IN THE SUPREME COURT OF FLORIDA (Before a Referee)

THE FLORIDA BAR, Complainant, Case No. SC09-2344 [TFB Case No. 2009-30,925(18A)] v. DAVID ANTHONY HARPER, Respondent. __________________________/

REPORT OF REFEREE I. Summary of Proceedings: Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to the Rules Regulating The Florida Bar, a hearing was held September 28, 2010 through September 30, 2010. The pleadings, notices, motions, orders, transcripts and exhibits, all of which are forwarded to The Supreme Court of Florida with this report, constitute the record in this case. The following attorneys appeared as counsel for the parties: For The Florida Bar - JoAnn Marie Stalcup For The Respondent – Pro Se II. Findings of Fact as to Each Item of Misconduct of Which the Respondent Is Charged: After considering all the pleadings and evidence, pertinent portions of which are commented on below, this referee finds: 1. Respondent, David Anthony Harper, is a licensed member of The Florida Bar, that he has been duly licensed in this state since 1985, and that he is therefore, subject to the jurisdiction of the Supreme Court of Florida and the Rules Regulating The Florida Bar. 2. The Florida Bar entered into evidence a composite exhibit containing 47 documents. The bar also called respondent but asked few questions. After the presentation of the bar’s case, respondent moved for a Directed Verdict which was denied by this referee after hearing argument of the parties.

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3. Respondent called the following witnesses: The Honorable Marlene Michelle Alva, The Honorable Nancy Farrar Alley, The Honorable Alan Adee Dickey, and The Honorable Clayton Daniel Simmons, some of which testimony shall be commented upon below. Respondent did not testify on his own behalf during the proceeding. Respondent entered 14 documents into evidence.1

6. Respondent failed to coordinate the date and time for the June 30, 2008 hearing with opposing counsel as required by Judge Dickey [Bar’s Exhibit 1, Tab 45]. Despite the fact USAA’s counsel contacted respondent and notified him of her unavailability, respondent refused to reschedule the hearing to a mutually convenient date and time [Bar’s Exhibit 1, Tab 45]. Opposing counsel filed a Motion for Protective Order due to her unavailability and set the matter to be heard during Judge Dickey’s short matters docket on or about June 17, 2008. [Bar’s Exhibit 1, Tab 45 and Tab 46]. Judge Dickey informed respondent and USAA’s counsel that the motions filed by both of them, some of which were discovery motions as well as USAA’s counsel’s Motion for Protective Order, were not

Two additional documents sought to be entered, but after objection by the bar to their admission was sustained, these documents were marked for identification only. 4. Respondent assisted his parents in the preparation of a lawsuit against United States Automobile Association (hereinafter referred to as USAA), Harper v. USAA, Case No. 05-CA-401 which was filed pro se in Seminole County, Florida in or around February 2005. Pursuant to yearly reassignment, the case was reassigned to Judge Alan A. Dickey in 2006. Thereafter, in or around the fall of 2006, respondent entered a Notice of Appearance. The matter remains pending in the Eighteenth Judicial Circuit, in and for Brevard County, Florida [Bar’s Exhibit 1, Tab 44, page 1 of 23]. 5. On or about May 8, 2008, respondent filed a Motion for Leave to File Second Amended Complaint as well as a Notice of Hearing which scheduled the motion to be heard on June 30, 2008 [Bar’s Exhibit 1, Tab 44, Page 4 of 23]. Thereafter, on or about June 20, 2008 respondent also filed a Motion for Leave to File Third Amended Complaint but did not file a Notice of Hearing as to this motion [Bar’s Exhibit 1, Tab 44, Page 6 of 23].

1 Respondent’s Exhibit 3, Hearing before the Honorable Nancy F. Alley, August 27, 2008 and Respondent’s Exhibit 8 (a condensed version) are identical as are Respondent’s Exhibit 4, Hearing before Honorable Nancy F. Alley, September 15, 2008 and Respondent’s Exhibit 9 (a condensed version).

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appropriate for short matters [Bar’s Exhibit 1, Tab 46, Page 4, Line 4 through Page 5 Line 3]. 7. During the June 17, 2008 proceeding, respondent notified Judge Dickey that he had scheduled his hearing using the Judicial Automated Calendaring System (hereinafter referred to as JACS) and that there was no requirement for him to coordinate hearing times with opposing counsel [Bar’s Exhibit 1, Tab 46, Page 5, Lines 18-24]. However, Judge Dickey informed respondent that JACS did not alleviate the need to coordinate hearing dates and times with opposing counsel [Bar’s Exhibit 1, Tab 46, Page 6, Lines 7-20]. Judge Dickey made it clear to respondent that he was not to schedule hearings through JACS until he had an agreement with opposing counsel [Bar’s Exhibit 1, Tab 46, Pages 6, Line 23 through Page 7, Line 19]. In addition, opposing counsel raised concerns that respondent was refusing to notify opposing counsel of his availability for hearings despite her numerous inquiries [Bar’s Exhibit 1, Tab 46, Page 9, Lines 16-24]. Respondent indicated that he understood that there was no requirement for him to coordinate with anyone [Bar’s Exhibit 1, Tab 46, Page 10, Lines 1-3]. Again, Judge Dickey directed respondent to coordinate hearing times and to respond to correspondence sent by opposing counsel [Bar’s Exhibit 1, Tab 46, Page 10, Lines 13-16]. 8. Despite the directive issued by Judge Dickey during the June 17, 2008 hearing, respondent set another hearing for September 2008 without coordinating it with opposing counsel [Bar’s Exhibit 1, Tab 47, Page 4, Lines 23 through Page 5, Lines 2]. Consequently, opposing counsel set another hearing before Judge Dickey to address this issue, only 9 days later. During this proceeding, respondent did not deny that he failed to coordinate the newly set hearing date with opposing counsel, again relying on his previous argument that JACS did not require coordination of hearing dates and times with opposing counsel [Bar’s Exhibit 1, Tab 47, Page 8, Line 17 through Page 12 Line 21]. At this point, Judge Dickey noted respondent had not denied that he failed to coordinate hearing dates or that he failed to communicate with opposing counsel [Bar’s Exhibit 1, Tab 47, Page 18, Lines 4-12] thus, Judge Dickey denied respondent access to schedule hearings through JACS because such scheduling did not change the professional courtesy requirement of the Circuit to coordinate hearings [Bar’s Exhibit 1, Tab 47, Page 20, Lines 11-25 through Page 21, Lines 1-9 and Page 21, Line 25 through Page 22, Lines 1-3]. 9. Additionally, Judge Dickey addressed the issue that respondent had filed 2 motions for leave to amend the complaint [Bar’s Exhibit 1, Tab 47, Page

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24, line 2 through Page 27, Line 20]. Judge Dickey informed the parties that he was simply going to grant respondent’s motion to amend and file a third amended complaint so that the court did not have to deal with the second amended complaint [Exhibit 1, Tab 47, Page 27, Lines 1-4]. Respondent, however, inexplicably objected to the ruling stating:

Your Honor, I’m going to object to that. I’m going to continue with my motion to amend my second amended complaint. I’m not going to allow the Court to allow me to file a third amended complaint when I have properly filed a motion for a second amended complaint. I may consider withdrawing my third amended complaint.

