IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court Case No. SC09-922 Petitioner/Appellant

Cross-Appellee, v. PETER MARCELLUS CAPUA, The Florida Bar File No. 2009-71,123 (11H-0SC) Respondent/Appellee

Cross-Petitioner. /

PETER MARCELLUS CAPUA’S ANSWER BRIEF AND INITIAL BRIEF ON CROSS-PETITION

Peter Marcellus Capua Biscayne Building 19 West Flagler Street, Suite 301 Miami, Florida 33130 (305) 316-8807 (Tel.)

(305) 373-3307 (Fax.) Email: carbon374@gmail.com

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TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS ............................................................................... i TABLE OF CITATONS ................................................................................ iii PREFACE ...................................................................................................... vii STATEMENT OF THE CASE AND FACTS ............................................... 1 SUMMARY OF THE ARGUMENT ............................................................. 13 STANDARD OF REVIEW ........................................................................... 18 ARGUMENT ................................................................................................. 19 I. THERE IS NO COMPETENT AND SUBSTANTIAL EVIDENCE IN THE

RECORD TO SUPPORT THE ULTIMATE FINDING OF THE TRIAL COURT THAT RESPONDENT CONTEMPTUOUSLY DISOBEYED THIS COURT’S ORDER OR AUTHORITY.

II. THERE IS NO COMPETENT AND SUBSTANTIAL EVIDENCE

EXHIBITING THAT RESPONDENT ENGAGED IN A PATTERNOF MISCONDUCT OR HAS ENGAGED IN MULTIPLE OFFENSES TO BE CONSIDERED AGGRAVATING FACTORS IN THE IMPOSITION OF DISCIPLINE.

III. THE TRIAL COURT ERRED BY NOT HAVING CONSIDERED THE

ADDITIONAL MITIGATING FACTORS OF INTERIM REHABILITATION AND REMORSE PRESENT IN THESE PROCEEDINGS.

IV. THE REFEREE’S RECOMMENDATION OF A PUBLIC REPRIMAND

DOES COMPORT WITH EXISTING CASE LAW OR THE FLORIDA

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STANDARDS FOR IMPOSING LAWYER SANCTIONS IF THE UNDERLYING FINDINGS OF THE TRIAL COURT ARE UPHELD.

CONCLUSION .............................................................................................. 41 CERTIFICATE OF SERVICE....................................................................... 42 CERTIFICATE OF COMPLIANCE ............................................................. 43

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TABLE OF CITATIONS PAGE

CASES Herold v. Computer Components International, Inc.

252 So.2d 576 (Fla. 4th DCA 1971) ........................................................ 27 Hunnefeld v. Futch

557 So.2d 916 (Fla. 4th DCA 1990) ........................................................ 27,32,33 Paul v. Johnson

604 So.2d 883 (Fla. 5th DCA 1992) ........................................................ 27 Romano v. Russo

620 So.2d 795 (Fla. 3d DCA 1993) ........................................................ 27 Rowe v. Wille

415 So.2d 79, 81 (Fla. 4th DCA 1982) .................................................... 33 Scrimshaw v. State

592 So.2d 753 (Fla. 3d DCA 1992) ........................................................ 27,32 Swindle v. Reid

242 So.2d 751 (Fla. 4th DCA 1970) ........................................................ 27 The Florida Bar v. Anne Bitterman

33 So.3d 686 (Fla. 2010) ........................................................................ 31 The Florida. Bar v. Bauman

558 So.2d 994 (Fla. 1990) ...................................................................... 34, 35, 38, 39, 45 The Florida. Bar v. Breed

378 So.2d 783 (Fla. 1979) ...................................................................... 30 The Florida Bar v. Brigman

322 So.2d 556 (Fla. 1975) ...................................................................... 30 The Florida Bar v. Elster

770 So.2d 1184 (Fla. 2000) .................................................................... 26

iv

The Florida Bar v. F. Lee Bailey

803 So.2d 683 (Fla. 2001) ...................................................................... 40 The Florida Bar v. Forrester

916 So.2d 647 (Fla. 2005) ...................................................................... 33 The Florida Bar v. Greene

557 So.2d 35 (Fla. 1990) ........................................................................ 31 The Florida Bar v. Greene

515 So.2d 1280 (Fla. 1987) .................................................................... 31 The Florida Bar v. Greene

485 So.2d 1279 (Fla. 1986) .................................................................... 31 The Florida Bar v. Greene

463 So.2d 213 (Fla. 1985) ...................................................................... 31 The Florida Bar v. Greene

235 So.2d 7 (Fla. 1970) .......................................................................... 31 The Florida Bar v. Greene

589 So.2d 281 (Fla. 1991) ...................................................................... 30 The Florida Bar v. Jones

571 So.2d 426 (Fla. 1990) ...................................................................... 31 The Florida Bar v. Jones

571 So.2d 426 (Fla. 1990) ...................................................................... 30 The Florida Bar v. Keehley

190 So.2d 173 (Fla. 1966) ...................................................................... 19, 45, 47, 48

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The Florida Bar v. Rood 678 So.2d 1277 (Fla. 1996) .................................................................... 29

The Florida Bar v. Simring

612 So.2d 561 (Fla. 1993) ...................................................................... 29, 30 The Florida Bar v. Tannenbum

267 So.2d 824 (Fla.1972) ....................................................................... 28 The Florida Bar v. Temmer

753 So.2d 555 (Fla. 1999) ...................................................................... 45 The Florida Bar v. Ticktin

14 So.3d 928 (Fla. 2009) ........................................................................ 45 The Florida Bar v. Tipler

8 So.3d 1109 (Fla. 2009) ........................................................................ 41 The Florida Bar v. Springer

873 So.2d 317 (Fla. 2004) ...................................................................... 40 The Florida Bar v. Vining

761 So.2d 1044, 1048 (Fla. 2000) .......................................................... 38, 41 The Florida Bar v. Weisser

721 So.2d 1142 (Fla.1998) ..................................................................... 45, 46, 47 Thomson v. State

398 So.2d 514 (Fla. 2d DCA 1981) ........................................................ 27 Rules Regulating The Florida Bar Rule 1-3.6 ....................................................................................................... 14 Rule 3-5.1(g) .................................................................................................. 14 Rule 3-6.1(d) ........................................................................................... 12, 15, 21 Rule 3-6.1(e) ......................................................................................... 9, 10, 13, 21

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Florida Standards for imposing Lawyer Sanctions 8.1 ........................................................................................................ 19, 47, 48 8.3(a) .................................................................................................... 19, 48 9.22 ...................................................................................................... 23, 37 9.32 ...................................................................................................... 42, 43, 48

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PREFACE

For the purpose of this Answer Brief and Initial Brief on Cross-Petition,

Peter Marcellus Capua will be referred to as “Respondent”. The Florida Bar will

be referred to as “The Florida Bar” or the “Bar”. The referee may be referred to as

the “referee”, or the “trial court”. Additionally, the rules regulating The Florida

Bar may be referred to as the “Rules” and the Florida Standards for Imposing

Lawyer Sanctions may be referred to as the “Standards”.

