IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, …

IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR,

CASE NO.: SC07-2 Complainant,

TFB NO.: 2004-10,635(20D) v. 2005-10,282(20A) 2005-10,465(20A) NADEGE ELLIOTT

Respondent.

_____________________________/

THE FLORIDA BAR'S INITIAL BRIEF

HENRY LEE PAUL Assistant Staff Counsel Florida Bar No. 508373 The Florida Bar

5521 W. Spruce St., Suite C-49 Tampa, Florida 33607-5958 (813) 875-9821

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TABLE OF CONTENTS PAGE

TABLE OF CONTENTS ............................................................................................ i TABLE OF CITATIONS ........................................................................................ iii SYMBOLS AND REFERENCES .......................................................................... vii STATEMENT OF THE CASE AND FACTS .......................................................... 1 SUMMARY OF THE ARGUMENT ...................................................................... 15 STANDARD OF REVIEW ..................................................................................... 17 ARGUMENT ........................................................................................................... 18

I. THE REFEREE'S RECOMMENDATION OF A TWO-YEAR SUSPENSION DOES NOT HAVE A REASONABLE BASIS IN EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS ................................................ 18

II. THE REFEREE ERRED IN FAILING TO FIND ADDITIONAL

AGGRAVATING FACTORS THAT ARE SUPPORTED BY THE RECORD AND SUPPORT A SANCTION OF PERMANENT DISBARMENT. .................................................................................. 29

A. The Referee erred in failing to find in aggravation that Elliott

acted with a dishonest or selfish motive ................................... 30 B. The Referee erred in failing to find in aggravation that Elliott

engaged in bad faith obstruction of the disciplinary process. ... 32 C. The Referee erred in failing to find in aggravation that Elliott

submitted false evidence, false statements or other deceptive

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practices during the disciplinary process. ................................. 35 D. The Referee erred in failing to find as an aggravating factor

Standard 9.22(h), the vulnerability of Elliott's victims ............. 40 E. The Referee erred in failing to find as an aggravating factor

Standard 9.22(j), in difference to making restitution ................ 41

III. PERMANENT DISBARMENT IS THE APPROPRIATE SANCTION FOR ELLIOTT'S EGREGIOUS AND CUMULATIVE MISCONDUCT. .................................................................................. 42

A. Disbarment is the presumptive sanction for the misuse of trust

funds. ......................................................................................... 43 B. Elliott's cumulative misconduct warrants permanent

disbarment. ................................................................................ 44 C. Elliott's misconduct during the disciplinary proceedings

demonstrates her complete unfitness for the practice of law. ... 46

CONCLUSION ........................................................................................................ 50 CERTIFICATE OF SERVICE ................................................................................ 51 CERTIFICATION OF FONT SIZE AND STYLE ................................................. 52 APPENDIX ........................................................................................................... A-1

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TABLE OF CITATIONS

CASES PAGE Chandris v. Yanakakis, 668 So.2d 180 (Fla. 1996) ................................................. 28 Florida Bar v. Batista, 846 So.2d 479 (Fla. 200) .................................................... 28 Florida Bar v. Bern, 425 So.2d 526 (Fla. 1982) ...................................................... 44 Florida Bar v. Della-Donna, 583 So.2d 307 (Fla. 1989) ........................................ 26 Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005) .............................................. 48 Florida Bar v. Germain, 957 So.2d 613 (Fla. 2000) ............................................... 17 Florida Bar v. Golden, 566 So.2d 1286 (Fla. 1990) ................................................ 45 Florida Bar v. Karten, 829 So.2d 883 (Fla. 2002) .................................................. 45 Florida Bar v. Korones, 752 So.2d 586 (Fla. 2000) ................................................ 49 Florida Bar v. Langston, 540 So.2d 118 (Fla. 1989) .............................................. 17 Florida Bar v. Martinez-Genova, 959 So.2d 241 (Fla. 2007) ................................. 26 Florida Bar v. Orta, 689 So.2d 270 (Fla. 1977) ...................................................... 25 Florida Bar v. Puente, 963 So.2d 219 (Fla. 2007) ...................................... 20, 24, 25 Florida Bar v. Roberts, 770 So.2d 1207 (Fla. 2000) ............................................... 45 Florida Bar v. Springer, 873 So.2d 317 (Fla. 2004) ............................................... 22

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Florida Bar v. Temmer, 753 So.2d 555 (Fla. 1999) ................................................ 17 Florida Bar v. Travis, 765 So.2d 689 (Fla. 2000) ....................................... 20, 43, 44 Florida Bar v. Williams, 753 So.2d 1258 (Fla. 2000) ............................................. 45 Florida Bar v. Winter, 549 So.2d 188 (Fla. 1989) .................................................. 27 Florida Bar v. Zyne, 266 So.2d 668 (Fla. 1972) ...................................................... 48 RULES OF DISCIPLINE R. Regulating Fla. Bar 3-7.7 ...................................................................................... 1 R. Regulating Fla. Bar 4-1.1 ................................................................................ 6, 21 R. Regulating Fla. Bar 4-1.4(a) .................................................................................. 9 R. Regulating Fla. Bar 4-1.4(b) ................................................................................. 9 R. Regulating Fla. Bar 4-1.5(a) ............................................................................ 6, 26 R. Regulating Fla. Bar 4-1.5(e) ................................................................................ 13 R. Regulating Fla. Bar 4-1.5(f) ............................................................................ 9, 13 R. Regulating Fla. Bar 4-1.15(a) .......................................................................... 7, 20 R. Regulating Fla. Bar 4-1.15(b) ............................................................................... 7 R. Regulating Fla. Bar 4-1.16(d) ........................................................................... 7, 9 R. Regulating Fla. Bar 4-8.4(a) ........................................................................ 7, 9, 13

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R. Regulating Fla. Bar 4-8.4(c) ........................................................10, 24, 25, 26, 30 R. Regulating Fla. Bar 5-1.1 .................................................................................... 43 R. Regulating Fla. Bar 5-1.1(a) ...................................................................... 7, 10, 20 R. Regulating Fla. Bar 5-1.1(b) ......................................................................... 10, 20 R. Regulating Fla. Bar 5-1.1(e) ...................................................................... 7, 10, 13 FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS Fla. Stds. Imposing Law. Sancs. 3.0 ........................................................................ 19 Fla. Stds. Imposing Law. Sancs. 4.1 ........................................................................ 19 Fla. Stds. Imposing Law. Sancs. 4.11 ...................................................................... 19 Fla. Stds. Imposing Law. Sancs. 4.5 ............................................................ 20, 22, 23 Fla. Stds. Imposing Law. Sancs. 4.51 ...................................................................... 21 Fla. Stds. Imposing Law. Sancs. 4.6 ........................................................................ 23 Fla. Stds. Imposing Law. Sancs. 4.61 .......................................................... 23, 25, 26 Fla. Stds. Imposing Law. Sancs. 5.1 ........................................................................ 24 Fla. Stds. Imposing Law. Sancs. 5.11(f) .................................................................. 25 Fla. Stds. Imposing Law. Sancs. 6.1 ........................................................................ 25 Fla. Stds. Imposing Law. Sancs. 6.11(a) ................................................................. 25

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Fla. Stds. Imposing Law. Sancs. 7.0 .................................................................. 25, 26 Fla. Stds. Imposing Law Sancs. 7.1 ......................................................................... 26 Fla. Stds. Imposing Law. Sancs. 8.0 ........................................................................ 26 Fla. Stds. Imposing Law Sancs. 8.1(a) .................................................................... 26 Fla. Stds. Imposing Law Sancs. 9.22(a) .................................................................... 3 Fla. Stds. Imposing Law. Sancs. 9.22(b) ........................................................... 29, 30 Fla. Stds. Imposing Law Sancs. 9.22(c) .................................................................... 3 Fla. Stds. Imposing Law Sancs. 9.22(d) .................................................................... 3 Fla. Stds. Imposing Law Sancs. 9.22(e) ............................................................ 29, 32 Fla. Stds. Imposing Law Sancs. 9.22(f) ...........................................22, 25, 29, 32, 35 Fla. Stds. Imposing Law Sancs. 9.22(h) ............................................................ 29, 40 Fla. Stds. Imposing Law Sancs. 9.22(j) ............................................................. 29, 41

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SYMBOLS AND REFERENCES

In this Brief, the Petitioner, The Florida Bar, will be referred to as “The

Florida Bar” or “The Bar.” The Respondent, Nadege Elliott, will be referred to as

"Elliott" or “Respondent.”

“TR” will refer to the transcript of the final hearing before the Referee in

Supreme Court Case No. SC07-2 held on June 25, 26 and 27, 2007; July 2, 3, 9,

10, 11, 16, and 18, 2007; and September 17, 18, and 19, 2007. “SH” will refer to

the transcript of the sanctions hearing before the Referee held on October 16, 2007.

"RR" will refer to the Report of Referee dated October 4, 2007. "RR2" will refer

to the Report of Referee as to Sanctions dated October 23, 2007.

