THE FLORIDA BAR, Supreme Court Case No. SC02 … THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Supreme Court Case No. SC02-1749 Complainant, v. The Florida Bar File No. 2002-70,667(11D)

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court Case No. SC02-1749

Complainant,

v. The Florida Bar FileNo. 2002-70,667(11D)

MICHAEL JOSEPH MURPHY,

Respondent.____________________________/

______________________________________________

The Florida Bar’s Answer Brief_______________________________________________

VIVIAN MARIA REYESBar CounselFlorida Bar No. 004235The Florida Bar444 Brickell Avenue, Suite M-100Miami, Florida 33131(305) 377-4445

JOHN ANTHONY BOGGSStaff CounselFlorida Bar No. 253847The Florida Bar 650 Apalachee ParkwayTallahassee, Florida 32399-2300(850) 561-5839

JOHN F. HARKNESS, JR.Executive DirectorFlorida Bar No. 123390The Florida Bar 650 Apalachee ParkwayTallahassee, Florida 32399-2300(850) 561-5839

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TABLE OF CONTENTSPAGE

TABLE OF CONTENTS .................................................................... i

TABLE OF AUTHORITIES .............................................................. ii - v

STATEMENT OF THE CASE .......................................................... 1 - 2

STATEMENT OF THE FACTS ........................................................ 3 - 8

SUMMARY OF ARGUMENT .......................................................... 9

ARGUMENT ...................................................................................... 10 -32

I. THE REFEREE DID NOT ERR IN RECOMMENDINGTHAT RESPONDENT BE DISBARRED. (Restated) ............ 10 - 25

II. THE REFEREE DID NOT ERR IN GRANTING THEFLORIDA BAR’S MOTION FOR PROTECTIVEORDER AND/OR TO QUASH SUBPOENA. (Restated) ....... 26 - 32

CONCLUSION .................................................................................... 33

CERTIFICATE OF SERVICE ............................................................ 34

CERTIFICATE OF TYPE, SIZE, ANDSTYLE AND ANTI-VIRUS SCAN ................................................... 34

INDEX TO APPENDIX ..................................................................... 35

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TABLE OF AUTHORITIES

CASES PAGE

Cabrera v. Evans,322 So.2d 559 (Fla. 3d DCA 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Hartford Acc. & Indem. v. U.S.C.P. Co, 515 So.2d 998 (Fla. 4th DCA 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Macdonald v. Dept. of Children and Families, 2002 WL 32178967 (Fla. 4th DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . 28

Mathews v. Kant, 427 So.2d 369 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

McCarty v. Schultz, 372 So.2d 210 (Fla. 3d DCA 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

The Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Florida Bar v. Cueto, 834 So.2d 152 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 29, 30

The Florida Bar v. Dougherty, 769 So.2d 1027 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Florida Bar v. Farbstein, 570 So.2d 933 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

The Florida Bar v. Golub, 550 So.2d 455 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

The Florida Bar v. Graham, 605 So.2d 53, 56 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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The Florida Bar v. Hayden, 583 So.2d 1016 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Florida Bar v. Horne, 527 So.2d 816 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Florida Bar v. Knowles, 500 So.2d 140 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15

The Florida Bar v. Korones, 752 So.2d 586 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

The Florida Bar v. McClure, 575 So.2d 176 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Florida Bar v. McKenzie, 442 So.2d 934 (Fla. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

The Florida Bar v. Rendina, 583 So.2d 314 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Florida Bar v. Rue, 643 So.2d 1080 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Florida Bar v. Schiller, 537 So.2d 992 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Florida Bar v. Shanzer, 572 So.2d 1382 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Florida Bar v. Shuminer, 567 So.2d 430 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15

The Florida Bar v. Tillman, 682 So.2d 542 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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The Florida Bar v. Vining, 761 So.2d 1044, 1048 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

The Florida Bar v. Weinstein, 635 So.2d 21 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Florida Bar v. Wolis, 783 So.2d 1057 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Thomas v. State, 645 So.2d 185 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

FLORIDA RULES OF CIVIL PROCEDURE

1.410(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS

4.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

4.61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5.11(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5.11(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

5.11(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

7.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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RULES REGULATING THE FLORIDA BAR

3-4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3-4.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3-7.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

3-7.7(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

3-7.7(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

3-7.11(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

4-1.5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4-8.4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4-8.4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4-8.4(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5-1.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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STATEMENT OF THE CASE

On June 4, 2002, The Florida Bar filed a Petition for Emergency Suspension

based on the Respondent’s misappropriation of client and firm funds. On June 14,

2002, this Honorable Court entered an order Emergency Suspending Respondent.

On August 7, 2002, The Florida Bar filed its formal complaint with this Court.

Respondent subsequently waived the ninety (90) day hearing requirement.

On February 20, 2003, The Florida Bar filed an uncontested Motion for

Partial Summary Judgment as to the issue of Respondent’s guilt. On February 21,

2003, the Referee entered an order granting The Florida Bar’s motion. On March

14, 2003, The Florida Bar filed a Notice of Judgment of Guilt, Supreme Court Case

No. SC03-430, based on Respondent’s adjudication of a felony in United States of

America v. Murphy, Case No. 02-20639-CR-Moore, in the Southern District of

Florida. Respondent’s criminal conviction was directly related to the events

resulting in his emergency suspension and subsequent recommendation of

disbarment. This Court’s order of felony suspension was entered on March 26,

2003.

