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IN THE SUPREME COURT OF FLORIDA FLORIDA BOARD OF BAR

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IN THE SUPREME COURT OF FLORIDA FLORIDA BOARD OF BAR Powered By Docstoc
					                    IN THE SUPREME COURT OF FLORIDA

FLORIDA BOARD OF BAR                                              CASE NO. SC11-718
EXAMINERS IN RE:                                                  BOARD FILE NO. 20868
SCOTT ELLIOT ITKIN
                                       /


              BRIEF IN SUPPORT OF PETITION FOR REVIEW




                                                HARRIS K. SOLOMON
                                                Florida Bar No. 259411
                                                harris.solomon@brinkleymorgan.com
                                                BRINKLEY MORGAN
                                                Attorney for Applicant, Scott E. Itkin
                                                200 East Las Olas Boulevard, 19th Floor
                                                Fort Lauderdale, FL 33301
                                                Telephone: (954) 522-2200
                                                Facsimile: (954) 522-9123




                         BRINKLEY MORGAN | ATTORNEYS AT LAW
  Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
                                        TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF CASES AND CITATIONS ................................................................. iii

ABBREVIATIONS ...................................................................................................1

STATEMENT OF THE CASE AND OF THE FACTS ....................................... 1-2

SUMMARY OF THE ARGUMENT .................................................................... 2-6

ARGUMENT .............................................................................................................6

         I.       Specification one and response/Proof of rehabilitation .................. 6-18

         II.      Specification two and response. ................................................... 18-19

         III.     Specification three and response .................................................. 19-21

         IV.      Specification four and response ................................................... 21-24

         V.       Specification five and response .................................................... 24-25

CONCLUSION ................................................................................................. 25-26

CERTIFICATE OF SERVICE ...............................................................................27

CERTIFICATE OF COMPLIANCE ......................................................................27




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                          TABLE OF CASES AND CITATIONS

CASES:
Fla. Bd. of Bar Exam’rs re Barnett 959 So.2d 234 (Fla. 2007) ...............................6

Fla. Bd. of Bar Exam’rs re L.H.H. 660 So.2d 1046 (Fla. 1995) ...............................7




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                                         ABREVIATIONS

      1.       Scott Elliott Itkin, Applicant, will be referred to herein as “Applicant.”

      2.       The Florida Board of Bar Examiners will be referred as “FBBE.”

      3.       The      Public      Findings        of     Fact,     Conclusions         of     Law,         and

Recommendation will be referred to as “FBBE Report.”

      4.       A copy of the FBBE Report accompanies this document as Appendix

A. Citations to the record will follow the pattern of the FBBE Report, namely:

      a.       Formal Hearing Record - Board Exhibit will be referred to as “FHR-

BE followed by the Exhibit Number;

      b.       Formal Hearing Record - Office of General Counsel Exhibit will be

referred to as “FHR-OGCE” followed by the Exhibit Number;

      c.       Formal Hearing Record - Applicant Exhibit will be referred to as

“FHR-AE” followed by the Exhibit Number; and

      d.       Formal Hearing Transcript will be referred to as “T” followed by the

page number.

                      STATEMENT OF THE CASE AND FACTS

      Applicant had resigned from The Florida Bar in May 1996 in lieu of

discipline, with leave to reapply in five years. He has now been out of the Bar for

15 years. Upon requesting permission to reapply, Applicant was informed by

FBBE that he was ineligible to reapply to The Florida Bar because he was


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ineligible to reapply to the New Jersey Bar.

      Applicant then petitioned this Court (Case No. SC07-1352) for the right to

reapply to The Florida Bar. This Court, in a unanimous opinion in December

2007, ruled that Applicant could reapply to The Florida Bar because Florida is

Applicant’s home state and the New Jersey disbarment was based solely on the

Florida resignation. Applicant took and passed The Florida Bar Exam in February

2008 and filed his formal application for readmission.

      Applicant appeared for an investigative hearing before FBBE on November

13, 2009 and thereafter FBBE served five Specifications to be considered at a

Formal Hearing. Applicant appeared for the Formal Hearing before FBBE on

November 19, 2010 and as a result of said Formal Hearing, FBBE determined in

its Report issued on February 8, 2011, that Specifications 1 - 4 (discussed in more

detail infra) were proven, Specification 5 had been disproven, and that Applicant

had not proven rehabilitation of his character by clear and convincing evidence.

Thereafter, a timely Request for Review was filed with the Court.

                            SUMMARY OF THE ARGUMENT

      Applicant has lived an exemplary life since the time of his resignation.

While his egregious conduct lead to his resignation, dissolution of his marriage,

and personal bankruptcy, he thereafter was a model father, changed his spending

habits to be in line with his income, became a nicer more humble person and has


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tried to repair the damage he caused the world through charitable endeavors. It has

now been fifteen years since Applicant breached his ethical and moral

responsibilities. His son has grown from a toddler to a young adult and Applicant

has gone from a self-centered young lawyer to a wiser more senior member of our

society seeking the honor of practicing law again with an understanding of the

things that are really important in life. The testimony and other evidence are clear

and convincing that Applicant is rehabilitated.

