IN THE SUPREME COURT OF FLORIDA - FL Courts€¦ · · 2015-12-094-1.7(a)(2) ... the Court's...

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IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant,

v.

MARK F. GERMAIN,

Respondent.

Case No. SC12-1981

TFB File No. 2012-30,669(5B)

Case No. SC12-2289

TFB File No. 2013-90,047(5B)(OSC)

ANSWER BRIEF

JoAnn Ma rie Stalcup, Bar Counsel

The Florida Bar

1000 Legion Place, Suite 1625

Orlando, Florida 32801-1050

(407) 425-5424

Florida Bar No. 972932

[email protected]

[email protected]

Kenneth Lawrence Marvin, Staff Counsel

The Florida Bar

651 E. Jefferson Street

Tallahassee, Florida 32399-2300

(850) 561-5600


[email protected]

John F. Harkness, Jr., Executive Director

The Florida Bar



(850) 561-5600


[email protected]

Electronically Filed 10/31/2013 10:12:48 AM ET

RECEIVED, 10/31/2013 10:13:42, Thomas D. Hall, Clerk, Supreme Court

mailto:[email protected]:[email protected]:[email protected]:[email protected]

i

TABLE OF CONTENTS............................................................................................i

TABLE OF CITATIONS.......................................................................................... ii

SYMBOLS AND REFERENCES .............................................................................1

STATEMENT OF THE CASE..................................................................................2

STATEMENT OF THE FACTS................................................................................4

SUMMARY OF ARGUMENT ...............................................................................11

ARGUMENT ...........................................................................................................12

ISSUE I ....................................................................................................................12

THE REFEREES RECOMMENDATIONS AS TO FACTS AND

FINDINGS OF GUILT ARE WELL SUPPORTED BY THE COMPETENT,

SUBSTANTIAL RECORD EVIDENCE.

ISSUE II ...................................................................................................................17

THE REFEREES RECOMMENDED DISCIPLINE OF PERMANENT

DISBARMENT IS APPROPRIATE GIVEN THE FACTS, CASE LAW,

AND STANDARDS FOR IMPOSING LAWYER SANCTIONS.

CONCLUSION ........................................................................................................27

CERTIFICATE OF SERVICE ................................................................................29

CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN ........30

TABLE OF CONTENTS

Cases

Dodd v. The Florida Bar, 118 So.2d 17 (Fla. 1960) ................................................22 The Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011) ...........................................22

The Florida Bar v. Cox, 718 So.2d 788 (Fla. 1998).................................................22 The Florida Bar v. Draughon, 94 So.3d 566 (Fla. 2012) .........................................15

The Florida Bar v. Flinn, 575 So.2d 624 (Fla. 1991)...............................................23 The Florida Bar v. Germain, 957 So.2d 613 (Fla. 2007) .........................................18

The Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009) ......................................16, 22 The Florida Bar v. Kassier, 711 So.2d 515 (Fla. 1998) ...........................................21

The Florida Bar v. Klein, 774 So.2d 685 (Fla. 2000) ........................................22, 23 The Florida Bar v. Lord, 433 So.2d 983 (Fla. 1983) ...............................................26

The Florida Bar v. MacMillan, 600 So.2d 457 (Fla. 1992)......................................13 The Florida Bar v. Niles, 644 So.2d 504 (Fla. 1994)...............................................12

The Florida Bar v. OConnor, 945 So.2d 1113 (Fla. 2006) ...............................21, 22 The Florida Bar v. Poe, 786 So.2d 1164 (Fla. 2001) ...............................................24

The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970) ..........................................12 The Florida Bar v. Rotstein, 825 So.2d 241 (Fla. 2003) ..........................................22

The Florida Bar v. Spear, 887 So.2d 1242 (Fla. 2004) ......................................17, 26 The Florida Bar v. Thompson, 994 So.2d 306 (Fla. 2008) ......................................24

The Florida Bar v. Vining, 721 So.2d 1164 (Fla. 1998) ....................................12, 13 The Florida Bar v. Vining, 761 So.2d 1044 (Fla. 2000) ..........................................12

Other Authorities Cited

Rules

3-5.1(c) .....................................................................................................................10 4-1.1 ...........................................................................................................................2

4-1.7(a)(2) ..................................................................................................................3 4-3.4(b).......................................................................................................................3 4-8.4(a) .......................................................................................................................3 4-8.4(d).......................................................................................................................3

TABLE OF CITATIONS

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SYMBOLS AND REFERENCES

Complainant will be referred to as The Florida Bar, or as the bar. Mark F.

Germain, respondent, will be referred to as respondent throughout this brief.

References to the report of referee shall be by the symbol ROR followed by

the appropriate page number.

References to specific pleadings will be made by title.

The transcript of the final hearing held on March 21, 2013, shall be referred

to as "T-I" followed by the cited page number.

