IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Supreme Court Case No. SC08-1210 Complainant, The Florida Bar File v. Nos. 2007-50,011(17B) 2007-51,629(17B) JANE MARIE LETWIN, Respondent. / AMENDED REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: 2007-50,732(17B) 2008-50,265(17B) The Florida Bar filed its complaint with the Supreme Court of Florida on or about June 24, 2008. Thereafter, the undersigned was appointed to preside as referee in this proceeding by order of the Chief Judge of the Eleventh Judicial Circuit. A final hearing in this cause was held on February 27, 2009. During such final hearing, respondent admitted to all allegations and rule violations as set forth in The Florida Bar s complaint. The pleadings and all other papers filed in this cause, which are forwarded to the Supreme Court of Florida with this report, constitute the entire record. During the course of these proceedings, respondent appeared pro se and The Florida Bar was represented by Alan Anthony Pascal. Alvin Ernest Entin, Esq.,
entered a limited appearance, providing representation for respondent only at the final hearing on February 27, 2009. II. FINDINGS OF FACT: A. Jurisdictional Statement: Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, and subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. B. Narrative Summary: COUNT I The Florida Bar File No. 2007-50,011(17B) 1. Respondent represented Numantia Tower, Inc., in the case styled Numantia Tower, Inc., (hereafter Numantia) v. Pericles II Holding Corp, et al., (hereafter Pericles), Case No. 03-23683, in the Circuit Court of the 11th Judicial Circuit, in and for Miami-Dade County, Florida. 2. On or about September 9, 2005, the Appellate Court awarded Pericles attorney s fees under Fla. Stat. 57.105. 3. A hearing to determine the amount of attorney s fees was scheduled for February 1, 2006. 4. In preparation for the February 1, 2006 hearing, Pericles propounded a request for production and interrogatories to Numantia and respondent. 5. Respondent failed to respond on her own behalf or on behalf of her client, Numantia. 2
6. Respondent also failed to depose Pericles expert and failed to communicate in any way with Pericles, prior to the hearing date. 7. Respondent s inaction was tantamount to a lack of diligent representation of her client, Numantia. 8. On February 1, 2006, at approximately 1:30 p.m., the court received a message that respondent requested a continuance of the hearing, which was to be held at 3:00 p.m. later that day. 9. The court called respondent on the telephone and respondent gave reasons for her request for continuance. 10. The court advised respondent that if a stipulation between the parties could not be reached, respondent would be required to appear. A stipulation was not reached. 11. Respondent failed to appear at the hearing as required. 12. The court called respondent at 3:00 p.m. to ascertain her whereabouts. 13. Respondent failed to answer her telephone and the court left a detailed message. 14. The court called again during the hearing and respondent again failed to answer the call. 15. The court entered a Final Judgment for Appellate Attorneys Fees against Numantia Tower, Inc., and respondent. 3
16. This order awarded attorney s fees in the amount of $31,135.52 to Pericles. 17. The award was against Numantia in the amount of $15,567.76 and against respondent individually in the amount of $15,567.76. 18. Respondent knowingly disobeyed the court by failing to appear on behalf of her client at the hearing. 19. On or about February 3, 2006, based on respondent s willful failure to appear in court, issued an order directing respondent to show cause why she should not be held in indirect criminal contempt of court based on her failure to respond to Pericles attempts to prepare for the hearing and her failure to appear on February 1, 2006, as required. A copy of the February 3, 2006 order was attached to the complaint as Exhibit 1. 20. On March 10, 2006, after the hearing, the court found respondent in indirect criminal contempt and ordered that she pay the entire $31,135.52 attorney s fee award to Pericles. A copy of the court s judgment was attached to the complaint as Exhibit 2. 21. On June 8, 2006, the court sentenced respondent to 6 months reporting probation with numerous conditions. A copy of the court s sentence and orders of supervision was attached to the complaint as Exhibit 3. 4
