IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, CASE …

IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, CASE NO: SC10-1790

Complainant, v. CARLTON PIERCE, Respondent. /

RESPONDENT’S SUPPORTING BRIEF

Carlton Pierce, Esquire Carlton Pierce, P.A. P.O. Box 223723 West Palm Beach, FL 33422-3723 Ofc.: (407) 345-5258 Fax: (407) 536-4333 E-mail: [email protected] FBN: 0610879

Table of Contents

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-vii Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3 Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6 Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-67 Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Issues Presented Issue I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-24 Rule 4-8.4(d) violates the First and Fourteenth Amendments and Article I, § 4 and Rule 4-1.8(e) violates Article I, § 10. Issue II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-47 Rule 4-8.4(d) does not bar objectively reasonable statements or legal arguments criticizing the judiciary. Issue III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-58 Respondent’s due process rights were violated when he was deprived of the opportunity to be fully heard in the presentation of his defenses and when costs were taxed against him without the opportunity to be heard. Issue IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59-64 Parties are free to contract and the right is only limited by the

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justifiable needs of the public, health, safety or welfare. Issue V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64-67 Verified pleadings and affidavits are the words of the person verifying or swearing to the statements. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached

Table of Citations and Other Authorities

Cases

Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999) . . . . . . . . passim

Antonelli v. Neumann, 537 So.2d 1027 (Fla. 3d DCA 1988) . . . . . . . 30-31

Armour v. McMiller, 15 So.2d 923 (Fla. 5th DCA 2009). . . . . . . . . . 36

Arthur Andersen Llp. v. United States, 544 U.S. 696 (2005) . . . . . . . passim

Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11

Bridges v. State of California, 314 U.S. 252 (1941). . . . . . . . . . . . . . 9-10

Brock v. Brock, 690 So.2d 737 (Fla. 5th DCA 1997) . . . . . . . . . . . . . 30

Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). . . . . . . . . . . . . 42, 45

Caribbean Conserv. Corp., Inc. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So.2d 492 (Fla. 2003) . . . . . . . . . . . . . . 7

iii

Carrollwood State Bank v. Lewis, 362 So.2d 110 (Fla. 1st DCA 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Cavalier v. Ignas, 290 So.2d 20 (Fla. 1974). . . . . . . . . . . . . . . . . . . . 48, 50

Coates v. City of Cincinnati, 402 U.S. 611 (1971). . . . . . . . . . . . . . . passim

Corp. Management Advisors v. Boghos, 756 So. 2d 246 (Fla. 5th DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Crocker v. Pleasant, 778 So.2d 978 (Fla. 2001). . . . . . . . . . . . . . . . . 33

Encarnacion v. Encarnacion, 877 So.2d 960 (Fla. 5th DCA 2004). . 42

England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Florida Bar v. Brake, 767 So.2d 1163 (Fla. 2000) . . . . . . . . . . . . . . 26

Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007). . . . . . . . . . . . 26

Florida Bar v. Cohen, 908 So.2d 405 (Fla. 2005) . . . . . . . . . . . . . . . 26

Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008) . . . . . . . . . . . . . . 27

Florida Bar v. D’Ambrosio, 25 So.3d 1209 (Fla. 2009). . . . . . . . . . . 27

Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005). . . . . . . . . . . . . 27

Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000). . . . . . . . . . . . . . 27

Florida Bar v. Head, 27 So.3d 1 (Fla. 2010). . . . . . . . . . . . . . . . . . . . 27

Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006) . . . . . . . . . . . . . . 27

Florida Bar v. Nunes, 734 So.2d 393 (Fla. 1999). . . . . . . . . . . . . . . . 27

Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001) . . . . . . . . . . . . . . . . . passim

Florida Bar v. Roth, 693 So.2d 969 (Fla. 1997) . . . . . . . . . . . . . . . . . 27

iv

Florida Bar v. Schram, 668 So.2d 585 (Fla. 1996) . . . . . . . . . . . . . . 27

Florida Bar v. Simring, 612 So.2d 561 (1993). . . . . . . . . . . . . . . . . . 7

Florida Bar v. Springer, 873 So.2d 317 (Fla. 2004) . . . . . . . . . . . . . . 27-29

Florida Bar v. Varner, 992 So.2d 228 (Fla. 2008) . . . . . . . . . . . . . . . 27

Garrison v. Louisiana, 379 U.S. 64 (1964). . . . . . . . . . . . . . . . . . . . . passim

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). . . . . . . . . . . . 8-9

Greene v. Lindsey, 456 U.S. 444 (1982). . . . . . . . . . . . . . . . . . . . . . . 47, 58

Klinka v. Klinka, 959 So.2d 383 (Fla. 5th DCA 2007). . . . . . . . . . . . 34-36

Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) . . 9

Larson v. Lesser, 106 So.2d 188 (Fla. 1958) . . . . . . . . . . . . . . . . . . . passim

Livingston v. State, 441 So.2d 1083 (Fla. 1983). . . . . . . . . . . . . . . . . 33

Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). . . . . . . . . . . . . . . passim

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). . . . . . . . . . . . 25

Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004) . . . . . . . . . . . . . . passim

Resolution Trust Corp. v. Bright, 6 F.3d 336 (C.A. 5 (Tex.) 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Rosen v. Rosen, 696 So.2d 697 (Fla. 1997). . . . . . . . . . . . . . . . . . . . . 43

Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004). . . . . . . . . . . . . . 50

Ryan’s Furniture Exchange, Inc. v. McNair, 162 So. 483 (1935) . . . 48

Sanford v. Rubin, 237 So.2d 134 (Fla. 1970) . . . . . . . . . . . . . . . . . . . 28, 45

Schmitt v. State, 590 So.2d 404 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . 36

v

Schroeder v. Gebhart, 825 So.2d 442 (Fla. 5th DCA 2002). . . . . . . . 65

Siegle v. Progressive Insurance, 819 So.2d 732 (Fla. 2002) . . . . . . . 30

State v. Inciarrano, 473 So.2d 1272 (Fla. 1985). . . . . . . . . . . . . . . . . 33

State Plant Bd. v Smith, 110 So.2d 401 (Fla. 1959) . . . . . . . . . . . . . . 47, 58

Tomayko v. Thomas, 143 So.2d 227 (Fla. 3d DCA 1962) . . . . . . . . . passim

Treiman v. State ex rel. Miner, 343 So.2d 819 (Fla. 1977). . . . . . . . . 29, 32, 40

U.S. v. Calderon, 127 F.3d 1314 (C.A. 11 (Fla.) 1997) . . . . . . . . . . . 8

Wade v. Hirschman, 903 So.2d 928 (FL 2005). . . . . . . . . . . . . . . . . . 42-43

Statutes and Other Authorities

U.S. Const. Amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. Amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Art. I, § 4, Fla. Const (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Art. V, § 15, Fla. Const (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Art. I, § 9, Fla. Const (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Art. I, § 10, Fla. Const (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 57.105, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 61.075, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

§ 61.08, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

§ 61.16, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

vi

§ 636.261, Fla. Stat. (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Black’s Law Dictionary, Seventh Edition. . . . . . . . . . . . . . . . . . . . . . 64

Fla. Code Jud. Conduct Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Fla. Code Jud. Conduct Canon 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Fla. Code Jud. Conduct Canon 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

Fla. Code Jud. Conduct Canon 3B(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

Fla. Code Jud. Conduct Canon 3C(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

Fla. Fam. L. R. P. 12.490. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Fla. Fam. L. R. P. 12.490(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Fla. Fam. L. R. P. 12.490(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Fla. Jud. Qual. Commn’s Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Fla. R. App. P. 9.210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Fla. R. Jud. Admin. 2.330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40

Fla. R. Jud. Admin. 2.420(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-38

Fla. Stds. Imposing Law. Sancs. IIIA . . . . . . . . . . . . . . . . . . . . . . . . . passim

Journal of Praxis in Multicultural Education, Vol. 4 [2009]: Iss.1, Art.3, page 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Motley, Carol M. and Craig-Henderson, Kellina M., “Epithet or Endearment?”, Journal of Black Studies 37.6 (2007): 944-963. . . . 15

R. Regulating Fla. Bar 3-4.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

R. Regulating Fla. Bar 3-4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

vii

R. Regulating Fla. Bar 3-7.6(q). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

R. Regulating Fla. Bar 3-7.6(q)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

R. Regulating Fla. Bar 4-1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 46

R. Regulating Fla. Bar 4-1.8(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

R. Regulating Fla. Bar 4-8.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

R. Regulating Fla. Bar 4-8.4(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

R. Regulating Fla. Bar 4-8.4(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

R. Regulating Fla. Bar 5-1.1(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

R. Regulating Fla. Bar 5-1.1(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

R. Regulating Fla. Bar 5-1.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61-63

Random House Webster’s Unabridged Dictionary, Second Edition . . 14-15

Referee Manual Revised May 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56

Introduction

Respondent, Carlton Pierce, seeks vacation of the Report of Referee

(Report) entered on May 17, 2011 by referee James D. Langford, dismissal of the

underlying charges, and vacation of the disciplinary recommendations and taxation

of costs.

Respondent, Carlton Pierce, shall be referred to as Respondent. The

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complainant, Florida Bar, shall be referred to as bar and bar counsel. Referee

James D. Langford shall be referred to as referee. References to the: (1) Appendix

shall be made using the symbol (A-x); (2) Record shall be made using the symbol

(R-x) where x represents the tab number; (3) Transcript shall be made using the

symbol (T-x); (4) Respondent’s Composite Exhibit #1 (RC1-x); (5) Respondent’s

Composite Exhibit #2 (RC2-x); (6) Respondent’s Composite Exhibit #3 -

Transcript dated September 23, 2010 (RC3-x); (7) Respondent’s Composite

Exhibit #4 - Transcript dated October 22, 2008 (RC4-x); and, (8) Respondent’s

Composite Exhibit #5 - Transcript dated August 25, 2008 (RC5-x).

Statement of the Case

This is a Petition for Review of the Report entered by the referee on May 17, 2011 that recommended a finding of guilt for violation of R. Regulating Fla. Bar 4-1.8(e) and 4-8.4(d), punishment, and taxation of costs against Respondent.

Statement of the Facts

The bar served its Complaint on September 16, 2010 which alleged that

Respondent violated R. Regulating Fla. Bar 4-1.8(e) and 4-8.4(d). (R-1).

Respondent served his Answer and Affirmative Defenses and Motion Challenging

Sufficiency of Complaint on October 11, 2010. (R-4-5). On October 28, 2010, the

bar served its Reply to Affirmative Defenses and Response to Motion Challenging

Sufficiency of Complaint. (R-7-8). A hearing was held on Respondent’s Motion

Challenging Sufficiency of Complaint on November 19, 2010 and an order on

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same was served on November 30, 2010. (R-15). Said order treated the Motion

Challenging Sufficiency of Complaint as a Motion for a More Definite Statement

and required the bar to file an amended complaint. (R-15). The bar served its

Amended Complaint on December 3, 2010 and Respondent served his Answer and

Affirmative Defenses to same on December 10, 2010. (R-16, 18). On December

17, 2010, the bar served its Reply to Affirmative Defenses to the Amended

Complaint. (R-25). The final hearing occurred on February 23, February 25, and

March 2, 2011 where the bar and Respondent called witnesses. (T-1-531). The

sanction hearing was conducted on April 27, 2011 and, at the conclusion of the

hearing, the referee ordered bar counsel to prepare the order based on previously

made findings and circulate it to Respondent for review. (T-532-553).

On May 10, 2011, bar counsel emailed her 24 page proposed Report of

Referee, Request for Payment of Disciplinary Costs, and Statement of Costs to the

referee without a letter or explanation. (A-25-53). The referee signed and served

the proposed Report verbatim on May 17, 2011 which found Respondent guilty of

the charged offenses, recommended punishment, and taxed costs against him. (A-

1-23). The referee filed the Report the next day on May 18, 2011. (A-69). On

May 20, 2011, Respondent filed his Notice of Objection pursuant to rule 3-

7.6(q)(5) based on the Statement and Request’s failure to include a ledger, receipts,

canceled checks, and/or invoices to support the alleged costs for items A, B, and D

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and that it was impossible for the Respondent, court, or referee to determine the

reasonableness or necessity of the alleged costs without a detailed itemization of

same. (A-56-61). On May 23, 2011, the bar served an Amended Request for

Payment of Disciplinary Costs and Amended Statement of Costs which claimed a

lower amount. (A-62-65). On May 25, 2011, Respondent served his second

Notice of Objection on the same basis as his original Notice of Objection. (A-60-

65).

