The Florida Bar v. Cyrus A. Bischoff ( 2017 )

Supreme Court of Florida
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No. SC14-2049
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THE FLORIDA BAR,
Complainant,
vs.
CYRUS A. BISCHOFF,
Respondent.
[March 2, 2017]
PER CURIAM.
We have for review a referee’s report recommending that Respondent, Cyrus
A. Bischoff, be found guilty of professional misconduct in violation of the Rules
Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for
one year. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the
referee’s findings of fact, recommendations as to guilt, and the recommended
sanction, and suspend Bischoff for one year.
FACTS
In October 2014, The Florida Bar filed a complaint against Respondent
Bischoff, alleging that he engaged in misconduct in violation of the Bar Rules. A
referee was appointed to consider the matter. Following a hearing, the referee
submitted her report for the Court’s review, in which she made the following
findings and recommendations.
Bischoff was retained by a client to represent her in a lawsuit filed in the
United States District Court for the Southern District of Florida. Bischoff filed
three versions of the complaint in 2011 and 2012; the final version, the Second
Amended Complaint, raised claims against three defendants for whistleblower
protection, unlawful discharge, and malicious or wrongful garnishment. On May
24, 2013, Judge Robert Scola issued an “Order Dismissing Case with Prejudice,”
finding that Bischoff and the client had engaged in discovery violations that
demonstrated a clear pattern of contumacious conduct. Subsequently, on February
24, 2014, Magistrate Judge Alicia Otazo-Reyes issued an order granting a motion
for attorney’s fees against Bischoff individually, finding that Bischoff knowingly
and recklessly pursued frivolous claims, engaged in discovery-related misconduct,
and failed to comply with court orders. As a sanction, the magistrate ordered
Bischoff to pay $77,790.49 in fees and costs.
Bischoff’s conduct in the federal case is detailed extensively in Judge
Scola’s and Magistrate Judge Otazo-Reyes’s orders. Bischoff and his client did
not respond to the defendants’ requests for discovery, and they refused to attend
the client’s deposition. The defendants were forced to file motions seeking to
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compel discovery and the client’s deposition. On November 19, 2012, Bischoff
electronically filed a “Notice of Serving Responses to Discovery Requests.”
Magistrate Judge Otazo-Reyes found that Bischoff, using the federal court’s
electronic filing system, linked the Notice to a pending motion to compel written
discovery; as a result, the magistrate judge believed that Bischoff had provided the
requested discovery materials, and she denied the motion to compel as moot. The
defendants then filed a motion for reconsideration asserting that Bischoff had not
actually submitted any responses to any of the pending discovery requests. The
magistrate judge held a hearing on the motion for reconsideration, as well as on
other pending discovery motions, on December 21, 2012. Bischoff failed to attend
the hearing, but he appeared by telephone. Following this hearing, the magistrate
judge entered an order granting motions to compel the client’s deposition,
requiring her to sit for deposition no later than January 31, 2013, and ordering
Bischoff and the client to fully respond to the outstanding discovery requests,
without objections, by January 7, 2013; the order reserved ruling on the issue of
sanctions.
Following the December 2012 order, in early 2013, the defendants filed a
motion to dismiss asserting that Bischoff either did not provide discovery materials
by January 7, or that the material he did provide was incomplete or insufficient.
The motion also asserted that Bischoff was proposing to schedule the client’s
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deposition after the January 31 deadline. Ultimately, the client did sit for her
deposition on January 31, 2013. However, she refused to answer any questions
submitted by two of the three defendants. In a telephonic hearing, Magistrate
Judge Otazo-Reyes clarified that her order of December 21, 2012, required the
client to appear for questioning by all three defendants. Nonetheless, the client,
counseled by Bischoff, continued to refuse questioning. Several days after the
deposition concluded, Bischoff filed an objection to the magistrate judge’s
telephonic ruling. Judge Scola overruled the objection, finding that Bischoff’s
arguments, and his persistence in claiming that Magistrate Judge Otazo-Reyes’s
own order did not mean what she said it meant, showed a profound lack of respect
for the court.
On February 12, 2013, Magistrate Judge Otazo-Reyes held a second
discovery hearing. During this hearing, the magistrate judge found, among other
things: that there was no justification for the client’s refusal to appear for her
deposition in November 2012; that Bischoff and the client did not fully comply
with the magistrate judge’s order of December 21, 2012, setting discovery
deadlines; that Bischoff’s November 19, 2012, notice of serving responses to
discovery, when in fact no discovery responses were provided, was misleading;
and that Bischoff and the client had showed flagrant disrespect for the court.
