March is Wild in the Sunshine State. From Swingin’ Fists to Thievin’ Florida Lawyers and Jailhouse Sex Tapes.

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

Supreme Court Case No. SC19-372

The Florida Bar File No. 2017-10,243 (6B)

THE FLORIDA BAR, Complainant,

V.

FRANK T. BLAINEY, Respondent.

REPORT OF REFEREE

SUMMARY OF PROCEEDINGS

Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the following proceedings occurred:

On March 7, 2019, The Florida Bar filed its Complaint against Respondent as well as its Request for Admissions. On March 8, 2019, Chief Justice Charles T. Canady designated the Honorable Anthony Rondolino, Chief Judge of the Sixth Judicial Circuit to appoint a referee. On March 21, 2019, Chief Judge Anthony Rondolino appointed the Honorable Thane Covert, Circuit Judge as referee in Administrative Order No. 2019-018 PA/PI-CR.

A telephonic Case Management Conference (CMC) was scheduled for May 6, 2019, with notice to Respondent who was not represented at the time. Respondent did not appear for the CMC and did not seek to be excused.

Respondent hired counsel, Mr. Brett Alan Geer the day before the CMC who filed a Notice of Appearance on the same day. Respondent’s Answer and his response to the Request for Admissions were late. Appearing for The Florida Bar was Bar Counsel, Ms. Lindsey Margaret Guinand.

Because of Respondent’s failure to appear on May 6, 2019, another CMC was scheduled for June 11, 2019 so Respondent could appear in person. He was thirty (30) minutes late. On June 11, 2019, a Summary Judgment hearing was set for June 28, 2019, and a Final Hearing set for August 30, 2019.

One June 28, 2019, The Florida Bar’s Motion for Summary Judgment was heard. The referee granted Summary Judgment in favor of The Florida Bar finding Respondent guilty of violating Rule 3-4.4 (Criminal Misconduct); Rule 3-7.2(e) (Notice By Members of Determination or Judgment of Guilt of All Criminal Charges); Rule 4-8.4(b) (Misconduct- A lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects); and Rule 4-8.4(g) (Misconduct- A lawyer shall not fail to respond, in writing, to any official inquiry by Bar Counsel or a disciplinary agency).

The Summary Judgment motion was granted within the dictates of State ex rel. Florida Bar v. Evans, 94 So. 2d 730, 735 (Fla. 1957), which states “Due process, however, requires that the accused lawyer shall be given full opportunity to explain the circumstances or otherwise offer testimony in excuse or mitigation of the penalty”.

A Final Hearing on Sanctions was held on August 30, 2019. All items properly filed including pleadings, exhibits in as evidence and the report of the referee constitute the record in this case and are forwarded to the Supreme Court of Florida. Respondent’s counsel proffered REXl & REX2 in as evidence but were excluded for being untimely and not disclosed. The Final Hearing was recorded but not transcribed.

FINDINGS OF FACT

Jurisdictional Statement:

Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida.

Narrative Summary of Case:

Respondent has been a member of the Florida Bar for thirteen (13) years in good standing with no prior

disciplinary action. He has been a sole practitioner for approximately eight to nine (8-9) years.

Respondent practices criminal law and was previously an Assistant Public Defender.

He also practices bankruptcy law and some family law.

Respondent was the only person to testify at the Final Hearing. The referee finds that much of Respondent’s testimony is inconsistent, contradictory and not credible except for historical and verifiable facts. In addition, as the facts demonstrate, Respondent exercised extremely poor judgment in many instances throughout these events that occurred without credible explanation.

Respondent knew James Kelly, the victim, at first as a personal friend and then he represented Mr. Kelly on two (2) matters at the relevant times of these events. One case involved a driving while license suspended (DWLSR) criminal matter and the other was a civil case involving Mr. Kelly suing his family members.