Summary of the Argument

The First and Fourteenth Amendments of the U.S. Constitution limit the

abridgement of the freedom of speech and preclude punishing someone for

speaking the truth. Similarly, Article I, § 4 protects speech and truthful utterances.

Although a person’s speech can be limited, there must be a clear demarcation of

the proscribed speech so that a rule or law limiting same must: (1) be specifically

tied to a government interest; (2) clearly written where common people can

understand the proscription of speech; (3) not be subject to arbitrary and capricious

application; (4) and, there must be a safe harbor for the truth. The statements made

by Respondent are protected by the First and Fourteenth amendments and Article

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1, § 4. Rules Regulating the Florida Bar 4-8.4(d) is unconstitutional because its

limitation of the freedom of speech is vague, subject to multiple interpretations,

subject to arbitrary and capricious enforcement, and fails to have a safe harbor

provision for the truth.

Florida caselaw has established the objectively reasonable basis in

circumscribing an attorney’s speech. The objectively reasonable basis is derived

from a person’s complete knowledge in reference to the issues upon which are

commented. The judiciary, like any other branch of government, is not immune

from comment or criticism. The proscription of an attorney’s speech appears to

limit statements that are known to be false or made with reckless disregard for the

truth; thus, it would appear that truthful statements or statements made with an

objectively reasonable basis are protected; however, no specific standard or

examples of a reasonable basis have been articulated in the rule, specific case, or

by the Supreme Court of Florida. Respondent’s comments are not subject to

discipline pursuant to rule 4-8.4(d) as they are bottomed on an objectively

reasonable basis. A violation of 4-8.4(d) requires the requisite mens rea that must

be demonstrated by clear and convincing evidence. Respondent is not subject to

discipline pursuant to rule 4-8.4(d) as no evidence was presented on his mens rea.

Parties are free to enter into contracts and the right to contract can be

circumscribed and limited based on the public’s health, safety, or welfare. The

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Fourteenth Amendment and Article I, § 9 and § 10 preclude the unjustified

limitation of contracts. A rule or law that limits contracts must be clear and

understood by a person of ordinary intelligence. Rule 4-8(e) is unconstitutionally

vague and unreasonably limits an attorney’s right to contract with clients and third

parties.

The Fifth and Fourteenth Amendments, Article I, § 9 prevent an unjust

taking and demand due process. Respondent’s due process rights were violated

when he was precluded from receiving an opportunity to present his case and

defenses in a meaningful fashion and when costs were taxed against him without

the opportunity to be heard on the matter prior to entry.

A referee must exercise and demonstrate impartiality and independence in

the entry of a proposed report that is drafted by one party as a failure to do so is a

violation of the Code of Judicial Conduct. Judges, magistrates, and referees are

required to remain competent as a judge, magistrate, or referee’s incompetence

prevents a party from receiving his or her due process under the law. Judges,

magistrates, and referees’ competence must meet the minimum standards

established for attorneys to be competent under the Rules Regulating the Florida

bar.

A verified pleading or affidavit signed by a party becomes that party’s

words; otherwise, attorneys would become parties to the action if they are held

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liable for any inaccurate or untruthful statements that were provided by the affiant.

Jurisdiction

This Court has jurisdiction pursuant to Article V, § 15. Respondent has raised federal claims herein and specifically reserves the right to have said claims heard in federal court and does not seek a determination of his federal claims by this Court as any reference to federal law is merely informational as to the nature of the federal claims so that the state rules, laws, and constitution can be considered in light of those claims. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415-417 (1964).

Argument

Standard of Review

The standard of review to be applied for the bar proving that an ethical

violation occurred is clear and convincing. See Florida Bar v. Simring, 612 So.2d

561, 565 (1993). A referee’s factual finding will not be overturned unless it is

clearly erroneous or lacking in evidentiary support. Id. Constitutional challenges

are subject to de novo review. See Caribbean Conserv. Corp., Inc. v. Fla. Fish &

Wildlife Conservation Comm’n, 838 So.2d 492, 500 (Fla. 2003). De novo review

is appropriate as the constitutionality of rules 4-8.4(d) and 4-1.8(e) is challenged.

Issue I

Rule 4-8.4(d) violates the First and Fourteenth Amendments and Article I, § 4 and Rule 4-1.8(e) violates Article I, § 10. The First Amendment of the United States Constitution specifically states

that “Congress shall make no law respecting the establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

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press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” U.S. Const. Amend. I. The First

Amendment was applied to the states by the Fourteenth Amendment’s “[a]ll

persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV,

§ I. Similar to the First Amendment, the Florida constitution also protects speech

where “[e]very person may speak, write and publish sentiments on all subjects but

shall be responsible for the abuse of that right. No law shall be passed to restrain

or abridge the liberty of speech or of the press.” Art. I, § 4, Fla. Const. (1968).

Further, the Florida constitution protects the impairment of contracts where no

“law impairing the obligation of contracts shall be passed.” Art. I, § 10, Fla.

Const. (1968).

To prove “knowingly” there must be a demonstration of specific intent or

mens rea. See U.S. v. Calderon, 127 F.3d 1314, 1326 (C.A. 11 (Fla.) 1997).

“‘Intent” is the conscious objective or purpose to accomplish a particular result.”

Fla. Stds. Imposing Law. Sancs. IIIA. Mens rea, at the very least, applies to the

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acts that immediately follow, if not to other subsequent elements. See Arthur

Andersen Llp. v. United States, 544 U.S. 696, 705 (2005).

The United States Supreme Court has established caselaw which states that

criticism of the court system and judiciary is not prohibited as same is protected by

the First Amendment. The test to be applied in determining the proscription of

speech is to examine if the statements have the substantial likelihood of material

prejudice in pending cases. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075

(1991). Additionally, the truth can not be punished either civilly or criminally.

See Garrison v. Louisiana, 379 U.S. 64, 74 (1964) and Art. I, § 4, Fla. Const.

(1968). Judges, in their capacities as individuals or courts, are entitled to no

greater immunity from criticism than other persons or institutions. See Landmark

Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978). A vague and

overbroad rule that prevents criticism of the judiciary unjustly stifles an attorney’s

First Amendment rights. See Bridges v. State of California, 314 U.S. 252, 270-271

(1941). A rule that is substantially overbroad and not fairly subject to a limiting

construction is facially invalid and violates the First Amendment. See Board of

Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S.

569, 577 (1987). A rule is overbroad when it authorizes the punishment of

constitutionally protected speech. See Coates v. City of Cincinnati, 402 U.S. 611,

614 (1971). A rule is unconstitutionally vague when it subjects the exercise of a

10

right to an unascertainable standard. See id. at 614.

In Bridges, the petitioners were held in contempt of court for comments that

were made in their newspapers about pending litigation. See Bridges at 258. The

state argued that the conviction was based on the state’s position that it had the

common law power to take appropriate measures to ensure fair trials free from

coercion or intimidation. See id. at 258-259. Petitioners challenged the ruling in

the California Supreme Court based on the violation of their First Amendment

rights and their convictions were affirmed. See id.

On review, the U.S. Supreme Court held that the curtailment of the First

Amendment right must be couched in terms of a serious substantive evil to be

averted and it appeared that the convictions were based on disrespect for the

judiciary and disorderly and unfair administration of justice. See id. at 270. In

reference to shielding judges, the Court held as follows:

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignify [sic] of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect. Id. at 270-271.

In reference to the statements causing an improper influence of the judicial

process, the Court held that the potency of the statements were the truthful

presentation of the facts. See id. at 278. Based on the aforementioned, the

11

judgments were reversed. See id.

In Jews for Jesus, Inc., the Board of Airport Commissioners of the City of

Los Angeles implemented a resolution that banned all First Amendment activities

at the Los Angeles International Airport (LAX). See Jews for Jesus, Inc. at 570.

Jews for Jesus was a nonprofit religious organization that distributed religious

leaflets at LAX and one of its members was asked to stop distributing leaflets and

to leave the premises as it was in violation of the resolution. See id. at 571. The

member and Jews for Jesus, Inc., filed a federal action in the district court

challenging the constitutionality of the resolution under the California and Federal

Constitutions as it was facially flawed since it banned speech in a public forum and

was vague and overbroad. See id. at 572. The district court ruled that the

resolution was facially unconstitutional under the United States Constitution. Id.

The court of appeals for the Ninth Judicial Circuit affirmed. Id.

The U.S. Supreme Court, affirmed the Ninth Judicial Circuit but on

different grounds. Id. The Court considered the resolution’s overbroad impact of

effectively limiting all forms of First Amendment speech without language that

limited the restriction. See id. at 573. The Court held that the construction of the

resolution violated the First Amendment because it was substantially overbroad

and not subject to a limiting construction because the resolution did not

demonstrate that it was necessary to serve a compelling state interest, narrowly

12

drawn to achieve that interest, or properly based on a narrowly tailored time, place,

and manner restriction. See id. at 573-577. The Court also found that the

vagueness of the resolution also presented serious constitutional problems. See id.

at 576.

In Coates, the city of Cincinnati implemented an ordinance that stated the

following:

It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings. Whoever violates any of the provisions of this section shall be fined not exceeding fifty dollars ($50.00), or be imprisoned not less than one (1) nor more than thirty (30) days or both. Section 901–L6, Code of Ordinances of the City of Cincinnati (1956). See Coates at n.1.

The appellants were convicted of violating the ordinance and a divided Supreme

Court of Ohio affirmed the ordinance’s constitutional validity. See id. at 612. The

appellants contended that the ordinance violated the First and Fourteenth

Amendments of the Constitution. Id. The Ohio Supreme Court did not indicate a

limited interpretation of the ordinance, but based its holding that the ordinance was

not vague as the word “annoying” had a specific definition and was precisely and

narrowly tailored to demonstrate the legislative intent of the conduct to be

prevented. See id. at 612-613. The Ohio Supreme Court never indicated whose

sensitivities had to be annoyed, and without same, it could have been numerous

13

individuals. Id. at 613.

The U.S. Supreme Court analyzed the ordinance based on its plain

construction and held that the ordinance was unconstitutionally vague and

overbroad because it limited a person’s exercise of a constitutional right based on

an unascertainable standard and authorized punishment for exercising the same

constitutional right. See id. at 614. The vagueness of the ordinance was clearly

evident as conduct that is annoying to some people is not annoying to others and

the person exercising the constitutional right is left without a standard of conduct

upon which to base his actions; thus, an ordinary person would have to guess at the

ordinance’s meaning. See id. If the state wants to limit an exercise of a person’s

constitutional right, then it must do so through enactment of law which is narrowly

constructed toward the prohibited conduct. See id. In reversing, the Supreme

Court held that a State can not criminalize the exercise of the First and Fourteenth

Amendments merely due to the gathering being annoying to some people. Id.

Finally, the Court held that a vague and overbroad ordinance invited

discriminatory enforcement. Id.

In Arthur Andersen Llp., Arthur Andersen LLP., was convicted for violating

18 U.S.C. §§ 1512(b)(2)(A) and (B) which stated in relevant part:

Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . cause or induce any person to . . . withhold testimony, or withhold a record,

14

document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding . . . shall be fined under this title or imprisoned not more than ten years, or both. Id. at 702-703.

The U.S. government argued that “knowingly” did not modify corruptly, but the Court held that “knowingly” required a mens rea and that the natural reading of the statute demonstrates “that the mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain.” See id. at 704-705. The Court based its reversal of the conviction upon statutory construction and the definitions of “knowingly” whereby a person who was “conscious of wrongdoing” could be said to “knowingly corruptly persuade.” See id. at 705-706. In the case at bar, rule 4-8.4(d) states the following:

A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.

