CHIEF JUSTICE: THE NEXT CASE ON THIS MORNING'S CALENDAR IS THE FLORIDA BAR VERSUS DONAL D ALAN TO BKIN . AND THE PARTIES ARE READY ? YOU MAY PRO CEED.
I THANK THIS HONORABLE SUPREME TRIBUNAL FORGIVE ME GO THE PRIVILEGE OF APPEARING BEFORE YOU TO DAY. IF I WERE TO SPECULATE AS TO WHAT THE ISSUE, THEN I WOULD S AY THAT THE MAIN ISSUE IS SEVERE MISCONDUCT BY THE BARIN THE HANDLING O F THE TOBKIN CA SE.
JUSTICE: LET ME TELL YOU WHAT MY ISSUE S .
SURE , JUSTICE WELLS. I WOULD LIKE TO KNOW.
JUSTICE: MY ISSUE IS THAT I READ THE DISTRICT COURT OF APPEAL'S OPI NION IN THE R OSE VERSUS FEELER CASE , AND IGLEAN FROM THAT AND FROM THE BRIEFS IN THIS CASE, THAT THERE WERE THREE J U DGE S. THERE WERE TWO TRIAL JUDGE S AND THR EE COURT OF A PPEAL JUDGES THAT HAD SUBSTANTIALPROBLEMS WITH YOUR CONDUCTIN THE TRIAL OF THAT CASE ! AND THAT ONE OF THE THINGTHAT IS DISTURBS ME THE MOST IS WHEN YOU WERE ORDER ED NOT TO MAKE AN ARGUMENT IN O PENING ARGUMENT, AND YOU DID IT ANYWAY! THAT THERE WERE SEVERAL INSTANCES IN WHIC H YOU WERE TOLD TO COO PERATE WITH COU NSEL ON THE OTHER SIDE , AND YOU OBVIOUSLY DELIBERATELY DIDN'T DO IT . NOW , TO ME, LAW YERS I N THIS STATE, IF THEY WANT TO CONTINUE TO PRACTICE LAW IN THIS STATE, HAVE GOT TO FOLLOW THE ORDER S THAT ARE MADE DIRECTLY TO THEM I N THE TRIAL COURTS. AND WHEN A LAWYER DOESN'T DO IT , AND ENDS U P HAVING THE CASE DISMISSED BECAUSE OF THE LAWYER'S COND UCT , I FIND THAT TO BE SEVERE MISCONDUCT. THAT IS THE ISSUE I W ANT YOU TO DISCUSS IS WHY YOU CONDUCTED YOURSELF THAT WAY , AND THEN I DON'T SEE IN THEBRIEFS THAT YOU FI LED , THAT YOU ACCEPT THAT YOU YOU DID ANYTHING THAT WAS NOT, THAT A LAWYER SHOULDN'T DO ! EVEN THOUGH FIVE JUDGES HAVEFOUND THAT YOU DID!
CHIEF JUSTICE: ARE YOUGOING TO RESPOND TO JUSTICE WELLS'S QUESTION.
YE S.I WAS WA ITING U N TIL JUSTICE WELLS HAD COMPLETED. THE ANSWER IS , IF THIS COURT FIND THAT THOSE ARE THE FACTS, I DO A C CEPT RESPONSIBILITY, AND I DID SAY THAT ADMONITIO FROM THE TIME OF THE D V. I SAID TO MY CL IENT IMMEDIATELY , MRS. ROSE , I AM NOT INFALLIBLE . IF I HAVE COMMITTED ERRORS , I STAND ACCOUNTABLE TO YOU. THAT IS WHY I C A RRY MI LLIONS OF DOLLARS OF MALPRACTICE INSURANCE. I IMMEDI ATELY RE PORTED TO MY COMPANY AND I WANT YOU MADE WHOLE IF THAT I S THE CASE. IT IS NOT THE FA CTS. THE FACTS ARE , AND I MOST RESPECTFULLY, JUSTICE WELLS , ARE THAT ONLY ONE JUDGE, ONE INTOXICATED JUDGE WHO WAS NOT SOBER DURING THE WHOLE TRIAL.
JUSTICE: THERE A RECORD THAT HE WAS INTOXI CATE ED IN YOUR CASE?
YES, YOUR HONOR, THERE, AND UNFORTUNATE LY I RA ISED IT WHILE IN TRIAL WITH THE SUCCESSOR JUDGE , JUDGE K ENNY.
JUSTICE: HOW ABOUT JUDGE SMITH? ARE YOU TALKING ABOUT JUDGESMITH OR JUDGE KENNY?
NO. THE ONLY ONE THAT HAD APROBLEM WITH ME WAS IN TRIAL.
CHIEF JUSTICE: JUDGE KENNY.
JUDGE KINNEY AT THE E ND. HE IS AN ALCOHOLIC WITH A CHEMICAL SUBSTANCE THAT WAS CONCEALED THAT I DETECTED . NO OTHER JUDGE HAD SANCTIONED ME. AS A MATTER OF FACT, WE AREGOING TO TRIAL A YEAR BEFORE THAT, WHEN THE TWO OTHER JUDGE S , PREDECESSOR JUDGES , JUDGE KENERAC, WHO IS CLOSE FRIENDS AND NEIGHBOR ANDDOCTOR TO ONE OF THE DEFENDANTS , DR . FISHMAN , AND JUDGE SMITH , WHO SUBSEQUENTLY BECAME THE P ATIENT O F DR . SA MMY , THE CODEFENDANT , NEITHER ONE OF THEM HAD A PRO BLEM. THE ONLY SANCTION WAS , ONE , BECAUSE I WAS 300 MILES AWAY FROM Z ERO - - FROM ZERO BEACH, INDIAN -- FROM VERO BEACHINDIAN RIVER COUNTY COURTHOUSE. I COULD NOT GET THERE BECAUSE MY CO-COUNSEL --
CHIEF JUSTICE: FROM WHICHCITYA?
VERO BEACH. CHIEF WHY DID YOU CALL IT ZERO BEACH?
BECAUS E OF THE HOMETOWN E FFECT .