[Bar’s Exhibit 1, Tab 47, Page 27, Lines 5-11]. Based upon the position taken by respondent, Judge Dickey struck the motion for filing a third amended complaint based upon a finding that the motion was not made in good faith [Bar’s Exhibit 1, Tab 47, Page 27, Lines 17-19]. 10. Respondent called Judge Dickey during his case-in-chief. Judge Dickey has served on the bench in Seminole County for more than 30 years and is currently sitting on the Circuit Civil/Family bench. Judge Dickey testified that he recalled the hearings involving respondent and after review of the transcripts of the proceedings recalled the events more clearly. The Judge testified that he was required to conduct hearings to address scheduling matters due to respondent’s failure to coordinate hearings which respondent never denied. He further testified that he wished to treat respondent as a professional, but due to respondent’s conduct, respondent “would not let him” and that he had never had an attorney conduct himself or herself before him as had respondent. Finally, he testified that in an effort to save the parties time and money in dealing with the second amended complaint, because respondent had filed a motion for leave to file a third amended complaint, it made sense to simply grant respondent’s motion and allow the filing of the third amended complaint. The Judge indicated that this was the first instance where an attorney had objected to a ruling in his favor and indicated that he “could not fathom how respondent’s mind works.” 11. After the June 26, 2008 hearing, respondent filed a Motion to Disqualify Judge Dickey. In his motion, respondent stated the following at paragraph 11:

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To prevent Plaintiff’s second amended complaint from being filed, Defendant’s counsel, Ms. Buchman, made a plan to undermine the filing of Plaintiff’s second amended complaint in which Judge Dickey and his Staff knowingly and wrongly participated.

Respondent then stated the following at paragraph 26:

Thereafter, based on the professional courtesy rationale, the judge cancelled all hearings requiring the parties to start all over. However, the Judge’s cancellation of all hearings was merely a cover to hide that the purpose of the plan had been accomplished – the properly noticed hearing date on Plaintiff’s motion for leave to file her second amended complaint would have been changed.

[Bar’s Exhibit 1, Tab 1]. 12. The evidence presented by way of the bar’s exhibits and the testimony of Judge Dickey clearly and convincingly demonstrated that respondent did not have an objectively reasonable factual basis for making the above-referenced statements regarding Judge Dickey’s integrity and motivations in the Motion to Disqualify filed on or about June 27, 2008 nor did respondent prove during the final hearing that he had a factual basis in support of his statements as required under The Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001) (in attorney disciplinary proceedings under rule 4-8.2(a), the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements and where an attorney’s statements concern the qualifications or integrity of a judge the burden in an ensuing attorney disciplinary proceeding properly shifts to the attorney to provide a factual basis in support of those statements). 13. Respondent filed 2 motions for leave to amend his complaint. It is only reasonable, as he testified, that Judge Dickey would have believed that respondent had abandoned the second amended complaint because respondent had filed a motion for leave to file a third amended complaint. Judge Dickey found that the rules permitting the amendments of complaints are to be applied liberally in order to give a party a chance to state their cause of action [Bar’s Exhibit 1, Tab 47, Page 26, Lines 17-19], and granted respondent’s motion. Respondent’s unreasonable objection to Judge Dickey’s ruling granting him leave to file his third amended complaint is difficult to explain and fails to support any objectively

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reasonable basis in fact for alleging that Judge Dickey and/or his staff had wrongly participated in a plan or that his rulings were a cover to hide a plan between Judge Dickey and/or his staff and USAA’s counsel to undermine the filing of Plaintiff’s second amended complaint. 14. Judge Dickey conducted a hearing on or about July 2, 2008 addressing respondent’s Motion to Disqualify, found that the motion was legally sufficient, and asked USAA’s counsel to draft an order of disqualification [Bar’s Exhibit 1, Tab 2]. The order was issued on July 10, 2008 [Bar’s Exhibit 1, Tab 3] and the case was reassigned to Judge Nancy F. Alley on or about July 24, 2008 by Chief Judge Clayton D. Simmons [Bar’s Exhibit 1, Tab 4]. 15. On July 25, 2008, Respondent sent Judge Simmons a letter wherein he sought to have Judge Simmons appoint a judge outside the civil division “if for no other reason than to avoid the natural bias that develops when two professionals work closely together on a daily basis over a long period of time.” [Bar’s Exhibit 1, Tab 5]. Judge Simmons sent respondent a letter dated August 1, 2008, informing respondent that civil cases must stay in the civil division, that the four judges in the civil division have hundreds of cases each and that they do not routinely talk to one another about any particular case. Finally he indicated there was nothing unique about the reassignment of the case and that he would instruct Judges Dickey and Alley not to discuss the matter between them so long as it was pending. [Bar’s Exhibit 1, Tab 10, Exhibit to Motion / Respondent’s Exhibit 6]. 16. Within days of Judge Simmons’ letter to respondent, respondent filed a Motion to Disqualify Judge seeking to remove Judge Alley from the case. [Bar’s Exhibit 1, Tab 6]. In this motion respondent stated the following as it related to Judge Alley:

Plaintiff and undersigned counsel believe that fairness and impartiality is a prerequisite of every judge hearing a case and that bias in favor of the predecessor judge on the part of Judge Alley exists because of Judge Alley’s close working relationship with Judge Dickey and that bias and prejudice on the part of Judge Alley exists against Plaintiff and her counsel because Plaintiff’s previous motion to disqualify alleged wrongful conduct on the part of Judge Dickey and Judge Alley’s close relationship with Judge Dickey would lead her to do what she could to “help” rather than “hurt” Judge Dickey and rule in

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ways Judge Dickey would have ruled or would want her to rule, that is, consistently against Plaintiff and her counsel and in favor of Defendant and its counsel.

