IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant, CASE NO. SC10-352

v. TFB FILE NO. 2009-10,532(6C)

THOMAS WILLIAM CAREY,

Respondent. _____________________________________

RESPONDENT’S ANSWER BRIEF

SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 DEBRA JOYCE DAVIS, ESQUIRE Florida Bar No. 93556 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent

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TABLE OF CONTENTS TABLE OF CONTENTS…………………………………………………………...i TABLE OF CITATIONS………………………………………………………….iii SYMBOLS AND REFERENCES………………………………………………..vii STATEMENT OF THE CASE AND OF THE FACTS…………………………...1 STANDARD OF REVIEW………………………………………………………...9 SUMMARY OF THE ARGUMENT……………………………………………..12 ARGUMENT……………………………………………………………………...15

I. The Referee Correctly Found Respondent Not Guilty of Any Conflict of Interest Proscribed by Rule 4-1.7....………………….15

A. When Sommers expressed concern, Respondent owed fiduciary

duties to both clients and was ethically obligated to carefully evaluate the alleged conflict and the likelihood that Sommers would be a material adverse witness, rather than hastily jettison one or both clients…………………………………………..……………..19

B. Respondent acted legally and ethically in deferring any action

for approximately 3 months, until the opposing party’s motion to disqualify could be heard, where he had no prior evidence of the basis for the alleged conflict of interest and Mellette agreed to stay the prosecution of her case………………………………………………..………….23

C. Respondent did not violate Rule 4-1.7 where immediately

following the disqualification hearing at which evidence of a potential conflict was first produced, Respondent voluntarily withdrew and waived his fees and costs…………………………………………………………..30

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II. The Referee Correctly Found that Respondent Discussed the

Alleged Conflict with Sommers and Appropriately Concluded that Respondent was Not Guilty of Violating Rule 4-1.4.…..…....32

III. The Referee’s Recommendation of Diversion is Fully Supported

and Should be Upheld.……………………………………………..34

A. If this Court disapproves the recommended diversion, it should remand the case to the Referee to conduct a sanctions hearing and to consider evidence in mitigation before recommending an appropriate disposition.……………………......………………...………...34

B. The cases cited by the Bar to support a suspension are

distinguishable.…………………………………………..…...36 C. A diversion is supported by the Standards for Imposing Lawyer

Sanctions and meets the purposes of lawyer discipline....………………………………………………..….38

D. A diversion is supported by existing law..………………....…42

CONCLUSION…………………………………………………………………...49 CERTIFICATE OF SERVICE……………………………………………………50 CERTIFICATION OF FONT SIZE AND STYLE…….…………………………50

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TABLE OF CITATIONS

CASES Brooks v. Foster, 889 So. 2d 902 (Fla. 4th DCA 2004)…………………………...24 Dep’t of Legal Affairs v. District Court of Appeal, 5th District,

434 So. 2d 310 (Fla. 1983)………………………………………………....45 Florida Bar v. Brake, 767 So. 2d 1163 (Fla. 2000)……………………………….28

Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008)…………...………...…22, 36, 37

Florida Bar v. Cosnow, 797 So. 2d 1255 (Fla. 2001)………………………………9

Florida Bar v. Dunagan, 731 So. 2d 1237 (Fla. 1999)……………………………37

Florida Bar v. Hecker, 475 So. 2d 1240 (Fla. 1985)……………………………...35

Florida Bar v. Hines, 39 So. 3d 1196 (Fla. 2010)………………………………..35

Florida Bar v. Hochman, Case No. SC09-2279, TFB File No. 2009-31,577(18A).………………………………………46-48

Florida Bar v. Hochman, Case No. SC10-804, TFB File No. 2010-30,463(18A).………………………………………46-48

Florida Bar v. Irish, 48 So. 3d 767 (Fla. 2010)……………………………………35

Florida Bar v. Kossow, 912 So. 2d 544 (Fla. 2005)………………………………11

Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997)……………………..............10

Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983)……………………………...40, 41

Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994)………………………………10

Florida Bar v. Martocci, 699 So. 2d 1357 (Fla. 1997)……………………………..9 Florida Bar v. Mastrilli, 614 So. 2d 1081 (Fla. 1993)…………………………….37

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Florida Bar v. Maurice, 955 So. 2d 535 (Fla. 2007)………………………………37 Florida Bar v. Neely, 502 So. 2d 1237 (Fla. 1987)……………………………...…9 Florida Bar v. Poplack, 599 So. 2d 116 (Fla. 1992)…………………………...40-41 Florida Bar v. Respondent, Case No. SC06-1601,

TFB File No. 2005-31,245(09C)…………………………………….……..46

Florida Bar v. Respondent, Case No. SC07-102, TFB File No. 2005-10,830(6C)………………………………………...45-46

Florida Bar v. Respondent, Case No. SC10-1309, TFB File No. 2010-10,293(13D)…………………………………………...45

Florida Bar v. Respondent, Case No. SC10-1492,

TFB File No. 2008-11,493(6E)………………………………………….…45 Florida Bar v. Rose, 823 So. 2d 727 (Fla. 2002)…………………………………...9 Florida Bar v. Stalnaker, 485 So. 2d 815 (Fla. 1986)………………………………9 Florida Bar v. Vining, 761 So. 2d 1044 (Fla. 2000)…………………………..10-11 In re Jet 1 Center, Inc., Debtor, 310 B.R. 649 (Bkrtcy. M.D. Fla. 2004)…..……..19 Lussi v. Design-Build & Engineering, Inc.,

2010 WL 1687079 (S.D. Fla. 2010)…………………………………....26-27 Morse v. Clark, 890 So. 2d 496 (Fla. 5th DCA 2004)……………………………..38 Quality Air Conditioning Company v. Vrastil,

895 So. 2d 1236 (Fla. 4th DCA 2005)…………………………………..17-18 Silver v. Downs, 425 A. 2d 359 (P.A. 1981)……………………………………...20 Silvers v. Google, 2007 WL 141153 (S.D. Fla. 2007)…………………………....25 Singer Island Ltd., Inc., v. Budget Const. Co., Inc.,

714 So. 2d 651 (Fla. 4th DCA 1998)……………………………………24-25

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State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008)……………………………....28 State v. Jeffers, 520 F.2d 1256 (7th Cir. 1975)……………………………………32 RULES REGULATING THE FLORIDA BAR 3-5.1(b)(1)…………………………………………………………………..…43-44

3-5.3……………………………………………………………………………42-43

3-7.7(c)(5)………………………………………………………………………...10

Preamble……………………………………………………………………….41-42

4-1.1………………………………………………………………………………37

4-1.18(a), (b) and (c)……………………………………………………………....47

4-1.3……………………………………………………………………………36-37

4-1.4………………………………………………………………………………32

4-1.4(a) …………………………………………………………...…………...36-37

4-1.4(b)…………………………………………………………………1, 15, 32, 34

4-1.5(a)……………………………………………………………………………47

4-1.6……………………………………………………………………………….26

4-1.7….…………………………………..……15, 17, 21, 23, 29, 37, 38, 40, 42, 43

4-1.7(a)...……………………………………………...……1, 15, 16, 22, 31, 36, 38

4-1.7(a)(1)………………………………………………………………………....16

4-1.7(a)(2)………………………………………………………………………....16

4-1.7(b)…………………………………………………..…………1, 15, 22, 31, 37

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4-3.2…….………………………………………………………………………....37

4-3.7…….………………………………………………………………………....24

4-3.7(a).…….……………………………………………………………………..25

4-8.4(c).……...…………………………………………………………………....36

4-8.4(d).……………………………………………………………………….......28

FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS

Preface……………………………………………………………………………44

3.0.……………………………………………………………………………...…38

FLORIDA STATUTES 837.011 (2004)…….………………………………………………………………29 ETHICS OPINIONS American Bar Association Formal Opinion 92-367..……………………………..31 OTHER RESOURCES “Conflicts of Interest in Private Practice,” 94 Harv. L. Rev. 1284……………….18 Rotunda, Ronald D. “Resolving Client Conflicts by Hiring ‘Conflicts Counsel.’”

Hastings Law Journal, February 2011…………..………………………….32 BLACK’S LAW DICTIONARY, 6th ed. 1990…………………………………...29

vii

SYMBOLS AND REFERENCES

I.B. = The Florida Bar’s Initial Brief. RR. = Report of Referee. R. Exh. = Respondent’s Exhibit from Final Hearing. TFB Exh. = The Florida Bar’s Exhibit from Final Hearing. T. = Transcript of Final Hearing before Referee on

July 29 - 30, 2010. TR. = Transcript of Ruling before Referee on October 27, 2010. Depo. = Transcript of Professor Roberta Flowers’ Deposition dated

June 21, 2010.

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STATEMENT OF THE CASE AND OF THE FACTS The Florida Bar’s Statement of the Case and of the Facts omits critical facts

necessary to a full understanding of this case. Accordingly, Mr. Carey presents his

own Statement of the Case and of the Facts below.