CHIEF JUSTICE: I AM DETECTING IN YOUR RESPONSESHERE, LESS THAN A TOTAL RESPECT FOR THIS COURT AND FOR THE SEV ERITY OF WHAT YOU ARE HERE FOR. YOU STARTED OUT BY SAY ING WE ARE HERE TO TALK ABOUT THE MISCONDUCT OF THE FLORIDA BAR . NOW YOU HAVE MENT IONED THAT, REALLY, IT WAS NOT ONLY THE FLORIDA BAR BUT YOU SAY IT W AS, YOU SAID A DR UNK JUDGE THAT MISS PERCEIVED WHAT WAS GOING ON -- MISPERCEI VED WHAT WAS GOING ON AND NOW YOU ARE BEING CAVALIER ABOUT A CITY IN FLORIDA. I AM NOT SURE I UNDERSTAND WHERE YOU THINK YOU ARE COMING TO THIS COURT AND WHAT YOU IN TEND TO ACCOMPLISH BY THOSE KINDS OF SMUG REMARKS.
MOST RESPECTFULLY , I AM SORRY , JUSTICE PARIENTE, IF THAT IS THE WAY YOU HAVE TAKEN IT. THE , I WAS AS KED TO AS SUME FACTS TO BE TRUE , AND I AM TRYING TO ALLEGORICALLY IN THE SHORT PERIOD OF TIME THAT I HAVE, DR AW OUT THEPOINTS.
JUSTICE: IS IT TRUE THAT YOU HAVE ORDER ED , IS IT T RUE THAT YOU WERE ORDERED NOT TO MAKE A CAPTAIN OF THE SH IP DOCTRINE ARGUMENT AND THAT YOU DID IT ? IS THAT TRUE?
YES.
JUSTICE: THAT IS TRUE?
YES.
JUSTICE: AND SO YOU, ANDTHAT WAS IN DIRECT VIOLATIONOF THE COURT'S ORDER , CORRECT?
YES AND NO.
CHIEF JUSTICE: JUSTICE LEWIS .
COULD YOU EXP LAIN FOR ME. I WAS GOING THROUGHOUT BRIEFS AND TR YING TO ANALYZEHOW THIS CASE WAS PRESENTED TO THE RE FEREE BELOW . WERE THESE, DO WE HAVE WITNESSES? DO WE HAVE A FULL-BLOWN , FULL HEARING WITH REGARD TO ALL OF THIS , OR DO WE JUST RELY ON JUST OPINION FROM THE APPE LLATE COURT? HOW WAS THIS COND UCTED , THIS ENTIRE PROCEEDING ?
THE BAR PROCEEDING WAS --
JUSTICE: THE BAR PROCEEDING.
THE BAR PROCEEDING WAS IWAS , ONE OF MY ADVERSARIES IN THAT CASE HAD REP ORTED ME TO THE BAR. SOMETIME DU RING THE APPELLATE PROCESS. THAT WOULD BE DR . LOU SAMMY AND HIS LAWYER. THE CASE WAS TRUNCATED AT TRIAL JUST WHEN I WAS ABOUT TO EXPOSE IN M Y STRATEGY , THE DOCTOR WHO SAMMY HAD G IVEN FA LS E TESTIMONY A S TO THE WHEREABO UTS WHEN MRS. ROSE , MY CLI ENT, HAD A MORPHINE PUMP OVERDOSING, AND THE DEFENSE DID NOT WANT THAT TO COME OUT. THE ANESTHESIOLOGIST IN THE HOSPITAL SAID THAT THE DOCTOR HUSAMMY WAS WITH HIM IN THE HO SPITAL INSTEAD O F 25 MINUTES AW AY. THAT WAS DEVASTATING TO THE DEFENSE'S CASE. JUDGE KINNEY , THE SUCCESSORJUDGE, WAS OBVIOUSLY L ABORING AND I CALLED MR . SCHLESINGER MY MENTOR TO ASK HIM HIS OP INION ON HO W I SHOULD HANDLE IT AND HE SAID G ET OUT OF YOUR PR IMA FACIE CASE AS FAST AS POSSIBLE , A ND I THINK I AM A GO OD SKILLED OBSERVER AS MEDICAL DOCTOR.
CHIEF JUSTICE: I AM NOT SURE YOU ARE RESP ONDING TO JUSTICE LEWIS 'S QUESTION.
WITH RESPECT TO THE REFEREE'S THIN G, I PROPOUNDED DISCOVERY , ELEVEN INTERROGATORIES. I T OOK AN INTERLOCUTORY D URING THE 188- DAY PERIOD , EXTRAORDINARY WRITS OF THIS COURT , TO TR Y TO G ET MR . T URN FRERT BAR TO AN SWER PER FUNINGT OR I 11 INTERROGATORIES -- PERFUNCTORY 11 INTERROGATORIES, AS TO FACTS AND CONTENTIONS THAT WOULD SUPPORT THE ALLEGATIONS IN THE COMPLAINT, WHO WERE THE WIT NESSES, WAS ANYBODY IMPAIRED OR DURING THAT PERIOD OF T IME WHAT EVIDENCE WILL BE SHO WN. YOU CAN READ IT. THE COURT , THE REF EREE ORDER ED 60 DAYS BEFOREHAND , THAT THOSE 11 INTERROGATORIES , OVER OBJECTION , BLANKET OBJECTION, SHALL BE ANSWERED.
JUSTICE: ACTUALLY IS N'T WHAT THE REFEREE DID IS TO SAY THAT THEY STR UCK YOUR INTERROGATORIES BECAUSE YOU ASKED MORE THAN 30 AND GAVE YOU TIME T O FILE 30 INTERROGATORIES THAT THE BAR W OULD, THEN, ANS WER, AND YOU NEVER FILED THE 30 INTERROGATORIES ?
