IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Supreme ... · PDF fileIN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Supreme Court Case No. SC11- |[(p Complainant, vs. The Florida$Èr

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court CaseNo. SC11- |[ (p

Complainant,

vs. The Florida$Èr FileNo. 2010-50,750(09B)

RUSSELL SAMUEL ADLER,

Respondent.

RESPONDENT'S ANSWER BRIEF

KEVIN P. TYNAN, #710822RICHARDSON & TYNAN, P.L.C.Co-Counsel for Respondent8142 North University DriveTamarac, FL [email protected]

FRED HADDAD,.#180891FRED HADDAD, P.A.Co-counsel for Respondent1 Financial Plaza, Suite 2612Fort Lauderdale, FL [email protected]

TABLEOFCONTENTSPage(s)

TABLEOF CONTENTS.............................................i

TABLE OF CASES AND CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT......................................................10

I. THE REFEREE'S RECOMMENDED SANCTION OF A THIRTYDAY SUSPENSION IS APPROPRIATE FOR A LAWYER FOUND GUILTYOF AN ISOLATED MISJUDGMENT IN A PERSONAL TRANSACTIONUNRELATED TO THE PRACTICE OF LAW WHICH CAUSED NODAMAGE OR ECONOMIC LOSS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Aggravation and Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. Sanction..................................................16

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATEOFSERVICE .......................................24

CERTIFICATIONASTOFONTSIZEANDSTYLE.....................25

TABLE OF CASES AND CITATIONS

Florida Cases Page(s)

1. Baywood Furniture Mart, Inc. v. Kennedy, 295 So. 2d 3 50(Fla. 2"d DCA 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. Williams Management Enterprises, Inc. v. Buonauro, 489 So. 2d 160(Fla. 5th DCA 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. The Florida Bar v. Abramson, 3 So. 3d 964 (Fla. 2009). . . . . . . . . . . . 22, 23

4. The Florida Bar v. Berthiaume, 78 So. 3d 503 (Fla. 2012). . . . . . . . . . 22, 23

5. The Florida Bar v. Brown, 790 So. 2d 1081 (Fla. 2001). . . . . . . . . . . . . . . 20

6. The Florida Bar v. Brown, 905 So. 2d 76 (Fla. 2005). . . . . . . . . . . . . . . . . 20

5. The Florida Bar v. Corbin, 701 So. 2d 334 (Fla. 1997). . . . . . . . . . . . . 20, 21

6. The Florida Bar v. Frederick, 756 So. 2d 79 (Fla. 2000) . . . . . . . . . . . . . . 22

7. The Florida Bar v. Gwynn, 94 So. 3rd 425 (Fla. 2012). . . . . . . . . . . . . 12, 23

8. The Florida Bar v. Kelly, 813 So. 2d 85 (Fla. 2002). . . . . . . . . . . . . . . 12, 22

9. The Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997) . . . . . . . . . . . . . . . 17

10. The Florida Bar v. Laing, 695 So. 2d 299 (Fla. 1997) . . . . . . . . . . . . . 21, 23

11 The Florida Bar v. Nicnick, 963 So. 2d 219 (Fla. 2007) . . . . . . . . . . . . 22, 23

12. The Florida Bar v. Nuckolls, 521 So. 2d 1120 (Fla. 1988) . . . . . . . . . . 18, 19

13. The Florida Bar v. Pahules, 233 So. 2d 130 (Fla. 1970) . . . . . . . . . . . . . . 12

14. The Florida Bar v. Renke, 977 So. 2d 579 (Fla. 2008). . . . . . . . . . . . . . . . .18

15. The Florida Bar v. Siegel, 511 So. 2d 995 (Fla. 1987) . . . . . . . . . . . . . . . . 18

11

16. The Florida Bar v. Thomas, 698 So. 2d 530 (Fla. 1997). . . . . . . . . . . . . . . 12

17. The Florida Bar v. Tobkin, 944 So. 2d 219 (Fla. 2006). . . . . . . . . . . . . . . . 22

18. The Florida Bar v. Walker, 672 So. 2d 21 (Fla. 1996) . . . . . . . . . . . . . . . . 16

19. The Florida Bar v. Wilson, 425 So. 2d 2 (Fla. 1983). . . . . . . . . . . . . . . . . . 14

20. The Florida Bar v. Yonker, 37 Fla. Law Weekly S545 (Fla. 2012). . . . . . . 19

Rules

1. R. Regulating Fla. Bar 3-4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. R. Regulating Fla. Bar 4-1.5(f)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 13

