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Transcript of IN THE SUPREME COURT OF FLORIDA€¦ · · 2014-07-02IN THE SUPREME COURT OF FLORIDA ......
IN THE SUPREME COURT OF FLORIDA
ANSWER BRIEF OF PETITIONER
Supreme Court Case No.: 04-650
TFB No.: 2004-11,461 (20A) (HRE) NADEGE ELLIOTT, ESQ. THE FLORIDA BAR Respondent Petitioner PO Box 150773 Barry W. Rigby Cape Coral, FL 33904 650 Apalachee Pkwy. (239) 573-3632 Tallahassee, FL 32399
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TABLE OF CONTENTS PAGE TABLE OF CONTENTS…………………………………………………………...i TABLE OF AUTHORITIES………………………………………………….…..iii SYMBOLS AND REFERENCES………………………………………………...iv STATEMENT OF THE CASE…………………………………………………….1 STATEMENT OF THE FACTS…………………………………………………..2 SUMMARY OF THE ARGUMENT……………………………………………...3 ARGUMENT………………………………………………………………………5
1. THE REFEREE CORRECTLY FOUND THAT PETITIONER ESTABLISHED, BY CLEAR AND CONVINCING EVIDENCE, THAT SHE IS FIT TO RESUME THE PRACTICE OF LAW.
A. Referee makes a finding of fact that Petitioner is in strict compliance
with disciplinary order………………………………………………..5
B. Referee made a finding of fact that Petitioner provided evidence of unimpeachable character and moral standing in the community……………………………………………………………6
C. Referee finds that the ample evidence in the record attest to
Petitioner’s reputation for professional ability……………………….8
D. Referee made a finding of fact that Petitioner holds no malice or ill feeling…………………………………………………………………9
E. Referee makes a finding of fact that Petitioner offers corroborated
personal assurances………………………………………………….11
F. Restitution of funds: Not applicable………………………………...12
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G. Referee finds that Petitioner shows positive actions showing rehabilitation………………………………………………………...12
CONCLUSION…………………………………………………………………...13 CERTIFICATE OF SERVICE……………………………………………………14 CERTIFICATE OF COMPLIANCE OF FONT AND STYLE…………………..15
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TABLE OF AUTHORITIES
CASES PAGE The Florida Bar vs. Dunagan, 775 So.2d 969 (Fla. 2000)……………………3, 4, 5 In re Dawson, 131 So.2d 472 (Fla. 1961)………………………………………….3 The Florida Bar vs. Grusmark, 662 SO.2d 1235 (Fla. 1995)………………………5 Florida Bar in re Hurtenbach, 157 So.2d 348 (Fla. 1946)……………………….11 Florida Bar re. Janssen, 643 So.2d 1065, 1067 (Fla. 1994)……………………….3 The Florida Bar in re Inglis, 471 So.2d 38 (Fla. 1985)……………………………8 RULES REGULATING THE FLORIDA BAR Rule 3-7.10(f)(3)(A)-(G)……………………………………………………...1, 3, 5 Rule 3-7.10(f)(3)……………………………………………………………………5 Rule 3-7.10(f)(3)(B)………………………………………………………………..6 Rule 3-7.10(f)(3)(C)………………………………………………………………..8 Rule 3-7.10(f)(3)(D)………………………………………………………………10 Rule 3-7.10(f)(3)(E)……………………………………………………………….12 Rule 3-7.10(f)(3)(F)……………………………………………………………….13 Rule 3-7.10(f)(3)(G)………………………………………………………………13
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SYMBOLS AND REFERENCES In this Answer Brief, the Florida Bar, Petitioner in these proceedings, will be
referred to as “Florida Bar” or “the Bar.” Nadege Elliott, the Respondent of this
matter, will be referred as “Ms. Elliott” or “Petitioner.”
“TR” will refer to the transcript of the proceedings of the final hearing on
the Petition for Reinstatement held on August 23 and 24, 2004.
The Report of the Referee will be referred to or “RR.”
Exhibits will be referred as “TFB Exh.” for the Florida Bar’s exhibits and
“Pet exh.” for reference of exhibit by the Petitioner.
The Rules regulating the Florida Bar will be referred to as “Rule” or
“Rules.”
