CHIEF JUSTICE WELLS WILL NOT BE WITH US FOR THE NEXT TWO CASES. HE WILL BE SITTING ON THE CASES AND HE WILL BE VOTING ON THEM AND HE'LL BE LISTENING TO THE TAPES. FLORIDA BAR VERSUS DANN A.

MAY IT PLEASE THE COURT, I'M SCOTT TOZIAN. THIS IS MY ASSOCIATE GLEN HOLSTRUM ON BEHALF OF PHILLIP DANN. I'D LIKE TO START OUT BY SAYING I BELIEVE THE BAR'S ASSISTANCE AND THE ARE REFEREE'S FINDINGS THAT MR. BOSTARDIC LACKED THE CAPACITY TO REFLECTS A MISUNDERSTANDING BY BOTH THE FLORIDA BAR AND THE REFEREE OF CAPACITY.

BEFORE YOU GET INTO THIS. BECAUSE THIS TESTAMENTARY CAPACITY ISSUE IS WHAT YOU'RE SEEKING REMAND ON O. EXPLAIN HOW TESTAMENTARY CAPACITY IS SIGNIFICANT TO THE FINDINGS OF THE RULES VIOLATIONS. IN OTHER WORDS, I'M HAVING TROUBLE SEEING HOW FOR EXAMPLE THE SELF SEALING IS STILL SELF SEALING EITHER WORSE OR BETTER DEPENDING ON HOW YOU LOOK AT IT IF MR. BOSTARDIC HAD THE CAPACITY TO UNDERSTAND WHAT'S GOING ON.

I THINK THE REFEREE THOUGHT IT WAS SIGNIFICANT. HE THOUGHT MR. DANN MR. SHOULD HAVE KNOWN THE TESTAMENTARY CAPACITY. HE WENT TO THE TROUBLE FINDING THAT AS IF THAT WERE SOME ELEMENT OR A 484 C VIOLATION.

YOU BUT AGREE IT'S NOT. IT'S NOT IS IT.

WHETHER OR NOT HE LACKED TESTAMENTARY CAPACITY?

RIGHT.

I WOULD STRONGLY SUGGEST HE DIDN'T LACK IT. I THINK THE RECORD IS CLEAR HE DIDN'T LACK IT.

IS THERE SOME MED KAEFL DENSE PRESENTED ON THIS ISSUE?

THE ONLY MEDICAL EVIDENCE THAT WAS PRESENTED WAS THE EXPERT TESTIMONY OF DR. KOZMA WHO TESTIFIED ON BEHALF OF THE FLORIDA BAR AND DR. DONNA COHEN WHO TESTIFIED ON BEHALF OF MR. DANN. NEITHER OF THESE PEOPLE HAD THE OPPORTUNITY TO ACTUALLY EVALUATE MR. BOSTIC WHILE HE WAS ALIVE SO THEIR EVALUATION AS WERE BASED UPON INTERVIEWS WITH PEOPLE WHO NOW MR. VASIC BASED UPON THE REVIEW OF NURSING NOTES AND MEDICAL RECORDS OVER THE LAST FEW YEARS OF HIS LIFETIME.

THE REFEREE'S REPORT CONTAINS REFERENCES TO PHYSICIANS' OPINIONS ABOUT THE MENTAL CONDITION OF THE DECEDENT.

YES, SIR.

TELL ME ABOUT THAT.

IT REFERS TO HIS CONDITION AS IT RELATED TO CERTAIN LETTERS THAT WERE WRITTEN IN 1996 TO FINANCIAL INSTITUTIONS TRYING TO GET MR. VASIC OUT OF SOME TIME HELD FUNDS.

WAS 1996 THE EARLIEST OF THE MEDICAL --

I THINK DR. ELLIOTT WROTE A LETTER IN 1994 WHICH INDICATED THAT HE WAS INCAPACITATED BUT DIDN'T SPECIFY IF THAT INCAPACITY WAS PHYSICAL OR MENTAL AS I RECALL CORRECTLY.

WAS THERE -- WERE THOSE LETTERS USED BY YOUR CLIENT IN ANY WAY?

THEY WERE USED -- YES, SIR. THEY WERE USED BY MR. DANN IN ORDER TO RETRIEVE MONEY THAT WAS HELD IN FINANCIAL INSTITUTIONS FOR A SET PERIOD OF TIME TO AVOID A PENALTY FOR EARLY WITHDRAWAL.

ON THAT SPECIFIC BASIS?

YES, SIR.

IN OTHER WORDS, THE MENTAL INCOMPETENCY?

WELL, THE WORDS THAT WERE USED IN THESE LETTERS VARIED. IT'S ANOTHER PROBLEM THAT I FIND WITH THIS CASE, THAT THE WORDS THAT WERE INTERCHANGEABLY USED WERE INCAPACITY, INCOMPETENCE, TESTAMENTARY CAPACITY.

WHAT WAS THE ISSUE THE LETTERS WERE USED FOR? IN OTHER WORDS, THAT WOULD YOUR CLIENT APPARENTLY SOUGHT THOSE LETTERS FROM THE PHYSICIANS?

YES, SIR. THAT'S CORRECT.

SO WHAT WAS THE ISSUE THAT YOUR CLIENT SOUGHT TO ADDRESS BY SECURING THOSE LETTERS?

HE WAS ATTEMPTING TO -- THE ISSUE WAS INCAPACITY BUT IN SOME AREAS HE USED THE WORDS INCOMPETENCE SI IN SOME LETTERS HE USED INEXE TEN SIS.

BUT YOUR CLIENT SOLICITED THOSE LETTERS FROM THE PHYSICIAN IN ORDER TO ESTABLISH THE DECEDENT WAS WHAT?

WELL, THAT HE WAS INCAPACITATED.

THAT HE MENTALLY LACKED THE ABILITY TO REALLY GOVERN HIS OWN AFFAIRS. IS THAT NOT CORRECT?

I THINK THAT IS CORRECT.

I MEAN, THAT WAS THE WAY THAT THIS WAS USED WITH THE BANKS BY YOUR CLIENT, IS THAT RIGHT?