“HT” will refer to exhibits presented by The Florida Bar in relation to Count

I of the Complaint (Complaint of Harold Thomas). "LF" will refer to exhibits

presented by the Bar in relation to Count II (Complaint of Lucille Foster), and

"GG" will refer to exhibits presented by the Bar in relation to Count III (Complaint

of Glenn Green). “RT” will refer to exhibits presented by the Respondent in

relation to Count I, "RF" in relation to Count II, and "RG" in relation to Count III.

“Rule” or “Rules” will refer to the Rules Regulating The Florida Bar.

“Standard” or “Standards” will refer to Florida Standards for Imposing Lawyer

Sanctions.

1

STATEMENT OF THE CASE AND FACTS

Elliott was found guilty of violating the Rules Regulating The Florida Bar in

three separate counts based on allegations made by three separate complainants:

Harold Thomas, Lucille Foster, and Glenn Green. The final hearing and the

sanctions hearing were held intermittently over a period of 13 days. The Referee

issued two reports: one dated October 4, 2007, addressing guilt (RR), and a second

report dated October 23, 2007, addressing sanctions (RR2). Copies of the

Referee’s Reports, which contain extensive factual findings, are attached to this

Brief as Appendices “A” and "B" for the Court’s convenience.

The Referee recommended that Elliott be found guilty of violating numerous

Rules and be suspended for a period of two years. Elliott filed a petition for

review. The Florida Bar filed a cross petition for review requesting that Elliott be

permanently disbarred. The Bar also requested a review of the Referee's failure to

find additional aggravating factors supported by the record. Elliott withdrew her

petition for review, and the Bar proceeded pursuant to its petition for review of

sanctions. Pursuant to Rule 3-7.7 the jurisdiction of this Court is invoked.

Although each case is distinct, there are substantial similarities among all

three cases. In each case, the Referee found that Elliott took funds belonging to

her clients by either failing to deposit funds into trust, or by making unauthorized

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and undisclosed disbursements from trust. RR. In each case, Elliott cloaked her

deception by failing to deliver an accounting for the use of funds to her clients,

despite requests to do so. RR. In each case, Elliott obtained fees and cost money

in a mixed contingent fee case. In each case, Elliott took an initial fee to evaluate

the case, and then took a much larger secondary fee after verbal agreements to

represent the clients. An adequate fee agreement was never presented to any client

prior to acceptance of the secondary fee. RR. None of the fee agreements were in

compliance with the Rules. RR. The purported fee agreement in the Green case

was entered into when Elliott, while on rehabilitative suspension, approached her

former clients in a parking lot, after hours, and obtained their signature on an

undated fee agreement. RR 15. This incident occurred approximately 18 months

after Elliott made an undisclosed and unauthorized $10,000 disbursement of the

$15,000 secondary fee that had been placed in trust. RR 15-16.

In addition to the foregoing violations, the Referee found Elliott to be

incompetent and to have charged a clearly excessive fee in the Thomas case. The

Referee further recommended that Elliott be ordered to pay $3,800 in restitution to

Foster and $11,500 to Green. RR2. The Florida Bar did not request restitution in

the Thomas case because Thomas had sued Elliott for malpractice and obtained a

compensatory settlement. HT 35a, TR 257-59.

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The Referee made no findings as to the applicable Standards for Imposing

Lawyer Sanctions, except for aggravating and mitigating factors. The Referee

found the following aggravating factors to be applicable: Standard 9.22(a) prior

disciplinary offenses; (c) a pattern of misconduct; and (d) multiple offenses. The

Florida Bar requested findings of additional aggravating factors; however, the

Referee made no finding or comment regarding the additional requested

aggravating factors. Following is a review of the Referee's findings and supporting

evidence for each count of the Bar's Complaint.

COUNT I: This Count is based on the complaint of Harold Thomas, who

was described by Elliott as having “no lucidity.” HT 46 at 89-90. The lawyer who

subsequently represented Thomas in a malpractice case against Elliott stated that

Thomas was not sophisticated and did not understand what had transpired during

the representation. TR 242-44. Elliott represented Thomas in a whistleblower

claim against his former employer, the Collier County Sheriff. Thomas was

terminated on or about March 21, 2001. HT 1. On August 23, 2001, Thomas paid

Elliott a $2,500 research fee to determine if he had a viable cause of action. HT 4,

HT 5. The limitations period on this whistleblower claim ran on or about

September 22, 2001. RR 3; HT 51 at 31, HT 20, 27, 28, 31, 32; TR 250-54, 545-

46, 560. On November 7, 2001, two and one half months after the limitations

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period ran, Thomas paid Elliott $9,000 to file a whistleblower lawsuit against the

Sheriff. HT 8, 9. About this time, Elliott told Thomas the recovery would make

him “rich.” TR 79-80, 471. Thomas paid Elliott another $1,000 in May 2002. HT

17. She finally filed a lawsuit against the Sheriff on July 24, 2002. HT 19. Not

only was the lawsuit time barred, it was filed under the wrong statute (F.S. § 448 –

private whistleblower act) and misstated the date of termination as December

2001. Elliott accepted additional payments from Thomas totaling $2,172 in

December 2002 and January 2003. HT 23. Elliott ultimately charged and accepted

a total of $12,172 in fees after the limitations period had run. RR 6, 7.

On January 10, 2003, Elliott filed an amended complaint under the public

whistleblower act (F.S. § 112). HT 24. The initial complaint she filed under the

wrong statute was subject to a motion to dismiss. HT 20, 21. She attempted to

cure the limitations bar by alleging that Thomas had sent a letter to the Florida

Commission on Human Relations (FCHR) complaining about wrongful

termination. This letter had never been sent and was an after-the-fact fabrication.

RR 4. Elliott attached the false letter to the amended complaint. Although

Thomas testified that Elliott participated in creating this false letter, the Referee

found that this allegation was not supported by clear and convincing evidence. RR

5; HT 36, 38, 40; TR 106-23, 151-53, 525. Elliott wrongfully believed that this

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letter, if sent, would have remedied any limitations bar. RR 5; HT 6, HT 42, HT

51 at 28-32, 35-37, 72-75; TR 2009-10. The FCHR had no authority to consider a

claim against the Sheriff, and the letter, even if sent, would have had no impact on

the limitations period. RR 2-9; HT 27, 28, 31; TR 539-54. Elliott continued to

assert throughout the disciplinary process that the lawsuit was timely filed and that

FCHR was required to be given notice. TR 2009-10, HT 42, HT 51 at 28-32, 35-

37, 72-75.

Elliott claimed that Thomas deceived her as to the date of his termination

and falsely told her it was December 2001 as opposed to March 2001 and that this

alleged deception was the reason the limitations period expired. TR 1990-92, HT

51 at 81. Elliott made this claim despite the fact she had the notice of termination

in her file (HT 1), and later produced a letter to Thomas dated September 25, 2001

referencing his prior termination. HT 6. Elliott wrongfully believed that she had

to wait 180 days to file suit because she thought the Department of Insurance had

to be given notice pursuant to the Florida Tort Claims Act. HT 10, HT 45 at 23, 34

- 37, 65; HT 51 at 45; TR 93, TR 536-37.

Elliott deposited into her operating account the $9,000 received from

Thomas on November 7, 2001. She did so without authorization and with no

written fee agreement. RR 6-8. Elliott initially admitted that she had not provided

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Thomas with a “Bar approved Contingency Fee Agreement.” HT 37. Elliott later

produced a multitude of versions of purported fee agreements (HT 4, 9, 12, 17, 37,

39) and attempted to use the documents to justify her breach of trust.

In an attempt to justify her use of client funds, Elliott claimed she

represented Thomas on other matters and that Thomas verbally authorized the

deposit of funds into the operating account. HT 39, TR 55-56, 1961-62, SH 124.

Thomas denied giving any such authorization. TR 82-88, HT 40. The invoices she

presented to justify the fees were dated more than eight months after she placed the

$9,000 into her operating account. HT 39 at NET41, NET42. Although Elliott

provided these invoices to The Florida Bar (HT 37, 39), Thomas denied ever

receiving any such invoices and denied having any such agreement. HT 39, TR

167-76, 474-76. The Referee determined that Elliott’s defense was unfounded and

stated: “All of the fees paid to Respondent were paid in connection with the

doomed whistleblower’s lawsuit and to it alone.” RR 6. Elliott failed to provide

Thomas with an accounting of the funds he paid her. TR 149-50, 237-38, 1953-54.

Elliott also failed to provide Thomas with his file after the representation ended,

despite several requests. HT 33; TR 153, 237-38, 241-42, 246.

The Referee recommended that Elliott be found guilty of violating the

following Rules Regulating The Florida Bar: 4-1.1 (Competence); 4-1.5(a)

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(Illegal, Prohibited, or Clearly Excessive Fees); 4-1.15(a) (Clients' and Third Party

Funds to be Held in Trust); 4-1.15(b) (Notice of Receipt of Trust Funds; Delivery

and Accounting); 4-1.16(d) (Protection of Client's Interest); 4-8.4(a) (violate or

attempt to violate the Rules of Professional Conduct); 5-1.1(a) (Nature of Money

or Property Entrusted to Attorney); and 5-1.1(e) (Notice of Receipt of Trust Funds;

Delivery; Accounting).

