IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant, CASE NO. SC08-1911

v. TFB FILE NO. 2007-11,692(13E)

CAROLYN MARIE HOLT,

Respondent. _____________________________________

RESPONDENT’S ANSWER BRIEF AND CROSS PETITION FOR REVIEW

SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 GWENDOLYN H. HINKLE, ESQUIRE Florida Bar No. 83062 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent

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TABLE OF CONTENTS TABLE OF CONTENTS…………………………………………………………...i TABLE OF CITATIONS………………………………………………………….iii SYMBOLS AND REFERENCES………………………………………………..vii STATEMENT OF THE CASE AND FACTS……………………………………..1 STANDARD OF REVIEW……………………………………………………….13 SUMMARY OF THE ARGUMENT……………………………………………..14 ARGUMENT……………………………………………………………………...16

Issue One: Does Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003), imposing a rehabilitative suspension for misconduct involving misrepresentations prejudicing a client’s interests as well as conflicts of interest in unrelated matters and prior discipline, prove that a non-rehabilitative suspension is outside the range of sanctions in the present case given the absence of client harm and extraordinary mitigating factors after consideration of numerous cases imposing public reprimands and short term suspensions for more analogous conduct? ………………………………..16

A. A short-term non-rehabilitative suspension is supported by

existing case law. ……………………………………………17

B. A short-term rehabilitative suspension is supported by the Standards for Imposing Lawyer Sanctions and meets the purposes of lawyer discipline. ………………………………40

Issue Two: Is a misrepresentation that solely pertains to procedural matters and would not have misled a trier of fact on any substantive issue or given an advantage or disadvantage to any party a “false statement of material fact” pursuant to Rule Regulating The Florida Bar 4-3.3(a)? …………….45

CONCLUSION…………………………………………………………………...48 CERTIFICATE OF SERVICE……………………………………………………49

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CERTIFICATION OF FONT SIZE AND STYLE………………………………49

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TABLE OF CITATIONS

CASES Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003)…………………...20-21

Dep’t of Legal Affairs v. District Court of Appeal, 5th District, 434 So. 2d 310 (Fla. 1983)…………………………………………………25

Florida Bar v. Anderson, 538 So. 2d 852 (Fla. 1989)…………………………33-34

Florida Bar v. Batman, 511 So. 2d 558 (Fla. 1987)………………………………23

Florida Bar v. Charles Behm, Case No. SC06-294……………………………….30

Florida Bar v. Sara Blumberg, Case No. SC07-781………………………………30

Florida Bar v. Brake, 767 So. 2d 1163, 1168 (Fla. 2000)………………………...46

Florida Bar v. Brooks, 336 So. 2d 359 (Fla. 1976)…………………………….…24

Florida Bar v. Anna L. Brown, Case No. SC08-255………………………….26, 28

Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008)…………...……26-27, 28, 31, 41

Florida Bar v. Cibula, 725 So. 2d 360 (Fla. 1998)………………………….....27-28

Florida Bar v. Cocalis, 959 So. 2d 163 (Fla. 2007)……………………………….20

Florida Bar v. Cox, 794 So. 2d 1278 (Fla. 2001)………………………….16-17, 21

Florida Bar v. Day, 520 So. 2d 581 (Fla. 1988)………………………………..…22

Florida Bar v. Fatolitis, 546 So. 2d 1054 (Fla. 1989)……………………………..21

Florida Bar v. Feinberg, 760 So. 2d 933 (Fla. 2000)……………………………..19

Florida Bar v. Forrester, 818 So. 2d 477 (Fla. 2002)……………………………..31

Florida Bar v. Steven Howard Goldfarb, SC07-746………………………….29, 30

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Florida Bar v. Hagglund, 372 So. 2d 76 (Fla. 1979)…………………………..23-24

Florida Bar v. King, 174 So. 2d 398 (Fla. 1965)………………………………….24

Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997)……………………..…31-32, 36

Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997)……………………...16, 37-38

Florida Bar v. Julian Stanford Lifsey, SC07-747…………………………………29

Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983)………………………………….43

Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994)………………………………13

Florida Bar v. McLawhorn, 535 So. 2d 602 (Fla. 1988)………………………….21

Florida Bar v. Morse, 587 So. 2d 1120 (Fla. 1991)……………………….36, 37-38

Florida Bar v. Oxner, 431 So. 2d 983 (Fla. 1983)………………………………...34

Florida Bar v. Pearce, 356 So. 2d 317 (Fla. 1978)………………………………..24

Florida Bar v. Poplack, 599 So. 2d 116 (Fla. 1992)……………………….32-33, 34

Florida Bar v. Rose, 607 So. 2d 394 (Fla. 1992)………………………………….36

Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003)………………………16, 38-39

Florida Bar v. Sax, 530 So. 2d 284 (Fla. 1988)…………………………………...22

Florida Bar v. Varner, 780 So. 2d 1 (Fla. 2001)……………………….35-36, 37-38

Florida Bar v. Winter, 505 So. 2d 1337 (Fla. 1987)…………………………..23-24

Florida Bar v. Wohl, 842 So. 2d 811 (Fla. 2003)…………………………...........13 Florida Bar v. Wright, 520 So. 2d 269 (Fla. 1988)……………………………22-23

In re: Amendments to R. Regulating Fla. Bar, 2009 WL 3858062 (Fla. 2009)…..45

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In re Frank 753 So. 2d 1228 (Fla. 2000)………………………………………….25

State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008)………………………………46

RULES REGULATING THE FLORIDA BAR 3-4.2………………………………………………………………………………30

3-4.3…………………………………………………………………….…21, 30, 36

3-7.5(c)(5)…………………………………………………………………………13

Preamble…………………………………………………………………………..45

4-1.3……………………………………………………………………………….27

4-1.4(a)……………………………………………………………………27, 30, 39

4-1.5(a)……………………………………………………………………………30

4-1.7……………………………………………………………………………….39

4-1.7(a)……………………………………………………………………………27

4-3.3………………………………………………………………………………39

4-3.3(a)…………………………………………..……11, 12, 15, 21, 29, 45, 47, 48

4-3.3(a)(1)…………………………………………………………………………45

4-3.4(a)……………………………………………………………………………31

4-4.1(a)……………………………………………………………………………36

4-8.1(a)……………………………………………………………………………39

4-8.4(b)……………………………………………………………………………36

4-8.4(c)………………………………………...11, 21, 27, 28-29, 30, 31, 36, 39, 45

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4-8.4(d)………………………………………………..11, 21, 29, 30, 36, 39, 45, 46

FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS

Preface……………………………………………………………………………25

3.0.……………………………………………………………………………..40-41

6.12……………………………………………………………………………..…32

A.B.A. MODEL RULES OF PROFESSIONAL CONDUCT 3.3(a)………………………………………………………………………………45

FLORIDA STATUTES 732.502(1)(c) (1977)……………………………………………………………...21 817.234(1)(a) (Supp. 1998)..……………………………………………………...36 837.011 (2004)…………………………………………………………………….47 BLACK’S LAW DICTIONARY, 6th ed. 1990………………………………..46-47

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SYMBOLS AND REFERENCES

I.B. = The Florida Bar’s Initial Brief. RR. = Report of Referee. R. Exh. = Respondent’s Exhibit from Final Hearing. TFB Exh. = The Florida Bar’s Exhibit from Final Hearing. TT1. = Transcript of Final Hearing before Referee on May 29, 2009. TT2. = Transcript of Continuation of Final Hearing before Referee on

June 26, 2009. TT3. = Transcript of Ruling Hearing before Referee on July 20, 2009.

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STATEMENT OF THE CASE AND FACTS In its Statement of Facts and of the Case, The Florida Bar did not discuss the

six significant and substantial mitigating factors found by the Referee. The

Referee noted the absence of any disciplinary history in any jurisdiction since Ms.

Holt was admitted to the Maryland Bar in 1992, Washington, D.C. Bar in 1995,

and The Florida Bar in 1997. (TT3. 13; TT2. 16).

Next, the Referee found substantial involvement in the community,

specifically referencing her devotion to disadvantaged children for over twenty

years. In pertinent part, the Referee found Ms. Holt has been “willing to take care

of children and accept children who are otherwise not subject to the attention of

individuals interested in helping out children.” (TT3. 13). For approximately eight

years in the 1980s, Ms. Holt mentored and consistently accepted weekend

supervisions of three young children she had met while volunteering at a battered

women’s shelter. After moving to Florida, Ms. Holt and her husband became

licensed adoptive parents to a troubled foster child, caring for him three days a

week and over weekends until his violent behavioral problems threatened the

safety of her younger biological son. Most recently, in March 2009, Ms. Holt and

her husband accepted placement of a sibling group of four young children who had

been removed from their home on allegations of torture and neglect. Ms. Holt is

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currently raising five children, four of whom have significant emotional and

behavioral problems based on their history of abuse and neglect.

