IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, v. DARYL L. MERL, Supreme Court Case No. SC07-715 The Florida Bar File No. 2007-70,316(11D) Respondent. / REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: Pursuant to the undersigned being duly appointed as referee for the Supreme Court of Florida to conduct disciplinary proceedings as provided for by Rule 3-7.6 of the Rules Regulating The Florida Bar, review of a Disbarment on Consent was undertaken. All of the pleadings are forwarded with this report and the foregoing constitutes the record in this case. The following attorneys appeared as counsel for the parties: On behalf of The Florida Bar: Jennifer R. Falcone Moore, Bar Counsel The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida 33131 On behalf of the Respondent: Mycki Ratzan, Attorney for Respondent 9130 South Dadeland Boulevard Suite 1910 Miami, Florida 33156
On September 28, 2007, Respondent submitted a Disbarment on Consent in this cause. In response, The Florida Bar filed a Petition for Approval of Disbarment on Consent which reflects the position of The Florida Bar, as approved by the Designated Reviewer of the Eleventh Judicial Circuit, that Respondent s plea be accepted. Having reviewed the record of these proceedings, I find that Respondent s plea and the recommendation of The Florida Bar as to terms of discipline are both fair to the Respondent and in the best interest of the public. Accordingly, Respondent s Disbarment on Consent and the terms of discipline recommended by The Florida Bar are accepted and hereby adopted as the recommendation of this referee in this matter. II. FINDINGS OF FACT: In his Disbarment on Consent, Respondent, for the purpose of this action, admits certain factual matters which I hereby accept and adopt as the findings of fact in this cause, to-wit: A. Respondent represented Ms. Ghislaine Ferrer in a lawsuit, resulting in a monetary award. However, the award check Respondent issued to Ms. Ferrer from his trust account was returned for insufficient funds. A complaint was filed with the Florida Bar, and the Staff Auditor of the Florida Bar conducted 2
an audit of Respondent s trust account, identified as Law Offices of Daryl L. Merl & Associates, P.A., (IOTA ACCOUNT), maintained at Transatlantic Bank account #2057282408. B. The Staff Auditor s review of the bank records revealed clear, convincing, and undeniable evidence that Respondent misappropriated thousands of dollars of clients funds. Respondent s pattern was to use recent deposits to satisfy obligations incurred in prior periods. C. Check number 21100 in the amount of $5,967.46 payable to Ghislaine Ferrer, was issued on July 14, 2006. On that date the balance in the trust account was only $951.20. When check number 21100 was presented to the bank for payment on July 19, 2006, it created an overdraft in the amount of $5,865.65. D. With the return of check number 21100, the balance in the trust account on July 20, 2006 was $101.81. The next transaction recorded in the trust account was a loan in the amount of $25,000.00 from an attorney identified as Eric P. Littman. With these funds Respondent paid: $5,045.90 to a client identified as Norma Fernandez; $1,649.17 to a client identified as Esterio Morales; and $7,808.95 to a client identified as Isla W. Loxley. Respondent then issued three (3) checks to himself totaling $13,000.00, which left an overdraft in the amount of $2,336.71 in the trust account on July 31, 2006. 3
E. On August 2, 2006, Eric P. Littman loaned an additional $25,000.00 to Respondent. Those funds were used to cover the previous overdraft, as well as to pay $7,162.50 to Stoladi Property. Respondent then issued four (4) checks to himself totaling $15,200.00, which left a balance of $171.33 in the trust account. F. On August 11, 2006, Respondent deposited into the trust account a check from Allstate Insurance Company, in the amount of $30,000.00, made payable to Marilyn Friedman and Gerald Friedman, individually and jointly as husband and wife, and to Daryl Merl as their attorney. G. Respondent used these funds to pay $15,000.00 to an individual identified as Sonia Silverstein, and $5,000.00 to an individual identified as Carlos Auspitz. However, the Staff Auditor was not able to ascertain that any funds were received in the trust account from Ms. Silverstein or Mr. Auspitz. Additionally, Respondent issued two (2) checks to himself totaling $9,000.00, which left a balance, in the amount of $1,266.13, in the trust account on August 14, 2006. H. During the period reviewed, the Staff Auditor found that funds from twenty (20) clients totaling $345,949.00, were deposited into Respondent s trust account. Furthermore, except for the $22,052.27 paid to three (3) clients 4
identified supra, the Staff Auditor was not able to ascertain that any funds had been paid to the remaining seventeen (17) clients. I. Since Respondent was entitled to at least a third of the funds received as fees, the balance that Respondent should have had in the trust account to pay the clients would be approximately $208,072.11. However, as of January 31, 2007, the balance in Respondent s trust account was $4.30. That figure represents a shortage of $208,067.81 just to cover the funds owed to the twenty (20) clients. J. Respondent has misappropriated thousands of dollars of client funds in this manner. Additionally, Respondent was arrested and has pending criminal felony charges as a result of these activities. III. RECOMMENDATION AS TO GUILT: Based upon Respondent s admissions, I recommend that Respondent be found guilty of violating Rule 4-8.4(b) (commission of a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects) and 4-8.4(c) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct; and Rule 5-1.1(b) (misappropriation of trust account funds) of the Rules Regulating Trust Accounts. 5
IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: Having reviewed the record of these proceedings, I find that Respondent's plea and the recommendation of The Florida Bar as to terms of discipline are both fair to the Respondent and in the best interest of the public. Accordingly, I recommend that Respondent be found guilty of misconduct justifying disciplinary measures and that Respondent receive the following discipline: A. Disbarment. B. Respondent agrees to make restitution to all persons whose funds have been defalcated and/or the Clients Security Fund prior to seeking readmission with the Florida Board of Bar Examiners. V. PERSONAL HISTORY, PAST DISCIPLINARY RECORD: Prior to recommending discipline pursuant to Rule 3-7.6(k)(1), I considered the following: A. Personal history of Respondent: Age: 52 Date Admitted to the Bar: January 18, 1980 B. Prior Discipline: Respondent received an admonishment for minor misconduct by the Eleventh Judicial Circuit Grievance Committee G on May 14, 1993. Additionally, Respondent was suspended for a period of 90 days and under 2 years probation by order of the Supreme Court of Florida dated November 4, 2004 in Supreme Court Case No. SC04-190. Finally, Respondent was emergency suspended 6
by order of the Supreme Court of Florida dated March 5, 2007 in Supreme Court Case No. SC07-292. VI. STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED: I find that the following costs were reasonably incurred by The Florida Bar in these proceedings and should be assessed against respondent: Administrative costs...$ 1,250.00 Branch Auditor s costs... $ 2,110.50 Staff Investigator s costs. $ 1,217.76 Costs associated w/ inventory proceeding (van rental).... $ 51.52 TOTAL: $ 4,629.78 It is recommended that the foregoing costs be assessed against Respondent. It is further recommended that execution issue with interest at the prevailing statutory rate to accrue on all costs not paid within 30 days of entry of the Supreme Court's final order unless a waiver is granted by the Board of Governors of The Florida Bar. 7
DATED this day of, 2007. ELLEN SUE VENZER Circuit Court Judge cc: Jennifer R. Falcone Moore, Bar Counsel Mycki Ratzan, Attorney for Respondent Kenneth L. Marvin, Staff Counsel 8