Jacksonville Florida Court Divorce Records

Document Sample
Jacksonville Florida Court Divorce Records Powered By Docstoc
					            IN THE SUPREME COURT OF FLORIDA


THE FLORIDA BAR,

        Complaint,

v.                             CASE NO.: SC06-1948
                               TFB NO. 2006-31,651 (07B)
GREGG ADAM STEINBERG,

        Respondent.




                RESPONDENT’S INITIAL BRIEF




                          ROBERT STUART WILLIS, ESQUIRE
                          Willis, Ferebee & Hutton
                          Florida Bar No.: 153152
                          503 East Monroe Street
                          Jacksonville, Florida 32202
                          (904) 356-0990
                          Attorney for Respondent
                                     TABLE OF CONTENTS


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

TABLE OF CITATIONS ......................................................          ii

SYMBOLS AND REFERENCES .........................................                   v

STATEMENT OF THE FACTS ............................................                1

STATEMENT OF THE CASE ..............................................               14

STANDARD OF REVIEW ...................................................             15

SUMMARY OF THE ARGUMENT .....................................                      16

ARGUMENTS ......................................................................   18

        I. THE FINDING OF AGGRAVATING FACTORS
           “SELFISH MOTIVE” AND “SUBSTANTIAL
           EXPERIENCE IN THE PRACTICE OF LAW
           ARE CLEARLY ERRONEOUS ...........................                       18

        II. REFEREE’S FAILURE TO CONSIDER ALL
            APPLICABLE MITIGATING FACTORS OR TO
            FIND FACTORS THAT WERE PROVEN,
            WAS CLEARLY ERRONEOUS .........................                        25

        III. RECOMMENDED DISCIPLINE LACKS A
             REASONABLE BASIS IN EXISTING CASE LAW 35

CONCLUSION ...................................................................     48

CERTIFICATE OF SERVICE .............................................               49

CERTIFICATION OF FONT SIZE AND STYLE ...............                               49

                                                       i
                               TABLE OF CITATIONS


CASES                                                                   PAGE

Attorney Grievance Commission of Maryland v. Goodman,
      381 Md. 480, 850 A.2d 1157 (2004) .............................   41

Ballantyne v. Ballantyne, 666 So.2d 957 (Fla. 1st DCA 1996) . 34

Florida Bar v. Anderson, 538 So.2d 852, 854 (Fla. 1989) ........ 15

Florida Bar v. Arango, 720 So.2d 248 (Fla. 1998) ..................     40

Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003) .....................   21

Florida Bar v. Bailey, 803 So.2d 683 (Fla. 2001) .................... 21

Florida Bar v. Baker, 810 So.2d 876 (Fla. 2002) ....................    36,37

Florida Bar v. Broome, 932 So.2d 1036, 1043 (Fla. 2006) ....... 24,25,45

Florida Bar v. Condon, 632 So.2d 70 (Fla. 1994) .................... 28

Florida Bar v. Hecker, 475 So.2d 1240, 1242 (Fla. 1985) ......... 15,26

Florida Bar v. Karahalis, 780 So.2d 27, 29 (Fla. 2001) ............. 15,28,35

Florida Bar v. Korones, 752 So.2d 586 (Fla. 2000) ................. 21

Florida Bar v. Kravitz, 694 So.2d 725 (Fla. 1997) ................... 46

Florida Bar v. Massari, 832 So.2d 701 (Fla. 2002) .................     21

Florida Bar v. Rightmyer, 616 So.2d 953 (Fla. 1993) ............. 40,41

Florida Bar v. Roth, 693 So.2d 969 (Fla. 1997) ......................   40

                                              ii
Florida Bar v. Salnik, 599 So.2d 101 (Fla. 1992) ..................... 23,24,38,39,40

Florida Bar v. Stein, 916 So.2d 774 (Fla. 2005) ...................... 46

Florida Bar v. Tauler, 775 So.2d 944, 946 (Fla. 2000) .............. 15,26

Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999) .......... 15

Florida Bar v. Tillman, 682 So.2d 542 (Fla. 1996) .................. 21

Florida Bar v. Varner, 780 So.2d 1 (Fla. 2001) ....................... 23,37

Florida Bar v. Wolis, 783 So.2d 1057 (Fla. 2001) .................... 21

Florida Board of Regents v. Mycon Corporation,
      651 So.2d 149 (Fla. 1st DCA 1995) ............................... 34

In Re Daniel P. Larkin, 48 Cal.3d 236, 768 P.2d 604 (1989) ... 43




STANDARDS

Florida Standards for Imposing Law Sanction 1.2 ..................     9

Florida Standards for Imposing Law Sanctions 2.3 ................      18

Florida Standards for Imposing Law Sanctions 3.0 ................      18,25

Florida Standards for Imposing Law Sanctions 5.1 ................      19

Florida Standards for Imposing Law Sanctions 5.11 ..............       18

Florida Standards for Imposing Law Sanction 5.12 ................      18

Florida Standards for Imposing Law Sanction 5.13 ................      18

                                             iii
Florida Standards for Imposing Law Sanctions 9.32c ............. 27

Florida Standards for Imposing Law Sanctions 9.32e ............. 26

Florida Standards for Imposing Law Sanctions 9.32h ............. 27




                                        iv
             SYMBOLS AND REFERENCES


Resp. Exh.    =   Respondent’s Exhibit from final hearing

FB Exh.       =   The Florida Bar’s Exhibit from final hearing

ROR           =   Report of Referee

T.            =   Transcript of Final Hearing before Referee on
                        February 20, 2007

T.2           =   Transcript of Final Hearing before Referee on
                        March 29, 2007




                          v
                         STATEMENT OF THE FACTS


       The essential facts of this case are relatively simple and straightforward:
       In February of 2004, Mr. Steinberg, a sole practitioner and 14 year member
of the Florida Bar, prepared, signed his name to a Subpoena Duces Tecum for the
Sprint phone records of the Complainant, Mr. Ben Cothren, using a non-existent
style and case number.
       Although Mr. Cothren became aware of this circumstance shortly after it
occurred (T. 25-26) and called The Bar regarding the matter in March of 2004
(T. 29), his Complaint (FB Exh. 1) was not filed until two years later in March of
2006 (T. 29).
       In his response, Mr. Steinberg clearly admitted the misconduct and
recognized “As an attorney, I should not have behaved that way, and my actions
two years ago are absolutely regrettable and inappropriate”. (FB Exh. 2).
       Although the original Complaint included other claims, as the Referee
recognized, The Bar filed its formal Complaint predicated solely upon the issuance
of the subpoena. (T. 24-25)
       The matter initially came on for hearing on February 20, 2007. At the
outset, the Respondent, through trial counsel, advised the Referee of his stipulation
that
Mr. Steinberg had, in fact, issued the subpoena when there was no action for which
the subpoena might have been properly issued. (T. 2-4) In effect, he stipulated to
the factual allegations against him.
       The Bar’s only witness was Mr. Cothren. As more fully developed in later
testimony, Cothren acknowledged that long before Mr. Steinberg’s divorce in
2004, he had been having an affair with Mr. Steinberg’s then wife, Rebecca,