COUNT II: Count II of the Complaint is based on the allegations of Lucille

Foster. Elliott and Foster attended the same church and participated in music

programs together. Foster hired Elliott, in part, because of the special trust she

afforded Elliott as a member of her church. TR 719-21, 820-21, SH 12. Foster

hired Elliott to represent her in a personal injury claim against Orkin, a pest control

company, for alleged excessive treatment of her home with pesticides.

Foster paid Elliott $2,600 on July 9, 2002. RR 9; LF 1, 2, 3. Foster signed a

one-page fee agreement which provided for a flat fee of $2,500 for research and a

$100 consultation fee. The agreement also provided for a $10,000 retainer for

“suit, + expenses + % of recovery.” No contingent fee percentage was stated and

no statement of client’s rights was provided. RR 9, LF 1, TR 735, 886.

In August 2002, Elliott told Foster that the money had been used up and that

she needed more money to proceed with the case. Foster paid Elliott $10,000

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more. TR 729-30. Elliott also told Foster that the case would require an expert

witness at a cost of as much as $7,000. TR 725-26. Based on these

representations, Foster gave Elliott an additional $10,000 on August 8, 2002.

Elliott requested 2 checks of $5,000 each. TR 727-29. She deposited $5,000 into

her trust account and $5,000 into her operating account. It was only after Elliott

had received the additional $10,000 that a written contingent fee agreement was

presented and signed. A statement of client’s rights was not attached to this fee

agreement. RR 9, LF 7, TR 735. Elliott filed suit against Orkin on behalf of Foster

on October 24, 2002. LF 8.

In January 2003, during a discussion at church, Elliott disclosed to Foster

that she had a problem with The Florida Bar and was facing possible suspension.

A month later, Elliott told Foster her problems with the Bar had been cleared up.

RR 10, TR 738-39, 865-67. The Report of Referee recommending a six-month

suspension was issued November 15, 2002. This Court approved the Report of

Referee by Order dated June 26, 2003, and Elliott's suspension was effective July

25, 2003. LF 10, 14.

Elliott disbursed $2,800 from trust to herself as fees on February 7, 2003

without Foster's knowledge or authorization. RR 12, LF 30A, TR 747-48. Elliott

made another unauthorized disbursement of $1,000 from trust to herself on May

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13, 2003. RR 12, LF 30A, TR 747-48. On June 25, 2003, Elliott charged Foster

another $2,500 for mediation expenses. RR 9-10; LF 13, 25; TR 749-50. A

mediation was held on July 18, 2003, just days before her suspension was to take

effect. Elliott deposited the $2,500 directly into her personal checking account

without Foster's knowledge or authorization. RR 10, TR 708, 716-17, 950-53.

Elliott did not inform Foster about her suspension until the mediation was

concluded. LF 25, TR 756-59, SH 17-19. After the mediation, Foster asked for an

accounting. RR 10, LF 25, TR 755-65. Elliott told Foster that an itemization of

expenses was not available at that time and that she would send it later. Foster

never received an accounting as promised. RR 11, LF 25, TR 755-65. Foster did

receive a check in the amount of $210.55 dated July 24, 2003. LF 18, TR 755-65.

It was only after the grievance committee found probable cause for further

disciplinary proceedings on January 27, 2006, that Elliott finally acknowledged

receipt of $2,500 and sent Foster a check in the amount of $2,569.58 on April 21,

2006. RR 10, LF 29. Elliott claimed that she was unaware that the $2,500 check

had been deposited into her personal checking account. TR 950-53.

The Referee recommended that Elliott be found guilty of violating the

following Rules Regulating The Florida Bar: 4-1.4(a) (Informing Client of Status

of Representation); 4-1.4(b)(Duty to Explain Matters to Client); 4-1.5(f)

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(Contingent Fees); 4-1.16(d) (Protection of Client's Interests); 4-8.4(a) (violate or

attempt to violate the Rules of Professional Conduct); 4-8.4(c) (conduct involving

dishonesty, fraud, deceit, or misrepresentation); 5-1.1(a) (Nature of Money or

Property Entrusted to Attorney); 5-1.1(b) (Application of Trust Funds or Property

to Specific Purpose); and 5-1.1(e) (Notice of Receipt of Trust Funds; Delivery;

Accounting). RR 11-13. The Referee recommended restitution to Foster in the

amount of $3,800. RR2 2.

COUNT III: This Count is based on the complaint of Glenn Green. Green

was severely disabled with degenerative disk disease, partial paralysis, and

depression. TR 1016-17, 1063-64, 1303-04. During the representation by Elliott,

he wrote in an e-mail to her that he was “in an almost constant state of mental

fogginess.” GG 10a at NEG0207, GG 39 at 211-12, TR 1313-16.

Elliott was hired to represent Green in three separate matters related to his

disability: (1) an ADA claim against his employer, Gulf Coast Center, involving a

federal cause of action and related EEOC filings; (2) a state disability action

involving retirement disability benefits; and. (3) a claim for Federal Social Security

disability benefits. RR 13-14.

The first time Green paid legal fees to Elliott was on July 14, 2000. GG1.

Over the course of representation, which ended when Elliott’s suspension became

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effective on July 25, 2003, Green paid Elliott between $22,751.45 and $24,251.45

in legal fees. The Referee could not determine a precise figure because Elliott's

records "are so incomplete in almost every material respect.” RR 14. The Referee

found that Elliott's records did "not clearly reflect whatever work she did to earn

any of the fees she charged." RR 14.

Elliott took $15,000 from Green on January 29, 2002 for the claim against

Gulf Coast Center without a clear fee agreement in place. RR 15. Green believed

this money was needed for costs attendant to filing a federal lawsuit. RR18.

Elliott then disbursed $10,000 in fees to herself from her trust account on February

8, 2002 without Green's knowledge or authorization. RR 15-16, GG 31A, TR

1054-57, 1128-29, 1133-36. Elliott also received $1,500 from proceeds of the sale

of real property owned by Green. The HUD settlement statement described the

payment as “Attorney’s Consultant Fee.” GG 6, GG 6A. Green and his wife both

testified that Elliott did no work on this matter and that this disbursement was

made without their authorization. TR 1041-47, 1308-11. There was no fee

agreement concerning this matter. RR 16.

The first fee agreement entered into by Green and Elliott was dated October

19, 2000. GG 3. This one-page agreement provided for representation in “civil

matter against Gulf Coast Center.” It provided for a $5,000 retainer and $1,000 for

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costs. It also provided for a contingency in the Social Security disability matter.

The agreement further stated: “If and when it becomes apparent that [certain fees

and expenses described in the contract] will be expended under this agreement, an

additional sum to be set by the attorney will be deposited in the firm’s trust account

as requested by the attorney.” GG 3, RR 14-15. The second fee agreement, dated

February 28, 2001 provided for a 30 percent contingency in the State disability

matter. Green paid Elliott $3,651.45 in regard to this matter. GG 18, 18A, 18B, 19.

The third fee agreement was an undated contingent fee contract between

Elliott and Green and his wife, Joanna Dye Green. Joanna had not previously

signed any agreement with Elliott despite the fact that the federal lawsuit had been

amended on April 17, 2003 to add her as a plaintiff. GG 10B, 35, 36. The Referee

accepted the testimony of the Greens that Elliott approached them in a parking lot

within a month after her suspension became effective on July 26, 2003. TR 1115-

19, 1316-18. Elliott persuaded the Greens to sign the agreement because “she

needed the document for her file.” RR 15. Elliott also told Green that he needed

to sign the undated fee agreement because “the copy had been lost and this one was

being used to replace it.” TR 1124-25. Elliott denied all the events surrounding

the undated fee agreement but never explained why it was undated or when it was

signed. GG 39 at 185-87, 192; TR 1010-11, 1015.

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Green asked Elliott for an accounting of funds paid to her on several

occasions. RR 16, GG 25, TR 1114, 1125-39. Elliott never provided a full

accounting to Green. RR 14, 16; GG 25; TR 1125-39. At the end of the

representation, Green expected to receive the $15,000 he had paid Elliott for the

costs of pursuing the Gulf Coast federal lawsuit; however, Elliott returned only

$3,300. RR 18, TR 1129.

The Referee recommended that Elliott be found guilty of violating the

following Rules Regulating The Florida Bar: 4-1.5(e) (Duty to Communicate

Basis or Rate of Fee to Client); 4-1.5(f) (Contingent Fees); 5-1.1(e) (Notice of

Receipt of Trust Funds; Delivery, Accounting); and 4-8.4(a) (violate or attempt to

violate the Rules of Professional Conduct). RR 17-18. The Referee recommended

restitution in the amount of $11,500. RR2

PRIOR DISCIPLINE

SC02-1203: TFB Nos.: 2001-10,224(20D), 2001-10,577(20D): Elliott

received a six-month suspension effective July 25, 2003, followed by two years

probation upon reinstatement. She plead to a misdemeanor offense that involved

forging documents using the notary stamp of another. She then presented the

forged documents to the court in a pending divorce proceeding. Elliott sent

threatening e-mails to the opposing party in another case who informed the court

14

about the forgery, and also threatened to file criminal charges against the notary

whose stamp she had used. The threat to the notary related to the obligation of a

notary to safeguard a notary stamp. Elliott also filed a frivolous bar complaint

against the assistant state attorney who prosecuted her for illegal use of the notary

stamp. In addition, Elliott failed to comply with trust accounting rules by failing to

keep accurate records and commingling funds. The Referee stated Elliott engaged

in "a pattern of behavior. . . [of] lashing out at those critical of her." There was no

actual loss to any client. LF 10, 14, 38.

