IN THE SUPREME COURT OF FLORIDA (Before a Grievance Committee)

Transcription

1 Filing # E-Filed 05/04/ :24:27 PM IN THE SUPREME COURT OF FLORIDA (Before a Grievance Committee) THE FLORIDA BAR, Complainant, The Florida Bar File No ,643 (12C) v. ADAM RUSSELL MILLER, RECEIVED, 05/04/ :28:26 PM, Clerk, Supreme Court Respondent. / GRIEVANCE COMMITTEE FINDING OF NON-COMPLIANCE AND FAILURE TO RESPOND TO OFFICIAL BAR INQUIRY AND CONTEMPT On April 11, 2017, pursuant to Rule (f), Rules Regulating The Florida Bar, the Twelfth Judicial Circuit Grievance Committee C considered whether to issue a Finding of Non-Compliance and Failure to Respond to Official Bar Inquiry and Finding of Contempt and made the following findings: 1. On January 18, 2017, Respondent was personally served with a Subpoena Duces Tecum requiring him to produce copies of any and all documents relating to monies received and or paid out to four clients in connection with a Notice of Insufficient Funds for Respondent s Capital Bank IOLTA Account. A copy of the January 18, 2017 Subpoena Duces Tecum is attached as Exhibit A. 2. The January 18, 2017 Subpoena Duces Tecum required Respondent produce four client files. Respondent brought these four client s original files to Respondent s sworn statement on January 26, Respondent did not bring EXHIBIT 1

2 copies of these files to his sworn statement. At the close of Respondent s sworn statement, Respondent represented that he would return to his office to make copies of the subpoenaed files. Respondent left one of the four files in the possession of undersigned counsel. Respondent was provided until February 15, 2017 to produce copies of the remaining requested client files. A copy of the providing Respondent until February 15, 2017 as Exhibit B. 3. Respondent has failed to produce copies of the three remaining client files as requested. 4. On February 27, 2017, Respondent, by way of his counsel, accepted service of a second Subpoena Duces Tecum. A copy of this second subpoena is attached as Exhibit C and a copy of the confirming acceptance of service by Respondent s counsel is attached as Exhibit D. 5. The second subpoena provided Respondent until March 17, 2017 to produce banking records in connection with (a) Respondent s operating account, (b) Respondent s trust accounts, (c) all financial records for the George S. Johnston and Eileen B. Johnston Trust, and (d) Respondent s tax returns. 6. To date, Respondent has only produced a portion of the above requested documentation. 7. Respondent was given notice that on April 11, 2017, the Twelfth Judicial Circuit Grievance Committee C would hold a hearing on the Request for 2

3 Issuance ofnotice ofnon-compliance and Finding of Contempt. A copy ofthe Notice of Hearing and the Request for Issuance ofnotice ofnon-compliance and Finding of Contempt are attached hereto as "Exhibit E." 8. Respondent responded to the Request for Issuance ofnotice ofnon- Compliance and Finding of Contempt. A copy of Respondent's response is attached as "Exhibit F." 9. Respondent, by way of his counsel objects to the production ofthe three remaining client files, and objects to the providing any financial records for the George S. Johnston and Eileen B. Johnston Trust or Respondent's personal tax returns due to privilege and confidentiality 10. The Grievance Committee unanimously found that Respondent failed to show good cause for failing to respond to these official Bar inquiries and that the non-compliance was willful. 11. The Grievance Committee found Respondent to be in contempt and requested The Florida Bar to file a Petition for Contempt and Order to Show Cause with the Supreme Court. Dated this \ '\~V' day of_a_p_._c_; '~---' Dana B. Keane, Esq. I Acting Vice Chair ~welfth Judicial Circuit Grievance q ommittee "C 3

4 CERTIFICATE OF SERVICE I certify that the original Grievance Committee Finding of Non-Compliance and Failure to Respond to Official Bar Inquiry and Contempt has been furnished by regular U.S. Mail to, Brett Alan Geer, Counsel for Respondent, The Geer Law Firm, L.C., 3030 North Rocky Point Drive West, Suite 150, Tampa, FL and via to brettgeer@geerlawfirm.com; Renee Brady, Investigating Member, rbrady@gatewaybankswfl.com; F. Scott Westheimer, Designated Reviewer, swestheimer@smrl.com, and to Adria E. Quintela, Staff Counsel, The Florida Bar to her designated address of aquintel@floridabar.org, this 19th day of April, Matthew Ian Flicker, Bar Counsel 4