Final hearing was held March 25 and 27, 2003. The Bar sought disbarment

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and Respondent sought a three (3) year suspension. On May 30, 2003, the Referee

issued a report recommending that the Respondent be disbarred. (ROR).

Respondent has petitioned for review of the recommended discipline. This appeal

follows.

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STATEMENT OF THE FACTS

The facts in this case are undisputed. Respondent admitted both to the facts

and rule violations. Additionally, summary judgment was granted in favor of The

Florida Bar and this matter proceeded to final hearing solely on the issue of

discipline. The essence of the undisputed facts are that Respondent devised a

scheme whereby he stole $111,790.00 belonging to his clients and law firm.

Respondent committed the misappropriation in 167 separate incidents affecting 60

different clients over a period of seven years. Respondent attempted to conceal his

theft by fabricating fraudulent investigative costs which he would then bill to his

clients.

Respondent was a partner with the law firm of Gaebe, Mullen, Murphy et al

(“GMM”). Respondent’s partners at GMM were also his personal friends. In fact,

they had worked together before forming GMM and enjoyed a relationship built

upon years of trust. (T. 276, 328). One partner, Michael Mullen had practiced law

with Respondent for twenty-two (22) years. (T. 129).

The firm was primarily an insurance defense firm, although it also did some

plaintiff’s work. (T. 130-131). Partner Mullen’s responsibilities included reviewing

cost write offs and expenditures. (T. 131). Upon review of one of Respondent’s

client files, Mullen discovered that while there was little activity in the case, there

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were nonetheless disbursements made for investigative costs. (T. 139). Further

review of partnership financial records and Respondent’s clients’ cost write offs

disclosed irregularities in charges for cost advances made by Respondent. (T.

145-150). The partner’s investigation soon disclosed that Respondent had charged

clients investigative costs when in fact no such costs had ever been incurred. (T.

136, 137). It soon became evident that Respondent had done this repeatedly – to a

multitude of clients. (T. 151). Additionally, it was discovered that on one

occasion, Respondent had directed the firm bookkeeper to issue a trust account

check to a third person unrelated to that particular client (Ryder Corporation) and

solely for Respondent’s own personal benefit. (See TFB Exhibits 3 and 12; T.

147-150, 162-163, 333). The partners, including Mullen, confronted Respondent

with all this information. (T. 137). At first, Respondent denied it. (T. 137, 276).

Subsequently, when confronted again, Respondent admitted to fraudulently

charging clients costs, obtaining firm funds to pay those fraudulent costs, and then

using those funds for his own personal benefit. The funds were used by

Respondent to finance his visits to high priced prostitutes. (T. 329-330, 332).

Mullen asked Respondent how he thought he intended to get away with it.

Respondent replied “I guess I did not think about it.” (T. 160).

Up until his partners’ discovery, Respondent had successfully devised and

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implemented a plan whereby he charged fraudulent investigative costs to clients and

then had the firm unwittingly pay those fraudulent costs directly to the operators of

the house of prostitution which he frequented.

Mullen asked the bookkeeper how Respondent was able to get firm checks

issued for these fraudulent costs. The bookkeeper informed Mullen that the

Respondent would ask for a monthly printout of his open files. He would then

prepare and submit a check request to the bookkeeper designating the amount of

money to be disbursed, the name of the person to whom the check should be

issued, the purpose of the check, and the client file to be charged. The file charged

was always one appearing on the previously requested monthly printout of open

files. The checks were always made payable to Eli Tish or another individual and

identified as investigative costs. (T. 141; TFB Comp. Exhibit 4).

Mullen testified that the Respondent had insisted on using Eli Tish as an

investigator. (T. 136). Mullen later found out that Eli Tish was not an investigator,

but rather the operator of a house of prostitution. (T. 137). So were the other

individuals Respondent had requested “cost” checks for. Respondent engaged in

these machinations over a seven year period ending in 2002. Respondent’s scheme

was stopped not by his own volition, but rather by his partners’ discovery of his

fraudulent and illegal acts. (T. 85). Mullen testified as to how Respondent had

1 The law firm had to hire a matrimonial attorney because as part ofRespondent’s divorce, he assigned to his wife his shares of the firm’s stock andhis share of the office condo. As a result, Respondent’s ex-wife litigated the valueof Respondent’s shares.

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violated the trust of his partners, friends, and clients by systematically and

intentionally defrauding them all, month after month, year after year, over a seven

year period. (T. 159). In total, Respondent misappropriated approximately

$111,790.00 in client and/or firm funds by stealing from 60 clients, 167 times over

seven years. (TFB Comp. Exhibit 4).

Respondent’s unethical criminal acts marred the firm’s reputation and stature

in the community. (T. 152-154). Mullen testified that Respondent’s actions

affected the firm in more ways than one could think. (T. 154). Respondent’s

actions caused the Federal Bureau of Investigation to raid the firm and necessitated

their hiring a criminal attorney. (T. 153). The firm also had to hire a corporate

lawyer, public relations firm, and a matrimonial lawyer1 as a direct result of

Respondent’s criminal actions. (T. 153). Respondent’s actions had a negative

impact on the firm’s ability to maintain their clients. Mullen testified that one of the

firm’s biggest clients, Ryder, after the discovery of Respondent’s actions, never

sent them another case . (T. 153). Additionally, Ryder requested an audit of all

their files handled by Respondent and demanded to be reimbursed and paid the

2 Although the firm handled both plaintiff and defense work, most of theircases were defense clients. Ryder was a defense client. Most of the checksrequested were charged as costs to defense clients. The Respondent’s checkrequests for investigative costs were billed directly to those defense clients. Theplaintiff clients would either be billed or the charge written off, and the firm wouldincur the cost.