Based on these findings, Magistrate Judge Otazo-Reyes directed the defendants to
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submit affidavits documenting their attorneys’ fees and costs. She allowed
Bischoff and the client one week to respond to the affidavits; however, Bischoff
and the client did not respond within the time allowed. Accordingly, on March 20,
2013, the magistrate judge issued an order awarding the defendants attorneys’ fees
and costs; the client was ordered to pay the sanction by April 30, 2013.
The client did not pay the attorneys’ fee award by the April 30 deadline, and
on May 14, 2013, Judge Scola issued an order directing her to show cause as to
why the case should not be dismissed. On May 24, 2013, Judge Scola issued an
order dismissing the case with prejudice. In this dismissal order, Judge Scola
found that Bischoff’s November 19, 2012, notice of serving discovery responses,
when no such responses were provided, was a misrepresentation so blatant and
deceitful that it must be viewed as an intentional misrepresentation to the court.
Judge Scola also found that the client’s appeals of the magistrate judge’s orders,
through Bischoff as her attorney, showed a profound lack of respect for the court.
Accordingly, Judge Scola concluded that the client had engaged in a clear pattern
of contumacious conduct that warranted the dismissal of her case.
Following the dismissal, Bischoff withdrew as counsel for the client. In
October 2013, two of the defendants filed a motion for attorney’s fees and costs,
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pursuant to 28 U.S.C. § 1927.1 Magistrate Judge Otazo-Reyes held a hearing on
the motion, and on February 24, 2014, she issued her order directing Bischoff to
pay $77,790.49 in attorney’s fees.
In the disciplinary case at hand, it is clear that the referee relied on Judge
Scola’s and Magistrate Judge Otazo-Reyes’s detailed orders in making her findings
of fact.2 However, it is also apparent that the referee independently reviewed the
docket and proceedings in the federal suit, and used this information to form her
own conclusions. Indeed, the referee found that Bischoff’s conduct demonstrated a
lack of competency in handling the client’s case, and that his misrepresentations to
the court and other conduct served to obstruct the discovery process.
First, the referee found that Bischoff lacked the legal knowledge and skill
necessary to represent the client. Though Bischoff had practiced in federal court
for seven years before the client’s case, the referee found his actions demonstrated
that he did not understand the basic requirements to litigate cases in a federal court.
1. 28 U.S.C. § 1927 provides that an attorney “who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.”
2. This Court has stated that “the referee in a disciplinary proceeding may
consider judgments entered in other tribunals, and may properly rely on such
judgments to support his or her findings of fact.” Fla. Bar v. Rosenberg, 169 So.
3d 1155, 1159 (Fla. 2015); Fla. Bar v. Gwynn, 94 So. 3d 425, 430 (Fla. 2012).
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He did not comply with the Federal Rules of Civil Procedure in amending his
complaint, and he made no effort to communicate with opposing counsel in filing
motions for extensions of time. The referee further found that Bischoff failed to
inform himself on the applicable law. Every version of the complaint that he filed
failed to allege whether the client had exhausted her administrative remedies. And,
even more significantly, each version of the complaint also failed to allege an
essential element of the wrongful wage garnishment claim—that the client had
been involuntarily separated from a prior employer, making her exempt from
garnishment under the statute.3 Additionally, the referee found that Bischoff filed
a motion to certify class without even minimally investigating whether other class
members existed. Finally, he filed frivolous objections or appeals to Judge Scola
challenging Magistrate Judge Otazo-Reyes’s authority to rule on motions. The
referee found that the magistrate judge explained to Bischoff the law and the scope
3. On this point, the referee noted that there was evidence the client asked to
be terminated by the prior employer. Bischoff testified that he did not recall
whether he discussed the involuntary separation issue with his client. The referee
found this statement was not credible, concluding: “The undersigned finds that, if,
Mr. Bischoff had not in fact discussed [the client’s] separation from her employer
and investigated the issue to any depth he would have been at the very least
ineffective, negligent, and/or naïve.” The referee noted Bischoff may have been
able to allege that, because of a hostile working environment, the client’s request to
be terminated was not truly voluntary. But, the referee found that Bischoff’s
failure to raise the issue at all “speaks volumes about his legitimate intention and
that he did in fact possess the knowledge that he could not meet the threshold
requirements under the law.”
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of her authority to make recommendations on dispositive motions; nonetheless,
Bischoff’s appeals continued to challenge her authority. The referee noted that
while Bischoff did have a duty to use the law for the fullest benefit of his client’s
cause, he also had a duty not to abuse the legal procedure.
