___________________________________/
IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant,
v.
MARK F. GERMAIN,
Respondent.
Case No. SC12-1981
TFB File No. 2012-30,669(5B)
Case No. SC12-2289
TFB File No. 2013-90,047(5B)(OSC)
ANSWER BRIEF
JoAnn Ma rie Stalcup, Bar Counsel
The Florida Bar
1000 Legion Place, Suite 1625
Orlando, Florida 32801-1050
(407) 425-5424
Florida Bar No. 972932
Kenneth Lawrence Marvin, Staff Counsel
The Florida Bar
651 E. Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600
Florida Bar No. 200999
John F. Harkness, Jr., Executive Director
The Florida Bar
651 E. Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600
Florida Bar No. 123390
Electronically Filed 10/31/2013 10:12:48 AM ET
RECEIVED, 10/31/2013 10:13:42, Thomas D. Hall, Clerk, Supreme Court
mailto:[email protected]:[email protected]:[email protected]:[email protected]
i
TABLE OF CONTENTS............................................................................................i
TABLE OF CITATIONS.......................................................................................... ii
SYMBOLS AND REFERENCES .............................................................................1
STATEMENT OF THE CASE..................................................................................2
STATEMENT OF THE FACTS................................................................................4
SUMMARY OF ARGUMENT ...............................................................................11
ARGUMENT ...........................................................................................................12
ISSUE I ....................................................................................................................12
THE REFEREES RECOMMENDATIONS AS TO FACTS AND
FINDINGS OF GUILT ARE WELL SUPPORTED BY THE COMPETENT,
SUBSTANTIAL RECORD EVIDENCE.
ISSUE II ...................................................................................................................17
THE REFEREES RECOMMENDED DISCIPLINE OF PERMANENT
DISBARMENT IS APPROPRIATE GIVEN THE FACTS, CASE LAW,
AND STANDARDS FOR IMPOSING LAWYER SANCTIONS.
CONCLUSION ........................................................................................................27
CERTIFICATE OF SERVICE ................................................................................29
CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN ........30
TABLE OF CONTENTS
Cases
Dodd v. The Florida Bar, 118 So.2d 17 (Fla. 1960) ................................................22 The Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011) ...........................................22
The Florida Bar v. Cox, 718 So.2d 788 (Fla. 1998).................................................22 The Florida Bar v. Draughon, 94 So.3d 566 (Fla. 2012) .........................................15
The Florida Bar v. Flinn, 575 So.2d 624 (Fla. 1991)...............................................23 The Florida Bar v. Germain, 957 So.2d 613 (Fla. 2007) .........................................18
The Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009) ......................................16, 22 The Florida Bar v. Kassier, 711 So.2d 515 (Fla. 1998) ...........................................21
The Florida Bar v. Klein, 774 So.2d 685 (Fla. 2000) ........................................22, 23 The Florida Bar v. Lord, 433 So.2d 983 (Fla. 1983) ...............................................26
The Florida Bar v. MacMillan, 600 So.2d 457 (Fla. 1992)......................................13 The Florida Bar v. Niles, 644 So.2d 504 (Fla. 1994)...............................................12
The Florida Bar v. OConnor, 945 So.2d 1113 (Fla. 2006) ...............................21, 22 The Florida Bar v. Poe, 786 So.2d 1164 (Fla. 2001) ...............................................24
The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970) ..........................................12 The Florida Bar v. Rotstein, 825 So.2d 241 (Fla. 2003) ..........................................22
The Florida Bar v. Spear, 887 So.2d 1242 (Fla. 2004) ......................................17, 26 The Florida Bar v. Thompson, 994 So.2d 306 (Fla. 2008) ......................................24
The Florida Bar v. Vining, 721 So.2d 1164 (Fla. 1998) ....................................12, 13 The Florida Bar v. Vining, 761 So.2d 1044 (Fla. 2000) ..........................................12
Other Authorities Cited
Rules
3-5.1(c) .....................................................................................................................10 4-1.1 ...........................................................................................................................2
4-1.7(a)(2) ..................................................................................................................3 4-3.4(b).......................................................................................................................3 4-8.4(a) .......................................................................................................................3 4-8.4(d).......................................................................................................................3
TABLE OF CITATIONS
ii
SYMBOLS AND REFERENCES
Complainant will be referred to as The Florida Bar, or as the bar. Mark F.
Germain, respondent, will be referred to as respondent throughout this brief.
References to the report of referee shall be by the symbol ROR followed by
the appropriate page number.
References to specific pleadings will be made by title.
The transcript of the final hearing held on March 21, 2013, shall be referred
to as "T-I" followed by the cited page number.
The transcript of the disciplinary hearing held on April 11, 2013, shall be
referred to as "T-II" followed by the cited page number.
The bar's exhibits will be referred to as "B-Ex." followed by the exhibit
number.
