The Florida Bar v. Arturo Dopazo, III

Supreme Court of Florida
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No. SC15-1305
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THE FLORIDA BAR, Complainant,
vs.
ARTURO DOPAZO, III, Respondent.
[October 5, 2017]
PER CURIAM.
We have for review a referee’s report recommending that Respondent,
Arturo Dopazo, III, 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 sixty days. We have jurisdiction. See art. V, § 15, Fla. Const. We approve
the referee’s findings of fact and recommendation as to guilt. However, as
discussed below, we disapprove the referee’s recommended sanction and instead
suspend Dopazo from the practice of law for one year.
FACTS
In July 2015, The Florida Bar filed a complaint against Dopazo, alleging that
he engaged in misconduct in violation of the Bar Rules. The Bar made two distinct
claims in its Complaint. First, the Bar alleged Dopazo participated in a patient-
client recruiting scheme orchestrated by a nonlawyer, in which Dopazo obtained
clients and paid the nonlawyer for those client referrals. Second, the Bar alleged
Dopazo either directly himself or through an employee or agent knowingly
solicited Penny Jones, the mother of a brain-injured child at the hospital, while the
child was in a coma. A referee was appointed to consider the matter. Following a
hearing, the referee submitted his report, in which he made the following findings
and recommendation.
On December 22, 2011, after a federal trial on the matter concluded, the
Federal Bureau of Investigation sent the Bar materials concerning the investigation
and subsequent indictment of two nonlawyers for their involvement in an illegal
patient-client recruiting scheme with medical clinics involving local lawyers.
After reviewing those materials, the Bar suspected Dopazo to have been involved
in the scheme and to have paid for client referrals. At the final hearing, the Bar
presented evidence that Dopazo provided thirty-one payments to Miami-Dade
Services, Inc., suggesting Dopazo made these payments as part of the scheme to
receive potential client information. Dopazo acknowledged the payments but
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explained they were made on letters of protection for healthcare services furnished
to his clients at the medical clinics. The Bar admitted there was no “smoking gun”
to directly support its allegation that Dopazo was involved in the patient-client
recruiting scheme.
In March 2007, days after her son suffered traumatic brain injury as the
result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial
Hospital Ryder Trauma Center by Dopazo, who successfully solicited her to
become a client of his for a fee. There was no prior relationship between Jones and
Dopazo, nor were his legal services sought by her or anyone acting on her behalf.
The referee found that Dopazo’s appearance at the hospital was completely
unexpected, and while she did apparently retain his services at that time, Jones’
limited education and fragile emotional condition at the time likely rendered her
unable to make a rational decision whether to retain counsel or reject Dopazo’s
efforts to sign her up as a client. In defense of his actions, Dopazo claimed that his
office called him and told him to go see Jones in the hospital intensive care unit;
however, the referee found that this explanation was insufficient.
The referee found that the Bar lacked clear and convincing evidence that
Dopazo was involved in the patient-client recruiting scheme. However, the referee
did find that Dopazo solicited Jones in March 2007. The referee recommends that
Dopazo be found guilty of violating Bar Rule 4-7.18 (Direct Contact with
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Prospective Clients). While the referee does not explicitly identify the aggravating
or mitigating factors, it appears he found as aggravating factors (1) Dopazo’s prior
disciplinary offense of solicitation and (2) the vulnerability of Jones, and found as
mitigating factors (1) unreasonable delay in disciplinary proceedings, to which
Dopazo did not substantially contribute and from which Dopazo suffered
prejudice, and (2) character or reputation.
Based on his findings of fact, recommendation as to guilt, and the
aggravating and mitigating factors, the referee recommends that Dopazo be
suspended from the practice of law for sixty days and that he be ordered to pay the
Bar apportioned costs because it was only partially successful in proving the
charges by clear and convincing evidence. Dopazo seeks review of the referee’s
recommendation of guilt. The Bar seeks cross-review of the referee’s
recommended sanction of a sixty-day suspension.
ANALYSIS
Dopazo challenges the referee’s recommendation that he be found guilty of
violating Bar Rule 4-7.18. To the extent he challenges the referee’s findings of
fact for the 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 Fla. Bar v.
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Jordan, 705 So. 2d 1387, 1390 (Fla. 1998). To the extent Dopazo challenges the
recommendation 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). The party challenging the referee’s findings of fact and conclusion 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).
Dopazo argues Jones’ testimony is not credible because of several
discrepancies in her testimony throughout the investigation. Jones informed FBI
investigators that the individual at the hospital had dark blonde hair and that the
person who approached her in the hospital stated he represented Dopazo but was
not actually Dopazo himself. At the final hearing, Jones testified that Dopazo
himself approached her in the hospital and admitted her testimony had changed
throughout the course of the investigation from 2009 until 2016, but repeatedly
stated she remembered the best she could given the traumatic experience with her
son and how long ago it occurred.
