IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR … · meetin g and a lle ged condu ct giv ing rise to the Compla int in thi s case. The Repor t of the Referee issued on September

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,Complainant,

Supreme Court Case No.: SC11-1678v.

The Florida Bar File No.: 2010-00, 626 (14)JEAN MARIE DOWNING,

Respondent.

RESPONDENT’S ANSWER BRIEF

AND

CROSS INITIAL BRIEF ON THE MERITS

RHONDA S. CLYATTFlorida Bar No. 346081Post Office Box 2492Panama City, Florida 32402Telephone: (850) 872-1031Facsimile: (850) 872-1495Email: [email protected] for Respondent

Electronically Filed 07/31/2013 08:26:47 PM ET

RECEIVED, 7/31/2013 20:28:33, Thomas D. Hall, Clerk, Supreme Court

ii

TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Summary of Argument - Answer Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Argument - Answer Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

THE COURT SHOULD NOT IMPOSE A THIRTY DAYSUSPENSION AS DISCIPLINE AGAINST RESPONDENT . . . . . . 15

THE REFEREE’S REPORT CLEARLY STATES THAT THEPETITIONER SHALL BE ASSESSED TAXABLE COSTS ANDTHERE IS NO BASIS IN THE LAW FOR A REVERSAL OF THATASSESSMENT OF THIS AWARD OR A REMAND FORCLARIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Summary of Argument - Cross Initial Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Argument - Cross Initial Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

THE REFEREE ERRED IN DENYING RESPONDENT’SMOTION TO DISMISS WHERE THE FLORIDA BAR’SCOMPLAINT WAS FILED AUGUST 30, 2011, MORE THANSIX YEARS AFTER THE ACTIONS GIVING RISE TO THISCOMPLAINT OCCURRED IN AUGUST 2005 AND WHEREPROPER NOTICE AS TO THE ALLEGATIONS BEFORE THE

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COMMITTEE WAS NOT PROVIDED TO RESPONDENT. . . . . . . . 24

RESPONDENT DID NOT COMMIT THE VIOLATIONS ASALLEGED AND THE REFEREE’S FINDINGS SHOULD HAVEBEEN NO MISCONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Certificate of Type Size, Style and Anti-Virus Scan . . . . . . . . . . . . . . . . . . . . . . 33

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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TABLE OF AUTHORITIES

Cases Pages

Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla.1989) . . . . . . . . . . . . . . . . . . . . . 15

Fla. Bar. v. Committe, 916 So. 2d 741 (Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 29

Fla. Bar v. D'Ambrosio, 25 So. 3d 1209, 1216 (Fla. 2009) . . . . . . . . . . . . . . 15, 27

Murrell v. Fla. Bar, 122 So. 2d 169, 174 (Fla. 1960) . . . . . . . . . . . . . . . . . . . . . . 25

Fla. Bar v. Ratiner, 46 So. 3d 35, 39 (Fla.2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005) . . . . . . . . . . . . . . . 15, 27

Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla.1999) . . . . . . . . . . . . . . . . . . . . . . 15

Fla. Bar. v. Walter, 784 So. 2d 1085 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 25

Fla. Bar v. Winters, 104 So. 3d 299, 301 (Fla. 2012) . . . . . . . . . . . . . . . . . . . 15, 27

Rules Regulating the Florida Bar

Rule 3-5.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,16,17

Rule 3-7.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

Rule 3-7.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Rule 4-3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16, 30

Rule 4-1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rule 4-1.2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

v

Rule 4-1.4(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rule 4-1.16(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 16

Rule 4-4.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rule 4-8.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rule 4-8.4(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

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JURISDICTION

Pursuant to Article V, Section 15 of the Florida Constitution, the Supreme

Court of Florida has jurisdiction over the parties and this cause now pending before

it.

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PRELIMINARY STATEMENT

Herein, the Respondent, Jean Marie Downing, will be referred to as

“Respondent,” “Downing,” or by name. The Complainant, The Florida Bar, will be

referred to as “the Bar,” “TFB,” or by name.

References to the Transcript of the Final Hearing on June 21, 2012, which has

been filed as part of the record in this case shall be designated as “TR.” followed by

the page number and line number, e.g. “(TR. 215, 6-12).”

References to the Report of the Referee, dated September 25, 2012, shall be

designated as “ROR” followed by the page number and paragraph number as

appropriate, e.g. “(ROR 12, ¶ 12).”

References to exhibits offered in evidence will be identified by the party

introducing it into evidence, the abbreviation “Ex.” followed by the appropriate

exhibit number. The names of the parties will be abbreviated (Respondent = R and

Complainant = TFB). Therefore, Respondent’s Exhibit No. 12 would be “(R. Ex.

12)” and Complainant’s Exhibit 1 would be “(TFB. Ex. 1).”

Reference to the Appendix will be identified by “A” followed by the page

number. References to the Index to the Pleadings will be referred to as “Index”

following by the index number of the document.

