The Florida Bar v. Odiator Arugu

• Court: Supreme Court of Florida
• Decided: November 10, 2022
• Docket: SC21-933
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC21-933 ____________

THE FLORIDA BAR, Complainant,

vs.

ODIATOR ARUGU, Respondent.

November 10, 2022

PER CURIAM.

We have for review a referee’s report recommending that

Respondent, Odiator Arugu, be found guilty of professional

misconduct in violation of the Rules Regulating The Florida Bar

(Bar Rules), and that he be suspended from the practice of law for

sixty days as a sanction for his misconduct. We have jurisdiction.

See art. V, § 15, Fla. Const. For the reasons discussed below, we

approve the referee’s findings of fact and recommendations as to

guilt, except as to Bar Rule 4-3.4(a), which we disapprove. We also disapprove the referee’s recommended discipline and instead

suspend Arugu from the practice of law for ninety-one days.

BACKGROUND

Arugu represented George Rodriguez in his divorce

proceedings. Rodriguez’s father-in-law claimed that he owned a

50% undivided interest in the marital home. On May 13, 2020,

Arugu prepared and filed with the circuit court a Notice of

Production from Non-Party Freedom Mortgage Corporation

(Freedom), along with a proposed subpoena duces tecum. The

proposed subpoena listed seven sets of records Arugu wanted

Freedom to produce pertaining to Rodriguez’s wife and father-in-

law. After the ten-day period to serve an objection to the proposed

subpoena expired, 1 Arugu served a modified version of the

subpoena on Freedom, seeking the production of three additional

sets of records. Specifically, Arugu sought credit check reports and

mortgage loan applications for Rodriguez’s wife and father-in-law,

and any power of attorney executed by Rodriguez’s father-in-law. In

1. Under Florida Family Law Rule of Procedure 12.351(b) (Production of Documents and Things Without Deposition) (Procedure), a party may serve an objection to production under the rule within ten days of service of the notice. -2- a January 4, 2021, sworn statement in the Bar disciplinary case,

Arugu explained that after the ten-day period to serve an objection

expired, when he was about to issue the subpoena, it occurred to

him that he did not request those records and decided to include

them in the subpoena.

On May 27, 2020, Arugu filed with the circuit court a copy of

the modified subpoena that he served on Freedom. Wade Luther,

who represented Rodriguez’s wife, emailed a letter to Arugu the

same day, objecting to the “materially and substantially different”

subpoena Arugu served on Freedom compared to the one he had

noticed two weeks earlier. Luther demanded that Arugu withdraw

the subpoena. Arugu responded to Luther’s email stating that the

modified subpoena was not materially and substantially different

than the noticed one, and he asked Luther for a clarification of the

rules and to support his position in respect to the subpoena. Arugu

did not contact Freedom to withdraw the modified subpoena, and

Freedom ultimately produced some records in response to the

subpoena.

-3- In an order dated September 25, 2020, the circuit court later

found that Arugu had improperly sent a subpoena to Freedom that

was a different version of the one he provided notice of.

The referee found that because Arugu failed to provide notice

that he was seeking the additional records in the subpoena, he

failed to give interested parties who were served with the subpoena

an opportunity to object to the production of the additional records.

The referee recommends that Arugu be found guilty of

violating Bar Rules 3-4.3 (Misconduct and Minor Misconduct);

4-3.4(a) (a lawyer must not unlawfully obstruct another party’s

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); 4-3.4(c) (a lawyer must not knowingly disobey an

obligation under the rules of a tribunal except for an open refusal

based on an assertion that no valid obligation exists); 4-3.4(d) (a

lawyer must not make a frivolous discovery request or intentionally

fail to comply with a legally proper discovery request by an opposing

party); 4-4.1(a) (in the course of representing a client, a lawyer must

not make a false statement of material fact or law to a third person); -4- 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation); and 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).

The referee recommends that Arugu be suspended from the

practice of law for sixty days and that he be assessed the Bar’s

costs. Both Arugu and the Bar filed notices of intent to seek review

of the referee’s report. Arugu challenges the recommendation that

he be found guilty of violating Bar Rules 4-3.4, 4-4.1, and 4-8.4(c),

as well as the recommended sanction. The Bar challenges the

recommended sanction.

ANALYSIS

A. The Referee’s Recommendation as to Guilt

First, Arugu challenges the referee’s findings of fact and

recommendations of guilt as to Bar Rules 4-3.4, 4-4.1, and 4-8.4(c).

If a referee’s findings of fact are supported by competent,

substantial evidence in the record, this Court will not reweigh the

evidence and substitute its judgment for that of the referee. Fla.

Bar v. Gwynn, 94 So. 3d 425, 428 (Fla. 2012); see Fla. Bar v.

Barrett, 897 So. 2d 1269, 1275 (Fla. 2005). The referee’s factual -5- findings must be sufficient under the applicable rules to support

the recommendations regarding guilt. See Fla. Bar v. Shoureas, 913

So. 2d 554, 557-58 (Fla. 2005); Fla. Bar v. Spear, 887 So. 2d 1242,

1245 (Fla. 2004). The party challenging the referee’s finding of fact

and recommendations as to guilt has the burden 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).

