Motions Real Estate Florida by sxi11527

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									                    IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,                 }
                                 }
     Complainant,                }
                                 }
v.                               }    Case No. SC02-1147
                                 }
DANIEL RICHARD VAUGHEN           }
                                 }
     Respondent,                      }
                                 }




                       RESPONDENT'S INITIAL BRIEF




                                                  DANIEL R. VAUGHEN
                                                           In Pro Persona
                                                            P.O. Box 364
                                                  DeLand, FL 32721-0364
                                                          (386) 734-8914
                                                     Fla. Bar No. 083486
                   TABLE OF CONTENTS

TABLE OF CONTENTS
     ii
TABLE OF CITATIONS
     iii
STATEMENT OF THE CASE
     1
STATEMENT OF FACTS
     3
     The Estate Proceedings
     3
     The Bar Proceedings
     11
SUMMARY OF ARGUMENT
     18
POINT ONE
     19
THE REFEREE'S RECOMMENDATIONS THAT RESPONDENT BE FOUND
GUILTY OF VIOLATING ATTORNEY/CLIENT CONFLICT AND OTHER
RULES ARE CLEARLY ERRONEOUS AND WITHOUT EVIDENTIARY
SUPPORT
     19
POINT TWO
     35
THE REFEREE ERRED BY FAILING TO GRANT RESPONDENT'S
PRETRIAL MOTIONS TO STRIKE, TO DISMISS, OR FOR MORE
DEFINITE STATEMENT, AND FOR SUMMARY JUDGMENT
     35
     MOTION TO STRIKE AND TO DISMISS
     35
     MOTION FOR SUMMARY JUDGMENT
     36
POINT THREE
     39
THE REFEREE ERRED BY GRANTING COMPLAINANT'S MOTION TO
WAIVE DEFENSES AND DENYING RESPONDENT'S MOTION TO

                            ii
COMPEL DISCOVERY
     39
POINT FOUR
     42
THE TOTALITY OF THE REFEREE'S RULINGS AND CONDUCT
DEPRIVED RESPONDENT OF A FAIR HEARING IN VIOLATION OF HIS
RIGHT TO DUE PROCESS UNDER THE FLORIDA AND UNITED STATES
CONSTITUTIONS.
     42
CONCLUSION
     46
CERTIFICATE OF SERVICE
     47
CERTIFICATE OF COMPLIANCE
     47




                             iii
                            TABLE OF CITATIONS

Cases

Bay Colony Office Building Joint Venture v. Wachovia Mortgage Company,
342 So.2d 1005 (Fla. 4th DCA 1977)
       40
Beckler v. Hoffman, 550 So.2d 68 (Fla. 5th DCA 1989)
       35
Carter v. Cessna Finance Corporation, 498 So.2d 1319 (Fla. 4th DCA 1986)
       37
Chaiken v. Lewis, 754 So.2d 118 (Fla. 3rd DCA 2000)
       31
First Union National Bank of Florida v. Ruiz, 785 So.2d 589 (Fla. 5th DCA
2001) 37
In re Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA 1990)
       29, 30, 33
In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968)
       21, 36
Johnson v. Davis, 449 So.2d 344 (Fla. 3rd DCA 1984)
       22
Kaplan v. Cowan Liebowitz & Latman, P.C., 832 So.2d 138 (Fla . 3rd DCA
2002) 31
Matter of Estate of Larson, 103 Wash.2d 517, 694 P.2d 1051 (1985)
       30
Morgan v. Continental Casualty Company, 382 So.2d 351 (Fla. 3d DCA 1980)
       37
Orbe v. Orbe, 651 So.2d 1295 (Fla. 5th DCA 1995)
       37
Sherman v. Weintraub, 132 So.2d 421 (Fla. 3d DCA 1961)
       37
State v. Lahurd, 632 So.2d 1101 (Fla. 4th DCA 1994), rev. den. 639 So.2d 978
(Fla. 1994)
       26
Steinway v. Bolden, 185 Mich. App. 234, 460 N.W. 2d 306 (Mich. App. 1990)
       32

                                       iv
Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. App. 3d 1983)
      37
The Florida Bar v. Brown, 790 So.2d 1081 (Fla. 2001)
      27, 31
The Florida Bar v. Clement, 662 So.2d 690 (Fla. 1995)
      37
The Florida Bar v. Junkin, 89 So.2d 481 (Fla. 1956)
      20
The Florida Bar v. Mogil, 763 So.2d 303 (Fla. 2000)
      36
The Florida Bar v. Quick, 279 So.2d 4 (Fla. 1973)
      19
The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970)
      19, 20, 44
The Florida Bar v. Schonbrun, 257 So.2d 6 (Fla. 1971)
      19, 20
Williams v. State, 711 So.2d 41 (Fla. 1st DCA 1998)
      26
Windle v. Sebold, 241 So.2d 165 (Fla. 4th DCA 1970)
      40

Statutes

§733.540(9), Fla. Stats. (2002)
      31
§733.619(4), Fla. Stats. (2002)
      31
§733.702(4), Fla. Stats. (2002)
      31
§733.702, Fla. Stats. (2002)
      31
§733.705(3), Fla. Stats. (2002)
      31
§733.710, Fla. Stats. (2002)
      31



                                        v
Other Authorities

Op. Att'y Gen. Fla. 95-40 (1995)
      37

Rules
Canon 3B7, Code of Judicial Conduct
      45
Fla. Prob. R. 5.120(a)
      31
Fla. Prob. R. 5.320
      31
Fla. Prob. R. 5.430
      31
Fla. Prob. R. 5.440
      31
Fla. R. App. P. 9.210(a)(2)
      47
Fla. R. Civ. P. 1.110(b)(2)
      35
Fla. R. Civ. P. 1.140(h)(1)
      39
Fla. R. Civ. P. 1.510(c)
      36, 37
Fla. R. Civ. P.1.370
      40
Fla. R. Jud. Admin 2.085(e)(1)(D)
      28
Preamble, Rules of Professional Conduct
      26, 29, 33
Rule 3-7.6(g)(1)(B), Rules of Discipline
      35
Rule 3-7.6(k)(1)(A), Rules of Discipline
      19
Rule 3-7.6, Rules of Discipline
      23

                                       vi
Rule 4-1.13, Rules of Professional Conduct
      18, 27, 31, 34
Rule 4-1.6(c)(1), Rules of Professional Conduct
      23
Rule 4-1.6(c)(2), Rules of Professional Conduct
      23
Rule 4-1.7(b), Rules of Professional Conduct
      21, 24
Rule 4-1.8(a), Rules of Professional Conduct
      23
Rule 4-1.8(b), Rules of Professional Conduct
      24
Rule 4-1.8, Rules of Professional Conduct
      19, 25
Rule 4-1.9 Rules of Professional Conduct
      19, 25
Rule 4-1.9(a), Rules of Professional Conduct
      24, 25
Rule 4-1.9(b), Rules of Professional Conduct
      24
Rule 4-3.4(d), Rules of Professional Conduct.
      41
Rule 4-8.4(a), Rules of Professional Conduct
      24, 25
Rule 4-8.4(d), Rules of Professional Conduct
      24, 25




                                        vii
                           STATEMENT OF THE CASE

      A Florida Bar Inquiry/Complaint Form purportedly signed by Helen Morton

on August 3, 2001, was received by The Florida Bar on August 7, 2001. Notice of

Finding Of Probable Cause was served on February 4, 2002. The Florida Bar

Complaint was served on May 17, 2002. A Referee, The Honorable James A. Ruth,

County Judge, was appointed on June 19, 2002.

      Motions and Answer To Complaint were served on June 7, 2002. A Motion

For Summary Judgment was served July 12, 2002. A hearing on all of

Respondent's pending motions was held on August 12, 2002. An Order denying

Respondent's Motion For Summary Judgment was rendered September 3, 2002.

Respondent's motions directed to the complaint were denied on November 22,

2002, by Order rendered February 12, 2003.