Ms. Holt’s extraordinary efforts to help children began in earnest when she

was still living in Washington, D.C., in the late 1980s, and volunteering her time at

a battered woman’s shelter called My Sister’s Place. (TT1. 9; TT2. 63). Ms. Holt

was deeply impacted by the conditions and suffering of the children she

encountered at the shelter and lamented that she never knew what happened to the

children after they left the shelter. (TT2. 63).

At this shelter, in or about 1990, Ms. Holt began over a decade long

commitment to a young and troubled family consisting of an abused mother, Ms.

Marcia Brown, and her three children, aged 7 and 6 years old, and a newborn baby.

Ms. Holt spent time with them while they resided at the shelter for six to nine

months and remained in contact with them when the family moved to live with the

children’s grandmother. (TT1. 10-11). Ms. Holt offered to take the children for

the weekends to give some relief to the mother, who was battling addiction, and to

expose the children to other surroundings. (TT2. 65). Although Ms. Brown had

short intervals of sobriety, the children were moved every few months to different

households, their needs not met academically, physically or emotionally. (TT2.

65). The oldest, Michael Brown, was a resourceful seven year old and he would

call Ms. Holt to let her know where they were staying. (TT2. 64). When Michael

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did not call, Ms. Holt would go to the grandmother’s home to seek out the family

and offer assistance. (TT2. 65). Ms. Holt would take the children almost every

weekend, many times for the entire weekend, and continued to do so for the next

eight years until she moved to Florida in 1998. (TT1. 16, 65-67). During this

time, Ms. Holt spent time with them reading, visiting book stores, teaching them to

swim, and otherwise emphasizing the importance of education. Ms. Holt provided

monetary and emotional support to these children; she offered to pay private

tuition when the oldest was assigned to a struggling public school. (TT2. 74).

Even when Ms. Holt moved to Florida in 1998, she continued to keep in contact

with the children. (TT2. 72).

The oldest child, Michael Brown, is now twenty-six years old and a petty

officer, second class, in the Navy and assigned to the Pentagon. (TT1. 8, 16).

Petty Officer Brown received special permission for leave to come to Florida and

testify in these proceedings. Petty Officer Brown explained that Ms. Holt had

encouraged him and put him on the path to college. His mother, Marcia Brown,

filed an affidavit further describing Ms. Holt’s exceptional contribution of time and

support for her entire family, who were strangers until they met Ms. Holt at My

Sister’s Place. Ms. Brown’s dire circumstances as a victim of domestic violence

and as an addict were exacerbated by her struggle to care for her three children.

Upon being introduced to Ms. Holt, Ms. Brown avers that Ms. Holt “immediately

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took to [her] three children,” was “resourceful,” and was never “judgmental,

condescending or expecting.” Ms. Brown praises the time Ms. Holt invested in

her children and credits Ms. Holt with “assisting [her family] to pave a path for a

better future,” and has immense gratitude for Ms. Holt’s “tenacious . . . love and

support.” (R. Exh. 10).

After Ms. Holt moved to Florida in 1998, she continued to serve the

community, becoming involved with an organization called “The Children’s

Home, Incorporated,” which deals with adoptive and residential children that have

been removed from their biological families due to extreme abuse and neglect.

(TT2. 45, 48-49, 70). Ms. Holt and her husband have contributed monetarily to

this organization, giving $10,000 when The Children’s Home was desperately in

need of funds. (TT2. 42, 49; R. Exh. 12).

When the Holts’ biological son turned six years old, Ms. Holt and her

husband took courses to become eligible as an adoptive family in 2005, and

ultimately became matched with a child named Najuan through The Children’s

Home. (TT2. 45). Ms. Holt and her husband envisioned becoming adoptive or

foster parents and purchased a home large enough to have room for many children

who had no where else to go. (TT2. 85-86). Najuan began visitation with the

Holts and they dedicated a room in their home for him. (TT2. 47). Najuan was an

extremely violent and aggressive child with many behavioral issues. (TT2. 48).

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When Najuan was tested as a standard part of the adoption process, the Holts

learned that he was unable to progress academically and would require long-term

services, which he would qualify to receive as a ward of the State. (TT2. 49-50).

While Ms. Holt kept going to classes to try to assist Najuan with his class work and

behavioral problems, others became concerned about Najuan’s violence toward

Ms. Holt’s biological son, who was younger than Najuan. (TT2. 50-51). Due to

these factors, especially the welfare of the younger child, the Holts decided not to

adopt Najuan. (TT2. 86-87). Ms. Holt, however, wished to continue to provide

support to Najuan, but in February and March 2007, the agency determined that it

was not in Najuan’s best interest for her to continue contact with him because he

was too attached to her. (TT2. 51-52, 54, 75, 89).

Ms. Holt was devastated by her inability to see Najuan and felt as though she

had abandoned him. (TT2. 90). Not only was Ms. Holt mourning her own loss at

not being able to see Najuan, she experienced overwhelming guilt when she was

unable to personally deliver a birthday present to Najuan to let him know they had

not forgotten about him in April 2007. Najuan’s birthday was April 2, just days

before the first hearing on April 10, 2007, at which Ms. Holt misrepresented to the

judge that she had attempted to contact her expert witness. (TT1. 31).

In 2008, Ms. Holt and her husband became qualified as foster parents. (TT2.

53). The assistant program manager for The Children’s Home, Ms. Ginger Martin,

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contacted Ms. Holt in March 2009 to offer the placement of a newborn in the

Holts’ home. Ms. Holt understood that newborns were easily placed and

communicated that to Ms. Martin. (TT2. 91). Ms. Martin testified that she “half-

[heartedly]” mentioned they were attempting to place a four-sibling group, who

had been separated into two different homes, and to Ms. Martin’s surprise, the

Holts agreed. (TT2. 54, 56, 91-92). All four children, aged 10, 9, 7 and 4 (now 10,

9, 8 and 5), moved into the Holts’ home just two days later. (TT2. 92).

The four children had previously been in the system and had been removed

again after their parents were charged with excessive corporal punishment as well

as torture and neglect. (TT2. 55). Based on the children’s tremendous hardships,

they have developed extreme behavioral problems. For example, the oldest child

starts fires and has done so in the Holts’ home on at least two occasions; he

urinates and defecates outside the bathroom. (TT2. 58, 96). The other children are

also aggressive toward each other; the girls spit in Ms. Holt’s face. (TT2. 58, 93).

Ms. Martin has observed Ms. Holt interacting with the children and watched her

“maintain calm and focus with the children” and “de-escalate” problem behavior.

(TT2. 57). Ms. Holt has created a strict schedule to emphasize disciplined routines

and the importance of school work in a loving environment. (TT2. 94). The

children are still placed in the Holts’ home and the Holts hope to adopt them once

the parental rights issues are adjudicated. (TT2. 58). Ms. Holt and her close

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family friends have expressed concern that the dramatic reduction of Ms. Holt’s

income, caused by the loss of referrals from the Hillsborough County referral line

due to her pending discipline, jeopardizes the Holts’ continued ability to afford

their current home, purchased at the height of the market with the intent to fill it

with foster children. (TT1. 34; TT2. 99-100).

In addition to Ms. Holt’s long-standing devotion to community service, the

Referee recognized the devastating emotional distress Ms. Holt was experiencing

at the time of her misrepresentations to the judge and found that the mitigating

circumstance of emotional distress was applicable. (TT3. 16-17). Ms. Holt’s close

friend and former co-worker, Sue Ellen Krick, Esquire, who was a former police

officer as well as a current member of The Florida Bar, described Ms. Holt as

completely distraught and “losing it” when Ms. Holt was unable to see Najuan on

his birthday in April 2007. (TT1. 31). Ms. Krick told Ms. Holt to get counseling

and Ms. Holt acknowledged it was the only time she has sought counseling. (TT1.

31; TT2. 90).

The Referee further determined that the mitigating circumstance of remorse

was applicable and found Ms. Holt’s regret to be sincere. Upon examination by

the Bar, Ms. Holt was asked, “[w]hat do you feel remorse about?” Ms. Holt

responded as follows:

A: A judge is entitled to an honest response to any question, or anything a judge wants. And, quite frankly, it’s disgusting for

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any attorney to do what I did here. And I think that it’s going to affect Judge Crenshaw, that she will not believe lawyers as much in the future. I feel like a lawyer has a certain obligation that’s high up there, and you cannot conduct yourself like this. And my remorse goes from not just to Judge Crenshaw, and the Florida Bar, but also to my son. I mean, I read books on how to raise children with character, and I turn around and do this, and it’s disgusting. I’m disgusted with myself.

TFB Exh. 12, pg. 48, ln. 5- pg. 49, ln. 6.

