The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
The Florida Bar v. Hanry I. Smyler
SC06-432
>>> ALL RISE.
THE NEXT CASE, I GUESS FLORIDA BAR VERSUS SMYLER, PLEASE STATE YOUR APPEARANCE.
MAY IT PLEASE THE COURT MY NAME IS BRIAN --
FILED LAST WEEK, A A NOTICE OF APPEARANCE ON BEHALF OF MR. SMYLER.
IS MR. SMYLER HERE.
HE IS HERE PURSUANT TO YOUR INSTRUCTIONS IN COURT.
I THINK OI I THINK MR. SMYLER SHOULD COME UP.
HE IS PRESENT YOUR HONOR, YOU MAY PROCESSED. .
WE HAVE TODAY, FILED A SUPPLEMENTAL AUTHORITY ON THREE CASES, WHICH HAVE TO DO IN OUR SECOND POINT OF WILLFULNESS, AND WE ARE GOING TO PRESENT TO YOU THREE ARGUMENTS FIRST ONE BEING THAT THE --
DID YOU FURNISH SUPPLEMENTAL AUTHORITY TO OPPOSING COUNSEL.
DID YOUR HONOR.
BEFORE THIS MORNING.
THIS MORNING BUT WELL-KNOWN CASES, THEY ARE NOT -- YES, NOT THIS MORNING, THIS MORNING, I FUNISHED FUNISHED.
YOU ARE NOT GOING DISCUSS THOSE CASES IN ARTICLE ARGUMENT.
I WON'T ORAL ARGUMENT.
I WOULDN'T, I WON'T.
PROCEED. .
MR. SMYLER, APRIL 15TH OF 2005 FILED A PETITION TO RESIGN, IN THE FLORIDA BAR, WHICH WAS GRANTED IN SEPTEMBER OF 2005.
THIS MATTER, COMES TO US, FROM ON THE BASIS OF THE FACT THAT WE ENTERED AN ORDER PURSUANT TO THAT PETITION IN WHICH WE ACCEPTED THE RESIGNATION, WE STATED IN THE ORDER THAT THE RESIGNATION WAS TANTAMOUNT TO DISBARMENT WE HELD IN A CASE SO THAT IT WAS CLEAR TO ALL THAT CHOSE GO THAT STEP THAT THAT WAS TANTAMOUNT TO DISBARMENT, IN THE PETITION, MR. SMYLER AGREED THAT HE WOULD TURN OVER CERTAIN RECORD OF THIS TRUST ACCOUNT TO THE FLORIDA BAR. AND AS I UNDERSTAND THE CONTEMPT PROCEEDINGS THAT WERE SENT TO THE REFEREE, WAS TO TRY TO DETERMINE WHETHER HE HAD DONE THAT OR NOT THE EVIDENCE HE WAS DID NOT ISN'T THAT CORRECT?
THAT IS SUBSTANTIALLY CORRECT YOUR HONOR.
SO WHAT -- WHAT -- WHAT IS THE COURT THEN TO DO? IN A SITUATION IN WHICH THERE HAS BEEN AN AGREEMENT WITH THAT THE COURT WOULD ACCEPT THE RESIGNATION THAT THE LAWYER WOULD BE DISBARRED BUT THAT THE -- IN CONDITION OF THE ACCEPTANCE THAT THE LAWYERS GOING TO TURN OVER THESE RECORDS THE LAWYER DOESN'T DO IT. WHAT DO YOU SAY NOT ON THE BASE OF SOMES CASE BUT WHAT IS -- THE WE HAVE SHOULD BE -- REMEDY BE? THE BY THE COURT TOWARD THAT LAWYER.
I THINK THE REMEDY HAS TO DO IN GREAT PART WHETHER THERE WAS A WILLFUL FAILURE TO COMPLY, OR SOMETHING LESS THAN THAT. AND I THINK THE RECORD IS CLEAR THAT IN THIS CASE THERE WAS NOT A WILLFULNESS IN FACT IT WAS TESTIFIED ON PAGE TEN OF THE TRANSCRIPT THAT IT WAS NOT THERE WAS NO WILLFULNESS, MR. SMYLER HAD A SITUATION WHERE HE DOWNSIZED HIS PRACTICE, THAT IS ON PAGE FIVE, OF -- SIX OF TRANSCRIPT USED OFFICE STAFF TO SUPERVISE DAY LABOR OERS TO PLAY SIGNIFICANT AMOUNT OF RECORDS IN STORAGE.
LET ME GET A BRIAN HEWITT THAT WHEN WAS THE FIRST COMPLAINT MADE BY THE BAR TO YOUR CLIENT IN RELATIONSHIP TO TRUST ACCOUNT ISSUES?
THERE WAS A ACCORDING TO THE REFEREE'S DESIGNATION THERE WAS A 2005 CASE, FILED.
THAT WAS RELATED TO TRUST ACCOUNTS.
YES YOUR HONOR.
GIVE ME JUST QUICKLY AS YOU CAN, THE EARLIEST POINT WHEN YOUR CLIENT WAS AWARE IS THERE WAS CONCERN MADE FROM THE BAR THAT THERE WAS SOME IRREGULARITY IN THE TRUST ACCOUNTS, AND THAT HE WOULD HAVE TO PUT THE BANK RECORDS AND TRUST ACCOUNTS MAKE COPIES OF THEM PROVIDE THEM FOR THE AUDITOR OF THE BAR? WAS THAT BEFORE THE MOVE?
I'M SORRY BEFORE WHAT?
WAS THAT A BEFORE THE MOVE TO DOWNSIZEING THAT WERE YOU GETTING READY TO TALK ABOUT.
AND IF SO LOUNGE BEFORE WHOA I'M TRYING TO DO IS PLACE IN CONTEXT HOW LONG DID HE KNOW HE HAD TO GET THESE RECORDS TOGETHER, AND HOW LONG DID HE HAVE AN OPPORTUNITY TO PROVIDE THEM TO THE BAR FULLY, IF ANY, PRIOR TO THE MOVE?