      Respondent served a motion to compel discovery on January 10, 2003. That

motion was denied on February 12, 2003. Respondent served a Petition For

Certiorari to the Florida Supreme Court on March 6, 2003, seeking review of the

Orders denying Respondent's motions to compel discovery and Respondent's

motions directed to the complaint. Respondent's Petition For Certiorari was denied

by the Florida Supreme Court on March 12, 2003, "without prejudice to raise all


                                          1
issues in an appeal of the Referee's Report."

      Final Hearing began on March 12, 2003, and continued on March 20, 2003.

The Referee's Report was rendered on March 24, 2003. Respondent's Petition For

Review was timely served on May 19, 2003.

      Record citations will be made using the following abbreviations: for a

transcript of a hearing: [TR, p. __, 3/12/03]; for depositions [Dep. of ____, p.

___]; for Respondent's Sworn Statement of Facts, dated January 23, 2002,

containing numbered paragraphs: [SS, par___]; for Respondent's Affidavit of July

11, 2002: [AFF DRV P. ____]; for the Affidavit of Anthony I. Provitola, dated

March 11, 2003: [AFF AIP, p. __]; for the Affidavit of Donald E. Hawkins, dated

March 10, 2003, [AFF DEH, p. ____]; for the Affidavit of Michael A. Pyle, dated

July 2, 2002: [AFF MAP, p. ___]; for the Affidavit of Margaret Whitwell, dated

January 17, 2003: [AFF MW]; Exhibits attached to The Florida Bar's Exhibit A in

evidence: [TFB EXH A TAB___]; Exhibits adding context to documents contained

in The Florida Bar's Exhibit A: [DRV SUPP TFB TAB __]; Exhibits not contained

in, but adding context to documents contained in The Florida Bar's Exhibit A:

[DRV SUPP DRV TAB ___]




                                           2
                               STATEMENT OF FACTS
                                          1.
                                The Estate Proceedings


       The facts in this case are undisputed. Respondent was originally asked by

Illinois attorney Keith Foster to assist his client Helen Morton in the transfer of title

to some lots in DeLeon Springs, Florida, then owned by her recently deceased

husband, Russell Morton. Mr. Foster's initial letter, dated April 8, 1998, reported

that there were 20 lots with a value of between $4,000 and $6,000 each. He reported

that the balance of the decedent's assets in Illinois required no probate because they

were jointly held. [SS, par. 1; TFB EXH A, TAB 1].

       The existence of jointly-held assets in Illinois at the time of decedent's death

was later confirmed by Margaret Whitwell, Chief, County Assessment Office,

DeKalb County, Illinois. [AFF MW]

       Mr. Foster advised Respondent that Helen Morton was elderly, that her

affairs were being managed by her son, Dennis Morton, and that Respondent was

to communicate with Mr. Foster regarding the Estate. Dennis Morton instructed

Respondent to communicate with Helen Morton only through him, Dennis Morton.

Dennis Morton stated that he would communicate with Mr. Foster, if necessary.

[SS, par. 3] [DRV SUPP DRV TAB 8A].


                                             3
      Communication with Dennis Morton and with Mr. Foster regarding the

Estate, the number and value of the lots, and a real estate contract for the sale of

those lots, was very slow, incomplete, and often conflicting. Respondent's repeated

requests for information concerning Russell Morton's gross estate for federal estate

tax purposes were ignored. [SS, par. 4]

      On August 2, 1999, Dennis Morton wrote Respondent an angry email

protesting the fees Respondent was charging for the time spent and work

performed to that point. [TFB TAB 17] On August 3, 1999, Mr. Foster wrote an

email to Dennis Morton reassuring him that the Respondent's charges for fees were

reasonable. [TFB TAB 19][SS, par. 8]

      Respondent requested and received a letter, purportedly signed by Helen

Morton on August 26, 1999, confirming her agreement that the payment of

additional attorney's fees of up to $1,000 could be deducted from the closing

proceeds of the sale of the lots. [TFB TAB 23-24, DRV SUPP TFB TAB 25; SS,

par.10]

      A title search on the Estate lots by Attorney's Title Insurance Fund disclosed

a forty-year gap in the chain of title to the estate lots. [SS, par. 11, 12; AFF MAP,

p. 4-5]

      Respondent wrote a letter to Mr. Foster, dated September 30, 1999,

                                            4
explaining in detail what had to be done, and why, and estimating the fees necessary

to accomplish that work. Because of Dennis Morton's prior complaints about the

attorneys fees already incurred, and the agreed fee cap, Respondent requested a

new fee agreement with a refundable advance deposit for fees. [TFB TAB 30].

       With regard to Respondent's letter of September 30, 1999, Board Certified

Real Estate attorney Michael A. Pyle stated in an affidavit admitted into evidence

that in his opinion:

•      The facts and conclusions in that letter were reasonable.
•      There is no evidence that Respondent was attempting to take advantage of
       his client or making any statement that was untrue in any way.
•      The fact that another insurer insured the title is completely irrelevant in the
       determination of whether Respondent's opinion was reasonable.
•      The title was defective, and curative action of some type was logically
       required.
•      The title defect was not merely a minor defect; a quiet title suit based on
       adverse possession was not an unnecessary action. [AFF MAP, p. 6]

       No one responded to Respondent's letter of September 30, 1999. Instead,

on November 10, 1999, the purchaser of the lots called Respondent to ask that its

escrow deposit be delivered to Coast To Coast Title Services for a closing

scheduled that day. Subsequent emails exchanged by Respondent with Mr. Foster,

and telephone calls by Respondent to Coast to Coast Title Services, and Mr.

Floyd, yielded conflicting reports of the events and of the roles of those parties in

those events. [SS, par. 18, 26; DRV SUPP TFB TAB 34; Dep. Of Romines, p. 10;

                                             5
Dep. Of Lane, p. 7, 12-13; Dep. Of Floyd, p. 8, 15, 17, 18, 20-22, 24-25; DRV

AFF (attached letter]

       The refusal of Helen Morton, Dennis Morton, and Keith Foster to provide

Respondent with information required to complete the Preliminary Notice and

Report; their filing, with the assistance of another attorney, of a false Preliminary

Notice and Report that included no joint assets; their effort to cut off the potential

claims of third party record title holders, and to bypass Respondent's objections to

all of these efforts; together with the false statements made by the title company to

Bruce W. Floyd, raised Respondent's concern that there might indeed have been

significant jointly held assets that either Helen Morton, Dennis Morton, or Keith

Foster were unwilling to disclose for some potentially unlawful motive, such as

evasion of federal or state estate taxes. [SS, par. 21].

       Respondent had never spoken with Helen Morton. He did not know how

much about these matters she either knew or understood. [SS, par. 22].

Respondent immediately notified the closing agent, Coast To Coast Title Services,

by fax, that a title defect had been reported by Attorney's Title Insurance Fund.

Disclosure of the title defect to Coast To Coast Title Services prior to closing

resulted in title insurance coverage for that defect. [Deposition of Romines, pp. 16-

19; SS, par. 23].

                                             6
       After Coast To Coast Title Services "insured over" the title defect and

closed the transaction, they forwarded the closing proceeds to Mr. Foster, in

violation of Helen Morton's written agreement. [DRV SUPP TFB TAB 36; TFB

45]

       On November 22, 1999, Mr. Foster instructed Respondent to take no further

action in the Estate. He advised Respondent that substitute local counsel would

complete the administration of the Estate. [TFB TAB 46]

On July 28, 2000, eight months after the last correspondence from Mr. Foster,

Respondent petitioned the Circuit Court for an order requiring Helen Morton to

return a portion of the closing proceeds to Florida; for authorization, if the Estate

funds were not returned, to disburse the funds in Respondent's trust account to

pay the appraiser's fee, and to apply the balance of those funds to accumulated

attorney's fees; and for authorization to file suit against Coast To Coast Title

Services for conversion of Estate assets. [SS, par. 31, Exhibits attached to Dep of

Judge Doyle]

       A copy of that petition was sent to Helen Morton by certified mail, return

receipt requested. Helen Morton did not respond to that petition.