      Specification 1 claims that Applicant should be denied readmission because

he previously resigned from The Florida Bar in lieu of discipline for

misappropriating trust funds. Applicant has admitted the factual allegations of

Specification 1, all of which conduct took place in 1996 and prior, but has alleged

the affirmative defense of rehabilitation of character.

      Specification 2 claims that Applicant should be denied readmission because

he was convicted of a felony in 1996. The basis for the felony, to which he pled

nolo contendere, was the same conduct for which he resigned. Applicant has

admitted the factual allegations of Specification 2, but has alleged the affirmative

defense of rehabilitation.

      Specification 3 claims that Applicant should be denied readmission because

he was financially irresponsible leading up to his filing for Chapter 7 bankruptcy in

2002. Applicant has admitted in part and denied in part this allegation, admitting


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that he was fiscally irresponsible leading up to his filing for Chapter 7 bankruptcy

and stated that the vast majority of the debts that were discharged in his bankruptcy

arose during the 1995/1996 and prior time frame, but that since his filing for

bankruptcy in 2002, he has been very fiscally responsible and alleged the

affirmative defense of rehabilitation.

      Specification 4 relates to a $5,000 unsecured line of credit loan application

from Eastern Financial Credit Union executed in March 2007. On the application

none of the questions were answered on the second page (including the question

regarding prior bankruptcies) and the first page stated that Applicant’s income was

$1.00 per month. The FBBE Report alleged that the responses on this application

were incomplete, misleading, lacking in candor, and irresponsible.                                Applicant

acknowledges that he did not provide responses to all of the questions on the

application but denies this Specification based upon the factual situation that he

was solicited for the $5,000 line of credit by the credit union, that he was told he

was approved for the loan based on his credit rating prior to ever signing the

application, and that he simply signed the forms that were presented to him at his

appointment. Applicant admits that he should have been more careful in reviewing

the document prior to signing it, but that he did not intend to be untruthful and

under this set of circumstances, the failure to answer the questions should not be a

disqualifying event.


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      Specification 5 related to testimony Applicant gave at the investigative

hearing, which FBBE alleged was false, misleading, or lacking in candor.

However, since hearing his explanation at the Formal Hearing, the FBBE

determined the facts did not support the Specification.

      Lastly, Applicant submits that he has shown rehabilitation of his character

by his significant charitable endeavors over the past 13 plus years for multiple

organizations, by the statements made by various persons in letters to the FBBE,

and by the testimony of three witnesses at the Formal Hearing (all of which were

commented upon favorably in the FBBE Report).                              While the FBBE Report

comments favorably upon much of the rehabilitation evidence presented by

Applicant, FBBE determined that it did not meet the clear and convincing

standard.

      “In the bar admission process the burden is upon the applicant to
      demonstrate his or her good moral character.” Fla. Bd. of Bar
      Exam’rs re H.H.S., 373 So.2d 890, 891-92 (Fla. 1979). “Disbarment
      alone is disqualifying for admission to the Bar unless applicant can
      show clear and convincing evidence of rehabilitation.” Fla. Bd. of
      Bar Exam’rs re Papy, 901 So.2d 870, 872 (Fla. 2005). “Disciplinary
      resignation is tantamount to disbarment.” Fla. Bar v. Hale, 762 So.2d
      515 (Fla. 2000). In determining whether the petitioner has shown
      sufficient rehabilitation, the nature and the seriousness of the offense
      are to be weighed against the evidence of rehabilitation. Fla. Bd. of
      Bar Exam’rs re M.L.B. 766 So.2d 994, 996 (Fla. 2000); Fla. Bd. of
      Bar Exam’rs re D.M.J., 586 So.2d 1049, 1050 (Fla. 1991). The “more
      serious the misconduct, the greater the showing of rehabilitation that
      will be required.” Fla. Bd. of Bar Exam’rs re J.J.T, 761 So.2d 1094,
      1096 (Fla. 2000).


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Fla. Bd. of Bar Exam’rs re Barnett 959 So.2d 234 (Fla. 2007).                                    Applicant,

however, believes a fair review of the evidence shows that it meets the clear and

convincing standard.

                       SPECIFICATION ONE AND RESPONSE

      I. Specification One states as follows:

      “You were admitted to The Florida Bar in October 1983. In early
      1996, a complaint was filed with The Florida Bar by Thomas Anth,
      alleging that you had misused money you received on Mr. Anth’s
      behalf. You were suspended from The Florida Bar on an emergency
      basis by the Supreme Court of Florida in an Order dated February 7,
      1996.

      On January 31, 1996, you filed a Petition for Disciplinary Resignation
      because of the bar’s ongoing investigation into your trust accounts.
      By Order dated May 10, 1996, the Supreme Court of Florida granted
      your petition for disciplinary resignation. In this order, the Court
      imposed the following conditions: you could not file for readmission
      for five years; and, a judgment for costs totaling $1,478.07 was
      entered against you.

