IN THE SUPREME COURT OF FLORIDA · A real estate closing between Ronaldo Delibero & Graziela...

IN THE SUPREME COURT OF FLORIDA (Before a Referee)

THE FLORIDA BAR, Supreme Court Case No. SC09-477 Complainant, v. The Florida Bar File Nos. 2007-50,976(17E) MARILYN LESLIE MALOY, 2007-51,017(17E)

Respondent. /

REPORT OF REFEREE

I. SUMMARY OF PROCEEDINGS

The Florida Bar filed its formal complaint against respondent in this matter

on or about March 16, 2009. Thereafter, the undersigned was appointed to preside

as referee in these proceedings by order of the Chief Judge of the Fifteenth Judicial

Circuit. The parties have presented to me a Conditional Guilty Plea for Consent

Judgment, which has been approved by The Florida Bar Board of Governors’

designated reviewer. After due deliberation, I have determined to recommend that

respondent’s Conditional Guilty Plea for Consent Judgment be approved, for the

reasons set forth herein. The pleadings and all other papers filed in this cause,

which are forwarded to the Supreme Court of Florida with this report, constitute

the entire record.

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During the course of these proceedings, respondent was represented by

Albert L. Frevola, Jr. and The Florida Bar was represented by Alan Anthony

Pascal.

II. FINDINGS OF FACT:

I find that the following facts were alleged in the complaint and are admitted

by Respondent.

A. Jurisdictional Statement: Respondent is, and at all times mentioned

during this investigation was, a member of The Florida Bar, and subject to the

jurisdiction and Disciplinary Rules of the Supreme Court of Florida.

B. Narrative Summary

1. Respondent is a member of The Florida Bar subject to the jurisdiction

and disciplinary rules of the Supreme Court of Florida.

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2. Predicated upon two notices from Wachovia Bank that two separate

checks (in the amounts of $179,446.46 and $15,761.65, respectively) from

respondent’s trust account were returned due to insufficient funds, the bar initiated

an investigation and audit of respondent’s trust account.

3. After contacting respondent regarding the checks returned due to

insufficient funds, respondent self reported to The Florida Bar that Attorneys’ Title

Insurance Fund (hereinafter “The Fund”) brought suit against her for breach of her

agreement to act as a title insurance agent for The Fund.

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4. As an agent of The Fund, respondent was responsible for collecting

premiums payable to The Fund; maintaining a separate escrow/trust account with

sufficient monies to satisfy disbursements; and handling real estate closings in

which The Fund’s title insurance policies, commitments and closing protection

letters were issued.

5. The litigation resulted in respondent’s trust and operating accounts

being placed with a court appointed receiver.

6. The receiver also obtained respondent’s trust records as part of the

receivership.

7. Upon review of respondent’s trust account records, it was discovered

that respondent did not have monthly reconciliations of her trust account; she

failed to maintain monthly comparisons between totals of client ledgers and the

reconciled bank balance; and she failed to maintain a cash receipts or disbursement

journal as required by The Rules Regulating The Florida Bar.

8. At all times material to this complaint, respondent worked as an

attorney and closing agent for “Organized Title.”

COUNT I

9. Respondent contracted with Mr. Jerry Omofoman (hereafter

Omofoman) and Organized Title to perform certain services related to her real

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estate law practice, including handling of certain of respondent’s real estate

closings.

10. Despite having agreed to act as attorney and closing agent for clients,

respondent allowed Omofoman, a nonlawyer owner of Organized Title, and

Tamieka Funchess (hereafter Funchess), a paralegal, access to her practice so that

Omofoman and Funchess began to handle all aspects of certain closings, with no

supervision from or knowledge of the respondent.

11. Respondent further gave Omofoman (a nonlawyer and owner of

Organized Title) access to her trust account.

12. Respondent’s failed to supervise Omofoman and/or Funchess from on

or about April 1, 2005 through January 20, 2007, resulting in the misappropriation

of approximately $1,533,149.21 of client monies from respondent’s trust account.

13. In certain real estate transactions Omofoman and Funchess handled

purportedly on behalf of respondent’s practice, respondent failed to review any

documents or other information, failed to meet with the buyer or seller, and failed

to properly supervise Omofoman and Funchess to ensure these parties were not

acting without her knowledge or supervision.

