Supreme Court of Florida ____________
No. SC2021-1469 ____________
THE FLORIDA BAR, Complainant,
vs.
MIGUEL FERNANDO MIRABAL, Respondent.
July 11, 2024
PER CURIAM.
We have for review a referee’s report recommending that
Respondent, Miguel Fernando Mirabal, be found guilty of
professional misconduct in violation of the Rules Regulating The
Florida Bar (rules) for repeatedly certifying as correct campaign
finance reports he knew were false, making material
misrepresentations and omissions in his application to fill a judicial
vacancy with the Judicial Nominating Commission (JNC), and for
his misconduct during these disciplinary proceedings. 1 As a
1. We have jurisdiction. See art. V, § 15, Fla. Const. sanction for his misconduct, the referee recommends that we disbar
Mirabal from the practice of law in Florida.
Mirabal challenges the referee’s report. He admits that he
made “mistakes” in his pursuit of judicial office but maintains that
his conduct was entirely unintentional. He also argues that
disbarment is too harsh a sanction in this case, and that if any
disciplinary action is warranted against him, we should impose no
more than a lengthy suspension. We reject these arguments and
approve the referee’s factual findings and recommendations as to
guilt, except for the recommendations of guilt as to rules 4-8.1(a),
4-8.2(b), and Canon 7 of the Code of Judicial Conduct, which we
disapprove. We also approve the referee’s recommended sanction
and disbar Mirabal from the practice of law in Florida.
I.
Campaign Finance Reports
In 2017, Mirabal filed to run for election to a county court
judgeship in Miami-Dade County. He initially designated himself
the campaign’s treasurer, but later designated himself deputy
treasurer on March 9, 2018, after he hired Jhanet Garcia, a
-2- certified public accountant who handled accounting matters for his
family, to serve as the campaign’s treasurer.
As a candidate for elected office, Mirabal was required to
regularly file campaign finance reports with the Miami-Dade County
Elections Department. He was required as the candidate, and as
the treasurer of his campaign through March 9, 2018, to certify the
correctness of each report filed. See § 106.07(5), Fla. Stat. (2017).
Mirabal personally reviewed and certified each of his campaign’s
monthly reports using his own unique PIN signature code.
Though he certified each report as correct, the referee found
that Mirabal’s campaign finance reports were riddled with material
errors about his campaign’s finances, many of which were likely
timed to be politically beneficial to his campaign. The most
significant reporting errors occurred during the candidate qualifying
period, where, just before switching races from group 18 to group
43, Mirabal made a series of amendments to his campaign’s reports
that made it appear to the public and others in the race as though
he had a larger campaign account balance and was a much better
funded candidate than he actually was. After the qualifying period
ended, and when a smaller campaign account balance was less
-3- detrimental to his campaign, Mirabal amended the reports to
decrease the balance of his campaign account.
For example, on the evening of March 8, 2018, just before he
switched races from group 18 to group 43, Mirabal amended his
January 2018 report to add $196.80 in collected cash and checks,
and reported the campaign cumulative total as $46,278.26. Forty-
three minutes later, he amended his November 2017 report to re-
report cash, check, and loan amounts in the amount of $5,551.46,
essentially doubling those amounts for a campaign cumulative total
of $51,829.72. Then, thirteen minutes later, Mirabal amended his
February 2018 report to add $3,000.00 in in-kind contributions
and to re-report a $20,000.00 loan to himself, which like the other
re-reported amounts, doubled the actual amount of the loan. At
this point, Mirabal’s cumulative campaign total was $71,829.72,
which did not match the amount actually in his campaign account.
Then, minutes after the qualifying period ended at noon on
May 3, 2018, Mirabal amended his November 2017 report to delete
the doubled $3,130.00 in cash and checks, and to delete a
$3,421.46 purported loan from himself, lowering the cumulative
total of the campaign account to $69,278.26. Ten minutes later,
-4- Mirabal amended the January 2018 report to delete a $10,000.00
purported loan from himself, lowering the cumulative total of the
campaign account to $59,278.46. In deleting the loan amount from
the report rather than amending it or placing it on another report,
the referee found that Mirabal basically recognized that the loan did
not actually occur and that he had no basis to record it. And
finally, sixty-two minutes later, Mirabal amended his February
2018 report to delete the doubled $20,000.00 purported loan from
himself, lowering the cumulative total of the campaign account to
$39,278.26.
Based on the numerous material errors in Mirabal’s monthly
campaign finance reports, the Florida Elections Commission (FEC),
in a consent order dated February 26, 2019, found Mirabal in
violation of section 106.07(5). The FEC ordered Mirabal to pay a
$2,000.00 fine. When asked at the final hearing to explain the high
volume of material errors in his campaign reports, Mirabal stated
that the errors were the result of him mistakenly filling out forms
with which he was unfamiliar. The referee found Mirabal’s
explanation untruthful. He noted that Mirabal, who has served as
the closing agent on numerous real estate transactions, was not
-5- unfamiliar with reporting financial matters on forms and with
ensuring the accuracy and completeness of such forms.
