The Florida Bar v. Zana Holley Dupee , 40 Fla. L. Weekly Supp. 171 ( 2015 )

Supreme Court of Florida
____________
No. SC13-921
____________
THE FLORIDA BAR,
Complainant,
vs.
ZANA HOLLEY DUPEE,
Respondent.
[March 26, 2015]
PER CURIAM.
We have for review a referee’s report recommending that Respondent Zana
Holley Dupee be found guilty of professional misconduct and be suspended from
the practice of law for ninety days followed by two years’ probation. We have
jurisdiction. See art. V, § 15, Fla. Const. Due to the serious nature of the
misconduct, we find that more severe discipline is required and suspend
Respondent from the practice of law for one year.
FACTS
The Florida Bar filed a complaint against Respondent alleging multiple
counts of professional misconduct. The Court referred the complaint to a referee,
who conducted disciplinary proceedings including an evidentiary hearing and
submitted a report including findings of fact, recommendations as to guilt, and
recommendations as to discipline.
The Referee’s Findings of Fact
The referee made the following findings of fact. Respondent represented the
wife in a dissolution of marriage action filed by the client’s husband in July 2010.
Respondent’s client had a credit union account in her name only with over
$480,000 in it. After the dissolution action was filed and after meeting with
Respondent to discuss representation, the client withdrew the money in the
account, closed the account, and had the credit union issue a cashier’s check in the
amount of $482,980.46, payable to “Parenting Education Charitable Trust.”
Respondent had suggested the name to use on the check, became aware of the
existence of the check shortly after its issuance, and knew that no charitable trust
by that name existed. This check was never negotiated and remained in the client’s
possession for the next eleven months, until she redeposited it into a new account
at the same credit union and then moved it to an already existing account at a bank.
Because the named payee was fictitious and the check was never negotiated, the
money represented by the cashier’s check remained the property of Respondent’s
client. See § 673.4041(2), Fla. Stat. (2014).
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In late August and early September 2010, respectively, the husband’s
attorney served on Respondent a request for production and standard family law
interrogatories. Respondent did not provide timely responses to these discovery
requests. The husband’s counsel filed a motion to compel, which the trial court
granted. In December 2010, Respondent served answers to the standard family
law interrogatories and a written response to the husband’s request for production.
She also filed a family law financial affidavit signed by the wife. The only cash
asset listed in the financial affidavit as being in the wife’s name only was a
checking account containing $16,285.40. The affidavit did not mention the
cashier’s check then in the wife’s possession. The affidavit was therefore false and
Respondent submitted it to the court knowing that it was false.
In the wife’s answers to the standard family law interrogatories, under the
category “assets,” subcategory “intangible personal property” (item 4c), the answer
stated, “No items other than the financial account listed in the Wife’s Financial
Affidavit.” By stating that the wife’s only intangible personal property was the
account listed in the affidavit, the answer Respondent served on behalf of the wife
was false and Respondent knew it was false. Item 4e called for disclosure of
“financial accounts,” and the answer read, “These are listed in the Wife’s Financial
Affidavit. Copies of statements are also included in the documents being produced
in response to Husband’s Request to Produce.” Item 4f called for “closed financial
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accounts.” The answer read, “Copies of statements are included in the documents
being produced in response to Husband’s Request to Produce.” The answers to
items 4e and 4f were incomplete and misleading. Florida Rule of Civil Procedure
1.340, Interrogatories to Parties, provides that interrogatory answers that refer to
other records must be “in sufficient detail to permit the interrogating party to locate
and to identify, as readily as can the party interrogated, the records from which the
answer may be derived or ascertained.” Respondent knowingly failed to provide
truthful and complete disclosure of material information sought in discovery.
The request to produce, in item 6, asked for banking information for the
previous four years in three categories, “accounts,” “records,” and “checks and
money orders.” The request specified the husband’s attorney’s office as the place
of production. The response served by Respondent on behalf of the wife stated,
“The following disclosures and documents as set out below are available for
inspection and copying at the office of the undersigned.” The responses to items
6a and 6b, which requested bank account information and records, stated that bank
account records, including those for the previously mentioned credit union
account, were “available for inspection and copying at the office of the
undersigned.” No response was provided for item 6c, which requested “all
cashier’s checks, money orders, or certified checks, in your possession or under
your control.”
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Although the husband’s request to produce specified the husband’s counsel’s
office as the place of production and the husband’s motion to compel compliance
had been granted in December 2010, Respondent did not produce the requested
items until September and October of 2011. Respondent did not object to the
specified place of production or seek a protective order. Under Florida Family
Law Rule of Procedure 12.285, Mandatory Disclosure, Respondent was required to
produce the requested documents, including the cashier’s check. She knowingly
failed or refused to produce documents in response to the request for production.
