IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR

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					                IN THE SUPREME COURT OF FLORIDA



THE FLORIDA BAR,                           Supreme Court Case
                                           No. SC02-1188
          Complainant,

vs.

DAVID DEUTSCH,

           Respondent,
__________________________/
                   _________________________________

                      ON PETITION FOR REVIEW
                   ________________________________

                 INITIAL BRIEF OF THE FLORIDA BAR

                                     RANDI KLAYMAN LAZARUS
                                     Bar Counsel - TFB #360929
                                     The Florida Bar
                                     444 Brickell Avenue, Suite M-100
                                     Miami, Florida 33131
                                     (305) 377-4445

                                     JOHN ANTHONY BOGGS
                                     Staff Counsel - TFB #253847
                                     The Florida Bar
                                     651 E. Jefferson Street
                                     Tallahassee, Florida 32399-2300
                                     (850) 561-5600

                                     JOHN F. HARKNESS, JR.
                                     Executive Director - TFB #123390
                                                    The Florida Bar
                                                    651 E. Jefferson Street
                                                    Tallahassee, Florida 32399-2300
                                                    (850) 561-5600
                                         TABLE OF CONTENTS
                                                                            PAGE

Table of Contents ..........................................................................       -i-

Table of Authorities ......................................................................        -ii-

Statement of the Case and of the Facts ........................................                      1

Issue on Appeal ............................................................................         16

Summary of Argument ..................................................................               17

Argument .......................................................................................     19

                  THE PRIVILEGE TO PRACTICE LAW SHOULD
                  BE   REVOKED     WHEN    AN  ATTORNEY
                  CRIMINALLY CONSPIRES WITH A CLERK OF
                  THE COURT TO PLACE FALSE DATE STAMPS
                  ON MOTIONS FILED WITH THE COURT AND
                  SUBSEQUENTLY PAYS FOR A CLERK’S STAMP
                  FOR HIS OWN PERSONAL USE

Conclusion.....................................................................................      29

Certificate of Service ....................................................................          30

Certificate of Type, Size, Style and Anti-Virus Scan ...................                             30

Appendix .......................................................................................          31
Index to Appendix .........................................................................   32




                                                       -i-

                                     TABLE OF AUTHORITIES

CASES                                                                                         PAGE

The Florida Bar v. Anderson,
      538 So.2d 852 (Fla. 1989) ............................................................. 19

The Florida Bar v. Cueto,
      834 So.2d 152 (Fla. 2002) ..............................................................
24,25

The Florida Bar v. Deutsch
      SC83576, Order dated May 5, 1994 ............................................... 21

The Florida Bar v. Karahalis,
      789 So.2d 27 (Fla. 2001) ............................................................... 27

The Florida Bar v. Klausner,
      721 So.2d 720 (Fla. 1998) .............................................................. 24,
26

The Florida Bar v. Knowles,
      500 So.2d 140 (Fla. 1986) .............................................................. 22

The Florida Bar v. Levin,
      570 So.2d 917 (Fla. 1990) ............................................................. 21

The Florida Bar v. Nedick,
        603 So.2d 502 (Fla. 1992) .............................................................. 25

The Florida Bar v. Rendina,
      583 So.2d at 316 (Fla. 1991) .......................................................... 25

The Florida Bar v. Salnik,
      599 So.2d 101 (Fla. 1992) .............................................................. 23

The Florida Bar v. Shuminer,
      567 So.2d 432 (Fla. 1990) ............................................................. 22

The Florida Bar v. Temmer,
      753 So.2d 555 (Fla. 1999) .............................................................. 19

                                    -ii-
                  STATEMENT OF THE CASE AND OF THE FACTS

        On May 29, 2002, The Florida Bar filed its complaint charging the

respondent with misconduct which arose from his arrest and conviction for four

(4) misdemeanors of falsifying a public record in violation of Florida Statute 839

(13) (1). These events concerned respondent’s criminal complicity with an

employee of the Clerk of the Court, in and for Miami-Dade County, Florida. In

an effort to successfully set aside driver’s license suspensions for clients who had

exceeded the statutory time limit to obtain a trial, the respondent filed a motion

with the traffic court in which he falsely claimed that he had previously filed a

notice of appearance and that the clerk’s office failed to set the matter for trial.



                                                    1
Respondent attached a falsely created notice of appearance with a clerk’s stamp

showing that the document had been filed with the clerk of the court on the

earlier date. Respondent conspired with the clerk to stamp a false date with an

official clerk’s stamp. In reality a notice of appearance had never been filed by

the respondent. Eventually, the respondent obtained a stamp from the clerk and

stamped the false date himself. The respondent paid the clerk several hundred

dollars for the actual stamp. (TR-5). The scheme was uncovered by the

Honorable Steven Leifman, Associate Administrative Judge responsible for the

traffic adjudication system.