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STATEMENT OF THE CASE

In June 2005, the original complainant, Grace Gaines, contacted Respondent’s

firm and met with Respondent and her law partner. (Tr. 196, 19-21). A lis pendens

prepared with the signature block of Respondent’s law partner, Rusty Shepard, was

signed by Respondent and filed on or about August 4, 2005. (TFB Ex. 1). Judge

Overstreet granted a motion for Respondent to withdraw in July 2007. (TFB Ex. 8).

Counsel for the opposing party named in the lis pendens and in the litigation

withdrew in May 2008. (TFB Ex. 8). In January 2010, at or about the same time that

her case was dismissed by the Bay County Circuit Court for lack of activity by either

party (TFB Ex. 8), Grace Gaines filed her complaint with the Florida Bar. (R. Ex.

12). Ms. Gaines submitted 24 pages of allegations. (R. Ex. 12). Respondent

requested that the Florida Bar clarify the Rules that she allegedly violated, but also

attempted to respond to the allegations by Grace Gaines. (TFB Ex. 25).

In August 2010, a hearing was held before the local grievance committee and

various Rules Regulating the Florida Bar were cited, including Rules 4-1.1, 4-1.2(d),

4-1.4(a)(5), 4-1.16(a), 4-4.1(a), 4-8.1(a), and 4-8.4(c) although none of these rules

had been enumerated in Grace Gaines’ complaint. The Committee dismissed most

allegations but made a probable cause finding on the allegation that Respondent

violated Rule 4-1.16(a) without further advice as to the specific actions that

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Respondent allegedly committed. At no time prior to the hearing was Respondent

advised as to the specific subsection under which the Florida Bar and Grievance

Committee were proceeding. (TFB Ex. 26). At the hearing, counsel for the

Respondent repeatedly asked for clarification as to what specific behavior had

violated the Rules Regulating the Florida Bar, including 4-1.16(a). The Florida Bar

proceeds against Respondent in this Court upon a Rule not addressed at the August

2010 hearing. Rather a subsequent hearing was conducted without the presence of

the Respondent nor counsel and the Committee added a probable cause finding as to

Rule 4-3.1 regarding Meritorious Claims and Contentions.

More than six years after the alleged misconduct, the Florida Bar filed a

Complaint against Respondent in August 2011, which Complaint filed before this

Court still does not list the specific subsection of Rule 4-1.16(a). (Index to Pleadings,

#1. Complaint, 8/29/11). The Complaint was filed more than six years after the initial

meeting and alleged conduct giving rise to the Complaint in this case. The Report of

the Referee issued on September 25, 2012 and TFB filed a notice of intent to seek

review on November 21, 2012. The Respondent filed a cross petition for review on

December 14, 2012.

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STATEMENT OF THE FACTS

Respondent Downing did not file a lis pendens randomly, against a stranger for

the purpose of harassing that stranger nor against an enemy for the purposes of

harassing that enemy. Respondent testified that the lis pendens was not filed with the

Clerk for the purposes of mis-leading the Court or any other person. Rather, the lis

pendens was filed based upon a legitimate property dispute between her client, Grace

Gaines, who purported to own Amazing Grace Investment and Properties, Inc. and

Gary Smith, who owned JACAM. Whether Ms. Gaines would have prevailed in her

claim is not before the Court, but there was a good faith basis to believe that her claim

was meritorious and that was accepted by the Referee.

The Florida Bar and the Referee both refer to Respondent’s response to the

original complaint filed by Grace Gaines as an admission that Respondent filed the

lis pendens purposefully and knowingly because Ms. Gaines wanted her to do that.

(TFB Ex. 25). However, it is important for this Court to note that Respondent was

replying to an allegation that the client had been unaware of the plan to file the lis

pendens without an accompanying lawsuit. Respondent was not, at that time,

explaining her legal analysis on why she believed that filing a lis pendens when a

civil theft letter is sent is sufficient to comply with the statute. Nor was she

explaining that she had originally drafted a lis pendens that stated that a lawsuit was

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pending or would be pending against Defendant based on the property described in

the lis pendens. The “admission” that the lis pendens was filed knowingly and at the

request of the client is misleading to this Court. That was not the basis for the

Respondent’s belief that it was appropriate to file the lis pendens as it was filed.

Additionally, after it was filed and the named defendant obtained legal counsel, the

Respondent engaged in negotiations to benefit her client. She did not threaten or hold

the property hostage. At all times the Respondent was willing to release the lis

pendens if the opposing party would agree to place the proceeds from any sale or

development of the property went into an escrow account pending the Court’s

determination of the issues in the case.