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interest which had accrued from the time of Respondent’s misappropriations.2 (T.

142, 143, 144).

Throughout the seven year period, Respondent’s salary averaged

$460,000.00 a year. (T. 275, 277, 330). Respondent earned sufficient money to

finance his extracurricular activities. Instead, he chose to use money he stole from

his clients and/or law firm. (T. 275, 277).

Dr. Allsman was the Respondent’s treating physician and the only physician

to testify on his behalf. Dr. Allsman testified that Respondent first sought her help

in April, 2002, after he had been found out by his partners and terminated. (T. 83,

85). Dr. Allsman could not testify that Respondent suffered from major depression

during the seven year period in which his transgressions occurred. (T. 95). Dr.

Allsman could only give an opinion as to Respondent’s present mental state. (T.

95). Dr. Allsman also testified that the Respondent’s depression did not diminish

his capacity to know right from wrong, but rather how much he cared. (T. 94).

Mullen and the Respondent’s witnesses all testified that during the seven year

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period in question, Respondent had a happy demeanor and appeared to be a

competent attorney. Respondent had been practicing law for almost 25 years.

Respondent was criminally prosecuted as the result of his misconduct in the

United States District Court, Southern District of Florida, United States of America

v. Michael Murphy, Case No. 02-20639 Cr-Moore. Respondent pled guilty to one

federal felony count of knowingly and willfully devising a scheme to defraud,

obtaining money by means of false and fraudulent representations, and using the

United States Postal Service for the purpose of executing his scheme to defraud.

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SUMMARY OF ARGUMENT

The sole issue to be determined at the final hearing in this cause was that of

the appropriate discipline to be imposed. The discipline recommended by the

Referee has a reasonable basis in both case law and the Florida Standards for

Imposing Lawyer Sanctions and should be upheld. The presumption of

disbarment for rule violations involving misappropriation and felony conviction was

not overcome by Respondent’s mitigating evidence. Respondent’s futile attempt

to use his current mental condition as mitigation for his past misconduct defies the

evidence that was presented at trial. Respondent has failed to point to a single

piece of evidence or testimony to the contrary. Therefore, the Referee’s

recommendation of disbarment is appropriate and should be upheld.

Additionally, the trial court’s order quashing Respondent’s subpoena should

be upheld as Respondent has failed to show how the Referee abused his discretion.

Moreover, Respondent’s challenge to the lower court’s ruling in this regard is both

procedurally improper and substantively without any merit whatsoever. First, it is

clear from the record that Respondent did not properly preserve his allegation of

error. Respondent’s second argument is also substantively without any merit

because Respondent’s Brief argues matters not raised in his Petition for Review.

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ARGUMENT I

THE REFEREE DID NOT ERR IN RECOMMENDINGTHAT RESPONDENT BE DISBARRED

(Restated)

The sole issue to be determined at final hearing in this cause was that of

appropriate discipline to recommend. Prior to trial and following Respondent’s

factual admissions, the Bar sought and obtained summary judgment as to

Respondent’s violation of Rule 3-4.3 (... The commission by a lawyer of any act

that is unlawful or contrary to honesty and justice, whether the act is committed in

the course of the attorney's relations as an attorney or otherwise, whether

committed within or outside the state of Florida, and whether or not the act is a

felony or misdemeanor, may constitute a cause for discipline), Rule 3-4.4 (Criminal

Misconduct), Rule 4-1.5(a) (illegal, prohibited, or clearly excessive fees), Rule 4-

8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional

Conduct, knowingly assist or induce another to do so, or do so through the acts of

another); Rule 4-8.4(b) (a lawyer shall not commit a criminal act that reflects

adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other

respects); Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation); and Rule 5-1.1(a) (nature of money or property

entrusted to attorney) of the Rules Regulating The Florida Bar. Respondent

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concedes that there is a presumption of disbarment for violations of the rules

involving misappropriation and felony conviction, such violations being the heart of

the instant case. Review of the evidence presented, as well as applicable case law

and relevant Standards for Imposing Lawyer Sanctions, makes clear that the

Respondent failed to overcome the presumption of disbarment and that the Referee

did not err in recommending disbarment.

The discipline imposed by the Referee has a reasonable basis in both case

law and the Florida Standards for Imposing Lawyer Sanctions and should be

upheld. As this Court stated in The Florida Bar v. Vining, 761 So.2d 1044, 1048

(Fla. 2000):

The Court’s scope of review of a referee’s recommendeddiscipline, however, is broader than that afforded to findings offact because this Court has the ultimate responsibility to determinethe appropriate sanction. See The Florida Bar v. Niles, 644 So.2d504, 506 (Fla. 1994). Yet, the Court “will not second-guess areferee’s recommended discipline so long as that discipline has areasonable basis in existing case law.” The Florida Bar v.Lecznar, 690 So.2d 1284, 1288 (Fla. 1997).(Emphasis added).