COUNT II

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14. A real estate closing between Willis and Angela McGahee (sellers)

and Richard Clarke (buyer) was handled by Omofoman and Funchess purportedly

acting on behalf of respondent’s office on January 17, 2007.

15. Respondent never met with the buyer or seller in the transaction.

16. Further, respondent allowed Omofoman and Funchess to act without

her knowledge so that they were able to handle the closing without any supervision

by respondent.

17. As a result of her lack of involvement, Omofoman and Funchess were

able to issue an Attorneys Title Insurance Fund, Inc., Commitment purportedly on

her behalf by cutting and pasting her signature, thereby binding The Fund to the

transaction.

18. On January 17, 2007, respondent received a wire transfer in the

amount of $615,454.60 pertaining to the McGahee/Clarke transaction.

19. Respondent had an obligation to hold such funds in her trust account

and to use such funds for the purposes for which they were received.

20. Such funds were not used for the purposes for which they were

received.

21. Respondent failed to ensure that the previous mortgage on the home

was satisfied.

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22. In truth and in fact, Omofoman/Funchess misappropriated the closing

proceeds and The Fund was forced to pay $442,111.46 to satisfy the unpaid

mortgage loan.

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23. A real estate closing between Mario and Else Calderin (sellers) and

Trust Fund Investment, Inc., (buyer) was handled by Omofoman and Funchess,

purportedly on behalf of respondent’s office on January 8, 2007.

COUNT III




by respondent.

26. As a result of her lack of involvement, respondent allowed Omofoman

and Funchess to issue an Attorneys Title Insurance Fund, Inc., Commitment,

purportedly on her behalf thereby binding The Fund to the transaction.

27. Thereafter, no monies were ever placed into respondent’s trust

account pertaining to the Calderin/Trust Fund Investment transaction.

28. Respondent failed to ensure that the funds were received and that such

funds were used to satisfy the previous mortgage on the home.

29. Because respondent purportedly issued the title commitment, The

Fund was forced to pay $238,083.03 to satisfy the unpaid mortgage loan.

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30. A real estate closing between Landry and Lydie Jacob (sellers) and

Frantz and Rose Pervil (buyers) was handled by Omofoman and Funchess,

purportedly on behalf of respondent’s office on December 28, 2006.

COUNT IV




by respondent.


and Funchess to issue an Attorneys Title Insurance Fund, Inc., Commitment,


34. On December 28, 2006, respondent received two separate wire

transfers pertaining to the Jacob/Pervil transaction. Such wire transfers totaled

$466,164.20.




received.


was satisfied.

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mortgage loan.

39. A real estate closing between Yen Ho (seller) and Daphne Bromfield

(buyer) was handled by Omofoman and Funchess purportedly on behalf of

respondent’s office on January 3, 2007.

COUNT V



her knowledge so that they were able to handle the closing without any

supervision.


and Funchess to issue an Attorneys Title Insurance Fund, Inc., Commitment


43. On January 3, 2007, respondent received two separate wire transfers

pertaining to the Ho/Bromfield transaction. Such wire transfers totaled

$298,531.66.



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received.


was satisfied.



mortgage loan.

48. A real estate closing between Ronaldo Delibero & Graziela Martins

(sellers) and Christine Cobham (buyer) was handled by Omofoman and Funchess

purportedly on behalf of respondent’s office on December 27, 2006.

COUNT VI




by respondent.


and Funchess to issue an Attorneys Title Insurance Fund, Inc., Commitment


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52. On December 27, 2006, respondent received two separate wire

transfers pertaining to the Delibero & Martins/Cobham transaction. Such wire

transfers totaled $847,486.50.




received.


was satisfied.



mortgage loan.

III. RECOMMENDATION AS TO WHETHER RESPONDENT SHOULD BE FOUND GUILTY

A. By her failure to properly maintain her trust account, respondent

violated R. Regulating Fla. Bar 5-1.2(b)(5) [Minimum Trust Accounting Records.

