IN THE SUPREME COURT OF FLORIDA. (Before a Referee) Case No.: SC v. TFB File No.: ,037(07A)(OSC)

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, Case No.: SC v. TFB File No.: ,037(07A)(OSC) FAYE ESTHER BENNETT, Respondent. / REPORT OF THE REFEREE ACCEPTING CONSENT JUDGMENT 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 September 15, 2011, The Florida Bar filed its Petition for Contempt and Order to Show Cause against Respondent in these proceedings. The filings which constitute the record in this case are forwarded to the Supreme Court of Florida with this Report. The Supreme Court of Florida referred this matter to a Referee

2 solely to determine a recommended sanction in the order dated April 18, The parties have submitted an Unconditional Guilty Plea to resolve the case and this Report approves this plea. 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. 1. By order of the Supreme Court of Florida dated May 20, 2011, in case number SC11-969, [TFB File No ,037(ACA)], respondent was conditionally admitted to The Florida Bar pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar and placed on probation for a period of three years. 2. Respondent was conditionally admitted based on substance abuse issues, specifically alcohol dependence and psychological issues. 3. During the period of probation, respondent specifically was ordered to abstain from the consumption of alcoholic beverages. 2

3 4. In addition, pursuant to the Court's order, The Florida Bar was required to monitor respondent's compliance with the terms set forth above and respondent was responsible for paying for the costs associated with monitoring. 5. On June 3, 2011, respondent was notified of the terms and conditions associated with her conditional admission. 6. On June 30, 2011, The Florida Bar received respondent's signed acknowledgment stating that she read and understood the terms and conditions associated with her conditional admission. 7. On or about August 16, 2011, Florida Lawyers Assistance, Inc. notified The Florida Bar that respondent had tested positive for alcohol on her August 4, 2011 random drug test. The alcohol was detected at a significant level. When Florida Lawyers Assistance, Inc. questioned respondent about the positive test, respondent initially denied drinking but did admit to the use of hand sanitizer and alcohol flavoring which may be alcohol based. Respondent stated that she did not refrain from eating foods in restaurants that were prepared with alcohol. Respondent was counseled about her food habits and was instructed to call back the next day to schedule a PEth test to clarify results. When respondent spoke with Florida Lawyers Assistance, Inc. the following day, she admitted to drinking at least 10 beers the night before the test was done. 3

4 8. Florida Lawyers Assistance, Inc. required respondent to have a comprehensive evaluation in response to her positive EtG test. As a result of respondent's evaluation, respondent entered a partial hospitalization program for treatment on August 22, 2011 (for a 2 week program) which she successfully completed on September 9, Respondent entered into a Consent Agreement on May 4, 2011 with the Florida Board of Bar Examiners (FBBE), specifically agreeing to abstain from the consumption of alcohol and to comply with her Florida Lawyers Assistance, Inc. contract which also included abstaining from alcohol. FBBE relied on respondent's promise when it recommended her conditional admission to this Court and this Court relied on respondent's promise when it granted respondent's conditional admission. 10. The conditional admission order provides in pertinent part: A failure to observe the conditions of probation or a finding of probable cause as to conduct of the respondent committed during the period of probation may terminate the probation and subject the respondent to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. 4

5 11. In mitigation, Respondent did not harm any clients or members of the public as a result of her actions. Her actions were a result of a significant life event and resulting emotional crisis, and were without conscious intent to violate a court order. She was remorseful for her conduct and she promptly sought appropriate hospitalization and treatment. She cooperated with The Florida Bar in this matter. Respondent has been fully compliant in her continued treatment program and The Florida Bar has received regular reports from her treatment program indicating Respondent s complete adherence to the program. 12. Respondent admitted that by reason of the foregoing, she was in contempt as charged in The Florida Bar s Petition for Order to Show Cause in this matter. III. RECOMMENDATIONS AS TO GUILT Not Applicable IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS I considered the following Standards prior to recommending discipline: 7.2 Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system Aggravating Factors: 5