While the dissolution proceeding was pending, Respondent submitted to
counsel for the husband a proposed settlement agreement. The proposal included
dispositions of various items and categories of the parties’ assets and provided that
the wife would receive all funds in accounts held solely in her name. This
proposal was delivered at a time when Respondent’s client still held the
undisclosed cashier’s check in an amount exceeding $480,000.
On September 9, 2011, the husband’s attorney took the wife’s deposition.
Respondent was present. Knowing that some years earlier, the husband had
transferred $100,000 to the wife as a conciliation following some marital discord,
the husband’s attorney asked her if she still had that money. The questioning
brought out testimony that the wife had withdrawn the money from the account
where she had it, along with other money in the account, and had a check issued
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“for charity,” after which she changed her mind about donating the money to
charity and redeposited it in a new account. When the husband’s attorney asked
her how much money she had in the account, she said she could not recall. When
he asked her whether it was less than $200,000, she said she could not recall. This
was about one month after she had redeposited the proceeds of the cashier’s check
to an account at the credit union, shortly after which she moved it to an existing
account at a bank.
When her client testified in deposition, in Respondent’s presence, that she
did not know whether the cashier’s check was written for an amount that was less
than $200,000, the testimony was false, and Respondent knew it was false. The
wife’s testimony that the funds had been withdrawn from the account for the
purpose of making a donation to a charity was also false because, as Respondent
knew, her client had never intended to use the money to fund a trust or make a
charitable donation. The referee found that Respondent failed to take any action to
correct her client’s false testimony so as to prevent the possibility of committing a
fraud on the court.
After the deposition testimony in which the wife disclosed that she had
withdrawn an unspecified amount of money, but at least $100,000, from her credit
union account and had a check issued “for charity,” which she later redeposited,
the husband’s attorney scheduled a hearing on his then pending motions to compel
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discovery. On the eve of the scheduled hearing date, September 20, 2011,
Respondent delivered to the husband’s counsel a box of documents which she said
contained items responsive to his original request for production filed more than a
year earlier. Then, in October, the wife signed and Respondent served a corrected
financial affidavit, which disclosed that the wife’s checking account balance was
$437,422.04. This money was derived from the proceeds of the redeposited
cashier’s check, some of the money having been spent in the interim. Before he
had seen the corrected financial affidavit, the husband’s attorney called
Respondent to ask if she could tell him the source of the interest income the wife
had reported on her 2010 tax return. That same day, Respondent delivered copies
of additional records, including those showing the existence of the former credit
union account and the issuance of the cashier’s check.
After the final judgment was entered in the dissolution case, the court
allowed the former husband to visit the former marital home for the purpose of
retrieving personal items that had been awarded to him as nonmarital property but
not yet given to him. One item on his list of personal items was described as a
“coin collection from childhood in fireproof safe in study.” When he went to the
home to get the item, he could not find it. The former wife, who disputed his
ownership of any coins, had removed some coins from the home and given them to
Respondent so the former husband would not be able to take them. Respondent
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did not disclose that she had the coins until she was ordered to produce them in a
postjudgment contempt proceeding. When she received the coins from her client,
Respondent knew that the husband had asserted or might assert a claim to the coins
or at least some of them.
Referee’s Recommendations as to Guilt
The referee recommends that Respondent be found guilty of the following
rule violations: Rule Regulating the Florida Bar 3-4.3 (“The commission by a
lawyer of any act that is unlawful or contrary to honesty and justice . . . may
constitute a cause for discipline.”); rule 4-3.3(a)(1) (a lawyer shall not knowingly
make a false statement to a tribunal or fail to correct a false statement made to a
tribunal) and 4-3.3(b) (a lawyer representing a client in a proceeding who knows
that a person is engaging or has engaged in fraudulent conduct shall take
reasonable remedial measures); rule 4-3.4(a)-(d) (a lawyer must not obstruct a
party’s access to evidence, conceal material that is relevant to a proceeding or
counsel or assist another to do so, fabricate evidence or counsel or assist a witness
to testify falsely, disobey an obligation under the rules of a tribunal, or fail to
comply with a proper discovery request); rule 4-4.1 (in representing a client a
lawyer shall not make a false statement to a third person or fail to disclose facts to
a third person when necessary to avoid assisting in a criminal or fraudulent act);
rule 4-8.4(a) (“A lawyer shall not violate or attempt to violate the Rules of
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Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another.”); rule 4-8.4(c) (“A lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation . . . .”); and rule 5-1.1(e)-
(f) (upon receipt of property in which another person has or claims an interest, a
lawyer shall treat the property as trust property and notify the claimant of receipt of
the property).
Referee’s Recommendation as to Discipline
The referee recommends that Respondent be suspended from the practice of
law for ninety days and that upon reinstatement she be placed on probation for two
years with the conditions that she be required to attend Ethics School and a
professionalism workshop. The referee also recommends that the cost of the Bar’s
investigation and prosecution of this matter be charged to Respondent.