       At a hearing on December 20, 2000, notice of which had been sent to Helen

Morton by the court, [Dep of Judge Doyle, p. 29] someone representing herself to

                                            7
be Helen Morton appeared by telephone. Judge Doyle orally instructed that person

to return a portion of the Estate funds, in order to avoid future litigation. [SS, par.

32]. Judge Doyle then signed an Order of Surcharge, [Dep. Of Judge Doyle, p. 31]

a copy of which was mailed to Helen Morton by the court's judicial assistant.

[Exhibits attached to Dep. Of Judge Doyle]

       Judge Doyle saw nothing unethical in the process surrounding Respondent's

Petition For Surcharge. [Dep. Of Judge Doyle, p. 42] He testified that by its terms,

his Order gave Respondent "full authority to proceed on behalf of the estate."

[Dep. Of Judge Doyle, p. 47]

       Respondent filed a complaint against Coast To Coast Title Services on

February 5, 2001. [TFB TAB 52] Because Helen Morton, as personal

representative of the Estate, was an indispensable party to any action brought by

the Estate against Coast To Coast Title Services, and because Helen Morton's

interest was clearly adverse to that of the Estate in that action, , she was made a

party defendant. Respondent's procedural conclusions were confirmed by AV

rated attorney Anthony I. Provitola, [AFF AIP, p. 4].

       Respondent accepted service of process on behalf of Helen Morton, as

personal representative of the Estate, as her designated registered agent for service

of process. Respondent then sent that process to Helen Morton by certified mail.

                                             8
[SS, par. 37]

      Because Helen Morton, as personal representative, was acting in conflict with

the Estate, Respondent also filed a petition to remove her as personal

representative. As required by the Florida Probate Rules, formal notice of that

petition was sent to Helen Morton by certified mail. [SS, par 38, 39]

      The process and petitions were all sent by certified mail, return receipt

requested on February 5, 2001. The return receipt for all of those documents was

purportedly signed by Helen Morton on February 9, 2001.

      Because there were no assets in the Estate's possession, and because

Respondent was the only person subject to the jurisdiction of the Court with any

interest in completing the administration of the Estate, and because of Respondent's

obligation to the Court, as an officer of the Court, Respondent volunteered against

his pecuniary interest to be appointed by the Court as personal representative of the

Estate. [SS, par. 40-41]. Judge Doyle appointed Respondent as personal

representative of the Estate on March 19, 2001. [Exhibits attached to Dep. Of

Judge Doyle]

      Helen Morton did not respond to the process in the civil action or to the

petition for her removal as personal representative, or to the petition to appoint

Respondent as substitute personal representative.

                                            9
       Respondent, as personal representative of the Estate, then moved for

defaults against Coast to Coast and against Helen Morton in the civil action. A

default was entered by the clerk against Coast To Coast, but was not entered by

the clerk against Helen Morton because of the non-standard service of process.

[SS, par. 42]

       Approximately six months after receiving notice of the pending civil action,

and of the probate petitions, Helen Morton purportedly signed a Florida Bar

Inquiry/Complaint form on August 3, 2001. It was filed with the Florida Bar on

August 6, 2001. [TFB TAB 61]

       On August 24, 2001, Respondent wrote the letter required by The Florida

Bar to Helen Morton responding to her complaint. That letter enclosed a copy of

the notice of the pending hearing on the motions for default. [TFB TAB 62]. Helen

Morton did not respond to that letter or to the pending motions for default in the

civil case.

       On October 17, 2001, Judge Sanders set aside the default against Coast To

Coast Title Services, but granted the default against Helen Morton as personal

representative. Judge Sanders refused to grant a default against Helen Morton

individually, however, because she had not been named individually in the

complaint. Instead, he granted Respondent's ore tenus motion to file an amended

                                          10
complaint naming Helen Morton individually. [TFB TAB 63]

      Respondent filed an Amended Complaint in the civil action naming Helen

Morton as an individual defendant, and dropping her as a party defendant in her

representative capacity, since she was no longer personal representative of the

Estate. [TFB TAB 64] Helen Morton was then personally served in Illinois under

the long arm statute. [TFB TAB 67] Helen Morton did not respond to the

Amended Complaint. [SS, par. 45] Judge Sanders entered a default against Helen

Morton individually on February 21, 2002. [Attachments to AFF DRV; TFB TAB

71]

                                        2.
                                The Bar Proceedings


      An Inquiry/Complaint form purportedly signed by Helen Morton on August

3, 2001, was filed with the Florida Bar on August 6, 2001. [TFB TAB 61] On

January 23, 2002, Respondent filed a sworn statement for the Grievance

Committee. [SS, pp 1-8] Respondent was not given the opportunity to appear

personally before the Grievance Committee. The Florida Bar Complaint was served

on May 17, 2002.

      Motions directed to the Complaint were served on June 7, 2002, and denied

on November 22, 2002 [TR, p. 23, 11/22/03], by Order rendered February 12,

                                          11
2003.

        A Motion For Summary Judgment was served July 12, 2002. Complainant's

Motion To Waive Defenses and Objections and Reply To Respondent's Motion

For Summary Judgment were served on July 22, 2002.

An Order granting Complainant's Motion To Waive Defenses and Objections and

denying Respondent's Motion For Summary Judgment was rendered September 3,

2002.

        Respondent's motion for clarification or rehearing, and to compel discovery

was served on January 10, 2003. An Order granting Respondent's motion for

rehearing and thereafter re-granting [without clarifying] Complainant's "Motion To

Waive Defenses and Objections" and denying Respondent's motions to compel

discovery, was entered and rendered on February 12, 2003 [TR, p. 38-41, 2/12/03].

        On March 6, 2003, Respondent served a Petition For Certiorari to the

Florida Supreme Court, seeking review of the Orders granting and re-granting

Complainant's "Motion To Waive Defenses and Objections," and denying

Respondent's motions to compel discovery and Respondent's motions directed to

the Complaint. Respondent's Petition For Certiorari was denied by the Florida

Supreme Court on March 12, 2003, "without prejudice to raise all issues in an

appeal of the Referee's Report."

                                           12
       At the Final Hearing, on March 12, 2003, Bar Counsel first read from

comprehensive memoranda of law and facts, [TFB EXH A, B, TR, p. 11-54,

3/12/03]. Bar Counsel then moved Bar Composite Exhibits A and B into evidence.

[TR, p. 55, 3/12/03].

       Respondent moved on due process grounds for a continuance of the Final

Hearing in order to prepare a response to this first explanation of Complainant's

theory of the case.[TR, p. 55-57, 3/12/03]. The Referee denied Respondent's

motion for continuance. [TR, p. 62, 3/12/03].

       Respondent's requested an opportunity to respond to Complainant's

Composite Exhibit B. The Referee denied that request and admitted it into evidence

over objection. [TR, p. 176, 3/20/03].

       Respondent objected to the composite introduction of Bar Exhibit A into

evidence. [TR, p. 66, 3/12/03]. The Referee offered to allow Respondent to object

to individual documents, [TR, p. 67, 3/12/03] requiring him to present any

objections he may have to those exhibits after the lunch break. [TR, p. 138-139,

145]

       After the lunch break, Respondent objected to the Bar's Exhibit A as being

incomplete, one-sided, and compiled out of context. The Referee admitted the

Bar's Exhibit A into evidence over Respondent's objection and directed

                                          13
Respondent to provide a supplement including any omitted documents tabbed to

correspond to the Bar's tab numbers "the sooner the better" after the hearing. [TR,

p. 147-149, 176, 209-210, 3/12/03].

      During Respondent's presentation, the Referee repeatedly interrupted and

cross-examined him. [TR, p. 112-138, 03/12/03; TR, p. 33-35, 3/20/03].

Respondent's Composite Exhibit No. 1, consisting of the Affidavit of Anthony I.

