>>ALL RISE. GOD SAVE THESE UNITED STATES, GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. HEAR YE, HEAR YE, HEAR YE, THE SUPREME COURT OF FLORIDA IS NOW IN SESSION, ALL WHO HAVE CAUSE TO PLEAD, DRAW NEAR, GIVE ATTENTION AND YOU SHALL BE HEARD. . GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE SUPREME COURT OF FLORIDA, PLEASE BE SEATED.>>GOOD MORNING AND WELCOME TO THE FLORIDA SUPREME COURT. THE FIRST CASE ON OUR DOCKET IS FLORIDA VERSUS RAKUSIN.>>GOOD MORNING, MAY IT PLEASE THE COURT. I REPRESENT MISTER RAKUSIN WHO IS COCOUNSEL OF THE CASE. MY COLLEAGUE GONZALO’S FOR THE FLORIDA BAR. IS THIS COURT KNOWS THE MISCONDUCT OF THIS CASE BEGINS WITH FILING OF A LAWSUIT OR COMPLAINT IN MAY 2009. ULTIMATELY THAT COMPLAINT WAS FOUND TO HAVE BEEN A SHAM PLEADING AND WAS STRUCK BY A TRIAL COURT RESULTING IN 42, $41,000 MY CLIENT HAD TO PAY OPPOSING COUNSEL.>>AT WHAT POINT IN THE TRIAL COURT LITIGATION DID OPPOSING COUNSEL INDICATE TO THE TRIAL COURT THAT THE PLEADING WAS A SHAM?>>WE WERE TALKING ABOUT THAT THIS MORNING. THE ACTUAL MOTION TO STRIKE FOR SHAM WAS LATER ON IN THE LITIGATION CLOSER IN TIME TO THE ACTUAL COURT ORDER. I DON’T THINK IT IS IN THE RECORDS BUT IT WAS CLOSER IN TIME TO THE COURT’S ORDER WHICH IS 5-20-14. HOWEVER THEY DID FILE RESPONSIVE MEETINGS AT THE TIME THE LAWSUIT BEGAN AND FOR PURPOSES OF THE STATUTE WHEN WE GET TO IT, THE TIMEFRAME BUT IN THIS CASE THE REFEREE ENTERED A SUMMARY JUDGMENT AND HELD A SANCTION HEARING RECOMMENDING DISBARMENT AND THAT IS WHY WE ARE HERE. I HOPE TO ADDRESS A COUPLE ISSUES, THE LIMITATION PERIOD AND AN IMPORTANT QUESTION THAT COMES UP ALL THE TIME IN BAR CASES LATELY IS HOW DO WE VALUE THOSE TRIAL COURT’S ORDERS IN A DISCIPLINARY MATTER AND LASTLY THE ISSUE OF SANCTION. IF I CAN BEGIN WITH A LIMITATION PERIOD WHICH WE KNOW COMES FROM YOUR ROLE, 3.716 A ONE AND THE APPLICABLE PORTION OF IT SAYS THE COMPLAINANT, IN THIS CASE MISTER HERRON AS WE PROCEED ON HIS COMPLAINT IN THIS CASE MUST MAKE A TIMELY MATTER GIVING RISE TO THE INQUIRY FOR THE COMPLAINANT DISCOVERED OVER DUE DILIGENCE SHOULD HAVE BEEN DISCOVERED. THE COMPLAINT IS 12-15-16, 71/2 YEARS FROM THE FILING OF THE LAWSUIT IN MAY 5TH OF 2009. FROM OUR PERSPECTIVE, MISTER HERRON NEW HAD THOSE ISSUES AT THE TIME THE COMPLAINT WAS FILED. THE FACT THAT ULTIMATELY IT STRUCK DOWN THE LINE DOESN’T CHANGE THE NOTICE TO MISTER HERRON SO IT IS OUR BELIEF –>>IF THIS HAD BEEN STARTED NOT BY THE COMPLAINT OF LITIGANTS IN THE UNDERLYING ACTION BUT THE FLORIDA BAR, THE TRIAL COURT FOUND AFTER LITIGATION THAT THIS WAS A SHAM PLEADING AND I’M REFERRING THIS TO BE FRIVOLOUS TO THE FLORIDA BAR. WOULD THAT CREATE, WOULD THAT BE IN THE 6-YEAR LIMITATION PERIOD ASSUMING THAT WAS DONE IN 2014?>>THAT WOULD TRIGGER THE SECOND PART OF THIS RULE WHICH TALKS ABOUT THE LIMITATION PERIOD IS ADDRESSED TO A COMPLAINT INITIATED BY THE BAR.>>ONLY BECAUSE THIS COMPLAINT WAS MADE BY ONE OF THE UNDERLYING LITIGANTS IS OUTSIDE THE 6-YEAR PERIOD.>>THAT IS OUR ARGUMENT.>>THAT SEEMS A LITTLE ODD AND DIFFICULT TO UNDERSTAND THAT THE LIMITATION PERIOD WOULD BE DIFFERENT. TAKE STATUTE OF LIMITATIONS IN ANY OTHER CONTEXT WHETHER IT IS DISCOVERABLE OR NOT DISCOVERABLE AN OBJECTIVE INQUIRY BUT HERE WE ARE SUGGESTING OR YOU ARE SUGGESTING TO US THAT IT INITIATES THE COMPLAINANT OUTSIDE AND WOULD BE WHAT THE COMPLAINANT NEW OR SHOULD HAVE KNOWN VERSUS IF THE BAR INITIATES THE INQUIRY IS WHAT SHOULD OF KNOWN.>>WE DO HAVE TWO DIFFERENT PROVISIONS, ONE FOR A COMPLAINANT, NOT THE BAR AND ONE FOR THE BAR AND WHEN YOU READ THE BRIEFS IN THE RECORD YOU WILL SEE THERE WAS AN INITIAL LOOK BY A DIFFERENT BAR COUNSEL THAT IS NOT PART OF THIS PROCEEDING. IT PREDATED AND WAS CLOSER IN TIME.