Idea Transcript
IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Complainant,
Case No. SC03-1196
v. TFB No.: 2003-10, 107(13E) EUGENE PAUL BRINN, Respondent. ____________________________
RESPONDENT’S ANSWER BRIEF
SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 ANNE CAVANAUGH JONES, ESQUIRE Florida Bar No. 81922 Smith and Tozian, P.A. 109 North Brush Street, Suite 200 Tampa, Florida 33602 (813) 273-0063 Attorneys for Respondent
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv SYMBOLS AND REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v STATEMENT OF FACTS AND OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I.
THE REFEREE CORRECTLY DISMISSED THE COMPLAINT AGAINST THE RESPONDENT BECAUSE THE DESIGNATED REVIEWER DID NOT ADHERE TO RULE 3-7.5(b) IN THAT HE FAILED TO TIMELY MAKE A REPORT AND RECOMMENDATION TO THE DISCIPLINARY REVIEW COMMITTEE DISAGREEING WITH THE GRIEVANCE COMMITTEE’S UNANIMOUS FINDING OF NO PROBABLE CAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A.
APPLICABLE STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 8
B.
THE RECORD DOES NOT CONTAIN ANY EVIDENCE THAT THE DESIGNATED REVIEWER MET THE REQUIREMENTS OF RULE 3-7.5(b) . . . . . . . . . . . . . . . . . . . . . . 8
C.
ALTHOUGH RULE 3-7.4 PROVIDES THAT A FINDING OF NO PROBABLE CAUSE BY THE GRIEVANCE COMMITTEE DOES NOT PRECLUDE FURTHER PROCEEDINGS AGAINST THE RESPONDENT, ANY FURTHER PROCEEDINGS AFTER THE GRIEVANCE COMMITTEE ISSUES ii
A NOTICE OF NO PROBABLE CAUSE, MUST COMPLY WITH THE RULES REGULATING THE FLORIDA BAR, INCLUDING RULE 3-7.5(b) . . . . . . . . . . . 12 D.
ADHERENCE TO THE RULES REGULATING THE FLORIDA BAR IS NOT MERELY “A TECHNICALITY” THE BAR MAY AVOID WHEN COMPLIANCE WITH THE RULES IS INCONVENIENT . . . . . . . . . . . . . . . . . . . . . . . . 17
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATION OF FONT SIZE AND STYLE . . . . . . . . . . . . . . . . . . . . . . 21
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TABLE OF CITATIONS CASES Florida Bar v. Bosse, 689 So. 2d 268 (Fla. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 8 Florida Bar v. Catalano, 651 So. 2d 91 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . 17 Florida Bar v. Pahules, 233 So.2d 130 (Fla. 1970) . . . . . . . . . . . . . . . . . . . . . . . 19 Florida Bar v. Randolph, 238 So. 2d 635 (Fla. 1970) . . . . . . . . . . . . . . . . . . . . . 19 Florida Bar v. Rubin, 362 So. 2d 12 (Fla. 1978) . . . . . . . . . . . . . . . . . . . . . . . 18-19 Florida Bar v. Rubin, 709 So. 2d 1361 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . 18 Florida Bar v. Trazenfeld, 833 So. 2d 734 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . 15 In Re: Inglis, 471 So. 2d 38 (Fla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Levine v. Dade County School Board, 442 So. 2d 210 (Fla. 1983) . . . . . . . . . . . 13 Metropolitan Dade County v. Chase Federal Housing Corp., 737 So. 2d 494 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 State v. Egan, 287 So. 2d 1 (Fla. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Florida Bar Re: Amendments to the Rules Regulating The Florida Bar, 558 So. 2d 1008 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 RULES REGULATING THE FLORIDA BAR Rule 3-7.5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Rule 3-7.4(j)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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SYMBOLS AND REFERENCES The following abbreviations and symbols are used in this brief:
I.B.
=
Initial Brief
A.
=
Appendix
T.