Ms. Holt, who had consistently mentored the Brown children throughout

their lives, confessed her serious mistakes to her now grown charge, Michael

Brown, explaining that she had lied to a judge and then lied to cover her initial

deception. (TT1. 16). Petty Officer Brown testified that Ms. Holt felt very bad

about her conduct. (TT1. 16). Similarly, Ms. Krick testified that Ms. Holt was

“mortified” and described her actions as “terrible” and deeply regretted panicking

to cover-up her first lie instead of immediately taking responsibility. (TT1. 26, 27,

33). Each of Ms. Holt’s character witnesses, including practicing Florida

attorneys, averred that Ms. Holt expressed her remorse to them. (R. Exhs. 5-9).

The Referee also found good character and reputation as a mitigating factor

and held “[i]t goes without question, [Ms. Holt] is a skilled and qualified lawyer

and has much to offer the legal community.” (TT3. 19-20). Several witnesses

expressed their positive opinion of Ms. Holt’s reputation for good character and

professionalism. For example, Eugene Brinn, Esquire, averred that Ms. Holt was

“extremely competent and of good character.” (TT3. 14; R. Exh. 6). Scott

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Distasio, Esquire, indicated Ms. Holt was “honest and trustworthy.” (TT3. 15; R.

Exh. 7). Similarly, Lisa Viscardi stated Ms. Holt was “honest, ethical” and

possessed “integrity,” and Varinia Van Ness, Esquire, opined that Ms. Holt was

“professional, very knowledgeable, remorseful and of good character.” (TT3. 14-

15; R. Exhs. 8, 9). In addition, the Referee noted evidence of prior ethical and

honest conduct, as described by Attorney Kevin Mercer. Mr. Mercer was opposing

counsel in a matter in which Ms. Holt’s client had concealed facts pertaining to a

pre-existing injury. Rather than accepting an offer of settlement, Ms. Holt

withdrew from the case. (TT3. 13-14; R. Exh. 4).

Ms. Holt admitted each of the factual allegations in the Bar’s Complaint. At

a scheduling conference held on April 10, 2007, at which Ms. Holt represented the

Plaintiff in a nursing home negligence action, the judge inquired into the status of

discovery depositions. (TT2. 23, 24). Ms. Holt had already scheduled the

depositions of the defense witnesses, but opposing counsel had not yet contacted

her to schedule her experts’ depositions. (TT2. 24-25, 115). The judge was

displeased with counsels’ failure to schedule the depositions and recessed the case

management conference for the attorneys to coordinate depositions of the

Plaintiff’s witnesses. (TT2. 2, 25, 76). Ms. Holt had the contact information for

one of her witnesses, her expert nurse, and was able to contact her during the

recess, but did not have the contact information for her expert doctor. (TT2. 25-

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26). Ms. Holt, who is a solo practitioner with no support staff, could not simply

call the office to obtain the contact information and did not want to further upset

the judge by explaining that she was unable to comply with the judge’s

instructions. (TT2. 72, 77, 78). Ms. Holt falsely told the judge that she had

attempted to contact the expert doctor during the recess, but he was unavailable.

(TT2. 26-27).

The judge continued the scheduling conference to April 12, 2007, and Ms.

Holt left with the intention of immediately contacting the doctor to coordinate the

deposition and still comply with the court’s directive. It is undisputed that Ms.

Holt called the doctor’s office the afternoon of the hearing. (TT2. 29). When Ms.

Holt called the doctor’s office on April 10, 2007, the afternoon of the hearing,

however, she discovered he had passed away. (TT2. 28). Instead of confessing to

the judge that she did not have the witness’ contact information with her in court,

Ms. Holt was scared and made the regrettable mistakes of attempting to cover-up

her initial misrepresentations by continuing her false story at two hearings before

the judge and then in her initial communications with the Bar. (TT2. 80). Ms.

Holt ultimately acknowledged all of the misconduct to the grievance committee,

gave a truthful deposition expressing her remorse prior to the finding of probable

cause, and wrote a letter of apology to the judge. (TT2. 81-82; R. Exh. 14).

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The Referee examined Ms. Holt’s misrepresentations in the context of the

litigation and evaluated the impact of her actions on the case. The Referee

determined that Ms. Holt’s initial misrepresentation was “not for selfish gain” and

that her subsequent misrepresentations became selfish because she was attempting

to avoid sanctions. (TT3. 10). The Referee found that Ms. Holt’s

misrepresentations caused “no actual harm to the parties.” (TT3. 12). In pertinent

part, the Referee explained as follows:

[N]o advantage or disadvantage was made as a result of this. This was a procedural issue not substantive issue such that the misrepresentations were to mislead a [trier] of fact such as in a trial or hearing on a substantive legal issue.

(TT3. 12). Although the Referee found that Ms. Holt’s repeated

misrepresentations to cover her initial false statement should be considered in

aggravation, the Referee found six (6) mitigating circumstances that the Bar does

not contest.

The Referee found Ms. Holt guilty of violating Rules Regulating The

Florida Bar 4-8.4(c), 4-8.4(d), and 4-3.3(a). After considering the nature of the

misrepresentations, the aggravating and mitigating circumstances, as well as the

purposes of discipline, the Referee recommended a ninety-day suspension and one-

year term of probation with the conditions that Ms. Holt receive counseling for

stress management and that she complete an ethics course. The Florida Bar

initially advised this Court on August 24, 2009, that it would not petition for

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review, but then reversed its position on September 30, 2009. The Florida Bar

does not contest the mitigating circumstances or the Referee’s factual findings, but

urges this Court to reject the Referee’s recommended ninety day suspension and

impose a rehabilitative suspension. Ms. Holt has filed a Cross-Petition to evaluate

whether her misrepresentations to the court were material so as to sustain a Rule 4-

3.3(a) violation, and to consider whether the totality of the circumstances warrants

the imposition of a less severe sanction.

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STANDARD OF REVIEW

The burden is on “the party seeking review to demonstrate that a report of

referee sought to be reviewed is erroneous, unlawful or unjustified.” R. Regulating

Fla. Bar 3-7.5(c)(5). Because the Referee is in a better position to evaluate the

demeanor and credibility of the witnesses, the Court “neither re-weighs the

evidence in the record nor substitutes its judgment for that of the Referee so long

as there is competent substantial evidence in the record to support the Referee’s

findings.” Florida Bar v. Marable, 645 So. 2d 438, 442 (Fla. 1994). The Referee’s

recommended sanction should be upheld if it has a “reasonable basis in existing

case law.” Florida Bar v. Wohl, 842 So. 2d 811, 815 (Fla. 2003)(citations

omitted).

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SUMMARY OF THE ARGUMENT

The Referee found that there was “no actual harm to the parties,” that “no

advantage or disadvantage was made as a result,” and that it was “not a

misrepresentation such as to mislead a [trier] of fact on a substantive legal issue.”

The Referee further noted that the initial misrepresentation to the judge was not for

“selfish” reasons.

None of the cases cited by the Bar or herein involves mitigation close to Ms.

Holt’s vast and selfless lifelong dedication to caring for abused and neglected

children. Ms. Holt’s contributions began in her early twenties and ranged from the

care of three young children she met while volunteering at a battered women’s

shelter, to her current devotion, even in this difficult economic time, as an adoptive

foster mother housing and caring for a sibling group of four children, aged 10, 9, 8

and 5, who were removed from their home due to torture and neglect and who

suffer from emotional and behavioral problems. The Referee meticulously

outlined his findings of six mitigating factors, including the absence of prior

disciplinary history, substantial involvement in the community, prior ethical

conduct, good character, remorse and emotional stress. The Bar does not contest

the Referee’s findings.

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The Bar incorrectly states that the majority of cases involving

misrepresentations results in a rehabilitative suspension. To the contrary,

numerous cases have resulted in public reprimands and non-rehabilitative

suspensions involving similar and more egregious misrepresentations. Instead, the

Bar ignores the appropriate standard of whether the recommended sanction has a

reasonable basis in existing case law. The recommended and severe penalty of a

ninety-day suspension and one year of probation clearly falls within the range of

sanctions for analogous conduct. In the face of case law supporting the

recommended sanction, the Bar simply asks this Court to substitute its judgment

for that of the Referee. The uncertainty of the Bar’s position is underscored by its

initial declaration to the Court it would not seek review of the recommended

sanction followed by its flip-flop in urging a more severe penalty. Nevertheless, a

non-rehabilitative suspension is supported by the case law, as well as the Standards

Imposing Lawyer Sanctions, and a rehabilitative suspension is not necessary given

Ms. Holt’s sincere and deep remorse and substantial rehabilitation.

Ms. Holt seeks review of whether she made a “false statement of material

fact or law to a tribunal” as prohibited by Rule 4-3.3(a) (emphasis added).

