Motion To Vacate Order Of Disbarment

IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR,

Case No.: SC05-1149 L.T. Case No.: 2004-10,132(6A)

RECEIVED THOMAS D. HAU.

Complainant v.

CLERK, SUPREME COURT BY

MARK A. ADAMS, 1

Resvondent.

RESPONDENT'S VERIFIED MOTION TO VACATE ORDER ENTERED ON JULY 12,2007 DISBARRING THE RESPONDENT COMES NOW, the Respondent, MARK A. ADAMS, Esquire and files the Respondent's Motion to Vacate this Court's Order entered on July 12,2007 disbarring the Respondent showing: Statement of Facts

1.

On May 14,2007, the Clerk of this Court issued an order requiring the Respondent to file a proper initial brief within fifteen (15) days and served the same to the Respondent via mail. (Emphasis added.)

2.

The Respondent timely filed the Respondent's Motion for Clarification of this Court's Order entered on May 14,2007 which pointed out that previous orders entered in this action had not required the Clerk or the Florida Bar to prepare an index to the record which made it impossible for the Respondent to cite to the appropriate page numbers of the record as required by Florida Rule of Appellate Procedure 9.210(b). This motion also pointed out that the

order entered on May 16,2006 denied the Respondent's alternative request to file a brief referring to the documents filed in this action and allowing the Respondent to include an appendix with key documents necessary for this Court's review of this disciplinary proceeding. Furthermore, this motion pointed out that unless this Court granted the requested relief, it will have effectively prevented the Respondent from preparing a proper brief and will have deprived the Respondent of due process.1 3.

On July, 12,2007, the Clerk of this Court issued an order denying the Respondent's Motion for Clarification of this Court's Order entered on May 14,2007, an order denying the Respondent's Motion to Correct the ~ocket: an order denying the Respondent's Motion to Toll Time to File Brief, and an order dismissing the Respondent's Petition for Review, and the Clerk of this

' The Respondent has also previously filed a motion showing that the Clerk of this Court acknowledged that documents, which are required to be included in the file and which the Respondent discovered were missing from it, were instead stored in a room in the Court's sub-basement. The documents which were missing from the file included transcripts, motions, and orders regarding proceedings before the referee which showed the numerous errors which were committed by the referee including preventing the Respondent from calling witnesses in his defense, prohibiting the Respondent from deposing witnesses who were listed as witnesses by the Florida Bar, allowing one witness to represent other witnesses, and entering an order without a hearing on the Respondent's Motion to Dismiss. 'Although the Court denied the Respondent's Motion to Correct the Docket which was filed on May 3 1,2007, the Clerk or another person with access to this Court's online docket corrected the error shown in this motion by June 1,2007 even though this motion did not show up on this Court's online docket until June 5, 2007, five days after it was filed.

-

Court served these four orders to the Respondent via U.S. Mail. No other order entered on July 12,2007 was served to the Respondent by the Clerk of this Court or received by the Respondent. 4.

On July 19,2007, Ms. Sheryl Walker of the Florida Bar sent a letter to the Respondent which stated in part, "The filing of a motion for rehearing does not alter the effective date of the disbarment." The Florida Bar's letter included the Florida Bar's Failure to Pay Notice and an Affidavit required by Bar Rule 3-5.l(g) as enclosures, and it did not contain a copy of any order. The pertinent part of Florida Bar's Failure to Pay Notice states, "Disciplinary costs are deemed delinquent unless they are paid within 30 days after the disciplinary order becomes final. Usually, that is forty-five ~ Florida Bar's letter and its (45) days after the date of the court ~ r d e r . "The enclosures are attached as Appendix A.

5.

On July 27, 2007, the Respondent traveled for over ten hours to file the Respondent's Motion for Rehearing of Order Entered on July 12,2007 Dismissing the Respondent's Petition for Review, the Respondent's Second Motion to Correct the Docket, and the Respondent's Motion to Toll Time to File Brief and to review the case file.

The Florida Bar's Failure to Pay Notice indicates that the Florida Bar is aware that the rules concerning motions for rehearing apply to orders of disbarment.