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STATEMENT OF THE CASE
Petitioner was suspended from the practice of law effective July 25, 2003 for
a duration of six (6) months as a result of a plea of no contest for the misuse of a
notary stamp, failure to adequately maintain trust account records and sending
inflammatory e-mail to a third party. Soon after the termination of her suspension,
Petitioner filed a Petition for Reinstatement. A final hearing on the Petition for
held on August 23 and 24, 2004. Petitioner presented nine (9) witnesses, including
Petitioner. The Bar presented one rebuttal witness, not bearing any testimony upon
the issue of Reinstatement. Upon hearing witnesses for the Petitioner, the Referee
found that Petitioner met, by clear and convincing evidence, all the requirements as
set forth in 3-7.10(3)(A)–(G), Rules Regulating the Florida Bar. The Florida Bar is
appealing the Referee’s recommendation for reinstatement.
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STATEMENT OF THE FACTS
Petitioner was suspended from the practice of law for six (6) months. Upon
the termination of the period of suspension, Petitioner filed a Petition for
Reinstatement. The Florida Bar did not file and Answer or an objection to the
Petition. The matter proceeded to final hearing where counsel for the Florida Bar
stated on the records that the Bar had no objection to the Petition. Petitioner
introduced eight (8) independent witnesses to testify as to her character, her
professional ability and her fitness to resume the practice of law. Additionally,
Respondent/Petitioner introduced and the Referee accepted into evidence letter
from other attorneys in the area attesting to Respondent/Petitioner’s fitness and
professional ability.
The Bar presented one rebuttal witness in an attempt to disprove Petitioner’s
testimony that she apologized to said counsel and the third party. The Referee
rejected the testimony of the Bar’s witness. TR 274.
The Referee made finding of facts, stating that the substantial evidence in
the record support that Petitioner, by clear and convincing evidence, has met the
burden of proving her rehabilitation and therefore recommended reinstatement.
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SUMMARY OF THE ARGUMENT The Referee filed his report finding that Petitioner has proven, by clear and
convincing evidence, the required elements of rehabilitation as set out in In re
Dawson, 131 So.2d 472 (Fla. 1961). “A Referee’s findings of fact carry a
presumption of correctness that should be upheld unless clearly erroneous or
without support in the record.” Florida Bar re. Janssen, 643 So.2d 1065, 1067
(Fla. 1994). The Florida Bar has failed to demonstrate that the Referee’s report is
erroneous, unlawful or unjustified. In an attorney reinstatement proceeding, the
party seeking review of the referee’s recommendation has the burden to
demonstrate that the report is erroneous, unlawful or unjustified. The Florida Bar
vs. Dunagan, 775 So.2d 959 (Fla. 2000). Absent of showing good cause, this
Court should not review the Referee’s finding of fact that is the basis of the
recommendation for reinstatement.
The Referee found that, as required by 3-7.10(3)(A)-(G), Rules Regulating
the Florida Bar, Petitioner proved by clear and convincing evidence that she is
entitled to resume the practice of law. Firstly, the Bar stipulated that Respondent
fulfilled the obligations of her suspension as required by 3-7.10(3)(A) Rules
Regulating the Florida Bar. The Bar further stipulated that it had no objection to
the Petitioner’s request for reinstatement. TR 23. The Bar only filed a Notice of
Appearance and filed no further document objecting to the Petition for
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Reinstatement. Lastly, the Bar presented no evidence refuting Petitioner’s
evidence supporting her petition for reinstatement.
Respondent presented eight (8) witnesses including former clients, a former
assistant, members of the clergy and other religious affiliation as well as letters of
recommendation from other attorneys in the locality, which are part of the record.
The Bar neither presented witnesses to rebut Petitioner’s witnesses nor presented
its own witnesses to disprove Petitioner’s rehabilitation.
A repeat of the previous proceedings that led to the suspension is not and
must not be considered as evidence to deny reinstatement. The substantial
evidence in the record supports the Referee’s holding that Petitioner should be
reinstated to the practice of law. As to referee’s finding of fact in an attorney
reinstatement proceeding, they should be upheld unless clearly erroneous or
without support in the record. Dunagan at 961. Therefore, the recommendation
of the Referee must be approved.
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ARGUMENT
I. THE REFEREE CORRECTLY FOUND THAT PETITIONER ESTABLISHED, BY CLEAR AND CONVINCING EVIDENCE, THAT SHE IS FIT TO RESUME THE PRACTICE OF LAW.
