THE FLORIDA BAR, IN THE SUPREME COURT OF FLORIDA v. Complainant, HERMAN THOMAS, Case No. SC11-925 TFB File No. 2009-00,804(2B) Respondent. / ANSWER BRIEF Allison Carden Sackett, Bar Counsel The Florida Bar Tallahassee Branch Office 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5845 Florida Bar No. 582700 Kenneth Lawrence Marvin, Staff Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Florida Bar No. 200999 John F. Harkness, Jr., Executive Director The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Florida Bar No. 123390
TABLE OF CONTENTS TABLE OF CITATIONS... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 4 SUMMARY OF ARGUMENT... 8 ARGUMENT... 9 ISSUE I... 9 THE REFEREE PROPERLY APPLIED RULE 3-4.6, FINDING RESPONDENT GUILTY OF THE MISCONDUCT IN ALABAMA ISSUE II... 12 THE REFEREE'S RECOMMENDED DISCIPLINE HAS A REASONABLE BASIS IN EXISTING CASE LAW AND IS SUPPORTED BY THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS CONCLUSION... 15 CERTIFICATE OF SERVICE... 16 CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN... 17 i
TABLE OF CITATIONS Page No. Cases The Florida Bar v. Friedman, 646 So. 2d 188, 190 (Fla. 1994)... 9, 10 The Florida Bar v. Jones, 571 So.2d 426 (Fla. 1990)... 13 The Florida Bar v. Kandekore. 766 So. 2d 1004, 1007 (Fla. 2000)... 9 The Florida Bar v. Miller, 863 So. 2d 231, 234 (Fla. 2003)... 12 The Florida Bar v. Mogil, 763 So. 2d 303,306 (Fla. 2000)... 9, 10, 13 The Florida Bar v. Shoureas, 892 So.2d 1002, 1005-1006 (Fla.2004)... 12 The Florida Bar v. Temmer, 753 So.2d 55, 558 (Fla. 1999)... 12 The Florida Bar v. Tipler, 8 So.3d 1109 (Fla. 2009)... 9, 10 The Florida Bar v. Walkden, 950 So.2d 407 (Fla. 2007)... 13 The Florida Bar v. Wilkes, 179 So.2d 193 (Fla. 1965)... 8, 9, 10 Rules 3-4.6... i, 9, 10, 15 Standards 5.21... 12 6.21... 13 7.1... 13 Alabama Rules 1.16(a)(l)... 4 3.3(a)(l)... 4 3.4(b)... 4 3.4(c)... 4 5.5A.1... 4 8.1(a)... 4 8.4(a)... 4 8.4(b)... 4 8.4(c)... 4 8.4(d)... 4 8.4(e)... 5 8.4(g)... 5 ii
PRELIMINARY STATEMENT The Complainant, The Florida Bar, is seeking review of a Report of Referee recommending disbarment. Complainant will be referred to as The Florida Bar, or as The Bar. Herman Thomas, Respondent, will be referred to as Respondent, or as Mr. Thomas throughout this brief. References to the Report of Referee shall be by the symbol RR followed by the appropriate page number. References to specific pleadings will be made by title. Reference to the transcript of the final hearing are by symbol TR, followed by the volume, followed by the appropriate page number, (e.g., TR III, 289). References to Bar exhibits shall be by the symbol TFB Ex followed by the appropriate exhibit number, (e.g., TFB Ex. 10). 1
STATEMENT OF THE CASE This is a reciprocal discipline case, based on an Alabama Supreme Court Order dated December 21, 2010, disbarring Respondent from the practice of law in Alabama. On March 11, 2011, this Court emergency suspended Respondent. The Florida Bar filed a Formal Complaint and Request for Admissions on May 5, 2011. Respondent filed his Answers to both The Florida Bar s Complaint and Request for Admissions and Respondent s uncaptioned request for admissions to the Bar on May 23, 2011. On June 6, 2011, the Honorable John C. Cooper was appointed Referee to hear this matter. On June 22, 2011, The Florida Bar filed its Answers to Respondent s uncaptioned request for admissions along with a Motion to Require Respondent to Provide More Specific Responses to The Florida Bar s Request for Admissions, which was granted on June 23, 2011. A telephonic status conference was held on July 13, 2011. Respondent filed his Request for Admission (more specific responses) on June 29, 2011. 2
A Motion for Extension of Time to File Report of Referee was filed on July 21, 2011, and granted by this Court s Order dated August 5, 2011, extending the deadline for the Report of Referee until October 14, 2011. The Final Hearing on this matter was held on August 26, 2011 and the Report of Referee was filed on October 3, 2011. Respondent filed a Petition for Review on or about December 1, 2011, and filed his Initial Brief on or about December 21, 2011. 3
