IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, Supreme Court Case No. SC06-1872 v. The Florida Bar File Nos. 2001-51,023(17C) 2003-50,489(17C) WILLIAM ROACH, JR., Respondent. / REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: The Florida Bar filed its Complaint in The Florida Bar File Nos. 2001-51,023(17C) and 2003-50,489(17C) with the Supreme Court of Florida on or about September 21, 2006. Thereafter, the undersigned was appointed to preside as Referee in the proceeding by order of the Chief Judge of the Fifteenth Judicial Circuit. A status conference was held on November 14, 2006, and the final hearing was held on December 11, 2006. During the course of these proceedings, Respondent was represented by Kevin P. Tynan, and The Florida Bar was represented by Ronna Friedman Young. The parties entered into a Joint Pretrial Stipulation dated December 11, 2006. By virtue of the Joint Pretrial Stipulation, Respondent did not contest the
facts or rule violations set forth in The Florida Bar s Complaint. The only issue for purpose for the final hearing was the Referee s recommendation of discipline. The parties further stipulated that Exhibits A through J of the bar s Complaint would be considered as admitted into evidence without the bar needing to move additional copies into the record. 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. II. FINDINGS OF FACT: A. Jurisdictional Statement: Respondent is, and at all times material to this action was, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. B. Narrative Summary of Cases: The Florida Bar File No. 2001-51,023(17C): 1. Respondent was retained to represent Wilson Dorveus and Marie Laguerre with respect to personal injuries they incurred in an accident that occurred on or about April 2, 1995. 2. On or about July 25, 1995, Respondent executed a letter of protection agreeing to protect the fees of Dr. Rick E. Bruns, a medical provider who treated Ms. Laguerre as a result of injuries she sustained in the accident. 2
3. On or about October 15, 1998, Respondent filed suit against JJ Kelley Charter Bus Service Co., the owner of the bus that collided with Wilson Dorveus automobile. Ms. Laguerre was a passenger in Mr. Dorveus automobile. 4. On or about April 30, 1999, the suit filed by Respondent was dismissed for failure to serve JJ Kelley Charter Bus Service Co. A true copy of the Final Order of Dismissal was admitted as bar Exhibit A. 5. Respondent failed to disclose to his clients what happened with respect to the suit. 6. Dr. Bruns rendered medical services to Ms. Laguerre, which had been paid in part by insurance, but Dr. Bruns claimed a balance due of about $4,284. 7. In or about January 2001, Dr. Bruns complained to the bar that he believed that Respondent had settled Ms. Laguerre s case without protecting Dr. Bruns fees. 8. By letter dated February 7, 2001, to The Florida Bar, admitted as bar Exhibit B, Respondent represented that: The personal injury claim of Maria Laguerre is in the process of being settled at this time. Said representation was false in that Ms. Laguerre s suit had been dismissed and the statute of limitations had run on her claim without any settlement having been negotiated. 3
9. By letter dated June 13, 2001, to The Florida Bar, admitted as bar Exhibit C, Respondent represented that he had received the settlement check. Said representation was false in that Respondent had not received any check. 10. By letter dated January 27, 2002, admitted as bar Exhibit D, Respondent represented that he had received a $3,500 settlement for the claim of Ms. Laguerre but had not distributed the proceeds because Ms. Laguerre and Dr. Bruns had not agreed on a settlement of the doctor s lien. Said representation was false in that there was no settlement. 11. In response to The Florida Bar s request for documentation showing the receipt and deposit of the settlement, Respondent, by a separate letter also dated January 27, 2002, admitted as bar Exhibit E, represented that: The funds pertaining to this matter were deposited into trust and have remained in the account. Said representation was false in that no funds were deposited. Also attached to both letters dated January 27, 2002, was a client ledger that Respondent fabricated to make it appear that he had received settlement proceeds on May 24, 2001, when he had not. 12. On or about June 28, 2002, Respondent filed an interpleader action in the County Court of Broward County naming Rick E. Bruns, D.C. and Marie Laguerre as defendants. A true copy of the complaint was admitted as bar Exhibit F. 4