3. R. Regulating Fla. Bar 4-8.4(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

4. R. Regulating Fla. Bar 4-8.4(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Standards

1. Fla. Standards for Imposing Lawyer Sanctions, Standard 3.0 . . . . . . . . . . 11

2. Fla. Standards for Imposing Lawyer Sanctions, Standard 9.22. . . . . . . . . . 15

3. Fla. Standards for Imposing Lawyer Sanctions, Standard 9.32. . . . . . . . . . 16

111

RESPONDENT'S PRELIMINARY STATEMENT

The Respondent, Russell Samuel Adler, files this Answer Brief in opposition

to the Complainant, The Florida Bar's Initial Brief seeking review of the Referee's

recommended sanction of a thirty (30) day suspension.

In this brief, the Complainant, will be referred to as either The Florida Bar,

or as the Bar. The Respondent will be referred to either as Adler or the

Respondent.

References to the Report of Referee shall be by the symbol RR followed by

the appropriate page number. References to specific pleadings will be made by the

title of the pleading.

References to the transcript of the final hearing will be by the symbol TT

followed by the appropriate page number (e.g., TT _) and references to the

sanction hearing held at a later date will be by the symbol TT2 followed by the

appropriate page number (e.g., TT2 __).

References to exhibits will be by the symbol TFB Ex. or R Ex., followed by

the appropriate exhibit number (e.g., TFB Ex. __ or R Ex. __).

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STATEMENT OF THE CASE.AND FACTS

The Florida Bar's Initial Brief contains an accurate recitation of the

procedural aspects of this case and therefore the Respondent will not set forth his

own Statement of the Case. However, the Respondent does take issue with the

Statement of Facts submitted by the Bar and therefore sets forth his own version of

same below.

At the outset it is important to note that, while there was a contested trial as

to guilt, the Respondent has not sought review of the Referee's factual findings and

has accepted the Referee's ruling that he has engaged in ethical misconduct

relative to his purchase of an apartment in New York and his law firm's failure to

have an attorney sign personal injury distribution statements. The Florida Bar in

its appeal has only sought review of the proposed sanction and as such neither

party takes issue with the Referee's factual findings.

Background

Respondent, Russell Samuel Adler, at all times material herein was an

attorney with the law firm of Rothstein, Rosenfeldt and Adler (hereinafter "RRA")

located in Fort Lauderdale, Florida. The other named partners in RRA were Scott

Rothstein and Stuart Rosenfeldt. RR 2. At or about the time Respondent joined

RRA, he was given the title of Shareholder and was told that he would become an

equity partner in the firm if he met certain goals relating to fee generation for the

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firm. RR 2. Respondent met those goals and was entitled to the stock in the law

firm. TT 163. In fact, the Referee made a specific finding that Respondent was

entitled to the shares he had been promised. TT 163. The terms of Respondent's

equity deal with the law firm were confirmed by e-mails between Respondent and

Mr. Rothstein, as was the fact that Respondent reached the goals that had been set

for him.

By August 2009, Respondent testified that although he had not received

stock certificates in the firm, he nonetheless considered himself to be a twenty

percent (20%) equity shareholder because he had met the revenue goals that were

part of his deal to join the law firm, and he was entitled to receive stock TT 111.

The Referee concluded that Respondent was entitled to the stock in the firm, but

because he never received his stock, he made a misrepresentation when he told the

Cooperative Board, in an application for approval to purchase his apartment, that

he was a twenty percent equity shareholder in the firm. RR 2.

The Real Estate Purchase

In 2009, Mr. Adler and his wife desired to purchase a cooperative apartment

in New York City. During the process of seeking Board approval to purchase the

apartment the Respondent wrote an e-mail to Board Member Frank Veilson, in

which the Respondent stated that he held a twenty percent interest in RRA. TFB

Ex. 5. The cooperative board requested a letter confirming Respondent's status at

-3-

the law firm, Respondent sent an e-mail requesting the letter, and the firm issued a

letter which was signed by the firm's CFO and emailed to Mr. Veilson by

Respondent. TT 123-124. Although the letter did not semantically identify

Respondent as an "equity" partner, it clearly described Mr. Adler as a shareholder

who had access to an RRA "discretionary fund" purportedly from time to time

containing in excess of $500,000.00. TFB Ex. 12.