>>THERE IS A PROVISION IN THE RULES OF PROFESSIONAL CONDUCT THAT PROHIBITS AN ATTORNEY FROM MAKING OR THREATENING A BAR COMPLAINT OR CRIMINAL ACTION TO GAIN ADVANTAGE IN LITIGATION. IF THE ATTORNEY DID NOT WAIT UNTIL JUDICIAL DETERMINATION, WITH YOUR CLIENT HAVE REPORTED HIM — THERE IS SOME SENSE IF YOUR INITIAL ASSESSMENT, THIS IS COMPLETELY FRIVOLOUS. UNTIL THE JUDGE RULES ON IT, IT IS ODD THAT THERE IS A RULE THAT IF YOU MAKE YOUR INITIAL ASSESSMENT, THE CLOCK STARTS TICKING. WOULD YOU ADDRESS THAT?>>GREAT QUESTION AND THERE IS NO GOOD TIME WHEN YOU’RE IN LITIGATION TO FILE A COMPLAINT OR GRIEVANCE WITH THE BAR. THE RULE, 483, I COULD BE WRONG ON THE NUMBER DOESN’T SET A TIMELINE ON OUR OBLIGATION TO REPORT, JUST THAT WE MUST REPORT SOMETHING. IF THE LIMITATION WILL SAYS IT IS DISCOVERED ITS DUE DILIGENCE, THE TRIGGERING RATE SHOULD BE WHEN I KNOW.>>WE ARE ALL OF US IN THE BAR, AND AN ARGUABLE POINT. IT IS ASSUMED BY OATH AND LAWS OF PROFESSIONAL CONDUCT. HOW IS IT A LITIGANT ON THE OTHER SIDE IF THEY BELIEVE SOMETHING IS WRONG OR A SHAM, TO OVERCOME THAT ASSUMPTION WITHOUT HAVING TO LITIGATE THAT COURT. HOW WAS THAT TRIGGERED IN THE FILING WHEN WE PRESUME PEOPLE FILE THINGS.>>I HEAR YOUR POINT.>>I’M NOT MAKING A POINT.>>UNDERSTAND WHERE YOU ARE GOING BUT I AGREE WITH YOU THAT IT IS DIFFICULT TO MAKE THAT BALANCE. A LAWYER IS MAKING THIS GRIEVANCE, TO KNOW ALL THE RULES AND INVITATIONS.>>I’M SURE YOU SAID THAT IS WRONG AND IT HAPPENS TO ALL LAWYERS BUT WHEN WE LITIGATE THESE THINGS. AND ABSENT ANY FACTORS?>>I PRACTICE AGAINST THE BAR.>>JUSTICE, AGAIN, ALL I AM TRYING TO SAY, THEY HAVE SIX YEARS, IN THIS CASE, THE PARTIES DIDN’T LITIGATE. IT IS STILL CLOSER IN TIME, WAS WELL PAST, THEY FILED THE GRIEVANCE, THE SANCTION ORDER WAS 2 YEARS BEFORE THAT.>>IN 2014 WHEN THE TRIAL COURT MADE THE FINDING AND ENTERED THE ORDER SAYING IT WAS A SHAM IS THAT WHEN COMPLAINANTS SHOULD HAVE FILED THE BAR COMPLAINT?>>WE THINK THEY SHOULD HAVE FILED WITHIN SIX YEARS FROM THE DATE THEY FILED THE INITIAL LAWSUIT WHICH IS MAY 5, 2009. THAT IS OUR ARGUMENT BUT IT IS HEIGHTENED AWARENESS. IN 14 IF YOU FILED –>>THAT IS WHEN THE TRIAL COURT ENTERS THE ORDER. THAT GOES TO JUSTICE LAWSON’S QUESTION WHICH IS WHEN SHOULD AN ATTORNEY FILE A COMPLAINT WITH THE BAR WHEN WE HAVE A RULE THAT SAYS YOU CANNOT GAIN ADVANTAGE ON THE OTHER SIDE BY BRINGING CRIMINAL PROCEEDINGS OR ANY KIND OF PROCEEDING AGAINST THE OTHER SIDE?>>I UNDERSTAND THE ISSUE BUT THE RULE SAYS WE HAVE 6 YEARS TO DO IT AND I AS A LAWYER KNOWING THAT 6-YEAR PERIOD SHOULD HAVE DONE SOONER.>>NOTHING PROHIBITS AN ATTORNEY FROM FILING A 57-105 IN FEDERAL COURT OR RULE 11.>>IT IS COMMON GROUND BETWEEN THE PARTIES THAT JUDICIAL DETERMINATION THAT FILING WAS DONE IN BAD FAITH. THAT’S NOT A NECESSARY PART OF PROVING THE BAR VIOLATION. YOU DON’T HAVE TO WAIT UNTIL THE COURT IS IN BAD FAITH.>>YOU DON’T HAVE TO WAIT. WHEN YOU LOOK BACK AT THE CASES BEFORE WE HAD A LIMITATIONS PERIOD, IT WAS A REASON, THIS IS 71/2 YEARS AFTER THE COMPLAINT WAS FILED AFTER THE COURT ORDER. WE RESPECT FULLY BELIEVE IT IS OUTSIDE THE STATUTE OF LIMITATIONS.>>FROM READING THE JUDGE’S ORDER IT SEEMED THE DETERMINATION THAT IT WAS A SHAM PLEADING WAS ESSENTIALLY JUST A MATTER OF COMPARING THE ORDER RESOLVING THE EARLIER CASE AND COMPARING THE TWO DOCUMENTS, THE SUBSEQUENT COMPLAINT AND COURT ORDER AND SAYING THE TWO THINGS ARE INCONSISTENT.