5 The State of Florida: CONFIDENTIAL PROCEEDING BY THE FLORIDA BAR UNDER THE RULES OF DISCIPLINE The Florida Bar File No ,643 (12C) WITNESS SUBPOENA DUCES TECUM TO: Adam Russell Miller The Law Office of Adam R. Miller, PL 218 Harbor Drive South Venice, FL YOU ARE HEREBY COMMANDED to appear and provide testimony before Matthew I. Flicker, Bar Counsel of The Florida Bar, at Lynn N. Silvertooth Judicial Center, 2002 Ringling Boulevard, Room 303, 3rd Floor, Sarasota, Florida on the 26th day of January, 2017 at 9:00 a.m., to testify and to produce and bring with you at that time the following: 1) Produce any and all documents relating to any monies paid or received on behalf of Susan Schorpen. IfSusan Schorpen is your client, please produce a copy of your client file. 2) Produce any and all documents relating to any monies paid or received on behalf of George S. Johnston and Eileen B. Johnston Trust. IfGeorge Johnston and Eileen Johnston are your clients, please produce a copy of your client file. 3) Produce any and all documents relating to any monies paid or received by Bill Hurt. IfBill Hurt is your client, please produce a copy of your client file. 4) Produce any and all documents relating to any monies paid or received by Tricia Miller. IfTricia Miller is your client, please produce a copy of your client file You are subpoenaed by the Grievance Committee Vice-Chair whose name appears on this subpoena, and unless excused from this subpoena by the Vice Chair, you shall respond to this subpoena as directed. Exhibit A

6 For failure to appear and produce the aforementioned documents and records, you may be deemed to be in contempt of the Supreme Court of Florida. Dated this l_b_ day of -:Jo---k.v..-l'--"{ Ross Lee Foglem n III, Vice-Chair Twelfth Judicial Circuit Grievance Committee "C" 2

7 Re: TFB File No ,643 (12C) RETURN OF SERVICE I HEREBY CERTIFY that the foregoing subpoena in TFB File No ,643 (12C) was served this /8 1 # day of Jr! - cr5dtj,a L '20Il- by Signature and Title ofperson Making Service Any questions or problems arising in connection with service or cooperation with this subpoena should be directed Matthew I. Flicker, Bar Counsel, The Florida Bar, Tampa Branch Office, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida , (813)

8 Received From Subject To cc bcc Thu 01/26/2017 2:03PM Flicker, Matthew Florida Bar File Document Request Miller, Adam; Tuma, Sheila Marie Good Afternoon Adam: It was a pleasure meeting you this morning. I am going to be sending you a longer with specific documents that I will need you to provide on or before, February 15, That said, I need you to provide me with a copy of the trust agreement for the George and Eileen Johnston trust before the end of today. We saw a copy of it in your file today, but we would like to review it in advance of the additional documents being requested. Feel free to scan and submit and electronic copy. Thank you. Matt Matthew I Flicker, Esq. The Florida Bar, Tampa Branch 4200 George J. Bean Parkway, Suite 2580 Tampa, FL EXHIBIT B

9 The State of Florida: TO: CONFIDENTIAL PROCEEDING BY THE FLORIDA BAR UNDER THE RULES OF DISCIPLINE The Florida Bar File No ,643 (12C) SUBPOENADUCESTECUM Adam Russell Miller The Law Office of Adam R. Miller, PL 218 Harbor Drive South Venice, FL YOU ARE HEREBY COMMANDED to appear before Matthew I Flicker,, Bar Counsel, of The Florida Bar, duly appointed pursuant to the Rules Regulating The Florida Bar, at The Florida Bar Tampa Branch Office, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida, 33607, on March 17, 2017, at 10:00 a.m., to produce and bring with you at that time: 1. For your IOTA Account at Capital Bank please provide the following: a. Please provide the date the account was opened and the date the account was closed. b. From account origination (in 2009) to closure (in 2016) - please provide copies of all trust records including: all monthly bank statements, all deposit slips, all cancelled checks and receipts, disbursement journal, client ledgers, monthly reconciliations and comparisons. 2. For your IOTA Account at Wells Fargo Bank, please provide the following: a. Please provide the date the account was opened and the date the account was closed. b. From account origination (in 2009) to closure (in 2016) - please provide copies of all trust records including: all monthly bank statements, all deposit slips, all cancelled checks and receipts, disbursement journal, client ledgers, monthly reconciliations and comparisons. EXHIBIT C