IN THE YEAR 2005, WHEN THIS CASE WAS FILED, I BELIEVE WOULD BE THE POINT IN TIME. JUSTICE THAT YOU ARE MAKING REFERENCE TO.
WHEN THE BADGLEY CASE --
WHEN -- WHEN DID HE MOVE?
THE RECORDS WITH REGARDS TO BADGLEY WERE PROVIDED TO THE BARR BEFORE THE RESIGNATION RESIGNATION, SOME -- I'M SAYING SOME REPORTS, BECAUSE YOU ARE TALKING TRUST RECORDS IN TOTALITY, WERE NOT BUT THE RECORDS ON BADGLEY WERE PROVIDED BEFORE THE RESIGNATION IS MY UNDERSTANDING UNDERSTANDING. THERE WERE OTHER RECORDS, THAT IN AS PART OF THE MOVE WERE NOT BECAME UNVEILBLE
LET ME FOLLOW UP ON THIS, AND WHY I'M -- VERY -- CONCERNED, DISTURBED IS THAT THE UNDERLYING CONDUCT FOR WHICH WE ACCEPTED A DISCIPLINARY RESIGNATION IN SOME MINDS EVEN THOUGH TAUNT MT. TO DISBARMENT SEEMS BETTER YOU KNOW THAT THEY SAY WELL I VOER RESIGNEDINVOLVE WAS A TRUST -- VOLUNTARILY RESIGNED IN ACCEPTING THE PETITION HE AGREES IT WASN'T A GENERIC AGREEMENT, HE AGREED, TO AVOID TRUT ACCOUNT REPORTS FROM 2000 TO THE PRESENT, HE KNOWS THAT THAT IS A REQUIREMENT. AND THEN SOMEHOW ALL THOSE RECORDS ARE CON-- CONVENIENTLY LOSST? I THINK THE COURT AND I CAN SAY ME IN PARTICULAR DESPITE THE TESTIMONY IT WASN'T WIL WILLFUL SEEMS TO THIS MEMBER OF THE COURT TO BE COMPLETELY IRRESPONSIBLE TO HAVE KNOWING THAT HIS DISPLINARY RESIGNATION DEPENDS ON O IT NOT TO TAKE STEPS TO SEGREGATE THESE RECORDS RECORDS, WHEN THE -- ORIGINAL COMPLAINT IS A TRUST ACCOUNT VIOLATION SO DOES IT THERE IS REALLY NO ANSWER TO THAT DO YOU HAVE A GOOD INSTANCE.
I HAVE A FACTUAL ANSWER OF HIS HEALTH, HE HIMSELF, WAS IT IS IN THE RECORD, SUFFERING FROM HART ATTACK DIABETES CHRONIC OBSTRUCTIVE PULMONARY DISEASE HAD SEARCH ANSWERING PLASTY PROCEDURES.
-- ANGIOPLASTY PROCEDURES PROCEDURES.
THIS DAY AND AGE WE COME TO CERTAIN AGE THERE ARE TEAM PEOPLE HAVE APPROXIMATELY PROBLEMS WASN'T HOSPITALIZED FOR QUADRUPLE BYPASS ANGIOPLASTIES ANGIOPLASTIES, HEART CONDITION I DON'T SEE HOW THAT COMPETENCYIES NOT MAKING STEPS IS TO COMPLY WITH WHAT WAS EXPLICIT CONDITION OF THE PETITION FOR DISCIPLINARY RESIGNATION.
HIS STEPS IS A UNDERSTAND THE RECORD, WERE TO TAKE HIS TRUSTED LONG -- ASK HIS TRUSTED LONG TERM LONG TIME EMPLOYEE, TO PERFORM THE RECORD STORAGE OPERATION, AND --
DID HE ACTUALLY TELL HER, THEN, TO SEGREGATE THESE RECORDS RECORDS, BECAUSE IT IS VERY IMPORTANT THAT I GET THESE RECORDS TO THE BAR, AND SO MAKE SURE THAT THEY AREN'T WITH ALL THESE OTHER OI I MEAN WAS ANY THAT HAVE KIND OF THING DONE.
THAT IS NOT IN THE RECORD SO I CAN'T --
HAS THERE BEEN ANY ATTEMPT SINCE THE RECORDS WERE KNOWN TO BE LOST TO RECONSTRUCT THE RECORDS? TO GO TO THE BANK, TO GET THE RECORDS PRODUCED? WE ARE HERE, MR. SMYLER HAS BEEN DISBARRED, THE ISSUE IS WHETHER IS GOING TO BE A PERMANENT DISBARMENT. BUT THE -- LIFE OF ME UNDER THESE CIRCUMSTANCES, I DON'T SEE HOW MR. SMYLER COULD EXPECT TO BE READMITTED AT ANY TIME, TO THE FLORIDA BAR UNTIL THESE RECORDS REAR CONSTRUCT CONSTRUCTED, AND THERE BE SOME EVIDENCE OF WHAT WENT ON WITH HAVE HIS TRUST ACCOUNT DURING THE PERIOD OF TIME FROM MAY 1, 2000 UNTIL THE TIME HE WAS DISBARRED. SO IF JUSTICE WELLNESS IN ANSWERS TO YOUR QUESTION THE RECORDS HAVE NOT BEEN OBTAINED FROM THE BANK, BUT THE PROBLEM IS EVEN OBTAINING THE CHECKS, OR THE BANK STATEMENTS, WOULD NOT BE SUFFICIENT, BECAUSE OF THE FILES THEMSELVES OR THE LEDGERS LEDGERS, THE RECORDS THAT WOULD TIE IN WHAT THE WHAT THE DISPERSEMENTS AND RECEIPTS HAVE TO DO WITH --
SOMEHOW -- IT IS -- THERE HAS TO BE -- IF THE COURT ORDER IS GOING TO MAKE ANY DIFFERENCE APPROVING THIS THERE IS GOING TO HAVE TO BE SOME RECONCILIATION IN SOME FORM OR AT LEAST A GOOD FAITH EFFORT MADE AT DOING THAT. AND I CAN'T SEE THAT THERE IS -- THERE HAS BEEN PROVED PROFFERED A GOOD FAITH EFFORT TO TRY TO SOLVE THIS PROBLEM ON BEHALF OF MR. SMILER.
