Florida Supreme Court finds lawyer guilty of dishonesty and increases suspension to 91 days
This article will discuss the recent Florida Supreme Court opinion which reversed a referee’s recommendation that a lawyer be found not guilty of dishonesty and increased the sanction from a 10 day suspension to a 91 day rehabilitative suspension. The case is The Florida Bar v. Berthiaume, No. SC08
The FactsAccording to the Court's opinion, on September 25, 2004, the lawyer signed and served a document titled "Subpoena Duces Tecum" on a bank via U.S. Mail. The "subpoena" directed the bank to produce certain records of the lawyer's client; including checks the client had written to the lawyer from the client's account at the bank, and which the bank had dishonored. The "subpoena" also stated: "If you fail to produce these records and the above requested information as described, you may be held in contempt of court, punishable by a fine or incarceration or both." Finally, the "subpoena" had the phrase "civil action" although there was no pending civil case. The bank refused to honor the "subpoena" and, through a lawyer, filed a Bar inquiry/complaint regarding the lawyer's alleged misconduct. A grievance committee subsequently found probable cause and the Bar filed a formal Complaint with the Florida Supreme Court.
The Referee's Findings and RecommendationsAfter a hearing, the referee found that the lawyer knowingly and deliberately sent the false subpoena and was responsible for the language in the fraudulent subpoena, including the language threatening incarceration and contempt and designed the purposefully misleading subpoena to cause the bank to produce the records, even though there was no legal authority for the subpoena. The referee recommended that the lawyer be found guilty of violating Bar Rule 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). The referee further recommended that the lawyer be found not guilty of violating Bar Rules 4-4.1 (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), 4-4.4 (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person), and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Finally, the referee recommended that the lawyer receive a ten (10) day suspension.
The Court's Opinion and RulingBoth the lawyer and the Bar petitioned the Florida Supreme Court for review of the referee's report. The lawyer argued that she should not be found guilty of violating Rule 4-8.4(c) since the referee did not find that she had engaged in fraud. The Bar argued that the findings should be upheld but that recommended discipline of a 10 day suspension was insufficient. After citing to other Florida Bar discipline cases where lawyers were found guilty of violating Rule 4-8.4(c) without a specific finding of fraud, the opinion found that "the facts, record, and case law show that (the lawyer) is guilty of violating (Bar Rule 4-8.4(c)) due to her intentional misrepresentation and deceitful conduct...by...deliberately crafting and mailing the fraudulent subpoena that was 'clearly designed to cause the bank to produce the records without legal authority.'' Further, because the record and the referee's findings showed that the lawyer "knowingly and deliberately sent the purported subpoena with the offending language," which was "clearly designed to cause the bank to produce the records without legal authority," and thus "clearly misleading", the lawyer was guilty of violating Bar Rule 4-8.4(c). After discussing previous Florida Bar discipline cases, the opinion also rejected the referee's recommended discipline of a ten (10) day suspension since it did not "have a reasonable basis in existing case law" and instead imposed a ninety-one (91) day suspension. The lawyer will now be required to file a petition for reinstatement after the suspension time has ended and show rehabilitation and fitness to practice before a referee before she will be able to resume practicing law, a process that may take 9 to 12 months or longer.
ConclusionThe underlying facts in this case appear to be quite blatant; however, the significance of this opinion is that the Florida Supreme Court found that fraud does not have to pled and argued by the Bar or found by the referee to constitute misrepresentation in violation of Florida Bar Rule 4-8.4(c). In addition, this is another recent example of the Court rejecting the findings and discipline recommendations of a referee and significantly increasing the discipline imposed on the lawyer.