IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Supreme Court Case No. SC06-1573 Complainant, v. The Florida Bar File No. 2006-51,508(17H) LARRY JAY SAFRON, Respondent. / RESPONDENT S INITIAL BRIEF KEVIN P. TYNAN, #710822 RICHARDSON & TYNAN, P.L.C. Attorneys for Respondent 8142 North University Drive Tamarac, FL 33321 954-721-7300
TABLE OF CONTENTS Page(s) TABLE OF CONTENTS............................................. i TABLE OF CASES AND CITATIONS................................. ii PRELIMINARY STATEMENT....................................... 1 STATEMENT OF CASE AND FACTS................................. 2 SUMMARY OF THE ARGUMENT.................................... 4 ARGUMENT...................................................... 5 I. AN ATTORNEY WHO HAS BEEN FOUND GUILTY OF FELONIOUS CONDUCT FOR THE PERSONAL USE AND POSSESSION OF A CONTROLLED SUBSTANCE SHOULD BE SUSPENDED FROM THE PRACTICE OF LAW FOR A NINETY OR A NINETY-ONE DAY PERIOD DEPENDING UPON THAT LAWYER S REHABILITATION................................ 5 A. The factual background................................. 5 B. The proposed sanction.................................. 8 CONCLUSION................................................... 14 CERTIFICATE OF SERVICE....................................... 15 CERTIFICATION AS TO FONT SIZE AND STYLE..................... 15 i
TABLE OF CASES AND CITATIONS Cases Page(s) 1. The Florida Bar v. Marc Cohen, 919 So. 2d 384 (Fla. 2006)......... 11 2. The Florida Bar v. Stanley Cohen, 583 So. 2d 313 (Fla. 1991)........ 9 3. The Florida Bar v. Jahn, 509 So. 2d 285 (Fla. 1987)................ 9 4. The Bar v. Kelly, 813 So. 2d 85 (Fla. 2002)....................... 8 5. The Bar v. Thomas, 698 So. 2d 530 (Fla. 1997).................... 9 6. The Bar v. West, 550 So. 2d 462 (Fla. 1989)................ 11,12,13 Standards 7. Fla. Standard for Imposing Lawyer Sanctions, Standard 1.1.......... 9 8. Fla. Standard for Imposing Lawyer Sanctions, Standard 9.22......... 5 9. Fla. Standard for Imposing Lawyer Sanctions, Standard 9.32....... 3,12 10. Fla. Standard for Imposing Lawyer Sanctions, Standard 10.0......... 5 11. Fla. Standard for Imposing Lawyer Sanctions, Standard 10.3..... 3,5,10 11,13,14 ii
PRELIMINARY STATEMENT The Florida Bar, Appellee, will be referred to as "the Bar" or "The Florida Bar. Larry Jay Safron, Appellant, will be referred to as "Respondent. The symbol "RR" will be used to designate the report of referee and the symbol "TT" will be used to designate the transcript of the final hearing held in this matter. Exhibits introduced by the parties will be designated as TFB Ex. or Resp. Ex.. - 1 -
STATEMENT OF CASE AND FACTS On June 27, 2006, the Respondent, Larry Jay Safron, entered a no contest plea to felony possession of two controlled substances. RR2. Adjudication was withheld and the Respondent was placed on eighteen months of probation with the conditions set forth in the disposition sheet, inclusive of treatment for drug addiction. RR2 As a result of the aforementioned conviction, on August 7, 2006, The Florida Bar filed a Notice of Determination or Judgment of Guilt. Pursuant to the provisions of R. Regulating Fla. Bar 3-7.2(e), the Respondent was automatically suspended from the practice of law. The effective date of the automatic felony suspension was September 21, 2006, and the Respondent has remained suspended since that date. The Honorable Janis Brustares Keyser was appointed to serve as Referee and was requested to make an expedited recommendation to the Supreme Court of Florida on what final sanction should be imposed by the Court. The final hearing was held on October 24, 2006. The only contested issue at the final hearing was which sanction would be appropriate for the facts of this case. As such the Respondent testified, as did two other witnesses on his behalf, all of whom discussed the issues of aggravation and mitigation. As a result of this uncontroverted testimony, the Referee found the - 2 -
