sc11-267 amended initial brief - florida supreme court
TRANSCRIPT
IN THE SUPREME COURT OF FLORIDA (Before a Referee)
THE FLORIDA BAR, Supreme Court Case Complainant, No. S.C. 11-267 vs. The Florida Bar Files LAWRENCE PHILIP ZOLOT, 2010-51,051 (17C) Respondent. 2010-51,51,830 (17C)
RESPONDENT LAWRENCE PHILIP ZOLOT’S AMENDED INITIAL BRIEF ON APPEAL
Lawrence P. Zolot, Esq. 1011 S. Federal Highway Hollywood, FL 33020 FBN 185601 (954) 981 7116
TABLE OF CONTENTS
Table of Citations -i- Symbols and References P. 1 Statement of the Case Pp. 2-4 Statement of the Facts Pp. 5-16 Summary of Argument Pp. 17-20
Argument Pp. 21-33
I. LAWRENCE PHILIP ZOLOT SHOULD NOT BE DISBARRED FOR REPRESENTATION OF NEWEL HOLLINGSWORTH II. THE ISSUES CONCERNING JORGE CALIXTO ARE NOT THE SUBJECT OF BAR DISCIPLINE III. THE REFEREE SHOULD NOT HAVE AWARDED THE BAR’S COSTS BECAUSE THE RESPONDENT DID NOT HAVE AN OPPORTUNITY TO PREPARE FOR THE COST HEARING AND HE NEVERTHELESS PROVED THAT THERE WERE EXCESSIVE AND UNPROVEN CHARGES Conclusion P. 34 Certificate of Service P. 35 Certificate of Font Size P. 36 Appendix -ii-
TABLE OF CITATIONS Cole v. Kehoe, 710 So.2d 705 (Fla. 4th DCA 1998) P. 27 Community Federal Savings and Loan Association v. Luckenbach, 463 Pa. 472, 261 A. 2d 327, 329-330 (1970) P. 27 Eichman v. Paton, 393 So2d 655 (Fla. 1st DCA 1981) P. 27 Florida Bar v. Corces, 639 So. 2d 604 (Fla. 1994) P. 23 Florida Bar v. Kassier, 730 So.2d 1273 (Fla. 1998) P. 31 Florida Bar v. MacMillan, 600 So. 2d 457, 460 (Fla. 1992) P. 24 Florida Bar v. Pape, 918 So.2d 240 at 243 (Fla. 2005) P. 21
The Florida Bar v Rayman, 238 So.2d 594 (Fla. 1970) P. 30
Florida Bar v. Schiller, 537 So. 2d 993 (Fla. 1989) P. 23 Florida Bar v. Tauler, 775 So. 2d 944 (Fla. 2000) P. 24 Florida Bar v. Thomas, 698 So. 2d 530 (Fla. 1997) P. 23 Florida Bar Rule 4-3.1 P. 30
Florida Bar Rule 5-1.1 P. 25
Fla. Rule of Appellate Procedure 9.020 P. 29
Fla. Stds. Imposing Law. Sancs. 9.3 P. 24
Florida Rule of Civil Procedure 1.090(d) P. 32
-i-
SYMBOLS AND REFERENCES
For the purpose of Respondent's Initial Brief on Appeal, Lawrence Philip
Zolot will be referred to by name or as Respondent, and the Florida Bar will
be referred to as The Florida Bar or the Bar. Other persons will be referred
to by their respective surnames.
References to the transcript of the final hearing will be set forth as T and
page number. References to the Report of Referee will be set forth as R and
page number. References to the telephonic hearing on costs will be set forth
as H and page number. References to the Bar’s exhibits introduced at trial
will be set forth as FBX. Respondent’s exhibits will be referred to RX.
1
STATEMENT OF THE CASE
Lawrence Philip Zolot was admitted to the Florida Bar in 1974.
On or about November 23, 2011 the Florida Bar filed a Petition for
Emergency Suspension with the Supreme Court based on two separate
complaints, one by former personal injury client Newell Hollingswoth,
Florida Bar Case Number 2010-51,051 (17C), and one by Jorge Calixto, the
husband of Yamile Calixto, Respondent’s family law client, Florida Bar
Case Number 2010-51,830 (17C), alleging that Lawrence Philip Zolot had
“failed to handle trust funds appropriately” in the two cases and attached an
affidavit from its auditor along with other documents to justify the Petition.
The Court granted the Petition for Emergency Suspension in Case SC10-
2263 on December 13, 2010, ordering the Respondent to cease representing
any clients within thirty days and to take various other steps to suspend his
practice, which were complied with.
