in the supreme court of florida the florida bar · pdf filerule 3-7.16 ... rules regulating...
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IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR, Supreme Court Case No. SC15-872
Complainant, The Florida Bar File
v. No. 2012-70,140 (llN)
BENJAMIN RAUL ALVAREZ,
Respondent.
REPLY BRIEF
William Mulligan, Bar Counsel
The Florida Bar
444 Brickell Avenue, Suite M-100
Miami, Florida 33131-2404
(305) 377-4445
Florida Bar No. 956880
Adria E. Quintela, Staff Counsel
The Florida Bar
Lakeshore Plaza II, Suite 130
1300 Concord Terrace
Sunrise, Florida 33323
(954) 835-0233
Florida Bar No. 897000
John F. Harkness, Jr., Executive Director
The Florida Bar
651 E. Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600
Florida Bar No. 123390
Filing # 49237182 E-Filed 11/22/2016 07:44:12 PMR
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mailto:[email protected]:[email protected]:[email protected]
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF CITATIONS .......................................................................................... ii
ARGUMENT ....................................................................................................... 1-15
THE REFEREE ERRED IN STRIKING "I WILL BRING HELL UPON YOUR
FAMILY" FROM PARAGRAPH 7 AND EX. A OF THE FLORIDA BAR'S
COMPLAINT.............................................................................................................1
THE REFEREE ERRED IN NOT GRANTING THE FLORIDA BAR'S MOTION FOR SUMMARY JUDGMENT ...............................................................2
THE REFEREE ERRED IN GRANTING DIRECTED VERDICT AS TO
RULE 4-8.4(a) ............................................................................................................9
THE APPROPRIATE DISCIPLINE FOR RESPONDENT'S MISCONDUCT
IS A 90 DAY SUSPENSION ............................................................................ 10-15
RESPONDENT'S PROFFER .................................................................. 10-11
THE BAR PROCEEDED WITHIN TIME FRAME SET FORTH IN
RULE 3-7.16 ............................................................................................ 11-15
CERTIFICATE OF SERVICE .................................................................................16
CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN ........16
1
TABLE OF CITATIONS
Cases
Flueras v. Royal Carribean Cruises, Ltd., 69So.3d1101 (Fla. 3d DCA 2011) ....... 7
Murrell v. The Florida Bar, 122 So.2d 169 (Fla. 1960) .......................................... 12
Petition of Wolf, 257 So.2d 547 (Fla. 1972) ............................................................ 14
The Florida Bar v. Adorno, 60 So.2d 1016 (Fla. 2011) .................................. 6, 8, 10
The Florida Bar v. Cibula. 725 So.2d 360 (Fla. 1998) ......................................... 6, 7
The Florida Bar v. Cosnow, 797 So.2d 1255 (Fla. 2001) ........................................ 3
The Florida Bar v. Fleisher, Supreme Court Case No. SC13-391 (Fla. 2014) ....... 14
TheFlorida Bar v. Greene, 926 So.2d 1195 (Fla. 2006) ................................... 2, 3, 8
The Florida Bar v. Lifsey, Supreme Court case no. SC07- 747 (Fla. 2008) ........... 13
The Florida Bar v. Lipman, 497 So.2d 1165 (Fla. 1986) ........................................ 15
The Florida Bar v. Marks, Supreme Court Case No. SC13-392 (Fla. 2014) .......... 14
The Florida Bar v. McCain, 361 So.2d 700 (Fla. 1978) ......................................... 15
The Florida Bar v. Norkin, 132 So.3d 77 (Fla. 2013) ............................................... 6
The Florida Bar v. Rubin, 362 So.2d 12 (Fla. 1978) .............................................. 12
The Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007) .................................... 6, 10
The Florida Bar v. Trazenfeld, 833 So.2d 734 (Fla. 2002) ....................................... 2
The Florida Bar v. Vining, 761 So.2d 1044 (Fla. 2000) ........................................... 1
The Florida Bar v. Walter, 784 So.2d 1085 (Fla. 2001) ......................................... 11
Rules Regulating The Florida Bar
Rule 3-7.16 ............................................................................................ 11, 12, 13, 14
Rule 4-8.4(a) .................................................................................................... 8, 9, 10
Rule 4-8.4( d) ....................................................................................................... 8, 10
11
THE REFEREE ERRED IN STRIKING "I WILL BRING HELL UPON
YOUR FAMILY" FROM PARAGRAPH 7 AND EX. A OF THE FLORIDA
BAR'S COMPLAINT
A referee's findings of fact regarding guilt carry a presumption of correctness
that should be upheld unless clearly erroneous or without support in the record. The
Florida Bar v. Vining, 761 So.2d 1044, 1047 (Fla. 2000). The Referee's granting, in
part, the motion which resulted in the striking of the language "I will bring hell upon
your family" was both "clearly erroneous" and "without support in the record.'' Id. at
1047.