The Bar alleges that Mr. Carey had a conflict of interest under Rule 4-1.7(a)

and (b), and inadequate communication under Rule 4-1.4(b), because from mid-

June 2008, until he withdrew in September 2008, Mr. Carey simultaneously

represented two clients in unrelated matters whose interests the Bar concludes were

adverse. (I.B. 1). The Bar’s conclusion is predicated on the fact that one client

was employed as general manager for an entity against which the other client filed

suit. Following a final hearing held July 29 and 30, 2010, the Referee announced

on October 27, 2010, that he did not find that Mr. Carey had violated any of the

charged Rules Regulating The Florida Bar. (TR. 4). On November 4, 2010,

consistent with his prior ruling, the Referee issued a Report of Referee

recommending that Mr. Carey be found not guilty of violating the Rules

Regulating The Florida Bar and that he be diverted to a practice and

professionalism enhancement program, including Ethics School. (RR. 4).

On December 28, 2010, the Bar filed a Petition for Review of the Report of

Referee seeking to overturn the Referee’s finding and conclusion that Mr. Carey be

found not guilty and the Referee’s recommendation of diversion. (I.B. 12). The

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Bar served its Initial Brief on January 25, 2011, stating that it does not challenge

the factual findings of the Referee. (I.B. 12). Notwithstanding that there was no

opportunity for Mr. Carey to present, and the Referee to consider, any evidence in

mitigation, the Bar requests this Court to not only overturn the not guilty finding,

but to sua sponte impose a 30-day suspension along with requiring that Mr. Carey

attend Ethics School. (I.B. 12). The underlying facts are as follows.

Ms. Sommers hired Mr. Carey’s law firm, Carey, Leisure & Magazine, to

represent her regarding personal injuries sustained in a rear-end automobile

collision on November 14, 2005. (T. 58). Ms. Sommers had pre-existing injuries

and no wage loss claim. (T. 181-83). On March 6, 2008, Mr. Carey attended Ms.

Sommers’ deposition in her personal injury case during which she said she was

general manager at Trinity Memorial Gardens (“Trinity”); however, Ms. Sommers’

employment was not the focal point of her personal injury case. (T. 190, 259).

On or about March 5, 2008, Mr. Carey’s partner, Katherine Neal met alone

with Ms. Priscilla Mellette who then retained the law firm of Carey, Leisure &

Magazine to represent her in a lawsuit against Trinity for the wrongful

disinterment of her husband=s body. (T. 323-23; R. Exh. 8). On March 12, 2008,

Ms. Neal sent a letter to Trinity, attention Dianna Saige, requesting insurance

coverage related to the January 30, 2008 incident. (T. 90, TFB Exh. 13). This

letter placed Ms. Sommers on notice of Ms. Mellette’s claim against Trinity and

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the fact that Mr. Carey’s firm represented Ms. Mellette, but Ms. Sommers took no

action to contact Mr. Carey at that time. (T. 91, 95-96).

Mr. Carey did not meet Ms. Mellette until shortly before June 12, 2008,

when the firm filed the complaint against Trinity, which was the subject of a press

conference. (T. 326, 347). The media attempted to interview Ms. Sommers in her

capacity as general manager of Trinity regarding the Mellette lawsuit, and Ms.

Sommers provided no comment. (T. 78).

On or about June 16, 2008, Ms. Sommers contacted Theodore P. Littlewood,

Jr., an Attorney Consumer Assistance Program attorney with the Bar explaining

that she was the general manager, not an owner, officer or director of Trinity, and

she wanted to consult with company officials as to whether the Bar should call Mr.

Carey concerning a possible conflict. (T. 66; TFB Exh. 10). Ms. Sommers stated

she did not want to file a complaint at that time because her case was “close to

settlement.” (TFB Exh. 10). Ms. Sommers later called back and asked Mr.

Littlewood to call Mr. Carey to confirm that he would finalize her personal injury

case, to ask him to call her, and to suggest that Mr. Carey consider whether it was

appropriate to represent a plaintiff suing her employer in an unrelated case. (TFB

Exh. 10).

Upon receiving the call from Mr. Littlewood, Mr. Carey’s firm contacted

Ms. Sommers to arrange a meeting that took place with Ms. Sommers, Mr. Carey

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and his partner, Ms. Leisure, in the law office on June 17, 2008. (T. 70, 193).

Although Ms. Sommers was unhappy and expressed her discomfort with the firm

suing her employer, she did not ask them to withdraw from her case and “by the

time she left the meeting, she seemed to be satisfied.” (T. 114, 222). She stated

“unequivocally” she wanted the firm to continue to represent her. (T. 200).

Ms. Sommers confirmed in a letter dated June 19, 2008, that despite

concerns that her “position as a plaintiff in the personal injury case” might be

affected by the filing of a lawsuit against Trinity, she wanted Mr. Carey’s firm to

continue representing her and to accept no less than $75,000 at the mediation in her

case, which took place on June 26, 2008. (Exh. 2 to TFB Exh. 1, T. 125). The

firm investigated the alleged conflict and after conducting a review of both client

files and Ms. Neal interviewing Ms. Mellette, no evidence of any conflict was

found. (T. 327-28). With Ms. Sommers= knowledge and consent, Mr. Carey’s firm

continued to actively represent her interests in the personal injury case through a

mediation conducted June 26, 2008; review of Defendant=s proposal for settlement;

and Plaintiff=s Notice to Set Case for Jury Trial on July 30, 2008. (T. 291).

Mr. Carey expressed to both Ms. Sommers and to Mr. Littlewood that he did

not believe a conflict of interest existed merely because Ms. Sommers worked for

Trinity. (T. 72, TFB Exh. 10). Mr. Littlewood discussed only an Aapparent@

conflict of interest with Mr. Carey. (TFB Exh. 10).

5

Opposing counsel in the Trinity litigation, Mr. David LoNigro, contacted

Mr. Carey on June 30, 2008, indicating, without elaboration, that he believed there

was a conflict of interest in Mr. Carey representing Ms. Sommers in her personal

injury matter and also pursuing litigation against Ms. Sommers= employer. (T.

157). Mr. LoNigro then served a Motion to Disqualify Mr. Carey=s law firm on

July 2, 2008, and scheduled a hearing on the motion at the first available date, on

September 26, 2008. (T. 157, R. Exh. 9).

Mr. Carey presented the expert testimony of Professor Roberta Flowers, who

has taught professional responsibility courses at Stetson College of Law for more

than twelve years. (R. Exh. 12, Depo.). Professor Flowers opined that Mr. Carey

did not violate the rules of Professional Conduct. (Depo. 12). Professor Flowers

stated that in June 2008, when Ms. Sommers and opposing counsel raised the issue

of a potential conflict, Mr. Carey did not have information indicating direct

adversity. (Depo. 30). Professor Flowers opined that Mr. Carey was between a

rock and a hard place and his conduct was exactly what one would expect to see

and was correct under Rule 4-1.7. (Depo. 30). Because discovery was stayed and

Mr. Carey had agreed not to speak with Ms. Sommers regarding the Trinity case,

he had to wait until the motion to disqualify to find out the specific basis for the

alleged direct adversity. (Depo. 30).

6

Prior to the hearing on the Motion to Disqualify, Mr. LoNigro did not

provide Mr. Carey with any document or other evidence supporting his Motion to

Disqualify. (T. 167, RR. 2). Instead, the parties agreed to abate discovery in the

Trinity litigation from the time the Motion to Disqualify was filed on July 2, 2008,

until the Motion was considered at the hearing on September 26, 2008. (T. 162,

261, 328, 350). Mr. LoNigro testified that Mr. Carey “absolutely” had a right to

have the judge consider the Motion to Disqualify and that there was “nothing

unethical” in Mr. Carey wanting to see the basis or to have the issue decided by a

judge. (T. 163). In fact, Mr. LoNigro stated that the issue “had to be decided by a

judge” and because the issue was “debatable” he did not know how a judge would

rule. (T. 163).

Similarly, the Bar=s expert, William E. Hahn, Esquire, testified that he

understood how “reasonable people could say, I think I want to wait until that

hearing to assert my rights” and “[t]hat certainly is appropriate to do that.” (T.

255). Mr. Hahn added, however, that he did not think it was necessary and he did

not think a reasonable lawyer needs to wait until that point for there to be a “light

bulb of recognition.” (T. 255, RR. 2). The Bar has not identified any injury or

harm to either party caused by the delay in the litigation to consider the Motion to

Disqualify. (T. 262).

7

At the hearing on the Motion to Disqualify, Mr. LoNigro disclosed for the

first time a document entitled, ACemetery Agreement, Trinity Memorial Gardens@

purporting to bear Ms. Sommers= signature and pertaining to Trinity=s handling of

Ms. Mellette=s husband=s body. (R. Exh. 3;T. 167). Prior to the September 2008

disqualification hearing, Mr. Carey had no knowledge of the existence of this

document. (T. 154, 167). Upon considering the evidence presented at the hearing

on the Motion to Disqualify, after the judge had taken the matter under advisement

and before any ruling, Mr. Carey voluntarily withdrew from his representation of

Ms. Mellette in her lawsuit against Trinity. (T. 330-31).

Ms. Sommers testified that she never met, corresponded or had any

interaction with Ms. Mellette and further, that she had no direct involvement in the

interment or the disinterment of Ms. Mellette’s husband’s body. (T. 109).