                                          2
including a week-long trip to the Bahamas in 2002 and another trip to St. Martin in
the Carribean approximately in 2003. (T. 41-44)
      Because Mr. Steinberg ultimately filed for divorce in late March 2004
(T. 140-141) and thereby acquired actual subpoena power, Mr. Cothren was also
asked whether he would have objected to the production of those same records that
were obtained by the subpoena at issue. He responded that he would have had no
problem with that production as there was nothing in the records that he was
ashamed of. (T. 45-46) Mr. Cothren also said that this “whole situation” had
caused a great deal of “emotional concern and distress” (T. 38) but, acknowledged
there was no financial injury other than the time he spent to “investigate” why the
records were released. (T. 45)
      Mr. Steinberg testified in his own behalf. He described how he worked his
way through undergraduate school (University of Michigan and the University of
Florida) and law school at the University of Florida. He worked two or three jobs
at a time working extra shifts at Thanksgiving and other holidays. He said of the
practice of law, it is “the highest honor”. “It is what I have worked my whole life
for.” (T. 101-102) He was admitted to The Bar in 1993, was an Assistant State
Attorney through 1997 and thereafter in private practice. He is currently a sole
practitioner handling criminal cases and less-complex personal injury cases.
(T. 82-83)
      In 14 years of practice, he has never had a single Bar Complaint or
professional issue of any kind. (T. 110).
      In his explanation of what happened here, he described his relationship with
his step-daughter. At the time he began his relationship with Rebecca, she had a
20 month old daughter, Amanda. He described his relationship with Amanda,
“She was my daughter”. (T. 102-103)
      When the problems in the marriage began (at approximately the same time


                                            3
as his wife’s affair), Rebecca began to threaten him with the prospect of not seeing
Amanda again. At the time of his testimony, he had not seen Amanda in two
years. (T. 103).
      He described himself as “not thinking” at the time of the violation and
“losing control”. (T. 113) However, by April/May of 2004, he had “accepted
things” and forgave his wife for the affair. He gave her “almost everything” in the
divorce in an unsuccessful effort to “stay daddy to Amanda”. (T. 117) He lost 36
pounds during the time of the divorce. (T2. 21)
      His lawyer in the divorce, Judy Shine, confirmed Mr. Steinberg’s description
of his mental state and motivation for the issuance of the subpoena. When she first
met him, “he was a wreck”, difficult to carry on a conversation with, “irrational”
and looked like he had not slept for days. (T. 131) Indeed, her agreement to
represent him was conditioned on his willingness to get psychological help as he
did with Dr. Sherri DeRish, Ph.D. (T. 133-134)
      His main goal in the divorce was custody or visitation of Amanda. With
Shine’s 27 years of experience in family law, she had “never seen a man love a
child that much” (T. 134) and “I have never seen such a good father”.. (T. 138) In
all of her experience, he was “at the top of my list” as being “upset”. (T. 137)
      Unfortunately, as a matter of law, the goal of custody or visitation was
unattainable because he was not the biological father and he had been unable to
adopt the child. (T. 135) Despite what Ms. Shine characterized as Rebecca
“jerk[ing] him around” (T. 138), he was willing to give up everything to get that
done. (T. 133)
      Mr. Steinberg told Ms. Shine of the subpoena early in the representation and
characterized his act as “he did something terribly stupid”. (T. 141) She explained
further “I think he wanted to make sure there was nothing he could do”.. (T. 142)
He had been begging his wife to reconcile and could not understand why that could


                                          4
not happen. The information of the affair gave him the answer. (T. 142)
       Ms. Shine said he needed to know that he had done everything in his power
because “he was overridden with guilt ... because this girl was losing her father and
she really cared for him”. (T. 143)
       Ms. Shine also said that the telephone records could have been obtained
otherwise through an online service that she had successfully used before. (T. 137)
Another witness, Circuit Judge John Alexander, also said these same records
would “normally” been obtainable in the divorce action. (T. 62)
       Of course, he has since confirmed his suspicion that his wife was having an
affair, including his wife’s trips with Mr. Cothren to the Bahamas in 2002 and
St. Martin in 2003. (T. 103-104)
       After finding a receipt for jewelry that Mr. Cothren had purchased for
Rebecca, Mr. Steinberg confronted his wife and she gave conflicting explanations.
(T. 104). It was then that he issued the subpoena for Mr. Cothren’s phone records.
He had his wife’s records because her phone was on his account. “If there were
40 phone calls on a page, 35 were between her and Mr. Cothren.” (T. 104-107)
       He explained the purpose of the subpoena to the Referee. He had known the
exact dates of her trips to the Bahamas and St. Martin and knew cell phones do not
work out of the country. As Mr. Cothren’s records would ultimately confirm, he
wanted to see if Mr. Cothren’s phone was off during the same time period. (T.
107)
       He described how his wife had “taunted” and “dared him” to get the records
because there would be nothing there. (T. 107-108) Shortly after that, he issued
the subpoena, learned the contents, and within three to four weeks filed for
divorce.
(T. 107-108)
       The subpoenaed records were never used nor were they given to Steinberg’s


                                         5
divorce lawyer or otherwise exposed publically. (T. 108) Of course, he fully
cooperated with The Bar including forwarding a copy of the subpoena since it was
never filed or otherwise recorded in the public record. (T. 109) On his own
volition, he found and attended The Bar’s Practice and Professionalism Course.
(T. 111)
      Because word of his misconduct has spread in the St. Augustine legal
community, he finds himself embarrassed and humiliated because he is “not a liar”
and “follows the rules”.. (T. 110) The evidence is undisputed that the subpoena at
issue here is the one and only improper act he had done in the practice of law.
(T2. 25-26)


      Circuit Judge Alexander, Circuit Judge Wendy Berger, County Court Judge
Charles Tinlin and former State Attorney John Alexander all testified on
Mr. Steinberg’s behalf.
      Judge Alexander has known Mr. Steinberg since the early to mid 1990's and
tried cases against him, had Mr. Steinberg try cases before him, and also presided
in his divorce. (T. 57)
      Judge Alexander described him as a “straight-forward person” without any
professional issues (T. 59) and who enjoyed an excellent reputation both in and out
of the practice of law. He had never heard an “ill word” about Mr. Steinberg in his
many years on the bench. (T2. 13)
      Judge Alexander described this period of Mr. Steinberg’s divorce as a “crazy
period” when the foundations of your life are shaken and you do things you would
not ordinarily do, attorneys included. (T. 60) Mr. Steinberg was “very distraught
... He loved his wife’s daughter very much ... He was very distraught over that”.
(T. 70)
      As with the other witnesses, the Referee declined to hear Judge Alexander’s


                                         6
specific recommendation as to discipline and left the room so that it might be
proffered:

                   Well, I’ve been a referee before on Bar complaints,
             and I’ve been a witness on Bar complaints involving
             St. Augustine lawyers.

                    Fraud is very serious, and I think Mr. Steinberg
             takes it seriously, and I think if we look at the snapshot of
             the window of time, it’s occurred during the crazy period
             amount [sic].

                    The two worst things you can do is steal from your
             clients or practice during a disability. None of that
             happened here. Now, fraud is very serious. It’s a nasty,
             you know, five-letter word.

                    It’s also fraudulent to claim more on your income
             tax than what you should have, whether it’s one dollar or
             $100 or $1,000, but I think when you look at it in
             perspective here, if you looked at it like a church term,
             mortal sin versus a venial, even though its couched
             “fraud”, it’s more venial.

                    He was entitled to the information, as I understand
             it. Stupidly, he wrote a bogus subpoena with a bogus
             case number, and I think he should be punished, and I
             think he recognizes that, but I think either a private
             reprimand or a public reprimand would be in order in this
             case, and I think he recognizes that.
                    I’m concerned about suspensions of individuals
             who have not had a pattern of engaging in unethical
             conduct because the taint is so great it effectively puts an
             attorney handling personal injury cases out of business.