[Bar’s Exhibit 1, Tab 6, paragraph 9]. 17. Again, there was no evidence presented in respondent’s Motion to Disqualify Judge nor during the instant disciplinary proceeding which would support a finding that respondent had an objectively reasonable factual basis for making statements that impugned the integrity and questioned the motivations of Judge Alley. At the time respondent filed the motion, Judge Alley had taken no action in the case. The statements made were nothing more than conjecture on the part of respondent. The testimony elicited during the final hearing showed that Judge Dickey and Judge Alley had spent little time in the same division and/or in the same courthouse, that they had never shared an office suite, and that their offices were at the time involved in the bar’s complaint and now on different floors of the courthouse. No evidence was presented which would support a finding that Judges Alley and Dickey had a “close relationship” in either a work or social setting. 18. Moreover, during the August 27, 2008 proceeding, Judge Alley responded to respondent’s concerns. She informed respondent that she’d only been in the civil division for two months and that she had not been in the same courthouse for the last two years [Bar’s Exhibit 1, Tab 7, Page 4, Lines 9-10, and 21-23], that the issue to be decided by her was not whether Judge Dickey had been fair and impartial, but whether a case existed between the parties [Bar’s Exhibit 1, Tab 7, Page 9, Line 14 through Page 10, Line 19], and by her sworn testimony wherein she stated the following:

I am going to deny the motion to disqualify, and in doing so I’m making a finding that the grounds for disqualification do in fact not exist in this case. There is no assertion that is made in the motion that I feel would be sufficient to disqualify myself . . . .

[Bar’s Exhibit 1, Tab 7, Page 22, Lines 6-15]. She issued her written order denying respondent’s motion on September 9, 2008 [Bar’s Exhibit 1, Tab 9].

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19. Two days later respondent filed a second motion to disqualify Judge Alley [Bar’s Exhibit 1, Tab 10] wherein respondent continued to make unsubstantiated statements regarding the integrity and motivations of Judge Alley that were not supported by any objectively reasonable factual basis. He challenged her truthfulness during the hearing conducted on August 27, 2008, her knowledge of and working relationship with Judge Dickey, and continued to assert that she had an interest in protecting the rulings and reputation of Judge Dickey despite her assertions to the contrary during the August 27, 2008 proceeding. 20. Again, there was no objectively reasonable factual basis provided by respondent in his second motion to disqualify nor was any evidence presented during the final hearing in this matter which would support a determination that respondent’s second motion to disqualify Judge Alley was based upon anything more than respondent’s subjective fears, conjecture, opinion, or misrepresentations of the actual position taken by Judge Alley during the August 27, 2008 proceeding. 21. Judge Alley gave respondent a copy of her order denying his second motion to disqualify at the commencement of a hearing on September 15, 2008 which had been previously scheduled to address numerous outstanding motions in the underlying matter [Bar’s Exhibit 1, Tab 11 and Tab 12, Page 3, Lines 2-5]. 22. Thereafter, respondent informed Judge Alley that he had filed a Petition for Writ of Prohibition, provided same to her [Bar’s Exhibit 1, Tab 12, Page 3, Lines 6-12], and additionally represented to her that “[his] understanding is that provides an automatic stay until that matter is resolved.” Respondent cited to Florida Rules of Appellate Procedure 9.100(f) in his Petition for Writ of Prohibition [Bar’s Exhibit 1, Tab 15], therefore his statement that the filing of a Petition for Writ of Prohibition provides for an automatic stay until the matter is resolved was at best a misstatement of the rule and at worst an intentional misrepresentation.2

2 See, Florida Rules of Appellate Procedure 9.100; Leslie v. Leslie, 840 So.2d 1097 (Fla. 4th DCA 2003)(a petition for writ of prohibition divests a trial court of jurisdiction at the time the district court issues a show cause order); and Allen v. State, 579 So.2d 200 (Fla. 2nd DCA 1991)(the filing of a petition for wit of prohibition does not divest the trial court of jurisdiction unless and until the appellate court issues a show cause order).

As a long time practicing lawyer, respondent knows or reasonably should know that judges rely on lawyers, as officers of the court, to provide the judge with accurate information as it relates to case law, rules and/or laws being cited by the lawyer. The evidence clearly and convincingly supports a finding that Judge Alley issued a stay in the proceeding based upon the representations made by respondent [Bar’s Exhibit 1, Tab 16].

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23. During the September 15, 2008 proceeding Judge Alley disclosed to both parties that she had a personal claim against USAA because her ceiling fell down and that based upon her disclosure respondent could renew his motion [Bar’s Exhibit 1, Tab 12, Page 4, Lines 1-11]. However, instead of moving to disqualify Judge Alley based upon the disclosure, respondent chose to “stick” with the Petition for Writ of Prohibition which he had filed based upon Judge Alley’s relationship with Judge Dickey. [Bar’s Exhibit 1, Tab 12, Page 4, Lines 12-15]. Based upon the disclosure and Judge Alley’s position that she would recuse because of the claim against USAA, respondent’s insistence in continuing to pursue the Petition for Writ of Prohibition is once again, difficult to understand. 24. In the Petition, respondent continued unabated, without any objectively reasonable factual basis, to mischaracterize the relationship between Judges Alley and Dickey and the statements made by Judge Alley during the August 27, 2008 proceeding. At paragraph 20, respondent makes the following representation to the appellate court:

While Plaintiff and undersigned counsel are not privy to the inner workings of the Seminole County Court or the specific relationships between the various Circuit Court Judges, on information and belief, Plaintiff and undersigned counsel state that Judge Alley has a closer relationship to Judge Dickey than what she presents.

[Bar’s Exhibit 1, Tab 15]. However, he failed to provide the appellate court with any facts to support his statement “on information and belief.” Similarly, respondent’s assertions that Judge Alley

. . . will rule as Judge Dickey would want her to rule and will either attempt to avoid reconsidering Judge Dickey’s prior rulings altogether, or will uphold them out of loyalty or for other improper reasons, or will rule in other ways that will seriously compromise petitioner’s actions, for example, requiring Plaintiff to pay Defendant’s legal fees for the hundred pounds of frivolous legal documents that Defendant’s counsel has generated over the past few months (which Plaintiff and undersigned counsel believe were generated for just that purpose).

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Judge Alley’s interest in protecting Judge Dickey can only result in prejudice against Plaintiff and undersigned counsel, who have indirectly attacked Judge Dickey’s reputation, and this actual bias would require disqualification under Judicial Administration Rule 2.330(d)(1) . . . . Finally, Judge Alley’s close working relationship with Judge Dickey, and her stated unwillingness to consider whether Judge Dickey was fair and impartial in his previous rulings, reasonably place her impartiality in question in all further proceedings, including but not limited to Plaintiff’s motion for reconsideration of Judge Dickey’s previous rulings, which requires she disqualify herself under Canon 3E of the Code of Judicial Conduct.