Although she equivocated at the final hearing in this case, Ms. Sommers testified

in her deposition in the Trinity litigation that she also had no “supervisory role” in

those processes. (T. 111). See March 25, 2009 Deposition of Ms. Sommers in the

Trinity litigation, pp. 25-26, 42-43. Ms. Sommers testified that the extent of her

involvement in interments and disinterments was signing contracts after she

checked to be sure they were “filled out correctly.” (T. 112).

Mr. Carey offered to continue representing Ms. Sommers with a written

waiver and consent, but Ms. Sommers indicated she was unsure. (T. 280-81, 353-

8

54). Thereafter, Ms. Leisure attempted numerous unsuccessful telephone calls to

Ms. Sommers to discuss the firm’s withdrawal from her case and a smooth

transition to substitute counsel. (T. 209-211, 354, R. Exh. 7). When Ms. Leisure

and Ms. Sommers finally spoke on October 21, 2008, they agreed that withdrawal

was appropriate and that as an accommodation, the firm would wait to file a

motion to withdraw until Ms. Sommers retained new counsel. (T. 122, 211).

Thereafter, on October 24, 2008, Ms. Sommers wrote a letter to Mr. Carey and his

partner, Ms. Leisure, stating that she was discussing her personal injury case with

several attorneys and would notify them when she had completed that process. (R.

Exh. 14).

Mr. Carey’s firm ultimately withdrew from representing Ms. Sommers in

her personal injury case and facilitated the transition of her file to substitute

counsel. (R. Exh. 4 and 5). Mr. Carey waived his claim to any fees and cost

reimbursement in both Ms. Sommers’ personal injury case and in the Trinity

litigation. (T. 262).

9

STANDARD OF REVIEW

The Standard of Review for evaluating a referee’s factual findings and

conclusions as to guilt is limited. “[I]f a referee’s findings of fact and conclusions

concerning guilt are supported by competent substantial evidence in the record,

this Court will not reweigh the evidence and substitute its judgment for that of the

referee.” Florida Bar v. Rose, 823 So. 2d 727, 729 (Fla. 2002). “An attorney may

be found guilty only if the referee concludes that the alleged misconduct was

proven by clear and convincing evidence.” Florida Bar v. Martocci, 699 So. 2d

1357, 1359 (Fla. 1997). “Further, a referee’s findings of fact carry a presumption

of correctness which will be upheld unless ‘clearly erroneous or lacking in

evidentiary support.’” Id. citing Florida Bar v. Stalnaker, 485 So. 2d 815, 816 (Fla.

1986); Florida Bar v. Neely, 502 So. 2d 1237 (Fla. 1987).

The Bar cites Florida Bar v. Cosnow, 797 So. 2d 1255, 1258 (Fla. 2001),

which was decided on Summary Judgment below, to support its position that the

referee’s conclusions as to guilt should be reviewed de novo. The referee’s not

guilty findings are, however, not solely questions of law. The referee in the instant

case weighed conflicting testimony and drew inferences from the evidence to

support his conclusion that the Bar failed to meet its burden of proving any ethical

violation by clear and convincing evidence. In such a case, the not guilty findings

are factual determinations that warrant deference and should be upheld if supported

10

by competent, substantial evidence. When challenging a referee’s conclusions as

to guilt, the Bar has the burden of demonstrating that the record is devoid of

evidence to support those findings or that the record evidence clearly contradicts

the conclusions. Florida Bar v. Vining, 761 So. 2d 1044, 1047 (Fla. 2000).

Because a referee is in the best position to evaluate the demeanor and

credibility of witnesses, this Court “neither re-weighs the evidence in the record

nor substitutes its judgment for that of the referee so long as there is competent,

substantial evidence in the record to support the referee’s findings.” Florida Bar v.

Marable, 645 So. 2d 438, 442 (Fla. 1994). The burden is on “the party seeking

review to demonstrate that a report of referee . . . is erroneous, unlawful, or

unjustified.” R. Regulating Fla. Bar 3-7.7(c)(5).

Although this Court has greater discretion in reviewing sanction

recommendations, this Court has repeatedly explained as follows:

[T]he referee in a Bar proceeding again occupies a favored vantage point for assessing key considerations – such as a respondent’s degree of culpability and his or her cooperation, forthrightness, remorse and rehabilitation (or potential for rehabilitation). Accordingly, we 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. Lecznar, 690 So. 2d 1284, 1288 (Fla. 1997). In evaluating a

recommended sanction, the standard of review not only gives deference to the

referee, but requires restraint in not substituting the opinion of the Court for that of

11

the referee as long as the recommended findings of fact and conclusions as to guilt

are supported by competent substantial record evidence.

This Court pays more deference to recommendations as to guilt than to

recommendations as to discipline, but should uphold a referee’s recommended

sanction if it has a “reasonable basis in existing case law.” Vining at 1048 (Fla.

2003)(citations omitted). Generally, this Court will not second-guess a referee’s

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

Florida Standards for Imposing Lawyer Sanctions. Florida Bar v. Kossow, 912 So.

2d 544, 546 (Fla. 2005). Similarly, this Court should approve a referee’s

recommendation of diversion that has a reasonable basis in existing law.

12

SUMMARY OF THE ARGUMENT

The Florida Bar incorrectly argues that a conflict of interest existed because

Mr. Carey’s client, Ms. Sommers, whom he represented in a personal injury action,

was the general manager of Trinity, a cemetery against which Mr. Carey filed an

unrelated suit based on improper disinterment on behalf of Ms. Mellette. The

Florida Bar’s argument depends on the assertion that Ms. Sommers’ position as a

general manager made her a material, adverse witness in the Trinity litigation and

therefore, Mr. Carey would automatically be placed in the untenable position of

cross-examining his own client. The undisputed facts show, however, that prior to

hearing on the disqualification motion, Mr. Carey only had notice of a potential

conflict based on a possibility that Ms. Sommers might be a witness.

When Ms. Mellette hired Mr. Carey’s partner to pursue an action against

Trinity, there was no indication that Ms. Sommers, who was not an owner or

officer of Trinity, was an adverse party or a material witness in the Trinity dispute

merely because she was the general manager. Mr. Carey’s partner’s investigation

of the Trinity matter and her communications with Ms. Mellette indicated that Ms.

Sommers had no contact with Ms. Mellette or any involvement in the activities

surrounding the disinterment. Ms. Sommers has acknowledged that while she was

the general manager in charge of Trinity’s daily administrative functions, she had

no direct involvement in disinterments or interments.

13

The Bar has conceded that a conflicts check by Mr. Carey’s partner at the

time Ms. Mellete retained the firm would not have revealed even a potential

conflict of interest caused by the representation of Ms. Sommers and the

representation of Ms. Mellette. Even after the firm connected Ms. Sommers’

employment with Trinity, her role as general manager raised only a possible

conflict. Premature suspicions of potential conflicts do not permit a lawyer to

jettison a client unless or until adequate investigation shows an actual conflict.

Once the potential conflict was raised by Trinity’s counsel in the Motion to

Disqualify served July 2, 2008, the parties agreed to stay litigation in the Trinity

matter until September 26, 2008, which was the first available date for the

disqualification hearing. Trinity’s counsel testified that the issue was “debatable”

and that there was nothing unethical about Mr. Carey waiting to see the basis for

the alleged conflict and to have the judge decide the issue. Even The Florida Bar’s

expert recognized that it is reasonable and appropriate for an attorney to wait for

evidence to be presented at a hearing, but then asserted that waiting was not

necessary in this case to determine whether Ms. Sommers would be a material,

adverse witness. Instead, the Bar’s expert said at some point in time -- he did not

know when, but well prior to the disqualification hearing -- attorneys would more

reasonably have “walked away” sooner.

14

Mr. Carey and his partner met with Ms. Sommers and discussed her

concerns. They explained that the firm’s investigation and information then

known revealed no conflict. Ms. Sommers did not wish to speak about the Trinity

matter and Mr. Carey and his partner did not press her for information. Instead,

they assured Ms. Sommers that they would continue to vigorously pursue her

interests in the personal injury case to the best of their ability. The firm’s

discussions with Ms. Sommers were to an extent reasonably necessary to enable

her to make an informed decision and she approved the firm’s continued

representation of her in her personal injury case.

At the disqualification hearing, for the first time, Trinity’s counsel presented

Mr. Carey with a disinterment contract signed by Ms. Sommers. Subsequently,

Ms. Sommers explained that she has no involvement in disinterments, but does

review the contracts to ensure they were “filled out correctly.” Both experts

testified that the alleged conflict was waivable. Further, it may have been

permissible for Mr. Carey to retain conflicts counsel to conduct any examination of

Ms. Sommers that might at some point become necessary in the Trinity litigation.

Nevertheless, as soon as he reviewed the contract identifying Ms. Sommers as a

potential witness, Mr. Carey took the conservative approach and immediately

withdrew from representing Ms. Mellette in the Trinity matter.

15

Mr. Carey withdrew after the judge had taken the matter under advisement,

but prior to any ruling on the disqualification motion. Mr. Carey’s firm also

withdrew from representing Ms. Sommers in her personal injury case after she

declined to provide informed consent to the continued representation. Importantly,

Mr. Carey waived all fees or right for reimbursement of costs in both actions.

Once the potential conflict was raised, Mr. Carey’s careful evaluation of all

the facts, his discussions with Ms. Sommers and his ultimate withdrawal with

waiver of fees and cost reimbursement after the basis of the alleged conflict was

discovered fully complied with his obligations under Rules 4-1.4(b) and 4-1.7.

