IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Complainant, Supreme Court Case No. SC01-2022 v. MICHAEL STUART KAUFMAN, Respondent. / ON PETITION FOR REVIEW INITIAL BRIEF OF THE FLORIDA BAR RANDI KLAYMAN LAZARUS Bar Counsel - TFB #360929 The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida 33131 (305) 377-4445 JOHN ANTHONY BOGGS Staff Counsel - TFB #253847 The Florida Bar 650 Apalachee Parkway Tallahassee, Florida 32399-2300 (850) 561-5600 JOHN F. HARKNESS, JR. Executive Director - TFB #123390 The Florida Bar 650 Apalachee Parkway Tallahassee, Florida 32399-2300
(850) 561-5600
TABLE OF CONTENTS Table of Contents... Table of Authorities... Other Authorities... PAGE -i- -ii- -iii- Statement of the Case and of the Facts... 1-6 Summary of Argument... 7-9 Argument... 10-18 THE REFEREE S REPORT WAS ERRONEOUS AND UNJUSTIFIED I. II. THE IMPOSITION OF A SIX MONTH SUSPENSION IS THE APPROPRIATE DISCIPLINE Conclusion... 19 Certificate of Service... 20 Certificate of Type, Size, Style and Anti-Virus Scan... 20 Appendix... 21 Index to Appendix... 22
-i- TABLE OF AUTHORITIES CASES PAGE Bradley v. Waldrop, 611 So. 2d 31 (Fla. 1 st DCA, 1992)... 11 Holland v. Gross, 89 So. 2d 255 (Fla. 1956)... 11 The Florida Bar v. Lopez, 406 So. 2d 1102 (Fla. 1982)... 17 The Florida Bar v. Carswell, 624 So. 2d 259 (Fla. 1993)... 17 The Florida Bar v. McCain, 330 So. 2d 712 (Fla. 1976)... 18 Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984)... 11 Republic National Bank v. Roca, 534 So. 2d 736 (Fla. 3 rd DCA 1988)... 12 Rountree v. Davis, 167 So. 820 (Fla. 1936)... 12 -ii-
OTHER AUTHORITIES: Rules Regulating The Florida Bar 3-7.7(c)(5)... 10, 11 4-3.4(a)... 5 4-4.1(a)... 5 4-8.4(c)... 5 4-8.4(d)... 5 Florida Standards for Imposing Lawyer Sanctions 6.32... 18 9.22(a)... 18
-iii- STATEMENT OF THE CASE AND OF THE FACTS A final hearing in this case was held before Referee Paul Siegel on March 8, 2002. The basic issue was whether the respondent asked a witness for the opposing party to leave the courthouse, intending to thereby gain an advantage. It is undisputed that respondent did tell a witness to leave the courthouse before the case had concluded. (T. 183). However, he claimed that it was a mistake. Lee Hinnant was the opposing counsel in the underlying case. He was representing Alina Briz and State Farm regarding a subrogation claim against George Balbuena and Aldu Company. The respondent represented Balbuena and Aldu Company which is a taxicab company. The issue to be decided at the trial was that of damages. (T. 34). Hinnant and respondent had several discussions regarding settlement but no settlement was agreed upon prior to entering Judge Venzer s chambers. (T. 187). Hinnant told the respondent that he had subpoenaed a body shop representative. (T. 35). It was undisputed that the body shop representative, Astor Gonzalez had appeared at the courthouse, (T. 45), and that respondent told him that the case was settled or about to settle 1 and he could leave. (T. 45, 183). 1 Gonzalez testified that respondent said it was settled. (T. 117). Respondent testified that he said it was going to settle. (T. 183). 1
Likewise, it is undisputed that the case was not settled when respondent told the witness he could leave. (T. 183). The chronology of events on the morning of that trial was presented by Hinnant. He had arrived at 9:40 a.m. Mike Lopez, State Farm s appraiser was already there. (T. 38). The trial was set for 10:00 a.m. There were continuing settlement discussions prior to the trial. State Farm had not reduced its original demand for $8,750.00. (T. 41). Respondent had offered an amount which State Farm rejected. (T. 41). Respondent s client increased its offer to $7,000.00, and then to $7,500.00. State Farm reduced its demand to $8,500.00. (T. 44) At 10:05 a.m Hinnant called S & M Body Shop to ask where his witness (Gonzalez) was. He was told that the witness was on his way. (T. 41). Thereafter, settlement discussions resumed. (T. 42). Present at the discussion were respondent and Hinnant, and Mike Lopez, State Farm s appraiser, as respondent admitted. (T. 196). Respondent stated that State Farm could not prove its case because they couldn t prove reasonable and necessary damages without the presence of a body shop representative. (T. 42). Earlier respondent 2