The transcript of the disciplinary hearing held on April 11, 2013, shall be

referred to as "T-II" followed by the cited page number.

The bar's exhibits will be referred to as "B-Ex." followed by the exhibit

number.

Respondents exhibits will be referred to as "R-Ex." followed by the exhibit

number.

1

STATEMENT OF THE CASE

On September 14, 2012, The Florida Bar filed a complaint against

respondent, which was subsequently assigned Supreme Court Case No. SC12-1981.

On October 18, 2012, The Honorable Stanley H. Griffis, III was appointed as

referee for Case No. SC12-1981.

On October 25, 2012, the bar filed a Petition for Contempt and Order to

Show Cause due to the finding of probable cause against respondent for misconduct

which occurred during his probationary period involving his non-compliance with

the Court's order dated May 12, 2010. On December 5, 2012 The Supreme Court

of Florida issued its Order to Show Cause in Case No. S C12-2289, dire cting

respondent to state why he should not be held in contempt or other discipline

imposed as set forth in The Florida Bars Petition. By order dated January 31,

2013, the Court consolidated Case Nos. SC12-1981 and SC12-2289 f or all review

purposes. On February 4, 2013, The Honorable Stanley H. Griffis, III was also

appointed as referee for Case No. SC12-2289.

Judge Griffis entertained the final hearing on March 21, 2013, and conducted

a disciplinary hearing on April 11, 2013. The referee entered his r eport of referee

on June 17, 2013, finding respondent guilty of violating the following Rules

Regulating The Florida Bar in Case No. SC12-1981: 4-1.1 [ Competence]; 4-

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1.7(a)(2) [Conflict of Interest; Current Clients]; 4-3.4(b) [Fairness to Opposing

Party and Counsel]; 4-8.4(a), (d) [Misconduct] (ROR-9-10). In Case No. SC12-

2289, the referee found respondent in contempt for violating his disciplinary

probation ( ROR-15). The referee further recommended that respondent be

permanently disbarred from the practice of law and that he pay the bars

disciplinary costs (ROR-15).

Respondent filed his Petition for Review on or about August 13, 2013. On or

about August 30, 2013, respondent filed a Request for Extension of Time to File

Initial Brief, which the Court granted on September 4, 2013. Respondent filed his

Initial Brief on or about October 16, 2013.

3

STATEMENT OF THE FACTS

Case No. SC12-1981

In this matter, the bar adopts the referees findings of fact as set forth in his

report. The following facts are taken from the report of referee and as otherwise

noted.

On or about July 1, 2011, Jeffrey Bowman was arrested in Lake County,

Florida, f ollowing an alleged domestic battery on Bonnie DePaolo (B-Ex. 5).

Jeffrey Bowman was later released a nd or dered to have no contact with Ms.

DePaolo as a condition of his pretrial release (T-1, p. 11).

Assistant State Attorney, C hristopher Shropa, m et Bonnie DePaolo on the

day of Jeffrey Bowman's bond hearing. Ms. DePaolo was very upset that Jeffrey

Bowman was bonding out of jail (T-I, p. 203-204). Jeffrey Bowman was the

subject of a prior injunction with Ms. DePaolo from 2007 (B-Ex. 3). Ms. DePaolo

also went to the hospital some time after the incident for injuries Jeffrey Bowman

allegedly caused (B-Ex. 6). Ms. DePaolo's sister, Rita Hazlette, further testified

that a Sheriffs Deputy came to her house to warn her that Jeffrey Bowman

threatened to kill her (T-I, p. 384). She testified that Jeffrey Bowman came into her

yard, angry and waving a gun (T-1, p. 385). Ms. DePaolo was staying with Ms.

Hazlette at the time (T-I, p. 383).

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In early July 2011, respondent agreed to represent Ms. DePaolo. Respondent

called Jeffrey Bowman and requested a meeting at Denny's Restaurant in order to

make it "all go away" (T-I, p. 81, l. 15-16). Jeffrey Bowman testified that the two

discussed getting his belongings back and dropping the prosecution for "cash" (T-I,

p. 82, l. 11-12). Jeffrey Bowman did not agree, and the settlement was not finalized

(T-1, p. 82).

Respondent then contacted attorney John Bruce Bowman, who is the brother

of Jeffrey Bowman (T-I, p. 163-164). Respondent suggested that Jeffrey Bowman

pay a "substantial" amount of money to avoid prosecution (T-I, p. 164, l. 3-5). John

Bruce Bowman indicated that the suggestion was extortion and he would not be a

part of it (T-I, p. 164). He later reviewed a settlement agreement that was

negotiated between Jeffrey Bowman and respondent (T-I, p. 164). John Bruce

Bowman also indicated that respondent never discussed a civil settlement or claim

(T-I, p. 167). He testified that the call was about saving money with a criminal

lawyer and getting money to resolve a criminal matter (T-I, p. 167).

