IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Supreme Court Case No. SC09-1317 Complainant, The Florida Bar File v. No. 2009-50,577(17J) TASHI IANA RICHARDS, Respondent. / REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: The Florida Bar filed its complaint in this cause with the Supreme Court of Florida on or about July 22, 2009. Thereafter, the undersigned was appointed to preside as referee in this proceeding by order of the Chief Judge of the Fifteenth Judicial Circuit. A Default Order was entered August 25, 2009, and a final hearing in the case was held October 23, 2009. 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 failed to appear despite receiving appropriate notice of all proceedings at her official bar address and The Florida Bar was represented by Juan Carlos Arias.
II. FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT WITH WHICH RESPONDENT IS CHARGED: My findings of fact are as follows: AS TO ALL COUNTS 1. Respondent is, and at all times material to this action was, a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. 2. On June 18, 2009, The Florida Bar filed a Petition for Emergency Suspension against respondent and this petition was approved by the Florida Supreme Court on June 22, 2009. COUNT I 3. In November 2008, The Florida Bar received a notice from Bank of America advising that the respondent s trust account had a check in the amount of $13,000.00 presented against insufficient funds on or about October 27, 2008. 4. This caused an overdraft on the account in the amount of ($12,999.99). 5. As a result of receiving the overdraft notice from the bank, The Florida Bar requested the bar auditor to perform an audit of the trust account. 6. The Florida Bar subpoenaed records from respondent and from the bank in order to perform the compliance audit. 2
7. Since respondent failed to respond to the subpoena, the bar auditor performed the audit based on the records received from Bank of America. A copy of the compliance audit with exhibits is attached hereto as Exhibit A. 8. The audit concluded that there were shortages in the trust account ranging from -$4,605 in March 2008 to -$50,686.27 in January 2009. 9. The shortages occurred due to respondent s use of client funds for purposes other than intended by the client in violation of the Rules Regulating The Florida Bar. 10. The audit also revealed that as of October 31, 2008, respondent s trust account balance was $.01, which clearly demonstrates that respondent failed to hold in trust the $13,000 received from client Isabel Sierra. 11. Respondent failed to deliver such held client funds on demand and therefore converted such funds, in violation of the Rules Regulating The Florida Bar. 12. The audit further concluded that minimum trust account records were not maintained, in violation of Rules Regulating Trust Accounts. COUNT II 13. The Florida Bar incorporates paragraphs 1 through 12 as if fully rewritten herein. 3
14. On December 3, 2008; December 29, 2008; and January 15, 2009, The Florida Bar sent respondent letters requesting her response to the trust account insufficient funds matter. 15. Respondent failed to respond. 16. On January 20, 2009, bar counsel called respondent to discuss her failure to respond. Respondent requested an additional 15 days to respond. 17. Respondent failed to respond. 18. On or about February 25, 2009, The Florida Bar served respondent with a grievance committee subpoena for her trust account records. 19. Respondent failed to respond to the subpoena. 20. Respondent also failed to respond to the complaint filed with the Supreme Court of Florida and failed to participate in the disciplinary process. III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY: COUNT I 21. By the conduct set forth above, 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.]; 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 4
or not the act is a felony or misdemeanor, may constitute 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.]; 4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that it shall not be professional misconduct for a lawyer for a criminal law enforcement agency or regulatory agency to advise others about or to supervise another in an undercover investigation, unless prohibited by law or rule, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency or regulatory agency to participate in an undercover investigation, unless prohibited by law or rule.]; 5-1.2(b)(2)[The following are the minimum trust accounting records that shall be maintained: (2) Original or duplicate deposit slips and, in the case of currency or coin, an additional cash receipts book, clearly identifying: (A) the date and source of all trust funds received; and (B) the client or matter for which the funds were received.]; 5-1.2(b)(3) [The following are the minimum trust accounting records that shall be maintained: (3) Original canceled checks, all of which must be numbered consecutively, or, if the financial institution wherein the trust account is maintained does not return the original checks, copies that include all endorsements, as provided by the financial institution.]; 5-1.2(b)(4) [The following 5
are the minimum trust accounting records that shall be maintained: (4) Other documentary support for all disbursements and transfers from the trust account.]; 5-1.2(b)(5) [The following are the minimum trust accounting records that shall be maintained: (5) A separate cash receipts and disbursements journal, including columns for receipts, disbursements, transfers, and the account balance, and containing at least: (A) the identification of the client or matter for which the funds were received, disbursed, or transferred; (B) the date on which all trust funds were received, disbursed, or transferred; (C) the check number for all disbursements; and (D) the reason for which all trust funds were received, disbursed, or transferred.]; 5-1.2(b)(6) [The following are the minimum trust accounting records that shall be maintained: (6) A separate file or ledger with an individual card or page for each client or matter, showing all individual receipts, disbursements, or transfers and any unexpended balance, and containing: (A) the identification of the client or matter for which trust funds were received, disbursed, or transferred; (B) the date on which all trust funds were received, disbursed, or transferred; (C) the check number for all disbursements; and (D) the reason for which all trust funds were received, disbursed, or transferred.]; 5-1.2(c)(1)(A) [The minimum trust accounting procedures that shall be followed by all members of The Florida Bar (when a choice of laws analysis indicates that the laws of Florida apply) who receive or disburse trust money or property are as follows: (1) The lawyer shall 6