declined to permit their body shop representative 2 to testify by phone. (T. 35). At 10:20 a.m., Hinnant called S & M again and was told that Astor Gonzalez had been to the courthouse and had returned. (T. 45). Gonzalez explained that a lawyer told him that he could leave and that the case was settled. (T. 45). Hinnant asked Gonzalez to come back. (T. 45). Respondent admits that he was the lawyer who dismissed Gonzalez. (T. 52, 67, 183). At 10:25 a.m. they entered the Chambers of Judge Venzer. (T. 45). Respondent mentioned several times that State Farm could not prove its case because of the absence of a body repair expert, according to Hinnant. (T. 47, 48). Hinnant stated that his witness was returning. Respondent suddenly put an end to the case by agreeing that his clients would pay the $8,500.00 demanded by State Farm. (T. 197). Respondent then left the courthouse rather abruptly, according to Hinnant. (T. 48). Hinnant filed a complaint with the Bar, based upon the assertion that respondent had improperly told a witness to leave the courtroom. The respondent wrote to the Bar, on October 2, 2001, in response to the complaint, and offered mistake as a defense. 2 This fact is disputed by respondent. In his letter to the Bar, he claimed that he specifically referred to the absence of the Bar s appraiser. (A.2). At trial he spoke in general terms of missing witnesses (T. 187) and changed to appraiser, adjuster or witness on cross examination. (T. 200). 3
Hinnant also testified regarding respondent s alleged defense, as did witnesses Astor Gonzalez, Alina Briz, Mike Lopez and Ana K. Eibed. No witness supported respondent s claims regarding the salient events. Hinnant addressed the defense to which the respondent adhered. He testified that respondent made no statement to the Judge regarding sending the wrong person home. (T. 51). Anna Eibed was a witness to Hinnant s telephone conversation with respondent on the speaker phone. (T. 52). Respondent told Hinnant that he thought he had sent away George Balbuena, a representative of the taxi company (T. 53). He added that when the person standing next to him identified himself as Balbuena he realized that he made a mistake. He did not mention sending home his own mechanic. (T. 53). Respondent claimed in his letter to the Bar that State Farm couldn t prove damages since their appraiser was not present. Hinnant pointed out that respondent had referred to their body shop representative, and never to the appraiser, (T. 43, 48, 55, 56) as did Mike Lopez (T. 133) and Alina Briz. (T. 123). The final hearing was based upon undisputed facts, in addition to facts which could not be sustained for other reasons. The facts set forth above and additional pertinent facts will be set forth in the Argument portion of this brief. The undisputed facts will be noted. 4
The referee announced at the conclusion of the final hearing that he found the respondent was not guilty, after stating that he had personal knowledge of respondent s practices as an attorney. The Bar filed its Petition for Review of the referee s finding that respondent was not guilty of violating Rules 4-3.4(a) Fairness to Opposing Party and Counsel, (A lawyer shall not unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act); 4-4.1(a) Truthfulness in Statements to Others. (In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person); and 4-8.4(c),(d) Misconduct. (c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; and (d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic) of 5
the Rules of Professional Conduct. 6
SUMMARY OF THE ARGUMENT Argument I is directed to the referee s findings that the respondent was not guilty. The clearly erroneous test applies to appeals which are part of Bar proceedings. Like those cases wherein the clearly erroneous test is applied (for example when facts are undisputed), the competent substantial evidence test does not apply. The Bar s position as stated in Argument I is also based upon the legal principle that testimony which is improbable or unreasonable should not be considered. Although undisputed testimony is not required in order to apply the clearly erroneous test in Bar proceedings, the Bar has focused upon those matters which are undisputed. Respondent sent home the witness for the opposing party. That is undisputed. He wrote to the Bar and said that he made a mistake. He also specified that in settlement discussions he had referred to the absence of an appraiser as a weakness of proof in his opponent s (State Farm) position. The significance of that statement was that he hadn t asked an appraiser to leave, but a body shop mechanic. If respondent argued that a body shop mechanic was necessary to prove State Farm s case, and he sent their body shop mechanic away, it was persuasive as to his intent. Therefore, according to all the witnesses, 7
respondent said that they needed a body shop witness, but claimed it was an appraiser thereafter. One other circumstance based upon undisputed evidence is that State Farms appraiser was present at all times. Obviously, if respondent spoke of a missing appraiser, Lee Hinnnant, his opposing counsel, would simply have stated that Lopez, the appraiser, was there. Hinnant did not make that statement because there was no reason to do so. Every eyewitness who testified regarding what respondent had said, agreed that no reference to an appraiser was made by respondent to Hinnant. Another aspect of the clearly erroneous referee findings was respondent s claim that he told the witness that they could leave because the case was going to settle. The witness who was dismissed emphasized the respondent advised him that the case was settled. Respondent s position is totally illogical. If he told the witness that the case was going to settle, that witness would have asked to speak to his attorney, or would have asked respondent who he was. That did not take place in the twenty second conversation, according to respondent s own testimony. Respondent claimed that witness Gonzalez possibly had an English language problem. No evidence of that assertion was offered at the final hearing, and no 8