YES, SIR, YES, SIR, I BELIEVE THAT'S CORRECT BUT I THINK THAT'S A TOTALLY DIFFERENT STANDARD THAN TESTAMENTARY CAPACITY. IF YOU READ THE CASE ON TESTAMENTARY CAPACITY A LUNATIC CAN WRITE A WILL, EXECUTED A WILL. A PERSON WHO LACKS JUDGMENT OR WHO HAS FAILING MEMORY, A PERSON ADDICTED TO NARCOTICS, A PERSON WHO'S AN ALCOHOLIC.

HOW FINELY IN TERMS AS ASKED BY JUSTICE PARIENTE, IN TERMS OF THE ETHICAL RULES AND ISSUES THAT WE HAVE HERE, HOW FINELY ARE THOSE LINES RELEVANT? IN OTHER WORDS, IS THAT REALLY WHAT IS AT ISSUE WITH REFERENCE TO THE CONFLICT OF INTEREST IN OR SOME OF THESE OTHER ETHICAL VIOLATIONS?

WELL, THE -- I HAVE TROUBLE WITH THE REFEREE'S REPORT BECAUSE THE MANNER IN WHICH THERE WERE 10 OR 15 PAGES OF FACT AND THERE WERE VERY SIMPLE FINDINGS OF GUILT WITHOUT ATTACHING FACTS TO FINDINGS. SO I HAVE TROUBLE ADDRESSING THAT QUITE FRANKLY.

ISN'T THERE JUST SOME SORT OF AND I USE THE WORD GROSS IN ITS LARGE OR BROAD SENSE, SORT OF A GROSS APPEARANCE OF CONFLICT OR IMPROPRIETY IF A LAWYER ON THE ONE HAND IS ACTUALLY SEEKING FROM PHYSICIANS WRITTEN EVIDENCE THAT HIS CLIENT IS NOT COMPETENT TO PRESIDE OVER HIS OWN AFFAIRS, AND YET THE LAWYER ON THE OTHER HAND IS DRAFTING DOCUMENTS OR SECURING LOANS OR FINANCIAL REMUNERATION FROM THE SAME CLIENT ON THE BASIS THAT THE CLIENT IS COMPETENT TO PRESIDE OF HIS OWN AFFAIRS SNA AND IN FACT IS ACTING VOLITIONALLY? IN OTHER WORDS, WHO DO WE -- THERE'S A PROBLEM THERE, IS THERE NOT?

I THINK THERE'S AN APPEARANCE OF AN AN CONSISTENCY IF YOU DON'T LOOK CLOSELY AT WHAT HIS REPRESENTATIONS IN THE LETTER WERE TO THE FINANCIAL INSTITUTIONS AND WHAT THE TEST FOR TESTAMENTARY CAPACITY IS. I WOULD ALSO SUBMIT TO YOU THAT IN JULY OF 96 WHEN THE GIFT LETTER WAS SIGNED, THIS WAS NOT AN INSTRUMENT THAT WAS GIVING A GIFT. IT WAS SIMPLY AN INSTRUMENT THAT SHOWED DOAN ATIVE INTENT FOR IRS PURPOSES. SO AT THAT POINT IN TIME WHAT HE SIGNED WAS NOT AN INSTRUMENT THAT WAS A 418 VIOLATION IT WAS SOMETHING TO BE SHOWN TO THE IRS TO AVOID ESTATE TAX.

BUT THIS IS DONE YEARS AFTER YOUR CLIENT SECURED THE LETTERS OR AT LEAST THE FIRST OF THEM SAYING THE DECEASED IS NOT EVEN COMPETENT TO HANDLE HIS OWN AFFAIRS. THAT'S WHERE I'M HAVING -- IN OTHER WORDS, HOW CAN YOU RECONCILE THOSE THINGS WITH PROPER LEGAL CONDUCT UNDER THESE RULES?

I CONCEDE THERE IS A CONFLICT OF INTEREST IN THIS CASE. I THINK WE'VE SAID THAT IN OUR BRIEFS. BUT WITH RESPECT TO WHETHER OR NOT THOSE ARE IRRECONCILABLE, I DON'T BELIEVE THAT THEY ARE BECAUSE TESTAMENTARY CAPACITY IS FOCUSED ON THE PERSON'S STATE OF MIND ON THE DATE THEY EXECUTE THE TESTAMENTARY DOCUMENT. IN THIS CASE WHEN HE SIGNED HIS WILL IN 1993, MAY '93, GIVING ALL HIS PROPERTY TO MR. DANN, THAT'S WHEN THAT -- AT THAT POINT IN TIME IF HE HAD TESTAMENTARY CAPACITY IT DOESN'T MATTER IF THE 94 DR. ELLIOTT SAYS HE'S INCAPACITATED. THE INCAPACITY DOES NOT EQUAL TESTAMENTARY CAPACITY. I THINK THAT'S THE PROBLEM IN THIS CASE, IS THAT THE FLORIDA BAR, THE GRIEVANCE COMMITTEE AND THE REFEREE HAD TROUBLE RECONCILING WHAT REALLY ARE DIFFERENT STANDARDS. THE EVIDENCE IS CLEAR HE HAD TESTAMENTARY CAPACITY IN MAY OF 1993 WHEN HE SIGNED THE DOCUMENT THAT LEFT EVERYTHING TO MR. DANN.

LET ME ASK YOU ABOUT THE WILL. HOW DID -- I'M NOT SURE I UNDERSTAND EXACTLY MR. DANN'S AN VAUCHLT IN GETTING THE OTHER LAWYER TO DRAW UP THIS WILL THAT LEFT EVERYTHING TO HIM. HOW DID MR. DANN APPROACH THIS GUY AND WHAT DID HE TELL HIM?

ACCORDING TO THE TESTIMONY IN THE CASE, MR. VASIC TOLD MR. DANN HE WANTED TO LEAVE HIM HIS PROPERTY.

THIS IS FROM MR. DANN.

