IN THE SUPREME COURT OF FLORIDA. v. The Florida Bar File No ,252(11D-OSC) HAROLD M. BRAXTON,

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1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Petitioner/Appellant, Supreme Court Case No. SC v. The Florida Bar File No ,252(11D-OSC) HAROLD M. BRAXTON, Respondent/Appellee. / THE FLORIDA BAR S REPLY AND CROSS ANSWER BRIEF ON APPEAL JENNIFER R. FALCONE MOORE Bar Counsel Florida Bar No The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida (305) KENNETH LAWRENCE MARVIN Staff Counsel Florida Bar No The Florida Bar 651 East Jefferson Street Tallahassee, Florida (850) JOHN F. HARKNESS, JR. Executive Director Florida Bar No The Florida Bar 651 East Jefferson Street Tallahassee, Florida (850)

2 TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES... SYMBOLS AND REFERENCES... PAGE i ii - iii iv SUMMARY OF THE ARGUMENT... 1 ARGUMENT I. THIS COURT RETAINS CONTINUING DISCIPLINARY JURISDICTION OVER PERMANENTLY RESIGNED ATTORNEYS, AND THEREFORE HAS THE JURISDICTION AND AUTHORITY TO IMPOSE DISCIPLINARY SANCTIONS IN THIS MATTER. 2-4 II. THE REFEREE S RECOMMENDATION OF AN ADMONISHMENT FOR MINOR MISCONDUCT DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS; RATHER, PERMANENT DISBARMENT IS THE APPROPRIATE SANCTION IN THIS CASE CONCLUSION CERTIFICATE OF TYPE, SIZE, AND STYLE CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES CASES: PAGE The Florida Bar v. Bauman, 558 So. 2d 994 (Fla. 1990)... 9 The Florida Bar v. Bitterman, 33 So. 2d 686 (Fla. 2010). 7, 10 The Florida Bar v. Brigman, 322 So. 2d 556 (Fla. 1975)... 8 The Florida Bar v. Brown, 635 So. 2d 13 (Fla. 1994) 3 The Florida Bar v. Capua, 66 So. 3d 304 (Table) (Fla. 2011)... 8 The Florida Bar v. Forrester, 916 So. 2d 647 (Fla. 2005).. 4, 8, 9 The Florida Bar v. Gussow, 520 So. 2d 580 (Fla. 1988).. 9 The Florida Bar v. Hawkins, 643 So. 2d 1074 (Fla. 1994) 3 The Florida Bar v. Jones, 571 So. 2d 426 (Fla. 1990).. 9 The Florida Bar v. Weisser, 721 So. 2d 1142 (Fla. 1998) 3 The Florida Bar v. Winter, 549 So. 2d 188 (Fla. 1989).. 3 ii

4 OTHER AUTHORITIES: Florida Rules of Civil Procedures: 1.410(a) Florida Standards for Imposing Lawyer Sanctions: , 10 iii

5 SYMBOLS AND REFERENCES For the purpose of this brief, Harold M. Braxton may be referred to as Respondent. The Florida Bar may be referred to as The Florida Bar or the Bar. The referee may be referred to as the Referee. Additionally, the Rules Regulating the Florida Bar may be referred to as the Rules and the Florida Standards for Imposing Lawyer Sanctions may be referred to as the Standards. References to the Report of Referee will be by the symbol ROR followed by the corresponding page number(s). References to the transcript of the final hearing held on November 2, 2011 will be by the symbol T followed by the corresponding page number(s). References to The Florida Bar s exhibits will be by TFB, followed by the exhibit number. References to Exhibits to the Petition for Contempt and Order to Show Cause will be by Ex, followed by the exhibit number to The Florida Bar s Petition. iv

6 SUMMARY OF THE ARGUMENT This Court retains continuing disciplinary jurisdiction over former attorneys who have been disbarred and attorneys who have resigned in the face of disciplinary charges. This Court s long standing precedent is to impose disciplinary sanctions on disbarred and disciplinarily resigned attorneys following a finding of contempt of the disciplinary order terminating their status as a member of the Florida Bar. Respondent s status of permanent disciplinary resignation does not deprive this Court of continuing disciplinary authority. The Referee s findings concerning aggravating and mitigating factors were correct. The Referee s recommendation of an admonishment for minor misconduct in this matter is contrary to existing case law and the Florida Standards for Imposing Lawyer Sanctions. Relevant case law establishes that permanent disbarment is the appropriate discipline for Respondent, where he was previously permanently disciplinarily resigned, and where he thereafter intentionally engaged in the practice of law and held himself out as an attorney in good standing by issuing multiple unlawful and improper subpoenas, signed for the Court, after being specifically placed on notice that his conduct was improper and unlawful, and where his conduct constitutes contempt of this Court s prior disciplinary order. 1