Provitola, the Affidavit of Donald E. Hawkins, the Affidavit of Margaret Whitwell,

Respondent's Sworn Statement in Response To Subject of Vote Allegations,

Affidavit of Daniel Richard Vaughen, dated July 11, 2002, with attachments, and

the Affidavit of Michael Pyle, dated July 2, 2002, with attachment, was admitted

into evidence. [TR, p. 151, 3/12/03]. The deposition of Honorable John V. Doyle,

with all attachments, taken February 19, 2003, was admitted into evidence as

Respondent's Composite Exhibit 2. [TR, p. 157, 3/12/03]. The depositions of

Elizabeth (Sissy) Romines, taken February 21, 2003, Karen Bland Lane, taken

February 21, 2003, and Bruce W. Floyd, taken February 21, 2003, together with all

attachments to those depositions were admitted as Respondent's Exhibits 3, 4, and

5, respectively. [TR, p. 173-4, 3/12/03].

Respondent twice objected specifically to Tab 61 of Bar Composite Exhibit A, the

Inquiry/Complaint form purportedly signed by Helen Morton. Respondent's

                                            14
objection was twice overruled. [TR, p. 168, 176, 03/2/03].

      At the beginning of the continuation of the Final Hearing, on March 20, 2003,

the Referee announced that he had found in favor of the Bar on all allegations of

facts and rule violations. [TR, p. 4, 7-8 3/20/03] The Referee then asked for the

Bar's recommendations about discipline, and whether there had been any settlement

offers. [TR, p. 4-6, 3/20/03]

       Asked if that was his final ruling on guilt or innocence, the Referee

expressed a willingness to listen to any additional information "that you think would

sway me, or whatever,..."[TR, p.8-10, 3/20/03] Respondent then agreed to present

three waiting character witnesses out of order, [TR, p. 11, 3/20/03] reserving the

right to personally testify on mitigation after the Referee had made a final decision

on guilt or innocence. [TR, p. 12, 3/20/03]

      The Referee said he was impressed by the testimony of Richard Thomas

Rintz, [TR, p. 13, 3/20/03], Dr. T. Wayne Bailey, [TR, p. 17, 3/20/03] and William

Carder Hall, [TR, p. 21, 3/20/03] to the effect that Respondent was of good

character, with a good reputation. He did not refer to their testimony in his Final

Report.

      Notwithstanding the Referee's denial of Respondent's oral request at the first

hearing to respond to Complainant's Exhibit B Trial Memorandum, [TR, p. 176,

                                           15
3/12/03] Respondent filed a written motion for leave to reply to that memorandum.

[TR, p. 25, 3/20/03] The Referee did not rule on that motion.

In response to Respondent's further presentation, Bar Counsel read excerpts from

Judge Doyle's deposition. Based on those excerpts, she represented to the Referee:

"So there is no presumptive duty to close this estate as an officer of the

court."[TR, p. 65, 3/20/03]

      In response to the Referee's inquiry about her recommended discipline in this

case, Bar Counsel stated that the recommendation of the Board of Governors was

a public reprimand, but added that was not her personal recommendation. She then

refused to disclose her personal recommendation, stating that it was irrelevant; she

was "just creating a record." [TR, p. 69, 3/20/03]

The Referee inquired about settlement negotiations. He was informed, without

objection, that Orlando Bar Counsel and Respondent had agreed that the Bar

Complaint against Respondent would be dismissed with prejudice, both parties to

bear their own costs. That agreement, however, was rejected by Staff Counsel in

Tallahassee. [TR, p. 70-71, 3/20/03]

      The Referee refused to admit into evidence the Affidavit of Anthony I.

Provitola, confirming those facts, and refused to permit Respondent to proffer that

affidavit. [TR, p. 79, 3/20/03] At Respondent's request, however, the court reporter

                                           16
attached the Affidavit of Anthony I. Provitola regarding those settlement

negotiations to the transcript of the continued Final Hearing.

Respondent's attempts to introduce evidence in mitigation were repeatedly

interrupted and ignored. [TR, p. 74-77, 81-2, 3/20/03].

      Bar Counsel admitted that Complainant had obtained no expert opinions

from attorneys experienced in real estate law or probate law concerning its

allegations of misconduct in this case, relying instead solely on its own

interpretation of the disciplinary rules. [TR, p. 83, 3/20/03] Bar counsel presented

no witnesses or affidavits during either hearing.

      At the end of the second hearing, the Referee said:

             "I understand what you're saying. I'll make a decision. I'm just
      asking, before I leave here, are you in a position to negotiate
      considering The Bar has used up a great deal of resources, woman-
      power, time, energy, money, court reporting fees, and so on and so
      forth?
             "You would have to take into consideration you're not in as
      strong a bargaining position as you were in initially, is there a scenario
      that you can work it out at this point?"

      The Referee then went off the record without concluding the second hearing,

and without giving Respondent an opportunity to complete his presentation on

mitigation. [TR, p. 84, 3/20/03]

      The Final Report of the Referee, dated March 24, 2003, found Respondent


                                           17
guilty of specified Rule violations and recommended a public reprimand to be

administered by the Board of Governors of The Florida Bar.

      The referee's Final Report made no reference to a single issue, argument,

witness, or affidavit presented by the Respondent.




                                         18
                             SUMMARY OF ARGUMENT

       The first point will demonstrate that the Referee's recommendations that

Respondent be found guilty of violating specified rules are clearly erroneous and

without evidentiary support. The evidence is not "clear and convincing" and the

findings of fact bear no relationship to the findings of guilt.

       The first point will also demonstrate the error underlying the Complainant's

basic premise that "[i]n Florida, the personal representative is the client, rather than

the estate or the beneficiaries." That assertion in The Florida Bar's Comment to

Rule 4-1.7, Rules of Professional Conduct is without support in Florida law, and

conflicts with the Comments to analogous Rule 4-1.13, Rules of Professional

Conduct.

       The second point will demonstrate the Referee's error in failing to grant

Respondent's motions directed to the complaint, and for summary judgment.

       The third point will demonstrate the Referee's error in granting Complainant's

"Motion To Waive Defenses and Objections," and in failing to grant Respondent's

motions to compel discovery.

       Finally, the fourth point will demonstrate how the totality of the conduct of

the Referee in this case deprived Respondent of due process of law under the

Florida and United States Constitutions.

                                             19
                                     ARGUMENT
                                     POINT ONE

      THE REFEREE'S RECOMMENDATIONS THAT
      RESPONDENT BE FOUND GUILTY OF VIOLATING
      ATTORNEY/CLIENT CONFLICT AND OTHER RULES ARE
      CLEARLY ERRONEOUS AND WITHOUT EVIDENTIARY
      SUPPORT


      Without finding that any of the facts alleged had been established by "clear

and convincing evidence," the quantum of proof required by The Florida Bar v.

Rayman, 238 So.2d 594 (Fla. 1970); The Florida Bar v. Schonbrun, 257 So.2d

6 (Fla. 1971); and The Florida Bar v. Quick, 279 So.2d 4 (Fla. 1973), and

without "a finding of fact as to each item of misconduct of which Respondent is

charged," as required by Rule 3-7.6(k)(1)(A), of the Rules of Discipline, the

Referee recommended that Respondent be found guilty of violating a shotgun list

of eleven of the Rules of Professional Conduct.

      Because the primary thrust of Complainant's presentation at the Final Hearing

dealt with attorney/client conflict, and because the Referee expressed concern at the

Final Hearing about "conflict," [TR, p. 45, 3/20/03], only those Rules addressing

attorney/client conflict [Rules 4-1.7, 4-1.8, and 4-1.9 Rules of Professional

Conduct] will be discussed in this Point.



                                            20
       The space limitations of this brief prevent a Rule-by-Rule discussion of the

lack of evidentiary support for each finding of a rule violation. The deficiencies in

each of the eighteen rule violations alleged in the Complaint were addressed in

Respondent's motion for summary judgment, the subject of Point Two. Those

deficiencies remain. They are not abandoned, but are instead incorporated by

reference.

       In The Florida Bar v. Junkin, 89 So.2d 481 (Fla. 1956), this Court held

that evasive and inconclusive testimony from the complaining witness was an

insufficient basis for disciplinary action.

