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The Florida Bar v. Guillermo Pena
SC04-2367
CLERK PLEASE RISE.
PLEASE RISE.
> LADIES AND GENTLEMEN,
THE FLORIDA SUPREME COURT.
PLEASE BE SEATED.
GOOD MORNING.
THIS CASE ON THE DOCK IS THE
FLORIDA BAR VERSUS PENA.
GOOD MORNING.
ON BEHALF OF GULL LIR MOW
PENA.
THIS CASE IS ABOUT AN
ATTORNEY GUILLERMO PENA WHO
WAS LICENSED IN 1991
PRACTICE LAW.
HE IS HE TODAY?
NO HE IS NOT.
WE DON'T REQUIRE THE
ATTORNEY TO COME UP?
NO.
AS FAR AS I AM AWARE, NO,
NOT THAT I WAS AWARE OF?
SHOULD THAT BE A
REQUIREMENT IN THESE KIN OF
PROCEEDINGS THE ATTORNEY
SHOULD BE HERE?
YOU KNOW, THAT MIGHT BE A
GOOD IDEA TO MAKE THAT A
REQUIREMENT; HOWEVER, SINCE
WE ARE NOT IN A POSITION TO
TAKE TESTIMONY AND THE
ATTORNEY HIMSELF WOULD BE
THE ONE THAT WOULD BE
TESTIFYING, THE TESTIFYING
PORTION AND THE EVIDENCE
PORTION HAS BEEN CLOSED LONG
AGO AS A PRACTICAL MATTER HE
WANTED TO PARTICIPATE IN HIS
OWN CASE.
IF HE NEEDED TO HEAR WHAT
WAS SAID.
PLEASE GO AHEAD WITH YOUR
ARGUMENT.
WE DON'T WANT TO TAKE YOUR
TIME UP WITH THAT.
ALRIGHTY.
HE WAS BOARD CERTIFIED
CRIMINAL ATTORNEY WHO
PRACTICED LAW FOR 12 YEARS
IN MIAMI FLORIDA.
HE HAD AN OFFICE.
HE HAD SUCCESSFUL PRACTICE.
HE WASN'T.
YES, LET'S GO INTO.
ESIGNED LETTERS GUILLERMO
PENA ESQUIRE.
MORE THAN ONE LETTER.
HE SENT A BILL FOR
PERFORMING LEGAL SERVICES
SUCH AS TELEPHONE CONFERENCE
OF CLIENT, DRAFTING
NON-COMPETE AGREEMENT,
DRAFTING ARTICLES OF
AMENDMENT, HE RECEIVED
PAYMENT FOR LEGAL FEES.
HE REPRESENTED HIMSELF AS IN
HOUSE COUNSEL.
HE WAS AN ATTORNEY FOR
MOTION BANK.
HE IS LISTED IN EMPLOYEE
DIRECTORY AS PENA AND THE
COMPANY'S ATTORNEY.
GOING PIECE BY PIECE.
THE INVOICE THAT YOU
REFERRED TO WHERE IT SAYS
LEGAL REPRESENTATION.
HE WAS WORKING FOR A COMPANY
CALLED CALL CENTER EXPRESS.
HIS BOSS WAS EDGAR GONZALEZ.
EDGAR.
IS HE AN ATTORNEY?
I AM SORRY.
IS HE AN ATTORNEY?
NO, NOT AT ALL.
EDGAR GONZALEZ ASKED HIM TO
MAKE AN INVOICE GIVEN THE
HOURS THAT HE WORKED.
HE GAVE HIM AN INVOICE.
THE FACT IT SAYS LEGAL
SERVICES ON IT.
IT WAS ON OLD LETTERHEAD.
AND IF YOU NOTICE THE
INVOICE.
HOW MUCH WAS HE CHARGING
PER HOUR?
IT WAS NOT -- LARGE
AMOUNT OF MONEY.
$125 AN HOUR OR SOMETHING
ALONG THOSE LINES.
LEGAL CHARGE?
YOUR HONOR, IN THESE DAY
AN AGE, I DO PARALEGALS DO
BILL BETWEEN $60 AND $150 AN
HOUR.
$150 FOR A LARGE LAW FIRM?
YES.
YES.
I MISSED THAT A LITTLE
BIT AS FAR AS YOU SAID THE
BOSS TOLD HIM TO ACCEPTED
OUT A BILL FOR LEGAL
SERVICES?
NO.
HIS BOSS -- HE WORK FORCE A
COMPANY CALLED CENTER
EXPRESS.
I UNDERSTAND THAT.
GIVE ME A BILL FOR YOUR
HOUR FORCE THIS WEEK.
HE PULLS IT OUT ON HIS OWN
LETTERHEAD, WRITES OUT A
BILL, GIVES IT TO HIM.
FOR WHATEVER REASON, THE
BOSS WANTED SOMETHING ON THE
BILL AT THAT TIME.
WE DON'T KNOW WHY.
THE PROBLEM IS HE KNEW HE
WAS SUSPENDED.
HE KNEW HE WAS NOT SUPPOSED
TO USE LETTERHEAD INDICATING
THAT HE WAS AN ATTORNEY.
THERE ARE OTHER KINDS OF
PIECES OF PAPER THAT HE
WOULD HAVE WHERE IT AND BILL
ON.
WHY WOULD HE USE PAPER HE
KNEW THAT HE SHOULD NOT USE
BECAUSE HE WAS A SUSPENDED
ATTORNEY?
AND THE PERSON HE IS
HANDING THAT PAPER TO KNEW
FULL WELL THAT HE WAS NOT AN
ATTORNEY.
WHAT DIFFERENCE DOES THAT
MAKE?
IT MAKE AS BIG DIFFERENCE
IN THAT IT IS NOT A
LETTERHEAD HE IS SENDING OUT
TO THE PUBLIC, WHERE THE
PUBLIC IS SAYING, OH, HANG
ON, HE IS AN ATTORNEY AT ALL
IT IS SOMEBODY HE WORKS FOR.
THE PERSON HE WORKS FOR
KNOWS HE IS SUSPENDED.
SHOULD THAT PERSON HAVE
TOLD HIM NO GIVE ME
SOMETHING ON SOME OTHER KIN
OF PAPER?