Respondent testified that the content of a proposed settlement agreement was

contained in an e-mail to Jeffrey Bowman and John Bruce Bowman (T-I, p. 358).

John B ruce Bowman maintained that he never received a copy because of a faulty

e-mail address (T-I, p. 165-166). Respondent also did not have Ms. DePaolo's

5

medical bills (which later exceeded $3,000.00) at the time of the agreement (T-I, p.

405). Respondent tried to resolve the case before a July 14, 2011 meeting between

the State Attorney's Office and Ms. DePaolo, so that Jeffrey Bowman would not

have to ''spend money" on a criminal defense attorney (T-I, p.168, l. 1-2).

Respondent testified that he was aware of the bar rules prohibiting compensating

people to drop criminal charges (T-I, p. 415). Respondent did not call the Florida

Bar Ethics Hotline during the preparation of the agreement (T-I, p. 229).

Respondent then prepared a settlement agreement in which Ms. DePaolo

would sign an Intent Not to Prosecute and in good faith make every effort to ensure

that Jeffrey Bowman was not prosecuted, und er certain conditions (B-Ex. 1).

Paragraph three of the settlement agreement contained the following language:

"THAT BONNIE DEPAOLO agrees to s ign an Intent Not

to Prosecute on July 14, 2011, in Lake County case number

2011-MM-4206, (Battery-Touch Strike), during her meeting

with the State Attorney's Office and that she will in good

faith make every effort to ensure that there is no prosecution

in said matter."

The Agreement also contained the following statement:

"I, attorney Mark F. Germain, hereby acknowledge receipt

of $1,500 from JEFFREY ALLEN BOWMAN on behalf of

BONNIE DEPAOLO as compensation for the concessions

made herein."

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http:3,000.00

The agreement was signed July 10, 2011, by both respondent and Ms.

DePaolo (B-Ex. 1). However, respondent never received the $1,500.00 from

Jeffrey Bowman, and Mr. Bowman never signed the agreement.

Soon after the agreement was signed by respondent, attorney James Hope,

respondent's supervising attorney for his dis ciplinary probation, received a call from

respondent regarding the agreement at issue (T-I, p. 224-225). Mr. Hope dissuaded

respondent from using the language in paragraph three, but respondent continued to

press as to why he thought the language was appropriate (T-I, p. 225-226). Mr.

Hope told respondent, "I wouldn't touch it with a ten-foot pole" (T-I, p. 226, l. 14-

15). Respondent then admitted that the agreement was not a proposal, and that he

had already signed it (T-I, p. 226).

State Attorney's Victim Advocate, Audrey Poe, met with Ms. DePaolo on

July 14, 2011 ( T-I, p. 121). She took information regarding the July 1, 2011

incident. During the meeting, Ms. DePaolo provided the settlement agreement to

Ms. Poe (B-Ex. 1; T-I, p. 121-122). Respondent's and Ms. DePaolo's signatures

were on the agreement (B-Ex. 1). Ms. DePaolo tol d Ms. Poe that she went to

respondent for counseling, but determined that respondent was not working for her

best interests (T-I, p. 123-124). Ms. DePaolo expressed tha t she feared for her life

from Jeffrey Bowman (T-I, p. 125). She also indicated tha t respondent advised her

7

http:1,500.00

that it would be in her best interests to sign the agreement (T-I, p. 125). Ms.

DePaolo learned about filing for a Domestic Violence Injunction from Ms. Poe and

filed one the next day, July 15, 2011 (T-I, p. 124). At the final hearing, Ms.

DePaolo contradicted many of these statements, but the referee did not f ind such

testimony credible (T-I, p. 248-249; ROR-6).

Assistant State Attorney, R obin Lesser, was later assigned to prosecute the

domestic battery case against Mr. Bowman (T-I, p. 138). She discussed some of the

documents in the battery case, including a Notice of Appearance filed by

respondent on be half of victim Bonnie DePaolo, on or about December 5, 2011 (B-

Ex. 6; T-I, p. 138-141). Ms. Lesser received a copy of the settlement agreement at

issue and was concerned because it appeared to be an agreement not to prosecute a

case in exchange for money. Ms. Lesser turned it over to her supervisor (T-I, p.

144). Ms. Lessers supervisor referred the agreement to Walter Forgie, the division

supervisor of the Lake County State Attorneys Office (T-I, p. 45). Mr. Forgie

found it to be troubling and forwarded the agreement to his supervisor, the Chief

Assistant State Attorney, who then forwarded the agreement to The Florida Bar (T-

I, p. 45).

Ms. Lesser continued to prosecute the case against Mr. Bowman. Ms.