SC03-2071TFB File No. 2003-10,357 (20A): Elliott received a 75-day

suspension effective September 29, 2004. Elliott entered into a stipulation with

opposing counsel where it was agreed that Elliott would hold $20,360.55 in trust

until further order of the court. The stipulation was approved by court order. The

funds were marital property subject to equitable distribution. Without the court’s

approval or knowledge, Elliott disbursed $4,500 of the funds to herself as payment

of her fees in two separate disbursements of $3,000 on August 1, 2001, and $1,500

on September 15, 2001. Elliott also failed to prepare monthly reconciliations of

her trust account. There was no harm to the client. LF 39, SH 35.

SC04-650, TFB File No. 2004-11,461 (20A): Elliott was reinstated effective

April 19, 2005, with two years probation. LF 40, SH 35.

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SUMMARY OF THE ARGUMENT

Elliott has demonstrated a complete unfitness for the practice of law, and an

extraordinary lack of respect for her clients, the profession, and the disciplinary

process. She was found guilty of misusing client funds in three separate cases.

Elliott took money from vulnerable clients that was to be held in trust, disbursed

funds to herself without her clients' knowledge or consent, and concealed her

misconduct by refusing to provide an accounting of the funds. Elliott not only

misused client funds and deceived her clients, she also provided grossly

incompetent representation, charged excessive fees, violated a prior disciplinary

order, and failed to provide her clients with proper contingency fee agreements.

Her disciplinary record includes two previous suspensions for dishonest conduct,

including a six-month suspension for notary fraud and a 75-day suspension for

disbursing escrow funds to herself without authorization. Given Elliott's

cumulative pattern of misconduct, the Referee's recommended suspension of two

years is without a reasonable basis in the existing case law or the Florida Standards

for Imposing Lawyer Sanctions.

In addition to the numerous violations found by the Referee, Elliott showed

a complete lack of respect for the disciplinary process. She continued her pattern

of lashing out at those critical of her, as was observed by the referee in Elliott's first

16

disciplinary case. In this case, Elliott claimed that essentially every adverse

witness had unclean hands, was untruthful, and had a grudge against her.

She failed to produce subpoenaed documents, failed to respond to requests for

information at all levels of the proceedings, made misrepresentations to the Bar,

and created after-the-fact documents and evidence in an effort to support her

defense. At the final hearing, Elliott falsely accused the Bar of tampering with

evidence. In her closing argument, Elliott explained that she believed she had no

obligation to provide information to The Florida Bar or participate in the

investigation.

The Referee made no findings as to the applicable Standards for Imposing

Lawyer Sanctions, except for aggravating and mitigating factors. The Referee also

failed to make any findings regarding additional aggravating factors requested by

the Bar. The Bar submits that there is ample record evidence to support the

applicability of these aggravating factors.

Based on the seriousness of Elliott's violations, her cumulative misconduct,

and the aggravating factors, the two-year suspension recommended by the Referee

is an insufficient sanction and is not consistent with the case law or the Florida

Standards for Imposing Lawyer Sanctions. The Bar requests this Court to impose

the sanction of permanent disbarment.

17

STANDARD OF REVIEW

This Court's scope of review on recommendations for discipline is broader

than that afforded to a referee's findings of fact. Florida Bar v. Langston, 540

So.2d 118, 120-21 (Fla. 1989). Although a referee's recommended discipline is

persuasive, this Court does not pay the same deference to this recommendation as

it does to the guilt recommendation because this Court has the ultimate

responsibility to determine the appropriate sanction. Florida Bar v. Temmer, 753

So.2d 555, 558 (Fla. 1999). However, this Court will generally not second-guess

the referee's recommended discipline as long as it has a reasonable basis in existing

caselaw and the Florida Standards for Imposing Lawyer Sanctions. Id.

A referee's findings of mitigation and aggravation carry a presumption of

correctness and will be upheld unless clearly erroneous or without support in the

record. A referee's failure to find that an aggravating factor or mitigating factor

applies is due the same deference. Florida Bar v. Germain, 957 So.2d 613, 621

(Fla. 2007).

18

ARGUMENT

I. THE REFEREE'S RECOMMENDATION OF A TWO-YEAR SUSPENSION DOES NOT HAVE A REASONABLE BASIS IN EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS.

The Referee recommended that Elliott be suspended from the practice of law

for two years. Given the Referee's findings of fact and conclusions of guilt, the

Bar suggests that permanent disbarment is a more appropriate sanction. Although

the Referee made extensive factual findings, the Referee made no findings as to the

applicability of Florida's Standards for Imposing Lawyer Sanctions, except for

aggravation and mitigation. This Court has held that it will not second-guess a

referee's recommended discipline so long as it has a reasonable basis in existing

case law and the Florida Standards for Imposing Lawyer Sanctions. The Referee's

recommendation of a two-year suspension is not supported by the case law or the

Standards.

In its Memorandum of Law as to Sanctions, The Florida Bar outlined a

number of Standards that apply to Elliott's misconduct. These Standards, when

applied to the Referee's findings, support the sanction of disbarment. When the

overall conduct of Elliott is considered, in conjunction with the aggravating

factors, a sanction of permanent disbarment is warranted.

19

The Florida Standards for Imposing Lawyer Sanctions provide a format for

Bar counsel, Referees, and the Supreme Court to determine the appropriate

sanction in attorney disciplinary matters. Standard 3.0 directs the court to consider

the following factors in imposing a sanction:

(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 circumstances. The Bar suggests that the following specific Standards apply to the Referee's

findings and conclusions and support disbarment as the appropriate discipline.

Standard 4.1, Failure to Preserve Client’s Property, provides that absent

aggravating or mitigating circumstances, and upon application of the factors set out

in 3.0, the following sanctions are generally appropriate in cases involving the

failure to preserve client property:

4.11 Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury.

In all three counts, the Referee found that Elliott misused client funds by

paying herself fees from trust, or failing to deposit fees into trust, without

authorization. In Count I, the Referee found that Elliott should have deposited

Harold Thomas's $9,000 in trust but instead deposited the funds into her operating

account. Elliott paid this money to herself “without Harold Thomas’ knowledge or

20

consent.” RR 8. The Referee found this conduct violated Rules 4-1.15(a) (Clients'

and Third Party Funds to be Held in Trust) and 5-1.1(a) (Nature of Money or

Property Entrusted to Attorney). RR 8.

In Count II, the Referee found that Elliott improperly paid herself $3,800 out

of Lucille Foster's trust funds without earning it. Additionally, Elliott deposited

$2,500 of Foster's funds, intended to pay the costs of mediation, into her personal

checking account when it should have been deposited into trust. The Referee

found this conduct violated Rules 5-1.1(a) (Nature of Money or Property Entrusted

to Attorney) and 5-1.1(b) (Application of Trust Funds or Property to Specific

Purpose). The Referee recommended restitution in the amount of $3,800.

In Count III, the Referee found that Elliott transferred $10,000 out of

Green's trust account as earned fees without his knowledge or consent. The Referee

found this conduct violated Rule 5-1.1(e) (Notice of Receipt of Trust Funds;

Delivery, Accounting). Additionally, the Referee recommended restitution in the

amount of $11,500.

The presumptive penalty for the misuse of client funds is disbarment. See

Florida Bar v. Travis, 765 So.2d 689 (Fla. 2000); Florida Bar v. Puente, 658 So.2d

65 (Fla. 1995).

Standard 4.5, Lack of Competence, applies to cases involving failure to

21

provide competent representation to a client, and provides that absent aggravating

or mitigating circumstances:

4.51 Disbarment is appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.

In Count I, the Referee found that Elliott violated Rule 4-1.1 by failing to

provide competent representation to Harold Thomas. The Referee stated that

Elliott

profoundly mishandled the case. She did not know what the statute of limitations was in Mr. Thomas’ case. Not only did she file the original lawsuit ten months too late, it was filed under the wrong statute. Giving Respondent the benefit of every doubt on the fake document issue, she mistakenly thought its filing as part of the First Amended Complaint would rescue the lawsuit from the fatal statute of limitations bar. It turns out she was not even close on the law, and to make matters worse, Respondent ended up charging Harold Thomas a total of $14,672 in fees, with all but $2,500 being paid to her after the statute of limitations had run.

RR 5- 6. The Referee also found that Elliott “did not possess the necessary legal

knowledge or skill nor did she thoroughly prepare in a way necessary to represent

him competently.” RR 7.

Not only did Elliott injure her client by collecting $12,172 in fees after the

limitations period had expired, her incompetence caused Thomas's cause of action

to be forever barred. Her lack of competence is magnified by her attempts to

22

disguise her incompetence. Elliott's attempts to cover her incompetence are

discussed infra, in relation to aggravating factor 9.22(f) (submission of false

evidence, false statements, or other deceptive practices during the disciplinary

process).