      The final hearing began on January 15, 2003 and concluded on February

11, 2003. At the commencement of the final hearing of this matter the

respondent

announced his guilt as to all of the allegations made by the Florida Bar and an

intention to present a case in mitigation. (TR-5). The Florida Bar presented the

Honorable Steven Leifman, as its first witness. Judge Leifman has been a

member of The Florida Bar since 1987. He became a judge in 1995. In

February of 2000 the Honorable Joseph Farina, Chief Judge of the Eleventh

Judicial Circuit designated him as an Associate Administrative Judge responsible


                                           2
for the traffic adjudication system. (TR-18). Judge Leifman explained the

process concerning the disposition of traffic citations. The lawyer or the

defendant has thirty (30) days from the date they receive a citation to set the case

for trial, elect driving school or pay the ticket. If nothing is done within thirty

(30) days, the Department of Motor Vehicles automatically suspends the driver’s

license. If the license is suspended, the person can pay the ticket, which will

require them to get points on their license, they can file an ex-parte motion -

which comes before Judge Leifman - to set aside the suspension and reset it for

trial, plead guilty or no contest or elect driving school. (TR-19). Judge Leifman

is the only judge to hear the case. Although the rule requires a request for a trial

to be made within thirty (30) days, he has allowed the request to be made within

ninety (90) days and will

automatically set aside license suspensions on requests made within that time and

allow a trial to proceed. (TR-20).

       In September of 2000, Judge Leifman filed a grievance with The Florida

Bar in regard to criminal and unethical conduct of David Deutsch. (TR-21).

Attached to the grievance was a motion to set aside suspension filed by Deutsch.

The motion is designated as ex-parte since the State Attorney does not handle the


                                             3
case and the police do not get involved unless the case goes to trial. There is no

opposing party. The motion alleged that although a notice of appearance was

timely filed and clocked in with the Clerk’s office, the matter was never set for

trial. That particular ticket was at least two (2) years old. Judge Leifman was

concerned about the actions of the clerk’s office at first. (TR 22-23). The judge

relied on the representations to be truthful as they were made by a member of

The Florida Bar. (TR-24). Judge Leifman began to see a pattern after granting

between twenty (20) and thirty (30) motions like the one that had been filed by

Deutsch. The judge’s radar went off that something was not right since Deutsch

was the only lawyer in Miami-Dade County filing motions of this nature out of

the 750,000 tickets given. (TR-25). The judge had seen up to one hundred

(100) motions of this nature filed by Deutsch. Judge Leifman contacted the

deputy clerk in charge of traffic tickets. (TR. 26). The clerk, Manny Caremas,

had noticed the same pattern by Deutsch for six (6) months earlier and had tried

to get other judges to do something without success. The State Attorney was

contacted and began an undercover police investigation. (TR 27-28). Judge

Leifman learned from the police that Mr. Deutsch had been collecting Two

Hundred and Fifty Dollars ($250.00) per case to move to set aside license


                                           4
suspensions where a timely request had not been made. The police sent in an

undercover officer who was wired and Mr. Deutsch then filed the fraudulent

notice of appearance. (TR-29). Judge Leifman learned that Mr. Deutsch had a

clerk stamp the notices of appearance and then Mr. Deutsch purchased a stamp

from the clerk and began to stamp his own notices of appearance. (TR-30). Mr.

Deutsch’s actions undermined and corrupted the judicial process since the Judge

expected honesty from a lawyer in an ex parte motion. If he had to question

every motion and the lawyer’s veracity he could not do his job. To Judge

Leifman, it was one of the worst things a lawyer could do. It’s a bold-faced lie to

the Court. (TR 30-31).

       Judge Leifman also testified that he was getting hundreds of boiler plate

motions from Mr. Deutsch with no factual distinction other than the names of the

defendants. The motions alleged that the police officers were not telling people

that they had a right to go to trial. At first, Judge Leifman started granting the

motions until he realized he did not know if their contents were truthful. (TR

32).

       Judge Leifman noted that Mr. Deutsch’s initial responses to his grievance

filed with the Bar were to blame the court for his actions. It concerned the judge


                                             5
that Mr. Deutsch has a lack of insight that what he has done is wrong and is as

bad as it gets for a lawyer. He does not know how a judge could ever trust a

lawyer after that. (TR 33-34).

      On cross examination Judge Leifman testified that he chairs a committee

for the mental health portion of the county courts. The kind of mental health

cases he hears deal with severe and persistent cases and he is very sensitive to

those people who are usually incompetent and do not even know what day it is.

Mr. Deutsch, however, is a member of The Florida Bar and has a responsibility

to act accordingly. Once people have an insight into their problem they can

recover and move on. All Judge Leifman has heard from David Deutsch is that

since the judge was denying his motions and the poor victims couldn’t get their

licenses, he needed a way to get their license. Judge Leifman testified that was

not true and Deutsch’s lack of insight concerned him. (TR 36-39). He also

stated that he has reviewed Deutsch’s pleadings since the criminal conduct and a

couple have been inappropriate. (TR-42).