                    For ten days – if you get a 10-day suspension, as a
             lawyer, and you’re a prosecutor, it doesn’t hurt your
             practice necessarily, unless the State Attorney decides to
             fire you; but if you’re in a personal injury case and


                                          7
             you’ve got to notify every one of those clients of a 30- or
             90-day suspension, at least those that are more serious, a
             30 or 90, those are really a death knell to a private
             practice. 1
             (T. 66-67)

      Circuit Judge Wendy Berger began her legal career as an Assistant State
Attorney for eight years followed by four years service as an Assistant General
Counsel to Governor Jeb Bush before assuming the bench. (T2. 5)
      Judge Berger has known Mr. Steinberg since 1994 or 1995 (T2. 6) and
characterized him as having an excellent reputation among his colleagues. (T2. 7-
8) In his appearances before her, he has done “a fine job”, “always prepared” and
conducted himself as she “would expect all lawyers to conduct themselves”. (T2.
8)
      About his relationship with Amanda, she said “he loved that little girl like
his own child”. (T2. 8) “I mean, anytime she did anything, it was like, I’ve got to
tell you about what Amanda did”. (T2. 9)
      The Referee again declined to hear any specific recommendation as to
discipline by Judge Berger. (T2. 6-10)
      Judge Charles Tinlin with 16 years on the County Court bench has known
Mr. Steinberg since 1994-1995. Mr. Steinberg was a prosecutor in his court.
During the time that he has known Mr. Steinberg, he has never had a reason to
question his professionalism. (T. 72-73). He also performed Mr. Steinberg’s
wedding to Rebecca. (T. 73)
      Judge Tinlin said that Mr. Steinberg always was well prepared and very
professional in court, he had never doubted his word and, in fact, recalled instances
             1
              It is recognized that a private reprimand is no longer available
             under the Rules Regulating The Florida Bar. Fla. Stds. Imposing
             Law Sancs. 1.2
where Mr. Steinberg had provided case authority to him that was contrary to
Mr. Steinberg’s position. (T. 75)
          Judge Tinlin also noted Mr. Steinberg’s love for Amanda. She referred to
him as “daddy” and he referred to her as his daughter. Mr. Steinberg’s biggest
concern was that he would no longer be able to see Amanda since he had no “legal
claims” to her. (T. 74-75)
          Mr. Steinberg had also told Judge Tinlin about the subpoena. Mr. Steinberg
told Judge Tinlin what he did was wrong and he was taking full responsibility for
it. In this vein, Judge Tinlin was asked about Mr. Steinberg’s expression of
remorse. He said that the remorse was genuine and not just because he had been
caught. “It was really out of character because when he told me that, I was very
surprised because I had always found him to be extremely ethical, honest, and
straightforward, and I knew it was something that he had really struggled with and
felt very badly about.” (T. 76-77)


          Judge Tinlin also opined that this [subpoena] was an “anomaly” and “would
never happen again”. He concluded “I think he’s remorseful. I think he’s a great
lawyer and I have no question about his ethics or professionalism in any matter.”
(T. 78)
          Again, the Referee declined to hear Judge Tinlin’s specific recommendation
as to discipline which was proffered after she left the room. He recommended a
“private reprimand”. (T. 81)2
          Of note, Judge Tinlin had been given the option of appearing by deposition


2
    See, Footnote 1, ante, Page 9
but specifically chose to travel from St. Augustine to testify in person “I wanted
Judge Cole to hear from me”. (T. 73)
      James Steven Alexander was admitted to practice in 1979, was a former
Assistant State Attorney and State Attorney for the Seventh Circuit and is now in
private practice in St. Augustine. He came to know Mr. Steinberg in 1993 when he
hired him as an Assistant State Attorney. (T. 119-120)
      He, too, described Mr. Steinberg as a “good lawyer” with no professional
issues and well regarded by the judges. (T. 121)


      Mr. Alexander became a aware of the problems in the Steinberg marriage in
March of 2004 and also knew that Mr. Steinberg loved Amanda very much.
(T. 122-123)
      Mr. Alexander also said that even during the time of these problems,
Mr. Steinberg maintained his professional bearing in the courtroom. But, he also
spoke of talking with him at six or seven o’clock in the evening “he’d be crying on
the phone with me or crying in person. When he cried, I would start to cry, just
like I’m doing right now ... It was really, really ripping him apart.” (T. 126)
      Mr. Alexander described himself as a “bit of a mentor” to Mr. Steinberg as
he frequently came to him for advice. Thus, they stay in frequent contact. (T. 122)
From that relationship, he knew of Mr. Steinberg’s great love for his daughter and
the troubles in the marriage. Indeed, he said that if the child had not existed, this
would have been a regular divorce like any other. (T. 124)
      At the conclusion of the initial hearing on February 20, 2007, The Bar
recommended a sanction of a 91 day suspension. (T. 162)
      Following the initial hearing, the court informally advised the parties of her
intention to find Mr. Steinberg in violation of specific disciplinary rules whereupon
a further hearing was scheduled for additional evidence of aggravating or
mitigating factors. (ROR 4)
      At that hearing on March 29, 2007, The Bar called no additional witnesses.
Mr. Steinberg called Circuit Judge Wendy Berger, whose testimony has previously
been reported herein. He also recalled Judge John Alexander and Charles Tinlin,
whose testimony at the second hearing has previously been incorporated into this
Statement of Facts.
      Of interest, at the time of concluding arguments, counsel advised the court
“The Bar has asked for a 90 day [suspension]”. (T. 54)
                         STATEMENT OF THE CASE


      On October 4, 2006, The Bar filed its formal Complaint and hearings were
held on February 20, 2007, and March 29, 2007. The Referee executed her report
on April 24, 2007, recommending that Mr. Steinberg be disciplined by suspension
for 91 days from the practice of law, that he be required to undergo a psychiatric
evaluation and successfully complete any mental health treatment recommended
by the evaluation and pay the costs incurred by The Florida Bar. Mr. Steinberg
filed his PETITION FOR REVIEW on June 20, 2007, and contests the Referee’s
findings with regard to aggravating circumstances, mitigating circumstances, and
the discipline to be imposed. Although the original Petition included the question
of whether or not the Respondent should be found guilty, that issue will not be
included in the scope of this appeal.
                            STANDARD OF REVIEW


      The Court has held that “a referee’s findings as to the existence of a
particular mitigator is considered a factual determination and is presumed correct
and will be upheld unless clearly erroneous or lacking in evidentiary support”.
Florida Bar v. Tauler, 775 So.2d 944, 946 (Fla. 2000) [quoting Florida Bar v.
Hecker, 475 So.2d 1240, 1242 (Fla. 1985)]
      It is well established that “[i]n reviewing a Referee’s recommendation of
discipline, [the] Court’s scope of review is somewhat broader than that afforded to
findings of facts because, ultimately, it is [the Court’s] responsibility to order an
appropriate punishment.” Florida Bar v. Karahalis, 780 So.2d 27, 29 (Fla. 2001)
[quoting Florida Bar v. Anderson, 538 So.2d 852, 854 (Fla. 1989)] However, the
“Court will not second-guess a Referee’s recommended discipline as long as that
discipline has a reasonable basis in existing case law.” Karahalis at 29 [quoting
Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999)]
                       SUMMARY OF THE ARGUMENT