I DISAGREE , JUSTICE CANTERO, EXACTLY WHAT THE RECORDS SHOW , THOUGH THERE IS SOME T YPOS BY THE REPORTER, IS THAT MR . T URNER , BAR COUNSEL, A GREED , THE 54th DAY, THAT THE 11th INTERROGATORY WAS WHAT IS THE FACTUAL CONT ENTION BA SIS FOR EACH ONE OF YOUR ALLEGATIONS OF THE 35 PARAGRAPHS IN THE BAR COMPLAINT AG AINST ME .
JUSTICE: I UNDERSTAND THAT YOU ARE NOW ARGUING THAT MOST OF THESE THINGS THAT THE BAR HAS FOUND AGAINST YOU , REALLY WAS , IT SEEMS TO BE THAT YOU ARE ARGUING WAS THE FAULT O F SOMEONE ELSE, BUT CA N YOU EXPLAIN TO US WH Y YOU FILED A LAW SUIT THAT WAS ESSENTIALLY THE SAME, IN ANOTHER COUN TY, YOU FILED A LAWSUIT THAT WAS ESSENTIALLY THE SAME AS A LAWS UIT THAT WAS, THAT YOU WERE PRESENTLY S TILL ENG AGED IN. COULD YOU EXPL AIN TO US HOW THAT OCCURRED.
YES. THAT WAS AN APPROPRIATETHING TO DO. IT IS IN THE SAME CIRCUIT. IT WAS , IT WOULD BE BLINDLY SELECTED TO A JUDGE IN THENINETEENTH CIRCUIT, AND IT WAS WITH RESPECT TO AT THAT POINT , BEFORE THE WAL-MART WAS DECI DED BY THE COURT LAST YEAR , LITIGATION WAS A VIABLE , INDEPENDENT CAUSE OF ACTION UNDER ST. MARY 'S VERSUS BRYNE SON, AND DELRAY VER SUS B R OWN, BROWN VERSUS DELRAY. IF YOU HAD AN INDEPENDENT CAUSE OF ACTION WHICH COULD BE CONSOLIDATED , IT IS ONE ACTION, AND THAT WAS FILED BEFORE THE 22-M ONTH DELAY , BEFORE THE MO TION FOR REHEARING WAS DECIDED , DENIED B Y JUDGE KINN EY, AND THAT WAS LAWFUL, AND THAT WAS APPROPRI ATE AT THAT TIME.
JUSTICE: SO IS YOUR POSITION BEFORE THIS COURT IS THAT NO NE OF THE REFEREES ' FINDINGS WERE SUPPORTED BY THE FACTS?
THAT IS TRUE.
CHIEF JUSTICE: IF YOU WOULD LIKE TO SAVE TIME , YOU ARE IN YOUR REBUTTAL.
THANK YOU .
MAY IT PLEASE THE COURT . RONNA YOUNG FOR THE FLORIDABAR.WITH ME THIS MORNING I S JOHN ANNE ANTH ONY BOGGS , STAFF COUNS-- JOHN ANTHONY BOGGS, STAFF COUN SEL FOR THEFLORIDA BAR .
JUSTICE: WOULD YOU START BY EXPLAINING HOW THE BAR PRESENTED THE FACTUAL BASISTO THE REFERE E IN THIS CASE . D ID WE HAVE WITNESSES THAT CAME , AND I HAVEN'T HAD A CHANCE TO LO OK AT THE TRANSCRIPT YE T AND I NEED TO KNOW WHERE WE ARE GOING WITH THIS, DID YOU JUST USE THE OPINION OUT OF THE COURT? DID YOU PRESENT WITNESSES? HOW DID THE BAR PROCEED IN THIS CASE?
THE BAR CALLED TWO LIVE WITNESSES THAT WAS FROM THE OTHER PROCEE DING , WHERE MR . TOB KIN SHOWED UP AT A DEPOSITION, AS SERTED THAT THE DEFENDAN TS HAD NO RIGHT TO PROCEED , Y ELLED , SCREAMED , GRABBED RE CORDS FROM PEOPLE TO THE EXTENT THAT SECURITY WAS CALL ED AT A CANCER CENTER WHERE PATIENTS WERE IN THE LO BBY .
JUSTICE: PRESENTED A WITNESS ON THAT.
WE PRESENTED WITNESSES ON THAT. THE REST OF THE PROCEEDING WAS ALL DOCUMENTARY , AND THEONLY WITNESS WAS MR . TO BKIN , HOWEVER, I WOULD URGE JUDGE , JUSTICE LE WIS , IF THE COURTLOOKS AT NOTHING ELSE , TO L OOK AT BAR EXHIBIT 1 5, WHICH WAS THE ORDER DISMISSING MR . TOBKIN 'S SECOND CASE . IN OTHER WORDS, AFTER THE FIRST CASE WAS DISMISSED BY JUDGE KINNEY, MR . TOBKIN TURNED AROUND , FILED A SECOND PROCEEDING , INCLUDING THE ALLEGATION THAT HE LOST THE FI RST CASE , BECAUSE OF SPOIL AGE OF EVIDENCE B ITE DEFENDANT.THAT WAS ABSOLUTELY FA LSE .
JUSTICE: HE MAKES THE SAME ALLEGATION IN S THE SECOND CASE? AS I UNDE RSTAND -- ALLEGATIONS IN THE SECOND CASE? AS I UNDERSTAND HIS ARGUMENT NOW, THIS WAS REALLY A SEPARATE AND DISTINCT CASE AGAINST THE SAME DEFENDANTS.