Turning to the specific allegations before this Court, Respondent did not draft

the lis pendens and her name was not on the signature block. (Tr. 40 1-13). The lis

pendens was prepared by another, but Respondent signed the lis pendens and the

check used to pay the filing fee for the lis pendens. She took full responsibility for

responding to the allegations by Ms. Gaines and by the Florida Bar because she

signed the lis pendens and because the complaint was against her. Notwithstanding

this, it is clear that Respondent’s partner’s name, Rudolph C. Shepard (“Rusty”) was

on the lis pendens that had been prepared by his staff from a form document rather

than using the draft that Respondent had prepared. (Tr. 40, 11-13). The draft that

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Respondent had prepared at the time of the initial meeting in June 2005 with Grace

Gaines and her husband had the wording that a lawsuit had been or would be filed

against the recipient.

With this wording, perhaps the Florida Bar would not be concerned about the

filing of the lis pendens. Nonetheless, Respondent signed it and acknowledged her

responsibility for it at all times.

Counsel for TFB acknowledged in her opening statement that Respondent’s

filing of the lis pendens without an accompanying lawsuit was a “mistake.” Ms.

Klien stated that “...all lawyers make mistakes. All lawyers, you know, don’t have

perfect judgment all the time, but what really bothers me here is that from August

until December when they filed that complaint to discharge the notice of lis pendens,

she knew or should have known she could not keep that lis pendens in place without

a complaint being filed, and she refused to withdraw the notice of lis pendens. That

bothers me more than the fact that she actually filed it without the complaint.” (Tr.

14, 8-20). Therefore, the inquiry before the Referee and before this Court should be

limited to this timeframe. In addition, this Court should note that Counsel for the

Florida Bar, herself, doesn’t believe that all rules should be complied with. During

the hearing, when discussing submission of closing arguments, the Referee stated that

his Report was due “Thirty Days after I conclude the trial . . . .” to which Ms. Klein

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responded: “Well, we don’t follow that.” (Tr. 209, 3-5)

With regard to the filing of the lis pendens, at the same time that the lis

pendens was mailed to Gary Smith a “civil theft demand” letter was also sent to him.

(R. Ex. 1). On August 23rd, after meeting with Gary Smith, his attorney D. Ross

McCloy, made contact with Respondent and also received a copy of the lis pendens

and civil theft demand letter from Mr. Shepard, Respondent’s partner. (Tr. 93, 4-11).

At that time, the thirty-day time for a response to the civil theft allegation was

extended from the original date in the letter for an additional thirty days. (Tr. 93, 20).

On behalf of Grace Gaines, Mr. McCloy was also given copies of checks showing

that they had been deposited into and cleared accounts belonging to Gary

Smith/JACAM, his clients. (R. Ex. 2, Tr. 94, 10).

The Florida Bar’s main concern, voiced by its attorney, was the actions by

Respondent during the time frame from August to December 2005. The testimony

of the witnesses demonstrate that from August until December 2005, the attorney for

Gary Smith/JACAM, Ross McCloy, was in communication with Respondent and her

law partner, Rusty Shepard. (TFB Ex. 3, 4, 5, 6, 7, 11, 12, 14, 15, 16, 17). This

contact continued despite the fact that on September 16, 2005, before the thirty day

time frame in the civil theft letter had expired, Gary Smith administratively dissolved

the company that was the “Plaintiff” listed on the lis pendens. (TFB, Ex. 1, R. Ex.

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18). This was the basis for the dissolution of the lis pendens without a nexus or bond

hearing in January 2006. (TFB Ex. 23, Transcript from hearing on January 27, 2006).

Instead of giving notice of such dissolution on September 16, 2005 when it happened,

Mr. McCloy continued to negotiate on behalf of Mr. Smith. (TFB Ex. 6, letter dated

November 9, 2005). Mr. McCloy knew, or should have known, at that time, that the

lis pendens was a legal nullity. Instead, he continued forward with demanding his

attorney’s fees and filing a complaint seeking compensation for his fees from Grace

Gaines, who had already been an alleged victim of his client, Gary Smith.

Relevant to the issue at hand, however, is that Respondent, in addition to

attempting to remain in contact with Mr. McCloy regarding this case, was tasked with

preparing for a trial in a demanding federal criminal case. The record is clear that

during the time frame that mostly concerns the Florida Bar (September - December

2005) much of the communication was via telephone conferences with Respondent’s

partner, Rusty Shepard, who was handling this case with input from Respondent. Mr.

Shepard appeared at the hearings on the Gaines case in January 2006 because

Respondent was in Pensacola for a federal sentencing hearing and a pretrial motion

hearing the week of January 4, 2006 and then in trial on a different federal case for

the rest of January.