      In August 1987, you were admitted to the New Jersey Bar. In an
      Order dated July 15, 2004, the Supreme Court of New Jersey
      permanently disbarred you in New Jersey. This action by the
      Supreme Court of New Jersey was based solely upon your activities in
      Florida that led to your disciplinary resignation in Florida.”

      Applicant, in his answer to the Specifications (FHR-BE Exhibit 3 at

Specification 1) admitted the allegations in Specification 1, but Applicant submits

that he has carried the admittedly heavy burden of proof of rehabilitation.

                                      Proof of Rehabilitation

      Applicant resigned in lieu of disciplinary proceedings in 1996. Under current

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rules and decisions of this Court, a resignation in lieu of discipline is tantamount to

disbarment. The Florida Bar v. Hale, 762 So.2d 515 (Fla. 2000). Applicant

acknowledges that based upon having admitted to the allegations set forth in

Specifications 1 and 2 (and to a lesser extent the partial admissions to

Specifications 3 and 4) he bears a heavy burden to show rehabilitation by clear and

convincing evidence. That burden is even stronger when, as is present in this case,

Applicant admits to having stolen funds from his trust accounts. The Florida

Board of Bar Examiners re L.H.H. 660 So.2d 1046 (Fla. 1995). However, as set

forth below, Applicant has more than met that burden.

      Pursuant to Rule 3-13 Elements of Rehabilitation, the requirements are as

follows:

               Any applicant or registrant who affirmatively asserts
               rehabilitation from prior conduct that adversely reflects
               upon the person’s character and fitness for admission to
               the bar must produce clear and convincing evidence of
               rehabilitation including, but not limited to, the following
               elements:

                        (a) strict compliance with the specific condition of
                        any disciplinary, judicial, administrative, or other
                        order, where applicable;

                        (b) unimpeachable character and moral standing in
                        the community;

                        (c) good reputation for professional ability, where
                        applicable;

                        (d) lack of malice and ill feeling towards those

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                          who, by duty, were compelled to bring about the
                          disciplinary, judicial, administrative, or other
                          proceeding;

                          (e)     personal   assurances,     supported     by
                          corroborating evidence, of a desire and intention to
                          conduct one’s self in an exemplary fashion in the
                          future,

                          (f) restitution of funds or property, where
                          applicable, and,

                          (g) positive action showing rehabilitation by
                          occupation, religion, or community or civic
                          service. Merely showing that an individual is now
                          living as and doing those things he or she should
                          have done throughout life, although necessary to
                          prove rehabilitation, does not prove that the
                          individual has undertaken a useful and constructive
                          place in society. The requirement of positive
                          action is appropriate for applicants for admission
                          to The Florida Bar because service to one’s
                          community is an implied obligation of members of
                          The Florida Bar.

        Each of these elements will be dealt with in turn, and a copy of the Rule 3-
13.

        Statement provided to FBBE is attached hereto as part of Appendix A.

        (A)      Strict compliance with the specific conditions of any disciplinary,

judicial, administrative or other order, where applicable. Applicant has been under

the requirements of the following orders:

        i. Opinion approving Resignation in Lieu of Discipline with costs awarded

        to The Florida Bar. As shown by the attached Exhibit A to the Rule 3-13


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  statement, a letter from The Florida Bar to Applicant’s then attorney, Alvin

  E. Entin, the cost judgment of The Florida Bar was paid in full back in early

  2000.

  ii. Opinion approving Resignation in Lieu of Discipline: Since Applicant’s

  resignation in lieu of discipline Applicant has not engaged in the practice of

  law, met with clients or handled client trust funds or other property.

  Numerous attorneys have filed quarterly reports with The Florida Bar for a

  number of years attesting to this. Attached hereto as Composite Exhibit B to

  the Rule 3-13 Statement is a representative sample of said quarterly reports.

  iii. Order of Restitution: Pursuant to Applicant’s judgment of conviction

  entered on December 20, 1996, Applicant was ordered to pay $30,000.00 in

  restitution to two parties (Victor Quillen and Abraham Bassie). Attached

  hereto as Composite Exhibit C to the Rule 3-13 Statement are forms and

  receipts from the Department of Corrections attesting that the entire amount

  of restitution was paid in full.

  iv. Divorce Decree: Pursuant to Applicant’s Final Judgment of Dissolution

  of Marriage of April, 1997, Applicant was required to pay child support.

  Attached hereto as Composite Exhibit D to the Rule 3-13 Statement are

  affidavits attesting to Applicant having paid all child support in full since the

  entry of the decree. However, as disclosed in Applicant’s application, prior


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  to the entry of the divorce decree in April, 1997, there was a time in January

  1997, where Applicant was held in contempt for the non-payment of

  temporary child support, but that was purged by the payment of $500.00.

