IN THE SUPREME COURT OF FLORIDA

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1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Petitioner/Appellant, Supreme Court Case No. SC v. PETER MARCELLUS CAPUA, Respondent/Appellee. The Florida Bar File No ,123(11H-OSC) / THE FLORIDA BAR S INITIAL 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 STATEMENT OF THE CASE AND OF THE FACTS SUMMARY OF THE ARGUMENT... 7 ARGUMENT I. THE REFEREE S RECOMMENDATION OF A PUBLIC REPRIMAND DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS; RATHER, A CONSECUTIVE FIVE YEAR TERM OF 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 Rowe v. Willie, 415 So. 2d 79 (4 th DCA 1982).. 11 Sanchez-Velasco v. State, 570 So. 2d 908 (Fla. 1990) 11 The Florida Bar v. Anderson, 538 So. 2d 852 (Fla. 1989) 8 The Florida Bar v. Bauman, 558 So. 2d 994 (Fla. 1990) The Florida Bar v. Bitterman, 33 So. 2d 686 (Fla. 2010). 11, 14 The Florida Bar v. Breed, 368 So. 2d 356 (Fla. 1979) 9 The Florida Bar v. Brigman, 322 So. 2d 556 (Fla. 1975) The Florida Bar v. Forrester, 916 So. 2d 647 (Fla. 2005).. 12 The Florida Bar v. Gussow, 520 So. 2d 580 (Fla. 1988).. 13 The Florida Bar v. Jones, 571 So. 2d 426 (Fla. 1990).. 13 The Florida Bar v. O Connor, 945 So. 2d 1113 (Fla. 2006) 8 The Florida Bar v. Temmer, 753 So. 2d 555 (Fla. 1999)... 9 ii

4 CONSTITUTIONAL PROVISIONS: Art. V, 15, Fla. Const.. 8 OTHER AUTHORITIES: Florida Rules of Criminal Procedures: 3.361(a).... 2, 9 Florida Standards for Imposing Lawyer Sanctions: , 7, 13, (a) , 7, 13 Rules Regulating The Florida Bar: 3-5.1(f) , 3-4, 5, (a) (e).. 2, 5 iii

5 SYMBOLS AND REFERENCES For the purpose of this brief, Peter Marcellus Capua 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 March 15, 2010 will be by the symbol T followed by the corresponding page number(s). References to the transcript of the telephonic hearing held on March 18, 2010 will be by the symbol T2 followed by the corresponding page number(s). References to The Florida Bar s exhibits will be by TFB, followed by the exhibit number. iv

6 STATEMENT OF THE CASE AND OF THE FACTS On November 20, 2008, this Court issued an order disbarring Respondent from the practice of law effective nunc pro tunc to January 3, The Florida Bar v. Capua, 996 So.2d 859 (Fla. 2008). (T. 82). Respondent remains disbarred and is not currently eligible to seek readmission to the Florida Bar until January 3, Respondent is therefore precluded from holding himself out as a member in good standing, or from engaging in the practice of law. On February 18, 2009, Respondent was arrested by Detective Laura Migala, a detective for the State of Florida Department of Insurance Fraud. On May 11, 2009, Respondent was representing himself pro se in another, unrelated, criminal proceeding. On or about May 11, 2009, Respondent issued a subpoena to Detective Laura Migala, advising her that she needed to appear in court. (TFB Ex. 1). The subpoena reads: Unless you are excused by the attorneys [sic] whose name appears on this subpoena or the Court, you shall respond to this subpoena as directed. You are subpoenaed by the following attorney and unless excused from this subpoena by this attorney or the Court, you shall respond to this subpoena as directed. (TFB Ex. 1). The subpoena was signed by Respondent. (TFB Ex. 1). When Detective Migala appeared in court as required by the subpoena, Respondent admitted to her that he personally prepared the subpoena and that he issued same 1

7 because he felt she needed to be present at the hearing. (TFB Ex. 2). Respondent s issuance of the subpoena in question was a violation of Fla.R.Crim.P (a), which provides that [s]ubpoenas for testimony before the court may be issued by the clerk of the court or by an attorney of record in an action. As a disbarred attorney, Respondent had no authority to issue the subpoena. Rather, like any other pro se litigant, Respondent was required to request the subpoena from the clerk of court. In addition to the foregoing, Respondent has violated Rule of the Rules of Discipline. On January 8, 2008, following his emergency suspension, Respondent was employed by Jorge Calil, Esq. to work as an independent contractor. (T. 83; TFB Ex. 2). Rule 3-6.1(a) of the Rules of Discipline permits an employer to employ a suspended or former attorney who has been disbarred so long as the attorney performs only those duties that may ethically be performed by a nonlawyer. Pursuant to subsection (e) of the same provision, Respondent was required to submit sworn quarterly reports to the Florida Bar attesting to his compliance with the Rule throughout the course of his employment. The Florida Bar specifically placed Respondent on notice of the requirements of Rule in its correspondence following this Court s Order of Disbarment. (TFB Ex. 4). At the final hearing in this cause, Respondent acknowledged receiving the letter placing him on notice of the rule requirements. (T ). Despite this notice, 2

