IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Petitioner, vs. CASE NO. SC10-1896 TFB No(s).: 20073084(10) 20073085(10) 20083103(10) 20103022(10) HUMPHREY H. PACHECKER, a/k/a HUMBERT PACHECKER, a/k/a HUMBERTO PACHECKER, Respondent. THE FLORIDA BAR S ANSWER BRIEF Ghunise L. Coaxum Bar Counsel The Florida Bar The Gateway Center 1000 Legion Place, Suite 1625 Orlando, Florida 32801-5200 (407) 425-0473 Attorney No. 0077348 Lori S. Holcomb UPL Counsel The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Attorney No. 501018
TABLE OF CONTENTS Page TABLE OF CITATIONS. SYMBOLS AND REFERENCES... ii iii SUMMARY OF ARGUMENT 1 ARGUMENT.. 2 RESPONDENT S ARGUMENT THAT THE DATE OF THE TRIAL PREVENTED HIM FROM PARTICIPATING IN DISCOVERY IS WITHOUT MERIT ARGUMENT. 3 THE REFEREE S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE BASED ON COMPETENT, SUBSTANTIAL EVIDENCE AND THEREFORE MUST BE UPHELD CONCLUSION.. 7 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF TYPE, SIZE AND STYLE 10 i
TABLE OF CITATIONS Cases Page The Florida Bar v. Abreu. 4 833 So. 2d 752 (Fla. 1988) The Florida Bar v. Embassy of Heaven Church,.. 1,6 761 So. 2d 1053 (Fla. 2000) The Florida Bar v. Catarcio, 709 So. 2d 96 (Fla. 1998).. 3, 5 The Florida Bar v. Matus.. 5 528 So. 2d 895 (Fla. 1988) The Florida Bar v. Rodriguez,.. 5 509 So. 2d 1111 (Fla. 1987) The Florida Bar v. Savitt, 363 So. 2d (Fla. 1978) 5, 6 Rules and Regulations Title 8, Code of Federal Regulations 5 ii
SYMBOLS AND REFERENCES The Florida Bar shall be referred to as "The Florida Bar" or "the Bar." Humphrey H. Pachecker shall be referred to as Respondent. The Report of Referee shall be referred to as "ROR" followed by the referenced page number(s). (ROR- _) The Index of Record will be referred to as I followed by the tab number(s). (I- ) The transcript of the final hearing will be referred to as T followed by the cite page number(s). (T - _) The Bar's exhibits will be referred to as "B-Ex." followed by the exhibit letter(s). (B-Ex. ) Respondent s Brief will be referred to as Resp. Brief. followed by the page number(s). (Resp. Brief. - ) iii
SUMMARY OF ARGUMENT Respondent has asked this Court to reject the Report of Referee based on arguments that are not supported by the record. Respondent outlined numerous issues that are best summarized as: a challenge to the date of the final trial thereby rendering him unable to conduct discovery and a challenge to the Referee s findings of fact and conclusions of law. Respondent s argument that he was unable to participate in discovery because of his mistaken belief that the trial date was actually a status conference hearing is without merit. The record accurately reflects that the notices from the Referee make clear distinctions between case management conference and trial. Respondent acknowledged that he received both notices. Respondent also argues that the Bar s witnesses and documentary evidence did not support the Referee s findings of fact and conclusions of law. Part of this argument is that the Bar did not present testimony from all of the individuals named in the petition. Respondent has failed to show that the Referee s findings are clearly erroneous and lacking in evidentiary support as required by this Court s ruling in The Florida Bar v. Embassy of Heaven Church, 761 So. 2d 1053 (Fla. 2000). In fact, the record and case law support the Referee s findings of fact and conclusions of law. 1
ARGUMENT RESPONDENT S ARGUMENT THAT THE DATE OF THE TRIAL PREVENTED HIM FROM PARTICIPATING IN DISCOVERY IS WITHOUT MERIT Throughout his brief, Respondent states that he was unaware that the trial date was actually the trial date, and therefore, did not have the opportunity to conduct discovery or present witnesses. Respondent states that he interpreted the notice for trial to be a status conference. The notice to the parties from the referee specified that the case has been set for trial on April 21, 2011, at 9:00 am. (Emphasis supplied.) There was no other way to interpret the notice other than for a trial. The previous notice for status conference specified that the case has been set for a status conference hearing on March 1, 2011, at 3:00 pm. (Emphasis supplied.) It is difficult to see how the notices could be misinterpreted. The notice for trial listed deadlines for discovery and all motions. There was a sufficient amount of time between the date of the status conference and the date of the trial to provide Respondent with ample opportunity to gather witnesses and documentary evidence. In fact, contrary to Respondent s argument, he actively participated in the discovery process throughout the course of the litigation. The record reflects that Respondent filed several motions, affidavits, memoranda and letters with the referee. 2
Accordingly, Respondent s argument that he did not have the opportunity to participate in the discovery process because he misunderstood the trial date is without merit. THE REFEREE S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE BASED ON COMPETENT, SUBSTANTIAL EVIDENCE Respondent argues that the testimony from the Bar s witnesses and documentary evidence were not sufficient to support the referee s findings of fact and conclusions of law. In The Florida Bar v. Catarcio, 709 So. 2d 96, 98 (Fla. 1998), this Court held that a Referee s findings of fact are presumed correct and will be upheld unless clearly erroneous and lacking in evidentiary support. The party seeking review bears the burden of showing that the referee s findings are clearly erroneous and not supported by the record. Id. Respondent does not meet his burden. Throughout his brief, Respondent states that the Bar only called one witness at the final hearing, thereby somehow rendering the Referee s findings improper. Factually, this statement is incorrect. The Bar called two witnesses and Respondent testified. Respondent s argument concerning the credibility of the witnesses and evidence was already presented by Respondent at the final hearing and in his closing argument memorandum and rejected by the Referee. The Referee s findings of fact were based on 3