>>IN THE RECORD IS A TRANSCRIPT OF THE HEARING THAT LEADS ME TO THE NEXT AREA AND IT IS A JANUARY, OUR EXHIBIT TEN AND WHAT YOU WILL SEE IN THAT, MY CLIENT WAS ENTITLED TO AN EVIDENTIARY HEARING, THERE IS NO TESTIMONY IN THAT HEARING. THE FOCUS WAS COMPARING MY CLIENT FILE AND JUDGE CROWE’S UNDERLYING ORDER BEING DISCUSSED. THE SECOND AREA I WANTED TO GET INTO WAS WHAT VALUE WE GIVE TRIAL COURT ORDERS OR APPELLATE COURT DECISIONS.>>IF — LET’S FAST-FORWARD AND SAY SUMMARY JUDGMENT HADN’T BEEN GRANTED AND THIS WAS A TRIAL ON THE MERITS, NOT JUST SANCTIONS. AT THE TRIAL THE BAR PUT INTO EVIDENCE THE UNDERLYING ORDERS, YOUR CLIENT TESTIFIED HE ACTED IN GOOD FAITH AND THE TRIAL COURT FOUND IN ITS FINDINGS AND RECOMMENDATIONS TO US THERE HAD BEEN THE SAME VIOLATION WE HAVE BEFORE US TODAY. YOU AGREE THERE WOULD BE COMPETENT SUBSTANTIAL EVIDENCE IN THAT CONTEXT BASED ON THE UNDERLYING ORDERS, CORRECT?>>IF WE HAD NOT HAD SUMMARY JUDGMENT AND HAD A LITIGATED TRIAL IN THE BAR CASE, THE REFEREE HEARD THE EVIDENCE.>>THE ONLY DIFFERENCE IS THIS WAS DONE BY AFFIDAVIT AS OPPOSED TO TESTIMONY.>>CORRECT.>>HOW ARE WE NOT IN THE SAME BOAT? TRIAL COURT HAD THE SAME THING IT HAD AT A HEARING, THE SAME ORDERS AND WOULD HAVE YOUR CLIENT STATEMENTS THAT IT WAS DONE IN GOOD FAITH WHICH THE TRIAL COURT REJECTED AND FOUND BY CLEAR AND CONVINCING EVIDENCE THIS SHOULD BE A SHAM PLEADING. I’M HAVING TROUBLE UNDERSTANDING HOW PROCEDURALLY WE WOULD BE IN A DIFFERENT SPOT IF THIS WERE TRIAL AS OPPOSED TO SUMMARY JUDGMENT.>>IF THERE WAS A TRIAL IN THE MERITS OF THIS CASE, MORE THAN JUST MY CLIENT TO TESTIFY. ONE OF THE ISSUES IN THIS CASE.>>THAT WASN’T PRESENT AT SUMMARY JUDGMENT. DID YOU LIST ANY WITNESSES THAT WOULD HAVE TESTIFIED OTHER THAN YOUR CLIENT?>>I WAS IN COUNSEL AT THE TIME. THERE IS A LONGER LIST BUT I DON’T KNOW WHO IS ON IT. THAT COULD HAVE OCCURRED. WE COULD HAVE PRESENTED DIFFERENT TESTIMONY. UNDER THE CASE LAW THAT EXISTS PRIOR COURT ORDERS AND UNDERLYING CASES HAVE CERTAINLY GIVEN IT APPROPRIATE WEIGHT BUT ONE OF THE DISCUSSIONS WE NEED TO HAVE DIFFERENT STANDARDS OF PROOF. A BAR CASE IS CLEAR AND CONVINCING. IN A TRIAL COURT LEVEL THE PREPONDERANCE IS DIFFERENT WHICH MEANS WHEN YOU LOOK AT THE CASE LAW, THE ONLY CASE EITHER PARTY CITED THAT IS A SUMMARY JUDGMENT IN THE BAR CASE IS ROSENBERG AND ROSENBERG, ALL THE INFORMATION WAS ADMITTED EXCEPT MISTER ROSENBERG NEVER FILED AN OPPOSING AFFIDAVIT. HE NEVER MADE THE ISSUE HE NEEDED TO MAKE AND KEPT LITIGATING WHICH WAS ANOTHER PROBLEM ALTOGETHER BUT HERE WE WERE CUT OFF. MY CLIENT NEVER HAVE AN EVIDENTIARY HEARING IN THE UNDERLYING TRIAL PROCEEDING. HE WENT TO HEARING AND NEVER HAD AN OPPORTUNITY TO BE HEARD SHORT OF HIS AFFIDAVIT WHEN HE LOST SUMMARY JUDGMENT. THAT IS PART OF OUR POINT. AS MY TIME IS RUNNING OUT I WANT TO TOUCH SANCTION FOR A BRIEF MOMENT AND BE BACK FOR A SHORT REBUTTAL PERIOD. THE REFEREE IS RECOMMENDING DISBARMENT. THAT IS THE MOST SERIOUS SANCTION THAT CAN BE IMPOSED AND THIS COURT NEEDS TO LOOK AT THE UNDERLYING CONDUCT, A FRIVOLOUS PLEADING, A SHAM. THERE ARE MISREPRESENTATION ARGUMENTS AND WHEN YOU LOOK AT CASE LAW, EVEN WITH THIS COURT’S PHILOSOPHY OF BEING STRONGER TODAY THOSE 91 DAY CASES ARE MORE RECENT.>>YOU HAVE USED ALMOST ALL YOUR TIME.>>I WAS WATCHING THAT WITH YELLOW.>>I WILL GIVE YOU TWO MINUTES FOR REBUTTAL.>>THANK YOU VERY MUCH.>>MAY IT PLEASE THE COURT. MY NAME IS LINDA GONZALEZ, I REPRESENT THE BAR. I WOULD LIKE TO DISCUSS THE STATUTE OF LIMITATIONS. IF YOU ACCEPT THE POSITION THE STATUTE OF LIMITATIONS BEGAN TO RUN IN 2009 IT WOULD LOGICALLY FOLLOW THE STATUTE OF LIMITATIONS WOULD RUN IN MAY 2015. JUDGE BUSH GOALS ORDER WAS NOT AFFIRMED.