Both the Florida Bar and the Referee assert to this Court that Respondent never

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filed a lawsuit on behalf of Grace Gaines and her company. That is not true. Despite

the finding of fact by the Referee (ROR, p. 3, ¶ 8) and Complainant’s assertion to the

opposite, (see TFB Initial Brief at page 16) a lawsuit was, in fact, filed with regard

to the filed Notice of Lis Pendens. A “counter-complaint” is one of the pleadings

listed in the Florida Rules of Civil Procedure. A counter-complaint initiates litigation

just as a complaint does. A counter-complaint can survive even if an initial complaint

is dismissed by the initial plaintiff. The party that filed a counter-complaint is a

counter-plaintiff. This was admitted by a witness called by TFB, Ross McCloy, who,

upon questioning by Counsel for TFB, stated that litigation was filed against his

clients, JACAM Corporation and Gary Smith, in “late December 2005 in the form of

a counter-claim to a complaint that [he] had filed to discharge this notice of lis

pendens.” (Tr. 30, 10-17). This is important only as to a finding that there was no bad

faith by Respondent in the filing of the lis pendens. At all times, including during the

first correspondence with Mr. McCloy, the attorney for Gary Smith/JACAM,

Respondent stood ready to file a Complaint on behalf of her client. However, it was

her client’s desire to avoid filing litigation and to negotiate settlement. This is not

extortion. This is not a subversion of the Rules of Procedure or Rules of the Florida

Respondent does not seek to shirk her responsibility nor put this onto Mr. Shepard. 1

Respondent simply wants the Court to understand that there was another attorney involved withthe communication. Therefore, while Respondent was tasked elsewhere the negotiations for theproperty continued. Respondent takes responsibility for her actions in this case.

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Bar. The Respondent’s firm, through Mr. Shepard mostly , was attempting to1

negotiate settlement and protect her client’s rights. In the correspondence to Mr.

McCloy, Respondent and/or Mr. Shepard advised that the lis pendens would be

dissolved if there was a sale pending as long as Mr. McCloy’s clients would agree to

place the proceeds of any sale into escrow pending resolution of the litigation over

the claims of Grace Gaines to an interest in the property or an interest in the

development of the property. (Tr. 150, 9-12). Respondent had discussed with Ms.

Gaines that she may have to post a bond on the lis pendens if it was upheld or was

refiled and Ms. Gaines had advised that she could not afford to post a substantial

bond. (Tr. 150, 13-16).

With regard to whether Respondent was responsible for the case during the

time at issue, the managing partner of her firm testified that both he and Respondent

(along with staff and an investigator) were tied up a majority of the time from August

2005 until December 2005 in preparing for the January trial of Dr. Merrill, who was

indicted by a federal grand jury for numerous counts involving his actions in his

medical practice, including counts involving the death of several patients. (Tr. 79-

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83). Respondent was primarily responsible for coordinating the motion practice of

a federal criminal matter involving “truckloads” of documents and extensive pre-trial

motions and briefs. (Tr. 202, 8-9). The federal case caused Respondent to relocate

her office to Pensacola, along with her other law partner and her paralegal staff, for

the month of January 2006. (Tr. 202, 16-19). Mr. Appleman stated that he was the

litigation specialist, but that Respondent had the primary responsibility for the 30-40

motions, and accompanying memoranda, that were filed prior to the trial. (Tr. 82, 17-

25).

The lis pendens in question had the signature block at the bottom of

Respondent’s law partner. (TFB Ex. 1). It was a common practice in her firm and in

other firms for attorneys to sign for each other on letters or pleadings. As Mr.

McCloy noted, a document is drafted by the person “whose typewritten name is at the

bottom.” (Tr. 88, 11-12).

During the pre-suit negotiations, on November 9, 2005, Mr. McCloy threatened

to seek fees if the lis pendens was not withdrawn. (TFB Ex. 7). However, Mr.

McCloy sought that relief incorrectly without preparing and serving a motion with a

“safe harbor” twenty-one day provision by mistake. In this case, Mr. McCloy’s

mistake in not preparing the documents correctly ultimately caused the Court to deny

his motion for fees and costs even if he may have been entitled to that relief if he had

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followed the proper procedure outlined in the statutes. (TFB Ex. 20). Then, Mr.

McCloy sought relief from the Court for rehearing which caused the Court to vacate

TFB Ex. 20 and deny all relief sought by Mr. McCloy for his client. (R. Ex. 5 and 6).

When Respondent filled out a response to the original complaint filed by Grace

Gaines (R. 12) she was addressing the allegations by a former client who was clearly

disgruntled because she felt that she had spent too much money on the litigation over

the property. And, Grace Gaines had just had her case dismissed. Respondent

addressed the allegations that the client was unaware that the lis pendens was being

filed without a lawsuit attached by stating that the client knew and that this was done

intentionally. Respondent was not, at that time, explaining her legal reasoning to the

Florida Bar. Respondent was responding to the client’s complaints. Respondent

requested that the Florida Bar make the client advise of the specific rules she had

allegedly violated. The Florida Bar declined to do so and Respondent was forced to

respond to 24 pages of rambling complaints by Grace Gaines. It is telling that not one

of Grace Gaines’ complaints made it out of the grievance committee’s probable cause

hearing. Rather, the committee created the violations before this Court itself.

One of the reasons that Respondent filed the lis pendens the same day as the

civil theft notice was due to a prior case of civil litigation where the case had to be

dismissed and refiled because she had filed the lis pendens, lawsuit, and sent the civil

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theft demand letter on the same date. (Tr. 139, 18-25). And during the time that the

property was unprotected by a lis pendens, the opposing party obtained a mortgage

on the property. (Tr. 139, 24-25).