THIS IS FROM MR. DANN AND THIS CONVERSATION IS SOMETIME OSTENSIBLY IN 1993 EARLY SPRING OF '93. AT THAT TIME MR. DANN SAYS, I CAN'T DO THAT FOR YOU, BECAUSE I'M NOT ALLOWED TO DRAFT THAT DOCUMENT. AND HE SAYS, BUT I CAN GIVE YOU THE NAMES OF THREE AV RATED PROBATE LAWYERS. YOU PICK A LAWYER. HE GIVES HIM THREE NAMES. MR. VASIC PICKS WILLIAM GRIFFIN, AN A-B RATED PROBATE LAWYER. AT THAT POINT IN TIME MR. VOSTIC IS 89 YEARS OLD I BELIEVE. MR. DANN CALLS MR. GRIFFIN AND SAYS ACCORDING TO THE RECORD OF EVIDENCE I HAVE A CLIENT WHO NEEDS AMENDMENTS TO DOCUMENTS. I HAVE A CONFLICT. I CAN'T DO IT. WILL YOU PLEASE GO SEE HIM AT THE ALF WHERE HE'S LIVING. MR. GRIFFIN GOES THERE, SPENDS AN HOUR INTERVIEWING HIM, IS PERSUADED THAT HE HAS TESTAMENTARY CAPACITY BY ASKING HIM QUESTIONS AND TALKING TO HIM AND ASKING QUESTIONS DIRECTED TO THE THREE PRONGS OF TESTAMENTARY CAPACITY. HE GOES BACK AND DRAFTS THE DOCUMENT AT HIS OFFICE. MR. DANN IS NOT PRESENT. ON THE FIRST VISIT. ON THE SECOND VISIT MR. DANN IS NOT PRESENT. MR. GRIFFIN GOES BACK TO THE SECRETARY WHO WATCHES THE EXCHANGE BETWEEN MR. GRIFFIN AND MR. VOSTIC. HE INDICATES THAT'S WHAT HE WANTS TO DO, THAT'S HOW HE WANTS TO LEAVE HIS PROPERTY, HE SIGNS.

AT THAT POINT HAVE THE LETTERS THAT WERE REFERRED TO, THE LETTERS FROM THE DOCTORS BEEN OBTAINED?

NO, MA'AM, NO, MA'AM. SO MR. GRIFFIN MAKES THE SAME TYPE OF DETERMINATION THAT LAWYERS MAKE EVERY DAY WHEN THEY GO SEE ELDERLY PEOPLE TO WRITE WILLS.

DID GRIFFIN TESTIFY IT WAS HIS UNDERSTANDING THAT THERE WAS ALREADY AN ARRANGEMENT BETWEEN --

HIS TESTIMONY WAS CONFUSING.

HOW DID THE REFEREE RECONCILE THAT CONFUSION? IN OTHER WORDS, WHAT -- DID HE MAKE A FINDING IN HIS ORDER WITH REFERENCE TO WHAT THE TESTIMONY WAS?

I THINK HE MAKES REFERENCE TO THE FACT MR. GRIFFIN SAID SOMETHING TO THE EFFECT THAT WELL, HE WAS ALREADY THE BENEFICIARY SO I REALLY WASN'T -- IT WASN'T A SIGNIFICANT CHANGE OR WORDS TO THAT EFFECT.

IS THAT RELEVANT TO THE FINDINGS, THE ULTIMATE FINDINGS, WITH REFERENCE TO THE VIOLATIONS THAT PARTICULAR ONE, THAT THE LAWYER --

AS TO WHETHER OR NOT MR. VOSTIC HAD TESTAMENTARY CAPACITY? I DON'T THINK IT IS IF YOU READ ALL THE CASE THAT WERE CITED. BECAUSE THE COURTS HAVE CONSISTENTLY REQUIRED A VERY LOW LEVEL OF FUNCTIONING BEFORE THEY THROW OUT A WILL. IT'S A FACTOR. I WOULDN'T TELL YOU I DON'T THINK IT'S A FACTOR IN MR. GRIFFIN'S DETERMINATION BUT MR. GRIFFIN WAS QUITE SURE THERE WAS NOTHING WRONG WITH THIS MAN IN TERMS OF TESTAMENTARY CAPACITY AND I WOULD ADD THAT MR. GRIFFIN WENT BEFORE THE VERY SAME GRIEVANCE COMMITTEE AND THEY JUDGED HIS CONDUCT ON IF HE SUFFICIENTLY INTERVIEWED THIS PERSON, IF HE DID ANYTHING WRONG IN MAKING THIS DETERMINATION.

DID MR. GRIFFIN ACTUALLY SAY WHERE HE GOT THE INFORMATION THAT MR. DANN WAS ALREADY A PART OF THIS WILL?

OR HIS TESTAMENTARY --

I DON'T KNOW IF HE SAID IT. WHAT CAME THROUGH WAS THAT IT WAS HIS UNDERSTANDING FROM THE OTHER DOCUMENTS. BECAUSE I THINK HE WAS -- HE HAD POSSESSION OF THE DOCUMENTS THAT HE SUBSEQUENTLY AMENDED BECAUSE HE AMENDED AN EXISTING TRUST AND WILL.

EXACTLY WHAT DO YOU SEE YOUR CLIENT AS BEING GUILTY OF? ANYTHING? EXACTLY WHAT DO YOU SEE?

I THINK THAT HE IN BORROWING THE MONEY WITHOUT GETTING OUTSIDE COUNSEL INVOLVED, EVEN THOUGH THE LOAN WAS SECURED WITH PROPERTY, MORTGAGE ON PROPERTY, AND IT WAS AT A FAIR INTEREST RATE ACCORDING TO MR. LOUIE ADCOCK, THE EXPERT FOR THE BAR, THAT HE PROBABLY WOULDN'T BE HERE, THOUGH HE'S NOT BE HERE, THOUGH HE WOULDN'T BE HERE THROUGH ME IF HE HAD GOTTEN ANOTHER LAWYER TO ANALYZE THAT BUSINESS TRANSACTION. SO I THINK THERE'S A TECHNICAL VIOLATION OF 418 A.