References to the Amended Report of Referee will be by the symbol “ROR”

followed by the corresponding page number(s). References to the transcript of the

Final Hearing held on March 15, 2010 will be by the symbol “T-I” followed by the

corresponding page number(s) and line number(s). References to the transcript of

the telephonic hearing held on March 18, 2010 will be by the symbol “T-II”

followed by the corresponding page number(s) and line number(s).

Reference to The Florida Bar exhibits will be referred to by “TFB Exhibit”

followed by the exhibit number. References to the Respondent’s exhibits will be

by “Respondent Exhibit” followed by the exhibit number.

Reference to the Index Of Record will be referred to as “Index” followed by

the Tab number.

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STATEMENT OF THE CASE AND FACTS

1. The Florida Bar filed an Amended Petition for Contempt and Order

To Show Cause (hereafter “Amended Petition”) on June 3, 2009. Index No. 1.

The Florida Bar within the Amended Petition sought a contempt order because of

Respondent having executed the subject subpoena (Index No.3) and for not having

complied with Rule 3-6.1(e). (Id., p.2, 3) On July 3, 2009, Respondent filed his

response to The Florida Bar’s Amended Petition for Contempt and Order to Show

Cause which, in part, explained the facts and circumstances leading up to and

relating to the execution of the subpoena, admitted that the subpoena referred to

the undersigned as an attorney, apologized for not having submitted the sworn

statement, and recognized that he was negligent by not having deleted the language

referring to himself as an attorney. Index No. 3.

2. Within Respondent’s Corrected Verified Motion for Final Summary

Judgment and Notice of Filing (hereafter “Motion for Summary Judgment”),

Respondent again set out the facts and circumstances leading up to and relating to

the execution of the subpoena at issue and Rule 3-6.1(e). Index No. 14.

3. Once again, and within Motion for Summary Judgment, the

Respondent acknowledged that he should have been more careful in reviewing the

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subpoena, that the failure to delete the reference to the undersigned as an attorney

was negligent, explained that he did change the subpoena by deleting certain

references to his being an attorney on the second page of the subpoena (i.e., law

firm, bar number, esquire, etc) (T-I, p.8, L.17-25; p.9-L.1-6) and apologized for

his failure to submit the Rule 3-6.1(e) quarterly affidavits. Attached as Exhibit

“A” to the Motion for Summary Judgment is a fax cover letter dated June 3, 2009

enclosing a Rule 3-6.1 affidavit and apologizing for having overlooked this

requirement. More particularly on June 3, 2009, Respondent wrote, in pertinent

part, to Jennifer Falcone-Moore, Esq., counsel for The Florida Bar, “Enclosed

please find an affidavit in compliance with Rule 3-6.1. I apologize for having

overlooked this and have diaried my calendar in three months in order to avoid

this issue in the future….”1

4. The trial court knew that the Respondent acknowledged his mistake in

signing the subpoena. T-I, Page 11, L.2-3. Respondent testified that “I goofed on

this particular issue on the subpoena. It was a mistake and there is nothing to

indicate that it was anything other than an oversight.” T-I, Page 17, L.10-13.

Respondent “….admitted that it was an oversight.” T-I, Page 15, L.3-4.

Respondent recognized this throughout the course of these proceedings. T-I,

1 The Motion for Summary Judgment detailed other relevant facts within the body of the motion and within the exhibits attached thereto. However, these facts and more are covered by the trial transcripts and evidence admitted into evidence which is summarized below.

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Page 17, L.14-19. Id. Respondent again acknowledged that he made a mistake.

T-I, Page 22, L.6-7. The Florida Bar presented no live testimony or transcribed

testimony in these proceedings. Relating to the subpoena issue, The Florida Bar

put into evidence the subpoena at issue as Exhibit “1”, and the affidavit of

Detective Laura Migala as Exhibit “2” - also attached as Exhibit “D” to The

Florida Bar’s Amended Petition for Contempt In Order To Show Cause. Index

No. 1.

5. The affidavit of Laura Migala states, at the beginning of the second

page, that, after receiving the subpoena on May 11, 2009, “On May 11, 2009…I

started to question how someone that had been disbarred could be signing a

subpoena. I was also a bit concerned that I was going to be badgered again in

court, and this time Mr. Capua may be the one doing the badgering. For these

reasons, I contacted The Florida Bar and found out that Mr. Capua is not

authorized to be doing anything that pertains to practicing law.”

6. Notwithstanding The Florida Bar’s clear message to Detective Migala

on May 11, 2009, explaining to her that Respondent was not authorized to issue

the subpoena, she appeared in court on May 14, 2009. Id.2

7. The Florida Bar offered into evidence as Exhibit “3”, the affidavit of

Adam Sexton, and finally a letter to Respondent’s former counsel, Richard Baron,

2 What transpired at court will be discussed infra within the Statement of the Case and Facts.

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Esq., identified as Exhibit “4”. T-I, Page 52. At this point, The Florida Bar

rested.

8. After close of The Florida Bar’s case, T-I, Page 31, L.8-14,

Respondent moved for a directed verdict (Id. L.16-22) which was denied. T-I,

Page 40, L.12-14.

9. Jorge A. Calil, Esq. testified on behalf of Respondent. T-I, Page 54,

L.17 – Page 69, L.22. More specifically, he testified that Respondent started

doing work for him in January of 2008, T-I, Page 55, L.4-5, at which time he and

Respondent contacted The Florida Bar with regard to requirements that they had

to follow, Id. L.5-9. Referring to Respondent’s Exhibit No. 1, the letter authored

by Mr. Calil dated January 8, 2008, Mr. Calil testified that Respondent has

continued to abide by the terms of employment as reflected in the letter. The

reference section or caption of this letter reads, Re: Notice of Employment

pursuant to Rule 3-6.1(d). T-I, Page 56. Mr. Calil also authored the letter of June

1, 2009, Respondent’s Exhibit No. 2. Mr. Calil testified that everyone knows that

Respondent is employed by him. T-I, Page 59, L.4-6. The judges know that

Respondent is working for Mr. Calil, the adjusters are aware of this, and The

Florida Bar knows. T-I, Page 60, L.1-7.

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10. Both Mr. Calil and Respondent have since implemented an office

procedure to assure that they are reminded quarterly with regard to their

compliance with Rule 3-6.1(e). T-I, Page 61, L.2-18.

11. Since January of 2008, Respondent and Mr. Calil have taken

Respondent’s sign off of the door, Mr. Calil is not aware of any stationary or

business cards reflecting that Respondent is a licensed attorney, he testified that

there has been no direct contact with clients, he has supervised all work, that

Respondent does not answer phones, there is nothing on Respondent’s walls in his

office, etc. T-I, Page 61, L.19 – Page 63, L.22.

12. Mr. Calil further testified that he remembers Respondent telling him

that he made a mistake sending out the subpoena. T-I, Page 69, L.4-6.