From the outset of the transaction, Mr. Adler was informed by the seller of

the apartment that the homeowners' board would generally approve a purchase

consisting of up to ninety-percent financing. TT 112. Mr. Veilson testified that he

received the letter from RRA and presented it to the board. He could offer no

further testimony concerning whether the board relied on or even considered said

letter as he was not privy to the internal workings of the board. TT 46. He was not

asked to make any further inquiry about Mr. Adler, notwithstanding that they could

easily have done so had the Board deemed it necessary or if it was dissatisfied with

the information that had been presented. TT 46. At no time was Mr. Veilson asked

to inquire regarding the amount or source of Mr. Adler's private financing. TT 47.

He testified that the board was not mislead in any way about the financing because

they never inquired about it. TT 47.

Respondent borrowed ninety-percent of the purchase price of the apartment

in the form of a loan that was evidenced by a promissory note and secured by a

··4-

"Recognition Agreement" (which is the equivalent of a mortgage encumbering

shares of the cooperative that respondent was purchasing).

The remaining ten-percent of the purchase price was given to Mr. Adler by

the firm, in the form of a payroll advance TT 147. Respondent testified that at that

time in 2009, the firm owed Mr. Adler substantial compensation due to the fees he

had generated that year to date, and also because of the performance of the

personal injury litigation group that Respondent was in charge of for the law firm.

TT 163. The additional ten percent (10%) of the purchase price was characterized

as a payroll advance. Although Respondent was asked to sign a promissory note

(in case he left the firm unexpectedly) at no time did Mr. Adler think of it as a

loan. TT 164. However, the Referee disagreed and found that the payroll advance

was a loan and therefore Mr. Adler had one hundred percent (100%) financing on

the transaction.1 RR 3. Mr. Adler is not appealing this finding.

The Referee found the Respondent guilty of having violated R. Regulating

Fla. Bar 3-4.3, 4-8.4(a) and 4-8.4(c) in regards to this real estate purchase.

Distribution Statements

Mr. Adler admitted that he inadvertently violated R. Regulating Fla. Bar 4-

1.5(f)(5) which required his signature on settlement statements, in addition to the

There is no evidence in the record that the Respondent failed to make anypayment required under either loan or was in default of any obligation to thecooperative association.

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clients' signatures, which he said were always required and obtained. Respondent

testified that he has experienced substantial and sincere remorse and contrition for

this misconduct. RR 4. His method of drafting settlement statements at the

conclusion of a personal injury claim was the product of his experience gained

practicing exclusively as a personal injury attorney over a period of nearly twenty-

six years. TT 156. His failure to include an attorney's signature line was

unintentional and solely a matter of inadvertent oversight that had prevailed

universally in the firm's tort litigation department over the years. TT 156-157.

Notwithstanding the inadvertence, each and every settlement statement was signed

by the client, and the Rule in question was complied with in every other respect.

TT 154-155.

Sanction

After having found the Respondent guilty of the rule violations set forth

above, the Referee held a separate hearing to consider the appropriate sanction.

She considered the mitigating and aggravating factors presented by the parties and

reviewed the appropriate precedent as is noted in her Report. RR 5-10. The

Referee recommended to this Court that the Respondent, who has never been

previously disciplined, receive a thirty (30) day suspension from the practice of

law and be ordered to pay the Bar's costs. RR 10. The Florida Bar, and not the

Respondent, has appealed this sanction recommendation.

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SUMMARY OF THE ARGUMENT

The only issue on appeal is whether the Referee's recommendation of a

thirty day suspension from the practice of law is the appropriate sanction for a

lawyer who engaged in misrepresentations related to his purchase of an apartment

in New York City when those misrepresentations did not result in any financial

harm to the individuals related to that transaction.2 It is the Respondent's position

that the Referee's recommendation is firmly grounded in existing precedent and

should be affirmed. The Florida Bar in this appeal has requested this Court to

impose a ninety one day rehabilitative suspension based upon the same argument

that the Referee did not find persuasive.