6.

When the Respondent reviewed the case file on July 27,2007, he learned that the Clerk of this Court had entered a fifth order on July 12,2007 which indicated that the Respondent was permanently disbarred and which provided that a motion for rehearing shall not delay the effective date of this order.4 This order was only signed by the Clerk of this Court and the Deputy Clerk refused to provide any document showing that this order was authorized by the required number of Justices or the names of the Justices who authorized this order. On July 27,2007, the Respondent also learned that the documents which had been stored in the sub-basement had been put back together with the file, although it was not clear when such action was taken, but most importantly, the Respondent learned that a number of exhibits which he submitted to the referee, Gregory P. Holder, were missing from the file and also not accounted for by Judge Holder on the list that he prepared of the Respondent's exhibits.'

The Respondent does not know the exact language used in this order as the Respondent was not served with a copy and has not received one, and although the Respondent informed the Deputy Clerk that he had not received a copy of this order and requested one, the Deputy Clerk rehsed to provide one to the Respondent without charging a fee for the same. 'If the Justices had reviewed the transcripts of the proceedings before the referee as required by Rule 3-7.7(a)(2), they would have surely noticed the fact that several of the exhibits submitted to the referee by the Respondent were missing from the case file.

8.

If the Respondent had been served with the order indicating that he was permanently disbarred, he would have filed a timely motion for rehearing pointing out the points of law, the rules of procedure, and the facts that this Court had overlooked in reaching its decision in addition to the other motions which he filed on July 27,2007.

9.

To date the Respondent still has not received a copy of the order entered by the Clerk of this Court on July 12,2007 indicating that the Respondent is permanently disbarred and that a motion for rehearing shall not delay the effective date of this order.

10.

As the Florida Bar's letter dated July 19,2007 did not contain a copy of the order permanently disbarring the Respondent, it appears that the member of the Clerk's office who was responsible for mailing copies of the orders entered on July 12,2007 also failed to include this order when mailing the orders entered on July 12,2007 to counsel for the Florida Bar.

11.

The record shows that the Florida Bar did not file any response opposing the Respondent's Motion for Clarification of this Court's Order entered on May 14,2007, the Respondent's Motion to Correct the Docket, or the Respondent's Motion to Toll Time to File Brief, and the record shows that the Florida Bar did not file any motion seeking to limit the Respondent's right to file a motion for rehearing or the effect of a motion for rehearing.

12.

Furthennore, the Respondent has not found and the Florida Bar has not cited any provision of the Rules Regulating the Florida Bar that provides for any other way in which to refer to the record in the Respondent's brief in support of his petition for review other than by citation to the appropriate page numbers in the record as required by Florida Rule of Appellate Procedure

9.21O(b). Of course, to do so, the record must be prepared as required by Florida Rule of Appellate Procedure 9.200, and the Respondent has not found nor has the Florida Bar cited any provision in the Rules Regulating the Florida Bar which provides that the record is not required to be prepared in accordance with Florida Rule of Appellate Procedure 9.200 or that this rule does not apply to this Court's review of disciplinary proceedings. 13.

In addition, the record shows that several of the exhibits submitted by the Respondent to the referee are not included in the case file.

14.

The respondent has diligently filed this motion, and the Respondent and his clients will suffer extreme prejudice if this motion is not granted. The Florida Bar would not suffer any prejudice if this motion i s granted.

15.

The record shows that this Court has not yet issued its mandate in this action and that the Florida Bar has not responded to any of the motions filed by the Respondent on July 27,2007.

Standard of Law 16.

Rule 3-7.7 of the Rules Regulating the Florida Bar provides the procedure for review of reports and judgments entered by a referee in disciplinary proceedings.

17.

Pursuant to Rule 3-7.7(f), the Florida Rules of Appellate Procedure apply to petitions for review of disciplinary proceedings before the Supreme Court of Florida unless such rules are inconsistent with Rule 3-7.7.

18.