      Jani Singer was the Bar’s next witness. She has been a member of the

Florida Bar since 1988 and is currently an Assistant State Attorney in Miami-

Dade County. In the spring of 2000 she supervised an investigation concerning


                                           6
David Deutsch. (TR-44). She entered into plea negotiations with Mr. Deutsch

and his attorney, Marian Garcia. At the initial meeting Jonathan Heller was

present together with representatives from the Miami-Dade Police Department.

In Ms. Singer’s experience it is common for defendants to mitigate or justify their

behavior by talking about problems or addictions as part of their plea

negotiations. During her negotiations with Mr. Deutsch and his attorneys there

was never any mention of a gambling addiction. Had that been the case the plea

agreement would have required him to seek assistance for the addiction. (TR-

45). Ms. Singer was aware that Mr. Deutsch was charging Two Hundred and

Fifty Dollars ($250.00) per client for the motions. (TR-46).

      After the foregoing witnesses testified, the undersigned read several

admissions made by Mr. Deutsch into the record and introduced them without

objection. Certain admissions were made by Mr. Deutsch in a deposition he

gave to The Florida Bar on January 8, 2003. (TR-50). Mr. Deutsch has been

placing bets with a bookie, someone who places bets illegally, since he was

fifteen (15) or sixteen (16) years old. Other than backdating documents Mr.

Deutsch had no other lapses of judgment in his large practice. (TR-53). Mr.

Deutsch allowed a bookie operation to operate in his office four (4) or five (5)


                                           7
years earlier until they were “busted” by the F.B. I. since he owed someone

money. There were more than three (3) people and their operation was at night

after Mr. Deutsch had left. (TR 54-55). During the past few years Mr.

Deutsch’s income was about One Hundred Thousand Dollars ($100,000.00) to

One Hundred and Fifty Thousand Dollars ($150,000.00) per year. (TR-57).

Before Judge Leifman’s administration began, Judge Pooler or Sigler would

routinely grant Mr. Deutsch’s motions. When the change of administration came

in, Deutsch’s motions were universally denied. The only recourse people had,

according to Deutsch, was to pay their ticket, get points on their license and their

insurance would go up. Mr. Deutsch expressed his frustration over and over and

over again. (TR 58-59).

      Mr. Deutsch began seeing Dr. Savitz in February of 2002 because he was

still gambling at that time. (TR-59). Mr. Deutsch could not represent clients

who went beyond the ninety (90) day deadline unless he backdated the

documents. (TR-60).

      The Florida Bar introduced documents reflecting David Deutsch’s prior

discipline in a Florida Supreme Court order dated May 5, 1994. In Paragraph 4-

F of the consent judgment it reflected that Mr. Deutsch had backdated an


                                            8
affidavit which was actually signed on December 14, 1992, and presented that

affidavit to the Florida Bar as a document that was signed in February, 1993.

Mr. Deutsch also notarized an affidavit outside of the presence of the person, met

with someone who was represented by counsel and claimed that he thought they

were unrepresented, claimed he never received a notice of unavailability from the

other side who was representing the other party when, in fact, the Bar obtained

Mr. Deutsch’s file and that notice of unavailability was in his file. (TR 67-69).

      The initial response filed with The Florida Bar on behalf of Mr. Deutsch

dated October 18, 2000 to Judge Leifman’s grievance was introduced. Although

it listed a series of mitigating circumstances, gambling was never mentioned.

(TR 69-70).

      The respondent presented Dr. John Eustace as his first witness. Dr.

Eustace graduated from the University of Miami School of Medicine in 1974

where he completed his internship and residency. He went on to two (2) years of

faculty in the Department of Medicine and then went into private practice. In

July of 1983, he joined the staff of the South Miami Hospital Addiction

Treatment Program and eventually became Medical Director of the program,

where he remained for seventeen (17) years. In September of 2002, he formed a


                                            9
private practice for addiction medicine in South Miami. From January of 2002

until the present he remains a volunteer at the University of Miami Department of

Psychiatry. He is a member of the American Society of Addiction Medicine and

of the Florida Society of Addiction Medication. He is board certified in internal

medicine. (TR 71-74). Dr. Eustace has treated about ten thousand (10,000)

patients, a majority of whom have chemical addictions. About one hundred

(100) of his patients have had gambling addictions. (TR-74).

      The witness stated that addiction is a complex disorder involving the

physical, mental, emotional, social and spiritual well being of the individual and

is recognized as a disease by the medical authorities.   Addiction results in

periodic irrational behavior, loss of control and behaviors which ordinarily

would not be exhibited by the patient. (TR-76). The American Psychiatric

Association classifies gambling as an addiction, as they do chemical addictions.

Substance abuse addicts are similar as a group as far as behaviors to gamblers.

Impairment means that a disorder has affected the ability of the patient in the

forming areas of their life. Gambling causes impairment. (TR-78).

      Respondent’s attorney contacted Dr. Eustace in January of 2003 to see Mr.

