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.
Florida Board of Bar Examiners v. Allan Barry Marks
SC06-524
WE'RE GOING TO MOVE TO OUR
THIRD CASE ON THE CALENDAR
THIS MORNING, AND PASS OVER
THE SECOND CASE FOR THE TIME
BEING.
SO OUR NEXT CASE WILL BE THE
FLORIDA BOARD OF BAR
EXAMINERS v. ALLAN BARRY
MARKS.
MR. BLYTHE, YOU GOING TO
START OFF?
>> MAY IT PLEASE THE COURT.
I'M DEPUTY GENERAL COUNSEL
OF THE FLORIDA BAR EXAMINERS
AND I AM HERE THIS MORNING
ARGUING TO SUPPORT THE
BOARD'S RECOMMENDATION THAT
ALLAN MARKS BE READMITTED TO
THE FLORIDA BAR.
THIS CASE IS IN FRONT OF THE
COURT IN A SOMEWHAT UNUSUAL
POSTURE.
THE ABKNT RESIGNED FROM THE
FLORIDA BAR ALMOST 17 YEARS
AGO.
HE APPLIES FOR READMISSION
AND WENT TO A FORMAL HEARING
BEFORE THE BOARD IN OCTOBER
OF 1998.
AFTER THAT, FORMAL HEARING,
THE BOARD RECOMMENDED THAT
HIS ADMISSION BE DENIED.
THE APPLICANT DID NOT
PETITION THIS COURT TO
REVIEW THE BOARD'S DECISION,
SO THE BOARD'S
RECOMMENDATION WAS THE FINAL
ACTION IN THAT CASE.
>> MR. BLYTHE, THAT IS THE
CASE.
>> WE HAVE GOT A FULL
PROCEDURAL HISTORY.
WE HAVE DONE THIS ON
MULTIPLE OCCASIONS.
IF YOU WOULD, PLEASE DIRECT
YOUR ATTENTION WITH REGARD
TO THE OUTSTANDING
OBLIGATIONS WITH REGARD TO
THE INTERNAL REVENUE
SERVICE.
IT APPEARS FROM EVERYTHING
THAT'S FILED, EVEN TO THIS
POINT AS WELL, THAT THERE
WAS AN INTENTIONAL FAILURE
TO IMPLY -- COMPLY WITH THE
LAWS OF THE UNITED STATES IN
THE FILING OF TAX RETURNS,
AND THAT CONTINUED RIGHT UP
UNTIL VERY RECENTLY, AND
THAT MATTER IS STILL
OUTSTANDING AND SO THE
POSITION IT WOULD SEEM IS
THAT THE BOARD OF BAR
EXAMINERS AS A, AS AN AGENCY
OR ARM OF THE FLORIDA
SUPREME COURT WOULD HAVE
LAWYERS PRACTICING ADMITTED
TO THE BAR THAT HAVE
INTENTIONALLY REFUSED TO
FILE INCOME TAX RETURNS, AND
IT CONTINUES WITH REGARD TO
THE OUTSTANDING
RESPONSIBILITIES OF THE DATE
WE ARE SAYING THEY SHOULD BE
MEMBERS OF THE BAR CONTRARY
TO THE LAW OF THE UNITED
STATES.
I THINK THAT'S REALLY WHERE
YOU NEED TO ADDRESS SOME OF
THE ATTENTION THIS MORNING.
>> YES, SIR.
THE ISSUE OF THE NONPAYMENT
OF TAXES CERTAINLY WAS ONE
OF THE THINGS THAT LED THE
BOARD TO DENY OR RECOMMEND
DENIAL OF THE ADMISSION
AFTER THE FIRST FORMAL
HEARING.
SUBSEQUENT TO THE HEARING,
THE BOARD -- THE APPLICANT
HAS TAKEN STEPS TO TRY, TO
TRY TO BRING HIS OBLIGATION
TO THE IRS INTO COMPLIANCE
WITH THE LAW.
THERE WERE CIRCUMSTANCES
WHERE HE FAILED TO TIMELY
PAY TAXES AFTER THAT FIRST
FORMAL HEARING, BUT HE
PROVIDED AN EXPLANATION AT
THE SECOND FORMAL HEARING AS
TO THE CIRCUMSTANCES --
>> BUT THAT -- LET'S JUST GO
BACK TO THIS, BECAUSE THIS
IS WHAT REALLY DISTURBS ME
ABOUT THIS IS THAT HE WAS --
HE RESIGNED AND WOULD'VE
BEEN DISBARRED BECAUSE OF
THE MOST SERIOUS, SERIOUS OF
TRUST ACCOUNT VIOLATIONS
CHARGED WITH THEFT.
AFTER HE'S OUT OF THE BAR,
IT'S THAT PERIOD OF TIME
THAT HE WILLFULLY CHOOSES
NOT TO PAY INCOME TAX, AND
THE REASON GIVEN IS THAT HE
MADE A CHOICE TO EDUCATE HIS
CHILDREN, AND I WAS READING
THE CROSS EXAMINATION BY ONE
OF THE MEMBERS OF THE BOARD
OF BAR EXAMINERS, I MEAN, IF
MY CHILD WANTS TO GO TO
HARVARD I CAN'T AFFORD IT, I
JUST DON'T PAY MY TAXES.
HOW DID THE BOARD DECIDE
THAT THAT EXCUSE, THAT IS,
I'M GOING TO EDUCATE MY
CHILDREN INSTEAD OF PAYING
TAXES, WAS A EXTENUATING
CIRCUMSTANCE?
>> I WOULD SUBMIT THAT THE
BOARD DIDN'T ACCEPT THAT AS
AN EXTENUATING CIRCUMSTANCE
AT THE FIRST FORMAL HEARING
AND THAT'S PARD PART OF WHAT
LED TO THE BOARD'S INITIAL
RECOMMENDATION THAT HE BE
DENIED.
AT THE SECOND FORMAL HEARING&AND
THE RECOMMENDATION OF THE
BOARD BEFORE THE COURT THIS
MORNING, THE BOARD WAS
LOOKING AT WHAT THE
APPLICANT HAD DONE
SUBSEQUENT TO THAT FORMAL
HEARING TO TRY TO DEAL WITH
AMONG OTHER THINGS HIS
OBLIGATION TO THE INTERNAL
REVENUE SERVICE.
>> BEIT SEEMS TO ME AFTER
THAT TIME IS WHEN HE HAD
BEEN MAKING PAYMENTS ON A
PAYMENT PLAN.
THEN HE STOPPED MAKING THOSE
PAYMENTS AND SO HOW DOES
THAT DEMONSTRATE THAT HE'S
MORE FINANCIALLY RESPONSIBLE
THAN HE WAS BEFORE?
WHEN HE WAS MAKING PAYMENTS?
>> THE TESTIMONY AT THE
FORMAL HEARING WAS THAT HE
STOPPED MAKING THOSE
PAYMENTS BECAUSE ON THE
RECOMMENDATION OF AN AGENT
FROM THE INTERNAL REVENUE
SERVICE WHO SUGGESTED TO HIM
THAT HE MAKE AN OFFER AND
COMPROMISE BECAUSE THE
PAYMENTS HE WAS MAKING WAS
AS I UNDERSTAND -- AS I
RECALL THE TESTIMONY, WAS
BEARICALLY COVERING THE
INTEREST AND PENALTIES AND
HE WAS MAKING NO PROGRESS AS
FAR AS THE PAYMENT ON, ON
THE, ON THE PRINCIPAL.
>> AND THEY DENIED THAT AND
THEN WHAT?
THEY DENIED HIS OFFER AND
COMPROMISE, RIGHT?
>> YES, MA'AM.
>> SO WHAT THEN DOES HE DO?
>> THE RECORD INDICATES THEN
A SECOND OFFER AND
COMPROMISE WAS MADE -- THERE
WAS SOME --
>> FOR EVEN LESS?
>> YES, MA'AM AND THERE WAS
SOME CONFUSION AS TO WHETHER
THAT WOULD BE ACCEPTED.