ARGUMENT

I. The Referee Correctly Found Respondent Not Guilty of Any Conflict of Interest Proscribed by Rule 4-1.7.

The Florida Bar has not met its burden of showing that the Referee’s finding

of not guilty as to any violation of Rules 4-1.7(a) and (b) is without record support.

The Bar’s argument is that Mr. Carey waited too long to withdraw and should have

recognized sooner that as general manager, Ms. Sommers would automatically be a

material, adverse witness. Mr. Carey acted appropriately, however, in cautiously

considering whether Ms. Sommers’ employment and involvement constituted an

actual conflict. Mr. Carey waited to consider evidence from opposing counsel

regarding Ms. Sommers’ alleged role, which was not divulged until the

disqualification hearing. Although Mr. Carey may have properly sought waivers

16

and potentially been permitted to consider retaining conflicts counsel, upon

discovering Ms. Sommers’ execution of a contract relevant to the Trinity litigation,

Mr. Carey took the conservative approach of withdrawing and waiving all fees and

cost reimbursement.

A factual assessment is necessary when examining whether a direct

adversity conflict exists and whether it precludes representation. In pertinent part,

Rule 4-1.7(a) provides that a lawyer shall not represent a client if: “(1) the

representation of 1 client with be directly adverse to another client; or (2) there is a

substantial risk that the representation of 1 or more clients will be materially

limited by the lawyer’s responsibilities to another client.” (emphasis added).

Although a lawyer ordinarily may not act as an advocate against a person the

lawyer represents in some other matter, even if wholly unrelated, “simultaneous

representation in unrelated matters of clients whose interests are only generally

adverse, such as competing economic enterprises, does not require consent of the

respective clients.” Rule 4-1.7 (cmt). Thus, Rule 4-1.7(a)(1) applies “only when

representation of 1 client would be directly adverse to the other and where the

lawyer’s responsibilities of loyalty and confidentiality of the other client might be

compromised.” Id.

In evaluating Rule 4-1.7(a)(2), the question is whether a lawyer is precluded

from considering, recommending, or carrying out an appropriate course of action

17

for a client; that is, whether the conflict forecloses alternatives otherwise available

to the client. Id. “A possible conflict does not itself preclude the representation.”

Id. Instead, the critical questions are “the likelihood that a conflict will eventuate

and, if it does, whether it will materially interfere with the lawyer’s independent

professional judgment in considering alternatives or foreclose courses of action

that reasonably should be pursued on behalf of the client.” Id.

Mr. Carey’s delay in taking any action for only about 3 months, until the

first available hearing time for the motion to disqualify, was reasonable and

appropriate. Prior to the hearing, he lacked information necessary to analyze the

alleged conflict using the above factors. In conversation with Trinity’s counsel,

Mr. Carey respectfully declined to accept that Ms. Sommers’ employment as

general manager constituted a conflict of interest. “Where there is a dispute over

the disqualification of an attorney and the parties do not agree on the issue

presented, an evidentiary hearing is necessary.” Quality Air Conditioning

Company v. Vrastil, 895 So. 2d 1236 (Fla. 4th DCA 2005).

In Quality, the appellate court held that evidence was insufficient to support

the trial court’s disqualification of a corporation’s attorney based on an allegation

that the attorney for the corporation in a shareholder dispute was a necessary

witness. Id. The only evidence was allegations relating to the attorney’s role in

preparing the shareholder’s agreement that was the subject of the dispute. Id.

18

Although the trial court had said it would issue a decision on the motion to

disqualify after the attorney was deposed, the trial court issued an order granting

disqualification without deposition testimony or an evidentiary hearing. Id. The

appellate court stated, “[d]octrines of fairness dictate that parties who are facing

disqualification of their attorney should be provided adequate opportunity to

present or contest any evidence regarding the attorney’s role as a witness,

especially where a representation has been made that the court would not consider

the motion without such evidence.” Id.

Taking the appropriate steps to investigate a potential conflict of interest is

especially important when a conflict is raised by opposing counsel. The comment

to Rule 4-1.7 warns that in resolving questions of conflict of interest, allegations

raised by an opposing party are to be viewed with caution for they may be misused

as a technique of harassment.1

1 A 1981 Harvard Law Review stated that “disqualification motions based on some alleged violation of a conflict-of-interest principle appear to have become ‘common tools of the litigation process.’” See 94 Harv. L. Rev. 1284, “Conflicts of Interest in Private Practice,” April 1981(internal cites omitted). “Lawyers have discovered that disqualifying opposing counsel is a successful trial strategy, capable of creating delay, harassment, additional expense, and perhaps even resulting in the withdrawal of a dangerously competent counsel.” Id.

Mr. LoNigro acted within his discretion in filing

the Motion to Disqualify and the Referee took no issue with Mr. LoNigro’s

decision to wait until the disqualification hearing to “divulge the basis /

circumstances” surrounding the motion. (RR. P. 2). Likewise, Mr. Carey acted

19

appropriately in waiting to weigh all the circumstances before making any

determination to withdraw from his client’s representation. Even Mr. LoNigro

testified that the issue was debatable and Mr. Carey “[a]bsolutely” had a right to

have a hearing; the issue “had to be decided by a judge.” (T. 163). Mr. LoNigro

opined that there was “nothing unethical” in Mr. Carey wanting to see the basis for

the motion to disqualify or to have it decided by a judge. (T. 163).

Contrary to the Bar’s assertions, the Referee’s factual findings do not

demonstrate as a matter of law that, based on the facts and circumstances then

known to him, Mr. Carey’s representation of Ms. Mellette was directly adverse to

the interests of Ms. Sommers. Similarly, the Referee’s factual findings do not

establish that Mr. Carey’s representation of one or both clients would have been

materially limited by Mr. Carey’s responsibilities to the other client.

A. When Sommers expressed concern, Respondent owed fiduciary duties to both clients and was ethically obligated to carefully evaluate the alleged conflict and the likelihood that Sommers would be a material adverse witness, rather than hastily jettison one or both clients.

Under Florida law, “an attorney may not jettison a client whose continuing

representation becomes awkward.” In re Jet 1 Center, Inc., Debtor, 310 B.R. 649

(Bkrtcy. M.D. Fla. 2004). Further, it is well established that “the party seeking

disqualification of an attorney carries a heavy burden and must meet a high

standard of proof before an attorney is disqualified.” Id. at 654. The Pennsylvania

20

Supreme Court aptly rejected the premise that “the mere possibility that one of the

ethical canons may be transgressed at some indeterminate point in litigation is

sufficient to trigger, without discovery or an evidentiary hearing, the extreme

remedy of disqualification.” Silver v. Downs, 425 A. 2d 359 (P.A. 1981).

Notwithstanding the Bar’s assertion in its Initial Brief that Mr. Carey

“knowingly” engaged in a conflict of interest, Bar counsel acknowledged during

closing argument at the final hearing that the firm’s simultaneous representation of

Ms. Mellette and Ms. Sommers happened inadvertently. (I.B. 13, 37; T. 384). Bar

counsel stated it would not be fair to assert that an immediate conflict check would

have disclosed any conflict when Ms. Mellette hired the firm in March 2008, and

“it would be wrong to say that . . . a conflict check at the time would have divulged

[any conflict].” (T. 383-384).

Ms. Mellette filed her lawsuit on June 12, 2008, against Trinity, not against

Ms. Sommers individually. It is undisputed that Ms. Sommers was not an owner,

officer or director of Trinity. Neither Mr. Carey, nor any member of his firm, has

ever had an attorney / client relationship with Trinity in any matter. Thus, there

can be no allegation that Mr. Carey “switched sides” or that he represented both

parties in the lawsuit that Ms. Mellette filed against Trinity.

Instead, the Bar alleges a conflict of interest because Ms. Sommers, whom

Mr. Carey then represented in an unrelated personal injury case, was employed as

21

general manager at Trinity when Ms. Mellette filed suit against that entity. At that

time, however, the firm had no evidence that Ms. Sommers was involved, at all, in

the underlying substance of Ms. Mellette’s claims. Ms. Leisure testified that the

firm conducted an investigation of both files, which revealed the absence of a

conflict. (T. 187, 191, 201). Ms. Neal also testified that based on her review of the

file and discussions with Ms. Mellette, Ms. Sommers was not involved. (T. 327).

The Bar alleges that Mr. Carey violated Rule 4-1.7 because he should have

recognized by at least June 17, 2008, and before the disqualification hearing on

September 26, 2008, that Ms. Sommers’ position would “likely” make her a

material, adverse witness he would have to depose or cross examine at some point

in the course of the litigation. Nevertheless, Ms. Sommers’ employment status

alone was not a sufficient basis for concluding that she was a material, adverse

witness. Further, the likelihood that an individual may be a material adverse

witness is only one of the factors to be considered in evaluating a potential conflict.

The Bar concludes that “at the latest,” Mr. Carey should have been aware of

a conflict of interest on June 17, 2008, because that was the day Ms. Sommers

expressed her “concerns” during her meeting at the law firm with Mr. Carey and

Ms. Leisure. (I.B. 25). From this demarcation date, however, Mr. Carey remained

counsel of record for Ms. Mellette for no more than 101 days before he withdrew.