Mirabal also claimed that he had until the end of the
campaign to amend and correct his financial reports. The referee
rejected this argument, finding that that was true for errors he may
not have been aware of until the end of the campaign. But Mirabal
was well aware of the errors in his campaign’s finance reports when
his campaign was ongoing and he had a duty to correct the
reported balances before certifying in subsequent reports that the
reported total was correct.
The referee ultimately found that the errors in Mirabal’s
campaign finance reports were too numerous and far too politically
advantageous to be a mere accident. He concluded that Mirabal
knowingly and repeatedly certified the over-inflated numbers in his
campaign finance reports as accurate, allowing them to go
uncorrected during the period when other candidates could enter
the group 43 race for judicial office. The referee, thus, recommends
that Mirabal be found guilty of violating rule 4-8.4(c) (“A lawyer
shall not . . . engage in conduct involving dishonesty, fraud, deceit,
or misrepresentation . . . .”).
-6- The 2019 JNC Application
In April 2019, Mirabal filed an application with the JNC
seeking appointment to a county court judgeship. He certified at
the end of his JNC application that he had “read the foregoing
questions carefully and ha[d] answered them truthfully, fully and
completely.”
Question 38
Question 38 of the JNC application asked whether Mirabal
had “ever been a party to a lawsuit either as a plaintiff or as a
defendant.” If the answer was in the affirmative, the application
directed Mirabal to identify the jurisdiction where the lawsuit was
filed, the style of the case, the case number, the nature of the
lawsuit, whether he was a plaintiff or defendant, and the case’s
disposition.
In answering question 38, Mirabal failed to list six lawsuits in
which he was a party. Mirabal claimed that he filled out the
application from memory, and that the cases were negligently
omitted from his application. The referee found Mirabal’s
explanation that he simply “forgot” about the six cases was not
credible, particularly given that the omitted lawsuits contained
-7- negative comments and findings about Mirabal that would cause
the JNC to look unfavorably on his application.
For example, in Federal Deposit Insurance Corp., as Receiver
for Indymac Bank, FSB v. Miguel F. Mirabal & Global Title, LLC,
Mirabal was accused of fraud and breach of contract after he
purportedly failed to follow the lender’s instructions while acting as
a closing agent. Mirabal ultimately settled the case and agreed to
testify against others involved in the fraud. The referee found that
it was “impossible to believe” that Mirabal would simply forget a
lawsuit of this nature and result.
Another example is Miguel F. Mirabal v. Bank of America Corp.,
a lawsuit Mirabal initiated in Miami-Dade circuit court. Though he
disclosed the case’s existence on his JNC application, Mirabal
misrepresented its disposition. He claimed:
This was my lawsuit as Plaintiff for a property/mortgage against Bank of America and Countrywide Home Loans, after I detected irregularities with the loan. After several years of litigation we finally settled in June 2016 with a short sale of the property.
However, Mirabal failed to disclose that the case was removed to
federal court, where his claims were dismissed with prejudice for
misrepresentations of fact and failure to state a claim. The case
-8- stemmed from Mirabal’s attempt to avert foreclosure proceedings on
property he owned. In July 2008, Mirabal drafted and executed a
“Quit Claim Deed in Lieu of Foreclosure” that stated it was prepared
by the Bank of New York. Unaware of Mirabal’s actions, the Bank
of New York recorded a lis pendens against the property in October
2008. Mirabal then recorded the quit claim deed he prepared in
December 2008, and he initiated the circuit court action against the
bank and its successor to quiet title to the property based on the
quit claim deed.
After its removal to federal court, Mirabal’s lawsuit was
dismissed with prejudice. The federal court found that the various
versions of Mirabal’s complaint contradicted each other and that
the exhibits he relied on directly contradicted the allegations in the
complaints. It further found that Mirabal made false allegations in
his complaint and that he relied on a false document that he clearly
prepared himself.
The referee found the federal case would likely have raised
concerns amongst the JNC members as to Mirabal’s fitness to hold
a judicial office. He found that Mirabal intentionally omitted the
federal case from his application, as he could not have simply
-9- forgotten about the case, given the negative findings in the federal
court’s order and the fact that the order was issued just three years
before he submitted his JNC application. The referee, thus,
recommends that Respondent be found guilty of violating rule 4-
8.4(c).
Question 39
Question 39 of the JNC application asked whether a “finding
of probable cause or other citation [has been] issued against you or
are you presently under investigation for a breach of ethics or
unprofessional conduct by any court, administrative agency, bar
association, or other professional group. If so, give the particulars.”
Mirabal answered question 39 in the negative, even though he
was under investigation by the Bar at that point for the errors in his
2018 campaign finance reports and the FEC consent order was
entered just six weeks earlier. 2 When asked at the final hearing
why he failed to disclose the pending Bar investigation on his
2. Mirabal was not elected to the bench in 2018, nor was he selected by the JNC to fill a vacancy in 2019. He was elected to the bench in 2020, but resigned three months after taking the bench when the Bar ceased its investigation and the Judicial Qualifications Commission initiated its own investigation. The Bar resumed its investigation following Respondent’s resignation.