6 None 9.32 Mitigating Factors: V. CASE LAW (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (h) physical or mental disability or impairment; (j) interim rehabilitation; and (l) remorse. I considered the following case law prior to recommending discipline: The Florida Bar v. Temmer, 753 So. 2d 555 (Fla. 1999) 91 day suspension and 3 year period of probation for being arrested for possession of marijuana, cocaine, valium and drug paraphernalia while on disciplinary probation as a result of disciplinary violations arising from her use of marijuana and cocaine. The more recent criminal charges ultimately were dismissed but the bar filed disciplinary proceedings due to her violation of her disciplinary probation. The attorney voluntarily sought further treatment and underwent two additional 6

7 voluntary evaluations that resulted in a different diagnosis than had been given in her first disciplinary case. The new diagnosis resulted in the attorney being prescribed medication for the first time to treat her underlying psychiatric disorder. In mitigation, the attorney fully cooperated with the bar, her misconduct did not involve the practice of law and no clients were harmed, her treating physician was confident the chances of any further relapses were minimal due to the new medication, and she was remorseful. The Florida Bar v. Dubbeld, 748 So. 2d 936 (Fla. 1999) 91 day suspension for violating the terms of his disciplinary probation by failing to fully comply with the terms of his Florida Lawyers Assistance, Inc. contract. The attorney failed to attend all of the required AA meetings and admitted to consuming alcohol on one occasion. He missed at least one alcohol and drug screen. He underwent an additional evaluation but failed to follow the treatment recommendations. In his previously executed Consent Judgment for Conditional Guilty Plea entered into in his prior disciplinary case, he agreed to an automatic 91 day suspension if he failed to comply with the terms of his probation. Despite this fact, he challenged the imposition of the automatic suspension and an evidentiary hearing was held, which he failed to attend. 7

8 The Florida Bar v. Moroney, 74 So. 3d 1085 (Fla. 2011) (table) - Revocation of conditional admission where Respondent s conditional admission status required him to refrain from alcohol use. Respondent was arrested for driving under the influence while on conditional admission probation. The arrest took place within approximately two months of Respondent s conditional admission agreement. The Florida Bar v. Morgan, 58 So. 3d 262 (Fla. 2011) (table) A public reprimand and payment of the bar s costs were imposed where Respondent missed a total of 33 Florida Lawyers Assistance, Inc. check-ins during his conditional admission. There was no evidence of substance abuse in this Consent Judgment and Respondent showed cooperation and remorse. VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED I recommend that Respondent be disciplined as follows: A. Ninety-one-day suspension with proof of rehabilitation required prior to reinstatement to the practice of law. B. Respondent will continue to participate actively in the program offered by Florida Lawyers Assistance, Inc., by extending her current rehabilitation contract with that organization until 2015 within 30 days of the order of the 8

9 Supreme Court of Florida. Respondent shall continue to follow all recommendations by Florida Lawyers Assistance, Inc., during the entire probation period. C. Respondent will pay a Florida Lawyers Assistance, Inc., registration fee of $ and a probation monitoring fee of $ a month to The Florida Bar s headquarters office. All monthly monitoring fees must be remitted no later than the end of each respective month in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation. VII. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD Prior to recommending discipline pursuant to Rule 3-7.6(m)(1)(D), I considered the following personal history of Respondent, to wit: Age: 47 Date admitted to the Bar: May 27, 2011 Prior Discipline: None VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED 9

10 I find the following costs were reasonably incurred by The Florida Bar: Administrative Costs $1, TOTAL $1, It is recommended that such costs be charged to Respondent and that interest at the statutory rate shall accrue and that should such cost judgment not be satisfied within thirty days of said judgment becoming final, Respondent shall be deemed delinquent and ineligible to practice law, pursuant to R. Regulating Fla. Bar 1-3.6, unless otherwise deferred by the Board of Governors of The Florida Bar. Dated this day of, The Honorable Steven C. Henderson, Referee 10

11 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, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida ; a copy has been furnished by regular U.S. Mail to Respondent's Counsel, D. Gray Thomas, 424 East Monroe Street, Jacksonville, Florida ; a copy has been furnished to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida ; and a copy has been furnished to Jan K. Wichrowski, Bar Counsel, The Florida Bar, Orlando Branch Office, 1000 Legion Place, Suite 1625, Orlando, Florida on this day of, The Honorable Steven C. Henderson, Referee 11

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

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

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