  Attached hereto as Composite Exhibit E to the Rule 3-13 Statement are

  documents attesting to this matter.

  v. Payment of Claims from the Clients Security Fund: Applicant was

  unaware of any claim having been paid by the Client Security Fund until late

  August 2008 when notified of the same by The Florida Bar. Applicant’s

  criminal lawyer was also unaware of the existence of these two claims until

  the fall of 2008, despite having been in oral and written communication with

  The Florida Bar back in early 2000. Applicant had already begun paying the

  Quillen claim through court ordered restitution six months prior to the Client

  Security Fund making its payment to Quillen and paid the restitution in full.

  Within 45 days of being notified by The Florida Bar of the Baskets ‘n

  Buds/Yannantuono claim, Applicant reimbursed the Client Security Fund in

  full. Attached hereto as Composite Exhibit F to the Rule 3-13 Statement are

  copies of the explanatory letter to both The Florida Bar and Florida Board of

  Bar Examiners with respect to the Quillen claim and the letter to The Florida

  Bar with respect to the Baskets ‘n Buds/Yannantuono claim.                                 Composite

  Exhibit C to the Rule 3-13 is also referenced herein as evidence of payment


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      of restitution with respect to the Quillen claim.

      (B)      Unimpeachable character and moral standing in the community:

Attached hereto as Composite Exhibit G to the Rule 3-13 Statement are copies of

letters from various attorneys and others from Florida and New York attesting to

Applicant’s unimpeachable character and moral standing in the community.

Further, each of Applicant’s three witnesses testified as to his character and moral

standing in the community. Gary J. Rotella, an attorney who has known Applicant

for over 20 years, but not a social friend, testified in response to a question

regarding Applicant’s character and moral standing in the community, that the

Applicant enjoys “an excellent reputation in the community for just that.” (T at 26)

Kevin Gleason, an attorney who has also known Applicant for over 20 years, who

previously employed applicant as a paralegal, testified to the same and that

Applicant prepared tax returns for his mother’s estate and that he had absolutely no

reservations about his (Gleason’s) mother selling her townhouse to Applicant and

taking back a mortgage. (T at 54 - 55.) Joel Knee, an attorney who has known

Applicant for 19 years stated as to Applicant unimpeachable character that he

trusts Applicant with the preparation of his family’s tax returns. (T at 77 - 78, 85.)

      (C)      Pursuant to Rule 3.13(c), to the extent that it is applicable, Applicant

has a good reputation for professional ability (to the limited extent of performing

paralegal and tax services). Attached hereto as Composite Exhibit G to the Rule 3-


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13 Statement, are copies of letters from various attorneys and others from Florida

and New York attesting to Applicant’s good reputation for professional ability.

Mr. Rotella also testified that Applicant has a “terrific command of his areas of the

law and has always been extremely generous in terms of his willingness to share

that information.” (T at 24.) Upon further questioning, Mr. Rotella stated that

Applicant is “top tier.” (T at 26.) Mr. Gleason testified “always very good, very

good quality work” (T at 49) when asked about Applicant’s professional abilities.

Mr, Knee stated “when I get something from [Applicant], you know, it has been

well thought out. His position has been well thought out. It’s very accurate, and

he pays a lot of attention to detail”. (T at 79.)

      (D)      Pursuant to Rule 3.13(d), Applicant does not possess any malice or ill

feeling toward those who, by duty, were compelled to bring about the disciplinary,

judicial, administrative, or other proceeding regarding Applicant.                                Applicant

clearly acknowledges that he, and only he, was at fault with respect to this matter.

(T at 124.) Applicant further acknowledges that he deserved the disciplinary

actions which he agreed to and were imposed upon him in 1996. (T at 123-124.)

Applicant further testified “my feelings about the people that were involved with it

back in the ‘90s were that they were simply doing their job… They didn’t do

anything wrong. I’m the one who brought this upon myself. As far as the

proceedings going on now, I am truly appreciative” (T at 123) of the opportunity to


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reapply to the Bar. While it can be expected that the Applicant himself would

make such statements about lack of malice, ill feeling, etc., each of Applicant’s

witnesses echoed these statements with their own testimony. Mr. Rotella: “I’ve

never heard [Applicant] say anything unkind, demeaning, hurtful about anyone,

from the victim to anyone involved anyplace in it”. (T at 31.) Mr. Gleason:

“[Applicant blames himself for his situation”. (T at 56.) “He did not blame those

who were doing their jobs for enforcing the law.” (T at 56.) Attached hereto as

Composite Exhibit G to the Rule 3-13 Statement are copies of letters from various

attorneys and others from Florida and New York further attesting to Applicant’s

lack of malice or ill feeling toward those who were involved in the disciplinary

process.

