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									             IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,                )
                                )      Case No. SC00-1521
          Petitioner-Appellant, )
                                )
v.                              )      TFB Case No.
                                )      1998-70,629(17I)
MICHAEL HOWARD WOLF             )
                                )
          Respondent-Appellee.  )
_______________________________ )


              THE FLORIDA BAR’S INITIAL BRIEF

                             ADRIA E. QUINTELA, #897000
                             Bar Counsel
                             The Florida Bar
                             5900 North Andrews Avenue
                             Suite 835
                             Fort Lauderdale, FL 33309
                             (954) 772-2245

                             JOHN ANTHONY BOGGS, #253847
                             Staff Counsel
                             The Florida Bar
                             650 Apalachee Parkway
                             Tallahassee, FL 32399-2300
                             (850) 561-5839

                             JOHN F. HARKNESS, JR., #123390
                             Executive Director
                             The Florida Bar
                             650 Apalachee Parkway
                             Tallahassee, FL 32399-2300
                             (850) 561-5839
                                    TABLE OF CONTENTS

                                                                                                 PAGE(S)

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CASES AND CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, iii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CERTIFICATION OF FONT TYPE, SIZE, STYLE AND ANTI-VIRUS SCAN 1

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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

                I.       A PUBLIC REPRIMAND IS THE
                         APPROPRIATE SANCTION IN THIS
                         CASE PURSUANT TO THE CASE LAW
                         AND THE APPLICABLE STANDARDS
                         FROM THE FLORIDA STANDARDS FOR
                         IMPOSING LAWYER SANCTIONS. . . . . . . . . . . . . . . . . . 6

                II.      THERE    ARE    A    NUMBER     OF
                         MITIGATING    FACTORS IN THE
                         INSTANT CASE THAT WARRANT THE
                         IMPOSITION OF A PUBLIC REPRIMAND
                          .............................................. 8


CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
                                                         i

                            TABLE OF CASES AND CITATIONS

CASES                                                                                                 PAGE(S)

The Florida Bar v. Pascoe,
      526 So.2d 912 (Fla.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The Florida Bar v. Levine,
      498 So.2d 941 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The Florida Bar v. Marks,
      376 So.2d 9 (Fla.1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Florida Bar v. Fields,
      520 So.2d 272 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Florida Bar v. Levin,
      570 So.2d 917 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Florida Bar v. Kirkpartick,
      567 So. 2d 1377 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RULES REGULATING THE FLORIDA BAR

Rule 3-4.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 3-4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 4-8.4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 4-8.4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 4-8.4(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4



                                                         ii
FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS

Standard 5.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Standard 9.32(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Standard 9.32(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Standard 9.32(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Standard 9.32(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Standard 9.32(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                           iii
                                 PRELIMINARY STATEMENT
      The Florida Bar, Appellant, will be referred to as “the bar” or “The Florida

                      olf,
Bar.” Michael Howard W Appellee, will be referred to as “respondent”. The

symbol “RR” will be used to designate the report of referee.



CERTIFICATION OF FONT TYPE, SIZE, STYLE AND ANTI-VIRUS

SCAN

      Undersigned counsel hereby certifies 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.




                                         1
                  STATEMENT OF THE CASE AND FACTS

       Michael Wolf was charged with applying for, receiving, and attempting to use

a fraudulent driver’s license. These charges arose when Mr. Wolf attempted to use a

driver’s license bearing his father’s name, but his picture, at a casino in the Bahamas.

Mr. Wolf was using this license in an effort to procure credit, as he was unable to do

so in his own name. The casino could easily see that the late 40's Michael Wolf was

much too young to be the early 70's Kurt Wolf on the license. This incident and the

arrest which grew out of it resulted in Mr. Wolf being charged criminally, and acted

as a serious wake-up call for Mr. Wolf who was forced to confront his own serious

gambling addiction.

       Following this incident, Mr. Wolf immediately sought professional help with a

psychiatrist, and entered and participated in the Florida Lawyer’s Assistance

(hereinafter “F.L.A.”), Program as well as Gamblers Anonymous. As a result, Mr.

Wolf has continued with these programs throughout the past years. Mr. Wolf’s

addiction is now under control, he has no longer gambled, and he has been able to

right his life.

       Mr. Wolf pled guilty to a series of misdemeanors which were offered to him in

part when Mike Cohen, the Director from F.L.A., met with the State Attorney and

detailed Mr. Wolf’s problem and progress. Mr. Wolf appears to be fully rehabilitated

                                           2
and has continued to practice without complaint since his arrest in the criminal matter.