The record reflects Jones testified that she did not request a lawyer while she
was in the intensive care unit with her son, did not request anyone else to find her a
lawyer, did not have anyone contact Dopazo’s office on her behalf, was not
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looking for a lawyer, and had no personal relationship with Dopazo before the
encounter at the hospital. Jones also testified that she was approached by Dopazo
at the hospital, met him two or three times at the hospital, and later went to his
office to pick up her settlement check, where she briefly saw him again. She also
identified Dopazo in the courtroom as the individual who approached her in the
hospital.
Because “the referee is in a unique position to assess witness credibility, this
Court will not overturn his judgment absent clear and convincing evidence.”
Germain, 957 So. 2d at 621; Fla. Bar v. Batista, 846 So. 2d 479, 483 (Fla. 2003).
After hearing testimony from several witnesses, the referee found Jones to be a
credible witness and accepted her testimony over Dopazo’s testimony. The record
also supports the referee’s factual findings, as Jones testified directly to the issue of
solicitation in the final hearing. While Jones’ testimony appears to be inconsistent
as to some facts, Jones consistently maintained that she did not contact Dopazo or
request anyone she knew to contact Dopazo on her behalf for legal representation.
Thus, the referee inherently found this testimony credible over Dopazo’s testimony
and found that Dopazo directly solicited Jones, in violation of Bar Rule 4-7.18.
Accordingly, because the referee was in the best position to judge the
demeanor of the witnesses and their sincerity during the final hearing, and because
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the record evidence supports the referee’s factual findings, we approve the
referee’s findings of fact and recommendation as to guilt.
Next, the Bar asks the Court to find one additional aggravating factor and
disapprove of the referee’s findings as to one mitigating factor. Dopazo suggests
the referee should have found one additional mitigating factor. “[A] referee’s
findings of mitigation and aggravation carry a presumption of correctness and will
be upheld unless clearly erroneous or without support in the record. A referee’s
failure to find that an aggravating factor or mitigating factor applies is due the
same deference.” Germain, 957 So. 2d at 621 (internal citation omitted).
First, the Bar suggests the referee should have found that Dopazo had a
selfish motive as an aggravating factor. Here, the referee carefully weighed the
evidence presented at trial. Because there was not testimony in the record
pertaining to this aggravating factor, the referee’s failure to find this aggravating
factor is not clearly erroneous. Second, the Bar challenges the referee’s finding of
the mitigating factor of unreasonable delay in the disciplinary proceedings. In this
case, the solicitation incident occurred sometime between March 28, 2007, and
April 4, 2007. The Bar learned of Dopazo’s possible solicitation of Jones on
December 20, 2011, when the FBI turned over interview forms to the Bar after the
Rodriguez federal patient-client scheme trial had concluded. On April 18, 2012,
the Bar sent its first inquiry letter to Dopazo, and on July 15, 2015, the Bar filed its
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complaint against Dopazo. The final hearing occurred from April 4, 2016, through
April 6, 2016. The Bar argues it did not contribute to the delay, as it had no way of
knowing about the possible solicitation of Jones until the FBI turned over its
findings in December 2011, and the Bar acted promptly in sending an inquiry
within four months after receiving the FBI materials. Nonetheless, a formal
complaint was not filed until July 2015, more than eight years from the incident in
question. At the final hearing in 2016, testimony showed that witnesses’ memories
had faded due to the time lapse between the incident nine years prior and the final
hearing. Thus, the referee’s finding on this mitigating factor is not clearly
erroneous.
Dopazo argues the referee should have found as a mitigating factor the
remoteness of his prior offense. Dopazo entered a consent judgment to a public
reprimand for solicitation on August 24, 2004, for conduct that occurred in 2002.
The solicitation of Jones occurred in March or April 2007, which was not even
three years after the consent judgment for solicitation. Thus, at the time Dopazo
solicited Jones, his public reprimand should have been fresh in his mind, especially
because he committed the same rule violation of solicitation a second time. See
Germain, 957 So. 2d at 622 (finding the mitigating factor remoteness of prior
offense did not apply because the previous disciplinary case was resolved only
three years before the misconduct spurring the later disciplinary case, even when
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this Court entered its final disposition of the case nearly six years later).
Additionally, the rule violation in Dopazo’s prior disciplinary case is the same as
the rule violation in the instant case, so the remoteness of prior offense is less
relevant. See Fla. Bar v. Varner, 992 So. 2d 224, 230 (Fla. 2008) (referee properly
did not find remoteness of prior disciplinary history as a mitigating factor because
the facts of the most recent 2001 disciplinary case were very similar to the present
case). Therefore, the referee’s failure to find remoteness of the prior offense was
not clearly erroneous. Accordingly, we approve the referee’s findings of
aggravating and mitigating factors in full.