evidence of how that alleged language problem would have affected respondent s dismissal of the witness was offered. One story offered by respondent was that one of his clients, Mr. Balbuena was standing next to him but he never asked Balbuena who he was. That is why he thought he had sent home Balbuena. Every witness disagreed with respondent regarding his position on the salient facts and all agreed that he had changed his position. The conspiracy required to coordinate that consensus at trial is unimaginable in reference to the underlying $8,500.00 settlement. Respondent s change of position was verified by every witness with knowledge of what took place. His conduct, according to every witness with knowledge, was violative of Bar Rules. Every witness testified that respondent had changed his story. Respondent s explanation was totally improbable. The referee s ruling denying respondent s guilt was clearly erroneous. The foregoing conduct is tantamount to witness tampering and warrants a six (6) month suspension. 9
ARGUMENT I. THE REFEREE S REPORT WAS ERRONEOUS AND UNJUSTIFIED Rule 3-7.7(c)(5) provides that the burden of the party seeking review is to demonstrate that the referee s report is erroneous, illegal, or unlawful. The Bar does not maintain that the report is illegal. However, there is ample proof that the report was erroneous and/or unjustified. Substantiation of that conclusion follows. First, the referee s expression of his opinion based upon personal knowledge of respondent s conduct raises significant doubts regarding objectivity. At the conclusion of the final hearing, the referee announced his findings from the bench. His comments regarding the respondent were not based upon the hearing, but upon personal contacts. The referee stated: The Court knows Mr. Kaufman. I don t admire him. He has a general reputation as a bit of a pain among the Judges. He is engaging in a form of law practice which is sort of toward the bottom fringes of the practice of law. He s got a mass practice. He s got a WalMart discount type of practice of law. The description of one of the witnesses of what was going on in the Coral Gables courtroom as chaotic is what happens any time this Respondent is in a courtroom. Everything he does is chaotic. If you look at his appointment book, if he has it with him, it might be worthwhile for you to look at his appointment 10
book. It s incredible. I ve seen it. He doesn t know which end is up most of the time. So under all of these circumstances, for him to make a mistake and he did make a mistake. Obviously, he made a mistake but that has to be put in context. (T. 216-217) The immediacy of referee s decision and his comments suggest that the extensive testimony may not have been carefully weighed. As stated above, it is undisputed that respondent sent away an opposition witness. According to every relevant witness at the final hearing, statements made by the respondent at the time of the act, were changed thereafter. The clearly erroneous test applies not only because of Rule 3-7.7(c)(5), but also under these circumstances. When the facts are essentially undisputed, the legal effect of the evidence is a matter of law. Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984); Bradley v. Waldrop, 611 So. 2d 31 (Fla. 1 st DCA, 1992). The clearly erroneous test applies. A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. Holland v. Gross, 89 So. 2d 255 (Fla. 1956). The clearly erroneous test is not as limiting as the substantial competent evidence test. Holland, supra; Bradley, supra. Furthermore, a Court is not bound to accept testimony which is improbable 11
