Thursday, June 12, 2008
In a lengthy opinion, the Florida Supreme Court today rejected a referee's public censure with probation and suspended the lawyer for three years. The misconduct involved a series of false representations to a tribunal in connection with an adoption. The lawyer was president of the Foundation for Children, Inc. (which operated an adoption agency) and had presented a significant amount of character evidence. The misconduct was deemed quite serious: the "trial court relied on the accuracy of the attorney's ex parte factual, substantive, and material representations in rendering its decision as to the familial structure of a vulnerable, defenseless child." The lawyer had taken a child from his maternal grandparents and arranged the adoption through false representation to a tribunal. The grandparents sought to assert rights to the child, but were not financially able to secure legal help. The adopting parents had their rights challenged and had sued the lawyer for malpractice.
The court noted that the case presented a "rare circumstance where this Court's responsibility to the public compels us to depart from both the referee's recommended disposition and the Bar's requested discipline." The Bar had sought a one-year suspension.
A dissent from Chief Justice Lewis makes an impassioned and persuasive argument for disbarment: "It is an affront to the disciplinary system and an affront to the public that these deliberate and blatant misdeeds of the theft and sale of a child have not resulted in disbarment." The lawyer had wreaked harm on the grandparents, the birth mother, the biological father, her own clients and the child for "a fist full of dirty dollars." The dissent then strikes an unusual note:"I have failed the people of Florida due to my inability to help my good friends and colleagues fully understand the enormity of this wrong."
Although the dissent is lengthy, it is worth a read if you are interested in a fundamental regulatory issue. Jurisdictions will disbar for misappropriation but not necessarily for serious forms of dishonesty. The point of the dissent is that the proven misconduct (described in detail) should be regarded every bit as seriously as theft of client funds and should result in the same sanction.
Also of interest is the differing analysis of the purported mitigating factors by the majority and dissenting opinions. (Mike Frisch)