Respondents exhibits will be referred to as "R-Ex." followed by the exhibit
number.
1
STATEMENT OF THE CASE
On September 14, 2012, The Florida Bar filed a complaint against
respondent, which was subsequently assigned Supreme Court Case No. SC12-1981.
On October 18, 2012, The Honorable Stanley H. Griffis, III was appointed as
referee for Case No. SC12-1981.
On October 25, 2012, the bar filed a Petition for Contempt and Order to
Show Cause due to the finding of probable cause against respondent for misconduct
which occurred during his probationary period involving his non-compliance with
the Court's order dated May 12, 2010. On December 5, 2012 The Supreme Court
of Florida issued its Order to Show Cause in Case No. S C12-2289, dire cting
respondent to state why he should not be held in contempt or other discipline
imposed as set forth in The Florida Bars Petition. By order dated January 31,
2013, the Court consolidated Case Nos. SC12-1981 and SC12-2289 f or all review
purposes. On February 4, 2013, The Honorable Stanley H. Griffis, III was also
appointed as referee for Case No. SC12-2289.
Judge Griffis entertained the final hearing on March 21, 2013, and conducted
a disciplinary hearing on April 11, 2013. The referee entered his r eport of referee
on June 17, 2013, finding respondent guilty of violating the following Rules
Regulating The Florida Bar in Case No. SC12-1981: 4-1.1 [ Competence]; 4-
2
1.7(a)(2) [Conflict of Interest; Current Clients]; 4-3.4(b) [Fairness to Opposing
Party and Counsel]; 4-8.4(a), (d) [Misconduct] (ROR-9-10). In Case No. SC12-
2289, the referee found respondent in contempt for violating his disciplinary
probation ( ROR-15). The referee further recommended that respondent be
permanently disbarred from the practice of law and that he pay the bars
disciplinary costs (ROR-15).
Respondent filed his Petition for Review on or about August 13, 2013. On or
about August 30, 2013, respondent filed a Request for Extension of Time to File
Initial Brief, which the Court granted on September 4, 2013. Respondent filed his
Initial Brief on or about October 16, 2013.
3
STATEMENT OF THE FACTS
Case No. SC12-1981
In this matter, the bar adopts the referees findings of fact as set forth in his
report. The following facts are taken from the report of referee and as otherwise
noted.
On or about July 1, 2011, Jeffrey Bowman was arrested in Lake County,
Florida, f ollowing an alleged domestic battery on Bonnie DePaolo (B-Ex. 5).
Jeffrey Bowman was later released a nd or dered to have no contact with Ms.
DePaolo as a condition of his pretrial release (T-1, p. 11).
Assistant State Attorney, C hristopher Shropa, m et Bonnie DePaolo on the
day of Jeffrey Bowman's bond hearing. Ms. DePaolo was very upset that Jeffrey
Bowman was bonding out of jail (T-I, p. 203-204). Jeffrey Bowman was the
subject of a prior injunction with Ms. DePaolo from 2007 (B-Ex. 3). Ms. DePaolo
also went to the hospital some time after the incident for injuries Jeffrey Bowman
allegedly caused (B-Ex. 6). Ms. DePaolo's sister, Rita Hazlette, further testified
that a Sheriffs Deputy came to her house to warn her that Jeffrey Bowman
threatened to kill her (T-I, p. 384). She testified that Jeffrey Bowman came into her
yard, angry and waving a gun (T-1, p. 385). Ms. DePaolo was staying with Ms.
Hazlette at the time (T-I, p. 383).
4
In early July 2011, respondent agreed to represent Ms. DePaolo. Respondent
called Jeffrey Bowman and requested a meeting at Denny's Restaurant in order to
make it "all go away" (T-I, p. 81, l. 15-16). Jeffrey Bowman testified that the two
discussed getting his belongings back and dropping the prosecution for "cash" (T-I,
p. 82, l. 11-12). Jeffrey Bowman did not agree, and the settlement was not finalized
(T-1, p. 82).
Respondent then contacted attorney John Bruce Bowman, who is the brother
of Jeffrey Bowman (T-I, p. 163-164). Respondent suggested that Jeffrey Bowman
pay a "substantial" amount of money to avoid prosecution (T-I, p. 164, l. 3-5). John
Bruce Bowman indicated that the suggestion was extortion and he would not be a
part of it (T-I, p. 164). He later reviewed a settlement agreement that was
negotiated between Jeffrey Bowman and respondent (T-I, p. 164). John Bruce
Bowman also indicated that respondent never discussed a civil settlement or claim
(T-I, p. 167). He testified that the call was about saving money with a criminal
lawyer and getting money to resolve a criminal matter (T-I, p. 167).