or unreasonable even if it is uncontradicted. Rountree v. Davis, 167 So. 820 (Fla. 1936), Republic National Bank v. Roca, 534 So. 2d 736 (Fla. 3 rd DCA 1988). Respondent s lack of credibility is demonstrated by undisputed testimony. No one disputed that all times pertinent hereto Mike Lopez was present at the trial. (T. 196). Mike Lopez was State Farm s appraiser. Respondent does not deny it. Every pertinent witness testified that respondent said several times that State Farm couldn t prove their case because their witness from the repair shop wasn t present. (T. 41, 42, 47, 56, 123, 133). Respondent told the witness from the repair shop to leave. That is undisputed. Every witness with direct knowledge of these events testified that respondent changed his position. In his letter to the Bar (A.2). Respondent said that he had pointed out that State Farm couldn t prove their case without an appraiser. (T. 195). He hadn t sent anyone s appraiser away, so that version tended to exonerate the respondent. Respondent s statement regarding the absence of an appraiser was not a mere matter of semantics or careless wording. Respondent was definite and specific. I told the court that without their appraiser, plaintiff could not prove their case. At this point, Mr. Hinnant said that his witness had been there earlier and had left after someone told him the case was settled. (A.2, emphasis supplied) 12
At trial, respondent equivocated, referring first to missing witnesses (T. 187) and appraiser, adjuster, or witness on cross examination. (T. 200). However, no one, not even the respondent, denied that Mike Lopez was present at all times pertinent to respondent s conduct. Mike Lopez was State Farm s appraiser. Obviously, if that reference to an appraiser, presented in respondent s letter had been respondent s statement, Hinnant, standing near Lopez, would have responded that the argument was absurd because Lopez was right there. (T. 43, 48). The fact that the respondent changed his testimony in his letter to the Bar and at the final hearing was clearly established. The claim that respondent referred to the missing appraiser during negotiations is totally beyond belief in view of Lopez presence at all times. Furthermore, respondent in his version of the events set forth above claimed that the Bar s appraiser was missing. He further claimed that Hinnant then said his witness had been there earlier. (A.2). That claim is equally absurd because Hinnant s appraiser was there at all times. The Bar would suggest that above circumstance, alone, undermines respondent s truthfulness to the extent that no credibility can be assigned to any portion of his defense. Furthermore, there are other matters of record consisting of 13
undisputed evidence which are indicative of the referee s failure to properly scrutinize the testimony. Much of what respondent said initially as well as in his testimony teters on the border of the absurd. Respondent s testimony was that he spoke to the waiting witnesses for approximately twenty seconds. (T. 184). He didn t ask who they were or where they were from. Such is unreasonable on its face. In addition he testified that he told the witnesses that they were going to settle (A.2; T. 183). Astor Gonzalez who was State Farm s witness was quite decisive about what respondent said. Note the following exchange: Q. Could he have said : The case is going to settle? Q. No. He said The case is settled. (T. 117; emphasis supplied) Gonzalez explanation is totally reasonable. If a witness is told that he can leave because a case is going to settle he would verify that fact with his own lawyer before departing. One would not leave unless someone advised him that the case was settled. Respondent stated in his letter to the Bar that he had perhaps a language problem with Mr. Gonzalez. No explanation was provided of how a language problem could have affected the twenty (20) second conversation. Gonzalez testimony belies that claim. That suggestion was not pursued by 14
respondent s counsel at the final hearing. Respondent said to Hinnant in a telephone conversation after the aborted trial that he thought he had sent home George Balbuena. (T. 53). Hinnant s secretary heard the speaker phone call and testified that she heard the same explanation. (T. 95-96). Respondent added that Balbuena, who was his client, was standing next to him, but he did not inquire as to Balbuena s identity until he realized that someone was improperly told that the trial was over and could leave. (T. 52-53). Thus, respondent s initial explanation defies reason. Is it possible that he would not determine whether it was one of his clients who was standing next to him? His subsequent explanation, that he thought he sent away a witness in behalf of his client (T. 53, 182, 204, 206) his own expert mechanic, also defies reason. Why would he send away a crucial witness when the case had not been settled? Since respondent immediately announced that he would settle for $8,500.00 when entering the Judge s chambers, why wouldn t he have permitted any and all witnesses to wait for an additional few minutes? The referee should also have considered that two or more witnesses, in regard to each position taken by respondent rejected respondent s version of his original statement. All of those witnesses, were consistent with one another on every factual issue. No witness supported respondent regarding the essential 15