22. Respondent failed to comply with such conditions, as evidenced by the State of Florida Department of Corrections Violation Report, dated November 8, 2006. A copy of this report was attached to the complaint as Exhibit 4. 23. Respondent appealed the court s finding of contempt and such finding was upheld by the appellate court by order dated April 11, 2007. 24. Again, respondent knowingly disobeyed the court by failing to comply with any of the terms of her probation. COUNT II The Florida Bar File No. 2007-51, 629(17B) 25. Respondent represented Gerry Goodin in the case styled John Papp, et al., including Gerry Goodin v. Robert L. Lipton, Inc. et al., including Huntington LT, (hereafter Huntington ), Case No. 03-02-020662-08, in the Circuit Court for the 17th Judicial Circuit, in and for Broward County, Florida. 26. On June 23, 2005, a final judgment was entered in favor of Huntington against Gerry Goodin, in the amount of $9,665.63. 27. Huntington scheduled a deposition of Gerry Goodin for October 17, 2005, and respondent was made aware of such date by letter dated September 13, 2005. 5
28. On or about October 13, 2005, respondent contacted Huntington s counsel because respondent wanted to postpone the deposition and enter into a settlement agreement. 29. Such settlement agreement was executed and respondent s client, Goodin, agreed to make payments on the judgment with the first payment being due October 21, 2005. 30. Such payments were not made and Huntington issued a subpoena duces tecum, setting Goodin s deposition for December 5, 2005. 31. Respondent refused to produce her client on the day of deposition, and Huntington rescheduled the deposition for December 16, 2005. 32. Respondent again refused to produce her client for deposition. 33. A certificate of non-attendance was obtained against Goodin and respondent. 34. Based on the above, Huntington filed a motion for sanctions against respondent and a motion for order to show cause against Goodin. A copy of the motion for sanctions was attached to the complaint as Exhibit 5. 35. On January 31, 2007, the court entered an order for sanctions against respondent and against Gerry Goodin. A copy of the order was attached to the complaint as Exhibit 6. 6
36. The court s findings of fact provided that respondent was being sanctioned for her pattern of unprofessional behavior, which included, by Attorney Letwin s own admission, the intentional interference with Huntington LT s discovery attempts. 37. The court s sanctions included $3,100 to be paid by respondent for her admittedly intentional and unprofessional behavior. See Exhibit 6. 38. Respondent knowingly disobeyed her obligations under the rules of discovery and admitted to this ethical misconduct before the court. 39. Obviously, respondent s actions were prejudicial to the proper administration of justice and involved intentional dishonesty and misrepresentations by respondent. COUNT III The Florida Bar File No. 2007-51, 732(17B) 40. Respondent represented Wanda Rodriguez in a bankruptcy case in which Ms. Rodriguez was a creditor. 41. After accepting her fee, respondent filed an adversary proceeding on behalf of Rodriguez. 42. Due to the debtor s non-response, an order on default judgment was entered in favor of Rodriguez. A copy of the order was attached to the complaint as Exhibit 7. 7
43. In that order, the court gave plaintiff 10 days to execute on the default judgment. See Exhibit 7. 44. Respondent made no attempt to comply with the court s order. 45. On or about March 22, 2007, the case was dismissed for failure to diligently prosecute the default proceeding. A copy of the court s dismissal order was attached to the complaint as Exhibit 8. 46. Throughout the representation, respondent failed to properly communicate with Rodriguez. 47. Also, despite Rodriguez numerous attempts to contact respondent, respondent failed to keep her properly informed as to the status of her case. case. 48. Respondent further failed to inform Rodriguez of the dismissal of her COUNT IV The Florida Bar File No. 2008-50, 265(17B) 49. Respondent represented Jose Aldavero in the case styled Jose Miguel Aldavero and Yolanda Arias, v. Roland St. Louis, Alina M. St. Louis, and Peter A. Gonzalez, Case No. 05-22098-Seitz/McAliley, in the United States District Court, Southern District of Florida. 50. On or about March 16, 2006, the Honorable Patricia A. Seitz, found and stated in her order that respondent must bear some responsibility for 8
unreasonably multiplying these proceedings. A copy of this order was attached to the complaint as Exhibit 9. 51. Consequently, on April 10, 2006, Judge Seitz ordered that respondent pay a total of $5,802.25 in attorney s fees as sanction pursuant to 28 U.S.C. 1927. A copy of this order was attached to the complaint as Exhibit 10. 52. When Respondent failed to make any payment on such sanction, the defendants filed a motion for contempt. 53. In an order dated November 17, 2006, the court found respondent in contempt and ordered that respondent pay the $5,802.25 sanction no later than January 3, 2007. A copy of this order was attached to the complaint as Exhibit 11. 54. Respondent appealed the magistrate s court order dated November 17, 2006 to the Eleventh Circuit Court of Appeals without first challenging the order before the Honorable Patricia A. Seitz, the presiding district court judge. 55. The Court of Appeals dismissed the appeal for lack of jurisdiction. 56. Respondent s appeal was frivolous and without merit. 57. Respondent again failed to pay the sanction. 58. Defendants moved for another order to show cause against respondent. Respondent s continued actions in failing to satisfy the original sanction order were prejudicial to the proper administration of justice. 9
