IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, v. Complainant, CASE NO.: SC10-862 TFB NO.: 2010-10,855(6A)OSC KEVIN J. HUBBART, Respondent. / REPORT OF REFEREE I. Summary of Proceedings: Pursuant to the undersigned being duly appointed as referee by Administrative Order A-2010-055, to conduct disciplinary proceedings in this matter according to the Rules Regulating The Florida Bar, a final hearing was held in this matter on October 8, 2010. Any pleadings, notices, motions, orders, transcripts, and exhibits are forwarded to The Supreme Court of Florida with this report and constitute the record in this case. The following attorneys appeared as counsel for the parties: For The Florida Bar: Karen B. Lopez For The Respondent: Pro Se II. Findings of Fact as to Each Item of Misconduct With Which the Respondent Is Charged: The Respondent was suspended from the practice of law by Order of the Florida Supreme Court dated June 23, 2009. The 1
Respondent s suspension became effective on July 23, 2009. As of the date of the final hearing in this matter on October 8, 2010, Respondent had not been reinstated to the practice of law. On May 3, 2010, the Florida Bar filed a Petition for Order to Show Cause and Contempt, requesting that the Florida Supreme Court enter an order directing Respondent to show cause why he should not be held in contempt and disbarred for practicing law while under an Order of Suspension. On May 26, 2010, Respondent filed a Response, and on June 3, 2010, the Florida Bar filed its Reply. By Order dated July 9, 2010, the Honorable Gregory P. Holder, Circuit Judge, was appointed as Referee in this proceeding. A final evidentiary hearing was properly scheduled and then held on October 8, 2010. After considering all the pleadings, papers, and evidence before me, I find as follows: By Order dated June 23, 2009, Respondent was suspended from the practice of law by Order of the Florida Supreme Court dated June 23, 2009. Respondent s suspension became effective July 23, 2009. As of this date, Respondent has not been reinstated to the practice of law. On January 19, 2010, Respondent sent an email to a former client, David McComas, to which he attached a commercial real estate contract. Within the email (attached Trial Exhibit 2), Respondent stated: Attached is the contract I revised and tried to get an office building for Mike a few months ago. The 2
contract was executed by Respondent as President of TempCo Properties, Inc. on September 3, 2009, while Respondent was suspended from the practice of law. The contract (attached Trial Exhibit 3) states that TempCo Properties, Inc., is an entity created to enter contracts for the benefit of clients of Commercial Equity Group, Inc. Commercial Equity Group, Inc. (CEGI) is an active Florida corporation whose Registered Agent is listed as Kevin J. Hubbart, Esq. (attached Trial Exhibit 1). Respondent is also listed as a Director of CEGI. The contract (Trial Exhibit 3) signed by Respondent on September 3, 2009, states in paragraph 20 that Seller acknowledges that Kevin J. Hubbart, Esq. ( Hubbart ) is an attorney that has a business relationship with Buyer and CEGI. The contract also states that the Buyer is represented by General Counsel and lists the address of the General Counsel as Respondent s official Florida Bar address: 2471 N. McMullen Booth Rd., Suite #316, Clearwater, FL 33759. III. Recommendations as to Whether or Not the Respondent Should Be Found Guilty: As to the Petition, I recommend that the Respondent be found in contempt of court for the direct violations of the Florida Supreme Court Order of Suspension effective July 23, 2009. I further recommend Respondent be found, once again, guilty of engaging in the unauthorized practice of law by preparing a contract for TempCo Properties, Inc., a corporation of which he was the sole officer and 3
director, while suspended from engaging in the practice of law. Further, this contract, both prepared and then forwarded by the Respondent, was a legal instrument affecting important legal rights of the corporation. The Respondent also engaged in the unauthorized practice of law by representing his corporation and its client in the attempted purchase of commercial real property while he was suspended from the practice of law. Respondent further engaged in the unauthorized practice of law by providing the revised contract to David McComas for use in the proposed real estate transaction. In providing the contract to Mr. McComas, Respondent prepared a legal instrument for another. Respondent acknowledged in his January 19, 2010, email to David McComas that he revised the contract and tried to get an office building for Mike a few months ago. Respondent executed the contract on September 3, 2009, over a month after his suspension became effective on July 23, 2009. Respondent was identified in the contract as an attorney and his address was listed as that of the General Counsel for the corporation. Respondent also held himself out as an attorney while suspended from the practice of law by the Florida Supreme Court. The contract Respondent signed in September 2009, specifically identified him as an attorney and included the title Esq. Respondent also describes himself as Esq. in the Florida Department of 4