ACCORDING TO THE RECORD WE
HAVE BEFORE THE COURT NOW,
THE STATUS, HIS STATUS WITH
THE INTERNAL REVENUE SERVICE
IS THEY'RE BASICALLY WAITING
TO SEE WHETHER HE'S
READMITTED TO THE BAR
BECAUSE THAT WILL INFLUENCE
THEIR DECISION AS TO HOW
MUCH THEY ARE WILLING TO
ACCEPT IN AN OFFER OF
COMPROMISE.
>> HOW MUCH WERE THE
PAYMENTS THAT WERE BEING
MADE?
>> I DO NOT RECALL THE EXACT
AMOUNT, YOUR HONOR?
>> HOW WAS THE AMOUNT OF
PAYMENT DETERMINED?
WAS IT BY MUTUAL AGREEMENT
OR WAS IT JUST MR. MARKS
SAYING I'LL PAY THIS MUCH.
>> IT'S MY UNDERSTANDING
THAT IT WAS AN AMOUNT
ACCEPTING TO THE IRS AT THE
TIME, AND THEN HE WAS
APPROACHED BY AN AGENT FROM
THE IRS WHO, I GUESS TOOK
OVER HIS FILE AND THAT AGENT
SUGGESTED YOU KNOW YOU ARE
NOT MAKING ANY PROGRESS
TOWARDS THIS --
>> I AGREE IT MAY HAVE BEEN
ACCEPTABLE, BUT, YOU KNOW,
IRS ISN'T GOING TO CARE IF
IT NEVER GETS PAID OFF AS
LONG AS IT'S GETTING PAID
BECAUSE THEY ARE BASICALLY
EARNING INTEREST ON THE
MONEY -- MONEY.
SO HOW WAS IT UNDERSTOOD
THAT THIS PAYMENT WAS
REASONABLE IN THE LIGHT OF
THE CHOOSING TO EDUCATE A
CHILD AT THE EXPENSE OF THE
UNIVERSITY AS OPPOSED TO
PAYING YOUR TAX OBLIGATION?
>> I GUESS WHAT I WOULD
SUGGEST IS THOSE ARE KIND OF
TWO DIFFERENT, TWO DIFFERENT
ISSUES.
THE ISSUE OF CHOOSING NOT TO
PAY THE TAXES IN ORDER TO
EDUCATE YOUR CHILDREN GOES
TO THE, THE MISCONDUCT THAT
LED TO THE BOARD'S INITIAL
RECOMMENDATION.
NOW HE'S GOT THAT DEBT TO
THE IRS.
HE'S GOT TO DEAL WITH IT
BASED ON HIS FINANCIAL
CIRCUMSTANCES AT THE TIME,
AND THAT WAS -- THAT WAS
WHAT THE IRS DETERMINED
WOULD BE THE, THE
APPROPRIATE PAYMENT SCHEDULE
AS OPPOSED TO WHAT CAUSED
HIM TO NOT PAY THE TAXES IN
THE FIRST INSTANCE.
>> WHEN DID THE CHILD
GRADUATE FROM --
>> I KNOW THE OLDER CHILD
GRADUATED, I BELIEVE, IT WAS
IN THE MID TO LATE 90s, AND
THEN HIS YOUNGER CHILD I
BELIEVE WAS IN THE EARLY
2000s.
AND CERTAINLY THERE WERE
INDICATIONS THAT THE
NONPAYMENT OF TAXES
CONTINUED BEYOND THE POINT
OF THESE CHILDREN GRADUATING
FROM COLLEGE.
BUT, AGAIN, I GO BACK TO THE
-- THE BOARD'S
RECOMMENDATION THAT'S BEFORE
THE COURT NOW HAS TO DO WITH
WHAT THE APPLICANT HAS DONE
SUBSEQUENT TO HIS LAST
FORMAL HEARING TO TRY TO
DEAL WITH THIS STATUS AS --
DEAL WITH HIS DEBT AS
OPPOSED NOT TO DIMINISH NOT
PAYING THE TAXES IN THE
FIRST PLACE.
>> SO OTHER THAN COMMUNITY
SERVICE HOURS, WHAT HAS BEEN
DONE IN.
>> ON THE ISSUE OF THE IRS,
HE'S BEEN IN CONSTANT
COMMUNICATION, THE UNPAID
TAXES, HE'S BEEN IN CONSTANT
COMMUNICATION WITH THE
INTERNAL REVENUE SERVICE.
HE'S BEEN TRYING TO DEAL
WITH THEM TO TRY 32 COME UP
WITH SOME SORT OF A
SETTLEMENT CONSIDERING HIS
FINANCIAL SITUATION.
AND, AND ACCORDING TO HIS
RESPONSE BRIEF, APPARENTLY,
THE IRS IS NOW IN A POSITION
WHERE THEY ARE GOING TO WAIT
AND SEE WHETHER HE GETS
READMITTED TO THE BAR BEFORE
DECIDING WHETHER TO ACCEPT A
PARTICULAR OFFER AND
COMPROMISE.
>> HOW WAS THAT EVIDENCE?
FROM THE IRS?
DID THE AGENT TESTIFY?
WAS THERE ANY LETTERS FROM
THE IRS OR ANYTHING?
>> NO, SIR.
IT WAS BY THE APPLICANT'S
TESTIMONY.
>> JUST AS WELL.
>> IN THAT PROBLEM IS THAT
THE BOARD'S COMING HERE WITH
WHAT APPEARS TO ME TO BE
KIND OF A PARTIAL RECORD.
AT LEAST I WANT TO KNOW, I
WANT TO KNOW WHAT FROM THE
GOVERNMENT'S STANDPOINT AND
FROM THE APPLICANT'S
STANDPOINT THE APPLICANT HAS
DONE OF RECORD IN RESPECT TO
THE IRS FROM THE DATE THAT
HE WAS SUSPENDED UP UNTIL
TODAY.
AND WHETHER HE'S FILED HIS
RETURN, WHAT DAY -- WHAT THE
IRS'S POSITION IS AND WHAT
HIS POSITION IS.
AND IT SEEMS TEE ME, THAT'S
SOMETHING THAT WE CAN'T
DEPEND UPON AN APPLICANT
THAT WE DISBARRED FOR THESE
CHARGES OR WHO TANTAMOUNT TO
DISBARMENT, I DON'T THINK
THE BOARD CAN, CAN REST ON
THAT.
>> YOUR HONOR, I MEAN, SOME
OF THE EARLY DEALINGS WITH
THE IRS ARE DOCUMENTED IN
THE RECORD.
BUT, YOU KNOW, THE --
>> I'M CONCERNED ABOUT THE
MORE, ABOUT THE FACT THAT
THIS HAS GONE ON POST-THAT
PERIOD.
THAT'S MY CONCERN.
>> YES, SIR, AND I MEAN
CERTAINLY, IT'S A SITUATION
WHERE IF, IF THE COURT FEELS
THAT THERE'S AN INADEQUATE
RECORD, TO DECIDE ON THE
BOARD'S RECOMMENDATIONS,
CERTAINLY, YOU KNOW, IT'S
WITHIN THE COURT'S PURVIEW
TO REMAND THE CASE BACK --
>> DOES HE HAVE OTHER
SUBSTANTIAL FINANCIAL
OBLIGATIONS THAT HAVE NOT
BEEN RESOLVED?
>> THE ONLY OTHER OBLIGATION
THAT'S DOCUMENTED IN THE
RECORD, YOUR HONOR, IS A, A
DEBT THAT I BELIEVE WAS
$90,000 TO A TRUST ACCOUNT.
THE APPLICANT HAS EXECUTED A
PROMISSORY NOTE THAT'S
ACCEPTABLE TO THE TRUSTEES
OF THE TRUST ACCOUNT THAT
INDICATES THAT HE WILL BEGIN
MAKING PAYMENTS.
HE'S OBLIGATED TO MAKE
PAYMENTS ON THAT, ON THAT
DEBT UPON HIS ADMISSION TO
THE BAR.
>> WELL, IT'S STRANGE TO SAY
THAT -- I MEAN IT'S STRANGE
BECAUSE I'M LOOKING AT THE
SCHEDULE.
