The Florida Bar v. Baker

810 So. 2d 876, 2002 WL 122151
CourtSupreme Court of Florida
DecidedJanuary 31, 2002
DocketSC96980
StatusPublished
Cited by15 cases

This text of 810 So. 2d 876 (The Florida Bar v. Baker) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Florida Bar v. Baker, 810 So. 2d 876, 2002 WL 122151 (Fla. 2002).

Opinion

810 So.2d 876 (2002)

THE FLORIDA BAR, Complainant,
v.
James Edmund BAKER, Respondent.

No. SC96980.

Supreme Court of Florida.

January 31, 2002.

*877 John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Director of Lawyer Regulation, The Florida Bar,

*878 Tallahassee, FL; and Stephen Christopher Whalen, Assistant Staff Counsel, Tampa, FL, for Complainant.

Joseph A. Corsmeier of Tew, Barnes & Atkinson, L.L.P., Clearwater, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by James Edmund Baker. We have jurisdiction. See art. V, § 15, Fla. Const.

Baker and his ex-wife Ellen owned a home in Dade County (the home) as tenants by the entirety. They lived in New York until approximately April 1997, when Baker relocated to Fort Myers for employment as an attorney for the Lee County School Board. Ellen remained in New York. The couple subsequently had marital problems, and Ellen obtained a restraining order against Baker.

In April 1997, the home became subject to foreclosure, and Baker decided to sell it. Baker located a buyer in July 1997 and executed a contract to sell the home. Baker then retained attorney Larry Parks to represent him in the closing. Prior to closing, Baker signed Ellen's name to several legal documents relating to the sale, including a warranty deed, a power of attorney, a bill of sale, and a Foreign Investor in Real Property Tax Act (FIRPTA) affidavit.[1] The referee found that Ellen did not consent to Baker's signing of her name.

Baker also asked his secretary, Marnell Keller, to notarize the forged signatures. The referee found that Baker never disclosed that he had signed the documents and that he led Keller to believe that Ellen had simply forgotten to have her signature notarized. Keller unlawfully notarized two of the forged signatures.

Baker then sent the documents to Parks, who used them in the July 14, 1997, closing for sale of the home. Baker did not inform Parks that Baker had signed Ellen's name on the documents, nor did he tell Parks that the documents had been unlawfully notarized. The home was sold for a net gain of approximately $29,000, and Baker deposited $20,000 of the proceeds into his personal account. Ellen had no access to the deposited proceeds and received no notice that the home had been sold or that the deposit had been made. Baker claims that the immediate sale of the home was to avoid foreclosure and that the proceeds from the sale of the home were only used to pay marital debt. These claims are not contested by the Bar.

On July 16, 1997, Ellen received blank closing documents and a note from Baker indicating that a buyer had been found for the home. The note requested that Ellen sign and return the blank paperwork. When contacted, Baker refused to give Ellen any details regarding the sale, and Ellen therefore refused to sign the blank paperwork. Ellen learned of the sale of the home in March of 1998. The referee found that the evidence did not support Baker's claims that Ellen knew about and consented to the sale of the home or that she concocted her version of the facts in order to gain an advantage in a custody battle for Baker and Ellen's children.

In his final report, the referee recommended that Baker be found guilty of violating Rules Regulating the Florida Bar 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 another), *879 4-8.4(b) (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 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee recommended disbarment for a minimum period of five years. While Baker has no prior disciplinary history, the referee emphasized that the fraudulent acts committed are major violations, including three forgeries of legally significant documents, which are crimes prosecutable as felonies. The referee also noted that Baker deceived Ellen, caused Keller to unlawfully notarize documents, and caused Parks to close a real estate deal using fraudulent documents. In recommending discipline, the referee considered Baker's personal history and his lack of a disciplinary record as mitigation. The referee also noted in the findings of fact that, at the time of Baker's alleged misconduct, Baker and Ellen were involved in a bitter divorce.

Baker has petitioned this Court to review the referee's findings of fact, conclusions of guilt, and recommendation of discipline. Baker argues that he had a due process right to a separate discipline hearing, that the referee's findings of fact are not supported by the record and do not support the conclusions of guilt, and that the recommended discipline is too harsh. We find that Baker's due process rights were not violated and affirm the referee's findings of fact and conclusions of guilt. We decline, however, to follow the referee's recommendation of discipline and instead suspend Baker for ninety-one days.

Baker's first argument is that the referee violated Baker's due process rights by not giving Baker a separate disciplinary hearing. Due process in Bar disciplinary proceedings requires that an accused attorney be given a full opportunity to explain the circumstances of an alleged offense and to offer testimony in mitigation regarding any possible sanction. See Florida Bar v. Carricarte, 733 So.2d 975, 979 (Fla.1999); Florida Bar v. Pavlick, 504 So.2d 1231, 1234 (Fla.1987). Baker had numerous opportunities to fully explain the circumstances of the alleged offenses and to offer testimony in mitigation.

At the disciplinary hearing, Baker's counsel stated that since Baker's testimony was fully elicited by the Bar's case-in-chief and Baker's counsel was able to introduce all exhibits, Baker would rest his case without calling any witnesses. The proceeding moved to closing arguments, and the referee stated that he wanted to hear arguments from both sides regarding discipline. Bar counsel reminded the referee that proceedings could be bifurcated for purposes of conducting a mitigation hearing, but the referee decided this was unnecessary. Baker made no objection or indication to the referee that Baker needed more time to present additional evidence. At the conclusion of closing arguments, Baker's counsel voluntarily declined the opportunity to submit proposed findings to the court.

Separate hearings regarding disciplinary sanctions are not required as long as an accused attorney receives fair notice of the charges faced. See Florida Bar v. Weed, 559 So.2d 1094, 1096 (Fla.1990) (no error when referee refused Weed's request to present mitigating evidence after, rather than prior to, determination of guilt or innocence); see also Florida Bar v. Vernell, 721 So.2d 705, 707 (Fla.1998). Baker was on notice before the final hearing of a possible disbarment sanction. The complaint served on Baker clearly specified the charges being brought against him, including fraud, criminal acts of forgery, and multiple misrepresentations. The Florida Standards for Imposing Lawyer Sanctions authorize disbarment for such *880 conduct. See, e.g., Fla. Stds. Imposing Law. Sancs. 5.11 (disbarment appropriate when lawyer engages in intentional conduct involving dishonesty). The Bar also specifically requested a disbarment sanction during its closing argument.

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810 So. 2d 876, 2002 WL 122151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-baker-fla-2002.