The events leading to this disciplinary action began on the evening of September 4, 2016 into September 5, 2016. Respondent and Mr. Kelly went out for a night of social activities that included visiting friends, eating dinner and consuming alcohol. Respondent consumed approximately five (5) alcohol drinks in six (6) hours and Mr. Kelly consumed approximately the same amount. They travelled to several places in Mr. Kelly’s car throughout the evening. Mr. Kelly drove at all times.

Mr. Kelly had a suspended driver’s license and Respondent knew of this because he was representing Mr. Kelly on the DWLSR criminal case. Respondent did not drive because he too had a suspended driver’s license and was completing a five (5) year suspension for incurring two (2) driving under the influence convictions in 2011 and 2013.

Respondent indicated it was a “poor choice” when questioned about riding with Mr. Kelly knowing he had a suspended driver’s license.

Toward the end of their night out and while Mr. Kelly drove from Ybor City to a friend’s house in Hillsborough County, FL, they began arguing over Respondent’s handling of Mr. Kelly’s civil case. Respondent testified that Mr. Kelly began driving erratically by accelerating double the speed limit and weaving in and out of traffic while yelling and screaming. At one point Respondent tried opening the car door to get out but they continued travelling and he was trapped. Respondent stated that Mr. Kelly’s driving placed him in fear.

Respondent testified that Mr. Kelly stopped the car in a residential neighborhood and immediately began punching Respondent while inside the car.

Respondent punched back and got the better of Mr. Kelly. He described the incident as “two (2) Irish guys brawling” which lasted thirty (30) seconds before they quit.

Respondent got out of the car while screaming at Mr. Kelly, then took the keys from the car and gathered his briefcase while Mr. Kelly was calling the police.

Respondent threw the keys into a nearby yard and told Mr. Kelly that he was going to end up with a DUI. Respondent walked a block away before calling an UBER to drive him home.

Respondent claimed that he acted in self-defense. Respondent also acknowledged that Mr. Kelly should not have been driving due his consumption of alcohol.

Respondent’s explanation for not remaining there while knowing the police were coming is that approximately five (5) years earlier, he was falsely arrested at an Outback Steakhouse for Disorderly Conduct. While having dinner and drinking alcohol with friends, Respondent became engaged in an altercation with another man who assaulted him; however, Respondent was arrested not the other man. The charge was later dismissed.

Regarding the incident with Mr. Kelly, Respondent testified that it was late, he was tired, he got his stuff and didn’t want to get arrested. That is also his explanation for discontinuing his journey to the friend’s house where he previously planned to sleep for the night. He testified at the final hearing that not remaining for the police to arrive was stupid and silly.

A few days later, Respondent was arrested for felony battery. Mr. Kelly claimed to have sustained a broken nose although Respondent now doubts this after talking with Mr. Kelly’s brother, Chad, who is the defendant in the civil case Respondent was prosecuting for Mr. Kelly. It is unknown what injuries Respondent sustained during the altercation.

Respondent testified that he cooperated with law enforcement by turning himself in and doing a “walk-through” at the jail booking process before being released. Respondent hired Mr. Michael Kenny to represent him on the criminal charge.

Sometime after the arrest, Respondent had a meeting with Mr. Kelly and a mutual friend, Robert Esposito, to talk things out and to put it to an end. However, Respondent’s efforts to discourage Mr. Kelly from prosecuting him failed. Respondent believes that Mr. Kelly tried to extort him by keeping the criminal charges pending against him so that Respondent would continue to represent Mr. Kelly in the civil case.

Respondent stated he refused, however, he continued to represent Mr. Kelly on the DWLSR and civil case after his arrest and did not seek to immediately withdraw from either case. Respondent did not advise Mr. Kelly he should seek other counsel.

Respondent offered no explanation for not withdrawing from Mr. Kelly’s cases despite having a conflict of interest.

