IN THE SUPREME COURT OF FLORIDA (Before a Referee) EUGENE H. STEELE, The Florida Bar File No ,050(17B) Initial Brief of Respondent-Petitioner

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, vs. Complainant, CASE NO. SC TFB Case No ,050(17B) EUGENE H. STEELE, The Florida Bar File No ,050(17B) Respondent-Petitioner. / Initial Brief of Respondent-Petitioner Eugene H. Steele, Esquire Respondent-Petitioner 1061 West Oakland Park Blvd. Suite 101 Fort Lauderdale, Florida (954) Fla. Bar no.: TABLE OF CONTENTS Page

2 Statement of the Case and Facts 5 Summary of Argument 5 Issues Presented 1. The LETTER which is the subject matter of this appeal did 6 not violate R.Regulating Fla. Bar and 4-8.4(d) under the circumstance it was written. 2. This action should have been stayed until the under lying 16 action to recover the stolen funds had concluded. 3. The Florida Bar violated mandatory Rule chapter 3, 17 (a) of the Rules Regulating the Florida bar. 4. The Florida Bar engaging in exparte communications 18 with the Referee. 5. The sole witness for the Respondent-Petitioner should have 19 been allowed to testify over the objection of the Florida Bar. 6. The Respondent-Petitioner did not misstate the statutory 21 deadline with which to comply with Florida Statute Conclusion 22 Transcript and taxable cost 2

3 23 TABLE OF CITATIONS Page Chestnut v. State, 516 So. 2d 1144(Fla. 2001) 6, 10, 20 The Florida Bar v. Martocci,791 So.2d 1074(Fla. 2001) 10 The Florida Bar v. Wasserman, 675 So.2d 103 (Fla. 1996) 11 The Florida Bar v. Uhrig, 666 So.2d 887 (Fla. 1996) 12 The Florida Bar v. Buckle, 771 So.2d 1131,1133(Fla.2000) 12 3

4 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, vs. Complainant, CASE NO. SC TFB Case No ,050(17B) EUGENE H. STEELE, The Florida Bar File No ,050(17B) Respondent-Petitioner. / Initial Brief of Respondent-Petitioner Statement of the Case and Facts Respondent-Petitioner is a member of the Florida bar in good standing admitted to practice in He was charged with a violation of R.Regulating Fla. Bar and 4-8.4(d) at the conclusion of the hearing where only the complainant testified and the Respondent-Petitioner did not attend, the referee concluded 4

5 Respondent-Petitioner was guilty and recommended a public reprimand. Respondent-Petitioner represents an actor who received dental treatment from the complainant. The actor contends that he was intentionally over charged for dental services and the actors insurance company confirmed the overcharge. The Dentist complainant filed his complaint with the Florida Bar in regard to a letter written by the Respondent-Petitioner and reviewed by the actor client (letter July 5, 2001). The dentist Complainant is a Defendant in an action to recover the stolen funds of the actor John Early and is the subject of an investigation by the Agency for Health Care for Fraud in regard to this matter. Summary of Argument The LETTER which is the subject matter of this appeal did not violate R.Regulating Fla. Bar and 4-8.4(d) under the circumstance which it was written. The initial letter did not state to the complainant the statutory deadline with which to comply with Florida Statute The letter was an attempt to recover funds from a thief and is not subject to R.Regulating Fla. Bar and 4-8.4(d) Chestnut v. State, 516 So. 2d 1144(Fla.2001) The Florida Bar engaged in improper conduct by failure to follow Rule chapter 3, (a) of the Rules Regulating the Florida bar, engaged in exparte communications with the Referee, prevented the sole witness for the Respondent-Petitioner from testifying and should have stayed this action until the under lying action to recover the stolen funds had concluded. 5

6 ARGUMENT POINT ONE The LETTER which is the subject matter of this appeal did not violate R.Regulating Fla. Bar and 4-8.4(d) under the circumstance it was written. The Florida Bar charged the Respondent-Petitioner with violation of Fla. Bar and 4-8.4(d) in its complaint the Bar charges the Respondent-Petitioner is guilty of a felony Florida Statute extortion. The Respondent-Petitioner has not been charged by any legal authority with a felony: Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s , s , or s It is obvious just from a review of one case that such a charge is absurd: Chestnut v. State, 516 So. 2d 1144(Fla. 2001) After the victim stole guns, appellant put a pistol to the victim's head and asked where the guns were. Apparently not having received the desired response, 6