MY TAKE ON THAT WOULD BE UNDER THE PRIOR EXISTING ORDER, OF THIS COURT, IN ORDER FOR HIM TO APPLY, FOR TO BE -- BECOME AGAIN A MEMBER OF THE BAR HE WOULD HAVE TO PASS A RIGOROUS EXAMINATION EXAMINATION, I'M NOT TALKING ABOUT BAR EXAM I'M TALKING ABOUT THIS COURT'S EXAMINATION EXAMINATION, AND I'M QUITE SURE THAT THOSE PARTICULAR ITEMS WOULD BE PART THAT HAVE. SO THAT TO THE EXTENT THAT THIS TWO OF BE RECONCILED AT SOME SOMETIME, IN ORDER FOR HIM TO HAVE ANY FUTURE CONDUCT, APPROVED BY THIS COURT --
WELL DO I TAKE IT FROM YOUR FILINGS IN THIS CASE GOING TO AN ISSUE REALLY THAT IS RAISED BY JUSTICE WELLS' QUESTION THAT YOUR CLIENT IS WILLING TO STIPULATE THAT HE DOES NOT HAVE THE RIGHT TO APPLY FOR READMISSION TO THE BAR UNDER THE TERMS OF THIS -- DISCIPLINARY RESIGNATION? IS THAT --; IS THAT CORRECT?
I'M NOT AUTHORIZED TO MAKE SUCH STIPULATION I DIDN'T SEE THAT IN THE RECORD.
-- I'M SORRY, SIR.
I HAD SOME IMPRESSION FROM YOUR FILINGS THAT REALLY THERE WAS NO INTENT, INTENT TO RESUME THE PRACTICE OF LAW.
THAT IS TRUE. THAT -- HIS HEALTH IS SUCH THAT IS ABSOLUTELY TRUE SO IF BUILT YOUR CLIENT IS NOT -- BUT YOUR CLIENT IS NOT WILLING TO HAVE A CONDITION THAT HAVE, THAT HE NOT THAT HE CONTINUE UNDER THE DISCIPLINARY RESIGNATION, BUT WITHOUT THE RIGHT TO REAPPLY FOR ADMISSION.
WHEN I COME BACK TO MY REBUTTAL I'LL HAVE AN ANSWER FOR YOU I HAVE NOT --
BEFORE. YOU THAT IS CRITICAL PART.
I UNDERSTAND, JUSTICE.
LOOKING AT THE ISSUE OF WILLFULNESS, COUPLE OFFED WITH THE -- COUPLED WITH THE IMPACT OF A PERMANENT DISBARMENT OF COURSE, YOU KNOW, WITH SO, YOU CAN ADDRESS THAT ON REBUTTAL P.
BEFORE YOU SIT DOWN, IS THERE ANY QUESTION HERE, AS TO WHETHER OR NOT YOUR CLIENT OUZ ANY MONEY TO ANYONE? ARE WE LOOKING AT THESE -- DO WE NEED TO LOOK AT THESE TRUST ACCOUNT RECORDS, TO DETERMINE WHEN THERE IS SOME CLIENTS OUT THERE, TO THAT HE OWES MONEY TO?
TO MY KNOWLEDGE, THERE ARE NO PENDING CLAIMS WITH THE EXCEPTION OF THE BAGLEY CASE, NOW, THE BAGLEY CASE I KNOW ABOUT THE BAGLEY CASE, BECAUSE THE BAR DID OBJECTIVE THE RECORDS DID OBTAIN THE RECORDS THERE WAS CIVIL TRIAL THE BAR AUDITOR TESTIFIED AT THE CIVIL CASE. SO WITH THE --
BUT THE ONLY ISSUE ON THE CONTEMPT IS THE FAILURE TO PRODUCE THE RECORDS; IS THAT CORRECT?
THAT IS MY UNDERSTANDING, THAT HE DIDN'T WITHIN THE 90-DAY PERIOD WHICH ENDED IN JULY, WHICH IS BEFORE THE COURT -- THE RULE WAS AMEND TIED ALLOW VOLUNTARYIFLATIONVOLUNTARIFLATION.
PRESENT A COMPLETE SET OF OF --
EXACTLY BUT TO MY KNOWLEDGE THERE ARE OR IN OTHER PENDING COMPLAINTS, NO OTHER PENDING LAWSUITS, WITH THE EXCEPTION OF BAGLEY --
HOW MUCH WAS INVOLVED IN THE IN THAT COMPLAINT HOW MUCH MONEY WAS IT WAS IT ACTUALLY MONEY TAKEN FROM THE CLIENT?
IT WAS MONEY IT WAS A COLLECTION MATTER, THIS OUTSIDE THE RECORD I WILL CERTAINLY GO INTO IT. IT WAS COLLECTION MATTER THAT WAS COLLECTED, AND THEN NOT FUNDED TO THE CLIENT.
HOW MUCH MONEY?
AND THE TESTIMONY.
ABOUT 100,000, AROUND 100,000, BUT BECAUSE IT WAS TREBLE DAMAGE THERE WAS TREBLING INVOLVED, I BELIEVE I DON'T -- PRINCIPAL -- ATTORNEYS FEES WENT OVER 100 BECAUSE THAT HAVE.
YOU ARE IN WELL INTO YOUR REBUTTAL REBUTTAL, IF YOU WANT TO SAVE A FEW --
YES WOULD I LIKE TO SAVE.
THANK YOU.
MAY IT PLEASE THE COURT BARNABY MIN BEHALF OF FLORIDA BAR ASKING THIS COURT APPROVE THE REFEREE'S REPORT, REMEMBERING.
WOULD YOU PICK YOU ON THIS LAST AREA OF INQUIRY ABOUTBY THE COURT AND THAT IS ARE THERE ANY OUTSTANDING CLAIMS WHICH YOU ARE AWARE OF BY PEOPLE WHO CLAIM TO HAVE HAD MONEY IN MR. SMYLER'S TRUCHTDTRUST ACCOUNT OTHER THAN THE CASE THAT MR. HERSH, REFERRED TO.