[Bar’s Exhibit1, Tab 12, part of paragraph 24, and paragraphs 25 and 27] are not supported by any objectively reasonable factual basis. A careful reading of the exchange between Judge Alley and respondent during the August 27, 2008 proceeding fails to support a finding that Judge Alley stated an unwillingness to consider whether Judge Dickey was fair and impartial. Rather, it is clear that Judge Alley did not believe she needed to reconsider whether Judge Dickey’s prior rulings were a result of bias or prejudice, but whether a case between the parties existed. At no time during the proceeding did Judge Alley rule that she would not review and make a determination as to respondent’s motion to reconsider Judge Dickey’s rulings. [See, Bar’s Exhibit 1, Tab 12]. 25. Respondent’s Petition was denied by the appellate court, without opinion, on September 17, 2008 [Bar’s Exhibit 1, Tab 17]. Rule 2.330(e) of the Rules of Judicial Administration states that:

A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it

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is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.

However, rather than orally move to disqualify Judge Alley based upon her disclosure during the September 15, 2008 hearing as permitted under the rule or by the timely filing of a motion to disqualify her within 10 days of discovery of the facts constituting grounds for a motion, respondent filed a second Petition for Writ of Prohibition with the appellate court on September 24, 2008. This Petition was based not only upon Judge Alley’s relationship with Judge Dickey, but also on the disclosure made by Judge Alley [Bar’s Exhibit 1, Tab 18]. 26. Again, respondent made serious statements in this Petition regarding the integrity and motivations of Judge Alley and Judge Dickey in the underlying proceedings without any objectively reasonable factual basis for doing so. Respondent asserted that Judge Alley’s delayed admission of her affiliation with USAA was a direct conflict with her finding at the August 27, 2008 proceeding and that this admission showed that Judge Alley had been biased from the time she was appointed to the case and that she remained in the case to protect Judge Dickey in order to rule has he would have ruled had he not been disqualified [Bar’s Exhibit 1, Tab 18, pages 2-3]. Respondent further asserted that “Judge Alley and her predecessor, Judge Alan Dickey, who was previously disqualified, have colluded with Respondent and its counsel to undermine the filing of Petitioner’s second amended complaint and otherwise rule in way that will help Respondent, and disadvantage Petitioner.” [Bar’s Exhibit 1, Tab 18, page 4]. 27. During the final hearing, as well as during a hearing conducted before Judge Alley on January 22, 2009 [Bar’s Exhibit 1, Tab 26, Page 4, lines 7-18], Judge Alley indicated that she believed she had disclosed her affiliation with USAA (she is insured by USAA) prior to the September 15, 2008 proceeding. However, Judge Alley also admitted during the final hearing that she could not find any reference to a prior disclosure on the record. She further testified that she has heard many cases in which USAA is a party and that she discloses the fact she is insured by them. Additionally, she indicated that in such instances if either party wished to disqualify her due to that fact, she would enter the order of disqualification. However, if neither party moved disqualify her, Judge Alley testified she believed this was a waiver and she would proceed to hear the case before her.

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28. Even if Judge Alley failed to make a disclosure until the September 15, 2008 proceeding, not one scintilla of evidence was presented in the petition and/or during the final hearing that respondent had an objectively reasonable factual basis for making the statements he did regarding the integrity and motivations of either Judge Alley or Judge Dickey. To this point, Judge Dickey had issued only 2 written rulings both of which were favorable to respondent and Judge Alley had done nothing substantive in the case. Further, she had disclosed her affiliation which provided respondent with arguable grounds for disqualification which she had indicated she would grant. Yet again, for a reason that is difficult discern, respondent chose to continue to attempt to get the appellate court to remove Judge Alley by way of the Petition rather than by simply filing a proper motion for her disqualification. 29. The second Petition, like the first, was denied by the appellate court on or about October 2, 2008 [Bar’s Exhibit 1, Tab 19] as was respondent’s Motion for Rehearing which was denied on October 22, 2008 [Bar’s Exhibit 1, Tab 19]. Immediately after the appellate court’s denial of the rehearing motion, Judge Alley issued an order on October 22, 2008 which indicated that the prior orders signed by Judge Dickey, which favored respondent, were in full force but that all rulings on various motions for which written orders had not been issued, would be vacated and all such matters would be heard on January 22, 2009 [Bar’s Exhibit 1, Tab 21]. Among the motions which Judge Alley listed for hearing were respondent’s 2 motions for leave to file amended complaints [Bar’s Exhibit 1, Tab 21]. 30. In the interim, 8 days after the appellate court issued its order denying respondent’s second Petition for Writ of Prohibition, respondent filed a Petition for Writ of Certiorari. He again attacked the integrity and motivations of Judges Dickey and Alley without providing any objectively reasonable factual basis for doing so. He argued that Judges Alley and Dickey had a close working relationship, yet he also admitted that he knew nothing about the inner workings of the Seminole County Courthouse. He stated that Judge Alley is unwilling to reconsider Judge Dickey’s previous rulings which is a clear misrepresentation of the position she took during the September 15, 2008 proceeding, and he quotes only a portion of Judge Alley’s sworn testimony during the August 27, 2008 proceeding, which if quoted in its entirety, provides a completely different meaning than the one espoused by respondent in his motion. And finally, without any objectively reasonable factual basis, respondent continued to assert that the judges were colluding with USAA’s counsel in order to advantage USAA and disadvantage the Petitioner [Bar’s Exhibit 1, Tab 20]. This Petition was denied on January 15, 2009 [Bar’s Exhibit 1, Tab 23].

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31. On that same date, respondent filed a motion with the appellate court requesting an immediate stay in the lower court proceedings [Bar’s Exhibit 1, Tab 22]. At the time of the filing, respondent did not have the benefit of the appellate court’s order which had denied his Petition for Writ of Certiorari. Respondent’s motion was denied by the appellate court on January 20, 2009 [Bar’s Exhibit 1, Tab 24]. Consequently, the hearing scheduled in October, 2008 by Judge Alley to be heard on January 22, 2009 to address numerous pending motions, including respondent’s 2 motions for leave to file amended complaints, could proceed and the case, which had been languishing for months, could move forward. 32. Even though respondent had failed to move to disqualify Judge Alley after her disclosure, he continued to pursue alternate avenues to have her removed. Consequently, respondent filed his third Petition for Writ of Prohibition on or about January 21, 2009 [Bar’s Exhibit 1, Tab 25]. He informed Judge Alley of the filing of the Petition at the commencement of the proceedings on January 22, 2009 [Bar’s Exhibit 1, Tab 26, Page 3, Lines 9-12]. Again, respondent indicated he was seeking to have Judge Alley disqualified from hearing the case. Further, respondent affirmatively represented to Judge Alley that the law prohibited her from proceeding further in the matter [Bar’s Exhibit 1, Tab 26, Page 7, Lines 7-23]. This statement by respondent was a clear misrepresentation of the rule and applicable case law. However, based upon respondent’s representations to the court, Judge Alley once again stayed the lower court proceedings [Bar’s Exhibit 1, Tab 27]. 33. Not only are the statements made by respondent in the Petition not supported by any objectively reasonable factual basis, the statements are offensive. While this referee finds many statements contained in the Petition are offensive, this referee finds the following to be among the most offensive in nature:

Judge Alley hid her affiliation with, and financial interest in, Respondent’s company for almost two months after her appointment as successor to Judge Dickey (the prior Judge on the case who was previously disqualified); twice denying motions for disqualification filed by plaintiff against her and falsely swearing under oath that grounds for disqualification did not exist in the case. Only after being advised by undersigned counsel, at the September 15, 2008 Hearing, that a Petition for Writ of

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Prohibition had been filed against her, which would result in closer scrutiny of her actions by the Court of Appeals, did Judge Alley finally disclose that she was a USAA member. Further, Judge Alley works closely with Judge Dickey, and has demonstrated a bias in his favor and a reluctance to reconsider Judge Dickey’s prior rulings in contravention of Florida Statutes and Florida Rules of Judicial Administration concerning disqualification of judges. Judge Alley’s initial attempt to hide her USAA membership; her willingness to falsely swear under oath that “grounds for disqualification do not exist in this case;” her finding that the “Court stands fair and impartial as between the parties and their respective interests” when she was at all times a USAA member, and her demonstrated reluctance to reconsider the rulings of her predecessor, Judge Dickey, has resulted in Petitioner and the undersigned counsel reasonably fearing that Judge Alley will not be fair and impartial or follow the law in future proceedings.

[Bar’s Exhibit 1, Tab 25, Pages 2-3]. Respondent’s continual attack before the appellate court displays his unrelenting, single-minded focus in removing Judge Alley from the case. These attacks further demonstrate that in his efforts to remove Judge Alley from the case, he failed to ensure that his statements were truthful or that his statements were not made with reckless disregard as to their truth or falsity. A review of the transcripts of the proceedings before Judge Alley fails, in any measure, to support the assertions made by respondent which impugned the integrity and motivations of Judge Alley. 34. This Petition was denied without prejudice by the appellate court on January 22, 2009 for respondent to “file a new motion below, based on Judge Alley’s disclosure at the September 15, 2008 hearing.” [Bar’s Exhibit 1, Tab 29]. Based upon this order, it would appear that the appellate court was giving respondent an opportunity to do what he clearly should have done previously, that is, to file a proper Motion to Disqualify.

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35. However, the evidence established that respondent had no need to file a Motion to Disqualify Judge Alley by the time he received the appellate court’s order because Judge Alley had issued her own sua sponte order recusing herself after the January 22, 2009 hearing [Bar’s Exhibit 1, Tab 28]. 36. Questions arose during the final hearing as to the date of the Order of Recusal and Judge Alley commencing the proceeding on January 22, 2009. Judge Alley testified that when she signed her name to the order, the order was not dated and that the dates contained on the order were not in her handwriting. She further testified that she was unsure at the time of the January 22, 2009 hearing that she was actually going to recuse herself. This position is supported by her statements during the January 22, 2009 hearing wherein she stated as follows:

I’ve already granted your motions. This doesn’t make any sense. I granted your motion on all of Judge Dickey’s orders that were against you. . . . I agree. I made disclosure. You haven’t moved again for a disqualification based on disclosure. . . . Sir, I understand. You haven’t asked me to recuse based on that. When you do, I would. . . . I cannot recuse myself because I don’t feel prejudiced. That would be a violation of my oath of office. I disclosed. Even though it’s late, if you move to disqualify me, I will grant it. But you haven’t and I’ve asked you to. But, I have a writ of prohibition, and he says I can’t rule on anything that’s pending, so we’re done.

[Bar’s Exhibit 1, Tab 26, Page 3, Line 24 through Page 4, Line 2; Page 5, Lines 1-3; Page 6, Line 25 through Page 7, Line 2; and Page 8, Lines 11-19]. Nevertheless, during the final hearing, Judge Alley testified that after the January 22, 2009 hearing, she contacted the bar because she had concerns regarding the conduct engaged in by respondent. She indicated her motivation in contacting the bar was because she believed respondent was trying to keep the underlying case from moving forward, that he was not diligently prosecuting the case, that he failed

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to behave as an attorney should, that his conduct in her courtroom was erratic, that she had concerns that his client was not receiving proper representation, and finally, that she felt if he needed assistance of any type such assistance might be obtained through the bar. 37. This referee has determined that Judge Alley did not recuse herself until after the proceeding conducted on January 22, 2009 [See, Bar’s Exhibit 1, Tab 44, Page 14 of 23] and that respondent again made a misrepresentation to the court that Florida Appellate Rule 9.100(f) stayed the proceedings. 38. After Judge Alley recused herself, on or about January 27, 2009, Judge Simmons reassigned the underlying matter to Judge James E. C. Perry [Bar’s Exhibit 1, Tab 30]. Respondent filed Plaintiff’s Petition to Judge Perry for Reconsideration of Orders and Rulings of Previously Disqualified Judges Nancy F. Alley and Alan A. Dickey on or about February 23, 2009 [Bar’s Exhibit 1, Tab 31]. 39. Respondent again asserts, without any objectively reasonable factual basis for doing so, that “bias existed on the part of Judge Alley in favor of Judge Dickey and Defendant and its counsel and against Plaintiff and her counsel at the time of her rulings and findings in this case based on her failure to timely disclose her affiliation with Defendant’s company, her affiliation with Defendant’s company (sic), her relationship with Judge Dickey, and her statements made, and actions taken in this case.” [Bar’s Exhibit 1, Tab 31, Paragraph 2]. 40. Judge Perry denied the motion and soon thereafter began his tenure on the Supreme Court of Florida. On March 19, 2009, respondent filed Plaintiff’s Motion for Reconsideration of March 4, 2009 Order Denying Plaintiff’s Petition to Judge Perry for Reconsideration of Orders and Ruling of Previously Disqualified Judges Nancy F. Alley and Alan A. Dickey [Bar’s Exhibit 1, Tab 33]. This motion was denied by Judge Simmons on March 24, 2009 [Bar’s Exhibit 1, Tab 34]. 41. As he had done in all other instances where the trial court issued an adverse ruling, respondent again filed a petition with the appellate court. On or about April 11, 2009, respondent filed a Petition for Writ of Certiorari wherein he alleged prejudice and/or misconduct on the part of Judges Alley, Dickey, Simmons and Perry [Bar’s Exhibit 1, Tab 35]. 42. In particular, some of the assertions made by respondent are as follows:

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Petitioner submits that the rulings of Judges Perry and Simmons, and other actions taken by both judges, were a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal, and were made and/or taken to protect the prior improper rulings of previously disqualified Judges Dickey and Alley; to give Respondent and its counsel a tactical advantage, and/or for other wrongful purposes. . . . . . . Although Judge Alley ultimately did recuse herself; she did so, not based on her interest in Defendant’s company, but rather based on her stated bias against undersigned counsel. Furthermore, after recusing herself, Judge Alley, like her predecessor, Judge Dickey, filed a grievance against undersigned counsel with the Bar, which undersigned counsel believes were filed in an attempt to intimidate and distract Petitioner and her counsel. . . . Plaintiff submits that Judge Perry’s and Judge Simons’ Orders denying Plaintiff’s motion/petition for reconsideration of the prior rulings/orders of disqualified Judges Dickey and Alley, and their allowing a “marathon” motions hearing over Plaintiff’s objection were a departure from the essential requirements of law, and the result of their interest in insulating the prior improper rulings of the previously disqualified judges, with whom they worked, from the scrutiny contemplated by Rule of Judicial Administration 2.330(h) and Fl. St. Section 38.07, and to give Respondent and its counsel a tactical advantage in the “marathon” motions hearing which would force Petitioner’s counsel into a position of having to be prepared to argue 16 different motions at one time; would artificially limit the time for argument

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on each motion, and would, as a practical matter, result in a “catch all” ruling, rather than the rulings that would have been made had the motions been heard as originally noticed. . . . Finally, Petitioner submits that all of the judges involved with this case, with the apparent exception of Judge Simmons, have adopted the Judicial Automated Calendaring System (JACS) which has been applied, disregarded or manipulated at a whim of the presiding judges, to give a tactical advantage to Defendant and its counsel and which is used to thwart the application of Florida Rules of Civil Procedure 1.090(d).

[Bar’s Exhibit 1, Tab 35, Pages 2, 3, 6, 10]. 43. Respondent provided no objectively reasonable factual basis for making these statements in his Petition for Writ of Certiorari nor did he provide any proof during the bar disciplinary proceeding which would support the statements made regarding the afore-referenced judges. There can be no doubt, after review of the evidence presented during the bar proceeding, that respondent clearly lost his perspective and in doing so failed to provide the judiciary the respect to which it is entitled by an officer of the court. Respondent’s statements were not legitimate, factually based criticisms of the judiciary involved in the underlying matter, but were rather his opinion, innuendo, conjecture, and outright misrepresentations regarding the motivations and integrity of the judges involved. 44. The Petition for Writ of Certiorari was denied by the appellate court on June 19, 2009 [Bar’s Exhibit 1, Tab 36]. In the interim, Judge Simmons assigned the case to himself, in part, because he was the only judge left in the Civil division available due to the disqualification of Judges Alley and Dickey and the elevation of Judge Perry to the Supreme Court of Florida. 45. USAA’s counsel filed a Notice of Hearing on or about May 8, 2009 for a hearing to be conducted before Judge Simmons on June 23, 2009 [Bar’s Exhibit 1, Tab 39]. Respondent filed an objection on May 18, 2009, arguing that

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the Rules of Judicial Administration precluded a Chief Judge from assigning a case to himself or herself. [Bar’s Exhibit 1, Tab 40]. 3

49. Once again respondent filed another baseless objection on July 11, 2009. Respondent argued that because Judge Simmons had recused himself from the case, he could not assign the case to another judge. Respondent has been licensed to practice law in Florida, Colorado, and/or California for approximately 25 years. He testified that he has had a varied background in the practice of law. Therefore, he knew or reasonably should have known that Judge Simmons could perform the administrative duty of reassigning the case to another judge in order for the underlying matter to efficiently move through the court system.

46. As a long-time practicing attorney, respondent knew or reasonably should have known that the rule did not preclude Judge Simmons from assigning the case to himself and that the objection, as couched, was baseless. 47. The hearing on June 23, 2009 was commenced by Judge Simmons [Bar’s Exhibit 1, Tab 41]. After Judge Simmons advised respondent that he had the authority to appoint himself to the case, respondent, questioned whether Judge Simmons had an affiliation with USAA. Judge Simmons confirmed that he had been insured by USAA since approximately 1965, that he had heard numerous cases involving USAA and that he would not rule for or against either party due to being insured by USAA. He further explained that he did not believe the fact he received a check periodically from USAA made him a party to the lawsuit because he had no input into when, if, or the amount of such check would be if received from USAA. However, Judge Simmons further indicated that based upon respondent’s concerns, he would assign the case to the new judge coming in to take over for Judge Perry but further indicated if this judge was also associated with USAA, the case would be assigned to a judge in Brevard County. [Bar’s Exhibit 1, Tab 42, and Respondent’s Exhibit 7, Page 4, Line 25 through Page 5, Line 19; Page 5, Lines 4 - 23; Page 11, Line 17 through Page 12, Line 6; Page 13, Line 25 through Page 14, Line 1; Page 14, Line 21 through Page 15 Line 22; Page 15, Lines 15-21; Page 20, Line 18 through Page 21, Line 22]. 48. The newly appointed judge, Judge Rudisill, was also associated with USAA. Consequently, Judge Simmons, on June 24, 2009, assigned the case to Judge Wohn in Brevard County [Bar’s Exhibit 1, Tab 42].

4

3 See, Florida Rules of Judicial Administration 2.215(b)(4). 4 See, Ginsberg v. Wiseheart, 120 So.2d 810 (Fla. 3rd DCA 1960) and Kells v. Davidson, 136 So 450 (Fla. 1931).