HE, YOU KNOW, THIS
BANKRUPTCY THAT WAS FILED IN
1997, AND THERE'S ALMOST A
HALF A MILLION DOLLARS IN
DEBT.
90,000 IS ONE, BUT THERE IS
A PERSONAL LOAN THAT WAS
REDUCED JUDGMENT MYRON MARKS
OF $83,000, AN UNSECURED
PERSONAL LOAN FROM UNITED
NATIONAL BANK FOR 75,000,
THEN HE SAYS HE PAID THE
$671 TO CON AND GUTTER.
THERE IS A -- SO WERE THERE
THESE OTHERS IN BANKRUPTCY?
SO IN OTHER WORDS, THOSE
WERE SOME OF THESE CAME
ABOUT IN THE EARLY -- IN THE
SAME PERIOD OF TIME THAT HE
WAS DISBARRED.
SO WHAT'S THE STATUS OF ALL
THOSE --
>> THERE ARE SOME DEBTS THAT
WERE DISCHARGED IN THE
BANKRUPTCY THAT HAVE BEEN
PAID OFF ACCORDING TO THE
RECORD.
THE RECORD IS NOT CLEAR THAT
ALL OF THE DEBTS THAT WERE
DISCHARGED TO THE BANKRUPTCY
HAVE BEEN PAID OFF.
>> AND THAT'S TO ME, THAT'S
ANOTHER ISSUE THAT THESE
WERE -- THIS WAS PART OF
WHAT HAPPENED BECAUSE HE WAS
ABUSING HIS POSITION AS A
LAWYER.
HE WAS LIVING BEYOND HIS
MEANS.
AND IN ORDER TO THEN WHAT
DOES HE DO?
SUBSEQUENTLY?
HE DISCHARGES DEBTS IN
BANKRUPTCY AND HE DOESN'T
PAY HIS INCOME TAX RETURNS.
YEN MEAN, I DON'T SEE HOW --
YOU BE, NORMALLY WE HAVE
SOMEBODY THAT MIGHT DO ONE
KIND OF ACTION OR ANOTHER,
BUT I DON'T KNOW WHAT THE
MESSAGE IS TO THE LAWYERS
AND THE PEOPLE OF FLORIDA TO
ADMIT SOMEBODY WITH THIS
TYPE OF OUTSTANDING
FINANCIAL SITUATION.
>> I MEAN, CERTAINLY I'M NOT
HERE TRYING TO ARGUE THAT
THOSE AREN'T SIGNIFICANT
CONCERNS.
AND I THINK IF YOU LOOK AT
THE, AT THE WAY THAT THE
BOARD HAS DEALT WITH THIS
CASE, THEY CERTAINLY HAVEN'T
RUSHED, RUSHED THE JUDGMENT
TO DECIDE TO ADMIT THE
APPLICANT, READMIT THE
APPLICANT, AND THOSE WERE
CERTAINLY CONCERNS THAT WERE
REFLECTED IN THE BOARD'S
FINDINGS OF FACT AFTER THE
FIRST FORMALLING.
THE BOARD IN THE SECOND
FARMING HEARING AFTER
LISTENING TO THE APPLICANT'S
TESTIMONY ABOUT WHAT HE HAD
DONE TO TRY TO DEAL WITH ALL
OF THESE DEBTS THAT HE HAD,
DETERMINED THAT HE HAD MADE
-- HE HAD BEEN RESPONSIBLE
IN TRYING TO DEAL WITH THESE
--
>> WELL SUBSTANTIVELY THOUGH,
AS YOU HAVE OUTLIBED IT, HE
HASN'T DONE ANYTHING, HAS
HE?
IN OTHER WORDS, YOU SAID,
WHICH APPEARS TO BE ALMOST
SHOCKING, THAT THE WAY HE'S
RESOLVED THE $90,000 DEBT
OWED TO THE TRUSTEE IS BY
MAKING AN AGLAEMENT THAT IF
I GET READMITTED TO THE BAR,
I'LL REPAY YOU.
IS THAT CORRECT?
>> YES, YOUR HONOR --
>> AND IS THAT PRETTY MUCH
THE SAME PICTURE WITH THE
IRS?
>> WELL, WITH THE IRS --
>> WAIT AND SEE WHETHER HE
GETS READMITTED TO THE BAR
BEFORE DEALING WITH HIM ON
THE REPAYMENT OF THESE --
>>.
COULD YOU GIVE OSTHUMBNAIL
SKETCH OF HIS FINANCIAL
PICTURE INN INSO' FAR AS HIS
INCOMES AND ASSETS.
WHAT ARE HIS ASSETS AS OF
THE TIME OF THE LAST
HEARING?
>> MY UNDERSTANDING OR MY
RECOLLECTION FROM THE RECORD
IS THAT THAT, AS FAR AS, YOU
KNOW --
>> DOES HE HAVE A RESIDENCE?
HOORENTS A RESIDENCE.
I BELIEVE OWNS A COUPLE OF
PARS.
BASICALLY, HIS ASSETS ARE,
ARE NOT PARTICULARLY
SIGNIFICANT.
>> HOW ABOUT THE INCOME PICK
THRTURE?
-- PICTURE?
>> HE'S WORKING FOR A LAW
FIRM 3D WITH YOU ADD THAT
INTO JUSTICE ANSTEAD -- IN
YOUR ANSWER, PLEASE.
>> YES, SIR, CERTAINLY,
THERE WERE SEVERAL YEARS
WHERE THE, THE COMBINED
INCOME OF THE APPLICANT AND
HIS, AND HIS WIFE WELL
EXCEEDED $100,000 A YEAR.
TO BE PERFECTLY HONEST WITH
YOU, I DON'T KNOW WHAT HIS
PRESENT FINANCIAL SITUATION
IS.
YOU KNOW, AS WE STAND HERE
TODAY BECAUSE, KROUN HIS JOB
SITUATION CHANGED AND THERE
WAS A, A JOB THAT HE HAD
WHERE HE GOT SIGNIFICANT
INCOME THAT HE, THAT HE LOST
THAT EMPLOEMENTPLOYMENT, AND
I DON'T KNOW WHAT THE, YOU
KNOW, WHAT HE --
>> SO WHAT'S THE WORK
HISTORY BEEN?
HOW MANY HOURS A WEEK.
I MEAN A LOT OF PEOPLE IN
THIS SITUATION, MILLIONS
ACROSS THIS COUNTRY TAKE TWO
JOBS AND THEY ARE WORKING
60s, 70 HOURS A WEEK TO GET
OVER THE HUMP THAT THEY WERE
CAUSE BIDE THEIR ACTIONS.
HOW -- WHAT EVIDENCE DO WE
HAVE IN THIS RECORD THAT
THIS MAN DID THAT?
>> CERTAINLY THERE WAS --
THERE IS EVIDENCE THAT THE
AFTER HE RESIGNED FROM THE
BAR, HE BEGAN WORKING AS A
LAW CLERK FOR ONE ATTORNEY.
WAS APPROACHED BY ANOTHER
LAW FIRM TO HELP THEM.
SET UP A PROBATE DIVISION IN
THEIR LAW FIRM SO HE WORKED
THOSE TWO JOBS FOR A
SIGNIFICANT AMOUNT OF TIME.
I MEAN, THE RECORD DOES
REFLECT THAT THE APPLICANT
DID WORK SEVERAL JOBS.
HIS WIFE SOUGHT EMPLOYMENT.
APPARENTLY, SHE DIDN'T HAVE
BEFORE ALL THIS HAPPENED.
>> SEVERAL JOBS AT THE SAME
TIME?
>> YES, SIR.
>> FOR WHAT PERIOD OF TIME
ARE WE TALKING ABOUT?
>> AGAIN, SPEAKING FROM,
FROM MEMORY FROM THE RECORD
I BELIEVE IT WAS INTO THE
EARLY 2000s, THEN THIS ONE
FIRM, THE FIRM HE WAS
WORKING FOR, THEY GAVE HIM A
SUBSTANTIAL INCREASE IN, IN
INCOME, AND AT THAT POINT, I
BELIEVE HE MAY HAVE JUST
FOCUSED HIS EFFORTS WITH
THAT ONE LAW FIRM.