The Florida Supreme Court has repeatedly stated that disbarment is the

presumed appropriate sanction to be imposed when an attorney is found guilty of

3 See, for example, The Florida Bar v. Shanzer, 572 So.2d 1382 (Fla. 1991);The Florida Bar v. Weinstein, 635 So.2d 21 (Fla. 1994); The Florida Bar v.Tillman, 682 So.2d 542 (Fla. 1996); and The Florida Bar v. Schiller, 537 So.2d 992(Fla. 1989).

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stealing client funds.3 While it is true that in some disciplinary matters the

presumption of disbarment has been rebutted by evidence of mitigation, the fact is

that in the overwhelming number of cases disbarment was imposed despite the

presentation of mitigating evidence.

The Florida Bar v. Graham, 605 So.2d 53, 56 (Fla. 1992), contains an

analysis of this Court’s views on the impact of mitigation on the presumption of

disbarment in misappropriation cases. In Graham, the respondent had presented

evidence of a lack of a prior disciplinary history and steps taken by him to remedy

trust account shortages. Additionally, Graham presented evidence of personal and

emotional problems including his father’s death, his mother’s illness, and financial

obligations. Graham argued that these factors had contributed to his emotional

state and unethical conduct. In response, the Court stated that a lawyer’s

misappropriation of client funds, accompanied by misrepresentation in order to

conceal the misappropriation, (an element present in the instant case), cannot be

excused as a means to solve life’s problems. The Court in Graham did continue

on to say that absent evidence casting doubt on a lawyer’s culpability, such as

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evidence of mental or substance abuse problems, a lawyer is held fully responsible

for any misconduct. Supra, p. 56.

The Court’s views on the impact of mental or substance abuse on discipline

can be better understood by review of The Florida Bar v. Shuminer, 567 So.2d 430

(Fla. 1990) and The Florida Bar v. Knowles, 500 So.2d 140 (Fla. 1986). In the

Knowles case, the lawyer argued that the imposition of disbarment for his

misappropriation of client funds was unduly harsh given the role that alcoholism

played in his acts of misconduct. In support of his contention, the respondent

pointed to the fact that at the time of discipline, he had not practiced law for three

years and had been successful in his sobriety for three years. In upholding the

Referee’s recommendation of disbarment, the Court recognized that alcoholism

was the underlying cause of Knowles’ misconduct, but nonetheless concluded that

it did not constitute a mitigating factor sufficient to reverse the disbarment

recommendation under the facts of the case. The facts of the case involved acts of

misappropriation over a period of four (4) years during which time Knowles

continued to work regularly. His income did not diminish as a result of his

alcoholism. Additionally, the clients he stole from were ones who had placed

significant trust in him. Under these circumstances, the Court concluded that

disbarment was the appropriate sanction despite his mitigating addiction to alcohol.

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Thus, the Court upheld the disbarment despite Knowles’ subsequent rehabilitation,

prompt payment of restitution to his victims, and lack of a prior disciplinary record.

Like the respondent in Knowles, Respondent continued to work in a regular

manner for at least the first six years of the seven year period of his misconduct.

Respondent’s witnesses testified that he handled his cases in a competent manner

and that they were satisfied with his performance. (T. 89-90, 198-199). Like

Knowles, Respondent stole from people that trusted and confided in him, his

clients and partners. Respondent only stopped because he got caught. Although

the Court in Knowles recognized that alcoholism was the primary cause of

Knowles’ misconduct, the Court concluded it was an insufficient mitigating factor

to overcome the presumption of disbarment. Respondent’s futile attempt to use

his current mental condition as mitigation for his past misconduct defies the

evidence that was presented at trial.

In The Florida Bar v. Shuminer, 567 So.2d 430 (Fla. 1990), the Court

reversed the Referee’s recommendation of an eighteen (18) month suspension and

instead imposed disbarment on an attorney despite evidence of his drug addiction,

concluding that he failed to establish that his addiction rose to a sufficient level of

impairment to outweigh the seriousness of his misconduct. As in Knowles,

Shuminer also worked effectively during the period in issue. Moreover, he used a

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significant portion of the funds he stole not to support his addiction, but to

purchase a luxury automobile.

The similarities between Michael Murphy, Respondent in the instant case,

and the respondents in the Shuminer and Knowles cases is inescapable. First and

foremost, while Respondent did present a psychologist, Dr. Allsman, who testified

that he currently suffers from depression, Respondent only sought treatment from

Dr. Allsman following the discovery of his acts. (T. 83, 85). Because Dr. Allsman

did not treat the Respondent prior to that time, Dr. Allsman’s opinions as to

whether Respondent suffered from depression prior to that time would be based

only on information given to Dr. Allsman by the Respondent himself. (T. 86). Dr.

Allsman did not conduct an independent forensic evaluation and therefore could

not state whether respondent suffered from depression prior to the onset of

treatment which began in April, 2002. (T. 95). Additionally, Dr. Allsman testified

that depression does not diminish one’s capacity to know right from wrong, but

rather diminishes how much one cares. (T. 94). Dr. Allsman also testified that she

could not say that Respondent was suffering from depression throughout the seven

year period, only from April, 2002. (T. 86-87, 95).