The Respondent entered into the Pretrial Intervention Program (PTI) diversionary program on the felony charge with the agreement of the State Attorney’s Office. He was placed on supervision with a probation officer and was required to perform community service, to attend anger management, to submit a letter of apology to Mr. Kelly, to pay restitution ($8,464.60) and to pay court costs.

Respondent failed to complete all the terms and conditions of the PTI program and was removed from the program in September of 2017. He failed to timely file a monthly report, he failed to attend two (2) monthly appointments with the probation officer and failed to write a letter of apology to Mr. Kelly.

Respondent did complete anger management, a substance abuse evaluation and treatment and paid some restitution payments. He attempted to get reinstated but that request was denied. Subsequently the case was reopened for criminal prosecution.

Respondent’s explanation for removal from PTI is that the probation officer was not accommodating and strict. On one of the missed appointments, the probation officer scheduled a meeting one month out and would not accommodate Respondent’s tardiness when a mediation he attended ran past time. He also observed the probation officer doing a random visit to his apartment complex.

He explained that he did not submit the letter of apology because he had one year to complete the PTI program and there was no time limit on when it was due despite the probation officer’s insistence that it be completed.

He also had concerns about how he should word the apology as he was concerned about a civil lawsuit by Mr. Kelly. He consulted with his attorney Mr. Kenny before submitting the letter.

It is unclear why Respondent did not reschedule in advance the appointment with the probation officer or the mediation. Respondent offered no further explanation for missing a second appointment or for not filing a monthly report.

On January 19, 2018, Respondent pled guilty to the misdemeanor crime of battery and was adjudged guilty.

He was ordered to complete one (1) year of probation, to pay court costs , to complete twenty-four (24) hours of community service, to pay restitution, to undergo an alcohol and drug evaluation and treatment if necessary (credit given for this while on PTI), to enroll in anger management (credit given for this while on PTI), to write a letter of apology to the victim and to have no contact with the victim.

Respondent successfully completed the terms and conditions of his probation.

Respondent claimed that he pled guilty in his best interest, despite asserting in the Final Hearing that he had a valid defense of self-defense which he intended to pursue. The reason he claimed he pled guilty on the day of his trial was that Mr. Kenny was not prepared for trial. He claimed Mr. Kenny failed to subpoena all the essential witnesses that he provided and failed to order the deposition transcript of Mr. Kelly.

Respondent initially testified that none of his witness appeared for trial but upon cross examination admitted that some of the defense witnesses did appear. He also admitted that at no time did he fire Mr. Kenny or seek post-conviction relief. There was no evidence presented that the Respondent protested his innocence to the court when he pled guilty as in North Carolina v. Alford, 400 U.S. 25 (1970). There was also no evidence presented that he complained to the court about Mr. Kenny or sought a continuance to be better prepared for trial. The record reflects a guilty plea, not a nolo contendere plea.

The referee finds the Respondent’s explanation for entering a guilty plea lacks credibility and common sense. Respondent is an experienced criminal defense attorney and former Public Defender who knows guilty pleas must be freely and voluntarily given under oath before the court. To infer that he pled guilty in his best interest for the reasons he cited suggests the opposite of a plea freely and voluntary given but rather one under duress. The consequences of a guilty plea under these circumstances are significant as well as the conditions that were imposed in the sentence.

He faces professional, personal, financial and civil consequences by his guilty plea.

He blamed his attorney for being ill prepared for trial yet there is no evidence that a continuance was requested, that he brought this to the attention of the presiding judge, that he attempted to discharge Mr. Kenny at any time and that he ever sought post-conviction relief.

Clearly, an accused can enter a plea to a criminal charge in his or her best interest and avoid the risk of uncertain consequences if convicted at trial such as in Alford. In this case it was a felony charge . That is not what happened here according to Respondent. He asserted that he pled guilty because his attorney was not prepared when he desired a trial on the merits and that is not credible. Albeit he may have been concerned about Mr. Kenny’s preparedness for trial. However, to claim at the Final Hearing that is why he entered a guilty plea and that he continues to maintain his innocence is not credible.