WE DON'T KNOW WHAT THE
PERSON WANTED IT FOR.
WELL, LET ME ASK YOU A
QUESTION.
YES.
EXHIBIT 7 TO THE PETITION
SHOWS A LETTERHEAD FROM THE
JANUARY TIME FRAME AND THEN
EXHIBIT 5 SHOWS ANOTHER
LETTERHEAD THAT IS A
DIFFERENT TYPE AND FONT AND
THE ONE WE ARE TALKING ABOUT
WHICH IS THE LATEST ONE IN
APRIL IS COMPLETELY
DIFFERENT.
FROM THE LETTERHEADS, THIS
RE DIFFERENT SO WAS THIS
DISCUSSED --
ONE THAT YOU WERE -- EEX
IN ABOUT IT 2.
EXHIBIT 2.
THANK YOU.
EXHIBIT 5 AND EXHIBIT 7.
IF YOU LOOK AT THEM, THEY
ARE ALL DIFFERENT
LETTERHEADS.
CORRECT.
SO IF HE IS -- I MEAN THE
ARGUMENT WAS, I WILL USE AN
OLD LETTERHEAD.
YES.
DID HE HAVE DIFFERENT
TYPE OF LETTERHEADS OVER
THIS 3-MONTH PERIOD.
I WOULD IMAGINE HE HAD
NUMEROUS TYPES OF LETTERHEAD
OVER HIS CAREER, HIS 12-YEAR
CAREER AS AN ATTORNEY.
DIDN'T HE SIGN THE LETTER
FEBRUARY 6th, 2004, SIGNED
IT AS GUILLERMO PENA
ESQUIRE?
IF HE LOOK AT SIG NUR THE
SIGNATURE SAYS GULL LER
GUILLERMO PENA.
THE E REFEREE SOUND THAT
IT WAS SIGNED GUILLERMO PENA
ESQUIRE.
THE TYPEWRITTEN PRINT
UNDER NAME SAYS GUILLERMO E
PENA ESQUIRE.
WELL, NOW, WAS THAT TYPED
BEFORE HE WAS SUSPENDED FROM
THE PRACTICE OF LAW?
YOUR HONOR, OFTEN WE DO
CUT AND PAST IN THE LEGAL
PROFESSION OR ANY PROFESSION
WHERE YOU HAVE A BILL, YOU
KNOCK THE MIDDLE OF THE BILL
OUT.
EVERYTHING STAYS THE SAME.
YOU TYPE IN.
IT IS INTERESTING.
THESE WERE ALL SORT OF A
SERIES OF ERRORS IS WHAT YOU
ARE SAYING.
YOU SAID, WELL, WE DIDN'T
NEED YOUR CLIENT HERE
BECAUSE WE DON'T JUDGE
CREDIBILITY.
THE REFEREE JUDGED
CREDIBILITY, HE DIDN'T FIND
ANY OF THIS WAS INADVERTENT
OR UNINTENTIONAL, BUT FOUND
THIS PATTERN SHOWED THAT
MR. PENA WAS PRACTICING LAW
DURING THIS TIME THAT HE WAS
SUSPENDED AND THAT IS JUST
ONE TIME, BUT OVER SEVERAL
DIFFERENT TIMES.
ISN'T THAT -- I MEAN, ISN'T
THAT WHAT HAPPENED?
DON'T WE REFER TO REFEREE AS
FAR AS THE CREDIBILITY OF
THE ATTORNEY?
THE REFEREE MADE CERTAIN
FINDINGS OF FACT AND THEN
FROM THOSE FINDING OF FACTS,
THIS IS THE PRACTICE OF LAW.
AND YOUR ARGUMENT WAS
THAT IT WAS UNINTENTIONAL.
IS WHAT YOUR ARGUMENT WAS?
WELL, THAT IS PART OF MY
ARGUMENT.
I WAS SQUAD QUESTION HOW DID
THIS HAPPEN.
I ANSWERED HOW IT HAPPENED,
NOW, WHAT THE REFEREE'S
FINDINGS WERE WERE THAT HE
DID SEND A LETTER OUT THAT
HAD THE WORDS GUILLERMO PENA
ESQUIRE ON IT.
I MEAN, IT IS ONE THING TO
SAY, GEE, I FORGOT, I USED
AN OLD LETTERHEAD.
IT IS ANOTHER THING TO SAY
THAT SOMEBODY WOULD -- I
MEAN WHAT DOCUMENT WOULD
SOMEBODY IN A SEPARATE PLACE
WHICH IS CCE HAVE A
SIGNATURE THAT HAD ESQUIRE
ON IT?
MEAN THAT DOESN'T MAKE ANY
SENSE TO ME AS HOW THAT
COULD BE INADVERTENT.
EXPLAIN TO ME.
WELL, FIRST OF ALL, WE
ARE TALKING ABOUT EVERYTHING
ON COMPUTERS HERE.
I KNOW THAT.
BUT THIS IS NOT THE LAW
FIRM'S COMPUTER.
HE SET IT IN SOME SEPARATE
PLACE WHERE HE IS BEING
LOOKED AT ANY OTHER
PARALEGAL, WHY WOULD
SOMEBODY HAVE ESQUIRE IN
THEIR COMPUTER?
HE IS WORKING AT ANOTHER
FIRM AND I AM GOING TO
ASSUME, I DIDN'T -- HE WE
DIDN'T GO INTO THIS.
I CAN NOT HAVE A FULL-BLOWN
EXPLANATION.
WELL, I FIND IT OFFENSIVE,
ACTUALLY, THAT EXPLANATION.
I THINK THAT IS INSULT TO
ANYBODY'S INTELLIGENCE THAT
SOMEBODY WHO IS SUSS PINED
FROM THE PRACTICE OF LAW WHO
SIGNS A LETTER DOESN'T SEE
THAT IT SAYS ESQUIRE UNDER
THEIR NAME ANOS THAT THAT IS
ABSOLUTELY WHAT IS
PROHIBITED BY THE TERMS OF A
VERY SERIOUS ONE-YEAR
SUSPENSION THAT HE AGREED
TO.
AND I DON'T FIND THAT ANY
EXPLANATION WHATSOEVER.