In a reinstatement proceeding, the party seeking review of the referee’s
recommendation has the burden to show that the report is erroneous, unlawful or
unjustified. The Florida Bar vs. Grusmark, 662 So.2d 1235 (Fla. 1995). As to
referee’s finding of fact in an attorney reinstatement proceeding, they should be
upheld unless clearly erroneous or without support in the record. The Florida Bar
vs. Dunagan, 775 So.2d 959 (Fla. 2000). Based on Petitioner’s own testimony,
along with the testimonies of Petitioner’s witnesses, the Referee agrees that
Petitioner has met, by clear and convincing evidence, the burden of establishing
Petitioner’s fitness to resume the practice of law as required by 3-7.10(3)(A)-(G).
A. Referee makes a finding of fact that Petitioner is in strict
compliance with disciplinary order.
The Referee accurately finds that Petitioner has satisfied the requirement of
3-7.10(3)(A), Rules Regulating the Florida Bar, by clear and convincing evidence
and by concession of the Bar. Petitioner presented, and the Bar conceded, that
Petitioner is in strict compliance with the specific conditions of the disciplinary,
judicial, administrative or other order, satisfying the primary requirements of Rule
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3-7.10(f)(3), Rules regulating the Florida Bar. The Referee specifically stated: “…
I'll find that Ms. Elliott has strictly complied with all of the impositions that were
placed upon her in her criminal case in which she was placed on probation;
probation was terminated early after she had successfully completed all of the
conditions of her probation, and I will find that she has been in strict compliance
with the conditions of the instant recommendation and order of the Supreme Court
concerning this immediate matter. She has engaged the services of Pedro Pizarro,
who has been employed to continually and constantly review her trust account
records on a monthly basis, he's doing that and he's doing that through, so far as I
know, even today. So that criterion has been established in favor of Petitioner.”
TR 262.
Since the Bar concedes that Petitioner has met this burden, and based on the
Referee’s finding of fact that Petitioner has met this burden by clear and
convincing evidence, this ruling should not be disturbed.
B. Referee made a finding of fact that Petitioner provided
evidence of unimpeachable character and moral standing in the community.
The Referee finds that Petitioner, by clear and convincing evidence, has
unimpeachable character and moral standing in the community, satisfying the
requirement of 3-7.10(3)(B), Rules Regulating the Florida Bar. At Final Hearing,
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Petitioner presented eight (8) witnesses who testified as to her character and moral
standing in the community. After careful consideration of each witness’s
testimony, the Referee finds that Petitioner’s witnesses “are people who really
have no particular interest in these matters other than to articulate and share with
me what their experiences have been with Ms. Elliott and what their heartfelt and
honest impressions of Ms. Elliott's character and moral standing is; and the
witnesses have all testified that she is a person of high moral character personally,
and also of high moral standing in the community.” TR 263-264. Each witness
testified that Petitioner was a person of high moral character, of honesty and
integrity. Also, each witness presented testimonial evidence that Petitioner’s good
moral character is established in the community and is well respected in the
community. Lloyd Sawyer and Tonya Bibb, former client of Petitioner, testified
that Petitioner was a lawyer of her word, performed work to their satisfaction and
will hire Petitioner again. TR 30, 94, 95. Other witnesses testified that they knew
others who petitioner represented and heard high praise of Petitioner’s services.
The Bar presented no witnesses to refute these testimonies or present contrary
evidence as such.
The Referee’s finding of fact as to Petitioner’s unimpeachable character and
high moral standing in the community cannot be disturbed. The Bar’s argument
that the record does not support the Referee’s finding of fact is flawed. The
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Referee, having heard and observed the witnesses, is in a better position to judge
the credibility of these witnesses and the veracity of their testimonies. Time and
again, this Court has held that a Referee’s finding of fact will not be disturbed.
C. Referee finds that the ample evidence in the record attest
to Petitioner’s reputation for professional ability. The Referee finds that Petitioner has shown, by clear and convincing
evidence that Petitioner has a good reputation for professional ability, therefore
satisfying the requirement of 3-7.10(3)(C), Rules Regulating the Florida Bar.
Petitioner presented witnesses and letters from others in the community that attest
to Petitioner’s professional ability. Two of witnesses are former clients and the
other assisted the Petitioner in her office. The former clients testified that they
were very satisfied with the representation, will recommend Petitioner to others
and will engage the services of Petitioner in the future. TR 30, 94. Letters from
other attorney in the community are part of the records, where these attorneys
attest that Petitioner “possesses all the personal attributes of character and
competence expected of a member of the Bar.” This Court holds that when the
period of suspension is only a few months, continued professional ability can be
shown by competent testimony showing reputation for professional ability.” The
Florida Bar in re Inglis, 471 So.2d 38 (Fla. 1985).
