THE FLORIDA BAR, )
) Case No. SC96979
Petitioner-Appellant, )
)
v. ) TFB Case Nos.
) 1999-51,936(17I)
MELODY RIDGLEY FORTUNATO ) 2000-50,097(17I)
)
Respondent-Appellee. )
_______________________________ )
THE FLORIDA BAR’S INITIAL BRIEF
ADRIA E. QUINTELA, #897000
Bar Counsel
The Florida Bar
5900 North Andrews Avenue
Suite 835
Fort Lauderdale, FL 33309
(954) 772-2245
JOHN ANTHONY BOGGS, #253847
Staff Counsel
The Florida Bar
650 Apalachee Parkway
Tallahassee, FL 32399-2300
(850) 561-5839
JOHN F. HARKNESS, JR., #123390
Executive Director
The Florida Bar
650 Apalachee Parkway
Tallahassee, FL 32399-2300
(850) 561-5839
TABLE OF CONTENTS
PAGE(S)
TABLE OF CONTENTS............................................ i
TABLE OF CASES AND CITATIONS ............................. ii, iii
PRELIMINARY STATEMENT ......................................1
CERTIFICATION OF FONT TYPE, SIZE, STYLE AND ANTI-VIRUS SCAN . 1
STATEMENT OF CASE AND FACTS............................... 2
SUMMARY OF ARGUMENT...................................... 7
ARGUMENT ................................................... 7
I.
SUSPENSION IS THE APPROPRIATE SANCTION FOR
A RESPONDENT WHO PURPOSELY PROVIDES FALSE,
MISLEADING, AND EVASIVE TESTIMONY DURING A
DISCIPLINARY PROCEEDING ...........................7
A.
RESPONDENT LIED TO THE COURT
TIME AND TIME AGAIN ABOUT HER
REASONS FOR NOT COMPLYING WITH
THE ORDERS ENTERED BY THE
FOURTH DISTRICT COURT OF APPEALS
................................................8
B.
RESPONDENT AGAIN LIED TO THE
COURT WHEN SHE STATED THAT SHE
HAD PERFORMED SOME WORK ON THE
ROBBINS CASE, AND THAT SHE HAD A
FILE ...........................................10
II.
THE AGGRAVATING FACTORS REQUIRE AN
ENHANCED SANCTION ...............................13
CONCLUSION................................................. 15
CERTIFICATE OF SERVICE ...................................... 16
i
TABLE OF CASES AND CITATIONS
CASES PAGE(S)
The Florida Bar v. Cibula,
725 So.2d 360 (Fla. 1998) .................................. 11, 12
The Florida Bar v. Corbin,
701 So.2d 334 (Fla. 1997) ..................................... 11
The Florida Bar v. Oxner,
431 So.2d 983 (Fla.1983) .....................................11
The Florida Bar v. Lund,
410 So.2d 922 (Fla. 1982) .....................................12
The Florida Bar v. Williams,
604 So.2d 447 (Fla. 1992) .....................................12
The Florida Bar v. Saphirstein,
376 So.2d 7 (Fla. 1979) .......................................12
The Florida Bar v. Neely,
372 So.2d 89 (Fla. 1979) ......................................12
Florida Bar v. Langford,
126 So.2d 538 (Fla. 1961) .....................................12
The Florida Bar v. Rood,
622 So.2d 974 (Fla. 1993) .....................................13
The Florida Bar v. Colclough,
561 So.2d 1147 (Fla. 1990) ....................................13
ii
TABLE OF CASES AND CITATIONS (continued)
CASES PAGE(S)
Florida Bar v. Segal,
663 So.2d 618 (Fla. 1995).....................................13
Florida Bar v. Kleinfeld,
648 So.2d 698 (Fla. 1994).....................................13
The Florida Bar v. Rightmyer,
616 So.2d 953 (Fla. 1993).....................................13
The Florida Bar v. Merwin,
636 So.2d 717 (Fla. 1994).....................................13
RULES REGULATING THE FLORIDA BAR
Rule 3-4.2 .......................................................4
Rule 3-4.3 .......................................................4
Rule 4-1.3 .......................................................4
Rule 4-1.5 .......................................................6
Rule 4-3.4(c).....................................................4
Rule 4-8.4(a).....................................................4
FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS
Standard 9.22(c) .................................................13
Standard 9.22(e) .................................................14
Standard 9.22(f) .................................................14
Standard 9.22(g) .................................................15
iii
PRELIMINARY STATEMENT
The Florida Bar, Appellant, will be referred to as “the bar” or “The Florida Bar.”