16

ARGUMENT

Issue One

Does Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2003), imposing a rehabilitative suspension for misconduct involving misrepresentations prejudicing a client’s interests as well as conflicts of interest in unrelated matters and prior discipline, prove that a non-rehabilitative suspension is outside the range of sanctions in the present case given the absence of client harm and extraordinary mitigating factors after consideration of numerous cases imposing public reprimands and short term suspensions for more analogous conduct?

The Florida Bar has not shown that the Referee’s recommended sanction of

a non-rehabilitative suspension and probation does not have a reasonable basis in

existing case law. Although this Court has greater discretion in reviewing sanction

recommendations, this Court has repeatedly explained as follows:

[T]he referee in a Bar proceeding again occupies a favored vantage point for assessing key considerations – such as a respondent’s degree of culpability and his or her cooperation, forthrightness, remorse and rehabilitation (or potential for rehabilitation). Accordingly, we will not second-guess a referee’s recommended discipline as long as that discipline has a reasonable basis in existing caselaw.

Florida Bar v. Lecznar, 690 So. 2d 1284, 1288 (Fla. 1997). In evaluating a

recommended sanction, the standard of review not only gives deference to the

referee but requires restraint in not substituting the opinion of the Court for that of

the referee as long as the recommended sanction has a reasonable basis in existing

case law. Justice Lewis discussed this standard in cases involving

misrepresentations in his dissenting opinion in Florida Bar v. Cox, 794 So. 2d 1278

(Fla. 2001). In pertinent part, Justice Lewis wrote:

17

It must be recognized that cases involving the type of behavior for which Cox must respond here have generated discipline covering the entire range of sanctions from public reprimands to disbarments. There can be no doubt that the violation of the duty of candor undermines the system; however, with the previously approved discipline having such a broad range based upon the decisions from this Court, a rejection of the determination by the referee here is, in my view, merely substituting the personal views of those here for those of the referee, a result which the decisions of this Court counsel against.

Cox at 1289 (Lewis, J., dissenting).

The Bar cannot show that a non-rehabilitative suspension falls outside the

range of sanctions in existing case law. Rather than providing a comprehensive

analysis of cases addressing misrepresentations to the court and during the

disciplinary process, the Bar merely requests imposition of a rehabilitative

suspension without consideration of the nature and consequence of the

misrepresentation or the extraordinary mitigating circumstances. The Bar’s limited

analysis does not give appropriate consideration to the standard of review.

A. A short-term non-rehabilitative suspension is supported by existing case law.

Contrary to the Bar’s representations, numerous misrepresentation cases

have resulted in public reprimands and non-rehabilitative suspensions even with

more prejudicial misconduct and less impressive mitigating circumstances.

Respondent has not minimized her mistakes; any misrepresentation by an attorney

is serious misconduct. Nonetheless, even acts of dishonesty have gradations of

18

egregiousness. Misrepresentations to gain an advantage, that prejudice clients or

other parties, that involve theft or other pecuniary benefit, or misrepresentations

spanning several different matters warrant more severe sanctions such as a

rehabilitative suspension. In contrast, the Referee properly considered the nature

of Ms. Holt’s misrepresentations that she had attempted to contact her expert

witness during a court recess.

The Referee found that there was “no actual harm to the parties,” that “no

advantage or disadvantage was made as a result,” and that it was “not a

misrepresentation such as to mislead a [trier] of fact on a substantive legal issue.”

(TT2. 12). The Referee further noted that the initial misrepresentation to the judge

was not for “selfish” reasons and that Ms. Holt had not contumaciously defied the

trial court’s directive to schedule her expert’s deposition, but had intended to

comply when she returned to her office until, of course, she discovered he had

passed away. (TT3. 10). Her actions became selfish once Ms. Holt realized that

her false statement would be discovered and attempted to conceal her

misrepresentation. The Referee further recognized that Ms. Holt’s

misrepresentations to the judge were made at a time when she was under the

influence of extreme emotional distress due to her forced separation from Najuan,

the troubled foster child that she loved but was unable to adopt.

19

Ms. Holt succumbed to the grave but infinitely human mistake of covering

up her initial deception for fear of the consequences. This Court, in Florida Bar v.

Feinberg, 760 So. 2d 933 (Fla. 2000), has acknowledged the predictability of this

problem in which an attorney repeats the same lie to conceal an initial

misrepresentation. In Feinberg, the Court imposed a public reprimand when the

respondent, an assistant state attorney, made repeated misrepresentations to the

court and to opposing counsel as to whether he had contact with a represented

criminal defendant. Since Mr. Feinberg’s improper contact with the criminal

defendant had been made in the presence of law enforcement, there were witnesses

who would have been able to confirm his contact. Mr. Feinberg only admitted his

contact with the represented criminal defendant when he knew that his

misrepresentation was going to be discovered. In ultimately reprimanding Mr.

Feinberg, the Court stated as follows:

Although we understand the predicament in which Feinberg found himself, he nevertheless exercised poor judgment by affirmatively misleading and being untruthful with opposing counsel, and continuing to meet with the defendant after realizing that, contrary to the defendant’s statements, he was represented by counsel. As is so often the case, had Feinberg simply relied upon the truth when confronted with the facts, the resulting trail of deception would have never occurred. It is this perpetuation of the untruthful approach that aggravates that which may have initially been subject to understanding.

Feinberg at 939.

20

Similarly, had Ms. Holt immediately corrected the initial misrepresentation

with the judge when she discovered the doctor had passed away, this matter would

have likely been addressed by the court’s inherent authority to sanction attorneys

without the intervention of The Florida Bar. While Ms. Holt’s misrepresentations

were repeated until she ultimately admitted her misconduct during the grievance

committee’s investigation, there is no true pattern of a dishonest character trait

which would have revealed itself in multiple matters. While the Feinberg Court

recognized that repeating the same lie instead of taking responsibility and

correcting the misrepresentation aggravates the misconduct, the Court recognized

that the public reprimand had a “reasonable basis in existing case law” and refused

to “second guess” the referee. Id. at 938-39.

This Court has recently rejected the Bar’s appeal for a suspension and

publicly reprimanded an attorney after the Fourth District Court of Appeal issued

an opinion “condemn[ing]” him for having ex parte communications with the

opposing party’s expert witness and then engaging in “the strategic concealment”

of the expert’s records. Florida Bar v. Cocalis, 959 So. 2d 163, 167-168 (Fla.

2007); Bradley v. Brotman, 836 So. 2d 1129, 1136 (Fla. 4th DCA 2003) (discussing

attorney Cocalis’ misconduct). In the underlying case, the Fourth District found an

intent to gain an advantage, noting that it did not “comport with fundamental

fairness for an attorney to mislead his opponent and then reap the benefit of his

21

own misconduct.” Bradley at 1134. Cocalis’ misconduct required a reversal of the

verdict and a new trial. Id. at 1136. Cocalis violated Rule Regulating The Florida

Bar 3-4.3, prohibiting the commission of any act that is unlawful or contrary to

honesty and justice, which this Court found was not “minor misconduct.” Id. at

166. Although Cocalis violated Rule 3-4.3 rather than Rules 4-8.4(c), 4-8.4(d) or

4-3.3(a) as charged here, Cocalis’ conduct involved dishonesty as well as an intent

to seek an advantage and unfairly impact the outcome of the case.

As the Cox dissenting opinion discussed, this Court has publicly

reprimanded attorneys who made intentional false statements in a variety of

settings. Cox at 1289-90 (Lewis, J., dissenting). For example, an attorney found

guilty of committing forgery received a public reprimand. See Florida Bar v.

Fatolitis, 546 So. 2d 1054 (Fla. 1989). In Fatolitis, the attorney forged the name of

his wife as a witness to a Last Will and Testament that he had prepared. Id. The

attorney also falsified the date on the will and the referee further found him guilty

of violating Florida Statutes, section 732.502(1)(c), by signing his wife’s name to

the Last Will and Testament. Id.

An attorney who acquired an interest in his client’s property, which was the

subject of post-dissolution litigation, and who attempted to conceal the acquisition

received a public reprimand. See Florida Bar v. McLawhorn, 535 So. 2d 602 (Fla.

1988). In McLawhorn, the attorney represented the former husband when the

22

former wife filed a motion to compel the husband’s cooperation in selling a home

and to impose a lien on the husband’s share of the proceeds to cover back child

support. Before the motion was called for hearing, Mr. McLawhorn obtained a

quitclaim deed of the husband’s interest in the property. Mr. McLawhorn then

filed a pleading on behalf of his client, which contained known false statements as

to the ownership of the property. Id.

The Court also held a public reprimand was warranted for an attorney’s

misconduct in submitting a “notarized” pleading to a court when the attorney knew

or should have known that the pleading contained a false factual averment. See

Florida Bar v. Sax, 530 So. 2d 284 (Fla. 1988). Mr. Sax even wrongfully

presented the document as notarized, when he had signed the pleading outside the

presence of a notary and only later arranged the affixing of the jurat by the notary.

