IN THE SUPREME COURT OF FLORIDA. No. SC Complainant, The Florida Bar File v. No , 396 (17J) REPORT OF REFEREE

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1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Supreme Court Case No. SC Complainant, The Florida Bar File v. No , 396 (17J) ANDREW ALEXANDER BYER, Respondent. / REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: The Florida Bar filed its complaint in this cause with the Supreme Court of Florida on or about October 26, Thereafter, the undersigned was appointed to preside as referee in this proceeding by order of the Chief Judge of the Fifteenth Judicial Circuit. A final hearing in the case was held July 18, The pleadings, and all other papers filed in this cause, which are forwarded to the Supreme Court of Florida with this report, constitute the entire record. During the course of these proceedings, respondent represented himself and The Florida Bar was represented by Juan Carlos Arias.

2 II. FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT WITH WHICH RESPONDENT IS CHARGED: My findings of fact are as follows: 1. As to all counts, respondent is, and at all times material to this action was, a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. In a Joint Stipulation of Facts, respondent admitted to the facts set forth below [The Florida Bar s Exhibit 1]: 2. On or about late 1992, respondent became acquainted with one Fernando Tonelli, an Italian national, while Tonelli was vacationing in Miami. In 1993, Tonelli moved to Miami and contacted respondent for friendship and assistance. Over the next few years, the two became close friends. 3. Beginning some time in 1995, Tonelli became involved in trafficking MDMA (Ecstasy) from Europe to the U.S. Respondent was fully aware of Tonelli s illegal activities. In late 1996, respondent had just started his own law practice and was struggling. Tonelli, being aware of this, proposed that respondent make some extra money by aiding him in his illegal activities. Respondent agreed and subsequently made a trip to Europe on behalf of Tonelli to deliver money and purchase MDMA, although a separate courier returned with the product. After that, respondent distanced himself from Tonelli s illegal activities but remained friends. 2

3 4. In late 1997, respondent again assisted Tonelli by making a delivery of MDMA to a buyer in New York City. Respondent was scheduled to meet the buyer at a hotel near the airport. Once inside the hotel room, the buyer produced a handgun, pointed it at respondent s head, tied him up, and robbed respondent of the MDMA. Tonelli did not believe respondent about the theft and threatened him to provide compensation or else. Respondent asked his father for money to pay back Tonelli for the loss. Respondent then distanced himself permanently from Tonelli and moved to Fort Lauderdale. 5. In late 2005, respondent was approached by two DEA agents who informed him that he was the last co-conspirator they were going after in a ten year investigation. The DEA agents also informed respondent that if he did not cooperate, they would charge his 78 year-old father (a retired NJ surgeon) with conspiracy as well, claiming his father traveled to Europe to pay respondent s trafficking debt. Respondent cooperated fully and within a few months a plea was signed. Respondent was sentenced to 4 months of prison followed by 4 months of house arrest, which sentence has been fulfilled without issues. Respondent s period of probation terminates on November 22, Respondent has no other criminal record other than routine traffic infractions. 6. In addition to the stipulated facts set out above, the following facts were proven at hearing, bearing primarily on the issue of mitigation: 3

4 The Respondent has no prior Bar disciplinary record, and no prior criminal offenses or arrests. The Respondent made full and free disclosure to The Bar, this referee, and the Federal Court. He displayed an attitude of total cooperation toward The Florida Bar disciplinary proceedings, and prosecution of the underlying Federal charges at all times. The Respondent s reputation and character is impeccable, but for participation in these criminal transactions almost 10 years ago. The undersigned is impressed by the unchallenged testimony regarding the Respondent's excellent character and reputation presented by witnesses at hearing, and contained in copies of recommendation letters to the Federal Court, furnished to the undersigned at hearing. The Respondent is unquestionably a highly-principled, kind, generous, compassionate human being, and has demonstrated himself to be a conscientious attorney who is a credit to The Florida Bar, but for his participation in these criminal transactions almost 10 years ago. The Respondent has rehabilitated himself in the interim period between commission of these criminal acts and his 2006 guilty plea in Federal Court. He voluntarily removed himself from contact with the person who recruited him for the criminal transactions, geographically removed himself and his law practice from Miami to the Fort Lauderdale area, established a new law practice, and conducted himself in an exemplary manner for approximately 8 years, until being contacted by Federal officials regarding his two incidents of criminal activity in 1996 and Other penalties or sanctions have been imposed upon Respondent. He pled to, and was adjudicated guilty of Misprision of a Felony. As a penalty, he 4

