The Florida Bar v. Nunes

734 So. 2d 393
CourtSupreme Court of Florida
DecidedApril 29, 1999
Docket91,148, 91,281
StatusPublished
Cited by5 cases

This text of 734 So. 2d 393 (The Florida Bar v. Nunes) 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. Nunes, 734 So. 2d 393 (Fla. 1999).

Opinion

734 So.2d 393 (1999)

THE FLORIDA BAR, Complainant,
v.
David Smith NUNES, Respondent.

Nos. 91,148, 91,281.

Supreme Court of Florida.

April 29, 1999.
Rehearing Denied August 1, 1999.

*394 John F. Harkness, Jr., Executive Director, and John A. Boggs, Staff Counsel, Tallahassee, Florida; and Ronna Friedman Young, Bar Counsel, Fort Lauderdale, Florida, for Complainant.

Richard L. Rosenbaum, Fort Lauderdale, Florida, for Respondent.

PER CURIAM.

We have for review a referee's report finding ethical breaches by respondent, attorney David Smith Nunes, and recommending disciplinary measures after The Florida Bar filed two separate complaints against Nunes. We have jurisdiction. See art. V, § 15, Fla. Const.

CASE NUMBER 91,148

Case number 91,148 arose from a civil lawsuit filed against Nunes. According to the Bar's complaint, the trial judge found that Nunes had willfully failed to comply with discovery and struck his pleadings in the lawsuit, admonishing that "as far as I am concerned, this whole thing is a charade. If you want to take it up to the Fourth [District Court of Appeal], I invite you to, and I think the whole thing should be presented to the Bar. I am disgusted."

The Bar alleged in count one of its complaint that during the course of the lawsuit and subsequent appeal, Nunes had made "inappropriate, frivolous, disparaging, and/or disrespectful remarks concerning opposing counsel," including accusations that opposing counsel had stolen the court file in the case. Specifically, the Bar alleged that Nunes had asserted in one motion that "the Court File mysteriously disappeared and the record show [sic] that [opposing] counsel was the last person who had seen the Court File," and that "[h]ad the Court File been available, the Court would have seen that opposing counsel was not truthful." According to the Bar's complaint, Nunes had asserted in another motion that opposing counsel "had something to do with the disappearance of the Court file in this case," "messed up [the] Court file," "demonstrated his flagrant disregard for Broward County Courts, Judges, the files, and, in general, the whole judicial system," and "should be sanctioned for destroying the present court file." The Bar also alleged that, later in that same motion, Nunes had additionally asserted that opposing counsel "has now turned to another Court file," "has started out in a different division and has removed Pleadings therefrom," "will soon [cause another file to] disappear," and "should not be allowed to have access to any court files." The Bar further alleged that, in a third motion, Nunes had asserted that opposing counsel "should be compelled to show more respect for Broward County Court Judges as his practice of law differs from the way a Broward attorney practices law." According to the Bar's complaint, "[Nunes's] accusations as to opposing counsel did not contain any citations to the record nor was there ever any finding in the trial or appellate court that opposing counsel was responsible for the loss of the court file."[1]

*395 In count two of its complaint, the Bar relatedly alleged that Nunes had "made statements prejudicial to the administration of justice and/or that [he] knew to be false or with reckless disregard as to their truth or falsity concerning the integrity or the qualifications of the trial judges handling the [civil] litigation." Specifically, the Bar alleged that, in one motion, Nunes had asserted that

[t]he Order which was signed, was signed in error by the [judge], who had an extended time on the Criminal Bench. As such, [the judge] may not have been refreshed, relative to the practice of mediation.... What opposing counsel did, he made up an order and had the judge sign it. The Judge, being on the Criminal Bench, may have overlooked the fact that, that was not an order for a date certain, which is normally done in criminal cases, and as such, he inadvertently placed in the order "or it shall be dismissed."

The Bar also alleged that, in a brief before the Fourth District Court of Appeal, Nunes had asserted that "[t]hereafter, the case was assigned to [a female judge] and obviously counsel now felt that what he could not get away with from the two (2) male judges, he could get away with the female judge." Again, according to the Bar's complaint, Nunes's "allegations as to the trial judges did not contain any citation to the record nor was there ever any finding in the trial or appellate court that supported such allegations."[2]

CASE NUMBER 91,281

Case number 91,281 arose from Nunes's continued misconduct involving several former clients. This Court had previously suspended Nunes for ninety days for misconduct involving these and other clients. See Florida Bar v. Nunes, 679 So.2d 744 (Fla.1996).[3] In count one of its complaint, the Bar alleged that Nunes had filed a civil lawsuit against the clients at issue, seeking damages for lost income during the time of his suspension. The Bar's complaint continued that "[d]espite Mr. Nunes having been disciplined by the Supreme Court of Florida for incompetent representation, *396 improper client communication, and charging a clearly excessive fee ... the lawsuit also claimed entitlement to quantum meruit and that the [subject clients] had been unjustly enriched by the services which resulted in discipline." According to the Bar, the trial court dismissed Nunes's lawsuit with prejudice in an order providing that "there never was nor could there be a cause of action against the defendants under the facts of this case ... and that there was `a complete absence of a justiciable issue of either law or fact' and as such, the filing of the suit was frivolous." The Bar further alleged in its complaint that Nunes's appeal of this ruling was dismissed as untimely.[4]

In count two of its complaint, the Bar also alleged that Nunes had continued to represent the subject clients (by filing several pleadings on their behalf) even after he had acknowledged that his representation of them had been terminated;[5] and in count three of its complaint, the Bar further alleged that Nunes then used the unauthorized pleadings to falsely portray that he had won his clients' case so that he could in turn falsely argue in state and federal courts that the suspension imposed by this Court should be overturned and that he was entitled to damages from his clients and others.[6]

THE REFEREE'S RECOMMENDATIONS

The Bar's cases against Nunes were ultimately consolidated and considered before one referee. Nunes failed to timely answer either of the Bar's complaints summarized above, so the referee accordingly granted the Bar's motions for default judgment, and thereafter denied Nunes's motions to set aside same. In accordance with the Bar's allegations (which were deemed admitted by the default judgments), the referee ultimately found Nunes guilty of all the violations charged as set out above.

After a hearing regarding the discipline to be imposed, the referee recommended that Nunes be suspended for one year (and for an indefinite period thereafter until he has shown proof of rehabilitation and has paid costs of the proceedings), followed by two years of probation with a requirement that Nunes pay for and complete twenty-five hours of continuing legal education in ethics. In recommending this discipline, the referee considered in aggravation that Nunes had prior disciplinary offenses (see supra

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