Id. Similarly, an attorney who was involved in a legal support services company

received a public reprimand for notarizing numerous affidavits without requiring

the affiants to personally appear before her. See Florida Bar v. Day, 520 So. 2d

581 (Fla. 1988).

A public reprimand was approved for an attorney who falsified his discovery

responses in his own marriage dissolution proceeding. See Florida Bar v. Wright,

520 So. 2d 269 (Fla. 1988). Mr. Wright was asked to reveal any real property sale

contracts in which he had an interest. Although there were two such contracts, Mr.

23

Wright wrongfully failed to divulge them. Mr. Wright later admitted that the

contracts were subject to discovery and should have been produced and that he had

engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. Id.

Although The Florida Bar argues that a rehabilitative sanction is warranted

because Ms. Holt initially lied to the Bar before admitting her misconduct during

the grievance committee’s investigation, a public reprimand has been approved

where the attorney maintained his false testimony during a bar disciplinary

proceeding. See Florida Bar v. Batman, 511 So. 2d 558 (Fla. 1987). In Batman,

the referee found that the attorney testified falsely concerning his practice of law in

representing clients when his license was suspended for non-payment of dues. Id.

Even in a seven-count complaint alleging misconduct that included conduct

involving dishonesty, fraud, deceit, or misrepresentation and inappropriate lawsuits

against clients for fees, the Court has approved a public reprimand as the

appropriate sanction. See Florida Bar v. Winter, 505 So. 2d 1337 (Fla. 1987). In

contrast, Ms. Holt’s misstatements were limited in scope and caused no client

harm.

A public reprimand was imposed in a case involving an attorney found

guilty of submitting a false affidavit in a lawsuit filed against a former client,

notwithstanding additional misconduct that included failing to inform a client of a

substantial conflict of interest. See Florida Bar v. Hagglund, 372 So. 2d 76 (Fla.

24

1979). The referee found that the attorney acted in a callous and indifferent

manner and that he used his superior position as an attorney to take an unfair

advantage over someone with lesser education and sophistication. Id.

The Court has approved a public reprimand for an attorney’s knowing

participation in plans for witnesses to commit perjury. See Florida Bar v. Pearce,

356 So. 2d 317 (Fla. 1978). In a case related to Pearce, another attorney appeared

and testified falsely under oath before a coroner’s inquest involving a shooting

death. See Florida Bar v. Brooks, 336 So. 2d 359, 361 (Fla. 1976). The attorney

was found to have testified untruthfully regarding his absence from the general

area of the shooting. Id.

Similarly, the Court has approved a public reprimand for an attorney who

gave false testimony before a grand jury. See Florida Bar v. King, 174 So. 2d 398

(Fla. 1965). In King, the attorney not only testified falsely, but also failed to

dissuade other witnesses from testifying falsely before the grand jury investigating

bribery in the attorney’s senatorial campaign. Id. The attorney’s subsequent

conduct, delay of nine years in the proceeding and other factors mitigated the

sanction from disbarment to a public reprimand, even though that the Court found

his actions “extremely reprehensible and damaging to the legal profession.” Id.

This Court has not only approved public reprimands in lawyer regulation

cases for attorneys found guilty of engaging in dishonest conduct, but also in

25

Judicial Qualifications Commission proceedings, when judges have been found

guilty of misrepresentations. See In re Frank 753 So. 2d 1228 (Fla. 2000). The

judge in Frank made a false statement in an attorney grievance proceeding that he

initiated against his daughter’s then-husband and further failed to disclose his

connection to counsel who was representing his daughter in the divorce

proceeding. Ms. Holt’s misstatements regarding her attempt to contact her expert

witness to schedule depositions and her initial concealment of that

misrepresentation did not rise to the level of misconduct committed in Frank and

the other cases cited above, particularly in light of the mitigating circumstances.

The Standards for Imposing Lawyer Sanctions were created, in part, to meet

the goal of imposing consistent sanctions for similar misconduct. The Standards

are utilized in determining “acceptable pleas” between the Bar and respondents, as

well as guiding a referee’s recommendations after a contested matter. Stds.

Imposing Law. Sancs. (Preface). As such, uncontested Reports of Referee

approved by this Court may offer some persuasive authority in considering the

range of sanctions imposed for misrepresentations.1

1 This Court has previously explained while a Court’s own unwritten decision is “not a precedent for a principle of law and should not be relied upon for anything other than res judicata . . . it would not be improper for counsel, in an effort to persuade a court to adopt a certain position, to refer to such a decision and thereby suggest to the court how it previously viewed the proposition.” Dep’t of Legal Affairs v. District Court of Appeal, 5th District, 434 So. 2d 310, 313 (Fla. 1983). This Court noted that a court “has the records of its own decisions and the judges have the opportunity to discuss such cases collegially.” Id.

Prior unpublished Florida

Supreme Court Orders approving uncontested Reports of Referee may assist this

26

Court in evaluating the consistency of discipline. A review of these recent Orders

and Reports of Referee also establishes that a public reprimand has been approved

for repeated misrepresentations that prejudice the outcome of the case, even when

the attorney has been previously disciplined.

Most recently, in November 2008, this Court approved a Report of Referee’s

recommendation of a public reprimand when an attorney made numerous “material

and misleading” misrepresentations in an Emergency Ex Parte Motion for

Temporary Custody and Other Relief on behalf of her client. See Florida Bar v.

Anna L. Brown, Case No. SC08-255. Ms. Brown’s misrepresentations, made in an

emergency custody proceeding, threatened critical parental rights pertaining to the

care and welfare of a child.

Just eleven months earlier, in January 2008, this Court had suspended this

same attorney for ninety days after she concealed an improper conflict of interest

by making misrepresentations to the court and to her client. Florida Bar v. Brown,

978 So. 2d 107 (Fla. 2008). The Court noted that the conflict of interest impacted

her ability to competently represent two criminal defendants, the passenger and the

driver of a vehicle who were both charged with constructive possession of a

firearm discovered in the vehicle in which they had been riding. Id. at 112-113.

The attorney filed a false notice of appearance, indicating that another attorney

represented the passenger while she represented the driver. Id. at 110. The

27

passenger, however, only met with and paid Ms. Brown, with no understanding

that her defense of him was compromised by the defense of the driver. Id. As a

result, Ms. Brown violated Rules 4-1.3 (competence), 4-1.4(a) (communication), 4-

8.4(c) (misrepresentation) and 4-1.7(a) (conflict of interest).

Ms. Brown not only compromised the integrity of the legal system, but also

detrimentally impacted the substantive rights of her clients who were charged with

felony crimes and thus, were subject to imprisonment, fines and the loss of civil

liberties. The Court noted that a “public reprimand might have been appropriate if

Brown had engaged in only one of the different types of misconduct in which she

engaged, but not when all of the rule violations are considered together.” Id. at

113. While the Brown Court acknowledged several cases in which an attorney was

publicly reprimanded for making an intentional misrepresentation, the Court

explained that there are no public reprimand cases involving “multiple acts of

misconduct of the kinds engaged in by Ms. Brown, especially where conflict of

interest was involved.” Id. at 113. Yet, the Court distinguished Ms. Brown’s

matter from rehabilitative suspension cases because Ms. Brown had no history of

prior discipline and determined that her misrepresentations were “arguably” less

“egregious.” Id. (distinguishing Florida Bar v. Cibula, 725 So. 2d 360, 362-363

(Fla. 1998)(attorney lied two times under oath to conceal his income in his alimony

28

proceedings and was found to have previously been held in contempt for engaging

in a “pattern of conduct to evade his alimony responsibilities.”)).

Even with the aggravation of a prior ninety-day suspension for misconduct

in Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008), in which she made

misrepresentations impacting the substantive rights of her clients, Ms. Brown

received a public reprimand for again making material misrepresentations to the

court, in a separate matter, that also threatened to impact the legal rights between a

parent and a child. Florida Bar v. Anna L. Brown, Case No. SC08-255. In

contrast to both of Ms. Brown’s cases, Ms. Holt’s rule violations pertain to the

same type of misconduct arising out of the same series of events. Moreover, the

Referee determined that Ms. Holt’s misrepresentations did not impact the outcome

of the case or any substantive legal issue. In addition, Ms. Holt’s case is mitigated

because, unlike Ms. Brown, Ms. Holt has no prior disciplinary history and has

extensive and substantial mitigation as found by the Referee. If Ms. Brown’s

material misrepresentations in a child custody matter, in conjunction with her prior

recent ninety-day suspension for multiple rule violations, including

misrepresentations, warranted a public reprimand, a rehabilitative suspension is not

warranted in the present case.

In October 2008, the Florida Supreme Court approved, and the Bar did not

contest, the referee’s public reprimand recommendation for violations of Rules 4-

29

8.4(c), 4-3.3(a) and 4-8.4(d), the same rule violations charged in the present case.