SUBSEQUENT TO LOSING THAT
JOB, AND THAT WAS THE, THE
LUCRATIVE JOB I WAS REFERING
TO EARLIER THAT HE LOST,
SUBSEQUENT TO THAT JOB, HE'S
BEEN DOING CONTRACT WORK
WITH VARIOUS ATTORNEYS THAT
HE HAD, THAT HE KNOWS IN THE
MIAMI AREA.
I CAN'T GIVE YOU AN EXACT
NUMBER OF FIRMS OR NUMBER OF
ATTORNEYS THAT HE'S WORKED
WITH BUT THE INDICATION IS
THAT HE WORKS WITH SEVERAL
ATTORNEYS THAT HE KNOW BOTH
--
>> WELL, THERE ARE
PARALEGALS IN THIS AREA THAT
ARE MAKING OVER 1 HB,000 A
YEAR, 60, 70, 80, $100,000 A
YEAR.
WHAT IS HIS INCOME?
WHAT ARE WE SHOWING HERE
DURING THIS PARALEGAL TYPE
WORK?
>> I DON'T KNOW WHAT HIS
INCOME IS SUBSEQUENT TO
LEAVING THE ROBELUS FIRM.
I DON'T THINK THERE IS A
CLEAR DELINEATION IN THE
RECORD AS TO WHAT HIS INCOME
WAS.
>> LET ME MAKE ONE
CLARIFICATION HERE.
ON THIS SCHEDULE OF THE
BANKRUPTCY SCHEDULE, THERE
IS A LINE ITEM HERE FOR
TAXES FROM 1990, 19 KBIFB,
-- 1985, 1989, AND 1992 THAT
TOTALS $146,000.
WAS THAT DISCHARGED IN
BANKRUPTCY?
>> MY RECOLLECTION IS THAT
THE TESTIMONY AT THE FIRST
FORMAL HEARING WAS THAT THAT
THOSE OLDER OBLIGATIONS TO
THE IRS WERE SATISFIED, AND
THAT WHAT WAS, WHAT WAS --
>> SATISFIED AS OPPOSED TO
DISCHARGED IN BANKRUPTCY?
>> YES, MA'AM.
>> AND SATISFIED IN WHAT
WAY?
>> MY UNDERSTANDING IS THEY
WERE PAID OFF, AND THAT WAS
PART OF WHAT WAS CAUSING THE
PROBLEMS PARENTLY WITH
PAYING THE SUBSEQUENT TAXES
IS HE WAS FOCUSING A LOT OF
HIS RESOURCES ON PAYING THE
BAX TAXES HE OWED NOT HIS
EXCUSE FOR PAYING THE
UP-TO-DATE TAXES.
>> SO WHAT DOES THE RECORD
AS FAR AS HOW MUCH WAS THE
$146,000 WAS PAID?
WAS IT COMPROMISES AS MANY
OF THESE THINGS ARE?
>> I HONESTLY DON'T RECALL
WHETHER IT WAS THE FULL
140,000 WAS PAID OR WHETHER
THERE WAS SOME SORT OF, OF,
YOU KNOW, REDUCED VALUE THAT
WAS SETTLED.
>> LET ME PARAPHRASE BUT SEE
FIVE THE BOARD'S POSITION
CORRECTLY ON THE ORIGINAL
VIOLATION, THAT IS THAT IT
APPEARS FROM WHAT WE HAVE
THAT THERE WAS A QUARTER OF
A MILLION DOLLARS TAKEN FROM
THE TRUST ACCOUNT
ORIGINALLY.
IN OTHER WORDS, STEALING A
QUARTER OF A MILLION
DOLLARS.
FROM VARIOUS CLIENTS.
IS IT THE BOARD'S POSITION
THAT ALL $250,000 WAS PAID
BACK?
>> THE RECORD INDICATES THAT
THE DIRECT VICTIMS OF THAT
WERE PAID BACK.
THAT THAT MONEY CAME IN MANY
CIRCUMSTANCES FROM LIKE
PERSONAL LOANS AND THINGS OF
THAT NATURE THAT THE
APPLICANT TOOK FROM FRIENDS
AND, AND VARIOUS SOURCES.
IN THE FIRST FINDINGS FROM
THE BOARD, ONE OF THE
CONCERNS, AND ONE OF THE
REASONS THAT THE BOARD
RECOMMENDED HE NOT BE
ADMITTED WAS THAT HE HAD NOT
REPAID OR MADE ARRANGEMENTS
TO REPAY ALL OF THESE WHAT
ARE DESCRIBED AS INDIRECT
VICTIMS OF HIS THEFT OF
CLIENT FUNDS.
AND REFERENCE WAS MADE TO A,
A $20,000 LOAN THAT --
$20,000 THAT WAS LEFT ON A
PERSONAL LOAN THAT HAD BEEN
MADE TO HIM AND HIS STATED
INTENTION OF REPAYING THE
TRUST OF HAVING NOT EXECUTED
ANY DOCUMENTS THAT OBLIGATED
TO HIM TO REPAY THE TRUST
BECAUSE THAT DEBT HAD BEEN
DISCHARGED IN BANKRUPTCY.
AND SUBSEQUENT TO THAT FIRST
FORMAL HEARING, HE HAS PAID
OFF THE $20,000 DEBT.
HE HAS EXECUTED THE
DOCUMENTS THAT DO OBLIGATE
HIM TO REPAY THE TRUST, ALLBEIT
QUALIFIED WITH BEING
READMITTED TO THE BAR.
>> THAT'S THE $90,000?
>> YES, SIR.
>> AND THAT WAS ONE OF THE
ORIGINAL -- THAT WAS PART OF
THE ORIGINAL QUARTER OF A
MILLION DOLLARS?
>> IT WAS MONEY THAT WAS
BORROWED FROM AN AUNT TO
HELP REPAY THE MONEY THAT,
THAT HAD BEEN TAKEN FROM THE
CLIENT TRUST ACCOUNT.
SO IT WAS, IT WAS INDIRECTLY
ASSOCIATED WITH THE CLIENT
TRUST ACCOUNT MONEY.
IT WAS NOT A CLIENT THAT,
THAT HE, YOU KNOW, --
DIRECTLY OWED THAT $90,000
TO AT THAT POINT.
IT WAS SOMEONE HE BOROED THE
MONEY FROM.
>> AND THAT'S STILL
OUTSTANDING?
>> YES, SIR.
>> AND THE SAME CATEGORY
WITH THOSE DISCHARGED IN
BANKRUPTCY?
WERE THEY IN THE SAME
CATEGORY AS THE FAMILY
TRUST?
>> MY RECOLLECTION IS THAT
GENERALLY SPEAKING, THE
MAJORITY OF THE DEBTS THAT
WERE DISCHARGED IN
BANKRUPTCY WERE DEBTS
ASSOCIATED WITH GETTING
MONEY TO, TO, TO --
>> MR. BLYTHE I MUST TELL
YOU AS WE LOOK AT THE
SITUATION THERE ARE MANY MEN
AND WOMEN WHO LIVE IN
FLORIDA WHO DON'T HAVE THE
PRIVILEGE OF BEING A LAWYER
AND UNTIL WE AS A BAR
REQUIRE PEOPLE TO PLAY BY
THE RULES I DON'T KNOW HOW
WE CAN EXPECT THE BAR AND
THE JUDICIAL SYSTEM TO HAVE
THE RESPECT THAT IT OUGHT TO
HAVE.
THIS, DISCUSSION IS GOING TO
SCHOOLS, IT'S GOING TO
PLACES THROUGHOUT THIS
STATE.
AND WHAT YOU HAVE EXPLAINED
THIS MORNING IT SEEMS TO ME
IS SOMEONE WHO HAS REFUSED
TO PLAY BY THE RULES AT
EVERY LEVEL.
EVERY LEVEL.