      The essential fact of Respondent’s issuance of a subpoena in a non-existent
case for the phone records of his wife’s paramour has been neither disputed nor
denied. Rather, the issues here focus on the erroneous finding of two aggravating
circumstances, the failure to consider and find a clearly applicable mitigating
factor and the failure to find other factors which were clearly proven, and, finally,
that the recommended discipline is not supported by existing case authority.
      Here, the Referee found two aggravating factors: “selfish motive” and
“substantial experience in the practice of law”. The finding of “selfish motive” is
not supported by the Record nor does it find a basis in existing law. The finding
regarding “substantial experience in the practice of law” is factually accurate.
However, inferences drawn from that finding are factually inaccurate. More
importantly, the aggravating factor of “substantial experience” is irrelevant under
our circumstances. Experienced lawyers are no less vulnerable to the basic human
context in which the misconduct arose.
      Also, the Referee clearly erred by failing to find or even consider the
mitigating factor of “full and free disclosure to disciplinary board or cooperative
attitude towards proceedings”. Although the evidence was clear and unambiguous
in support of that issue, it was not considered. Similarly, the Referee rejected the
mitigating factor of “remorse” where there was no record evidence for doing so.
Rather, the Referee based that rejection on general notions or observations. The
Referee observed, for example, that other lawyers had gone through emotional
divorces without committing misconduct. By a similar method, the Referee found
“limited mitigation” despite the clear and consistent evidence of Respondent’s
personal and emotional problems – mental disability or impairment.
      Finally, the recommended discipline of a 91 day rehabilitative suspension,
probation with psychological evaluation and treatment as recommended, is not
supported in existing case authority. The cases upon which the Referee relied are
easily and clearly distinguishable from the facts established by this Record. Cases
provided by Respondent support a discipline substantially less severe than that
recommended here.
                                        ARGUMENT


             I. THE FINDING OF AGGRAVATING FACTORS
         “SELFISH MOTIVE” AND “SUBSTANTIAL EXPERIENCE
        IN THE PRACTICE OF LAW” ARE CLEARLY ERRONEOUS



       In his initial response to The Bar inquiry, his answer to the formal
Complaint and his stipulation and testimony at the hearing below, Mr. Steinberg
fully admitted both his action and the wrongful nature of that action. Although
fully admitting his misconduct, he must nonetheless take issue with the
characterization of that misconduct and the imposition of the Referee’s severe
sanction of a 91 day suspension which requires that he thereafter apply for
readmission and provide proof of rehabilitation. Fla. Stds. Imposing Law Sancs.
2.3
       Although the Referee made no reference to any particular Standard, the facts
would suggest the application of Standard of 5.12 or Standard 5.13. 3 Standard 5.13:
“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.” Of course, these Standards, are ... generally appropriate ...

absent aggravating and mitigating circumstances, and upon application of the
factors set out in Standard 3.0 ...
Fla. Stds. Imposing Law Sancs. 5.1
       While he concedes that the Referee may have properly imposed suspension

3
 Standard 5.12: “Suspension is appropriate when a lawyer may have engaged in criminal conduct
which is not included within Standard 5.11 and it seriously adversely reflects on the lawyer’s
fitness to practice law.”
as the sanction based upon her findings as written, he would take issue with those
findings and suggest that a proper evaluation and weighing of the aggravating and
mitigating circumstances, together with relevant case authority, would yield a
sanction substantially less than that recommended.
      Initially, Respondent would respectfully suggest that the Referee clearly
erred in her finding of the two aggravating factors of “selfish motive” (ROR 10)
and “substantial experience in the practice of law” (ROR 10-14).


      A. SELFISH MOTIVE
      The Referee concluded that Respondent’s motive in issuing the subpoena
was a selfish one: “To obtain protected information about Mr. Cothren to enable
Respondent to demonstrate, to himself, his wife, and/or the court in his pending
dissolution of marriage, that his wife was engaged in an extra-marital affair.”
      On its face, that characterization is clearly inaccurate in its finding that the
Respondent intended to share the records with the court “in his impending
dissolution of marriage action”.. All testimony was directly to the contrary, i.e. ,
the uncontradicted testimony was that the records were never intended for use in
the divorce and were not furnished to his divorce lawyer for that purpose. (T. 105,
108-109) Thus, in part, the Referee’s finding is unsupported by the record
evidence.    In fact, early in the representation by his divorce lawyer, Ms. Shine,
he “confessed” to having subpoenaed the records (T. 135) and characterized his
action as having done “something terribly stupid”. (T. 141)
      As to the general finding of “selfish motive”, Ms. Shine established the
context in which the act took place. She said that she “had never seen a man love a
child that much” (T. 134) and “I’ve never seen such a good father”.. (T. 138)
Because Mr. Steinberg was not the biological father and had no legal claim to the
child, it was clear that he could not legally obtain any custody or visitation with the
child. (T. 135)
      Against that background, she explained further “I think he wanted to make
sure there was nothing he could do”.. He was begging his wife to reconcile and
could not understand why that could not happen. Ms. Shine said he needed to be
sure that he had done everything in his power because “he was overridden with
guilt .... because the girl was losing her father and she really cared for him “. (T.
142-143)
      It could probably be argued that any volitional act may be broadly
characterized as “selfish” in the sense that rarely do people do things which were
not in some sense in their own interest. However, here the testimony established
that the issuance of the subpoena was to assure himself that there was no
alternative to the divorce and the consequent loss of contact with the step-daughter
who cared very deeply for him. The act was prompted by his concern for his
daughter’s welfare and only in the broadest sense could it be characterized as
arising from a “selfish motive”.
      These circumstances seemingly stand in stark contrast to those cases that
find or at least discuss “selfish motive” where there is conduct motivated by greed
or desire to secure some personal profit or gain. See, for example, Florida Bar v.
Bailey, 803 So.2d 683 (Fla. 2001); (commingly of funds and theft of client
property); Florida Bar v. Tillman, 682 So.2d 542 (Fla. 1996) (commingly and
misappropriation of client funds); Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003)
(theft of funds from an attorney’s own law firm); Florida Bar v. Massari, 832 So.2d
701 (Fla. 2002) (fraudulently obtaining and misappropriating a client’s settlement
funds); Florida Bar v. Korones, 752 So.2d 586 (Fla. 2000) (conversion of estate
funds by the personal representative); and Florida Bar v. Wolis, 783 So.2d 1057
(Fla. 2001) (false testimony and false reports to the Securities and Exchange
Commission which could have resulted in personal gain).


      In our context, those cases finding “selfish motive” would not support the
finding here. As Ms. Shine, his divorce counsel, testified, “It wasn’t his wife that
he was terribly upset about. It wasn’t the divorce itself. It was ... he would do
anything to stay with his wife and make it work ... it was the loss of the child .
(T. 142)