Florida Bar v. Julian Stanford Lifsey, SC07-747. In Lifsey, the attorney

misrepresented to a judge and opposing counsel that he had not filed a brief

because the record on appeal had not been prepared, falsely claiming the clerk’s

office was overwhelmed. In reality, the record had not been prepared because he

failed to pay the fee. When opposing counsel discovered Mr. Lifsey’s false

statements, he informed the trial court. Mr. Lifsey then filed a Motion to

Disqualify the judge, alleging that the opposing party and the judge were “acting in

concert” against him. Further, Mr. Lifsey misled the appellate court in a motion

for extension of time by intentionally not marking a box indicating whether or not

opposing counsel objected to the extension. Despite the numerous

misrepresentations, a public reprimand was imposed.

In January 2008, the Florida Supreme Court approved, and the Bar did not

contest, a referee’s recommendation for a public reprimand where the attorney

falsely advised his client to cancel a family law mediation due to concerns

regarding their accountant’s figures when really, he was too tired to attend due to a

long drive the night before. Florida Bar v. Steven Howard Goldfarb, SC07-746.

In addition, the attorney filed a motion to remove the judge and then told his client

not to appear for the motion or appear for the trial that was scheduled to begin

immediately thereafter, by misrepresenting that the hearing and trial had been

30

rescheduled. After being contacted by the judge regarding his and his attorney’s

failure to appear at the hearing or trial, Mr. Goldfarb’s client fired Mr. Goldfarb

and also complained about paying additional retainers although his fee contract

referenced a flat fee of $50,000.00. The attorney violated Rules 4-8.4(c), 4-1.5(a),

3-4.2, 3-4.3, 4-1.4(a) and 4-8.4(d). Even though the attorney had previously

received an admonishment, the referee and the Court determined that a public

reprimand, with the conditions of restitution of almost $9,000.00 to be paid back to

the client, and psychiatric counseling and monitoring, was the appropriate sanction.

Also in January 2008, a public reprimand was administered to an attorney

who, incidental to her representation of the wife in a post-dissolution of marriage

matter, authorized a private investigator to make intentional misrepresentations to

the husband. See Florida Bar v. Sara Blumberg, Case No. SC07-781. In

December 2007, a public reprimand was entered condemning Attorney Charles

Behm for “engaging in conduct in connection with the practice of law that was

prejudicial to the administration of justice while handling the probate estate” and

failing to “correct a misrepresentation to the court.” See Florida Bar v. Charles

Behm, Case No. SC06-294, Public Reprimand. Mr. Behm also violated Rule 4-

8.4(c) during the disciplinary hearing by falsely testifying to mitigating facts that

did not occur. See Florida Bar v. Charles Behm, Case No. SC06-294, Report of

Referee.

31

Many of the cases imposing non-rehabilitative suspensions for

misrepresentations, including the November 2008 Florida Bar v. Brown matter

discussed above, involve more egregious facts than those found by the Referee in

the present matter. In Florida Bar v. Forrester, 818 So. 2d 477 (Fla. 2002), the

attorney violated Rules 4-3.4(a) (unlawfully obstructing a party’s access to

evidence) and 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or

misrepresentation). The Court suspended Ms. Forrester for sixty days for

concealing an exhibit during a deposition and misleading opposing counsel

regarding its location. Id. at 480-481. Unlike here, such conduct was an attempt to

prejudice the opposing party and gain an advantage. Nevertheless, the Court

determined that a “sanction harsher than a public reprimand should be imposed

based on the fact that Forrester ha[d] three prior disciplinary actions,” including a

prior ninety-day suspension. Id. at 484.

In Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997), the Court rejected the

Bar’s argument for a ninety-one day suspension and imposed a thirty day

suspension when an attorney presented false evidence to the court and made

repeated misrepresentations to his own employees, opposing counsel, and to the

court. The underlying matter pertained to an infringement civil action involving

the name of a company in which the responding attorney held an interest. Id. at

725. At a hearing on a motion for contempt alleging that the attorney’s company

32

had failed to remove a sign in accordance with a granted injunction, Mr. Kravitz

falsely blamed the wrong individual for failing to remove the sign. Id. at 725-26.

The judge ordered the person identified by Mr. Kravitz to appear in court at a time

certain or be subject to arrest. Id. After the hearing, Mr. Kravitz wrote a letter to

his general manager, who was responsible for the sign, and attempted to extort

$4,000.00 from him by claiming that the judge had ordered him to pay or be

subject to arrest. Id. When the judge discovered Mr. Kravitz had identified the

wrong person, he held Mr. Kravitz in contempt of court and recused himself. Id.

Mr. Kravitz then misled the successor judge by submitting draft orders vacating the

contempt order and falsely claiming that opposing counsel had no objection. Id.

The judge relied on the misrepresentations and vacated the order before

discovering that opposing counsel had not even reviewed the proposed order. Id.

In addition, Mr. Kravitz wrote a letter to opposing counsel falsely claiming that he

held sufficient funds in his trust account to settle the attorney’s fee claim. Id. The

Kravitz Court relied on Standard for Imposing Lawyer Sanctions 6.12 and

determined that a thirty day rather than a ninety-day suspension was appropriate

for his pattern of lying given the absence of any disciplinary history. Id. at 728.

Another case imposing a thirty day suspension addresses criminal

misconduct and misrepresentations. Florida Bar v. Poplack, 599 So. 2d 116 (Fla.

1992). In Poplack, the attorney was discovered, in a disheveled condition, next to

33

a car that was being towed. Upon police inquiry, the attorney and another

individual lied and told the officers that he had borrowed the car and that it had

broken down. The officers first accepted this story but upon further questioning,

the attorney lied again and claimed he was playing a practical joke on a friend. In

reality, the attorney did not know the owner of the car and the Court found that

“only the police officer’s timely intervention prevented Poplack and the other

individual from successfully stealing a car.” Poplack at 119. The State Attorney’s

Office referred Mr. Poplack to the pretrial intervention for his attempted theft of

the motor vehicle. Despite the criminal conduct and Mr. Poplack’s lies to the

police officers during the commission of a felony, he was only suspended for thirty

days, followed by eighteen months probation with the condition of psychiatric

treatment. Id. at 117.

The Court imposed a thirty-day suspension when the attorney submitted a

brief to a district court misrepresenting the facts and then made extensive

arguments based on the misrepresentations. Florida Bar v. Anderson, 538 So. 2d

852 (Fla. 1989). When the opposing counsel filed a Motion for Sanctions

attempting to clarify the record with the District Court, the attorney denied the

inaccuracy and blamed opposing counsel for attempting to “obfuscate and deceive

the court.” Id. The Court found that both responding attorneys responsible for the

brief “not only misrepresented the facts to the district court but failed to correct the

34

misrepresentations even when they were brought to their attention.” Id. at 854.

Consequently, the attorney received a non-rehabilitative suspension for making a

material misrepresentation to gain an advantage, as well as for continuing to cover

up the deception by failing to take responsibility and instead further deceiving

opposing counsel and the court.

Similarly, the Court imposed a thirty-day suspension in Florida Bar v.

Oxner, 431 So. 2d 983 (Fla. 1983), when an attorney failed to prepare for a hearing

or subpoena an essential witness, made numerous misrepresentations and

continued his deception through the disciplinary proceedings. When the attorney

appeared for a final hearing unprepared, the attorney attempted to excuse his lack

of diligence by falsely claiming that he believed the hearing had been canceled and

had therefore released the essential witness from the insurance company. When

the judge further questioned the attorney about the availability of the witness, the

attorney also misrepresented that the witness worked at home and could not be

contacted. During a recess, the judge discovered that the witness had never been

subpoenaed or contacted about the trial and was easily reached at the insurance

company offices. Consequently, the judge did not continue the matter and the

hearing proceeded. Due to the attorney’s failure to adequately prepare and

subpoena witnesses, his client’s claims were defeated. The attorney’s conduct was

aggravated by his lack of remorse. Even at the subsequent disciplinary hearing, the

35

attorney had not filed an Answer and failed to acknowledge the seriousness of the

conduct. Despite the attorney’s refusal to take responsibility for material

misrepresentations that prejudiced his client, the Court did not impose a

rehabilitative suspension.