      (E)      Pursuant to Rule 3.13(e) Applicant hereby clearly and unequivocally

states that he has the desire to conduct himself in an exemplary fashion in the

future and that he has done so for more than the past decade. Applicant testified

“I’ve worked hard to get myself to the point on being able to come back before the

Bar to ask for permission to come in, and I cannot see ever myself putting myself

in that position again.” (T at 115- 116.) When asked if there was any question in

his mind if he were given the privilege of practicing law again that Applicant

would do so in an unimpeachable way and meet all of Applicant’s ethical

obligation, Applicant stated yes. (T at 130 - 131) Applicant further testified that


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he has been more concerned for others (T at 126) and overall been a nicer person

(T at 127) since his wrongful conduct. The FBBE Report does not question the

applicant’s candor in this or any other respect. The witnesses applicant called gave

testimony which was consistent with the applicant on this issue. Question to Mr.

Rotella: “Has he ever discussed with you his desire to become a lawyer and

conduct his life in an exemplary fashion going forward?” Answer: “He has done

that” Question to Mr. Rotella: “And did you believe him?” Answer: “Yeah,

Absolutely I - - sure.” (T at 34.) Further on, Mr. Rotella testified “I think his

demeanor has changed through this. I think that - - I never found him to have

anything other than a nice demeanor, but I think it’s nicer.” (T at 43.) Earlier Mr.

Rotella testified: “I feel strongly that [Applicant] has done everything that one

would reasonably expect, and beyond, to rehabilitate himself and to further his

commitment to be a lawyer.” (T at 32.) Mr. Gleason: “I have a feeling that

[Applicant] is going to be such a good lawyer, he is going to embarrass me” . . .

and “I’m sure it won’t happen again.” (T at 60.) Further on when discussing how

things have changed for the Applicant, Mr. Gleason stated “he knows how to make

the decisions.” (T at 73.) Mr Knee: “He’s been working ever since to be a better

person. And I think he is that person.” (T at 81.) Later on, Mr. Knee stated: “I

wouldn’t be here today if I didn’t believe in [Applicant].” (T at 83.) In addition,

attached hereto as Composite Exhibit G to the Rule 3-13 Statement are copies of


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letters from various attorneys and others from Florida and New York attesting to

Applicant’s desire to conduct himself in an exemplary fashion in the future.

      (F)      Pursuant to Rule 3.13(f), Applicant attests that he has paid restitution

of all funds or property involved with this matter. Attached hereto as Composite

Exhibits C and F to the Rule 3-13 Statement are the documents attesting to the

payment of all required restitution to both the victims pursuant to court order and

the Client Security Fund.

      (G)      Pursuant to Rule 3.13(g), Applicant submits that he has rehabilitated

his character as to justify readmission to The Florida Bar. In addition to leading a

good and ethical life since his disciplinary resignation from The Florida Bar

(which is acknowledged to be insufficient to show rehabilitation), Applicant has

performed thousands of hours of community service for Easter Seals - Miami

Dade, Boys and Girls Clubs of Broward County and St. Jude’s Children’s

Research Hospital. Applicant was the recipient of the Easter Seals - Miami Dade

Volunteer of the Year award 2000 - 2001 (see attached Exhibit H to Rule 3-13

Statement). As part of his volunteer service for Easter Seals - Miami Dade,

Applicant made good use of his tax related skills to save the charity funds by

preparing exempt organization tax returns in place of the auditors hired by the

charity.    Applicant also discovered ways for the charity to obtain refunds of

gasoline taxes paid by the charity. Applicant furthered assisted the President of


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Easter Seals - Miami Dade by exhaustively reviewing over 10 years of board

meetings to create a log of all resolutions, actions and all other important matters

that had taken place over the prior decade. As part of his volunteer service for

Boys and Girls Club of Broward County, Applicant has assisted at golf

tournaments and other matters for over a decade. During the past 4 -5 years,

Applicant has also handled all funds raised during the event, with the full

knowledge of his past history by the members of the Board of Directors who are

involved with the tournament. As part of his volunteer service for St. Jude’s

Children’s Research Hospital, Applicant has served on the Broward County Board

of Directors for the annual golf tournament for approximately six years, being

intimately involved in planning the event as well as raising funds for the event.

Attached hereto as Composite Exhibit I to Rule 3-13 Statement are additional

letters attesting to Applicant’s involvement in charitable matters.                               Applicant

himself testified to his putting in 4 - 5 hours per week of community service at

Easter Seals Miami Dade from 1999 through 2001, a period of at least two years.

(T at 108.) This equates to 400 - 500 hours of community service. Further, Mr.

Rotella quantified Applicant’s community service as (a) Boys and Girls Club for

150 hours per year for 12 - 15 years (T at 40 - 41) for a total of 1,800 - 2,250

hours; and (b) St Jude Children’s Research Hospital at a similar 150 hours per year

(T at 41) which for the six years of involvement would be an additional 900 hours.


