IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR Complainant, v. Case No. SC07-747 TFB No. 2004-11,261(13D) JULIAN STANFORD LIFSEY Respondent. / REPORT OF THE REFEREE 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 April 24, 2007, the Florida Bar filed its Complaint against Respondent as well as its Request for Admissions in these proceedings. On November 9, 2007, a final hearing was held in this matter. All of the aforementioned pleadings, responses thereto, exhibits received in evidence and this Report constitute the record in this case and are forwarded to the Supreme Court of Florida. 1
The following attorneys appeared: Counsel for The Florida Bar: Counsel for Respondent: Troy M. Lovell, Esquire Maria L. Torres, Attorney-at-Law N. Burton Williams, Esquire 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. The Florida Bar, Petitioner, has filed a complaint against Respondent, Julian Stanford Lifsey. The Complaint alleges that Respondent has violated three Rules Regulating The Florida Bar: (1) Rule 4-3.3(a) (lack of candor to tribunal); (2) Rule 4-8.4(c) (conduct involving dishonesty); and (3) Rule 4-8.4(d) (conduct prejudicial to the administration of justice). C. Reservation on Rulings on Motions Insufficient /Indefinite Pleading Respondent s motion to dismiss the complaint because of insufficient or indefinite pleadings is denied. The 2
referee finds the pleadings were sufficient and definite enough for the Respondent to prepare and defend the complaint. Allegations for Which No Proof Was Offered Respondent s request to dismiss paragraph 26 of the complaint is denied. The complaint was filed and no objection to the complaint was filed by the presiding member of the grievance committee. Allegations for Which No Proof Was Offered Respondent s request to dismiss paragraphs 6 & 10 of the complaint is denied. Exhibits were introduced showing when the record was transmitted to the district court of appeal. Prejudicial Delay -- Respondent seeks dismissal of this proceeding based on allegations that The Bar unduly delayed the proceeding. Rule 3-7.4(l) requires that a complaint be filed promptly after the finding of probable cause by the grievance committee. Probable cause was found on or about March 8, 2005. The complaint was filed on April 24, 2007, twenty-five months later. Clearly The Bar did not file the complaint promptly. Respondent alleges he has been prejudiced by the delay. First, Respondent argues the district court s records relating to it review of the two motions were the best evidence of such review and were destroyed two months prior 3
to filing of the complaint. However, this referee can not find that there was actual prejudice or that Respondent was prejudiced in preparing a defense as to such records. The clerk s review of the two motions are not necessary to determine violation of bar rules, given the motions were available for review and use during the preparation of the case. Moreover, the referee s finding as to whether the content of the motions contained false or misleading information can be made without the district court s review records. Second, Respondent argues the complaint should be dismissed because witness memories faded and circuit court employees retired or otherwise left that office during that 25 month period between the finding of probable cause and the filing of the complaint, and this affected his ability to defend the complaint. While this may have made it more difficult for Respondent, this referee can not find he was prejudiced. The Clerk had records dating back to 2001 and had all records pertaining to the Harrison appeal, as well as records relating to Respondent s payment of the appeal and preparation fees. The request to dismiss the complaint because of the Bar s delay in filing the complaint is denied. Waiver/Res Judicata Respondent raises defenses of waiver and re judicata based on The Bar s handling of this case and another case, TFB 2005-11,043(13D), which was referred to The Bar by the second district court of 4