=
Transcript of Hearing before Referee dated 09/02/03
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STATEMENT OF THE FACTS AND OF THE CASE This matter began with The Florida Bar’s (“The Bar”) correspondence to Respondent, Eugene P. Brinn, Esquire, (“Respondent”) on or about July 23, 2002, requesting Respondent’s response to a complaint filed by Paul B. Genet, Esquire, with The Bar. A49-52. Respondent, through his undersigned counsel, responded to the inquiry, pursuant to The Bar’s request, on or about August 23, 2002. A3848. On February 18, 2003, the grievance committee first considered the claims against Respondent and found no probable cause to support any disciplinary violation. A12-14. After the February 18, 2003, hearing, Thomas DeBerg, Esquire, discussed the case “informally with the designated reviewer who felt the case should be reconsidered.” A12. No notice or letter advising Respondent of the grievance committee’s initial no probable cause decision was ever sent to Respondent based on the grievance committee’s February 18, 2003, hearing. Id. On or about March 19, 2003, the grievance committee, at Bar counsel’s request, considered the matter a second time, at which time the committee voted unanimously on a finding of no probable cause. Id. A formal Notice of No Probable Cause and Letter of Advice to Respondent was signed by the grievance committee chair on March 28, 2003. A27-29. The Notice stated: 1
The designated reviewer has authority to seek review of the grievance committee’s decision within twenty-one (21) days of this date by referral to the disciplinary review committee. A decision by the designated reviewer not to seek review or expiration of the time in which to do so shall preclude further proceedings in this matter. A28. This Notice was sent directly to Respondent, the designated reviewer and to assistant staff Bar counsel under cover of correspondence from the grievance chairman dated March 31, 2003. A26, A29. There is no record evidence that the designated reviewer discussed this matter with any agent from The Florida Bar between the date of March 28, 2003, until April 25, 2003. The Bar contends that “[w]ithin 21 days following the mailing date of the Notice, Mr. Gilbert (the designated reviewer) verbally communicated to Bar counsel his decision to seek review of the finding of no probable cause.” I.B. at 9. In fact, The Bar contends this is an “undisputed fact.” Id. However, the record contains no evidence of this discussion or the date upon which it occurred. Bar counsel in this matter, on July 17, 2003, admitted that “[s]o far we have not found any record of the date on which he [designated reviewer] was notified that the chair had executed the NPC [No Probable Cause finding].” A12. Accordingly, Respondent disputes The Bar’s contention that this particular fact is “undisputed.” On or about April 25, 2003, assistant staff Bar counsel, apparently at the request of the designated reviewer, transmitted an agenda item by email to the 2
Tallahassee office of The Bar for the May 2003 Board of Governors’ Meeting. A12. On or about May, 30, 2003, at its regularly scheduled meeting, the Board of Governors found probable cause in this matter and issued its finding on or about June 6, 2003. Id.; see also, A23-25. The Bar filed its Complaint in Supreme Court Case No. SC03-1196 against Respondent in this matter on or about July 3, 2003. A15-22. Respondent filed his motion to dismiss the Complaint based on The Bar’s failure to adhere to its own procedural rules, specifically Rule 3-7.5(b) Rules Regulating the Florida Bar, on or about July 28, 2003. A6-10. The Bar responded to Respondent’s motion to dismiss by asserting that the designated reviewer’s verbal report to Bar counsel “within the 21-day period, and subsequent incorporation of that information into an agenda item submitted to the disciplinary review committee at its next regularly scheduled meeting” constituted compliance with “the intent” of Rule 3-7.5(b) of the Rules Regulating The Florida Bar. I.B. at 4; A2-5. The Referee held a hearing on Respondent’s motion to dismiss on September 2, 2003. At the hearing, The Bar asserted that there was no violation of Rule 3-7.5(b) in this matter because the designated reviewer made a report and recommendation within the twenty-one day time period to Bar counsel and that Bar 3