The following are the minimum trust accounting records that shall be maintained:

A separate cash receipts and disbursements journal, including columns for receipts,

disbursements, transfers, and the account balance, and containing at least: (A) the

identification of the client or matter for which the funds were received, disbursed,

: My recommendation as to guilt is as follows:

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or transferred; (B) the date on which all trust funds were received, disbursed, or

transferred; (C) the check number for all disbursements; and (D) the reason for

which all trust funds were received, disbursed, or transferred.]; 5-1.2(b)(6) [The

following are the minimum trust accounting records that shall be maintained: A

separate file or ledger with an individual card or page for each client or matter,

showing all individual receipts, disbursements, or transfers and any unexpended

balance, and containing: (A) the identification of the client or matter for which

trust funds were received, disbursed, or transferred; (B) the date on which all trust

funds were received, disbursed, or transferred; (C) the check number for all

disbursements; and (D) the reason for which all trust funds were received,

disbursed, or transferred.]; 5-1.2(c)(1)(A) [The lawyer shall cause to be made

monthly reconciliations of all trust bank or savings and loan association accounts,

disclosing the balance per bank, deposits in transit, outstanding checks identified

by date and check number, and any other items necessary to reconcile the balance

per bank with the balance per the checkbook and the cash receipts and

disbursements journal.]; and 5-1.2(c)(1)(B) [A lawyer shall cause to be made

monthly a comparison between the total of the reconciled balances of all trust

accounts and the total of the trust ledger cards or pages, together with specific

descriptions of any differences between the 2 totals and reasons therefor.].

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B. Count I: By her failure to properly supervise Omofoman and/or

Funchess, respondent violated R. Regulating Fla. Bar 4-5.3(b) [With respect to a

nonlawyer employed or retained by or associated with a lawyer or an authorized

business entity as defined elsewhere in these Rules Regulating The Florida Bar:

(1) a partner, and a lawyer who individually or together with other lawyers

possesses comparable managerial authority in a law firm, shall make reasonable

efforts to ensure that the firm has in effect measures giving reasonable assurance

that the person’s conduct is compatible with the professional obligations of the

lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer shall

make reasonable efforts to ensure that the person’s conduct is compatible with the

professional obligations of the lawyer; and (3) a lawyer shall be responsible for

conduct of such a person that would be a violation of the Rules of Professional

Conduct if engaged in by a lawyer if: (A) the lawyer orders or, with the knowledge

of the specific conduct, ratifies the conduct involved; or (B) the lawyer is a partner

or has comparable managerial authority in the law firm in which the person is

employed, or has direct supervisory authority over the person, and knows of the

conduct at a time when its consequences can be avoided or mitigated but fails to

take reasonable remedial action.]; and 4-5.3(c) [Although paralegals or legal

assistants may perform the duties delegated to them by the lawyer without the

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presence or active involvement of the lawyer, the lawyer shall review and be

responsible for the work product of the paralegals or legal assistants.].

C. Count II: By the conduct set forth above, respondent violated R.

Regulating Fla. Bar 4-5.3(b) [With respect to a nonlawyer employed or retained by

or associated with a lawyer or an authorized business entity as defined elsewhere in

these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who

individually or together with other lawyers possesses comparable managerial

authority in a law firm, shall make reasonable efforts to ensure that the firm has in

effect measures giving reasonable assurance that the person’s conduct is

compatible with the professional obligations of the lawyer; (2) a lawyer having

direct supervisory authority over the nonlawyer shall make reasonable efforts to

ensure that the person’s conduct is compatible with the professional obligations of

the lawyer; and (3) a lawyer shall be responsible for conduct of such a person that

would be a violation of the Rules of Professional Conduct if engaged in by a

lawyer if: (A) the lawyer orders or, with the knowledge of the specific conduct,

ratifies the conduct involved; or (B) the lawyer is a partner or has comparable

managerial authority in the law firm in which the person is employed, or has direct

supervisory authority over the person, and knows of the conduct at a time when its

consequences can be avoided or mitigated but fails to take reasonable remedial

action.]; 4-5.3(c) [Although paralegals or legal assistants may perform the duties

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delegated to them by the lawyer without the presence or active involvement of the

lawyer, the lawyer shall review and be responsible for the work product of the

paralegals or legal assistants.]; 5-1.1(a)(1) [A lawyer shall hold in trust, separate

from the lawyer’s own property, funds and property of clients or third persons that

are in a lawyer’s possession in connection with a representation. All funds,

including advances for fees, costs, and expenses, shall be kept in a separate bank or

savings and loan association account maintained in the state where the lawyer’s

office is situated or elsewhere with the consent of the client or third person and

clearly labeled and designated as a trust account. A lawyer may maintain funds

belonging to the lawyer in the trust account in an amount no more than is

reasonably sufficient to pay bank charges related to the trust account.]; and

5-1.1(b) [Money or other property entrusted to an attorney for a specific purpose,

including advances for fees, costs, and expenses, is held in trust and must be

applied only to that purpose. Money and other property of clients coming into the

hands of an attorney are not subject to counterclaim or setoff for attorney’s fees,

and a refusal to account for and deliver over such property upon demand shall be

deemed a conversion.].