7 appellant shot the victim to death. Appellant challenged his convictions for manslaughter and armed extortion. The court affirmed the manslaughter conviction, holding that appellant's words and actions were sufficient to constitute a threat to shoot or kill if the victim failed to give appellant his guns back to him. However, the court reversed the armed extortion conviction because there was no malicious threat to do anything forbidden by the extortion statute, Fla. Stat. ch (1985). The statute did not make it unlawful to threaten a thief to require him to return stolen property. Nevertheless, the force used by appellant was clearly excessive, and the elements of manslaughter were adequately proven. There was a limit to the violence a person could use in protecting himself and his property, and the court emphasized that the use of deadly force was rarely justified legally. If you can put a gun to the head of a thief and not be guilty of then you certainly ought to be able to write him a letter and not be guilty of R.Regulating Fla. Bar and 4-8.4(d)! The nature of the subject letter was to recover funds for a theft. The Florida Bar s rule is so broad as to be vague. Because the Florida Bar is seeking a penalty the rule requires a strict interpretation. What the Florida bar did not tell the Referee is that Florida Statute requires the complainant Civil remedy for theft. represented or not be notified of the claim for civil theft. Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of the provisions of ss has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $ 200, and reasonable attorney's fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $ 200 or the treble 7

8 damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft by the person making the written demand. Further, the Florida Bar did not provide the referee with the statement from the client of the Respondent-Petitioner that was provided to the Seventeenth Judicial Circuit Grievance Committee B. I was a patient of Dr. Richman in March He falsely represented to me that I owed him money for services not covered under my insurance policy and said that if I paid cash I would receive a 10% discount and that that amount would be $ less $50.00 or $ I later learned that he had lied to me and over charged me $ When I applied some pressure on him, in the form of a factual letter I have enclosed to you here from my insurance company he sent me a check for $ but he still owes me $ I called his office several times and he refused to talk to me or return my calls.. In short this man has stolen my money and I am very appreciative of Mr. Steele s help. I will now take the action set forth in his letter. Nor did they advise the referee that the complainant has been charged with fraud by the Agency for Health Care Consumer Service Unit as a result of this incident. Without belaboring the obvious the nature and tone of the letter were required under the circumstances presented. However, The Florida Bar cites four cases in support of its position. Martocci (The Florida Bar v. Martocci,791 So.2d 1074(Fla. 2001)) in a divorce and child custody case, he made disparaging and profane remarks to belittle and humiliate the opposing party and her attorney, calling the client crazy and a nut case, making 8

9 demeaning facial gestures and sticking his tongue out at the client and threatening to pummel her father. He told opposing counsel that she was a stupid idiot and told her she should go back to Puerto Rico. How the Florida Bar can make any comparison to this fact pattern and the case here in is a mystery. In any event it does not deal with a thief. The next case (combined three cases)wasserman (The Florida Bar v. Wasserman, 675 So.2d 103 (Fla. 1996))is equally inappropriate and does not deal with a thief. The recommendation of guilt in case number 83,818 is based on the following findings of fact. On August 23, 1993, Wasserman attended a hearing before Judge Bonnie Newton and lost his temper after a ruling by Judge Newton. He stood and shouted his criticism, he waved his arms, he challenged Judge Newton to hold him in contempt and displayed his arms as if to be handcuffed, he stated his "contempt" for the court, he banged on the table and generated such a display of anger that the bailiff who was present felt it necessary to call in a backup bailiff. Immediately thereafter, outside the hearing room, in the presence of both parties and opposing counsel, Wasserman stated that he would advise his client to disobey the court's ruling. In case number 84,814, the recommendation of guilt is based on the following findings of fact. On April 14, 1994, after getting an unfavorable response to a question asked over the telephone of Judge John Lenderman through his judicial assistant, Wasserman said to the assistant, Cynthia Decker, "You little motherf-----; you and [**3] that judge, that motherf----- son of a b----." Ms. Decker was so upset by the incident that she had to leave the office early that day. The next case Uhrig (The Florida Bar v. Uhrig, 666 So.2d 887 (Fla. 1996),deals 9