issues. A complex coordination of testimony would have been required to ensure consistency if they were not telling the truth. They would have had to study respondent s response and prepare consistent answers. No reason exists for the formation of such a conspiratorial effort. Hinnant on the day of the incident received exactly what he sought, namely, $8,500.00. Why would any of the witnesses risk lying under oath? There was nothing for any of them to gain, and all would have been taking a large risk for incomprehensible motives. Obviously, their sole motive was to see that respondent was disciplined for extremely improper conduct. Respondent was the only person who had a motive for advancing false testimony, inconsistent with his original testimony. He testified that he sought the lowest possible settlement in behalf of his client, (A.2). In this case it is apparent that he used improper means to attempt to reach that goal. The referee s ruling is clearly erroneous. Respondent should have been found guilty of obstructing evidence, making a false statement to the Bar and to the dismissed witness, dishonesty and conduct prejudicial to the administration of justice. All of the foregoing were clearly and convincingly proved by the Bar. 16
II. THE IMPOSITION OF A SIX MONTH SUSPENSION IS THE APPROPRIATE DISCIPLINE Should this Court opine that the bar proved its case the prevailing case law and Florida Standard for Imposing Lawyer Sanctions warrants the imposition of a six (6) month suspension for the serious misconduct committed. In The Florida Bar v. Lopez, 406 So. 2d 1102 (Fla. 1982), this Court suspended that lawyer for one (1) year for tampering with a witness and stated: If Mr. Lopez had been convicted in a court of this state of tampering with a witness, he would have been subject to a one-year term of imprisonment. Using the witnesstampering statute as a guideline, we find a one-year suspension appropriate in this case. Lopez, at 1102 Mr. Kaufman approached his adversaries witness and falsely advised that the matter was settled and the witness was permitted to leave. Such conduct is tantamount to tampering with a witness. In The Florida Bar v. Carswell, 624 So. 2d 259 (Fla. 1993) that attorney was convicted of tampering with a witness. A six (6) month suspension was imposed due to the existence of mitigating circumstances. In enhancing the ninety one day (91) day suspension recommended by the referee this court held it was [W]holly 17
insufficient to deter others who may be tempted to tamper with witnesses... Standard 6.32 of Florida Standards for Imposing Lawyer Sanctions provides that suspension is appropriate when a lawyer engages in communication with an individual in the legal system which interferes with the outcome of the legal proceeding. Surely, directing the opposition s witness to leave with false information does interfere with the legal process. Additionally, the respondent has prior discipline. He received an admonishment for minor misconduct in 1999. 4 Prior discipline is an aggravating factor under the Florida Standard for Imposing Lawyer Sanctions. 9.22(a) A suspension of six (6) months is appropriate. 4 The referee rendered the report subsequent to the close of all evidence in the case in chief. Neither party had an opportunity to present evidence regarding discipline. The Court may consider Michael Stuart Kaufman s prior disciplinary history under its inherent and exclusive power to discipline lawyers. The Florida Bar v. McCain, 330 So. 2d 712 (Fla. 1976). 18
CONCLUSION Based upon the foregoing reasons and citations of authority, The Florida Bar respectfully submits that the referee s report was clearly erroneous and a suspension of six (6) months is appropriate. RANDI KLAYMAN LAZARUS Bar Counsel TFB #360929 The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida 33131 Tel: (305) 377-4445 JOHN F. HARKNESS, JR. Executive Director TFB No. 123390 The Florida Bar 650 Apalachee Parkway Tallahassee, Florida 32399-2300 Tel: (850) 56l-5600 JOHN ANTHONY BOGGS Staff Counsel TFB No. 253847 The Florida Bar 650 Apalachee Parkway Tallahassee, Florida 32399-2300 Tel: (850) 56l-5600 19
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and seven copies of The Florida Bar s initial brief was sent by regular mail to THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-1927, and a true and correct copy was mailed to respondent s attorney, YALE L. GALANTER, ESQ., 525 South Andrews Avenue, Ft. Lauderdale, Florida 33301, on this day of August, 2002. RANDI KLAYMAN LAZARUS Bar Counsel CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN I hereby certify that the Brief of The Florida Bar is submitted in 14 point proportionately spaced Times New Roman font and that the computer disk filed with this brief has been scanned and found to be free of viruses by Norton AntiVirus for Windows. RANDI KLAYMAN LAZARUS Bar Counsel 21
APPENDIX 22
INDEX TO APPENDIX A.1 Referee s Report A.2 Respondent s letter to the Bar dated January 3, 2001 23