I'M UNAWARE ANY OF OTHER CLAIMS THAT IS THE WHOLE PURPOSE ASKING MR. SMILER TO PRODUCE TRUST ACCOUNT RECORDS RECORDS.
BUT NO CLAIMS HAVE BEEN MADE AGAINST -- SECURITY FUNDS --
I'M UNAWARE OF ANY THE WHOLE PURPOSE OF I HAVING MR. SMYLER PROU THE TRUST ACCOUNT RECORDS.
WHERE THERE IS AN EVIDENTIARY BASE THAT THE BASES THE HEARING BEFORE THE REFEREE WHICH THE REFEREE COULD PROPERLY CONCLUDE THAT THERE WAS WILLFUL NEGS,NESS OR INTENT HERE, AS YOU WOULD ACKNOWLEDGE, I ASSUME, THAT IF OFFICE THAT THERE IS A FIRE IN THE LAW OFFICE, AND THE RECORDS YOU KNOW, ALL OR PARTIALLY GOT BURNED, TOTALLY OUT OF THE CONTROL OF THE LAWYER, THAT THERE COULD BE NO FINDING OF -- OF WILLFULNESS, WHY AREN'T THE CIRCUMSTANCES HERE HE ESSENTIAL INADEQUATE TO ESTABLISH FINDING OF WILLFULNESS THAT IS IF I UNDERSTAND THE TESTIMONY IT IS THAT HE PUT THE STORAGE OF THE RECORDS IN THE HANDS OF AN EMPLOYEE, WHO IN TURN HIRED PERSONS TO TAKE THESE TO A STORAGE FACILITY AND THAT IT WAS THESE PERSONS WHO HE NEGLIGENTLY LOST A PORTION OF THE RECORDS SO HOW -- HOW CAN THAT POSSIBLY BE A BASIS FOR FINDING WILLFULNESS, WHICH IS WHICH IS REQUIRED IN THIS CONTEMPT FINDING.
YOUR HONOR I REMIND THE COURT THE REFEREE MADE HIS DECISION IN THIS CASE BASED ON A MOTION FOR JUDGMENT ON THE PLAELTINGS PLATINGS DO IN FACT ESTABLISH CLEAR AND CONVINCING EVIDENCE MR. SMYLER INTENTIONALLY VIOLATED THIS COURT'SED.
LET ME GET SEQUENCE ON THAT, BEFORE -- THE PETITION, TO DISCHARGE WAS SIGNED ON APRIL 15TH, AND THAT WAS AN AGREEMENT, TO PROVIDE THESE RECORDS WITHIN 90 DAYS.
CORRECT BY JULY 5TH -- 2005 --
JULY 5, 2005.
JULY A FIVE, THE MOVE DID NOT KOUR UNTIL SEPTEMBER 30TH.
THAT IS INCORRECT.
WHEN WAS THE MOVE.
BASED ON PLEADINGS SPECIFICALLY MR. SMYLER'S GOOD CAUSE SHOWING THERE IS A LETTER ATTACHED TO PLEADING WHERE HE STATES THAT HE MOVED IN JANUARY OF 2005, THREE MONTHS PRIOR TO THE TIME THE RESPONDENT EVEN FILED PETITION WITH THIS COURT, AT THAT TIME, AT THE TIME THE RESPONDENT SIGNED HIS PETITION, AND STATE THAT HE AGREED TO PRODUCE THE RECORDS TO THE THERE ARE BAR WITHIN NINETY DAYS RESPONDENT ALREADY NEW HE MOVED RESPONDENT NEW HIS RECORDS MAY HAVE BEEN LOST RESPONDENT DID NOTHING DURING THAT THREE-MONTH PERIOD PERIOD, IN ATTEMPT TO COMPLY WITH THE AGREEMENT THE AGREEMENT STAITDZ RESPONDENT HAD TILL JULY 5TH OF 2005.
HOW LONG PRIOR TO THE AGREEMENT IN APRIL OF 05 HAD BAR BEEN SEEKING THOSE RECORDS RECORDS?
YOUR HONOR A PENDING INVESTIGATION I'LL NOT AWARE OF THE STATUS THAT HAVE INVESTIGATION INVESTIGATION, BECAUSE, THE INVESTIGATION CONCLUDED, ONCE MR. SMYLER AGREED TO SUBMIT A PETITION IN THIS COURT.
LET ME ASK YOU A QUESTION ABOUT SANCTIONS THAT SHOULD BE IMPOSE HEARD 37. I'M NOT SURE THERE IS ANY PURPOSE PERMANENTLY DISBAR DISBARRING THE RESPOND FENT THE BAR'S REMEDY, CAN BE THAT UPON ANY KIND OF PETITION FOR REINSTATEMENT THAT THE BAR CAN SIMPLY DENY REINSTATEMENT, FOR FAILURE TO EVER PRODUCE THE RECORDS THAT HE AGREED TO PRODUCE WHEN HE AGREED TO THE RESIGNATION RESIGNATION. WHY WOULDN'T THAT BE AN ADEQUATE SANCTION THAT WOULD PROTECT THE PUBLIC PROTECT THE BAR, DISCOURAGE FAILURE TO PRODUCE DOCUMENTS HE AGREED TO PRODUCE OF A RESPECTLY THAT IS NOT SANCTION THE RESPONDENT IS NUGGET COURT'S FACE THE RESPONDENT MADE AGREEMENT WOULD HE PRODUCE RECORDS THE RESPONDENT FAILED TO DO SO RESPENT RESPONDENT INTEPGSLY FAILED TO DO SO --
WHAT IS EVIDENCE THAT HE INTENTIONALLY FAILED TO DO SO HE.
AS I STATED.