- 10 - application to the JNC, Mirabal stated that it was “probably . . . a
mistake copy and pasting” from a prior application that he had
made to the JNC.
The referee found that Mirabal intentionally omitted the FEC
consent order and pending Bar investigation from his JNC
application. He determined that the existence of an investigation by
the Bar is simply too profound a life event to have been accidentally
omitted from an application that clearly and directly asks whether
you are presently under investigation for a breach of ethics or
unprofessional conduct. He, likewise, determined that Mirabal
could not have accidently failed to disclose the FEC consent order
entered just six weeks earlier when the question clearly directed
him to disclose such an order. The referee, thus, recommends that
Mirabal be found guilty of violating rule 4-8.4(c).
The Bar Investigation
In May 2018, Judge Milena Abreu filed a grievance against
Mirabal, initiating these proceedings. On October 9, 2019, Mirabal
submitted, through counsel, a response to Judge Abreu’s
supplemental grievance. He reviewed, edited, and approved the
- 11 - response sent by his counsel. The response, in relevant part,
stated:
My client is deeply concerned about the motives underlying this grievance and if necessary is able to relay a series of troubling events which occurred during and after the campaign, wherein Judge Abreu’s then campaign advisor, and others went to great extremes to convince Mr. Mirabal to switch races to allow Judge Abreu to have an uncontested election; this included threats of Bar complaints and much more. After Judge Abreu lost her August 2016 election to sitting Judge Fred Serafin, former candidate Abreu filed a frivolous lawsuit against her former opponent to undo the election. We do not want to escalate this matter any further and would hope that the resolution of the FEC complaint, with the payment of a civil sanction . . . would be the appropriate remedy and resolution.
Mirabal explained that he made the statement about Judge
Abreu filing a frivolous lawsuit based solely on hearsay and that he
did not attempt to ascertain its correctness before including it in
the letter. He later checked the public record and was unable to
find any record of a lawsuit initiated by Judge Abreu against her
former opponent.
The referee found that Mirabal made the statement about
Judge Abreu filing a frivolous lawsuit with a reckless disregard for
the truth, and that he made the statement to disparage Judge
Abreu and attack her credibility as the complaining witness. He
- 12 - also found that the letter’s use of the phrases “escalate this matter,”
“to relay a series of troubling events,” and “if necessary” were
intended as a threat that if the Bar disciplinary proceedings were
not dropped, Mirabal would make troubling accusations about
Judge Abreu. The referee recommends that Mirabal be found guilty
of violating rules 4-8.1(c) (“An applicant for admission to the bar . . .
shall not . . . commit an act that adversely reflects on the
applicant’s fitness to practice law.”), 4-8.2(a) (“A lawyer shall not
make a statement . . . with reckless disregard as to its truth or
falsity concerning the qualifications or integrity of a judge . . . .”), 4-
8.2(b) (“A lawyer who is a candidate for judicial office shall comply
with the applicable provisions of Florida’s Code of Judicial
Conduct.”), 4-8.4(d) (“A lawyer shall not . . . engage in conduct in
connection with the practice of law that is prejudicial to the
administration of justice . . . .”), and Canon 7 of the Code of
Judicial Conduct.
Based on these findings and guilt recommendations, and after
making findings in aggravation and mitigation, the referee
recommends that Mirabal be disbarred from the practice of law in
Florida and that he be assessed the Bar’s costs in these
- 13 - proceedings. Mirabal filed a notice of intent to seek review of the
referee’s report. He challenges several of the referee’s factual
findings, each of the recommendations of guilt, and the
recommended sanction.
II.
Mirabal first challenges the referee’s findings of fact and
recommendations of guilt for each rule violation.3 Our review of a
challenge to the referee’s findings of fact is limited, and if the
findings of fact are supported by competent, substantial evidence in
the record, we will not reweigh the evidence and substitute our
judgment for that of the referee. Fla. Bar v. Alters, 260 So. 3d 72,
79 (Fla. 2018) (citing Fla. Bar v. Frederick, 756 So. 2d 79, 86 (Fla.
2000)).
As for a referee’s recommendations as to guilt, “the referee’s
factual findings must be sufficient under the applicable rules to
support the recommendations.” Fla. Bar v. Patterson, 257 So. 3d
3. We approve without further comment the referee’s recommendation that Mirabal be found not guilty of violating the Rules Regulating The Florida Bar based on his 2018, 2019, and 2020 Form 6 financial disclosures, and based on his answer to questions 50, 51, and 53 in his 2019 JNC application.