Petitions for Review
Respondent seeks review of the referee’s report, challenging the referee’s
findings of fact, the referee’s recommendations as to guilt, and the recommended
discipline. Respondent argues that she should not be disciplined or, in the
alternative, that the record supports only a finding of negligent misconduct
justifying disciplinary measures less severe than those recommended by the
referee.
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The Bar has also filed a petition for review and argues that the proven
misconduct calls for more severe discipline than that recommended by the referee.
The Bar argues that because Respondent is guilty of misconduct involving deceit,
dishonesty, or fraud that was committed knowingly, the appropriate measure of
discipline is suspension from the practice of law for one year.
ANALYSIS
The Court’s standard of review for evaluating a referee’s factual findings is
as follows: This 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. See Fla. Bar v. Frederick, 756 So. 2d 79, 86 (Fla. 2000); Fla. Bar v.
Jordan, 705 So. 2d 1387, 1390 (Fla. 1998). The Court has repeatedly stated that
the referee’s factual findings must be sufficient under the applicable rules to
support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So. 2d 554,
557-58 (Fla. 2005).
Respondent argues that the referee’s findings of fact are not supported by
competent, substantial evidence. With respect to the referee’s findings that
Respondent committed acts involving dishonesty or fraud, Respondent argues that
the findings are not supported by the evidence because proof of guilt of such
misconduct requires proof of wrongful intent, and the evidence failed to establish
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intent on her part. This Court has recognized that finding that an attorney has
engaged in dishonesty, fraud, deceit, or misrepresentation requires proof of intent
as a necessary element. See, e.g., Fla. Bar v. Barley, 831 So. 2d 163, 169 (Fla.
2002); Fla. Bar v. Fredericks, 731 So. 2d 1249, 1252 (Fla. 1999). Proof of the
element of intent is satisfied by showing that the attorney engaged in the conduct
deliberately or knowingly. See, e.g., Fla. Bar v. Johnson, 132 So. 3d 32, 36 (Fla.
2013); Fla. Bar v. Brown, 905 So. 2d 76, 81 (Fla. 2005). As we explain below, we
find the evidence is sufficient to support the referee’s findings that Respondent
engaged in dishonest conduct knowingly.
Respondent claims there was insufficient evidence to prove that she knew
her client had not established a charitable trust with the money she withdrew from
her credit union account. Lacking such knowledge, Respondent argues, she did not
knowingly submit a false financial affidavit or give false answers in discovery
responses on behalf of her client. Respondent argues that the record shows she did
not fail to disclose the existence of the former credit union account and the
cashier’s check, because she referred to records pertaining to the account in her
written response to the request to produce, and the records were made available to
the husband’s attorney. Respondent argues that the record shows that when she
discovered that her client still had the check, Respondent took reasonable action to
provide corrected information by filing an updated financial affidavit. Respondent
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also states that the evidence shows she took steps to correct the inaccurate
information her client provided in her deposition. Respondent also argues that the
record fails to show she knew the husband had a claim to the coins she accepted
from her client.
The Financial Affidavit and the Interrogatory Answers
About six months before the dissolution of marriage action was filed,
Respondent had provided legal advice to the wife concerning her will. The wife
told Respondent about her credit union account containing over $480,000. The
wife thought of the account as her separate property and told Respondent she did
not want her husband to receive any part of her estate. Respondent testified that
she advised the wife that by law a spouse is entitled to a share of a deceased
person’s estate, so she would not be able to completely bar her husband from
receiving any part of her estate upon her death. Respondent testified that the wife
initially wanted to make her sister the beneficiary of her estate, and Respondent
advised her she needed an alternate beneficiary also because if her sister
predeceased her, her estate would go to her husband. They discussed various
charities the wife might designate as alternate beneficiary. Respondent told the
wife about a friend of hers who owned a company that published books that were
used in classes intended to teach parents effective child-rearing methods. The
company that published the books was a for-profit enterprise, but Respondent
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suggested the owner might be interested in establishing a nonprofit organization to
support the cause of promoting training in effective parenting techniques for the
prevention of child abuse.
Respondent testified that when the wife consulted her about the dissolution
of marriage action, Respondent advised her that the money she had in her credit
union account, or most of it, would probably be deemed a marital asset subject to
equitable distribution. According to Respondent’s testimony, when the wife
insisted that she did not want her husband to receive any of the money, Respondent
advised her that if she donated the money to charity, the transaction would have to
be disclosed and would be deemed a dissipation of assets, resulting in a setoff in
the final distribution of marital assets. Nevertheless, the wife said she wanted to
donate the money to the parenting education group Respondent had told her about
previously.
When Respondent advised the wife about her will, Respondent did not know
whether her friend’s company had an affiliated nonprofit support organization.
However, by the time Respondent was retained to represent the wife in the
dissolution proceeding, she had learned not only that there was no such nonprofit
organization in existence, but also that due to a decline in the business, her friend
had decided to seek other employment and was not interested in forming a
nonprofit organization related to improving parenting or preventing child abuse.