Melody R. Fortunato, Appellee, will be referred to as “respondent”. The symbol “RR”
will be used to designate the report of referee and the symbol “TT” will be used to
designate the transcript of the final hearing held in this matter.
CERTIFICATION OF FONT TYPE, SIZE, STYLE AND ANTI-VIRUS SCAN
Undersigned counsel hereby certifies that the brief of The Florida Bar is
submitted in 14 point, proportionately spaced, Times New Roman font, and that the
computer disk filed with this brief has been scanned and found to be free of viruses by
Norton AntiVirus for Windows.
1
STATEMENT OF THE CASE AND FACTS
On November 9, 1999, The Florida Bar filed a two count complaint against
respondent charging the respondent with the commission of several violations of the
Rules Regulating The Florida Bar in connection with her representation of two clients,
an Austin Scott, Jr. and a Francis Gregory Robbins. This matter was tried on March
15, 2000. The Honorable John L. Phillips entered his report of referee on May 15,
2000.
COUNT I
Respondent represented Austin Scott, Jr., in a family court dispute styled Scott
v. Scott. As part of the representation, respondent filed a Notice of Appeal in the case,
invoking the jurisdiction of the Fourth District Court of Appeal, after the trial court
entered an order in the Scott case. Respondent failed to include the $250 appellate
filing fee with the Notice of Appeal, or an Order of Indigency.
On or about March 19, 1999 the Fourth District Court of Appeal entered an
Order, sua sponte, and ordered the respondent to pay the filing fee or file an Order of
Indigency within 10 days of the date of the Order. That Order, the referee found,
clearly announced the fee was to be paid regardless of whether the appeal was
voluntarily dismissed or adversely dismissed, and stated failure to comply with the
Order would result in dismissal of the cause and may result in court sanctions against
any party or the parties’ attorney. Respondent failed to pay the filing fee, to file an
2
Order of Indigency, or to make any response whatsoever to this Order. A copy of the
Order was admitted into evidence during the bar’s proceedings.
On or about April 9, 1999, the Fourth District Court of Appeal entered yet
another Order dismissing the appeal for failure to pay the filing fee and ordering
respondent to show cause why she should not be held in contempt for her failure to
abide by the March 19, 1999 Order. Respondent was then given ten (10) days to
respond to that Order. The respondent also wilfully disregarded this Order and failed
to make any response whatsoever to this Order. A copy of the Court’s second Order
was admitted into evidence during the bar’s proceedings.
On or about May 5, 1999, the Fourth District Court of Appeal entered yet
another Order assessing a fine of $250 against the respondent for her failure to respond
to the Court’s Orders of March 19, 1999 and April 9, 1999. The Order required
respondent to pay this fine within twenty (20) days. A copy of this Order was admitted
into evidence during the course of the bar’s proceedings. Respondent, for a third time
willingly disregarded the Court’s Order, did not pay the $250 in a timely fashion as
ordered to do so, and failed to file any response whatsoever to this Order, blatantly
disregarding the Court’s directives.
From the evidence submitted, it is clear that respondent willfully and
intentionally disregarded three separate court Orders from the Fourth District Court of
Appeal and never even attempted to file any response to the same.
3
The referee hearing this matter found that respondent gave no credible reason for
her failure to respond to the three Orders of the Fourth District Court of Appeal, or her
failure to comply with the requirements of the Orders. He found that the only
explanation given by respondent for her willful noncompliance involved a vaguely
described medical procedure which was apparently performed on July 21, 1999, well
after the three court Orders were entered. The referee also stated that respondent’s
“testimony was verifiably false, confusing and deliberately misleading.” RR at 3.
Based upon his factual findings the referee found the respondent had violated R.