      B. SUBSTANTIAL EXPERIENCE IN THE PRACTICE OF LAW
      Respondent takes no issue with the basic factual finding that he was
admitted to The Florida Bar in 1993, employed for four years in the State
Attorney’s Office and for 10 years thereafter in private practice. As will be seen,
he does have objection to some of the treatment of those basic facts; and, more
fundamentally, the relevance of this aggravating factor under our circumstances.
      Here, the Referee found that the conduct was “particularly shocking”
because Respondent had been previously employed as an Assistant State
Attorney.(ROR 11) He acknowledged that he had prosecuted “fraud cases” while
employed in that capacity. However, there is no evidence that he prosecuted
anything other than the usual fraud cases involving schemes or artifices to wrongly
deprive persons of money or other valuable property. Mr. Steinberg’s misconduct
involved issuing a false subpoena and involved more of an attempt to deceive, not
an intent to defraud. Florida Bar v. Varner, 780 So.2d 1 (Fla. 2001) (providing
opposing counsel a fictitious Notice of Voluntary Dismissal of the client’s claim
when no lawsuit had, in fact, been filed). This kind of “apples and oranges” does
not support the finding. As repeatedly stated, he issued the subpoena under his
own name in a
non-existent case. That isolated act was stupid, wrongful, and deserving of
discipline but does not compare with the circumstances in Florida Bar v. Salnik,
599 So.2d 101 (Fla. 1992), cited by the Referee. In that case, the Respondent had
attempted unsuccessfully to secure a Final Judgment of eviction. When he went to
the Judge’s office to discuss the problem, he found that both the Judge and the
Judicial Assistant were on vacation. By some means not specified in the opinion,
Salnik secured the Judge’s rubber stamp and applied it to two proposed Final
Judgments, one of which he mailed to the tenants in a plain white envelope. He
also sent the tenants a letter advising them that the eviction proceedings were now
at the stage where the matter would be turned over to the Sheriff who would come
with no advance notice to remove them and their personal property from the
premises.
      When confronted by the trial Judge, Salnik falsely denied complicity. Yet,
in a subsequent handwriting examination, an expert concluded that the writing on
the forged document was Salnik’s. That expert also noted that Salnik had
attempted to disguise his handwriting while providing the sample.
      When The Bar filed its Complaint, Salnik did not admit the violation.
Rather, he and Bar counsel agreed that The Bar would file a Summary Judgment
Motion to which Salnik would not respond, thereby allowing him to be found
guilty without having to make the admission.
      As stated, those circumstances are light years away from those in the case at
bar.
       More fundamentally, Respondent would respectfully suggest that his
experience in the practice of law is essentially irrelevant to our circumstances.
Respondent would rely upon Florida Bar v. Broome, 932 So.2d 1036 (Fla. 2006)
where the court affirmed the finding of guilty on 33 separate rule violations of 18
different Bar rules spanning over a six year period. In that case, The Bar had urged
that the court should include substantial experience in the practice of law among
the aggravating factors. However, the Referee found Broome suffered from
clinical depression and that the depression caused her to engage in the misconduct
found. The court reasoned that since the depression could effect anyone regardless
of experience, Broome’s experience was “irrelevant under these factual
circumstances”. In other words, these acts of misconduct were “not the kinds of
violations more likely to be committed by inexperienced lawyers than seasoned
attorneys, so as to make violations by seasoned attorneys more egregious”.
932 So. 2d at 1042.
       Here, the evidence was abundant, consistent, and essentially unrebutted that
Steinberg’s wrongful action was motivated by his love for his young step-daughter
to whom he had been “daddy” for the years of his marriage. Susceptibility to that
most basic (and laudable) human emotion is unlikely to be affected by substantial
experience in the practice of law.
       Unlike like the “ordinary” or usual divorce situation, Mr. Steinberg had no
“legal claim” to the child and had been directly and repeatedly threatened with the
severance of all communication with his step-daughter. A seasoned lawyer is no
less likely to be affected by such basic human circumstances, prompting an
improper, but aberrant act such as occurred here.
               II. REFEREE’S FAILURE TO CONSIDER ALL
                   APPLICABLE MITIGATING FACTORS
              OR TO FIND FACTORS THAT WERE PROVEN,
                      WAS CLEARLY ERRONEOUS



      Fla. Stds. Imposing Law Sancs. 3.0 requires the consideration of “the duty
violated”, the lawyer’s “mental state”, the “potential or actual injury caused by the
lawyer’s misconduct” and the “existence of aggravating or mitigating factors”.
Here, the Referee failed to find or even consider Mr. Steinberg’s cooperative
attitude towards the proceedings, failed or refused to find “remorse”, and
minimized or trivialized the most significant matter in mitigation, his
“personal/emotional problems or mental disability or impairment”.
      A “Referee’s finding as to the existence of a particular mitigator is
considered a factual determination and is presumed correct and would be upheld
unless clearly erroneous or lacking in evidentiary support”. Florida Bar v. Tauler,
775 So.2d 944, 946 (Fla. 2000) [quoting Florida Bar v. Hecker, 475 So.2d 1240,
1242 (Fla. 1985)] Notwithstanding that deferential standard, it nonetheless appears
that the Referee’s treatment of these factors in mitigation was clearly erroneous.

    A. FULL AND FREE DISCLOSURE TO DISCIPLINARY BOARD OR
COOPERATIVE ATTITUDE TOWARDS PROCEEDINGS.

      Standard 9.32e identifies “full and free disclosure to Disciplinary Board or
cooperative attitude towards proceedings” as an additional mitigating factor.
      Here, Mr. Steinberg offered a timely and initial response to The Bar inquiry.
He followed that by providing a copy of the subject subpoena which had not been
in any court file or other public record. Through counsel, he participated fully in
the grievance process and the subsequent disciplinary hearings. His testimony at
those hearings was credible, candid and fully supported by three sitting Judges, the
former State Attorney for the Seventh Judicial Circuit and his divorce lawyer as to
whom he waived any privilege.
      Under these circumstances, it is clearly erroneous that the Referee failed to
consider and find the existence of that mitigating factor. Accordingly, at a
minimum, this Court should make that finding and recalculate the suggested
discipline with due consideration thereof.

    B. PERSONAL/EMOTIONAL PROBLEMS AND MENTAL
DISABILITY OR IMPAIRMENT

      The Referee combined these two separate factors in mitigation,
personal/emotional problems and mental disability or impairment, for her
discussion. See, Fla. Stds. Imposing Law Sancs. 9.32c and h. She recognized that
it is “indisputable that, at the time of the offense, Respondent was distraught
because of marital conflict and his inability to see his wife’s daughter with whom
he had enjoyed a close relationship”. (ROR 13-14) While the Referee considered
that to be a “mitigating factor”, it further found that “it affords only limited
mitigation” citing to the “numerous attorneys who each year lawfully end their
marriages” and “experience emotional distress, some of it quite significant, yet
refrain[ed] from committing fraud, especially fraud that invokes the authority of
the court”.(ROR 14)
      Although the Referee nominally found the mitigating factor, the conclusion
that it “affords only limited mitigation”, under our circumstances, is more legal
judgment than factual finding. There is no testimony regarding the anonymous
lawyers to whom she referred or compared to Mr. Steinberg’s case. This portion
of the Report of the Referee’s recommendation would seem to be more in the
nature of a general judgment on appropriate punishment, a responsibility that his
Honorable Court has historically reserved for itself. See, Florida Bar v. Karahalis,
(ante).
      Even if we were to assume that other lawyers may have had similar
experiences without misconduct, that does not relegate this factor in mitigation to
“limited” status. Even in matters as serious as misuse of trust account funds, this
court has recognized such emotional problems as substantial evidence of
mitigation even in cases where the extreme sanction of disbarment might otherwise
apply. See, e.g., Florida Bar v. Condon, 632 So.2d 70 (Fla. 1994) (18 months
suspension rather than disbarment owing to mental and emotional problems when
there is no prior disciplinary record and a showing of remorse).
      Respectfully, it appears that the Referee may have confused “mitigation”
with “excuse”. Early in the proceedings she ruled on an objection regarding
circumstances surrounding the issuance of the subpoena and commented: “I mean,
frankly there is limited relevance ... There is some relevance but there is limited
relevance to the circumstances surrounding the issuance of the subpoena because
an officer of The Florida Bar should not be issuing an unauthorized subpoena no
matter the surrounding circumstances, and we all understand that.” (T. 54-55)
      Mr. Steinberg was unambiguous and explicit regarding the purpose of such
evidence. Having been invited to address the court on his misconduct and the
circumstances surrounding it, he first responded as follows:
                   Before I give my answer to this, I want everybody
            to know that I accept full responsibility. I’m not blaming
             anybody else. I’m not blaming the circumstances. I’m
             not saying my ex-wife or Mr. Cothren pushed me to do it.
             I did it and I know it’s my fault.