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The documentary evidence presented in this case, as well as the testimony of Judges Alley, Dickey and Simmons, clearly and convincingly demonstrates that respondent failed to act competently in the manner in which he attempted to have judges disqualified. Likewise the evidence clearly and convincingly demonstrates that respondent failed to make reasonable efforts to expedite the litigation in the case consistent with the interests of his client, respondent’s mother, who is in her late eighties. The underlying case was commenced in Seminole County in early 2005. The manner in which respondent chose to challenge the judges’ actions in the underlying case has done nothing but cause delay for a purpose and/or purposes that are unclear. The evidence demonstrated clearly and convincingly that respondent knowingly disobeyed an obligation under the rules of the tribunal when he scheduled a hearing before Judge Dickey after Judge Dickey had explicitly told him to coordinate hearing dates and times with opposing counsel no matter what respondent’s understanding of the calendaring system was in Seminole County, Florida. Moreover, respondent was defiant at the time of the proceedings before Judge Dickey, as he was during the proceedings before this referee, that he was not required to coordinate hearings and that he was simply following the requirements of the calendaring program. However, the most egregious conduct engaged in by respondent was his knowing false statements to the tribunal, not only as to the effect the filing of a Petition for Writ of Prohibition had on the underlying matter, but also as to the conduct of the judges as asserted by respondent in his numerous motions to disqualify and/or petitions, his outright misrepresentations as to the statements made by Judge Alley, and the statements respondent made that he knew were false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of the judges in Seminole County, Florida. The magnitude of respondent’s unethical and unprofessional conduct cannot be minimized. While the courts have clearly recognized that legitimate criticism of the judiciary is appropriate and necessary to address valid issues within the judicial system, the statements made by respondent as to the integrity and motivations of the judges involved in the underlying case does nothing to preserve the public’s confidence in the fairness of the judicial system. Respondent failed to present one scintilla of objectively reasonable factual evidence in the motions to disqualify and/or petitions before the appellate court to support the assertions he made as to the integrity and motivations of the Seminole County judges nor did he present any objectively reasonable factual evidence during the bar’s disciplinary proceeding

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which would support the statements made in the various motions and/or petitions. As such, respondent’s conduct cannot and should not be tolerated because of the harm caused, not only to the judiciary and the judicial system, but also to the public. III. Recommendations as to Whether the Respondent Should Be Found Guilty: As to each count of the complaint, this referee makes the following recommendations as to guilt or innocence: I recommend that the respondent be found guilty as to Count I and Count II of the bar’s complaint. IV. Rule Violations Found:

As to Count I: 4-1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation; 4-3.2 A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client; 4-3.3(a)(1) A lawyer shall not knowingly make a false statement of material fact or law to a tribunal; 4-8.2(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or members of the venire, or candidate for election or appointment to judicial or legal office; 4-8.4(c) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that it shall not be professional misconduct for a lawyer for a criminal law enforcement agency or regulatory agency to advise others about or to supervise another in an undercover investigation, unless prohibited by law or rule, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency or regulatory agency to participate in an undercover investigation, unless prohibited by law or rule; and 4-8.4(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.

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As to Count II: 4-3.4(c) A lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; and 4-8.4(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic. V. Recommendation as to Disciplinary Measures to Be Applied:

A. 91 day suspension and thereafter until rehabilitation has been shown; and

B. Payment of the bar’s costs in his proceeding of $5,109.17.

In making my recommendation, I have considered the following Florida Standards for Imposing Lawyer Sanctions and applicable case law: STANDARDS: 6.1 False Statements, Fraud, Misrepresentation

6.12 Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action. 6.2 Abuse of the Legal Process 6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding. 7.0 Violations of Other Duties Owed as a Professional 7.2 Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. 9.2 Aggravation 9.22(c) a pattern of misconduct; 9.22(d) multiple offenses;

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9.22(g) refusal to acknowledge wrongful nature of conduct; and 9.22(i) substantial experience in the practice of law. 9.3 Mitigation 9.32(a) absence of a prior disciplinary record. CASE LAW: The Florida Bar v. Abramson, 3 So.3d 964 (Fla. 2009). Attorney received a 91 day suspension for engaging in conduct that was disrespectful and confrontational toward the judge during jury selection in a criminal proceeding by interrupting the judge demanding that the judge hear a pretrial motion prior to voir dire and by the attorney questioning the jurors as to whom they felt was at fault, the attorney or the judge. Attorney was publicly reprimanded twice before. The Florida Bar v. Morgan, 938 so.2d 496 (Fla. 2006). Attorney received a 91-day rehabilitative suspension for engaging in conduct which was intended to disrupt the tribunal and for conduct that was prejudicial to the administration of justice. Attorney had been disciplined twice before for similar misconduct (The Florida Bar v. Morgan, 717 So.2d 540 (1998) received a public reprimand for making several intemperate or derogatory remarks to and about the judiciary and The Florida Bar v. Morgan, 791 So.2d 1103 (Fla. 2001) received a 10 day suspension for making statements that he knew were false or with reckless disregard for their truth or falsity about the qualifications or integrity of a judge). The Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001). Attorney received a public reprimand for making statements that questioned the veracity and integrity as well as the fairness of the judge before whom his client’s matters were pending. The Florida Bar v. Nunes, 734 So.2d 393 (Fla. 1999). Attorney received a three-year suspension for making disparaging remarks about judges and opposing counsel, for filing frivolous lawsuits, for representing clients after being discharged, and for making false misrepresentations to a tribunal. Attorney was on disciplinary probation at the time he engaged in the misconduct at issue in the cited case.

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The Florida Bar v. Wasserman, 675 So.2d 103 (Fla. 1996). Attorney received 2 six-month consecutive suspensions where he had an angry outburst in court after an unfavorable ruling and expressed contempt for the court, that outside the courtroom that he would advise his client not to abide by the court’s order and used profane language when speaking with the judge’s assistant on the telephone. Attorney had been disciplined 4 times previously. The Florida Bar v. Broida, 574 So.2d 83 (Fla. 1991). Attorney received a 1 year suspension for misrepresenting facts to the court and for attacking the integrity of multiple lawyers and judges with whom the attorney had come into contact, and for unnecessarily delaying court acting and proceedings by filing frivolous pleadings. Attorney had been administratively suspended for failure to pay bar dues and continuing legal education requirements since 1989.

In making my determination, I also reviewed the following case: 5-H Corporation v. Padavano, 708 So.2d 244 (Fla. 1997) wherein the district court referred a copy of a motion for rehearing filed by an attorney to the bar for consideration based upon derogatory and abusive statements made concerning opposing counsel as well as innuendos about possible court bias against one of the attorney’s clients and in favor of opposing counsel. While the bar ultimately dismissed the matter for lack of a finding of probable cause, the Supreme Court thought that the district court had acted properly in forwarding the matter because the attorney’s conduct “. . . showed at the very least a ‘substantial likelihood’ that he had compromised the integrity of the legal profession, engaged in professional misconduct, or violated one or more Rules Regulating The Florida Bar.” Id. at 246.

