The Florida Bar v. Jacqueline Marie Kinsella
260 So. 3d 1046
| Fla. | 2018Background
- Jacqueline M. Kinsella, admitted Feb. 2016, stole cash from Kohl’s registers on three occasions in Apr–May 2016 (total <$1,000). She pled no contest to one count of petit theft; adjudication withheld; served 12 months probation and completed restitution and other court-ordered conditions.
- The Florida Bar charged Kinsella; she admitted the factual allegations and rule violations and stipulated to guilt before the referee.
- The referee found multiple rule violations (including rules equivalent to misconduct, criminal conduct, and dishonesty), three aggravating factors, and seven mitigating factors, and recommended a 10-day suspension plus one year probation and costs.
- The Florida Supreme Court suspended Kinsella pending review, issued an order to show cause, and the Bar urged at least a 91-day rehabilitative suspension.
- The Court approved the referee’s guilt findings but, weighing mitigation and precedent, rejected the 10-day recommendation and imposed a three-year suspension (effective immediately) and ordered payment of Bar costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate disciplinary sanction for admitted thefts (non-law-related) | Bar: at least a 91‑day rehabilitative suspension. | Kinsella: accept referee’s 10‑day suspension and probation based on mitigation, remorse, and rehabilitation. | Court: three‑year suspension warranted (suspension, not disbarment), given mitigation but seriousness of theft. |
| Whether disbarment is required for theft unrelated to practice of law | Bar/Some dissenters: theft by an attorney supports disbarment based on Standards and precedent. | Majority/Respondent: mitigation, misdemeanor outcome, cooperation, and rehabilitation weigh against disbarment. | Court: disbarment not warranted; Standard 5.12 (suspension) applies rather than disbarment under Standard 5.1. |
| Weight of mitigating/aggravating factors | Bar: aggravation (dishonest motive, pattern, multiple offenses) supports harsher sanction. | Kinsella: seven mitigating factors (no prior discipline, personal/emotional problems, restitution, cooperation, remorse, etc.) justify leniency. | Court: accepts referee’s findings of both; substantial mitigation justified a heavy rehabilitative suspension rather than disbarment. |
| Role of criminal disposition in bar sanction | Bar/majority: criminal plea/outcome is relevant but not dispositive; court independently sets discipline. | Kinsella: misdemeanor plea, withheld adjudication and completed probation support leniency. | Court: considered criminal outcome (misdemeanor, withheld adjudication) as mitigating; nonetheless imposed three‑year suspension. |
Key Cases Cited
- Florida Bar v. Anderson, 594 So.2d 302 (Fla. 1992) (theft from employer led Court to impose disbarment in that case; used for comparison on seriousness)
- Florida Bar v. Del Pino, 955 So.2d 556 (Fla. 2007) (three‑year suspension imposed where attorney convicted of mail fraud and tax evasion; mitigation considered)
- Florida Bar v. De la Torre, 994 So.2d 1032 (Fla. 2008) (suspension for criminal convictions not related to law practice; substantial mitigation reduced recommended sanction)
- Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003) (theft of firm funds warranted long suspension; illustrates seriousness of employer/fund theft)
- Florida Bar v. Gilbert, 246 So.3d 196 (Fla. 2018) (disbarment for negligent supervision and trust‑account theft; cited to show harsher sanctions where client/public funds involved)