State corporate records for his corporation, CEGI (attached as Trial Exhibit 1). The use of the title Esq. would reasonably lead to the conclusion that Respondent is authorized to practice law in direct violation of the Florida Supreme Court Order of Suspension. In Florida Bar v. Valdes, 464 So.2d 1183 (Fla. 1985), the Court enjoined an individual from engaging in the unauthorized practice of law, including the following specific activities: (d) Drawing contracts for corporations of which he was an officer or director; (e) Representing individuals in the purchase of real property; (f) Giving legal advice regarding eviction proceedings; and, (g) Representing himself as an attorney authorized to practice law in the State of Florida. (Id. At 1184) Although not specifically addressed as allegations within the Petition, I further recommend that the Respondent be found guilty, once again, of violating the following Rules Regulating The Florida Bar: Rule 3-4.3 (committing act that is unlawful or contrary to honesty and justice); Rule 4-5.5 (unlicensed practice of law); Rule 4-8.4(a) (violating or attempting to violate Rules of Professional Conduct); Rule 4-8.4(c) (conduct 5
involving dishonesty, fraud, deceit or misrepresentation); and Rule 4-8.4(d) (conduct in connection with the practice of law that is prejudicial to the administration of justice). IV. Recommendation as to Disciplinary Measures to Be Applied: This is the fourth of Respondent s cases in which I have served as Referee over the past three years. As I have repeatedly found in each of these past violations, the Respondent has continued to exhibit an attitude of arrogance and has shown absolutely no remorse nor provided any evidence that he will ever meet the standards imposed by the Oath of every Florida Attorney. Having reviewed the evidence in each of these proceedings, it is my conclusion beyond any doubt that the Respondent, Mr. Kevin J. Hubbart, lacks the integrity required of every Florida Attorney. As the Florida Supreme Court stated in The Florida Bar v. Lancaster, 448 So.2d 1019, 1024 (Fla. 1984), our profession can operate properly only if its individual members conform to the highest standards of integrity in all dealings with the legal system. Despite both the imposition of, and then the Referee recommended imposition of more severe discipline with each successive violation, the Respondent continues to flout the authority of the Supreme Court and The Florida Bar. As such, this case and its unique facts and circumstances demand the most severe penalty. I respectfully recommend that Mr. Kevin J. Hubbart be found 6
in contempt of the Order of Suspension issued by the Florida Supreme Court and that he be permanently disbarred from the practice of law. V. Personal History and Past Disciplinary Record: After the finding of guilty and prior to recommending discipline to be recommended pursuant to Rule 3-7.6(m)(l), I considered the following personal history and prior disciplinary record of the respondent, to wit: Year of Birth: 1963 Date Admitted to Bar: 11/20/1996 Prior Disciplinary convictions with extensive violations, and Disciplinary Measures Imposed and Recommended to the Florida Supreme Court: On January 7, 2010, in Case No.: SC09-1218, TFB No.: 2008-11,146(6A), this Referee recommended that the Respondent be permanently disbarred from the practice of law based upon a continued pattern of willful misconduct in violation of the Rules Regulating the Florida Bar. By Order dated January 17, 2008, costs of $4,390.32, relating to Case No. SC07-835; TFB No. 2005-10,651(6A), 2005-11,186(6A), 2005-11,578(6A), and 2006-11,326(6A), were assessed against Respondent payable within 30 days after the Order became final. Respondent was advised by The Florida Bar that he was required to pay the assessed costs in order to remain eligible to practice law. By letter dated January 29, 2008, Respondent 7