The Florida Bar then filed a Complaint against Lawrence P. Zolot in the
instant case on or abut February 9, 2011 based on the same facts and
documents it had alleged in its Petition for Emergency Suspension, claiming
in the two client matters violations of the Florida Bar Rules of Professional
Regulation in three counts: in Count I “Dishonesty;” in Count II
“Substantive Trust Account Violations;” and in Count III “Failing to
Maintain Trust Accounting Records and Failing to Follow Procedures.”
The case was assigned by the Florida Supreme Court to the Fifteenth
Judicial Circuit and it appointed County Court Judge Frank Castor as the
Referee.
On March 22, 2011 Lawrence Philip Zolot served and filed a general denial
of the Bar’s allegations and then after a court order allowing amendment to
his Answer on June 14, 2011 he pleaded affirmative defenses to the
Complaint (The Order permitting amendment and the affirmative defenses
amendment do not appear to be papers docketed by the Clerk of the Supreme
Court so they are attached hereto in the Appendix).
A final Hearing was held on August 25, 2011. At its conclusion the Referee
directed the Florida Bar’s counsel to prepare a Report finding Lawrence
Philip Zolot guilty of all the allegations in the Bar’s Complaint, ordering him
disbarred for five years, nunc pro tunc, with restitution in the amount of
$130,911.50.
On September 7, 2011 the Bar filed a Request for Payment of Disciplinary
Costs in the amount of $9,755.
On September 9, 2011 the Referee signed the Report, including the cost
award from the Bar’s September 7, 2011 Motion.
Lawrence Philip Zolot objected to the Complainant’s Request for Payment
of Disciplinary Costs on September 12, 2011 and the Court held a brief
telephonic hearing on less than one day’s notice on the issue on September
21, 2012, at which time the Referee denied the Respondent’s objections to
the costs.
The Respondent filed a timely Petition for Review of the Referee’s Report
on November 8, 2011.
4
STATEMENT OF THE FACTS
Since 1974 Lawrence Philip Zolot has been a member of the Florida legal
community without incident until this present case (R 19 and 20), an AV
rated attorney focusing on litigation (T 251), and a community leader
praised in these proceedings by fellow members of the Florida Bar including
former Florida Attorney General Bob Butterworth (R 20-21).
The Respondent admitted at the hearing on August 25, 2011 that he
committed technical violations of the Rules Regulating the Florida Bar and
expressed regret for those infractions (T 32; see also FBX 1-p6 for trust
account errors), which were addressed by Count III of the Florida Bar’s
Complaint herein.
The focus of the August 25, 2011 final hearing and the Referee’s Report
were the allegations of acts of dishonesty and substantial trust account
violations against Lawrence Philip Zolot concerning Newell Hollingsworth
and Jorge Calixto.
5
NEWELL HOLLINGSWORTH
Lawrence Philip Zolot was retained by Mr. Newell Hollingsworth, a
disgruntled personal injury client, who had discharged his prior attorney,
Bradley Hartman. Mr. Hartman had misfiled his case and then
unrealistically boosted Mr. Hollingsworth’s expectations. The Respondent
corrected all the prior attorney’s litigation mistakes concerning jurisdiction
and parties, and objectively informed the client about his prospects,
including recovery of his son’s property damage from the automobile
accident, which had not been demanded previously. After litigation activity
the Respondent obtained an agreement from the client that the case could be
settled for $35,000 if all bills, costs and fees were covered including his
son’s claimed losses, even if it netted Mr. Hollingsworth no money (FBX -
Tab 33-September 7, 2001 letter, T 112).
When the case was settled with the third party for $35,000, Mr.
Hollingsworth’s prior attorney demanded an exorbitant attorney’s charging
lien, in light of his miscues in the case, which had to be litigated for over a
year. Once the trial court resolved the lien for much less than the fee and
cost demand (FBX2-Nov., 2002), Mr. Hollingsworth, as testified to by the
Respondent without contradiction at the disciplinary hearing, reneged on his
authority to settle for no net to him given September 7, 2001, because he
was upset that the charging lien came out of his funds, causing a years long
delay of payment to anyone, in tandem with issues over medical providers
refusing to take less than their full medical bills or being missing (T 101,
111, FBX1-p54-56). Mr. Hollingsworth’s only real complaint was his
perceived lack of communication with the Respondent by telephone in 2009;
he said that he “trusted” Lawrence Philip Zolot at all times and would see
him periodically (T 113 and 115).
Mr. Hollingsworth and all others were made whole and only Mr.