The rule’s language is virtually indistinguishable from the language used in Coates

as it limits a person’s First and Fourteenth Amendment rights with the terms

“disparage, humiliate, or discriminate,” just as “annoying” was used in the

ordinance. Disparage is defined as “to speak of or treat slightingly; depreciate;

belittle.” Humiliate is defined as “to cause (a person) a painful loss of pride, self-

respect, or dignity; mortify.” Discriminate is defined as to “make a distinction in

favor of or against a person or thing on the basis of the group, class, or category to

which the person or thing belongs rather than according to actual merit.” All of the

15

aforementioned definitions are from Random House Webster’s Unabridged

Dictionary, Second Edition. The rule, just like the ordinance, fails to establish or

identify whose sensitivities must be harmed by the disparaging, humiliating, or

discriminatory language or acts.

Like the word “annoying” in Coates, an action or words that could constitute

language that “disparage, humiliate, or discriminate” against one person could be

viewed as a term of endearment to others. The word “nigger” is defined as “a

contemptuous term used to refer to a black person” (Random House Webster’s

Unabridged Dictionary, Second Edition) and is probably the most offensive word

in the English language that could be said to be “disparaging, humiliating, and

discriminatory” against blacks; however, it could be used as a term of affection and

endearment. See Journal of Praxis in Multicultural Education, Vol. 4 [2009]:

Iss.1, Art.3, page 2., and Motley, Carol M. and Craig-Henderson, Kellina M.,

“Epithet or Endearment?”, Journal of Black Studies 37.6 (2007): 944-963.

Based on the aforementioned definitions and term of endearment use of the

word “nigger”, could a black attorney calling another black attorney “nigger” after

a heated hearing be said to have used language that would “knowingly, or through

callous indifference, disparage, humiliate, or discriminate” against the other

attorney when the speaking attorney thought that the listening attorney was fine

with the word since they both used the word to each other the previous night when

16

they were out for drinks? Could a white clerk feel disparaged, humiliated, or

discriminated against if his or her spouse is black and he or she heard the

exchange? What if a white attorney, judge, or clerk liked Eminem and was singing

his song “Nigga” in front of a black attorney? Would the word “nigga” also be

said to make a black person feel disparaged, humiliated, or discriminated against?

Could a white judge hearing a black attorney call another black attorney, “My

nigger!” in court deem said phrase to be prejudicial to the administration of

justice? Would a white clerk commenting about a black attorney and saying, “He

is one cool nigger!” be prejudicial to the administration of justice or be said to have

been stated in a fashion that is knowingly, or through callous indifference,

disparaging, humiliating, or discriminating against the black attorney?

Additionally, in the case at bar, the referee’s application of the “knowingly”

prong analysis was that Respondent “did indeed, and he acknowledges that he's the

one that [sic] prepared the exceptions in the Matthew [sic] case, so he knowingly

did it.” The referee’s analysis of the knowingly prong of the rule is clearly

erroneous. The rule’s knowingly prong is “A lawyer shall not engage in conduct in

connection with the practice of law that is prejudicial to the administration of

justice, including to knowingly, or through callous indifference, disparage,

humiliate, or discriminate. . .” The bar’s allegations were that the language used

was not legal argument, but disparaging and humiliating statements. Using

17

statutory construction and an analysis of the charge in this case, the bar was

required to prove by clear and convincing evidence that Respondent “knowingly

disparaged or humiliated” judge Bronson and magistrate Hinds. The bar failed to

inquire, prove, or present evidence on the “knowingly” prong and Respondent

presented said failure to the referee. (T-514-515). The referee’s ruling “that he’s

the one that [sic] prepared the exceptions in the Matthew case, so he knowingly did

it” was based on an actus of preparing and filing the documents as opposed to rule

4-8.4(d)’s mens rea requirement of knowingly disparaging and humiliating judge

Bronson and magistrate Hinds. It should be noted that the callous indifference

prong was neither raised, presented, nor argued by bar counsel or the referee and

thus there is not any evidence to support same.

The aforementioned analysis demonstrates that “knowingly, or through

callous indifference, disparage, humiliate, or discriminate,” like the ordinance in

Coates, is subject to varying interpretations and is based on a “subjective feeling”

as opposed to an ascertainable “objective standard.” The rule’s language is not

limited in its application as any of the aforementioned examples could occur

anywhere – in the courtroom, courthouse, at a bar or restaurant, or even in a

person’s bedroom.

Rule 4-8.4(d) is more vague and overbroad than the ordinance in Coates

since, as drafted, it is not narrowly tailored for time, place, and manner restrictions

18

and effectively applies to an attorney twenty-four hours a day in any location that

he is present. Further, rule 4-8.4(d), like the ordinance in Coates, is vague and

enforceable through arbitrary and subjective means anytime and everywhere

anyone can say that he or she felt disparaged, humiliated, or discriminated against.

“As a result, ‘men of common intelligence must necessarily guess at its meaning.’”

See Coates at 614.

Similarly, in the case at bar, the vagueness of rule 4-8.4(d)’s proscription of

language that would criticize the judiciary if it is true but believed to “disparage,

humiliate, or discriminate” is demonstrated in the following exchanges in reference

to Respondent’s First Amendment and Article 1, § 4 rights:

Carlton Pierce: Does an attorney have the right to state the truth regardless if the person being written about takes offense to it, or like or doesn't like it?

Magistrate Hinds: I think you give up that right when you become an attorney.

You need to read your rules. (T-62).

************************* Carlton Pierce: So are you stating that the parties are precluded from making a

statement? Judge Bronson What you think ought not to be voiced all the time, you ought

to keep some of your thoughts to yourself. There is no express rule which prohibits you from calling a magistrate incompetent. (T-283-284).

*************************

Bar Counsel: The truth is not applicable in these proceedings.” (T-476).

19

Respondent's belief that his statements are protected by the Constitution is also incorrect. As an officer of the court respondent does not enjoy unabridged free speech rights under the Florida Constitution or the United States Constitution. . . .The first Amendment does not shield a lawyer from being disciplined for making unfounded allegations against the judiciary. (T-478).

*************************

Referee: In regard to number 1, the truth, I'll address that further as I get

into my ruling. In regard to paragraph 2, article 1, section 4 of the Florida Constitution, it certainly says what it says. And number 3, the United States Constitution certainly says what it says. We also are members of the Florida Bar whenever we take the oath and we agree to ascribe and constrict our conduct to what is required by the bar. And we have rules, and those rules are cited here for violation today as far as what the court has to consider if that has been proven by clear and convincing evidence and has not otherwise been avoided by the avoidances and defenses. (T-521-522).

Referee’s Report: Lawyers do not have a right to practice law, it is a privilege.

Lawyers are governed not only by the laws of the land, but by the rules governing attorney conduct. As such, conduct by an attorney that in other circumstances may be constitutionally protected may be prohibited. Pursuant to the Rules Regulating The Florida Bar, respondent is not free to make statements that disparage and humiliate Magistrate Hinds and Judge Bronson. (A-16).

*************************

Carlton Pierce: I believe that a person does not park his first amendment rights

and constitutional protections at the front door of the courthouse and the party does not lose his right to express himself when the court should not be able to simply direct modifications of his words when said words are not liked. This is a form of censorship and would create a very slippery slope whereby it would infringe on the client's rights and the

20

attorney's responsibility of zealous representation and drafting documents as deemed necessary as opposed to the court drafting the document telling the attorney what to say. (T-512-513).

Each person who spoke about the First Amendment and Article I, § 4 rights

was of common intelligence as they were all members of the Florida bar and each

opinion of the aforementioned constitutional right was varied from the other.

Magistrate Hinds indicated that a lawyer lost his First Amendment rights upon

joining the bar; judge Bronson stated that there was not a rule prohibiting the

criticism of the judiciary; the referee orally ruled that First Amendment rights

could be limited and his Report stated that First Amendment rights could be

prohibited; bar counsel stated that the right was abridged and the truth did not

matter; and, Respondent felt that he retained his First Amendment rights. A rule is

definitely vague when five members of the bar have five different opinions about

its meaning and application.

Finally, rule 4-8.4(d) fails to have a safe harbor provision for the truth and

therefore precludes honest criticism in violation of Garrison’s holding that the

truth “may not be the subject of either civil or criminal sanctions” and the Florida

Constitution’s guaranteed protection that “[e]very person may speak, write and

publish sentiments on all subjects but shall be responsible for the abuse of that

right. No law shall be passed to restrain or abridge the liberty of speech or of the

press.” See Garrison at 74 and Art. I, § 4, Fla. Const. (1968). Although the

21

referee addressed the truth, the analysis of same was based on his subjective

opinion and not on the objectively reasonable basis standard outlined in Florida

Bar v. Ray, 797 So.2d 556 (Fla. 2001). The Ray “objectively reasonable basis”

standard is discussed in detail in Issue II.

Respondent was also charged with violating R. Regulating Fla. Bar 4-1.8(e).

As charged, the referee found that “the evidence presented clearly and

convincingly demonstrates that respondent advanced funds to his client that were

not a court cost or an expense of litigation as required by the Rules Regulating the

Florida Bar.” The referee also found that “respondent’s assertion that there was no

rule precluding purges as being a reasonable cost and/or expense of litigation is

without merit. The rules governing an attorney’s conduct are clear. An attorney is

only permitted to advance funds to a client under certain prescribed circumstances.

Payment of a purge is not one of the circumstances for which funds may be

advanced.” (A-4-5). However, the Report also found that the funds were received

from Jensen’s father and “was expected to be “rapidly deployed” due to Mr.

Jensen’s financial situation and to get Mr. Jensen out of jail when he was held in

contempt for non-payment of child support.” (A-5).

Rules Regulating Florida Bar 4-1.8(e) prohibits providing financial

assistance to a client in connection with a pending or expected matter, except that

“(1) a lawyer may advance court costs and expenses of litigation, the repayment of

22

which may be contingent on the outcome of the matter; and (2) a lawyer

representing an indigent client may pay court costs and expenses of litigation of

behalf of the client.” R. Regulating Fla. Bar 4-1.8(e).

It is without question that the funds that were advanced were on behalf of

the father as was agreed by the parties. (T-234-235). The father was also

responsible for paying all costs and fees associated with Jensen’s case. (T-231).

The Report’s findings indicate that there was a third party contract between

Respondent and Jensen’s father, for the benefit of Jensen, to expend any funds

necessary in connection with the case including payment of any costs or fees to get

him out of jail and that the father would pay for same. Jensen’s father never put a

limit on what was to be paid or how funds were to be spent except to the benefit of

his son.

Rules Regulating Florida Bar 4-1.8(e) is vague as it does not state or define

what “court costs and expenses of litigation” are or how a person subject to the rule

could be properly informed as to whose definition would be used in “court costs

and expenses of litigation.” Is the definition defined by the parties in a retainer

agreement or a third party contract? Is it subject to the definition of the referee? Is

it subject to the definition of bar counsel? Is it subject to the definition of the

circuit, district, or supreme court? Does it specifically limit the terms in the

drafting of a contract? Is there a definitive list of all authorized court costs and

23

expenses of litigation? Would the common attorney exposed to the rule know all

of the authorized “court costs and expenses of litigation” when a detailed list

pursuant to the rule does not exist? The rule does not answer any of the

aforementioned questions directly and is thus vague and not fairly subject to a

limiting construction, yet subjects a member of the bar to discipline for its

violation where “men of common intelligence must necessarily guess at its

meaning” and suffer if they guess incorrectly.

This Court should find that rule 4-8.4(d) is unconstitutional and violates the

First and Fourteenth Amendments and Article I, § 4 because it is a vague and

overbroad rule that: (1) is not fairly subject to a limiting construction; (2) is not

limited for time, place, and manner; (3) fails to have a safe harbor provision for the

truth; (4) authorizes the punishment of constitutionally protected speech; and, (5)

subjects the exercise of a constitutional right to an unascertainable standard.