7 ARGUMENT I. THIS COURT RETAINS CONTINUING DISCIPLINARY JURISDICTION OVER PERMANENTLY RESIGNED ATTORNEYS, AND THEREFORE HAS THE JURISDICTION AND AUTHORITY TO IMPOSE DISCIPLINARY SANCTIONS IN THIS MATTER. Respondent contends that his status as a permanently resigned former attorney deprives this Court of jurisdiction to impose disciplinary sanctions for his contemptuous misconduct. Contrary to Respondent s contentions and consistent with this Court s vast and long standing precedent, this Court does retain continuing disciplinary jurisdiction over those former attorneys who have been disbarred or who have resigned in light of pending disciplinary matters. The presumptive sanction for such contemptuous misconduct by a disciplinarily resigned attorney is disbarment. Respondent s argument is without legal merit and must be denied. Respondent s petition for disciplinary resignation without leave to seek readmission was granted pursuant to this Court s Order dated September 10, 1998 (SC99370). Respondent, thereafter, willfully and intentionally violated the terms of his disciplinary resignation by continuing to engage in the practice of law. Respondent s act of intentionally issuing subpoenas, while resigned, violated Florida Rule of Civil Procedure 1.410(a). By issuing the subpoena, Respondent held himself out as an attorney in good standing with the Florida Bar. 2

8 Accordingly, Respondent s contemptuous actions violated this Court s Order dated September 10, 1998, and place him squarely within the purview of this Court s disciplinary authority. Respondent misconstrues the classification of non-lawyer as providing protection from this Court s ongoing contempt and disciplinary authority. Contrary to Respondent s assertions, this Court has routinely disbarred nonlawyers who continue to practice law in contempt of the Court s Order granting their disciplinary resignations. See The Florida Bar v. Weisser, 721 So.2d 1142 (Fla. 1998); The Florida Bar v. Brown 635 So.2d 13 (Fla. 1994); and The Florida Bar v. Hawkins, 643 So.2d 1074 (Fla. 1994). It is immaterial that Respondent s resignation was without leave to reapply. Respondent s permanent resignation does not force this Court to analyze Respondent s case under Chapter 10 of the Rules Regulating the Florida Bar, nor does it place Respondent beyond the reach of this Court s contempt and disciplinary authority. See The Florida Bar v. Winter, 549 So.2d 188 (Fla. 1989) (permanently disbarring an attorney for continuing to practice law in violation of his permanent resignation). Indeed, as this Court stated in Brown, 635 So.2d 13, Clear violation of any order or disciplinary status that denies an attorney the license to practice law generally is punishable by disbarment, absent strong extenuating factors. (emphasis added). Finally, Respondent contends that additional punishment would be 3

9 meaningless, or needlessly duplicative. Respondent misinterprets the underlying purpose of his discipline. In Forrester, 916 So.2d at 651, this Court stated: The purpose of contempt proceedings brought against an attorney for violation of an existing disciplinary order is to punish the offending attorney and vindicate the authority of this Court to discipline Florida attorneys. The purpose is not remedial in nature or primarily for the purpose of coercing the disciplined attorney to comply, nor can the contemptor purge the contempt through compliance with the Court s order the punishment sought is additional disciplinary sanctions. Respondent s disbarment would not be a consecutive death sentence. Rather, it would attach the stigma of disbarment to Respondent s record and vindicate this Court s authority over an individual who, despite knowing the wrongfulness of his conduct, has continuously violated this Court s order over a period of several years. II. THE REFEREE S RECOMMENDATION OF AN ADMONISHMENT FOR MINOR MISCONDUCT DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS; RATHER, PERMANENT DISBARMENT IS THE APPROPRIATE SANCTION IN THIS CASE. Respondent contends that the Referee erred in her findings concerning aggravating and mitigating factors. Contrary to Respondent s assertions, the Referee s findings concerning aggravating and mitigating factors were correct. Respondent s argument is without merit and should be denied. Respondent asserts that the Referee s listing of lack of remorse as an 4