DePaolo visited the prosecutor's office and indicated that she was under the

8

impression from respondent that the case would be dropped (T-I, p. 145). Ms.

Lesser indicated that she was going to proceed. In her testimony, Ms. Lesser

discussed the progression of the case, including it being set for trial on February 6,

2012 (T-I, p. 150). Ultimately, the State could not proceed to trial because Ms.

DePaolo was not available to testify, as a result of her moving away from Florida

(T-I, p. 150-151). On or about February 3, 2012, the State dismissed the criminal

charges against Jeffrey Bowman (B-Ex. 7).

Case No. SC12-2289

In Florida Supreme Court Case No. SC09-906, by order dated May 12, 2010,

respondent was reinstated to the practice of law and placed on probation for a

period of 3 years. Due to the finding of probable cause for respondents

misconduct, as detailed above, which occurred during the probationary period and

his non-compliance with the Court's Order dated May 12, 2010, The Florida Bar

was obligated to file a Petition for Contempt for non-compliance.

In respondents Initial Brief, he was disingenuous concerning the completion

of his probation. On June 10, 2013, respondent sent the referee a Notice of Filing

Bars Letter Terminating Respondents Probation, with an attached letter dated May

21, 2013. In this letter, the bar incorrectly stated that respondent had completed all

the conditions associated with his probation. In fact, respondent had not completed

9

his probation due to the finding of probable cause. On June 11, 2013, The Florida

Bar sent respondent a corrected letter, stating as follows:

The enclosed letter, concerning your probation in the above

referenced case, sent on May 21, 2013, contained one

inaccuracy. While it is true that our records reflect that you

have paid all costs, the file should not have been closed.

You are aware that the bar has filed a Petition for Contempt

alleging that probable cause was found for conduct that

occurred while you were on probation. By operation of rule

3-5.1(c), this file will remain open until there is a

determination by the Supreme Court concerning the pending

Petition for Contempt.

Thereafter, on June 12, 2012, the bar sent the referee a Notice of Filing, with

the attached letter to respondent dated June 11, 2013. The Florida Bar mailed the

June 11, 2013 letter directly to respondent, a nd then immediately filed it with the

referee in this matter. The bar also sent a copy of its filing to respondent. The bar

informed the referee of its error prior to the referee issuing his report, which

specifically found respondent to be in contempt "for violating his probation" (ROR-

15). In his Initial Brief dated October 16, 2013, respondent completely failed to

address the June 11, 2013 letter, instead implying that he had successfully

completed all the conditions associated with his probation.

10

SUMMARY OF ARGUMENT

The record in this matter contains substantial, competent evidence that

clearly and convincingly supports the referees findings and recommendations of

guilt concerning respondents incompetent representation as it related to Ms.

DePaolo, his attempt to extort funds from Jeffrey Bowman, his conflict of interest

in regard to the settlement agreement, his pattern of engaging in conduct prejudicial

to the administration of justice, and his contempt by violating his disciplinary

probation. The referee was in the best position to review the evidence and assess

the credibility of the witnesses who testified. Therefore, consistent with its prior

holdings, this Court should not reweigh the evidence or substitute its judgment for

that of the referee, but should approve the referees findings of fact and

recommendations of guilt.

Standing alone, this case would not likely warrant disbarment. The referees

recommendation of permanent disbarment is appropriate due to respondents

lengthy disciplinary history involving similar misconduct and the fact that

respondent does not appear to be amenable to rehabilitation.

11

ARGUMENT

ISSUE I

THE REFEREES RECOMMENDATIONS AS TO FACTS AND

FINDINGS OF GUILT ARE WELL SUPPORTED BY THE

COMPETENT, SUBSTANTIAL RECORD EVIDENCE.

Respondents burden on review is to demonstrate that there is no evidence in

the record to support the referees findings or that the record evidence clearly

contradicts the conclusions. The Florida Bar v. Vining, 721 So.2d 1164, 1167 (Fla.

1998). Respondent cannot satisfy his burden of showing that the referees findings

are clearly erroneous "by simply pointing to the contradictory evidence where there

is also competent, substantial evidence in the record that supports the referees

findings." The Florida Bar v. Vining, 761 So.2d 1044, 1048 (Fla. 2000). The

evidence in this matter is substantial, and it includes significant documentary and

testamentary evidence to support the referees findings. The referee in this matter

also presented an extensive and thorough report.

The standard of proof in a bar disciplinary proceeding is clear and convincing

evidence. The Florida Bar v. Niles, 644 So.2d 504, 506 (Fla. 1994), citing The

Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). The bar has met its burden of

proof by clear and convincing evidence. This Court has consistently held that

where a referees findings are supported by competent substantial evidence, it is

12

precluded from reweighing the evidence and substituting its judgment for that of the

referee. Vining, 721 S o.2d at 1167, quoting The Florida Bar v. MacMillan, 600

So.2d 457, 459 (Fla. 1992). The referee was in the best position to assess

credibility and to determine guilt, and his findings and recommendations are clearly

supported by the record. Thus, respondent has failed to meet his burden of

establishing that the record is wholly lacking in evidentiary support for the referees

findings.