counsel then drafted an agenda item and sent the agenda item to the Board of Governors in Tallahassee who would present the matter to the disciplinary review committee at the next regularly scheduled meeting in late May, 2003. T at 8. The Bar further complained that “[t]here is no mechanism in place and has not been for 15 years . . . for getting [a report from the designated reviewer to review a grievance committee finding of no probable cause] to the disciplinary review committee at anytime outside of the Board of Governors’ regularly scheduled meeting.” Id. Accordingly, The Bar argued, the designated reviewer’s verbal report and recommendation to Bar staff counsel fulfills the intent of Rule 3-7.5(b). T. at 9. The Referee disagreed, based upon the express language of Rule 3-7.5(b). T. at 9-12. The Referee noted that the designated reviewer’s “report” was made, if at all, to Bar counsel and not to the disciplinary review committee. T. at 10. The Referee found that this procedure violated the express language of Rule 3-7.5(b). Specifically, the Referee stated: When I read it - - I pulled the rules and I thought, Gosh, there’s a problem here. I mean, because I did serve on a disciplinary committee and quite frankly I’m appalled that something like this is happening here. And if its happening, it needs to be corrected. But, I mean, it clearly says if the Designated Reviewer disagrees with the Grievance Committee Action, the Designated Reviewer shall make a report and recommendation to the Disciplinary Review Committee. T. at 10-11. After hearing additional argument from Respondent’s counsel, the 4
Referee made the following findings: All right. Based upon the argument as well as the Court’s review of the applicable Rule of Procedure, Rule 3-7.5, according to that, I’m granting the motion to dismiss. I do find that there was a failure to comply with the rules, especially when those rules were promulgated by The Florida Bar and ultimately approved by the Supreme Court. I think that I would have to strictly interpret them, and in applying my interpretation of those rules, it goes against the drafter or preparer. And in looking at the rule, there simply was a failure to comply here, which failure needs to be corrected. And so I will grant the motion to dismiss. T. at 12 (emphasis added). Accordingly, the Referee, by written order dated September 17, 2003, recommended that Respondent’s motion to dismiss The Bar’s Complaint be granted. A1. The Bar, arguing that there was no violation of Rule 3-7.5(b) and that even if there was that such violation was harmless error, petitioned this Court on or about October 20, 2003, for review of the Referee’s Order dismissing the Complaint. The Bar subsequently filed its Initial Brief in this matter on or about October 30, 2003. SUMMARY OF THE ARGUMENT The Referee properly dismissed The Bar’s Complaint against Respondent because the grievance committee’s finding of no probable cause became final on April 21, 2003, twenty-one days after the mailing date of the Notice of No Probable
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Cause and Letter of Advice to Respondent pursuant to Rule 3-7.5(b), Rules Regulating the Florida Bar. Thus, there was no procedurally-proper finding of probable cause to support the Complaint. There is no record evidence that the designated reviewer reported his disagreement of the grievance committee’s findings to anyone affiliated with The Florida Bar within the twenty-one day time period for which the Rule provides. Further, and as the Referee correctly found, Rule 3-7.5(b) required the designated reviewer to make his report and recommendation to the disciplinary review committee. Accordingly, verbal communication to assistant staff Bar counsel within the twenty-one day time period, assuming such communication occurred, does not meet the express requirements of Rule 3-7.5(b). The language of Rule 3-7.5(b) was proposed by a committee of The Florida Bar and promulgated by this Court. Accordingly, this Court need not resort to the canons of statutory construction to interpret the intent behind Rule 3-7.5(b). Further, the language of Rule 3-7.5(b) is clear, direct and contains express commands directing the designated reviewer to whom he should submit his report and recommendation in the event of his disagreement with grievance committee action and within what period of time. Accordingly, once a Notice of No Probable Cause is issued by a grievance committee the twenty-one day time period is 6
triggered. Although Rule 3-7.4(j)(3) provides another avenue for a second review of alleged attorney misconduct at the grievance committee stage, Rule 3-7.5(b) contains a more specific pronouncement as to procedures after a grievance committee, as here, sends formal Notice of No Probable Cause. Adherence to the Rules Regulating the Florida Bar is not a “technical” matter that the Bar may chose to disregard when adherence is inconvenient. The objectives of disciplinary proceedings include fairness to the respondent and to society. Both Respondent and society have a right to expect that attorneys prosecuting other members of the Bar will follow the Rules all attorneys are expected to follow. Further, society and the Respondent are entitled to rely on the Rules for finality in grievance proceedings. For these reasons this Court should accept the Referee’s recommendation that the Complaint be dismissed. ARGUMENT I.
THE REFEREE CORRECTLY DISMISSED THE COMPLAINT AGAINST THE RESPONDENT BECAUSE THE DESIGNATED REVIEWER DID NOT ADHERE TO RULE 3-7.5(b) IN THAT HE FAILED TO TIMELY MAKE A REPORT AND RECOMMENDATION TO THE DISCIPLINARY REVIEW COMMITTEE DISAGREEING WITH THE GRIEVANCE COMMITTEE’S UNANIMOUS FINDING OF NO PROBABLE CAUSE.