following mitigating factors from the Florida Standards for Imposing Lawyer Sanctions (hereinafter Standard ): 1. Standard 9.32(a) absence of a prior disciplinary record; 1 2. Standard 9.32(b) absence of a dishonest or selfish motive; 3. Standard 9.32(j) interim rehabilitation [drug treatment program and FLA participation]; 2 4. Standard 9.32(k) imposition of other penalties [criminal sanction, inclusive of two months in jail awaiting resolution of the criminal case]; 5. Standard 9.32(l) remorse. (RR 3-4) The Referee also found Standard 9.22(1) as an aggravating factor based upon the Respondent s substantial experience in the practice of law. RR3. The Report of Referee was served on November 14, 2006, which Report recommends that the Respondent be suspended from the practice of law for eighteen (18) months and did not comment whether the recommended suspension should be nunc pro tunc the effective date of the Respondent s interim suspension. As the recommended sanction fails to follow The Florida Standards for Imposing Lawyer Sanctions, Standard 10.3, this appeal has been filed. 1 This finding is incorrect and the Respondent would readily concede that he received an admonishment for minor misconduct in 1995. See TT 35-36 wherein the Respondent testified concerning this admonishment. 2 Editorial note supplied for Standards 9.32(j) & (k). - 3 -
SUMMARY OF THE ARGUMENT Standard 10.3 of the Florida Standards for Imposing Lawyer Sanctions states that a lawyer who is found guilty of felonious conduct... involving the personal use and/or possession of a controlled substance... and who has sought assistance from Florida Lawyers Assistance, Inc. ( FLA ) should be suspended from the practice of law for ninety or ninety-one days depending upon the status of that lawyer s rehabilitation at the time of trial. The Referee in this case found that the Respondent (1) had plead to felony charges related to the personal possession of a controlled substance and (2) had sought assistance from FLA, and was actively participating in his recovery program through the auspices of FLA. Notwithstanding these findings, the Referee without comment or explanation ignored Standard 10.3 and instead recommended an eighteen month suspension. The parties may honestly disagree over how far along the Respondent is in his recovery and whether this is a ninety day suspension coupled with FLA probation or a ninety one day suspension requiring proof of rehabilitation. However, the Referee s recommendation of an eighteen months suspension, which is six times longer than that set forth in Standard 10.3, is not justified under the facts of this case or this Court s precedent. - 4 -
ARGUMENT I. AN ATTORNEY WHO HAS BEEN FOUND GUILTY OF FELONIOUS CONDUCT FOR THE PERSONAL USE AND POSSESSION OF A CONTROLLED SUBSTANCE SHOULD BE SUSPENDED FROM THE PRACTICE OF LAW FOR A NINETY OR A NINETY-ONE DAY PERIOD DEPENDING UPON THAT LAWYER S REHABILITATION. The Supreme Court of Florida adopted Standard 10.0 of the Florida Standards for Imposing Lawyer Sanctions and this Standard, labeled Standards for Imposing Lawyer Sanctions in Drug Cases, and Standard 10.3 specifically requires a Referee to impose either a ninety or ninety-one day suspension when a lawyer is found guilty of a felony involving the personal use and/or possession of a controlled substance if that lawyer has sought and obtained assistance from Florida Lawyers Assistance, Inc. (hereinafter FLA ). The Referee in this case failed to follow Standard 10.3 and therefore her recommended sanction of an eighteen month suspension should be reversed. A. The factual background. On July 20, 2003, the Respondent was arrested and charged with the possession of two controlled substances. The Probable Cause Affidavit, introduced by the Bar as TFB Ex. B, reveals that the drugs found in his home were in the nature of residue from prior use, but that the amount of heroin and cocaine residue that was found was sufficient to establish a felony. Ultimately, the Respondent was able to resolve the criminal case that was filed against him by way - 5 -