The Rules Regulating the Florida Bar do not provide that Florida Rules of Appellate Procedure 9.020,9.200,9.210,9.300,9.330, or 9.420 do not apply in disciplinary proceedings nor do the Bar Rules contain provisions that are inconsistent with or modify these Appellate Rules, and therefore, the Florida Rules of Appellate Procedure 9.020,9.200,9.210,9.300,9.330,and 9.420 are applicable to this motion.

19.

"All rules prescribed for court procedure are binding on the court and its clerk as well as on litigants and their counsel." Esch v. Forster, 127 So. 336,336 (Fla. 1930). (Emphasis added.) "The burden of proving that observance of the rules of practice has been waived is upon the party claiming the waiver." Id at 337.

20.

"We have emphasized time and again that "[tlhe touchstone of due process is protection of the individual against arbitrary action of government,"

Wolffv.McDonnell, 418 U.S. 539,558,94 S.Ct. 2963,2976,41 L.Ed.2d

935 (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin,

..., or in the exercise of power

without any reasonable justification in the service of a legitimate

governmental objective, see, e.g., Daniels v. Williams, 474 U.S., at 331, 106 S.Ct., at 664 (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised)." County of Sacramento v. Lewis, 118 S. Ct. 1708,1716 (1998). (Emphasis added.)

21.

A Florida appellate court has jurisdiction to consider a motion for extraordinary relief if it is filed before the appellate court has issued its mandate. Regan v. ITT Industrial Credit Co., 469 So.2d 1387, 1390 (Fla. 1st DCA 1984). Legal Argument

I. The rules do not allow for entry of an order which deprives the Respondent of the rights afforded by the rules concerning motions for rehearing, and therefore, the order disbarring the Respondent should be vacated.

22.

Florida Rule of Appellate Procedure 9.330(a) provides that a motion for rehearing may be filed within 15 days of an order or within such other time set by the Court. However, Rule 9.330 does not authorize the Court to

eliminate the right to file a motion for rehearing except pursuant to Rule 9.330(d) in circumstances not applicable to this proceeding. 23.

Florida Rule of Appellate Procedure 9.020(i) provides that if a timely motion for rehearing is filed, then the order shall not be deemed rendered until such motion is resolved. Furthermore, Rule 9.020(i) does not authorize the Court to change the effective date of rendition of an order.

24.

"All rules prescribed for court procedure are binding on the court and its clerk as well as on litigants and their counsel." Esch v. Forster, 127

So. 336,336 (Fla. 1930). (Emphasis added.) 25.

However, the Clerk of this Court entered an order on July 12,2007 which indicated that the Respondent was permanently disbarred and which provided that a motion for rehearing shall not delay the effective date of this order even though no such relief was requested by the Florida Bar.

26.

As the applicable rules do not allow for entry of an order which deprives the Respondent of the rights afforded by the rules concerning motions for rehearing and as the Flarida Bar did not even seek such relief, the order disbarring the Respondent violates due process and should be vacated. 11. The Clerk of this Court failed to serve the order disbarring the Respondent as required by the rules and the dictates of due process, and therefore, the order disbarring the Respondent should be vacated.

27.

Florida Rule of Appellate Procedure 9.420(b) requires service of a copy of all documents filed under these rules either before or immediately aRer filing.

28.

"All rules prescribed for court procedure are binding on the court and its clerk as well as on litigants and their counsel." Esch v. Forster, 127

So. 336,336 (Fla. 1930). (Emphasis added.) 29.

Notice is an essential element necessary for the enforcement of any order, and proof of service is critical. Suggs v. State, 795 So.2d 1028, 1030 (Fla. 2d DCA 2001).

30.

When a judgment or order has not been timely served, it should be vacated so that the prejudiced party is not deprived of rights afforded by the rules of procedure and procedural due process. See, e.g., Gibson v. Buice, 381 So.2d 349,350-35 1 (Fla. 5th DCA 1980) citing Rogers v. First National Bank at Winter Park, 232 So.2d 377,378 (Fla. 1970).

31 .

"For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale, 1 Wall. 223,233, 17 L.Ed 53 1.

