LAWYERS BEHAVIN’ BADLY IN FLORIDA
MARCH 1, 2021 DISCIPLINARY ACTIONS
FEB 24, 2021 | REPUBLISHED BY LIT: MAR 8, 2021
The Florida Supreme Court in recent court orders disciplined nine attorneys, disbarring four, suspending six, and reprimanding one. One attorney was placed on probation.
Frank T. Blainey, 455 Alt. 19 S., G107, Palm Harbor, suspended for 91 days and probation for three-years effective 30 days following a December 28, 2020, court order. (Admitted to practice: 2006)
In 2016, Blainey was drinking socially with a client, resulting in a physical altercation. On July 20, 2018, Blainey was convicted of misdemeanor battery. In addition to being intoxicated at the time of the incident, Blainey has a history of DUIs and issues with alcohol.
After his arrest, Blainey failed to provide the Bar with updates regarding his criminal case. (Case No: SC19-372)
“Frank Blainey 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.”
Date of birth: Sep 12, 1961
Weight: 190lbs (86kg)
Height: 5′ 11″ (1.80m)
Total arrested: 1
Arrest date: Aug 6, 2013
Supreme Court of Florida
MONDAY, DECEMBER 28, 2020
THE FLORIDA BAR vs. FRANK T. BLAINEY
Having considered the report of the referee, and Respondent having failed to file a response to the order to show cause dated October 30, 2020, the referee’s findings of fact and recommendation as to guilt are hereby approved.
The referee’s recommended discipline, however, is disapproved, (who recommended only 30 days active suspension) and Respondent is instead suspended from the practice of law for ninety-one days, effective thirty days from the date of this order so that Respondent can close out his practice and protect the interests of existing clients.
If Respondent notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Respondent shall fully comply with Rule Regulating the Florida Bar 3-5.1(h).
Respondent shall also fully comply with Rule Regulating the Florida Bar 3-6.1, if applicable. In addition, Respondent shall accept no new business from the date this order is filed until he is reinstated.
Upon his reinstatement, Respondent shall be placed on probation for three years, the conditions of which shall include his participation in a contract with Florida Lawyers Assistance, Inc., and attendance of a professionalism and ethics seminar within 120 days.
Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Frank T. Blainey in the amount of $2,763.97, for which sum let execution issue.
Not final until time expires to file motion for rehearing, and if filed, determined. The filing of a motion for rehearing shall not alter the effective date of this suspension.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL,
and GROSSHANS, JJ., concur.
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,
FRANK T. BLAINEY, Respondent.
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
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 .
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
Other Sanctions and Remedies
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.
- 5.14 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:
9.22 (d) multiple Offenses
9.22 (g) refusal to acknowledge wrongful nature of conduct.
- 9.22 (i)
- substantial experience in the practice of law.
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:
- Thirty (30) day suspension,
- Three (3) year contract with FLA,
- Attend a professionalism/ethics seminar within 120 days ,
- 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 :
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 email@example.com, 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 firstname.lastname@example.org 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, email@example.com.
Lisbeth A. Freeman, P.O. Box 6867, Ft. Myers Beach, disbarred, effective immediately because of her current suspension. (Admitted to practice: 2014)
Freeman was hired to assist in the probate matter of a client’s deceased wife’s estate. Freeman filed a Petition for Administration along with the death certificate and a will but failed to take any further action on the court file and failed to communicate with the client.
Freeman abandoned representing the client and relocated to Pennsylvania without withdrawing from the case or notifying the client.
She failed to respond to The Florida Bar and failed to participate in the disciplinary proceeding. (Case No: SC20-892)
George Crosby Gaskell III
George Crosby Gaskell III, P.O. Box 1111, Stuart, public reprimand and required to complete Ethics School effective January 25 following a January 7 court order. (Admitted to practice: 2007)
Gaskell filed or attempted to file a series of unsuccessful or insufficient bankruptcy petitions in an attempt to save his home from foreclosure.
Four were dismissed because of technical errors or Gaskell’s failure to properly prosecute the proceeding. Three were not accepted by the clerk of court because of technical deficiencies. Gaskell’s unsuccessful efforts to pursue a bankruptcy or negotiate a loan modification caused repeated delays in finalizing the foreclosure case. (Case No: SC20-1005)
The Florida Bar, complainant, files this Complaint against George Crosby Gaskell, III, respondent, pursuant to the Rules Regulating The Florida Bar and alleges:
1. Respondent is and was at all times mentioned herein a member of The Florida Bar admitted on April 19, 2007 and is subject to the jurisdiction of the Supreme Court of Florida.