10 3. For your operating account: a. Please provide the date the account was opened and the date the account was closed. b. Please provide the name od the bank, the account number, and all monthly bank statements from 2009 to present. c. Please provide copies od all checks written from the operating account from 2009 to present. 4. For the George S. Johnston and Eileen B. Johnston case, please provide the following: All financial records for George and Eileen's trust, including: trust tax returns for 2014, 2015, and 2016, name od bank or brokerage account, account numbers, all monthly statements, check deposited, checks disbursed, all receipts, all accountings for the trust including disbursement ledgers showing all amounts paid to beneficiaries and yourseld to date. 5. Tax Returns from : a. Please provide copies od all your tax returns from 2009 through 2015 b. For any years where a return was not file, please explain why and the status for any extension(s). You may comply with this subpoena by providing a copy od the records requested via U.S. Mail or via , to Matthew Flicker, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida, 33607, Phone: (813) , Ext. 4309, mflicker@floridabar.org. Receipt odthe requested documents on or before February 27, 2017 at 1 Oam, will constitute compliance with the subpoena and personal appearance on March 17, 2017, will not be required. For failure to appear and produce the aforementioned documents and records, you may be deemed to be in contempt od the Supreme Court od Florida. Ifyou are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision ofcertain assistance. Please contact Matthew Flicker, Bar Counsel, at (813) at least 7 days before your scheduled appearance, or immediately upon receiving this notification ifi the time before the scheduled appearance is less 2

11 than 7 days. Ifyou are hearing or voice impaired, call 711. Dated this oth day of V\1l (Ll '2017. A Minix, Chair T el th Judicial Circuit Grievance Co 3

12 Re: TFB File No ,643 (12C) RETURN OF SERVICE I HEREBY CERTIFY that the foregoing subpoena in TFB File No ,643 (12C) was served this day of '20_by (method of service) Signature and Title of Person Making Service Any questions or problems arising in connection with service or cooperation with this subpoena should be directed to Matthew Ian Flicker, Bar Counsel, The Florida Bar, Tampa Branch Office, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida , (813)

13 Received From Subject To cc bcc Thu 03/09/2017 2:22PM Flicker, Matthew RE: Please see letter attached re File ,643 (12C) Brett Geer Tuma, Sheila Marie; Brady, Renee revised subpoena - Miller.doc.pdf Good Afternoon Brett: Please see the attached executed subpoena with a revised date of 3/17/17. I will look forward to receipt of the requested documentation. Thank you. Matt Matthew I Flicker, Esq. The Florida Bar, Tampa Branch 4200 George J. Bean Parkway, Suite 2580 Tampa, FL From: Brett Geer [mailto:brettgeer@geerlawfirm.com] Sent: Tuesday, March 07, :23 AM To: Flicker, Matthew <mflicker@floridabar.org> Cc: Tuma, Sheila Marie <stuma@floridabar.org>; Brady, Renee <rbrady@gatewaybankswfl.com> Subject: Re: Please see letter attached re File ,643 (12C) Matt, Yes, we will accept service of subpoenas for Mr. Miller, by if you prefer. In all honesty, I must say that I became disturbed reading the three-against-one inquiry that resulted from what I view as a faulty and objectionable subpoena, during which a whole lot of extraneous and confidential client information was openly discussed, under what my client believed was a veil of confidentiality. Perhaps it is time to consider developing a Miranda-type warning for situations like this, in which a near-coercive environment results in the abuse of client rights in the name of a fishing expedition. It may be that attorneys merely have a privilege, but their clients have rights. Thank you. BRETT GEER From: Flicker, Matthew Sent: Tuesday, March 07, :54 AM To: Brett Geer Subject: RE: Please see letter attached re File ,643 (12C) EXHIBIT D