I APOLOGIZE, YOUR HONOR.
WHAT ABOUT EXHIBIT 2?
APPENDIX 2.
HE HAD LETTERHEAD GUILLERMO
PENA AND ASSOCIATES
ATTORNEYS AT LAW, THE
INVOICE IS RAY B 4 LEGAL
REPRESENTATION MARCH 22 TO
APRIL 9, 2004.
BILLED ON AN HOURLY BASIS,
AGREEMENT, EDIT AGREEMENT,
DRAFT OFFICER RESIGNATION,
DRAFT ARTICLE OF AMENDMENT,
THEN, AT THE END, TOTAL
BILLABLE TIME 6.2, 5.1 HOURS
TIMES $250 AND EVEN UNDER
YOURED A YOU MISSION -- YOUR
ADMISSION, A PARALEGAL
DOESN'T MAKE $150 AN HOUR,
FULL AMOUNT DUE $1275 AND
THEN AGAIN GUILLERMO E. PENA
ESQUIRE.
HOW DO YOU EXPLAIN ALL OF
THAT?
THAT IS A DOCUMENT THAT
REFEREE FOUND THAT HE HAD
PERFORMED THESE ACTS OR
CALLED CENTER EXPRESS PAID
HIM FOR THEM.
ALL RIGHT.
IT SEEMS TO BE ACCORDING TO
THE INVOICE ITSELF HE IS THE
LEGAL REPRESENTATION.
YOUR HONOR, HE WAS
EMPLOYEE OF CALL CENTER
EXPRESS OR DEPENDING ON WHO
YOU ASK.
WELL, IT'S NOT -- IF HE
WAS EMPLOYEE OF CALL CENTER
EXPRESS, WHY HE WOULD HE BE
SUBMITTING INVOICE FROM
GUILLERMO PENA ASSOCIATE AN
ATTORNEYS AT LAW.
BECAUSE THE EMPLOYEE
ASKED HIM TO SUBMIT AN
INVOICE.
ATTORNEYS AT LAW, WHY
COULDN'T HE HAVE SENT ON
PLAIN PAPER IF HE WAS AN
EMPLOYEE.
HE SHOULDN'T HAVE DONE
THAT.
LET ME ASK THIS YOU.
YOU HAVE ABOUT RUN OUT OF
YOUR TIME.
HERE, WE SAID AGAIN, WE
ARE GOING TO ACCEPT THE
REFEREE'S DETERMINATION.
ON MATTERS OF CREDIBILITY
AND ESSENTIALLY WHAT YOU ARE
OUTLINING HERE.
AND WE HAVE ALSO GOT A
RESPONSIBILITY EVEN TO MAKE
SURE THE LAWYER UNDERSTAND
THAT THEY ARE GOING TO HAVE
TO ABIDE BY WHAT THIS COURT
ORDERS AS FAR AS SUSPENSIONS
ARE CONCERNED.
IS THERE ANY REASON THAT
THIS, THAT YOU CAN GIVE ME
APART FROM THIS ARGUMENT
ABOUT HE DIDN'T DO IT AS TO
WHY HE SHOULDN'T BE
DISBARRED BECAUSE HE IS IN
VIOLATION OF HIS SUSPENSION?
YES.
WHEN HE RESERVED THE
SUSPENSION, HE CLOSED HIS
PRACTICE DOWN COMPLETE.
HE NEEDED TO GET A JOB.
HE GOES TO CALL CENTER
EXPRESS, A TELEMARKETING
FIRM.
HE GOES AND GET AS JOB.
WHATEVER THE STUFF THAT IS
WENT ON AT CALL CENTER
EXPRESS, HE WAS NOT HOLDING
HIMSELF OUT AS AN ATTORNEY.
HE HAS A BOSS THAT IS ASKING
HIM TO DO THINGS, TO GO
AMEND ARTICLES OF
INCORPORATION.
$35 FEE.
HE IS NOT GOING OUT TO THE
PUBLIC SAYING, HANG ON.
I AM STILL NOT
UNDERSTANDING YOUR STATEMENT
THAT HE WAS AN EMPLOYEE OF
THIS COMPANY.
WAS HE MAKING A SALARY IN
THE COMPANY?
YOUR HONOR, THERE WAS
NUMEROUS PAYCHECKS SPREAD
OUT --
WAS HE MAKING SAL ZY
YES IT WAS $1,000.
SOMETIMES IT WAS $1250 A
WEEK.
SOMETIMES IT WAS $1700.
I DON'T UNDERSTAND.
IF HE IS MAKING SALARY.
DID THEY SUBMIT W2 FORM, W
4?
CALL CENTER EXPRESS WAS
SHUT DOWN AT ONE POINT, BUT
CALL CENTER EXPRESS LIKED TO
CONSIDER ALL EMPLOYEES
INDEPENDENT CONTRACTORS.
THEY DID HE DUCT PAYROLL
TAXS? NO.
ALL OF THE EMPLOYEES
INDEPENDENT CONTRACTOR.
NOW HE IS SAYING
INDEPENDENT CONTRACTOR.
HE WAS NOT AN EMPLOYEE?
THAT IS A LEGAL
DISSTRICTION.
IT IS VERY IMPORTANT IN
THE PROCEEDING.
RIGHT.
IT IS VERY, VERY IMPORTANT
ONE, BUT WHAT HAPPENS IS IF
AN EMPLOYER SAYS YOU COME TO
WORK AT THIS DAY AND THIS
TIME, YOU BECOME AN
EMPLOYEE.
AND EMPLOYEE USUALLY MAKE
ASSET SAL ZY YES.
MY POSITION THAT HE WAS AN
EMPLOYEE EVEN THOUGH HE WAS
BEING TREATED AS AN
INDEPENDENT CONTRACTOR BY
HIS EMPLOYER.
REGARDLESS OF WHETHER HE
WAS EMPLOYEE OR WHATEVER YOU
ARE SAYING HE WAS.
HE WAS PRACTICING LAW.
HE WAS ACTING EVENTUALLY AS
HOUSE COUNSEL FOR THIS
CORPORATION, WAS HE NOT?
I AM HANDING HAVING
DIFFICULTY -- WHAT IS YOUR
POINT?