A.
APPLICABLE STANDARD OF REVIEW
A referee’s findings of fact come to this Court with a presumption of 7
correctness unless clearly erroneous or lacking in evidentiary support. Florida Bar v. Bosse, 689 So. 2d 268, 269 (Fla. 1997). If the referee’s findings are supported by competent, substantial evidence, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. Id. This Court’s scope of review is somewhat broader with regard to legal conclusions made by a referee because it is ultimately this Court’s responsibility to enter an appropriate judgment. In Re: Inglis, 471 So. 2d 38, 41 (Fla. 1985). B.
THE RECORD DOES NOT CONTAIN ANY EVIDENCE THAT THE DESIGNATED REVIEWER MET THE REQUIREMENTS OF RULE 3-7.5(b).
Rule 3-7.5(b), Rules Regulating The Florida Bar, provides, in pertinent part: A designated reviewer may review the actions of a grievance committee. In order to allow for review by the designated reviewer, notice of grievance committee action finding no probable cause, no probable cause with a letter of advice, minor misconduct, or probable cause shall be given to the designated reviewer. If the designated reviewer disagrees with the grievance committee action, the designated reviewer shall make a report and recommendation to the disciplinary review committee. The designated reviewer shall make the report and recommendation within 21 days following the mailing date of the notice of grievance committee action; otherwise the grievance committee action shall become final. Rule 3-7.5(b)(emphasis added). The Bar contends:
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[t]he facts are not disputed. On March 28, 2003, the chair of the grievance committee issued a “Notice of No Probable Cause and Letter of Advice” to [Bar Counsel], a copy of which was sent to Richard A. Gilbert, the designated reviewer. Within 21 days following the mailing date of the Notice, Mr. Gilbert verbally communicated to Bar counsel his decision to seek review of the finding of no probable cause. I.B. at 9. Respondent agrees that on March 28, 2003, the grievance committee chair issued its Notice of No Probable Cause and Letter of Advice after the grievance committee reconsidered the complaint against Respondent and again voted to find no probable cause. A26-29; T at 4. Respondent does dispute, however, and the record evidence does not support, The Bar’s contention that the designated reviewer contacted anyone within twenty-one days of March 28, 2003, to communicate his decision to seek review of the finding of no probable cause. The first record indication that the designated reviewer intended to seek review of the grievance committee’s second finding of no probable cause in this matter is dated April 25, 2003, the date upon which Bar counsel drafted and e-mailed an agenda item to a staff member of The Florida Bar for consideration by the Board at the next scheduled meeting regarding this matter. A14. Accordingly, there is absolutely no record evidence supporting The Bar’s contention that the designated reviewer contacted anyone connected with The Bar within twenty-one days following the mailing date of the Notice of No Probable Cause as contemplated by 9
Rule 3-7.5(b). Although Bar counsel asserted at the hearing that he was contacted within twenty-one days of the mailing date of the Notice of No Probable Cause, his assertion is contradicted by his contemporaneous written correspondence dated July 17, 2003, in which bar counsel indicated that he was unsure as to when the designated reviewer received notice of the grievance committee’s Notice of No Probable Cause. A12. Further, and more to the point, an assistant staff counsel is not the disciplinary review committee, the entity to which the designated reviewer is directed, by the Rule, to submit his report and recommendation communicating his disagreement with the grievance committee’s finding of no probable cause. Rule 37.5(b). As the Referee discovered during the hearing: Court:
No, but this [Rule] says if the Designated Reviewer disagrees with the Grievance Committee Action, the Designated Reviewer shall make a report and recommendation to the Disciplinary Review Committee.
Bar Counsel:
Yes, I understand that.
Court:
And did that happen here?
Bar Counsel:
Our position is - -
Court:
He made a report and recommendation to you; is that correct?
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Bar Counsel:
That’s correct.
Court:
You are not the designated - - the Disciplinary Review Committee, are you?
Bar Counsel:
The Disciplinary Review Committee isn’t even constituted within that time period.
Court:
Well, that’s what the Rule says though. The rule says —
Bar Counsel:
I understand that’s what the rule says.