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On questioning by her own counsel in the referee proceeding, Respondent testified
as follows:
Q. Okay. Now, this Parenting Education Charitable Trust,
which is the payee on this $480,000 check, did you provide that name
to her, that entity?
A. When I told her, [my friend] didn’t have any sort of
charitable arm set up and something would have to be set up. [My
friend] would prefer it to be a charitable trust because she didn’t want
the ongoing administrative expenses that were associated with a
501(c)(3) corporation. [The wife] asked me, well, how would a
donation check be made out? I said, it would be made out to the name
of the trust. And she asked me, well, how would the trust be named?
I said, whatever you want to name it. You’re creating it, so it’s up to
you what you want to name it. And I think she asked me if the name
Parenting Education Charitable Trust would be okay, and I said yes.
Respondent testified that she told the wife that she, Respondent, was not qualified
to advise her on setting up a charitable trust and she would need to consult other
counsel to provide her that service.
The former wife’s testimony differed from Respondent’s. The former wife
testified that Respondent told her the name of the payee to whom she should have
the cashier’s check written. The former wife testified that she believed Parenting
Education Charitable Trust was an entity that had been or was in the process of
being established, that Respondent was going to research the issues as necessary,
and that other lawyers in her law firm would be able to perform the necessary legal
work to establish the charitable entity.
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When asked why the cashier’s check was not reported as an asset in the
wife’s initial family law financial affidavit, Respondent testified that when the wife
gave her a worksheet she had prepared for the affidavit, and the money represented
by the cashier’s check was not listed, Respondent “thought the reason was because
she gave it to the charity that she’d set up.” The former wife, on the other hand,
testified that she assumed Respondent or other lawyers in the law firm were
working on setting up the trust. Respondent testified that she did not become
aware that the wife had not funded a trust until the following August. Respondent
claims that when she found out the wife still had the cashier’s check, she advised
her to redeposit it in a bank account so that the funds could be disclosed by means
of an updated financial affidavit, which was filed in October 2011, before the case
went to trial. The trial of the dissolution case was held October 24-26, 2011. Thus
Respondent claims she corrected the faulty financial information within a
reasonable time after learning of the inaccuracy.
Respondent’s denial of the allegations of misconduct in connection with her
disclosures to the court and in discovery on behalf of the wife depends on her
claim that she assumed the wife had established a charitable trust and transferred
the check in the amount of $482,980.46 to the trust. However, Respondent never
heard any report back from anyone that a charitable trust had been established and
funded with her client’s money. From the day the check was issued until the day it
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was redeposited—a period of nearly a year—so far as the record shows
Respondent and her client never discussed the progress being made toward the
establishment of a trust. In order to know that the disclosures and discovery
responses submitted on behalf of the wife were accurate, Respondent would have
had to confirm that the wife had actually divested herself of the money. According
to Respondent, she did not confirm it; she assumed it.
Even if Respondent initially believed the wife’s financial affidavit was
accurate because she had given away the money, the evidence supports the
referee’s conclusion: “As the dissolution proceedings continued, neither
Respondent nor [the former wife] could have believed that the check would be
used for charitable purposes.” Although Respondent testified that she did not
become aware that her client still had the check until August 2011, the referee
implicitly concluded from the evidence that this knowledge must have come much
earlier. If Respondent was not aware of the inaccuracy of her discovery responses
when they were served, under Family Law Rule of Procedure 12.280, General
Provisions Governing Discovery, she was obligated to amend the responses when
she became aware that the responses were incorrect or had become incorrect in
light of new information. The referee found Respondent never did this and that the
failure to do so clearly shows intentional misconduct.
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Although there were conflicts in the evidence, the referee heard the
testimony and resolved the conflicts. The responsibility for finding facts and
resolving conflicts in the evidence is placed with the referee. See Fla. Bar v.
Hooper, 509 So. 2d 289, 290 (Fla. 1987). The referee is in the best position to
judge the credibility of witnesses. See Fla. Bar v. Forrester, 916 So. 2d 647, 652
(Fla. 2005); Fredericks, 731 So. 2d at 1251. A party seeking to show that a
referee’s findings of fact are not supported by competent, substantial evidence
cannot do so simply by pointing to contradictory evidence in the record. See Fla.
Bar v. Committe, 916 So. 2d 741, 746 (Fla. 2005). We find that competent,
substantial evidence in the record supports the referee’s factual findings with
respect to Respondent’s knowledge of the cashier’s check, the falsity of the
financial affidavit filed with the court, and the incomplete, false, or misleading
interrogatory answers provided to opposing counsel.
