SC09-403 amended initial breif - Florida Supreme Court · IN THE SUPREME COURT OF FLORIDA Case No:...

IN THE SUPREME COURT OF FLORIDA

Case No: SC09-403

THE FLORIDA BAR,

Complainant,

v.

PETIA DIMITROVA KNOWLES,

Respondent.

_____________________________________________________________

AMENDED INITIAL BRIEF OF RESPONDENT

_____________________________________________________________

_____________________________________________________________

On Review of Final Order of Referee

_____________________________________________________________

Petia Dimitrova Knowles, Ph.D., Esq.,

12550 Biscayne Blvd., Ste. 800,

Miami, FL 33181

(954) 600-8728

ii

TABLE OF CONTENTS

TABLE OF CITATIONS .............................................................................. iv

PRELIMINARY STATEMENT .................................................................... 1

STATEMENT OF THE CASE AND OF FACTS ......................................... 1

SUMMARY OF ARGUMENT ...................................................................... 7

ARGUMENT .................................................................................................. 9

I. Standard of Review ..................................................................................... 9

II. Improper Venue ....................................................................................... 10

III. The Referee’s Erroneous Factual Findings on the Misuse of the Verb

“Specialize” and Erroneous Conclusions on Violations of Rules 4-3.3(a)(1),

4-7.2(c)(6)(a), and 4-8.4(c) Through Use of Same Verb: ............................ 10

A. Erroneous Factual Findings; .................................................................... 10

B. Erroneous Violation of Rule 4-8.4(c); ..................................................... 12

C. Erroneous Violation of Rule 4-3.3(a)(1); ................................................. 15

D. Erroneous Violation of Rule 4-7.2(c)(6)(a). ............................................ 15

IV. The Referee’s Erroneous Factual Findings on the Email Not Sent for the

Sole Purpose of Gaining an Advantage in a Future Civil Matter and

Erroneous Conclusions on Violations of Rules 4-3.4(g), 4-8.4(a) and 4-

8.4(d) Through Same Email.......................................................................... 16

A. Erroneous Factual Findings; .................................................................... 16

iii

B. Erroneous Conclusion of Violation of Rule 4-3.4(g); ............................. 30

C. Erroneous Violation of Rule 4-8.4(a); ..................................................... 32

D. Erroneous Violation of Rule 4-8.4(d). ..................................................... 33

V. Improper Recommended Sanction of Public Reprimand While Taking

Into Account Unrelated Diversion Before the Close of Evidence and Failing

to Consider Multiple Mitigating Circumstances and Lack of Injury to the

Claimant ........................................................................................................ 33

A. Improper Consideration of Diversion as Discipline Before the Close of

Evidence and Before Finding of Guilt; ......................................................... 34

B. Mitigating Factors; ................................................................................... 35

C. Sanction: Public Reprimand. .................................................................... 39

VI. The Referee Erred in Finding the Florida Bar Costs Reasonable and

Necessary. ..................................................................................................... 41

VII. Respondent’s Due Process Was Violated. ............................................ 43

CERTIFICATE OF SERVICE ..................................................................... 50

CERTIFICATE OF COMPLIANCE ............................................................ 50

iv

TABLE OF CITATIONS

Florida Constitution

Art. V, § 15, Fla. Const. ................................................................................ 40

Cases

Al-Kilani v. Barr, 1992 US Dist. LEXIS 5974, *3 (N.D.Ca. 1992); ........... 23

DeVico v. Chase Manhattan Bank, 823 So. 2d 175 (Fla 3d DCA 2002) ..... 25

Fla. Bar v. Anderson, 538 So. 2d 852 (Fla. 1989) ........................................ 39

Fla. Bar v. Barley, 831 So. 2d 163 (Fla. 2002) ............................................. 41

Fla. Bar v. Brown, 905 So. 2d 76 (Fla. 2005) .............................................. 13

Florida Bar v. Batista, 846 So. 2d 479 (Fla. 2003) ....................................... 52

Florida Bar v. Burke, 578 So. 2d 1099 (Fla. 1991) ...................................... 17

Fla. Bar v. Bustamante, 662 So. 2d 687 (Fla. 1995). ................................... 42

Florida Bar v. Chilton, 616 So. 2d 449 (Fla. 1993) ...................................... 49

Florida Bar v. Cosnow, 797 So. 2d 1255 (Fla. 2001) ................................... 13

Florida Bar v. Cramer, 643 So.2d 1069 (Fla. 1994) ..................................... 18

Florida Bar v. Dougherty, 541 So. 2d 610 (Fla. 1989); ................................ 17

Florida Bar v. Dubow, 636 So. 2d 1287 (Fla. 1994) .................................... 38

Florida Bar v. Feinberg, 760 So. 2d 933 (Fla. 2000) .................................... 14

Florida Bar v. Flynn, 512 So. 2d 180 (Fla. 1987); ....................................... 37

Florida Bar v. Fredericks, 731 So. 2d 1249 (Fla. 1999) ............................... 51

v

Florida Bar v. Herrick, 571 So. 2d 1303 (Fla. 1991) .................................... 20

Florida Bar v. Krasnove, 487 So. 2d 1072 (Fla. 1986)................................. 37

Florida Bar v. Lanford, 691 So. 2d 480 (Fla. 1997) ..................................... 14

Florida Bar v. Limley, 517 So. 2d 13 (Fla. 1987) ........................................ 17

Florida Bar v. Neu, 597 So.2d 266 (Fla. 1992) ............................................ 17

Florida Bar v. Nowacki, 697 So. 2d 828 (Fla. 1997) ................................... 56

Florida Bar v. Price, 478 So. 2d 812 (Fla. 1985) .......................................... 53

Florida Bar re Walter Benton Dunagan, 775 S. 2d 959 (Fla. 2000). ............ 48

Florida Bar v. Rubin, 709 So. 2d 1361 (Fla. 1998) ...................................... 54

Fla. Bar v. Shoureas, 913 So. 2d 554 (Fla. 2005) ......................................... 21

Fla. Bar v. Spear, 887 So. 2d 1242 (Fla. 2004); ........................................... 41

Fla. Bar v. Springer, 873 So. 2d 317 (Fla. 2004); ........................................ 40

Fla. Bar v. Temmer, 753 So. 2d 555 (Fla. 1999). ......................................... 40

Florida Bar v. Stillman, 401 So. 2d 1306 (Fla. 1981) .................................. 53

Florida Bar v. Suprina, 484 So. 2d 1245 (Fla. 1986) ................................... 37

Florida Bar v. Sweeney, 730 So. 2d 1269 (Fla. 1998) ................................. 15

Florida Bar v. Trazenfeld, 833 So. 2d 734 (Fla. 2002)................................. 13

Florida Bar v. Vaughn, 608 So. 2d 18 (Fla. 1992); ...................................... 56

Florida Bar v. Vernell, 721 So. 2d 705 (Fla. 1998) ...................................... 53

Florida Bar v. Wohl, 842 So. 2d 811 (Fla. 2003 .......................................... 13

vi

Floyd v. Federal Nat’l Mortgage Ass’n, 704 So. 2d 1110 (Fla. 5th DCA

1998)………………………………………………………………………..

Hobe Sound Indus. Park, Inc. v. First Union Nat. Bank, 594 So 2d 334 (Fla.

4th DCA 1992) .............................................................................................. 26

In re Gault, 387 U.S. 1 (1967). ..................................................................... 51

In re Oliver, 333 U.S. 257 (1948) ................................................................. 51

In re Ruffalo, 390 U.S. 544 (1968) ............................................................... 51

Matter of Kahy, 19 I&N Dec. 803 (BIA 1988). ........................................... 23

Oddo v. Reno, 17 F. Supp. 2d 529 (E.D. Va. 1998) ..................................... 23

Rubenstein v. Rubenstein, 46 S 2d 602 (Fla. 1950) ..................................... 24

Savini v. Savini, 58 So. 2d 193 (Fla. 1952). ................................................. 24

Spevack v. Klein, 385 U.S. 511 (1967) ........................................................ 51

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) .............. 52

Statutes

§ 49.10 Fla. Stat. (2008) ....................................................................... 4, 5, 27

§ 57.105 Fla. Stat. (2008) ..................................................................... 4, 5, 27

Rules Regulating Florida Bar

R. 3-7.4(h) Regulating Fla. Bar .................................................................... 54

R. Regulating Fla. Bar 3-5.1(b)(1)(B) .......................................................... 46

3-7.6(o)(3) ..................................................................................................... 48

vii

4-3.4(g) ............................................................................................................ 9

4-3.4(h) ............................................................................................................ 9

4-7.2(c)(6)(A).................................................................................................. 9

4-8.4(a) ............................................................................................................ 9

4-8.4(c) ............................................................................................................ 9

4-8.4(d) ............................................................................................................ 9

Florida Standards Imposing Lawyer Sanctions

Fla. Stds. Imposing Law. Sancs. 7.0. ............................................................ 46



Other Authorities

INA §204(c)(1) ............................................................................................. 23

1

PRELIMINARY STATEMENT Throughout this Initial Brief, Respondent will refer to specific parts of

the record by use of the following symbols: I=Index of Pleadings, followed

by the number of pleading, as listed; ER=Exhibit/Respondent; EB=Exhibit/

The Florida Bar; T1/ T2 = Transcript of Hearing before Referee (Volumes 1

and 2, respectively); RR= Referee’s Report; A=Appendix. All symbols are

followed by the referenced page number followed by the number of line on

the page, e.g. T1 5/6-8. The Florida Bar will be referred to as “The Bar.”