DO YOU THINK THERE WAS ANY OVERREACHING HERE?

I DON'T THINK THERE'S ANY EVIDENCE OF IT WHATSOEVER. I THINK WHAT HAS BOTHERED PEOPLE CONSISTENTLY IN THIS CASE AND MY CO-COUNSEL WHO'S NOW DECEASED RICHARD EARL, CONSISTENTLY SAID IS BECAUSE IT'S FOUNDY. THIS GENTLEMAN HAD NO KNOWN FAMILY. THE ONLY THING HE CHERISHED IN THE WORLD WAS MONEY. WHEN FILL DANN HAD HIS MONEY FOR A YEAR HIS MONEY GREW FROM $900,000 TO WELL OVER A MILLION DOLLARS. THIS WAS THIS OLD GENTLEMAN'S LIFEBLOOD AND HAD BEEN HIS ENTIRE LIFE. SO HIS ALLEGIANCE WAS TO SOMEBODY THAT COULD MAKE HIS MONEY GROW.

HOW DID THE NATURAL BENEFICIARY SORT OF FADE OUT OF THE PICTURE? WHAT HAPPENED TO NEPHEWS OR WHAT HAVE YOU?

THERE WERE NONE THAT WERE KNOWN. THERE WERE NONE LOCALLY. I DON'T THINK THERE WERE REFERENCE TO ANY OF THE BENEFICIARIES IN THIS RECORD. OTHER THINGS HAVE HAPPENED SINCE THE DISCIPLINARY TRIAL BUT THAT'S OUTSIDE THE RECORD. IF ASKED, I'LL ANSWER.

BUT WEREN'T THERE SOME PEOPLE WHO WERE INVOLVED WITH HIS LIVE-IN GIRLFRIEND?

THAT'S CORRECT. THERE WAS -- HE HAD A LIFE PARTNER FOR 40 SOME-ODD YEARS. AND SHE HAD A DAUGHTER, WHO ALSO HAD A DAUGHTER, SO HER GRANDDAUGHTER AND GRANDSON I'M HAD SOME ININVOLVEMENT WITH THEM BUT IT WAS VERY SPARSE AFTER THEY MOVED HIM BACK TO SAINT PETITIONER'S BERG IN LATE 1991 OR 1992. THEY NEVER CALLED HIM AGAIN. THEY NEVER WENT TO SEE HIM AGAIN EXCEPT ONE OCCASION AT MR. DANN'S REQUEST. THERE WAS NO INTERACTION FOR THE LAST FIVE AND A HALF TO SIX YEARS OF THIS MAN'S LIFE WITH THESE PEOPLE. THEY WERE NOT CLOSE TO HIM. HE WAS A MIZER AND WOULDN'T SPEND MONEY ON THEIR GRANDMOTHER.

BUT IN 1990 THEY WERE STILL ACTIVE IN HIS AFFAIRS, HELPING HIM TO MOVE INTO APARTMENTS AND THIS TYPE OF THING, WERE THEY NOT?

THEY WERE ACTIVE UNTIL --

CONCERNED ABOUT HIS WELFARE.

THEY WERE ACTIVE IN HELPING HIM MOVE FROM ORLANDO BACK TO ST. PETERS BURG AFTER THE DEATH O OF THE GRANDMOTHER. THEY WERE COMPLETELY AND UTTERLY INACTIVE AND DISINTERESTED AFTER THAT POINT IN TIME.

YOU SAY YOU THINK THERE WAS A PROBLEM PERHAPS WITH THE LOANS BUT NOT ANY OF THE OTHER -- THE GIFTS OR THE OTHER FINANCIAL --

FROM ESTATE PLANNING STANDPOINT, IT MAKES SENSE AS TRUSTEE TO DO GIFTING TO SAVE THE ESTATE TAX MONEY. AND AGAIN, WHAT'S BOTHER SOME I GUESS TO EVERYBODY THAT'S SEEN THIS CASE IS THAT IN ADDITION TO THE ESTATE BENEFITING AND THE GRANTOR'S WISHES BEING CARRIED OUT BY AVOIDING ESTATE TAXES, THE PERSON WHO BENEFITED WAS FILL DANN. BUT IN THAT RESPECT --

WERE THERE OTHER PERSONS THE GIFTS WERE MADE TO?

JUST TO MR. DANN'S FAMILY.

IN OTHER WORDS, AND DID THE DECEASED HAVE A RELATIONSHIP WITH MR. DANN'S FAMILY?

WELL, NO I MEAN, HE EXPRESSED AN INTEREST TO MR. DANN IN HIS FAMILY WHEN HE'D COME TO HIS OFFICE. HE'D SEE PHOTOGRAPHS BUT NO, NOT REALLY. BUT IN THAT RESPECT, I THINK THE IMPORTANT THING TO KEEP YOUR EYE ON IS JUST BECAUSE MR. DANN BENEFITED DIDN'T MAKE THAT NONBENEFICIAL TO THE GRANTOR AND TO HIS WISHES AND TO AVOID ESTATE TAX. IT WOULD HAVE BEEN TERRIBLY ILLOGICAL ESTATE PLANNING TO NOT MAKE GIFTS AND PAY EXTRA TAX SIMPLY BECAUSE MR. DANN WAS ALSO GOING TO BENEFIT.

YOU'VE USED UP YOUR TIME.

OKAY. DO I HAVE REBUTTAL TIME?

NO. YOU'VE USED YOUR REBUTTAL TIME.

THANK YOU.