This Court should find that rule 4-1.8(e) is unconstitutional and violates

Article I, § 10 because it is a vague and overbroad rule that: (1) is not fairly subject

to a limiting construction; (2) authorizes the punishment for the constitutionally

protected right to contract; and, (3) subjects the exercise of a constitutional right to

an unascertainable standard.

Rule 4-8.4(d) is grammatically similar to 18 U.S.C. §§ 1512(b)(2)(A) and

(B) in that there must be a requisite mens rea of knowingly committing an offense

24

to support a finding of guilt. Pursuant to Arthur Andersen Llp., and the plain

language of rule 4-8.4(d), this Court should dismiss the charge as there was not any

evidence presented on Respondent’s mens rea and a finding of guilt can not be

sustained absent evidence demonstrating intent to “knowingly, or through callous

indifference, disparage, humiliate, or discriminate.”

Issue II

Rule 4-8.4(d) does not bar objectively reasonable statements or legal arguments criticizing the judiciary. In attorney disciplinary proceedings in Florida, the standard circumscribing

an attorney’s protected speech under the First Amendment is the “objectively

reasonable basis” standard. See Ray at 558. In Ray, the respondent was charged

with violating rule 4-8.2(a) “a lawyer shall not make a statement that the lawyer

knows to be false or with reckless disregard as to its truth or falsity concerning the

qualifications or integrity of a judge.” Id. at 557. The charge was based on the

allegation that Ray made several statements in letters to the chief immigration

judge questioning another immigration judge’s integrity and fairness at a hearing

for his client. Id. The referee found as follows:

The letters contained accusations which are utterly false and they were made in my way of thinking at a minimum–at a minimum–with reckless disregard for the truth.

Indeed, if there is one word that characterizes these letters, it is reckless.

25

... I have read the transcript and I have listened to the tape and there was nothing–nothing–that transpired in that hearing that would justify such outrageously false accusations. And I am utterly appalled that this kind of language would be used against anybody on evidence that barely qualifies as sketchy. Id. at 558

Ray contended that his statements were opinion, he had a subjectively

reasonable basis in fact for making them, and that the defamation standard of New

York Times Co. v. Sullivan, 376 U.S. 254 (1964) applied in attorney disciplinary

proceedings in Florida. Id. This Court reasoned and held that the defamation

standard of New York Times Co., was inappropriate in attorney disciplinary

hearings and did not apply as the purpose of a claim of defamation was to remedy

a private wrong while the rules of discipline were to preserve the public’s

confidence in the fairness and impartiality of the justice system. Id. at 558-559.

The analysis in Ray focused on the fact that the referee took evidence from

the bar and Ray regarding whether he had a reasonable basis in fact to make the

statements in his letter. Id. at 559. Upon examining the evidence and testimony of

Ray, this Court highlighted the referee’s findings that it was impossible for Ray to

“call someone a liar for a statement they never made. . . nothing that transpired in

that hearing that would justify such outrageously false accusations” and that Ray’s

basis in making the statement “barely even qualifies as sketchy. . .[thus] Ray’s

statements were made with reckless disregard for the truth.” Id. The amici argued

that criticism of the judiciary would be severely limited if the report was allowed

26

to stand. Id. at 560. In approving the referee’s recommendation, this Court held

that the case does not limit an attorney’s legitimate criticism of judicial officers,

but they must follow the rules when doing so as “statements impugning the

integrity of a judge, when made with reckless disregard as to their truth or falsity,

erode public confidence in the judicial system without assisting to publicize

problems that legitimately deserve attention.” Id.

Although the “objectively reasonable basis” standard in Ray was predicated

on rule 4-8.2(a), the standard also applies to violations of rule 4-8.4(d) as those

cases have involved primarily lying, knowingly acting/speaking to cause

unnecessary hearings, and trust account violations that could impact a legal

proceeding as demonstrated by some of the cases below:

Florida Bar v. Brake, 767 So.2d 1163 (Fla. 2000). Willful violation of fiduciary duties. Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007). Trust account violations. Florida Bar v. Cohen, 908 So.2d 405 (Fla. 2005). Conspiracy with drug dealing with submission of false evidence, false statements, and deceptive practices. Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008). Decision without published opinion. Admitted to calling the judge an “evil, unfair witch” and indicated that she was “seemingly mentally ill.” The bar proceeded under rules 3-4.2, 3-4.3, 4-8.2(a). 4-8.4(a), and 4-8.4(d). Florida Bar v. D’Ambrosio, 25 So.3d 1209 (Fla. 2009). Deliberately filing misleading information on a court filing. Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005). False accusations of pedophilia against a person.

27

Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000). A release of culpability with bar and threat with release of trust funds. Florida Bar v. Head, 27 So.3d 1 (Fla. 2010). Equivocation caused unnecessary hearings. Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006). Outbursts in court, called judge out of his name, and going beyond proffer in an attempt to cause a mistrial. Florida Bar v. Nunes, 734 So.2d 393 (Fla. 1999). False accusations against counsel in reference to missing court file. Florida Bar v. Roth, 693 So.2d 969 (Fla. 1997). Lying, diversion of trust assets, and threatened molestation lawsuit. Florida Bar v. Schram, 668 So.2d 585 (Fla. 1996). Lied to judge in reference to calendar conflict. Florida Bar v. Springer, SC02-1687 (Fla. 2004). Repeatedly lied to client about legal proceedings. Florida Bar v. Varner, 992 So.2d 228 (Fla. 2008). Lied about authority to dismiss client’s case, dismissed same, and did not tell the client about dismissal. Ray’s analysis is appropriate in the case herein as it focuses on whether

Respondent had an objectively reasonable basis to believe that his statements were

true and/or accurate. Further, in the instant case, bar counsel has already admitted

that Ray’s “objectively reasonable basis” standard is applicable when she stated

“[a]lthough respondent has not been charged with violating R. Regulating Fla. Bar

4-8.2(a), case law interpreting this rule is applicable to examining respondent’s

affirmative defense of truth.” (R-25).

Count II of the Complaint alleged a violation of rule 4-8.4(d) with the basis

28

of same being that the language used in the Exceptions, Revised Exceptions, and

Motion to Disqualify did not constitute legal argument, but a personal attack on

judge Bronson and magistrate Hinds. The referee found that the bar had

established by clear and convincing evidence all of the allegations in paragraphs

10-31, the entirety of count II. (T-520-525).

The ruling failed to address the objectively reasonable standard and the bar

failed to put on any evidence to prove with clear and convincing evidence that the

statements used were not legal argument and that they violated rule 4-8.4(d). An

analysis of the statements in the Exceptions would demonstrate that they were

objectively reasonable legal arguments raising legitimate issues that were required

to be preserved. See Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970). (On

appeal, all issues, except constitutional issues of fundamental error, are waived

unless they are timely raised in the trial court.) An analysis of each allegation that

was found not to be legal argument by the referee is listed below with the legal

underpinnings and/or rationale for same immediately following along with, as

applicable, caselaw using similar language.

Petitioner’s due process rights were violated when the magistrate: (1) refused to obey this Court’s Order in accordance with Fla. Fam. L. R. P. 12.490(3); (2) ruled on issues not properly before her; and (3) demonstrated her bias and incompetence by attempting to justify her recommendation by creating inapplicable findings.

Bias and incompetence are specific legal arguments which demonstrate the

29

slant of the magistrate’s report and recommendation by refusing to obey the trial

court’s order in accordance with Fla. Fam. L. R. P. 12.490(3) and ruling on issues

not properly before her. A case using the same or similar language includes

Florida Bar v. Springer at 326 n2 (Like onions, the counts described in the

majority opinion can be peeled to reveal numerous layers of incompetence.) Also,

this Court has held that “it is clear that a judge who is ignorant of the law cannot

afford due process.” Treiman v. State ex rel. Miner, 343 So.2d 819, 823 (Fla.

1977). Therefore, a judge or magistrate’s competence is always at issue in a case.

. . . Additionally, her recommendations can not be sustained as her justifications were contrivances that attempted to bootstrap and create support from nonexistent findings created out of whole cloth and unsupported by caselaw or statutory provisions. The magistrate demonstrated her bias and incompetence by attempting to justify her recommendation by creating inapplicable findings. . . . . The magistrate has again demonstrated a bias against Petitioner and that she is more than willing to violate the plain language of the Florida Family Law Rules of Procedure.

There were not any findings in the record to support the magistrate’s intent

and the magistrate stated that she did not have any idea why the filings were done,

none of the motion hearings were in front of her, there were never any § 57.105

rulings, delay was not a reason for a § 57.105 sanction, and there was never a

finding of bad faith to satisfy Moakley v. Smallwood; therefore, the magistrate did

not have any basis for raising sanctions pursuant to § 57.105 and Moakley v.

Smallwood. (T-53-61). Mr. Matthew also testified that he thought that the

30

magistrate was biased. (T-329).

The Order was simply to determine her intent as to which pleading would

entitle the former wife attorney’s fees (RC1-194); thus, she was limited as to the

matter before her. The Order never told her to determine an amount and/or

payment time as that was specifically reserved to the trial court. The specific issue

of referral is so basic in family law that exceeding the order is per se reversible

error as it is a violation of due process. In this case, the judge agreed with the

analysis. (T-187).

Some of the cases using the same or similar language include Siegle v. Progressive Insurance, 819 So.2d 732, 739 (Fla. 2002) (A court cannot create something out of whole cloth, when nothing exists.); Brock v. Brock, 690 So.2d 737, 740 (Fla. 5th DCA 1997) ( “A trial judge cannot create findings out of thin air.”); Antonelli v. Neumann, 537 So.2d 1027, 1029 (Fla. 3d DCA 1988) (the “project was merely a contrivance to conceal a usurious transaction.”); and, Carrollwood State Bank v. Lewis, 362 So.2d 110, 114 (Fla. 1st DCA 1978) (“We admonish against attempts to evade appropriate review procedures by clothing claims for coercive relief in raiment of dubious constitutional dimensions in order to bootstrap such claims into subjects for declaratory decrees.”).

. . . The magistrate’s attempt to justify her recommendation by citing to § 57.105 and Moakley v. Smallwood is misplaced, inapplicable, and demonstrates her incompetence and/or refusal to follow blackletter law. The attempted justification demonstrates that she is willing to create inapplicable findings from whole cloth and attempt to bootstrap support by improperly applying the “findings” to caselaw and statutory provisions.

. . . Clearly, the magistrate did not comprehend or misconceived Moakley v. Smallwood as the attorney’s fees in her recommendation are clearly not against the attorney and, if so, violative of the plain due process requirements.

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Based on the plain language of § 57.105 and Moakley v. Smallwood, and the magistrate’s admission that she did not have any evidence that either applied (T-53-61), it is objectively reasonable to perceive that the magistrate was either incompetent and/or refused to follow blackletter law. Any justification was not based on the record; thus, the magistrate created inapplicable findings from whole cloth as a method of bootstrapping support by improperly applying the “findings” to caselaw and statutory provisions. What was the magistrate’s real reason for drafting her recommendations? She wanted to teach Respondent a lesson – “I was attempting to put him on notice that his behavior is going to lead to problems for him and hoping he would see that this is no way to practice law.” (RC1-374). The use of a recommendation by a magistrate is limited to the purposes outlined in Fla. Fam. L. R. P. 12.490 and teaching an attorney a lesson is not one of the provisions. The magistrates [sic] bias, incompetence, lack of knowledge of the application of the statute, rules, and caselaw are disturbing, shock the conscience, and shake the very core of what should be expected in the legal system – the cold neutrality of an impartial magistrate who is knowledgeable of the law, will follow same, and not trample upon one’s due process rights. . . . .

The magistrate clearly failed to know and understand Moakley v.

Smallwood, § 57.105, and the application of Fla. Fam. L. R. P. 12.490. (T-53-61).

She also violated Matthew’s due process rights when she heard matters that were

not before her and interviewed a witness ex parte over an objection. Moreover, she

admitted that she did not know the law or refused to follow it when asked whether

she was going to record the conversation with the minor child in the following

exchange:

Mr. Greenberg: You record the proceedings though when you talk to him, don’t you, ma’am?