CLEARLY, LET'S TAKE THE EXTREMELY SCENARIO,THAT THERE WAS EVIDENCE THAT THE SECRETARY CAME IN, OR SOMETHING, AND SAID MR. JONES, CAME TO OFFICE, AND TOOK THE BOXES,{_ OF RECORDS RECORDS, AND THEY DISAPPEARED DISAPPEARED, AND PROBABLY INFER FROM THAT THAT UNDER THE}i CIRCUMSTANCES THAT -- INTENTIONAL -- WHERE IS THE EVIDENCE HERE HE INTENTIONALLY DESTROYED SOME OF THE RECORDS?
YOUR HONOR THE FLORIDA BAR IS NOT ALLEGINGING MR. SMYLER DESTROYED RECORDS THERE IS CLEAR CONVINCING EVIDENCE BECAUSE MR. SMYLER ARE ALREADY MOVED ALLEGEDLY LOST RECORDS PRIOR TO FILING A PETITION, RESPONDENT NEW HE COULD NOT COMPLY WITH THE AGREEMENT.
YOU ARE SAYING IS THAT THE AT THE TIME THAT HE SIGNED THE AGREED STROLL TARY RESIGN AND PRODUCE THESE RECORDS HE EITHER NEW OR HE SHOULD HAVE KNOWN AT THAT POINT WHETHER HE COULD ACTUALLY COMPLY WITH THAT AGREEMENT.
ABSOLUTELY YOUR HONOR.
THAT IS NOT THE CHARGE THOUGH IS IT I THOUGHT THE CHARGE WAS YOU HAD THE 90 DAYS OR WHATEVER AND HE HADN'T COME UP WITH A COMPLETE SET OF RECORDS WITHIN THAT PERIOD OF TIME.
THAT IS ABSOLUTELY CORRECT.
AND THEN THE EVIDENCE WAS THAT NOW THAT WE SEE WHAT HAPPENED WITH THE MOVEMENT OF THE RECORDS EVERYTHING IN THE STORAGE, THAT THEY ARE NOT ALL THERE. BUT I DIDN'T KNOW THAT THE CHARGE WAS BY THE BAR IN TRYING TO HOLD HIM IN CONTEMPT WAS THAT HE FRAUDULENT FRAUDULENTLY ENTERED INTO THIS AGREEMENT, KNOWING THAT HE DIDN'T HAVE THE RECORDS, AT THE TIME. SEE IF IS THAT WHAT THE CHARGE WAS.
NO YOUR HONOR.
YOU SEEM ASSERTING THAT IS WHAT THE CHARGE IS THAT HE FRAUDULENTLY REALLY ENTERED INTO THIS AGREEMENT WITH THE BAR KNOWING HE DIDN'T HAVE RECORDS THAT IN THE AGREEMENT HE BROOMSING TO PRODUCE. OBVIOUSLY THAT IS A VERY, VERY SERIOUS CHARGE. AND IS THAT WHAT THE BAR IS NOW ASSERTING? .
NO YOUR HONOR HOWEVER THAT IS COURT STATED WHO IN ORDER TO APPROVE INTENT UNLESS TELL YOU ADMISSION BY RESPONDENT COURT CAN LOOK AT CIRCUMSTANCES EVIDENCE.
WHY IS THE EVIDENCE THAT HE DID KNOW THAT THE AT THE TIME HE ENTERED INTO THIS AGREEMENT, IN OTHER WORDS, DETESTIFY I CHECKED ALL THIS OUT, EVEN BEFORE I ENTERED INTO THE AGREEMENT, AND FOUND OUT THAT I ONLY HAD HALF MY RECORDS? IS THERE SOMETHING LIKE THAT THERE
NO YOUR HONOR.
WHERE IS THE EVIDENCE, THEN THAT HE KNEW WHEN HE ENTERED INTO THE AGREEMENT, THAT HE DIDN'T HAVE THE RECORDS RECORDS?
THE EVIDENCE BASED ON MR. SMYLER'S GOOD CAUSE SHOWING THAT HE MOVED LOST HIS RECORDS JANUARY 2005, APRIL 2005 IS WHEN THE AGREEMENT WAS SIGNED, MR. SMYLER WAS REQUIRED TO PRODUCE THE RECORDS BY JULY 5, 2005, DURING THAT ENTIRE TIME PERIOD, RESPONDENT DID NOTHING, RESPONDENT MADE NO ATTEMPTS AS JIFS WELLS STATED TO OBTAIN BANK RECORDS FROM THE BANK --
LET ME ASK YOU ABOUT THE SANCTIONS I'M NOT SURE THAT WE COMPLETELY GOT YOUR ANSWER ON THAT. IF THE IF MR. SMYLER HAD BEEN ACCUSED OF TRUST ACCOUNT VIOLATIONS, AND IF THE BAR SHOWS THAT IN FACT HE TOOK MONEY FROM TRUST ACCOUNTS ACCOUNTS, DID NOT PAY HIS CLIENTS CLIENTS, FROM THOSE TRUST ACCOUNTS IN FACT KEPT THE MONEY HIMSELF, THE MOST THAT THE BAR COULD SANGS FOR IS -- SANCTION FOR IS DISBARMENT CORRECT.
CORRECT, YOUR HONOR.
SEEMS HERE IN FAILING TO PRODUCE DOCUMENTS, THAT MAY OR MAY NOT SHOW EVIDENCE TO MERIT DISBARMENT, YOU ARE SEEKING A GREATER SANCTION THAN WOULD HE RECEIVE IF HE HAD SIMPLY NOT KEPT THE TRUST ACCOUNTS.
YOUR HONOR IT IS FOR THE JUST MR. SMYLER NOT PRODUCING THE BANK RECORDS, RESPONDENT VIOLATING THIS COURT'S ORDER AS FLORIDA CASE LAW STATES.
I UNDERSTAND ALL, THAT I'M SAYING WHY DO WE GO FROMTH DISCIPLINARY RESIGNATION ALL THE WAY TO PERMANENT DISBARMENT, WITHOUT GOING THROUGH THE SANCTION OF SIMPLE DISBARMENT FIRST?
BECAUSE THAT IS COURT STAITSDZ IN HALE -- TANTAMOUNT TO DISBAR EMERGENT EMERGENT.