THE IRS EARLY ON, AND THEN I
WON'T PAY THEM LATER, I
WON'T PAY THEM FOR THE PAST,
TAKING MONEY FROM OTHER
PEOPLE TO TO PAY OFF DEBTS
FROM CLIENTS, AND THOSE
THINGS ALL STILL OUTSTANDING
YET OUR BOARD OF BAR
EXAMINERS SAYS THIS IS WHAT,
THIS IS THE CATEGORY THAT WE
SHOULD ALLOW FOLKS TO HAVE
THE PRIVILEGE OF BEING A
LAWYER.
COULD YOU RESPOND TO THAT TO
THE PEOPLE OF FLORIDA?
>> YES, SIR.
I BELIEVE THEBOARD'S
RECOMMENDATION AFTER THIS
SECOND FORMAL HEARING BEFORE
THE BOARD IS REFLECTS THE
BOARD'S ANALYSIS THAT THE
APPLICANT HAS TAKEN A--
AFFIRMATIVE STEPS TO TRY TO
DEAL WITH THE DEBTS THAT HE
HAS.
IT'S A SITUATION WHERE WE
ARE TALKING ABOUT A LOT OF
MONEY, AND, AND THE
FINANCIAL RESOURCES THAT ARE,
THAT ARE AVAILABLE TO HIM
WITHOUT BEING ABLE TO
PRACTICE AS AN ATTORNEY MAY
LIMIT HIS ABILITY TO, TO
REPAY THOSE DEBTS SO HE HAS
-- HE HAS CREATED A
SITUATION WHERE HE IS SET,
HE IS OBLIGATING HIMSELF TO
TRY -- TO TRY TO RESPONSIBLY
DEAL WITH THESE DEBTS AND HE
CERTAINLY HAS DONE WHAT HE
CAN WITH THE IRS AND THE IRS
HAS BASICALLY SAID WE ARE
NOT GOING TO DO ANYTHING
WITH YOU TO TRY TO SET
SETTLE THIS SITUATION SHORT
OF PAYING ALL THE TAXES THAT
AROSE UNTIL YOU ARE ADMITTED
TO THE BAR OR NOT.
>> THANK YOU.
COUNSEL?
>> THANK YOU, YOUR HONOR.
MAY IT PLEASE THE COURT.
MY NAME IS -- AND I
REPRESENT MR. MARKS.
FIRST LET ME EXPLAIN THE
ISSUE OF THE MARK.
IT IS NOT $250,000.
OVER THE COURSE OF TIME,
MR. MARKS USED $250,000 FOR
PERSONAL USES OUT OF THE
TRUST ACCOUNT BUT THE TOTAL
AMOUNT OF THE -- WAS SHORT
OF $100,000, ABOUT 90 TO
$100,000.
WHICH HE BORROWED FROM A
FAMILY MEMBER TO REPAY THE
CLIENTS.
>> WAS THAT ESTABLISHED IN
ANY KIND OF A HEARING OR OR,
WAS THERE A FINDING OF A
REFEREE OR THE BOARD OR IN
OTHER WORDS, BY SOME FACT
FINDING BODY WAS THAT ADJUD!!!!!!!!!!
ADJUDICATED?
>> I BELIEVE THAT'S THE
TESTIMONY IN THE NOVEMBER
4th AND, I BELIEVE IT'S ALSO
IN THE PRIOR HEARINGS BEFORE
THE BAR.
SO MR. MARKS TESTIMONY IS
THAT THE $250,000 WAS USED
OVER A COURSE OR DURING A
PERIOD OF TIME BUT THE
ACTUAL AMOUNT, THE TOTAL WAS
APPROXIMATELY $100,000.
THAT'S WHY THE BAR FOCUSED
ON THAT REPAYMENT.
>> COULD YOU ANSWER JUSTICE
ANSTEAD'S QUESTION.
WAS THAT EVER ESTABLISHED?
>> I BELIEVE BY A REFEREEANE
HEARING IN SOME FASHION,
SOME FACT FINDING IS THAT
JUST THE TESTIMONY OF THE
CLIENT?
>> I BELIEVE THAT'S THE
TESTIMONY OF THE CLIENT.
AND I THINK IT WAS
INCORPORATED IN THE BOARD'S
RECOMMENDATION AND ORDER BUT
I WOULD HAVE TO LOOK AT THAT
SPECIFICLY --
>> WELL THIS IS TO BE --
FROM THE BOARD'S BRIEF BY
MR. MARKS' OWN TESTIMONY, HE
MISAPPROPRIATED
APPROXIMATELY A QUARTER OF A
MILLION DOLLARS IN 12 TO 15
WITHDRAWALS OVER A PERIOD OF
A YEAR OR MORE, AND HE
WITHDREW THE MONEY FOR HIS
PERSONAL USE.
SMOIMS HE WOULD PAY IT BACK,
WITHDRAW MORE SO THERE IS A
PATTERNT.
SO MAYBE IN THE END --
>> THAT IS CORRECT.
>> WE DISBAR LAWYERS THAT DO
THIS, AND IS ALL PAID BACK.
IN THIS SITUATION, NOT ONLY
WAS ALL THIS MONEY TAKEN
OVER NUMEROUS PERIODS OF
TIME WITH NUMEROUS TRUST
ACCOUNTS VIOLATIONS BUT
THERE WAS AN ACTUAL THEFT
AND THEN TO REPAY THAT
ACTUAL THEFT, HE BORROWS
MONEY WHICH HE HASN'T
REPAID.
AND ON TOP OF THAT, AND LET
ME JUST, BECAUSE THIS IS THE
THING IS THAT OKAY THAT'S
BAD ENOUGH IN THE EARLY 90s
THAT HE DOES THIS.
SO WHAT DOES HE DO THEN TO
MAKE SURE THAT HE LIVES A
LIFE THAT IS BEYOND
REPROACH?
HE GOES AHEAD AND FOR
SEVERAL YEARS DOESN'T PAY
HIS INCOME TAXES.
I DON'T KNOW HOW MANY
LAWYERS IN THIS STATE ARE
NOT PAYING THEIR INCOME
TAXES, BUT IF WE HAVE THEM,
I DON'T UNDERSTAND HOW WE'RE
ALLOWING THEM TO PRACTICE
LAW.
AND AND WHAT DOES HE DO IT
FOR?
I THINK IT'S A PRETTY FLIMSY
EXCUSE SAYING I'M SENDING MY
KIDS TO COLLEGE.
ONE WENT TO CERECUSE ONE
WENT TO UNIVERSITY OF
FLORIDA YOU THINK AGAIN
SOMEONE SHOULD HAVE THE
PRICHKOLOG OF PRACTICING LAW
AFTER BEING DISBARRED GO
AAHEAD AND WILLFULLY REFUSES
TO PAY TAXES FOR A PERIOD OF
SEVERAL YEARS WHILE HE IS
MAKE AGSIGNIFICANT INCOME.
>> I THINK THE COMPLETE
PICTURE THERE IS FIRST HE
FILED TAX RETURNS AS EVERY
-- DURING EVERY YEAR.
HE'S FILELOAD HIS RETURNS.
HE DIDN'T HAVE THE ABILITY
TO PAY ALL HIS TAXES AND AT
THIS POINT, HE HAS
CONSISTENTLY MADE
ARRANGEMENTS WITH THE IRS TO
MAKE THOSE PAYMENTS.
IN FACT, DURING THE ONE-YEAR
PERIOD AFTER THE BOARD'S
RECOMMENDATION, THE
REQUIREMENT WAS THAT HE
CONTINUED TO MAKE THOSE
EFFORTS, AND WHAT HAS
HAPPENED DURING THAT PERIOD
OF TIME IS THAT HE MADE THE
CONTACT WITH THE IRS, MADE
THE ARRANGEMENTS, ACCEPTED
WHAT THE IRS OFFERED OF A
$30,000 PAYMENT, THE IRS
WENT UP THE LADDER TO, TO
SUPERVISORS WHO THEN HAVE
RETURNED A RESPONSE SAYING
WE WANT TO WAIT UNTIL WE
KNOW WHETHER YOU'RE
EMPLOYABLE AS A LICENSED
ATTORNEY OR NOT BEFORE WE
ACCEPT THAT.