2. Respondent resided and practiced law in Martin County, Florida, at all times material.
3. The Nineteenth Judicial Circuit Grievance Committee “B” found probable cause to file this complaint pursuant to Rule 3-7.4, of the Rules Regulating The Florida Bar, and this complaint was approved by the presiding member of that committee.
4. In or about 2004, respondent and Whitney Gaskell, respondent’s wife, executed a promissory note and mortgage in the principal amount of approximately
$220,000.00 in favor of Bank of America against respondent’s homesteaded property in Stuart, Florida.
5. In or around 2009, respondent ceased making monthly mortgage payments.
6. On or about May 1, 2012, Bank of America commenced foreclosure proceedings against respondent and his wife in the circuit court in and for Martin County, Florida.
7. On or about September 3, 2014, respondent and his wife consented to a final judgment of foreclosure.
8. The Consented Final Judgment of Foreclosure was entered, providing that the total amount due Bank of America was $233,692.47, and the foreclosure sale was scheduled for January 6, 2015.
9. Thereafter, respondent engaged in a course of conduct lasting over five years where he repeatedly informed the circuit court handling the foreclosure that shortly before each scheduled foreclosure sale that he had filed a petition in bankruptcy, therefore, delaying the foreclosure case.
10. The delays caused Bank of America, and its successors in interest, including, but not limited to, MTGLQ Investors, LP (hereinafter referred to as “MTGLQ”), to incur additional attorney’s fees.
11. Respondent informed the circuit court handling the foreclosure proceeding that he had filed petitions for bankruptcy in March 2015, in November 2016, and again in July 2017.
12. On each occasion, opposing counsel checked the bankruptcy clerk’s docket and found that no petition in bankruptcy had been filed.
13. Although respondent informed the circuit court handling the foreclosure that he had filed petitions in bankruptcy, in actuality, respondent had, in some instances, merely mailed the petitions in bankruptcy to the court, but the petitions were never filed due to technical deficiencies with the petitions.
14. Respondent filed approximately four valid petitions in bankruptcy.
15. These petitions were dismissed by the bankruptcy court due to respondent’s failure to comply with court rules such as failing to file bankruptcy schedules or failing to attend a meeting of the creditors.
16. In January 2018, respondent again represented to the circuit court that he had filed a Chapter 13 petition for bankruptcy.
17. When opposing counsel checked with the clerk of the bankruptcy court, the docket indicated that the case number respondent placed on the suggestion of bankruptcy filed with the circuit court as being an active case, had, in fact, been dismissed by the bankruptcy court approximately seven months before respondent’s misrepresentation.
18. On two occasions, respondent informed the circuit court that he had filed petitions in bankruptcy based upon his mistaken belief that his wife had filed the petitions.
19. Respondent’s wife had never filed the petitions.
20. Respondent failed to inform the circuit court of his inaccurate assertions that petitions in bankruptcy were filed when respondent learned that the petitions were never filed with the bankruptcy court.
21. The circuit court granted the plaintiff’s motion for sanctions by prohibiting respondent from filing any further documents in the foreclosure case unless they were signed by another member of The Florida Bar.
22. An attorney entered an appearance on respondent’s behalf but moved to withdraw shortly thereafter.
23. Respondent moved to disqualify counsel for MTGLQ without a legitimate basis for doing so.
24. Respondent’s motion to disqualify was intended merely to embarrass opposing counsel and/or to further delay the foreclosure proceeding.
25. Respondent’s motion to disqualify opposing counsel was denied as moot.
26. Respondent filed an appeal of the order denying his objection to the sale of his home and directing the clerk to issue a certificate of title to the property on April 14, 2020.
27. Respondent has resided in the subject residence for approximately eleven years without making monthly mortgage payments.
28. Respondent failed to provide a timely written response to the bar’s investigative inquiries.
29. On January 2, 2020, the bar sent respondent a letter to his record bar address directing him to make a written response to the bar’s investigative inquiry on or before January 17, 2020.
30. Respondent failed to make a written response despite the requirements of R. Regulating Fla. Bar 4-8.4(g) that he do so.
31. On January 29, 2020, the bar sent respondent a letter to his record bar address directing respondent to make a written response to the bar’s investigative inquiry on or before February 10, 2020.