After hearing all of the evidence by the Florida Bar, the Referee issued a

Diversion Recommendation on August 29, 2012, pursuant to Rule 3-5.3(h)(1) to

ascertain whether the parties would agree to Diversion under such Rule. TFB refused

this non-disciplinary action. Thereafter, the Report of Referee was issued on

September 25, 2012, again recommending a non-disciplinary sanction of Diversion.

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SUMMARY OF THE ARGUMENT(Answer Brief)

The Florida Bar seeks to have Respondent suspended from the practice of law

for thirty days. This is a harsh remedy that would not serve the goals of discipline nor

would this harsh remedy fit the facts of this case.

The Florida Bar also seeks to have the Referee clarify his findings as to the

costs in this case. The Referee’s findings as to costs should remain as assessed and

not should not be assessed against Respondent.

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Argument I

THE COURT SHOULD NOT IMPOSE A THIRTY DAYSUSPENSION AS DISCIPLINE AGAINST RESPONDENT

Standard of Review:

Referee’s Recommendation as to Guilt: “The standard of review for a

referee's recommendations as to guilt is whether the referee's factual findings are

sufficient under the applicable rules to support the recommendations as to guilt.”

Fla. Bar v. Winters, 104 So. 3d 299, 301 (Fla. 2012) (citing Fla. Bar v.

D'Ambrosio, 25 So. 3d 1209, 1216 (Fla. 2009); Fla. Bar v. Shoureas, 913 So. 2d

554, 557-58 (Fla. 2005)).

Referee’s Recommendation as to Discipline: “In reviewing a referee's

recommended discipline, the Court's scope of review is broader than that afforded

to the referee's findings of fact because, ultimately, it is our responsibility to order

the appropriate sanction. [citations omitted] However, generally speaking this

Court will not second-guess the referee’s recommended discipline as long as it has

a reasonable basis in existing caselaw and the Standards for Imposing Lawyer

Sanctions.” Id. at 302-03 (citing to Fla. Bar v. Anderson, 538 So. 2d 852, 854

(Fla.1989); Art. V, 15, Fla. Const.; Fla. Bar v. Temmer, 753 So. 2d 555, 558

(Fla.1999); and Fla. Bar v. Ratiner, 46 So. 3d 35, 39 (Fla.2010)).

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Argument:

The Referee in this case did not make a finding of guilt. He diverted

Respondent into a professionalism program based upon his findings of fact and

considerations. The Respondent disagrees with some of the factual findings by the

Court, but Respondent submits that the harshest finding of guilt with the facts in

this case is not more than minor misconduct, as recommended by the Referee

below.

Where Respondent’s conduct is not more than minor misconduct, this Court

should not sanction Respondent to a thirty (30) day suspension despite the Florida

Bar’s request that this Court do so. The Florida Bar seems to disregard the

Referee’s position that he has diverted this case prior to a finding of guilt in its

argument.

While the Referee may not have cited to case law or Florida Standards for

Imposing Lawyer Sanctions, he gave sufficient reasons for a non-disciplinary

sanction under Rule 3-5.3(h)(2). The Referee did not conduct a mitigation or

disciplinary hearing either but the Florida Bar did not object to that.

The Referee did not make a finding that Respondent violated either Rule 4-

1.16(a)(1) nor Rule 4-3.1 in his Report nor at the hearings on this case. In fact,

during the trial, the Referee stated that he had “significant questions about whether

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facts support that charge [that Respondent should have withdrawn from

representation of Gaines].” (Tr. 194, 20-22). And, then, upon his consideration of

all the evidence and the law presented by both parties, the Referee did not make a

finding of guilt. The Referee stated that “the conduct alleged to have been

committed is not more serious than minor misconduct.” The Referee is quoting out

of Rule 3-5.3 and refers Respondent to a practice and professionalism

enhancement program. The relevant portions of this Rule provide:

(a) Authority of Board. The board of governors is hereby authorizedto establish practice and professionalism enhancement programs towhich eligible disciplinary cases may be diverted as an alternativeto disciplinary sanction. (b) Types of Disciplinary Cases Eligible for Diversion. Disciplinarycases that otherwise would be disposed of by a finding of minormisconduct or by a finding of no probable cause with a letter ofadvice are eligible for diversion to practice and professionalismenhancement programs.*** (h) Diversion at Trial Level. (1) Agreement of the Parties. A referee may recommenddiversion of a disciplinary case to a practice and professionalismenhancement program if the bar approves diversion and therespondent agrees. The procedures for approval of conditional pleasprovided elsewhere in these rules shall apply to diversion at the triallevel. (2) After Submission of Evidence. A referee may recommenddiversion of a disciplinary case to a practice and professionalismenhancement program if, after submission of evidence, but before afinding of guilt, the referee determines that, if proven, theconduct alleged to have been committed by the respondent is notmore serious than minor misconduct.