Petia Dimitrova Knowles will be referred to as “Respondent.”

STATEMENT OF THE CASE AND OF FACTS

This case arises from two fraudulent annulments, carried out by the

complainant, Mr. Childs, and successfully vacated by Respondent. Between

May 30, 2007 and October 2, 2007, Respondent worked on vacating the first

fraudulent annulment of Mr. and Mrs. Childs’ marriage. Later on, between

April 21, 2008 and October 22, 2008, Respondent was involved in the

vacating of the second fraudulent annulment of the same marriage. ER1,

EB7, EB4, ER3, A1-15.

During the time period between both fraudulent annulments, from

October 2, 2007 through April 21, 2008, Mr. Childs and his attorney Mr. R.

Scott Whitehead engaged in relentless campaign to revive the first vacated

2

fraudulent annulment and, then, somehow merge it into uncontested

dissolution of marriage. T2 202/19-25, 203, 204/1-2. First, Mr. Whitehead

filed a frivolous motion for clarification of the October 2, 2007 court order,

insisting that the complaint of annulment should stand and be litigated. T2

200/16-25, 201/1-7. The same order clearly and unambiguously indicated

that the court had granted the wife’s motion to vacate final judgment of

annulment based on fraud and plainly stated: “The annulment is hereby

vacated.” EB7, A4. Then, Mr. Whitehead barraged Respondent with phone

calls, letters and emails regarding the husband’s desire to somehow revive

the vacated annulment and convert it into uncontested divorce. T2 202/19-

25, 203, 204/1-2. Even at the hearing on vacating the second fraudulent

annulment, Mr. Whitehead insisted to have the complaint for annulment

reinstated. TTC 6/22-25, 7, 9/2-22. In direct response to the exerted

pressure, Respondent sent an email to Mr. Whitehead trying to delineate the

amount of harm suffered by Mrs. Childs as a direct result of her husband’s

actions: those damages would equitably and fairly determine the reasonable

amount of a future divorce settlement. EB4. Mr. Childs then offered

potential lump sum alimony for the future divorce case in the amount of

$2,000.00 (two thousand). EB1. In direct response to this speculative offer,

Respondent sent the February 6, 2008 email to Mr. Whitehead. EB1.

3

Through this email, she tried to urge Mr. Whitehead to explain to his client

that annulment of his marriage is legally impossible, that annulment and

divorce are not interchangeable and that perjury, fraud and extortion, which

formed the basis of the first fraudulent annulment, are criminal acts, which

bear legal consequences. Id. Neither Mr. Whitehead or Mr. Childs ever

responded to the latter email via email or phone. Instead, on June 27, 2008,

Mr. Childs, free of panic, fear or any other deterrent, once again obtained a

second fraudulent annulment of the same marriage. A11/ EB4, A12/ EB5.

On September 24, 2008, the court held a hearing on Mrs. Childs’

Second Motion to Vacate Annulment, Motion for Sanctions pursuant to

57.105 and Motion to Transfer Perjury Part to the State Attorney’s Office.

EB4, A13, A14. A second judge vacated the second frivolous annulment and

entered an order directing Mr. Childs to pay $12,000.00 (twelve thousand) in

attorney’s fees directly to Respondent. EB5, ER3, A15. During the hearing,

Mr. Whitehead deposed Respondent regarding the amount of sanction

attorney’s fees. EB2/19, EB4/19. While asked about her experience as an

attorney, Respondent explained that she had been specializing in the area of

family law; at the time, Respondent was not aware that the verb “specialize,”

which usually describes the process of becoming a specialist, may be

interpreted to mean that the specializing person is already a specialist. T2

4

82/15-19, 83/15-17, 85/24-25, 86/1-2, 86/7-11, 117/17-19, 119/9-21, 120/5-

9. Within moments of the misused verb, Respondent clarified to the judge

that she was not an expert or specialist in family law, or board certified in

family law. EB2/19, T2 120/5-9.

On June 21, 2008, more than four (4) months after the February 6,

2008 email and right after Mrs. Childs’ complaint against Mr. Whitehead,

and Mr. Childs’ second fraudulent annulment, Mr. Childs filed a complaint

with The Bar claiming extortion and making no allegations regarding the

misuse of the verb “specialize.” EB3, EB4, A1.

Respondent filed her response within the time allowed. EB4. On

October 3, 2008, Bar counsel issued a notice of alleged violations. T1/18. In

her defense, Respondent provided The Bar with the trial transcript on

vacating the second fraudulent annulment. EB4. On November 5, 2008,

Respondent appeared pro se at her final hearing before the grievance

committee: Respondent was not represented by counsel who allegedly did

not make any objections. T1/19. Bar counsel invited Mr. Childs to attend the

hearing and bring additional materials at the actual hearing.EB5. Mr. Childs

did attend the hearing and brought a sizable folder with materials in support

of his complaint; Respondent received the new materials, exceeding forty

(40) pages, at the actual hearing. Id.

5

On November 10, 2008, Bar counsel prepared a second notice of

additional rule violations. T1/19. The new violations regarded statements

made by Respondent at the final hearing on vacating the second fraudulent

annulment. EB2, EB4. These statements have been extracted from the trial

transcript, provided by Respondent in her defense, and have been the topic

of extensive inquiry during the November 5, 2008 hearing. EB6/ 68-70.

Bar counsel, then, set another hearing before the Grievance

Committee to be held on January 7, 2009. A26. Subsequently, Bar counsel

advised Respondent that she and her newly-retained attorney need not

appear at the second final hearing because it will be a paper hearing only. On

January 20, 2009, The Bar issued Notice of Finding Probable Cause where

the grievance committee had found that Respondent has violated Rules 4.1-

1, 4-3.3(a)(1), 4-3.4(g), 4-3.4(h)1

On March 11, 2009, the Chief Justice of the Fifteenth Judicial Circuit,

appointed the Honorable Sandra Bosso-Pardo, a criminal county judge at the

West Palm Beach county court, to serve as referee in the upcoming

proceedings. I3. On March 20, 2009, together with Respondent’s Answer,

Respondent’s attorney filed a motion to dismiss the alleged due process

, 4-7.2(c)(6)(A), 4-8.4(a), 4-8.4(c), and 4-

8.4(d) Regulating Florida Bar. The Bar then filed its complaint. I1.

1 In its complaint, The Bar dropped the violations of Rules 4.1-1 and 4-3.4(h) Regulating the Florida Bar.

6

violations. I5. On the same date, Respondent also served on the Florida Bar

her First Set of Interrogatories and Request for Production. I6, I7. On July 9,

2009, almost 70 (seventy) days later, Bar counsel partially answered

Respondent’s interrogatories and request for production. I12, I13. On

August 11, 2009, due to The Bar’s failure to comply with discovery, the

referee reset the final hearing from August 18, 2009 to September 22, 2009

and gave ample time to the Bar witnesses to reschedule their airline flights.

I20. On August 20, 2009, the referee granted Respondent’s motion to

compel discovery because The Bar has failed to comply with Respondent’s

request for production and interrogatories. I23.

On September 22, 2009, the referee held a hearing on The Bar’s

complaint. The referee denied Respondent’s Motion to Dismiss and Motion

for Summary Judgment. T1 10, 20/12-20. Despite the inconvenience caused

by the location of the final hearing, several character witnesses traveled to

West Palm Beach County to testify on Respondent’s behalf. Before the close

of evidence and before finding of guilt, the referee heard testimony and

accepted from The Bar an Affidavit on Respondent’s diversion and

concluded that Respondent had demonstrated “continued lack of

understanding of the Rules Regulating the Florida Bar.” RR6, T2 144/12-25,

7

145/3-7. The referee found Respondent guilty on both counts2 and

recommended public reprimand while failing to take into account the lack of

injury to any party or the general public and failing to consider any

mitigating factors, including the strong, consistent testimonies of

Respondent’s character witnesses3

SUMMARY OF ARGUMENT

. RR6, I35.

The final hearing was held in Palm Beach County although

Respondent does not reside or practice in the latter county and none of the

alleged offenses occurred in the same county. Venue, therefore, was

improper.

The referee erred in her factual findings that by virtue of misusing the

verb “specialize,” corrected by Respondent within moments of its uttering,

Respondent had intentionally misled the judge, engaged in conduct of fraud

and deceit and falsely advertised herself. RR3-4. The referee erred in her

conclusion that the ignorant, non-deliberate misuse of the verb “specialize”

during a court hearing violated Rules 4-7.2(c)(6), 4.3-3(a)(1), and 4-8.4(c)

Regulating Florida Bar. RR4-5. The referee did not cite any legal authority

to support her finding of guilt here. Id.