13. Said interpleader action falsely represented that Respondent was holding the sum of $3,500 from the settlement of Ms. Laguerre s claim. 14. Respondent never served Ms. Laguerre with this interpleader action. 15. Respondent deposited $3,500 of his own funds into the court registry for purposes of the interpleader action. 16. The Florida Bar made repeated requests for Respondent to produce written confirmation of the settlement. 17. After the bar s numerous requests failed to produce any settlement documents, Seventeenth Judicial Circuit Grievance Committee C issued a subpoena duces tecum for Respondent to appear for a deposition, and, on or about November 8, 2002, respondent testified under oath. A true copy of the transcript was admitted as bar Exhibit G. 18. Respondent made numerous false statements under oath during this appearance and falsely testified that he had settled Ms. Laguerre s claim for $3,500 with Lancer Insurance Company, an out-of-state carrier. 19. During the deposition, Respondent was asked: Which insurance company paid this claim? He answered: I believe it was Lancer. (See bar Exhibit G, page 18, line 18). 5
20. Respondent further falsely represented that he had 5 to 10 conversations with Lancer Insurance Company. (See bar Exhibit G, page 19, lines 15-17). 21. During the deposition, Respondent was given numerous opportunities to disclose the true circumstances surrounding the dismissal of Ms. Laguerre s suit and lack of settlement, but he failed to do so. 22. Respondent was also asked about his letter dated February 7, 2001, to the bar which letter stated that upon receipt of the check Respondent intended to protect Dr. Bruns lien. Respondent was asked: Was that a true statement at the time? The Answer, on page 13, line 1 was: Absolutely. (See bar Exhibit G, page 12, lines 12 and 25, and page 13, line 1). 23. When asked about the settlement agreement or release, Respondent claimed that he was not able to locate it in the file. 24. On or about January 29, 2003, The Florida Bar filed a petition for an order to show cause against Respondent in the Supreme Court of Florida, SC03-154, for Respondent s failure to produce any documents pursuant to the subpoena duces tecum. 25. On or about February 21, 2003, the Supreme Court of Florida issued an Order requiring Respondent to show cause why he should not be held in contempt. 6
26. On or about March 12, 2003, Respondent, through counsel, filed a response to the Order. A true copy of the response was admitted as bar Exhibit H. 27. The response contained the following representation: The Respondent appeared for his deposition as required and truthfully answered all questions posed to him. Said representation was false in that the sum and substance of Respondent s testimony concerned a settlement that he had fabricated. (See bar Exhibit H, paragraph 4). 28. Subsequently, the contempt proceeding was voluntarily dismissed on or about September 11, 2003. 29. On or about April 11, 2006, Respondent was again subpoenaed for deposition. This deposition was taken by a bar counsel who had not appeared in any of the prior proceedings. A true copy of this transcript, without exhibits, was admitted as bar Exhibit I. 30. During this deposition, Respondent admitted that he was aware that the statute of limitations for personal injury claims in the State of Florida was 4 years. (See bar Exhibit I, page 15, lines 1-23). 31. Respondent was asked how he could have settled a claim in 2001, subsequent to the expiration of the statute of the limitations, and Respondent falsely testified that he had kept the matter going with the insurance company. (See bar Exhibit I, page 17, line 4 to page 19, line 24). 7
32. Respondent falsely identified the settling insurance company as Lancer Insurance Company located in the Midwest, Illinois, Ohio, one of those states. (See bar Exhibit I, page 20, lines 4 to 9). 33. The court reporter sent a letter to counsel for Respondent advising that Respondent had 30 days to read and sign the transcript and within the 30 days, Respondent made no corrections to the transcript. 34. Through investigation, the bar was able to locate offices of Lancer Insurance Company in Long Beach, New York, and obtained correspondence from them confirming that they had insured the bus company in question, but they did not make any settlement payments to Respondent. Lancer s letters were attached as the first two exhibits to the deposition transcript of respondent taken on June 26, 2006, admitted as bar Exhibit J. 35. During the June 26, 2006, deposition, Respondent was confronted with the letters from Lancer Insurance Company, and Respondent admitted that he had lied to the bar, lied to the Court in his interpleader action, lied to Dr. Bruns, lied in prior testimony under oath, and failed to disclose to his clients, Wilson Dorveus and Marie Laguerre, what really happened to their claims. 36. 837.02, Fla. Stat., provides that whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony. 8