As the Bar’s expert recognized, this brief delay did not prejudice either client, but

22

he opined there was “harm to the system.” (T. 262). Importantly, as soon as some

evidentiary basis for an alleged conflict was presented at the September 26, 2008

hearing, Mr. Carey promptly withdrew and waived his claim to fees and costs.

These facts do not support a violation of Rule 4-1.7(a) or (b).

The Bar argues Brown in an attempt to bolster its assertion that Mr. Carey

knew or should have known his simultaneous representation of Ms. Sommers and

Ms. Mellette, however brief, constituted a violation of Rules 4-1.7(a) and (b).

Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008). The facts in Brown, however,

are entirely distinguishable. In Brown, an actual conflict was immediately

apparent to any competent criminal defense lawyer. The case involved an issue of

constructive possession and either defendant A had possession, or defendant B had

possession. Each defendant was directly adverse to the other because both had an

interest in claiming that the gun belonged to the other. The attorney recognized

this obvious conflict and therefore, filed a fraudulent notice of appearance.

By contrast, it was not at all clear before the disqualification hearing that

Ms. Sommers would be an adverse or even relevant witness in the Trinity

litigation. Unlike Brown, Mr. Carey did not recognize that Ms. Sommers’

employment might make her a witness in the Trinity litigation when his partner

first accepted the representation of Ms. Mellette. Trinity’s counsel did not have or

did not provide any substantive basis for the alleged conflict until the

23

disqualification hearing. Upon discovering that Ms. Sommers had potential

involvement in the Mellette matter, Mr. Carey immediately withdrew and waived

his claim to fees and costs, which the Bar’s expert found to be “exceedingly

appropriate.” (T. 262).

B. Respondent acted legally and ethically in deferring any action for approximately 3 months, until the opposing party’s motion to disqualify could be heard, where he had no prior evidence of the basis for the alleged conflict of interest and Mellette agreed to stay the prosecution of her case.

As discussed above, the Bar suggests that this Court should find Mr. Carey

guilty of violating Rule 4-1.7 and suspend him for 30-days because he did not

withdraw from representing Ms. Mellette soon enough. Although he

acknowledged that Rule 4-1.7 gives no guidance as to timing, the Bar’s expert

opined that Mr. Carey took too long to take the correct action. (T. 263). Rule 4-

1.7 imposes no time constraints, however, thus leaving the timing of withdrawal

within the sound discretion and good judgment of the attorney. Nonetheless, the

Bar’s position is that Mr. Carey acted unethically because he did not withdraw

between the date of the complaint against Trinity, June 12, 2008, and the date he

actually withdrew, September 26, 2008, immediately after the disqualification

hearing.

The Bar’s analysis ignores those cases in which a disqualification was

denied or overturned on appeal as premature, because the factual basis for the

24

alleged conflict had not yet been determined. The following cases discussing

motions to disqualify based on an alleged conflict under Rule 4-3.7, Lawyer as

Witness, are instructive.

In 2004, the Fourth District Court of Appeal held that a debtor’s allegation

that creditor’s counsel would be a fact witness was insufficient to require counsel’s

disqualification and reversed the trial court order granting disqualification.

Brooks v. Foster, 889 So. 902 (Fla. 4th DCA 2004). After obtaining a judgment

against Foster, Brooks secured counsel to pursue enforcement proceedings by

which Brooks sought to garnish accounts held by Foster. Foster moved to

disqualify counsel and served him with a notice of taking deposition. Brooks

appealed the trial court order disqualifying counsel.

The appellate court stated that the trial court’s decision to disqualify chosen

counsel was premature and error because “[t]he need to depose a party’s chosen

counsel based on the execution of such statements demonstrate[d] nothing more

than the potential that disqualification will be required.” Id. at 903. “The trial

court’s decision provided Brooks with an extraordinary remedy based on nothing

more than a possibility.” Id. at 904.

The Brooks court cited positively to Singer Island Ltd., Inc., v. Budget

Const. Co., Inc., 714 So. 2d 651 (Fla. 4th DCA 1998). In Singer, a breach of

construction contract case, the issue was whether the respondent contractor

25

voluntarily left a job in progress, or stopped working after dismissal by the

petitioner owner. The owner moved to disqualify the contractor’s counsel on the

basis that he would be a material witness and would have to be deposed as to

critical communications in the case. The Singer court stated that disqualification

of a party’s chosen counsel is an extraordinary remedy and should be resorted to

sparingly, commenting that some motions to disqualify are viewed with skepticism

as they may be filed for tactical or harassing reasons. In Singer, the appellate court

upheld the trial court’s denial of the motion to disqualify because “the petitioner

alleged, at most, only a possibility that disqualification might be necessary.” Id.

The court stated that “[i]f petitioner had waited until after he had deposed opposing

counsel, he might have been able to develop more of a record to support this

motion to disqualify . . . and “[o]n the other hand, counsel’s testimony might well

have convinced petitioner that a motion to disqualify would not have been well-

founded.” Id.

In Silvers v. Google, 2007 WL 141153 (S.D. Fla. 2007), a United States

District Court denied Silver’s motion to disqualify counsel, where Silver stated that

it may, not that it would, call counsel as a witness. Although Silver argued that

counsel was a material witness, the court found that Silver failed to show how

counsel’s testimony would be adverse to his client’s position, “a necessary

condition for disqualification under rule 4-3.7(a).” Id.

26

Just as in the cases cited above, in June 2008, Mr. Carey did not have

sufficient facts to ascertain whether Ms. Sommers would be a material, adverse

witness or if any other grounds for the alleged conflict existed. On July 2, 2008,

Mr. LoNigro served the Motion to Disqualify asserting an apparent conflict of

interest and an appearance of impropriety based on the fact that Ms. Sommers was

employed by Trinity, was a witness in the case and then represented by Mr. Carey

in an unrelated personal injury case. Neither Ms. Sommers, nor Mr. LoNigro,

provided Mr. Carey any factual basis for the alleged conflict of interest until the

disqualification hearing on September 26, 2008. During this time, Mr. LoNigro

and Mr. Carey agreed not to speak with Ms. Sommers regarding her possible

involvement, if any, in the Mellette matter, and Ms. Mellette agreed to have the

prosecution of her case abated until the issue could be resolved at the hearing.

Despite the Bar’s position that by virtue of her position as general manager,

Mr. Carey should have immediately considered her to be a material adverse

witness, courts have held that something more than the allegation of a high level

managerial position is warranted in order to sustain a motion to disqualify. In

Lussi v. Design-Build & Engineering, Inc. 2010 WL 1687079 (S.D. Fla.), the

United States District Court denied defendants’ Motion to Disqualify plaintiff’s

counsel, which was grounded in an alleged violation of Rule 4-1.6. Defendants

argued that plaintiff’s counsel had previously filed other lawsuits against

27

defendants, during which the defendants employed one of the current plaintiffs,

Mr. Rivero, as a “high level manager.” Id. The court noted in a footnote that it

was not provided any affidavits or other evidence establishing Mr. Rivero’s work

responsibilities with the defendants. Id. at FN 2.

The Lussi court acknowledged that the party moving for disqualification

bears the burden of proving grounds and held that defendants had not presented

any evidence to support disqualification. The court stated that the defendants

“must provide the Court with something more than counsel’s argument to support

their statement that [plaintiff’s counsel has] received attorney client privileged

communications from a former high level manager, Rivero.” Id.

In the instant case, there was nothing unethical about Mr. Carey holding the

moving party to its burden of proof and refusing to acquiesce and withdraw based

on an opposing counsel’s unsubstantiated allegation. In addition, Mr. Carey acted

appropriately and within the bounds of his discretion in waiting until there could be

a proper determination regarding whether Ms. Sommers would actually be a

“material” and “adverse” witness in the lawsuit against her employer.

Under the plain meaning of “materiality” it was initially uncertain whether

Ms. Sommers would be a “material” witness in the Trinity litigation. No relevant

information needed to draw such a conclusion was available, until the contract

signed by Ms. Sommers was presented for the first time at the disqualification

28

hearing. Ms. Sommers even clarified in her subsequent testimony in the Trinity

litigation and in the instant case that the extent of her involvement in interments

and disinterments was limited to checking such contracts to make sure they are

“filled out correctly.” (T. 112).

Based on various definitions of “materiality” it is clear that Mr. Carey acted

appropriately in waiting to view the evidence, rather than simply accept opposing

counsel’s suggestion that there was a conflict. This Court has previously

considered the express language and plain meaning of the Rules Regulating The

Florida Bar when evaluating the scope and application of the Rules. See Florida

Bar v. Brake, 767 So. 2d 1163, 1168 (Fla. 2000) (examining the phrase “engaged

in the practice of law” included in the text of Rule 4-8.4(d) and carving out Rule 4-

8.4(d) violations as an exception to the general principle that discipline can be

imposed for misconduct occurring outside the practice of law).

When considering the plain language of a rule or statute, courts have

consulted Black’s Law Dictionary. For example, in State v. Bastos, 985 So. 2d 37,

41 (Fla. 3d DCA 2008), the Third District Court of Appeals relied in part on the

dictionary definition of a “material witness” which is a witness who can “testify

about matters having some logical connection with the consequential facts, esp. if

few others, if any, know about these matters.” Similarly, Black’s Law Dictionary

defines a “material fact” in the context of pleading and practice as follows:

29

one which is essential to the case, defense, application, etc., and without which it could not be supported. One which tends to establish any of issues raised. The ‘material facts’ of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.