32. Respondent failed to make a timely written response despite the requirements of R. Regulating Fla. Bar 4-8.4(g) that he do so.
33. On February 24, 2020, respondent requested an extension of time to file his written response. The bar granted respondent until March 6, 2020 to make his written response to its investigative inquiry.
34. On March 6, 2020, respondent sought a second extension of time to make his written response. The bar granted respondent until March 9, 2020 and advised respondent that no further extensions of time would be granted.
35. Respondent did not provide the bar with a timely written response.
36. Eventually, the bar received a response dated March 9, 2020, but not received until March 31, 2020.
37. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar:
A. 4-3.2(a) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
B. 4-3.3(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence
that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
C. 4-3.4(a) A lawyer must not unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.
D. 4-3.4(b) A lawyer must not fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to a witness for time spent preparing for, attending, or testifying at proceedings.
E. 4-3.4(c) A lawyer must 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.
F. 4-4.4(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.
G. 4-8.4(d) A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.
H. 4-8.4(g) A lawyer shall not fail to respond, in writing, to any official inquiry by bar counsel or a disciplinary agency, as defined elsewhere in these rules, when bar counsel or the agency is conducting an investigation into the lawyer’s conduct. A written response shall be made: (1) within 15 days of the date of the initial written investigative inquiry by bar counsel, grievance committee, or board of governors; (2) within 10 days of the date of any follow-up written investigative inquiries by bar counsel, grievance committee, or board of governors;
(3) within the time stated in any subpoena issued under these Rules Regulating The Florida Bar (without additional time allowed for mailing); (4) as provided in the Florida Rules of Civil Procedure or order of the referee in matters assigned to a referee; and (5) as provided in the Florida Rules of Appellate Procedure or order of the Supreme Court of Florida for matters pending action by that court. Except as stated otherwise herein or in the applicable rules, all times for response shall be calculated as provided elsewhere in these Rules Regulating The Florida Bar and may be extended or shortened by bar counsel or the disciplinary agency making the official inquiry upon good cause shown. Failure to respond to an official inquiry with no good cause shown may be a matter of contempt and processed in accordance with rule 3-7.11(f) of these Rules Regulating The Florida Bar.
WHEREFORE, The Florida Bar prays respondent will be appropriately disciplined in accordance with the provisions of the Rules Regulating The Florida Bar as amended.
Kenneth H. P. Bryk, Bar Counsel The Florida Bar
Orlando Branch Office
1000 Legion Place, Suite 1625
Orlando, Florida 32801-1050
Florida Bar No. 164186
Patricia Ann Toro Savitz, Staff Counsel The Florida Bar
651 E. Jefferson Street Tallahassee, Florida 32399-2300
Florida Bar No. 559547 firstname.lastname@example.org
CERTIFICATE OF SERVICE
I certify that this document was efiled with The Honorable John A. Tomasino, Clerk of the Supreme Court of Florida; with copies provided via email to George Crosby Gaskell, III, at email@example.com and at firstname.lastname@example.org; a copy was furnished to George Crosby Gaskell by U.S. Mail via certified mail No. 7017 1450 0001 4287 3842, return receipt requested, to George Crosby Gaskell, III, whose record bar address is P.O. Box 1111, Stuart, Florida 34995-1111; and, via email to Kenneth H. P. Bryk, Bar Counsel, email@example.com, firstname.lastname@example.org on this 15th day of July 2020.
Patricia Ann Toro Savitz Staff Counsel
NOTICE OF TRIAL COUNSEL AND DESIGNATION OF PRIMARY EMAIL ADDRESS
PLEASE TAKE NOTICE that the trial counsel in this matter is Kenneth H.
P. Bryk, Bar Counsel, whose address, telephone number and primary email address are The Florida Bar, Orlando Branch Office, The Gateway Center, 1000 Legion Place, Suite 1625, Orlando, Florida 32801-1050, 407-425-5424 and email@example.com, and firstname.lastname@example.org. Respondent need not address pleadings, correspondence, etc. in this matter to anyone other than trial counsel and to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, at email@example.com.
MANDATORY ANSWER NOTICE RULE 3-7.6(h)(2), RULES REGULATING THE FLORIDA BAR, PROVIDES THAT A RESPONDENT SHALL ANSWER A COMPLAINT.
