The Florida Bar v. D'AMBROSIO

946 So. 2d 977, 31 Fla. L. Weekly Supp. 684, 2006 Fla. LEXIS 2423, 2006 WL 2971696
CourtSupreme Court of Florida
DecidedOctober 19, 2006
DocketSC04-922
StatusPublished
Cited by1 cases

This text of 946 So. 2d 977 (The Florida Bar v. D'AMBROSIO) 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. D'AMBROSIO, 946 So. 2d 977, 31 Fla. L. Weekly Supp. 684, 2006 Fla. LEXIS 2423, 2006 WL 2971696 (Fla. 2006).

Opinion

946 So.2d 977 (2006)

THE FLORIDA BAR, Complainant,
v.
Gerald John D'AMBROSIO, Respondent.

No. SC04-922.

Supreme Court of Florida.

October 19, 2006.

*978 John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, Lorraine C. Hoffman, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, and Yvette M. Trelles, Past Vice Chair, Fifteenth Judicial Circuit Grievance Committee, West Palm Beach, FL, for Complainant.

Kevin P. Tynan of Richardson and Tynan, PLC, Tamarac, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Gerald John D'Ambrosio. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained herein, we disapprove the referee's recommendation that D'Ambrosio be disbarred. Instead, we impose a one-year suspension.

FACTS

The Florida Bar filed a five-count complaint against Gerald John D'Ambrosio alleging that he failed to provide notice of his suspension to his clients and the courts, failed to execute written contingency fee agreements, failed to provide competent *979 representation, charged an excessive fee, and appeared in court while suspended from the practice of law. After holding a hearing, the referee issued a report in which he made the following sparse findings and recommendations.

Count I. D'Ambrosio was retained by Karl Bachert to file a corporate bankruptcy for Reecie's Ristorante Italiano (Reecie's), an Italian restaurant, in which Bachert owned a fifty-one percent interest. There was no written agreement concerning the terms and conditions of D'Ambrosio's employment. Although Bachert paid D'Ambrosio $1450, D'Ambrosio never filed the corporate bankruptcy petition. Bachert discharged D'Ambrosio and retained substitute counsel to file the bankruptcy petition. D'Ambrosio never returned any unearned fees or provided Bachert with any accounting.

Bachert later discovered that D'Ambrosio was the registered agent for Kayk International Trading, Inc., (Kayk), a Florida corporation. After Reecie's closed, Kayk operated a restaurant at the premises where Reecie's was previously located.

Count II. D'Ambrosio was retained by Randy Dennis in connection with Dennis's arrest. Again, there was no written agreement concerning the terms and conditions of D'Ambrosio's employment. D'Ambrosio was paid $3000 in advance for the representation.

In January 2002, the Florida Supreme Court ordered a ninety-day suspension for D'Ambrosio, effective February 22, 2002. D'Ambrosio failed to furnish a copy of his suspension order to Dennis. Further, on March 7, 2002, while his suspension was in effect, D'Ambrosio "appeared on behalf of Randy Dennis" before a Palm Beach County circuit court judge. Dennis later discharged D'Ambrosio and retained other counsel. D'Ambrosio never returned any unearned fee or provided Dennis with an accounting.

Count III. D'Ambrosio was retained by David Friedman in connection with a divorce. During his ninety-day suspension, D'Ambrosio "appeared on behalf of David Friedman" before another Palm Beach County circuit court judge. D'Ambrosio failed to furnish Friedman with a copy of his suspension order. Friedman retained another lawyer to represent him in connection with the divorce.[1]

Count IV. D'Ambrosio was retained by Richard Appelman in connection with a mortgage foreclosure. There was no written agreement concerning the terms and conditions of D'Ambrosio's employment. D'Ambrosio and Appelman understood that D'Ambrosio would be paid an unspecified fee, contingent on the success of the foreclosure. D'Ambrosio filed an answer and affirmative defenses to the mortgage foreclosure and a counterclaim for compensatory and punitive damages. D'Ambrosio was not paid any funds in connection with the mortgage foreclosure. Appelman endorsed a $70,000 check, payable to Appelman, over to D'Ambrosio's trust account. The check was deposited but never cleared D'Ambrosio's trust account.

Count V. D'Ambrosio was retained by Appelman in connection with a personal injury claim. There was no written agreement concerning the terms and conditions of D'Ambrosio's employment. D'Ambrosio and Appelman understood that D'Ambrosio would be paid an unspecified fee, contingent *980 upon the success of the personal injury claim. Appelman discharged D'Ambrosio and settled the claim for an unspecified amount.

Without analyzing the facts or discussing any case law, the referee recommended disbarment. In the same abbreviated manner, the referee found that D'Ambrosio violated Rules Regulating the Florida Bar 3-5.1(g) (upon service of suspension order, respondent shall furnish a copy of the order to all clients, opposing counsel or co-counsel, and all courts); 4-1.1 (a lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation); 4-1.5(a) (an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost); 4-1.5(f)(1) (a contingent fee shall be in writing); 4-1.16(d) (upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as surrendering papers and property to which the client is entitled); 4-3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); and 4-8.4(a) (a lawyer shall not violate the rules of professional conduct).

D'Ambrosio petitions this Court for review, arguing that the referee's findings of fact are insufficient to support the recommended sanction of disbarment.

ANALYSIS

A referee's finding of fact carries with it a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. Fla. Bar v. Barrett, 897 So.2d 1269, 1275 (Fla.2005). Absent a showing that the referee's findings are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. Id.

In this case, the crucial issues are intertwined with the events that took place before the circuit courts in counts II (Dennis) and III (Friedman), while D'Ambrosio was suspended. Although this Court defers to the referee's findings of fact, the referee did not make adequate findings demonstrating that D'Ambrosio engaged in the practice of law at the circuit court proceedings. Further, the record of the disciplinary proceeding indicates that there are extremely different accounts of what took place at those circuit court proceedings. The referee did not discuss those differing accounts, make any credibility findings, resolve conflicts in the evidence, or present specific factual findings. Without elaboration, the referee's report simply states that D'Ambrosio "appeared" on behalf of Dennis and Friedman. The report does not provide any findings of fact to clarify the nature of the appearances. The referee's report does not tell this Court whether D'Ambrosio filed papers, presented arguments, counseled Dennis or Friedman, or otherwise actively represented either former client before the court. Thus, there is insufficient support for the conclusion that D'Ambrosio's presence at the proceedings was an attempt to continue representing the former clients.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Florida Bar v. D'Ambrosio
25 So. 3d 1209 (Supreme Court of Florida, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
946 So. 2d 977, 31 Fla. L. Weekly Supp. 684, 2006 Fla. LEXIS 2423, 2006 WL 2971696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-dambrosio-fla-2006.