13. Respondent complied with Rule 3-6.1(e) on or about June 3, 2009.

Respondents Exhibits “3A” and “3B”. T-I, Page 73, L.9-11. Approximately

three (3) months later and on or about August 25, 2009, Respondent again

complied with Rule 3-6.1(e). Respondent Exhibits “4A” and “4B”. T-I, Page 73,

L.19-23. Respondent again complied with Rule 3-6.1(e) on or about November

24, 2009. Respondent Exhibits “5A” and “5B”. T-I, Page 74, L.1-3. Finally, at

the time of the hearing, Respondent had most recently complied with Rule 3-

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6.1(e) on February 25, 2010. Respondent Exhibits “6A” and “6B”, T-I, Page 74,

L.6-7.3

14. On December 24, 2007, Respondent complied with Rule 3-5.1(g) by

virtue of having submitted the required affidavit. Respondent’s Exhibit “7”, T-I,

Page 76, L.2-4. Respondent Exhibits “8A” and “8B” reflect compliance with

Rule 1-3.6. T-I, Page 78, L.8-9. Respondent Exhibits “9A”, “9B” and “9C”

demonstrate further compliance with Rule 3-5.1(g). T-I, Page 79, L.5-7.

15. Respondent Exhibit “10”, a letter to Jennifer Falcone-Moore, Esq.

dated December 23, 2008 from Respondent, responds to the letter of The Florida

Bar to Richard Baron, Esq. dated November 21, 2008. TFB Exhibit “4”.

Respondent Exhibit “11A” is a letter to Jennifer Falcone-Moore, Esq. dated June

17, 2009 requesting an opinion from The Florida Bar with regard to certain

questions the Respondent had, and Respondent Exhibit “11B” is The Florida

Bar’s response dated July 2, 2009 to Exhibit “11A”.

16. Respondent called himself as a witness and commenced testifying. T-

I, Page 82, L.20.

17. Referring to Respondent Exhibit 10, the handwritten letter of

Respondent dated December 23, 2008 addressed to bar counsel, Respondent

reviewed his file and was under the impression that he complied with Rule 3-6.1, 3 Respondent also complied with 3-6.1(e) in May of 2010 and in a few days is scheduled to file another 3-6.1(e) affidavit.

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by virtue of having reviewed the letter of January 8, 2008 generated by Mr. Calil,

Respondent Exhibit 1 (“Notice of Employment pursuant to Rule 3-6.1(d)”),

Respondent was under the impression The Florida Bar was referring to the

requirement satisfied by what was written and divulged in this letter . T-I, Page

86, L.14-22. For this reason, and this reason only, Respondent did not submit the

affidavit. T-I, Page 86, L.23-25; Page 87, L.1.

18. Respondent was under the impression that the January 8, 2008 letter

was sufficient and was not aware that there was a separate quarterly affidavit

required of him. T-I, Page 87, L.17-22.

19. In response to TFB Exhibit “4”, Respondent addressed Point I with

regard to the financial affidavit, he addressed Point II with regard to the costs, and

with regard to the Rule 3-6.1 requirement, Point III, he addressed that by stating

“I already completed the affidavit and forwarded it to your office”. Respondent

Exhibit “10”.

20. Respondent testified that although he did not read Rule 3-6.1 again, he

was under the impression that he complied with that requirement by virtue of

having reviewed Respondent Exhibit “1” – the Rule 3-6.1 Notice of Employment

letter. There was never any reply to the December 23, 2008 letter by The Florida

Bar. T-I, Page 91, L.18-25; Page 92, L.1-4. Respondent testified that it would

not have been unreasonable for The Florida Bar to have called him and state

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“…you responded to 99% of the November 21, 2008 letter, you forgot to do this.”

T-I, Page 91, L.18-23, or “…you responded to everything in the letter. There is

one more thing.” T-I, Page 93, L.18-21.4

21. With regard to the subpoena, there was an attempt by respondent to

modify it-consistent with his status with The Florida Bar. The subpoena was a

form on Respondent’s computer, the word “Esquire” was deleted from the

subpoena, the bar number was deleted from the subpoena, and the former name of

the law firm, Lorenzo & Capua, was also deleted from the subpoena. Respondent

signed the subpoena and gave it to the process server to serve right away, T-I,

Page 97, L.13-23, in view of the hearing that was to be held in three (3) days.

22. Respondent has filed hundreds of documents, pro se, in front of Judge

Bagley, in front of Judge Sayfie, in front of Judge Newman, and in front of Judge

Areces. Respondent has also filed many documents with regard to various

attorney fee liens. T-I, Page 99-100. Respondent testified that he has made every

effort to go through all documents to excise all references to his being referred to

as an “attorney” or “undersigned counsel” and that with regard to this subpoena at

issue, it was an isolated event and a mistake. T-I, Page 98, L.22 – Page 101,

L.14.

4 Fla. R. Civ. P. 1.380(a)(3) requires litigants to include a certification that the movant, in good faith, ..attempted…to secure ..information or material without court action. Before seeking such severe sanctions, The Florida Bar should have acted consistently with the mandates of this rule. This rule recognizes the requirement of extending professional courtesies-not only to lawyers but also parties in general.

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23. Bar counsel, in her closing argument made numerous allegations

unsupported by the record. For example, she states “The correspondence he has

introduced into evidence today is filled with chance after chance after chance.

They told him over and over again, you missed things. You missed things. You

missed things.” T-I, Page 103, P.5-10. Bar counsel further states that “He was

going to sit back and wait for somebody to tell him, oh, you’ve got to do

something else.” T-I, Page 103, P.19-22. Again, argument unsupported by the

record.

24. At the same time the trial court acknowledges that the issuance of the

subpoena may have been an oversight on the part of the Respondent. The trial

court states that “whether it was an oversight or not, you did intentionally identify

yourself in that subpoena as an attorney.” Respondent responded that “I

unintentionally identified myself.” T-I, Page 22, L.16-24. The court admitted

that the actual act of signing the subpoena was not an “overt, grossly, offensive

act” or not an inflammatory act. T-I, Page 34, L.10-13. Respondent brought out

to the court that her consideration of other contempt petitions that were filed by

The Florida Bar were dismissed and should not be considered by the court. The

court said “See ‘?’ That’s my problem. I do see a history. Every time I turned

around, I was getting a new petition on my desk for contempt…” Page 106, L.19-

23. The court stated “You essentially carried yourself out to be an attorney in

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here.” T-I, Page 109, L.23-24. The court then states, “Maybe it wasn’t your

intent to do so, but…” T-I, Page 110, L.25. The court further stated “I don’t

disagree that it was not your intent to be disrespect[ful].” T-I, Page 117, L.10-11.

The court further stated “I don’t disagree with you that it was an oversight; but to

me, we are talking about negligence now…” T-I Page 117, L.21-25. The court

succinctly characterized Respondent’s conduct as negligent. More specifically,

“You were negligent.” T-I, Page 118, L.2.5

25. The parties reconvened on March 18, 2010 at approximately 8:30 a.m.

in chambers of the lower court. The trial court stated that her findings were

“…you know, gross negligence.” T-II, Page 9, L.17-18. The trial court then

Respondent admitted that he was

negligent. T-I, Page 118, L.3-4. When the improperly issued subpoena was

brought to the attention of Judge Newman, Respondent told Judge Newman “I am

sorry.” The subpoena was quashed, and Detective Migala was discharged. T-I,

Page 119, L.12-18. The court then states that Respondent intentionally issued the

subpoena. T-I, Page 126, L.12-13. The trial court then states that the issuance of

the subpoena was “gross negligence”. However, the trial court does not dispute

that Respondent issued the subpoena as “an oversight”. T-I, Page 128, L.5-7.