- 14 - 56, 61 (Fla. 2018) (citing Fla. Bar v. Shoureas, 913 So. 2d 554, 557-
58 (Fla. 2005)). Ultimately, the burden is on the party challenging
the referee’s findings of fact and recommendations as to guilt to
demonstrate “that there is no evidence in the record to support
those findings or that the record evidence clearly contradicts the
conclusions.” Fla. Bar v. Germain, 957 So. 2d 613, 620 (Fla. 2007)
(citing Fla. Bar v. Carlon, 820 So. 2d 891, 898 (Fla. 2002)).
Rule 4-8.4(c)
Rule 4-8.4(c) prohibits a lawyer from “engag[ing] in conduct
involving dishonesty, fraud, deceit, or misrepresentation.” To find a
violation of the rule, “the Bar must prove intent.” Fla. Bar v. Brown,
905 So. 2d 76, 81 (Fla. 2005). The element of intent, however, can
be satisfied by a mere “showing that the conduct was deliberate or
knowing.” Id. (citing Fla. Bar v. Fredericks, 731 So. 2d 1249, 1252
(Fla. 1999)). The motive behind a lawyer’s actions is not
determinative, as long as the lawyer deliberately or knowingly
engaged in the activity at issue. Fla. Bar v. Watson, 76 So. 3d 915,
922 (Fla. 2011).
- 15 - Campaign Finance Reports
The referee found that Mirabal knowingly and repeatedly
certified as correct campaign finance reports he knew were
inaccurate. Specifically, he found that Mirabal submitted campaign
finance reports with over-inflated numbers just before entering the
group 43 race, that he allowed the over-inflated numbers to stand
during the qualifying period for the race, and that such actions
made it appear to others that he was a much better funded
candidate than he actually was. We find abundant support for
these findings in the record, namely from Mirabal’s campaign
finance reports and banking statements, as well as the FEC consent
order, wherein Mirabal admitted that he “certified campaign reports
[as] complete when they were not.”
Despite the overwhelming support for the referee’s findings,
Mirabal claims that the errors in his campaign finance reports were
simply unintentional mistakes, and he disputes that he filed the
inaccurate reports to mislead others about the amount of funds in
his campaign account. As support for his argument, Mirabal
largely relies on his own testimony at the final hearing, as well as
brief emails he sent Garcia and the Miami-Dade Elections
- 16 - Department notifying them of the over-inflated numbers in his
February 2018 reports. He also relies on a letter Garcia wrote to
his counsel in June 2018 in which she explained the reason for the
delay in correcting the over-inflated reports.
The referee, however, rejected Mirabal’s argument that the
errors in his campaign reports were simply unintentional mistakes.
He found that Mirabal’s assertion was not credible in light of his
significant experience in accurately reporting financial matters as a
closing agent for real estate transactions, and Mirabal offers no
argument as to why we should not defer to the referee’s assessment
of his credibility on this issue. See Fla. Bar v. Forrester, 916 So. 2d
647, 652 (Fla. 2005) (“Because the referee is in the best position to
judge the credibility of the witnesses, we defer to the referee’s
assessment.”); see also Fla. Bar v. Gross, 610 So. 2d 442, 444 (Fla.
1992) (finding that a referee has the right not to believe the
respondent’s version of events). In any event, Mirabal cannot meet
his burden in this case by simply pointing to contradictory evidence
in the record. Fla. Bar v. Committe, 916 So. 2d 741, 746 (Fla. 2005)
(“[An attorney] cannot meet this burden by simply pointing to
- 17 - contradictory evidence when there is also competent, substantial
evidence in the record to support the referee’s findings.”).
Therefore, we conclude that the referee’s findings of fact are
supported by competent, substantial evidence and are sufficient to
support the recommendation that Mirabal violated rule 4-8.4(c).
The 2019 JNC Application
The referee here found that Mirabal intentionally engaged in
dishonest conduct by omitting and misrepresenting material
information in his 2019 JNC application. Mirabal maintains that
the omissions were entirely unintentional. He blames his faulty
memory, uncertainty about the status of the Bar investigation, and
copying and pasting from an old application. Basically, Mirabal
claims he had no knowledge of the errors and omissions in his
application. We have rejected similar attempts to negate a finding
of intent, particularly where the referee found that the lawyer’s
asserted lack of knowledge was not credible. See Brown, 905 So. 2d
at 81 (rejecting argument that lawyer lacked intent to misrepresent
the status of a certificate of deposit in an agreement because he did
not read the agreement).
- 18 - The referee found that the various explanations put forward by
Mirabal as to why he was unaware of the omissions in his
application were unworthy of belief, given that many of the omitted
matters were fairly recent and far too significant to a lawyer to
simply be forgotten or overlooked—i.e., the federal court’s order in
the Bank of America case and the Bar investigation. See Fla. Bar v.
Cohen, 908 So. 2d 405, 411 (Fla. 2005) (stating that a referee may
use common sense and logic in making findings of fact, especially
when a lawyer’s version of events “strains credulity”). Mirabal again
offers no argument as to why we should not defer to the referee’s
assessment of his credibility on this issue. See Forrester, 916 So.
2d at 652.
