We have for review a referee’s report recommending that respondent be found guilty of professional misconduct and suspended from the practice of law for ninety days. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons more fully explained below, we approve the referee’s findings of fact and recommendations as to guilt, but we disapprove the recommended discipline, and instead impose a ninety-one-day suspension.
FACTS
On April 1, 2008, The Florida Bar filed a four-count complaint against respondent, Mary Alice Gwynn, alleging various instances of misconduct relating to her representation of two clients in federal bankruptcy court matters. The complaint was referred for a hearing before a referee. A final hearing was held on August 9,10, and 12, 2010, and subsequently, the referee filed his Report of Referee on October 25, 2010. In his report, the referee made the following findings of fact.
First, the referee found that respondent had represented a client in the United
Next, the referee found that because of the many frivolous motions that respondent filed in the bankruptcy case, the bankruptcy judge entered an order, on April 26, 2006, finding that respondent had acted in bad faith. In the order, the bankruptcy judge set forth specific findings regarding the numerous instances in which respondent had acted dishonestly, incompetently, and in bad faith in the pending litigation. Specifically, the bankruptcy judge found that respondent had (1)'filed frivolous claims to harass her opponent and opposing counsel; (2) failed to research and verify claims she advanced in motions she filed with the court; (3) engaged in willful abuse of the judicial system; and (4) continually made allegations, both in pleadings filed with the court and in her testimony before the court, that were simply incorrect or false. The bankruptcy judge found that respondent’s conduct was “objectively unreasonable and vexatious” and “sufficiently reckless to warrant a finding of conduct tantamount to bad faith ... for the purpose of harassing her opponent.”
The referee further found that the bankruptcy court’s April 26, 2006, order imposed a $14,000 sanction against respondent and referred the matter to The Florida Bar for ethical review. The bankruptcy court’s order was affirmed by the United States District Court, Southern District of Florida, by order dated March 14, 2007. Based on these facts, the referee recommended that respondent be found guilty of violating Rules Regulating the Florida Bar 4-3.1 (lawyer shall not bring or defend a proceeding or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous); 4-3.3(a)(l) (lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 4-4.1(a) (in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person); 4-4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person); 4-8.4(a) (lawyer shall not violate or attempt to violate the Rules of Professional Conduct); 4-8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).
Finally, the referee found that despite the fact that respondent no longer represented any party in the case, she continued to file pleadings and papers with the federal bankruptcy court, and that on May 15, 2006, and the court entered an “Order Directing Mary Alice Gwynn, Esquire to Stop Filing Notices of Filing.” In this order, the bankruptcy judge found that
As for discipline, the referee recommended that respondent be suspended for ninety days and be required to pay the Bar’s costs. Respondent now seeks review of the referee’s findings of fact and recommendation as to discipline. The Bar has filed a cross-petition for review, seeking review of the referee’s recommendation as to discipline.
ANALYSIS
I. FACTUAL FINDINGS
With regard to a referee’s findings of fact, this Court has repeatedly stated that its review is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, the Court will not reweigh the evidence and substitute its judgment for that of the referee. See Fla. Bar v. Patrick,
Here, respondent first contends that the referee improperly relied on the bankruptcy court’s orders as the exclusive support for his findings of fact and thus did not make “independent” factual findings. On the issue of his reliance on the bankruptcy court orders, the referee stated in his report:
The most persuasive evidence is that advanced by the federal bankruptcy*429 judge, who conducted evidentiary hearings and thereafter, determined that respondent had engaged in the grave, and repeated misconduct he carefully outlined in three separate orders. I have taken judicial notice of these orders, and relied upon the facts set forth in these orders, in reaching my determination in this case. I have done this after confirming that the Supreme Court of Florida has made it abundantly clear that a referee in a Florida Bar disciplinary proceeding may consider and rely upon a federal court’s order and factual findings. In The Florida Bar v. Shankman [41 So.3d 166 ]2010 WL 2680248 (Fla. July 8, 2010),85 Fla. L. Weekly S445 , the respondent challenged the referee’s ruling taking judicial notice of a federal district court judge’s order and a magistrate’s report and recommendation in the respondent’s underlying civil action. Additionally, the respondent contended that the facts in those documents “tainted” the instant proceedings and compromised the referee’s independent review of the facts. In rejecting Mr. Shank-man’s claim, the Supreme Court of Florida noted that:
[t]he “ease law unequivocally supports the referee’s taking judicial notice of the federal report and recommendation and order in this bar disciplinary case.” See, e.g., Fla. Bar v. Head,27 So.3d 1 (Fla.2010); Tobkin,944 So.2d at 224 ; Fla. Bar v. Vining,707 So.2d 670 , 672 (Fla.1998); Fla. Bar v. Calvo,630 So.2d 548 , 549-50 (Fla.1993); Fla. Bar v. Rood,620 So.2d 1252 , 1255 (Fla.1993). Thus, the referee could properly consider the federal district court’s order and magistrate’s report and, although not done here, the referee cold have relied “upon them as support for the disciplinary ftndings of fact” [emphasis provided]. Head,27 So.3d at 8 .
Shankman, at 2 [170].
The Court relied on this same principle in a case decided a few days earlier: The Florida Bar v. Behm [
Accordingly, standing alone, the three sanctioning orders entered by the federal bankruptcy judge on April 26th, May 15th, and June 7th, 2006 are sufficient to meet The Florida Bar’s burden of proof as to all charges related to the Walker bankruptcy.