In addition to his lack of competence, the referee found that Bischoff
obstructed the discovery process, refused to comply with court orders, filed
frivolous pleadings and objections to the magistrate judge’s rulings, and made false
statements to the federal court. Bischoff did not timely comply with any of the
defendants’ requests for production of documents or motions to compel written
discovery, and he refused to produce his client for a deposition until the last
possible day. He filed frivolous objections or appeals regarding Magistrate Judge
Otazo-Reyes’s orders, raising challenges to her authority to rule. And he refused
to comply with several of the magistrate judge’s orders—indeed, the referee noted
that instead of moving for a stay of execution, or pursuing any one of the numerous
avenues available to him, Bischoff simply chose not to comply.
We note in particular that the referee found Bischoff made
misrepresentations to the federal court. On November 19, 2012, he filed a notice
of serving responses to discovery requests, in which he misrepresented to the
magistrate judge that he had complied with a motion to compel discovery when he
had not. Given his actions, the referee found that Bischoff, in effect, intentionally
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concealed discovery documents. Additionally, the referee found that Bischoff
failed to appear for the discovery hearing on December 21, 2012, and that he gave
inconsistent reasons for his absence. Bischoff initially told Magistrate Judge
Otazo-Reyes that he did not receive notice of the hearing. This contention was
refuted by entries on the docket showing that Bischoff was electronically served
with two orders setting the discovery matters for hearing. Bischoff then stated that
he received an e-mail from opposing counsel indicating that the hearing would be
reset; however, Bischoff knew, or should have known, that in a federal court only
the judge is authorized to reset a hearing, and that the magistrate judge had not
issued any such order. Ultimately, the referee found that Bischoff was leaving for
a vacation on the day of the hearing, and he simply chose not to attend.
Based on these facts, the referee recommends that Bischoff be found guilty
of violating Bar Rules 4-1.1 (a lawyer shall provide competent representation to a
client); 4-3.1 (a lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so that
is not frivolous); 4-3.3 (a lawyer shall not knowingly make a false statement of fact
or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer); 4-3.4(a) (a lawyer must not
unlawfully obstruct another party’s access to evidence or otherwise unlawfully
alter, destroy, or conceal a document or other material that the lawyer knows or
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reasonably should know is relevant to a pending or a reasonably foreseeable
proceeding); 4-3.4(c) (a lawyer must not knowingly disobey an obligation under
the rules of a tribunal except for an open refusal based on an assertion that no valid
obligation exists); 4-3.4(d) (a lawyer must not, in pretrial procedure, make a
frivolous discovery request or intentionally fail to comply with a legally proper
discovery request by an opposing party); and 4-8.4(d) (a lawyer shall not engage in
conduct in connection with the practice of law that is prejudicial to the
administration of justice).
The referee found six aggravating factors in this case: (1) dishonest or
selfish motive; (2) pattern of misconduct; (3) multiple offenses; (4) refusal to
acknowledge the wrongful nature of the conduct; (5) vulnerability of the victim;
and (6) substantial experience in the practice of law. The referee also considered
three mitigating factors: (1) no prior disciplinary record; (2) evidence showing
good character and reputation; and (3) other penalties or sanctions.
Ultimately, based on her findings of fact, recommendations as to guilt, the
aggravating and mitigating factors, and case law, the referee recommended that
Bischoff be suspended from the practice of law for one year, and that he be ordered
to pay the Bar’s costs. Bischoff seeks review of the referee’s recommendations,
challenging the fairness of the proceedings before the referee, the referee’s
recommendations as to guilt, and the recommended sanction.
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ANALYSIS
Bischoff first argues that he was denied a fair and impartial hearing before
the referee, and that the cumulative effect of the referee’s procedural errors require
that the case be remanded for a new hearing. We do not agree. Bischoff primarily
relies on two alleged errors: (1) although he elected not to testify, the referee
questioned him after the parties rested their cases, he was not placed under oath for
such questioning, and the referee relied on Bischoff’s answers to these questions in
making her findings of fact and recommendations as to guilt; and (2) the Bar was
also allowed to cross-examine Bischoff after it rested its case. This Court has long
held that Bar disciplinary cases are neither civil nor criminal, but rather are “quasi-
judicial administrative proceedings.” See R. Regulating Fla. Bar 3-7.6(f)(1); Fla.