8 Respondent failed to submit any sworn quarterly reports demonstrating compliance with Rule prior to the Florida Bar s filing of the instant Petition to Show Cause. (TFB Ex. 3). Based on the foregoing, The Florida Bar filed a Petition for Contempt and Order to Show Cause on May 27, The matter was referred to the Chief Judge of the Eleventh Judicial Circuit for appointment of a Referee, and by Order dated September 25, 2009, the Honorable Nushin G. Sayfie was appointed Referee. The final hearing in this matter was held on March 15, Prior to commencing the hearing, the Referee denied Respondent s motion for summary judgment. (T. 23). Following introduction and admittance of the Florida Bar s exhibits, the Florida Bar rested its case. (T ). Respondent presented testimony from Mr. Jorge A. Calil, and also testified in his own behalf. Mr. Calil confirmed that Respondent worked for him as a paralegal since approximately January, (T. 55). Mr. Calil further confirmed that both he and Respondent neglected to file the required quarterly reports pursuant to Rule prior to the initiation of Bar proceedings on that issue; but that since June 2009, they have come into compliance with the Rule requirements. (T , 64). As to his failure to file quarterly reports attesting to his compliance with the requirements of Rule 3-6.1, Respondent acknowledged receipt of the Florida Bar s letter referring him to, and placing him on notice of, the requirements of Rule 3-3

9 6.1. (T ). However, Respondent admitted that he did not read the Rule and was unaware that he was required to file quarterly reports. (T ). Rather than accept responsibility for his failure to read and comply with the Rule, Respondent repeatedly asserted that neither the Florida Bar nor the Supreme Court ever informed him with specificity that he was required to file quarterly reports, and so he should not be found in contempt for his failure to do so. (T ). As to his issuance of the subpoena to Detective Migala, and his holding himself out as an attorney in the body of the subpoena, Respondent testified that it was a mistake. Respondent testified that he did not read the Rule governing the issuance of subpoenas. (T. 98). He stated that the subpoena is a form, and as such, he failed to read the language contained in the body of the subpoena, and so he was unaware that it identified him as an attorney. (T. 97). He further testified that he thought it was sufficient that he removed the word Esquire from his signature line, and that he removed his Florida Bar Number from the signature block. (T. 97). The Referee filed her Report of Referee on April 5, The Referee recommended that Respondent be found in contempt of this Court s prior order of disbarment, and made findings of fact and conclusions of law in support of that recommendation. Specifically, the Referee found that Respondent s action of issuing the subpoena to Detective Migala constituted the practice of law, and further that 4

10 Respondent held himself out as an attorney in good standing in the body of the subpoena. (ROR 3, 5). She further found that Respondent intended to issue the subpoena in question, and intentionally caused it to be served on Detective Migala. (ROR 5). Detective Migala appeared in court in reliance on that subpoena. (ROR 5). Respondent s conduct of failing to read the applicable rules and the subpoena itself before signing same, rises to the level of gross negligence sufficient to infer an intentional violation of this Court s order of disbarment. (ROR 5). The Referee further found that Respondent violated Rule of the Rules of Discipline for his failure to submit the requisite sworn quarterly reports after being placed on notice of the Rule and its additional requirements. (ROR 5). There was no excuse for Respondent s ignorance of the Rule 3-6.1(e) requirements. (ROR 5). When evaluated in light of his gross negligence in issuing the unlawful and improper subpoena to Detective Migala, Respondent s failure to file the necessary quarterly reports demonstrates gross negligence sufficient to infer an intentional violation of this Court s order of disbarment. (ROR 5). The Referee found three aggravating factors: prior disciplinary offenses, a pattern of misconduct, and multiple offenses. In mitigation, the Referee found: an absence of a dishonest or selfish motive, personal or emotional problems, timely good faith effort to make restitution or to rectify consequences of misconduct, and full and fair disclosure to disciplinary board and cooperative attitude toward these 5