>>IS YOUR POSITION THAT A TRIAL COURT’S ORDER MUST BE AFFIRMED BEFORE SOMEONE CAN FILE A GRIEVANCE WITH A BAR?>>THE WAY THE GAR — THE BAR PROCEEDS, PEOPLE SAY THERE’S A FRIVOLOUS FILING THEY WANT US TO INTERCEDE INTO THEIR CASE. THE BAR DOESN’T DO THAT THEY ALLOW THE COURT TO RESOLVE THOSE ISSUES OR THE BAR WILL BE A LITIGANT FOR THE COMPLAINANTS.>>HAS THE COURT ISSUED A TOLLING ORDER ON THE STATUTE OF LIMITATIONS? I AM CONFUSED.>>CAN YOU RESTATE YOUR QUESTION?>>HAS THE COURT ISSUED A TOLLING ORDER ON THE STATUTE OF LIMITATIONS?>>THE COURT HAS NOT.>>IN 2014 WHEN THE TRIAL COURT ENTERED AN ORDER AT THAT MOMENT IN TIME, THE LAW OF THE CASE WAS IT WAS A SHAM PLEADING. SHOULD THE OTHER SIDE NOT HAVE BEEN NOTIFIED THE STATUTE OF LIMITATIONS DID NOT START TO RUN AT THAT POINT?>>THE BAR’S PETITION IS THE STATUTE OF LIMITATIONS RAN OUT BECAUSE THAT IS WHEN THEY SHOULD HAVE KNOWN. BEFORE THAT ALL YOU HAVE IS A PLEADING AND THE ATTACHED FINAL JUDGMENT. WE HAVE A CASE WHEN OPPOSING COUNSEL FOR FIVE YEARS, THEY DID NOTHING IN THE CASE. THAT ALMOST THE ENTIRE PERIOD OF THE STATUTE OF LIMITATIONS.>>YOU WAITED TWO MORE YEARS, CORRECT?>>THE BAR DID NOT HAVE A CASE OPEN AT THAT POINT IN TIME. THE BAR DID OPEN AND I WANT TO DISCLOSE IT WAS NOT PART OF THE RECORD BUT THE BAR DID OPEN A CASE IN JULY 2016, THE FLORIDA BAR WAS THE COMPLAINANT. THAT WAS IN THE BRIEF, HE DID MENTION THAT. THAT CASE WAS FLORIDA BAR AS A COMPLAINANT. THEY DIDN’T FILE THE COMPLAINT UNTIL DECEMBER 2016. I BELIEVE THEY KNEW THE BAR HAD SOMETHING OPEN.>>ISN’T THE STANDARD WHETHER THE COMPLAINANT, THIS IS A SITUATION THE COMPLAINANT FILED, WHETHER THE COMPLAINANT NEW OR SHOULD HAVE KNOWN ABOUT THE VIOLATION?>>THAT IS CORRECT.>>AS I UNDERSTAND THE TESTIMONY, THE COMPLAINANT KNEW HE DID NOT PARTICIPATE, KNEW ABOUT THE UNDERLYING LITIGATION BECAUSE HE WAS PARTY TO AND DID NOT PARTICIPATE IN THE UNDERLYING CONSPIRACY WITH MISTER STEWARD BECAUSE HE DIDN’T MAKE ANY PRESS STATEMENT AND KNEW HE WAS NOT INVOLVED WITH ANYTHING MISTER STEWART WAS DOING. WOULD HE HAVE KNOWN THAT AT THE TIME THE LAWSUIT WAS FILED OR SHOULD HAVE KNOWN?>>HE MIGHT HAVE KNOWN.>>IS THAT PROBLEMATIC?>>WHEN THE BAR RECEIVES COMPLAINTS OF FRIVOLOUS LITIGATION ARE MISREPRESENTATION THE BAR DOESN’T START THE CASE NOW. THEY PLACE THE FILE.>>THE QUESTION IS NOT WHAT THE BAR DID BUT THE COMPLAINANT, WHAT THE COMPLAINANT DID.>>I WILL READ THE RULE, THE RULE MISTER TITAN READ, A COMPLAINANT MUST MAKE A WRITTEN INQUIRY WITHIN 6 YEARS FROM THE TIME THE MATTER GIVING RISE TO THE INQUIRY WHERE COMPLETE IS DISCOVERED OR DO DILIGENCE SHOULD HAVE BEEN DISCOVERED SO I UNDERSTAND THE BAR MIGHT NOT WANT TO GET INVOLVED AND THAT MIGHT BE A GOOD REASON FOR DOING SO. I CAN’T DISPUTE THAT I UNDERSTAND THAT BUT THE RULE SAYS WHAT IT SAYS.>>MY UNDERSTANDING IS THE COMPLAINANTS DID KNOW THE BAR HAD SOMETHING OPEN ALREADY SO –>>IS THAT IN THE RECORD?>>THAT IS NOT IN THE RECORD.>>IT IS ONLY DECEMBER 2016 COMPLAINT.>>THAT IS CORRECT. WHAT IS IN THE RECORD IS HE DID STATE IN HIS BRIEF, RAKUSIN STATED THE BAR HAD SOMETHING OPEN BECAUSE WHEN HE CAME BACK FROM HIS SUSPENSION HE RECEIVED A LETTER FROM THE FLORIDA BAR REGARDING THIS MATTER IN JULY 2016.>>IT WOULD STILL BE MORE THAN SIX YEARS.>>CORRECT. THE BAR’S POSITION IS ALSO THAT MISTER RAKUSIN FILE THIS PLEADING AND MAINTAIN FOR FIVE YEARS. THAT IS MISCONDUCT FOR FIVE YEARS. HE MAY HAVE FILED IT IN 2009 BUT HE CONTINUED HIS MISCONDUCT OF KEEPING THE LITIGATION GOING FOR FIVE YEARS.>>IT IS A CONTINUING VIOLATION HE DID NOT WITHDRAW THE COMPLAINT AT ANY POINT. IS THAT THE STANDARD, AN INTERESTING POINT BUT IS IT THE STANDARD UNDER 3-7.681 WHICH SAYS THE COMPLAINANT MUST MAKE IT FROM 6 YEARS FROM THE TIME GIVING RISE TO THE INQUIRY OR COMPLAINT.