As in all disciplinary matters, this Court must carefully consider the severity

of the misconduct and balance that with the aggravation and mitigation that is

present in the case. While a Referee has found this Respondent guilty of making a

misrepresentation regarding his ownership interest in a law firm and the amount of

the financing secured to fund the transaction, there has been no showing that these

actions have resulted in any financial impact or harm to the seller or the co-op

board. Further, on balance there are mitigating factors, inclusive of a twenty six

2 While there is a second finding of guilt related to the Respondent's lawfirm's failure to have distribution statements from personal injury settlementscountersigned by a lawyer, this second matter has been and continues to beuncontested and warrants only a minor sanction.

~7 -

year blemish-free legal career, that far outweigh the aggravating factors found by

the Referee.

It is respectfully submitted that the Referee, who considered all of the

evidence in this case and was able to listen to the witnesses and gage their

credibility, has fashioned an appropriate remedy for the misconduct at issue and

that The Florida Bar has failed to demonstrate that a thirty day suspension should

not be imposed.

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ARGUMENT

L THE REFEREE'S RECOMMENDEDSANCTION OF A THIRTY DAY SUSPENSION ISAPPROPRIATE FOR A . LAWYER FOUNDGUILTY OF AN ISOLATED MISJUDGMENT IN APERSONAL TRANSACTION UNRELATED TOTHE PRACTICE OF LAW WHICH CAUSED NODAMAGE OR ECONOMIC LOSS.

The only issue to be determined in this appeal is the appropriate sanction for

a twenty six year member of the Bar, who has previously never been disciplined

and who was found to have made misrepresentations as to his ownership interest in

a law firm, and regarding the amount of financing he had secured to complete his

purchase of a cooperative apartment in New York City in the summer of 2009.3

It is noteworthy that the Referee agreed that Respondent was actually

entitled to his stock in the law firm when he applied to the cooperative board for

approval to purchase the apartment,4 and he testified that this was the reason why

he made that representation to the Board. TT 117-118. Respondent's belief in that

regard is actually consistent with the decisions of several Courts which have held

3 The Referee also considered the failure to have a lawyer execute a copy ofdistribution statements in personal injury settlements into her sanctionrecommendation. While this Court will need to do this also, it is the Respondent'sposition that the sanction for such action is de minimus and that it is the actionsrelated to the real estate transaction that warrant the suspension beingrecommended by the Referee.

4 See the Referee's specific finding in the record supporting this position. TT191.

-9-

that stock ownership is an intangible, and that stock certificates are merely

evidence of stock ownership, and not ownership itself. Baywood Furniture Mart,

Inc. v. Kennedy, 295 So. 2d 350 (Fla. 2nd DCA 1974); Williams Management

Enterprises, Inc. v. Buonauro, 489 So. 2d 160 (Fla. 5th DCA 1986). For this

reason, it cannot be said that the misrepresentations found by the Referee were

truly baseless or simply made up; rather, they were founded upon certain true

statements.5 Moreover, in his application for the Board's approval to purchase the

apartment (TFB Ex. 3), Respondent was asked to list his assets, and he did not

include anything for the value of his interest in the firm, because he testified that

he had no idea how much his percentage of ownership was worth. This speaks

loudly as to the severity of Respondent's misconduct, or the lack thereof.

The Referee, after considering the severity of the misconduct,' the

mitigation and the aggravation, has recommended a thirty day suspension from the

practice of law and payment of the Bar's costs. The Respondent believes that the

Referee's sanction is firmly grounded in existing precedent and should be upheld,

while The Florida Bar seeks to secure a ninety one (91) day suspension.

See the Referee's finding that the Respondent was entitled to twenty percentequity in the law firm. TT 163.

6 The Refereo made a specific fmding that no one was harmed by theRespondent's misconduct. RR 10.

- 10 -

The ultimate determination of an appropriate sanction in disciplinary matters

rests with the Supreme Court of Florida and therefore this Court has consistently

held that it has broad discretion when reviewing a referee's recommendation of a

sanction. The Florida Bar v. Thomas, 698 So. 2d 530 (Fla. 1997); The Florida

Bar v. Gwynn, 94 So. 3rd 425 (Fla. 2012). As the Bar concedes in its Initial Brief, a

Referee's sanction recommendation that has a reasonable basis in existing case law

and in the Florida Standards for Imposing Lawyer Sanctions will not be disturbed

by this Court. Gwynn at 432.