Hollingsworth’s intransigence caused delay (T 250-251). The Respondent
received by agreement less than a full fee (FBX1-Tab 7-p48-the closing
statement). When Mr. Hollingsworth met with Lawrence Philip Zolot in
March 2010 he agreed to a net on a closing statement giving him a $6,150
recovery, Then when he came to the attorney’s office on April 2, 2010, he
demanded $10,000, once again changing the terms of his authority, as he
previously had (and as he did with his prior discharged attorney, see FBX2-
Hartman and Goldfarb Contingency Fee Agreement October, 1998). The
Respondent agreed to the demand to close the matter (FBX1-Tab 10, pp54-
56, 78-79).
A delay occurred in mailing checks to health care providers because of the
odd behavior of Mr. Hollingsworth and his son in not cashing their checks
for a substantial time after April 2, 2010, causing the Respondent to question
what should be done considering the client’s prior inconsistencies (FBX1-
Tab 10-pp.54-56, 78-79).
In his Affirmative Defenses concerning Mr. Hollingsworth the Respondent
stated that all funds the client was entitled to had been distributed to him and
he had suffered no harm.
JORGE CALIXTO
In April, 2005 Jorge Calixto’s wife, Yamile Calixto, executed a Fee
Agreement retaining Lawrence Philip Zolot for dual cases of domestic
violence and dissolution of marriage issues; the agreement included Florida
Bar approved language that stated
8
The Firm shall have a lien on its office files, documents, property or money in its possession for the payment of all sums due it under this Agreement. I/We further authorize the Firm to draw against any monies held by it in trust in connection with the subject matter of this Agreement at any time for fees and costs.
It is specifically agreed that LAWRENCE P. ZOLOT, ESQ. shall have and is hereby granted all general, possessory and retaining liens and all equitable, special and attorney's charging liens upon the client's interest in any and all real and personal property within the jurisdiction of the Court for any balance due, owing and unpaid at the conclusion of the case or the sooner termination of employment. Additionally, notwithstanding any specific right or remedy set forth hereinabove, legal, equitable or otherwise, any right or remedy shall not be exclusive, but shall be accumulative upon all other rights and remedies set forth herein, or allowed by this Agreement or by law. (Rx 1, pp134-135).
After the dissolution aspect of the family law disputes commenced the
parties sold their jointly owned marital residence for net proceeds of
$151,536 and pursuant to an agreement between them the funds were
deposited into Lawrence Philip Zolot’s trust account (FBX1-Tab 14, p40)
and FBX1-Tab19).
Both the dissolution and domestic violence cases were heavily litigated. See
the docket sheet for the Dissolution case was put into evidence by the
Florida Bar (FBX1-10). Mr. Calixto was the subject of multiple domestic
violence injunctions and was not permitted to see his children because of his
actions (FBX1 Tab13, pp. 106-112).
Demonstrating Mr. Calixto’s volatility and threatening nature, the
Respondent provided the Florida Bar a partial transcript of the May 24, 2006
hearing held in the family law case in which tapes of Mr. Calixto’s
telephone calls to his wife after the institution of the cases were played in
their original Spanish and translated for the trial judge by a certified
translator (FBX1-pp.84-101). In the tapes, Mr. Calixto uses numerous
expletives and racial epithets to threaten Mrs. Calixto and her new boy
friend, leaving no doubt that the marriage has been irreparably broken and
documenting the reason she feared for her and her children’s safety:
I am not going to mess around with this. You should be ashamed of yourself for allowing this thing. I am going to go with cops, court, everything. This is going to go to hell. Okay? Because this animal, a------, f------ m----- f-----…(R 1) (FBX1-Tab 13, p. 98).
At the Respondent’s disciplinary hearing, Mr. Calixto confirmed that he was
the subject of multiple domestic violence injunctions (T 207). He further
acknowledged that he had a verbal agreement with Mrs. Calixto that house
funds were going to be paid to her (T 205-206). The Final Judgment made
no equitable distribution, only awarding child support and alimony (FBX
11). Mr. Calixto testified he knew his attorney, Martin Levine, had objected
to the Final Judgment that the trial judge signed on July 31, 2007, and that
years went by without Mr. Levine or the court taking action on his
objections (T 205-206). Mr. Calixto called his lawyer on occasion
regarding creditor contacts but his lawyer never took any action with the
court or the creditors and ultimately he fired Mr. Levine (T 206). The debts
were in Mr. Calixto’s name alone (T 168).
The Final Judgment of Dissolution of Marriage was signed by the trial judge
on July 31, 2007 (FBX11) but Mr. Calixto’s attorney served a Motion to
Alter or Amend Final Judgment or in the Alternative for a Re-Hearing on
August 10, 2007, challenging all the trial judge’s rulings including the
financial issues (FBX1-Tab 13, pp. 141-146). As a consequence the Final
Judgment never became a final order. The docket sheet for the case clearly
demonstrates its lack of finality; the Husband’s Motion is docketed but not
the Final Judgment (FBX 10).