3 Some of Respondent’s witnesses could not attend the final hearing, which was held in Palm Beach County.

8

The referee also erred in her factual findings that the email at issue

was sent to opposing counsel during the litigation of the annulment case

regarding a settlement offer of the first vacated annulment. The email was

sent in-between two fraudulent annulments, each one vacated shortly after

its filing: it was not regarding a settlement offer for an already vacated

annulment but it was a direct response to the husband’s future alimony offer

in a future divorce action. RR2-3. The referee’s finding that the email

uttered threats of criminal charges, which were part of the Respondent’s

vacation of the first fraudulent annulment, solely to give advantage to

Respondent in a future civil matter lacks evidentiary support. The referee

erred in her conclusion that Respondent has violated Rules 4.3-4(g), 4-8.4(a)

and 4.8-4(d) Regulating Florida Bar. RR4. The referee did not cite any legal

authority to support her finding of guilt on the latter two rules. RR6.

The referee erroneously recommended a sanction while failing to take

into account several mitigating circumstances, erroneously taking into

consideration Respondent’s diversion before the close of evidence and

before finding of guilt, and disregarding the lack of any injury to the

complainant, the trial court, or the public. RR6, T2 144/12-25, 145/3-7.

The referee also erred in adopting the bar’s affidavit of fees and costs

9

as reasonable, necessary and properly authenticated without competent and

substantial evidence, despite Respondent’s objection. RR7.

Furthermore, Respondent’s Due Process rights were violated because

The Florida Bar derived its additional charges (false statement to a tribunal,

conduct of fraud, deceit, dishonesty or misrepresentation and false

advertising) solely from Respondent’s defense to the initial charges arising

from the email. T1 19, EB6 68-70.

ARGUMENT I. Standard of Review

“A referee’s findings of fact regarding guilt carry a presumption of

correctness that should be upheld unless clearly erroneous or without

support in the record.” Fla. Bar v. Brown, 905 So. 2d 76, 80 (Fla. 2005)

(quoting Florida Bar v. Wohl, 842 So. 2d 811, 814 (Fla. 2003)). However, a

referee’s conclusions of law are not given the same presumption of

correctness afforded to a referee’s findings of fact. Florida Bar v.

Trazenfeld, 833 So. 2d 734 (Fla. 2002). The question of whether the

attorney’s admitted actions constitute unethical conduct is a question of law

and the standard of review is de novo. Florida Bar v. Cosnow, 797 So. 2d

1255 (Fla. 2001).

10

II. Improper Venue

Respondent resides in Broward County. Respondent practices law in

Broward and Miami-Dade Counties. The email was initiated in Broward

County and received in Okaloosa County. The final hearing on vacating the

second fraudulent annulment was held in Okaloosa County. Thus, venue in

Palm Beach County was improper. R. Regulating Fla. Bar 3-7.6(d).

III. The Referee’s Erroneous Factual Findings on the Misuse of the

Verb “Specialize” and Erroneous Conclusions on Violations of Rules 4-

3.3(a)(1), 4-7.2(c)(6)(a), and 4-8.4(c) Through Use of Same Verb:

A. Erroneous Factual Findings;

The referee’s factual findings must be predicated upon competent

substantial evidence. Florida Bar v. Lanford, 691 So. 2d 480 (Fla. 1997).

The party contesting the referee’s findings of fact needs to demonstrate that

the record contains evidence that clearly contradicts the referee’s findings or

lack of record evidence to support such findings. Florida Bar v. Feinberg,

760 So. 2d 933 (Fla. 2000), quoting Florida Bar v. Sweeney, 730 So. 2d

1269, 1271 (Fla. 1998).

The transcript of the vacation of the second annulment clearly

demonstrates that the Respondent did not intend to mislead the judge or

engage in conduct of fraud and deceit and did not falsely advertise herself:

11

“Mr. Whitehead: So $250 per hour for an attorney that’s been practicing less than three years.

Ms. Knowles: Yes, I specialize and I’m highly successful and that’s what I get paid.

Mr. Whitehead: Do you specialize in marital and family law? Ms. Knowles: Yes. Mr. Whitehead: Do you have certification, board certified? Ms. Knowles: Not yet, because as you know, I have to be practicing

for five years and then I’ll be board certified. But I do have a Ph.D., for the record, and I did teach sociology of the family, if that is relevant to you.” EB2 19/ 3-18.

The Bar never disputed the fact that Respondent corrected the misused

verb within moments.

At the final hearing, Respondent explained several times the misuse of

the verb “specialize” in family law, which she corrected within moments:

“it’s one of the areas that I am specializing in, that I am taking—going to

seminars, ordering books and that is---in that sense, specialize, not at any

point trying to present myself as being specialist.” T1 82/15-19. Answering

the same question: “Yes, meaning, again, meaning that I specialize—I am in

the process of becoming a specialist…” T1 83/15-17. Further: “I really

thought that this is the process of becoming a specialist. But I never held

myself out as a specialist.” T1 85/24-25, 86/1-2. And again: “….I thought

that specializing means getting better in an area. I have a portion of my

practice in that area and I’m trying to become better. I’m specializing. That’s

what I meant.” T1 86/7-11. “I was trying to say that I was---a part that I’m

12

developing. It’s an area of the law that I am specializing or planning to

become one day a specialist… .” T1 117/17-19.

As the record clearly shows, Respondent corrected the misuse of the

verb “specialize” in moments: “Frankly, at the moment I did not even see

the connection. I’m just answering as truthfully as I can answer. Do you

specialize? I say yes. Are you board certified? No, I’m not...” T1 119/18-21.

The Bar complaint did not even allege “intent” to commit the

violations stemming from the second count. The record lacks evidence to

support the referee’s findings regarding Respondent’s intent to mislead the

trial judge, engage in conduct of fraud and deceit and falsely advertise to the

judge that she is “a specialist.”

B. Erroneous Violation of Rule 4-8.4(c);

The referee’s finding of guilt is clearly erroneous and not supported

by the record. “In order to find that an attorney acted with dishonesty,

misrepresentation, deceit, or fraud, the Bar must show the necessary element

of intent.” Florida Bar v. Lanford, 691 So.2d 480, 481 (Fla. 1997).

This Court had defined intent by distinguishing it from gross

negligence and sloppy accounting methods. Florida Bar v. Neu, 597 So.2d

266 (Fla. 1992); Florida Bar v. Burke, 578 So. 2d 1099 (Fla. 1991); See also

Florida Bar v. Dougherty, 541 So. 2d 610 (Fla. 1989); Florida Bar v.

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=QUtsCsWTSB%2fOqVgHtX31MR6ndd7AH1EBgHLM4GulehF%2f3M9RSRZ4rqhEle%2bA1s4p%2biFGo9Ilvm%2fJPJs7rj9DUcg%2bw0wG1k1e2mU%2bGnypXgBz8idwHcUt2RCnLswIRRwd&ECF=Florida+Bar+v.+Lanford%2c+691+So.2d+480%2c+481+%28Fla.+1997%29�

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=QUtsCsWTSB%2fOqVgHtX31MR6ndd7AH1EBgHLM4GulehF%2f3M9RSRZ4rqhEle%2bA1s4p%2biFGo9Ilvm%2fJPJs7rj9DUcg%2bw0wG1k1e2mU%2bGnypXgBz8idwHcUt2RCnLswIRRwd&ECF=Florida+Bar+v.+Neu%2c+597+So.2d+266+%28Fla.+1992%29�

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=QUtsCsWTSB%2fOqVgHtX31MR6ndd7AH1EBgHLM4GulehF%2f3M9RSRZ4rqhEle%2bA1s4p%2biFGo9Ilvm%2fJPJs7rj9DUcg%2bw0wG1k1e2mU%2bGnypXgBz8idwHcUt2RCnLswIRRwd&ECF=Florida+Bar+v.+Neu%2c+597+So.2d+266+%28Fla.+1992%29�

13

Limley, 517 So. 2d 13 (Fla. 1987) (attorney Burke’s extremely sloppy

accounting procedures resulted in gross negligence while handling the trust

account but this Court refused to equate gross negligence and intent;

attorney Neu misappropriated $52,604.99 of his clients trust funds due to

gross negligence but without intent to convert the trust funds, this Court did

not find violation of R. 4.8-4(c) Regulating Fla. Bar).

This Court has further explained that for the purpose of proving intent

the main issue is whether the attorney’s conduct was deliberate and

knowing. Florida Bar v. Brown, 905 So. 2d 76, 81 (Fla. 2005); Florida Bar

v. Cramer, 643 So.2d 1069, 1070 (Fla. 1994); Florida Bar v. Barley, 831 So.

2d 163 (Fla. 2002). This Court has consistently found violation of R. 3.8-

4(c) Regulating Fla. Bar when the attorney acted knowingly and deliberately

(attorney Brown knowingly and intentionally converted his client’s

certificate of deposit to the use of attorney’s law firm and the client suffered

a considerable financial loss; attorney Cramer intentionally and knowingly

deposited legal fees in his trust account to avoid garnishment by the IRS and

then paid his operating and personal expenses from the same trust account;

attorney Barley continuously manipulated his client into allowing

$76,760.68 of the client’s monies to remain in the attorney’s custody). Id.

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=QUtsCsWTSB%2fOqVgHtX31MR6ndd7AH1EBgHLM4GulehF%2f3M9RSRZ4rqhEle%2bA1s4p%2biFGo9Ilvm%2fJPJs7rj9DUcg%2bw0wG1k1e2mU%2bGnypXgBz8idwHcUt2RCnLswIRRwd&ECF=Florida+Bar+v.+Cramer%2c+643+So.2d+1069%2c+1070+%28Fla.+1994%29�



14

The question here is whether under the facts of the instant case,

Respondent engaged in deliberate and knowing conduct of fraud, deceit,

false statement, or misrepresentation. At the final hearing on vacating Mr.