was sent notice from The Florida Bar informing him that the assessed costs were required to be paid no later than March 3, 2008. Respondent was also notified within this correspondence that if costs became delinquent, he would not be entitled to practice law in Florida until such time as the delinquency was cured. On March 4, 2008, Respondent, at his official bar address, was sent formal notice from The Florida Bar that he had indeed become delinquent for failure to pay assessed costs, effective March 4, 2008, and was no longer entitled to practice law in Florida. Without having paid the costs assessed and ordered by the Florida Supreme Court, the Respondent represented his client and employer, Daniel LaSalla, in a multi-party civil litigation matter scheduled for trial on March 10, 2008, and appeared for trial. Respondent asked for, and was granted, a 24-hour continuance for trial. At that time, Respondent did not advise the Court or opposing counsel that he had become a delinquent member of The Florida Bar and was not authorized to practice law. After the trial was continued, Respondent continued to practice law by representing Daniel LaSalla in settlement negotiations and by disseminating pleadings and papers relative to the case. By email, on the evening of March 10, 2008, Respondent notified one of his opposing attorneys that he would be asking for a continuance the next day. Respondent failed to advise 8
counsel or the Court at that time that he had become a delinquent member of The Florida Bar and was not authorized to practice law. When trial was reconvened on the morning of March 11, 2008, Respondent informed the Court and opposing counsel that he was unable to proceed because he was ineligible to practice. As such, the trial court in the Sixth Judicial Circuit issued an order continuing the trial of the matter and reserved ruling on the amount of sanctions to be granted to Plaintiff and Defendant Subway Real Estate Corporation as a result of Mr. Hubbart s conduct in this matter. On December 11, 2009, this Referee recommended that the Respondent receive a three year suspension from the practice of law in SC09-1040, TFB No.: 2009-11,443 (6A). In that matter, the Referee found as follows: On June 22, 2009, The Florida Bar filed a Notice of Determination of Guilt in the following misdemeanor and felony matters: CTC03-01180MMANO-E, CRC03-00880CFANO-K, CRC08-10132CFANO-K, and CRC08-18754CFANO-K. The Respondent entered pleas of Nolo Contendere in each of these criminal matters and the respective Courts entered orders witholding adjudication and imposing various sanctions in the four separate worthless check charges; one misdemeanor and one felony on December 15, 2003, and two felonies on May 5, 2009. The amount of the outstanding checks was as follows: $99.55, $245.92, $330.00 and $220.68. 9
The Florida Bar elected to proceed against the Respondent on the determination of guilt in the three felony matters. The Florida Supreme Court entered an order suspending the Respondent from the practice of law on June 23, 2009, effective July 23, 2009. Pursuant to Rule 3-7.2(h)(2), the undersigned was appointed Referee to hold a sanctions hearing. A sanctions hearing was held on August 21, 2009, and then continued until September 25, 2009, at the request of the Respondent. On September 25, 2009, the sanctions hearing was reconvened to receive any additional evidence and receive and consider the argument of counsel. At the August 21, 2009, hearing, the Respondent admitted that he had been charged by information with the various felonies and testified that he was not informed of the dishonored checks before being criminally charged. He admitted entering pleas of nolo contendere to the charges and these pleas were accepted by the respective Courts. He also admitted to having been sentenced to the various criminal sanctions as noticed and offered by The Florida Bar. Respondent stated at the time of his issuance of the four worthless checks over a period of six years, he was under extreme pressure with a business deal gone bad and was engaged in intense litigation. Respondent testified that he had no knowledge of the dishonored checks until it was too late to avoid criminal liability. Respondent testified that he suffered from attention deficit disorder (ADD) and that this condition caused him 10