Finally, I considered the conduct engaged in by respondent during the instant bar disciplinary proceeding. While respondent did not engage in unethical, unprofessional, or erratic conduct during the final hearing in this matter, the actions taken by respondent asserting bias on behalf of the referees assigned to this matter, without any objectively reasonable factual basis to support the truth of the statements or with reckless disregard as to their truth for falsity, mirrors the misconduct of respondent in the underlying matter. As such, this referee has grave concerns regarding the manner in which respondent will conduct himself in the future when faced with adverse rulings by the court.

In the bar proceeding, respondent orally sought to have the original referee disqualified from this case during the initial case management conference

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conducted on January 21, 2010. He thereafter filed a motion/application to have the original referee disqualified wherein he again disparaged Judges Dickey and Alley and made statements, without any objectively reasonable factual basis, that the original referee and bar counsel were engaged in a “coordination of efforts to unfairly manipulate deadlines and procedure in order to disadvantage Respondent in the defense of this action and Respondent fears that he will not receive a fair trial in this court on account of the prejudice of Judge Hawley against the Respondent or in favor of Bar Counsel, and/or the complaining witness.” Motion/Application to Disqualify Judge, Case No. SC09-2344, filed on or about January 25, 2010, at page 7]. This motion was denied by the original referee.

As respondent had done in the underlying suit, he immediately filed a Motion for Writ of Prohibition in the bar proceeding on or about January 27, 2010, before the Supreme Court of Florida, wherein he alleged bias on the part of the referee in favor of bar counsel without providing any objectively reasonable factual basis for making the statements he made regarding the integrity and motivations of the original referee in this case [Petition for Writ of Prohibition, Case No. SC09-2344, filed on or about January 27, 2010]. This petition was denied by the Supreme Court of Florida on May 13, 2010.

Thereafter, respondent filed another motion to disqualify the original referee on or about February 1, 2010 which was denied on or about February 3, 2010. On February 4, 2010, respondent filed yet another motion to disqualify the original referee in which he continued to allege bias on the part of the initial referee in favor of the bar without providing any objectively reasonable factual basis to support his statements [Motion to Disqualify Judge/Referee and Request for Immediate Ruling Thereon, Case No. SC09-2344, filed on or about February 4, 2010]. This motion was granted by the original referee and the Chief Judge of the Nineteenth Judicial Circuit then assigned the case to this referee effective on or about February 8, 2010.

Respondent then filed a Motion to Quash the appointment of this referee on or about February 13, 2010, asserting that the Chief Judge did not have the authority to appoint a new referee to hear the matter. [See, Motion to Quash, Case No. SC09-2344, filed on or about February 13, 2010]. This motion was denied by the Supreme Court of Florida on or about May 13, 2010.

On or about February 16, 2010, respondent filed a Motion to Disqualify Successor Judge/Referee and Request for Ruling. This motion was directed toward the undersigned referee. In this motion respondent asserted as a basis for

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disqualification that the original referee and the undersigned “are both Indian River County circuit court judges; the fact the case was transferred to the 19th Judicial District instead of remaining in Seminole County, and the fact that Bar Counsel argues in favor of Judge Levin appointing Judge Pegg (rather than the chief justice appointing the successor), all cause Respondent to fear that he will not receive a fair trial on account of prejudice on the part of Judge Levin’s second appointee, Judge Pegg, against Respondent or in favor of Bar Counsel.” [Motion to Disqualify Successor Judge/Referee and Request for Immediate Ruling, Case No. SC09-2344, filed on or about February 16, 2010, at page 2]. The statements made by respondent in this motion are striking similar to those made in the motions and petitions regarding Judges Alley and Dickey. Respondent filed the motion, as he did previously, alleging bias based, in part, on the mere fact that the original referee and this referee are located in the same courthouse. This referee denied the motion on February 25, 2010.

And, as he had done in the underlying case, on or about February 22, 2010, prior to this referee ruling on the motion to disqualify, respondent filed a Petition for Writ of Prohibition with the Supreme Court of Florida seeking to prevent the undersigned referee from acting in this matter. Respondent alleged bias on the part of Chief Judge Levin and the undersigned referee, in part, due to the fact the undersigned referee worked in the same division as the original referee and because the bar argued in favor of Judge Levin making the appointment rather than the Chief Justice of the Supreme Court of Florida [See, Petition for Writ of Prohibition, Case No. SC09-2344, filed on or about February 22, 2010]. This petition was denied by the Supreme Court of Florida on May 13, 2010.

After this referee denied respondent’s motion to disqualify, respondent then filed a Petition for Writ of Certiorari. Respondent made the same assertions in this petition as he had made in the previous petition in regard to bias on the part of Judge Levin and the undersigned referee [See, Petition for Writ of Certiorari, Case No. SC09-2344, filed on or about March 9, 2010]. This petition was also denied by the Supreme Court of Florida on May 13, 2010.

VI. Personal History and Past Disciplinary Record: After the finding of guilt and prior to recommending discipline to be recommended pursuant to Rule 3-7.6(m)(1)(D), this referee considered the following personal history and prior disciplinary record of the respondent, to wit: Age: 56 Date admitted to bar: June 20, 1985

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Prior disciplinary convictions and disciplinary measures imposed therein: NONE VII. Statement of Costs and Manner in Which Costs Should be Taxed: this referee finds the following costs were reasonably incurred by The Florida Bar. A. Grievance Committee Level Costs 1. Bar Counsel Travel Costs $ 26.08 B. Referee Level Costs 1. Court Reporter Costs $ 2,217.35 2. Bar Counsel Travel Costs $ 239.44 3. Referee Travel Costs $ 587.35 C. Administrative Costs pursuant to $ 1,250.00 Rule 3-7.6(q)(1)(I) Rules of Discipline D. Miscellaneous Costs 1. Investigator Costs $ 463.45 2. Copy Costs $ 325.50 TOTAL ITEMIZED COSTS: $ 5,109.17 It is apparent that other costs have or may be incurred. It is recommended that all such costs and expenses together with the foregoing itemized costs be charged to the respondent, and that interest at the statutory rate shall accrue and be payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar. It is further recommended that respondent shall be deemed delinquent and ineligible to practice law pursuant to R. Regulating Fla. Bar 1-3.6 for failure to timely pay the costs assessed in this proceeding. Dated this 26th day of October, 2010. _____________________________ Robert L. Pegg Referee

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Original to Supreme Court with Referee's original file. Copies of this Report of Referee only to: JoAnn Marie Stalcup, Bar Counsel, The Florida Bar, 1000 Legion Place, Suite

1625, Orlando, Florida 32801-5200 David Anthony Harper, Respondent, 2674 Derbyshire Road, Maitland, Florida

32751-3666 Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson

Street, Tallahassee, Florida 32399-2300