The Florida Bar v. Rubin

362 So. 2d 12, 1978 Fla. LEXIS 4888
CourtSupreme Court of Florida
DecidedJuly 27, 1978
Docket53329, 53110
StatusPublished
Cited by11 cases

This text of 362 So. 2d 12 (The Florida Bar v. Rubin) 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. Rubin, 362 So. 2d 12, 1978 Fla. LEXIS 4888 (Fla. 1978).

Opinion

362 So.2d 12 (1978)

THE FLORIDA BAR, Complainant,
v.
Ellis RUBIN, Respondent.

Nos. 53329, 53110.

Supreme Court of Florida.

July 27, 1978.
Rehearing Denied October 2, 1978.

*13 Cecyl L. Pickle, Bar Counsel, Miami, Nicholas R. Friedman, Fort Lauderdale, and G. Lynn Kilpatrick, Tallahassee, Asst. Staff Counsel, for complainant.

Ellis Rubin, in pro per.

PER CURIAM.

This proceeding involves The Florida Bar's efforts to take disciplinary action against Ellis Rubin, a member of The Florida Bar,[1] and Rubin's attempt to prohibit the Bar's action on the ground that the Bar has failed to comply with various provisions of our disciplinary rules.[2] The Bar acknowledges some violations of the rules, but suggests that while we might mitigate any punishment that would otherwise be imposed by this Court, we should not by reason of its errors exonerate Rubin's conduct. The implications of the question thus presented bear a significance that reaches far beyond this single proceeding.

In 1972 and 1974, Rubin was formally charged with six violations of the Code of Professional Responsibility and the Integration Rule stemming from a variety of allegations that he had neglected clients' cases. In 1975, Rubin was charged with three additional Code violations. Hearings were in due course held on all of the Bar's charges. On October 29, 1976, referee Richard M. White filed his report with the Bar as to the first set of charges, finding Rubin guilty on three counts and recommending as punishment a public reprimand with two years probation. On May 9, 1977, referee Wesley G. Carey filed his report with the Bar on the other charges, finding Rubin guilty on two counts and recommending a private reprimand accompanied by six months probation.

On November 16, 1977, the Bar served Rubin with the reports of both referees, noted the approval of all findings by the Bar's Board of Governors, and stated that the Board had voted to waive confidentiality "in the limited manner provided for in Rule 11.12(4)." The letter further stated that the Board intended to waive confidentiality "in total pursuant to Rule 11.12(5)" unless Rubin petitioned within 15 days to maintain confidentiality. On November 23, well before the 15-day grace period had expired, the Bar issued a press release informing the public that Bar referees had found Rubin guilty of neglecting legal matters and that the Board of Governors intended to petition the Court for disbarment. This information made headlines in several Florida newspapers and was reported nationwide.[3]

On January 6, 1978 — fourteen months after the Bar received referee White's report and eight months after it had received referee Carey's — the Bar filed both referees' reports with the Court. Rubin promptly sought to prohibit further action on the referees' reports pursuant to Rule 11.09(5), and shortly thereafter the Bar filed its petition for review of the referees' reports with its request for disbarment. After further *14 procedural skirmishing between the parties, we granted Rubin's motion to stay proceedings on the Bar's petition for review pending disposition of the prohibition matter, and we directed the Bar to show cause why all disciplinary action against Rubin should not be dismissed as a result of the Bar's apparent failure to comply with the mandates of the Integration Rule. The Bar's response, the various other pleadings which have been filed, and the parties' briefs have sufficiently framed the issues before us so as to warrant our dispensing with oral argument.[4] Our analysis of the four points raised by Rubin in support of this effort to prohibit our consideration of the referees' reports and the Bar's recommended discipline reveals that they are dispositive of the entire proceeding.

(1) Throughout the course of these proceedings, Rule 11.06(9)(b) has provided that any referee's report recommending a public reprimand shall be "filed promptly ... in the Supreme Court." Referee White's report, which recommended a public reprimand, was not filed with us until fourteen months after its receipt by the Bar. Rubin contends that this filing clearly was not prompt, and that the Bar's violation of the rule denies him due process.[5] The Bar attributes the delay to its internal procedures for processing disciplinary cases, the difficulty of reviewing the voluminous records in this case, and its desire to hold referee White's report for consolidation with referee Carey's report. While conceding that this case "could have been handled more expeditiously," the Bar argues that the delay here was not so inordinate as to justify dismissal of the charges, and that an appropriate judicial response might be to consider the delay as a factor going to mitigation of punishment.[6]

(2) Rule 11.06(9)(b) states that a report recommending a private reprimand, such as referee Carey's, "shall not be filed in the Supreme Court unless review is sought as hereinafter provided," and Rule 11.09(3)(b) directs that such a report "shall be promptly filed in the Supreme Court ... upon the filing of a petition for review." In the present case, the Bar submitted referee Carey's report to us before a petition for review was filed. Rubin contends that this action was obviously improper under the rules and that by proceeding in this way the Bar was able prematurely to breach the confidentiality which otherwise surrounds a private reprimand.[7]

(3) Rule 11.09(3)(a) provides that proceedings to review a referee's report, whether initiated by the Bar or by the affected attorney, "shall be commenced [by filing a petition for review with the Supreme Court] within 30 days after the mailing date of a letter ... serving a copy of the referee report on the respondent," and that "[t]he filing of such petition ... shall be jurisdictional as to a review to be procured as a matter of right." The Bar did not file its petition for review with the Court until 81 days after its November 16 letter to Rubin. Even the referees' reports were not filed until 51 days after the Bar's letter. Although the Bar now concedes that the rule's 30-day period commenced with the mailing of its letter to Rubin,[8] it suggests that the untimely filing of its petition does not preclude the Court from hearing the case on the merits. Rather, the Bar reads the rule to mean that an *15 untimely filing is only jurisdictional as to a review "as a matter of right," and that the Court may exercise its discretion to consider the merits where the interests of the public and the integrity of the Bar are at stake.

(4) Rules 11.12(4) and 11.12(5) relate to confidentiality. The first prohibits disclosure of "information concerning the pendency or status of an investigation or trial or other confidential matter" until the case is filed in the Court, "or unless authorized by the Board of Governors." The second, which authorizes additional disclosure with respect to certain matters, states that "prior to any waiver of confidentiality, the accused shall have 15 days to petition the full Board of Governors to maintain confidentiality... ." Notwithstanding that the Board's letter of November 16 purported to give Rubin 15 days to petition to maintain confidentiality, the Bar issued its press release seven days after its letter to Rubin and thereby precipitated widespread publicity that was both unfavorable to and unanticipated by him.[9]

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Bluebook (online)
362 So. 2d 12, 1978 Fla. LEXIS 4888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-rubin-fla-1978.