Joseph Wimbert Gibson, Jr., 19 W. Flagler St., Suite 417, Miami, suspended for six months, effective 30 days following a January 21 court order. (Admitted to practice: 1982)
Gibson was retained to appeal a conviction but instead filed an insufficient Anders brief to withdraw from the criminal case.
He was sanctioned for failing to assist the client in obtaining a substitute counsel as the court-ordered three times.
Gibson failed to communicate with his client that there was no arguable merit to his case before the brief was filed, and delayed providing a copy of the appeal record to him despite being ordered to do so five times. (Case No: SC19-792)
Jones was found in contempt for failing to respond to an official Bar inquiry. He also failed to respond to the Court’s order to show cause in this matter.
Jones is currently on emergency suspension, effective December 9, 2020, in Case No. SC20-1593.
A petition for emergency suspension is granted by the Florida Supreme Court when The Florida Bar presents clear and convincing evidence that a lawyer appears to be causing great public harm (see Rule 3-5.2(a)) and also constitutes a formal complaint so that the matter is fully investigated and a final disciplinary action is ordered. (Case No: SC20-1406)
Kelliher failed to respond to Bar inquiries and the Florida Supreme Court’s order to show cause.
She is suspended until she fully responds in writing to the Bar inquiry, and until further order of the court.
(Case No: SC20-1622)
During personal litigation proceedings, Lynum repeatedly made statements that disparaged the judiciary, opposing counsels, and other litigants and parties.
Lynum also failed to comply with court orders, and he filed frivolous federal lawsuits. In the disciplinary proceeding, Lynum failed to appear for his scheduled sworn statement and scheduled court appearances, failed to respond to the Bar’s complaint and discovery requests, and failed to appear for the sanction hearing. (Case No: SC20-746)
Universal’s motion, was granted by determining Del Zotto “set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate this matter by unfairly hampering the presentation of Universal’s claim.” https://t.co/0mESj6yy8h https://t.co/ozZ999HEL4 pic.twitter.com/6puSvT0CSn
— LawsInTexas (@lawsintexasusa) February 28, 2021
Maliszewski is a party in a paternity action involving visitation and paternity rights over her child. After becoming aware of a potential paternity action, Maliszewski filed an injunction against the child’s prospective father and had him arrested, resulting in him receiving a no contact order with the child.
On the day the paternity action was filed, Maliszewski, via counsel, voluntarily dismissed the Petition for Injunction. Maliszewski avoided service in the paternity action, refusing to appear in court.
She stopped working, turned off her phone and disappeared with the child.
In a second matter, Maliszewski was appointed and paid $1,000 for a guardian ad litem family law matter and failed to fulfill her duties. She did not respond to The Florida Bar or participate in the disciplinary proceeding. (Case No: SC20-813)
Ollinger engaged in patterns of misconduct, including, but not limited to, misappropriating client’s funds, commingling attorney and client funds, and engaging in conflicts of interest.
A petition for emergency suspension is granted by the Florida Supreme Court when The Florida Bar presents clear and convincing evidence that a lawyer appears to be causing great public harm (see Rule 3-5.2(a)) and also constitutes a formal complaint so that the matter is fully investigated and a final disciplinary action is ordered. (Case No: SC21-28)
Andrew Spark, 13201 Roosevelt Ave., PMB 818085, Flushing, N.Y., disbarred retroactive to July 15, 2019, when he was suspended because of a felony determination of guilt, following a January 21 court order. (Admitted to practice: 1991)
Spark abused his privilege to practice law and used his law license to engage in deception with the intent to access private rooms provided to attorneys in two separate jail facilities for the purpose of soliciting prostitution.
Spark video recorded these encounters with the goal of creating an adult pornographic film for his own prurient and/or financial interest. He pleaded guilty to three separate charges and was ordered in each case to complete probation. (Case No: SC19-1163)
Barbara Jean Throne, P.O. Box 303, Blountstown, 91-day suspension plus attendance at Ethics School and Professionalism Workshop prior to reinstatement, effective 30 days following a January 7 court order. (Admitted to practice: 1988)
After filing a notice of appeal in her client’s criminal case, Throne failed to diligently represent her client and to adequately communicate with him. (Her client was sentenced to 33 years in jail).
Throne failed to respond to numerous communications from the First District Court of Appeal to comply with court rules and orders resulting in the dismissal of her client’s appeal.
Throne also failed to reply to the Bar’s disciplinary complaint and did not comply with the Referee’s pretrial order. (Case No: SC20-537)