Although the comments to Standard 4.5 caution that disbarment should

rarely be imposed for a single instance of incompetence, Elliott's representation of

Harold Thomas involved multiple acts of incompetence. Not only did Elliott miss

the limitations period and file under the wrong statute, she wrongly believed that

the 180-day notice period of Florida Tort Claims Act applied, and that the Florida

Commission on Human Relations (FCHR) was required to be given notice. She

also persisted in pursuing a cause of action and collecting fees after she had been

warned of these defects by opposing counsel. RR 5-6; HT 11, 20, 21, 23, 28, 42.

Elliott continued to assert throughout the disciplinary process that the lawsuit was

timely filed and that notice to FCHR was required. HT 42, HT 51 at 28-32, 35-37,

72-75; TR 2009-10.

Despite these acts of incompetence, Elliott professed to be experienced in

employment law and whistleblower cases. HT 46 at 50-66, TR 1936-37. Elliott’s

incompetence, although different in scope, is not unlike that of the respondent in

Florida Bar v. Springer, 873 So.2d 317 (Fla. 2004). As Justice Lewis stated in his

23

concurring opinion: “[the respondent] did more than just venture ill-prepared into

a new area of the law. He simply totally failed to perform, or incompetently

performed the basic tasks of his profession….” Id. at 322, n.1. Like Springer,

Elliott exhibited a lack of understanding of the most fundamental legal procedures

and obligations, resulting in serious injury to her client. Pursuant to Standard 4.5,

such incompetence warrants disbarment.

Standard 4.6, Lack of Candor, applies to cases where the lawyer engages in

fraud, deceit, or misrepresentation directed toward a client, and provides that

absent aggravating or mitigating circumstances:

4.61 Disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client.

In Count I, the Referee found that Elliott engaged in conduct involving

dishonesty, fraud, deceit, or misrepresentation in violation of Rule 4-8.4(c). RR

12. This finding was based in part on Elliott's lack of candor with Lucille Foster

concerning Elliott's problems with The Florida Bar. RR 12. On November 15,

2002, a Report of Referee was issued in a pending disciplinary proceeding

recommending that Elliott receive a six-month suspension. In January 2003,

Elliott disclosed to Foster that she had a problem with The Florida Bar and faced

possible suspension. The next month, however, Elliott falsely told Foster that her

24

problems with the Bar had been cleared up. RR 10, TR 738-39, 865-67. This

Court issued an Order approving the Report of Referee on June 26, 2003, and

Elliott's suspension was effective July 25, 2003. It was only after Foster's

mediation concluded on July 18, 2003 that Elliott informed Foster of her

suspension. LF 25, TR 755-65.

The Rule 4-8.4(c) violation was also based on Elliott's disbursement of

$3,800 from Foster's trust account to herself without an accounting that Foster had

requested, and without having earned the fee. RR 12. This unauthorized

disbursement of client funds to herself was intentional and of obvious benefit to

Elliott. Her lack of candor regarding the disciplinary process was intended to keep

Foster as a client and to allow Elliott to collect additional funds. Moreover, in the

event of settlement at mediation, prior to suspension, Elliott would have been able

to collect a full contingency fee.

Knowingly deceiving a client with intent to benefit the lawyer creates a

presumption of disbarment pursuant to Standard 4.61. See Florida Bar v. Puente,

658 So.2d 65, 69 (Fla. 1995).

Standard 5.1, Failure to Maintain Personal Integrity, applies to cases

involving dishonest, fraud, deceit, or misrepresentation, and provides that, absent

aggravating or mitigating circumstances:

25

5.11(f) Disbarment is appropriate when a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.

This Standard applies to the same acts of dishonesty and deceit that support

the applicability of Standard 4.61, supra. A violation of Rule 4-8.4(c) can support a

violation of this Standard. See Florida Bar v. Orta, 689 So.2d 270 (Fla. 1977).

Standard 6.1, False Statements, Fraud, and Misrepresentation applies to

cases involving conduct that is prejudicial to the administration of justice or that

involves dishonesty, fraud, deceit, or misrepresentation to a court, and provides

that:

6.11(a) Disbarment is appropriate when a lawyer, with intent to deceive the court, knowingly makes a false statement or submits a false document.

Although the Referee did not make a specific finding that Elliott attempted

to deceive the court, the Bar suggests that the record supports a finding of

aggravating factor 9.22(f) (submission of false evidence, false statements, or other

deceptive practices during the disciplinary process). This evidence is discussed

infra at Section II-C, in relation to aggravating factor 9.22(f). Intentional

deception of a court can support disbarment pursuant to Standard 6.11. See

Florida Bar v. Puente, 658 So.2d 65, 69 (Fla. 1995).

Standard 7.0, Violations of Other Duties Owed as a Professional, provides

that the following sanction is appropriate in cases involving other duties owed as a

26

professional:

7.1 Disbarment is appropriate when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

Standard 7.0 provides for sanctions that are “generally appropriate in cases

involving false or misleading communication about the lawyer or the lawyer’s

services . . . unreasonable or improper fees . . . " This Standard applies to the

same conduct that resulted in the Referee's finding that Elliott violated Rule 4-

8.4(c) (dishonesty, fraud, deceit, or misrepresentation). See discussion of Standard

4.61, supra. A violation of Rule 4-8.4(c) can support a violation of this Standard.

See Florida Bar v. Martinez-Genova, 959 So.2d 241 (Fla. 2007).

Additionally, the finding by the Referee that Elliott violated Rule 4-1.5(a) by

collecting $12,172 in clearly excessive fees, supports the application of this

Standard. Extracting clearly excessive fees warrants disbarment. See Florida Bar

v. Della-Donna, 583 So.2d 307 (Fla. 1989).

Standard 8.0, Prior Discipline Orders, applies in cases involving prior

discipline and provides that:

8.1(a) Disbarment is appropriate when a lawyer intentionally violates the term of a prior disciplinary order and such violation causes injury to a client, the public, the legal system, or the profession.

In Count III, Elliott violated the terms of her suspension by having Green

27

and his wife, Joanna Dye Green, sign an undated contingent fee agreement while

she was suspended. Green had previously signed only a one-page retainer

agreement. GG 3. Joanna Dye Green had not previously signed any fee agreement

with Elliott despite the fact that the federal lawsuit had been amended on April 17,

2003 to add her as a plaintiff. GG 10B, GG 35, GG 36.

The Referee found that: “Another written fee agreement between the parties

is fundamentally flawed. It is undated, but the evidence clearly and convincingly

establishes that it was executed sometime after Respondent had been suspended

from the practice of law, and at least a year after she had been paid all but

$3,651.45 of the $22,000 plus fees charged to Mr. Green." RR 15. The Referee

found that, within about a month after Elliott's suspension became effective, she

approached the Greens in the parking lot of the attorney who had inherited many of

Elliott’s cases following her suspension. Elliott produced a document entitled

“Contingent Fee Contract” and had the Greens sign it, telling them she needed the

document for her file. RR 15, GG 10B, GG 35, GG 36, TR 1115-19, 1316-18.

Elliott also told Green that he needed to sign the undated fee agreement because

“the copy had been lost and this one was being used to replace it.” TR 1124-25.

This conduct constitutes a violation of the suspension order and can support

disbarment. See Florida Bar v. Winter, 549 So.2d 188 (Fla. 1989). The

28

surreptitious nature of the conduct supports an intentional and deceptive motive on

the part of Elliott. Elliott herself stated she “will not be able to communicate with

you [clients], for that would constitute a violation of the Court’s order." GG 15a.

Elliott acknowledged it would have been inappropriate for her to have this fee

agreement signed during the term of her suspension. GG 39 at 215, TR 1010-15.

Entering into a fee agreement constitutes the practice of law. Chandris v.

Yanakakis, 668 So.2d 180 (Fla. 1996).

Although the Bar did not charge Elliott with contempt for violation of the

suspension order, this conduct was encompassed by the allegations in the Bar's

Complaint. See Complaint, paras. 116 and 117. Although not specifically charged

as a rule violation, this conduct may be considered as an aggravating factor in

assessing the appropriate discipline. See Florida Bar v. Batista, 846 So.2d 479,

484 (Fla. 2003).

The foregoing Standards support disbarment as the appropriate sanction.

Elliott's misconduct includes misuse of client funds, gross incompetence, deceit,

and violation of a suspension order. Any one of these acts, standing alone creates a

presumption that disbarment is the appropriate penalty. When Elliott's misconduct

in total is considered together with her disciplinary history, and the additional

aggravating factors, the Bar submits that permanent disbarment is warranted. The

29

aggravating factors are discussed in the following Section.

II. THE REFEREE ERRED IN FAILING TO FIND ADDITIONAL AGGRAVATING FACTORS THAT ARE SUPPORTED BY THE RECORD AND THAT SUPPORT A SANCTION OF PERMANENT DISBARMENT.

Almost as significant as the findings made by the Referee were the absence

of findings made in relation to aggravating conduct. The Referee found the

following aggravating factors applicable to Elliott's misconduct: prior disciplinary

offenses, a pattern of misconduct, and multiple offenses. The Referee found one

mitigating factor: good character.

