The Florida Bar v. Gross

896 So. 2d 742, 30 Fla. L. Weekly Supp. 133, 2005 Fla. LEXIS 379, 2005 WL 486790
CourtSupreme Court of Florida
DecidedMarch 3, 2005
DocketSC01-1403, SC01-2737, SC02-1592, SC03-210
StatusPublished
Cited by6 cases

This text of 896 So. 2d 742 (The Florida Bar v. Gross) 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. Gross, 896 So. 2d 742, 30 Fla. L. Weekly Supp. 133, 2005 Fla. LEXIS 379, 2005 WL 486790 (Fla. 2005).

Opinion

896 So.2d 742 (2005)

THE FLORIDA BAR, Complainant,
v.
Lee Howard GROSS, Respondent.

Nos. SC01-1403, SC01-2737, SC02-1592, SC03-210.

Supreme Court of Florida.

March 3, 2005.

*743 John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL, and William Mulligan, Bar Counsel, Miami, FL, for Complainant.

Richard B. Marx and O. Frank Valladares of Richard B. Marx and Associates, Miami, FL, and Kristi F. Kassebaum of Manto and Kassebaum, Miami, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by attorney Lee Howard Gross. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, Lee Howard Gross is disbarred from the practice of law in the State of Florida, effective, nunc pro tunc, May 21, 2002.

I. FACTS

The Florida Bar filed four complaints against respondent Lee Howard Gross, alleging numerous counts of misconduct including trust account misappropriations of over $100,000 of client funds entrusted to him, the failure to comply with a Florida Bar subpoena, the failure to defend a client in a lawsuit which resulted in a $7500 judgment against his client, the failure to communicate with this client about the suit, the forgery of a judge's signature on certain orders, the forgery of a client's signature on a written plea of guilt, the forgery of a client's signature on a check, mortgage fraud, the failure to disclose one of his trust accounts to The Florida Bar, and the failure to repay all of the trust account misappropriations. Since Gross stipulated to most of the factual allegations within the four complaints, the referee was left with making recommendations regarding which ethical violations occurred based on these stipulations and the appropriate discipline.

After a multiple-day hearing where Gross presented substantial evidence regarding a serious drug and alcohol addiction and his rehabilitation from this addiction, the referee issued an amended report recommending that Lee be found guilty of violating the following Rules Regulating The Florida Bar: 3-4.3 (a lawyer shall not commit any act that is unlawful or contrary to honesty and justice); 4-1.1 (a lawyer shall provide competent representation to a client); 4-1.2(a) (a lawyer shall abide by the client's decisions and explain matters to clients); 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4 (a lawyer shall keep clients reasonably informed about the status of matters); 4-1.5 (a lawyer shall abide by certain rules regulating fees for legal services); 4-1.15(a) (a lawyer shall hold in trust, separate from the lawyer's own property, funds and property of clients that are in the lawyer's possession in connection with a representation); 4-1.15(b) (upon receiving funds in *744 which a client has an interest, a lawyer shall promptly notify the client); 4-1.15(d) (a lawyer shall comply with The Florida Bar Rules Regulating Trust Accounts); 4-1.16(d) (upon the termination of representation, a lawyer must take steps to protect the client's interest); 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interest of the client); 4-3.3(a) (an attorney has the obligation to be candid with the tribunal, including not knowingly presenting false evidence and disclosing certain material facts when disclosure is necessary); 4-3.4(b) (a lawyer shall not fabricate evidence or assist a witness to testify falsely); 4-4.1 (a lawyer must be truthful in statements to others); 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); 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); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); rule 5-1.1(a) (money entrusted to an attorney for a specific purpose is to be held in trust and must be applied only for that purpose); 5-1.1(c) (a lawyer must preserve the bank records pertaining to the funds or property of a client); 5-1.1(d) (a lawyer must maintain trust accounting records); 5-1.1(g) (a lawyer may not endanger money held in trust for a client for purposes of carrying out the business of another client without permission); 5-1.2(b) (a lawyer receiving or disbursing trust funds must maintain specific minimum trust accounting records); and 5-1.2(c) (a lawyer receiving or disbursing trust finds must follow specific minimum trust accounting procedures).[1]

In turning to the recommended discipline, the referee found as follows:

The referee can accept Respondent's argument that his misconduct was largely the product of drug and alcohol addiction. He was a competent and talented attorney before falling victim to substance abuse. Further, the referee agrees that the Respondent is remorseful for his misdeeds. He has signed a contract with Florida Lawyers Assistance, Inc. and has engaged in a course of drug and alcohol treatment.

After considering the aggravation and mitigation, however, the referee found that the range of misconduct and the number of incidents of misconduct was simply too broad to permit suspension and thus recommended that Gross be disbarred for a period of five years. The recommendation further provided that Gross's disbarment should be nunc pro tunc to May 21, 2002, the date this Court suspended Gross from practice pursuant to rule 3-5.2 of the Rules Regulating The Florida Bar. Gross filed a petition for review, challenging the referee's findings and recommendations as they pertained to the recommended discipline.

II. ANALYSIS

Neither party challenges the findings of fact or recommendations as to guilt. Accordingly, we approve the referee's recommendation that Gross be found guilty of violating the above rules without further discussion.

As to the recommended discipline, Gross presented testimony from experts and other witnesses who testified as to *745 Gross's addiction and to his rehabilitation, which did not begin until after these proceedings were well under way.[2] Based on the evidence presented in the hearing, the referee found the following mitigating factors were present: a physical or mental disability or impairment in that Gross suffered from a severe addiction, remorse, and rehabilitation.[3] As to the aggravating factors, the referee's report did not clearly state that any aggravating factors were found, and this Court will not presume certain aggravating factors were found by a referee unless the report specifically states them.[4] After balancing all of the relevant factors, the referee recommended disbarment. Gross objects to the recommended discipline, contending that based on the significant mitigating evidence presented, a long-term suspension is a sufficient sanction.[5] We disagree.

When reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because this Court has the ultimate responsibility to determine the appropriate sanction. Florida Bar v. McFall, 863 So.2d 303, 307 (Fla.2003). In determining a proper sanction, the Court will take into consideration the three purposes of lawyer discipline:

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

Related

Florida Bar v. Johnson
132 So. 3d 32 (Supreme Court of Florida, 2013)
Florida Bar v. Hall
49 So. 3d 1254 (Supreme Court of Florida, 2010)
The Florida Bar v. Dove
985 So. 2d 1001 (Supreme Court of Florida, 2008)
The Florida Bar v. Martinez-Genova
959 So. 2d 241 (Supreme Court of Florida, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
896 So. 2d 742, 30 Fla. L. Weekly Supp. 133, 2005 Fla. LEXIS 379, 2005 WL 486790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-gross-fla-2005.