The husband’s attorney, Mr. Levine, agreed that Florida Rule of Appellate
Procedure 9.020 states that a final order with respect to any claim between
the movant and any party against whom relief is sought by the motion or
motions shall not be deemed rendered with respect to any claim between the
movant and any party against whom relief is sought by the motion or
motions, until the filing of a signed written order disposing of all such
motions between such parties (T 179). He claimed that he called the trial
judge’s office but never got a ruling on his motion (T171). The Referee
erroneously commented at the disciplinary hearing “So the final judgment
still stands.” (T 172).
The Florida Bar’s auditor, during the conduct of his compliance audit in this
case, found that by court order $20,590 had been paid out of Respondent’s
trust account, and that Mrs. Calixto had otherwise received another $24,625
from the funds (FBX1-p. 9). Lawrence P. Zolot had filed fees in the
domestic case alone of $47,330 (FBX 14) and the auditor acknowledged that
he did not know how much was charged in the separate domestic relations
matter. (T 227-228). Disbursements to Mrs. Calixto and Lawrence Philip
Zolot for his fees did not start until after Mr. Calixto’s threats to her in court
in May, 2006.
12
Concerning Calixto, the Respondent stated in his affirmative defenses that
the Rules Regulating the Florida Bar concerning Trust Accounts did not
preclude the retention of money or other property upon which a lawyer had a
valid lien for services nor did it preclude the payment of fees from the
proceeds of transactions or collection; further that the Rules Regulating the
Florida Bar concerning Trust Accounts state that controversies as to the
amount of fees are not grounds for disciplinary proceedings unless the
amount is clearly excessive, extortionate or fraudulent; and finally that he
had a right to all funds taken from the Trust Account that were complained
about as the Wife’s retainer agreement specifically permitted him to draw
against any monies held in trust in connection with the subject matter of the
Agreement at any time for fees and costs, and due to the facts of the case
Lawrence Philip Zolot had the right to withdraw them.
COST HEARING
On September 7, 2011 the Bar served a Request for Payment of Disciplinary
Costs in the amount of $9,755 (See Statement of Costs attached in
appendix).
13
On September 9, 2011 the Referee signed the Bar prepared Report, including
the cost award from the Bar’s September 7, 2011 Motion, but the Report was
not mailed by the Referee’s office until September 13, 2010 (H 5).
Lawrence Philip Zolot objected to the Complainant’s Request for Payment
of Disciplinary Costs on September 12, 2011 and the Court held a brief
telephonic hearing on the issue on September 21, 2012, at which time the
Referee denied the Respondent’s objections to the costs (H 1-28).
That hearing was held on less than 24 hours notice to the Respondent (See
appendix with copy of facsimile to Florida Bar counsel and Lawrence P.
Zolot dated September 20, 2011 at 3:15 PM for a hearing by telephone
September 21, 2011 at 11:30 AM)
At the telephone hearing the morning after the faxed notice The Florida Bar
claimed that its auditor spent 130 hours on the compliance audit in the case
but did not provide any invoices or spread sheets to prove the documentation
of the claimed hours and charged the auditor’s time at $47 per hour, even
though he is paid only $58,000 annually, which on a weekly basis is
substantially less than the stated hourly claim (H 16).
None of the other costs on the Statement of Costs were documented by
invoices or bills (H 6).
MITIGATING FACTS
Lawrence P. Zolot had bi-lateral hip replacement surgery on June 26, 1997
after being unable to work for almost a year prior to his operation. The
recovery period took another year. As a consequence he fell behind on
paying personal income taxes and the federal government sought to seize
money from his office account. Ultimately, to avoid seizures for a limited
period of time until he worked out a settlement plan with the United States,
fees that were earned in the cases subject to the present Florida Bar action
were kept in the trust account and some of Lawrence Philip Zolot’s personal
bills were paid directly from the trust account (T 236-238). The period of
time was limited to approximately two years (T 238).
15
The Florida Bar did not claim that Newell Hollingsworth was not restituted
in his case. However the Referee did not find as a mitigating factor that
Lawrence Philip Zolot had made restitution to the personal injury client as a
mitigating factor (See Referee’s Report).
The Florida Bar did not claim that the Respondent was uncooperative during
the pendency of its investigations and the disciplinary proceedings. To the
contrary, the Bar’s trial exhibits document the numerous inquiries and all the
responses made by Lawrence Philip Zolot, and also demonstrate his
appearance at a pre-hearing deposition at which time he answered all
questions Bar counsel posed (see Florida Bar trial exhibit). The Referee did
not find as a mitigating factor that the Respondent had at all times been
cooperative in these matters.