We now turn to the referee’s recommended sanction, a sixty-day suspension.
The Bar urges the Court to disapprove this sanction and impose a two-year
suspension. In reviewing a referee’s recommended discipline, the 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. At the same time, the Court will generally 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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The Florida Standards for Imposing Lawyer Sanctions (Standards) support
suspension as a sanction for unethical solicitation. See Fla. Stds. Imposing Law.
Sancs. 7.2. Additionally, Standard 8.2 provides that when a lawyer previously has
been “publicly reprimanded for the same or similar conduct and engages in further
similar acts of misconduct that cause injury or potential injury to a client, the
public, the legal system, or the profession,” suspension is appropriate. Because
Dopazo received a public reprimand for solicitation in 2004, the Standards support
a suspension in this case.
In cases involving unethical solicitation of clients, this Court has imposed a
range of sanctions depending on the specific facts of each case. Fla. Bar v. Barrett,
897 So. 2d 1269, 1276 (Fla. 2005); see Fla. Bar v. Wolfe, 759 So. 2d 639, 646
(Fla. 2000) (one-year suspension); Fla. Bar v. Weinstein, 624 So. 2d 261, 262 (Fla.
1993) (disbarment); Fla. Bar v. Stafford, 542 So. 2d 1321, 1323 (Fla. 1989) (six-
month suspension); Fla. Bar v. Sawyer, 420 So. 2d 302, 303 (Fla. 1982) (eighteen-
month suspension); Fla. Bar v. Gaer, 380 So. 2d 429, 430 (Fla. 1980) (public
reprimand).
Here, case law supports the Bar’s assertion that the referee’s recommended
sanction of a sixty-day suspension is too lenient. In Weinstein, this Court
disbarred a lawyer who solicited a stranger who was hospitalized with brain
damage after a motorcycle accident when the lawyer also committed a series of lies
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to execute the solicitation. 624 So. 2d at 261-62. In Wolfe, this Court suspended a
lawyer for one year when he solicited clients door to door after a series of
tornadoes struck several counties in Florida, damaging homes and killing or
injuring a large number of people. 759 So. 2d at 640. Similar to the victims in
Weinstein and Wolfe, Jones was a vulnerable victim; she was consumed by her
emotions and lacked a clear mind to consider hiring a lawyer because her son was
in a critical condition after a brain injury from an accident. The solicitation rule
exists to protect potential clients from this very situation in which lawyers act
unethically to take advantage of potential clients, casting distrust on the legal
profession as a whole. Wolfe, 759 So. 2d at 645.
In cases where the lawyer has been previously disciplined for engaging in
conduct of a similar nature, this Court typically takes an incremental approach in
imposing discipline, increasing the severity of discipline in each instance. See Fla.
Bar v. Norkin, 132 So. 3d 77, 92 (Fla. 2013); Fla. Bar v. Morgan, 938 So. 2d 496,
499-500 (Fla. 2006). Dopazo previously received a public reprimand for
solicitation in 2004, and he has committed the same rule violation a second time by
soliciting Jones in this case. Therefore, a more severe sanction is warranted
because Dopazo committed the same conduct for which he was previously
disciplined. Further, “the Court has moved toward imposing stronger sanctions for
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unethical and unprofessional conduct” to protect the legal profession from
dishonor and disgrace. Fla. Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015).
Unethical violations of the solicitation rule, such as the ones committed by
Dopazo in this case, have the potential to harm people who are already in a
vulnerable condition and bring dishonor and disgrace on the entire legal
profession. This Court will not tolerate these improper solicitations and will
“impose severe sanctions on those who commit violations of them.” Barrett, 897
So. 2d at 1277. Therefore, we conclude that a one-year suspension from the
practice of law is warranted in this case.
CONCLUSION
We approve the referee’s findings of fact and recommendation as to guilt,
but disapprove the referee’s recommended sanction of a sixty-day suspension and
instead impose a one-year suspension. Accordingly, Arturo Dopazo, III, is hereby
suspended from the practice of law for one year. The suspension will be effective
thirty days from the filing of this opinion so that Dopazo can close out his practice
and protect the interests of existing clients. If Dopazo 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.
Dopazo shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further,
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Dopazo shall accept no new business from the date this opinion is filed until he is
reinstated.
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Arturo Dopazo, III, in
the amount of $6,769.35, for which sum let execution issue.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, 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 Patrick
Russell, Bar Counsel, The Florida Bar, Miami, Florida,
for Complainant
Andrew S. Berman of Young, Berman, Karpf & Gonzalez, P.A., Miami, Florida,
for Respondent
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