appeal. These defenses are without merit. The facts in the other case do not constitute a defense or bar to the prosecution of this case. D. Motion for Contempt Proceedings Before Judge Manuel Lopez The Respondent represented Allison Harrison in her dissolution of marriage proceedings against Don E. Harrison. A final judgment of dissolution of marriage was entered on or about July 24, 2002. Thereafter, on or about September 6, 2002, Respondent filed a notice of appeal on behalf of his client. At the time of filing the appeal the Respondent did not pay the filing fee. The Clerk of the Circuit Court for Hillsborough County did not prepare the record within 50 days of the filing of the notice of appeal. For many years the circuit court clerk had a policy of charging a fee to prepare the appellate record. There was no apparent statutory authority for such a fee and the Clerk has since terminated such practice. However, local attorneys, including the Respondent, regularly paid the fee. As it relates to the Harrison Appeal, the Respondent failed to pay the fee and the Clerk of the Circuit Court did not prepare the record. By letter dated September 17, 2002, the Clerk s office advised the Respondent that it needed the $250.00 filing fee made payable to the Second DCA and the clerk s fee of $154.00 payable to the Clerk of the Circuit Court. Respondent testified he could not specifically say whether he received the letter, but 5
assumes he probably did receive it. Respondent paid the district court fees on October 7, 2002. Respondent testified he knew the Clerk would not transport the record without the filing fee, but he believed the clerk would still prepare the record without prior payment of the preparation fee. On or about July 9, 2003, during a Motion for Contempt hearing in the Harrison case, Judge Manuel Lopez inquired about the status of the appeal and why the Respondent had not filed his brief. The Respondent told Judge Lopez that the initial brief had not been filed because the clerk had not prepared the record on appeal. The following exchange occurred at the hearing: The Court: Why haven t you filed your brief? Mr. Lifsey: Because I don t have a record on appeal, Judge, because the clerk has not prepared it. The Court: Have you filed another extension? Mr. Lifsey: I did, Your Honor, and I specified to them as I have four other appeals going on, and for whatever reason, this clerk is overwhelmed. And it s not just me, Judge, it s a whole bunch of other cases of other lawyers which I am aware of. The record on appeal, you cannot do it you can t even file a brief, because in the brief it is required that in your statement of facts and in your statement of the case you refer to specifics of the record on appeal and show forward on each page.... The Court: You haven t filed your brief because you don t have a record on appeal? 6
Mr. Lifsey: Right. The Court: That s why you haven t filed your brief? Mr. Lifsey: That s correct.... Mr. Baccarella: That s perfectly clear, but I m saying what has transpired is that if anybody has been prejudiced or injured because of delay, it s not by our doing. It s by Mr. Lifsey s doing. The Court: Well, if Mr. Lifsey is correct in telling me the court reporter has been dilatory, that s not Mr. Lifsey s fault. Mr. Baccarella: No, There was no court reporter in the case. None. The Court: There wasn t a court reporter at the final hearing? Mr. Lifsey: It s the clerk, Your Honor. I hate to interrupt. Just so I can clear something up, it s not the court reporter who s dilatory. It is the clerk of the court who prepares the record on appeal. Respondent did not advise Judge Lopez that he had not paid the clerk s preparation fee. Respondent s actions were knowing and intentional. Judge Lopez described the hearing on July 9 th as being very contentious. During that hearing Judge Lopez admonished Mr. Dominic Baccerella, the attorney for the former husband Mr. Don Harrison. After the hearing Mr. Baccarella went to the Judge Lopez s chamber and apologized for his in-court conduct. Judge Lopez thereafter went to the clerk s office to inquire about the status of the appeal. Judge Lopez gleaned the appellate 7
file, spoke to one of the clerks in the appellate division and subsequently concluded that Respondent had misrepresented things to him regarding the status of the appeal. Mr. Joseph Fritz, who represented Ben Harrison, the former husband s father regarding issues relating to ownership of the marital property, and also represented the former husband in the appeal, also attended the July 9 th hearing. He and Mr. Baccarella suspected Respondent had failed to pay the filing fees and they set out to verify their suspicions. Mr. Baccarella spoke to a clerk and was given a copy of a marked up document with notations regarding alleged 14 communications with Respondent regarding the nonpayment of the filing fees. While Mr. Baccarella testified the clerk had contacted Respondent 14 times, the other evidence does not support his testimony. The evidence suggests that the clerk reviewed the files 14 times to see if the fees had been paid. Mr. Baccarella ran into Judge Lopez in the hall in front of the clerk s office as he was leaving and Judge Lopez was entering the office. Prior to reviewing any records or discussion with the clerk Mr. Baccarella advised Judge Lopez that the Respondent had not paid the filing fees. There is some dispute as to whether Mr. Baccarella handed Judge Lopez the clerk s 8