See Windsor v. McVeigh, 93 U.S. 274,23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841,42 L.Ed. 215; Grannis v. Oredean, 234 U.S. 385,34

S.Ct 779,58 L.Ed. 1363. It is eyually fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545,

552,85 S.Ct. 1187, 1191, 14 L.Ed.2d 62." Fuentes v. Shevin,92 S. Ct. 1983,1994 (1972). (Emphasis added). 32.

To date the Respondent still has not received a copy of the order entered by the Clerk of this Court on July 12,2007 indicating that the Respondent is permanently disbarred.

33.

In addition, the Florida Bar's letter dated July 19,2007 did not contain a

copy of the order permanently disbarring the Respondent, and therefore, it appears that the member of the Clerk's office who was responsible for mailing copies of the orders entered on July 12,2007 also failed to include this order when mailing the orders entered on July 12,2007 to counsel for the Florida Bar. The Florida Bar's letter and its enclosures are attached as Appendix A. 34.

As the Clerk failed to serve a copy of the order entered on July 12,2007 permanently disbarring the Respondent to the Respondent and also apparently to the Florida Bar, the Respondent did not receive timely notice of such order and was deprived of his right to file a timely motion for rehearing, and therefore, the order disbarring the Respondent violates due

process and should be vacated. Furthermore, as the Respondent still has not been served with a copy of the order disbarring him, such order should not be enforced. 111. As this Court did not require preparation of an index to the record as

required by the rules and as the record is not complete, the Respondent has been deprived of due process, and therefore, the order disbarring the Respondent should be vacated. 35.

Florida Rule of Appellate Procedure 9.200 requires an index to the record to be prepared by the clerk of the lower court.

36.

Florida Rule of Appellate Procedure 9.210(b) requires the parties to cite to the appropriate page numbers of the record in their briefs; however, without preparation of an index that cannot be done.

37.

The Respondent's Motion for Clarification of this Court's order entered on May 14,2007 pointed out that previous orders entered in this action had not required the Clerk or the Florida Bar to prepare an index to the record which made it impossible for the Respondent to cite to the appropriate page numbers of the record as required by rule 9.210(b). This motion also pointed out that the order entered on May 16,2006 denied the Respondent's alternative request to file a brief referring to the documents filed in this action and allowing the Respondent to include an appendix with key

documents necessary for this Court's review of this disciplinary proceeding. Furthermore, this motion pointed out that unless this Court granted the requested relief, it will have effectively prevented the Respondent from preparing a proper brief and will have deprived the Respondent of due process. 38.

Moreover, Florida Rule of Appellate Procedure 9.200(fi(2) states, "If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record has been given." The comment concerning subdivision ( f ) states, "The new rule is intended to ensure that appellate proceedings will be decided on their merits.. ..*,

39.

Rule 3-7.6(n)(2) of the Rules Regulating the Florida Bar states, "The record shall include all items properly filed in the cause including pleadings, recorded testimony, if transcribed, exhibits in evidence, and the report of the referee."

40.

Due process requires a complete record on appeal. See, e.g., Thomas v. State, 828 So.2d 456,457 (Fla. 4th DCA 2002) and Berube v. State, 771

Sodd 1263 (Fla. 2d DCA 2000).

41.

"An accurate and comprehensive record of the proceedings below is absolutely essential to fair and efficient appellate review." Haist v. Scarp, 366 So.2d 402,404 (Fla. 1978). (Emphasis added.) "This Court

should provide every incentive to parties to develop and preserve an adequate record." Id. 42.

"All rules prescribed for court procedure are binding on the court and its clerk as well as on litigants and their counsel." Esch v. Forster, 127 So. 336,336 (Fla. 1930). (Emphasis added.) "The burden of proving that observance of the rules of practice has been waived is upon the party claiming the waiver." Id at 337.

43.

"A duty evolves upon the attorneys for both appellant and appellee to see to it that a record is sent here which can be used with a minimum of time loss." Lithgow Funeral Centers v. Loftin, 60 So.2d 745,746 (Fla. 1952).