59. A hearing was held on March 6, 2007, and after such hearing, the court entered an order dated March 19, 2007 which recommended that respondent s actions be referred to The Florida Bar as well as the Southern District Ad Hoc Committee on Attorney Admissions, Peer Review, and Attorney Grievance. A copy of the March 19, 2007 order issued by U.S. Magistrate Judge Chris McAliley was attached to the complaint as Exhibit 12. 60. Such order found that respondent had contemptuously defied the court s November 17, 2006 order compelling her to pay $5,802.25 in sanctions on or before January 3, 2007. See Exhibit 12. 61. The court further found that respondent continues to actively engage in the practice of law, and does so in a manner that unreasonably burdens the judiciary and harms other parties by causing them to needlessly expend time and effort and incur legal fees. Her repeated poor judgment and unprofessional conduct puts at risk the legitimate interests of her clients. For these reasons, this Court believes that Ms. Letwin should not be permitted to practice law, at the very least before this Court. See Exhibit 12. 62. The March 19, 2007 order was affirmed by United States District Judge Patricia Seitz by order dated August 2, 2007. A copy of the August 2, 2007 was attached to the complaint as Exhibit 13. 10
III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY: My recommendation as to guilt is as follows: A. As to all counts: Respondent violated R. Regulating Fla. Bar 3-4.2 [Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline.]; 4-8.4(a) [A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.]; and 4-8.4(d) [A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice ]. B. As to Count I, The Florida Bar File No. 2007-50,011(17B): By the conduct set forth above, respondent violated R. Regulating Fla. Bar 4-1.3 [A lawyer shall act with reasonable diligence and promptness in representing a client.]; 4-3.2 [A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.]; and 4-3.4(c) [A lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.]. B. As to Count II, The Florida Bar File No. 2007-51,629(17B): By virtue of the foregoing conduct, respondent violated R. Regulating Fla. Bar 3-4.3 [The commission by a lawyer of an act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney s relations as an 11
attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.]; 4-3.4(c) [A lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.]; and 4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.]. C. As to Count III, The Florida Bar File No. 2007-51,732(17B): By the conduct set forth above, respondent violated R. Regulating Fla. Bar 3-4.3 [The commission by a lawyer of an act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.]; 4-1.3 [A lawyer shall act with reasonable diligence and promptness in representing a client.]; 4-1.4(a) [A lawyer shall (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer s conduct when the lawyer knows or 12
reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.]; 4-1.4(b) [A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.]; 4-3.2 [A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.]; and 4-3.4(c) [A lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.]. D. As to Count IV, The Florida Bar File No. 2008-50,265(17B): By the conduct set forth above, respondent violated R. Regulating Fla. Bar 3-4.3 [The commission by a lawyer of an act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney s relations as an attorney or otherwise, whether committed within or outside the state of Florida and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.]; 4-3.1 [A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous ]; 4-3.2 [A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.]; and 4-3.4(c) [A lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.]. 13
IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that respondent be suspended from the practice of law for a period of 90 days with automatic reinstatement at the end of the period of suspension as provided in R. Regulating Fla. Bar 3-5.1(e) and further that respondent be ordered to pay the bar s costs in this matter. Additionally, following her suspension, respondent shall be placed on probation for a period of three years. During such probation, respondent shall have a monitoring and supervising attorney. Respondent agrees to be supervised by an attorney acceptable to The Florida Bar. The supervising attorney shall provide continuous monitoring of respondent's client case files and provide quarterly reports to The Florida Bar regarding the status of the client files and inform The Florida Bar if respondent is meeting her deadlines, returning phone calls and answering correspondence. Respondent is responsible for submission of the quarterly reports to the headquarters office of The Florida Bar. The quarters are March 31, June 30, September 30 and December 31. Respondent will pay a quarterly monitoring fee of $100.00 to The Florida Bar. All quarterly monitoring fees must be remitted no later than the end of each respective quarter in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation. 14
Respondent shall also pay restitution to Wanda Rodriguez (the former client) in the amount of $ 1,600.00 within 60 days of the entry of the order of the Supreme Court of Florida. Respondent must submit verifiable proof of payment of restitution to the Bar s headquarters office in Tallahassee within the time frame for payment of the court s order. Respondent shall provide verifiable proof of payment and receipt which shall consist of a copy (front and back) of the negotiated check or a copy of the check and certified return receipt. In the event the client cannot be located after a diligent search, respondent shall execute an affidavit of diligent search and provide same to The Florida Bar and shall pay the full amount of the restitution to the Clients Security Fund of The Florida Bar within 30 days of the date of the affidavit of diligent search. I have based my recommendation upon the testimony and evidence presented at the final hearing and my review of the applicable case law and the applicable Florida Standards For Imposing Lawyer Sanctions. I am satisfied that a 90-day suspension, followed by a 3-year probation with the above provisions and payment of The Florida Bar s costs in this matter is necessary to meet the Court s criteria for appropriate sanction: attorney discipline must protect the public from unethical conduct and have a deterrent effect while still being fair to respondents. The Florida Bar v. Pahules, 233 So.2d 130, 132 (Fla. 1972). The Florida Standards 15
for Imposing Lawyer Sanctions also support the imposition of a 90-day suspension. The applicable standards are as follows: 4.42 Suspension is appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. 6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding. Respondent s misconduct in this case certainly fits the description above. Respondent neglected her clients, failed to properly communicate and missed numerous hearings, leaving her clients completely unrepresented. Respondent also intentionally violated numerous court orders that were clearly prejudicial to the proper administration of justice. Again, a 90-day suspension is necessary to protect the public and the integrity of the legal process. V. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: I considered the following personal history and prior disciplinary record of respondent, to wit: A. Personal History of Respondent: 16
Age: 71 Date Admitted to the Bar: October 28, 1993 B. Aggravating Factors: 9.22 (a) prior disciplinary offenses; Prior Discipline: Respondent received public reprimand for misrepresentation by Supreme Court Order dated February 23, 1995. C. Mitigating Factors: 9.32 (c) personal or emotional problems [During the period in which this misconduct took place, respondent s husband became very ill and subsequently died.]; (l) remorse; (m) remoteness of prior offenses. VI. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED: I find that The Florida Bar has incurred reasonable costs in the matter and that same should be assessed against the respondent. Administrative Costs: $1,250.00 Court Reporter Appearance Fee $ 95.00 Investigative Costs $ 12.50 Bar Counsel Travel-Final Hearing $ 44.50 TOTAL $1,402.00 17
It is recommended that such costs be charged to respondent and that interest at the statutory rate shall accrue and that should such cost judgment not be satisfied within thirty days of said judgment becoming final, respondent shall be deemed delinquent and ineligible to practice law, pursuant to R. Regulating Fla. Bar 1-3.6, unless otherwise deferred by the Board of Governors of The Florida Bar. Dated this day of, 2009. WILLIAM L. THOMAS, Referee CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Amended Report of Referee has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-1927, and that copies were mailed by regular U.S. mail to the following: STAFF COUNSEL, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300; and ALAN ANTHONY PASCAL, Bar Counsel, The Florida Bar, Lakeview Plaza II, 1300 Concord Terrace, Suite 130, Sunrise, Florida 33323; and JANE MARIE LETWIN, Respondent, 5426 SW 25 th Avenue, Fort Lauderdale, Florida 33312 on this day of, 2009. WILLIAM L. THOMAS, REFEREE 18