10 with a letter. Now we are closer to the facts here. We find that Uhrig's letter to Carrera was devoid of any purpose other than humiliation and disparagement. The inclusion of an inflammatory simile comparing Carrera's opinions to body odor is illustrative of the letter's overall tone. Furthermore, the letter expressly rejects the prospect of settlement or further discussions; instead, Uhrig tells Carrera that all further proceedings will be in court. Predicated upon these facts, we agree with the referee's recommendation as to Uhrig's guilt. But notice the underlined sections. The sole purpose was to humiliate and no prospect of settlement. Contrary to the letter here dealing with a thief. Finally, Buckle, (The Florida Bar v. Buckle, 771 So.2d 1131,1133(Fla.2000). He essentially threatens to take her away from her job and her children and to expose her to ridicule, contempt, and hatred. He also threatens to expose and delve into the circumstances surrounding the murder of one of her family members. As the referee found, the obvious intent of these threats, comments, and inquiries was to intimidate Gibas into abandoning her criminal complaint against Spaulding. Once again the fact pattern shows the degree of threats that are required for action. There is no case cited by the Florida Bar that deals with a thief. Because that case favors the Respondent-Petitioner. There is no case cited that on its own, without requiring a leap of faith and an abandonment of the principles of stari decisis which can support the Florida Bar. On the point of malice a necessary element A threat is malicious if it is made intentionally and without any lawful justification. Alonso v. State, 447 So. 2d

11 Let us now visit the offending letter to determine if all the allegations of the Florida Bar s Complaint was true if the Bar could prevail. Respondent-Petitioner states there are no circumstances with would allow the Bar to prevail as a matter of law. Examining this offending letter sentence by sentence (with comments) we find: Dear Dr. Richman: I have known John Early for over 20 years and it was my great pleasure to accept representation of him regarding this matter. (Certainly the Florida bar must concede there is nothing criminal or unethical in this sentence) Because you are a Dentist I know you are intelligent (this later proved to be a false assumption but nothing criminal or unethical here) I know intelligent people sometimes do stupid things. (Nothing criminal here) You have done a stupid thing (This is a value judgment nothing criminal here) Based on the information I have, you are holding Mr. Early s funds.(no assertion here as it is qualified based on the information I have nothing criminal here) This is a no-no. (Keeping another s money is improper, nothing criminal here) So here is what I am going to do. I am going to give you the opportunity to correct your error and mail a check payable to Eugene Steele trust account or John Early for the correct amount. (Certainly an opportunity to settle the matter without litigation, no dollar amount is stated, nothing criminal here) If the check is not received in 5 days, I will file suit against you for civil theft,(no time period for when suit will be filed) which carries triple damages and attorney s fees. (This was intended to fulfill the notice requirement of however a subsequent notice had to be sent as no dollar amount was stated) I will file a complaint with the Board of Dentistry Consumer members Benjamin Poitevent and Gloria Fisher. (Certainly that is permitted as that is the function of that board it is the exercise of a legal right. Had the client s money been returned there would have been no reason to file a complaint. The complaint was filed and on information and belief the Complainant was charged with Fraud. The exercise of a legal right in dealing with a thief is not a threat) I will contact the press, specifically consumer protection on one of the TV channels. (This referees to Help Me Howard on a local TV station. For the Bar to succeed on this claim the referee must believe 11

12 that the Respondent-Petitioner has some control over the press. The function of that program is to investigate. That program has not yet been contacted.) Then I will think of more creative things. After 30 years of practice I have an unbelievable list of creative things. (This says nothing) Perhaps, you thought, well this is a small amount and no lawyer would take this case. (In fact most lawyers would not accept representation of this small matter) But 20 years of friendship has a greater value than money. (This says something but not relevant here) So ask yourself. do I feel lucky? (This was taken from a movie) Oh, if you decide not to send the check and think we will settle after filing suit-wrong. (This was to explain that cost are associated with suit and therefore all additional cost are added to the initial demand)we will take depositions. (Naturally) I think I will have to fly all over the country to get information (the insurance company and their attorneys are located in the far west and northeast) Guess who will pay for that. (Costs are taxable) By the way I fly first class.( I think in 30 years I have flown coach three times and as an airline pilot I flew regularly) Let us get through this.( Last offer to settle) Write the check. The Respondent-Petitioner attended on Thursday February 28, 2002 a four and one-half hour seminar on ethics and malpractice presented by the Broward Bar. The letter was read to the group. It was very popular and brought loud laughter. Two speakers who are expert in the field both expressed the opinion they could not understand why the Florida Bar would bring such charges. The attorney for the Florida Bar has expressed the opinion that the committee had great difficulty in bringing the charges. Rudeness or bad test is not a reason to violate an attorney who has never had a violation. Under the law it appears that the Respondent-Petitioner could point a gun at the head of the Complainant and demand that he return the clients stolen money and not be guilty of a crime. The Florida Bar is attempting to expand the ethics rules 12

