The Florida Bar v. Miller

863 So. 2d 231, 2003 WL 22250387
CourtSupreme Court of Florida
DecidedOctober 2, 2003
DocketSC01-736
StatusPublished
Cited by16 cases

This text of 863 So. 2d 231 (The Florida Bar v. Miller) 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. Miller, 863 So. 2d 231, 2003 WL 22250387 (Fla. 2003).

Opinion

863 So.2d 231 (2003)

THE FLORIDA BAR, Complainant,
v.
Bartley Charles MILLER, Respondent.

No. SC01-736.

Supreme Court of Florida.

October 2, 2003.

*232 John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Vivian Maria Reyes, Bar Counsel, Miami, FL, for Complainant.

Edmund M. Aristone, Jr., Fort Lauderdale, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Bartley Charles Miller. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we approve the findings of the referee but decrease the sanction to a one-year suspension from the practice of law.

FACTS

Respondent Bartley Charles Miller (Miller) represented Dr. Roberta Santini (Santini) in an employment discrimination and sexual harassment action against Cleveland Clinic Florida. In 1997, Miller filed a complaint with the Equal Employment Opportunity Commission (EEOC) and the Broward County Human Rights Division on behalf of Santini against Cleveland Clinic. On or about January 27, 1998, the EEOC sent via certified mail a "Right to Sue Notice" (notice) addressed to Santini at her mother's residence. The notice informed Santini that the EEOC had investigated the charge and that Santini had ninety days from receipt of the notice to file a civil action in state or federal court. The notice, however, did not contain a date. Santini's mother signed for the notice. Santini received the notice by February 2, 1998, and faxed it to Miller's law firm.

On March 2, 1998, the EEOC sent Santini a second right to sue notice, which included the date it was mailed. On May 29, 1998, 116 days after Santini received the first notice and eighty-eight days after she received the second notice, Miller filed a complaint in federal court on behalf of Santini. Thus, the complaint would be considered untimely using the date Santini received the first notice but timely using the date Santini received the second notice.

On October 13, 1998, Miller and Santini attended Santini's deposition, at which Santini produced a file that contained only the second notice. The file purportedly contained all of the documents Santini received from the EEOC. Santini testified that she had not received the first notice. Cleveland Clinic thereafter moved for summary judgment, arguing that (1) Santini's federal claims were time-barred because she failed to file her complaint within ninety days from receipt of the notice, and (2) no basis existed for an equitable tolling of the statutory filing period. In response, Miller argued that the complaint had been timely filed because the ninety-day period did not begin to run until Santini had received the dated notice. In support of his argument, Miller attached the affidavits of Santini's mother, Elsa Santini; Heidi Friedman, a former associate attorney who had assisted Miller with this case; and Roberta Santini. Elsa Santini's affidavit stated that she was never authorized by her daughter to accept mail addressed to her daughter but sent to her address and that, at the time the first notice was sent, she was being medicated for depression and her caretaker often obtained her mail for her. Heidi Friedman's affidavit stated that she had represented Santini in *233 this action and that she never received the first notice, but she did receive the second notice. Roberta Santini's affidavit stated that her mother was not authorized to receive her mail and that she received the second notice.

The federal district court scheduled an evidentiary hearing on Cleveland Clinic's motion for May 21, 1999, and ordered Elsa and Roberta Santini and Heidi Friedman to appear. Miller told Roberta Santini that she was not required to attend this hearing. Elsa Santini testified at the hearing and acknowledged her signature on the return receipt of the first notice. She stated, however, that she had no memory of receiving the notice. Heidi Friedman was also present at the hearing, but Miller attempted to prevent her from testifying, arguing to the magistrate judge that her testimony was unnecessary. The magistrate judge disagreed, and Friedman testified that she had retrieved the firm's file prior to testifying and that the file contained the first, undated notice. The magistrate judge thereafter terminated the hearing to have Roberta Santini appear and scheduled a second evidentiary hearing for June 1, 1999.

At the June 1, 1999, hearing, Miller informed the court for the first time that he was abandoning his argument that Santini did not receive the first, undated notice. Santini testified that on or before February 2, 1998, she had received the first notice, which she faxed to Miller's office. Miller testified that he did not recall having received the first notice. Miller's handwritten time sheets, dated February 2, 1998, however, indicated that he in fact recorded thirty minutes expended on reviewing and following up on the first notice. The law firm's file also contained a memorandum written by Miller between February 2, 1998, and February 13, 1998, acknowledging receipt of the first notice and including a reminder to draft the complaint by February 13, 1998.

The federal district court granted Cleveland Clinic's motion for summary judgment. On appeal, the Eleventh Circuit Court of Appeals affirmed the district court's decision, holding as a matter of law that receipt of a second EEOC notice does not constitute grounds for equitable tolling where a party has actual knowledge of the first notice. Santini v. Cleveland Clinic Florida, 232 F.3d 823, 825 (11th Cir.2000).

On September 2, 1999, the federal court issued an order imposing sanctions on Miller for "concealing critical evidence, advancing spurious arguments, and submitting misleading affidavits and testimony." The court concluded that Miller engaged in a bad-faith course of deceit and ordered Miller to pay Cleveland Clinic its excess costs, expenses, and attorney fees incurred as a result of his concealing the first notice, pay into the registry of the federal court a fine of $1,000, and attend five hours of continuing education in the subject of legal ethics. The Eleventh Circuit Court of Appeals affirmed the district court's order. Santini v. Cleveland Clinic Florida, No. 01-11229, 32 Fed.Appx. 533, 2002 WL 369886 (11th Cir. Feb. 15, 2002). The Florida Bar subsequently filed the instant complaint against Miller based on his representation of Roberta Santini.

The referee recommended that Miller be found guilty of violating the following Rules Regulating The Florida Bar: 4-3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 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 proceeding, or counsel or assist a witness to testify falsely); and 4-8.4(c) (a *234 lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The referee found that Miller intentionally failed to disclose a crucial piece of evidence that he knew was the main focus of the legal proceeding and intentionally interfered with the legal process.

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863 So. 2d 231, 2003 WL 22250387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-miller-fla-2003.