Black’s Law Dictionary 977 (6th ed. 1990). Black’s Law Dictionary further

defines “material fact” in the context of “summary judgment” as follows:

In determining what constitutes a genuine issue as to any material fact for purposes of summary judgment, an issue is ‘material’ if the facts alleged are such as to constitute a legal defense or are of such a nature as to affect the result of the action . . . . A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have effect of establishing or refuting one of essential elements of a cause of action or defense . . . and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties.

Id. A similar definition of materiality was enacted by the Florida Legislature for

use in prosecutions for perjury. Florida Statutes, section 837.011 (2004), defines

“material matter” as “any subject, regardless of its admissibility under the rules of

evidence, which could affect the outcome of the proceeding.”

Under any of these definitions of materiality, Mr. Carey would need to

consider Ms. Sommers’ actual involvement in matters related to Ms. Mellette’s

claim before he could reasonably determine the likelihood that she would be a

material adverse witness in the Mellette matter. Because discovery in that case

was abated until the disqualification hearing, Mr. Carey did not have the necessary

facts upon which to conclude that there was a conflict of interest that would

preclude his representation of Ms. Mellette.

30

C. Respondent did not violate Rule 4-1.7 where immediately following the disqualification hearing at which evidence of a potential conflict was first produced, Respondent voluntarily withdrew and waived his fees and costs.

In its Initial Brief, the Bar states that “[e]ven if [Mr. Carey] had obtained an

informed consent, which he did not, he could not reasonably believe that he would

be able to provide competent and diligent representation to each affected client.

Respondent could not ethically represent both clients.” (I.B. 26). This position is

in direct contradiction to the opinions of both experts, Professor Flowers on behalf

of Mr. Carey, and Mr. Hahn on behalf of the Bar who testified that the apparent

conflict was waivable. Mr. Hahn stated “without question” Mr. Carey could have

continued to represent both clients upon written consent waivers from Ms. Mellette

and Ms. Sommers. (T. 260).

Nevertheless, when a document related to Ms. Mellette’s case and

purportedly signed by Ms. Sommers was presented for the first time during the

disqualification hearing, Mr. Carey determined that given the facts and

circumstances then known, withdrawal was appropriate. Although the judge had

taken the matter under advisement, Mr. Carey agreed to withdraw from

representing Ms. Mellette immediately following the disqualification hearing.

Mr. Carey ultimately withdrew from representing Ms. Sommers when she

declined to provide her informed consent to continued representation. Importantly,

however, Mr. Carey also assisted both clients in obtaining new counsel and he

31

waived his claim to any fees and advanced costs to which he would otherwise have

been entitled.

Under these facts, a purported “conflict of interest” lasting a mere 101 days

does not rise to the level of a violation of Rule 4-1.7(a) or (b), particularly where

there is no clear and convincing evidence of any client harm. The Bar’s expert

testified that the “concept of harm” was a “thorny issue” for him in this case. (T.

262). Mr. Hahn resolved the issue by concluding it was more of a “harm to the

system” that Mr. Carey did not withdraw sooner, but such an aspirational analysis

is not sufficient to sustain a finding of unethical conduct.

Further, as discussed in ABA Formal Opinion 92-367, which Professor

Flowers cited, other practical solutions may be available to resolve a conflict issue.

“In some instances, a sufficient solution may be to provide for other counsel, also

representing the litigation client, to deal with the client witness: where local

counsel as well as principal counsel are involved in a litigation, the disqualification

applying to one of these will not ordinarily affect the other.” Id. Also, “a

satisfactory solution may be the retention of another lawyer solely for the purpose

of examining the principal lawyer’s client.” Id. Judge (later Justice) Stevens

suggested this approach in a former client case where after acknowledging ethical

considerations that inhibited the lawyer’s ability to interrogate a witness, he said

the lawyer should have “made an offer to have some other lawyer retained for this

32

limited purpose.” State v. Jeffers, 520 F. 2d 1256, 1264-66 (7th Cir. 1975). See

also, Hastings Law Journal, February 2011, Resolving Client Conflicts by Hiring

“Conflicts Counsel,” by Ronald D. Rotunda. Thus, Mr. Carey did not violate

Rules 4-1.7(a) or (b), but rather took an exceedingly conservative approach when

he withdrew from representing Ms. Mellette upon first receiving evidence that Ms.

Sommers was a potential witness in the Trinity litigation.

II. The Referee Correctly Found that Respondent Discussed the Alleged Conflict with Sommers and Appropriately Concluded that Respondent was Not Guilty of Violating Rule 4-1.4. The Bar has not met its burden of proving that that the Referee’s conclusion

that Mr. Carey did not violate Rule 4-1.4 was clearly erroneous or lacking in

evidentiary support. The Referee made a factual determination that Mr. Carey

discussed Ms. Sommers’ concerns with her. (RR. p 3). The Referee also found

that Mr. Carey advised Ms. Sommers that he did not feel a conflict existed, but

acknowledged that, in retrospect, perhaps he should have obtained a waiver or

consent. (RR. p 3). There is competent substantial evidence in the record to

support these factual findings and the recommendation of not guilty as to Rule 4-

1.4(b), which states “[a] lawyer shall explain a matter to the extent reasonably

necessary to permit the client to make informed decisions regarding the

representation.”

33

Ms. Sommers met with Mr. Carey and Ms. Leisure on June 17, 2008, and

expressed that she “just felt there was a conflict.” (T. 71). Ms. Sommers never

asked Mr. Carey if he would be willing to withdraw from Ms. Mellette’s case, but

she did express concern that her personal injury case would be compromised. (T.

112). Ms. Sommers acknowledged that Mr. Carey said he did not feel there was a

conflict (T. 108), and that both Mr. Carey and Ms. Leisure assured Ms. Sommers

that they were going to pursue her case as vigorously as they could. (T. 112-113).

Ms. Sommers did not ask Mr. Carey to withdraw from her case on June 17, 2008.

(T. 111).

In fact, Ms. Sommers confirmed in her letter dated June 19, 2008, that even

though she was “still uncomfortable” and “concerned” she hoped to be represented

fairly and would not agree to settle for less than $75,000.00 at the upcoming

mediation. (See Exhibit 2, to TFB Exh. 1). In response to her letter, Mr. Carey

called Ms. Sommers and after they spoke, Ms. Sommers she continued to allow

him to represent her. (T. 77).

From June 17, 2008, until September 26, 2008, Ms. Sommers elected to

have the law firm continue pursuing her personal injury case through mediation

and beyond, after having discussed the matter with Mr. Littlewood of the Bar, and

with Mr. Carey and his partner on June 17, 2008. Ms. Sommers requested and

received assurance that the firm would vigorously pursue her case, notwithstanding

34

her “concerns” based on the firm’s representation of Ms. Mellette in the pending

litigation against Trinity.

As stated above, a lawyer is not permitted to “jettison” a client merely

because the representation has become “awkward.” Ms. Sommers did not discuss

the Mellette case with Mr. Carey or disclose any involvement she may have had

prior to the disqualification hearing. Because Mr. LoNigro also did not have or

wish to disclose the “basis / circumstances” for the motion to disqualify, Mr.

Carey’s partner obtained Ms. Mellette’s consent to abate the discovery and

prosecution in her case until the matter could be resolved at the disqualification

hearing. (T. 328). Under these facts, (1) Mr. Carey adequately communicated

with Ms. Sommers to the extent reasonably necessary to allow her to make

informed decisions regarding her representation, and (2) should be found not guilty

of violating Rule 4-1.4(b).

III. The Referee’s Recommendation of Diversion is Fully Supported and Should be Upheld.

A. If this Court determines that the record does not support a

diversion, the case should be remanded to the Referee to conduct a hearing and consider evidence in mitigation and to recommend an appropriate disposition.

If this Court determines that a rule or the Rules of Professional Conduct

have been violated and that sanctions are warranted, the appropriate procedure is to

remand the matter to the Referee to conduct a sanctions hearing. Recently, this

35

Court remanded a case in which the Bar prevailed on appeal of the referee’s not

guilty findings, because the referee had no prior opportunity to hear evidence in

mitigation and aggravation, make factual findings and consider an appropriate

sanction. Florida Bar v. Hines, 39 So. 3d 1196 (Fla. 2010).

This Court has consistently held that mitigating factors are factual findings.

Florida Bar v. Irish, 48 So. 3d 767 (Fla. 2010) (quoting Florida Bar v. Hecker, 475

So. 2d 1240, 1242 (Fla. 1985) (determining “‘referee’s finding as to the existence

[or non-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.”’”). As stated repeatedly by the Bar in the proceedings and

during the final hearing, it was always intended that the guilt and penalty phases

would be bifurcated. (T. 436-440). The Referee specifically inquired and Bar

counsel responded affirmatively when at the conclusion of the trial he asked “[i]f

there was to be a finding of guilt, then we would have another proceeding that

would talk about any type of sanctions, punishment, et cetera?” (T. 454-455).