       In The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970) this Court

quoted with approval from an opinion that a charge of unprofessional conduct

must be sustained by more than the testimony of just one witness.

The prosecution in the instant case rests upon the uncorroborated

Inquiry/Complaint form purportedly signed by Helen Morton, without testimony or

affidavit.

       In The Florida Bar v. Schonbrun, 257 So.2d 6 (Fla. 1971), This Court

said the evidence was not "clear and convincing" where the testimony of expert

witnesses was in conflict.

       In the instant case, the opinion of the experts was not in conflict: it

                                              21
unequivocally supported Respondent's conduct. No expert testimony to the

contrary was offered by Complainant.

      Compare: In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117

(1968)("a federal court may not deprive an attorney of the opportunity to practice

his profession on the basis of a determination after the fact that conduct is unethical

if responsible attorneys would differ in appraising the propriety of that

conduct.")(Ops. Of White and Marshall, JJ) [Emphasis Supplied]

      It is impossible to determine from the Referee's Final Report upon which

facts the Referee relied in recommending his findings of guilt.

      The Referee recommended that Respondent be found guilty of violating Rule

4-1.7(b) "for representing a client when the lawyer's exercise of independent

professional judgment in the representation of that client was materially limited by

the lawyer's own interest." The only personal "interest" Respondent had during his

representation of the personal representative of the Estate of Russell Morton was in

being paid a reasonable fee for his services. If an attorney violates Rule 4-1.7(b) by

representing a personal representative while expecting to be paid for his services in

that representation, then personal representatives must henceforth find attorneys

who are willing to represent them without charge. There is accordingly no factual

basis whatsoever for finding Respondent guilty of violating Rule 4-1.7(b).

                                           22
       The Referee also recommended that Respondent be found guilty of violating

Rules 4-1.8(b) and 4-1.9(b) "for using information related to representation of a

client [or former client] to the disadvantage of the client [or former client]." Again,

it is impossible to determine from the Referee's Final Report upon which facts the

Referee relied in making that recommendation.

       The only finding expressly related to that allegation is that Respondent

disclosed to Coast To Coast Title Services that there was a title defect in the Estate

lots being sold by the personal representative.

       Respondent's disclosure of that title defect, however, operated to the

advantage not to the disadvantage, of the personal representative. Known title

defects must be disclosed to a title insurer. Otherwise, title insurance will not

provide coverage for those defects. Respondent's disclosure of that title defect to

Coast To Coast Title Services, therefore, resulted in obtaining title insurance

coverage for that title defect from Coast To Coast Title Services [Dep. of

Romines, p. 17-19], thus protecting the personal representative, the Estate, and the

purchaser of those lots from a variety of potential liabilities. See also: Johnson v.

Davis, 449 So.2d 344 (Fla. 3rd DCA 1984)(where the seller of a used home knows

of facts materially affecting the value or desirability of the property which are not

readily observable and are not known to the buyer, the seller is under a duty to

                                            23
disclose them to the buyer). The disclosure of that information was therefore

expressly authorized by Rule 4-1.6(c)(1), Rules of Professional Conduct.

      The Referee found that Respondent filed a civil action against the personal

representative, accepted service of process on behalf of the personal

representative, moved to have the personal representative removed as personal

representative, was himself appointed to serve as personal representative, and

sought defaults in that civil action against the former personal representative.

      While the Referee did not expressly relate those factual findings to his

recommendation that Respondent be found guilty of violating Rules 4-1.8(a) and 4-

1.9(b), those findings may have contributed to that recommendation.

      The Referee, however, failed to address any of the issues presented by

Respondent relevant to those findings, as required by this Court's comment to Rule

3-7.6, Rules of Discipline: "The referee's report should list and address each issue

in the case and cite to available authority for the referee's recommendations

concerning guilt and discipline."

      All of the actions described in those factual findings were taken under the

authority and by the direction of the court. The disclosures incident to those

actions were therefore expressly authorized by Rule 4-1.6(c)(1) and (2), Rules of

Professional Conduct.

                                           24
       There was no other recommended finding of fact that Respondent used

information relating to the representation to the disadvantage of his client. There is

accordingly no factual basis whatsoever for finding Respondent guilty of violating

Rules 4-1.8(b) and 4-1.9(b).

       It is impossible to determine from the Referee's Final Report upon which

facts the Referee relied in recommending a finding of guilt of violations of Rule 4-

8.4(a) or Rule 4-8.4(d).

       In view of the Referee's expressed concern for "conflict" [TR, p. 45,

3/20/03], however, the Referee may be recommending a finding of guilt for violating

of Rule 4-8.4(a) or Rule 4-8.4(d)because he concluded that Respondent had

violated Rule 4-1.7 or Rule 4-1.9(a).

       Complainant argued at Final Hearing that Respondent had violated Rule 4-1.7

[TFB Exhibit B], even though the Complaint made no such allegation [The

grievance committee found probable cause for - and the Complaint alleged - only a

violation of Rule 4-1.7(b)].

       The Complaint did allege that Respondent violated Rule 4-1.9(a) "for

representing another person in the same or a substantially related matter in which

that person's interests are materially adverse to the interests of a former client."

However, the Final Report of the Referee did not recommend that Respondent be

                                            25
found guilty of violating either Rule 4-1.7 or Rule 4-1.9(a).

      In sum, there is no legal or factual basis for a finding of guilt of violating any

of the Rules of Professional Regulation that address conflicts [Rules 4-1.7, 4-1-8,

4-1.9, Rules of Professional Conduct].

      Out of an abundance of caution, however, Respondent is constrained to

address the conflict issue further because of its prominence during the Final

Hearings in this case, and because of its subliminal inclusion in the Referee's

recommendations that Respondent be found guilty of violating Rules 4-8.4(a) and

4-8.4(d), Rules of Professional Conduct.

      Respondent was employed as attorney for the personal representative of the

Estate of Russell Morton in Florida. [TFB TABS 1-3] Respondent did not at any

time represent Helen Morton, individually. Helen Morton, as an individual, was

represented by Illinois attorney, Keith Foster.

      When Helen Morton, as personal representative, obtained possession of all

of the Florida assets of the Estate as a result of the subterfuge and

misrepresentations of her agents, she breached her contract with the Respondent.

[DRV SUPP TAB 25] When Helen Morton, as personal representative, willfully

refused a court order to return a portion of the Florida assets of the Estate, Helen

Morton breached her fiduciary obligation to the Estate, to its creditors, and to the

                                           26
court, and committed a crime. State v. Lahurd, 632 So.2d 1101 (Fla. 4th DCA

1994), rev. den. 639 So.2d 978 (Fla. 1994); Williams v. State, 711 So.2d 41 (Fla.

1st DCA 1998)(dictum).

       Complainant argued that Respondent's actions in this Estate violated its

unsupported Comment to Rule 4-1.7: "In Florida, the personal representative is the

client rather than the estate or the beneficiaries."

       The Preamble to the Rules of Professional Conduct states:

       ...
       The comments are intended only as guides to interpretation, whereas
       the text of each rule is authoritative. Thus, comments, even when they
       use the term "should," do not add obligations to the rules but merely
       provide guidance for practicing in compliance with the rules.


       Reasoning from its unsupported Comment, Complainant argues that

Respondent was required: (a) to keep silent about the title defect in the Estate's real

estate transaction, (b) to keep silent about the personal representative's false tax

return filed with the Department of Revenue, (c) to accept without complaint or

response the personal representative's breach of Respondent's fee agreement, (d)

to return to the personal representative upon demand the escrow deposit from the

estate's real estate transaction, the last Florida asset remaining in the jurisdiction of

the court, (e) to fail to pay the Estate's creditors (including himself), (f) to withdraw


                                             27
from any further representation of the Estate or its creditors, and (g) to ignore his

obligation to assist the probate court in the orderly closing of the Estate.