The Florida Standards for Imposing Lawyer Sanctions (hereinafter

"Standards"), Standard 3.0 provides that in imposing a sanction after a finding of

lawyer misconduct, this Court should consider: the duty violated; the lawyer's

mental state; the potential or actual injury caused by the lawyer's misconduct and

the existence of aggravating or mitigating factors. Further, in The Florida Bar v.

Kelly, 813 So.2d 85 (Fla. 2002), this Court stated that in selecting an appropriate

discipline the fundamental issues that must be addressed are: fairness to both the

public and the accused; sufficient harshness in the sanction to punish the violation

and encourage reformation; and that the severity of the sanction is appropriate to

function as a deterrent to others who might be tempted to engage in similar

misconduct. Also see The Florida Bar v. Pahules, 233 So. 2d 130 (Fla. 1970). It

is respectfully submitted that it is evident that in applying these standards to the

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case at hand that it is evident that the thirty-day suspension recommended by the

referee is appropriate.

The Respondent did not contest the allegations that he violated R.

Regulating Fla. Bar 4-1.5(f)(5) regarding his failure to include an attorney's

signature on disbursement statements at the conclusion of the firm's personal

injury matters even though each such statement was closely reviewed by Mr. Adler

or another firm attorney or both.7 This is the only rule violation alleged by the Bar

that involved conduct with a nexus to the practice of law. The conduct which the

referee found to be dishonest, fraudulent or deceitful in violation of the R.

Regulating Fla. Bar arose in connection with Mr. Adler and his wife's purchase of

a cooperative apartment in New York City. This transaction was purely personal

in nature as the property interest was acquired as the couple's second home. The

case law which will be presented in support of Respondent's argument that the

sanction recommended by the referee was appropriate and just, involve conduct

perpetrated in connection with the practice of law and not in a purely personal

transaction or occurrence. Egregious conduct is improper and not to be condoned

merely because it occurred in a personal setting as well. However, it is submitted

that the lack of misconduct perpetrated within the sanctity of an attorney/client

relationship that does not precipitate loss or damage to anyone or give rise to a

7 In all other regards these distribution statements followed the requirementsof the trust accounting rules.

- 12 -

complaint to the Bar is a consideration that goes to the weight and propriety of that

which this Court would deem as meeting the standards of reasonableness, fairness

and deterrence. The referee has fully and completely evaluated the facts, balanced

the law between the conduct, the culpability, the nature of the sanctions in other

cases, the factors of aggravation and mitigation, no nexus to the practice of law as

well as the lack of loss, damage or even a complainant.

There is a dearth of cases directly on point in which this Court has

determined a sanction of thirty day suspension for the fundamental reason that few

result in an appeal. However, an examination of suspensions of ninety one days or

less indicate that this Respondent's actions, while wrong are not as severe as that

found in this other precedent.

The Bar, by this appeal, is seeking to enhance the referee's recommended

sanction, presenting a plethora of distinguishable case law that neither bolsters nor

supports its argument. The Florida Bar argues that the recommended discipline

does not measure up to the gravity of the offense, citing The Florida Bar v. Wilson,

425 So. 2d 2 (Fla. 1983) in which the respondent was convicted of solicitation to

traffic in cocaine and attempted trafficking in cocaine. Id. The referee

recommended a three year suspension in Wilson and this Court properly ordered

him disbarred. Respondent herein does not oppose the general proposition that the

discipline should measure up to the gravity of the offense. In Wilson the bar

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sought enhancement to disbarment of a three-year suspension where the

respondent had been convicted of not one but two felonies involving moral

turpitude. Any resemblance to the matter at hand is difficult to perceive.

The Bar has presented various cases to support its argument for

enhancement of the sanction recommended by the referee to a ninety-one day

suspension requiring proof of rehabilitation that fail to address the issue presented

by the failure of the co-op board to rely on the misrepresentation of which the

referee has recommended Mr. Adler to be found guilty of making. The Bar asks

this Court to disregard the fact that there is no evidence that the Board ever relied

on the percentage of the purchase price was being financed. Mr. Veilson testified

that at no time was he asked to inquire regarding the amount or source of Mr.

