IN THE SUPREME COURT OF FLORIDA (Before A Referee) THE FLORIDA BAR, Supreme Court Case No. SC06-1740 Complainant, v. The Florida Bar File No. 2005-50,593(15F) DAVID GEORGE ZANARDI Respondent. / REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: The Florida Bar s formal Complaint in this cause was filed on August 31, 2006. Thereafter, the undersigned was appointed to preside as referee in this proceeding by order of the Chief Judge of the Fifteenth Judic ial Circuit. Final hearing in the case was held on March 19, and 23, 2007. Respondent was permitted to appear by telephone. At the March 19 hearing, he did not have someone present who was authorized to place him under oath to testify at his location, so the case was continued for that purpose to March 23, 2007. 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 initially represented by Stuart Russell Reed, Esq., and represented himself at the final hearing. The Florida Bar was represented by Michael David Soifer, Bar Counsel.
II. FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT WITH WHICH RESPONDENT IS CHARGED: 1. Respondent is, and at all times hereinafter mentioned was, a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. 2. A default judgment pursuant to FL R.C.P. 1.380(b)(2)(C) was entered against respondent as to the rule violations as set forth in the Complaint after a hearing conducted on February 13, 2007, pursuant to an Order to Show Cause (Civil Contempt) and The Florida Bar s Notice of Respondent s Non-compliance with the Order of the Referee dated January 10, 2007, and Request for Sanctions. Respondent failed to comply with the referee s order compelling answers to interrogatories and request for production propounded by the bar. It was determined at the hearing that respondent s violation of the discovery order was willful and intentional and that he had engaged in a pattern of intentional conduct in this case which was evasive, designed to cause delay and frustrate the purpose of these proceedings. 3. As to Count I of the complaint: a. On or about May 28, 2002, respondent obtained a mortgage loan from Champion Mortgage, A Division of Key Bank, in the amount of approximately $20,500.00, secured by the residence he owned with his then wife, Rachel F. Zanardi (Rachel), located at 124 Honeysuckle Lane, Front Royal, 2
Virginia. b. Respondent obtained the loan without Rachel s knowledge or permission through the use of a power of attorney containing Rachel s falsified signature. A true and correct copy of the sham power of attorney was attached as Exhibit A to the complaint. c. The sham power of attorney contained a false notarization purporting to have been notarized by Michelle Melara, an employee of a law firm where the respondent worked. A true and correct copy of the affidavit of Michelle Melara was attached as Exhibit B to the complaint. d. Respondent also created a sham Commonwealth of Virginia Report of Divorce, falsifying the signatures thereon, and a sham divorce decree dated March 3, 2004, containing a falsified signature of Rachel. These documents were created for the purpose of falsely representing to a third party or parties that respondent was divorced from Rachel. Respondent and Rachel were legally divorced on October 13, 2004. True and correct copies of the sham Commonwealth of Virginia Report of Divorce and the sham divorce decree dated March 3, 2004 were attached as Exhibit C to the complaint. e. Respondent s conduct involved dishonesty, fraud, deceit and misrepresentation, which was knowing, purposeful and intentional. 4. As to Count II of the complaint: a. Respondent individually and doing business as Atticus Law 3
LLC, engaged in activities associated with the practice of law in the Commonwealth of Virginia, and respondent was not a member of the Virginia Bar or otherwise licensed to engage in the practice of law, either individually or doing business as Atticus Law LLC. An investigation was initiated by the Virginia State Bar s Standing Committee on Unauthorized Practice of Law, and respondent signed a letter whereby he agreed to cease his activities and refrain from any future unauthorized practice of law in Virginia. A true and correct copy of the aforesaid letter, dated January 6, 2005, and containing respondent s notarized signature dated January 10, 2005, was attached as Exhibit D to the complaint. b. From in or about 1997 to January 2003, respondent was an employee of the law firm Baise & Miller, P.C., located in Washington D.C. Respondent became employed as an associate with the law firm after his admission to The Florida Bar in 1998. Respondent was made aware that in order to continue his employment as an associate, he was required to comply with D.C. App. R. 49 by making application to the District of Columbia Bar. Respondent continued working for the law firm and made false representations to Baise & Miller, P.C., concerning the status of his application for membership of the District of Columbia Bar. In the March 23, 2007 hearing the Respondent admitted that he does not know if he has any application pending in Washington, D.C. and may have made initial application, albeit incomplete in 1987. On or about January 9, 2003, respondent was specifically requested by Baise & Miller, P.C., to produce 4
documentation to substantiate the truthfulness of the representations he had made concerning the status of his application to the District of Columbia Bar. Respondent terminated his employment with Baise & Miller, P.C., the next day without supplying the requested documentation. c. Respondent s conduct involved dishonesty, fraud, deceit and misrepresentation, which was knowing, purposeful and intentional. 5. As to Count III of the complaint: On or about October 15, 2004, respondent entered into an agreement to perform legal services for Internal Hydro International, Inc. a Florida Corporation. Pursuant to the agreement, payments of respondent s retainer fee, in the form of shares of the company s restricted common stock, were paid to Francois Bitz, 1640 Pleasant Hill Road, Baden, Pennsylvania, 15005; Greg Troyanowski, 3175 Northwest 72 Avenue, Margate, Florida 33063; and Lynette Zalis (present wife and victim of the falsified divorce documents), 1220 Weatherstone Court, Reston, Virginia 20191, whom are nonlawyers. Respondent states these payments were to avoid any conflict of interest with legal work for the corporation and the corporation profits or value. Respondent failed to see his flawed logic upon questioning by the Court. A true and correct copy of the retainer agreement was attached as Exhibit E to the complaint. 5