The evidence in this matter supports the referees findings that respondent

engaged in incompetent representation as it related to Ms. DePaolo, that he

attempted to extort funds from Jeffrey Bowman, and that he engaged in a conflict of

interest in regard to the settlement agreement. The record evidence further supports

the referees finding that respondent engaged in a pattern of misconduct that was

prejudicial to the administration of justice and that respondent engaged in contempt

by violating his disciplinary probation.

Respondent did not competently represent Ms. DePaolo. Respondent

provided evidence that Ms. DePaolo had been the recipient of a "heinous" and

"vicious" attack by Jeffrey Bowman, who had also previously attacked her in 2007,

and whom she believed threatened her while she was staying at her sister's

residence, following his release from jail. Despite respondents insistence that Ms.

13

DePaolo was in danger, respondent did little, if anything, to protect her (B-Ex. 1).

Specifically, respondent did not help Ms. DePaolo to obtain an injunction, which

carries greater enforceability and consequences for violation than a "no contact"

order from first appearance (B-Ex. 3, 4). Respondent also waived Ms. DePaolos

ability to seek personal injury damages, without knowing what those damages were,

and then encouraged settlement for a sum of money far below the actual costs she

incurred for medical treatment (B-Ex. 1; T-I, p. 266-267, 284).

Respondent also discouraged the criminal prosecution of the alleged

"perpetrator" in this case, which prosecution may have resulted in further

protections and restitution for Ms. DePaolo. Respondent attempted to negotiate a

settlement which was beneficial to Jeffrey Bowman and detrimental to Bonnie

DePaolo, and he attempted to extort funds from Jeffrey Bowman in exchange for a

declination of prosecution (T-I, p. 82, l. 11-12). In addition to the harm this caused

to Ms. DePaolo, respondent ultimately interfered with the State's prosecution of

Jeffrey Bowman by negotiating terms encouraging Ms. DePaolo's non-participation

as a witness in the case (B-Ex. 1; T-I, p. 145).

Respondent was also misleading during the bar's investigation of this matter.

For example, he prepared two affidavits for Ms. DePaolo, which the referee found

were at best self-serving testimony and were not accurate (R-Ex. 6, 7). During the

14

final hearing, Ms. DePaolo could not even read portions of the affidavits, and it was

clear that the contents were not her testimony (T-I, p. 276, 281-283, 288, 291-294).

These affidavits were prepared at critical points in the disciplinary process. In this

proceeding, respondent also gave deposition testimony that was inaccurate and

accusatory toward other parties, including the State Attorneys Office and The

Florida Bar (B-Ex. 9, p. 42, l. 22-23; p. 46, l. 6-8; p. 50, l. 6-12; p. 78, l. 9-12; p.

85-86; p. 89-90). As detailed in his report, the referee also repeatedly admonished

and redirected respondent throughout the disciplinary proceeding (ROR-19-21).

As the referee is in a unique position to assess witness credibility, this Court

will not overturn a referees judgment absent clear and convincing evidence that his

judgment is incorrect. The Florida Bar v. Draughon, 94 So.3d 566, 570 (Fla. 2012).

The bar submits that there is no clear evidence that the referees judgment is

incorrect in this case. The referee was in the best position to review the evidence

and assess the credibility of the witnesses who testified. Therefore, consistent with

its prior holdings, the Court should not reweigh the evidence or substitute its

judgment for that of the referee, but should approve the referees findings of fact

and recommendations of guilt.

In his Initial Brief, respondent also alleged that the referee erred in not giving

more weight to the facts in mitigation. In his report, the referee specifically

15

considered the witnesses who testified to respondents "good character generally,

his involvement in the community, and the substantial pro bono legal services he

provides" (ROR-16). Like other factual findings, findings of mitigation and

aggravation carry a presumption of correctness that will be upheld unless clearly

erroneous or without support in the record. Therefore, a referee's determination that

an aggravating factor or mitigating factor does not apply is due the same deference.

The Florida Bar v. Herman, 8 So.3d 1100, 1106 (Fla. 2009). In this matter, the

referee considered the totality of the evidence and appropriately found more

aggravating factors than mitigating factors.

16

ISSUE II

THE REFEREES RECOMMENDED DISCIPLINE OF

PERMANENT DISBARMENT IS APPROPRIATE GIVEN THE

FACTS, CASE LAW, AND STANDARDS FOR IMPOSING

LAWYER SANCTIONS.

