The Florida Bar v. Donnette Sonya Russell- Love , 39 Fla. L. Weekly Supp. 35 ( 2014 )

Supreme Court of Florida
____________
No. SC12-223
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THE FLORIDA BAR,
Complainant,
vs.
DONNETTE SONYA RUSSELL-LOVE,
Respondent.
[January 23, 2014]
PER CURIAM.
We have for review a referee’s report recommending that Respondent
Donnette Sonya Russell-Love 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 ten days. Respondent Russell-Love filed a notice of intent
to seek review of the referee’s report and recommendations. We have jurisdiction.
See art. V, § 15, Fla. Const. As discussed below, we approve the referee’s findings
of fact and recommendation as to guilt. However, we disapprove the referee’s
recommended discipline. We conclude that Russell-Love’s serious misconduct in
this case warrants a ninety-one day suspension from the practice of law in Florida.
FACTS
In February 2012, The Florida Bar filed a complaint against Russell-Love,
alleging that she engaged in misconduct in violation of Bar rule 4-8.4(c) (a lawyer
shall not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation). A referee was appointed to consider the matter. Following a
hearing, the referee submitted his report for the Court’s review, in which he makes
the following findings and recommendations.
Russell-Love and the Bar entered into a Joint Pretrial Stipulation in this case,
stipulating to most of the relevant, material facts. In September 2009, Russell-
Love was retained by a client, a citizen of the Bahamas; Russell-Love is also of
Bahamian descent, and the referee found she is a “distant cousin” of the client.
Russell-Love was hired to assist the client in securing a P-1 visa, a type of visa that
would allow the client to legally enter the United States to participate in
professional tennis tournaments held by the United States Tennis Association
(USTA). In December 2009, Russell-Love prepared and submitted a form I-129
(Petition for Nonimmigrant Worker) to the United States Citizenship and
Immigration Services (USCIS) on behalf of the client; she also submitted a form
G-28 (Notice of Entry of Appearance as Attorney or Representative).
Following her submission, Russell-Love was notified by USCIS that the
petition was insufficient, and that the name of the organization sponsoring the
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tournament was needed. She contacted the client and learned that the tournament
was sponsored by USTA. Accordingly, in February 2010, Russell-Love sent a
letter to USTA, requesting that the organization provide a letter confirming that the
client was expected to participate in several tournaments in the United States. On
March 24, 2010, Russell-Love received a letter from Idelle Pierre-Louis, a USTA
employee, stating:
[The client] has requested a letter that will assist her in obtaining a
Visa to enable travel to the United States to participate in professional
tennis tournaments. This letter is meant just to inform the consular
office that the player has requested to play the event and should not be
considered as an endorsement.
(Emphasis added.)
The following day, Russell-Love prepared and submitted to USCIS an
amended form I-129. The referee found that Russell-Love knowingly and
deliberately listed the USTA as the “Company or Organization” filing the form.
She listed her law office address as the contact address for the USTA. She also
hand wrote Ms. Pierre-Louis’s name in the petitioner’s signature line. The
signature portion of the form required the petitioner to “certify, under penalty of
perjury under the laws of the United States of America, that this petition and the
evidence submitted with it is all true and correct. If filing this on behalf of an
organization, I certify that I am empowered to do so by that organization.”
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Russell-Love testified that she was not empowered by the USTA to file any
documents on its behalf.
Russell-Love also prepared and submitted an amended form G-28. On this
form, Russell-Love listed USTA in the space designated for the “Principal
Petitioner, Applicant, or Respondent.” She again hand wrote Ms. Pierre-Louis’s
name in the portion of the form designated for the petitioner’s signature. She also
signed the form, declaring under penalty of perjury that the information provided
was true and correct. Russell-Love admitted that the manner in which she
completed the form G-28 indicated that she was the attorney appearing on behalf
of the USTA. However, the referee did find it was of “some significance” that
Russell-Love attached the March 24, 2010, letter from USTA, and she submitted a
separate cover letter that identified her as the attorney representing the client.
In April 2010, USCIS issued a Notice of Action, indicating that the client
was approved for a P-1 visa. The Notice lists the “Petitioner” as the USTA, and
the “Beneficiary” as the client.
After receiving the P-1 visa, the client had some concerns about the short
period of time that was allowed for her travel to the United States, and she
contacted a United States Customs and Border Protection Officer for clarification.
The officer asked the client to send him a copy of the immigration forms she
submitted to USCIS. Upon reviewing the forms, the officer discovered that the
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signature on the forms attributed to Ms. Pierre-Louis did not match the signature
on the March 24, 2010, USTA letter. The officer then contacted USTA. On May
13, 2010, USTA responded in a letter stating: “[P]lease be advised that the USTA
did not agree to petition for [the client], the USTA did not pay any applications
fees for [the client’s] immigration petition and Ms. Pierre-Louis did not sign the
Form I-129 included with your letter.”