Regulating Fla. Bar 3-4.2 [Violation of the Rules of Professional Conduct as adopted
by the rules governing The Florida Bar is a cause for discipline.]; 3-4.3 [The
commission by a lawyer of any act that is unlawful or contrary to honesty and justice,
whether the act is committed in the course of the attorney's relations as an attorney or
otherwise, whether committed within or outside the state of Florida and whether or not
the act is a felony or misdemeanor may constitute a cause for discipline.]; 4-1.3 [A
lawyer shall act with reasonable diligence and promptness in representing a client.]; 43.4(
c)[A lawyer shall not knowingly disobey an obligation under the rules of a tribunal
except for an open refusal based on an assertion that no valid obligation exists.]; and
4-8.4(a) [A lawyer shall not violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so through the acts of
4
another.] Despite his factual findings, however, the referee only recommended that
respondent receive a public reprimand in front of the Board of Governors.
COUNT II
On December 18, 1998, Francis Gregory Robbins hired respondent to represent
him in a contemplated modification of visitation or custody action. Mr. Robbins’ former
wife moved to Atlanta, Georgia with his children and Mr. Robbins was interested in
reestablishing his visitation rights. Mr. Robbins and his fiancee, Ms. Harry, met with
respondent at her office, provided her with a $2,500 retainer, and signed a retainer
agreement which stated in pertinent part as follows:
a.
Retainer for Professional Services. I agree to pay a
minimum non-refundable retainer fee of $2,500.00. This
retainer pays for the first $2,500.00 worth of work and effort
(emphasis added) performed by your office. I realize that
this retainer fee is only a minimum fee and that additional
fees may be charged.
Both Mr. Robbins and Ms. Harry testified that they met briefly with respondent
and that Mr. Robbins specifically informed the respondent not to take any action until
she heard from him. Mr. Robbins was not provided with any documents.
Two weeks later Mr. Robbins contacted respondent’s office to advise her he did
not want to proceed with the litigation and was informed by a member of respondent’s
staff that he would be refunded his retainer. He proceeded to call respondent time and
time again, but was not able to reach her instead only reaching a member of her staff.
5
After not receiving a response from the respondent he began to write letters to her
dated May 3, 1999, May 14, 1999 and June 4, 1999 (all of which were admitted into
evidence at the final hearing) attempting to get his money back. He even had to hire
another attorney hoping that the respondent would then call him back, but still he got
no response. He never received a refund of his retainer nor did he ever have any work
performed by respondent on his behalf.
The referee found that at no time did Mr. Robbins discuss the proposed litigation
with respondent or any member of her staff office after the initial meeting on December
18, 1998, and that all discussion after the initial meeting was related to informing the
respondent not to go forward with the litigation and seeking a refund of the retainer.
RR at 5-6. The referee also found that respondent was “...not a credible witness, her
claims of work done on Mr. Robbins’ file are not corroborated by any other evidence,
and the undersigned has serious doubts about the veracity of this testimony by
Respondent.” RR at 5.
The referee, nonetheless, found that respondent was not guilty of R. Regulating
Fla. Bar 4-1.5 [An attorney shall not enter into an agreement for, charge, or collect and
illegal, prohibited, or clearly excessive fee.].
The referee’s report was considered by the bar’s Board of Governors at the
meeting which ended on June 2, 2000. The Board determined to petition for review of
the referee’s disciplinary sanction and seek a suspension.
6
SUMMARY OF ARGUMENT
The referee specifically found that respondent was not a credible witness, that her
testimony was not trustworthy, and in fact, in certain instances, that it was verifiably
false, confusing, and deliberately misleading, yet he only sanctioned her with a public
reprimand. This disciplinary sanction given by the referee is totally inconsistent with
the case law and the Florida Standards for Imposing Lawyer Sanctions. A respondent
who deliberately and continuously lies during disciplinary proceedings and to the court
should receive no less than a suspension.
ARGUMENT
I.