"When reviewing a referees recommended discipline, this Courts scope of

review is broader than that afforded to the referees findings of fact because,

ultimately, it is the Courts responsibility to order an appropriate sanction." The

Florida Bar v. Spear, 887 So.2d 1242, 1246 (Fla. 2004). As a general rule, the

Court will not second-guess a referees recommendation of discipline as long as the

discipline is authorized under the Florida Standards for Imposing Lawyer Sanctions

and has a reasonable basis in existing case law. Id. at 1246. The bar maintains that

the discipline recommended by the referee, permanent disbarment, is supported by

respondents pattern of misconduct, the existing case law, a nd the Florida Standards

for Imposing Lawyer Sanctions.

Respondent was admitted to practice law in Florida on May 31, 1995.

During respondents seventeen years of practicing law in Florida, he has been

involved in four (including the instant proceeding) disciplinary proceedings and one

reinstatement proceeding. On November 13, 1997, r espondent received a public

reprimand and was required to attend and successfully complete a professional

enhancement program for misconduct he engaged in between late 1996 and early

17

1997 (B-Ex. 20) . Then, on June 28, 2001, the Supreme Court approved the

uncontested Report of Referee recommending that respondent be diverted to a

practice and professionalism enhancement program for conduct respondent engaged

in between late 1998 through most of 1999 (B-Ex. 21). Thereafter, on May 17,

2007, the Supreme Court, in The Florida Bar v. Germain, 957 So.2d 613 (Fla.

2007), is sued an opinion suspending respondent for a period of one year (B-Ex. 22).

Respondent sought reinstatement and was granted reinstatement with a condition of

three years probation by Court order issued May 12, 2010 (B-Ex. 23).

The instant case has many similarities to respondents previous disciplinary

cases. It does not appear after three prior disciplinary proceedings, in which he

engaged in similar misconduct to the instant matter, that respondent can be

rehabilitated. Respondent has been given numerous opportunities to address his

misconduct, a nd yet he reverts back to doing the same thing over and over again.

Respondent continues, apparently unabated, to engage in conduct that is prejudicial

to the administration of justice. He continues to do whatever he believes he needs

to do, whether it violates the rules governing attorney conduct, to achieve a goal he

believes is just.

Respondent has previously blamed, a nd continues to blame, oth ers for his

conduct. In his deposition, respondent stated the following regarding the previous

18

proceeding for which he received a one year suspension:

A I believe that I had alleged that Michael C. Norvell

had a gun in his office. Hes a convicted felon. I made a

police report to that effect. Norvell coerced me into signing

an affidavit saying that he didnt have possession of the

firearm. I signed it under duress and the threat of death

from Norvell. He had attacked me --

Q Mr. Germain --

A -- on three separate occasions and had threatened to

kill me --

Q Mr. Germain, I asked you: Do you recall whether or

not one of the allegations that the Court found was whether

or not you were guilty of misrepresentation. Thats my

question.

A I had written a subsequent pleading saying that

Norvell actually did have a gun in his office, which was

proven at trial; however, the referee did find that it was

irrelevant whether the felon had a gun in his office; I had

made contradictory statements (B-Ex. 9, p. 8, l. 13-25; p. 9,

l. 1-4).

Regarding the settlement agreement in the instant proceeding, respondent

stated that "[a]ttorney Bruce Bowman is the one that encouraged me to put some

clause in the agreement to that effect" (B-Ex. 9, p. 42, l. 22- 23). Respondent

continually fails to take responsibility for his misconduct. He repeatedly attempts

to cast the cases involving his misconduct in a light that reflects him as the person

19

doing the right thing, while everyone else is engaged in some type of misconduct to

harm him and/or his client.

Respondents conduct in this regard is not limited to statements made during

an investigatory bar deposition. Respondent has also accused the bar of misconduct

in pleadings and during the final hearing in this matter. For example, in the Motion

to Strike Errata Sheet of Jeffrey Allen Bowman, respondent, without any evidence

thereof, alleged that "[i]t appears Bar Counsel JoAnn Stalcup engaged in witness

tampering. She contacted Jeffrey Allen Bowman and sought an Errata Sheet from

him contradicting his original deposition testimony in order to win her case against

the Respondent." Respondent reiterated this accusation, again without any proof,

and despite the testimony of the witnesses to the contrary, that the bar had engaged

in witness tampering as it related to the content of the errata sheet filed on behalf of

Jeffrey Bowman in the civil suit currently pending in circuit court.