Likewise, Mr. Carey relied upon Bar counsel’s representations that he would have

a meaningful opportunity to present mitigating evidence, if the Referee should find

him guilty. Accordingly, if this Court should find any violation and determine that

a diversion is not appropriate, the case should be remanded to the Referee to

conduct a sanctions hearing.

36

B. The cases cited by the Bar to support a suspension are distinguishable.

The Bar attempts to analogize the facts of this case to one in which this

Court suspended an attorney for ninety days in January 2008, after she concealed

an improper conflict of interest and made misrepresentations to the court and to her

client. Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008). The Court noted that the

conflict of interest impacted Ms. Brown’s ability to competently represent two

criminal defendants, the passenger and the driver of a vehicle who were both

charged with constructive possession of a firearm discovered in the vehicle in

which they had been riding. Id. at 112-113. The attorney filed a false notice of

appearance, indicating that another attorney represented the passenger while she

represented the driver. Id. at 110. The passenger, however, only met with and

paid Ms. Brown, with no understanding that her defense of him was compromised

by the defense of the driver. Id. As a result, Ms. Brown violated Rules 4-1.3

(competence), 4-1.4(a) (communication), 4-8.4(c) (misrepresentation) and 4-1.7(a)

(conflict of interest).

Ms. Brown not only compromised the integrity of the legal system, but also

detrimentally impacted the substantive rights of her clients who were charged with

felony crimes and thus, were subject to imprisonment, fines and the loss of civil

liberties. The Court noted that a “public reprimand might have been appropriate if

Brown had engaged in only one of the different types of misconduct in which she

37

engaged, but not when all of the rule violations are considered together.” Id. at

113. In sharp contrast to the egregious facts in Ms. Brown’s case, Mr. Carey made

no misrepresentations and his alleged conflict of interest was an isolated instance

of brief duration that resulted in no demonstrable client harm. Also, upon

receiving evidentiary support for the alleged conflict, Mr. Carey voluntarily

withdrew from both representations, assisted the clients in seeking new counsel,

and agreed to forfeit all fees and costs. On these facts, Mr. Carey should be found

not guilty of violating Rule 4-1.7.

The other cases cited by the Bar to support a suspension are equally

distinguishable. In Florida Bar v. Maurice, 955 So. 2d 535 (Fla. 2007), the

attorney was suspended not only for a conflict of interest under Rule 4-1.7(b), but

also for Rules 4-1.1 (competence); 4-1.3 (diligence); 4-1.4(a) (communication);

and 4-3.2 (failure to expedite litigation). In Florida Bar v. Mastrilli, 614 So. 2d

1081 (Fla. 1993), the attorney represented two parties in the same automobile

accident case, filed suit against his own client in the same matter and exposed one

client to significant personal liability. In Florida Bar v. Dunagan, 731 So. 2d 1237

(Fla. 1999), the attorney had a clear conflict of interest in representing the husband

in a dissolution of marriage proceeding that involved joint ownership of a business,

where the attorney had previously represented both the husband and the wife in

matters involving the business.

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The Bar also cites Morse v. Clark, 890 So. 2d 496 (Fla. 5th DCA 2004), a

case in which the appellate court overturned a trial court’s denial of a motion to

disqualify based on an alleged conflict. On appeal, attorneys for petitioners

successfully argued that Charles D. Hood, Jr. then represented Morse in an

unrelated matter and his firm also represented Clark in the underlying case. No

consent or waiver was obtained. The appellate court held that “[s]ince a clear

violation of Rule 4-1.7(a) was established in this case, a conflict of interest

involving a current client, the lower court should have granted Morse’s motion to

disqualify.” Id. at 499. Notably, notwithstanding the clear holding of the appellate

court, a review of the Bar’s membership records shows that Charles D. Hood, Jr.

never received any discipline for the Rule 4-1.7(a) violation.

C. A diversion is supported by the Standards for Imposing Lawyer Sanctions and meets the purposes of lawyer discipline.

In evaluating a recommended sanction, the Standards for Imposing Lawyer

Sanctions consider the following factors:

3.0 GENERALLY In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:

(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.

39

Fla. Stds. Imposing Law. Sancs. 3.0. In this case, neither the Standards nor the

existing case law support a suspension. First, in considering the duty violated, the

Court has previously examined whether the rule violations pertain to “only one of

the different types of misconduct” or whether they violate multiple types of lawyer

obligations. Brown at 113. In contrast to Brown, which implicated many duties

violated, the rule violations in this case all pertain to the same alleged conflict, the

duration of which was a mere few months.

The Bar’s own expert, Mr. Hahn, only faulted Mr. Carey for not

withdrawing sooner. (T. 263). Mr. Hahn agreed, however, that Rule 4-1.7 gives

no guidance regarding how promptly an attorney must act upon an alleged conflict

when a motion for disqualification is filed by an opposing party. (T. 263).

Second, Mr. Carey had no reason to know of any potential conflict of

interest when Ms. Mellette met Ms. Neal and hired the firm on March 5, 2008.

Even the Bar’s expert Mr. Hahn and Bar counsel agreed that a routine conflicts

check would not have disclosed a conflict related to a client’s employer. Also, as

confirmed by Mr. LoNigro, Mr. Carey had no improper motive in waiting until the

disqualification hearing to have evidence presented and the conflict issue decided.

Third, despite Ms. Sommers’ stated concerns, there was no demonstrable

client harm. The Bar’s expert Mr. Hahn even testified that the “thorny issue” for

him in this case was the “concept of harm.” (T. 262). Mr. Hahn “finally resolved

40

that it’s not an issue of harm, actual harm to the client.” (T. 262). Instead, Mr.

Hahn opined that the issue was more of a “harm to the system” and an “appearance

of impropriety.” (T. 262).

Fourth, a significant mitigating factor to be considered is the fact that Mr.

Carey, upon seeing documentary evidence at the disqualification hearing not only

withdrew, but waived his entitlement to any fees or costs in either case, which the

Bar’s expert found to be “exceedingly appropriate.” (T. 262). Mr. Carey has no

prior disciplinary history that would aggravate any disciplinary sanction. Instead,

Mr. Carey has been Board Certified by The Florida Bar in civil trial since 1988,

and Board Certified by the National Board of Trial Advocacy since 1992. (T.

346). Mr. Carey also has an impressive and established history of community

service, which along with other extensive mitigating evidence, would have been

presented at a sanctions hearing had the Referee recommended a finding of guilt

for any of the charged rule violations.

The recommended diversion serves the purposes of discipline, as enunciated

in Florida Bar v. Poplack, 599 So. 2d 116, 118 (Fla. 1992) (citing Florida Bar v.

Lord, 433 So. 2d 983 (Fla. 1983)) in evaluating the recommended discipline. (TR.

18). These purposes are: (1) “the judgment must be fair to society . . . by

protecting the public from unethical conduct and at the same time not denying the

public the services of a qualified lawyer;” (2) the sanction “must be fair to the

41

respondent,” punishing for ethical breaches and yet encouraging reformation and

rehabilitation; and (3) the sanction “must be severe enough to deter others who

might be . . . tempted to become involved in like violations.” Id.

The Bar dismisses the Referee’s recommendation of diversion as

insufficient, but ignores that it did not meet its burden of proving by clear and

convincing evidence that the alleged conduct constituted any ethical violation,

much less a violation warranting discipline. Even if this Court were to find a

conflict existed under Rule 4-1.7, the conduct at issue in this case does not rise to

the level of an ethical violation for which sanctions are warranted. As stated in the

Preamble, the “Rules of Professional Conduct are rules of reason.” The Preamble

further states:

The rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the rules presuppose that whether discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors, and whether there have been previously violations. The Preamble also acknowledges that no disciplinary action should be taken

when a lawyer chooses not to act or acts within certain bounds of discretion and

states:

In the practice of law conflicting responsibilities are often encountered. Difficult ethical problems may arise from a conflict

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between a lawyer’s responsibility to a client and the lawyer’s own sense of personal honor, including obligations to society and the legal profession. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these rules, however, 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. These principles include the lawyer’s obligation to protect and pursue a client’s legitimate interest, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system. In the instant case, the duration of Mr. Carey’s representation of Mellette

from the date the Motion to Disqualify was served on July 2, 2008, until he

voluntarily withdrew immediately after the September 26, 2008 disqualification

hearing, was only 86 days. During this time, and with Ms. Mellette’s full consent,

Mr. Carey abated the prosecution of her case. Upon receiving for the first time at

the disqualification hearing evidence suggesting that Ms. Sommers was likely to be

witness in the Trinity litigation, Mr. Carey immediately withdrew and waived any

claim to fees or costs. The facts in this case do not support a Rule 4-1.7 violation

or the imposition of any permanent discipline, much less a suspension.

D. A diversion is supported by existing law.

The referee appropriately exercised his authority under Rule 3-5.3, which

governs diversion of Bar disciplinary cases to practice and professionalism

enhancement programs and provides in relevant part as follows:

(b) Types of Diciplinary Cases Eligible for Diversion. Disciplinary cases that otherwise would be disposed of by a finding of minor

43

misconduct or by a finding of no probable cause with a letter of advice are eligible for diversion to practice and professionalism enhancement programs; and (h)(2) Diversion at Trial Level After Submission of Evidence. A referee may recommend diversion of a disciplinary case to a practice and professionalism enhancement program if, after submission of evidence, but before a finding of guilt, the referee determines that, if proven, the conduct alleged to have been committed by the respondent is not more serious than minor misconduct.