document or simply told him about it. Respondent later learned about the contact between Judge Lopez and the opposing counsel from his client. On July 11, 2003, the Respondent submitted the preparation fee to the circuit court of clerk, which was received on July 14, 2003. The record was thereafter prepared within six days and transmitted to the Second DCA. Respondent s assertion that the clerk s office was overwhelmed was false and not supported by competent evidence. On or about July 25, 2003, the Respondent and his client filed a Verified Motion for Recusal and To Disqualify the Honorable Manuel Lopez. They made allegations, which they both duly swore to be true and correct and made of their personal knowledge, including the following By their actions Judge Lopez and Baccarella have joined forces against the Petitioner and her attorney, they are now acting in concert for an apparent unified purpose either against the Petitioner or her Attorney which clearly undermines the impartiality of the Judge and Court in these Proceedings. An additional affidavit in support of the motion was filed by the former wife. On August 18, 2003 Attorney Baccarella served an objection to the Respondent and former wife s verified motion to disqualify. Attorney Fritz also submitted an affidavit in support of the objection to the motion to disqualify. Judge Lopez admittedly was upset about the motion. 9
Fla. R. Jud. Admin. 2.330(f) (previously numbered 2.160) requires the judge against whom an initial motion to disqualify has been filed to determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. For successive motions, the judge may rule on the facts. The motion must be ruled upon immediately, but no later than 30 days after the service of the motion. The rule provides that a motion not ruled upon within 30 days of service be deemed granted. It appears the motion was not ruled upon within 30 days and Judge Lopez continued to sign orders until he entered an order of recusal on his own motion on September 4, 2003. Thereafter, Judge Lopez filed a complaint with The Florida Bar concerning Respondent s representations made during the hearing about the appellate record. While he signed the complaint on October 16, 2003, he did not forward it to The Bar until on or around March 12, 2004. He said he delayed filing the complaint because he wanted to think about it before he accused an attorney of misconduct. Respondent also filed a complaint against Judge Lopez with the JQC regarding the ex parte communications. Cooler heads may have resulted in a different reaction from all involved. However, the only issue this referee must consider is whether the Respondent s actions and what he said or did not say to Judge Lopez during the motion hearing violate bar rules. 10
Based on all the evidence the referee finds that Respondent intentionally withheld the information about his failure to pay the clerk s fee. By doing so Respondent mislead the trial court about the true status of the appeal and the cause of the delay and thus violated Rule 4-8.4(c) and Rule 4-3.3(a)(1). Respondent s testimony that he was told by the clerk s office that it was overwhelmed was false. The clerk s documents, the testimony of witnesses, and the prompt preparation of the record by the clerk after the fee was paid contradict Respondent s testimony. Respondent s argument that the fee was not statutorily authorized is not relevant to the issue of making false or misleading statements to the trial court. And moreover, the Respondent never raised the issue of an unauthorized fee to the clerk s office when the fee was assessed, prior to, or even when he paid the fee. E. Motions for Extension of Time to File Initial Brief Pursuant to Fla. R. App. Proc. 9.300(a) a motion for extension of time shall contain a certificate that the movant s counsel has consulted opposing counsel and that the movant s counsel is authorized to represent that opposing counsel either has no objection or will promptly file an objection. On or about March 5, 2003, Respondent filed a Motion for Extension of Time to File Initial Brief with the Second District Court of Appeal. He 11