Similarly, Respondent blamed his probation officer for the consequences of his rejection from the PTI program. Respondent’ s actions contradict his testimony in that he previously entered into the PTI program voluntari ly to resolve the case and, but for his failure to file a monthly report and keep appointments, the case would have resulted in a dismissal of the felony charge. Instead, because of his non-compliance he faced criminal prosecution and plea bargained for a lesser crime rather than risk going to trial. His actions demonstrate that he tried to resolve the case without a trial rather than maintaining his innocence and asserting self-defense both as a felony and as a misdemeanor charge.

At the Final Hearing Respondent claimed he had strong case of self-defense yet his actions are to the contrary.

His actions of leaving before the police arrived so as to avoid being arrested, trying to dissuade Mr. Kelly from prosecuting, continuing to represent Mr. Kelly despite an obvious conflict of interest, entering and failing at PTI diversionary program and ultimately entering a plea to a lesser charge give little credence to his claim. Respondent’s testimony at the Final Hearing in blaming his probation officer and attorney demonstrates his failure to acknowledge the wrongful nature of his conduct aside from the criminal allegation of which he could have maintained his innocence.

On April 6, 2018, June 18, 2018 and June 20, 2018, The Florida Bar requested, in writing, the status updates regarding Respondent’s compliance with PTI but he failed to respond.

Respondent also failed to inform The Florida Bar of his plea and sentence to battery on January 19, 2018. When Respondent was questioned he indicated that he had no good excuse and was careless.

When Respondent was questioned about his failure to appear at the first CMC on May 6, 2019, he explained that he hired Mr. Geer the night before and he thought it was like a criminal case and did not need to be there until required. He also stated he did not know why he did not appear and did not cite any scheduling conflicts. He could not offer an explanation why his Answer and Request for Admissions were late other than he hired Mr. Geer the day prior to the May 6, 2019 CMC.

His explanation for being thirty (30) minutes late for the second CMC was that he could not explain, overslept, UBER issue, didn’t know he was required to be here (despite the Order Rescheduling Case Management Conference) and because he went to the wrong courthouse. He explained that he Googled the referee’s name which led him to the wrong courthouse. A courthouse that the referee had not been assigned to for two and one-half (2- 1/2) years.

Respondent was referred to Florida Lawyers Assistance, Inc. (FLA) and was evaluated on December 10, 2018. The recommendations of FLA is that Respondent be placed on a three (3) year contract. Respondent has not voluntarily enrolled in treatment with FLA.

Respondent admits that all his prior arrests, twice for DUI, Disorderly Conduct and Battery involved the consumption of alcoholic beverages. In the past he underwent alcohol/substance abuse evaluation and treatment. He stated he has “dealt with it” and believes much of it is related to his dissolution of marriage which ended in 2012-2013 after being separated since 2009. Nevertheless he is willing to participate if ordered to do so knowing that life would change for a time.

Respondent’s prior actions and inactions to these disciplinary proceedings demonstrate an attitude of indifference rather than, as he testified, to having a cooperative attitude .

Respondent testified that he has tremendous remorse and in retrospect made a lot of wrong decisions. He also stated that he misjudged Mr. Kelly and that he wants to put this behind him.

Respondent’ s remorse appeared to be focused on how it has impacted himself rather than on the impact of those who were affected by his poor decisions.

RECOMMENDATION AS TO GUILT

Based on the foregoing, the undersigned recommends that Respondent be found guilty of violating Rule Rule 3-4.4 (Criminal Misconduct); Rule 3-7.2(e)(Notice By Members of Determination or Judgment of Guilt of All Criminal Charges); Rule 4-8.4(b) (Misconduc t- A lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects); and Rule 4-8.4 (g) (Misconduct- A lawyer shall not fail to respond, in writing, to any official inquiry by Bar Counsel or a disciplinary agency).

