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IN THE SUPREME COURT OF FLORIDA

REPORT OF REFEREE

1. SUMMARY OF PROCEEDINGS:

The undersigned was originally appointed to preside in the above disciplinary action by order of the Supreme Court of Florida, dated July 19, 1996, and by order of Walter N. Colbath, Chief Judge of the Fifteenth Judicial Circuit, dated May 7, 1999. The pleadings and all other papers filed with the undersigned, which are forwarded to the Court, constitute the entire record for this case. The final hearing was held on January 13 and January 14, 2000.

During the course of these proceedings, the petitioner appeared pro se and The Florida Bar was represented by Lorraine C. Hoffmann, Bar Counsel.

II. FINDINGS OF FACT:

Based upon the testimony presented to me, I find as follows:

1. The Florida Supreme Court has prescribed the following criteria the petitioner must establish, by clear and convincing evidence, in order to support a petition for reinstatement:

A. strict compliance with the specific conditions of the disciplinary order;

B. evidence of unimpeachable character and moral standing in the community;

C. clear evidence of a good reputation for professional ability;

D. evidence of a lack of malice and ill feeling by the petitioner toward those who by duty were compelled to bring about the disciplinary proceedings;

E. personal assurances, supported by corroborating evidence revealing a sense of repentance, as well as a desire and intention of the petitioner to conduct himself in an exemplary fashion in the future;

F. in cases involving misappropriation or theft, restitution is also important. See, Petition of Wolf, 257 So. 2d 547, 549 (Fla. 1972) and its progeny.

2. The petitioner testified at length concerning the above criteria, as did his numerous witnesses.

3. 1 find that the petitioner has not met the criteria set forth in Wolf. Specifically, petitioner has failed to evidence an unimpeachable character or a true sense of repentance and a desire and intention to conduct himself in an exemplary fashion in the future.

4. 1 have come to the above conclusions due to the following facts which were presented to me in the final hearing in this matter:

A. Petitioner represented Walter Small in a civil matter. Petitioner accepted the representation in April 1997. Petitioner further accepted a $10,000 fee from Small. When petitioner took said fee, he knew disciplinary action against him was imminent. In anticipation of such disciplinary action, and anticipating a loss of is income due to suspension and/or disbarment, petitioner and his wife put their home on the market. Yet, petitioner intentionally failed to inform Small that the possibility existed that he would be unable to complete the representation.

B. After being notified of his suspension by the Supreme Court on or about July 17, 1997, petitioner failed to notify Small for a period of months. He further failed to include Small in his affidavit to The Florida Bar listing those clients to whom he gave notice of his suspension.

C. More disturbing is petitioner's failure to withdraw from the representation of Small within the thirty (30) day period set forth in the suspension order. Petitioner did not file a Motion to Withdraw from Small's case until October 1997, well after his suspension had become effective, on August 17, 1997. Additionally, petitioner's pleadings failed to set forth the true reason for his withdrawal, failed to indicate that he was not acting as an attorney (he signed his name and indicated his bar number) and failed to reveal that his client had no active attorney since early August. Petitioner was prohibited from practicing law on or about August 18, 1997 and thereafter until reinstated by the Supreme Court of Florida. Petitioner submitted this pleading to the court replete with omissions, and a misrepresentation which prejudiced his client. As he did so, without giving any notice of his suspended status, such constitutes the practice of law while he was under suspension.

D. Petitioner also gave Mr. Small a small refund check which bounced. Petitioner never made good on the check.

E. Petitioner never returned all of Mr. Small's trial documents to him until after the date on which his case was dismissed for failure to obtain successor counsel.

F. I find that petitioner's actions in the Small case demonstrate a lack of honesty and candor toward his client and the court.

G. I further heard testimony from Kevin Law, Claims Adjuster for the Florida Department of Insurance. Mr. Law testified at length regarding his office's investigation of petitioner. The Department of Insurance audited certain defunct insurance companies and found that those companies had remitted checks to petitioner in connection with certain representation. The checks were each in the amount of $115 or $215. In aggregate, these checks totaled approximately $3000. Pursuant to the testimony of William Flanagan, The Florida Bar's investigator, it was established that petitioner failed to file the contemplated litigation and further failed to return such monies to the subject insurance companies. Although there is a dispute as to whether these monies were costs or fees, I find from all the evidence that these monies were remitted to petitioner as deposits for costs. Therefore, petitioner should have returned such costs when the contemplated litigation did not go forward. Petitioner failed to do so thereby misappropriating these funds. Mr. Law testified that but for his office's budgetary constraints, petitioner would have been criminally prosecuted by the Department for his actions.

H. Misappropriation of funds is one of the most reprehensible acts an attorney can commit. Petitioner has done so on more than one occasion, and was disciplined for such misconduct. Having committed similar misconduct again, I find no evidence to support petitioner's claim that his is rehabilitated.

I. Additionally, I heard testimony from David Watner, Esq., Mr. Krasnove's law partner who was also a client. Mr. Watner presented compelling evidence that petitioner failed to timely advise him and opposing counsel of his suspension. Petitioner himself admitted excluding Mr. Watner from the mandatory postsuspension affidavit he filed with The Florida Bar.

J. I have also taken judicial notice of petitioner's suspension in New York, until September, 2003.

III. RECOMMENDATION ON REINSTATEMENT:

For the reasons set forth above, petitioner has not fully met the criteria set forth in Wolf. Therefore he should not be reinstated to the practice of law at this time.

IV. PERSONAL HISTORY:

The petitioner is 51 years old and was admitted to the practice of law in Florida on May 10, 1974.

V. STATEMENT AS TO PAST DISCIPLINE:

Florida Bar File No. 82-03,363 - Petitioner received a private reprimand for neglect.

Florida Bar File No. 85-14,305 - Petitioner received a public reprimand for personal behavior.

Florida Bar File No. 95-50,144, Supreme Court Case No. 86,666 - Petitioner was suspended for one (1) year for certain trust accounting violations.

Florida Bar File No. 95-50,266, Supreme Court Case No. 91,915 - Petitioner was suspended for one (1) year. Said suspension was to run concurrently with the one (1) year suspension ordered in Supreme Court Case No. 86,666. It is from these suspension orders that petitioner was seeking reinstatement.

VI. STATEMENT OF THE COSTS OF THE PROCEEDING:

I find that reasonable costs have been incurred by The Florida Bar and that the same should be assessed against the petitioner. These costs total $2,509.30. Dated this day of January, 2000.

RICHARD L. OFTEDAL, REFEREE

Copies furnished to:

Lorraine C. Hoffmann, Bar Counsel

Keith Martin Krasnove, Petitioner

 

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