5 Respondent has admitted from the very beginning and since May 14, 2009, that he was negligent in this instance. Respondent certainly signed the subpoena (he intended to sign it) but was negligent in not deleting the reference to attorney on Page 1 of the subpoena.

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adjusted her findings to that of “gross negligence arising to the level of presuming

intent.” T-II, Page 11, L.2-5.

26. The trial court was of the firm opinion that this case fits into Rule

8.3(a). T-II, Page 12, L.9-11. The trial court was of the studied opinion that what

Respondent did was negligent as opposed to intentionally trying to hold himself

out as a lawyer. She states “But, I don’t see anything to refute, and I believe that

what he did was negligent; a negligent act as opposed to intentionally trying to

hold himself out as a lawyer.” She was also taking into account the fact that

Respondent was representing himself pro se in that matter. T-II, Page 13, L.17-

21.

27. The trial court once again felt that Respondent’s case, most clearly in

her mind, fits into a Rule 8.3(a) situation. She stated “Ms. Moore, at this point,

based on Rule 8.3(a) and based on Neckman, to the extent that I know that I

understand the law has been changed, but reading Rule 8.3(a) in connection with

Neckman, reading Rule 8.3(a) in conjunction with Rule 8.1, and I do think that

this case, most clearly in my mind, fits into a Rule 8.3(a) situation. T-II, Page 17,

L.16-21.

28. The trial court, incredibly, in the ROR came to the conclusion that

Respondent was grossly negligent sufficient to “infer an intentional violation of

this court’s Order of Disbarment”. Finally, and without explanation, the trial

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court found the aggravating factor of “a pattern of misconduct” and that of

“multiple offenses”. The report did not include as mitigating factors; “interim

rehabilitation” and “remorse”.

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SUMMARY OF THE ARGUMENT

29. The Florida Bar within the Amended Petition sought a contempt order

because of Respondent having executed the subject subpoena and for not having

complied with Rule 3-6.1(e). Respondent admitted that the subpoena referred to

the undersigned as an attorney, apologized for not having submitted the sworn

statement, and recognized that he was negligent by not having deleted the language

referring to himself as an attorney.

30. Referring to Respondent Exhibit 10, the handwritten letter of

Respondent dated December 23, 2008 addressed to bar counsel, Respondent

reviewed his file and was under the impression that he complied with Rule 3-6.1,

by virtue of having reviewed the letter of January 8, 2008 generated by Mr. Calil,

Respondent’s Exhibit 1 (“Notice of Employment pursuant to Rule 3-6.1(d)”),

which is what Respondent thought The Florida Bar was referring to. For this

reason, and this reason only, Respondent did not submit the affidavit.

31. Respondent was under the impression that the January 8, 2008 letter

was sufficient and was not aware that there was a separate quarterly affidavit

required of him.

32. Contempt is “A deliberate and contumacious disregard of the court’s

authority, or bad faith, willful disregard or gross indifference to an order of the

court, or conduct which evinces deliberate callousness.

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33. The gravamen of the Amended Petition of The Florida Bar is that

Respondent was practicing law because he was representing himself and

inadvertently referred to himself as an attorney in a subpoena he issued while

representing himself in a court matter before Judge Edward Newman.

34. There is no question that Respondent signed a subpoena referring to

himself as an attorney. Respondent intended to sign the subpoena as his signature

appears on the second page of it. Respondent further intended to secure the

appearance of Detective Migala – who did appear although advised by The Florida

Bar three (3) days beforehand, on May 11, 2009, that Respondent had no authority

to sign the subpoena.

35. However, there is no record evidence that Respondent intended to

hold himself out as an attorney licensed to practice law, and by virtue of that

representation, intended to secure Detective Migala’s appearance. The record only

suggests, and the trial court agreed, that the failure to excise “attorney(s)” from

Page One (1) of the subpoena was an “oversight”, a “mistake”, and “negligent”.

Furthermore the trial court found that Respondent did not intend to be

“disrespectful”. The oversight was highlighted by the uncontroverted fact that on

Page 2 of the subpoena, Respondent deleted the word “Esquire”, deleted his bar

number, and deleted the name of his former firms – which always accompanied his

signature during the twenty-one (21) years he was a solo-practitioner.

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36. If the matter complained of as constituting contempt, when fairly

interpreted, does not have a reasonable tendency to degrade or to embarrass or

hinder….it is not a criminal contempt….when an intent to offend is denied under

oath, there must be proof that the defendant intentionally disobeyed the court.

37. Respondent has NEVER attempted to justify his actions as he has

always recognized the mistakes. There is no competent and substantial evidence to

infer or suggest that Respondent intentionally disobeyed this court, acted willfully,

contumaciously or with gross indifference.

38. Significantly, the Bar presented no testimony, direct or circumstantial,

controverting Respondent’s denial of intent and the trial court made no indication

that she ever rejected Respondent’s sincerity or veracity.

39. The Florida Bar’s assertion that the act of holding oneself out an as an

attorney in good standing … is sufficient in and of itself to give rise to a finding of

contempt is simply not true.

40. The ROR reflects that the judge considered the aggravating factor of

“a pattern of misconduct” pursuant to Standard 9.22(c). Assuming the ROR is

interpreted to mean that the trial court found a pattern of misconduct, and multiple

offenses, this finding was error.

41. The record in the case at bar clearly reflects that the execution of the

subpoena at issue was an isolated event – taking into consideration the numerous

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documents that Respondent has filed on his own behalf in certain legal matters. As

soon as it was brought to his attention on May 14, 2009 – three days after the

issuance of the subpoena – that the subpoena was improperly issued, etc., he

agreed to having the subpoena quashed. Respondent has reviewed many of the

opinions of this court with respect to those instances when a Respondent has been

found guilty of engaging in a pattern of misconduct. All cases that Respondent has

reviewed have factual scenarios much more egregious than the facts in the case at

bar and, in fact, involve multiple instances of misconduct equating to a pattern.

The ROR herein makes no such findings and the record contains no such facts.

42. Respondent has never been dishonest in these proceedings, and he

admitted that the subpoena was issued incorrectly immediately when it was

brought to his attention on May 14, 2009. Respondent has acknowledged that he

made the mistake by not excising the reference to his being an attorney on Page 1

of the subpoena. This evidence is uncontroverted. Furthermore, Respondent

acknowledged his failure to submit the 3-6.1 quarterly reports, apologized, and has

since complied uninterruptedly.

43. With regard to the trial court’s failure to consider the mitigating

factors of interim rehabilitation, Mr. Calil testified as to the Respondent’s conduct

during the past several years while working under his direction within his law

office. There have been no instances complained of by Mr. Calil relating to non-

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compliance with any of The Bar rules that were reviewed together by both Mr.

Calil and Respondent.

44. This record demonstrates not only remorse, but also

acknowledgement of mistakes, apologies to all, and a lesson learned- to be more

careful. Although Respondent has been compelled to defend himself and his

personal convictions that he has never acted contemptuously, nothing should be

interpreted to mean that he has not been or is not remorseful for not only the issues

herein, but also for the initial mess that he caused to all - leading up to his

emergency suspension in January of 2008.