Violation of Rule 3-4.4 Criminal Misconduct The clear and convincing evidence is that

Respondent violated this Rule by committing a misdemeanor criminal act of personal violence which resulted in personal injury to Respondent’s client.

Violation of Rule 3–7.2 (e) Notice By Members of Determination or Judgment of Guilt of All Criminal Charges

The clear and convincing evidence is that Respondent violated this Rule by failing to respond to three (3) requests of The Florida Bar and failing to inform The Florida Bar of his plea and sentence on January 19, 2018 .

Violation of Rule 4–8.4(b) Misconduct (A lawyer shall not commit a criminal act that reflects adversely on the lawyer’ s honesty, trustworthiness or fitness as a lawyer in other respects)

The clear and convincing evidence is that Respondent violated this rule in committing a battery upon his client, during an argument with the client over his legal representation, then trying to discourage his client from pursuing charges while continuing to represent the client.

Violation of Rule 4–8.4 (g) Misconduct (A lawyer shall not fail to respond, in writing, to any official inquiry by Bar Counsel or a disciplinary agency)

The clear and convincing evidence is that Respondent violated this Rule by failing to respond to the email requests of The Florida Bar on three (3) occasions after Respondent was removed from the

felony PTI program and entered a guilty plea to a misdemeanor battery .

CASE LAW

I considered the following case law prior to recommending discipline:

Florida Bar Jowers, (SC16-1381)(Not Reported in So. 3d, 2016 WL 4399051)(approving a conditional plea and consent judgment suspending respondent for thirty (30) days and on three year probation including FLA after lawyer was convicted of DUI, Violation of Driver’s License Restriction, Battery and failing to timely notify the Bar)

Florida Bar Handfield, 173 So 3d 967 (Fla. 2015)(SC14-1568 Table)(approving an uncontested referee’s report recommending a sixty (60) day suspension, six month probation and public reprimand where respondent committed two federal misdemeanor tax offenses)

Florida Bar Albritton, 177 So 3d 1272 (Fla. 2015)(SClS-278 Table)(approving an uncontested referee’s report on a consent judgment recommending a sixty (60) day suspension where respondent was convicted of four(4) misdemeanors Reckless Driving, Possession of Marijuana, Possession of Paraphernalia and DWLSR.)

Florida Bar v. Conner, (SC17-1360) (Not reported in So. 3d, 2018 WL 460730)(approving an uncontested report of referee recommending a sixty (60) day suspension after committing two (2) DUI misdemeanors)

Florida Bar Nathan, 84 So. 3d 1032 (Fla.2012)(SCll-2177 Table) (approving an uncontested report of referee on a consent judgment recommending ninety (90) day suspension after committing two(2)misdemeanors of Battery and Family Violence and Cruelty to Children in the Third Degree)

Florida Bar v. Fries, 143 3d 923 (Fla. 2014)(SC13-2232 Table) (approving a public reprimand for failing to timely respond to inquiries made by The Florida Bar)

Florida Bar Shestokas, 171 So 3d. 123 (Fla 2015) (SC14-2438 Table) (approving an uncontested referee’s report on a consent judgment recommending a public reprimand for the Respondent’s failure to respond timely respond to grievances on two (2) occasions.)

Florida Bar v. Isis, 552 2d 912 (Fla. 1989) (approving a referees report of disbarment upon the Respondent committing a felony Organized Fraud after Respondent claimed he entered a Alford plea)

Florida Bar v. Pavlick, 504 So 2d 1231 (Fla. 1987) (approving a referee’s report recommending a two (2) year suspension rather than disbarment after the Respondent committed a felony of Accessory After the Fact and entered an Alford plea)

State ex rel Florida Bar v. Evans, 94 So. 2d 730 (Fla. 1957)(Holding that proof of a conviction and adjudication of guilt establishes a prima facie case for disciplinary action and Respondent has the full opportunity to explain the circumstances and otherwise offer testimony in excuse or in mitigation of the penalty)