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Mr. Rotella was unaware of additional hours of community service involved with

members of his staff (T at 108 - 109) which account for an additional 50 - 100 per

year or an additional 300 - 600 in total. Especially important given the charges in

Specifications 1 and 2, Mr. Rotella stated that “by example, that golf tournament

involves a lot of revenue and involves the need to have very trusted people to

handle it all. And it’s always [Applicant]. He’s the choice of choices. And he

handles it as professionally and responsibly as anyone could ask for. And it’s just

become an automatic thing that [Applicant] will handle all of the finances.” (T at

26) Later on, Mr. Rotella testified that Applicant was selected for the position of

handling the funds by a sizable committee with full knowledge of his prior history.

(T at 29 - 30) Mr. Gleason’s testimony regarding Applicant and his charitable

endeavors was far more expansive than the FBBE Report indicates. The FBBE

Report at Page 10 states “At Mr. Gleason’s request, the applicant volunteered at a

charity golf tournament for the high school attended by Mr. Gleason’s son” (T 53-

54.) However, Mr. Gleason also testified that he asked Applicant “Can you give

me some notes or maybe, you know, your checklist or something. Well, forget

that. He showed up and - at our - at an organizational meeting, I think it was and

had very helpful materials. And then he showed up the at the golf tournament and

worked a full day without being asked. And then a year later he showed up again

and worked the tournament.” (Emphasis supplied, T at 54.) Very importantly,


                           BRINKLEY MORGAN | ATTORNEYS AT LAW
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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
again in light of Specifications 1 and 2, Mr. Gleason testified that Applicant is

trusted to handle funds at his event as well. (T at 56) Mr. Gleason testified as to

some small amount of additional community service hours put in by Applicant

with respect to his charity event, but even without including those hours, Applicant

has put in a total of thousands of hours of community service, dating back over a

decade prior to the Formal Hearing as set forth in the chart below:

      Boys and Girls Clubs ...................................................... 1,800 - 2,250
      St. Jude’s (known to Rotella) .......................................... 900 - 900
      St. Jude’s (without Rotella knowledge)............................300 - 600
      Easter Seals Miami Dade ..................................................400 - 500
      Totals ................................................................................3,400 - 4,250

      Applicant submits that he has shown, by clear and convincing evidence, that

he has rehabilitated his character sufficient to justify his readmission to The

Florida Bar.

                       SPECIFICATION TWO AND RESPONSE

      II. Specification Two states as follows:

       “You were charged by Information with Grand Theft, a First Degree
      Felony; Grand Theft, a Second Degree Felony; and Grand Theft, a
      Third Degree Felony, for stealing money from your trust accounts.
      This was the same conduct that led to your disciplinary resignation
      described in Specification 1 above.

      You pled nolo contendere to Grand Theft, a Third Degree Felony. On
      December 20, 1996, you were adjudicated guilty of this crime. You
      were sentenced to five years probation, and order to pay $30,000.00 in
      restitution. Your probation was terminated on March 28, 2000. Your
      civil rights were restored on March 23, 2001.”


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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
        Applicant, in his answer to the Specifications (FHR-BE Exhibit 3 at

Specification 2) admitted the allegations in Specification 1, but as discussed,

supra, under Proof of Rehabilitation, Applicant submits that he has carried the

admittedly heavy burden of proof of rehabilitation when the underlying charges

involve theft of trust funds.

                       SPECIFICATION THREE AND RESPONSE

        III. Specification Three states as follows:

        “You were financially irresponsible leading up to your filing for
        Chapter 7 bankruptcy on December 5, 2002. Because of your
        irresponsibility, you stole money from your trust accounts as
        described in Specification 2 above. The total amount stolen was never
        judicially determined. You were ordered to pay $30,000.00 in
        restitution as a result of your criminal conviction. The Florida Bar
        alleged in its Complaint filed against you on February 21, 1996 that
        your trust account was short $180,276.57 as of November 30, 1995.

        In addition, according to your bankruptcy pleadings, you had incurred
        a total debt of $376,930.69, which included $184,906.11 in credit card
        debt, $16,243.00 in veterinarian bills 1, judgments totaling
        $104,400.00, loans totaling $48,500.00, and $14,000.00 in unpaid
        child support 2. In the 1995 to 1996 timeframe, you also borrowed
        money from loan sharks.

        You filed for Chapter 7 bankruptcy on December 5, 2002. The
        Discharge of Debtor in your bankruptcy case was filed on March 20,
        2003.”

        Applicant, in his answer to the Specifications (FHR-BE Exhibit 3 at
1
 This was later shown to be a loan from Applicant’s brother in approximately 1996 who is a veterinarian. T at 161.
2
 By Affidavits dated May 2004 and August 2008, Applicant’s former spouse has acknowledged that Applicant has
been current on all support obligations since the divorce decree was entered in April 1997. Rule 3-13 Statement
Composite Exhibit D. By written submission to FBBE, Applicant explained that the obligation to his former spouse
was listed in his bankruptcy schedules since it was a fixed amount and that it was agreed that it was non-
dischargeable.