The Referee found that Lawrence Philip Zolot has a strong reputation for
having good character in the community and been a respected member of the
Florida Bar for a substantial period. The Referee also found that he spent
numerous volunteer hours for the City of Hollywood, Florida in its youth
sports programs (R19-20).
SUMMARY OF ARGUMENT
As the Respondent admitted at the hearing on August 25, 2011, he did
commit technical violations of the Rules Regulating the Florida Bar and
regreted those infractions.
However, he did not commit dishonest or substantive violations of the Rules
justifying disbarment nunc pro tunc. While the Court generally defers to a
referee's findings of fact, "where there are no genuine issues of material fact
and the only disagreement is whether the undisputed facts constitute
unethical conduct, the referee's findings present a question of law that the
Court reviews de novo."
The salient facts in this case are undisputed and therefore the Court should
review this matter de novo.
Regarding Newell Hollingsworth, in instances of claimed mishandling of a
client's funds, where the money was replaced and the client was unharmed,
this Court has approved discipline of the attorney for as little as a 90 day
suspension, and certainly not disbarment, as the Referee herein ruled.
Regarding Calixto, it is well settled that Florida law specifically permits
retaining liens. Controversies as to the amount of fees due under a retaining
lien are not grounds for disciplinary proceedings unless the amount is clearly
excessive, extortionate, or the demand is fraudulent. The portion due a
lawyer may be withdrawn from a trust account as a retaining lien. In this
case Lawrence Philip Zolot’s fees were neither excessive, extortionate or
their demand fraudulent. The Referee should not have ruled on discipline
regarding Calixto’s matters or ordered restitution.
The Respondent’s fees were from monies deposited into his trust account
from the sale of a joint residence. Mr. Calixto knew he was going to lose
the money and for him it was always issues over his children, and his Wife
living with a person of color. “A tenancy by the entireties may be severed by
the implied actions of the parties, including felonious acts on a spouse.” Mr.
Calixto committed assault on his wife and threatened her and everyone else
in the case, destroying the unity of marriage. Mr. Calixto’s stonewalling,
vulgarity, contentiousness including filing a Motion objecting to the Final
Judgment that he never had heard, all displayed in papers provided to the
Bar, caused any ultimate injury he may have suffered, not the Respondent’s
actions.
In addition, that section of the Report regarding the Florida Bar’s costs must
be eliminated or reduced. Under principles of due process, the Respondent
has the absolute right to challenge any costs that were unnecessary,
excessive, or improperly authenticated. The Respondent was denied this
right. As a consequence, the claimed auditor’s costs were unlawfully
awarded.
Furthermore, as the Florida Bar can only prove at most one of its three
counts against the Respondent, that dealing with the least grievous of
accusations, the Bar should only be awarded a percentage of its claimed
costs, or else the Referee has committed an abuse of discretion.
Since the undisputed facts do not constitute unethical conduct with regards
to Counts I and II of the Florida Bar’s Complaint, the Referee's findings
present a question of law that this Court should review de novo and take into
account Lawrence Philip Zolot’s explanation for the technical violations that
occurred pursuant to Count III of the Complaint. As the Respondent
testified, he had double hip replacement surgery which resulted in financial
issues leading to the trust account actions. Although those acts were a
violation of the Rules of Professional Responsibility they do not necessarily
constitute a disbarment offense under the Standards for Imposing Lawyer
Sanctions.
The attorney's trust account violations were technical in nature, the
Hollingsworth money was replaced and the client unharmed, and in Calixto
the fees were condoned under the Florida Bar Rules, and thus in the
circumstances of the present case disbarment is not the proper discipline.
Suspension for time served, already sixteen months, is appropriate in light of
Lawrence P. Zolot’s known character, reputation as a lawyer, and
contributions to the good name of the Florida Bar for his legal and civic
contributions.
20
ARGUMENT
As the Respondent admitted at the hearing on August 25, 2011, he did
commit technical violations of the Rules Regulating the Florida Bar and
regrets those infractions.
However, he did not commit dishonest or substantive violations of the Rules
justifying disbarment nunc pro tunc. While the Court generally defers to a
referee's findings of fact, "where there are no genuine issues of material fact
and the only disagreement is whether the undisputed facts constitute
unethical conduct, the referee's findings present a question of law that the
Court reviews de novo." Florida Bar v. Pape, 918 So.2d 240 at 243 (Fla.
2005).
The salient facts in this case are undisputed and therefore the Court should
review it de novo.