Adler's private financing. Mr. Veilson told the referee that the board was not

mislead in any way about the financing because they never inquired about it. TT

47.

A. Aggravation and Mitigation.

In every disciplinary proceeding it is important to discuss the aggravating

and mitigating factors found in that case. The Referee found two aggravating

factors. They were Standard 9.22(b) [dishonest or selfish motive] and Standard

9.22(i) [substantial experience in the practice of law]. RR 11. While the Referee

- 14 -

did find some aggravation, she found significantly more mitigating factors RR 9.

In particular she found the following mitigating factors:

Standard 9.32(a) absence of a prior disciplinary record;

Standard 9.32(e) full cooperation with the Bar;

Standard 9.32(g) otherwise good character;

Standard 9.32(1) remorse.

The Referee, after noting that the precedent advanced by the Bar was

distinguishable as to the merits of those cases and as to the aggravating factors

found in said precedent, made a specific finding that she considered the foregoing

mitigation as "significant."

B. Sanction.

While there is not an abundance of cases from which one can draw a

comparison to the parameters of a thirty day suspension, this Court in The Florida

Bar v. Walker, 672 So. 2d 21 (Fla. 1996) held that a lawyer's failure to inform a

chiropractor to whom he had given a letter of protection on behalf of a client, that

there was in fact no matter that was being handled on behalf of the client,

constituted dishonest and fraudulent conduct warranting a thirty-day suspension.

While the chiropractor had relied on the promise that his bill would be protected, in

the instant case there was no evidence of reliance by the co-op board as to whether

- 15 -

or not Mr. Adler had secured one hundred percent financing because the question

was not posed.

In The Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997), this Court was

faced with a similar dilemma concerning a misrepresentation case wherein the Bar

was appealing to secure a ninety one day suspension and a referee had only

recommended probation and the Court, on the facts of that case, determined that a

thirty day suspension was appropriate. The misconduct at issue in Kravitz was

serious and included that lawyer providing false evidence to a trial court about the

identity of a manager of a particular restaurant, making misrepresentation to

opposing counsel that he was holding funds in trust when he was not and for

making misrepresentations to a client that the client needed to pay him $4,000.00

or he could be arrested. Id. at 727. The Kravitz Court in reaching its determination

that a thirty day suspension was warranted, rather than a ninety one day

suspension, noted that they were swayed by the lack of a disciplinary record and

that the Referee, who had heard all of the evidence and who had been able to gage

the demeanor and credibility of the witnesses, had believed that the matter had

only warranted probation. Id.

- 16 -

The Florida Bar, in its briefhašurgéd this Court to consider a variety of case

law wherein á lawýer received some form of suspension.8 However, only two of

these áases relate to matániomewhat similar to the facts in this case as they

related to real estate transactions. The first such case is The Florida Bar v.

Nuckolls, 521 So. 2d 1120 (Fla. 1988). hi Nuckolls an attorney received a ninety

day suspension and not a rehabilitative suspension. Id. at 1122. The lawyer in

Nuckolls engaged in very serious mortgage fraud wherein he knowingly and

purposefully prepai.ed closing documents reflecting significantly higher purchase

prices than that found on the actual sales contracts in order to defraud the lender

into giving one hundred percent financing. Id. at 1121. This misconduct is

significantly worse than that found in the case sub judice in that the lender, the

Respondent's employer knew full well that he had provided an ninety percent loan

through one of his entities and that the additional ten percent was coming from a

payroll advance.

A similar circumstance occurred in The Florida Bar v. Siegel, 511 So. 2d

995 (Fla. 1987) and as the Bar points out in its Initial Brief, two lawyers were

8 Interestingly, most of the precedent cited by the Bar has resulted in thelawyer receiving less than a ninety one day suspension. For example the Bardiscusses a thirty day suspension on somewhat analogous facts. See The FloridaBar v. Renke, 977 So. 2d 579 (Fla. 2008) [Misrepresentations made in judicialcampaign and unlawful campaign contributions]. (Please note that this is anuncontested case.) While the Bar seems to rely upon the mantra that these aredifferent times, this appears to be a tacit admission by the Bar that Referee'srecommendation does have.a reasonable basis in existing,case law.

- 17 -

suspended for ninety days for deliberately misrepresenting facts to a lender so they

could secure full financing for the purchase of a building for their law office. Id. at

997. Once again the misconduct is much more significant and caused financial

harm which, unlike the Respondent's misconduct, could have (or would have)

resulted in criminal charges in today's legal world.'

