The Florida Bar v. Elster

770 So. 2d 1184, 25 Fla. L. Weekly Supp. 816, 2000 Fla. LEXIS 1992, 2000 WL 1508558
CourtSupreme Court of Florida
DecidedOctober 12, 2000
DocketSC92968, SC93090 to SC93092
StatusPublished
Cited by7 cases

This text of 770 So. 2d 1184 (The Florida Bar v. Elster) 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. Elster, 770 So. 2d 1184, 25 Fla. L. Weekly Supp. 816, 2000 Fla. LEXIS 1992, 2000 WL 1508558 (Fla. 2000).

Opinion

770 So.2d 1184 (2000)

THE FLORIDA BAR, Complainant,
v.
Allan M. ELSTER, Respondent.

Nos. SC92968, SC93090 to SC93092.

Supreme Court of Florida.

October 12, 2000.

John F. Harkness, Jr., Executive Director, and John A. Boggs, Staff Counsel, Tallahassee, Florida, and Lorraine C. Hoffmann, Bar Counsel, Fort Lauderdale, Florida, for Complainant.

Allan M. Elster, Miami, Florida, Respondent, pro se.

PER CURIAM.

In this consolidated appeal, we have for review four separate attorney discipline cases. All four cases involve Allan M. Elster's representation of clients in immigration matters. Case number SC92968 involves Elster's representation of Antonio and Joani Sabatier. The referee issued a report and recommendation in this case on March 17, 1999, finding that Elster had committed several ethical violations and recommending that he be suspended from the practice of law for sixty days. The three remaining cases, SC93090, SC93091, and SC93092, involve Elster's representation *1185 of Dominga Zavala, Modesto Vargas, and Yanique Duval, respectively. These three cases were consolidated below, and the referee issued a single report and recommendation on June 4, 1999, again finding a number of ethical violations and recommending that Elster be suspended for eighteen months. We have jurisdiction. Art. V, § 15, Fla. Const. For the reasons expressed below, we approve the referee's findings of fact, but we reject the recommended discipline and find that a three-year suspension is the appropriate sanction for Elster's collective misconduct in these four cases.

FINDINGS OF FACT

A. The Sabatier Case

In this case, Elster was retained to represent Antonio Sabatier and his daughter, Joani, before the United States Immigration Court. The Sabatiers paid Elster $400 toward a total fee of $800 for handling the entire matter, and they informed Elster that they had a court hearing scheduled for August 6, 1996. The referee found that Elster failed to file a notice of appearance on their behalf, failed to appear at the scheduled hearing, failed to accomplish any meaningful work on their behalf, effectively abandoned them and their cause of action, and failed to make any attempt to inform them that he did not intend to continue to represent them. The referee also found that both before and after the date of the hearing, the Sabatiers and their successor counsel made numerous attempts to contact Elster by phone and electronic pager, but he failed to return any of the phone calls or pages. Finally, the referee found that due to Elster's complete lack of work on the Sabatiers' behalf, he collected an excessive fee of $400. Based on these findings, the referee recommended that Elster be found guilty of violating rules 3-4.2 (violation of Rules of Professional Conduct grounds for discipline), 4-8.4(a) (lawyer shall not violate Rules of Professional Conduct), 4-1.1 (competent representation), 4-1.3 (reasonable diligence), 4-1.16(d) (protection of client's interest upon termination of representation), 4-1.4(a) (keeping client reasonably informed), and 4-1.5(a) (excessive fee) of the Rules Regulating The Florida Bar.

Elster essentially disagrees with the referee's findings of fact in the Sabatier case on the basis that they are contrary to his own testimony. However, in order to successfully challenge the referee's findings, Elster must demonstrate "that there is no evidence in the record to support [the referee's] findings or that the record evidence clearly contradicts the conclusions." Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996). Elster has not met this burden.

It is clear that the referee weighed the credibility of Elster's testimony in this case and, where the evidence was in conflict, chose to credit the documentary evidence and the testimony of other witnesses over the testimony of Elster. Because the referee is in the best position to judge the credibility of the witnesses, we defer to the referee's assessment and his resolution of the conflicting testimony. See Florida Bar v. Fredericks, 731 So.2d 1249, 1251 (Fla.1999) (stating that "the referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect"); Florida Bar v. Thomas, 582 So.2d 1177, 1178 (Fla.1991) (same); Florida Bar v. Hayden, 583 So.2d 1016, 1017 (Fla.1991) (stating that where testimony conflicts, referee is charged with responsibility of assessing credibility based on demeanor and other factors). Accordingly, we find that there is competent substantial evidence in the record to support the referee's findings in this case.

B. The Zavala, Vargas, and Duval Cases

In the Zavala case, the referee found that Elster provided Dominga Zavala with a misleading business card, which bore the *1186 name "Immigration Verification Associates," upon which she relied to retain him to represent her in an appeal of the deportation order previously entered against her. He collected his full fee from her, filed a motion to reopen and stay her deportation, which was swiftly denied as inadequate, filed a motion for rehearing of that denial which was also denied, and then filed an emergency appeal. After filing the emergency appeal, Elster communicated with Zavala for approximately two months at the Krome Detention Center where she was being held, after which he abandoned her and failed to communicate with her despite her frequent attempts to communicate with him. Zavala was deported on November 11, 1996.

Although the referee stated that Elster's legal work for Zavala was "unprofessional, legally inadequate and possibly constituted malpractice," he found that it did not rise to the level of unethical conduct. However, the referee found that through the use of the business card and his letterhead, which also bore the name "Immigration Verification Associates," Elster violated rules 4-7.1(a) (misleading communication about lawyer's services), 4-7.2(k) (non-complying advertisement), 4-7.7(b) (trade name), 4-7.7(f) (statement that lawyer practices in partnership or other organization), and 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee also found that by intentionally disseminating the business card and letterhead for the purpose of financial gain, Elster violated rule 4-7.1(a) (misleading communication about lawyer's services), 4-7.2(k) (noncomplying advertisement), 4-7.7(b) (trade name), and 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and that by collecting a legal fee through the use of a noncomplying advertisement, he violated rule 4-1.5(a) (fee generated by employment obtained through noncomplying advertisement). Finally, the referee found that by failing to communicate with his client for the last five months she was in the country, Elster violated rule 4-1.4(a) (keeping client reasonably informed and complying with reasonable requests for information), and 4-1.4(b) (explaining matter to client to extent reasonably necessary to permit informed decisions).

In the Vargas case, the referee found that Elster was retained to represent Modesto Vargas in an appeal of the deportation order previously entered against him. Elster assured Vargas and his family that he could stop the deportation when he knew or should have known that Vargas was ineligible for a waiver of deportation due to his drug convictions. After accepting a total fee of $2500 from the Vargas family, Elster failed and refused to take any significant action and did absolutely no work on Vargas's behalf.

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Cite This Page — Counsel Stack

Bluebook (online)
770 So. 2d 1184, 25 Fla. L. Weekly Supp. 816, 2000 Fla. LEXIS 1992, 2000 WL 1508558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-elster-fla-2000.