In Respondent's Response Brief, he stated that the Bar "interjected these
allegations into its Complaint against Mr. Alvarez in this case" after the grievance
committee had considered the subject text messages in the Lista grievance and found
no probable cause. Response Brief, p. 52. This is a blatant misrepresentation.
Plain and simple, the text messages containing the language "I will bring hell
upon your family" were considered by the grievance committee when they made the
probable cause recommendation in the instant case; these text messages were not
considered by the grievance committee when they made their recommendation of no
probable cause as to the Lista grievance.1
1 A detailed discussion of this issue can be found between pp. 15-88 of the transcript of the motion hearing on December 15, 2015. The Bar would encourage this Court to
1
Furthermore, even ifRespondent was correct, this Court's ruling in The Florida
Bar v. Trazenfeld, 833 So.2d 734 (Fla. 2002) supports the Bar's inclusion of the
language "I will bring hell upon your family" in the instant case.
Finally, Respondent states that the Referee's exclusion of this language was
harmless as the language appeared in a Bar exhibit that was placed into evidence.
However, while the subject language was included within TFB Ex. 17, the Referee
specifically noted in her ruling on March 30, 2016 that she would not consider this
specific language. (See Tr. 123:4-9, 17-19; 124:7-9; 125:22-23; March 30, 2016.) The
June 8, 2011 text message from Respondent to Dr. Lista that stated, "I will bring hell
upon your family" is crucial for this Court's consideration as it amounted to a self-
fulfilling prophecy.
THE REFEREE ERRED IN NOT GRANTING THE FLORIDA BAR'S
MOTION FOR SUMMARY .JUDGMENT
As previously noted in the Bar's Amended Initial Brief, summary judgment is
appropriate where as a matter of law, it is apparent from the pleadings, depositions,
affidavits, or other evidence that there is no genuine issue of material fact and the
moving party is entitled to relief as a matter of law. The Florida Bar v. Greene, 926
review this information as it will become readily apparent that the Bar was providing the Referee with direct answers to her questions whereas Respondent repeatedly provided evasive responses that created confusion for the Referee.
2
So.2d 1195 (Fla. 2006). The standard of review on summary judgment is de novo. See
The Florida Bar v. Cosnow, 797 So.2d 1255 (Fla. 2001).
As detailed in pp. 20 - 41 of the Bar's Amended Initial Brief, the Bar set forth
numerous undisputed facts which warranted the entry of an order granting The Florida
Bar's Mot. For Partial Summ. J. At various times during his dissolution proceedings,
Respondent inserted himself into the litigation by acting as counsel and/or by
communicating directly with opposing counsel. Also, Respondent admitted sending
various emails to opposing counsel, Paul Leinoff, and copying his ex-wife, Dr. Lista,
on many of these emails after being advised not to by opposing counsel. The content
of these emails speak for themselves. They are rude, threatening, demeaning ... and
without question, "prejudicial to the administration of justice." Additionally, the
transcript of Respondent's deposition taken in his dissolution case (which contains
numerous statements that show a total disregard for his ethical obligations as a Bar
member) was attached as Exhibit "L" to The Florida Bar's Mot. for Partial Summ. J.
As all of the aforementioned statements were in print, Respondent's best defense
was to blame Mr. Leinoff, and others for exacerbating the situation. In Respondent's
Response Brief, he paints a picture that he had been acting in an "amicable" fashion
prior to the entrance of Mr. Leinoff as the counsel for Dr. Lista in his dissolution
proc