Based on her conduct with respect to the wife’s financial affidavit and the
discovery answers, the referee recommended that Respondent be found guilty of
the following rule violations: (1) rule 3-4.3 (unlawful and dishonest acts are a
cause for discipline), based on the filing of the inaccurate financial affidavit and
not disclosing the existence of the cashier’s check; (2) rule 4-3.3(a) (making or
failing to correct a false statement of material fact made to a tribunal), based on the
filing of the false financial affidavit; (3) rule 4-3.4(b) (a lawyer must not fabricate
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evidence), based on the submission of the false financial affidavit; (4) rule 4-4.1
(making a false statement or failing to disclose a material fact), based on the false
financial affidavit and nondisclosure of the cashier’s check; and (5) rule 4-8.4(a)
and (c) (a lawyer shall not violate the Rules of Professional Conduct or do so
through the acts of another and shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation), based on the filing of the affidavit and the
nondisclosure discussed in connection with the other violations. As stated above,
the factual findings must support the recommendations as to guilt. We find that the
referee’s findings of fact support these recommendations as to guilt.
Response to Husband’s Request for Production
Respondent argues that there was no failure to disclose the cashier’s check
as a financial asset because her written response to the husband’s request to
produce made reference to the credit union account from which the cashier’s check
was issued and stated that the records were “available for inspection and copying at
the office of the undersigned.” Respondent argues that the husband’s attorney did
not inspect the documents because of his own lack of diligence. However, the
request to produce filed by the husband’s attorney specified that production of
documents should be made at his office. The referee found that Respondent did
not object or seek a protective order with respect to the terms of the discovery.
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Although the husband’s request to produce specified the husband’s
attorney’s office as the place of production, Respondent testified that her paralegal
“tried to find out how they could coordinate the discovery but she wasn’t getting
any answers from [opposing counsel] or his office.” The husband’s attorney
testified that from December 2010, when his first motion to compel was granted,
until September 2011, Respondent delayed the production of the documents he
sought by his request to produce. He testified that he offered numerous times to
pick up the documents, scan them at his office, and bring them back the same day,
but his offers were refused. The husband’s attorney wanted to examine the
documents at his office so he could decide which ones he needed to copy or scan
and he preferred to scan the needed items at his office so he would have them in
digital format.
Respondent testified that her law firm had a policy of not providing
documents in discovery without payment of copying costs by opposing counsel. A
paralegal who worked with Respondent testified that the documents were not
produced because the husband’s attorney refused to pay the copying costs. She
said that she offered to send the documents to a copy service to have the
documents copied or scanned at his expense, but the husband’s attorney refused the
offer. Attempting to explain why her firm would not allow the records to be
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delivered to the husband’s attorney for him to inspect, copy, or scan selected items
as he chose and then bring them back, the paralegal testified as follows:
So, it went back and forth several times, but he wanted somebody to
deliver them to his office and sit at the office and let him go through
and pick out what he wanted and copy them. Because we weren’t
gonna drop the box of documents off because those were all our
original documents and we had not scanned them in or catalogued
them or Bates stamped them, you know, to know what—everything
that’s in there, so we weren’t just gonna drop the box of documents
off and let him go through and copy them.
This testimony does not justify the failure to produce the documents.
Florida Rule of Civil Procedure 1.350 governs “Production of Documents
and Things” and provides that a party may request another party “to produce and
permit the party making the request . . . to inspect and copy any designated
documents.” Rule 1.350(b) provides that a request to produce “shall specify a
reasonable time, place, and manner of making the inspection” and requires the
party to whom the request is directed to respond either stating that the inspection
will be permitted as requested or stating an objection. See also Fla. Fam. L. R. P.
12.285(l) (“Unless otherwise agreed by the parties or ordered by the court, all
production required by this rule shall take place . . . in the office of the attorney for
the party receiving production.”). The referee found that Respondent never
objected to the husband’s request to produce. The husband’s request for
production did not require Respondent to incur any copying costs. There was no
testimony that Respondent had any reason to believe the husband’s attorney could
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not be trusted to inspect the original documents and return them in proper order.
While the paralegal described her reluctance to turn over documents without
knowing, in the paralegal’s words, “everything that’s in there,” the obvious
solution would be to catalogue the documents and to know what they are before
producing them for inspection. A party’s objections to the time, place, or manner
of production should be made to the court. See Fla. R. Civ. Pro. 1.280(c) (General
Provisions Governing Discovery; Protective Orders). The referee found that the
dispute about paying for copies “may have resulted in some delay but certainly this
was not the major reason for the delay in responding to [the husband’s attorney’s]
requests.”
Respondent also argues that if she violated the rules of discovery, the
violation was inconsequential because ultimately all the wife’s financial
information was disclosed before the trial. However, concealing a document even
temporarily, and even when the information may be available to opposing counsel
by other means or from other sources, has been held to be misconduct. See Fla.
Bar v. Forrester, 818 So. 2d 477, 481-82 (Fla. 2002). Respondent’s claim that
there was no concealment of financial information because the bank records were
in a box of documents which opposing counsel could have inspected at her office
does not justify her failure to comply with the rules of discovery. We find that
competent, substantial evidence in the record supports the factual finding of the
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referee that Respondent deliberately withheld documents requested in the
husband’s request to produce. This factual finding supports the referee’s
recommended finding as to Respondent’s guilt of violating rule 4-3.4(a)
(concealing or obstructing the opposing party’s access to evidence) and rule 4-
3.4(c)-(d) (disobeying the rules of the tribunal and failure to produce records or
documents in response to discovery).