STATEMENT OF THE FACTS The Referee found that 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. (RR 2) The Referee further found that in addition to membership in The Florida Bar, Respondent is, and at all times mentioned was, a member of the Alabama State Bar, subject to the disciplinary authority of the Disciplinary Board of the Alabama State Bar and the Supreme Court of Alabama. (RR 2) Additionally, the Referee found that the Alabama order, which was admitted into evidence, as TFB Ex. 1 was a final adjudication of guilt and recommended that Respondent be found guilty of violating Rules of Professional Conduct of the Alabama Bar: 1.16(a)(l) declining or terminating representation; 3.3(a)(l) candor toward the tribunal; 3.4(b) providing false evidence; 3.4(c) knowingly disobeying an obligation under the rules of a tribunal; 5.5A.1 engaging in the practice of law after suspended; 8.1(a) knowingly making false statements of material fact during a disciplinary matter; 8.4(a) violating the rules of professional conduct; 8.4(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 8.4(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 8.4(d) engage in conduct that is prejudicial to the administration of 4
justice; 8.4(e) state or imply an ability to influence improperly a government agency or official and 8.4(g) engage in any other conduct that adversely reflects on his fitness to practice law. (RR 6-7) The Referee further found that either of the 2 cases in this matter would, on their own, warrant disbarment. (RR 7) The cases which resulted in Respondent s double disbarment in Alabama and formed the basis for the Florida disciplinary case are summarized as follows: Alabama case number 09-1457(A) On March 30, 2009, Respondent was temporarily suspended from the Alabama State Bar based on a 57 count Grand Jury indictment. Although Respondent was technically cleared of the criminal charges, the Alabama bar amended the initial charges on January 8, 2010. The violations alleged by the Alabama bar were: 1) engaging in improper ex parte communication with criminal defendants while serving as a circuit judge; 2) engaging in conduct that adversely reflected on his fitness to practice law by spanking both minors and adults while practicing as a lawyer and serving as a judge; and 3) spanking or paddling criminal defendants on his docket. Since Respondent and the Alabama bar stipulated that either side could, in lieu of live testimony, submit as evidence transcripts of witness testimony and 5
accompanying exhibits from Respondent s criminal trial, at the formal hearing on February 22, 2010, the Alabama bar presented the transcript testimony of 6 witnesses and the live testimony of 7 witnesses, all of whom had previously appeared at Respondent s criminal trial. After consideration of the testimony and evidence, the Disciplinary Board found Respondent s testimony to be both unreliable and untruthful and found Respondent guilty. Alabama case number 09-1975(A) Respondent was suspended from the practice of law on March 30, 2009 and remained suspended. On April 22, 2009, Respondent filed an affidavit with the Disciplinary Commission of the Alabama State Bar certifying that he was in compliance with the provisions of the order of his suspension. Prior to his suspension, Respondent was retained by Brent Washam to represent him in establishing paternity and child support. Respondent failed to withdraw from the case upon his suspension. Respondent was hired by the Estate of Henry C. Williams in or about October, 2008. While suspended, Respondent prepared and/or submitted for recording deeds for or on behalf of the Williams estate. Respondent further prepared and/or filed a deed in the Estate of Unia Richard Simpson, issued checks for estate expenses in the 6
matter of Joan Crawford Milner and provided legal services involving the estate of Howard Davis and in the matter of Alphonse Harris, Sr. On or about December 8, 2009, Respondent was deposed under oath. During his deposition, Respondent admitted that he failed to notify all or some of his clients of his suspension as required under the Alabama Rules of Disciplinary Procedure. Respondent further admitted that he failed to file motions to withdraw in the courts in which he had cases pending, also in violation of the Alabama Rules of Disciplinary Procedure. However, when questioned concerning work performed for two clients, Respondent testified that he did not prepare or review deeds for either of the estates. This statement was proven to be false. Not only did Respondent prepare and review the deeds, he filed them. A formal hearing was held on February 23, 2010. Respondent, through his counsel, informed the Disciplinary Board that he wished to admit to the allegations in the formal and amended charges and further that he wished to plead guilty to all counts. 7