45. Although the referee did not cite existing case-law in the ROR to

support her recommendation herein, it is clear that, during the hearing of March

18, 2010 (“T-II”) she considered the argument of Respondent, considered the

argument of The Florida Bar, and considered the cases presented by Respondent.

46. In view of the fact that the record is replete with evidence that

Respondent negligently violated the terms of a prior disciplinary order, public

reprimand is warranted by the misconduct exhibited. In furtherance of the

appropriateness of the reprimand, there were a number of substantive mitigating

factors the court considered in arriving at the discipline imposed.

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STANDARD OF REVIEW

To successfully challenge a referee’s findings before this court, a respondent

must demonstrate that there is no evidence in the record to support the referee’s

findings or that the record evidence clearly contradicts the conclusions. The

Florida Bar v. Elster, 770 So.2d 1184, 1185 (Fla. 2000).

19

ARGUMENT I. THERE IS NO COMPETENT AND SUBSTANTIAL EVIDENCE IN

THE RECORD TO SUPPORT THE ULTIMATE FINDING OF THE TRIAL COURT THAT RESPONDENT CONTEMPTUOUSLY DISOBEYED THIS COURT’S ORDER OR AUTHORITY.

47. Contempt is “A deliberate and contumacious disregard of the court’s

authority, Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970), or bad faith, willful

disregard or gross indifference to an order of the court, or conduct which evinces

deliberate callousness, Herold v. Computer Components International, Inc., 252

So.2d 576 (Fla. 4th DCA 1971). As such, The Florida Bar was compelled to prove

that Respondent engaged in a willful violation of an order of this this Court. See

Romano v. Russo, 620 So.2d 795 (Fla. 3d DCA 1993); Scrimshaw v. State, 592

So.2d 753 (Fla. 3d DCA 1992); Hunnefeld v. Futch, 557 So.2d 916 (Fla. 4th DCA

1990). (Intent necessarily is an essential element of contempt). Paul v. Johnson,

604 So.2d 883 (Fla. 5th DCA 1992); Thomson v. State, 398 So.2d 514 (Fla. 2d

DCA 1981).

48. The gravamen of the Amended Petition of The Florida Bar is that

Respondent was practicing law because he was representing himself and

inadvertently referred to himself as an attorney in a subpoena he issued while

representing himself in a court matter before Judge Edward Newman. Although

arguably not the best decision, it was the choice that the Respondent made. The

20

Florida Bar has attempted to equate acting as one’s own representative with

practicing law. Such is not the case. In this regard, The Florida Bar cited The

Florida Bar v. Tannenbum, 267 So.2d 824 (Fla.1972). See Amended Petition,

Index Tab 1, Page 4. Reliance on this case is misplaced. Tannenbaum was

drafting documents on behalf of a corporation and concurrently “in control” of the

corporation’s legal affairs. Tannenbaum was holding himself out as an attorney

licensed to practice law as he was representing an entity. Tannenbaum was not

only drafting and preparing contracts for a corporation - unreviewed by a licensed

attorney - but also continued to advise the corporation’s executives during his

suspension.

49. Below is an analysis of are some other cases, reflecting situations

where respondents were found guilty of contempt for the unauthorized practice of

law. These cases, like Tannenbaum, reflect facts dissimilar from the allegations or

judicial comments and findings from The Florida Bar and trial court respectively.

50. There is no question that Respondent signed a subpoena referring to

himself as an attorney. Respondent intended to sign the subpoena as his signature

appears on the second page of it. Respondent further intended to secure the

appearance of Detective Migala – who did appear although advised by The Florida

Bar three (3) days beforehand, on May 11, 2009, that Respondent had no authority

to sign the subpoena.

21

51. However, there is no record evidence that Respondent intended to

hold himself out as an attorney licensed to practice law, and by virtue of that

representation, intended to secure Detective Migala’s appearance. The record only

suggests, and the trial court agreed, that the failure to excise “attorney(s)” from

Page One (1) of the subpoena was an “oversight”, a “mistake”, “negligent”, and

that Respondent displayed no “disrespect”. The oversight was highlighted by the

uncontroverted fact that on Page 2 of the subpoena, Respondent deleted the word

“Esquire”, deleted his bar number, and deleted the name of his former firms –

which always accompanied his signature during the twenty-one (21) years he was a

solo-practitioner.

52. In The Florida Bar v. Rood, 678 So.2d 1277 (Fla. 1996), the referee

found that Rood failed to notify all his clients of his suspension and that during the

suspension period he continued to meet with, represent and advise clients, and

continued to receive and disburse client funds from his bank accounts. The record

contained documentary exhibits and testimony from Rood’s former clients that

supported the findings.

53. In The Florida Bar v. Simring, 612 So.2d 561 (Fla. 1993) this Court

held:

“The referee correctly found the respondent guilty of contempt for allowing his name to remain on the door without any designation of his suspended status. See

22

The Fla. Bar v. Breed, 378 So.2d 783 (Fla. 1979); The Florida Bar v. Brigman, 322 So.2d 556 (Fla. 1975). The referee also found the respondent guilty of contempt for sending legal letters to a client without any designation of his suspended status. The record shows that the respondent represented Mildred Krause on a personal injury matter prior to his suspension. In February 1991, the respondent notified Krause about his temporary suspension. The respondent, however, continued to work on Krause’s legal matter under the supervision of another lawyer. The record shows that the respondent mailed eight letters to Krause concerning the case. All of these letters, except the first letter, are on stationary from the Law Offices of Garfield & Associates, P.A., and are signed by the respondent without any indication as to his suspended status. The respondent’s first letter to Krause is on letterhead stationary which states: Law offices, Ellis S. Simring, Professional Association. Further, the first letter is signed by the respondent without any indication of his suspended status.”

54. In The Florida Bar v. Greene, 589 So.2d 281 (Fla. 1991), this Court

held:

“We accept the referee’s findings that Greene engaged in the practice of law while under suspension. The fact that Greene did not charge a fee for his services and was a personal friend of those for whom he performed the services does not make a difference. The Fla. Bar v. Keehley, 190 So.2d 173 (Fla. 1966) (nonattorney who prepared company charters and other documents engaged in unauthorized practice of law even though he performed the services for family and friends and did not charge a fee). However, we reject the referee’s recommendation as to the appropriate discipline. First, the Bar admits that

23

there is no authority to impose a fine as a condition of discipline. Thus, the referee erred in recommending that Greene pay a $2,500.00 fine. We agree with the Bar that further suspension of Greene would be fruitless. Greene has a long history of disciplinary violations. See The Fla. Bar v. Greene, 557 So.2d 35 (Fla. 1990); The Fla. Bar v. Greene, 515 So.2d 1280 (Fla. 1987); The Fla. Bar v. Greene, 485 So.2d 1279 (Fla. 1986); The Fla. Bar v. Greene, 463 So.2d 213 (Fla. 1985); The Fla. Bar v. Greene, 235 So.2d 7 (Fla. 1970). He has completely disregarded lesser forms of discipline imposed by this Court. He has failed to abide by conditions of probation. He has continued to practice law despite his suspension. We have found disbarment appropriate in other cases in which attorneys have engaged in the practice law while suspended. See Fla. Bar v. Jones, 571 So.2d 426 (Fla. 1990) (attorney disbarred for continuing to practice law during suspension, failing to comply with rules requiring him to inform clients of his suspended status, and misrepresenting to Court that he had complied with the suspension order); The Fla. Bar v. Bauman, 558 So.2d 994 (Fla. 1990) (attorney disbarred despite a referee’s recommendation of suspension where attorney engaged in at least five acts of practicing law while under suspension). Given Greene’s past disciplinary violations, his refusal to adhere to lesser forms of discipline, and his failure to participate in this case, we find that disbarment is warranted.