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Also, The Referee, having been present in the courtroom, was in a better
position to observe the witnesses and their demeanor and ascertain the veracity of
their testimonial. The Referee weighted the witnesses’ testimonies and finds that
based on the evidence presented Petitioner has met, with clear and convincing
evidence, “that [Petitioner] has a good reputation for professional ability. TR 275.
Also, other letters of recommendation were made part of the record, where other
attorneys who have been associated with Petitioner, attested to Petitioner’s
professional ability. More specifically, the Referee holds that “the evidence has
established that she has a good reputation for professional ability … and we
actually have some evidence, one from Vernon Fairchild, who is an attorney, who
said that he had been involved with her in prior domestic relations cases and he
found her competent to practice, she articulated her client's position in a
professional manner, seemed to have a sufficient grasp of the law to be a
meaningful advocate for her client, she was also ‘courteous to me as opposing
counsel and showed not the slightest disrespect for the Court. I think that the
evidence has established that she has a good reputation for professional ability.”
TR 275-277. Emphasis added. The Referee’s finding of facts, as well as the
ample evidence in the record, demonstrates Petitioner to have professional ability.
The Bar fails to show this Court that the Referee’s finding of fact as to Petitioner’s
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professional ability is clearly erroneous, not supported by the record, or is
unjustified. Therefore, the Referee’s finding should be upheld.
D. Referee made a finding of fact that Petitioner holds no
malice or ill feeling.
The Referee made a clear and unambiguous finding of fact that Petitioner
has demonstrated, by clear and convincing evidence, that Petitioner lacks malice or
ill feeling towards those who were compelled to bring about the disciplinary
proceedings. The Referee finds that Petitioner has met the requirement of 3-
7.10(3)(D), Rules Regulating the Florida Bar. All of Petitioner’s witnesses
testified that they are aware of the circumstances surrounding Petitioner’s
suspension and to their knowledge Petitioner blames herself, has never heard
Petitioner harboring any ill feeling or malice toward those on the other side of
these proceedings and hold no malice toward anyone else associated with the
matter. One witness, Lloyd Sawyer, does not recall the circumstances of the
suspension because he did not want to know the details of the cause of the
suspension. Mr. Sawyer testified that Petitioner has attempted to tell him the cause
of the suspension but was not interested. TR 30. Mr. Sawyer also testified that he
was aware that Petitioner was “having troubles with the Bar” and never expressed
any malice or ill feeling toward the Bar or anyone else.
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Petitioner also testified that she holds herself responsible for the cause of her
suspension and blames no one. The Referee finds that the witnesses, including the
testimony of the Petitioner were credible. The Referee states: “I do believe that
she [Petitioner] has a lack of malice and ill feeling towards those who, by duty,
were compelled to bring about the judicial and other proceedings …” TR 275. The
Referee‘s finding of fact supported by ample evidence in the record should not be
disturbed.
On the one hand, the Bar states that it has no objection to Petitioner’s
petition. At Final Hearing, the Bar presented no evidence to refute any of the
evidence offered by Petitioner that Petitioner lacks ill feeling or malice toward
those who were compelled to bring about the disciplinary proceeding. On the
other hand, the Bar attempted to re-try the same issue of malice and ill feeling,
which were previously brought up and considered by the referee in the original
proceedings. The purpose of proceeding for reinstatement is not to retry Petitioner
for misconduct, which brought about the suspension, but to determine whether
Petitioner has been sufficiently rehabilitated in conduct and in character. Florida
Bar in re Hurtenbach , 157 So.2d 348 (Fla. 1946).
The Referee considered and made specific finding of facts that Petitioner’s
testimony and that of the witnesses evidences a lack of malice or ill feelings. TR
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275-276. The evidence in the record is ample and supports the Referee’s finding
of fact and such finding should not be disturbed.
The Bar failed to object to the Petition and offered no witnesses to rebut the
Petition for Reinstatement. The Bar presented one rebuttal witness, Rana Holtz, an
attorney who represented the third party to whom the e-mails were sent, and who
testified that she does not recall Petitioner apologizing to her and to the third party
through her for sending the e-mails. The Referee rejected the testimony of the
Bar’s witness, stating “I have the impression that she [Petitioner] is sincere when
she says that she apologizes for the e-mails and regrets they were sent, when she
says that she understands they never should have been sent.” TR 274.
