Florida Bar, trial of this cause 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. During the course of these proceedings, a status conference was held on February 18, The final hearing was held on April 12, 2011, and May 6, The following attorneys appeared as counsel for the parties: On Behalf of The Florida Bar: Thomas Allen Kroeger The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida 33131

2 On Behalf of the Respondent: Gary Rosenburg 1555 North Park Drive, Suite 103 Weston, Florida II. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. Jurisdictional Statement: Respondent is and was at all times material herein a member of The Florida Bar, albeit suspended pursuant to a Supreme Court Order dated February 22, 2010, and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. B. Narrative Summary of Case: 1. On February 22, 2010, in Supreme Court Case No. SC , the Supreme Court entered an order suspending Respondent for one (1) year and ordered Respondent to pay restitution in the amount of $1, to Marie Garcia, and in the amount of $11, to Elizabeth Warren, within thirty (30) days of the Court s Order. 2. On February 25, 2010, The Florida Bar sent Respondent a letter advising him of the conditions of the order, including his obligation to comply with the provisions of Rule 3-5.1(g) of the Rules Regulating The Florida Bar which required Respondent, within thirty (30) days of service of the order, to furnish a sworn affidavit 2

3 listing the names and addresses of all persons and entities that have been provided with copies of the order. 3. On March 25, 2010, The Florida Bar sent Respondent a certified letter advising him of his failure to provide proof of payment and receipt of restitution to Marie Garcia and Elizabeth Warren, pursuant to the terms of the Court s Order. 4. On June 8, 2010, The Florida Bar filed a Petition for Contempt and Order to Show Cause against Respondent for his failure to pay restitution in the amount of $1, to Marie Garcia, and in the amount of $11, to Elizabeth Warren, and his failure to submit a sworn affidavit pursuant to Rule 3-5.1(g) of The Rules Regulation The Florida Bar. 5. At the final hearing, no witness testimony was presented. The Florida Bar introduced a copy of the order in Supreme Court Case No. SC , as well as the affidavit of Adam Stetson, a paralegal in The Florida Bar s Lawyer Regulation Department, which stated that, as of March 25, 2011, Respondent had failed to pay restitution to Marie Garcia and Elizabeth Warren, and had failed to submit a sworn affidavit pursuant to Rule 3-5.1(g). Copies of The Florida Bar s letters to Respondent, dated February 25, 2010, and March 25, 2010, were attached. 6. Respondent introduced the affidavit of Melyssa Munoz, his former secretary, which stated that she had mailed an affidavit complying with Rule 3-5.1(g) 3

4 on or about March 24, A copy of Respondent s affidavit, purporting to comply with Rule 3-5.1(g), was attached. 1 III. RECOMMENDATION AS TO GUILT: Based on the foregoing, I find by clear and convincing evidence that Respondent is in contempt of the Supreme Court s order dated February 22, 2010, in Supreme Court Case No. SC , in that Respondent has failed to pay restitution in the amount of $1, to Marie Garcia, and in the amount of $11, to Elizabeth Warren, as required by the Court s Order. Respondent presented neither evidence regarding his present financial inability to pay, nor any other evidence in defense of his failure to pay restitution. Accordingly, I find Respondent s failure to pay restitution, together with the absence of any evidence regarding his present financial inability to pay, sufficient to support a finding that Respondent has intentionally violated the Supreme Court s Order of February 22, However, I do not find that The Florida Bar has met its burden of proving by clear and convincing evidence that Respondent failed to file a sworn affidavit pursuant to Rule 3-5.1(g) of the Rules Regulating The Florida Bar. The affidavit of Melyssa Munoz, Respondent s former secretary, indicates that Respondent did execute an 1 Attached to Melyssa Munoz s affidavit was a copy of a facsimile of Respondent s Rule 3-5.1(g) affidavit which indicated that he had no client matters pending at the time of the Supreme Court s Order of suspension on February 22,

5 affidavit that was responsive to Rule 3-5.1(g), and that she placed the same in the mail on March 24, Accordingly, I do not find that Respondent has intentionally violated the Supreme Court s Order of February 22, 2010 as it relates to the sworn affidavit requirement of Rule 3-5.1(g) of the Rules Regulating The Florida Bar. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: Based on the foregoing, I hereby recommend that Respondent receive a sixty (60) day suspension from the practice of law. I further recommend that the sixty (60) day suspension take effect from the date of pronouncement, May 6, 2011, however it is noted that this is merely a recommendation and that any suspension is not effective until issuance of the Supreme Court s Order. V. PERSONAL HISTORY, PAST DISCIPLINARY RECORD, AGGRAVATING FACTORS, AND MITIGATING FACTORS: Prior to recommending discipline pursuant to Rule 3-7.6(m)(1)(C) of the Rules Regulating The Florida Bar, I considered the following: A. Personal History of the Respondent: Age: 51 Date Admitted to Bar: April 22, 1994 Prior disciplinary record: Respondent received a one (1) year suspension by Order of the Supreme Court of Florida dated February 22, 2010, in Supreme Court 5

6 Case No. SC , The Florida Bar File Nos ,888(11I) and ,356(11I); and Respondent received a thirty (30) days suspension by Order of the Supreme Court of Florida dated December 15, 2010 in Supreme Court Case No. SC10-248, The Florida Bar File No ,961(11I). C. Aggravating Factors: (none) D. Mitigating Factors: (none) Dated this day of, HONORABLE ERIC HENDON, Referee North Dade Justice Center Biscayne Boulevard, Room 217 Miami, Florida Copies to: Thomas A. Kroeger, Bar Counsel Gary I. Rosenberg, Attorney for the Respondent Kenneth L. Marvin, Staff Counsel 6