Deutsch to determine his opinion. Dr. Eustace did a comprehensive office-based


                                           10
evaluation. (TR-80). He has spent five (5) hours with Mr. Deutsch. (TR-86).

He concluded that Mr. Deutsch fit criterion for pathological gambling disorder or

a gambling addiction. (TR-81). Denial is a component of the addiction.

Deutsch has generally broken through his denial by May of 2002. (TR 83-85).

Dr. Eustace believes that Deutsch’s gambling disorder was the reason for his loss

of control over his behavior in multiple areas, including his work. (TR-85). If

Mr. Deutsch follows standard processes of treatment, advocacy and monitoring

his prognosis should be excellent, according to the witness. (TR-87). Mr.

Deutsch has entered into a professional relationship with someone who knows

about his disorder and has been attending a peer support group at Mount Sinai.

(TR 87-89). In Dr. Eustace’s opinion, Deutsch is in remission and is not

impaired as of the date of his testimony. (TR-92). It is difficult for Dr. Eustace

to say whether Mr. Deutsch would have committed the acts in question but for

the gambling addiction. (TR-95).

       On cross examination by The Florida Bar, Dr. Eustace discussed the issue

of a relapse and that there was a possibility, although not a probability, that the

respondent could engage in other forms of unethical behavior, such as

misappropriation in the trust account. Even if Mr. Deutsch is involved with a


                                            11
support group they would not be able to alert the Bar to the unethical activity in

enough time to prevent it from occurring. One of the problems with the end

stage behavior of gambling is converting funds. Dr. Eustace did not see

antisocial traits as pervasive in Mr. Deutsch’s life. (TR 97-98). Dr. Eustace does

not believe that Mr. Deutsch is a con man. (TR 103-104). He believes he suffers

from a “good guy syndrome.” It is a pathology of a person who has lost control

of various areas in their life where they do things because they believe it’s

correct. Dr. Eustace stated that Deutsch’s allowing a bookie to use his office is

part of addictive behavior showing a loss of a boundary. (TR-107). Dr. Eustace

testified that much of Mr. Deutsch’s gambling was illegal. (TR-120).

      Jonathan Heller, a member of The Florida Bar for twenty-two (22) years,

testified on behalf of the respondent. His practice involves mainly commercial

litigation and he currently serves on a Florida Bar Grievance Committee. (TR-

135). He has known Deutsch since they were both in high school. (TR-136).

Deutsch telephoned him after he was arrested and they had a heated conversation

since he had made himself available to Deutsch professionally and Deutsch had

not come to him. The witness expressed his sense that either he had let the

respondent down or the respondent did not honor his commitment. (TR 138-


                                            12
140). In that conversation Deutsch mentioned gambling, but did not dwell on it.

Deutsch told Heller there was no money involved. (TR-140).

      For the past two (2) to three (3) years Mr. Heller has visited the

respondent’s office once a month or once every other month and gained a

knowledge of how his practice operates. He has asked to see logs, pleadings

and how money is handled. He would be willing to continue to do that. (TR-

144). Deutsch has shown remorse. (TR-146). In 1994, when Mr. Heller

represented Deutsch the first time he was suspended from the Bar, Heller

promised to be available and offer assistance if Deutsch needed it professionally.

Deutsch did not refuse that offer. (TR 147-148).

      Michael Cohen, the Executive Director of Florida Lawyer’s Assistance

(FLA) was Deutsch’s next witness. That organization is a program created by

the Bar and the Court to help lawyers and others with substance abuse and other

problems. (TR-155). Deutsch came to FLA because of the legal and Bar

problems he was going through. Mr. Cohen recommended he meet with a

mental health provider. Mr. Cohen did not know whether that recommendation

was followed. Mr. Deutsch has been coming to attorney support meetings. (TR-

156). He would recommend that the respondent continue to see a therapist and


                                           13
to attend recovery program. (TR-157). He would recommend that Mr.

Deutsch enter into a contract with FLA if it would make the Bar or the Court

more comfortable. (TR-158).

      The respondent presented Rabbi Pinkhas Andrusier as his next witness.

The Rabbi runs a Chabad Center, which includes a synagogue and community

outreach. (TR-161). He has known Deutsch for ten (10) years. He said that the

respondent is one of the most outstanding people in his community and has

supported countless needy families in many ways without having his name

mentioned. (TR-162). Deutsch also has lectured school children about road

safety. (TR-163). In one instance the respondent befriended a terminally ill man

and kept him busy in his office. After his death the respondent paid for all

funeral arrangements and provisions for the family. He also paid for the family

to attend a holiday retreat at a hotel. Another example was one in which the

respondent helped a family whose teenage daughter was tragically killed in an

accident. (TR-164). One family lost their home in a fire and Deutsch paid to

refurnish their new home. (TR-165).

      David Deutsch appeared on his own behalf. He has been a member of The

Florida Bar since 1989. He worked in real estate before practicing law. (TR-


                                           14
167). In 1992 or 1993 he opened a general practice. (TR-168). He had a

previous Bar problem in which he pled to a 30-day suspension which was in his

best interest financially and he was probably guilty of most of the complaint.