The Florida Bar requested, in a Memorandum of Law for Sanctions and at

the Sanctions Hearing, that the Referee find the following additional aggravating

factors:

9.22 (b) dishonest or selfish motive; 9.22 (e) bad faith obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the disciplinary agency; 9.22 (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; 9.22 (h) vulnerability of victim; 9.22 (j) indifference to making restitution.

The Referee failed to make any findings with respect to these aggravating

30

factors; nor did the Report of Referee contain any comment or finding in regard to

these additional requested factors. The Bar submits that the factual findings and

the evidence in the record support the following additional aggravating factors.

A. The Referee erred in failing to find aggravating factor Standard 9.22(b), dishonest or selfish motive. In all three counts, the Referee found that Elliott misused client funds by

either failing to deposit funds in trust, or by disbursing funds out of trust to herself

without the knowledge or consent of her clients. The Referee also found that

Elliott failed to provide an accounting for funds received from her clients, despite

their requests. The Bar argued that this refusal to provide an accounting was done

with the intent to hide her theft of funds from her clients. SH 94-101. The record

supports a finding that Elliott acted with a dishonest or selfish motive in all three

cases.

The Referee's finding that Elliott violated Rule 4-8.4(c) (conduct involving

dishonesty, fraud, deceit, or misrepresentation) by her conduct in the Foster case

was based on Elliott's disbursement of $3,800 from Foster's trust account to herself

without a requested accounting and without having been earned. RR 12. This

finding was also based on the fact that Elliott deceived Foster about her problems

with The Florida Bar. Elliott falsely represented that her problems with the Bar

were over, when in fact the Referee had issued a report recommending a six-month

31

suspension, pending approval by this Court.

Additional record evidence supports the aggravating factor of a dishonest or

selfish motive. Mediation in Foster's case was initially scheduled for March 2003.

Foster, a school teacher, wished to continue the mediation until the summer break.

Foster testified Elliott reacted to this request in a “mean,” “nasty,” and “ugly”

manner. TR 739-40. Elliott told Foster she could not ask for a continuance

without proof of severe illness and a request from a physician. LF 12, TR 739-45,

1343-61. Although Elliott eventually filed a motion to continue mediation (LF

11), The Florida Bar argued that Elliott intended to discourage the request for

continuance because of a desire to settle the case prior to her suspension becoming

effective. TR 1852-53, SH 107.

Elliott's selfish motive is again highlighted by an incident that occurred

during her representation of Glenn Green. On the Greens' wedding day, Elliott

took personal items from the Greens' home as payment for legal fees. Elliott

removed some collectible glassware and a picture, telling the Greens that these

items would be put “on account.” Elliott never assigned a dollar value to the items

she took. Joanna Green said she allowed this to happen because she “trusted”

Elliott. There was no writing regarding this transaction. TR 1294-96, 1320-21,

1336-37.

32

B. The Referee erred in failing to find in aggravation that Elliott engaged in bad faith obstruction of the disciplinary process. The Referee made no finding in relation to aggravating factor Standard

9.22(e). Although Elliott was not charged with failing to provide requested

information to The Florida Bar, she engaged in a pattern of being non-responsive

to requests for information and documents during the Bar's investigation of each

complaint. The full scope of this conduct did not become known until the final

hearing. In closing argument, Elliott stated: “The Florida Bar knows that I don’t

even have to participate in the investigation. But he [counsel for The Florida Bar]

tells the Court that I didn’t want to do anything, I didn’t participate, I didn’t gave

documents, I gave half documents. I didn’t have to.” TR 2106. This statement

articulates Elliott's refusal to cooperate with the Bar's investigation.

In all three cases, Elliott produced documents at the final hearing that had

never been previously provided to The Florida Bar or seen by her clients. The

failure to provide requested documentation during the investigation facilitated what

the Bar argued was after-the-fact creation of documents used to fabricate a defense

at the final hearing. The submission of false evidence is addressed in relation to

aggravating factor 9.22(f), infra at Section II-C.

One example of Elliott's failure to produce requested documentation

occurred during the final hearing. Elliott appeared at the final hearing on June 26,

33

2007, during the cross examination of Thomas, with five boxes of documents she

admitted had not been disclosed to The Florida Bar. TR 229-33, 423-24, 513-30,

1941-42. Elliott failed to produce these documents to the Bar despite the fact the

“complete file pertaining to Harold Thomas” had been subpoenaed by the

grievance committee. HT 43, 44; TR 599-605. Elliott previously stated in answer

to interrogatories served on April 16, 2007, and attached to a motion to compel

filed by The Florida Bar on April 13, 2007, that she had provided copies of all

client files to The Florida Bar. Only four pages out of the five boxes of documents

were admitted into evidence at the final hearing. TR 234, 443-45.

During the investigation of this case, The Florida Bar asked Elliott to

account for the funds received from Lucille Foster. LF 24, 26, 29. Elliott never

responded to the Bar's request dated December 1, 2004. LF 24. The Bar made

another request for an accounting on October 11, 2005. LF 26. Elliott provided an

incomplete response, in which she denied receiving a check for $2,500 from Foster

on June 25, 2003. LF 27.

Elliott also claimed to have disbursed $3,800 of Foster's funds for work on

other matters. LF 27. Elliott falsely stated that proof of time spent on the other

matters had been previously provided to The Florida Bar. In response to a

subpoena duces tecum (LF 28 at NEF0245–NEF0246) served on Elliott, she again

34

denied receipt of the $2,500 check from Foster on June 25, 2003. LF 28 at

NEF0230.

Elliott never provided the requested accounting to The Florida Bar and

repeatedly failed to provide information necessary for an accurate accounting. LF

24, 25, 26, 27, 28; TR 757-64, 933-54, 1400-09. Foster denied ever agreeing to

hire or pay Elliott for work on other matters, and the Referee made a finding that

Foster did not authorize payment for other legal matters. RR 10, TR 766-67.

In the Green case, despite repeated requests, Elliott never provided Green

with a full accounting of the funds he had paid her. RR 16, 18; GG 25; TR 1125-

39. Green expected to receive $15,000 from Elliott at the end of the

representation, but Elliott returned only $3,300. RR 18, TR 1129.

In response to Green's Bar complaint, Elliott provided several documents

purporting to account for and justify the use of the funds. GG 25, 26. These

documents included the undated fee agreement and other documents that amounted

to an incomplete and unsubstantiated explanation and justification for the use of

the funds. TR 1434-36. The Florida Bar then requested Elliott to provide a

detailed accounting with supporting documentation. GG 27. Elliott again

responded in an incomplete manner. GG 28, 29, TR 1497-1501. Most of these

documents had not been previously provided to Green. TR 1130-39.

35

During the Bar's investigation, Elliott was asked to provide a copy of her

entire file pertaining to her representation of Green. GG 27. In response, Elliott

provided only 13 pages of documents. GG 28, TR 1385-86. At the Referee level,

the Bar again requested her to produce Green's file. Elliott responded that the file

had already been produced. See Motion to Compel Production of Documents

served on April 13, 2007. Elliott had previously produced only the documents in

exhibits GG 26 and GG 27. TR 1385-86. Elliott subsequently produced about six

inches of documents in discovery. TR 1016. During the final hearing, Elliott stated

that she had reviewed five boxes of documents containing Green's file. TR 1003-

04. These documents were never produced during the investigation or final

hearing, despite requests by the Bar. TR 1003-04.

Elliott's repeated failure to produce the requested documents demonstrates

not only a lack of cooperation but a bad faith obstruction of the disciplinary

process.

C. The Referee erred in failing to find in aggravation that Elliott submitted false evidence, false statements or other deceptive practices during the disciplinary process (Standard 9.22(f)). During the disciplinary proceedings, Elliott falsely claimed that The Florida

Bar tampered with the evidence in an attempt to prove that she created a false

document in the Thomas case. The Referee rejected Elliott's claim that the Bar

36

sent her two computer disks in discovery containing the false letter attached to the

amended complaint in the Thomas whistleblower case. See RR 3-6. The Referee

found that: “There is absolutely no evidence that any disc in question has been

manipulated, altered or tampered with by anyone connected with the Florida Bar,

Dana Gallup, Chris Lietz or Wayne Evans. In fact there is no evidence that anyone

other than Harold Thomas or Respondent is in any way responsible for the content

of the disc at issue.” RR 5.

Elliott testified at the final hearing that, as a part of discovery, The Florida

Bar sent her two computer disks containing the false documents, at least one of

which (RT1a) had been tampered with by Sandra Kay, a secretary employed by the

Bar. TR 1526-29, 1549-50, 1925-27. Elliott introduced this disk into evidence.

RT1a.

The Florida Bar produced evidence that only one disk, a copy of HT 38a,

had been provided by the Bar to Elliott. TR 1738-48. This disk was obtained by

the Bar from Dana Gallup, Thomas's malpractice lawyer. HT 38, 38a, TR 264-76,

336-40. The Referee ordered Elliott to produce evidence that she had been

provided a second disk by the Bar. TR 1549-50. Elliott produced nothing other

than the transmittal letter that referenced one disk. TR 1680-82. Elaine Gill, a

secretary for The Florida Bar, testified that only one disk was sent to Elliott--a

37

copy of HT 38a made by Chris Lietz, the Bar's computer expert. TR 1738-48.