Respondent knew that he was stealing from clients and continued to do so

day after day, month after month, year after year. His machinations for stealing

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from clients and/or firm were planned and well thought out. (T. 331). Respondent

admitted that he knew what he was doing and that it was wrong. (T. 85, 331,332,

333). In fact, he only stopped stealing because he was caught. (T. 85,332).

Respondent, throughout the seven years, never told a soul because he knew it was

wrong and did not want to get caught. (T. 332).

Thus, there was no significant evidence before the Referee as to

Respondent’s suffering from depression prior to April, 2002. The evidence that

was presented indicated that Respondent continued to function in his usual manner

during the seven year period in which he committed his 167 separate acts of

misconduct.

Equally important, we know that Respondent stole money in order to

purchase time with prostitutes and that all the funds he stole were used for that

purpose and that purpose alone. In fact, in every single instance, Respondent was

manipulating the issuance of firm checks made payable directly to those individuals

running the brothel he chose to frequent; those payments having been charged to

his clients disguised as investigative costs incurred in connection with the legal

matter Respondent was handling for them. Respondent’s actions in this case

ultimately resulted in a federal felony conviction for mail fraud. Respondent

intentionally and fraudulently stole from clients for his own benefit.

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The Referee was mindful of the Respondent’s character witnesses’

testimony. Despite the Referee finding Respondent’s mitigating evidence moving

and emotional, (ROR, p. 10), the Referee found that the Respondent’s egregious

behavior and the length of time during which it occurred was impossible to ignore.

(ROR, p. 10). Additionally, even if this Court were to conclude that Respondent

did suffer from depression during the seven years at issue, his depression did not

rise to a level sufficient to overcome the presumption of disbarment.

In The Florida Bar v. Golub, 550 So.2d 455 (Fla. 1989), the lawyer was

disbarred despite his alcoholism, given his theft of approximately $24,000.00 from

an estate in which he represented the personal representative. In addition to his

alcoholism, other mitigating factors included Golub’s cooperation in the

disciplinary proceedings, voluntary self-imposed suspension beginning three years

prior to the Court’s imposition of discipline, and the lack of a prior disciplinary

record. In disbarring Golub, the Court weighed the extent of the mitigation against

the seriousness of the misconduct concluding that the theft of “substantial sums of

money over an extended period of time from a client who had bestowed his trust

upon the respondent to see that the client’s beneficiaries were cared for after his

death” (at p. 456) warranted disbarment. It is significant to note that in the instant

case, Respondent betrayed not only his client’s trust, but his partners as well.

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Despite Respondent’s lack of prior discipline, Respondent stole from his clients

and firm for approximately seven years. Respondent’s conscious and deliberate

theft and repeated lies cannot be ignored. At least sixty (60) clients were affected.

Respondent methodically took clients’ funds at least 167 times throughout the

seven year period. Like in Golub, the extent of the Respondent’s misconduct

outweighs the mitigating factors presented by the Respondent. Respondent’s

evidence of his current mental condition fails to overcome the presumption of

disbarment.

Respondent also pled guilty to a federal felony count of mail fraud.

Respondent intentionally and willfully devised a scheme to defraud his clients and

partners by creating false investigative fees and charging it to his clients and/or

partners. The Referee found that Standard 5.11(b) which refers to “serious”

criminal misconduct pertains to this case. Seven years of criminal misconduct has

been admitted by the Respondent in pleadings, trial, and plea. The Referee also

found Standard 5.11(a) applies. It states that disbarment is appropriate when “a

lawyer is convicted of a felony under applicable law.” This Court has routinely

found that the seriousness of an offense can warrant disbarment despite the

presence of mitigating factors. See, The Florida Bar v. Cueto, 834 So.2d 152

(Fla. 2002), The Florida Bar v. Rendina, 583 So.2d 314 (Fla. 1991), The Florida

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Bar v. Wolis, 738 So.2d 1057 (Fla. 2001), The Florida Bar v. Horne, 527 So.2d

816 (Fla. 1988), and The Florida Bar v. Dougherty, 769 So.2d 1027 (Fla. 2000).

In The Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003), the respondent

worked in a firm which by policy expressly prohibited him from independently

representing the firm’s clients or prospective clients. Nonetheless, the respondent

created his own professional association (P.A.) through which he surreptitiously

represented clients during his employ. Further, he solicited firm clients by

intercepting calls to the firm and deposited firm fees he had obtained from firm

clients into his own P.A. account. The latter was accomplished in part by his

interception of firm mail and other fraudulent acts. Arcia admitted to depriving the

firm of approximately $62,000.00 in legal fees over a one and a half to two year

span.

The referee in Arcia found that the actions constituted a theft of firm funds.

The referee also found in aggravation: (1) dishonest or selfish motive, (2) pattern of

misconduct, (3) multiple offenses, (4) vulnerability of victim, and (5) bad faith

obstruction of the disciplinary proceeding. The referee considered in mitigation: (1)

lack of prior discipline, (2) personal or emotional problems, (3) timely restitution,

(4) character or reputation, (5) interim rehabilitation, and (6) remorse. Although this

Court upheld the referee’s recommendation of a three year suspension, this Court

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also stated that theft of firm funds has been held to constitute grand theft and

concluded that for purposes of attorney discipline, theft of firm funds is serious

enough to warrant disbarment under most circumstances. In deferring to the

referee’s recommendation of a three year suspension, the Court noted that the bar

had not cross appealed, but it did emphasize that future cases involving theft of

firm funds would carry a presumption of disbarment. (Id, at 300).