55. In The Florida Bar v. Jones, 571 So.2d 426 (Fla. 1990), this Court

disbarred Jones after the referee made twenty-three (23) separate findings of fact of

continuing to practice law during suspension, failing to comply with rules

24

requiring him to inform clients of his suspended status, and misrepresenting to

Court that he had complied with the suspension order.

56. In Scrimshaw v. State, 592 So.2d 753 (Fla. 3d DCA 1992), the court

stated “if the matter complained of as constituting contempt, when fairly

interpreted, does not have a reasonable tendency to degrade or to embarrass or

hinder….it is not a criminal contempt….when an intent to offend is denied under

oath.” The court also cited Hunnefeld stating “there must be proof that the

defendant intentionally disobeyed the court.” Id. @ 74.

57. There is no question that Respondent has admitted from the very

inception of this case and even earlier that what he did was wrong. Responded

immediately apologized and agreed to quash the subpoena at the May 14, 2009

hearing before Judge Newman, paid the state attorney’s office $300.00 for the

mistake, and apologized to The Bar on June 3, 2009 in a letter enclosing the 3-6.1

quarterly affidavit. Respondent has NEVER attempted to justify his actions as he

has always recognized the mistakes. However, there is no competent and

substantial evidence to infer or suggest that Respondent intentionally disobeyed

this court, acting willfully, contumaciously or with gross indifference. To the

contrary, Respondent has been compliant from the beginning of his troubles in

December of 2007. He consented to disbarment – acknowledging wrongdoing –

and has, for the past three (3) years has made every conceivable effort to comply

25

with any obligations imposed upon him – whether it be by this court or any other

court to which Respondent is subject. In short, there was no willful neglect on the

part of Respondent. Neglect yes, but not willful.

58. Hunnefeld also expressed that “…there must be evidence of the

individual’s intent to disobey the court’s order or, that he or she was guilty of such

gross dereliction that the intent will be presumed, citing Rowe v. Wille, 415 So.2d

79, 81 (Fla. 4th DCA 1982). Significantly, the Bar presented no testimony, direct

or circumstantial, controverting Respondent’s denial of intent and the trial court

made no indication that she ever rejected Respondent’s sincerity or veracity. The

trial court may have referred to excuses being made by Respondent, however, they

were none other than the admitted mistakes.

59. The Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005) provides

additional authority in support of the above argument. This case points out that the

burden of proof by The Florida Bar is clear and convincing for the issues herein

and is another example of a suspended/disbarred attorney engaging in the practice

of law as opposed to the allegations of The Florida Bar hearing to wit: that the

undersigned engaged in the practice of law because he signed his name on a

subpoena referring to himself as an attorney, while representing himself in a court

proceeding. Forrester was directing a newly licensed attorney of the practice of

26

law and continued to have direct, in every aspect, contact with the clients. She

deliberately took this course of action. Id. @ 653.

60. The Florida Bar’s reliance on The Florida Bar v. Anne Bitterman, 33

So.3d 686 (Fla. 2010) is misplaced as well. The Florida Bar omits the pertinent

facts of Bitterman which include, but are not limited to;

a. Not only did Bitterman go to the Women’s Detention Center

and present her Florida Bar card, but also she used the bar card

to obtain access to a room reserved for attorneys visiting clients

or witnesses in jail;

b. Bitterman thereafter went to Diaz Towing where she

represented herself as counsel for the vehicle’s owner, again

using her Florida Bar card, in order that the vehicle would be

released to her;

c. There was a finding that the above actions were for Bitterman’s

own benefit;

d. Bitterman believed that she was justified in her actions;

e. Bitterman’s actions were deceitful in that she used her Florida

Bar card to misrepresent her status as an attorney, both to enter

the jail and obtain immediate and private access to a prisoner

and to obtain the prisoner’s vehicle from the impound lot;

27

f. In 1996, Bitterman was suspended from the practice of law for

illegally taping telephone conversations;

g. Bitterman was suspended a second time for various reasons

including incompetency and neglect;

h. Bitterman was suspended a third time for various reasons,

including conduct involving dishonesty;

i. Bitterman was suspended a fourth time based on incompetency

and lack of diligence;

j. Bitterman was suspended for a fifth time for contempt of the

terms of a prior suspension; and

k. Bitterman received a public reprimand.

61. Thus, The Florida Bar’s assertion that the Bitterman case stands for

the proposition that “the act of holding herself out an as an attorney in good

standing … [is] sufficient in and of itself to give rise to a finding of contempt…” is

simply not true.

62. Finally, The Florida Bar states that Respondent “insinuates that the

Florida Supreme Court was partially the blame for his noncompliance ” because

Respondent mentioned in his Motion for Final Summary Judgment that there was

no mention of Rule 3-6.1 in the Supreme Court order of September 20, 2008. As

reflected in the context of Respondent’s Motion for Final Summary Judgment, that

28

was stated because it was a fact – relevant to whether or not there was a

contemptuous and wanton disregard of a court order. Respondent has chosen to

represent himself in these proceedings. Although many in the past have actually

commented on the wisdom of this choice, it is a right and at times an economic

necessity. As a pro se advocate, Respondent should not be deterred by The Florida

Bar from aggressively and thoroughly advocating his case. However, just because

Respondent addressed the fact that the 3-6.1 requirement is not reflected in this

Court’s September 20, 2000 order, does not obviate the necessity of compliance.

Respondent was/is only of the opinion that it is/was a relevant fact that may or may

not have been considered by the trial court. The 3-6.1 issue was brought to

Respondent’s attention on one (1) occasion (over seven (7) months prior to the

filing of the Petition at issue) and Respondent, after having coming across

Respondent Exhibit “1”, in good faith believed that he had already complied.

Respondent may not have read the rule at the time he responded to TFB’s Exhibit

“4”, but that does not evince a willful intent to disobey this court’s authority.

There are times – even multiple times – when lawyers draft briefs, motions,

pleadings, discovery requests, present argument, and deliver opening statements-

all of which are governed by the Rules of Evidence, the Rules of Civil Procedure,

Family Law Rules, Rules of Criminal Procedure, case-law, etc. Not one of us can

profess to be intimately familiar with all of the foregoing as it relates to every

29

aspect of law. Every day that passes, even after years and years of study is a

learning experience. One actually learns something new each day – whether it be

from our experiences or from the continued desire to absorb more knowledge.

Concurrent with these experiences, is the endeavor to read more, remember more

and be more on top of the profession. However, the failure to read a rule or

assuming something – later determined to be a mistaken belief - is not

contemptuous. Contemptuous conduct implies a path undertaken by one to defy or

disregard that which he/she knows is harmful. Respondent is not guilty of such

conduct.