44.

The record shows that several of the exhibits submitted by the Respondent to the referee are not included in the case file and that for some period of time much of the record was stored in the Court's sub-basement rather than being kept with the file.6

The documents which were stored in the Court's sub-basement included transcripts, motions, and orders regarding proceedings before the referee which showed the numerous errors which were committed by the referee. On July 27, 2007, the Respondent discovered that a significant number of exhibits which he submitted in his defense were still missing fiom the case file.

45.

Furthermore, Rule 3-7.7(a)(2) of the Rules Regulating the Florida Bar states, "The Supreme Court of Florida shall review all reports and judgments of referees recommending probation, public reprimand, suspension, disbarment, or resignation pending disciplinary proceedings." (Emphasis added.) As the referee, Judge Gregory P. Holder, recommended disbarment of the Respondent, this Court is required to conduct a review of such decision, and such review would have shown that the record is incomplete.

46.

As no index to the record was prepared as required by the Rule 9.200, the Respondent was effectively prevented from filing a brief which complied with the Rule 9.210(b).

47.

As the Clerk of this Court entered orders denying the Respondent's alternative request to file a brief referring to the documents filed in this action and allowing the Respondent to include an appendix with key documents necessary for this Court's review of this disciplinary proceeding, the Respondent was effectively prevented from filing any brief.

48.

As no index to the record was prepared as required by the Rule 9.200 and as the Clerk of this Court failed to store the record transmitted to this Court by the referee in the case file, the Respondent did not learn that the referee had failed to transmit all of the Respondent's exhibits to this Court until he reviewed the case file on July 27,2007, and therefore, the Court did not have

an opportunity to review the complete case file as required by Rule 37.7(a)(2) and the Respondent was effectively deprived of his right to supplement the record pursuant to 9.200(0(2). 49.

Due to the foregoing, the Respondent was deprived of due process, and therefore, the order disbarring the Respondent should be vacated.

IV. As the Respondent was deprived of an opportunity to respond or file a brief after his motions were denied on July 12,2007, the order disbarring the Respondent violates due process and should be vacated.

50.

Pursuant to Florida Rule of Appellate Procedure 9.300(b), service of a motion shall toll the time schedule of any proceeding until disposition of the motion except as provided by Rule 9.300(d).

5 1.

When considering the of Florida Rule of Appellate Procedure 9.300(b), this Court has held that "The rule is clear on its face that it suspends the time schedule of any and all proceedings irrespective of the movant." St. Paul Fire & Marine Ins. Co. v. Indemnity Ins. Co. of North America, 675 So.2d

590,592 (Fla. 1996). 52.

"For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale, 1 Wall. 223,233, 17 L.Ed. 531.

See Windsor v. McVeigh, 93 U.S. 274,23 L.Ed. 914; Hovey v. Elliott, 167

U.S. 409, 17 S.Ct. 841,42 L.Ed. 2 15; Grannis v. Oredean, 234 U.S. 385,34 S.Ct 779,58 L.Ed. 1363. It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545,

552,85 S.Ct. 1187, 1191, 14 L.Ed.2d 62." Fuentes v. Shevin, 92 S. Ct. 1983, 1994 (1972). (Emphasis added). 53.

On July, 12,2007, the Clerk of this Court issued an order denying the Respondent's Motion for Clarification of this Court's Order entered on May 14,2007, an order denying the Respondent's Motion to Correct the Docket, an order denying the Respondent's Motion to Toll Time to File Brief, and an

order dismissing the Respondent's Petition for Review. In addition, the Respondent has since learned that the Clerk also entered an order disbarring the Respondent on July 12,2007. 54.

However, pursuant to Rule 9.300(d), the time period for filing a brief should have been tolled and extended to allow the Respondent a meaningful opportunity to respond or file a brief after the orders were entered denying his motions on July 12,2007.

55.

As the Respondent was deprived of any opportunity to respond after entry of the orders denying his motions on July 12,2007 and before entry of an order

disbarring the Respondent on that same date, the Respondent was deprived of due process by such action, and therefore, the order disbarring the Respondent should be vacated.