Childs’ second fraudulent annulment, Mr. Whitehead, the husband’s

attorney who had filed and defended two fraudulent annulments on behalf of

his client, inquired about Respondent’s professional fees. Within moments

of the misuse of the word “specialize,” Respondent explained to the judge

she is not an expert or specialist in family law. The record clearly reveals

that Respondent did not knowingly misuse “specialize” with the intent to

mislead the judge by making him believe that she was an expert. Throughout

the final hearing, Respondent explained that at the time she did not equate

the process of “specializing,” or becoming an expert, with the end result of

being a specialist or an expert. Even at the hearing before the grievance

committee, when Respondent was extensively interrogated on the issue of

specialization without any knowledge about the pending second count,

Respondent explained that she believes that “specialize” means to improve

continuously. EB6 69/15-16, 68-70.

If gross negligence or sloppy accounting procedures, which resulted in

grave violations of the rules governing trust accounts, do not equate intent,

how would the non-deliberate, ignorant misuse of a word, corrected within

15

moments of its uttering, show intent? The referee erred in finding

Respondent guilty of violating rule R. 4.8-4(c) Regulating Fla. Bar when the

Bar failed to prove the necessary element of intent by clear and convincing

evidence. The referee’s report included only partial and incomplete version

of the evidence at hand and failed to cite any legal authority, which would

sustain the referee’s position under the facts here.

C. Erroneous Violation of Rule 4-3.3(a)(1);

The misspoken word did not violate Rule 4.3-3(a)(1) because

Respondent did not intend to make a false statement to a tribunal—

Respondent corrected the misuse within moments. No allegation or finding

of intent was ever made.

D. Erroneous Violation of Rule 4-7.2(c)(6)(a).

Respondent’s misuse of the verb “specialize” during a court hearing

does not violate 4-7.2(c)(6)(a) R. Regulating Fla. Bar because it was not

used for advertising and it was corrected within moments of its uttering. This

court has sanctioned an attorney for using the word “specialize” in a letter

sent to prospective clients—attorney Herrick never corrected or clarified the

meaning of the verb “specialize” but rather argued that “specialize” and

“specialist” carry different connotations. Florida Bar v. Herrick, 571 So. 2d

1303 (Fla. 1991).

16

IV. The Referee’s Erroneous Factual Findings on the Email Not Sent

for the Sole Purpose of Gaining an Advantage in a Future Civil Matter

and Erroneous Conclusions on Violations of Rules 4-3.4(g), 4-8.4(a) and

4-8.4(d) Through Same Email

A. Erroneous Factual Findings;

A referee’s factual findings must be sufficient under the applicable

rules to support the recommendations as to guilt. Fla. Bar v. Shoureas, 913

So. 2d 554, 557-58 (Fla. 2005).

The record of the proceedings reveals two extremely differing

accounts of the events that gave rise to the email at issue. These

contradictory accounts provided for different answers to the following

questions: 1) When was the email sent? 2) What did the email refer to? Was

it about a settlement offer in a vacated annulment or a direct response to an

offensive offer for alimony in a future divorce case? 3) Why was it sent?

Was it sent with the sole purpose to gain an advantage in the vacated

annulment or was it a response to the continuous pressure exerted upon

Respondent to revive the vacated, untenable annulment? Follows a summary

of the events and circumstances surrounding the email:

Mrs. Childs, a college graduate, who had independently come to the

U.S. on a cultural exchange, met Mr. Childs, her manager, at the workplace.

17

T2 250/15-23, 251/8-16, EB4, A6. Following a 16-month long acquaintance

and a passionate romance, Mr. and Mrs. Childs got married at a beautiful

ceremony amidst family and friends. Id. During the marriage, the parties

consummated the marriage on multiple occasions, lived together at various

locations, filed income tax returns together, opened and maintained joint

accounts and insurance policies, jointly owned vehicles, took multiple

photographs memorializing their loving relationship and held themselves as

husband and wife to their families, friends, the world at large, the Internal

Revenue Service, and the United States Citizenship and Immigration

Services (hereinafter USCIS). Mrs. Childs obtained her provisional green

card through this marriage. Id., ER1.

On or about February 9, 2007, Mr. Childs, through attorney Scott

Whitehead, filed a complaint for annulment alleging that Mr. and Mrs.

Childs’ marriage had been a sham marriage entered into by fraud of

inducement and with the sole purpose of obtaining immigration benefits for

Mrs. Childs. ER1. Mr. Childs made special efforts to contact the deportation

unit of the USCIS to report the alleged fraudulent marriage. Id. The Board of

Immigration Appeals and federal courts have held that a statement by a

spouse affirmatively stating that a marriage was entered into for the purpose

of evading immigration law is considered sufficient evidence to prove fraud

18

upon the federal government and warrant felony conviction of the U.S.

citizen and up to five (5) years in federal prison. Oddo v. Reno, 17 F. Supp.

2d 529, 532 (E.D. Va. 1998); Al-Kilani v. Barr, 1992 US Dist. LEXIS 5974,

*3 (N.D.Ca. 1992); Matter of Kahy, 19 I&N Dec. 803, 805 (BIA 1988). If a

foreigner, on the other hand, is found to have used fraudulent marriage to

gain U.S. permanent residence, the foreigner will be permanently deported:

all subsequent visa petitions on behalf of that person must be denied. INA

§204(c)(1).4

Mr. Childs’ plan to annul his marriage and permanently deport his

wife was precluded by Florida law on annulment: under Florida law Mr.

Childs’s Complaint for Annulment simply could not stand. Mr. Childs

complaint for annulment made the untenable proposition that Mrs. Childs

committed fraud by inducement when she told him that she loved him when

Mr. Childs effectively called the USCIS to revoke the petition

on behalf of his wife and to have her permanently deported. T2/152-153.

Had Mr. Childs called the appropriate division of USCIS, Mrs. Childs would

have been arrested and detained when she entered the U.S. on a later date.

4 Pursuant to INA §204(c)(1), no subsequent visa petition on behalf of that individual may be ever approved. There is no room for discretion in this draconian aspect of the law. If the first petition is revoked because of suspected marriage fraud, all subsequent petitions must be summarily denied. Individuals, like Mrs. Childs, even if subsequently married to another U.S. citizen or petitioned by a U.S. company, would never be eligible to apply for a green card again.

19

she did not. A1. This allegation, even if true, does not constitute fraud by

inducement. Then, even if it did constitute fraud, a Florida marriage that has

been consummated cannot be annulled for fraud. Rubenstein v. Rubenstein,

46 S 2d 602 (Fla. 1950); Savini v. Savini, 58 So. 2d 193 (Fla. 1952).

In addition to the complete lack of any justifiable substantive basis for

annulment, Mr. Childs and attorney Whitehead failed to comply with any of

the procedural requirements of constructive service. Constructive service of

process is improper even when actual, specifically described, diligent search

was performed if where there were insufficient reasonable efforts to effect

personal service. DeVico v. Chase Manhattan Bank, 823 So. 2d 175 (Fla 3d

DCA 2002). Mr. Childs and attorney Whitehead never attempted to effect

personal service here: there was no summons issued in the any of the

annulment cases. EB2, EB4, EB5.

In addition, Mr. Childs chose to use constructive service to notify

Mrs. Childs of the impending annulment of her marriage but failed to

comply with the strict provisions of the Florida Statutes. EB2. First, Mr.

Childs filed his personally produced Affidavit of Diligent Search just about

3 (three) DAYS after his wife had allegedly abandoned him.5

5 Even at the hearing before the referee, Mr. Childs and his attorney did not have consistent account of how Mrs. Childs allegedly left the marriage. According to Mr. Childs, she simply vanished in thin air one evening

This fact in

20

itself renders Mr. Childs’ claim that he has diligently sought the

whereabouts of his wife incredible. Id. Second, Mr. Childs had perfect

knowledge that he and Mrs. Childs had moved to his mother’s residence

several weeks prior to February 6, 2007: thus, Mrs. Childs’ last known

residence was at his mother’s address rather than at the rental place address.

EB4, ER1, A5, A6. Third, Mr. Childs knew his wife’s address and telephone

in Bulgaria. Id. He also knew at all times her email address but never made

an effort to reach her by email. ER1 (exhibit with emails), A8. Fourth, Mr.

Childs knew the contact information of his in-laws and had exchanged

numerous emails with his wife’s only sister: thus, there was a known person

to Mr. Childs, his sister-in-law, whom he could have contacted to inquire

about the whereabouts of his wife. ER1, A5, A6. Even worse, Mr. Childs

was fully aware of his wife’s efforts to reach him and talk to him because he

would not pick up the phone when seeing her number on the caller id or

would hang up the phone after hearing her voice when she called from a

different number. Id.

Furthermore, instead of filing his Affidavit of Diligent Search in the

format set by this Court, Mr. Childs and his attorney chose a free-style

whereas attorney Whitehead maintained that Mr. Childs put Mrs. Childs on a bus to Atlanta one morning. T2 152/8, T2 166/9-14, T2 170/19, T2 180/2-4, T2 198/ 18-22. Please see also EB4, A6.