Bar Rule 4-3.4(a)

Under Bar Rule 4-3.4(a), a lawyer must 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.” R. Regulating Fla. Bar 4-3.4(a). The

referee made no findings that Arugu obstructed others’ access to

evidence; unlawfully modified, destroyed, or concealed a document

or other material; or that he counseled or assisted another person

to do any such act. There are thus insufficient findings to support

the referee’s recommendation that Arugu be found guilty of violating -6- rule 4-3.4(a). See Shoureas, 913 So. 2d at 557-58. Accordingly, we

disapprove the referee’s recommendation of guilt as to Bar Rule

4-3.4(a).

Bar Rule 4-3.4(c)

Bar Rule 4-3.4(c) states that a lawyer must not “knowingly

disobey an obligation under the rules of a tribunal.” R. Regulating

Fla. Bar 4-3.4(c). Under Florida Family Law Rule of Procedure

12.351(a) (Production of Documents and Things Without

Deposition), a party may seek the production of documents and

things from a nonparty by issuance of a subpoena. The party

desiring the production must serve all other parties with notice of

the intent to serve the subpoena, and the proposed subpoena must

be attached to the notice. See Fla. Fam. L. R. P. 12.351(b). If no

objection is made, the issued subpoena must be “identical” to the

proposed subpoena attached to the notice. See Fla. Fam. L. R. P.

12.351(c). Here, the record clearly supports the referee’s finding,

and Arugu does not dispute, that the subpoena he served on

Freedom was different from the one he attached to his notice of

intent to serve the subpoena. Arugu explained that after the ten-

day period for objecting to the proposed subpoena expired, he -7- realized that he had failed to include certain records in the

proposed subpoena and decided to include them in the subpoena

he was about to serve on Freedom, nonetheless. We find that in

knowingly serving Freedom with a different subpoena than the one

attached to the notice served on the other parties, Arugu knowingly

flouted an obligation under the rules of a tribunal, in violation of

Bar Rule 4-3.4(c).

Bar Rule 4-3.4(d)

Bar Rule 4-3.4(d) states that a lawyer must not “in pretrial

procedure, make a frivolous discovery request or intentionally fail to

comply with a legally proper discovery request by an opposing

party.” R. Regulating Fla. Bar 4-3.4(d). In Florida Bar v. Broida,

574 So. 2d 83 (Fla. 1991), we found that the respondent, who

among other things filed a subpoena requesting records previously

requested and objected to, violated Bar Rule 4-3.4(d) and others.

Here, Arugu testified that he did not actually send the

modified subpoena to Freedom until after Luther advised him of his

objection. In fact, Luther requested that Arugu not serve the

modified subpoena if he had not yet done so, or that he contact

Freedom to advise it that the subpoena was withdrawn. Arugu -8- declined to do both. Arugu also could have filed an amended notice

of intent to serve subpoena, with the amended subpoena attached,

and waited ten additional days before he served the modified

subpoena. He chose not to. Arugu proceeded to serve the modified

subpoena despite the known objection and without advising

Freedom of the objection. We find that knowingly serving a

subpoena on Freedom seeking items for which he did not provide

proper notice to the other parties, and which he knew opposing

counsel objected to, without first having the court resolve the issue

constituted a frivolous discovery request. We find the record

supports the referee’s finding of fact and that such findings are

sufficient to support the recommendation that Arugu violated Bar

Rule 4.3.4(d).

Bar Rules 4-4.1 and 4-8.4(c)

Bar Rule 4-4.1 states that in the course of representing a

client, a lawyer shall not knowingly “make a false statement of

material fact or law to a third person.” R. Regulating Fla. Bar

4-4.1(a). Partially true but misleading statements as well as

omissions can constitute a misrepresentation, in violation of Bar

Rule 4-4.1. See R. Regulating Fla. Bar 4-4.1, cmt; Fla. Bar v. Scott, -9- 39 So. 3d 309, 317 (Fla. 2010) (finding the respondent’s failure to

tell a third party about several pieces of information violated Bar

Rule 4-4.1(a) even though the withheld information “was public and

nonconfidential”). Similarly, Bar Rule 4-8.4(c) states that a lawyer

shall “not engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation.” R. Regulating Fla. Bar 4-8.4(c).

Here, the evidence shows that after Arugu filed a copy of the

modified subpoena, Luther emailed Arugu, objecting to the

subpoena on grounds that it was materially and substantially

different from the version that Arugu had filed on May 13, 2020,

and requesting that Arugu not serve the modified subpoena, if he

had not done so, or that he contact Freedom to withdraw the

subpoena. Under Family Law Rule of Procedure 12.351(b), when a

party gives notice of a request for the production of records and

things and another party serves an objection to the production

within ten days of service of the notice, the records or things must

not be produced pending resolution of the objection. Instead,

however, Arugu proceeded to serve the modified subpoena despite

being aware of the objection. The modified subpoena was delivered

on June 4, 2020, less than ten days after Arugu filed a copy of the - 10 - modified subpoena with the circuit court. He failed to inform

Freedom of Luther’s objection, thereby misrepresenting to Freedom

that it was required to produce all records listed on the subpoena.