V. As the order disbarring the Respondent was entered by the Clerk of this Court without any indication that it was supported by at least four Justices, it may violate Article V, 5 3(a) of the Florida Constitution, and therefore, it should be vacated. 56.

The pertinent part of Article V, § 3(a) of the Florida Constitution states, "The concurrence of four justices shall be necessary to a decision."

57.

However, the orders entered by the Clerk of this Court on July 12,2007 do not indicate which justices approved of such decisions, and therefore, it appears that such decisions were not only contrary to the applicable rules but were also entered in violation of Article V, 5 3(a) of the Florida ~onstitution.'

58.

As the names of the Justices who may have authorized the Clerk of this Court to enter the orders on July 12,2007 are not shown on the record and as

The Respondent previously requested to see the Justices' authorizations for other orders entered in this proceeding pursuant to Florida's public records laws, but the Clerk of the Court refised to provide access to such documents. The Clerk of the Second District Court of Appeal of Florida has also unlawfully issued orders concerning the Respondent contrary to the judges' directions, without authorization by the required number of judges, and without any authorization as shown by the exhibits filed in this action before the referee.

the Clerk has refused to disclose such Justices' names, if any, the orders entered on July 12,2007 appear on their face to violate Article V, $3(a) of the Florida Constitution, and therefore, the order disbarring the Respondent should be vacated.

VI. As the foregoing shows that this Court should enter an order vacating the order disbarring the Respondent, this Court should immediately issue an order staying the enforcement of such order pending the resolution of this motion in order to avoid irreparable harm to the Respondent and his clients.

59.

Notice is an essential element necessary for the enforcement of any order, and proof of service is critical. Snrggs v. State, 795 So.2d 1028, 1030 (Fla. 2d DCA 2001).

60.

When a judgment or order has not been timely served, it should be vacated so that the prejudiced party is not deprived of rights afforded by the rules of procedure and procedural due process. See, e.g., Gibson v. Buice, 381 So.2d 349, 350-351 (Fla. 5th DCA 1980) citing Rogers v. First National Bank at

Winter Park, 232 So.2d 377,378 (Fla. 1970). 61.

"For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale, 1 Wall. 223,233, 17 L.Ed. 53 1.

See Windsor v. McVeigh, 93 U.S. 274,23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841,42 L.Ed 215; Grannis v. Oredean, 234 U.S. 385,34 S.Ct. 779,58 L.Ed. 1363. It is equally fbndarnental that the right to notice and an opportunity to be heard 'must be granted at a meaningfbl time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545,552,85 S.Ct. 1187, 1191, 14 L.Ed.2d 62." Fuentes v. Shevin, 92 S. Ct. 1983,1994 (1972). (Emphasis added). 62.

"We have emphasized time and again that "[tlhe touchstone of due process is protection of the individual against arbitrary action of government,"

Wolflv. McDonnell, 418 U.S. 539,558,94 S.Ct 2963,2976,41 L.Ed.2d

935 (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, ..., or in the exercise of power without any reasonable justification in the service of a legitimate

governmental objective, see, e.g., Daniels v. Williams, 474 U.S., at 33 1, 106 S.Ct., at 664 (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised)." County of Sacramento v. Lewis, 118 S. Ct. 1708, 1716 (1998). (Emphasis added.)

63.

The Respondent and his clients will suffer extreme prejudice and irreparable harm if this motion is not granted.

64.

The Florida Bar would not suffer any prejudice if this motion is granted.

65.

As the foregoing shows that this Court should enter an order vacating the order disbarring the Respondent and that such order should not be enforced, this Court should immediately issue an order staying the enforcement of such order pending the resolution of this motion in order to avoid irreparable

harm to the Respondent and his clients. WHEREFORE, the Respondent respectfblly requests that this Court issue an emergency order staying enforcement of the order disbarring the Respondent

pending the Court's resolution of this motion, issue an order vacating the order entered on July 12,2007 disbarring the Respondent, and issue an order granting the Respondent a reasonable time of at least twenty days in which to file his brief, allowing the Respondent to supplement the record, allowing the Respondent to file a brief referring to the documents filed in this action, and allowing the Respondent

to include an appendix with key documents necessary for this Court's review of this discipljnary proceeding. Under penalties of perjury, I declare that I have read the foregoing motion and the facts stated in it are true.