D. Count III: By the conduct set forth above, respondent violated R.



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E. Count IV: By the conduct set forth above, respondent violated R.








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F. Count V: By the conduct set forth above, respondent violated R.













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G. Count VI: By the conduct set forth above, respondent violated R.


















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IV.

I recommend that respondent be suspended from the practice of law for a

period of 90 days with automatic reinstatement at the end of the period of

RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED:

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suspension as provided in R. Reg. Fla. Bar 3-5.1(e). Additionally, respondent shall

be placed on 2-year probation and agrees to payment of The Florida Bar’s costs.

The conditions of respondent’s 2-year probation are as follows:

A. Within 30 days of this consent judgment being accepted by the

Supreme Court of Florida, Respondent will schedule an office procedures

and record-keeping analysis by and under the direction of the Law Office

Management Assistance Service (hereinafter referred to as LOMAS) of The

Florida Bar. Respondent shall cooperate with LOMAS in the conduct

thereof. Respondent shall fully comply with and implement, at respondent’s

sole cost and expense, all recommendations made by LOMAS, which

recommendations shall be in accordance with the Office Procedures and

Record Keeping Guidelines of LOMAS. The LOMAS analysis shall consist

of, at a minimum, an initial review within 60 days of the court order

accepting this plea and a final review prior to termination of the probation,

confirming compliance with, and implementation of, the recommendations

of LOMAS. LOMAS may require such additional interviews as it may, in its

sole discretion, deem necessary or advisable. Respondent shall pay all fees

and expenses of LOMAS incurred or required in connection with the

conduct of its analysis. LOMAS shall provide the Lawyer Regulation

Department of The Florida Bar with status reports as to ordered analysis.

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V. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD:

I considered the following personal history and prior disciplinary record of

respondent, to wit:

A. Personal History of Respondent:

Age: 39

Date Admitted to the Bar: June 21, 2005

B. Aggravating Factors: 9.22

(c) pattern of misconduct;

(d) multiple offenses.

C. Mitigating Factors: 9.32

(a) lack of a prior disciplinary record;

(b) there is no allegation in the complaint, and therefore no claim and

no evidence of dishonest or selfish motive;

(c) personal health problems (Respondent and son both had medical

illnesses diagnosed during the time of the misconduct.);

(d)timely, good faith effort to make restitution or to rectify

consequences of misconduct (It is not disputed that Respondent

promptly contacted her malpractice carrier and self reported to the

Florida Bar.);

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(e) full and free disclosure to disciplinary board or cooperative

attitude toward proceedings (Respondent self reported her difficulties

and also has worked with Attorney’s Title to resolve claims.);

(g) remorse.

VI. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED: I find that The Florida Bar has incurred reasonable costs in the matter and

that same should be assessed against the respondent, as follows:

A. Grievance Committee Level Costs: 1. Court Reporter Costs+ $ -0- 2. Bar Counsel Travel Costs $ -0-

B. Referee Level Costs:

1. Court Reporter Costs $ -0- 2. Bar Counsel Travel Costs $ -0-

C. Administrative Fee $ 1,250.00

D. Miscellaneous Costs: 1. Investigator Costs $ -0- 2. Witness Fees $ -0- 3. Copy Costs $ 7.80 53 pages. x .15 4. Telephone Charges $ -0-

5. Auditor costs $472.50 TOTAL ITEMIZED COSTS: $1,730.30

Dated this __14th___ day of October, 2009.

_______/s/___________________________ EDWARD H. FINE, Referee

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-1927, and that copies were mailed by regular U.S. mail to the following: STAFF COUNSEL, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300; and ALAN ANTHONY PASCAL, Bar Counsel, The Florida Bar, Lake Shore Plaza II, 1300 Concord Terrace, Suite 130, Sunrise, Florida 33323; and ALBERT L. FREVOLA, JR., Counsel for respondent, Adorno & Yoss, 350 E. Las Olas Boulevard, Suite 1700, Fort Lauderdale, Florida 33301 on this ___14th____ day of October, 2009. __________/s/______________________ EDWARD H. FINE, REFEREE

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