He was more than willing to continue with his present programs and therapies to

ensure that he will not backslide and to enter into a Consent Judgment with the bar

wherein he pled guilty to these allegations and agreed to a public reprimand with a

number of conditions.

      The bar’s formal complaint in this cause was filed on July 20, 2000.

Respondent subsequently on November 3, 2000 entered into a Consent Judgment.

In the Consent Judgment respondent pled to several allegations. On September 11,

2000, a Report of Referee was entered in which the Referee made findings of facts

consistent with those described above and founds that the respondent has violated R.

Regulating Fla. Bar 3-4.2 [Violation of the Rules of Professional Conduct as adopted

by the rules governing The Florida Bar is a cause for discipline.]; 3-4.3 [The

commission by a lawyer of any act that is unlawful or contrary to honesty and justice,

whether the act is committed in the course of the attorney's relations as an attorney or

otherwise, whether committed within or outside the state of Florida and whether or not

the act is a felony or misdemeanor may constitute a cause for discipline.]; 4-8.4(a) [A

lawyer shall not violate or attempt to violate the Rules of Professional Conduct,

knowingly assist or induce another to do so, or do so through the acts of another.];

4-8.4(b) [A lawyer shall not commit a criminal act that reflect adversely on the lawyer’s

                                           3
honesty, trustworthiness, or fitness as a lawyer in other respects.]; and 4-8.4(c) [A

lawyer shall not engage in conduct involving dishonesty, fraud, deceit or

misrepresentation.]. RR at 4.

      The referee recommended that the respondent receive a public reprimand, that

he be placed on probation for a period of one (1) year, that he continue to attend

regular meetings of Gamblers Anonymous, that he enter into an F.L.A. contract for a

period to be determined by F.L.A., but no less than one (1) year, that he further

continue his current psychological treatment, that he waive confidentiality with F.L.A.

in regard to his F.L.A. rehabilitation contract, and that The Florida Bar be notified

immediately if he breaches any term or condition of his rehabilitation. RR at 5-6.

      In an Order dated December 5, 2000 the Supreme Court of Florida directed the

parties to submit briefs on the suitability of the recommended discipline.




                                          4
                         SUMMARY OF ARGUMENT

      A public reprimand is the only appropriate sanction pursuant to the case law,

the Standards for Imposing Lawyer Sanctions, and the mitigating circumstances

present. Respondent's crime was applying for, receiving, and attempting to use a fake

driver's license. His only reason for doing this was the fact that he suffered from a

gambling addiction and needed to procure credit. When he was caught he took

immediate steps to cure his illness and to pay for what he had done. His crime did not

involve the use of drugs, an arguably more serious offense, as many of the cases do

wherein the court nonetheless, despite the seriousness of the conduct, ordered a public

reprimand.

      Furthermore, there are a number of mitigating factors present which warrant a

lowering of any recommended discipline. Respondent has no prior disciplinary

record. He has been practicing for a number of years with this incident being his only

relapse. He also has been involved in continuing treatment and by all accounts doing

well. Based on all of the factors present, no more than a public reprimand is

warranted.




                                          5
                                    ARGUMENT

      I.     A PUBLIC REPRIMAND IS THE APPROPRIATE
             SANCTION IN THIS CASE PURSUANT TO THE
             CASE LAW AND THE APPLICABLE STANDARDS
             FROM THE FLORIDA STANDARDS FOR
             IMPOSING LAWYER SANCTIONS.

      Pursuant to Standard 5.13, a “public reprimand is appropriate when a lawyer

knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or

misrepresentation, and that adversely reflects on the lawyer’s fitness to practice law.”

Such is the case here. Respondent’s application for a fraudulent driver’s license is an

act of dishonesty, fraud, deceit, or misrepresentation. Said conduct, however, does

not warrant a more than a public reprimand pursuant to the standards and the case law.

      In The Florida Bar v. Pascoe, 526 So.2d 912 (Fla. 1988), David Pascoe pled

nolo contendere to misdemeanor possession of marijuana. He was further found guilty

of making adverse comments against a judge and failing to timely handle a criminal

appeal. The court, despite the severity of the conduct (possession of an illegal

substance), ordered a public reprimand. If that case, which involves the use of an

illegal substance warranted a public reprimand, then the instant case which does not

involve any illegal drugs should not warrant more than a public reprimand.

      Likewise, in The Florida Bar v. Levine, 498 So.2d 941 (Fla. 1986), a public

reprimand was ordered by the Court to Mark Levine for a misdemeanor conviction of

                                           6
personal use of cocaine. If in that case involving the use of hard drugs by a member

of the bar, a public reprimand was warranted, then the instant case, involving arguably

much less severe conduct, should not warrant more.