MR. SMOOIRL ALREADY, PER SE DISBARRED. SO IF THE ONLY REASON, THAT MR. SMYLER DOES NOT WANT TO STIPULATE TO FURTHER TYPE OF SANCTION SAYS FOR AS DISBARMENT BECAUSE HE WANTS THE DOESN'T WANT THE STIGMA STIGMA --
WOULDN'T THAT BE THEN A PROPER -- JUSTICE CANTERO TO CONVERT THIS SAY SPECIFICALLY THE COURT NOW -- REREJECTS -- FOUND THAT HE LOST HIS RIGHT TO HAVE A DISCIPLINARY RESIGNATION AND WE OFFICIAL OFFICIALLY DISBAR HIM WOULDN'T THAT BE REALLY THE -- THAT SORT OF A -- IN A WAY A GREATER SANCTION BECAUSE AGAIN WHEN BAR MEMBERS TRY TO GET TO DISCIPLINARY RESIGNATIONS WANT TO BE ABLE TO SAY THEY VOLUNTARILY DID IT WHAT WOULD BE WRONG WITH THAT.
THIS COURT OBVIOUSLY HAS DISCRETION IS TO DO THAT BASED ON CASE LAW, FLORIDA FLORIDA -- SANCTIONS, AS WELL AS AGGRAVATING FACTORS FOUND BY REFEREE.
IT IS VERY IMPORTANT TO ME I JUST WANT TO MAKE SURE YOU ARE NOT ALEGALINGING FRAUD ON THE COURT IN TERMS OF THE KNOWING MISREPRESENTATION BUT AS DISTURBS ME GREATLY, AND MR. SMYLER IS HERE PROBABLY THE BEST PERSON TO EXPLAIN THIS, NOT UNDER OATH HE ALREADY TESTIFIED UNDER OERT OERTTH IF HE MOVED THE BAR NEW HE MOVED IN JANUARY HE SIGNS THIS IN APRIL, THEN, WHAT IS THE RECORD ARE REVEAL AS THE FIRST TIME THAT BLAH SMYLER CLAIMS HE KNEW HE DIDN'T HAVE RECORDS.
OCTOBER 2005, WHEN RESPONDENT WRITES A LETTER TO THE FLORIDA BAR.
WASN'T UNTIL AFTER THE BAR MOVED TO HOLD HIM IN CONTEMPT THAT HE -- I MEAN IN OTHER WORDS HOW DID THAT SHOO HOOP ACTUALLY HAVE THE FLORIDA BAR DID NOT FILE PETITION TILL MARCH 2006, HOWEVER WHEN FLORIDA BAR RECOGNIZED MR. SMYLER HAD FAILED TO COMPLY WITH THIS COURT'S ORDER, AND AGREEMENTS PRODUCE BANK RECORDS RECORDS, PRIOR BAR -- COUNSEL CONTACTED MR. SMYLER TO FIND OUT WHAT THE STORY WAS, OCTOBER OF 2005, MR. SMYLER WROTE A LETTER TO THE FLORIDA BAR WHICH IS ATTACHED TO GOOD CAUSE SHOWING, STATE OFFING THAT HE CAN NOT PRODUCE THE BANK RECORDS BECAUSE HE HAD MOVED JANUARY 2005.
WHAT BOVRS ME HERE -- BOTHERS ME HERE IS THAT YOU KEEP SAYING, THAT THE CLEAR AND CONVINCING EVIDENCE, HOWEVER HOWEVER, AT THE WHEN THE MATTER WENT BEFORE THE REFEREE, THE BAR DIDN'T PUT ON ANY EVIDENCE, THE BAR -- RELIED UPON THE PLEADING, AND NORMALLY WHAT WE CONSIDER TO BE EVIDENCE IS TESTIMONY BEFORE THE REFEREE, AND NOW MR. SMYLER IS A UNDERSTAND HIS EXPLANATION IS THAT I MOVED INTENDED TO GIVE THESE RECORDS WHEN AND WHEN I WENT TO FIND THEM I FOUND THAT THEY WERE MISSING. AND NOW I UNDERSTAND THAT A -- AND I WOULD VIEW THIS SORT OF DOG EATS MY HOMEWORK DEFENSE TO BE CONVERTIBLE. BUT AS PRACTICAL MATTER AS JUSTICE CANTERO SAID WHY WOULD THE BAR BE INTERESTED IN PURSUING THIS TO THIS EXTENT WHEN THERE IS AT LEAST A QUESTION HERE, AS TO WHETHER THIS MAN NEW OR DIDN'T KNOW THAT HE THAT THE RECORDS WERE LOST, THERE HAVE BEEN NO CLAIMS, AND HE IS GOING TO HAVE TO BEAR A TREMENDOUS BURDEN IN ORDER TO EVER GET BACK INTO FLORIDA BAR, SEEMS TO ME THAT THIS KIND OF A -- A GREAT EXPENSE THE BAR IS GOING TO TO MR. SMYLER IS HAVING TO GO TO OVER SOMETHING THAT REALLY DOESN'T PROVIDE THE COURT WITH ANYTHING THAT IS HELPFUL IN THE DISCIPLINARY PROCESS.
WITH ALL DUE RESPECT YOUR HONOR THIS COURT ISSUED AN ORDER MR. SMYLER VIOLATED THAT ORDER THE WHOLE PURPOSE OF --
WITH THERE IS NO THE FIND BIG THE REFEREE HE INTENTIONALLY DID IT THE REFEREE REFERS TO A -- BAD FAITH RULE BUT THE REFEREE DOESN'T MAKE A FINDING THAT MR. SMYLER INTENTIONALLY EITHER SIGNED THIS AGREEMENT, KNOWING THAT HE DIDN'T HAVE THE RECORDS, OR THAT HE INTENTIONALLY, HAD THE RECORDS AND HE DIDN'T TURN THEM OVER, REFEREE DIDN'T MAKE THAT FINDING THERE, WASN'T ANY TOEFD THAT IF A BEING.