In the instant case, Respondent stole from his firm and clients for a period of

seven years and was ultimately felony convicted as a result. As evidenced by the

foregoing, the case law clearly provides that given the seriousness with which theft

of client funds is viewed, even theft of firm funds, disbarment is presumed to be

the appropriate sanction absent sufficient evidence of mitigation. To be sufficient,

the evidence of mitigation must outweigh the seriousness of the misconduct. Even

considering the mitigating factors presented by Respondent, the Referee concluded

that the presumption of disbarment was not overcome. (ROR, p. 10-11).

Additionally, the Referee acknowledged that Florida Standards for Imposing

Lawyer Sanctions should be applied in the context of mitigating and aggravating

factors. The Referee found the following standards applied to the instant case:

• Standard 4.11 - Disbarment is appropriate when a lawyerintentionally or knowingly converts client property regardless ofinjury or potential injury.

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• Standard 4.61 - Disbarment is appropriate when a lawyerknowingly or intentionally deceives a client with the intent tobenefit the lawyer or another regardless of injury or potential injuryto the client.

• Standard 5.11(a) - Disbarment is appropriate when a lawyer isconvicted of a felony under applicable law.

• Standard 5.11(b) - Disbarment is appropriate when a lawyerengages in serious criminal conduct, a necessary element of whichincludes intentional interference with the administration of justice,misrepresentation, fraud, extortion, misappropriation, or theft.

• Standard 5.11(f) - Disbarment is appropriate when a lawyerengages in conduct involving dishonesty, fraud, deceit, ormisrepresentation that seriously adversely reflects on lawyer’sfitness to practice.

• Standard 7.1 - Disbarment is appropriate when a lawyerintentionally engages in conduct that is a violation of a duty owedas a professional with intent to obtain a benefit for lawyer oranother, and causes serious or potentially serious injury to a client,the public or the legal system.

In attempting to dissuade this Court from upholding the Referee’s

recommendation of disbarment, Respondent primarily argues two points. They

include Respondent’s state of mind at the time of the misconduct and the

prosecutor’s recommendation of a downward departure at Respondent’s

sentencing for his federal felony conviction. Both arguments were presented to the

Referee who after weighing the evidence and hearing argument found it insufficient

to overcome the presumption of disbarment.

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Despite Respondent’s contention that the Referee erred in evaluating the

evidence regarding Respondent’s mental state and/or depression at the time of the

misconduct, the record is replete with testimony by Respondent’s treating doctor,

Dr. Allsman, that she could only attest to his mental state during the period of her

treatment. (T. 95). Moreover, Respondent has failed to point to a single piece of

evidence or testimony to the contrary. The party seeking review of a referee’s

findings and/or recommendations carries the burden of showing they are clearly

erroneous or lacking in evidentiary support. The Florida Bar v. McClure, 575

So.2d 176 (Fla. 1991). Where a party contends the referee’s findings of fact and

conclusions as to guilt (or innocence) are erroneous, that party must demonstrate

that there is no evidence in the record to support those findings or that the record

evidence clearly contradicts the conclusion made. The Florida Bar v. Rue, 643

So.2d 1080 (Fla. 1994). In the absence of such a showing, the referee’s findings

will be upheld. The Florida Bar v. Hayden, 583 So.2d 1016 (Fla. 1991); The

Florida Bar v. McKenzie, 442 So.2d 934 (Fla. 1984). Respondent has failed to

satisfy his burden. The Referee heard the evidence and specifically found the

egregious acts and length of time which they occurred were impossible to ignore

and further, that the mitigation could not overcome the presumption of disbarment.

Respondent further attempts to mitigate his discipline by arguing that this Court

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should consider the fact that in his criminal case, the prosecutor recommended a

downward departure from federal sentencing guidelines. However, Respondent’s

attempt to use the downward departure as mitigation is misguided. The appropriate

guidelines, indeed the only guidelines to follow, are those adopted by the Florida

Supreme Court. They are embodied in the Standards For Imposing Lawyer

Sanctions and they support disbarment. Respondent contends that his downward

departure sentencing is evidence of his likelihood of rehabilitation. However,

practicing law is a privilege and not a right. Respondent misappropriated client

funds for seven years; he lied the entire time in order to avoid being “caught”. His

behavior was egregious and strikes at the very core of our profession: integrity.

The Florida Bar v. Korones, 752 So.2d 586 (Fla. 2000), is directly on point. There

this Court found that disbarment was appropriate where the attorney intentionally

misappropriated client funds irrespective of the mitigating evidence enumerated in

the Standards.

Nonetheless, to support his position, Respondent cites to The Florida Bar v.

Farbstein, 570 So.2d 933 (Fla. 1990). That case is inapposite. In Farbstein, the

respondent misappropriated client funds, showed substantial mitigating evidence

of his drug and alcohol addiction, and made full restitution. He further argued that

the misappropriation was unintentional. It was in the approximate amount of

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$13,143.44. By stark contrast, the Respondent in the instant case devised a

scheme whereby he stole approximately $111,790.00 over seven years.

Respondent’s misconduct affected 60 clients, his partners, and the firm’s

reputation. There were 167 separate incidents. Respondent’s citations to case law

simply do not support his argument.