P

Mark A. Adams, Esquire Fla. Bar No. 0193178

'_-'

Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been served by U.S. Maii to Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar at 5521 W. Spruce Street, Suite C49; Tampa, FI, 33607 and to Staff Counsel for the Florida Bar at 651

E. Jefferson Street; Tallahassee, Florida 32399 on this

'7k+

day of August,

.,

Mark A. Adams, Esquire Fla. Bar No. 0193 178

CERTIFICATE OF COMPLIANCE 1HEREBY CERTIFY that this document complies with the requirements of

Florida Rule of Appellate Procedure 9.210(a)(2).

il

Mark A. Adams, Esquire Fla. Bar No. 0193 178 P.O. Box 1078 Valrico, FL 33595 Telephone: 813-654-1235

Appendix A

July 19,2007

Mr. Mark A. Adams Post Office Box 1078 Valrico. FL 33595-1078 Re:

The Florida Bar v. Mark A. Adams TFB File No. 2004- 10,132(6A)

Dear Mr. Adams: Pursuant to the order of the Supreme Court of Florida dated July 12, 2007, you were permanently disbarred effective August 13,2007. The filing of a motion for rehearing does not alter the effective date of the disbarment. The court's order also assessed costs in the amount of $8,948.32. Your costs are due in this oflice no later than August 27, 2007. A Failure to Pay Notice providing important information relating to cost assessments is enclosed. You must follow the provis~onsof Rule 3-5.l(g). A copy of the order must be provided to your clients, opposing counsel, and certain courts, and you must provide an affidavit to us verifying that this has been done. A form affidavit is enclosed. The executed affidavit must be provided to this office within 30 days of the court's order. If you had no clients or pending matters at the time the order was served in this case. the affidavit should so state. Should you accept employment with a Florida lawyer or law firm, additional requirements apply. Please see Rule 3-6.1 in this respect. In order to avoid an appearance of being a lawyer in good standing, you must eliminate all m d ~ c ~ofa attorney status (telephone listings, stationery, checks, business cards, office signs, etc.). Adam A. Stetson, Paralegal, will he your contact person at The Florida Bar for issues relating to your compliance with the court's order. Mr. Stetson may be contacted at (850) 561-5774 should there he any questions regarding this matter. Sincerely,

Sheryl Remien Walker, CP, CFLA Paralegal. Lawyer Regulation

Enclosures - Failure to Pay Notice, 3-5.l(g) Affidavit cc.

Jodi Anderson Thompson, Bar Counsel, Tampa Branch Office

FAILURE TO PAY NOTICE 'The Supreme Court of Florida has entered an order assessing costs, fees, imposing fee arbitration and/or restitution obligations. The requirements of this order create certain obligations of which you should be aware. Making Payment Please send your check or money order made payable to "The Florida Bar" to the attention of Adam A. Stetson, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300. Please place The Florida Bar file number on the check so we may extend proper credit for the payment. You may also make payment of fees and/or costs with your credit card (Visa and Mastercard only) by submitting the enclosed credit c a d form. The entire balance must be paid; no partial payment will he accepted. Delinquent Costs Discipli~~ary costs are deemed delinquent unless they are paid within 30 days after the disciplinary order becomes final. Usually, that is forty-five (45) days after the date of the court order. The time for payment may be extended by The Board of Governors (hereafter the Board) for good cause shown. In order for the Board to approve an extension of time a payment plan must be requested and certain financial information disclosed. Ordinarily payment plans are not approved unless extreme financial hardship is proven through financial affidavits that include a statement of assets and liabilities. Delinquent Fees Fees are deemed delinquent unless they are paid within 90 days after the court's order becomes final. The time for payment may be extended by The Board of Governors (hereafter the Board) for good cause shown. Delinquent Fee Arbitration Award@) Fee arbitration award(s) are deemed delinquent unless they are paid within 90 days after the recommendation becomes final. The time for payment may be extended by the Board for good cause shown. Delinquent Restitution Restitution is deemed delinquent unless it is made within the time Frame and in thc manner provided by the court in the order or the opinio~iimposing the obligation. As in the case of costs, the time for making restitution may be extended by the Board for good cause shown. The same disclosure and the same procedures for obtaining the Board's approval of an extension of time for making restitution apply as in a request for extension of time in which to make payment for disciplinary costs,