                   I just want to make sure that whatever I say in the
             next two minutes everybody understands that. I don’t
             want any of my comments to be misinterpreted or
             misconstrued because I’m not pointing the finger of
             blame at anybody but me. ... It’s my responsibility. (T2.
             27-28)

             The Referee also pointed out that there was no testimony that
Respondent was suffering from any “DSM-IV mental health diagnosis” and had
made little effort to obtain or continue the therapy which his divorce lawyer
required him to undertake.
      It is not the finding by the Referee that he had only four visits with the
psychotherapist that is contested here. Rather, it is the assessment of weight to be
given this circumstance that is contested. That conclusion ignores Mr. Steinberg’s
testimony that by April or May of 2004 (after confirming the affair) he had
“accepted things” and forgave his wife for the affair. His focus at that time was on
an unsuccessful effort to “stay daddy to Amanda”.. (T. 117) The conduct at issue
here occurred before he visited with his divorce lawyer and before she required
him to seek psychiatric help. It does not impugn the authenticity of his emotional
distress at the time of his misconduct that he did not continue in psychotherapy
after he reached the point that he had “accepted things”.
      In what is described as a “puzzling contradiction” of his testimony, the
Referee makes extensive reference to a letter allegedly written by the Respondent
on February 6, 2004, and submitted as part of the Florida Bar’s Composite Exhibit
with the Complaint. (FB Exh. 1) After objection, the Referee explicitly ruled that
it had received the exhibit, including the letter, as bearing on the Complainant’s
motivation and “not for the truth of the matter asserted”. Upon that explicit and
restated “understanding”, Respondent’s counsel withdrew his objection. (T. 54-55)
The materials included within the letter were not to be considered for the truth of
the matter asserted and was not the subject of other testimony that would have
served to clarify or explained its contents. Under these circumstances, it was
clearly error to utilize that document to find “limited” mitigation from these
circumstances. Because the letter was not addressed in the proceedings below,
any response here would necessarily and impermissibly rely on non-record
evidence.
       In this case, three different sitting Judges, the former State Attorney for the
Seventh Judicial Circuit, and Respondent’s own divorce lawyer all testified to the
extreme emotional distress that Respondent experienced at the time of this
misconduct. His divorce lawyer said in 20 years of experience in family law she
had “never seen a man love a child that much” (T. 134) and “I had never seen such
a good father”. (T. 138) Thus, the court’s finding of only “limited” mitigation is
not so much a factual determination as it is a legal one that is clearly erroneous and
contrary to law. 4Footnote 6) Respondent would note that other witnesses, notably James
Steven Alexander, former State Attorney, had a similar response when talking about

Respondent’s separation from his step-daughter and Respondent’s reaction thereto. To the

degree that this forms a basis for the Referee’s recommendation of psychiatric evaluation and

successful completion of any mental health treatment which may be recommended by the


4
 In a footnote the court noted that “Respondent would currently benefit from counseling as
evidenced by his testimony that he would think that three years later, it would be easier, but it’s
not. Respondent fought back tears more than once during the proceedings.” (ROR 13,
evaluation, he objects.


       C. REMORSE
       The Court considered but did not find remorse to be a mitigating factor. The
Court concluded that it found “limited credible evidence of sincere remorse” for
essentially three reasons: First, although “witnesses” testified that Respondent told
them there was remorse and Respondent also testified to that effect, all such
statements were made only after the commencement of Bar disciplinary
proceedings, a finding that was factually and legally clearly erroneous.
       Factually, the Respondent’s divorce lawyer, Ms. Shine, testified that early in
her representation of Mr. Steinberg (March of 2004), he told her of the subpoena
“I remember him telling me that he had to tell me some things, that he did
something terribly stupid, and it was pretty early on”. (T. 141) Later, Ms. Shine
was asked about this same subject matter and she responded “Well, I’m sure he
thought it was egregious, yeah”. (T. 144) Those discussions occurred
approximately four years before The Bar’s Complaint.
       As to the other witnesses, three sitting Judges and a former State Attorney
for the Seventh Judicial Circuit, it is correct that expressions of remorse that they
testified to occurred after The Bar proceedings began. It appears that the Referee
simply dismissed that testimony out of hand because it related to events after
initiation of The Bar Complaint. There is no authority for that proposition in any
of the Standards or cases.
       Simply put, there is literally no record basis for dismissing testimony like the
following colloquy with Judge Charles Tinlin:
            Q. ... Did he appear remorseful to you?
             A. He did.

             Q. Not just that he had gotten caught or was in trouble,
             that he genuinely seemed like he knew he had done
             something wrong?

             A. Absolutely, he did. Yeah, and it was really out of
             character for Gregg because he when he told me about it,
             I was very surprised because I had always found him to
             be extremely ethical, honest and straightforward and I
             knew it was something that he had really struggled with
             and felt very badly about it. (T. 76-77)

      The second rationale for finding no “sincere remorse” was that the
Respondent “had not apologized to Mr. Cothren ... and has not apologized to Sprint
...” (ROR 19) While the factual finding that he had not made these apologies is,
indeed, correct, it does not support the conclusion that his remorse was insincere.
Respondent had found that Mr. Cothren had engaged in a three year affair with his
wife including travel out of the country on two separate occasions. And, it is not
altogether clear one would “apologize” to Sprint or what the significance of that
would be. Mr. Steinberg’s rather unremarkable testimony showed that it never
occurred to him to “apologize to Sprint”. (T. 100-101)
      Finally, the Referee construed Mr. Steinberg’s initial response to The Bar as
a “lengthy catalog of his wife’s and Mr. Cothren’s reported misdeeds as if such
misdeeds could justify the actions of the officer of the court in misusing court
process for personal gain”. The response in question is part of the Record
(FB Exh. 1) and available for review by this court. Indeed, it appears that the
normal deference to the Referee should not operate here because the document is a
written one and this court is on equal footing with the Referee in the construction
thereof. Ballantyne v. Ballantyne, 666 So.2d 957 (Fla. 1st DCA 1996); Florida
Board of Regents v. Mycon Corporation, 651 So.2d 149 (Fla. 1st DCA 1995)
      It would be difficult if not impossible to construe Mr. Steinberg’s response
as other than a full statement of his remorse as well as a detailed description of the
surrounding events which would arguably serve to characterize and mitigate his
admitted misconduct. But, it is undeniable that he clearly and unequivocally
accepted responsibility for his misconduct in the initial response as well as his
testimony before the Referee.
      In pertinent part, he wrote:
                    I had the subpoena issued to Sprint because the
             divorce file was not yet open. There is no doubt that it
             was absolutely the incorrect course of conduct, that it
             was completely inappropriate for me to have handled it in
             that manner. That particular subpoena should have been
             issued in the divorce case. I realize that as an attorney,
             I should not have behaved that way, and my actions two
             years ago are absolutely regrettable and inappropriate.
Further,
                    Again, I regret the action I took in March of 2004,
             as I know better than to do something like that. As a
             former Assistant State Attorney in St. Johns County, I’m
             well aware of the proper procedures regarding the
             issuance of a subpoena and am well aware of the rules by
             which all attorneys must abide. I was repeatedly lied to,
             I was dared to do something, accusations were flying
             back and forth, I was in the middle of an emotional
             situation and I embarked on an inappropriate course of
             conduct.5 Nothing like this has ever happened before, nor
             5
               The underlined sentence was the only excerpt cited in the Referee
             Report. It appeared in the context shown above and was at the end
             of three and one-half page description of the events surrounding
             the misconduct. Standing alone, it would not fairly capture the
             nature of the response.
             has it happened since, nor will it ever happen again.

                   I thank you for your time and apologize that you
             have had to proceed with this because of my conduct.


