132 So. 3d 165
Fla.2014Background
- The Florida Bar sought review of a referee's report finding MacNamara guilty of misconduct under Rules 4-1.4, 4-8.1, and 4-8.4(c) and recommended two years of probation with conditions.
- The misconduct arose from 2005-2006 in probate matters concerning the estate of Ms. Earl's deceased mother, including the filing (or alleged failure to file) an estate tax return with the IRS.
- Respondent sent an unsigned estate tax return to the IRS in December 2005 and described it as a duplicate, while evidence suggested the return was the first filing; the IRS later issued a tax refund based on the unsigned return.
- The Bar FOIA response indicated substantial missing IRS documents; Respondent contested, but the referee found he misrepresented the filing status to the Bar and to the IRS in multiple writings and testimony.
- Respondent admitted that the unsigned tax return he submitted in December 2005 was not properly filed, and he misrepresented to the probate court that a federal return had been filed and was under IRS review.
- The Court ultimately suspended Respondent for 90 days and placed him on two years of probation with specified conditions, approving the referee's findings of fact and guilt but disapproving the two-year probation-only sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Respondent violate the fiduciary and honesty rules in handling the estate tax filing? | Bar asserts Respondent filed misleading and false documents and statements. | MacNamara contends there is insufficient clear and convincing evidence of actual filing failure or dishonest motive. | Yes, violations proven; Respondent engaged in dishonesty and misrepresentation. |
| Whether Respondent's conduct justified discipline beyond probation—specifically, suspension or disbarment? | Bar seeks stronger sanction than probation due to repeated misrepresentations. | Respondent argues probation is sufficient given mitigating factors. | A suspension is warranted; probation alone insufficient. |
| Did the referee properly find the extent of harm and causation to the client and system? | Bar contends client and system were harmed by misrepresentations and delays. | Respondent argues there was no proven additional harm beyond the facts. | The conduct caused actual harm to the client and the administration of justice; harm established. |
Key Cases Cited
- Florida Bar v. Head, 84 So.3d 292 (Fla. 2012) (ninety-one-day suspension for false affidavit and related misrepresentations)
- Florida Bar v. Rotstein, 835 So.2d 241 (Fla. 2002) (dishonest backdated letter; egregious misconduct with deception)
- Florida Bar v. Hmielewski, 702 So.2d 218 (Fla. 1997) (three-year suspension for misrepresenting medical records and related deception)
- Florida Bar v. Rightmyer, 616 So.2d 953 (Fla. 1993) (discipline for officers of the court who knowingly corrupt the legal process)
- Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001) (emphasizes public trust and candor; similar concerns about dishonesty)
- Florida Bar v. Korones, 752 So.2d 586 (Fla. 2000) (dishonesty and candor violation; trust and integrity of the bar)
- Florida Bar v. Summers, 728 So.2d 739 (Fla. 1999) (disbarment reserved for most egregious misconduct)