The Florida Bar v. Odiator Arugu ( 2022 )

Supreme Court of Florida
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No. SC21-933
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THE FLORIDA BAR,
Complainant,
vs.
ODIATOR ARUGU,
Respondent.
November 10, 2022
PER CURIAM.
We have for review a referee’s report recommending that
Respondent, Odiator Arugu, be found guilty of professional
misconduct in violation of the Rules Regulating The Florida Bar
(Bar Rules), and that he be suspended from the practice of law for
sixty days as a sanction for his misconduct. We have jurisdiction.
See art. V, § 15, Fla. Const. For the reasons discussed below, we
approve the referee’s findings of fact and recommendations as to
guilt, except as to Bar Rule 4-3.4(a), which we disapprove. We also
disapprove the referee’s recommended discipline and instead
suspend Arugu from the practice of law for ninety-one days.
BACKGROUND
Arugu represented George Rodriguez in his divorce
proceedings. Rodriguez’s father-in-law claimed that he owned a
50% undivided interest in the marital home. On May 13, 2020,
Arugu prepared and filed with the circuit court a Notice of
Production from Non-Party Freedom Mortgage Corporation
(Freedom), along with a proposed subpoena duces tecum. The
proposed subpoena listed seven sets of records Arugu wanted
Freedom to produce pertaining to Rodriguez’s wife and father-in-
law. After the ten-day period to serve an objection to the proposed
subpoena expired, 1 Arugu served a modified version of the
subpoena on Freedom, seeking the production of three additional
sets of records. Specifically, Arugu sought credit check reports and
mortgage loan applications for Rodriguez’s wife and father-in-law,
and any power of attorney executed by Rodriguez’s father-in-law. In
1. Under Florida Family Law Rule of Procedure 12.351(b)
(Production of Documents and Things Without Deposition)
(Procedure), a party may serve an objection to production under the
rule within ten days of service of the notice.
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a January 4, 2021, sworn statement in the Bar disciplinary case,
Arugu explained that after the ten-day period to serve an objection
expired, when he was about to issue the subpoena, it occurred to
him that he did not request those records and decided to include
them in the subpoena.
On May 27, 2020, Arugu filed with the circuit court a copy of
the modified subpoena that he served on Freedom. Wade Luther,
who represented Rodriguez’s wife, emailed a letter to Arugu the
same day, objecting to the “materially and substantially different”
subpoena Arugu served on Freedom compared to the one he had
noticed two weeks earlier. Luther demanded that Arugu withdraw
the subpoena. Arugu responded to Luther’s email stating that the
modified subpoena was not materially and substantially different
than the noticed one, and he asked Luther for a clarification of the
rules and to support his position in respect to the subpoena. Arugu
did not contact Freedom to withdraw the modified subpoena, and
Freedom ultimately produced some records in response to the
subpoena.
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In an order dated September 25, 2020, the circuit court later
found that Arugu had improperly sent a subpoena to Freedom that
was a different version of the one he provided notice of.
The referee found that because Arugu failed to provide notice
that he was seeking the additional records in the subpoena, he
failed to give interested parties who were served with the subpoena
an opportunity to object to the production of the additional records.
The referee recommends that Arugu be found guilty of
violating Bar Rules 3-4.3 (Misconduct and Minor Misconduct);
4-3.4(a) (a lawyer must not unlawfully obstruct another party’s
evidence or otherwise unlawfully alter, destroy, or conceal a
document or other material that the lawyer knows or 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 make a frivolous discovery request or intentionally
fail to comply with a legally proper discovery request by an opposing
party); 4-4.1(a) (in the course of representing a client, a lawyer must
not make a false statement of material fact or law to a third person);
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4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation); 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 recommends that Arugu be suspended from the
practice of law for sixty days and that he be assessed the Bar’s
costs. Both Arugu and the Bar filed notices of intent to seek review
of the referee’s report. Arugu challenges the recommendation that
he be found guilty of violating Bar Rules 4-3.4, 4-4.1, and 4-8.4(c),
as well as the recommended sanction. The Bar challenges the
recommended sanction.
ANALYSIS
A. The Referee’s Recommendation as to Guilt
First, Arugu challenges the referee’s findings of fact and
recommendations of guilt as to Bar Rules 4-3.4, 4-4.1, and 4-8.4(c).
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. Gwynn, 94 So. 3d 425, 428 (Fla. 2012); see Fla. Bar v.
Barrett, 897 So. 2d 1269, 1275 (Fla. 2005). The referee’s factual
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findings must be sufficient under the applicable rules to support
the recommendations regarding guilt. See Fla. Bar v. Shoureas, 913
So. 2d 554, 557-58 (Fla. 2005); Fla. Bar v. Spear, 887 So. 2d 1242,
1245 (Fla. 2004). The party challenging the referee’s finding of fact
and recommendations as to guilt has the burden to demonstrate
“that there is no evidence in the record to support those findings or
that the record evidence clearly contradicts the conclusions.” Fla.
Bar v. Germain, 957 So. 2d 613, 620 (Fla. 2007).