>>THAT’S NOT THE STANDARD BUT WHAT I SUBMIT TO THE COURSE.>>THAT IS WHAT IT SAYS IN THE RULE.>>THE BAR’S POSITION IS WHAT GAVE RISE TO THIS COMPLAINT IS THE 2014 ORDER. THAT IS WHEN THE BAR NEW.>>THE QUESTION IS WHEN DID THE COMPLAINANT KNOW THAT THE PLEADING WAS A SHAM? MY UNDERSTANDING IS HE KNEW THE COMPLAINT WAS FILED.>>MY TROUBLE THAT I AM HAVING IS THERE DOES NOT NEED TO BE ANY TRIAL COURT FINDING OR ORDER ISSUED BEFORE SOMEONE CAN MAKE A COMPLAINT WITH THE FLORIDA BAR. IF I KNOW FOR A FACT THE COMPLAINT ALLEGES ABC, 100% CATEGORICALLY INCORRECT AND FALSE. I CAN FILE A COMPLAINT WITH THE BAR AT THAT TIME. I DON’T HAVE TO WAIT FOR THE TRIAL COURT OR APPELLATE COURT TO MAKE AN EFFECT.>>>>WHAT IF THIS BAR MEMBER HAD SOME TIME AFTER FILING THE INITIAL COMPLAINT.>>AT A REVELATION MOMENT THIS IS NOT SUPPORTED BY FACTS OF THE LAW AND VOLUNTARILY DISMISS THE CASE.>>RAKUSIN WOULD HAVE DISMISSED THE CASE.>>THAT HAPPENS IN PRACTICE ALL THE TIME. WOULD THERE HAVE BEEN A LEGITIMATE BAR DISCIPLINARY CASE AGAINST THAT LAWYER?>>IT IS MY OPINION THE DON’T THINK THIS CASE WOULD BE FOR YOU TODAY BUT IT IS DIFFICULT TO SAY IF A BAR COMPLAINT WOULD BE FILED. HAD A BAR COMPLAINT BEEN FILED WE WOULD HAVE LOOKED INTO IT AND WE WOULD HAVE BROUGHT IT TO THE GRIEVANCE COMMITTEE AND IT WOULD BE A GRIEVANCE COMMITTEE DECISION AT THAT TIME WHETHER HE VIOLATED THE RULE OF FILING OF FRIVOLOUS COMPLAINT BUT IT WOULD BE MITIGATED THAT HE REALIZED IT IS A FRIVOLOUS COMPLAINT. AND THIS PRETTY MUCH MIRRORED THE FINAL JUDGMENTS. THERE’S A LOT HAPPENING.>>AS A PRACTICING LAWYER WHEN A LAWYER ON THE OTHER SIDE FILED SOMETHING THAT IS BASELESS. IT SEEMS AT TIMES APPROPRIATE TO LET SOME THINGS HAPPENED DURING THE COURSE OF THE CASE BEFORE YOU FILE A COMPLAINT AGAINST THEM AND IN SOME WAY WHAT TRANSPIRES AND HAVE THE LAWYER AND OPPORTUNITY TO CORRECT SOMETHING BEFORE YOU FILE DISCIPLINARY ACTION AGAINST SOMEONE. IT SEEMS VERY QUICK TO EXPECT A LAWYER WHEN A COMPLAINT IS FILED TO RUN OFF AND FILE A BAR COMPLAINT BEFORE ANY DISCOVERY HAS BEEN HAD OR THINGS DEVELOP IN THE CASE.>>IN THIS CASE MISTER STEWART SENT US A HARVARD LETTER FOUR MONTHS PRIOR TO THE CASE BEING STRICKEN. AND THAT WAS OFF WITH TIME. AND IT WAS SANCTION. HERE AS I UNDERSTAND IT. AND — AND AN AFFIDAVIT WAS MADE SAYING NO. I MADE HIS ALLEGATIONS IN GOOD FAITH. THE TRIAL COURT BASED ON THAT CONFLICT GRANTED SUMMARY JUDGMENT TO THE BAR. HOW CAN THE BAR GRANT ON AN ISSUE OF BAD FAITH WHEN THERE IS CONFLICTING EVIDENCE?>>TWO THINGS, THERE WAS THE COMPLAINT, THE FRIVOLOUS COMPLAINT AND FINAL JUDGMENT WAS BEFORE THE COURT SO THOSE WERE TWO ADDITIONAL THINGS THEY COULD HAVE LOOKED AT THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT. SECONDLY THE FLORIDA BAR BEAT ROSENBERG, A MIRROR IMAGE OF THIS CASE.>>THERE IS NOTHING IN THAT CASE THAT SUGGESTS THERE IS NO AFFIDAVIT. I DID NOT READ THAT IN THE CASE.>>NOTHING IN THE CASE SAID THERE WAS NO AFFIDAVIT.>>NO AFFIDAVIT WAS MENTIONED IN THE CASE.>>THE OPINION, THE FACTS ARE ESSENTIALLY UNDISPUTED. YOU DIDN’T SAY THAT ABOUT THIS CASE?>>I WOULD SAY ACCORDING TO THE FLORIDA BAR VERSUS ROSENBERG HE TRIED TO PUT GOOD FAITH AT ISSUE.>>HOW CAN YOU MAKE CLEAR IF HE SAYS THERE IS GOOD FAITH AND YOU SAY THERE IS NOT GOOD FAITH THERE IS AN ISSUE OF FACT.>>NOT ACCORDING TO THE ROSENBERG CASE.>>THERE WAS NO AFFIDAVIT THAT SUGGESTED THERE WAS GOOD FAITH IN DISPUTE. THE FACTS WERE UNDISPUTED.>>IN THIS CASE MISTER RAKUSIN ADMITTED SO THE COURT CONSIDERS HIS ANSWER AND HE ADMITTED TO ALL THE MATERIAL FACTS IN THE BAR’S CASE. THERE WAS A PLEA THE COURT CONSIDERED.