21

format thus avoiding specific description of the diligent efforts made to

locate Mrs. Childs. EB4, A2. Mr. Childs’ affidavit was not only false but

also prima facie deficient because it did not contain the facts showing that

specific search and inquiry were completed. Hobe Sound Indus. Park, Inc. v.

First Union Nat. Bank, 594 So 2d 334 (Fla. 4th DCA 1992). Mr. Childs’

blanket statement that “he has made a diligent search and inquiry to discover

the residence” does not comply with the statutory requirements of

constructive service. Floyd v. Federal Nat’l Mortgage Ass’n, 704 So. 2d

1110 (Fla. 5th DCA 1998).

In addition to the untenable Complaint for Annulment and the

perjured, prima facie deficient Affidavit of Diligent Search, Mr. Childs

published a prima facie deficient Notice of Action. EB4, A3. Pursuant to

Florida Statutes, a Notice of Action used for constructive service must be

published once a week during 4 (four) consecutive weeks. § 49.10 Fla. Stat.

(2008). In clear violation of statutory provisions, Mr. Childs published the

Notice of Action only twice in the local Daily News. EB4, ER1.

Mr. Childs then obtained a final judgment of annulment, which stated

that “the sham marriage … is voidable and dissolved.” A3-4. Thus, the

parties’ marriage was annulled based on factually false and legally untenable

allegations and by means of a perjured, prima facie deficient, affidavit of

22

diligent search, prima facie deficient constructive notice and without

summons. A2-4.

On July 5, 2007, Respondent filed a motion to vacate the fraudulent

annulment of Mr. and Mrs. Childs’ marriage and presented an overwhelming

amount of evidence showing that Mr. Childs and attorney Whitehead had

perpetrated fraud upon the court. ER1, A5-6. At the first hearing, the court

granted Respondent’s motion and vacated the annulment. The order plainly

stated: “The annulment of the marriage is hereby vacated.” EB7, A7.

On October 25, 2007, attorney Whitehead filed a frivolous Motion for

Clarification arguing that the untenable complaint for annulment must stand.

T2 200/16-25, 201/1-7. In the following months, Mr. Childs and his attorney

engaged in a relentless campaign to pressure Respondent and Mrs. Childs to

somehow revive the vacated fraudulent annulment and convert it into

uncontested divorce. T2 202/ 19-25, 203, 204/1-2. Attorney Whitehead

began calling Respondent and Respondent’s client directly to pressure them

to agree to reopen the vacated annulment and to file a counter-petition for

divorce. 6

6 Attorney Whitehead began to call Mrs. Childs, a represented party, leaving her disparaging voice messages and threatening her with another annulment if she did not immediately travel from the State of Illinois to appear for a non-existent hearing at the Okaloosa County Courthouse. EB4.

T2 202-203. As Mr. Whitehead explained, he also sent various

emails and letters regarding the aspired conversion of the vacated annulment

23

into uncontested divorce: “And I'm just saying, well, you know – you know,

why don't we just handle this action as a divorce, we'll give you $2,000 lump

sum alimony and we’ll each go our separate ways.” T2 203/10-13. In direct

response to this pressure, Respondent sent the email at issue on February 6,

2008 regarding the future alimony offer in a future divorce case; the email

was sent in-between both fraudulent annulments, after the first fraudulent

annulment was vacated and before Mr. Childs obtained the second

fraudulent annulment. The email reflected Respondent’s belief that a vacated

annulment cannot be converted into uncontested divorce, that Mr. Childs is

free to file for divorce and that once he does so he would still have to take

into consideration all the suffering he has caused to his wife. T1 54/ 23-25,

55/ 1-4, 56/ 4-20. At that future point, Mr. Childs may choose to follow path

A and settle his divorce with Mrs. Childs or choose to follow path B and

embroil himself in contested divorce proceedings, which would push to the

front scene Mr. Childs’ perjury, fraud and extortion. T1 54/8-22, T2 213/ 7-

12, EB4, EB7, ER1, A5-7, EB2 22/16-20.

On April 21, 2008, the court held a hearing on Mr. Childs’ frivolous

motion for clarification. In the midst of confusion, the court verbally ordered

Mrs. Childs to file an answer to the vacated annulment within twenty (20)

days but subsequently vacated that same verbal pronouncement. EB4-5,

24

A10. On April 22, 2008, Respondent faxed an objection to the proposed

Order by Mr. Whitehead. EB4, A8. On the same day, Judge Heflin sua

sponte recused from the case. EB4-5, A9.

On May 28, 2008, after being served with Judge Heflin’s Order

Vacating and Withdrawing the Verbal Pronouncement entered on April 21,

2008 and with full knowledge of the latter, Mr. Childs and his attorney

submitted again the old proposed Order to the attention of the new trial

judge. EB4, A11. It appears that someone stamped the name of Judge

Remington on the line bearing the name of Judge Heflin and entered the

Order: the Order gave Appellant 20 days to answer to the vacated

annulment. Id. The Order also referred to a hearing held on May 28, 2008,

the actual date of the Order. Id. Such hearing never occurred and the docket

lacks any reference to such hearing. This Order was never served on Mrs.

Childs. As Judge Remington explained later, the order was erroneous and

unintended: “Well, I had no idea of what I was signing. You just sent me

something and I signed it. Had I known then what I know now I wouldn’t

have signed it. The parties are married.” EB2 6/18-21, EB4.

On June 20, 2008, Mr. Childs and attorney Whitehead filed again for

default on their vacated annulment case but the clerk denied the motion.

EB4. On June 27, 2008, and without a motion for final judgment by default,

25

Mr. Childs managed to obtain once again a final judgment of annulment by

default. EB5, A12. Apparently, the February 6, 2008 email had not deterred

Mr. Childs to file and obtain a second fraudulent annulment of the same

vacated annulment case.

On July 22, 2008, Respondent filed a Second Motion to Vacate

Annulment of Marriage Based on Fraud together with motion for sanctions

and for transfer of perjury to the State Attorney’s Office. EB4, A13-14.

During the hearing, Respondent was deposed on the issue of attorney’s fees

and costs. Respondent’s professional fees, excluding court costs or fees

earned to attend the final hearing, amounted to more than $18,000.00

(eighteen thousand) for work, which involved setting aside two fraudulent

annulments while forced to respond to numerous frivolous pleadings,

motions, and discovery demands.7

Contrary to all documentary evidence and without any factual

support,

8

7 Respondent also had to deal with difficulties triggered by her being a foreign-born attorney and an outsider in a small town located more than 500 miles from her main practice. 8 Mr. Whitehead did not bring any statutes or case law that would justify, at least in theory, the fraudulent annulments. T2 179/1-12, 181/15-25.

Mr. Whitehead provided the following explanation of the

underlying proceedings during his direct examination by Bar counsel: “A:

Yes, ma’am. And based—fraud’s reason for annulment or concealment’s

26

reason for annulment, also. … Q: Once you were—so you were going

forward and you ultimately obtained a default judgment?9 A: Yes, ma’am. I

received two default judgments. Q: And before you did that, you made an

effort to serve Mrs. Childs?10

Attorney Whitehead also testified under oath that after Judge Heflin

gave to Respondent’s client 20 days to respond, Mr. Childs filed another

annulment action, went back in front of the judge and had Mrs. Childs

defaulted for the second time: “So he filed another annulment action, which

A: Yes, ma’am, but there was something

wrong with the summons, so we had a short hearing on it.” T2 182/ 1-2. Mr.

Whitehead’s perpetual failure to ever attempt the issuance, and much less

the service, of any summons speaks louder than his words.

Mr. Whitehead freely continued his misrepresentations to the referee:

“And it was in front of Judge Heflin and he and Ms. Knowles got into a

heated conversation and he vacated my default and withdrew from the case.”

T2 182/ 3-5. It appears from Mr. Whitehead’s testimony that the vacation of

the first annulment and the recusal of the first judge happened at the same

time and place, during the same hearing. In fact, Judge Heflin vacated the

annulment on October 2, 2007 and sua sponte recused from the case on

April 22, 2008, or more than seven (7) months later. EB7, A7, EB4, A8.

9 Leading question during direct examination. 10 Leading question during direct examination.

27

I believe she was served. And then we went back in front of --- and she was

defaulted again on the second time.” T2 184/ 3-6. First, Judge Heflin did not

sign the order on the second annulment of the parties’ marriage. In addition,

and putting aside the issue that it makes no sense to give 20 days to respond

to an action, which is to be filed after the hearing, the record clearly shows

that Mr. Childs never filed a second petition for annulment. In fact, Mrs.

Childs was never served with the non-existent second petition for

annulment. After having failed in his “negotiations” with Respondent to

resurrect the vacated annulment, Mr. Whitehead knowingly used a vacated

verbal court order, Judge Heflin’s vacated verbal announcement from April

21, 2008, to revive the vacated annulment and obtain a second default on the

already vacated annulment. EB4, EB5, A10-12.

Attorney’s Whitehead’s misrepresentation of the unfolding course of

the subsequent underlying events continued: “And then [after the second

default] we had a hearing and I filed a motion for clarification.” T2 184/ 6-7.

In fact, Mr. Whitehead filed his frivolous motion for clarification after the

first vacated annulment, not after the second default, and did so with the sole

purpose to somehow revive the vacated annulment. Mr. Whitehead

continued to insist that after an annulment is vacated it somehow remained

alive even if the complaint for annulment was untenable from its inception.