Magistrate: No. I do not do that. Maybe I should, but I don’t. (RC5-96).

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A magistrate “who is ignorant of the law cannot afford due process.” See Treiman

at 823. It is objectively reasonable that one’s conscience would be shocked and

feel that the core of the legal process has been violated when experiencing the

aforementioned and Mr. Matthew stated same. (T-329).

Some of the cases using the same or similar language include Crocker v.

Pleasant, 778 So.2d 978, 983 (Fla. 2001) (A violation of substantive due process

can also arise where the governmental action “shocks the conscience.”); State v.

Inciarrano, 473 So.2d 1272, 1277 (Fla. 1985) (“To hold, as the majority does, that

the commission of a criminal act waives a privacy right requires an entirely new

legal definition of privacy rights which would, in turn, shake the foundation of

fourth amendment analysis.”); and, Livingston v. State, 441 So.2d 1083, 1086 (Fla.

1983) (“Every litigant, including the State in criminal cases, is entitled to nothing

less than the cold neutrality of an impartial judge. It is the duty of courts to

scrupulously guard this right of the litigant and to refrain from attempting to

exercise jurisdiction in any matter where his qualification to do so is seriously

brought to question. The exercise of any other policy tends to discredit and place

the judiciary in a compromising attitude which is bad for the administration of

justice.”)

This document was drafted pursuant to the Court’s Order as the Court herein appeared to be more concerned with protecting the bias and incompetence of the magistrate as opposed to protecting the due process rights of Petitioner. . . . The Court’s statement clearly

33

demonstrates that it was either indifferent to and/or unwilling and/or unable to follow the clear and unambiguous law as mandated in Fla. Fam. L. R. P. 12.490(d)(2). . . .

This statement is objectively reasonable as judge Bronson did not contest the

legal accuracy of the Exceptions, but thought that it could have been stated in a

different manner that, from his view, did not seem as a personal attack. (T-284).

However, the judge also acknowledged that there is no rule against calling a

magistrate biased or incompetent. (T-283-284). Mr. Matthew also testified that he

thought that judge Bronson was more concerned with protecting the magistrate and

her ruling as to opposed to his due process rights. (T-337). The law pertaining to

exceptions hearings for a recommendation from a magistrate are clearly delineated

in Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999) and more fully

explained in (RC1-179-191). The court failed to comply with Doyle and Klinka,

and admitted that there was a due process violation, but decided not to vacate the

magistrate’s recommendation which would lead one to objectively believe that

judge Bronson “was either indifferent to and/or unwilling and/or unable to follow

the clear and unambiguous law as mandated in Fla. Fam. L. R. P. 12.490(d)(2).”

On October 22, 2008, a hearing on the exceptions occurred before this Court. The following are just a few of the statements from the October 22, 2008, hearing that demonstrate this Court’s incompetence, failure to comply with the law, and necessity for mandatory disqualification. . . . . This Court’s statements are nonsensical and demonstrate it does not understand the law, magistrate’s role, process of exceptions, or role of a judge in hearing the exceptions. . . . .

34

. . . When the correct legal standard was brought to this Court’s attention, it refused to comply with the standards established by the law. This Court clearly does not understand the appellate process and its relationship to the filing of exceptions.

The statements identified in the language above and an analysis of same are

below.

The Court will overrule the objection. The magistrate is the appropriate one to decide on the issue of entitlement to attorney’s fees. There’s no definitive ruling by the magistrate as to the amount of the attorney’s fees. And the only person who can decide based upon the issues before the magistrate as to whether or not there was a basis for entitlement would have been the magistrate. . . . And so if the case is heard by the magistrate and there is not a ruling on entitlement, the only way some other judge or magistrate could rule on the issue of entitlement is if that person conducts the entire proceeding. I mean the magistrate ruled based upon what transpired that there was an entitlement. There’s nothing at this point as to the definitive amount of attorney’s fees. And I’ll overrule the objection as to the issue of the magistrate ruling as to the entitlement of attorney’s fees. She said that your client filed a needless motion, a motion that should not have been litigated. Based upon that she ruled that that was an entitlement. I don’t see anything wrong with that. . . . Well, I assume that she deduced that based upon what happened during the course of the hearing. (RC4-8-9).

So based upon what I’ve seen, she gave – she was given a deduction for – it says on here, federal income tax is what it says. And the only federal income tax situation that would merit a credit that you all told me about is the earned income credit. So I’m assuming that was what the magistrate had in mind, so that exception is overruled. (RC4-15). But as to the earned income credit, I’ll find that there is no evidence that the magistrate abused her powers, that she didn’t abuse her powers, that she didn’t abuse her discretion, and that nothing has been pointed out to this Court to indicate that somehow the magistrate’s calculations which consider this income tax credit were incorrect. . . . What I’m saying is that as the judge I sit in the basic position of an

35

appellate court and I have to decide whether or not somehow the magistrate has abused her discretion in making the rulings that she made. And I find that she has not and that there is competent substantial evidence which supports her calculations. (RC4-17-18).

The law is very clear that a ruling on an issue not noticed for hearing or

litigated by the parties violates due process rights. See Klinka v. Klinka, 959 So.2d

383, 385 (Fla. 5th DCA 2007). The issues not resolved by the magistrate are

specifically reserved for the court. See Anderson at 50-51. Judge Bronson’s view,

that he must assume the magistrate’s deductions is in direct opposition to the

statutes, rules, and caselaw that require specific findings supported by competent

substantial evidence. See Anderson at 50-51 and Fla. Fam. L. R. P. 12.490. Child

support calculations must be based on competent substantial evidence and the

source for the calculations must be listed in the final judgment. See Armour v.

McMiller, 15 So.2d 923, 925 (Fla. 5th DCA 2009), citing a plethora of other cases.

A case using similar language to that which is alleged to be improper is Schmitt v.

State, 590 So.2d 404, 413 (Fla. 1991) (“the illegal language of subsection

827.071(1)(g) clearly can be separated from the remaining valid language without

rendering the enactment nonsensical.”)

. . . This Court’s statements clearly demonstrate that it is incompetent and indifferent to and/or unwilling and/or unable to follow the clear and unambiguous law as mandated in Fla. Fam. L. R. P. 12.490(d)(2) and the associated caselaw. On April 1, 2009, a hearing was held on Petitioner’s exceptions that were served on March 5, 2009, whereby this Court ordered part of the exceptions to be sealed, yet failed to state the necessary findings

36

for sealing the court documents . . . . [sic] On August 24, 2009, this Court entered an order that clearly did not comply with the basics of drafting an order or Florida Rules of Judicial Administration since it failed to include any findings demonstrating why the portions of the document should be sealed pursuant to the law.

The statement encompassing Fla. Fam. L. R. P. 12.490(d)(2) is analyzed in

the paragraph supra. The statement encompassing the April 1, 2009 hearing

demonstrates that judge Bronson failed to state the necessary findings for sealing

the court documents as he failed to include which specific rule of Fla. R. Jud.

Admin. 2.420(c) and the basis for same (RC1-207-279) although it was brought to

his attention on August 18, 2009 (RC1-285); yet, he entered the order and left the

spaces blank. (RC1- 292-295). The order that was entered and commented about

demonstrates the accuracy of the statement was objectively reasonable since judge

Bronson failed to state the necessary findings for sealing the court documents and

mandated by Fla. R. Jud. Admin. 2.420(c). (RC1-292-295). The shortcoming in

judge Bronson’s order was brought to the attention of the Clerk of Court on

September 3, 2009. (RC1-296). The next day, judge Bronson entered another

order on sealing the record and said order was not sent to Respondent. (RC1-297-

299). When asked why he did not fill in the blanks pursuant to Fla. R. Jud. Admin.

2.420(c), judge Bronson stated that he did not think that it was necessary. (T-172),

but he could not explain why he filed the second order when asked about same.

(T-174).

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The abovementioned statements about judge Bronson’s incompetence and

failure to comply with Fla. R. Jud. Admin. 2.420(c) are objectively reasonable

considering the plain evidence of the documents and judge Bronson’s subsequent

action of entering a second order that arguably complied with Fla. R. Jud. Admin.

2.420(c).

This Court has clearly demonstrated impropriety and the appearance of impropriety by failing to know and follow the law, rules, caselaw, and the provisions of the Code of Judicial Conduct. . . . Rather than professing error and correcting the obvious malfeasance, this Court allowed the case to proceed and caused Petitioner to incur needless attorney’s fees and costs.

This Court has demonstrated an inherent bias against Petitioner and his counsel as cited in paragraph 6. Remaining on the case after being named as a respondent demonstrates this Court’s intent to be biased and seek revenge with another biased ruling. The Court’s impartiality and competence are reasonably questioned considering paragraph 6. Finally, the Honorable Theotis Bronson, this Court, as a party to the suit, has more than a de minimis interest in the outcome of the case since the granting of the writ would demonstrate this Court’s incompetence, indifference, and/or inability to follow the law when presented to it in a clear, concise, and unambiguous manner. This Court’s actions have clearly demonstrated that it is biased and incapable of being impartial or unable and/or unwilling to follow the law in the case subjudice and should be disqualified as Petitioner has a real and palpable fear that his due process rights will again be violated and he will not be able to get a fair and impartial hearing before the Court as demonstrated by the Court’s refusal to follow the rules, statute, and caselaw.

Florida Rules of Judicial Administration 2.330 governs the disqualification

of county and circuit trial judges. See Fla. R. Jud. Admin. 2.330. The rule states

that any party may file a motion to disqualify the trial judge assigned to the case on

38

any ground provided by rule, statute, or the Code of Judicial Conduct. See id. The

rule mandates that the motion shall, inter alia, allege specifically the facts and

reasons upon which the movant relies as the grounds for disqualification and that

the party fears that he or she will not receive a fair trial or hearing because of

specifically described prejudice or bias of the judge. See id.

The backdrop of the motion to disqualify is illuminated in the preamble of

the Code of Judicial Conduct that states, “Our legal system is based on the

principle that an independent, fair and competent judiciary will interpret and apply

the laws that govern us.” Fla. Code Jud. Conduct, Preamble. Additionally, Canon

2 states that a “judge shall avoid impropriety and the appearance of impropriety in

all of the judges’s activities. Id. at Canon 2. Further, Canon 2A states that a

“judge shall respect and comply with the law and shall act at all times in a manner

that promotes public confidence in the integrity and impartiality of the judiciary.”

Id. at Canon 2A. Canon 2A is reinforced by Canon 3B(2)and 3C(1)’s mandates

that a “judge shall be faithful to the law and maintain professional competence in

it. . . . A judge shall diligently discharge the judge's administrative responsibilities

without bias or prejudice and maintain professional competence in judicial

administration.” Id. at Canons 3B(2) and 3C(1). Finally, “the test for appearance

of impropriety is whether the conduct would create in reasonable minds, with

knowledge of all the relevant circumstances that a reasonable inquiry would

39

disclose, a perception that the judge's ability to carry out judicial responsibilities

with integrity, impartiality, and competence is impaired.” Id. at Comment. to

Canon 2A.

Rule 2.330 does not state exactly what can and can not be stated or how to

describe the specific fear faced by the party. An analysis of Matthew’s Verified

Motion to Disqualify demonstrates that Matthew alleged that he had a fear of bias

and that the judge Bronson had an interest in the case. Further, he specifically

alleged that he had a concern about judge Bronson’s competence and gave the

basis for same. Considering the requirements of rule 2.330, the allegations about

judge Bronson were objectively reasonable and mandatory.

A judge or magistrate’s competence is always an issue in a proceeding since

a judge or magistrate who is ignorant of the law can not afford due process. See

Treiman at 823. A judge is required to be competent pursuant to Canon 3B(2) and

3C(1). A magistrate, who is an attorney, is required to be competent pursuant to R.

Regulating Fla. Bar 4.1.1 which states that “a lawyer shall provide competent

representation to a client. Competent representation requires the legal knowledge,

skill, thoroughness, and preparation reasonably necessary for the representation.”