Bar v. Vannier, 498 So. 2d 896, 898 (Fla. 1986). Accordingly, the referee is not
bound by the technical rules of evidence, hearsay evidence generally is admissible,
and the respondent has no right to confront witnesses. Vannier, 498 So. 2d at 898.
Moreover, Bar Rule 3-7.6(j) provides that, unless the respondent in a disciplinary
case claims a privilege or right properly available under a federal or state law, the
respondent may be called as a witness by the Bar and questioned on “all matters
material to the issues.” Construing these principles together, we conclude the
referee is authorized to ask questions of the respondent to clarify relevant facts and
issues, even if the respondent does not testify as a witness. And, in any
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disciplinary proceeding, the respondent has an obligation to answer the referee’s
questions truthfully, regardless of whether he or she is placed under oath. See R.
Regulating Fla. Bar 4-8.1(a) (a lawyer in connection with a disciplinary matter
shall not knowingly make a false statement of material fact).
Here, the referee asked Bischoff a series of questions after both parties
rested their cases. Bischoff’s counsel did not raise any objection to the referee’s
questions. In fact, counsel stated he had no objection to the questioning. As a
result, Bischoff has waived the right to challenge the referee’s questioning now.
See Fla. Bar v. Behm, 41 So. 3d 136, 143 (Fla. 2010) (concluding that attorney
waived review of issue where the issue was not presented to the referee). Counsel
did object when the referee permitted the Bar to cross-examine Bischoff, arguing
that the Bar had concluded the evidentiary portion of its case. Although the referee
allowed the cross-examination to proceed over counsel’s standing objection, she
also offered Bischoff’s counsel the same opportunity to question Bischoff—though
he too had rested his case—in order to clarify any issues that he felt should be
addressed. Accordingly, there is no evidence that Bischoff was prejudiced by the
Bar’s cross-examination.
Turning next to the referee’s recommendations as to guilt, Bischoff
challenges the referee’s recommendation that he be found guilty of violating Bar
Rules 4-1.1, 4-3.1, 4-3.3, and 4-3.4(a), (c), and (d). To the extent he challenges the
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referee’s findings of fact as to each rule violation, the Court’s review of such
matters is limited, and if a referee’s findings of fact are supported by competent,
substantial evidence in the record, this Court will not reweigh the evidence and
substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So. 2d 79,
86 (Fla. 2000); see also Fla. Bar v. Jordan, 705 So. 2d 1387, 1390 (Fla. 1998). To
the extent Bischoff challenges the recommendations as to guilt, the Court has
stated that the referee’s factual findings must be sufficient under the applicable
rules to support the recommendations. See Fla. Bar v. Shoureas, 913 So. 2d 554,
557-58 (Fla. 2005).
As we have discussed, Bischoff’s conduct during the client’s case is well
documented in Judge Scola’s May 24, 2013, “Order Dismissing Case with
Prejudice,” and in Magistrate Judge Otazo-Reyes’s February 24, 2014, order
imposing sanctions. We conclude that the facts laid out in these orders, and
supported by the referee’s own review of the record, provide ample support for the
referee’s findings of fact and recommendations as to guilt. Bischoff failed to act
competently on behalf of the client, in violation of Bar Rule 4-1.1, when he failed
to comply with the Federal Rules of Civil Procedure, failed to adequately research
his client’s causes of action to know what elements were required, and filed
objections and appeals challenging Magistrate Judge Otazo-Reyes’s authority to
hear specific motions, where her authority to hear those motions and enter orders
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or make recommendations was specifically outlined in federal law. We agree with
the referee that these objections and appeals, and other of Bischoff’s pleadings,
were also frivolous, in violation of Bar Rule 4-3.1. Additionally, Bischoff made
false statements of fact or law to a tribunal, in violation of Bar Rule 4-3.3, when he
filed a false notice indicating that he had served discovery responses, when in fact
he did not provide any such responses. And finally, Bischoff obstructed the
defendants’ access to evidence, knowingly disobeyed court orders, and refused to
comply with legally proper discovery requests, in violation of Bar Rules 4-3.4(a),
(c), and (d), when he ignored motions for discovery filed by the defendants and
refused to provide the discovery materials; ignored the magistrate’s discovery
order of December 21, 2012, directing the client to file responses to discovery
requests without objections by January 7, 2013; and counseled his client during her
deposition on January 31, 2013, to ignore the magistrate’s direct order to answer
questions from all three defendants. Bischoff’s discovery violations significantly
delayed the client’s lawsuit, and ultimately led Judge Scola to dismiss the suit.
Given this evidence in the record, we approve the referee’s findings of fact and
recommendations as to guilt in full.