               III. RECOMMENDED DISCIPLINE LACKS A
              REASONABLE BASIS IN EXISTING CASE LAW



      As previously noted, this court’s review is somewhat broader in the matter
of fixing the appropriate punishment, noting, however, that the “court will not
second guess a Referee’s recommended discipline as long as that discipline has a
reasonable basis in existing case law”. Florida Bar v. Karahalis, 780 So.2d at 29.
      Here, the Referee based her recommended discipline on several Florida
cases as well as the authority from Maryland and California. In reference to the
Florida cases, the Referee wrote that [the Steinberg case] “is not the first in Florida
to involve fraudulent documents prepared by attorneys experiencing marital
problems” citing first to Florida Bar v. Baker, 810 So.2d 876 (Fla. 2002).
      Although the misconduct arose in the midst of Baker’s divorce, that fact was
essentially incidental to the misconduct at issue. Baker and his ex-wife owned a
home as tenants by the entirety which became subject to foreclosure prompting
Baker to decide to sell it. In order to accomplish the sale, Baker fraudulently
signed his ex-wife’s name to several legal documents relating to the sale, including
a Warranty Deed, a Power of Attorney, Bill of Sale, and a Foreign Investor and
Real Property Tax Act Affidavit. He authorized his secretary to notarize the
forged signature leading the secretary to believe that his ex-wife had signed the
documents but had forgotten to have her signature notarized.
      The documents were sent to the closing lawyer who was not advised that the
ex-wife’s name was forged and that the documents had been unlawfully notarized.
The home was sold for a net gain of approximately $29,000 and Baker deposited
$20,000 of that in his personal account. The ex-wife had no access to the
deposited funds and had no notice that the home had been sold and the deposit
made. Something less than a year later, the ex-wife learned of the sale of the home
and initiated her Complaint.
      It would seem to require no further discussion to conclude that these facts
have virtually nothing to do with Mr. Steinberg’s position before this court. In the
Referee’s Report, he emphasized that the fraudulent acts were major violations,
including forgeries of legally significant documents (felonies) and that Baker
deceived his ex-wife, caused his secretary to unlawfully notarize those documents,
and caused his closing lawyer to close a real estate deal using those fraudulent
documents. That Report also made brief mention that at the time of the alleged
misconduct, Baker and his ex-wife were involved in a bitter divorce.
      On these facts, which are far more egregious than those in the case at bar,
the Referee recommended disbarment and this court declined to follow that
recommendation. Rather, this court instead suspended Baker for 91 days, the exact
discipline that has been recommended here. Baker would not be authority for this
court to approve the Referee’s recommended discipline in this case.
      The court next cited Florida Bar v. Varner, 780 So.2d 1 (Fla. 2001),
previously cited herein. In that case, the attorney had prepared and submitted to
opposing counsel a fictitious Notice of Voluntary Dismissal. In earlier discussion
with opposing counsel that resulted in settlement, he had mistakenly represented
that an action had been filed. Rather than admit the mistake, he prepared the false
Notice of Voluntary Dismissal.
      The court concluded that the conduct involved an attempt to deceive not an
intent to defraud. Thus, “the fraud cases” offered by The Bar were distinguishable,
a finding which should be made here. Principally based upon its finding of lack of
candor, this Court disapproved the recommended discipline of 30 days suspension
and imposed the suspension of 90 days. Again, that is not authority for the
imposition of the 91 day suspension recommended here.
      The court also cited Florida Bar v. Salnik, 599 So.2d 101 (Fla. 1992). That
case has also been cited and briefly discussed herein at Page 23-24. Although the
Referee described the case as involving a lawyer who was disbarred “fraudulently
stamping two proposed Final Judgments in eviction cases and forwarding one
Judgment to the defendant tenant” that description falls far short of the egregious
misconduct at issue in Salnik.
      Salnik had submitted a proposed Final Judgment to the Judge assigned to the
case and she had refused to sign the Judgment because the file did not show that
both tenants had been served with the Complaint. When Salnik went to the Judge’s
office to discuss the problem, he found that she and her judicial assistant were on
vacation. By means which are not specified in the opinion, he acquired the Judge’s
rubber signature stamp and fraudulently affixed her signature to the proposed Final
Judgments. He then mailed one of the documents to the tenants in a plain envelope
and then sent them a letter advising them that the proceedings were now at a stage
where the matter would be turned over to the Sheriff who could come with no
advance notice to remove them and their personal property from the premises.
That letter also advised that the non-payment of the Judgment for the cost of
eviction would adversely effect the renewal of their drivers licenses.
       When the forgery was discovered by the Judge, she called Salnik to attempt
to clear up the issue. He falsely told her that he had received the Final Judgment in
the mail and had copied it and forwarded it to the tenant. During The Bar
investigation, Salnik provided a handwriting sample. A handwriting expert
concluded that the writing on the forged Judgment was Salnik’s and also noted that
Salnik had attempted to disguise his writing when he gave the sample.
       Further, shortly before final hearing on The Bar Complaint, The Bar and
Salnik agreed that The Bar would file a Motion for Summary Judgment to which
he would not respond and the Referee would grant the motion. By that means,
Salnik would be found guilty as charged in the Complaint without having to make
an admission of guilt.
       In that case, Salnik, like here, presented several character witnesses who
opined that the allegations, if true, were totally out of character for Salnik. There
is also evidence of stress due to the break up of his parents’ marriage and
aggravation of his heart problems.
       That mitigation notwithstanding, it is difficult to conceive of more egregious
circumstances and true fraud on the court coupled with outright lies to the court
and to The Bar. Again, Salnik does not serve as authority for the discipline
recommended here. 6
       The last Florida case was Florida Bar v. Rightmyer, 616 So.2d 953 (Fla.
1993). Although the court noted that Rightmyer was experiencing “severe marital
difficulties” and “alcohol and possible psychological problems”, he was
6
 For comparison, the Referee also cited Florida Bar v. Arango, 720 So.2d 248 (Fla. 1998) and
Florida Bar v. Roth, 693 So.2d 969 (Fla. 1997) (involving, respectively, a 30 day suspension and
a public reprimand. These cases are not discussed because they appear to involve issues
unrelated to those in the case at Bar. They are mentioned here in the interest of completeness.
nonetheless disbarred. However, again his misconduct had nothing in common
with the circumstances here.
      Rightmyer had pled nolo contendere to three counts of perjury arising from
deposition and trial testimony in a mortgage foreclosure suit where he
mischaracterized a $5,000 debt as payment on the balance rather than an interest
payment “which may have been usurious”. He was adjudicated guilty and because
of that arrest, The Bar audited his trust account and found “vast trust account
violations”.
      In our case, there is no perjury, there is no felony adjudication, and there is
no evidence of “vast trust account violations”. In the Report of the Referee, there
is a brief quote lifted from that opinion: “An officer of the court who knowingly
and deliberately seeks to corrupt the legal process can logically be expected to be
excluded from that process”.. (ROR 22) However, the cited portion of the opinion
was comment by the court on the circumstances that were described immediately
before that quote: “We can conceive of no ethical violation more damaging to the
legal profession and process than lying under loath, where perjury strikes at the
very heart of our entire system of justice – the search for the truth”. Florida Bar v.
Rightmyer, 616 So.2d at 955. Those are not the circumstances before this court
and Florida Bar v. Rightmyer, ante, is not authority for the recommended
discipline.
      The Referee also relied on authority from Maryland and California. The
first of these cases were Attorney Grievance Commission of Maryland v.
Goodman,
381 Md. 480, 850 A.2d 1157 (2004). Again, the facts are wholly dissimilar and far
more egregious. The Respondent previously had been law partners with another
individual (Herman) who moved away from Maryland and apparently resided in
Hawaii at the time these circumstances took place. Respondent, an Assistant
Public Defender, was generally prohibited from engaging in the private practice of
law. Because of that circumstance, he filed an action on behalf of the charity with
which he was associated seeking payment for advertising space that had been
purchased from that entity. He filed the original Complaint and a subsequent
Amended Complaint in the name of his former partner, Herman. On both
Complaints, he listed Herman’s name as the attorney for the Plaintiff and his own
name did not appear. He subsequently sent a letter and four subpoenas to the
District Court identifying Herman as the attorney for the Plaintiff accompanied by
a letter on letterhead stationery stating “Law Offices of D. David Herman”.
Respondent acknowledged that he created the letterhead for use in this particular
suit.
        During telephone negotiations with defense counsel, Respondent again
represented himself to be Herman and on the day that case was scheduled for trial,
Respondent pretended to be Herman and negotiated a settlement on the telephone
with defense counsel.
        Later that same day, a message was left for defense counsel stating that
Herman would be unable to attend the trial and Respondent would be there instead
representing the client. When defense counsel met Respondent, he recognized the
voice, called Herman in Hawaii and discovered that Herman was unaware of the
case and had not given permission to use his name.
        When the case was called before the court, Respondent implied that Herman
was the attorney in the case but would not be present. Defense counsel then spoke
with the Judge and told him of his suspicions. When the Judge made inquiry, the
Respondent denied the accusations of defense counsel that he had been
impersonating Herman and further averred that Herman was, indeed, the attorney
of record in the case.
      Under these circumstances, the settlement offer was withdrawn and the case
set for trial at the end of the docket. When the case was called, Respondent did not
appear and the Judge dismissed the case.
      In the court’s analysis, the issuance of the subpoena was but one small part
of the misconduct. The opinion addressed the false statement of the filing of the
Complaint and the Amended Complaint, the misrepresented identity in settlement
discussions over many months with opposing counsel, misleading the court to
believe that he had not been impersonating the other attorney and in his
representations and statements to the presiding Judge, the Respondent made false
statements of material fact.
      Again, the reported facts are so dissimilar that the case from Maryland is not
authority for the discipline that has been recommended here.
      The final case cited by the Referee is In Re Daniel P. Larkin, 48 Cal.3d 236,
768, P.2d 604 (1989). Although the Referee described that case as one that
“mirrors the facts of this case to a remarkable extent ...” (ROR 22), it appears that
the only factual circumstance in common with the case at Bar is that it occurred in
the context of a marital separation where the estranged wife was dating another
man. According to the opinion, following separation after 12 years of marriage, the
wife and their two children continued to live in the house while the Respondent
moved to an apartment. He learned from his son that his estranged wife was dating
another man (David S.) and that he excessively consumed alcohol.
      Respondent acquired the telephone number of David S. from his wife’s
phone bills and used his connections with local law enforcement to locate him and
see if David S. had a criminal record. He reviewed public records in municipal
court regarding a child support case involving the same individual and obtained
personal information about David S. regarding his date of birth, social security
number, resident address, etc. He did cause to have issued a Subpoena Duces
Tecum to obtain the telephone records of David S. and his employer in the context
of the pending dissolution. Unlike the case at Bar, the subpoena indicated that
another lawyer in the Petitioner’s office was the attorney of record. Petitioner later
claimed that he had used that name because he was thinking of having the other
lawyer represent him in the dissolution.
      However, the real point of the grievance began when he enlisted the
assistance (“conspired”) of his client (and co-defendant) to cause David S. to be
assaulted. To further that conspiracy, Respondent provided the personal
information that he had obtained.
      Pursuant to that conspiracy, the client and an unidentified accomplice went
to David S.’s place of employment, instructed him to stop seeing the estranged
wife, and struck him on the chin with a metal flashlight causing him to bleed. As
David S. attempted to stop the bleeding, the two men threatened him and according
to
David S.’s employer, told David S. that if he ever came to the ex-wife’s town
again, he would never walk again.
      The testimony indicated that Respondent had compensated the client by
forgiveness of a $1,000 legal bill that was owed.
      Separately, the Respondent had met with the county marshal to examine
electronic recording equipment and according to the Respondent’s secretary,
discussed how a portion of the equipment was to be used on the separated wife’s
telephone.
      He was subsequently charged and convicted of two counts of conspiracy to
commit assault with a deadly weapon and assault with a deadly weapon. It was on
the basis of those findings that Respondent was suspended.
      Again, that is not authority for discipline recommended here.
      As this court has previously recognized, “not all rule violations are equal”.
Florida Bar v. Broome, 932 So.2d 1036, 1043 (Fla. 2006). Necessarily, therefore,
the matter of discipline is fact specific. Undersigned counsel must concede that he
has been unable to find any cases which are truly factually similar. Nonetheless, he
would offer the following brief resume of cases supporting discipline substantially
less than recommended by the Referee.
      For example, in Florida Bar v. Kravitz, 694 So.2d 725 (Fla. 1997). This
court ultimately imposed a 30 day suspension rather than the recommended one
year probation or the 91 day suspension sought by The Bar. According to the
opinion, the misconduct including presenting false evidence to the court regarding
the identity of a manager of a restaurant he was representing, misrepresenting to
the manager that manager would be arrested if he did not provide $4,000 by a
certain time, misrepresenting to opposing counsel that his trust fund contained
sufficient funds to cover settlement, and perhaps of greater significance,
misrepresenting to the court that opposing counsel did not oppose proposed orders
he submitted to the court vacating an earlier order finding him in contempt.
      More recently, in a factually distinguishable case, the court imposed a 90
day, non-rehabilitative suspension on a lawyer whose actions facilitated a disbarred
New York lawyer unauthorized practice of law in Florida. In Florida Bar v. Stein,
916 So.2d 774 (Fla. 2005), a disbarred New York lawyer met with a client and
offered to probate her mother’s estate in the State of Florida. Unknown to the
client, the Florida lawyer, Stein, actually became the attorney of record. When the
client received and signed the Petition for Administration, the firm shown was that
of the disbarred New York lawyer (with a Florida address) but a signature did not
appear on the document. The disbarred New York lawyer later signed the
Respondent’s name and placed her Florida Bar number on the Petition admittedly
with her consent. When the Respondent was contacted by the client, a verbal
altercation occurred which resulted from Respondent telling the client that she was
only hired to obtain the Letters of Administration and, if she was not paid, she
would have the Letters of Administration revoked. The Respondent also falsely
represented to the client that the disbarred New York lawyer was, in fact, a
practicing attorney. Respondent was subsequently removed as attorney of record
and the clients were forced to hire new counsel to complete the probated estate.
      On these facts, a 90 day suspension, a substantially less serious sanction than
recommended here, was imposed.
                                 CONCLUSION