MAY IT PLEASE THE COURT, BRETT GEER, I'M REPRESENTING THE FLORIDA BAR. WHAT IS PARTICULARLY RELEVANT ABOUT MR. VOSTIC'S MAENTAL STATE FROM THE BAR'S PERSPECTIVE AND MOVING THAT HE WAS MENTALLY INCOMPETENT AT ALL TIMES DURING THE LAWYER-CLIENT RELATIONSHIP IS THE KNOWLEDGE THAT THE RESPONDENT HAD OF THAT MENTAL STATE. I BELIEVE JUSTICE ANSTEAD ASKED IF THERE WAS SOME MEDICAL EVIDENCE RELATING TO INCAPACITY EARLY ON. AND THERE CERTAINLY IS. I WOULD REFER THE COURT TO BAR EXHIBIT 30-A, THAT'S THE ADMITTING DOCUMENT ON MR. VOSTIC TO THE LAURELS REHABILITATION CENTER IN WHICH HE WAS DIAGNOSED OF HAVING DIFFICULT MEN SHAH ON HIS ADMITTANCE, PRIOR TO THE ON SET O OF THE LAWYER-CLIENT RELATIONSHIP THAT ENSUED SHORTLY THEREAFTER.

WHAT WAS THE DATE OF ADMISSION?

THAT DATE IS JUNE 4TH OF 1992.

WHEN WAS THE LAWYER-CLIENT RELATIONSHIP?

SOME THREE WEEKS LATER WHEN MINNIE SMITH BASICALLY ABOUT DIFFICULT KATD HER POWER OF ATTORNEY TO MR. DANN AND MR. DANN PURSUANT TO THAT DELEGATED AUTHORITY BECAME MR. VASIC'S ATTORNEY.

DO WE KNOW WHETHER MR. DANN WAS PRIVY TO THESE RECORDS AND THE ADMITTING DIAGNOSIS FOR INSTANCE?

WE DO NOT BUT THERE'S SIGNIFICANT RECORD EVIDENCE REGARDING MR. DANN'S PERSONAL KNOWLEDGE OF CERTAIN FACTORS. THE VERY FIRST DAY, WHICH WAS THE DAY PRIOR TO THAT, JUNE 3rd, OF 1992, MR. DANN EXECUTED A VERY LIMITED REPRESENTAL BASIS PURSUANT TO MINNIE SMITH'S REQUEST FOR POWER OF ATTORNEY. HE DRAFTED THAT ATTORNEY, MET WITH MR. VASIC AND ASKED HIM IF HE KNEW WHO THE PRESIDENT OF THE UNITED STATES WAS AND HE DID NOT KNOW. HE COULD NOT ANSWER.

BUT CAN SOMEBODY AND I GUESS NOW WE'RE GETTING BACK TO WHICH RULE VIOLATIONS THIS IS SIGNIFICANT TO, BUT SOMEONE CAN HAVE THE CAPACITY TO UNDERSTAND THINGS ONE DAY AND BE LUCID ESPECIALLY IF YOU HAVE ALZHEIMER'S AND NOT BE COGENT THE NEXT DAY. THERE ARE CERTAINLY PEOPLE IN THEIR LATE 80s AS WELL AS IN THEIR EARLY 20s THAT DON'T KNOW WHO THE PRESIDENT OF THE UNITED STATES. SO THAT ALONE DOESN'T GIVE SOMEBODY THE DIAGNOSIS OF EITHER THEY ARE MENTALLY INCOMPETENT OR THEY LACKED TESTAMENTARY CAPACITY. IN TERMS OF -- BECAUSE I'M HAVING TROUBLE UNDERSTANDING WHICH RULE VIOLATION MR. VOSIAK'S MEDICAL CONDITION RELATED TO. LET'S ASSUME HE WAS COMPETENT THE WHOLE TIME THROUGHOUT THIS. MAYBE HE HAD MOMENTS OF DIMENTIA. ACCORDING TO THE BAR WOULD MR. DANN STILL BE GUILTY OF ENUMERATED RULE VIOLATION THAT WERE FOUND EVEN IF MR. VOSIAK WAS COMPETENT?

YES, JUDGE. AND I THINK THAT GETS TO YOUR PRIOR QUESTION TO MR. TOZIAN REGARDING WHAT'S THE TRUE RELEVANCE O OF THE MENTAL INCAPACITY SPECIFIC THINK TESTAMENTARY CAPACITY. THERE ARE TWO LEGAL PRESUMPTIONS. ONE IS THE PRESUMPTION OF UNDUE INFLUENCE WHEN UNDER IN RE CARPENTER AND ZINZERV GREGORY WHERE THE RESPONDENT MR. DANN IS ACTIVE IN THE PROCUREMENT OF THE MES TESTAMENTARY INSTRUMENT WHEREBY HE HAS A BENEFICIAL INTEREST AND IN FACT BECOMES THE SOLE BENEFICIARY OF HIS ESTATE. THAT CAN HAPPEN INDEPENDENT OF ANY LACK OF TESTAMENTARY CAPACITY. THAT CAN HAPPEN WITH A COMPLETELY COMPETENT PERSON. THE SECOND LEGAL PRESUMPTION THAT OCCURS IN THIS CASE INVOLVES THE ASPECT OF A LUCID INTERVAL AS YOU HAVE JUST REFERRED TO. THAT IS WHY IT WAS NECESSARY AT TRIAL TO RECONSTRUCT MR. VOSIAK'S LIFE, HIS PERSONALITY, HIS CHARACTER IN ORDER TO PROVE HIS MENTAL DISABILITY IN A GENERAL SENSE AT ALL TIMES DURING THE LAWYER-CLIENT RELATIONSHIP. AND THE BAR DID PROVE THAT AS THE REFEREE FOUND BY CLEAR AND CONVINCING EVIDENCE.

ISN'T THERE A PROBLEM WITH HIS -- IF THE BAR'S CASE WAS PREDICATED IN LARGE PART ON WHAT IN RECONSTRUCTING MR. VOSIAK'S MENTAL STATE, THEN THE -- WHETHER IT'S RECANTATION OR THE SEEMING INCONSISTENCY WITH MS. GOLD STONE'S TESTIMONY, SHOULDN'T THAT BE RECONSIDERED THEN BY THE REFEREE? I CAN'T UNDERSTAND -- THE REFEREE SPENDS PAGES TALKING ABOUT MR. VOSIAK AND HIS MENTAL STATE. BUT AS WAS POINTED OUT DOESN'T RELATE AS TO THE RULE VIOLATIONS. IT SEEMS THAT THE REFEREE WAS VERY CONVINCED THAT THERE WAS SOME SIGNIFICANT MENTAL DEFICIENCIES AND SOMEHOW THAT THESE WERE THEREFORE SIGNIFICANT TO THE FINDINGS. SO IF THAT'S SO, THEN SHOULDN'T THIS GO BACK FOR FURTHER RECONSIDERATION BY THE REFEREE IN LIGHT OF WHAT APPARENTLY MS. GOLDSTONE HAS TOLD THE STATE ATTORNEY'S OFFICE?