RESPECTFULLY YOUR HONOR BASED ON PLEADINGS REFEREE DID MAKE THE FINDING THERE WAS INTENTIONAL VIOLATION AS STAITSDZ PART OF THE REASON IS BECAUSE MR. SMYLER NEW PRIOR TO HIM SIGNING THE PETITION, THAT -- HAD TO PRODUCE RECORDS AFTER PETITION SIGNED RESPONDENT DID NOTHING INTENTION TO COMPLOOI WITH THE ORDER AS JUSTICE ANSTEAD SUGGESTED BY RESPONDENT RELYING UPON THIRD PARTY KNOWING THIS COURT ORDERED HIM TO COMPLY, KNOWING THISCOURT ORDER HIM TOED PRODUCE BANK RECORDS THAT THERE WAS ORDER OUT THERE THERE, BY THIS RESPONDENT LYING ONE RELYING ON THIRD PARTY THIS COURT HAS NO JURISDICTION OVER THAT THIRD PARTY --
LET'S GO BACK TO THE WHAT MR. SMYLER SAID HE SAID THAT HE -- HAD ALREADY PROVIDED THE THERE AREBA IS THAT CORRECT?
PARTIALLY, YOUR HONOR.
PARTIALLY CORRECT.
THE AUDIT WAS NOT COMPLETED.
IS THAT IN, AGAIN, IT SAYS, IN MR. SMYLER'S BRIEF HE ASSERTS THAT. SO, IS THERE IN THIS RECORD, CONTRARY, CONTRARY TESTIMONY THAT HE HADN'T PROVIDED ALL THE RECORDS IT REQUESTED FOR USE IN INVESTIGATING THE ORIGINAL COMPLAINT?
NO, YOUR HONOR.
THERE ISN'T ANYTHING?
THERE IS NO EVIDENCE IN THE RECORD THAT IS BEFORE THIS COURT AS FAR AS WHAT MR. SMYLER PRODUCED PRIOR.
AND WHAT DOES THIS RECORD REVEAL, AGAIN? THIS IS AM I TO UNDERSTAND THIS IS STANDARD CONDITION THAT IS PUT IN PETITIONS FOR DISCIPLINARY RESIGNATION. IS THAT CORRECT?
CORRECT, JUDGE.
IT WASN'T ABOUT THE ORIGINAL COMPLAINT WAS TRUST ACCOUNT VIOLATION. EVEN IF THIS HAD BEEN A FELONY CONVICTION FOR DRUGS, IT WOULD HAVE BEEN IN THERE, THAT THEY COULD LOOK AT THE, THEY WANT THE TRUST ACCOUNT RECORDS?
THAT IS CORRECT.
SO IT DOESN'T REALLY RELATE TO THE ORIGINAL COMPLAINT. HOW MUCH MONEY DID MR. SMYLER, WHAT'S THE RECORD REVEAL AS TO HOW MUCH MONEY WAS INVOLVED IN THE ORIGINAL COMPLAINT?
THE RECORD DOES NOT REVEAL ANY OF THAT. THERE ARE NO FACTORS IN THE RECORD AS FAR AS HOW MUCH MONEY WAS INVOLVED IN THE UNDERLYING COMPLAINT.
OKAY. YOU'VE USED UP ALL YOUR TIME. PLEASE WRAP UP.
CAN I ASK ONE QUESTION?
YES.
IS THERE, ON THIS RECORD, CAN WE TELL IF THERE IS MONEY IN A TRUST ACCOUNT, OR SOMEWHERE THAT, THAT MR. SMYLER HAS THAT THE BAR IS TRYING TO, DETERMINE WHO THAT MONEY BELONGS TO?
NOT IN THIS RECORD, YOUR HONOR. BASED ON MR. SMYLER'S RESPONSE HE STATED HE LOST ALL THESE RECORDS. ALTHOUGH --
JUST BECAUSE YOU LOST YOUR RECORDS DOESN'T MEAN YOU LOST YOUR BANK ACCOUNT. IF THE BAR DOESN'T HAVE ANY KIND OF STAY OR WHATEVER YOU CALL IT, ON A, BANK ACCOUNT, THAT BELONGS TO HIM?
THIS COURT'S ORDER, GRANTING THAT THIS RESIGNATION, BASICALLY FROZE ALL OF THESE FUNDS TRUST ACCOUNTS. WITHOUT HIM INFORMING THE FLORIDA BAR WHAT THOSE TRUST ACCOUNTS ARE, OR PRODUCING ANY OF THOSE BANK RECORDS WE OBVIOUSLY DON'T KNOW THE STATUS OF THAT.
THANK YOU.
THANK YOU YOUR HONORs.
REBUTTAL.
SINCE I SAT DOWN, I WOULD LIKE TO CORRECT ABOUT THE AMOUNT OF THE BEGLEY MATTER. WAS AROUND $25,000. TREBELLED AND THEN SOME PREJUDGMENT INTEREST THAT BROUGHT IT UP TO THE FIGURE THAT MENTIONED. WITH REGARD TO THAT.
AGAIN, THERE IS NO QUESTION THAT A $25,000 --
STILL SUBSTANTIAL.
IT'S SUBSTANTIAL .
WOULD HAVE WARRANTED DISBARMENT. NOT TRYING TO WORK OUT A DEAL ON THIS TO ALLOW THE DISCIPLINARY --
MY MEMORY --
IS THERE A CLAIM ALL OF THE RECORDS WERE PRODUCED RELATING TO THAT ACCOUNT?
NOT ONLY, TO MY KNOWLEDGE WERE THEY PRODUCED, THE BAR AUDITOR UNDER SUBPOENA, WHICH I THOUGHT, I OBJECTED TO BECAUSE I DON'T KNOW THAT ADMISSIBLE IN A CIVIL MATTER, BUT THE JUDGE RULED THAT IT WAS. AND THE BAR AUDITOR TESTIFIED FROM HIS RECORDS, FROM THE TRUST RECORDS, OF MR. SMYLER, BECAUSE THEY HAD THE TRUST ACCOUNTS. THEY KNEW THE BANKS. THEY KNEW EVERYTHING. THEY HAD THE --
IS IT TRUE THAT, THE RECORDS WERE ALLEGEDLY LOST OR THE MOVE WAS IN JANUARY, AND MR. SMYLER, FILED IN, IN APRIL?
