IN THE SUPREME COURT OF FLORIDA (Before a Referee)

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, v. Complainant, SAMUEL A. MALAT, Case No. SC TFB File No ,300(2A) Respondent. / REPORT OF THE REFEREE I. SUMMARY OF PROCEEDINGS Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the following proceedings occurred: On November 14, 2007, The Florida Bar filed its Complaint against Respondent as well as its Request for Admissions in these proceedings. Respondent never replied to The Florida Bar s Request for Admissions; on January 9, 2008 The Florida Bar filed a Motion for Summary Judgment which hearing was held on February 11, Also on February 11, 2008, a final hearing was held in this matter. All items properly filed including pleadings, recorded testimony (if transcribed), exhibits in evidence and

2 the report of referee constitute the record in this case and are forwarded to the Supreme Court of Florida. II. FINDINGS OF FACT A. Jurisdictional Statement. Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. B. Narrative Summary Of Case. In addition to membership in The Florida Bar, Respondent, had been admitted to The New Jersey Bar and was subject to the disciplinary authority of the Supreme Court of New Jersey. On June 5, 2007 the Supreme Court of New Jersey disbarred Respondent from practicing law in the state of New Jersey. The misconduct upon which the disbarment was based consists of three allegations. The first allegation of the current discipline resulted from Respondent being hired by Arthur Bailey to represent him in several legal matters, one of which was collecting rent from Mr. Bailey s tenant. Respondent never memorialized his fee in writing to Bailey, but he informed Bailey he would retain ten percent of each month s rent. From September 2001 through July 2002 Respondent received $5840 in rent. Though he was only entitled to $584, instead he paid Bailey $1116, he paid himself $ and he paid his bookkeeper $ At no time did Respondent pay 2

3 Bailey monthly when rent was received nor did he maintain the money received in his trust account. Additionally, Respondent did not provide distribution statements informing Mr. Bailey that disbursements were made to Respondent or Respondent s bookkeeper. Simply put: Respondent did not share information with Mr. Bailey about the lease payments received and he ignored Mr. Bailey s requests for a bill for services rendered. For this first allegation, the New Jersey Bar found Respondent guilty of violating Rules 1.1(a) (gross neglect), 1.5(b) (failure to communicate, in writing, to a client not regularly represented, the basis or rate of his fee), 1.15(a) (knowing misappropriation of client funds), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and 5.3(a), (b) and (c) (responsibilities regarding non-lawyer assistant), Rules of Professional Conduct, The New Jersey Bar. The second allegation raised involved Respondent s hiring of a paralegal as the office manager of his law firm from March 1997 through October The paralegal had a criminal record for offenses that included passing bad checks, forgery and obtaining CDs by fraud or forgery. Respondent knew of this criminal history and knew that the paralegal had served time in jail, yet hired this paralegal in the office manager position which had full access to Respondent s trust and business accounts. At various times during the paralegal s employment, both he and Respondent 3

4 instructed office staff to draft trust account checks to cash, which were then cashed and the money was returned to either the paralegal or Respondent. Respondent took personal control of the business and trust accounts in October 2001 when he fired the paralegal. For this second allegation, Respondent was found guilty of violating Rule 1.1(a) (gross neglect), 1.15(a) (failure to safeguard client funds) and 5.3(a), (b) and (c) (failure to supervise non-lawyer assistants), Rules of Professional Conduct, The New Jersey Bar. The third count alleged arose during the investigation itself because Respondent ignored three attempts by the district ethics committee and the New Jersey Office of Attorney Ethics to obtain Respondent s reply to the grievance. When Respondent did appear in response to a demand audit, he did not bring any of the books and records from July 1, 2001 to December 31, 2002, Mr. Bailey s client file or the completed Attorney Bank Account Disclosure form, as required, though he said he would do such. For this third allegation, Respondent was found guilty of violating Rule 8.1(b) (Bar admission and disciplinary matters), Rules of Professional Conduct, The New Jersey Bar. III. RECOMMENDATIONS AS TO GUILT. I recommend that Respondent be found guilty of violating Rules 4-1.1(a) (Competence), 4-1.5(a) (Fees and Costs for Legal Services; Illegal, Prohibited, or 4

5 Clearly Excessive Fees and Costs), (Safekeeping Property), 4-5.3(a), (b) and (c) (Responsibilities Regarding Non-lawyer Assistants), Rule 4-8.1(b) (Bar Admission and Disciplinary Matters; Failure to Disclose), and 4-8.4(c) (Misconduct; Dishonesty, Fraud, Deceit or Misrepresentation) of the Rules of Professional Conduct of The Florida Bar. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that he be disciplined by: A. Disbarment. B. Payment of The Florida Bar's costs in these proceedings. V. PERSONAL HISTORY, PAST DISCIPLINARY RECORD AND AGGRAVATING AND MITIGATING FACTORS following: Prior to recommending discipline pursuant to Rule 3-7.6(m)(1), I considered the A. Personal History of Respondent: Age: 47 years old Date admitted to the Bar: April 25, 1991 B. Aggravating Factors: 9.22(b) dishonest or selfish motive; 5

6 9.22(c) 9.22(e) a pattern of misconduct; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; 9.22(h) 9.22(i) vulnerability of victim; and substantial experience in the practice of law. Prior Discipline: None in Florida; however there are six previous cases in New Jersey in which Respondent received two public reprimands (2002), two consecutive 3-month suspensions (2003), an admonishment (2006) and a six-month suspension (2006). C. Mitigating Factors: None. VI. 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, pursuant to to Rule 3-7.6(q)(1)(I), Rules of Discipline $ 1, Court Reporter Fees and Transcripts Investigative Costs and Expenses TOTAL $ 1, It is recommended that such costs be charged to respondent and that interest at the statutory rate shall accrue and be deemed delinquent 30 days after the judgment in this 6

7 case becomes final unless paid in full or otherwise deferred by the Board of Governors of The Florida Bar. Dated this day of, Honorable Patrick Kevin Davey, Referee Leon County Courthouse 301 South Monroe Street, Room 365A Tallahassee, Florida CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida , and that copies were mailed by regular U.S. Mail to KENNETH LAWRENCE MARVIN, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida ; KRYS GODWIN, Bar Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida ; and SAMUEL A. MALAT, Respondent, at his record Bar address of 214 White Horse Pike, Haddon Heights, NJ , on this day of February, Honorable Patrick Kevin Davey, Referee 7