Court:
. . . I mean, it clearly says if the Designated Reviewer disagrees with the Grievance Committee Action, the Designated Reviewer shall make a report and recommendation to the Disciplinary Review Committee.
Bar Counsel:
Yes, I understand that.
Court:
Did that happen here?
Bar Counsel:
They did not make a report to the Disciplinary Review Committee itself within that time period, no. ..
...
T. at 9-11(Emphasis added). The Bar’s position that assistant staff Bar counsel may act as an agent for a disciplinary review committee in order to satisfy the rule is argued without either legal or evidentiary support. In deciding the motion to dismiss, the Referee assumed for the sake of the argument that the verbal report was made by the designated reviewer to Bar counsel within the twenty-one day period, but found that
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even that action failed to comply with Rule 3-7.5(b). T at 12. Accordingly, The Bar’s argument before this Court that such a communication constituted compliance with Rule 3-7.5(b) is without merit. 1 C.
ALTHOUGH RULE 3-7.4 PROVIDES THAT A FINDING OF NO PROBABLE CAUSE BY THE GRIEVANCE COMMITTEE DOES NOT PRECLUDE FURTHER PROCEEDINGS AGAINST RESPONDENT, ANY FURTHER PROCEEDINGS AFTER THE GRIEVANCE COMMITTEE ISSUES A NOTICE OF NO PROBABLE CAUSE MUST COMPLY WITH THE RULES REGULATING THE FLORIDA BAR, INCLUDING RULE 3-7.5(b).
The Bar employs the principles of statutory construction to Rule 3-7.5(b) in order to ascertain the “legislative intent” of the provision and to argue that Rule 37.5(b) should be read in conjunction with Rule 3-7.4 R. Reg. Fla. Bar. I.B. at 1115. The essential purpose of statutory construction is to determine legislative intent. Metropolitan Dade County v. Chase Federal Housing Corporation, 737 So. 2d 494, 500 (Fla. 1999). However, where, as here, the language of the statute [or rule] contains an express command, there is no need to resort to canons of statutory construction. Id. at 500. Rules of statutory construction should be used only in case of doubt and should never be used to create doubt, only to remove it.
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The Bar’s contention that the Rule cannot be followed because the disciplinary review committee is not always convened is likewise without merit. As was pointed out by Respondent’s counsel at the hearing on the motion to dismiss, the designated reviewer could very easily meet the requirements of Rule 3-7.5(b) merely by corresponding with the committee members or the chair of the committee and sending his “report and recommendation” through the mail. T at 11. 12
State v. Egan, 287 So. 2d 1 (Fla. 1973). The language of Rule 3-7.5(b) is direct, clear and contains express commands as to what the designated reviewer shall do if he disagrees with the grievance committee action and within what amount of time he shall do it: If the designated reviewer disagrees with the grievance committee action, the designated reviewer shall make a report and recommendation to the disciplinary review committee. The designated reviewer shall make the report and recommendation within 21 days following the mailing date of the notice of grievance committee action; otherwise the grievance committee action shall become final. Rule 3-7.5(b)(emphasis added). Because the Rule is clear on its face and contains express commands, it is unnecessary to resort to the canons of statutory construction to uphold the Referee’s recommendation to dismiss the complaint. The grievance committee action became final before the designated reviewer, or anyone in his stead, gave a report and recommendation to the disciplinary review committee disagreeing with the grievance committee’s second finding of no probable cause. T at 11-12. Because a finding of probable cause is a condition precedent to filing a formal complaint for disciplinary proceedings, the Referee properly recommended dismissal of this matter with prejudice. See Levine v. Dade County School Board, 442 So. 2d 210, 211-13 (Fla. 1983)(concluding that failure to satisfy statutory notice requirement within period of statute of limitations for