14 Good Morning Mr. Geer: I am in receipt of your letter dated 3/6/17. Tomorrow the GC will be meeting in Sarasota. I will be discussing how the committee wishes to proceed in light of your client s position. To that end, I will be issuing a new / revised subpoena for your client s banking records as to the mutually agreed date of 3/17/17. Please respond to this before the end of the day to confirm your willingness to accept service. I have attached a draft copy of the revised subpoena for your client s business/banking records for your review. If you are not agreeable to accepting service, please let me know. I can have our investigator serve your client directly. I look forward to hearing from you soon. Matt Matthew I Flicker, Esq. The Florida Bar, Tampa Branch 4200 George J. Bean Parkway, Suite 2580 Tampa, FL From: Brett Geer mailto:brettgeer@geerlawfirm.com Sent: Monday, March 06, :53 PM To: Flicker, Matthew <mflicker@floridabar.org> Subject: Please see letter attached re File ,643 (12C) Matthew, I am concerned about the propriety of the subpoenas and the statement that was taken. Please feel free to contact me when you get this. Thank you. BRETT GEER The Geer Law Firm, L.C N. Rocky Point Drive West, Suite 150 Tampa, Florida Voice Fax QUOTE OF THE DAY: This has been checked for viruses by Avast antivirus software.

15 Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your communications may therefore be subject to public disclosure. This has been checked for viruses by Avast antivirus software.

16 John F. Harkness, Jr. Executive Director The Florida Bar Tampa Branch Office 4200 George J. Bean Parkway, Suite 2580 Tampa, Florida March 20, 2017 (813) Adam Russell Miller, Respondent c/o Brett Alan Geer, Counsel for Respondent The Geer Law Firm, L.C North Rocky Point Drive West, Suite 150 Tampa, FL Re: Complaint by The Florida Bar against Adam Russell Miller The Florida Bar File No ,643 (12C); Dear Mr. Geer: This letter is to advise you that the Twelfth Judicial Circuit Grievance Committee "C" will consider the above-referenced case on April 12, 2017, pursuant to Rule 3-7.4, Rules Regulating The Florida Bar. The matter to be heard is the Request For Issuance of Notice of Non- Compliance and Finding of Contempt. There will be no appearances by either party or by any witnesses in the case. However, you may make a written statement, sworn or unsworn, explaining, refuting, or admitting the alleged misconduct. If you wish to make a written statement, it must be received by the Investigating Member, Renee Brady, at least five (5) working days in advance of the date noted in paragraph one. Please provide copies of your statement to bar counsel and the committee chair as well. The Committee has discretion to schedule a live hearing prior to making a decision about this proceeding. In this case, the Committee has determined that a live hearing would not be of assistance in its consideration of the matter. No live hearing has been scheduled nor is expected. If you believe that a live hearing would be useful to the Committee s deliberations, you may request that the Committee revisit its decision. You may do so by sending a written request for a live hearing to the Chair of the Committee, with copies to the Investigating Member and to the Bar s counsel. Your request should include an explanation of why a live hearing is needed to supplement the written record, including a description of the evidence and issues you would expect to be presented at such a hearing. Your request should be received by the Chair at least five (5) business days prior to the scheduled summary proceeding. EXHIBIT E

17 Brett Alan Geer March 20, 2017 Page Two If the Committee decides to schedule a live hearing, you will be notified of that fact. The decision whether to hold a live hearing is left to the absolute discretion of the Committee; there is no right to appeal or review this decision. Sincerely, Matthew Ian Flicker Bar Counsel MF/mf cc: James A. Minix, Chair Renee Brady, Investigating Member F. Scott Westheimer, Designated Reviewer Enclosure: Request for Issuance of Notice of Non-Compliance and Finding of Contempt with Exhibits

