Docstoc

IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR_ Supreme Court

Document Sample
IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR_ Supreme Court Powered By Docstoc
					                    IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,                     Supreme Court Case
                                     No. SC95846
     Complainant,

v.                                   The Florida Bar File
                                     No. 1999-71,607(11N)
KEITH CORNEILUS LEVARITY,

     Respondent.
_______________________________/


                     INITIAL BRIEF OF COMPLAINANT

                                     WILLIAM MULLIGAN
                                     Bar Counsel
                                     TFB No. 956880
                                     The Florida Bar
                                     444 Brickell Avenue, Suite M-100
                                     Miami, Florida 33131
                                     Tel: (305) 377-4445

                                     JOHN F. HARKNESS, JR.
                                     Executive Director
                                     TFB No. 123390
                                     The Florida Bar
                                     650 Apalachee Parkway
                                     Tallahassee, Florida 32399-2300
                                     Tel: (904) 561-5600

                                     JOHN ANTHONY BOGGS
                                     Staff Counsel
                                     TFB No. 253847
                                     The Florida Bar
                                     650 Apalachee Parkway
                                     Tallahassee, Florida 32399-2300
                                     Tel: (904) 561-5600
                                     TABLE OF CONTENTS

                                                                                           PAGE

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

TABLE OF AUTHORITIES ............................................................ ii

CERTIFICATE OF TYPE, SIZE AND STYLE
and ANTI-VIRUS SCAN ................................................................. iii

STATEMENT OF THE CASE AND FACTS .................................                          1-4

SUMMARY OF ARGUMENT ........................................................ 5-6

ARGUMENT ....................................................................................7-9


                THE REFEREE’S REPORT
                SHOULD BE APPROVED .......................................                 7-9


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

CERTIFICATE OF SERVICE ......................................................... 11




                                             i
                                   TABLE OF AUTHORITIES
                                                                                                PAGE

Demetree v. Marsh,
     89 So. 2d 498 (Fla. 1956) ...................................................                 8

The Florida Bar v. Burton,
      218 So. 2d 748 (Fla. 1969) ..................................................                7

The Florida Bar v. Shanzer,
      572 So. 2d 1382(Fla. 1991) ..................................................                7

The Florida Bar v. Youngblood,
      153 So. 2d 817 (Fla. 1963) ....................................................              8

The Florida Bar v. Mechlowitz,
      238 So. 2d 643 (Fla. 1970) ....................................................              8


Other Authorities:

Rules Regulating The Florida Bar
Rule 3-7.11(g) ................................................................................... 8
Rule 3-7.7(g) ..................................................................................... 8




                                                         ii


      CERTIFICATE OF TYPE, SIZE AND STYLE and ANTI-VIRUS SCAN
      Undersigned counsel does hereby certify that the Brief of The Florida Bar is

submitted in 14 point proportionately spaced Times New Roman font, and that the

computer disk filed with this brief has been scanned and found to be free of viruses,

by Norton Anti-Virus for Windows.




                                           iii

                    STATEMENT OF THE CASE AND FACTS

      The Florida Bar, the Complainant, served a Petition for Order to Show Cause
on June 15, 1999. The Petition was based upon Respondent’s failure to comply

with the December 17, 1998 order issued in relation to the Respondent’s resignation

from the Bar. Said Order required that, as a condition of his resignation,

Respondent was to immediately submit to a trust account audit. The Petition states

that Respondent failed to provide requested records to the Bar.

      Respondent was also required to send a letter to all of the individuals on his

client list informing them of his resignation. The Petition for Order to Show Cause

stated that at least one person on the list reported that she had received no written

notice of the resignation. An affidavit to that effect was submitted with the Petition.

      On June 28, 1999 this Court issued an Order to Show Cause. Respondent

was ordered to show cause on or before July 19, 1999 as to why he should not be

held in contempt and disbarred.

      On August 9, 1999, attorney H. T. Smith submitted a Motion to Accept

Response Out of Time on behalf of Respondent, as well as a Response to Petition

for Order to Show Cause. In the response the Respondent claimed that he provided

all of the audit materials in his possession to the Bar and that the person who had

not been notified of his resignation was a former client.

      The Bar’s reply disputed the Response to the Order to Show Cause. The Bar

pointed out that submission to a complete audit was a condition attached to the

                                            1
resignation, and that Respondent was reminded of that obligation in writing, by the

Bar. Furthermore, the Bar wrote Respondent on more than one occasion to advise

him that his affidavit of notice to clients was not in compliance with the Rules.

          This Court accepted the Response out of time by an order entered August 17,

1999. A subsequent order dated September 16, 1999 authorized the appointment of

a Referee by the Chief Judge of the Eleventh Judicial Circuit. Judge Lawrence

Schwartz was appointed as Referee.

          Respondent’s counsel, H.T. Smith, moved to withdraw and an order granting

the motion was entered on February 16, 2000. Final hearing was scheduled for

March 3, 2000, at 1:30 p.m. Respondent did not appear.

          The Referee noted on the record that he had personally notified the

Respondent, in chambers, of the date and time of the final hearing. (T.3).

Respondent had also returned to the Referee’s chambers to remind him that he, the

Respondent, would represent himself at the final hearing.

          No message from Respondent was received by the Referee or his staff on the

day of the final hearing. (T. 4). The undersigned Bar Counsel did receive a

telephone call from Respondent who promised to fax a stipulation for a five year

disbarment. However, no document was submitted subsequent to the telephone call.

(T. 4).

                                             2
      Carlos Ruga, the Bar’s Auditor, testified regarding his contacts with

Respondent. Subpoenas had been issued by the Bar for trust account records.