      Mr. Steinberg respectfully requests this Court to reject the Referee’s
recommendation of a 91 day suspension and probation with the condition that he
undergo psychological evaluation and complete any recommended treatment. A
public reprimand or a lesser term of suspension, with or without probation, is a
severe and appropriate sanction after applying the Standards for Imposing Lawyer
Sanctions and considering court precedent.
      RESPECTFULLY SUBMITTED this 15th day of August, 2007.
                               WILLIS, FEREBEE & HUTTON



                                             ROBERT STUART WILLIS
                                             Florida Bar No.: 153152
                                             503 East Monroe Street
                                             Jacksonville, Florida 32202
                                             (904) 356-0990
                                             Attorney for Respondent
                         CERTIFICATE OF SERVICE


      I HEREBY CERTIFY that the original of the foregoing Respondent’s Initial
Brief has been furnished by overnight delivery and by e-mail electronic submission
via e-file@flcourts.org to Thomas D. Hall, Clerk, Supreme Court of Florida,
500 South Duval Street, Tallahassee, Florida 32399; and a true and correct copy
has been furnished by regular mail delivery to Kenneth Lawrence Marvin, Esquire,
Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida
32399 and Frances R. Brown-Lewis, Esquire, Bar Counsel, The Florida Bar, 1200
Edgewater Drive, Orlando, Florida 32804 on this 15th day of August, 2007.


                                             ROBERT STUART WILLIS

                CERTIFICATE OF FONT SIZE AND STYLE


      Counsel for Respondent, Gregg Steinberg, hereby certifies that the instant
Initial Brief has been prepared in Times New Roman 14-point font.


                                             ROBERT STUART WILLIS

				
DOCUMENT INFO
Description: Jacksonville Florida Court Divorce Records document sample