Near the conclusion of its brief the Bar contends that "Respondent's

misconduct is most similar to that engaged in by Mr. Winters" in The Florida Bar

v. Yonker, 37 Fla. Law Weekly S545 (Fla. 2012).1° We disagree. Yonker involved

two associate lawyers who stole several client files so they could start a new firm

in competition with their old employer.11 Id. The Court, in its opinion found that

both lawyers engaged in theft and made a specific finding of guilt of R. Regulating

Fla. Bar 4-8.4(b). One of the lawyers received a sixty day suspension (Yonker)

and the second lawyer (Winters) was suspended for ninety-one days. Id. Clearly

the conduct in this case is much different than that found in Yonker and therefore

the sanctions imposed are starkly different than what is warranted in this case.

9 NHCkOllS iS DO different.

Please note that the current version of the opinion has not yet been releasedfor publishing and may be amended by this Court.

" There was also a violation of a rule not found in this case related to the firmname in that the letterhead for these two lawyers initially included a third lawyerwho was not a member of their law firm. Id. See R. Regulating Fla. Bar 4-1.10(f).

- 18 -

The Florida Bar directs this Court's attention to two different Brown cases.

Both are factually distinguishable. In the first such case a lawyer was convicted of

unethical activity related to illegal campaign contributions. The Florida Bar v.

Brown, 790 So. 2d 1081 (Fla. 2001). This lawyer was a corporate counsel and his

company was engaged in an illegal reimbursement scheme that the lawyer

ultimately became aware of and the Court found that the lawyer assisted his client

in activity that the lawyer should have known was illegal or at least fraudulent and

was suspended for ninety days. Id. at 1088. As is noted elsewhere in this brief, the

Respondent's actions did not involve any client.

The second Brown case, The Florida Bar v. Brown, 905 So. 2d 76 (Fla.

2005), involved significant intentional dishonest conduct in that the lawyer double

pledged a certificate of deposit as security for two distinct transactions with a

resulting financial loss of almost $150,000.00 to the injured party. This lawyer,

who had a prior disciplinary history (the first Brown case discussed above), was

suspended for six months. Again, the Referee in the instant case has found that

there was no discernable harm from the Respondent's misconduct and on the facts

of the case at hand the lender fully knew about the ninety percent loan and the

payroll advance.

The Bar also cites to The Florida Bar v. Corbin, 701 So. 2d 334 (Fla. 1997)

wherein the lawyer did receive a ninety day suspension for submitting an affidavit

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to a trial court that he knew to be false and for making a misstatement in his initial

response to a Bar inquiry. There is a striking difference in this case and Corbin in

that the Respondent's misrepresentations were made in a personal business

transaction which was unrelated to a client matter or a court proceeding.

The misconduct in Corbin is much more significant and interestingly did not

warrant the ninety one day suspension sought by the Bar.

With regard to the bar seeking a rehabilitative suspension herein, this Court

ordered a ninety-one day suspension for an attorney who failed to act with

reasonable diligence and promptness in representing his client; failed to keep the

client reasonably informed; failed to promptly deliver funds; failed to furnish client

with a copy of the signed contract; failed to appear for trial in another state; was

convicted of resisting a police officer without violence; use of means with no

substantial purpose other than to embarrass, delay or burden third person; misuse

of money held in trust; improper business transaction with client; and deceitful

acts. The Florida.Bar v. Laing, 695 So. 2d 299 (Fla. 1997). It is also important to

note that prior to his ninety one day suspension Laing had been disciplined twice

and there is no disciplinary record in this case. Id. at 304.

This Court has also found that only a 91-day suspension was warranted for

misconduct that consisted of violating the rule requiring an attorney to respond in

writing to an official inquiry by bar counsel; failure to forward checks payable to

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his client in a timely manner in violation of the rule requiring that client and third

party funds be held in trust; and filing a frivolous lawsuit against a former client.

See The Florida Bar v. Kelly, 813 So. 2d 85 (Fla. 2002).