Respondent testified that the content of a proposed settlement agreement was
contained in an e-mail to Jeffrey Bowman and John Bruce Bowman (T-I, p. 358).
John B ruce Bowman maintained that he never received a copy because of a faulty
e-mail address (T-I, p. 165-166). Respondent also did not have Ms. DePaolo's
5
medical bills (which later exceeded $3,000.00) at the time of the agreement (T-I, p.
405). Respondent tried to resolve the case before a July 14, 2011 meeting between
the State Attorney's Office and Ms. DePaolo, so that Jeffrey Bowman would not
have to ''spend money" on a criminal defense attorney (T-I, p.168, l. 1-2).
Respondent testified that he was aware of the bar rules prohibiting compensating
people to drop criminal charges (T-I, p. 415). Respondent did not call the Florida
Bar Ethics Hotline during the preparation of the agreement (T-I, p. 229).
Respondent then prepared a settlement agreement in which Ms. DePaolo
would sign an Intent Not to Prosecute and in good faith make every effort to ensure
that Jeffrey Bowman was not prosecuted, und er certain conditions (B-Ex. 1).
Paragraph three of the settlement agreement contained the following language:
"THAT BONNIE DEPAOLO agrees to s ign an Intent Not
to Prosecute on July 14, 2011, in Lake County case number
2011-MM-4206, (Battery-Touch Strike), during her meeting
with the State Attorney's Office and that she will in good
faith make every effort to ensure that there is no prosecution
in said matter."
The Agreement also contained the following statement:
"I, attorney Mark F. Germain, hereby acknowledge receipt
of $1,500 from JEFFREY ALLEN BOWMAN on behalf of
BONNIE DEPAOLO as compensation for the concessions
made herein."
6
http:3,000.00
The agreement was signed July 10, 2011, by both respondent and Ms.
DePaolo (B-Ex. 1). However, respondent never received the $1,500.00 from
Jeffrey Bowman, and Mr. Bowman never signed the agreement.
Soon after the agreement was signed by respondent, attorney James Hope,
respondent's supervising attorney for his dis ciplinary probation, received a call from
respondent regarding the agreement at issue (T-I, p. 224-225). Mr. Hope dissuaded
respondent from using the language in paragraph three, but respondent continued to
press as to why he thought the language was appropriate (T-I, p. 225-226). Mr.
Hope told respondent, "I wouldn't touch it with a ten-foot pole" (T-I, p. 226, l. 14-
15). Respondent then admitted that the agreement was not a proposal, and that he
had already signed it (T-I, p. 226).
State Attorney's Victim Advocate, Audrey Poe, met with Ms. DePaolo on
July 14, 2011 ( T-I, p. 121). She took information regarding the July 1, 2011
incident. During the meeting, Ms. DePaolo provided the settlement agreement to
Ms. Poe (B-Ex. 1; T-I, p. 121-122). Respondent's and Ms. DePaolo's signatures
were on the agreement (B-Ex. 1). Ms. DePaolo tol d Ms. Poe that she went to
respondent for counseling, but determined that respondent was not working for her
best interests (T-I, p. 123-124). Ms. DePaolo expressed tha t she feared for her life
from Jeffrey Bowman (T-I, p. 125). She also indicated tha t respondent advised her
7
http:1,500.00
that it would be in her best interests to sign the agreement (T-I, p. 125). Ms.
DePaolo learned about filing for a Domestic Violence Injunction from Ms. Poe and
filed one the next day, July 15, 2011 (T-I, p. 124). At the final hearing, Ms.
DePaolo contradicted many of these statements, but the referee did not f ind such
testimony credible (T-I, p. 248-249; ROR-6).
Assistant State Attorney, R obin Lesser, was later assigned to prosecute the
domestic battery case against Mr. Bowman (T-I, p. 138). She discussed some of the
documents in the battery case, including a Notice of Appearance filed by
respondent on be half of victim Bonnie DePaolo, on or about December 5, 2011 (B-
Ex. 6; T-I, p. 138-141). Ms. Lesser received a copy of the settlement agreement at
issue and was concerned because it appeared to be an agreement not to prosecute a
case in exchange for money. Ms. Lesser turned it over to her supervisor (T-I, p.
144). Ms. Lessers supervisor referred the agreement to Walter Forgie, the division
supervisor of the Lake County State Attorneys Office (T-I, p. 45). Mr. Forgie
found it to be troubling and forwarded the agreement to his supervisor, the Chief
Assistant State Attorney, who then forwarded the agreement to The Florida Bar (T-
I, p. 45).
Ms. Lesser continued to prosecute the case against Mr. Bowman. Ms.
DePaolo visited the prosecutor's office and indicated that she was under the
8
impression from respondent that the case would be dropped (T-I, p. 145). Ms.