Bar Rule 4-3.4(a)
Under Bar Rule 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 reasonably should know is relevant to a pending or
a reasonably foreseeable proceeding; nor counsel or assist another
person to do any such act.” R. Regulating Fla. Bar 4-3.4(a). The
referee made no findings that Arugu obstructed others’ access to
evidence; unlawfully modified, destroyed, or concealed a document
or other material; or that he counseled or assisted another person
to do any such act. There are thus insufficient findings to support
the referee’s recommendation that Arugu be found guilty of violating
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rule 4-3.4(a). See Shoureas, 913 So. 2d at 557-58. Accordingly, we
disapprove the referee’s recommendation of guilt as to Bar Rule
4-3.4(a).
Bar Rule 4-3.4(c)
Bar Rule 4-3.4(c) states that a lawyer must not “knowingly
disobey an obligation under the rules of a tribunal.” R. Regulating
Fla. Bar 4-3.4(c). Under Florida Family Law Rule of Procedure
12.351(a) (Production of Documents and Things Without
Deposition), a party may seek the production of documents and
things from a nonparty by issuance of a subpoena. The party
desiring the production must serve all other parties with notice of
the intent to serve the subpoena, and the proposed subpoena must
be attached to the notice. See Fla. Fam. L. R. P. 12.351(b). If no
objection is made, the issued subpoena must be “identical” to the
proposed subpoena attached to the notice. See Fla. Fam. L. R. P.
12.351(c). Here, the record clearly supports the referee’s finding,
and Arugu does not dispute, that the subpoena he served on
Freedom was different from the one he attached to his notice of
intent to serve the subpoena. Arugu explained that after the ten-
day period for objecting to the proposed subpoena expired, he
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realized that he had failed to include certain records in the
proposed subpoena and decided to include them in the subpoena
he was about to serve on Freedom, nonetheless. We find that in
knowingly serving Freedom with a different subpoena than the one
attached to the notice served on the other parties, Arugu knowingly
flouted an obligation under the rules of a tribunal, in violation of
Bar Rule 4-3.4(c).
Bar Rule 4-3.4(d)
Bar Rule 4-3.4(d) states that 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.” R. Regulating Fla. Bar 4-3.4(d). In Florida Bar v. Broida,
574 So. 2d 83 (Fla. 1991), we found that the respondent, who
among other things filed a subpoena requesting records previously
requested and objected to, violated Bar Rule 4-3.4(d) and others.
Here, Arugu testified that he did not actually send the
modified subpoena to Freedom until after Luther advised him of his
objection. In fact, Luther requested that Arugu not serve the
modified subpoena if he had not yet done so, or that he contact
Freedom to advise it that the subpoena was withdrawn. Arugu
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declined to do both. Arugu also could have filed an amended notice
of intent to serve subpoena, with the amended subpoena attached,
and waited ten additional days before he served the modified
subpoena. He chose not to. Arugu proceeded to serve the modified
subpoena despite the known objection and without advising
Freedom of the objection. We find that knowingly serving a
subpoena on Freedom seeking items for which he did not provide
proper notice to the other parties, and which he knew opposing
counsel objected to, without first having the court resolve the issue
constituted a frivolous discovery request. We find the record
supports the referee’s finding of fact and that such findings are
sufficient to support the recommendation that Arugu violated Bar
Rule 4.3.4(d).
Bar Rules 4-4.1 and 4-8.4(c)
Bar Rule 4-4.1 states that in the course of representing a
client, a lawyer shall not knowingly “make a false statement of
material fact or law to a third person.” R. Regulating Fla. Bar
4-4.1(a). Partially true but misleading statements as well as
omissions can constitute a misrepresentation, in violation of Bar
Rule 4-4.1. See R. Regulating Fla. Bar 4-4.1, cmt; Fla. Bar v. Scott,
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39 So. 3d 309, 317 (Fla. 2010) (finding the respondent’s failure to
tell a third party about several pieces of information violated Bar
Rule 4-4.1(a) even though the withheld information “was public and
nonconfidential”). Similarly, Bar Rule 4-8.4(c) states that a lawyer
shall “not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” R. Regulating Fla. Bar 4-8.4(c).
Here, the evidence shows that after Arugu filed a copy of the
modified subpoena, Luther emailed Arugu, objecting to the
subpoena on grounds that it was materially and substantially
different from the version that Arugu had filed on May 13, 2020,
and requesting that Arugu not serve the modified subpoena, if he
had not done so, or that he contact Freedom to withdraw the
subpoena. Under Family Law Rule of Procedure 12.351(b), when a
party gives notice of a request for the production of records and
things and another party serves an objection to the production
within ten days of service of the notice, the records or things must
not be produced pending resolution of the objection. Instead,
however, Arugu proceeded to serve the modified subpoena despite
being aware of the objection. The modified subpoena was delivered
on June 4, 2020, less than ten days after Arugu filed a copy of the
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modified subpoena with the circuit court. He failed to inform
Freedom of Luther’s objection, thereby misrepresenting to Freedom
that it was required to produce all records listed on the subpoena.