37. Respondent made false statements, which he did not believe to be true, under oath in official proceedings in regard to material matters in his depositions on or about November 8, 2002, and on or about April 11, 2006. The Florida Bar File No. 2003-50,489(17C): 38. Respondent was retained by Richard Agoglia on or about September 7, 2001, to file suit against his landlord in a landlord-tenant dispute. 39. Mr. Agoglia tendered, and Respondent accepted $750 as a retainer for his services. 40. Despite attempts by Mr. Agoglia to contact Respondent by telephone and in writing, Respondent failed to communicate appropriately with Mr. Agoglia. 41. Respondent failed to timely file suit for Mr. Agoglia. 42. Respondent filed a Complaint on or about October 2, 2002, over a year after Respondent was hired, to bring suit against the landlord. The Complaint in Count I asked for specific performance for the landlord to repair or replace the roof and in Count II requested damages for repair to the interior of the premises. 43. Respondent failed to keep Mr. Agoglia reasonably informed about the status of the matter, failed to comply with Mr. Agoglia s requests for information, and failed to explain the matter to the extent reasonably necessary to permit Mr. Agoglia to make informed decisions regarding the representation. 9
44. Mr. Agoglia eventually terminated Respondent s services and obtained successor counsel. III. RECOMMENDATION AS TO GUILT: The Florida Bar File No. 2001-51,023(17C): A. Count I: By testifying falsely under oath on or about November 8, 2002, and by testifying falsely under oath on or about April 11, 2006, Respondent violated R. Regulating Fla. Bar 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 or not the act is a felony or misdemeanor, may constitute a cause for discipline.]; 4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.]; and 4-8.4(d) [A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice...]. B. Count II: By repeatedly lying to the bar in connection with the disciplinary matter, Respondent violated R. Regulating Fla. Bar 4-8.1(a) [An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not knowingly make a false statement of material fact.]. 10
C. Count III: By lying to the County Court of Broward County in the interpleader action and by filing a false response, through counsel, in the contempt proceedings before the Supreme Court of Florida, Respondent violated R. Regulating Fla. Bar 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 or not the act is a felony or misdemeanor, may constitute a cause for discipline.]; 4-3.3(a)(1) [A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.]; 4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.]; and 4-8.4(d) [A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice...]. D. Count IV: By committing perjury, respondent violated R. Regulating Fla. Bar 4-8.4(b) [A lawyer shall not commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects]. E. Count V: By lying to Dr. Bruns, respondent violated R. Regulating Fla. Bar 4-4.1(a) [In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.]; and 4-11
8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.]. F. Count VI: By allowing his clients claims to be extinguished by the statute of limitations, Respondent violated R. Regulating Fla. Bar 4-1.1 [A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.] and 4-1.3 [A lawyer shall act with reasonable diligence and promptness in representing a client.]. G. Count VII: By failing to disclose to his clients the true facts surrounding the dismissal of their suit and the extinguishment of their claims, Respondent violated R. Regulating Fla. Bar 4-1.4(a) [A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.]; 4-1.4(b) [A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.]; and 4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.]. H. Count VIII: By manipulating his client ledgers to make it appear that he had received a settlement check when he had not, and submitting that ledger to the bar during the course of discovery, Respondent violated R. Regulating Fla. Bar 4-3.4(b) [A lawyer shall not fabricate evidence.]. 12