filed a second motion on or about June 23, 2003. Paragraph three of each motion states: The undersigned has contacted opposing counsel, and counsel states that he does not does have objection to the extension of time. Respondent did not check either line before submitting the motions. Respondent failed to contact opposing counsel prior to filing either motion. Respondent testified as follows: Q. Why didn t you contact Mr. Baccarella before submitting these two orders for extension of time to the District of Appeal? A. Mr. Baccarella and I were not on the best of terms based upon what had happened in the proceedings and based upon what was going on and where I was attempting to obtain additional funds for my client based upon her temporary alimony pursuant to the final judgment had run out and I filed a supplemental petition to receive the additional funds during the pendency of the appeal, and I also filed to hold his client in contempt and also filed within which to determine and have his client to attend a deposition. Mr. Baccarella, when I went to schedule these motions and to schedule hearings, he advised his secretaries not to schedule anything with me.... Q. What did you believe you were telling the court when you sent in that motion with that form paragraph three with both blanks unfilled? A. That I have had no communication and I don t know 12
whether he objects or doesn t object, being opposing counsel. That s why -- if I had checked one of them, then I clearly would have had a conversation. By checking none I ve had no conversation. Respondent s testimony that his belief that by not checking either line he was advising the district court of appeal that he had no conversation with opposing counsel is not credible. The first part of the compound sentence clearly states that Respondent contacted opposing counsel. Respondent testified that he had not contacted opposing counsel. Moreover, he testified to having prior incidents of alleged unprofessional behavior by opposing counsel and he had made notations and otherwise advised the court of such behavior. He could have made the same disclosures to the district court of appeal. The district court accepted and granted both motions without the proper execution. This certainly complicated the issue. However, the fact that the district court accepted the motions without the required executions does not control the substance and representations of the statement made by the Respondent in the motions. F. Prejudice to the Administration of Justice Rule 4-8.4(d) prohibits conduct that is prejudicial to the administration of justice. The judges of this state rely on all participants to be honest and truthful. This is particularly expected of attorneys, who are officers of the court. An attorney 13
making false and misleading statements to a judge clearly is conducting himself in a manner that is prejudicial to the administration of justice. Respondent mislead Judge Lopez. Respondent intentionally omitted information that should have been provided to the judge. That action is prejudicial to the administration of justice. III. RECOMMENDATIONS AS TO GUILT A. I recommend that Respondent be found guilty of violating Rule 4-3.3(a), Lack of Candor to Tribunal. The referee finds that The Bar has proven by clear and convincing evidence that Respondent violated Rule 4-8.4(c) and Rule 4-3.3(a)(1) by submitting two false statements to the district court of appeal. B. I recommend that Respondent be found guilty of violating Rule 4-8.4(c), A Lawyer Shall Not Engage in Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation for his actions that occurred during the July 9 th hearing, as well as the motions submitted to the district court of appeals. C. I recommend that Respondent be found guilty of violating Rule 4-8.4(d), Conduct Prejudicial to the Administration of Justice. 14
IV. RECOMMENDATIONS AS TO DISCIPLINARY MEASURES TO BE APPLIED The referee is reserving on recommendations as to disciplinary measures to be applied. A hearing has been scheduled for March 20, 2008 at 2:30 p.m. to consider sanctions. Dated this day of February, 2008. Debra Roberts, County Judge/Referee West Pasco Judicial Center 7530 Little Road New Port Richey, FL 34654 CERTIFICATE OF SERVI CE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been e-mailed to THE HONORABLE THOMAS HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32301, and that copies were mailed by regular U.S. Mail to Kenneth Martin, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399-2300, Troy M. Lovell, Assistant Staff Attorney, The Florida Bar, 5521 W. Spruce Street, Suite C-49, Tampa, FL 33607-5958 and N. Burton Williams, Esq., Respondent s Counsel, 324S. Hyde Park Avenue, Suite 375, Tampa, Florida 33606 on this day of February, 2008. County Judge/Referee 15