Hello everyone and welcome to this Ethics Alert which will discuss the recent recommendation by a referee that The Florida Bar pay $143,913.35 in costs incurred by an accused Broward County lawyer in defending a Bar discipline proceeding and denying the Bar’s request for $305,360.03 in costs. The disciplinary matter is: The Florida Bar v. Jeremy Alters, Case No. SC14-100 (Fla. SC).
The referee, who is a Miami-Dade circuit judge, issued a recommendation on The Florida Bar’s Amended Motion to Tax Costs dated September 26, 2017. That recommendation was filed with the Florida Supreme Court on October 5, 2017 and is here: https://efactssc-public.flcourts.org/casedocuments/2014/100/2014-100_order_222937.pdf. The referee’s recommendation on The Florida Bar’s amended motion to tax costs is also dated September 26, 2017 and was filed with the Florida Supreme Court on October 5, 2017 and is here: https://efactssc-public.flcourts.org/casedocuments/2014/100/2014-100_order_222936.pdf.
The Florida Bar filed a Petition for Emergency Suspension in 2011 and the lawyer was suspended on an emergency basis by Supreme Court Order December 28, 2011. The referee recommended that the suspension be lifted in her report dated January 20, 2012 and the Supreme Court lifted the suspension by Order dated January 25, 2012.
The Florida Bar then filed a complaint against Alters in January 2014, along with a companion complaint against Kimberly Boldt, who was also a managing partner at the law firm of Alters Boldt Brown Rash & Culmo. The Bar complaint alleged that the two lawyers made improper trust account transfers of over more than $2 million between September 2009 and October 2010 from client trust accounts to law firm operating accounts. The Bar dropped the charges against Boldt and sought disbarment for Alters throughout the proceedings.
The referee issued a report of referee on November 14, 2016 recommending that Alters be found guilty of only two of the six alleged violations and not guilty of intentional trust account violations or misappropriation. The two violations to which the lawyer had previously admitted were lack of supervision and failure to take corrective action, but not willful misconduct. The Report of Referee is here: https://efactssc-public.flcourts.org/casedocuments/2014/100/2014-100_miscdoc_333910.pdf
In her September 22, 2017 recommendation on the lawyer’s motion to tax costs and fees, the referee criticized The Florida Bar for ignoring evidence in pursuing Alter, who she stated was the wrong attorney, and recommended that The Florida Bar pay Alters’ defense costs in the amount of $143,913.35 in defending the Bar proceedings.
The referee also recommended denial of the Bar’s request for $305,360.03 in costs, stating that it was excessive considering the less serious rule violations that the referee found that the lawyer violated. “They (the costs) are all associated with the violations the bar was unable to prove.” The referee also stated that: “There is nothing in the rules that requires a taxation of costs against a respondent where the costs were directly associated with failed claims and not necessary in connection with the rules violations that were found to have occurred.”
According to the referee’s recommendation, Boldt was not credible and there was a clear difference between how the Bar treated Alters and Boldt. The Bar “ignored evidence that was front and center and refused to believe or even interview credible witnesses.” In addition, the Bar “was supplied with evidence that Boldt authorized the improper transfers but did nothing with it.” The referee also stated that the Bar relied heavily on text messages provided by Alters’ former brother-in-law, even though they were shown to have been changed; however, notwithstanding this, the Bar dropped charges against Boldt and continued to pursue disbarment against Alters:
“In fact, dating back to January 2012, the Bar had documentary evidence (draft) letter and transmittal emails from Boldt) and testimony by Bruce Rogow and Respondent that Ms. Boldt was not being candid and that it was she, Ms. Boldt, not Respondent, who authorized the improper transfers in January and February 2010. The Bar also had evidence she was in charge of the day to day operations of the firm from around August or September 2009 until she left sometime in June or July, 2010. Why the Bar chose to side with her and ignore the evidence remains a mystery, but it must pay the cost of that bad choice because there were no justiciable issues of law or fact; simply, there was no evidence that Respondent authorized or that he knew about the improper trust account transfers when they occurred.”
The referee also recommended that, regardless of her findings of guilt on two admitted Bar rule violations, the Florida Supreme Court should not impose any discipline on Alters.
Bottom line: This is an unusual case, to say the least. It is very rare for a referee to recommend that the Bar pay an accused lawyer’s costs and deny the Bar’s costs and even rarer for the Florida Supreme Court to uphold such a recommendation. We will see what happens. Stay tuned…
…and be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
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