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*** (i) Effect of Diversion. When the recommendation of diversionbecomes final, the respondent shall enter the practice andprofessionalism enhancement program(s) and complete therequirements thereof. Upon respondent’s entry into a practice andprofessionalism enhancement program, the bar shall terminate itsinvestigation into the matter and its disciplinary files shall be closedindicating the diversion. Diversion into the practice andprofessionalism enhancement program shall not constitute adisciplinary sanction. (j) Effect of Completion of the Practice and ProfessionalismEnhancement Program. If a respondent successfully completes allrequirements of the practice and professionalism enhancementprogram(s) to which the respondent was diverted, the bar’s file shallremain closed.*** (l) Costs of Practice and Professionalism Enhancement Programs.The Florida Bar shall annually determine the costs of practice andprofessionalism enhancement programs and publish the amount of thecosts thereof that shall be assessed against and paid by a respondent.

(Emphasis supplied). Clearly it is the Referee’s position that the Respondent, a

well-intentioned attorney who made a mistake, should not be subject to a

disciplinary record for this isolated incident that occurred over eight (8) years ago

by the time this Court will be considering the briefing in this case. Respondent

had no prior nor subsequent disciplinary actions. Respondent took full

responsibility for the error that she made and has had this disciplinary proceeding

hanging over her head for three and a half years since the initial complaint by

Grace Gaines.

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Grace Gaines was in a difficult position. She didn’t want to file a lawsuit

but believed that her investment in property was going to be lost if her interests

were not protected by the legal system. Respondent attempted to protect those

interests by filing a lis pendens at the same time as sending a civil theft demand

letter. The lis pendens was not filed in secret. A copy, along with the civil theft

demand letter was sent to Gary Smith. He took it to his attorney, Ross McCloy.

Once Mr. McCloy got involved, this was a matter of attempting to negotiate a

settlement without litigation. Mr. Smith did not come into the negotiation with

clean hands after September 16, 2005 when he dissolved the corporation under

which Grace Gaines had been proceeding. From August 2005 until February

2006, the Respondent was primarily responsible for the motion practice and file

preparation for a 100 count indictment against a doctor for over-prescribing pain

medication and causing the death of some of his patients. The representation of

Dr. Merrill was time-consuming and Respondent was not able to attend to all

details of all her cases. She had prepared a draft complaint that was provided to

attorney McCloy in August 2005. He was aware of the basis for Ms. Gaines’

claim to the property even if he didn’t agree. Once the lawsuit was filed and

Gaines’ countersuit was filed, McCloy no longer sought the dissolution of the lis

pendens. Instead he sought a hearing on the lis pendens to determine if Gaines’

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claims had a proper nexus to the property to support the filing of a lis pendens and

whether Gaines should have to post a bond. At that hearing, the lis pendens was

dissolved because the named party therein was no longer a corporation. At that

time, Ms. Gaines could have refiled the lis pendens with the proper name, but Mr.

Shepard (who handled the hearing in Ms. Downing’s absence) advised Ms. Gaines

that she would likely have to post a bond of at least the amount that she claimed

the property or her interest in the property was worth.

This Court should not impose a harsher remedy than the Referee.

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Argument II

THE REFEREE’S REPORT CLEARLY STATES THAT THEPETITIONER SHALL BE ASSESSED TAXABLE COSTS ANDTHERE IS NO BASIS IN THE LAW FOR A REVERSAL OF THATASSESSMENT OF THIS AWARD OR A REMAND FORCLARIFICATION

Rule 3-7.6(q)(2) states in pertinent part that a “referee shall have discretion

to award costs and, absent an abuse of discretion, the referee’s award shall not be

reversed. A referee, therefore, has discretion and where the Bar is successful, a

referee “may assess the bar’s costs against the respondent ....” Id. at (3).

But, in its brief, the Florida Bar states as the last line that the Referee “in

advertently stated in his report that ‘Petitioner’ rather than Respondent be assessed

taxable costs. ROR - 8.” (Initial Brief at 27). The Undersigned has had no

contact with the Referee and the Florida Bar did not file a motion for clarification

or reconsideration before the Referee. The award of costs may be appealed where

there is a legal issue pertaining thereto. But here, where the Florida Bar is not

claiming that the Referee abused his discretion but is, rather, asserting that the

Referee made a mistake--without any references to the record and where the

Florida Bar failed to file a motion before the Referee or get anything from the

Referee on the record--the Florida Bar’s request for a reversal or remand is not

appropriate.

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This Court should not reverse the Referee’s assessment of costs to the

Petitioner. It is the Undersigned’s belief that the Referee meant to assess the costs

against the Florida Bar because he reached a determination that diversion was

appropriate. And, while a referral to diversion could give rise to the imposition of

costs, the Referee did not believe that to be a fair assessment in this case. The

assessment should not be reversed nor remanded.

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SUMMARY OF THE ARGUMENT(Cross Appeal Initial Brief)

This case should have been dismissed by the Referee when the Florida Bar

failed to file this case in a timely manner.