The Wife’s Deposition Testimony
Respondent argues that the referee erred in finding that she knowingly
allowed false evidence to be presented by way of the wife’s deposition testimony
about the withdrawal and redeposit of the funds in the credit union account without
taking any remedial action. The referee found that the wife’s September 2011
deposition testimony that she had the cashier’s check issued to make a donation to
charity, did not know the amount of the cashier’s check, and did not know whether
the balance in the account from which she withdrew the money was more or less
than $200,000 was false. The wife’s testimony was that after she withdrew the
money in the form of a cashier’s check, it was not her money since it was going to
charity; therefore she did not need to include it in her financial affidavit. When she
later changed her mind about donating the money to charity, it meant merely that
her financial affidavit needed to be “updated.” The referee concluded that
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Respondent knew the wife’s deposition testimony was false but took no remedial
action.
The referee’s recommended findings of misconduct for violating rule 4-3.3,
Candor Toward the Tribunal, subdivision (a)(1) and (b), are based partly on
Respondent’s failure to correct the inaccurate financial affidavit as discussed above
and partly on her failure to correct “the false evasive testimony” of the wife at her
deposition. Rule 4-3.3(a)(1) provides: “A lawyer shall not knowingly: (1) 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.” Rule 4-3.3(b)
provides:
A lawyer who represents a client in an adjudicative proceeding and
who knows that a person intends to engage, is engaging, or has
engaged in criminal or fraudulent conduct related to the proceeding
shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
Furthermore, rule 4-3.3 “applies when the lawyer is representing a client in an
ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority,
such as a deposition.” R. Regulating Fla. Bar 4-3.3 cmt.1
1. The comment to rule 4-3.3 also includes the following statement: “The
prohibition against offering false evidence only applies if the lawyer knows that
the evidence is false. A lawyer’s reasonable belief that evidence is false does not
preclude its presentation to the trier of fact.” This comment does not apply here
because, as the referee found, Respondent knew the testimony was false. We are
also not concerned here with issues that sometimes arise in criminal cases in
circumstances where a lawyer’s duty of candor to the tribunal must be “balanced
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The comment to rule 4-3.3 recognizes that in certain circumstances the rule
may put the attorney in the difficult position of betraying the confidence of his or
her client:
The rule generally recognized is that, if necessary to rectify the
situation, an advocate must disclose the existence of the client’s
deception to the court. Such a disclosure can result in grave
consequences to the client, including not only a sense of betrayal but
also loss of the case and perhaps a prosecution for perjury. But the
alternative is that the lawyer cooperate in deceiving the court, thereby
subverting the truth-finding process that the adversary system is
designed to implement.
The comment also illustrates the rule’s requirement of “reasonable remedial
measures” as follows: “If perjured testimony or false evidence has been offered,
the advocate’s proper course ordinarily is to remonstrate with the client if
circumstances permit. In any case, the advocate should ensure disclosure is made
to the court.”
Respondent suggests that the wife was not deliberately lying but was
confused due to badgering by the husband’s attorney. Respondent also argues that
she took reasonable steps to remedy the effect of the wife’s inaccurate deposition
testimony. Respondent argues that if she had interrupted the wife in the middle of
the deposition to counsel her about her testimony, she would have been accused of
with competing obligations.” United States v. Stewart, 931 F. Supp. 2d 1199, 1215
(S.D. Fla. 2013).
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coaching the witness, so she waited until a break in the deposition to inform the
husband’s attorney that accurate information about the amount of money in the
account could be obtained by examining the records she had referred to in her
response to his request to produce—records which she had “made available” to
him but had not yet actually provided to him.
Respondent’s assumption that any interruption would have been objected to
is speculative. We do not know what opposing counsel would have done if
Respondent had asked for a suspension of questioning so she could counsel her
client because, as far as the transcript shows, she never asked. The referee found
that the husband’s attorney did not remember Respondent acknowledging the
inaccuracy of the wife’s testimony and telling him where he could find the correct
figures as Respondent claimed. The transcript of the deposition does not show any
such correction or clarification on the record. Thus there was a conflict between
Respondent’s testimony and that of the husband’s attorney. Resolving conflicts in
the evidence is the responsibility of the referee. See Hooper, 509 So. 2d at 290.
The referee resolved this factual issue by finding that Respondent failed to take
reasonable remedial steps to rectify the effect of false deposition testimony,
knowing of its falsity. On review of the record we conclude that the referee’s
findings that the wife’s deposition testimony was false and that Respondent knew
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it was false and took no reasonable remedial action are supported by competent,
substantial evidence.