Based on his investigation, the customs officer reported the filing of false
immigration documents to a USCIS field officer in the United States Embassy in
Kingston, Jamaica. Ultimately, the client was charged with violations of the
Immigration and Nationality Act, and Russell-Love was referred to The Florida
Bar. The USCIS field officer testified that the client is now subject to “permanent
inadmissibility” from the United States; the client may seek a waiver to allow her
to enter the country, although the referee found this is a “burdensome and
expensive process.”
Based on these factual findings, the referee recommends that Russell-Love
be found guilty of violating Bar rule 4-8.4(c) (a lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation). The referee found that
Russell-Love violated the rule by: misrepresenting that she was the attorney for
USTA; misrepresenting that USTA was petitioning for a visa on behalf of the
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client; and by printing the name of a USTA employee on the signature line in the I-
129 and G-28 forms.
The referee did not find any aggravating factors in this case. He did find
four mitigating factors: the absence of a prior disciplinary record; inexperience in
the practice of law; character or reputation; and remorse. The referee also noted
that Russell-Love was “overwhelmed in her personal life with her ailing parents,
marital discord . . . (which necessarily also involved her young child) and
difficulties involving other family members.” However, the referee found that the
stress created by her personal hardships was not sufficient to excuse her
misconduct.
As to the sanction, the referee recommends that Russell-Love be suspended
from the practice of law for ten days. The referee awarded costs to The Florida
Bar, in the amount of $2,855.91.
As noted, Russell-Love sought review of the referee’s report. She
challenges the referee’s findings of fact, recommendation as to guilt, and the
recommended ten-day suspension.
ANALYSIS
The Referee’s Findings of Fact and Recommendation as to Guilt
Initially, to the extent that Russell-Love seeks review of the referee’s
findings of fact, we hold that such facts are supported by competent, substantial
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evidence. See Fla. Bar v. Frederick, 756 So. 2d 79, 86 (Fla. 2000) (stating that
when the referee’s findings are supported by “competent, substantial evidence in
the record,” this Court is “precluded from reweighing the evidence and substituting
[our] judgment for that of the referee”) (citing Fla. Bar v. Lange, 711 So. 2d 518,
520 n.5 (Fla. 1998)); see also Fla. Bar v. Jordan, 705 So. 2d 1387, 1390 (Fla.
1998). As noted, the record reflects that Russell-Love and the Bar entered into a
Joint Pretrial Stipulation, stipulating to most of the relevant and material facts.
Accordingly, we approve the referee’s factual findings without further discussion.
We also approve the referee’s recommendation that Russell-Love be found
guilty of violating Bar rule 4-8.4(c). In reviewing a referee’s recommendations as
to guilt, 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).
Rule 4-8.4(c) provides that a lawyer shall not “engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” Here, the referee found that
Russell-Love violated rule 4-8.4(c) in several ways: she misrepresented that she
was the attorney for USTA; she misrepresented that USTA was petitioning for the
P-1 visa on behalf of the client; and she printed the name of a USTA employee on
both amended forms I-129 and G-28. We conclude that the referee’s
recommendations are well supported by the facts. Russell-Love has admitted that,
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in submitting the amended form I-129, she listed the USTA as the “Company or
Organization” filing the petition, a knowingly false statement. She also admitted
that she hand wrote Ms. Pierre-Louis’s name in the signature portion of the form.
That section requires the signer to “certify, under penalty of perjury under the laws
of the United States of America, that this petition and the evidence submitted with
it is all true and correct. If filing this on behalf of an organization, I certify that I
am empowered to do so by that organization.”
Similarly, in submitting the amended form G-28, Russell-Love has admitted
that she listed the USTA as the “Principal Petitioner, Applicant, or Respondent.”
She also admitted that she hand wrote Ms. Pierre-Louis’s name in the signature
portion of this form, indicating to USCIS that Russell-Love was appearing on
behalf of the USTA. Russell-Love signed the amended form and, in so doing, she
declared that the information provided on the form was true and correct.
Russell-Love urges this Court to disapprove the referee’s recommendation
as to guilt because she contends there is no evidence to demonstrate the required
intent to support a violation of Bar rule 4-8.4(c). In general, we have held that in
order to sustain a violation of rule 4-8.4(c), the Bar must prove intent as a
necessary element of the violation. See Fla. Bar v. Brown, 905 So. 2d 76, 81 (Fla.