Mirabal also takes issue with the referee’s finding that his JNC
application included a misleading explanation of the litigation in
Miguel F. Mirabal v. Bank of America Corp. Mirabal identified the
case in his application as a state action pertaining to loan
irregularities and indicated that the case was ultimately settled
through a short sale. The referee found this portrayal of the case
was misleading because it failed to disclose that the case was
removed to federal court where it was dismissed with prejudice
- 19 - based on Mirabal’s misrepresentations and failure to state a claim.
Mirabal concedes that he should have disclosed the federal portion
of the case but maintains that his explanation fairly disclosed the
mortgage dispute between the parties and how the dispute was
ultimately resolved.
Question 38, however, did not direct Mirabal to simply
disclose with whom he had a dispute and how it was resolved. It
directed him to list each lawsuit in which he was named as a party
and to include certain details about the case, such as where the
case was filed, the nature of the lawsuit, and the case’s disposition.
Mirabal’s description of the Bank of America case either omitted or
misrepresented many of the details question 38 asked him to
provide, and it gave the reader the false impression that the case
was just a state action about loan irregularities. He failed to
disclose that the state case was removed to federal court,
misrepresented that he initiated the case based on loan
irregularities rather than as an attempt to force the lender to accept
his fraudulent quit claim deed in lieu of foreclosure, and falsely
stated that the case was settled with a short sale when it was
actually dismissed with prejudice by the federal court. We, thus,
- 20 - find ample support for the referee’s finding that Mirabal provided a
misleading description of the Bank of America case.
Accordingly, we conclude that the record supports the referee’s
findings of fact and that such findings overwhelmingly support the
recommendation that Mirabal violated rule 4-8.4(c).
Rule 4-8.1
The referee recommends that Mirabal be found guilty of
violating rule 4-8.1(c). Under that rule, an applicant for admission
to the Bar must not commit an act that adversely reflects on the
applicant’s fitness to practice law. R. Regulating Fla. Bar 4-8.1(c).
Both the Bar and Mirabal agree that rule 4-8.1(c) is not applicable
to these proceedings. The Bar urges us to instead find Mirabal
guilty of violating rule 4-8.1(a), which prohibits a lawyer from
knowingly making a false statement of material fact in connection
with a disciplinary matter. Mirabal claims the Bar waived the issue
by not seeking to have the referee’s report corrected, and that his
right to due process was violated by the failure of the Bar to not
identify in the complaint which part of each rule he allegedly
violated.
- 21 - Due process in a Bar disciplinary proceeding, however, does
not require the type of specificity demanded by Mirabal, nor does it
preclude us from considering whether Mirabal violated rule 4-8.1(a).
Due process requires only that Mirabal receive notice of the Bar’s
charges and be given an opportunity to be heard at the disciplinary
hearing. See Committe, 916 So. 2d at 745. Both of these
requirements were satisfied here. Mirabal was put on notice by the
complaint in this case as to the specific conduct the Bar considered
unethical and each of the rules he allegedly violated. The complaint
specifically listed rule 4-8.1 as an alleged rule violation, along with
the other rules at issue in this case, and Mirabal was given an
opportunity to be heard at the disciplinary hearing as to the alleged
misconduct.
Moreover, though not specifically charged in the complaint, we
are free to consider whether Mirabal violated rule 4-8.1(a), as a
violation of the rule falls squarely within the scope of the Bar’s
allegation in paragraph 29 of the complaint that Mirabal’s October
2019 letter contained false statements. See Fredericks, 731 So. 2d
at 1253 (“[S]pecific findings of uncharged conduct and violations of
rules not charged in the complaint are permitted where the conduct
- 22 - is either specifically referred to in the complaint or is within the
scope of the specific allegations in the complaint.”).
To violate rule 4-8.1(a), a lawyer must knowingly make a false
statement of material fact in connection with a Bar disciplinary
proceeding. As the basis for a violation of rule 4-8.1(a), the Bar
looks to the statement in the October 2019 letter about Judge
Abreu filing a frivolous lawsuit against her opponent in the 2016
election. The referee found that the statement was false, and
Mirabal concedes that he has since learned that no such lawsuit
existed. Mirabal maintains, however, that he believed the
statement was true when the letter was drafted. The referee made
no finding as to whether Mirabal knew the statement was false
when the October 2019 letter was sent to the Bar, and there is no
evidence in the record to support such a finding. Further, at no
point does the Bar explain how the statement was in any way
material to its investigation of the 2018 campaign finance reports or
the 2019 JNC application. We, thus, conclude that the record is
insufficient to support a violation of rule 4-8.1(a). Accordingly, we
find Mirabal not guilty of violating rule 4-8.1(a).
- 23 - Rule 4-8.2(a)
Rule 4-8.2(a) states that a “lawyer shall not make a statement
that the lawyer knows to be false or with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a judge.”
In assessing whether a lawyer has violated the rule, we apply an
objective standard, asking whether the lawyer had “an objectively
reasonable factual basis for making the statements.” Fla. Bar v.
