IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant Supreme Court Case No. SC06-11 v. The Florida Bar File No. 2004-51,249(17F) ARTHUR NATHANIEL RAZOR 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 December 30, 2005. Thereafter, the undersigned was appointed to preside as referee in this proceeding by order of the Chief Judge of the Fifteenth Judicial Circuit. A final hearing in the case was held November 2 and continued December 13, 2006. 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 attorney Steven M. Busch and The Florida Bar was represented by attorneys Alan Anthony Pascal and Juan Carlos Arias.
II. FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT WITH WHICH RESPONDENT IS CHARGED: The original certified copies of the Final Hearing held November 2 and continued December 13, 2006 (hereinafter referred to as FH ) is annexed hereto as Attachment A and B. My findings of fact are as follows: 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. Walter Lebowitz is a disbarred Florida attorney. 3. Respondent became good friends with Walter Lebowitz and were more than just social acquaintances. 4. I find that respondent, due to his close friendship with Mr. Lebowitz, knew at the time immediately prior to the incident on March 1, 2004 that Walter Lebowitz was a lawyer who had been licensed to practice in Florida, that he had been suspended, and that he was no longer permitted to practice law in Florida. 5. I find that on or before March 1, 2004, respondent sub-letted a space in his executive suites to Mr. Lebowitz and that they had frequent and ongoing contact with regard to their personal and professional lives. 6. Mr. Lebowitz s then fiancé or girlfriend, Rosalyn Nash, who eventually became Mr. Lebowitz s wife, had a procedure done with her eyes with Doctor Wigdor on March 1, 2004. 2
7. As a consequence of the procedure, it appears Ms. Nash had some discoloration or bleeding of the eye. 8. On or about March 2, 2004, Walter Lebowitz sent a letter to Dr. Wigdor stating that Lebowitz had been retained by Roslyn Nash in connection with the claim against Dr. Wigdor. (A copy of the letter is attached hereto as The Florida Bar Exhibit A.) 9. Such letter was written on letterhead styled Law Offices of Lebowitz and Razor. 10. Further, the letter is signed by Lebowitz for the firm. 11. Being a disbarred Florida attorney, Lebowitz is barred from engaging in the practice of law in Florida. 12. I m not convinced that at the time of the drafting of the letter that respondent was aware that this letter was created. However, subsequent events convince me, by clear and convincing evidence, that respondent was aware of the letter and did nothing to recant it or to call its inappropriateness to Mr. Lebowitz s attention before Bar proceedings were initiated. 13. The retainer contract executed by the respondent and Ms. Nash had a redacted date. Whether the retainer contract was executed March 2, 2004 or retroactively, it supports the contention that respondent was colluding or in league with Mr. Lebowitz to allow him to practice law. 3
14. To make it even more offensive, Doctor Wigdor received a letter less than 24 hours after the medical procedure took place. I find it merely opportunistic to extort money from a doctor, a stranger to the legal profession. Whether Ms. Nash was or was not the victim of some negligence, it was way too soon to do anything to figure that out. 15. I find respondent and Mr. Lebowitz not to be credible at all and this court rejects respondent s defense that he did not know of the letter until The Florida Bar initiated the investigation. 16. I find respondent was given opportunities to try to clarify his version of the facts with The Florida Bar. However, in his correspondence to The Florida Bar, respondent never stated that he was unaware of the letter and that it was sent without his knowledge or consent. 17. I find that in his first letter to the bar dated May 14, 2004, respondent failed to deny any knowledge of the letter to Dr. Wigdor. Instead, respondent argued that the letter sent to Dr. Wigdor was not an attempt to extort money. Respondent specifically failed to mention that Mr. Lebowitz, who is not a licensed Florida attorney, was not authorized to send the letter. (A copy of the letter is attached hereto as The Florida Bar Exhibit B.) 18. I find that respondent s second letter to the bar dated June 2, 2004, further contradicts his argument that he did not know about the letter sent to Dr. Wigdor. 4
(A copy of the letter is attached hereto as The Florida Bar Exhibit C.) In fact, the respondent explained that the letter was drafted to avoid confusion and comply with the Bar rules. In that letter respondent even acknowledges that he agreed to collaborate on a limited basis with Mr. Lebowitz, who resigned his Florida Bar License in 1989 pending disciplinary action and was not a Florida licensed attorney on February 2002. Again, respondent failed to deny any knowledge of the letter sent to Dr. Wigdor. Instead, respondent actually acknowledged that the letter was crafted to comply with the bar rules and that he was collaborating with Mr. Lebowitz in this legal action. 19. I find that respondent first denied knowledge of the Dr. Wigdor letter at the Live Hearing conducted August 10, 2005, after being notified by the Bar of the alleged rules violated in a notice dated June 16, 2005. In other words, only after being confronted with the alleged violations, did respondent deny any knowledge of the letter sent to Dr. Wigdor in an untimely attempt to distance himself from the misconduct. 20. I find that respondent created an environment that permitted Mr. Lebowitz to use his name to try to shake down someone for money. 21. I find that respondent failed to make reasonable efforts to ensure that Mr. Lebowitz s conduct was compatible with his obligations as the supervising lawyer. 5