IN OTHER WORDS, ARE YOU
SAYING THE PENALTY IS TOO
SEVERE?
ARE YOU SAYING THAT THE
DETAILED FACTUAL FINALINGS
THE REFEREE THAT EVERYONE OF
THEM ARE JUST ABSOLUTELY
WRONG, THAT THERE IS NO
EVIDENCE TO SUPPORT THESE
FACTUAL FINDINGS?
WHAT IS YOUR ARGUMENT ON
BEHALF OF YOUR CLIENT?
MY ARGUMENT, HE TOOK A
ONE-YEAR SUSPENSION.
THE CLOSEST HE CLOSED HIS
PRACTICE.
HE WENT AND WORK FOR A
TELEMARKETING FIRM AS A
LAWYER?
NOT AS LAWYER.
WHAT DID HE DO FOR THEM?
WHATEVER HE WAS
INSTRUCTED TO DO BY
EMPLOYEE.
HE DOESN'T, IF HE WAS
INSTRUCTED TO DO LEGAL WORK
FOR THESE, ARE YOU TELLING
US, HE CAN SAY, WELL, THEY
TOLD ME TO DO THIS LEGAL
WORK, THEREFORE, I AM NOT
RESPONSE FOR THAT?
ABSOLUTELY NOT.
IS A SUSPEND LAUREN
TITLED TO WORK AS HOUSE
COUNSEL FOR A COMPANY LIKE
THIS OR AN INSURANCE COMPANY
OR WHATEVER JUST BECAUSE HE
IS NOT OUT, YOU KNOW, YOU
TALK ABOUT, THERE SHOULD BE
SOME DIFFERENCE BETWEEN
HOLDING HIMSELF OUT TO THE
PUBLIC, THIS COMPANY IS THE
PUBLIC, IS IT NOT?
YES.
ALL RIGHT.
WELL, HE THEN -- ARE YOU
TELLING US THAT HE WAS NOT
PERFORMING LEGAL WORK FOR
THAT COMPANY?
YOUR HONOR, THE QUICKEST
EXAMPLE OF THE --
WELL, JUST ANSWER MY
QUESTION.
ARE YOU REPRESENTING TO THIS
COURT UNDER THE EVIDENCE
THAT WAS GIVEN AT THIS
HEARING THAT THE REFEREE
COULD NOT CONCLUDE PROPERLY
SO THAT HE WAS DOING LEGAL
WORK FOR THIS COMPANY?
THAT IS WHAT -- ARE AN
OFFICER OF THE COURT, TOO?
ARE YOU REPRESENTING TO US
THIS HE REFEREE COULD NOT
PROPERLY CONCLUDE THAT HE
WAS DOING LEGAL WORK FOR
THIS COMPANY?
NO, I AM NOT.
WELL, THEN, THE FACT AS
FOUND BY THE REFEREE ARE
THAT HE WAS DOING LEGAL
WORK.
THAT IS PRACTICING LAW.
THAT IS WHAT WE CALL IT.
OKAY.
ALL RIGHT.
HE IS IN VIOLATION OF HIS
SUSPENSION.
ALL RIGHT.
NOW WHY THEN SHOULDN'T WE
FOLLOW IF YOU ACCEPT WHAT
THE REFEREE HAS FOUND HERE,
THE RECOMMENDATION OF THE
REFEREE THAT HE BE
DISBARRED?
BECAUSE HE HAD THE ONE
PRIOR DISCIPLINARY
PROCEEDING IN WHICH HE TOOK
A ONE-YEAR SUSPENSION, HE
HAD NOTHING PRIOR TO THAT,
CLOSED UP AN ONGOING
PRACTICE, GAVE UP HIS BOARD
CERTIFICATION, WAS A VERY,
VERY SUCCESSFUL ATTORNEY IN
THE PRACTICE OF LAW.
I DON'T KNOW ABOUT
FINANCIALLY.
ON THE PRACTICE OF LAW.
CERTIFICATION IS PART OF
THE CERTIFICATION
REQUIREMENTS IF YOU ARE
SUSPENDED, YOU LOSE IT,
RIGHT?
RIGHT.
YOU FORFEIT IT?
YES.
HE AGREED TO THIS ONE-YEAR
SUSPENSION AS PART OF THAT
--
YOU ARE PAST YOUR
REBUTTAL.
IF YOU WOULD, PLEASE EXPLAIN
TO THE COURT THAT ARGUMENT
WITH REGARD TO THE ULTIMATE
SANCTION OR DISCIPLINE IS
TOO SEVERE AND WHY.
IT IS TOO SEVERE BECAUSE
OF HIS PRIOR DISCIPLINARY
ACTION AS ONE INSTANCE, HE
GAVE EVERYTHING UP, WHEN
THAT HAPPENED AN WENT AND
WORKED IN THE PRIVATE
SECTOR, DID NOT HOLD HIMSELF
OUT AS AN ATTORNEY AS MANY
CASES ARE, DID NOT SHOW UP
IN COURT, MANY CASES,
HOLDING OUT AS AN ATTORNEY,
SHOWING UP IN COURT,
PRACTICING LAW IN COURT,
THEN, THEY ARE GETTING
DISBARRED.
HE DID NONE OF THAT.
HE ANSWERED COMPLAINT, HE
TALKED TO REGULATORY AGE
OPINION CIRCUMSTANCE SO ON
AND SO FORTH.
ANY OTHER TYPE OF
MITIGATION OR INFORMATION
THAT WAS GIVEN TO THE TRIAL
JUDGE TO TAKE INTO ACCOUNT
IN ADDITION TO THESE BAD
DECISIONS?
ANY OTHER MITIGATION AT THE
TRIAL COURT HAD THAT THE
TRIAL COURT OVERLOOKED OR
DIDN'T CONSIDER?
NOTHING.
NOTHING?
NOTHING.
THANK YOU VERY MUCH.
THANK YOU.
> MAY IT PLEASE THE COURT
RANDI LAZARUS ON BEHALF OF
THE FLORIDA BAR.
IT IS MR. PENA TO ESTABLISH
TO THIS COURT THAT THE
REFEREE HAD NO EVIDENCE TO
SUPPORT HER FINDINGS.