cause to be made monthly: (A) reconciliations of all trust bank or savings and loan association accounts, disclosing the balance per bank, deposits in transit, outstanding checks identified by date and check number, and any other items necessary to reconcile the balance per bank with the balance per the checkbook and the cash receipts and disbursements journal; ]; and 5-1.2(c)(1)(B) [The minimum trust accounting procedures that shall be followed by all members of The Florida Bar (when a choice of laws analysis indicates that the laws of Florida apply) who receive or disburse trust money or property are as follows: (1) The lawyer shall cause to be made monthly: (B) a comparison between the total of the reconciled balances of all trust accounts and the total of the trust ledger cards or pages, together with specific descriptions of any differences between the 2 totals and reasons therefore.]. COUNT II 22. By the conduct set forth above, respondent violated R. Regulating Fla. Bar 4-8.4(g)(1)(2)(3) [A lawyer shall not fail to respond, in writing, to any official inquiry by bar counsel or a disciplinary agency, as defined elsewhere in these rules, when bar counsel or the agency is conducting an investigation into the lawyer's conduct. A written response shall be made: (1) within 15 days of the date of the initial written investigative inquiry by bar counsel, grievance committee, or board of governors; (2) within 10 days of the date of any follow-up written investigative 7
inquiries by bar counsel, grievance committee, or board of governors; (3) within the time stated in any subpoena issued under these Rules Regulating The Florida Bar (without additional time allowed for mailing).]. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that respondent be disbarred. In arriving at the foregoing disciplinary recommendation, consideration was given to various factors which are set forth below: A. Respondent had a dishonest or selfish motive, engaged in a pattern of misconduct with multiple offenses, exhibited bad faith obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the disciplinary agency and demonstrated indifference to making restitution. Therefore, I find these aggravating factors pursuant to Florida Standards for Imposing Lawyer Sanctions 9.22 (b), (c), (d), (e), and (j). B. Standards 4.4, 4.6, and 7.0 of the Florida Standards for Imposing Lawyer Sanctions, best fit the misconduct described. Standard 4.41 states that disbarment is appropriate when a lawyer abandons the practice and causes injury or potential serious injury to a client. Standard 4.61 states that disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client. Finally, standard 7.1 states that disbarment is appropriate when a lawyer 8
intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes injury or potential injury to a client, the public, or the legal system. C. Respondent gave her client a dishonored check from her trust account. Furthermore, respondent s lack of participation in the investigation by not responding to Bar inquiries, her failure to respond to The Florida Bar s complaint, her failure to respond to The Florida Bar s Motion for Judgment on Default, coupled with her failure to appear at the Final Hearing warrants disbarment. The Supreme Court held in The Florida Bar v. Brownstein that disbarment was the appropriate discipline for an attorney who misappropriates trust funds. The Court also found in The Florida Bar v. Valentine-Miller that an attorney who abandoned her practice and intentionally misappropriated client funds warranted disbarment. (This case law is annexed hereto as Exhibit B). D. I am satisfied that the imposition of disbarment is necessary to meet the Court s criteria for appropriate sanctions: 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). V. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: After finding respondent guilty but prior to making my disciplinary 9
recommendation, I considered the following personal history and prior disciplinary record of respondent, to wit: Age: 31 Date Admitted to The Florida Bar: September 20, 2004 Prior disciplinary convictions and disciplinary measures imposed therein: None. VI. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED: I find the following costs were reasonably incurred by The Florida Bar: A. Grievance Committee Level Costs: 1. Court Reporting Costs $ -0-2. Bar Counsel Travel Costs $ -0- B. Referee Level Costs: 1. Court Reporting Costs $ 75.00 2. Bar Counsel Travel Costs $ 64.15 C. Administrative: $ 1,250.00 D. Miscellaneous Costs: 1. Investigators Expenses $ 248.60 2. Witness Fees $ -0-3. Copy Costs $ -0-4. Auditor Costs $ 765.00 TOTAL ITEMIZED COSTS: $ 2,402.75 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 30 days of said judgment becoming final, respondent shall be deemed 10
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. GLENN D. KELLEY, 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 E. Jefferson Street, Tallahassee, Florida 32399-2300; and JUAN C. ARIAS, Bar Counsel, The Florida Bar, 5900 North Andrews Avenue, Suite 900, Fort Lauderdale, Florida 33309-2366; and to TASHI IANA RICHARDS, Respondent, Richards & Associates, P.A., 7920 N.W. 6 th Street, Apt. 205, Pembroke Pines, Florida 33024-5186, on this day of, 2009. GLENN D. KELLEY, REFEREE G:\Referee\Richards577\Pleadings\Richards577(Report of Referee).doc 11