Florida Bar v. Rousso
117 So. 3d 756
| Fla. | 2013Background
- Bar filed separate complaints Jan. 5, 2011 against Mark Rousso and Leonardo Roth; cases were consolidated and referred to a referee.
- Referee found that hundreds of millions passed through the firm’s trust account, with about $4.38 million missing by end of 2008.
- Bookkeeper embezzled funds; the referee found no clear and convincing evidence that respondents misappropriated or benefited from the disappearance.
- Respondents took steps after discovery (outside counsel, informal audit, funding from various sources, police cooperation, Bar hotline) which Bar argued were too little, too late.
- Deficits were covered by malpractice insurance, lines of credit, respondents’ funds, family loans, and a loan from client Yordi; Yordi’s loan was exchanged for a promissory note and later not repaid.
- Court approved findings of fact and evidence of violations but disapproved the referee’s suggested that respondents were not guilty of 5-1.1; ultimately disbarment was imposed at nunc pro tunc date of emergency suspensions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondents violated 5-1.1(a)(1) on commingling | Bar asserts commingling occurred | Respondents argue no violation | Guilty: commingling proven; rule 5-1.1 violated |
| Whether due process supported finding 4-8.4(c) | Complaints notified charges; right to defense preserved | Due process claimed not properly pled | Guilty: due process satisfied; 4-8.4(c) upheld |
| Appropriate sanction for misconduct | Disbarment warranted given serious misconduct | Suspensions sufficient based on record | Disbarments imposed; suspensions rejected |
| Whether equitable cost reduction was proper | Costs should reflect Bar audit time; equitable adjustment improper | Reduction fair due to time | Equitable adjustment disapproved; Bar awarded full costs of $70,826.23 |
Key Cases Cited
- Florida Bar v. Cox, 718 So.2d 788 (Fla. 1998) (commingling violations established for loan into trust account)
- Florida Bar v. Brownstein, 953 So.2d 502 (Fla. 2007) (multiple trust account comminglings; misappropriation context)
- Florida Bar v. Riggs, 944 So.2d 167 (Fla. 2006) (trust account failures; sanctions guidance)
- Florida Bar v. Whigham, 525 So.2d 873 (Fla. 1988) (trust account mismanagement; sanctions guidance)
- Florida Bar v. Nowacki, 697 So.2d 828 (Fla. 1997) (notice broad enough to include related misconduct)