See R. Regulating Fla. Bar 4-1.1. In the case of a judge or magistrate, the clients

are those people appearing before them and the judicial process. Although there

are not any articulated specific standards for competence in the Code of Judicial

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Conduct or the Florida Judicial Qualifications Commission’s Rules, the Florida

Standards for Imposing Lawyer Sanctions 4.5 establishes the following guidelines

for competence and the failure to maintain same:

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.

4.52 Suspension is appropriate when a

lawyer engages in an area of practice in which the lawyer knowingly lacks competence, and causes injury or potential injury to a client.

4.53 Public reprimand is appropriate when a

lawyer: (a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client;

or (b) is negligent in determining whether the lawyer is

competent to handle a legal matter and causes injury or potential injury to a client.

4.54 Admonishment is appropriate when a

lawyer engages in an isolated instance of negligence in determining whether the lawyer is competent to handle a legal matter, and causes little or no injury to a client.

To avoid punishment based on the drafting of the abovementioned rule, a

41

member of the legal community should demonstrate the competence necessary to

handle a legal matter with the requisite skill without negligence and/or harming the

client. It is reasonable to expect for a magistrate, who is an attorney, and a judge,

who is expected to have at least the same knowledge of an attorney, to have the

aforementioned level of competence established by the Florida Standards for

Imposing Lawyer Sanctions 4.5. Additionally, magistrate Hinds is required to

perform her duties in accordance with, inter alia, Fla. Fam. L. R. P. 12.490 and she

swore that she would faithfully follow same. (T-370-373). Competence requires

that the judge and magistrate be able to review the record and evidence, find

competent substantial evidence, and utilize same in the ruling or recommendations.

Moreover, a judge or magistrate should be able to articulate the legal bases for his

or her findings that they place in a ruling or recommendation.

The bar presented witness Mark O’Mara to testify in this matter. (T-112).

O’Mara graduated from law school in 1982, has practiced family law for more than

25 years, is board certified in criminal law, and is pending board certification in

family law. (T-114-116). He was also past president of the Central Florida Family

Law, American Inns of Court (Inns). (T-115). O’Mara testified that each member

must be re-invited annually and Respondent was a member of the Inns for three

years. (T-123, 130). O’Mara acknowledged that there are several statutes, rules,

and cases that every competent attorney should know if they practice in family

42

law. (T-126-128). A few of the aforementioned are § 61.075; § 61.08; § 61.16;

Fla. Fam. L. R. P. 12.615; Fla. Fam. L. R. P. 12.285; Canakaris v. Canakaris, 382

So.2d 1197 (Fla. 1980); Encarnacion v. Encarnacion, 877 So.2d 960 (Fla. 5th

DCA 2004); Rosen v. Rosen, 696 So.2d 697 (Fla. 1997); and, Wade v. Hirschman,

903 So.2d 928 (FL 2005). (T-126-128). Any member of the Inns above the level

of associate should have a working knowledge of the aforementioned statutes,

rules, caselaw and their application. (T-129).

Respondent is a family law attorney whose practice has focused on family

law and family law appeals since 2004. (T-413). Seventy to ninety percent of

Respondent’s CLEs are family law related. (T-413). Respondent routinely does

appeals and is vigilant in noting the appellate issues of each case. (T-438). He

was a member of the Inns as an associate and knew and observed judge Bronson

and magistrate Hinds as members. (T-413-414). Respondent agreed with

O’Mara’s objective view that members of the Inn above the level of associate

should have a thorough working knowledge of the statutes, rules, and caselaw

associated with family law. (T-414).

The referee stated the following in reference to the competence of magistrate

Hinds and judge Bronson:

There is certainly testimony to support that mistakes were made by Magistrate Hinds. There's certainly testimony to support that Judge Bronson made some errors because he was reversed on at least two things that I saw in front of me. But because we make errors

43

proves one thing, that we're human. It doesn't prove that we're incompetent, it doesn't prove that we're bias [sic], it doesn't prove that we're prejudice [sic], and it doesn't prove that we make nonsensical rulings. What it does establish is that there is a difference of opinion. There is a forum for taking the difference of opinion up and it's called an appeal and that's the forum that should have been used. This forum should have not been used for the language used in those exceptions. (T-525).

The referee failed to analyze whether the statements were objectively

reasonable considering Respondent’s knowledge of judge Bronson and magistrate

Hinds, complete legal experience and knowledge, and the actual statutes, rules, and

caselaw that were presented along with whether there was a pattern of failure to

comply with the statutes, rules, and caselaw. Respondent noticed and articulated a

pattern of judge Bronson and magistrate Hinds’ failure to know and comply with

the statutes, rules, and caselaw which led him to believe that his statements were

objectively reasonable based on his complete legal experience involving same. A

synopsis of a few of judge Bronson and magistrate Hinds’ failures to comply with

the statutes, rules, and caselaw are listed on A-68-87. A review of the synopses

demonstrates that the judge and magistrate committed the same errors and others

over an extended period of time and could not articulate the correct bases for the

rulings or recommendations. It is objectively reasonable to state that a judge and

magistrate are incompetent when considering the aforementioned combined with

the analysis of Matthew herein. Moreover, judge Bronson and magistrate Hinds’

failures to comply with the statutes, rules, and caselaw: (1) demonstrate a

44

failure to understand relevant legal doctrines or

procedures and causes injury or potential injury to a

client; or (2) negligence in determining whether the

he/she is competent to handle a legal matter and causes

injury or potential injury to a client. The

aforementioned, but for the fact that they are members

of the judiciary, would subject them to at least a

public reprimand pursuant to Fla. Stds. Imposing Law. Sancs. IIIA,

4.53.

The referee’s statement, “What it does establish is that there is a difference

of opinion” in reference Respondent’s statements about judge Bronson and

magistrate Hinds’s incompetence mirrors the reasonableness test established in

Canakaris that “[i]f reasonable men could differ as to the propriety of the action

taken by the trial court, then the action is not unreasonable.” Similarly, in the case

of the objectively reasonable standard, the referee’s finding was that there was a

difference of opinion, not that the statements were unreasonable or that no

reasonable person would have taken Respondent’s view that the magistrate and

judge were incompetent. The aforementioned is reinforced as the referee stated

that “[t]here is a forum for taking the difference of opinion up [sic] and it's called

an appeal and that's the forum that should have been used. This forum should have

not been used for the language used in those exceptions.” The problem with the

45

referee’s analysis is that the forum was proper as the filing and hearing on

exceptions is an appellate procedure as explained in Anderson. See Anderson at

50-51. Further, Respondent was required to raise all issues that could be argued at

the trial level or same are deemed waived at the appellate level. See Sanford v.

Rubin at 137.

The case at bar also assists in informing the public of problems with judge

Bronson and magistrate Hinds that legitimately deserve attention as their repeated

errors based on a lack of competence impacts thousands of lives of everyday

citizens who are unaware that their due process rights are being violated. It is an

attorney’s duty to inform the public of problems in the legal system, especially

when the circumstances have grave consequences, and attempting to silence

attorneys would have a chilling effect on informing the public.

An analysis of bar counsel’s statement that the “defense of truth is not

applicable in these proceedings” (T-476) and the referee’s findings countenancing

same mean that the objectively reasonable basis for believing the veracity and

accuracy of the statements are of no import in a disciplinary hearing for a violation

of rule 4-8.4(d) since there is not a safe harbor provision for the truth. The

aforementioned analysis of excluding a safe harbor provision for the truth makes

rule 4-8.4(d) unconstitutional as drafted and applied as it clearly runs afoul of the

First and Fourteenth Amendments, Art. I, § 4 of the Florida constitution, and

46

Garrison as explained in Issue I.

Based upon Ray’s objectively reasonable standard, O’Mara’s statement of

expected competence, R. Regulating Fla. Bar 4-1.1 and 4-8.4(d), and Fla. Stds.

Imposing Law. Sancs. IIIA, 4.53, count II should be dismissed as Respondent’s

statements were reasonable, there was not any evidence that the statements were

unreasonable, and the referee failed to analyze the rule and evidence using the

proper standard established in Ray.

Issue III

Respondent’s due process rights were violated when he was deprived of the opportunity to be fully heard in the presentation of his defenses and evidence and when costs were taxed against him without the opportunity to be heard. The Fifth Amendment’s due process clause states that no person shall “be

deprived of life, liberty, or property, without due process of law.” The Fourteenth

Amendment also provides due process protection from state action by stating that

no State shall “deprive any person of life, liberty, or property, without due process

of law.” Similarly, Article I, § 9 of the Florida constitution provides that “[no]

person shall be deprived of life, liberty, or property, without due process of law.”

The fundamental requirement of due process of law is the opportunity to be heard.

Greene v. Lindsey, 456 U.S. 444, 449 (1982), State Plant Bd. v Smith, 110 So.2d

401, 407 (Fla. 1959), and Tomayko v. Thomas, 143 So.2d 227, 230 (Fla. 3d DCA

1962). The opportunity must be full, fair, and not illusory in nature. State Plant

47

Bd. at 407 and Tomayko at 230. It is a denial of due process when a party is not

afforded a chance to fully present his or her case including defenses. See Tomayko

at 230.

A proposed final judgment by a party should be used as a starting point, but

can not “substitute for a thoughtful and independent analysis of the facts, issues,

and law by the trial judge.” See Perlow v. Berg-Perlow, 875 So.2d 383, 389-390

(Fla. 2004). The practice of entering verbatim orders without an editing change is

frowned upon as there is an appearance that the judge did not exercise his or her

independent judgment in the case. See id. The fundamental principle of due

process of law demands notice and an opportunity to be heard before a final

judgment is entered. Cavalier v. Ignas, 290 So.2d 20, 21-22 (Fla. 1974).

In Tomayko, the appellant was served with a rule nisi and she made a special

appearance to attack the jurisdiction of the court on constitutional grounds. Id. at

229. The trial court struck the special appearance and entered an order against her.

Id. The trial court failed to allow the appellant an opportunity to file her defenses

in writing. Id. at 230. The appellate court reversed with the following holding:

The protection afforded by the constitutional guarantee of due process of law extends, of course, into every type of legal proceeding. In observing due process of law, the opportunity to be heard must be full and air [sic], not merely colorable or illusive. Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483. Id.

In Perlow, the petitioner inquired whether he should prepare a proposed

48

final judgment and the trial court stated that it would not have to prepare a final

judgment and that a staff member or legal aide would draft the final judgment if

the case was decided in his favor. See Perlow at 385. On the following day, the

respondent’s attorney submitted a proposed final judgment and the court inquired

if petitioner had a proposed final judgment. Id. Petitioner inquired if he could

submit one later that day and the court reaffirmed his previous statement that a

staff member or legal aide would draft the final judgment if the case was decided

in his favor. Id. The trial court entered the respondent’s 25 page proposed final

judgment without a single modification. Id. at 386. The judgment was wholly

one-sided against the petitioner and was signed within two hours of the closing

arguments. Id. The appellate court affirmed the trial court and held that it was not

an improper delegation of the trial judge’s role when it adopted respondent’s

verbatim proposed final judgment. Id.

On petition, the petitioner argued that the trial judge failed to exercise

judicial independence in entering the verbatim proposed final judgment. Id. at 387.

This Court held that the trial court could request proposed final judgments, but

there was an appearance of impropriety as the trial judge failed to afford petitioner

an opportunity to object and that the final judgment was entered verbatim without a

single editing change although there were not any findings of fact or conclusions of

law stated on the record. Id. at 389. The ultimate holding and guidance for the

49

courts was that proposed final judgments must serve as a starting point and that a

judge’s adoption of a verbatim proposed final judgment submitted by one party

presents the appearance that the trial judge did not exercise his or her independent

judgment in the case.” See id. at 390.

In a similar situation, the Fourth district reversed the trial court when it

entered an order without making a single editing change. See Ross v. Botha, 867

So.2d 567, 570 (Fla. 4th DCA 2004). In reversing the verbatim order, the district

court held, inter alia, that “[i]t is also difficult to believe, on such fact-intensive

issues as presented here, that an attorney can be so omniscient as to the court’s

findings that they could be entirely correct without a single edit where the court

made no rulings in open court.” See id. at 572.