CAN WE GO -- I WOULD LIKE TO
GET A LITTLE HISTORY ON
THIS.
24 WAS A VOLUNTARY
SUSPENSION FOR A YEAR, BUT
HE FIRST UNDER AN EMERGENCY
SUSPENSION.
WHAT WAS THIS, WE TALKED
ABOUT THE IMPLICATIONS AND
STELLAR RECORD, WAS WHAT THE
YEAR SUSPENSION, THAT IS
PRETTY LONG, WHAT WAS THE
ACT?
IT WAS ORIGINALLY -- I DON'T
KNOW ABOUT STELLAR CAREER,
BUT I DO KNOW THERE WAS AN
EMERGENCY SUSPENSION IN
WHICH IT WAS ALLEGED THAT
MONEYS WERE USED, MONEYS HE
RECEIVED ON BEHALF OF SOME
INVESTORS WERE JUST
DISTRIBUTED OUT TO THIS
COMPANY IN WHICH HE WAS A
PRINCIPAL AND THAT MATTER
WAS TRIED BEFORE JUDGE
RODRIGUEZ AND THEY ARE AFTER
MR. PENA ENTERED INTO AN
AGREEMENT IN WHICH HE MADE
SOME ADMISSIONS WITH REGARD
TO THAT PROCEEDING AS WELL
AS SOMETHING THAT OCCURRED
AT THE EMERGENCY SUSPENSION
HEARING WHICH IS THAT HE DID
NOT GIVE COMPLETE TESTIMONY
BEFORE JUDGE RODRIGUEZ, SO
WE RESOLVED THE EMERGENCY
SUSPENSION CASE AND IT WAS A
PENDING PETITION FOR SHOW
CAUSE THAT I HAD FILED AFTER
THE EMERGENCY SUSPENSION
HERE.
NOW DO WE HAVE A RECORD
OF WHAT OCCURRED BEFORE
JUDGE RODRIGUEZ IN THE PRIOR
CASE?
IS THAT --
NO.
YOU DON'T HAVE THE RECORD OF
THAT BECAUSE IT WAS NOT AN
APPEAL TAKEN.
OKAY.
THERE WAS NEVER A
COMPLAINT FILED BECAUSE THAT
TYPE OF PROCEEDING RESOLVED.
BUT WE HAVE WHAT THE
SUSPENSION WAS FOR?
WE KNEE.
YES, DO YOU.
RIGHT NG THE CONSENT
JUDGMENT, THERE ARE, I BLEEN,
I HAVE IT HERE.
THERE ARE TWO -- I HAVE IT
SOMEWHERE HERE.
THERE ARE TWO ADMISSIONS
THAT HE MADE WITH REGARD TO
THE EMERGENCY SUSPENSION
PROCEEDING AS WELL AS THE
ADMISSION, THE OMISSION
BEFORE OR THE INCOMPLETE
TESTIMONY HE GAVE BEFORE THE
JUDGE.
TWO VERY SERIOUS MATTERS.
TWO VERY SEREAS MATTERS.
HE WAS PETITIONING THE WAY
THIS CAME TO THE BAR'S
ATTENTION OF PRACTICING WHEN
HE PETITIONED FOR REIN
STATEMENT.
NO, NOT EXACTLY.
WHAT ORIGINALLY HAPPENED WAS
HE PETITIONED REIN STAUMENT
-- PETITION FOR REIN
STATEMENT WAS FILED ON
NOVEMBER 18th AND DURING
THAT TIME WHEN WE WERE IN
THE -- STATEMENT THIS
INFORMATION CAME TO MY
ATTENTION.
THAT HE WAS PRACTICING
LAW?
YES.
THROUGH THE PROCEEDING WHICH
HE THEN ALLUDED TO AS A
RESULT OF THAT, I FILED A
SEPARATE PROCEEDINGING IN
THE COURT ON THE PETITION
FOR ORDER TO SHOW CAUSE,
THOSE TWO PROCEEDINGS
ACTUALLY TRAVELED SEPARATELY
AND THE COURT DID NOT
CONSOLIDATE THOSE TWO
MATTERS ULTIMATELY JUDGE
RODRIGUEZ WAS PINTED TO HEAR
BOTH THE REINSTATEMENT
DECISION AND THE ORDER TO
SHOW CAUSE.
CAN I ASK YOU A QUESTION.
YOU MENTIONED THAT WERE NOT
CONSOLIDATED BUT RELATED.
WAS MOTION FILED?
OUR COURT DID NOT
CONSOLIDATE?
A MOTION WAS FILED.
I OPPOSED IT.
THE TWO ACTIONS WERE NEVER
CONDOLLLATED.
IT WAS A POSITION AND
SUBMITTED?
YES.
OKAY.
THEN, WE
CONSOLIDATED.
THERE WAS OPPOSITION.
YES.
THEN WE WENT FORWARD ON
PASSION FOR SHOW CAUSE IN
FRONT OF JUDGE RODRIGUEZ.
WHAT WOULD YOU SAY WAS
THE MOST IF THERE WAS ONE
MOST SERIOUS ACTS OF
PRACTICING LAW, OR THERE IS
ONE OR IS IT JUST -- ENTIRE
PATTERN?
AND I GUESS I'M LOOKING AT
THIS FEBRUARY 6TH 20 # 04
LETTER, TO A LAWYER FROM A
LAWYER, AND SHGS, IS A PROMISED I
WOULD GET YOU A SETTLEMENT
OFF FORE TODAY.
DID THAT LAWYER -- DID HE
SPEAK OR TESTIFY AS AT THE
HEARING.
NO IDENTITY TESTIFY.
WHAT WOULD YOU SAY IS THE
MOST SERIOUS ACT THAT SHOWS
HE WAS PRACTICING LAW.
I DON'T KNOW IF WE CAN --
PARTICULAR HE WAS JUST IN
HOUSE COUNSEL THE FACT THAT
HE WAS IN-HOUSE COUNSEL FOR
A COMPANY AND IF YOU LOOK AT
THE TIME, THE TIME FRAME
HERE.