       If Respondent had done what Complainant argues that he was ethically

required to do, and if a later investigation happened to uncover a major tax evasion,

or elder abuse, or if litigation were to be commenced against the personal

representative by the purchaser of the Estate lots, or by the former record title

holders of the Estate lots, arising out of the undisclosed title defects, Respondent

would be exposed to criminal prosecution for aiding and abetting a felony, or for

failing to protect an elderly client he had reason to believe might be a victim, or to

civil liability for failing to protect the personal representative from claims arising out

of the real estate transaction, or to disciplinary prosecution by Complainant for

incompetence, or for failing to fulfill his obligation to the estate or to the court as an

officer of the court. See: The Florida Bar v. Brown, 790 So.2d 1081 (Fla.

2001)(attorney who represented corporation prosecuted for not reporting to

corporation that President was engaged in illegal political campaign contribution

scheme.)

       Complainant's unsupported comment clearly does not help a Florida lawyer

make an ethical decision under the circumstances of this case. Under that comment,

the hapless Florida attorney is "damned if he does and damned if he doesn't," a

                                             28
fact expressly acknowledged by Bar Counsel. [TR, p. 44 11/22/02] Compare Rule

4-1.13 and its Comment: ". . . In an extreme case it may be necessary for the lawyer

to refer the matter to the organization's highest authority."

       Notice also Complainant's "Heads I win, Tails you lose" argument.

Respondent asserted that he had a duty as an officer of the court to assist the court

in the orderly closing of an estate. In response, Bar Counsel read a portion of

Judge Doyle's deposition [Dep. Doyle, p. 16-20] where he said that he would allow

counsel for the personal representative to withdraw and to permit an estate to

thereafter remain open indefinitely until the Clerk closed it administratively. Bar

Counsel then argued, on the basis of Judge Doyle's testimony: "So there is no

presumptive duty to close this estate as an officer of the court."[TR, p. 65,

3/20/03].

       Significantly, Bar Counsel did not read that portion of Judge Doyle's

deposition where he admitted entering orders to the personal representative and to

the attorney for the personal representative, in this estate, requiring them to file

papers. [Dep. Doyle, p. 50-51]. Bar Counsel also made no reference to Fla. R. Jud.

Admin 2.085(e)(1)(D) (prescribing the time limits within which estates must be

closed).

       Respondent respectfully calls upon Complainant to admit that it has in fact

                                            29
prosecuted attorneys for failing to comply with the orders of a Florida court to file

documents to close an Estate. "Heads I win, Tails, you lose."

       If adherence to Complainant's unsupported Comment places an attorney for

an estate in an untenable position where the personal representative and the estate

are in conflict, what is the attorney to do?

       The Preamble to the Rules of Professional Conduct states:

       . . . Within the framework of these rules many difficult issues of
       professional discretion can arise. Such issues must be resolved
       through the exercise of sensitive professional and moral judgment
       guided by the basic principles underlying the rules.


       Central to any determination of "conflict" is the identity of the client. Even

Complainant's Comment to Rule 4-1.7 admits that the identity of the client is

unclear under the law of some jurisdictions. In fact, it is as yet unsettled under the

law of Florida, Complainant's unsupported assertion to the contrary

notwithstanding.

       Donald E. Hawkins, AV rated expert concerning the administration of estates

and estate litigation in Florida stated:

       As to this particular comment to Rule 4-1.7 of the Rules Regulating
       The Florida Bar, upon information and belief this was written by The
       Florida Bar. Accordingly, it is my professional opinion it is
       inappropriate for The Florida Bar to seek to discipline a Florida lawyer
       based only on its own comment. That is particularly true where that

                                               30
        comment is without support in Florida rule, statute or case law.
        [Emphasis in original][AFF DEH, p.4]


        The only Florida case citing Complainant's Comment to Rule 4-1.7 is In re

Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA 1990). In that case, the court first

said:

        We have no quarrel with the view that counsel for the personal
        representative of an estate owes fiduciary duties not only to the
        personal representative but also to the beneficiaries of the estate. See
        Matter of Estate of Larson, 103 Wash.2d 517, 694 P.2d 1051 (1985).


        The court then cited Complainant's unsupported Comment in support of its

holding that counsel for the personal representative did not occupy such a

relationship with Estate beneficiaries as would disqualify him from representing the

personal representative in obtaining her personal representative's fee from the

Estate.

        In Gory, the personal representative did not violate her fiduciary duty to the

estate or its creditors, or breach her contract with the attorney for the estate, or file

a false tax return, or willfully refuse to comply with a court order. What the attorney

for the estate should do under the circumstances of this case was neither presented

to nor decided in Gory. Any reliance on that case to find Respondent guilty of

violating Rule 4-1.7 in this case, therefore, is misplaced, even if such a violation had

                                             31
been alleged and found.

       The issue in this case is to whom does the attorney for the estate owe

primary professional responsibility when the personal representative violates her

sworn legal and fiduciary duties; when she acts contrary to the interests of the

estate and its creditors?

       A clear analogy may be drawn from the professional responsibility of an

attorney for an organization when a "constituent" of that organization violates

fiduciary or legal duties to that organization. It is well established that under such

circumstances, the attorney's primary professional responsibility is to the

organization, and not to the defalcating "constituent." Rule 4-1.13(b), Rules

Regulating The Florida Bar; See: The Florida Bar v. Brown, 790 So.2d 1081

(Fla. 2001); Chaiken v. Lewis, 754 So.2d 118 (Fla. 3rd DCA 2000); Kaplan v.

Cowan Liebowitz & Latman, P.C., 832 So.2d 138 (Fla . 3rd DCA 2002),

footnote 2.

       While there are no cases in Florida establishing that principle in the context

of estate administration, the applicable statutes and rules clearly treat the estate as a

legal entity separate from the personal representative, much the same as an

organization is a legal entity separate from its "constituents" in Rule 4-1.13. See:

§733.540(9), Fla. Stats. (2002); §733.619(4), Fla. Stats. (2002); §733.705(3),

                                            32
Fla. Stats. (2002); §733.702, Fla. Stats. (2002); §733.702(4), Fla. Stats. (2002);

§733.710, Fla. Stats. (2002); See also: Fla. Prob. R. 5.120(a), 5.320, 5.430, and

5.440; AFF DEH, p. 1-3; AFF AIP, p. 1-3.

       The personal representative employs counsel for the estate, and its

"constituents", to wit, the personal representative, heirs, beneficiaries, creditors,

and the like. Counsel for the personal representative has an attorney-client

relationship with the estate. Steinway v. Bolden, 185 Mich. App. 234, 460 N.W.

2d 306 (Mich. App. 1990)("We conclude that the clear intent of the Revised

Probate code and of the court rules is that, although the personal representative

retains the attorney, the attorney's client is the estate, rather than the personal

representative.")

       Donald E. Hawkins also stated:

       Based on my review of those statutes and rules, and based upon the
       fact that the attorney for the estate is paid by the estate, it is my
       professional opinion that Florida law is not settled as to whether an
       attorney is employed by a personal representative to represent the
       estate as an entity or to represent the personal representative as a
       fiduciary of that estate.

       The attorney for the estate may represent the personal representative
       of the estate as a fiduciary of that estate only so long as the interest of
       the personal representative as such fiduciary does not conflict with the
       interest of the estate. In the estate context and in the event a conflict of
       interest develops between the personal representative and the estate,
       the attorney is faced with conflicting professional responsibilities. As

                                            33
      an attorney serving the estate and definitely as an officer of the court,
      the attorney's primary duty should be to the estate as an entity, not to
      the personal representative.

      Florida case law provides ample support for the premise that an
      attorney's duty is to the estate and the administration of justice, not to
      the individual occupying the office of personal representative. [AFF
      DEH, p. 3]


      See also: Affidavit of Anthony I. Provitola, an AV rated expert on Florida

law, who is also familiar with professional ethics issues:

      Based upon my review of those statutes and rules, I have formed the
      following professional opinion as to the state of the law of Florida:

      An attorney is employed by a personal representative to represent the
      estate as an entity. The attorney for the estate represents the personal
      representative of the estate as an officer of that estate only so long as
      the interest of the personal representative as an officer does not
      conflict with the interest of the estate. In the event a conflict of interest
      develops between the personal representative and the estate, the
      professional responsibility of the attorney for the estate is to the estate
      as an entity, and to the court, as an officer of the court, and not to the
      personal representative. [AFF AIP. P. 3]


      Rigid adherence to Complainant's unsupported Comment, instead of to the

case-by-case ethical analysis suggested in the Preamble to the Rules Regulating The

Florida Bar, would also, in practice, require that multiple attorneys be employed at

the inception of every estate proceeding, in order to protect each separate interest,

a result expressly rejected by the court in Gory, supra.