THAT IS TRUE. THE SECOND CASE ALLEGED THAT HE LOST THE FIRST CASE BECAUSE OF SPOIL AGE OF EVIDENCE. THE COMPLAINT IN THAT CLAYS CAUSE -- IN THAT CASE WAS INTRODUCED AS BAR EXHIBIT 14. WHEN JUDGE HALLY IN S PANT ST. LUCIE -- IN ST . LU CI E COUNTY DISM ISSED THECOMPLAINT , HE SAID IT WAS SOLE LY BASED UPON FACTUAL ALLEGATION THAT IS ARECLEARLY AND UNDISPUTEBLY FALSE. I WOULD AL SO LIKE TO POINT OUT THAT THERE ARE A NUMBER OF THINGS IN THE BRIEF BEFORE THIS COURT , THAT MR . TOBKIN STAT ED THAT ARE NOT TRUE. FOR EXAMPLE , PAGE 1 OF HIS A MENDED IN ITIAL BRI EF. HE STATED , COUNTS 1-TO-3, HE IS TALKING ABOUT THE BAR'S COMPLAINT AGAINST HI M. FAILS TO STATE A CAUSE OF ACTION. WHERE SAID COMPLAINT ALLEGATIONS AROSE FROM HEARSAY LANGUAGE FROM OBJECTED, TO UNAUTHENTICATED F LORIDA FOURTH DCA OPINIONAND WITHOUT MA NDATE EVER ISSUED IN ROSE VERSUS FI ELD LETTER. HE GOES ON TO SAY WHERE -- FIELDLER. HE GOES ON TO SAY WHERE THIS SUPREME COURT DISAPPROVED ACROSS DECI SION AN EXCULPATED ATTO RNEY TOBKIN OF THE ALLEGED ETHICAL BREACHES. THE ONLY THING THAT CAN BE SAID ABOUT THAT STATEMENT IS NOT TRUE. P AGE 4 OF HIS AM END INITIAL BRIEF , HE REFERS TO THETRIAL JUDGE IN INDIAN RIVER COUNTY AS AN ADVANCED ALCOHOLIC , MIXED CHEMICAL IMPAIRED.
JUSTICE: SO WHA T IS THEPOINT OF THIS? WE ARE HERE ON WHETHER ORNOT , AS I UNDERSTAND IT , THERE IS SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE REFEREE 'SDECISION HERE , WHETHER OR NOT THE DISCIPLINE THAT IS , THAT WAS RECOMMEND ED IS SUPPORTED BY THE CASE LAW STANDARDS , AND SO WHERE ARE YOU GOING WITH THESE IMPROPER OR INCORRECT STATEMENTS THAT WERE MADE IN THE BRIEF?
IF ANYTHING, BECAUSE OF THESE STATEMENTS AND THE POSTURE OF MR . TOBKIN BEFORE THIS COURT , THAT THE DISCIPLINE AMENDED -- RECOMMENDED BY THE REFEREE IS EXTRE MELY , EXTR EMELY LIGHT.
JUSTICE: DID THE BAR AS K, WHAT DID THE BAR SEEK FROM THE REFEREE?
THE BAR SOUGHT A TEN-DAY SUSPENSION AND ATT ENDANCE AT A BAR'S PROFESSIONALISM SEMINAR.
JUSTICE: DID THE BAR RECEIVE FROM THE REFEREE , WHAT WAS REQUESTED BY THEBAR?
ABSOLUTELY. AND AT THE TIME THAT WAS REQUESTED , THESE BRIE FS BY MR. TOBKIN WERE NOT YETWRITTEN. ALSO THIS COURT , IN FEBRUARY , DECIDED THE FLORIDA BAR VERSUS HAGENDORF, WHERE A TWO-YEAR SUSPENSION WAS GIVEN TO AN ATTORNEY WHO FILED FRIVOLOUS LI TIGATION , JUST LIKE FROM TOBKIN DID.
CHIEF JUSTICE: I I AM INTERESTED IN THAT SECOND STATEMENT THERE.IS DISPAR AGING REMARKS IN ABRIEF ABOUT A MEMBER OF THE JUDICIARY IN INDIAN RIVER COUNTY. DOES HE SPECIFY WHO THAT PERSON IS?
YES. I T IS JUDGE KENNY -- KINNEY AND HE SAYS SO. IT IS IN HIS R E PLY BRIEF , PARAGRAPH NUMBER 7.
CHIEF JUSTICE: DID HE INTRODUCE EVIDENCE IN THE CASE ABOUT JUDGE KINNEY 'S ALCOHOL OR D RUG ABUSE PROBLEMS?
THERE HAS NEVER BEEN ANY FINDING THAT ANY PROBLEM OF JUDGE KINNEY CONTRIBUTED TO ANY , ANYTHING THAT WAS FOUNDIN THE ROSE CASE.
JUSTICE: DID WE HAVE APROCEEDING WHERE PEOPLE PUT ON EVIDENCE. THAT IS WHERE I WAS GOING ON WITH THIS. IT IS ONE THING WE ARE JUST LOOKING AT AN OPINION AND THAT IS WHAT IT IS OR DID WE HAVE AN EVIDEN TIARY HEARING ON THIS ON THESE OTHERISSUES?
THERE WAS A PROCEEDING IN FRONT OF THE JQC AT ONE POINT, WHERE JUDGE KINNEY , T HERE WERE CHARGES B UT HE HAD PO TENTIAL --
JUSTICE: IN THIS PROCEEDING, I WOULD THIN K THAT IF I AM RESPONSIBLE FOR BRINGING A COMPLAINT AGAI NST SOMEONE, I WILL GO IN AND I WILL PRESENT M Y CASE, AND IWOULD THINK THAT THAT WOULDBE WITNESSES AND LIVE WITNESSES AND THAT IS WHAT I WAS GOING TO.DID YOU RE LY JUST ON THE OPINION OUT OF THE FOURTH D CA?
AS WELL AS OTHER DOCUMENTARY EVIDENCE. YES.
JUSTICE: SO IT IS ALL DOCUMENTARY AND THIS TRIALDIDN'T GO INT O A TRIAL AS TO GO BE HIND THESE THINGS, THEN , AS TO ANY CONFRONTATION BETWEEN LAWYER AND JUDGE AND THIS IS WHAT PRO DUCED THIS KIND, WE JUST DON'T HAVE A RECORD LIKE THAT.
AND MR . TOBKIN NEVER PRODUCED ANY EVIDENCE THAT ANYONE CA ME IN AND SAID I SAW THE TRIAL JUDGE IN A CHEMICALLY -IMPAIRED STATE HACHLT THAT EVIDENCE DO ESN'T EXIST . -- STATE. THAT EVIDENCE DOESN'T EX IST.