In The Florida Bar v. Nicnick, 963 So. 2d 219 (Fla. 2007) this Court

demonstrated the nature of an offense that rises to the level warranting a

rehabilitative suspension. Nicnick was sanctioned for deliberately and knowingly

concealing evidence (a settlement agreement) from opposing counsel, a far more

egregious offense than that which the Respondent herein was charged with

perpetrating. Id. at 221-222. Other more recent examples of offenses warranting a

rehabilitative suspension are: The Florida Bar v. Berthiaume, 78 So. 3d 503 (Fla.

2012) [serving a fraudulent subpoena on a bank when there was no pending case];

The Florida Bar v. Abramson,·3 So. 3d 964 (Fla. 2009) [being disrespectful to a

judge in multiple instances in a litigated matter]; The Florida Bar v. Frederick, 756

So. 2d 79 (Fla. 2000) [failure to properly hold funds in trust and having clients sign

agreement not to file bar complaints]; and The Florida Bar v. Tobkin, 944 So. 2d

219 (Fla. 2006) [misconduct in two malpractice cases which included intentional

violation of discovery orders, filing a sham pleading and creating a disturbance at

cancer center at a meeting on client's X-rays which resulted in center's security

personnel being summoned].

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In The Florida Bar v. Gwynn, 94 So. 3d 425 (Fla.2012), a case cited by bar

counsel herein, this Court determined that a ninety-one day rehabilitative

suspension was warranted for the attorney who committed fifteen separate rule

violations, including making false statements, conduct involving dishonesty, deceit

and misrepresentation, making frivolous claims, using means with no other

purpose than to delay or harass, failing to provide competent representation, failing

to reasonably expedite litigation, conduct prejudicial to the administration of

justice, and the bankruptcy judge found that the attorney made numerous

allegations of wrongdoing and dishonesty against opposing counsel with no basis

in fact for doing so.

It is conduct that reaches the level of that which is demonstrated in Gwynn,

Abramson, Berthiaume, Nicnick, Kelly, and Laing that warrants a rehabilitative

suspension. These cases clearly demonstrate the nature and degree of misconduct

this Court has found to be prerequisite to warrant the imposition of a rehabilitative

suspension in order to qualify to return to the practice of law. It is respectfully

submitted that the Bar's attempt to enhance the referee's recommended sanction to

a rehabilitative suspension does not meet the standard of conduct prescribed by this

Court in order to warrant that level of sanction and overreaching when applied to

the conduct for which Mr. Adler has been found to be guilty.

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CONCLUSION

The Respondent has accepted the Referee's conclusion that he engaged in

ethical misconduct and that the appropriate punishment for same is a thirty day

suspension from the practice of law. The Florida Bar, while it seeks to convince

this Court to extend the recommended sanction, has set forth no legitimate grounds

to increase the suspension to ninety one days but instead relies upon precedent that

does not support its position in the hopes that the Court will impose a harsher

sanction than that recommended by the Referee. This Court should rely on its

existing precedent as the Bar has advanced no rational argument to do otherwise.

WHEREFORE the Respondent, RUSSELL SAMUEL ADLER, respectfully

requests that the Referee's recommendation of a thirty day suspension be upheld

and that the Court grant any other relief that is deemed reasonable and just.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished

by U.S. mail to: Kenneth H.P. Bryk, Bar Counsel, The Florida Bar, 1000 Legion

Place, Suite 1625, Orlando, FL 32801([email protected]); and to Kenneth Marvin,

Staff Counsel, The Florida Bar, 51 East Jefferson Street, Tallahassee, FL 32399

([email protected]); on this day of February, 2013.

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CERTIFICATE OF TYPE, SIZE AND STYLE and ANTI-VIRUS SCAN

Undersigned counsel does hereby certify that this Brief is submitted in 14

point proportionately spaced Times New Roman font, and that e-mail forwarded to

the Court has been scanned and found to be free of viruses, by McAfee.

Respectfully submitted,

RICHARDSON & TYNAN, P.L.C.Co-counsel for Respondent8142 North University DriveTamarac, FL 33321954-721-7 0ktynan@ off e.com

By: KÓÝ P. TYNAN, ESQ.TFB No. 710822

FRED HADDAD, P.A.Co-counsel for Respondent1 Financial Plaza, Suite 26'12Fort Lauderdale, FL 3 94954-467-6767dee@fredha ad w.com

By: p (()CcG1

F DDAD, ESQ.TF No. 180891

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