259 So. 3d 689
Fla.2018Background
- Kelley Andrea Bosecker was suspended for 45 days in May 2016 in a prior disciplinary matter and elected an early effective suspension from May 27 to July 11, 2016.
- The Florida Bar filed a petition for contempt and sought disbarment after alleging Bosecker failed to comply with notice requirements and continued practicing during suspension.
- Evidence and witness testimony showed Bosecker delayed or failed to notify clients, courts, and opposing counsel of her suspension, sent correspondence during the suspension, copied clients on emails to courts/opposing counsel, and assisted clients on several pending matters.
- Bosecker sought extensions to file the required Rule 3-5.1 affidavit and represented to the Court that notices had been sent when some had not been provided; she also asserted she was supervised/employed by other attorneys but no timely employer notice was given to the Bar.
- The referee found violations of Bar Rules 3-5.1(e) (suspension), 3-5.1(h) (notice), 3-6.1(d)(1) (prohibited direct client contact), and 4-8.4(c) (dishonesty/misrepresentation), and recommended disbarment; the Supreme Court approved guilt findings (except 3-6.1(c)) and disbarred Bosecker.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bosecker practiced law while suspended (Rule 3-5.1(e)) | Bosecker continued to assist clients, communicated with opposing counsel and court staff, and monitored cases during suspension. | Bosecker claimed she did not hold herself out as an attorney and only monitored cases or referred clients. | Held: Violation — substantial evidence shows she practiced while suspended. |
| Whether Bosecker failed to timely notify clients/courts/opposing counsel of suspension (Rule 3-5.1(h)) | Notices were provided weeks late or not at all, thwarting the rule’s purpose and preventing clients from protecting interests. | Bosecker claimed she sent required notices and sought extensions to finish the affidavit. | Held: Violation — she admitted furnishing notices late and misrepresented that all notices had been sent. |
| Whether employment notice was required / she violated employment notice rule (Rule 3-6.1(c) / (d)(1)) | Bar: No timely employer notice was given and she engaged in prohibited direct client contact while suspended. | Bosecker: Said she was employed/supervised by other attorneys (Pellegrino, Roebuck). | Held: 3-6.1(c) disapproved (notice is employer’s duty); 3-6.1(d)(1) — violation for direct client contact. |
| Whether Bosecker engaged in dishonesty or misrepresentation (Rule 4-8.4(c)) | She misrepresented to the Court she had sent all suspension notices and failed to correct that misstatement; she was dishonest in communications. | Bosecker argued mistake, lack of intent to deceive. | Held: Violation — Court found misrepresentation and dishonesty, intent inferred from actions. |
Key Cases Cited
- Frederick v. Florida Bar, 756 So. 2d 79 (Fla. 2000) (referee fact findings reviewed for substantial evidence)
- Jordan v. Florida Bar, 705 So. 2d 1387 (Fla. 1998) (same standard on review of referee findings)
- Tobkin v. Florida Bar, 944 So. 2d 219 (Fla. 2006) (referee credibility determinations given deference)
- Thomas v. Florida Bar, 582 So. 2d 1177 (Fla. 1991) (referee credibility guidance)
- Shoureas v. Florida Bar, 913 So. 2d 554 (Fla. 2005) (referee findings must support recommendations)
- Fredericks v. Florida Bar, 731 So. 2d 1249 (Fla. 1999) (referee may consider relevant evidence in disciplinary proceedings)
- D'Ambrosio v. Florida Bar, 25 So. 3d 1209 (Fla. 2009) (standard for admissibility and review of referee evidentiary rulings)
- Anderson v. Florida Bar, 538 So. 2d 852 (Fla. 1989) (Supreme Court reviews discipline de novo within standards)
- Temmer v. Florida Bar, 753 So. 2d 555 (Fla. 1999) (Court will not second-guess referee sanction if reasonable basis exists)
- Walkden v. Florida Bar, 950 So. 2d 407 (Fla. 2007) (cumulative misconduct treated more severely)
- Ticktin v. Florida Bar, 14 So. 3d 928 (Fla. 2009) (aggravating findings carry presumption of correctness)
- Forrester v. Florida Bar, 916 So. 2d 647 (Fla. 2005) (disbarment appropriate for practicing while suspended)
- Varner v. Florida Bar, 992 So. 2d 224 (Fla. 2008) (referee’s non-findings on mitigation presumed correct)
- Herman v. Florida Bar, 8 So. 3d 1100 (Fla. 2009) (presence of some evidence for mitigation does not require finding)
- Brown v. Florida Bar, 635 So. 2d 13 (Fla. 1994) (presumptive penalty for violating a prior disciplinary order is disbarment)
- Bern v. Florida Bar, 425 So. 2d 526 (Fla. 1982) (prior disciplinary history increases discipline)
- Norkin v. Florida Bar, 183 So. 3d 1018 (Fla. 2015) (disbarment for practicing while suspended)
- Lobasz v. Florida Bar, 64 So. 3d 1167 (Fla. 2011) (disbarment for similar misconduct)
- Greene v. Florida Bar, 589 So. 2d 281 (Fla. 1991) (disbarment where suspension order violated)
- Rood v. Florida Bar, 678 So. 2d 1277 (Fla. 1996) (disbarment for practicing during suspension)