The Report of the Referee sets forth facts that Respondent disputes.

However, even a plain reading of the facts as found by the Referee reflect no

misconduct.

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Argument I

THE REFEREE ERRED IN DENYING RESPONDENT’SMOTION TO DISMISS WHERE THE FLORIDA BAR’SCOMPLAINT WAS FILED AUGUST 30, 2011, MORE THANSIX YEARS AFTER THE ACTIONS GIVING RISE TO THISCOMPLAINT OCCURRED IN AUGUST 2005 AND WHEREPROPER NOTICE AS TO THE ALLEGATIONS BEFORE THECOMMITTEE WAS NOT PROVIDED TO RESPONDENT

The Florida Bar’s Complaint to the Supreme Court should have been

dismissed by the Referee and the Florida Bar ordered to cease and desist the

prosecution of this case. The actions complained about occurred more than six

years prior to the filing of the Complaint in August 2011 in violation of Rule 3-

7.16, Rules Regulating the Florida Bar, which provides in subsection (a):

Inquiries raised or complaints presented by or to The Florida Barunder these rules shall be commenced within 6 years from the timethe matter giving rise to the inquiry or complaint is discovered or,with due diligence, should have been discovered.

The Respondent filed a Motion to Dismiss with her Answer on September 23,

2011. (Index #5). While the Referee did not know all of the facts at the time this

motion was filed, a review of the Transcript will reflect that all the witnesses,

including the Respondent, replied to some questions with a failure to remember

what had happened. By the time this case got to a Trial, it had been seven years

since the events occurred.

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Respondent first met with Grace Gaines in June 2005 and the lis pendens

that is the subject of this Complaint was filed in August 2005. Fla. Bar. v. Walter,

784 So. 2d 1085 (Fla. 2001) (holding generally that the Florida Bar did not

proceed in filing a complaint within a reasonable time where the Bar filed that

complaint seven years after the attorney’s alleged misconduct, especially where

the delay was not attributable to the attorney). Moreover, this matter was

submitted to the Bar a substantial amount of time prior to the filing of this

Complaint. The initial complaint by the client, Grace Gaines was received by the

Florida Bar on January 9, 2010, and it took the Florida Bar more than a year and a

half to file the Complaint.

The Florida Bar counsel has not acted diligently nor in compliance with

Rule 3-7.6(g), Rules Regulating the Florida Bar, which provides in pertinent part,

“Bar counsel shall make such investigation as is necessary and shall prepare and

prosecute with utmost diligence any case assigned.” Such diligence is paramount

because “the minute such a proceeding is instituted the lawyer’s professional

reputation is shadowed and in danger of being permanently impaired.” Murrell v.

Fla. Bar, 122 So. 2d 169, 174 (Fla. 1960) (five year delay).

In this case, the grievance process over a “mistake” in the words of The

Florida Bar’s own attorney has lasted since January 2010. Certainly there are

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aspects of Respondent’s life that this has affected. Her professional reputation has

been shadowed. The Hearing before her colleagues that she continues to work

with and see on a regular basis was in the August 2010 but the Florida Bar delayed

in filing the Complaint before the Supreme Court for one year. It was filed August

29, 2011. Respondent requested a continuance from the announcement of the first

grievance hearing in June 2010, but then stated that she would be available. The

grievance committee could not get a quorum before the August 2010 hearing.

Then the committee had to meet again in September 2010. From that date, the

delay is only on the Florida Bar. There is no attribution of delay to Respondent in

the Florida Bar’s delay for over a year from the grievance committee hearing the

Respondent attended to the filing the Complaint.

The conduct giving rise to this occurred on August 4, 2005. Judge

Overstreet and Ross McCloy were aware of the actions of Respondent and did not

report it. Only after her case was dismissed by Judge Overstreet did Grace Gaines

file this Complaint in January 2010, more than five years later. The Bar delayed

until August 2011 to file the Complaint. It should have been and should be

dismissed.

-27-

Argument II

RESPONDENT DID NOT COMMIT THE VIOLATIONS ASALLEGED AND THE REFEREE’S FINDINGS SHOULD HAVEBEEN NO MISCONDUCT

Standard of Review:

Referee’s Recommendation as to Guilt: “The standard of review for a

referee's recommendations as to guilt is whether the referee's factual findings are

sufficient under the applicable rules to support the recommendations as to guilt.”

Fla. Bar v. Winters, 104 So. 3d 299, 301 (Fla. 2012) (citing Fla. Bar v.

D'Ambrosio, 25 So. 3d 1209, 1216 (Fla. 2009); Fla. Bar v. Shoureas, 913 So. 2d

554, 557-58 (Fla. 2005)).

Argument:

In this case, as conceded by the Florida Bar in opening statements, the

Respondent made a mistake based on a good-faith belief that she was within the

Rules and complying with the statute while meeting the needs of her client. The

client did not want to sue Gary Smith but wanted to attempt to negotiate the

repayment of the money that she was owed regarding the development of the

property.