10 aggravator was in error. Respondent cites to his counsel s words upon direct examination as proof of same. However, the Referee s finding of this aggravating factor clearly stem from overall message contained in all of Respondent s comments and testimony. Despite Respondent s mouthing words of remorse, his true state of mind is apparent from the remainder of his testimony. Respondent s overall testimony clearly indicates that the thing he actually regrets is that he got caught this time, and not the fact that he engaged in the contemptuous misconduct. Respondent testified that he did not pay any attention when opposing counsel in the 2005 litigation put him on notice that his actions in issuing his own subpoenas were unlawful and constituted the unlicensed practice of law. (T ). Despite being made aware of the Rules of Civil Procedure governing the issuance of subpoenas, Respondent would have the Referee and this Court believe that he did not mean to do anything wrong when he continued to issue his own subpoenas in direct violation of the Rules of Civil Procedure and this Court s orders. Respondent further testified that, except for the opposing counsel in the 2005 litigation, no one ever objected and the items subpoenaed were produced. Since he was able to work things out with opposing counsel, he just didn t pay attention to the Rule violation, and didn t think anymore about it. (T , 35-37). By this testimony, it is clear that Respondent is actually saying, the Rule was brought to my attention, however, I continued to engage in the conduct 5

11 because I was able to resolve the issue and make it go away, and/or others did not object to my continued violation of the Rules. Nowhere in that testimony is there an expression of remorse for his contemptuous misconduct. He went so far as to testify that he would probably continue to issue subpoenas to this day but for the Florida Bar bringing the present action against him. (T ). Thus, it is eminently clear that Respondent merely regrets being caught, and not his contemptuous actions. The Referee was undeniably struck by this testimony as well, and clearly indicated her view that it did not reflect remorse for the conduct at issue, but rather Respondent s upset at getting caught: MR. BRAXTON: something. I just didn t think. I didn t purposely try to get away with THE COURT: Well, I ll tell you what; you re saying you didn t purposely get away. You did make a decision to proceed and issue subpoenas without hiring an attorney as you now have hired an attorney to do this for you. MR. BRAXTON: I made a decision to represent myself. THE COURT: Yes. I mean, you made a decision to say you know what, I don t need an attorney. I can get away with doing it on my own. And you did, many times. You did issue subpoenas and it worked. (T. 67) (emphasis added). Thus, the record is clear that Respondent did not express any genuine remorse for his misconduct, and the Referee properly found this as an aggravating factor. For these same reasons, remorse was properly omitted as a mitigating factor. 6

12 The Florida Bar does not dispute that Respondent has been cooperative with these proceedings, and did in fact stipulate to the facts alleged in the Complaint of the Florida Bar at the final hearing. Finally, Respondent asserts that the Referee s recommended discipline of an admonishment for minor misconduct is the appropriate disciplinary sanction in this matter. Contrary to Respondent s assertions, the Referee s recommendation of an admonishment for minor misconduct in this matter does not comport with existing case law and standards, and should be rejected by this Court. The appropriate sanction for Respondent who is the subject of a permanent disciplinary resignation, and who intentionally held himself out as an attorney in good standing, and engaged in the practice of law by issuing multiple subpoenas, in contempt of a prior disciplinary order, is permanent disbarment. The Florida Bar hereby adopts and incorporates its argument contained in its Initial Brief on Appeal in its entirety. This Court has repeatedly held that disbarment is proper when a suspended or disbarred attorney is held in contempt for engaging in the practice of law during the period of suspension or disbarment. The Florida Bar v. Bitterman, 33 So.3d 686 (Fla. 2010). Further, in a case directly on point, this Court held that an extension of the term of disbarment was the appropriate sanction for a disbarred attorney s contemptuous conduct of issuing a subpoena in a matter in which he 7

13 represented himself pro se. The Florida Bar v. Capua, 66 So.3d 304 (Table) (Fla. 2011). In the instant case, this Court having previously accepted Respondent s permanent resignation, permanent disbarment is the appropriate sanction. Respondent s actions of holding himself out as an attorney in good standing and engaging in the practice of law while permanently disciplinarily resigned require a more severe sanction than the admonishment for minor misconduct recommended by the Referee. This Court must reject the Referee s recommendation because Respondent was already permanently resigned at the time he engaged in this misconduct. This Court has previously held that when a suspended or disbarred attorney violates this Court s prior disciplinary order and is held in contempt for said misconduct, at least a rehabilitative suspension will be imposed on the offending attorney for that misconduct, standing alone. See The Florida Bar v. Brigman, 322 So.2d 556 (Fla. 1975), and The Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005). Therefore, the Referee s recommended discipline of an admonishment for minor misconduct does not comport with this Court s prior jurisprudence. As an already permanently resigned attorney, the appropriate sanction is permanent disbarment. Furthermore, the purpose of contempt proceedings brought against an attorney for violation of an existing disciplinary order, separate and distinct from the purposes behind lawyer discipline generally, is to punish the offending attorney 8