The Fifth district has also continuously ruled that “it is well established that

trial courts are admonished for the verbatim adoption of proposed orders drafted by

litigants. . . A judge’s practice of delegating the task of drafting sensitive,

dispositive orders to counsel, and then uncritically adopting the orders nearly

verbatim would belie the appearance of justice.” Corp. Management Advisors v.

Boghos, 756 So. 2d 246, 248 (Fla. 5th DCA 2000).

In Cavalier, the petitioner and respondent were partners in purchasing and

operating an apartment. See id. at 21. The agreement called for an equal

$5,000.00 contribution of funds from each person, but respondent ended up paying

50

all of it; however, petitioner’s efforts caused the rental income to double. See id.

The petitioner filed a complaint which sought a partnership accounting with a

temporary enjoinder. See id. At the trial, the trial court granted a continuance and

allowed respondent to file an amended complaint which was different from the

earlier amended complaint since it sought to rescind and dissolve the partnership

and extinguish petitioner’s interests. See id. Final judgment was entered for the

respondent without notice or the cause being set for trial. See id. at 22. The

district court affirmed. See id. In quashing the district court’s opinion and setting

aside the final judgment, this Court held that:

Such a course of action directly contravenes the due process requirements set forth in the cases cited above, which requirements we hereby reaffirm. Due process of law requires that notice be given and that petitioner be afforded an opportunity to be heard before entry of a final judgment. Id.

In the case sub judice, Respondent was charged with violating rule 4-8.4(d)

and his Answer presented the defenses of truth, freedom of speech, freedom to

contract, lack of clarity of the order, and verification of pleadings. (R-18).

Respondent based his truth defense on his knowledge and application of the law

and whether or not the magistrate and judge Bronson demonstrated the requisite

level of knowledge compared to the mandates of the statutes, rules, and caselaw.

In order to demonstrate their competency or lack of competency based on an

objective analysis, Respondent sought to question the magistrate and judge

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Bronson about the legal bases and reasoning for their decisions over an expanse of

time and compare the decisions to the controlling rules, statutes, and caselaw. The

referee actively precluded Respondent from fully presenting and demonstrating his

truth defense by limiting his questioning of the magistrate and the judge when it

came to their knowledge of the rules, statutes, and caselaw in their own orders,

final judgments, and recommendations.

The referee actively engaged in several limitations of examination and

demonstration of the truth defense including with magistrate Hinds (T-81-83, 251-

254; A-88-92), judge Bronson (T-200-204; A-93-95), bar counsel (T-405-406; A-

96-97), and Respondent (T-425-426, 441-443; A-98-99). Further, the referee

prevented introduction into evidence of some of the court documents that

Respondent relied upon and formed part of the basis of his defense. (T-465-468;

A-100-101). The referee’s lack of understanding of the relevance of the evidence

to be introduced directly prevented Respondent from affording him a chance to

fully present his case and defenses. More specifically, Respondent was not

allowed to present his evidence that clearly showed that judge Bronson and

magistrate Hinds did not know that applicable law, refused to follow it, or was

indifferent to same by evaluating their actions across a continuum of time.

The truth defense, knowledge for the basis of the truth, and intent can be

gleaned in several manners and revolve around the actual experience(s) of the

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person making the statement. Respondent’s uncontroverted testimony

demonstrated that he was actively involved in each case whether or not he made an

official appearance of record. Respondent, like any other person, derived his

knowledge of the magistrate and the judge over a period of time -- in this case,

over approximately a six year period. Therefore, to demonstrate his truth defense,

he would obviously have to draw from his complete knowledge over the years.

The referee’s position was that Respondent’s knowledge and other bases for

presenting his truth defense would be limited to cases that were directly mentioned

in the complaint, that were appealed, that he felt were timely, or that an official

notice of appearance was filed regardless if Respondent had interviewed the client

and researched the case filings, orders, recommendations, and associated statutes,

rules, and caselaw for same.

The referee’s preclusion and restriction of Respondent from presenting the

historical context and basis for his knowledge eviscerated the truth defense and

violated his due process rights since he was not given a full and fair opportunity to

be heard that was not illusory in nature. This case is similar to Tomayko as the

referee herein, like the trial court therein, precluded a full and fair opportunity to

be heard on the legal defenses.

At the March 2, 2011 hearing, during summation bar counsel submitted

caselaw and requested permission to fax them to the referee. (T-469). The referee

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stated that bar counsel could fax them to his office. (T-469). When Respondent

inquired as to the submission of his caselaw, the referee stated that the cites were

good enough because they were in the record and “we’re going to have the record

transcribed, so that’s fine.” (T-527). The statement by the referee that “we’re

going to have the record transcribed” clearly means that the record and caselaw

would be reviewed prior to entering the Report of Referee. The record was not

ordered transcribed until same was done by Respondent. (A-67).

At the April 27, 201l sanction hearing, the referee ordered bar counsel to

prepare the order based on previously made findings and circulate it to Respondent

for review. (T-552-553). On May 10, 2011, bar counsel emailed her 24 page

proposed Report of Referee, Request for Payment of Disciplinary Costs, and

Statement of Costs to the referee without a letter or explanation. (A-25-53).

The proposed Report was emailed to the Referee with the bar’s Statement of

Costs and Request for Payment of Disciplinary Costs on May 10, 2011. (A-25-

53). The proposed Report had a section titled Statement of Costs and Manner in

Which Costs Should be Taxed with an amount that matched the bar’s Statement of

Costs. (A-48, 50). The Request for Payment of Disciplinary Costs and Statement

of Costs did not include a ledger, receipts, canceled checks, and/or invoices to

support the alleged costs for items A, B, and D. (A-50-53). On May 20, 2011,

Respondent filed his Notice of Objection pursuant to rule 3-7.6(q)(5) based on the

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Statement and Requests failure to include a ledger, receipts, canceled checks,

and/or invoices to support the alleged costs for items A, B, and D and that it was

impossible for the Respondent, court, or referee to determine the reasonableness or

necessity of the alleged costs without a detailed itemization of same. (A-56-61).

Unbeknownst to Respondent, the referee had signed and served the proposed

Report verbatim on May 17, 2011 prior to the expiration of the time allowed by

rule 3-7.6(q)(5). (A-23). The referee filed the Report the next day on May 18,

2011. (A-69).

On May 23, 2011, the bar served an Amended Request for Payment of

Disciplinary Costs and Amended Statement of Costs which claimed a lower

amount. (A-62-65). On May 25, 2011, Respondent served his Notice of Objection

of the Amended Statement of Costs on the same basis as his original Notice of

Objection. (A-60-65).

The proposed Report was adopted by the referee without making a single

editing change without allowing adequate time for Respondent to review and

object to the contents thereof since the Report contained a payment of costs

provision based upon the bar’s Statement of Costs and rule 3-7.6(q)(5) allowed ten

(10) days to object to same. (A-1-24, 26-49, 69).

Due process for the taxation of costs is provided in R. Regulating Fla. Bar 3-

7.6(q). See R. Regulating Fla. Bar 3-7.6(q). The referee is also given specific

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directions on how and when the report should be filed and costs should be taxed in

the Referee Manual Revised May 2010. First, the “referee shall provide written

notice to the parties that the report of referee has been completed.” Referee

Manual Revised May 2010. After service of the notice, “a party shall file a

statement of costs incurred in a referee proceeding and a request for payment of

same within 15 days after written notice from the referee that the report of referee

has been completed or at the time that a guilty plea for consent judgment is filed.”

R. Regulating Fla. Bar 3-7.6(q)(5). Next, “the party from whom costs are sought

shall have 10 days from the date the motion was filed in which to serve an

objection.” R. Regulating Fla. Bar 3-7.6(q)(5). “The report of referee cannot be

filed with the supreme court until after the time period for filing a motion to assess

costs by the prevailing party and the objection has run.” Referee Manual Revised

May 2010. This appears to be a very straightforward methodology of ensuring due

process, but it never occurred in the case at bar and Respondent was denied his due

process rights.

The referee never provided written notice to the parties that the report of

referee had been completed as mandated by Referee Manual Revised May 2010.

Further, the referee taxed costs in the bar’s favor and did not wait the “10 days

from the date the motion was filed in which to serve an objection” as required by

R. Regulating Fla. Bar 3-7.6(q)(5) and Referee Manual Revised. Also, the referee

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filed the Report prior to the expiration of “the time period for filing a motion to

assess costs by the prevailing party and the objection has run” as mandated in

Referee Manual Revised May 2010.

Additionally, the Report failed to comply with the Florida Standards for

Imposing Lawyer Sanctions III which require the consideration of “each of these

questions before recommending or imposing appropriate discipline:

(1) duties violated;

(2) the lawyer’s mental state;

(3) the potential or actual injury caused by the lawyer’s misconduct;

(4) the existence of aggravating or mitigating circumstances.”

The Report also stated that Respondent is 40 years old although same is factually

incorrect. Additionally, the Report found that Respondent ignored judge

Bronson’s order to redraft the exceptions without any findings or evidence that

Respondent knew exactly which language was to be removed from the original

exceptions.

The Report lacks legal analyses of the defenses based upon the rules and

caselaw or evidence to support a finding of guilt. A referee who is a chief judge

should be familiar with the rules of drafting and filing reports and the legal

analysis of the facts of the case and should not delegate same to bar counsel. The

defenses presented by Respondent were very detailed and included supporting

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caselaw, but the Report failed to specifically address why the defenses’ legal

underpinnings did not apply. At a minimum, the objectively reasonable analysis,

First Amendment, Fourteenth Amendment, Article I, § 4, § 9, § 10, Rule 4-8.4(d)’s

knowingly prong, taxation of costs, truth defense, verified pleadings, contracting,

and lack of clarity of the order should have been legally analyzed and supported by

detailed findings based on competent substantial evidence. The absence of a

detailed legal analysis and the due process violations demonstrate that the referee

delegated the task of drafting a sensitive dispositive Report to counsel and then

uncritically adopted the Report verbatim and same belies the appearance of justice.

The case sub judice is one in which the report should be vacated and the

charges dismissed as the referee failed to adhere to the ruling of Perlow, Corp.

Management Advisors, and Ross as it adopted the proposed report verbatim

without any demonstration of thoughtful and independent analyses of the facts,

issues, and law where the failure to demonstrate same belied the appearance of

justice.

Respondent’s Fifth and Fourteenth Amendment’s and Article I, § 9's due

process clauses have been violated as Respondent was not afforded a chance to

fully present his case and defenses and had costs taxed against him without a

chance to be heard. Pursuant to the Fifth and Fourteenth Amendments, Article I, §

9, Greene, State Plant Bd., and Tomayko, this Court should find that Respondent’s

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due process rights were violated and vacate the Report, recommended discipline,

and the taxation of costs.

Issue IV Parties are free to contract and the right is only limited by the justifiable needs of the public, health, safety or welfare. The Florida constitution protects the right to contract by stating that no “law

impairing the obligation of contracts shall be passed.” Article I, § 10. Parties are

free to contract and the right should only be limited to protect the needs of the

public, health, safety, or welfare. Larson v. Lesser, 106 So.2d 188, 191-192 (Fla.

1958). Although there is no such absolute right to freedom of contract, freedom is

the general rule and restraint should be the exception. Id. Rules Regulating the

Florida Bar 4-1.8(e) prohibits providing financial assistance to a client in

connection with a pending or expected matter, except that “(1) a lawyer may

advance court costs and expenses of litigation, the repayment of which may be

contingent on the outcome of the matter; and (2) a lawyer representing an indigent

client may pay court costs and expenses of litigation of behalf of the client.” R.

Regulating Fla. Bar 4-1.8(e).