As he did in his prior disciplinary proceedings, respondent continues to

"name call" despite the fact that there has been no finding the individuals are guilty

of any criminal offense. In the instant proceeding, respondent continually

references Jeffrey Bowman as "the perpetrator" of a crime and/or "the perpetrator of

a heinous act," despite the fact that the State did not proceed with its prosecution

and that Mr. Bowman was not found guilty by any court of committing a criminal

20

act against Ms. DePaolo in June/July 2011. As examples, see: (Motion to Suppress,

p. 4); (Reply to Bars Response to Motion to Suppress, p. 6); (Respondents Reply

to The Florida Bars Motion to Strike Respondents Notice of Filing Deposition of

Jeffrey Allen Bowman, p. 13). Likewise, respondent spent a significant period of

time during the final hearing discussing the referring to Jeffrey Bowman as the

"perpetrator" or "the perpetrator of a heinous vicious act of violence against Bonnie

DePaolo."

Respondent has not learned from his previous disciplinary cases that he

should refrain from these types of disparaging comments. Respondent has failed to

rehabilitate his behavior, despite being cautioned numerous times, attending a

professionalism enhancement program on two separate occasions, and being

suspended. Based upon the facts of this case and respondents continued similar

misconduct, the referees recommendation of permanent disbarment is appropriate.

The bar understands that disbarment is an extreme sanction and that it should

only be recommended when the conduct involved is egregious. This Court has

found that disbarment is an extreme form of discipline and is reserved for the most

egregious misconduct. The Florida Bar v. OConnor, 945 So.2d 1113, 1120 (Fla.

2006). Disbarment should be imposed only in those rare cases where rehabilitation

is highly improbable. Id. at 1120 citing The Florida Bar v. Kassier, 711 So.2d 515,

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517 (Fla. 1998). However, the Court determined that where a lawyer demonstrates

an attitude or course of conduct wholly inconsistent with approved professional

standards disbarment may be appropriate. Dodd v. The Florida Bar, 118 So.2d 17,

19 (Fla. 1960). This Court has continued to find that disbarment may be

appropriate where there is a pattern of misconduct and a history of discipline.

OConnor at 1120, c iting The Florida Bar v. Cox, 718 So.2d 788, 794 (Fla. 1998).

Moreover, in The Florida Bar v. Adorno, 60 So.3d 1016, 1018 (Fla. 2011),

this Court made it clear that based on the increasing numbers of attorneys it is the

Courts top priority to ensure that all attorneys strictly follow the boundaries set

forth in The Rules Regulating The Florida Bar. It should also be noted that this

Court "has moved towards stronger sanctions for attorney misconduct in recent

years." The Florida Bar v. Herman, 8 So.3d 1100, 1108 (Fla. 2009), c iting The

Florida Bar v. Rotstein, 825 So.2d 241, 246 (Fla. 2003).

In The Florida Bar v. Klein, 774 So.2d 685 (Fla. 2000), an attorney was

disbarred for failing to provide competent representation, failing to abide by his

clients decisions, failing to explain matters fully to clients, failing to avoid

limitations on professional judgment, asserting frivolous issues, knowingly

permitting a witness to give false testimony, knowingly making false statement of

fact to a tribunal, knowingly disobeying orders of the tribunal, and conduct

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prejudicial to the administration of justice. Like respondent, Klein embarked on a

"personal crusade" and elevated his personal interests above his obligation as an

officer of the court. Id. at 691. In regard to Kleins conduct, this Court stated as

follows:

What is clear from our review of this case is the inherent

danger to the public and the legal system when an attorney

ceases to objectively evaluate legal matters in which he is

personally involved . . . The tools and inherent power vested

in those authorized to practice law in Florida cannot be

perverted for personal whim. Id. at 691.

In The Florida Bar v. Flinn, 575 So.2d 624 (Fla. 1991), this Court disbarred

an attorney after considering the Standards for Imposing Lawyer Sanctions which

specifically stated that disbarment was appropriate when a lawyers course of

conduct demonstrated that the lawyer did not understand the most fundamental

legal doctrines or procedures. In regard to Flinns conduct, this Court stated:

Mr. Flinns strategy, whenever he is facing difficulties,

seems to be, yell conspiracy. He has claimed, in addition to

the workers compensation judges, that The Florida Bar,

and several attorneys are all out to get him. This is based on

nothing. Id. at 639.

Similar to Flinn, respondent repeatedly made baseless accusations against other

parties and demonstrated a lack of competence. In his report in this matter, the

referee noted there was no evidence to support respondents "incredible claims"

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against other parties and that respondent "did not know or understand the Rule of

Sequestration" (ROR-21).

In The Florida Bar v. Poe, 786 So.2d 1164 (Fla. 2001), an attorney was

disbarred for naming himself as a beneficiary and personal representative, given his

extensive prior disciplinary history. Standing alone, the misconduct in Poe, or in

respondents current matter, would not likely result in disbarment. The extensive

pattern of misconduct supports respondents disbarment. In Poe, this Court again

noted that cumulative misconduct of a similar nature warrants an even more severe

discipline than might dissimilar conduct. Id. at 1166.

