The Florida Bar v. Forrester

818 So. 2d 477, 27 Fla. L. Weekly Supp. 485, 2002 Fla. LEXIS 887, 2002 WL 992048
CourtSupreme Court of Florida
DecidedMay 16, 2002
DocketSC00-813
StatusPublished
Cited by12 cases

This text of 818 So. 2d 477 (The Florida Bar v. Forrester) 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. Forrester, 818 So. 2d 477, 27 Fla. L. Weekly Supp. 485, 2002 Fla. LEXIS 887, 2002 WL 992048 (Fla. 2002).

Opinion

818 So.2d 477 (2002)

THE FLORIDA BAR, Complainant,
v.
Geneva Carol FORRESTER, Respondent.

No. SC00-813.

Supreme Court of Florida.

May 16, 2002.

*479 John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Susan V. Bloemendaal, Chief Branch Discipline Counsel and Susan Gralla Zemankiewicz, Assistant Staff Counsel, Tampa, FL, for Complainant.

Henry P. Trawick, Sarasota, FL, for Respondent.

PER CURIAM.

Geneva Carol Forrester, a member of The Florida Bar, petitions this Court to review a referee's report recommending that she be found guilty of ethical breaches. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we approve the referee's findings of guilt and recommended discipline.

FACTS

The Bar filed a complaint against Forrester alleging that she violated Rules Regulating the Florida Bar 4-3.4(a) ("A lawyer shall 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."), and 4-8.4(c) ("A lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.") in the context of her representation of a construction company in civil litigation. The referee held a hearing and issued a report making the following findings:

[Forrester] represented Caladesi Construction Company, Inc., as one of the defendants in civil litigation initiated by Timothy Rice (Rice) d/b/a Palm Marsh Landscaping, (Plaintiff). Donald Hinrichs (Hinrichs) was the President of Defendant corporation, Caladesi Construction Company, Inc. Michael C. Berry, Sr. (Berry) was the attorney for the Plaintiff in the matter. On March 13, 1998, Berry conducted a deposition of Hinrichs, during which Berry showed Hinrichs Deposition Exhibit 5, a two (2) page document printed on green paper. [Florida Bar Exhibit No. 2] Exhibit 5 was an original copy of a Subcontract Agreement between Caladesi and Rice, with original signatures. During this deposition, both Hinrichs and [Forrester] expressed concern that Exhibit 5 belonged to Hinrichs, and [Forrester] indicated that they wanted the document. Later during the deposition, [Forrester] asked Berry to locate certain documents. When Berry turned around to retrieve the documents from behind his seat, Hinrichs removed Exhibit 5 from the table and handed it to [Forrester]. After Hinrichs handed Exhibit 5 to [Forrester], she moved it below the table and placed it to her right, either in or near her briefcase on the floor. The court reporter, Kaylynn Boyer (Boyer), observed the removal of Exhibit 5 from the table, and during a break, communicated this information to Berry's secretary, who shortly thereafter *480 advised Berry. Berry attempted to schedule an emergency hearing, but when unable to do so, he ordered a second court reporter to come to the deposition. After ordering the second court reporter, Berry returned to the deposition room, resumed questioning Hinrichs, and attempted to locate Exhibit 5. The deposition transcript, reflects the following discourse:
Berry: Let's see, I had his contract here, where is that contract?
[Forrester]: I have a copy here. I don't know that I have all the discovery with me. Let me see.
Berry: I'm looking for the Palm Marsh contract, the green one.
[Forrester]: Hm-mm.
Berry: That was exhibit, I'll tell you which one it was.
[Forrester]: I didn't bring my box with me so I don't know that I have a copy right now. I'm seeing if I did.
* * *
Berry: Exhibit five. All right. So you don't have it?
[Forrester]: I'm not seeing it. I had a copy but I know when you filed the complaint didn't you attach it? That would be the easiest way.
Berry: All right.
[Forrester]: Let me look back there. Yeah, that's it, isn't it, a copy of it?
After the second court reporter, Beth Ann Erickson (Erickson) arrived, Berry asked Erickson to take over for the first court reporter, and inquired of [Forrester] as follows:
Berry: I would like to ask Geneva Forrester if she could show me the contract, Exhibit 5, that she has with her documents, please.
[Forrester]: I have this one, which is a copy, and I have the original.
Berry: Okay. Do you have the green original Exhibit 5?
[Forrester]: Yes. Sure.
Berry: Okay. Where is it?
[Forrester]: Right here.
[Forrester] retrieved Exhibit 5 from beside or near her briefcase, which was located on the floor to her right, and handed it to Berry.
Subsequent to the March 13, 1998 deposition, a Motion for Sanction, based in part upon [Forrester's] conduct at the deposition, was heard by Judge James R. Case, Sixth Judicial Circuit. After a hearing, Judge Case signed a July 27, 1998 Order Denying Defendant's Motion to Strike and Granting in Part and Denying in Part Plaintiff's Motion for Sanctions. [Florida Bar Exhibit No. 3] This order included the following finding: "Ms. Forrester has not presented a satisfactory explanation to the Court for her conduct; therefore, the Court must refer the matter to the Florida Bar."

Based upon the evidence presented at the hearing in this matter, the referee found that Forrester knowingly and intentionally removed and concealed evidence (exhibit 5) for a period of time at the March 13, 1998, deposition. The referee further found that Forrester was given more than one opportunity to return exhibit 5, but did not do so until she was confronted by opposing counsel. Although Forrester expressed the belief that exhibit 5 belonged originally to her client, the referee found that Forrester's belief did not constitute a defense to her taking of the document, as lawful remedies were available for the retrieval of the document. Likewise, the referee found that the availability of copies to the parties did not constitute a defense for Forrester's taking exhibit 5, as it was documentary evidence in a deposition. Accordingly, the referee recommended that Forrester be *481 found guilty of violating rule 4-3.4(a) ("A lawyer shall 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.").

Additionally, the referee found that Forrester made an intentional misrepresentation concerning the location of exhibit 5 when asked whether she had it. The referee found that, although Forrester truthfully replied, "I'm not seeing it," Forrester's answer was intended to mislead because she in fact knew where the document was located and failed to disclose that information to Berry. As such, the referee recommended that Forrester be found guilty of violating rule 4-8.4(c) ("A lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.").

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Bluebook (online)
818 So. 2d 477, 27 Fla. L. Weekly Supp. 485, 2002 Fla. LEXIS 887, 2002 WL 992048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-forrester-fla-2002.