Respondent argues that the opposing party and the court had accurate
financial information by the time of the trial and that the record shows no intent to
mislead or deceive the court. In the aftermath of the September 2011 deposition,
the requested documents were finally produced and accurate financial information
was provided. The circuit court proceeded to render a final judgment and
distribute the parties’ assets. The Bar responds that Respondent should not be
credited for her delayed compliance with her disclosure obligations, because after
the deposition of the wife, it was inevitable that the deception would be uncovered,
and Respondent had no choice but to provide accurate financial information.
Regardless of the lack of effect on the ultimate outcome, the referee found that
Respondent knowingly withheld accurate information from opposing counsel and
the court by failing to take action to correct the inaccurate testimony at the
deposition. This finding is supported by competent, substantial evidence. The
referee’s finding, in turn, supports the recommendations as to Respondent’s guilt
of violating rule 4-3.3(a)(1) and (b) (failing to take remedial action to correct the
false deposition testimony) and rule 4-3.4(b) (assisting in the giving of false
testimony).
Respondent’s Receipt of the Coins
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Respondent challenges the referee’s findings of fact and recommended
finding as to misconduct in connection with her taking possession of the coins
given to her by the wife. Respondent claims there is insufficient evidence to
support the conclusion that she violated rule 5-1.1(e)-(f) by receiving property in
trust without notice to a party claiming an interest in the property. Respondent
claims she believed the coins the wife gave her were her client’s property and she
had no reason to believe the husband had a claim to those coins.
There was conflicting evidence concerning the coins. An exhibit admitted
into evidence by the referee, which had also been an exhibit admitted into evidence
in the circuit court dissolution case, was the “List of Husband’s Personal
Property.” Item 9 on the list was “coin collection from childhood in fireproof safe
in study.” The final judgment in the dissolution case awarded both parties their
claimed personal property as submitted to the court in their respective lists. The
former husband testified that he had about a dozen old silver dollars and that when
he was allowed by court order to visit the former marital home to collect the
personal property that had been awarded to him but which he had not yet received,
he could not find the coins. He asked the former wife where they were and,
according to his testimony, she replied, “I have them in safekeeping.” Respondent
was present during this visit, heard the conversation, and said nothing.
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The former wife testified that during the dissolution trial she gave some
coins to Respondent for safekeeping because she was afraid her former husband
might try to take them. She said she inherited the coins from her mother and she
had claimed them as her separate property in the dissolution case. She testified
that her former husband did not own any coins and the coins that were present in
the marital home were hers.
In her testimony before the referee, Respondent admitted that during the
dissolution trial she received some coins from her client because the wife was
afraid the husband would try to take them. Respondent testified that she believed
the coins she received were the separate property of the wife. Respondent testified
that to the extent of her knowledge, the former husband did not have a coin
collection and that she did not disclose her possession of the coins because she did
not know the husband had asserted a claim to the coins she had taken possession
of. The dissolution court ultimately divided the coins between the parties.
Respondent acknowledged that the reason the wife wanted her to take the
coins was that the husband might try to take them. That fact alone was enough to
alert Respondent that there might be a dispute as to the ownership of the coins,
whether the husband’s claim was meritorious or not. But even if, at the time she
received them, Respondent was not aware that the husband claimed ownership of
the coins the wife entrusted to her for safekeeping, she certainly became aware that
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there was a dispute as to the ownership of the coins when the former husband
visited the home, looked for some coins, and could not find them. At that point, if
not earlier, Respondent had a duty to disclose her custody of the coins. Therefore,
even though ownership was disputed by her client, Respondent had a clear duty to
notify opposing counsel that she had received and had custody of the coins. She
did not do so until she was ordered to in connection with a postjudgment contempt
proceeding. The referee’s findings of fact represent a resolution of conflicting
evidence. The mere showing that there is conflicting evidence in the record is not
sufficient to overcome the presumption of correctness that applies to the referee’s
findings of fact. See Committe, 916 So. 2d at 746; Fla. Bar v. Barrett, 897 So. 2d
1269, 1275 (Fla. 2005). The findings of fact are supported by competent,
substantial evidence in the record. Moreover, the findings of fact support the
recommendation of guilt of misconduct for violation of rule 5-1.1(e)-(f) (failure to
give notice of receipt of property held in trust).
DISCIPLINE
The referee recommended that Respondent be suspended from the practice
of law for ninety days and be placed on probation for two years. The referee
observed that a more severe discipline might be deemed appropriate to the nature
of the misconduct, but found as mitigating factors that Respondent had an
unblemished record and a good professional reputation. Respondent seeks review
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of the referee’s recommendation on discipline. She argues that the discipline is too
severe because her only misconduct, if any, was that she failed to respond quickly
or thoroughly enough to rectify the situation when she discovered that the wife’s
financial disclosures were not accurate. She argues that since her misconduct was
negligent and not intentional, she should not be suspended but only reprimanded.
We have already rejected Respondent’s claim that the evidence was insufficient to
prove intent under the applicable standard for finding that element. We therefore
reject Respondent’s argument on the question of discipline.