JUSTICE: DID THE BAR , IN ITS PRESENTATION TO THE REFEREE , RELY ON ANY PRECEDENT OUT OF THIS COURT FOR RECOMM ENDING TEN D AYS?
THERE ARE REHABILITATIVE SUSPENSIONS FOR IGNORING O RDERS OF THE COURT . THERE ARE ALL DIFFERENT LEVELS , INCLUDING A PU BLIC REPRIMAND . THERE ARE CASES FOR EXAMPLE , SUCH AS THE FLORIDA BAR VERSUS NUNE Z, WHERE A LAWYER WAS GIVEN THREE YEARS FORFILING A FA LSE LAWS UIT.
JUSTICE: WHAT I AM CONCERNED ABOUT IS WHAT THE BAR, WH Y THE BAR WAS ASKING IF THE BAR I S TAKING THEPOSITION, THAT THIS CONDUCT , THIS LAWYER WAS SIMILAR TO THAT WH ICH REQUIRES REHABILITATIVE SUSPENSION, WHY THE BAR DIDN'T REQUEST THAT THE REFEREE INVOKE THAT TYPE OF SUSP ENSION .
I THINK THERE WERE ANUMBER OF THINGS. FOR EXAMPLE , AT THE TIME THAT THE BAR TRIED THIS CASE, THE POSTURE OF IT WAS THE FOURTH DCA HAD R ULED THAT MR . TOBKIN 'S MISCONDUCT COULD NOT BE VIS ITED UPON HISCLIENT, MRS. ROSE , BECAUSE SHE DIDN'T PARTICIPATE, SO AT THE TIME THIS WAS TRIED , IN FRONT OF THE REFEREE , THE POSTURE WAS SUCH THAT THECLIENT WASN'T GOING TO BE HARMED. I THINK THAT WAS ONE OF THE CONSIDERATIONS. HOWEVER , THE FOURTH DCA CERTIFIED THE QUESTION TO THIS COURT. THIS COURT SAID THAT KIND OF MISCONDUCT CAN BE VISITEDUPON THE C LIENT, AND THE BAR HAS FILED A NOTICE OF SUPPLEMENTAL AUTHORITY, THE FOU RTH DCA HAS NOW AFFIRMED JUDGE KINNEY 'S DISMISSAL OF THE ME DICAL MALPRACTICE ACTION. THAT HAD NOT OCCURRED --
CHIEF JUSTICE: IN ANYCASE, THE SYSTEM IS HARMED B Y A LAWYER THAT ESSENTIALLY , IF THIS IS W HAT THE REFEREE FOUND AND IT IS BORNE OUT BY THE RECORD , A CT S IN FRAGRANT DISREGARD OF A COURT ORDER, IN REFERRING IN OP ENING STATEMENT TO SOMETHING THAT WAS CL EARLY PROHIBITED , WHICH HAS BEEN ADMITTED . FILED A COMPLETELY FRIVOLOUS ACTION, ENGAGES IN UNPROFESSIONAL BEHAVIOR TOWARDS OTHER ME MBERS OF THE PUBLIC, AND G UESS WHAT , I AM HAVING TR OUBLE WITH HERE , IS THAT, AGAIN , WHY , I MEAN TEN DAYS SEEMS LIKE A SLAP ON THE WRIST, IF THIS IS A LAWYER THAT HAS DONE ALL OF THE THINGS THAT THE BAR CLAIMS AND THE REFEREE FOUND THAT THIS LAWYER DID.
I AGREE WITH YOU. AND THIS COURT , IN THE PAST , HAS DISREGARDED THE BAR'S RECOMMENDATION TO THE REFEREE.
CHIEF JUSTICE: WHAT NOW THE RECENT CASE LAW IS , WHAT , DOES THE BAR HA VE A POSITION? IS THAT WHAT THE APPROPRIATE SANCTION IS?
IT CERTAINLY AP PEARS APPROPRIATE THAT A REHABILITATIVE SUSPENSION R ATHER THAN A LI GH T TEN -DAY S LAP ON THE WRIST , WOULD BE APPROPRIATE IN THIS CASE, IN LIGHT OF THE CONTIN UING PATTERN OF MIS CONDUCT REFERRING TO THE TRIAL JUDGE AS AN ALCOHOLIC IN THIS COURT. IN LIGHT OF THE PREJUDICE TO THE CL IENT THAT IS NOW OCCURRED WITH THE FI NAL FOURTH DCA OPINION, AND I N LIGHT HAGENDORF WHICH CAME DOWN IN FEBRUARY WHICH ISSUED A TWO- YEAR SUSPENSION FOR FILING THE SAME KIND OF FRIVOLOUS LITI GATION.
JUSTICE: IS THERE ANYTHING BROUGHT UP AT THE HEARING OR ANY INDI CATION BEFORE THE REFEREE ABOUT ANY PSYCHOLOGICAL OR SUBS TANCE ABUSE PROBLEMS HERE? THIS IS NOT A CASE INVOLVINGANY OF THAT?
ONLY MR . TOBKIN'S ALLEGATIONS AGAI NST THETRIAL JUDGE , NOT ANY INVOLVING MR. TOBKIN , HIMSELF.
CHIEF JUSTICE: OTHER THAN THIS CASE, AND, AGAIN THERE , IS A ALLEGATION O F CONTINUING MISC ONDUCT , THIS LAWYER HAS BEEN A MEMBER OF THE BAR FOR HOW LONG?
I B E LIEVE SINCE 1988. ONE OF THE AGGRAVATING FACTORS WAS SUBSTANTIAL EXPERIENCE IN THE PRACTICE OF LAW.
CHIEF JUSTICE: BUT HE HAS NOT BEEN SANCTIONED BY OTHER JUDGES FOR SIMILAR BEHA VIOR?
THE ONLY SANCTIONS THAT WERE AT IS SUE AND ARE IN THE RECORD ARE FROM WHAT TRANSPIRED IN THE ROSE CASE .
CHIEF JUSTICE: AND THEN SUBSEQUENT TO THE TIME OFTHIS, I S THERE ANY ON GOING COMPLAINTS AGAINST THIS RESPONDENT?