                             BRINKLEY MORGAN | ATTORNEYS AT LAW
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     Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
Specification 3) admitted in part and denied in part the allegations in Specification

3. Applicant admits that he was financially irresponsible leading up to his decision

to file a Chapter 7 bankruptcy petition in December 2002 (FHR-BE Exhibit 3 at

Specification 3). Applicant’s uncontroverted testimony at the Formal Hearing was

that the vast majority of the debts discharged in his bankruptcy proceeding arose

during or prior to the 1995 - 1996 time period surrounding his disciplinary

resignation. (T at 103) Applicant also testified that during that time frame, his

spending was out of control and that he lived beyond his means. (T at 103.)

Applicant’s further uncontroverted testimony was that since the filing of his

bankruptcy to the time of the investigative and formal hearings (a period of almost

8 years) that he was no longer financially irresponsible. “I do my best to just live

within my means” T at 103. Applicant testified that he and his second wife clearly

live within their means and generally do not purchase items unless the funds are on

hand to pay for the same. “Now it’s real simple. If I don’t - - it I’m going to go

buy something or if I want to get something, if I don’t have the money, I don’t do

it, or I save up to get it” (T at 103) Applicant and his second wife did purchase a

new home in late November 2009 but it was based upon the careful consideration

that the cost of owning the new home would be less (after tax considerations) than

what they were paying in rent for the previous year. (T at 103 - 105, 188 - 190.)

Lastly, Applicant’s uncontroverted testimony was that he had not been late on a


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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
monthly payment since his filing for Chapter 7 bankruptcy in December 2002, that

about a month prior to the time of the Formal Hearing he had no more than

approximately $1,000.00 in unsecured credit card debt (T at 114, 160), that his

only regular fixed monthly expenses were his mortgage and his wife’s car

payment, each of which had been timely paid since their inception. Further, he

was able to obtain such a favorable mortgage rate (4.99%), due to his paying his

bills on time for such a considerable period, that his credit scores from the three

major credit bureaus were 733, 750 and 765. (T at 104 - 105, 114 - 116, 188 - 189)

      Accordingly, while Applicant admits that he was financially irresponsible

leading up to his bankruptcy filing in December 2002, Applicant submits that he

has been financially responsible since his filing for bankruptcy in 2002.

Accordingly, when combined with Applicant’s proof of rehabilitation discussed

supra, Applicant’s filing for bankruptcy in December 2002 should not disqualify

him for admission to The Florida Bar.

                      SPECIFICATION FOUR AND RESPONSE

      IV. Specification Four states as follows:

      “You signed an Eastern Financial Florida Credit Union Loan (“Credit
      Union”) Application dated March 26, 2007. Immediately above your
      signature on this application was the following statement:

               You agree that everything stated in this application,
               whether oral, written, or through a FAX machine, is true
               and correct to the best of your knowledge. The Credit
               Union or its agent is authorized to investigate your credit

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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
               worthiness, employment history, verify your identity and
               to obtain a credit report and to answer questions about
               their credit history with you, you understand that any
               false or misleading statements in your application may
               cause any loan to be in default. You agree that this
               application shall be the Credit Union’s property whether
               or not this Credit Application is approved.

               The USA Patriot Act requires that we obtain, verify and
               record information that identifies each person who opens
               an account.

            Your responses on this application were incomplete,
      misleading, lacking in candor, and irresponsible in that many
      questions on the form were left unanswered, including a question
      about prior bankruptcies, and some information on the application was
      not accurate.”

      Applicant admitted in part and denied in part the allegations of Specification

4. (FHR-BE 3 at Specification 4) Applicant admitted that the Credit Application

was incomplete, but the decision as to which questions the Credit Union wanted

answered was entirely its own. All of this information on the application other

than applicant’s signature was placed thereon by a representative of the Credit

Union. Further Applicant stated he did not intend to mislead, be less than candid,

or irresponsible. A copy of the loan application is part of the Formal Hearing

record (FHR-OGCE 9). A review of the loan application reveals one error and

numerous unanswered questions. The error is that on the first page Applicant’s

income is listed as $1.00 per month even though it was dramatically greater. No

questions on the second page were answered including the question regarding


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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
bankruptcy. Very importantly, the box claiming “no” bankruptcy was not checked.

A review of the loan application also reflects that it was undoubtedly printed on the

lender’s computer system principally due to the small type properly fitting into

each of the boxes on the first page of the loan application.

      Applicant admits that he signed the loan application, but as his

uncontroverted testimony at the Formal Hearing stated, (a) he was a pre-existing

customer of the financial institution, (b) he did not initiate the loan transaction; (c)

he was contacted by an employee of the lender on a Saturday via telephone and

informed that the lender had already checked his credit score and was granting him

a $5,000.00 credit line; and (d) Applicant was told all he had to do was come in

and sign some papers.              Under these terms, Applicant agreed to accept the

unsolicited loan and came in to lender’s office a couple of days later to sign the

papers. (T at 116 - 119, 168, 184) Applicant signed the application as it was

presented to him. Applicant testified he should have reviewed the paperwork more

carefully before signing the same. (T at 119, 163, 170.) Applicant testified clearly

that he has not and would not sign papers under similar circumstances. (T at 119,

163, 170.)