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The Florida Bar argues that the delay in the filing of the lis pendens until its

dissolution harmed the marketability of the property. That is not true and

Respondent’s Exhibits 3 and 4 to the trial were submitted to the trial court in

opposition to summary judgment and with regard to Smith’s request for an award

of fees. Both a mortgage and real estate professional swore and affirmed that the

property was marketable, could be under contract and get a mortgage. The only

thing that would be held up by a lis pendens would be an actual closing on the

property. The lis pendens would have to be lifted.

And, Respondent and her law partner, Rusty Shepard, offered to lift the lis

pendens if the owner of the property would agree to keep any sale proceeds in

escrow so that the parties could litigate over the property. During this negotiation

period, Smith dissolved the corporation claiming title and that was listed on the lis

pendens. Therefore, the lis pendens was invalid on September 16, 2005 had

Smith’s attorney Ross McCloy advised the Court of that. Instead, Mr. McCloy

chose to continue to negotiate and eventually filed litigation. At that point,

Respondent joined into the litigation with a claim against Smith by Grace Gaines

and the company that had been dissolved.

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The Bar, in its Initial Brief, discuss the unnecessary expenses incurred by

Mr. Smith in this matter. If the lawsuit had been filed with the lis pendens, Mr.

Smith would have had to get an attorney and would have negotiated and would

have tried to get the lis pendens lifted exactly as the case progressed. That does

not excuse the mistake. However, the Florida Bar should not be seeking

discipline, a thirty day suspension, based upon the costs of a non-complaining

third party.

In the case at hand, the Respondent made a good-faith argument before the

Referee that she had grounds for filing the lis pendens at the same time as the civil

theft letter. This issue has not been litigated previously. Respondent has not made

this error numerous times. Multiple attempts to relitigate “the same

nonmeritorious and frivolous issue” would be without a good faith basis under

Rule 4-3.1. Fla. Bar. v. Committe, 916 So. 2d 741 (Fla. 2005). As would filing

this document purely to harass Gary Smith.

But the facts before the Referee and the facts before this Court reveal that

the Respondent did not purposefully evade the filing procedure for a non-

meritorious or frivolous lawsuit.

-30-

The Referee recognized this when he attempted to divert this case prior to

issuing a Report. And, even in his report, the Referee stops short of a finding of

guilty. And, even if there was a finding of guilt, the Referee believes it would be

“no more than minor misconduct.” Accordingly, the Report of the Referee should

be considered to be a finding of no misconduct with no discipline, no diversion,

and no costs to be assessed against the Respondent.

CONCLUSION

Based on the foregoing facts and Authority submitted in the Answer Brief

portion, the Respondent requests that this Court deny the request by The Florida

Bar to suspend her for thirty days. This harsh punishment that, inflicted over eight

years after the date of the conduct, would not serve the goals of discipline. It

would punish Respondent’s current clients who would be forced to retain another

attorney at unknown expenses to them. In addition, the forward progress being

made in Respondent’s cases would be negatively affected. This was an isolated

incident that occurred eight years ago when Respondent was a much younger

lawyer. She now has thirteen years of experience and will not make this mistake.

Furthermore, the Respondent respectfully requests that this Court dismiss

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this action due to the delay in filing this action from the date of the original client

complaint and/or to find that the Referee’s recommendation of diversion is

equivalent to a finding of no misconduct.

Last, Respondent submits that The Florida Bar should bear its own fees and

costs in this matter as the Referee’s decision on this matter is not subject to being

overturned.

Respectfully submitted,

/s/ Rhonda S. Clyatt Rhonda S. Clyatt

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CERTIFICATE OF TYPE SIZE, STYLE AND ANTI-VIRUS SCAN

The Undersigned Counsel for the Respondent certifies the size and style of

type used in this brief is 14-point Times New Roman. This brief has been filed

electronically through the Florida Courts E-Filing Portal as directed in this Court’s

Administrative Order, No. AOSC13-7, dated February 18, 2013. The

Undersigned Counsel fo the Respondent does hereby further certify that this

electronically filed version of this document has been scanned and found to be free

of viruses by Symantec Antivirus Corporate Edition.

/s/ Rhonda S. Clyatt Rhonda S. Clyatt

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this document has been electronically filed and

has been served via electronic mail to Counsel for The Florida Bar, Olivia P.

Klein, Esq., at [email protected] and to Staff Counsel for the Florida Bar,

Kenneth Lawrence Marvin, Esq., at [email protected] on this 31st day of July,

2013. A paper copy of this document has not been filed.

/s/ Rhonda S. Clyatt RHONDA S. CLYATT

Florida Bar No.: 346081Post Office Box 2492Panama City, Florida 32402Telephone: (850) 872-1031Facsimile: (850)872-1495E - Service: [email protected]

Secondary E-mail: [email protected]

Tertiary E-mail: [email protected]

ATTORNEY FOR RESPONDENT