Additionally, the Referee correctly finds that this was an issue in the original
matter, which was considered and weighted in making findings of fact and
recommendations to the Supreme Court in regard to what the sanctions that should
be imposed upon Petitioner. TR 261, 275. Again, the Bar fails to offer proof that
the Referee’s finding of fact is clearly erroneous and not supported by the record.
The Referee’s finding of facts should not be disturbed.
E. Referee makes a finding of fact that Petitioner offers
corroborated personal assurances. The Referee explicitly finds Petitioner has satisfied the requirements of 3-
7.10(3)(E), Rules Regulating the Florida Bar, by clear and convincing evidence.
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The Referee weighted Petitioner’s and her witnesses’ testimonies to be honest and
credible and states that Petitioner has offered “personal assurance supported by
corroborating evidence, the desire and intention to conduct one's self in an
exemplary fashion in the future, … and the corroboration is in the form of these
letters and folks who took the time out of their lives to come down and testify on
behalf of Ms. Elliott.” TR 277. Having clearly stated a finding of facts, the
Referee’s conclusion should not be disturbed.
F. Restitution of funds does not apply. G. Referee finds that Petitioner shows positive actions
showing rehabilitation. The Referee made specific finding of facts that Petitioner has, by clear and
convincing evidence met the requirement of 3-7.10(3)(G) in taking positive actions
showing rehabilitation through her occupation, religion, or community or civic
services. The Referee explicitly found that “she has of course, had Mr. Pizarro
engaged for the trust fund issues. She's been going through the informal
counseling regarding anger issues through her church. She is very involved in her
community and her church, and she has been involved in a very positive way,
according to the evidence, in community and civic services and mentoring children
through the bible studies and otherwise.” TR 277. Based on the Referee’s specific
finding of facts, his ruling should not be disturbed.
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CONCLUSION
The Referee has made specific and unambiguous findings of fact that
Petitioner has satisfied, by clear and convincing evidence and supported by the
record, that Petitioner has demonstrated that she is fit to resume the practice of law.
The Referee, after hearing testimonies on behalf of Petitioner, weighted and
considered each testimony, including that of Petitioner’s, and after having
considered letters from attorneys and others in the community attesting to
Petitioner’s character, integrity, moral standard and professional ability, and being
therefore fully advised of the ample evidence in the record, made a finding of fact
that Petitioner has satisfied each required element of 3-7.10(3)(A)-(G), Rules
Regulating the Florida Bar. The Referee made detailed, clear, concise and
meticulous findings of fact that Petitioner is rehabilitated and is fit to resume the
practice of law. This Court has consistently held that a finding of fact of a Referee
will not be disturbed unless the opponent demonstrates that the finding of fact is
erroneous, illegal or unjustified. The ample evidence in the record support the
Referee’s findings of fact and recommendation for reinstatement. This Court
should approve the recommendation for reinstatement.
Respectfully submitted,
_______________________ Nadege Elliott, Esquire Petitioner
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and seven (7) copies of this brief
have been provided via regular US mail to The Honorable Thomas D. Hall, Clerk
of the Florida Supreme Court, at 500 South Duval Street, Tallahassee, FL 32399-
1927; a true and correct copy via regular US mail to Stephen C. Whalen, Assistant
Staff Counsel at the Florida Bar, at 5521 W. Spruce Street, Suite C-49, Tampa, FL
33607, a true and correct copy via regular US mail to John A. Boggs, Staff
Counsel for the Florida Bar at 651 E. Jefferson Street, Tallahassee, FL 32399-
2300, this 13th day of December, 2004.
_______________________ Nadege Elliott, Esq. Petitioner PO Box 150773 Cape Coral, FL 33915 (239) 573-3632 FBN: 155535
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CERTIFICATIONOF FONT SIZE AND STYLE CERTIFICATION OF VIRUS SCAN
The undersigned does hereby certify that this brief is submitted in 14 point
proportionally spaced Times New Roman font, and in accordance with the
Administrative Order No. AOSC04 has been submitted via e-mail to e-
[email protected] and has been found to be free of viruses by McAfee Antivirus for
Windows.
_______________________ Nadege Elliott, Esq. Petitioner PO Box 150773 Cape Coral, FL 33915 (239) 573-3632 (239) 573-1470 (F) FBN: 155535