2005); Fla. Bar v. Lanford, 691 So. 2d 480, 480-81 (Fla. 1997). However, the
Court has also stated that to establish a lawyer’s intent, “it must only be shown that
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the conduct was deliberate or knowing.” Fla. Bar v. Head, 27 So. 3d 1, 9 (Fla.
2010) (citing Fla. Bar v. Fredericks, 731 So. 2d 1249, 1252 (Fla. 1999)). Here, the
referee expressly found that Russell-Love “acted knowingly and deliberately in
order to expedite the immigration filing for her client.” She knowingly filled out
the amended I-129 and G-28 forms in a manner that led USCIS to believe that the
USTA was petitioning for the visa on behalf of the client, and that Russell-Love
represented USTA. Accordingly, we approve the referee’s recommendation that
Russell-Love’s actions were dishonest and a misrepresentation of fact, in violation
of Bar rule 4-8.4(c).
The Referee’s Recommended Sanction
We turn next to the referee’s recommended sanction, a ten-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
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 case law and the Florida Standards for
Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla.
1999).
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We agree with the referee’s recommendation that Russell-Love’s
misconduct warrants a suspension. Cf. Fla. Stds. Imposing Law. Sancs. 6.12
(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). However, we disapprove the referee’s
recommendation that she be suspended for only ten days. Considering Russell-
Love’s misconduct, we conclude that a ninety-one day suspension is appropriate.
The referee’s factual findings demonstrate that Russell-Love submitted false
information on immigration forms she submitted to the United States government.
This is a serious ethical violation. Russell-Love acknowledged the immigration
forms implied that USTA was petitioning for a P-1 visa on behalf of the client, and
that she represented USTA, both of which were false statements. Significantly,
Russell-Love filled out or signed the portions of the revised forms declaring under
penalty of perjury that the information therein was true and correct. And, the
referee found that she acted deliberately and knowingly in order to expedite the
immigration filing. We have held that dishonest conduct by a lawyer results in “an
erosion of confidence on the part of the judiciary and the public in lawyers’
honesty. There is no more serious impact upon the integrity of our judicial
system.” Fla. Bar v. Corbin, 701 So. 2d 334, 336 (Fla. 1997).
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Moreover, Russell-Love’s actions caused harm to her client. The USCIS
field officer testified in this case that the client was charged with violations of the
Immigration and Nationality Act based on Russell-Love’s misrepresentations, and
that the client is now subject to “permanent inadmissibility” from the United
States. Although the client may seek a waiver of her status in order to enter the
country, the client also testified that it is a burdensome process.
Given the serious nature of Russell-Love’s misconduct and the harm caused
to her client, the referee’s recommendation for a ten-day suspension is not
appropriate, and a more severe sanction is warranted. This Court has consistently
stated that dishonesty and a lack of candor cannot be tolerated in a profession that
relies on the truthfulness of its members. Fla. Bar v. Rotstein, 835 So. 2d 241, 246
(Fla. 2002) (citing Fla. Bar v. Korones), 752 So. 2d 586, 591 (Fla. 2000)). Here,
we hold that Russell-Love’s misconduct warrants a ninety-one day suspension.
See Fla. Bar v. Baker, 810 So. 2d 876, 882 (Fla. 2002) (suspending an attorney for
ninety-one days for forging his ex-wife’s signature on legal documents related to
the sale of a home owned by the respondent and his ex-wife, and for having his
secretary notarize the forged signature); Fla. Bar v. Berthiaume, 78 So. 3d 503, 511
(Fla. 2011) (suspending an attorney for ninety-one days for signing and serving a
false subpoena).
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We have given consideration to the referee’s findings in mitigation. The
referee found four mitigating factors: the absence of a prior disciplinary record;
inexperience in the practice of law; good character or reputation; and remorse.
Notably, the referee found that, absent this isolated incident, Russell-Love is
someone of high integrity. Nonetheless, we conclude that the mitigating factors do
not outweigh Russell-Love’s serious misconduct.
CONCLUSION
Accordingly, Respondent Russell-Love is hereby suspended for ninety-one
days. The suspension will be effective thirty days from the filing of this opinion so
that Russell-Love can close out her practice and protect the interests of existing
clients. If Russell-Love notifies this Court in writing that she 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. Russell-Love
shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Russell-
Love shall accept no new business from the date of this opinion until she is
reinstated.
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Donnette Sonya
Russell-Love in the amount of $2,855.91 for which sum let execution issue.
It is so ordered.
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POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
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, and Kenneth Lawrence Marvin, Staff
Counsel, The Florida Bar, Tallahassee, Florida, and Ghenete Elaine Wright Muir,
Bar Counsel, The Florida Bar, Sunrise, Florida,
for Complainant
Donnette Sonya Russell-Love, pro se, Davie, Florida,
for Respondent
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