IN THE SUPREME COURT OF FLORIDA (Before a Referee) AMENDED REPORT OF REFEREE (As to Font Type Only)

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, v. Case No. SC [TFB Case No ,202(05A)(OSC)] SUZANNE MARIE HIMES, Respondent. / AMENDED REPORT OF REFEREE (As to Font Type Only) The Final Hearing previously scheduled for November 1, 2010 was cancelled in view of Respondent's statements at the hearing of September 1, I. Summary of Proceedings: Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to the Rules Regulating The Florida Bar. The bar propounded discovery on respondent, including a Request for Admissions, which respondent failed to answer. Thereafter the bar filed a Motion to Compel Answers to Interrogatories and Request for Production and a Motion for Order Declaring Complainant s Requests for Admission to be Admitted. A telephonic hearing on these motions was held on September 1, 2010, at which time respondent advised this referee that she was knowingly and voluntarily agreeing to disbarment as she did not wish to contest the disciplinary proceedings any further. The pleadings, notices, motions, orders, transcripts and exhibits, all of which are forwarded to The Supreme Court of Florida with this report, constitute the record in this case. The following attorneys appeared as counsel for the parties: For The Florida Bar - Jan K Wichrowski For The Respondent - pro se II. Findings of Fact as to Each Item of Misconduct of Which the Respondent Is Charged: Based upon the pleadings in this matter and the affidavits attached thereto, this referee finds: A. On January 27, 2009, the Supreme Court of Florida entered an order in Case No. SC suspending respondent indefinitely until further order of the Court. Respondent was suspended effective 30 days from 1

2 January 27, Pursuant to the January 27, 2009 order, respondent had 30 days to implement any steps and/or procedures to protect her clients interests after the effective date of her suspension. Respondent did not move this court for an extension of time to close out her practice nor was one granted. B. Thereafter, on September 11, 2009, the Supreme Court of Florida entered an order in Case No. SC suspending respondent for one year, effective immediately, for continuing to practice law after the effective date of her indefinite suspension. No further orders of this Court have been entered reinstating respondent to the practice of law. C. Bank account records, received by The Florida Bar from Bank of America pursuant to a subpoena, clearly shows activity in Suzanne M. Himes P.A. IOTA Trust Account ********2991 from March 2009 through July 2009, including four separate deposits and the issuance of 11 separate checks, after the effective date of her suspension. The checks issued from her IOTA Trust Account were to disburse settlement monies after her suspension effective February 27, D. Respondent remains the attorney of record for the plaintiff in a worker s compensation styled Garvacio Aranca v. MRMC, OJCC Case Numbers MRH. The case settled in October Respondent had ample time prior to her suspension to resolve any pending fee issues. Respondent took no action to resolve any pending fee issues until the opposing party filed a motion to dismiss for lack of prosecution on November 11, E. On or about November 20, 2009, approximately 9 months after the effective date of her indefinite suspension and 10 weeks after the effective date of her one-year suspension, respondent filed Response to E/SA Motion to Dismiss dated November 18, 2009, in the above-referenced worker s compensation case, after her suspension. The pleading filed by respondent makes no reference to her suspension status. There is no provision allowing a suspended attorney to file a pleading on behalf of someone as a former counsel. F. Respondent failed, in Garvacio Aranca v. MRMC, to notify the presiding judge, the opposing counsel, or her client of her suspension status and inability to practice law. At no time did respondent move to withdraw from the above-referenced worker s compensation case and respondent remains attorney of record therein. 2