The Florida Bar File No. 2003-50,489(17C): I: Count IX: 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.]; 4-1.1 [A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.]; 4-1.3 [A lawyer shall act with reasonable diligence and promptness in representing a client.]; 4-1.4(a) [A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.]; 4-1.4(b) [A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.]; and 4-3.2 [A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.]. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: In the case before me The Florida Bar requested that the Respondent be disbarred from the practice of law and the Respondent suggested that a long term rehabilitative suspension should be imposed. I have reached the conclusion that a three year suspension, coupled with certain rehabilitative terms, would be the appropriate disciplinary sanction. The reasons for my determination are set forth below. 13
In reaching a proper disciplinary sanction the Supreme Court of Florida, has been consistently guided by the following precepts: First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. Second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations. The Florida Bar v. Pahules, 233 So. 2d 130 (Fla. 1970). The Florida Standards for Imposing Lawyer Sanctions (Florida Standards) suggest that the following general factors should also be considered in imposing sanctions: (a) (b) (c) (d) the duty violated; the lawyer s mental state; the potential or actual injury caused by the lawyer s misconduct; and the existence of aggravating or mitigating factors. During the final hearing, Bar counsel, pointed my attention In The Florida Bar v. Dodd, 118 So. 2d 17 (Fla. 1960), wherein a lawyer was disbarred for urging and advising several persons, including clients, to give false testimony. The court stated: No breach of professional ethics, or of the law, is more harmful to the administration of justice or more hurtful to the public appraisal of the legal profession than the knowledgeable use by an attorney of false testimony in the judicial process. The Florida Bar v. Dodd, 118 So.2d 17, 19 (Fla.1960). 14
The Bar also referred me to The Florida Bar v. Rightmyer, 616 So. 2d 953, 955 (Fla. 1993), wherein a lawyer was disbarred for being convicted by a criminal court of three felony counts of perjury related to his testimony in a civil mortgage foreclosure suit. The Respondent presented me with a range of case law to show the range of punishment that has resulted from lawyers lying to The Florida Bar during a disciplinary process. These cases included, The Florida Bar v. Walker, 672 So. 2d 21 (Fla. 1996) the lawyer received a thirty day suspension for failing to correct a misunderstanding of the facts of a case. A sixty day suspension was handed out when a lawyer made a knowingly false statement concerning his attempt to improperly influence a Referee. The Florida Bar v. Saphirstein, 376 So. 2d 7 (Fla. 1979). Another lawyer was suspended for ninety days for submitting a false affidavit to the Bar and for making material misrepresentations to a court. The Florida Bar v. Corbin, 701 So. 2d 334 (Fla. 1997). Lastly, a one year suspension was handed down to a lawyer, for among other things, backdating a letter and representing to the Bar that it was real. The Florida Bar v. Rothstein, 835 So. 2d 2003 (Fla. 2002). In my opinion, these cases are much less significant, in terms of misconduct, than that presented to me in this case. The Supreme Court of Florida has consistently held that disbarment is an extreme measure of discipline that should be used only when that lawyer has 15