IF THERE ARE , I AM NOT SURE THAT I SHOULD ARG UETHAT, BECAUSE THEY WOULDN'T BE A PART OF THE RECORD .
CHIEF JUSTICE: IT IS NOT A PART OF THE RECORD.
IT IS NOT A PART OF THERECORD IN THIS CASE. PRACTICING LAW IS A PRIVILEGE , AND THE ISSUE FOR THIS COURT IS THE EXTENT TO WHICH THAT PRIVILEGE S H OULD BE WITHDRAWN , TO A LAWYER WHO EXHIBITS THE KIND OF COMPLETE AND U TTER DISDAIN FOR THE AUTHORITY OF THE COURT THAT HAS BEEN EXHIBITED BY MR . TOBKIN , AND IT IS NOT ONLY FOR THE AUTHORITY OF THE COURT. HE EXHI BITS NO RE GARD FOR OPPOSING COUNSEL AND THEIR PARTIES. IN TERM S OF HIS OWN CLIENT , T HERE CANNOT BE MORE SE RIOUS PREJUDICE THAN A LAWYER WHO ENGAGES IN THIS T YPE OF MISCONDUCT AND CAUSE HIS CLIENTS' MEDICAL MALPRACTICE ACTION TO BE DISMISSED. IN 1999, T HIS COURT --
CHIEF JUSTICE: LET M E ASK Y OU A Q UESTION ABOUT THAT OTHER INCIDENT THAT YOU DID PUT WITNES SES ON ABOUT THE SITUATION WITH THE MAMMOGRAM. DID THE WITNESSES THAT TESTIFY , WERE THEY IMPEACHEDAS BEING A PART OF THE SAME , WORKING FOR THE DEFENDANT IN THE MALPRA CTICE CASE , WITH THE HOSP ITAL CORPORATION OF AMERICA? WAS THAT SOMETHING THAT MR . TOBKIN IMPEACHED THE WITNESSES WITH?
THAT THEY WERE SOMEHOWASSOCIATED WITH THE , HIS OPPONENTS AND IN SOME SORT OF CONSPIRACY, NO , I DON'T THINK MR . TOBKIN ESTABLISHED THAT FROM THE RECORD.
CHIEF JUSTICE: WHAT WASON THAT ISSUE ABOUT WHAT HAPPENED? WHAT DID THE REFEREE F IND , AND YOU YOU DID PUT O N WITNESSES TO THAT CONDUCT .
THERE WAS TESTIMONY THAT HE HAD ENGAINED IN YELLING , SCREAMING AT THE CANCER C ENTER -- ENGAGED IN YE LLING , SCREAMING AT THE CANCER CENTER . RESPONDENT CONFRONTED THE HOSPITAL PERSONNEL AND SNATCHED RECORDS, YELLE D AT THEM AT THE HO SPITAL ABOUT THE RE PORTED REFEREE. AT ONE PO INT RESPONDENT GRABBED THE RECORDS FROM OPPOSING COUNSEL IN SUCH A MANNER THAT SHE SO UGHT A RESTRAINING ORDE R. ULTIMATELY THE HOSPITAL PERSONNEL CA LLED SECURITY TO CALM THE SITUATION. ALTHOUGH THE CONDUCT IN THAT CASE KIND OF APPEALS IN COMPARISON TO WHAT HAPPENED IN THE ROSE MA TTER, IT F URTHER INDICATES AN INDIVIDUAL WHO JUST TA KES MATTERS INTO HIS OWN HA ND S , RAMBO STYLE IF YOU YOU WILL , BECAUSE HE DO ESN'T RECOGNIZE THE AUTHORITY OF ANYONE E LSE . REGARDLESS OF WHETHER THE DEPOSITION WAS APPROPRIATELY NOTICED AND SUBPOENAED , ANDTHERE WAS NE VER A FIND ING IN THE BROCK MAN CASE THAT IT WAS NOT. IN OTHER WO RDS HE NEVER HA D A MOTION FOR PROTECTIVE O RDER GRAN TED, A LAWYER CANNOT RESORT TO SELF-HELP AND CAUSE A SCENE AT A CANCER C ENTER , DOING WHAT, WHATEVER IT IS THAT HE WANTSTO DO. THAT IS NOT THE APPR OPRIATE CONDUCT FOR AN OF FICER O F THIS COURT. IN 1999 , THIS CASE, THIS COURT DE CIDED THE FLORIDA BAR VERSUS NUNEZ , AND IN THAT CASE , THE COURT SAID WE ARE ESPECIALLY CONCERNED THAT NU NE Z HAS PAINFULLY IGNORED THE SERIOUSNESS OF HIS MISCONDUCT AND HAS FAILED TO ACCEPT RESPONSIBILITY FOR HIS ACTIONS , WHILE LASHING OUT AT EVER YONE ELSE INVOLVED IN THE PROCEEDING S. THAT WARRANTED A THREE-YEAR SUSPENSION , ALTHOUGH MR. NUNEZ DID HAVE AN EXTENSIVE DISCIPLINARY RECORD WHEREAS MR . TOBKIN KIN DOES NOT -- MR . TOBKIN DOES NOT. HOWEVER , IN HAGENDORF , DECIDED IN FEBRUARY RARY O F THIS YE AR, THIS KIND OF CONDUCT RESULTED IF A TWO-YEAR SUSPEN SION. U NDER THE STANDARD THERE , IS A DIFF ERENCE BETWEEN SUSPENSION AND DISBARMENT. SUSPENSION IS APPROPRIATE , A ND I AM RE ADING FROM 6.22 FROM THE LAWYER STANDARDS , WHEN A LAWYER KNOWINGLY VIOLATES A COURT ORDER OR R ULE AND CAUSE IN JURY OR POTENTIAL INJURY TO A CLIENT OR A PARTY , OR CAUSES INTERFERENCE OR POTENTIAL INTERFERENCE WITH THE LEGALPROCEEDINGS , 6 .21 S A YS DISBARMENT IS APPROPRIATEWHEN A LAWYER KNOWINGLY VIOLATES A COURT ORDER OR RULE , WITH THE INTENT T O OBTAIN A BENEFIT FOR THE LAWYER OR ANOTHER, AND CAUSE SERIOUS INJURY OR POTENTIALLY SERIOUS INJURY TO A PARTY OR CAUSE SERIOUS OR POT ENTIAL SERIOUS INTERFERENCE WITH A LEGAL PROCEEDING. I DON'T KNOW HO W YOU COULDHAVE MORE SERIOUS INTERFERENCE THAN WHAT WEHAVE IN THIS CASE. PRACTICING LAW IS A PRIVILEGE .