SUMMARY OF ARGUMENT This is a reciprocal disciplinary action governed by Rule 3-4.6 of the Rules Regulating The Florida Bar. The Florida Bar contends that the Referee properly relied upon and applied Rule 3-4.6 to find Respondent guilty of violating rules of the Alabama bar. The Referee then imposed a reasonable and appropriate discipline pursuant to relevant case law and Florida Standards. While Respondent never actually mentions the concept of due process, it is clear that the underlying basis for his argument is that of failure to receive due process in his Alabama disciplinary proceeding. Respondent failed to meet his burden of proof showing that he was not afforded due process in Alabama as stated in The Florida Bar v. Wilkes, 179 So.2d 193 (Fla. 1965). At the final hearing, when questioned by the Referee, Respondent admitted that all of the issues that he was raising in Florida had been addressed during the disciplinary process in Alabama. Respondent confirmed that those issues were, in fact, previously raised and considered in Alabama. (TT 18-19; RR 9) Respondent further availed himself of the entire appeal process in Alabama. 8
ARGUMENT ISSUE I THE REFEREE PROPERLY APPLIED RULE 3-4.6, FINDING RESPONDENT GUILTY OF THE MISCONDUCT IN ALABAMA The Florida Supreme Court interpreted this rule in Wilkes, [construing language in the predecessor Rule 11.02(6), Integration Rule of The Florida Bar] holding that "the introduction in evidence of a properly authenticated judgment of discipline entered by a competent agency of a sister state shall operate as conclusive proof of guilt of the acts of misconduct adjudicated in that judgment..." Id. at 197. This holding in Wilkes has become a well-settled principle of Florida law in other reciprocal discipline cases under Rule 3-4.6. See also, The Florida Bar v. Friedman, 646 So. 2d 188, 190 (Fla. 1994); The Florida Bar v. Mogil, 763 So. 2d 303,306 (Fla. 2000); The Florida Bar v. Kandekore, 766 So. 2d 1004, 1007 (Fla. 2000); The Florida Bar v. Tipler, 8 So.3d 1109 (Fla. 2009). Attached to The Florida Bar's Complaint and admitted into evidence without objection were two Orders from the Disciplinary Board of the Alabama State Bar which delineated the specific factual findings at the trial and appellate level. See TFB Ex. 1, 2. Both of these orders disbarred Respondent from practicing law in the state of 9
Alabama. Respondent appealed the Disciplinary Board s orders to the Supreme Court of Alabama. By Certificate of Judgment, dated December 7, 2010, the Supreme Court of Alabama affirmed the disbarments. A copy of the Certificate of Judgment is attached to the Complaint as Exhibit C. On December 21, 2010, the Supreme Court of Alabama entered an Order disbarring Respondent. See TFB Ex. 1. The Alabama orders and opinions disbarring Respondent meet the requirements of Rule 3-4.6 showing conclusive proof of guilt of the acts of misconduct adjudicated in Alabama. The burden of showing why a foreign judgment should not operate as conclusive proof of guilt in a Florida disciplinary proceeding is on the accused attorney. Wilkes at 198. After The Florida Bar submitted its Complaint attaching the final adjudication of the Supreme Court of Alabama, the burden of proof shifted to Respondent. "The burden of showing why a foreign judgment should not operate as conclusive proof of guilt in a Florida disciplinary proceeding is on the accused attorney. " Tipler at 1117, citing Wilkes at 198. This Court has previously held that "we will initially accept a foreign jurisdiction's adjudication of guilt as conclusive proof of guilt of the misconduct charged. The burden then rests with the accused attorney to demonstrate why the foreign judgment is not valid or why Florida should not accept it and impose sanctions based thereon." Mogil at 306, citing Friedman, at 190. Respondent failed to meet his 10