Lesser indicated that she was going to proceed. In her testimony, Ms. Lesser
discussed the progression of the case, including it being set for trial on February 6,
2012 (T-I, p. 150). Ultimately, the State could not proceed to trial because Ms.
DePaolo was not available to testify, as a result of her moving away from Florida
(T-I, p. 150-151). On or about February 3, 2012, the State dismissed the criminal
charges against Jeffrey Bowman (B-Ex. 7).
Case No. SC12-2289
In Florida Supreme Court Case No. SC09-906, by order dated May 12, 2010,
respondent was reinstated to the practice of law and placed on probation for a
period of 3 years. Due to the finding of probable cause for respondents
misconduct, as detailed above, which occurred during the probationary period and
his non-compliance with the Court's Order dated May 12, 2010, The Florida Bar
was obligated to file a Petition for Contempt for non-compliance.
In respondents Initial Brief, he was disingenuous concerning the completion
of his probation. On June 10, 2013, respondent sent the referee a Notice of Filing
Bars Letter Terminating Respondents Probation, with an attached letter dated May
21, 2013. In this letter, the bar incorrectly stated that respondent had completed all
the conditions associated with his probation. In fact, respondent had not completed
9
his probation due to the finding of probable cause. On June 11, 2013, The Florida
Bar sent respondent a corrected letter, stating as follows:
The enclosed letter, concerning your probation in the above
referenced case, sent on May 21, 2013, contained one
inaccuracy. While it is true that our records reflect that you
have paid all costs, the file should not have been closed.
You are aware that the bar has filed a Petition for Contempt
alleging that probable cause was found for conduct that
occurred while you were on probation. By operation of rule
3-5.1(c), this file will remain open until there is a
determination by the Supreme Court concerning the pending
Petition for Contempt.
Thereafter, on June 12, 2012, the bar sent the referee a Notice of Filing, with
the attached letter to respondent dated June 11, 2013. The Florida Bar mailed the
June 11, 2013 letter directly to respondent, a nd then immediately filed it with the
referee in this matter. The bar also sent a copy of its filing to respondent. The bar
informed the referee of its error prior to the referee issuing his report, which
specifically found respondent to be in contempt "for violating his probation" (ROR-
15). In his Initial Brief dated October 16, 2013, respondent completely failed to
address the June 11, 2013 letter, instead implying that he had successfully
completed all the conditions associated with his probation.
10
SUMMARY OF ARGUMENT
The record in this matter contains substantial, competent evidence that
clearly and convincingly supports the referees findings and recommendations of
guilt concerning respondents incompetent representation as it related to Ms.
DePaolo, his attempt to extort funds from Jeffrey Bowman, his conflict of interest
in regard to the settlement agreement, his pattern of engaging in conduct prejudicial
to the administration of justice, and his contempt by violating his disciplinary
probation. The referee was in the best position to review the evidence and assess
the credibility of the witnesses who testified. Therefore, consistent with its prior
holdings, this Court should not reweigh the evidence or substitute its judgment for
that of the referee, but should approve the referees findings of fact and
recommendations of guilt.
Standing alone, this case would not likely warrant disbarment. The referees
recommendation of permanent disbarment is appropriate due to respondents
lengthy disciplinary history involving similar misconduct and the fact that
respondent does not appear to be amenable to rehabilitation.
11
ARGUMENT
ISSUE I
THE REFEREES RECOMMENDATIONS AS TO FACTS AND
FINDINGS OF GUILT ARE WELL SUPPORTED BY THE
COMPETENT, SUBSTANTIAL RECORD EVIDENCE.
Respondents burden on review is to demonstrate that there is no evidence in
the record to support the referees findings or that the record evidence clearly
contradicts the conclusions. The Florida Bar v. Vining, 721 So.2d 1164, 1167 (Fla.
1998). Respondent cannot satisfy his burden of showing that the referees findings
are clearly erroneous "by simply pointing to the contradictory evidence where there
is also competent, substantial evidence in the record that supports the referees
findings." The Florida Bar v. Vining, 761 So.2d 1044, 1048 (Fla. 2000). The
evidence in this matter is substantial, and it includes significant documentary and
testamentary evidence to support the referees findings. The referee in this matter
also presented an extensive and thorough report.
The standard of proof in a bar disciplinary proceeding is clear and convincing
evidence. The Florida Bar v. Niles, 644 So.2d 504, 506 (Fla. 1994), citing The
Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). The bar has met its burden of
proof by clear and convincing evidence. This Court has consistently held that
where a referees findings are supported by competent substantial evidence, it is
12
precluded from reweighing the evidence and substituting its judgment for that of the
referee. Vining, 721 S o.2d at 1167, quoting The Florida Bar v. MacMillan, 600
So.2d 457, 459 (Fla. 1992). The referee was in the best position to assess
credibility and to determine guilt, and his findings and recommendations are clearly
supported by the record. Thus, respondent has failed to meet his burden of
establishing that the record is wholly lacking in evidentiary support for the referees
findings.