28

T 201/ 1-511

Clearly, the court acknowledged that Mr. Childs and his attorney

submitted numerous frivolous filings, including the frivolous motion for

clarification, while relentlessly trying to annul a marriage that cannot be

. Indeed, according to Mr. Whitehead, the judge, after showing

his state of mind of perceiving the wife as a mail-order bride and being

angry with the husband, vacated solely because the marriage was

consummated. T2 217/12-17. Judge Remington appears to have had a

different explanation of his own decision: “The Court: Your client …

basically got a mail-order bride from Bulgaria, and then tried to get rid of

her as cheap as possible.” EB 2 15/2-5. Furthermore: “The Court: And what

do you propose would be a reasonable fee for all of this effort that you put

into motion? Mr. Whitehead: For the effort that I put in motion? The Court:

Yes, sir. Had you just filed a simple Dissolution of Marriage and properly

served her, we wouldn’t be going through all of this.” EB2 16/ 18-25. And

on its reasoning behind the vacation of the second annulment, the Court

clearly stated: “The Court: If it’s a sham marriage then your client

committed a felony… So you don’t even want to go there. You don’t want

that on the record.” EB 2/16-20 (highlighting, underlining added).

11 “A: My interpretation of vacate means that the case was still open because the judge did not dismiss it.” T2 201/ 1-5. The trial court once again had a different explanation: “Well, once it is vacated, it no longer existed.” EB2 9/23-25.

29

annulled. In-between the two fraudulent annulments, Mr. Childs and his

attorney fully engaged in bullheaded “negotiations” with Respondent and

her client about an impossible revival of the vacated annulment and its

conversion into uncontested divorce. When these “negotiations” to resurrect

the vacated annulment failed, Mr. Childs and his attorney simply made up a

procedure to annul the same marriage yet once again.12 EB4, EB5, A 10-12.

Then, they pulled out the February 6, 2008 email13

There were two differing factual accounts as to the events, which

triggered Respondent’s email and which shed light on the intent and purpose

of the same email. The referee did not discuss those differing account, did

not resolve conflicts in the evidence or present specific factual findings. She

simply adopted Mr. Whitehead’s testimony on its face value. Mr. Whitehead

did not appear as an expert and failed to produce any evidence to support his

explanation of the circumstances surrounding the email. T2 179/1-12, 181/5-

25. At the same time, the Referee dismissed clear and convincing

documentary evidence, such as the court records of the underlying

and focused on derailing

Respondent from her work on vacating the second fraudulent annulment.

12 Even at the final hearing on the vacation of the second fraudulent annulment, Mr. Whitehead continued to insist that his frivolous motion for clarification stand and the annulment be revived. EB2 6-7, 9/2-22. 13 Mr. Childs also tried to use the email to avoid compliance with the court order directing him to pay to Respondent $12,000.00 in attorney’s fees. A26.

30

proceedings as well as the transcript of the vacation of the second fraudulent

annulment, which clearly contradicted Mr. Whitehead’s account of the

events. EB2, EB4, EB5, EB7.

Clearly, the annulment of Mr. and Mrs. Childs was an impossible and

unlawful proposition. Respondent did not send the email at issue to solely

gain an advantage in a civil matter where Respondent’s client was the prima

facie prevailing party at all times. Furthermore, Respondent’s email could

not have been sent with the intent to solely gain an advantage during the

litigation of the annulment when the email was sent after the first vacated

annulment and before the initiation of the second fraudulent annulment. The

referee’s finding that the email was sent during the litigation of the

annulment with the sole purpose to gain an advantage in the settlement of an

already vacated annulment lacks evidentiary basis.

B. Erroneous Conclusion of Violation of Rule 4-3.4(g);

The question here is whether the email sent by Respondent to

opposing counsel in-between two fraudulent annulments, each one

subsequently vacated, was generated and submitted to “solely to gain an

advantage in a civil matter.” R. Regulating Fla. Bar 4-3.4(g).

In making her conclusion, the referee relied on several cases, which

are factually distinctive from the present case. Florida Bar v. Flynn, 512 So.

31

2d 180 (Fla. 1987); Florida Bar v. Krasnove, 487 So. 2d 1072 (Fla. 1986);

Florida Bar v. Suprina, 484 So. 2d 1245 (Fla. 1986). In all of these cases, the

purpose of the improper communication was to gain an advantage in an

ongoing case: attorney Flynn threatened the trial judge to sue him in federal

court if the judge did not withdraw his findings of professional misconduct;

attorney Krasnove threatened the wife, her parent and her attorney that he

would implicate them in the husband’s alleged criminal activity to obtain a

divorce settlement; attorney Suprina threatened the opposing side with jail to

achieve satisfaction of mortgage. Id.

Respondent sent the email at issue on February 6, 2008 in direct

response to an email received from opposing counsel on the same date,

which offered to the wife lump sum alimony in the amount of $2,000.00

(two thousand) if she would reopen the vacated annulment and convert it

into a non-contested divorce. Thus, the email was not sent during the

litigation of the vacated annulment but it was a direct response to a lump

alimony offer for a future divorce action.14

14 Several months later, the husband annulled again the same already vacated marriage. The trial court vacated the second annulment as well. The husband ultimately filed for divorce on August 3, 2009, almost 18 (eighteen) months later. App.

32

Furthermore, pursuant to Florida law and under the facts of the

annulment cases, both annulments had to be prima facie vacated.

Respondent needed not threaten the husband with criminal charges to vacate

the first annulment. In addition, the complainant criminal wrongdoing was

an essential part of Respondent’s vacation of the first annulment. ER1, A5-6.

Long before the email at issue, Respondent’s fraud, perjury and extortion

comprised Respondent’s first pleading with the trial court. Id.

The referee erroneously concluded that the email at issue was sent

with the sole purpose to achieve settlement in the vacated annulment.

C. Erroneous Violation of Rule 4-8.4(a);

The referee made no findings and cited no legal authority in support

of her conclusion that Respondent has violated Rule 4-8.4(a). In fact, The

Bar cited the case of Dubow to stand for the proposition that ignorance of

the Rules Regulating the Florida Bar does not operate as an excuse of rule

violations. Florida Bar v. Dubow, 636 So. 2d 1287 (Fla. 1994). If

Respondent was ignorant about the violated rules how would she also

knowingly violate the same rules? The referee’s conclusion that Respondent

violated Rule 4-8.4(a) lacks support in the record and in case law.

33

D. Erroneous Violation of Rule 4-8.4(d).

The referee made no findings that the email had subverted past or

future judicial proceedings in any manner or that it had undermined public

confidence in our justice system or in our notions of equality. Therefore, the

conclusion that the email had been prejudicial to the administration of justice

was erroneous. Furthermore, if the misused word affected the proceedings,

the result was beneficial to the complaining witness because the attorney’s

fees were reduced by more than 33%.

V. Improper Recommended Sanction of Public Reprimand While

Taking Into Account Unrelated Diversion Before the Close of Evidence

and Failing to Consider Multiple Mitigating Circumstances and Lack of

Injury to the Claimant

It is this Court’s ultimate responsibility to order the appropriate

sanction. Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also

Fla. Bar v. Springer, 873 So. 2d 317, 321 (Fla. 2004); art. V, § 15, Fla.

Const. In general, the referee’s recommended discipline is approved when it

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

Imposing Lawyer Sanctions. See Fla. Bar v. Brown, 905 So. 2d 76, 83-84

(Fla. 2005); Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).

34

A. Improper Consideration of Diversion as Discipline Before the Close

of Evidence and Before Finding of Guilt;

Apart from the fact that diversion is not a disciplinary sanction,

evidence about diversion cannot be admitted before the close of evidence

and before the finding of guilt. R. Regulating Fla. Bar 3-5.3(i), 3-5.3(h)(2).

In the middle of the hearing, before the close of evidence and before

finding of guilt, Bar counsel submitted to the referee an Affidavit, which

attested that Respondent had participated in a diversion program. “And I

have an order of prior discipline in this matter... This is an affidavit of prior

discipline that is offered by Holly Carullo… .” T2 239-241. At the same

time, the affidavit submitted by Bar counsel attested that “and she

[Respondent] has no prior disciplinary history.” T2 240. In her closing

statement, Bar counsel herself confirmed that Respondent had no prior

discipline. T2 299/ 8-9.

The referee abused her discretion when she admitted into evidence

Respondent’s non-disciplinary diversion and did so prior to the close of

evidence and prior to finding of guilt. Clearly, the introduction of the

affidavit on diversion in the midst of the proceedings was prejudicial to

Respondent—subsequently, the referee concluded that Respondent had

35

exhibited “continued lack of understanding of the Rules Regulating the

Florida Bar.” RR6.

B. Mitigating Factors;

A sanction under the Standards is subject to aggravating and

mitigating circumstances. See Fla. Stds. Imposing Law. Sancs. 9.0; See, e.g.,

Fla. Bar v. Spear, 887 So. 2d 1242, 1247 (Fla. 2004); Fla. Bar v. Barley, 831

So. 2d 163, 170 (Fla. 2002); Fla. Bar v. Bustamante, 662 So. 2d 687, 689

(Fla. 1995).