burden and thus, the Referee properly relied upon the Alabama order as conclusive proof of misconduct. 11
ISSUE II THE REFEREE'S RECOMMENDED DISCIPLINE HAS A REASONABLE BASIS IN EXISTING CASE LAW AND IS SUPPORTED BY THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS Generally, the Court will not second-guess a referee's recommended discipline as long as there is a reasonable basis in the case law and it comports with the Florida Standards for Imposing Lawyer Sanctions. The Florida Bar v. Shoureas, 892 So.2d 1002, 1005-1006 (Fla. 2004); The Florida Bar v. Temmer, 753 So.2d 55, 558 (Fla. 1999). The Court's scope of review as to the Referee's recommended discipline is broader than that afforded to the Referee's findings of fact because it is the final arbiter of the appropriate disciplinary sanction. The Florida Bar v. Miller, 863 So. 2d 231, 234 (Fla. 2003). The Referee's recommended discipline of disbarment is appropriate and reasonable under relevant case law and the Florida Standards for Imposing Lawyer Sanctions. In recommending this disciplinary sanction, the Referee relied on Florida Lawyer Standards 5.21, which supports disbarment when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another, or with the intent to cause serious or potentially serious injury to a party or to the integrity of the legal process ; 12
Standard 6.21, which supports disbarment when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding and Standard 7.1 which supports disbarment "when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system". The Referee additionally considered The Florida Bar v. Mogil, 763 So.2d 303 (Fla. 2000), in which the Supreme Court found that a disbarment order in another state was conclusive proof of attorney's misconduct and conduct warranted discipline as an attorney, even though attorney was then a judge. The Referee also properly considered and relied upon The Florida Bar v. Walkden, 950 So.2d 407 (Fla. 2007), where disbarment for five years was appropriate sanction for attorney's contemptuous conduct of continuing to practice law after he was suspended and The Florida Bar v. Jones, 571 So.2d 426 (Fla. 1990), wherein the Supreme Court held that failure to comply with suspension order by engaging in practice of law on numerous occasions after effective date of suspension; failure to comply with rules of state bar and knowingly 13
misrepresenting to the court his compliance with suspension order warrants disbarment. The Referee further found that either of the 2 cases in this matter would, on their own, warrant disbarment. (ROR 7) The Bar contends that the Referee considered appropriate case law and Florida Standards in imposing the discipline of disbarment. 14
CONCLUSION For the foregoing reasons, The Florida Bar would respectfully request that the Court approve and adopt the Report of Referee in full, finding that the Referee properly relied upon and applied Rule 3-4.6, and that the Referee's recommended discipline of disbarment has a reasonable basis in the Florida Lawyer Standards Imposing Sanctions and the relevant case law. 15
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer Brief regarding Supreme Court Case No. SC11-925, TFB File No. 2009-00,804 (02B) has been mailed by certified mail #7008 1830 0000 4285 5355, return receipt requested, to Respondent, Herman Thomas, whose record bar address is 2200 Rue de Le Flore Street, Mobile, AL 36617-2413, and a copy was provided to Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, FL 32301 on this day of, 2012. Allison Carden Sackett, Bar Counsel The Florida Bar Tallahassee Branch Office 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5845 Florida Bar No. 582700 16
CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN Undersigned counsel does hereby certify that the Initial Brief is submitted in 14 point proportionately spaced Times New Roman font, and that the brief has been filed by e-mail in accord with the Court s order of October 1, 2004. Undersigned counsel does hereby further certify that the electronically filed version of this brief has been scanned and found to be free of viruses, by Norton AntiVirus for Windows. Allison Carden Sackett, Bar Counsel 17