I. LAWRENCE PHILIP ZOLOT SHOULD NOT BE DISBARRED
FOR REPRESENTATION OF NEWELL HOLLINGSWORTH
Regarding Newell Hollingsworth, in instances of mishandling of a client's
funds, where the money was replaced and the client was unharmed, this
Court has approved discipline of the attorney for as little as a 90 day
suspension, and certainly not disbarment, as occurred in this case.
Lawrence Philip Zolot, without dispute in the record, netted Mr.
Hollingsworth more than he would have received had the prior lawyer
settled his case, provided for his medical bills, saw that his son was
reimbursed for his claimed losses, fully litigated the prior attorney’s
charging lien protecting Mr. Hollingsworth’s recovery from far greater
diminution than actually occurred, and reduced his attorney’s fee in light of
the client’s continuing changing posture over these issues. If any medical
bills accounted for have not been paid then the money is in the Respondent’s
trust account for distribution. Mr. Hollingsworth received full restitution.
There is no dispute that the client’s intransigence made for the delay. When
he was willing to execute a closing statement he received a net that was
more than a straight interpretation of his standard fee agreement and the
facts would have produced for him.
The foregoing is uncontroverted in the record and under the case law
justifies no more than a suspension of the Respondent.
Even in misappropriation cases, which Hollingsworth is not, this Court has
made distinctions between isolated instances of misconduct and continuing
patterns of misconduct. See Florida Bar v. Thomas, 698 So. 2d 530 (Fla.
1997) (imposing ninety-day suspension where attorney misappropriated
funds and took an excessive fee but had no prior disciplinary record and
misconduct was isolated incident); Florida Bar v. Corces, 639 So. 2d 604
(Fla. 1994) (suspending attorney for two years for using client funds to pay
personal bills, where misappropriation was an isolated incident and attorney
had fully repaid debt). “[T]he extreme sanction of disbarment is to be
imposed only ‘in those rare cases where rehabilitation is highly improbable.”
Florida Bar v. Schiller, 537 So. 2d 993 (Fla. 1989) (misusing client funds
warranted three year suspension where clients were not injured and attorney
was “genuinely remorseful” and a good candidate for rehabilitation).
Further justification for discipline but not disbarment is found in the Florida
Standards for Imposing Lawyer Sanctions, which state that a referee can
consider mitigation when determining a recommendation for discipline, even
when the presumption is disbarment. See Florida Bar v. MacMillan, 600 So.
2d 457, 460 (Fla. 1992); Fla. Stds. Imposing Law. Sancs. 9.3 (mitigation).
In Florida Bar v. Tauler, 775 So. 2d 944, 948 (Fla. 2000), a case also
involving claimed misappropriation of client funds, the Court held that the
potential for rehabilitation was a significant factor in support of the referee’s
recommendation of suspension over disbarment. The violations and
mitigation found in Tauler are very similar to those in the instant case.
Tauler was found guilty of misuse of client funds and the referee found in
mitigation “personal and emotional problems, positive character and
reputation, timely and good faith restitution, full and free disclosure, and
remorse.” Id. at 945. Success of rehabilitation further supports suspension
over disbarment.
There is no question that the following mitigating factors all apply to the
Respondent’s discipline issues in Hollingsworth:
a. Lawrence Philip Zolot made restitution;
b. Personal physical problems of the Respondent’s led to a temporary tax
issue that is now three years past making rehabilitation likely;
c. Lawrence Philip Zolot’s good character, legal reputation and work in
the community--Calixto was not the first or last time that Lawrence Philip
Zolot by superior work protected those who were harmed from being lost in
“the system” and thereby upheld the highest purposes of the Florida Bar
(See RX 2-the Gallagher case in which a vicious mother’s effort to see her
husband put in jail for false claimed felony child abuse against their children
and his parental rights terminated were thwarted by the Respondent);
d. No prior bar discipline history;
e. Remorse expressed by the Respondent.
In light of the Court’s precedent in similar factual situations suspension for
time served and no more in Hollingsworth is appropriate.
II. THE ISSUES CONCERNING JORGE CALIXTO ARE NOT
THE SUBJECT OF BAR DISCIPLINE
Regarding the other complainant, Jorge Calixto, it is well settled that the
Florida Bar Rules specifically permit retaining liens. Florida Bar Rule 5-1.1
states in part
(c) Liens Permitted. This subchapter does not preclude the retention of money or other property upon which the lawyer has a valid lien for services nor does it preclude the payment of agreed fees from the proceeds of transactions or collection.
In April, 2005 Mr. Calixto’s wife, Yamile Calixto, executed a Fee
Agreement retaining Lawrence Philip Zolot for domestic violence and
dissolution of marriage issues; the agreement included Florida Bar approved
language that stated
The Firm shall have a lien on its office files, documents, property or money in its possession for the payment of all sums due it under this Agreement. I/We further authorize the Firm to draw against any monies held by it in trust in connection with the subject matter of this Agreement at any time for fees and costs.