Effect of Delinquency If fees, costs or restitution become delinquent, you will be deemed a delinquent member of The Florida Bar and as such will not be entitled to practice law in Florida until such time as the delinquency is cured. Cure of the delinquency will include milking payment of all required obligations, providing proof of payment, and filing a petition for removal of delinquency status. 'Thereafter the petition will be reviewed and, if appropriate, the delinquency will be removed.

Lapse of Membership Status Any member who remains delinquent for a period of five years or longer will lose bar membership. A member whose membership has lapsed may return to the practice of law in Florida only through application to the Florida Board of Bar Examiners, which will include taking and passing the bar examination and successful completion of the character and fitness evaluation.

Recording Cost Judgment If costs become delinquent as described above The Florida Bar may record the order as a judgment in the appropriate public records. The judgment will remain on those records until a satisfaction is recorded upon payment of costs and accrued interest.

Maintaining Contact There may be important information that we need to communicate to you after the court order becomes final. For this reason, it is important for you to maintain an accurate mailing address, telephone number and other contact information even during the terms of a suspension. In fact, The Rules Regulating The Florida Bar mandate that all members of The Florida Bar keep current contact information on file.

If you have any questions about these issues please feel kee to contact Adam A. Stetson by telephone at (800) 342-8060, ext. 5774

The Florida Bar Lawyer Regulation - Headquarters Office Authorization for Payment by Credit Card Naine Bar Number Address City Phone Fax E-mail

Zip

State

The Florida Bar File No. Date of Assessment Amount Assessed Payment Amount Credit Card Number Expiration Date

n Visa

Mastercard (Check One) to the credit card listed

I hereby authorize The Florida Bar to charge $ above. Signature

Date

Please submit this form to Adam A. Stetson at The Florida Bar, 65 1 East Jefferson Street, Tallahassee, Florida 32399. If you have any questions, please contact Mr. Stctson at (850) 561-5774 or at [email protected].

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TEKNO. 22102 31402 22103 ENHANCE

44002 400L 4402

FOR OFFICE USE ONLY

AM~UNT 9

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$

$ $ $ $ $

1

STATE OF FLORIDA COUNTY OF

AFFIDAVIT

I, Mark A. Adams, affer being duly sworn, say: This affidavit is submitted pursuant to Rule 3-5.l(g) of the Rules of Discipline in conjunction with the decision in The Florida Bar v. Mark A. Adarns, SC-051149; The Florida Bar File No. 2004-10,132(6A). 1.

I had no clients(s) or matter(s) pending at the time of the order directing me to cease the practice of law.

-2.a.

I have furnished a copy of the court order to all my clients with matters pending when the court's order was served on me; and

b.

to all opposing counsel or co-counsel in the matters listed in 2a. above; and

c.

To all courts, tribunals, or adjudicative agencies before which I am counsel of record.

d.

The names and addresses of all persons and entities that have been hmished with such notification are indicated on the attached list (Exhibit A), and such is a complete listing of all persons and entities notified pursuant to this rule.

FURTHER AFFIANT SAYETII NO?'.

SWORN TO AND SUBSCRIBED before me this

day of

,2007.

Notary Public Print, type, or stamp commission name of notary public Personally known to me or produced the following identification: Type of Identification Return to:

The Florida Bar Attention: Adam A. Stetson, Paralegal 65 1 East Jefferson Street 'Tallahassee, Florida 32399-2300