The conduct at issue in the instant case was certainly no more serious than

minor misconduct. The purported conflict representation was not undertaken

knowingly or with any evil motive when Ms. Mellette hired the firm in March

2008. Upon learning of Ms. Sommers’ “concerns” in June 2008, Mr. Carey

discussed the issue with her and with counsel for her employer, but was provided

no factual basis for the alleged conflict. After the Motion to Disqualify was filed

on July 2, 2008, Mr. Carey remained attorney of record, but stayed the discovery

and prosecution of Ms. Mellette’s case, with her consent, for only 86 days, until

evidence of the alleged conflict was presented at the hearing on the Motion to

Disqualify. That same day, Mr. Carey withdrew from the representation and

waived any claim to fees and costs. (T. 262). The Bar did not present substantial

competent evidence of any actual harm to either client. On these facts, any alleged

violation of Rule 4-1.7 was, at worst, minor.

Moreover, none of the conditions that would presumptively preclude an

admonishment for minor misconduct are present in this case. Rule 3-5.1(b)(1)

44

states that “[i]n the absence of unusual circumstances misconduct shall not be

regarded as minor” if any of the following conditions exist: (A) the misconduct

involves misappropriation of a client’s funds or property; (B) the misconduct

resulted in or is likely to result in actual prejudice (loss of money, legal rights, or

valuable property rights) to a client or other person; (C) the respondent has been

publicly disciplined in the past 3 years; (D) the misconduct involved is of the same

nature as misconduct for which the respondent as been disciplined in the past 5

years; (E) the misconduct includes dishonesty, misrepresentation, deceit, or fraud

on the part of the respondent; or (F) the misconduct constitutes the commission of

a felony under applicable law. Accordingly, the recommended diversion was

appropriate under the Rules Regulating The Florida Bar.

The Standards for Imposing Lawyer Sanctions discussed above were

created, in part, to meet the goal of imposing consistent sanctions for similar

misconduct. The Standards are utilized in determining “acceptable pleas” between

the Bar and respondents, as well as guiding a referee’s recommendations after a

contested matter. Stds. Imposing Law. Sancs. (Preface). As such, uncontested

Reports of Referee approved by this Court may offer some persuasive authority in

considering the range of sanctions imposed for conflicts.2

2 This Court has previously explained while a Court’s own unwritten decision is “not a precedent for a principle of law and should not be relied upon for anything other than res judicata . . . it would not be improper for counsel, in an

Also, prior unpublished

45

Florida Supreme Court Orders approving uncontested Reports of Referee may

assist this Court in evaluating the consistency of discipline. A review of recent

Orders and Reports of Referee establishes that diversions have been approved for

more serious allegations and facts that constituted conflicts of interest.

The recommended diversion in this case is particularly appropriate given the

diversions that have been recommended and approved in the following cases3

effort to persuade a court to adopt a certain position, to refer to such a decision and thereby suggest to the court how it previously viewed the proposition.” Dep’t of Legal Affairs v. District Court of Appeal, 5th District, 434 So. 2d 310, 313 (Fla. 1983). This Court noted that a court “has the records of its own decisions and the judges have the opportunity to discuss such cases collegially.” Id. 3 For privacy concerns, and because diversions are confidential following one year after imposition, names of the respondent attorneys are omitted. The Bar is able to confirm the existence and facts and circumstances of the cited cases.

:

Order dated January 27, 2011, in Case No. SC10-1492, TFB File No. 2008-

11,493(6E) (defendant shareholder alleged a potential conflict of interest and later

filed a motion to disqualify, after which Respondent withdrew from the

representation); Order dated October 5, 2010, in Case No. SC10-1309, TFB File

No. 2010-10,293(13D) (after court imposed sanctions against client and

Respondent, Respondent initially refused to pay his half subjecting his client to the

risk of collection efforts; Respondent later paid his half, satisfying the sanctions

order); Order dated July 12, 2007, in Case No. SC07-102, TFB File No. 2005-

10,830(6C) (Respondent represented a time share condominium association, and

during the same time period, Respondent’s law firm undertook to represent a

46

company that allegedly had some interest that was adverse to the time share

condominium association. “The Florida Bar presented a prima fascia (sic) case,

which, if proven would constitute a conflict.”); and Order dated February 1, 2007,

in Case No. SC06-1601, TFB File No. 2005-31,245(09C) (Respondent represented

husband in a dissolution. After the divorce was final, the former wife attempted to

withdraw 401(k) funds from her account, but was unable to do so without former

husband’s signed consent. Former wife sought Respondent’s help and paid him

$100.00 to assist her in obtaining former husband’s signature. When former wife

went to pick up the executed consent, Respondent told her the former husband

wanted $2,000.00 for his signature on the consent form. Former wife provided

Respondent a $2,000.00 check to deliver to former husband, but later placed stop

payment on the check. Former husband assigned his rights to the $2,000.00 check

to Respondent, who filed suit against the former wife seeking treble damages,

court costs and attorney’s fees. The court entered a Final Summary Judgment for

$8,000.00 plus interest).

By Order dated October 5, 2010, this Court also approved an uncontested

report of referee and directed that an attorney receive an admonishment for minor

misconduct to be administered by a letter from the referee. See Florida Bar v.

Hochman, Case No. SC09-2279, TFB File No. 2009-31,577(18A) and Case No.

SC10-804, TFB File No. 2010-30,463(18A). Hochman had consulted with a

47

prospective client in April 2007, and December 2007, regarding post-dissolution

issues including child custody. Although he paid respondent $275.00 for each

consultation, the former husband did not hire respondent to represent him.

In April 2009, the former husband hired another attorney to represent him in

post-dissolution matters, and in May 2009, the former wife hired respondent to

represent her in the same matters. In June 2009, counsel for former husband

alerted respondent to a conflict of interest. Upon researching her file, respondent

concluded that she could continue to represent the former wife, because all

information respondent obtained during the consultations would be revealed

through discovery. Thereafter, former husband’s counsel filed a motion to

disqualify respondent and set the matter for hearing. On the date of the hearing,

July 28, 2009, respondent filed a motion to withdraw that was granted, but she

retained as earned all consultation and retainer fees she had received from the

former wife.

In Hochman, the respondent attorney entered into a conditional guilty plea

for consent judgment admitting to violations of: Rule 4-1.5(a)(illegal, prohibited

or excessive fee); 4-1.9(a)(conflict of interest involving a former client); and 4-

1.18(a)(b) and (c)(duties owed to prospective clients). In addition to the

admonishment, Hochman was required to undergo at her expense a Law Office

48

Management Assistance, Inc. (LOMAS) evaluation, and to pay restitution of

$2,000.00 to her former client.

Unlike the instant case, the facts in Hochman are egregious. Hochman

virtually switched sides, tried to rationalize a true conflict of interest, and then

retained prohibited fees, until forced to pay restitution as a condition of resolving

the Bar proceeding. Mr. Carey did not switch sides; he properly investigated

whether a potential conflict was an actual conflict after evaluating evidence that his

client might be an adverse, material witness in an unrelated matter. In addition,

Mr. Carey promptly withdrew upon receiving evidence that Ms. Sommers may

become an adverse witness and he waived all fees and costs.

Based on the foregoing cases, the Bar cannot show that a diversion falls

outside the range of existing case law. Rather than providing a comprehensive

analysis of cases addressing conflict situations, the Bar merely requests imposition

of a 30 day suspension without even the opportunity for Mr. Carey to present

extraordinary mitigating evidence and to argue the appropriate sanction to the

referee. The Bar’s limited analysis does not give appropriate consideration to the

standard of review.

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CONCLUSION

The Referee’s finding of not guilty and diversion to a Bar practice and

professionalism enhancement program is supported by substantial credible record

evidence and existing applicable law. Accordingly, Mr. Carey requests that this

Court issue an order approving the Report of Referee in its entirety. In the event

that this Court should find Mr. Carey guilty of any violation, however, a diversion

is nevertheless the appropriate disposition to serve the goals of lawyer regulation in

this case. In the alternative, should this Court determine that a sanction is

warranted, Mr. Carey asks that the case be remanded to the Referee to conduct a

sanctions hearing so that Mr. Carey would have a meaningful opportunity to

present significant evidence in mitigation to be considered in determining the

severity of any sanction to be imposed.

Respectfully submitted,

____________________________________ SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 DEBRA JOYCE DAVIS, ESQUIRE Florida Bar No. 93556 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street, Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent

50

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing Respondent’s

Answer Brief has been furnished by FedEx overnight delivery and electronic

submission via e-file@flcourts.org to the Honorable Thomas D. Hall, Clerk,

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

2300; and true and correct copies have been furnished by U.S. Mail to Troy

Matthew Lovell, Esquire, Bar Counsel, The Florida Bar, 4200 George J. Bean

Parkway, Suite 2580, Tampa, Florida 33607, and to Staff Counsel, The Florida

Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this 16th day of

May 2011.

____________________________________ SCOTT K. TOZIAN, ESQUIRE

CERTIFICATION OF FONT SIZE AND STYLE

The undersigned counsel does hereby certify that this brief is submitted in

14 point proportionally spaced Times New Roman font.

____________________________________ SCOTT K. TOZIAN, ESQUIRE