3 G. To date, respondent remains noncompliant with R. Regulating Fla. Bar 3-5.1(g), which requires notice of the above-mentioned suspensions to all of her clients with matters pending, all opposing counsel or co-counsel in those matters, and all courts, tribunals, or adjudicative agencies before which the respondent is counsel of record. III. Recommendations as to Whether the Respondent Should Be Found Guilty: As to the allegations in the bar s Petition for Contempt and Order to Show Cause, this referee makes the following recommendations as to guilt or innocence: I find respondent guilty of contempt for her failure to comply with this Court s suspension orders of January 27, 2009 and September 11, IV. Rule Violations Found: 3-5.1(g) for failing, upon service on the respondent of an order suspension, to furnish a copy of the order to: (1) all of the respondent's clients with matters pending in the respondent's practice; (2) all opposing counsel or co-counsel in the matters listed in (1), above; and (3) all courts, tribunals, or adjudicative agencies before which the respondent is counsel of record; for practicing law in violation of the regulation of the legal profession in the lawyer s home state. V. Recommendation as to Disciplinary Measures to Be Applied: Respondent is to be disbarred effective immediately, noting that Respondent is suspended and no time is needed to close out her practice. Disbarment is appropriate pursuant to Standard 8.1 of the Standards for Imposing Lawyer Sanctions 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 or has been suspended for the same or similar misconduct, and intentionally engages in further similar acts of misconduct. The following aggravating factors are applicable in the instant case: 9.22(a) prior disciplinary offenses; (b) dishonest or selfish motive; 9.22(c) a pattern of misconduct; 9.22(d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; and 9.22(i) substantial experience in the practice of law. There are no applicable mitigating factors in the instant case. Disbarment is appropriate in light of this Court's ruling in The Florida Bar v. Bauman, 558 So.2d 994 (Fla. 1990). Bauman was disbarred for the practicing law while suspended. The Court specifically stated [w]e can think of no person less likely to be rehabilitated than someone like respondent, who willfully, deliberately, and continuously, refuses to abide by an order of this Court. Respondent has now 3

4 twice disregarded orders of suspension and continued to practice law while unauthorized to do so. Thus disbarment is the only appropriate discipline. The Supreme Court of Florida has consistently held that disbarment is the appropriate sanction for continuing to practice law while suspended. See, The Florida Bar v. Bitterman, 33 So. 3d 686 (Fla. 2010) (holding oneself out as a member in good standing while suspended); The Florida Bar v. Forrester, 916 So. 2d 647 (Fla. 2005) (practicing law while suspended); and, The Florida Bar v. Greene, 589 So. 2d 281 (Fla. 1991) (performing legal services for a friend while suspended). It is noted again that Respondent indicated she was not opposing disbarment in this matter. VI. Personal History and Past Disciplinary Record: After the finding of guilt and prior to recommending discipline to be recommended pursuant to Rule 3-7.6(m)(1)(D), this referee considered the following personal history and prior disciplinary record of the respondent, to wit: Age: 49 Date admitted to bar: June 28, 1990 Prior disciplinary convictions and disciplinary measures imposed therein: In The Florida Bar v. Himes, Case No. SC , respondent was suspended until further order of the Court on January 27, 2009, for her failure to comply with a subpoena. Thereafter, in The Florida Bar v. Himes, Case No. SC , respondent was suspended for one year on September 11, 2009, for continuing to practice law after the effective date of her indefinite suspension. VII. Statement of Costs and Manner in Which Costs Should be Taxed: this referee finds the following costs were reasonably incurred by The Florida Bar. A. Referee Level Costs: 1. Court Reporter Costs a. July 22, 2010 Hearing $ b. Sept. 1,2010 Hearing $ B. Administrative Costs $ 1, Pursuant to Rule 3-7.6(q)(1)(I), Rules of Discipline TOTAL ITEMIZED COSTS: $ 1,

5 It is apparent that other costs have or may be incurred. It is recommended that all such costs and expenses together with the foregoing itemized costs be charged to the respondent, and that interest at the statutory rate shall accrue and be payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar. It is further recommended that respondent shall be deemed delinquent and ineligible to practice law pursuant to R. Regulating Fla. Bar for failure to timely pay the costs assessed in this proceeding Dated this day of September, Nunc pro tunc, September 20, WILLIAM ELBRIDGE DAVIS, Referee Original to Supreme Court with Referee's original file and index. Copies of this Report of Referee only to: Jan K Wichrowski, Bar Counsel, The Florida Bar, 1200 Edgewater Drive, Orlando, Florida, Suzanne Marie Himes, Respondent, 825 NE 2nd Street, Ocala, Florida Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida

6 Suzanne Marie Himes 825 NE 2nd Street Ocala, Florida

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8 Thomas D. Hall, Clerk Supreme Court of Florida Supreme Court Building 500 South Duval Street Tallahassee, FL

9 Kenneth Lawrence Marvin, Staff Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, FL

10 Jan K Wichrowski, Bar Counsel The Florida Bar Orlando Branch Office The Gateway Center 1000 Legion Place, Suite 1625 Orlando, Florida