the testimony of witnesses, including the Respondent s statements, and the exhibits that were admitted into evidence. (ROR - pg. 5) Even it if were correct, the argument is irrelevant. The Bar need only prove one instance of unlicensed practice of law for this Court to issue an injunction. The facts presented at trial by the witnesses and Respondent show that Respondent engaged in the unlicensed practice of law. Witness Donna Scarlatelli testified that Elipidio and Brenda Mondragon presented her with a letter signed by Respondent wherein he informed them that attorney George Chernoff had passed away, but Respondent would be able to give them advice regarding their immigration case. (T - pg. 65) Respondent testified that he filed immigration petitions on behalf of Elipidio and Brenda Mondragon. Respondent also testified that he filed a Notice of Appeal with the Department of Homeland Security on behalf of Euro-Pane, and submitted immigration forms and pleadings in which he listed himself as attorney or representative. (T - pg. 87) Witness Ricardo Casado testified that he paid Respondent for legal services and legal advice about a request for a visa extension. (T - pg. 39) Respondent testified that he prepared and signed the immigration petitions on behalf of Ricardo Casado. (T - pg. 46) This Court has held that all of these activities constitute the unlicensed practice of law and are not authorized by Federal law. The Florida Bar v. 4
Abreu, 833 So. 2d 752 (Fla. 2002); The Florida Bar v. Matus, 528 So. 2d 895 (Fla. 1988); The Florida Bar v. Rodriguez, 509 So. 2d 1111 (Fla. 1987). Factually, there is ample evidence of unlicensed practice of law, even though all of the individuals named in the petition were not called as witnesses. This Court should accept the findings of fact by the referee because they were based on competent, substantial evidence. Catarcio, at 99. As to the conclusions of law, Respondent erroneously relies on Federal law and this Court s ruling in The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978) to support his argument that he could practice immigration law in Florida as a foreign attorney. Respondent is not a member of The Florida Bar or any other bar within the jurisdiction of the United States. (T - pg. 58) The referee correctly rejected Respondent s argument that he could practice immigration law based on the exceptions outlined in Title 8, C.F.R. 292 which allow practice by an attorney licensed in another state or territory of the United States. As Respondent is not a member of any bar within the jurisdiction of the United States, he is not authorized to practice immigration law. Additionally, the Referee specified that Respondent did not meet the criteria set forth in Title 8, C.F.R. 292.1 (a)(3), which provides in part that any reputable individual of good moral character may represent another before the Department of Homeland Security under 5
specific provisions. (ROR - pg. 8) Respondent did not meet any of the requirements. Consequently, Federal law does not authorize Respondent s activities. Nor does this Court s holding in Savitt authorize Respondent s activities. Savitt sets forth the parameters of interstate partnerships in Florida. As Respondent is not licensed in any state in the United States, Respondent cannot be part of an interstate partnership. However, Savitt can be read to extend to international partnerships as well. Even under this reading, Savitt does not authorize Respondent s conduct, as Savitt specifically prohibits a nonlawyer from giving legal advice concerning a right or obligation governed by Federal law if the nonlawyer is not in Florida on a transitory basis. Id. at 561. Assuming that a true interstate or international partnership existed under the guidelines set forth in Savitt, an assumption The Bar is not willing to concede, Respondent resided in Florida during the time he practiced. Respondent was not in Florida on a transitory basis. Respondent was therefore not authorized to provide legal advice and services in Florida. In The Florida Bar v. Embassy of Heaven Church, 761 So. 2d 1053 (Fla. 2000), this Court ruled that a Referee s findings regarding guilt are presumed correct and will be upheld unless clearly erroneous or without 6
support in the record. The Referee cited to portions of the record and case law to support the conclusions of law. As Respondent has failed to show that the findings of fact and conclusions of law were clearly erroneous and lacking in evidentiary support, the Report of Referee should be upheld by this Court. CONCLUSION The Respondent has failed to meet his burden of proof that the Referee s findings of fact and conclusions of law are clearly erroneous or without support in the record. Accordingly, The Florida Bar is requesting that this Court accept the Report of Referee and that Respondent be enjoined from engaging in the unlicensed practice of law. 7 Respectfully submitted, JOHN F. HARKNESS, JR. Executive Director The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Attorney No. 123390 LORI S. HOLCOMB UPL Counsel The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300
(850) 561-5600 Attorney No. 501018 AND GHUNISE L. COAXUM Bar Counsel The Florida Bar 1000 Legion Place, Ste. 1625 Orlando, Florida 32801-1050 (407)425-0473 Attorney No. 0077348 By: Ghunise L. Coaxum Bar Counsel 8
CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and seven (7) copies of The Florida Bar s Answer Brief have been sent by First Class Mail to the Clerk of the Court, The Supreme Court of Florida, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida, 32399-1927; a copy of the foregoing has been furnished by electronic filing to the Clerk of the Court; a copy of the foregoing has been furnished by First Class Mail to, Respondent, Humphrey H. Pachecker, 4059 Santa Barbara Drive, Sebring, Florida 33875; and a copy of the foregoing has been furnished by First Class Mail to Lori S. Holcomb, UPL Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this day of November, 2011. Respectfully submitted, Ghunise L. Coaxum Bar Counsel Florida Bar No. 077348 9
CERTIFICATE OF TYPE, SIZE AND STYLE Pursuant to Florida Rule of Appellate Procedure 9.210(a), the undersigned counsel does hereby certify that The Florida Bar s Answer Brief is submitted in 14 point proportionately spaced Times New Roman font. Ghunise L. Coaxum Bar Counsel Florida Bar No. 0077348 10