In her report, the referee did not find any mitigating factors although

the record readily reveals multiple mitigating factors. The following factors

mitigate in favor of Respondent: 1) good character and reputation; 2)

inexperience in the practice of law; 3) absence of a prior disciplinary record;

4) absence of dishonest or selfish motive; 4) remorse; 5) full or free

disclosure to disciplinary board and cooperative attitude toward; 6) personal

or emotional problems—solo practitioner/ single mom; discrimination based

on language and ethnicity; attitude of opposing party and opposing counsel.

Fla. Stds. Imposing Law. Sancs. 9.32 (g), (f), (a), (b), (l), (e), (c).

Several character witnesses traveled long distances to testify on behalf

of Respondent while others appeared by phone from other states. These are

their testimonies: Dr. Gallo: “She is a very hard-working, decent person that

36

we’ve always found to actually quite honest and noble-minded…” T2 229/

13-15, see also T2 231/ 11-15, 234/4-6.; Pastora Rachel: “She is very helpful

person and she is a very warm person, she loves people… She is a very

stable person…”T 223/9-11, 224/17-19, see also T 222/8-13, 223/24-25; Dr.

Vernon: “She’s a very, very high quality character…. I think that she’s a

very honest, hard-working individual.” T 266/13-15; Prof. Driessen: “Petia

is an extremely intelligent, extremely diligent individual. I know her to be

conscientious. I know her to be honest. I know her to be someone who is

keenly affected by a sense of justice, sense of right and wrong. So I know

her to be someone who always wants to try to do the right thing.” T2 276/

10-15.

At all pertinent times, Respondent was a solo practitioner with

multiple family obligations as a single mom raising a teenage son.T1 36-37.

At all pertinent times, Respondent was, and still is, a female, foreign-born

attorney who speaks English with a foreign accent. T1 51-53. Throughout

the proceedings in Okaloosa County, Respondent and her client15

15 Respondent’s client, although a college graduate who had come to the United States on her own, had been consistently categorized as a mail-bride in search of a green card. T2 250/ 15-23, EB2 –ct-,

continuously felt discriminated against based on their language and

ethnicity. T2 257/6-8. Respondent had been categorized as belonging to an

37

ethnic group, whose customs include living with up to 20 other people “piled

up in a house” because that is what “they’re used to.” T2 149/ 14-21,

199/12-14.

Inexperience in the practice of law, readily discernible from the

record, is another mitigating factor. At the time of writing the email,

Respondent had been practicing approximately two and half (2.5) years. T1

36-37. In addition, Respondent has not been disciplined in the past. I29.

Furthermore, Respondent freely and fully disclosed any and all

pertinent materials and remained cooperative with the investigation at all

times. She sent a timely answer, submitted a written response with multiple

attachments to the grievance committee, and attended alone a long hearing

before the grievance committee, where she was thoroughly examined on the

issue of “specialization,” while completely unaware of the purpose of that

inquiry. EB6 68-71. In fact, Bar counsel constructed the second count solely

with the materials provided by Respondent in her defense. T1 18/9-18.

Respondent’s client, whose husband was trying to deport her after

placing her for some time in an immigration jail, was in an extremely

vulnerable position, exacerbated by medical problems and lack of financial

recourses. EB4, A9. Mrs. Childs paid to Respondent $1,300 (one thousand

and three hundred) to initiate a seemingly simple vacation of a prima facie

38

untenable annulment, which quickly evolved into an ongoing nightmare.

Respondent and her client continuously clashed against walls of obstacles

erected by opposing counsel who relentlessly pursued litigation of the

untenable annulment by means of perjured pleadings, falsified documents,

and deceptive strategies. Respondent had apologized to the complainant

several times for any misperceptions inadvertently created during the

protracted proceedings. T1 75/ 24-25, 76/ 1-7; 64/ 18-24.

Respondent’s email, sent in direct response to the opposing side’s

campaign to convert the vacated annulment into a non-contested divorce,

was not conceived or transmitted with selfish or dishonest motive:

Respondent would not receive any portion of the wife’s future alimony in a

future divorce case. T1 54-56, 61, 71, 76, 103/105.

The referee’s report does not contain any aggravating factors either.

The referee did admonish Respondent for her “failure to grasp the

seriousness of her misconduct” and “continued lack of understanding” of the

rules based on Respondent’s prior diversion as well as Respondent’ foreign

native language and culture. RR5-6, T2 318, 24-25.

The referee erred in failing to consider multiple mitigating factors,

which were clearly discernible from the record.

39

C. Sanction: Public Reprimand.

This Court has held, repeatedly, that bar discipline serves the

following purposes: the sanction imposed must be fair to society and to the

disciplined attorney and it must deter other attorneys from similar

misconduct. Further, the sanction must have a reasonable basis in existing

case law and should be supported by The Rules Regulating the Florida Bar

and The Florida Standards for Imposing Lawyer Sanctions. Minor

misconduct is the only type of misconduct for which a private reprimand is

appropriate. R. Regulating Fla. Bar 3-5.1(b)(1)(B). A lawyer’s misconduct

shall not be regarded as minor misconduct if “the misconduct resulted in or

is likely to result in actual prejudice (loss of money, legal rights, or valuable

property rights) to a client or other person.” Id. Admonishment is a proper

sanction when the attorney’s violation of a duty owed as a professional

causes “little or no actual or potential injury to a client, the public, or the

legal system” while “[p]ublic reprimand is appropriate when a lawyer

negligently 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.” Fla. Stds. Imposing Law. Sancs. 7.0, 7.3-7.4.

Respondent’s email sent to opposing counsel in response to an offer

for lump sum alimony in a future divorce case did not cause any actual or

40

potential injury to any of the parties involved.16

16 The fact that Mr. Childs had to pay to attorney Whitehead for two fraudulent, untenable annulments, each one subsequently vacated does not translate into injury caused by the email. T2 159-161.

It did not affect the legal

proceedings in any way. In fact, it did not deter the complainant from

executing a second fraudulent annulment of the same marriage less than four

(4) months after the email. It appears that the email benefited the

complainant as any inquiries into his wrongdoing have been effectively

silenced. The email was not publicized or advertised in any way and the

general public was not affected by its transmission.

Similarly, Respondent’s misuse of the verb “specialize” did not cause

actual or potential injury to any of the parties involved. It did not affect the

trial proceedings. If anything, it benefited the complainant because the trial

judge diminished by 1/3 the amount of requested sanction attorney fees. The

verb was not used in any advertisement or solicitation and did not cause

actual or potential injury to the public.

The referee erred in recommending public reprimand while taking

into consideration Respondent’s non-disciplinary diversion before the close

of evidence and before finding of guilt while disregarding multiple

mitigating circumstances and dismissing the lack of any actual or potential

prejudice or injury to the complainant, the legal process, or the public.

41

VI. The Referee Erred in Finding the Florida Bar Costs Reasonable and

Necessary.

Rule 3-7.6(o)(3) Regulating the Florida Bar allows the referee to

“assess the bar’s costs against the respondent unless it is shown that the costs

of the bar were unnecessary, excessive, or improperly authenticated.” Id.

“Final discretionary authority to assess costs in attorney disciplinary

proceedings rests with this Court.” Florida Bar re Walter Benton Dunagan,

775 S. 2d 959, 962 (Fla. 2000).

At the final hearing and before the close of evidence here, Bar counsel

attempted to introduce a complete Affidavit of Fees and Costs. T2, p. 241-

42. Despite Respondent’s objections to the costs, The Bar has not submitted

any substantial and competent evidence in support of the costs. Respondent

believes that the following costs are unreasonable, unnecessary or

improperly authenticated: 1) witness fees travel costs; 2) Bar counsel travel

costs; 3) investigative costs; 4) court reporter/ grievance committee. See

Rule 3-7.6(q)(3).

Albeit unnecessary by her own words, Bar counsel invited Mr. Childs

and Mr. Whitehead to travel to Palm Beach County to testify against

Respondent. T1 30/22-25, 93, T2 292/6-11. When venue is improper, travel

fees, whether attorney’s or witnesses’, to the improper venue are also

42

improper. Florida Bar v. Barley, 831 So. 2d 163, 171 (Fla. 2003). Here, this

Court disallowed attorney’s travel fees when venue was improper.

In addition, The Bar requested an unreasonable amount of witness

travel fees because the final hearing was rescheduled. T2 125/6-9. First, the

witnesses had ample time, from August 7, 2008 to September 22, 2008, to

reschedule their flights. I20. Furthermore, the final hearing was rescheduled

due to The Bar’s failure to timely comply with discovery. I19, I23.

The Bar also requested a payment for investigative services but such

services were never mentioned during the hearing or specifically enumerated

in the Affidavit of Fees and Costs. “Investigative costs include fees that a

respondent pays to an investigator, as well as that investigator’s travel and

out-of-pocket expenses.” Florida Bar v. Chilton, 616 So. 2d 449, 451 (Fla.

1993). Here, this Court disallowed investigative costs for non-professional

investigator, whose functions enumerated in the affidavit were non-

investigative in nature.

The Bar’s request for court reporter fees for the hearing before the

grievance committee is both unnecessary and unreasonable. First, The Bar

ordered this transcript in search of support for the second count against

Respondent. In addition, The Bar could not use the transcript of the same

hearing before the referee unless used for the purpose of impeachment. T1

43

77/9-20. At the final hearing, Respondent was not impeached by means of

the same transcript. When trying to impeach Respondent, The Bar referred

to ONE page from the transcript at issue. T1 74/15-22. Yet, the referee

erroneously allowed The Bar to submit into evidence the entire transcript of

the hearing before the grievance committee and erroneously allowed the cost

of the entire transcript to be charged to Respondent. EB6, I34.