(T.15 -17). Respondent never produced the records (T. 17) and never advised the

auditor that he didn’t have the records. (T.18).

      Respondent submitted his Petition for Resignation during October, 1998.

This Court accepted his resignation, but ordered the Respondent to comply with the

conditions set forth in the Bar’s response to the resignation. (T.20). The records

requested in connection with at least one of the subpoenas were the same as those

designated in this Court’s order. (T. 21).

      Witness, Norma Jean Williams, also confirmed the factual allegations in the

Petition for Order to Show Cause which pertained to her. She believed that

Respondent was taking care of her foreclosure case. (T. 10). One day prior to the

foreclosure, Respondent referred Williams to a bankruptcy lawyer. (T. 11-12). He

did not state, however, that he was getting off the case. (T. 12).

      The Referee recommended disbarment and incarceration of the Respondent

until he produced the records as the remedy for Respondent’s contempt.

Respondent did not Petition for Review. However, this Court ordered briefing of

this case in an order dated September 6, 2000.




                                             3
4
                            SUMMARY OF ARGUMENT

      The final hearing before the Referee was held on March 3, 2000. Respondent

did not appear despite personal notices. The Referee recommended disbarment of

the Respondent and incarceration for contempt until such time as Respondent

produced records for an audit.

      Respondent did not file a Petition for Review. However, this Court ordered

that briefs be submitted by the respective sides.

      The Respondent’s discipline and adjudication of contempt were based upon

two factors. First, Respondent failed to provide records required by an order of this

Court. Second, Respondent failed to notify one of his clients that he had resigned.

      The records were required as a condition for approval of Respondent’s

resignation. An initial determination had been made that funds were missing from

Respondent’s trust account. Misuse of client funds is one of the most serious

offenses a lawyer can commit and disbarment is the usual punishment.

      Respondent was required to produce records as a condition for his

resignation. He failed to do so. Incarceration is an appropriate remedy for

contempt as long as it is coercive and not punitive. Clearly, the threat of

incarceration is being used in a coercive manner, i.e., to induce production of

required records in this case.

                                            5
      The basis for the Referee’s recommendation is sound. Therefore, the

discipline and the remedy for contempt should be upheld.




                                         6
                                      ARGUMENT

                              THE REFEREE’S REPORT
                              SHOULD BE APPROVED

         The Bar’s Auditor, Carlos Ruga, testified that funds were missing from

Respondent’s trust accounts (T. 15). He was unable to provide additional specific

testimony because Respondent failed to produce essential records despite a

subpoena ordering him to do so. (T. 15).

         In The Florida Bar v. Shanzer, 572 So. 2d 1382 (Fla. 1991), this Court stated

that misuse of client funds is among the most serious offenses a lawyer can commit

and that disbarment is presumed to be the appropriate punishment. An attorney who

is disbarred for misuse of funds has the burden to show that the remedy was

erroneous, unlawful or unjustified. The Florida Bar v. Burton, 218 So. 2d 748 (Fla.

1969).

         In this case the Respondent has not sought to meet his burden. He has not

appeared for the final hearing, although he received personal notice of the date and

time of the hearing. (T. 3). He has filed no Motion for Rehearing and no Petition for

Review. Prior to the final hearing in this case, the Respondent petitioned for a

disciplinary resignation. The Bar did not oppose his resignation. However, the

Bar’s response did contain conditions incident to Respondent’s resignation.


                                            7
Those conditions were incorporated by reference in this Court’s order of December

17, 1998. (T. 20). The requirements included production of records which would

facilitate an audit and notification to all of his clients of his resignation. (T. 23).

       Respondent did not notify client, Norma Williams, of his resignation. (T. 9).

Furthermore, he did not produce the records which were required by this Court’s

order and related subpoena. (T. 24).

       Since Respondent did not provide the records which he was ordered to

produce or notify Ms. Williams of his resignation, the Bar filed a Petition for Order

to Show Cause. Rule 3-7.11(g) provides for a contempt proceeding when a party

does not produce records in response to a subpoena. In addition, Rule 3-7.7(g)

provides for contempt proceedings in relation to disciplinary proceedings.

Imprisonment may be ordered in a civil contempt proceeding. Demetree v. Marsh,

89 So. 2d 498 (Fla. 1956). It is appropriate when, as in this case, it is coercive

rather than punitive. Id. at 501.

       Furthermore, when an attorney does not file a Petition for Review, and there

is no basis for interference by this Court, the Referee’s Report and

recommendations will be affirmed. The Florida Bar v. Youngblood, 153 So. 2d 817

(Fla. 1963). Also, in The Florida Bar v. Mechlowitz, 238 So. 2d 643 (Fla. 1970),

an attorney who refused to account for funds received in trust from his client and

                                              8
who received notice of Bar proceedings and chose not to defend, was permanently

disbarred.

      The Bar submits that, based upon the foregoing, the Referee’s Report should

be approved.




                                         9
                                  CONCLUSION

               WHEREFORE, based upon the foregoing, the Referee’s Report should

be approved.




                                        10
                          CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that the original and seven copies and diskette of the

foregoing Reply Brief of Complainant was forwarded to the Honorable Thomas D.

Hall, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida

32399-1927 and a true and correct copy was mailed to Keith Cornelius Levarity,

Respondent at his record Bar address at 1390 Little River Drive, Miami, Florida

33147 and to John Anthony Boggs, Staff Counsel, The Florida Bar, 650 Apalachee

Parkway, Tallahassee, Florida 32399-2300 on this         day of October, 2000.



                                              __________________________
                                              WILLIAM MULLIGAN
                                              Bar Counsel




                                         11

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:3
posted:10/5/2011
language:English
pages:15