Ray, 797 So. 2d 556, 559 (Fla. 2001). “Thus, once the Bar presents
evidence establishing that a lawyer made statements concerning the
qualifications or integrity of a judge, the burden shifts to the
[lawyer] to provide an objectively reasonable factual basis for
making the statements.” Fla. Bar v. Jacobs, 370 So. 3d 876, 883
(Fla. 2023) (citing Ray, 797 So. 2d at 558 n.3).
In the October 2019 letter, Mirabal stated that Judge Abreu,
after losing the 2016 election, filed a frivolous lawsuit against her
opponent in the race in an attempt to undo the election results.
The referee found that this statement was false, and that Mirabal
made the statement to disparage Judge Abreu and attack her
credibility as the complaining witness. Mirabal does not dispute
these findings. He argues that he made the statement based on
- 24 - information he received from a “trusted source,” and that he had an
objectively reasonable belief that the statement was true when the
October 2019 letter was drafted. But Mirabal’s personal belief in
the accuracy of the statement does not constitute an objectively
reasonable factual basis, nor does unverified information from a so-
called “trusted source.”
Mirabal contends that he has a right to challenge and question
the motives of the complaining witness. That right, however, is not
unlimited. He is free to challenge and question the motives of the
complaining witness, as long as he does so within the bounds of the
Bar rules. His conduct here exceeded those bounds.
We, thus, conclude that the record supports the referee’s
findings of fact and that such findings are sufficient to support the
recommendation that Mirabal violated rule 4-8.2(a).
Rule 4-8.2(b) and Canon 7
The referee recommends that we find Mirabal guilty of
violating rule 4-8.2(b) and Canon 7 of the Code of Judicial Conduct
based on his October 2019 letter to the Bar. Rule 4-8.2(b) requires
that a lawyer who is a candidate for judicial office comply with the
applicable provisions of the Code of Judicial Conduct. Canon 7
- 25 - directs how a judge or candidate seeking either election or
appointment to a judicial office must conduct him or herself.
We have only found a violation of both rule 4-8.2(b) and Canon
7 in cases where the misconduct at issue occurred in connection
with a lawyer or judge’s candidacy for judicial office. See, e.g., Fla.
Bar v. Aven, 317 So. 3d 1095, 1096-97 (Fla. 2021) (sanctioning
lawyer for violating rule 4-8.2(b) and Canon 7 during campaign for
judicial office); In re Santino, 257 So. 3d 25, 33 (Fla. 2018)
(removing judge from office for violating rule 4-8.2(b) and Canon 7
during campaign for office). The misconduct at issue here occurred
during the Bar disciplinary proceedings and had no connection to
Mirabal’s candidacy for judicial office. We, therefore, find Mirabal
not guilty of violating rule 4-8.2(b) and Canon 7.
Rule 4-8.4(d)
Rule 4-8.4(d) prohibits a lawyer from engaging in “conduct in
connection with the practice of law that is prejudicial to the
administration of justice.” The rule specifically identifies as
included in the broad prohibition conduct that “knowingly, or
through callous indifference, disparage[s], humiliate[s], or
- 26 - discriminate[s] against . . . witnesses . . . on any basis.” R.
Regulating Fla. Bar 4-8.4(d).
Here, the referee found that Mirabal’s October 2019 letter
disparaged Judge Abreu and contained threatening statements
aimed at intimidating or silencing her. Mirabal disputes this
finding, contending that the letter is also subject to a more benign
reading. He claims that the phrase “we do not want to escalate this
matter any further” can be read as him considering possible
litigation or as him simply not wanting the disciplinary action to
proceed further.
In the letter, Mirabal falsely accused Judge Abreu of filing a
frivolous lawsuit to undo her election loss and suggested that he
could “relay a series of troubling events” about her. He then stated
that he “[did] not want to escalate this matter any further and
would hope that the resolution of the FEC complaint . . . would be
the appropriate remedy and resolution.” From these statements,
the referee reasonably concluded that the letter was an attempt to
intimidate or silence Judge Abreu. The fact that a different
conclusion might be drawn from the same evidence if construed in
a light more favorable to Mirabal does not render the referee’s
- 27 - finding unreasonable or lacking in support. See Fla. Bar v. Niles,
644 So. 2d 504, 506 (Fla. 1994) (“The responsibility for finding facts
and resolving conflicts in the evidence is placed with the referee.”
(citing Fla. Bar v. Hoffer, 383 So. 2d 639 (Fla. 1980))).
Mirabal also claims that the statements in the October 2019
letter were not made “in connection with the practice of law,” as he
did not make them while representing clients or actively engaged in
the practice of law. We disagree. The phrase “in connection with
the practice of law” was added to rule 4-8.4(d) in 1994 to make sure
that the rule is “limited in its application to situations involving the
practice of law in order to ensure that the First Amendment rights
of lawyers are not unduly burdened.” Fla. Bar re Amends. to Rules
Regulating Fla. Bar, 624 So. 2d 720, 721 (Fla. 1993). This includes
a lawyer’s own conduct during a Bar disciplinary proceeding.