VII. Respondent’s Due Process Was Violated.

Respondent’s claim of procedural due process violation is based on

the fact that the additional charges regarding false statement to a tribunal,

fraudulent and deceitful conduct, and false advertising were entirely derived

from Respondent’s defense to the original charges. Like the attorney in

Ruffalo, Respondent here “was completely unaware that the uncharged

conduct was to be questioned and had been, in essence, trapped by his

defense to the original charge.” Florida Bar v. Fredericks, 731 So. 2d 1249,

1253-54 (Fla. 1999).

“A person’s right to reasonable notice of a charge against him, and an

opportunity to be heard in his defense—a right to his day in court—are basic

in our system of jurisprudence.” In re Oliver, 333 U.S. 257, 273 (1948).

Under the Due Process Clause, reasonable notice must include the specific

issues to be defended by a party. In re Gault, 387 U.S. 1 (1967). Our

44

constitutional guarantees of due process “apply fully to attorney disciplinary

proceedings” because “lawyers also enjoy first class citizenship.” In re

Ruffalo, 390 U.S. 544, 550 (1968); Spevack v. Klein, 385 U.S. 511, 516

(1967).

The United States Supreme Court has held that “the absence of fair

notice as to the reach of the grievance procedure and the precise nature of

the charges deprive petitioner of procedural due process.” Ruffalo at 552.

Here, the attorney had been disbarred due to conduct completely unrelated to

the original charges. In addition, the disbarment charge arose from Ruffalo’s

defense to the original charges. However, when the attorney did not face

disbarment but rather public reprimand and had not contended that he was

afforded no opportunity to respond to the allegations, the U.S. Supreme

Court found no violation of procedural due process. Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626 (1985).17

17 Instead, attorney Zauderer contended that the Ohio regulations of commercial speech were so vague and confusing that his advertisement did not violate the State’s disclosure requirements. Ohio changed its theory of reasoning on the issue of what disclaimers regarding terms of representation and nature of contingent fees should have been included in the advertisements after the close of evidence and the Supreme Court concluded in a split-decision: “That the Board of Commissioners chose to make its recommendation of discipline on the basis of reasoning different from that of the Office of Disciplinary Counsel is of little moment.” Zauderer at 654.

45

The Florida Supreme Court had concurred with the U.S. Supreme

Court ruling in Ruffalo: “We agree with Batista that a new rule violation

cannot be considered without adequate notice. Attorneys must be given

reasonable notice of the charges they face before the referee’s hearing on

those charges.” Florida Bar v. Batista, 846 So. 2d 479, 484 (Fla. 2003)

(referring to In re Ruffalo, 390 U.S. 544, 550 (1968)). This Court has

consistently rejected referees’ findings of guilt on counts not initially

charged. Florida Bar v. Vernell, 721 So. 2d 705 (Fla. 1998); Florida Bar v.

Price, 478 So. 2d 812 (Fla. 1985); Florida Bar v. Stillman, 401 So. 2d 1306

(Fla. 1981).

Just like in Ruffalo, The Florida Bar formed its second, unrelated to

the originally charged conduct, count entirely from the Respondent’s

defense. Having formulated the second count, The Bar set a hearing and

made efforts to elicit further information from Respondent in support of the

second count.

At the hearing, based on materials provided by Respondent in her

defense, Respondent was submitted to extensive inquiry regarding the Bar’s

pending charges of violations of R. 4-3.3(a)(1), 4-7.2(c)(6)(a) and 4-8.4(c)

Regulating Fla. Bar. At the first final hearing, the only one attended by

Respondent in person, Respondent was alone. EB6. Erroneously, Bar

46

counsel testified at the referee hearing that Respondent was accompanied by

counsel at the hearing before the grievance committee and no one raised any

objection to the questioning on the issue of specialization. T1 19/1-3.18

18 In fact, not only was Respondent alone and without counsel at the hearing before the grievance committee but the Bar counsel’s interrogation was so aggressive that it brought Respondent to tears. Would this be considered a false statement to a tribunal?

Furthermore, at the beginning of the November 5, 2008 hearing,

Respondent received for the first time a sizable package of materials,

numbering more than 30 pages, submitted by Mr. Childs in support of his

complaint. EB5. Thus, Respondent was not provided beforehand with all

materials considered by the committee and/or given a reasonable opportunity

to make a written statement or any meaningful statement regarding the

newly submitted materials. Id. Therefore, The Florida Bar further violated

Respondent’s Due Process rights because it failed to furnish Respondent at a

reasonable time beforehand with the extensive factual materials provided by

the complainant at the actual hearing and used by the grievance committee

to determine probable cause. Florida Bar v. Rubin, 709 So. 2d 1361 (Fla.

1998). By doing so, The Florida Bar also violated R. 3-7.4(h) Regulating

Fla. Bar.

Fully aware of the pending charges, Bar counsel attempted to elicit

47

Respondent’s response in support of the Bar’s new allegations. Id. Without

any knowledge of the pending second count, Respondent testified:

“Q: Did you tell the Judge that you specialize in marital and family law? A: Yes. Q: Is that true? A: I do. Q: Even though you have practiced for three years and 15% of your practice -- A: Yes—well, I specialize because, you know, I read additional books and go to seminars, but it does not mean I’m an expert.” EB6 68/22-25, 69/1-6.

Like in Ruffalo, where the Ohio Board got a new hearing after

charging the attorney with a new count derived from his defense, The Bar

here set a new hearing on the additional counts based on information elicited

by Respondent in her defense. In Ruffalo, the U.S. Supreme Court rejected

the Board’s contention that a continuance given to the attorney in order to

have time to respond to the new charge satisfied the demands of due process.

Here, the Bar went even further and elected to find a probable cause on

Respondent’s new charges without an actual hearing and without providing

Respondent with an opportunity to be heard.

This Court has clarified key differences between Ruffalo and Florida

cases. Please see Florida Bar v. Vaughn, 608 So. 2d 18 (Fla. 1992); Florida

Bar v. Nowacki, 697 So. 2d 828 (Fla. 1997); Florida Bar v. Fredericks, 731

48

So.2d 1249 (Fla. 1999). Unlike the attorneys in Vaughn, Nowacki, or

Fredericks, Respondent’s new charges, regarding the misuse of the verb

“specialize” were not related and were not within the scope of the conduct

and rule violations specifically charged in the initial grievance and/or the

complaint. Id. The Bar’s original charges comprised the email only. False

advertising, false statements to a tribunal and conduct of fraud and deceit did

not stem from the originally alleged conduct of using criminal charges solely

to gain an advantage in a civil matter.

Here, The Bar constructed the second count from both the materials

provided in Respondent’s defense to the original, unrelated charges as well

as Respondent’s uninformed testimony on the second count extracted from

the defense materials. The referee’s reasoning that Ruffallo does not apply

because The Ohio Board derived its new charges entirely from Ruffallo’s

testimony, rather than also materials provided in his defense, is untenable.

The referee erred when she denied Respondent’s motion to dismiss.

CONCLUSION

The Referee’s Report repeats VERBATIM The Bar’s Complaint. The

referee’s factual findings and conclusions that Respondent intended to

mislead the judge, any party, or the public when she non-deliberately

misused the verb “specialize” and corrected same misuse within moments of

49

its uttering lack evidentiary support. The findings and conclusions regarding

Respondent’s email sent in direct response to Mr. Childs’ attorney relentless

pressure to convert the vacated annulment into uncontested divorce and

referred to a speculative, non-specific settlement offer of the future divorce

case also lack support in the record.

Therefore, Respondent is praying that this Court finds her not guilty

on both counts. In the alternative, Respondent is praying that the Court take

into consideration the lack of injury to any party or the public and the

numerous circumstances mitigating in Respondent’s favor while

distinguishing between public and private reprimand.

Respectfully submitted,

_____________________________________

PETIA DIMITROVA KNOWLES, PH.D., ESQ 12550 Biscayne Blvd., Ste. 800,

Miami, FL 33181, [email protected]

Cell. (954) 600-8728

mailto:[email protected]�

50

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been

served via first-class U.S. mail on this 6th day of July, 2010 to Lorraine C.

Hoffman, Lake Shore Plaza II, 1300 Concord Terrace, Suite 130, Sunrise,

Florida 33323 and to Kenneth L. Marvin, 651 East Jefferson St.,

Tallahassee, Florida 32399-2300.

_____________________________________

PETIA DIMITROVA KNOWLES, PH.D., ESQ

CERTIFICATE OF COMPLIANCE

Undersigned counsel hereby certifies Respondent’s Amended Initial

Brief is submitted in 14 point, proportionately spaced, Times New Roman

font, and the computer file has been scanned and found to be free of viruses

by Norton Anti-Virus for Windows.

51

______________________________________ PETIA DIMITROVA KNOWLES, PH.D., ESQ.

SC09-403 amended initial breif - Florida Supreme Court · IN THE SUPREME COURT OF FLORIDA Case No:...

Documents

Transcript of SC09-403 amended initial breif - Florida Supreme Court · IN THE SUPREME COURT OF FLORIDA Case No:...