of a plea of no contest to both charges on June 27, 2006. See TFB Ex. A. Adjudication was withheld on both counts and the Respondent was sentenced to eighteen months of supervised probation, with the conditions of such probation being focused on substance abuse rehabilitation. To fully understand what brought the Respondent to be arrested and ultimately convicted of a felony, one must review the Respondent s personal background and medical history. The Respondent is 50 years old, divorced and has one adult child. RR21. He was admitted to the practice of law in August 1986 and enjoyed a successful practice until he was in a serious car accident 3 and later developed life threatening medical complications. RR4; TT28. These medical conditions included diagnoses for hepatitis C from a blood transfusion, reflex synthetic dystrophy from surgeries on his hands, vasculitus and a lupus condition caused by an immune reaction. During the three to four year period beginning in late 1999, the Respondent was taking an interferon cocktail, had constant serious infections causing hospitalization every three months or so. TT28-29. During this time frame the Respondent initially tried to continue practicing law, but his deteriorating health caused him to cut back on his practice and by 2002-2003 he was doing mostly pro bono work with maybe a handful of clients. TT29. 3 A van came over a median causing a head on collision, resulting in the Respondent being in a coma for ten days and receiving multiple skin grafts, plates to repair broken bones and several blood transfusions. TT28. - 6 -
As his practice of law was slowing down he became addicted to the pain medication that he was being prescribed to manage the serious pain he was in due to his various illnesses. TT30. In the beginning, he would use his prescribed medications too quickly and then borrow other pain medications from friends. TT30. During his testimony, the Respondent candidly admitted that when he ran out of his prescription medications and could not borrow any from a friend he crossed over into illegal drugs to self medicate and manage his pain. During the course of his testimony, the Respondent discussed his early attempts at recovery from addiction (TT31-32), but it was not until his arrest and later participation with the Florida Lawyers Assistance program did he begin a true recovery from his addiction. At the time of trial, the Respondent testified that he had been sober for almost five months. 4 TT25-26. The Respondent testified that he successfully attended a forty-five day residential drug treatment program and that he had been at a halfway house/out patient program for two months by the time this case was tried. TT24. This fact was confirmed by his AA sponsor, David Lipman. TT12 &24-25. The Respondent also testified concerning his daily attendance at AA/NA or FLA support group meetings, which attendance was confirmed not only by his sponsor, but by his employer, Maurice Graham, Esquire, who will personally drive him to 4 Since the trial was held on October 24, 2006, at the time this brief is written the Respondent will have been sober for seven months. - 7 -
his meetings when necessary. TT13 & 20. Lastly, the Respondent testified concerning his involvement with FLA, inclusive of the fact that he is under an FLA contract and that FLA has been coordinating his recovery. TT24. The Referee heard the testimony of the Respondent s AA sponsor, David Lipman, who shared that he has known the Respondent for approximately seven months and has assisted him in his recovery program. TT9-12. It was Mr. Lipman s testimony that he has almost daily contact with the Respondent and has seen a growth in his recovery and his attitude towards his recovery since he first met the Respondent. TT13. The Referee also heard the testimony of the Respondent s employer, Maurice Graham, Esquire. Mr. Graham testified that he is fully aware of the Respondent s current suspension from the practice of law, the reasons for such suspension and his current recovery programs. TT18-19. Further, Mr. Graham stated that he personally drove the Respondent to many of the Respondent s AA meetings or home to his half way house. TT20. B. The proposed sanction. This Court in The Florida Bar v. Kelly, 813 So.2d 85 (Fla. 2002), stated that in selecting an appropriate discipline certain fundamental issues must be addressed. They are: (1) Fairness to both the public and the accused; (2) sufficient harshness in the sanction to punish the violation and encourage reformation; and (3) the - 8 -