13 beyond their intent with this case. Is it improper to say if you do not return my money I will sue you? Is it improper to say I will report you to your licensing body if you do not return the money you stole from me? Is it improper and more importantly unethical to say I will turn this over to a consumer protection section of the local Television Station to investigate if you do not return the money you stole from me? Here the Florida Bar is not on the side of the angels. They have chosen to be on the side of a thief. Such a decision would make it ok to steal small amounts of money as no lawyer will take the case. The Respondent-Petitioner is a member of several other Bars in other jurisdictions, Agencies and Federal Courts. He has and may be again a candidate for public office such a false scandalous matter would not be published by the Florida Bar if he were not issuing a privileged communication. While some high minded formal law firms in tall buildings might consider the letter offensive and unprofessional the fact is they would not have undertaken this case. Based on the evidence prior to the letter being written and currently this was an attempt to recover funds from a thief. In that regard it was mild. It certainly was not a violation of the Rules governing the Florida Bar under the circumstances. POINT TWO This action should have been stayed until the under lying action to recover the stolen funds had concluded. On April 15 th 2002 a Complaint was filed in Dade County Circuit Court on behalf of John Early, 13

14 against the Complainant Dentist Hal Richman, Civil action number (CA Division 30). This created an immediate conflict of interest between the client Early and Respondent-Petitioner. If the Respondent-Petitioner were to appear at the Hearing and question the Complainant Richman the entire case strategy setting forth the Fraud would have been disclosed. Given the choice between protecting the client, Early s, interest at a forth coming trial or protecting the interest of the Respondent-Petitioner; there was no choice. The Respondent-Petitioner could not appear at the Hearing and question Richman. The Respondent-Petitioners Motion to stay of April 15 th 2002, should have been granted until the civil trial had concluded. Further, the issue of The Complainant as a thief would have been judicially established. POINT THREE The Florida Bar violated mandatory Rule chapter 3, (a) of the Rules Regulating the Florida bar. On April 10, 2002, Respondent-Petitioner inquired regarding the list of Grievance committee members. Respondent-Petitioner was advised by Florida Bar Counsel that the list was not correct. The list is required to be furnished under Rules Regulating the Florida bar, chapter 3, Rule (a) prior to the committee meeting on the complaint. The identical list was furnished on April 11 th 2002 it was also incorrect. Respondent-Petitioner objected to the new members disclosed for the first time in a pleading in response to this Motion to Refer the Matter to a New committee of April 15, 2002 as the initial committee members had already reached a determination. The process was tainted and in violation of the Florida Bar s own mandatory rules. The Florida bar had the proper information at the time it sent out the erroneous lists. Further, the same erroneous list was again sent on April 11 th and until the Respondent-Petitioner made further inquiry. At the time of 14

15 Respondent-Petitioner s Motion, April 15 th Respondent-Petitioner has not been provided with the correct list. POINT FOUR The Florida Bar engaged in exparte communications with the Referee The exparta communications with the Referee consisted of the Florida Bar providing a proposed Report of Referee at the end of the Hearing and not providing a copy to Respondent-Petitioner until after the Referee issued his Report weeks later. It is basic to the practice of law that surprise or bias should not be permitted. Here we have both. At the Final Hearing, which was not attended by Respondent-Petitioner the Florida Bar, provided a proposed Report of Referee to the Referee. The Attorney for the Bar refused after repeated request to the Referee and the Bar Attorney to provide a copy to the Respondent-Petitioner until after the Referee issued his report. (Letter Memorandum to Referee). The report contained for the first time the reference to the requirements of Florida Statute , Civil Theft time periods not charged by the committee. Respondent-Petitioner had asked the Referee specifically to have the Attorney or himself provide a copy of the proposed report to Respondent-Petitioner so that the he could comment upon it or submit his own proposed report. The Florida Bar intentionally hid the proposed report from the Respondent- Petitioner. POINT FIVE The sole witness for the Respondent-Petitioner should have been allowed to testify over the objection of the Florida Bar. Respondent-Petitioner sent a letter carried by actor Early to the Final Hearing. It is attached to the Report of Referee. It states in part Mr. John Early will testify on my behalf in accordance with his prior statement to the Grievance committee Mr. Early s statement referred to the Complainant stealing his money. One of the issues here was the status of the Complaint as a thief under Chestnut v. State, 516 So. 2d Mr. Early was present at the Final Hearing and prepared to testify and document the Complainant s status as a thief but Early was not allowed to testify over the objection of the Florida Bar. The Respondent-Petitioner had no personal knowledge of the theft from Mr. Early. Only Mr. 15