I DON'T BELIEVE SO. YOUR HONOR, THIS CASE HAS BEEN TRIED AND THERE WERE SEVERAL DAYS OF TESTIMONY INVOLVING SOME 19 WITNESSES. MS. GOLDSTONE WAS SUBJECT TO A FULL AND VIGOROUS CROSS-EXAMINATION AT THAT TIME.

WAS SHE CROSS-EXAMINED ABOUT THE STATEMENTS GIVEN TO THE STATE ATTORNEY THOUGH?

NO, THOSE STATEMENTS OCCURRED LATER. AND WHY PEOPLE WOULD GIVE STATEMENTS AFTER THE FACT IN A NONADJUDICATORY PROCEEDING OR A NONADVERSARIAL PROCEEDING, WHO KNOWS? IT'S THE BAR'S POSITION THAT'S WHY WE HAVE TRIALS. THERE COULD BE ANY NUMBER OF REASONS WHY -- AND WE DON'T EVEN KNOW THAT THAT STATEMENT IS CORRECT. WHAT WE HAVE IS A HEARSAY RETELLING, FILTERED THROUGH SOMEONE ELSE, AN INTERVIEWER, WHO --

BUT IS THE BAR SUGGESTING THAT THERE'S NOT AT LEAST A SERIOUS QUESTION WHEN THE STATE ATTORNEY PRESENTS FILES AND THE TESTIMONY OF A WITNESS WHO APPEARS TO BE KEY IN THE CASE, THAT THE BAR IS PROSECUTING THAT APPEARS THAT THERE'S SOME MISLEADING TESTIMONY? IT MAY BE FAR GREATER THAN MISLEADING. IS THE BAR NOT CONCERNED WITH THAT? WE'VE ALREADY HAD A TRIAL SO LET'S DON'T WORRY ABOUT IT?

IN THE CONTEXT OF THIS CASE, ALL OF THE FACTUAL EVIDENCE AND THE BAR'S OPINION EVIDENCE LEAD A REASONABLE FACT FINDER TO THE REASONABLE INFERENCE THAT MR. VOSIAK WAS AT ALL TIMES SIGNIFICANTLY IMPAIRED FROM A COGNITIVE STANDPOINT. HOW THAT FACTORS INTO THIS CASE AND THE RULE VIOLATIONS IS UNDER RULE 4-1.14, THE CLIENT UNDER DISABILITY RULE. AND WHAT THAT -- THE BAR'S POSITION IS THAT THE PARTICULARLY EGG GREEJS ASPECT OF THIS CASE IS THAT MR. DANN KNEW HIS CLIENT WAS IMPAIRED FROM THE INDEPENDENT WRITTEN DOCUMENTATION THAT MS. GOLDSTONE MADE CONTEMPORANEOUS WITH THE EVENTS THEMSELVES. NOW, WHAT STATEMENTS SHE MIGHT HAVE MADE THAT HE WAS POSSIBLY LUCID ON CERTAIN DAYS AND WORSE ON OTHER DAYS, THE BAR DOES NOT BELIEVE WOULD REQUIRE ANY REMAND BECAUSE OF THE MOUNTAIN OF EVIDENCE SUGGESTING FACTUAL AND OPINION EVIDENCE SUGGESTING MR. VOSIAK'S AIM PARMT. AND WHAT'S PARTICULARLY APPALLING IN THIS CASE.

THE MOUNTAIN OF EVIDENCE YOU REFER TO AS SHOWING IMPAIRMENT. BECAUSE THE PICTURE I'M GETTING IS HE HAD PERIODS WHEN HE WAS LUCID AND HE HAD OTHER PERIODS WHEN HE WAS NOT. AND WHAT IS THIS MOUNTAIN OF EVIDENCE YOU REFERRED TO THAT SAYS THAT -- ARE YOU SAYING HE WAS INCOMPETENT? WHAT WAS HE AS FAR AS THE BAR IS CONCERNED?

THE BAR PUT ON EVIDENCE, SIGNIFICANT EVIDENCE, BASICALLY RECONSTRUCTING MR. VOSIAK'S LIFE TO SHOW THAT BY THE TIME HE MET MR. DANN, HE WAS SIGNIFICANTLY MENTALLY IMPAIRED. THE PURPOSE OF DOING THAT WAS TO ESTABLISH HIS INCAPACITY IN A GENERAL SENSE.

WHAT WAS THIS EVIDENCE TO SHOW HE WAS SIGNIFICANTLY IMPAIRED? HE DIDN'T KNOW THE PRESIDENT AT THE TIME AND HE LIVED A VERY FRUGAL LIFE. OVER AND ABOVE THAT, WHAT DID THE BAR PUT ON?

WELL, AS THE REPORT INDICATES FOR A CERTAIN PERIOD OF HIS LIFE MOST OF HIS LIFE, HE WAS A VERY FRUGAL MAN AND INDEED A NOTORIOUS MIZER. CERTAIN EVENTS LATER IN HIS LIFE BEFORE HE MET MR. DANN SEEMED TO CHANGE THAT. HE WAS EXTREMELY SECRETIVE ABOUT HIS WEALTH AND THE FACT HE WAS WEALTHY. IN FACT, THOSE CLOSEST TO HIM DIDN'T KNOW THAT. BUT AT A CERTAIN POINT IN TIME IN 1991, HE BEGINS TO LOSE THE ABILITY TO KEEP THAT SECRET. PEOPLE THAT ORDINARILY WOULD NOT KNOW THAT BECOME KNOWLEDGEABLE OF HIS WEALTH, AND BEGIN TO EXPLOIT HIM. AND IT WAS THE BAR'S EXPERT'S OPINION THAT THAT SIGNALED -- THAT FUNDAMENTAL CHANGE IN HIS ABILITY TO WITHHOLD HIS SECRETS OR HIS WEALTH FROM OTHERS AND HIS ABILITY TO MANAGE AND CONTROL THAT SIGNALED A CHANGE IN EFFECT IN HIS PERSONALITY SUCH THAT IT WAS A HALLMARK OF DIMENTIA.