The evidence in this matter supports the referees findings that respondent
engaged in incompetent representation as it related to Ms. DePaolo, that he
attempted to extort funds from Jeffrey Bowman, and that he engaged in a conflict of
interest in regard to the settlement agreement. The record evidence further supports
the referees finding that respondent engaged in a pattern of misconduct that was
prejudicial to the administration of justice and that respondent engaged in contempt
by violating his disciplinary probation.
Respondent did not competently represent Ms. DePaolo. Respondent
provided evidence that Ms. DePaolo had been the recipient of a "heinous" and
"vicious" attack by Jeffrey Bowman, who had also previously attacked her in 2007,
and whom she believed threatened her while she was staying at her sister's
residence, following his release from jail. Despite respondents insistence that Ms.
13
DePaolo was in danger, respondent did little, if anything, to protect her (B-Ex. 1).
Specifically, respondent did not help Ms. DePaolo to obtain an injunction, which
carries greater enforceability and consequences for violation than a "no contact"
order from first appearance (B-Ex. 3, 4). Respondent also waived Ms. DePaolos
ability to seek personal injury damages, without knowing what those damages were,
and then encouraged settlement for a sum of money far below the actual costs she
incurred for medical treatment (B-Ex. 1; T-I, p. 266-267, 284).
Respondent also discouraged the criminal prosecution of the alleged
"perpetrator" in this case, which prosecution may have resulted in further
protections and restitution for Ms. DePaolo. Respondent attempted to negotiate a
settlement which was beneficial to Jeffrey Bowman and detrimental to Bonnie
DePaolo, and he attempted to extort funds from Jeffrey Bowman in exchange for a
declination of prosecution (T-I, p. 82, l. 11-12). In addition to the harm this caused
to Ms. DePaolo, respondent ultimately interfered with the State's prosecution of
Jeffrey Bowman by negotiating terms encouraging Ms. DePaolo's non-participation
as a witness in the case (B-Ex. 1; T-I, p. 145).
Respondent was also misleading during the bar's investigation of this matter.
For example, he prepared two affidavits for Ms. DePaolo, which the referee found
were at best self-serving testimony and were not accurate (R-Ex. 6, 7). During the
14
final hearing, Ms. DePaolo could not even read portions of the affidavits, and it was
clear that the contents were not her testimony (T-I, p. 276, 281-283, 288, 291-294).
These affidavits were prepared at critical points in the disciplinary process. In this
proceeding, respondent also gave deposition testimony that was inaccurate and
accusatory toward other parties, including the State Attorneys Office and The
Florida Bar (B-Ex. 9, p. 42, l. 22-23; p. 46, l. 6-8; p. 50, l. 6-12; p. 78, l. 9-12; p.
85-86; p. 89-90). As detailed in his report, the referee also repeatedly admonished
and redirected respondent throughout the disciplinary proceeding (ROR-19-21).
As the referee is in a unique position to assess witness credibility, this Court
will not overturn a referees judgment absent clear and convincing evidence that his
judgment is incorrect. The Florida Bar v. Draughon, 94 So.3d 566, 570 (Fla. 2012).
The bar submits that there is no clear evidence that the referees judgment is
incorrect in this case. The referee was in the best position to review the evidence
and assess the credibility of the witnesses who testified. Therefore, consistent with
its prior holdings, the Court should not reweigh the evidence or substitute its
judgment for that of the referee, but should approve the referees findings of fact
and recommendations of guilt.
In his Initial Brief, respondent also alleged that the referee erred in not giving
more weight to the facts in mitigation. In his report, the referee specifically
15
considered the witnesses who testified to respondents "good character generally,
his involvement in the community, and the substantial pro bono legal services he
provides" (ROR-16). Like other factual findings, findings of mitigation and
aggravation carry a presumption of correctness that will be upheld unless clearly
erroneous or without support in the record. Therefore, a referee's determination that
an aggravating factor or mitigating factor does not apply is due the same deference.
The Florida Bar v. Herman, 8 So.3d 1100, 1106 (Fla. 2009). In this matter, the
referee considered the totality of the evidence and appropriately found more
aggravating factors than mitigating factors.
16
ISSUE II
THE REFEREES RECOMMENDED DISCIPLINE OF
PERMANENT DISBARMENT IS APPROPRIATE GIVEN THE
FACTS, CASE LAW, AND STANDARDS FOR IMPOSING
LAWYER SANCTIONS.