The Bar argues that the referee’s recommended discipline is inadequate in
light of the proven misconduct. In reviewing a referee’s recommended discipline,
this Court’s scope of review is broader than that afforded to the referee’s findings
of fact because, ultimately, it is our 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
caselaw and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v.
Temmer, 753 So. 2d 555, 558 (Fla. 1999).
The purposes of attorney discipline are: (1) to protect the public from
unethical conduct without undue harshness towards the attorney; (2) to punish
misconduct while encouraging reformation and rehabilitation; and (3) to deter
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other lawyers from engaging in similar misconduct. See Fla. Bar v. Maynard, 672
So. 2d 530, 540 (Fla. 1996); Fla. Bar v. Neu, 597 So. 2d 266, 269 (Fla. 1992); Fla.
Bar v. Lord, 433 So. 2d 983, 986 (Fla. 1983).
Florida Standard for Imposing Lawyer Sanctions 6.1, False Statements,
Fraud, and Misrepresentation, and Standard 6.2, Abuse of the Legal Process,
provide guidance for determining the sanction in this case. Standard 6.1 applies to
“conduct that is prejudicial to the administration of justice or that involves
dishonesty, fraud, deceit, or misrepresentation to a court.” Under standard 6.1,
specific standard 6.12 provides: “Suspension is appropriate when a lawyer knows
that false statements or documents are being submitted to the court or that material
information is improperly being withheld, and takes no remedial action.” Standard
6.2 applies to “failure to obey any obligation under the rules of a tribunal.” Under
standard 6.2, specific standard 6.22 provides: “Suspension is appropriate when a
lawyer knowingly violates a court order or rule, and causes injury or potential
injury to a client or a party, or causes interference or potential interference with a
legal proceeding.” Under these standards, a suspension is appropriate.
Because the standards do not distinguish among suspensions of differing
length, they are helpful only as a starting point. See Fla. Bar v. Walton, 952 So. 2d
510, 514 (Fla. 2006); Brown, 905 So. 2d at 83-84. We also look to the caselaw
and compare the facts and circumstances of the case under review with previous
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disciplinary cases in which similar misconduct occurred under comparable
circumstances. See, e.g., Fla. Bar v. Erlenbach, 138 So. 3d 369, 373-74 (Fla.
2014); Fla. Bar v. Breed, 378 So. 2d 783, 785 (Fla. 1979).
In Florida Bar v. Miller, 863 So. 2d 231, 233-34 (Fla. 2003), the respondent
was found to have concealed his awareness of a document, submitted false
statements as to his awareness of the document, and permitted witnesses to testify
in ways that created false impressions as to their awareness of the document. The
Court imposed a one-year suspension. Id. at 236. In Florida Bar v. Cox, 794 So.
2d 1278, 1279-80 (Fla. 2001), a prosecuting attorney was found to have knowingly
concealed information from the court and from the defendant which would have
been important information for the defendant to have in preparation for trial. The
Court observed that based on the applicable precedents, any attempt to withhold
the truth or present false information in a court proceeding would normally merit
disbarment. Id. at 1284-85. However, based on mitigating factors found by the
referee, including the respondent’s lack of a prior disciplinary record, the Court
imposed a suspension of one year. Id. at 1286-87. Other cases show that
intentional misrepresentation to a court is regarded as serious misconduct which
usually results at minimum in a suspension requiring proof of rehabilitation for
reinstatement. See, e.g., Fla. Bar v. Head, 84 So. 3d 292, 303 (Fla. 2012); Fla. Bar
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v. Head, 27 So. 3d 1, 9-10 (Fla. 2010); Fla. Bar v. Hmielewski, 702 So. 2d 218,
219-21 (Fla. 1997); Fla. Bar v. Jasperson, 625 So. 2d 459, 463 (Fla. 1993).
Based on the referee’s findings of fact and recommendations as to guilt,
considered in light of the lawyer sanction standards and disciplinary caselaw
discussed above, we find that the appropriate measure of discipline in this case is
suspension from the practice of law for one year.
CONCLUSION
Accordingly, Respondent is hereby suspended from the practice of law for
one year. The suspension will be effective thirty days from the date of this opinion
so that Respondent can close out her practice and protect the interests of existing
clients. If Respondent notifies this Court in writing that she is no longer practicing
and does not need thirty days to protect existing clients, this Court will enter an
order making the suspension effective immediately. Respondent shall accept no
new business from the date this opinion is filed until such time as she is reinstated
to the practice of law by order of this Court. Respondent is required to comply
with Rule Regulating the Florida Bar 3-5.1(h).
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Zana Holley Dupee in
the amount of $9,009.33, for which sum let execution issue.
It is so ordered.
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LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
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 James N.
Watson, Jr., Bar Counsel, The Florida Bar, Tallahassee, Florida,
for Complainant
David Robert Ristoff of Williams, Ristoff & Proper, P.L.C., New Port Richey,
Florida,
for Respondent
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