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claim constituted a failure to perform a condition precedent to filing suit and required dismissal of the complaint with prejudice);T at 12. Further, unlike statutes which are drafted and passed by the legislature, the Rules Regulating the Florida Bar are promulgated by this Court. This Court need not resort to the canons of statutory construction to determine its own intent in amending Rule 3-7.5(b) in 1990. A look at the language of former Rule 3-7.5(b) and a comparison with the current language is instructive. The former provision stated that “[a] designated reviewer at any time may review the actions of a grievance committee[.]” The Florida Bar Re Amendments to the Rules Regulating the Florida Bar, 558 So. 2d 1008, 1020 (Fla. 1990)(emphasis added). In 1990, the phrase “at any time” was deleted and other revisions to the rule were made. The 1990 promulgation history of the revision to Rule 3-7.5(b) states: “[t]he amendment to paragraph (b) of rule 3-7.5 places a time limit on the ability of the designated reviewer to review actions of the grievance committee.” Id. at 1011. The current version of Rule 3-7.5(b) uses the term “shall” twice within the provision to direct the designated reviewer to whom he should file his report and recommendation if he disagrees with grievance committee action and within what period of time. The word “shall” is a term connoting that the directed action is mandatory. See Florida Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002)(“The 14
word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’”). The designated reviewer’s report and recommendation disagreeing with grievance committee action must be made, if at all, within twenty-one days of the date of mailing the notice of grievance committee action and must be made to the disciplinary review committee, not to Bar counsel. The Bar argues that the designated reviewer’s untimeliness in this matter is harmless because, pursuant to Rule 3-7.4(j)(3), “A finding of no probable cause by a grievance committee shall not preclude the reopening of the case and further proceedings therein.” The Bar’s argument is without merit. Although Rule 37.4(j)(3) does, in fact, allow for multiple examinations of the propriety of an attorney’s conduct, this rule does not negate Rule 3-7.5(b). Rule 3-7.4(j)(3) broadly provides that a grievance committee’s finding of no probable cause on one occasion does not preclude a second review of the matter. Rule 3-7.4(j)(3) is merely a separate, alternative route the Bar may use to seek review of an attorney’s conduct. Once the grievance committee issues a formal Notice of No Probable Cause, however, Rule 3-7.5(b) applies rather than Rule 3-7.4(j)(3). Rule 3-7.5(b) provides more specific requirements as to how and when a subsequent review of an attorney’s conduct shall be made despite a grievance committee’s formal notice 15
of finding of no probable cause. Further, the Bar’s contention that the designated reviewer’s failure to report his disagreement with the grievance committee’s action within the specified time period to the disciplinary review committee is harmless because, pursuant to Rule 3-7.4(j)(3), the grievance process may be instituted again is somewhat disingenuous in this case. This is so because The Bar did employ Rule 3-7.4(j)(3) to reopen the case after the grievance committee’s first finding of no probable cause. A12. Pursuant to Rule 3-7.4(j)(3), the Bar requested that the grievance committee reconsider the matter and the grievance committee steadfastly made a second finding of no probable cause. Clearly this Court intended to set a time limit within which the designated reviewer could question the grievance committee’s action so that there could be finality to grievance committee proceedings within a reasonable period of time. The intent of Rule 3-7.5(b) is clear and The Bar and the designated reviewer must be held to the Rule. This matter has been pending since July 23, 2002, when Respondent was first given notice of the initial complaint and asked to respond. Three-quarters of a year later, after the grievance committee had twice found no probable cause for further proceedings, the designated reviewer failed to timely make his report and 16
recommendation to the disciplinary communicating disagreement with the grievance committee’s action. Rule 3-7.5(b) expressly provides a remedy for the untimeliness of the designated reviewer; the grievance committee action becomes final twenty-one days after the mailing date of the notice of grievance committee action, in this case, on April 21, 2003. Accordingly, this Court should accept the Referee’s recommendation that the complaint in this matter be dismissed with prejudice. D.
ADHERENCE TO THE RULES REGULATING THE FLORIDA BAR IS NOT MERELY “A TECHNICALITY” THE BAR MAY AVOID WHEN COMPLIANCE WITH THE RULES IS INCONVENIENT.