>> WELL, THAT'S FROM THE IRS
THAT THAT'S NOT ACCEPTABLE
TO THIS COURT THOUGH THAT
THE IRS USES A LICENSE TO
PRACTICE LAW AS A TICK FRT
-- FOR REPAYMENT.
THAT THAT, THAT THEY'RE
PUTTING THIS -- YOUR CLIENT
IN A MORE DIFFICULT
SITUATION.
PLUS, THIS IDEA THAT THE
$90,000 DEBT ALSO IS
CONTINGENT ON WHETHER HE
BECOMES A PRACTICING LAWYER.
I MEAN, IS IT THE MESSAGE
THAT, THAT THE, THAT
PRIVILEGE OF PRACTICING LAW
IS, IF IS A SUPERMEAL
TICKET?
IF WE GRANT THE
REINSTATEMENT IN THIS CASE?
>> YOUR HONOR, WE ARE AWARE
THAT THEY ARE SEND AGBAD
MESSAGE BY DOING THAT BUT
MR. MARKICIZE SENDING THE
CORRECT MESSAGE BY GOING
CONSISTENTLY IN SPITE OF
EVERYTHING ELSE TO THE IRS
AND MAKING EVERY RESPONSIBLE
ARRANGEMENT THAT HE CAN
WITHIN HIS MEANS TO MAKE --
>> YOU INCLUDED YOUR ANSWER
TO JUSTICE PARIENTE'S
QUESTION THAT HE FILED HIS
INCOME TAX RETURN BUT THAT
HE DIDN'T HAVE THE ABILITY
TO PAY THE TAX.
NOW I HAVE SOME DIFFICULTY
WITH THAT ANSWER.
HE WAS EARNING A CERTAIN
AMOUNT OF INCOME CERTAINLY
AS A NORMAL CITIZEN THAT
EVEN ON THE HYPHENED BASIS
OF BEING A LAWYER, HE IS
AWARE, I'M SURE, OF
APPROXIMATELY WHAT HIS
INCOME TAX OBLIGATION WOULD
BE ON THE AMOUNT THAT HE WAS
EARNING.
WHERE DOES THIS RECORD
DEMONSTRATE THAT HE DIDN'T
HAVE THE ABILITY TO PAY
THOSE TAXES?
>> WELL, THE ARRANGEMENTS
THAT, THAT HE HAS MADE WITH
THE IRS I CAN SPEAK TO --
>> I'M ASKING YOU THE
QUESTION.
YOU SAID IN YOUR ANSWER TO
JUSTICE PARIENTE, HE FILED
THE TAX RETURNS, BUT HE
DIDN'T HAVE THE FINANCIAL
ABILITY TO PAY HIS TAXES.
NOW, WHERE IN THE RECORD
DOES IT DEMONSTRATE THAT HE
DIDN'T HAVE THE FINANCIAL
ABILITY TO PAY HITAXES?
>> I THINK THE RECORD
INDICATES THAT WHEN HE LOST
HIS LICENSE TO PRACTICE LAW,
AND HE LOST HIS EMPLOYMENT,
AND HE HAD --
>> THE TAXES ARE BASED ON
THE INCOME THAT HE'S
CURRENTLY MAKING.
IS THAT CORRECT?
>> WELL, THERE WAS --
>> ROUGHLY SOME, YOU KNOW,
SOME PERCENTAGE OF THAT.
LET'S SAY IT'S 10%.
ALL RIGHT SO IF HE EARNS
$100,000, OKAY, THEN
IMPLICIT IN THAT IS THAT
HE'S GOT $10,000 IN THERE TO
PAY HIS INCOME TAXES.
DOES HE NOT?
I GUESS I'M -- THIS IS A
AROUND THIS THING OF, THAT
APPARENTLY HIS TESTIMONY WAS
THAT I CHOSE INSTEAD TO
PROVIDE I CHOSE TO PROVIDE
MY CHILDREN WITH A -- I
COULD'VE AFFORDED TO PAY MY
TAXES BUT MY DECISION WAS TO
LOOK OUT FOR MY CHILDREN AND
PROVIDE THEM WITH A FIRST
CLASS HIGHER EDUCATION.
DOES THE, DOES THE RECORD
SHOW WHAT, WHAT AMOUNTS HE
DID PAY?
YOU KNOW FOR HIS CHILDREN'S
EDUCATION?
DURING THOSE YEARS?
HE WAS CHOOSING NOT TO PAY
HIS TAXES?
I BELIEVE IT DOES AND I
DON'T THINK IT WAS THE FULL
AMOUNT OF A COLLEGE
SCHOLARSHIP AS COLLEGE
TUITION AS I RECALL BUT I
DON'T RECALL.
>> YOU KNOW HOW MUCH WAS IT
FOR EACH CHILD PER YEAR?
>> YOUR HONOR, I DON'T
RECALL.
I JUST DON'T.
>> DOES THE RECORD SHOW
THAT?
>> THE EXACT AMOUNTS, I
DON'T THINK SO.
>> BUT WOULD YOUGRY THAT
THAT WAS HIS TESTIMONY.
>> THAT WAS HIS TESTIMONY.
>> I COULD'VE PAID THE
TAXWISE THAT MONEY THAT I I
CHOSE TO PAY FOR MY
CHILDREN'S HIGHER EDUCATION.
>> MY RECOLLECTION.
NOT MAKING ANY JUDGMENT
ABOUT THAT.
>> I UNDERSTAND, YOUR HONOR,
AND I, I BELIEVE THAT THAT
TESTIMONY IS ACCURATE.
BUT IN CONTEXT, IT WAS THAT
HE HAD CHOICES TO MAKE IN
TERMS OF ALL OF HIS PAYMENTS
--
>> FOLLOWING UP ON JUSTICE
LEWIS'S QUESTION, HOW MANY
OF OUR CITIZENS OUT THERE
WOULD THINK THAT THEY COULD
TELL THE IRS, HEY, I'LL TAKE
CARE OF YOU SOMETIME DOWN
THE ROAD BECAUSE IN THE
MEANTIME, I'VE GOT TO PUT MY
KIDS THROUGH COLLEGE.
AND THAT'S WHAT I'M GOING TO
DO.
AND YOU JUST, YOU CAN SIT ON
IT.
OKAY.
HOW MANY OF OUR CITIZENS DO
YOU THINK WOULD GET AWAY
WITH THAT?
>> I THINK, I DON'T KNOW,
BUT I THINK THAT ANOTHER
INTERESTING QUESTION IS, HOW
MANY OF OUR CITIZENS WOULD
WORK THROUGH REHABILITATION
TO THE POINT OF TODAY BEING
ABLE TO WALK INTO THE IRS
AND SAYING I'VE OVERPAID
THIS 14 -- MADE THIS $14,000
PAYMENT THAT THEY HAVEN'T
YET APPLIED CORRECTLY.
I'VE --
>> I'M CONCERNED THAT YOU
HAVE SAID THAT THE AMOUNT
REALLY THAT WAS INVOLVED WAS
$100,000 OR LESS, AND THAT
HE ACTUALLY BORROWED THE
MONEY, THIS IS YEARS AGO,,
YOU KNOW, THAT HE WAS
ALLEGED TO HAVE DONE THAT.
HE BLORO -- BORROWED THE
MONEY FROM A FAMILY TRUST TO
PAY THAT THEN, AND THAT HE
STILL OWES THAT SAME AMOUNT
OF MONEY TODAY.
TO THAT FAMILY TRUST.
SO THE APPEARANCE AT LEAST
SUPERFICIALLY IS IS THAT HE
HASN'T REDUCED THAT, THE
AMOUNT OF MONEY THAT HE
STOLE FROM HAD TRUST ACCOUNT
OR WHATEVER BY, BY ANYTHING.
THAT THAT, THAT DEBT IS
STILL OUTSTANDING.
IS THAT A, A CORRECT READING
OF WHAT THIS RECORD SHOWS?
>> THAT'S BEEN THE CHOICE OF
THE, THE TRUST AND ALSO THE
IRS.