He was gambling out of control then. (TR 169-170). Deutsch began gambling

in athletics at around thirteen (13) or fourteen (14) years of age. In his teens he

went to bookmaking. He has learned that gambling is an addiction. (TR 170-

171). He has cleansed himself in the last three (3) years. He is married with four

(4) children. He hates himself for what he has done. (TR 170-172). He pled

guilty to four misdemeanor offenses because he was guilty. (TR 172,188). He

has learned that it was his impaired judgment that caused him to act in haste and

do things without thinking. He wasn’t realizing the consequences of what he

was doing. He is embarrassed about his actions and has complete remorse.

From here on he can live a better life and be honest and help his fellow man.

(TR 172-173). He stopped gambling in May of 2002. (TR-173). He now

understands his addiction and impairment. (TR-175).

      He saw Dr. Savitz in Fort Lauderdale and a few weeks before the final

hearing he met with Dr. Eustace and Dr. Bauer. He will continue therapy with

Dr. Eustace on a monthly basis. (TR-176). He is willing to sign a three (3) year


                                           15
contract with FLA and to continue in therapy and be monitored by Jonathan

Heller. (TR-177).

      In 1997 respondent’s traffic ticket business took off. His office handles

between one hundred (100) and two hundred (200) tickets a week. He does as

many as 7,500 or 10,000 tickets a year. (TR-179). He is in his office for half of

the day and in different courts for the other half of the day. He would charge

Two Hundred and Fifty Dollars ($250.00) a ticket for an individual who missed

a deadline. (TR -181). He backdated documents approximately thirty (30)

times. (TR-182). There came a day when he was late to file a document in the

North Dade Justice Center and a clerk offered to backdate a document. He did

not realize what he was doing and should have. He now realizes it was wrong.

(TR183-184). He didn’t buy a clerk stamp but he paid money to someone for a

stamp. He mentioned to the clerk who had been backdating for him, in passing,

that if you could ever get a stamp, it would be great. He never expected to get it.

He never needed to get it because of the relationship he had established with the

clerk. (TR-184). One day the clerk threw a little casing to him with the stamp.

He paid money for the stamp, but not an agreed upon price. It was during the

time he was gambling and he could see how his impaired judgment caused him


                                           16
not to make the right decision. (TR-185). He did it for the sake of letting his

clients have access to the court, to have their day in court to be heard. (TR

186,197). Mr. Deutsch kept the stamp at his home because nobody in his office

knew about it and he wasn’t really intending to use it. (TR-195). Mr. Deutsch

did use that stamp. (TR-196). Deutsch allowed a bookie to occupy his office at

night, but had no other lapses of judgment in his law practice. (TR-198).

      Deutsch assisted the police in their investigation because he was remorseful

and to help reduce the charges from a felony to a misdemeanor. (TR- 189). He

plead guilty in December 2001. (TR-191). He has completed a year of reporting

probation and paid a fine to the court.

      The Bar recommended disbarment and the respondent requested a 75-day

suspension. (TR 209,223). The referee issued a report recommending that the

respondent be suspended for three (3) years to be followed by three (3) years of

probation and numerous other conditions. ( A-1). The Florida Bar has

petitioned for review of the recommended discipline. This appeal follows.




                                          17
               ISSUE ON APPEAL

WHETHER THE PRIVILEGE TO PRACTICE LAW SHOULD
BE REVOKED WHEN AN ATTORNEY CRIMINALLY
CONSPIRES WITH A CLERK OF THE COURT TO PLACE
FALSE DATE STAMPS ON MOTIONS FILED WITH THE
COURT AND SUBSEQUENTLY PAYS FOR A CLERK’S
STAMP FOR HIS OWN PERSONAL USE




                     18
                         SUMMARY OF THE ARGUMENT

      Respondent, David Deutsch, a successful attorney with a thriving traffic

ticket practice engaged in criminal conduct with a clerk of the court. Because

Deutsch was dissatisfied with the denials of motions to set aside license

suspensions filed outside of the statutory time requirements the clerk, at

Deutsch’s request, used an official stamp to backdate notices of appearance to

give the appearance that they had been previously filed. Subsequently the

respondent purchased a stamp from the clerk and stamped the fabricated notices

himself. Deutsch assisted the State in their investigation of the clerk by wearing

a wire and was rewarded with four (4) misdemeanor convictions, each of which

was a violation of F.S. 839 (13)(1), Falsifying a Public Record.

      On September 13, 2000 the Honorable Steven Leifman, the Associate

Administrative Judge responsible for the traffic adjudication system who

discovered the corruption, filed a grievance with The Florida Bar. Although

respondent claimed various mitigating factors it was not until probable cause was

found that David Deutsch claimed he was addicted to gambling. Once the

respondent had completed his assistance to the State, he was finally convicted in

December of 2001.