>>HE ADMITTED THESE THINGS HAPPEN AND THE TRIAL COURT ISSUED ITS ORDER. THE ORDER SAID THIS. HE HAS TO ADMIT THOSE THINGS, THEY ARE FACTS BUT THAT DOESN’T GET TO THE UNDERLYING ISSUE OF WAS THERE GOOD FAITH OR WAS THERE ARE NOT GOOD FAITH. SUMMARY JUDGMENT ONLY, NOT A TRIAL, IF IT WERE A TRIAL IT WOULD BE A DIFFERENT QUESTION. SUMMARY JUDGMENT IF YOU HAVE AFFIDAVIT ON ONE SIDE SAYING I ACTED IN GOOD FAITH AND TRIAL COURT ORDERS WHICH INDICATE LACK OF GOOD FAITH, ISN’T THERE BY DEFINITION A CONTESTING OF FACTS REGARDING GOOD FAITH?>>THE UNDERLYING ACTION UNDER 57105, THEY SHOULD HAVE KNOWN THERE WAS NO MATERIAL.>>THERE IS EVIDENCE TO SUPPORT YOUR POSITION. THE QUESTION IS WASN’T THERE EVIDENCE ON THE OTHER SIDE OF THE SCALE AND IF THERE WAS EVEN SOME EVIDENCE ON THE OTHER SIDE OF THE SCALE DOESN’T THAT CREATE SOMETHING FOR WHICH THERE NEEDS TO BE A TRIAL.>>THE BAR’S POSITION IS THERE IS SO MUCH EVIDENCE TO THE CONTRARY THE JUST BECAUSE YOU MAKE A STATEMENT I HAVE GOOD FAITH DOESN’T MEAN THAT IS A MATERIAL ISSUE.>>WHAT WAS THE FACTUAL FILING OF THE COMPLAINT WHEN OBJECTIVELY THERE WAS NO FACTUAL OR LEGAL BASIS TO DO SO?>>IF THAT IS THE COURT’S QUESTION, HE RELIED ON MS. WATSON’S REPRESENTATIONS, WHEN HE FILED THE LAWSUIT IN 2009 HE ACTED IN GOOD FAITH. WOULD NOT GIVE HIM THE GOOD FAITH HE ASSERTS AND YOU CAN’T SIMPLY RELY ON CLIENT REPRESENTATIONS AS STATED EARLIER, YOU HAVE A DUTY TO APPRISE YOURSELF OF THE FACT THAT HE HAD FACTS IN FRONT OF HIM AND EVERYTHING ELSE THAT WAS HAPPENING, LAURA WATSON BEING PERMANENTLY DISBARRED.>>YOU ARE SAYING WHATEVER HIS CLIENT MIGHT HAVE TOLD HIM THAT WOULD NOT BE A DEFENSE TO FILING A FRIVOLOUS PLEADING TO SEE WHAT SHE WAS SAYING WAS NOT TRUE, IT WAS IMMATERIAL.>>THAT IS CORRECT. THAT COULD BE GLEANED FROM EVIDENCE IN FRONT, THE COURT COULD MAKE A DECISION IS NO MATERIAL ISSUE OF FACT. JUST BECAUSE HE SAYS I ACTED IN GOOD FAITH YOU NEED REASONABLE BASIS TO SAY I ACTED IN GOOD FAITH. I DON’T BELIEVE THE BAR’S POSITION IS JUST BECAUSE YOUR CLIENT SAYS I WON THIS CASE YOU HAVE A FINAL ORDER IN FRONT OF YOU. YOU HAVE THE FINAL JUDGMENT, ALL THAT MISCONDUCT AND EVERYTHING THAT HAPPENED IN THOSE FIVE YEARS, THE CHARGING DOCUMENTS THAT MIRRORED THE FINAL JUDGMENT SAYING SHE BREACHED FIDUCIARY DUTIES.>>YOU SAID THERE WAS A APPEAL TO THE THIRD DCA CHALLENGING THE JUDGE’S 2014 ORDER. THE RESPONDENT NEVER MADE AN APPEARANCE. IT WAS A DIFFERENT ATTORNEY WHO FILED THAT APPEAL BUT HE WAS SANCTIONED IN THAT CASE, COULD HAVE MADE AN APPEARANCE IN DEFENDED HIMSELF AND CHOSE NOT TO. WHEN JUDGE BUTCHCO. RESPONDED TO EXHIBIT 10, HE DIDN’T FOLLOW MOTION OF OPPOSITION, HE DIDN’T ATTACH ANYTHING AS EVIDENCE THAT THE OTHER PARTY DID. THEY ATTACHED EVIDENCE TO THEIR PLEADINGS SO CHOSE TO DO CERTAIN THINGS AND NOT DO CERTAIN THINGS AND HE IS CLAIMING HE DIDN’T HAVE EVIDENTIARY HEARING AND CLEARLY IT WASN’T EVIDENTIARY HEARING.>>LET ME ASK YOU A QUICK QUESTION THAT JUSTICE PAULSON ASKED ABOUT, AN IMPORTANT ISSUE ABOUT CASES THAT MIGHT NOT BE CLEAR AT THE BEGINNING OF A CASE THAT SOMETHING WAS FILED NOT IN GOOD FAITH. HERE, MY SENSE IS THIS WHOLE THING TURNS ON COMPARISON OF THE 2008 ORDER TO THE 2009 COMPLAINT. DO YOU HAVE ANYTHING THAT WOULD SUGGEST WHAT HAPPENED BEFORE SOMEONE COULD NOW THIS WAS A SHAM PLEADING IN GOOD FAITH?>>I DO NOT EXCEPT FOR THE FACT THE WAY THE BAR PROCEEDS, A CASE LIKE THIS THAT WAS HELD FOR FIVE YEARS AND ALMOST THE ENTIRE STATUTE OF LIMITATIONS. IT WAS CLEAR IT WAS A PRIVILEGE FEEDING. I DON’T THINK THE BAR WOULD HAVE PROCEEDED BASED ON STANDARD BOARD POLICY 15.55 SAYING IF THERE WAS LITIGATION GOING ON WE WILL MONITOR THE SITUATION UNTIL THE CONCLUSION OF THE CASE.