TO NOT ACCEPT THE, THE
PAYMENTS UNTIL SOMETHING
HAPPENS WITH RESPECT TO HIS
LICENSE, BUT --
>> THE TRUST HAS CHOSEN NOT
TO ACCEPT PAYMENTS FROM HIM?
>> IN TERMS OF THE
AGREEMENTS THAT HE HAS
OFFERED, THAT'S WHERE IT
STANDS RIGHT NOW.
THAT THEY WANT TO WAIT UNTIL
HIS LICENSING BEFORE THEY
KNOW WHO THE OWNER --
>> DON'T YOU THINK THAT THE
ESANCE OF SHOWING
REHABILITATION IS FIRST TO
TAKE CARE OF THESE PROBLEMS
OR THESE ISSUES THAT WERE
OUTSTANDING AND THAT CAUSED
ME TO HAVE TO RESIGN IN THE
FACE OF DISBARMENT
PROCEEDINGS AND FELONY
CHARGES ABOUT THESE THINGS?
WOULDN'T THE FIRST
OBLIGATION BE THAT I'VE GOT
TO TAKE CARE OF THOSE
THINGS.
THAT IS THE FIRST THING THAT
THE COURT OR THE BOARD IS
GOING TO LOOK AT THAT I TAKE
CARE OF THOSE THINGS THAT
GOT ME INTO THIS POSITION TO
BEGIN WITH?
>> AND I THINK THAT WITH
WHAT THE BOARD SAW WAS A MAN
WHO WAS CONSISTENTLY DEALING
WITH THOSE ISSUES TRYING TO
WORK OUT AN ARRANGEMENTS,
NOT AVOIDING THEM AT ALL.
AND I DIDN'T MEAN TO
DIMINISH THE IMPORTANCE OF
THE AMOUNT WLRX IT'S 250,000
OR 100,000 I WAS JUST TRYING
TO CLASSIFY WHY THAT AMOUNT
IS THE AMOUNT THAT'S
OUTSTANDING.
>> MY CONCERN IS THAT IF YOU
ARE ACCURATE, IF IT'S JUST
$100,000 AMOUNT AND HE HAD
BORROWED MONEY, YOU KNOW, TO
COVER THOSE THINGS, AND THAT
THOSE THINGS ARE STILL
OUTSTANDING -- WHAT, WHAT
YEAR WAS IT THAT ALL THIS
OCCURRED AND THAT HE
RESIGNED?
>> THIS WAS 17 YEARS AGO,
91?
>> SO LET ME ASK YOU.
IT WAS 1990 ACTUALLY WHEN HE
FILED THE PETITION TO RESIGN
SO IT WOULD HAVE OCCURRED
BEFORE THAT.
THIS $90,000, LET ME SEE IF
I UNDERSTAND THE NATURE OF
THE TRUST.
THIS WAS A TRUST SET UP BY
THE AUNT FOR A DISABLED SON
S THAT CORRECT?
>> THERE IS SOME HISTORY AS
TO THAT.
THIS IS A VERY WEALTHY AUNT,
FAMILY MB, AND SOME OF THE
TRUST MONEY WAS USED FOR
DISABLED SON.
AND AFTER THE, THE LOAN,
THEN THE, BY INTERVENTION OF
AN UNCLE, THE TRUST WAS, WAS
CHANGED IN SOME WAY.
BUT ESSENTIALLY, YOUR
HONOR'S CORRECT.
>> BUT BASICALLY, HE GOES TO
AN AUNTS WHO HAS SOME MONEY
AND SAYS LOOK, I'M IN
TROUBLE HERE.
I'VE STOLE AN BUNCH OF
MONEY.
HELP ME OUT.
SHE HAS MONEY SET ASIDE FOR
A DISABLED SON.
SHE BOW O-- BORROWED Y. MEAN
WHAT IS A FAMILY MEMBER
GOING TO DO?
AND SHE'S BEEN WAITING 17
YEARS TO GET ANY PAYMENT
BACK ON THIS MONEY.
>> SMOOSOMETIMES MORE
FAMILY'S MORE DIFFICULT TO
DEAL WITH THAN NONFAMILY AND
I THINK --
>> BUT WASN'T IT DISCHARGED
IN BANKRUPTCY?
WASN'T THIS DEBT DISCHARGED
IN BANKRUPTCY?
>> IT COULD'VE BEEN
DISCHARGED IN BANKRUPTCY BUT
I BELIEVE HE STILL --
>> WELL WHAT IS THE NATURE
OF THE AGREEMENT THEN IF, IF
HE'S MADE AN AGREEMENT
DESPITE THE DISCHARGE OF
THIS IN BANKRUPTCY, AND WE
KEEP HEARING THAT ANY
PAYMENT IS CONTINGENT ON HIM
GETTING BACK IN THE BAR, DO
WE ACTUALLY HAVE A COPY IN
THIS RECORD OF WHATEVER
AGREEMENT HE'S MADE WITH
THIS TRUST?
>> HE'S MADE PAYMENTS ON THE
TRUST.
HE MADE INTEREST ONLY
PAYMENTS FOR A NUMBER OF
YEARS.
AND.
>> BUT MY QUESTION IS, DO WE
HAVE A COPY OF AN AGREEMENT
THAT HE HAS SIGNED THAT
OBLIGATES HIM TO PAY BACK
THIS $90,000 EVEN THOUGH IT
WAS DISCHARGED IN
BANKRUPTCY?
>> I DON'T THINK THE RECORD
HAS THAT AT THIS POINT, NO.
>> SO IN ESSENCE, THIS
REALLY ISN'T SOMETHING THAT
HE HAS TO PAY BACK?
BECAUSE IT'S BEEN
DISCHARGED.
>> I DON'T THINK IT HAS BEEN
DISCHARGED.
WHAT I SAID THAT HE HAD THE
TO DISCHARGE IT IN
BANKRUPTCY BUT HE CHOSE NOT
TO --
>> WELL IT WAS ON HIS
SCHEDULE.
>> IT WAS ON THE SCHEDULE
BUT IF HE CHOSE TO REAFFIRM
THE DEBT AND CONTINUE TO
MAKE PAYMENTS AT THIS POINT,
I THINK THAT ALSO --
>> I GUESS I WANT TO -- I'M
INTERESTED IN DO WE HAVE THE
DOCUMENTS THAT SHOWS HE'S
REFIRMED THIS DEBT?
>> I WOULD HAVE TO LOOK AT
THE RECORD BUT I DON'T KNOW
IF, IF THERE'S AN EXISTING
DOCUMENT TODAY REFLECTING
THAT.
>> JUSTICE PARIENTE.
>> I WOULD LIKE TO GO TO THE
TIMING OF THE FILING OF THE
PETITION FOR DISCHARGE IN
BANKRUPTCY WHICH WAS 1997.
SO UP TO THAT TIME AGAIN IT
APPEARS TO BE THAT HE HAD
THESE DEBTS LISTED IN THE
SKEFRNAL.
MYRON MARKS $83667.
WAS THAT DISCHARGED IN
BANKRUPTCY AND NEVER REPAID?
>> THE FINAL ORDER OF THE
BANKRUPTCY I THINK
DISCHARGED ALL THE DEBTS
THAT HE SCHEDULED.
MY UNDERSTANDING IS THAT
THAT DEBT, AND I'M USING THE
WORD LOOSELY, IT WAS
REAFFIRMED.
>> WAS REAFFIRMED?
>> I BELIEVE THAT HE HAS
MADE COMMITMENTS TO THE
TRUST TO CONTINUE MAKING
THAT PAYMENT.
>> THAT'S ANOTHER -- THAT'S
MYRON MARKS.
THAT'S DIFFERENT THAN GENIE
MARKS.
AS I SAID, THERE WFS HALF A
MILLION DOLLARS IN 1997 THAT
HE OWS AND FROM WHAT I AM
UNDERSTANDING IT APPEARS
THERE WAS A SELECTIVE
DECISION AS TO WHICH DEBTS
WERE GOING TO BE REAFFIRMED
FOR EXAMPLE UNITED NATIONAL
BANK $75,000.