Respondent concocted a method by which he was able to steal $111,790.00

belonging to his clients and law firm. He committed the theft via 167 separate

incidents affecting 60 different clients over a period of seven years. He used the

stolen money to finance his sexual interludes with prostitutes. Respondent was

stopped not by his own volition, but rather by his partners’ discovery of his

fraudulent and illegal acts. He was ultimately convicted of a federal felony as a

result of his misconduct.

The foregoing establishes that there is ample case law to support the

Referee’s recommendation of disbarment. Florida’s Standards for Imposing

Lawyer Sanctions also support disbarment. The Referee’s recommendation of

disbarment is appropriate and should be upheld.

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ARGUMENT II

THE REFEREE DID NOT ERR IN GRANTING THEFLORIDA BAR’S MOTION FOR PROTECTIVE

ORDER AND/OR TO QUASH SUBPOENA(Restated)

For his second argument, Respondent contends that the Referee erred by

not signing his subpoena duces tecum because it denied his access to information

that would have inured to his benefit. In the proceeding below, Respondent

subpoenaed The Florida Bar for discovery of cases which would have supported

discipline less severe than disbarment and the Referee, pursuant to The Florida

Bar’s objection and in the exercise of his sound discretion, declined to issue the

subpoena.

According to Rule 3-7.11(d)(1) of The Rules Regulating The Florida Bar,

subpoenas for the attendance of witnesses and production of evidence before a

Referee shall be issued by the Referee and served according to law or by an

investigator employed by The Florida Bar. In addition, according to Mathews v.

Kant, 427 So.2d 369 (Fla. 2d DCA 1983), a court may not quash a subpoena

issued pursuant to Fla. R. Civ. P. 1.410(b) unless the subpoena is unreasonable

and oppressive and by necessary implication, there must be some facts before the

court tending to show the unreasonableness and oppressiveness of the subpoena.

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The sufficiency thereof is a factual determination for the trial judge who is vested

with broad judicial discretion in the matter, and whose order will not be overturned

absent a clear showing of abuse of discretion. Id.

Thus, the trial court’s order quashing Respondent’s subpoena should be

upheld as Respondent has failed to show how the Referee abused his discretion.

Therefore, Respondent’s challenge to the lower court’s ruling in this regard is both

procedurally improper and substantively without any merit whatsoever.

Respondent’s procedural challenge is fatally flawed in two ways. First, it is

clear from the record that Respondent did not properly preserve his allegation of

error. Indeed, Respondent never objected to the quashing of the subpoena until the

filing of this Initial Brief. (See brief at p. 10).

Moreover, the circumstances considered by the Referee before granting The

Florida Bar’s motion were as follows: A few days before the final hearing was set,

Respondent attempted to have The Florida Bar served with a subpoena duces

tecum. On March 21, 2003, before the Referee signed the subpoena, The Florida

Bar filed a Motion for Protective Order and/or Quashing the Subpoena. The

Referee entered his order granting The Florida Bar’s motion on March 21, 2003.

Consequently, the Referee never signed the subpoena duces tecum. Respondent’s

final hearing was set for March 25, 2003. Respondent neither filed a response in

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opposition to The Florida Bar’s Motion For Protective Order and/or To Quash the

Subpoena nor did he set the matter for hearing. Furthermore, Respondent failed to

file any objection whatsoever to the Referee’s order even after it was entered.

It is well-settled that in order to successfully raise an issue on appeal, that

issue must have been properly preserved for appellate review. There must have

been a timely objection made in the trial court which clearly articulates the specific

grounds and legal argument upon which the objection is based. Thomas v. State,

645 So.2d 185 (Fla. 1994). In this case, Respondent failed to properly object to

the non-issuance of his requested subpoena and therefore has now, by so failing,

completely waived his right to appellate review of the alleged error. Likewise, it is

equally well-settled that absent fundamental error, a party must object to the trial

court and obtain the court’s ruling in order to preserve the issue for appellate

review. Macdonald v. Dept. of Children and Families, 2002 WL 32178967 (Fla 4th

DCA 2003).

The second prong of Respondent’s second argument is also substantively

without any merit because Respondent’s Brief argues matters not raised in his

Petition for Review. Respondent’s Petition seeks review only on the basis of

“those facts which the Referee relied upon for disbarment as opposed to a lengthy

suspension.” However, in his Initial Brief, Respondent has inappropriately

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attempted to expand the above-mentioned argument to include a challenge to the

lower court’s ruling that was not properly preserved for appellate review.

Rule 3-7.7(c)(1) of The Rules Regulating The Florida Bar specifically

requires that a petition for review identify the basis of the legal arguments. Parties

should specify in their petitions for review the issues for which review is sought.

The Florida Bar v. Cueto, 834 So.2d 152 (Fla. 2002). In Cueto, this Court stated

that a party’s failure to specify a challenge to a particular portion of the referee’s

report in the petition for review, followed by raising it in the brief, whether

intentional or not was akin to a tactical ambush of the opposing party. Id. at 155.

Thus, this Court specified that all parties in future cases are expected to

comply with Rule 3-7.7(c) by detailing in their petitions for review all portions of

the Referee’s report which they seek review of or by filing a proper late-filed

petition or cross-petition. Id at 155.