>>IF WE ARE WORRIED ABOUT SETTING PRECEDENT FOR OTHER CASES. THIS IS A CASE AND THE COMPLAINT, WE ARE NOT SUGGESTING — WE DON’T HAVE TO CREATE A PRECEDENT TO RUN AND FOLLOW BAR COMPLAINT, THE FIRST SECOND IT IS FILED IN A CASE WHERE IT IS NOT CLEAR WHETHER IT IS A SHAM OR IF THERE WAS A GOOD FAITH BASIS. YOU CAN LET THINGS HAPPEN IN THIS CASE. THERE WAS REALLY NOTHING ELSE OF SIGNIFICANCE THAT HAPPENED AFTER WHETHER IT WAS FOILED IN GOOD FAITH OR NOT IS SOMETHING WE WOULD KNOW AS OF THE TIME OF THE FILING OF THE COMPLAINT.>>ANY REASONABLE PERSON COULD HAVE DETERMINED I WOULD AGREE WITH IT WAS A FRIVOLOUS PLEADING BUT ON THE BAR SIDE WE WOULD NOT HAVE PROCEEDED BECAUSE WE DON’T WANT TO INFLUENCE THE COURT OR BECOME COMPLAINANT, LITIGANTS FOR THE COMPLAINANTS AND WE HAVE TO MAKE THAT DECISION AT THE BAR AND PLACE THOSE FILES.>>DOES THAT MEAN THERE IS A THEY FACTO, EVEN IF IT IS NOT EXPRESS A PART OF THE RULE DO YOU BASICALLY TAKE IT AS IF IN THE ABSENCE OF A COURT FINDING THAT THE BAR WOULDN’T PURSUE SOMETHING LIKE THAT?>>WE WOULD WAIT UNTIL JUDGE BUTCHOH RULES, THEY WANTED TO SEE WHAT WOULD HAPPEN IN THE APPEALS AND THAT APPEAL FOR THE FINAL JUDGMENT CAME OUT IN 2012.>>HOW DOES THAT SORT OF WHEN YOU READ THE AND IT SAYS THE COMPLAINANT MUST MAKE A WRITTEN INQUIRY TO THE FLORIDA BAR IN 6 YEARS AT THE TIME OF THE MEDICAL RISE TO THE INCREASE OR COMPLAINT IS DISCOVERED. AT THAT MOMENT IN TIME LET’S SAY WHEN THE TRIAL COURT MAKES THE WRITTEN FINDING IT GOES TO THE APPELLATE PROCESS, AT WHAT POINT IN TIME DO YOU MAKE SURE THE RULE IS FOLLOWED, THE 6-YEAR RULE?>>OF THE PARTIES CAN AGREE TO SAY WE ARE GOING TO TOLL THE LITIGATION YOU STILL HAVE STATUTE OF LIMITATIONS RUNNING.>>WHEN WE GET THE INQUIRY THE BAR’S POSITION AT THAT TIME STARTED TO TAKE IN 2014. AND THAT IS MAYBE WHEN THE BAR WOULD HAVE RECEIVED SOMETHING.>>UNDER THE RULE IT SAYS THE FLORIDA BAR MUST OPEN AN INVESTIGATION WITHIN 6 YEARS FROM THE TIME OF THE MATTER GIVING RISE TO THE INVESTIGATION IS DISCOVERABLE WITH DO DILIGENCE SHOULD HAVE BEEN DISCOVERED.>>THE BAR’S POSITION WAS THAT WAS 2014 WHEN IT SHOULD HAVE BEEN DISCOVERED. WE CAN GUESS AND SAY THIS FRIVOLOUS BUT UNTIL THE COURT RULES, THIS IS ABSOLUTELY DONE IN BAD FAITH, THE BAR WOULD NOT HAVE PROCEEDED.>>YOUR POSITION IN THIS ARGUMENT HAS BEEN THAT IT WAS CLEARLY FRIVOLOUS, YOU DIDN’T NEED — THE TRIAL COURT DIDN’T NEED TO MAKE FINDING THAT WAS SO OBVIOUS AND OPEN THAT WAS FRAUDULENT THAT THERE WAS NO NEED FOR TRIAL COURT TO MAKE A FINDING SO WHICH ONE IS IT?>>IT IS OBVIOUS TO ME AND A REASONABLE PERSON IT WOULD BE OBVIOUS IT WAS A FRIVOLOUS FILING BUT I’M STUCK BETWEEN THE FACT THAT IF WE LOOKED AT IT BACK IN 2009 WHEN NOTHING WAS HAPPENING WE WOULD NOT HAVE DONE ANYTHING WITH REGARD TO THAT. WE WOULD NOT HAVE DEFINITIVELY KNOWN WHETHER THIS WAS A FRIVOLOUS LAWSUIT UNTIL JUDGE BUTCHOH RULED THEY HAD AN EVIDENTIARY AIR REHEARING, EVIDENCE WAS PRESENTED. WE ARE NOT GOING TO STEP INTO THE SHOES.>>IF YOU ARE SAYING YOU WOULDN’T HAVE DONE, THE FLORIDA BAR WOULDN’T HAVE DONE ANYTHING UNTIL THE TRIAL COURT ATE A FINDING WHY SHOULD THE OTHER SIDE OF SAID I WILL WITHDRAW MY PLEADING AS A SHAM? BECAUSE THE TRIAL COURT HAD TO MAKE A FINDING BECAUSE IT WAS NOT OBVIOUS.>>MY POSITION IS IT WAS OBVIOUS AND HE SHOULD HAVE NEVER –>>WHY DID YOU HAVE TO WAIT UNTIL TRIAL COURT MADE A FINDING?