In Larson, the appellee was a public adjuster who advertised his business

publicly and engaged in direct solicitation. Larson at 187. The appellee filed a

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declaratory action seeking to declare § 636.261 unconstitutional as it had the effect

to limit his business contrary to the Florida constitution and the United States

Constitution. Id. at 187-188. The appellant argued that the statute was merely a

reasonable regulation and use of the police power. Id. at 187. The chancellor held

the statute unconstitutional. Id. The chancellor’s reasoning was that the court

must consider the practical impact of the application of the statute on a citizen’s

constitutional rights rather than the strict letter of the law. Id. at 191. The

chancellor further reasoned that a statute may be properly declared unconstitutional

when, under the guise of regulation, a statute’s practical impact is to impede the

operation of a lawful business. Id. In affirming the finding of the

unconstitutionality of the statute, this Court held:

We ourselves have held that while there is no such thing as an absolute freedom of contract, nevertheless, freedom is the general rule and restraint is the exception. Any restraints imposed by legislation on the right to contract must not be arbitrary or unreasonable. The right to make contracts, whether for the acquisition of property or for personal employment, is an aspect of private property which should not be struck down or arbitrarily restrained unless such restraint be reasonably justified by the needs of the public health, safety or welfare. Id. at 191-192.

In the case at bar, Respondent was charged with violating R. Regulating Fla.

Bar 4-1.8(e) and the Report found that there was clear and convincing evidence of

same as it states that “if the funds received by respondent were his fee, then there is

no question respondent advanced funds to his client. . . . If, on the other hand,

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some of the funds received by respondent were to be used for a specific purpose,

then those funds should have been placed in respondent’s trust account to be used

only for the purpose for which they were intended. Based upon the testimony and

evidence, it is clear no funds were placed in the respondent’s trust account.” (A-5-

6). However, the Report contradicts itself and identifies the real nature of the

funds. The money was given by Jensen’s father for Jensen’s benefit and was

expected to be “rapidly deployed” due to Mr. Jensen’s financial situation and to get

Mr. Jensen out of jail when he was held in contempt for non-payment of child

support.” (A-5). The two statements can not be squared as demonstrating clear

and convincing evidence when the referee found that there was a basis for both

positions. The Report appears to select one and state that there was clear and

convincing evidence that demonstrated that the funds were advanced to the client

and they were not a court cost or expense of litigation as required by the Rules

Regulating the Florida Bar.

The Report does not reflect the evidence and does not address the fact that

Respondent treated the funds as a differentiated retainer where $3,000 remained in

cash and was subject to claim by Respondent. (T-248). Further, the Report

erroneously states that trust funds had to be kept in the trust account as rule 5-

1.1(a)(3) specifically states that trust funds may be stored in a safe deposit box.

Considering the aforementioned, the bar failed to preclude the funneling of funds

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through the convenience of the operating account and replacement with the funds

held as cash. It should be noted that rule 5-1.1(a)(1) specifically envisions funds

being used for “fees, costs, and expenses” and does not preclude the payment of a

purge amount (fees for the GAL on behalf of the children) when considering rule

5-1.1(b)’s statement that “money or other property entrusted to an attorney for a

specific purpose, including advances for fees, cost, and expenses, is held in trust

and must be applied only to that purpose.” Emphasis added.

The rule does not preclude funds from being used for other purposes as

directed by the party giving the funds and the other party holding the funds.

Neither rule 4-1.8(e) nor 5-1.1(b) preclude the short-term utilization of operating

funds and a subsequent reclamation of same from a cash amount. Further the rule

is unconstitutionally vague as explained in Issue I. Since the “litigation costs and

expenses” are not defined by the rule, it makes sense that the parties are free to

define what constitutes same.

The funds in the instant matter were given by Mr. Jensen’s father, who was

not a party to the action, with the intent of Respondent utilizing same as he saw fit

to protect his son, Michael Jensen. (A-5). Some of the funds were placed in the

operating account and some were held in cash. Respondent specifically advanced

funds that his father gave from his operating account, with the ability to recover

same from the amount held in cash, for the specific purpose of getting Mr. Jensen

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out of jail -- a purpose that was readily acknowledged in the Report’s findings and

agreed to by Jensen’s father and Respondent. (A-5).

In the instant case, the bar has failed to prove by clear and convincing

evidence that Respondent violated rule 4-1.8(e) as it failed to prove: (1) that a

contract existed between Respondent and his client, and if so, the nature of the

contract; (2) the funds were advanced to the client without the necessity of

repayment; (3) that the funds were not utilized as mandated in accordance with rule

4-1.8(e); (4) that the contractual relationship between Mr. Jensen’s father and

Respondent for payment of any and all of his son’s legal expenses was prohibited

by rule 4-1.8(e); and, if so, (5) that such prohibition does not run afoul of the Fifth

and Fourteenth Amendments and Article I, § 9 and § 10, and Larson.

There is no evidence to demonstrate that Respondent advanced his client

funds in violation of rule 4-1.8(e) as alleged by the bar and stated in the Report; but

rather, Respondent utilized the father’s $3,000.00 held in cash and advancing same

on the father’s behalf by funneling same through his operating account with the

ability to immediately reclaim same. Further, the rule does not preclude the

advancement of funds for any purpose to a client on behalf of third parties with the

requirement of repayment. Therefore, count I should be dismissed as the bar has

failed to prove by clear and convincing evidence that Respondent violated rule 4-

1.8(e) and the referee’s finding that there was clear and convincing evidence is

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belied by the absence of competent substantial evidence that Respondent violated

rule 4-1.8(e).

This case is similar to Larson as the issues revolve around whether one rule,

4-1.8(e), precludes a lawful engagement of a contract for payment under a different

rule, 5-1.1(b), or under general contracting terms, where funds or services are

advanced or provided to a third party client pursuant to an agreement.

The practical impact of applying a rule that prevents or limits the utilization

of funds for an agreed upon purpose would have a chilling effect on attorneys

taking cases where a third party is paying with directions on how to deploy the

funds and could prevent many people from being represented.

Rule 4-1.8(e), as drafted and enforced herein is unconstitutional as it is

vague, overbroad, subject to capricious and arbitrary enforcement, and violates

Article I, § 10. This Court should find that Respondent did not violate rule 4-

1.8(e) as there is no competent substantial evidence to support same as parties have

a right to contract unless there is a specific restraint reasonably justified by the

needs of the public health, safety or welfare.

Issue V

Verified pleadings and affidavits are the words of the person verifying or swearing to the statements. Verified pleading by their very nature are personal to the person swearing to

them. Black’s Law Dictionary, Seventh Edition, defines “affidavit” as “a voluntary

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declaration of facts written down and sworn to by the declarant before an officer

authorized to administer oaths” and “verification” as “a formal declaration made in

the presence of an authorized officer, such as a notary public, by which one swears

to the truth of the statements in the document.” The purpose of an attorney

drafting an affidavit or verified pleading is to reflect the intention of the person

signing the document. See Schroeder v. Gebhart, 825 So.2d 442, 445 (Fla. 5th

DCA 2002) and Resolution Trust Corp. v. Bright, 6 F.3d 336, 339-340 (C.A. 5

(Tex.) 1993). An attorney who fails to draft an affidavit or verified pleading in

accordance with the affiant’s intentions is subject to sanctions. See Resolution

Trust Corp. at 339-340.

In Resolution Trust Corp. (RTC), two RTC attorneys interviewed a bank

official about the calculations used to prepare a report on her employer bank’s

financial health. See id. at 338. After the interview, the attorneys requested the

bank official to sign an affidavit that contained information that she had neither

stated nor supported. See id. at 338-339. The affiant made semantical and

substantive changes, was questioned about her views of the changes and whether

her views could match the attorneys’, and whether she would revise her statements.

See id. at 339. The affiant declined and the attorneys incorporated all of the

affiant’s changes into the final draft that she signed. See id. A motion for

sanctions was sought based on the RTC attorneys’ conduct of aggressively

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questioning the affiant and asking her if she could see things their way. See id. at

339-340. The district court granted the motion for fees and disbarred the attorneys

from practicing before him. See id. at 340. In reversing, the circuit court

concluded that attorneys could be sanctioned for including statements that were not

those of the affiant, but a determination of sanctions must be based on the specific

facts of the case and whether the statements had a factual basis or were known to

be false. See id. at 340-341. The attorneys, while aggressive in advocating their

position, drafted the affidavit as intended by the affiant and could not be

sanctioned for same. See id. at 341-342.

In the case at bar, it is uncontroverted that Darrell Matthew signed the

verified motion and directed Respondent on the concepts that he wanted included.

(T-341-346). Matthew testified that the language that he wanted to use was

rejected by his counsel, Respondent, as he found the words to be vulgar and

inappropriate. (T-341-346). However, upon a detailed review, with drafting and

redrafting, Matthew was satisfied with the wording and adopted same as his own

by signing the document and affirming it under oath. (T-341-346).

The bar and referee’s positions are that the contents and words of the

verified motion are Respondent’s since he was the drafter and that said words did

not constitute legal argument. Resolution Trust Corp., is instructive and

demonstrates that the bar and referee’s positions are in error as the purpose of a

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verified motion or affidavit is to accurately reflect the intent of the affiant. It is

uncontroverted that Respondent accurately reflected the intent of the affiant as

demonstrated by Matthew’s testimony and the verified motion. Further, neither the

bar, referee, nor report cited to any rule in the Rules Regulating the Florida Bar

that stands for the proposition that a verified motion constitutes the attorney’s

words and adoption of same or that there is a rule against an attorney wholly

supporting his or her client’s position and/or words. In the absence of a specific

rule prohibiting an action, the attorney has discretion to act or not to act, and “no

disciplinary action should be taken when the lawyer chooses not to act or acts

within the bounds of such discretion.” See Rules. Reg. Fla. Bar. Chapter 4,

preamble, a lawyer’s responsibilities. Improperly restraining an attorney from

drafting a document in accordance with the client’s desires violates the client’s

First Amendment right. Further, even if the words are deemed to be Respondent’s,

they are truthful utterances and the analyses of issues I and II apply.

Pursuant to the First Amendment, Article I, § 4, Resolution Trust Corp., and

Rules. Reg. Fla. Bar. Chapter 4, the Report should be vacated and the charge

involving Matthew’s Verified Motion to Disqualify should be dismissed.

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Conclusion

The Report should be vacated and the charges against Respondent should be dismissed as: (1) Rule 4-8.4(d) is unconstitutional pursuant to the First and Fourteenth Amendments and Article I, § 4 because it infringes on the freedom of speech as it is vague, subject to multiple interpretations, subject to arbitrary and capricious enforcement, and fails to have a safe harbor provision for the truth; (2) Respondent’s statements are not subject to discipline pursuant to rule 4-8.4(d) as they are bottomed on an objectively reasonable basis and there was no evidence presented that Respondent had the requisite mens rea to violate the knowingly prong of the rule; (3) Rule 4-8(e) is unconstitutionally vague and unreasonably limits an attorney’s right to contract with third parties in violation of Article I, § 10; (4) Respondent’s Fourteenth Amendment and Article I, § 9 due process rights were violated when he was precluded from presenting his case and defenses in a meaningful fashion and costs were taxed against him without the opportunity to be heard; (5) the verified pleading was not Respondent’s; (6) the referee failed to exercise and demonstrate impartiality and independence in the verbatim entry of the proposed report; and (7) the referee failed to comply with the mandatory procedural rules in submitting the report and taxing costs. WHEREFORE, Carlton Pierce, requests this Court to:

A. Vacate the Report, recommended discipline, and taxation of costs;

B. Dismiss all charges; and,

C. Grant such other and further relief as is just and equitable.

Certificate of Service I certify that a copy hereof has been furnished to Keshara D. Davis, Esquire, 1000 Legion Place, Suite 1625, Orlando, FL 32801-5200 by U.S. mail on November 4,

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2011.

Certificate of Compliance I certify that this brief is computer-generated in Times New Roman 14-point font and complies with Fla. R. App. P. 9.210.

Carlton Pierce, Esquire

Carlton Pierce, P.A. P.O. Box 223723

West Palm Beach, FL 33422-3723 Ofc.: (407) 345-5258 Fax: (407) 536-4333 E-mail: [email protected]

FBN: 0610879