WELL, PEOPLE CHANGE AS THEY GET OLDER. THIS IS NOT NECESSARILY FIND THAT THEY'RE DIMINISHED.

HE LOST ALL OF THE CERTIFICATES OF OWNERSHIP THAT PROVED HIS WEALTH BY THE TIME --

HE WOULD GO TO THE BANK EVERY DAY AND CHECK ON HIS WEALTH APPARENTLY. WASN'T THAT WHY HE MOVED IN THIS PARTICULAR PLACE SO HE'D BE CLOSE TO THE BANK?

HE HAD A HABIT OF VISITING HIS BANKS EVERY DAY. HIS MONEY AND THE CONTROL OF HIS MONEY WAS EXTREMELY IMPORTANT TO HIM WHICH WAS WHY WHEN HE LOST THE ABILITY TO CONTROL HIS MONEY AND TO KEEP THAT FROM OTHERS WAS INDICATIVE OF LOSING CONTROL OVER HIS SANITY.

WHAT WAS THE MEDICAL EVIDENCE PUT ON BY THE BAR THAT WAS DEMENTED? WHAT WAS THE EXTENT OF THE MEDICAL EVIDENCE.

THE NURSING NOTES FROM THE LAURELS REHABILITATION CENTER WHERE HE WAS DELUSIONAL AND HAD LOUIS NA TORE AFTER TWO INVASIVE PROCEDURES. THE MEDICAL EXPERT TESTIFIED THAT PEOPLE WHO HAVE DEMINTION ARE MORE PRONE TO WHAT IS CALLED A DELIR ARE IUM FROM SURGICAL PROCEDURES.

BUT THAT HAPPENS AND THAT COULD HAPPEN TO MANY ELDERLY PEOPLE WHO UNDERGO SURGERY. BUT THAT'S NOT A -- DOESN'T LAST THEN FOR YEARS. IT MAY NOT. OR IT MAY. DID YOU HAVE TESTIMONY THAT WHAT THIS GENTLEMAN THEN HAD FROM THERE ON WAS A COMPLETE INCAPACITY TO DO ANYTHING ON HIS OWN? THAT HE TOTALLY LACKED THE MENTAL COMPETENCE SO THAT HE NEEDED A GUARDIAN TO BE APPOINTED? WAS THERE THAT TESTIMONY?

WELL, THE RESPONDENT, MR. DANN, IMMEDIATELY UPON THE INITIATION OF THE LAWYER-CLIENT RELATIONSHIP, BEHAVED IN ALL RESPECTS LIKE HIS CLIENT WAS IN FACT MENTAL I INCAPACITATED TO HANDLE HIS OWN AFFAIRS AND FROM THAT MOINT ON MR. VOSIAK WAS TOTALLY DEPENDENT FOR ALL HIS NEEDS UPON MR. DANN AND HIS STAFF. MS. GOLD STONE BECAME THE PERSON WHO WAS HIS CONTACT. MS. GOLDSTONE BECAME RESPONSIBLE FOR ALL OF HIS DAILY LIVING, AND SHE BECAME THE PERSON THAT HE WAS MOST FAMILIAR WITH. AND YET IF YOU LOOK AT HER MEMOS IN THE FILE, MANY TIMES HE DOESN'T KNOW WHO SHE IS. HE CAN'T TELL WHETHER OR NOT WHAT GENDER SHE IS. HE DOESN'T KNOW WHO MR. DANN IS.

IS THAT GOING BACK TO JUSTICE SHAW'S QUESTIONS, IN ADDITION TO THE NURSING NOTES MS. GOLDSTONE WAS A SIGNIFICANT WITNESS FOR THE BAR ON THE ISSUE OF CONTINUING INCOMPETENCE OVER A SIGNIFICANT PERIOD OF TIME, CORRECT?

YES.

GOING BACK TO THE FACT THEN, DOES NOT THAT HER TESTIMONY OR HER STATEMENTS WHICH HAS NOW BEEN GIVEN TO THE STATE ATTORNEY AND HAS NOW BEEN TURNED OVER, WAS JUST TURNED OVER, SEEMS TO ME TO BE, IF IT'S CORRECT, TO BE A PRETTY SUBSTANTIAL CHANGE IN HER TESTIMONY ABOUT WHETHER THIS GENTLEMAN WAS IMPAIRED CONTINUOUSLY OR ONLY INTERMITTENTLY OVER A PERIOD OF TIME. HOW THAT AFFECTS THE BAR'S CASE, THERE MAY STILL BE SUBSTANTIAL RULE VIOLATIONS HERE, BUT I GUESS WHAT I'M CONCERNED WITH AS FAR AS OUR EVALUATING THE APPROPRIATE DISCIPLINE, IT MATTERS FIRST OF ALL WHETHER MR. DANN, WHETHER HE KNEW OR SHOULD HAVE KNOWN. KNOWING IS DIFFERENT THAN SHOULD HAVE KNOWN AND THE REFEREE DIDN'T FIND KNOWING. HE FOUND KNEW OR SHOULD HAVE KNOWN. SO THAT'S IMPORTANT FOR SEVERAL OF THE VERY SIGNIFICANT RULE VIOLATIONS. AND WHAT MS. GOLDSTONE OBSERVED OVER THAT PERIOD OF TIME WAS SIGNIFICANT TO THE BAR'S CASE. SO JUST I JUST WANT TO UNDERSTAND WHY IF IT'S IMPORTANT TO THE BAR THAT WHAT MAKES THIS PARTICULARLY EGREGIOUS IS A MENTALLY INCOMPETENT PERSON OVER A PERIOD OF TIME THAT WAS DEALT WITH IN AN IMPROPER WAY. THAT IS THE BAR'S POSITION.