                                           19
      The referee found the respondent’s “gambling addiction” as mitigating and

despite the existence of prior discipline involving backdating an affidavit to The

Florida Bar did not disbar Mr. Deutsch.

      It is the position of The Florida Bar that despite the finding of mitigation

by the referee, the fact that the misconduct attacks the core of the judicial system

outweighs any mitigating circumstances.




                                           20
21
                                      ARGUMENT

       THE PRIVILEGE TO PRACTICE LAW SHOULD BE
       REVOKED    WHEN     AN   ATTORNEY CRIMINALLY
       CONSPIRES WITH A CLERK OF THE COURT TO PLACE
       FALSE DATE STAMPS ON MOTIONS FILED WITH THE
       COURT AND SUBSEQUENTLY PAYS FOR A CLERK’S
       STAMP FOR HIS OWN PERSONAL USE

       This Court’s scope of review over disciplinary recommendations is broader

than that of findings of fact, because it is this Court’s responsibility to order the

appropriate discipline. The Florida Bar v. Anderson, 538 So.2d 852 (Fla. 1989).




The Court usually will not second-guess a referee’s recommended discipline as

long as that discipline has a reasonable basis in existing case law and in the

Florida Standards for Imposing Lawyer Sanctions. The Florida Bar v. Temmer,

753 So.2d 555 (Fla. 1999). A three (3) year suspension to be followed by three

(3) years of probation and other conditions was recommended by the referee. The

recommended discipline has no reasonable basis in existing case law and

disbarment is the appropriate sanction.

                     I will maintain the respect due to
                     courts of justice and judicial officers.

                                          Oath of Admission to The Florida Bar
                                          (in part)

                                             22
      David Deutsch’s conduct in corrupting the system is the antithesis of that

which he swore to do. Mr. Deutsch was not content with his thriving traffic

ticket practice in which he admitted to earning between $100,000 and $150,000

a year. (TR 57, 179). In an effort to increase revenue he concocted a scheme

which enabled him to represent traffic offenders who had failed to either pay their

fines or request a trial within a specified time period. He charged Two Hundred

and Fifty Dollars ($250.00) for this service and performed it scores of times.

(TR 26, 29, 46, 181). Using his expertise as an attorney and his cunning, he

filed motions with the clerk’s office in which he falsely accused the clerk of

misplacing his previously and timely filed notices of appearances and failing to

set the matters for trial. Mr. Deutsch attached the alleged notices of appearance.

These documents were falsely created to reflect that they had been filed with the

clerk on a date in the past with a consistent certificate of service date. (TR 5, 22-

23). Mr. Deutsch conspired with an official of the clerk’s office to have these

false documents back dated and stamped with the clerk’s stamp. Mr. Deutsch

honed the scam to precision when he paid the clerk to obtain his own official

stamp so he could backdate documents himself. (TR-5). The Honorable Steven



                                           23
Leifman, the Associate Administrative Judge responsible for the traffic

adjudication system, became suspicious of Mr. Deutsch’s conduct and involved

the State Attorney’s Office and law enforcement. (TR 27-28). Once Mr.

Deutsch’s scheme was uncovered and in an effort to save himself, he wore a

bugging device to obtain additional evidence against his co-conspirator, the

clerk. (TR-189). The clerk was convicted of a felony. Mr. Deutsch was

rewarded by the State for his assistance and pled guilty to four (4) misdemeanors

for falsifying a public record in a violation of F.S.839 (13)(1). (TR-191).

      Mr. Deutsch’s conduct of backdating documents was not an aberration of

otherwise sterling behavior throughout his career. Rather, it is consistent with his

prior conduct of submitting a backdated document in a previous prosecution by

The Florida Bar. Mr. Deutsch was admitted to The Florida Bar in 1989. Not

four (4) years later Mr. Deutsch did the following, among other things, for which

he received a thirty (30) day suspension in 1994.

             During the course of the investigation by The Florida
             Bar, respondent submitted another affidavit dated
             December 14, 1992 signed by the wife stating that she
             had fired her counsel. In fact, the affidavit was
             submitted by respondent to the wife to sign during
             February, 1993.


                                           24
                                                Conditional Guilty Plea and Consent
                                                Judgment for Discipline (Paragraph
                                                4(F)) in The Florida Bar v. Deutsch,
                                                SC83576 (TR 67-69).

       Mr. Deutsch’s lack of respect for the legal system is extensive. Mr.

Deutsch has habitually violated the law by placing gambling bets with “bookies”

since he was fifteen (15) years old. This tawdry behavior bled into Mr.

Deutsch’s law practice when he allowed his law office to operate as a front for an

entire bookmaking operation in the late nineteen nineties (1990's) until its

participants were arrested by the F.B.I. (TR 53-55, 120). In The Florida Bar v.

Levin, 570

So.2d 917 (Fla. 1990), that attorney was disciplined solely for engaging in

illegal gambling. The Court held that attorneys are officers of the court who must

live within, and not flaunt the law.