      Since the lender informed Applicant that his credit report had already been

obtained and the loan had been approved, it was reasonable for Applicant to

presume that lender was aware of his bankruptcy filing that had taken place over


                           BRINKLEY MORGAN | ATTORNEYS AT LAW
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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
four years earlier. (T at 117 - 118.) Under these circumstances, while Applicant

acknowledges that he should have reviewed the loan application more carefully,

the weight to be assigned to the omissions should be minimal or none at all.

      Accordingly, the loan application should not be an event disqualifying

Applicant from admission to The Florida Bar, and, further, that Applicant’s proof

of rehabilitation, supra, should overcome any issue raised by the incomplete loan

application.

                       SPECIFICATION FIVE AND RESPONSE

      V. Specification Five states as follows:

      “You appeared before a division of the board at an investigative
      hearing held on November 13, 2009, at which you were questioned on
      matters material to the board’s investigation into your character and
      fitness for admission to The Florida Bar. At you hearing, you gave
      the following sworn testimony with regard to your incurring credit
      card debt prior to your bankruptcy:

       (Investigative transcript hearing, Pages 6 - 7 omitted)

      This sworn testimony was false, misleading, or lacking in candor, in
      that, as you admitted later at the hearing in response to further
      questioning, you admitted that you had incurred significant credit card
      debt prior to 1995.”

      Applicant denied that any testimony he gave at the informal hearing was

false, misleading or lacking in candor. The FBBE heard Applicant’s testimony on

this issue and determined that Specification Five was not proven. Therefore,

Specification Five should play no role in this Court’s decision.


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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
                                           CONCLUSION

      Scott Itkin has dramatically and positively changed as a person in the last

fifteen years. He has become a caring, mature, and thoughtful member of our

society. He not only meets all of his obligations, but, for at least the last nine years,

has spent hundreds of hours per year volunteering to help others. He does this

without fanfare and without looking for credit. Fifteen years ago he lived beyond

his means and for a brief period of time, stole money to pay for his excesses. The

person who did that is gone, but for his name and the loss of his privilege to

practice law.

      As Scott expressed in his testimony, he has changed his life and his way of

thinking, in part, to demonstrate to his now teenage son, that a wrong can be

righted. He also saw how his prior actions hurt so many people - including clients,

friends, family, and the Bar. He has gone on to reestablish his life, volunteer for

several charities, devote himself to being a good and involved father, establish a

successful new career as a tax preparer and paralegal, and fallen in love and gotten

remarried.

      Scott has also striven to repair the pieces of his life that he damaged through

wrong actions. This includes his ability to be trusted, which he has repaired to the

extent that at least two large charitable organizations have him in charge of

keeping track of the cash at two of their events, even though those in charge are


                           BRINKLEY MORGAN | ATTORNEYS AT LAW
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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
aware of his past. It also includes devoting himself to being actively acting as a

positive example in his son’s life, and his unceasing quest to be readmitted to our

noble profession.

      Obviously, the decision as to whether to readmit Scott is entirely this

Court’s. While you cannot know Scott’s heart from reading the words in this

petition or the transcript, his deeds reflect that he has learned what is important in

life and has done all of those things which outwardly manifest that his heart has

changed and that he is rehabilitated. Scott now humbly asks this Court to grant his

readmission to The Florida Bar.

                                                           Respectfully submitted,

                                                           __________________________
                                                           HARRIS K. SOLOMON
                                                           Brinkley Morgan
                                                           Attorney Number 259411
                                                           200 East Las Olas Blvd., 19th Floor
                                                           Fort Lauderdale, FL 33001
                                                           (954) 522-2200
                                                           COUNSEL FOR APPLICANT




                           BRINKLEY MORGAN | ATTORNEYS AT LAW
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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209
                                CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Initial Brief in

Support of Petition for Review was served via U.S. Mail this 2nd day of May,

2011, upon Michelle A. Gavagni, Executive Director, Florida Board of Bar

Examiners, 1891 Eider Court, Tallahassee, FL 32399-1750 and Robert G. Blythe,

Office of General Counsel, Florida Board of Bar Examiners, 1891 Eider Court,

Tallahassee, FL 32399-1750.



                                                           ______________________________
                                                           HARRIS K. SOLOMON, ESQ.



                            CERTIFICATE OF COMPLIANCE

      I HEREBY CERTIFY that the foregoing brief has been typed using the

Times New Roman 14 point font, and therefore complies with the font

requirements of the Florida Rule of Appellate Procedure 9.210(a)(2).



                                                  By:____________________________
                                                       HARRIS K. SOLOMON




                           BRINKLEY MORGAN | ATTORNEYS AT LAW
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    Sun-Sentinel Building | 19th Floor | 200 East Las Olas Boulevard | Fort Lauderdale, Florida 33301-2209

				
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