CORRECT.

WHY WE WOULDN'T WANT THE REFEREE TO RE-EVALUATE THIS BOTH TO MAKE FINDINGS AS TO WHETHER MR. DANN KNEW VERSUS SHOULD HAVE KNOWN. AND EVALUATE WHAT THE IMPACT IS OF MS. GOLDSTONE'S NOW CHANGE OF TESTIMONY.

WELL, YOUR HONOR, UNDER THE CASE LAW IN THE STATE OF FLORIDA ONCE A TASTE TA OR'S MENTAL INCAPACITY IS PROVEN IN A GENERAL SENSE AND IT WAS IN THIS CASE, THE BURDEN SHIFTS TO THE PROPONENT OF THE SUBJECT DOCUMENT TO PROVE THAT AT THE DATE AND ON THE TIME OF EXECUTING THAT SUBJECT DOCUMENT THAT HE IN FACT WAS EXPERIENCING A LUCID INTERVAL AND THAT SIMPLY IS NOT PRESENT IN THE RECORD.

BUT YOU'RE ASKING THAT THIS GENTLEMAN BE DISBARRED. THAT'S WHAT THE BAR IS ASKING, CORRECT?

YES.

THAT IS MOST SUBSTANTIAL. YOU'RE EQUATING WHAT MR. DANN DID WITH THEFT, CORRECT?

MISAPPROPRIATING CLIENTS' FUNDS FROM THE ESTATE.

TAKING THINGS FROM A MENTALLY INCAPACITATED INDIVIDUAL. THAT'S WHAT THE BAR'S POSITION IS.

THAT HE KNEW HIS CLIENT WAS MENTALLY INCAPACITATED AND HE DEALT IMPROPERLY SOLELY FOR THE PURPOSE OF HIS OWN SELF-ENRICHMENT. THAT'S EXACTLY TRUE.

WITH THE CHIEF'S INDULGENCE COULD WE GIVE MR. TOZIAN A MINUTE OR TWO TO RESPROND WITH REFERENCE TO HIS MOTION TO REMAND THIS TO THE REFEREE, WITH ALLEGATIONS OF THE NEW EVIDENCE THAT WE'VE DISCUSSING WITH BAR'S COUNSEL?

THAT WOULD BE FINE. THANK YOU, COUNSEL.

THANK YOU.

JUST BRIEFLY, BUT COULD YOU -- YOU FILED A MOTION ALLEGING THAT YOU HAVE JUST RECENTLY HAD ACCESS TO THE STATE ATTORNEY'S FILES.

YES, SIR.

ONE OF THE CRITICAL WITNESSES APPEARS TO GIVE CONFLICTING TESTIMONY TO WHAT HER TESTIMONY WAS.

YES, SIR, SHE DID.

COULD YOU -- WE'VE ASKED A NUMBER OF QUESTIONS ABOUT THAT HERE. WHAT IS YOUR POSITION ON THAT?

WELL, OUR POSITION IS WE'D LIKE TO HAVE IT REMANDED BECAUSE THIS TESTIMONY IS INCONSISTENT WITH THE TESTIMONY THIS LADY PREVIOUSLY GAVE. IN ALL THESE INSTANCES WHERE DOCUMENTS WERE EXECUTED THERE IS NOT AN EYEWITNESS SAYING ON THAT DAY HE THOUGHT HE WAS CHARLES LINDBERGH OR ON THAT DAY HE SHOT HIS TELEVISION OR ON THAT DAY HE ACTED IMPROPERLY. WE HAVE A DOCTOR SAYING HE THINKS HE LACKED TESTAMENTARY CAPACITY. HE WOULD NOT RECOGNIZE THE THEORY ROF LUCIDITY. WHEN I ASKED HIM BETWEEN JUNE OF 92 AND THE TIME HE DIED DID HE EVER HAVE A DAY OF TESTAMENTARY CAPACITY ON A GOOD DAY HIS ANSWER IS AS GOOD AS MIND.

LET'S KEEP THE FOCUS NARROW. IS IT YOUR POSITION WE SHOULD REMAND TO IT THE REFEREE TO GIVE THE REFEREE AN OPPORTUNITY TO EVALUATE WHAT YOU CLAIM TO BE NEWLY DISCOVERED EVIDENCE MUCH IN THE WAY A MOTION FOR NEW TRIAL MIGHT BE FILED IN A TRIAL COURT?

YES, SIR. I WOULD LIKE IT TO BE REMANDED TOO FOR THE PURPOSE OF TRYING TO DETERMINE WHAT FACTS VIOLATED WHAT RULES. WE HAD A HARD TIME WRITING THESE BRIEFS.

WELL, BUT IN TERMS OF THIS WITNESS' TESTIMONY THAT THROUGH PUBLIC RECORDS DISCLOSURE THAT YOU HAVE, YOU'RE SEEKING A REMAND TO THE REFEREE TO EVALUATE THAT.

YES, SIR BECAUSE THAT WAS THE ONLY LIVE WITNESS THAT GAVE ANY TESTIMONY THAT HE MIGHT NOT BE OUT OF IT.

I THINK YOU'VE ANSWERED THE QUESTION, COUNSEL.

I JUST WANTED TO ASK HIM: WHAT DO WE REALLY HAVE? IS THERE A SWORN STATEMENT BY THIS WITNESS OR DO WE SIMPLY HAVE A SUMMARY ROF WHAT THIS WITNESS SAID THAT WAS INCLUDED WITH A SUMMARY OF OTHER WITNESSES' TESTIMONY?

I BELIEVE WE HAVE A TAPED STATEMENT. I HAVE NOT GOTTEN THAT YET. I WASN'T ABLE TO TALK TO THE INVESTIGATOR BUT I TALKED TO MS. GOLDSTONE. I TALKED TO HER ON THE TELEPHONE. CAN I COMMENT ON THIS?

YOU'VE ANSWERED THE QUESTION I ASKED.

THANK YOU.

THANK YOU.