       John Eustace, M.D., a renowned expert in addictionology, testified that

Mr. Deutsch suffers from a gambling addiction which caused Mr. Deutsch’s

judgment to be impaired. This impairment manifested itself in Mr. Deutsch’s

acts of corruption. (TR-85). By the same token, however, Dr. Eustace could not

say whether Mr. Deutsch would have committed the acts in question, but for the


                                           25
gambling addition. (TR-95). Importantly, Mr. Deutsch was unable to point to a

single lapse of judgment in regard to representing clients, other than his criminal

conspiracy with the clerk. (TR 53,198). Same is borne out by Mr. Deutsch’s

ample earnings of between One Hundred Thousand Dollars ($100,000.00) and

One Hundred Fifty Thousand Dollars ($150,000.00) per year. In The Florida

Bar v. Shuminer, 567 So.2d 432 (Fla. 1990), that lawyer stole monies and

maintained he was drug addicted. Dr. Eustace testified on behalf of Mr.

Shuminer, as he did on behalf of Mr. Deutsch, that addiction was the cause of

that respondent’s disciplinary violations. While disbarring Mr. Shuminer this

Court stated:

                We find this case to be nearly identical to that presented
                in The Florida Bar v. Knowles, 500 So.2d 140 (Fla.



                1986), another instance of misappropriation of trust
                account funds. There, even though Knowles made full
                restitution, had no prior disciplinary record, and had
                successfully completed an alcoholic rehabilitation
                program, we found that disbarment was appropriate.
                We pointed out that during the period when the
                misconduct occurred, Knowles had continued to work
                regularly and his income did not diminish discernibly as
                a result of his alcoholism. So too here, Shuminer has
                failed to establish that his addictions rose to a sufficient

                                               26
             level of impairment to outweigh the seriousness of his
             offenses. He continued to work effectively during the
             period in issue...
                                                     Id. at 432.

      Moreover, Mr. Deutsch appears to have been motivated to commit the

crimes in question because of his frustration with Judge Leifman’s refusal to

routinely grant motions that Mr. Deutsch believed other judges had previously

granted. He testified that he felt his clients deserved to have their cases heard.

(TR 186-197). Thus, Mr. Deutsch’s judgment was impaired by a gambling

addiction yet he acknowledged a knowing basis for his misconduct; that being

his frustration with the system!

      In The Florida Bar v. Salnik, 599 So.2d 101 (Fla. 1992), that attorney

applied a judge’s rubber stamp to two proposed final judgments. The act was

isolated and witnesses attested to its aberrance. Salnik had no prior disciplinary

record, was under severe stress and had heart problems. The Florida Supreme

Court opined as follows:

             The Bar argues that this conduct manifests a
             fundamentally dishonest character and warrants
             disbarment.

             We agree with the Bar that this conduct is very serious.

                                            27
             Salnik’s use of a judge’s stamp to commit a forgery
             evidences a blatant disregard for the integrity of the
             judicial office. Salnik’s conduct cannot be excused by
             his inexperience or stress, nor can it be dismissed as a
             mere isolated lapse in judgment. Not only did Salnik
             forge a judgment when he was unsuccessful in
             obtaining one through proper channels, he then
             compounded his misconduct by sending the fictitious
             judgment to an opposing party in an attempt to
             intimidate them into leaving the premises. He then
             went on to attempt to cover up his guilt by lying to the
             judge when he was confronted with the forgery and by
             trying to disguise his handwriting during the Bar’s
             investigation.

                                                      Id. at 103.

      Mr. Deutsch’s actions were far worse. His transgressions involved the use

of an official of the Clerk of the Court to backdate documents and later to

purchase his own stamp to do so to which he admitted to doing nearly thirty (30)

times, while Judge Leifman testified to scores of times.

      The referee wrongly relied on The Florida Bar v. Klausner, 721 So.2d 720

(Fla. 1998). Rather The Florida Bar v. Cueto, 834 So.2d 152 (Fla. 2002), is

dispositive. The Court recently disbarred an attorney who gave kickbacks to a

Dade County adjustor (Operation Risky Business). In so doing, the Court held:

             In the cases in which disbarment was imposed, this
             Court found that the seriousness of the offense

                                           28
              warranted disbarment despite the presence of mitigating
              factors. [FN4] Most notably, this Court has disbarred
              attorneys when the offenses involved a repeated pattern
              of serious misconduct or “attack[ed] the very core of our
              system of justice.” Rendina, 583 So.2d at 316 (Fla.
              1991); see also Florida Bar v. Nedick, 603 So.2d 502
              (Fla. 1992). The misconduct in the present case
              involves both of those characteristics.

                                                       Id. at 5.

       In Cueto, this Court noted that disbarment was imposed in cases where the

seriousness of the offense warranted disbarment despite the presence of

mitigating factors. Those offenses involved a repeated pattern of misconduct or

“attacked the very core of our system.” Certainly, the fact that a member of The

Florida Bar since 1989 who conspires with a clerk to backdate a falsely created

notice of appearance in an effort to trick the court and then uses an official stamp

to do so himself has attacked the core of the system. Judge Leifman’s testimony

in this regard is instructive.

