350 So.3d 1229
Fla.2022Background
- Respondent Odiator Arugu represented George Rodriguez in divorce proceedings and served a notice of intent to subpoena records from Freedom Mortgage with a proposed subpoena attached.
- After the 10-day objection period expired, Arugu modified the subpoena to add three additional categories (credit reports, mortgage loan applications, and any power of attorney) and served the modified subpoena on Freedom.
- Opposing counsel Wade Luther emailed an objection, called the served subpoena “materially and substantially different,” and asked Arugu to withdraw it; Arugu did not withdraw or notify Freedom of the objection.
- Freedom produced many documents in response to the modified subpoena; the circuit court later found Arugu had improperly served a different subpoena than the one noticed.
- A referee recommended Arugu be found guilty of multiple Bar Rule violations and suspended for 60 days; the Florida Supreme Court approved guilt except for Rule 4-3.4(a), imposed a 91-day suspension, and awarded Bar costs of $3,098.57.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arugu violated Bar Rule 4-3.4(a) (obstructing access/altering evidence) | Bar: serving a modified subpoena after objection was deceitful and obstructive | Arugu: did not alter/destroy evidence; no obstruction alleged | Court: Disapproved referee as to 4-3.4(a); insufficient findings of obstruction or concealment |
| Whether Arugu violated Bar Rule 4-3.4(c) (knowingly disobey tribunal rules) | Bar: served a subpoena different from the noticed version in violation of Fam. L. R. P. 12.351 | Arugu: believed additions were permissible; lacked improper intent | Court: Violated 4-3.4(c); knowingly served a different subpoena after notice period |
| Whether Arugu violated Bar Rule 4-3.4(d) (frivolous discovery / failing to comply) | Bar: serving modified subpoena despite counsel’s objection and without court resolution was frivolous and improper | Arugu: claimed he served after learning additional items were needed; contested intent | Court: Violated 4-3.4(d); serving despite objection and without notifying nonparty was frivolous discovery conduct |
| Whether Arugu violated Bar Rules 4-4.1 and 4-8.4(c) (misrepresentation; dishonesty) | Bar: failing to inform Freedom of the objection misrepresented that production was required and was deceitful | Arugu: denied intentional misconduct; argued lack of improper motive | Court: Violated 4-4.1 and 4-8.4(c); conduct was knowing/dishonest or deceitful |
| Appropriate discipline | Bar: sought greater sanction than referee; misconduct merited significant suspension | Arugu: argued referee’s 60-day suspension was sufficient | Court: Suspended Arugu 91 days (effective 30 days after opinion unless waived), imposed costs, and required compliance with Bar rules on practice wrap-up |
Key Cases Cited
- Fla. Bar v. Gwynn, 94 So. 3d 425 (Fla. 2012) (standard for appellate review of referee factual findings)
- Fla. Bar v. Barrett, 897 So. 2d 1269 (Fla. 2005) (deference to referee factual findings)
- Fla. Bar v. Shoureas, 913 So. 2d 554 (Fla. 2005) (referee findings must support guilt recommendations)
- Fla. Bar v. Spear, 887 So. 2d 1242 (Fla. 2004) (standards for reviewing referee findings)
- Fla. Bar v. Germain, 957 So. 2d 613 (Fla. 2007) (burden on challenger to show lack of evidentiary support)
- Fla. Bar v. Broida, 574 So. 2d 83 (Fla. 1991) (discovery abuse can constitute Bar violations)
- Fla. Bar v. Scott, 39 So. 3d 309 (Fla. 2010) (omissions and partially true statements can violate Rule 4-4.1)
- Fla. Bar v. Head, 27 So. 3d 1 (Fla. 2010) (intent can be satisfied by deliberate or knowing conduct)
- Fla. Bar v. Berthiaume, 78 So. 3d 503 (Fla. 2011) (ninety-one day suspension for serving fraudulent subpoena; conduct destructive to legal system)
- Fla. Bar v. Picon, 205 So. 3d 759 (Fla. 2016) (appellate authority to review and impose appropriate sanctions)