                                            34
       If the attorney employed by the personal representative must represent the

personal representative exclusively, and then, in the event of misconduct by the

personal representative, must immediately jettison all fiduciary obligations to other

interested parties, there can be no fiduciary obligations to other interested parties.

An obligation that can be dropped at any time, arbitrarily, unilaterally, without

notice, warning, explanation, or further obligation, is simply not a "fiduciary

obligation."

       The only satisfactory ethical rule to be applied in estate administrations where

the personal representative abandons her sworn duties and fiduciary obligations to

the estate would be one patterned after the organization rule, Rule 4-1.13, Rules of

Professional Conduct. Complainant's unsupported Comment in Rule 4-1.7

provides no guidance for that circumstance. Rigid and unthinking adherence to that

Comment in that circumstance would wreak havoc with the professional and

fiduciary obligations resting upon the attorney for the estate.

       WHEREFORE, the Referee's recommendations that Respondent be found

guilty of violating the conflict rules are without factual or legal support and should

be rejected. The Complaint should be dismissed with prejudice.




                                            35
                                       ARGUMENT
                                       POINT TWO

       THE REFEREE ERRED BY FAILING TO GRANT
       RESPONDENT'S PRETRIAL MOTIONS TO STRIKE, TO
       DISMISS, OR FOR MORE DEFINITE STATEMENT, AND
       FOR SUMMARY JUDGMENT

                              A.
       MOTION TO STRIKE AND TO DISMISS OR
       ALTERNATIVELY FOR MORE DEFINITE STATEMENT


       The Complaint failed to comply with Rule 3-7.6(g)(1)(B), of the Rules of

Discipline: "The complaint shall set forth the particular act or acts of conduct for

which the attorney is sought to be disciplined." The Complaint also failed to

comply with Fla. R. Civ. P. 1.110(b)(2) in that it failed to contain "a short and plain

statement of the ultimate facts showing that the pleader is entitled to relief, . . .".

[Emphasis supplied] See: Beckler v. Hoffman, 550 So.2d 68 (Fla. 5th DCA

1989)("We find these allegations to be too general and vague and conclusory and

therefore, insufficient.")

       The Complaint made no attempt to relate its allegations of fact to its

"shotgun" concluding paragraph that Respondent had somewhere in the preceding

18 paragraphs violated 18 of the Rules of Professional Conduct. Respondent was

accordingly unable to determine which of the alleged facts supported violations of


                                             36
which of the listed rules, a violation not only of the quoted rules, but also of the

procedural due process notice requirements of the Florida and United States

Constitutions. See: In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117

(1968)("The absence of fair notice as to the . . . precise nature of the charges

deprived petitioner of procedural due process."), modified on other grounds, 392

U.S. 919, 88 S.Ct. 2257, 20 L.Ed2d 1380 (1968).

                                   B.
                      MOTION FOR SUMMARY JUDGMENT


       Respondent's Motion For Summary Judgment demonstrated by its attached

affidavits and memorandum of law that there was no genuine issue of material fact

on any issue presented in the Complaint. Complainant responded only by attaching

the Inquiry/Complaint form purportedly signed by Helen Morton. Complainant

presented no affidavits in opposition to the motion.

       In The Florida Bar v. Mogil, 763 So.2d 303 (Fla. 2000), this Court

(alternatively) held in a Bar disciplinary proceeding that once a movant tenders

competent evidence to support a motion for summary judgment, the opposing

party must come forward with sufficient admissible counterevidence to reveal a

genuine issue of material fact. It is not enough for the opposing party merely to

attach documents to an unsworn letter, without a supporting affidavit, and assert

                                            37
that an issue does exist. See: Fla. R. Civ. P 1.510(c); Op. Att'y Gen. Fla. 95-40

(1995); The Florida Bar v. Clement, 662 So.2d 690, 698 (Fla. 1995)(dictum);

First Union National Bank of Florida v. Ruiz, 785 So.2d 589 (Fla. 5th DCA

2001); Orbe v. Orbe, 651 So.2d 1295 (Fla. 5th DCA 1995).

      Even if an "affidavit" within the meaning of Fla. R. Civ. P. 1.510(c), the

Inquiry/Complaint Form purportedly signed by Helen Morton was legally

insufficient to create a genuine issue of fact because it was not based on personal

knowledge, and was replete with speculations and conclusions. See: Morgan v.

Continental Casualty Company, 382 So.2d 351 (Fla. 3d DCA 1980);

Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. App. 3d 1983);

Sherman v. Weintraub, 132 So.2d 421 (Fla. 3d DCA 1961); Carter v. Cessna

Finance Corporation, 498 So.2d 1319 (Fla. 4th DCA 1986).

      In light of the evidence contained in the affidavits attached to the Motion for

Summary Judgment, particularly the evidence that Helen Morton was reported to be

elderly and infirm, and had signed several different documents bearing widely

conflicting facts, some in blank, some before a notary, and some, like the

Inquiry/Complaint form, under penalties of perjury, the Inquiry/Complaint form,

even if deemed an "affidavit," was so inherently unreliable as to be insufficient to



                                           38
create a genuine issue of material fact in opposition to Respondent's motion for

summary judgment.

      WHEREFORE, The Referee erred by failing to grant Respondent's Motions

To Dismiss and To Strike or Alternatively, For More Definite Statement, and

Respondent's Motion For Summary Judgment. Accordingly, Summary Judgment in

favor of Respondent should be granted by This Honorable Court, or, alternatively,

the Complaint should be dismissed.




                                          39
                                     ARGUMENT
                                    POINT THREE

      THE REFEREE ERRED BY GRANTING COMPLAINANT'S
      MOTION TO WAIVE DEFENSES AND DENYING
      RESPONDENT'S MOTION TO COMPEL DISCOVERY


      Complainant filed a "Motion To Waive Defenses and Objections." The

Complainant's motion sought an order "waiving any and all previously unraised

[sic] defenses and objections now argued in Respondent's Motion for Summary

Judgment," on the ground that "all defenses and objections raised de novo in

Respondent's Motion for Summary Judgment should be waived pursuant to Fla. R.

Civ. P. 1.140(h)(1). [Citation Omitted]" Complainant's motion did not identify what

defenses or objections it contended had been or should be "waived."

      The order of the Referee granted the Complainant's Motion to Waive

Defenses and Objections, but did not identify what defenses or objections had

been "waived," or what would be the significance at Final Hearing of its

determination that those unspecified defenses or objections had been "waived."

Respondent initially interpreted that order as a nullity. However, when Complainant

relied upon that order as the justification for its denial of Respondent's Requests

For Admissions, and cited that order in its response to Interrogatory No. 4, as the

"person" consulted in making its decision to deny each request for admission,

                                           40
Respondent moved for clarification or rehearing.

         The Referee "re-granted" Complainant's motion, without clarification, [TR,

p. 38-41, 2/12/03] and denied Respondent's motion to compel answers to Requests

For Admissions 1-20, even though no objection to those requests had been filed as

required by Fla. R. Civ. P.1.370.

         A "Motion To Waive Defenses and Objections" is without foundation in The

Florida Rules of Civil Procedure. Such a motion, directed to unidentified defenses

or objections is a nullity, as is an order granting such a motion. See: Bay Colony

Office Building Joint Venture v. Wachovia Mortgage Company, 342 So.2d

1005 (Fla. 4th DCA 1977); Windle v. Sebold, 241 So.2d 165 (Fla. 4th DCA

1970).