As a result, Freedom produced many of the requested documents.
Arugu argues he did not engage in intentional misconduct.
However, the intent element can be satisfied merely by showing that
the conduct was deliberate or knowing. See Fla. Bar v. Head, 27
So. 3d 1, 9 (Fla. 2010). Clearly, Arugu was aware that the modified
subpoena was substantially different from the one attached to his
notice. He was also aware of the objection to the modified
subpoena before he actually served the subpoena. Therefore, we
find that the record clearly supports a finding that Arugu knowingly
engaged in dishonest and deceitful conduct in violation of rules
4-4.1 and 4-8.4(c).
Accordingly, we approve the referee’s findings of fact and
recommendations of guilt, except as to Bar Rule 4-3.4(a), which we
disapprove.
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B. Discipline
We now turn to the referee’s recommended discipline, a sixty-
day suspension. 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 this Court’s
responsibility to order the appropriate sanction. See Fla. Bar v.
Picon, 205 So. 3d 759, 765 (Fla. 2016); Fla. Bar v. Anderson, 538
So. 2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla. Const.
The referee recommended a sixty-day suspension, finding that
Arugu’s conduct was not as egregious as in other cases relied on by
the Bar, including Florida Bar v. Berthiaume, 78 So. 3d 503 (Fla.
2011). We agree with the referee that a suspension is the
appropriate sanction in this case. See Fla. Stds. Imposing Law.
Sancs. 6.2(b) (“Suspension is appropriate when a lawyer knowingly
violates a court order or rule and causes injury or potential injury
to client or a party or causes interference or potential interference
with a legal proceeding.”); 7.1(b) (“Suspension is appropriate when a
lawyer knowingly engages in conduct that is a violation of a duty
owed as a professional and causes injury or potential injury to a
client, the public, or the legal system.”). Arugu knowingly served
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Freedom with a modified version of the subpoena that he had filed
with the circuit court, even after Luther advised him that he should
not do so. As a result, interested parties did not have the
opportunity to object to the production of the additional records,
which Freedom ultimately produced in response to the modified
subpoena. However, we disagree with the referee’s conclusion that
Arugu’s conduct was not sufficiently egregious to warrant a more
severe sanction.
In Berthiaume, the respondent was suspended for ninety-one
days for violating Bar Rules 4-8.4(c) and 4-8.4(d) after she served a
fraudulent subpoena on a bank, outside the context of litigation
and without legal authority, in an effort to conduct her own
personal investigation into a client’s private finances. 78 So. 3d at
511. We noted then that such dishonest conduct “demonstrates
the utmost disrespect for the court and is destructive to the legal
system as a whole.” Id. at 510.
While Arugu issued his subpoena in the context of an ongoing
litigation, his conduct is just as egregious as that at issue in
Berthiaume. Arugu served the modified subpoena on Freedom even
though opposing counsel advised him that doing so was improper
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and asked him to not serve the modified subpoena. Arugu claims
he served the modified subpoena despite the objection because
opposing counsel did not give a basis for the objection. However,
Arugu, who was admitted to the Bar in 1995, could have conducted
his own research to determine whether he was in compliance with
the rules of procedure. Instead, he knowingly disregarded the
objection and served the subpoena on Freedom with no mention of
the objection. We conclude that Arugu’s dishonest behavior
warrants a ninety-one-day suspension; it demonstrates disrespect
for the court and is destructive to the legal system as a whole.
CONCLUSION
Accordingly, we approve the referee’s findings of fact and
recommendations as to guilt, except for the recommendation that
Arugu be found guilty of violating Bar Rule 4-3.4(a), which we
disapprove. We disapprove the referee’s recommended sanction
and instead suspend Arugu from the practice of law for ninety-one
days. The suspension will be effective thirty days from the filing of
this opinion so that Arugu can close out his practice and protect
the interests of existing clients. If Arugu notifies this Court in
writing that he is no longer practicing and does not need the thirty
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days to protect existing clients, this Court will enter an order
making the suspension effective immediately. Arugu shall fully
comply with Rule Regulating The Florida Bar 3-5.1(h). Arugu shall
also fully comply with Rule Regulating The Florida Bar 3-6.1, if
applicable. In addition, Arugu shall accept no new business from
the date this opinion is filed until he is reinstated. Arugu is further
directed to comply with all other terms and conditions of the report.
Judgment is entered for The Florida Bar, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300, for recovery of costs from
Odiator Arugu in the amount of $3,098.57, for which sum let
execution issue.
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, COURIEL, and
GROSSHANS, JJ., concur.
FRANCIS, 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
Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee,
Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar,
Tallahassee, Florida, and Daniel James Quinn, Bar Counsel, The
Florida Bar, Orlando, Florida; and Tiffany A. Roddenberry, Kevin W.
Cox, and Kathryn Isted of Holland & Knight LLP, Tallahassee,
Florida,
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for Complainant
Barry W. Rigby of Law Offices of Barry Rigby, P.A., Winter Park,
Florida,
for Respondent
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