IT -- SUSPENDED BY THIS
COURT EFFECTIVE NOFRN 24063
ON EMERGENCY SUSPENSION, HE
IS ALREADY IN JANUARY, HAVE
HIM IN JANUARY RESPONDING TO
LETTERS FROM ANOTHER LAWYER
ON BEHALF OF THIS COMPANY
AND THAT IS THE THE JANUARY
04 LETTER WHERE HE RESPONDED
TO SUSAN, AND HE IS SIGNING
THAT ESQUIRE.
THEN OF YOU HIM, IN FEBRUARY
WITH MR. SOSAAS YOU
MENTIONED THEN LEGAL BILL
JUST ONE LEGAL BILL THAT WE
HAD WE DON'T KNOW WHAT ELSE
WAS OUT THERE, WHICH KFRNED
FROM MARCH TO APRIL.
DETESTIFY THAT THIS ABOUT
THIS IDEA THAT SOMEHOW
ESQUIRE JUST GOT ON THERE BY
MAGIC OR -- BY -- MAGIC OF
COM
COMPUTERS?
IN FACT THERE, WAS
ABSOLUTELY NO TESTIMONY AT
THE FINAL HEARING CONCERNING
HOW THIS HAPPENED OR WHY HE
USED WHETHER HE USED OLD
LETTERHEAD OR WHETHER IT WAS
OVERSIGHT ANYTHING OF THAT
--
DIDN'T TRY TO MITIGATE
WHATS THIS WAS.
HE GAVE NO EXPLANATION.
IN FACT HE WAS HE WAS QUITE
BOLD IN STATING THAT THE ACT
THAT HE COMMITTED WERE PESHL
PERMISSIBLE, AND -- HE
PERFECT WILL PERMISSIBLE
ANYBODY WOULD GO ON WEBSITE
THERE SHOULD BE GINN
INJUNCTION AGAINST SECRETARY
OF STATE BECAUSE SECOND OF
INDICATE -- STATE ENCOURAGES
PEOPLE GO ON -- THE WEBSITE,
AND --
DO WE HAVE ANY CASES OUT
THERE THAT INDICATE THAT A
SUSPENDED LAWYER CAN WORK AS
HOUSE COUNSEL?
OF COURSE NOT I MEAN OE--
YOU CANNOT BE A SUSPENDED
LAWYER, AND HAVE CLIENT
CONTACT FIRST OF ALL,
MR. PENA WAS HAVING CLIENT
CONTACT, ADMITTEDLY SO, IN
THAT ONE BILL THAT WE HAD,
WE HAVE HIM HAVING I BELIEVE
AT LEAST NINE CLIENT
CONTACTS.
WE KNOW THAT SUSPENDED
LAWYERS DO GO TO WORK FOR A
COMPANY AS PARALLEL, --
PARALEGAL HAVE WE DRAWN A
LINE THERE AS TO WHETHER THE
DIFFERENCE IS?
.
WELL, A SUSPEND LAWYER
ALSO HAS TO BE SUPERVISED
THERE IS A DIFFERENCE.
AND THAT IS WHY THE WE HAVE
THE REQUIREMENT UNDER THE
FLORIDA RULES REGULATING THE
FLORIDA BAR THAT WE REQUIRE
THE EMPLOYER TO MANY FILE
SOMETHING WITH THE BAR AS
WELL AS EMPLOYER MEANING
SUSPEND LAWYER TO SAY THAT
I'M FOLLOWING THE RULES, I'M
NOT ENGAGING IN PRACTICE OF
LAW AND SUPERVISOR IS SAYING
THAT AS WELL, SO,
CONCEIVABLY COURSE, WORK FOR
A COMPANY BUT YOU CAN'T ACT
AS THEIR LAWYER.
AND THAT'S EXACTLY WERE A
MR. PENA WAS DOING.
I THINK YOU PROBABLY
ANSWERED THIS, IN THE
ANSWERS TO THESE QUESTIONS,
BUT, YOU KNOW, PART OF THE
ALMOST INEXPLICABLE THING
HERE IS HOW CAN A LAWYER
WHEN YOU READ THE PERSONAL
HISTORY THAT REFEREE
OUTLINED HERE, THAT WE'VE
GOT A LAWYER SORE CERTIFIED
CRIMINAL TRIAL LAW BOARD OF
LEGAL SPELL ADDITIONAL AB
RATING BY HARTINDALE HUBBLE
HE IS IN THE BAR REGISTRY
PREEMINENT ATTORNEYS WHO'S
WHO IN AMERICA WHO'S WHO IN
AMERICAN LAW HE RECEIVED
SEVERAL PRO BONO RECOGNITION
AWARDS FROM THE PUT
SOMETHING BACK PROGRAM DOWN
IN MIAMI, AND THE CUBAN BAR
ASSOCIATION PRO BONO
PROJECT, IN OTHER WORDS ANY
EXPLAN PLAN -- EXPLANATION
AT THIS HEARING SOMEBODY
THAT HAS GONE FROM THE
MOUNTAIN TOPIC THAT REALLY
IS DESCRIBED HERE, MOUNTAIN
TOP DESCRIBED HERE TO
COMMITTING FIRST OF ALL
ENDING UP TO THE ONE-YEAR
SUSPENSION.
NOTHING YOUR HONOR.
-- -- WAS THERE ANY
ATTEMPT TO EXPLAIN THAT --
NO.
IN FACT THERE WAS NOT.
THE EXPLANATIONS THAT WERE
GIVEN BY MR. PENA WAS THAT
HE WAS PERMITTED TO DO WHAT
HE WAS DOING THERE WAS
NOTHING WRONG WITH WHAT HE
WAS DOING.
THIS IS NOT A CASE --
SIMILAR TO ONES WHERE -- IN
RECENTLY THERE IS SHARUSE
CASE IN WHICH THAT LAWYER
HAD SOME MENTAL HEALTH
ISSUES DIDN'T OPEN
ENVELOPES, SAID SHE WAS
NIGHT WAR SHE WAS EVEN
SUSPENDED, HAD NOTHING LIKE
THAT.