14 and to vindicate the authority of the Supreme Court to discipline Florida attorneys. The Florida Bar v. Forrester, 916 So.2d 647, 651 (Fla. 2005). In the instant contempt proceeding, the Referee s recommended admonishment for minor misconduct does not serve these purposes, especially in light of the fact that Respondent s behavior exhibits a pattern of misconduct. This Court has found that disbarment is the appropriate sanction under these circumstances. See The Florida Bar v. Gussow, 520 So.2d 580 (Fla. 1988) (Disbarment, rather than a rehabilitative suspension, is the appropriate sanction for a lawyer who is found in contempt of this Court s order); see also The Florida Bar v. Jones, 571 So.2d 426 (Fla. 1990) and The Florida Bar v. Bauman, 558 So.2d 994 (Fla. 1990). Finally, the Florida Standards for Imposing Lawyer Sanctions demonstrate that permanent disbarment is the appropriate sanction in this matter. Where the Referee made findings of intentional contemptuous misconduct, the appropriate Standard to apply is 8.1. Standard 8.1 provides that disbarment is appropriate when a lawyer intentionally violates the terms of a prior disciplinary order and such violation causes injury to a client, the public, the legal system, or the profession. In the instant case, this Court issued an Order accepting Respondent s permanent disciplinary resignation, and that order is still in effect. Respondent violated the terms of that Order through his intentional acts of engaging in the 9

15 practice of law and holding himself out as an attorney in good standing. Further, Respondent s actions caused harm to the legal system and members of the public. Respondent s repeated assertions that no party objected to his subpoenas, and all produced the requested evidence, do not negate the harm resulting therefrom. In the instant case, Respondent s contemptuous conduct harmed this Court and the legal system as a whole. This Court, and thus the legal system, are injured when there is a lack of compliance with an order.... The Florida Bar v. Bitterman, 33 So.3d 686, 688 (Fla. 2010). The legal system was further harmed when an unlawful and improper subpoena was issued, in violation the Rules of Civil Procedure. Furthermore, numerous members of the public were harmed when they received the subpoena and were required to appear in reliance on same. Therefore, based on the facts and circumstances of this case, Standard 8.1 states that permanent disbarment is the appropriate sanction in this case. 10

16 CONCLUSION In consideration of this Court s broad discretion as to discipline and based upon the foregoing reasons and citations of authority, The Florida Bar respectfully requests that this Court reject the Referee s recommended discipline of an admonishment for minor misconduct and impose instead permanent disbarment. JENNIFER R. FALCONE MOORE Bar Counsel Florida Bar No The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida (305) KENNETH LAWRENCE MARVIN Staff Counsel Florida Bar No The Florida Bar 651 East Jefferson Street Tallahassee, Florida (850) JOHN F. HARKNESS, JR. Executive Director Florida Bar No The Florida Bar 651 East Jefferson Street Tallahassee, Florida Tel: (850) 56l

17 CERTIFICATE OF TYPE, SIZE AND STYLE I HEREBY CERTIFY that the Reply and Cross Answer Brief of The Florida Bar is submitted in 14 point proportionately spaced Times New Roman font in Microsoft Word format. JENNIFER R. FALCONE MOORE Bar Counsel CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and seven copies of The Florida Bar s Reply and Cross Answer Brief was sent via U.S. Priority Mail, Delivery Confirmation no , (and a true and correct copy was sent via electronic mail at e-file@flcourts.org) to the Honorable Thomas D. Hall, Clerk, Supreme Court Building, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399; and a true and correct copy was ed to mbf@flmlegal.com and mailed to Michael B. Feiler, Attorney for Respondent, at 901 Ponce De Leon Boulevard, Penthouse Suite, Coral Gables, Florida 33134; and mailed to Kenneth L. Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399; on this day of May, JENNIFER R. FALCONE MOORE Bar Counsel 12