The Bar argues that, even if the designated reviewer failed to adhere to the dictates of Rule 3-7.5(b), this Court should not allow dismissal of the complaint based upon a “technical” error. I.B. at 16-19. The Rules Regulating the Florida Bar govern all attorneys, including attorneys prosecuting other attorneys for alleged disciplinary violations. This Court has not failed to recognize the need to hold all attorneys, including attorneys working for or on behalf of The Bar, to the express language of the Rules Regulating the Florida Bar. See Florida Bar v. Catalano, 651 So. 2d 91, 92 (Fla. 1995)(Agreeing with referee’s report and recommendation that disciplinary complaint be dismissed because grievance
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committee did not have proper quorum to vote on action pursuant to then Rule 37.4(g)). Committees of the Bar propose the substance of the Rules Regulating the Florida Bar and this Court promulgates those Rules. Violations of the Rules by those attorneys working on behalf of The Bar seeking to prosecute other attorneys for Rule violations are anything but “technicalities” to be ignored. This Court, in the context of discussing another Rule Regulating the Florida Bar dealing with grievance committee proceedings recently stated: “[a]ccordingly, in the future, we encourage the Bar to be more careful to cite this rule in its correspondence and to more explicitly and completely fulfill the specific requirements of the rule.” Florida Bar v. Rubin, 709 So. 2d 1361, 1363 (Fla. 1998). Additionally, in the context of requiring The Bar to adhere to the Rules Regulating the Florida Bar, this Court has observed: The Bar consistently demanded that attorneys turn “square corners” in the conduct of their affairs. An accused attorney has a right to demand no less of the Bar when it musters its resources to prosecute for attorney misconduct. We have previously indicated that we too will demand responsible prosecution of errant attorneys, and that we will hold the Bar accountable for any failure to do so. ‘We have pointedly held that the responsibility for exercising diligence in the prosecution rests with the Bar. When it fails in this regard the penalizing incidents which the accused lawyer suffers from unjust delays, might well supplant more formal judgments as a form of discipline. This is so even though the record shows that the conduct of the lawyer merits discipline.’
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Florida Bar v. Rubin, 362 So. 2d 12, 16 (Fla. 1978)(emphasis added); see also, Florida Bar v. Randolph, 238 So. 2d 635, 639 (Fla. 1970)(same). The Referee’s dismissal of the complaint in this matter is not a punishment directed to the Bar for failure to follow the Rules. Dismissal is merely the logical consequence of the Bar’s failure to follow Rule 3-7.5(b). Pursuant to Rule 37.5(b), the grievance committee’s unanimous finding of no probable cause and letter of advice became final on April 23, 2003, twenty-one days after the mailing date of the Notice of No Probable Cause, allowing five (5) additional days for mailing. Respondent received a copy of the Notice of No Probable Cause and Letter of Advice and relied upon the stated twenty-one day time limit for the designated reviewer to seek review of the grievance committee’s action. When the Respondent received notice, on or about June 6, 2003, that the Board of Governors had found probable cause to proceed with disciplinary proceedings against him, Respondent was put in the position of being prosecuted a second time because he believed, pursuant to the Notice of No Probable Cause, that the grievance committee action had already become final. One of the objectives of attorney discipline is fairness to the respondent. Florida Bar v. Pahules, 233 So. 2d 130, 132 (Fla. 1970). Fairness to the Respondent should allow him to rely upon the express dictates of Rule 3-7.5(b) for some finality to the review of his alleged 19
misconduct. A second objective of attorney discipline is fairness to society. Id. Society, as a whole, demands adherence to time limits and the ability to rely on the finality of proceedings pursuant to the express provisions of Rules all attorneys are expected to follow. Accordingly, despite the Bar’s contention otherwise (I.B. at 18-19), the Referee’s recommendation that the complaint against Respondent be dismissed serves the purposes of attorney disciplinary proceedings. CONCLUSION For all the foregoing reasons, Eugene Paul Brinn, Esquire respectfully requests that this Court accept the Referee’s recommendation that the disciplinary complaint against him be dismissed with prejudice. Respectfully submitted,
______________________________________ _ SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 ANNE CAVANAUGH JONES, ESQUIRE Florida Bar No. 81922 SMITH AND TOZIAN, 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 UPS overnight delivery to the Honorable Thomas D. Hall, Clerk, Supreme Court of Florida, 500 S. Duval Street, Tallahassee, Florida 32399-1927 and true and correct copies have been furnished by U.S. Mail to Thomas E. DeBerg, Esquire, Assistant Staff Counsel, The Florida Bar, Suite C-49, 5521 W. Spruce Street, Tampa, Florida 33607 and John Anthony Boggs, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300 this 24th day of November, 2003.
______________________________________ SCOTT K. __ TOZIAN, 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.
______________________________________ __ SCOTT K. TOZIAN, ESQUIRE
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