      A case similar to the instant case in that the respondent committed an illegal act,

but not one involving the use of drugs is, The Florida Bar v. Marks, 376 So.2d 9 (Fla.

1979). In Marks a public reprimand was ordered by the Court to a respondent who

failed to file income tax returns.

      The case law is so overwhelmingly in support of a public reprimand that even

in cases where the respondent has been found guilty of a misdemeanor, the court has

ordered a public reprimand. For example, in The Florida Bar v. Fields, 520 So.2d 272

(Fla. 1988), the respondent was convicted of driving under the influence. He also

charged a usurious interest rate to a client and failed to comply with minimum trust

accounting requirements. Despite the number of violations and the fact that respondent

pled guilty he received a public reprimand.

      A case involving gambling, like in the instant case, is The Florida Bar v. Levin,

570 So.2d 917 (Fla. 1990). In Levin the respondent engaged in illegal gambling,

advocated the same on television as an acceptable recreational activity, and admitted

to intending to continue to gamble. The court ordered a public reprimand despite the

fact there was no remorse shown by respondent as we have in the instant case and

                                           7
despite the fact that the extensive mitigating circumstances which exist in the instant

case were not present in Levin.

       Finally, in The Florida Bar v. Kirkpatrick, 567 So. 2d 1377 (Fla. 1990), the

respondent failed to appear on several occasions following his arrest on a traffic

charge. The court, in that case, ordered a public reprimand.

       In the instant case, like in the ones above, there is no question that the

respondent has engaged in illegal activities. What makes a public reprimand more

justifiable in the instant case than those cases cited above is the fact that in the instant

case there were no drugs or use of drugs involved, the illegal activity occurred solely

because respondent’s addiction to gambling which he has now taken numerous steps

to correct, there are a number of mitigating factors which were not present in the other

cases, and respondent has now rectified his life and has not relapsed.

       II.    THERE ARE A NUMBER OF MITIGATING
              FACTORS IN THE INSTANT CASE THAT
              WARRANT THE IMPOSITION OF A PUBLIC
              REPRIMAND.

       Even if this Court were to find that a harsher sanction is more appropriate there

are a number of mitigating factors present. Under 9.32(a) the Court can consider the

absence of a prior disciplinary record in assessing the appropriate discipline. In the

instant case, although respondent has been practicing law since 1977, he has only


                                             8
received a diversion (which as the court knows is not a disciplinary finding) in 1995

for excessive fees.

      Likewise, under 9.32(i), the Court can also consider unreasonable delay in

disciplinary proceedings as a factor to take into account. The offenses committed by

the respondent occurred more than three (3) years ago. The bar did not institute

disciplinary proceedings due to the fact that the grievance committee investigating this

matter wanted to wait on the outcome of the criminal case before rendering its

decision. This delay is not attributable in any way to the respondent.

      Under 9.32(j) interim rehabilitation can also be considered as a mitigating factor.

In the instant case, Mr. Wolf immediately sought professional help with a psychiatrist

to help with his gambling addiction. He also entered and participated in the F.L.A.

program as well as Gamblers Anonymous. As a result, Mr. Wolf has continued with

these programs for the past three (3) years. His addiction is now under control, he has

no longer gambled, and he has been able to right his life.

      Finally, Mr. Wolf is remorseful of his conduct [9.32(l)], and the remoteness of

any prior offenses (the 1995 diversion) under 9.32(m) should be given consideration

by this Honorable Court. Finally, no harm to any client was done. Based on all of

these mitigating factors, the proper discipline would certainly be a public reprimand.



                                           9
                                   CONCLUSION

      Based upon the Florida Standards for Imposing Lawyers Sanctions, the existing

case law, and the number of mitigating factors present, the only appropriate discipline

is that consented to by the respondent, approved by the Designated Reviewer and the

referee in this matter - a public reprimand.

      WHEREFORE, The Florida Bar respectfully requests this court to enter an

order imposing a public reprimand on the respondent.

                                        Respectfully submitted,



_____________________________________
                             Adria E. Quintela, # 897000
                             Bar Counsel
                             The Florida Bar
                             5900 North Andrews Avenue, Suite 835
                             Fort Lauderdale, FL 33309
                             (954) 772-2245


                          CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the foregoing brief has
been furnished by regular U.S. Mail to Michael Howard Wolf, Esq. c/o Alvin Ernest
Entin, Esq. at Entin & Margules, 200 East Broward Boulevard, Suite #1210, Fort
Lauderdale, Florida 33301-1908 on this ___ day of December, 2000.




                                          10
______________________________
Adria E. Quintela




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