severity must be appropriate to function as deterrent to others who might be tempted to engage in similar misconduct. Also see The Standards for Imposing Lawyer Sanctions, Standard 1.1. In applying these standards to the case at hand it is evident that the recommended sanction is too harsh of a sanction under the circumstances. It is also important to note that this Court has consistently held that it has a broader discretion when reviewing a sanction recommendation because the responsibility to order an appropriate sanction ultimately rests with the Supreme Court. The Florida Bar v. Thomas, 698 So. 2d 530 (Fla. 1997). This discretion should be fully exercised when a Referee fails to follow the guidelines set by this Court in the Florida Standards for Imposing Lawyer Sanctions. Conviction of a felony does not automatically require disbarment as the Supreme Court continues to analyze each lawyer discipline case on their individual merits. The Florida Bar v. Jahn, 509 So. 2d 285 (Fla. 1987). Also see The Florida Bar v. Stanley Cohen, 583 So. 2d 313 (Fla. 1991) [Minor felony may not require disbarment]. In this case both sides argued for the imposition of a suspension, but differ on how long that suspension should be. The Referee concurred that a suspension is appropriate under the circumstances, but has recommended a suspension that (1) fails to follow the Standards and (2) fails to give any credit for the time already served under the interim felony suspension. - 9 -
As is explained at the outset of this brief, Standard 10.3 clearly sets forth the appropriate framework for the resolution of this case. Standard 10.3 states that a lawyer who is found guilty of felonious conduct... involving the personal use and/or possession of a controlled substance... and who has sought assistance from Florida Lawyers Assistance, Inc. ( FLA ) should be suspended from the practice of law for ninety or ninety-one days. The deciding factor in whether a ninety day suspension with automatic reinstatement of a ninety-one day suspension which would require proof or rehabilitation is resolved by determining the statutes of the accused lawyer s rehabilitation. In the case at hand, the Respondent testified that prior to his arrest he abused prescription drugs as a means of managing pain from a variety of serious medical conditions, some of which were caused by a car accident. He also admitted that when he could not secure prescription drugs he had used illegal drugs to medicate his pain. Since his arrest, the Respondent has remained clean and sober. He entered a residential drug treatment program approved by FLA. After successfully completing such program, the Respondent entered a half way house program and still participates in same. More importantly, by following FLA s treatment recommendations and by his execution of an FLA rehabilitation contract, this Respondent has clearly demonstrated that he has sought assistance from FLA and therefore Standard 10.3 applies in this instance - 10 -
and the only issue requiring resolution is the Court s view of the Respondent s current rehabilitation. 5 This case appears very similar to The Florida Bar v. Marc Cohen, 919 So. 2d 384 (Fla. 2006). In Cohen the lawyer was convicted, among other things, of felony possession of marijuana, driving under the influence causing injury to others and resisting arrest without violence. The Supreme Court reviewed applicable case law and Standard 10.3 and found that a ninety day suspension coupled with three years of FLA probation was warranted as the lawyer in Cohen had demonstrated that he was on the road to recovery because he sought assistance from FLA, began treatment and participated actively in his recovery program. Therefore, Cohen appears to present the appropriate road map for resolution of this case. The one and only case advanced by the Bar at trial for its suggestion of an eighteen month suspension, while somewhat factually similar to the case at hand, was resolved prior to the Supreme Count s adoption of the Standards and therefore is not dispositive of this case. See The Florida Bar v. West, 550 So. 2d 462 (Fla. 1989). Further, in West, there is no mention of any involvement with FLA, although there is a passing reference to completion of a drug treatment program 5 The Referee s comment on mitigation specifically acknowledges the Respondent has demonstrated interim rehabilitation and that finding could only logically be based upon the Respondent s FLA participation. - 11 -