"When reviewing a referees recommended discipline, this Courts scope of
review is broader than that afforded to the referees findings of fact because,
ultimately, it is the Courts responsibility to order an appropriate sanction." The
Florida Bar v. Spear, 887 So.2d 1242, 1246 (Fla. 2004). As a general rule, the
Court will not second-guess a referees recommendation of discipline as long as the
discipline is authorized under the Florida Standards for Imposing Lawyer Sanctions
and has a reasonable basis in existing case law. Id. at 1246. The bar maintains that
the discipline recommended by the referee, permanent disbarment, is supported by
respondents pattern of misconduct, the existing case law, a nd the Florida Standards
for Imposing Lawyer Sanctions.
Respondent was admitted to practice law in Florida on May 31, 1995.
During respondents seventeen years of practicing law in Florida, he has been
involved in four (including the instant proceeding) disciplinary proceedings and one
reinstatement proceeding. On November 13, 1997, r espondent received a public
reprimand and was required to attend and successfully complete a professional
enhancement program for misconduct he engaged in between late 1996 and early
17
1997 (B-Ex. 20) . Then, on June 28, 2001, the Supreme Court approved the
uncontested Report of Referee recommending that respondent be diverted to a
practice and professionalism enhancement program for conduct respondent engaged
in between late 1998 through most of 1999 (B-Ex. 21). Thereafter, on May 17,
2007, the Supreme Court, in The Florida Bar v. Germain, 957 So.2d 613 (Fla.
2007), is sued an opinion suspending respondent for a period of one year (B-Ex. 22).
Respondent sought reinstatement and was granted reinstatement with a condition of
three years probation by Court order issued May 12, 2010 (B-Ex. 23).
The instant case has many similarities to respondents previous disciplinary
cases. It does not appear after three prior disciplinary proceedings, in which he
engaged in similar misconduct to the instant matter, that respondent can be
rehabilitated. Respondent has been given numerous opportunities to address his
misconduct, a nd yet he reverts back to doing the same thing over and over again.
Respondent continues, apparently unabated, to engage in conduct that is prejudicial
to the administration of justice. He continues to do whatever he believes he needs
to do, whether it violates the rules governing attorney conduct, to achieve a goal he
believes is just.
Respondent has previously blamed, a nd continues to blame, oth ers for his
conduct. In his deposition, respondent stated the following regarding the previous
18
proceeding for which he received a one year suspension:
A I believe that I had alleged that Michael C. Norvell
had a gun in his office. Hes a convicted felon. I made a
police report to that effect. Norvell coerced me into signing
an affidavit saying that he didnt have possession of the
firearm. I signed it under duress and the threat of death
from Norvell. He had attacked me --
Q Mr. Germain --
A -- on three separate occasions and had threatened to
kill me --
Q Mr. Germain, I asked you: Do you recall whether or
not one of the allegations that the Court found was whether
or not you were guilty of misrepresentation. Thats my
question.
A I had written a subsequent pleading saying that
Norvell actually did have a gun in his office, which was
proven at trial; however, the referee did find that it was
irrelevant whether the felon had a gun in his office; I had
made contradictory statements (B-Ex. 9, p. 8, l. 13-25; p. 9,
l. 1-4).
Regarding the settlement agreement in the instant proceeding, respondent
stated that "[a]ttorney Bruce Bowman is the one that encouraged me to put some
clause in the agreement to that effect" (B-Ex. 9, p. 42, l. 22- 23). Respondent
continually fails to take responsibility for his misconduct. He repeatedly attempts
to cast the cases involving his misconduct in a light that reflects him as the person
19
doing the right thing, while everyone else is engaged in some type of misconduct to
harm him and/or his client.
Respondents conduct in this regard is not limited to statements made during
an investigatory bar deposition. Respondent has also accused the bar of misconduct
in pleadings and during the final hearing in this matter. For example, in the Motion
to Strike Errata Sheet of Jeffrey Allen Bowman, respondent, without any evidence
thereof, alleged that "[i]t appears Bar Counsel JoAnn Stalcup engaged in witness
tampering. She contacted Jeffrey Allen Bowman and sought an Errata Sheet from
him contradicting his original deposition testimony in order to win her case against
the Respondent." Respondent reiterated this accusation, again without any proof,
and despite the testimony of the witnesses to the contrary, that the bar had engaged
in witness tampering as it related to the content of the errata sheet filed on behalf of
Jeffrey Bowman in the civil suit currently pending in circuit court.
As he did in his prior disciplinary proceedings, respondent continues to
"name call" despite the fact that there has been no finding the individuals are guilty
of any criminal offense. In the instant proceeding, respondent continually
references Jeffrey Bowman as "the perpetrator" of a crime and/or "the perpetrator of
a heinous act," despite the fact that the State did not proceed with its prosecution
and that Mr. Bowman was not found guilty by any court of committing a criminal
20
act against Ms. DePaolo in June/July 2011. As examples, see: (Motion to Suppress,
p. 4); (Reply to Bars Response to Motion to Suppress, p. 6); (Respondents Reply
to The Florida Bars Motion to Strike Respondents Notice of Filing Deposition of
Jeffrey Allen Bowman, p. 13). Likewise, respondent spent a significant period of
time during the final hearing discussing the referring to Jeffrey Bowman as the
"perpetrator" or "the perpetrator of a heinous vicious act of violence against Bonnie
DePaolo."
