IN THE SUPREME COURT OF FLORIDA (Before A Referee) THE FLORIDA BAR, Complainant, Supreme Court Case No. SC08-1445 v. The Florida Bar File No. 2008-51,674(15D)FFC JAMES HARUTUN BATMASIAN, Respondent. / REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: The Florida Bar filed its Notice of Judgment of Guilt with the Supreme Court of Florida on or about July 31, 2008. Thereafter, the undersigned was appointed to preside as referee in this proceeding by order of the Chief Judge of the Seventeenth Judicial Circuit. The parties have presented to me a Conditional Guilty Plea for Consent Judgment, which has been approved by The Florida Bar Board of Governors designated reviewer. After due deliberation, I have determined to recommend that respondent s Conditional Guilty Plea for Consent Judgment be approved, for the reasons set forth herein. 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 was represented by Jeff M. Brown, Esquire and The Florida Bar was represented by Michael David Soifer, Esquire. II. FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT WITH WHICH RESPONDENT IS CHARGED: 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: 1. On April 17, 2008, (in the case filed as United States of America v. James Batmasian, in the United States District Court, Southern District of Florida, Case No. 08-60089-CR-Marra), respondent pled guilty to one count of willful failure to collect or pay over tax (a felony), in violation of Title 26, United States Code, Section 7202, pursuant to a plea agreement signed on April 3, 2008. 2. On July 11, 2008, U.S. District Judge Kenneth A. Marra sentenced respondent as follows: 8 months imprisonment, followed by two years of supervised release (under standard and special conditions), and criminal monetary penalties of $30,000.00. III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY: My recommendation as to guilt is as follows:
Based on the foregoing, respondent violated Rules Regulating The Florida 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.]; 3-4.3 [The commission by a lawyer of any 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.]; 3-4.4 [In addition, whether the alleged misconduct constitutes a felony or misdemeanor The Florida Bar may initiate disciplinary action regardless of whether the respondent has been tried, acquitted, or convicted in a court for the alleged criminal offense.]; and 4-8.4(b) [A lawyer shall not commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects.]. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that respondent receive a 3 year suspension nunc pro tunc to the effective date of the felony suspension, August 30, 2008, and be ordered to pay the costs of this matter. Respondent shall not apply for reinstatement until the term of suspension is completed or until after he has completed his supervised release and has had his civil rights restored, whichever occurs later.
I have based my recommendation upon the plea agreement between the parties, and upon my review of the applicable case law and the applicable Florida Standards For Imposing Lawyer Sanctions. I am satisfied that a 3 year suspension 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 for Imposing Lawyer Sanctions also support the imposition of a public reprimand. The applicable standards are as follows: 5.0 Failure to Maintain Personal Integrity 5.12 Suspension is appropriate when a lawyer knowingly engages in criminal conduct which is not included within Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice. 7.0 Violations of Other Duties Owed as a Professional 7.2 Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. 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: Age: 61 Date Admitted to the Bar: November 4, 1974 B. Aggravating Factors: None Prior Discipline: None C. Mitigating Factors: 9.32(a): Absence of a prior disciplinary record; 9.32(e): Cooperative attitude toward proceedings; 9.32(k): Imposition of other penalties or sanctions; 9.32(l) - remorse. In addition, respondent established a nonprofit organization in his community to work with at-risk and disadvantaged youth and has repaid all sums owed to the federal government. VI. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED: A. Referee Level Costs: 1. Court Reporter Costs $ 160.05 2. Bar Counsel Travel Costs $ - 0 - B. Administrative Fee $ 1,250.00 C. Miscellaneous Costs: 1. Investigator Costs $ 47.78 2. Witness Fees $ - 0-3. Copy Charges $ - 0 -
TOTAL ITEMIZED COSTS: $ 1,457.83 I find that The Florida Bar has incurred reasonable costs in the matter and that same should be assessed against the respondent. 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 11th day of February 2009. ALS/s Andrew L. Siegel, Referee CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing 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 mail to the following: Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300; Michael David Soifer, Bar Counsel, The Florida Bar, Lake Shore Plaza II, 1300 Concord Terrace, #130, Sunrise, Florida 33323; and to Jeff Brown, counsel for respondent, 750 South Dixie Highway, Boca Raton, Florida 33432, on this day of, 2009. Andrew L. Siegel, Referee