Cases imposing a ninety-day suspension involve aggravated

misrepresentations, including statements that violate criminal laws. In Florida Bar

v. Varner, 780 So. 2d 1, 2 (Fla. 2001), the attorney was suspended for ninety days

after he prepared a fictitious notice of dismissal with a fraudulent file number that

he forwarded to opposing counsel in a personal injury matter in order to cover his

negligent misrepresentation to the insurance company that a law suit had been

filed. In reliance on the fictitious notice prepared by Mr. Varner, the insurance

company tendered settlement funds. Id. The Court noted the multiple

misrepresentations committed by Mr. Varner because “the document contained a

false statement of fact in that the case number was nonexistent, and also implied

other falsehoods: that a lawsuit had been filed and that the lawsuit was now being

voluntarily dismissed.” Id. at 3. In addition, the Court found that these

misrepresentations were “material.” Specifically, the Court reasoned, “the false

statements in the document were material in that they were in furtherance of a

falsehood that State Farm relied upon in settling the matter.” Id. at 3. Mr.

Varner’s deception was aggravated by the “misuse of an official document” that

36

was “cloaked with the aura of authenticity” because it “diminishes the public trust

in the reliability of such documents.” Id. at 4.

In addition to Mr. Varner’s violation of Rule 3-4.3 (conduct contrary to

honesty and justice); 4-8.4(c) (conduct involving dishonesty, fraud, deceit or

misrepresentation); 4-4.1(a) (knowingly making false statement of material fact);

4-8.4(d) (conduct prejudicial to the administration of justice), Mr. Varner’s

conduct was felonious and violated Rule 4-8.4(b). Id. at 3. By submitting a

fictitious notice, Mr. Varner violated Florida Statutes, section 817.234(1)(a), a

third degree felony. Id. The Court considered the criminal violation in imposing a

ninety-day suspension rather than the thirty-day suspension recommended by the

referee. Id. at 4 (distinguishing thirty-day suspensions imposed for

misrepresentations in Florida Bar v. Kravitz, 694 So. 2d 725 (Fla. 1997), and

Florida Bar v. Rose, 607 So. 2d 394 (Fla. 1992), explaining, “[n]otably, however,

these cases did not involve the commission of a criminal act or the use of court

documents as a means to deceive others.”). Despite Mr. Varner’s serious and

criminal misconduct involving dishonesty and prejudicing the administration of

justice, the Court declined to impose the ninety-one-day suspension sought by The

Florida Bar. Id. at 5.

The Varner Court relied on Florida Bar v. Morse, 587 So. 2d 1120 (Fla.

1991), in finding that a ninety-day suspension was appropriate. In Morse, the

37

attorney hid his malpractice in failing to file suit prior to the statute of limitations

expiring from his client by providing a purported “settlement” check for $2,500.00

to his client (even though the client had previously rejected that settlement amount)

and falsely stating that this was the last offer from the insurance company. Id. at

1120-1121. Mr. Morse was suspended for ninety days. Id. at 1121. Neither Mr.

Varner nor Mr. Morse received a rehabilitative suspension even though their

misrepresentations affected their clients’ substantive rights and claims. See also

Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997) (ninety-day suspension when

attorney missed statute of limitations, misrepresented that case was progressing

and did not tell clients that statute of limitations had been missed).

If the conduct described in Varner, Morse and Lecznar did not warrant

rehabilitative suspensions, there is no basis to require rehabilitation in the present

case. First, the Referee found that Ms. Holt’s misrepresentation to the trial court

did not impact the substantive proceedings. In contrast to Mr. Varner’s fraudulent

document, which the opposing party relied upon in settling the case, or Mr.

Morse’s misrepresentation regarding the client’s settlement to potentially avoid a

legal malpractice claim, the Referee determined Ms. Holt’s statement, that she had

attempted to obtain deposition dates from her expert doctor, did not impact the

substantive legal issues in the case. Second, Ms. Holt’s conduct was not felonious.

The only similarity with Varner, Morse, and Lecznar, is that Ms. Holt panicked

38

and attempted to cover her initial misrepresentation. A comparison of Varner,

Morse, and Lecznar with this case establishes the ceiling of the range of sanctions

at a ninety-day suspension. However, the nature of Ms. Holt’s misrepresentations

and her mitigating circumstances distinguishes her conduct from the aggravating

circumstances in each of these three cases and warrants a shorter, non-

rehabilitative suspension.

Even without the substantial mitigating circumstances found by the Referee,

a rehabilitative suspension is excessive and outside the range of sanctions imposed

for similar misconduct. The Bar primarily relies on Florida Bar v. Rotstein, 835

So. 2d 241 (Fla. 2003), to argue the appropriateness of a rehabilitative suspension.

I.B. at 11-13. Although Rotstein involves misrepresentations and deception to the

Bar, its facts are distinguishable both in the nature of the misrepresentations to the

court, directly intended to prejudice his own client’s substantive rights to pursue a

malpractice claim against him, and his willingness to fabricate and submit

documents to protect his own interests. Moreover, in Rotstein, there was an

absence of any mitigating factors and four aggravating circumstances, including, a

“prior disciplinary offense.” Rotstein at 246.

Rotstein involved three separate series of misconduct. In the first series, the

attorney missed a statute of limitations which barred his client’s claims. Instead of

acknowledging that he committed malpractice, the attorney created a fraudulently

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backdated letter to his client advising her that he was withdrawing his

representation and advising her of the looming statute of limitations. Mr. Rotstein

sent three false documents to the grievance committee all misrepresenting that his

backdated letter was authentic. As a result, he violated Rules 4-1.4(a), 4-3.3, 4-

8.1(a), 4-8.4(c) and (d). In the second and third series of misconduct, Mr. Rotstein

was found to have taken an adverse interest against two separate clients, in

contravention of Rule 4-1.7, by filing motions in unrelated matters seeking to

enforce a settlement agreement without his clients’ knowledge or consent.

Not only did Mr. Rotstein’s actions irreparably prejudice his client’s claim,

he attempted to avoid any responsibility for his malpractice by creating a

fraudulently backdated letter that would have purportedly relieved him of

responsibility in pursuing his client’s claim. Mr. Rotstein specifically intended to

harm his client by eliminating his client’s legitimate claim for damages against

him. Moreover, Mr. Rotstein established a pattern of putting his own interests

before those of the client as demonstrated by his actions in the second and third

series of misconduct in which he took an adverse position to his clients to force

their hand in accepting settlement agreements. Ms. Holt’s conduct is not remotely

comparable. Ms. Holt’s statements did not impact her client’s rights or the rights

of the opposing party or opposing counsel. Although Ms. Holt has acknowledged

that she had panicked in her initial response to the Bar and attempted to cover her

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mistake, she ultimately acknowledged her misconduct to the grievance committee

and wrote a letter of apology to Judge Crenshaw.

B. A short-term rehabilitative suspension is supported by the Standards for Imposing Lawyer Sanctions and meets the purposes of lawyer discipline.

Ms. Holt’s failure to take immediate responsibility for her

misrepresentations to the trial judge is a gross aberration from her outstanding

commitment to the most vulnerable in our society and her excellent reputation for

professional ability. While community service does not act as a “credit” against

misconduct, consideration of Ms. Holt’s impressive decades-long service to abused

and neglected children brings into focus the isolated nature of her misconduct. The

absence of any disciplinary history and her positive reputation for ethics and ability

further distinguish these lapses of judgment from Ms. Holt’s otherwise

professional conduct. In contrast, the circumstances warranting rehabilitative

suspensions involve misrepresentations that prejudice parties, respondents with

prior disciplinary records or respondents that engage in multiple acts of misconduct

involving many different rule violations.

In evaluating a recommended sanction, the Standards for Imposing Lawyer

Sanctions consider the following factors:

3.0 GENERALLY In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:

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(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.

Fla. Stds. Imposing Law. Sancs. 3.0. In this case, neither the Standards nor the

existing case law support a rehabilitative suspension. First, in considering the duty

violated, the Court has previously examined whether the rule violations pertain to

“only one of the different types of misconduct” or whether they violate multiple

types of lawyer obligations. Brown at 113. In contrast to Brown, which

implicated many duties violated, the rule violations in this case all pertain to the

same type of misconduct arising from the same initial lapse in judgment.

Second, the Referee determined Ms. Holt’s mental state was affected by her

extreme emotional distress arising from her separation from Najuan when she

made misrepresentations to the court in April 2007. Ms. Holt’s close friend,

Attorney Sue Ellen Krick, testified that Ms. Holt was “losing it” at this time in her

life and Ms. Krick urged her to seek counseling, which Ms. Holt did for the first

time in her life. While her personal circumstances do not excuse her misconduct, it

is undoubtedly more difficult to make reasoned decisions in the midst of a personal

crisis.

Third, the Referee found that Ms. Holt caused no injury to her client and that

her misrepresentations pertained to procedural rather than substantive issues. Ms.

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Holt made misrepresentations to a judge that she had attempted to contact her

witness during a break, and immediately attempted to contact the witness that same

day after returning to her office. Over the next few weeks after discovering the

witness had passed away, she panicked and attempted to cover her deception in

two other hearings before the judge. Although Ms. Holt initially lied to the Bar to

cover her misrepresentation, she ultimately took full responsibility in her

deposition and corrected her representations to the grievance committee.