WE HAVE NOTHING LIKE IN THE
COHEN CASE, WHERE, THE
ATTORNEY JUST DIDN'T REALIZE
THERE WAS PROHIBITION ABOUT
PUTTING UP THIS SIGN OR
THERE WAS ANOTHER ATTORNEY
USED A LETTER HEAD
MISTAKENLY BUT THIS MR. PENA
DID NOT TESTIFY AS TO THOSE
THINGS HAPPENING, THERE WAS
NO EXPLANATION GIVE, FINAL
HEARING, SO IT IS REALLY NOT
HARD TO UNDERSTAND WHY THE
REFEREE CONCLUDED AS SHE
DID.
AND --
WAS THERE ANY EXPLANATION
THERE THAT HE HAD FOR
INSTANCE CONTACTED THE
FLORIDA BAR OR AN
EXPERIENCED ATTORNEY OR
WHATEVER AND SAID YOU KNOW,
HERE IS WHAT I WOULD LIKE TO
DO I WOULD LIKE GO TO WORK
FOR THIS COMPANY AND DO THUS
AND SO, AND WOULD THAT BE
ALL RIGHT?
YOU KNOW WHILE I'M SUSPEND
SND WAS THERE ANY --
THERE WAS NO TESTIMONY OF
THAT NATURE YOUR HONOR, HE
STEADFAST
STEADFASTLY MAINTAINED
THROUGHOUT THE WILL FINAL
HEARING THAT WHAT HE DID WAS
PERL PERMISSIBLE -- PERFECT
WILL PERMISSIBLE COMPANY
PRINCIPALS WERE AWARE HE WAS
SUSPENDED THAT HE WAS JUST
PERFORMING ACTS A WEBS
PERMITTED TO DO AND IN FAKCT
-- I SUBMITTED A PORTION OF
DEPOSITION TESTIMONY OF ONE
OF THE PRINCIPALS PABLO
MARTINEZ, AND HE TESTIFIED
THAT MR. PENA WAS THE LAWYER
FOR THE COMPANY, HE WAS
THEIR BUSINESS LAWYER, HE
WAS THEIR LEGAL ADVISER, AND
THAT WAS HIS ROLE.
DID HE KNOW THAT HE WAS
SUSPENDED, THOUGH.
YES.
SO WHAT THERE IS NOTHING
SO HE DIDN'T REALIZE THAT
YOU CAN'T HAVE AN IN-HOUSE
COUNSEL AS SUSPENDED LAWYER
AS IN-HOUSE COUNSEL?
I GUESS WE DON'T --
GUESS NOT.
IT -- THERE RARE THESE PEOPLE
THAT WERE PRINCIPALS IN THE
COMPANY WERE NOT LAWYERS.
SO WE CAN'T --
WE DON'T KNOW EXACTLY
WHAT ELSE THEY MAY HAVE --
DONE OR NOT DONE.
REGARDING APPENDIX NUMBER
ONE, DID LEWIS NICHOLAS
IN-HOUSE ATTORNEY FOR OCEAN
BANK TESTIFY BY DEPOSITION
OR AT THE HEARING?
HE TEST -- TESTIFIED AT THE
HEARING.
DID EHE GO AHEAD WHAT DE--
DID HE SAY ABOUT CONTACTS
WITH MR. PENA.
HE SAID THAT HE RECEIVED
IN FACT MR. PENA CALLED AND
LEFT A MESSAGE WITH HIS WITH
MR. NICHOLAS'S SECRETARY ONE
OF THE THINGS ADMITTED INTO
EVIDENCE WAS THE YELLOW
STICKY SOCIETY FLOAT
MR. NICHOLAS' SECRETARY THAT
SAID PILL BEEN -- BILL PENA
ESQUIRE CALLED ON BEHALF OF
THIS COMPANY, HE THEN
MR. NICHOLAS I BELIEVE
RUSHLD THE TELEPHONE CALL --
RETURNED THE TELEPHONE CALL
MR. NICHOLAS TESTIFIED THAT
MR. PENA IDENTIFIED HIMSELF
AS HOUSE COUNSEL FOR --
EXPRESS HE DISCUSSED WITH
HIM THAT THERE WAS A PENDING
LAWSUIT, AND THAT MR. PENA
WAS GOING TO FOLLOW -- FILE
A MOTION FOR EXTENSION OF
TIME TO TILE ANSWER TO THE
COMPLAINT THERE WAS
DISCUSSION BACK AND FORTH
CONCERNING THE PAYMENT OF --
WHICH WAS SUBJECT OF THE
LITIGATION MR. NICHOLAS WAS
SAID THAT MR. PENA
IDENTIFIED HIMSELF AS THE
LAWYER FOR HOUSE COUNSEL FOR
THE COMPANY, HE THEN
MR. NICK -- WROTE AS THE --
LETTER CONFIRMED
CONVERSATION, AND FOLLOWED
UP ON IT, THERE WAS NO
LETTER BACK FROM MR. PENA
SAYING DON'T CALL ME ESQUIRE
YOU'VE GOT THIS ALL WRONG
I'M NOT FILING ANYTHING.
NOTHING LIKE THAT.
THAT SEEMS TO ME IN THE
MOST DAMAGING EVIDENCE EVEN
MORE DAMAGING THAN THE
DOCUMENTS THAT OF YOU A
WITNESS TESTIFIED THAT HE
REPRESENTED HIMSELF AS HOUSE
COUNSEL BECAUSE MR. PENA
COULD SAY WELL SOME OF THESE
THINGS WERE CONSISTENT WITH
EMPLOYEE OF THE COMPANY
SOMETHING LIKE.
THAT IS WHAT WE HAVE
CONSISTENTLY DON'T FORGET
YOUR HON SAUL PLAST AND MRS.
SELG, IN APRIL 200 4SHGS
GAVE MR. PENA, 100 DOLLARS,
TO LOOK INTO A MATTER
CONCERNING MR. I TKHINK OLE
FATHER WHO HAD BEEN KILLED
IN ACCIDENT TO REVIEW POLICE
REPORTS, MAD NOTHING TO DO
-- HAD NOTHING DO WITH --
ATTACHED AS SECOND TO LAST.
--
THIS REFEREE'S REPORT WAS
ENTERED ON JULY 2005.
HAS THERE BEEN ANY ADDITION
ADDITIONAL GRIEVANCES?
FILED AS TO MR. PENA?
ANY ADDITIONAL WHAL.
ADDITIONAL MATTERS FILED
AS TO HIS ACTIVITIES, SINCE
2005?