>>FOR THE BAR IS NOT GOING TO BE A LITIGANT, WE ARE NOT GOING TO INFLUENCE THE COURT. WHEN THERE IS LITIGATION IN A CASE AND THERE’S A BAR COMPLAINT THE POSITION OF THE RESPONDENT IS THEY ARE TRYING TO INFLUENCE THE COURT OR ME SETTLING OR SOMETHING SO WE MONITOR THAT CASE UNTIL THE CONCLUSION AND THE CONCLUSION IN THIS CASE WOULD HAVE BEEN NOVEMBER 2015 WHEN THEY RUBBERSTAMPED THAT ORDER. JUDGE BUTCHA’S ORDER WOULD HAVE PLACED US ON NOTICE THIS IS FRIVOLOUS.>>YOU HAVE MORE THAN EXHAUSTED YOUR TIME.>>IF I COULD SAY ONE THING, THE AGGRAVATING CIRCUMSTANCES ARE OUTRAGEOUS. THERE IS MISREPRESENTATION.>>YOU ARE WAY OVER TIME HERE. COUNSEL. SINCE OPPOSING COUNSEL GOT 51/2 MINUTES EXTRA YOU WILL GET 51/2 MINUTES EXTRA.>>I WILL BE BRIEF, THE COURT UNDERSTANDS THEIR TROUBLE WITH THIS. ONE ARGUMENT RAISED THAT I WANT TO ADDRESS BEFORE I FORGET IS THE ISSUE OF GOOD FAITH.>>BEFORE YOU ADDRESS THAT ADDRESS THE CONTINUING ARGUMENT MADE –>>HOW IS IT A VIOLATION EVERY SINGLE DAY THAT YOUR CLIENT IS LITIGATING, ASSUMING IT IS, A FRIVOLOUS PLEA DEAL?>>WE HAVEN’T DISCUSSED THAT IN THE BRIEFS. IT IS A NEW ARGUMENT FOR BAR BY CONTINUING BUT IF YOU HEARD THE FACT OF THIS MATTER IS BECAUSE THERE WERE OTHER THINGS GOING ON THE CASE WAS STAYED. THEY WEREN’T DOING ANYTHING IN A 5-YEAR PERIOD.>>MANY TIMES THIS HAPPENS IN GOOD FAITH. AND ATTORNEY FILES SOMETHING AND LEARNED IT IS NOT AS IT WAS.>>WHY WE HAVE 57105.>>THERE WAS NO EFFORT TO WITHDRAW. EVERY DAY THE COMPLAINT WAS THERE, BEING AFFIRMATIVELY LITIGATED IN SOME COURT IN THE STATE OF FLORIDA. ASSUMING IT WAS FRIVOLOUS, HOW WAS IT NOT AN INDEPENDENT VIOLATION OF THE BAR RULE THAT THOU SHALT NOT LITIGATE THE FRIVOLOUS PLEADING?>>BACK TO THE RULE.>>GIVING RISE TO WHAT WAS DISCOVERED AND WE GO BACK TO IT WAS DISCOVERED ON DAY ONE.>>THAT WAS TRUE AS TODAY ONE BUT YOU DIDN’T DISCOVERED ON DAY 2 WHEN IT WAS LITIGATED AND ON DAY 4, STATUTE OF LIMITATIONS FOR CONTINUING VIOLATIONS GO ON AND ON EVEN THOUGH DAY ONE COULD HAVE BEEN DISCOVERED OUTSIDE THE LIMITATIONS PERIOD. MY QUESTION IS HOW IS EVERY DAY NOT A UNIT OF PROSECUTION, HOW WAS THAT NOT EVERY SINGLE DAY YOUR CLIENT WAS LITIGATING A FRIVOLOUS PLEA?>>I UNDERSTAND THE QUESTION. IT IS HARD TO ADDRESS. BUT LOOKING AT IT, THE CASE SAT AND YOU WOULD HAVE TO LOOK AT THE CASE WAS REAWAKENED TO BE PURSUED AND THERE WAS A SANCTION MOTION, TRYING TO GET ATTORNEYS FEES, HE HAS GOT TO DEFEND HIMSELF, NOT NECESSARILY DISMISS IT THEY THOUGHT IT WAS A GOOD FAITH ARGUMENT. WE NEVER GOT FAR ON WHAT THOSE ISSUES ARE, BUT THE THOUGHT I WANT TO LEAVE YOU ON IS FOR GOOD FAITH. WE TEST AT THE TIME THE ACTION BEGAN. WHAT HAPPENED LATER AT THE TIME THE ACTUAL LAWSUIT WAS INITIATED, ALL YOU HAD WAS A LAWYER TALKING TO A CLIENT, RELYING UPON A CLIENT BASED ON THE FACTS THAT THEY KNEW COLLECTIVELY AT THAT TIME AND COLLECTIVELY AT THAT TIME THEY KNEW THAT THEIR WAS NO PERSONAL LIABILITY TO WATSON COMING OUT OF THAT LITIGATION, SPLITTING HAIRS IN THE WRONG DIRECTION IS WHAT THEY DO AND THE COURT ORDER SHOWS THAT. THAT IS WHAT THEY HUNG THEIR HAT ON FOR PRIME PART OF THE LITIGATION.>>DID THE COMPLAINANT CHARACTERIZE THE VIOLATION IS NOT JUST THE FILING, AND THAT IS WHAT IT WAS.>>I DON’T REMEMBER WHAT THE COMPLAINT SAYS. ALL OF THE WATSON MATERIAL, THAT HAPPENED LATER IN LIFE, AT THE TIME THE LAWSUIT WAS FILED. TWO LAST LITTLE THOUGHTS I WANT TO DISCUSS, WHETHER OR NOT THE SUMMARY JUDGMENT BY THE REFEREE ALSO DISPOSED OF THE DITZY TENSES AND OTHER — THE DEFENSES THAT NEED TO BE ADDRESSED. FINALLY SEEING 20 SECONDS TO GO, APPRECIATE THE TIME. IT IS A DISCIPLINARY MATTER. AT THE END OF THE DAY WHEN YOU LOOK AT EVEN IF WE LOSE EVERYTHING ELSE, WHEN YOU LOOK AT THE SANCTION THIS IS NOT A DISBARMENT CASE BASED ON THE EVIDENCE.>>THANK YOU FOR YOUR ARGUMENTS.