Accordingly, we find that Mirabal’s efforts in the October 2019
letter to disparage and intimidate Judge Abreu constitute conduct
prejudicial to the administration of justice. See Fla. Bar v.
Committe, 136 So. 3d 1111, 1116 (Fla. 2014) (finding that lawyer’s
efforts to intimidate defendant constituted conduct prejudicial to
the administration of justice). We, thus, conclude that the record
- 28 - supports the referee’s findings of fact and that such findings are
sufficient to support the recommendation that Mirabal violated rule
4-8.4(d).
III.
We now turn to the referee’s recommendation that Mirabal be
disbarred for his misconduct. Our review of a referee’s
recommended discipline is broader than that afforded to the
referee’s findings of fact because, ultimately, it is our responsibility
to order the appropriate sanction. See Patterson, 257 So. 3d at 64;
Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art.
V, § 15, Fla. Const.
A.
As always, our review of the referee’s recommended discipline
begins with the Standards for Imposing Lawyer Sanctions. We find
support for the referee’s recommended discipline here in Standards
5.1(a)(6) and 7.1(a). Standard 5.1(a)(6) says disbarment is
appropriate when a lawyer “engages in . . . intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that
seriously adversely reflects on the lawyer’s fitness to practice.” And
Standard 7.1(a) says disbarment is appropriate when “a lawyer
- 29 - intentionally engages in conduct that is a violation of a duty owed
as a professional with the intent to obtain a benefit for the
lawyer . . . and causes serious or potentially serious injury to a
client, the public, or the legal system.”
Mirabal engaged in a deliberate pattern of dishonesty. He
deliberately disregarded his statutory obligations as a judicial
candidate and repeatedly certified as correct campaign finance
reports he knew were false. He also filed an application with the
JNC in which he deliberately omitted and misrepresented material
information about his background. His willingness to engage in
these patently dishonest acts to further his own ambition of
obtaining a judicial office “seriously adversely reflects on [his]
fitness to practice.” Fla. Std. Imposing Law. Sancs. 5.1(a)(6).
Moreover, Mirabal had a duty as an officer of the court to
conduct himself with the utmost integrity while seeking a judicial
office so as to not undermine the public’s perception of the judiciary
or the confidence it places in the judicial process. See R.
Regulating Fla. Bar 4-8.2(b); Fla. Code Jud. Conduct, Canon
- 30 - 7A(3)(b).4 His disregard of this duty, along with his apparent
willingness to engage in dishonest conduct to further his own
ambitions, is not only harmful to the legal process, but raises
serious concerns about his trustworthiness and overall fitness to
continue the practice of law. We, therefore, conclude that
disbarment is the presumptive sanction in this case under
Standards 5.1(a)(6) and 7.1(a).
B.
We next consider the relevant aggravating and mitigating
circumstances found by the referee. The referee found six
aggravating factors under Standard 3.2(b). He found that Mirabal
had a dishonest or selfish motive, engaged in a pattern of
misconduct, committed multiple offenses, engaged in bad faith
obstruction of the disciplinary process, submitted a false statement
during the disciplinary process, and had substantial experience in
4. Under rule 4-8.2(b), a lawyer who is a candidate for judicial office must comply with the applicable provisions of the Code of Judicial Conduct. A candidate for judicial office, under Canon 7A(3)(b), must “maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity, and independence of the judiciary.”
- 31 - the practice of law. See Fla. Stds. Imposing Law. Sancs. 3.2(b)(2)-
(6), (9).
In mitigation, the referee found three mitigating factors under
Standard 3.3(b). He found that Mirabal lacked a prior disciplinary
record, demonstrated a reputation for good character, and that
other penalties and sanctions had been imposed against him. See
Fla. Stds. Imposing Law. Sancs. 3.3(b)(1), (7), (11).
Neither the Bar nor Mirabal challenge the aggravating and
mitigating factors found by the referee. Mirabal, however, argues
that the referee should have found an additional six mitigating
factors. He claims that the record supports a finding that he had
personal or emotional problems, made a timely good faith effort to
rectify the consequences of his misconduct, had a cooperative
attitude during the disciplinary process, engaged in interim
rehabilitation, demonstrated remorse, and suffered prejudice as a
result of unreasonable delay in the disciplinary process. See Fla.
Stds. Imposing Law. Sancs. 3.3(b)(3)-(5), (9)-(10), (12).
“Like other factual findings, a referee’s findings of mitigation
and aggravation carry a presumption of correctness and will be
upheld unless clearly erroneous or without support in the record.”