As a result, Freedom produced many of the requested documents.

Arugu argues he did not engage in intentional misconduct.

However, the intent element can be satisfied merely by showing that

the conduct was deliberate or knowing. See Fla. Bar v. Head, 27

So. 3d 1, 9 (Fla. 2010). Clearly, Arugu was aware that the modified

subpoena was substantially different from the one attached to his

notice. He was also aware of the objection to the modified

subpoena before he actually served the subpoena. Therefore, we

find that the record clearly supports a finding that Arugu knowingly

engaged in dishonest and deceitful conduct in violation of rules

4-4.1 and 4-8.4(c).

Accordingly, we approve the referee’s findings of fact and

recommendations of guilt, except as to Bar Rule 4-3.4(a), which we

disapprove.

- 11 - B. Discipline

We now turn to the referee’s recommended discipline, a sixty-

day suspension. In 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, ultimately, it is this Court’s

responsibility to order the appropriate sanction. See Fla. Bar v.

Picon, 205 So. 3d 759, 765 (Fla. 2016); Fla. Bar v. Anderson, 538

So. 2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla. Const.

The referee recommended a sixty-day suspension, finding that

Arugu’s conduct was not as egregious as in other cases relied on by

the Bar, including Florida Bar v. Berthiaume, 78 So. 3d 503 (Fla.

2011). We agree with the referee that a suspension is the

appropriate sanction in this case. See Fla. Stds. Imposing Law.

Sancs. 6.2(b) (“Suspension is appropriate when a lawyer knowingly

violates a court order or rule and causes injury or potential injury

to client or a party or causes interference or potential interference

with a legal proceeding.”); 7.1(b) (“Suspension is appropriate when a

lawyer knowingly engages in conduct that is a violation of a duty

owed as a professional and causes injury or potential injury to a

client, the public, or the legal system.”). Arugu knowingly served - 12 - Freedom with a modified version of the subpoena that he had filed

with the circuit court, even after Luther advised him that he should

not do so. As a result, interested parties did not have the

opportunity to object to the production of the additional records,

which Freedom ultimately produced in response to the modified

subpoena. However, we disagree with the referee’s conclusion that

Arugu’s conduct was not sufficiently egregious to warrant a more

severe sanction.

In Berthiaume, the respondent was suspended for ninety-one

days for violating Bar Rules 4-8.4(c) and 4-8.4(d) after she served a

fraudulent subpoena on a bank, outside the context of litigation

and without legal authority, in an effort to conduct her own

personal investigation into a client’s private finances. 78 So. 3d at

511. We noted then that such dishonest conduct “demonstrates

the utmost disrespect for the court and is destructive to the legal

system as a whole.” Id. at 510.

While Arugu issued his subpoena in the context of an ongoing

litigation, his conduct is just as egregious as that at issue in

Berthiaume. Arugu served the modified subpoena on Freedom even

though opposing counsel advised him that doing so was improper - 13 - and asked him to not serve the modified subpoena. Arugu claims

he served the modified subpoena despite the objection because

opposing counsel did not give a basis for the objection. However,

Arugu, who was admitted to the Bar in 1995, could have conducted

his own research to determine whether he was in compliance with

the rules of procedure. Instead, he knowingly disregarded the

objection and served the subpoena on Freedom with no mention of

the objection. We conclude that Arugu’s dishonest behavior

warrants a ninety-one-day suspension; it demonstrates disrespect

for the court and is destructive to the legal system as a whole.

CONCLUSION

recommendations as to guilt, except for the recommendation that

Arugu be found guilty of violating Bar Rule 4-3.4(a), which we

disapprove. We disapprove the referee’s recommended sanction

and instead suspend Arugu from the practice of law for ninety-one

days. The suspension will be effective thirty days from the filing of

this opinion so that Arugu can close out his practice and protect

the interests of existing clients. If Arugu notifies this Court in

writing that he is no longer practicing and does not need the thirty - 14 - days to protect existing clients, this Court will enter an order

making the suspension effective immediately. Arugu shall fully

comply with Rule Regulating The Florida Bar 3-5.1(h). Arugu shall

also fully comply with Rule Regulating The Florida Bar 3-6.1, if

applicable. In addition, Arugu shall accept no new business from

the date this opinion is filed until he is reinstated. Arugu is further

directed to comply with all other terms and conditions of the report.

Judgment is entered for The Florida Bar, 651 East Jefferson

Street, Tallahassee, Florida 32399-2300, for recovery of costs from

Odiator Arugu in the amount of $3,098.57, for which sum let

execution issue.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, COURIEL, and GROSSHANS, JJ., concur. FRANCIS, J., did not participate.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS SUSPENSION.

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, and Daniel James Quinn, Bar Counsel, The Florida Bar, Orlando, Florida; and Tiffany A. Roddenberry, Kevin W. Cox, and Kathryn Isted of Holland & Knight LLP, Tallahassee, Florida, - 15 - for Complainant

Barry W. Rigby of Law Offices of Barry Rigby, P.A., Winter Park, Florida,

for Respondent

- 16 -