249 So. 3d 538
Fla.2018Background
- Marcellus was subject to a 2010 family-court Final Order requiring him to either refinance the marital home into his name within 30 days or sell it; he stayed in the house and never completed refinancing.
- In March 2010 a family friend, Curt Francis, signed and notarized a mortgage-modification form purporting to be Marcellus’s ex-wife’s signature; Marcellus knew of the forgery and the modification was approved by the lender.
- The lender later sued for foreclosure after Marcellus defaulted; Gudger (the ex-wife) learned of the forgery only through the foreclosure and remained a defendant.
- Marcellus repeatedly failed to comply with family-court discovery orders and court orders to appear; the court issued sanctions, a daily fine, and a writ of bodily attachment for his failure to appear.
- The Florida Bar charged Marcellus with multiple ethics violations; the referee found violations of Bar Rules including dishonesty/fraud, discovery abuse, and disobeying tribunal orders.
- The Supreme Court of Florida approved the referee’s findings of misconduct, found multiple aggravating factors, and imposed an 18-month suspension (longer than the referee’s recommended one-year suspension).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marcellus committed misconduct by using/knowing of a forged mortgage modification | Bar: Marcellus knew of and used a forged signature to obtain modification; this shows dishonesty and deception | Marcellus: contested some factual findings; argued modification predated the Final Order or lacked intent to mislead | Court: affirmed referee — violation of rules prohibiting dishonesty and deceptive conduct (Rule 4-8.4(c)/(d)) |
| Whether failure to obey family-court discovery orders violated Bar rules | Bar: repeated noncompliance with orders and discovery amounted to intentional disobedience and discovery misconduct | Marcellus: claimed representation by counsel and lack of personal liability; argued lack of scienter for some rules | Court: affirmed referee — violations of discovery and tribunal-obedience rules (Rules 4-3.4(c),(d)) |
| Whether Marcellus’s failure to appear for show-cause hearing amounted to professional misconduct | Bar: knowing failure to appear after being ordered supports sanctionable disobedience and prejudice to administration of justice | Marcellus: asserted client-coverage conflicts and lack of notice excuse | Held: excuse rejected; conduct violated tribunal-obligation rules and warranted aggravation |
| Appropriate sanction for cumulative misconduct (forgery, discovery abuse, disobedience) | Bar: sought greater discipline than referee recommended | Marcellus: sought lighter sanction | Court: suspended Marcellus 18 months (disapproved referee’s 1-year recommendation) due to severity, repeated offenses, forgery, and failure to pay sanctions |
Key Cases Cited
- Florida Bar v. Bischoff, 212 So. 3d 312 (Fla. 2017) (one-year suspension for repeated discovery abuse and failure to comply with court orders)
- Florida Bar v. Rosenberg, 169 So. 3d 1155 (Fla. 2015) (one-year suspension for prolonged discovery noncompliance and refusal to obey court orders)
- Florida Bar v. Whitney, 132 So. 3d 1095 (Fla. 2013) (one-year suspension for failure to act for clients, discovery violations, and misrepresentations)
- Florida Bar v. Temmer, 753 So. 2d 555 (Fla. 1999) (review standard for judicial imposition of sanctions consistent with Bar standards)
- Florida Bar v. Anderson, 538 So. 2d 852 (Fla. 1989) (court has ultimate responsibility to determine appropriate discipline)
- Florida Bar v. Picon, 205 So. 3d 759 (Fla. 2016) (cumulative similar misconduct warrants heightened discipline)