         Complainant's "Motion To Waive Defenses and Objections" sought no

protection from discovery. The Referee's order granting that motion by its terms

granted no protection from discovery. Yet Complainant successfully relied upon

the order granting that motion to avoid discovery.

         Respondent's Motion to Compel Discovery details how Complainant's

responses to the remaining Requests For Admissions and to the Interrogatories

were evasive, incomplete, and in violation not only of the Florida Rules of Civil

Procedure, but also of Rule 4-3.4(d) of the Rules of Professional Conduct. It

                                           41
would serve no useful purpose to repeat those arguments here.

       In his motion to compel, Respondent specifically brought to the Referee's

attention that Complainant's answer to Interrogatory No. 22, given under oath, was

apparently false, being inconsistent with written correspondence from Bar Counsel.

Respondent's motion to compel a more complete answer to that interrogatory to

resolve that inconsistency was, as were all other motions to compel, summarily

denied.

       The pernicious effect of the orders summarily denying Respondent's

motions to compel discovery was to deny Respondent essential information about

the factual basis for the allegations in the complaint, about the identity and

knowledge of Complainant's witnesses, about what documentary evidence would

be introduced at the Final Hearing, and about potential witnesses and potential

documentary evidence. Respondent was clearly prejudiced by those rulings.

       WHEREFORE, The Final Report of the Referee should be rejected, the

Complainant should be ordered to pay Respondent's costs and attorney's fees, and

the case should be referred to a different Referee for the taking of evidence and the

preparation of a new Final Report.




                                            42
                                    ARGUMENT
                                    POINT FOUR

      THE TOTALITY OF THE REFEREE'S RULINGS AND
      CONDUCT DEPRIVED RESPONDENT OF A FAIR
      HEARING IN VIOLATION OF HIS RIGHT TO DUE
      PROCESS UNDER THE FLORIDA AND UNITED STATES
      CONSTITUTIONS.


      The Referee granted and re-granted a "Motion To Waive Defenses," a nullity

under Florida law, and then permitted Complainant to use that order to evade

discovery. The Referee summarily denied Respondent's motions to compel

discovery without giving counsel an opportunity to argue those motions. [TR, p.

38-40, 2/12/03] [Point Three, Supra.]

      At Final Hearing, the Referee permitted Bar Counsel to convert an "opening

statement" into a final argument, over Respondent's objection, [TR, p. 14 3/12/03]

overruled Respondent's motion to strike or disregard that Opening Statement/Final

Argument as evidence [TR, p. 65, 3/12/03], and ultimately admitted that Final

Argument into evidence over objection [TR, p. 176, 3/12/03].

      The Referee refused to grant a continuance of the Final Hearing after Bar

Counsel read a lengthy written argument to the Referee that revealed for the first

time how Complainant believed the alleged facts related to the alleged rule

violations. [TR, p. 4-62, 3/12/03; TFB EXH B]

                                          43
      The Referee denied Respondent an opportunity to reply to Complainant's

Exhibit B, its written final argument. [TR p. 176, 3/12/03].

      The Referee placed no limitations on Bar Counsel's presentation of her case,

[TR, p. 33, 3/12/03] while severely restricting Respondent in the presentation of his

case [TR, p. 169-173, 3/12/03].

      The Referee allowed Bar Counsel to introduce 72 documents into evidence

as a composite exhibit, over Respondent's objection that it was a highly selective,

one-sided, out-of-context excerpt of voluminous correspondence and emails, and

required Respondent to review that voluminous exhibit over the lunch break and

register any objections to it immediately thereafter. [TR, p. 145-46, 1763/12/03]

      The Referee required Respondent to submit any correspondence and email

Respondent claimed were missing, tabbed so as to correspond with the tab

numbers used by Bar Counsel, "the sooner the better" after the Final Hearing. [TR,

p. 147-149, 209-210, 3/12/03]

      During Respondent's presentation of his evidence, the Referee repeatedly

interrupted, cross-examined, and argued with the Respondent. [TR, p. 113-129,

134-136 3/12/03; TR, p. 34, 37, 53, 75 3/20/03]

      Despite his expressed respect for Respondent's character witnesses, the

Referee made no reference to their testimony in his Final Report. Compare: The

                                          44
Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970):

      All of these distinguished jurists declared their full and total confidence
      in the reliability and integrity of the respondents; and while, of course,
      such attestations are not controlling in disciplinary matters of this kind,
      they are deserving of serious consideration as we perform the delicate
      function of reconciling the conflicts of evidence such as those found
      in this record. [Emphasis supplied]

      When Respondent asked for an opportunity to speak to the issue of

mitigation, the Referee granted the request, but immediately interrupted Respondent

to ask about his own travel reimbursement. [TR, p. 75, 81, 3/20/03] He made it

clear that he was not listening, [TR, p. 82, 3/20/03] and went off the record without

allowing Respondent to complete his presentation on mitigation, and without

formally concluding the hearing. [TR, p. 84, 3/20/03].

      Just before going off the record for the last time, the Referee attempted to

pressure Respondent to negotiate a plea agreement with Bar Counsel, saying [TR,

p. 84 3/20/03]:

      "I'm just asking, before I leave here, are you in a position to negotiate
      considering The Bar has used up a great deal of resources, woman-
      power, time, energy, money, court reporting fees, and so on and so
      forth?You would have to take into consideration you're not in as
      strong a bargaining position as you were in initially, is there a scenario
      that you can work it out at this point?"

      The Referee accepted a proposed Final Report from Bar Counsel without

affording Respondent an opportunity to prepare and present a proposed Final

                                           45
Report [TR, p. 81 3/20/03], in violation of the comment to Canon 3B7 of the Code

of Judicial Conduct1. The Referee then signed the Bar's proposed Final Report

without alteration.

       In his Final Report, the Referee made absolutely no reference to any issue,

document, witness, affidavit, evidence or argument offered or presented by

Respondent.

       WHEREFORE, the Referee's conduct of these disciplinary proceedings

denied Respondent due process of law under the Florida and United States

Constitutions, and this case should be referred to another Referee to take evidence

and render a new Final Report.




       A judge may request a party to submit proposed findings of fact and
       1

conclusions of law, so long as the other parties are apprised of the request and are
given an opportunity to respond to the proposed findings and conclusions.


                                           46
                                   CONCLUSION

      Because the Referee's recommendations that Respondent be found guilty of

violating the conflict and other rules are clearly erroneous and without evidentiary

support and because the Referee erred by failing to grant Respondent's pretrial

motions to strike, to dismiss, or for more definite statement, and for summary

judgment and because the Referee erred by granting Complainant's motion to waive

defenses and denying Respondent's motion to compel discovery and because the

totality of the Referee's rulings and conduct deprived Respondent of a fair hearing

in violation of his right to due process under the Florida and United States

Constitutions, the Final Report of the Referee should be rejected and the Complaint

dismissed, or summary judgment should be entered in favor of the Respondent, or,

at the very least, the matter should be referred to a new Referee for a new hearing

and a new Final Report.




                                           47
                          CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that I have served the original of the foregoing Initial
Brief to the Hon. Thomas D. Hall, Clerk of the Supreme Court of Florida, Supreme
Court Building, 500 S. Duval Street, Tallahassee, Florida, 32399-1927; and a copy
of the foregoing to John Anthony Boggs, Staff Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, Florida 32399-2300; and to Elizabeth Sikora
Conan, Branch Disciplinary Counsel, at 1200 Edgewater Drive, Orlando, Florida,
32804-6314, by first class mail, this 21st day of July, 2003.

                                S/Daniel R. Vaughen
                                Daniel Richard Vaughen
                                In Pro Persona
                                P.O. Box 364
                                DeLand, Fl 32721-0364
                                Fla. Bar No. 083486
                                (386) 734-8914

                       CERTIFICATE OF COMPLIANCE

       I HEREBY CERTIFY that the foregoing Petition for Certiorari complies with
the font requirements of Fla. R. App. P. 9.210(a)(2).

                                      S/ Daniel R. Vaughen
                                            Attorney




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