22. I further find that respondent knew of Mr. Lebowitz letter prior to the initiation of the Bar investigation and that he failed to take reasonable remedial action to mitigate Mr. Lebowitz conduct. 23. I find respondent deceptive and not forthcoming in his attempt to cover for Mr. Lebowitz. Respondent was covering for him in the paper investigation and he was covering for him at the Grievance Committee hearing. Then, only after Mr. Lebowitz had resolved his unauthorized practice of law allegation by bettering his position with the Bar, did Mr. Lebowitz try to extricate his friend from trouble by taking all the fault. 24. I find Mr. Lebowitz s and respondent s frankness at the Final Hearing disingenuous. In their attempt to cover for each other, you see the closeness between the two men. 25. I further find that the respondent was disciplined in case SC02-1750 for allowing a nonlawyer to act as his agent and failing to adequately supervise him. III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY: 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 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, 6
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.]; 4-5.3(b) [With respect to a nonlawyer employed or retained by or associated with a lawyer... a partner in a lawyer firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person s conduct is compatible with the professional obligations of the lawyer and a lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (3) the lawyer is a partner in the law firm in which the person is employed or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.]; 4-5.5(b) [A lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unlicensed practice of law.]; 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.] 7
IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that respondent be suspended for a period of 18 months. Further, respondent shall pay The Florida Bar s costs in this matter. In arriving at the foregoing disciplinary recommendation, consideration was given to various factors which are set forth below: A. Respondent has a prior disciplinary offense and submitted false evidence, false statements, or other deceptive practices during the disciplinary process. Respondent also has substantial experience in the practice of law. Therefore, I find these aggravating factors pursuant to Florida Standards for Imposing Lawyer Sanctions 9.22(a), (f), and (i). B. Standard 7.0 of the Florida Standards for Imposing Lawyer Sanctions, best fits the misconduct described. Standard 7.2 states that 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. C. Respondent s conduct in allowing his collaborator (a suspended attorney) to practice law in an attempt to extort money; his ratification of the misconduct by failing to take immediate remedial action; his attempts to cover for the suspended attorney by defending the letter during the Bar investigation; and his inconsistent defense (lack of knowledge) at the live and final hearings, warrants an 8
18-month suspension with proof of successful completion with passing grade of the professional responsibility portion of The Florida Bar Examination before reinstatement, a 2-year period of probation upon reinstatement, and payment of The Florida Bar s costs. Furthermore, by collaborating with a nonlawyer and inadequately supervising the nonlawyer, respondent engaged in conduct similar to the unprofessional conduct for which he received discipline in case SC02-1750. (A copy of the letter is attached hereto as The Florida Bar Exhibit G.) D. The Supreme Court held in The Florida Bar v. Flowers, 672 So.2d 526 (Fla. 1996) that an attorney who ratified the misconduct of nonlawyer associated with the lawyer, engaged in conduct prejudicial to the administration of justice, failed to respond to Bar s inquiry, and failed to provide competent representation warranted a 91-day suspension from the practice of law. (This case law is annexed hereto as Attachment C.) E. I am satisfied that the imposition of an 18-month suspension with proof of successful completion with passing grade of the professional responsibility portion of The Florida Bar Examination before reinstatement, a 2- year period of probation upon reinstatement, 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: 56 Date Admitted to The Florida Bar: April 9, 1978 Prior to disciplinary convictions and disciplinary measured imposed therein: Suspension and probation on November 24, 2004. 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 Reporting Costs $ 339.50 2. Bar Counsel Travel Costs $ 29.86 B. Referee Level Costs: 1. Court Reporting Costs $ 1,353.10 2. Bar Counsel Travel Costs $ 19.12 C. Administrative: $ 1,250.00 D. Miscellaneous Costs: 1. Investigators Expenses $ 843.42 2. Witness Fees $ 10
3. Copy Costs $ 4. Auditor Costs $ TOTAL ITEMIZED COSTS: $ 3,835.00 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, 2007. JEFFREY COLBATH, 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 STEVEN M. BUSCH, ESQ., Respondent s Counsel, 3900 Hollywood Blvd., Suite 302, Hollywood, FL 33021, on this day of, 2007. JEFFREY COLBATH, REFEREE 11