CHIEF JUSTICE: SO YOU HAVE USED UP YOUR TIME. IN CONCLUSION , IS IT THE BAR'S POSITION THAT YOU WANT THE COURT TO AFFIRM THE REFEREE IN ALL RESPECTS OR YOU WANT THE COURT TO CONSIDER A MORE SERIOUS SUSPENSION SU CH AS A REHABILITATIVE?
THE COURT SH OULD CONS IDER A MORE SERIOUS SUSPENSION BECAUSE O F RESPONDENT'S ACTIONS AND STATEMENTS IN HIS BRIEF AND HIS POSTURE BEFORE THIS COURT THIS MORNING. THANK YOU.
CHIEF JUSTICE: REBUTTAL.
JUSTICE PARIENTE , I AM RESPONSIBLE FOR THE AC TIONS , IF THAT IS WHAT THIS SUPERIOR TRIBUNAL --
JUSTICE: MR. TOBKIN , I WANT TO KNOW FROM YOU --
YES, SIR .
JUSTICE: -- YOU KNOW , NOT FROM WHAT THIS COURT , I WANT TO KNOW FROM YOU DO YOU BELIEVE THAT YOU ARE RESPONSIBLE FOR SOME OF THE PROBLEMS THAT BRING YOU YOU BEFORE THIS COURT AND IN THIS DISCIPLI NARY PROCEEDING ? S DOU - - DO YOU FEEL LIKE THAT YOU DID ANYTHING WR ONG ?
YES.
JUSTICE: WHAT DO YOU , WHAT DO YOU B E LIEVE THAT YOU DID WRONG , AND WHAT DO YOU THINK SHO ULD BE DONE ABOUT IT ?
IS I BELIEVE THAT , AS MY 8-YEAR- OLD DAUGHTER EXPLAINED TO ME FROM HER GIFTED CL ASS , THERE ARE THREE KINDS OF A N GER. HOLD IT , SHOW IT AND D UMP IT . AND UNFORTUNATE LY TO DAY , THEFIRST TIME THAT I HAVE EVER DUMPED IT. AND THAT IS INAPPROPRIATE. I SHOULD HAVE, INSTEAD OF IN A LAWYERLY WAY SAID TO JUSTICE, TO JUDGE KIN NEY IN TRIAL , YOUR HO NO R , MOST EXACTLY AS A MEDICAL DO CTOR AND A SKILLED OBSE RVER, I THINK THAT YOU ARE IMPAIRED , AND IT WAS NOT UN TI L A FTER THE TRIAL THAT THE FACT CAMEOUT THAT HE WAS , AND THIS COURT KNOWS AND JUSTICEWELLS KNOWS FROM THE DISSENT IN RECENT OPINIONS , IS THAT THERE IS A V AIL OF SECRECY -- A VEIL OF SECRECY ANDTHAT YOU CAN'T , THIS COURTCAN'T DO ANYT HING THE J QC DOESN'T RECOMMEND, AND THEY SEALED HIS RECORD. BUT THE FACTS SHOW THAT JUDGE KINN EY HAD ALCOHOLISM , MIXED CHE MICAL DEPENDENCY , THROUGHOUT THE PENDENCY OF HANDLING THE --
JUSTICE: WE ARE POINTING AT JUDGE KINNEY. SO I WOULD AS SUME IF YOU ARECORRECT, THERE IS A LINE EXTENDING FROM HERE , WHERE HE SER VES, THE LAWYERS WHONOT ONLY IN YOUR CASE BUT DEFENSE COUN SEL IN THIS CASE , PROSECUTORS , STATE ATTORNEYS , AND A WHOLE LIST OF PE OPLE WHO WOULD JOIN YOU IN YOUR CALL THAT YOU HAVE BEEN UNJUSTLY TR EATED BECAUSE OF A DRUNK JUDGE. I DON'T SEE ANY OF THOSE. JUSTICE L EWIS WAS SAYING UH-HUH AN OPPORTUNITY TO APPEAR BEFORE THIS REFEREE -- YOU HAD AN OPPORTUNITY TO APPEAR BE FORE THIS REFEREE , SUBPOENA WITNESSES AND BRING THE LIST OF COURT RE PORTERS , SECURITY OFFICERS AND OTHER LAWYERS WHO WOULD SAY THAT MR. TOBKIN HAS BEEN GROSSLY TREATED BY THIS JUDGE BECAUSE OF HIS ALCOHOLISM , AND THIS IS AN UNFAIR PROCESS OR PROCEEDING BECAUSE OF THAT. AND I DON'T SEE ANYTHING IN MY RECORD OF YOU PRES ENTING ANY OF THAT TESTIMONY BEFORE THE REFEREE . AM I WRONG?
YES, SIR .
JUSTICE: SO WHAT TESTIMONY DID YOU PRESENT TO THE REFEREE FROM THIRD PARTIES, WHO WOULD SUBSTANTIATE WHAT YOU SAY A BOUT THE JUDGE AND HIS ALCOH OLISM AND THE RESULT OF THAT BEING YOU ARE BEING TREATED INAPPROPRIATELY ?
THE PROCEEDING WAS NEW TO ME. THE RULES I READ WAS THE BAR HAS TO PROVE ITS CASE BY CLEAR AND CONVINCING EVIDENCE AND THAT THE RULESOF CIVIL PROCEDURE PREVAIL. I PROPOUNDED 11 PERFUNCTORY INTERROGATORIES AS TO WHOTHE WITNESSES WOULD BE ANDWHAT THE BU RDENS OF PROOFWOULD BE.THERE ARE TWO DISTINCT CHARGES , ONE FOR THE ROSE CASE.