III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY: By the conduct set forth above, along with the Respondent s continued inability to recognize the seriousness of his actions and follow the rules of Court, respondent violated R. Regulating Fla. Bar: As to Count I: 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(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation ]. As to Count II: 3-4.2 [Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline]; 4-5.5(a) [A lawyer shall not practice law in a jurisdiction other than the lawyer s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer s home state or assist another in doing so]; 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(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation ]. As to Count III: 3-4.2 [Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline]; 4-5.4(a) 6
[A lawyer or law firm shall not share legal fees with a nonlawyer...]; and 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.]. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: Before making my recommendation as to the disciplinary measures to be applied, I considered all of the evidence and testimony offered in the case and other documents filed in the matter which are included as part of my filings with the Supreme Court of Florida. I recommend that respondent be disbarred. Further, respondent shall pay The Florida Bar s costs in this matter. In arriving at the foregoing disciplinary recommendation, consideration was given to the factors set forth below: A. Aggravating Factors pursuant to the Florida Standards for Imposing Lawyer Sanctions set forth in Standard 9.2: 1. 9.22(b) Dishonest or selfish motive. 2. 9.22(c) Pattern of misconduct. 3. 9.22(d) Multiple offenses. 4. 9.22(e) Bad faith obstruction of the disciplinary process. B. In addition to the matter of aggravation listed in Standard 9.2, I also considered mitigating factors set forth in Standard 9.3: 1. 9.32(a) Absence of prior discipline. 7
Respondent testified that he repaid Rachel Zanardi the amount of the mortgage loan more than 4 years after he wrongfully obtained the funds, and after the bar complaint proceedings were brought. I do not find this to be a timely good faith effort to make restitution so as to be a mitigating factor. The Florida Bar v. Nunn, 596 So. 2d 1053 (Fla. 1992). C. The Florida Standards for Imposing Lawyer Sanctions specifically speak to the duties owed to the legal system that were violated by the respondent. Section 5.1 of the Florida Standards For Imposing Lawyer Sanctions relates to the failure of an attorney to maintain personal integrity. I find that Standard 5.11(f) is applicable as it provides for disbarment when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer s fitness to practice. Additionally, Standard 7.0 relates to vio lations of a lawyer s other duties owed as a professional. I find that Standard 7.1 is also applicable as it provides for disbarment when a lawyer 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 serious or potentially serious injury to a client, the public, or the legal system. Here respondent caused injury and potential injury to the public and the legal system by creating sham legal documents with false signatures to obtain the funds from the mortgage company and misrepresent his marital status with the intent to benefit 8
himself. The injury and potential injury to clients, the public, and the legal system is also evident by his unlicensed practice of law in Virginia. D. Existing case law also supports disbarment as the appropriate sanction for respondent s multiple and serious disciplinary offenses. The Florida Bar v. Cramer, 678 So.2d 1278 (Fla. 1996), [disbarment for perpetrating a fraud on a financial institution where the attorney used another person s name on an application for financing to purchase office equipment]; The Florida Bar v. Forbes, 596 So.2d 1051 (Fla. 1992), [disbarment for making a materially false statement in documents submitted to a bank to obtain a loan resulting in a felony conviction]; The Florida Bar v. Spann, 682 So2d 1070 (Fla. 1996), [disbarment for multiple and serious disciplinary offenses including the authorization of a forged signature on a release form to be signed by a client followed by notarization of the signature]; The Florida Bar v. Gold, 203 So.2d 324 (Fla. 1967), [disbarment for forging names to a satisfaction of mortgage, witnessing and causing another to witness the forgery and recording it.]; The Florida Bar v. Winter 549 So.2d 188 (Fla. 1989), [permanent disbarment for engaging in numerous instances of unauthorized practice of law after disciplinary resignation]. E. I am satisfied that disbarment and payment of The Florida Bar s costs is necessary to meet the Court s criteria for appropriate sanctions: attorney discipline must protect the public from unethical conduct and have a deterrent 9
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 recommendation, I considered the following personal history and prior disciplinary record of respondent, to wit: Age: 36 Date Admitted to The Florida Bar: April 27, 1998 No Prior disciplinary history. 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, as follows: A. Grievance Committee Level Costs: 1. Court Reporter Costs $ 786.35 2. Bar Counsel Travel Costs $ - 0 - B. Referee Level Costs: 1. Court Reporter Costs $ 155.00 2. Bar Counsel Travel Costs $ 21.61 C. Administrative Costs $1,250.00 D. Miscellaneous Costs: 1. Investigator Costs $ 280.50 2. Witness Fees $ - 0-3. Copy Costs $ 61.95 4. Telephone Charges $ - 0-5. Accurint $ 21.75 6. Auditor Costs $ - 0-10
TOTAL ITEMIZED COSTS: $ 2,577.16 It is apparent that other costs have or may be incurred. 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 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, 2007. Honorable James L. Martz, Referee South County Courthouse 200 West Atlantic Avenue, #211 Delray Beach, Florida 33444 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; MICHAEL DAVID SOIFER, Bar Counsel, The Florida Bar, 5900 North Andrews Avenue, Suite 900, Fort Lauderdale, Florida 33309-2366; and DAVID GEORGE ZANARDI, Respondent, 19314 Heather Creek, San Antonio, Texas 78258-3815, on this day of, 2007. Honorable James L. Martz, Referee 11
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