- 32 - Fla. Bar v. Scheinberg, 129 So. 3d 315, 319 (Fla. 2013) (quoting
Germain, 957 So. 2d at 621). A referee’s failure to find that an
aggravating or mitigating factor applies is afforded the same
deference. Id. Ultimately, the party challenging a referee’s findings
in aggravation or mitigation “must establish there is a lack of
evidence in the record to support such findings or that the record
clearly contradicts the referee’s conclusions.” Fla. Bar v. Horton,
332 So. 3d 943, 949 (Fla. 2019) (quoting Fla. Bar v. Glueck, 985 So.
2d 1052, 1056 (Fla. 2008)).
Our review of the record reveals little, if any, actual support for
any of the additional six mitigating factors sought by Mirabal.
Indeed, the only factor that merits any discussion is Mirabal’s
request that we find that he demonstrated remorse for his
misconduct. See Fla. Std. Imposing Law. Sancs. 3.3(b)(12). As
support for this factor, Mirabal points to his testimony at the
sanctions hearing, where in response to a question from his counsel
about whether he was remorseful, he stated “yes, remorseful, I’m
remorseful as to the mistakes I made.” But “[t]he fact that there is
some evidence in the record to support a finding that a mitigating
factor might apply does not mean that the referee should have
- 33 - necessarily found it applicable.” Fla. Bar v. Herman, 8 So. 3d 1100,
1106 (Fla. 2009). This is especially true here, as the referee at
several points found Mirabal’s testimony not credible, and his
expression of remorse is inconsistent with his actions during these
disciplinary proceedings.
Accordingly, we find no error in the referee’s failure to find any
of the six mitigating factors sought by Mirabal, and we approve the
referee’s findings in aggravation and mitigation.
C.
In the final step of our review of the referee’s recommended
discipline, we look to caselaw for guidance on how we have
disciplined other lawyers for comparable acts of misconduct. In
this case, we find support for the referee’s recommended discipline
in Florida Bar v. Koepke, 327 So. 3d 788 (Fla. 2021). In that case,
we disbarred a lawyer who made a series of false statements in an
alimony dispute with his former wife in an effort to conceal his
receipt of a substantial contingency fee he received as part of a
settlement in a personal injury case. Id. at 790-91. Koepke denied
that any such settlement existed in response to discovery requests
and orders that specifically directed its production, and he did not
- 34 - reveal the settlement’s existence until the judge in the alimony case
reviewed his case file in the personal injury matter. Id. Though he
lacked a prior disciplinary record, we disbarred Koepke based on
his willful lack of candor and the fact that he engaged in a pattern
of deliberate dishonesty for personal gain. See id. at 792-94; see
also Fla. Bar v. St. Louis, 967 So. 2d 108, 122-23 (Fla. 2007)
(disbarring a lawyer who made a series of false or misleading
statements to a court and the Bar for personal gain).
We see little difference between Mirabal’s conduct in this case
and the conduct of the lawyer in Koepke. Mirabal, too, engaged in a
clear and deliberate pattern of dishonesty to advance his own
interests, and he did so at times when he had a duty of honesty and
candor. We are further convinced that disbarment is the correct
sanction in this case when Mirabal’s dishonesty in the judicial
selection process is considered alongside his misconduct during the
Bar’s investigation. The totality of Mirabal’s dishonesty in this case
is simply too great to be offset by any of the findings in mitigation,
or to justify any sanction other than disbarment.
In the end, Mirabal exhibited basic, fundamental dishonesty
with his conduct in this case, and we have repeatedly made plain
- 35 - that such a serious flaw “cannot be tolerated by a profession that
relies on the truthfulness of its members.” Fla. Bar v. Schwartz,
334 So. 3d 298, 303 (Fla. 2022) (quoting Fla. Bar v. Berthiaume, 78
So. 3d 503, 510 (Fla. 2011)). We, accordingly, approve the referee’s
recommended discipline and disbar Mirabal from the practice of law
in Florida.
IV.
The referee’s findings of fact and recommendations as to guilt
are approved, except for the recommendations of guilt as to rules 4-
8.1(a), 4-8.2(b), and Canon 7 of the Code of Judicial Conduct,
which are hereby disapproved. The referee’s recommended
discipline is approved, and Miguel Fernando Mirabal is disbarred
from the practice of law in Florida. Mirabal’s disbarment will be
effective 30 days from the date of this opinion so that he can close
out his practice and protect the interests of existing clients. If
Mirabal notifies this Court in writing that he is no longer practicing
and does not need the 30 days to protect existing clients, this Court
will enter an order making his disbarment effective immediately.
Mirabal must fully comply with rules 3-5.1(h) and, if applicable, 3-
6.1.
- 36 - Judgment is entered for The Florida Bar, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300, for recovery of costs from
Miguel Fernando Mirabal in the amount of $7,123.27, for which
sum let execution issue.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS DISBARMENT.
Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, Jennifer R. Falcone, Bar Counsel, The Florida Bar, Miami, Florida, and Mark Lugo Mason, Bar Counsel, The Florida Bar, Tallahassee, Florida,
for Complainant
Herman J. Russomanno and Herman J. Russomanno III, of Russomanno & Borrello, P.A., Miami, Florida,
for Respondent
- 37 -