Respondent has not learned from his previous disciplinary cases that he
should refrain from these types of disparaging comments. Respondent has failed to
rehabilitate his behavior, despite being cautioned numerous times, attending a
professionalism enhancement program on two separate occasions, and being
suspended. Based upon the facts of this case and respondents continued similar
misconduct, the referees recommendation of permanent disbarment is appropriate.
The bar understands that disbarment is an extreme sanction and that it should
only be recommended when the conduct involved is egregious. This Court has
found that disbarment is an extreme form of discipline and is reserved for the most
egregious misconduct. The Florida Bar v. OConnor, 945 So.2d 1113, 1120 (Fla.
2006). Disbarment should be imposed only in those rare cases where rehabilitation
is highly improbable. Id. at 1120 citing The Florida Bar v. Kassier, 711 So.2d 515,
21
517 (Fla. 1998). However, the Court determined that where a lawyer demonstrates
an attitude or course of conduct wholly inconsistent with approved professional
standards disbarment may be appropriate. Dodd v. The Florida Bar, 118 So.2d 17,
19 (Fla. 1960). This Court has continued to find that disbarment may be
appropriate where there is a pattern of misconduct and a history of discipline.
OConnor at 1120, c iting The Florida Bar v. Cox, 718 So.2d 788, 794 (Fla. 1998).
Moreover, in The Florida Bar v. Adorno, 60 So.3d 1016, 1018 (Fla. 2011),
this Court made it clear that based on the increasing numbers of attorneys it is the
Courts top priority to ensure that all attorneys strictly follow the boundaries set
forth in The Rules Regulating The Florida Bar. It should also be noted that this
Court "has moved towards stronger sanctions for attorney misconduct in recent
years." The Florida Bar v. Herman, 8 So.3d 1100, 1108 (Fla. 2009), c iting The
Florida Bar v. Rotstein, 825 So.2d 241, 246 (Fla. 2003).
In The Florida Bar v. Klein, 774 So.2d 685 (Fla. 2000), an attorney was
disbarred for failing to provide competent representation, failing to abide by his
clients decisions, failing to explain matters fully to clients, failing to avoid
limitations on professional judgment, asserting frivolous issues, knowingly
permitting a witness to give false testimony, knowingly making false statement of
fact to a tribunal, knowingly disobeying orders of the tribunal, and conduct
22
prejudicial to the administration of justice. Like respondent, Klein embarked on a
"personal crusade" and elevated his personal interests above his obligation as an
officer of the court. Id. at 691. In regard to Kleins conduct, this Court stated as
follows:
What is clear from our review of this case is the inherent
danger to the public and the legal system when an attorney
ceases to objectively evaluate legal matters in which he is
personally involved . . . The tools and inherent power vested
in those authorized to practice law in Florida cannot be
perverted for personal whim. Id. at 691.
In The Florida Bar v. Flinn, 575 So.2d 624 (Fla. 1991), this Court disbarred
an attorney after considering the Standards for Imposing Lawyer Sanctions which
specifically stated that disbarment was appropriate when a lawyers course of
conduct demonstrated that the lawyer did not understand the most fundamental
legal doctrines or procedures. In regard to Flinns conduct, this Court stated:
Mr. Flinns strategy, whenever he is facing difficulties,
seems to be, yell conspiracy. He has claimed, in addition to
the workers compensation judges, that The Florida Bar,
and several attorneys are all out to get him. This is based on
nothing. Id. at 639.
Similar to Flinn, respondent repeatedly made baseless accusations against other
parties and demonstrated a lack of competence. In his report in this matter, the
referee noted there was no evidence to support respondents "incredible claims"
23
against other parties and that respondent "did not know or understand the Rule of
Sequestration" (ROR-21).
In The Florida Bar v. Poe, 786 So.2d 1164 (Fla. 2001), an attorney was
disbarred for naming himself as a beneficiary and personal representative, given his
extensive prior disciplinary history. Standing alone, the misconduct in Poe, or in
respondents current matter, would not likely result in disbarment. The extensive
pattern of misconduct supports respondents disbarment. In Poe, this Court again
noted that cumulative misconduct of a similar nature warrants an even more severe
discipline than might dissimilar conduct. Id. at 1166.
The referee further recommended respondents permanent disbarment after
finding that "respondent is not capable of rehabilitation" (ROR-16). As previously
discussed, the record clearly demonstrates that respondent is unwilling to change
his behavior. It is especially troubling that this disciplinary proceeding originated
while respondent was on extended probation for similar misconduct.