NOT EXACTLY. HE STARTED TO MOVE. HE DOWNSIZED IN JANUARY. THAT IS CORRECT. HE MADE TWO MOVES TO SMALLER OFFICES. THE RECORDS THAT I'M TALKING ABOUT WERE LOST AFTER APRIL 15th AND BETWEEN APRIL AND JULY OF '05, WAS THE LAST MOVE.
IS THAT IN THE RECORD?
NO. BUT YOU ASKED HIM TO BE HERE. THIS WAS --
JUDGMENT ON A PLEADING CORRECT?
SORRY?
THIS REFEREE'S REPORT WAS A JUDGMENT ON THE PLEADINGS?.
THAT IS CORRECT.
SO THERE IS NO EVIDENTIARY --
NO EVIDENCE.
NO TESTIMONY.
HAVE YOU ASKED FOR THAT TO BE REVERSED, JUDGMENT FOR PLEADING AND GONE BACK TO EVIDENTIARY HEARING?
I'M SORRY, I DIDN'T HEAR THE FIRST PART OF THE QUESTION.
HAVE YOU THOUGHT HAVE THE JUDGEMENT ON PLEADINGS REVERSED LET THIS GO BACK AND WE CAN GET THE FACTS.
I HAVEN'T CONSIDERED, THE ANSWER IS NO. I HAVEN'T SAUT THAT. I LIKE TO POINT OUT --
TO ME IT'S TROUBLING. PRESUME HE HAD AGREED TO AN WAS REQUIRED TO PAY $1,000. DIDN'T PAY WITHIN A CERTAIN PERIOD OF TIME. IS IT NOT CUSTOMARY THAW PRESUME THEY HAD THE ABILITY TO PAY AND IT BOB HIS OBLIGATION TO PROVEN ABILITY TO PAY?
LIKEWISE IN THIS CASE WOULDN'T YOU PRESUME IT WAS, AFFIRMATIVE OBLIGATION TO PROVIDE THE RECORD, AND IF HE DIDN'T, IT WOULD BE HIS BURDEN TO PROVE WHY? AS OPPOSED TO BAR. HAVING TO PROVE WILLFUL INTENT?
I THINK THE BURDEN, AT THIS, AT THE REFEREE'S HEARING, WAS, UPON, MR. SMYLER. I THINK THE TESTIMONY THAT HE PRESENTED, CLEARLY, OBVIATED WILLFULNESS OR A CONTEMPT. IN FACT, I THINK, IN FACT THE ORDER FROM THE REFEREE FINDS, ONLY, IF I MAY, I'M LOOKING AT PAGE 5 AND 6 OF THE REFEREE'S RECOMMENDATION, IT SAYS, AGGRAVATING FACTORS. IT SAYS, THERE WAS AN ADMONISHMENT IN 2002. THEN THE SECOND THING WAS THIS VOLUNTARY RESIGNATION WHICH THE BAR ITSELF IN ITS BRIEF HAS ADMITTED THAT IS NOT AGGRAVATING FACTOR. YOU HAVE ONE WHICH IS HIS ADMONISHMENT. THEN IT TALKS, IT CITES TWO RULES WHICH ARE NOT ANY FINDINGS ON. THEN THE MITIGATING FACTORS AS PHYSICAL AND MENTAL DISABILITY.
REALITY WITHOUT A CREDIBILITY DETERMINATION BY THE REFEREE IT'S HARD FOR US TO REALLY KNOW WHO IS TELLING THE TRUTH?
I THINK --
WHETHER THERE WAS WILLFUL OR NOT?
THE UNCONTROVERTED TESTIMONY THAT HE WAS ILL. THAT HE DIDN'T, THAT HE DID EVERYTHING HE COULD. HE WENT BACK A SECOND TIME TO SEARCH THE WAREHOUSE IN SPITE OF HIS ILLNESS. IT'S UNCON VERY TRERT -- UNCONTROVERTED.
IS THAT SOMETHING THAT THE REF FEAR -- REFEREE FOUND BASED ON PLEADINGS BEFORE HIM?
THERE IS NO FINDING OF THAT.
AS A AGGRAVATING FACTOR HE SAID THERE WAS A BAD FAITH OBSTRUCTION OF THE DISCIPLINARY PROCESS. IS THAT BASED ON THE PLEADINGS HERE?
THE PLEADINGS, SAY THAT THAT, HE IS IN CONTEMPT BY INTENTIONALLY FAILING TO PRODUCE THE RECORDS BUT, THE TESTIMONY, AND THE HEARING, THAT'S WHY YOU GO TO A HEARING, AND THE EVIDENCE --
DO YOU HAVE AN ANSWER TO MY QUESTION WHEN YOU CAME BACK ON REBUTTAL?
THE ANSWER IS I DON'T HAVE A FIRM ANSWER BECAUSE I NEED THE COUNSEL WITH HIM BUT I DID CONSULT HIM BRIEFLY.
MR. HERSH. I THINK YOUR TIME IS UP.
I WANT TO SUMMARIZE FOR THE THREE REASONS WE DID SUBMIT THE FACT THAT IS THAT THE RELIEF IS, BEING APPLIED, RETROACTIVELY FOR SUBSTANTIALLY CREATED RULE, THAT OF DOING AWAY WITH THE, RIGHT TO RESIGN. THE FACT THAT THERE WAS NO CLEAR SHOWING OF WILLFULNESS AND IN FACT, AT MOST IT SHOWS HE WAS NEGLIGENT IN FAILING TO SUPERVISE THE WORKERS ENOUGH. AND LASTLY, THAT THE, REMEDY ITSELF IS UNDULY HARSH AND INAPPROPRIATE FOR ALL THESE REASONS, THE MATTER SHOULD BE REVERSED. THANK YOU.
THANK YOU, SIR. THANK YOU, COUNSEL. COURT WILL STAND IN RECESS.