Sandra Kay testified she had never opened or viewed HT 38a. TR 336-42, 1731-

32. Lietz testified that the disk he examined (HT 38a, HT 26) showed no evidence

of being opened or altered by Kay. TR 422.

The Florida Bar argued that the disk entered by Elliott as RT1a was a

complete fabrication and was never sent to Elliott by the Bar. TR 1526-32, 2121-

24. Elliott used RT1a to claim that Kay had tampered with the disk, and attempted

to discredit the allegation that Elliott had assisted Thomas in creating a false

document to attach to the amended complaint. TR 1923-35. Elliott also claimed

that Lietz had tampered with the disk entered into evidence by the Bar. TR 1918-

22. Elliott further claimed that Dana Gallup, Thomas's malpractice lawyer,

tampered with the disk. TR 1927. The Referee categorically rejected these

allegations of tampering. The clear and convincing evidence is that only one disk

was sent to Elliott. Her statement that she received a second tampered disk was a

blatant misrepresentation. Elliott's false accusations before the Referee are further

evidence of her dishonesty and determination to obstruct the disciplinary

proceedings.

Elliott took a variety of inherently contradictory positions regarding her

handling of the Thomas case. For example, in her deposition in the malpractice

38

case, taken in May 2004, Elliott claimed that she filed Thomas' claim under the

private whistleblower statute “because in my research I could not classify the

Sheriff’s Office as public….I decided to pursue under the private statute.” HT 46 at

112-13, 116-17. See also HT 42, TR 568-72. Later, during the course of the Bar's

investigation of the Thomas complaint, Elliott changed her story to claim that she

always knew the public whistleblower act applied and that her mistake was caused

by poor editing. TR 39-41, 1943-45; HT 51 at 25-26.

On June 25, 2003 Elliott charged Foster another $2,500 for mediation

expenses. LF 13, LF 25; TR 748-51. She deposited this $2,500 directly into her

personal checking account without Foster's knowledge or authorization. TR 708,

716-17, 953. Elliott initially denied receipt of the $2,500. LF 27, 28. Elliott later

claimed, however, that she was unaware that the check had been deposited into her

personal checking account. TR 952-53.

In support of her defense that she was unaware the check had been deposited

into her personal account, Elliott introduced into evidence a purported letter from

herself to Joy Ann Demas, “Assistant Staff Counsel for the Florida Bar at the

Tampa Branch." RF 20. In the letter, dated July 21, 2005, Elliott requests a copy

of the $2,500 check and states, “I have no records that Ms. Foster gave me such a

check.” Elliott argued that if only The Florida Bar had sent her a copy of the

39

alleged check, she could have discovered that she had, in fact, received it and

deposited it into her personal checking account. TR 952-53.

The Florida Bar argued at final hearing that this purported letter was created

after-the-fact by Elliott in an effort to support her defense. TR 1845-50, 2152-53,

SH 107-109. Sandra Kay, the Bar secretary who maintained this file in The

Florida Bar's Tampa Branch, testified at the final hearing that the July 21, 2005

letter was not received by the Bar, and Demas had not been assigned to the case

until September 2005. Additionally, the case was not even assigned to the Tampa

Branch of The Florida Bar until September 2005. Prior to that date, the case had

been assigned to the Miami Branch and Arlene Sankel was the responsible staff

counsel. TR 1376-86.

When Elliott was questioned about why she allegedly addressed a letter to

Demas when Demas had not yet appeared in the case and the case was assigned to

Miami, Elliott stated she had previously received correspondence from Demas in

the case. The Referee ordered Elliott to produce this correspondence. TR 1619-

23. Elliott denied being ordered to do so and failed to produce any previous

correspondence from Demas. TR 1678-80. Elliott claimed to have sent her entire

file on the Foster case to The Florida Bar during the investigation. TR 939.

The foregoing evidence supports a finding in aggravation that Elliott

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submitted false evidence and made false statements during the disciplinary process

in an attempt to defend her misconduct.

D. The Referee erred in failing to find as an aggravating factor Standard 9.22(h), the vulnerability of Elliott's victims. The record evidence shows that Elliott took advantage of her clients'

vulnerabilities in all three cases. For example, Thomas was described by Elliott as

having “no lucidity.” HT 46 at 89-90. The lawyer who represented Thomas in a

malpractice case against Elliott stated that Thomas was not sophisticated and did

not understand what had transpired during the representation by Elliott. TR 242-44.

Lucille Foster placed a special trust in Elliott because she and Elliott

attended the same church. They participated in music programs of the church.

Foster testified that she hired Elliott, in part, because of the special trust she

afforded Elliott as a member of her church. TR 719-21, 820-21, SH 12.

Mr. Green was severely disabled with degenerative disk disease and

depression. TR 1016-17, 1063-64, 1303-04. During the representation by Elliott,

he wrote in an e-mail to Elliott that he was “in an almost constant state of mental

fogginess.” GG 10a at NEG0207, GG 39 at 211-12, TR 1313-16. Despite Green's

disabilities, Elliott failed to provide him with a clear fee agreement or a complete

accounting of the over $22,000 he paid her. RR 16-17. Additionally, Elliott took

personal items from the Greens on their wedding day in payment of fees.

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These facts show that Elliott took advantage of the trust and vulnerability of

her clients with the motive of enriching herself.

E. The Referee erred in failing to find as an aggravating factor Standard 9.22(j), indifference to making restitution. Elliott demonstrated an indifference to making restitution to Lucille Foster

by failing to pay back the $3,800 she took from Foster and improperly deposited

into her personal checking account. She also demonstrated an indifference to

making restitution by waiting until 2006 to return to Foster the $2,500 she

collected for the costs of mediation and improperly deposited into her personal

checking account in 2003. In his Report, the Referee found that Elliott “had the

duty to promptly deliver $3,800 plus $2,500 to Ms. Foster and did not.” RR 13.

Elliott never made restitution of $3,800 to Foster. It was only after the

grievance committee found probable cause for further for further disciplinary

proceedings on January 27, 2006, that Elliott finally acknowledged receipt of the

$2,500 and sent Foster a check in the amount of $2,569.58 on April 21, 2006. LF

29. Elliott also failed to make restitution to Glenn Green. The Referee

recommended that Elliott be ordered to pay $3,800 restitution to Foster and

$11,500 restitution to Green. RR2.

The Bar maintains that the Referee erred in failing to find the foregoing

additional aggravating factors requested by the Bar. The record provides clear

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evidence that Elliott acted with a dishonest or selfish motive; intentionally

obstructed the disciplinary process; submitted false evidence and made false

accusations against the Bar during the disciplinary proceedings; took advantage of

vulnerable clients; and was indifferent to making restitution.

III. PERMANENT DISBARMENT IS THE APPROPRIATE SANCTION FOR ELLIOTT'S EGREGIOUS AND CUMULATIVE MISCONDUCT.

Due to the extremely serious and cumulative nature of Elliott's misconduct,

the Bar submits that permanent disbarment is the appropriate sanction. This

sanction is supported by the case law, Standards, and aggravating factors.

The Referee found three aggravating factors in this case: a pattern of

misconduct, multiple offenses, and prior disciplinary offenses, and only one

mitigating factor—evidence of good character. RR2 3-4. The Referee found

Elliott guilty of 21separate violations of the Rules Regulating The Florida Bar,

occurring in three separate client cases, and spanning a period of over two years.

In addition to the rule violations charged, the Bar discovered evidence of further

misconduct during the disciplinary investigation and prosecution, including

Elliott's violation of this Court's 2003 suspension order. Elliott engaged in

additional misconduct during the disciplinary process that supports the finding of

additional aggravating factors, as discussed supra. This Court should find that

Elliott is unworthy of practicing law and impose permanent disbarment.

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A. Disbarment is the presumptive sanction for the misuse of client trust funds. Elliott was found guilty of misusing client funds in all three cases before the

Referee. This violation alone warrants disbarment. This Court has repeatedly held

that the misuse of client funds held in trust is one of the most serious offenses a

lawyer can commit and that disbarment is presumed to be the appropriate sanction.

Florida Bar v. Travis, 765 So. 2d 689, 691 (Fla. 2000).

In Travis, the respondent was found guilty of violating Rule 5-1.1 for

writing unauthorized checks to himself from his trust fund. The referee found

extensive mitigation, including the absence of a prior disciplinary record, personal

or emotional problems, cooperation during the proceedings, 28 years of

exceptional service to the legal profession and community, and providing legal

services to the poor. Id. at 690. Many witnesses, including attorneys and judges,

testified in support of Travis's character and fitness to practice law. Id.

Nevertheless, this Court disapproved the referee's recommendation of a 91-day

suspension and disbarred Travis, stating "[t]he overwhelming majority of cases

involving the misuse of client funds have resulted in disbarment regardless of the

mitigation present." Id. at 691. This Court held that the mitigating factors in

Travis did not overcome the presumption of disbarment.