In The Florida Bar v. Thompson, 994 S o.2d 306 (Fla. 2008) (Unpublished
Disposition), this Court held that an attorney may be permanently disbarred after
the referee determined that the attorney was " not amenable to rehabilitation." Id. at
3. Thompson engaged in an egregious pattern of misconduct that was prejudicial to
the administration of justice. Although respondents conduct is less serious tha n
24
Thompsons misconduct, respondent has engaged in a similar pattern of behavior
demonstrating his inability to be corrected or to comply with court rules. As
recently as his Initial Brief, respondent provided misinformation concerning the
alleged completion of his probation to this Court. Furthermore, respondent attached
to his brief a bankruptcy filing for Jeffrey Bowman, da ted August 16, 2013, which
was not a part of the record in this matter. In his Initial Brief, respondent continued
to refer to Jeffrey Bowman as "the perpetrator" (I.B., p. 18). Each of the preceding
examples further supports the referees findings that respondent is not capable of
rehabilitation.
The Florida Standards for Imposing Lawyer Sanctions also assist in
determining the appropriate discipline. These standards, listed in the report of
referee, support disbarment a s the appropriate sanction in this matter (ROR-11-12).
Moreover, Standard 8.1 plainly states that disbarment is appropriate when a lawyer
(a) intentionally violates the terms of a prior disciplinary order and such violation
causes injury to a client, the public, the legal system, or the profession; or (b) has
been suspended for the same or similar misconduct, and intentionally engages in
further similar acts of misconduct. To further support disbarment, the aggravating
factors found by the referee outweighed the degree of mitigation presented by
respondent (ROR-14-15).
25
A judgment must be fair to society, fair to the respondent, and severe enough
to deter others who may be tempted to become involved in like violations. Spear,
887 So.2d 1246, citing The Florida Bar v. Lord, 433 So.2d 983, 986 (Fla. 1983).
Respondents serious pattern of misconduct harmed Ms. DePaolo and the entire
legal profession. Thus, the referees recommendation of permanent disbarment is
appropriate based upon respondents extensive disciplinary history and his inability
to be rehabilitated.
26
CONCLUSION
Based upon the facts of this case and respondents continued similar
misconduct, it is the bars position that the referees recommendation of permanent
disbarment is warranted. Respondent has repeatedly violated rules that go to the
very heart of our judicial process, a nd he has repeatedly failed to abide by the high
standards expected of attorneys in this State.
WHEREFORE, The Florida Bar submits that this Court should affirm the
referees recommendation of permanent disbarment and payment of costs.
Respectfully submitted,
JOHN F. HARKNESS, JR.,
Executive Director
The Florida Bar
651 E. Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600
Florida Bar No. 123390
KENNETH LAWRENCE MARVIN
Staff Counsel
The Florida Bar
651 E. Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600
Florida Bar No. 200999
AND
27
28
JOANN MARIE STALCUP Bar Counsel The Florida Bar 1000 Legion Place, Suite 1625 Orlando, Florida 32801-1050 (407) 425-5424 Florida Bar No. 972932 [email protected]
By:
JoAnn Marie Stalcup, Bar Counsel
CERTIFICATE OF SERVICE
I certify that this document has been E-filed with The Honorable Thomas D.
Hall, Clerk of the Supreme Court of Florida, using the E-Filing Portal; a copy has
been furnished by U.S. Mail to, Mark F. Germ ain, R espondent, Law Office of Mark
F. Germain, 2305 Hutchinson Avenue, Leesburg, Florida 34748-5436,
[email protected]; with a copy furnished to Staff Counsel of The Florida
Bar at his designated e-mail address of [email protected], on thi s 31st day of
October, 2013.
JoAnn Marie Stalcup, Bar Counsel
29
CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN
Undersigned counsel does hereby certify that this Brief is submitted in 14
point proportionately spaced Times New Roman font, and that this brief has been
filed by e-mail in accord with the Courts order of October 1, 2004. Undersigned
counsel does hereby further certify that the electronically filed version of this brief
has been scanned and found to be free of viruses, by Norton AntiVirus for
Windows.
JoAnn Marie Stalcup, Bar Counsel
30
TABLE OF CONTENTSTABLE OF CITATIONSSYMBOLS AND REFERENCESSTATEMENT OF THE CASESTATEMENT OF THE FACTSSUMMARY OF ARGUMENTARGUMENTISSUE ITHE REFEREES RECOMS AND FINDINGS OF GUD BY THE COMPETENT, IDENCE.
ISSUE IITHE REFEREES RECOMPERMANENT DISBARMENT THE FACTS, CASE LAWMPOSING LAWYER SANCT
CONCLUSIONCERTIFICATE OF SERVICECERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN
Top Related