Based on his misconduct, the referee recommends that Bischoff be
suspended from the practice of law for one year. Bischoff urges the Court to
disapprove this sanction. In reviewing a referee’s recommended discipline, this
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Court’s scope of review is broader than that afforded to the referee’s findings of
fact because, ultimately, it is the Court’s responsibility to order the appropriate
sanction. See Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art.
V, §15, Fla. Const. However, generally speaking, this Court will not second-guess
the referee’s recommended discipline as long as it has a reasonable basis in
existing case law and the Florida Standards for Imposing Lawyer Sanctions. See
Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).
The referee’s findings in this case demonstrate that Bischoff knowingly and
recklessly pursued frivolous claims, he repeatedly engaged in discovery-related
misconduct, and he failed to comply with court orders and rules. Our decision in
Florida Bar v. Rosenberg, 169 So. 3d 1155 (Fla. 2015), provides guidance. In that
case, Rosenberg represented the defendants in a breach of contract case. He
refused to timely respond to the plaintiffs’ requests for discovery, and he filed
objections to those discovery requests that continued to raise objections that the
presiding judge had overruled or concluded were waived. As a result, the judge
issued an order granting the plaintiffs’ motion for sanctions. Id. at 1155. The
judge also directed Rosenberg to show cause why he should not be sanctioned for
bad faith conduct, and set a hearing on the matter. Rosenberg declined to testify at
the hearing. Accordingly, the judge issued an order imposing attorney’s fees. At
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the time the Court considered his case, Rosenberg still had not paid any portion of
the attorney’s fees. Id. at 1158.
On review in Rosenberg, the Court approved the referee’s recommendations
as to guilt, noting:
Rosenberg seeks to relitigate Judge Gerber’s findings and conclusions
as to his bad faith conduct in the civil litigation. Such arguments are
not proper in this disciplinary case. The issue here is not whether
Rosenberg properly raised certain objections to the plaintiffs’ motions
to compel production; however, he may not repeatedly continue to
raise those same objections after they have already been considered
and ruled upon, and he may not refuse to comply with the numerous
orders to compel entered by the circuit courts in both Miami–Dade
County and Palm Beach County.
Id. at 1160. The Court, however, disapproved the referee’s recommended
sanction, finding that “Rosenberg’s repeated failures to comply with court orders
and his bad faith conduct, together with the aggravating factors found by the
referee, warrant a suspension longer than ninety-one days.” Id. at 1161-62.
Indeed, the Court concluded that for more than a year, Rosenberg had refused to
comply with numerous circuit court orders requiring him to produce documents; he
continued to raise objections to production that had already been considered and
ruled upon by the circuit court; he consistently refused to accept the wrongful
nature of his actions; and he had not paid any portion of the sanctions entered
against him, even though the circuit court’s order was affirmed on appeal. Id. at
1162. The Court concluded that a one-year suspension was appropriate.
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We conclude that Bischoff’s conduct warrants the same sanction as that in
Rosenberg. Bischoff, like Rosenberg, refused to respond to valid and legally
proper discovery requests, and he did not comply with court orders, resulting in
sanctions. We note that Bischoff also made misrepresentations to a federal court,
and that his conduct contributed to the dismissal of his client’s case with prejudice.
Nonetheless, we have considered the referee’s findings in aggravation and
mitigation, particularly the referee’s finding in the report that the client was
challenging to work with, and the fact that Bischoff has paid in full the sanctions
ordered by Magistrate Judge Otazo-Reyes, and we conclude that a one-year
suspension is appropriate.
CONCLUSION
Accordingly, Cyrus A. Bischoff is hereby suspended for one year. The
suspension will be effective thirty days from the date of this opinion so that
Bischoff can close out his practice and protect the interests of existing clients. If
Bischoff notifies this Court in writing that he is no longer practicing and does not
need the thirty days to protect existing clients, this Court will enter an order
making the suspension effective immediately. Bischoff shall fully comply with
Rule Regulating the Florida Bar 3-5.1(h). Further, Bischoff shall accept no new
business from the date this opinion is filed until he is reinstated.
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Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Cyrus A. Bischoff in
the amount of $4,340.00, for which sum let execution issue.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and
POLSTON, JJ., concur.
LAWSON, J., did not participate.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.
Original Proceeding – The Florida Bar
John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida;
Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida; and Jennifer
R. Falcone, Bar Counsel, The Florida Bar, Miami, Florida,
for Complainant
Alan Martin Medof, Boca Raton, Florida,
for Respondent
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