and participation in alcohol counseling both of which appear to be the direct result of his criminal sentence. In the case at hand there is direct testimony concerning the Respondent s early attempts at rehabilitation and his current active involvement with AA/NA prior to his conviction and his relationship with FLA for the five months preceding the trial. A comparison must also be made between the mitigation present in this case and that found in West. The Referee in the case sub judice specifically found the following mitigation: 1. Standard 9.32(b) absence of a dishonest or selfish motive; 2. Standard 9.32(j) interim rehabilitation [drug treatment program and FLA participation]; 3. Standard 9.32(k) imposition of other penalties [criminal sanction, inclusive of two months in jail awaiting resolution of the criminal case]; 4. Standard 9.32(l) remorse. The Respondent would also contend that the following mitigation was proven by the uncontroverted testimony of the various witnesses: 1. Standard 9.32(e) full cooperation with the Bar; 2. Standard 9.32(g) otherwise good character and reputation; 3. Standard 9.32(h) physical or mental impairment [addiction to prescription drugs and serious debilitating medical conditions over several years that prevented the Respondent from practicing law on a full time basis]. - 12 -
The mitigation in West of cooperation with the Bar and some interim rehabilitation pales in comparison to that found in this case. Having determined that Standard 10.3 applies, the Court must reach a resolution on whether or not rehabilitation has been proven. It is the Respondent s position that he has clearly demonstrated his recovery efforts, his active participation in FLA, and his own personal desire to stay sober. This fact was corroborated by his AA sponsor who testified: Well, I can tell you he is clean and sober today, and he s been clean and sober since the day I met him. I have no reservations where that is concerned. What I can tell you is he works the program that he is supposed to work. He is doing the very best he can, and that changes from day to day. When I say the very best he can, it improves as more time goes by if he continues to work the program, and he s doing that to the best of his ability. The Referee, in her mitigation comments, clearly finds interim rehabilitation. RR3-4. The record below and the Referee s comments regarding rehabilitation should give this Court the confidence to confirm that the Respondent has demonstrated sufficient rehabilitation to meet the requirements of Standard 10.3. Accordingly, the Respondent respectfully contends that a ninety day suspension, coupled with the probationary requirements set forth in Standard 10.3 6 is the appropriate sanction for this case. 6 A three year period of probation under the auspices of FLA. - 13 -
CONCLUSION The Respondent pleaded no contest to felonious possession of two controlled substances for personal use. The Standards for Imposing Lawyer Sanctions in Drug Cases, and in particular Standard 10.3, provides the framework for the resolution of this type of personal use cases. In applying the facts of this case to Standard 10.3, it is evident that a ninety day suspension from the practice of law followed by three years of probation supervised by Florida Lawyers Assistance, Inc., is the appropriate sanction for this case. WHEREFORE the Respondent, Larry Jay Safron, respectfully requests (1) that the Referee s recommended sanction be rejected; (2) that the Court impose a suspension no greater than ninety (90) days, coupled with a three year Florida Lawyer Assistance, Inc., program probationary period (3) with said suspension to be nunc pro tunc the effective date of the Respondent s felony suspension and (4) grant any other relief the Court deems reasonable and just. Respectfully submitted, RICHARDSON & TYNAN, P.L.C. Attorneys for Respondent 8142 North University Drive Tamarac, FL 33321 954-721-7300 By: KEVIN P. TYNAN, ESQ. TFB No. 710822-14 -
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served via U.S. mail on this day of December, 2006 to Juan Carlos Arias, Bar Counsel, The Florida Bar, 5900 N. Andrews Avenue, Suite 900, Fort Lauderdale, FL 33309 and to Kenneth Marvin, Staff Counsel at 651 E. Jefferson Street, Tallahassee, FL 32399-2300. CERTIFICATE OF TYPE, SIZE AND STYLE and ANTI-VIRUS SCAN Undersigned counsel does hereby certify that this Brief is submitted in 14 point proportionately spaced Times New Roman font, and that the computer disk filed with this brief or the e-mail forwarded to the Court has been scanned and found to be free of viruses, by McAfee. KEVIN P. TYNAN - 15 -