                      The only thing in an ex-parte motion I can rely
                      on is the lawyer’s word.

                      When I read the document from a lawyer, I
                      expect him to fulfill his oath, enter it
                      honestly. I didn’t question the first 30 or
                      so that he filed.

                                            29
                     I hear – we have hundreds of these a day. If I had
                     to question every motion and the veracity of a
                     lawyer’s truth on these, I couldn’t do my job.

                     To me, it’s one of the worst things a lawyer could
                     do. It’s the most dishonest act. It’s a bold faced
                     lie to the Court.

                                                        (TR-30-31).

Thus, even considering the fact that the referee chose to accept respondent’s

“gambling addiction” as mitigating it is not sufficient to outweigh the seriousness

of the offense.

       Although the referee relied on The Florida Bar v. Klausner, 721 So.2d

720 (Fla. 1998) and concluded it is similar to this case that conclusion was not

reasonable. Klausner, id. did not involve corruption of the legal system.

Deutsch criminally conspired with an official of the clerk of the court. Deutsch

unilaterally determined that both the clerk of the court, Florida Statutes and the

judicial system were superfluous. He would on his own lie about having

previously filed a notice of appearance by fabricating it in the future, accuse the

clerk of the court of losing the notice since a trial was never set, engage in

corruption with a clerk to falsely backdate the notice, trick the presiding judge in



                                            30
order to circumvent the Florida Statues and rules of the court and get paid for

each action. Klausner’s actions of lying to the court and committing perjury,

although criminal and egregious, did not corrupt the system. Klausner’s circle

of unethical behavior did not extend beyond his cases and the court. Klausner

did not have prior discipline. Further, Deutsch’s prior discipline involved,

among other unethical acts, backdating an affidavit to The Florida Bar and lying

to The Florida Bar about not receiving a pleading from an opposing counsel

when that document was found in his file.

          Deutsch’s prior acts of misconduct occurred in 1992, three (3) years after

he was admitted to The Florida Bar. He was disciplined in 1994 with a thirty

(30) day suspension. Apparently, that suspension had no impact on him as not

five (5) years later he engaged in acts of corruption with an official of the clerk’s

office.

          Last, this Court mentioned that the referee in Klausner had attached a chart

of cases where less than disbarment was imposed. In the instant case the referee

also attached a chart. There is not a single case, however, upon which this referee

relied which involves corruption which attacks the core of the system.

          In The Florida Bar v. Karahalis, 789 So.2d 27 (Fla. 2001), that attorney

                                             31
paid a bribe to a congressman to obtain a transfer of his uncle from one federal

prison to another. The court disbarred Karahalis and noted the following:

             Our honored profession is soiled by the conduct which
             has brought Karahalis to this day. If we do not act to
             cleanse the stain from our profession, we would depart
             from our oath and give the citizens of this state cause for
             concern.

                                                     Id. at 29.
      In order to comply with the foregoing edict of this Court David Deutsch

must be disbarred.




                                          32
                                   CONCLUSION

      Based upon the foregoing reasons and citations of authority, The Florida

Bar respectfully submits that the referee’s recommendation of discipline is too

lenient and the respondent should be disbarred.




                                               ____________________________
                                               RANDI KLAYMAN LAZARUS
                                               Bar Counsel
                                               TFB No. 360929
                                               The Florida Bar
                                               444 Brickell Avenue, Suite M-100
                                               Miami, Florida 33131
                                               (305) 377-4445



                                               JOHN F. HARKNESS, JR.
                                               Executive Director
                                               TFB No. 123390
                                               The Florida Bar
                                               651 E. Jefferson Street
                                               Tallahassee, Florida 32399-2300
                                               (850) 561-5600



                                               JOHN ANTHONY BOGGS
                                               Staff Counsel
                                               TFB No. 253847
                                               The Florida Bar
                                               651 E. Jefferson Street
                                               Tallahassee, Florida 32399-2300

                                          33
                                               (850) 561-5600



                           CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that the original and seven copies of The Florida

Bar’s initial brief was sent by regular mail to THOMAS D. HALL, Clerk,

Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-

1927, and a true and correct copy was mailed to respondent’s attorney,

RICHARD BARON, Richard Baron & Associates, 501 NE 1st Ave Ste 201,

Miami, Florida 33132-1960, on this _____ day of May, 2003.




                                               ____________________________
                                               RANDI KLAYMAN LAZARUS
                                               Bar Counsel



    CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN

      I hereby certify that the Brief of The Florida Bar is submitted in 14 point

proportionately spaced Times New Roman font and that the computer disk filed

with this brief has been scanned and found to be free of viruses by Norton

AntiVirus for Windows.




                                          34
_____________________________
                                        RANDI KLAYMAN LAZARUS
                                        Bar Counsel




                                APPENDIX




                                   35
      INDEX TO APPENDIX




A.1         Referee’s Report




              36

				
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