In the instant case, the Referee found only one mitigating factor, good

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character, based on the testimony of several witnesses, including a client, an

attorney, and a personal friend. RR 4. This sole mitigating factor does not

outweigh Elliott's repeated misuse of client funds and the aggravating factors found

by the Referee. As this Court stated in Travis:

Though we commend the past good works that Travis has performed, we expressly hold . . . that such good works do not overcome Travis's pattern of conduct in which he intentionally misappropriated client funds for his own use. We again expressly state for the benefit of the members of the Bar that stealing from a client, which is what the taking of trust account funds plainly is, cannot be overcome merely because the attorney has committed prior good works and has no prior disciplinary history.

Id. at 691 (citation omitted).

Unlike Travis, who had no history of prior discipline, Elliott has been

suspended by this Court twice before. Elliott's disciplinary history indicates a

pattern of cumulative misconduct.

B. Elliott's cumulative misconduct warrants permanent disbarment.

It is well established that in rendering discipline, this Court considers the

respondent's previous disciplinary history and increases the discipline where

appropriate. Florida Bar v. Bern, 425 So.2d 526, 528 (Fla. 1982). This Court

deals more harshly with cumulative misconduct than is does with isolated

misconduct. Additionally, cumulative misconduct of a similar nature should

warrant an even more severe discipline than might dissimilar conduct." Id. In

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Florida Bar v. Williams, 753 So.2d 1258, 1263 (Fla. 2000), this Court recognized

that "enhanced discipline is permissible when multiple violations occur or the

attorney has a prior history of misconduct."

Elliott's 75-day suspension in 2004 resulted from the unauthorized

disbursement to herself of $4,500 she was holding in trust in a dissolution case.

This misconduct is strikingly similar to her unauthorized taking of funds belonging

to Thomas, Foster, and Green. Although the 75-day suspension was imposed after

some of the conduct in the instant case occurred,1 this Court has held that

“cumulative misconduct can be found when the misconduct occurs near in time to

the other offenses, regardless of when discipline is imposed.” Florida Bar v.

Golden, 566 So.2d 1286, 1287 (Fla. 1990). See also Florida Bar v. Roberts, 770

So. 2d 1207, 1209 (Fla. 2000) (holding referee may consider prior disciplinary

proceeding even though conduct subject to that proceeding occurred after the

instant conduct); Florida Bar v. Karten, 829 So. 2d 883, 889 (Fla. 2002) (holding

referee could consider prior admonishment given after the conduct in the instant

case occurred).

Permanent disbarment is warranted because Elliott has failed to respond to

1 The unauthorized disbursement in SC03-2071 occurred in August and September 2001. LF 39. Harold Thomas hired Elliott to represent him in a whistleblower action on August 23, 2001. HT 4, 5.

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lesser forms of discipline. She has repeatedly misused funds belonging to her

clients. She has demonstrated a pattern of deceitful and dishonest conduct in

multiple cases involving multiple clients and numerous ethical violations. This

pattern continued during the current disciplinary proceedings.

C. Elliott's misconduct during the disciplinary proceedings demonstrates her complete unfitness for the practice of law. The testimony and evidence presented at the final hearing provide a clear

picture of Elliott. She is a lawyer who practices with a complete lack of respect for

her clients, for the legal profession, and for the disciplinary process. In these

proceedings, Elliott took the position that each and every witness that gave

detrimental testimony had "unclean hands." She attempted to portray the

allegations against her as a fabrication motivated by some common scheme to

cause her harm. In Supreme Court Case No. SC02-1203, in which she was

suspended for six months, Judge Dubensky recognized in his Report of Referee

Elliott's propensity to aggressively challenge her adversaries. LF 10. This

propensity has not changed.

To support her defense, Elliott introduced fabricated evidence at the final

hearing. See Section II-C, supra. She failed to adequately respond to repeated

requests for information throughout the disciplinary proceedings, and then

proceeded to produce boxes of documents at the final hearing without any prior

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disclosure or notice to The Florida Bar. In her closing argument, Elliott stated that

her non-responsive conduct was appropriate because she had no obligation to

provide information to The Florida Bar. TR 2106. Respondent consistently

refused to acknowledge what documents she provided to the Bar and what

documents she did not provide to the Bar.

The version of events spun by Elliott was, in essence, a general denial. It

was not only in direct conflict of the testimony of the witnesses, it was shown to be

inherently false as established by the Report of Referee finding her in violation of

the Rules Regulating The Florida Bar. An example of false evidence provided by

Elliott was her insistence in her deposition and the final hearing that filing under

the wrong statute in the Harold Thomas case was an "editing error." She claimed

to have knowledge of the correct statute. This was an incredible reversal of

testimony, directly contradicted by Elliott's deposition testimony in the malpractice

case.

Respondent charmed vulnerable clients into giving her money, supposedly

to be held in trust, and then put what she could into her own pocket. The Referee

found that she improperly took $3,800 in trust from Lucille Foster, deposited

$2,500 of Foster's funds into her personal account instead of her trust account, and

took $10,000 from Glenn Green. This was done both before and after Elliott

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testified on October 31, 2002, in a prior disciplinary proceeding, that she had taken

all necessary steps to correct her trust accounting problems and that she had not

taken money from clients. LF 38 at 60. Elliott even went so far as to pluck

antique glassware from the shelves of Glenn and Joanna Dye Green on their

wedding day as unspecified payment for legal services. This single act exemplifies

Elliott's behavior towards her clients. Knowing that Glenn Green was in "a

constant state of mental fogginess," she then had him sign an undated fee

agreement after she was suspended from the practice of law. This is a direct

violation of the Order of suspension and should be considered by this Court in

recommending the appropriate sanction. See Florida Bar v. Forrester, 916 So.2d

647 (Fla. 2005).

Permanent disbarment is appropriate where an attorney demonstrates a

complete unfitness for the practice of law. Florida Bar v. Zyne, 266 So.2d 668

(Fla. 1972). In Zyne, the respondent commingled client funds, deposited a client’s

check into his own account, and let the statute of limitations run in a case in which

there had been a previous offer to settle. Zyne had a previous six month

suspension. The referee found that Zyne was "quite incapable of ever developing

the moral character necessary to one whose business is handling the money, secrets

and affairs of others." Id. at 669. This Court approved the referee's

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recommendation of permanent disbarment for the respondent's "repeated and

completely unprofessional actions and his serious defalcations and damage to

client and to the profession." Id.

Permanent disbarment is necessary to protect the public from Elliott's

incompetent and unethical representation. In Florida Bar v. Korones, 752 So.2d

586 (Fla. 2000), this Court disbarred an attorney who misappropriated client funds

and explained the reason that misuse of client funds warrants such a severe

discipline:

The single most important concern of this Court in defining and regulating the practice of law is the protection of the public from incompetent, unethical, and irresponsible representation. The very nature of the practice of law requires that clients place their lives, their money, and their causes in the hands of their lawyers with a degree of blind trust that is paralleled in very few other economic relationships. Our primary purpose in the disciplinary process is to assure that the public can repose this trust with confidence. The direct violation of this trust by stealing a client's money, compounded by lying about it, mandates a punishment commensurate with such abuse.

Id. at 589 (emphasis added). Elliott's repeated misconduct demonstrates that she does not deserve the trust

placed in her by her clients. She took advantage of vulnerable clients by misusing

funds given to her in trust. She provided incompetent representation, charged

excessive fees, and failed to account to her clients for their funds. Elliott has

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demonstrated a pattern of misconduct resulting in multiple violations and a history

of prior discipline. The protection of the public requires that Elliott be

permanently disbarred.

CONCLUSION

The Referee's recommendation of a two-year suspension is not supported by

the relevant case law or the Florida Standards for Imposing Lawyer Sanctions.

The Referee erred in failing to find additional aggravating factors that are

supported by the record and by the Referee's factual findings. Given the egregious

and cumulative nature of Respondent's misconduct, The Florida Bar requests that

this Court impose the sanction of permanent disbarment. The Florida Bar further

requests that Respondent be ordered to pay the Bar's costs in these proceedings.

Respectfully submitted,

_____________________________ Henry Lee Paul Assistant Staff Counsel Florida Bar No. 508373 The Florida Bar 5521 W. Spruce St., Suite C-49 Tampa, Florida 33607 (813) 875-9821

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven (7) copies of this brief

have been provided by DHL Express, Waybill Number 6832858446 to The

Honorable Thomas D. Hall, Clerk, The Supreme Court of Florida, 500 South

Duval Street, Tallahassee, Florida 32399-1927; a true and correct copy by regular

U.S. Mail to Nadege Elliott, Respondent, at her record Bar address of P.O. Box

121711, Ft. Lauderdale, Florida 33312-0029 and her physical address of 1580

Sawgrass Corporate Parkway, Suite 130, Sunrise, Florida 33323-2860; by regular

U.S. mail to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 650

Apalachee Parkway, Tallahassee, Florida 32399-2300, all this _______ day of

April, 2008.

___________________________________ Henry Lee Paul Assistant Staff Counsel

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CERTIFICATION OF FONT SIZE AND STYLE CERTIFICATION OF VIRUS SCAN

Undersigned counsel does hereby certify that this brief complies with the

font standards required by the Florida Rules of Appellate Procedure for computer-

generated briefs.

___________________________________ Henry Lee Paul Assistant Staff Counsel