16 Early could testify to it. But he was turned away from the Final Hearing and not permitted to testify. The Referee wrongly concluded: By virtue of the Respondent s non-appearance at the final hearing, this testimony (Dr. Richman) was unrebutted. Mr. Early should have been allowed to testify about the Theft of his money by the Complainant. 1. That portion of the Report of Referee that concludes: E. By virtue of the aforesaid conduct, respondent knew, or should have known, that he disparaged, humiliated and intimidated or attempted to intimidate an unrepresented potential litigant. The conduct here relates to a letter directed solely to the Complainant. Each item referred to in the letter has been accomplished other than referral to a consumer advocate of the press. The matter is under investigation by the appropriate dental licensing authority. Suit has been filed. There is no case previously cited in the Referee s Report where the conduct of writing a letter of this nature is actionable by the Florida Bar. Such a case would so lower the test that only approved form letters to a thief, well represented defendant or Dentist would be allowed. This standard should not be lowered to that extent. POINT SIX The Respondent-Petitioner did not misstate the statutory deadline with which to comply with Florida Statute That portion of the Report of Referee that concludes: The correspondence was drafted and disseminated in an effort to influence the out come of a dispute between respondent s client, Early and Dr. Richman, by misstating the statutory deadline within which to comply with Florida Statute , Civil Theft, which is thirty (30) days and not five (5) as respondent represented in his letter. The Respondent did not attend the hearing. The only evidence on this point is the admitted letter. The initial charge by the Florida Bar did not refer to the above matter. It is a fiction created by the attorney for the Florida Bar and acceded to by the Referee. This fiction was disclosed only to the Referee in a proposed Report of Referee at the hearing and not served on the Respondent-Petitioner until after the 16

17 Referee issued his report. The statutory deadline for Florida Statute , Civil Theft, was not misstated it was not stated. The language of the letter does not state when suit will be filed and there is no evidence to support the conclusion of the Referee. The letter states: if the check is not received in 5 days, I will file suite against you for civil theft, which carries triple damages and attorney s fees. For the conclusion of the Referee to be correct the letter must state: I will file suit against you immediately or 15 days (in some time period under 30 days). In fact the requirements of Florida Statute , Civil Theft had not been met nor had the dollar amount been determined at the time of the initial letter. A subsequent letter was send that met the Statutory requirements. The Florida Bar had a copy of the letter but did not disclose it to the Referee. Suit in fact was filed against the complainant on April 15 th 2002 well before the hearing on the matter May 2 nd 2002 and The Action filed against the complainant is for Fraud and Breach of Contract. CONCLUSION The charges against the Respondent-Petitioner should be dismissed and the Florida Bar should be sanctioned for its conduct in this matter with cost assessed against the Florida Bar. In the alternative the matter should be reassigned to a new committee and heard De novo after the conclusion of the underlying cause of Early v. Richman (CA Division 30). TRANSCRIPT and TAXABLE COST No transcript has been provided for the following reasons: 1. The Respondent-Petitioner did not attend. 2. The relevant statements of the complainant are contained in the Referees Report and he was the only witness. 3. The nature of the proceedings prior to the Hearing is sufficient to find for the Respondent-Petitioner. 4. The Respondent-Petitioner has been unemployed since September 11, 2002 and it would place a heavy financial hardship on him to pay for the transcript. 5. Notice dated November 15, 2002 mailed November 18, 2002 and received November 20, 2002 advised that a brief was due. There has not been sufficient time to order a transcript. 17

18 TAXABLE COST 1. The Florida Bar has listed as taxable cost reporter fees where never used for any purpose other than to attend hearings other than the Final Hearing. This cost should be stricken in the amount of $120. Eugene H. Steele, Esquire Respondent-Petitioner 1061 West Oakland Park Blvd. Suite 101 Fort Lauderdale, Florida (954) Fla. Bar no.: CERTIFICATE OF SERVICE I HEREBYCERTIFY that true and correct copies of the foregoing have been furnished to Joel M. Klaits, Esq., The Florida Bar, 5900 North Andrews Avenue, Suite 835, Fort Lauderdale, Florida 33309, and Staff Counsel, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida by U.S. mail on November 25th Eugene H. Steele CERTIFICATE OF COMPLIANCE I HEREBYCERTIFY that the brief complies with Rule (a) (2). Eugene H. Steele 18