11 proceedings. (ROR 7). The Referee recommended that Respondent receive a public reprimand, to be administered by publication of this Court s final order of discipline in this matter, and also by his appearance before the Board of Governors. (ROR 6). In making her recommendation, the Referee considered Standard 8.3(a) of the Standards for Imposing Lawyer Sanctions, despite Bar Counsel s argument that Standard 8.1 was the more appropriate governing Standard in this matter. (ROR 7; T.2. at 9, 13). The Florida Bar filed its Petition for Review of the Referee s recommended discipline on June 1, The Florida Bar s Initial Brief on Appeal follows. 6

12 SUMMARY OF THE ARGUMENT The Referee s recommendation of a public reprimand in this matter is contrary to existing case law and the Florida Standards for Imposing Lawyer Sanctions. Relevant case law establishes that a consecutive five year term of disbarment is the appropriate discipline for Respondent, where he engaged in a pattern of grossly negligent conduct by his failure to read and comply with rules applicable to him, and where he intentionally engaged in the practice of law and held himself out as an attorney in good standing by issuing an unlawful and improper subpoena to Detective Migala, and where his conduct constitutes contempt of this Court s prior disciplinary order. Additionally, the Referee erred when she applied Standard 8.3(a), which addresses negligent conduct, to the facts of this case to support her recommendation that a public reprimand was the appropriate discipline. In this case, the Referee made findings that Respondent s issuance of the subpoena was intentional, and that his failure to read the applicable rules and forms that he signed rose to the level of gross negligence sufficient to infer intentional action. Therefore, Standard 8.1, which addresses intentional conduct in contempt of a prior order of discipline, and which supports disbarment, is the appropriate Standard to apply in the present case. 7

13 ARGUMENT THE REFEREE S RECOMMENDATION OF A PUBLIC REPRIMAND DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS; RATHER, A CONSECUTIVE FIVE YEAR TERM OF DISBARMENT IS THE APPROPRIATE SANCTION IN THIS CASE. The Referee s recommendation of a public reprimand in this matter does not comport with existing case law, and should be rejected by this Court. The appropriate sanction for Respondent, where he engaged in a pattern of grossly negligent conduct by his repeated failure to read rules applicable to him and act in compliance therewith, and where he held himself out as an attorney in good standing, and engaged in the practice of law by issuing a subpoena, coupled with the fact that these actions constituted contempt of a prior disciplinary order, is a consecutive term of disbarment. The Supreme Court shall have exclusive jurisdiction to regulate the discipline of persons admitted [to the practice of law]. Art. V, 15, Fla. Const. Therefore, unlike the referee s findings of fact and conclusions as to guilt, the determination of the appropriate discipline is peculiarly in the province of this Court s authority. The Florida Bar v. O Connor, 945 So.2d 1113, 1120 (Fla. 2006). As ultimately it is this Court s responsibility to order the appropriate punishment, this Court enjoys broad latitude in reviewing a referee s recommendation. The Florida Bar v. Anderson, 538 So.2d 852 (Fla. 1989). The 8

14 Court usually will not second-guess a referee s recommended discipline as long as that discipline has a reasonable basis in existing case law and in the Florida Standards for Imposing Lawyer Sanctions. The Florida Bar v. Temmer, 753 So.2d 555 (Fla. 1999). Here, the recommended discipline does not comport with existing case law or the appropriate Standards, and the Referee s recommendation should be rejected. A judgment of disbarment terminates the respondent s status as a member of the bar. Rule 3-5.1(f) of the Rules of Discipline. As a disbarred attorney, Respondent is without the privilege of practicing law or holding himself out to the public and others as able to practice law. See The Florida Bar v. Breed, 368 So.2d 356, 357 (Fla. 1979). In the instant case, the public reprimand recommended by the Referee is not commensurate with Respondent s contemptuous misconduct. The Referee found by clear and convincing evidence that Respondent engaged in the practice of law when he intentionally issued a subpoena to Detective Migala. Florida Rule of Criminal Procedure 3.361(a) specifically denies subpoena power to nonlawyers. The Rule provides that [s]ubpoenas for testimony before the court may be issued by the clerk of the court or by an attorney of record in an action. Fla.R.Crim.P (a). As a disbarred attorney, Respondent had no authority to issue the subpoena. Rather, like any other pro se litigant, Respondent was required to request the subpoena from the clerk of court. 9