It is specifically agreed that LAWRENCE P. ZOLOT, ESQ. shall have and is hereby granted all general, possessory and retaining liens and all equitable, special and attorney's charging liens upon the client's interest in any and all real and personal property within the jurisdiction of the Court for any balance due, owing and unpaid at the conclusion of the case or the sooner termination of employment. Additionally, notwithstanding any specific right or remedy set forth hereinabove, legal, equitable or otherwise, any right or remedy shall not be exclusive, but shall be accumulative upon all other rights and remedies set forth herein, or allowed by this Agreement or by law.
26
There is no dispute that Lawrence Philip Zolot’s fees in these cases were
earned and reasonable, nor that the fees were from monies deposited into his
trust account.
If the funds in question by the Bar were not erroneously claimed by Mr.
Calixto there would no basis for a Bar discipline case because usually the
Bar Rule regarding retention liens would govern.
The funds came from the sale of a joint residence, complicating this issue.
In Cole v. Kehoe, 710 So.2d 705 (Fla. 4th DCA 1998), the Court found that
joint funds can be the subject of an attorney’s fee lien. In Eichman v. Paton,
393 So2d 655 (Fla. 1st DCA 1981), the Court held that “a tenancy by the
entireties may be severed by the implied actions of the parties, including
felonious attacks on a spouse.” It further reiterated with approval that
“(o)ther jurisdictions have recognized that a tenancy by the entireties may be
severed during coverture ‘either by agreement of the parties, actual or
implied or by judicial intervention.’ Community Federal Savings and Loan
Association v. Luckenbach, 463 Pa. 472, 261 A. 2d 327, 329-330 (1970)”
(emphasis supplied). The husband in Eichman attacked his wife and she
needed the money from the joint funds that were being held in trust. The
Court held
We conclude, as did the trial judge, that the unity between the parties which forms the basis for the entireties form of ownership has been dissolved by appellant's felonious act and we consider that strong equitable principles would be frustrated by denying the only practical remedy now available in the wife's behalf which will allow the disastrous effects of appellant's wrongful act to be partially offset. Eichman id. at 657.
Jorge Calixto struck his wife leading to the first domestic violence
injunction, and then had continuing injunctions issued against him for truly
frightening later threats to his wife after he was enjoined from contacting
her. He conceded in the discipline hearing that he knew his wife was going
to receive the house funds. His lawyer, on his approval, objected to the
Final Judgment that the trial judge issued. Yet in his post trial motion he
never brought up the issue of equitable distribution, which was omitted in
the Final Judgment, because he and his lawyer, although the lawyer would
not concede it at the discipline hearing, obviously knew Mrs. Calixto had
received and made use of the house funds for her own needs--in the amount
of $24,625 in addition to other distributed cost monies, as he was not
complying with temporary alimony and child support awards during the
case, and that she had used funds to pay the Respondent for fees to protect
her against him.
Mr. Calixto, by filing the motion for rehearing of the Final Judgment
muddied the waters yet again concerning his case in a stonewalling move.
Florida Rule of Appellate Procedure 9.020 states in part that if a final order
has been entered and there has been filed in the lower tribunal an authorized
and timely motion for new trial or for rehearing the final order shall not be
deemed rendered with respect to any claim between the movant and any
party against whom relief is sought by the motion or motions until the filing
of a signed, written order disposing of all such motions between such
parties. The motion was never disposed of by the Court due to the non action
of the husband’s own attorney and therefore nothing in the Final Judgment
was dispositive on the parties. This non action further demonstrated that the
funds were never devoted for any specific purpose and per Eichman were
used to pay the wife’s fees. Mr. Calixto’s acts caused any ultimate injury
he may have suffered, not the Respondent’s actions.
In order for the Referee to have concluded that Respondent's actions
regarding the money he held in trust warranted disciplinary action with
restitution as part of the judgment, he would have had to find that
respondent's fee claim was "excessive, extortionate, or fraudulent." The fees
clearly were never argued at the hearing by the Bar to be excessive or
extortionate so all it is left with is the “fraudulent” argument. The Referee
should not have found any fraud based on the evidence so that the discipline
and restitution must be rescinded herein. The evidence would have to be
“clear and convincing” concerning fraud which is more than the
“preponderance” test in civil cases, The Florida Bar v Rayman, 238 So.2d
594 (Fla. 1970). The overwhelming evidence of Calixto’s domestic violence
injunctions, attacks, concession as to monies to go to his wife, failure to
object to the lack of equitable distribution, and delaying tactics with his post
trial motion all weigh against fraud by Lawrence P. Zolot. There is no clear
proof of fraud in Calixto and in fact the Rules Regulating the Florida Bar
concerning meritorious claims and contentions, Rule 4-3.1, state it is neither
frivolous and by clear extension not fraudulent to act on a lien for fees which
is already part of Florida jurisprudence, see Eichman, supra.