In the instant case, Respondent failed to comply with Rule 3-7.7(c) by both

failing to challenge the trial court’s ruling below (which would have preserved the

issue for appellate review) and by failing to specify the precise issue in his petition

for review. Instead, Respondent continues his surprise attacks – four days before

the final hearing, Respondent attempted to serve The Florida Bar with an

inappropriate subpoena duces tecum; Respondent did not object or respond to

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The Bar’s Motion to Quash; Respondent did not set the matter for hearing; and

after the Referee’s order granting The Bar’s motion, Respondent, again, did not

object or respond in any manner. Now, on appeal, Respondent again makes no

mention of his objection in his Petition for Review. In fact, Respondent decides to

raise his objection to the quashing of the subpoena issue for the first time in his

Initial Brief. Respondent failed to properly preserve this issue below, failed to raise

it in his Petition for Review, and now attempts to have this Court review his alleged

error by “bringing it in through the back door.” This is precisely the “tactical

ambush” that this Court disfavored in Cueto, supra.

Irrespective of this blatant attempt to circumvent clearly established normal

rules of appellate procedure, Respondent cannot succeed on the merits.

Respondent does not show (and cannot show) that the trial court should have

allowed his belated and unjustified discovery request.

In prior litigation, Respondent’s attorney, Mr. Friedman, represented

another respondent on an unrelated matter. Mr. Friedman is now attempting to

interject his interpretation of what transpired in that case and apply it to the instant

case. Mr. Friedman’s personal anecdotes of his litigation experiences are wholly

irrelevant. Mr. Friedman introduces no precedent binding on this or any other

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court as a result of those experiences. As a result, those arguments are

inappropriate and should be rejected.

As further evidence of Respondent’s substantively deficient argument, it

should be noted that his subpoena requested production of disciplinary records of

a former bar counsel. Even if such disciplinary records existed, such information

would be irrelevant to the instant proceeding and therefore inadmissable. A

subpoena duces tecum may not be used as a fishing expedition with a view to

ascertaining whether something of value may show up. McCarty v. Schultz, 372

So.2d 210 (Fla. 3d DCA 1979).

Additionally, Respondent is not entitled to production of any documents

which are non-public as defined by Rule 3-7.1 of the Rules Regulating The Florida

Bar. Assuming, arguendo, that Respondent would be entitled to the documents

because they were public, Respondent’s request for records is nothing more than

an effort by Respondent to have bar counsel do his research for him. Respondent

did not make any efforts to obtain these records in a timely manner. The same

information which is available to bar counsel is available to Respondent through a

public records request. Discovery may not be used to compel an opposing party

to conduct one’s investigation. Cabrera v. Evans, 322 So.2d 559 (Fla. 3d DCA

1975). Moreover, a party is not entitled to production of documents absent a

- 31 -

showing that the party requesting documents needs the materials and is unable to

obtain them through other means without substantial hardship. Hartford Acc. &

Indem. v. U.S.C.P. Co., 515 So.2d 998 (Fla. 4th DCA 1987). Additionally,

Respondent should not be allowed to discover the information through a subpoena

when the failure to obtain the information is due solely to Respondent’s inaction.

In conclusion, Respondent has waived his challenge to the Referee’s pre-trial

order by failing to properly preserve this issue for appeal. Moreover,

Respondent’s argument is devoid of any merit whatsoever. Accordingly, this issue

should not be reviewed by this Court and the trial court’s ruling to quash the

subpoena should be upheld.

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CONCLUSION

Respondent has not established the existence of error. The Referee’s

Report recommending disbarment is consistent with case law and the Florida

Standards for Imposing Lawyer Sanctions and should be approved .

______________________________VIVIAN MARIA REYESBar CounselTFB No. 004235The Florida Bar444 Brickell AvenueSuite M-100Miami, Florida 33l3lTel: (305) 377-4445

JOHN ANTHONY BOGGSStaff CounselFlorida Bar No. 253847The Florida Bar 650 Apalachee ParkwayTallahassee, Florida 32399-2300(850) 561-5839

JOHN F. HARKNESS, JR.Executive DirectorFlorida Bar No. 123390The Florida Bar 650 Apalachee ParkwayTallahassee, Florida 32399-2300(850) 561-5839

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven copies of The FloridaBar’s Answer Brief was forwarded via Airborne Express, airbill no. 3370017022, tothe Honorable Thomas D. Hall, Clerk, Supreme Court of Florida, Supreme CourtBuilding, 500 South Duval Street, Tallahassee, Florida 32399-1927, and a true andcorrect copy was mailed to Nicholas R. Friedman, Attorney for Respondent, at hisrecord Bar address of Post Office Box 1521, Boone, North Carolina 28607, andhis other known address of 1823 Phillip’s Branch Road, Vilas, North Carolina 28692, and to John Anthony Boggs, Staff Counsel, The Florida Bar, 651 EastJefferson Street, Tallahassee, Florida 32399-2300, on this _______ day ofOctober, 2003.

_____________________________VIVIAN MARIA REYESBar Counsel

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

I HEREBY CERTIFY that the Brief of The Florida Bar is submitted in 14point proportionately spaced Times New Roman font, and that the computer diskfiled with this brief has been scanned and found to be free of viruses, by NortonAntiVirus for Windows.

_____________________________VIVIAN MARIA REYESBar Counsel

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INDEX TO APPENDIX

A. Report of Referee in the matter of The Florida Bar v. Michael JosephMurphy, Supreme Court Case No. SC02-1749, The Florida Bar File No.2002-70,667(11D), dated May 30, 2003.