15 Additionally, the Referee found that Respondent s issuance of the subpoena in question was intentional, and that Detective Migala appeared in court in reliance thereon. Respondent s assertions that he did not read the Florida Rule of Criminal Procedure applicable to the issuance of subpoenas and was accordingly unaware that his conduct was prohibited does not negate the intentional nature of his conduct. (T. 109). Respondent believed that Detective Migala s presence would be helpful to him at his then pending probation violation hearing. (T ). As such, he wanted to ensure that she would be present in court, and so he set out, quite intentionally, to issue a subpoena and compel her presence. He intentionally printed out a form subpoena that he acknowledges he used for twenty years as an attorney, and he deliberately signed that subpoena and handed it to a process server to be served on Detective Migala. (T. 97). All of these are intentional acts. It is, therefore, intentional conduct that constitutes the practice of law, and contempt of this Court s prior order of disbarment. Further, the Referee found by clear and convincing evidence that Respondent held himself out as attorney in good standing by the language contained in the body of the subpoena. The subpoena reads: Unless you are excused by the attorneys [sic] whose name appears on this subpoena or the Court, you shall respond to this subpoena as directed. 10

16 You are subpoenaed by the following attorney and unless excused from this subpoena by this attorney or the Court, you shall respond to this subpoena as directed. (TFB Ex. 1). The subpoena was signed by Respondent. (TFB Ex. 1). There is no question that Respondent held himself out as an attorney in good standing when he signed this subpoena, containing this language, and caused it to be served on Detective Migala. 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). As such, an additional consecutive five year term of disbarment is appropriate in the instant case. Even if Respondent s actions could be deemed negligent rather than intentional, the conduct was still sufficient to be deemed an intentional violation of this Court s prior order of disbarment. The Referee specifically found that Respondent s repeated failure to read the rules applicable to him, especially with regard to his sworn employment affidavits, and to the rules governing issuance of subpoenas, as well as his failure to simply read the one page subpoena he issued, rose to the level of gross negligence sufficient to infer intentional conduct. See Rowe v. Willie, 415 So.2d 79 (4 th DCA 1982); Sanchez-Velasco v. State, 570 So.2d 908 (Fla. 1990). Respondent s actions of holding himself out as an attorney in good standing 11

17 and engaging in the practice of law while disbarred, as well as his failure to file the requisite employment affidavits, require a more severe sanction than the public reprimand recommended by the Referee. This Court must reject the Referee s recommendation because Respondent was already disbarred 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 a public reprimand does not comport with this Court s prior jurisprudence. As an already disbarred attorney, the appropriate sanction is an additional consecutive five year term of 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 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 public reprimand does not serve these purposes, especially in light of the fact that Respondent s behavior exhibits a 12

18 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, in this case, the Referee erred when she applied Standard 8.3(a) of the Florida Standards for Imposing Lawyer Sanctions to the facts of this case to support her recommendation of a public reprimand. Standard 8.3(a) indicates that a public reprimand is the appropriate sanction for a lawyer that negligently violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession. Application of this Standard is not proper where the Referee found that Respondent s conduct in issuing the subpoena was intentional, and further that Respondent s repeated failure to read and comport with the rules applicable to him rose to the level of gross negligence sufficient to infer intentional conduct. The Referee s findings took the Respondent s conduct outside of the realm of simple negligence and rendered this Standard inapplicable to the present case. Where the Referee made findings of intentional conduct, the appropriate Standard to apply is 8.1. Standard 8.1 provides that disbarment is appropriate 13

19 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, Respondent was disbarred by order of this court dated November 20, 2008, and that order is still in effect. Respondent violated the terms of the order of disbarment through his intentional acts of engaging in the practice of law and holding himself out as an attorney in good standing, and by his failure to comply with Rule of the Rules of Discipline. Further, Respondent s actions caused harm to the legal system and at least one member of the public. 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 Criminal Procedure. Furthermore, Detective Migala, a member of the public, was harmed when she received the subpoena and was required to appear in court in reliance on same. Therefore, based on the facts and circumstances of this case, Standard 8.1 is the appropriate Standard to apply. As such, a consecutive five year term of disbarment is the appropriate sanction in the instant case. 14

20 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 a public reprimand and impose instead a consecutive five year term of 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

21 CERTIFICATE OF TYPE, SIZE AND STYLE I HEREBY CERTIFY that the Initial 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 Initial Brief were sent via Federal Express, airbill no , (and a true and correct copy was sent via electronic mail at 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 and mailed to Peter Marcellus Capua, Respondent, 19 West Flagler Street, Suite 301, Miami, Florida 33130; and mailed to Kenneth L. Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399; on this day of July, JENNIFER R. FALCONE MOORE Bar Counsel 16

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