Thursday, October 5, 2017

Second Solicitation Draws One-Year Florida Suspension

The Florida Supreme Court has rejected a referee's proposed 60-day suspension in favor of a one year term.

In July 2015, The Florida Bar filed a complaint against Dopazo, alleging that he engaged in misconduct in violation of the Bar Rules. The Bar made two distinct claims in its Complaint. First, the Bar alleged Dopazo participated in a patient-client recruiting scheme orchestrated by a nonlawyer, in which Dopazo obtained clients and paid the nonlawyer for those client referrals. Second, the Bar alleged Dopazo either directly himself or through an employee or agent knowingly solicited Penny Jones, the mother of a brain-injured child at the hospital, while the child was in a coma. A referee was appointed to consider the matter. Following a hearing, the referee submitted his report, in which he made the following findings and recommendation.

On December 22, 2011, after a federal trial on the matter concluded, the Federal Bureau of Investigation sent the Bar materials concerning the investigation and subsequent indictment of two nonlawyers for their involvement in an illegal patient-client recruiting scheme with medical clinics involving local lawyers. After reviewing those materials, the Bar suspected Dopazo to have been involved in the scheme and to have paid for client referrals. At the final hearing, the Bar presented evidence that Dopazo provided thirty-one payments to Miami-Dade Services, Inc., suggesting Dopazo made these payments as part of the scheme to receive potential client information. Dopazo acknowledged the payments but explained they were made on letters of protection for healthcare services furnished to his clients at the medical clinics. The Bar admitted there was no “smoking gun” to directly support its allegation that Dopazo was involved in the patient-client recruiting scheme.

The referee found insufficient evidence of the above charges but

In March 2007, days after her son suffered traumatic brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center by Dopazo, who successfully solicited her to become a client of his for a fee. There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf. The referee found that Dopazo’s appearance at the hospital was completely unexpected, and while she did apparently retain his services at that time, Jones’ limited education and fragile emotional condition at the time likely rendered her unable to make a rational decision whether to retain counsel or reject Dopazo’s efforts to sign her up as a client. In defense of his actions, Dopazo claimed that his office called him and told him to go see Jones in the hospital intensive care unit; however, the referee found that this explanation was insufficient.

The court rejected the attorney 's attacks on the evidence but weighed the Bar's appeal for a two-year suspension

Here, case law supports the Bar’s assertion that the referee’s recommended sanction of a sixty-day suspension is too lenient. In Weinstein, this Court disbarred a lawyer who solicited a stranger who was hospitalized with brain damage after a motorcycle accident when the lawyer also committed a series of lies to execute the solicitation...

In cases where the lawyer has been previously disciplined for engaging in conduct of a similar nature, this Court typically takes an incremental approach in imposing discipline, increasing the severity of discipline in each instance. See Fla. Bar v. Norkin, 132 So. 3d 77, 92 (Fla. 2013); Fla. Bar v. Morgan, 938 So. 2d 496, 499-500 (Fla. 2006). Dopazo previously received a public reprimand for solicitation in 2004, and he has committed the same rule violation a second time by soliciting Jones in this case. Therefore, a more severe sanction is warranted because Dopazo committed the same conduct for which he was previously disciplined. Further, “the Court has moved toward imposing stronger sanctions for unethical and unprofessional conduct” to protect the legal profession from dishonor and disgrace. Fla. Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015). Unethical violations of the solicitation rule, such as the ones committed by Dopazo in this case, have the potential to harm people who are already in a vulnerable condition and bring dishonor and disgrace on the entire legal profession. This Court will not tolerate these improper solicitations and will “impose severe sanctions on those who commit violations of them.” Barrett, 897 So. 2d at 1277. Therefore, we conclude that a one-year suspension from the practice of law is warranted in this case.

(Mike Frisch)

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