JUSTICE: SO THE BOTTOM LINE IS YOU DIDN'T PRESENT ANY OTHER COURT REP ORTERS, LAWYERS --
I WAS DEPRIVED OF THAT. THAT IS WHY THE REFEREE'SORD ZR UNLAWFUL, U N JUST , OR -- THE REFEREE 'S ORDER IS UNLAWFUL, UNJUST OR NONENFORCEABLE, BECAUSE IF YOU READ THE RECORD I WE NTIN AND S AID I HAVEN'T BEEN TOLD WHAT THE WITNESSES ARE, AND WHE N THEY HAD THE WITNESS , THE WITNESSES THAT THE BAR PUT ON DU RING THE PROSECUTION CASE NEVER SUPPORTED THE BAR'S ALLEGATIONS THAT I WAS VIOLENT OR GRABBED X RAYS FROM ANOTHER LAWYER. THEY DIDN'T BRING ANY D I RECT TESTIMONY. AS A MATTER OF FACT, THE PEOPLE AT THE BR EAST CANCER CENTER SAID THEY GRABBEDTHEM FROM ME. RESPECTING, W ITH RESPECT TO THE CASE IN V ERO BEACH THAT , IS THE ARRAIGNMENT CASE AND OTHER CASES SAY THAT IS HEARSAY AT WHICH TIME IS HEARSAY AND IT IS NOT SUFFICIENT.
CHIEF JUSTICE: YOU MEAN THE RECORD OF THE COURT? YOU ARE SAYING THE RECORDSTHAT WAS FI LED, THE COMPLAINT THAT WAS FILED IN VEER' BEACH IS A HE ARSAY -- IN VARY' BEACH IS A HEARSAY RECORD , NOT A RECORD THAT THIS COURT CAN T AKE JUDICIAL NOTICE OF?
YOU CAN BUT THE CASE HAD ALREADY BEEP QUASHED AND THE CASE, THE MA NDATE HASN'T -- HAS AL READY BEEN QUASHED AND THE MANDATE HASN'T BEEN RES ERVED. WITH THE CASE IN --
CHIEF JUSTICE: ARE OUT OF T IME .
JUSTICE: I THINK YOU WEREGIVEN THE OPPORTUNITY TORESPOND TO ONE OF OURBRETHREN HERE THAT MA YBE YOU DID SOME THING NOT QUITERIGHT IN THIS CASE AND DO YOU INTEND TO DO IT THE SAME WAY AGAIN. I THINK THAT IS WHERE THE QUESTION WAS GOING.
NO. I SAID FROM THE VERY BEGINNING THAT IT HASN'T HAPPENED SI NCE , AND SINCE IT HAPPENED, IT ADVERSELY AFFECTED MY C LIENT , AND I TOLD HER I HAVE M I LLIONS OF DOLLARS OF MALPRACTICE INSURANCE FOR ERRORS THAT I MIGHT MAKE , AND --
JUSTICE: WITH OUT RE GARD TO MONEY AND WITHOUT REGARD TO INSURANCE , DO YOU HAVE ANY REG RETS FOR THE MANNER IN WHICH YOU CONDUCTED YOURSELF WITHIN THE SYSTEM? WITHIN THE SYSTEM? WOULD YOU DO I T THE SAME WAY AGAIN WITHIN THE SY STEM WITHOUT REGARD TO INSURANCE? THAT IS WHAT YOU ARE G IVEN THE OPPORTUNITY TO ADDRESS WITH JUSTICE W E LLS. I THINK HE WANT ED TO HEAR FROM YOU, A RE YOU G OING TO DO IT THE SAME WAY TOMORROW?
NO, SIR. NO, SIR. NO, SIR. WE, AND I BELIEVE THAT THE , THAT WE ARE IN A DIFFERENT ERA , WHERE THE PU BLIC HAS G REATER AC CESS TO THE INFORMATION ABOUT A LAWYER , AND THERE IS NOT A S M UCH A VEIL OF SECR ECY , THAT THAT PRIVILEGE HASN'T YET OCCURRED FOR, WITH RESPECT TO JUDGE S , AND I AM TR YING TO SAY THAT THEY ARE JOINED AT THE HI P.
CHIEF JUSTICE: HERE YOU YOU ARE FOCUSING TOTALLY ON YOUR FEEL INGS ABOUT JUDGE KINNEY AS OPPO SED TO THE VIOLATION OF THE COURT ORDER.
ONE ORDER , JUSTICE PARIENTE, ONLY ONE ORDER. NOT A LITANY OF . THAT IS WHAT THE RECORD SHOWS.AND THAT IS WAS BECAUSE I T WAS IT WAS IN DR . HUSAMMY'SDEPOSITION, I WO ULD HAVE COMMITTED LEGAL MALPRACTICE IN MY OP INION AND GIVEN THEM A FA BRE CHAIR , IF I HA DN'T SAID EXACTLY WHAT DR. HUSAMMY SAID IN HIS DEPOSITION.
CHIEF JUSTICE: YOU WOULDDO THAT AGAIN.
NO.NO. BECAUSE THE RULE HAS BEEN CHANGED. ONCE THE MO TION OF LI MINE IS GRANTED , YOU DON'T , YOU KNOW YOU DON'T HAVE TO HA MMER ON I T. IT USED TO BE DIFFERENT. BY THE WAY , THAT WAS B R OUGHT , JUDGE KINNEY ISSUED THAT RULING INVIOLATE. HE WAS ARBITRARY. I AM SORR Y. I AM SORRY .
CHIEF JUSTICE: WOULD YOU CONCLUDE WITH JUSTICE LE WIS.
I WILL NOT. I HAVE NOT. I HAVE NOT, BECAUSE I CAN SEE THE SE VERE REPERCUSSIONS. I DON'T HAVE ANY TIME LEFT ?
CHIEF JUSTICE: NO.
THANK YOU.