SUSPENSION IS THE APPROPRIATE SANCTION
FOR A RESPONDENT WHO PURPOSELY
PROVIDES FALSE, MISLEADING, AND EVASIVE
TESTIMONY DURING A DISCIPLINARY
PROCEEDING
It is totally inconsistent that the referee found that respondent was not a credible
witness, that her testimony in several instances was evasive, deliberately misleading,
verifiably false, and confusing, yet he nonetheless only recommended a public
reprimand. The case law is overwhelmingly in support of the proposition that a
respondent who lies to the court warrants at a minimum a suspension. It is, in fact,
respondent’s lies to the court that elevate this case to the level of a suspension. What
aggravates the situation further is that there are numerous instances during the final
7
hearing in which the respondent’s testimony was at a minimum evasive and purposely
inaccurate.
A.
Respondent lied to the court time and time again about her
reasons for not complying with the Orders entered by the
Fourth District Court of Appeals.
Respondent, throughout the proceedings, categorically changed her testimony
as to why she failed to comply with the Fourth District Court of Appeals Orders. First,
she states that the reason she did not comply with the Court’s first Order which
required that she submit the filing fee or file an Order of Indigency was due to the fact
that she could not reach her client. TT at 87. Later in the proceedings, however, she
then changes her testimony to state that the filing fee was not paid because the appeal
was voluntarily dismissed by her before it was dismissed by the court. TT at 88-89.
THE COURT:
You dismissed it voluntarily rather than
having it dismissed by the appellate court?
MS. FORTUNATO: Exactly.
Respondent attempted to mislead the court by testifying that her client was not
prejudiced by virtue of the fact that she voluntarily dismissed the appeal prior to the
court dismissing the same. This was purposefully a lie as the referee later found out
that respondent’s Voluntary Dismissal was not filed until June 28, 1999, yet the Fourth
District Court’s dismissal of the appeal was prior to that on April 9, 1999. RR at 3.
This lie was only revealed after respondent had no choice but to provide the Court with
8
a copy of her Notice of Voluntary Dismissal. Had this document not been provided to
the Court the referee would have been left with respondent’s deceptive testimony.
Respondent continues to lie to the court in other instances of being questioned.
For example:
Q:
My question is going to be, that order applies to you in that it states
Melody Ridgley Fortunato is to show cause why a fine or other sanctions
should not be imposed on said attorney for failure to respond?
A.
Yes.
Q.
It also states that attorney shall respond within ten days of the date of this
order?
A.
Yes.
Q.
Did you file a response to this order?
A.
I filed just prior to that (emphasis added) the notice of voluntary dismissal
which is reflected in the last paragraph. TT at 111.
In subsequent questioning, the respondent states as follows:
Q.
When was your voluntary dismissal filed?
A.
Prior to that.
Q.
When?
A.
I don’t have the document in front of me. I’d have to get it. TT at 112 .
Respondent then lied to the court again by stating, for the first time ever during
the entire disciplinary process, that it was a medical condition which prevented her
from complying with these orders. TT at 92. When questioned by bar counsel,
however, respondent admitted that the only time she raised the issue of some vague
medical procedure was when asked by bar counsel why she did not respond in a timely
fashion to the bar’s investigative inquiry, and the medical procedure did not surface as
9
an excuse for the noncompliance with the Fourth District Court of Appeals Orders until
the date of the disciplinary final hearing. TT at 108.
B.
Respondent again lied to the court when she stated that
she had performed some work on the Robbins case, and
that she had a file.
Respondent once again attempted to intentionally mislead the court during the
Robbins portion of the trial. She testified that she had a “file” representing the work
done by her on behalf of Mr. Robbins.
The respondent testified:
The Bar has never requested and never come to my office
to even look at my file. Had they requested the file I would
have produced it to them....They did not ask for copies of
my file. TT at 81.
The evidence, however, revealed that the bar wrote to respondent on several
occasions -July 22, 1999, August 11, 1999, and September 8, 1999, TT at 95, 96
(these letters were all admitted into evidence), and that respondent was specifically
asked to provide her file in the letter dated September 8, 1999, yet did not provide the
same as a response to that letter or to any of the bar’s prior correspondences.
Respondent’s testimony continued to be purposefully confusing, false, and
evasive when she was further questioned on this issue:
Q.
Now you stated during your direct testimony that the Bar never asked you
to produce the file on the Robbins case, never asked you to produce
billing records and that you would have been more than glad to make this
available to us.