18 IN THE SUPREME COURT OF FLORIDA (Before A Grievance Committee) THE FLORIDA BAR, Complainant, The Florida Bar File No ,643 (12C) v. ADAM RUSSELL MILLER, Respondent. / REQUEST FOR ISSUANCE OF NOTICE OF NON-COMPLIANCE AND FINDING OF CONTEMPT Pursuant to Rule (f)(2), Rules Regulating The Florida Bar, the undersigned Bar Counsel hereby requests that on April 12, 2017, the Twelfth Judicial Circuit Grievance Committee C, hear the issue of whether Respondent has willfully failed to respond to an official Bar inquiry without good cause and whether Respondent has good cause to excuse Respondent's failure to respond to an official Bar inquiry and whether Respondent should be held in contempt for failure to respond to an official Bar inquiry as set forth below: 1. On January 18, 2017, Respondent was personally served with a Subpoena Duces Tecum requiring him to produce copies of any and all documents relating to monies received and or paid out to four clients in connection with a Notice of Insufficient Funds for Respondent s Capital Bank IOLTA account.

19 Additionally, Respondent was asked to produce these four client files. Respondent brought the originals of these files to Respondent s sworn statement on January 26, 2017 which was reviewed by undersigned counsel and the investigating member of the grievance committee. Respondent did not bring copies of these files to his sworn statement. At the close of Respondent s sworn statement, Respondent represented that he would return to his office to make a copy of the subpoenaed files. Respondent left one original client file in the possession of undersigned counsel. Respondent was provided until February 15, 2017 to produce copies of the remaining requested client files. A copy of the subpoena is attached as Exhibit A, and a copy of the providing Respondent until February 15, 2017 is attached as Exhibit B. 2. Respondent has failed to produce the requested financial records or copies of the three remaining client files as requested. 3. Respondent through his counsel has raised a privilege to the production of these documents. 4. On February 27, 2017, Respondent, by way of his counsel, accepted service of a second Subpoena Duces Tecum. A copy of the second subpoena is attached as Exhibit C and a copy of the confirming acceptance of service by Respondent s counsel is attached as Exhibit D. 5. The second subpoena provided Respondent until March 17, 2017 to produce banking records in connection with: (a) Respondent s operating account, 2

20 (b) Respondent s trust accounts, (c) all financial records for the George S. Johnston and Eileen B. Johnston trust, and (d) Respondent s tax returns. On March 17, Respondent s counsel provided only a portion of the requested documentation. 6. Respondent s counsel has advised that Respondent objects to providing any financial records for the George S. Johnston and Eileen B. Johnston trust or Respondent s personal tax returns due to privilege and confidentiality. 7. Respondent s production on March 17, 2017 also fails to include the following requested information: (a) IOLTA Trust Account, Capital Bank all account records from origination in 2009 through December, For the period of December, 2011 to present, Respondent has not produced any of the following: (1) deposit slips, (2) disbursement journal, (3) client ledgers, or (4) monthly reconciliations/comparisons; (b) IOLTA Trust Account, Wells Fargo Bank, Respondent has not produced any records prior to January, For the period of January, 2014 to October, 2016, Respondent has not produced any of the following: (1) deposit slips, (2) disbursement journal, (3) client ledgers, (4) checks, or (5) monthly reconciliations/comparisons; (c) Wells Fargo Operating Account Respondent has not produced any checks for the requested period. 8. As of the date of this Request for Issuance of Notice of Non- 3

21 Compliance and Finding of Contempt, the Respondent has willfully failed to comply with both subpoenas without good cause. WHEREFORE, the undersigned Bar Counsel respectfully requests that this Grievance Committee issue its findings as to whether Respondent has willfully failed to respond to an official Bar subpoena and whether Respondent should be held in contempt for failure to respond to an official Bar inquiry. Respectfully submitted, Matthew Ian Flicker, Bar Counsel The Florida Bar, Tampa Branch Office 4200 George J. Bean Parkway, Suite 2580 Tampa, Florida (813) Florida Bar No.: CERTIFICATE OF SERVICE I certify that the Request for Issuance of Notice of Non-Compliance and Finding of Contempt has been furnished by to James A. Minix, Chair, at his designated address of jam6670@verizon.net; with copies to Brett Alan Geer, Counsel for Respondent, The Geer Law Firm, L.C., 3030 North Rocky Point Drive West, Suite 150, Tampa, Florida 33607, and via to brettgeer@geerlawfirm.com; to Renee Brady, Investigating Member, to her address of rbrady@gatewaybankswfl.com; to F. Scott Westheimer, Designated Reviewer, at his address of swestheimer@smrl.com; and to Adria E. Quintela, Staff Counsel, The Florida Bar at her designated address of aquintel@floridabar.org, all this 20th day of March, Matthew Ian Flicker, Bar Counsel 4