demonstrated an attitude or course of conduct that is wholly inconsistent with approved professional standards and therefore there must be a showing that this person should never be at the bar. The Florida Bar v. Moore, 194 So. 2d 264, 271 (Fla. 1967). In fact, this Court has even stated that disbarment is reserved for those individuals who are beyond redemption. The Florida Bar v. Turk, 202 So. 2d 848 (Fla. 1967). After having listened to the trial testimony, it is my belief that Mr. Roach is not beyond redemption. In reaching my conclusion that the Respondent should be given a chance to establish rehabilitation in the future, I was motivated, in part, by three significant factors. 1 They were: 1. The Respondent, who has been a member of this Bar for just over twenty years, has never been disciplined. 2. I carefully listened to the testimony of Mr. and Mrs. Laguerre and Mr. Dorveus, while they did lose the right to proceed with their claims for personal injury as a direct result of the Respondent s neglect, I do not believe they suffered any compelling or egregious harm, in that the Respondent personally paid for each client s medical bills (chiropractor only) and both clients have or will receive funds from the Respondent s personal funds in an attempt to make them at least partially 1 My findings on mitigation and aggravation are included in the next section. I have carefully considered each factor and given them appropriate weight in reaching my recommendation. 16
whole, all without benefit of a release of any malpractice claim that can be filed against him. 3. Lastly, I carefully listened to the Respondent to ascertain his current credibility and sincerity. While on the stand and with Mr. Dorveus and both Mr. and Mrs. Laguerre still in the courtroom, he provided a heartfelt apology to them and expressed a vast amount of remorse for his actions in hiding his neglect of their personal injury case. After considering the parties stipulations, the testimony before me and the case law and other authority provided by both parties, it is my recommendation that the following sanction be imposed in this case: 1. A three year suspension from the practice of law. As this suspension requires proof of rehabilitation, I would request that any future reinstatement proceeding be assigned to this Referee to ascertain if the Respondent is truly rehabilitated from his misconduct in this case. 2. As part of the rehabilitation process, I am recommending that during the course of said three year suspension, the Respondent be required to participate in the Guardian Ad Litem Program and that he be required to volunteer 250 hours of his time for each year of his suspension for a total of 750 volunteer hours. 17
V. PERSONAL HISTORY, PAST DISCIPLINARY RECORD AND AGGRAVATING AND MITIGATING FACTORS: Prior to recommending discipline, and pursuant to R. Regulating Fla. Bar 3-7.6(k)(1), I considered the following: A. Personal History of Respondent: Age: 45 Date admitted to The Florida Bar: October 31, 1986 B. Aggravating Factors: 9.22(c) a pattern of misconduct (as evidenced by the multiple misrepresentations); 9.22(d) multiple offenses; 9.22(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary proceeding; 9.22(i) substantial experience in the practice of law (Respondent has been a member of The Florida Bar since October 31, 1986); C. Mitigating Factors: 9.32(a) absence of a prior disciplinary record; 9.32(l) remorse. 18
VI. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED: I find that The Florida Bar has incurred $3,123.55 in this matter and that same should be assessed against the Respondent: A. Grievance Committee Level Costs: 1. Court Reporter Costs (Depositions) $ 604.90 2. Bar Counsel Travel Costs $ 00.00 3. Copy costs $ 00.00 4. Mailing costs $ 00.00 B. Referee Level Costs: 1. Court Reporter Costs $ 155.00 2. Bar Counsel Travel (pre-final hrg.) $ 36.75 3. Bar Counsel Travel (final hrg.) $ 40.85 4. Copy costs $ 00.00 4. Mailing costs $ 00.00 C. Administrative Costs $ 1,250.00 D. Miscellaneous Costs: 1. Investigator Costs $ 319.05 2. Witness Fees $ 20.00 3. Staff Auditor $ 697.00 4. Telephone Charges $ 00.00 5. Translation Services Fees $ 00.00 6. Background Investigation $ 00.00 TOTAL ITEMIZED COSTS: $ 3,123.55 It is apparent other costs have or may be incurred. It is recommended such costs be charged to Respondent and if not paid immediately, that interest at the statutory rate shall accrue. Should Respondent fail to satisfy his cost obligation within 30 days of the entry of the final order in this case, Respondent shall be deemed 19
delinquent and shall be ineligib le 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, 2006. THOMAS H. BARKDULL, III, 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 East Jefferson Street, Tallahassee, Florida 32399-2300; and RONNA FRIEDMAN YOUNG, Bar Counsel, The Florida Bar, 5900 North Andrews Avenue, Suite 900, Fort Lauderdale, Florida 33309-2366; and KEVIN P. TYNAN, attorney for respondent, 8142 North University Drive, Tamarac, Florida 33321 on this day of, 2006. THOMAS H. BARKDULL, III, REFEREE 20