Therefore the Referee erred in finding that Lawrence P. Zolot had violated
the claimed Bar rules concerning deceit, fraud, and misrepresentation that he
relied upon in finding disbarrable offense with respect to Calixto.
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III. THE REFEREE SHOULD NOT HAVE AWARDED THE BAR’S
COSTS BECAUSE THE RESPONDENT DID NOT HAVE AN
OPPORTUNITY TO PREPARE FOR THE COST HEARING AND
HE NEVERTHELESS PROVED THAT THERE WERE EXCESSIVE
AND UNPROVEN CHARGES
In the Florida Bar v. Kassier, 730 So.2d 1273 (Fla. 1998) the Court held that
it was the responding attorney’s responsibility in a discipline case to prove
that costs were unnecessary, excessive, or unable to be separated between
proven and unproven charges.
In order to meet that burden a respondent should have both the billing or
invoice information for any Bar claimed costs and an opportunity to
investigate them through discovery or other means available under the
Florida Rules of Civil Procedure. Any hearing on a Request for Payment of
Disciplinary Costs should be governed by the same rules which require
adequate notice to a party.
In this case, the Bar certified that it served its Request on September 7, 2011
but it sent the Bar prepared Referee’s Report including its requested costs to
the Referee who signed it on September 9, 2011, and then did not mail it
until September 13, 2011. The Respondent objected to the claimed costs on
September 12, 2011 in response to receipt of the Bar’s Request and the
Referee set a hearing for September 21, 2011 in the AM by fax to the
Respondent on September 20, 2011, clearly violating Florida Rule of Civil
Procedure which requires reasonable notice to all parties regarding the
setting of a hearing, usually considered at a minimum four business days
(without factoring manner of service). See Florida Rule of Civil Procedure
1.090(d).
At the hearing on September 21, 2011, the Bar counsel argued it had no
obligation to give the Respondent any information other than the Request (H
7) and that it used the $47 per hour formula for the auditor costs on direction
from her superiors (H 14); and further the auditor testified he had only
periodic summaries to come up with his over 130 hours allegedly devoted to
the instant case (H 17). Under any version of the rules of evidence, the lack
of records or proof for the amount charged per hour (the Bar seems to be
making a profit on the hourly rate based on the auditor’s annual salary),
would have been adequate to find at the hearing, putting aside the lack of
notice, that the Respondent had proved that the auditor costs, let alone the
other undocumented costs, were excessive, or unable to be separated
between proven and unproven charges.
Despite these obvious evidentiary failings, the Referee awarded the Bar all
its costs. The Bar had its chance to provide the Respondent proof of their
costs, did not, and should not be allowed in this Referee’s report to assess
them.
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CONCLUSION
Lawrence Philip Zolot, the undersigned, truly regrets the violations of the
Florida Bar Rules regarding trust accounts that were committed. As proven,
there were issues that caused them, and not intent to do harm. The Referee’s
recommended discipline is far too harsh under the uncontroverted facts of
this case and the law.
There is no “victim” with respect to the Hollingsworth matter and full
restitution has been made.
The Calixto issues arose of attorney’s fee lien matters with husband Jorge
Calixto and were the results of his actions, the inaction of his attorney and
are not amenable to Bar discipline.
On the record in this case a de novo review demonstrates that the discipline
recommended by the Referee is unjustified, and suspension for time served
due to the Count III violations without restitution would be appropriate in
light of all the mitigating factors proved at the hearing. The costs assessed
in the Referee’s Report should not be approved.
CERTIFICATE OF SERVICE
I hereby certify a copy of the foregoing has been served by US mail on the
2nd day of May, 2012 to:
Ronna Friedman Young, Esq. The Florida Bar 1300 Concord Terrace Suite 130 Sunrise, FL 33323 Kenneth Lawrence Marvin The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399. __________________________ Lawrence P. Zolot, Esq. 1011 S. Federal Highway Hollywood, FL 33020 FBN 185601 (954) 981 7116
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CERTIFICATE OF FONT COMPLIANCE I hereby certify that Florida Rule of Appellate Procedure 9.210 (a)(2)
concerning font requirements has been complied with in this brief.
__________________________ Lawrence P. Zolot, Esq. 1011 S. Federal Highway Hollywood, FL 33020 FBN 185601 (954) 981 7116
36