II. THERE IS NO COMPETENT AND SUBSTANTIAL EVIDENCE EXHIBITING THAT RESPONDENT ENGAGED IN A PATTER OF MISCONDUCT OR HAS ENGAGED IN MULTIPLE OFFENSES TO BE CONSIDERED AGGRAVATING FACTORS.

63. The ROR reflects that the trial court considered the aggravating factor

of a “pattern of misconduct” pursuant to Standard 9.22(c). Although the trial

court indicated that it “considered” this aggravating factor, the order does not

succinctly state that she found that there was necessarily a pattern of misconduct.

Assuming that Respondent is mistaken and that the ROR is interpreted to mean

that the trial court found a pattern of misconduct, and that of multiple offenses, this

unexplained finding was error. The most recent decision of the Florida Supreme

Court addressing the issue of whether or not there has been a pattern of misconduct

30

is again the case of The Florida Bar v. Anne Bitterman, 33 So.2d 686 (Fla. 2010).

This court reiterated the long-standing principle that the court considers prior

misconduct and cumulative misconduct, and treats more severely cumulative

misconduct than isolated misconduct. Citing Fla. Bar v. Vining, 761 So.2d 1044,

1048 (Fla. 2000). As an example of this prior, cumulative and pattern of

misconduct, the court noted in Bitterman that she had a history of misconduct that

dates back to 1996. Such history included:

a. Neglecting legal matters and taping telephone conversations

without the other parties’ consent resulting in a suspension of

thirty (30) days and a period of probation for three (3) years;

b. A ninety (90) day suspension with a three (3) year probationary

period resulting from inadequate communication,

incompetence, and neglect of legal matters;

c. A public reprimand in July of 2001 as a result of a conflict of

interest; another suspension on September 23, 2004 as a result

of inappropriate behavior in dealing with an unrepresented

person and conduct involving dishonesty, for a period of

ninety-one (91) days with three (3) years probation;

31

d. Another ninety-one (91) day suspension and three (3) year

probationary period imposed based upon incompetence and

lack of diligence;

e. Bitterman was found in contempt of the terms of probation

imposed on September 23, 2004 resulting in a suspension for a

period of six (6) months; and then there were the findings in the

2010 opinion relating to Anne Bitterman concerning the facts

and circumstances of that particular case addressed under

Argument I.

64. The record in the case at bar clearly reflects that the execution of the

subpoena at issue was an isolated event – taking into consideration the numerous

documents that Respondent has filed on his own behalf in certain legal matters and

as soon as it was brought to his attention on May 14, 2009 – three days after the

issuance of the subpoena – that the subpoena was improperly issued, etc., he

agreed to having the subpoena quashed. Respondent has reviewed many of the

opinions of this court with respect to those instances when a Respondent has been

found guilty of engaging in a pattern of misconduct. All cases that Respondent has

reviewed have factual scenarios much more egregious than the facts in the case at

bar and, in fact, involve multiple instances of misconduct equating to a pattern.

32

65. For example, in The Florida Bar v. Springer, 873 So.2d 317 (Fla.

2004), there were multiple instances of misconduct, repeated in six matters in

which the attorney represented an individual or a condominium association of

which the individual was president. The referee found, in support of the multiple

offenses and pattern of misconduct factors, that Springer’s multiple incidents of

incompetent action followed by lies, than more lies to cover up their deceit,

demonstrated a defect, if not an absolute absence, of honesty, integrity, and ethical

judgment. Id. @ 320.

66. In the case of The Florida Bar v. F. Lee Bailey, 803 So.2d 683 (Fla.

2001), again there was egregious and cumulative misconduct well beyond what has

been and alleged and admitted by Respondent in these proceedings. Respondent

has consented to disbarment and has been effectively disbarred since January 3,

2008. For more than two and one-half (2½) years, Respondent has demonstrated

that the two (2) incidents complained of were isolated, which is clearly reflected in

the court’s comments throughout the course of the proceedings. On several

occasions during the course of the proceedings, the trial court indicated either that

what Respondent did was either an oversight, a mistake, negligent (although on

other occasions, she vacillated and made other inconsistent findings, such as gross

negligence and even the evidentiary- unsupported finding of an intent to disobey

this court’s orders. Any such findings are not supported by the record, and

33

Respondent vehemently disagrees with any such implication to the contrary. The

trial court at the same time even acknowledged that it did not believe that

Respondent ever meant to be disrespectful.

67. Another example of cumulative misconduct or a pattern of

misconduct is the case of The Florida Bar v. Vining, 761 So.2d 1044 (Fla. 2000).

In that case, there was a two-count complaint alleging multiple acts of misconduct.

The referee recommended that Vining be disbarred, noting that Vining had

exhibited a pattern of disregard and contempt for his clients and the opposing

counsel during the course of the three year disciplinary proceedings; was currently

serving a three-year suspension; has another pending disciplinary proceeding, and

has refused to admit any wrongdoing in his conduct with his client or in refusing to

respond to the Bar’s request for information. The ROR herein makes no such

findings and the record contains no such facts.

68. Finally, as an example of misconduct, there is another recent case,

The Florida Bar v. Tipler, 8 So.3d 1109 (Fla. 2009). Again, there were, in fact,

multiple offenses and a pattern of misconduct in Tipler not present in the case at

bar.

III. THE TRIAL COURT ERRED BY NOT HAVING FOUND THE MITIGATING FACTORS OF INTERIM REHABILITATION AND REMORSE PRESENT IN THESE PROCEEDINGS.

34

69. Respondent has never been dishonest in these proceedings, and he

admitted that the subpoena was issued incorrectly immediately when it was

brought to his attention on May 14, 2009. There is nothing more that Respondent

could have done after he executed the subpoena on May 11, 2009. Respondent has

acknowledged that he made the mistake by not excising the reference to his being

an attorney on Page 1 of the subpoena – although he excised all information on

Page 2 that in any way could have further suggested, inaccurately, that he was a

licensed attorney. He excised his bar number, the prior firm’s name, and deleted

the word “Esquire” after his name. This evidence is uncontroverted. Furthermore,

Respondent acknowledged his failure to submit the 3-6.1 quarterly reports,

apologized, and has since complied uninterruptedly.

70. The ROR reflects that the trial court failed to consider, at all, the

mitigating factor of interim rehabilitation. See Standard 9.32(j). As is evident in

these proceedings, the Respondent has been very careful in suggesting, in any

manner, that he is a licensed, practicing attorney. These proceedings commenced

well over one (1) year ago. Not only has the Respondent been careful in these

proceedings, but also in other proceedings in which he is still involved (i.e., his

35

perennial divorce – which is still pending and actively being litigated – some five

(5) years after the Initial Petition for Dissolution was filed).6

71. With regard to the 3-6.1 quarterly affidavits, the record also reflects

that since June 3, 2009, the quarterly affidavits of both Mr. Calil and Respondent

have been filed timely and consistently. They have been filed in June of 2009,

August of 2009, November of 2009, February of 2010, May of 2010, and are

scheduled to be filed again at the end of this month.