10
Do you remember testifying to us?
A.
Yes. But I don’t remember that so maybe I probably did send you my file
then.
Q.
Your testimony is that your sent me your file?
A.
I don’t know. I don’t know. My practice is extremely busy. I can’t
remember what I sent to you. TT at 98.
Obviously, respondent changed her testimony from first testifying that she was
never asked to produce her file on the Robbins case, and then when she was caught in
her deceit, changed her testimony to now state that she must have somehow produced
the file previously. Neither version was true.
It is axiomatic that lying to the court warrants a suspension. See The Florida Bar
v. Cibula, 725 So.2d 360 (Fla. 1998) [91 day suspension]; The Florida Bar v. Corbin,
701 So.2d 334 (Fla. 1997) [90 day suspension]; The Florida Bar v. Oxner, 431 So.2d
983 (Fla. 1983) [60 day suspension].
In Oxner, the respondent in bar disciplinary proceedings in order to secure a
continuance, lied to the trial judge by stating that he had excused a vital witness who
now could not be contacted. Judge Fine (the judge hearing the proceedings) was able
to contact the witness without any difficulty and found that Oxner had never spoken to
the witness about the case. The court ordered a sixty day suspension.
In the instant case, like in Oxner, the respondent misrepresented facts to the
referee. She first gave a number of inconsistent and untruthful reasons about her
noncompliance with the directives of the Fourth District Court of Appeals, and she then
11
conjures up a file which she never produced nor could produce even during the final
hearing because in truth and in fact, this file never existed and was merely created by
the respondent to justify her charging Mr. Robbins a $2,500 fee and not doing any
work on his behalf. See also The Florida Bar v. Lund, 410 So.2d 922 (Fla. 1982) [10
day suspension in a case where the respondent was untruthful in his testimony before
a grievance committee].
The court has emphatically stated that “Dishonesty and a lack of candor cannot
be tolerated in a profession built upon trust and respect for the law.” The Florida Bar
v. Williams, 604 So.2d 447, 451 (Fla. 1992). It is for this reason lawyers are
suspended for lying to grievance committees or for making false statements during the
disciplinary process. The Florida Bar v. Saphirstein, 376 So.2d 7 (Fla. 1979) [Sixty
day suspension for attempting to unethically influence a referee and making a false
statement in his initial response to the bar]; The Florida Bar v. Neely, 372 So.2d 89
(Fla. 1979) [Ninety day suspension plus probation for lying and self dealing in a real
estate matter]; Florida Bar v. Langford, 126 So.2d 538 (Fla. 1961) [Lawyer suspended
for eighteen months for testifying falsely before a grievance committee and for
attempting to have another lawyer do likewise to corroborate the false testimony].
While the referee found respondent guilty of the rule violations she was charged
with in Count I, his findings that her testimony was not credible, verifiably false and
evasive is in clear contradiction of his disciplinary sanction and to the case law.
12
The overwhelming precedent from cases where a lawyer has engaged in acts of
misrepresentation or out right perjury during the disciplinary process are suspension
cases. The majority of the cases are significant suspensions. See Cibula; The Florida
Bar v. Rood, 622 So.2d 974 (Fla. 1993) [1 year suspension]; The Florida Bar v.
Colclough, 561 So.2d 1147 (Fla. 1990) [6 month suspension]; Florida Bar v. Segal, 663
So.2d 618 (Fla. 1995), [a three year suspension].
In Florida Bar v. Kleinfeld, 648 So.2d 698 (Fla. 1994), the court stated “Making
a knowing misrepresentation to a tribunal is a serious ethical breach.” The court’s
intolerance for a lawyer’s deceit is best illustrated in the cases where an attorney has
been disbarred for his/her lies. For example, in The Florida Bar v. Rightmyer, 616
So.2d 953 (Fla. 1993), the court ordered disbarment and stated:
We can conceive of no ethical violation more damaging to
the legal profession and process than lying under oath, for
perjury strikes at the very heart of our entire system of
justice---the search for the truth. An officer of the court who
knowingly and deliberately seeks to corrupt the legal
process can logically expect to be excluded from that
process.