22 the geer law firm, l.c N. Rocky Point Drive West, Suite 150 Tampa, Florida BrettGeer@GeerLawFirm.com fax Brett A. Geer, Esq. Admitted: The Supreme Court of Florida U.S. District Court, Middle District of Florida U.S. Court of Appeals, 11th Circuit The Supreme Court of the United States April 5, 2017 Matthew Ian Flicker, Esq. The Florida Bar 4200 George J. Bean Pkwy., Suite 2580 Tampa, Florida Re: Complaint by The Florida Bar; Florida Bar File No ,643 (12C) Dear Mr. Flicker, This letter responds to yours dated March 20, 2017, regarding my client s production per the subpoena by grievance committee and the committee s subsequent reaction. I will frame this response in the manner of responding to a rule to show cause. Mr. Miller has not acted with contempt toward the committee or the disciplinary authority. Indeed, he has cooperated with the committee and the Bar to the best of his ability. His candor and cooperation have been at the expense of his clients confidentiality and his own interests. Two areas of the Bar s inquiry concern Mr. Miller, and also concern the committee. Those are: 1) His failure to provide full trust accounting records; and 2) His objections to producing client files based on his clients directives and to producing his personal tax returns as impertinent to this inquiry. Mr. Miller admits that he has not kept his trust account in compliance with Chapter 5 of the Rules Regulating The Florida Bar. He did not retain his monthly reconciliations of his operating or trust account and he did not retain the original deposit receipts for his IOTA account. He admits that he did not keep proper client ledgers, nor a receipts and disbursements journal. Of course he regrets these record keeping failures. He denies converting any client funds to his own use improperly. Mr. Miller admits loaning money to certain at-risk clients. The loans he made were interest-free. The loans he made to Susan Schorpen are not connected to the probate case in which she is a beneficiary, although he is aware of the amount of her anticipated legacy through confidential communications with her. Thus, he expects repayment on those loans. Another attorney is handling Ms. Schorpen s probate case. Ms. Schorpen is in a position to inherit a substantial legacy, of which Mr. Miller has been made aware, and that explains his willingness to loan her funds to sustain her until her legacy is EXHIBIT F

23 Geer-Flicker [ ,643(12C)] April 5, 2017 Page 2 received. No collateral has been pledged and Mr. Miller has no guarantee of being repaid. Perhaps he is a poor businessman but a good human being. He understands that the Florida Bar does not investigate whether he is a good person but whether he has followed the rules correctly. Regarding the other clients to whom Mr. Miller has provided funds, he did so incidental to legal services he is handling for them, and he expects to be repaid upon the conclusion of their legal matters. Again, no collateral has been pledged and he has no guarantee of repayment of the loans. This humanistic approach to practicing law places him in jeopardy with the Bar, all as a result of issuing a check from his IOTA account for which there were insufficient funds. Ironically, the IOTA check constituted a loan from him to Susan Schorpen. At the time, all funds in his IOTA account were his earned fees. He has not taken another client s money and loaned it to another client. We want to be clear about that. As for a finding of non-compliance or contempt, Mr. Miller cannot produce records that he did not keep or maintain. Because Capital Bank was formerly known by another name and owned by a prior entity, he has had difficulty obtaining records of his banking records there prior to He is working on getting those and has been promised that the archived records will be forthcoming. When those are produced to him, copies will be provided to the committee. We ask the committee s patience and indulgence as to this. As for copies of checks written against the Wells Fargo account, Mr. Miller assures me that those will be forthcoming in the near future as well. The bank s procedures do not include copying canceled checks to the account holder. As for the Wells Fargo IOTA account, he has stated under oath that the account was used very little before being closed. What he has produced is all there is. Of course the bank can be subpoenaed. The subpoenaed Client files and his personal tax returns are another matter. As his counsel I am having difficulty determining what probable cause exists for the committee to subpoena such materials. There is no complaining witness framing or driving this inquiry-complaint; that is, none of the clients have complained. Accordingly, the original subpoena commanding Mr. Miller to produce certain client files was without sufficient legal basis, in our estimation. He produced them for inspection without legal advice and at odds with his client s confidences. At the time, he ceded possession to the Florida Bar of his client file on Susan Schorpen. He produced for inspection the other subpoenaed client files, which Bar counsel and the investigating member apparently reviewed but did not reproduce. Thus, he was re-subpoenaed to re-produce those other client files. Upon consulting with those clients, Mr. Miller was advised by them that they do not consent to their confidential information being revealed, and therefore he has objected to producing those again. This places Mr. Miller in an ethical quandary.