The referee further recommended respondents permanent disbarment after

finding that "respondent is not capable of rehabilitation" (ROR-16). As previously

discussed, the record clearly demonstrates that respondent is unwilling to change

his behavior. It is especially troubling that this disciplinary proceeding originated

while respondent was on extended probation for similar misconduct.

In The Florida Bar v. Thompson, 994 S o.2d 306 (Fla. 2008) (Unpublished

Disposition), this Court held that an attorney may be permanently disbarred after

the referee determined that the attorney was " not amenable to rehabilitation." Id. at

3. Thompson engaged in an egregious pattern of misconduct that was prejudicial to

the administration of justice. Although respondents conduct is less serious tha n

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Thompsons misconduct, respondent has engaged in a similar pattern of behavior

demonstrating his inability to be corrected or to comply with court rules. As

recently as his Initial Brief, respondent provided misinformation concerning the

alleged completion of his probation to this Court. Furthermore, respondent attached

to his brief a bankruptcy filing for Jeffrey Bowman, da ted August 16, 2013, which

was not a part of the record in this matter. In his Initial Brief, respondent continued

to refer to Jeffrey Bowman as "the perpetrator" (I.B., p. 18). Each of the preceding

examples further supports the referees findings that respondent is not capable of

rehabilitation.

The Florida Standards for Imposing Lawyer Sanctions also assist in

determining the appropriate discipline. These standards, listed in the report of

referee, support disbarment a s the appropriate sanction in this matter (ROR-11-12).

Moreover, Standard 8.1 plainly states that disbarment is appropriate when a lawyer

(a) intentionally violates the terms of a prior disciplinary order and such violation

causes injury to a client, the public, the legal system, or the profession; or (b) has

been suspended for the same or similar misconduct, and intentionally engages in

further similar acts of misconduct. To further support disbarment, the aggravating

factors found by the referee outweighed the degree of mitigation presented by

respondent (ROR-14-15).

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A judgment must be fair to society, fair to the respondent, and severe enough

to deter others who may be tempted to become involved in like violations. Spear,

887 So.2d 1246, citing The Florida Bar v. Lord, 433 So.2d 983, 986 (Fla. 1983).

Respondents serious pattern of misconduct harmed Ms. DePaolo and the entire

legal profession. Thus, the referees recommendation of permanent disbarment is

appropriate based upon respondents extensive disciplinary history and his inability

to be rehabilitated.

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CONCLUSION

Based upon the facts of this case and respondents continued similar

misconduct, it is the bars position that the referees recommendation of permanent

disbarment is warranted. Respondent has repeatedly violated rules that go to the

very heart of our judicial process, a nd he has repeatedly failed to abide by the high

standards expected of attorneys in this State.

WHEREFORE, The Florida Bar submits that this Court should affirm the

referees recommendation of permanent disbarment and payment of costs.

Respectfully submitted,

JOHN F. HARKNESS, JR.,

Executive Director

The Florida Bar



(850) 561-5600


[email protected]

KENNETH LAWRENCE MARVIN

Staff Counsel

The Florida Bar



(850) 561-5600


[email protected]

AND

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mailto:[email protected]:[email protected]

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JOANN MARIE STALCUP Bar Counsel The Florida Bar 1000 Legion Place, Suite 1625 Orlando, Florida 32801-1050 (407) 425-5424 Florida Bar No. 972932 [email protected]

[email protected]

By:

JoAnn Marie Stalcup, Bar Counsel


CERTIFICATE OF SERVICE

I certify that this document has been E-filed with The Honorable Thomas D.

Hall, Clerk of the Supreme Court of Florida, using the E-Filing Portal; a copy has

been furnished by U.S. Mail to, Mark F. Germ ain, R espondent, Law Office of Mark

F. Germain, 2305 Hutchinson Avenue, Leesburg, Florida 34748-5436,

[email protected]; with a copy furnished to Staff Counsel of The Florida

Bar at his designated e-mail address of [email protected], on thi s 31st day of

October, 2013.


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CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN

Undersigned counsel does hereby certify that this Brief is submitted in 14

point proportionately spaced Times New Roman font, and that this brief has been

filed by e-mail in accord with the Courts order of October 1, 2004. Undersigned

counsel does hereby further certify that the electronically filed version of this brief

has been scanned and found to be free of viruses, by Norton AntiVirus for

Windows.


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TABLE OF CONTENTSTABLE OF CITATIONSSYMBOLS AND REFERENCESSTATEMENT OF THE CASESTATEMENT OF THE FACTSSUMMARY OF ARGUMENTARGUMENTISSUE ITHE REFEREES RECOMS AND FINDINGS OF GUD BY THE COMPETENT, IDENCE.

ISSUE IITHE REFEREES RECOMPERMANENT DISBARMENT THE FACTS, CASE LAWMPOSING LAWYER SANCT

CONCLUSIONCERTIFICATE OF SERVICECERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN

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