See also The Florida Bar v. Merwin, 636 So.2d 717 (Fla. 1994).
II.
THE AGGRAVATING FACTORS REQUIRE AN
ENHANCED SANCTION
Independently of respondent’s numerous misrepresentations to the court, a
number of aggravating factors were present which the referee ignored and which
13
mandate that this case be elevated to the level of a suspension. (All references are to
Florida Standards for Imposing Lawyer Sanctions).
First, under 9.22(c), respondent’s pattern of misconduct should have been
considered by the referee. In the instant case, there were not one, but three separate
appellate Orders which respondent knowingly ignored. To allow a respondent to
simply ignore the Court’s directives strikes at the very heart of our system, for if the
court system is to continue to work we must ensure that lawyers respect the court and
abide by its directives.
Other aggravating factors which the referee failed to consider and which should
have enhanced the disciplinary sanction ordered include 9.22(e), respondent’s bad faith
obstruction of the disciplinary proceeding by intentionally failing to comply with rules
or orders of the disciplinary agency. Evidence was submitted which demonstrated that
respondent failed to reply to the bar’s initial investigative inquiry and correspondence.
TT at 96. It was also shown that respondent failed to appear at a status conference
scheduled by the court and that she failed to comply with the court’s directive that a
witness and exhibit list be prepared prior to trial. TT at 3. These instances point to
deliberate disregard to the judicial process and to obstruction of the disciplinary
proceeding. The referee, however, did not consider this aggravating factor when
assessing his disciplinary sanction.
14
Under 9.22(f), submission of false evidence, false statements, or other deceptive
practices during the disciplinary process is an aggravating factor which can be
considered. At the risk of sounding repetitive, it has been shown that respondent’s
testimony during the disciplinary proceedings was found to be false, misleading,
evasive, and deliberately confusing by the referee. The referee, nonetheless, dismissed
his own findings and while himself recognizing that respondent had lied to him merely
ordered a public reprimand. Respondent attempted to make a mockery of the
proceedings and to fool everyone, including the referee. She time and time again
conjured up facts and when closely questioned on these facts and then caught in her
own lies, changed her testimony or became evasive. To allow a respondent to escape
unscathed from such reprehensible behavior cannot be allowed for it makes a mockery
of the entire disciplinary process. For a referee to make a finding that respondent lied
and then for that same referee to find her not guilty of Count II and to merely publicly
reprimand her is totally inconsistent.
A further aggravating factor which must to be considered is 9.22(g), refusal to
acknowledge the wrongful nature of the conduct. In the instant proceedings, respondent
showed no remorse for her actions, provided no apology, and merely conjured a
number of false and deceptive reasons as to why she did not comply with the appellate
court orders. As to the Robbins case, despite the fact that the referee found it highly
doubtful that she ever did any work on the Robbins case, she demonstrated no remorse
15
for billing this client, for not having done any work on his behalf, and for keeping his
retainer.
CONCLUSION
The case law as so The Florida Standards for Imposing Lawyer Sanctions clearly
support that suspension is the appropriate discipline in this case. Respondent knowingly
violated a court order and then lied to the referee time and time again to cover up her
reasons for not obeying the court order. Respondent also lied to the referee about
having a “file” in the Robbins case to justify the fee charged. Respondent’s conduct
was deceitful. Her motives were corrupt and her actions demonstrated total disrespect
and disregard for the grievance process. Such conduct cannot be tolerated in a member
of The Florida Bar.
Based on the case law and the Standards, the appropriate sanction for violation
of the rules set forth herein is a ninety-one (91) day suspension.
WHEREFORE, The Florida Bar respectfully requests this court to enter an order
suspending the respondent for ninety-one (91) days.
Respectfully submitted,
Adria E. Quintela, # 897000
Bar Counsel
The Florida Bar
5900 North Andrews Avenue, Suite 835
Fort Lauderdale, FL 33309
(954) 772-2245
16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing brief has
been furnished by regular U.S. Mail to Melody R. Fortunato, respondent at 110
Southeast Sixth Street, #1601, Fort Lauderdale, Florida 33301 this ___ day of July,
2000.
Adria E. Quintela
17
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