24 Geer-Flicker [ ,643(12C)] April 5, 2017 Page 3 In Buntrock v. Buntrock, 419 So. 2d 402, 403 (Fla. 4th DCA 1982), it was held that the ethical rule protects more than confidential communications, it protects the confidences and secrets of a client. This protection is broader than the evidentiary attorney-client privilege, and applies even though the same information is discoverable from other sources. Id. Even in criminal cases, information that a lawyer learns about a client s past acts must be considered confidential under Rule 4-1.6, and ordinarily may not be revealed without the client s consent. Fla. Ethics Op (Oct. 1, 1991) (holding that a criminal defense attorney who learns that client is proceeding under a false name may not inform the court of that fact). Thus, for Mr. Miller to again produce his client s confidences creates a dilemma of failing to comply with the committee by violating his ethical obligation to his clients and the express directives of his clients upon proper consultation. As stated, the ethical obligation to guard the confidences and secrets of a client is broader than, and independent of, the attorney-client privilege. In re Duque, 134 B.R. 679, 688 (S.D. Fla. 1991) (attorneys have fulfilled their ethical obligation by vigorously invoking the privilege against a subpoena deemed to be invasive of confidentiality requirement). Not only does Rule impose a duty to maintain confidentiality of the client s information, it imposes upon lawyers a correlative duty to refrain from inducing others to disclose confidential matters. Rentclub, Inc. v. Transamerica Rental Financial Corp., 811 F.Supp. 651, 654 (M.D. Fla. 1992) (an appearance of impropriety arose when a lawyer induced another to breach a client s confidence). This could be perceived as applying to the committee compelling an unrepresented attorney to produce client files. Under these circumstances, Mr. Miller is obliged to vigorously resist a demand that he violate his ethical duties. Like many lawyers, he was intimidated by this process and by the first subpoena, and showed confidential client files to Bar representatives without due consideration and without first consulting the clients. Now that he has consulted with them, Mr. Miller is fairly obliged to object and decline, and to exhaust his remedies. With respect, his position in this regard is a legal one and does not amount to intentional non-compliance, nor should it support a finding of contempt. As to my client s objection to producing his personal tax returns as identified in the subpoenas, we cannot connect the dots between the initial reason this file was opened (IOTA imbalance), and what has been disclosed, with any prospect of probable cause for such an intrusion into his personal finances. This recalcitrance is not intended to deny the committee material evidence; it is a request for a statement of probable cause as to why such evidence is material to the issues the committee is properly investigating. Mr. Miller s privacy concerns are implicated by such commands for disclosure of personal information, such that he feels justified in requesting clarification as to what probable cause exists for the command, upon which the committee is relying. Under these circumstances we respectfully request that the committee accept Mr. Miller s

25 Geer-Flicker [ ,643(12C)] April 5, 2017 Page 4 response to the subpoenas in the light it is intended, which intent does not include obstruction of the committee s work, but rather higher concerns governing disclosure of his clients and his own personal information without probable cause. Thank you. Sincerely, Brett Alan Geer Brett A. Geer cc: Adam R. Miller, Esq. Ms. Renee Brady, Investigating Member