WAS THAT MONEY REPAID,
REFERNALED?
>> NO, I DO NOT BELIEVE.
>> SO HOW IS THAT EVIDENCE
OF REHABILITATION?
SOMEBODY SEEKING TO
DISCHARGE DEBTS THAT THEY'VE
-- WERE, WERE, OCCURRED
YEARS BEFORE WHEN THEY'RE
TRYING TO SEEK READMISSION
BECAUSE THAT'S WHEN ABOUT HE
TRIED TO SEEK READMISSION BY
TRYING TO DISCHARGE THESE
DEBTS IN BANKRUPTCY?
>> I DON'T THINK HE WAS
SEEKING TO DISCHARGE THE
DEBTS ARISING FROM THE --
>> BUT THAT'S --
>> UNSECURE PERSONAL LOAN
1989.
$75,000.
IT WAS ALL BECAUSE DURING
THAT TIME PERIOD HE WAS
LIVINGING BY HIS OWN
ADMISSION WAY BEYOND HIS
MEANS.
>> RIGHT.
>> SO HE WAS STEALING MONEY
FROM CLIENTS, HE WAS
STEALING MONEY FROM THE
TRUST ACCOUNT, HE WAS THEN
TAKING LOANS FROM WHEREVER
HE COULD GET THEM AND
INSTEAD OF TRYING TO REPAY
THEM, HE SOUGHT TO DISCHARGE
THEM IN BANKRUPTCY.
I DON'T SEE HOW THAT'S
FINANCIALLY RESPONSIBLE.
>> I THINK THE, THE WHOLE
HISTORY OF THE PAST 16 OR 17
YEARS OF HIS DEALING WITH
THE IRS AND ESPECIALLY WHERE
HE HAS ARRIVED TODAY IN
TERMS OF THE FACT THAT HE'S
PAID AND THE FACT THAT HE'S
MADE MORE PAYMENTS THAN,
THAN THAT THEY SHOW AND THAT
HE'S MADE THE ARRANGEMENTS
SPEAK, SPEAK TO HIS
CHARACTER, AND WHETHER OR
NOT HE CHOSE TO FILE FOR
BUSINESS BANKRUPTCY AT THAT
TIME, I THINK IS ONLY ONE OF
THE THINGS THAT, THAT THE
COURT CAN LOOK AT.
THE ENTIRE HISTORY OF WHAT
HE HAS DONE WITH ALL OF HIS
DEBTS AND WITH THE IRS AND
PARTICULARLY THE, THE LEVEL
OF COMMUNITY SERVICE
COMMITMENT THAT, THE LEVEL
OF EVERYTHING ELSE THAT HE
HAS DONE SPEAK MORE TO HIS
CHARACTER THAN JUST THIS ONE
EVENT OF HAVING FILE
ADBANKRUPTCY OR THE TAX --
>> I WAS JUST PUTTING THAT
ON IF WE WERE LOOKING TO SAY
WELL, HE'S -- NOT WE WERE
NOT GOING TO ADMIT PEOPLE
BACK TO THE BAR THAT HAVE
OUTSTANDING FINANCIAL
ISSUES.
AND WE GO, WELL HERE, HE
DOESN'T HAVE ALL THAT MUCH
BUT IF HE DOESN'T HAVE ALL
THAT MUCH BECAUSE HE
DISCHARGED THOSE DEBTS IN
BANKRUPTCY, I'M NOT SURE
THAT SAYS MUCH AND THAT WAS
THE ONLY REASON I ADDED THAT
ON IS TO TRY TO UNDERSTAND,
WHICH I STILL DON'T HAVE AN
UNDERSTANDING OF WHICH DEBTS
WERE DISCHARGED, WHICH DEBTS
WERE PAID, AND WHICH DEBTS
ARE STILL OUTSTANDING.
>> THE RECORD I THINK IS WE
NEED TO HAVE SOMETHING IN
THE RECORD IN TERMS OF WHICH
DEBTS ARE STILL OUTSTANDING
THAT WERE PART OF THAT
SCHEDULE.
MY UNDERSTANDING HERE THOUGH
--
>> AS WE SAID EARLIER REALLY
ISN'T COMPLETE ENOUGH.
IT LEAVES THIS COURT, AT
LEAST THOSE THAT ARE, I
SPEAK FOR MYSELF AND YOU'VE
HEARD QUESTIONS FROM MANY OF
THE JUSTICES, REALLY NOT
SURE ABOUT THIS APPLICANT.
AND I CAN -- I'M NOT, YOU
KNOW, YES HE'S DONE SOME
COMMUNITY SERVICE BUT I
COULD POINT TO, YOU KNOW, A
HOPEFULLY MANY, MEMBERS OF
THE BAR WHO ARE FINE
OUTSTANDING MEMBERS OF THE
BAR THAT DO THIS TYPE OF
COMMUNITY SERVICE, SO I
DON'T, YOU KNOW, I DON'T SEE
THAT AS GOING ABOVE AND
BEYOND.
>> YOUR HONOR, IN TERMS OF
THE COMMUNITY SERVICE, I
KNOW THAT WE'RE FOCUSING ON
THE FINANCIAL ISSUE, AND
SKPSHTHS COURT HAS ELECTED
TO LOOK AT THAT -- WITH
SCRUTINY BUT IN TERMS OF THE
COMMUNITY SERVICE, IT'S MUCH
MORE SIGNIFICANT THAN WHAT
THE AVERAGE PERSON DOES&I
CAN SPEAK TO THAT AS WELL.
HOWEVER, I DON'T WANT TO SHY
AWAY FROM THE FINANCIAL
ISSUE.
AND THE ONLY THING I CAN SAY
ABOUT THAT IS THAT IF DURING
BANKRUPTCY HE HAD AN
OPPORTUNITY TO DISCHARGE ALL
THESE DEBTS BUT HE HAS
ELECTED TO MAKE GOOD ON
THOSE LOANS WHICH ARE
DIRECTLY INVOLVED WITH THE
DEFALCATION AND NOT JUST
BUSINESS DEBTS
ACCUMMULATION.
>> WE DON'T EVEN KNOW REALLY
THAT.
ON THIS RECORD, WE DON'T
REALLY KNOW THAT HE HAS
CHOSEN TO REFIRM ANY OF
THESE.
THERE IS NOTHING IN HERE OR
MAYBE I'M MISSING IT, THAT
REALLY DEMONSTRATES THERE'S
NO AGREEMENT THAT
DEMONSTRATES THAT HE HAS
REAFFIRMED THESE.
>> THERE IS TESTIMONY OF IN
NOVEMBER 2004 OF THE
WITNESSES AND OF MR. MARKS
THAT SPEAK TO THE DEBTS HE
WAS ATTEMPTING TO RESOLVE AT
THAT TIME, AND THAT'S THE
RECORD THAT I HAVE.
>> COULD HE DISCHARGE IN
BANKRUPTCY THE $90,000 HE
TOOK OUT OF THE TRUST
ACCOUNT?
>> COULD HE HAVE -- AT THAT
POINT, IF IT WAS A LOAN MADE
TO HIM --
>> BUT IT WASN'T A LOAN MADE
TO HIM.
IT WAS A DEFALCATION.
FROM WHAT YOU HAVE
INDICATED.
>> AT THAT PARTICULAR POINT,
THOUGH LTHAT WAS BEING DEALT
WITH WAS A PERSONAL LOAN TO
HIM BECAUSE THE MONEY THAT
HE BORROWED WAS USED TO
REPAY THE AMOUNT OF --
>> BUT THE AMOUNT OF MONEY
THAT YOU WOULD AGREE THAT
THE MONEY -- AMOUNT OF MONEY
THAT HE ACTUALLY TOOK OUT OF
THE TRUST EKT WOULD NOT BE
DISCHARGEABLE?
>> THAT IS CORRECT.
THAT IS CORRECT.
ARE THERE ANY FURTHER
QUESTIONS?
IF NOT, --
>> THANK YOU FOR YOUR
ASSISTANCE.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE COURT WILL TAKE ITS
MORNING RECESS.