Florida Bar Mogil, 763 So. 2d 303 (Fla 2000); Florida Bar v. Corbin 701 So. 2d 334 (Fla. 1997)(Improper for referee to consider as an aggravating factor the Respondents continuous denial of the misconduct or lack of remorse)

Florida Bar v. Lawless, 640 2d 1098 (Fla. 1994); Florida Bar v. Adams, 198 So. 3d 593 (Fla 2016)(bar disciplinary action must serve three purposes: the judgment must be fair to society, it must be fair to the attorney, and it must be severe enough to deter other attorneys from similar misconduct)

STANDARDS FOR IMPOSING LAWYER SANCTIONS

I considered the following Standards for Imposing Lawyer Sanctions as adopted by the Board of Governors of The Florida Bar, prior to recommending discipline:

Purpose of Lawyer Discipline Proceedings
Suspension
Public Reprimand
Admonishment
Probation
Other Sanctions and Remedies
Generally
Failure to Maintain Personal Integrity

Suspension is appropriate when a lawyer knowingly engages in criminal conduct which is not included within Standard 5.11 and that seriously adversely affects on the lawyer’s fitness to practice.

Public reprimand is appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.

5. 5.14 Admonishment is appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyer’s fitness to practice law.

AGGRAVATING AND MITIGATING FACTORS

I considered the following aggravating and mitigating factors prior to recommending discipline:

Aggravating

9.22 (d) multiple Offenses

9.22 (g) refusal to acknowledge wrongful nature of conduct.

9. 9.22 (i)

substantial experience in the practice of law.

Mitigating

9.32 (a) absence of a prior disciplinary record

9.32 (b) absence of a dishonest or selfish motive

9.32 (d) timely good faith effort to make restitution or to rectify consequences of misconduct

9.32 (k) imposition of other penalties or Sanctions

9.32 (e) remorse

RECOMMENDATION AS TO DSICIPLINARY MEASURES TO BE APPLIED; COMENTARY THEREON

I recommend that Respondent be found guilty of misconduct justifying disciplinary measures and that he be disciplined by:

1. 1. Thirty (30) day suspension,
   2. Three (3) year contract with FLA,
   3. Attend a professionalism/ethics seminar within 120 days ,
   4. Pay costs reasonably incurred by The Florida Bar from this proceeding.

Prior to recommending discipline, I considered the following:

Personal History of Respondent:

Age: 58 years old

Date admitted to The Florida Bar: November 25, 2006
Prior Discipline: None Board Certifications: None

STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED

Upon review of the Motion to Asses Costs, I find The Florida Bar incurred the following costs to date during these proceedings, and that they are reasonable :

TOTAL                $2,763.97

Manner of Payment:

It is recommended that such costs be charged to the Respondent and that the statutory rate shall accrue and be payable beginning thirty (30) days after the judgment has become final unless a waiver is granted or payment is otherwise deferred by the Board of Governors of the Florida Bar.

Dated this 16th day of September, 2019.

Thane B. Covert, Referee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing Report of Referee has been e-mailed to The Honorable John A. Tomasino , Clerk, Supreme Court of Florida, at e-file@flcourts.org, and mailed to 500 South Duval Street, Tallahassee, Florida 32301; a copy has been e­ mailed to Ms. Lindsey Margaret Guinand, Bar Counsel, The Florida Bar, 2002 North Lois Avenue, Suite 300, Tampa, Florida, 33607-2386 and LGuinand@floridabar.org; a copy has been e-mailed to Mr. Brett Alan Geer at brettgeer@geerlawfirm.com 3030 North Rocky Point Drive West, Suite 150, Tampa, Florida, 633607-7200 and a copy has been e-mailed to Allison Carden Sackett, Interim Staff Counsel, The Florida Bar, Lakeshore Plaza II, 1300 Concord Terrace, Suite 130, Sunrise, Florida, 33323, asackett@floridabar.org.