to fail to focus upon and timely respond to important matters. This Referee afforded the Respondent additional time until the continued hearing on September 25, 2009, to provide any available medical evidence regarding this putative matter offered by the Respondent in extenuation or mitigation. The Respondent failed to present any additional mitigation evidence and had no additional information to present at the September 25, 2009, hearing. In fact, the Respondent never presented any credible evidence of any kind other than his own statement regarding this alleged medical condition. At all times during these proceedings, the Respondent presented himself in a coherent and logical fashion, appearing to be free from any medical condition which might otherwise adversely affect his ability to focus or concentrate on these matters or their potentially adverse consequences. Public Reprimand in SC07-835, TFB No.: 2004-10,651(6A), 2005-11,186(6A), 2005-11,578(6A), and 2006-11,326(6A). In this matter, the Respondent entered a Conditional Guilty Plea for Consent Judgment and an Addendum to the Conditional Guilty Plea for Consent Judgment. The Respondent entered a Conditional Guilty Plea to the following charges and violations: Count I where he was guilty of violating Rule 1-3.4(a) (A CLER delinquent member shall not engage in the practice of law in this state); 1-3.6 (Any person who fails to comply with CLER shall be deemed a delinquent member and shall not engage in 11
the practice of law in Florida); 4-5.5 (A lawyer shall not practice law in violation of the regulation of the profession); 4-7.10(a) (A lawyer shall not use a firm name, letterhead, or other professional designation that violates subdivision (b)(1) of rule 4-7.2); and 4-7.10(b) (A lawyer may not practice under a deceptive trade name). Count II where he was guilty of violating Rule 3-4.3 (Misconduct and Minor Misconduct); 4-1.4(a) (A lawyer shall keep a client reasonably informed about the status of a matter and shall comply with reasonable requests for information); 4-1.5(f) (A contingency fee agreement shall be in writing and shall state the method by which the fee is to be determined; upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement showing the remittance to the client and the method of its determination); 4-1.7(b) (Duty to avoid limitation on independent professional judgment); 4-1.8(a) (A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client); 4-1.8(i) (A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client); 4-7.10(a) (A lawyer shall not use a firm name, letterhead, or other professional designation that violates subdivision (b)(1) of rule 4-7.2); and 4-7.10(b) (A lawyer may not practice under a deceptive trade name). 12
Count III where he was guilty of violating Rule 3-4.3 (Misconduct and Minor Misconduct); 4-1.15 (A lawyer shall comply with The Florida Bar Rules Regulating Trust Accounts); 4-7.10(a) (A lawyer shall not use a firm name, letterhead, or other professional designation that violates subdivision (b)(1) of rule 4-7.2); 4-7.10(b) (A lawyer may not practice under a deceptive trade name); 4-8.4(a) (A lawyer shall not violate or attempt to violate the Rules of Professional Conduct); 5-1.1(a) (A lawyer shall hold in trust, separate from the lawyer s own property, funds and property of clients or third persons that are in a lawyer s possession in connection with a representation; a lawyer may maintain funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to pay bank charges relating to the trust account); 5-1.1(b) (Money or other property entrusted to any attorney for a specific purpose is held in trust and must be applied only to that purpose); 5-1.1(e) (Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person; a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive); 5-1.2(b) (A lawyer shall maintain the minimum trust accounting records prescribed by the Rules Regulating The Florida Bar; and 5-1.2(c) (A lawyer who receives or disburses trust money or property shall follow the 13
minimum trust accounting procedures prescribed by the Rules Regulating The Florida Bar). Count IV where he was guilty of violating Rule 3-4.3 (Misconduct and Minor Misconduct); 4-1.7(a) (A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client; 4-1.7(b) (A lawyer shall not represent a client if the lawyer s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer s responsibilities to another client or to a third person or by the lawyer s own interest); and 4-8.4(a) (A lawyer shall not violate or attempt to violate the Rules of Professional Conduct). The referee notes that the Respondent is not certified in any area of practice. Aggravating Factors: Under Standard 3.0, the Referee should consider the following factors: a. the duty violated; b. the lawyer s mental state; c. the potential or actual injury caused by the lawyer s misconduct; and, d. the existence of aggravating or mitigating factors. Standard 6.2 states that disbarment is appropriate when a lawyer knowingly 14
violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding. The unrebutted evidence proves beyond any reasonable doubt that the Respondent has engaged in deliberate conduct in direct contravention of the Order of Suspension issued by the Florida Supreme Court. Standard 9.22 lists the factors which may be considered in aggravation. I find the following factors to be pertinent under these facts as to this Respondent: a. Respondent s prior disciplinary record with extensive violations in SC07-835, TFB No.: 2004-10,651(6A), 2005-11,186(6A), 2005-11-578(6A), and 2006-11326(6A); and recommended findings of violations in SC09-1040, TFB No.: 2009-11,443(6A). b. Pattern of misconduct over an extended period of time from 2004 to the present. This Referee has considered that the recommended punishment must be authorized under the Florida Standards for Imposing Lawyer Sanctions and must have a reasonable basis in existing case law. Florida Bar v. Spear, 887 So. 2d 1242 (Fla. 2004). Of particular note with respect to this Respondent is the fact that this lengthy 15
pattern of misconduct has continued for the past five years and throughout these many disciplinary proceedings. In Florida Bar v. Springer, 873 So.2d 317 (Fla. 2004), the Florida Supreme Court upheld the Referee s recommendation for disbarment based on Springer s multiple instances of misconduct that occurred over the span of ten years. The Supreme Court in Springer noted that cumulative misconduct should be dealt with more harshly than isolated misconduct. The Respondent s egregious cumulative conduct over a lengthy period of time warrants the punishment of permanent disbarment. The record of these disciplinary proceedings and the underlying litigation are replete with instances where the Respondent s course of conduct demonstrates that the Respondent has absolutely no understanding of the most fundamental legal doctrines or procedures which resulted in a sanction order against the Respondent in the underlying litigation [Standard 4.51]. The Respondent engaged in intentional conduct in the underlying litigation involving dishonesty, fraud, deceit or misrepresentation to both opposing counsel and the presiding Judge. This pattern of intentional misconduct seriously adversely reflects on his fitness to ever practice law [Standard 5.11f]. In this case, I find that the Respondent has engaged not only in the unauthorized practice of law in direct violation of the Order of Suspension issued 16
by the Florida Supreme Court but, he has also continued to engage in a willful and contumacious pattern of misconduct designed to benefit both himself and his clients and frustrate the system of laws that govern each of us. Moreover, the continued misconduct has caused financial damage to other members of the Florida Bar and the Respondent s clients and adversaries. Having reviewed Standard 2 with respect to sanctions, I find that with respect to this Respondent, the only appropriate sanction can be permanent disbarment, forever terminating his status as a lawyer. I recommend that this disbarment be permanent based upon the extensive pattern of damaging misconduct over a protracted period of time. The present circumstances are distinguishable from the cases where lesser punishment was recommended by a Referee and approved by the Florida Supreme Court due to the existence of substantial aggravating circumstances and the lack of any degree of compliance with Orders of the Florida Supreme Court or any rehabilitative efforts by the Respondent. I find that permanent disbarment is required by these unique circumstances and that this recommendation is consistent with the Florida Standards for Imposing Lawyer Sanctions and the purposes of discipline as set forth in Florida Bar v. Spear. Mitigating Factors: None presented by this Respondent. 17
It is recommended that all costs and expenses of these proceedings be charged to the Respondent and that interest at the statutory rate accrue and be payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar. Dated this 24 th day of January, 2010. Copies sent via email to: Gregory P. Holder The Honorable Gregory P. Holder, Referee Karen B. Lopez, Bar Counsel, The Florida Bar, 4200 George J. Bean Pkwy., Suite 2580, Tampa, Florida 33607 Kevin J. Hubbart, Respondent, 2471 N. McMullen Booth Rd., Suite 316, Clearwater, Florida 33759-1351 Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300 18