Similarly, in Florida Bar v. Head,
Moreover, as the Bar points out, the referee also heard the testimony of the Bar’s bankruptcy expert, Patrick Scott, which clearly supported the referee’s findings of fact. Mr. Scott testified that the kind of bankruptcy proceeding respondent was involved in is typically a very simple proceeding and that instead of properly
Next, respondent contends that the referee’s factual findings cannot be upheld because she was unable to confront her “accuser.” She states that the Bar refused to make Judge Hyman, the federal bankruptcy court judge, available for deposition or appear as a witness at trial. She further states that she was repeatedly “blocked” from taking the judge’s deposition and that she was “precluded” from conducting any discovery related to the “complaining witness-judge.” Respondent does not specifically explain in her briefs how she was blocked or precluded from deposing or calling Judge Hyman as a witness at trial. However, the record shows that she sought to have the referee issue a subpoena for deposition to Judge Hyman, that the Bar objected, and that the referee, treating the Bar’s objection as a motion to quash, refused to issue the subpoena.
The Court reviews a referee’s rulings on discovery matters using an abuse of discretion standard. See Fla. Bar v. Berthiaume,
II. DISCIPLINE
In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Ratiner,
Here, the referee recommended that respondent be suspended for ninety days and be required to pay the Bar’s costs. In recommending a suspension of ninety days, the referee cited the following cases: Florida Bar v. Committe,
Additionally, as discussed in detail in his orders, the bankruptcy judge found that respondent made numerous allegations of wrongdoing and dishonesty against opposing counsel in the bankruptcy case with no basis in fact for doing so. The bankruptcy judge concluded that her conduct in making these baseless allegations was “objectively unreasonable and vexatious” and “sufficiently reckless to warrant a finding of conduct tantamount to bad faith.” Further, as evidenced by Judge Hyman’s May 15, 2006, and June 7, 2006, orders, respondent intentionally violated the court order directing her to stop filing “notices of filing” in the bankruptcy proceeding and was again sanctioned by the bankruptcy court for doing so.
Given the obvious seriousness of respondent’s misconduct in this case, we conclude that a ninety-one-day suspension is warranted. In Florida Bar v. Head,
CONCLUSION
Accordingly, Mary Alice Gwynn is hereby suspended from the practice of law for ninety-one days. The suspension will be effective thirty days from the filing of this opinion so that Gwynn can close out her practice and protect the interests of existing clients. If Gwynn notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Mary Alice Gwynn shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Gwynn shall accept no new business from the date this opinion is filed until she is reinstated.
Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Mary Alice Gwynn in the amount of $21,060.27, for which sum let execution issue.
It is so ordered.
Notes
. The referee found that count I of the complaint had not been proven. The Bar does not seek review of that finding. It is therefore approved without further discussion.
. Respondent raises the following issues in addition to those discussed below: (1) whether the referee improperly considered her conduct during the disciplinary proceedings as a new count or new rule violation against her; (2) whether the referee erred in failing to conduct a bifurcated hearing with a separate evidentiary phase and a penalty phase; (3) whether the referee improperly "punished” her for maintaining her innocence; and (4) whether the referee erred in awarding costs to the Bar because she had no opportunity to challenge the costs. We find these issues to be without merit and do not address them further in this opinion.
. In Florida Bar v. Calvo,
. In that opinion, the district court reversed a directed verdict granted in favor of the defendant as a sanction for trial counsel’s (respondent Tobkin’s) misbehavior during the course of the litigation and at trial. The court determined that such a sanction was inappropriate where the record did not support a finding that the client herself was personally involved in the attorney’s misconduct. However, the opinion detailed various instances of misconduct and improper behavior on respondent’s part and found his actions before the trial court "willful, deliberate, and contumacious.” Rose,
. Respondent also takes issue with two specific statements in the referee's report, not included in the referee’s "factual findings” per se: (1) that "on or about February 18, 2009, respondent withdrew her guilty plea” in the disciplinary proceeding; and (2) that respondent “sat before [the referee] and testified that she did this because she believes the judge was part of an 'old boys club.' ” Respondent contends that she never entered a guilty plea in these proceedings. However, while this may be technically correct, on January 20, 2009, her counsel and bar counsel submitted to the referee a "Joint Stipulation of Settlement,” stating, "Respondent agrees to enter a guilty plea, and sign a Guilty Plea and Consent Judgment in which she formally pleads guilty to violation of the following Rules Regulating the Florida Bar: 4-3.1, 4-3.4(c), 4-8.4(a), and 4-8.4(d)." Based upon this, the referee entered an order cancelling the scheduled final hearing in the case. However, on February 18, 2009, Respondent’s counsel filed a “Motion for Extension of Time To File Report of Referee,” stating that the "language of the guilty plea could not be agreed upon by the parties, however, and the negotiation broke down to the point that Respondent has stated her intention and desire to withdraw her stipulation regarding entering a guilty plea.” Clearly, this is what the referee was referring to in his statement. Further, the statement is irrelevant to any of the material issues in this case. Accordingly, we reject respondent’s argument in this regard.
Respondent also contends that she never testified that she believed the judge was part of an "old boys’ club.” While a review of respondent’s testimony during the final hearing confirms that respondent did not use the words "old boys' club,” she did testify that she believed the bankruptcy judge was biased against her because she was not a bankruptcy lawyer. Thus, although not in so many words, the import of respondent’s testimony was the same. Accordingly, we reject respondent’s argument on this issue.
. See Fla. Stds. Imposing Law. Sanes. 4.52 ("Suspension is appropriate when a lawyer engages in an area of practice in which the lawyer knowingly lacks competence, and causes injury or potential injury to a client.”); 6.12 (“Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action.”); 6.22 ("Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.”); and 7.2 ("Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.”).