Fourth, Ms. Holt has no prior disciplinary history that would aggravate the

disciplinary sanction. Instead, Ms. Holt has an impressive and established history

of community service. Anyone who has encountered the behavioral problems of

one child might appreciate the awesome tasks that Ms. Holt has voluntarily

accepted over the past twenty years. She has demonstrated an extraordinary

capacity to care for our society’s most vulnerable victims under unimaginable

personal sacrifice. As a consequence of her efforts, the entire community benefits

from children who have a chance as functioning members of society. Indeed, one

of her former charges, Petty Officer Brown, who encountered Ms. Holt at a

domestic violence shelter when he was seven years old and living with an addicted

mother who had difficulty even caring for herself let alone three young children,

directly benefited from Ms. Holt’s consistent mentoring and love throughout his

childhood and teenage years. In evaluating the nature of this disciplinary

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complaint, it is important to consider the entire life of an attorney who has made

great sacrifices for the benefit of many children.

The Referee appropriately considered the purposes of discipline, as

enunciated in Florida Bar v. Poplack, 599 So. 2d 116, 118 (Fla. 1992) (citing

Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983)) in evaluating the recommended

discipline. (TT3. 18). These purposes are: (1) “the judgment must be fair to

society . . . by protecting the public from unethical conduct and at the same time

not denying the public the services of a qualified lawyer;” (2) the sanction “must

be fair to the respondent,” punishing for ethical breaches and yet encouraging

reformation and rehabilitation; and (3) the sanction “must be severe enough to

deter others who might be . . . tempted to become involved in like violations.” Id.

The Referee first explained that a non-rehabilitative suspension would be fair to

society because no one was harmed by Ms. Holt’s actions and that it “goes without

question, she is a skilled and qualified lawyer and has much to offer to the legal

community.” (TT3. 19-20). The Referee reasoned that a non-rehabilitative

suspension would sufficiently punish Ms. Holt and deter others from engaging in

similar misconduct. (TT3. 20).

While the Bar dismisses the Referee’s recommendation as a “mere” ninety-

day suspension, a three month period in which Ms. Holt is prohibited from

practicing law and earning a living is a severe sanction. (I.B. at 13). The Bar’s

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argument demonstrates a fundamental lack of appreciation of the real life impact of

the sanctions it urges this Court to impose. Ms. Holt and her witnesses testified

concerning the ramifications of a suspension on her family and the stress of

maintaining her household and supporting her children, including her foster

charges, on one income. Most critically, Ms. Holt worries about her family’s

continued ability to afford their home, which was purchased at the height of the

market with the aspiration of filling the bedrooms with foster children, a goal that

she and her husband have achieved. Ms. Holt has already experienced direct

financial consequences resulting from the loss of her primary source of referrals

from the Hillsborough County referral line due to her disciplinary matter.

Although personal economic losses might not necessarily mitigate the sanction,

personal consequences of a three-month suspension should be relevant factors in

evaluating the punishment and deterrent purposes of discipline.

After evaluating the entire range of sanctions for misrepresentations, Ms.

Holt’s conduct, especially when one considers the substantial mitigating

circumstances, are most comparable to cases imposing public reprimand or a short-

term suspension of thirty days or less. Accordingly, the Referee’s recommendation

of a non-rehabilitative suspension should be approved, but the duration of the

suspension reduced to reflect the totality of the mitigating circumstances.

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Issue Two

Is a misrepresentation that solely pertains to procedural matters and would not have misled a trier of fact on any substantive issue or given an advantage or disadvantage to any party a “false statement of material fact” pursuant to Rule Regulating The Florida Bar 4-3.3(a)?

While Ms. Holt admitted her misconduct violated Rule 4-8.4(d) (her conduct

prejudiced the administration of justice by requiring additional hearings and

delaying the litigation) and violated Rule 4-8.4(c) (her misrepresentations were

dishonest conduct), her misstatements were not “material” and therefore did not

violate Rule 4-3.3(a). Rule 4-3.3(a) prohibits an attorney from knowingly making

a “false statement of material fact or law to a tribunal.” R. Regulating Fla. Bar 4-

3.3(a) (emphasis added). In contrast to Model Rule of Professional conduct 3.3(a),

which prohibits, in pertinent part, a lawyer from making a “false statement of fact

or law to a tribunal,” Florida requires the additional element of materiality. To

assert that any false statement to a tribunal violates Rule 4-3.3(a) ignores the plain

language of the rule.2

Neither Rule 4-3.3 nor the commentary to the rule offers a definition or

provides guidance as to what constitutes a “material fact.” Moreover, the

Terminology section to the Preamble of Chapter 4 of the Rules of Professional

2 Rule 4-3.3(a)(1) was recently amended to delete the word “material.” In re: Amendments to R. Regulating Fla. Bar, 2009 WL 3858062 (Fla. 2009). However, as Ms. Holt’s misconduct occurred in 2007, the newly promulgated Rule 4-3.3(a), which does not take effect until February 1, 2010, is not applicable.

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Conduct, which sets forth definitions of general terms such as “substantial,”

“reasonable” and “knowingly” does not also include a definition of “material.”

This Court has previously considered the express language and plain meaning of

the Rules Regulating The Florida Bar when evaluating the scope and application of

the Rules. See Florida Bar v. Brake, 767 So. 2d 1163, 1168 (Fla. 2000)

(examining the phrase “engaged in the practice of law” included in the text of Rule

4-8.4(d) and carving out Rule 4-8.4(d) violations as an exception to the general

principle that discipline can be imposed for misconduct occurring outside the

practice of law). Therefore, it is appropriate to give the phrase “material fact” its

plain meaning.

When considering the plain language of a rule or statute, courts have

consulted Black’s Law Dictionary. For example, in State v. Bastos, 985 So. 2d 37,

41 (Fla. 3d DCA 2008), the Third District Court of Appeals relied in part on the

dictionary definition of a “material witness” which is a witness who can “testify

about matters having some logical connection with the consequential facts, esp. if

few other, if any, know about the matters.” Similarly, Black’s Law Dictionary

defines a “material fact” in the context of pleading and practice as follows:

one which is essential to the case, defense, application, etc., and without which it could not be supported. One which tends to establish any of issues raised. The ‘material facts’ of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.

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Black’s Law Dictionary 977 (6th ed 1990). Black’s Law Dictionary further defines

“material fact” in the context of “summary judgment” as follows:

In determining what constitutes a genuine issue as to any material fact for purposes of summary judgment, an issue is “material” if the facts alleged are such as to constitute a legal defense or are of such a nature as to affect the result of the action . . . A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have effect of establishing or refuting one of essential element of a cause of action or defense . . . and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties.

Id. A similar definition of materiality was enacted by the Florida Legislature for

use in prosecutions for perjury. Florida Statutes, section 837.011 (2004), defines

“material matter” as “any subject, regardless of its admissibility under the rules of

evidence, which could affect the outcome of the proceeding.”

Under any of these definitions of materiality, the primary focus is whether

the outcome was impacted or prejudiced by the false statement. The Referee found

that Ms. Holt’s misrepresentations concerning her attempt to contact her expert

doctor during recess to schedule a deposition caused no harm to the parties and did

not result in any advantage or disadvantage to either party. (TT3. 12). Instead, the

Referee determined that this was a procedural issue that would not have misled a

trier of fact of any substantive legal issue. (TT3. 12). Accordingly, the Referee

erred in determining that Ms. Holt violated Rule 4-3.3(a) because she did not

misrepresent a “material” fact to the tribunal.

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CONCLUSION

The Referee’s recommendation imposing a non-rehabilitative suspension

should be approved or reduced to a duration less than ninety days or to a public

reprimand. The Rule 4-3.3(a) guilty finding requiring a misstatement of “material”

fact should be rejected based on the Referee’s findings that there was no advantage

or disadvantage to the parties and no impact on the substantive legal issues in the

case.

Respectfully submitted, ____________________________________ SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 GWENDOLYN H. HINKLE, ESQUIRE Florida Bar No. 83062 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing Respondent’s

Answer Brief has been furnished by FedEx overnight delivery and electronic

submission via e-file@flcourts.org to the Honorable Thomas D. Hall, Clerk,

Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-

2300; and true and correct copies have been furnished by U.S. Mail to Troy

Matthew Lovell, Esquire, Bar Counsel, The Florida Bar, 4200 George J. Bean

Parkway, Suite 2580, Tampa, Florida 33607, and to Staff Counsel, The Florida

Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this 18th day of

December, 2009.

____________________________________ GWENDOLYN H. HINKLE, ESQUIRE

CERTIFICATION OF FONT SIZE AND STYLE

The undersigned counsel does hereby certify that this brief is submitted in

14 point proportionally spaced Times New Roman font.

____________________________________ GWENDOLYN H. HINKLE, ESQUIRE