72. Finally, with regard to interim rehabilitation, Mr. Calil testified as to

the Respondent’s conduct during the past several years while working under his

direction within his law office. There have been no instances complained of by

Mr. Calil relating to non-compliance with any of The Bar rules that were reviewed

together by both Mr. Calil and Respondent.

73. And why has Respondent’s conduct been deemed to be

“unremorseful” while at the same time the trial court recognized the applicability

of Standard 9.32(d) and 9.32(e)? The theme of this entire brief is the

demonstrated display of not only remorse, but also acknowledgement of mistakes,

apologies to all, and a lesson to be more careful. Although Respondent has been

compelled to defend himself and his personal convictions that he has never acted

contemptuously, nothing should be interpreted to mean that he has not been or is 6 Respondent at the present time has a hearing scheduled before Magistrate Alejandro Gamboa on September 15, 2010 and three (3) hearings scheduled on October 5, 2010 before the Honorable Migna Sanchez-Llorens.

36

not remorseful for not only the issues herein, but also for the initial mess that he

caused to all - leading up to his emergency suspension in January of 2008.

37

IV. THE REFEREE’S RECOMMENDATION OF A PUBLIC REPRIMAND DOES COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS.

74. In reviewing a referee’s recommended discipline, the court’s scope of

review is broader than that afforded to the referee’s findings of fact because,

ultimately, it is this court’s responsibility to order the appropriate sanction. See,

Fla. Bar v. Ticktin, 14 So.3d 928, 939 (Fla. 2009). However, the court will

generally not second-guess the referee’s recommended discipline as long as it has a

reasonable basis in existing case law in the Florida Standards for Imposing Lawyer

Sanctions. See, Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999). Unlike the

facts in The Florida Bar v. Bitterman, the referee in the case at bar expressly noted

her consideration of the standards for determining the appropriate sanction.

75. Although the referee did not cite existing case-law to support her

recommendation herein, it is clear that, during the hearing of March 18, 2010 (“T-

II”) she considered the argument of Respondent, considered the argument of The

Florida Bar, and considered the cases presented by Respondent; those of The

Florida Bar v. Weisser, 721 So.2d 1142 (Fla. 1998) and the case of The Florida

Bar v. Neckman, 616 So.2d 31 (Fla. 1993).

76. The Florida Bar, in its argument on appeal, now suggests that “a

consecutive five-year term of disbarment is the appropriate sanction in this case”.

38

The Florida Bar originally sought permanent disbarment within the Amended

Petition. The Florida Bar v. Weisser rejected such severe sanctions. This court

rejected a ten (10) year disbarment as it would have been excessive in light of

sanctions being imposed in other cases involving more egregious conduct. Id. @

1146. Again, recognizing that Respondent is not innocent of being neglectful in

this case, at the same time the facts in Weisser are more egregious than the facts

herein. In Weisser, the court cited various cases on Page 1146 where Respondents

were disbarred for ten years. The court stated “These cases involve conduct much

more egregious than that exhibited by Weisser in the present case, and we therefore

find that a five-year disbarment retroactive to November 14, 1996 – the date the

referee’s report was filed – is the appropriate sanction in this case” - rather than the

ten-year disbarment entered by the referee. To be sure that Weisser’s conduct was

more egregious than that of the Respondent herein, Weisser initiated litigation and

engaged in extensive legal representation for over two and one-half years. In

addition, Weisser previously had been disciplined for similar acts of misconduct,

as this court suspended him in 1988 for intentional and unconscionable

misconduct, issued an order in 1990 commanding him to cease practicing law until

reinstated to the Bar, and granted his Petition for Resignation in 1991 which was

entered while disciplinary allegations were pending against him. The referee in

39

Weisser also found several portions of his testimony to be untruthful. Nothing like

that has been alleged or adjudicated in the case at bar.

77. The referee in the case at bar found the case of The Florida Bar v.

Neckman, the most similar to the facts herein. In the referee’s report in Neckman,

the referee found that Neckman had represented himself to be an attorney in

connection with a debt collection matter after the date his resignation became

effective. In Neckman, this court stated that “disbarment would be appropriate

with a violation resulting in injury or is an intentional repetition of prior

misconduct for which discipline has been imposed, citing Standard 8.1. In view of

the fact that the record is replete with evidence that Respondent negligently

violated the terms of a prior disciplinary order, public reprimand, as in Neckman, is

warranted by the misconduct exhibited. Standard 8.3 states that “public reprimand

is appropriate when a lawyer:

a. Negligently violates the terms of a prior disciplinary order and

such violation causes injury or potential injury to a client, the

public, the legal system, or the professional; or

b. Has received an admonishment for the same or similar

misconduct and engages in further similar acts of misconduct.

40

78. Further support for the appropriateness of the reprimand is

demonstrated by the number of substantive mitigating factors the court considered

in arriving at the discipline imposed, they were:

9.32(b). Absence of a dishonest or selfish motive;

9.32(c). Personal or emotional problems;

9.32(d). Timely good faith effort to make restitution or to

rectify consequences of misconduct; and

9.32(e). Full and Fair Disclosure to disciplinary board and co-

operative attitude toward these proceedings.

79. In light of the mitigating factors and the trial court’s careful

consideration of Neckman, the penalty imposed comports with existing case-law

and/or the Standards. To be sure, the court expressed “…based on Neckman, …in

conjunction with…8.3(a) [and] 8.1 and I do think that this case, most clearly in my

mind, fits into an 8.3(a) situation. So I think a public reprimand is appropriate.”

T-II, Page 17, L.16-24.

41

CONCLUSION

In consideration of this court’s discretion, Peter Marcellus Capua

respectfully requests that this court accept the referee’s recommended discipline of

a public reprimand, based on the record evidence, to wit:

That although Respondent intentionally signed the subpoena, he was

negligent in not deleting the additional references to his being an

attorney on Page 1;

That the Respondent never intended to hold himself out as a licensed

practicing attorney;

The acknowledgement by Respondent of certain mistakes that he

made;

The fact that his conduct never rose to the level of contemptuous;

That the Respondent never meant to be disrespectful; and

The substantial mitigating factors.

Respectfully submitted,

Peter Marcellus Capua Biscayne Building 19 West Flagler Street, Suite 301 Miami, Florida 33130 (305) 316-8807 (Tel.)/(305) 373-3307 (Fax.)

Email: carbon374@gmail.com By:_______________________________ Peter M. Capua

42

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven copies of Peter Marcellus

Capua’s Answer Brief and Initial Brief on Cross-Petition were sent via U.S. Mail,

(and a true and correct copy was sent via electronic mail at e-file@flcourts.org) to

the Honorable Thomas D. Hall, Clerk, Supreme Court Building, Supreme Court of

Florida, 500 South Duval Street, Tallahassee, Florida 32399; and a true and

correct copy was e-mailed and mailed to Jennifer R. Falcone-Moore, Esq., The

Florida Bar, 444 Brickell Avenue, Suite M-100, Miami, Florida 33131; and a true

and correct copy was mailed to Kenneth L. Marvin, Staff Counsel, The Florida

Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399; on this 20th day of

August, 2010.

By:__________________________ Peter M. Capua

43

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief was typed in Courtier 14 pt. proportionately spaced Times New Roman font in Microsoft Word format.