THERE HAVE NOT BEEN AS OF
THIS MOMENT.
BUT THERE MAY BE ONE FILE
SHORTLY.
.
WHAT YOE DOES IT TAKE SO
LONG WHY DOES IT TAKE SO
LONG FROM JULY OF 2005, OVER
A YEAR --
OH, WELL.
THE NOW REMEMBER MR. PENA
WAS THE APELNANT THIS MATTER
IF YOU NOTICE, IF YOU LOOK
AT THE FINAL BRIEF THAT YOU
HAVE HERE, WE ARE ON THE
SECOND AMENDED INITIAL BRIEF
BECAUSE I MOVED TO STRIKE
HIS BRIEF TWICE.
BECAUSE THERE WERE MATTERS
AND I CAN -- CONTAINED IN
THE BRIEF NOT BEFORE THE
REFEREE SO I BELIEVE AN
AFFIDAVIT, AND REFERENCES TO
NOT AFFIDAVIT,REFERENCES TO
SOME THINGS AS WELL AS
DEPOSITION OF MR. PENA NEVER
BEFORE THE REFEREE SO THE
TIME THAT -- SO THE MATTERS
WERE STRUCK, AND I DON'T
BELIEVE I ASKED FOR AN
EXTENSION OF TIME TO FILE MY
BRIEF.
I GUESS THE ISSUE IS I
DON'T KNOW THAT THERE'S ANY
RECORD THAT -- TO DEAL WITH
IT AS TO WHETHER IF THE
COURT SHOULD APPROVE THE
REFEREE'S REPORT, WHETHER
THE DISBARMENT WOULD DATE
FROM THE DATE OFPROVAL OR
THE DATE OF THE REFEREE'S
REPORT.
REPORT.
WELL, BUT GENERALLY, YOUR
HONOR -- COME OUT OF THIS
COURT THAT I HAVE SEEN ARE
FROM THE DATE -- DATE OF THE
COURT ORDER UNLESS THERE WAS
SOMETHING SPECIFIED BY THE
REFEREE I DON'T THINK THERE
WAS ANY NONPROTUNC,
RECOMMENDATION HERE IF THE
COURT THINKS THERE WAS TIME
DELAY THAT SHOULD NOT BE
ATTRIBUTABLE TO THE FLORIDA
BAR THAT WAS ATTRIBUTABLE TO
MR. PENA BECAUSE HIS BRIEF
HAD BEEN STRUCK TWICE.
DID YOU SEE IN THE
PROCESS ANYWHERE WHERE THE
COURT PARTICIPATED IN THEE
UNNECESSARY DELAY ON THAT
THAT WE NEED TO.
O, NO.
TO CORRECT.
NO YOUR HONOR ON THE
CONTRARY I THINK THIS CASE
GOT VERY RAPIDLY BEFORE THE
REFEREE, AND IT WAS HEARD,
AND THE REPORT WAS
ISSUED,NOT MORE THAN, MAYBE
A LITTLE MORE THAN 30 DAYS,
AND THERE WAS A AT LEAST A
HALF DAY OF TESTIMONY BEFORE
THE REFEREE THAT --
I'M NOT -- NOTHING IN
THIS SUPREME COURT CAUSED
UNNECESSARY DELAY THAT YOU
SAW IN.
YOUR HONOR I WOULD NEVER
BE SO FOLLOWED --
[LAUGHTER], SUPREME COURT --
WE NEED TO KNOW THOSE
THINGS I MEAN THIS HAS
COMBRAERN WE DO NEED TO KNOW
THOSE THINGS.
I THINK ATREEK IF
ATTRIBUTABLE TO ANYBODY, I
DON'T KNOW I'M NOT SAYING
THIS PERSONALLY -- BECAUSE
WE WORKED VERY WELL
TOGETHER, BUT, BECAUSE THERE
WERE TWO.
THE NATURE OF THE CASE
MORE THAN IT IS SOMETHING
THAT THE COURT DID.
IT BECOMES AN ISSUE,
BECAUSE, AGAIN, IF SOMEBODY
IS GOING TO BE DISBARRED YOU
KNOW THEN AND IT IS TWO
YEARS TILL THE PP PIN COMES --
OPINION COMES OUT NOT -- THE
IN ISSUE WHETHER THAT SHOULD
GO BACK TO HE COULDN'T HAVE
FROM PRACTICAL POINT OF VIEW
HAVE STARTED ANYTHING WHILE
THESE PROCEEDINGS ARE PEND,
AND NOT THAT I FEEL IN THIS
PARTICULAR CASE PARTICULARLY
BAD
BADLY FOR MR. PENA SEEMS
LIKE HE BROUGHT IT ON
HIMSELF
HIMSELF, JUST -- GENERALLY
RULE FOR SELL OFF THESE BAR
CASES THINGER AT APPELLATE
LEVEL THAN WE WOULD LIKE TO
SEE THEM TAKE.
I CAN JUST TELL YOU FROM
WHERE I SIT THAT WE STRIVE
TO MOVE THE CASES, BEFORE
THE REFEREES, AND NOT
REQUEST ADDITIONAL TIME WE
TRY TO I BELIEVE, MOST OF
THE TIME FILE OUR BRIEFS
WITHOUT REFLECTING
EXTENSIONS, SO WE TRY VERY
BEST.
DID YOU SAY IN ASSISTANCE
THE APPELLATE THE
RESPONDENT'S BRIEF WAS
STRICKEN.
TWICE.
TWICE.
FOR WHAT REASON.
BECAUSE THERE WERE THERE
WERE MATTERS OUTSIDE OF THE
RECORD CONTAINED IN THE
BRIEF.
THAT IS PART OF THE
EXPLANATION THAT --
YES, THAT IS THE
EXPLANATION.
THANK YOU VERY MUCH.
THANK YOU FOR YOUR TIME.
-- WITH OUR ASSISTANCE OF
YOU PEJSDED YOUR TIME I WILL
GIVE YOU ONE MINUTE IF THERE
IS SOMETHING YOU NEED TO
RESPOND.
TO IF NOT --.
SNOOM WOULD BE UNNECESSARY.
THANK YOU VERY MUCH.