5 served four months in Federal prison, an additional four months of house-arrest, and is now completing a final four months of Federal probation. The Respondent testified to the real-world consequences of this conviction. As a convicted felon, he is no longer eligible for most types of employment or licenses, and is reduced to working minimum-wage type jobs to support himself. The Respondent has shown consistent and genuine remorse for his criminal acts, which predates these proceedings initiated by The Florida Bar. III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY: By the conduct set forth above, respondent has violated the following Rules Regulating The Florida Bar: [Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline.]; [The commission by a lawyer of an act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney s relations as an attorney or otherwise, whether committed within or outside the state of Florida and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.]; 4-8.4(a) [A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.]; 4-8.4(b) [A lawyer shall not commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a 5

6 lawyer in other respects.]; and 4-8.4(d) [A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice ]. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that respondent be suspended for 3 years, effective nunc pro tunc to April 27, 2006, and that he successfully completes the professional responsibility portion of The Florida Bar Examination as a condition to reinstatement. In arriving at the foregoing disciplinary recommendation, consideration was given to various factors which are set forth below: A. Respondent had a dishonest or selfish motive and committed multiple offenses. Although he pled guilty to only one Federal felony, he admitted to participating in criminal drug transactions on two separate occasions, roughly one year apart, for personal gain. This does not amount to a pattern of misconduct. Therefore, I find these aggravating factors pursuant to Florida Standards for Imposing Lawyer Sanctions 9.22 (b) and (d). B. In addition to those matters of aggravation listed in Standard 9.22, I also considered the following mitigating circumstances: absence of a prior disciplinary record, full and free disclosure to disciplinary board or cooperative attitude toward proceedings, character and reputation, interim rehabilitation, 6

7 imposition of other penalties or sanctions and remorse. Therefore, I find these mitigating factors pursuant to Florida Standards for Imposing Lawyer Sanctions 9.32(a), (e), (g), (j), (k) and (l). C. Standard 5.0 of the Florida Standards for Imposing Lawyer Sanctions, best fit the misconduct described. Standard 5.11 states that disbarment is appropriate when a lawyer is convicted of a felony under applicable law. Standard 5.11 also states that the factors set out in Standard 3.0 must be applied, to include the existence of aggravating or mitigating factors. The mitigating factors set forth herein, and the specific facts of this case set forth in Section II above, justify the recommendation of a three-year suspension, rather than disbarment. D. Respondent pled guilty in 2006 to charges based upon criminal behavior which occurred in 1996 and That unacceptable behavior is remote, almost 10 years prior to these proceedings. The evidence shows the long-ago criminal behavior was an aberration, self-corrected by the respondent many years prior to Federal charges being filed. E. I am satisfied that the imposition of a 3-year suspension, effective nunc pro tunc to April 27, 2006, and the successful completion of the professional responsibility portion of The Florida Bar Examination is necessary to meet the Court s criteria for appropriate sanctions: attorney discipline must protect the public from unethical conduct and have a deterrent effect while still being fair to respondents. The Florida Bar v. Pahules, 233 So.2d 130,132 (Fla. 1972). 7

8 V. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: After finding respondent guilty but prior to making my disciplinary recommendation, I considered the following personal history and prior disciplinary record of respondent, to wit: Age: 45 Date Admitted to The Florida Bar: October 4, 1989 Prior to disciplinary convictions and disciplinary measured imposed therein: 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: A. Grievance Committee Level Costs: 1. Court Reporting Costs $ Bar Counsel Travel Costs $ -0- B. Referee Level Costs: 1. Court Reporting Costs $ Bar Counsel Travel Costs $ C. Administrative: $ 1, D. Miscellaneous Costs: 1. Investigators Expenses $ Witness Fees $ Copy Costs $ Auditor Costs $ -0- TOTAL ITEMIZED COSTS: $ 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 8

9 within 30 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, JOHN L. PHILLIPS, REFEREE 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 mail to the following: STAFF COUNSEL, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida ; and JUAN C. ARIAS, Bar Counsel, The Florida Bar, 5900 North Andrews Avenue, Suite 900, Fort Lauderdale, Florida ; and to ANDREW ALEXANDER BYER, respondent, 1630 East Las Olas, Ft. Lauderdale, Florida 33301, on this day of, JOHN L. PHILLIPS, REFEREE 9

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